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Home My WebLink About2010-1383.Kolmann.17-06-14 Decision Crown 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#2010-1383 UNION#2010-0368-0040 Additional Grievances listed in “Appendix “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kolmann) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Randi H. Abramsky Vice-Chair FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING May 29, 2017 - 2 - Decision [1] This matter involves the interpretation of a Memorandum of Settlement signed on November 28, 2014. Vice-Chair Mikus was originally seized with the grievances involved and the parties agreed that “Vice-Chair Mikus or an alternative vice-chair of the Grievance Settlement Board as agreed to by the parties” was to be seized “for the purposes of interpretation and implementation.” In the circumstances, this dispute concerning the interpretation of the parties’ Memorandum of Settlement came before me. Facts [2] Neither party called any evidence. No explanation was provided concerning the timing of events - when the Memorandum of Settlement was first discussed and eventually signed. In relevant part, the Memorandum of Settlement provides as follows: WHEREAS the Grievor filed many grievances dated between March 4th 2010 and November 30, 2012 alleging various breaches of the Collective Agreement and the Ontario Human Rights Code related to the Employer’s obligation to accommodate her disabilities; and WHEREAS the Grievor has filed complaints with the Ontario Human Rights Tribunal alleging that the Employer has violated the Ontario Human Rights Code; and WHEREAS the Parties agree that the Grievor currently requires medical accommodation and that her home position of Admitting and Discharge sub- control meets her medical restrictions; NOW THEREFORE the parties agree to a full and final settlement of all current grievances on a without prejudice and without precedent basis, on the following terms: 1. The Grievor and the Union hereby withdraw any and all grievances up to today’s date except for the following grievances: OPSEU #2010-0368- 0040/GSB #2010-1383; OPSEU #2010-0368-0041 [eight grievances], which are somewhat related to the Attendance Support Management Pilot Program (ASMPP). These remaining grievances will remain before Vice-Chair Mikus for adjudication or settlement. The parties agree that no monetary remedy shall be awarded for any of these remaining grievances and that only disputes about the Attendance Support Management Pilot Program implementation as they relate to the Grievor’s attendance are still at issue and not issues related to Representatives of the Employer. 2. … - 3 - 3. The Grievor agrees to withdraw all Applications against the Employer that are currently before the Ontario Human Rights Tribunal by the Grievor. 4. … 5. … 6. … 7. The Grievor acknowledges, with the advice of her union representative, that this Memorandum of Settlement constitutes full and final settlement of any and all claims, complaints, grievances or actions arising up to November 30, 2012 out of this matter or facts related to this matter that the Grievor has or may have against the Employer, its’ representatives, employees and officials whether under any statute, regulation, policy, contract or at law, including but not limited to the Public Service of Ontario Act, the Employment Standards Act, complains under the Ombudsman Act, the Ontario Human Rights Coe, the Workplace Discrimination and Harassment Prevention Policy and any other employment-related policy or statute. However, nothing in this paragraph shall remove or restrict any rights under the Workplace Safety and Insurance Act or affect any claims, appeals, or potential claims or appeals thereunder. 8. … 9. The terms of this written Memorandum of Settlement represents the complete settlement agreement between the parties in relation to the above noted grievance and any related matters. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement. For greater certainty the pre-existing November 9, 2009 settlement is in no way affected by any of the terms of the MOS and to the extent that any obligations in paragraphs 2, 3 and 4 of the previous settlement remain outstanding those will be addressed by the parties. The 2009 MOS is attached. 10. … 11. … 12. The Parties agree that Vice-Chair Loretta Mikus or an alternative vice-chair of the Grievance Settlement Board as agreed to by the parties, shall remain seized to this memorandum of settlement for the purpose of interpretation and implementation. [3] Also introduced into evidence was a November 10, 2015 Memorandum of Settlement which dealt with the eight exempted grievances set out in the paragraph 1 of the November 28, 2014 settlement. [4] The final exhibit was a group of seven grievances filed by the Grievor in 2013, which form the basis of the interpretation issue. All of those grievances, with one exception (the March 25, 2013 grievance) appear to involve an alleged failure to pay the Grievor for statutory holidays in 2013. Specifically, it is the Employer’s position that these grievances were resolved by the November 28, 2014 Memorandum of Understanding. The Union asserts that they were not included in that agreement. - 4 - Reasons for Decision [5] According to the Employer, the Grievor, Ms. Carol Kolmann, had filed numerous grievances “too many to list”, which explains the first “whereas” provision. It points to the statement that the parties agreed “to a full and final settlement of all current grievances”, and paragraph 1, which states that “[t]he Grievor and the union hereby withdraw any and all grievances up today’s date except” for the eight listed grievances. In the Employer’s view, that includes any and all grievances filed before November 28, 2014, including the 2013 grievances. It submits that had the parties also intended to exempt the 2013 grievances, they clearly knew how to do so but did not. It contends that exemption of the 2013 grievances was not part of the parties’ bargain. [6] In terms of paragraph 7, the Employer submits that it is not inconsistent with the other provisions in the Memorandum of Settlement. It argues that paragraph 7 is a release against any prospective claims based on the same “matter or facts related to this matter that the Grievor has or may have against the Employer…” It contends that while paragraph 1 is retrospective – all grievances filed prior to November 28, 2014, paragraph 7 is prospective. [7] In support of its position, the Employer relies on Re AMAPCEO and Ontario (Treasury Board Secretariat), GSB No. 2014-4308 (Misra), at par. 35, which quotes Re Ontario Power Generation and Society of Energy Professionals, 2012 CarswellOnt 16996 (Surdykowski), concerning the rules of collective agreement interpretation. In particular, the Employer asserts that the words used must be given their “plain and ordinary meaning” and that it is “the words that the parties have agreed to use to express their intention which are of primary importance” because “[t]he parties to a collective agreement are presumed to say what they mean and mean what they say.” [8] The Union also relies on basic principles of contract interpretation. It submits that the Board must determine the intent of the parties in the Memorandum of Settlement. It argues that the parties’ intent is clear – they were settling all of the grievances that were filed between March 4, 2010 and November 30, 2012. This is clear, it contends, from the first “whereas” provision but even more so in paragraph 7. It submits that paragraph 7 clearly states that the agreement “constitutes a full and final settlement of any and all claims, complaints, grievances or actions arising up to November 30, 2012.” It argues that this specific limitation takes precedence over the more general language contained in paragraph 1. [9] In support, the Union cites to Re York University Faculty Association and York University, unreported decision of Arbitrator Burkett (Nov. 17, 1998); Re Ontario Power Generation and Power Workers’ Union, unreported decision of Arbitrator Goodfellow (Sept. 28, 2009); Re Ivaco Rolling Mills Ltd Partnership (Rod Mill) and U.S.W., Local 7940-1, unreported decision of Arbitrator Leighton (April 16, 2007), all of which stand for the proposition that the specific overrides the general. - 5 - [10] Applying these principles to the facts of this case, the interpretation of this Memorandum of Settlement presents some challenges. It appears to be internally inconsistent. In part, it limits the grievances settled to the time period between March 4, 2010 and November 30, 2012 (the first “whereas” and paragraph 7), and, in part, indicates that the parties “agreed to a full and final settlement of all current grievances” including “all grievances up to today’s date” with eight exceptions (the last preamble and paragraph 1). It is not a model of clarity. [11] The ultimate goal in an interpretation case, however, is to ascertain the intent of the parties. That intent is to be determined based on the words used by the parties. In this case, I am persuaded that the parties were intending to settle the “many grievances” that the Grievor had filed “between March 4th 2010 and November 30, 2012” That is clear from the first preamble. They wanted to settle “all current grievances”, with certain exceptions – all of which were from 2010 and 2011. They also wanted the related Ontario Human Rights claims filed with the Tribunal to be withdrawn. The Grievor, in paragraph 7, agreed that the settlement “constitutes full and final settlement of any and all claims, complaints, grievances or actions arising up to November 30, 2012 out of this matter or facts related to this matter that the Grievor has or may have against the Employer….” Why the settlement was not signed for two more years, until November 28, 2014, is not established in the record. But aside from the sentence in paragraph 1 that the “Grievor and the union hereby withdraw any and all grievances up to today’s date…”, the other provisions limit the grievances resolved to those between March 4, 2010 and November 30, 2012. I am persuaded that, although the agreement was signed on November 28, 2014, the intent of the parties was to resolve the numerous grievances filed between March 4, 2010 and November 30, 2012, and any potential claims related to the facts and circumstances in that time period. [12] The first paragraph, on its own, would indicate that the 2013 grievances should be included as they are part of “any and all grievances up to today’s date.” Likewise, only eight grievances were exempted from that broad withdrawal. I have some real concern that, when the agreement was signed in November 2014, the parties should have turned their mind to the 2013 grievances. There is no evidence that they did. But paragraph one does not stand on its own. It is part of a broader agreement, and must be read in context. I agree with the statement of the law set out by Arbitrator Surdykowski in Re Ontario Power Generation and Society of Energy Professionals, supra at par. 17: 17. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions… [13] In this case, although paragraph 1 could easily be read to include the 2013 grievances, “it is clear from the structure of the provision read in context that a different…meaning is intended.” The context here was the large group of grievances - 6 - concerning the Grievor’s accommodation that arose between March 4, 2010 and November 30, 2012, and the intent of the parties was to settle those grievances. [14] Consequently, I am persuaded, on the balance of probabilities, that the parties did not intend to resolve the 2013 grievances under this Memorandum of Settlement. The 2013 grievances are to be scheduled along with Grievor’s other remaining grievances. Dated at Toronto, Ontario this 14th day of June 2017. Randi H. Abramsky, Vice-Chair APPENDIX A GSB Number OPSEU File Number 2010-1384 2010-0368-0041 2011-0674 2011-0368-0034 2011-0675 2011-0368-0035 2011-0676 2011-0368-0036 2011-0677 2011-0368-0037 2011-0678 2011-0368-0038 2011-0679 2011-0368-0039 2011-0680 2011-0368-0040 2011-0681 2011-0368-0041 2011-0682 2011-0368-0042 2011-0683 2011-0368-0043 2011-0684 2011-0368-0044 2011-0685 2011-0368-0045 2011-2495 2011-0368-0142 2011-2708 2011-0368-0168 2012-1994 2011-0368-0247 2013-0032 2013-0368-0037 2013-1152 2013-0368-0074 2013-1731 2013-0368-0101 2013-2107 2013-0368-0109 2013-2777 2013-0368-0139 2013-3390 2013-0368-0181