HomeMy WebLinkAbout1990-3018.Coubrough et al.92-01-09 DecisionEMPLOYES DE LA COURONNE DE L 'ONTARIO COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS OUEST. BUREAU
2100. TORONTO (ONTARIO). M5G 1z8 (4 326-1388 16) 326-1396 3018/90 IN THE MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT
BOARD BETWEEN OPSEU (Coubrough/Sinisalo) Grievor -'and -The Crown in Right of Ontario (Ministry of Health) Employer BEFORE : FOR THE GRIEVOR M. Gorsky W. Rannachan D. Montrose Vice-Chairperson
Member Member P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE B. Humphrey EMPLOYER Counsel Stringer, Brisbin & Humphrey lpli" Barristers & Solicitors
HEARING June 13, 1991 October 8, 28, 1991 November 21, 1991
1 D E C I S I O N The Grievors, Maritta Sinisalo and Valerie Coubrough, are both classified as Nurse 3 General, and have the position title of Community Nurse Clinicians at the Whitby
Psychiatric Hospital. They are members of a three-person team working in the psycho-geriatric area, and provide clinical mental health nursing services in the catchment area of the Hospital.
Both grievances, dated January 18, 1991, claim that the Grievors' hours of work were changed from 36.25 per week to 40 per week and, each of them requests, by way of settlement, that
their hours of work per week be changed back to 36.25 per week, and for incidental relief because they have been required to work more hours in a week than the Employer can demand of
them. In his opening statement, counsel for the Grievors stated that in addition to the request for an order that the Employer cease requiring the Grievors to work more than 36.25 hours
per week, a claim was being made that the Grievors be paid overtime for the hours worked in excess of 36.25 hours per week together with interest from the date they 'were notified of
the change in the weekly hours of work (January 9, 1991). The basis for the remedy being sought was that the Employer should be found to be estopped from resiling from its representation
at the time of hire that the work week was 36.25 hours.
2 It was the position of both of the Grievors that at the time they were hired, the representatives of the Employer, in response to their seperate inquiries, informed them individually
that their hours of work would be 36.25 per week. Their interviews were conducted separately, and each of them informed the representatives of the Employer that they would not accept
the position offered to them if the hours of work were 40 per week. Neither the witnesses for the Employer nor its counsel took serious issue with the evidence of the Grievors relating
to their having been told at or about the time of their hire that their hours of work were to be 36.25 per week, as testified to by them. It was the evidence given on behalf of the Employer
that the actual hours of work were 40 per week and that any misrepresentation made was innocent and that there was never any intention on the part of the Employer to employ the Grievors
to work other than a 40 hour work week. It was not suggested that the representatives of the Employer had acted in bad faith. The evidence disclosed that from the time of their hire
(Ms. Sinisalo in 1989 and Ms. Coubrough in 1990), both Grievors believed that their obligations required them to work in accordance with the earlier representation on the basis of a
work week of 36.25 hours. The evidence further disclosed that both Grievors enjoyed a considerable degree of autonomy in establishing and maintaining E' their work schedules, their work
being performed with little direct
supervision, and that they frequently worked closer to 40 hours per week, although we are satisfied that this was because of their desire to keep up with their work load than because
they understood that their weekly hours of work were more than 36.25. The Employer does not appear to have appreciated the difference between itself and the Grievors with respect to
the number of hours to be worked in a week until early in January of 1991 when letters were written to each of the Grievors, January 9, 1991, informing them that their work week was
40 hours. The Employer was of the view that the Grievors always understood that their weekly hours of work were 40, that they had always worked a 40 hour work week, and that the said
letters to them did not alter but, rather, confirmed their weekly hours. The Grievors regarded the letters as an attempt on the part of the Employer to alter their weekly hours of work
from 36.25 to 40, and, accordingly, they filed the grievances above referred to. As an alternative argument, counsel for the Grievors stated that if we found that the Grievors had been
hired to work on the basis of a 40 hour work week, then they were entitled to relief based on a violation of art. 7.5 of the collective agreement: 7 . 5 Where the Employer adjusts the
number of hours per week on a schedule, the employee’s weekly salary based on his basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior
to such adjustment being made.
I 4 Counsel for the Grievors argued that the same process would be followed as applies under art. 7.6 of the collective agreement: 7.6 Where the Employer intends to transfer employees
or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union prior to such transfer. When the transfer occurs, the employee's weekly salary
based on his basic hourly rate shall be adjusted accordingly. If we find that the Grievors cannot rely on the representations made to them, then art. 7.5 cannot assist them. That article
would only apply where there was an adjustment in the number of hours per week. If the Grievors are found to have always been subject to the weekly hours for the Nurse 3 General classification,
which is 40, then their hours cannot be said to have been adjusted from 36.25 to 40 hours per week. We are satisfied that the Grievors, who were each hired as a Nurse 3 General, were,
pursuant to the provisions of reg. 881 of the Publ ic Service A c t Schedule 4 employees (O.Rea 411/90. s.6, part.). Art. 7.2 of the collective agreement deals with the hours of work
with respect to employees placed in schedules 4 and 4.7: 7.2 SCHEDULE 4 and 4.7 The normal hours of work schedules shall be forty eight (8) hours per day. for employees on these 40)
hours per week and In the job posting (Exhibit 51, the positi on is shown to be within "Schedule 4,7," although we are satisfied that the Grievors did not understand the significance
of this designation.
5 If we do not accept the arguments made by counsel for the Grievors, we would have to find that the Grievors, along with all other schedule 4 and 4 . 7 employees are required to work
40 hours per week. We would also note that there were errors in a number of position specifications relating to the Grievors' positions which showed their weekly hours of work to be
3 6 . 2 5 . However, we do not regard these as amounting to additional representations to them that the provisions in the collective agreement with respect to weekly hours of work would
not be adhered to. Among the positions taken on behalf of the Employer were the f ol lowing : 1. That the alleged agreement made at the time of hiring between the representatives of
the Employer and the Grievors could not bind the Employer. They were said to be invalid because they were inconsistent with the specific terms relating to the weekly hours of work for
employees classified as Nurse 3 General, who were in Schedule 4 and, pursuant to art. 7 . 2 of the collective agreement, on a 40 hour per week work schedule. 2 . That the alleged representation
made to the Grievors with respect to the weekly hours of work could not support an estoppel as the Grievors were not parties to the collective
6 agreement and no representation could be said to have been made to the Union. Counsel for the Grievors relied upon the decision of McGavin ster Ltd. v. Ainscough et al, (1975) 54 D.L.R.
(3d) 1, [1976 1 S.C.R. 718, 1975 5 W.W.R. 444, While acknowledging that since the decision of the Supreme Court of Canada in that case an employer may no longer enter into a contract
of employment with an individual employee who is represented by a trade union, Mr. Lukasiewicz relied on the statement of Laskin, C.J.C. at p.6 (D.L.R. ) The reality is, and has been
for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which
arise by reason of union security clauses in collective agreements. The common law as it applies to individual employment contracts is no longer relevant to employeremployee relations
governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated
between union and company as the principal parties thereto. Mr. Lukasiewicz submitted that what took place between the representatives of the Employer and the Grievors when the representations
with respect to the weekly hours of work were made fell within the exception noted by Mr. Justice Laskin, as it was made "at the hiring stage." Mr. Lukasiewicz also argued that such
"qualifications" as were referred to by Mr. Justice Laskin did not affect the result in this case as they did not "arise by reason of union security clauses in collective agreements"
nor did they deal
with similar matters. It was submitted that the representation was outside the boundaries of and not in conflict with the collective agreement and that it did not matter whether the
representation made by the Employer was made to the Grievors and not to the Union. We were then asked to find that all of the necessary elements needed to create an estoppel were present.
Mr. Lukasiewicz argued that the McGav in case held that "these contracts of employement were carried into the collective bargaining relationship between the grievors and the Ministry"
and that t he agreements between the grievors and the Ministry respecting hours of work per week do not offend the provisions of the collective agreement" adding : "Indeed, Article 7
. 5 of the Collective Agreement gives the Ministry the sole discretion to adjust each employee's hours per week. For the reasons that follow, we are unable to agree with Mr. Lukasiewicz.
Mr. Lukasiewicz submitted that the condition of hiring (that the weekly hours of work were 3 6 . 2 5 ) only represented a term or condition of the employees' contracts of hiring and
was not a condition of employment or a term or condition of the contract of employment. The reason for Mr. Lukasiewicz' distinction between contracts of hiring and contracts of employment
arose out of his concern that, subject to the situation applicable to a term or condition entered into as part of an employee's contract of hiring, the McGa vin case did not permit an
employer to enter into contracts
8 of employment with individual employees who were represented by a trade union. A similar situation arose in the case of Re Consolida ted-Bathurst Packaging Ltd. (Ha milton Plant (1980,
28 L . A . C . (2d) 230 (Brunner) at pp.233-4. The board in Consol idated-Bathurst at p.235, discussed the "contract of hiring" and "contract of employment" : At common law, it is we
think fair to say that the labels "contract of hiring" and "contract of service or personal service" were used quite interchangeably. In the first three editions of Halsbury's Laws of
England the terminology that is used is "contracts of hiring and service" but in the fourth edition of the same work (16 Hals., 4th ed., p.313, para. 501) the authors state that modern
usage requires a restatement of terminology so that contracts of hiring and service should now be known as "contracts of employment". See also in this regard Chitty on Contracts 23rd
ed. (1968) ("Specific Contracts"), pp. 325-6, which is to the same effect. It is perhaps technically accurate to say that contracts of employment which were formerly known as contracts
of hiring and service contained two distinct agreements, namely, the contract of hiring which established the relationship of employer and employee and the contract of service which
delineated the terms and conditions of the relationship. However that may be, it is not open to question that an agreement between two persons which establishes the relationship of employer
and employee is a contract for which the term "contract of hiring" is not inappropriate: see generally J.I. Case Co. V. Nation al Labor R (1944, 321 U.S. 332, and RE Telegram Publishing
Co. Ltd. and Zwelling [(1975) elations Board et al 67 D.L.R. (3d) 4041. Further, at p.236 of the Consolidated Bathurst case, the board stated: ... we think that the Labour Relations
Act] as a whole, and particularly the sections to which we have referred, make it clear that terms or conditions of employment are matters which must be dealt with by the collective
9 agreement following bargaining with the exclusive bargaining agent and cannot be the subject-matter of individual contracts between the employer and employee. We are supported in this
view by at least three decisions of the Supreme Court of Canada and one by the Court of Appeal for Ontario. The board then considered the case of Syndicat Ca tholique des s de Quebec.
Inc. V. Compagnie Paquet Ltee ( 1 9 5 9 ) , 18 D.L.R. ( 2 d ) 3 4 6 , 1959 S.C.R. 206, where Mr. Justice Judson, in speaking for the majority of the Court stated, at pp. 353-4 and 355
D.L.R., pp.212 and 214 S.C.R.: There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement,
freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant
relations. If the relation between employee and union were that of mandator and mandatory, the result would be that a collective agreement would be the equivalent of a bundle of individual
contracts between employer and employee negotiated by the union as agent for the employees. This seems to me to be a complete misapprehension of the nature of the juridical relation
involved in the collective agreement. The Union contracts not as agent or mandatory but as an independent contracting party and the contract it makes with the employer binds the employer
to regulate his master and servant relations according to the agreed terms. What the Court in Syndicat Catholique was concerned with is set out at p.237 of Consolidated Bathurst: It
will be seen from the first passage quoted that Judson J. left open the question whether matters not covered by the collective agreement could form the subject-matter of an individual
bargain between the employer and the employee
10 After considering C.P.R. Co V. Zambr i (1962), 34 D.L.R. (2d) 6 5 4 , the McGavin Toastmaster case (supra), Re Teleagam Publishing Co. Ltd. and Z welling et al (1975), 67 D.L.R. (3d)
404 (Ont. C . A . ) , Re Winnipeg Police Assoc. et al. and City of Winnipeg et al. (1979), 104 D.L.R. (3d) 656, the board concluded, at p . 2 4 0 : We take it to be implicit from the
[Labour Relations] Act and these decisions, that terms and conditions of employment must be negotiated or bargained between the exclusive bargaining agent and the employer and may not
be made the subject-matter of a contract, whether of hiring or employment, that is entered into between the employer and an employee individually. The terms and conditions of employment
must be those, and only those, contained in the collective agreement. If this is so, then the contract of hiring must of necessity be confined to matters other than terms or conditions
of employment. That is not to say of course that employers and employees may not enter into contracts at all. We think they can. They can become parties to any contract, be it a contract
of hiring or otherwise, provided such a contract does not contain terms and conditions of employment, matters which must be governed exclusively by the collective agreement. So, for
example, it would have been permissible for the contract of hiring to contain terms that would permit an employee to join the pension plan on a voluntary basis. However, when participation
in a pension plan is made a term or condition of employment, then the matter must be dealt with by the collective agreement. The board regarded its views as being in accord with those
expressed by Professor Bora Laskin, as he then was, in delivering an address to the annual conference of the Personnel Association of Greater Winnipeg, on March 22, 1963, entitled "Collective
Bargaining and Individual Rights" which is reproduced at 6 Can. Bar. Jo. 278, where he said (pp.280-1): The Union is perforce a principal party, and correlatively as its bargaining authority
is exclusive so is the bargaining right of individual employees precluded. Neither prior individual agreements nor
subsequently struck private bargains can stand against a union-employer collective agreement, save as such agreement, may permit, and this it rarely, if ever, does. Indeed, collective
bargaining legislation in the fairly common pattern in which it exists in Canada makes the collective agreement binding on the employee as well as upon the union and the employer. Nor
is there any possibility of arguing that an individual may freely bargain on such matters as are not covered by a collective agreement, although they might be susceptible to inclusion
if only union and employer could agree. I doubt whether in this country we would follow the American principle that an individual may treat with his employer on matters not embraced
in the collective agreement, at least until the union asserts its exclusive bargaining rights. struck settles the bargain between the parties for its term, and there is no continuing
obligation to bargain on matters which were either dropped or not brought forward. But this hardly supports a right to individual bargaining, although it may leave the employer free
to confer benefits not provided for in the collective agreement. With us, a collective agreement o n c e Even if it be the case that the individual has some freedom to negotiate outside
the limits of the collective agreement, it will not be very significant. The individual's interests are best protected at the bargaining table through his chosen representative spokesman,
and it is there that collective strength needs to be marshalled. In striking a bargain for all individuals who are or may come into the bargaining unit, the union and the employer establish
a set of employment conditions that cannot be tailored to individual preferences. There is little, if any room, for private deals. The board, in Consol idated-Bathurst , then examined
four awards which considered whether certain terms and conditions which were imposed on hiring were enforceable: Re Osha wa Times and Toronto Newspaper Guild Local 87 (1977, 14 L.A.C.
(2d) 375 (McLaren), Re Gra yF orging& S tampingsL td. Lt d. and Int'l. Union of Electrical R adio & Machine Workers, Local 557 (1978), 20 L.A.C. (2d) 278 (Gorsky), Re Globe & Mail Ltd.
and Toronto Newspaper Guild , (1978) 21 L.A.C.
12 (2d) 112 (Fox) [application for judicial review refused 23 L.A.C. (2d) 144 n (Ont. Div. Ct.)], and Re No va Scotia Ci vil Ser vice Com'n. and Nova Scotia Go V ernment Employees Assoc
(1980), 24 L.A.C. (2d) 319 (Christie). At p.246 of the Consolidate Bathurst case, the board stated: It would appear that the four arbitration awards referred Co. v. Nati onal Labor Relations
Board (1944) 321 U.S. 332, namely, that employees and employers may enter into individual contracts whether of hiring or employment, provided they are not inconsistent or incompatible
with the provisions of the collective agreement. This they say, is the effect of the judgements of the Supreme Court of Canada in the three cases already referred to. to, more or less
adopt the view enunciated in J. I Case At p.246, the board continued: As is obvious from our reasons, we are unable to agree with these views. In our opinion they proceed on an unduly
narrow reading of the decisions of the Supreme Court of Canada. It should also be noted that no reference was made in any of these awards to the judgment of the Ontario Court of Appeal
in Re Telegram Publishing co. L td. and Zwelling et al. (1975, 67 D.L.R. (3d) 404, 11 O.R. (2d) 740. On the facts of the case before it, the board in Consolidated-Bathurst found at pp.246-7:
If it should be held contrary to the reasons we have expressed that an employee may enter into a contract with an employer provided it is not inconsistent or incompatible with the collective
agreement, then we wish to record our view that we see nothing inconsistent or incompatible between the contract of hiring that was entered into by employees of this company and the
provisions of the collective agreement. Specifically we are unable to accept the contention of Mr. Goldblatt [union cousel that the deduction from the employee's
1 3 wages of the required contribution under the pension plan in effect reduces the wages to which he is entitled to under the collective agreement. We do not think that this is a diminution
of the employer's obligations under the collective agreement, to use the language of the Court in the J.I.Case Co. case, supra. It is a separate obligation which arises out of the contract
of hiring which stands on its own footing. In this regard we are Forging & Stampings L td., supra, where Mr. Goldblatt's submission was given effect to. not in agreement with the views
expressed in Re Gr ay Given its views, the board in Consolidated -Ba thur st concluded at p.247: It follows from these reasons, that we are of the opinion, that the right to "select"
and "hire" employees under art. 7.01 does not permit the company as a term or condition of employment and as part of the contract of hiring to impose a mandatory requirement that they
join the employer's pension plan and make contributions thereunder which are to be deducted from their wages. A declaration to that effect is hereby issued. For the purpose of deciding
the case before this Board, it is unnecessary to pursue the difference between the board in Consolida ted-Bathurst and the decisions that that case disagreed with, although we would
note that Brown and Beatty in Canadian Labour Abritration (4th Edn. at 2:1210, in referring to McGa vis, adopt the interpretation favoured by Mr. Brunner in Consolidated-Bathurst Under
the more restrictive rule pronounced in Consolidated Bathurst there would clearly be no basis to permit the Grievors and the Employer as part of the contract of hiring to establish a
weekly work week of 36.25 hours. Under the broader rule established by the four arbitration awards referred to in the Consolidated Bathurst case, the Grievors and the Employer might
14 "enter into individual contracts whether of hiring or employment, provided they are not inconsistent or incompatible with the provisions of the collective agreement." However, even
under those awards, the alleged agreement with respect to weekly hours of work was clearly incompatible with the provisions of the collective agreement when viewed in the light of the
provisions of the Public Service Act. Mr. Lukasiewicz, as noted above, did not regard the, "agreements between the grievors and the Ministry respecting hours of work per week" as being
inconsistent or incompatible with the provisions of the collective agreement, observing that art. 7.5 "gives the Ministry sole discretion to ad just each employee's hours per week."
As above noted, the Grievors were by virtue of the regulations to the Public Ser vice A& within, Schdule 4 , and the collective agreement (art. 7.2 establishes a "normal" 40 hour work
week for them. Article 7.5 does not deal with the adjustment "of each employee's hours per week" but with the adjustment "of hours per week on a schedule." The alleged "agreements" at
the time of hire cannot be viewed as an attempt to adjust hours per week on a schedule, if that is what Mr. Lukasiewicz suggests, but as an attempt to create provision with respect to
the normal number of hours to be worked in a week. In any event, the rights of the Employer under art. 7.5 cannot be viewed as ones where it has sole discretion, to the extent that the
adjustments must "be discussed with the Union prior to being made," It is evident that the
alleged actions f the Employer were not c rri t under or sanctioned by art 7.5, and the alleged agreement entered into at the time of hire cannot be regarded as being consistent with
or compatible with the provisions of the collective agreement. Under the collective agreement, the Grievors were under Schedule 4, where their normal hours of work per week were 40.
This could have been changed to 3 6 . 2 5 per week pursuant to art 7.5 after consultation with the Union. Indeed, Mr. Lukasiewicz does not suggest that the Employer adjusted the Grievor's
weekly hours pursuant to art. 7.5, as he stated: These contracts of employment were carried into the collective bargaining relationship between the grievors, the Union and the Ministry."
Assuming this to be the case, without having to decide if this is so, the "contracts" were incompatible with the provisions of art. 7.2, and the fact that adjustments could later be
effected by the Employer after consultation with the Union, cannot overcome the fact of the initial incompatibility of such an agreement with the the provisions of the collective agreement.
In the case of Re Wiresmith Ltd. and United S teelworkers (1988), 34 L.A.C. 104 (Brunner), in referring to the Consolidated Bathurst case, Mr. Brunner stated at pp. 110-11: I there concluded
that terms and conditions of employment must be negotiated or bargained between the exclusive bargaining agent and the employer and may not be made the subject-matter of a contract of
employment that is entered into between the employer and an employee individually and specifically wher e the indi vidual c ontract is inconsisten t or incompatible with the pro visions
of the collecti ve agreement (Emphasis supplied.)
16 Counsel for the Grievors relied on Baylis 1762/89 (Samuels) in support of his argument that an agreement between an employee and an employer at the time of hiring can be enforceable.
In that case (at p . 2 ) the grievor claimed that: "when he was first hired by the Ministry to work at the Metro West Detention Centre, he was promised a certain salary level on the
salary grid, and the Ministry did not live up to this promise." The Ministry raised an objection that the board did not have jurisdiction over this matter and based its objection on
the argument that, "at the time of the hearing, the Employer has full discretion to place and employee anywhere on the salary grid." The Board followed Neary 57/88 (Saltman) and stated,
at pp.2-3: ... The parties have a collective agreement establishing the salary rates. Though management has wide powers in the matter of placement of employees on the salary grid, and
therefore there are few opportunities for an employee to grieve placement successfully, nonetheless, placement on the salary grid is a matter of administration of the collective agreement.
And, pursuant to section 19(1) of the Crow n Empl oyees Collectii ve Bargaining Act a difference concerning the administration of a collective agreement may be referred to this Board
for determination. Section 19(1) reads: 19.-(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences
between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such
matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions,
shall decide the
matter and its decision is final and binding upon the parties and the employees covered by the agreement. This legislative provision makes clear this Board's broad jurisdiction to deal
with differences between the parties concerning the "interpretation, application, administration or alleged contravention of the agreement". Where there is such a difference, a grievor
has the right to put forward evidence and argument in support of the grievance. In our view, even in the absence of any specific language in the agreement, it is implicit in the collective
agreement that management will administer the collective agreement in good faith. For example, management cannot] engage in fraudulent misrepresentation with impunity. If, in order to
lure a prospective employee away from some other job, management promises an employee a certain salary level on the grid, and then, after the employee left the previous position and
came to work for the Ministry, the employee was paid at a lower level, in our view the employee would have recourse before this Board. This would be an example of bad faith in the administration
of the salary provisions of the collective agreement, and this Board has the authority to provide a remedy. The Baylis case does not support the position of the Grievors. The Board found
that it "was [implicit] in the collective agreement that management Iwouldl administer the collective agreement in good faith." It was on this basis that the board assumed jurisdiction
to hear evidence and argument with respect to allegations of bad faith. We were not faced with such a claim. Counsel for the Grievors, at the opening of his argument, recognized the
difficulty faced by him when he raised the question: "Does it make any difference that the alleged representation was made to the Grievors and not to the Union?"
18 In RE Wiresmith Ltd. and United St eelworkers supra the board had to consider whether a representation made by an employee declining premium pay for extra duties could bind the union,
the representation being contrary to the provisions of the collective agreement. At p.110 of the Wiresmith case, the board stated: As it was pointed out by Mr. Justice Reid speaking
on behalf of the Divisional Court in RE Metropo litan Toronto Civic Employees Union Loc. 43 C.U .P. P E. and Municipality of Metropolitan Toro nto [ ( 1 9 8 5 ) , 18 D.L.R. (4th) 409,
most of the cases that have reached the Divisional Court where the doctrine of promissory estoppel was in issue, have involved matters where the doctrine was applied on the basis of
the conduct of one party to another party of the same contract. Although in the Municipality of Metropolitan Toronto case the representations were made by the employer to the employees,
the matter was argued on the premise that if such representations led the union to forego an opportunity to attempt to negotiate the substance of the negotiations into an agreement the
doctrine could apply. ... At p.111 of the Wiresemith case, Mr. Brunner stated: In principle I can discern no reason why the doctrine of estoppel should not apply to a representation
made by a person who, although not a party to the agreement, is nevertheless bound by its terms, provided of course that there is detrimental reliance by the other party to the agreement.
In the Mun icipality of Metr opol itan Toronto, supra, Mr. Justice Reid recognized that a representation made by the employer to an employee on which the union relied to its detriment
would support the doctrine of estoppel. But he was not called upon to consider the reverse where the representor is the employee. At pp. 419-20 D.L.R., p. 135 O.A.C., he put the matter
this way: So far as I am aware, the doctrine of promissory estoppel has been applied only on the basis of the conduct of one party to a contract to another party. Employees represented
by a union are bound by but are not themselves parties to a collective agreement. If representations to employees leads. a union to forgo an opportunity to attempt to negotiate the substance
of the
19 negotiations into the agreement the doctrine could apply. But that is not this case. There is no evidence of that. In the case before us there has been no showing that the alleged
representation made by the Employer to the Grievors was relied upon by the Union to its detriment so as to support the doctrine of estoppel. Mr. Lukasiewicz endeavoured to avoid this
dilemma b y requesting that we treat the alleged representation as being outside of the collective agreement and as a matter covered by the agreement made at the moment of hiring referred
to in the McGa vin case. If it were possible to regard the agreement as a separate agreement between the Employer and the Grievors, a matter which we do not have to decide, we would
have no jurisdiction to adjudicate upon it. Cf. Brown and Beatty supra, at 2:1210 and cases referred to in note 7 . Mr. Lukasiewicz relied on the alleged representation as the foundation
for an estoppel argument which did not require it to be made to the Union. To the extent that the Grievors may be pursuing their claims based on their having achieved rights outside
of the collective agreement, we have no jurisdiction with respect to such matters and this would also apply to the claim for estoppel arising out of the alleged representation made at
the time of hiring where it does not affect the Union party to the collective agreement.
20 In the Wiresmitth case, at p.112, Mr. Brunner stated: As a matter of policy, it is my opinion, that the same rationale which precludes the enforcement of private bargains and negotiations
between employers and employees (see Conso lidated Bathurst Packaging Ltd (supra) applies also to a representation made by an employee on his own behalf which is inconsistent, at odds
or incompatible with the provision of the collective agreement and is relied upon by the employer to its detriment. To hold otherwise would in my view invite private bargains or deals
as between employers and employees which although not enforceable as a contract, might nevertheless give rise to an estoppel. There is in my view a close analogy between promissory estoppel
and a promise that has a Relating to Estoppel by Repre sentat ion, supra, the matter is put as follows at p.376: contractual effect. In Spencer Bower and Turner, The L aw When promissory
estoppel is invoked, the promise or assurance necessary to support it is inevitably less than a promise binding upon the parties in contract it would not be necessary to invoke the doctrine
of promissory estoppel at all if the promise had contractual force. But neverthele ss t he P romise supporting a promi ssory e stoppel i s closely analogous in many re spects to a pr
omise having contractual effe ct. (Emphasis in the original.) Mr. Lukasiewicz also relied upon Hanwell 509/82 (Swan). In that case the grievor had commenced employment with the Government
of Ontario in May of 1973, and in April of 1982 was a Probation Officer 2 in the Brampton District Office. Some time after April 2 6 , 1982 and before May 7, 1982 he applied for a Probation
Officer 2 position in accordance with the job competition. At the conclusion of the competition he was awarded the job. The parties agreed that at the time of the competition there was
a policy on relocation expenses found in the Ontario Manual of Administration. They also agreed that since the inception of collective bargaining,
21 the policy referred to or one very similar to it had been applied to employees who successfully achieved promotion under art. 4 of the collective agreement. The Grievor received a
letter dated March 7, 1983 that spoke to the issue of relocation costs and the parties agreed that there was a Memorandum of Agreement between OPSEU and the Ministry of Correctional
Services and it did not speak to the issue of relocation expenses. The essence of the dispute was whether or not there was estoppel by conduct by the Employer or Employee. The Union
argued that, by implication from the collective agreement and by incorporation of the Employer's policy by reference into the collective agreement, the grievor was entitled to payment
of relocation expenses in the circumstances of the case. In the alternative, the Union argued that the Employer was estopped from denying that the grievor was entitled to relocation
expenses, relying upon the expanded scope of the doctrine of estoppel described in C Telecommunications Un ion. (1981), 4 L.A.C. (3d) 205 (Beatty), upheld by the Ontario Divisional Court
in Re C.N.R. Co.. et al. and Beatty et al. (1981), 34 O.R. (2d) 385. The Employer objected to the Board exercising any jurisdiction in the case on the basis that whatever rights the
grievor might have, they came from a document which did not form a part of the collective agreement and which was subject to interpretation and application at the discretion of management
only.
22 The evidence that the Union relied upon to establish an estoppel involved representations made to the Union in the course of negotiating the first collective agreement between the
parties (at p . 7 ) . Moreover, the facts relied upon as creating an estoppel were based on representations made by the Employer and reliance on them by the Union (at p . 1 3 ) . It
is also interesting to note the comments of the Board in the Hanwell case at pp.14-15 relating to the problem where a party argues that an estoppel should incorporate an extrinsic document
into a collective agreement for the purpose of vesting an arbitrator with jurisdiction to interpret that document. In grappling with this difficult point the Board stated: The doctrine
of estoppel seems only to go so far as to prohibit the Employer from withdrawing its policy and its application according to its terms to Article 4 . There has never been any suggestion
in any of the case law that an estoppel can incorporate an extrinsic document into a collective agreement for the purpose of vesting an arbitrator with jurisdiction to interpret that
document, and we would be extremely reluctant in going so far, as we pointed out to the parties in the course of argument. Estoppel is essentially a factual matter, and does not usually
have the effect of vesting jurisdiction in a decision maker that was not there to begin with; many of the cases, indeed, suggest that estoppel cannot be the source of an adjudicative
jurisdiction. While this has given us very considerable difficulty, we think that the doctrine of estoppel is designed to bind the party to the collective agreement to behave in a certain
way for so long as the estoppel continues. In many cases, even under the more conservative view of the doctrine of estoppel followed .before the CN/CP case, arbitrators have held one
party to be bound by a representation that it would accept a particular interpretation of a provision of the collective agreement. In the case before us, we think that what the Employer
has represented to the Union is that it will be
23 bound not only by the policy but also by the practice under the policy in particular cases. No matter how liberal an interpretation one gives to the CN/CP case, there has been no
representation to the Union in this case that the Employer would accept a particular interpretation of a provision of the collective agreement. Mr. Lukasiewicz endeavoured to have us
read certain language found in the CN/CP case at p.241 D.L.R. in a manner that would overcome the difficulty adverted to by Mr. Swan in the Han well case: The employer argued also that
even if the doctrine of estoppel could be applied, its position as a successor employer relieved it of any other obligations other than those found in the strict wording of the agreement.
To this the arbitrator replied that s . 144 of the labour Code providing that a successor employer bound by any collecti ve agreem ent tha t is d in the busine s s . . does not mean
bound only by the written terms of such agreement. In th e view of t he arbitrat or, that provision as "embracing any obligations tha t ari Se out of and are related to those terms of
the agreement t even if they are not expressly s et out in writing In other words, the employer must accept the agreement to which it succeeds subject to all the equities, if any, that
attach to such agreement. The arbitrator has exclusive jurisdiction to decide all questions arising out of the application of the collective agreement. He has found that in its application
the agreement is subject to the restriction which the employer has itself created by its longstanding practice of payment, notwithstanding the waiting period provided for in the written
terms of the agreement. We can find nothing in his findings of fact or his conclusion that would permit us to interfere with his award unless, as submitted by the applicants, the arbitrator
was wrong in his statement that it is too late
24 in the day to exclude the doctrine of estoppel by conduct from application to collective labour agreements. (Emphasis added.) The limitations on what appears to be very broad language
can be seen from an examination of what the Court stated at p.245 D.L.R.: The reliance by the union on the company's longestablished practice and the company's failure to indicate or
request any change in that practice led the union not to make any proposals on its part regarding the maintenance or the alteration of that practice and represented an act by the union
to its detriment. That act justified the invocation of the doctrine. We cannot read the words relied upon by Mr. Lukasiewicz as holding that the Employer is estopped from insisting that
the Grievors work the hours mandated by the collective agreement. In this case there is no evidence of any reliance by the Union on any representation so as to justify the invocation
of the doctrine. Mr. Lukasiewicz also relied on the case of Re Pacific Press Ltd. and Vancouver -New Westmin ster Newspaper G uild. LOC. 11 5 (1987, 31 L.A.C. (3d) 411 (Munroe). In that
case the board stated, at p.419: It is now well established that the doctrine of estoppel is applicable to the grievance arbitration setting. Nor is that in dispute. What is in dispute
is the nature of the representation made to the grievor in January, 1984. There is no dispute that something was said to the grievor upon which he acted to his eventual detriment. Nor
can there be any doubt that the grievor was intended to act upon what was said to him --i.e., to forego the offer from The Province. The nub of what is required of me, then, is an objective
appraisal of the nature of what was said by Smith to the grievor in mid-January, 1984.
(Emphasis in the original.) The issue in the Pacific Press case (at p . 4 1 2 ) was: "Was the grievor a permanent employee on staff as of March 1, 1 9 8 4 , within the meaning and intendment
of the foregoing provision? If not, is the company's estopped from denying that the grievor held such an employment status as of that date?". In the CN/CP case, at p . 2 4 1 D.L.R.,
in explaining the doctrine of estoppel by conduct, the court referred to the fact that Denning L. J. in Combe v. Combe [1951 1 A l l . E.R. 767 that the doctrine was only applicable
where the parties h a d already entered into a definite and legal contractual or analogous relationship, when there exists some conduct or promise which induces the other party to believe
that the strict legal rights under the contract will not be enforced or will be kept in suspense and that 'having regard to the dealings which have taken place between the parties' it
will be inequitable to allow that party to enforce their strict legal rights. In the case before us, the representations made to the Grievors did not induce the Union "to believe that
the strict legal rights under the contract would not be enforced or would be kept in suspense ... In fact, when the representation was made it could not have induced the Grievors, treating
them as the other parties, to believe that the strict legal rights under the collective agreement would not be enforced or would be kept in suspense. It is clear from the evidence that
they did not know what the strict legal rights under the collective agreement were at the time of hire.
26 We believe that the parties recognize the dangers outlined by Mr. Brunner in Wiresmith, should our decision have permitted the creation of contractual obligations which conflict or
are inconsistent with provisions found in the collective agreement or to have recognized the existence of an estoppel to which the Union was not a party. In summary: 1. The alleged representation
with respect to the weekly hours of work made by representatives of the Employer to the Grievors at the time when each of them was hired conflicts with the provisions with respect to
normal weekly hours provided for in the collective agreement and cannot result in the variance of the terms of the collective agreement. 2 . The Union's argument based on estoppel cannot
succeed as the alleged representation was not made to a party to the collective agreement nor, can it be shown that the Union was in any way adversely affected by the representation.
3 . Even if the provision with respect to weekly hours contained in the representation made to the Grievors could result in an obligation being owed to them by the Employer outside of
the terms of the collective agreement, this Board has no jurisdiction to deal with such a claim.
4. The same result follows from the invocatlon of promissory estoppel based on the alleged representation which do not involve the Union, being the other party to the collective agreement.
Accordingly, for the above reasons, the grievances must be dismissed. Dated at Toronto this 9th day of January, 1992. M. Gorsky Vice Chairperson