I N THE MATTER OF AN ARBITRATION

BETWEEN

SENECA COLLEGE OF APPL I ED ARTS AND TECHNOLOGY

( "the Co l lege" )

AND

ONTARIO PUBL IC SERVICE EMPLOYEES UN ION

("the Un ion" )

GRI EVANCE OF HARVIA GRAY

GRIEVANCE NUMBER 2007-0560-0004

BOARD OF ARB ITRATION

M iche l G . P iche r - Chai r

John Podmore - Co l lege Nom i nee

She rri l Mu rray - Un ion Nom inee

APPEARANCES FOR THE

Wi l l iam LemayBush ra Rehman

Jane Wi lson

Kavita Chh iba

Arthu r Bu rke

Fran Manson

cOLLEGE :- Counse l

- Co-Cou nse l

- Act ing D i rector D ivers ity Centre

- D i recto r, H uman Resou rces Serv ices

- D i rector , Counse l l i ng , Lea rn ing Centres , D isab i l i ty & Hea l thServ ices

- H uman Resources Partner

APPEARANCES FOR THE UN ION :

Ed Holmes - Counse l

Rob i n Gordon - OPSEU , Grievance Officer

Lau rence O l ive - Vice-Pres ident , Loca l 560

The hearing i n th is matte r was he ld i n Markham on May 27 , 2009 .

AWARD

Th is a rb it rat ion concerns a g r ievance aga i nst the d ischa rge of a probat iona ry

emp loyee . The g rievor, Ms . Ha rvia Gray , ma in ta ins , among othe r th ings , that there was

an e lement of d iscrim inat ion aga i n st he r contrary to the Ontario Human Rights Code in

the dec is ion not to cont i n ue her employment . The U n ion now wishes to withd raw the

g rievance , a step wh ich is objected to by the Col lege i n a d ispute wh ich ra ises e lements

of fi rst imp ress io n as re late to the i nvo lvement of a new adm in istrat ive t r i b una l . The

Col lege subm its that i n the c i rcumstances the g rievance shou ld be d ism issed .

A brief review of the h istory of th is g rievance is i n order. H i red by the Co l lege as

a counse l lo r in December of 2006 , Ms . G ray was advised on October 1 6 , 2 007 that her

employment was be i ng te rm i nated before the exp iry of her p robation pe r iod . He r

g r ievance , dated October 3 1 , 2007 , a l leges d ism issa l w ithout j ust cause and in bad

fa i th . The g rievor a lso fi led an app l icat io n unde r sect io n 34 of the Ontario Human

Rights Code seek ing re l ief from the Human Rights Tribuna l of Onta rio fo r a l leged

d iscrim inat ion i n he r d ischa rge based on race , co lou r, sex and reprisa l o r th reats of

rep risa l . By a decis ion dated January 22 , 2009 , the Human Rights Trib una l of Ontario

deferred the g rievor's compla int before that Trib una l pend i ng the conc lus ion of th is

a rb itration , havi ng been adv ised that we decl i ned to adjou rn ou r p roceed i ngs . That

dec is io n states , i n part :

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I n most cases , the Trib una l wi l l g rant defe r ra l where the factsand issues ra ised i n an app l icat ion are part of an ongo i ngg rievance process unde r a co l lective ag reement : Cray v.Rouge Valley Health System, 2008 HRTO 1 20 ; Aubin v.Waterloo (Regional Municipality) , 2008 HRTO 2 1 4 . The re isno reason to depart from th is approach in th is case .

On the g r ievor's beha lf at the fi rst hea ri ng of th is matte r, on November 1 8 , 2008 ,

the Un ion sought to have th is matter adjou rned pend i ng the outcome of Ms. G ray 's

compla i nt before the Human Rights Tribuna l . For reasons extens ive ly re lated in an

Award dated Decembe r 1 9 , 2008 , the majori ty of the Board decl i ned to adjou rn the

g rievance and the hearing was schedu led to resume on May 27 , 2009 .

By letter dated May 25 , 2009 , the Un ion not ified the Boa rd that the g rievance

was withd rawn . As represented d u ring a conference ca l l h ea ri ng he ld on May 26 , 2009 ,

the Col lege took the pos it io n that the hea ring shou ld be convened to dea l with i ts mot ion

that the g rievance be d ismissed i n l ig ht of the withd rawa l . I n a brief decis ion dated May

26 , 2009 , the majority d i rected , " . . . that the heari ng is to resume on May 27 , 2009 to

cons ider a nd ru le upon the respect ive pos it ions of the parties in l ig ht of the mot io n of the

Col lege to d ism iss the g rievance . " I n the resu l t , the parties made fu l l subm iss ions to the

Boa rd with respect to the U n ion 's not if ication of withd rawa l of the g rievance and the

Col lege's req uest that , i n the ci rcumstances , the g r ievance shou ld be d ism issed .

I n support of the Col lege 's pos i t ion counse l for the Col lege subm its that the

h istory of th is g rievance demonstrates what he cha racte rizes as forum shopp i ng and an

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abuse of p rocess on the part of the g riever, with the support of the Un ion . Counse l

notes that the case itse lf i nvo lves some deg ree of comp lex i ty and that it was o rig i na l ly

schedu led for two days of hea ring , be i ng May 26 and 27 , 2009 . I n ant ic i pat ion of the

hea ri ng the Col lege expended cons iderab le time and financia l resou rces i n p reparat io n

for the arb it ration , as a resu lt of wh ich the s imp le withd rawal of the g rievance without

any adj ud icated resu lt wou ld be p rejud icia l to the Co l lege .

Counse l for the Col lege subm i ts that a board of a rb i trat ion has res id ua l

j u r isd iction to contro l the p rocess i n re lat ion to any g rievance before it , but it i s duty

bound to contro l th at p rocess so as to prevent any abuse and that , i n any event , the

withd rawal of the g rievance is a matte r i n the d iscret ion of the Board of Arb it ration . He

subm i ts that that d iscretion shou ld not be exe rcised in favou r of withd rawa l where to

a l low the withd rawal wou ld be to countenance an abuse of process . Counse l subm its

that the Ru les of C iv i l P rocedu re , wh ich he i nvokes by ana logy, amply support the

Col lege 's approach .

At the outset counse l for the Col lege po ints to the prov is ions of the Colleges

Collective Bargaining Act, and i n particu lar section 1 4 ( 1 ) wh ich contemplates that a l l

d ifferences between an emp loyer and an employee organ ization aris i ng from the

adm in ist rat io n of the co l lect ive ag reement are to be subject to fi na l a nd b i nd i ng

sett lement by arb i t rat ion . He refers the Boa rd to the dec is ion of the board of arb it rat io n

in Re: Surrey Memorial Hospital and Hospital Employees ' Union , (2005) 1 4 ! L .A. C .

(4th) 278 (C . Tay lor, Q . C . ) , I n that award the Board found that the g rievor was d ishonest

with both he r un ion and the boa rd of a rb it ration and that to a l low her req uest to withd raw

the g rievance was tantamount to an abuse of p rocess . On that bas is her g rievance was

d ism issed . I n arrivi ng at that conclus ion the fo l lowing cons iderat ions appea r at pp 28 1

284 :

[ 1 2 ] I n Re School District No. 75 'Mission) andB. C. T. F. , [2003] B . C .C .A .A .A. No . 339 (QL0 , 75 C . L .A . S .1 23 (Taylor) , it states , at pa ra . 1 0 :

As a genera l ru le , an app l icat ion to withd raw ag rievance shou ld not be subject to terms andcond it ions . The co rrect approach whe re theapp l ication to withd raw is made before thehea ring commences is to pe rm it the withd rawa land leave its s ign ificance to any futu re tr ibuna lto determ ine .

[ 1 3] Here , the genera l ru le does not app ly . TheGrievo r has engaged i n d is reputab le conduct i n tent iona l lydes ig ned to m is lead the boa rd .

[ 1 4 ] An except ion to the "genera l ru le" is noted byBrown and Beatty , Canadian Labour Arbitration , 3rd ed . Atpa ra : 2 : 3233 :

. . . th e preva i l ing view is that , subject to thewi thd rawal amounting to an abuse of process ,a party can un i late ra l ly withd raw a g rievancep rior to a hearing , but it cannot do so on a"without p rej ud ice" bas is .

[ 1 5 ] Referri ng to that statement , Arb it rator Ch r ist ie i nRe Atlantic Pilotage Authority and Canadian MerchantService Guild (2004) , 1 30 L .A . C . (4th) 204 , at p . 8 (QL) [p .2 1 2 L .A . C . ] , sa id :

The statement from Brown and Beattyrecogn izes that there may be cases where , toavo id abuse of process and the l i ke , the un ion ,even though i t is the pa rty bring i ng the

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g rievance to arb i t rat ion , may not be a l lowed towithd raw it .

[ 1 6] The U n io n re l ied on Re British Columbia FerryCorp. and B. C. F.M. W. U. (Lawlor) (2002) , 1 1 1 LA. C . (4th)393 (McEwen) , i n wh ich the un ion was pe rmitted to withd rawa g rievance d u ri ng the course of the a rb it ration withoutcosts . The arb itrator, however, was ca refu l to po int out thatthe re was no abuse of the arb it rat ion process [pp . 400 , 402] :

. . . i t makes no i nd ust ria l re lat ions sense - - in

the absence of ev idence that the party b r i ng i ngthe app l icat ion has somehow abused thea rb it ra t ion process - - to p roceed with anadversa ria l proceed ing ove r a compla i nt thathas been withd rawn (page 6 QL) . . . I t i s up tothe party that began the p rocess to dec idewhen and why to end the process , subject ofcou rse to ensu ring that the re is no abuse of thep rocess itse lf (p . 7 ) . . . G iven . . . the absence i nth is case of abuse of the arb it rat ion p rocess . . .I am sat isfied that the Un ion 's app l icat ion towithd raw a g rievance shou ld be g ranted . (p . 7)

[ 1 7] I n Re School District No. 75 (Mission) andB. C. T. F. , [2005] B . C . C .A .A .A . No . 94 (QL) , 8 1 C . L .A .S . 80(Bu rke) , re l ied upon by the Un ion , the a rb it rator rejected theemp loyer's subm iss ion that two prior withd rawa ls acted as aba r to the th i rd g rievance be i ng hea rd . At p . 1 9 (QL) ,Arb it rator Bu rke "d id not fi nd an abuse of p rocess . . . o rs ig n i f ica nt p rej ud ice to the Employer . "

[ 1 8] Those cases a l l make an except ion for "abuse ofp rocess , "

[2 7] I n Re National-Standard Co. of Canada Ltd. AndC.A . W. Loc. 19 1 7 ( 1 994) , 39 L .A . C . (4th) 228 (Pa lmer) , ad ischa rge g rievance was d ism issed when the g rievo r fa i ledto comply with an order for the productio n of tape ofconversat ions . The employer moved for d ism issa l of theg rievance for abuse of the a rb it rat ion process .

[28] Beg i n n i ng at p . 5 (QL) [pp . 234-35 L .A.C . ] ,Arb i trato r Pa lmer d iscussed the issue of j u risd ict ion :

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The fi rst issue to be determ i ned in th is matter,

then , is whether arb i t rato rs , act ing pursuant tothe powers ent rusted under the Ontario Labou rRelations Act , have the power to d ism iss ag r ievance on the bas is requested by thecompany . I be l ieve t hey do . F i rst , there canbe no d ispute but that a rb it rators can orde r thep rod uct ion of documents . . . The gene ra lissue , then is what one can do if a party fa i ls tocomply with such o rders . I n my opin ion , aswas dec ided i n the Thompson Prod ucts case ,the most reasonab le app roach is to adopt theproced u re of the courts . Th is is cons istent withthe ph i losophy of the Ontario Labour RelationsActs expressed i n s .45(8 . 1 ) , para . 5 , where itstates a rb itrators have the power :

5 . To make such orders or g ivesuch d i rect ions i n p roceed i ngs ashe , she o r i t cons iders

app ropriate to exped ite thep roceed i ngs or to prevent theabuse of the arb it rat ion p rocess .

I t i s a lso cons istent with the o ld adage of the courts ibijus, ibi remedium: whe re there is a rig ht , the re is aremedy . Accord ing ly , if the a rb it rator cannot find anadequate remedy to dea l with these s ituat ions , theparties a re forced back on the recou rse to the courts .Th is , in my view, resu lts i n an "abuse of the arb it rat ionprocess" . I t i s t ime-consum ing and expens ive . I t i su n reasonab le to set up a system wh ich is to sett leg rievances i n a re lat ive ly exped it io us and i nexpens ivemanne r and then not g ive i t the power to dea l w i thsuch p rocedu ra l matters .

Counse l st resses that i n the case at hand the g rievor in it ia l ly soug ht to have the

arb i trat io n proceed i ngs adjou rned , a nd was unsuccessfu l in that effort . He subm i ts that

to accede to the withd rawal of the g rievance , on extremely short not ice before the

hearin g , wou ld be to countenance fo rum shopp i ng by the g rievor who , as appears from

her i n it ia l pos it ion , prefers to have the matter dea lt with before the Human Rights

Tr i b u na l .

Counse l a lso re l ies on the decis ion of the Cha i r of th is Boa rd i n Re Great Atlantic

& Pacific Co. of Canada Ltd. and Retail, Wholesale & Department Store Union, Local

4 1 4 , ( 1 99 1 ) 22 L .A . C . (4th) 72 (M . G . P icher) . I n that case , after two comp lete days of

hea ri ng the Un ion sought to withd raw its g rievance , aga inst the oppos it ion of the

Employer , wh ich sought to have the hea ring continued . At pp 79-80 the Arb it rato r ru led

as fo l lows :

Hav i ng reviewed the subm iss ions of the parties , andi n l ig ht of fu rther d iscuss ions with both counse l by te lephone ,the arb it rator is satisf ied that the board does not have

j u risd ict ion to d i rect the cont in uat ion of the arb it rat ion i n theface of the dec is ion of the un ion to withd raw its g rievances .As wi th any party l i t igant , a un ion prog ress i ng a g rievance ata rb it ra t ion reta i ns the rig ht to abandon o r withd raw itsg rievance at any time . I t may do so , howeve r , s ubject to theg rievance be ing accord i ng ly d ism issed by the arb i t rator. Asboth parties must we l l app rec iate , the d ism issa l of agrievance is not without consequence to the parties .Spec ifica l ly , i t is tantamount to an adj ud ication on the me ritsof the a l legat ions made i n the g rievance , and an a rb it ra lfi nd ing that they a re not estab l ished and a re wi thout meri t .

As regards the in stant g rievances , therefore , theun ion 's withd rawal of the g rievance , and i ts resu l t ingd ism issa l by the a rb i trator is tantamount to an adj ud icatedfi nd ing that the th ree a l legations made by the un ion i n itsg rievance a re not estab l ished . That is to say , i t has fa i led toestab l is h that the g r ievor was d iscr im inated aga inst byreason of h is u n io n office , i t has fa i led to estab l ish that he

was d iscrim i nated aga i nst by reasons of h is age and , last ly ,it has fa i led to estab l is h that the prod uct ivity standa rdsemp loyed by the company a re not appropr iate as they mayre late to the age of emp loyees , or anoma l ies i n thestanda rds , i nc l u d ing in cons istenc ies in the t ime a l lowed for

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ident ica l jobs . Al l of these a l legations must be found to havebeen d ism issed upon the i r me ri ts .

Reference is a lso made by counse l for the Col lege to Re Cipa Lumber Company

L td. and United Steelworkers of America, Local 1 -3567, (2005) 1 40 L .A . C . (4th) 86

(K i nz ie) . I n that case , at p 92 , the operat ive p ri nc ip les we re descri bed as fo l lows :

I accept the propos it ion that a party may un i latera l lywithd raw a g r ievance if that step is taken p r io r to thecommencement of the heari ng . See Re Health LabourRelations Assoc. of British Columbia (Grace Hospital) andH.E. U. , Loc. 1 80 (1 985) , 20 L .A .C . (3d) 247 (Kel leher) .

I n th is case , the Un ion 's pu rported withd rawa l of itsgrievance occu rred after fou r days of hea ri ng had been he ld .Hav i ng cons idered the authorit ies referred to i n my March 3 ,2005 lette r to Ms . G regory , I am of the view that absent theconsent of the other party, a party's des i re to withd raw itsg rievance from further cons ideration by the a rb itrat io n boa rdappo i n ted to hear and dete rm i ne i t i n c i rcumstances such asthese is subject to the d iscret ion of that arb i trat ion boa rd .Depend ing on the c i rcumstance of each case , the arb itrat io nboa rd may al low or d isa l low the app l icat ion with or withoutcond i t ions . See Re Scott Maritimes Ltd. and C.E.P. , Loc.440, supra [52 L .A .C . (4th) 3 1 6 (Ven iot) ] , a nd Re BritishColumbia Ferry Corp. and B. C. F. M. W. U. (Lawlor), supra 1 1 1L .A . C . (4th) 393 (McEwen)] .

Not ing that the case had consumed fou r days of hea ri ng t ime , Arb itrator Kinzie cited the

award i n Great A tlantic & Pacific Company of Canada Ltd. and d ism issed the g rievance .

Refe rence is a lso made to Re Canadian Red Cross Blood Transfusion Service

and Ontario Nurses ' Association , ( 1 98 1 ) 30 L .A . C . (2d) 23 (Sh ime) . Wh i le cou nse l

acknowledges that the dec is ion i n that awa rd has had some fo l lowi ng , hav ing a l lowed

the g rievance to be withd rawn , he subm i ts that the dec is io n of Mr . Sh ime does not dea l

with the issue of abuse of process , a n e lement wh ich was ra ised in a number of

subsequent cases wh ich were dea lt wi th d ifferent ly. He a lso questions Arb it rator

Sh ime's ana lys is of the Ru les of Civ i l Procedure wh ich he d iscussed by ana logy , a nd

d ist ingu is hes the suggestion that a boa rd of a rb itrat ion shou ld not compel p roceed i ngs

to go ahead at least as re lates to the specific facts of the instant case whe re , i n any

event , a hearing wi l l i n a l l l i ke l ihood p roceed before the Human Rights Tribuna l .

The fi na l arb it rat ion awa rd cited by counse l for the Co l lege is Canroof Corp. v.

Teamsters Local 230, ( 1 997) 67 L .A .C . (4th) 28 (Waisg lass) . Counse l notes that

a lthough Arb it rator Waisg lass a l lowed the g rievance in that case to be withd rawn , the

record ind icates no fi nd i ng of abuse of process on the pa rt of the pa rty seeki ng to

withd raw, a fact wh ich he ma i nta i ns d istingu ishes the case wh ich is before us .

Add i t iona l ly , counse l referred the Board to certain ana logous p rovis ions of the Ru les of

C ivi l Procedu re concern i ng the d iscontin uance of an act ion and the dec is ions of the

courts in Squire v. Hogan, [200 1 ] O . J . No . 3988 (Ontar io Superior Court of Just ice) and

Simanic v. Ross , [2004] 7 1 O . R . (3d) 1 6 1 (Onta rio Superior Court of J ust ice) .

Counse l for the Un ion makes a forcefu l argument aga i nst d ism issa l . As h is

p rinc ipa l theme he subm i ts that we shou ld not impose consequences on the g rievor ,

someth i ng wh ich shou ld be the ro le of another t rib una l , such as the H uman R ights

Tribuna l , s hou ld the matte r p roceed there . As a fi rst pos i t io n he subm i ts that we are i n

fact wi thout j u risd ict ion to d ism iss a g rievance wh ich the U n ion has un i late ra l ly

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withd rawn . I n the a lternat ive , shou ld we have such j u risd ict ion , counse l subm its that

th is is not a case i n which to exercise it , as i n fact the re is no abuse of p rocess .

I n fram i ng the issue , counse l fo r the U n ion stresses that we a re to some deg ree

faced in the i nstant case with an issue of fi rst impress ion . He notes that the comp la i n t

f i led by the g rievor wi th the Human Rights Appea l Trib u na l of Ontar io is be i ng advanced

unde r new leg is lat ion and a new comp la i nt p rocess whereby matters a re no longer

hand led th rough a Human Rig hts Comm iss ion but p roceed d i rect ly to the Trib una l for

cons iderat io n . The app roach wh ich the Tri buna l may take in the face of the wi thd rawal

of a pa ra l le l g r ievance at arb it ra tion is sti l l i n the deve lopment stages . That , counse l

a rgues , s hou ld p rompt us to move caut ious ly and i n fu l l sens it ivity to the g rievor's rig hts .

With respect to the issue of abuse of p rocess , counse l for the Un ion stresses that

as a fi rst step , as recorded above , the U n ion sought an adjou rnment of the a rb it rat ion

p roceed i ngs , a request wh ich th is Board den ied . It i s on ly fo l lowing ou r ru l ing that the

g rievor made the dec is ion to withd raw he r g rievance . Counse l stresses that i t i s open to

the Col lege to a rgue before the Human Rights Tribuna l that it s hou ld not hea r the case

based on the withd rawal of th is g rievance , s hou ld it choose to do so, in the event that

the g rievo r shou ld decide to p roceed befo re the H uman Rights Trib una l . Counse l a lso

suggests that even if we shou ld d ism iss th is g rievance the g rievor wou ld st i l l reta in the

ab i l i ty to p roceed , i n a ny event , before the Human Rights Tri b una l . I t i s , he subm its ,

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pu re specu lat ion as to what the Tr i buna l m ight do in the face of any objection by the

Col lege .

With respect to the ju risp rudence reviewed above , counse l st resses that a l l of the

cases in wh ich a board of a rb itrat ion dec ided to d ism iss a g rievance in the face of a

withd rawa l i nvo lved find i ngs of abuse of p rocess by reason of the fact , i n part , that in

each of those cases the arb it ration board had a l ready commenced i ts hea r i ng and

heard evidence . That , counse l st resses , i s not the case in th is g rievance . As an

a lte rnative subm iss ion counse l urges that shou ld we decide to d ism iss the g rievance ,

th at we express ly say that the d ism issa l is " not on the merits" , as was made exp ress ly

c lear by the boa rd of arb it rat ion wh ich d ism issed the g rievance i n the Surrey Memorial

Hospital case . We shou ld not , counse l u rges , set up the cond it ions for a poss ib le

a rgument of res judicata to be made before a subsequent trib una l .

No r does counse l for the U n ion accept that there is any genu i ne p rej ud ice to the

Co l lege in the face of the wi thd rawa l of the grievance . F i rst ly , he emphas izes that the

withd rawa l of g rievances is an eve ryday event . Wh i le the U n ion m ight have p refe rred a

longer period of not ice , it was on ly adv ised on the eve of the hearing of the g rievor's

wish to withd raw. I t i s not u ncommon for short not ice withdrawa ls to occu r in

a rb it ra tions gene ra l ly , notwithstand i ng that pa rt ies may have expended time and money

i n prepa r i ng fo r the i r case . He stresses that that does not , i n the gene ra l cou rse , j u stify

a boa rd of a rb it rat ion effect ive ly forc i ng a matter on for hea ri ng unde r a th reat of

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d ism issa l . Counse l a lso d raws to the Boa rd 's attent ion that the issues in the arb i t rat ion

a re v i rtua l ly ident ica l to the issues to be dea lt with before the Human Rights Tr ib una l .

Shou ld the g rievo r p roceed before that Tribuna l the Col lege's preparat ion for th is case

wi l l obv io us ly be effect ive ly the same prepa rat ion as fo r i ts appea rance before the

Human Rights Tri buna l . There is , in that c i rcumstance , no c lea r loss or waste of

preparatio n effort.

The U n ion d iffers substant ia l ly with the Col lege as to the gove rn i ng p r i ncip les

wh ich emerge from the reported cases . I ts counse l submi ts that the cases genera l ly

stand for the propos i t ion that it is open to an emp loyee g riev ing to withd raw h is or he r

g rievance , o r for the U n ion to withd raw i ts g r ievance , as the case may be . Some of the

cases confi rm that a party can withd raw without prej ud ice wh i le othe rs seem to i nd icate

that a withd rawal is s imp ly a withd rawa l , with any consequences as to the withd rawa l to

be dete rm ined by any futu re t r i buna l wh ich may be faced with the same issue . As noted

above , the on ly cases where withd rawal has been den ied and a d ism issa l has been

subst itu ted by a board of a rb itrat ion a re those invo lv i ng a c learly demonstrated abuse of

p rocess , an except ion to the genera l ru le . I n the case at hand , g iven the nove lty of the

H uman Rig hts Tribuna l 's p roced u res and the new compla i nt reg ime unde r wh ich it

ope rates , th is Board of Arb itrat io n shou ld not , counse l subm i ts , make any dete rm inat io n

wh ich m ight l im it the ab i l i ty of the Human Rights Trib una l to u lt imate ly make such

dec is ion as i t deems appropria te . Counse l mai nta i n s that if we s imp ly a l low the

withd rawal and effective ly acknowledge that the g rievor reta i ns a l l of her r ig hts in tact ,

then the tab le is set fo r the H uman Rights Trib una l to determ i ne whether her comp l a in t

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before it shou ld be d ism issed , assumi ng that s ubm iss ion is made by the Col lege . To do

othe rwise , and to d ism iss th is g rievance , wou ld , the U n ion a rgues , effect ive ly be

prej ud icia l to the g riever .

Counse l fo r the U n ion re l ies heav i ly on the dec is ion of the boa rd of a rb it rat ion in

Re Canadian Red Cross Blood Transfusion Service . I n that case the majority of a

boa rd cha i red by Arb itrator Owen B . Sh ime decl i ned to compe l the pa rt ies to proceed

with a hear i ng i n the face of the U n ion 's un i late ra l w i thd rawal of the g r ievance . At pp

27-28 the majority reasoned , i n part, as fo l lows :

I n ou r view the more serious issue is not one of

j u risd iction but what the boa rd shou ld do once to ld that theassoc iat ion does not wish to proceed with the grievance .We note that th is is not one of those cases where the un ion

and an i nd iv id ua l employee a re at odds about whethe r top roceed . Whi le the board of arb i trat ion has j u risd iction tohear and dete rm i ne the issues , it does not , i n ou r v iew, have

the authori ty to compel the assoc iat ion to ca l l wi tnesses andto proceed wi th the hearing . The assoc iat io n is the pa rtythat decided to i n it ia te the p roceed ings and has no less arig ht to d iscontin ue the matte r now as it d id du r i ng theg rievance procedu re . By ana logy , a p la i nt iff i n the ord i na ryCou rts may at any t ime , s ubject to costs (wh ich is not afactor here s i nce costs are statutori ly determ ined) ,d isconti n ue an act ion and we see no reason why a grievo rshou ld be p roh i b ited from so do i ng . The g riever orig inatedthe proceed ings and had carriage of them to th is po i nt - a l la lo ng the g rievor has had the cho ice whether to conti n ue ornot and we see no reason why that cho ice shou ld beproscr i bed at th is state of the proceed i ngs .

The emp loyer has suggested the poss i b i l i ty that aun ion cou ld ha rass an emp loye r with g rievances , a l thoug h itdoes adm it w i th some candou r that the re is no reason to

suggest that there is abuse i n th is case . I f there isha rassment i t shou ld be suppo rted by evidence : ReGoverning Council of University of Toronto, supra , at p . 434 .

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And , if ha rassment is demonstrated , there may be anapp ropriate remedy . However , the re is no suggest ion ofha rassment i n th is case and the refore no reason to dec ide

th is case on that g round .The emp loyer a lso suggests that iss ues were ra ised

by the associat ion wh ich it wishes to reso lve . We see noreason why , if the issue was so impo rtant , the employe rcou ld not have fi led a g rievance to dea l wi th the matterrather than awa i t the un io n 's g rievance . What if the un ionhad decided to abandon the g rievance i n the g rievancep rocedu re - where would that have left the employe r?Clea r ly , if th is issue was so crucia l to the emp loyer i t m ig hthave had the matter reso lved by fi l i ng i ts own g rievance .Also , shou ld the employer now decide to proceed with thematte r, the associat io n wou ld be ha rd put to object to a delayi n p roceed ing , where the employe r was ab le to demonstratethat the assoc ia t ion 's g rievance and the issues ra ised by itwou ld have determ ined those matte rs that the emp loyer fe ltwere important and that de lay a rose because the emp loyerfe l t the matter wou ld be reso lved i n th is arb itrat ion .

Also , it i s ou r v iew that as a matter of labou r re lations

po l icy we oug ht not to prope l the parties i n to a proceed ing ofan adversa ria l natu re u n less there is a more substantia l

reasons advanced . The arb it rat ion of th is case on the meri ts

may i nvo lve a hea r i ng where i nd iv idua ls a re exam i ned andcross-exam ined , where witnesses may contrad ict each otherand where re lat ionsh ips m ight be ha rmed rather than he lpedby p roceed ing i n that fash ion . A lso , we are concerned aboutthe expense to the part ies in proceed ing . I n the resu l t wewou ld requ i re g reate r reasons than have been exp ressed torequ i re that th is matter proceed on the meri ts .

And , fina l ly, as to the issues of estoppe l and resjudicata ra ised by the employe r, it i s ou r view that those arematters wh ich shou ld be reso lved by any subsequent boa rdof arb i trat ion if a nother g rievance is fi led . I t i s not l i ke ly thatthe princip le of res judicata wou ld app ly s i n ce there has notbeen a heari ng on the merits . A lso , a rev iew of the cases

i nd icates that those matters have been reso lved by boardsof a rb it ratio n whe re a second g rievance is fi led and , in ou rview, that ought to rema i n the p ract ice : see , e .g. , TriangleConduit & Cable Canada (1968) Ltd. , supra. We hasten toadd that the assoc iat ion has adm itted that wh i le i ts letter

withd raws the g rievance "without prejud ice" i t can notun i late ra l ly i nvoke that doctr i n e .

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I t may be noted that i n the Canadian Red Cross Blood Transfusion Service case the

un ion 's not ice of withd rawa l preceded the commencement of the hea ri ng , j ust as

occu rred in the case at hand . That case obvious ly d id not , as th is case , invo lve the

apparent wish of a grievor to proceed before a specia l ized adm in istrat ive trib una l for

reso lution of the same issues .

Counse l for the Un ion p laces a numbe r of cases befo re us wh ich he subm its

support the genera l princ i p le aga inst d ism issa l be i ng a rg ued by the U n ion , i n add it ion to

the Canadian Red Cross Blood Transfusion Service , Surrey Memorial Hospital and

Canroof Corp. awards a l ready cited by the Co l lege : Re Health Labour Relations

Association of British Columbia (Grace Hospital) and Hospital Employees' Union, Local

180 , ( 1 985) 20 L .A.C . (3d ) 247 (Ke l leher) ; Re Bilt Rite Upholstering Co. Ltd. and United

Steelworkers, Local 32 U.D. , ( 1 990) 9 L .A .C . (4th) 36 1 (Barrett) ; Re Reliacare Inc. and

Service Employees Union, Loc. 2 1 0, Re, ( 1 99 1 ) 20 L .A . C . (4th) 1 70 (D issanayake) ; Re

Bumaby (City) v. Canadian Union of Public Employees, (2000) 9 1 L .A .C . (4th) 40

(Sanderson) ; Canadian Niagara Hotels Inc. v. Union of Needletrades, Industrial and

Textile Employees, Local 1 6506, [2006] O . L .A .A . No . 78 1 (Hetz) ; Re Algonquin College

v. Ontario Public Service Employees Union, Local 4 1 5, [2008] O . L .A .A . No . 440 (Knopf) .

I n rep ly , counse l for the Co l lege ins ists that the facts of the i nstant case do

const i tute an abuse of p rocess . He notes that the g r ievo r unsuccessfu l ly requested an

adjou rnment i n Decembe r of 2008 and that the reafte r the Human Rights Tri buna l of

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Onta rio made the dec is ion to defe r to arb it rat io n . He a lso notes that correspondence

from her persona l lawye r c ites the Un ion as be ing a pa rty to the Human Rights

comp la int , wh ich is not correct . I n the subm iss ion of counse l for the Col lege , i t i s at the

very least i ncumbent upon the g rievor and the U n ion to p rovide an exp lanat ion as to the

g rievor's dec is ion to d iscont i n ue before th is Boa rd of Arb it ration , a matter upon which no

ev idence or exp la nat ion has been forthcom ing . He subm i ts that the facts so described

do support a conc l us ion of an abuse of p rocess by the g rievor. He a lso re i terates the

pos it ion of the Col lege that it is prej ud iced by reason of the de lay i ncu rred and the loss

of t ime and money in prepa rat ion for the a rb it rat ion hea r i ng .

We tu rn to cons ider the me rits of th is d ispute . At the outset we cons ider i t

important to note the fundamenta l d ist i nct ion between those awards wh ich have

resu lted in a d ism issa l when a party seeks to withd raw, and those where the board of

arb itratio n s imply a l lows the withd rawal w ithout any cond it ion o r conseq uence .

As both parties acknowledge , abuse of p rocess , howeve r that concept may be

exp ressed , appea rs to be the operat iona l factor i n those awa rds wh ich opt for d ism issa l .

I n virtua l ly a l l of the cases rev iewed a d ism issa l has been ordered i n the face of a

request to withd raw whe re the withd rawal comes at some poi nt we l l i nto the

p resentation of the arb it ra t ion case . An underly i ng sent iment of boa rds of arb it ra tio n i n

that c i rcumstance appears to be that a party cannot s imply withd raw in the face of what

m ight poss ib ly appear to be the eme rgence of a weak or doubtfu l case , part icu la rly

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where the oppos ite party has expended t ime and effo rt i n the p resentation of its case .

Whi le each case depends on its particu lar facts , when that occurs some boards of

a rb it rat ion have been i nc l i ned to conclude that the effect ive abandonment of the

g rievance i n m id-hea ring justifies its d ism issa l on the mer i ts . From a pol icy standpo int ,

at a m in imum that approach wou ld tend to d iscou rage a party from in i t iating a "tr ia l "

g rievance to see how it m ig ht fare , pu l l i ng back the g rievance if the hea r i ng does not

appear to be prog ress ing i n a pos it ive way .

A very d ifferent approach predom i nates among a rb it rators where the heari ng has

not yet commenced and the g riev ing party seeks to s imply withd raw i ts g rievance .

Counse l for the Co l lege has c ited to th is Boa rd no prior award wh ich has d ism issed a

g rievance in that ci rcumstance . I ndeed , the p reponderant ju risprudence appea rs to be

c lea r, if not un iform , in confi rm ing that d ism issa l is not app rop riate i n that c i rcumstance .

i n ou r view the genera l ru le was we l l summarized i n the award of Arb i trator

Sande rson i n the Burnaby (City) case where , at pa ra . 1 1 the fo l lowi ng comment

appears :

As I see it , when an app l icat ion to withd raw theg rievance from arb it rat ion is made to an arb it rator , suchapp l icat ion wi l l i nvar iab ly be g ranted , if it i s made before thehea r i ng has begun or at an ea rly stage in the proceed i ngs .Such a resu l t is cons istent with sound labou r re lat ions

po l ic ies and common sense . A decis ion to abandon

adj ud icat ive p roceed ings , fo r whatever reasons , at th is po in t ,wi l l a lmost a lways be honou red and respected by arb itrators .At the othe r extreme, if the hearings have been completed ,

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the arb i t rat ion boa rd has become engaged in de l iberat ionsand an app l icat ion to withd raw is then made , d ifferentcons ide rations may arise , s uch as prej ud ice to the pa rties ,as wel l as a poss ib le cla im of abuse of the arb itrat ionp rocess . I n between a re a range of poss ib le factors to bewe ighed by a rb it rato rs i n dec id ing how to exerc ise the i rd iscret iona ry authority . I n my v iew, when an app l icat ion towithd raw is made , part icu la rly before the proceed ings areconc lu ded , the re is a s ign i f icant bu rden on the oppos i ngparty to conv i nce an arb i t rator why that app l icat ion shou ldnot be g ranted , if on ly because arb itrators shou ld becaut ious about i n trud ing i n to the tact ica l dec is io n-mak ing ofthe pa rt ies to an arb i trat ion matter. I a lso ag ree witha rb it rator Ven iot that if an app l icat ion to withd raw is g ranted ,as a genera l ru le , the withd rawa l shou ld not be subject tote rms or cond it ions . If the un ion is perm itted to withd raw ag rievance from arb it rat ion on the bas is that there is nocompe l l i ng reason for an a rb it rator to refuse the app l icat ion ,it must accept the consequences of that withd rawa l inrecogn it ion of the a rb itra l rea l ity that a rguments can be madeto another t r i buna l at anothe r t ime as to the effect of the

withd rawal .

Gene ra l ly boards of arb it ra tion do not attach cond i t ions , fo r examp le whether a

withd rawa l is or is not "w i thout prej ud ice" , leav i ng for any subsequent t rib una l eventua l ly

se ized of the same issue the dec is ion as to the consequences of a withd rawal . That

was exp ressed by Arb it rator D issanayake in the Reliacare Inc. awa rd i n the fo l lowi ng

terms at para . 28 :

To summarize my d ispos it ion of th is matte r, the un ionis ent i t led to withd raw the g rievance and take the pos it ionthat the wi thd rawal was wi thout prej ud ice . I t i s on reco rdthat the emp loyer does not ag ree that the wi thd rawa l waswithout p rej ud ice . I f the issue comes up du ri ng a futu reproceed ing , it wi l l be up to that board of arb itrat ion todeterm i ne whether the un ion was ent it led to wi thd raw th is

g rievance without prej ud ice and if so what that means i n theparticu lar c i rcumstances of the matte r befo re it .

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A recent awa rd by Arb i trator Knopf in Algonquin College gives s im i lar gu idance

as concerns the withd rawa l of a g rievance unde r the very co l lect ive ag reement wh ich

governs ou r p roceed i ngs . I n that case the un io n withd rew its g rievance the n ig ht before

the a rb itrat ion , very much as occu rred in the instant case . The Col lege sought an o rder

for costs wh ich was den ied by Arb it rator Knopf. The Col lege a lso refused to consent to

the withd rawa l be ing on a "without prej ud ice" bas is . I n th at rega rd Arb it rator Knopf

wrote as fo l lows :

. . .Wh i le a party fi l i ng a g rievance can a lways withd raw it ,that party cannot insu la te itse lf from the consequences ofthat withd rawa l s imp ly by asse rt ing that the withd rawal is"without p rej ud ice . " If the othe r pa rty ag rees to those terms ,then the cond it io n comes i n to p lay . But absent suchconsent , the withd rawal w i l l not be cons ide red as be ing"without prej ud ice . " As a resu lt , the othe r party cou ld makesubm iss ions to a subsequent t r ibuna l regard ing the effect ofthe withd rawal . Th is was recogn ized in Bumaby (City) andC. U. P. E. , supra, at p . 46 ;

. . . a party that wi thd raws the g rievance fromarb it rat ion shou ld not attempt to i nsu late i tse lffrom the potentia l consequences , of thedec is ion it h as made by seek i ng to pe rsuadean arb itrator to impose terms such as "withoutprej ud ice of precedent" , u n less there ared ifferent c i rcumstances than those i n th is case .

The employer shou ld not be den ied itsopportun ity, i f it is so i nc l i ned , to makesubm iss ions to another t rib una l rega rd i ng theeffect of the withd rawal from a rb i t ration on the

de l iberat ions of that tribuna l . I t wi l l be up tothat t r ib una l to decide the issue put to i t withoutrega rd to terms of cond it ions i n the a rb i t rat ionawa rd .

I t i s important to note from th is passage that i t i s notup to the arb itrator who was schedu led to hear thewi thd rawn g rievance to decide the consequence of theun i la te ra l w ithd rawa l . That wi l l be dec ided by the nextarb i trator dea l ing with the issues ra ised i n the orig i na l

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g rievance , if and when the withd rawa l becomes re levant .Therefore , a l l that can be sa id at th is po in t by th is arb it ra to r,i s that the p r i nc ip les and autho rit ies cited by the Emp loyera re we l l accepted , rat iona l a nd worthy of cons iderat io n i n theparties ' futu re dea l i ngs with each othe r.

How, then , do the forego ing prin c ip les app ly to the case at hand? I n app roach ing

that question we be l ieve that there is an add i t iona l e lement of cons ide rab le importance

i n the i nstant case wh ich must be ca refu l ly cons ide red . The d ispute before us does not

s imp ly concern a genera l withd rawa l of a g rievance aga inst the poss ib i l i ty of some

futu re d ispute befo re another boa rd of arb itration i n respect of a s im i la r g rievance

concern i ng the same issues . To the extent that the bad fa ith a l leged before us is

i ntertwined with the a l legat ion of d iscrim i nat ion , what we have before us is a pa ra l le l

compla i n t p resently fi led before a p rov i nc ia l h uman rig hts t rib una l , now operat ing u nder

new leg is lation and new p rocedu res . As a c i t izen of the prov i nce the g rievor is

possessed of an ind iv id ua l statu tory right to fi le her comp la i nt to the Human Rights

Tri b una l of Ontario , wh ich she has done . A lthough her reasons have not been

exp la i ned , it appears c lear that she wishes to have he r compla int hea rd by that Tr i b una l ,

to the po i nt of withd rawing her g rievance before th is Boa rd of Arb it ration . S ig n if icant ly ,

she does so before the commencement of the arb it rat ion hearing . On what bas is

shou ld we vis it a ny adve rse consequence upon her fo r her hav ing chosen to pu rsue an

avenue of red ress wh ich is her sta tu to ry r ig ht?

As both counse l acknowledge , there can be no ce rta i n ty as to what , if any ,

we ig ht w i l l be g iven by the H uman Rights Trib una l of Ontario to the fact that a g rievance

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and arb i t ration p rocess was ava i la b le to the g rievor unde r the co l lect ive ag reement and

she u lt imate ly chose not to pursue it for the pu rposes of seek ing red ress . I t wou ld , with

respect , be presumptuous of th is Board to specu late as to what conc l us io n m ight be

d rawn by the H uman Rights Trib una l . We cons ide r it best for that spec ia l ized body to

make such determ i nation as it deems app rop riate without any comment or cond i t ion

from th is Board . That, mo reove r, is in keep ing with what we view as the p redom i nant

a rb !tra l j u risprudence reviewed above .

Nor are we profound ly impressed with the argument of prej ud ice made by the

Col lege i n the instant case . As counse l for the Un ion notes , the wi th d rawa l of

g rievances on the eve of a rb itrat io n is a common occu rrence wh ich genera l ly does not

prompt a request for an orde r of d ism issa l . The concern i n the i nstant case has to be

that the Col lege's request fo r an order of d ism issa l from th is Boa rd , whether or not by

i n tentio n , is tact ica l ly weig hted to enhance its u lt imate pos it io n before the Human R ights

Tribuna l . Even absent s uch an i ntention , weaken i ng the g rievo r's case before the

Tri b una l m ight wel l be the consequence of g rant i n g the o rder of d ism issa l wh ich the

Col lege seeks . We cannot ig no re the fact that that consequence m ight effect ive ly

p rej ud ice the g rievor , beari ng i n m ind that we have hea rd abso l u te ly no ev idence With

respect to the merits of he r case . On the othe r hand , the Co l lege reta i ns the fu l lest

ab i l i ty to argue the effect of the withd rawal from arb it ration when it does fi nd itse lf before

the Human R ights Tr i buna l .

2 1

I n the resu lt , we can see no respons ib le bas is upon wh ich to d ism iss the

g rievance , as req uested by the Col lege . I n keep i ng with the wel l estab l is hed

j u risp rudence , we deem i t mo re app rop r iate to s imp ly a l low the withd rawal of the

g rievance , mak i ng no comment as to whether o r not it i s on a "without p rei ud ice" bas is ,

a nd a l lowing the Human Rights Trib una l of Onta rio to hea r such subm iss ions and d raw

such conclus ions as it deems app rop riate i n respect of the consequences , if any , of th is

withd rawal .

For a l l of the forego ing reasons , the Col lege 's request for a d ism issa l of the

g r ievance is den ied .

Dated at Ottawa th is 24th day of Ju ly , 2009 .

M iche l G . P icher , Cha i r

"She rr i l Mu rray"

She rri l Murray , U n ion Nom inee

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D ISSENT

With reSpect I cannot ag ree with the Majo rity i n s imp ly a l lowi ng the withd rawal of th isg r ievance g iven a l l of the ci rcumstances .

The action was a b latant abuse of the g rievance and a rb it rat ion p rocess and , as made

abundant ly c lear by the Col lege counse l , i t was very t ime consumi ng and a cost lyprocess for what was no more than an exerc ise of "forum shopp i ng " by the g rievor .

The Majority's dec is ion a lso fa i ls to add ress the fact that the g rievance and a rb it rat ion

process is des ig ned to encou rage the efficie nt , effect ive and t imely reso lu t ion of

d isputes . Pa rt of the abuse of p rocess in th is case is that the g rievor's conduct isent i re ly contrary to th is p rinci p le .

I wou ld have d ism issed the g rievance .

"John Podmore"

Joh n Podmore

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