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054'7/91
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Blomme)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Housing)
Employer
BEFORE M. Gorsky Vice-Chairperson
I. Thomson Member
D. Daugharty Member
FOR THE I. Anderson
GRIEVOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE P. Young
RESPONDENT Counsel
Winkler, Filion and Wakely
Barristers & Solicitors
~E~RIN~ January'29, 1993
1
THIRD INTERIM DECISION
This is the third interim decision in this matter involving
the right of the Union to amend its statement filed pursuant to the
memorandum dated September 16, 1988, from Owen B. Shime, Q.C., the
Chair of the Board, addressed to all vice-chairpersons and all
members of the Grievance Settlement Board on the subject of
classification cases, the relevant portions of which were set out
in the first interim decision, dated February 20, 1992, at pp.4-5.
The purpose of the memorandum was to have the parties file
statements of their factual positions with respect to the "duties
and responsibilities of employees who are claiming a classification
change" with a view to shortening the lamentable length of time
taken up in the hearing of classification cases by the Board by
having the Union, in the first instance, indicate the duties and
responsibilities performed ~by a grievor along with the duties and
responsibilities which a grievor alleges have placed him/her in a
higher classification, in addition to filing the position
specification, the Employer's statement is to be in the form of a
reply to the Union's statement indicating which of the duties and
responsibilities of the 'grievor that the Employer was admitting and
those that it disagreed with. The memorandum also urged vice-
chairpersons to endeavor to have the parties proceed on the basis
of agreed statements of fact, where statements with respect to
duties and responsibilities had been filed.
2
The history of classification cases before the Board, absent
some form of definition of the factual issues as envisaged in the
memorandum, was that inordinate amounts of time were often spent in
proving facts which were really not in dispute and in sometimes
unfairly leaving the parties in the dark as to which facts were in
dispute so that the preparation of their cases was rendered more
difficult and less efficient. Th~ parties recognized that this
situation was intolerable and the memorandum of the Chair
represented the beginnings of what was expected to be a new era for
the hearing of classification cases. It is significant that the
memorandum envisaged the obtaining of an agreed statement of facts
so that the evidence might be restricted to the real factual
differences between the parties.
In its first interim decision, this panel of the Board was
concerned that if the position of the Union was afforded primacy,
and the statements contained in a document filed ~y a party (in
this case the Union) pursuant to the memorandum could be withdrawn
at will, then the memorandum would be deprived of the necessary
integrity to give meaning to the evident purpose of the parties,
whose support was noted by the Chair. An absolute right on the
part of the Union to amend its statement without cogent reasons,
especially after the Employer had filed its statement, would
seriously undermine the purpose of having statements filed.
If the Board had accepted the initial position of counsel for
3
the Employer: that the Union's statement, once made, could not be
amended for any reason, the result of such a rigid interpretation
would also be inconsistent with the purpose of the memorandum and
would be equally unfair.
The problem for the Board was to create a proper balance
between maintaining the integrity of a statement made pursuant to
the memorandum, while, at the same time, making allowance for
certain circumstances where fairness required that an amendment be
permitted. The Board noted that neither the position of the Union
that its statement could be amended without any explanation, and
the position of the Employer that, once made, the statement could
not be amended, were too extreme and were prone to creating
unfairness. The Board was satisfied that some middle ground had to
be recognized and endeavoured to define that middle §round.
Since the Chair's memorandum of September, 16, 1988, the
parties to classification disputes bare usually endeavoured to
comply with its provisions. Where parties have come before the
Board in classification cases without first filing the factual
statements contemplated in the memorandum, some panels of the Board
have requested that they first file the statements before
proceeding further, relying on the Board's right to regulate
procedure in the matters before it. Given the generally good
experience in classification cases where the memorandum has been
complied with; it is to be anticipated that panels of the Board
4
will, in most cases, continue to require the filing of statements
before evidence is called. We are confident that the parties have
come to recognize the generally salutary effect that has resulted
from their following the requirements of the Chair's memorandum and
that there will be no attempt to circumvent the requirements merely
because, in some circumstances, a party will be held to the
contents of a statement.
Although the practice to be followed, as set-out in the
memorandum of the Chair, dated September 16, 1988, was said to be
"experimental," by August 2, 1991, when the statement of the Union,
it is safe to say that the practice was no longer regarded as being
experimental.
In its first interim decision in this case, the. Board
concluded that the Union could make an amendment that amounted to
a withdrawal of an admission if its request was supported by
material ~howing that the admission was made inadvertently or its
solicitor had been wrongfully instructed. At p. 14 of the first
interim decision the Board held that:
Before ruling on the right of the Union to amend
paragraph 5 of its statement it would be necessary for us
to hear evidence so as to be able to decide whether the
admission was mad~ inadvertently or that the then
solicitor for the Union was wrongfully instructed. Even
if it is established that the admission was made
inadvertently or that the solicitor was wrongfully
instructed, the Employer should have an opportunity of
adducing evidence to show that an injustice has been done
to it which cannot be overcome by granting a suitable
delay in order for it to prepare its case based on the
amended statement.
Further, at pp.14-15 of the first interim decision, the Board
stated:
The Union will have to decide whether it wishes to call
evidence to establish that the admission in paragraph 5
was made inadvertently or that its then solicitor was
wrongfully instructed. We would expect to be notified as
to the intention of the Union in this regard within two
weeks from the date hereof in order that we can notify
the Registrar as to the status of this matter.
On March 6, 1992, counsel for the Union wrote to the Registrar
requesting that the Board reconvene for the purpose of hearing
evidence as to whether "the admission was made inadvertently or
that its solicitor had been wrongfully instructed."
When the hearing ~esumed on June 4, 1992, in addition to other
preliminary submissions noted in the second interim decision, dated
August 31, 1992, counsel for the Union took the position that the
Union was not limited to the argument outlined in Philmor
Develgpments (Richmond Hill) Ltd. v. steinberg (1986), 4 W.D.C.P.
91 (Ont. Master), whieh was referred to at p. 13 of the first
interim decision, which case, dealing with the Ontario Rules of
Civil Procedure, held that an admission made in a pleading could be
withdrawn if it had been made inadvertently or where the solicitor
was wrongfully instructed. The Board, in the first interim
decision, noted that it did not regard the Philmor case as bein9
binding upon it, but found its treatment of the subject of
amendments amounting to withdrawals of admissions to be helpful.
6
The Board, as has already been noted, had no intention of
enunciating a one-size-fits-all rule relating to when an amendment
can be made to a statement filed pursuant to the Chair's
memorandum. If another acceptable basis for being permitted to
withdraw an admission had been made to us, we would have considered
it. We were endeavoring to arrive at a rule that would be fair to
all parties, while, at the same time, preserving the integrity of
the procedure provided for in the memorandum.
The difficulties that had attended the hearing that ]ed to the
first interim decision again arose "immediately upon counsel for
the Union commencing to examine the Grievor pursuant [to it]."
(See p. 5 of the second interim decision.) Counsel for the
Employer raised an objection to the line of questioning being
pursued by counsel for the Union "based on the fact that the
questions were said to go beyond those that the interim award would
permit." (ibid.) In response to the objection, counsel for the
Union "advised the Board that it was not his intention to show that
the admission was inadvertent but that the solicitor for the Union
had been wrongfully instructed. It was with respect to what
situations might be encompassed under 'wrongfully instructed' that
a difference arose between the parties." (ibid.)
At p.10 of the second interim decision, the Board noted:
In referring to the second test in our Interim Decision,
we did not intend to enunciate guidelines more
restrictive than those developed in the courts to deal
with an analogous situation. We are therefore, prepared
7
to hear evidence intended to furnish 'a reasonable
explanation for the change of position' as it bears on
that test.
The second test that we referred to was the one allowing the
statement to be withdrawn if it "was made inadvertently or the
solicitor was wrongfully instructed." As we have also noted,
counsel for the Union indicated that he was not relying on the
statement having been made inadvertently but on the latter part of
the test relating to its then counsel (M. Wright) having been
wrongfully instructed.
'We also noted, at p.10 of the second interim decision:
There was some indication from counsel for the Union that
evidence would be called from the Grievor dealing with his
understanding of what he believed he was doing when he
instructed counsel.
We stated (ibid.):
We are prepared to hear this evidence and to then rule as to
whether it represents a "reasonable explanation for the change
of position" bearing in mind that we are not concerned with
the truth of the fact admitted.
At p.11 of the second interim decision, we stated:
At the resumption of the hearing, in addition to hearing
evidence with respect to the Union's request to withdraw
the admissions contained in paragraph 5 of its statement
and to further amend that paragraph, we will also have to
deal with the Union's request to amend paragraph 2, as
set out at page 2 of the first Interim Decision.
EVIDENCE OF THE GRIEVOR
The Grievor t~stified that:
8
1. He has been a Systems Officer 2 since April of 1989 and, as
such, works with computer hardware and software, does some
programming, provides some support for users, and gives some
training.
2. He performs no personnel functions, and, with the exception of
his involvement in the writing of his position description,
has never prepared another one, nor is he familiar with the
preparation or interpretation of class standards.
3. Tke letters L,A,N. stand for Local Area Network. A LAN
represents a network of personal computers or workstations
within a branch or specific work area, usually connected by
co-axial cable linked to a centra~ £ile server, which is the
controlling computer containing a large data storage area.
4. Different LANs can be connected to create a wider area
network, and he was involved in connecting groups of LANs.
5. His duties with the LANs involved working with various kinds
of hardware and the installation of pcs, and, in some cases,
involved repair work.
6. He installed software so that all users connected with the LAN
system would have access to the software they required. He
demoastrated for them how to use the available software. He
9
performed some programming with respect to the system and did
sufficient training so that persons who had to gain access to
and use the system ~ould do so.
7. He referred to para. 5 of the Union's statement, found at Tab
3 of the Employer's book of documents, which reads as follows:
In addition to his above duties as a programmer, the
grievor also works as an administrative systems analyst
managing the operation of the Local Area Network {LAN).
As such, he performs the duties and possesses the skills
and knowledge of the alternative position also classified
as Systems Officer 2 and described by paragraphs 5
through B on page 2 of the class standard. However,
contrary to paragraph 6, the grievor does not perform his
LAN administrator duties under the general supervision of
a more senior analyst or administrative systems manager.
Rather he answers to the Director, Mr. Stonehouse.
8. Mr. M. Wright, the then solicitor for the Union, had prepared
the statement on behalf of the Union after having met with the
Grievor on at least one occasion. The Grievor assisted Mr.
Wright by explaining to him the facts as he understood them.
He believed that he was instructing Mr. Wright with respect to
a document that was being prepared to assist in the mediation
procedures relating to his grievance. It was his view that
the focus of the document was with respect to the Energy
Management Information System ("EMIS"), identified in para.3
of the Union's statement as being "a large computer system
covering all buildings and houses in the Ontario Housing
Corporation portfolio." He believed that there was a conflict
10
between the position of the Union and the Employer with
respect to the extent Of his involvement in EMIS, and that
there was not expected to be, nor was there, any discussion
concerning his duties with respect to the LAN during the
course of mediation.
9. In response to a question concerning para.5 of the Union's
statement as to whether, prior to the Union's statement being
prepared, he had reviewed the Systems Officer 2 class standard
with Mr. Wright and, in particular, that portion dealing with
the "alternative position also classified as Systems Officer
2 and described by paras. 5 through 8 of the class standard,"
he replied that he had done so briefly, concentrating on the
area dealing with programming, which he said was done for the
purpose of differentiating it from other areas of his work on
the LAN.
10. From his brief reading of the class standard, he concluded
that he was appropriately c~assified in terms of his LAN
duties and that his being improperly classified was as a
result of other duties and responsibilities not captured in
the class standard, which were elaborated in the Union's
statement.
In cross-examination the Grievor gave the following evidence:
11
1. He met with Mr. Wright on at least one occasion in order to
furnish him with information that could be used in the
preparation of the 'statement, and, in addition, reviewed the
statement with Mr. Wright prior to its being released.
2. He repeated his assertion made in-chief that he believed Mr.
Wright had told him that the purpose of preparing the
statement related to its being used in the mediation process
prior to arbitration. He denied that Mr. Wright had told him
that the purpose of the statement was to set out his duties
and responsibilities and those duties and responsibilities
which he regarded as placing him in a higher classification.
However, when pressed further as to whether he had been
actually told that the statement was being prepared for use in
the mediation process, he responded that he could not recall
whether this was the case. He added that he understood that
i~ was intended to serve some purpose during that part of the
process.
3. He spoke to Mr, Wright about his LAN functions. In referring
to the second sentence of para.5 of the Union's statement: "As
such he performs the duties and possesses the skills and
knowledge of the alternative position also classified as
~Systems Officer 2 and described by paragraphs 5 through 8 on
page 2 of the class standard," he said that this statement was
intended, to signify that certain duties, skills and knowledge
12
involved in the LAN fell within the Systems Officer 2
classification. As he put it: "This was my assumption when
the process began.''~ He then stated that~ the third paragraph
of the Union's statement addressed certain duties and
responsibilities that he considered did not fit into the
Systems Officer 2 elassification~
4. When asked what facts had changed between the time when the
Union's statement was prepared and the date when the request
for the amendment to para. 5 of the Union's statement was
made, he replied that while his original assumption'was that
he was properly classified insofar as his LAN administrative
duties were concerned, this assumption changed, and he
concluded that he could rely on his administrative systems
analyst management duties in the operation of LAN as well as
his EMIS responsibilities to support an argument that he was
improperly classified. His changed assumptions resulted from
a suggestion made to him after the preparation of the Union's
statement. He added that he had a limited understanding of
how he should present his case and that his perceptions
changed as a result of speaking to others after Mr. Wright
ceased to act as Union counsel. In particular, he referred to
his discussions with current counsel who took over from Mr.
Wright.
The Employer called no evidence on the preliminary issue.
13
ARGUMENT OF THE UNION
Counsel for the Union made the following submissions in
argument:
That the statement in para. 5 of the Union's statement, that
it now wishes to retract, does not represent a statement of
fact but is a conclusion of law. The challenged admission
states that the duties performed by the Grievor and the skills
and knowledge that he possesses are the same as the
"alternative position also classified as Systems Officer 2 and
described by paragraphs 5 through 8 on p. 2 of the class
standard." Counsel submitted that this alleged admission
purports to usurp the responsibility of the Board to make this
determination: that is, whether the duties and
responsibilities performed by the Grievor fail within a
particular classification - in this case, Systems Officer 2.
It was submitted that it is the Board and not the Union that
has the sole jurisdiction to make the proper determination of
law arising out of the facts which may be adduced or agreed
to.
2. It was argued that the duties actually performed by the
Grievor in connection with the LAN involved the operation of
a computer system. We were asked to examine para. 5 of the
Systems.Officer 2 class standard which states: "This class
14
also covers positions of Administrative Systems Analysts who
analyze, design and implement systems and procedures to
improve office or administrative productivity." It was
submitted that the "admission" of the Grievor in para. 5 of
the Union's statement did not amoUnt to an admission that the
Grievor's functions in connection with the LAN fell within the
above quoted language, and in any event, it was the
responsibility of the Board to determine whether this was the
case.
3. Counsel argued that, as a conclusion of law, the alleged
"admission" is incorrect as the paragraphs of the Systems
Officer 2 class standard referred to in para. 5 of the Union's
statement refer to administrative systems, which were said to
exclude the LAN system, which is a computer system.
4. Referring to the instructions allegedly given to Mr. Wright by
the Grievor, counsel for the Union made the following
submissions: '
a) The Grievor testified that he had no experience in
personnel matters and was not in a position to render an
expert opinion to counsel concerning whether his
functions fell within paragraphs 5 to 8 both inclusive of
the Systems Officer 2 class standard.
15
b) The Grievor did not possess the necessary knowledge to
assess whether his duties fell within the paragraphs of
the class standard referred to, and, in any event, this
question was within the exclusive jurisdiction of the
Board.
c) All the Grievor could tell this Board was what his duties
and responsibilities were.
d) That the Grievor had no idea as to the real purpose of
the statement when he instructed Mr. Wright. He
testified that he understood that the statement was to be
used for the purpose of the mediation hearing and was a
position that the Union might attempt to negotiate from.
As such, he understood that should a settlement be
impossible, then positions taken in the statement could
be changed.
e) That the Grievor, and the Grievor alone, gave
instructions to Mr, Wright and then approved the document
(being the Union's statement). That the Grievor only
had a limited understanding as to how he should "plead
his case."
5. Counsel referred to the case of' Allorandex Property
Management Corp. v. Norgaard Drywall CQDstructiQB ~td.
16
(1992), 6 C.P.C. (3d) 300 (Alta. Q,B.), being a decision
of a Master In Chambers. In that case, the defendant
company made an application to amend its statement of
defence by deleting two paragraphs from its original
statement of defence, while substituting three new ones.
The plaintiff submitted that the defendant should not be
permitted to amend its statement of defence because the
proposed amendment would amount to the withdrawal of an
admission that a valid contract for the sale and purchase
of certain property existed between the parties. In the
action, the plaintiff sought a declaration by the court
that a valid agreement existed between the parties and
requested an order for specific performance. The
amendment proposed by the defendant would enable it to
resile from the admission that an agreement existed and
would permit it to argue at trial that any agreement
alleged by the plaintiff is void for uncertainty.
6. In the Al~orande~ case, Master Quinn stated at pp.301-
303:
The question of whether an admission made in a pleading
(called a judicial admission) can be withdrawn was
addressed by McFadyen D.C.J. in Western Mack T~uck
(EdmQnton) Ltd. v. ~¢ikel (1976), 1 Alta. L.R. (2d) 184
(Dist. Ct.).
At p. 186, McFadyen D.C.J. said:
"Admissions found in pleadings of a party to an
action may be withdrawn with leave of the court.
Deave of the court will be granted if the party
17
seeking to withdraw the admission establishes that
the admission was made inadvertently. The party
must also establish that the admission was false
or, alternatively, in certain limited
circumstances, that there is an issue which ought
to be resolved by trial. If the court is satisfied
that there will be no prejudice to the party which
cannot be compensated by costs, leave to withdraw
an admission should be granted."
and [sic) at p.188 she said:
"The defendant has not provided any evidence to
show inadvertence, or that the admission contained
facts which are not true. There is no evidence
that circumstances exist making it impossible for
the defendant to prove that the admission was false
or that an issue exists between the parties which
in the interests of justice should be resolved by a
trial."
Accordingly, she dismissed the defendant's
application to withdraw his statement of defence.
In the present case, the defendant's application is
supported by the affidavit of J.A. Clifford Kemp, a
member of the law firm now representing the defendant.
The statement of defence was filed by the former
solicitor for the defendant.
Paragraph 6 of Mr. Kemp's affidavit is as follows:
"6. As a result of reviewing the file and the
circumstances of this case with the Defendant, I
believe that the Statement of Defence needs to be
amended because it does not adequately address the
Defendant's position in that:
(a) It was prepared by the Defendant's previous
lawyer, without being reviewed by the Defendant,
(b) Paragraphs 3 and 4 were included inadvertently
or without proper forethought,
(c) It does not deal with or plead the issue and
defence of lack of certainty of terms of the
impugned agreement and whether it is enforceable
according to its terms, or at all,
(d) It does not deal with or plead the alternative
issue that if the impugned agreement is enforceable
then the Plaintiff breached the agreement by
refusing 'to execute the mortgage documentation
prepared by the Defendant's lawyer as contemplated
18
by the agreement and the parties,
(e) It does not request relief consequential to
the proper pleading of the Statement of Defence,
and a Counterclaim namely that because of the
Plaintiff's repudiation of the impugned agreement,
as described in subparagraph (d) above, the
Defendant seeks an Order determining the agreement,
directing the forfeiture of the deposit, and
awarding damages 'to the Defendant."
Mr. Kemp was not cross-examined on his affidavit,
and what he alleges should be accepted as true for the
purpose of the present application.
When one considers the facts of this case and the
sketchy treatment given in the interim agreement to the
matter of the security to be held by the vendor, it is
not difficult to imagine there exists an arguable case
that the agreement ought to be held void for uncertainty.
It is not difficult to accept the allegation of the
defendant that the admission of the existence of a
contract between the parties Nas made inadvertently and
without proper forethought. The said admission is more
an admission of a conclusion of law than an admission of
fact.
In my opinion, this is one of the "limited
circumstances" of the type contemplated by McFadyen
D.C.J. in the passage quoted above.
Accordingly, I would allow the defendant to make the
amendment it seeks to make in its statement of defense
ARGUMENT FOR THE EMPLOYER
Counsel for the Employer made the following submissions in
argument:
1. That the issue before the Board was whether a reasonable
explanation has been forthcoming from the Union that would
justify the Board in granting the amendment requested.
2. The Union, on behalf of the Grievor, set out its position in
19
para. 5 of its statement concerning the functions of the
Grievor with respect to the LAN. It was submitted that this
was not a case where, through inadvertence, the issue with
respect to the LAN had not been addressed.
3. We were asked to look at para. 5 of the Union's statement and
note that in it the Union states that certain duties of the
Grievor fell within that portion of the Systems Officer 2
class standard: those described by paragraphs 5 through 8 on
p.2 of the class standard, and that one of them does not: the
statement that the Grievor performs his LAN administrator
duties under the general supervision of a more senior analyst
or administrative systems manager. The position taken by the
Union was that the Grievor answered to the Director, Mr.
Stonehouse. This was said to be the sole distinguishing
feature between the duties and responsibilities of the Grievor
and those of the other Systems Officers 2 with respect to the
LAN.
4. In addition to the~ Union's position that the Grievor did not
understand the purpose of the statement and was unfamiliar
with specialized questions related to class standards, the
only other explanation given by the Union for the change in
position was that the Grievor, after the filing of the
statement by his then solicitor Mr. Wright, spoke to others,
one of whom appears to be the Union's present solicitor, and
20
was advised that he could make additional arguments. These
arguments, on the evidence, were said to be capable of having
been made at the t~me when the statement was prepared and,
accordingly, the basis for permitting the amendment was not a
reasonable one. It was submitted that in order for there to
be a change in position there would have to have been some
material factual change that the Union could not have
anticipated with reasonable diligence.
5. Counsel referred to the case of Antipas et al. v. Coroneos et
~1. (1988), 26 C,P.C. {2d) 63 (Ont. H.C.J,), where, in
allowing the amendment requested by the defendants, Saunders
J., stated, at p.69:
· .. I accept that if the original claim had exceeded the
policy limits, there would have been no admission. I
consider that when the admission was made, the insurer
was under the misapprehension that it had only to deal
with a claim within the policy limits. It made a
decision in that context not to dispute liability. The
plaintiffs, by increasing their claim, created an
entirely new situation, In such a case it appears to me
to be reasonable for the insurer to reconsider the
admission in the light of all the evidence and to seek to
withdraw it if it believes there is a possibility of no
liability or of contributory negligence.
The unexpected action commenced by Ovadia
exacerbated the situation. However, I do not base my
decision on that circumstance. I consider that the
action of the plaintiffs in increasing their claim is
alone a sufficient justification for the defendant to
reconsider the admission.
6. Counsel argued that, in the case before us, there had been no
change in position, such as existed in the Antipas case, as
would furnish a reasonable explanation that would allow us to
21
permit the Union to amend its statement. Here, at most, the
Grievor obtained new advice as to how he might present his
case based on facts that already existed at the time that the
statement was prepared and filed by the Union and responded to
by the Employer°
7. Counsel also referred to the fact that it was open to the
Union to have called Mr. Wright to testify as to what had
taken place during the meetings with the Grievor prior to the
preparation and filing of the Union's statement and as to the
nature of the instructions given to him. He noted that the
Grievor acknowledged that he did not recall much about what
Mr. Wright had told him concerning the purpose of the
statement and of what was expected from him in the
circumstances. Given the purpose of the Chair's memorandum,
we were asked to draw an adverse inference against the Union
on the basis of its having failed to call Mr. Wright. We were
also asked to draw an inference that' if Mr. Wright had been
called as a witness he would not have said that h~ told the
Grievor that the document'was being prepared as a negotiating
instrument to be used during the course of mediation, and that
he would, as a competent and conscientious counsel, have
explained the purpose of the Union's statement and the role
expected to be played by the Grievor in its preparation. We
were also asked to find, in the absence of other evidence,
that Mr~ Wright, as a conscietious counsel, had explained the
22
meaning of the language of the class standard to the Grievor.
8. In responding to the submission of counsel for the Union that
the evidence demonstrated that the LAN was not an
administrative system, counsel noted that in the second
interim decision, in dealing with the arguments relating to
the request to amend the Union's statement, the Board noted,
at pp. 9-10, that the truth of the statements intended to be
raised at a hearing on the merits was not relevant to the
hearing as to whether a reasonable explanation had been given
for requesting the right to change a position by amending a
statement. Counsel noted that the Board had already held that
the chan~e raised a triable issue, but that still left the
question open as to whether a reasonable excuse for allowing
the amendment had been demonstrated. Counsel noted that the
Union had chosen to proceed on the basis that there had been
an error in instructing counsel and the Union did not argue
that the change was being requested because the statements
contained in its~ statement were included inadvertently or
without forethought.
9. Counsel concluded its argument by noting that it would only be
necessary for it to ~eal with the prejudice suffered by it in
the event that the Board held that a reasonable explanation
had been furnished by the Union and allowed the amendment
request6d by the Union.
23
ARGUMENT IN REPLY OF THE UNION
Counsel for the Union in re~ly, argued:
1. That the Antipa~ case dealt with a situation where the
amendment was permitted because the legal position and not the
underlying facts had changed. The court, at p.69, accepted
the position of counsel for the defendant "that if the
original claim had exceeded the policy limits, there would
have been no admission" and the court Considered that the
admission was made under a "misapprehension that it had only
to deal with a claim within the policy limits." It was
submitted that there was no change in the grounds for the
grievance, the only change was said to be in the legal
position that the Grievor wished to assert at this time, and
that this was as a result of the fact that negotiations to
settle the grievance at the mediation stage were unsuccessful.
Counsel submitted that it was unnecessary for the Union to
show a change in the facts which the Union could not have
known about in advance by exercising reasonable diligence.
2. At the close of his argument in reply, counsel for the Union
stated what he regarded to be the test that we should employ
in assessing the reasonableness of the explanation:
a) that the solicitor had been wrongfully instructed
24
b) that the solicitor had acted inadvertently.
3. In applying the test we were asked to accept the evidence of
the Grievor that he had not been furnished with any specific
details concerning the purpose for which the Employer's
statement was being prepared but that he had the "overall
impression" that it was being prepared for a negotiating
session to be incorporated into the mediation process.
4. in dealing with the submission made by counsel for the
Employer that we ought to draw an adverse inference because
Mr. Wright was not called as a witness, counsel for the Union
submitted that we could only draw an adverse inference from
the fact that Mr. Wright had not been called as a witness by
the Union if the UnioD had been endeavouring to establish that
Mr. Wright had acted inadvertently. It was argued that we
could 'not draw an adverse inference where the Union was
relying on an explanation based on an allegation that Mr.
Wright, acting as solicitor for the Union, had been wrongfully
instructed by the Grievor.
5. Counsel argued that in the ~llorandex ease the request for an
amendment was based on affidavit evidence deposing to the fact
that a paragraph in the statemeat of defense containing an
admission that a valid contract existed had been inserted in
the pleading by the defendant's former solicitor without
25
having been reviewed by the defendant, and that the paragraphs
had been included inadvertently. In the case before us, we
were also asked to note that the "alleged admission" was not
an admission of facts but a statement in the nature of a
conclusion of law and ought not to be treated as a bar to the
amendment of para. 5.
DISCUSSION
1. The Union asks the Board to allow it to delete the second
sentence in para. 5 of its statement, which amounts to an
acknowledgement that the Grievor performs the 'duties and
possesses the skills and knowledge of an alternative position
in the Systems Officer 2 class standard with the exception of
a statement contained in the class standard that provides that
those in the "alternative position also classified as Systems
Officer 2" perform their duties under the general supervision
of a more senior analyst or administrative systems manager.
The difference between the duties of persons in an
"alternative position" and the Grievor is said to be, in terms
~f the supervision exercised.
2. The Union wishes to delete the second sentence and substitute
for it a statement: "... that there is no position under the
so2 classification which describes the work performed by the
Grievor with respect to LAN."
26
3. In the case before us, although counsel for the Union
indicated that he did not regard himself as being limited to
furnishing an explanation to support the Union's request for
an amendment based on the tests commented upon in the first
two interim decisions, the only one that he pursued was based
on an allegation that the ~rievor had wrongfully instructed
Mr. Wright, who was then counsel for the Union. Although the
Union was not relying on an explanation based on the admission
being made inadvertently, we do not regard this as supporting
a conclusion that Mr. Wright's failure to testify is without
significance. He could have testified about the state of the
Grievor's knowledge when giving him instructions.
4. Counsel for the Union relied on the Grievor's evidence that he
did not understand the nature of the purpose for which the
Union's statement was to be employed, and that he had no
experience in the drafting of position specifications (except
for his own) or with class standards.
5. We cannot fully appreciate whether counsel (Mr. Wright) was
improperly instructed without hearing his evidence as to what,
in fact, took place in the course of the meetings leading up
to the drafting of the Union's statement and the meeting
dealing with its approval by the Grievor. No explanation was
given for failing to call Mr. Wright, and there was no
suggestion that this was not possible. There was no
27
suggestion that the failure to call counsel had anything to do
with solicitor and client privilege, an argument that we
would, in any event, regard as difficult to sustain.
6. If counsel (Mr. Wright) had conscientiously carried out his
professional responsibilities, and in the absence of a
satisfactory explanation for not calling him as a witness we
have no reason to believe that he did not do so, he would have
explained to the Grievor the purpose for which the Union's
statement was being prepared, as well as the meaning of the
language of the class standard. In the circumstances, we must
assume that if he had been called he would have testified that
the purpose of the Union's statement and the meaning of the
class standard had been explained to the Grievor. We are
therefore unable to conclude, on the Grievor's evidence alone,
that Mr. Wright had ween wrongly instructed. In fairness to
the Grievor, he did not testify that the matters referred to
'had not been explained to him by Mr. Wright, but said that he
could not remember him doing so. In testifying about his
meetings with Mr. Wright, he referred to his recollection of
his impressions about what had transpired between himself and
Mr. Wright, and not to what was actually said to him about
either the purpose of the statement which Mr. Wright prepared
or the meaning of the class standard. Without hearing from
Mr. Wright, we are unable to assess the true state of the'
Grievor's knowledge about the matters relevant to his
28
instructing counsel. We observed the Grievor when he gave
evidence, and he appeared to be an intelligent person. As we
have concluded that Mr. Wright explained the purpose of the
statement and the meaning of the class standard, we must
conclude, contrary to the Grievor's assertions, that he
possessed both an understanding of the purpose of the
statement with respect to which he was advising Mr. Wright, as
well as the meaning of the· class standard. Such an
understanding is inconsistent with the Grievor's having
wrongfully instructed counsel.
The argument made by counsel for the Union that the statement
which the Union wishes to withdraw represents a conclusion of
law raises special difficulties. Although the statement
contains within it the ejements of a conclusion of law, it is
a mixed statement of fact and law. In particular, the
statement relates to the Grievor's duties, "in addition to his
above duties as a programmer" being his duties "as an
administrative systems analyst managing the operation of the
local area network ('LAN)." The sentence which the Union
wishes to delete identifies the lattter duties as involving
the same duties as are performed by those incumbents in the
"alternative position also classified as a Systems Officer
2 .... " The contents of the Union's statement, which we find
came as no surprise to the Grievor, includes a statement that
he, in the performance of his LAN duties, carries out the same
29
duties and possesses the ski/Is and knowledge of the
alternative position classified as Systems Officer 2. This is
a statement of fact, and the only exception is said to relate
to the factual distinction that the Grievor does not perform
his LAN administrator duties under the general supervision of
a more senior analyst or administrative systems manager, but
" answers to the Director, Mr. Stonehouse." The Union is
~equired to set out the duties and responsibilities performed
by him. It did so in the second sentence of paragraph 5 of
the Union's unamended statement, while adding that these are,
with a single exception, to be found in paragraphs 5 through
8 on page 2 of the class standard. In seeking to amend this
~tatement, the Union does not do so in terms of withdrawing
the latter factual statement, but asks to be permitted to
state that the SO2 class standard does not describe the work
he does in relation to the LAN.
8. Our conclusion is consistent with the way in which the Union's
unamended statement has been structured. Paragraph 3 of the
Union's statement sets out the factual assertion that the
Grievo~ performs the duties and responsibilities set out in
paragraph 3 of his position specification. Paragraph 3 of the
Grievor's position specification is made up of the "Summary of
Duties and Responsibilities." In addition, consistent with
the requirement of the Chair's memorandum, paragraphs 3 and 4
of the statement list "those duties and responsibilities which
30
the grievor [alleges placeJ ... [him] in a higher
classification."
9. If it had been the intention of the Union to treat the Grievor
as having duties and responsibilities with respect to the LAN
which were not stated in his position specification, it would
have done so. Even while requesting the right to amend
paragraph 5 of its statement, the Union has not suggested that
the Grievor's LAN duties and responsibilities differ from
those set out in his position specification or that they
differ from those of the other employees classified as Systems
Officers 2. What the Union appears to be arguing is that the
Grievor's LAN duties and responsibilities "as an
administrative systems analyst managing the operation of the
Local Area Network ("LAN")" (which do not differ from those of
the other employees referred to) are not subsumed in any
"position under the SO2 classification .... "
10. There was some argument from counsel for the Union, based on
the Grievor's lack of administrative experience relating to
the drafting of position specifications and his understanding
of class standards. However, it was not suggested that the
Grievor was not aware of those duties he carried out "with
respect to LAN," or that he was unaware of the duties
performed and the skills and knowledge employed by those
emploYe%s in "the alternative position also classified as
31
Systems Officer 2 .... "
11. We were unable to find any evidence that Mr. Wright was
wrongly instructed. We conclude that the Grievor was aware of
the purpose of the Union's statement and that he was aware of
the duties he and the Systems Officer 2's in the alternative
position possessed, as well as the skills and knowledge that
they employed in carrying out the LAN duties.
12. The statement in the second sentence of para. 5 of the Union's
statement, that it now wishes to withdraw, represents, in
part, one of fact as contemplated by the memorandum of the
Chair in that it indicated:
(a) those duties and responsibilities performed by the
Grievor, and
(b} those duties and responsibilities which the Grievor
alleged had placed him/her in a higher
classification.
It is such statements that were intended to narrow the issues
and shorten hearings in classification cases. In the Union's
statement, there is an acknowledgement that the Grievor
performs the duties listed in para. 3 of the Grievor's
position specification which include: "manages daily operation
of Local Area Network, including system backups, installing,
removing software, peripherals and applications." An
examination of the Union's statement discloses that this is
repeated in para. 5 where there is reference to the Grievor's
32
duties "managing the operation of the Local Area Network
('LAN')." The specific duties and the skills and knowledge
that he possesses in doing so are said to be those carried out
by the Systems Officers 2 referred to in the sentence that the
Union now wishes to delete. We cannot see how the evidence
supports a conclusion that the statement arose as a result of
a wrongful instruction of counsel.
i3. The Chair's memorandum of September 16, 1988 was intended to
result in the filing of statements relating to facts: the
Union listing the duties and responsibilities performed by a
grievor and those duties and responsibilities which he/she
alleges placed him/her in a higher classification, with the
Employer filing a position specification and replying to the
factual assertions of the Union, stating those which are
admitted and generally indicating the areas of disagreement.
Viewed in this light, the reference to the Grievor's LAN
duties being the same as those of "the alternative position
also classified as Systems Officer 2" being "described by
paragraphs 5 through 8 on p.2 of the class standard,"
represents a conclusion of law: that is, that the duties
performed by and the skills and knowledge employed by the
Grievor and the other Systems Officers 2 covered in the
"alternative position," are "described by paragraphs 5
through 8 on page 2 of the class standard." As a statement
of a legal conclusion, that portion of the statement from
33
"described by paragraphs 5 through 8 on page 2 of the class
standard," is not the kind of statement of fact envisaged by
the Chair's memorandum. Accordingly, there being no evidence
of bad faith on its part, the Union can still argue, as a
matter of law, that even though the LAN duties performed by
the Grievor and the other Systems Officers 2 referred to, in
managing the operation of the LAN, and the skills and
knowledge employed by them are the same, they are not subsumed
in the language of the SO2 class standard.
14. However, what the Union also proposes to do is to withdraw
that portion of the statement amounting to a statement of
fact. It is for the Board to rule on questions of law, such
as whether the duties and responsibilities of the Grievor fall
within the language of Systems Officer 2 class standard. As
such, only the admission of law can be withdrawn. There can
be no prejudice to the Employer in having to argue that
question of law. Its ability to do so is not impaired,
although it may be inconvenienced by being required to do so,
after having first agreed with the Union's legal conclusion in
its own statement. See paragraph 5 of the Employer's
statement.
15. While the Union will not, in the circumstances of this case,
be bound by its statement of a legal conclusion, its having
acted in' good faith, it cannot withdraw its admission of fact,
34
as it has failed to provide a proper explanation whfch would
support its request. The Union is bound by the assertion that
the Grievor's LAN management duties and the skills and
knowledge used by him in the performance thereof are the same
as the other Systems Officers 2 referred to, even though it
argues that these may not be those included in the paragraphs
of the class standard originally referred to. Accordingly, to
the extent that it may become material, the Union will not be
permitted to withdraw the factual admission that the Grievor's
duties and responsibilities with respect to the LAN are the
same as those other employees classified as Systems Officer 2,
and the Union will not be permitted in evidence to expand upon
the nature of the Grievor's duties and responsibilities "as an
administrative systems analyst managing the operations of the
Local Area Network" beyond the recitation of those duties and
responsibilities set out in its unamended statement.
DECISION
1. For the above reasons that portion of the second sentence of
para. 5 of the Union's statement being: "as such he performs
the duties and possesses the skills and knowledge of the
alternative position also classified as Systems Officer 2," is
binding on the Union and cannot be 'the subject of amendment.
However the conclusion of law contained in the words "and
described by paragraph 5 through 8 on page 2 of the class
35
standard," can be deleted and the Union may add the statement:
"It is the position of the Union that there is no position
under the SO2 classification which describes the work
performed by the Grievor with respect to LAN." This
represents a conclusion of law and the Union intends to argue:
That the duties and responsibilities described by paragraphs
5 through 8 on p. 2 of the class standard, with the exception
of the statement with respect to para. 6 thereof, do not, as
a matter of law, or at least as a mixed question of fact and
law, encompass the work performed by the ~rievor with respect
to LAN. In interpreting the language of the class standard,
we will be able to rely on the admission of fact that the
duties and responsibilities of the Grievor and the other
Systems Officers 2 referred to with respect to LAN are the
same.
2. It is truly unfortunate that the hearing of this matter has
been delayed because of uncertainty as to the limits that
should govern the amendement of the parties' statements in
classification cases. The Board has taken pains, in all three
interim decisions, to explain its position that it does not
wish to shackle the arbitration process with arbitrary rules
that conflict with the flexible procedures that characterize
the process. At the same time, informality is not a mere
shibboleth that permits a board to overlook the underlying
need for fairness in providing reasonable rules to preserve
36
the integrity of the statements provided for in the Chair's
memorandum. To press the role of informality too far can lead
to the same inequitable consequences as would result from a
too rigid view of the allowable limits of amendment. We would
also note that our ruling would apply, in equal measure, to
requests made an employer to amend its statement.
We also note that counsel for the Employer, without prejudice
to its. maintaining that the normal 20 day retroactivity period
would apply in this case, should the grievance succeed, withdrew
its objection to the request to amend paragraph 2 of the Union's.
statement to reflect its claim for retroactivity to November, 1990.
Dated at Toronto, this23 day of June, 1993.
M.R. Gorsky - Vice-Chairperson
I. Thomson - Nominee
"I DiSSENt"
D. Daugharty - Nominee