Ontario’s Divisional Court has overturned a decision by the Ontario Labour Relations Board (the “OLRB”), in which the OLRB took jurisdiction as arbitrator over a grievance in the construction industry under section 133 of the Act.
Section 133 provides that, “despite the grievance and arbitration provisions in a [construction industry] collective agreement,” a party may refer a grievance to the OLRB, instead of to a private arbitrator under the collective agreement.
Although the collective agreement’s time limits for referring a grievance to arbitration had expired several months before the union applied to the OLRB pursuant to section 133, the OLRB found that it could take jurisdiction over the grievance. The OLRB has, over several decades, issued decisions which either broadly or strictly interpreted its power to take jurisdiction over a grievance under similar circumstances.
In this case, Greater Essex County District School Board v. United Association of Journeymen, the Divisional Court found that the OLRB could not exercise its authority under section 133 to extend or ignore the time mandated in a collective agreement for referring a grievance to arbitration.
The Divisional Court expressly rejected the union’s submission that section 133 provides the OLRB with a “superpower” permitting it to override and extend the time for referral of a grievance to arbitration beyond the time frame stipulated in the parties’ collective agreement, and ruled the OLRB’s finding otherwise was unreasonable.