Legacy Masonry Inc. and 1498593 Ontario Inc. v Bricklayers, 2019

OLRB Case No:  3749-18-G

Legacy Masonry Inc. and 1498593 Ontario Inc., Applicant v Bricklayers, Masons Independent Union of Canada, Local 1, Labourers’ International Union of North America, Local 183, and Masonry Council of Unions Toronto and Vicinity, Responding Parties v Masonry Contractors’ Association of Toronto, Inc., Intervenor

BEFORE:  Lee Shouldice, Vice-Chair

APPEARANCES:  Walter Thornton, Shawn Adkins and Filipe Morgado for the applicant; Stephen Krashinsky and Cesar Rodrigues for the responding parties; Jeffrey Murray and Joe DeCaria for the intervenor

DECISION OF THE BOARD:  April 8, 2019

  1.       Introduction

  1. 1.              This is a referral of a construction industry grievance to the Board pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (“the Act”).  This matter came on for hearing before me on March 27, 2019.

  1. 2.              At the outset of the hearing the parties argued a preliminary issue raised by the responding parties, namely the question of whether the Board should refuse to accept this referral pursuant to subsection 133(4) of the Act.  By decision dated April 2, 2019, I provided the parties with the following “bottom line” decision:

For reasons to follow shortly, the Board declines to refuse to accept this referral pursuant to subsection 133(4) of the Act.  This matter is referred to the Registrar, who is directed to consult with counsel for the purpose of scheduling one or more further hearing dates.

My reasons for reaching that decision are set out below.

  1.   Background

  1. 3.              The relevant facts for the purpose of arguing the preliminary issue are not in dispute.

  1. 4.              Legacy Masonry Inc. and 1498593 Ontario Inc. (collectively “Legacy”) are bound to the collective agreement between the responding parties (collectively “the union”) and the Masonry Contractors’ Association of Toronto, Inc. (“MCAT”) in effect from May 1, 2016 to April 30, 2019 (“the collective agreement”).

  1. 5.              On February 27, 2019, the union delivered a grievance to Legacy in which it alleges, amongst other things, that Legacy violated Articles 15.04 and 15.05 of the collective agreement because it failed to employ 30 or more hourly employees before it subcontracted bargaining unit work to third parties.  The grievance states that the violations of the collective agreement commenced in November, 2018.  Subsequently, the union formed the opinion that the violations of the collective agreement may have commenced in September, 2018.  On March 27, 2019, the union amended its grievance accordingly.

  1. 6.              On March 13, 2019, Legacy referred the grievance to the Board pursuant to section 133 of the Act.  On March 21, 2019, the union delivered a Request for Hearing and Notice of Intent to Defend/Participate to the other parties and filed it with the Board.  On that same date, the union referred the grievance, as amended, to arbitration in accordance with the Bricklaying Enforcement System (“the BES”) contained in the collective agreement.  There is a roster of six permanent arbitrators established by the BES.  The arbitrator to whom the grievance was referred was Jack Slaughter.  The grievance referral delivered by the union indicated that a hearing had been scheduled for April 4, 2019, at the union’s offices on Wilson Avenue in Toronto, Ontario, commencing at 10:00 am.

  1. 7.              Four days later, on March 25, 2019, the union filed a response to the grievance referral filed by Legacy with the Board.  That pleading (as well as its previously filed Request for Hearing and Notice of Intent to Defend/Participate) indicated that the union planned to raise as a preliminary matter the question of whether the Board ought to decline to hear the grievance pursuant to subsection 133(4) of the Act and defer to the board of arbitration established by the BES.  When the hearing in this proceeding commenced on March 27, 2019, I heard submissions from counsel on that question.

III.   Relevant Provisions of the Act

  1. 8.              The relevant provisions of the Act are subsections 133(1) and (4), which provide as follows:

(1)  Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 48, a party to a collective agreement between an employer or employers’ organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(4) The Board may refuse to accept a referral.

  1. Relevant Provisions of the Collective Agreement

  1. 9.              The relevant provisions of the collective agreement provide as follows:

Article 4 – Grievance Procedure

4.01         The parties to this Agreement are agreed that it is of the utmost importance to adjust complaints and grievances as quickly as possible.

4.08         The parties have provided for an Expedited Procedure to deal with issues which may arise under the terms of this Collective Agreement set out in Schedule “C” as the Bricklaying Enforcement System.  It is agreed that where any matter is properly dealt with under the Bricklaying Enforcement System and there is a conflict between the terms of this Article and/or Article 5 and the procedures set out in the Bricklaying Enforcement System, the terms and procedures established by the Bricklaying Enforcement System shall prevail.

Article 5 – Arbitration

5.01         The parties to this Agreement agree that any grievance concerning the interpretation or alleged violation of this Agreement which has been properly carried through all the steps of the grievance procedure outlined in Article 4 above and which has not been settled, may be referred to Arbitration.

5.02         A grievance may be referred to arbitration pursuant to any of sections 48, 49 or 133 of the Labour Relations Act by the grieving party.  The parties may also agree to refer the grievance to a mutually selected single arbitrator, or pursuant to the Bricklaying Enforcement System.

5.04         The Arbitrator shall not have any power to alter or change any of the provisions of this Agreement or to substitute any new provisions for any existing provisions nor to give any decision inconsistent with the terms and provisions of this Agreement.

5.06         In addition to the above procedures, a grievance arising under any provisions of this agreement may be referred to expedited arbitration procedures established by Bricklaying Enforcement System attached hereto as Schedule “C”.  It is further agreed that the terms and provisions of the Bricklaying Enforcement System form part of this Agreement and the terms and conditions of the Bricklaying Enforcement System may be interpreted and applied by any Arbitrator or Board of Arbitration with jurisdiction arising out of this agreement, the Bricklaying Enforcement System or the Ontario Labour Relations Act.

Schedule “C”

 

Bricklaying Enforcement System

2.02         Expedited Arbitration Procedure

         (a)           The term “Monetary Grievance” wherever used in this Enforcement Agreement shall mean a grievance concerning the interpretation, application, administration or alleged violation of a provision of the Collective Agreement relating to payment for hours of work, rates of pay, overtime, premiums (shift and compressed air), traveling expenses, room and board allowances, reporting allowances, pension, welfare and industry fund contributions and dues or any other form of compensation to or on behalf of an employee and monetary grievances in accordance with existing jurisprudence under the Enforcement System.  The term “Non-Monetary Grievance” wherever used in this Enforcement Agreement shall mean a grievance other than a “Monetary Grievance”, and shall include but not be limited to a grievance relating to discharge or discipline.  The term “Grievance” whenever used alone in this Agreement shall mean a Monetary Grievance or a Non-Monetary Grievance.

         (b)           Any party bound by this procedure may initiate the Expedited Arbitration process by service of a Grievance, in writing, by facsimile transmission, regular mail, or courier (including Canada Post Courier) on the affected Masonry Contractor.

         (c)           After fifteen (15) calendar days from service of the Grievance, the Union may refer the Grievance to Expedited Arbitration hereunder.  Notice of such Referral to Expedited Arbitration shall be served by facsimile transmission, regular mail, or courier (including Canada Post Courier) upon the Masonry Contractor, the Builder and the Arbitrator.

         (e)           The Arbitrator shall commence the Expedited Arbitration Hearings within ten (10) days from service of the Referral to Expedited Arbitration. …

         (m)          This arbitration process shall be in addition to and without prejudice to any other procedures and remedies that the parties may enjoy including applications to a Court; or to the Ontario Labour Relations Board pursuant to section 96 of the Labour Relations Act, as amended; or under the Construction Lien Act; or any other operative legislation; or provided under any collective agreement.  Any Grievance concerning the interpretation, application, administration or alleged violation of the Collective Agreement may be processed through the grievance/arbitration procedure outlined in Articles 4 and 5 of the Collective Agreement or under this Expedited Arbitration Procedure or referred to arbitration pursuant to section 133 of the Labour Relations Act, provided however that any Grievance may not be processed under more than one of these arbitration mechanisms.  Where a Grievance has been properly referred to the procedure provided for in this Bricklayers’ Bricklaying Enforcement System, it is understood and agreed that all of the parties shall be deemed to have waived any right to refer the Grievance to arbitration under section 133 of the Labour Relations Act, or pursuant to Articles 4 and 5 of the Collective Agreement and any such referral shall be null and void. …

  1.    The Positions of the Parties

  1. 10.           I set out below, in a very abbreviated form, the pertinent submissions made by counsel.

  1. 11.           The union relies upon the decision of the Board in Kennedy Masonry Company Limited, [1998] OLRB Rep. July/August 622 (“Kennedy Masonry”). Counsel for the union points to Kennedy Masonry to support his assertion that the Board has long recognized that the BES is the very best forum for the arbitration of grievances filed under the collective agreement.  Counsel submits that the BES establishes a “level playing field” for all contractors bound to the collective agreement, provides for a roster of permanent arbitrators with broad remedial powers, and facilitates hearings that are both expedited and effective.

  1. 12.           Counsel for the union reviewed Kennedy Masonry in some detail, and adopted all of the observations made by the Board in that decision in support of his client’s position.  Amongst other passages from the Board’s decision, counsel relied upon the following six paragraphs to highlight why the Board ought to exercise its authority under subsection 133(4) of the Act to refuse to accept this grievance referral:

  1. 41.   It is also important to emphasize that, from a labour relations perspective, there is nothing unconscionable about the enforcement mechanism, or the objective that it is designed to achieve; moreover, it emerges from an institutional setting in which individual employers are not obliged to participate. Individual employers do not have to belong to MCAT. Individual employers can decide to negotiate on their own. However, once they decide to band together to negotiate a master agreement, it is hardly surprising – indeed it is commercially sensible – that the union and the employer association would fashion a framework from which participants could not deviate. Otherwise there would be little value in multi-employer bargaining.

  1. 42.   From this perspective, therefore, the expedited arbitration component of the system is more than just a simplified procedure for collecting monies owing. It is one element in a broader framework designed to achieve a level playing field for the employer-competitors bound by the master agreement. It bolsters the collective-bargaining regime. And it does that (in part) by imposing an expedited arbitration process, as well as a schedule of financial penalties on parties who deviate from the negotiated norm. To be colloquial once again: it is a system of “carrots” and “sticks” which the institutional parties (and the builders) hope will bolster both the bargaining process and the bargaining outcome.

  1. 43.   In our view, it is inappropriate to separate the arbitration component from the overall regulatory scheme, or to disregard the industry problems to which the parties have turned their attention. Nor, in our view, should the Board lightly embrace an interpretation which would fragment or frustrate that scheme. For not only is the enforcement process a sensible one, given the parties’ history and problems, but in our opinion, there is no reason for the Board to insert itself into that process. To put the matter another way: there is no reason for the Board to usurp the role that sophisticated institutional parties have so clearly consigned to the expedited arbitrator.

  1. 44.   The expedited arbitration mechanism devised by the parties is faster, more flexible, and just as “final” as the process available under section 133 of the Act; and the permanent arbitrator’s decisions are just as “enforceable” as those of the Board (pursuant to sections 48(1 8)-(20) of the Act). It is a process which is neither substantively nor remedially deficient. Moreover, the permanent arbitrator will have an expertise and sensitivity to the parties’ needs. That is what flows from a system in which the “permanent umpire” will see the whole range of issues which surface in this corner of the industry. That, no doubt, was one of the reasons why the institutional parties opted for a “permanent umpire” system.

  1. 45.   It is evident that the institutional parties have carefully selected the adjudicator and tailored his/her jurisdiction to their own needs. They have created their own model of self-regulation. They have “customized” their own arbitration And, in our view, there is no reason to prefer the Board’s processes over those created by the parties themselves – particularly since the parties have equipped the arbitrator with an arsenal of specific remedial tools to deal with the problems that s/he may face. Indeed, as the Board observed in Kennedy #1, this “private system” probably accomplishes the statutory objective much better than the statutory model does.

  1. 46.   In summary, the “private process” is completely congruent with statutory objectives, is no less effective, and, of course, makes no demands at all on the public purse. (emphasis in original)

During the course of argument, counsel for the union also made reference to Toronto Community Housing Corporation, 2006 CanLII 26468; Hydro One Inc., 2017 CanLII 37446; and Prescott Masonry & Restoration Inc., 2018 CanLII 117059.

  1. 13.           Counsel for the union argued that the BES is the grievance arbitration process agreed upon by MCAT and the union, is a process that creates a level playing field amongst contractors bound to the collective agreement, and results in decisions that are issued in a more timely fashion than those issued by the Board.  Counsel asserted that the Board ought not to “send a signal” to contractors bound to the collective agreement that they can avoid the BES by referring grievances to the Board pursuant to section 133 of the Act.

  1. 14.           Counsel for MCAT argued that the roster of permanent arbitrators that is established by the collective agreement are true specialists, and that that is in and of itself a good reason to refuse to accept this grievance referral pursuant to subsection 133(4) of the Act.  Counsel also argued that the Board should resist the urge to conclude that this application ought to proceed simply because it was filed first in time.  As did counsel for the union, counsel for MCAT argued that to reach that conclusion would effectively delete the BES from the collective agreement.

  1. 15.           Counsel for Legacy argued that, having regard to the clear wording contained in subsection 133(1) of the Act, any entity bound to a collective agreement has the right to refer a grievance to the Board despite any arbitration provision contained within that collective agreement.  Here, Legacy delivered and filed its grievance referral to the Board on March 13, 2019, eight days before the grievance was referred to arbitration by the union under the BES.  Counsel for Legacy argues that, by virtue of the timing of its referral to the Board, the Board ought to adjudicate this grievance.  Counsel acknowledges that timing is not a determinative factor, but asserts that it is a factor that should be of great significance to the Board.

  1. 16.           Legacy asserts that the language of the collective agreement supports its position.  Counsel notes that Article 2.02(m) of the BES provides that any grievance may be referred to arbitration pursuant to section 133 of the Act, and states that his client simply did so.  As the language contained in that same Article precludes a grievance from being processed under more than one of the arbitration mechanisms, Legacy argues that the grievance referral to the BES was not “properly referred” to the BES by the union.  In these circumstances, Legacy argues that the Board ought not to decline to accept its grievance referral.

  1. 17.           Finally, Legacy argues that the Board ought to declare the BES to be unenforceable because it suffers from institutional bias.  Legacy does not take issue with the neutrality of any of the adjudicators identified as permanent arbitrators under the collective agreement.  However, counsel for Legacy notes that it is the union that unilaterally selects an arbitrator from the panel of permanent arbitrators, which provides it with the ability to choose an individual who will likely make decisions aligned with its interests.  Legacy argues that this amounts to a clear institutional and/or systemic bias, and is contrary to the rules of natural justice.  In the circumstances, Legacy states that the Board should not defer to an adjudicative system and procedure which is institutionally biased.

  1. Reasons for Decision

  1. 18.           Subsection 114(1) of the Act provides the Board with the exclusive jurisdiction to exercise the powers conferred upon it by or under the Act.  Included amongst those powers is the authority of the Board to exercise its discretion under subsection 133(4) of the Act to not accept this grievance referral.  The issue to be decided in this case is whether I ought to exercise that discretion in the circumstances.

  1. 19.           First, I consider it appropriate to note that I do not disagree with the vast majority of the observations made by the Board in Kennedy Masonry.  It is important to appreciate, however, that Kennedy Masonry was a case in which the union referred grievances to arbitration pursuant to the BES before the employer made application to the Board under section 133 of the Act.  Here, the timing of the referrals is different.  As will become evident, the difference in timing meaningfully distinguishes this proceeding from Kennedy Masonry.

  1. 20.           I consider first the key elements of the BES.  It is a unilateral process, in which filing a grievance and referring that grievance to arbitration is available only to the union.  Article 2.02(b) of the BES permits “any party bound by this procedure” to initiate the BES process.  However, to do so, a grievance must be served “on the affected Masonry Contractor”.  Accordingly, should an employer bound to the collective agreement file a grievance against the union and desire to utilize the BES, it cannot do so.  Only the union has that right.  Here, the union exercised that right on February 27, 2019.

  1. 21.           Consistent with the above, it is evident from a plain reading of Article 2.02(c) of the BES that only the union has the authority to refer a grievance to expedited arbitration under the BES.  An employer bound to the collective agreement has no power to do so.  An employer may desire to use the BES to have a grievance that it has delivered (or that it has received) adjudicated, but it is precluded from utilizing the BES.

  1. 22.           Here, Legacy decided to refer to arbitration the grievance that was served upon it by the union on February 27, 2019.  Legacy is precluded from using the BES to do so.  However, Article 5.02 of the collective agreement provides that Legacy can refer the grievance to arbitration pursuant to section 48, 49, or 133 of the Act.  It chose to refer the grievance to the Board on March 13, 2019 pursuant to section 133 of the Act.  This was an option that the parties to the collective agreement agreed it could exercise.  In fact, given the opening words of subsection 133(1) of the Act, there can be no dispute that Legacy had the right to do so.  The decision made by Legacy to refer the grievance to arbitration pursuant to section 133 of the Act was an option that was authorized by the Act and the collective agreement, and was clearly within the mutual expectation of the parties.

  1. 23.           The union argues that I ought to refuse to accept this grievance referral for a number of reasons.  Counsel for the union pointed to the unique remedies established by Articles 2.02(g) through 2.02(l) of the BES, and asserted that it was not clear that a panel of the Board sitting as a grievance arbitrator under section 133 of the Act would have the authority to exercise those remedies.  Consistent with the need to ensure a “level playing field” for masonry contractors bound to the collective agreement, counsel for the union argued that Legacy ought to be subject to those same obligations.

  1. 24.           I agree with the latter proposition.  However, it is not an issue here.  Assuming that the remedies set out in Article 2.02 of the BES would apply to the instant grievance (i.e. that a subcontracting grievance is a “Monetary Grievance” as defined in the BES), it is clear that a panel of the Board would have the authority to order those remedies where appropriate.  Article 5.06 of the collective agreement states that the terms and conditions of the BES form part of the collective agreement and “may be interpreted and applied by any Arbitrator or Board of Arbitration with jurisdiction arising out of this agreement, the Bricklaying Enforcement System or the Ontario Labour Relations Act”.  There can be no doubt that the Board, sitting as a board of arbitration pursuant to section 133 of the Act, can interpret and apply all of the terms and conditions established by the BES, including its remedial provisions.

  1. 25.           During argument counsel for the union also referred to Article 2.02(c) of the BES, which requires the union to wait until the passage of 15 calendar days from service of the grievance before it can refer the grievance to arbitration under the BES.  Counsel observed that an employer that chooses to refer a grievance to arbitration pursuant to section 133 of the Act does not have that same obligation, and therefore can refer the grievance to arbitration more quickly than can the union.  To the extent that the Board were to consider as significant the forum first chosen, counsel for the union argued that the BES could effectively be written out of the collective agreement by employers referring grievances to arbitration under section 133 of the Act.

  1. 26.           On one level the concerns articulated by counsel for the union are not fairly held.  As noted above, the Board sitting as an arbitrator under section 133 of the Act has the full authority under the collective agreement to apply all of the remedial terms and conditions contained in the BES.  Accordingly, none of the substantive provisions contained in the BES will be negated should this grievance be adjudicated by a panel of the Board under section 133 of the Act.  That said, the forum first chosen does have some significance here, given the wording of Article 2.02(m) of the BES.  The key passage contained in that provision of the BES states:

… Any Grievance concerning the interpretation, application, administration or alleged violation of the Collective Agreement may be processed through the grievance/arbitration procedure outlined in Articles 4 and 5 of the Collective Agreement or under this Expedited Arbitration Procedure or referred to arbitration pursuant to section 133 of theLabour Relations Act, provided however that any Grievance may not be processed under more than one of these arbitration mechanisms.  Where a Grievance has been properly referred to the procedure provided for in this Bricklayers’ Bricklaying Enforcement System, it is understood and agreed that all of the parties shall be deemed to have waived any right to refer the Grievance to arbitration under section 133 of the Labour Relations Act, or pursuant to Articles 4 and 5 of the Collective Agreement and any such referral shall be null and void.

  1. 27.           Counsel for the union argued that a plain reading of this provision should lead me to conclude that I ought to exercise my discretion under subsection 133(4) of the Act to refuse to accept this grievance referral.  Counsel argued that Article 2.02(m) clearly states that all parties shall be deemed to have waived any right to refer a grievance to arbitration under section 133 of the Act, or pursuant to Articles 4 and 5 of the collective agreement, where a grievance has been properly referred to the BES.  Here, counsel for the union states that the grievance was properly referred to the BES by the union on March 21, 2019, and that in the circumstances the instant referral to the Board is “null and void”.

  1. 28.           With respect, I do not agree with the position argued by the union.

  1. 29.           It is critical to consider the language contained in Article 2.02(m) of the BES immediately before that relied upon by the union.  That portion of Article 2.02(m) states that any grievance concerning an alleged violation of the collective agreement may be processed through the grievance and arbitration procedures outlined in Articles 4 and 5 of the collective agreement, under the BES, or under section 133 of the Act.  Again, the collective agreement makes it clear that a grievance referral made by a party to the Board under section 133 of the Act falls squarely within the expectations of the parties.  Of critical significance, Article 2.02(m) goes on to state that a grievance “may not be processed under more than one of these arbitration mechanisms”.  This, of course, makes sense.  For obvious reasons, the merits of any given grievance should only be adjudicated once.

  1. 30.           Counsel for MCAT argued that the grievance referral made by Legacy has not yet been “processed” by the Board, because the Board must accept the grievance referral before doing so, and the Board has not yet accepted the grievance referral, having regard to the request made by the union to refuse to accept it pursuant to section 133(4) of the Act.  With respect, I disagree.  Counsel for the union asserted during argument that the grievance referral made by the union to Mr. Slaughter as a board of arbitration commenced being processed under the BES on March 21, 2019, when counsel for the union wrote to Mr. Slaughter to confirm his appointment. I agree with the latter approach.

  1. 31.           The processing of a grievance referral by the Board is an administrative act which commences when the referral is received by the Board.  Here, the Board commenced processing the grievance referral made by Legacy on March 13, 2019 when it was filed with the Board and the Registrar assigned it Board File No. 3749-18-G.  The Board continued to process the grievance referral on March 14, 2019 by delivering to the parties a Confirmation of Filing of Application, and a Notice of Hearing, which set a hearing date of March 27, 2019.  A decision that may be made by the Board at a later date to refuse to accept the grievance referral is a quasi-judicial determination which would have the effect of ending the processing of the grievance.  However, the fact that a party has raised for consideration the application of subsection 133(4) of the Act does not mean that the Board has not previously accepted the grievance referral and has not been processing this application to that time.  If I were to determine that I ought to exercise my authority under subsection 133(4) of the Act to refuse to accept this grievance referral, it would be difficult to assert credibly that the grievance referral had not been accepted and processed by the Board prior to that determination.

  1. 32.           Article 2.02(m) of the BES states that where a grievance has been properly referred to the BES, all parties are deemed to have waived any right to refer the grievance to the Board pursuant to section 133 of the Act.  Given that the instant grievance had been processed by the Board pursuant to section 133 of the Act before it was processed under the BES, and the collective agreement expressly states that a grievance may not be processed under more than one of the arbitration mechanisms identified in Article 2.02(m) of the BES, it is not possible to conclude that the grievance was “properly referred” to the BES when it was sent to Mr. Slaughter on March 21, 2019.  Simply put, a grievance referral cannot be said to have been “properly referred” to the BES when the collective agreement expressly provides that a grievance can only be processed under one of the resolution mechanisms provided for in the collective agreement, and this grievance had already been processed under section 133 of the Act.

  1. 33.           I also reject the position asserted by the union because it could lead to absurd results.  During the course of argument, I asked counsel for the union how far his client might pursue its position.  If the grievance that is the subject of this referral were before a panel of the Board pursuant to a referral made under to section 133 of the Act, and one day of hearing had been completed, could the union refer the same grievance to arbitration under the BES, and assert that Article 2.02(m) deemed the hearing then in progress before the Board to be null and void?

  1. 34.           Counsel for the union, after taking instructions, confirmed that his client disagreed with that proposition. Counsel asserted that his client was of the view that it would not be appropriate to assert that an arbitration hearing under section 133 of the Act was null and void once it had “commenced”.  Counsel asserted that the hearing in this proceeding had not yet commenced, so his client could assert that the language nonetheless applied.

  1. 35.           I have concerns with this position.  At the very least, the position asserted by the union is not what is provided for by the language contained in Article 2.02(m) of the BES.  That language does not state that the deemed waiver contained therein has no application once a hearing under section 133 of the Act has “commenced”, even if one could identify exactly when that particular point in time occurs.  Article 5.04 of the collective agreement precludes an arbitrator from altering the language contained in the collective agreement.  I am bound to apply the language contained in Article 2.02(m) as it reads, and in my view that language is clear.

  1. 36.           As noted earlier in this decision, the union is concerned that any employer could preclude it access to the BES by filing a grievance referral pursuant to section 133 of the Act before the union has had an opportunity to file the grievance under the BES.  However, this same concern applies to employers under the collective agreement.  An employer that files a grievance against the union or has a grievance filed against it can only refer that grievance to arbitration under sections 48, 49 or 133 of the Act.  The collective agreement makes it very clear that section 133 is an option available to the parties.  If the position asserted by the union is correct, then it can effectively write out section 133 of the Act, notwithstanding the opening words of subsection 133(1).  That is, the position asserted by the union would provide it with the unilateral option of nullifying any grievance referral made to the Board under section 133 of the Act by invoking the BES, contrary to subsection 133(1) of the Act.

  1. 37.           Having regard to all of the above, I reject the position asserted by the union that the language contained in Article 2.02(m) of the collective agreement deems Legacy to have waived the right to refer the instant grievance to arbitration under section 133 of the Act.  For the reasons set out above I am of the view that it cannot be said in the circumstances that the referral made by the union to Mr. Slaughter on March 21, 2019 was “proper” as defined by Article 2.02(m).  That being the case, it cannot be concluded on the language of the collective agreement that the referral made by Legacy to the Board on March 13, 2019 is “null and void”.

  1. 38.           Counsel for the union and counsel for MCAT each argued that the panel of permanent arbitrators is a group of specialized, expert adjudicators who know the parties and the collective agreement, and that this was another reason to exercise my discretion under subsection 133(4) of the Act.  I place little weight on that argument.  I do not know the extent to which any of the permanent arbitrators have unique knowledge of the collective agreement – I heard no evidence in that respect.  The Board is composed of Vice-Chairs, many of whom have considerable experience in arbitrating construction industry grievances under section 133 of the Act.  The panel of permanent arbitrators under the collective agreement consists of six senior arbitrators.  Five of those six individuals are former Vice-Chairs of the Board.  One of those five individuals – Mr. Slaughter, the arbitrator chosen by the union in its referral under the BES – is currently a Vice-Chair of the Board.  I certainly was not provided with any examples of decisions issued by members of the panel of permanent arbitrators which demonstrate an enhanced level of expertise.  In the circumstances I am not satisfied that the expertise enjoyed by the panel of permanent arbitrators meaningfully outweighs the expertise enjoyed by the construction industry Vice-Chairs of the Board.

  1. 39.           Finally, counsel for the union made reference to the expedited nature of the BES process during argument.  He noted that Article 2.02(e) of the BES requires the permanent arbitrator to commence an expedited arbitration within ten days from service of the grievance referral, that counsel must be able to accommodate the hearing schedule set by the arbitrator, and that adjournments may not be granted due to unavailability of counsel, or for business demands, or because additional time is required to prepare.  Counsel also observed that permanent arbitrators may schedule evening hearings.  All of these provisions, it was argued, recommend the use of the BES over section 133 of the Act, and support the proposition that I ought to exercise my authority under subsection 133(4) of the Act to refuse to accept this grievance referral.

  1. 40.           The position asserted by counsel for the union has some merit, to the extent that he observes that evening hearings held under the BES may facilitate a more timely resolution of grievances.  In the normal course the Board does not hold evening hearings to adjudicate construction industry grievances.  That said, I observe that this grievance referral was scheduled for hearing before Mr. Slaughter for 10:00 am on April 4, 2019.  According to counsel for the union, the date and time chosen for the hearing was based upon the availability of Mr. Slaughter.

  1. 41.           None of the other concerns raised by counsel for the union has persuaded me to refuse to accept this grievance referral.  As noted earlier, Article 5.06 of the collective agreement provides that the Board, sitting as a board of arbitration under section 133 of the Act, may interpret and apply the terms and conditions of the BES.  The desire of the parties to this proceeding for the adjudicator to not grant adjournments due to the unavailability of counsel, or for business reasons, or because a party needs additional time to prepare, can be enforced by the panel of the Board assigned to hear the merits.

  1. 42.           In my view, this decision simply applies the language contained in the BES in a practical, common sense manner.  It is evident that it was within the expectations of the parties that this grievance could be referred to the Board under section 133 of the Act – the Act confers that right to Legacy independently of the collective agreement.  Legacy chose to do so, and it was processed by the Board in the normal course.  At the time that Legacy referred the grievance to the Board for arbitration, the union had not referred the grievance to the BES.  When it was subsequently referred to the BES for arbitration eight days later, that referral was not “proper”, in the sense that it rendered the referral under section 133 of the Act null and void, given that Article 2.02(m) of the collective agreement states that a grievance may not be processed under more than one of the arbitration

  1. 43.           Having regard to all of the above, I concluded that the circumstances before the Board did not lend themselves to the conclusion that I ought to exercise my discretion under subsection 133(4) of the Act to refuse to accept this referral.  The parties were advised of my decision on April 2, 2019.

  1. 44.           I am not seized of this proceeding.