Grievance Settlement Board?Jurisdictional, Procedural, and Remedial Issues

AuthorTimothy Hadwen - David Strang - Leonard Marvy - Don Eady
ProfessionDirector, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
Pages524-571
 
Grievance Settlement Board
Jurisdiional, Procedural, and
Remedial Issues
A.STATUTORY AUTHOR ITY AND JURISDICT ION
e Crown Employees Collective Bargaining Act (CECBA) provides that all dier-
ences arising from a collective agreement “relating to Crown employees” will be
arbitrated by the Grieva nce Settlement Board (GSB). is has at least two eects.
First, the juris diction of the GSB is conned to dealing wit h grievances concern-
ing a specic group of employees. at group is those employees who fall under
CECBA (the scope of which is discussed in Chapter , Section B. Application of
CECBA). Secondly, it ensures that the aected parties have no right to compel
each other to use private arbitr ators for the initial adjudication of such dierence s.
Consistent with this second consequence, the Act renders inapplicable the provi-
sions in the Labour Relations Act(LRA), which would otherwise impose a deemed
private rights arbitration clause and ministerial appointment of rights arbitra-
tors. e parties, under CECBA, cannot choose expedited Ministry of Labour-
appointed arbitration, as CECBA, section , makes LRA, sect ion , inapplicable.
Similarly, the LRA provision permitting collective bargaining pa rties to agree to
private mediat ion/arbitration is modied by the CECBA, se ction , which requires
that the mediator-arbitrator be a vice-chair of the GSB appointed and scheduled
by the chair of the GSB. e GSB’s exclusive jurisdic tion makes it responsible for
providing expeditious dispute resolution and meditation/arbitration to the par-
ties. is is a cha llenge that the GSB has met in the ways disc ussed below.
S.O. , c.  as amended, s . ()–() [CECBA].
CECBA, s. () makes Labour Relations Act, , R.S.O. , c. , s. ()–() inapplicable.

Chapter : Grieva nce Settlement Board
) Whether Civil Actions Should be Dealt with at the GSB
In keeping with the general case law governing labour tribunals, the GSB’s ju-
risdiction has been found to include the subject matter of some civil claims. In
Giorno v. Pappas,the plainti argued that the defendant, a fellow non-bargain-
ing unit employee, was not a part y to the collective agreement a nd so the plainti
was able to sue him. She supported her argument by noting that the GSB had
not traditionally awarded damages. e Ontario Court of Appeal granted the
defendant’s motion to dismiss the action, noti ng the non-bargaining identit y of
the alleged wrongdoer was not sucient reason to take the matter out of “the
regime of exclusive arbitration which is central to Canadian labour legislation”
and which is exemplied by section () of CECBA, where “such a regime is de-
signed to resolve workplace disputes ex peditiously and economically t hrough the
specialized expertise of labour arbitrators.” e Court of Appeal noted that as
the GSB has the authority to grant a broad range of remedies, individuals need
not access the courts to ga in the appropriate relief.
is same broad view of arbitral jurisdiction has been applied to a lawsuit
brought by the Crow n against an employee, for damage to gover nment property.
ere is a case to the contrary. Where the employer sued an employee for dam-
ages allegedly caused by the employee using his civil service position to favour
third part ies, the court refused to defer to the jur isdiction of the GSB. e court
was satised that the essential character of the dispute did not arise from the
interpretation, application, administration or violation of the collective agree-
ment, and therefore retained jur isdiction. is case was decided aer t he Court
of Appeal decision in Giorno v. Pappas, but is not consistent with it and makes
no reference to it.
)Recognized Expertise
e legislative history of CECBA indicates that there has long been an assumed
need for a separ ate tribunal spe cializing i n the resolution of dispute s concerning
Crown employees. e benets of accumulating expertise has been recognized
by the GSB itself, which has noted that it has “t he added advantage” of continu-
ously dealing w ith the same parties and t he same collective agreements, wit h the
result that there is “a highly developed understanding of the parties, the issues
SeeWeber v. Ontario Hydro, []  S.C.R. .
Giorno v. Pappas, (),  O.R. (d)  (C.A.), a’g [] O.J. No.  (Gen. Div.).
Ibid. at .
Ontario (Attorney General) v. Bowie (),  D.L.R. (th)  at – (Ont. Ct. Gen .
Div.).
Ontario Realty C orporation v. P. Gabriele and Sons , [] O.J.  at para.  (S.C.J.).
       
and the jurisprudence.” It may be that parties will disagree, even strongly dis-
agree with cer tain GSB decisions, but there is an acce ptance that the GSB has the
obligation to rule on contentious di sputes.
e expertise of t he GSB is acknowledged by the Ontario courts. In Profes-
sional Association of Compensation Employees v. Ontario (Workers Compensa-
tion Board) the Divisional Court dismissed an application for judicial review
of the GSB’s interpretation of a collective agreement and held that the Board, a
permanent tribunal, with “exclusive jurisdiction” to determine grievances sub-
mitted by parties to the collective agreements governed by CECBA,” has “over-
arching responsibilities in the eld of union-government labour relations.” As
it was interpreting a collective agreement and its constituent statute, the appro-
priate standard of review for such matters was patent unreasonableness.is ap-
proach of curial deference to GSB decisions has also been applied to the GSB’s
ndings of fact and its remed ial orders. In a decision upholding the authorit y
of the GSB to fashion an innovative remedy, the highly specialized expertise of
the GSB was relied on as one of the factors indicating that the standard of re-
view was reasonableness. In the context of an injunction proceeding in which
a party was seeking to have the courts take jurisdiction over a collective agree-
ment right, the Divisiona l Court armed the jurisd iction of the GSB. e court
noted several decisions of the GSB dea ling with similar contentious matters a nd
found that these decisions amply demonstrated that the GSB “has the expertise
and has been able fairly and competently to address issues comparable to those
in dispute.”
Indeed, the history of the Divisional Court’s treatment of GSB decisions
is characterized by a great degree of deference. It could be generalized that the
court has been most li kely to intervene when the GSB has failed to exercise its fu ll
OPSEU (Union) and Management Board Sec retariat, GSB-, Ja nuary , 
(Briggs) at , where the GSB rejec ted a motion brought on the basis of an a llegation that
the famil iarity might bias t he decision.
OPSEU and Ministry of Communit y and Social Service s, OPSLRT T//, August , 
(Chair Shime) at –.
 Professional As sociation of Compensation E mployees v. Ontario (Workers Compens ation
Board), [] O.J. No.  at para.  (Div. Ct.).
 OPSEU v. Ontario Ministry of C orrectional Serv ices, [] O.J. No.  (Div. Ct.).
See OPSEU (Larman) and Ministry of Communit y, Family and Children’s Services,
GSB/, May ,  (Abramsky) at , upheld by the Division al Court, Minis try of
Community, Family and Children’s Ser vices v. OPSEU, [] O.J. No.  (Div. Ct.), af-
rming the ne cessity for arbitrators to have broa d remedial power to uphold a grieva nce
where documents were de stroyed.
 OPSEU (Union) and Ministry of Community Fa mily and Children’s Services,
GSB/, July ,  (Leighton), upheld on judicia l review, Ontario (Ministry of
Community Family and Child ren’s Services) v. OPSEU,  CanLII  (Ont. Div. Ct.).
 Ontario Public S ervice Employees Union L ocal  v. Royal Ottawa Health Care Group,
[] O.J. No.  at para.  (Div. Ct.).

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT