In a recent decision, the Ontario Divisional Court held that the Ontario Labour Relations Board (the “Board”) cannot extend the time limits for the referral of a grievance to arbitration.
In Greater Essex County District School Board v. United Association, the Collective Agreement between the parties contained a time limit for the referral of a grievance to arbitration, which read as follows:
“…[the grievance] may proceed directly to arbitration under the provisions set out in Article 18, within fourteen (14) regular working days from the date the grievance arose, but not later…
Any grievance submitted by…the Union…that has not been carried through Article 17 – Grievance Procedure Clauses and in accordance with the time limits specified, or mutually agreed to, will be deemed to have been settled satisfactorily by the parties of the grievance.”
In 2004, the Union filed a grievance regarding construction work that was being done by non-unionized workers at two schools. The Union referred the grievance to arbitration four months after the 14-day time limit had expired, without any explanation for the delay.
As a result of intervening decisions that affected the parties in 2006 and following, the School Board was declared to be the employer of the workers. Thus, five years after the grievance was filed, the Board found that the Collective Agreement time limits could be extended and that the grievance was therefore arbitrable. The Board finally concluded that the School Board had in fact breached the Collective Agreement six years after the grievance was filed.
On judicial review, the Court found that the grievance was inarbitrable as a result of the time limit in the Collective Agreement. The Court explained that the words in the Collective Agreement must be given their plain meaning, and the intention of the parties in this case was to establish mandatory time limits. The Collective Agreement specified clear consequences in the event that time limits were not met. On the basis of this Collective Agreement language, the Court found that the grievance no longer existed, and was deemed to have been settled.
Significantly, the Court further explained that section 48(16) of the Labour Relations Act, 1995 cannot be applied to extend the time limits for referring a grievance to arbitration, as it applies only to the filing of a grievance, and not to the referral of a grievance to arbitration.
The Court in this case therefore determined that the Board’s decision was unreasonable, and the Board’s decision was quashed.
This decision provides Ontario employers with certainty that, if a grievance is not referred to arbitration in a timely manner, the Board will not be permitted to hear the grievance, so long as the relevant collective agreement time limits are of a mandatory nature, as they were in this case.