Recently, Emond Harnden’s very own Neil Dzuba and Brett Hynes were successful in having a grievance dismissed as untimely. Sheet Metal Workers’ International Association, Local 47 v. Simluc Roofing Contractors Ltd. involved the referral of a construction grievance to arbitration at the Ontario Labour Relations Board (the “Board”). Neil and Brett made a preliminary objection to the grievance on behalf of their client, Simluc Roofing Contractors Ltd. (the “Employer”), arguing that the union had failed to respect the mandatory time limit for filing a grievance under the collective agreement. Not only did they successfully make the argument that the grievance was out of time, but they also convinced the Board not to exercise its discretion to extend the time limit – even though the Employer did not assert any specific prejudice due to the delay.
Background
The grievance at the heart of the matter alleged a violation by the Employer of the “Apprenticeship Program” clause in its Provincial Collective Agreement with the Ontario Industrial Roofing Contractors’ Association and the Ontario Sheet Metal Workers’ & Roofers’ Conference (the “Collective Agreement”). Briefly, the grievor was hired by the Employer as a Pre-Apprentice Roofer, and the union was of the view that he had accumulated enough hours to progress to the Apprentice 1 classification effective January 1, 2025. The union first raised the issue with the Employer in June. It followed-up once more in August before filing the grievance on September 26, 2025.
Suffice it to say, the Employer disagreed with the substantive position taken by the union in respect of the grievance. Through its counsel, it also raised a preliminary objection asserting that the grievance was out of time. The relevant language in the Collective Agreement provided that “[a] grievance of an employee, to be considered, must be lodged with his employer within two working days following the incidence giving rise to the grievance…”. It was not disputed that the language in question was mandatory (“must”), and that the parties had not agreed to any extension of the time limit.
The Employer asserted that the grievance had crystallized on January 1, 2025 and that the union was aware of the issue at that time (or ought to have been aware of it based on its remittance reports). Since the grievance was not filed until September 26, 2025, it argued that it was filed beyond the two working day period permitted under the Collective Agreement and that there was no good reason for the delay. The Employer further argued that the grievance was, at its core, a classification grievance and was therefore not a continuing grievance such as to make the grievance timely.
For its part, the union argued that it had moved expeditiously to file the grievance and that in any event, it was timely because it constituted a continuing grievance. In the alternative, it asked the Board to exercise its discretion under the Labour Relations Act, 1995 to extend the time for filing the grievance.
Decision
In arbitral jurisprudence, a “continuing grievance” involves repetitive breaches of a collective agreement, resulting in damage of a recurring nature. Given the arguments made by the parties on the issue, the Board considered the seminal authority as to what constitutes a continuing grievance – Port Colborne General Hospital v. O.N.A. In that case, Arbitrator Burkett commented:
[…] It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. […] (pp. 327-328)
The Board distinguished the cases relied upon by the union where a grievance was found to be a continuing grievance, stating:
That [the grievor] perhaps ought to have been advanced on a specific date does not mean that every day thereafter when he is not advanced makes the grievance a continuing one, nor does the fact that he was paid at all times as a Pre-Apprentice 3. If that was the case, then every discrete breach could be said to be continuing for as long as the initial breach is not remedied. If the Board were to ultimately find that [the grievor] ought to have been advanced on January 1, 2025, no doubt there would be damages flowing from the breach. However, there is a distinction between a continuing breach and a continuing remedy […].” (para. 25)
As the Board concluded that the grievance was not a continuing grievance, it was untimely. The Board also declined to exercise its discretion to extend the time for filing the grievance, acknowledging the need for expedition in the filing and processing of grievances in the construction industry and the lack of reasonable grounds to extend in the circumstances. Although the Employer did not assert any specific prejudice due to the delay, the Board agreed with its assertion that prejudice is only a factor to be considered and that the absence of prejudice does not necessitate an extension in every case:
[…] I agree with Simluc, it cannot be that a union can delay the filing of a grievance without any reasonable explanation or credible reasons then simply assert that the absence of prejudice absolves it from its part in the matter. (para. 30)
In the end, the Employer’s preliminary objection was successful and the grievance was dismissed.
In Our View
Our lawyers are experienced and effective advocates who always strive to obtain the best possible outcome for our clients in labour arbitration proceedings. Whether that means making preliminary objections or arguing a case on the merits, we are prepared to take all necessary steps to advance our clients’ interests.
For more information, please contact Neil Dzuba at (613) 415-9582 or Brett Hynes at (613) 563-7660.