Filed a grievance late? The Arbitrator has the power to extend the timelinesMost, if not all, collective agreements provide a timeline within which a worker is permitted to file a grievance. Some Collective Agreement provide a generous timeline, such as 30 days in the Ontario Public Service, others as little as seven days in a few Broader Public Service locals. Regardless of the time provided, filing a grievance within the time limits will avoid a preliminary motion by the Employer to try and get the case thrown out from the very beginning, before it has a full hearing, on the basis of untimeliness.Employers love to file these timeliness motions to avoid the real issue and to avoid spending money and resources on litigating the case. In a preliminary motion on timeliness they are attempting to have it dismissed in one single hearing day.If an Employer brings a motion that a grievance was filed past the timelines, then the Union can fight back by arguing there are reasonable grounds for extending the timelines. In most cases, Arbitrators have the power to extend timelines for filing a grievance under
Section 48(16) of the Labour Relations Act which provides:“Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under the collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.”It is important to note that where a collective agreement states that 48(16) does
not apply, the arbitrator does not have this discretion. It is also important to note that the discretion only applies when the grievance is filed late at the very beginning and does not apply to the timelines for referring the grievance to arbitration, the final stage of the grievance procedure. Arbitrators do not have the legal power to extend timeliness for late referrals. The OPS collective agreement has a specific and rare exception to this: it explicitly says the arbitrator can forgive the late referral of the grievance. In almost all other cases, and unless the CA has similar explicit language, a late referral is fatal for a grievance, regardless of the merits.What are these reasonable grounds? In the case law, arbitrators have identified a few factors they might consider when determining whether there are reasonable grounds to exercise their legal discretion. In
Becker Milk Company and Teamsters Union, Local 647 (1978), 19 L.A.C. (2nd) 217 (Burkett), Arbitrator Burkett identified three factors:
- The reason for the delay given by the offending party.
- The length of the delay.
- The nature of the grievance.
Building on the Becker Milk Company award, Arbitrator Schiff laid out six interrelated factors to assess extension of timelines in his award
Greater Niagara General Hospital and O.N.A. (1981), 1 L.A.C. (3rd) 1 (Schiff), and which has become the key case for assessing timeliness claims in Ontario:
- The nature of the grievance.
- Whether the delay occurred in launching the grievance or at a later stage.
- Whether the grievor was responsible for the delay.
- The reasons for the delay.
- The length of the delay.
- Whether the Employer could reasonably have assumed the grievance had been abandoned
Arbitrator Lynk further reviewed the law with respect to these factors in his award
Ontario Public Service Employees Union (Robbins) and Liquor Control Board of Ontario (2015) CanLII 36165. He found that the more significant the grievance issue – such as termination for example, or serious discipline – the greater the weight given in favour of the extension. More favour is given to the extension if the responsibility of the delay wasn’t the grievor’s (for example if there were administrative errors committed by the Union). He also found that the longer the delay, the greater the onus is on the Union or grievor to provide a credible explanation, and a finding of bad faith in advancing the grievance would weigh against extending the timelines.A recent OPSEU/SEFPO case illustrates how these factors can be applied is
Ontario Public Service Employees Union (Stanley) and Ministry of Natural Resources and Forestry (2024) CanLII 16536. Arbitrator Beatty found in favour of the Union and extended time limits after analysing the relevant factors. The grievor was employed as a pilot and placed on unpaid leave because he refused to disclose his COVID-19 vaccination status. The Employer received the grievance eight days after the established deadline in the OPS Collective agreement. First, the Arbitrator found that the delay was relatively short, which reduces any prejudice to the Employer with respect to memory for example; second, the grievor was not responsible for the delay, it was the local that was responsible for the delay; third, the nature of the grievance was serious as an unpaid leave is akin to a lengthy suspension with no definite return date; and fourth, the Employer did not allege it suffered any prejudice in being able to respond and defend itself on the grievance issue as a result of the delay.It is imperative that Unions are diligent in filing on time, never give the Employer a way to get the grievance thrown out before the problem for the worker is resolved. However, if a grievance is filed late, the Union may be able to defeat Employer’s timeliness motion by asking the Arbitrator to extend timelines and relieve against the delay based on the reasonable grounds reflected in the case law.
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