FPSLREB Decisions

I. Application before the Chairperson and individual grievance referred to adjudication

1 On May 7, 2009, H. Ross Watson (“the grievor”) filed a grievance against the Department of National Defence (“the department”). He alleged in his grievance that the department failed to implement an agreement (“the agreement”) that would have moved the electrical systems technicians (classified EEW-11) from pay group 11 to pay group 12 (“the pay issue”). For corrective action, the grievor asked that the agreement be implemented effective January 1, 2007 and that all employees in that classification be paid accordingly.

2 Pursuant to section 45 of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, the Chairperson has authorized me, in my capacity as Vice-Chairperson, to exercise any of his powers or to perform any of his functions under paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”) to hear and decide any matter relating to extensions of time.

II. Summary of the evidence

3 It is not in dispute that the relevant collective agreement is for the Ship Repair (East) Group between the Treasury Board (“the employer”) and the Federal Government Dockyard Trades and Labour Council (East) (“the Council” or “the bargaining agent”) that expired on December 31, 2009 (“the collective agreement”).

4 In its replies at the different levels of the grievance process and in its letter dated February 25, 2010, the employer argued that the grievance was untimely since it was submitted after the 25-day notice period stipulated in the collective agreement. Moreover, the employer submitted that I did not have jurisdiction to hear the grievance since the agreement was never included in an arbitral award or the collective agreement. The employer’s representative maintained that this case is about compensation, which can be resolved only at the bargaining table or through an arbitral award. According to the employer’s representative, the employer never agreed to the proposal that the bargaining agent characterized as an agreement. Therefore, it was never included in an arbitral award or collective agreement. As a result, I have no jurisdiction under paragraph 209(1)(a) of the Act to hear this matter. Counsel for the employer reiterated those objections at the beginning of the hearing.

5 In his letter dated March 31, 2010, counsel for the grievor replied that the grievance was timely since the time limit was suspended while the parties were in informal mediation. Counsel for the grievor maintained that, moreover, it is a continuing grievance. Alternatively, counsel for the grievor argued that, were I to find the grievance untimely or not continuing, the Public Service Labour Relations Board (“the Board”) should exercise its discretion under paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”) to extend the time limit to file the grievance. Counsel for the grievor also argued that I have jurisdiction to hear this matter since the grievance is about pay provided for in the collective agreement. Furthermore, counsel for the grievor maintained that the employer and the bargaining agent reached an agreement on the pay issue, on which the bargaining agent has relied to its detriment. Therefore, the employer should be estopped from objecting to my jurisdiction. Counsel for the grievor reiterated those arguments at the outset of the hearing.

A. For the grievor

6 The grievor, who has retired, did not testify.

7 Lorne Brown was the only witness for the grievor. Mr. Brown has been an employee of the department for 31 years and has been President of the Council since 2006. In cross-examination, Mr. Brown explained that his involvement in collective bargaining, before he became president, was as a note taker at some Council meetings. He explained that the Council is composed of 10 local unions with approximately 820 employees. One of the local unions is the Electrical Systems Workers, of which the grievor was the president. Mr. Brown testified that the grievor had been involved in previous rounds of collective bargaining as president of that local. Within the Electrical Systems Workers local, at the time of the grievance, seven employees were classified EEW-11 electrical systems technicians (“the technicians”). The grievor was one of those seven employees. Mr. Brown explained that the duties of a technician are essentially to work on systems supplying power for ships and submarines.

8 Mr. Brown testified that, in April 2006, when he became Council president, an issue arose about the effective date of an arbitral award that had led to the Council filing an unfair labour practice complaint. Mr. Brown indicated that he called Marc Thibodeau, who was the employer’s senior negotiator, and that they resolved the matter. Mr. Brown indicated that nothing was done in writing but that he took the employer’s word and the matter was settled. He withdrew the unfair labour practice complaint. Mr. Brown explained that, as a result, a collective agreement was signed in June 2006; it expired six months later, in December 2006.

9 Mr. Brown testified that the pay issue has been long-standing. Mr. Brown indicated that although the electronic systems technicians moved from pay group 11 to pay group 12 in 1998 and although the mechanical systems technicians also moved from pay group 11 to pay group 12 in 2000, the electrical system technicians remained at pay group 11. Mr. Brown testified that the Council has been trying ever since to resolve the pay issue and have the technicians paid at pay group 12, like all the other trades.

10 Mr. Brown indicated that in late 2006 the negotiations between the parties were moving slowly. In cross-examination, Mr. Brown admitted that in late November 2006 the Council sent its proposals to the employer and that they did not include the pay issue. Mr. Brown agreed that by October 31, 2007, the parties had reached an impasse, that the Council asked for the establishment of an arbitration board, and that the pay issue was not included in the terms of reference of the arbitration board. However, Mr. Brown testified that, at the same time, to get things moving, the parties decided in December 2007 to refer some of the outstanding pay items to the “mutual gains process,” including the proposal to have the technicians paid at pay group 12 (Exhibit 1, tab 1). Mr. Brown explained that the purpose of the mutual gains process is to present unresolved issues to management in the hope that they will be resolved. If so, then there is no need to address them at the collective bargaining table.

11 Mr. Brown explained that mutual gains sessions are normally attended by local management and representatives of the Council, who make presentations on outstanding issues in, the hope that they will be resolved.

12 In his testimony, Mr. Brown explained that Mr. Thibodeau indicated in late December 2007 that the issues referred to in Exhibit E-1, tabs 1 and 3, were collective bargaining matters and that, for that reason, Mr. Thibodeau asked to be present at the mutual gains session that was to be scheduled. Mr. Brown testified that Roger Barakett, Production Manager and part of local management, asked Mr. Thibodeau about whether local management should schedule the mutual gains session since the items to be discussed were collective bargaining matters. Mr. Brown testified that local management and Mr. Thibodeau decided to go ahead with the mutual gains session and agreed to keep all items, including the pay issue, on the agenda (Exhibit 1, tab 3).

13 Mr. Brown testified that, although the mutual gains session was initially scheduled for January 24, 2008, it was rescheduled three times to accommodate Mr. Thibodeau. Finally, it was agreed that the one day mutual gains session would take place on February 12, 2008 (Exhibit 1, tabs 5 to 8).

14 Mr. Brown testified that he was present at the February 12, 2008 mutual gains session. He was accompanied on the bargaining agent side by Mr. Cashman, Vice‑President for the Council. Moreover, since there were issues to discuss dealing with pay proposals, representatives from all the relevant locals of the Council attended the meeting and made presentations on the issue within their respective domains. Mr. Brown explained that, for instance, the grievor made the presentation on behalf of the technicians on the pay issue. Mr. Brown also explained that, on the management side, Mr. Thibodeau, representing the employer, Lieutenant Commander Cann, Mr. Barakett, Mr. Dugie and a representative from labour relations were all present.

15 Mr. Brown testified that management made no decisions at the session. The understanding was that management was to review the presentations and return with decisions for each issue presented.

16 Mr. Brown testified that Mr. Thibodeau did not state at the mutual gains meeting that the employer had to provide its approval to the issues presented by the Council, including the pay issue.

17 Mr. Brown testified that on April 18, 2008, Mr. Barakett sent to the other management representatives, including Mr. Thibodeau, management’s proposed reply to the Council on each issue raised at the mutual gains session (Exhibit 1, tab 9).

18 In his testimony, Mr. Brown noted that the pay issue is specifically covered in Exhibit 1, tab 9, and that in its summary management concluded the following:

Management recognizes that EEW-11 Electrical Systems Technicians provide comparable value to the unit as electronics (EEW-11) and mechanical systems (INM-11) technicians. They work closely in a team approach with these other groups. Management supports this proposal.

19 Mr. Brown indicated that that proposal was the only one that had management’s support, and he reiterated that both electronics systems technicians and mechanical systems technicians are paid at pay group 12.

20 Mr. Brown indicated that, when he was informed of management’s support for the pay issue proposal, he spoke with Mr. Barakett, who was to contact Mr. Thibodeau to discuss how to implement management’s decision.

21 Mr. Brown testified that, at that point in April 2008, he received indications from both Mr. Barakett and Mr. Thibodeau that local management and the employer wanted to move ahead with the proposal and implement it as demonstrated in Mr. Barakett’s and Thibodeau’s emails (Exhibit E 1, tabs 9 and 10). Moreover, Mr. Brown testified that the employer’s decision to move forward with implementing the new pay rate for the technicians was confirmed in an email from Commanding Officer Hainse, who asked that action be taken on the pay issue (Exhibit 1, tab 11). In cross‑examination, Mr. Brown admitted that there was no sign off on the pay issue but added that, in the past, some agreements were reached on some issues without a sign off and that those agreements were nevertheless implemented by the employer. Mr. Brown testified that, for him, at that point, an agreement between the parties was in place that the technicians would be paid at pay group 12.

22 Mr. Brown indicated that in April and May 2008 the parties were in the process of going to arbitration on the outstanding issues that arose from the collective bargaining process. Mr. Brown testified that, since the parties had the agreement about the new pay rate for the technicians, management and the employer indicated that they wanted to go forward with the proposal and were contemplating ways to come up with the money in the context of the upcoming arbitration (Exhibit 1, tab 12). The Council did not include the pay issue in the terms of reference of the arbitration board (Exhibit 1, tab 9 to 11).

23 Mr. Brown stated that the arbitration board’s hearing took place May 3 to 5, 2008, and that no reference was made to the pay issue for the reasons stated earlier in this decision (Exhibit 1, tab 13).

24 Mr. Brown indicated that, following the release of the arbitral award on May 9, 2008, he again raised the issue on how the agreement would be implemented with local management and the employer on May 20, 2008 (Exhibit 1, tab 14).

25 Mr. Brown explained that the practice is that, once an arbitral award is issued, it is then incorporated into a collective agreement. He testified that the employer prepared the draft collective agreement.

26 Mr. Brown indicated that in late May 2008 he received a first draft of the collective agreement from Mr. Thibodeau. Mr. Brown indicated that, although he noticed on the first draft that some other items agreed to by the parties were not included, he did not notice that the draft collective agreement did not include the agreement to move the technicians to pay group 12.

27 Mr. Brown indicated that he noticed that the agreement was missing when he received the second draft of the collective agreement. He testified that he emailed local management and the employer, reminding them of the agreement reached at the mutual gains session (Exhibit 1, tabs 14 and 15). Mr. Brown also mentioned that he then talked to Mr. Thibodeau about the missing reference and that Mr. Thibodeau told him “We will take care of it.”

28 In his testimony, Mr. Brown also referred to emails exchanged on May 21, 2008 between Ms. Hoffart from the department’s human resources branch and Mr. Thibodeau, in which it is indicated that management approved the change from pay group 11 to 12 for the technicians, and it is mentioned that the issue was not classification but only of a change to the pay group to which the technicians were allocated (Exhibit 1, tabs 16 and 17).

29 Mr. Brown testified that on June 16, 2008, the date of the signing of the collective agreement (Exhibit 1, tab 18), the agreement was still not part of it. Mr. Brown indicated that Mr. Thibodeau’s answer to the missing agreement text was that “[w]e will find a way to fix it in the next round.” Mr. Brown indicated that he took the employer at its word and that he signed the collective agreement despite the fact that the reference to the new pay rate was still not included.

30 Mr. Brown indicated that, once the collective agreement was signed, the option being pursued for local management to implement the agreement was, on July 3, 2008, to provide them acting pay at pay group 12 (Exhibit 1, tab 19).

31 Mr. Brown stated that he became aware, after the collective agreement had been signed and from speaking with Mr. Barakett, that Mr. Thibodeau was no longer prepared to pay the technicians at pay group 12 (Exhibit 1, tab 19). Mr. Brown testified that he was shocked at the news, after having worked closely and having taken the employer at its word. Mr. Brown admitted in cross-examination that by August 29, 2008 he knew that Mr. Thibodeau would not pay the technicians at pay group 12.

32 Mr. Brown indicated that, despite everything, he continued to work with local management, to find ways to resolve the pay issue. Mr. Brown testified that, from August to November 2008, emails were exchanged with local management, with the employer’s knowledge, to have the technicians receive acting pay for the term of the collective agreement and to address the issue permanently at the next round of collective bargaining (Exhibits G‑1 and G-2).

33 Mr. Brown indicated that, on December 10, 2008, he sent another email to local management and to the employer, with the intent of resolving the matter. Mr. Brown testified that the employer responded that the pay issue represented a change to the pay grid that had to be dealt with at the bargaining table (Exhibit G-3). Mr. Brown testified that, despite that response, local management was still looking for a way to implement the agreement.

34 Mr. Brown testified that, on January 22, 2009, he wrote a letter to Mr. Thibodeau in which he reviewed the pay issue and asked the employer to provide some direction to the department, which had indicated that it had no way of implementing the agreement without direction from the employer (Exhibit 1, tab 20).

35 Mr. Brown testified that, on February 6, 2009, he received a response to his letter from Mr. Thibodeau. In it, Mr. Thibodeau responded that the matter of whether the technicians should be paid at pay group 12 was a compensation issue that had to be dealt with at the bargaining table. Mr. Thibodeau also indicated that, although the matter in dispute was discussed at the mutual gains session and that local management was supportive, it was never included in the terms of reference of the arbitration board in October 31, 2007 and therefore was never included in the arbitral award (Exhibit 1, tab 21).

36 As for why the grievor waited until May 7, 2009 to grieve after being informed of Mr. Thibodeau’s letter of February 6, 2009, Mr. Brown explained that, despite Mr. Thibodeau’s letter, he was still trying to solve the issue. Mr. Brown testified that he approached Hélène Laurendeau, the employer’s assistant deputy minister (ADM), in the first week of March 2009 to remedy the situation. Since he did not receive an answer from her, the grievor filed his grievance on May 7, 2009 (Exhibit 1, tab 22).

37 Mr. Brown indicated that he approached the ADM again in June 2009. Since he had not heard back from her by July 20, 2009, he sent her an email, asking for an update. On July 31, 2009, Ms. Laurendeau responded that the issue needed to be brought to the bargaining table (Exhibit 1, tab 23).

38 In conclusion, Mr. Brown indicated that, had he been told in February 2008 that the employer would not implement the new pay rate for the technicians, he would have sent the issue to the arbitration board for determination, like all the other pay proposals, and that he would not have signed the collective agreement. Mr. Brown also stated that at the time of the hearing, the technicians were still not being paid at pay group 12.

39 Finally, Mr. Brown admitted in cross-examination that the Council did not file an unfair labour practice complaint against the employer because, once he became president of the Council, he had to deal with one such complaint, and he had not been prepared to deal with another one.

B. For the employer

40 Mr. Barakett testified for the employer. He has been the production manager with the department since 2007. He reports to the commanding officer. Mr. Barakett explained that the work for which he is responsible mainly involves maintaining and repairing ships and submarines. Mr. Barakett explained that he manages about 1000 employees, which includes the employees and the grievor represented by the Council. In cross-examination, Mr. Barakett indicated that he and Mr. Brown have a very good working relationship, and he admitted that the pay issue has been ongoing for a long time and was a sore point for the technicians since they were not paid at the same level as the electronic and the mechanical systems technicians.

41 Mr. Barakett explained that the mutual gains session was essentially a meeting at which the bargaining agent and management were to discuss issues with the hope of reaching an agreement. He explained that, essentially, those sessions are meant to take some issues off the table so that the collective bargaining process can be accelerated. He indicated that, following directions from the employer, monetary issues were not to be dealt with at such sessions. Mr. Barakett explained that the mutual gains sessions were not to deal with issues that the employer needed to handle. Mr. Barakett indicated that the mutual gains session of February 2008 was his first such session.

42 Mr. Barakett indicated that, beginning in December 2007, Mr. Thibodeau expressed concerns and wanted to know what could be discussed at a mutual gains session. He communicated to Mr. Thibodeau the list of issues that the Council wanted to discuss (Exhibit 1, tab 1). In cross-examination, Mr. Barakett admitted that Mr. Thibodeau insisted on being present at the February 2008 mutual gains session and despite the fact that some of the issues to be discussed were to be collective bargaining issues, Mr. Thibodeau never told him to cancel the session.

43 Mr. Barakett testified that he spoke with Mr. Thibodeau numerous times before the mutual gains session and that Mr. Thibodeau insisted that he had to be in the room if the issues listed in Exhibit 1, tab 1, were to be discussed with the Council.

44 Mr. Barakett indicated that presentations were made at the mutual gains session in the presence of Mr. Thibodeau on the issues referred to in Exhibit 1, tab 1. Mr. Barakett explained that, after the day-long session, management stayed to discuss the presentations made by the Council representatives.

45 Mr. Barakett explained that it took some time after the mutual gains sessions to come up with the proposed reply of April 18, 2008, since some of the issues needed clarification (Exhibit 1, tab 10). Mr. Barakett explained that, after the mutual gains session, he had group discussions with the management team via email, in which each member of the management team had a chance to comment on the merits of each proposal presented, including the technicians pay group proposal. Mr. Barakett explained that each proposal was assessed against a set of criteria. He testified that Mr. Thibodeau was not part of that process. Mr. Barakett indicated that, once he had reviewed the proposals included in Exhibit 1, tab 9, and had received comments from local management, he sent it via email to local management and to Mr. Thibodeau for final comments. Mr. Barakett stated that that was the last check before it was sent to the Council. In cross-examination, Mr. Barakett admitted that, when Mr. Thibodeau received the email with all the proposals and recommendations, Mr. Thibodeau never said that he disagreed with local management’s decision to support the technicians’ pay proposal nor did he ask that Exhibit 1, tab 9, pages 5 and 6, which is management’s positive position on the pay issue, not be shared with the Council. Mr. Barakett also agreed in cross-examination that he expected that the Council would be satisfied with the issue as reported in Exhibit 1, tab 9, pages 5 and 6.

46 Mr. Barakett testified that he never told Mr. Brown that Exhibit 1, tab 9, pages 5 and 6, meant that the technicians’ pay group proposal was a done deal and that it would be included in the collective agreement.

47 Mr. Barakett testified that, on April 22, 2008, he emailed Messrs. Dugie, Hainse, Hartigan, Cann and Thibodeau. In it, he responded to Mr. Thibodeau’s query about the way forward with the technicians’ situation. Mr. Thibodeau’s email reads as follows:

From: Thibodeau, Marc
Sent: april 21, 2008 …

…

Subject: RE: Mutual gain reply

Roger:

In your view, what is the way forward on the EEW 11?

…

Marc Thibodeau

…

48 In his email of April 22, 2008, Mr. Barakett explained that he discussed his understanding that the money to implement the agreement would come from any pay increase awarded at arbitration. He closes by saying that if he has misunderstood “we have time to discuss before the adjudication weekend.” (Exhibit 1, tab 12)

49 In cross-examination, Mr. Barakett admitted that Mr. Thibodeau, after that April 22, 2008 email, never told him that he did not agree with the technicians’ pay proposal. Mr. Barakett also agreed that at no time before the arbitral award was issued did Mr. Thibodeau, or anyone else, tell him that there was no agreement on that proposal. Moreover, Mr. Barakett agreed that, at that point, it is understandable that the Council thought that the issue was settled and that there was an agreement to have the technicians paid at pay group 12.

50 Mr. Barakett indicated that he did not participate in the arbitration board hearing. He explained that, in collective bargaining, if an agreement is reached on an issue, the parties sign off on that issue.

51 Mr. Barakett testified that, after the issuance of the arbitration board’s decision in May 2008, he continued to talk to Mr. Thibodeau about whether something could be done to solve the pay issue since Mr. Thibodeau knew that local management was supportive of the Council’s proposal (Exhibit 1, tab 15). Again in cross-examination, Mr. Barakett agreed that, even after the arbitration board’s decision had been issued no one said that there was no agreement on paying the technicians at pay group 12. Again, Mr. Barakett indicated that he understood why in July 2008 the Council still thought that an agreement existed to pay the technicians at pay group 12.

52 Mr. Barakett indicated that he raised the issue of paying the technicians acting pay until the next round of bargaining with Mr. Thibodeau in an email on July 3, 2008 (Exhibit 1, tab 19) but that Mr. Thibodeau replied that there was “no appetite at our end to look into changes in the [collective agreement] other than the arbitral award.” Mr. Barakett testified that the employer did not want to hear about paying the technicians acting pay. In cross‑examination, Mr. Barakett agreed that the email of July 3, 2008, which was not copied to the Council, was the first time anyone spoke against the proposal to pay the technicians at pay group 12. Mr. Barakett also indicated that, although he could not recall when he informed the Council about the content of the July 3, 2008 email, he would not have hidden that information from Mr. Brown.

53 Mr. Barakett testified that, after Mr. Thibodeau rejected the proposal, he and Mr. Brown continued to try to remedy the issue. Mr. Barakett indicated that he wanted to implement what the Council had understood. He indicated that, in November 2008, he approached Mr. Thibodeau with the idea of making the technicians acting electronic technicians at pay group 12 (Exhibits G-2 and G‑3). Mr. Barakett stated that Mr. Thibodeau’s answer was that he did not want to be part of it.

54 Finally, Mr. Barakett indicated that on May 7, 2009 the grievor filed a grievance. He noted that the parties did not resort to alternative dispute resolution (ADR) for the grievance and that they did not agree to suspend the time limit for filing grievances (Exhibit 1, tabs 24 to 26).

55 Mr. Thibodeau also testified for the employer. He has been Director General of Labour Relations at the Canada Border Services Agency since 2011. Before that, he was Director, Compensation and Collective Bargaining, at the employer and, as such, the negotiators reported to him.

56 Mr. Thibodeau explained that a round of collective bargaining between the employer and the Council began in November 2006, when the parties exchanged proposals. He stated that the Council’s proposals did not include a reference to paying the technicians at pay group 12 instead of at pay group 11. Nor was such a proposal included in the terms of reference when the Council filed for arbitration towards the end of 2007.

57 Mr. Thibodeau indicated that he became involved in the mutual gains session first through the email he received from Mr. Barakett on December 18, 2007 (Exhibit 1, tab 1). Mr. Thibodeau explained that, through his response to Mr. Barakett, he wanted to familiarize himself with the issues and to determine whether they involved collective bargaining (Exhibit 1, tabs 2 to 4).

58 In cross-examination, Mr. Thibodeau indicated that he understood that, once told about the issues raised in Exhibit 1, tabs 3, 4 and 9, including the one about the technicians, he thought that they were for future rounds of collective bargaining but that he did not recall telling local management or the Council what he thought. Mr. Thibodeau admitted that he never asked local management to stop the discussions with the Council on the pay issue. Mr. Thibodeau indicated that, for him, the mutual gains session was a way to get information about issues that would be useful for the next round of collective bargaining.

59 In response to counsel for the grievor, Mr. Thibodeau indicated that, although he did not ask Mr. Barakett to stop discussing the pay issue with the Council (Exhibit 1, tab 3), he explained in a conversation with Mr. Barakett the difference between mutual gains and collective bargaining, which is that mutual gain sessions are the first step to concluding a collective agreement, but any conclusions from a session are not to be included in the eventual collective agreement (Exhibit 1, tab 4). Mr. Thibodeau agreed that he never told Mr. Brown before the mutual gains session that the technicians’ pay proposal could not be effected.

60 Mr. Thibodeau testified that he attended the entire February 12, 2008 mutual gains session but that his role was as a witness, observer or guest. In cross‑examination, Mr. Thibodeau indicated that, after the meeting, he discussed with the management representatives present how the proposals would be reviewed and whether there was support for them. Mr. Thibodeau admitted that he did not tell local management to not bring to him any of the proposals discussed at the mutual gains session.

61 Mr. Thibodeau testified that, after the mutual gains session, he was not involved in the discussion with local management that led to the mutual gains reply of April 18, 2008 (Exhibit 1, tab 9). In cross-examination, Mr. Thibodeau indicated that he was surprised to see in the mutual gain reply that local management supported the technicians’ pay proposal, but he did not tell Mr. Barakett to not send the mutual gain reply to the Council. Mr. Thibodeau indicated that he saw the mutual gain reply on April 21 and that it had probably already been sent by the time that he saw it.

62 Mr. Thibodeau explained that his question to Mr. Barakett, “What is the way forward?” in Exhibit 1, tab 10, was meant to ask whether all the analysis and consultation had been done and whether Mr. Barakett had received all the necessary approvals. Mr. Thibodeau testified that, for him, the work done in the context of the mutual gains session was for the next round of collective bargaining but was not meant to be for the then-current round. In cross-examination, Mr. Thibodeau admitted that he never told Mr. Brown that the technicians’ pay proposal would not materialize or that it was not to be discussed in that round of collective bargaining. Mr. Thibodeau insisted that it was not his role to tell Mr. Brown since he was not the spokesperson.

63 Mr. Thibodeau testified that he never gave permission to proceed with the technicians’ pay proposal to Mr. Barakett with his April 21, 2008 email (Exhibit 1, tab 10).

64 Moreover, Mr. Thibodeau explained that, although he did not write back to Mr. Barakett on the April 21, 2008 email, he probably told him during a conversation that things could not have been done in that manner (Exhibit 1, tab 12).

65 Mr. Thibodeau indicated that agreement was never reached between the employer and the Council and that, even had the Council achieved local management support, he does not know on what basis the Council could have thought that an agreement had been reached.

66 In cross-examination, Mr. Thibodeau indicated that he never told Mr. Brown that the technicians would not be paid at pay group 12 before going to the arbitration board since it was not Mr. Thibodeau’s role to inform him.

67 Mr. Thibodeau testified that, in his conversation with Mr. Brown in May 2008, referred to in Exhibit 1, tab 14, he “likely” told Mr. Brown that the pay issue needed to be brought up at the collective bargaining table. In cross-examination, Mr. Thibodeau admitted that he did not tell Mr. Brown during that conversation that the technicians’ pay proposal was going nowhere. Again, Mr. Thibodeau insisted that it was not his role to inform Mr. Brown.

68 Mr. Thibodeau testified that the work done by the department in May 21, 2008 to make the change to pay the technicians at pay group 12 referred to in Exhibit 1, tab 16, was for the next round of collective bargaining. In cross-examination, Mr. Thibodeau recognized that the email is silent about that next round.

69 Mr. Thibodeau testified that he did not recall telling Mr. Brown that “he would fix it” when Mr. Brown raised with him the fact that the second draft of the collective agreement did not include a reference to the technicians being paid at pay group 12. Moreover, Mr. Thibodeau did not recall telling Mr. Brown at the session to sign the collective agreement in June 2008 that he would find another way to pay the technicians at pay group 12. As for paying the technicians acting pay, Mr. Thibodeau testified that he had nothing to do with that option. Answering a question from the grievor’s counsel about why Mr. Brown and Mr. Barakett were not told that they could not pay the technicians acting pay since there was no agreement on the technicians pay issue, Mr. Thibodeau testified that there had been no need since it was clear that an agreement was never reached.

70 Mr. Thibodeau explained that, in his email of July 3, 2008, he meant that the arbitral award “was what it was” and that he wanted to implement it. Mr. Thibodeau indicated that the way to change a collective agreement is to reopen it with the agreement of both parties, which was not done since, according to Mr. Thibodeau, no agreement was ever reached.

III. Summary of the arguments

A. For the grievor

1. Timeliness of the grievance

71 In response to the employer’s objection that the grievance should be dismissed on the basis that it is untimely, counsel for the grievor argued in his letter dated March 31, 2010 and at the hearing that the grievance is timely. He submitted that a first “oral” grievance was submitted to the employer after the Council received the second draft of the collective agreement, which did not include the reference to the agreement. Following that oral grievance, counsel for the grievor argued that the parties spent nearly a year trying to resolve the issue through an informal mediation process pursuant to section 207 of the Act and 62 of the Regulations and that the discussions continued throughout the period leading up to the grievance that was filed on May 7, 2009.

72 At any rate, counsel for the grievor argued that the grievance is continuing, and therefore, it is timely. He maintained that the collective agreement was repeatedly breached and that the employer’s liability began as soon as the Council verbally raised its concerns with the employer after it realized that the agreement was not reflected in the second draft of the collective agreement.

73 Hence, counsel for the grievor maintained that, in this case, a breach of the collective agreement occurred every time the grievor was not paid at pay group 12, as provided for in the collective agreement. Family and Children’s Services of Renfrew County v. Ontario Public Service Employees Union (2004), 124 L.A.C. (4th) 321, was cited. According to counsel for the grievor, the breach is still ongoing, since the technicians are today still not being paid at pay group 12. In support of the argument that this is a continuing grievance, counsel for the grievor referred me to Galarneau et al. v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 1, at para 17.

74 Counsel for the grievor argued that, since this is a continuing grievance, the only possible limitation is that the remedy could be limited to 25 days before the grievance was filed, as decided in Camilleri v. Canada Customs and Revenue Agency, 2003 PSSRB 90.

75 Alternatively, counsel for the grievor asked that, were I to not find the grievance continuing, considering counsel’s earlier argument and the factors stated in the Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, I should exercise my discretion under paragraph 61(b) of the Regulations and extend the time limit to file the grievance.

76 As for the merits of the grievance, and on the specific issue of whether an agreement was reached, including with the employer, counsel for the grievor compared the testimonies of Messrs. Brown and Barakett with that of Mr. Thibodeau.

77 Counsel for the grievor stated that both Mr. Brown and Mr. Barakett testified candidly, were forthright and held nothing back. Moreover, counsel for the grievor maintained that the evidence adduced by Mr. Brown and Mr. Barakett, the employer’s witness, was virtually the same. Counsel for the grievor argued that, in contrast, Mr. Thibodeau’s testimony was evasive and lacked directness.

78 Counsel for the grievor argued that the pay issue is old. He stated that, toward the end of 2007, the Council was getting ready for arbitration, since the parties had reached an impasse. However, to accelerate the collective bargaining process, the parties decided to bring some of the pay issues to the mutual gains session. Counsel for the grievor maintained that the idea behind that process was to have the parties settle some issues before going to the collective bargaining table to save time.

79 Counsel for the grievor stated that the evidence demonstrated that the employer’s representative, Mr. Thibodeau, insisted on being present at the February 12, 2008 mutual gains session and that the meeting had to be rescheduled three times to accommodate him.

80 Counsel for the grievor also argued that the evidence revealed that, at the February 12, 2008 meeting, local management and the employer’s representative, Mr. Thibodeau, reviewed all the proposals and that they did so with their eyes wide open, knowing perfectly well that they were granting a pay increase to the technicians by agreeing that they would be paid at pay group 12.

81 Counsel for the grievor insisted that, before the February 12, 2008 meeting, Mr. Thibodeau never asked local management to not deal with the technicians’ pay proposal. Nor did he, after receiving the minutes of the meeting, oppose the decision to pay the technicians at pay group 12 (Exhibit 1, tab 9). Counsel for the grievor insisted that, far from opposing the decision to pay the technicians at pay group 12, in his email dated April 21, 2008, Mr. Thibodeau asked about the way forward for the technicians, meaning that the employer was also supportive and in agreement with the decision and that it wanted to implement the pay raise. As for Mr. Thibodeau’s testimony that in his email of April 21, 2008 he was asking whether the proper consultation had taken place, counsel for the grievor maintained that there is absolutely no reference to consultation in Exhibit 1, tab 10, and that the explanation from Mr. Thibodeau can simply not be inferred from the April 21, 2008 email.

82 Moreover, counsel for the grievor argued that at no time did anyone from management, including Mr. Thibodeau, tell the Council that there were no agreement before the arbitration board held a hearing on May 3, 2008 (Exhibit 1, tab 13). Counsel for the grievor stated that the unchallenged testimony of Mr. Brown is quite clear that, if the Council had been made aware of the employer’s position before the arbitration board meeting, it would have included the pay issue for determination by that board.

83 Counsel for the grievor noted that on May 20, 2008, before the collective agreement was signed, Mr. Brown sent an email to Mr. Barakett, copying Mr. Thibodeau and others, in which he stated that “...you have agreed to the mutual gains proposal for the Electrical Systems Technicians EEW-11 Electrical Systems Technicians to be moved to pay group 12 with the other EEW-11 Electrical Systems Technicians . . .” No representative of local management or the employer objected or indicated that no agreement had been reached at the mutual gains session.

84 Counsel for the bargaining agent argued that local management and the employer continued to let the Council believe that they agreed with the proposal to pay the technicians at pay group 12 when it came time to sign the collective agreement. Counsel for the grievor argued that Mr. Brown’s testimony has to be preferred to Mr. Thibodeau’s with respect to his testimony about asking Mr. Thibodeau, in July 2008, why the reference to the new pay group for the technicians was not included in the second draft of the collective agreement. He testified that Mr. Thibodeau then told him, “I will fix it.” Counsel for the grievor insisted that, although Mr. Brown explicitly recalled Mr. Thibodeau’s words, Mr. Thibodeau indicated that he did not recall having said them but never denied saying them.

85 Counsel for the grievor argued that again, had Mr. Thibodeau rejected paying the technicians at pay group 12, Mr. Brown would have not signed the collective agreement. Counsel for the grievor stated that again, by its representations and promise, the employer prejudiced the Council. Counsel for the grievor stated that, relying on Mr. Thibodeau’s promise, Mr. Brown signed the collective agreement.

86 Counsel for the grievor maintained that Mr. Barakett’s evidence is also to the effect that at no time before the arbitral award or the collective agreement signing did Mr. Thibodeau state that he did not agree with the agreement reached at the February 12, 2008 session. According to counsel for the grievor, Mr. Barakett’s expectation was identical to that of Mr. Brown. Mr. Barakett testified that he was not surprised that the Council believed that an agreement had been reached.

87 Counsel for the grievor argued that the facts of this case clearly support estoppel. In his view, a clear promise was made to the Council upon which it relied to its detriment and to the detriment of its members. In addition to the agreement, and given that Mr. Thibodeau told Mr. Brown that he would fix the issue, counsel for the grievor argued that the employer’s subsequent and ongoing attempts to settle the issue, for instance through resorting to acting pay, is additional evidence that the employer recognized that it was obligated to fix the pay issue. Referring to Exhibits G‑1, G-2 and G-3, which deal with how to fix the pay issue through acting pay, counsel for the grievor insisted that that is additional evidence that the employer knew that it was obligated to resolve the pay issue. Otherwise, why did it raise the acting pay solution?

88 Counsel for the grievor stated that the notion of estoppel is still developing and that adjudicators need to have the full suite of remedies at hand to rectify situations in which an employer made a promise and the bargaining agent relied on that promise to the detriment of its members. In this case, counsel for the grievor submitted that the grievance had been properly filed under paragraph 209(1)(a) of the Act since the issue is that the grievor was not paid according to the agreement reached at the mutual gains session. Counsel for the grievor maintained that the grievor’s requested remedy is in the collective agreement. A promise was made to pay the technicians at pay group 12. The grievor is not asking the adjudicator to amend the collective agreement, which already provides for pay groups 11 and 12. Counsel for the grievor maintained that the grievor is simply asking to be paid as promised.

89 In addition, counsel for the grievor referred me to Matear v. Treasury Board (Department of Industry), 2008 PSLRB 11, in support of his position that this grievance was properly referred to adjudication under section 209 of the Act since the pay issue is certainly related to “… the interpretation or application … of [the] collective agreement …” as contemplated by paragraph 209(1)(a).

90 Counsel for the grievor also referred me to the Federal Court judgment in Canada (Attorney General) v. Molbak, [1996] F.C.J. No. 892 (T.D.) (QL), in support of his argument that an adjudicator has jurisdiction over a matter of overpayment and has jurisdiction to apply the doctrine of estoppel. As for the principles governing the relationship between an employer and the Council as well as the application of the doctrine of estoppel, counsel for the grievor referred me to the Supreme Court of Canada judgment in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59.

B. For the employer

91 Counsel for the employer maintained that the grievance is untimely and outside an adjudicator’s jurisdiction, and therefore, it should be dismissed. Counsel for the employer stated that the grievor had, according to clause 19.12 of the collective agreement, 25 days to file his grievance. He did not file it within the prescribed time limit.

92 Counsel for the employer stated that the Council knew as early as August 2008 that the employer did not agree with the Council’s pay proposal for the technicians (Exhibit G-1). Moreover, the employer reiterated its answer to the Council on February 6, 2009. Only on May 7, 2009, eight months after the employer’s initial refusal, did the grievor file his grievance. That was well past the prescribed time limit.

93 Counsel for the employer argued that it is not a continuing grievance since there is simply no evidence that the collective agreement was violated. He referred me to Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 2:3128, which sets out the test to determine whether a grievance is continuing, which is whether the claimant can prove that a recurring breach of duty has occurred, not just recurring damages. In this case, counsel for the employer argued that no evidence supports a recurring breach of duty. He maintained that a review of the grievance demonstrates that the focus is not on pay. According to counsel for the employer, the grievance refers to a distinct and isolated incident. Therefore, I must conclude that it is not a continuing grievance.

94 As for the grievor’s request for an extension of time, counsel for the employer argued that the grievor waited until March 31, 2010 to ask for that extension. Moreover, applying the factors elaborated in Schenkman to the facts of this case, counsel for the employer concluded that the evidence did not demonstrate that there was a clear, cogent or compelling reason for the late filing of the grievance. In addition, counsel for the employer argued that I cannot conclude that there was a clear, cogent and compelling reason to explain the delay since the grievor did not testify and explain that reason. In support of his arguments, counsel for the employer referred me to Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, in which the Vice-Chairperson discussed the importance of respecting the time limits agreed to by the parties and that those limits should be extended only exceptionally. Counsel for the employer also cited Wyborn v. Parks Canada Agency, 2001 PSSRB 113, with respect to the prejudice caused to the employer by the late filing.

95 As for counsel for the grievor’s argument that the grievance is timely and that the remedy should apply forward since the grievor is still not being paid at pay group 12, counsel for the employer argued that, first, any remedy, in light of Canada (National Film Board) v. Coallier, [1983] F.C.J No. 813 (C.A.) (QL), should be limited to the 25 days before the grievance was filed and second, that any remedy should also be limited to the life of the collective agreement in force when the grievance was filed.

96 As for the merits of the grievance, counsel for the employer stated that the legal framework binding on the parties differs from that of the private sector, referred to by counsel for the grievor. The parties are governed by statutes and certainty. In addition, in the same bargaining unit, different terms and conditions of employment based on local agreements cannot exist.

97 Counsel for the employer argued that the grievor’s case is based on equity, which cannot be challenged since the grievor was not present and did not testify. Counsel for the employer disagreed that the doctrine of estoppel applies since, contrary to the situation in Molbak, the grievor did not testify and there is simply no evidence that the employer made any kind of representation to the grievor and that, on the basis of those representations, the grievor acted to his detriment.

98 Counsel for the employer stated that, despite the fact that an agreement might have occurred at the mutual gains session, the so-called “agreement” was never signed by the parties. Therefore, it was never included in the collective agreement. Since adjudicators draw their jurisdiction from the Act and paragraph 209(1)(a) gives me jurisdiction only over matters included in a collective agreement, I do not have jurisdiction to decide this matter. Counsel for the employer referred me to Wray et al. v. Treasury Board (Department of Transport), 2012 PSLRB 64, at para 22 and 29, and Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, at para 50, 75 and 76.

99 Counsel for the employer distinguished Nor-Man Regional Health Authority Inc. cited by counsel for the grievor on the basis that the legislation involved in that case, the Manitoba Labour Relations Act, R.S.M. 1987, c. L10, subsection 121(1) allowed an adjudicator to consider, in addition to a collective agreement, the “… real substance of the matter in dispute between the parties…” Counsel for the employer submitted that the Act does not have the same provision. Therefore, the principles enunciated in Wray et al. at paragraph 22 and in Chafe et al. at paragraph 50 about an adjudicator’s jurisdiction under the Act should prevail. As for Matear, counsel for the employer strongly disagreed with its conclusion that paragraph 209(1)(a) of the Act should be interpreted to include a grievance that is “related to” a provision of a collective agreement. Counsel for the employer argued that such an interpretation fails to consider section 208 of the Act, which does not contain the phrase “related to.” Counsel for the employer insisted that paragraph 209(1)(a) of the Act cannot be read in isolation and that paragraph 209(1)(a) cannot broaden the meaning of section 208.

100 In addition, counsel for the employer argued that, were I to decide that the agreement was part of the collective agreement, I would, as a result, amend the collective agreement, which would contravene section 229 of the Act.

101 Counsel for the employer also made the point that the parties are sophisticated and are familiar with the collective bargaining process. They should have known that, if an agreement is reached, they should sign it. That was not done with respect to the pay issue.

102 After reviewing the facts of the case and the testimonies, counsel for the employer maintained that, at no time, either when the parties exchanged their collective bargaining proposals in 2006, when they reached an impasse in 2007 and the Council requested an arbitration board, or when the parties signed the collective agreement, did the pay issue find its way into the Council’s submissions. Counsel for the employer also noted that the parties never signed the agreement.

103 As for Mr. Thibodeau’s testimony, counsel for the employer insisted that it was straightforward and that Mr. Thibodeau’s version about the next round of collective bargaining is credible.

104 As for the reply following the mutual gains session (Exhibit 1, tab 9), counsel for the employer made the point that Mr. Thibodeau never voted on the proposals and that, as Mr. Barakett explained, a distinction must be made between the roles and responsibilities of local management and those of the employer.

105 Finally, counsel for the employer pointed out that the Council could have asked to reopen the collective agreement or could have filed a bad faith bargaining complaint. It did not.

C. The grievor’s rebuttal

106 With respect to Wray et al. and the issue of an adjudicator’s jurisdiction, counsel for the grievor submitted that, when the adjudicator in that case mentioned at paragraph 22 “… a grievance must be about the interpretation … of a collective agreement provision … ,” the word “about” is to be given the same meaning as the words “related to” used by the adjudicator in Matear and that the analysis in Matear still stands. Finally, counsel for the grievor argued that the facts in Chafe et al. differ from those in this case in that, in Chafe et al., the employer made no promise, and therefore, no agreement was reached.

IV. Reasons

107 I have, later in this decision, held that the grievance is untimely. However, as the central issue in this grievance concerns the existence or non-existence of the agreement of February 2008, I will first address this issue. In other words, I must first resolve the employer’s objection that no agreement was reached to pay the technicians at pay group 12. According to it, as no agreement was reached, the so-called “agreement” could not have been included in the collective agreement. As a result, it concluded that I have no jurisdiction over the matter under paragraph 209(1)(a) of the Act. However, counsel for the grievor claimed that an agreement was reached. Counsel for the grievor also argued that the requested remedy is to give effect to the agreement and to simply move the grievor from one pay group to another. Counsel for the grievor argued that the collective agreement already provides for pay groups 11 and 12.

108 Based on the evidence, I find that, clearly, an agreement was reached following the February 2008 mutual gains session, as reported in the reply of April 18, 2008 (Exhibit 1, tab 9). Moreover, the evidence is also clear that the agreement was reached with the full knowledge and acquiescence of the employer’s representative.

109 In my opinion, the evidence demonstrated that, from the beginning, Mr. Thibodeau was made aware that the issues to be dealt with at the February 2008 session were pay issues that could also have been dealt with at the collective bargaining table. When Mr. Barakett asked him, “Marc, are you suggesting that we should not be hearing their arguments on the 24 Jan and if so do you want me to tell Lorne that we are not in a position to hear them outside of negotiation and/or that they shouldn’t be treated as Mutual Gain points,” Mr. Thibodeau did not object to the issues being brought up at the February 2008 meeting. It is interesting to note that Mr. Thibodeau insisted on being present at the February session and that, to accommodate his presence, the meeting had to be rescheduled several times (Exhibit 1, tabs 5 to 7).

110 In my view, it is also interesting to note that the February 2008 meeting was scheduled well ahead of the arbitration board hearing on May 3, 2008. According to Mr. Brown’s testimony, had he known then that the employer would not agree to the proposals set out in the mutual gains session, the Council would have referred it to the arbitration board for a determination.

111 Moreover, I note that on April 18, 2008, upon receiving the draft decision record of the February 2008 session, which indicated local management’s support for the proposal for moving the technicians into pay group 12, nobody, including the employer’s representative, disagreed with the proposal or stated that it should no longer be entertained (Exhibit 1, tab 9). To the contrary, Mr. Thibodeau asked on April 21 2008, “Roger, in your view, what is the way forward on the EEW 11?” (Exhibit 1, tab 10.) During his testimony, Mr. Thibodeau explained that he meant simply to inquire of Mr. Barakett whether the proper consultation had taken place. For Mr. Thibodeau, it was work to be done in preparation for the next round of negotiations. I am not convinced by that argument, especially since in April 2008 the parties were still in negotiations. It is hard to understand why they would have been preparing for the next round of negotiations. Moreover, the April 21, 2008 email from Mr. Thibodeau is silent about future rounds. I agree with counsel for the grievor that the email has to be given its usual meaning. In my view, it is more plausible to conclude that the April 21, 2008 email dealt with how to immediately begin to implement the agreement to pay the technicians at pay group 12. Again, I note that everything occurred before the arbitration board had its hearing and a few months before the collective agreement was signed in June 2008. Also, regardless of how Mr. Thibodeau viewed the situation, the evidence, including the employer’s evidence, revealed that the bargaining agent came to the entirely reasonable conclusion that the discussion on the technicians pay issue related to the current round of bargaining.

112 I also note again that, on April 22, 2008, while being copied on an email sent by Commanding Officer Haines, the employer had another opportunity to express its disapproval for paying the technicians at pay group 12. It did not. (Exhibit 1, tab 11). The same thing occurred with respect to an email sent by Mr. Barakett on April 22, 2008, discussing how the money would be divided to accommodate the pay increase. Again, the employer received a copy of that email and did not raise any concerns.

113 After the arbitration board issued its award, which not surprisingly did not refer to the pay issue, Mr. Brown wrote again, in May 2008, to local management as well as to the employer’s representative, asking how to proceed with implementing the new pay for the technicians. Here again, nobody from local management or the employer objected to Mr. Brown’s reference, made before the collective agreement was to be signed, to “an agreement” reached at the mutual gains session (Exhibit 1, tabs 14 and 15):

… [Y]ou have agreed to the Mutual Gains proposal for the Electrical Systems Technician EEW-11 Electrical Systems Technicians to be moved to pay group 12 with the other EEW‑11 Electrical Systems Technicians. I have had a brief conversation with Marc on this and was wondering how we are going to proceed with this proposal.

114 The evidence, clearly indicated that on May 21, 2008, with the knowledge of the employer’s representative, local management continued to support paying the technicians at pay group 12 and that management did not consider the change from pay group 11 to 12 a classification issue (Exhibit 1, tabs 16 and 17).

115 In his testimony, Mr. Brown indicated that, when he received the second draft of the collective agreement, he noted that the reference to paying the technicians at pay group 12 was still missing. Mr. Brown testified that Mr. Thibodeau told him that he would “fix it.” Mr. Brown testified that, with that understanding, he signed the collective agreement on June 16, 2008. In his testimony, Mr. Thibodeau indicated that he did not recall saying that he would “fix it” but also did not deny saying those words. I must say that I prefer Mr. Brown’s version. Although the employer’s representative indicated that he did not recall saying the words, he did not challenge the fact that Mr. Brown raised with him the issue of the missing reference to paying the technicians at pay group 12 or that he had provided reassurance to Mr. Brown on the issue. In the circumstances, it is very credible that Mr. Brown received assurance that the matter would be fixed. Otherwise, as he testified, he would not have signed the collective agreement.

116 The evidence also demonstrated that the first time that the employer told local management that there was “no appetite at our end to look into changes in the [collective agreement] other than the arbitral award” was in July 2008, right after the collective agreement was signed and of course after the arbitral award was issued. Mr. Brown testified that he was made aware that the employer indicated that it did not support paying the technicians at pay group 12 at the end of August 2008. At that point, the Council no longer had any leverage; it was too late to include the new pay rate for the technicians into the arbitral award and the collective agreement.

117 Despite the employer’s position, the parties, again with the full knowledge of the employer, continued in December 2008 to try to solve the issue. They even considered having the technicians act as electronics systems technicians, to no avail (Exhibits G-1, G-2 and G-3).

118 Mr. Brown testified that, until January 2009, when he wrote to Mr. Thibodeau (Exhibit 1, tab 20), he understood that management was still trying to find a way to implement what Mr. Brown considered the agreement reached almost a year before. Mr. Brown also testified that, when he received Mr. Thibodeau’s final response in February 2009, he approached the employer’s ADM in March 2009 about the issue. Receiving no response from the ADM, the grievor filed a grievance on May 7, 2009. Only on July 31, 2009, after raising the issue again in June 2009, did he receive a negative answer from the ADM (Exhibit 1, tab 23).

119 As I have indicated, it is clear to me that an agreement was reached to pay the technicians at pay group 12 and that not only did local management agree, so did the employer, through its representative. Only after the arbitral award was rendered and the collective agreement signed, when the Council had no other leverage, did the employer indicate that it no longer agreed. Counsel for the grievor argued that an agreement was reached and that the employer, due to the representations it made, was estopped from taking a different position. Brown and Beattydefine the doctrine of estoppel as follows at paragraph 2:2211:

…

Thus, the essentials of estoppel are: clear and unequivocal representation, particularly where the representation occurs in the context of bargaining; which may be made by words or conduct; or in some circumstances it may result from silence or acquiescence; intended to be relied on by the party to whom it was directed; although that intention may be inferred from what reasonably should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom.

120 In my view, the doctrine of estoppel clearly applies to this case in the sense that a promise was made at the February 2008 mutual gains session, which the Council relied on to its detriment. Again, the evidence is clear. The testimonies of Messrs. Brown and Barakett as well as all the correspondence up to July 2008 indicate that the parties had agreed that the technicians were to be paid at pay group 12. The employer had numerous occasions to indicate its opposition to the pay proposal. It did not. By its actions, it encouraged the Council’s belief that an agreement had been reached. Had the Council not acted on the promise made by local management and the employer, the matter would have been referred to the arbitration board or, as stated by Mr. Brown, he would not have signed the collective agreement. On that point, I must say that Mr. Brown’s and Mr. Barakett’s testimony are very similar. Although it is true that Mr. Barakett testified that he never told the Council that there was an agreement, he also testified that the employer never said before July 2008 that it did not want to go along with the pay increase. Furthermore, Mr. Barakett indicated that he understood how the Council could have reached the conclusion that an agreement had been reached about paying the technicians at pay group 12.

121 I believe that local management, including Mr. Barakett, tried its best to implement the agreement, only to be told later by the employer that the matter should have been dealt with at the collective bargaining table.

122 In his argument, counsel for the employer argued that, since the agreement was never included in the collective agreement, I have no jurisdiction. I find that an agreement was reached, and, by its actions and representations, the employer is estopped from taking a different position.

123 The employer also argued that, were I to read in the collective agreement that the technicians were to be paid at pay group 12, my decision would have the effect of amending the collective agreement, in contravention of section 229 of the Act. Although I agree with counsel for the employer that I cannot amend a collective agreement, I would point out that I am only giving effect to an agreement entered into by the parties. In my view, the parties in the February 2008 session, agreed that the technicians would be paid at pay group 12. The collective agreement already provided for pay at pay group 12 for other trades. I am not adding a new pay group by this decision but simply acknowledging what the parties themselves have agreed to. Again, the pay issue was never addressed as a classification issue and is only a change to the pay group already provided for in Appendix “A” of the collective agreement.

124 I have been asked, based on the evidence, to give effect to an agreement. Although it is true that the parties could have solved this matter at the collective bargaining table, they chose to do so at a different forum – the mutual gains session. Nothing was wrong with that choice. However, the employer cannot claim that no agreement was reached solely for that reason, especially after the Council had foregone the arbitral award and collective agreement routes as a result of the employer’s representations. I repeat; the agreement was reached with the full knowledge of all parties. The employer had numerous occasions to object to the Council’s statements that an agreement had been reached on the specific issue of paying the technicians at pay group 12. The employer decided not to, and waited until after the avenues for redress, namely, the possible referral of the pay issue to the arbitration board for determination or withholding signing the collective agreement, were no longer available to the Council, to inform the Council that it did not consider that an agreement had been reached and that the matter should be raised at the next collective bargaining round.

125 As for the employer’s argument that the bargaining agent could have asked to re-open the collective agreement, I believe it would have been odd for the bargaining agent to do so, since its position was that it had already reached a deal on the pay issue for the technicians with the employer. Why then ask to re-open the collective agreement? Also, I do not find the fact that the bargaining agent did not file an unfair labour practice complaint as being relevant to this issue. The lack of filing such complaint cannot, in this specific case, deny the grievor his right to grieve.

126 Having decided that an agreement was reached, that it is part of the collective agreement and that the employer cannot now deny it or refuse to honour it, I will now address the issue of timeliness raised by the employer. In my view, the pay issue did not conclude with Mr. Thibodeau’s letter of February 6, 2009. Mr. Brown testified that, even after receiving the letter, he raised the matter with the ADM in March 2009. After not receiving an answer, Mr. Brown raised the matter again in June 2009 with the ADM. Finally, apologizing for the delay, she answered only in late July 2009 (Exhibit 1, tab 23).

127 In this case, the grievor’s witness admitted in cross-examination that, in late August 2008, he first became aware that Mr. Thibodeau stated that “There was nothing [he] [could] do from [his] end.” The employer argues that the time limits for filing a grievance began to run from this date. I disagree. The evidence indicated that the issue continued to be a live one between the parties long after that date. In any event, given my conclusions below on the issue of continuing grievance and the request for an extension of time, I need not determine the time limits for filing.

128 However, as I will discuss, the evidence also demonstrated that the pay issue was very much alive between the parties well past August 2008.

129 In his submission, counsel for the grievor argued that, even though the grievance was filed after the required 25 days, it is somewhat immaterial since this is a continuing grievance and that, if indeed it is continuing, the only consequence would be to limit the remedy but would not render the grievance inadjudicable.

130 So what is a continuing grievance? Canada Labour Arbitration, at paragraph 2:3128, defines a continuing grievance as follows:

…

Where the violation of the agreement is of a continuing nature, compliance with the time-limits for initiating a grievance may not be as significant unless, of course, the collective agreement specifically provides that in those circumstances the grievance must be launched within a fixed period of time. Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach … In any event, the test most commonly used in determining whether there is a continuing violation is the one derived from contract law, namely, that there must be a recurring breach of duty, and not merely recurring damages.

…

131 It is generally recognized that continuing grievances allege repeated breaches of a collective agreement and not simply a single or isolated breach. It is also recognized that failing to file a continuing grievance within the time specified in the relevant collective agreement will not render the grievance inadjudicable but will, as decided in Coallier, limit the remedy period to the time prescribed in the collective agreement. In this case, that time is 25 days before the date on which the grievance was filed.

132  In my view, in this case, following the agreement reached at the February 2008 mutual gains session, each failure to pay the technicians at pay group 12 constituted another breach of the collective agreement. There was no isolated incident. In my opinion, the employer repeatedly breached its duty each time it did not, as repeatedly asked by the Council, follow the agreement.

133 Given the circumstances, I agree with the conclusion reached in Baker v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 34, that, once it is decided that a grievance is continuing, it is adjudicable, even if it was not filed within the prescribed time limit. However, as follows, note that there are consequences to the remedy:

15. It is generally recognized in the arbitral jurisprudence that continuing grievances are ones that allege repetitive breaches of a collective agreement rather than simply a single or isolated breach. The test applied by arbitrators is whether there has been a recurring breach of duty and not merely recurring damages. The significance of characterizing a grievance as continuing relates to the remedy available. Failure to file a continuing grievance within a required period of time (such as one set out in a collective agreement) will not render it inarbitrable. However, the relief available under a continuing grievance may be limited to the time limit specified under the collective agreement (see Brown and Beatty, Canadian Labour Arbitration, 4^th ed. (February 2008), para 2:3128).

134 In this case, and taking into account the Coallier decision, I believe that the remedy should be limited to the 25 days before the grievance was filed on May 7, 2009.

135 I must add that, even had I concluded that the grievance is not continuing and that it is thus untimely, I would have granted the request for an extension to file it, for the following reasons.

136 It has been well established by the Board’s jurisprudence that the following criteria ought to be considered when deciding whether to grant an extension of time under section 61 of the Regulations. Those criteria were first applied in Schenkman and read as follows:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the applicant;
• balancing the injustice to the applicant against the prejudice to the respondent and;
• the chances of success of the grievance.

A. Clear, cogent and compelling reasons for the delay

137 There is no doubt that, for the reasons cited earlier, until the end of August 2008, the Council was genuinely under the impression that an agreement had been reached at the February 2008 mutual gains session and that, therefore, there was no obvious need to file a grievance. Moreover, as demonstrated by the evidence, even after August 2008, the parties, through Messrs. Brown and Barakett, were still trying to find a solution to the pay issue. In my view, that clearly explains why the Council did not file a grievance even then, preferring a negotiated solution. The unchallenged evidence also demonstrated that, even after Mr. Thibodeau’s letter of February 6, 2009, Mr. Brown was still discussing the problem with the employer’s ADM. He received an answer from her almost three months after the grievance was filed. In my view, the evidence clearly demonstrates that, there is a clear, cogent and compelling reason to explain the so-called delay. The evidence also demonstrates that the Council, on behalf of the grievor, was very diligent and persistent with its demand. Counsel for the employer argued that it was up to the grievor to testify and to explain the reasons for the delay, and that no explanations were heard from him. Although I agree that the grievance was filed by the grievor and that it is not a policy grievance, I note that no objection was raised to Mr. Brown testifying. I think that it is clear that all the relevant actions for this grievance were taken by Mr. Brown, on behalf of the grievor, and that Mr. Brown has personal knowledge of all the facts of this case. That said, the grievance involved only the grievor. Although I am not aware of whether the circumstances specific to the grievor were different from those of the other technicians, I must still limit the remedy to the grievor. My decision cannot apply to those who did not grieve.

138 Finally, with respect to the other criteria stated in Schenkman, namely, balancing the injustice to the applicant against the prejudice to the respondent and the chance of success of the grievance, I would add only that, obviously in this case, I find that it would be wholly unfair to the grievor to deny his application for an extension, considering that I found that an agreement was reached. In the circumstances, I fail to see any prejudice to the employer caused by the grievor’s delay in filing his grievance. As for the chance of success of the grievance, I have already decided that an agreement was reached to pay the technicians at pay group 12. The merits of the grievance are founded.

139 For all of the above reasons, I make the following order:

V. Order

140 The grievance is allowed. The employer is directed to pay the grievor, for the duration of the collective agreement with the expiry date of December 31, 2009, at the level of pay group 12 rather than pay group 11, retroactively to 25 days prior to the filing of his grievance and up to the date of his retirement, and to make all other necessary adjustments to his pay, pension, and benefits resulting therefrom. I will remain seized of this matter for a period of 60 days from the date of this decision in the event that the parties encounter any difficulties with its application.

October 4, 2012.

Linda Gobeil,
Vice-Chairperson