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HomeMy WebLinkAbout2001-0534.Hunt et al.13-10-23 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#2001-0534, 2003-2944, 2008-3397 UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hunt et al) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Randi H. Abramsky Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Omar Shahab Ministry of Government Services Legal Services Branch Counsel HEARING October 1st, 2013 - 2 - Decision [1] Following my decision of September 17, 2012, the parties were unable to resolve three issues and sought clarification. This decision addresses those remaining issues. 1. Expenses incurred in transcript production [2] The Union contends that in calculating what is owed to Ms. Helen Haggith, the expenses that she incurred in the production of transcripts should be taken into account. Under the parties’ calculations, if such expenses are considered, Ms. Haggith had a loss of $1747.00 in 2004. [3] The Employer contends that I previously addressed this issue in my earlier decision, when I concluded that out of pocket expenses did not have to be reimbursed by the Employer. It further asserts that even if they must be considered, the calculation must be made on an overall basis, not a year-to-year basis. In support, it cites to Re York University and C.U.P.E., Local 1356 (Price Grievance), [2008] O.L.A.A. No. 670 (Chauvin); Re City of Ottawa and Civic Institute of Professional Personnel (Chadaksaz Grievance) (2010), 197 L.A.C. (4th) 369 (P. Picher); Re Metropolitan Toronto and C.U.P.E., Local 79 (Yeatman Grievance) [2002] O.L.A.A. No. 264 (Marcotte) [4] This matter was not decided in my earlier ruling. In that decision, the issue was whether the Employer had to reimburse Ms. Haggith for the expenses she incurred in the production of transcripts. I determined, at par. 124, that it did not have to do so because “[b]ased solely on the collective agreement, there is no entitlement to reimbursement.” Accordingly, I could not “conclude that the Employer would have paid for this equipment and/or supplies if it had not violated the collective agreement.” [5] That is a different issue than whether the expenses incurred should be considered in determining what is owed to Ms. Haggith. In my view, those expenses – at least a portion of them – should be considered in a “make whole” determination. The issue is complicated, however. As noted in the prior decision, at par. 123: This is another one of those situations of trying to fit a “circle into a square.” By treating the Court Reporters as independent contractors for transcription work, the Employer required them to work from home (or their own office) and supply the “tools” they required…. The situation is further complicated because most of the equipment for which the Union seeks reimbursement may be used for non- transcription purposes – the computer, the printer, the office furniture and supplies. The transcriber, in contrast, is clearly limited to transcript production. … Accordingly, there may be some difficulty in ascribing a percentage of the costs incurred to be included in the calculation. But certainly some proportion of the expenses should be considered. They were costs incurred in the production of transcripts which the Court Reporters were required to pay out of their own pocket. Although the Employer did not have to reimburse them for these expenses, the expenses (or a portion of them) should be taken into account in determining a “make whole” remedy. - 3 - [6] The other issue is whether this calculation should be made on a year-by-year basis, or overall. The Employer argues that the Union cannot isolate 2004 from other years and that in calculating what, if anything, is owed, one must look at the entire period. It submits that the parties cannot isolate one week, one month or one year. In support, it cites to the cases listed above. [7] The Union asserts, in reply, that if the entire period is considered, it gives the Employer a benefit from its prolonged, continual failure to abide by the collective agreement. The case law cited, it argues, deal with discreet period of time, whereas here the breach is ongoing. It submits that, in these circumstances, it is appropriate to look at individual years so that the Employer does not benefit by not applying the collective agreement. [8] The cases cited by the Employer do stand for the proposition that the “make whole” analysis applies to the entire period in question, although none of them involve the length of time involved here. In Re City of Ottawa, supra at par. 22, the Union argued that the grievor was entitled to lost wages, and argued that “when assessing lost wages during a period of mitigation, the appropriate procedure is to calculate whether there has been any loss of wages under any individual contract rather than over the period as a whole.” Counsel for the City argued “that any loss under an individual contract should be balanced against any net gain over the entire period.” The Board of Arbitration agreed with the City, concluding that it “has not been persuaded by the assertion of counsel for the Union, for which no precedent was submitted, that each contract should be assessed in isolation and that account should be given to only the single contract where there was a wage deficit.” Overall, the grievor made more money in the temporary contracts than she would have in her home position and consequently, no wage loss was payable. [9] In Re York University, supra, the Union argued that the first four weeks after the grievor’s improper termination, while he received termination pay, should not be subject to the duty to mitigate. During that time, the grievor had obtained a higher-paying job. The arbitrator rejected that contention, concluding at par. 23, that “[t]he duty to mitigate applies to the entire period from February 8, 2007 to May 16, 2008, while Mr. Price was not working at York University and was therefore available, and obligated, to obtain income from other sources. The four weeks following February 8, 2007 is not exempt from the duty to mitigate.” [10] Likewise, in Re Metropolitan Toronto, supra at par. 23, the arbitrator determined that “the proper loss-mitigation calculation in the instant case includes all of the grievor’s reported earnings…for the period of time August 12, 1997 to May 30, 2011 inclusive.” [11] The case law, therefore, states for the proposition that the entire period, not just one year, needs to be reviewed in calculating a make-whole remedy. With respect to the Union’s argument that this approach improperly benefits the Employer and allows it to benefit from its continuing breach, I agree with the Union that it is significant that the original grievance dates back to 2001 and that while the original decision was issued in July 2006, the Employer has still not complied with the collective agreement and continues to treat Court Reporters as independent contractors for the production of transcripts. What is not clear, however, is that an overall, versus yearly, calculation will always benefit the Employer. There is no evidence that this would always be the case. Consequently, as the Board of Arbitration concluded in Re City of Ottawa, supra, I am not persuaded that each year should be assessed in isolation and that account should be given to only the single year where there was a wage deficit. - 4 - 2. Union Dues [12] In this matter, there is a Union grievance as well as a group grievance. The Union alleges that the Employer has not remitted the dues owed to it for the members’ production of transcripts, as required by the collective agreement. Article 4 of the collective agreement states: 4.1 There shall be deducted from the regular bi-weekly pay of every employee appointed to the regular staff of the Regular service a sum in lieu of membership dues equivalent to the bi-weekly dues of the Ontario Public Service Employees Union. 4.2 The deductions referred to herein shall be remitted to the Ontario Public Service Employees Union. These provisions require the Employer to deduct dues “from the regular bi-weekly pay” of employees and remit that sum to OPSEU. This did not happen because the Employer treated the Court Reporters as independent contractors for the production of transcript work, and continues to do so. [13] The Union submits that it is the Employer who should be required to pay these dues, plus interest, as a result of its continuing treatment of the Court Reporters as independent contractors. In support it cites to Re Kimberly-Clark Forest Products Inc. and Industrial Wood and Allied Workers of Canada, Local 2693 (Bulk Systems Grievance) [2002] O.L.A.A. No. 874 (Gray) and Office and Professional Employees’ International Union, Local 378 and British Columbia Hydro and Power Authority (2002), 115 L.A.C. (4th) 242 (Dorsey). It submits that in a contracting-out case, the remedy is payment by the Employer of the dues plus interest. [14] The Employer takes the position that any dues that are owed to the Union are owed by Ms. Haggith and the other employees, not the Employer. It submits that, unlike the typical contracting-out case, the employees here are members of the bargaining unit and should be required to pay any dues owed. It argues that the Employer does not “owe” dues; it merely remits the members’ dues. Any order to do so, it submits, would be punitive in nature, which would be improper. It argues that the Board should not factor in the Union’s assertions that it has been a “bad actor” and that “make-whole” relief cannot be punitive. In support, it cites to Re United Steelworkers and Triangle Conduit & Cable Canada (1968) Ltd. (1970) 21 L.A.C. 332 (Weiler); Re Canada Post Corp. and C.U.P.W. (1992), 29 L.A.C. (4th) 289 (Burkett); Re Central Web Offset Ltd. [2011] A.L.R.B.D. No. 8 (Wallace); Re Canadian Appliance Manufacturing Company Ltd. and United Steelworkers of America, Locals 3129 and 7921 (1978), 20 L.A.C. (2d) 59 (Shime). [15] The question, therefore, is whether the “contracting out” approach, or the “employee pays” approach suggested by the Employer should be applied here. Having carefully considered the case law and arguments, I conclude that the “contracting out” approach should apply because the Employer did contract out this work. [16] Where an employer improperly contracts out bargaining unit work, the remedy is that the Employer pay the Union for the lost dues. In Re British Columbia Hydro and Power Authority, supra at par. 70, the arbitrator determined that the employer had improperly contracted out work that should have been performed by bargaining unit employees, and that “[t]he only practical - 5 - remedy at this time… is that the employer pay to the union an amount equivalent to the union dues that would have been remitted by the persons who performed the work had they been employed as employees under the collective agreement.” Likewise, in Re Kimberly-Clark Forest Products, Inc., supra at par. 86, the board of arbitration determined that there had been an improper contracting out of bargaining unit work and that “[t]he union is entitled to union dues…for each Bulk Systems driver who hauled any of the loads in issue, for the period or periods during which the driver did that, plus interest to compensate for the delay in payment.” [17] The Employer’s contention that the “independent contractor” remedy is inapplicable because the individuals who performed the transcription work are “employees” is unpersuasive. The anomaly of this case is that the same person who took the record and was treated as an “employee” for that function was then treated as an “independent contractor” for the production of the transcript. They were not paid wages for that work and dues were not deducted – yet wages should have been paid and dues deducted and remitted to the Union. The Union, under Article 4, lost a significant benefit to which it was entitled under the collective agreement – for a substantial period of time. [18] The cases cited by the Employer are distinguishable on this basis. In Re Triangle, supra, the Union changed its dues formula from a flat rate to a formula which required a calculation by the employer. The employer refused to do the calculation and the matter was grieved. The board of arbitration determined that the employer violated the collective agreement and ordered the company to “deduct dues from the employees according to the new standard provided for in the union constitution.” It rejected, however, the Union’s claim for a monetary award for the company’s breach up to that point. It determined that such an award would amount to “punitive damages [which] are out of place in contract actions and that the purpose of awards of compensation is, as far as is possible, to place the parties in the same position they would have been in if the contract had been adhered to.” Instead, the board ordered “that the company shall deduct from the pay of each employee retroactively to June, 1969, union dues as calculated according to the formula to be established as stated above.” [19] Similar remedies were ordered in Re Northwestern General Hospital, supra, where the hospital was ordered to reinstate the grievors to their positions prior to a purported layoff, and to deduct dues for the relevant period and remit them to the union. In Re Canadian Appliance Manufacturing Company Ltd., supra at par. 20, the arbitrator determined that the company may have paid the employees their wages directly without deducting union dues, and in those circumstances, the company did not have to pay twice. Instead, the company was “entitled to indemnify itself with respect to the payment of dues by deducting an equivalent amount from the wages of the employees concerned.” In Re Central Web Offset Ltd., supra, the board of arbitration ordered the employer to pay the employees as if their employment had been continued, and ordered the employer to withhold from their compensation payments the amount equivalent to regular monthly dues, at the Union’s election. [20] A somewhat different approach was taken in Re Canada Post Corporation, supra, in regard to employees who had left the employ of the employer. In that case, at issue was the employer’s failure to deduct union dues for the month in which the employee left the bargaining unit. The employees had been paid wages for the month, but no deduction for union dues had been made. The parties did not dispute that the dues should have been paid. The dispute centred on who was - 6 - liable – the employee or the employer. The arbitrator made a number of points which have applicability to this situation, at par. 11: It is a universally accepted premise of collective agreement administration that a party that has failed to fulfill its obligations under the collective agreement, whether by inadvertence or otherwise, is required to make the aggrieved party whole. I do not see why the concept of liability for failure to perform should not apply. The corporation agreed to make the required collections, it failed to do so (through no fault of the union) and the circumstances are such that the method of collecting arrears contained in the agreement does not apply. The union has been damaged to the extent of the lost dues and is entitled to be compensated accordingly. The arbitrator, however, was “mindful that the overriding purpose of remedial intervention is to compensate the aggrieved party as distinct from penalizing the offending party” and that the dues in arrears were owed by the employee and “would have been paid by the employee if he/she had remained in the bargaining unit.” The arbitrator determined at par. 13 that “in the circumstances of an inadvertent failure to collect the corporation is entitled to a fair and reasonable period within which to secure payment from any employee who has left the bargaining unit without having his/her last month’s dues deducted.” If, however, after six months “the corporation is unable to collect the arrears it will be required to compensate the union in that amount.” [21] It is significant that in Re Canada Post, the employees had been paid wages for their work, and the employer failed to make the required deductions for union dues. The Corporation was therefore given time to seek payment from the employees for the dues which should have been deducted. However, if that did not happen, the employer was required to compensate the Union directly. [22] Although there is some attraction to adopting that approach here, I conclude that it is not an appropriate remedy in this case. Imposing a requirement that the Employer first attempt to seek payment of the dues from Ms. Haggith (who left the Ministry a number of years ago), or the other approximately 700 Court Reporters (some of whom have since retired, left or been reassigned), before imposing liability on the Employer would create a substantial administrative burden and potentially lead to significant disputes between the parties. It would also further delay the matter. Unlike the situation in Re Canada Post, supra, which involved “an inadvertent failure to collect” the dues owed, in this case there was no “inadvertence” to the Employer’s actions. But for the Employer’s continuing to treat the Court Reporters as independent contractors, the Union would have been in receipt of union dues a long time ago, and the difficult situation of tracking down employees and trying to obtain past union dues that the Union would now face would not have arisen. [23] Further, unlike the situation in Re Triangle Conduit & Cable Canada (1968) Ltd., Re Central Web Offset Ltd., Re Canadian Appliance Manufacturing Company Ltd., or Re Canada Post, supra, the employees here were not paid wages for their transcript work, nor are they currently, from which the dues could be retroactively deducted. Consequently, the “circumstances are such that the method of collecting arrears…does not apply.” The “method” refers to dues being deducted from the wages paid to employees who remain in the unit. The problem with that, in this case, is that the employees have never been paid wages for transcript work – in the past or currently. Nor is there any back pay owed to Ms. Haggith, from which the - 7 - dues may be deducted. That is, in large part, because of the income they received for producing transcripts for private litigants, not the Ministry. They are already paying union dues on the amounts they earn for taking the transcript. They cannot be required to also pay dues for their transcript work, for which they are not paid wages by the Employer. That is why this situation is far more parallel to the contracting-out cases cited by the Union. [24] The Employer has treated the Court Reporters as independent contractors for their work in preparing transcripts. That decision has led to the fact that no deductions for union dues have been made. The responsibility for this lies solely with the Employer. As stated in Re Canada Post Corporation, supra at par. 11: “The Corporation agreed to make the required collections, it failed to do so (through no fault of the union) and the circumstances are such that the method of collecting arrears…does not apply. The union has been damaged to the extent of the lost dues and it is entitled to be compensated accordingly.” [25] There is no doubt that the dues owed will constitute a substantial amount, given the extent and duration of the Employer’s breach. That does not, however, make it a “punitive” remedy. On the contrary, the Employer breached its obligation in regard to union dues under the collective agreement and “is required to make the aggrieved party whole.” On the facts of this case, that means that the Employer is responsible for the lost union dues, plus interest. Interest is essential to make the Union “whole” because of the long delay in its receipt of any dues in regard to transcript work. 3. Pension [26] The parties did not address the pension issue in the earlier proceedings, but the issue has been squarely raised now. [27] The Union argues that the basic principle that Ms. Haggith should be placed in the position she would be in “but for” the Employer’s breach must include pension contributions. The parties agree that wages are pensionable, and are based on a percentage contribution made by the member and the Employer into the pension plan. The Union submits that had the Employer followed the collective agreement and paid wages for transcript work, it would have made pension contributions on behalf of Ms. Haggith. [28] The Union submits that there are several potential approaches to restoring Ms. Haggith’s pension rights. The first is to require the Employer to pay the initial value of the contributions it should have paid – in 2004, 2005, 2006, 2007, 2008 and 2009. The second is to recognize that money contributed in 2004 as well as in subsequent years would now be worth more, and to require the Employer to pay that additional amount. The Union submits that the first approach (actual contribution only) fails to account for the lost value of the Employer’s breach (i.e., the present value of the contribution made in 2004). It asserts that the present value is required if Ms. Haggith is to be made “whole” and that the Employer should be responsible for the full amount of any buyback or retroactive opt-in allowed by the Ontario Pension Trust (OPT). [29] The Union contends that the Employer bears sole responsibility for the fact that pension contributions were not made in regard to Ms. Haggith’s transcript work – that she cannot be considered responsible for this outcome. Consequently, it asserts that Ms. Haggith should not be - 8 - “on the hook” for any of the required payments – either the employee’s share or the Employer’s – because the Employer alone created this predicament. [30] Alternatively, the Union submits that the “most” that Ms. Haggith should be responsible for is the initial contribution she would have made had the Employer applied the collective agreement. It strongly contends, however, that Ms. Haggith is not responsible for the difference between that amount and the present value had that contribution to the pension plan been made in a timely fashion. [31] In support of its position, the Union cites to Re Corporation of the City of Toronto and C.U.P.E., Local 79 (1985), 18 L.A.C. (3d) 187 (Christie), in which the board of arbitration reinstated an employee who had been discharged seven years before and ordered him to be “compensated with interest, for all loss of pay and fringe benefits.” The board continued at par. 42: “As far as possible his pension position is to be restored to that which it would have been had he not been discharged…. His pension position in respect of the civic pension plan and the Canada Pension Plan is to be restored as fully as possible to that which it would have been he not been discharged, and to the extent that it is impossible he is to be compensated by additional money payment.” [32] Finally, the Union submits that mitigation applies to wages but not pension loss. It argues that Ms. Haggith should not lose years of pension contributions – and hence an enhanced retirement benefit - because she was able otherwise to mitigate her financial losses. [33] The Employer submits that this issue was essentially dealt with in the last decision when I rejected the Employer’s contention that I should consider the income tax savings that Ms. Haggith enjoyed by virtue of her self-employment status under the Income Tax Act and that a “net/net” comparison should be made. Specifically, the Employer argued that Ms. Haggith’s net income from transcript production as an independent contractor exceeded what her net income would have been under the collective agreement, less required deductions (including pension contributions). The implication of that ruling, it suggests, is that in determining the appropriate remedy one deals with gross numbers, not deductions or net numbers. It submits that “this ship has sailed” and the issue has been decided. To rule in the Union’s favour, it suggests, would be legally inconsistent and punitive. [34] In the alternative, the Employer argues that only the actual contributions that should have been made by the Employer are payable, not the present value of those contributions. If present value is permitted, it asserts that the Employer should be able to argue that the “present value” of Ms. Haggith’s transcript earnings should be considered. In addition, it would also argue that Ms. Haggith could have invested her transcript money with considerable success, and the fact that she did not do so should not be placed at the Employer’s door. If that type of argument and evidence is not permitted, the Employer argues that Ms. Haggith will be made more than “whole.” [35] The Employer also submits that the duty to mitigate applies to all financial losses, including pensions. It argues that there is no exception for pension contributions. Pension contributions are a monetary benefit which differs from wages only in regard to the time it is paid out. In the Employer’s view, Ms. Haggith has fully mitigated any potential pension loss. - 9 - [36] In support, the Employer cites to Re Toronto Hospital and Ontario Nurses’ Association [1992] O.L.A.A. No. 1195 (Watters); Re Devaney and ZRV Holdings Ltd. 2012 HRTO 1590 (Eyolfson); Re Soar and Harvard Communications [1993] C.L.A.D. No. 974 (Love); Re McKilligan v. Pacific Vocational Institute [1979] B.C.J. No. 1229 (Verchere); Re Peet v. Babcock & Wilcox Industrials Ltd. (2001), 54 O.R. (3d) 321 (Ont. C.A.); Re Panimondo v. Shorewood Packaging Corp. [2009] O.J. No. 1519 (Ont. Sup. Ct). [37] Having carefully considered the parties’ submissions, I conclude that Ms. Haggith is required to pay for her share of any pension contributions that were not paid during the relevant time, and that the Employer must pay its contributions, plus any interest penalty imposed by OPT in respect to her contribution as well as on its own delayed contributions. In my view, this is required to ensure a “make whole” remedy in regard to lost pension benefits. [38] In so ruling, I do not accept the Employer’s contention that this issue was addressed in the earlier decision. In rejecting the Employer’s position that Ms. Haggith’s net income as an independent contractor should be compared to her net income had she been paid a salary for her transcript work, I concluded, at pars. 140 and 141, that the Employer should not be permitted to benefit from its continuing breach of the collective agreement. This was true even though it might result in a situation in which she was “better off” than if the contractual violation had not occurred. This ruling did not address any pension issues. [39] I also do not accept that lost pension is the same as lost wages – that it is just a question of when the money is paid out, and is subject to mitigation. Although the decision in Re Soar, supra at par. 10, states that “amounts which would have been contributed to his pension fund during the notice period…. would also be subject to mitigation as outlined above”, there was no authority or reasoning provided. Accordingly, I do not find it to be persuasive. The decision in Re Delaney, supra at par. 220-221, does not deal specifically with pension benefits. It refers to “benefits” but makes no mention of pension benefits. [40] Re Peet, supra, does deal with the issue of pension loss, but I read it to stand for the proposition that pension loss must be considered separately from wage loss. In that case, an employee with thirty-three years of service had been terminated without cause, and the Ontario Court of Appeal determined that 18 months of notice was appropriate. When the employee had been terminated, however, he was eligible for and elected to take early retirement. He claimed damages for loss of pension benefits over the notice period, and sought the difference in the pension benefits he received under early retirement versus what his benefits would have been if he retired at the end of the notice period. [41] The Court of Appeal, at pars. 29-30, endorsed the “present value” approach for calculating pension loss. It stated: The formula for calculating pension loss that has been recognized by authority is the commuted value methodology. This method determines the present value of the difference between the value of the pension at the time of termination and the value at the time when the employee could have been lawfully terminated. [citations omitted] Accordingly, the first step in employing this methodology requires a determination of the commuted value of the pension at the time of termination and at the end of the - 10 - reasonable notice period. The present value of the difference between these two figures represents the pension loss suffered. Once the pension loss has been calculated using this methodology, it would be inappropriate to then deduct pension payments from lost salary by taking into account pension payments received during the notice period. However, this does not lead to the conclusion that pension payments made during the notice period should not initially be taken into account when determining the commuted value of the pension at the time of termination. The Court continued, at par. 31, that “it would be wrong to disregard pension payments made during the notice period that may serve to alter the net difference.” This was “especially true if the earlier commencement of pension payments serves to put the employee in an overall better position than had the pension commenced after the notice period, effectively eliminating any pension loss.” [42] What the Court appears to be saying is that pension loss is separate from wage loss, and that “it would be inappropriate to then deduct pension payments from lost salary by taking into account pension payments received during the notice period.” Yet the pension payments actually received as a result of taking early retirement were relevant to the calculation of whether a pension loss was incurred since “the earlier commencement of pension payments [may] serve[] to put the employee in an overall better position than had the pension commenced after the notice period….” [43] Consequently, under this reasoning, the fact that Ms. Haggith may have done better monetarily as an independent contractor than she would have if wages had been paid for her transcript production, does not eliminate her claim for pension loss. They are separate heads of potential damages. [44] In terms of the appropriate remedy, the goal is to try to place the Court Reporters in the position that they would have been in had the collective agreement been applied. In determining that question, the most useful case cited is Re Toronto Hospital, supra. In that case, the employer failed to enroll the grievor in the pension plan, HOOPP, when he became eligible on April 9, 1987. Despite his complaints, he was not enrolled until shortly after he filed a grievance, in August 1989, and contributions by the employer and employee began that month. At the arbitration, the union asserted that the employer should pay both the employer and employee contributions, plus interest imposed by HOOPP. The employer disputed that, contending that the employee should have been investing the extra money. The board of arbitration, chaired by Arbitrator Watters, determined that the Employer did not have to pay the grievor’s pension contributions to HOOPP because he had received an unreduced paycheque, which included money that would have otherwise been deducted. The board determined at par. 19, that “the grievor would receive a windfall were he to receive this money a second time by virtue of our award.” Although the board was “sympathetic to the grievor now having to make a large lump sum payment to HOOPP”, it determined that the collective agreement “clearly contemplated that the employee and the Employer will contribute at the required level.” [45] The board, however, ordered the Employer to pay interest to HOOPP on the grievor’s contributions as well as on its own contributions. It found at par. 20 that “any interest penalty imposed in respect of the grievor’s contribution should be paid by the Employer” because “[t]hat - 11 - obligation flows directly from its failure to make the contributions in a timely manner.” The same was true in terms of the employer’s contributions as well. [46] The same considerations apply here. To require the Employer to pay only its own missed contributions would not make Ms. Haggith “whole.” This is because of the time-value of money - contributions made into the pension plan in 2006 are worth more in terms of pension than the same contribution made in 2013. Assuming OPT allows Ms. Haggith to “buy back” her pension, there will be an interest penalty. The interest penalty should be borne by the Employer because it flows directly from its failure to apply the collective agreement and make the contributions in a timely manner. [47] In Re McKilligan, supra, the British Columbia Supreme Court also endorsed the “present value” approach to pensions. In that case, the Court had determined that the plaintiff had been wrongfully dismissed from his employment and was entitled to one year’s notice. A dispute arose in regard to benefits during the notice period, including two pension questions. The Court was asked to determine whether the plaintiff’s loss due to the defendant’s failure to pay its required contribution to his college pension plan should be the difference between the “present value” of his pension between the date he was terminated and the date he should have been terminated, after notice, or the sum of the contributions which the defendant would have had to make during the year of notice. The Court determined, at par. 5: “[T]he plaintiff should have the ‘present value’ difference in each case because the principle to be applied in such a case as this is that the damages awarded should compensate the plaintiff for his loss and put him in the position he would have been in had proper notice been given.” [48] Here, the way to ensure that the “present value” of the missed payment contributions is restored is to require the employer to pay any interest penalty imposed by OPT. [49] In terms of Ms. Haggith’s share, I conclude that she is responsible for her share of the pension contribution. As in Re Toronto Hospital, supra, this may be a quite sizable sum, but both the employee and employer are responsible for pension contributions – not just the employer. As the board there concluded at par. 19: “The order sought by the Union would put the entire responsibility on the Employer for the period in issue. We are not satisfied that the basis exists for such a remedy.” The same is true here. Conclusion: 1. Although I conclude that expenses incurred by Ms. Haggith in regard to transcript production should be factored into what is owed, the analysis must include all relevant years and not a year-by-year comparison. 2. The Employer is required to pay to the Union dues owed to OPSEU for the bargaining unit work performed by Court Reporters in regard to transcript production, plus interest. As in Re British Columbia Hydro and Power Authority, supra at par. 70, the employer is to “pay to the union an amount equivalent to the union dues that would have been remitted by the persons who performed the work had they been employed as employees under the collective agreement”, plus interest. In this case, the Employer has treated the Court Reporters as independent contractors, rather than employees under the collective - 12 - agreement, for the production of transcripts and the appropriate remedy is the remedy applied in contracting-out situations. 3. In terms of pension, Ms. Haggith is responsible for her missed pension contributions, but the Employer is responsible for its contribution share plus any interest penalty assessed by OPT on both the individual’s share as well as its own. This is required to make Ms. Haggith “whole” in terms of pension. 4. I shall remain seized. Dated at Toronto, Ontario this 23rd day of October 2013. Randi H. Abramsky, Vice-Chair