Sexual Assault Grievance Timelines Not Always Extended in Alberta
In Alberta v Alberta Union of Provincial Employees, 2022 CanLII 45552 (AB GAA) (McFetridge) an arbitrator held that he did not have the authority to extend the time limits or otherwise add to, alter, or amend the terms of a Collective Agreement even if the subject matter of the dispute relates to sexual assault.
This case is academically interesting because ordinary limitations and time-limit rules do not normally apply to a claim of sexual assault in Alberta.
The following were the facts found by Arbitrator William McFetridge Q.C.:
- In this decision, the Greivor alleged that she was sexually assaulted at her home by a co-worker (the “Sexual Assault”) and that when she brought the Sexual Assault to the attention of her employer, she was told to “put it in a book, put it on a shelf and forget about it.” The Greivor also alleged that she was made to work with her attacker and that the Employer’s conduct was a violation of the Collective Agreement (collectively the “Grievance”).
- The Grievance was filed approximately five years after the Employer’s alleged conduct and approximately one year after the Grievor’s employment was terminated for cause.
- During the Greivor’s employment and when the Greivance was filed the Collective Agreement contained the following terms (with emphasis added):
- An Employee wishing to pursue a grievance, shall submit it in writing to the Designated Officer at Level 1 within fourteen (14) days of the date upon which the subject of the grievance occurred or the time when the Employee first became aware of the subject of the grievance.
- Time limits and procedures contained in this grievance procedure are mandatory. Failure to pursue a grievance within the prescribed time limits and in accordance with the prescribed procedures shall result in abandonment of the grievance.
- Time limits in this Article may be extended by written agreement between the Employing Department or the Employer and the Union.
- Arbitration Boards, single arbitrators and mediator -arbitrators shall not add to, alter, modify or amend any parts of the terms of the Collective Agreement by their decision, nor make and decision inconsistent with it nor to deal with any other matter that is not a proper matter for grievance under the Collective Agreement.
Analysis / Conclusion
Arbitrator McFetridge confirmed that the Collective Agreement was the source of his jurisdiction and that an arbitrator in Alberta has no authority to waive or extend the mandatory time limits set out in a collective agreement.
Both the Collective Agreement and the Alberta Labour Relations Code prohibited the Arbitrator from making any decision which would add to, alter, modify or amend any part of the terms of the Collective Agreement.
The Arbitrator explained that although the Collective Agreement now included language that permits an arbitrator to extend time limits, this did not become part of the Collective Agreement until many years after the Grievance was filed. In addition, the provisions in the current Collective Agreement which allow an arbitrator to extend time limits speaks from the date set forth in the agreement itself and is not applied retroactively unless expressly stipulated by the Agreement which was not the case.
The Arbitrator also noted that in Alberta, a victim’s right to bring a criminal or civil action in the courts for a serious sexual assault, is not time limited: the Criminal Code of Canada has no limitation with respect to cases involving serious sexual assault and the Alberta Limitations Act was recently amended to eliminate the limitation period for claims that relate to a sexual assault.
The Arbitrator was clear that he accepted that the Grievor was the victim of a sexual assault as her evidence had not been challenged. However, the Union was not seeking an extension so that the perpetrator of the assault could be prosecuted or for the Grievor to pursue a claim for damages for injuries she incurred as a result of the sexual assault.
The Arbitrator held that the fact that the dispute originated because of a sexual assault did not affect his jurisdiction to hear it because the time within which a grievance must be filed is not altered by the subject of the dispute.
The Union had argued that the trauma of the sexual assault prevented the Grievor from becoming aware of the subject of the Grievance but the Arbitrator did not accept the argument. The Arbitrator confirmed that the threshold to establish awareness of the subject of a grievance requires only that the facts and circumstances be known to the employee and that a grievor’s subjective readiness to proceed is not what triggers the time to start running.
In particular, there is a difference between being psychologically unable to proceed with a grievance and being unaware of the subject of a grievance. The question that the Arbitrator stated must be answered, is whether the facts and circumstances which are the subject matter of the grievance were known to the Grievor and whether she had the mental capacity to form an awareness of them more than 14 days before she filed this Grievance.
In this case the collective agreement that was in place during the relevant time period contained strong language regarding the time limits for submitting a grievance and the consequences for failing to adhere to the timelines. If the language of the collective agreement had been discretionary or had contemplated the extension of time for extenuating circumstances, the outcome may have been different. This decision is also a reminder of what constitutes “awareness” of the subject of a grievance.
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