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HomeMy WebLinkAbout2013-4247.Association.21-01-25 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2013-4247; 2018-1169 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (Association) Association - and – The Crown in Right of Ontario (Ministry of the Solicitor General and Ministry of Children, Community and Social Services) Employer BEFORE Brian McLean Arbitrator FOR THE ASSOCIATION Marisa Pollock (Counsel) Goldblatt Partners LLP FOR THE UNION FOR THE EMPLOYER Donald Eady (Counsel) Paliare Roland Rosenberg Rothstein LLP George Parris (Counsel) Treasury Board Secretariat Legal Services Branch SUBMISSIONS July 15, 20 and 21; August 17; September 4, 18, 28; November 13 and 20, 2020 - 2 - Decision [1] These are disputes filed by AMAPCEO which assert that certain persons who are employed in correctional institutions (the Sergeants) (the term “Sergeants” includes Youth Service Managers for the purposes of this decision.) ought to be covered by its collective agreement with the government. These complaints, and more generally the Sergeants’ claim to be entitled to the benefits of collective bargaining, have a long history. As can be seen from the GSB file number, the first of these disputes was filed in 2013 and the issues raised by the complaint go back much further. [2] AMAPCEO sought to have these disputes brought on for hearing and I was appointed to hear and determine them. There is no dispute with my jurisdiction to do so. This decision determines OPSEU’s right to intervene in the hearing of these disputes. Background [3] In early 2020 AMAPCEO and the Employer met on a few days to attempt to agree to a process to litigate this dispute which promised to be a massive undertaking involving, as it did, numerous Sergeants employed across the province in a variety of institutions. A process and timetable for litigation were ultimately agreed upon. Matters agreed to, included identifying an institution to be used as a sort of test case, document production, and a method to enable AMAPCEO to contact Sergeants. The Employer also indicated that it would advise OPSEU of what was occurring so that it could assert any rights it believed it had. [4] A large number of hearing dates were set. On the eve of the commencement of the hearing on the merits, the Employer advised that it now had a number of preliminary arguments to make. It also advised that OPSEU had been given - 3 - notice of the matter and wished to participate. As a consequence, the start of the hearing of the merits, which had been scheduled for months, was derailed. [5] In any event, AMAPCEO objected to, and the Employer supported, OPSEU’s right to intervene. Further hearings were held and the parties agreed to make written submissions on this issue. Unfortunately, more of the scheduled hearing dates were lost. After the written submissions were filed it became clear to me that the parties were arguing at cross purposes. I wrote a decision explaining this and invited the parties to make further submissions about what I perceived to be the real issue between the parties at this point. The parties agreed to a timetable that eliminated more of the scheduled hearing dates and those submissions have now been filed. This decision determines that OPSEU has the right to intervene in the hearing of these disputes. Discussion [6] Normally, OPSEU’s right to intervene would be relatively clear. There are certainly arguments that Sergeants, if they are employees, might belong in the OPSEU corrections bargaining unit and OPSEU should be permitted to make them. However, AMAPCEO’s objection to OPSEU’s right to intervene is based on the argument that the issue of which union represents the Sergeants has already been decided by the Ontario Labour Relations Board and so OPSEU is prevented by the doctrine of issue estoppel or res judicata from asserting that it is properly the bargaining agent of the Sergeants (again, assuming some or all of them are “employees” within the meaning of CECBA). [7] In order to understand AMAPCEO’s argument, it is necessary to review in some detail the proceedings before the board. These proceedings were complex and made more so by the way in which the Board made its determinations. - 4 - The Board Proceedings [8] On April 9, 2013, the Public Service Alliance of Canada (PSAC) filed an application for certification with the board, seeking to represent the Sergeants in the following bargaining unit: “All Crown employees who are employed as Sergeants in provincial adult correctional facilities in Ontario or who are employed as Youth Service Managers in provincial youth centres for young offenders in Ontario, save and except for persons for whom a trade union held bargaining rights at the date of application.” [9] The Employer, in its response to PSAC’s application, asserted that the proposed bargaining unit could not be appropriate because the Sergeants were, as persons who exercised managerial functions, excluded from collective bargaining under CECBA. Moreover, the Employer submitted that CECBA “designated both the possible bargaining units in which Crown employees may fall as well as the bargaining agents that may represent them. All Crown employees that fall into the possible bargaining units are currently represented by two separate unions (OPSEU and AMAPCEO)”. In other words, the Employer argued that there were a finite number of public service bargaining units established by law (seven at the time) and the unions to represent the employees in those units were designated as OPSEU and AMAPCEO. Since AMAPCEO’s bargaining unit was at the time a “tag end” unit there was no scope for PSAC to represent provincial government employees. [10] Both OPSEU and AMAPCEO intervened in PSAC’s certification application. OPSEU filed its intervention on April 16, 2013. It opposed the application on the basis that CECBA did not permit the creation of a bargaining unit other than one of the seven set out in CECBA. It also took the position that the Sergeants were “likely” within OPSEU’s Correctional Bargaining Unit: - 5 - In the event that the Board determines the persons who are the subject of this application to be employees, the Crown Employees Collective Bargaining Act may, by its terms, mandate the inclusion of the subject employees in one of the seven statutorily prescribed bargaining units, as that Act does not contemplate or permit a bargaining unit of Crown employees who are public servants over and above those units prescribed by its terms. OPSEU is therefore affected as this application relates to persons who, if they are employees of the Crown not otherwise excluded from collective bargaining by the provisions of CECBA, may and likely do already fall within one of OPSEU’s existing bargaining units and most particularly likely the Correctional Bargaining Unit. [11] AMAPCEO filed its intervention on April 19, 2013. It asserted that “If the persons who are the subject of this Application are employees, AMAPCEO takes the position that these employees are in its bargaining unit.” [12] On April 26, 2013, the Employer provided further submissions on why PSAC’s application should be dismissed. While maintaining its position that the members of the proposed unit were excluded under s. 1.1(3) of CECBA (the managerial exclusion) it now asserted that this question was of “little consequence” because there was a more basic problem with PSAC’s application. Under CECBA, Sergeants “must be one of three things: i) excluded from collective bargaining, ii) in the AMAPCEO bargaining unit, or iii) in the OPSEU bargaining unit.” The Employer asked the Board to address this issue on a preliminary basis, before inquiring into the status of the workers. [13] On April 26, 2013, PSAC also filed further submissions. It took the position that neither AMAPCEO nor OPSEU had a right to intervene in the application because neither of them had bargaining rights over the Sergeants. On April 30, and May 1, 2013 AMAPCEO filed extensive submissions not only on why CECBA meant that only AMAPCEO or OPSEU could represent the Sergeants, but also why it was AMAPCEO (and not OPSEU) who represented them already. - 6 - [14] On May 9, 2013, counsel for PSAC wrote to the Board to advise that PSAC intended to argue that AMAPCEO and OPSEU were estopped from asserting bargaining rights and that in any event there had been a waiver and/or abandonment of any bargaining rights that either union may have once had. [15] On February 28, 2014, the Board issued a decision setting out the issues that appeared to arise as part of the certification application: The pleadings and submissions filed by the parties raise a number of issues, including (a) whether the provisions of CECBA preclude the filing of this application; (b) whether OPSEU and/or AMAPCEO have abandoned any bargaining rights that they may have had to represent the employees that are the subject of this application; (c) whether OPSEU and/or AMAPCEO may be subject to an estoppel or waiver with regard to their bargaining rights; (d) whether the employees who are the subject of this application are properly excluded from collective bargaining because they exercise managerial functions and/or are employed in a confidential capacity in relation to labour relations; and (e) whether the unit of employees that PSAC desires to represent is a unit of employees appropriate for collective bargaining. (emphasis added) [16] The Board described an earlier decision it had issued, dated May 24, 2013, in which it decided to begin the case by dealing “only with the question of whether CECBA, interpreted on its own, prohibits or bars this application.” In other words, the Board held in May 2013 that it would only consider whether CECBA prohibited the creation of a new bargaining unit not represented by OPSEU or AMAPCEO, but that it would not consider whether one of OPSEU or AMAPCEO actually represented the Sergeants, and if so, whether they had abandoned those bargaining rights. The Board also concluded in its May 24th decision that it would not be appropriate to consider any extrinsic evidence that the Crown and the interveners proposed to put forward. [17] However, in its February 28, 2014 ruling, a majority of the Board (with the vice- chair dissenting), having heard legal argument on the question of whether CECBA alone barred PSAC’s application, decided to revisit its May 2013 - 7 - decision. Members Rundle and Patterson concluded that they had been too hasty to not allow the parties to put forward full evidence on the events surrounding the creation of CECBA. The Board declined to determine whether PSAC was entitled to file its application without hearing evidence on the history of labour relations within the OPS. [18] Due to the passage of time, the Board also invited all parties to file submissions regarding any new issues that may have arisen, any preliminary matters that one or more of them wished to argue, and any further submissions on the proposed evidence and order of calling it. [19] On December 19, 2014, PSAC filed submissions in response to the Board’s decision. It made the following submissions on the proper scope and order of evidence to be heard by the Board: We wish to confirm the position of the Public Service Alliance of Canada (“PSAC”) with respect to the first issue before the Board. We understand that issue to be: whether the provisions of CECBA preclude the Board from granting a certificate in this Application. From PSAC’s prospective we understand the basis for a bar, according to the Responding party and proposed Intervenors, is that CECBA granted either OPSEU bargaining rights for the individuals who are the subject of this Application for Certification in 1993, or that CECBA granted those rights to AMAPCEO in 1995. From PSAC’s perspective, part and parcel of the first issue is the issue of which of these two trade unions – if any – was granted bargaining rights for the subject employees by CECBA. (emphasis added) [20] On December 23, 2014, AMAPCEO filed its submissions in response to the Board’s December 14th decision, as well as an amended set of substantive submissions on its intervention. AMAPCEO’s amended submissions were in most respects the same as those filed in April 2013. The submissions provided a detailed history of collective bargaining in the OPS, including: a. The enactment of CECBA; b. The involvement of OPSEU in the creation of OIC 243/94; - 8 - c. AMAPCEO’s application for certification of the “Seventh Unit”; d. The original Tripartite Agreements between the Crown, AMAPCEO and OPSEU; e. The 2004 resolution of AMAPCEO’s recognition dispute; f. OPSEU’s 2005 recognition clause; g. AMAPCEO’s 2007 OCR dispute; and h. The 2008 MOA [21] A special note can be made here regarding the 2008 MOA. It was an agreement between the Crown and AMAPCEO that amended the scope clause of the AMAPCEO/Crown collective agreement. The effect of the 2008 MOA is said to be that AMAPCEO was no longer a “tag end” bargaining unit and could no longer be the bargaining agent for Sergeants (and allegedly led to a wall-to-wall correctional unit, solely represented by OPSEU). The 2008 MOA provided for the following recognition clause: ARTICLE 1 - RECOGNITION 1.1 The Government recognizes the Association of Management, Administrative and Professional Crown Employees of Ontario as the exclusive bargaining agent for a bargaining unit composed of all Crown employees as defined in Section 1 of CECBA, 1993 who are Public Servants in the positions and classifications set out in Schedule 2 to this collective agreement. For clarity, Schedule 2 includes all classifications and positions previously encompassed by Schedule 1 that have been assigned to a classification level as of the signing of this collective agreement, as well as any positions or classifications included in Schedule 1 that have not, as of the signing of this collective agreement, been assigned to a level in the new job evaluation/classification system, students and interns working in those classifications and positions, and all employees in any newly established classification or position that is subsequently agreed, or determined by the OLRB, to be materially similar to a classification or position in the unit, (save and except persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations, or lawyers and engineers who are employed in their professional capacity, or persons employed in the Correctional Bargaining Unit or persons employed at the Ontario Police College, the Ontario Provincial Police Academy, or under the supervision - 9 - of the Commissioner of the OPP or the Chief Firearms Officer for Ontario.) (emphasis added) [22] The 2008 MOA also stated: The parties agree that this agreement amending the AMAPCEO Recognition clause overrides and replaces all prior agreements and settlements between these parties concerning the recognition, treatment and scope of AMACEO as a tag- end bargaining unit as well as replacing, in respect of the seventh unit, OIC 243/94. For clarity paragraph 5 of the recognition clause settlement dated September 8, 2004, providing for parallel classifications in the AMAPCEO unit where a deleted MCP classification is reinstated, continues to apply, and nothing herein affects the revised recognition clause set out in this paragraph. [23] AMAPCEO submitted that the Board should hear evidence on two issues: whether CECBA was a bar to PSAC’s application, and whether AMAPCEO or OPSEU held bargaining rights for the Sergeants. AMAPCEO asserted that after the Crown and the interveners called evidence on these questions, PSAC should be required to call evidence in response. AMAPCEO argued that PSAC should be required to put forward its evidence on the issue of abandonment of bargaining rights at that time: Next, PSAC should call its evidence as it relates to the first two issues, including any evidence that OPSEU and/or AMAPCEO abandoned their bargaining rights or that OPSEU or AMAPCEO are otherwise legally precluded from enforcing their bargaining rights. [24] On December 23, 2014, OPSEU wrote to the Board and adopted AMAPCEO’s submissions on procedure, including on whether PSAC should have to call evidence on abandonment. [25] On December 23, 2014, the Employer also wrote to the Board, largely adopting AMAPCEO’s submissions. It reserved certain rights to call evidence in reply and stated that the question of which bargaining agent represents the Sergeants did not need to be answered and that it would be sufficient to determine that “one of the bargaining agents would necessarily hold bargaining rights.” - 10 - [26] On January 7, 2015, AMAPCEO responded to PSAC’s December 19th submissions. It reiterated its position that there were two distinct but related reasons that PSAC’s application was barred: First, that CECBA did not permit it; and second, that AMAPCEO already held bargaining rights over the Sergeants. AMAPCEO reiterated its position that evidence on both issues – including abandonment – should be heard at the same time when the hearing resumed. [27] On January 9, 2015, PSAC replied to the various submissions arguing that the Board should decide not only whether one of AMAPCEO or OPSEU held bargaining rights, but which one: Now that the Board will be hearing evidence relating to the bar question, it makes procedural and practical sense to have the Board also hear the intimately related evidence regarding how each trade union believes it was granted bargaining rights by CECBA (or related regulations, Orders In Council or voluntary recognition agreements). [28] However, PSAC disagreed with AMAPCEO (as well as OPSEU and the Crown) that it should have to lead evidence on abandonment at the initial phase of the hearings. It made a simple argument on this point: it made no sense to require PSAC to lead evidence or make argument on abandonment by AMAPCEO and OPSEU before the Board had determined which of AMAPCEO or OPSEU had bargaining rights in the first place: It is impossible and premature for PSAC to lead evidence or make argument on the issues of abandonment (and waiver, estoppel, etc.) without knowing which – if any – trade union had previous bargaining rights. PSAC requires a ruling from the Board setting out which of OPSEU or AMAPCEO (if either) had bargaining rights and through precisely what mechanism (i.e. CECBA, OICs or VRAs, or otherwise) before it can properly investigate the matter and obtain full particulars of PSAC’s position regarding waiver and/or abandonment and/or spent rights and/or any other objection. [29] On January 14, 2015, the Board issued a decision, accepting PSAC’s position on the question of having to call evidence on abandonment: - 11 - We agree with the position asserted by PSAC. Having regard to the nature of the evidence to be called by AMAMPCEO with respect to the question of whether CECBA is a bar to this application, it makes practical sense to hear evidence regarding why each of AMAPCEO or OPSEU is of the view that it previously secured bargaining rights for the individuals who are the subject of this application. However, it is not yet necessary to hear evidence regarding the question of abandonment or any other previously identified legal issue that may have the effect of negating any bargaining rights secured by AMAPCEO or OPSEU. (emphasis added) [30] The Board proceeded to hold a hearing, in which all parties – including OPSEU – were entitled to call witnesses, enter documents into evidence, and cross- examine the witnesses put forward by other parties. Three witnesses were called: Kevin Wilson and Anna Hoad, who played an integral role within the Management Board of Cabinet in the creation of CECBA, and Robert Stambula, a senior officer of AMAPCEO throughout its history. OPSEU did not call any witnesses. [31] The evidence provided by these three witnesses was set out in a decision of the Board dated February 3, 2016, in which a majority of the Board dismissed PSAC’s application. In arriving at its conclusion, the majority of the Board answered the question of which bargaining agent represented the Sergeants: “Those subject to this application are agreed to be in AMAPCEO versus OPSEU.” However, so far as I can tell there was no such “agreement” by OPSEU. [32] Vice-Chair Shouldice disagreed with the majority’s interpretation of CECBA. However, in his reasons, he expressly agreed that the evidence demonstrated that AMAPCEO held bargaining rights for any Sergeants who were employees within the meaning of CECBA: Finally, I consider, briefly, the second issue in dispute in this stage of the proceeding, namely which of AMAPCEO or OPSEU previously secured bargaining rights for the individuals who are the subject of this application. In - 12 - paragraph 71, above, my colleagues state that the individuals subject to this application are in the AMAPCEO bargaining unit, and not the OPSEU unit. I agree. It is evident from the uncontradicted evidence of Mr. Stambula that, if the PSAC were to be successful in its assertion that the bargaining rights to represent the individuals in dispute in this proceeding have been abandoned, the union that must be found by the Board to have abandoned those bargaining rights is AMAPCEO, not OPSEU. (emphasis added) [33] In a sense then it can be seen that the majority and the dissent may have answered two different questions. The majority appears to have found that at the time of its decision the Sergeants were “in AMAPCEO”. On the other hand, Vice- chair Shouldice appears to have found that AMAPCEO held the bargaining rights in the past and the issue that remained was: were those bargaining rights abandoned? [34] PSAC sought judicial review of the Board’s decision. After the application for judicial review was filed, but before the hearing at the Divisional Court, the Ontario Legislature passed “Bill 70”, which made amendments to CECBA. In light of the amendments, the Divisional Court declined to hear the Application, and instead remitted the matter back to the Board. [35] The Board then issued a decision, dated January 26, 2017, in which it invited the parties to identify the issues that they believed should be addressed by the Board as a result of the Divisional Court’s endorsement. All parties filed submissions in response. After receiving these submissions, the Board issued a decision dated July 31, 2017, in which all three members held that PSAC’s application was barred. Vice-Chair Shouldice, who previously had disagreed with his colleagues’ finding that the predecessor CECBA was a bar to PSAC’s application, now found himself in agreement with the majority. He concluded that the amended version of CECBA did act as a bar to the PSAC application, and in doing so, reiterated the Board’s earlier conclusion that the Sergeants, if not excluded from CECBA, were necessarily represented by AMAPCEO: - 13 - …In the current case, the PSAC asserts that AMAPCEO has abandoned the Sergeants and Youth Service Managers who are the subject of its application for certification. AMAPCEO disputes that assertion. However, even if the allegation made by the PSAC were determined to be accurate, section 23(1) of the Act requires that the public servants in question be employed by the Crown in one of four units. As the public servants who are the subject of this application do not fall within the Unified Bargaining Unit, the Correctional Bargaining Unit, or the Engineer Bargaining Unit, they must be employed by the Crown within the Fourth Bargaining Unit. CECBA mandates that public servants employed by the Crown within the Fourth Bargaining Unit be represented by AMAPCEO until that unit is displaced by another union. CECBA, as it now reads, does not allow for a fifth unit to be created by the Board in order to permit a portion of the AMAPCEO bargaining unit to be represented by the PSAC. (emphasis added) [36] The majority of the Board also clearly re-affirmed its view that the Sergeants, if not excluded from collective bargaining, fell within AMAPCEO’s bargaining unit: The majority decision of February 3, 2016 determined, after a thorough review of the statutory language, that there could not be a “greenfield” application under the then-current Crown Employees Collective Bargaining Act (“CECBA”). The language did not support the creation of an eighth bargaining unit. What was not said in the February 3, 2016 decision was that the employees could not choose the bargaining agent of their choice. We want to make it abundantly clear that it was open to the Public Service Alliance of Canada (“PSAC”) to displace the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) to represent the affected employees, provided the displacement was effected in accordance with the Board’s practices (emphasis added). [37] This decision of the Board was not judicially reviewed, nor did any party make a reconsideration application. [38] The foregoing review of the history of the PSAC case makes three points clear: 1. Each of the Crown, OPSEU, and AMAPCEO was actively involved in the PSAC case. - 14 - 2. The question of whether the Sergeants were in OPSEU’s or AMAPCEO’s unit (if not excluded from collective bargaining) was at issue in those proceedings. 3. The Board did not hear evidence about or make a determination on “the question of abandonment or any other previously identified legal issue that may have the effect of negating any bargaining rights secured by AMAPCEO” AMAPCEO’s Argument [39] AMAPCEO argues that the issue of which union represents the Sergeants has already been decided by the Board and therefore OPSEU has no interest which would give it the right to intervene in this grievance. It notes that the doctrine of issue estoppel is now frequently applied in the context of administrative decision making. The leading recent authority on issue estoppel is the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies ([2001] 2 S.C.R. 460). There, the Court explained that decision-makers are required to follow a two-step analytical process: The first step is to determine whether the moving party (in this case AMAPCEO) has established the conditions to the operation of issue estoppel set out by Dickson J. in Angle v. Minister of National Revenue ( [1975] 2 S.C.R. 248). If successful, the decision-maker must still determine whether, as a matter of discretion, issue estoppel ought to be applied. [40] The Court in Danyluk confirmed that there are three conditions to the operation of issue estoppel: a. The issue that had been decided in the previous proceeding is the same as the issue in the current proceeding; b. The decision in which the issue was previously decided was judicial and final; and c. The parties to the previous proceeding are the same. [41] AMAPCEO argues that the issues are identical. Underpinning all of OPSEU’s arguments in support of an interest in this proceeding is the question of whether Sergeants fall within AMAPCEO or OPSEU’s bargaining unit if they are not - 15 - excluded under s. 1.1(3) of CECBA. This was one of the issues that was determined by the Board in the PSAC case. [42] It also asserts the decisions were judicial in nature. In Danyluk, the Court explained in para. 35 what factors are relevant to the question of whether a decision is sufficiently judicial to attract the application of res judicata: A common element of the preconditions to issue estoppel set out by Dickson J. in Angle, supra, is the fundamental requirement that the decision in the prior proceeding be a judicial decision. According to the authorities … there are three elements that may be taken into account. First is to examine the nature of the administrative authority issuing the decision. Is it an institution that is capable of receiving and exercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicial manner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner? [43] AMAPCEO asserts that it ought to go without saying that the Board is both capable of being judicial, and that certification applications are required to be made in a judicial manner. If there were any doubt, the Courts have held that Board decisions are capable of being made in a judicial manner such that they attract the application of issue estoppel. [44] In this case, AMAPCEO says, the decision was in fact made in a judicial manner. The decisions were the product of extensive court-like proceedings. Witnesses were examined and cross-examined under oath. Documents, unless admitted by consent, were proved through witnesses. Both written and oral arguments were made by all parties. Authorities were cited and points of law were made. Throughout, all parties were aware of what issues were to be decided, including the question of which unit Sergeants belonged to. [45] The proceedings before the Board were comprehensive, judicial, fair, and final. The parties were always aware of the matters at issue, always given the chance - 16 - to adduce evidence, and were always given the opportunity to be heard. The Board issued four distinct sets of reasons finding that Sergeants fell in AMAPCEO’s unit, and not OPSEUs. None of them have ever been disturbed on a request for reconsideration or an application for judicial review. [46] Further, AMAPCEO argues that the Board’s decision is also final. The fact that OPSEU neither sought reconsideration from the Board nor applied for judicial review is conclusive on this point. [47] Finally, the parties are identical. PSAC’s absence from the GSB litigation is irrelevant. What matters is that the Crown, OPSEU, and AMAPCEO were all full participants in the PSAC case, where the issues OPSEU now seeks to litigate anew were, AMAPCEO asserts, considered and determined. [48] AMAPCEO argues that there is no reason to relieve against the application of issue estoppel in this case. The general policy justifications for the doctrine support its application here and neither OPSEU nor the Crown can point to any unfairness in its application in this case. [49] Underpinning the doctrine of issue estoppel is a clear recognition of the importance of the principle of finality. In Danyluk, the Supreme Court discussed the importance of finality in the following terms: The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [50] The Court noted, however, that balanced against the interest of finality were concerns respecting fairness: - 17 - Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Where, as here, its application bars the courthouse door against the appellant’s $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted. [51] The twin-goals of finality and fairness inform the circumstances in which a decision maker should decline to apply issue estoppel. As the Supreme Court has recognized, there is no closed list of factors to consider. Rather “[t]he objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.” [52] Here, AMAPCEO argues the concern for the orderly administration of justice weighs strongly against permitting OPSEU to re-litigate questions already decided in PSAC. This is particularly true in light of labour relations policy, which places a premium on the expeditious resolution of workplace disputes. Sergeants have waited too long to learn whether they can be represented by a union. It has been more than seven years since the certification application in PSAC was filed. These disputes were filed in 2013 and 2017. It has taken months of work to get to the stage where the parties were to begin to call evidence, and now preliminary arguments about an issue that was already the subject of two different Board decisions have derailed this case. [53] Requiring the parties to re-litigate the additional issues identified by OPSEU will take even longer. The PSAC case is proof of that. In a certification proceeding, which the Board is required to deal with expeditiously, it took four years to determine that AMPACEO, not OPSEU, represented Sergeants if they were not excluded from collective bargaining. There is no reason to think litigating the issue again would take significantly less time. - 18 - [54] This is the quintessential case in which the interest of finality should be given paramount consideration. There are no fairness concerns that weigh against finality. Given the extensive review of the PSAC litigation contained in these submissions, there is no tenable claim that OPSEU could make that it would be unfair to hold them to the result in the OLRB decision. OPSEU had every opportunity to make its case that they represented Sergeants. They had exactly the same procedural rights as AMAPCEO did. They operated under identical timelines. They read the same Board decisions as AMAPCEO did directing them to adduce evidence on this point. They argued their case as they chose to, and they should be required to live with the result. [55] AMAPCEO relies on Re Ontario Hydro and the Society of Ontario Hydro Professional and Administrative Employees (Re Ontario Hydro and the Society of Ontario Hydro Professional and Administrative Employees (1998), 70 LAC (4th) 321 (Brown)). In that case, an issue arose as to which of two unions represented first-line supervisors of Mechanical Maintainers – The Society, or the Power Workers Union. The PWU first participated in a reference to the Canadian Industrial Relations Board and argued that the two unions had entered into an agreement about the representation of the workers in question. They argued that this settlement barred further litigation of that issue. The CIRB found that there had not in fact been a settlement, and so there was no bar to arbitrating the dispute. In the subsequent arbitration between the Society and the Employer, the PWU intervened and again challenged the arbitrator’s jurisdiction on the basis of the same alleged settlement it had reached with the Society. The PWU argued that the CIRB’s determination of the settlement point should not be followed by the arbitrator because it was wrong, and in any event, the issue was decided for a different purpose than it was being raised at the arbitration. The arbitrator disagreed, holding that: As the appropriate elements to apply the doctrine of issue estoppel have been established as indicated above, it would be wrong in my opinion to require the parties to again litigate the same dispute concerning jurisdiction that has been - 19 - dealt with and a final decision given by a competent tribunal in the interests of fairness, additional delay and cost to the parties. [56] AMAPCEO asserts the same reasoning should be adopted in this case. The Employer’s Argument [57] The Employer argues that AMAPCEO’s submissions with respect to res judicata and issue estoppel must be rejected for two main reasons. First, AMAPCEO’s submissions about the binding nature the Board’s PSAC decisions ignore and gloss over what was actually before the Board and the scope of its inquiry. Second, the Board decisions are all decisions relating to a preliminary objection made in an Application for Certification that was eventually dismissed without a hearing on the merits. The Divisional Court would have declined to hear an application for judicial review by the Employer or OPSEU in these circumstances. [58] With respect to the first point, the Board only heard evidence and argument with respect to the fundamental bargaining structure established by the CECBA, 1993, as it existed as of 1995. The evidence before the Board only covered a period that began just prior to the enactment of CECBA, 1993 and concluded in 1995 with the establishment of the AMAPCEO bargaining unit. The issue over which the Board had jurisdiction was an Application for Certification brought by the PSAC with respect to the Sergeants. In its February 28, 2014 decision, the Board confirmed, in addressing the preliminary objection, it would deal only with a very narrow issue. However, at paragraph 59 of the February 28, 2014 decision, the majority concluded that it could not determine the narrow issue without hearing viva voce evidence. [59] The majority of the Board was of the view that in interpreting CECBA, 1993 and Order in Council No. 243/94, evidence ought to be heard regarding the historical factors leading up to the enactment of CECBA, 1993 and OIC 243/94. Prior to the Board’s final February 3, 2016 decision, the scope of what was before the - 20 - Board was again modified to include “evidence regarding why each of AMAPCEO or OPSEU is of the view that it previously secured bargaining rights for the individuals who are the subject of this application.” [60] As directed by the Board, no evidence or argument related to post-1995 events were presented by any of the parties. The issue the parties addressed was very narrow, only dealt with a very specific and narrow period of time, and was limited to an interpretation of the relevant provisions in CECBA, 1993, in conjunction with OIC 243/94. The Parties did not address, nor did they put into evidence, the agreements, settlements, or any collective agreement scope language changes that occurred after 1995. Going further in the evidence would not have been relevant to the preliminary motion to dismiss the application for certification. Importantly, the February 28, 2014 Vice-Chair’s minority decision found that CECBA, 1993 and OIC 243/94 on their own were not a bar to the Application for Certification. He then concluded that the issue of whether OPSEU or AMAPCEO had abandoned their bargaining rights with respect to the subject employees ought to be determined next (at para 53). Had abandonment become an issue to be heard before the Board, facts and evidence post-1995 would have then become relevant and placed before the Board. It was for this reason that the parties were asked to lead evidence on which bargaining agent previously secured bargaining rights at the time of the establishment of AMAPCEO in 1995. [61] As Vice-chair Shouldice (in dissent) stated at the end of paragraph 53 of the Board’s decision: “The parties have not yet called evidence on, or argued, the issues of abandonment or the exercise of managerial functions”. What is clear, submits the Employer, is that by 2008, any bargaining rights that AMAPCEO may have secured with respect to the Sergeants, in the event they were improperly excluded, were clearly transferred to OPSEU. Even AMAPCEO in its September 4, 2020 submissions concedes at paragraph 40 that the Board PSAC decisions only considered which bargaining agent “had bargaining rights in the first place” prior to there being any review of subsequent events that could lead to a finding of abandonment. That is, regardless of which bargaining agent may have held - 21 - potential bargaining rights as of 1995, there was no evidence or argument placed before the Board in relation to what took place thereafter. [62] The July 31, 2017 decision of the Board came about following amendments made to CECBA in 2016. The majority decision (beginning at paragraph 30) concluded that nothing in the 2016 amendments impacted the February 3, 2016 majority decision. In essence, the majority essentially indicated that the amendments made no difference to their analysis and concluded at paragraph 33 that the “February 3 decision of the Board is final.” The minority decision of the Vice-Chair, however, concluded that the amendments were material and essentially did away with any lingering arguments relating to abandonment (as the minority decision from February 3, 2016 essentially concluded that it was unclear as to whether abandonment was a possibility under CECBA, 1993). No new evidence was put before the Board, and its pre-1995 factual matrix remained the same. [63] To accede to AMAPCEO’S submissions, argues the Employer, would be to ignore a decade’s worth of labour relations negotiations amongst AMAPCEO, OPSEU, and the Crown which was never put on the record before the Board. This labour relations evidence, all of which took place after the time period the Board in the PSAC decisions established as relevant, were the September 10, 2008 Memorandum of Agreement, the Memorandum of Settlement with respect to the 2009-2012 Collective Agreement, dated April 27, 2009, the withdrawal of the 2007 AMAPCEO grievance in which it claimed that the Sergeants were in its bargaining unit, the scope clause from the 2014-2018 AMAPCEO Collective Agreement which essentially incorporated the September 10, 2008 MOA. Furthermore, the Memorandum of Settlement with respect to the 2009-2012 Collective Agreement, dated April 27, 2009 contains a further Memorandum of Agreement at page 43. The MOA at p. 43 was made to resolve disputes relating to the implementation and interpretation of the September 10, 2008 agreement. In paragraph 6 of the MOA the parties explicitly agreed that the 2008 agreement - 22 - resolved the outstanding GSB and Board disputes regarding the inclusion of the Sergeants in AMAPCEO’s bargaining unit. [64] In response to AMAPCEO’s submission that the Crown and/or OPSEU ought to have sought judicial review the Employer argues that the reality was that the Board’s PSAC decisions were all in relation to a preliminary motion to dismiss an Application for Certification. The true issue before the Board was whether the PSAC could represent the employees in question. The Divisional Court will not hear judicial review applications relating to preliminary issues where the matter is dismissed on its merits and the merits are not also the subject of review. For example, in the October 6, 2005 GSB decision of MCSCS and OPSEU (Lariviere) (2005 CanLII 55163 (ON GSB), the GSB dismissed a preliminary objection to its jurisdiction to award a remedy that would also be the subject of benefits under the Workplace Safety and Insurance Act. In the result, however, the requested remedies were ultimately dismissed by the Vice-Chair on the merits. Even though the Crown succeeded in having the matter dismissed, it sought judicial review of the decision on the preliminary objection. The Employer notes that in its June 22, 2007 decision (HMQ v. OPSEU, June 22, 2007, unreported), the Divisional Court held that the matter was moot, stating at paragraph 3 that “While there is a continuing legal issue which will likely recur under this Collective Bargaining Agreement, it will arise in other facts and as to other claims for relief.” The Court found at paragraph 5 that it was “preferable that these decisions be made in the presence of live issues.” [65] Essentially, AMAPCEO is suggesting that the Crown and/or OPSEU ought to have asked the Court to remit the preliminary issue back to the OLRB and then to proceed to hear days of evidence post-1995 to determine whether bargaining rights evolved or not. That would be a ludicrous proposition where the Application was dismissed without a hearing on the merits. [66] The 2008 Agreement precludes AMAPCEO from bringing the present disputes forward, and the Employer has not waived any of its rights with respect to - 23 - enforcing the 2008 Agreement. The objection was raised with respect to the 2013 grievance and the 2017 grievance was identical and simply consolidated with the 2013 – the same issues were at play and the same objection was live. [67] The Employer argues the September 10, 2008 MOA as well as the subsequent Memorandum of Settlement with respect to the 2009-2012 Collective Agreement, dated April 27, 2009, are substantive in nature and they further operated to redefine the labour relations landscape in existence in the Ontario public service at the time. As a result of the 2008 MOA, AMAPCEO was no longer a “tag end” bargaining unit (a key factor in the Board’s PSAC decisions), and could no longer be the bargaining agent for employees working at adult and youth institutions (and led to the wall-to-wall correctional unit being solely represented by OPSEU). [68] Furthermore, as set out below, the September 10, 2008 MOA became a key component of the AMAPCEO scope clause. As stated above, AMAPCEO was no longer a “tag end” bargaining unit, and OIC 243/94, which was a foundational legislative instrument that assisted the Board in agreeing that as of 1995 AMAPCEO was a “tag end” unit, was no longer applicable in defining the AMAPCEO bargaining unit. [69] It was never the Employer’s position that the Sergeant group was “abandoned” through the 2008 MOA, the subsequent Collective Agreement, or the formal withdrawal of the 2007 inclusion grievance. Rather, it is the Employer’s position that those agreements, including subsequent amendments to the OPSEU scope clause, all worked together to move any correctional employee previously in the AMAPCEO bargaining unit into the OPSEU correctional bargaining unit. Although it was, and still is, the Employer’s position that Sergeants are properly excluded and, to the extent that they are improperly excluded, they would be within the OPSEU correctional bargaining unit. - 24 - OPSEU’s Argument [70] OPSEU maintains its position that its standing should be determined without reference to any arguments made by AMAPCEO as to the issues of res judicata, issue estoppel or abuse of process. The issue of the PSAC decisions is irrelevant given the Crown’s position that if the Sergeants are employees then they should be in the OPSEU Correctional Bargaining Unit. At this stage of the proceedings, the merits of the Crown’s position or AMAPCEO’s response to that position do not matter. What matters is that these two parties are fighting about the Sergeants and one of them is arguing that they cannot be placed in the OPSEU bargaining unit and the other is arguing that if they are employees they should be in the OPSEU bargaining unit. Based on those arguments, there can be little doubt that OPSEU’s interests are directly impacted by the issues raised in the grievance and therefore OPSEU should be given standing to lead evidence and make arguments to defend its interest in these proceedings. [71] In the alternative, OPSEU makes the following submissions with respect to the impact of the PSAC decisions. First, it is important that what was at issue before the Board was that PSAC applied for certification with respect to the Sergeants. The Crown, AMAPCEO, and OPSEU all opposed that certification application on the basis that there could not be any “greenfield” certification applications given the provisions of CECBA, 1993 and that if a displacement application was filed it had to include the entire relevant OPSEU bargaining unit or the AMAPCEO unit. In other words, there was a preliminary motion brought by the Responding Parties to PSAC’s application for certification seeking to dismiss the application. [72] OPSEU submits that what the Board did in its February 3, 2016 decision is to grant a preliminary motion by all parties opposed to the certification on the basis that there could not be a “greenfield” certification and that PSAC would have to displace AMAPCEO or OPSEU as the bargaining agent for the entire relevant bargaining unit. A close reading of the Board’s February 3, 2016 decision indicates that the Board did not finally determine that the Sergeants were - 25 - represented by either AMAPCEO or OPSEU. The decision of the majority in the February 3, 2016 decision begins at paragraph 54. At paragraph 58 of the decision, the majority indicates that there are two types of certification applications contemplated by the Board: a “greenfield” application and a “displacement” application. At paragraph 69, the majority finds that “we consider it a contradiction of the intention behind CECBA, 1993 – current, to permit an eighth (or more units) through “greenfield” applications”. The majority clearly concludes that there cannot be “greenfield applications” in the Ontario Public Service to which CECBA, 1993 applies. The majority then goes on to consider whether a “displacement” application is possible under CECBA, 1993. At paragraph 70, the majority cites the jurisprudence that an applicant “takes the unit as it finds it” and can apply to displace the entire bargaining unit in the last three months of the existing term of the collective agreement. The majority then discusses voluntary recognition under CECBA, 1993 at paragraph 71 and then states “Those subject to this application are agreed to be in AMAPCEO versus OPSEU.” [73] OPSEU submits that the Board does not conclusively determine that the Sergeants were represented by AMAPCEO. This is clear in second to last substantive paragraph of the decision (para. 74) where the majority states: “In our view, the only manner in which a new Bargaining Agent can be recognized is by displacing AMAPCEO or OPSEU as the bargaining agent. Partial displacement is not possible. Moreover, the issue of abandonment was not before this panel at this time”. The majority would not use those words if they had conclusively and finally determined that the employees in question were represented by AMAPCEO. [74] OPSEU also notes that the Board explicitly indicates that the “issue of abandonment was not before this panel at this time.” Therefore, the issue of whether AMAPCEO or OPSEU represents the “sergeants” remains live and undetermined. Therefore, any “finding” that AMAPCEO was the bargaining - 26 - agent for the Sergeants was not relevant to the majority determination of the preliminary motion and was not finally determined by the Board. [75] In addition, OPSEU points out, the issue was not determined on the basis of a full evidentiary record on the clear question of who was entitled to represent the “Sergeants” at the time of the Bill 70 amendments. The Board did not request any submissions from the parties as to whether AMAPCEO or OPSEU represented the Sergeants as a result of the Bill 70 amendments. Therefore, OPSEU submits that the Board did not conclusively determine that the Sergeants were represented by AMAPCEO rather than OPSEU. That was not the subject of the preliminary motion that was before the Board. Second, the Board did not consider the entire history of the representational issue between the Crown, AMAPCEO and OPSEU. The focus of the evidence was on the issue of which of AMAPCEO or OPSEU had bargaining rights for the Sergeants after the enactment of CECBA, 1993 until 1995 when the AMAPCEO bargaining unit was first established. [76] In 2007, AMAPCEO filed a grievance seeking the inclusion of the Sergeants in its bargaining unit and that the grievance was withdrawn by AMAPCEO. That is not a fact that is recorded in any of the PSAC decisions. Nor does it appear that the Board considered or made any determination as to the impact of the 2008 MOA between AMAPCEO and the Employer which purported to reconfigure the OPSEU, AMAPCEO, and other bargaining units. In fact, as set out above, the majority of the Board specifically states that the issue of abandonment and what that may mean was not before them. The Board also does not record any evidence (as opposed to the submissions of Counsel) dealing with which trade union represents the Sergeants past the mid to late 1990s. That is because of the Board’s focus on the preliminary motion, which, OPSEU asserts, had nothing to do with the representational issue as between OPSEU and AMAPCEO. [77] OPSEU argues that the Danyluk conditions are not present here and therefore there can be no res judicata or issue estoppel. With respect to the first ground, - 27 - the same question has not been decided in the OLRB proceeding. As set out above, the question that was decided was, on a preliminary motion made by all the Responding Parties to the application, whether the provisions of CECBA, 1993 (both the original provisions and the Act as amended by Bill 70) prevented PSAC from bringing a “greenfield” application or an application to displace part of an existing bargaining unit. At the end of the PSAC proceedings, the Board allowed the Responding Parties motion and dismissed the certification application. The issue of whether AMAPCEO or OPSEU represented the affected employees was neither necessary to that decision nor was it the subject of full evidence and argument. [78] With respect to the second condition, the final decision was to allow the Responding Parties’ motion, not to determine the issue of which union represented the affected employees. If we assume for the purposes of argument that the responding parties were unsuccessful in their motion to dismiss PSAC’s application for certification then the Board would have been required to determine the abandonment issue (and any other issues relating to which union represented the Sergeants). The Board would have had to determine the competing representational claims of AMAPCEO or OPSEU. However, because the Board allowed the Responding Parties’ preliminary motion, it did not and could not finally determine the representation issue. [79] The “finality” of the Board’s decision is questionable given their own statement that the abandonment issue had yet to be determined and because it is clear that the Board did not have a complete factual record or full argument before it on the representational issue. [80] Further, the reason why no party judicially reviewed the board’s decision is obvious; the responding parties were successful in convincing the Board to dismiss PSAC’s certification application. They won. It would have been futile for either OPSEU or the Crown to attempt to judicially review a decision where the Board allowed their own motion on the basis that neither OPSEU nor the Crown - 28 - accepted an alleged “finding” on a collateral representational issue with which they did not agree. [81] Finally, as the Court points out in Danyluk, the application of the doctrine of issue estoppel is discretionary. In Danyluk the Court declined to apply the doctrine of issue estoppel due to the unfairness of the earlier proceedings in which the prior finding was made. OPSEU is not alleging that the Board proceedings in the PSAC cases were unfair. However, the application of the doctrine in the circumstances of the instant case would be unfair. It would be unfair because the representational issue wasn’t the question before the Board. It would be unfair because there was not a full evidentiary record before the Board beyond the testimony which focused on the status of the disputed employees from 1993 to 1995. The “abandonment” issue, the effect of AMAPCEO’s withdrawal of its grievance, the 2008 MOA and other agreements, and the impact of OPSEU’s Recognition clause (set out further below) etc., all could impact the representational issue. It would be unfair because the actual “finding” that the disputed employees were represented by AMAPCEO and not OPSEU was unclear, not the focus of the PSAC decisions, and not subject to any significant or detailed analysis. [82] At best, the Board in the PSAC decisions made a preliminary finding that the disputed employees, if they were eligible for collective bargaining, would have been in the AMAPCEO bargaining unit, as a result of the proclamation of CECBA, 1993. However, it is also clear that AMAPCEO has never actually represented any of these employees and that they have, on at least one occasion, withdrawn a grievance in which they claimed the right to represent those employees. It would be manifestly unfair for the GSB to apply the doctrine of issue estoppel based on an unclear finding by the Board on a preliminary motion brought by all the Responding Parties based on an incomplete record. It would also be manifestly unfair to deny OPSEU standing on other issues (such as the abandonment issue) where its interests are clearly affected. - 29 - [83] Moreover, the issues raised by AMAPCEO’s grievance are longstanding and complex. There is a significant interplay between the statute, various agreements (such as the 2008 MOA), and Collective Agreement Scope and Recognition clauses of the AMAPCEO and OPSEU collective agreements. It is impossible to predict how all of this will fit together in the end. For example, if AMAPCEO is found to have abandoned its bargaining rights, what happens then? OPSEU has an interest in that determination. If AMAPCEO is found to have agreed with the Crown in the 2008 MOA to have relinquished its right to represent “sergeants”, what happens then? OPSEU has an interest in that determination. At some point in these proceedings, the GSB will have to determine whether the employees are managerial and therefore excluded from collective bargaining under CECBA, 1993 (as amended). OPSEU has relevant evidence and submissions to make on this issue because its members work with the “sergeants”. OPSEU has an interest in that determination because it represents the employees that would be “managed” by excluded staff or “supervised” by the “sergeants” and because it has a general interest in the interpretation of who is an “employee” under CECBA, 1993 as the largest bargaining agent in the Ontario Public Service. [84] Finally, there is the issue of the impact of OPSEU’s current recognition clause for the Correctional Bargaining Unit which is set out in part below: For greater certainty, the Correctional Bargaining Unit is composed of Crown employees who are public servants employed in positions responsible for: (a) the security, control, supervision, care and rehabilitation of adult offenders and young offenders in provincial correctional institutions/facilities (including maximum security units at the provincial psychiatric hospitals); (b) providing related community-based probation, parole and rehabilitation services to adult and young offenders; (c) other positions that are headquartered at adult correctional institutions; youth justice facilities;….. (d) employees in positions or classes that have been or maybe established within the above description. (emphasis added) [85] OPSEU asserts this recognition clause is relevant to the issues in dispute in this grievance. This clause will have to be interpreted by the GSB in these - 30 - proceedings. There is no question that this clause covers Sergeants who are “employees” that are headquartered at correctional facilities and youth justice facilities. As mentioned above, the Employer is taking the position that if the Sergeants are not managerial then they would fall into the Correctional Bargaining Unit represented by OPSEU. It would be a strange result if OPSEU is not granted standing to make submissions on its own Recognition clause. Decision [86] There is no dispute that the GSB has the authority to apply issue estoppel/res judicata and that the test for doing so is set out in the Danyluk decision: a. The issue that had been decided in the previous proceeding is the same as the issue in the current proceeding; b. The decision in which the issue was previously decided was judicial and final; and c. The parties to the previous proceeding are the same as those in the present proceeding. [87] There is no serious challenge to the fact that the parties to the Board’s decision are the same as before me given that AMAPCEO, OPSEU, and the Crown were all parties before the Board. In my view, the fact that PSAC was also present before the Board makes no difference to the application of issue estoppel and I do not take the parties before me to dispute that. [88] There can also be no serious dispute that the Board’s decisions were “judicial” even though the vice-chair was in the minority of the relevant decision(s). The Board is a respected administrative law body that makes decisions after holding a hearing, whether written or oral. In this case, the Board held an oral hearing at which the parties, represented by counsel, were afforded the opportunity to call and cross-examine witnesses, introduce relevant documents, and make full submissions. The Board then issued written decisions. These are all hallmarks of judicial decision making. It was certainly at least equal in judicial quality to that - 31 - of an Employment Standards Officer’s decision under the Employment Standards Act as in Danyluk. [89] The real issue before me is whether the Board’s decisions respecting the identity of AMAPCEO as the union which has (or had) bargaining rights over the Sergeants was a final one, and, if so, whether it would be fair to apply that decision to exclude OPSEU from this proceeding. [90] To the extent the Employer and OPSEU argue that the Board did not set out to determine which one of OPSEU or AMAPCEO had bargaining rights over the Sergeants, I disagree. While admittedly, this was secondary to the main issue it faced, that being whether it was possible for PSAC to apply for a new bargaining unit under CECBA, my reading of the Board’s decisions is that it decided to determine, as part of the preliminary process it was engaging in, to determine which one of the two unions represented the Sergeants. [91] It is also less clear whether the Board made a determination that AMAPCEO represented the Sergeants prior to 1995 or at the time of the Application for certification. The relevant issue before the Board, as it saw it, can be gleaned from the Board’s January 14, 2015, decision, in which it accepted PSAC’s position on the question of having to call evidence on abandonment: We agree with the position asserted by PSAC. Having regard to the nature of the evidence to be called by AMAMPCEO with respect to the question of whether CECBA is a bar to this application, it makes practical sense to hear evidence regarding why each of AMAPCEO or OPSEU is of the view that it previously secured bargaining rights for the individuals who are the subject of this application. However, it is not yet necessary to hear evidence regarding the question of abandonment or any other previously identified legal issue that may have the effect of negating any bargaining rights secured by AMAPCEO or OPSEU. (emphasis added) [92] From that excerpt, the Board appeared to recognize that what it was doing was determining which Union had “previously secured bargaining rights” as opposed - 32 - to which Union currently had bargaining rights. This distinction is emphasized by the fact that the Board specifically was not dealing with arguments that either union had abandoned its bargaining rights or whether their bargaining rights had been negated by a “previously identified legal issue”. [93] This conclusion is reinforced by the fact that there seems to be no dispute that the evidence heard by the Board related only to events that occurred in and around 1995 with the establishment of the AMAPCEO bargaining unit. No evidence or argument related to post 1995 events were presented by any of the parties, nor was it requested by the Board. The issue the parties addressed was very narrow and was explicitly limited to an interpretation of the relevant provisions in CECBA, 1993 in conjunction with OIC 243/94. The Parties did not address, any agreements, settlements, or any collective agreement scope language changes that occurred after 1995. [94] However, the distinction between the time at which the Board was making its determination became somewhat lost in later decisions. In the “final decision” before the Divisional Court remitted the matter back, the Board described the issue before it as follows: 3. The parties were directed to present any and all witnesses who could enlighten the Board in its deliberations and decision on the question before the Board: is PSAC’s application appropriate or is the assertion of the Crown, OPSEU and AMAPCEO that there are only seven units contemplated by CECBA? OPSEU is the bargaining agent for six of those units and the seventh unit is represented by AMAPCEO. The majority decision determined that issue but then in a single sentence at the end of paragraph 71 determined the representation issue as well: 70. We consider the situation to be falling under S, 7(3) of the LRA – an existing collective agreement on the date of application which, according to our jurisprudence, an applicant must take the bargaining unit description in the current collective agreement as the unit for displacing (raiding). Such displacement must be applied for during the last three months of the Collective Agreement in order to be deemed a timely application (see S.7.4 of the LRA). Clearly PSAC’s application does not meet this test. 71. Our interpretation is congruent with CECBA’s underlying and expressed handling of a “greenfield” application available under S.66 (formerly S. 61) to a trade union who believes such application is possible in the circumstances of a - 33 - “voluntary recognition” by the employer. It is clear the CECBA, 1993 was a formulated voluntary recognition event because Section 24(4) of CECBA states: Section 61 of the Labour Relations Act (termination of bargaining rights after voluntary recognition) does not apply with respect to the designation of the union. emphasis added as does Section 24(4) of the current CECBA to the same effect renewing S.66 of the LRA, 1995. The significance of this promise is to protect the new collective bargaining relationship from any challenge ordinarily available. This suggests that the only right up for acquisition are those articulated in CECBA as subject of the Crown’s voluntary recognition. Those subject to this application are agreed to be in AMAPCEO versus OPSEU. (emphasis added) The emphasized last sentence of paragraph 71 of the Board’s decision is a significant part of what AMAPCEO relies on. However, there are clearly issues with that sentence. The statement that the Sergeants are “agreed to be in AMAPCEO versus OPSEU” is difficult to understand. Nobody suggests that both the employer and OPSEU agreed to that statement during the course of the hearing. I assume the Board came to that conclusion based on the fact that OPSEU did not call any evidence on the issue. In addition, the sentence ignores the “abandonment” issue which the Board had stated that it would not be deciding. [95] The majority of the Board went on to say: 74. The Government, as the employer, decided how it wished to bargain collectively with CE/PS’s. The Government’s actions were deliberate when they drafted CECBA and as the Government they had the power to decide the format the legislation would take. Its wishes are executed by Statute and Orders in Council. CECBA was deliberately created by the Government as a complete coherent, and all- encompassing Statute creating a stable environment within which to bargain collectively with CE/PS’s. A CE/PS as an “employee” falls into one of the seven units created under CECBA. In our view the only manner in which a new Bargaining Agent can be recognized is by displacing AMAPCEO or OPSEU as the bargaining agent. Partial displacement is not possible Moreover the issue of abandonment was not before this panel at this time. (emphasis added) - 34 - [96] On the whole, the Board was saying: 1) to the extent an application for certification is permitted in the public service it can only be a displacement application for certification among the employees (all of the employees) in the bargaining unit. That is because the then-existing collective agreement structure of seven bargaining units, six represented by OPSEU and one by AMAPCEO covers all public sector employees (excluding of course managers and above) 2) That PSAC’s application must be dismissed at a minimum because it was not filed in the “open period”- the last three months of any collective agreement. 3) That “Those subject to this application are agreed to be in AMAPCEO versus OPSEU”. I disagree that the sentence in paragraph 74: “In our view the only manner in which a new Bargaining Agent can be recognized is by displacing AMAPCEO or OPSEU as the bargaining agent” contradicts this conclusion. That appears to be a general statement about how other unions might apply for certification of one of the seven bargaining units and not a statement about the case before the Board. I conclude this because of the use of the phrase “a new bargaining agent” as opposed to PSAC. 4) That the Board did not deal with the issue of abandonment because in its view it was not before it “at this time”. [97] It is not my role to criticize or review the Board’s decision. However, to the extent I must assess whether the Board’s decision was a “final” one for the Danyluk criteria and to the extent I must determine whether it would be fair to apply issue estoppel to the case before me, it is necessary to determine what the Board really meant when it stated that “those subject to this application are agreed to be in AMAPCEO versus OPSEU”. [98] In my view the reasons in dissent provide some assistance in this regard. Vice- chair Shouldice identified the issues that were pled: 82. The pleadings and submissions filed by the parties raise a number of issues, including (a) whether the provisions of CECBA preclude the filing of this application; (b) whether OPSEU and/or AMAPCEO have abandoned any bargaining rights that they may have had to represent the employees that are the subject of this application; (c) whether OPSEU and/or AMAPCEO may be subject to an estoppel or waiver with regard to their bargaining rights; (d) whether the - 35 - employees who are the subject of this application are properly excluded from collective bargaining because they exercise managerial functions and/or are employed in a confidential capacity in relation to labour relations; and (e) whether the unit of employees that PSAC desires to represent is a unit of employees appropriate for collective bargaining. ... 100. Finally, I consider, briefly, the second issue in dispute in this stage of the proceeding, namely which of AMAPCEO or OPSEU previously secured bargaining rights for the individuals who are the subject of this application. In paragraph 71, above, my colleagues state that the individuals subject to this application are in the AMAPCEO bargaining unit, and not the OPSEU unit. I agree. It is evident from the uncontradicted evidence of Mr. Stambula that, if the PSAC were to be successful in its assertion that the bargaining rights to represent the individuals in dispute in this proceeding have been abandoned, the union that must be found by the Board to have abandoned those bargaining rights is AMAPCEO, not OPSEU. 101. To be absolutely clear, AMAPCEO very strongly denies that it has abandoned any such bargaining rights. Whether PSAC can establish that those bargaining rights were abandoned by AMAPCEO is a question left for another day. However, there is no evidence before the Board that OPSEU ever desired to represent the individuals who are the subject of this application, and the clear and unchallenged evidence offered by Mr. Stambula is that AMAPCEO did. [99] As can be seen, vice-chair Shouldice makes it clear that, at least in his mind, what the Board was deciding was which of the two unions would have to face the claim that it had abandoned bargaining rights over the Sergeants. In his view, that union was AMAPCEO because, based on the evidence the Board heard, all of which was with respect to the period before 1995, (that is, before the time the Employer and OPSEU say AMAPCEO relinquished its bargaining rights), OPSEU had no claim. [100] These are complicated facts involving complicated legal issues. However, it is important that the Board in the January 14 decision identified the issue as whether AMAPCEO or OPSEU “previously secured bargaining rights for the individuals who are the subject of this application” and not which one of them, if either, currently held bargaining rights. Further, both the majority and the minority are clear that the issue of abandonment was not decided by this decision. Moreover, it seems that the word “abandonment” as used by the Board means both that the bargaining rights over employee Sergeants were lost - 36 - through longstanding indifference or deliberate choice, but also that those rights may have been relinquished through one or more labour relations agreements. [101] In these circumstances, I find it difficult to accept that the Board’s decision that the Sergeants are in the AMAPCEO bargaining unit is a final one. I am satisfied that what the Board determined was that AMAPCEO was the proper responding party to the application for certification and was the union that would be the subject of a claim that it had previously relinquished its bargaining rights. The Board’s decisions, in their totality, stand for the proposition that neither the Crown nor OPSEU was required to lead evidence about the 1998 MOA or the other post-1995 labour relations events either because that went to “abandonment” or a “legal issue that may have the effect of any bargaining rights secured by” the Unions. [102] It must also be said that the reasoning behind the majority’s conclusion that “those subject to this application are agreed to be in AMAPCEO versus OPSEU” is difficult to identify unless that was for the purpose of identifying the union which may have “abandoned” its rights. Nowhere in the decision, other than at this point, is there a suggestion that the parties “agreed” the Sergeants to be in AMAPCEO as opposed to OPSEU. In fact, the majority’s description of AMAPCEO’s argument suggests otherwise: “AMAPCEO supported the submissions made by the Crown and OPSEU. It went one step further, asserting that the individuals who are the subject of this application, if they are not excluded from bargaining because they exercise managerial functions and/or are employed in a confidential capacity in matters relating to labour relations, are actually in its bargaining unit. (emphasis added). Nowhere in the positions of the parties’ portion of the decision does the majority suggest that either the Crown or OPSEU accepted AMAPCEO’s “one step further”. [103] I also note that that one of the main reasons why OPSEU was participating in the case was because it sought to represent the Sergeants. Its continued participation in the case suggests that it had not relinquished that position. The - 37 - Board’s decision only makes sense if it was determining the identity of the responding party for the purposes of the abandonment and related issues. [104] AMAPCEO’s argues, with some merit, that it was open for the Crown or OPSEU to judicially review the Board’s decision or seek reconsideration of it. I agree with OPSEU and the Crown that an application for judicial review would likely have not been heard by the Court. I doubt that it would have become involved in a dispute about what the Board’s decision meant. A request for reconsideration is a different matter; the Board may well have been responsive to a request to clarify whether its finding was a final one. However, its failure to do so is not determinative because the Employer and OPSEU were entitled to rely on the fact that what the Board was deciding was whether AMAPCEO or OPSEU had the right to represent employee Sergeants at a particular point in time, that is around 1993-1995. Since the Board was not determining the abandonment issue, it was rightfully not concerned about the Board’s finding that any bargaining rights that existed in 1993 were held by AMAPCEO, which it likely agreed with. It was only later that any rights that AMAPCEO had may, as the employer and OPSEU allege, have been abandoned or relinquished. [105] In short, I am satisfied that the representational issue the Board decided was which Union represented the Sergeants in 1993-1995 in order to determine whether that union had abandoned or relinquished its bargaining rights. That union, the Board decided, was AMAPCEO. I am also satisfied that, to the extent the Board did decide that AMAPCEO currently represents the Sergeants (as opposed to in the early 1990s), it did not decide whether it had abandoned those bargaining rights or whether it had relinquished those rights by some other legal means. Since that is clearly a live issue, the Board’s decision that AMAPCEO represents the Sergeants (assuming they are employees) was not a final one. [106] Even if I am wrong about that, and the Board’s decision was final, under the circumstances it would be unfair to apply issue estoppel/res judicata in these disputes. When invited by the Board to lead evidence about the representational - 38 - issue, the parties (or at least OPSEU) understood that was supposed to be with respect to a limited time period. That is almost certainly why OPSEU called no evidence: it did not dispute that at the start AMAPCEO had the bargaining rights as it claimed. It is what happened after, that was of concern to OPSEU and the Employer. It would be unfair to apply the doctrine when, because of the Board’s decision that it did not want to hear evidence of abandonment, OPSEU and the Employer were precluded from leading evidence and making argument about whether AMAPCEO had abandoned or otherwise relinquished its bargaining rights. They are entitled to the opportunity to make full argument on those issues. [107] For all of the foregoing reasons, I find that OPSEU has a significant legal interest in this case despite the Board’s decision. In particular, as OPSEU notes, this is a case where the Employer asserts the bargaining rights with respect to the Sergeants are OPSEU’s. It must be allowed to participate in determining whether that is the case, and in particular whether AMAPCEO relinquished those rights to OPSEU after 1995, which is still a live issue. Dated at Toronto, Ontario this 25th day of January, 2021. “Brian McLean” Brian McLean, Arbitrator