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HomeMy WebLinkAbout1984-1484.Carvalho.86-09-24Between Before .- For the Griever: IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Employer: Hearings: OPSEU (J. Canalho) - and - The Crown in Right of Ontario (Ministry of the Attorney General) R.J. Roberts I:J. Thomson G. Peckham L. Ro:hstein Counsel Gowling & Henderson Barristers & Solicitors .- Griever Employer S. Hodgson Manager, Personnel Services Human Resources Branch Ministry,of the Attorney General .Vice-Chairman Member Member #July 24, 1985 October 29, 1985 January 14, 1986 , -5 2. DECISION .This is a classification case in which submissions were made on comparison to the relevant class standards and class Usage. With respect to the latter submission, a further issue was raised whether the,case for the grievor might succeed on's showing that one other.person who did essentially the same work as the griever was classified at the higher level being.sought' in the grievance. For reasons which follow, the grievance is dismissed. The yrievor is a Bookkeeper in the Sheriff's Office in.Barrie,. Ontario. This is a relatively small.office, with a total of seven employees. managerial responsibilities are exercised by two of these persons, Mr. E. Bowles, the Sheriff, and Mr. J. Wilson, the Deputy Sheriff. There also is a Junior Deputy who is a member of the bargaining unit, His. A. Banting. The qrievor was promoted into her current positionin August,,. 197~8. Prior to that, she was a Search Clerk; which was classified at the level of Clerk 2'General. In January, 1984, the grievor received some unsettling information. It seems that some Bookkeepers who worked in other Sheriffs' 'Offices told her that in about 1981, they were upgraded from the classification of Clerk 3 General to Clerk 4 General. This.was the first that the grievor had heard of any general upgrading, and as a result, she decided to consult ' with Mr. Bowles regarding receiving similar treatment. 3. MY. Bowles reviewed the grievor's job specification with her, and finding that it was outdated, co-operated with her in preparing a proposed revision. Thereafter, on March 5, 1984, he sent the following letter to the Personnel Office for the Ministry in Toronto: Mr. M. Kaufman, Personnel Officer, Ministry of the Attorney General, Human Resources, 14th Floor, 18 King St. East, TORONTO, Ontario, MSC lC5. Dear Murray: Enclosed herewith is a revised Job Specification Sheet for Julie Carvalho, who is a Clerk 3 General. Julie feels that this position should be reclassified to a Clerk 4 General position and I concur with her. Julie is an A-l bookkeeper in my opinion and has o~ccu$ed this position for the past 6 years. Also enclosed is a Summary of the Duties and Responsibilities of Jean Cambourne, Search and Correspondence Clerk, Clerk 2 General. Jean frequently does the filing.of Writs of File when that girl is overloaded and assists the Process Clerk when she is overloaded. I feel that due consideration should be given to~having her 'made a Clerk 3 General. Finally, 1,enclose a Summary of the Duties and Responsibilities for Susan Whalen who is classified as a Search~ Clerk, Clerk ,2 General Susan does considerably more than searching, as you will see by the other related tasks . 4. which she states that she spends 60% of her ~time compared to 40% searching. This would normally apply 'most days with the exception of the middle and end of the month when the ~percentaqe probably would beg reversed. Yours truly, Earl G. Bowles, Sheriff. Mr. Bowles indicated that he concurred with the grievor's view that she should be upgraded to the classification of Clerk 4 General. In the late summer of 1984, apparently as part of a response to Mr. Bowles' request, an audit of the grievor's job was performed. About one month later, there was sent to the Sheriff's Office in Barrie the fOllOwinq revised job specification: .- POSITION: Bookkeeper PREVIOUS POSITION TITLE: Bookkeeper CLASSIFICATION TITLE: ,Clerk 3 General MINISTRY: Attorney General BRANCH: County .& Distc. Courts SECTION: Sheriff PURPOSE OF POSITION - To act as bookkeeper and to perform related duties in the Sheriff's Office, County of Simcoe SUMMARY OF DUTIES AND RESPONSIBILITIES I \I . ...:, i 5. SUNDRY OF DUTIES AND RESPONSIBILITIES: 95% Under'minimal supervision provides bookkeeping services in the Sheriff's Office (NOTE: Guidance is however available if required) by performing duties such as: , REVENUE ACCOUNT - Totalling and balancing cash and fees daily (average intake approx. $1,000 per day); checking searches and certificates and totalling amount of searches and certificates daily; posting searches and certificates to Cash~ & Fee Book as bulk figure daily: preparing daily bank deposits; preparing daily recon-' ciliation statements; -~ checking process serving invoices (5,process servers) and entering invoices daily in Cash.&.Fee Book and further entering allocation of process serving officers' mileages; posting in- voices to accounts receivable cards: - receiving chegues and payment~s for accounts receivable for items such as payments for process serving, certificates not paid for in cash, fees for levies, etc.: entering accounts receivable .' in Cash & Fee Book daily and posting to acc~dunts receivable cards: balancing accounts receivable twice a month; preparing accounts receivable list'once a month; clearlnq and filing of all paid in full accounts; '. followlnq up on delinquent accounts by telephone or correspondence up to six months delinquentthen referring to supervisor if funds not received: reporting,and forwardinq uncollected accounts receivable to Finance & Service Branch; (Note: approx; 140-150 current accounts receivable accounts with $5-6.000 owing in a month). - enterinq Wits of Fi Fa, k?rits of Possession, Writs of Delivery, Orders and execution of levies in Cash L Fee Book: - entering all other, miscellaneous revenue received by the Sheriff's Office; - balancing process serving officers' mileages twice a month and issuing and co-signing cheques; - issuing and co-signing all other revenue disbursement cheques; - posting revenue.disbursement cheques to Disbursement Journal; balancing Disbursement $ournal monthly: --.entering all cash and charge revenue items and balancing the receipts twice. monthly: - balancing fees and disbursements at month end, closing receipts and disbursements journals; pr,eparing summary, bank reconcili- ation and monthly,report and forwarding remittance df funds due to-the Province together with the monthly reports; i __-__~~__-.- ACCOUNTABLE WARRANT - ADVANCE ACCOUNT - checking and totalling~ invoices and obtaining approval from Sheriff or Deputy for payment for expenses for the adminis- tration of justice, such as jury fees and expenses, crown witness fees and expenses, office expenses for the Sheriff's Office and * the Crown Attorney's Office and all other miscellaneous expenses related to the administration of justice; - issuing Accountable Warrant cheques; co-signing cheques; distributing and mailing cheques (approx. 250 per month, approx. $22,000 per month); - completing Manual Cheque Register: ~. - posting disbursements to Accountable Warrant ledger: totalling and balancing ledger twice monthly: - submitting report to Finance & Services Branch twice monthly together with ledger sheets and receipts and invoices_~duly approved for payment: TRUST ACCOUNT /co-signing cheques: checking totals and balancing Trust Account listing outstanding cheques; reconciling ~monthly bank statement: preparin,g summary at month end: preparing monthly report for Finance & Services Branch: providing assistance to Senior Fi Fa and Trust Clerk by making adjustments or corrections to the ledger book as necessary: GENERAL DUTIES PERTAINING TO ALL ACCOUNTS - performing follow up prccedures on all debit and credit memos received from banks: replacing lost or misplaced cheques and obtaining the necessary documentation such as affidavits and stop-payments requests; clearing stale-dated cheques f~rom the ledgers; entering credit/debits to correct or adjust books of record: - preparing year end reports for the Fees, Trust and Advance Accounts-for the Finance &. Services branch; - setting up new bookkeeping procedures to conform to changes and requests made in the accounting system by Finance & Services: inconjunction with supervisor setting up new procedures or methods as necessary; v - ans,?ering inquiries and providing for any correspondence re- quired on accounts, fees or payments from the legal profession, j'urors, witriesses and public and maintaining liaison with Finance & Service Branch in..Toronto as necessary: - providing guidance and technical assistance re accounts matters to other staff as required: double-checking daily cash balances done by two cashiers; 7. 5% Participates in the general work of the office by: - acting on behalf of other staff members as required during absence, illness, etc. . - taking dictation in shorthand from Official or others to produce correspondence, etc. as necessary: - as assigned. SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE b7ORK Responsible related clerical experience; good understanding of basic bookkeeping practices and,principles: familiarity with functions of Sheriff's Office. Good typing skills, ability to deal tactfully with legal profession and general public. The specification allocated to the job of the,.grievor,'s existing classification of Clerk 3 General. At the h~earing, the grievor testified.that the foregoing job specification was generally accurate, but that there were some errors and omissions. She stated that she believed that she worked without any supervision while the specifications stated that there was miminal supervision. In addition, the grievor testified that the specification omitted any reference to checking other peoples' work. She stated that she hid so, in the sense of checking for accuracy the calculations of Search Clerks and Process Clerks. The grievor added,that at the end of each month, she even checked the work of the Sheriff's Secretary, who was classified as a Clerk &General. This occurred when the grievor ,reconciled the books kept by the latter with the bank. Generally, the grievor agreed that 95% of her duties involved bookkeeping. --~--~ _ --__ .-, 8. In order to support the class usage aspect of the case for the grievor, counsel for the Union called two other Sheriffs' BooKkeepers who possessed the classification of Clerk 4 General. The first was MS. D: McGriskin, from the Sheriff's Office in Whitby, Ontario. The second was Ms. M: Barbour, from the Sheriff's Office in Mewmarket. _ The evidence left little doubt that the one having the job most similar to that of the grievor was Ms. McGriskin. Shea testified that, but for inconsequential differences, she and the grievor performed the same work. .Like the grievor, she stated, the major. part of her job was bookkeeping. This inciuded checking the work of 'others for accuracy and balancing. From Ms. McGriskin's testimony, it was clear that she did not per~form any tasks of greater complexity nor did she have any higher degree of responsibility than ~~._ did the grievor. MS. Barbourtestified that 75 to 80% of her job involved bookkeeping. The remaining part of her job, she testified, involved assisting other staff, preparing correspondence, such as letters to lawyers, assisting at the counter, searching in peak periods, and assisting on the telephone. Ms:Barbaur also~ stated that she was the person that the other emsloyees in the office could turn'to with questions that came up. This was, she testified, part of her responsibility. She was the only Clerk 4 General in the Office. The other bargaining unit employees held the classifications of Clerk 2 and Clerk 3 General. 9. Also entered into evidence in support of the case for class usaqe, was the job specification for the Accounting and J~ury Clerk in Milton, Ontario. This job specification Gas allocated the classification of Clerk 4 General. No witness was called to testify as to the precise nature of this job; however, the griever. gave some evidence in an attempt to compare ,her responsibilities with those set forth in the job specification.. Essentialiy, the specification indicated'that 70% of the job involved bookkeeping; 20% involved assuming full responsibility for the summoning of jurors; and the remaining 10% involved general office work and responsible clerical duties. The grievor testified,that she performed most of the bookkeeping duties and some of the office - and clerical responsibilities set forth in this specification; however, she did not have any responSibility for the summoning of jurors. In the Barrie Office, she testicied, this responsibility was shared by the ,Deputy, the Junior Deputy and Contract Staff ' hired on a part-time basis. The qrievor's only involvement, she testified, was in participating with the other staff in helping to weed out obvious disqualifications and performing the necessary bookkeeping functions with respect to I jurors fees and expenses. The Senior Deputy{ Mr. J. Wilson, testsified on behalf of the Ministry. Essentially,~ he-confirmed that the qrievor worked with a minimum of supervision. He stated that because of the length of time that the qrievor had been in the job of 'Bookkeeper, there were few, if any, problems, that the grievor - --------.-.-. L_-- _.._ ~~~~~~_ 10. could not resolve on her own. He explained that the job of Book- keeper, on a day-to-day basis was repetitous, and although it wa; "fairly comp1ex"'i.t would, once learned, allow the person in the job to perform the bookkeeping functions without seeking assistance. Mr. Wrlson confirmed that about 95% of the grievor's duties involved bookkeeping. He stated that in addition,.the grievor was required to perform other duties as needed, including taking shorthand for him, typing affidavits and assisting in :mailing out questionnaires to prospective jurors. On cross- examination, Mr. Wilson .agreed that for one hour each day, the grievor filled in while the Counter Clerk~took a lunchbreak. He indicated that everyone~ else in the office participated in relieving colleagues at lunch time. Mr. Wilson stated that while .- filling in at lunch the grievor could be required to answer general inquiries, perform searches, accept renewals of writs, compile and record Process Server's fees, receive writs of execution and accept and review documents for service. He added, however, that during lunch it was not a very busy time. 8, Usually, the griever's activities would be limited to answering telephone calls. Mr. Wilson also indicated on cross-examination that he-did not believe that the grievor was the employee in the ., office who dealt the most wrth auditors. He stated that he . _.d’ 11. knew that the auditors came into the.office and dealt with the grievor, but that they spent the majority of their time with MS.’ S. Carpenter, who was responsible for the trust account. Mr. Wilson said that the last time that the auditors came into the Barrie Office was a couple of years ago, and that he was in a position to know with whom they were dealing because his office was proximate to the vault, where the auditors performed their work. The most interesting evidence adduced on behalf of the Ministry, was given by Ms. Kay Grant, the Deputy Director. of Human Resources for the Ministry of the Attorney General. Ms. Grant indicated that she had,19 years' experience'in classifi- cation, and in her testimony she sought to lend some assistance in.defining the differences between the levels of Clerk 3 and Clerk 4 General. Essentially, Ms. Grant sought to define the difference between these levels on the criteria of .(l) complexity: (2) decision making and initiative;~ and (3) availability of supervision. As to complexity, Ms. Grant indicated that there was a degree of difference between-the two levels, in the.sense. that the level of Clerk 3 General called for clerical work of some complexity while Clerk 4 General called for a variety of responsible tasks, She added that Clerk 4 General also required ~broader background knowledge. * _‘ 12. The greatest degree of difference between the two levels, Ms. Grant testified, was in the area of decision making and in,itiative. As 'to decision making, the classification of Clerk 3 General merely required the exercise of judgment in selecting alternatives in established procedures and assessing accuracy. The Clerk ‘4 General classification, however, required the exercise of judg-. ment in dealing with variations from established guidelines,~ indicating a much higher level of discretion in the employee. She emphasized this point by referring~to .the examples given in then class definition which indicated that an employee'at the Clerk 4 General level possessed authority to.resolve points by authoriiing adjustments. By contrast, Ms. Grant' stated, the Clerk 3 General classification left no room for discretion. "The employee was confined to following up errors and making corr- ections. Turning to availability of supervision, it was noted by MS.' Grant that while the Clerk 3 General classification stated that employees at that level would refer doubtful matters to supervisors, that did not have to happen too often. The Clerk 4 General classification however, provided for little opportunity for direct supervision by others. Ms. Grant explained that this could mean a geographic situation or, a situation where supervision was not always available, or it could mean &position where decision- making was done by the employee as part of his or her job. . ..’ 13. be needed to justify a reclassification from Clerk 3 to Clerk 4 General. She stated that there would have to Abe some aspect of the job where the employee was exercising independence and authority to make decisions as part of the job or where, as part of the job the employee had questions referred to him. Turning to the.grievor's job description, Ms. Grant stated that this did not fullful either of these requirements because the grievor had no authority to make changes nor any discretion to determine how her-work was done. For example, it was stated, the grievor had no authority to decide what type of invoices might be paid nor to determine what would go into an accountable warra,nt:. These matters were determined by others. When she wasshown the position specification of Ms. McGriskin of the Sheriff's Office in Whitby, Ms. Grant testified that she would ~classify the job at the Clerk 3 level, and would kot give it its existing classification of Clerk 4 General. She stated that the bookkeeping function is normally classified .at the Clerk 3 level, and that she did not know of any.other bookkeeping job which was classified at the higher Clerk 4 level. Bookkeeping was classified in this way, she stated, because guidelines are laid out as to how books are kept. .The Bookkeeper does not have any authorization to change, allow or disallow entries in his or her own right. The function, she stated, equates to the kind of statements found in the Clerk 3 General class definition. As to the job of Ms. Barbour of the Sheriff's Office ~-____---___~~~--.-~~ __-._ ~.___~ 14. 'in Newmarket, Ms. Grant stated that she agreed that it was at the Clerk 4 General level. She stated that this was due to the fact that 25% of the. function of the job was to act as a Senior Clerk. In this capacity, the~,employee was expected to give direction, training and .technical guidance to other clerks in the office, and also to fill in for the Deputy in his or her absence. Ms. Grant stated that this was the kind of discretion that Classification Officers looked for in assigning to such a job the Clerk 4 General level. In fact, Ms. Grant added, because herown initials were at the side of the position specification for this particular job, .fhis must have been the reason why the job was classified as a Clerk 4. Without this Senior Clerk function,. it was stated, the job would have remained at the.Clerk. 3 level. Similar testimony was given with respect to the job specification for the~Accountinq and Jury Clerk in Milton, Ontario. The job was allocated the level of Clerk 4 General because of the responsibility of the employee for the summoning of jurors. ,This function was, it was stated, a significant clerica function which exemplified the variety of responsible clerical work described in the Clerk 4 General classification. If this function was removed 'from the job description, Ms. Grant stated, it would revert to the leve;'.of Clerk 3 General. On cross-examination, Ms. Grant explained that in dealing with juries, an employee was required to exercise more discretion than in bookkeeping. This would have to be exercised, Ms. Grant ___~ ____- ___-- ,-~- stated, in dealing with'the people ~involved in numerous panels, changes in the courts, and sending home and recalling jurors. In 'such circumstances, itwas stated, the employee must assess the situation and make a determination of what is needed. When pressed further with respect to this point, Ms. Grant indicated that these functions equated to a group leader-type of role calling for a combination of knowledge, discretion and supervision in dealing with the day-to-day operations of the jury system. In argument, ~counsel for the Union put the case.for the yrievor on the following grounds: (1.) the grievor's job, 'measured against the class standards, best fit' 'that for Clerk 4 General and not Clerk 3; and, (2) even if this were not so, the employer's actual classification practices departed from the standards in cases involving bookkeepers and accordingly class usage would dictate that the grievor alsomerited the Clerk 4 level. .In support of these submissions, counsel made exceptionally able arguments for which the Board expresses its admiration. As to the first submission, however, the Board was not convinced that, measured against the Class Standards, the job of the grievor "best fi$"the Clerk 4 Class Standard. Counsel for the Union candidly conceded in her argument that the crux of the issue between'the Union and the Ministry on this score was that, as a matter of policy, the Ministry took the position that a bookkeeper per se could never be a Clerk 4. Something in itself, was suffic ient 16. ,ly complex, responsible, etc., to merit : the Clerk 4 designation. We have reached the conclusion that while the bookkeeping function fails close.to the borderline between Clerk 3 and Clerk 4, the Ministry was not in error in classifying it at the Clerk 3 level. In this regard, we.were impressed by the submissions of c,ounsel for the Ministry and also the testimony of MS. Grant. We agree that while the bookkeeping job of the grievor involves a,number of complex duties, it does not require the level of decision-making and initiative which would elevate the job 'to the level of Clerk 4 General. These decisions appear to be limited to following-up of errors, making corrections, and preparing reports. They do not involve the use of .discretion ,in deciding or being responsible for decisions which~<are not covered by established procedures. In particular, we ~agree that performing the accounting task of reconciliation does not involve the grievor in dealing with variations from established procedures. Accord- ingly, on this branch of the argument, the decision must go against the position of the grievor., Turning to the class usage argument, this brought into qUeStiOn application of the rec:n~ decision of the Divisional Court in Re Lowman and Ministry of Transportation and Communications. ,Unpubl,ished Reasons for Judgment (November 15, 1984). Prior to this decision, it was the position of the Grievance Settlement Board that in order to ~succeed on class usage, it was necessary --__ --- .~_- -.._ ~~..~ ,..__ ___ . . . i 17. for the Union to show that in practice, the employer had varied the written Class Standard in such a way as to encompass the work of the grievor. The Board took the position that there "must be a consistent practice of varying the Class Standard", Re Lowman and MTC (19841, G.S.B. #13/82 (Saltman). Indeed, in line with this requirement, the Board in Lowman, supra, decided against the grievors on the ground that the “practice” requirementwas not satisfied by showing that only one employee in a higher classi- fication performed the.same work. Upon judicial review, the Divisional Court quashed then decision of the Board in Lowman, stating, in'pertinent part: Having found that there was an employee performing substantially the same duties.as the grievors and that such empl,oyee had been .deliberately classified by the respondent in a higher classification, the Board acted . . .without jurisdiction in failing to find that the grievor would be properly classified in the higher classification. The higher classified employee and the four grievor~s are the only persons in the public service performing the function of remote sensory supervision. In the circumstances we are of the opinion that it does not assist the respondent to argue, that the senior employee ~may have'been improperly classified. . . . (Divisicnal Court Decision, supra, at p. 1.) The matter was remitted to the Board for fur~ther proceedings. 18. Counsel for the Union submitted that the foregoing decision ought to be interpreted as an indication that it was sufQicient to establish a prima facie case for the griever to show that at least one person who performed the same ~work was classified at a higher level: This, it was submitted, would obligate the Ministry to'lead evidence showing that it had.not, in fact, departed from its classification practices. Because no such evidence was led by the Ministry, the argument concluded, the decision of this Board on class.usage must go in favour of the grievor. While this was'an intriguing argument,..it must be con- cluded that it would stretch matters too far for the Board to . accept it. Reading the decision of the Divisional Court in Re L&man as a whole, we are led to conclude that the Divisional ,- Court did not intend to reject the general rule of this Board that in order to succeed on a class usage argument the Union must show the existence of a consistent practice of varying the Class Standard. Absent special circumstances, it does not satisfy this "practice". requirement to show that only one employee in a higher classification performed the same work as the grievor. The Lownian case, supra, was an example of special cir- cumstances which brought the case outside the ambit of the general rule. As the Divisional Court noted in its decision, it would have been impossible for the grievors to show .that more than one other employee who performed essentially the same work was .; . 19. classified at the claimed.higher level. In the entire Civil Service, there were only five persons performing similar work-- the-four grievors and the higher classified employee with whom they sought to compare themselves. It seems to us that the Divisional Court recognized that to apply the "practice" require- ment of the Board in these circumstances would be tantamount to denying the qrievors their right to grieve. ' In the present case, there were not any special circum- stances to render inapplicable the general "practice" requirement. Moreoei;er, -it remained the burden of the Union to produce a prima facie case on this aspect of the matter. In line with this, it seems, the Union produced the testimony of Ms. D.~ McGriskin - from the Sheriff's Office in Whitby and Ms. Barbour from the Sheriff's Office in Newmarket. There also was entered into evidence the job specification for the accounting-and jury clerk in Milton. and Considering the totality of, the evidence, however. n particular the evidence of Ms. Grant regarding the fore- I going positions, it must be concluded that the requisite divergence in practice was not shown. ‘AS we already have found, bookkeeping duties do fall close to the borderlines between Clerk 3 and Clerk. 4 General. And we accept the evidence.of Ms. Grant that the additional duties beyond bookkeeping which comprised from 20- 30% of the jobs in Newmarket and Milton, were sufficient to bring them to the level of Clerk 4 General'. The only higher 20. classified job which was shown to be substantially similar to that of the grievor was that at Whitby. But, as has been indicated, in the absence of special circumstances the existence of one substantially similar job in a higher classification does not show that in practice, the Ministry varied the written Class Standard so as to encompass the work of the grievor. As a result, the class usage argument must be resolved in favour of the Ministry. There remains one matter to address. It will be recalled that Ms. grant testified that, in her view, it had been a mistake to assign to the job of MS. McGriskin in Whitby the classifi- cation of Clerk 4 GeneraI. This mistake, according to the testimony of &MS. Grant, only came to the attention of the Ministry by virtue _ of the presence of Ms. McGriskin as a witness for the grievor in the present proceeding. The Board wa_s-further given to understand that as a result, the Ministry had begun to take steps to down- grade the level of Ms. McGriskin's job. This was a matter of great concern to the Board. Down' grading someone who has come forward to testify as a witness on behalf of a grievor can be interpreted as retaliatory, even though this was not the intention of the Ministry. Even if the inference of retaliation were not drawn, substantial deterrence would result. The interest of other employees in testifying on behalf of a gtievor in a class usage case would be chilled in the light of such actions. The potential for the creation of this "chilling effect" is disturbing to the Board. If it were to oc.cut, it might hamper the'processing of the merits of grievances before the Board. For these reasons, we caution the Ministry carefully to measure its response to matters which come to its attention by virtue of the evidence of supporting witnesses in cases such as the one at. hand. The grievance is dismissed. DATED at London, Ontario, this 24th day of September, 1986. Vice-Chairman G. Peckham, Member