Court of Appeal confirms s. 133 of the LRA does not allow OLRB to relieve against untimely referral of construction industry grievance to arbitration
By Kevin MacNeill
Two days ago, the Court of Appeal for Ontario released its decision in Greater Essex County District School Board, confirming the Divisional Court’s quashing a decision of the Ontario Labour Relations Board to hear an untimely construction industry grievance.
The proceedings originated in a construction industry grievance, which was filed in July 2004 by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552. The grievance alleged principally that the School Board employed non-union labour at two schools. However, the Union failed to refer the grievance to arbitration until more than four months beyond the 14 day mandatory time limit for doing so under the Collective Agreement.
Of particular note, an article of the Collective Agreement dealing with the grievance procedure provided that any grievance which had not been referred to arbitration within the 14 day time limit would be “deemed to have been settled satisfactorily by the parties”.
The OLRB found that the time limit was not mandatory and, even if it was, sections 48(16) and 133 of the Labour Relations Act, 1995 (LRA) permitted it to relieve against those limits and to hear the grievance.
Subsequently, the Court of Appeal wrote that although it did not adopt the entirety of the Divisional Court’s analysis of the situation, the OLRB’s decision could not stand, notably in respect of what the Court of Appeal saw as lying at the heart of the appeal, in particular the OLRB’s interpretation and application of s. 133 in the circumstances of the case.
Central to the Court of Appeal’s reasons was the notion that the OLRB could not hear the Union’s grievance because, at the time of the referral to arbitration, there was no longer any grievance: it had been deemed settled under the Collective Agreement. In the Court of Appeal’s words:
 To interpret in s. 133(1) the words “despite the grievance and arbitration provisions in the collective agreement” as somehow giving the Labour Board the authority to decide whether any matter is arbitrable, even a grievance that no longer exists, is to read that phrase in isolation without consideration of the function of s. 133 as a whole. Indeed, it was open to the Legislature to craft a very different s. 133(1), one that might have included language such as the following: “… may refer a grievance, including a grievance already adjudicated, settled, deemed to be settled, or abandoned.”
 The point I wish to emphasize is that s. 133 requires “a grievance”. It is only a grievance that animates the section and makes it meaningful. Section 133 provides a useful forum for the prompt resolution of construction industry grievances, a forum not available for grievances outside of the construction industry, but if there is no grievance, then the section is not engaged…
Also worthy of note, the Court of Appeal underlined that s. 48(16) of the LRA only “permits an arbitrator to extend the time for the taking of any step in the grievance procedure under a collective agreement, as opposed to any step in an arbitration procedure”.
In the result, the Court of Appeal determined that the OLRB’s decision to assume jurisdiction over the untimely referral to arbitration had to be set aside as unreasonable:
 In my view, therefore, the Vice-Chair’s interpretation falls outside the range of acceptable outcomes, because he concluded that he had the authority to refer to arbitration and to decide a grievance when there was in fact no grievance. His interpretation pays little or no heed to, trivializes, and renders inconsequential the mandatory timelines agreed upon by the parties to the Collective Agreement.
 The Labour Board has no inherent jurisdiction. Expert as it may be in the understanding and application of its empowering statute, it possesses only the powers delegated to it by its statute, and by the collective agreement. Thus, when the Labour Board sits as arbitrator under s. 133 it must respect, not ignore, the language of the collective agreement. Section 133 cannot reasonably be interpreted to mean that the OLRB may in its own unfettered discretion revive a dead grievance by extending the parties’ agreed-upon time limits for referral to arbitration.