GSB#1773/99, 2066/99, 2082/99

OPSEU#00B035,00E045, 00E052

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Group Grievance, Anten et al., Group Grievance Lau, et al., Brar)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Finance)

Employer

BEFORE Michael V Watters Vice-Chair

FOR THE E. Holmes, Counsel GRIEVOR Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE M. Nixon, Counsel EMPLOYER S. Patterson, Counsel Legal Services Branch Management Board Secretariat

HEARING June 1, 2000, November 9, 2000, November 15, 2000, November 29, 2000, December 19, 2000 and March 1, 2001.

DECISION

The grievance, dated August 31, 1999, which led to this proceeding, was filed on behalf of a group of twenty-four (24) Investigators working in the Special Investigations Branch in the Tax Revenue Division of the Ministry of Finance. The grievance reads, in part:

"STATEMENT OF GRIEVANCE

We...grieve that we are not being compensated appropriately in accordance with the collective agreement(s) including, but not limited to, article, ADM 16.1 and the Salary Schedule for the Administrative Category Bargaining Agreement. We are presently paid at the Investigator F.O. 5 level. We should have been included in the classification adjustment for the Administrative Category for the new Tax Auditor classification standards.

SETTLEMENT DESIRED

We...the Investigators F.O.5, be included in the classification adjustment for the Administrative Category for the Tax Auditors classification with full retroactivity and interest on all monies owed effective January 1st, 1999."

(Exhibit #2, Tab #1)

Grievances were subsequently filed on behalf of a number of other Investigators. These grievors, in effect, asked to be included in the group grievance reproduced above.

A number of classification adjustments in respect of the Administrative Bargaining Unit Collective Agreement were agreed to during the negotiations for the collective agreement covering the period January 1, 1999 to December 31, 2001. The adjustments are contained within a Letter of Understanding found between pages 188 and 191 of the collective agreement. The material part of this Letter of Understanding provides:

ADM

Tax Auditors

The Employer shall develop new Tax Auditor series and class standards for the positions of Tax Auditors in the Ministry of Finance (currently they are in the Financial Officer series, except for 4 employees in the Tax Auditor series, level 3).

The new ranges shall have the following minima and maxima:

Min Max % Increase

Over F01-5

Tax Auditor 1: 37,595 43,313 5.17

Tax Auditor 2: 41,910 48,314 2.13

Tax Auditor 3: 47,457 55,919 6.90

Tax Auditor 4: 51,910 62,565 6.64

Tax Auditor 5: 58,318 70,515 11.19

Steps will move by same percentages, and employees will remain

at their current step.

The 1999 general wage increase will be applied to the above ranges.

ADM

Inspectors/Investigators:

It is agreed that the employer will undertake a review of the following classes, with a view to updating/ revising class standards and establishing a new pay framework for the identified investigator classes.

The pay framework shall have 3 to 4 salary ranges.

The minimum and maximum of the two highest ranges shall

be as follows:

2nd highest salary range:

minimum $1,000 per week maximum $1,158 per week

highest salary range:

minimum $1,080 per week maximum $1,242 per week

The lower salary ranges as well as steps between the minimum and the maximum shall be established upon completion of the new class standards.

Highest salary range: Populations

Environmental Officer

5 investigator jobs 66 (approx.)

Fire Services Investigator 2 10

2nd highest salary range:

Employment Standards Auditor 2 104

Environmental Officer

4 investigator jobs 195 (approx.)

Fire Services Investigator 1 32

Human Rights Officer 2 45

Occupational Health &

Safety Inspector 2 202

The lower salary range(s):

Employment Standards Auditor 1 29

Public Health Inspector 3 1

Safety Instruction Officer 2 7

Safety Instruction Officer 3 3

Field Worker 1, Homes for

special care 4

TOTAL 689

Employees, whose current salaries are below the minimum of the new range for their revised class, shall move to the new minimum.

Employees whose current salaries are equal to or between the minimum and maximum of the new range for their revised class shall move to the step that is closest to but not less than their existing rate of pay.

Employees shall retain their current hours of work schedule and overtime entitlements.

The 1999 general wage increase will be applied to the above ranges.

The Employer agrees there will be no wage decrease as a result of the updating/revising class standards and establishing a new pay framework for the identified investigator classes.

The thrust of all of the grievances now before the Grievance Settlement Board is that the Investigators should have received the classification adjustments provided to Tax Auditors pursuant to this Letter of Understanding.

On the first day of hearing, counsel for the Employer raised three (3) preliminary issues, which may be summarized as follows:

1. The grievors, in substance, contest their classification as Financial Officers and claim the benefit of the revised salary ranges applicable to employees falling under the new Tax Auditor series and class standards. It was counsel's submission that I lack jurisdiction to hear such a complaint, and to provide a remedy in respect of same, given the prohibitions contained in sections 51 and 52 of the Crown Employees Collective Bargaining Act, 1993. These sections, inter alia, prohibit the Grievance Settlement Board from ordering the creation of a new classification or the alteration of an existing classification. From the perspective of the Employer, the grievors request this form of relief;

2. The language of the Letter of Understanding is clear in the sense that it is directed towards Tax Auditors and not Investigators. Counsel for the Employer submitted that, in effect, the Union is asking for an amendment to the collective agreement and that I lack jurisdiction to award such a remedy. It was suggested that the Union should pursue its concerns through either collective bargaining or resort to the Joint System Subcommittee; and

3. As the language of the Letter of Understanding is clear and unambiguous, extrinsic evidence should not be received or relied on in aid of interpretation.

The Employer cited the following authorities in support of its position: OPSEU (Aitken et al.) and The Crown in Right of Ontario (Ministry of Health), GSB No. 678/87 (Gorsky); OPSEU (Rosamond) and The Crown in Right of Ontario (Ministry of Citizenship, Culture and Recreation), GSB No. 2086/96 (Leighton); OPSEU (Lyons) and The Crown in Right of Ontario (Ministry of Health), GSB No. 2289/93 (Petryshen); International Nickel Co. of Canada Ltd. and United Steelworkers (1974), 5 L.A.C. (2d) 381 (Weatherill); OPSEU (Craig, Grimes) and The Crown in Right of Ontario (Ministry of Transportation), GSB No. 2662/91, 2711/91 (Dissanayake).

Submissions were presented by counsel for both parties with respect to the preliminary issues. Following the submissions and after discussion between counsel and this Vice-Chair, it was agreed that the case would proceed as follows: (i) the issue to be addressed would be restricted to whether the grievors were intended to be included within, or captured by, the Letter of Understanding; (ii) extrinsic evidence would be received relating to what occurred at the bargaining table, the parties' intentions thereat, what they had in their minds at the time, and the context of the negotiations; (iii) the decision on the ultimate admissibility and effect of such evidence would be reserved; and (iv) the parties would avoid taking a "classification approach" to the presentation of their respective cases, that is, they would not focus on a comparison of job duties. With respect to point (iv), the parties were informed that, in my judgment, I lack the jurisdiction to proceed with a classification case or to award a classification remedy. I appreciate the efforts of counsel for their attempts to comply with this agreement over the course of the six (6) days of hearings.

A dispute relating to the disclosure of documents was addressed on the second and third day of hearings. The documents in issue were itemized as follows in a letter dated May 24, 2000 from Mr. E. Holmes, counsel for the Union, to Ms. M. Nixon, counsel for the Employer:

"1. All documents prepared with regard to the new Tax Auditor series of classifications. (We understand that Marilyn Masson coordinated the research.)

2. All documents prepared by or for Marion Crane, in response to our representations. We understand that an initial report was prepared, and a revised report including fact finding into Charter of Rights decisions such as Jarvis.

3. Documentation to Marion Crane requesting that her initial report be revised.

4. Any and all correspondence concerning:

• the Tax Auditor classification

• the classification of the investigators

between employees and or appointees in:

• the Ministry of Finance

• Management Board

• the Ministry of Finance and Management Board

including Roy Lawrie, Dario Savio, Marion Crane and Marilyn Mason.

5. Any and all records concerning the reclassification of the auditors in the Financial Officer classification series to the Tax Auditor classification series, and the exclusion of the Financial Officers in the Special Investigations Branch from the reclassification, including records of Human Resources Branch and the Tax Revenue Division.

6. Any and all records concerning your letter dated January 17, 2000 which denied the investigators' grievance at Stage 2."

(Exhibit #3, Tab #1)

By way of clarification, it appears that the material prepared by Ms. Marion Crane, as referenced in paragraph #2 of the request, was prepared as a fact finding report for the benefit of Mr. E.C. Farragher, the Employer's Stage 2 designee. I was informed that the initial report was destroyed and that the only document in existence was the final report. Similarly, the documents referenced in paragraph #6, relate to information which may have contributed to the denial of the grievance at Stage 2. Lastly, I note that one of the items requested under paragraph #4 was a draft MB20 which was originally prepared for submission to Cabinet in support of a wage increase for Tax Auditors. I was left with the impression that the document was never formalized and presented to Cabinet as the Employer opted to address the issue through collective bargaining.

The Employer opposed the request for disclosure. Generally, it was asserted that much of the material requested was irrelevant to the central issues of the case. This assertion was premised on two (2) grounds; firstly, many of the documents related to classifications, and, secondly, they were generated after the set of negotiations material to this dispute. Counsel for the Employer argued, therefore, that the documents would not assist in the resolution of the issue identified and agreed to by the parties on the first day of hearing. Counsel further submitted that the documents requested in paragraphs #2 and #6 were privileged as they were prepared for purposes of Stage 2 of the grievance procedure. In the alternative, it was submitted that such documents were protected from disclosure by litigation privilege. Finally, a claim to Crown privilege was advanced in respect of the draft MB20 document.

The Employer relied on the following authorities in support of its position: Re International Association Of Fire Fighters, Local 626, Borough Of Scarborough (1972), 1972 CanLII 1981 (ON LA), 24 L.A.C. 78 (Shime); Re Liffey Custom Coatings Inc. and London and District Service Workers' Union, Local 220 (1996), 1996 CanLII 20252 (ON LA), 59 L.A.C. (4th) 7 (Williamson); Re Brewers Retail Inc. and United Brewers Warehousing Workers Provincial Board, U.F.C.W., Local 326w (1998), 1998 CanLII 19066 (ON LA), 71 L.A.C. (4th) 28 (Aggarwal); Re Ontario (Management Board of Cabinet) (1998) O.L.R.D. No. 1598 (Surdykowski).

In response, counsel for the Union argued that he was entitled to full disclosure under articles 22.14.4 and 22.14.5 of the collective agreement which read:

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

Generally, it was the position of the Union that the documents requested were arguably relevant and should, accordingly, be disclosed. Counsel acknowledged that an order for disclosure did not mean the documents would automatically be admitted when formally tendered as evidence. It was the further position of the Union that the Employer had failed to support non-disclosure on any of the privileges claimed. With respect to the issue of litigation privilege, he asserted that the documents were not prepared for the "dominant purpose" of litigation. On his analysis, litigation was not contemplated at the time the documents were produced. With respect to Crown privilege, counsel noted that the claim had not been made by the Minister, as required. He suggested that such claim was merely premised on the general assertions of opposing counsel. It was argued the Employer failed to demonstrate that the public interest it asserted in support of non-disclosure outweighed the interest of having a fully informed decision. Counsel for the Union asked that I inspect the MB20 before ruling on the claim to Crown privilege.

The Union relied on the following authorities in support of its position: OPSEU (Hyland) and The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 1062/89 (Ratushny); Re Laurentian Hospital and Ontario Nurses' Association (1997), 1997 CanLII 25110 (ON LA), 67 L.A.C. (4th) 289 (Pineau); OPSEU (Kumor) and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), GSB No. 1698/96 (Finley); Re Government of The Province of British Columbia and British Columbia Government Employees' Union (1979), 1979 CanLII 3945 (BC LA), 22 L.A.C. (2d) 382 (Levey); Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Knight) (1994), 1994 CanLII 18662 (ON GSB), 39 L.A.C. (4th) 205 (Kirkwood); Waugh v. British Railways Board, (1979) 2 All E.R. 1169 (H.L.); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1993), 1993 CanLII 16716 (ON LA), 33 L.A.C. (4th) 174 (Springate); Re Columbia Bitulithic Ltd. and Construction and General Workers' Union, Local 602 (1996), 1996 CanLII 20389 (BC LA), 58 L.A.C. (4th) 9 (Taylor).

Following the submissions, this Vice-Chairperson made the following ruling:

"I have considered all of the submissions presented last day and today with respect to what documents should be disclosed to the Union. I have also considered the instructions that I gave on June 1, 2000 relating to the approach I intend to take to this case. More specifically, the issue before me is whether the grievors were intended to be included in, or captured by, the Letter of Understanding agreed to in March, 1999. The issue is not whether they are improperly classified as Financial Officers. Clearly, at this time, I lack the jurisdiction to award a classification remedy.

My ruling on the production request is as follows:

1. I order production of the documents requested in paragraph numbers 1, 4 and 5 of Mr. Holmes' letter of May 24, 2000 subject to the following conditions:

(i) the Draft MB20 document, unless the Employer agrees to disclose it directly to the Union, is to be first provided to this Vice-Chair-person for my review. I will then decide whether it should be released. I elect to take this intermediate step as I remain somewhat uncertain as to the nature and content of such a document and whether it is something that merits exclusion on the ground of Crown Privilege;

(ii) the material disclosed is to be used for purposes of this case only and is otherwise to be treated as confidential by the Union, its counsel, advisors and witnesses;

(iii) this ruling will not preclude further argument as to whether the material disclosed should be admitted into evidence. To be clear, the fact such material is now ordered disclosed is no guarantee that it will be received in evidence at some later point in this proceeding.

Generally, I have been persuaded that the documents referenced in paragraph numbers 1, 4 and 5, which I have ordered be disclosed, are arguably relevant to the issue as framed. I have not been persuaded, subject to the reservation on the Draft MB20, that the privileges advanced by the Employer support the non-disclosure sought.

2. I decline to order production of the documents prepared by Ms. Crane relating to the Stage 2 meeting. Ultimately, I have not been satisfied as to the arguable relevance of such documents. I note in this regard, that the grievors did receive a somewhat detailed Stage 2 reply from Mr. E.C. Farragher, Director, Human Resources Branch on January 17, 2000 (Exhibit #7)."

After the receipt of additional submissions, it was further ordered that the cut-off date for purposes of disclosure was January 17, 2000.

I note at this juncture that it was unnecessary to make an order with respect to paragraph #3, as there was no such document in existence. The MB20 document was never subsequently presented for my inspection. I was left with the impression that it was given directly to the Union.

Mr. Steve Nield and Mr. Peter Coates presented evidence on behalf of the Union. Mr. Nield is a Regional Health and Safety Officer with the Ministry of Labour. He served as Vice-Chair for the Administrative Category Bargaining Team during the last round of bargaining, and was, in this capacity, directly involved in the negotiation of the Letter of Understanding material to this case. Mr. Nield was one (1) of the group of individuals who signed the document on behalf of the Union. Mr. Coates is an Investigator in the Special Investigations Branch. He commenced employment with the Employer in 1982 and has been classified as a Financial Officer 5 (F.O.5) since 1994. Mr. Coates is one (1) of the group of grievors in this proceeding.

Mr. E.C. Farragher, Ms. Helen Ecker, Ms. Stephanie Crawford, Ms. Marilyn Mason and Mr. Rocco Stangarone gave evidence as witnesses for the Employer. Mr. Farragher is the Director, Human Resources Branch of the Ministry of Finance. He has occupied the position for more than twenty (20) years. He is responsible for the overall human resources function including staffing, compensation, training and development, classification, human resources planning and quality services. Mr. Farragher participated at the central table during the last round of negotiations. Ms. Ecker is a Labour Relations Consultant in the Human Resources Branch. She has been in the position for one (1) year. Ms. Ecker was previously a Human Resources Consultant in the same Branch for nine (9) years. Ms. Crawford is the Manager of Staff Relations for the Ministry of the Solicitor General and Correctional Services. She previously worked in Corporate Staff Relations at the Management Board Secretariat. Ms. Crawford was the Employer's lead spokesperson at the Administrative Bargaining Unit table during the last round of bargaining with the Union. Ms. Mason is the Director of the Collections-Compliance Branch in the Tax Revenue Division. She previously worked as Director of the Tax Integrity Program of which more is said below. Mr. Stangarone has been the Senior Manager, Investigations since 1988. In this position, he manages a group of Investigators who investigate suspected tax evasion under the Gasoline Tax Act, the Fuel Tax Act and the Tobacco Tax Act. Prior to 1988, Mr. Stangarone worked as a Group Leader and as an Investigator.

Until the decision in OPSEU (Alton et al.), GSB No. 1580/86, 1594/86 (Dissanayake), Investigators in the Special Investigations Branch were classified at the Financial Officer 4 level. The decision dated July 4, 1990 ordered that they be reclassified to the Financial Officer 5 level as such classification represented "the clear best fit" in respect of the duties and responsibilities of the Investigator position. The decision describes the work of the Investigator as follows:

"When the evidence is reviewed, it is clear that "full scale investigation of suspected fraud" is exactly what the grievors do, in a large number of their assignments. These investigations require two skills: (1) Financial and accounting (2) Investigation. Mr. Cyril Pothier, Manager of Operations at the relevant time, testified that the grievors' positions are unique because they do accounting functions as well as "police work". He testified that the grievors' work breaks down "fifty/fifty" between accounting work and investigation work. ---------------------------------------------------------------------------------------------------------------------------------------

The evidence indicates that prior to the Special Investigations Branch taking over these investigations, various police forces conducted them. While the police officers performed the investigative aspects or the police work, a firm of forensic accountants was retained to carry out the financial and accounting aspects of the investigation. The grievors perform both aspects. This evidence highlights the importance of the grievors, "police work" such as interrogating witnesses, preparing and executing search warrants and summonses, instructing the crown prosecutor and testifying as crown witness. As already noted, Mr. Pothier's own opinion was that the grievors' investigative skill and expertise are as important as their skill and expertise in the accounting and financial fields. In our considered view, the F0-4 class standard does not recognize the significance of the grievors' investigative functions, but focuses predominantly on the finance and accounting aspects. On the other hand, the F0-5 class standard captures the dual role of the grievors."

(Exhibit #2, Tab #12,

pages 12-14)

The "dual role" of the Investigators, as referenced in the above excerpt from Alton et al., is captured in the current Position Specification and Class Allocation form. The purpose of the position is described therein as:

"To conduct detailed investigations and in-depth audits involving possible fraud concerning the evasion of taxes or obtainment of grants or subsidies under all statutes administered by the Tax Revenue Division. To participate in the prosecution of cases against violators identified by these investigations and audits."

(Exhibit #2, Tab #4)

Until the mid-1980's, there existed a three (3) level Tax Auditor classification series. At or around that time, an initiative was taken by the Employer to shift all but a small number of positions in this series to the Financial Officer classification series. All of the positions so moved were classified as atypical within the Financial Officer series. I was advised that this change occurred because the Employer wished to improve the compensation paid to Tax Auditors, in order to promote recruitment and recognize increased complexity in the work, but was unable to achieve the objective within the confines of the Tax Auditor series. One (1) of the positions affected by this development was the Senior Corporations Tax Auditor Field. The Position Specification and Class Allocation form for this position, which was classified as Financial Officer 5 (Atypical), describes the purpose of the position as follows:

"As a senior auditor is responsible for carrying out a group of audits assigned to him/her by his/her supervisor in order to ascertain compliance with the Corporations Tax Act, the Income Tax Act (Canada) and Mining Tax Act. Document areas of non-compliance for reassessment. Depending on the size and/or complexity of the audit, (s)he may be assisted by a team(s) of auditors working on the same file, and/or a group of auditors working independently on different audits; under the guidance of his/her superior(s) allocate work to team and guide their actions. Provide assistance re the technical aspects and/or performance of the unit."

(Exhibit #2, Tab #5)

Bargaining for the current collective agreement commenced in early 1998 and continued for approximately one (1) year. The Employer presented its proposal in respect of the classification adjustments here in issue during the afternoon of March 17, 1999. The parties at that juncture were facing a strike deadline. The proposal, as presented, was identical in form and content to the Letter of Understanding ultimately incorporated into the collective agreement. Mr. Nield recalled that the Employer was disinclined to discuss any modifications to the proposal. In his words, it was presented as a "take it or leave it" offer. The proposal was accepted in the early morning of March 18, 1999.

Mr. Nield testified that the Union was presented with a strip list at the outset of bargaining. The list, generated from Corpay data, shows the number of employees actively working in classifications within the Administrative Bargaining Category. More specifically, it identifies the number of persons employed in the Financial Officer and Tax Auditor classifications. The strip list was filed as part of Exhibit #3, Tab #8.

Mr. Nield stated that when the classification adjustments were tabled, the Union representatives resorted to the strip list to determine how many employees would be affected. It was his evidence that the review of the strip list indicated a total of nine hundred and ninety-eight (998) employees would be impacted. This figure was comprised of nine hundred and ninety-four (994) employees working in levels one (1) to five (5) of the Financial Officer series and four (4) employees working in level three (3) of the Tax Auditor series. Mr. Nield asserted that the strip list was the sole means available for the Union to assess or verify the number of employees who would benefit from the adjustments proposed. He was unable to say whether the Employer representatives at the table were similarly working from a strip list.

Mr. Nield testified that during the discussion surrounding the classification adjustment, the Union conveyed its understanding to the Employer that nine hundred and ninety-eight (998) employees would be affected. It was the thrust of his evidence that the Employer did not dispute this understanding. In cross-examination, Mr. Nield was asked if the Union ever specifically inquired as to whether the figure of nine hundred and ninety-eight (998) was an accurate assessment of the impact of the classification adjustment in respect of Tax Auditors. Mr. Nield replied that he could not say with certainty. He maintained, however, that such number was on the table and that there was no dispute forthcoming from the Employer. Mr. Nield denied the suggestion that the Employer's representatives at the table limited the proposal to Financial Officers who performed tax audits as part of their job. He asserted that if such a statement had been made, the Union would have asked for a more specific figure in terms of the number of affected employees.

Mr. Nield acknowledged that there was no specific discussion during the negotiations about the Investigators or the functions of other employees classified as Financial Officers. He seemed to suggest that the Union focused more on classifications than positions, as its primary source of information was the strip list. Mr. Nield did not know at the time that there were positions with the titles of Investigator and Tax Auditor. He stated that he was aware that some employees within the Financial Officer series performed tax audit functions. Mr. Nield further stated that there was no discussion about excluding anyone from the new series. He asserted, on at least two (2) occasions, that the exchange between the parties focused on the entire classification. It is clear that there were no Financial Officers on the Union's negotiating team. Additionally, the team did not contact any Financial Officers to discuss the Employer's proposal before it was agreed to.

In summary, it was the Union's understanding that all of the employees within the Financial Officer classification series would be included in the new Tax Auditor series. This belief, as noted, was premised on the Union's reading of the strip list and on the Employer's failure to dispute the Union's tally of affected employees. The Union's understanding of the bargain was communicated to its members on March 18, 1999 when it outlined the details of a tentative settlement in a publication titled "Table Talk", the material part of which stated:

"About 1,000 Financial Officers and the four Tax Auditors in the Ministry of Finance will receive $3.375 million through the creation of a new Tax Auditor series."

(Exhibit #3, Tab #9)

Mr. Coates, unlike Mr. Nield, did not participate in the negotiation of the Letter of Understanding. He, nevertheless, maintained that the Investigators should also have been moved from the Financial Officer 5 to the Tax Auditor 5 classification pursuant to the terms of the aforementioned Letter. It was the substance of his evidence that Investigators are tax auditors as they perform audits as part of their job. Mr. Coates further asserted that the Employer, and indeed taxpayers generally, consider the Investigators to be tax auditors.

Mr. Coates stressed that following the movement of Tax Auditors into the Financial Officer series in the mid-1980's and the decision in Alton et al., the Investigators were at the same level as the Senior Tax Auditors in the Corporate Tax Branch and the Retail Sales Tax Branch. All of these positions were then classified and paid at the Financial Officer 5 level. (I note at this juncture that Tax Auditor positions were designated as atypical within the Financial Officer series). Mr. Coates described what occurred here as a demotion. On his analysis, the position of Investigator is of equal value to the jobs held by the Senior Auditors. In Mr. Coates' words, "they are tax auditors, we are tax auditors". Accordingly, he advanced the position that the Investigators should have been similarly moved into the new Tax Auditor series following the Letter of Understanding thus entitling them to the substantially increased salary provided for therein. Put another way, in Mr. Coates' judgment, there was no sound reason for discontinuing approximately fourteen (14) years of equal treatment of the two (2) groups of employees.

Mr. Coates noted that the purpose of the Investigator position, as described in the Position Specification and Class Allocation form, specifically contemplates the conduct of "in-depth audits". In this regard, he compared the type of audits performed by Tax Auditors to those completed by the Investigators. From his perspective, employees now in the new Tax Auditor series are "generalists" who compare taxpayer remittances to a given standard provided for in the tax statutes. In contrast, Mr. Coates described the Investigators as "specialists" who must perform "forensic audits". More specifically, employees in the latter position are required to determine, through the exercise of audit and investigatory techniques, whether reasonable and probable grounds exist to believe that offences have been committed under tax legislation so as to support the commencement of a prosecution. Mr. Coates described this process as a "tax audit". Prosecution Reports prepared by Mr. Coates were submitted in Reply as Exhibits #17 and #18.

The regulatory or audit powers of both Tax Auditors and Investigators are set out in sections 31(1) and (2) of the Retail Sales Tax Act. Under section 31(1), persons duly authorized by the Minister may enter business premises and proceed to audit or examine books, records or other relevant documents or to examine property for purposes related to the administration or enforcement of the Act. Section 31(2) authorizes the Minister to demand the production of information or business records from any person or business for the same purposes. Sample Requirement for Information forms were filed in this proceeding as Exhibits #19 and #20. Mr. Coates testified that the above powers can only be used by an Investigator to the point at which he/she determines reasonable and probable grounds exist to believe an offence has been committed. Once that point is reached, the Investigator must caution the taxpayer as to the effect of any statements made and must also resort to a search warrant to obtain relevant information or documents. If an Investigator fails to comply with such requirements, any evidence obtained will likely be deemed inadmissible by the Court adjudicating the charge. In this regard, reference was made by Mr. Coates to the cases of R.v. Jarvis, a 1997 decision of the Alberta Provincial Court, and Re Colarusso (not provided or cited), which impose the requirements mentioned above. I consider that two (2) conclusions can be drawn from Mr. Coates' evidence on this point. Firstly, Investigators, similar to Tax Auditors, have the audit or regulatory powers provided for under the Retail Sales Tax Act. Secondly, the Investigator is only entitled to use such powers to the point of reasonable and probable cause. This requires the Investigator to make an informed determination as to when that threshold is reached. The Tax Auditor does not have to address this issue nor confront the legal consequences of failing to make such a determination.

Mr. Coates advised that certain positions which do not require the performance of audits were moved to the new Tax Auditor series following the Letter of Understanding. He mentioned the position of Standards Officer, Audit Control. Prior to the negotiations, this position was classified as Financial Officer 4 (Atypical). The Position Specification and Class Allocation form describes the purpose of this position as follows:

"Under the direction of the Senior Standards Officer, assists in the setting of audit standards; measures adherence to the standards and provides guidance in the meeting of the standards by: Conducting quality control reviews of all functions within the Audit Section of the Retail Sales Tax Branch; Establishing audit standards and methodologies;.................."

(Exhibit #6)

This position was assigned to the Tax Auditor 4 level in the new class series. The purpose of the position is described as follows in the Position Description Report:

"To develop, recommend, maintain, and update retail sales tax audit standards, to provide guidance to audit staff through training and support and to prepare, maintain and update technical/administrative handbooks to reflect audit standards, policies and procedures. To participate as a member of the Audit Handbook committee, the Technology Committee, the Training Committee, the Audit Consistency Committee, and the Refund Committee which set/establish standards."

(Exhibit #3, Tab #5)

It was the gist of Mr. Coates' evidence that if the above position was considered as one of "the positions of Tax Auditors" for purposes of the Letter of Understanding, so should the position of Investigator, especially given the fact that incumbents in the latter job are required to perform audits.

Mr. Coates testified that he was issued an Identification Card when he commenced employment with the Special Investigations Branch. He stated that his card was identical to one (1) issued to Mr. Phil Roberts, one (1) of the other grievors, which was filed as Exhibit #4 in this proceeding. That card states on its face:

"The above employee is an officer of the Ministry of Finance authorized to perform audits and inspections pertaining to the Statutes referred to in Section 4 of the Ministry of Revenue Act......................"

This type of card is used by the Investigator to identify themselves to the taxpayer. Mr. Coates highlighted the words "perform audits" on the card. He advised that his card, which expired on December 31, 1999, was handed in to support staff. Mr. Coates indicated that the replacement card, which he subsequently received, identified him as an Investigator in the Special Investigations Branch. This change to the descriptive text on the card occurred after the negotiation of the Letter of Understanding.

Mr. Coates referenced an Employer generated document entitled "Tax Division Position, Accreditation Requirements for Tax Auditors" (Exhibit #3, Tab #2). He believed that this document, which he received in August or September, 1998, was prepared by Human Resources as part of the bargaining unit overhaul process. Mr. Coates thought it material that Financial Officers 5 in the Special Investigations Branch were included on this list relating to Tax Auditors. When asked about the significance of the document, he replied: "They have included us in the accreditation requirements for tax auditors indicating to me they consider us to be tax auditors". Mr. Coates was not prepared to concede that the inclusion of Investigators in the chart may have been an oversight.

Mr. Coates also testified that he and other Investigators were invited to a Tax Auditors Conference in 1984. Documentation relating to this event was filed as Exhibit #3, Tab #7.

Lastly, in his evidence, Mr. Coates asserted that the Employer had experienced difficulty prior to January, 1999 in attracting qualified applicants for Investigator positions. He stated that such a development would not have occurred prior to 1995, as the Special Investigations Branch was then one (1) of the higher paying units in the field. In cross-examination, Mr. Coates was confronted with data from competitions for Investigator positions over the period from 1997 to 2000, inclusive. The data seemed to suggest that the Employer has been relatively successful in filling such positions. Mr. Coates responded to the data by stating, "We have lowered our standards". He suggested that the skill of new hires is lower in the areas of fraud awareness and auditing and stated that they require more training than was previously the case.

Mr. Farragher noted that there was a significant increase in the "hidden economy" in the late 1990's. This was also a period in which the Provincial Government experienced large deficits. Mr. Farragher advised that at the time there were an insufficient number of Tax Auditors available to address the loss of revenue from the hidden economy. Apparently, this situation was the subject of some comment by the Provincial Auditor. As a consequence of all of the above, a submission was made to Management Board of Cabinet for funds to increase the complement of Tax Auditors so as to promote greater tax compliance. This expenditure was ultimately approved and was announced in the Budget in the Spring of 1998. The initiative was titled the Tax Integrity Program (TIP2).

Mr. Farragher advised that recruitment under TIP2 commenced in the summer of 1998. He stated that the Ministry of Finance was looking to hire approximately four hundred (400) employees, about three hundred and seventy (370) of whom were to be auditors. The balance of the new hires were to be Collectors, Special Investigators and some "compliance types". In cross-examination, Mr. Farragher clarified that the compliance personnel he was referring to were clerical staff who monitor tax remittances and whose work may lead to random or planned audits by the Tax Auditors.

Mr. Farragher advised that the initial recruitment initiative was only fifty percent (50%) successful and that the Employer experienced significant difficulty in attracting auditors, particularly at the senior level. He attributed this problem to the fact that Revenue Canada, a major competitor in the labour market, was about to hire between six hundred (600) and one thousand (1,000) auditors at a rate of pay greater than could then be offered by the Employer. In view of this situation, Mr. Farragher wrote to Ms. Pat Werner, Director of the Compensation Branch of Management Board Secretariat, by letter of August 21, 1998 (Exhibit #8, Tab #7). Mr. Farragher documented the reasons why the Ministry of Finance was having difficulty competing with Revenue Canada for auditors. The last paragraph of his letter reads, in part:

"My purpose in writing is to request a meeting with you to begin discussions on how we can find creative ways to respond to and counteract the Revenue Canada initiatives so that the Ontario Government's tax revenue generation strategy is not derailed..........."

Mr. Farragher asserted that this letter was written in respect of Tax Auditor compensation. He stressed that the letter had nothing to do with Investigators.

Mr. Farragher wrote a second time to Ms. Werner by letter of October 30, 1998 (Exhibit #8, Tab #8). He spoke in the letter of the campaign to hire three hundred and sixty-four (364) auditors in addition to the "normal annual attrition recruitment of approximately 80 to 100 auditors". He also reiterated his concern about the Employer's ability to compete with Revenue Canada for auditors. Mr. Farragher attached a chart titled "Comparison of Tax Auditor Salary Scales" to his letter. The chart compared the salary paid to auditors in the Financial Officer, Financial Administration and Tax Auditor 3 classifications to comparable positions at Revenue Canada. The chart showed a variance of eleven and two-tenths percent (11.2%) at the Financial Officer 5 level in favour of employees working for Revenue Canada. I note, in passing, that the variances set out in the chart are essentially the same percentage increases provided for by the Letter of Understanding. As was the case with the earlier letter, Mr. Farragher testified that his second effort applied to Tax Auditors and not to Investigators.

Mr. Farragher subsequently met with Ms. Werner and others on this issue. He observed that by then the matter was complicated by the bargaining unit overhaul. There was talk at the meeting of implementing a new Tax Auditor series and of a "special allowance payment option". Mr. Farragher stated that the problem was ultimately solved at the bargaining table when the plan for a bargaining unit overhaul was dropped. As a consequence, the Employer elected to table its proposal around Tax Auditors at the Administrative Category negotiations.

Mr. Farragher testified that the Employer by this time had already costed the proposal on the understanding it would affect approximately one thousand (1,000) Tax Auditors, including those to be hired. The costing, which utilized the Revenue Canada rates, had been part of the original package submitted to Management Board of Cabinet in the Spring of 1998. Mr. Farragher agreed that if all of the Financial Officer positions shown on the strip list were added together, the total would be just under one thousand (1,000). He had no personal knowledge of the Union having expressed its view that nine hundred and ninety-eight (998) Financial Officers would be affected by the proposal.

As mentioned earlier, Mr. Farragher was not at the bargaining table when the Employer presented its proposal on the classification adjustments here in issue. Given his prior involvement with the recruitment initiative, he was, however, well aware that such proposal was to be offered. Mr. Farragher testified that he did not have any discussions with the Administrative Category Bargaining Team, including Ms. Crawford, in advance of the proposal to advise them what Tax Auditor positions were intended to be captured. He acknowledged that Team members did report back to the Central Table. Mr. Farragher did not recall Ms. Crawford coming to him during the course of negotiations to advise that the Union had asked about the number of Financial Officers who would be impacted by the proposal.

Mr. Farragher stated that the proposal, which ultimately became the Letter of Understanding, was intended to address the situation affecting the Tax Auditors in the Ministry of Finance. He asserted in chief that the proposal did not apply to the Investigators and that he never understood Investigators to be Tax Auditors. In cross-examination, Mr. Farragher agreed that Investigators perform audits. It was his judgment, however, that they do not perform tax audits. Mr. Farragher advised that the phrase "positions of Tax Auditors" was intended to encompass "groups of employees involved in tax assessing and auditing for purposes of tax correctness or tax liability". He was prepared to acknowledge that Investigators audit for purposes of determining tax liability. He added that such responsibility "isn't their sole function in the Ministry".

During his cross-examination, Mr. Farragher's attention was directed to a document titled "Positions Included In Tax Auditor Class Series" (Exhibit #10). The positions listed are as follows: Jr. Returns Auditor, Desk Auditor, Returns Auditor, Field Auditor-Employer Accounts, I and C Field Auditor, Field Auditor, Sr. Auditor Desk, Field Auditor Trainee, Field Auditor Complex Employer Accounts, Sr. Field Auditor, Tax Auditor Field, Standards Officer-Audit Analysis and Control, and Sr. Auditor Field. With the exception of Sr. Auditor Desk, all of these positions were classified as atypical in the Financial Officer series prior to being moved to the new Tax Auditor Class Series. Mr. Farragher agreed that only one (1) of the positions, this being Tax Auditor Field, is specifically titled Tax Auditor. He then stated that "a title is a title" and "what is critical is the function of the position, why it is performed and why we created them" Mr. Farragher added that, "we knew what we meant by Tax Auditor when we made our submission". It was the thrust of his evidence that the Employer did not intend to capture Investigators in its proposal.

Lastly, Mr. Farragher stated that he has recently been made aware that there is a shortage of Investigators. He advised that he was not aware of such a shortage at the time the new series was established.

As previously mentioned, Mr. Coates referenced a document titled "Tax Division Position, Accreditation Requirements for Tax Auditors" (Exhibit #3, Tab #2) in support of his assertion that the Employer considers the Investigators as Tax Auditors. Ms. Ecker, in her evidence, addressed the development and purpose of the document. Her evidence on this issue may be summarized as follows:

(i) In 1995, the Tax Revenue Division undertook a review of the accounting accreditation requirements within the Division. One (1) of the findings emanating from the review was that the accounting accreditation for positions in the Ministry of Finance might operate as a systemic barrier to employment. The original version of the chart was prepared so as to introduce the concept of academic equivalents to the accounting accreditation requirements applicable in the Division. This initial chart was filed in this proceeding as Exhibit #8, Tab #1. While Ms. Ecker was not involved in the development of this chart, she seemed to be well-informed as to its content;

The original chart which was titled "Tax Division Position, Proposed Accreditation Requirements for Tax Auditors" included the Financial Officer 5, Investigator position. In her examination in-chief, Ms. Ecker stated that to her knowledge, the Investigators are not Tax Auditors. In cross-examination, she agreed that they perform audits on books and records but noted that they do not raise assessments after the audit. Ms. Ecker further stressed that the Investigators have other responsibilities. Ms. Ecker referenced a number of other positions in the Division classified at the AM-19, AM-20 and SMG-1 levels which were similarly listed on the chart even though they were not Tax Auditor positions. Ms. Ecker testified that the focus of the discussion at the time this chart was prepared was on what combination of courses could be considered as the equivalent of the accounting designation;

(ii) Ms. Ecker referred to a list of issues given to her by the Senior Audit Manager who chaired the group looking at academic equivalents in preparation for a meeting to be held in November, 1997 with the Assistant Deputy Minister of the Tax Revenue Division. The list, filed as Exhibit #8, Tab #2, reads in part:

"Should the accreditation requirements apply to AUDIT positions only or to AUDIT and NON-AUDIT positions e.g. positions in TAB and SIB, and NON-Audit SMG's?"

(iii) Ms. Ecker's handwritten notes taken at the meeting of November 24, 1997 (Exhibit #8, Tab #3) suggests that those in attendance considered the Investigators in the Special Investigations Branch to be in non-audit positions. It further appeared to be the consensus that there should be an academic equivalent to the accreditation requirement for Investigators. An E-Mail was subsequently forwarded to the Human Resources Branch by the Assistant Deputy Minister of the Tax Revenue Division asking that the issue be proceeded with on that basis (Exhibit #8, Tab #4);

(iv) The chart referenced by Mr. Coates was produced by the Human Resources Branch in 1998. Ms. Ecker sat in on the meetings at which the content of the chart was discussed and took direction on the production of same;

(v) The current version of the chart dated August 17, 1999 was filed as Exhibit #8, Tab #5. Ms. Ecker noted that the Special Investigation Group is no longer referenced on the chart. Ms. Ecker testified that she was asked to delete them from the list because they are not Tax Auditors. She stated, in effect, that she agreed with that assessment. Ms. Ecker advised that the Investigators were on the 1998 chart because it was determined that Financial Officer 5 positions in the Special Investigations Branch ought to require accounting credentials or an academic equivalent. She agreed that this current chart was prepared after the implementation of the new Tax Auditor series.

Ms. Ecker, in her evidence, also referred to the Preamble to the Financial Officer 1-3 Class Standards (Exhibit #8, Tab #6). She did so to demonstrate that there are numerous positions in the classification, which are not Tax Auditor positions. The positions of Financial Analyst, Budget Officer, Rate Analyst, Senior Rate Analyst, Land Transfer Tax Analyst, Centralized Financial Analyst, and Senior Financial Analyst were cited as relevant examples.

Lastly, Ms. Ecker expressed the opinion that the Letter of Understanding was to apply to Tax Auditors and not to Investigators. She repeated her understanding that Investigators are not Tax Auditors.

As stated earlier, Ms. Crawford was the Employer's lead spokesperson at the Administrative Bargaining Unit table. It was her evidence that when the proposal was presented, the Union was informed that approximately one thousand (1,000) Tax Auditors would benefit from the classification adjustment. Ms. Crawford testified that the Union questioned that number as its representatives were under the impression there were only four (4) Tax Auditors. Ms. Crawford stated that the negotiations were then adjourned for a short time to enable the Employer team to seek clarification so as to enable it to better provide an explanation for the large discrepancy in the numbers. Ms. Crawford subsequently "connected up" with Ms. Gail Fisher, Manager of Union-Management Relations, Management Board Secretariat, and Ms. Angela Sullivan, who worked in the Classification Unit, for this purpose.

Ms. Crawford testified that she and Ms. Sullivan discussed how the new grids would apply. Part of their discussion focused on the fact that not everyone in the Financial Officer category would move into the new Tax Auditor series, as there were employees in the former category who were not Tax Auditors. Ms. Crawford determined that those employees would not move to the new Tax Auditor range. Ms. Crawford stated that there were no specific discussions about precisely which positions would move. She did, however, obtain confirmation that there were approximately one thousand (1,000) Tax Auditors who would be affected. She learned that this included a large number of Tax Auditors who were classified as Financial Officers and four (4) employees who were actually classified as Tax Auditors.

Ms. Crawford subsequently conveyed the substance of the above discussion to Mr. Nield and Ms. Moya Beall, another member of the Union's bargaining team. Ms. Crawford testified she told them that there were four (4) Tax Auditors in the wage schedule. She further advised Mr. Nield and Ms. Beall that there were also a number of Tax Auditors classified as Financial Officers who would be affected by the proposal. It was Ms. Crawford's evidence that she was asked by the Union's representatives if the Employer was going to delete the Financial Officer classification from the collective agreement. Ms. Crawford stated that she informed them that was not the Employer's intent as there were other staff in the Financial Officer series who were not Tax Auditors. At the time she made this statement, Ms. Crawford did not have any independent knowledge that the Ministry of Finance employed Investigators.

Ms. Crawford testified that the strip list was never referenced during the course of the negotiations. She did not recall Mr. Nield looking at such a list when at the table. She further asserted that neither Mr. Nield nor Ms. Beall referred to the strip list when addressing the impact of the proposal. Ms. Crawford could also not recall Mr. Nield expressing the Union's understanding that nine hundred and ninety-eight (998) Financial Officers would be affected by the proposal.

In her evidence in-chief, Ms. Crawford stated that "our proposal afforded a class adjustment only to those who were Tax Auditors". In cross-examination, she agreed that it was positions of Tax Auditors which would benefit from the adjustment and not merely employees classified as Tax Auditors. Ms. Crawford commented as follows on this point:

"I knew there would be a whole number of people who were Financial Officers who were not Tax Auditors and I knew there were some Financial Officers who were Tax Auditors and that those who were Tax Auditors were receiving the adjustment".

In response to a question from Union counsel, Ms. Crawford indicated she assumed that the employees to be moved performed tax audits. She noted that the Investigators who were to receive an adjustment are specifically mentioned on page 190 of the collective agreement under the heading "ADM Inspectors/Investigators".

Ms. Crawford's evidence conflicted with that of Mr. Farragher on one (1) point. Ms. Crawford testified that she did have a conversation with Mr. Farragher during the course of the negotiations. She stated that this conversation focused on the Employer's retention problem arising from the Federal Government providing a better compensation package to Tax Auditors.

Ms. Mason advised that there were two (2) phases to the Tax Integrity Program, these being Phase One in 1996 and Phase Two in 1998. Both phases were part of a comprehensive program to address the underground economy and promote tax compliance. Ms. Mason worked on Phase Two of the Program which was introduced in the Spring 1998 Budget. At the time, Ms. Mason was the Acting Director. In this capacity, she was responsible for coordinating the hiring under the Program. It was her evidence that a total of five hundred and sixty-two (562) employees were to be hired. She broke down this total as follows: four hundred and forty-four (444) Auditors, fifty (50) Collection Staff, thirty (30) Compliance Staff, and thirty-eight (38) positions in management and support functions. Ms. Mason stated that the Program contemplated a seventy percent (70%) increase in the number of Tax Auditors.

Ms. Mason asserted that the hiring initiative did not include any new Investigator positions. In this regard, she was confronted with Mr. Farragher's statement that Investigators were to be part of the hiring under the Tax Integrity Program. Ms. Mason, in substance, did not agree. She was then shown a document titled "Tax Integrity Program (TIP2) Update" dated November 18, 1998 (Exhibit #15). On its face, the document indicated that thirty-nine (39) "Investigations and Compliance" staff were to be hired. Ms. Mason explained that the reference to Investigations was a typographical error and that the number of thirty-nine (39) was to apply to "Identification and Compliance" staff. She asserted that this mistake was corrected in a later report. Ms. Mason reiterated that the sub-group of thirty-nine (39) hires did not include any Investigator positions. I note that Mr. Farragher stated in cross-examination that there are two (2) groups of employees in the Ministry of Finance who are called Identification and Compliance Field Officers. One group is classified at the Tax Auditor 2 level and the other is in the OAG series.

Ms. Mason stated that the first phase of hiring under TIP2 commenced in July, 1998. The Employer then posted competitions for three hundred (300) Tax Auditor positions. Ms. Mason indicated that most of the positions were for Field Tax Auditors. She advised that such auditors attend at the taxpayer's place of business, conduct an audit of their books and records, and then raise the assessment, if deemed appropriate. Ms. Mason testified that this initial round of recruitment led to the hire of one hundred and sixty-one (161) auditors. She noted that this raised a "high level of concern" as the Employer could not meet the TIP2 commitment to raise an additional seven hundred million dollars ($700,000,000.00) with only that number of new hires. Ms. Mason and others involved in the Program were worried that the competition with Revenue Canada in the labour market would make it difficult for this Employer to recruit, and indeed retain, staff.

The Employer's failure to meet its hiring target motivated Mr. Farragher to write the two (2) letters to Ms. Werner referenced earlier in this award. It also led to a meeting in December, 1998, after which a decision was taken to prepare a business case. The purpose of the business case was as follows: to identify problems in recruitment; to explore options; to calculate the cost of making Tax Auditor salaries comparable to those paid by Revenue Canada; and to isolate the implications if the Employer was unable to hire all of the necessary Tax Auditors. It was asserted by Ms. Mason that the Investigators were never mentioned or considered during the development of the business case. Rather, the focus at all times was on Tax Auditors.

Ms. Mason testified that she was asked by Management Board to provide a list of all Tax Auditor positions that would be impacted by any change in salary and to break the total number down by classification. After receiving information from the Finance and Administration Unit, Ms. Mason prepared a chart titled "Tax Revenue Division, Approved Auditing Staff Profile as at March 31, 1999" (Exhibit #8, Tab #9). The chart illustrates the Auditor positions across the various Branches and the two (2) Regional Offices by number and classification. The total number of all such positions is shown as one thousand and seventeen (1,017). Ms. Mason asserted that this total figure included the new positions the Employer hoped to fill through the TIP2. I take from her evidence that the chart was prepared in either December, 1998 or January, 1999 as she believed the data shown thereon was given to Management Board at some point during the latter month as part of the business case. The reference to March 31, 1999 on the document was not to show the date on which it was prepared but, rather, to show desired complement on a fiscal year basis. Ms. Mason stated that no Investigator positions were shown on the chart, as she did not consider Investigators to be in Tax Auditor positions. Ms. Mason did not know if the information on the chart, including the total number of Tax Auditor positions, was used in the course of the negotiations.

Mr. Stangarone stated that the Identification Card referenced previously was changed because it did not properly identify the Investigators. As mentioned, Exhibit #4 states that Mr. Roberts, an Investigator, was "authorized to perform audits and inspections". In summary, Mr. Stangarone asserted it was crucial, following the Court decisions in Colarusso and Jarvis, for Investigators to properly identify themselves to suspects, taxpayers and vendors. Failure to do so had the potential to render any evidence obtained inadmissible. Mr. Stangarone advised that the process of changing the cards started in the two (2) year period prior to December 31, 1999. He indicated that it took a long time to finalize the process as the change involved a lot of discussions. Mr. Stangarone testified that the change had nothing to do with the reclassification of employees under the collective agreement.

Mr. Stangarone briefly described the flow of work as between Tax Auditor and Investigator. My understanding of his evidence is that the Tax Auditors in the various Product Branches make referrals to the Special Investigations Branch in situations where, following an audit, they suspect the taxpayer may have contravened tax legislation. The Investigators then proceed to commence an investigation and, if merited, make recommendations for the commencement of prosecution. Additionally, they assist with the prosecution through the completion of a Prosecution Report and as witnesses. Mr. Stangarone, in cross-examination, agreed that Investigators perform a complex audit in every file they take. He further acknowledged that such audit is done to a higher standard than ones completed by Field Auditors. Indeed, Mr. Stangarone expressed the opinion that of the two (2) positions, the one of Investigator is more complex as such employee is involved in the prosecution of an individual audited initially by a Tax Auditor. Mr. Stangarone claimed, however, that he has never considered Investigators to be Tax Auditors.

During the course of his evidence, Mr. Stangarone suggested that Investigators could no longer use the regulatory powers under section 31 of the Retail Sales Tax Act when approaching a taxpayer during an investigation. Secondly, he expressed the opinion that it would be unusual for a Tax Auditor's file to be placed before the Court as evidence. Mr. Coates disputed both of these points in reply. It was the substance of his evidence that an Investigator remains entitled to use the regulatory powers up to the point of reasonable and probable cause and that audit files are used in court to support the prosecution, as needed.

It was the position of the Union that extrinsic evidence should be received to assist with the interpretation of the Letter of Understanding. This position was premised on the submission that the phrase "positions of Tax Auditors", contained in the first paragraph of that part of the Letter headed "Tax Auditors", reflects a latent ambiguity. Counsel for the Union referenced Exhibits #9, #10 and #11 which all list positions in the Tax Auditor series. He emphasized that none of the positions are specifically described as "Tax Auditor". Counsel noted that the closest description is the position of Tax Auditor Field listed on Exhibit #10. He submitted that as such position is not the only position included in the Letter of Understanding, there must have been an intention to ascribe a broader meaning to the words "Tax Auditor". In substance, it was the Union's argument that resort should be had to extrinsic evidence to clarify the ambiguity and give meaning to the bargain reached by the parties.

Counsel for the Union submitted that the evidence presented supports a conclusion that Investigators are in positions of Tax Auditors within the Ministry of Finance. He relied on the following evidence, inter alia, in support of this position:

(i) Mr. Farragher's statement that the purpose of the Letter of Understanding was to capture people holding positions which assess and audit in order to determine tax liability and his acknowledgement that Investigators engage in this function. Counsel noted that Mr. Farragher, in contrast to Ms. Mason, stated that Investigators were included in TIP2;

(ii) The Position Specification and Class Allocation form for the position of Investigator includes under "Purpose of Position" the conduct of "in-depth audits". Specific mention was made of the fact that both Mr. Coates and Mr. Stangarone stated Investigators perform audits. Mr. Stangarone testified that such audits are done to "a higher standard" than those performed by Tax Auditors. Counsel asserted that there was no evidence to establish a distinction between auditing and tax auditing. He further noted that, in any event, positions such as Compliance Officers and Standards Officers were included in the new Tax Auditor series even though they do not perform audits;

(iii) The evidence of Mr. Coates of the Investigator's ability to use

regulatory powers up to the point of reasonable and probable cause. Counsel argued that this right confirms that Investigators are in a Tax Auditor position in the sense there is an "audit side" to their work. He suggested that the conflict of views between Mr. Coates and Mr. Stangarone on the subject simply reflects a debate as to the extent such powers can be used;

(iv) The evidence of Mr. Coates relating to the Identification Card, the Accreditation document, and the invitation to the 1984 Tax Auditor Conference. From the perspective of counsel, this evidence suggests that the Employer itself considers Investigators to be Tax Auditors. In this regard, I was urged to be cautious with respect to evidence of events and discussions following March, 1999 tendered in relation to the identification and accreditation issues. In counsel's submission, such evidence is "self- serving".

Counsel for the Union also referred to the "Inspector/Investigators" portion of the Letter of Understanding as found at page 190 of the collective agreement. He noted that the Investigators in the Special Investigations Branch are not included therein and that all other Investigators received the benefit of a salary adjustment. Counsel argued that this omission confirms the parties’ intent to include this group of Investigators in the new ranges for Tax Auditors set out at page 189 of the collective agreement. I was asked to conclude that if the parties wished to exclude these Investigators from the benefit of same, they would have used clear language to that effect.

Ultimately, it was the position of the Union that the evidence supports a declaration that the Investigators are in "positions of Tax Auditors" and are, therefore, entitled to inclusion within the Letter of Understanding. I was further asked to declare that the Employer breached the collective agreement by failing to adhere to the bargain contained within the Letter. By way of monetary remedy, it was submitted by counsel for the Union that damages are easily ascertainable, as they would be measured by the new wage rates paid to other positions of Tax Auditors in the Ministry of Finance, which benefited from the Letter of Understanding. Counsel submitted that the grievors would be entitled to such damages "until the Employer takes action in respect of the true intent of the Letter of Understanding".

Counsel emphasized that he was not asking for an order that the grievors be reclassified. In his submission, the creation of a new classification or the alteration of an existing one is not a precondition to an award of the damages claimed. He argued that the matter of determining the intention of the parties as to who is in a Tax Auditor position is a legitimate issue for this Board's decision. Counsel asserted that the fact interpretation of the Letter of Understanding may touch on classification matters does not transform this case into a classical classification case of the type precluded by sections 51 and 52 of the Crown Employees Collective Bargaining Act.

The Union relied on the following awards: Re Inn of the Woods and United Food and Commercial Workers, Local 175 (1989), 1989 CanLII 9256 (ON LA), 7 L.A.C. (4th) 31 (Aggarwal); OPSEU (Union Grievance) and the Crown in Right of Ontario (Ministry of Revenue), GSB No. 802/91, 225/92 (Watters); OPSEU (Theoret) and the Crown in Right of Ontario (Ministry of Finance), GSB No. 1674/93 (Roberts); OPSEU (Barker et al.) and the Crown in Right of Ontario (Ministry of The Attorney General), GSB No. 2476/92 (Kaplan).

It was the position of the Employer that I lack jurisdiction to award the monetary remedy claimed by the Union. Counsel for the Employer noted that the damages claimed are the equivalent of the extra compensation the grievors would have received had they been moved to the new Tax Auditor series. He submitted that if the grievors were awarded damages on this basis, it would be tantamount to putting them into the new series which would thereby change or alter their classification. Counsel argued that sections 51 and 52 of the Crown Employees Collective Bargaining Act clearly deprive this Board of the jurisdiction to make such an award. He asserted that this result would still obtain even if I were to find that the parties intended to capture the Investigators in the Letter Of Understanding. In the words of counsel, the Union was attempting to create "a tortured remedy" or "a backdoor route" to avoid the clear statutory prohibition to my jurisdiction.

It was the further position of the Employer that the wording of the Letter Of Understanding is clear and unambiguous. Counsel submitted that a plain reading of the document discloses that it was intended to apply to Tax Auditors and not to Investigators. He emphasized that the Letter does not speak to, or mention, Investigators. In his submission, it was intended to address Tax Auditors who were formerly classified atypically in the Financial Officer series. Counsel argued that given the clear language found in the Letter Of Understanding, it is irrelevant that Investigators have historically been compensated at a level similar to Tax Auditors or that their job in some respects may be more complicated. For all of these reasons, I was asked to not resort to the extrinsic evidence in aid of interpretation.

Assuming the existence of an ambiguity and the consequent consideration of the extrinsic evidence, Counsel for the Employer next addressed what he viewed to be the two (2) primary arguments of the Union which he described as:

1. The parties specifically negotiated to convert approximately one thousand (1,000) Financial Officers and four (4) Tax Auditors to the new Tax Auditor series and that these numbers, in and of itself, dictate that the grievors were contemplated to fall within the Letter Of Understanding; and

2. The Investigators are Tax Auditors and, as such, the parties negotiated to place them as Tax Auditors into the new series.

Counsel stated that the evidence relating to the above arguments should not be considered or relied on unless I found the language of the Letter Of Understanding to be ambiguous in a patent or latent sense.

With respect to the first of the Union's arguments, counsel for the Employer made the following submissions:

(i) The evidence adduced through Mr. Farragher makes it clear that the Ministry of Finance was attempting to increase its complement of Tax Auditors. The recruitment and retention problems documented in his letters to Ms. Werner address Tax Auditors and not Investigators. Counsel noted that, ultimately, the Employer decided to deal with the recruitment problem through collective bargaining given the relative lack of success in hiring under TIP2. He questioned why the Employer would include the Investigators in this resolution of the recruiting impasse, if they were not part of the identified problem at first instance. It was the gist of counsel's argument that, in the circumstances, it made greater sense to conclude that this exercise in collective bargaining concerned Tax Auditors and not Investigators. In this regard, I was asked to accept the evidence of Mr. Farragher vis-à-vis the background and context leading to the negotiation of the Letter Of Understanding;

(ii) Counsel referenced the chart prepared by Ms. Mason which

showed a total desired complement of one thousand and seventeen (1,017) Tax Auditors. He submitted that this was

the number of Tax Auditors who would be affected by the Letter of Understanding. He referenced Ms. Mason's evidence that she did not include any Investigator positions in the count. I was asked to conclude that the total figure of

one thousand and seventeen (1,017) formed the basis for Ms. Crawford's statement at the bargaining table that approximately one thousand (1,000) employees would be impacted by the Employer's proposal; and,

(iii) Counsel referenced Ms. Crawford's evidence to the effect that the proposal was to apply to one thousand (1,000) Tax Auditors. He suggested that the Union, on being told by Ms. Crawford that the Financial Officer series was not to be deleted, should have known the proposal applied only to those Financial Officers who were Tax Auditors. Counsel noted that if all the Financial Officers were to move to the new series, as per the Union's understanding, the Financial Officer series would essentially be vacated. In this respect, I was asked to find that Ms. Crawford's evidence made more "logical sense" than that presented by Mr. Nield. Counsel noted that the evidence of Ms. Crawford and Mr. Nield was consistent on one (1) material point; that is, that there was no specific mention or discussion at the table about including Investigators in the Letter Of Understanding.

Counsel presented the following submissions on the second of the

Union's arguments:

(i) Reference was made to the evidence of Mr. Farragher, Ms. Ecker, Ms. Mason and Mr. Stangarone. Each of these witnesses testified that they never considered Investigators to be Tax Auditors. Counsel for the Employer acknowledged that, at times, the Investigators perform audits and tax audits. He asserted, however, that it is clear from the evidence they are not Tax Auditors. Counsel noted that the Alton decision recognized that Investigators require two (2) core skills when they engage in the full scale investigation of suspected fraud; these being financial and accounting skills and investigation skills. He submitted that their "dual role" is reflected in the Position Specification and Class Allocation form under "Purpose of Position". It was his submission that Investigators have significant responsibilities "far outside of the Tax Auditor function";

(ii) Counsel suggested that the jurisprudence, such as Jarvis and Colarusso, distinguish between the role of Tax Auditor and that of Investigator. He stated that the corresponding rights of the taxpayer are dependent upon which role is being performed. Counsel submitted that these different roles or functions are reflected in the respective position specifications;

(iii) The evidence of Ms. Ecker demonstrates that the "Accreditation Requirements for Tax Auditors" document (Exhibit #3, Tab 2) was not intended to establish that Investigators occupy positions of Tax Auditors. Rather, the document was created as part of a process to assess whether there should be an academic equivalent for an accreditation requirement. Counsel noted that Ms. Ecker, who played a role in the creation of the document, does not consider Investigators to be Tax Auditors;

(iv) The evidence of Mr. Stangarone with respect to the Identification card, the change made thereto, and the exercise of regulatory powers illustrates that there is a material distinction between audit and investigation functions;

(v) The evidence of Mr. Coates in respect of the invitation to a 1984 Tax Auditors' Conference should be given little, if any, weight given the long period of time between that event and the negotiations central to this dispute; and

(vi) Counsel advised that a number of Inspector positions were not addressed in the "Inspectors/Investigators" section of the Letter Of Understanding at page 190 of the collective agreement. He submitted that, given the fact it is not a comprehensive list, the Union could not validly argue that the omission of the Investigators from same meant that they must be included in the Tax Auditor section of the Letter.

In summary, it was submitted that the extrinsic evidence supports the position taken by the Employer in this case. Alternatively, counsel suggested that it is of no assistance in respect of how the Letter Of Understanding should be interpreted and applied and, as a consequence, the language as written should be construed on an objective basis. It was the submission of counsel that, in either case, the only proper conclusion is that Investigators are not Tax Auditors. In his view, "positions of Tax Auditors" was meant to capture employees in positions in which the primary purpose is the completion of tax audits. He asserted that such a responsibility is not at the core of what these grievors do. Rather, "their investigative and prosecutorial functions make them what they are".

Counsel for the Employer relied on the decision in Craig, Grimes, previously cited, in support of his submissions.

In reply, counsel for the Union emphasized that several positions were moved into the new class series even though they do not involve the performance of audits. In contrast, he alluded to the fact that Investigators perform audits to a high standard. It was his submission, therefore, that they satisfy the core function test advanced by the Employer. Finally, counsel focused on the fact that counsel for the Employer did not list any Investigators missing from the list on page 190 of the collective agreement.

The Board in Craig, Grimes set out the following test for the receipt of extrinsic evidence in aid of interpretation:

"Now we turn to consider whether the Board should rely on extrinsic evidence relating to negotiating history leading up to this settlement. Such evidence may only be used by the Board as an aid to interpreting the language of the settlement, if the Board finds the language used to be patently or latently ambiguous. Patent ambiguity is where the language used is on its face ambiguous. This would be the case where particular words or phrases used have different possible meanings. We have no difficulty concluding that the disputed language in the settlement

document is not ambiguous on its face................………………...

Latent ambiguity is where the language, though clear on its face, creates ambiguity in application and in practice. However, one must be very careful in determining whether a latent ambiguity exists. Often the language used by the parties may be capable of different interpretations and constructions. The notion of latent ambiguity, however, does not include generally "all cases of doubtful meaning or application". (Leitch Gold Mines Ltd. v. Texas Gulf Sulphar Co. Inc., (1969) 1968 CanLII 405 (ON HCJ), 1 O.R. 469 at p. 524). As arbitrator Weatherill stated in Re Int'l Nickel Co. of Canada, (1974) 5. L.A.C. (2d) 331 at p. 334, the notion of latent ambiguity "should not be, and was not intended to be taken so far as to open the door to the admission of extrinsic evidence whenever a disagreement as to the construction of a document arises. If that were allowed, the strength of a document such as a collective agreement would be greatly reduced, and the well-established rules respecting the admission of extrinsic evidence would be meaningless". The mere fact that the application of the plain meaning of the language used leads to unfair or illogical results also should not automatically lead to the admission of extrinsic evidence. The process of collective bargaining is such that not infrequently, under the severe pressure to reach a settlement and end protracted negotiations, parties may agree to language despite the irrationality or unfairness. Sometimes a party may be willing to live with such a result because as a trade off it had gained concessions from the other party in an area it considers to be more important. Therefore lack of rationality or fairness does not necessarily lead to a conclusion that the document is latently ambiguous. In our view, for there to be a finding of latent ambiguity in terms of ambiguity in application, the party alleging ambiguity must not only establish that the language leads the irrational or inconsistent results, but that such irrationality and inconsistency was such that it is reasonable to conclude that the parties could not possibly have intended such results."

(pages 7-9)

Applying this test to the language in issue in this case, I find that the first sentence of the Tax Auditor section of the Letter Of Understanding is latently ambiguous. More specifically, it is unclear from the phrase "positions of Tax Auditors in the Ministry of Finance" who the parties wanted to capture within the new class series. As noted earlier, there is only one (1) position that is actually described as a Tax Auditor, this being Tax Auditor Field. It is undisputed that the parties intended to include more than just this one (1) position in the Letter Of Understanding. Put another way, through their bargain they wanted the Letter to have a broader application. I have been persuaded that, in the circumstances of this case, extrinsic evidence can be received given the existence of an ambiguity in application. In my judgment, such evidence is admissible to assist with the interpretation of the Letter Of Understanding and to give meaning to the bargain reached by the parties.

In view of the agreement reached on the opening day of this case, I think that the extrinsic evidence should be assessed on the following basis: firstly, what does it disclose as to the parties intent and state of mind when at the bargaining table and, secondly, does it establish a context for the negotiations that might provide some assistance in determining the intended effect of the Letter Of Understanding.

Mr. Nield and Ms. Crawford were the only witnesses presented by the parties who were actually at the negotiating table. It is apparent from their evidence that no specific agreement was reached at the table vis-à-vis the Investigators. The Investigators were not discussed as a separate group as neither Mr. Nield nor Ms. Crawford had any knowledge about such position at the time they were involved in the negotiation of the Letter Of Understanding.

Mr. Nield and Ms. Crawford left negotiations with different understandings as to which positions would be included in the new Tax Auditor series. Mr. Nield believed that all positions in the Financial Officer series would be moved to the new Tax Auditor series. This belief was premised on the Union's reading of the strip list and on the Employer's alleged failure to dispute the Union's tally of nine hundred and ninety-eight (998) affected employees. Ms. Crawford, initially advised the Union that approximately one thousand (1,000) Tax Auditors would be impacted. When this figure was questioned, Ms. Crawford sought clarification from Ms. Sullivan. She then informed the Union that the employees who would be affected were Tax Auditors classified as Financial Officers and four (4) employees who were already classified as Tax Auditors. Ms. Crawford also advised the Union representatives that the Financial Officer classification would not be deleted, as there were other staff within that series who were not Tax Auditors. Ms. Crawford asserted that her statement of the number of affected employees was not based on the strip list. It was her evidence that the strip list was not used by the Employer team and that the Union representatives never referenced such a list during the course of the negotiations.

Ms. Crawford's evidence is consistent with that presented by Mr. Farragher and Ms. Mason. Mr. Farragher testified that the Employer costed its proposal prior to bargaining on the understanding it would affect approximately one thousand (1,000) Tax Auditors. Ms. Mason, in advance of the negotiations, prepared the chart showing that one thousand and seventeen (1,017) Tax Auditor positions would be impacted by the change in salary. Both witnesses stated that Investigators were not included in the total, as they were not considered to be in Tax Auditor positions.

In summary, Mr. Nield claimed Investigators were to be included in the new class series as it was his understanding from the strip list, and the Employer's failure to contest the Union's estimate of affected employees, that all positions in the Financial Officer classifications would be moved to the new Tax Auditor series. Ms. Crawford, in contrast, asserted that only those Financial Officers who were Tax Auditors would be captured by the Letter Of Understanding. I conclude, from a review of all of the evidence, that the parties did not have a common understanding as to the meaning of the phrase "positions of Tax Auditors in the Ministry of Finance" when they agreed to the proposal on March 18, 1999. While the parties had similar views as to the number of employees who would be affected, they differed as to the composition of such group. Given Ms. Crawford's comments to the Union, I think it should have been apparent that the Employer did not accept the Union's assessment of the positions to be affected.

The context evidence presented by the parties related to the following issues: (i) the background and purpose of the proposal; and (ii) whether the Investigators are Tax Auditors and are perceived as such by the Employer.

Evidence relating to the background and purpose of the proposal was presented by Mr. Farragher, Ms. Mason and, to a lesser extent, by Ms. Ecker. Mr. Farragher described the reason for TIP2 and outlined what the Program entailed, particularly in terms of hiring. It was his evidence that almost all of the hires' were to be Tax Auditors. More specifically, he stated that three hundred and seventy (370) of the four hundred (400) new positions were to be Tax Auditor positions. It was the thrust of Mr. Farragher's evidence that TIP2 recruitment was primarily directed towards Tax Auditors and not Investigators. Mr. Farragher also described the problems experienced during the recruitment process. These problems were documented in his letters of August 21 and October 30, 1998 to Ms. Werner. Mr. Farragher testified that the letters had nothing to do with Investigators but related, rather, to Tax Auditor positions.

Ultimately, because of the relative lack of success in the recruitment phase, the Employer opted to look to the bargaining table for a resolution to the problem. This change in approach led to the development of the Employer's proposal. Mr. Farragher asserted that the proposal presented on March 17, 1999 was intended to encompass Tax Auditors and not Investigators. In his words, it was designed to capture "groups of employees involved in tax assessing and auditing for purposes of tax correctness or liability". While Mr. Farragher agreed that Investigators audit in order to determine tax liability, he was adamant that they were not contemplated by the proposal. Ms. Ecker similarly expressed the opinion that the Letter Of Understanding was to apply to Tax Auditors and not to Investigators.

Ms. Mason was the person responsible for coordinating the hiring under TIP2. She stated that out of the five hundred and sixty-two (562) employees to be hired, four hundred and forty-four (444) were to be auditors. Ms. Mason advised that, for the most part, the initial postings were for Field Tax Auditors. Ms. Mason also referenced the Employer's failure to meet its hiring targets. She maintained that throughout the period of her involvement, the focus at all times was on Tax Auditors.

The background evidence clearly discloses that the proposal was developed to confront a recruitment and retention problem relating to Tax Auditors and not Investigators. Given the nature of the problem and the unsuccessful attempt to address it through recruitment under TIP2, it makes more logical sense to conclude that the subsequent efforts at collective bargaining, which resulted in the Letter Of Understanding, were directed towards Tax Auditors and not Investigators.

There are two (2) conflicts in the evidence which merit mention at this juncture. Mr. Farragher testified that under TIP2, thirty (30) of the four hundred (400) hires were to be comprised of Collectors, Special Investigators, and "Compliance Types". In contrast, Ms. Mason said that the hiring did not include any Investigators. She asserted, in this regard, that the reference to thirty-nine (39) "Investigations and Compliance" staff shown on Exhibit #15 was a typographical error which should have read "Identification and Compliance". It was the substance of her evidence that this group of thirty-nine (39) employees did not include any Investigators. Given that Ms. Mason was the person responsible for coordinating the hiring, I accept that she would likely have a more precise understanding of the specific details surrounding same. I note from Mr. Farragher's evidence that there are in fact two (2) groups of employees in the Ministry of Finance who are called Identification and Compliance Field Officers. One group is classified at the Tax Auditor 2 level and the other is in the OAG series. Ultimately, I accept that there was to be no hiring of Investigators under TIP2. Even if there was to be such hiring, it is apparent from Mr. Farragher's evidence that the number of Investigator positions were minimal in comparison to the number of new Tax Auditor positions. It is abundantly clear from all of the evidence that TIP2 focused on Tax Auditors.

Mr. Farragher stated that he did not recall Ms. Crawford coming to him during the negotiations to advise that the Union had inquired about the number of Financial Officers

who would be impacted by the proposal. Ms. Crawford testified that she did have a conversation with Mr. Farragher during the course of the negotiations. It was her recollection that it centred on the Employer's retention problem resulting from Revenue Canada providing a better compensation package to its Tax Auditors. If these separate recollections amount to a conflict, it is one that I do not consider as material to the resolution of this dispute.

Mr. Coates testified, in effect, that Investigators are in positions of Tax Auditors. He referenced the Position Specification and Class Allocation form, under Purpose of Position, which states, inter alia, that Investigators engage in the conduct of "in-depth audits". He further noted that Investigators can use the audit powers under section 31 of the Retail Sales Tax Act up to the point of reasonable and probable grounds. Generally speaking, the Employer witnesses did not dispute the fact that Investigators perform audits. Mr. Farragher stated that they perform audits, but not tax audits. Ms. Ecker agreed that they perform audits on books and records but noted that they do not raise assessments after such audits. Mr. Stangarone testified that Investigators perform complex audits, which are done to a higher standard than the ones completed by Field Auditors. Notwithstanding these acknowledgements, each of the Employer witnesses claimed that they never considered Investigators to be Tax Auditors. On this point, Mr. Farragher indicated that the performance of audits is not the Investigator's "sole function in the Ministry". In a similar vein, Ms. Ecker stated that Investigators have "other responsibilities". I further note that Ms. Mason did not consider Investigators to be Tax Auditors. It was for this reason that she did not include them in her chart prepared as part of the business case.

I am left with the distinct impression that all of the Employer witnesses saw a material difference between the positions of Investigator and Tax Auditor and that this difference focuses on the investigative role inherent in the former position. This difference is reflected in the respective job specifications and is also recognized in recent jurisprudence, such as Jarvis and Colarusso. These cases appear to indicate that the two (2) positions have different responsibilities and obligations and that the rights of the taxpayer are determined to a large extent by what position they are interacting with. I consider it significant that the importance of the investigative component of the Investigator's work formed the basis for the result in Alton et al. The decision, in that instance, references the tasks of interrogating witnesses, preparing and executing search warrants and summonses, instructing the Crown Prosecutor and testifying as Crown witnesses. The award in Alton et al also notes that the position of Investigator requires more than financial and accounting skills. In the final analysis, and after a consideration of all of the evidence relating to this aspect of the case, I conclude that greater weight should be accorded to the evidence presented by the Employer to the effect that Investigators are not in positions of Tax Auditors.

Mr. Coates referenced the Accreditation document, the Identification Card and the invitation to the 1984 Tax Auditors Conference in support of an assertion that the Employer considers Investigators to be Tax Auditors. I reject this assertion on the following grounds:

(i) Ms. Ecker, in her evidence, addressed the development and purpose of the document entitled "Tax Division Position, Accreditation Requirements For Tax Auditors". It is my assessment such evidence demonstrates that the 1998 chart was not intended to show Investigators occupy Tax Auditor positions. Rather, it was created as part of a process which ultimately determined that an academic equivalent to an accreditation requirement should be established for the Investigator position. In this regard, I note: the initial version of the chart included a number of positions that are not Tax Auditor positions; exhibits were filed showing that, as of November, 1997, Special Investigations Branch positions were considered to be "non-audit positions"; and such consideration is consistent with the removal of Investigators from the current version of the chart;

(ii) Mr. Coates led evidence that prior to December 31, 1999, his Identification Card stated he was "authorized to perform audits and inspections" and that thereafter it was amended so as to identify him as an Investigator. I have not been persuaded that the wording on the card is determinative of the issue now before me. I am satisfied that the earlier wording was developed in the pre Jarvis and Colarusso era. It was only after these decisions that greater emphasis was placed on the need for proper identification so as to preserve the admissibility of any evidence obtained. Mr. Stangarone testified that the process of change commenced in the two (2) year period prior to December 31, 1999. I accept his evidence that the change had nothing to do with the grievors' claim to the classification adjustment here in issue;

(iii) Lastly, I am satisfied that little turns on the fact Investigators

were invited to attend a Tax Auditor Conference in 1984. That invitation was extended quite a few years ago. No evidence was presented as to similar invitations in recent years to support the existence of a consistent practice.

After reviewing the extrinsic evidence, I am unable to find that the Union has established a right, on the part of Investigators in the Special Investigations Branch, to be included within the terms of the Letter Of Understanding. Indeed, I find that such evidence is more supportive of the position taken by the Employer. I think it more likely that the Letter Of Understanding was intended to apply to positions formerly in the old Tax Auditor classification which were shifted to the Financial Officer series, and designated atypical, in the mid to late 1980's. This would explain why the Standards Officer position, classified as Financial Officer 4 Atypical, was moved to the new Tax Auditor series even though incumbents therein do not perform audits. The position appears to be a support position for the audit function as it sets standards for audits, measures adherence to standards, and provides guidance in the meeting of such standards. I have also considered the arguments of both parties as to the effect of the Inspector/Investigator portion of the Letter Of Understanding as found at page 190 of the collective agreement. Ultimately, I think it more likely than not that the parties would have included Investigators in this part of the Letter if they intended to provide them with a classification adjustment.

As stated above, it has not been established on a balance of probabilities that the Investigators "should have been included in the classification adjustment for the Administrative Category for the new Tax Auditor classifications standards", as claimed in the grievance. It follows that the grievors are not entitled to the remedy claimed. For this reason, it is unnecessary to address the classification argument presented by counsel for the Employer. However, without deciding the point, I make the following observations:

(i) By way of the Letter Of Understanding, the parties agreed that the Employer would develop a new Tax Auditor series and class standards for positions of Tax Auditors in the Ministry of Finance and would provide for a new salary range. This case is about whether the parties agreed to include Investigators, classified at the level of Financial Officer 5, in this bargain. I am inclined to the opinion that I have jurisdiction to commence an inquiry on this issue. Put another way, I think that I could properly determine if they were part of the deal;

(ii) The more problematic question is whether a monetary remedy, of the type sought by the Union, could be awarded if I found that the Investigators were entitled to inclusion in the Letter Of Understanding. Again, I am inclined to think that such a remedy could be awarded without infringing sections 51 and 52 of the Crown Employees Collective Bargaining Act. A decision in the Union's favour would not be tantamount to this Board creating a new classification or altering an existing one. The parties themselves did this by way of the Letter Of Understanding. Rather, such a decision would simply give effect to the intention of the parties as reflected in their Letter Of Understanding.

After the movement of Tax Auditors into the Financial Officer series and the release of the Alton et al decision, Investigators and Tax Auditors were both classified in the same series, albeit atypically in the case of the latter, and paid at the same rate. This equality of treatment continued for many years until the Letter Of Understanding was implemented. I also note the evidence of Mr. Stangarone to the effect that the Investigators may have a more complex job than Tax Auditors.

Given these factors, I can readily understand how these grievors may consider it unfair that they not be included in the classification adjustment. In view of the fact that Revenue Canada pays Investigators at a higher rate than does the Ministry of Finance, and the evidence as to a recent shortage of Investigators, the Employer may wish to address the issue of appropriate compensation so as to ensure it is able to retain and recruit competent Investigators. There is no doubt on the evidence that these employees have a key role in the identification and prosecution of tax offenders.

For all of the above reasons, the grievances are denied.

Dated at Toronto, this 2nd day of April, 2001.