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HomeMy WebLinkAbout2002-2394.Grant.04-01-19 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2394 UNION# 2002-0121-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Grant) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE N DIssanayake Vice-Chair FOR THE UNION CarolIne V Jones PalIare Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Lucy McSweeney Counsel Management Board Secretanat HEARING November 10 2003 and January 6 2004 2 PRELIMINARY DECISION A grlevance dated November 25, 2002 filed by Mr Donald Grant came before the Board for mediation arbitration Following unsuccessful mediation attempts, the arbitration was commenced For purposes of this preliminary issue only, the parties presented to the Board the following background facts and made submissions on that basis The grlevor commenced employment with the employer In March of 1977 as a Property Assessor In 1998 the Ontario Government decided to divest certain aspects of the Ministry of Finance including the Property Assessment Division effective December 31, 1998 to the Ontario Property Assessment Corporation ("OPAC") , now legislatively re-named as the Municipal Property Assessment Corporation There lS no dispute that at the time of the divestment, the grlevor was on LTIP having been deemed to be totally disabled The divestment triggered the "reasonable efforts" provlslons of the collective agreement A Memorandum of Understanding was entered into between the employer and the new employer OPAC on or about December 15, 1998 In the meantime, the employer and the unlon had several meetings with regard to 3 reasonable efforts, culminating In a Memorandum of Understanding dated December 21, 1998 The relevant portion of that Memorandum reads It lS understood that when the Ontario Property Assessment Corporation (OPAC) assumes responsibility for the delivery of property assessment functions on December 31, 1998, there may be certain OPSEU represented employees of the Property Assessment Division absent from work because of illness, disability or leave It lS agreed that 1 These employees will not commence employment with OPAC until the termination of their leave or until they are medically fit to return to work 2 Until that time, they will remain employees of the Crown 3 When they are able to return to work or at the termination of their leave, they will commence employment with OPAC under the terms of employment In effect at that time at OPAC for employees of their class 4 The Ministry of Finance will not be required to evaluate positions occupied by these individuals 5 Any lncrease comlng into affect [s~c] during this extended period of employment by the Crown will be applied to any pay received from the Crown [ It lS noted that LTIP lS not affected by salary adjustments] 6 There lS no requirement for the Ministry of Finance or the Employer to attempt to negotiate adjustments with OPAC and it lS understood that OPAC's commitment to pay 100 of salaries refers to salaries In effect on December 30, 1998 4 It lS agreed that In his particular circumstances, the foregoing MOD applied to the grlevor In his grlevance the grlevor claims, inter alia, that when sometime In 2002 he indicated his medical fitness to return to work, para 3 of the MOD obliged the employer to offer him a position with OPAC The employer contends that para 3 of the MOD lS patently ambiguous In relation to the meanlng of the words "under the terms of employment In effect at that time at OPACff In addition, the employer claims that there lS a latent ambiguity In the provlslon On that basis the employer sought to adduce extrinsic evidence with regard to interaction between the employer and the unlon which preceded the execution of the MOD The employer contends that this evidence will establish that the parties intended to place a limit of one year (from the date of divestment) on the right of employees returning from LTIP to employment with OPAC Moreover, the employer claims that the same extrinsic evidence will establish that the unlon made representations agreelng to a one year time limit, which now estops the unlon from asserting otherwise The Board lS called upon to determine In this decision whether or not it should allow the proposed extrinsic evidence 5 Patent ambiguity lS ambiguity on the face of the document to be interpreted Therefore, by its very nature, one can decide whether or not a patent ambiguity exists by examlnlng the document itself An examination of the MOU, particularly para 3, does not disclose any ambiguity In the language It clearly states that "when they are able to return" , they will commence employment with OPAC etc It does not qualify the "when" with any time limitation Therefore I do not find any patent ambiguity that needs to be resolved with the assistance of extrinsic evidence Turning next to the lssues of latent ambiguity and estoppel, it lS the extrinsic evidence itself that discloses the presence of a latent ambiguity or estoppel A latent ambiguity lS an ambiguity, not on the face of the document, but In its application to a particular set of facts Extrinsic evidence can disclose a latent ambiguity In what otherwise appears to be a clear provlslon It lS now well established that an arbitrator may admit extrinsic evidence to disclose as well as to resolve a latent ambiguity In a collective agreement See, R v Barber (1968 ) 2 o R 245 (Ont C A ) and - Leitch Gold Mines Ltd v Texas Gulf Sulphur Co (Incorporated) , ( 1969) 1 o R 469 (Ont H C J ) In Re Pal Iota 1185/00, I observed as follows 6 In contrast to a case of a patent ambiguity, it lS often the case that it lS the extrinsic evidence itself that creates or discloses a latent ambiguity Besides, the employer has also raised an estoppel argument on the basis of representations allegedly made by the unlon through acqulescence In past practice or by conduct during negotiations It lS not possible to determine the estoppel lssue without hearing the evidence that the employer claims created the estoppel In a recent decision In Re Greater Niagara Transit Commission, award dated April 3, 2001 (Dissnayake) unreported, at pp 5- 6, I made the following observation relating to latent ambiguity While there lS no unanimity on the lssue, the jurisprudence indicates that the majority of arbitrators recelve extrinsic evidence before determining whether or not a latent ambiguity exists as would justify its admission This lS not surprlslng, because as the courts have held, one of the purposes for which extrinsic evidence may be tendered lS to disclose a latent ambiguity Thus, Brown and Beatty, Canadian Labour Arbitration, (supra) at 3-72 summarlzes as follows Many arbitrators have concluded that extrinsic evidence should be received and that the ruling as to admissibility should be reserved or that the evidence should be received and the board of arbitration reserve to itself the right to determine what, if any, of the extrinsic evidence would be used to assist In the interpretation of the sections In dispute This lS particularly true where the alleged ambiguity lS latent, and extrinsic evidence lS tendered to disclose as well as to resolve it Other arbitrators, however, have refused to hear the extrinsic evidence until they have decided whether there lS an ambiguity A middle course pursued by another arbitrator involves hearing the evidence until it becomes clear that it lS appropriate to rule on the question of ambiguity (emphasis added) It lS the employer's position that the same extrinsic evidence that will disclose a latent ambiguity will establish an 7 estoppel against the unlon Again, by its very nature, it lS the extrinsic evidence that creates the estoppel The union's submissions and authorities, for most part, dealt with whether or not the proposed evidence discloses a latent ambiguity or establishes an estoppel Citing several authorities unlon counsel submitted that estoppel cannot legally arlse because the evidence will show that there was no pre-existing prOVlSlon which was the subject of any representation by the unlon In circumstances where the proposed extrinsic evidence lS so extensive as to involve multiple hearing days, the Board has not allowed such evidence merely because a party claims "a latent ambiguity" or "an estoppel" It has held that it "must be satisfied that there lS some cogent evidence, which if established, has the potential of establishing a latent ambiguity and/or estoppel " See Re Pal Iota , (supra) In those circumstances the Board directed that detailed particulars relating to the facts that will be established by the proposed extrinsic evidence be filed The Board received submissions based on those particulars before determining whether to hear the extrinsic evidence In the present case, the employer assured the Board that the proposed extrinsic evidence will be relatively brief In the circumstances, it lS the Board's determination that it should hear the proposed extrinsic evidence and recelve 8 submissions as whether or not that evidence indicates a latent ambiguity as would justify its use, and/or establishes an estoppel This proceeding will continue In accordance with the foregoing Dated at Toronto this 19th day of January, 2004 ~F . . ,.... , .. .. ...... . . . , ~ . . . -, ~ .. . ... :.'. ..:. ...: .., .~: .... . .. : . :". ~">>::::'-\f N': l' ...<<..<::~ ~ . ... . . 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