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 of Ontario
HEARING December 11, 2001.
DECISION
On July 18, 2001, a hearing was convened by the Board to deal with a grievance filed by Mr. Michael Pallota, wherein he grieved that the employer had contravened article 6.15 of the collective agreement by refusing to pay him a shift premium for the hours he worked from 6:00 p.m. to 9:30 p.m. on August 7, 2000. During the hearing, the employer indicated its intention to adduce extrinsic evidence in support of its interpretation of the collective agreement. It was the employer’s position that the language in article 6.15 was patently ambiguous. In addition, the employer contended that it would lead evidence as to past practice which would disclose a latent ambiguity and/or create an estoppel against the union. The employer further argued that through evidence of negotiating history, it would establish that the union had made representations to its detriment as would constitute estoppel. The union’s position was essentially that no extrinsic evidence was properly admissible for any purpose because the provision of the collective agreement was unambiguous.
In a decision dated August 17, 2001, for reasons set out therein, the Board directed 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 Board was advised that the union agreed to extend the time for filing particulars to September 20, 2001. On that day the employer filed particulars pursuant to the Board’s direction. Based on those particulars, on December 11, 2001, the Board received submissions as to whether it ought to receive any extrinsic evidence.
Past practice
The issue is whether the facts, as set out in the employer’s particulars as to past practice, (assuming those facts to be capable of proof) forms a sufficient basis to establish a promissory estoppel against the union, and/or whether that evidence would disclose a latent ambiguity.
In order to establish an estoppel, one of the ingredients the employer must show is that the union made a representation to the effect that it either agreed with the employer’s practice with regard to shift premiums, or at least that it would not take a contrary position. Such a representation may be made explicitly, or implicitly through acquiescence. Having reviewed the particulars, I have concluded that if proved through evidence, they do not disclose such a representation by the union. The particulars, on the contrary, disclose that the union clearly took the position that the manner in which the employer was administering the shift premium provision was improper. For example, the employer’s particulars note that in December 1998 “the union wrote to its membership that they were entitled to the payment of shift premiums on overtime hours, including paid holiday hours.”
In order to establish a latent ambiguity, there must be evidence that the parties had a mutual understanding of the employer’s obligation, which was different to the obligation conveyed on the face of the document. In contrast, the particulars, if proven, would lead to the conclusion that the union and the employer continuously had opposing views as to the obligation under the relevant provision. The particulars do not disclose that at any point the union agreed that the employer’s practice was in compliance with the collective agreement.
The particulars filed, however, do indicate that while protesting that the employer’s practice and expressing a contrary view, the union did not grieve in that regard. Thus, employer counsel repeatedly argued that the union “failed to made a formal objection by filing a grievance”. The union’s failure to grieve earlier may have legal consequences on its entitlement to redress for past violations. However, when the evidence is that the union took the position that the employer’s practice was contrary to the collective agreement, and that it did not at any time change that position, it is not possible to conclude that it agreed with the employer’s practice or acquiesced with it. The particulars therefore do not have the potential for establishing an estoppel or disclosing a latent ambiguity.
For the foregoing reasons the Board will not allow any evidence as to past practice.
Negotiating History
On September 20, 2001, the employer filed particulars relating to its proposed evidence on negotiating history. Union Counsel agreed that I should receive that evidence.
However, an issue arose as a result of the employer filing additional particulars relating to negotiating history on December 7, 2001. The employer states that the proposed evidence relates to “the history behind the application of and changes to article 6.15(a) of the collective agreement”.
The union submitted that these additional particulars filed on December 7, 2001 should be disregarded and that the Board should not accept any evidence relating to those particulars. The union pointed out firstly that the particulars were filed just a few days prior to the hearing, well after the date set by the Board for filing of particulars (September 14, 2001) and the extended date (September 20, 2001).
The union further argued that the employer was now proposing to go back to 1991, whereas the particulars initially filed only went back to the 1998-2000 collective agreement. Union counsel expressed concern that the union would face the extremely difficult task of tracking down negotiating committee members from 1991 and locating their notes. For her part, employer counsel submitted that the proposed additional evidence should be allowed because it was not “new” evidence. Instead, the proposed evidence is intended to merely set the context for the evidence arising out of the particulars earlier filed. While filed late, counsel submitted that given the nature of the evidence proposed, the union would not be prejudiced.
In its decision dated August 17, 2001, the Board directed that the employer provide “detailed particulars relating to all of the facts it proposes to establish through extrinsic evidence relating to past practice and/or negotiating history ...” no later than September 14, 2001. Therefore, the particulars filed on December 7, 2001 are clearly late and the employer, as a matter of right, has no entitlement to pursue new evidence at this late stage. If the employer was proposing to lead evidence as to what happened at the negotiating table during collective bargaining at any time prior to those leading to the 1998-2000 collective agreement, the Board would disallow that. That would be (to use union counsel’s jargon) “to open a whole new can of worms” not raised in the initial particulars. To raise such issues at the time it did would significantly prejudice the union. However, I read the particulars much more narrowly, particularly in light of the employer’s statement that the additional particulars do not raise any new facts, but are only intended to set a context, that the evidence will simply outline the changes in the language in the collective agreements leading up to the bargaining for the 1998-2000 agreement. If this is the case, it should not cause the union any significant prejudice, and the proposed evidence would not be new evidence unrelated to the particulars filed on September 20, 2001. On that understanding, despite its failure to comply with the time limit set by the Board, the employer will be permitted to lead evidence merely to show the changes in language in collective agreements going back to 1991. To further assist the union, the employer is directed to provide to the union, in advance of the next hearing, copies of the relevant articles from past collective agreements which it intends to rely on.
This matter will continue on April 11, 2002 as scheduled.
Dated at Toronto, this 21st day of March, 2002.