HomeMy WebLinkAbout2015-2664.Union.16-10-02 Decision
Crown Employees
Grievance Settlement
Board
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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Téléc. : (416) 326-1396
GSB#2015-2664
UNION#2015-0999-0042
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Ministry of Government and Consumer Services) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Susan Ursel, (Counsel)
Kristen Allen, (Counsel)’
Ursel Phillips Fellows Hopkinson
Barristers & Solicitors
FOR THE EMPLOYER Paul Meier, (Counsel)
Cathy Phan, (Counsel)
Treasury Board Secretariat
Legal Services Branch
HEARING May 11, 13; August 30 and September 1, 2016.
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PRELIMINARY DECISION
[1] This decision relates to a motion advanced by the employer for bifurcation of
the proceeding. Before turning to the legal submissions on the motion itself, it
is necessary to briefly review the relevant background facts. The union
grievance dated December 17, 2015 before the Board reads:
The Union grieves the Employer has violated the OPS Collective
Agreement, including but not limited to Articles, 2, 3, 20, 32, 35, 36,
37, 39, 40, 63, 64, 65, 67, 68 UN 16, COR17, Appendix 11,
Appendix 20, the OPS Benefits Booklet, and any other such Act,
Regulation or grounds as the Union may advise in relation to the
Employer’s announcement that its intention is to unilaterally
cease/alter the coverage of post-retirement benefits effective
January 1, 2017. Further, the Employer is estopped from any such
action based on its past practices. Finally, the Employer has failed
to provide any supporting documentation or demonstration of its
announced unilateral changes.
SETTLEMENT DESIRED
Full redress including but not limited to:
1. An order to cease & desist.
2. An order to comply with the Collective Agreement and a
declaration of the violation.
3. An order that the Employer is estopped from both making the
announcement and carrying out any of its stated intentions.
4. An order that any individual detrimentally affected by the
employer’s actions be properly compensated.
5. Any such other relief as the Union may advise.
[2] The grievance followed a letter of notice dated February 18, 2014 from the
Assistant Deputy Minister, Employee Relations Division, HR Ontario, Ministry of
Government Services, to the President of the Union. It reads:
Re: Post-Retirement Insured Benefits Changes – Eligibility
Criteria and Premium Cost Sharing
I am writing to notify you that the Government intends to make
changes to the post-retirement insured benefits (retiree benefits)
applicable to certain persons who will receive a pension under the
Public Service Pension Plan (PSPP) or the OPSEU Pension Plan.
This would include changes to the retiree benefits eligibility
requirements as well as the introduction of premium cost sharing
effective January 1, 2017.
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Currently, the government provides health, dental and $2000 in
basic life insurance benefits to former employees in receipt of a
pension under the PSPP or OPSEU Pension Plan based on at least
10 years of pension credit. Retiree benefits are not a provision of
the Public Service Pension Plan or the OPSEU Pension Plan, nor
are they a pension benefit.
The changes would require members who do not have 10 years
pension credit in the pension plans by January 1, 2017, to meet the
following two criteria in order to qualify for retiree benefits:
Have at least 20 years of pension credit; and
Retire to an immediate unreduced pension.
Further, any eligible member who has not commenced receipt of a
pension before January 1, 2017, would be required to pay 50 per
cent of the retiree benefits premium costs to participate in the
benefit plan.
These changes to the retires benefits terms would apply to Ontario
Public Service employees and eligible employees of other
employers with membership in the PSPP or OPSEU pension plans,
including former employees who are deferred pensioners, who are
not in receipt of a pension before January 1, 2017.
OPS bargaining agents are being notified in advance of formal
communication to employees on February 18, 2014.
Communication material including an updated retiree benefits guide
would be developed and distributed in the months leading up to
January 1, 2017.
[3] Commencing in April 2014, representatives of the union and the employer met
several times and discussed the announced changes. In the meantime,
between April 2014 and January 2016, over 1300 individual grievances and
group grievances were filed, in addition to the instant union grievance. The
fundamental dispute between the parties is clear in the union grievance. The
employer’s position is that Post Retirement Benefits (hereinafter “PRB”) are not
a negotiated benefit forming part of the collective agreement, and that therefore,
it is entitled to unilaterally change its terms. The union on the other hand
asserts that the terms relating PRB may only be changed through negotiation
with the union. While conceding that there is no explicit provision in the
collective agreement extending PRB to retirees, particularly relying upon a
historical link between the benefits for active employees negotiated in the
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collective agreement and the PRB extended to retirees, the union takes the
position that PRB are implicitly incorporated in the collective agreement.
[4] Besides the “implicit incorporation” argument, however, the union also alleges
that the employer’s proposed changes to PRB contravene a number of
provisions of the collective agreement. It asserts that the employer violated
article 1.1 by failing to recognize OPSEU as the exclusive bargaining agent for
its members, that it violated article 2.1 by an unreasonable exercise of its
management rights, and that the employer violated article 3.1 of the collective
agreement and the Ontario Human Rights Code, by discriminating on the basis
of the age. It is also alleged that the employer would be in violation of Appendix
11 to the collective agreement, which is a letter from the employer to the union,
wherein it agrees that it does not intend to amend “the OPSEU Pension Plan or
any related documents” during the term of the central collective agreement, and
that any changes will be negotiated with the union. The union further claims
that the employer is in breach of article UN16.2 (unified) and CR17.3
(corrections) by failing to comply with the obligation to cooperate with the
union..
[5] When the Board convened, Ms. Ursel for the union, and Mr. Meier for the
employer, made extensive opening statements setting out their respective
positions on the various allegations. Ms. Ursel categorized the union’s
allegations under 6 theories. They were described as follows:
(1) Orders-in-Council (hereinafter “OIC”) which extend PRB to retirees
and Benefits Guides are “related documents to the pension plan”.
Therefore, Appendix 11 prohibits the employer from amending those
without negotiating with the union.
(2) PRB are a form of deferred compensation for bargaining unit
employees, and are implicitly included in the collective agreement as
part of their terms of employment. In other words, PRB are implicitly
incorporated in the collective agreement through its obligations to
active employees.
(3) Article 39.6 provides:
The Employer shall make available to employees an information
booklet with periodic updates, when necessary, within a
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reasonable period of time following the signing of a new collective
agreement or following major alterations to the Plans.
When article 39.6 is read in the context of the evidence of the history
of PRB, it incorporates the benefits guide in the collective agreement
by reference. Therefore, its content may not be changed unilaterally
by the employer.
(4) While the announced changes appear to be neutral they are
discriminatory on the basis of age in application. Therefore, it
violates article 3 and the Human Rights Code.
(5) The unilateral action by the employer is an unreasonable exercise of
its management rights under article 2, in that it infringes on the terms
set out in Appendix 11 to the collective agreement.
(6) The employer has had a practice of negotiating for changes to PRB
with the union. That constitutes a representation on which the union
relied upon to its detriment. Therefore, the employer is estopped
from asserting that it is entitled to unilaterally change PRB. It has
also made similar representations directly to employees through the
Benefits Guide.
[6] Counsel for the employer submitted that the Board should bifurcate the hearing.
It should first hear and dispose of a motion he wished to put forward to the
effect that the union has not made out a prima facie case for any of its
allegations based on terms of the collective agreement. He would, therefore, be
submitting that the Board should dismiss all of the “contractual claims” the union
has asserted on the basis that it has not made out a prima facie case that any
contractual right has been violated even based on the facts it has asserted.
Once the motion is dealt with, the Board can proceed to hear and determine the
remaining issues in the grievance. Ms. Allen, who made submissions for the
union on the motion for bifurcation, took the position that all of the issues and
allegations raised by the union in the grievance should be dealt with together
with no bifurcation.
[7] On agreement, the union proceeded first with its submissions on the employer’s
motion for bifurcation. She reviewed the six theories the union relies on, and
the evidence it intends to call to substantiate them. She stated that evidence will
cover a period of over 40 years, starting with the period prior to 1972 under the
legislative scheme of the Public Service Act, when all terms and conditions of
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employment for members of the Civil Service Association of Ontario
(predecessor of OPSEU), were under OIC’s. Then in 1972 the Crown
Employees Collective Bargaining Act was enacted, extending to civil servants
the right to collective bargaining. However, under that Act superannuation was
made non-bargainable. The union witnesses, particularly Mr. Bob Hebdon
(OPSEU Senior Research Officer 1968-72) and Mr. Andy Todd (OPSEU Chief
Negotiator 1972-2002), would be testifying to the effect that at the time both
parties understood that PRB are tied to pensions, and therefore non-
bargainable. Ms. Allen submitted that the evidence will establish that PRB were
dealt with through OIC’s, not because they were benefits extended gratuitously
by the employer. Rather, OIC’s were used as a way of getting around the
legislative provision which made PRB non-bargainable in collective bargaining.
[8] The first OIC to provide for PRB was in 1974. Ms. Allen submitted that
evidence will establish that since then, for 40 years OIC’s have been issued
from time to time amending the terms of PRB, and that all such changes were
directly linked to terms negotiated with OPSEU for active employees. The
parties understood that changes negotiated for active employees would result in
corresponding changes in PRB for retirees. The OIC itself explicitly makes that
link between benefits for active employees and PRB.
[9] Counsel stated that there will be evidence called to establish that in the 2008
round of collective bargaining the employer tabled a proposal to increase the
eligibility requirement for PRB from 10 to 15 years. The union objected and
made a counter proposal. Ultimately a collective agreement was concluded
with no amendment to the eligibility requirement. Based on this evidence the
union would be arguing that if the employer believed that PRB were gratuitous,
it would have simply implemented the change it wanted. It would not have
raised it at the bargaining table and backed off when the union objected.
[10] Ms. Allen further submitted that the union would be adducing evidence that the
employer has made legal representations in various documents that PRB are
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negotiated. This includes statements set out in the Benefits Guide provided to
employees.
[11] The union relied on the following authorities on the issue of bifurcation:
Canadian Broadcasting Corp and C.U.P.E. (Broadcast Council) [1991] 22 LAC
(4th) 9 (Thorne); Ontario Liquor Board Employees’ Union v Ontario (Liquor
Control Board) (East Grievance, [2005]¸142 LAC (4th) 442 (Dissanayake);
Police Assn. of Nova Scotia v. Amherst (Town) (Hicks Grievance), [2011]¸207
LAC (4th) 89 (Richardson); Halifax Regional School Board and N.S.T.U. (Daye)
[2002]¸116 LAC (4th) 412 (MacDonald); Cargill Foods, a Division of Cargill Ltd.
v. United Food & Commercial Workers Union of Canada, Local 175 (Pizzorusso
Grievance), [2009]¸185 LAC (4th) 167 (Marcotte).
[12] Counsel pointed out that the employer has conceded that even if its proposed
no prima facie case motion is successful, the union’s claim based on Appendix
11, as well as its estoppel argument would survive, and would have to be
litigated. In relation to Appendix 11, the union’s evidence through Mr. Todd
would be to the effect that there were rumours circulating that the employer was
planning changes to PRB. The union and the employer met and discussed the
union’s concerns about the rumours. OIC’s relating to PRB and the Benefits
Guides were explicitly discussed. Appendix 11 resulted from these discussions
as a written commitment by the employer. She noted that in his opening
statement, employer counsel stated that Mr. Kevin Wilson will be denying that
any discussion about PRB took place, and would testify that he never
understood that Appendix 11 had anything to do with PRB.
[13] Union counsel pointed out that in his opening statement employer counsel
relied on negotiations and proposals that were exchanged during the 1989
collective bargaining just prior to the execution of Appendix 11. He also made
references to the 2008 collective bargaining. Therefore, it is clear that the
employer is also relying on extrinsic evidence. The union would be also relying
on that extrinsic evidence, including evidence about the 2002 round of collective
bargaining. Ms. Allen submitted that the Board, therefore, will have to hear
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extensive evidence relating to multiple past rounds of collective bargaining in
dealing with the union’s claim based on Appendix 11. She submitted that in
addition, the Board will hear extensive evidence about the link between OIC’s
and the Benefits Guide to support the union’s position that OIC’s and Benefits
Guides are “related documents to the Pension Plan”, which may not be
changed without negotiating with the union under Appendix 11.
[14] Counsel pointed out that in determining the union’s estoppel argument, the
Board would have to consider whether the elements of an estoppel are present.
Citing Re SPAR Professional Allied and Technical Employees’ Assn v.
McDonald, Dettwiller and Associates Inc., [2014] O.L.A.A. No. 274 (Shime), she
submitted that the Board cannot determine whether OIC’s and Benefits Guides
contained representations by the employer that PRB are negotiated benefits, by
simply reading those documents. They should be read together with contextual
evidence, including evidence as to what employees understood from
statements in those documents. That evidence would be critical for the union to
establish the representation, as well as detrimental reliance. She noted that
employer counsel stated in his opening statement that no reasonable employee
would understand the statements in the Guide as a representation by the
employer that PRB are negotiated because active employees’ and pensioners’
entitlements are dealt with in separate sections. The union’s evidence will
contradict that assertion.
[15] Counsel pointed out further that the employer has asserted that prior to the
2015 collective bargaining, the union had received notice of the changes to
PRB, and yet it made no proposals relating to PRB. Counsel submitted that the
union will be leading evidence to explain why it did not make proposals at the
time.
[16] Based on the foregoing, union counsel submitted that there would be significant
overlap between the evidence led in relation to the union’s contractual claims
which would be subject to the proposed no prima facie case motion, and the
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claims the Board will have to adjudicate upon regardless of the outcome of the
motion.
[17] Counsel pointed out that another claim the Board will be required to deal with,
regardless of the outcome of the employer’s proposed no prima facie case
motion, is the allegation of discrimination on the basis of age. In that regard, to
understand the discriminatory impact of the proposed changes, the Board will
hear from employees about the impact on their retirement and financial
planning. Statistical evidence will be led show that the changes impact more
negatively on older workers. Individual workers will testify that in order to
preserve access to PRB they had to retire earlier than planned. This evidence
also overlaps with the evidence on the estoppel issue. Therefore, there will be
little to gain by bifurcation of the hearing.
[18] Counsel submitted that the union’s allegation that article 2, the management
rights clause, was violated is not an independent claim. It is directly linked to its
allegation that Appendix 11 and article 3 were contravened. Therefore, the
same evidence will be relevant on both issues. That would be relevant also for
estoppel. Therefore, it would make no sense to hear each of these claims
separately.
[19] Counsel submitted that due to the commonality of evidence, the most efficient
and expedious process is to hear all of the claims together. Hearing the no
prima facie case motion on the contractual claims first, and then hearing the
remaining claims one by one, as the employer suggests, would not be efficient.
There would be the real risk that the Board will hear from the same witnesses
multiple times. Potentially, Mr. Todd will have to be called three separate times,
and Mr. Hebdon twice. Counsel urged the Board to also consider the fact that
many of the individuals who would be testifying are retirees. Mr. Hebdon left
back in 1992 and lives in Montreal. His evidence is important for the union.
[20] Counsel submitted that in adjudicating labour relations issues, fairness and
promotion of harmonious labour relations should be paramount considerations.
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This dispute affects the whole bargaining unit. Thousands of civil servants have
decided to retire prior to January 1, 2017 in order to preserve access to PRB.
Therefore, fairness and harmonious labour relations would be achieved only by
hearing all of the claims the union has asserted on their merits.
[21] Employer Submissions
The employer’s proposed no prima facie case motion is to the effect that all of
the union’s contractual claims are unsubstantiated because there is nothing in
the collective agreement to support any of the claims. The announced changes
to PRB would not impact on any collective agreement rights. Therefore, the
Board is without jurisdiction to hear them. The Board should dismiss those, and
then proceed to hear the remaining claims properly before it.
[22] Counsel reviewed in detail the submission he would be making in the “no prima
facie case” motion. He argued that the Board would be convinced by those
submissions, and would dismiss the union’s contractual claims. As a result
many days of evidence would be avoided. The Board can rule on the motion by
simply interpreting the express provisions of the collective agreement, based on
the plain and ordinary meaning of the language the parties have used.
[23] Counsel cited Palmer & Snyder, Collective Agreement Arbitration in Canada,
(5th Ed) at 2.10, quoting from Massey-Harris, (1953), 4 L.A.C. 1579 at 1580
(Gale) as follows:
…We ascertain the meaning of what is written into [a] clause and to
give effect to the intention of the signatories to the Agreement as so
expressed. If, on its face, the clause is logical and is unambiguous,
we are required to apply its language in the apparent sense in
which it is used notwithstanding that the result may be obnoxious to
one side or the other. In those circumstances it would be wrong for
us to guess that some effect other than that indicated by the
language therein contained was contemplated or to add words to
accomplish a different result.
He also cited Brown & Beatty, Canadian Labour Arbitration at 4.2100 as
follows:
4:2100 – The Object of Construction: Intention of the Parties
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It has often been stated that the fundamental object in construing the
terms of a collective agreement is to discover the intention of the parties
who agreed to it.
As one arbitrator, quoting from Halsbury’s Laws of England, stated in an early
award:
The object of all interpretation of a written instrument is to discover
the intention of the author, the written declaration of whose mind it
is always considered to be. Consequently, the construction must
be as near to the minds and apparent intention of the parties as is
possible, and as the law will permit.
And further:
But the intention must be gathered from the written instrument. The
function of the Court is to ascertain what the parties meant by the
words they have used; to declare the meaning of what is written in
the instrument, not of what was intended to have been written; to
give effect to the intention as expressed, the expressed meaning
being, for the purpose of interpretation, equivalent to the intention.
A more recent articulation of the proper approach has been as
follows:
The modern Canadian approach to interpreting agreements
(including collective agreements) and legislation is encompassed
by the modern principle of interpretation which, for collective
agreement, is:
In the interpretation of collective agreements, their
words must be read in their entire context, in their
grammatical and ordinary sense, harmoniously with
the scheme of the agreement, its object and the
intention of the parties.
And, in determining the intention of the parties, the cardinal presumption
is that the parties are assumed to have intended what they have said,
and that the meaning of the collective agreement is to be sought in its
express provisions.
(Foot-notes omitted)
[24] Employer counsel submitted that if on a plain reading the collective agreement
can reasonably be interpreted to mean that the provisions the union relies on
only apply to active employees, effect must be given to that intention of the
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parties. That expressed intention cannot be changed based on inferences
derived from extrinsic evidence. He cited this Board’s decision in Re Metrolinx
– Go Transit, 2010-2210 (Dissanayake) at para. 9, where it wrote:
Moreover, where there is no ambiguity in meaning, the language
must be given effect to, regardless of the Board’s opinion on the
fairness of the result. The initial obligation on the Board is to see if
meaning could be given to the expressed language in article 2.1. If
that is possible, it must be assumed that the parties intended what
they have agreed to.
[25] Much of employer counsel’s submissions that followed were to the effect that
the language in the various articles in the collective agreement the union relies
on in support of its contractual claims, when given its plain and ordinary
meaning, cannot be interpreted to mean that those provisions apply to anyone
other than active employees. Counsel also proceeded to make submissions as
to why each of the union’s proposed arguments of “implicit incorporation” are
without any merit. He submitted that “the issue before the Board is one of
interpretation of the collective agreement. The allegations based on the facts
asserted by the union are irrelevant.” He cited the decisions in Re Couture,
2008-3329 (Dissanayake) and Re OPSEU and MGS 2010-0405 (Abramsky) as
examples where the Board upheld motions of no prima facie case based on the
express language in the collective agreement. I will not address in this decision,
the merits of the employer’s proposed motion for dismissal of the union’s
contractual claims for lack of a prima facie case. The issue presently before the
Board is to determine the process. That is, whether to bifurcate as the
employer suggests, or to hear all issues together in one hearing as the union
submits.
[26] The employer’s book of authorities included the following decisions on the issue
of bifurcation. Re Magee, 2006-1918 (Dissanayake); Re Stewart et al 1999/98
(Harris); Re Alcan Canada Products Ltd., (1974) 5 L.A.C. (2d) 300 (Weatherill);
Re Cherubini Metal Works Ltd., (2008) 172 L.A.C. (4th) 1 (Christie); Re
Municipality of Metropolitan Toronto, (1991) 22 C.L.A.S. 3 (Hunter)
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DECISION
[27] S. 48(1) of the Crown Employees Collective Bargaining Act provides that the
Board “Shall determine its own practice and procedure, but shall give full
opportunity to the parties to any proceeding to present their evidence and to
make submissions”. In exercising this statutory power in relation to the issue of
bifurcation, the Board is required to take into account practical considerations
such as economy of time, resources and expenses. However, those
considerations must be subject to the statutory obligation to give to the parties,
the full opportunity to present their evidence and submissions. There has to be
a balancing of considerations of savings and efficiency on the one hand, and
fairness on the other hand.
[28] In Re East and L.C.B.O., (2005) 142 L.A.C. (4th) 442 (Dissanayake), the Board
reviewed the case law, including the following statement by Vice-Chair Harris in
Re Stewart (supra) at para.8:
In deciding whether to bifurcate proceedings the Board seeks to
maximize efficiency in the hearing process. If the early resolution
of an issue may be dispositive of the matters before it, then
bifurcation is a useful procedural tool, provided there is no
unfairness to any party in following such a procedure.
In Re East, the union claimed that the discharge of the grievor was void ab initio
because the employer had contravened article 26.3 by meeting with the grievor
without union representation. The union moved that the Board decide, as a
preliminary matter, whether there had been a breach of article 26.3. The
employer objected.
[29] The employer took the position that the meeting without union representation
the union relies on was not “for the purpose of discussing a matter which may
result in disciplinary action being taken against the employee” within the
meaning of article 26.3. That meeting was not related to its investigation on the
grievor’s conduct that led to his discharge, but was about an accommodation
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issue. The Employer submitted that it would have to lead evidence about its
entire investigation to demonstrate that the meeting was not part of it. He
submitted that in the circumstances bifurcation of the article 26.3 issue would
not result in any efficiency, but would result in additional hearing time and
duplication of evidence.
[30] The Board, citing prior decisions, confirmed that the rights conferred by article
26.3 are substantive and not procedural, and that where there is a breach of
that provision the resulting remedy is a declaration that the discipline is void ab
initio. At para. 13-15 it stated as follows in denying the union’s motion for
bifurcation:
13 What is clear from the case law is that the decision to bifurcate
depends in each case, upon the considerations of practicality,
economy and efficiency and fairness. The decision must be made on
the basis of the respective counsel’s submissions as to what positions
it would take on the union representation issue. I agree with union
counsel that article 26.3 is broader than the provision in Re City of
Toronto. Counsel submitted that in the present case, it would not be
necessary for the union to establish that the employer intended to
discuss any disciplinary issues at the February 3rd meeting or that the
employer actually took into account anything that occurred at that
meeting in deciding to terminate the grievor. Nevertheless, counsel
asserted also that the evidence will show that the February 3 meeting
was a continuation of the employer’s investigation. He thus submitted
that for the article 26.3 issue, it was “key” that in January 2005 the
employer had commenced a disciplinary investigation of the grievor.
He submitted that the evidence will be clear that “the purpose of the
meeting was to discuss a matter which may lead to discipline and that
in fact it did lead to discipline.” Counsel submitted that following the
February 3rd meeting with no union representation, the employer
convened a formal disciplinary meeting with union representation on
February 23, 2005. The evidence will be that the employer directly
relied upon and compared the statements the grievor had made on
February 3rd with what was disclosed on the surveillance tapes in
coming to the conclusion that the grievor had “lied”, which led to the
decision to discharge the grievor.
14 Based on his opening statement and submissions on the motion to
bifurcate, it is clear that the union was asserting that there was a direct
link between the February 3rd meeting and the employer’s disciplinary
investigation of the grievor, and further that the employer relied upon
statements made by the grievor on February 3rd in determining that the
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grievor was guilty of misrepresentation, which in turn led to his
discharge.
15 I have determined that given that position of the union, the
employer is entitled to establish its contrary position that there was a
total disconnect between the February 3rd meeting and the disciplinary
process by demonstrating what the total investigation consisted of.
While bifurcation would avoid dealing with certain issues such as the
dispute as to the admissibility of the surveillance evidence, I have
determined that in balancing the limited potential for gaining efficiency
with the need for fairness, the overall considerations do not favour
bifurcation in the particular circumstances of this case.
[31] In Re East (supra) I observed that in making the decision on bifurcation the
Board has to rely on the opening statements of counsel. In Re Police Assn of
Nova Scotia v. Amherst Town (supra) the Board alluded to the implications of
having to rely on opening statements. At para 31-36 it wrote:
31 The principle of “speedy relief” does, however, support bifurcation
in an appropriate case. Where a ruling on a preliminary objection
would, if successful, avoid days if not weeks of evidence – or where
the issues on the preliminary objection are separate and distinct from
those that would have to be argued and considered on the merits –
there is much to be said for bifurcation: see for e.g., Cherubini Metal
Works Ltd. and USWA, local 4122 (2008) 172 LAC (4th) 1 (Christie) at
pp. 28-29; Canadian Broadcasting Corp and CUPE (Broadcast
Council) (1991) 22 LAC (4th) 9 (Thorne) at p. 18.
32 It may be said then that while there is a “general reluctance on the
part of arbitrators to bifurcate hearings”. B.C.T. Local 446, supra at
para. 35, the ultimate decision is dependent “upon fairness to the
parties, and practicality and economy of time.” Toronto (City) and
CUPE, Loc. 79 (2004) 128 LAC (4th) 217 (Kirkwood) at p. 220
Canadian Broadcasting Corp, supra at p. 18; School District No. 27
Cariboo-Chilcotin) and Cariboo-Chilcotin Teachers’ Assn (1994) 46
LAC (4th) 385 (Kinzie) at pp. 386-87.
33 What then is the “best course of action” for an arbitrator when
considering a motion to bifurcate a hearing? It is suggested by the
authors in Gorsky, Evidence and Procedure in Canadian Labour
Arbitration, Part III, section 7.2, pp. 7-4 to 7-6 that while the “early
practice” of arbitrators was to hear both the preliminary objection and
the merits in the same hearing, the “more-orthodox position” – one that
was they say in place by 1970 and is now “the best course of action” –
is for these matters to be bifurcated: see too Nova Scotia and NSGEU
(CoatesI (1999) 82 lac (4th ) 218 (North) at pp. 220-21. In support of
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this proposition the text cites Re Hiram Walker & Sons Ltd and
Distillery Workers, Local 61 [1973] OLAA No. 71 (Adams), where
Arbitrator Adams suggested at para. 6 that requests for bifurcation
should not be granted unless:
a. the party requesting the adjournment made this fact known to
the other party before the hearing date to enable the other party
the opportunity to refrain from having his witness in attendance;
b. the merits appear to be severable from the issue of arbitrability;
c. the delay will not seriously affect the availability of witnesses;
and
d. no other serious prejudicial effect, uncompensable by money,
will be experienced.
34 The most problematic of these four conditions is the second: that
the merits appear to be severable from the issue of arbitrability. The
difficulty is that an arbitrator hearing a motion to bifurcate does not
know what the evidence and issues on either the preliminary objection
or the merits will be. Indeed, it often has little idea of the exact nature
of the issues – or of the facts that are or will be material to those
issues. Hence it can only rely on the submissions of counsel seeking
bifurcation, but counsel with the best of good intentions may
nevertheless be mistaken as to (a) what evidence will be necessary to
establish their preliminary objection and (b) whether that evidence will
overlap evidence that is material to the merits.
35 The risk then is that bifurcation may be granted on the assumption
that the evidence and issues on the preliminary objection are separate
and distinct from the merits, only to discover either that (a) they are not
severable, or (b) evidence from the merits side is in fact necessary to
resolve the issues on the preliminary objection side. So, for example,
and perhaps ironically, Arbitrator Adams in the Re Hiram Walker case
granted the employer’s request for bifurcation based on counsel’s
submissions that the four conditions had been established – only to
discover upon hearing the evidence relevant to the preliminary
objection that “with hindsight, the second criteria enumerated has not
been met:” para. 7. In the result he found that the issues of arbitrability
and the merits were intertwined, and a new hearing would have to be
convened: See para.23.
At para 37, arbitrator Richardson proceeded to formulate the following criteria to
be applied:
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37 In the end the Board is of the view, having considered the
authorities relied upon by the parties as well as their submissions, that
bifurcation may be appropriate where:
a. the issues relating to the preliminary objection are
clearly separate and distinct from the merits of the
grievance;
b. a decision on the objection would be dispositive of the
entire grievance (that is, would eliminate the need for
a hearing on the merits); and
c. such a disposition would save significant amounts of
time and resources that would otherwise be
necessary to hear the matter on the merits.
[32] In Canadian Broadcasting Corp, (supra) at para. 25-26, arbitrator Thorne wrote:
25 If it were clear that the preliminary issue could be dealt with
separately from the merits, this would be the very sort of case in which
a preliminary determination should be made. It appears that the
evidence on the merits will be extensive and that going into the merits
may be stressful for the grievor and others. If the evidence on the
preliminary question could be restricted to that issue and dealt with
fairly expeditiously, the possibility that the preliminary issue might
dispose of the whole matter would make it very desirable to deal with
the preliminary issue first. Yet the procedural question must be dealt
with on the basis of the allegations which are before me at this point.
The union has taken the position that the application of art. 54 is
intertwined with the merits of this case and that the union’s argument
on the preliminary issue would necessarily involve going into aspects
of the merits. It is also said that the evidence to be presented with
respect to the interviews in question would involve consideration of
some of the case against the grievor – to which he would be entitled to
respond.
26 At the hearing I indicated that, at this stage of the proceeding, I
must depend to a great extent to the allegations put forward by
counsel. Since it appeared that the evidence on the preliminary matter
would be bound up with the evidence on the merits, it seemed to me
that the appropriate course was to permit the parties to call their
evidence on both questions, leaving the preliminary issue as a matter
to be argued at the conclusion of the case.
[33] In Re Halifax Regional School Board, (supra), the issue was the same as in Re
Canadian Broadcasting Corp., namely whether the union’s claim that discipline
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imposed was void ab initio should be bifurcated and dealt with as a preliminary
matter before hearing the merits. At para. 25-27, the Board summarized its
reasons as follows:
25 Both parties agree that the principles to be applied in considering
this issue emanate from the CBC case. These were applied in the
Cariboo-Chilcotin case, supra, and there is criteria for consideration set
forth in the Gorsky text, supra.
26 Based on a review of the material made available to me, I am of
the impression that any determination of the bifurcation issue must
address two considerations. First, will bifurcation strengthen the
arbitral process without compromising its function of providing a final
settlement in an expeditious manner. Secondly, if such is the case, do
the circumstances lend themselves to proceeding in such manner.
The criteria in this second step would include a consideration of the
fairness to the parties, the severability of the preliminary issue from the
merits, the effect on witness availability, and any overriding prejudice
that might arise therefrom.
27 There appear to be two underlying reasons which make bifurcation
desirable. First and foremost in my opinion is the possibility that a
determination of the preliminary issue might dispose of the whole
matter. This should be a real possibility, otherwise bifurcation will have
served no purpose whatever. The second reason is the avoidance of a
lengthy hearing which is likely to be arduous and stressful on the
grievor and others, and likely to have a serious prejudicial effect on the
relationship of the parties.
[34] In Re Cargill Foods (supra) arbitrator Marcotte reviewed authorities on the issue
of bifurcation, including Re Canadian Broadcasting Corp and wrote at para.
222-23 as follows:
22 In applying the above approach to the matter of bifurcation before
me. I first and foremost note the Employer’s allegation that a decision
on the preliminary issue would not be dispositive of the grievance,
firstly, in alleging that the Employer did not rely on the grievor’s
statements made in the impugned meeting on April 8, 2009, and,
secondly, if it is found that the discharge is void ab initio, it would not
be appropriate to re-instate the grievor in all the circumstances RE
TRW Canada Ltd., supra. That is, regardless of the decision in the
preliminary issue, the merits of the grievance will have to be dealt with
in this hearing. Thus, it would not be an efficient or economical use of
time to bifurcate the hearing. Nor in my view would it be practical to
bifurcate the hearing. Because the merits of the grievance will have to
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be dealt with, witnesses called to provide evidence on the preliminary
issue, including the grievor and Mr. Kyle and, perhaps, others such as
Mr. Do and Mr. Hogan, would be called a second time in dealing with
the merits of the grievance. Not only is such a circumstance
impractical, but it would be unnecessarily stressful on the witnesses to
be called twice to testify at the hearing.
23 Based on the foregoing, I find it is not appropriate in the instant
case to bifurcate the hearing for procedural purposes.
[35] In applying the principles relating to bifurcation that emerge from the authorities,
I first note that the instant case is distinguishable from most of the authorities
cited, in one significant respect. In those cases, the consideration was whether
the decision on a preliminary issue to be bifurcated would be dispositive of, or
render irrelevant, the merits of the grievance. In the instant case, the
employer’s proposed no prima facie case motion is not a “preliminary” issue in
that sense. The union has challenged the employer’s decision in a number of
ways. Some are based on a claimed right to PRB under the provisions of the
collective agreement – the “contractual claims”, as counsel called it. The
employer has conceded that one such claim, based on Appendix 11 to the
collective agreement would survive its no prima facie case motion. In addition
the union has challenged the employer’s decision based on the equitable
doctrine of estoppel and the prohibition of discrimination in the collective
agreement and the Human Rights Code. It is agreed that the estoppel and
discrimination allegations would also survive a decision upholding the
employer’s motion. The employer’s attempt is to hive off some of the claims of
the union and hear them first.
[36] If the Board follows the procedure proposed by the employer, that is decide the
no prima facia case motion solely on an interpretation of the words in the
collective agreement without hearing any evidence, the motion would likely be
heard and decided very quickly. Then the Board could proceed to hear the
union claims that survive the motion. There obviously could not be a duplication
of evidence because no evidence would have been heard in disposing of the
motion.
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[37] However, the case law is consistent that any efficiencies that may be gained by
bifurcation should not be pursued, where it results in unfairness or prejudice to
any party. To quote Vice-chair Harris in Re Stewart (supra), “If the early
resolution of an issue may be dispositive of the matters before it, then
bifurcation is a useful procedural tool, provided there is no unfairness to any
party in following such a procedure”. (Emphasis added). In Re Police Assn. of
Nova Scotia v. Amherst Town (supra) at para. 32, the arbitrator wrote: “It may
be said then that while there is a “general reluctance on the part of arbitrators to
bifurcate hearings”, … the ultimate decision is dependent “upon fairness to the
parties, the practicality and economy of time.” (Emphasis added). In Re East,
(supra) at para. 15 the Board wrote: `While bifurcation would avoid dealing with
certain issues such as the dispute as to the admissibility of the surveillance
evidence, I have determined that in balancing the limited potential for gaining
efficiency with the need for fairness, the overall considerations do not favour
bifurcation in the particular circumstances of this case”. (Emphasis added).
Similar observations are found also in Re Toronto (City) (2004) 128 L.A.C. (4th )
217 (Kirkwood) at p. 220; Re Canadian Broadcasting Corp., (supra) at p. 18;
and Re Cariboo-Chilcotin School District No. 27, (1994) 46 L.A.C. (4th ) 385
(Kinzie) at pp. 386-87.
[38] In the Board’s view, the bifurcation sought by the employer in the instant
proceeding would not be fair to the union. It would indeed be a denial of the
union’s right to fully present its case in support of the grievance. Brown &
Beatty, Canadian Labour Arbitration, at 4:2100 states:
A more recent articulation of the proper approach has been as follows:
The modern Canadian approach to interpreting agreements
(including collective agreements) and legislation is
encompassed by the modern principle of interpretation which,
for collective agreement, is:
In the interpretation of collective agreements, their words
must be read in their entire context, in their grammatical
and ordinary sense, harmoniously with the scheme of the
agreement, its object and the intention of the parties.
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At 4:2250 the authors state that “Where the context of the agreement or subject
matter is sought to be established, extrinsic evidence may be received for that
purpose”. At 4:2300 they go on:
In construing collective agreements, arbitrators look to the purpose of
the particular provision in the collective agreement as an aid to
determining the meaning intended by the parties. In this regard, they
have recognized that collective agreements are not negotiated in a
vacuum, but rather are settled in the context of general industrial
relations practices, within a specific negotiating context and against a
vast history of judicial and arbitral jurisprudence which will affect the
parties expectations and understandings. In the result, arbitrators give
effect to this general contextual climate by requiring clear statements
to alter such general expectations. (Foot-notes omitted)
[39] In Simcoe Muskoka District Health Unit, (2009) 100 C.L.A.S. 140 (MacDowell)
at para. 38, the arbitrator wrote:
… Where it is said that the words mean something different than
what they seem to mean on the surface … then we think that it is
legitimate to ask whether there is anything in the context (the
other words in the agreement, the bargaining history, the past
practice etc.) which indicates that this is what the parties “must
have intended”, even if they have not said so explicitly.
(Emphasis added).
[40] Thus, from the forgoing it is established that a party is entitled to lead extrinsic
evidence to establish that a provision of a collective agreement means
something different than what the literal words indicate even if the parties have
not said so explicitly, and that extrinsic evidence may be received for that
purpose. It would take reliable and compelling evidence to establish that
provisions of a collective agreement mean something different than what the
language indicates. However, whether extrinsic evidence meets that standard
must be decided after the evidence is in. It would be unfair and not appropriate,
to deny a party the opportunity to present its evidence.
[41] The jurisprudence is clear that a party to a collective agreement is entitled to
attempt to establish that the words in a provision mean something different than
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what appears on a literal reading. As arbitrator MacDowell wrote in the excerpt
from Simcoe Muskoka District Health Unit, (see para. 39 supra), even where
parties have not said so explicitly, the context may indicate that “the words mean
something different than what they seem to mean on the surface.” He states
that the context includes the bargaining history. Brown & Beatty at 4:2250
(para. 38 supra) state that “where the context of the agreement or subject matter
is sought to be established, extrinsic evidence may be received for that
purpose”.
[42] The employer’s position is that in its proposed motion the Board should decide
the union’s contractual claims solely based on the language of the collective
agreement, without hearing any of the extrinsic evidence the union seeks to rely
on. It seems to me, if that process is followed, the employer’s position would be
unassailable. This is so because the union has conceded that there is no
explicit language it can rely on. Its argument is that PRB are implicit in the
agreement. The employer’s position in effect is that the union should not be
allowed to make that argument. It is tantamount to saying that there can be no
claim under a collective agreement in the absence of explicit language. In other
words, a party cannot adduce extrinsic evidence to establish that words mean
something different than what they seem to indicate on a plain reading.
However, as the case law reviewed above indicates, that is not supported by the
law. The union is entitled to adduce extrinsic evidence to support its position
that even in the absence of explicit language, PRB is part of the collective
agreement.
[43] Given that conclusion, the Board is convinced that there would be little, if any,
efficiency to be gained by bifurcation of the instant proceeding. While employer
counsel submitted that no extrinsic evidence should be received in relation to
the union’s contractual claims (which submission has been rejected by the
Board), he did not take the position that if the Board allows extrinsic evidence in
hearing the motion, there would be no duplication of evidence. To the contrary
in his opening statement, he repeatedly relied on extrinsic evidence in relation to
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both the union’s contractual claims, as well as the other claims not subject to his
proposed no prima facie case motion.
[44] It is also clear that a decision in favour of the employer on the motion would not
dispose of the whole grievance. The Board is of the view that issues raised in
the various claims of the union are intertwined. Therefore, there will be
significant overlap in the evidence. A procedural decision to bifurcate in the
circumstances of this case would also be unfair and prejudicial to the union.
[45] Therefore, the Board denies the employer’s motion for bifurcation. All of the
claims raised in the grievance will be heard in one proceeding. The Board
remains seized, and the hearing will proceed on the dates scheduled.
Dated at Toronto, Ontario this 5th day of October 2016.
Nimal Dissanayake, Vice Chair