Emond Harnden- Ontario Court rules against arbitrators’ jurisdiction to extend arbitration deadlines

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The Ontario Divisional Court has recently handed down a decision concerning arbitrators’ power to extend the time limits for referring grievances to arbitration. In Service Employees International Union v. Leisureworld Nursing Homes (April 17, 1997), the Court considered the effect of one of the Conservative government’s 1995 amendments to the Labour Relations Act.

The provision at issue was section 48(16), which empowers arbitrators to “extend the time for the taking of any step in the grievance procedure under a collective agreement…”. This essentially restored the language that existed before the provision was amended by the NDP in 1992. In the NDP’s version, the passage read, “…in the grievance or arbitration procedure…”. [emphasis added].

Because of this change, the majority of the board of arbitration had ruled that it had no power to extend the deadline for a referral to arbitration where the collective agreement stipulated mandatory time limits and the union’s request for referral was untimely. The union applied for judicial review of the board’s decision.

The union argued that the amendment did not remove the arbitrator’s power to extend the time limits. It supported this claim by pointing to several awards handed down under the pre-1992 provision, in which time limits were extended despite substantially similar statutory language.

However, the Court disagreed. It held that there was a fundamental difference between grievance and arbitration, noting that the Act required collective agreements to provide for arbitration procedures, but not grievance procedures. It went on to rule that the meaning of the change in the language of the Act due to the 1995 amendments was unambiguous:

“The jurisdiction to grant relief from time limitations with respect to grievances cannot and should not be interpreted to also grant relief from the time limits for referral to arbitration. Section 48(16) is clear and unambiguous. To conclude otherwise would mean that the deletion of the words “or arbitration” from the 1995 legislation had no effect whatsoever. The words in the statute must be given their clear meaning. The Board had no jurisdiction to extend the time limit for referral to arbitration.”

Since this decision, several arbitrators have applied this reasoning and ruled that it is beyond their authority to grant relief from arbitration deadlines in a collective agreement. One, however, has noted that there might be grounds for doing so where the agreement treats the grievance and arbitration procedures as indistinguishable. He further expressed the view that, while the Court’s interpretation may be legally correct, the loss of discretion to extend the time limit is not likely to foster good labour relations.

Leave to appeal the Divisional Court’s ruling has been granted by the Ontario Court of Appeal. (For more recent developments, see Leisureworld appeal dismissed “ on our Publications page.)