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Ontario Court of Appeal Confirms Ontario Labour Relations Board Must Respect Language of Collective Agreement When Determining Jurisdiction
Thursday, June 15, 2017 at 2:04:37 PM

FILION.ON.CA/ONTARIO - Court of Appeal Confirms Ontario Labour Relations Board Must Respect Language of Collective Agreement.

Greater Essex County District School Board and United Association of the Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, 2012 ONCA 482[i]

In a recent decision, the Ontario Court of Appeal determined that the Ontario Labour Relations Board (the “OLRB”) cannot ignore the express terms of a collective agreement dealing with grievances and arbitration, including applicable timelines.

The grievance at issue began in July 2004 and involved an allegation that the employer school board had hired certain construction workers not covered by the Collective Agreement to do work within its schools. The union relied upon s. 133 of the Ontario Labour Relations Act (the “Act”), which allows a party to a collective agreement in the construction sector to refer a grievance to the OLRB for final and binding arbitration. However, the grievance was not referred to the OLRB until December 2004, more than four months beyond the 14-day time limit for referral of a matter to arbitration under the Collection Agreement. While the Collective Agreement provided for the extension of the timelines by mutual agreement of the parties, this had not occurred.

The OLRB Vice-Chair accepted the union’s submissions that the grievance referral mechanism in s. 133 of the Act constituted an entirely separate procedure from that of the normal grievance procedure within a collective agreement. Accordingly, the Vice-Chair held that the 14-day time limit within the Collective Agreement was directory only, and not mandatory. The Vice-Chair then concluded that he had the discretion to extend the timeline for the referral of the grievance to arbitration before the OLRB. He decided to exercise that discretion and hear the grievance. The Vice-Chair then decided the grievance in favour of the union.

The employer applied to the Ontario Divisional Court for a judicial review of, among other things, the Vice-Chair’s jurisdictional ruling. The Court concluded that the timelines within the Collective Agreement were mandatory, and took special note of the language of Articles 17.3 and 18.5 of the collective agreement between the parties. Article 17.3 provided:

any grievance … that has not been carried through Article 17-Grievance Procedure Clauses and in accordance with the time limits specified, or mutually agreed to, will be deemed to have been settled satisfactorily by the parties to the grievance.

The Divisional Court found that once this clause had been engaged, it effectively brought the grievance to a conclusion, leaving nothing to be referred to the OLRB. As a result, the Divisional Court reversed the Vice-Chair’s ruling. The union appealed this decision to the Ontario Court of Appeal.

Before the Court of Appeal, the union relied heavily on the language of s. 133 (1) of the Act, which provides that a grievance under a collective agreement may be referred to the OLRB “despite the grievance arbitration provisions in a collective agreement”. The Court of Appeal rejected this argument, stating that it agreed without reservation with the Divisional Court’s conclusion that the Vice-Chair’s jurisdiction decision was unreasonable and could not stand.

The Court emphasized that s. 133 (1) of the Act exists to provide a useful forum for the prompt resolution of construction industry grievances, provided that there is, in fact, a grievance to arbitrate. The Court of Appeal cited past decisions of the OLRB, which held that where a collective agreement clearly provides that a grievance that is not processed in a timely fashion is deemed to be abandoned, the grievance effectively ceases to exist and is not therefore capable of referral to arbitration. The Court found that the Vice-Chair declined to follow this line of authority, and instead “invested the Labour Board with the wide open discretion to ignore or override the collective agreement”. The Court continued at paragraph 58:

Thus, according to the Vice-Chair, the Labour Board has the authority to deal with any matters it likes, including past grievances deemed to have been settled under the collective agreement.

The Court found this departure from established OLRB jurisprudence was unreasonable, and concluded that there was no live grievance that could be referred to the OLRB under s. 133, pursuant to the terms of the Collective Agreement.

The decision of the Ontario Court of Appeal clearly establishes that s. 133 of the Act may not be used to disregard the established and agreed upon time limits contained within a Collective Agreement. Employers involved in the construction industry should take note and continue to follow the grievance referral time lines established within the applicable Collective Agreements.

When employers lose on a jurisdictional issue, they may be tempted to apply for judicial review immediately, prior to a decision on the merits. This decision reminds employers that frequently the better course is to wait for a final decision, and if it is unfavourable, to have all issues reviewed at the same time.

For further information, please contact Chris Sinal at 519-435-6006 or your regular lawyer at the firm.

Christopher A. Sinal
October 2012