Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396

Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396

P-2007-0665

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Nicholas Antoncic

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen O’Neil

Vice-Chair

FOR THE GRIEVOR

Marc Munro Counsel Graydon Sheppard, B.A. LL.B

FOR THE EMPLOYER

Paul Meier Counsel Ministry of Government Services

HEARING

July 20, 2007.

Decision

1This decision is for the purpose of providing reasons to the parties for my conclusion that I have jurisdiction to hear the parties’ dispute over whether their July 20th, 2007 Memorandum of Settlement, which settled a grievance filed by Nicholas Antoncic concerning his dismissal for cause, has been breached. The employer claims that the grievor has breached that agreement in a number of ways, including by launching a civil action against two civil servants for conspiracy and defamation. The issue is whether I should decline jurisdiction over the employer’s claim of breach of the settlement, as requested by the grievor, or assert it as requested by the employer. Written submissions were invited and received from both parties on this question.

2The portions of the confidential agreement necessary to these reasons are two. Firstly, one of the introductory recitals reads as follows:

…the parties agree to the following terms and condition as full and final resolution of the above captioned grievance and all other outstanding individual grievances, complaints, claims and matters regarding the Grievor’s past employment.

3Further, paragraph 16 of the Memorandum of Settlement reads as follows:

The parties agree that Vice-Chair K. O’Neil shall remain seized of the matter for the sole purpose of overseeing the effective implementation or resolving any breach of the terms and conditions of this settlement.

4The employer argues that a straightforward reading of the above wording indicates that the parties agreed that, as part of the resolution of the grievance filed by the grievor with the Public Service Grievance Board, I should remain seized concerning issues relating to implementation or breach of the Memorandum of Settlement and that accordingly the Board should convene a hearing to exercise that jurisdiction. Counsel for the grievor argues in his written submissions that such a hearing should not be convened, unless the matter is referred to the Board by a Court order. Most specifically, it is submitted that it would be duplicative of the proceedings before the Court, in which the employer has moved to strike the action for abuse of process or, in the alternative, to stay it pending the Board’s process.

5Counsel for the grievor further submits that the Courts have concurrent jurisdiction over matters related to employees such as Mr. Antoncic and that the parties have not agreed to preclude the jurisdiction of the court. Moreover, counsel for the grievor states that by moving to dismiss the Court action, and only in the alternative seeking an order staying it pending a determination by this Board, the employer has waived the arbitral process, and acceded to the jurisdiction of the court to determine the issues raised in the instant complaint. To this, employer counsel replies that, firstly, the employer has not yet been made a party to the civil action. Further, since the grievor has opposed the Ministry’s right to become a party to the civil suit, taking the position that it has no standing before the Court, acceding to the grievor’s submissions would leave the employer with no recourse flowing from the Memorandum of Settlement.

6Having considered the written submissions of the parties, it is evident that both parties acknowledge that there is jurisdiction in the Board flowing from paragraph 16 of the Memorandum of Agreement. Further, it is clear, that as a general matter, there is concurrent jurisdiction in the Courts and the Public Service Grievance Board over grievances concerning termination for cause, as discussed in Burgess v. Ontario 2001 CanLII 24073 (ON CA), [2001] 199 D.L.R. (4th) 295, 55 O.R. (3d) 507. The issue is whether the Board should accede to the grievor’s request to decline to exercise the retained jurisdiction flowing from the Memorandum of Settlement, in deference to the Court’s jurisdiction over the civil action launched by Mr. Antoncic.

7It is important to underline that, although the Public Service Grievance Board was not the mandatory forum for Mr. Antoncic, he chose the Public Service Grievance Board. Moreover, the parties subsequently, together, contracted to seize a Vice-Chair of the Board with issues regarding implementation or breach of the Memorandum of Settlement. The dispute which the employer seeks to have heard flows directly from that Memorandum. Its essential character relates to the grievance filed and settled before this Board. Thus, there is a clear basis for the exercise of the retained jurisdiction.

8Moreover, the issue of what remedy should flow from any breach is not before the Court. Because of this, and despite the overlap of issues involved in the motion to strike the civil action, I am not persuaded that the proceeding to enforce the Memorandum of Settlement is entirely duplicative of the motion to strike or stay the civil action. Further, the employer has not yet been made a party to the civil action, and the grievor is apparently taking the position that the employer should not be made a party. The materials before me indicate that the motion to strike has been adjourned sine die. Thus, there is uncertainty as to whether or when even the overlapping issues would be heard.

9Further, it is not my view that the employer has waived its contractual right to return to this Board by moving to strike or stay the civil action. Counsel for the grievor argued that the employer had done so, and relied on Newfoundland v. Churchill Falls (Labrador) Corp., [1983] Nfld. And PEIR 181, affirmed [1988] S.C.R. 1085 (S.C.C.) in support. The facts of that case are distinguishable. The litigation was structurally very different; the party that was found to have waived the arbitration provision was a party to the civil action, and had entered pleadings and taken interlocutory steps beyond what the Crown has done in the civil action. The Crown has taken a consistent position both in its motions in the civil action, and before the Board, to the effect that the parties should deal with the enforcement of the settlement in the forum to which they agreed in the Memorandum of Settlement. The Newfoundland case does not stand for the proposition that such conduct amounts to waiver of the enforcement mechanism in the settlement before me. There is no doubt that the Court has control of its own process and will make decisions about the civil action and motions brought before it as they arise. I make no comment about those matters beyond what I have said above, i.e. the materials before me do not indicate that the issue of whether there should be a remedy for any breach of the settlement is before the Court in the civil action.

10In his submissions, counsel for the employer wrote that Mr. Antoncic had taken the position in the course of the civil action that the Board had no jurisdiction because the grievor’s previous Senior Management Group (SMG) classification was one excluded from the Board’s jurisdiction. In this respect, the employer submits that given that the subject matter of the grievance was dismissal for cause, the grievance could be brought to the Board, pursuant to sections 33 and 36 of Regulation 977 under the former Public Service Act. Quite apart from the fact that no issue concerning the grievor’s classification was raised with the Board at any time prior to the signing of the above-noted settlement, no challenge to the Board’s jurisdiction on the basis of the SMG classification appears in the written submissions now before me in respect of whether the Board should convene a hearing. Rather, the grievor’s counsel writes that the Board’s jurisdiction is restricted to matters relating to the decision of the deputy minister to dismiss Mr. Antoncic pursuant to s. 22(3) of the Public Service Act. It is thus not necessary to comment on any arguments concerning the SMG classification made in the context of the civil suit.

11Other than the argument that the claim for enforcement is duplicative of the motions to strike or stay the civil action, counsel for the grievor makes several arguments as to the proper interpretation of the terms of the Memorandum of Settlement, the release clause, why the settlement should not preclude civil actions such as the one launched, and why the Board should not grant the remedies requested by the employer. I have not determined any of those issues, but these submissions make very clear that there is a live dispute over whether the settlement has been breached, and if so, what remedy should flow, which deserves a hearing. On the face of the wording in the Memorandum of Settlement, the parties agreed that I, a Vice-Chair of the Board, am seized of such a dispute. I have determined that at this time, given that the status of the employer in the civil action is uncertain, and the issue of what remedy should be granted if a breach is found is not before the court in any event, there is insufficient reason to decline to convene a hearing or to exercise the jurisdiction the parties agreed the Board should retain.