Grievance Settlement Board: Jurisdiction, Administration, Procedure, and Remedies

• Author: Timothy Hadwen/David Strang
• Pages: 687-765

687

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Grievance Settlement Board:

Jurisdiction, Administration,

Procedure, and Remedies

The Crown Employees Collective Bargaining Act, 1993 (CECBA) pro-

vides that all dierences arising from a collective agreement covering

Crown employees will be arbitrated by the Grievance Settlement Board

(GSB).1 This makes the GSB responsible for providing expeditious dis-

pute resolution, through mediation and arbitration, of a large volume

of grievances between the Ontario government and designated Crown

agencies, and their unions.

The GSB has a unique tribunal structure centred on the agreement

of these institutional parties about governance, administration, and

adjudicative composition. The board has developed a distinct set of

expedited arbitration procedures, and approaches to disclosure, par-

ticulars, non- suits, and interim relief.

The CECBA does impose specif‌ic restrictions on the GSB’s remedial

authority when dealing with criminal convictions after a f‌inding of either

unnecessary force or sexual assault and with classif‌ication disputes.

A. JURISDICTION

The GSB’s jurisdiction over all dierences arising from a collective agree-

ment covering Crown employees has at least three eects. First, the

jurisdiction of the GSB is conf‌ined to dealing with grievances concerning

1 SO 1993, c 38 as amended [CECBA], s 7(1)–(3). The GSB website is

www.psab.gov.on.ca.

688 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

a specif‌ic group of employees consisting of the direct employees of gov-

ernment and of designated Crown agencies.2 Second, individual union-

ized employees must resolve their disputes with the employer through

the GSB, or tribunals with overlapping jurisdiction. The courts gener-

ally lack jurisdiction. Third, the Crown and trade unions cannot use pri-

vate arbitrators for the adjudication of their dierences, because the Act

renders inapplicable the provisions in the Labour Relations Act, 1995

(LRA), which would otherwise impose a deemed private rights arbitra-

tion clause and ministerial appointment of rights arbitrators.3

Within these parameters, the GSB’s jurisdiction is broad. It is “a

creature of statute” empowered to deal with grievances under expired

contracts,4 although time limits for the f‌iling of grievances may still

apply to limit retroactivity.5 The board has rejected the argument that

it has no jurisdiction over an alleged breach of minutes of settlement.

The minutes themselves came within the def‌inition of a collective agree-

ment, in that the document set out an agreement in writing between

the employer and an employee organization, and covered terms and

conditions of employment.6 Accordingly, the GSB determined that the

CECBA deemed the memorandum to contain a provision for resolu-

tion of dierences by the board and took jurisdiction over a breach

of the memorandum of settlement even when the settlement did not

expressly confer jurisdiction. Even if parties intend to exclude the griev-

ance procedure from any minutes of settlement, their intentions cannot

2 The scope of that group of employees and employers is discussed in Chapter 7.

3 CECBA, above note 1, s 7(2) makes the Labour Relations Act, 1995, SO 1995,

c 1, Sch A [LRA], s 48(1)–(6) inapplicable. The potential use of private mediators

is discussed below.

4 Re OPSEU and The Queen in the Right of Ontario (1985), 51 OR (2d) 474

(Div Ct) at 9–10 [OPSEU and Ontario, 1985], overturning OPSEU (Clerk Six

General) and Management Board of Cabinet, GSB#564/82, 4 September 1984

(Weatherill) in which the GSB had determined that it did not have jurisdiction over

grievances f‌iled in respect of expired collective agreements. See OPSEU (North-

cott/Ostman) and Ministry of Natural Resources, GSB#734/94, 13 October 1995

(Dissanayake).

5 Following OPSEU and Ontario, 1985, above note 4, the extent of retroactivity

was dealt with in OPSEU (Clerk Six General) and Management Board of Cab-

inet, GSB#564/82, 8 September 1992 (Kennedy).

6 Ontario Public Service Employees Union and Civil Service Commission,

GSB#33/80, 28 July 1980 (Chair Weatherill) at 6. See also OPSEU (Pietrobon)

and Ministry of Health, GSB#2257/95, 4 April 1997 (Mikus) at 7–8.

Grievance Settlement Board: Jurisdiction, Administration, Procedure, and Remedies | 689

supersede the Act. The CECBA,7 combined with collective agreement

just cause protection, gives the GSB jurisdiction to review the release of

a probationary employee, even in the face of a more specif‌ic provision

in the collective agreement that explicitly denied probationers the right

to grieve their dismissal or release.8

) Recognized Expertise

As a specialized tribunal, the GSB has “the added advantage” of con-

tinuously dealing with the same parties and the same collective agree-

ments, with the result that there is “a highly developed understanding

of the parties, the issues and the jurisprudence.”9 On this basis the GSB

has taken jurisdiction over disputes between bargaining agents about

representation of employees10 that could also have been addressed by

the Ontario Labour Relations Board (OLRB). The CECBA also gives

the GSB authority over any claim for illegal strike damages.11

In deferring to the GSB, the Divisional Court has noted the exper-

tise that the tribunal exercises in the course of fulf‌illing its “over-arching

responsibilities in the f‌ield of union-government labour relations.”12

Curial deference has been shown to the board’s f‌indings of fact13 and

its remedial orders.14 The same deference was paid to its interpretation

of an employment-related statute, which is a task that “lies at the core

of the work of labour arbitrators.”15 In the context of an injunction

7 CECBA, above note 1, s 7(3).

8 Ontario Public Service Employees Union (Niyonkuru) v Ontario (Ministry of

Transportation), 2013 CanLII 88092 (ON GSB) (Devins) at paras 27–28 and the

cases cited therein. For discussion of probationary release, see Chapter 3.

9 OPSEU (Union) and Management Board Secretariat, GSB#2003–2386, 17Janu-

ary 2005 (Briggs) at 8, where the GSB rejected a motion asserting that the famili-

arity might bias the decision.

10 See Ontario Public Service Employees Union (Union) v Ontario (Revenue), 2008

CanLII 70536 (ON GSB) (Herlich) at para 30, discussed in Chapter 7 re exclusions.

11 CECBA, above note 1, s 17 as discussed in Chapter 8.

12 Professional Association of Compensation Employees v Ontario (Workers Com-

pensation Board), [1997] OJ No 4115 (Div Ct) at para 41.

13 OPSEU v Ontario Ministry of Correctional Services, [1986] OJ No 292 (Div Ct).

14 See OPSEU (Union) and Ministry of Community, Family and Children’s Services,

GSB#447/00, 19 July 2004 (Leighton), upheld on judicial review, Ontario (Min-

istry of Community and Social Services) v Ontario (Grievance Settlement Board),

2005 CanLII 4848 (ON SCDC).

15 OPSEU v Ontario et al, 2012 ONSC 2348 at para 24.