HomeMy WebLinkAboutWaind et al 21-06-07IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act
BETWEEN:
CONESTOGA COLLEGE
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 237
(“Union”)
(Grievances of Waind and Losier - Admissibility)
_______________________________________________________________
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the College:
Kathryn Meehan, Hicks Morley Hamilton Stewart Storie LLP
Dean Bulloch, AVP, Human Resources
Carolyn Galvin, Director, Employee & Labour Relations
Chris Buuck, Retired AVP, Academic Administration & International Education
Shawn Brake, Executive Dean, School of Interdisciplinary Studies and the Language
Laura Stoutenberg, Associate Chair LINC
Debra Marshall, Retired Executive Director LINC
On Behalf of the Union:
Melanie Anderson, Goldblatt Partners LLP
Maureen Murphy-Fricker, President
Lana-Lee Hardacre, Former President
Annette Losier, Grievor
Sonia Waind, Grievor
Hearing held via videoconference on May 21, 2021
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ISSUE
[1] I have been appointed to determine two individual grievances alleging the individuals have been
inappropriately classified as instructors, rather than professors, in breach of the collective
agreement.
[2] The College has raised a preliminary issue, submitting the grievances are inarbitrable. The
College’s position is based on three arguments: timeliness and laches flowing from delay in the
filing of the grievances; promissory estoppel; and issue estoppel. In support of its position on this
preliminary issue, the College relies on a Memorandum of Agreement (“MOA”) executed in
settlement of another grievance filed by the Union in 2010.
[3] The parties agreed that the College’s preliminary issue would be determined before the merits of
the grievances were addressed. To expedite the proceeding, the parties agreed to file will-say
statements of their witnesses. Upon review of the will-say statements of the College’s two
witnesses, the Union raised an objection to certain evidence the College has indicated it intends
to call. Specifically, the Union challenges the admissibility of evidence of communications
between the parties during the grievance process with respect to the 2010 grievance and
communications between the parties in the course of negotiating the MOA.
[4] I have had an opportunity to review the will-say statements of both the College’s witnesses and
hear the viva voce evidence of one College witness, Ms. Buuck. The parties have requested that
this objection be determined prior to the preliminary issue being addressed, as it will impact the
evidence the Union may call in response.
FACTS
[5] For the purposes of the preliminary issue, and the Union’s objection, the parties provided me with
the following Agreed Statement of Facts:
A. The parties and the grievances
1. This proceeding concerns two grievances that OPSEU has filed on behalf of two
different Instructors in the Language Instructions for Newcomers to Canada
(“LINC”) program at Conestoga College (“the College”). Each grievor alleges that
the College has improperly classified them as Instructors rather than Professors.
These
grievances have been consolidated to be heard together before Arbitrator Parmar.
2. Sonia Waind filed grievance #2019-0237-0008 on November 11, 2019. Annette
Losier filed grievance #2020-0237-0001 on January 3, 2020. Both grievances are
attached at Schedule A.
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3. The College provided responses to these grievances on December 19, 2019,
and February 6, 2020, respectively (attached at Schedule B).
B. Past settlement between the Union and the College
4. The LINC program was initially part of the Waterloo District School Board. In
2008, the program became part of the College.
5. On March 15, 2010, OPSEU Local 237 (“the Union”) filed the g rievance
(“Grievance”) which is attached at Schedule C. It alleged the College improperly
contracted employees on Partial Load contracts when they were in fact sessional
employees teaching more than 12 hours per week and met the requirements for
full-time status
because this had continued for more than 12 months in a 24-month period.
6. The Union and the College reached a settlement, which was executed on
November 9, 2010 (“Settlement”) and is attached at Schedule D.
7. Pursuant to the Settlement, the Union and the College agreed that the College
would submit a proposal to Citizenship & Immigration Canada (CIC) requesting the
creation of positions for 3 full-time Professors and 9 full-time Instructors. The
College committed that it would create new full-time positions in LINC in
accordance with the
funding received from CIC. If funding was not approved for the 3/9 model, the
College agreed to secure as many full-time positions as possible.
C. Following the Settlement
8. Following the Settlement, the College hired 6 full-time Instructors and 1 full-time
Professor in the LINC program, which was the first professor in the LINC program
at Conestoga College. The first Professor was hired at the Cambridge LINC site.
A second professor returning to faculty from a management secondment started
at the
Kitchener LINC site.
9. The grievors worked as partial load Instructors in the LINC program before the
Settlement.
a. Sonia Waind was hired as a full-time Instructor on September 1, 2011.
Sonia applied to the first job posting that was posted after the
Settlement was reached.
b. Annette Losier was hired as a full-time Instructor on February 2, 2015.
10.The work that the grievors did as partial load Instructors and full-time Instructors
was substantially similar.
11. Since the Settlement, the Collective Agreement has been renewed 3 times.
12.The College has posted 20 jobs in the LINC program since the Settlement was
reached. These job postings are attached at Schedule E. The Union did not file
any grievances in relation to such postings, except for the grievance filed in relation
to this proceeding.
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13.Other than the current arbitration, there have not been any grievances relating
to the College’s job posting or hiring practices in the LINC program since the
Settlement. The Union has filed grievances concerning job postings in other
departments and programs.
D. Additional Information
14.Currently, the College has a total of 6 full-time Professors (including 3 site
coordinators) and 3 full-time Instructors in the LINC program, as well as several
partial load Instructors, sessional and part-time Instructors.
15.After becoming part of the College, the Union has been the bargaining agent
for the faculty working in the LINC program, like in other faculty departments. In
May 2018, Sonia Waind became a Union Steward. She was the first faculty
member who taught in the LINC program to hold a union representative role.
16.Professor and Instructor are Job Classifications defined in the Collective
Agreement between the parties. Professors have more responsibilities and are
paid more than Instructors.
17. The LINC program is federally funded directly and solely by Immigration,
Refugees and Citizenship Canada (IRCC). Eligible IRCC clients may enroll as
students in the LINC Program and do not pay any tuition.
[6] It is useful to also set out the terms of the MOA:
Whereas the Union filed a grievance dated March 15, 2010 under the collective
agreement between the College and the Union regarding partial load faculty in the
LINC program;
And whereas the parties wish to reach a full and final settl ement of all issues
related to the Grievance:
The Parties hereby agree as follows:
1. Representatives from the Union Local and College Management will meet, on
a without prejudice basis, with the partial load faculty teaching in the Language
Instruction for New Canadian (LINC) program on November 11, 2010. At this
meeting, the proposed settlement to the Union grievance will be presented,
specifically, that the College will submit a proposal to Citizenship & Immigration
Canada (CIC) which reflect the creation of three full time Professors and nine
full-time Instructors in the staffing model. Remaining hours to be covered will
include partial load and part time teaching assignments.
2. Partial load faculty currently teaching in the LINC program will be invited to
express their interest in a full-time teaching position with the LINC program.
This will be carried out in an anonymous fashion.
3. Subsequent to that meeting, the Director, Conestoga Language Institute, will
discuss with CIC the viability of the proposed staffing plan.
4. Should CIC approve the College’s proposed model for delivering LINC
training, the College agrees to the following:
- Successful candidates for the full time positions will have a full time start
date of April 1, 2011. This is subject to change should CIC agree to a
different date re-financing of the full-time faculty
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- Individuals hired into the full-time positions will have a probation period of
one year of continuous employment
- Individuals hired into the full time positions will have their start salary
calculated based on their current qualifications and experience as per the
Job Classification Plans contained in the collective agreement
5. It is agreed that the College will create new full time positions in LINC in
accordance with funding provided by CIC and that this will constitute a full and
final settlement of all issues related to the Grievance.
Should CIC not approve the funding of three full time Professor and nine full
time Instructor positions as put forward by the College in December 2010, the
College will endeavour to secure as many full time positions as possible
through CIC and will endeavour to secure additional full time positions through
future submissions to CIC. In any event, the Union acknowledges that the
College has made its best efforts to create full time positions in its LINC
delivery.
6. If CIC does not provide the funding necessary for the three full time Professor
and nine full time Instructor positions, the College will request that CIC provide
a letter outlining the rationale for its position.
7. In light of the foregoing, the Union hereby withdraws its grievance.
8. This settlement is without prejudice or precedent and shall not be raised in
future whatsoever, save and except to enforce the terms herein or as
otherwise required.
BRIEF SUMMARY OF PARTIES’ SUBMISSIONS
[7] The Union submits the evidence of the communications at issue is inadmissible on the basis of
settlement privilege. The Union submits it is widely acknowledged that communications made in
the context of settlement discussions are not admissible without the consent of both parties. The
Union submits that discussions during the grievance process, whether they relate to the
settlement or something else, are also privileged and inadmissible. The Union submits this
privilege extends to both written and oral communications.
[8] The Union submits the onus is on the College, as the party seeking to admit this evidence, to
establish there are exceptional circumstances warranting the admission of such evidence, and in
the present case there are, it asserts, no such exceptional circumstances. The Union notes the
2010 grievance alleged a breach of classification of employees based on hours of work, and was
not about classification based on job duties. At the time, some twenty-plus individuals were
employed as partial load instructors, and the 2010 grievance alleged that that were in fact
sessional employees given they worked the threshold number of hours to be classified as a
sessional employee. The Union submits the MOA is clear and unambiguous, and deals with the
hiring of full-time employees on the basis of the College obtaining funding for this hiring of full-
time employees. The Union submits the settlement does not address the nature of duties
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assigned. As such, any discussions the parties may have had with respect to assignment of
duties is inadmissible on the basis of this privilege.
[9] The Union also relies on paragraph 8 of the MOA which states the settlement is without prejudice
or precedent. The Union submits this paragraph should also prevent the College from relying on
the privileged discussions leading to the settlement.
[10] The Union submits that what the College is really attempting to do is lead evidence of
discussions the parties may have had in the grievance procedure beyond the scope of the
settlement set out in the MOA. The Union submits this is exactly the type of communication which
the privilege is intended to protect, ensuring the grievance process is a “blue sky community”
where parties can engage freely in any discussions.
[11] Alternatively, the Union submits that should I determine that some evidence of discussions
during the negotiations of the settlement are admissible, any discussions during the grievance
process, prior to the grievance even being referred to arbitration, should not be admissible since
they were not proximate to the settlement. The Union submits that clearly the grievance process
was not successful, since the matter was referred to arbitration and settled at that time.
[12] The College submits that the present situation falls within the exceptions for the application
of the general rule that settlement discussions are privileged. The College submits that the
caselaw, from both the courts and arbitrators, indicates that settlement privilege does not apply
when parties dispute the interpretation of a settlement. The College submits that while the Union’s
position is that the classifications of instructor and professor as set out in the collective agreement
govern the question of the appropriate classification of the Grievors, it is the College’s position
that the MOA is directly relevant to the instructor classification in the LINC context, and that
classification in the LINC context must be understood by reference to the MOA. It submits the
terms “staffing model”, “staffing plan” and “proposed model for delivering LINC training” in the
settlement address the matter of classification of positions. The College submits that its
interpretation of the MOA is all about the discussions and context around it, and it should be
permitted to lead this evidence before any determination as to the proper interpretation is made.
The College submits that in the present case there is a dispute between the parties about whether
the MOA affected the instructor classifications in the LINC context, and thus there is a dispute
about the scope of the settlement. In such circumstances, the College submits, the privilege
otherwise attached to settlement discussions does not apply.
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[13] The College submits that the evidence it seeks to lead will show that the parties talked
about different staffing models at various colleges, including the cost implications, and that the
union representatives agreed the work the instructors were doing at the time was properly
instructor work. While there were no professors in the LINC program at the time, the College
submits the fact that settlement uses the terms “instructor” and “professor” indicates the parties
were live to the distinction between the two terms. It intends to rely on the MOA and the evidence
about the communications and context leading to the settlement to assert the parties agreed the
LINC instructor positions were properly classified. The College submits this is evidence that
speaks to the scope of the settlement, and thus the settlement privilege does not apply.
[14] The College submits this evidence is crucial to its argument as to what the parties believed
the settlement to mean, and so we may have to go beyond just the face of the settlement, and
consider the evidence that shows the union accepted that the LINC instructors at the time were
properly classified as instructors. The College submits this is relevant evidence given there is no
dispute the work performed by the Grievors before and after the settlement was substantially
similar.
[15] The College submits this evidence will go to its argument that it relied on its understanding
of the settlement in the course of its actions after the settlement, and that the reliance constitutes
detrimental reliance. The College submits that it should be permitted to adduce this evidence and
explain why the College has interpreted the settlement as defining the instructor classification in
the LINC program for the nine years up to the filing of the current grievances. The College submits
that since it is attempting to enforce the 2010 settlement, the restrictions stipulated in paragraph
8 of the 2010 settlement do not apply.
[16] As for the Union’s submission that the grievance procedure discussions should be treated
differently, the College submitted the parties discussed potential resolutions during the grievance
process as well, and there is no arbitrary distinction to be made between the communications
before and after the referral to arbitration.
[17] In reply, the Union submits that the fact of a dispute between the part ies is not sufficient
to set aside the privilege; the question is whether it is necessary to prove the scope of the
settlement. The Union submits the MOA is clear on its face, that it is about seeking funding and
creating full-time positions, and the reference therein to the “staffing model” is about the full-time
employees. The Union submits this evidence, in addition to being privileged, is also irrelevant
given the MOA is clear and unambiguous.
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ANALYSIS
[18] The issue is whether evidence about the communications that occurred during the
negotiations that led to the settlement and communications that occurred during the grievance
process for the grievance which was resolved by the settlement are admissible. This issue arises
in the context of the College’s position that the MOA is relevant to determining the issue of the
appropriate classification of the instructor position in the present case. There is a dispute
between the parties as to whether the proper interpretation of the MOA addresses the issue of
the classification of the instructor position.
[19] The Union has objected to the admissibility of this evidence based on settlement privilege
and relevancy. While the discussions during the grievance process are generally referred to as
being protected by labour relations privilege, for the purposes of the present case it is sufficient
to refer to both sets of discussions which the College seeks to admit using the common term of
settlement privilege since the fundamental principles are similar.
[20] While the Union submitted paragraph 8 of the MOA prevents the College from relying on
the evidence at issue, that provision actually speaks to the MOA itself, not the underlying
discussions, and I observe the Union has not objected to the admissibility of the MOA. Rightly so
I might add, since consideration of the MOA is necessary to determine the College’s argument
the MOA serves as a bar to the instant grievance. The issue really is, given that the MOA is
admitted, whether the underlying settlement discussions are also admissible.
[21] Settlement privilege applies to protect communications between parties as they try to
settle a dispute. The importance of this privilege to the justice system is due to its critical value
in encouraging parties to resolve their disputes without litigation. The rationale of the privilege
goes beyond protecting a party with respect to that specific litigation, and extends to ensuring
there is no impairment on settlement discussions to resolve litigation generally. However, both
arbitrators and the courts have recognized there may be circumstances where the rule does not
apply. Such exceptions must be consistent with the goal of promoting settlements. This was
explained by the Supreme Court of Canada in Bombardier Inc. v. Union Carbide Canada Inc,
2014 SCC 35, as follows:
A communication that has led to a settlement will cease to be privileged if
disclosing it is necessary in order to prove the existence or the scope of the
settlement. Once the parties have agreed on a settlement, the general
interest of promoting settlements requires that they be able to prove the
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terms of the agreement. Far from outweighing the policy in favour of
promoting settlements (Sable Offshore, at para. 30), the reason for the
disclosure – to prove the terms of a settlement – tends to further it. This
rule makes sense because it serves the same purpose as the privilege
itself: to promote settlements.
[22] It is useful to note the factual circumstances of the case in which the Court made these
comments. In that case, parties to a civil proceeding engaged in a mediation. One party made
an offer of payment of a certain sum of money to resolve the legal dispute, and left the offer open
until a certain time after the cessation of the mediation. The other party subsequent ly accepted
the offer. The offer did not contain within it the language of the release that would attach to the
settlement. The parties subsequently had a dispute about the scope of the release, in terms of
whether only certain issues were settled or whether it was a global settlement of all future
disputes. One party sought to enforce its position about the scope of the release through the
court and sought to rely on the communications during the mediation, and the other party objected
on the basis of settlement privilege. The Court held that the principle of settlement privilege did
not preclude a party from producing evidence of communications during settlement negotiations
“in order to prove the existence or the scope of a settlement” (at para. 35). In so finding, the Court
emphasized this exception was a narrow one, and a party could produce such evidence only
insofar as it was necessary to prove the terms of the settlement.
[23] The notion that settlement privilege will not apply to evidence which is necessary to
determine an issue in dispute has been applied in arbitration in various contexts. For example,
in Loblaws Supermarkets Ltd. UFCW, Local 1000A, 2011 CarswellOnt 737 (McNamee), there
was a dispute about the scope of the grievance. The arbitrator found that discussions during the
grievance process which addressed the scope of the grievance were admissible.
[24] In City of Ottawa and IATSE, Local 471, 2017 CarswellOnt 21544 (Burkett), the grievance
required an interpretation of a provision of the collective agreement which addressed the scope
of the bargaining unit. The arbitrator concluded the provision was ambiguous and therefore
allowed the admission of extrinsic evidence as an aid to interpretation. The parties had previously
resolved proceedings before the labour board in relation to the union’s certification application by
way of a memorandum of agreement. At arbitration the union sought to enter into evidence the
‘without prejudice’ proposals made by the union in the course of discussions preceding the
execution of the settlement. The employer objected on the basis of settlement privilege. The
arbitrator admitted the evidence on the basis there was a dispute as to the meaning of a
settlement term.
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[25] Similarly, in Rainy River District School Board and ETFO (2014), 244 L.A.C. (4th) 53
(Surdykowski), a determination of the grievance required interpretation of a particular provision of
the collective agreement. An issue arose about the admissibility of proposals exchanged during
collective bargaining. The arbitrator cited Bombardier and stated that evidence of the context in
which collective agreement language was agreed was admissible subject to the requirement of
relevancy.
[26] In Telus Communications Inc. and TWU, 2014 CarswellNat 8884 (Hornung), the grievance
related to volunteers and the work of the bargaining unit. The employer’s position was that union
had not filed grievances in similar circumstances and so was estopped from filin g the instant
grievance. However, the employer objected to the admissibility of evidence relating to a grievance
that had been settled, submitting that the settlement discussions and the settlement itself was
privileged. The arbitrator rejected the argument, noting that it was the employer who had put the
issue of previous grievances into dispute, and so could not now assert the privilege to exclude
evidence relevant to determining that issue.
[27] Lastly, in OPSEU and OPSSU, 2017 CarswellOnt 14461 (Albertyn), the issue was whether
the union could rely on the minutes of settlement of another grievance, along with other arbitration
awards where a breach was found, to show that the employer had engaged in a pattern of
repeatedly breaching the collective agreement. The employer objected to admissibility of the
minutes on the basis of settlement privilege. Noting there was little point in a party negotiating a
settlement if it could not rely on the actual settlement itself, the arbitrator noted the minutes made
no reference to the issue of prejudice, a norm in labour relations. He concluded this meant the
minutes were presumably intended to be with prejudice, but that if there was evidence from the
settlement discussions which would suggest otherwise, it would be admissible.
[28] What these cases show is that evidence which otherwise may be subject to settlement
privilege is admissible if it is necessary to determine an issue in dispute, such as the scope of a
settlement or the interpretation of a term of a settlement. However, it is important to keep in mind
the caution in Bombardier, that the existence of a dispute does not mean the settlement
discussions are admissible holus bolus. In fact, the Court in that case indicated there should be
a separate motion to determine which specific evidence from the settlement discussions was
admissible on the basis of necessity (see para. 66). Only the discussions that directly relate and
assist in determining the dispute are admissible; the privilege continues to apply in respect of the
remainder of the settlement discussions.
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[29] Turning now to the specific matter at hand, in the course of the College’s submissions, the
College referred to both the scope of the settlement and an interpretation of the settlement. These
are two distinct terms with distinct implications in the context of an exception to settlement
privilege which limits reliance to settlement discussions only to the extent necessary.
[30] In the present case, there is and quite simply can be no dispute about the scope of the
settlement in the sense there can be no dispute as to the terms of the settlement. Unlike in
Bombardier, the parties confirmed the terms of the settlement in writing in the MOA. None of the
evidence the College seeks to lead suggests the parties agreed there would be another term of
the settlement which is not included in the MOA. The fact that during those discussions there
may have been a meeting of the minds on any issue, whether tied to the specific dispute at hand
or not, is not sufficient to conclude the parties agreed that would be a term of the settlement. To
the contrary, given the fact the parties recorded the terms of their settlement in writing, the only
reasonable conclusion is that only the terms recorded are those which the parties agreed would
be part of that particular settlement.
[31] There is, however, a dispute as to the proper interpretation of the terms that comprise the
settlement. The College submits that, properly interpreted, the MOA addresses the issue of
classification and the Union submits it does not. A dispute about the proper interpretation of the
settlement must be resolved through an interpretation of the wording of the terms of the
settlement, and there is a well-established set of principles to aid arbitrators in this task. As a
general principle, extrinsic evidence is permitted where it would aide in the task of interpretation,
to the extent it reveals the mutual intention of the parties as reflected in the written agreement. In
the present case, the College has not asserted the MOA is ambiguous, but does assert the
impugned evidence will provide the context to support its asserted interpretation of the MOA as
impacting the issue of classification. Without having fully heard the College’s argument as to the
proper interpretation of the terms of the MOA based on this evidence, it is not possible for me, at
this stage, to conclude that it is irrelevant and therefore not necessary. For that reason, I find the
evidence of the parties’ settlement discussions preceding the execution of the settlement is
admissible.
[32] In my view, the discussions in the grievance process are a different matter. The grievance
process is intended to be a place where parties have open, wide ranging discussions, given that
they are often at this stage just explaining their own understandings of the situation to each other.
While it is also a place where a grievance can be resolved, in the present case it clearly did not
resolve at that stage. The referral to arbitration is not an arbitrary dis tinction in this case; clearly
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the discussions before that did not resolve the matter and the Union decided it was prepared to
advance its case to arbitration. It was the discussions after the referral that ultimately resulted in
the resolution and formed the basis of the agreement documented in the MOA. Keeping in mind
the principle that settlement privilege should be applied unless necessary to resolve the issue in
dispute, I find that the discussions in the grievance process are sufficiently remote to the MOA
that they are not necessary. The evidence relating to the grievance process is not admissible.
[33] The Union’s objection is upheld in part, as set out above.
Dated this 7th day of June, 2021.
“Jasbir Parmar”
______________________________
Jasbir Parmar, SOLE ARBITRATOR