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—

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.).