GSB# 2002-0994, 2002-0995, 2002-1328, 2002-2529, 2002-2876, 2002-2973, 2002-2974, 2002-2988, 2002-3095, 2002-3241, 2002-3246, 2003-2728

UNION# 02A737, 02A738, 02F038, 2002-0202-0015, 2002-0202-0016, 2002-0202-0017, 2002-0202-0018, 2002-0230-0017, 2003/0340/0001, 2003-0202-0001, 2003-0202-0002, 2003-0202-0003, 2003-0202-0005, 2003-0230-0001, 2003-0340-0001, 2003-0599-0005, 2003-0599-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cherwonogrodzky et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

March 28, April 3 & 10, September 8 & 30, October 20 & 28, 2003.

TELEPHONE CONFERENCE

November 13, 2003.

WRITTEN SUBMISSIONS

November 13 & 24; December 1, 2003.

Decision

1More than 100 tax auditors employed by the Ministry of Finance grieve the employer’s refusal to reimburse them for the several hundred dollars in dues that they each pay annually to maintain membership in one of the three professional accountants’ organizations in Ontario — the Certified General Accountants Association of Ontario, the Institute of Chartered Accountants of Ontario and the Society of Management Accountants of Ontario. Although these are individual grievances to which the mediation/arbitration procedure under Article 22.16 would apply, with reference to Article 22.16.7 the parties have agreed that the decision in this matter will have “precedential value.”

2While the parties’ collective agreement does not expressly require reimbursement of these professional dues, the union’s position is that the employer’s failures to reimburse were nevertheless breaches of the collective agreement. It relies on a government-wide policy, applicable to all ministries, that “Payment of membership fees may be authorized when membership in an organization is beneficial to the ministry.” It says that by refusing to reimburse the grievors’ membership dues under the aforesaid policy, the employer has breached an implied obligation to exercise management rights in a manner that is reasonable and not arbitrary, discriminatory or in bad faith.

Professional Designations and Memberships

3Central to the issues in these proceedings is the link between membership in one of the professional accountants’ organizations and the professional designation conferred by that organization. Each of the professional accountants’ organizations offers courses in accountancy and will confer a professional designation — “Certified General Accountant” (“CGA”), “Chartered Accountant” (“CA”) or “Certified Management Accountant” (“CMA”) — on a member who attains prescribed levels of education and related experience in accountancy. When the initials “CA”, “CGA” or “CMA” appear beside an individual’s name, they signify that that individual has achieved a certain level of education in accountancy. In that way, the designation is like a university degree.

4In one very important respect, however, a professional designation is not like a university degree. As a matter of law, someone who has attained a designation may only describe themselves to others as a “CGA”, “CMA” or “CA” if he or she is currently a member of the organization that issued the designation. In addition to signifying attainment of a certain level of education, the use of the designation initials denotes current membership in the issuing organization. Membership obligations include adhering to prescribed standards of conduct and taking a certain amount of continuing education.

5The Ministry values the education that is acquired in attaining one of these professional designations. It requires that an applicant for a tax auditor position classified at the TA4 or TA5 level have either attained a professional designation or completed university courses that the Ministry regards as the academic equivalent of the coursework involved in a professional designation. The Ministry will reimburse tax auditors in lower classifications their costs of completing the training that leads to a professional designation, including the cost of the student membership that is a prerequisite to receiving the training from those organizations. The Ministry has its own requirements concerning continuing education and conduct. While it requires that applicants for certain tax auditor positions have attained a professional designation at some point in the past, current membership in the organization that issued the designation is not required, either at the time of promotion (or hiring) to the position or thereafter.

6The Ministry of Finance has not reimbursed and, as a matter of policy, does not reimburse any of its tax auditors (or any of their managers) the costs of ongoing membership in a professional accountancy organization, except when student membership is necessary in order for the employee to take educational courses that the employer requires or encourages the employee to take.

Issues

7In its particulars the union alleged, among other things, that

The Ministry benefits from employees possessing a professional designation [because] it removes a systemic barrier to advancement for those persons who require the designation to obtain a promotion and/or otherwise improve their employment situation within the Ministry;

possessing the designation is a requirement for obtaining and maintaining certain positions within the Ministry including the TA4 and TA5 positions for those persons who do not otherwise meet the qualifications;

current job descriptions state that a professional designation is required if the incumbent does not otherwise qualify by way of, for example, possession of a university degree;

the scoring for job competitions is weighted in favour of candidates who possess a designation;

The Ministry has recognized that professional designations were required for the work performed by employees in connection with the Tax Integrity Program - Phase Two;

In job competition # 001163 additional points were awarded to candidates who possessed a designation;

A phrase like “having a designation” or “possessing a designation” can be ambiguous. It may mean having attained the designation at some past time, or it may mean having both attained the designation and maintained the current membership that allows use of the designation initials. While its position at the outset may have been different, in the end the union did not contend that current membership was in fact a requirement of any of the grievors’ positions, or that points had been awarded in job competitions for having maintained membership following the attainment of a designation.

8The allegations on which the union relied in closing argument were essentially that the Ministry of Finance does in fact benefit from its tax auditors’ maintaining their professional memberships, and has behaved as though it thought membership was of benefit to it, and would further benefit from reimbursing all such dues. It submitted that this is sufficient, in the absence of explanation of its decision by the Ministry, to support a finding that the employer had acted unreasonably and in an arbitrary manner by denying reimbursement.

9The employer’s position is that because its policy is not part of the parties’ collective agreement, it is for the employer, and not this Board, to determine whether the memberships in question would be of benefit to it. It contends that its decision in that regard is not subject to review for reasonableness, as the decision does not adversely impact any right under or provision of the collective agreement. In any event, it says, the evidence does not demonstrate that the reimbursements sought here would be of such benefit that its decision not to reimburse the dues can fairly be characterized as unreasonable or arbitrary.

10Before analysing the parties’ positions and the evidence in support of them, I mention a problem that arose after the hearing had ended.

Post Hearing Submissions

11After the presentation of evidence and argument were complete, counsel for the union wrote a letter to the Board setting out additional submissions in support of its position. The Board had not requested additional submissions on the matters raised. Before sending the additional submissions to the Board, counsel for the union had sought and been denied the agreement of employer counsel to his doing so. When union counsel filed submissions without his agreement or leave of the Board, employer counsel objected that I should not take the additional submissions into account.

12This dispute became the subject of a telephone conference in which employer counsel made reference to several court decisions deprecating the post-hearing continuation of submissions without invitation or leave. Counsel for the union said that he had been involved in other matters in which uninvited post-hearing submissions had been made to arbitrators without criticism, that he was unaware of any requirement for leave, that such a requirement would be unduly formalistic in a labour relations context and that if leave was nevertheless required I should grant it.

13In Walker Estate v. York Finch General Hospital, [1998] O.J. No. 2271, Justice Borins made these observations:

¶33 What occurred subsequent to this hearing reflects a practice that has developed in the past few years which suggests that, in the view of some counsel, subsequent to a hearing … it is appropriate to continue the hearing by entering into communication directly with the judge. This practice was virtually unheard of in the past. …

¶34 The practice of communicating directly with a motions judge, or a trial judge, after a hearing has been concluded, puts the judge in a difficult position. The judge feels that it might be unfair to the party to ignore the communication, with the result that the judge re-opens the hearing, or takes the additional material into consideration. In my view, a judge need not consider uninvited communications sent directly to him or her after the conclusion of the hearing. Indeed, I do not believe that l would be criticized if I ignored the materials sent to me by counsel in this case.

¶35 In my view, this practice is wrong and should stop, Although a wise sage once said “it ain’t over it’s over”, when a hearing has been concluded, it is over. There must be a finality to hearings. If counsel feels compelled to continue a hearing after its conclusion, he or she should follow the appropriate procedure by bringing the appropriate motion. If dissatisfied with the result, appellate procedures are available.

I take it that “the appropriate motion” refers to a motion for leave to reopen a hearing to permit the introduction of further submissions or evidence, as the case may be. The views expressed in the above-quoted passage were adopted in Goodyear Canada Inc. v. Jet Centre Management Ltd., [1998] O.J. No. 4124 (Templeton, J.) and Docouto v. Ontario, [2000] O.J. No. 3322 (Nordheimer, J.), where judges noted having received and ignored post-hearing or post-trial communications.

14While labour arbitration hearings differ from court proceedings in a number of respects, uninvited post-hearing submissions create the same sort of difficulties for an arbitrator as they do for a judge, and the need for finality is at least as great in the labour arbitration context. Depending on the circumstances, that need for finality may outweigh whatever considerations are said to favour reopening a hearing to receive further submissions.

15In my view if one party wants a completed hearing re-opened so that additional evidence or argument can be put before the arbitrator, then as a matter of courtesy to the other parties and of respect for the process it should first seek the consent of the other party or parties. If another party objects, then a party who still seeks to reopen should send the arbitrator a written request for leave to reopen, copied to the opposite party or parties. It should not simply put the evidence or argument before the arbitrator in an apparent attempt to pre-empt the opposite party’s right to object to the reopening.

16A request for leave to reopen should set out the reasons why the requesting party says the arbitrator should reopen the hearing to receive the further evidence or argument rather than give effect to the need for finality, and describe the intended further evidence or argument only as much as may be necessary to explain those reasons. The opposite party or parties should not consider themselves obliged to respond to the application for leave unless the arbitrator asks them to do so. The arbitrator should not ask for their response, and should simply dismiss the request, if the request does not make an arguable case for reopening. If the request makes an arguable case for reopening, then the other parties should be given an opportunity to answer it before the decision whether to grant leave is made. If leave is granted, it should only be on terms that afford the other parties the opportunity to respond to any new material on the merits.

17In this case, union counsel sought only to make further submissions, not to introduce additional evidence. While he described the new submissions as mere clarifications of earlier ones, there was at least one point that counsel for the employer fairly characterized as “new.” In my view, a number of considerations weighed against my refusing to entertain the submissions. The legal and interpretive issues were apparently of importance to the parties beyond the circumstances of these grievors and this Ministry. The union and employer had invested considerable hearing time in getting to a point at which it could fairly be said that those issues had been fully explored. The parties had agreed that the result in these proceedings would have “precedential value.” A refusal to consider the new submissions might have weakened or have been thought to weaken the precedential value of the resulting decision. Taking the additional written submissions and any written employer response into account would not require additional oral hearing time, and seemed unlikely to appreciably delay the release of a decision. In those circumstances I undertook to consider the additional submissions and awards cited in support, as well as any response that the employer wished to make, which it was given an reasonable period of time to provide. Accordingly, I have considered the additional submissions and employer counsel’s response.

Analysis: Whether the grievances are arbitrable

18The employer contended from the outset that these grievances were not arbitrable, in that they did not involve a dispute about the interpretation, application, administration or alleged violation of the collective agreement. The employer was content to have that issue argued and decided after the parties had had an opportunity to put evidence before the Board with respect to the union’s allegations on the merits.

19The policy statement on which the union relies appears under the heading “Other Employee Expenses,” in a document that also sets out mandatory requirements and guidelines concerning the use of government funds and facilities for hospitality and business-related meals:

Other Employee Expenses

¹ Membership fees:

Payment of membership fees may be authorized when membership in an organization is beneficial to the ministry, or when required, under the provisions of collective agreements.

Memberships are NOT considered a taxable benefit to employees when the ministry is the primary beneficiary of the membership. This would be the case when the employee’s professional membership is necessary for the effective performance of his/her duties.

20Employer counsel observed that reimbursement of membership fees is a matter on which its collective agreement with OPSEU is silent, and that the decision whether or not to reimburse the membership fees of employees covered by that agreement is simply the exercise of a reserved management right. He submitted that when there is no allegation that a particular exercise of management rights is prohibited by a provision of the collective agreement, management action is not subject to an implied requirement of reasonableness unless that action has some impact on rights contained in the collective agreement. In that connection he cited Anderson et al., 1093/01 (Brown, June 27, 2003), Nunn, 141/93 (Kaufman, April 10, 1995), Corporation of the City of Etobicoke and CUPE, Local 185 (1996), 1996 CanLII 20273 (ON LA), 54 L.A.C. (4th) 229 (Springate), Czekierda & Kubiak, 0205/88 (Springate, April 28, 1989), Re York Region Roman Catholic Separate School Board and OECTA (1995), 1995 CanLII 18420 (ON LA), 52 L.A.C. (4th) 285 (Kaplan) and Ashley et al., 2001-1700, etc. (Abrahmsky, November 5, 2003). He submitted that these grievances are simply inarbitrable in the absence of an allegation that some particular collective agreement right was adversely affected by its decision not to reimburse the professional membership fees of a Tax Auditor.

21The policy on which the union relies states that payment of membership fees “may” be authorized in either of two circumstances: when membership is beneficial to the ministry or when payment is required under the provision of a collective agreement. Union counsel argued that because the employer has no choice but to reimburse when a collective agreement so requires, the word “may” must be interpreted to mean “shall” in this context, and that this policy is therefore an undertaking that an employee’s membership fees will be reimbursed when membership is beneficial to the Ministry. He cited Anderson, 2183/02 (Stewart, September 30, 2003), Rupert, 374/84 (Gorsky, October 8, 1985), Kuyntjes, 513/84 (Verity, April 9, 1985), Re The Queen in right of Ontario and Ontario Public Service Employees’ Union et al. (1984), 1984 CanLII 2148 (ON HCJ), 45 O.R. (2d) 361 (Ont. Div. Ct.), and Re Brampton Hydro Electric Commission and C.A.W.-Canada et al. (1993), 108 D.L.R. (4th) (Ont. Div. Ct.) in support of the proposition that an employer’s decision in exercise of its management rights is subject to the test of reasonableness, and that whether it has complied with its own policy statements is a standard against which the reasonableness of the decision can be assessed.

22Union counsel submitted that the wage provisions of the collective agreement can be affected by a decision whether to reimburse membership fees, because reimbursement would be akin to a wage increase. He also argued that the reimbursement policy is among the “rules and regulations” that must be reasonable having regard to the emphasized portions of the following article of the collective agreement:

Article 2 Management Rights

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

Union counsel submitted that a policy that permits an unreasonable outcome is itself unreasonable, so if the application of the policy here is unreasonable then the policy itself is unreasonable and, therefore, contrary to Article 2.1. If the policy could not be reviewed by the Board, he observed, then it would leave open the potential for favouritism in a matter that, in essence, affects employee compensation.

23Employer counsel submitted that alleged impact on the provisions of the reserved management rights clause (Article 2.1) itself cannot be used as the basis for an implication that management rights must be exercised reasonably, that there must be some other provision of the collective agreement on which the impugned action allegedly impacts. In any event, he said, the phrase “rules and regulations” in Article 2.1 refers to rules and regulations that govern the conduct of employees, not a policy like this that outlines the circumstances in which reimbursement may occur.

24My analysis of this issue begins with the union’s characterization of the policy statement on reimbursement of membership fees as an “undertaking” to bargaining unit employees that payment “shall” be made in certain circumstances.

25On its face the policy statement is a payment authorization. I do not accept that it is an undertaking to employees, nor that imposes a payment requirement. Payment of membership fees is authorized if a collective agreement so requires or if the membership would be of benefit to the ministry. The authorization does not impose a requirement that payment be made in either case. The fact that payment is authorized when a collective agreement so requires does not transform the authorization itself into a requirement. Nothing in the document supports the notion that this was an “undertaking” to the union, or to the employees it represents, that the employer would exercise its management rights in a particular way. There is no allegation or evidence that the employer did or said anything that would have led the union to understand it in that way nor, indeed, any evidence that it did understand it that way.

26I am not persuaded that the policy statement in issue is an instance of what Article 2.1 refers to as “rules and regulations.” When used in a management rights clause, that phrase generally describes requirements of general application that an employer imposes on employees concerning their conduct or job performance. Examination of the other examples of management action enumerated in Article 2.1 supports employer counsel’s argument that the phrase is used in that sense in Article 2.1. It is difficult to imagine that by agreeing that “rules and regulations” would be reasonable the employer intended or the union believed that any decision of general application that the employer might announce concerning how it would thereafter manage its operations would be exposed to arbitral review for reasonableness. I find that the policy statement in issue here is not something that Article 2.1 expressly requires to be reasonable. I would add that I do not accept the argument that a rule or regulation is unreasonable merely because it might be applied in an unreasonable way or with an unreasonable outcome.

27The union cites Anderson, 2183/02 (Stewart, September 30, 2003) for the proposition that decisions concerning reimbursement of membership fees under this policy statement can be reviewed for reasonableness at arbitration. In that case, the grievor was employed as a professional forester. The Professional Foresters Act, 2000 required that all those employed as professional foresters, whether in the public or the private sector, be licensed by the Ontario Professional Foresters Association. To be licensed, the grievor had to be a member of that Association. He had sought and been denied reimbursement of the membership fees he paid to comply with the legislation. He grieved the denial.

28In the course of her brief award in that matter, the Chair noted that the Staff Relations Officer representing the employer had made three preliminary objections, the third of which was that “the grievance alleges no violation of a specific provision of the Collective Agreement.” She observed that

Ultimately, it is my conclusion that the grievance must be dismissed and thus, whether or not this third objection is properly characterized as a preliminary issue, given my conclusion in this regard there is no need to address it on a preliminary basis or to address the two other preliminary issues raised.

After rejecting an argument that the statutory membership requirement gave rise to an obligation to reimburse, the Chair made these observations:

… we are dealing with a situation where the Employer has discretion whether or not to reimburse. In his reply submissions Mr. Barclay referred to Ministry of Transportation and OPSEU (Kuyntjes) 513/84 (Verity) in support of the proposition that there was not a proper exercise of discretion in this instance and that “the Ministry rigidly adhered to what they believed Management Board policy to be” in denying the request. There is no need to deal with the Employer’s position that this is an argument that must be rejected on the basis that it was raised for the first time in reply as it is my view that this argument cannot succeed on its merits. The background facts are reviewed in the response to the grievance and Mr. Anderson’s basic position is outlined. I do not view the response as an indication of a blind adherence to a misapprehended policy, as Mr. Barclay has suggested in his submissions. Reference is made to the Travel and General Expenses Guidelines and while reference is also made to what the Ministry “does not do” I view this as a reference to past practice within this Ministry, something that will inevitably form the background for consideration of a matter. While, as Mr. Barclay emphasized, the mandatory obligation for a Forester in Mr. Anderson’s position to be a member of the OPFA was a matter of relatively recent history, and thus this aspect of the matter differentiates this situation from the general practice of not paying such fees, this was a matter that was within the knowledge of the decision maker. Indeed, this matter was specifically clarified by Mr. Anderson’s supervisor at the meeting and is referenced in the decision. The issue is whether a basis upon which the exercise of discretion in this instance can be impugned has been established. It is my conclusion that such a basis has not been established and, accordingly, the grievance is dismissed.

29It is noteworthy that the grievance in Anderson was one to which the mediation/arbitration provisions of Article 22.16 clearly applied, and that the Chair’s brief award does not indicate that the parties had agreed under Article 22.16.7 that the outcome would have “precedential value.” Viewing the award in that context, I do not understand it to stand for anything more than that no basis for impugning management’s conduct had been established. In particular, I do not understand it to have decided that a test like that elaborated in Kuyntjes applies to the employer’s decisions about whether to reimburse membership fees. The decision says only that the exercise of discretion in question there would not fail that test.

30The grievance in Kuyntjes concerned a denial of special and compassionate leave under a provision of the collective agreement (found now in Article 75 of the current collective agreement) that said “A Deputy Minister or his designee may grant an employee leave-of-absence with pay for not more than three (3) days in a year on special or compassionate grounds.” The word “may” was understood to give the Deputy Minister a discretion. The Board found that where the parties’ collective agreement expressly confers a discretion on management, the parties should not be taken to have conferred an entirely unfettered discretion. Rather, they should be taken to have intended that the discretion would be exercised in good faith and without discrimination, that there would be a genuine exercise of discretionary power, as opposed to rigid policy adherence, that consideration would be given to the merits of the individual application and that all relevant facts would be considered and irrelevant considerations rejected in coming to a decision.

31The essential distinction between the discretion about which that was said in Kuyntjes and the discretion implicit in the policy statement in issue here is that the discretion here is not one conferred by a provision of the collective agreement. It is a discretion conferred by one level of management on another, concerning a matter on which the collective agreement is entirely silent. Likewise, the award from which an application for judicial review was denied in Re Brampton Hydro Electric Commission and C.A.W.-Canada et al., supra, was one which found that a discretion expressly conferred by the language of the collective agreement – a “sole discretion” to discharge an employee during the probationary period – was one that could not be exercised arbitrarily or in bad faith.

32The decision in Re The Queen in right of Ontario and Ontario Public Service Employees’ Union et al. (1984), 1984 CanLII 2148 (ON HCJ), 45 O.R. (2d) 361 (Ont. Div. Ct.) dismissed an application for judicial review of a decision of the Board on a grievance by an employee of the then Department of Highways: Howes, 356/82 (Verity). The grievance was that the employer had engaged in a series of redesignations of the grievor’s “headquarters” in such a way as to circumvent the travel expense provisions of the collective agreement. As the court’s decision notes (at p. 364h), Article 22.1 provided a set of mileage rates — cents per mile to be paid to an employee required to use his own automobile — but was silent about the places from which and to which those rates were to be paid. It seems to have been understood, however, that the rates were to be paid for travel between the employee’s “designated headquarters” and his actual work site. Although the concept of designated headquarters was thus critical to the application of that provision of the collective agreement, the agreement said nothing about how headquarters were to be designated for someone with no regular place of work. An earlier GSB decision, Williamson et al., 187/81 etc. (Barton), had held that in those circumstances a ministry could designate headquarters and pay mileage from the designated headquarters to the job site, and that it had the right to designate the grievor’s home as his headquarters.

33The Board’s decision in Howes noted that although the collective agreement contained no definition of “headquarters”, the term was used in several provisions of the collective agreement to define various entitlements, including aspects of job security. The employer’s own manual on travel expenses provided that “The location of an employee’s headquarters shall be periodically reviewed … to determine whether the original arrangement continues to be equitable to both the employee and the Ministry.” The Board concluded that while the employer had the right to designate the grievor’s headquarters, as the Board had said earlier in Williamson, the designation had to be equitable to both the employee and the ministry. It concluded that the employer’s redesignations of the grievor’s headquarters had been not equitable to the grievor, and ordered a remedy.

34On judicial review, the court observed (at p. 366) that

… the board undoubtedly had jurisdiction to enter upon the inquiry, it found art. 22.1 devoid of meaning without exterior reference, and it referred to the very document put forward by management in the course of its application of art. 22.1. There was certainly initial jurisdiction and we find nothing patently unrea­sonable in the interpretation given by the board to the agreement and its application. Accordingly, the application before us will be dismissed with costs.

… In the case at bar, exercising its rights to manage, management promulgated the manual we have cited and in so doing indicated that these rights would be exercised in a certain way, equitable to both sides.

In the light of that language there is again no necessity to imply a term of fairness and non-discrimination; that obligation has been assumed by management in the very instrument it used in carrying out its duty to manage.

35In the case before me there is no term or provision of the collective agreement that is said to be devoid of meaning without exterior reference, and there is no management document in which the employer has expressly stated that it would take the interests of employees into account in making a determination that is critical to the application of a provision of the collective agreement.

36The grievor in Rupert, 374/84 (Gorsky, October 8, 1985) had been discharged for innocent absenteeism. The true cause of the absenteeism, alcoholism, had not been recognized by the grievor or the employer at the time of the discharge, although some members of management had suspected it. Post-discharge evidence established alcoholism as the cause and showed that, as a result of the grievor’s having undergone treatment, there was a more favourable prognosis for future attendance than might have been apparent at the time of discharge. On that basis, the grievor was reinstated. The union argued that the reinstatement should be with compensation from the date of discharge because the employer had failed to follow its “Government Program on Alcohol and Drug Abuse by Employees”, which the award described as “part of [the employer’s] Policy Statement in the Conditions of Employment, as found in the Ontario Manual of Administration.” The Board found that management had failed to follow that policy because, having suspected alcohol abuse, it had not offered the grievor a referral for assessment and treatment and, according to the policy, an employee who cooperated with such a referral would be given “a reasonable opportunity to improve their job performance” (p. 19 of the decision). The Board also found, however, that the grievor would not have accepted the referral.

37Having referred to the Divisional Court decision in Howes, supra, the Board in Rupert observed that

In another case, the Grievor might have been entitled payment from the date of his discharge for lost wages and benefits, because of the failure of the representatives of the Ministry to adhere to the government program on alcohol abuse by employees. Having set it into place and made it part of the conditions of employment included in the Ontario Manual of Administration, an “obligation [had] been assumed by management in the very instrument used in carrying out its duty to manage.” See OPSEU case supra; at p.366. Where, however, as in this case, the evidence is all on the side of the Grievor continuing to deny the reality of his alcohol problem, I do not feel that it warrants the order for payment of salary and benefits from the date of discharge, as requested on behalf of the Grievor, even if such an award were open to me.

Central to this obiter dicta is a conclusion that the court’s characterization of the policy in Howes was also applicable to the policy concerning alcohol abuse.

38I do not take the obiter dicta in Rupert, the decision in Howes or the court’s decision on judicial review of the latter decision as holding that every “policy” of the employer is an undertaking to employees that creates entitlements enforceable at arbitration. That surely depends on the language of the policy in question and the context in which enforcement is sought.

39The Rupert case was not one in which the union alleged that the employer’s failure to abide by its policy amounted to a breach of the collective agreement. There the alleged breach was discharge without just cause, and the discussion about the policy related to an assessment of the damages that flowed from that breach. The issues there might today be analysed in terms of handicap and accommodation, with the employer policy perhaps serving as evidence relevant to the issue whether accommodation would have involved undue hardship.

40The Howes case involved a management determination of a matter which directly affected entitlements under the collective agreement, a context in which an obligation to act reasonably could have been implied on the basis subsequently accepted by the Ontario Court of Appeal in Re Council of Printing Industries of Canada and Toronto Printing Pressmen & Assistants’ Union No. 10 (1983), 1983 CanLII 1638 (ON CA), 42 O.R. (2d) 404 (leave to appeal to S.C.C. refused 52 N.R. 308n), had the Board not concluded that the employer had given an express undertaking on the subject.

41I do not propose to review in any detail the evolution since Re Council of Printing Industries of Canada, supra, of the arbitral jurisprudence concerning the circumstances in which an arbitrator may properly imply an obligation to exercise a right reserved to managerial discretion in a reasonable. It is sufficient to note the Board’s recent observation in Ashley et al., 2001-1700 etc. (Abramsky) at p. 14 that

… under Bousquet, [541/90 (Gorsky)], the jurisdiction of the Board to review the employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s action.

42The union argues that the Board has jurisdiction to review the exercise of discretion complained about here because if the employer had exercised its discretion differently – by reimbursing the dues of some employees – that could have been characterized as interference with the compensation provisions of the collective agreement.

43For purposes of analysis I will accept that if the employer were to reimburse some employees’ memberships dues for the avowed purpose of improving their compensation, or if one could infer from the circumstances that that was the predominant purpose (as where, for example, it was evident that the reimbursement gave the employer no benefit other than the gratitude of the recipients), the reimbursement could constitute a breach of the provisions that the parties have negotiated with respect to the allocation of compensation among bargaining unit employees. On that view, if the union were to grieve that the employer should not have reimbursed dues because its doing so was inconsistent with the compensation provisions of the agreement, the Board might then have to enquire into the reasons for the reimbursement.

44It does not follow that the Board has jurisdiction on that basis to review these decisions not to reimburse dues, particularly dues of a sort that have never before been reimbursed. Such a decision cannot be characterized as inconsistent with compensation provisions which make no provision for reimbursement. That is not to say that a decision not to reimburse could never be the subject of a grievance. It could if, for example, if it was alleged that the decision amounted to discrimination on a basis prohibited by Article 3 of the collective agreement or by the Ontario Human Rights Code. That is not alleged here. The actual exercise of reserved managerial rights complained of in these grievances does not interfere with the compensation provision of the agreement.

45In short, there is no provision of the collective agreement that the employer is alleged to have breached by refusing to reimburse the grievors’ professional dues, and no provision of the collective agreement capable of being adversely impacted by that exercise of management’s discretion. Accordingly, I agree with the employer that its decision not to reimburse the grievors’ dues in professional accounts’ organizations is not subject to review by this Board for reasonableness.

Analysis: Whether denying reimbursement was unreasonable

46Having come to the conclusion that these grievances do not raise an arbitrable issue, it is not strictly necessary to decide the question whether the ministry acted unreasonably in denying reimbursement of the grievors’ membership dues. Since considerable hearing time was devoted to that question, however, it may be helpful to review it and explain my conclusion that the union has entirely failed to prove that the decision was unreasonable.

47Generally speaking, the union’s evidence of and argument about benefit to the ministry was of two sorts. There was evidence and argument that the memberships are or would be of benefit to the ministry, and there was evidence and argument that the reimbursement itself would be of benefit.

48As evidence of the latter sort, for example, the union introduced into evidence the ministry’s March 1, 2002 “Human Resources Plan 2002-2004.” That plan identified Canada Customs and Revenue Agency (“CCRA”) as a competitor of the ministry’s for qualified audit staff. It noted that “CCRA’s compensation/benefits packages are seen to be significantly more attractive” and that the “opportunities for partnerships with the OPS, which may assist the ministry in developing the workforce capacity to deliver its core businesses and support corporate initiatives both now and in the future” included “Review benefits policies/guidelines (e.g. payment of professional dues) in order to remain competitive.”

49It was put to Mr. Mitska in cross-examination that reimbursing membership fees would make employment as a Tax Auditor with the ministry more attractive and help solve recruitment problems. He acknowledged that reimbursement would make the employment more attractive, noting that paying more salary would have a similar effect. He denied that the ministry has a particular problem competing with CCRA for recruits, noting that the ministry has hired people employed at CCRA just as CCRA has hired people employed by the ministry. He also noted that any benefit derived from reimbursing dues would have to be weighed against the cost. Asked if that weighing had been done by the ministry, he said that that would have been done at a higher level than his, and that he assumed that it had. In that connection, he observed that there had been a considerable increase in salaries for Tax Auditors.

50There are two difficulties with the evidence and argument that the ministry’s decision under the policy was unreasonable because the reimbursement itself would be of benefit to it. The first is that while adding membership reimbursement to the benefits of Tax Auditor positions would no doubt make the positions more attractive, there is no evidence before me from which one could assess the economic value of the increased attractiveness of the positions, so as to enable a comparison with the costs of reimbursement. The other and even more fundamental problem is that the policy which forms the foundation of the union’s case does not give the ministry a discretion to reimburse membership dues if the reimbursement would be of benefit to the ministry, but only if the membership would be of benefit to the ministry.

51Turning, then, to the evidence and argument that the memberships are or would be of benefit to the ministry, I begin by observing that proof that the grievors’ memberships do or would provide the ministry with some benefit, however slight, would not be enough to establish that a decision not to reimburse membership dues is unreasonable. No reasonable person would pay more for a benefit than the benefit was worth to them. A decision not to pay for something that would not provide a benefit worth at least the amount paid would not be an unreasonable decision. The union would have to demonstrate that the objective value of the benefit to the ministry of continued membership was at least as great as the cost of reimbursing the membership dues before one could possibly conclude that a decision not to reimburse the dues was unreasonable. The union’s evidence failed in that regard.

Background History – Designations and Memberships

52The 1985 report of the Provincial Auditor studied the operations of the ministry’s Retail Sales Tax Branch. It concluded that “[t]he skills and classifications [sic] of auditors had not kept pace” with the demands of their tasks, noting that in 1983 a position paper prepared by the Branch had advocated upgrading the classification of auditors and recruiting “more qualified/trained” auditors.

53A copy of a Position Specification for a Senior Field Auditor position in the Retail Sales Tax Branch shows that in late 1986 the position was reclassified from Tax Officer 3 to Financial Office 4 (Atypical), and that the “Skills and Knowledge” requirements of the position included “an accounting designation and being a current accredited member such as C.G.A., C.M.A. or C.A.” There is no evidence that there was ever a similar requirement for Corporations Tax Auditors. Indeed, the evidence of Martin Miksza, now Regional Manager of the ministry’s Hamilton office, is that he did not have a designation when he was hired as a Corporations Tax Auditor at the FO4 level in 1985, and he did not attain a designation until after he was promoted to an FO5 Senior Corporations Tax auditor position in 1990.

54­­The 1989 report of the Provincial Auditor again studied the operations of the Retail Sales Tax Branch. It noted that more “qualified auditors” had been recruited, that auditor performance had improved “due to better training of auditors, closer supervision of audits, and improved Auditor’s Handbook and the introduction of laptop computers” and that “better trained and managed auditors had brought in much greater direct revenue than the added collection costs.”

55The long list of “Qualifications” in a November 9, 1990 posting for Senior Field Auditor positions in the Retail Sales Tax Branch included “possession of an accounting designation and current accredited membership in C.G.A., C.M.A. or C.A.” That is the most recent evidence of a “being a current accredited member” requirement for Retail Sales Tax Auditors. The requirement was dropped thereafter. According to witnesses, in 1990 and 1991 at least two tax auditors, including one of the grievors, asked whether it was necessary to maintain membership in the organization from which they had received their designations and were told it was not. The list of the “Qualifications” in postings for Senior Field Auditor positions in the Retail Sales Tax Branch on August 4, 1994, August 15, 1996 and February 3 and March 2, 1998 included “possession of C.G.A., C.M.A. or C.A. accounting designation”, but the former “current membership” requirement did not appear in any of them.

56Ellen Ecker has been coordinator for labour relations for the ministry since 1999. From April 1990 to the time of her promotion in 1999 she was an HR Consultant for the ministry at its Oshawa head office. She testified that the education acquired in attaining a designation is of value to the ministry, but that continuing membership thereafter in the organization that awarded the designation is not. In her period of employment, maintenance of membership had not been a requirement for tax auditors as far as she was aware, and “possession of a designation” had always meant having attained a designation at some time in the past.

57In the late 1990’s, concerns about credentialism led the ministry to clarify that having completed of courses offered by a professional accountancy organization (for TA2 positions) or attained a professional designation (for TA4 and T5 positions) where not the only ways that applicants for tax auditor positions could demonstrate that they had the required level of education. A January 1, 1999 position description for the Field Auditor position Tax Auditor 4 (Corporations Tax), describes its Staffing and Licensing Requirements as

CGA or CMA or CA designation or successful completion of a recognized university degree plus or including courses in Introductory Financial Accounting, Intermediate Financial Accounting, Advanced Financial Accounting. Auditing, Taxation, either Cost Accounting or Management Accounting, and one additional course in Auditing, Taxation, Cost Accounting, Management Accounting or Finance.

58Work done later in 1999 further clarified the accreditation requirements for Tax Auditors at each level of the Tax Auditor series, with emphasis on academic equivalencies between the courses and designations offered by professional accountants’ organizations and courses and programs available at universities and, in some cases, community colleges. A document provided to managers in September 1999 to explain the new accreditation guidelines included this explanation of “recognized professional accounting designation”, which underscored that “having” a designation meant having attained a level of education:

Recognized Professional Accounting Designation: is defined as having met all academic and work experience requirements with respect to degrees, examinations and experience requirements prescribed by the Canadian Institute of Chartered Accountants (CICA), the Certified General Accountants Association (CGA), or the Society of Management Accountants (CMA) [formerly Society of Registered Industrial Accountants], and having had the designation conferred. Alternatively, that the candidate has submitted written proof that their academic and experience qualifications have been recognized as being equivalent to a professional accounting designation by one of the above-named professional accounting associations.

59Mr. Miksza testified that when the equivalencies developed in 1999 were reviewed with and discussed among managers, it was said that some people were not sure whether they had to maintain designations – either as a condition of employment or for purposes of any future job competition. Managers were instructed to make it clear that maintenance of membership was not a condition of employment or promotion. He said he covered this point in his meetings with the employees he then supervised, and also in job competitions in which he had served as a panel member. He acknowledged in cross-examination that at some point after he had moved to the Hamilton office he learned that grievor Tanya Terryberry was confused about whether maintenance of membership was required for advancement. He said he had taken steps to correct that misunderstanding as soon as he learned of it.

60It was put to Ms. Ecker in cross-examination that a posting in early 2003 for a Senior Field Auditor (TA5) position had used the words “successful completion of a CA, CGA or CMA designation” in the Qualifications section. Ms. Ecker was unaware of any decision to use that terminology. Asked by union counsel why that terminology had not been used, she said she had thought it self-evident that the language that had been in use had the same meaning as the language proposed by counsel. She also stated that until the suggestion had been made in these proceedings, she had never been led to believe that employees were under any misapprehension that they must as a condition of employment keep their membership current.

61Ms. Ecker noted that in early 1998, the Professional Institute of the Public Service negotiated a collective agreement provision with the federal Treasury Board concerning reimbursement of membership dues for certain tax auditors at Revenue Canada, later CCRA. Shortly thereafter, in May 1998, eight grievances were filed by OPSEU members concerning reimbursement by the ministry of their professional dues. The issue of reimbursement was raised at the Ministry Employment Relations Committee (“MERC”) in June 1998, and remained on the MERC agenda until some time in 2001. Ms. Ecker testified without contradiction that the question whether maintenance of membership was a job requirement did not come up in the discussion of this issue in the MERC.

62Some or all of the eight 1998 grievances were referred to arbitration. By June 2000, the ministry had undertaken a review of the reimbursement issue, and those grievances were then adjourned sine die. The grievances were revived in 2001 and scheduled for arbitration, and the issue was dropped from the MERC agenda. The only one of those grievances to be pursued to hearing was Huff, 0518/98. The decision in Huff was released February 6, 2002, some 4 months before the filing of the earliest of the grievances before me. That decision stated:

1. This grievance involves a claim that the Ministry is responsible for the payment of the Grievor’s professional dues to the Society of Management Accountants of Ontario. The Employer submitted that it was not obliged to do so by the collective agreement, nor was this situation covered by its policy regarding payment of such dues. The Union did not disagree with those submissions. Accordingly, the grievance is dismissed for the following reasons.

2. The Grievor was a Senior Field Auditor with the Retail Sales Tax Branch of the Ministry of Finance. He was also a Certified Management Accountant (Hereafter “CMA”).

3. The Employer requires that applicants to the Grievor’s position hold a CMA credential. It does so as a convenience, in order to permit it to assess the skills and qualifications of applicants for the position. However, the Employer does not require successful applicants to maintain membership in the Society, nor does it require that a successful applicant maintain her or his status as a CMA.

4. The Employer’s “Travel Management and General Expenses” policy includes the following:

OTHER EMPLOYEE EXPENSES Membership Fees:

Payment of membership fees may be authorized when membership in an organization is beneficial to the ministry, or when required, under the provisions of collective agreements.

Memberships are NOT considered a taxable benefit to employees when the ministry is the primary beneficiary of the membership. This would be the case when the employee’s professional membership is necessary for the effective performance of his/her duties.

5. Payment of CMA professional dues is not an entitlement under the collective agreement. There is also no legislative requirement that persons in the grievor’s position maintain their certification. The Employer said that the payment of such dues is covered only by the policy set out above, which, on its face, leaves payment of membership fees to the Employer’s discretion.

6. There is no evidence that this case is an arbitrary or discriminatory application of the Employer’s policy.

7. The Union is in agreement with the foregoing submissions of the Employer.

8. As there exists no dispute between the parties to the collective agreement, being the Union and the Employer, the Board has no jurisdiction over this matter. Accordingly, the grievance is hereby dismissed.

At the opening of hearings in this matter there was a dispute between the parties about whether for the purposes of these grievances the union was bound, as the employer alleged, by the factual concessions it had made in the Huff matter. The employer chose not to pursue that argument.

Purported evidence of Ministry belief that membership beneficial

63The fact that Retail Sales Tax auditors were required to maintain membership from the mid 1980’s until 1990 was said to demonstrate the ministry’s belief that membership was of value to it. While the ministry’s having required current membership for some auditors in that period bespeaks past belief that it was of value, he ministry’s having abandoned that requirement in 1990 ­­is likewise evidence of the opposite belief. There is no reason to accord the earlier belief more significance than the latter. Indeed, abandonment of the requirement after having imposed it for a time suggests that the decision to do so was an informed one.

64The union also argued that the employer had either fostered or at least deliberately failed to correct employees’ mistaken beliefs that maintenance of membership was a job requirement or provided some advantage (beyond having attained a designation) in advancing to higher level positions. It was suggested that this had resulted in employees’ having maintaining memberships, and that the employer’s having taken advantage in this way and with this result demonstrated that the employer believes it benefits from maintenance of membership.

65Against the historical background to which I have referred, and despite the employer’s having clearly stated otherwise at the opening of these proceedings, two of the grievors testified not only that they had once believed but also that they still believed that maintenance of membership is a condition of their employment in TA4 positions. A third grievor testified that she had believed and still believes that maintenance of membership is required in order to advance from TA4 to TA5 and management level positions. The union does not argue that these beliefs are correct. It does not rely on any alleged employer misrepresentation as a basis for recovery of dues paid by any allegedly mistaken grievor. It offers this evidence solely in support of its theory that the employer fostered or took advantage of such mistaken beliefs, and that this shows that it values the employees’ memberships.

66Grievors Peter Cherwonogrodzky and Terry Watson, both of the ministry’s Hamilton office, each testified that he believed that the “CGA or CMA or CA designation” requirement of his Field Auditor position required that he maintain membership in the professional organization in which he had originally attained a professional designation. They both claimed to base their beliefs on the statutory provisions that prohibit them from using the initials “CA”, “CMA” or “CGA” after their names unless they are current members of the organizations in which they attained their designations. They each argued, in effect, “How can you say you are in possession of the designation unless you are a member in good standing?”

67In cross-examination, Mr. Watson was shown a letter apparently written by him to the Manager of the ministry’s Personnel Service Branch in December 1990. The pertinent portions of the letter are as follows:

I have an accounting designation. I have annually paid the dues charged by the association. I am considering no longer paying these dues. The association will declare me no longer a member for the sole reason that I do not pay my dues to support its various programmes.

1 – For continuing in my current F04 position or when applying for an F05 or any management position with the Ministry of Revenue in the future, will the attainment of an accounting designation still be a requirement. If so, please state the nature of the positions which will still need this.

2 ­– If an accounting designation is needed for some positions, will the presentation of the certificate be satisfactory proof for the "must have an accounting designation" condition of that position – even though I would not be a current paying member?

Obviously surprised that his letter had been kept on file for so long, Mr. Watson acknowledged having sent it. He also acknowledged having received a reply from the then Manager of the ministry’s Personnel Service Branch, the pertinent portion of which read:

As you already possess an accounting designation, your questions regarding application to F.O.5 and Management positions in the Ministry of Revenue which require a designation should not be a concern. Where a designation is required, the presentation of the certificate received, by you, from the Accounting Association would be sufficient proof, and current membership in the Association would not be a necessity.

68Mr. Watson testified that he did not believe the manager’s response now or at the time. He felt it “didn’t stand up to the job description.” He stated that he preferred to believe his interpretation of the job description rather than the letter.

69Tonya Terryberry testified that she believes that “having a designation” is necessary to advance to higher level positions and that “if I stop paying dues that is a barrier, I cannot advance in the ministry.” It is not entirely clear whether she also felt that she had to maintain membership in order to retain her position. She noted particularly that when she attained her designation, the designation initials were put after her name on her business card at her request. She acknowledged in cross-examination that no one in management had told her that she had to put her designation initials on her card, nor had anyone in management told her that she had to maintain membership in order either to advance or to remain in her position.

70During the subsequent cross-examination of Mr. Mitska, union counsel put it to him that Ms. Terryberry had not been told until January of 2003 that she did not need to maintain membership (an assertion that, I note, was not part of her own testimony). His uncontradicted response was that he had not been aware that Ms. Terryberry was confused until she brought it up, and that when she did bring it up he clarified the matter.

71If Mr. Watson and Mr. Cherwonogrodzky truly believe that they must maintain membership as a condition of their employment despite having been told otherwise by the employer, if these are not merely arguments in the guise of statements of belief, then they are mistaken despite the employer’s conduct, rather than because of it. Their mistakes arise from their misguidedly preferring their own interpretations of what the employer wrote in their job description to the employer’s specific and authoritative statements about what it in fact requires or does not require.

72Likewise, if Ms. Terryberry persisted in her beliefs after Mr. Mitska told her otherwise and after hearing the employer clearly state its position in these hearings, her confusion cannot be attributed to the employer’s conduct.

73The evidence of three grievors who refuse to believe what they are told by the employer about its requirements cannot be the basis of any finding that reasonable employees would have been confused about whether they were required to maintain membership, either to keep their positions or to achieve promotion.

74The employer was clear in Huff that maintenance of membership was not a job requirement. There is no evidence that that came as a surprise to the union at that time, nor that the union was previously confused about this. Nor is there any evidence that the union raised any concern about employee confusion, either when the question of reimbursement was being discussed in the MERC or when the eight reimbursement grievances were discussed following their filing in 1998. When employees asked whether it was necessary to maintain membership, as Mr. Watson did in December 1990, they were told it was not. While I accept that there may have been some confusion among employees whose beliefs were susceptible of correction, all the evidence is that when it became aware of any such confusion the employer took proper steps to correct it.

75I find the union’s assertion that the employer either fostered or deliberately refrained from correcting mistaken beliefs about the need to maintain these memberships to be totally without foundation.

76There was also evidence that employees have been sent congratulatory letters when they attained their professional designations. It seemed this was offered as evidence that the ministry believed membership to be of benefit. This is illustrative of a general problem with the union’s case: a failure to distinguish between the value of acquiring a designation and the value of maintaining membership. A congratulatory letter on the occasion of the employee’s attaining a designation can hardly be evidence of the author’s perception of the value of the employee’s maintaining membership thereafter.

77As I have already noted, the Ministry of Revenue does not reimburse the membership dues in professional accountants’ organizations for any of its bargaining unit or managerial employees. The union sought disclosure of any circumstances in which other Ministries had reimbursed such dues for any employee. One non-managerial position was identified, a position in the AMAPSEO bargaining unit at the Ministry of Municipal Affairs and Housing. The incumbent’s membership dues in a professional accountancy organization had been reimbursed, even though such membership was not an express requirement of the position description. The statement of that position’s purpose, as set out in the position description, reads as follows:

To perform controller duties for the Ministry’s crown agencies and corporations, including Ontario Housing Corporation (OHO), Ontario Mortgage Corporation (OMO) and North Pickering Corporation; monitor their financial records, develop financial management strategies. To participate in IFIS projects, including implementation of new functions, upgrades and system enhancements. To provide IFIS analysis, advice and support.

The full position description was shown to Mr. Mitska, who was asked whether it appeared to be similar to Tax Auditor positions in the Ministry of Revenue. He testified that it did not. No other evidence was introduced with respect to the position.

78Union counsel argued that the employer must have thought that the incumbent’s membership in the professional accountants’ organization was a benefit to it. Based on the fact that the work of this AMAPCEO position and the work of a Tax Auditor both involve looking at financial statements, counsel invited me to conclude that the employer’s having reimbursed the incumbent of that one position was evidence that maintaining the memberships of Tax Auditors would be of value to the employer.

79The evidence before me is that the job of the one AMAPCEO bargaining unit employee whose professional dues have been reimbursed is not similar to the grievors’ jobs. The fact that that individual’s dues were reimbursed is of no assistance in determining whether and to what extent the grievors’ memberships afford the employer a benefit of such value that a decision not to reimburse their dues must be unreasonable.

80With reference to business cards, the employer’s “Visual Identity Directive” provides that “a professional degree or designation may appear after the name of a ministry employee only when the degree or designation is a requirement of the position which the employee holds.” Tax auditors are permitted, as Ms. Terryberry was, to have their designation initials included on their business cards after their name if they wish, even though maintaining membership (and hence the ability to use the initials in that way) is not a requirement of their positions. The availability of this option and a supposed tension between it and the Visual Identity Directive were offered as evidence that the ministry believed that maintenance of membership provided it with a benefit distinct from what derived from the employee’s having once attained a designation. There is no obvious tension: there is no evidence that this was permitted for any employee whose position did not require past attainment of a designation. This might have been a somewhat stronger argument for belief in benefit if there had been evidence that the ministry had required, or even encouraged, that the designation initials be added to cards. There was no such evidence.

Purported Evidence of Actual Benefit

81The value to the ministry of the education associated with attainment of a designation is undoubted, and readily acknowledged by the ministry. Proof of having attained a designation is one way that applicants for positions at and above the TA4 level demonstrate that they have the requisite education. The ministry’s position is simply that an employee’s maintaining membership after having acquired the education does not add value from its perspective. The pertinent question is not whether an employee’s having attained a designation is of value to the ministry but, rather, whether and to what extent the employee’s maintaining membership thereafter is of value to the ministry. Generally speaking, the union’s evidence of actual benefit failed to adequately distinguish between the value to the ministry of the employee’s attaining the education and the value to the ministry of the employee’s maintaining membership thereafter.

82For example, the union points to a “Questions and Answers” document issued by the ministry in 1998 to explain Phase Two of its Tax Integrity program, which promised the hiring of additional auditors and others. It suggests that the emphasized sentence in the following passage supports its position that continuing membership has value to the ministry:

Q: Your government promised to reduce the size of the civil service. Will these new positions result in an increase to the existing number of civil servants?

A. These are additional positions that will be recruited from both within and outside the government. Surplus government employees may qualify for redeployment to these positions if they meet the necessary qualifications. The more complex audits require professional designations, and all audits require some accountancy training. It is anticipated that extensive external recruitment will also be required.

The sentence does not say that current membership is required or desirable. The last part of the sentence makes it clear that the focus is on the auditor’s level of training. There is no reason to suppose that the ministry’s reference in this document to a professional designation requirement meant something different from what it had meant for recruiting and promotion purposes since 1991.

83The union also relied on the 1985 and 1989 reports of the Provincial Auditor, and particularly the 1989 findings quoted in paragraph [55] above, as evidence that maintenance of membership had actual value to the ministry in the form of increased tax recovery. Nothing in either report speaks directly to the benefits of maintenance of membership. The subsequent report identifies the increased training of auditors as having lead to positive results.

84Several grievors testified about the benefits they believed that the ministry had derived from their having maintained their professional memberships. They believed that their ability to use the professional designation initials to describe themselves orally and on business cards gave them added credibility with taxpayers and their professional advisors. They said that this increased credibility led to less resistance during the audit process and fewer challenges afterwards, which in turn allowed them to accomplish more in their working hours than would otherwise have been the case. The grievors’ evidence in support of this belief consisted of generalizations about their experiences of interactions with taxpayers: either comparing their interactions with taxpayers before they had attained a designation to their interactions with other taxpayers afterwards, or comparing taxpayers’ reactions to them before and after they identified themselves using the designation initials.

85There are a number of obvious difficulties with translating this anecdotal, impressionistic evidence of taxpayer reaction into an objective and quantitative measure of value to the ministry of continuing membership. The most critical difficulty is that there is no way of knowing how much these perceived taxpayer responses were due to the significance to the taxpayer of the designation initials as a measure of the auditor’s level of education, and how much they had to do with the significance to the taxpayer of the auditor’s having remained a current member of the organization after being granted the designation.

86For the purpose at hand, the appropriate comparison is not one between the experiences of an auditor before and after she completes the CA, CGA or CMA courses and attains the designation. The appropriate comparison would have been between the outcomes when an auditor (having maintained membership) describes herself as a “CA”, “CGA” or “CMA,” and the outcomes when an auditor describes herself as having completed the CA, CGA or CMA courses and been awarded the designation and adds that she has not maintained membership because her job does not require that she do so. There was no evidence before me that addresses that comparison, as union counsel acknowledged in argument. While one might imagine that the use of the designation initials would take a bit less time more efficient and be more satisfying for the auditor than offering the longer explanation, there is no way to know whether the one provides more credibility than the other, nor how much any difference in credibility makes to the outcomes.

87The union also argued that maintenance of membership contributed or would contribute to an image of professionalism that would be reassuring to the public, and that this public reassurance would be of benefit to the ministry. Again, there is no evidence from which one could conclude that the public regards or would regard an auditor who had attained a designation and thereafter complied with ministry requirements concerning continuing education and conduct as any less professional than an auditor who, in addition to the foregoing, had complied with the requirements of one of the professional accountants’ organizations concerning continuing education and conduct. There is simply no evidence from which one could conclude that the organization’s requirements in those respects would add anything to the ministry’s by way of public reassurance, nor any evidence that would assist in valuing any marginal increase in reassurance in order to weigh it against the cost of reimbursement.

88The union argued that because the ministry best knows the reasons for its decision it bore an onus of explanation that it did not discharge. If the ministry’s decision were reviewable for reasonableness, the union would bear the initial onus to adduce evidence sufficient to support a finding that the decision was unreasonable. Only if it did that would any onus shift. In my view, the union’s evidence would not have been sufficient to shift to the ministry any onus that the ministry’s response did not fully discharge.

89For the foregoing reasons, these grievances are dismissed.