GSB#1185/00
UNION#OLB396/00
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Pallotta)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Nimal V. Dissanayake Vice-Chair
FOR THE GRIEVOR Craig Flood
Counsel
Koskie Minsky
Barristers & Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Ontario Liquor Control Board
HEARING July 18, 2001.
DECISION
The grievor, Mr. Michael Pallotta employed by the employer as a full-time Customer Service Representative. In a grievance dated September 27, 2000, he has grieved that the employer contravened article 6.15 of the collective agreement by refusing to pay him a shift premium for the hours he worked between 6:00 p.m. to 9:30 p.m. on August 7 2000.
The union called the grievor and established the following facts, which are essentially undisputed. August 7, 2000 was the Civic Holiday, a paid holiday under the collective agreement. During the week in question, including August 7, the grievor worked a shift from 1:00 p.m. to 9:30 p.m. On August 7th, the Civic Holiday, the grievor voluntarily opted to, and did the 1:00 p.m. to 9:30 shift. For that shift, he received 8 hours pay at his regular rate for the paid holiday and two times his regular rate as per article 7.4 for working on the holiday, for a total of three times his regular rate. In addition, he received $10:00 as acting pay under article 6.12(a) because on that shift he filled in for the store manager. The union has no issue with the foregoing payments. However, the union claims that article 6.15(a) also entitled the grievor to receive a shift premium for "all hours worked between 6:00 p.m. and 7:00 a.m.”. Since he had worked between 6:00 p.m. and 9:30 p.m. on the day in question, the union claims on behalf of the grievor, the amount of $3.50 (plus interest) being the applicable shift premium for those hours, calculated at $1.00 per hour.
The employer’s primary position is that the reference in article 6.15(a) to “all hours” is ambiguous and must be read in the context of other provisions in the agreement. In the employer’s view “hours worked” on a paid holiday are not “normal hours”, as defined in article 6.2 (a). Therefore the shift premium provision had no application. While it paid the grievor a shift premium for the hours worked between 6:00 p.m. and 9:30 p.m. on the other days of the week in question, it was not prepared to pay a shift premium for the same hours worked on the paid holiday, because they were not “normal” hours.
After the grievor had testified, the employer indicated its intention to rely on extrinsic evidence in support of its interpretation of the collective agreement. Counsel submitted that the employer intended to establish that there is a patent and/or latent ambiguity in the collective agreement, and that I ought to hear its evidence as to past practice before determining whether or not such ambiguity existed, and that if it is found to exist, I should use that evidence as an aid to interpret the collective agreement. Additionally, the employer indicated that it would establish through evidence of negotiating history and/or past practice, that the union had made representations to its detriment as would constitute estoppel. Counsel urged me to receive that evidence before determining the grievance. She relied on the following LCBO cases, Re Costa, 2286/97 (Brown), Re Sheridan et al, 2299/93 etc (Briggs), Re Elford/Sabourin, 814/92, 815/92 (Kaplan), Re Dicker, 564/91 (Dissanayake) and Re Kruczaj, 1359/93 (Briggs) as examples where the Board had received extrinsic evidence. Reliance was also placed on Re Noranda Metal Industries Ltd., (1983) 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529 (Ont.C.A.) where it was held, inter alia, that an arbitrator was entitled to resort to extrinsic evidence to determine whether there was any latent ambiguity in a provision of the collective agreement or in its application to the particular facts.
Counsel for the union submitted that I should refuse to hear any extrinsic evidence and find that there is no ambiguity of any kind in the relevant provisions of the collective agreement. It was contended that the employer had failed to show how the proposed evidence will establish a patent or latent ambiguity. Counsel argued that despite section 48 (12)(f) of the Labour Relations Act, which allows the Board “to accept oral or written evidence as the ... Board, ... in its discretion considers proper, whether admissible in a court of law or not”, that does not permit the Board to act upon evidence which has no cogency at law, and further that difficulty in interpretation or arguability of different interpretations is not the same as ambiguity. See, Re Government of the Province of Alberta, (2000) 2000 CanLII 50253 (AB GAA), 90 L.A.C. (4th) 381 (Price) and the cases cited therein. Counsel emphasized that permitting the proposed extrinsic evidence, particularly that relating to negotiating history, will turn this proceeding into a multi-day hearing. While not disputing that the Board has the authority to receive extrinsic evidence and further that it is not uncommon for arbitrators to hear extrinsic evidence before deciding whether an ambiguity exists, counsel urged me to disallow that evidence in this case.
The parties framed the following issues for determination:
(1) Is there an ambiguity, patent or latent, as would justify the admission of evidence relating to past practice and negotiating history?
(2) Is evidence relating to negotiating history and past practice admissible for the purpose of establishing an estoppel against the union?
Shift premiums are governed by article 6:15(a) which reads:
6:15(a) An employee shall receive a shift premium of one dollar ($1.00) per hour for all hours worked between 6:00 p.m. and 7:00 a.m. Where more than fifty percent (50%) of the hours, inclusive of lunch and rest periods, fall within this period the premium shall be paid for all hours worked.
(b) Shift premium shall not be considered as part of an employee’s basic hourly rate.
Patent ambiguity is ambiguity on the face of the language of the document to be interpreted. Therefore, by its very nature, one can decide whether or not a patent ambiguity exists by examining the document itself. Article 6:15(a) cannot be any clearer. It states that “an employee shall receive a shift premium ... for all hours worked between 6:00 p.m. and 7:00 a.m.”. I find nothing in article 6:15(a) or any other provision of the agreement which in any way qualifies or restricts that clear statement. Therefore, I find that there is no patent ambiguity in the collective agreement.
However, the employer has also claimed that there is a latent ambiguity. A latent ambiguity is an ambiguity, not on the face of the document, but in its application to a particular set of facts. For example, “X contracts to sell “my dinky toy” to Y for $ 5,000.”. On the face of the contract there is no ambiguity. X is to sell his dinky toy. However, extrinsic evidence will show that X had no dinky toy and that he habitually referred to his 1980 VW Beetle as his “dinky toy”. Extrinsic evidence will disclose a latent ambiguity in what otherwise appears to be a clear provision. It is now well established that an arbitrator may admit extrinsic evidence to disclose as well as resolve a latent ambiguity in a collective agreement. See R. v. Barber, (1968) 1968 CanLII 446 (ON CA), 2 O.R. 245 (Ont. C.A.) And Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. (Incorporated), (1969) 1968 CanLII 405 (ON HCJ), 1 O.R. 469 (Ont. H.C.J.).
In contrast to a case of a patent ambiguity, it is often the case that it is the extrinsic evidence itself that creates or discloses a latent ambiguity. Besides, the employer has also raised an estoppel argument on the basis of representations allegedly made by the union through acquiescence in past practice or by conduct during negotiations. It is not possible to determine the estoppel issue without hearing the evidence that the employer claims created the estoppel. In a recent decision in Re Greater Niagara Transit Commission, award dated April 3, 2001 (Dissanayake) Unreported, at pp. 5-6, I made the following observation relating to latent ambiguity:
While there is no unanimity on the issue, the jurisprudence indicates that the majority of arbitrators receive extrinsic evidence before determining whether or not a latent ambiguity exists as would justify its admission. This is not surprising, because as the courts have held, one of the purposes for which extrinsic evidence may be tendered is to disclose a latent ambiguity. Thus, Brown and Beatty, Canadian Labour Arbitration, (supra) at p.3-72 summarizes as follows:
Many arbitrators have concluded that extrinsic evidence should be received and that the ruling as to admissibility should be reserved or that the evidence should be received and the board of arbitration reserve to itself the right to determine what, if any, of the extrinsic evidence would be used to assist in the interpretation of the sections in dispute. This is particularly true where the alleged ambiguity is latent, and extrinsic evidence is tendered to disclose as well as to resolve it. Other arbitrators, however, have refused to hear the extrinsic evidence until they have decided whether there is an ambiguity. A middle course pursued by another arbitrator involves hearing the evidence until it becomes clear that it is appropriate to rule on the question of ambiguity. (Emphasis added)
In the present case, it is the employer’s position that extrinsic evidence will disclose a latent ambiguity and/or establish an estoppel against the union. The union’s objection to receiving that evidence is primarily on the ground that it will result in a protracted multi-day hearing. The Board must be fair and sensitive to the concerns of both parties. On the one hand, the employer is offering extrinsic evidence, which it claims will have the result of establishing or creating a latent ambiguity and/or estoppel. It is not fair to determine whether the result existed, without first hearing the evidence which allegedly leads to that result. On the other hand, the union’s concerns are also valid. The Board ought not launch a potentially protracted hearing without satisfying itself first that there is good reason for doing so. The employer has not specified what extrinsic evidence it is proposing to lead and how that evidence creates or discloses a latent ambiguity or an estoppel. Merely because the employer "raises” a latent ambiguity and/or "an estoppel” that is not by itself justification for hearing potentially lengthy evidence. The Board must be satisfied that there is some cogent evidence, which if established, has the potential of establishing a latent ambiguity and/or an estoppel. With that objective, the Board directs as follows:
(a) The Board determines that there is no patent ambiguity in the collective agreement provision relating to shift premium. The Board will not therefore hear extrinsic evidence on that basis.
(b) The employer is directed to provide to the union detailed particulars relating to all of the facts it proposes to establish through extrinsic evidence, relating to past practice and/or negotiating history, to disclose a latent ambiguity and/or to establish an estoppel. These particulars are to be provided to the union no later than September 14, 2001. I shall hear submissions as to whether the particulars, assuming they are capable of proof through evidence, form a sufficient basis to create or disclose a latent ambiguity and/or an estoppel. On the basis of those submissions the Board will decide whether or not it will hear any extrinsic evidence.
The matter is referred to the Registrar for fixing of a hearing date subsequent to September 14, 2001.
Dated at Toronto, this 17th day of August, 2001.