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HomeMy WebLinkAbout2000-1185.Pallota.02-03-21 Decision ~~~ o@~o EMPLOYES DE LA COURONNE _QJ.L ii~~~~~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1185/00 UNION# OLB396/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees' Union (Pallotta) Grievor -and- The Crown In Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nlmal V Dlssanayake Vice-Chair FOR THE GRIEVOR Craig Flood Counsel Koskie Minsky Barristers & Solicitors FOR THE EMPLOYER Alison Renton Counsel Ontario Liquor Control Board of Ontario HEARING December 11, 2001 2 DECISION On July 18, 2001, a hearing was convened by the Board to deal with a grlevance filed by Mr Michael Pallota, wherein he grieved that the employer had contravened article 6 15 of the collective agreement by refusing to pay him a shift premlum for the hours he worked from 6 00 P m to 9 30 P m on August 7, 2000 During the hearing, the employer indicated its intention to adduce extrinsic evidence In support of its interpretation of the collective agreement It was the employer's position that the language In article 6 15 was patently ambiguous In addition, the employer contended that it would lead evidence as to past practice which would disclose a latent ambiguity and/or create an estoppel against the unlon The employer further argued that through evidence of negotiating history, it would establish that the unlon had made representations to its detriment as would constitute estoppel The union's position was essentially that no extrinsic evidence was properly admissible for any purpose because the provision of the collective agreement was unambiguous In a decision dated August 17, 2001, for reasons set out therein, the Board directed as follows 3 (a) The Board determines that there lS no patent ambiguity In the collective agreement provlslon relating to shift premlum The Board will not therefore hear extrinsic evidence on that basis (b) The employer lS directed to provide to the unlon detailed particulars relating to all of the facts it proposes to establish through extrinsic evidence, relating to past practice and/or negotiating history, to disclose a latent ambiguity and/or to establish an estoppel These particulars are to be provided to the unlon no later than September 14, 2001 I shall hear submissions as to whether the particulars, assumlng they are capable of proof through evidence, form a sufficient basis to create or disclose a latent ambiguity and/or an estoppel On the basis of those submissions the Board will decide whether or not it will hear any extrinsic evidence The Board was advised that the unlon agreed to extend the time for filing particulars to September 20, 2001 On that day the employer filed particulars pursuant to the Board's direction Based on those particulars, on December 11, 2001, the Board received submissions as to whether it ought to recelve any extrinsic evidence 4 Past practice The lssue lS whether the facts, as set out In the employer's particulars as to past practice, (assuming those facts to be capable of proof) forms a sufficient basis to establish a promlssory estoppel against the unlon, and/or whether that evidence would disclose a latent ambiguity In order to establish an estoppel, one of the ingredients the employer must show is that the union made a representation to the effect that it either agreed with the employer's practice with regard to shift premiums, or at least that it would not take a contrary position Such a representation may be made explicitly, or implicitly through acqulescence Having reviewed the particulars, I have concluded that if proved through evidence, they do not disclose such a representation by the unlon The particulars, on the contrary, disclose that the union clearly took the position that the manner In which the employer administering the shift . . . For was premlum provlslon was lmproper example, the employer's particulars note that In December 1998 "the union wrote to its membership that they were entitled to the payment of shift premlums on overtime hours, including paid holiday hours " 5 In order to establish a latent ambiguity, there must be evidence that the parties had a mutual understanding of the employer's obligation, which was different to the obligation conveyed on the face of the document In contrast, the particulars, if proven, would lead to the conclusion that the unlon and the employer continuously had opposing views as to the obligation under the relevant provlslon The particulars do not disclose that at any point the unlon agreed that the employer's practice was in compliance with the collective agreement The particulars filed, however, do indicate that while protesting that the employer's practice and expressing a contrary Vlew, the unlon did not grleve In that regard Thus, employer counsel repeatedly argued that the union "failed to made a formal objection by filing a grievance" The union's failure to grleve earlier may have legal consequences on its entitlement to redress for past violations However, when the evidence lS that the union took the position that the employer's practice was contrary to the collective agreement, and that it did not at any time change that position, it lS not possible to conclude that it agreed with the employer's practice or acquiesced with it The particulars therefore do not have the potential for establishing an estoppel or disclosing a latent ambiguity 6 For the foregoing reasons the Board will not allow any evidence as to past practice Negotiating History On September 20, 2001, the employer filed particulars relating to its proposed evidence on negotiating history Union Counsel agreed that I should receive that evidence However, an lssue arose as a result of the employer filing additional particulars relating to negotiating history on December 7, 2001 The employer states that the proposed evidence relates to "the history behind the application of and changes to article 6 15 (a) of the collective agreement" The unlon submitted that these additional particulars filed on December 7, 2001 should be disregarded and that the Board should not accept any evidence relating to those particulars The union pointed out firstly that the particulars were filed just a few days prlor to the hearing, well after the date set by the Board for filing of particulars ( September 14, 2001 ) and the extended date (September 20, 2001 ) The unlon further argued that the employer was now proposlng to go back to 1991, whereas the particulars initially 7 filed only went back to the 1998-2000 collective agreement Union counsel expressed concern that the unlon would face the extremely difficult task of tracking down negotiating committee members from 1991 and locating their notes For her part, employer counsel submitted that the proposed additional evidence should be allowed because it was not "new" evidence Instead, the proposed evidence lS intended to merely set the context for the evidence arising out of the particulars earlier filed While filed late, counsel submitted that glven the nature of the evidence proposed, the union would not be prejudiced In its decision dated August 17, 2001, the Board directed that the employer provide "detailed particulars relating to all of the facts it proposes to establish through extrinsic evidence relating to past practice and/or negotiating history " no later than September 14, 2001 Therefore, the particulars filed on December 7, 2001 are clearly late and the employer, as a matter of right, has no entitlement to pursue new evidence at this late stage If the employer was proposlng to lead evidence as to what happened at the negotiating table during collective bargaining at any time prlor to those leading to the 1998-2000 collective agreement, the Board would disallow that That would be (to use unlon counsel's jargon) "to open a whole new can of worms" not raised In the initial particulars To ralse such 8 lssues at the time it did would significantly prejudice the unlon However, I read the particulars much more narrowly, particularly In light of the employer's statement that the additional particulars do not ralse any new facts, but are only intended to set a context, that the evidence will simply outline the changes In the language In the collective agreements leading up to the bargaining for the 1998-2000 agreement If this lS the case, it should not cause the unlon any significant prejudice, and the proposed evidence would not be new evidence unrelated to the particulars filed on September 20, 2001 On that understanding, despite its failure to comply with the time limit set by the Board, the employer will be permitted to lead evidence merely to show the changes In language In collective agreements going back to 1991 To further assist the union, the employer lS directed to provide to the union, in advance of the next hearing, coples of the relevant articles from past collective agreements which it intends to rely on This matter will continue on April 11, 2002 as scheduled Dated at Toronto, this 21 t day of March, 2002 ~:~ .,-~~ ;. . ...... . .: :. . ...<<.."=:::" Nimal V Dissanayake, Vice-Chairperson