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BETWEEN:

REPRESENTATIONS:

FOR THE ASSOCIATION:

FOR THE EMPLOYER:

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IN THE MATTER OF AN ARBITRATION

TORONTO POLICE ASSOCIATION(hereinafter called the Association)

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TORONTO POLICE SERVICES BOARD(hereinafter called the Employer)

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SIX GRIEVANCES

SOLE ARBITRATORPROFESSOR IAN A. HUNTER

Mr. Roger Aveling, Counsel

Mr. Bruce K. Stewart, Counsel

ARBITRATION HEARINGS WERE HELD IN TORONTO, ONTARIOON DECEMBER 10 AND DECEMBER 15, 2003

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DECISION ON PRELIMINARY ISSUE

(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, 2002 concerning personnel issues and

alleged morale problems in 14 Division.

As a result of this letter, Toronto Police Internal Affairs began an investigation in

May, 2002. Over the next four (4) months, approximately ninety (90) officers (including all

five (5) Grievors) and civilians/employees were interviewed by the investigator (Inspector

Qualtrough) or his assistants.

On September 23,2002 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."

The Report, and its conclusion, will no doubt figure prominently in my eventual

decision. It is sufficient, for now, to note that each Grievorwas either (a) transferred or (b)

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reassigned out of D platoon, based on the Qualtrough investigation and Report. Those

"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):

Please be advised that the above-noted member and the Association are grievinghis recent reassignment. On the basis of what the TPA currently understands tohave happened, we are contending that the direction given to him that he was tomove to another platoon was discriminatory, without reasonable cause, and an actof discipline, all of which is contrary to the management's rights clause of theuniform collective agreement. We reserve the right to allege other violations of thecollective agreement if they subsequently become apparent. As remedy, we seekthis 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 2003.

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(3) The Collective Agreement (Exhibit 3)

The relevant provision of the Collective Agreement is as follows.

ARTICLE 3 - MANAGEMENT RIGHTS

3.01 The Association and its members recognize and acknowledge that, subjectto the provisions of the Police ServicesAct and the Regulations thereto, it isthe exclusive function of the Board to:

(a)

(i)

(ii)

maintain order, discipline and efficiency;

discharge, direct, classify, transfer, promote, demote or suspend, orotherwise discipline any member;

(iii) hire.

(b) If a member claims that the Board has exercised any of the functionsoutlined in paragraph (a) (ii) in a discriminatorymanner or without reasonablecause, then such a claim may be the subject of a grievance under theprovisions of the grievance procedure outlined in this Collective Agreementor dealt with under procedureswithin the exclusivejurisdiction of the OntarioCivilian Commission on PoliceServices,as prescribedbythe Police ServicesAct.

The Board agrees that it will not exercise any of the functions set out inthis Article in a manner inconsistent with the provisions of this CollectiveAgreement or the PoliceServicesAct of Ontarioand the Regulations thereto.

(c)

(4) My Appointment as Arbitrator

On July 21,20031 received a fax from Mr. RogerAveling requesting me, on behalf

of both parties, to act as arbitrator.

I replied on July 24, 2003 accepting the appointment and proposing hearing dates.

On August 27, 2003 I wrote to both counsel setting out December 2003 dates that had

been agreed to.

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The arbitration commenced on December 10, 2003 at which time I heard lengthy

and helpful opening statements from both counsel. Mr. Stewart advised that he would be

making a preliminary objection on the next date (December 15, 2003).

On December 15, 2003 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 2003, 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:

Gino Costabile (3457) - Transfer Grievance;Peter Broske (86775), Victor Colmanero (3004), Cosmo Crisanti (3094),Tony Pignatelli (4453) - Reassignment Grievances

So that there is no misunderstanding, we wish to clarify our position with regard tothe remedy that will be sought at arbitration. In addition to each of the Grievorsbeing ordered back to their former platoons and assignments, the Association andthe Grievors are also seeking the following:

Re:

1.

2.

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 beingwrongly stigmatized as troublemakers who conspired to undermine S/Sgt.Brookes;

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such further or other relief as may be appropriate, including punitivedamages.

Yours sincerely,

3.

TORONTO POLICE ASSOCIATION

Martin WeatherallDirector of Legal Services

On August 27,2003 Ms. Ciani wrote to Mr. Weatherall, as follows (Exhibit 2, Tab

8):

Gino Costa~) -Transfer Grievance: Peter Broske (86775).Victor Co!manero (3004). Cosmo Crisanti (~). Tony Pignatelli(4453) -Reassignment Grievances

Please accept this letter as response to your correspondence of August 26, 2003regarding the above noted grievances.

Re:

The Service would like to reiterate its consistent response to the ReassignmentGrievances of Broske, Colmanero, Cristani and Pignatelli. The Service maintainsthat these matters are not arbitrable as reassignmentsare not issues that fall withinthe ambit of the collective agreement. The fact that we agreed to attempt aresolution of these matters in concert with PC Costabile's grievance was withoutprejudice to the Service's unwaveringposition on the reassignment grievances, setout above. -

Your letter raises new concerns and places new issues "in dispute" that were notraised formally by the Association prior to yesterday's mediation attempt. I wouldnote that mediation is not a formal step in the dispute resolution process betweenthe parties. We agreed to your request for such a step, in good faith, with theunderstanding that the parties would attempt to resolve the grievances, bydiscussing the issues we agreed were in dispute throughout the grievance andconciliation processes. For the Association to raise new issues at this point in theprocess is both unfair and prejudicial to the Service and, our continuing collectivebargaining relationship. As such, if these matters are referred to arbitration, theService will make strenuousarguments that theAssociation should not be permittedto change the essential nature of the grievances at this late juncture, and that thegrievances should be adjudicated and resolved based on the plain language putforward by the Association in the actual grievance letters.

I will now turn to each of the "new" remedies you wish to "clarify" in your latestcorrespondence. For ease of reference, I will respond to each "remedy" with acorresponding numbered paragraph.

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1. The Service/Board will vigorously object to the Association raising thetransfer of S. Sgt. Brooks out of 14 Division. The assignment of staff lieswithin the exclusive jurisdiction of the Board and the transfer of a supervisor,who is not involvedas a party to the grievance, is not something an arbitratoreven has jurisdiction to rule on.

The Service agrees that an order for lost wages is something that anarbitrator hasjurisdiction to award, to make the member whole. Your currentclaim for "Tort" damages, however, is something the Association did notraise at any point throughout the dispute resolution process, includingyesterday's mediation attempt. Your letter of yesterday was literally the firsttime we have heard about these new heads of damages and as such, youcan expect the Service to resist such claims if they ever get before a Boardof 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 theMediation).

2.

3. The Service's response to this claim for damages is the same as set outabove.

The Service takes a dim view of the Association's attempt to raise new issues onthe cusp of arbitrating these matters. It is especially galling considering we agreedto an extra step in the dispute resolution process (with its inherent costs), in goodfaith, only to receive your correspondence which attempts to change the essentialcharacter of grievances the parties have spent 10 months trying to resolve. Suchbehaviour does not auger well for the future relationship between the partiesregarding dispute resolution.

In a letter from Mr. Aveling to Mr. Stewart dated November 27,2003 (Exhibit 2, Tab

9), Mr. Aveling advised that the Toronto PoliceAssociation 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, 2003 letter (quote supra) is an improper attempt by the

Association to broaden the grievance. He urges me to reject it because it was first raised0

(a) approximately ten (10) months after the grievances were filed; (b) after the conclusion

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of the statutory conciliation process and the voluntary Whittaker mediation process; and

(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, 2003 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.

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Mr. Stewart submitted that my jurisdiction, as arbitrator under the Collective

Agreement (Exhibit 3) relatesto "thegrievance"; "thegrievance" iswhat 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 15.06, 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 inthe

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 (20) cases, all of which I have read, some of which I shall comment on.

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 stigmatizingmovement of the Grievors in breach

of the Collective Agreement was only felt by the Grievors over time; in other words,

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the manner of their removal from D platoon was hurtful and damaging at the time,

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 PoliceAssociation had a proper understanding of the effect of the transfers

on the Grievors, they notified the Employer (August 26, 2003), and have

subsequently (November 27, 2003 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 10, 2003), 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, 2003), 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 204 (per

Brook G.A.):

"... these cases should not be won or lost on the technicality of form, rather on themerits as provided in the contract and so the dispute may be finally and fairlyresolved with simplicity and dispatch. ..."

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This statement was adopted by the DivisionalCourt in Re Communications Union

of Canada v. BellCanada(1976)72 D.L.R.(3d)632,wherethe Courtheld(at 639):

"... Nothing can be more calculated to exacerbate relations between employers andemployees, than to be told that their differences, plainly designed to be finallysettled by arbitration, as the statute requires, cannot be examined because of adefect in form. ..."

Applying this principle, in Power Workers Union. Local 1000 v. Ontario Hydro,

(1996) 53 L.A.C. (4th) 163 at 170, Arbitrator Burkett wrote:

"... grievances are not to be defeated by mere defects in form or by technicalirregularities. However, having said this, it is not open to a party to unilaterallyexpand 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 isArbitrator Devlin'sdecision in C.U.P.E. 4400 v. Toronto

District School Board (Johnson, 2000, 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-

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submitted that the Union was precluded from advancing claims other than a claim to lost

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 initiallyasked 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 herAward, 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.

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claims for which the Collective Agreement does not provide remedial redress through the

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. HarryWoods Transport (1977) 15L.A.C. 140 (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 26,2003 letter (quoted supra) does is to assert a new or

alternative basis for recovery (damages) for the remedy (return to 0 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.

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But it is the Supreme Court of Canada decision in Weber v. Ontario Hydro (1995)

125 D.L.R (4th)583 that, in myjudgement, 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,

1990. 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 courtof 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. 1990, c. L.2, providing for the "final and binding settlement by

arbitration ... of all differences between the parties arising from the interpretation,

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application and administration or alleged violation of the agreement" [so45(1)], it must be

found that labourtribunals (which includesboards 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.

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Similarly, to propose that the Grievors should have filed additional, separate

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

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 4610 v. Hostess Frito Lay (2002) 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 (2002) 112 L.AC. (4th)60

The grievance alleged "management misconduct".

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0Only 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), 125D.L.R. (4th)583, it is clear that exclusive jurisdiction is conferred upon labourtribunals to deal with disputes or differences arising from the collective agreement.Tort actions asserted in the courts, on this analysis, cannot stand. If the grievorwere to assert his allegations of harassment, assault and battery against theSupervisor, and vicariously, against the Company in a civil action, the defendantswould likely be successful in having that action dismissed. Mr. Gleason asks,"Where would the grievor go to assert his allegations?" The Weber analysis is notintended 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 thecollective agreement.

The Court, in the same ruling, addressed the question of the range of remedies thatfall within the arbitrator's jurisdiction. The labour relations arbitrator, it says, isempowered to implement labour remedies. The Court recognizes that "it mightoccur that a remedy is required which the arbitrator is not empowered to grant" (atp. 603, in the judgment of McLachlin J.). But, where the arbitrator's effort to definethe essential character of the dispute results in the conclusion that it is one whicharises from the interpretation,application, administrationor violation of the collectiveagreement, the arbitrator will be considered to be correct if she assumesjurisdiction. 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 collectiveagreement and fashioning an appropriate remedy, the arbitrator will haveregard to whether the breach of the collective agreement also constitutes abreach of a common law duty, or of the Charter. [At p. 603.]

In dealing with the grievances as particularized, I consider it within the arbitrator'sappropriate jurisdiction to fashion what the Supreme Court has termed, "anappropriate remedy". That, in my view, includes the authority to award monetarydamages.

(JConsistent with the conclusions pertaining to the scope of the grievance, I do notconsider the Union's plea for a remedy in damages [page 68] to be limited by the

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grievance as originally drafted. The scope of the grievance is not restricted by thework of the shop floor draftsman. Neither, in my view, is the remedy.

The Union, I conclude, is entitled to argue its claim that damages may constitute anappropriate 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 (2003) 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 (2001) 102 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,

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is a matter that may some day be curially revisited. Unless and until it is, arbitrators

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 litigatedwill 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.

Accordingly, and for the reasons given, the Employer's preliminary objection is

dismissed.

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Dated at the Cityof Londonthis(~~ay of -!INJU 11( I ,2004.

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