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HomeMy WebLinkAbout2004-0050.Union Grievance.04-07-07 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# 2004-0050 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Manlyn A. Nairn Vice-Chair FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell BarrIsters & SOlICItorS FOR THE EMPLOYER DavId Strang ActIng AssocIate DIrector Management Board Secretanat HEARING July 5 2004 2 DeCISIon At the heanng the umon IndIcated that It was takIng the posItIOn that the language of the collectIve agreement was clear and unambIguous and further that, as It was not assertIng any ambIgUIty requmng relIance on eVIdence of eIther negotIatIng hIStory or past practIce, the employer should be reqUIred to lead any such eVIdence (upon whIch It mIght seek to rely In support of any argument that the language of the collectIve agreement was ambIguouS) pnor to the umon beIng reqUIred to do so The umon acknowledged that It would Intend to respond to any such eVIdence In reply and If necessary argue In the alternatIve that any ambIgUIty supported ItS posItIOn. The employer took the posItIOn that the umon was reqUIred to call such eVIdence first as It bore the onus of establIshIng ItS case NeIther party took the posItIOn that I ought to make any prelImInary decIsIOn as to the eXIstence of any ambIgUIty or not. The umon acknowledged that tYPIcally arbItrators reserve any such decIsIOn In the face of any assertIOn that an ambIgUIty eXIsts (at least wIth respect to any latent ambIgUIty) whIch, the employer asserted, reqUIres eVIdence of negotIatIOns and/or practIce In order to fully apprecIate the partIes' IntentIOn WIth respect to the language used In the collectIve agreement. The umon acknowledges that It IS reqUIred to proceed first for the purpose of attemptIng to establIsh ItS case That case rests on an assertIOn that the employer has faIled to provIde certaIn benefit coverage In the face of clear language In the collectIve agreement requmng It to do so It IS the employer whIch seeks to rely on an asserted ambIgUIty(ies) It asserts a dIfferent meamng to the language of the collectIve agreement than that asserted by the umon That 3 posItIOn compnses ItS defence to the allegatIOn that It has vIOlated the collectIve agreement. Absent the assertIOn of an ambIgUIty there would be no reqUIrement to hear any eVIdence of negotIatIng hIStory or past practIce The partIes would argue the matter based on the words of the collectIve agreement. It IS the employer whIch seeks to put such eVIdence before me as part of ItS case WhIle It may be that partIes typIcally reach an agreement as to how to proceed In such cIrcumstances, no such agreement was forthcomIng here The fact that the umon has the ultImate legal onus to establIsh ItS case does not determIne thIS Issue The umon would be prepared to attempt to meet that onus based solely on ItS posItIOn regardIng the language of the collectIve agreement. It IS the employer whIch IS assertIng relIance on eVIdence of negotIatIng hIStory and/or past practIce In that cIrcumstance, I am satIsfied that the employer cannot properly reqUIre the umon to call eVIdence on any Issue of ambIgUIty first. The umon IS entItled to hear the eVIdence upon whIch the employer seeks to rely and respond to It as It deems necessary In order to respond to the employer's asserted defence Such IS a proper matter for reply eVIdence ThIS matter IS set to reconvene on July 8 2004 At that tIme the umon wIll be expected to present ItS eVIdence EVIdence regardIng Issues of ambIgUIty In the language of the collectIve agreement wIll be heard In accordance wIth the determInatIOn In the paragraph above The partIes are 4 remInded that any matter revIewed or dIscussed In the medIatIOn process IS not before me by way of eVIdence, nor have I receIved any documentary matenal Into eVIdence Counsel are also to turn theIr mInds to the number of days whIch they belIeve the matter wIll reqUIre for heanng and come prepared to set further dates at the heanng on July 8th. Dated at Toronto thIS ih day of July 2004 ~ I '; ,~. ~~ ~ "I ~ . ..' . "~'. '.. ,I . . I' -, r.:: - :" I ~. :. ij .' Vi~e-'ChaI~ .~. n' -'.' . ". __0