HomeMy WebLinkAboutReynolds 22-02-01IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act
BETWEEN:
HUMBER COLLEGE INSTITUE OF TECHNOLOGY AND ADVANCED LEARNING
(“Employer”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL562
(“Union”)
(Grievance of B. Reynolds – Admissibility)
_______________________________________________________________
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
William Hayter
On Behalf of the Union:
Stephanie Hobbs, Goldblatt Partners
Willow Petersen, Goldblatt Partners
Written submissions in March and April 2021, and a hearing held on January 19, 2022 by
videoconference.
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ISSUE
[1] This decision addresses the admissibility of certain documents and oral evidence relating to
bargaining history sought to be relied upon by the Union.
[2] The grievance alleges the Employer, Humber College, violated Article 13 of the collective
agreement. Article 13 states:
13.01 Except as may be otherwise mutually agreed between the employee and
the College, a work commissioned by the College, or produced pursuant to the
employee’s normal administrative or professional duties with the College, shall be
and remain the property of College. Other works by an employee shall be and
remain the property of the employee. Nothing contained herein shall adversely
affect any rights an employee may have under the Copyright Act (Canada) and in
particular the subsection addressing “work made in the course of employment”.
13.02 Academic freedom is fundamental to the realization and preservation of
the Colleges’ commitment to academic excellence. The purpose of this article is to
define the rights and obligations related to academic freedom.
13.03 All members of the College community shall support and protect the
fundamental principle of academic freedom.
13.04 Every faculty member is able to exercise academic freedom in the
performance of his/her duties. Academic freedom at the College includes the right
to enquire about, investigate, pursue, teach and speak freely about the academic
issues without fear of impairment to position or other reprisal.
13.05 The exercise of academic freedom is subject to the following
responsibilities:
i) In exercising academic freedom, employees shall be responsible for
adhering to legal parameters (such as but not limited to The Human Rights
Code, Criminal Code of Canada, civil liability, collective agreement
obligations), institutional regulations, Ministry Directives, requirements of
accrediting bodies, and program and curriculum requirements.
ii) Academic freedom carries with it the duty to use that freedom in a manner
consistent with the scholarly obligations to base research and teaching on an
honest search for knowledge. In exercising such freedom, faculty have a
responsibility to respect the academic freedom and rights of other members of
the college community.
iii) The College affirms that faculty shall be free to act and speak in their
capacity as public citizens provided they indicate they are speaking as
individuals and not acting as representatives of the College.
[3] Article 13.02- 13.05 is new language, added pursuant to an interest arbitration award by Arbitrator
William Kaplan in December 2017. For clarity, the collective agreement is negotiated between
the College Employer Council (CEC) and OPSEU. The Employer is one of the many Ontario
colleges that are members of the CEC.
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[4] Given how this case has evolved, the parties have agreed that I should first determine whether
Article 13, properly interpreted, includes the concept of academic freedom as it is generally
understood in the university sector (the “threshold issue”). (I observe that the Union described the
issue as “the concept of academic freedom as it has developed in the university sector” when it
expressed its written agreement to this process. I view that characterization as not distinctly
different from how I have expressed the issue.)
[5] The parties have agreed that the written briefs that were submitted to Arbitrator Kaplan by both
the Union and the CEC as part of the interest arbitration process are admissible for the purposes
of determining this issue. The Union indicated that it also intended to lead evidence of bargaining
history. The Employer objects to the admissibility of such evidence.
[6] The Union provided particulars of the evidence it sought to admit. The proposed evidence would
come from Professor JP Hornick. Summarily, Professor’s Hornick’s anticipated evidence will be
about the following: her understanding of the concept of academic freedom on the basis of her
involvement with a number of non-Employer organizations; discussions amongst the Union and
its membership about the issues around and importance of academic freedom; the proposals the
Union tabled during the 2012 round of bargaining relating to academic freedom; how the Union
came to draft its 2017 bargaining proposals and its goals in drafting those proposals, the
discussions with the CEC during the 2017 round of bargaining including CEC’s response to
completely reject the Union’s proposals and the CEC’s later proposal to include a Letter of
Understanding with respect to academic freedom. The Union also seeks to admit a number of
documents: an internal document comparing the union and management proposals from 2017;
other collective agreements the Union reviewed in drafting its proposals; a CEC “Academic
Bargaining Update” prepared in August 2017; an analysis of a CEC proposal in November 2017;
policies from other organizations relating to academic freedom; a decision of the British Columbia
Labour Relations Board from 1974 relating to inclusion of certain persons in a bargaining unit,
Professor Hornick’s personal notes of the 2017 round of bargaining; and Union press releases
from October 2016 to December 2017.
ANALYSIS
[7] The issue presently being determined is the interpretation of Article 13. Thus, the issue of
admissibility of the evidence the Union seeks to lead must be determined on the basis of its
relevance to that issue.
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[8] I pause to note that the Union suggested the test for admissibility of the evidence was arguable
relevance, relying upon a statement in Rainy River District School Board and ETFO, 2014
CarswellOnt 8002, that “[arguably relevant] is the well-established test for admissibility of
evidence in grievance arbitration proceedings”. That statement does not accord with any other
decision addressing admissibility of which I am aware, and so I respectfully disagree.
[9] Neither party has submitted that there is any ambiguity in Article 13.
[10] The law about the admissibility of extrinsic evidence, in circumstances where there is no
ambiguity, for the purposes of determining the proper interpretation of collective agreement
language is now well-established. This law has developed consistent with the principles set out
by the Supreme Court of Canada in Sattva Capital Corporation v. Creston Moly, 2014 SCC 53.
In that case, in addressing the task of interpreting commercial contracts, the Court emphasized
that interpretation should follow a practical, common-sense approach. It also emphasized that
the decision-maker’s overriding task was to determine the intent of the parties and the scope of
their understanding. The Court described how that should be done:
To do so, a decision-maker must read the contract as a whole, giving the words used
their ordinary and grammatical meaning, consistent with the surrounding
circumstances known to the parties at the time of the formation of the contract.
Consideration of the surrounding circumstances recognizes that ascertaining
contractual intention can be difficult when looking at words on their own, because
words alone do not have an immutable or absolute meaning…
[11] The Court went on to explain the value of “surrounding circumstances” at para 57-58:
[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 (Hayes Forest Services, at para. 14; and Hall, at p. 30). 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 (Hall, at pp. 15 and 30-
32). 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 (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular
Inc. (1997), 1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).
[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 (King, at paras. 66 and
70), 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
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which the language of the document would have been understood by a reasonable
man” (Investors Compensation Scheme, at p. 114). 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. [Emphasis added]
[12] Following Sattva, in the course of interpreting collective agreement language arbitrators
have consistently admitted and considered evidence of surrounding circumstances “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” (Sattva, para. 60). In doing so, they have
consistently noted that the words remain paramount, and determining the meaning of the words
must remain the focus of the interpretive task. To that end, evidence of bargaining history has
often been admitted, on the basis it forms the factual or contextual circumstances in which the
collective agreement has been arrived. Such evidence is useful to the extent it reflects what was
in the contemplation of the parties at the time of bargaining, such that it could shed light on what
the parties mutually intended when they ultimately agreed to the language at issue.
[13] In the present case, Article 13 was not arrived at by negotiation. It was awarded by
Arbitrator Kaplan. The fact that some of the language therein formed certain elements of both
the Union’s and the CEC’s respective proposals submitted in their briefs to Arbitrator Kaplan does
not change the fact that it was not agreed-upon language. Where the collective agreement
language has not been negotiated and agreed to by the parties themselves, it simply cannot be
concluded that the language reflects their mutual intention.
[14] Where collective agreement language has been awarded pursuant to an interest
arbitration award, the interpretive exercise moves from ascertaining the intention of the parties to
ascertaining the intention of the interest arbitrator: see Royal Victoria Hospital of Barrie and
Ontario Nurses Association, 2011 CanLii 26324, at para. 35. The principles of Sattva continue to
apply. To that end, the question is whether the evidence the Union seeks to lead can assist in
determining the meaning of the words of the collective agreement as intended by the arbitrator.
[15] The answer to that in the present instance must be no. None of the evidence the Union
seeks to lead was before the arbitrator. It cannot, therefore, have been in his contemplation. As
such, it cannot possibly shed any light on what he intended these words to mean when he
awarded this language.
[16] This evidence is distinctly different from the parties’ briefs submitted to the arbitrator. I
concur with the parties’ agreement that those documents, which were clearly known to the
arbitrator, are admissible as they form part of the contextual circumstances in which the language
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in the collective agreement was determined by the arbitrator. The weight to be accorded to them,
of course, remains to be determined.
[17] The Union made an alternative argument, suggesting that if I find Article 13 to be
ambiguous, even though it is not submitting that is the case, the evidence at issue would be
admissible. Given that neither party submits the language is ambiguous, I have not made any
such finding.
DISPOSITION
[18] The documentary and oral evidence the Union seeks to rely upon is not admissible.
DATED THIS 1ST DAY OF FEBRUARY, 2022
“Jasbir Parmar”
______________________________
Jasbir Parmar, SOLE ARBITRATOR