2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

More documents

Recommendations

Info

- 4 -prospective remedies. In particular, in light of the grievances and the nature of the dispute theEmployer shall seek an Order by way of a preliminary motion that the GSB does not have thejurisdiction to consider the issue of prospective remedies such as how the transcript function is tobe delivered in the province of Ontario.”[7] In the alternative, in the event that the Board did not accept that position, the Employerindicated that it would argue that it should be permitted to begin the process of implementationof the changes it proposed.[8] In the Union’s response to the Employer’s particulars, the Union asserted in regard to thejurisdictional issue that “it will vehemently oppose the Employer’s motion. The GSB hasdetermined that there has been a breach of the Collective Agreement. The GSB has thejurisdiction to remedy the wrong committed by the Employer which, in the Union’s submission,includes the jurisdiction to order a prospective remedy in the context of this case.”[9] In terms of the Employer’s alternative argument, it asserted that the GSB had “alreadymade a determination with respect to the Employer’s desire to unilaterally impose a remedy withrespect to this matter in a decision dates July 17 th 2009” and that the Employer “was, in essence,seeking reconsideration of the GSB’s decision, which is absolutely inappropriate.”[10] Full argument was heard on the Employer’s preliminary objection in regard tojurisdiction on November 10, 2009.
- 5 -1. Did the July 17, 2009 Decision Already Decide this Issue?[11] The Union asserts that the Board, in the July 17, 2009 decision, made a determinationthat the Employer may not implement its plan and that the Employer should not be allowed, atthis juncture, to reargue that issue. It contends that the GSB has no power to reconsider itsdeterminations, citing Re Canadian Broadcasting Corporation and Joyce et al. (1997) 34O.R.(3d) 493 (Ont. Div. Ct.); Re OPSEU (Ross Grievance) and Ontario (Ministry of MunicipalAffairs and Housing) [2009] O.G.S.B.A. No. 54 (Gray); Re OPSEU (Transition Grievance) andOntario (Ministry of Community Safety and Correctional Services)[2005] O.G.S.B.A. No. 56(Briggs). It contends that the principle of issue estoppel applies, and that the Board’s earlierdecision must be respected and adhered to. Re Ontario Liquor Board Employees’ Union andOntario (Liquor Control Board of Ontario) [2002] O.G.S.B.A. No. 10 (Mikus); Re City ofToronto and CUPE, Local 79 [2003] S.C.J. No. 64 (S.C.C.). The Union submits that there isnothing different about the situation now than there was in July, and that the Employer is raisingthe same question – whether the Employer may implement its response to the Hunt decisionunilaterally.[12] The Employer asserts that the issue is not the same. The Employer submits that the scopeof the Board’s jurisdiction has never been determined and that there is, therefore, no issueestoppel to apply. The Employer, it submits, has fully adhered to the Board’s determination notto implement its plan until the matter could be addressed by the Board. It submits that thismotion is the first step in addressing the matter before the Board.
Page 6: - 6 -[13] I conclude that the July
Page 10 and 11: - 10 -[22] What this means - as req
Page 12 and 13: - 12 -the Divisional Court of Ontar
Page 14 and 15: - 14 -[32] Following Re Courtney, t
Page 16 and 17: - 16 -The Employer’s plan raises
Page 18 and 19: - 18 -[43] Similarly in Re Western
Page 20 and 21: - 20 -Employer’s proposal which,
Page 22 and 23: - 22 -appears, as the Union asserts
Page 24: - 24 -[57] Accordingly, for the rea

2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

Create successful ePaper yourself

Delete template?

Save as template?