Grievance Settlement Board?Jurisdictional, Procedural, and Remedial Issues
| Author | Timothy Hadwen - David Strang - Leonard Marvy - Don Eady |
| Profession | Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP |
| Pages | 524-571 |
Grievance Settlement Board—
Jurisdiional, Procedural, and
Remedial Issues
A. STATUTORY AUTHOR ITY AND JURISDICT ION
e Crown Employees Collective Bargaining Act (CECBA) provides that all dier-
ences arising from a col lective agreement “relating to Crown employees” wi ll be
arbitrated by the Grieva nce Settlement Board (GSB). is has at least two eects.
First, the juris diction of the GSB is conned to dealing wit h grievances concern-
ing a specic group of employees. at group is thos e employees who fall under
CECBA (the scope of which is di scussed in Chapter , Sect ion B. Application of
CECBA). Secondly, it ensures that the aected part ies have no right to compel
each other to use private arbitr ators for the initial adjudication of such dierence s.
Consistent with this second consequence, the Act renders inapplicable the provi-
sions in the Labour Relations Act (LR A), which would otherwise impose a deemed
private rights arbitration clau se and ministerial appoi ntment of rights arbitra-
tors. e parties, u nder CECBA, cannot choose expedited Ministry of Labour-
appointed arbitration, as CECBA, section , makes LRA, sect ion , inapplicable.
Similarly, the LR A provision permitting colle ctive bargaining pa rties to agree to
private mediat ion/arbitration is modied by the CECBA, se ction , which requires
that the mediator-arbitrator be a v ice-chair of the GSB appointed and schedu led
by the chair of the GSB. e GSB’s exclusive jurisdic tion makes it responsible for
providing expedit ious 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].
Chapter : Grieva nce Settlement Board
) Whether Civil Actions Should be Dealt with at the GSB
In keeping with t he general case law governing labour tribu nals, the GSB’s ju-
risdiction has been found to i nclude the subject matter of some civil claim s. 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 a rgument by noting that the GSB had
not traditionally awa rded damages. e Ontario Cour t of Appeal granted the
defendant’s motion to dismiss the action, noti ng the non-bargaining identit y of
the alleged w rongdoer was not sucient reason to take the matter out of “t he
regime of exclusive arbitrat ion which is central to Canad ian labour legislat ion”
and which is exemplied by se ction () 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 g rant a broad range of remedies, indiv iduals need
not access the courts to ga in the appropriate relief.
is same broad view of arbit ral jurisdict ion 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 contra ry. Where the employer sued an employee for dam-
ages alleged ly caused by the employee using his civ il service position to favour
third part ies, the court refused to defer to the jur isdiction of the GSB. e court
was satised that t he essential character of the d ispute did not arise from the
interpretat ion, application, ad ministrat ion or violation of the col lective agree-
ment, and therefore retained jur isdiction. is case was decided aer t he Court
of Appeal decision i n Giorno v. Pappas, but is not consistent with it and makes
no reference to it.
) Recognized Expertise
e legislative histor y of CECBA indicates that there has long been a n assumed
need for a separ ate tribunal spe cializing i n the resolution of dispute s concerning
Crown employees. e benets of accumulat ing expertise ha s 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
See Weber 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 Ontar io courts. In Profes-
sional Association of Compensation Employees v. Ontario (Workers Compensa-
tion Board) the Divisional Cou rt dismissed a n application for judicial rev iew
of the GSB’s interpretation of a collective ag reement and held that the Board, a
permanent tribuna l, with “exclusive jurisdiction” to determi ne grievances sub-
mitted by parties to t he collective agreements governed by CECBA,” has “over-
arching responsibilit ies in the eld of union-government labour relations.” As
it was interpreting a col lective agreement and its constituent stat ute, the appro-
priate standard of review for such matters was patent unreasonableness.is ap-
proach of curial deference to GSB decisions ha s 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 hig hly specialized e xpertise of
the GSB was relied on as one of the fac tors indicating that the s tandard of re-
view was rea sonableness. In the context of an injunction proceeding in which
a party was se eking to have the courts ta ke jurisdiction over a collect ive agree-
ment right, the Divisiona l Court armed 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 a mply demonstrated that the GSB “has t he expertise
and has been able fairly a nd competently to address issues comparable to thos e
in dispute.”
Indeed, the histor y of the Divisional Cour t’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.).
To continue reading
Request your trial