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The 2011 Ontario Superior Court of Justice, Divisional Court decision, Greater Essex County District School Board v. United Association of Journeymen, Local 552 highlighted the importance of meeting grievance referral deadlines.

The decision involved a grievance that was first filed July, 2004. It was referred to arbitration in December, 2004, exceeding the 14 day time limit outlined in the collective agreement by four months. The vice-chair of the Ontario Labour Relations Board (“OLRB”) adjourned the grievance sine die, and it was not accepted for referral to arbitration until January, 2009. The hearing took place in May, 2010, more than six years after the grievance was first filed. The vice-chair had used subsection 48(16) of the Ontario Labour Relations Act (“OLRA”) to extend the time for referral to arbitration.

The Employer appealed the extension of time, and the Divisional Court found that the extension of time was unreasonable. The Court held that it is a fundamental principle of contract law that terms are to be given their plain meaning. On the plain meaning of the article, the time line of 14 days was mandatory, unless both parties agreed to an extension in writing. The parties contemplated the issue of extension (evidenced by the granting of an extension on written consent of both parties), and drafted the provision accordingly.

The Vice-Chair had concluded that the timeline was not mandatory because no consequence was outlined for a failure to meet the timeline. The Court held that whether language is mandatory or directive will depend on the wording of each agreement. Further, in this case, the consequence was specified in that if the timeline expired, the grievance was deemed abandoned, and so there was nothing to refer to arbitration and the OLRB had no jurisdiction to proceed. Once a matter is abandoned, it no longer exists as a grievance

Further, the Court found that subsection 48(16) of the OLRA provided jurisdiction to extend the time to file a grievance, but not for the referral of that grievance to arbitration, as the grievance and arbitration procedures provided in a CA are separate and distinct.

The arbitrator had relied on the 2004 Ontario Superior Court of Justice, Divisional Court decision James Bay General Hospital v. Public Service Alliance of Canada, where subsection 48(16) had been used to extend the time to refer a grievance to arbitration. However, the Court noted that the grievance and arbitration provisions in that collective agreement were inextricably intertwined because referral to arbitration was specifically included as a step in the grievance procedure. Also, the union had missed the deadline by four days due to a counting error, and the union had clearly expressed to the employer its intention to refer the grievance to arbitration.

The Court went on to note that even if subsection 48(16) applied, the Vice-Chair had failed to consider whether there were reasonable grounds for extension. The Court decided there were no reasonable grounds in this case.

The Court went on to consider the alternative reasoning that section 133 of the OLRA gave the Vice-Chair jurisdiction to extend the time limit. The Court reviewed the reasons for the expedited proceedings in the construction industry and found that the reason grievances go directly to the OLRB is to quicken the pace of resolution in construction matters. The interpretation of s. 133 by the Vice-Chair was contrary to the purpose of the section.

Further, precedent on section 133 allows the arbitrator to shorten time limits in a collective agreement, but not to extend them. The Court found that the OLRB could shorten timelines outlined in the collective agreement to accommodate the need for speed in construction disputes. However, timelines for referral could only be extended where they form part of the grievance process, as discussed above. Section 133 could not be used to override the collective agreement to lengthen time limits, as this could create a two-tiered system and uncertainty for all parties.

The court concluded the Vice-Chair did not have jurisdiction to hear the grievance, and his decision was quashed.

Ontario Court of Appeal Decision

The Union appealed, and in its 2012 decision, the Ontario Court of Appeal found that the language used by the Divisional Court was sometimes inappropriate in performing a reasonableness analysis. However, while the Court of Appeal did not embrace all of the Divisional Court’s analysis, the Court of Appeal agreed with the ultimate conclusion that the jurisdiction decision of the vice-chair was unreasonable.

The Court of Appeal found that the OLRB has broad discretion to accept or refuse a grievance for referral, but it cannot accept a grievance if there is no grievance. Because the grievance was deemed abandoned, there was no live grievance at the time of the Vice-Chair’s decision. There was nothing ambiguous about the contractual language, and the grievance was referred well beyond the 14 day limit.

The Court held that reading section 133 in context, a grievance is required in order for any action to be taken under that section. If there is no grievance, the section cannot be engaged. The position of the Vice-Chair, which amounted to reviving the grievance after it was deemed abandoned, would give the OLRB the right to ignore the express terms of the collective agreement.

Further, subsection 133(9) expressly incorporates subsection 48(16). This provision permits the arbitrator to extend the time in any step in a grievance procedure, as opposed to in an arbitration procedure.

The Vice-Chair’s decision was unreasonable because he concluded he had the authority to refer a grievance to arbitration when there was, in fact, no grievance. This interpretation would render the mandatory timelines outlined in the collective agreement inconsequential.

What Does this Mean?

Traditionally, for construction unions, referral deadlines have not been set in stone, and parties have allowed grievances to be referred beyond the deadlines set out in the collective agreement. While an arbitrator has the authority in some circumstances to extend the time limits in the collective agreement in respect of the grievance procedure pursuant to subsection 48(16), no such authority exists in respect of the arbitration procedure.

This case concerned a construction union, but could have consequences outside the construction world. Unions should be mindful of the grievance and grievance referral timelines, as extensions may not be given as easily as in the past. While there may be a way around the hard deadline if you can argue that the referral is actually a step in the grievance process – thereby allowing the extension of the timeline under subsection 48(16) – this will depend on the wording of the specific collective agreement.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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