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HomeMy WebLinkAbout2019-2542.Policy.21-05-06 DecisionCrown 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# 2019-2542 UNION# G-017-19-TS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Policy) Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER John Saunders Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING August 19 and 28, December 2, 2020; January 29, February 11 and 25, 2021 -2- DECISION [1] In the round of collective bargaining giving rise to a renewal collective agreement with the period June 2, 2014 to June 1, 2018 (the “2014 collective agreement”), the parties inserted Article 39.4(6) which provided for a $.25 / hour annual increase for Transit Safety Officers (“TSOs”) over and above the across the board (“ATB”) increases payable to TSOs and most other employees. On April 20, 2018, the parties signed a Memorandum of Settlement (the “2018 Memorandum”) with respect to the terms of a renewal collective agreement for the period June 2, 2018 to June 1, 2022 (the “2018 collective agreement”). When the parties subsequently prepared the text of the 2018 collective agreement, they disagreed as to whether Article 39.4(6) continued to form part of the collective agreement. The Union’s position is that it does; the Employer’s position is that it does not. This decision determines that dispute. [2] The text of Article 39.4 of the 2014 collective agreement reads as follows: 39.4 WAGES - SCHEDULE “A1” FRONT LINE 39.4(1) A wage adjustment of 1.8%, effective June 2, 2014, (see Schedule “A1” Chart 1) will be paid on August 26, 2014. The retroactive portion of the wage adjustment will be paid, subject to all statutory deductions, on August 26, 2014. Pension contributions will be deducted on regular earnings. This adjustment applies to all employees who are on the GO Transit ATU payroll as of the date of ratification and any employees who have retired or been placed on the long term income plan since June 1, 2014. The retroactive adjustment represents all regular paid and overtime hours only from June 2, 2014, or the hire date for employees who commenced employment after that date. 39.4(2) Effective June 2, 2015, a wage adjustment of 1.8% will be applied to the wage rates of all job classifications covered under Schedule “A1” as reflected in Schedule “A1”, Chart 2. 39.4(3) Effective June 2, 2016, a wage adjustment of 2.3% will be applied to the wage rates of all job classifications covered under Schedule “A1” as reflected in Schedule “A1”, Chart 3. 39.4(3) Effective June 2, 2017, a wage adjustment of 2.3% will be applied to the wage rates of all job classifications covered under Schedule “A1” as reflected in Schedule “A1”, Chart 4. 39.4(5) Notwithstanding anything in Article 39.4, there will be no increase to the Training rate for any classification. 39.4(6) In addition to the above, a wage adjustment of $0.25 will be made to all Transit Safety Officer rates on December 1 of each year covered by the Collective Agreement. [3] The text of the 2018 Memorandum reads as follows: -3- MEMORANDUM OF SETTLEMENT Between: GO Transit (the "Employer") -and- Amalgamated Transit Union, Local 1587 (the "Union") Re: Renewal of Collective Agreement for June 2, 2018 to June 1, 2022 WHEREAS the Parties are governed by a Collective Agreement that is in place for the period of June 2, 2014 to June 1, 2018; and The Parties hereby agree to renew the Collective Agreement between them on the following terms: 1. The Parties agree that the Collective Agreement shall include the terms set out in the Collective Agreement which expires on June 1, 2018, incorporating the items agreed to in this memorandum of settlement together with those items attached as Schedules hereto. 2. The Collective Agreement shall be renewed for the period of June 2, 2018 to June 1, 2022. 3. All Letters of Agreement attached to the Collective Agreement shall be renewed for the period of June 2, 2018 to June 1, 2022. 4. Article 2.1 of the Collective Agreement shall be amended in accordance with Schedule B hereto. 5. Item ii of Article 5.8 of the Collective Agreement shall be amended as follows: ii) no more than six (6) eight (8) board members, excluding full time Union Officers, at any one time shall be permitted such leave. 6. For all bargaining unit classifications, hourly wages shall increase as follows: ■ June 2, 2018: 2% increase ■ June 2, 2019: 2% increase ■ June 2, 2020: 2.25% increase ■ June 2, 2021: 2.50% increase 7. During parental leave, and effective the date of approval by the Employment Insurance Commission, eligible employees shall receive a SUB top-up of 93%, less Employment Insurance (El) benefits, for 15 weeks. The corresponding language at Schedule A shall be added to the current article B14.07. 8. The Parties agree to the Letter of Agreement attached hereto regarding Station Attendants, and that the Letter of Agreement shall be attached to the Collective Agreement. 9. The Parties agree to the Letter of Agreement attached hereto regarding vacation credits and vacation entitlement dates while on Union leave, and that the Letter of Agreement shall be attached to the Collective Agreement. -4- 10. The Parties undertake [to] meet and jointly review the Collective Agreement for the purpose of discussing possible adjustments thereto, with a view to ensuring that the Collective Agreement is up to date, consistent with regulatory requirements, clear, and for other general housekeeping purposes throughout the period of June 2, 2018 to June 1, 2022. 11. The Parties undertake to meet and jointly review the Collective Agreement for the purpose of discussing possible operational matters within the collective agreement, throughout the period of June 2, 2018 to June 1, 2022, as is required. 12. This proposal shall expire on a date to be subject to the scheduling of discussion and to be determined by the Employer. 13. All of the undersigned representatives of the parties hereby agree to unanimously recommend the renewal Collective Agreement to their respective principals for ratification. [Strike out and emphasis in original.] [4] The Union’s position is that the language of the 2018 Memorandum is clear. It provides the 2018 collective agreement shall include the terms of the 2014 collective agreement, incorporating the items agreed to in the 2018 Memorandum together with those items attached as Schedules hereto. There is no reference to Article 39.4(6) in the 2018 Memorandum or its attached Schedules. Accordingly, Article 39.4(6) of the 2014 collective agreement is included in the 2018 collective agreement. [5] The Employer’s position is that consideration must be given not only to Article 39.4(6), but also to Article 39.4(5) which froze the Training rates for all classifications and was also introduced in the 2014 round of negotiations. Neither is expressly referenced in the 2018 Memorandum. Either the parties agreed to remove both Article 39.4(5) and (6) from the 2018 collective agreement or they agreed to leave them both in. Consideration of the collective agreement as a whole and of extrinsic evidence surrounding the negotiations compels the conclusion that both Article 39.4(5) and (6) were removed from the 2018 collective agreement. Paragraph 6 of the 2018 Memorandum, which sets out the rates for ATB wage increases over the course of the term of the 2018 collective agreement, was meant to be a complete replacement of all wage adjustment provisions in the 2014 agreement. In the result, both 39.4(5) and (6) are out. In the alternative, if the 2018 Memorandum did not serve to rescind 39.4(6), then it also did not serve to rescind 39.4(5). The Employer asserts the Union seeks to have 39.4(6) in but 39.4(5) out. This, the Employer argues, is logically inconsistent. Further, the Union’s interpretation therefore gives rise to an anomaly. In the result, the Employer’s interpretation should be preferred. -5- [6] The Union’s case in chief consisted of an Agreed Statement of Facts, which was essentially limited to establishing the fact of the Memorandum of Settlement giving rise to the 2014 collective agreement, the 2014 collective agreement, the 2018 Memorandum of Settlement, the grievance which is before me, a Letter of Agreement between the parties to sign, print, post and distribute on a without prejudice basis, the 2018 collective agreement without Articles 39.4(5) and (6), and the parties agreement that I have jurisdiction to hear this matter. The Union did not object to the introduction of extrinsic evidence by the Employer, without prejudice to its position that it is irrelevant and should not be considered for the purposes of the final decision. The Union also indicated that it anticipated it would call evidence in reply to rebut any factual inaccuracies in the Employer’s evidence. [7] The Employer called David Doherty and Nazia Rahim. Mr. Doherty is, and was at all material times, a Senior Employee/Labour Relations Consultant with the Employer. As such, he was part of the Employer’s 2014 bargaining team. He was absent and thus not part of the Employer’s 2018 bargaining team, but was involved in the preparation of the 2018 collective agreement. Ms. Rahim was a Labour Relations Consultant with the Employer from 2012 to 2018. She was not part of the Employer’s 2014 bargaining team but was part of its 2018 bargaining team. In reply, the Union called Christine Broeze, Sean Wilson and Larry Kinnear. Ms. Broeze was the President of the Local in 2018. Since that time, she has returned to her position as a bus driver with the Employer. She was not part of the Union’s 2014 bargaining team, but was part of its 2018 bargaining team. Mr. Wilson was at all material times a member of the Local’s Executive Board for the Transit Safety Unit. He was involved in the 2014 negotiations, but not the 2018 negotiations. Mr. Kinnear was an International Vice President of the Amalgamated Transit Union until his retirement in 2016. He participated in the 2014 negotiations, but not the 2018 negotiations. [8] While the evidence was heard over several days, there was ultimately no material dispute over most of the key facts. I set out those facts and restrict my review of the evidence to those areas relevant to disputes between the parties. The 2014 Negotiations [9] There is no dispute that each party was represented by a team during the negotiations. The 2014 collective agreement was resolved just prior to the strike deadline. The last issue to be resolved was money. The collective agreement contains a number of classifications, with three wage rates for each classification: “Start rate”, “Mid rate” and -6- “Full rate”. Ten of the classifications also have a fourth, lower “Training rate”. The parties had tentatively agreed that there would be no increases in the Training rates over the course of the new collective agreement. The Employer made a proposal for certain ATB percentage increases each year for the remaining rates. Mr. Kinnear entered the Employer room, gave an indication of what the Union would accept with respect to the ATB increases. He also said something like in addition he would need a dollar an hour increase for the TSO classification because it was being paid less than the market value for that job. The Employer caucused and subsequently presented a revised offer, including a $.25/hour annual wage increase for the TSOs in each of the four years of the collective agreement. The Union accepted this proposal. Articles 39.4(5) and (6) of the 2014 collective agreement were the result. [10] Mr. Doherty testified in chief that when Mr. Kinnear entered the Employer room he stated if the Employer wanted a deal it would take a four year deal with increases such that at the end of the deal a Metrolinx bus driver would be making the same as or more than a TTC bus driver. In addition he said he would need a dollar an hour increase for the TSO classification because it was paid less than the market value for the job. After Mr. Kinnear left, Mr. Doherty turned to Steve Weir, the member of the Employer’s negotiating team for transit safety, and asked him if he thought the TSOs were underpaid and if so was one dollar an hour a rough approximation. Mr. Weir responded that Mr. Kinnear was correct and that Metrolinx was underpaying its TSOs by about one dollar per hour. The Employer side then had a discussion about how it could meet that market problem while staying within its negotiating mandate. The proposal which the Employer ultimately made of stretching the adjustments to the TSO wage rates over four years and deferring the payment to December of each year, instead of having it coincide with the ATB increases in July, was the result of that discussion. [11] In cross-examination Mr. Doherty indicated that as close as he could recall the exact words used by Mr. Kinnear were “and I also want an extra dollar for TSOs because you are paying them way below market”. There was no discussion with Mr. Kinnear about how far below the market rate the TSOs were. He agreed that Mr. Kinnear’s ultimate goal was to obtain parity for the TSOs. When advised that the wage gap in 2014 between the Employer’s TSOs and their comparators was as much as $4.50 he stated he did not know what the gap had been but was not surprised. He also reiterated that the Employer had not done an analysis prior to the 2014 bargaining because it did not expect there would be negotiations on the rates for particular classifications. He stated the Employer simply gave Mr. Kinnear what he wanted and -7- did not analyze the matter further. He also stated that he was not sure the Employer accepted the principle that there was to be wage parity with the TTC on all of its classifications. At one point in cross-examination, Mr. Doherty used the term “one time dollar” to refer to Mr. Kinnear’s proposal. He was asked if he was suggesting that Mr. Kinnear used the words “one time”. He responded he was not, that the words used by Mr. Kinnear were that he needed a dollar for the TSOs because they were being underpaid. He testified, however, that in the Employer’s room that was understood to mean a one time increase. [12] Mr. Doherty was shown the Memorandum of Settlement concluded by the parties on June 2, 2014 with respect to the terms of the 2014 collective agreement. He confirmed that he had drafted the portions of the document dealing with wage increases. Those portions read: Wage increases as follows: June 2, 2014 1.8% June 2, 2015 1.8% June 2, 2016 2.3% June 2, 2017 2.3% The wage increases will not apply to the training rate of any classification. In addition to these increases there shall be an economic adjustment to the wage rates of Transit Safety Officers of $0.25 each December 1st for the duration of the agreement. [13] It was put to Mr. Doherty that nowhere in the 2014 Memorandum of Settlement did it indicate that the TSO annual increase was to be sun-setted or removed at the end of the term of the agreement. He responded that was what the words “for the duration of the agreement” meant. He agreed that to his knowledge there was no discussion with the Union of the meaning to be ascribed to those words. Mr. Doherty also confirmed that he drafted the language with respect to wage increases which was inserted into the 2014 collective agreement. The Union agreed to that language. There was no discussion about whether the TSO annual increase continued beyond the life of the 2014 collective agreement. [14] Ms. Rahim was the Employer’s other witness. She confirmed that she was not involved in the 2014 negotiations. [15] Mr. Wilson testified in chief for the Union that he was part of the 2014 negotiations but not the 2018 round of bargaining. At the time of the 2014 round of bargaining, the -8- TSO wage rate was approximately $5 per hour behind the hourly rate for the comparable position at the TTC and $3.20 behind the comparable position at York Region Transit. During the final day of negotiations, the President of the Union, Danny Harris, met one-on-one with the CEO of the Employer, Bruce McQuaig. [16] The substance of Mr. Wilson’s evidence as to what happened next was the subject of dispute between the parties. Counsel for the Employer asked to be advised of my notes of Mr. Wilson’s evidence in chief prior to making a decision about whether to cross-examine Mr. Wilson. My notes and that of each counsel all differed in some respects. The parties agreed that I would put my notes to Mr. Wilson and ask him if they were correct. I did so and Mr. Wilson confirmed that my notes of his evidence were correct. My notes indicate that Mr. Wilson testified that when Mr. Harris returned, he said if you have one thing you want, let me know. That is when I asked for the 80 cents over four years. Larry Kinnear went in [to the Employer’s room] and came back and that’s when we got the 25 cents. Upon being advised of this, counsel for the Employer indicated he had no cross- examination for Mr. Wilson. [17] Mr. Kinnear testified that from the “get go” Mr. Wilson had made it known that the TSOs were behind and he needed something for them. Mr. Kinnear could not recall how far behind the TSOs were from the comparable positions at the TTC or York Region, but guessed it was between $5.00 and $6.50. According to Mr. Kinnear, when he went into the Employer’s room he told them that he did not see the parties getting a deal unless the issue of the TSOs was addressed. He left it with the Employer to see how they would address it. He testified that when the Employer came back with $.25 per year for four years “that was a shock”, but that he told Mr. Wilson that it was going to be in the collective agreement “for ever and a day” unless the Employer bargained it out. Mr. Kinnear contrasted this with a Letter of Understanding, which would expire with the conclusion of the collective agreement, and asserted that the Employer was “famous” for attempting to put things into Letters of Understanding. Counsel for the Union then started asking a series of questions to which counsel for the Employer objected. Counsel for the Union stated that with respect to the agreement in the 2018 Memorandum to use the words “for the duration of the agreement” in reference to the TSO annual wage increase, he anticipated that Mr. Kinnear’s evidence would be that he told the Employer side that it had to be in the collective agreement and that Mark Gallina had agreed that it would be in the collective agreement. Counsel for the Employer objected to this line of questioning on the basis that if Mr. Kinnear’s alleged -9- statement was made while Mr. Doherty was in the room, then it should have been put to Mr. Doherty during cross-examination. [18] After considering the submissions of the parties and reviewing my notes of Mr. Doherty’s cross-examination, I allowed the objection. Counsel for the Union requested reasons for the ruling be included in the final decision. What follows are those reasons. [19] The gist of Mr. Doherty’s evidence in chief, and repeatedly reiterated in cross- examination, was that the only statement made by Mr. Kinnear during the 2014 negotiations of which he was aware was when Mr. Kinnear came into the Employer room and stated he needed a dollar per hour for the TSOs because the Employer was paying them way below market rate. The Employer offered to pay the TSOs an additional annual amount and the parties’ agreement was recorded in the 2014 Memorandum of Settlement as follows: “In addition to [the ATB] increases there shall be an economic adjustment to the wage rates of Transit Safety Officers of $0.25 each December 1st for the duration of the agreement.” Not only was it not put to Mr. Doherty that Mr. Kinnear at some point had made a statement in which he insisted that the words “for the duration of the collective agreement” meant that the increase be included in the collective agreement (as distinct from a Letter of Understanding), but it was put to Mr. Doherty in cross-examination that there had been no discussion with the Union about the meaning to be ascribed to the words “for the duration of the collective agreement”. Mr. Doherty agreed. Mr. Kinnear’s anticipated evidence is in direct conflict with that evidence. [20] More fundamentally, the Union’s case in chief consisted, in its entirety, of the Agreed Statement of Facts. The disputed evidence was offered by the Union in reply. While the Union may have been unable to anticipate the exact nature of the extrinsic evidence which would be offered by the Employer in response to the Union’s case in chief (notwithstanding it had requested and obtained particulars from the Employer in advance of the hearing), it had ample opportunity to make inquiries of Mr. Kinnear prior to concluding its cross-examination of Mr. Wilson (in particular given that the direct examination of Mr. Wilson took place on one day and the cross-examination took place over a week later). This would have given the Employer the opportunity to respond to any new factual allegations made by Mr. Kinnear in re-examination of Mr. Wilson or through other witnesses. To permit the Union to introduce these facts in reply would have denied the Employer the opportunity to respond. -10- [21] For the foregoing reasons, in my view the line of questioning was improper. The 2018 Negotiations [22] There was no dispute that, once again, each party was represented by a team during the negotiations. In the 2018 round of negotiations the Employer in essence sought a roll over of the 2014 agreement. The 2018 Memorandum which was concluded was a roll over of the 2014 agreement with a few specific changes, including a Letter of Agreement with respect to Station Attendants. There was no reference at all to the TSOs, let alone the annual TSO wage increase, or to the Training rates during the 2018 negotiations. The 2018 Memorandum took the form of an Employer proposal which had been drafted by Ms. Rahim and was accepted by the Union. The Letter of Agreement with respect to Station Attendants reads as follows: The Parties agree that in the event that the Station Attendant classification is amended, and/or a new classification is established which performs some or all of the duties performed by Station Attendants: 1. The terms and/or conditions applicable to the Station Attendant classification shall continue as much as practicable. 2. The wage rate applicable to any new, or evolved, classification performing some of [sic] all of the duties performed by Station Attendants, will not be less than the applicable rate of Station Attendants on the date the new, or evolved, classification is established. 3. The new, or evolved, classification will receive all applicable wage increases throughout the term of the Collective Agreement. 4. The parties will meet to negotiate changes in the Collective Agreement terms and/or conditions applicable to any new, or evolved, classification. In the event that any given matter cannot be resolved by agreement such matter may be submitted to interest arbitration. 5. The Parties shall agree to the terms and/or conditions applicable to any new, or evolved, classification prior to the implementation of said classification. [23] The 2018 Memorandum was signed on April 20, 2018. [24] Ms. Rahim’s evidence was that with the signing of the 2018 Memorandum, she thought Article 39.4(6) was being removed from the collective agreement. She testified that a week or two after the signing of the 2018 Memorandum she received a phone call from Ms. Broeze. Ms. Broeze indicated that Mr. Wilson had called her and asked if TSOs would be receiving their $.25 annual increase. Ms. Rahim responded ‘no’, that the parties had not indicated anything for the TSOs and that the deal was a percentage increase for all classifications. According to Ms. Rahim, Ms. Broeze responded: “Oh, they are going to be pissed.” Ms. Broeze asked Ms. Rahim if there was anything she could do and if she could speak to her boss. Ms. Rahim responded she would look -11- into it. Ms. Rahim spoke with her boss, Mr. Gallina, who responded that they had not negotiated anything extra for the TSOs. Ms. Rahim called Ms. Broeze back and relayed this message. Ms. Broeze said something like: “Oh fuck, they are not going to be happy”. That was the last Ms. Rahim heard about the TSOs before she left in August 2018 to accept a position with another employer. [25] In cross-examination it was put to Ms. Rahim that Ms. Broeze would deny making the statements attributed to her. Ms. Rahim maintained her evidence in chief that Ms. Broeze had made the statement. Ms. Rahim also confirmed that notwithstanding the statements she attributed to Ms. Broeze, there was no further communication from the Union on the TSO annual increase issue before she left in August, 2018, and more particularly no grievance filed by the Union on the issue. [26] Mr. Gallina was not called as a witness. [27] Mr. Doherty was not involved in the 2018 round of bargaining as he was away from Metrolinx at the time. In cross-examination he testified that upon his return to Metrolinx, he took over from Mr. Gallina in preparing a draft 2018 collective agreement which consolidated the 2018 Memorandum with the 2014 collective agreement. Mr. Gallina told him that the ATBs were meant to be the entire monetary package and neither the Training rate freeze nor the TSO annual increases continued to apply. Mr. Gallina told him that the issue of the TSO and Training rates was never discussed during the 2018 negotiations. Mr. Doherty also testified that to his understanding the first time the issue of the TSO annual increase was raised was in a December 24, 2018 email from Ms. Broeze. [28] Mr. Doherty also gave evidence in cross-examination with respect to a detailed email he received from Ms. Broeze in response to his draft of the 2018 collective agreement and their subsequent discussions. There is no material dispute between the evidence of Mr. Doherty and Ms. Broeze on this subject and I find it more useful to address it below under the evidence of Ms. Broeze as it figured prominently in her cross- examination. [29] Ms. Broeze’s evidence in chief was that when she signed the 2018 Memorandum her understanding was it would not have any impact on the TSO annual increase. The first she heard there was an issue about the TSO $.25 annual wage increase continuing was in December, 2018. The $.25 annual wage increase was to be made on December 1. Mr. Wilson contacted her after the pay cheques for TSOs following -12- December 1, 2018 did not reflect the increase. At that point, she reached out to Mr. Doherty who had returned to work with the Employer. They were unable to reach an agreement as to whether or not Article 39.4(6) remained in the collective agreement. Ultimately, the Union filed the grievance which, after a revision, is before me. In the course of her discussions with Mr. Doherty about the grievance, he took the position in a letter dated March 15, 2019 that the logic of the Union’s position dictated that Article 39.4(5) (the Training rate freeze) should also remain in the collective agreement. [30] In examination-in-chief, counsel advised Ms. Broeze that Ms. Rahim had given evidence that Ms. Broeze had placed a phone call to her and indicated that Mr. Wilson had asked Ms. Broeze about the $.25 for the TSOs and that Ms. Broeze was asking Ms. Rahim about it as a result. She was asked if she had any recollection of such a phone call. She testified that she did not. She testified she did not think it had taken place, stating that the $.25 annual increase for TSOs would not have been an issue at that point in time. [31] Ms. Broeze was cross-examined at some length. She testified that during the 2018 round of bargaining she understood that everything in the 2014 collective agreement was being rolled over, other than specific exceptions. There was no discussion of the Training rate freeze provision (Article 39.4(5)) during the 2018 negotiations and she believed that as a result it would remain in the 2018 collective agreement, with the result that the ATB wage increases specified in the 2018 Memorandum would not apply to the Training rates. [32] She agreed that when she received a draft of the 2018 collective agreement from Mr. Doherty, she had reviewed it very carefully. On December 24, 2018, she had sent Mr. Doherty an email in which she identified changes from the 2014 collective agreement which had not been specifically agreed to in the 2018 Memorandum. The email was made an exhibit. In it, Ms. Broeze stated the Union had not agreed to some of these amendments, including the deletion of Article 39.4(6), but also for example the fact that references to “maternity” had been changed to “pregnancy”. She also noted other “additional issues”, such as the fact that existing Letters of Agreement had not been included. Finally, she also identified “housekeeping matters” which needed to be addressed. These included: “Article 5.4(a): The "d" was deleted from Middlefield as was the comma between Middlefield and Wolfdale”. [33] It was put to Ms. Broeze in cross-examination that in her email to Mr. Doherty, notwithstanding the fact that she had identified every other minute change, she had not -13- identified the fact that Article 39.4(5), the Training rate freeze, had been deleted from the draft agreement. She was asked for an explanation and was unable to provide one, indicating she did not know off the top of her head and did not have her notes. [34] On February 21, 2019, the grievance before me was filed. On March 15, 2019, Mr. Doherty sent Ms. Broeze a letter in which he stated in part: As for your argument that the deletion of Article 39.4(6) is not expressly contained in the 2018-2022 Memorandum of Settlement, and is consequently deemed by the Memorandum to be continued, it is our position that the parties agreed to the across-the-board adjustments outlined in Article 6 of the Memorandum as a complete replacement for all of the wage provisions contained in Article 39 of the prior Collective Agreement, including Article 39.4(6). Consistent with this interpretation is the deletion of Article 39.4(5) in all prior drafts -to which you have not taken issue -and the application of the across-the-board increases to the Training rates. If one were to follow your argument the deletion of the exemption of these rates from the across-the-board increases would continue. In re-examination, Ms. Broeze stated that she had not thought about the Training rates at all during the 2018 negotiations and the first time she turned her mind to them was after she received Mr. Doherty’s March 15, 2019 letter. [35] Mr. Wilson testified in chief that the first time he learned that the TSOs were no longer getting the $.25 / hour annual increase was when he received his December, 2018 pay stub. He then advised Ms. Broeze to start the grievance process. [36] As noted above, Mr. Wilson was not cross-examined. [37] Mr. Kinnear was not involved in the 2018 negotiations or aftermath. [38] There is no dispute the parties ultimately entered into a Letter of Agreement whereby they agreed to sign, print, post and distribute the 2018 collective agreement without Articles 39.4(5) and (6), without waiver of their positions regarding the inclusion of Articles 39.4(5) or (6). The letter was signed on behalf of the Union on April 27, 2020 and on behalf of the Employer on May 5, 2020. The text of that Letter of Agreement is as follows: Whereas: the parties entered into a Memorandum of Settlement dated April 20, 2018 wherein they agreed on an extension of the 2014-18 Collective Agreement between them, with some modifications as described therein; and Whereas: the parties have agreed upon the final text of the 2018-22 Collective Agreement resulting from said Memorandum of Settlement, with the exception of an issue over the inclusion or otherwise of Articles 39.4(5) and (6) of the 2014- 2018 agreement; and -14- Whereas: the parties wish to have the agreed upon text of the 2018-22 agreement available for posting and distribution; The Parties Agree as Follows: 1. The parties agree to sign the 2018-22 Collective Agreement without Articles 39.4(5) and (6) included; 2. The Parties agree to the posting, printing and distribution of the 2018-22 Collective Agreement so signed; 3. The Parties agree that the signing of the 2018-22 Collective Agreement in accordance with this Letter of Agreement, does not constitute a waiver of the parties' positions regarding the inclusion of Articles 39.4(5) or (6), nor does it constitute a waiver of their rights to have that claim determined through the arbitration process; 4. The Parties further agree that the signing of the 2018-22 Collective Agreement does not represent an agreement to any changes contained therein, if any, which were not agreed to in the Memorandum of Settlement dated April 20, 2018, or expressly agreed to by the parties thereafter. Argument for the Union [39] The Union argues the evidence establishes that TSOs employed by the Employer are paid significantly less than employees in comparable positions at other major transit properties in Ontario. This was a bargaining issue in 2014. Article 39.4(6) was the result. Articles 39.4(1) - (4) of the 2014 collective agreement provide for ATB increases on June 2 of each year. Article 39.4(6) provides: In addition to the above, a wage adjustment of $0.25 will be made to all Transit Safety Officer rates on December 1 of each year covered by the Collective Agreement. The Union argues that this language clearly establishes that the TSO annual wage adjustment is separate from the ATBs. First, Article 39.4(6) expressly states that the $0.25 annual wage adjustment for TSOs is “in addition to the above”, i.e. in addition to the ATB increases. Second, while the ATBs are payable on June 2 of each year, the TSO annual wage adjustment is payable on December 1 of each year. [40] The evidence of Mr. Doherty and Mr. Kinnear shows that there was no meeting of the minds of the parties in 2014 with respect to the time period over which the TSO annual wage adjustment was to be paid. As of 2018, there continued to be a wage gap between the Employer’s TSOs and those in comparable positions at other major transit properties. Negotiations of the 2018 collective agreement commenced in January, -15- 2018. The Employer was seeking in essence a roll over agreement subject to amendments with respect to certain issues. There was no reference by either party during negotiations to Article 39.4(6) or to TSOs at all. It appears the Union representatives thought the TSO wage adjustment continued while the Employer representatives thought it would come to an end. Ms. Rahim, on behalf of the Employer drafted the 2018 Memorandum ultimately signed by the parties. It provides the 2018 collective agreement shall include the terms of the 2014 collective agreement, incorporating the items agreed to in the 2018 Memorandum together with those items attached as Schedules hereto. There is no reference to Article 39.4(6) in the 2018 Memorandum or its attached Schedules. Accordingly, Article 39.4(6) of the 2014 collective agreement is included in the 2018 collective agreement [41] The Union advances five propositions. First, the extrinsic evidence does not disclose a meeting of the minds, therefore the words used by the parties in their 2018 Memorandum must govern: Canadian Union of Public Employees, Local 966 v. Peel (Regional Municipality) (Lump Sum Payment Grievance), (2013) 240 L.A.C.(4th) 306 (Cummings); West Parry Sound Center v. Ontario Public Service Employees Union (Wage Rate Grievance), [2002] O.L.A.A. No. 626 (Keller). [42] Second, the clear words of the 2014 collective agreement and the 2018 Memorandum establish that the TSO annual wage increase continues to exist in the 2018 collective agreement. This is consistent with the fact that the Employer was seeking to roll over the 2014 collective agreement with specific exceptions. The Union understood this to mean the status quo was preserved unless the parties agreed otherwise. Paragraph 6 of the 2018 Memorandum was designed to replace the annual ATBs contained in Article 39.4(1) to (4) of the 2014 collective agreement. The TSO annual wage increase serves a different purpose than the ATBs: to establish wage parity with comparable positions at other major transit properties. Further, it is payable at a different time of year than the ATBs. Accordingly, it cannot be lumped in with the ATBs. [43] Third, the TSO annual wage increase is an established benefit and as such could only be removed by clear and emphatic language: National Capital Region YMCA-YWCA v. Canadian Union of Public Employees, Local 2204 (Policy), [2013] O.L.A.A. No. 193 (Baxter); Labourers’ International Union of North America, Ontario Provincial District Council v. Hydro One Inc. (Foreman Rate Reduction), 2011 CanLII 60251 (ON LRB) (Slaughter). Where the Union and the Employer intended to limit a benefit to the duration of the term of their collective agreement, they have done so with clear -16- language absent here. Here, by contrast, the purpose of the benefit, to establish wage parity, has not been spent. [44] Fourth, since the Employer drafted the 2018 Memorandum, the contra proferentem rule applies and any ambiguity should be resolved in favour of the Union: Medis Health & Pharmaceutical Services Ltd. v. Teamsters, Chemical and Allied Workers, Local 424, (2000), 93 L.A.C. (4th) 118 (Armstrong); and Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Robbescheuten Grievance), [2015] O.G.S.B.A. No. 74 (Kirkwood). [45] Fifth, in anticipation of the Employer raising the Training rate freeze established by Article 39.4(5), the Union argues the Training rate freeze is not part of the grievance and therefore I have no jurisdiction over issues with respect to the Training rate freeze: York Region District School Board v. Ontario Secondary School Teachers’ Federation, District 16, (2005), 145 L.A.C. (4th) 105 (Knopf). In any event, the TSO annual wage increase and the Training rate freeze are separate provisions. One does not impact the other. There is no evidence the Union was aware of the Employer’s position with respect to the Training rate freeze until after it filed the grievance. Accordingly, it is irrelevant. Argument for the Employer [46] The Employer argues the question of whether Article 39.4(6) is continued in the 2018 collective agreement is inextricably tied to the question of whether Article 39.4(5) is continued. Whether the TSOs are paid less than employees in comparable positions at other employers is irrelevant. The evidence does not establish a shared intent to bring the TSOs wage rate up to the same level as rates paid by other employers in 2014 and there was no discussion at all in 2018. [47] The Employer argues paragraph 6 of the 2018 Memorandum applies the ATB to “all classifications”. It does not carve out the TSOs for special treatment. Nor does it carve out the Training rates. It is impossible to have both an ATB increase for all rates and an end to the freeze of the Training rates. Either both are out or both stay in. [48] The Employer notes that Article 39.4(1) of the 2014 collective agreement contained language with respect to the retroactive portion of the payment of the ATB increase which came into effect on June 2, 2014. Nothing in the 2018 Memorandum provided for the removal of that language. There was no need to do so because the parties just -17- knew that language would come out. On the other hand, where the parties intended to carve out the wage increases for a particular group of employees from the general ATB provisions, they did so, as illustrated by what they did with respect to station attendants. Contrary to the argument of the Union, the problem with respect to the TSO annual wage increase is not that there is nothing in the 2018 Memorandum which takes it out of the 2018 collective agreement, but rather that there is nothing which keeps it in the 2018 collective agreement. [49] The Employer rejects the Union’s characterization of the removal of the TSO annual wage increase as a “take away”. There was no reduction in the wage rates for TSOs, and thus no take away. On the contrary, like other employees, the TSOs received an ATB increase in their wages in each of the four years of the 2018 collective agreement. [50] In the alternative, the Employer relies upon the evidence of the context within which the collective agreements were negotiated. The Employer argues the evidence shows there was no shared understanding during the 2014 negotiations with respect to the purpose of the TSO annual wage increase. The Union representatives thought it would be ongoing to close a gap; the Employer representatives thought it was a “one time dollar”. [51] In the 2018 negotiations, the Employer sought in essence a roll over collective agreement, and the Union did not disagree. There was no discussion about the TSO annual wage increase or the freeze on Training rates. Ms. Rahim testified she thought the freeze on the Training rates and the TSO annual increase would be deleted. Ms. Broeze testified she thought that the TSO annual increase would continue. [52] The Employer notes the conflicting evidence as to what happened next. Ms. Rahim testified that a week or two later Ms. Broeze called asking her if the TSO annual increase continued and expressed dismay when told it was not. Ms. Broeze did not recall the conversations. This takes place before a draft of the 2018 collective agreement is created. The Employer argues I will need to make a finding of fact because if the conversations took place as described by Ms. Rahim it shows that Union did not think about the inclusion of the TSO annual increase during the 2018 negotiations. The Employer argues Ms. Rahim’s evidence should be preferred. [53] The Employer notes that Mr. Doherty then prepared a draft of the 2018 collective agreement. He removed both the Training rate freeze provision and the TSO annual increase provision which had been in the 2014 collective agreement. The wage -18- schedules attached to the draft 2018 collective agreement reflect both of these changes. [54] The Union reviewed Mr. Doherty’s draft of the 2018 collective agreement and Ms. Broeze sent the Employer a detailed list of changes from the 2014 collective agreement to which the parties had not agreed. Every minute alteration was listed. However, while Ms. Broeze noted that 39.4(6), the TSO annual increase provision, had been deleted, she did not note that 39.4(5), the Training rate freeze provision, had not been deleted as well, nor did she note the 40 corresponding increases to Training rates contained in the wage schedules. The only conclusion that can be reached is that Ms. Broeze thought the Training rate freeze provision had been deleted, and indeed that was her evidence. The Union’s position that the TSO annual increase provision was not deleted is inconsistent with their position on the Training rate wage freeze provision. This logical inconsistency was put to Ms. Broeze in Mr. Doherty’s letter of March 15, 2019. The Training rate freeze and the TSO annual increase are tied together and I must decide whether they are both in or both out. [55] There is no utility to parsing various other articles of the collective agreement which contain language limiting their duration since there is no evidence that the parties turned their minds to them during the 2018 negotiations. As between Article 39.4(5) and 39.4(6), if anything the latter was limited to the term of the 2014 collective agreement while the former was not. This is because 39.4(6) ends with the words “covered by the collective agreement” while 39.4(5) contains no similar words. [56] In the result, paragraph 6 of the 2018 Memorandum, which provides for ATB increases “for all bargaining unit classifications” should be read as recording the parties agreement that those were the only changes to be made to hourly wage rates over the course of the 2018 collective agreement. Both the Training rate freeze in Article 39.4(5) and the TSO annual increase in Article 39.4(6) contained in the 2014 collective agreement were thereby removed. [57] The Employer notes Ms. Broeze’s view that provisions of the 2014 collective agreement not expressly amended by the 2018 Memorandum were continued unchanged in the 2018 collective agreement. In cross-examination, Ms. Broeze agreed this meant that Article 39.4(5), providing for a freeze on Training rates, remained in the 2018 collective agreement. The Employer argues that the Union’s position before me is therefore logically inconsistent. If Article 39.4(5) remains in the collective agreement, so does Article 39.4(6). The fact that other provisions of the -19- collective agreement contain express language limiting their term is of no assistance in interpreting Article 39.4(6) as the treatment of the term limits across different provisions of the collective agreement is inconsistent and there is no evidence that the parties turned their mind to that issue. [58] The Employer makes reference to a number of authorities. For the proposition that when the issue is one of the proper interpretation of a collective agreement, onus does not play a role: Dufferin-Peel Catholic District School Board v. CUPE, Local 2026 (Policy Grievance 2026-11-10), unreported, February 23, 2017, Brian Sheehan. For the proposition that if extrinsic evidence does not disclose a meeting of the minds, the words used by the parties in their agreement must govern, the Employer relies(as did the Union) upon Canadian Union of Public Employees, Local 966 v. Peel (Regional Municipality) (Lump Sum Payment Grievance), op. cit.. For the proposition that “when faced with a choice between two linguistically permissible interpretations, arbitrators have been guided by the purpose of the particular provision, the reasonableness of each possible interpretation, administrative feasibility, and whether one of the possible interpretations would give rise to anomalies”: Brown & Beatty, 4:2100. With respect to the proper interpretation of an agreement to provide an across the board increase: SEIU, Local 210 v. Central Park Lodges (c.o.b. Versa-Care Windsor Place) (1% Pay Grievance), (2001) 95 LAC (4th) 222 (Etherington) and Dare Foods Ltd. v. Bakery, Confectionery, Tobacco Workers and Grain Millers International Union Local 264 (Wages Grievance), (2017) O.L.A.A. No. 383, 287 L.A.C. (4th) 52 (Levinson). For the proposition that contextual evidence is always relevant for the interpretation of a collective agreement: Dumbrell v. The Regional Group of Companies Inc., (2007), 85 O.R. (3d) 616 (Ont. C.A.); Air Canada Pilots Association v. Air Canada (Interpretation of Letter of Commitment 50), unreported, March 1, 2012, Kevin Burkett; Sattva Capital v. Creston Molly, 2014 SCC 53 (CanLII); Unifor Local 87-M v. Waterloo Region Record (Grievance re Telesales Commissions), unreported, October 14, 2014, James Hayes; ATU Local 1767 v. Sault Ste. Marie (Grievance dated November 8, 20123 (OMERS)), unreported, December 3, 2014, James Hayes; LIUNA, Local 183 v. Halton Recycling Ltd. d.b.a Emterra Environmental (Policy Grievance dated March 6, 2018), unreported, February 15, 2019, Sheri Price; and Unifor Local 593 v. Petro Canada Lubricants Inc., June 26, 2019, George Surdykowski. Union in Reply [59] The Union states there is little dispute as to the applicable principles of law. In particular, the Union does not dispute that evidence of context is relevant, but notes -20- that it is the context at the time the agreement was negotiated. The agreement of the parties at issue in this case was concluded with the signing of the 2018 Memorandum. (The Employer disagrees.) The discussions between the parties subsequent to the signing of that 2018 Memorandum, around the preparation of the 2018 collective agreement, do not form part of that context and thus are irrelevant. In the alternative, with respect to Ms. Rahim’s evidence of the conversations between herself and Ms. Broeze, Ms. Broeze might have called Ms. Rahim simply because Mr. Wilson had asked her the question. In any event, even if the Union did not think about the inclusion of the TSO annual increases during the 2018 negotiation, this does not establish a shared intention that they were to be removed. Analysis and Decision [60] It is convenient to set out again the portions of the 2018 Memorandum referenced by the parties in their arguments: WHEREAS the Parties are governed by a Collective Agreement that is in place for the period of June 2, 2014 to June 1, 2018; and The Parties hereby agree to renew the Collective Agreement between them on the following terms: 1. The Parties agree that the Collective Agreement shall include the terms set out in the Collective Agreement which expires on June 1, 2018, incorporating the items agreed to in this memorandum of settlement together with those items attached as Schedules hereto. …. 6. For all bargaining unit classifications, hourly wages shall increase as follows: ■ June 2, 2018: 2% increase ■ June 2, 2019: 2% increase ■ June 2, 2020: 2.25% increase ■ June 2, 2021: 2.50% increase …. 8. The Parties agree to the Letter of Agreement attached hereto regarding Station Attendants, and that the Letter of Agreement shall be attached to the Collective Agreement. …. [61] I note at the outset that both parties assert the language clearly supports their position: neither party argues ambiguity. Nor does either party assert estoppel. -21- [62] There is no express reference in the 2018 Memorandum to the TSO annual wage increase or Article 39.4(6). The Employer, however, argues paragraph 6 of the 2018 Memorandum, which provides for ATB increases “for all bargaining unit classifications” should be read as recording the parties’ agreement that those were the only changes to be made to hourly wage rates over the course of the 2018 collective agreement. Both the Training rate freeze in Article 39.4(5) and the TSO annual increase in Article 39.4(6) contained in the 2014 collective agreement were thereby removed. It seeks to rely on extrinsic evidence for this purpose. In particular, it seeks to rely on Ms. Rahim’s evidence of statements made by Ms. Broeze a week or two after the 2018 Memorandum was concluded. That evidence is disputed. [63] In Sattva, the Supreme Court of Canada held the words of a written agreement must be understood in context and thus extrinsic evidence of context was admissible. The agreement of the parties, however, is expressed in the words they use: context is not a substitute for them. The Court stated: (b) The Role and Nature of the “Surrounding Circumstances” …. [57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement .… The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract .… While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement .… [58] The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract …, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” .… Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. (c) Considering the Surrounding Circumstances Does Not Offend the Parol Evidence Rule [59] It is necessary to say a word about consideration of the surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing .… To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties .… The purpose of -22- the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract .… [60] The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise. [61] Some authorities and commentators suggest that the parol evidence rule is an anachronism, or, at the very least, of limited application in view of the myriad of exceptions to it .… For the purposes of this appeal, it is sufficient to say that the parol evidence rule does not apply to preclude evidence of surrounding circumstances when interpreting the words of a written contract. [Citations omitted.] [64] As noted in Sattva, the parol evidence rule would preclude extrinsic evidence of the subjective intentions of the parties. While Sattva notes the parol evidence rule has been subject to criticism from many quarters, it decides only that it does not preclude evidence of surrounding circumstances. Put differently, arguably Sattva does not decide whether evidence of the subjective intentions of the parties continues to be irrelevant and inadmissible. [65] Other decisions relied upon by the Employer, however, suggest that evidence of the subjective intentions of the parties is irrelevant and inadmissible. Dumbrell (which pre- dates Sattva) states so expressly: see paras. 49 and 50. In Air Canada (which also predates Sattva), Arbitrator Burkett noted the court had reached this conclusion in Dumbrell: see p. 28. In Waterloo Record, after reviewing Dumbrell, Air Canada and Sattva, Arbitrator Hayes stated at para. 34: Sattva and Dumbrell also provide guidance as to when contextual evidence should be admitted. Both judgments make it clear that a decision-maker should exercise restraint. The inquiry should not be directed at what the subjective intentions of the parties may now be said to have been. It means that the words used by the parties to express their intention should retain presumptive prominence but context should not be ignored. [66] In a labour relations context, the concern about the admissibility of extrinsic evidence of intentions also finds expression in other ways. In Air Canada, at p. 33, Arbitrator Burkett found that a contextual approach gave rise to an onus on a party seeking a concession to put the other party on notice of the meaning of its proposal. Arbitrator Hayes adopted this reasoning at para. 40 of Waterloo Record. -23- [67] The Employer argues removal of the annual wage increase for the TSOs did not amount to a concession by the Union because the TSOs still received the ATB increase under the 2018 collective agreement. I disagree. Whether or not something amounts to a concession for these purposes must itself be approached contextually. Under the 2014 collective agreement the TSOs received the ATB and in addition the annual wage increase. On the Employer’s interpretation the TSOs lose this additional benefit under the 2018 collective agreement. Objectively, the TSOs would be worse off. That is a concession for present purposes. [68] A threshold issue is whether the statements allegedly made by Ms. Broeze a week or two after the 2018 Memorandum are evidence of the context within which the parties reached their agreement. I agree with the Union that in this instance the contract was concluded with the signing of the 2018 Memorandum on April 20, 2018. If the parties had been unable to agree on the terms of the collective agreement arising from the 2018 Memorandum, the 2018 Memorandum itself (which adopts parts of the 2014 collective agreement by reference) would have been enforceable as the collective agreement between them. In this instance, the parties entered into a Letter of Agreement permitting them to sign, print, post and distribute a 2018 collective agreement excluding both Articles 39.4(5) and (6), without waiver of their respective positions on the inclusion of Articles 39.4(5) or (6). That Letter of Agreement expressly states: 4. The Parties further agree that the signing of the 2018-22 Collective Agreement does not represent an agreement to any changes contained therein, if any, which were not agreed to in the Memorandum of Settlement dated April 20, 2018, or expressly agreed to by the parties thereafter. There is no question, therefore, that the 2018 Memorandum constitutes the contract and April 20, 2018 constitutes the date on which that contract was concluded for the purposes of determining what constitutes relevant contextual evidence in relation to the inclusion or exclusion of Articles 39.4(5) or (6). [69] The Union argues that it follows that anything which occurred after April 20, 2018 cannot constitute relevant contextual evidence. I note the Supreme Court of Canada has held that in arbitration of a dismissal grievance subsequent-event evidence is admissible if it sheds light on “the reasonableness and appropriateness of the dismissal under review at the time that it was implemented”: Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 SCR 1095 at para. 13. Indeed, subsequently the Supreme Court of Canada held that it would be “serious error” not to consider such evidence: Toronto (City) Board of Education v. O.S.S.T.F., District 15, -24- [1997] 1 S.C.R. 487 at para. 74. I assume without deciding that a similar principle applies here: objective subsequent-event evidence is admissible if it sheds light on the context within which the agreement reached. [70] Ms. Rahim’s evidence as to the statements made by Ms. Broeze was as follows. Ms. Broeze called Ms. Rahim and indicated that Mr. Wilson had called her and asked if TSOs would be receiving their $.25 annual increase. Ms. Rahim responded ‘no’, that the parties had not indicated anything for the TSOs and that the deal was a percentage increase for all classifications. Ms. Broeze responded: “Oh, they are going to be pissed.” Ms. Broeze asked Ms. Rahim if there was anything she could do and if she could speak to her boss. Ms. Rahim responded she would look into it. Ms. Rahim spoke with her boss, Mr. Gallina, who responded that they had not negotiated anything extra for the TSOs. Ms. Rahim called Ms. Broeze back and relayed this message. Ms. Broeze said something like: “Oh fuck, they are not going to be happy”. [71] The Employer’s argument is that if Ms. Broeze made the statements, then I should infer the Union did not think about the inclusion of the TSO annual increases during the 2018 negotiations. The Employer argues that I must make a finding of fact as to whether or not Ms. Broeze made the statements in question. [72] I do not find it necessary to make this finding. Assuming, without deciding, that Ms. Broeze made the statements in question I do not find them to be of assistance in interpreting the 2018 Memorandum. Accepting the Employer’s argument, the statements indicate that when Mr. Wilson asked Ms. Broeze if the TSO annual wage increases remained in the collective agreement, she did not know and therefore called Ms. Rahim. Attempting to infer from this Ms. Broeze’s state of mind a week or two earlier when the 2018 Memorandum was signed is challenging at best. To be probative, any such inference must not only be reasonable but more probable than not. Leaving aside whether it meets that standard of proof, the most reasonable inference would be that Ms. Broeze simply had not turned her mind to the impact, if any, of the 2018 Memorandum on the TSO annual wage increases at the time the 2018 Memorandum was negotiated and signed. Indeed, that is what the Employer argued. Any other inference is entirely speculative. Even if one were to speculate that Ms. Broeze understood and intended that the 2018 Memorandum would remove the TSO annual wage increase, that would be evidence of subjective intention considered inadmissible by Dumbrell and Air Canada and cautioned against by Sattva and Waterloo Record. The failure of the Employer to put the Union on notice that its intention was that the ATB increase language would remove the TSO annual wage -25- increases is another factor which weighs heavily against giving any weight to Ms. Broeze’s statements as extrinsic evidence of context at the time the 2018 Memorandum was concluded. Ms. Broeze was only one member of the Union negotiating committee. Even if Ms. Broeze understood the Employer’s proposal would result in the removal of the TSO annual increase, there is no objective evidence that understanding was shared by other members of the Union negotiating committee. [73] In the result, I do not find the extrinsic evidence of context to be of assistance with respect to the issue before me. In all likelihood, the parties were “two ships passing in the night”, to use Arbitrator Keller’s phrase in West Parry Sound Center, with different understandings of whether or not Article 39.4(6) remained in the collective agreement. In any event, I turn to the language which the parties used. [74] The 2018 Memorandum provides that the 2018 collective agreement shall include the terms set out in the 2014 collective agreement, incorporating the terms of the 2018 Memorandum and Schedules attached thereto. There is nothing in the 2018 Memorandum which expressly removes the TSO annual wage increase provided for in Article 39.4(6). It remains in the 2018 collective agreement unless implicitly removed by some other provision in the 2018 Memorandum. [75] The Employer notes that in paragraph 6 of the 2018 Memorandum, the parties agreed to ATB wage increases. It argues that an ‘across the board increase’ is a term of art in collective bargaining. The Employer relies upon paragraphs 45, 46, 48 and 50 of Central Park Lodge. In my view, the decision does not support the Employer’s argument. In that case the agreement provided for an “across the board increase” of 1%. The dispute between the parties was whether that increase applied to the rates set out in the expired collective agreement or to the rates which had actually been paid to the employees, which were higher. The factual context was that the payment of the higher rates, although the result of a mistake, was longstanding and known to the employer and further that a pay equity adjustment made after the previous collective agreement had expired had been added to those rates. Arbitrator Etherington concluded the ATB increase applied to the higher rates which had actually been paid to the employees. He stated (at para. 46): Note that in making this finding I am not relying on evidence of negotiation history to discern the parties' intent I am simply trying to discern the plain meaning of the language in the factual context faced by the parties at the time of the agreement. At para. 50 of the decision, Arbitrator Etherington rejected the argument that a decision of Arbitrator Springate stood for the proposition that “across the board” is a term of art. -26- Rather, Arbitrator Etherington stated the main point of Arbitrator Springate’s decision was that “the meaning of across the board was to be determined by looking at the particular agreement as a whole and the bargaining history and context.” In any event, there is no suggestion in Central Park Lodge that an agreement to provide for an ATB increase to wage rates in and of itself served to remove any other provisions adjusting or affecting some of those wage rates in a collective agreement. The issue simply did not arise in that case. [76] The Employer also relies upon Dare Foods Ltd. on the significance of the parties’ agreement to an ATB increase. Once again, I do not find the case to be of assistance. The issue in that case was whether an agreement to “increase all wages across the board” applied only to the “Permanent Rates” set out in a wage schedule or whether they also applied to the “starting rate” for all employees in the wage schedule and to an intermediate rate payable to a group of employees referred to by Arbitrator Levinson as the “Non-Permanent Rate Employees”: see para. 2. Arbitrator Levinson concluded that the increase applied to all of the rates. There is no suggestion in the decision that an agreement to “increase all wages across the board” had the effect of deleting any other wage related provision in the expired collective agreement. Once again, the issue simply does not arise in the case. [77] The Employer notes that paragraph 6 of the 2018 Memorandum applies the ATB to “all classifications”. The Employer argues the 2018 Memorandum does not carve out the TSOs for special treatment. On the other hand, where the parties intended to carve out the wage increases for a particular group of employees from the general ATB provisions, they did so, as illustrated by what they did with respect to station attendants. The Employer argues the problem with respect to the TSO annual wage increase is not that there is nothing in the 2018 Memorandum which takes it out of the 2018 collective agreement, but rather that there is nothing which keeps it in the 2018 collective agreement. [78] I am not persuaded by this argument. The 2014 collective agreement also provided for ATBs in Articles 39.4(1) - (4). Article 39.4(6) of the 2014 collective agreement carved out the TSOs for special treatment. It stated: In addition to the above, a wage adjustment of $0.25 will be made to all Transit Safety Officer rates on December 1 of each year covered by the Collective Agreement. [Emphasis supplied.] -27- Paragraph 6 of the 2018 Memorandum is a direct substitute for Articles 39.4(1) - (4) of the 2014 collective agreement. There was no need to carve out the TSOs for special treatment if Article 39.4(6) is not removed by the 2018 Memorandum because Article 39.4(6) on its face provides for that special treatment. By contrast, there was nothing in the 2014 collective agreement which addressed the “wage rate applicable to any, new or evolved classification performing some or all of the duties performed by Station Attendants”. The addition of language in the 2018 Memorandum was necessary in order to give effect to the parties’ agreement to “carve out” the wage rates of Station Attendants for special treatment. [79] The Union argues the TSO annual wage increase serves a different purpose than the ATBs: to establish wage parity with comparable positions at other major transit properties. There is no dispute that Article 39.4(6) was inserted into the 2014 collective agreement to address a wage gap between the TSO rate and the rate being paid to comparable positions at TTC and York Region. The Employer, however, disputes the evidence before me demonstrates a shared understanding that a wage gap continued to exist in 2018. I do not find it necessary to decide that issue. A provision to pay one group of employees an annual wage increase “in addition” to ATB increases at a certain time of the year on its face serves a different purpose than a provision to pay the ATB increases to all employees at a different time of year. [80] For all of the foregoing reasons, I find Article 39.4(6) remains part of the 2018 collective agreement. [81] I note the Employer makes a series of arguments predicated on the proposition that the Union is asserting that the 2018 Memorandum did not remove Article 39.4(6), which provides for the TSO annual wage increase while also asserting that the 2018 Memorandum did remove Article 39.4(5), which provides for a freeze of the Training rates. The Employer argues these two assertions are logically inconsistent. In response, the Union emphasizes that it makes no assertion before me with respect to whether or not 39.4(5) remains in the collective agreement and that the grievance is only with respect to Article 39.4(6). [82] I agree with the Union that the grievance encompasses only Article 39.4(6). The Employer was the one which raised Article 39.4(5) within the context of the grievance process. Whether my reasons for concluding that the 2018 Memorandum did not remove Article 39.4(6) logically compel the conclusion that Article 39.4(5) was also not removed may be an issue for another day, but is not an issue before me. -28- Conclusion [83] For all of the foregoing reasons, the grievance is allowed and I declare that Article 39.4(6) of the 2014 collective agreement forms part of the 2018 collective agreement. As requested by the parties, I remain seized should they be unable to agree on any amounts owing as a result. Dated at Toronto, Ontario this 6th day of May, 2021. “Ian Anderson” _____________________ Ian Anderson, Arbitrator