HomeMy WebLinkAbout2569 Crown & ALOC, AMAPCEO, OCAA, OPSEU & PEGO, decision on admission of evidence2569/C
IN THE MATTER OF ARBITRATION
BETWEEN:
Association of Law Officers of the Crown
(ALOC)
Association of Management, Administrative and
Professional Crown Employees of Ontario
(AMAPCEO)
Ontario Crown Attorney’s Association
(OCAA)
Ontario Public Service Employees’ Union
(OPSEU)
Professional Engineers Government of Ontario
(PEGO)
AND
His Majesty the King as represented by the Treasury Board Secretariat
(TBS)
Grievances by ALOC, AMAPCEO, OCAA, OPSEU and PEGO concerning
the National Day for Truth and Reconciliation
Grievance Settlement Board File No. 2022-8790
(OPSEU Grievances 2022-0999-0013, -0014, -0018, -0019)
Christopher Albertyn - Sole Arbitrator
APPEARANCES
Counsel for ALOC, AMAPCEO and PEGO:
Marisa Pollock
Karin Galldin
2569/C
Amy Chen
GOLDBLATT PARTNERS LLP
Counsel for OCAA:
Paul Cavalluzzo
Balraj Dosanjh
CAVALLUZZO LLP
Counsel for OPSEU:
Jorge Hurtado
Leila Gaind
MORRISON WATTS
Counsel for the Crown in Right of Ontario:
Lisa Compagnone
Maria-Kristina Ascenzi
MINISTRY OF THE ATTORNEY GENERAL
TREASURY BOARD SECRETARIAT
Legal Services Branch
Hearing held by videoconference on April 28 and 30, 2023.
Decision on Admission of Evidence issued on May 2, 2023.
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DECISION ON ADMISSION OF EVIDENCE
The Issue
1. The trade union parties, described more fully below, represent public sector
employees of the Crown in Right of Ontario. They have filed grievances that raise
a common question: “whether the National Day for Truth and Reconciliation on
September 30 falls within the holiday entitlements set out in their respective
collective agreements” [para. 9 of the Agreed Statement of Facts].
2. The grievances were filed in response to the Employer’s decision not to
recognize the National Day for Truth and Reconciliation (NDTR) as a holiday
under the unions’ respective collective agreements [para. 42 of the Agreed
Statement of Facts].
3. The parties agree that the issue to be determined first – “the common issue”
– is “the interpretive issue of whether the National Day for Truth and Reconciliation
is a holiday for purposes of the holiday provisions of the collective agreements in
issue” [para. 44 of the Agreed Statement of Facts].
The Issue for this Decision
4. The Employer has sought, as part of addressing the issue of the entitlement
to the NDTR as a holiday under the collective agreements, to present evidence
(described below) which, it argues, is relevant and probative. The unions contend
that the evidence should be treated as inadmissible. This decision addresses the
issue.
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Jurisdiction
5. The parties agreed to join their grievances and to have them heard and
determined by me [para. 43 of the Agreed Statement of Facts].
6. Arbitration of grievances by AMAPCEO, OPSEU and PEGO is governed
by the Crown Employees Collective Bargaining Act, 1993, SO 1993, c 38
(CECBA). Under section 7(3), the Grievance Settlement Board (GSB) provides
final and binding settlement by arbitration of all grievances. For the grievances by
these unions, I have jurisdiction in my capacity as an arbitrator of the GSB, with its
imprimatur.
7. Arbitration of grievances by ALOC and OCAA is governed by the
Arbitration Act, 1991, SO 1991, c 17. I am appointed pursuant to the provisions
thereof.
8. The parties accept that, for the purposes of exercising an arbitrator’s
discretion, I am governed by the provisions of the Labour Relations Act, 1995, SO
1995, c 1, Sch A (LRA), particularly section 48(12) thereof, as read with section 7
of CECBA.
9. For the purposes of the decision made herein, Section 48(12)(f) of the LRA
empowers an arbitrator (or chair of an arbitration board):
(f) to accept the oral or written evidence as the arbitrator or the
arbitration board, as the case may be, in its discretion considers
proper, whether admissible in a court of law or not;
10. The parties accept that I have the power to admit the evidence the Crown
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wishes to present. The question is whether I should exercise my discretion to do so.
The Parties
11. The Agreed Statement of Facts describe the parties as follows:
The Parties
1. The Ontario Public Service Employees Union/ Syndicat des employés de
la fonction publique de l’Ontario (“OPSEU/SEFPO”) is the exclusive
bargaining agent for Crown Employees who work in various provincial
ministries and agencies for the government of Ontario, and who are
employed within two OPSEU/SEFPO bargaining units (Unified and
Correctional) as set out in Article 1- Recognition of the Unified Bargaining
Unit Collective Agreement and Correctional Bargaining Unit Collective
Agreement.
2. AMAPCEO is the exclusive bargaining agent of, inter alia, professional
employees who work directly for the government of Ontario.
3. The Professional Engineers Government of Ontario (“PEGO”) is the
exclusive bargaining agent of professional engineers and Ontario Land
Surveyors, engineers in training, and surveyors in training, who work
directly for the government of Ontario.
4. The Association of Law Officers of the Crown (“ALOC”) is the exclusive
bargaining agent of “lawyers and articling students employed by the
government of Ontario to provide civil legal services” (ALOC/OCAA
Collective Agreement Article 1.4, see Documents, Tab A).
5. The Ontario Crown Attorney’s Association (“OCAA”) is the exclusive
bargaining agent of “lawyers and articling students employed in their
professional capacity in the Criminal Law Division including fee-for-service
lawyers who are either employees or dependent contractors as defined by
the Labour Relations Act” (ALOC/OCAA Collective Agreement Article 1.3,
Tab A).
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6. The labour relations of OPSEU, AMAPCEO and PEGO are governed by
the Crown Employees Collective Bargaining Act and through that Act, the
Labour Relations Act.
7. The labour relations of ALOC and OCAA are governed by collectively
bargained Framework Agreements and the Arbitrations Act.
8. The Crown in Right of Ontario (the “Employer”) is the employer of all of the
employees covered by the collective agreements referred to above. The
Employer is party to separate collective agreements with each of
AMAPCEO, OPSEU, and PEGO. The collective agreement of ALOC and
OCAA is a separate agreement that is jointly bargained.
The evidence the Employer wishes to present
12. The Employer has described the evidence it wishes to present as follows
[this being an extract from the Employer’s written submissions]:
8. The Employer intends to call the ADM of IAO [Assistant Deputy Minister
of the Ministry of Indigenous Affairs], Rebecca Ramsarran, as a witness. A will-say
statement of her anticipated evidence was disclosed to the Unions on GSB File
No. 2022-8790 3 April 6, 2023, and they will have the opportunity to cross-
examine her. To clarify, this evidence is not extrinsic evidence, and the Employer
will not be relying on it as such.
9. ADM Ramsarran’s proposed evidence will speak to her involvement in
the planning, organization, and follow-up of the NDTR within the OPS.
10. This involvement included engaging with Indigenous partners to
understand their objectives and expectations for how the day should be
commemorated (a day for learning and reflection), providing advice to the
Treasury Board Secretariat (“TBS”) on how to observe NDTR, working with
Cabinet Office (“CO”) and TBS to develop education and learning approach to the
OPS observance, supporting in developing employer materials for management,
coordinating and participating in IAO led events, and providing feedback to CO
and TBS on the comments received from OPS staff regarding NDTR activities and
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events.
11. The proposed evidence highlights that once NDTR was designated as a
federal public holiday, feedback on how to treat the day in Ontario was sought
from Indigenous partners. This feedback continued up to September 30, 2022,
and is still ongoing.
12. ADM Ramsarran’s proposed evidence will highlight IAO’s understanding
that most of the feedback was that the day should not be given as a paid holiday,
and instead the effort should be focused on learning, reflection, and
reconciliation.
13. Once this feedback was obtained from Indigenous partners, the decision
was made to treat September 30, 2022, as a day for learning and reflection.
14. Thereafter, IAO was heavily involved in the crafting of education and
training materials on how the various ministries, Secretary of Cabinet, Minister of
IAO, and Premier, should plan for September 30, 2022.
13. OPSEU has explained that if the Employer is permitted to present the above
evidence, it will want to present its own evidence from its indigenous members,
and others.
14. The other unions have reserved their right to call evidence on the
methodology of the Employer’s consultation process and on the conclusions
reached by the Employer in its consultations, if that becomes necessary.
The parties’ submissions and analysis
15. The Employer wishes to present Assistant Deputy Minister Ramsarran’s
evidence so that I appreciate the investigation and consultations the Ministry of
Indigenous Affairs undertook to determine how best to commemorate the National
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Day for Truth and Reconciliation as a day for learning and reflection. The Employer
wants to show that – based on the feedback from the consultations with Indigenous
groups – the most appropriate way for Ontario to treat the day was not as a paid
holiday, but as a day of work with tributes focused on learning, reflection, and
reconciliation. The Employer wishes to show, through ADM Ramsarran’s
evidence, that the input received by the Crown led it to the decision not to treat
September 30, 2022 (and, presumably, ongoing in 2023 and beyond) as a paid
holiday for the OPS staff represented by the unions.
16. The focus of the Employer’s argument is on Section 48(12)(f) which gives
an arbitrator the discretion to admit such evidence, even if the evidence might not
be admissible in a court of law. Employer counsel suggest that admitting the
evidence for the limited purpose of understanding the Employer’s motivation for
its decision not to treat the NDTR as a paid holiday will make the hearing more
efficient and so expedite the case.
17. Employer counsel refer to Toronto District School Board v Canadian Union
of Public Employees, Local 4400, 2015 CanLII 45426 (ON LA) (Stout). In that case
the employer wished to rely on documents which it said provided context for the
circumstances arising from the previous round of bargaining. Arbitrator Stout
admitted the documents and explained that an arbitrator may do so with the
intention of later determining the relevance of the evidence adduced from the
documents and its weight, “so long as no party is prejudiced by admitting such
evidence” [para. 93].
18. The Employer refers also to Re City of Toronto and Canadian Union of
Public Employees, Local 79, 1981 CanLII 1660 (ON SC) [upheld on appeal: 1982
CanLII 2229 (ON CA)]. In that case the Divisional Court set aside an arbitration
decision because the board of arbitration had “unduly restricted” its powers by
excluding a particular report.
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19. The Employer refers also to two GSB decisions, Ontario (Ministry of
Community Safety and Correctional Services) and O.P.S.E.U. (Gillis) (Re), 2005
CanLII 94221 (ON GSB) (Abramsky) and Ontario Public Service Employees
Union (Ewing) v Ontario (Community Safety and Correctional Services), 2011
CanLII 83698 (ON GSB) (Briggs).
20. In the Gillis case, Arbitrator Abramsky admitted an investigator’s report
because the employer had relied on it to discipline the grievors. She made the point
that the union was free to “attack and challenge [the investigator’s findings and
conclusions] as incomplete, erroneous or improper, among other potential
challenges.” [p. 208 of the L.A.C. report]. Arbitrator Abramsky said [at p. 210],
that “the fact that an arbitrator admits evidence which, at the end of the day, is given
no weight does not taint the arbitration process.” On the strength of the Gillis
decision, Arbitrator Briggs also admitted an investigator’s report, making clear that
the evidentiary weight to be attached to the report would be determined later.
21. On the strength of these authorities the Employer argues that I should have
the relevant background and context explained in ADM Ramsarran’s evidence so
that I may understand why the Employer has adopted the position it has.
*****
22. Were this an interest arbitration and my role as arbitrator were to determine
whether the Employer has good reasons for substituting a day of learning,
reflection, and reconciliation for a paid holiday, the evidence the Employer
proposes calling would likely be relevant and probative. If I had to decide whether,
sitting as an interest arbitrator, the unions should have a paid holiday in their
collective agreements or whether the employees should be engaged at work in
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carefully planned education workshops provided by the Employer to all staff on
September 30 each year to promote learning, reflection, and reconciliation, the
evidence of ADM Ramsarran would be relevant.
23. But that is not what this case is about. It is not an interest dispute to
determine whether there should be a paid public holiday, or if a day of learning and
reflection is a more appropriate alternative, and what the Employer and the unions
respectively think about those possibilities. Rather, this is a rights dispute over a
right the unions claim exists under their collective agreements.
24. ADM Ramsarran’s proposed evidence is about something tangential to the
main dispute between the parties. That evidence is about how September 30 should
best be utilized in the interests of Ontario’s Indigenous peoples. It is not about what
right the unions have under their collective agreements and whether that right has
been violated.
25. As mentioned, the main dispute between the parties “raises a common
question, namely, whether the National Day for Truth and Reconciliation on
September 30 falls within the holiday entitlements set out in their respective
collective agreements” [para. 9 of the Agreed Statement of Facts]. The “interpretive
issue [is] whether the National Day for Truth and Reconciliation is a holiday for
purposes of the holiday provisions of the collective agreements” [para. 44 of the
Agreed Statement of Facts].
26. The Employer wishes to provide evidence of why it does not intend to treat
September 30 as a paid holiday. The evidence does not purport to be an aid to the
interpretation of the relevant collective agreement provisions. As union counsel
submit, the feedback the Employer received from Indigenous partners does not
assist in our understanding of the intention expressed in the collective agreements.
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27. The broad discretion given to an arbitrator under Section 48(12(f) of the
LRA, must be exercised to promote the efficiency of the process, provided there is
no prejudice to any party. Evidence is admitted for later review as to its weight –
as the Employer requests in this case – to avoid unnecessary delay in argument over
admissibility. But there must first be some evidentiary basis for the proper exercise
of the discretion.
28. In this case, there is no cogent reason in law to admit the evidence; and it
would impede the efficiency of the hearing.
29. I address first the legal grounds as to why the evidence is not admissible. I
then address the practical impediment to admitting the evidence.
30. As the unions argue, the evidence the Employer wishes to present is
irrelevant to the issue in dispute. The issue is the meaning and the implication of
what the parties have agreed in the various collective agreements with respect to
holidays. The wording in the various collective agreements in slightly different, but
the gist is explained in paragraph 23 of the Agreed Statement of Facts:
With slight variations in introductory wording, the collective agreements at
issue all identify a prospective entitlement to “any special holiday as
proclaimed by the Governor General or Lieutenant Governor” and all refer
to the same holidays.
31. That is the provision in the collective agreements that needs to be
interpreted. The Crown’s subjective decision on how to honour the National Day
for Truth and Reconciliation has nothing to do with the proper interpretation of that
provision. What matters for the determination of the rights of the parties is what
that provision means and how it should properly be interpreted.
32. The starting point for the proper interpretation of the provision is the plain
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meaning of the words chosen by the parties. The words are what matter most (see
Elementary Teachers’ Federation of Ontario v Elementary Teachers’ Federation
of Ontario Staff Association, 2021 CanLII 3125 (ON LA) (Surdykowski),
paragraph 63).
33. Extrinsic evidence can be called only when it is necessary to assist the
adjudicator to ascertain the parties’ mutual intention. (See Domtar Inc. and Unifor,
Local 156 (Early Swipes), Re, 2019 CarswellOnt 10266 (Stewart)), paragraph 10).
Subjective intentions that are not mutual intentions are irrelevant to the
interpretation. This was expressed as follows in Cavendish Appetizers and UFCW,
Local 175 (R517-0165), Re, 2019 CarswellOnt 10265 (Surdykowski), at paragraph
13:
I went on to explain in paragraphs 38-42 that the Supreme Court of Canada's
decision in Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633,
2014 SCC 53 (S.C.C.) (CanLII), particularly paragraphs 46-50 and 55-60 of
the decision of Rothstein J. (writing for the unanimous Court) are instructive
regarding the appropriate approach to contract interpretation; namely, (to
borrow from Rothstein J.) a practical, common sense approach to the
contract considered as a whole not dominated by technical rules of
construction, with due regard to the context within which the contract was
made. The clear message from the Supreme Court of Canada is that the
words of the contract must be given their plain and ordinary meaning read
in the context of both the contract as a whole and in the objective
circumstantial context which was or ought reasonably to have been known
to the parties at the time the contract was made. However, Sattva also makes
it clear (in paragraph 60) that although relevant context can provide an
important interpretive aid, it cannot "overrule" the words agreed to in the
contract. That is, it is the words agreed to by the parties in their collective
agreement that matter most.
See also Air Canada v Air Canada Pilots Association, 2012 CarswellOnt 4390,
[2012] O.L.A.A. No. 64 (Burkett), at paragraphs 39 and 40; Dumbrell v Regional
Group of Cos., 2007 ONCA 59, paragraphs 52 – 56; Waterloo Region Record and
Unifor, Local 87-M (Davis), Re, 2014 CarswellOnt 16763, [2014] O.L.A.A. No.
11
416 (Hayes), at paragraph 34; and United Brotherhood of Carpenters and Joiners
of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993]
2 SCR 316.
34. On this aspect, the unions make the telling point that nothing in the evidence
that ADM Ramsarran proposes to give touches on what was known to the parties
when they entered into the written agreements, which would be the only relevant
contextual and surrounding circumstances evidence that could be admitted.
35. The evidence the Employer seeks to present is showing its motivation for
not granting the public holiday; it is not in any way directed at explaining the
intention of the parties with respect to the words used in the collective agreements.
36. The role and nature of admissible evidence of “surrounding circumstances”
in the interpretation of a contract was described as follows by Justice Rothstein in
Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR
633, the case referred to above, at paragraphs 56 and 57:
[57] While the surrounding circumstances will be considered in
interpreting the terms of a contract, they must never be allowed to
overwhelm the words of that agreement (Hayes Forest Services, at para. 14;
and Hall, at p. 30). The goal of examining such evidence is to deepen a
decision-maker’s understanding of the mutual and objective intentions of the
parties as expressed in the words of the contract. The interpretation of a
written contractual provision must always be grounded in the text and read
in light of the entire contract (Hall, at pp. 15 and 30-32). While the
surrounding circumstances are relied upon in the interpretive process, courts
cannot use them to deviate from the text such that the court effectively
creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility
Cellular Inc. (1997), 1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).
[58] The nature of the evidence that can be relied upon under the rubric of
“surrounding circumstances” will necessarily vary from case to case. It
does, however, have its limits. It should consist only of objective evidence
of the background facts at the time of the execution of the contract (King, at
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paras. 66 and 70), that is, knowledge that was or reasonably ought to have
been within the knowledge of both parties at or before the date of
contracting. Subject to these requirements and the parol evidence rule
discussed below, this includes, in the words of Lord Hoffmann, “absolutely
anything which would have affected the way in which the language of the
document would have been understood by a reasonable man” (Investors
Compensation Scheme, at p. 114). Whether something was or reasonably
ought to have been within the common knowledge of the parties at the time
of execution of the contract is a question of fact.
37. See also Bruce Power LP v Society of Energy Professionals, 2017 CanLII
94612 (ON LA) (Surdykowski), at paragraphs 41 and 42; and Labourers'
International Union of North America, Local 1059 and Labourers' International
Union of North America, Ontario Provincial District Council v Bruce Power LP,
2020 CanLII 96012 (ON LRB).
38. The conclusions for collective agreement interpretation from Justice
Rothstein’s decision in Sattva are nicely summarized in Alberta Union of
Provincial Employees v Alberta Health Services, 2020 ABCA 4 (CanLII), at
paragraph 44:
[44] The following conclusions flow from the above analysis. First, labour
arbitrators must consider evidence of relevant surrounding circumstances
when interpreting a collective agreement regardless of whether the language
is ambiguous. Second, it is never appropriate to consider the subjective
intention of the parties when interpreting a collective agreement (Sattva, at
para 59; IFP at para 87; Arbitration Award at para 35). Third, there may
remain circumstances where it will be necessary to establish an ambiguity in
the contract language before being permitted to admit evidence, for instance:
some evidence of negotiations not otherwise admissible as surrounding
circumstances; past practice, or post contract conduct: IFP at para 87.
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39. Nothing that ADM Ramsarran can testify to has anything to do with the
parties’ mutual intention at the time they concluded the collective agreement that
first contained the holiday provisions. That occurred for OPSEU in 1978, for
AMAPCEO in 1998, for PEGO in 1996, and for ALOC and OCAA in 1990. There
is no suggestion of any evidence being given by the Employer to explain the parties’
mutual intention at the time the provision came into each of the collective
agreements. The proposed evidence gives neither context, nor surrounding
circumstances, for the interpretation of the collective agreements. It is therefore
inadmissible.
40. There is also a practical impediment to following the Employer’s suggestion
of letting in the evidence and later determining its usefulness and weight. Doing so
would generate an unnecessary line of inquiry and cause unnecessary delay in
addressing the main issue.
41. As union counsel argue, the process will be wholly less efficient, with
markedly less expedition, if evidence is presented on how best the purposes of
acknowledging the historical experience of Canada’s Indigenous peoples and of
how reconciliation can best be accomplished. The unions would reasonably require
production of all the underlying documents that inform the conclusions that ADM
Ramsarran will explain so that they may check the validity of those conclusions.
The unions will need to do an extensive review of the Employer’s consultation
process, which was done without union participation. The unions will themselves
be put to investigating the same issues (to the extent they have not already done so)
and to producing their own reports and conclusions. This will involve more
elaborate production and more evidence on the subjects raised. There will
necessarily be significant delay in the completion of this matter, particularly as
compared to the alternative, which is simply to address the issue of what obligation,
if any, the Employer has agreed to with respect to the National Day for Truth and
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Reconciliation as a paid holiday. The delay that would be occasioned, and the
additional work required of the unions in preparing their cases, if a new a new area
of inquiry is opened up – as it would if ADM Ramsarran’s evidence is permitted –
would necessarily be prejudicial to the unions. This is because they would be put
to expense and effort on an issue which is tangential to the main dispute over the
proper interpretation of the language in the collective agreements. (See an
analogous situation in Ottawa Hospital and CUPE, Local 4000 (Dress Code
Policy), Re, 2013 CarswellOnt 130, [2013] O.L.A.A. No. 6 (Slotnick), at paragraph
34).
42. Accordingly, for reasons of efficiency and particularly because the
proposed evidence is inadmissible, the Employer may not introduce the proposed
evidence of ADM Ramsarran.
43. Therefore, at the next hearing date, next week, on May 8, 2023, there will
be argument on the merits of the main case. As previously arranged, the unions’
written argument summaries and casebooks will be provided by May 5, 2023.
DATED at TORONTO on May 2, 2023.
_____________________
Christopher J. Albertyn
Arbitrator