On October 7, 2011, the Ontario Divisional Court released its decision on Greater Essex County District School Board. This decisionoverturned the Ontario Labour Relations Board (the “Board”) on the issue of whether the Board can extend the time limits for referring a grievance to arbitration in the Construction Industry. Depending on the circumstances, this decision may be of significance for employers in the construction industry that are bound to certain union agreements.
The facts of the case are fairly simple. The Plumbers Union referred a grievance to arbitration four months after the 14-day time limit mandated by the collective agreement. As a Construction Industry grievance, the matter was referred to the Board. The grievance was then adjourned for five years while other related proceedings were completed. When the grievance was finally adjudicated, the employer argued that the grievance should be dismissed because the grievance was untimely.
The Board dismissed the objection and found that it had the jurisdiction to extend the time limits for the grievance referral. The employer applied to the Divisional Court for judicial review of the Board’s decision. The Court overturned the Board’s decision for the following reasons:
First, after reviewing the plain language of the agreement the Court held that the time limits were mandatory, since the failure to specify a consequence does not result in an otherwise mandatory clause becoming directive. This is a significant finding for the many construction employers bound to the Union’s collective agreement.
Second, the Court found that the arbitration and grievance processes were not so intertwined that the Board could extend the time limits. Also, even if the arbitration and grievance processes were intertwined, there were no persuasive reasons to warrant the exercise of discretion in this case as the employer would be significantly prejudiced by the delays.
Finally, the Court found that the Board did not have an unfettered “superpower” to accept grievances that had not been filed in accordance with the time limits, as this interpretation would defeat the intent of the legislation in resolving construction industry grievances in a timely manner. As a result, the Court held that the Board did not have the jurisdiction to hear the grievance and quashed the decision.
As a practical matter, this decision of the Court highlights the importance of a timely referral to arbitration of construction industry grievances: a failure to follow time limits for referring such grievances to arbitration may result in a finding that the Board lacks jurisdiction to hear the grievance on its merits.
If you have any questions about the implications of this decision or other questions relating to the referral of Construction Industry grievances to arbitration by the Board, please do not hesitate to contact a Mathews Dinsdale lawyer.
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