IN THE MATTER OF AN ARBITRATION. TORONTO POLICE ASSOCIATION (hereinafter called the Association)

Transcription

1 --- ~.. " IN THE MATTER OF AN ARBITRATION BETWEEN: TORONTO POLICE ASSOCIATION (hereinafter called the Association) - and - TORONTO POLICE SERVICES BOARD (hereinafter called the Employer) - and - SIX GRIEVANCES SOLE ARBITRATOR PROFESSOR IAN A. HUNTER REPRESENTATIONS: FOR THE ASSOCIATION: FOR THE EMPLOYER: Mr. Roger Aveling, Counsel Mr. Bruce K. Stewart, Counsel ARBITRATION HEARINGS WERE HELD IN TORONTO, ONTARIO ON DECEMBER 1 AND DECEMBER 15, 23

2 DECISION ON PRELIMINARY ISSUE 2 (1) Introduction Before me are a total of six (6) grievances involving five (5) Toronto police officers (Costabile, who was two (2) grievances; Broske; Colmanero; Crisanti; Pignatelli), all of whom at the relevant time were members of D platoon at 14 Division. 14 Division is a busy, downtown division. All of the Grievors were signatories to a letter, prepared by P.C. Costabile (a Toronto Police Association Steward at 14 Division) in April, 22 concerning personnel issues and Q alleged morale problems in 14 Division. As a result of this letter, Toronto Police Internal Affairs began an investigation in May, 22. Over the next four (4) months, approximately ninety (9) officers (including all five (5) Grievors) and civilians/employees were interviewed by the investigator (Inspector Qualtrough) or his assistants. On September 23,22 Inspector Qualtrough's Report (Exhibit 4A) was released. The Report thus describes the allegation under investigation: "That Staff Sargeant Ralph Brookes through favouritism, deceit and improper manipulation in the exercise of his authority has created a troubled work-environment that greatly affects the morale of the platoon." u The Report, and its conclusion, will no doubt figure prominently in my eventual decision. It is sufficient, for now, to note that each Grievor was either (a) transferred or (b)

3 I reassigned out of D platoon, based on the Qualtrough investigation and Report. Those 3 "moves" (to employ a neutral term) are the gravamen of the grievances (Exhibit 1) before me. (2) The Grievances (Exhibit 1) With the exception of the Costabile transfer grievance (Exhibit 1, Tab 1), all other grievances summarize the nature of the grievance and the remedy sought in identical terms (I use Broske's grievance as illustrative (Exhibit 1, Tab 2): t") \,.,;1 Please be advised that the above-noted member and the Association are grieving his recent reassignment. On the basis of what the TPA currently understands to have happened, we are contending that the direction given to him that he was to move to another platoon was discriminatory, without reasonable cause, and an act of discipline, all of which is contrary to the management's rights clause of the uniform collective agreement. We reserve the right to allege other violations of the collective agreement if they subsequently become apparent. As remedy, we seek this officer's immediate placement back on his original platoon. It should be noted that all grievances were processed (a) through the Collective Agreement grievance procedure (Exhibit 3, Article 15);(b) through the conciliation process set out in the Police Services Act, section 123. In addition, the parties voluntarily sought the mediation services of Mr. Kevin Whittaker in August 23.

4 ~ - (3) The Collective Agreement (Exhibit 3) 4 The relevant provision of the Collective Agreement is as follows. ARTICLE 3 - MANAGEMENT RIGHTS 3.1 (a) The Association and its members recognize and acknowledge that, subject to the provisions of the Police Services Act and the Regulations thereto, it is the exclusive function of the Board to: (i) (ii) (iii) maintain order, discipline and efficiency; discharge, direct, classify, transfer, promote, demote or suspend, or otherwise discipline any member; hire. (b) (c) If a member claims that the Board has exercised any of the functions outlined in paragraph (a) (ii) in a discriminatory manner or without reasonable cause, then such a claim may be the subject of a grievance under the provisions of the grievance procedure outlined in this Collective Agreement or dealt with under procedures within the exclusivejurisdiction of the Ontario Civilian Commission on Police Services,as prescribed by the Police Services Act. The Board agrees that it will not exercise any of the functions set out in this Article in a manner inconsistent with the provisions of this Collective Agreement or the Police ServicesAct of Ontario and the Regulations thereto. (4) My Appointment as Arbitrator On July 21,231 received a fax from Mr. Roger Aveling requesting me, on behalf of both parties, to act as arbitrator. I replied on July 24, 23 accepting the appointment and proposing hearing dates. On August 27, 23 I wrote to both counsel setting out December 23 dates that had been agreed to.

5 The arbitration commenced on December 1, 23 at which time I heard lengthy 5 and helpful opening statements from both counsel. Mr. Stewart advised that he would be making a preliminary objection on the next date (December 15, 23). On December 15, 23 I heard argument, and received submissions on the preliminary objection. This interim Decision deals only with that preliminary objection. No viva voce evidence has yet been heard. Any factual statements in this interim Decision are based on opening statements only, and remain to be proved in evidence. (5) The Preliminary Objection Following the Kevin Whittaker mediation attempt in August 23, Mr. Martin Weatherall, Director of Legal Services at the Toronto Police Association, wrote to Ms. Maria Ciani, Manager of Labour Relations at the Toronto Police Service, as follows (Exhibit 2, Tab 8): Dear Ms. Ciani: Re: Gino Costabile (3457) - Transfer Grievance; Peter Broske (86775), Victor Colmanero (34), Cosmo Crisanti (394), Tony Pignatelli (4453) - Reassignment Grievances So that there is no misunderstanding, we wish to clarify our position with regard to the remedy that will be sought at arbitration. In addition to each of the Grievors being ordered back to their former platoons and assignments, the Association and the Grievors are also seeking the following: An order that S/Sgt. Ralph Brookes be transferred out of 14 Division; an order of compensation for any and all losses suffered by the Grievors, including, but not limited to, compensation for mental anguish and for being wrongly stigmatized as troublemakers who conspired to undermine S/Sgt. Brookes;

6 such further or other relief as may be appropriate, including punitive damages. 6 Yours sincerely, TORONTO POLICE ASSOCIATION Martin Weatherall Director of Legal Services On August 27,23 Ms. Ciani wrote to Mr. Weatherall, as follows (Exhibit 2, Tab 8): Re: Gino Costa~) -Transfer Grievance: Peter Broske (86775). Victor Co!manero (34). Cosmo Crisanti (~). Tony Pignatelli (4453) -Reassignment Grievances Please accept this letter as response to your correspondence of August 26, 23 regarding the above noted grievances. The Service would like to reiterate its consistent response to the Reassignment Grievances of Broske, Colmanero, Cristani and Pignatelli. The Service maintains that these matters are not arbitrable as reassignments are not issues that fall within the ambit of the collective agreement. The fact that we agreed to attempt a resolution of these matters in concert with PC Costabile's grievance was without prejudice to the Service's unwavering position on the reassignment grievances, set out above. - Your letter raises new concerns and places new issues "in dispute" that were not raised formally by the Association prior to yesterday's mediation attempt. I would note that mediation is not a formal step in the dispute resolution process between the parties. We agreed to your request for such a step, in good faith, with the understanding that the parties would attempt to resolve the grievances, by discussing the issues we agreed were in dispute throughout the grievance and conciliation processes. For the Association to raise new issues at this point in the process is both unfair and prejudicial to the Service and, our continuing collective bargaining relationship. As such, if these matters are referred to arbitration, the Service will make strenuous arguments that the Association should not be permitted to change the essential nature of the grievances at this late juncture, and that the grievances should be adjudicated and resolved based on the plain language put forward by the Association in the actual grievance letters. I will now turn to each of the "new" remedies you wish to "clarify" in your latest correspondence. For ease of reference, I will respond to each "remedy" with a corresponding numbered paragraph.

7 The Service/Board will vigorously object to the Association raising the transfer of S. Sgt. Brooks out of 14 Division. The assignment of staff lies within the exclusive jurisdiction of the Board and the transfer of a supervisor, who is not involved as a party to the grievance, is not something an arbitrator even has jurisdiction to rule on. 2. The Service agrees that an order for lost wages is something that an arbitrator has jurisdiction to award, to make the member whole. Your current claim for "Tort" damages, however, is something the Association did not raise at any point throughout the dispute resolution process, including yesterday's mediation attempt. Your letter of yesterday was literally the first time we have heard about these new heads of damages and as such, you can expect the Service to resist such claims if they ever get before a Board of Arbitration. We would simply point out again, that the original grievance(s) do not ask for any of the above remedies, they simply request "As remedy, we seek this officer's immediate placement back on his original platoon". (See Tabs 3-7 of the Association's Book of Documents produced at the Mediation) The Service's response to this claim for damages is the same as set out above. The Service takes a dim view of the Association's attempt to raise new issues on the cusp of arbitrating these matters. It is especially galling considering we agreed to an extra step in the dispute resolution process (with its inherent costs), in good faith, only to receive your correspondence which attempts to change the essential character of grievances the parties have spent 1 months trying to resolve. Such behaviour does not auger well for the future relationship between the parties regarding dispute resolution. In a letter from Mr. Aveling to Mr. Stewart dated November 27,23 (Exhibit 2, Tab 9), Mr. Aveling advised that the Toronto Police Association would not be pursuing that part of their remedy that requested that Staff Sergeant Brookes be transferred out of 14 Division. Mr. Stewart's preliminary objection is that the requested remedy of compensation (including damages for mental anguish and punitive damages) contained in Mr. Weatherall's August 26, 23 letter (quote supra) is an improper attempt by the Association to broaden the grievance. He urges me to reject it because it was first raised (a) approximately ten (1) months after the grievances were filed; (b) after the conclusion

8 --'- of the statutory conciliation process and the voluntary Whittaker mediation process; and 8 (c) after my appointment as arbitrator. (6) The Submissions (a) The Employer - Mr. Stewart Mr. Stewart submitted that the original grievances addressed the issue of remedy sought: viz "... this officer's immediate placement back on his original platoon". To allow the August 26, 23 addition of a damages claim for the tort of mental suffering and/or further monetary relief, including a claim for punitive damages, he submits is untimely because (a) it is after the filing of the grievance; (b) it is after the statutory conciliation process; (c) it is after the Whittaker mediation process; and (d) it is after my appointment as arbitrator. Mr. Stewart submitted that the grievance process is intended to air - and to attempt to resolve - all differences. To allow such monetary claims after those grievance and settlement processes have been exhausted is, he submits, to undermine both the rationale of the process and the process itself. Mr. Stewart accepts that the Toronto Police Association is entitled to claim lost wages, or lost opportunity for wages, if it should be held that the movement of the Grievors violated the Collective Agreement, but he submits that a claim for tort or (~ punitive damages, at this stage, should be ruled out.

9 Mr. Stewart submitted that my jurisdiction, as arbitrator under the Collective 9 Agreement (Exhibit 3) relatesto "the grievance";"the grievance" is what is submitted to arbitration and, in each grievance before me (Exhibit 1), the only remedy requested was "immediate placement back to his original platoon". Mr. Stewart also submitted that the language of Article 15.6, by allowing me as arbitrator to relieve against time limits, evinces a common intention of the parties that this is the only issue on which an arbitrator is empowered to alter the strict language of the Collective Agreement. Finally, he submitted that the claims asserted in Mr. Weatherall's August 26 letter (supra) (essentially tort relief and punitive damages) are "of a nature which requires different evidence, analysis and argument"; since they are neither (a) inherent in the relief originally requested; nor (b) contemplated by the grievances, and (c) they are untimely made, the Association should therefore be precluded from pursuing them. In support of his submissions, Mr. Stewart filed a book of authorities containing twenty (2) cases, all of which I have read, some of which I shall comment on. (b) The Association - Mr. Aveling Mr. Aveling pointed out that during the Whittaker mediation, the parties were kept separate; therefore, there was no opportunity to explain the full remedy sought by the Association. Additionally, the full effect of what the Association alleges was an unreasonable, discriminatory and stigmatizing movement of the Grievors in breach of the Collective Agreement was only felt by the Grievors over time; in other words,

10 the manner of their removal from D platoon was hurtful and damaging at the time, 1 but the damage was ongoing, exacerbated over time, including by the Employer's refusal to settle the grievances by putting the Grievors back in D platoon. When the Toronto Police Association had a proper understanding of the effect of the transfers on the Grievors, they notified the Employer (August 26, 23), and have subsequently (November 27, 23 letter; Aveling to Stewart, Exhibit 2, Tab 9), and in advance of the first day of arbitration, provided particulars of the mental suffering in respect of each Grievor. The Association further submits that there have been ongoing efforts to settle the grievances, up to and including the first day of arbitration (December 1, 23), so that the damage claims made have neither precluded nor obviated settlement. Mr. Aveling submits that no prejudice has been demonstrated by the Employer. Nor, given the fact that these claims were advanced (on August 26, 23), three (3) months in advance of arbitration, has the Employer been taken by surprise at the hearing. (7) Decision on Preliminary Issue In the case law I start where most arbitrators start, with the well-known statement of the Ontario Court of Appeal in Blouin Drywall (1975) 57 D.L.R. (3d) 199 at 24 (per Brook G.A.): "... these cases should not be won or lost on the technicality of form, rather on the merits as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch...."

11 .-- d d.dd d This statement was adopted by the DivisionalCourt in Re Communications Union of Canada v. BellCanada(1976)72 D.L.R.(3d)632,wherethe Court held(at 639): 11 "... Nothing can be more calculated to exacerbate relations between employers and employees, than to be told that their differences, plainly designed to be finally settled by arbitration, as the statute requires, cannot be examined because of a defect in form...." Applying this principle, in Power Workers Union. Local 1 v. Ontario Hydro, (1996) 53 L.A.C. (4th) 163 at 17, Arbitrator Burkett wrote: "... grievances are not to be defeated by mere defects in form or by technical irregularities. However, having said this, it is not open to a party to unilaterally expand a grievance to encompass a matter not grieved...." Mr. Stewart submitted that the closest case factually (in fact lion all fours" he submitted) to the case before me is Arbitrator Devlin's decision in C.U.P.E. 44 v. Toronto District School Board (Johnson, 2, unreported). In that case, a caretaker at Eastern High School of Commerce was initially suspended, and subsequently transferred to another school, following a complaint of sexual harassment. At the arbitration, the Union alleged that the grievor's transfer was disciplinary and discriminatory, and that the grievor had sustained a loss of income as a result. The grievor also claimed significant stress resulting in absence from work and the use of sick leave credits. Employer counsel submitted that the grievance limited itself to repayment of lost income. Allegations that the grievor's transfer was disciplinary and discriminatory, and allegations concerning stress and consumption of sick leave credits, were said to be an untimely effort to expand the scope of the grievance. Consequently, Employer counsel-

12 -- submitted that the Union was precluded from advancing claims other than a claim to lost 12 income because of a reduction in overtime opportunities. Arbitrator Devlin concluded that "... the grievance as processed related to lost overtime opportunities, which is fundamentally different from a claim that the grievor suffered stress as a result of his transfer which caused him to use his sick leave credits which he now seeks to have reinstated. In my view, it would be inappropriate to permit the Union to raise issues which were not discussed by the par1ies during the grievance procedure." Mr. Stewart urges me to reach a similar conclusion. I cannot do so, for two (2) reasons: first, in the Toronto School Board case, Arbitrator Devlin states that during the grievance procedure the only claim for lost income was tied to the grievor's transfer from Eastern Commerce (page 8). This is not true in my case - or, at least, there is as yet no evidence that that is true. The grieving police officers initially asked for reassignment back to D platoon, 14 Division. When that did not occur, the Association asked for damages, including damages for mental suffering and punitive damages. And they did so three (3) months in advance of arbitration. Second, Arbitrator Devlin makes no reference to the Supreme Court of Canada's Weber decision, which I shall discuss later. From her Award, I cannot know whether it was cited to her or argued before her. For reasons I shall explain, I hold that Weber has dramatically enlarged the scope of relief available to grievors at arbitration. (J

13 claims for which the Collective Agreement does not provide remedial redress through the 14 arbitration process. Finally, and in the further alternative, he submits that separate grievances could and should have been filed by the grievors if and when these claims became evident. I reject all of these submissions which I consider questionable even in the pre- Weber era, but insupportable in the post-weber era. In the pre-weber era, I prefer and adopt the distinction suggested in Teamsters. Local 141v. Harry Woods Transport (1977) 15 L.A.C. 14 (Weatherill) between attempting to file what amounts to a new grievance versus putting forward an alternative or additional remedy. Having held that it would not be open to a party, under the guise of an "amendment", to substitute one grievance for another (page 4), Arbitrator Weatherill went on to allow "the assertion of a new basis for recovery" (page 5). At most, what the August 26,23 letter (quoted supra) does is to assert a new or alternative basis for recovery (damages) for the remedy (return to platoon) proposed in the grievance. Arbitrator Weatherill went on to say: "Nothing in the collective agreement, and in particular nothing in art. 7, which deals with the grievance procedure and arbitration, appears to limit the parties with respect to the grounds which may be advanced in favour of a grievance. The notice to arbitrate required by art. 7.5 (c) does not require any delineation of a particular issue or issues." I have examined Article 15 of the Uniform Collective Agreement (Exhibit 3) and reached the same conclusion.

14 u But it is the Supreme Court of Canada decision in Weber v. Ontario Hydro (1995) D.L.R (4th)583 that, in my judgement, is dispositive of the preliminary issue raised by Mr. Stewart. The facts of Weber are these. The grievor had been on an extended leave of absence and was being paid sick benefits stipulated under the collective agreement. As time passed the employer came to be suspicious that the grievor was malingering and engaged private investigators who, through surreptitious means gained entry to the grievor's home and obtained certain information which formed the basis for its decision to suspend him for abusing his sick leave benefits. On August 28, 1989 the grievor filed a grievance alleging that by hiring the private investigators the employer had violated the terms of the collective agreement. Among other things the grievance sought an order directing the employer to pay to the grievor and his family damages for mental anguish and suffering arising out of the surveillance. An arbitration hearing commencing on March 8, 199. However, on December 27, 1989, the grievor commenced an action in tort for breach of his Canadian Charter of Rights and Freedoms rights, claiming damages for the surveillance, alleging the torts of trespass, nuisance, deceit and invasion of privacy. On application by the employer the suit was dismissed on the grounds that the dispute arose out of the collective agreement thus depriving the court of jurisdiction [reported 38 C.C.E.L. 126 (Ont. Div. Ct.)]. An appeal to the Court of Appeal was dismissed [reported 98 D.L.R (4th)32], and, on further appeal to the Supreme Court of Canada, it was held that the court had no jurisdiction to entertain the action in tort. The Court found that, having regard to the provisions of the Ontario Labour " ("..) Relations Act, RS.O. 199, c. L.2, providing for the "final and binding settlement by arbitration... of all differences between the parties arising from the interpretation,

15 application and administration or alleged violation of the agreement" [so45(1)], it must be 16 found that labourtribunals (which includes boards of arbitration) have"exclusivejurisdiction... to deal with all disputes arising... from the collective agreement" [para. 67]. Accordingly, the question to ask was whether the dispute, viewed with an eye to its essential character, arises either expressly or inferentially out of the collective agreement; whether it fell within the "ambit of the collective agreement" [para. 51]. In my view, it is clear that the damages sought by the Grievors (both tortious Le. mental suffering; and punitive) arise from their transfer out of 14 Division, D platoon; that is, they arise out of the grieved actions of the Employer. The dispute between the parties over damages arises directly out of the alleged breach of the Collective Agreement. The Association does not seek, late in the day, to raise a different or collateral issue; rather, it put the Employer on notice that, having failed to accept the original remedy sought (Le. immediate placement back on D platoon) the Grievors will press for alternate and additional remedies (Le. damages for mental suffering; punitive damages). There is no doubt in my mind that these claims arise "in their essential character" out of the alleged breach of the Collective Agreement; nor is there doubt in my mind that if the Grievors attempted to pursue them through independent civil actions, the civil court would tell them that an arbitrator has "exclusive jurisdiction... to deal with all disputes arising... from the Collective Agreement", and that this is such a dispute. Mr. Stewart's submission that tort claims "are of a different nature" from the relief originally claimed in the grievance is insupportable in the face of the Supreme Court of Canada's explicit rejection of the "concurrent jurisdiction" model in Weber.

16 Similarly, to propose that the Grievors should have filed additional, separate 17 grievances as the mental suffering became more pronounced would be cumbersome, technical and serve no useful purpose; the Employer would still face such claims at arbitration, albeit in a proliferation of proceedings. As McLachlin C.J. wrote in Weber: "... what matters is not the legal characterization of the claim, but whether the facts of the dispute fall within the ambit of the collective agreement...". At paragraph 51 of Weber, McLachlin C.J. wrote: "... the task of... an arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference arises out of the collective agreement". Here the "dispute or difference" about, inter alia, mental suffering and punitive damages, arises out of the Employer's decision to Q move the Grievors out of 14 Division. The two tests adumbrated in Weber: (a) on or off the workplace; and (b) the time when the claim originated (paragraph 52) support this conclusion. In fact, this conclusion is clearer factually in this case than in Weber. The implications of the Weber decision are illustrated by: (a) U.S.W.A. Local 461 v. Hostess Frito Lay (22) 111 L.AC. (4th)76 Arbitrator Gorsky allowed the Union to add a claim for damages for mental distress, even though this claim was not mentioned in the grievance nordiscussed during the grievance process. (b) Teamsters Canada. Local 419 v. Tenaquip (22) 112 L.AC. (4th)6 The grievance alleged "management misconduct".

17 18 Only in opening statement did Union counsel put the Company on notice that the remedies sought included, inter alia, "damages in tort and damages in respect of the breaches of the collective agreement, including aggravated and punitive damages". The employer objected that this was an unfair broadening of the grievance. In dismissing this objection, Arbitration Newman held (at page 6): Since the Supreme Court of Canada ruling in Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583, it is clear that exclusive jurisdiction is conferred upon labour tribunals to deal with disputes or differences arising from the collective agreement. Tort actions asserted in the courts, on this analysis, cannot stand. If the grievor were to assert his allegations of harassment, assault and battery against the Supervisor, and vicariously, against the Company in a civil action, the defendants would likely be successful in having that action dismissed. Mr. Gleason asks, "Where would the grievor go to assert his allegations?" The Weber analysis is not intended to deprive an aggrieved party of his or her remedies, but to rationalize, clarify, and render efficient, the resolution of those disputes which arise from the collective agreement. The Court, in the same ruling, addressed the question of the range of remedies that fall within the arbitrator's jurisdiction. The labour relations arbitrator, it says, is empowered to implement labour remedies. The Court recognizes that "it might occur that a remedy is required which the arbitrator is not empowered to grant" (at p. 63, in the judgment of McLachlin J.). But, where the arbitrator's effort to define the essential character of the dispute results in the conclusion that it is one which arises from the interpretation,application, administrationor violation of the collective agreement, the arbitrator will be considered to be correct if she assumes jurisdiction. The Court continues: This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter. [At p. 63.] In dealing with the grievances as particularized, I consider it within the arbitrator's appropriate jurisdiction to fashion what the Supreme Court has termed, "an appropriate remedy". That, in my view, includes the authority to award monetary damages. (J Consistent with the conclusions pertaining to the scope of the grievance, I do not consider the Union's plea for a remedy in damages [page 68] to be limited by the

18 - _u _u I grievance as originally drafted. The scope of the grievance is not restricted by the work of the shop floor draftsman. Neither, in my view, is the remedy. 19 The Union, I conclude, is entitled to argue its claim that damages may constitute an appropriate element of remedy in this matter. (c) Just how far the Weber analysis goes is perhaps best illustrated by ATV.. Local 616 v. Transit Windsor (23) 114 L.AC. (4th)385. In that case, a claim for damages for defamation arising out of the grievor's termination was asserted (i) after twelve (12) days of hearings; (ii) after the release of an Award ordering the grievor's reinstatement; and (Hi)first asserted only shortly before the reconvening of the Board to deal with compensatory relief (an issue on which Arbitrator Brandt had remained seized). Despite the lateness with which the issue surfaced, Arbitrator Brandt held that the issue of damages for defamation arose "in its essential character" out of the collective agreement, and must therefore be dealt with by the arbitrator. Employer counsel before Arbitrator Brandt cited and relied on Arbitration Pamela Picher's decision in O.P.S.E.U. v. Seneca College (21) 12 L.AC. (4th)298. Before me, Mr. Stewart also cited and relied on this case. I agree with Arbitrator Brandt's observation that "... much of what is said by Arbitrator Picher makes eminent good sense". But I agree also with Arbitrator Brandt's conclusion that he saw no basis in the collective agreement before him to distinguish Weber (nor do I in Exhibit 4) and that he was "bound by Weber". So am I. Whether Weber has unwisely expanded the remedialjurisdiction of arbitrators into areas of the law (like defamation) where arbitrators possess no special expertise, ---

19 w.<>...iid, is a matter that may some day be curially revisited. Unless and until it is, arbitrators 2 are bound to give effect to the Supreme Court of Canada's Weber analysis and decision. I recognize that my ruling will prolong the hearing by likely requiring the calling of additional evidence, including, probably, medical evidence. This is unfortunate, but it is, I believe, a direct consequence of the broad remit to arbitrators that the Supreme Court mandated in its Weber decision. In this case, I note as well: (i) that the damages claim was asserted by the Association well in advance of the first day of arbitration; (ii) that no prejudice to the Employer was proven, nor did these claims take the Employer by surprise at arbitration; and (Hi)efforts to settle these grievances, which if litigated will take many days of hearings, have been ongoing. I have reviewed the Supreme Court of Canada's recent decision in O.P.S.E.U.. Local 324 v. Parry Sound (District) Social Services Administration, on which both parties filed written submissions; in my judgement this decision does not bear upon the issue I must decide and, therefore, I make no comment on it. dismissed. Accordingly, and for the reasons given, the Employer's preliminary objection is

20 ,. ~.~~ 21 Dated at the City of Londonthis(~~ay of -!INJU 11( I,24. UL{~ ~~---