HomeMy WebLinkAbout2001-0534.Hunt et al.12-09-17 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
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Toronto (Ontario) M5G 1Z8
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GSB#2001-0534, 2003-2944, 2008-3397
UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hunt et al) Union
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The Crown in Right of Ontario
(Ministry of Attorney General) Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE UNION Tim Hannigan
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Omar Shahab
Ministry of Government Services
Labour Practice Group
Counsel
HEARING July 22, September 16, October 6, 2010,
October 18 & 25, November 15 & 22,
December 12, 2011, March 1, 7 & 27,
April 10, May 23, 2012.
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Decision
[1] On July 27, 2006, I issued a Decision in this case wherein I determined that “the
preparation and certification of transcripts is bargaining unit work” and “the implications of this
finding” were referred back to the parties. I remained seized. The parties, however, were unable
to resolve the issues arising from my finding, and it came back to the Board for resolution. This
Decision addresses some of the remedial issues raised by the parties.
[2] Both parties recognize the challenges that the remedial phase of this proceeding involves.
As counsel for the Union aptly stated, it is like trying to “put a square into a circle” and is
essentially an attempt at “reverse engineering.” Or, as counsel for the Employer stated, it was
akin to trying to “unscramble an egg.” It is a difficult task.
Background
[3] For a two-year period following the release of the decision on the merits in this matter,
the parties voluntarily agreed to maintain the status quo, pending discussions on the
implementation of the decision. That agreement ended on June 1, 2008. Hearing dates were
then set, but a number of procedural, jurisdictional, disclosure and production issues arose which
were addressed by the Board. Eventually, the hearing on remedy commenced with the evidence
of one Court Reporter, Helen Haggith. After some dispute, it was agreed that she was not a
representative grievor but that a decision dealing with her situation could provide some guidance
for the parties.
[4] A number of matters are not in dispute. First, the Board has determined that the
preparation and certification of transcript is bargaining unit work. Second, to date,
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notwithstanding the expiry of the agreement to maintain the status quo, the Employer has
continued to treat Court Reporters as independent contractors.
[5] The Union asserts that Ms. Haggith is owed between $186,141.69 to $236,871.14 by the
Ministry for the period 2004 to 2009 due to its failure to follow the collective agreement. The
Employer asserts that she is owed nothing. Clearly, the parties are in substantial disagreement in
terms of their approach to the issues. Each issue will be addressed below, following a review of
the basic principles in terms of remedial relief in a contractual matter.
Remedial Principles
[6] As succinctly stated by Vice Chair Herlich in Re OPSEU (Sidhu) and Ministry of
Agriculture, Food & Rural Affairs, GSB No. 1994-0232 (2011), at par. 24:
The first and primary guiding principle of any remedial response is to put the aggrieved
party, inasmuch as possible, in the same position they would have been in but for the
breach. …[I]t is simply not possible to rewrite history… That task is beyond even the
Board’s ample panoply of remedial resources. We must therefore ask what the grievor has
lost, what she has suffered as a consequence of the Employer’s breach….
[7] A number of “guiding principles” are expressed in that quotation. First, the goal of a
remedial order is to “make whole” – to put the grievor, as far as possible, in the same position he
or she would be in but for the Employer’s breach of the collective agreement. Second, the onus
is on the grievor to establish his or her loss. Proof of actual loss must be presented before a
monetary award will be made. As stated by the Supreme Court of Canada in a wrongful
dismissal case, Re Michaels v. Red Deer College [1976] 2 S.C.R. 324, at p. 5: “It is, of course,
for a wronged plaintiff to prove his damages, and there is therefore a burden upon him to
establish on a balance of probabilities what his loss is.” Re Motor Transportation Industrial
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Relations Bureau of Ontario and General Truck Owner’s Union, Local 938 (1972), 4 L.A.C.
(2d) 154 (H.D. Brown); Re Thermal Ceramics and U.S.W.A. (1993), 34 L.A.C. (4th) 23 (Gray).
[8] The loss cannot be speculative or remote, Re City of Waterloo and C.U.P.E., Local 1542
(1995), 50 L.A.C. (4th) 197 (Williamson), nor should it put a grievor in a better position than if
no violation occurred. As the Board stated in Re OPSEU (Grinius) and Ministry of Citizenship,
GSB No 1495/89 (Fisher, 1995), at p. 14: “[T]he employee should not be any worse off, nor any
better off than if the [breach] had not occurred in the first place.” Further, the purpose is to
compensate, not to punish. Re Miracle Food Mart Canada and U.F.C.W., Local 175 and 633
(1994), 45 L.A.C. (4th) 209 (Dumoulin); Re OPSEU (Gibbon) and Ministry of Correctional
Services, GSB No. 0687/00 (Kirkwood).
[9] There is also a duty to mitigate the losses incurred – “a party aggrieved by the violation
of the collective agreement must act reasonably to mitigate its losses.” Re Regional Municipality
of Ottawa-Carleton and Ottawa-Carleton Public Employees Union, Local 503 (Lee Grievance)
(1997), 63 L.A.C. (4th) 112 (Dissanayake) and cases cited therein; Re Michaels v. Red Deer
College, supra; Re City of Toronto and Toronto Civic Employee’ Union, Local 416 (2005), 135
L.A.C. (4th) 140 (Tacon).
[10] The foregoing are the guiding principles that govern my consideration of the remedial
issues raised in this case.
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1. Wages for time spent preparing transcripts.
[11] As the typing and certification of transcripts is bargaining unit work, wages must be paid
for the time that employees spend performing such work. Both parties agree that the amount of
time spent preparing transcripts depends on how quickly they can be produced by a Court
Reporter. According to the Union, an inexperienced Court Reporter (under one year) can
produce 1.5 pages of transcript/hour. A moderately experienced Court Reporter (1 to 2 years)
can produce 2 pages of transcript/hour. After two years, a Court Reporter can produce between
3.5 to 4 pages/hour, and an experienced Court Reporter (3+ years experience) can produce 5
transcript pages/hour.
[12] The Employer put forth two estimates for the preparation of transcripts. One asserts that
an inexperienced Court Reporter (under 6 months) can prepare 6.5 pages/hour; a moderately
experienced Court Reporter (between 6 months to two years) can produce 8.5 pages/hour, and an
experienced Court Reporter can type 12.5 pages/hour. The second assessment asserts that a new
Court Reporter can produce 6 pages/hour, an intermediate Court Reporter can produce 10
pages/hour and an experienced Court Reporter can type 13 pages/hour.
[13] No evidence was presented by either party based on a Court Reporter actually keeping
track of the hours he or she spends preparing transcripts. In the Union’s view, since Court
Reporters were not paid by the hour, there was no requirement or expectation that they should
keep track of their time. Nor was any such evidence presented by the Employer. Similarly,
neither side presented any industry standards, nor testimony from independent court reporting
agencies, court reporting accrediting organizations or governments about how quickly court
reporters can produce and certify a transcript.
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[14] Instead, the Union presented evidence of Ms. Haggith’s monthly calendars from 2004 to
2009, on which she recreated the dates and times she was assigned to in-court duties (from her
own records as well as payroll and court records), her transcript orders and transcript invoices
which showed the number of transcript pages she produced as well as the date of the order and
approximately when it was completed. From that information, she estimated the time that she
spent preparing transcripts, and when she did them. She allocated transcription hours to time
during the week she was not in court, and tried to avoid weekends and holidays “unless volume
required it” or she had a specific recollection of working on a weekend or holiday.
[15] Ms. Haggith was hired by the Ministry on July 14, 2003 as an unclassified on-call Court
Reporter. At the time, she had a degree in English from the University of Windsor, a secretarial
certificate from St. Clair College, and had taken some computer and Labour Relations courses.
She also had prior work experience in payroll for a Customs Brokerage and as an Executive
Assistant. She saw an advertisement for Court Reporters and applied. She was tested for typing
skills and computer functions, interviewed and then offered the job. The Ministry requires a
minimum typing speed of 50 words per minute (wpm) – straight copy typing from a document.
There was no evidence concerning the “computer function” testing she did.
[16] Ms. Haggith initially estimated the hours she spent preparing transcripts at the start of her
career based on a calculation of being able to produce 1.5 pages of transcript per hour, “all in.”
By “all in” she included all of the tasks associated with the production of transcripts. This
included reviewing the transcript order, obtaining the tapes and notes required for the order from
where they were kept in the court house and copying them (photocopying the notes and any
documents, and, after 2005, dubbing the tapes because they were no longer allowed to take the
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originals home), setting up her computer and templates, finding the right spot on the tape,
printing the draft to proof read it, proof reading it, printing the final version and copies, binding
it, invoicing, calling the parties to advise it was ready, and following up in regard to payment.
[17] Ms. Haggith testified that when she started, preparing transcripts was a very slow
process. She had to look up everything. The Ministry has specific requirements for each type of
proceeding and transcript which are set out in a Court Reporters’ Manual. She also would proof
read it (by listening to the original recording in real time) multiple times. She’d send it off to a
mentor, make any required changes, and then proof read it again.
[18] Under Ms. Haggith’s formula, it would take 2 hours to complete a 3 page transcript, or 20
hours to complete a 30 page transcript. The evidence at the hearing established that one hour of
court/audio time generally results in 30 pages of transcript. So under this calculation, it would
take her 20 hours to complete 1 hour of courtroom audio. The Union’s calculation of the wages
owed to Ms. Haggith, for 2004, was based on this formula.
[19] Ms. Haggith acknowledged that as her experience increased, she became faster. All of
the witnesses who testified agreed that experience leads to faster transcript production. In Ms.
Haggith’s estimation, by 2005, she was able to produce 2 pages of transcript per hour. She was
“still very new” to transcribing. Under this formula, a 30 page transcript would take her 15
hours to produce. By 2006, she estimated that she could type between 3.5 to 4 pages/hour. By
2007, she was able to produce 5 pages of transcript per hour. Her speed, she testified, was “as
good as it was going to get” at 5 pages of transcript per hour.
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[20] When asked on examination-in-chief why she selected that figure, she replied that it was
“probably the fairest estimate.” She testified that she could “probably type 10 to 12” pages in an
hour if it was a “really good recording” and “clear.” The “fastest ever” she was able to type was
15 pages per hour, but 10 to 12 pages was “more accurate” since it was “rare” to get a clear
recording. In terms of proof reading, she could do that at 30 pages per hour – or two minutes per
page, and she would generally proof read twice, although there were times that she proof read
three, four or even five times “till there were no mistakes.” Even at 15 pages per hour typing,
she testified that it would result in 7.5 pages/hour “all in”, including retrieval of documents,
billing, binding, printing, packaging, and follow-up. Therefore, in her estimation, producing 5
pages of transcript per hour “is very fair.”
[21] Ms. Haggith testified that she would “just type all the time – it’s all we do.” She had “no
social life, no time”, she would “barely see her family.” She “loved it” but it was “exhausting”
and “takes over your whole life.” She initially testified that a Court Reporter could not refuse a
transcript – that it “must be done.” Later in her testimony, however, she stated that she would
“turn down quick turnaround cases.” She also delegated typing responsibilities to other court
reporters “on occasion.” Conversely, she would “take as well” by typing transcripts for other
Court Reporters “when they were overwhelmed.”
[22] On cross-examination, Ms. Haggith acknowledged that the Ministry encouraged Court
Reporters to approach colleagues if they had too much transcript work to do. She also testified
that there was a “stand by” Court Reporter to whom she could “hand off what [she] couldn’t
manage.” She further testified, on cross-examination, that “this year”, she “stopped typing” as
“my own protest.” The exception was overnight transcripts.
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[23] I would note that this evidence differed significantly from the evidence presented in the
hearing on the merits. There the evidence established that “the production of transcripts, upon
request, is a required part of a court reporter’s duties” and was “not optional.” Nor could a Court
Reporter, without the Ministry’s approval “refuse to prepare a transcript” or delegate it. (July 26,
2006 Decision at pp. 5-6). The evidence in this proceeding was that Court Reporters can and do
refuse transcripts, can ask for and receive assistance both from co-workers and supervision, and
can have transcripts reassigned.
[24] Ms. Haggith testified about a few transcripts which “stood out” in her recollection. One
was at Thanksgiving in 2006, during a criminal pre-trial. She was in court on the Friday before
Thanksgiving and it had been a “long day”, when a transcript of the day’s proceedings was
requested by counsel. She advised that she could not do it because she was going to Chicago for
the weekend to help her sister move, and asked if it could be given to someone else or provided
on Wednesday morning. The judge told her to do the best she could. She later received a
message to have it done for Tuesday, and by that time, no one in management was available to
help her find someone else to do it. So she went to Chicago, returned very late on Sunday, and
started typing at 8 a.m. on Monday, and typed until 11 p.m. on Thanksgiving. She stated that it
was an analog tape and the quality was “not great” and it was “very unpleasant.” Her invoice
reveals that she transcribed 64 pages, which is a rate of 4.26 pages/hour.
[25] Another one took place just before Christmas 2006, when a transcript was ordered by the
Deputy Justice in a Small Claims matter. She testified that she had to bring her transcribing
equipment on her vacation and that she typed the transcript at her mother’s house. She testified
that normally, a single day trial would generate 150 pages of transcript, but this one was 244
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pages because counsel kept interrupting. It took “a good portion of my vacation.” Her invoice
for it was dated January 14, 2007.
[26] At the time that Ms. Haggith initially prepared her calendars for this proceeding, she
reviewed her personal documents (invoices, orders, pay stubs, receipts and other supporting
documents). Those documents for the years 2006 to 2009, however, were destroyed when a
power outage in June 2010 knocked out her sump pump which flooded her basement, and her
documents, which had been placed in a basket on the floor in her basement, were destroyed. Her
records for 2004 and 2005 which had been placed in a different location were fine. Ms. Haggith
was able to retrieve most of her transcript invoices from her computer, but not the other
supporting documentation.
[27] On September 25, 2006, Ms. Haggith’s status changed from unclassified, on-call Court
Reporter, to classified “flexible part time” (“FPT”) Court Reporter, at 1000 hours per year. On
June 24, 2005, the parties entered into a Memorandum of Agreement concerning “Court Support
Services of the Ministry of Attorney General, and Appendix 25 of the Collective Agreement.”
This agreement became Appendix 32 of the 2005 -2008 collective agreement. It established a
pilot project which changed unclassified, on-call staff to classified “flexible part-time” staff, with
a range of minimum annual hours, from 720 to 1500 hours per year. Section 4 of that agreement
specified the collective agreement articles which would be applicable to the new FPT model and
that “no other articles apply unless specifically agreed” although that was subject to further
review by the parties.
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[28] On February 26, 2009, the parties revised Appendix 32. It continued the FPT
arrangement, although it limited it to either 1000 or 1500 hours per year, with the right to
schedule employees up to 36.25 hours per week. Again, in Section 4, the parties specified the
“applicable collective agreement provisions.”
[29] Ms. Haggith testified that she resigned from her position effective August 5, 2011, due to
a number of factors. She had “had enough of the Ministry and fighting to do the job.”
[30] Judith Mann, Senior Policy & Business Analyst, Court Services Division, Ministry of
Attorney General, and Debbie Dunn, Acting Manager of Court Operations, testified on behalf of
the Employer. Ms. Mann started with the government in 1970, and became a judicial secretary
and Court Reporter in 1972. In 1974, she became a full-time Court Reporter 2, and in 1978, she
became a Supervisor and Trial Coordinator. She returned to court reporting in 1980 and
remained in that position for twenty years, attending trials at many different courts, until 2000.
From 2000 to 2007, she served as Supervisor, Court Support Services, in Hamilton, after which
she began her current job. In addition, for the past ten years, Ms. Mann has also owned and
operated her own transcription business.
[31] Ms. Dunn had been a free-lance Court Reporter from 1999 to 2004, in Orangeville, where
she took the record of the proceedings and produced transcripts “hundreds of times.” In 2004,
she became a stenomask Court Reporter in Brampton, and in 2006, she became Acting
Supervisor for Court Reporters in Brampton. In 2007, she also became the Supervisor for Court
Operations in Orangeville. In February 2011, Ms. Dunn became Acting Manager for Court
Operations, for Orangeville, Milton and Brampton.
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[32] In their various positions, both Ms. Mann and Ms. Dunn have supervised and mentored
many Court Reporters, among other in-court employees.
[33] Both Ms. Mann and Ms. Dunn were incredulous at the transcript page per hour numbers
proposed by the Union. It was Ms. Mann’s view that a new Court Reporter should be able to
produce between 6 to 7 pages of transcript per hour. After six months, a Court Reporter should
be able to produce 8 to 9 pages of transcript per hour, or an average of 8.5. An experienced
Court Reporter, in her estimation, should be able to produce between 10 to 15 pages, or an
average of 12.5 pages/hour. Ms. Mann stated that her averages were based on her personal
experience and knowledge of court reporting, and that she went through her transcripts, with a
friend, and came up with these averages She said she “would be phoning HR” if a new Court
Reporter was producing transcripts at the rate of 1.5 pages/hour. She would also be “very
concerned” about a Court Reporter, with three years’ experience, who was typing at 5
pages/hour.
[34] Ms. Dunn’s numbers were similar – initially 5 to 7 pages/hour, or an average of 6
pages/hour. After six months experience, she would expect a range of 8 to 12 pages, or an
average of 10 pages/hour, and an experienced Court Reporter, in her view, should produce 12 to
14 pages/hour, or an average of 13 pages/hour.
[35] Ms. Mann testified that Court Reporters come to the job able to type at a minimum ability
to type 50 wpm, and that their speed increases with experience. Both Ms. Mann and Ms. Dunn
testified that typing from an audio is generally faster than straight copy typing because you do
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not have to switch their eyes from the copy to the screen, but acknowledged that it might not
always be the case, particularly with a poor recording.
[36] Ms. Dunn testified that in preparation for the hearing she completed a 13 page transcript,
including proof reading and binding, in one hour with “three minutes to spare.” She did this as a
“personal exercise” in order to give the “best information” she could at the hearing.
Unfortunately, she shredded the transcript and did not save a copy of her work. She stated that it
“didn’t occur to me that anyone would want it.”
[37] Ms. Dunn’s estimates went from a figure that she determined was reasonable, and then
worked backward. For the experienced person, she determined that a 68 page transcript should
take 5.23 hours to complete, “all in.” She calculated two minutes per page for proof reading
(2.26 hours), but said that in reality, it would be done at a faster pace because a Court Reporter
could fast forward through pauses and “dead air.” She included 2 minutes per hour for all of the
“one time” incidentals – like copying, binding, billing. She calculated 2.8 hours to type 68 pages
of transcript. Assuming 250 words per page of transcript, which the evidence supports, that
comes to 17,000 words, or a speed of over 100 wpm.
[38] The only person who testified that her rate was close to that was Ms. Diane Black, a
Court Reporter and reply witness for the Union. On examination-in-chief, she testified that the
standard expectation for copy typing was 50 wpm, and that she could not type as fast from an
audio recording. She thought it was “slower” although she wasn’t sure how much slower – just
that you “get less done.” On cross-examination, however, she testified that she typed “fast”,
between 80 to 100 wpm from a hard copy.
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[39] None of the other witnesses were asked about their typing speed. Ms. Haggith testified
that she typed between 10 to 12 pages/hour, with a maximum of 15 pages. The evidence
established that there are generally 250 words on a transcript page. Consequently, twelve pages
per hour equates to 50 wpm. Fifteen pages per hour equates to 62.5 wpm. Ms. Diane Black
testified that she typed 12 pages per hour from a recording. Ms. Pirjo Ojanen, another Court
Reporter and reply witness for the Union, testified that she typed between 10 to 11 pages per
hour, straight typing, from audio. That would mean she types less than 50 wpm. Ms. Karishma
Nairne, a relatively inexperienced Court Reporter, testified that after a few years, she was able to
type at 10 pages per hour from an audio recording, straight typing. She would also be typing less
than 50 wpm.
[40] In terms of proofreading, Ms. Haggith was the only witness who testified that she proof
read more than one time. All of the other Court Reporters who testified, as well as the
Employer’s witnesses, stated that they did so only one time. Ms. Haggith also testified that she
proof read from a printed hard copy – which the most recent Court Reporting manual entered
into evidence suggests as a “tip”– but all of the others, except Ms. Naraine, proofed from their
drafts on the computer screen. Even Ms. Haggith did so, when there was “no time” to proof read
from a printed copy.
[41] Ms. Haggith testified that she needed to proof read more than one time in order to
“certify” the transcript. Certification, on a Form 2, is a certification, by the Court Reporter, that
the transcript is “a true and accurate transcript” of the court proceedings. A Form 1 certificate is
a Certificate of Recording in court. As noted, however, every other witness testified that they
were able to certify the transcript from proof reading just one time.
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[42] The evidence established that many variables impact transcription production speed.
Most important is the quality of the recording. It was common ground that digital recording,
which began in 2007 as a pilot project and is widely utilized now, is vastly superior to analog
recording in terms of sound quality. There is also sound amplification, which enhances the
sound of the recording.
[43] Other factors in addition to the clarity of the recording, as outlined by Ms. Mann, are the
experience level of the Court Reporter, the density and complexity of the proceeding (i.e., “yes”
and “no” answers versus a pathologist or mechanical engineer explanation), and the method of
taking the record (Computer Assisted Technology was faster). Also relevant are the talking
speed of the participants, whether people are talking over each other, accents, the use of
interpreters, if the witness is a child, ambient noise and many other variables.
[44] There was a significant amount of testimony concerning the use of “templates”, “macros”
and “autocorrect” which are features on computer software (Word and Word Perfect) which can
significantly increase typing speed, particularly where words or phrases are repeated. For
example, the letters “imrs” can be typed for the words “in my respectful submission”, “yh” can
be programmed to be “Your Honour”, and so forth. Over time, a personal “dictionary” can be
developed by the Court Reporter to speed his or her typing. It also reduces spelling mistakes,
especially with names, which reduces the need for corrections. Templates (which set out the
margins and formatting for different types of proceedings) can be prepared one time, and then
used whenever that type of proceeding arises.
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[45] All of the Court Reporters who testified, including Ms. Haggith, acknowledged that they
used templates and autocorrect and that these tools speed up typing transcripts. None appeared,
however, to use them quite as extensively as Ms. Mann or Ms. Dunn. In contrast, it was Ms.
Mann’s and Ms. Dunn’s testimony, based on their supervisory and mentoring experience, that all
Court Reporters regularly use these tools. The evidence established that the Ministry does not
formally teach new Court Reporters on the use of macros or autocorrect. There is also no section
on it in the Court Reporter Manuals introduced at the hearing.
[46] The evidence established that the primary responsibility of the Court Reporter is to obtain
a clear record. This means that if the reporter does not hear what has been said, he or she needs
to interrupt the proceedings to advise the judge of that situation. The evidence established that
most judges understand the importance of the record and accept the need for clarification. Not
all judges are understanding, but the evidence established that this is the exception, not the norm.
All of the participants involved in a proceeding – the judge, counsel, the parties and the Court
Reporter – share the goal of an accurate and complete record of the proceedings. As Ms. Dunn
testified, a Court Reporter learns very quickly to interject when they need to do so to ensure an
accurate record.
[47] Court Reporters are also required to obtain spellings of names and technical terms, case
law names and citations, an exhibit list, and any other information required to produce an
accurate transcript at the time the recording is made. The evidence showed that doing this saves
significant time when typing the transcript by avoiding the need to look things up. Court
Reporters are instructed by the Ministry in terms of obtaining the necessary information.
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[48] Court Reporters are also responsible for testing the recording equipment to make sure it is
working and recording properly before the Court starts the proceeding – and during the
proceeding as well. Any issues with the recording must immediately be brought to the judge’s
attention so that a complete record is provided.
[49] The Ministry utilizes several different methods of taking the transcript. The least
utilized, by far, is Computer Assisted Transcription (CAT). It also uses Stenomask reporting.
This involves a Court Reporter repeating everything that is said in Court into a mask with a
microphone. The vast majority of reporting, however, is done through audio recording – analog
or digital. The Court Reporter audiotapes the proceedings, using one of the two methods.
[50] Since the 1990s there have been variations in recording the proceedings. The number of
tracks have increased to 4 tracks. With four tracks, according to Ms. Dunn, it is easier to isolate
the tracks, yet the recording flows as it did in court. In 2007, the Ministry began a pilot project
using digital recordings. It was successful, and the Ministry has converted “a high percentage”
of the courts to digital recordings, with more each year. The evidence showed that not only is
the quality of the recording significantly superior, but digital also eliminates the need to copy
tapes and log notes. The recording and notes are obtained through a USB stick or CD – and
searching for specific testimony is much faster. The search can be done by a keyword instead of
trying to find the correct spot on a tape.
[51] In terms of copying analog tapes and log notes, the practice varies. According to Ms.
Dunn, 70% of courts have a Court Tape Monitor or Records Clerk who, when a transcript order
comes in, pulls the tapes and log notes for the order, and places them in the Court Reporter’s
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mail box. Ms. Black testified that she was the Court Tape Monitor at her Court. Ms. Naraine,
who worked as a Court Reporter for three years, never had to pull her own tapes or log notes.
Likewise, Ms. Ojanen testified that she has not had to copy any tapes or notes herself for the last
four or five years. It is undisputed that with digital tapes, there is no need for copying tapes or
log notes.
[52] When a Court Reporter has to copy an analog tape there were varying estimates of the
time that takes. Ms. Haggith testified that it takes between 7 to 10 minutes to copy a tape. Other
estimates ranged from 1 to 2 minutes, and Ms. Black testified that it takes from 3 to 4 minutes
per tape. Tapes are generally 90 minutes long, although some 60-minute tapes are used. The
Courts all have “dubbers” – machines which quickly copy the tape. The number of dubbers per
court varies with the size of the court house. In Brampton, for example, there are six or seven
dubbers, so if there are multiple tapes, more than one may be done at the same time. Other
courts have one or two.
[53] In terms of binding transcripts, the evidence established that it takes approximately one
minute to bind 10 to 15 pages of transcript, although the estimates varied. There are binders at
the court house, some of which can handle more pages at a time. Some court reporters have their
own binders. Transcripts of less than ten pages may be stapled, although Ms. Haggith testified
that she bound them. The evidence established that for Court of Appeal transcripts, which
require five copies, a Court Reporter may send their transcript electronically to the Queen’s
Printer, who will print and bind a transcript over 10 pages long. Ms. Haggith testified that she
never did this; she always printed and bound her own Court of Appeal transcripts. She testified
that for one large appeal she spent a full day and one half printing and binding the transcript.
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[54] Based on all of the potential variables, it is clear that there is a range of potential
transcription production rates, and that in determining how quickly a Court Reporter may prepare
a transcript an “average” needs to be utilized. Whatever page per hour rate is determined, there
will be some transcripts that take longer to produce and some that take less time to produce.
There will also be Court Reporters who are “faster” and some who are “slower.” It is also an
average that will increase with experience, as well as improvements in technology. As Ms.
Haggith testified, with experience a Court Reporter becomes familiar with the different types of
proceedings and formatting, the Manual requirements and the case law. Also, his or her personal
“dictionary” is built up over time. The clarity of the recording also plays a significant factor in
the speed at which a transcript may be produced.
Calculation of the Page/Hour Rate
[55] Because Ms. Haggith took the record solely through audio recording of the proceedings
only, both analog and digital, this decision addresses that type of court reporting.
[56] In determining an average page per hour transcription rate, “all in”, I have made a
number of assumptions, based on the evidentiary record. These assumptions are as follows:
1. The average transcript length is 68 pages. This is based on Ms. Dunn’s testimony and the
testimony of other witnesses that the “average” transcript was between 50 to 70 pages.
The average of 35 pages suggested by Ms. Mann included the shorter 3-5 page “reasons
for judgment” which brought down the average.
2. The average number of words per page of transcript is 250 words per page.
Consequently, in a 68-page transcript, a Court Reporter types 17,000 words.
3. The speed at which a Court Reporter can type a page of transcript increases with
experience. I conclude that an inexperienced reporter (under 12 months) can type an
audio recording from between 20 to 50 wpm, or at an average of 35 words per minute.
This is based on the minimum typing speed required at the time of hire (50 wpm),
reduced by learning to type from an audio recording (which may slow them down,
particularly in the beginning) and learning all of the requirements of creating a transcript.
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It assumes that some will be typing from an analog tape and some will be typing from
digital. It assumes that there is a range in the density and complexity of the recording.
These assumptions pertain to all of the calculations. I conclude that an intermediate Court
Reporter from 1 to 2 years experience can type between 40 to 60 wpm, or at an average
of 50 words per minute. I conclude that an experienced Court Reporter can type, on
average, from between 50 to 80 words per minute, or at an average of 65 words per
minute. It may be that an experienced Court Reporter can type faster, on average, than
that, but I find an average of 65 wpm to be consistent with the evidence presented overall
– considering the testimony of the Court Reporters who testified – only one of whom
acknowledged a copy typing speed of 80 to 100 wpm, and the contrasting testimony of
Ms. Mann and Ms. Dunn.
4. I have assumed that proof reading (by listening to the audio recording) is done only one
time. Except for Ms. Haggith, that was the consistent practice of all of the witnesses who
testified. I accept that Ms. Haggith, in order to certify the accuracy of her transcripts, felt
that multiple proofreading was required. But in determining the page per hour rate, based
on the evidence presented, only one proof reading will be considered.
5. I have assumed that proof reading is done in real time, which is 2 minutes per page. It
may be that, on occasion, proof reading may be faster than real time as a reporter may
fast forward through pauses, but that is balanced out by times that a portion of the
recording has to be repeated, or a separate track listened to, to ensure accuracy. I have
also assumed that it is not necessary to review the printed pages other than a quick review
to ensure no blank pages. I have determined that there is no material difference in time
based on whether a Court Reporter proof reads from their computer screen or from a hard
copy. The evidence established that most reporters proof from their computer.
6. In terms of copying tapes and log notes, I have calculated an average time to be added.
The evidence showed that “a high percentage” (which I determine to be 70%) of court
houses use digital recordings which do not have to be manually copied. Further, the
evidence showed that in the court houses that use analog tapes that must be copied, 70%
have personnel who copy the tapes and log notes for the Court Reporter. Consequently,
only a very small percentage of Court Reporters must still copy tapes and log notes (i.e.,
only 30% of the 30% who still use analog tapes). Further, 68 pages is slightly more than
two hours of court time, so it assumes that only one or two tapes are being copied and a
few pages of notes.
7. I have assumed that, with a 68-page transcript, the remaining “one time” activities take
20 minutes on average – this includes reviewing the order, printing, binding (other than
for Court of Appeal cases over 10 pages, which should be sent to the Queen’s Printer),
invoicing, calling or emailing the parties, and packaging. Given that this 20 minute time
period is included in the calculation based on a transcript of 68 pages, a longer period of
time will be automatically included for longer transcripts.
Based on these calculations, I have developed the Table below:
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Table: Transcript Productivity Analysis
Beginner Intermediate Experienced
Assumptions Words/min 35.0 50.0 65.0
Tasks
Transcript 68 Pages TYPING
Words 250 Words/pg (min) 485.7 340.0 261.5
= 17,000 Words (hrs) 8.10 5.67 4.36
Proofing 2.0 Min/page PROOF READING
(min) 136 136 136
(hrs) 2.27 2.27 2.27
Copy/Notes 5.0 Min total COPY/NOTES*
Analog 33 % 67 % Digital (min) 0.54 0.54 0.54
Self
Copy/Notes
33 % Of above 67 % Court (hrs) 0.01 0.01 0.01
*averaged over all court reporters
Other (print, bind, bill, call) OTHER
20.0 Min (min) 20.0 20.0 20.0
(hrs) 0.33 0.33 0.33
TOTAL
(min) 642.3 496.5 418.1
(hrs) 10.70 8.28 6.97
min/page 9.44 7.30 6.15
pages/hr 6.35 8.22 9.76
Notes:
1. 68 pages at 250 words per page equals 17,000 words.
2. 17,000 words, divided by the three average typing speeds (25, 50, and 65 wpm) converts
into minutes and hours.
3. proof-reading is calculated at 2 minutes per page.
4. time for copying tapes and notes is averaged across all court reporters – 5 minutes for 30%
of court houses and 30% of court reporters who still have to copy.
5. 20 minutes is the time allotted for all other one-time functions
6. the sums of #2 to #5 above (for typing, proof-reading, copying, and one-time functions) are
added, in minutes and hours.
7. the sum in #6 is divided by 68 pages to get minutes/page (e.g., 642.3 ÷ 68 = 9.44 minutes
per page).
8. the number in #7 (the minutes/page) is divided into 60 minutes to get the page per hour rate
(e.g., 60 ÷ 9.44 = 6.35 pages/hour).
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[57] These numbers are obviously quite different than those reflected in the testimony of Ms.
Haggith, who testified that she typed 1.5 pages/hour as a new Court Reporter, 2 pages/hour as an
intermediate Court Reporter, and 5 pages/hour as an experienced Court Reporter. With respect, I
found Ms. Haggith’s numbers to be unreasonably low.
[58] Moreover, I was not persuaded by the testimony of the Union’s reply witnesses, who
uniformly concurred that an experienced Court Reporter could only prepare 5 pages of transcript
per hour, all in. None of the witnesses had ever timed any of their actions, nor was their
testimony persuasive in terms of the time that various transcription tasks involved. Ms. Black’s
testimony, for example, varied significantly between examination-in-chief and cross-
examination. She testified on examination-in-chief that it would take her 45 minutes to proof
read a 30 minute tape – that it was “longer than real time”, whereas on cross-examination she
stated that proofing is done “slightly faster than real time” and that it would take her “several
hours” to proof read a 150 page transcript (vs. 5 hours at real time) because she would “fast
forward through pauses” and there are “frequent pauses.” On examination-in-chief she stated
that it would take her 15 minutes to set up her computer for typing a transcript, but on cross-
examination she admitted that she “never looked at her watch” and it “could be a little shorter.”
On examination-in-chief, she stated that binding a 150 page transcript would take 15 minutes to
bind, but on cross-examination acknowledged that she “never timed it” and that 15 minutes
“might be a little high.” On examination-in-chief she stated that it took her 10 minutes to bind
two document books presented at the hearing, while on cross-examination she stated that it took
her between 15 to 20 minutes to bind them. She had over 30 years experience typing transcripts
and she believed that 5 pages/hour was “a good average”, even though she was a “fast” typist,
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typing between 80 to 100 wpm, straight copy typing. In reaching her 5 pages/hour conclusion,
she testified that she “never timed” herself and she “never added up the time.”
[59] Ms. Narraine and Ms. Pirjo Ojanen also never timed their transcript production tasks.
Ms. Ojanen further testified that she is slowed “quite a bit” by having to find spellings and
terminology that she is unable to get in court. Similarly, Ms. Black testified that she often had to
slow down to look up words in a dictionary, and that she had to stop to hear something “every
few lines.” In this regard, I accept the testimony of Ms. Dunn and Ms. Mann that it is the job of
a Court Reporter to get these items, and to ensure a clear recording, at the time so the
information is available when the transcript is typed. In addition, Ms. Ojanen estimated that it
took her 1.5 hours for the one-time “extras”, but she never timed it nor did she fully explain the
basis of that conclusion.
[60] On the other hand, I found the evidence of Ms. Mann and Ms. Dunn concerning an
appropriate transcript page per hour rate to be less than compelling. Both relied heavily on the
use of macros and autocorrect to increase typing speed, yet the Ministry does not teach it. Ms.
Mann was largely self-taught on macros and auto-correct, and Ms. Dunn was instructed by a
former employer. Although the evidence showed that Court Reporters did utilize these tools, the
extent of their use was far less clear. Ms. Mann testified that in calculating her page/hour
numbers she took into account an “appropriate” use of macros and autocorrect, rather than an
“extensive” use. But exactly what that means was left unclear. If the Ministry seeks to justify a
higher page rate because of macros and autocorrect, it must provide that instruction and require
their usage. It cannot assume that all Court Reporters have this knowledge and are utilizing it
significantly.
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[61] I also found Ms. Dunn’s calculations somewhat difficult to understand. She appears to
have determined the number of pages per hour that she found to be reasonable, given the Court
Reporter’s experience, and worked backward. As revealed on cross-examination, the typing
speed that she ascribed was over 100 wpm. There is no evidence in the record that any Court
Reporter can type a transcript, even from a digital recording, at that speed. Maybe it can be
done, but there was no evidence of it.
[62] In terms of Ms. Mann’s assessments, exactly how she made those assessments was not
conveyed at the hearing. Her testimony was that it was based on her experience and a
calculation she did with a friend, based on her own transcripts. There was no break-down
offered of her numbers, and how she reached them. I was impressed with Ms. Mann’s
background and wealth of experience and knowledge, but without an explanation of how she
calculated her page per hour assessment, I cannot assess its validity. Nor do I find that I should
accept her assessment because she was the only “expert” presented at the hearing.
[63] I also did not find the testimony of either Ms. Black that she had recently produced an
overnight transcript at the rate of 4.4 pages/hour, or the testimony of Ms. Dunn that she had
produced a 13-page transcript, all in, in one hour’s time, to be persuasive. Neither one, without
far more detail as to the specifics of the transcript, can be viewed as generally representative.
[64] Further, as noted, no studies or reports regarding transcription norms from independent
court reporting agencies, accrediting court reporter organizations, or other government entities
was introduced by either party.
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[65] Consequently, in the absence of a page per hour rate that I could accept from either side, I
based my calculations on the “assumptions” set out above, which, in turn, are based on the
totality of the evidence presented at the hearing. As set out in Table 1, I conclude, on the balance
of probabilities, that a beginner Court Reporter, for the first year, based on an average of 35
wpm, should produce 6.35 transcription pages, per hour, all in. An intermediate Court Reporter,
from year 1 to 2, should produce 8.22 pages per hour, all in, based on an average of 50 wpm. An
experienced Court Reporter should produce 9.76 pages of transcript per hour, all in, based on an
average of 65 wpm. The calculation of Ms. Haggith’s transcription hours should be based on
these figures.
2. Other Collective Agreement Benefits
[66] In 2006, the Board ruled that the production and certification of transcripts is bargaining
unit work. That means that the relevant collective agreement applies. Consequently, Ms.
Haggith’s rights and entitlements under the collective agreement must be based on the collective
agreement in force at the relevant time. In regard to Ms. Haggith, this involves three periods of
time: (1) the period she was an unclassified, on-call employee, from July 2003 to September 25,
2006; (2) the period she was an FPT under the 2005-2008 collective agreement; and (3) the
period she was an FPT under the 2009-2012 collective agreement.
[67] As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements,
until September 25, 2006, Ms. Haggith was entitled to the provisions applicable to unclassified
employees under Article 31A. To the extent, therefore, that she performed transcription work, as
calculated under Table 1, she would be entitled to corollary monetary benefits such as Holidays
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(Article 31A.5); Vacation Pay (Article 31A.6); Benefits – Percent in Lieu (Article 31A.7) and
Attendance Credits and Sick Leave (Article 31A.8).
[68] As of September 25, 2006, the grievor’s rights and entitlements under the collective
agreement were subject to the June 24, 2005 Memorandum of Agreement in regard to FPTs. The
parties, in Section 4 of that agreement, specified the articles of the collective agreement that
“will be applicable to the new FPT model, and no other articles apply unless specifically
agreed…” Article 31A no longer applied. In terms of benefits, the parties agreed to provide
benefits under Article 65 (Basic Life Insurance), Article 66 (Supplementary and Dependent Life
Insurance); Article 67 (Supplementary Health and Hospital Insurance); Article 68 (Dental Plan);
Article 72 (Vacation and Vacation Credits); Article 74 (Bereavement); Article 75 (Special and
Compassionate Leave); Article 76 (Pregnancy Leave); Article 77 (Parental Leave); and Article
78 (Termination) The insurance provisions provided various premium payments, some of which
the Employer paid on her behalf, some of which the employee could elect (and pay for), and
some for which payment was shared. The evidence did not establish that the Employer failed to
make these payments.
[69] To the extent that the Union is seeking additional insurance premium payments, the
Employer asserts that the remedy for a contractual violation involving premium payments is not
to pay the employee the premiums, which would have gone to an insurer, but to pay for any
actual loss due to the lack of the insured benefit. In support, the Employer cites to Re Calvert of
Canada Ltd. and United Automobile Workers, Local 2098 (1980), 28 L.A.C. (2d) 62 (Rayner);
Re Firestone Steel Products of Canada and International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, Local 27 (Compensation Grievance) (1974), 6
- 27 -
L.A.C. (2d) 18 (Weatherill). The Union argues that the employees should receive the money that
the Employer should have been paying towards benefits but did not.
[70] In Re Firestone Steel Products of Canada, supra, Arbitrator Weatherill addressed the
issue of whether employees who had been improperly discharged by their employer were entitled
to receive the premium payments that the employer would have made on their behalf. The
arbitrator determined that they were not entitled to such payments, concluding at par. 11:
[T]he grievors are not entitled to receive on their own account amounts which would have
been paid out on their behalf, but which they would not have received themselves. Any
losses which the grievors may have suffered because of the lack of insurance coverage, or
the like, would, I think, be recoverable, but they are not entitled to windfall payments, or to
compensation except for actual loss.
Similarly, in Re Calvert of Canada Ltd., supra at par. 10, Arbitrator Rayner determined that
payment of any out-of-pocket expenses suffered by the grievor because coverage was not
maintained, rather than payment of the premiums, was consistent with the “purpose of an award
of damages” which is “to place the grievor in the same position a he would have been if no
breach of the agreement had occurred.” He determined that the grievor was “entitled to
reimbursement for these payments upon production of receipts.”
[71] I find this reasoning to be persuasive. To the extent that Ms. Haggith can demonstrate
that she suffered an actual loss due to a lack of benefit coverage caused by the Employer’s
violation of the collective agreement, she would be entitled to recompense. She is not, however,
entitled to be paid the premiums.
[72] In terms of the period Ms. Haggith worked under the February 29, 2009 revision of the
Memorandum of Agreement, the parties included in that agreement a detailed description of how
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the collective agreement would apply to FPTs. In assessing any monies owed to Ms. Haggith,
the parties should include the transcript hours that Ms. Haggith worked, based on the formula set
out in Table 1, up to 36.25 hours per week. The issue of overtime will be addressed
subsequently below.
A. Conversion
[73] One of the key issues, other than the page/hour rate, is whether Ms. Haggith should have
been converted to full-time status, and if so, when. The Union argues that Ms. Haggith’s
contractual entitlements “crystallized” in 2003, when the Union’s policy grievance was filed. At
that time, it submits, Appendix 32 did not exist. The Union submits that if Ms. Haggith’s hours
in regard to the production of transcripts are included in her total hours, she should have been
converted. It submits that given the ongoing need for transcription services, there can be no
question that there is a “continuing need” for the work. In the Union’s submission, under the
facts of this case, it did not matter how the Employer elected to organize the work.
Article 31.15 in the 2002-2004 collective agreement states:
Article 31A.15 CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED
POSITIONS
31A.15.1.1 Where the same work has been performed by an employee in the Unclassified
Service for a period of at least eighteen (18) consecutive months…, and where the ministry
has determined that there is a continuing need for that work to be performed on a full-time
basis, the ministry shall establish a position within the Classified Service to perform that
work.
…
31A.15.2. For the purpose of Article 31A.15 “full-time” shall mean a minimum of one
thousand seven hundred and thirty two and three quarter (1,732.75) straight time hours…in
each year….
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The same language appears in the 2005-2008 collective agreement.
[74] The Union, of course, calculates Ms. Haggith’s transcription hours based on its 1.5
page/hour formula, and submits that she should have been converted to full-time status in
January 2006. It further contends, in the alternative, that she could have been converted, under
the 5 page/hour calculation, in either 2008 or 2009. The Union submits that because her
contractual entitlements crystallized in 2003, when the grievance was filed, Appendix 32 is
irrelevant to her claim and does not apply.
[75] The Employer contends that Article 32 clearly applies and precludes the conversion of
Ms. Haggith to regular full-time status. It submits that the parties agreed upon the FPT
classification for unclassified court personnel, including Court Reporters, on June 24, 2005. It
asserts that in that agreement, the parties turned their minds to which provisions in the collective
agreement would apply and agreed that Article 31, including 31A.15, would not apply. It cites
Re OPSEU (Vitorino et al.) and Ministry of Government Services, GSB No. 2009-1293
(Abramsky) at par. 22 for the proposition that such restrictive language “clearly limits the
articles that apply….” The Employer submits that the Union cannot simply ignore the parties’
agreement concerning FPTs simply because the grievance was filed in 2003. The Employer
notes that the Board’s decision, issued on July 27, 2006, was issued after the FPT agreement, and
that in determining remedy the Board should not ignore that agreement.
[76] The Employer further contends that even if the conversion provision applied to Ms.
Haggith, she did not meet the criteria found in the provision. It submits that she did not work the
requisite hours, nor has the Ministry determined that there is a “continuing need for the work on
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a full-time basis.” Re OPSEU (Policy Grievance) and Ministry of Finance, GSB No. 1237/98
(Briggs); Re OPSEU (Lynch-Burrus) and Ministry of Community & Social Services, GSB No.
1078/92 (Dissanayake); Re OPSEU (Mistry) and Ontario Human Rights Commission, GSB No.
0569/96 (Verity).
[77] Until June 24, 2005, an unclassified employee had rights under Article 31 of the
collective agreement, including Article 31A.15 – if the criteria for conversion were met. The
calculation of transcript hours, however, must be based on Table 1. Using those figures, I do not
believe that Ms. Haggith had the requisite hours (1732.75) to qualify for conversion in the
eighteen months from January 2004 to June 2005, or from June 2004 to December 2005.
Further, even if she did have the requisite hours, the second part of the standard would also have
to be met. There must be a determination, by the Ministry, “that there is a continuing need for
that work to be performed on a full-time basis.”
[78] In Re OPSEU (Mistry), supra, the Union argued that an unclassified intake officer with
the Ontario Human Rights Commission should have been converted to full-time classified status
because there was a continuing need for intake work to be performed on a full-time basis for at
least another year after her contract had been terminated. The Board dismissed the grievance. It
acknowledged that there was a continuing need for the work, but not necessarily on a full-time
basis. It held, at p. 18:
The issue turns not merely on an ongoing need for the work to be done but on an ongoing
need for the work to be done on a full-time basis. It is without controversy that the
Commission has the right to reorganize the workplace to meet the existing workload and in
so doing to determine the complement of classified staff.
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As the work could be done by existing staff, “there was no continuing need for work to be
performed on a full-time basis so as to require the Commission to establish an additional
classified position.”
[79] Without question, there is a “continuing need” for the production and certification of
transcripts. The issue in regard to conversion, however, is whether the Ministry, acting in a bona
fide manner, has determined that there is a “continuing need for that work to be performed on a
full-time basis”. Therefore, under the case law, contrary to the Union’s assertion that how the
Employer elects to organize the work force is irrelevant – it is highly relevant, provided that the
Employer acted in good faith. There is no evidence, and no assertion, that the FPT agreements
were agreed to – by either party - in anything but good faith.
[80] This is another example of trying to “reverse engineer” the past, arising from the fact that
transcript work was not treated by the Employer as bargaining unit work, despite the Board’s
July 2006 decision. Accordingly, the Ministry’s “intent” as to this work has to be determined by
its actions, generally, in regard to Court Reporters.
[81] In light of the parties’ June 24, 2005 agreement, I cannot conclude, on the balance of
probabilities, that the Ministry “determined that there is a continuing need for that work to be
performed on a full-time basis.” Quite to the contrary, the June 2005 agreement creates an
entirely new category of employee for the Ministry to meet its operational needs – the FPT
employee, and by agreement of the parties, Article 31 no longer applied. The June 24, 2005
Memorandum of Agreement was “effective as of the date of ratification of the collective
agreement”, was “considered part of the collective agreement.”
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[82] With the June 24, 2005 agreement, the collective agreement applicable to Ms. Haggith
changed. Just because the policy grievance was filed in 2003 does not mean that changes to the
collective agreement become irrelevant. The parties’ respective rights and obligations are not
frozen in time, and changes to the agreement, including changes to the wage rate and benefits,
cannot be ignored as if they did not exist. They do not apply retroactively – unless specifically
agreed otherwise – but they apply once negotiated.
[83] In this regard, it is also relevant that the FPT agreement was revised by the parties on
February 26, 2009. Once again, the parties turned their minds to the applicable collective
agreement provisions which applied to FPTs such as Ms. Haggith, and Article 31 was not
included.
[84] The June 2005 agreement, and the successor agreement regarding FPTs, significantly
impacts the issue of conversion in two ways. First, it establishes that, after that date, the
Employer did not intend that the ongoing need for the work would be done on a full-time basis.
Second, as unclassified employees became classified FPTs, conversion was no longer applicable
to them as FPTs under the agreement. Consequently, under the collective agreement in force at
the relevant time periods, Ms. Haggith was not eligible for conversion.
B. Premium Payments
[85] The Union asserts that, under the collective agreement, Ms. Haggith should receive
premium payments – overtime, shift premium, holiday pay, rest periods, stand-by pay, call-in
pay, travel pay and time, and meal allowances - for the time she worked to produce transcripts.
It relies on UN 6 (Shift Premium); UN 8 (Overtime), UN 9 (Call Back), UN 10 (Stand-by Time),
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UN 11 (On-Call Duty), UN 12 (Meal Allowance), UN 13 (Holiday Payment), Article 13
(Kilometric Rates), and Article 14 (Time Credits While Traveling).
[86] The Employer asserts that no premium payments are owed. It submits that the parties, in
Appendix 32, turned their minds to which provisions of the collective agreement applied to
Court Reporters and agreed that only those provisions applied, no others. It further submits that
under the terms of the Appendix 32 and UN provisions relied on by the Union, Ms. Haggith has
not met the criteria for such premium payments, and submits that such claims are speculative. In
support of its position, the Employer cites Re OPSEU (Vitorino et al.) and Ministry of
Government Services, GSB No. 2009-1293 (Abramsky, 2010); Re OPSEU (James et al.) and
Ministry of Finance, GSB No. 2003-0232 (Abramsky, 2004); Re OPSEU (Union Grievance) and
Ministry of Correctional Services, GSB No. 1211/99 (Petryshen, 2001); Re OPSEU (Group
Grievance) and Ministry of the Attorney General, GSB No. 0683/99(Abramsky, 2002); Re
OPSEU (Adams Group) and Ministry of the Solicitor General and Correctional Services, GSB
No. 0389/97 (Brown, 2000); Re OPSEU (Union Grievance) and Management Board Secretariat,
GSB No. 2002-2427 (Brown, 2004).
1. Overtime
[87] The evidence established that Court Reporters, within the guidelines established by the
Ministry, generally have flexibility as to when they type transcripts. It also establishes that they
can turn down transcript work or transfer typing responsibility, even though there is a very strong
preference of the Court Reporters to keep the transcript work and the fees generated. Court
Reporters, as Ms. Dunn phrased it, have the “right of first refusal” in regard to transcript work,
but they do have the right to turn it down, transfer it to other Court Reporters, or seek assistance
- 34 -
from supervision. The Ministry establishes time lines for when transcripts are due, but even that
appears to have some limited flexibility. The exception is when an overnight transcript is
ordered to be produced by a judge, or a very quick turn-around is required. Then there is no time
to delegate and the transcript must be done immediately.
[88] Entitlement to overtime, under any of the relevant provisions in the collective agreement
– Article 31A.3 or Appendix 32 – depends on it being “authorized” by the Employer. When Ms.
Haggith was an unclassified employee, overtime applied to “authorized hours of work
performed: … (d) in excess of thirty-six and one-quarter (36 ¼) or forty (40) hours per week
where employees do not have regularly scheduled work days.”
[89] Under the 2005 Memorandum of Agreement, Section 2, Hours Worked Over Annual
Requirement, states:
In addition to the minimum number of hours provided in an employee’s assigned annual
hours category, the Ministry may assign additional overage hours up to 10 percent (10%)
of employees’ assigned annual hours category. All hours worked prior to reaching the
10%) above threshold will be paid at straight time.
At the end of the averaging period, any excess hours standing to the employee’s credit over
and above the 10% overage will be considered overtime.
Although the language of the 2005 FPT agreement may be different, it still provided that the
Ministry had to “assign” additional overage hours.
[90] Similarly, as a FPT under the amended Appendix 32 of the current collective agreement,
Section 3(d) states: “[a]ll authorized hours worked by flexible part-time employees in excess of
36 ¼ hours per week will be paid at the time and one half (1½ ) rate ….”
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[91] The Union does not dispute that overtime must be “authorized” but submits that because
transcript work is part of the job, it is therefore “authorized.” It notes that the “client” for a
transcript is often the Ministry itself, so it submits that it is ridiculous to assert that such work is
not “authorized.” It contends that it was “absolutely authorized.” It also argues that was rare
that others would type Ms. Haggith’s transcripts.
[92] There is no question that transcription is part of the job and, in that sense, “authorized.”
But what is at issue is whether the work was authorized on an overtime basis. Under the
collective agreement, overtime is not something that an employee can decide to undertake on his
or her own initiative. Because there is a cost – and a significant one – overtime must be
specifically authorized by the Employer, or must be “deemed” to have been authorized.
[93] Clearly, there was no explicit authorization by the Ministry for Ms. Haggith to produce
transcripts on an overtime basis. Further, the evidence of Ms. Dunn and Ms. Mann was that
employees could come to them, and do come to them, to request assistance with transcripts and
relief from transcript production. Ms. Haggith testified that there were times that she delegated
typing to others, and that she assisted other Court Reporters who became overwhelmed. She
acknowledged that there was a “stand by” Court Reporter for overflow transcription work, and
that she could have gone to her supervisor for transcript assistance, but never did. Consequently,
in the main, there were avenues that Ms. Haggith could have utilized to avoid having to work in
excess of 36¼ hours in a week.
[94] An exception is when authorization to work overtime may be “deemed” to occur, such as
in the case of an overnight or expedited transcript required by a judge, or a quick turn around is
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mandated and the work cannot be assigned to another reporter. An example of this would appear
to include the testimony of Ms. Black in regard to the overnight transcript she was required to
produce. The situation is different if a Court Reporter chooses to work late or on weekends to
complete transcripts but it is not required to do so.
[95] In Re OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No.
1211/99 (Petryshen), the Board determined at p. 15, based on earlier jurisprudence, that a shift
premium did not have to be paid where the hours worked were the choice of the employee, not
the employer. The Board stated that the prior decisions held that “the Collective Agreement does
not require the employer to assume a premium cost for accommodating an employee’s
preference for more personally suitable working hours.” Likewise, where a Court Reporter
chooses to work late or on weekends to work on transcripts, but is not required to do so by the
Employer, an overtime premium need not be paid.
[96] Further, as an unclassified employee, Ms. Haggith did not have regular hours. Her
calendars show that she was not in court each workday, leaving time available to produce
transcripts, and that many days were “short” days when transcripts could have been typed. The
same is true when Ms. Haggith worked as a flexible part-time employee under the 2009
agreement. She would be scheduled 19.6 hours per week in court, leaving 16.65 hours (over two
work days) per week to type before exceeding 36.25 hours. For those two periods of time, Ms.
Haggith would only be entitled to overtime for transcription hours that may be “deemed”
authorized on an overtime basis after 36.25 hours in a week.
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[97] The situation is a bit more complicated for the period of time that Ms. Haggith worked as
an FPT under the 2005 Memorandum of Agreement. Under that agreement, overtime – if
authorized, or deemed authorized - kicks in after 1100 hours. In my view, however, the regular
production of transcripts is to be paid at straight time even after 1100 hours, unless authorization
for overtime may be “deemed” to have occurred. Treating all transcription hours over 1100 as
overtime is not reasonable under the circumstances. It would, essentially, transform regular
transcript production into overtime. Further, it would treat FPTs far better than full-time Court
Reporters, or indeed any other employee in the public service. It would also be significantly
better than what is required under the Employment Standards Act. I cannot infer such an intent
from the 2005 agreement, which preceded the July 27, 2006 decision.
[98] Consequently, for the periods that Ms. Haggith was an unclassified employee and an FPT
under the 2009 Agreement, she is entitled to overtime on those occasions where she was required
to produce an overnight or expedited transcript, which could not be delegated and which required
her to work in excess of 36¼ hours in a week. In addition, Ms. Haggith, as an FPT under the
2005 Agreement, would be entitled to overtime after 1100 hours, but only for those situations
where she may be “deemed” to have authorization to work overtime.
2. Holiday Pay
[99] As an unclassified employee, Ms. Haggith was entitled to 4.6% of gross pay in lieu of
Holiday Pay pursuant to Article 31A.5. She would also be entitled, if she was “required to
work” on a holiday, at two times her hourly rate for all hours worked. The analysis applied to
overtime is equally applicable here. Entitlement depends on whether the Employer “required”
Ms. Haggith to work on a holiday, or may be deemed to have required it.
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[100] As a FPT, from September 25, 2006 to the amended agreement in 2009, the parties
agreed that Holiday Pay under Article 47 or UN 13 would not apply. Nor does it apply under the
revised FPT agreement.
[101] The only evidence that Ms. Haggith was required to work on a holiday was Thanksgiving
Day in 2006 – after she became a FPT employee. Ms. Haggith also testified that she had to
prepare a transcript during her Christmas vacation in 2006. There was no evidence, however,
that she actually worked Christmas Day, Boxing Day or New Year’s Day. Further, these
holidays took place after she became an FPT and Holiday Pay was inapplicable under the
collective agreement.
3. Shift Premium
[102] As an unclassified employee, the grievor was eligible for premium pay under UN 6, if
she met the requirements of the provision. As an FPT under the June 24, 2005 Memorandum of
Agreement, there was also no entitlement to shift premiums. Article UN 6, Shift Premiums, was
not one of the articles that the parties agreed applied to FPTs in the 2005 agreement. Article UN
6 was included for FPTs in the revision to Appendix 32, which was effective upon ratification of
the 2009-2012 Collective Agreement and “shall have no retroactive effect.”
[103] Article UN 6 in the 2002-2004 and 2005 – 2008 collective agreement, provided, in
pertinent part, as follows:
UN 6.1.3 Effective on May 5, 2002, an employee shall receive a shift premium of
seventy-eight cents (78¢) per hour for all hours worked between 5:00 p.m. and 7:00 a.m..
Where more than fifty percent (50%) of the hours worked fall within this period, the
premium shall be paid for all hours worked….
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UN 6.2 Notwithstanding Articles … UN 6.1.3 where an employee’s hours of work
normally fall within 7:00 a.m. and 5:00 p.m., the employee shall not be entitled to receive a
shift premium for hours worked between 5:00 p.m. and 7:00 a.m.
…
UN 6.4 Shift premium shall not be paid to an employee who for mutually agreed upon
reasons works a shift for which he or she would otherwise be entitled to a shift premium.
The contract language, except in terms of the amount of the shift premium, is virtually identical
in the 2009-2012 collective agreement.
[104] Article UN 6.1.3 provides that a shift premium payment “shall” be paid for “all hours
worked between 5:00 p.m. and 7:00 a.m.” Under UN 6.2, however, where an employee’s hours
of work “normally fall between 7:00 a.m. and 5:00 p.m.” no premium is required for hours
worked between 5:00 p.m. and 7:00 a.m. In addition, under UN 6.4, no shift premium is paid “to
an employee who for mutually agreed upon reasons, works a shift for which he or she would
otherwise be entitled to a premium.”
[105] Read as a whole, it seems clear that the parties limited shift premium pay to those
employees who are required by the employer to work from 5:00 p.m. to 7:00 p.m., and to
preclude such payment to those who regularly work from 7:00 a.m. to 5:00 p.m., but also work,
at times, after 5:00 p.m., or who choose or prefer to work evenings and nights. This is consistent
with the Board’s jurisprudence. In Re OPSEU (Union Grievance) and Ministry of Correctional
Services, GSB No. 1211/99 (Petryshen), the Board determined at p. 16, that shift premiums were
to compensate employees who were required by the employer to work less desirable hours:
Premium payments are intended to provide additional compensation to employees who
work during less desirable periods of time. [Article] 6.4, in effect, provides that a premium
will not be paid for work during those less desirable hours when an employee requests to
work a particular shift as a matter of personal preference or convenience and that request is
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agreed to by the Employer. In these circumstances, the working hours can no longer be
considered to be less desirable and the Employer is not required to pay the premium.
[106] The evidence shows that Ms. Haggith was normally scheduled for taking the record in
court, from between 7:00 a.m. to 5:00 p.m. As an FPT, she also had time, on non-scheduled
days and when court ended early, to type transcripts during day-time hours. Consequently, she
falls within the exception to Article UN 6.1 found in UN 6.2. To the extent Ms. Haggith
preferred to type transcripts during the evening (if she had other commitments or responsibilities
during the day) that would not attract a premium under UN 6.4.
[107] The evidence was clear that many Court Reporters type transcripts in the evening, or
early in the morning, or on weekends. For some, such as Ms. Dunn who liked to type transcripts
in the quiet hours of 4:00 a.m. to 7:00 a.m., that was her preference. Ms. Mann’s preference was
to type transcripts in the evening. For others, it felt “required” because they had to produce the
transcripts within a set period of time, and the only time available was evenings and weekends.
But those Court Reporters would fall under the exception in UN 6.3, because their hours of work
“normally fall” between 7:00 a.m. and 5:00 p.m.
4. Stand By and On-Call Duty
[108] As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements,
Ms. Haggith was entitled to Stand-By Time, UN 10, and On Call Duty, UN 11, if she met the
requirements for receiving such premiums. She was not entitled to them under the June 24, 2005
Memorandum of Agreement. Article UN 11, but not UN 10, was added, however, in the
February 28, 2009 revision.
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These provisions state as follows, in relevant part:
Article UN 10 – STAND-BY TIME
UN 10.1 “Stand-By Time” means a period of time that is not a regular working period
during which an employee is required to keep himself or herself:
(a) immediately available to receive a call to return to work, and
(b) immediately available to return to the workplace.
UN 10.2 No employee shall be required to be on stand-by unless such stand-by was
authorized in writing by the supervisor prior to the stand-by period, except in
circumstances beyond the Employer’s control.
UN 10.3 Where stand-by is not previously authorized in writing, payment as per UN 10.4
shall only be made where the supervisor has expressly advised the employee that stand-by
duty is required.
UN 10.4 When an employee is required to stand-by, he or she shall receive payment of
the stand-by hours at one half (1/2) his or her basic hourly rate with a minimum credit of
four (4) hours pay at his or her basic hourly rate.
Article UN 11 – ON –CALL DUTY
UN 11.1 “On-Call Duty” means a period of time that is not a regular working period,
overtime period, stand-by period or call back period during which an employee is required
to respond within a reasonable time to a request for:
(a) recall to the work place, or
(b) the performance of other work as required.
UN 11.2 It is understood that a return to the workplace may not be necessary in all
situations.
…
UN 11.5 No employee shall be required to be on-call unless such on-call duty was
authorized in writing by the supervisor prior to the on-call period except in circumstances
beyond the Employer’s control. …
UN 11.6 Where on-call is not previously authorized in writing, payment as per Article
UN 11.7 shall only be made where the supervisor has expressly advised the employee that
he or she is on-call.
UN 11.7 Effectively February 26, 2009, where an employee is required to be on-call, he
or she shall receive one dollar and twenty-five cents ($1.25) per hour for all hours that he
or she is required to be on-call.
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[109] In Re OPSEU (Adams Group) and Ministry of Solicitor General and Correctional
Services, GSB No. 0389/97 (R. Brown), the Board distinguished between an employee being
required to have “general availability” to work and being required to work, with the possibility of
discipline if they do not. The Board determined at p. 17 as follows:
Both on call and stand-by pay are designed to compensate an employee for being available
in case he or she is needed to work. The tacit assumption underlying each form of
payment is that, throughout the period for which it is paid, an employee must take calls and
must work if asked. As employer counsel argued, the collective agreement should not be
interpreted so as to entitle an employee to payment for any period when he or she is
permitted either not to receive a call or not to work if contacted.
Under the facts in that case, although the employees were “required to maintain a level of
‘general availability’ satisfactory to management,” they could miss a call or refuse to work, and
“they were not disciplined.” Consequently, he concluded at p. 17 that the unclassified staff
involved in that matter “were not required to maintain either of the states of readiness described
in the collective agreement” and therefore were “not entitled to stand-by or on-call pay.” Re
OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 2002-2427 (R.
Brown).
[110] The evidence here did not establish that Ms. Haggith was ever asked to be ready to return
to work immediately to produce a transcript under UN 10, nor was any such requirement to be on
stand-by authorized in writing by her supervisor or was she expressly advised of such. Likewise,
there is no evidence that she met the requirements for “on call duty” under UN 11. While there
might be some transcript requests that required prompt attention, there was no written or verbal
authorization for on call duty, nor was there evidence that Court Reporters were ever disciplined
in this regard.
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5. Meal Allowance
[111] As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements,
Ms. Haggith was entitled to a meal allowance under UN12, if the requirements for this benefit
were met. It provides:
ARTICLE UN 12 – MEAL ALLOWANCE
UN 12.1.1
An employee who continues to work more than two (2) hours of overtime immediately
following his or her scheduled hours of work without notification of the requirement to
work such overtime, prior to the end of his or her previously scheduled shift, shall be
reimbursed for the cost of one (1) meal to six dollars ($6.00) except where free meals are
provided or where free meals are provided or where the employee is being compensated
for meals on some other basis.
UN 12.1.2 A reasonable time with pay shall be allowed the employee for the meal break
either at or adjacent to his or work place.
…
UN 12 was not one of the provisions applicable to FPTs under the 2005 Memorandum of
Agreement, nor was it included in the 2009 revision.
[112] Based on the evidence, and the Board’s case law, Ms. Haggith is not eligible for a meal
allowance. At the time, as an unclassified, on-call employee, she did not have regularly
“scheduled hours.” In Re OPSEU (Group Grievance) and Ministry of Attorney General, GSB
No. 0683/99 (Abramsky), at p. 11, the Board determined that unclassified court personnel did not
have regularly scheduled hours:
Accordingly, the court does not have specific, “scheduled hours”, and neither do the
grievors. The court – and the grievors – have a specific starting time, but they do not have
a specific ending time. To have “scheduled hours”, there must be both a specific starting
and ending time….
[113] Working more than two hours of overtime beyond one’s “scheduled hours” without
notice is one of the requirements of a meal allowance. As an unclassified, on-call Court
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Reporter, Ms. Haggith did not have regularly “scheduled hours” and therefore could not meet the
contractual requirements for a meal allowance under UN 12. Adding her transcript hours into
the calculation does not change this because she had flexibility as to when transcription was
done. Nor, except in the situations where overtime may be “deemed” to have been authorized,
can it be held that she worked “overtime.”
6. Rest Periods
[114] UN 7, Rest Periods, applied to Ms. Haggith as an unclassified employee under the 2002-
2004 and 2005-2008 collective agreements, as well as an FPT under both the 2005 Memorandum
of Agreement and the 2009 revision. UN 7, in all applicable agreements, provides as follows:
ARTICLE UN 7 – REST PERIODS
UN7.1. The present practice for rest periods in each shift shall be maintained.
[115] In order to have a “shift”, the GSB case law requires “a specified time of work which
starts and ends on set times on a regular basis.” Re OPSEU (Union Grievance) and Ministry of
Correctional Services, GSB No. 1211/99 (Petryshen); Re OPSEU (James et al.) and Ministry of
Finance, GSB No. 2003-0232 (Abramsky). As an on-call unclassified employee, with hours tied
to the hours that a court was in session, Ms. Haggith did not have a regular shift.
[116] There was no evidence concerning scheduling in regard to Ms. Haggith’s work as an
FPT, except that she was scheduled 19.6 hours per week. To the extent she had a regular in-
court shift, any practice of rest periods would have applied to her. The inclusion of transcript
work, however, would not increase that because that work was not “scheduled” by the Ministry
as part of a regular shift. Ms. Haggith could perform that work when she wanted – during the
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day, evening, or the weekend. She did not have a regular shift, with specific starting and ending
times in terms of transcript work.
7. Call-Back and Travel Pay/Kilometres
[117] As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements,
Ms. Haggith was not eligible for Call Back pay under UN 9. UN 9 did not apply to unclassified
employees. Nor did it apply under the 2005 Memorandum of Agreement. Instead, the parties
agreed, in Section 7, as follows when an FPT is directed to return to work:
SECTION 7 – ADDITIONAL REPORTING ALLOWANCE
…
Where the employee has been directed to return to work on the same day and there is no
work or less than two (2) hours work, he or she shall receive an additional two (2) hours’
credit towards his or her annual assigned hours.
UN 9 was added to the FPTs in the 2009 Memorandum of Agreement. It provides:
ARTICLE UN 9 – CALL BACK
UN 9. 1 An employee who leaves his or her place of work and is subsequently called back
to work prior to the starting time of his or her next scheduled shift shall be paid a minimum
of four (4) hours pay at one and one-half (1½ ) times his or her basic hourly rate. …
The Union asserts that this provision applies when Ms. Haggith was required to return to work
for transcript production – to pick up the materials required to produce a transcript on short
notice.
[118] The Union further submits that there should be a travel allowance for reporting back to
work. Article 13 (Kilometric Rates) and Article 14 (Time Credits While Travelling) applied to
Ms. Haggith as an unclassified employee and as a FPT, under both the 2005 and 2009
agreements. Article 13 and 14, provide, in relevant part, as follows:
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ARTICLE 13 – KILOMETRIC RATES
13.1 If an employee is required to use his or her own automobile on the Employer’s
business the following rates shall be paid effective April 1, 2001: …
ARTICLE 14 – TIME CREDITS WHILE TRAVELLING
14.1 Employees shall be credited with all time spent in travelling outside of working
hours when authorized by the ministry. …
14.3 When travel is by automobile and the employee travels directly from his or her home
or place of employment, time will be credited from the assigned hour of departure until he
or she reaches his or her destination and from the assigned hour of departure from the
destination until he or she reaches his or her home or place of employment.
…
14.5 When an employee is required to travel on his or her regular day off or a holiday
listed in Article 47 (Holidays), he or she shall be credited with a minimum of four (4)
hours. …
[119] The Employer argues that the Employer imposed no requirement that Ms. Haggith return
to work in order to produce a transcript, and that she has established no entitlement to call back
pay or travel entitlements.
[120] There was no evidence in the record that Ms. Haggith was required to return to work by
the Employer in order to retrieve the tapes and log notes to produce a transcript on short notice,
after the August 29, 2009 collective agreement came into effect. Prior to that time, Section 7 of
the June 24, 2005 agreement would apply. Again there is no evidence that Ms. Haggith was
directed to return to work by the Employer to produce a transcript, on the same day she was
already scheduled. Nor is she entitled to travel time reimbursement or kilometre reimbursement,
under the terms of Articles 13 and 14.
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8. Vacation Credits
[121] The Union asserts that Ms. Haggith is owed 110 hours toward vacation credits, based on
the time that she worked on a transcript during her Christmas vacation in 2006. The evidence
established that the request for the transcript came in mid-December 2006 and that she
completed the work and billed for the transcript on January 17, 2007. The actual days (between
mid-December and mid-January) that she worked on the transcript is not in the record, nor were
her actual vacation days. There is no evidence that Ms. Haggith tried to enlist anyone else to
assist her with that work, or that she approached supervision for help. There is, therefore,
insufficient evidence that she was required to perform that work during her vacation by the
Employer. Under these circumstances, I conclude that she is not entitled to restoration of her
vacation credits.
9. Out of Pocket Expenses
[122] The Union asserts that Ms. Haggith should be reimbursed by the Employer for the
expenses she incurred in the production of transcripts – her computer, transcriber, printer, paper,
ink, binding machine, office furniture, filing cabinets and so forth. The Employer contends that
there is no collective agreement provision under which Ms. Haggith is entitled to such expenses.
[123] This is another one of those situations of trying to fit a “circle into a square.” By treating
Court Reporters as independent contractors for transcription work, the Employer required them
to work from home (or their own office) and supply the “tools” they required. It is an unusual, if
not unique, situation – and one that the collective agreement simply does not address. The only
provisions in regard to “expenses” under the collective agreement pertain to meals and relocation
expenses. The situation is further complicated because most of the equipment for which the
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Union seeks reimbursement may be used for non-transcription purposes – the computer, the
printer, the office furniture and supplies. The transcriber, in contrast, is clearly limited to
transcript production. I would note that in the July 2006 decision there was evidence that
transcribers were, at times, provided by the Ministry.
[124] Based solely on the collective agreement, there is no entitlement to reimbursement. I
cannot conclude that the Employer would have paid for this equipment and/or supplies if it had
not violated the collective agreement. Clearly, this should be (and could have been) the subject
of collective bargaining.
3. Off-Set of Transcription Income
[125] The Union argues that there should be no set off of the transcript income that Ms.
Haggith earned because it was paid pursuant to statutory regulation. It submits that she is
entitled to both payments because the payments flow from separate legal documents. She is
entitled, the Union asserts, to wages under the collective agreement and payment for transcripts
under the regulation. It submits that this would not constitute an improper double recovery. It
also contends that to allow the deduction would amount to an improper amendment of the
collective agreement. In support, the Union cites to Re Altman v. Steve’s Music Store Inc. [2011]
O.J. No. 1136 (Ont. Sup. Ct. J.); Re Sills v. Children’s Aid Society of the City of Belleville [2011]
O.J. No. 1577 (Ont. C.A.); Re Antonacci v. Great Atlantic & Pacific Co. of Canada [2000] O.J.
No. 40 (Ont. C.A.).
[126] The Employer asserts that payment of wages for the production of transcripts without a
set off for the income that Court Reporters have already received for such work would constitute
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a double recovery, and make Ms. Haggith more than “whole.” It submits that there is no
evidence that the Employer, or the parties, intended that Court Reporters should receive both the
regulated rate and wages. It submits that the regulation rate was predicated on the Court
Reporters working as independent contractors when they produced transcripts, not as employees.
It argues that just because transcript fees are governed by regulation does not exempt them from
the principles of mitigation that all earnings should be deducted from a damage award where
there is a violation of a contract. In support, the Employer cites to Re Michaels v. Red Deer
College, supra; Re City of Toronto and Toronto Civic Employees’ Union, Local 416
(Braithwaite), supra; Re OPSEU (Grinius) and Ministry of Citizenship, supra; Re Sylvester v.
British Columbia [1997] 2 S.C.R. 315 (S.C.C.); Re Kolacynski v. Benz Sewing Machines Ltd.
[2002] O.J. No. 1117 (Ont. S.C.J.); Re Parsons v. IMP Group Ltd. [2007] C.L.A.D. No. 377
(Flynn); Re Dowsley v. Viceroy Fluid Power International Inc. [1997] O.J. No. 2360 (Ont. C.A.)
[127] In Re Sylvester v. British Columbia, supra, the Supreme Court of Canada was deciding
whether disability payments received by the employee during his notice period should be
deducted from the damage award, where the disability plan was established and paid for solely
by the Employer. The Court decided that “[t]he question of deductibility …turns on the terms of
the employment contract and the intention of the parties.” (Par.12) Under the facts there, the
Court determined that there was no intent that the employee receive both disability benefits and
damages for wrongful dismissal. The two payments were based on opposite assumptions about
his ability to work – damages based on the premise that he would have worked during the notice
period, and disability payments on the premise that he could not work. Further, had the
employer provided proper notice and not breached the employment contract, the employee
would not have received both disability payments and salary during the notice period. The Court
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noted that there might be “cases where an employee will seek benefits in addition to damages for
wrongful dismissal on the basis that the disability benefits are akin to benefits from a private
insurance plan for which the employee has provided consideration” but that was not the case
there. (Par. 22).
[128] The decisions in Re Sills v. Children’s Aid Society of the City of Bellville, supra and Re
Altman v. Steve’s Music Store, Inc., supra, rely on the distinction noted in Re Sylvester, supra.
In Re Sills, supra at par. 45, the Court stated that it was “reasonable to infer that the parties
would agree that an employee should retain disability benefits in addition to damages for
wrongful dismissal where the employee has effectively paid for the benefits in question.” This
was also the case in Re Altman, supra at par. 112.
[129] The Supreme Court in Sylvester, supra, also distinguished payments received under a
statutory scheme, such as employment insurance and workers’ compensation payments. In Re
Dowsley v. Viceroy Fluid Power International Inc. supra, the Ontario Court of Appeal
concluded, without much explanation, that workers compensation benefits should be deducted
from damages awarded during the notice period.
[130] It seems to me that none of these cases are directly applicable, but some principles may
apply. If one examines the intention of the parties in terms of whether transcript income should
be deducted from any contractual violation assessment, one must start with the collective
agreement. The collective agreement is silent on the issue of payment for transcript work and
there have been no relevant changes to the collective agreement in terms of Court Reporters and
transcript work since the decision in this matter in July 2006. The Employer, prior to the
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decision, treated Court Reporters as independent contractors in connection with this work – with
payment/income for such work to be exclusively pursuant to the regulation. It still takes that
approach, even though the decision was not appealed. The impact of my decision that the
preparation and certification of transcripts is bargaining unit work, however, means that the
collective agreement applies. Exactly what that means, in terms of remedy, is what this decision
addresses. It seems clear to me, however, that in terms of “intent”, the Employer, at least, did
not intend that employees receive both wages and regulated fees. Nor did the Union, prior to the
Hunt grievance and my decision. Even after the decision, the “status quo” was continued by
agreement for two years, and when neither the remedial issues nor the “go forward” issues could
be resolved, the matter came back to me for remedy. There is nothing in the collective
agreement, which has not substantively changed, from which I may infer that the parties intended
that Court Reporters receive both wages as well as other entitlements under the collective
agreement and the regulated fees.
[131] Under the principles of mitigation, moreover, the transcript income earned by Court
Reporters under the regulation should be offset against wages paid for breach of the collective
agreement for the same work. In Re City of Toronto, supra, Arbitrator Tacon reviewed both
court and arbitration decisions concerning off-sets in regard to wrongful dismissal. She quotes,
at par.31, a decision by Arbitrator Richard Jackson in Re Richmond Intermediate Care Society
and H.E.U. (Evans), Award No. A-073/00A in which he quotes the following passage from
Cockburn v. Trusts & Guarantee Co. (1917), 38 O.L.R. 396, 33 D.L.R. 159, affirmed, 55 S.C.R.
264:
…persons who earn monies during periods when they are under an obligation to mitigate
their damages are accountable for those monies if the monies are seen as having arisen as a
consequence of the breach. That is, just as the offending party must account for all monies
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lost by reason of the breach, the aggrieved party must account for all monies earned as a
consequence of the breach.
Applying that approach to the facts before her, a dispute about whether certain earnings should
be offset, Arbitrator Tacon determined as follows at pars. 43 and 44:
[T]he crux of the right to compensation is that the employee be put in the same position as
would have obtained, as far as possible, had the breach of the collective agreement (or the
right to reasonable notice at common law) not occurred. Implicit is that the compensation
reflect actual losses sustained by the employee. To exclude “actual earnings” in calculating
“actual losses” is not a sustainable position. …
In summary, based on the cases arising at arbitration and the judicial realm, and consistent
with my view of the fundamental principles regarding compensation and mitigation, I find
that the grievor’s actual earnings in the two disputed periods are to be included in the set
off against the compensation to which he would otherwise be entitled.
[132] In this case, just as the Employer must account to Ms. Haggith for monies she lost by
reason of its breach, Ms. Haggith must account for all monies earned as a consequence of the
breach. By treating Court Reporters as independent contractors, and continuing to do so, Ms.
Haggith continued to operate as an independent contractor and earned transcript income under
the regulation for that work. Her “actual earnings” must be off set against her “actual losses.”
Under the circumstances of this case, the fact that her transcription income came about because
of regulation of such fees does not preclude it from being offset against the claim she is making
for lost wages and benefits for the very same work. Doing so does not amount to an amendment
of the collective agreement.
[133] Transcription income figures are to be determined from Ms. Haggith’s T4A forms and
her transcription invoices, not from her tax returns. Her transcription income is to be off set
against any monies owed to her by the Employer’s breach of the collective agreement.
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4. Income Tax Considerations
[134] The Employer asserts that the tax savings that Ms. Haggith enjoyed by virtue of her self-
employment status under the Income Tax Act and the reduced amounts that she claimed as
business income on her tax returns should be considered by the Board in assessing its “make
whole” relief. In support, the Employer relies on Re OPSEU (Grinius), supra; Re OPSEU
(Fitch) and Uxbridge/Stouffville Ambulance Service, GSB No. 2878/92 (Dissanayake); Re
OPSEU (Montgomery/Rankin) and Ministry of Health – Ottawa-Carleton Regional Ambulance
Service, GSB no. 2624/94 (Finley); Re OPSEU (Latimer) and Ministry of Community Safety and
Correctional Services, GSB No. 1995-0131 (Finley); Re Keizer v. Hanna [1978] 2 S.C.R. 342
(S.C.C.). The Employer argues that Ms. Haggith’s net income from transcript production as an
independent contractor exceeds what her income would have been under the collective
agreement, less required deductions, so that she suffered no losses for any of the years in
question.
[135] The Union argues that the Employer should reap no financial benefit from its continuing
violation of the collective agreement. It submits that the Employer is improperly attempting to
apply Re OPSEU (Grinius), which was to foster a make whole remedy by considering the
negative tax consequences of a lump sum payment. It argues that it would be wrong for the
Employer to violate the collective agreement by treating Ms. Haggith as an independent
contractor, instead of under the collective agreement, and then try to take advantage of that fact –
when it created the situation in the first place.
[136] There is dicta in Re OPSEU (Grinius), supra, that supports the Employer’s position. In
that decision, Vice Chair Fisher determined, at p. 10, that the grievor “suffered a demonstrable
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and significant loss due to the extra tax burden as a result of receiving four years’ income in one
year.” He also determined that the remedial award had to consider such tax consequences. As he
concluded at pp. 13-14:
We disagree with the Employer that this is strictly a problem between the Grievor and
Revenue Canada. The employment relationship between these parties exists in the legal
framework of the laws of Canada, including the Income Tax Act. It is within that existing
framework that the contractual damages are calculated. If the present tax laws are such so
that receiving a large lump sum is less favourable than periodic payments, then it is proper
that the Employer pays the costs caused by this situation, as they caused the dismissal in
the first case. If on the other hand, the tax law was such that it was more favourable for an
employee to receive a large lump sum rather than periodic payments, it would be open to
an Employer to argue that it should not have to pay the employee the entire amount of his
back wages, but only that amount, which would put the employee in the same net tax
position as if he had received his regular wages during the same period.
The guiding principle with respect to compensation awards is that a reinstated employee is
to be put in the same economic position he or she would have been had the dismissal not
occurred. This means that the employee should not be any worse off, nor any better off
than if the dismissal had not occurred in the first place.
[137] Although Re OPSEU (Grinius) has been followed, there are no decisions in which the
Employer has argued that it should not have to pay the entire amount of an employee’s back
wages in order to place the employee in the “same net tax position” as if he had received his
regular wages during the same period – until now. The unusual facts of this case – and the
significant deductions permitted to self-employed persons under the Income Tax Act as well as
the ability to self-report income – create the flip-side noted in Re OPSEU (Grinius) – where the
Employer is arguing that the tax advantages enjoyed by Ms. Haggith, as reflected in her income
tax returns, should lower, or eliminate, any potential liability for wages and other contractual
benefits that it might owe her.
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[138] I note that the cited portion of Re OPSEU (Grinius) is dicta – not the holding of the case.
It is therefore not binding on me, and I may consider the positions of the parties on their own
merits.
[139] After careful consideration, it is my view that it would be inappropriate to consider the
tax benefit enjoyed by Ms. Haggith in determining a remedial award in this case. In so
concluding, I concur with the decision of the Ontario Court of Appeal in Re Antonacci v. Great
Atlantic & Pacific Co. of Canada, supra. In that case, the Court determined that the Workers’
Compensation Benefits received by Mr. Antonacci during his notice period were deductible from
the damage award. The Employer argued, however, that since Workers’ Compensation benefits
were not subject to income tax, the benefits should be “grossed up” to reflect that benefit, for if
not, the plaintiff would effectively be overcompensated by the Employer. The Court of Appeal
rejected that approach, stating at par 21:
The “loss” resulting from any resulting overcompensation is to Revenue Canada, not to the
employer. The rule against double recovery is not absolute. It admits of certain exceptions,
particularly where there are competing policy considerations. In a case such as this one, it
would be against public policy to make it more profitable for the employer to pay damages
for the breach of contract than to perform the contract. Further, to require an assessment of
the plaintiff’s liability to pay tax in every case where deductions are made from a damage
award would give rise to considerable practical difficulties that would result in an
unwarranted increase in the cost of litigation. …
[140] In this case, despite the Board’s July 2006 decision, the Employer has continued to treat
Court Reporters as independent contractors in regard to transcript production, rather than as
employees with rights under the collective agreement. I conclude that the same public policy
considerations applicable in Re Antonacci, supra, are applicable here. As the Court stated: “It is
against public policy to make it more profitable for the employer to pay damages for the breach
of contract than to perform the contract.” Allowing a net tax comparison, as the Employer
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suggests, would reduce any amounts the Employer owes to Ms. Haggith, making it more
profitable for it to continue its breach rather than abide by the collective agreement.
[141] It has been the Employer’s choice to continue to treat Court Reporters as independent
contractors for the production of transcripts. This, in turn, requires Court Reporters to treat their
transcription income as business or professional income, and they have every right, under the
circumstances, to take full advantage of the deductions and benefits offered to “self-employed”
individuals under the Income Tax Act. Any issues created by the manner in which Ms. Haggith
completed her tax returns are between her and Revenue Canada. The Employer should not be
benefitted by reducing any monetary compensation owed to Ms. Haggith.
[142] It is possible that this determination may, as the Employer submits, put Ms. Haggith in a
situation in which she is “better off” than if the contractual violation had not occurred. The
Ontario Court of Appeal, in Re Antonacci, supra, faced a similar contention, but ruled that the
“rule against double recovery is not absolute.” Simply put, it is untenable, and contrary to public
policy, for the Employer to continue to violate the collective agreement yet seek to benefit in
terms of remedy from the situation its actions created.
[143] This ruling is not to “punish” the Employer for its actions. It is not a form of punitive
damages: Re OPSEU (Gibbon) and Ministry of Correctional Services, supra. As counsel for the
Employer correctly stated, the Employer’s failure to abide by the Hunt decision is not before me.
Instead, for the reasons set out above, I conclude that the Employer should not benefit, in terms
of remedy, from its actions.
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Conclusion
1. The evidence establishes, on the balance of probabilities, that the transcription page/hour
rate is as follows, and Ms. Haggith’s transcription hours must be calculated on this basis:
(a) Beginner (0 to 1 year) – 6.35 pages/hour
(b) Intermediate (1 to 2 years) – 8.22 pages/hour
(c) Experienced (2+ years) – 9.76 pages/hour
2. Ms. Haggith is not entitled to conversion under Article 31A.15.
3. Ms. Haggith is entitled to overtime only for instances where authorization to work
overtime may be “deemed” to have occurred.
4. Ms. Haggith is not entitled to receive premiums for insurance that the Employer did not
pay, but would be entitled, subject to proof, for any losses caused to her.
5. Ms. Haggith is not entitled to the additional benefits under the collective agreement
sought by the Union.
6. Under the principles of mitigation, transcript income earned by Ms. Haggith under the
regulations is to be offset against any monies owed to her by the Employer under the
collective agreement.
7. The Employer is not entitled to a “net/net” income comparison in calculating any monies
owed to Ms. Haggith.
8. This matter is remitted back to the parties for the calculations to determine Ms. Haggith’s
losses, if any, as set out in this decision.
9. I shall remain seized.
Dated at Toronto this 17th day of September 2012.
Randi H. Abramsky, Vice-Chair