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HomeMy WebLinkAbout2001-0534.Hunt et al.06-07-27 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0534 2003-2944 UNION# 2001-0551-0001 2003-0999-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Hunt et al ) Union - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER MeredIth Brown and Kelly Burke Counsel Mimstry of Government ServIces HEARING July 10 2003 January 14 March 1 & 10 May 3 June 11 & 21 July 22, August 24 & 25 September 28 & 29 October 27 December 17 2004 March 8 & 11 Apnl 15 May 6 & 31 2005 January 10 February 13 March 3 May 9 16 17 & 18 2006 2 DeCISIon On May 4 2001 a group gnevance was filed by three classIfied Court Reporters, allegIng that they "have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to the collectIve agreement. On August 20 2003 the Umon filed a polIcy gnevance, allegIng that "[t]he work assocIated wIth the preparatIOn and productIOn of transcnpts and certIfYIng them as accurate IS bargaInIng umt work to whIch the collectIve agreement applIes" In both gnevances, the central Issue IS whether or not the preparatIOn of transcnpts IS bargaInIng umt work. The heanng In thIS matter spanned 24 days and a number of prelImInary decIsIOns have been Issued. All earlIer findIngs of fact and conclusIOns, as applIcable are Incorporated Into thIS DecIsIOn. Facts By statute, the Attorney General "shall supenntend all matters connected wIth the admInIstratIOn of the courts, other than matters that are assIgned by law to the JudIcIary" Courts of Justice Act R.S 0 1990 c C 43 SectIOn 71 SImIlarly under the MinistlY of the Attorney General Act, the Attorney General "shall supenntend all matters connected wIth the admInIstratIOn of JustIce In Ontano " R S 0 1990 c M.17 SectIOn 5( c) To accomplIsh these tasks, the Ministry of the Attorney General Act provIdes that "[s]uch employees may be appoInted under the Public Service Act as are reqUIred from tIme to tIme for 3 the proper conduct of the busIness of the Mimstry " R S 0 1990 c M. 17 SectIOn 4 A sImIlar provIsIOn eXIsts under the Courts of Justice Act. RS 0 1990 c C 43 SectIOn 77(1) Two of the functIOns necessary to the admInIstratIOn of the courts and the admInIstratIOn of JustIce In Ontano are the "takIng of the record" and the preparatIOn of transcnpts, when requested by the JudIcIary the Crown or the defense bar A transcnpt IS the officIal wntten record of a court proceedIng. It provIdes a wntten record of the proceedIngs at tnal and forms the basIs of most appeals Transcnpts are typed from recordIngs created dunng the proceedIngs The process of recordIng the proceedIngs IS often referred to as "takIng the record." The process of tYpIng the recorded court proceedIngs IS referred to as "the preparatIOn of the transcnpt." To perform these functIOns, the Mimstry hIres Court Reporters There are approxImately 400 Court Reporters employed by the Mimstry There are several types of Court Reporters employed, and the mIX has changed over tIme At present, the vast maJonty (approxImately 80%) are Court Momtors A Court Momtor uses an open mIcrophone audIO recordIng devIce to record the proceedIngs In court, supplemented by a comprehensIve logbook. A stenographer uses shorthand or a stenotype machIne to record the proceedIngs A stenomask reporter uses a mIcrophone embedded In a stenomask to record theIr VOIce as they dIctate what IS Said dunng the proceedIngs, supplemented by a comprehensIve logbook. Transcnpts may also be created by a process known as Computer AIded TranscnptIOn (C AT ) With CAT reportIng, a reporter USIng a computer wIth specIal software, produces an Instantaneous rough draft of the transcnpt by dIgItally recordIng and translatIng phonetIc symbols entered by the reporter Afterwards, the rough drafts are revIewed for accuracy and proper formattIng to create an officIal transcnpt. There are only 15 to 20 C.A T reporters out of approxImately 400 Court Reporters In the 4 provInce For the purposes of thIS deCISIOn, all of the dIfferent types of court reportIng wIll be genencally referred to as "Court Reporters" There are both classIfied and unclassIfied Court Reporters In the Mimstry All are employees Included In the bargaInIng umt represented by OPSEU The classIfied employees work daIly from 8 30 a.m to 430 pm. The unclassIfied employees work on an "on-call, as reqUIred" basIs There are also agency court reporters used by the Mimstry Although every court proceedIng IS recorded, not all recorded proceedIngs are transcnbed. In fact, the maJonty of tnals do not Involve a transcnpt. Mr Mike Uhlmann, now ProJect DIrector- RevItalIzed Workforce ProJect, wIth the Court ServIces DIVISIOn, estImated that only about 10% of court proceedIngs are transcribed. Transcnpts are produced when there IS a request for a transcnpt - from the JudIcIary the Crown Attorney defense counselor a member of the publIc Some proceedIngs, however automatIcally reqUIre a transcnpt, such as mental dIsorder dISposItIOn heanngs, IncarceratIOn In a federal pemtentIary heanng; dangerous offender heanngs, reVIews of parole elIgIbIlIty and several others Further transcnpts are reqUIred for appeals All of the wItnesses, IncludIng Mimstry wItnesses, IdentIfied two key functIOns performed by a Court Reporter - takIng a verbatIm record of the proceedIngs In court and prepanng the transcn pt on request. Court Reporters are hIred by the Mimstry to perform both functIOns The current posItIOn descnptIOn for Court Reporter dated January 4 1994 states that 95% of the dutIes of a Court Reporter are as follows Performs Court Reporter servIces by 5 - recordIng verbatIm by shorthand, stenotype or stenomask the proceedIngs of the Ontano Court (General DIvIsIOn), SpecIal EXamInatIOns and Chambers MotIOns, IncludIng testImony of wItnesses, address to the JUry Judge's InstructIOns and all matters pertInent to the record, - readIng back In court, at the dIrectIOn of the Judge, proceedIngs prevIOusly recorded, - provIdIng transcnpts of court proceedIngs on request; certIfYIng the accuracy of transcnpts as Court Reporter (NOTE Transcnpts normally prepared on Incumbent's own tIme) - filIng the court records (cassettes and log books or shorthand notes) - other tasks as assIgned. Two earlIer verSIOns of the posItIOn descnptIOn, one dated January 23 1974 and the other July 1984 lIst the same maIn functIOns - recordIng verbatIm all of the proceedIngs In court, plaYIng back or readIng back prevIOUS recordIngs In Court as requested and "provIdIng typewn tten transcn pts and/or excerpts of the Courts proceedIngs as recorded and as requested or reqUIred." In these earlIer verSIOns, however there IS no "note" that transcnpts are normally prepared on the Incumbent's own tIme The class standards, lIkewIse state that the "responsIbIlItIes tYPIcally Include the folloWIng tasks - recordIng verbatIm all proceedIngs IncludIng testImony of wItnesses, arguments of counsel, Judge's InstructIOns, and all other matters pertInent to the record, - maIntaInIng log of names, addresses, other pertInent notes In court; readIng/plaYIng back proceedIngs as requested, - produCIng typed transcnpts as requested, accordIng to establIshed gUIdelInes, and certIfYIng them as accurate pnor to release - ensunng the filIng of tapes, shorthand notes, and log books The eVIdence IS clear that the productIOn oftranscnpts, upon request, IS a reqUIred part of a court reporter's dutIes It IS not optIOnal The Court Reporter cannot, wIthout the Mimstry's permISSIOn, refuse to prepare a transcnpt. As the Court Momtor TraInIng Manual, produced by the Mimstry to traIn new Court Momtors, states "The productIOn of the transcnpt IS probably the most Important duty you wIll have as a court reporter" It then adds, In bold letters, that "there IS 6 an oblIgatIOn on the part of the Mimstry to ensure that the court momtor produces the transcnpts accurately In the proscnbed format, In a tImely manner and that the fees are collected In accordance wIth the RegulatIOns" The same statement IS made In the Role of the Court Momtor manual A Court Reporter also cannot, wIthout the Mimstry's permISSIOn, delegate the preparatIOn of a transcnpt to another Court Reporter Court Reporters may hIre a tYPISt to type the transcnpt, but certIficatIOn of the transcnpt remaInS the responsIbIlIty of the Court Reporter who took the record In court. The Court Reporter must certIfy that the transcnpt IS a true and accurate transcnptIOn from the recordIngs the Court Reporter made In court, to the best of hIS or her skIll and abIlIty Each copy of the transcnpt must be so certIfied and sIgned by the Court Reporter There IS one exceptIOn to thIS The Evidence Act was recently amended to provIde for two separate certIficatIOns where the proceedIngs have been taped by a Court Momtor The Court Momtor certIfies that the tapIng he or she took of the court proceedIngs IS an accurate recordIng. Then there IS a separate certIficatIOn that the transcnpt IS an accurate transcnptIOn of the certIfied recordIng. Normally the same person both takes the record and types the transcnpt, but wIth the separate certIficatIOns the tYpIng may be done by another court reporter ThIS two- step certIficatIOn procedure does not eXIst for other types of court reporters For short-hand, stenographer and stenomask reporters, the same person must take the record and certIfy that the transcnpt accurately reflects the verbatIm proceedIngs In court. Mr Uhlmann testIfied that the Mimstry In connectIOn wIth thIS dual certIficatIOn amendment, now "certIfies" Court Momtors The Mimstry created two panels The "A" panel Included any Court Reporter who had prepared a transcnpt wIthIn the pnor 12 months They 7 were "grandfathered" onto the "A" panel The "B" panel IS for new Court Reporters who have been traIned and deemed qualIfied to produce a transcnpt. There IS no "certIficatIOn" by the Mimstry of other types of Court Reporters As noted, the Job specIficatIOn, sInce 1994 states that the preparatIOn oftranscnpts IS on the Incumbent's "own tIme" The Court Momtor TraInIng Manual, lIkewIse, states that the "transcnpt IS produced on the court momtor's own tIme" as a "separate busIness of the momtor" The eVIdence shows, however that the practIce of the Mimstry In relatIOn to Court Reporters prepanng transcnpts dunng "work tIme" - as opposed to on theIr own, unpaid tIme - vanes throughout the proVInce There was substantIal eVIdence that many Court Reporters do type transcnpts and perform related functIOns dunng paid work tIme In some courts, classIfied Court Reporters had scheduled tIme "out of court" to type transcnpts The extent of thIS practIce IS unclear AccordIng to Mr Terry Moore, then an OPSEU Gnevance Officer who dealt In many Court Reporter matters In the early 1990's, the "overwhelmIng preponderance of the workplaces wIth classIfied court reporters allowed them to prepare transcnpts dunng work tIme" ThIS practIce was prohibIted, effectIve July 15 1990 by the Mimstry In a memo dated May 29 1990 by Mr Michael Gourl ey AssIstant Deputy Attorney General Courts AdmInIstratIOn. ThIS led to the filIng of numerous IndIVIdual gnevances and several polIcy gnevances The partIes agreed to put all of these gnevances on hold pendIng settlement negotIatIOns and the Gourley memo was not Implemented. Under thIS agreement, whatever the local practIce was at a court house was to remaIn the practIce, pendIng settlement negotIatIOns Even though the settlement negotIatIOns ended, there IS no eVIdence that the Gourley memo has 8 ever been Implemented. Consequently whatever practIce eXIsted In 1990 regardIng Court Reporters tYpIng dunng work tIme presumably contInues to the present. In many courts, classIfied Court Reporters are allowed to type dunng "down tIme" A classIfied Court Reporter's day IS 8 30 a.m to 430 p.m "Down tIme" Includes the penod before Court starts, from 830 to 930 a.m when the Court IS In recess or If the court ends early Dunng those tImes, many court reporters have been permItted to type at work and were paid theIr regular wages whIle dOIng so UnclassIfied Court Reporters have also been permItted to type at work where they are called In, but then not reqUIred In Court, or If theIr Court ends early before the mImmum call-In pay IS up There IS no eVIdence, however that they have been called In specIfically to type transcn pts Even In the courts where tYpIng IS not permItted dunng these tImes, Court Reporters have been allowed to perform related transcnpt functIOns, such as proof-readIng typed transcnpts, bIllIng, checkIng cItatIOns and spellIngs, photocoPYIng, bIndIng and so forth. Ms Sarah Coombs, a classIfied Court Reporter testIfied that, at tImes, when she was behInd on transcnpts, she was gIven days out of court to type transcnpts and that she also regularly typed dunng "down tIme" dunng the work day It was her testImony that all Court Reporters, both classIfied and unclassIfied, had been allowed to type dunng work tIme In the Milton Court House as well as In Brampton. Ms Florence Clarke, also a classIfied Court Reporter testIfied that she ongInally had been scheduled days out of court to type transcnpts at the East Mall and that she could type transcnpts dunng "down tIme" but that practIce changed 9 In 1990 After that, she was only allowed to perform transcnpt related work dunng "down tIme" penods It was the Mimstry's eVIdence through Court Manager Rosa MartellI, that the practIce at the East Mall of schedulIng "days out of court" to type changed In eIther 1997 or 1998 but that Court Reporters could stIll type dunng "down tIme" Ms Earnell WillIams, an unclassIfied Court Reporter testIfied that she was allowed to type dunng work tIme when she was called In, but there was no court to work In. Ms Isabelle Monn, a classIfied Court Reporter testIfied that she typed at work but was not scheduled days out of court to type Nevertheless, because she usually only worked for bIlIngual Judges, she regularly had one day per week to type whIle at work. The eVIdence also showed that transcnpts may also be typed at work, dunng work tIme, when a Judge orders It. In that event, the Court Reporter must advIse hIS or her supervIsor and receIve permIssIOn. A very sIgmficant amount of tYpIng transcnpts, however IS done outsIde of court, on non-work tIme, and thIS forms the crux of the Umon's complaInt. In the Umon's VIew transcnpt preparatIOn IS reqUIred work whIch should be subJect to the collectIve agreement, IncludIng the overtIme provIsIOns In the Mimstry's VIew the preparatIOn of transcnpts IS separate from the takIng of the record and when Court Reporters perform thIS functIOn, they are actIng as Independent contractors In the Mimstry's VIew the preparatIOn oftranscnpts IS not bargaInIng umt work. Court reporters are not paid wages for the tIme spent tYpIng transcnpts outsIde of work hours They are paid, per page, based on a tanff set by regulatIOn under the Administration of Justice Act 10 The tanff sets out a fee of $3 20 per page for the first copy ordered, and 55 cents per page for each addItIOnal copy ordered except for transcnpts for appeal to the Court of Appeal or DIvIsIOnal Court. For appeal transcnpts, a fee of $3 75 per page for a sIngle transcnpt may be charged, regardless of the number of copIes reqUIred or ordered. As Mr Uhlmann testIfied, there are "gaps" In the tanff For example there IS no mentIOn of an expedIte fee or a request for a dIskette, or a mImmum fee In the tanff It IS the Mimstry's posItIOn, however that Court Reporters are not permItted to charge In excess of the tanff and that these matters may not be "negotIated." The Court Momtor TraInIng Manual states that the regulatIOn "does not allow an expedIte fee In transcnpts or court proceedIngs, nor IS a mImmum fee allowed." It also states that a Court Reporter must provIde a dIskette, upon request, "at a fee equal to the cost of the dIskette" unless the blank dIskette was provIded by the court office In whIch case the court reporter "IS not entItled to a fee" The TranscnptIOn and Procedures Manual states that "[0 ]ther than as prescnbed by regulatIOn, no other fees are payable to court reporters" The TraIner's Manual goes even further It states, at SectIOn 5 2 that "[a]ny vanance from these set fees IS unlawful "(O.Reg. 587/91 as amended, AdmInIstratIOn of JustIce Act) Ms Monn testIfied, however that she was not aware that a dIskette was covered by the regulatIOn and that she charged for two copIes when she supplIed a dIskette, wIthout complaInt by the ordenng party She also testIfied that she was free to charge extra for a French transcnpt, SInce It was not covered by the regulatIOn, although she has never done so The Mimstry on behalf of the Attorney General, maIntaInS an oversIght functIOn In regard to the productIOn of transcnpts, IncludIng conformIty wIth the tanff As stated In the TraInIng Manual for Court Momtors, repeatedly 11 Even though the transcnpts are produced at home on your own tIme, the Mimstry has an oblIgatIOn to ensure that the transcnpts are produced accurately and In a tImely fashIOn, and that the bIllIng IS done In accordance wIth the regulated fees Any complaInts or concerns that you receIve regardIng transcnpt productIOn should be brought to the attentIOn of your supervIsor so they can assIst you In dealIng wIth the sItuatIOn. Transcnpt productIOn - tImelIness, accuracy productIVIty - forms part of the evaluatIOn process for a court reporter It IS one of the "measurables as to your Job performance" As stated In the TraInIng Manual, In bold letters REMEMBER. The productIOn of accurate transcnpts IS a large part of the dutIes of a court momtor FaIlure to do so wIll become a performance Issue and as well, could have senous ramIficatIOns for the lItIgants! The eVIdence Included several performance appraisals whIch Included a reVIew of a court reporter's transcnpt productIOn - for beIng "wIthIn prescribed tImes" accuracy and "350 pages per month." Mr Lou BartuccI, Manager of Court OperatIOns at 361 UmversIty Avenue, testIfied that "we attempt to ensure preparatIOn of transcnpts In a tImely fashIOn, proper formattIng wIthIn the gUIdelInes, and that the tanffs are followed." On occaSIOn, he stated, the Mimstry wIll order a transcnpt for "qualIty control" purposes Mr Uhlmann testIfied that, In "many areas In the provInce" the Mimstry momtors the tImelIness of transcnpts, and that managers and supervIsors wIll "regularly go to a court reporter about a delayed transcnpt" and "ask for an update" He added that If a Judge IS concerned, he or she wIll go to the manager or supervIsor to InqUIre about the transcnpt. The manager or supervIsor would then "try to resolve the concern." In hIS VIew where there are statutory deadlInes, the Mimstry "takes an actIve role In ensunng that the transcnpt IS produced." ThIS IS to ensure that court proceedIngs are not delayed by a delInquent transcnpt. 12 On February 18 2003 ChIef JustIce of Ontano Roy McMurty Issued a PractIce DIrectIOn for the Court of Appeal for Ontano whIch states that "[i]t IS antIcIpated transcnpts wIll be completed wIthIn 90 days of the date of beIng ordered" and reqUIred the Mimstry to momtor "the progress of any transcnpts ordered." When a transcnpt IS delayed, "the court wIll InqUIre as to the status of the transcnpt and as to whether the court's assIstance IS reqUIred to ensure the tImely completIOn of the transcnpt." Every aspect of transcnpt productIOn IS dIctated by the TranscnptIOn and Procedures Manual It covers transcnptIOn orders (eIther on Mimstry forms or In wntIng) remOVIng recordIngs and logbooks for transcnptIOn purposes tImeframes for transcnpt productIOn, deposIts, loggIng of transcnpt orders transcnpt formattIng rules IncludIng the type and SIze of paper font, lInes per page headIngs, the cover and back page content and colour bIndIng; certIficatIOns, and dIstnbutIOn. It covers prepanng the InVOICe for the JudIcIary and the Crown (on a form provIded by the Mimstry) as well as what must be Included for pnvate partIes, IncludIng the fees that may be charged. In regard to pnvate InVOICeS, the Mimstry states In the TraInIng Manual that the "InVOICe should clearly set out the number of pages and per page rate" "should credIt any deposIt receIved" and "[e]nsure that your name court address and contact number are on the InVOICe" In another manual entItled "The Role of the Court Momtor" publIshed by the Mimstry the Mimstry advIses "[n]ever Include your home address or telephone number on the personal InVOICe Always use the Court House address and phone/fax numbers" 13 The TraInIng Manual also states that transcnpts for appeals may not be delayed for lack of a deposIt, and transcnpts ordered by a representatIve of any government Mimstry cannot be wIthheld pendIng payment. The TranscnptIOn and Procedures Manual IS produced by the Mimstry based on a vanety of sources such as legIslatIOn, regulatIOn, rules, and practIce dIrectIves regardIng transcnpt productIOn. Its purpose IS to ensure umformIty and consIstency All Court Reporters, not Just those employed by the Mimstry are expected to comply wIth the polIcIes set out In thIS manual The tIme penods for the productIOn of transcnpts, as set out In the Manual, vanes based on the type of transcnpt. In addItIOn, there are expected "norms" for transcnpt productIOn. The folloWIng table appears In the TraIner's Manual for Court Momtors NORMAL TURNAROUND TIMES FOR TRANSCRIPT PRODUCTION BaIl heanng for use on baIl reVIew 2 days ApplIcatIOn of Stay 7 days Reasons for Judgment and sentence 7 days DISposItIOn heanngs 7 days RESO (ProvIsIOnal & ConfirmatIOn 21 days JudIcIal RevIew 30 days PrelImInary InqUIry 30 days Summary ConvIctIOn Appeal 30 days PrerogatIve wnt* 30 days Inmate appeal 30 days Other cIvIl and cnmInal proceedIngs 30 days * Habeas corpus motIOn to quash, prohIbItIOn, mandatory order There can be some IndIVIdual negotIatIOn between the court reporter and the ordenng party In terms of completIOn, but the standards are set out In the Manual Court Reporters, In the TraIner's Manual, are advIsed that that "[i]t IS vItally Important that you maIntaIn a lIne of commumcatIOn wIth your supervIsor so that they are aware of 14 sItuatIOns where you may not be able to meet the reqUIred tImeframes for produCIng the transcnpt." It adds that the supervIsor "can then assIst you In a number of ways 1 e not schedulIng you In court so you wIll have tIme to type, assIgmng some of the urgent orders to other reporters who are not as overloaded at the tIme" It states that "[i]fyou are unable to meet those expectatIOns, agaIn confer wIth you supervIsor and contact the ordenng party wIth new deadlInes Your supervIsor may decIde to assIgn portIOns of the transcnpt to another party" In terms of Mimstry sanctIOns for untImely transcnpt productIOn, Mr Uhlmann testIfied that the "ultImate leverage" that the Mimstry has IS to keep the Court Reporter out of court untIl the transcnpts are complete In other words, the Court Reporter IS not assIgned to any new tnals untIl hIS or her transcnpts are done He stated, on examInatIOn-In-chIef, that the Mimstry does not have the power to Impose a dIscIplInary sanctIOn In these CIrcumstances But In cross- eXamInatIOn, he acknowledged that termInatIOn "may be" an appropnate response If a court reporter could not properly type transcnpts EIther that, or In the case of a court momtor the Mimstry could keep them on solely to take the record. He was not aware of any court reporter fired for beIng unable to do transcnpts, or of any court momtor who solely takes the record. The "realIty" he testIfied, was that a Court Reporter who had dIfficulty wIth transcnpts would not be assIgned to a court where a transcnpt was lIkely to be needed. Court Reporter Earnell WillIams testIfied that In 2002, she developed a backlog and was kept out of court by management for approxImately ten days - wIthout pay - because of overdue transcn pts ThIS actIOn IS the subJect of another gnevance before the GSB Court Reporter Isabelle Monn testIfied that the Mimstry took some of her transcnpts away because she could not complete them In a letter dated September 1 1998 to Ms Monn, 15 Mr Lou BartuccI, then Manager- Court OperatIOns, CnmInal, wrote that Ms Monn could eIther complete the transcnpts herself or seek the assIstance of colleagues to help her complete the transcn pts If those two optIOns were not acceptable, he would have to retneve the records and "assIgn the preparatIOn of the transcnpts " He requested that she contact hIm by the end of the day on September 4th or "I wIll have no chOIce but to take the appropnate steps to ensure that these transcnpts are prepared wIthIn the reqUIred tIme frames" Mr BartuccI testIfied that the Mimstry has the authonty umlaterally to reassIgn transcnpt productIOn to another court reporter It appears that the level of management supervIsIOn of Court Reporters' transcnpt productIOn vanes among the courts In the proVInce In the Central West RegIOn, for example, all requests for transcnpts are recorded and logged. A PractIce DIrectIve, Issued November 2003 states that Court Reporters must submIt a Transcnpt Summary Log to theIr supervIsor on the first of each month. They must Inform theIr supervIsor If they are unable to produce the transcnpt so "[t]he supervIsor may assIgn the order to an alternate court reporter" They must advIse theIr supervIsor If a transcnpt IS over due and outlIne the expected the date of completIOn. Further "[i]nvOIces must be submItted to the supervIsor for approval" In Brampton, a receptIOmst processes all requests for transcnpts and handles most of the admInIstratIve aspects of transcnpt productIOn. Mr KIn LIm, who held that posItIOn from 2002 untIl 2004 testIfied that he logged In the transcnpt requests Into the office computer advIsed the appropnate court reporter took transcnpt deposIts, collected transcnpt fees and would hand over the completed transcnpts to the ordenng party He also Issued daIly weekly and monthly transcnpt actIvIty reports whIch he placed In the court reporters' maIlboxes He acknowledged that there may have been transcnpt requests that went dIrectly to the Court Reporter of whIch he 16 was not aware He testIfied, however that the Court Reporter IS supposed to refer such requests to the ReceptIOmst. Mr Uhlmann descnbed thIS as a "coordInatIng" functIOn, usually performed In the larger court houses There would be a staff member at an "order desk" and that person would take the transcnpt order take In the deposIt, pull the nght tapes and logs, and advIse the Court Reporter In smaller court houses, transcnpt requests often are made dIrectly to the IndIVIdual reporter Transcnpts ordered by the JudIcIary are passed on by the Court ServIces DIVIsIOn of the Mimstry to the Court Reporter As Mr Uhlmann explaIned, "for all Intents and purposes, It IS the Mimstry who orders the transcnpt on behalf of the Court." In other courts, such as 361 UmversIty Avenue, only transcnpts for the Court of Appeal are tracked by management. There IS no ReceptIOmst posItIOn, but there IS an order desk whIch performs many of the same, but not all, of the functIOns of a receptIOmst. The JudIcIary also gets Involved when a transcnpt IS late Under the Administration of Justice Act a Judge IS In charge of hIS or her courtroom JudIcIal orders have Included settIng a date for the completIOn of the transcnpt, faIlIng whIch "the reporter IS to appear before me to explaIn the delInquency" In another case of a late transcnpt, the Court ordered the Court Reporter to report to work "every weekday" from 8 30 a.m. to 4 30 P m "untIl such tIme as a CertIficate of CompletIOn has been filed wIth respect to said transcnpt " The Judge further ordered that the Court Reporter "wIll not be paid by the Mimstry of the Attorney General for the days on whIch she attends at the Courthouse to complete the transcnpt or otherwIse In respect of thIS matter sImIlarly she IS not 17 to undertake any other work untIl a CertIficate of CompletIOn of the transcnpt has been filed." ThIS type of order accordIng to Mr BartuccI, was not a common occurrence Mr BartuccI explaIned that the Court of Appeals status court works wIth court management to ensure the tImely preparatIOn of transcnpts The Mimstry makes InqUIry of the Court Reporter and, If necessary wIll not assIgn them to court untIl the transcnpts are done In terms of the delIvery oftranscnpts for pnvate lItIgants, thIS may be negotIated between the ordenng party and the Court Reporter (i.e couner servIce pIck-up) but the eVIdence showed that most partIes opt to pIck up the transcnpt from the Court House DelIvery of transcnpts to the Crown or JudIcIary IS done by the Mimstry Each of the Court Reporters who testIfied produced a copy of theIr tax returns, wIth the numbers but not the categones blocked out. In each case the Court Reporters claimed the Income that they receIved from transcnpt productIOn as eIther professIOnal or busIness Income, separate from theIr wages as a Court Reporter They receIved a T4-A form from the Mimstry for reportIng fees paid for transcnpts for the JudIcIary and the Crown. AddItIOnal amounts paid for transcnpts from pnvate ordenng partIes were also Included. The Court Reporters claimed tax deductIOns for home busIness use, and busIness related deductIOns such as telephone, automobIle, computers, and so forth. The eVIdence also showed that untIl the early 1990's, a Court Reporter's "basIc pay" and "reportIng fees" were Included In theIr Mimstry paycheques, and that tax and C.P.P deductIOns on both were made at source by the proVInce Both theIr wages and reportIng fees were Included 18 In theIr T 4 form At tImes, a Court Reporter would receIve a cheque from the proVInce for reportIng fees, alone, wIth Income tax deductIOns made by the proVInce There was no eVIdence that Court Reporters perform transcnpt work outsIde of theIr Court Reporter Jobs wIth the Mimstry or sought such work. ConceIvably they could do so partIcularly the unclassIfied Court Reporters The classIfied Court Reporters work full-tIme whereas the unclassIfied reporters work "on-call, as reqUIred." But even then, there IS a commItment to the Mimstry to be avaIlable Ms WillIams, an unclassIfied Court Reporter testIfied that she works "every day" Consequently the eVIdence presented In thIS case IS that the transcnpt work performed by the Court Reporters flows exclusIvely from theIr work as Court Reporters wIth the Mimstry The Court Reporters also do not and cannot control the amount of transcnpt work they receIve and must perform Although some transcnpts are automatIc, In many proceedIngs It IS not clear If a transcnpt wIll be ordered untIl one IS actually ordered. Ms Coombs testIfied that she had no control over the amount of transcnpt work reqUIred of her It was her testImony as well as the other reporters, that a court reporter cannot refuse a transcnpt request. Mr BartuccI concurred wIth thIS Of course If a court reporter IS III or unable to produce the transcnpt, the Mimstry wIll reassIgn the task. There was no eVIdence that a Court Reporter can SOlICIt transcnpt work from the JudIcIary the Crown or pnvate partIes At most, an unclassIfied Court Reporter may make hImself or herself "unavaIlable" for a penod of tIme to work on transcnpts But If the Court Reporter IS "avaIlable" he or she must accept an assIgnment to court from whIch a transcnpt may be ordered. 19 All of the Court Reporters testIfied that, on rare occaSIOns, they hIred a tYPISt to assIst In the completIOn of theIr transcnpt work. They found, however that thIS was not economIcal because they had to pay the tYPISt and stIll had to reVIew the tapes and proof read the work to ensure ItS accuracy make correctIOns, reproof It and certIfy It. In all cases, however It was the Court Reporter's decIsIOn whether to hIre a tYPISt and whom to hIre There IS also Mimstry Involvement In collectIOn of transcnpt fees Transcnpt fees for the JudIcIary are paid dIrectly by the Mimstry In some cases, transcnpts for the Crown are also paid by the Mimstry and then charged back to the Crown Attorney In other cases, they are paid by the Crown Attorney agaIn on a form provIded by the Mimstry Most of the Court Reporters testIfied that If they have an Issue WIth collectIOn of transcnpt fees from a pnvate ordenng party they deal wIth It themselves They usually call the party When Ms Monn was asked on cross-eXamInatIOn how she handles It If she has not been paid, she stated "I handle my own affairs, It'S my work." The Transcnpt Manual, however advIses Court Reporters to dISCUSS any collectIOn problems wIth theIr supervIsor "If you expenence dIfficulty In collectIng transcnpt fees from an ordenng party dISCUSS the problem wIth your manager or supervIsor" Mr BartuccI testIfied that management plays a "mIddle man" or "customer servIce role" when an Issue anses from a pnvate ordenng party The Court Reporters vIewed the completed transcnpt as "theIr" work. AccordIng to Ms Clarke, the Court Reporter "owned" the transcnpt and had copynght protectIOn over It. In contrast, the "record" accordIng to Mr Uhlmann, IS owned by the Mimstry on behalf of the JudIcIary 20 In terms of eqUIpment, agaIn the practIce vanes throughout the proVInce The Court Momtor TraInIng Manual states as follows In regard to "Transcnpt SupplIes" Although practIces may vary throughout the proVInce, generally the Mimstry may supply you wIth the folloWIng supplIes and servIces Transcnber (ThIS may vary from locatIOn to locatIOn) Tapes Notebooks Pens Transcnpt paper Transcnpt coloured backIng covers Cerlox/ Acco bInders Use of bIndIng machIne (No charge) Ear phones You may be reqUIred to supply Computer and computer supplIes PnntIng cartndges Ear phones HighlIghters, coloured pens etc PlastIc front covers (OptIOnal- not reqUIred by regulated format) The Manual states that Court Reporters are to be charged for photocopIes at the rate of 5 cents per page, but the Court Reporters who testIfied stated that, wIth some exceptIOns, they were not charged for photocopIes They testIfied that bIndIng IS eIther done by them, USIng the Mimstry's bInder or done by the Mimstry The TraInIng Manual outlInes the procedure for havIng the Mimstry bInd Court of Appeal transcnpts, USIng a Mimstry form. Mr LIm testIfied that when he became a Court Momtor he ImtIally used one of the ten to fifteen transcnbers (a cassette player wIth a foot pedal to control tape speed, play and rewInd) supplIed by the court, but eventually purchased hIS own for convemence He regularly used one of three computers avaIlable at the court, and the Mimstry's pnnter to type and produce transcn pts His tapes were provIded by the Mimstry Ms Florence Clarke testIfied that the Mimstry provIded (and repaired) her stenomask, transcnber foot pedal and ear phones, a tape 21 recorder transcnpt paper covers and office supplIes, photocopIes, bIndIng and telephone IncludIng long dIstance calls relatIng to transcnpts She provIded her own stenotype machIne and pnnter Mr Uhlmann testIfied that even though the Intent of the Mimstry was that Court Reporters would provIde theIr own transcnbers, SInce thIS was vIewed as Independent work, over tIme some of the courts provIded them. Further he stated that where Court Reporters are allowed to type dunng work tIme, they do so on Mimstry computers He stated that there are very few stenomasks left, although some are kept In court houses for back-up purposes He stated that the Mimstry does not provIde C AT software The Employer Introduced two determInatIOns regardIng the Independent contractor status of Court Reporters The first IS a letter dated September 27 2004 to a Court Reporter from a Workplace Safety and Insurance Board Account Manager regardIng a general questIOnnaire she submItted regardIng worker/independent operator status ThIS letter determInes that although Court Reporters are employees when provIdIng In-court servIces, "when It comes to transcnpt work for Judges and Crown Attorneys, the facts suggest that Court Reporters are also actIng as Independent contractors rather than employees" The two "most Important facts" for thIS conclusIOn "are that the Mimstry of the Attorney General Issues T4A receIpts for transcnpt work Instead of T4 receIpts, and the rates for transcnpt productIOn are set by the Courts of JustIce Act, and not any agreement between the Mimstry and the Court Reporters" The other was a letter from Canada Revenue Agency dated Apnl 11 2005 regardIng Ms Florence Clarke's request for a rulIng regardIng the InsurabIlIty and pensIOnabIlIty of her transcnbIng fees The letter wntten by a CPP/EI Coverage Officer determIned that although 22 she IS an employee under a contract of servIce, "her earmngs In Canada whIch have been reported on a T4A slIp Issued by the Mimstry of the Attorney General are actually paid by the JudIcIary CouncIl" whIch dId not hIre her under the Public Service Act of Ontano Therefore "her earnIngs for the transcnbIng fees are not Insurable under the Employment Insurance Act nor pensIOnable under the Canada Pension Plan. ThIS rulIng IS under appeal It should be noted that both the Mimstry and the Umon dId not agree that transcnbIng fees "are actually paid by the JudIcIary CouncIl" Further In neIther case was there a heanng on the ments Positions of the Parties For the Union The Umon contends that the preparatIOn oftranscnpts IS bargaInIng umt work, subJect to the collectIve agreement. It argues that all of the Court Reporters are "employees" and In the bargaInIng umt represented by OPSEU It submIts that It has met ItS ImtIal onus of establIshIng that the preparatIOn of transcnpts IS part of the regular work performed by Court Reporters, that It IS part and parcel of what they are hIred to do for the Mimstry In order to fulfill the Attorney General's responsIbIlItIes to supenntend the courts and admInIstratIOn of JustIce In Ontano In the Umon's VIew the eVIdence overwhelmIngly demonstrates that the preparatIOn of transcnpts IS reqUIred work for Court Reporters ThIS IS eVIdent, It submIts, from the Job descnptIOns and class standards as well as the testImony of the wItnesses at the heanng. The preparatIOn of transcnpts, It argues, IS not optIOnal The Court Reporter cannot say "no" wIthout the permISSIOn of management. They are evaluated on the performance of thIS functIOn and can be dIscIplIned and even termInated If transcnpts are not completed properly The Umon further 23 relIes on the fact that, hIstoncally Court Reporters have been regularly allowed to type transcnpts on "work tIme" The Umon cItes to Re Worthington Cylinders of Canada Corp and United SteelYf,orkers of America, Local 9143 (2004) 123 LAC (4th) 248 255 (SurdykowskI) for the proposItIOn that " 'bargaInIng umt work' IS the work that IS normally performed by bargaInIng umt employees" It cItes to OPSEU (Union Grievance) and MinistlY of Health and Long-Term Care (2002) GSB No 1942/94 (Fisher) and OPSEU (Pilon et al.) and Ministry of Community and Social Services (2001), GSB No 1254/94 (Brown) for the proposItIOn that the Employer may not use non- employees to perform bargaInIng umt work. The Umon further argues that once It has met ItS onus of establIshIng that the preparatIOn of transcnpts IS bargaInIng umt work, the onus ShIftS to the Employer to demonstrate that the work has been properly contracted out. It asserts that "he who asserts, must prove" CItIng Gorsky Uspnch and Brandt, EVIdence and Procedure In Canadian Labour Arbitration Ch. 9- 25( e) Re Spar Aerospace Ltd and Spar Professional & Allied Technical Employees Association (Metropolitan Toronto) (1994) 40 L.AC (4th) 15 (H. Brown) Re Hydro Electric POYf,er Commission of Ontario and Canadian Union of Public Employees Local 1000 (1974) 5 L.A C (2nd) 168 (O'Shea) Re International Nickel Co of Canada Ltd and United SteelYf,orkers, Local 6500 (1975), 9 LAC (2nd) 173 (Gorsky) Re Lakehead District School Board and Canadian Union of Public Employees Local 2486 (2001) 96 L.AC (4th) 315 (Luborsky) The Umon submIts that the eVIdence does not establIsh that the Court Reporters are Independent contractors In relatIOn to the preparatIOn of transcnpts It argues that the Mimstry has total control over the productIOn of transcnpts - the rates that may be charged, how orders 24 may be made (in wntIng only) what transcnpts must contaIn (the paper font, headIngs, lInes per page cover colour etc) It asserts that the Mimstry IS Involved In every aspect of the productIOn of transcnpts - takIng the orders, takIng the deposIt, collectIng the fees, provIdIng the paper copYIng and bIndIng, and delIvery of the transcnpts, and provIdIng much of the eqUIpment so that, from the perspectIve of the publIc, It IS a servIce provIded by the Mimstry The Umon argues that the Court Reporters are not provIdIng transcnpts as theIr own busIness, but are reqUIred to do so as part of theIr Job The Court Reporters, the Umon submIts, are not In "busIness for themselves" but fulfill a responsIbIlIty of the Mimstry of the Attorney General TheIr only source of court reportIng work, the Umon contends, IS the court proceedIngs that are assIgned to by the Mimstry They do not have other Independent, court reportIng "clIents" and are not "entrepreneunal" In theIr actIvItIes The Umon submIts that under the facts of thIS case and any of the legal tests that have been used to determIne "Independent contractor" status, the Mimstry has faIled to meet ItS onus that the Court Reporters are Independent contractors In support, It relIes on Brown and Beatty Canadian Labour Arbitration 3rd EdItIOn, SectIOn 5 1320 Re Emu Plastics Ltd and United Food and Commercial Workers International Union, Local 175 (1999) 82 L.AC (4th) 397 (DIssanayake) OPSEU (Court Reporters) and Union of Court Reporters and Ministry of the Attorney General (1988) T/0064/84 (P.PIcher) OPSEU(Clerks Bailiffs and Intelpreters) and Ministry of the Attorney General (1988) T/55/84 (P.PIcher) OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General (1988), T/14/99 (P.PIcher) Re OttGyt,a Hunt and Golf Club Ltd and Hospitality and Service Trades Union, Local 261 (2003) 115 L.AC (4th) 225 (R Brown) Re Municipal Property Assessment COlporation and Ontario Public Service Employees Union (2002),109 L.AC (4th) 385 (Howe) 671122 OntarioLtd and Sagaz Industries Canada Inc (2001) 204 D.L R. (4th) 542 (S C C) Sands v Canada (Minister 25 of National Revenue- MNR. [1991] T C.J No 237 (T C C ) Wiebe Door Services Ltd Av Ministry of National Revenue [1986] 3 F C 553 (F C C C A) At most, the Umon argues that the Court Reporters are "dependent contractors" as defined In the Ontano Labour Relations Act. In the Umon's submIssIOn, the defimtIOns under the Ontano Labour Relations Act are Incorporated Into the Crown Employees Collective Bargaining Act (CECBA) It asserts that the court reporters are completely dependent upon the Mimstry for theIr court reportIng work, and must perform that work for the Mimstry AccordIngly the Umon submIts that the Court Reporters, when prepanng transcnpts, are dependent contractors who must be Included In the bargaInIng umt. In support, the Umon cItes to Adbo Contracting Company Ltd [1997] O.L.R.B Rep (Apnl) 197 and Dominion Dairies Ltd [1978] O.L.R.B Rep (Dec) 1083 Huntsville District Memorial Hospital [1009] OLRB Rep Nov./Dec 986 The Umon further contends that the "determInatIOns" of Independent contractor status by WSIB and Revenue Canada are not bIndIng on thIS Board and should not be gIven any weIght. It asserts that none of the cntena for Issue estoppel have been met, and that the letters are not a determInatIOn on the ments In support, the Umon relIes on OPSEU (Villella) and Ministry of Correctional Services (1997) GSB No 1662/96 (McKechme) The Umon also argues that thIS Board dId not determIne the Issue Involved In thIS heanng In OPSEU (Gareh) and Ministry of the Attorney General (2002), GSB No 1655/98 et al (R Brown) and that the pnncIple set forth In Blake et al. and Amalgamated Transit Union, GSB No 1276/87 (ShIme) therefore does not apply In support, It cItes to OPSEU (Arnold) and Ministry of Correctional Services (1993) GSB No 255/91 (DIssanayake) OPSEU (Watts) and Ministry 26 of Community and Social Services (1991), GSB No/ 1340/90 (Stewart) OPSEU (Lariviere) and Ministry of Community Safety and Correctional Services (2005) GSB No 2002-2124 (DIssanayake) (judIcIal reVIew pendIng) The Umon also argues that the Employer cannot "bargaIn" wIth Its employees Independently of the Umon. It cannot, In Its VIew have a separate "agreement" wIth Court Reporters for the work they perform as part of theIr Court Reporter Job When It does so the Umon submIts that the Employer has vIOlated Its nght of exclusIve representatIOn. It contends that the fact that the "bargaIn" IS determIned by tanff and regulatIOns does not exempt the Mimstry SInce the Mimstry has stIll bypassed the Umon and the tanffs conflIct WIth the overtIme provIsIOns In the collectIve agreement. In support, the Umon cItes to Re Regional Municipality of Hamilton-WentJ+orth Police Services Board and Hamilton-WentJ+orth Police Association (1992),30 L.AC (4th) 198 (McLaren) and Re Loyalist College of Applied Arts and Technology andOPSEU(2003) 225 D.L.R (4th) 123 (Ont. C.A) The Umon contends that the Public Service Act regulatIOns concermng "conflIct of Interest" precludes the very thIng that the Mimstry IS contendIng In thIS case - specIfically that employees can have an Independent busIness dIrectly related to theIr work for the Mimstry It argues that the very concept of the Court Reporters havIng an Independent busIness, supported and aided by the Mimstry creates an actual and perceIved conflIct of Interest proscnbed by the regulatIOns AccordIngly the Umon asks the Board to declare that the preparatIOn of transcnpts IS bargaInIng umt work, subJect to the collectIve agreement, and remaIn seIzed. 27 Employer The Employer contends that there are two functIOns performed by Court Reporters - the takIng of the record In court, and the productIOn of transcnpts, upon request. It agrees that the latter IS bargaInIng umt work but asserts that the former the productIOn of transcnpts, IS not. It asserts that, hIstoncally transcnpt preparatIOn has never been consIdered bargaInIng umt work and that whIle the Mimstry oversees that functIOn, as part of ItS responsIbIlIty to admInIster the courts, It does not do so as an "employer" It contends that, hIstoncally transcnpt productIOn has always been a separate contract of servIce In exchange for payment. CItIng Brown and Beatty Canadian Labour Arbitration at 5 1200 that bargaInIng umt work IS "work customanly performed by a member of the bargaInIng umt" the Mimstry argues that transcnpt productIOn IS not work hIstoncally performed by the bargaInIng umt. It asserts that the Court Reporters are not paid "wages" for prepanng transcnpts, but Instead receIve the applIcable tanff dIrectly from the ordenng partIes The Mimstry contends that It does not have an employment relatIOnshIp wIth the Court Reporters In relatIOn to the preparatIOn oftranscnpts In the Employer's VIew the Umon's posItIOn IS a mIcroanalYSIS of a lot of "lIttle thIngs" but mIsses the "bIg pIcture" that Court Reporters are not performIng bargaInIng umt work when produCIng transcnpts Indeed, It asserts that there IS no eVIdence otherwIse In lIght of the fact that transcnpt productIOn has not hIstoncally been consIdered bargaInIng umt work, the onus of establIshIng that It IS, the Mimstry submIts, rests wIth the Umon. In support It cItes to Gorsky Uspnch and Brandt, Evidence and Procedure in Canadian Labour Arbitration, Ch. 9 The Employer contends that transcnpt productIOn IS governed by the IndIVIdual players In the Courts - the JudIcIary the Crown, lawyers and lItIgants -not the Mimstry The Mimstry as employer does not reqUIre transcnpts to be produced and does not govern theIr productIOn. It 28 asserts that It plays no part In determInIng what transcnpt work IS reqUIred, the performance of the work, or payment for that work. Those matters, In argues, rest wIth the IndIVIdual players, not the Mimstry In ItS VIew transcnpt productIOn IS a separate busIness and has always been treated as such by the partIes It argues that the fact that the same people take the record and then produce the transcnpt does not mean that transcnpt productIOn IS bargaInIng umt work. It asserts that the Court Reporters are not employees as well as Independent contractors for the "same work" but for dIfferent work. The Mimstry agrees that transcnpt productIOn IS a "regulated" busIness, but asserts that the fact that the Mimstry regulates It, for all court reportIng, not Just In the Courts, does not transform thIS functIOn Into an employment relatIOnshIp The Mimstry argues that the Job descnptIOn specIfically carves out the functIOn of transcnpt productIOn by notIng that It IS done on the Incumbent's "own tIme" ThIS notatIOn, It submIts, comports wIth the realIty of the practIce It submIts that whIle there IS some lImIted eVIdence that Court Reporters have been allowed to type transcnpts dunng work tIme, the eVIdence IS InCOnsIstent and does not render the work bargaInIng umt work. It asserts that the Employer does not reqUIre or mandate the tYpIng oftranscnpts dunng work tIme, but allowed It, and that the Employer IS entItled to govern the day-tIme actIvItIes of Court Reporters wIthout convertIng such work Into bargaInIng umt work. The Court Reporters, the Mimstry submIts, were free to perform other work. SImIlarly It asserts that the oversIght role played by the Mimstry In regard to transcnpt productIOn does not render transcnpt productIOn bargaInIng umt work. In ItS VIew the Mimstry 29 plays an admInIstratIve assIstance/customer servIce role whIch, agaIn, does not transform transcnpt productIOn Into bargaInIng umt work. The Mimstry forcefully argues that the GSB has already determIned that transcnptIOn work IS not bargaInIng umt work In OPSEU (Gareh) supra In that case the Umon had contended that tIme spent produCIng transcnpts should be Included In determInIng hours for converSIOn purposes, and the GSB reJ ected that contentIOn. The Employer argues that In lIght of Gareh, the Issue of whether the productIOn of transcnpts IS bargaInIng umt work has been decIded, and that all of the reqUIrements for Issue estoppel have been met In thIS case - the same Issue, the same partIes, and a full and final decIsIOn on the ments It argues under that under the doctnne of Issue estoppel as well as the pnncIples set forth In Blake et al. supra, the Board IS not free to Issue a contrary rulIng In thIS case The Mimstry also relIes on OPSEU (Fazakas et al.) and Ministry of the Attorney General (2005), GSB No 1992-2964 (Petryshen) Further the Mimstry contends that under the tests used to determIne Independent contractor status, the Court Reporters are Independent contractors In relatIOn to the productIOn of transcn pts It asserts that most of the tools/eqUIpment used In transcnpt productIOn (as opposed to takIng the In-court record) are supplIed by the Court Reporter that the Court Reporter IS responsIble for the order InVOICIng, the locatIOn of the work, and may negotIate matters WIth an ordenng party It pOInts to the testImony of Ms Monn that she determIned what to charge for a dIskette, not the regulatIOn, and that she could determIne what to charge for a French transcnpt. It pOInts to the testImony of the Court Reporters that describe the transcnpts as "theIr" work, whIch belongs solely to them SIgmficantly In the Mimstry's VIew the Court Reporters have represented themselves, to Revenue Canada and the publIc, as beIng self-employed In the busIness of court reportIng. They have claimed that status and receIved ItS tax benefits In the 30 Mimstry's submIssIOn, these are the "bIg" thIngs that establIsh that transcnpt productIOn IS not bargaInIng umt work. In support of ItS posItIOn, the Mimstry cItes to Canadian Waste Services Inc and Us. WA. Local 343-6 (1999) 84 LAC (4th) 50 (H. Brown) Re Toronto Star and Southern Ontario NeYf,spaper Guild (1990) 18 L.AC (4th) 49 (Burkett) In terms of the Mimstry's oversIght of transcnpt productIOn, the Mimstry argues that It has no power to enforce the TranscnptIOn Manual or even the tanff The manual, It asserts, IS a compIlatIOn of relevant legIslatIOn, rules, practIce dIrectIOns and regulatIOns whIch governs all court reportIng, but the Mimstry cannot enforce It through dIscIplIne The most It can do the Mimstry contends, IS not assIgn a Court Reporter to court untIl hIS or her transcnpts are completed. That, In ItS vIew IS not "dIscIplIne" It acknowledges that transcnpt productIOn IS evaluated by the Mimstry but asserts that there IS no eVIdence of adverse Job consequences floWIng from a negatIve evaluatIOn oftranscnpt productIOn. Nor It contends, can the Mimstry enforce the tIme reqUIrements for transcnpts The ultImate responsIbIlIty the Mimstry asserts, lIes wIth the Court Reporter not the Mimstry Instead, It IS the JudIcIary In ItS control over court proceedIngs, whIch can order the Court Reporter to comply The Mimstry also contends that there IS no "dependent contractor" status under CECBA It argues that whIle the defimtIOns set out In the Labour Relations Act may be Incorporated Into CECBA, they do so under SectIOn 2 only "to terms used In thIS Act." The Mimstry asserts that the term "dependent contractor" IS not a term used In CECBA and therefore has no applIcabIlIty 31 The Mimstry also asserts that the conflIct of Interest regulatIOns cIted by the Umon are not applIcable In thIS sItuatIOn and cannot be relIed upon by the Board In the manner suggested by the Umon. It contends that, under the regulatIOns, It IS the role of the Deputy Mimster not the GSB to determIne If a conflIct eXIsts and that no such determInatIOn has been made In thIS case AccordIngly the Mimstry asks that the gnevances be dIsmIssed. Decision 1 Impact of the Gareh decision After carefully consIdenng the decIsIOn of the board In OP SEU (Gareh) and Ministry of the Attorney General, supra, I have determIned that It dId not decIde the Issue before me, and IS not bIndIng on my determInatIOn In thIS case The gnevor In that case, DebbIe Gareh, an unclassIfied court reporter alleged, among many other allegatIOns, that the Mimstry vIOlated ArtIcle 31 15 based on the employer's refusal to convert the gnevor to classIfied status In that case, the Board ImtIally noted that Ms Gareh had not worked full-tIme hours In the posItIOn for two years, as reqUIred under ArtIcle 31 15 The Umon argued, however that the tIme that she worked at an hourly wage was not all that should be consIdered, and that the Mimstry should have Included (1) hours for whIch the gnevor was demed paid standby duty and (2) hours for whIch the umon alleges she should have been paid an hourly wage for transcnbIng at home and (3) all the tIme spent by her transcnbIng eVIdence at home, even If she was not entItled to be paid an hourly wage for thIS work. 32 On the facts, the Board determIned that there was no eVIdence that Ms Gareh was ever demed paid standby duty nor was she demed paid transcnbIng work - i e tIme out of court dunng the work day spent transcribIng eVIdence and paid at an hourly rate AccordIng to the Board, the only relIable eVIdence In that case was that the practIce of grantIng paid transcnbIng weeks ended before 1994 The Board then ruled that even If she should have been granted standby duty or transcnbIng weeks on the occaSIOns she claims one or the other was demed, "she would stIll not be entItled to conversIOn." The Board also reJected the Umon's last contentIOn- that tIme spent transcnbIng at home should be counted for purposes of converSIOn even If she was not entItled to an hourly wage for thIS work. The Board reJected thIS contentIOn "because much transcnpt work IS produced at the request of thIrd partIes and paid for by them, wIthout any Involvement on the part of the employer" Finally the Board ruled that even If all hours devoted to the productIOn of transcnpt counted for the purpose of converSIOn the tIme spent would not support a claim for converSIOn. The Umon In Gareh dId not contend that produCIng the transcnpt was bargaInIng umt work for whIch employees should be paid hourly wages, IncludIng overtIme, as It contends here The only claim for paid transcnpt tIme was based on the fact that others were allowed to type whIle at work and receIved wages It was not a claim that tYpIng transcnpts IS bargaInIng umt work. That broader claim was not made and was not decIded. No mentIOn IS made In the decIsIOn that an Issue In dIspute was whether produCIng transcnpts was bargaInIng umt work. Rather the Umon argued a much more narrow Issue - that the tIme spent dOIng transcnpt work should be counted towards converSIOn "even If she was not entItled to an hourly wage for thIS work." The Board reJected that contentIOn "because much transcnpt work IS produced at the request of thIrd partIes and paid for by them, wIthout any Involvement on the part of the employer" In so rulIng, the Board dId not determIne that transcnpt work, under all cIrcumstances, IS not bargaInIng umt 33 work. The Issue actually addressed by the partIes and decIded by the Board IS not the same as the Issues argued and addressed In thIS case It IS related to the Issue In thIS case, but It IS not the "same Issue" AccordIngly I cannot find that Issue estoppel applIes here Nor IS thIS determInatIOn bIndIng upon me under Blake et al. supra 2. Is the production of transcripts bargaining unit work of employees, or the work of independent contractors? The partIes contested who bears the onus on these questIOns It IS my VIew that the Umon bears the onus on the Issue of whether transcnpt productIOn IS bargaInIng umt work, and the Employer bears the onus on whether productIOn of transcnpts IS the work of Independent contractors The outcome of thIS case, however IS not dependent on the Issue of onus because the eVIdence IS compellIng that transcnpt productIOn IS the work of the Court Reporters as employees, not as Independent contractors The collectIve agreement does not define the bargaInIng umt by type of work. It defines It as follows Article 1 - RECOGNITION lIThe Ontano PublIc ServIce Employees Umon (OPSEU) for the purpose of thIS Central CollectIve agreement IS recogmzed as the exclusIve bargaInIng agent for a bargaInIng umt consIstIng of all employees contaIned wIthIn the folloWIng umts 1) Umfied 2) CorrectIOnal 1 2 For greater certaInty such employees Include classIfied, term classIfied and unclassIfied employees, students, GO Temps and such other employees as may be mutually agreed 1 3 For greater certaInty thIS Central CollectIve Agreement shall apply to the employees In the bargaInIng umt descnbed In ArtIcle 1 1 34 The Court Reporters, both classIfied and unclassIfied, at Issue In thIS proceedIng are part of the Umfied bargaInIng umt. They are lIsted In the Office AdmInIstratIOn ClassIficatIOn Group Brown and Beatty Canadian Labour Arbitration SectIOn 5 1200 BargaInIng Umt Work, provIdes as follows, In relevant part Whether work falls outsIde the scope of the collectIve agreement may sImply be a matter of applYIng a defimtIOn contaIned In the collectIve agreement. More often, however collectIve agreements do not explIcItly define "bargaInIng umt work." In these cIrcumstances, the concept of "bargaInIng umt work" has generally been understood to mean work customanly performed by a member of the bargaInIng um t. " Where the collectIve agreement contaInS Job classIficatIOns and Job descnptIOns, they may conclusIvely demonstrate the scope of bargaInIng umt work. However In the absence of such classIficatIOns or descnptIOns, or where they are descnbed In general terms only eVIdence of past practIce may be reqUIred to determIne whether the work In questIOn IS bargaInIng umt work. In Re Worthington Cylinders of Canada COlp and United SteelYf,orkers of America, Local 9143 supra at p 255 a sImIlar defimtIOn was used. The arbItrator states [T]he concept of bargaInIng umt work IS umversally recogmzed as beIng fundamental to the operatIOn and Integnty of a collectIve agreement. SImply stated, "bargaInIng umt work" IS the work that IS normally performed by bargaInIng umt employees ThIS case presents a most unusual sItuatIOn. Normally the Issue IS whether non- employees, or employees outsIde of the bargaInIng umt, are performIng bargaInIng umt work. Here, the Issue IS whether work performed by bargaInIng umt employees IS bargaInIng umt work, or whether It IS work performed by employees but as Independent contractors The eVIdence clearly establIshes that Court Reporters have two Job functIOns - takIng the record and transcnbIng It upon request. ThIS IS eVIdent from the posItIOn descnptIOns and class 35 standards as well as the testImony of all of the wItnesses Court Reporters are not hIred solely to take the record. They must also transcnbe the record upon request. When a transcnpt IS eIther mandated or requested, the Court Reporter must prepare the transcnpt. It IS part and parcel of a Court Reporter's Job A Court Reporter cannot refuse the request to produce a transcnpt, but must seek permISSIOn from the Mimstry In order to have the transcnpt reassIgned. The Employer asserts that It IS the ordenng partIes - not the Mimstry - whIch reqUIres transcnpts to be produced and that the Mimstry does not govern theIr productIOn. Techmcally perhaps, that IS true The ordenng partIes are not usually the Mimstry (as the Employer) so the Mimstry may be said not to "reqUIre" that transcnpts be produced. Further the rules and regulatIOns, as set out In the vanous manuals, govern the productIOn of transcnpts But what thIS argument faIls to consIder IS that the Mimstry as the Employer ensures that the transcnpt orders get produced, as per the rules and regulatIOns The Mimstry plays a substantIal role In thIS Indeed, It the Mimstry that reqUIres Court Reporters, as part of theIr Job to produce accurate and tImely transcnpts as ordered by the JudIcIary the Crown, defense counsel and pnvate partIes The fact that the 1994 posItIOn specIficatIOn provIdes a notatIOn that transcnpts are generally prepared on the employee's "own tIme" does not assIst the Mimstry EarlIer posItIOn descnptIOns dId not contaIn that notatIOn, nor do the class standards Rather what all of the posItIOn specIficatIOns, the class standards and the testImony establIsh IS that the Court Reporters are expected and reqUIred to perform both functIOns As the TraInIng Manual states "The productIOn oftranscnpts IS probably the most Important duty you wIll have as a Court Reporter" 36 Court reporters are also evaluated on the qualIty and tImelIness of theIr transcnpts ThIS IS one of the "measureables" In terms of theIr Job performance, and the faIlure to produce accurate and tImely transcnpts "may become a performance Issue" Further Mr Uhlmann acknowledged that a Court Reporter could be termInated for not beIng able to produce accurate and tImely transcnpts, although he was not aware of any Court Reporters termInated for that reason. He further acknowledged that they may also be reassIgned to court whIch IS less lIkely to reqUIre a transcnpt. I also conclude that Court Reporters may be "dIscIplIned" for untImely transcnpts Although the Mimstry has not adopted tradItIOnal dIscIplInary responses to transcnptIOn Issues (such as verbal and wntten warmngs or suspensIOns), It has kept Court Reporters out of court untIl they complete theIr transcnpts In OPSEU (Gareh) supra, due to complaInts by the tnal Judge, the gnevor was reassIgned from a tnal whIch generated daIly transcnpts to summary convIctIOn appeals whIch generated no transcnpts, and as a result the gnevor "suffered a financIal loss as a result of beIng reassIgned." The Umon argued that she was "dIscIplIned" wIthout Just cause, and the Employer brought a non-sUIt motIOn on thIS Issue assertIng that the gnevor had not been dIscIplIned The Board stated that "[f]or the purpose of the non-sUIt motIOn, my only task IS to determIne whether the umon has establIshed a pnma facIe case that the gnevor was dIscIplIned. If dIscIplIne occurred, the employer would bear the onus of proVIng Just cause for It." Vice-Chair Brown then determIned that the reassIgnment "had no Impact on her hourly rate, but It dId depnve her of Income from transcnpt." He concluded For the purpose of determInIng whether she was dIscIplIned, I VIew thIS as a formal dIstInctIOn wIthout any substantIve dIfference The loss of transcnpt Income was a financIal penalty and therefore dIscIplInary In short, the Umon has establIshed a pnma facIe case of dIscIplIne" 37 In thIS case, the eVIdence shows that Court Reporters have been held out of court, i.e not assIgned to court, In order to complete untImely transcnpts If an unclassIfied Court Reporter IS assIgned to court, they would be paid theIr hourly rate If a classIfied Court Reporter IS assIgned to Court, that assIgnment may result In a transcnpt. Consequently there IS a financIal loss when a Court Reporter IS held out of court to complete transcnpts Under the ratIOnale of Gareh the loss of Income IS "a financIal penalty and therefore dIscIplInary" To be sure, It IS not one of the tradItIOnal forms of dIscIplIne, but It IS nonetheless a form of dIscIplIne wIth financIal consequences Therefore, based on Gareh I cannot agree wIth the Mimstry that It has not taken dIscIplInary actIOn In regard to Court Reporters' preparatIOn oftranscnpts I also find the fact that the Mimstry may umlaterally reassIgn the productIOn of a transcnpt to be sIgmficant. It IS sIgmficant because It demonstrates the Mimstry's control over the transcnpt process If the transcnpt work truly belonged to the Court Reporter the Mimstry would not have the power to reassIgn It umlaterally They would have no abIlIty to do so Yet the eVIdence shows that the Mimstry can, and has, reassIgned transcnpts wIthout the Court Reporter's consent. All of thIS - the fact that Court Reporters must produce transcnpts as part of theIr Job as Court Reporter are evaluated, may be dIscIplIned or even termInated In regard to transcnpt productIOn, and the fact that transcnpt work IS momtored by the Mimstry and may be umlaterally taken away by the Mimstry undermInes the Mimstry's contentIOn that It does not maIntaIn an employer/employee relatIOnshIp wIth Court Reporters In relatIOn to transcnpt productIOn. The Mimstry argues that It functIOns as a "coordInator" on behalf of the courts, the Crown and pnvate lItIgants, but the eVIdence establIshes that the Mimstry's functIOn and power IS sIgmficantly greater 38 CertaInly It IS true that the JudIcIary also maIntaInS control over the tImelIness of transcnpts and has Issued orders, dIrected at Court Reporters, to ensure the completIOn of transcn pts The JudIcIary's role, however IS not exclusIve and does not negate the Mimstry's Involvement. The Mimstry argues, however that hIstoncally Court Reporters have not been paid by the Mimstry to prepare transcnpts They are paid solely to take the record. It argues that, hIstoncally the preparatIOn oftranscnpts has never been vIewed as bargaInIng umt work and has eXIsted Independently governed by regulatIOn and tanff The eVIdence IS not nearly so clear The hIstoncal practIce regardIng whether Court Reporters have been paid to type transcnpts IS decIdedly mIxed, and vanes from court house to court house There IS sIgmficant eVIdence that Court Reporters have regularly prepared transcnpts dunng work tIme and have been paid wages, as set out In the collectIve agreement, for dOIng so ThIS Includes theIr beIng scheduled out of court to type as well as tYpIng dunng "down tIme" I would also note the one of the agreed facts In the case of OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General (1988) T/0064/84 (PIcher) was that "[s]taffreporters [classIfied court reporters] can type up transcnpts dunng theIr regular workIng hours and thereby receIve both salary and transcnpt fees for the same penod of work." ThIS agreed fact IS consIstent WIth the eVIdence In thIS case The Employer argues that the fact that It has allowed Court Reporters to type transcnpts dunng the work day does not mean that It reqUIred them to do so and does not convert theIr Independent work Into bargaInIng umt work. The practIce, however of allowIng transcnpt work 39 - whether tYpIng or related work - goes beyond sImply "allowIng" Court Reporters to do thIS There was eVIdence that Court Reporters have been "scheduled" to type at work. Further In many courts the practIce of allowIng Court Reporters to type and perform transcnpt-related tasks dunng down tIme IS routIne and extensIve There IS also eVIdence, however that the converse IS true - that Court Reporters prepare transcnpts on theIr own tIme and were not able to do so at work. That IS what led to the ongInal group gnevance AccordIng to Ms Clarke, she was never allowed to type transcnpts whIle at work. Ms Coombs testIfied that her abIlIty to type transcnpts at work In Milton stopped In 2003 One of the agreed upon facts In the Tnbunal decIsIOn, cIted above, states that freelance court reporters (now unclassIfied court reporters) "are occasIOnally paid theIr hourly rate whIle tYpIng up transcnpts, but they are usually reqUIred to do thIS tYpIng after scheduled workIng hours" AgaIn, thIS agreed fact IS consIstent WIth the eVIdence In thIS case There was no attempt, by eIther party to provIde an accurate pIcture concermng tYpIng transcnpts dunng work hours It appears that some courts allow It and some do not. There was no eVIdence by eIther sIde, of the percentage, on average of transcnpt work that must be done on Court Reporters' own tIme versus work tIme The eVIdence was InCOnclUSIve I would agree, however wIth the Mimstry wIth the exceptIOns noted above, that the general expectatIOn IS that Court Reporters are to prepare transcnpts on theIr own tIme and are paid a tanff for that work, not wages Further logIcally partIcularly for unclassIfied Court Reporters, a great deal of transcnpt work IS done on non-work tIme At present, there are far more unclassIfied court reporters than classIfied ones 40 One of the most dIfficult questIOns In thIS case IS the Impact - the legal sIgmficance - of that fact on the Issue of whether the preparatIOn of transcnpts IS bargaInIng umt work. Does thIS general practIce and expectatIOn define the scope of what IS bargaInIng umt work? Or IS bargaInIng umt work defined by the work reqUIred of and performed by bargaInIng umt employees? How does one determIne whether the preparatIOn and certIficatIOn of transcnpts IS "work that IS normally performed by bargaInIng umt employees?" BaSIC labour law provIdes for a umon to have the exclusIve nght to represent employees In the bargaInIng umt. In thIS case, the Court Reporters are "employees" of the Mimstry They are part of the bargaInIng umt represented by OPSEU as set out In CECBA and the collectIve agreement. The Umon has a statutory nght to represent Court Reporters In regard to theIr terms and condItIOns of employment for the work they perform Consequently I conclude that bargaInIng umt work must be defined by the work reqUIred of and performed by bargaInIng umt employees To rule otherwIse would undermIne the representatIOn nghts of OPSEU In regard to the Court Reporters The work reqUIred and performed by Court Reporters does not consIst solely of takIng the record. It Includes preparatIOn and certIficatIOn of the transcnpt. To not recogmze the Umon as the exclusIve representatIve of the Court Reporters for that second part of the Job vIOlates the Umon's statutory and collectIve agreement nghts ThIS IS true even through the Mimstry has not bargaIned IndIVIdually wIth the Court Reporters but has set theIr terms and condItIOns of employment through regulatIOn. The Umon's status as exclusIve bargaInIng agent reqUIres the Mimstry to bargaIn wIth the Umon In regard to the work performed by the Court Reporters Re Regional Municipality of Hamilton-WentJ+orth Police Services Board and Hamilton-WentJ+orth 41 Police Association, supra Re Loyalist College of Applied Arts and Technology and OPSEU supra. The fact that, hIstoncally the partIes have not bargaIned over thIS aspect of the Court Reporters' work does not forever preclude the Umon from raiSIng thIS Issue, or lImIt the scope of what IS bargaInIng umt work. In the first rulIng In thIS case concermng the tImelIness of the group gnevance, I determIned that the group gnevance "alleges an ongOIng faIlure to comply wIth the overtIme reqUIrements set forth In the collectIve agreement" and was therefore a "contInuIng gnevance" The Umon polIcy gnevance alleges that "[t]he work assocIated wIth the preparatIOn and productIOn of transcnpts and certIfYIng them as accurate IS bargaInIng umt work to whIch the collectIve agreement applIes" It alleges an ongOIng faIlure to comply wIth the collectIve agreement, IncludIng the recogmtIOn clause and the wage and overtIme provIsIOns, among others The Idea behInd a "contInuIng gnevance" IS that a umon whIch does not challenge an alleged vIOlatIOn of the collectIve agreement Immediately or even for a sIgmficant penod of tIme does not lose the nght to challenge It If the allegatIOn Involves a "recurrent oblIgatIOn" or a "recurrent duty" under the collectIve agreement, as opposed to a sIngle IncIdent wIth ongoIng consequences The wage and overtIme provIsIOns are "recurrent oblIgatIOns" as IS the recogmtIOn clause As a result, wIth certaIn exceptIOns, the Umon's faIlure to challenge the Employer's actIOns does not preclude It from dOIng so It also does not serve to amend the scope of what IS bargaInIng umt work. 42 SIgmficantly the Employer dId not contend that the Umon abandoned Its bargaInIng nghts In relatIOn to the preparatIOn oftranscnpts 1 It asserts the Umon has no such nghts In thIS case In my VIew the Employer could not have contended that the Umon abandoned ItS bargaInIng nghts Terms and condItIOns of employment have been negotIated by the Umon on behalf of Court Reporters They were not, as a group "abandoned" by the Umon, thereby potentIally negatIng the Umon's nght to represent them As noted, the Umon has the statutory and contractual nght to represent them. Instead, for a substantIal penod of tIme the Umon may be said to have accepted the compensatIOn terms establIshed by the tanff Indeed, dunng cloSIng arguments, counsel for the Umon stated that the Umon dId not complaIn untIl 1990/1991 because the maJonty of employees were tYpIng transcnpts at work and receIved the tanff, a "specIal bonus" so there was no Issue In an earlIer rulIng In thIS case, I concluded that "there clearly was acqUIescence by the Umon dunng the penod from 1996 to August 2003 " The sItuatIOn IS akIn to a umon whIch has not negotIated over safety matters because It IS satIsfied wIth the statutory protectIOns and provIsIOns of the OccupatIOnal Health and Safety Act. The fact that the umon dId not negotIate safety Issues for a penod of tIme does not preclude It from dOIng so LIkewIse, the fact that, hIstoncally the Umon has not sought to negotIate regardIng the preparatIOn of transcnpts, leavIng compensatIOn to the tanff, does not preclude It from dOIng so and does not mean that the preparatIOn oftranscnpts IS not bargaInIng umt work. 1 Rather, in its earlier motion to dismiss, the Ministry argued that the Union had abandoned the 1990 grievances and could not thereafter grieve the same issue. That is a completely different argument. The Employer raised the same argument in closing. In light of my earlier decision, I need not address it here 43 The decIsIOn In Canadian Waste Services Inc and Us. WA. Local 343-6 supra, relIed on by the Mimstry IS dIstIngUIshable In that case, the umon, whIch represented employees In the collectIOn of resIdentIal waste, alleged that the employer Improperly contracted out resIdentIal recyclIng work. The arbItrator dIsmIssed the gnevance concludIng that resIdentIal recyclIng had never been work performed by members of the bargaInIng umt. It was not the same work as resIdentIal waste and was a separate form of busIness, USIng dIfferent eqUIpment. The decIsIOn IS dIstIngUIshable because, In that case, the employees performIng recyclIng work were not the same employees that collected resIdentIal waste and bargaInIng umt employees had not performed that work or sImIlar work In the past. In thIS case, the employees takIng the record and produCIng the transcnpt are one and the same, and both aspects are part of the same Job The Employer asserts, however that although transcnpt preparatIOn IS performed by Court Reporters, It was not done by Court Reporters as bargaInIng umt employees Instead, It argues that they have done thIS work as Independent contractors In ItS submISSIOns, the Umon acknowledges that even If transcnpt productIOn IS bargaInIng umt work, the questIOn becomes whether that work has been properly contracted out. For the reasons set forth below I conclude that when the Court Reporters prepare and certIfy transcnpts, they do so as employees, not Independent contractors The pIvotal case on thIS Issue IS the decIsIOn of the Labour RelatIOns Tribunal In OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General T/0064/84 (P PIcher), Issued on September 20 1988 That case Involved a determInatIOn of whether free- 44 lance court reporters were "Crown employees" under CECBA, or Independent contractors as alleged by the Mimstry The Tnbunal determIned that the freelance court reporters could be dIvIded Into three categones 1 Freelance court reporters who work exclusIvely for the Mimstry 2 Freelance court reporters who wIth the permISSIOn of the Mimstry make theIr servIces avaIlable to clIents other than the Mimstry 3 Freelance court reporters who freely make theIr servIces avaIlable to other clIents All three groups were found to be "employees" not Independent contractors The facts, whIch were submItted by way of an agreed statement of fact, were remarkably sImIlar to the eVIdence In thIS case They state that the Court Reporters oblIgatIOn "IS two-fold 1) the makIng of the record In Court; 2) the productIOn of transcnpts therefrom as reqUIred." They were "subJect to the dIrectIOn of the ChIef JustIce or ChIef Judge of a Court, and to a presIdIng Judge or Master whIle the Court IS In sessIOn." The Mimstry had publIshed "a manual of Court ReportIng" to maIntaIn umform standards, whIch was "a comprehensIve gUIde to the Acts and RegulatIOns govermng Court reportIng and IS contInually updated by revIsed pages and by dIrectIve memos Issued from the Manager to Court reporters In general" They were subJect to sanctIOns by the Mimstry for faIlure to follow these reqUIrements SanctIOns Included assIgnment to less desIrable courts, removal from the preferred lIst, removal from the qualIfied lIst, faIlure to receIve favourable consIderatIOn for classIfied posItIOns and admomtIOn by the Court AdmInIstrator In respect of conduct or decorum 45 In regard to transcnpts, the agreed facts state that "If a transcnpt IS reqUIred the tYpIng may or may not be done at eIther government offices or at the home of the freelance reporter In any event payment IS made on a per page basIs " Rates of pay were fixed by regulatIOn. Further In regard to transcnpts, the facts provIded as follows 23 [A]ll Court Reporters (whether staff or freelance) are oblIged by regulatIOn to type up requested transcnpts and to charge the transcnpt fee set by regulatIOn. Staff reporters can type up transcnpts dunng theIr regular workIng hours and thereby receIve both salary and transcnpt fee for the same penod of work. Freelance reporters, except those that work exclusIvely for the Mimstry have to type transcnpts at tImes when they are not reCeIVIng any other payment. Such tYpIng may be done eIther at the home of the freelance reporter or at the Court facIlIty Freelance reporters employed exclusIvely by the Mimstry are occasIOnally paid theIr hourly rate whIle tYpIng up transcnpts but they are usually reqUIred to do thIS tYpIng after scheduled workIng hours Many freelance reporters use eqUIpment owned by the ProvIncIal Government whIch Includes records, transcnbers, steno- masks, steno-typers and steno-books 24 All Court Reporters are gIven access to Mimstry photocopIers for makIng transcnpt copIes, and all reporters must pay a usage charge of five cents per ImpreSSIOn for those copIes The pnntIng of transcnpts for appeals IS done for the Mimstry of Government ServIces and reporters are not charged for such pnntIng whether they be staff reporters or freelance reporters The Tnbunal applIed a number of tests for determInIng Independent contractor status, as set out In an earlIer decIsIOn InvolvIng the employee status of court Interpreters, clerks, bailIffs and staff at Small Claims Court In OPSEU and MinistlY of the Attorney General, T/55/84 and T/65/84 (P PIcher) Issued June 24 1988 These tests Included the control test, the fourfold test (control, ownershIp of tools, chance of profit and nsk of loss) the 'whose busIness IS It' test; the orgamzatIOn test, the statutory purpose test and the AlgonquIn LISt. In terms of the first group of freelance court reporters, the Tnbunal concluded that they exhIbIted none of the hallmarks of Independent contractor and "bear all the earmarks of employees" The Tnbunal stated at p 13 46 They are not carryIng on theIr own busInesses for themselves but rather are performIng court reportIng tasks to enable the Mimstry to fulfill ItS legIslatIve mandate of supenntendIng the admInIstratIOn of the courts In addItIOn, these court reporters are subJect to the dIrectIOn and control of the Mimstry They work full tIme and exclusIvely for the Mimstry at an hourly rate that IS set by regulatIOn. FaIlure to attend at work on a regular basIs and to perform work properly wIll result In the ImposItIOn by the Mimstry of specIfic ItemIzed sanctIOns As well they are subJect to memos of a dIrectIve nature that are Issued by the manager to the court reporters and are Inserted Into the Manual of Court ReportIng. If they faIl to act they are subJect to sanctIOn by the Mimstry They are not at lIberty to establIsh theIr own polIcIes and procedures to enhance theIr servIce as they see fit. They are oblIged by regulatIOn to type up requested transcnpts and to charge a transcnpt fee set by regulatIOn. There IS lIttle eVIdence of entrepreneunal actIvIty They have one relatIOnshIp wIth one "purchaser" and not a number relatIOnshIps wIth dIverse purchasers as would be expected of an Independent contractor The Tnbunal concluded that "[t]hey are employed In the servIce of the Crown and are employees wIthIn the meamng ofC.E C.B.A" In terms of the second group they too were determIned to be "employees" They were "subJect to the Mimstry's control over the manner and means of the performance of the work" and "are not carryIng on Independent busIness of theIr own as would be the sItuatIOn for an Independent contractor but rather are part of the Mimstry's busIness of admInIstenng the courts" In the Tnbunal's VIew they were Integrated Into the Mimstry's busIness and many used eqUIpment owned by the Mimstry The Tnbunal concluded at p 16 GIven the hIgh degree of control exerted by the Mimstry over the manner In whIch theIr work IS done gIven the restnctIOns placed on theIr abIlIty to do work for clIents outsIde of the mImstry gIven theIr substantIal IntegratIOn Into the Mimstry's busIness of admInIstenng the Courts, we must conclude that the court reporters In the second group are employees, not Independent contractors, notwIthstandIng that they do not work exclusIvely for the Mimstry F or sImIlar reasons, the thIrd group of freelance court reporters were also found to be "employees" 47 Although thIS case dId not determIne whether the preparatIOn of transcnpts was bargaInIng umt work, the Tnbunal dId consIder the freelance court reporters' role In regard to transcnpts In determInIng whether they were "employees" or Independent contractors It IS hIghly InstructIve In determInIng whether the preparatIOn of transcnpts IS the work of the Court Reporters as "employees" as argued by the Umon, or "Independent contractors" as argued by the Employer GIven the sImIlanty of the facts In that case to the facts In thIS one, I find that all of the conclusIOns of the Tnbunal are equally applIcable here The case law supplIed by the partIes revIew the tests used by arbItrators and labour relatIOns boards In determInIng "Independent contractor" status, and they Include the tests utIlIzed by the Tnbunal In 671122 Ontario Ltd and Sagaz Industries Canada Inc et al [2001] 204 D.L.R (4th) 542 (S C C) the Supreme Court of Canada outlIned the tests for determInIng whether a person was an employee or an Independent contractor In a VIcanous lIabIlIty sItuatIOn, and Included the tests utIlIzed by the Tnbunal In a decIsIOn by JustIce MaJor the court determIned that "[a]lthough there IS no umversal test to determIne whether a person IS an employee or an Independent contractor [t]he central questIOn IS whether the person who has been engaged to perform the servIces IS performIng them as a person In busIness on hIS own account." He contInued In makIng thIS determInatIOn, the level of control the employer has over the worker's actIvItIes wIll always be a factor However other factors to consIder Include whether the worker provIdes hIS or her own eqUIpment, whether the worker hIres hIS or her own helpers, the degree of financIal nsk taken by the worker the degree of responsIbIlIty for Investment and management held by the worker and the worker's opportumty for profit In the performance of hIS or her tasks Also sIgmficant was the "orgamzatIOn" or "IntegratIOn" test, In that "under a contract of servIce, a man IS employed as part of the busIness, and hIS work IS done as an Integral part of the 48 busIness, whereas, under a contract for servIces, hIS work, although done for the busIness, In not Integrated Into It but IS only accessory to It." Entrepreneunal actIvIty - seekIng and servICIng other clIents - has also been consIdered. Re Toronto Star and Southern Ontario NeYf,spaper Guild, supra Sands v Canada (Minister of National Revenue MNR.) supra. Under all of these tests, I conclude that the Employer has faIled to sustaIn ItS onus that the Court Reporters are Independent contractors when they prepare transcnpts The preparatIOn of transcnpts IS essentIal to the Mimstry's role In supenntendIng and admInIstenng the courts Transcnpt productIOn holds a key place In the admInIstratIOn of JustIce In Ontano Court reporters are Integral to thIS task. The Mimstry exerts substantIal control over the manner and means of performIng the work. It IS true that the "manner and means" oftranscnpt work, as set out In the vanous manuals, IS the product of legIslatIOn, regulatIOns, practIce dIrectIves and polIcIes Yet the Mimstry enforces the manual, and thIS constItutes control In OPSEU and Ministry of the Attorney General, T/55/84 and T/65/84 (PIcher), the Tnbunal addressed the Issue of whether clerks, bailIffs and other staff who worked In the Ontano Small Claims Court were "employees" or Independent contractors The Tnbunal ruled that they were "employees" and reJ ected the Mimstry's argument that the controls placed on the clerks and bailIffs through legIslatIOn, rules and umform polIcIes and procedures, desIgned to promote umformIty and umversalIty In the court system should be dIstIngUIshed from the tradItIOnal control tests that have been used to dIStIngUISh employees from Independent contractors There, as wIth the Court Reporters, the 49 Mimstry had created a detaIled manual whIch elaborated the rules and set out the vanous polIcIes and procedures whIch had to be followed. The Tnbunal stated, at pp 18-19 The Mimstry of the Attorney General exerCIses substantIal control over the manner and means by whIch the clerks and bailIffs perform theIr work The Mimstry of the Attorney General has publIshed a detaIled Manual whIch elaborates the rules and sets out polIcIes and procedures that must be followed by all the court offices In provIdIng theIr servIces The clerks and bailIffs are not at lIberty to establIsh theIr own polIcIes and procedures to enhance servIce as they see fit. They must follow the dIctates set by the Rules CommIttee and publIshed In the Manual There IS mImmal freedom for the clerks and bailIffs regardIng how they perform theIr work. The scope for creatIvIty IS tIghtly lImIted. The same type of control IS eVIdent In the case of Court Reporters The Mimstry momtors the productIOn of transcnpts and evaluates Court Reporters on theIr productIOn. It can "dIscIplIne" (keep a Court Reporter out of court) and even termInate for faIlure to produce proper transcnpts The fact that thIS power IS not used IS Irrelevant. What matters IS that the Mimstry has the power to do so The eVIdence shows, moreover that the Mimstry has created two "certIfied" panels for Court Momtors, the "A" and "B" panels The "A" panel grandfathered In Court Reporters who prepared transcnpts In the pnor year The "B" panel IS for new Court Momtors after they have been traIned to prepare transcnpts and are deemed "qualIfied" by the Mimstry The Mimstry has the power to place Court Momtors who are deemed qualIfied on the "B" lIst. Presumably the Mimstry can also remove Court Momtors from thIS lIst. ThIS IS exactly the same type of sanctIOn that the Tnbunal noted that the Mimstry possessed In determInIng that the freelance court reporters were "employees" not Independent contractors LIkewIse, the Mimstry can Impose other sanctIOns that the Tribunal relIed upon, such as reassIgn a court reporter to a less desIrable court and admomsh the court reporter In respect to theIr conduct or decorum 50 Further the Court Reporters' transcnpt work IS exclusIvely from the tnals they are assIgned to by the Mimstry They do not perform other transcnptIOn work Independent of these tnals ThIS IS true for both the classIfied and unclassIfied court reporters SInce the "on call, as reqUIred" relatIOnshIp leaves lIttle possIbIlIty for other work. ThIS sItuatIOn substantIally lImIts the Court Reporters' "chance of profit and nsk of loss" Further the Mimstry assIsts WIth the collectIOn of transcnpt fees and when a problem anses, the Mimstry acts as a "mIddle man" and engages In a "customer servIce" functIOn to address the Issue The Mimstry asserts that the Court Reporters have numerous clIents - the JudIcIary the Crown, defense counsel and pnvate partIes The eVIdence showed that the Mimstry essentIally orders and pays for transcnpts on behalf of the JudIcIary As Mr Uhlmann stated, "for all Intents and purposes, It IS the Mimstry that orders the transcnpt on behalf of the JudIcIary" The Mimstry IS also very Involved In that process In regard to the Crown Attorneys But more Importantly the Tnbunal's conclusIOn that Court Reporters "have one relatIOnshIp wIth one 'purchaser' and not numerous relatIOnshIps wIth dIverse purchasers" IS stIll true ThIS clearly refers to the fact that transcnpt orders anse solely from theIr work In the courts, not from other sources So they may have numerous "clIents" but all of the work stems exclusIvely from theIr Job as a Court Reporter In the courts The Court Reporters do not have the freedom to reJect a transcnpt order or work only when they wIsh. They have no control over the amount of transcnpt work they receIve and can not SOlICIt such work. Although they can hIre tYPIStS to help them type they must certIfy the transcnpt. That functIOn cannot be delegated. The Court Reporters are not entrepreneunal - they do not self-promote advertIse, SOlICIt clIents or busIness The Mimstry provIdes many of the 51 tools, supplIes and eqUIpment used by the Court Reporters The Mimstry supplIes the paper the covers, the bInder and bIndIng. The Mimstry assIsts WIth takIng the orders, collectIng the deposIt, obtaInIng the nght tapes and logs, delIvenng the transcnpt and collectIng the fees Court Reporters cannot determIne the fees charged for theIr servIces, and are reqUIred by the Mimstry to conform to the tanff All of these factors demonstrate that the preparatIOn oftranscnpts IS not performed by "Independent contractors" as the Mimstry asserts The Mimstry also asserted that the Court Reporters can negotIate aspects of transcnpt productIOn wIth the clIent. Counsel for the Umon suggested, In cloSIng argument, that callIng what transpIres a "negotiatIOn" IS a stretch, and I agree The eVIdence showed that the only aspects that may be negotIated are when the transcnpt IS to be done and even then there are reqUIrements and deadlInes that must be followed, and the method of delIvery although most transcnpts are pIcked up by the ordenng party at the court house There are gaps In the tanff but the eVIdence showed that the Court Reporters have no room to negotIate matters not covered by the tanff such as an expedIte fee or a transcnpt on dISk. Some of the wItnesses mIght belIeve that they had the power to determIne these thIngs, but the eVIdence shows that they do not. The Mimstry's posItIOn IS that the Court Reporters may only charge what IS In the tanff and that It IS Illegal to do otherwIse The fact that the Court Reporters, In theIr tax returns, descnbe themselves as reCeIVIng "professIOnal" or "busIness" Income from court reportIng IS not dISposItIve of thIS Issue The Court Reporters must, by law report all of theIr Income After the early 1990s, the Employer no longer paid the Court Reporters transcnpt fees for the JudIcIary and Crown on theIr paycheques and T4s, but Issued T4-A forms Other than "employment Income" for whIch they receIved a T4 they had no chOIce but to lIst theIr court reportIng Income as professIOnal or busIness 52 Income HavIng done so they were entItled to the deductIOns permItted by law for expenses Incurred In earmng that Income That does not make them "Independent contractors" any more than theIr testImony that they dId not VIew themselves as havIng a separate "busIness" makes them "employees" The Issue IS one of fact. Sands v Canada (Minister of National Revenue - MNR.) supra The facts of thIS case IndIcate that Court Reporters are employees, not Independent contractors In thIS regard, I do not find the determInatIOns of the WSIB and Revenue Canada whIch were provIded at the heanng to be partIcularly useful, and both sIdes agreed they were not bIndIng on me OP SEU (Villella) and Ministry of the Solicitor General & Correctional Services (1997), GSB No 1662/96 (McKechme) Because of my conclusIOn that Court Reporters are employees when prepanng transcnpts, not Independent contractors, I do not need to rule on the Umon's alternatIve arguments that the Court Reporters are "dependent contractors" or on ItS contentIOns concernIng the conflIct of Interest regulatIOns 53 Conclusion 1 I determIne that the preparatIOn and certIficatIOn of transcnpts IS bargaInIng umt work of the Court Reporters, and so declare I wIsh to emphaSIze that, at thIS pOInt, I am only decIdIng whether the preparatIOn and certIficatIOn of transcnpts IS bargaInIng umt work. All Issues regardIng the ImplIcatIOns of thIS findIng are referred back to the partIes, and I wIll remaIn seIzed. Issued at Toronto thIS 27th day of July 2006 :brutt61