In an earlier blog, we discussed a decision by Ontario’s Divisional Court in Greater Essex County District School Board v. United Association of Journeymen, in which the court ruled that the OLRB could not exercise its authority under section 133 to extend or ignore the time mandated in a collective agreement for referring a grievance to arbitration. Essentially, if the grievance was deemed abandoned in a collective agreement there was no grievance to refer to arbitration and so the OLRB could not take jurisdiction over a dead grievance.
The union (UA) appealed the Divisional Court’s ruling to Ontario’s top court. The Ontario Court of Appeal unanimously upheld the Divisional Court’s decision. In particular, the court found as follows:
[66] In my view, therefore, the Vice-Chair’s interpretation falls outside the range of acceptable outcomes, because he concluded that he had the authority to refer to arbitration and to decide a grievance when there was in fact no grievance. His interpretation pays little or no heed to, trivializes, and renders inconsequential the mandatory timelines agreed upon by the parties to the Collective Agreement.
[67] The Labour Board has no inherent jurisdiction. Expert as it may be in the understanding and application of its empowering statute, it possesses only the powers delegated to it by its statute, and by the collective agreement. Thus, when the Labour Board sits as arbitrator under s. 133 it must respect, not ignore, the language of the collective agreement. Section 133 cannot reasonably be interpreted to mean that the OLRB may in its own unfettered discretion revive a dead grievance by extending the parties’ agreed-upon time limits for referral to arbitration.
Notably, the Universal Workers Union Local 183 Labourers’ International Union of North America intervened in the appeal and supported the UA’s positions.
Provincial collective agreements in the construction industry expire for all trades on April 30, 2013. This issue may find its way into bargaining rounds come.
