GSB# 2004-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell Barristers & Solicitors

FOR THE EMPLOYER

David Strang Acting Associate Director Management Board Secretariat

HEARING

July 5, 2004.

Decision

At the hearing the union indicated that it was taking the position that the language of the collective agreement was clear and unambiguous and further that, as it was not asserting any ambiguity requiring reliance on evidence of either negotiating history or past practice, the employer should be required to lead any such evidence (upon which it might seek to rely in support of any argument that the language of the collective agreement was ambiguous) prior to the union being required to do so. The union acknowledged that it would intend to respond to any such evidence in reply, and if necessary, argue in the alternative that any ambiguity supported its position. The employer took the position that the union was required to call such evidence first as it bore the onus of establishing its case.

Neither party took the position that I ought to make any preliminary decision as to the existence of any ambiguity or not. The union acknowledged that typically, arbitrators reserve any such decision in the face of any assertion that an ambiguity exists (at least with respect to any latent ambiguity) which, the employer asserted, requires evidence of negotiations and/or practice in order to fully appreciate the parties’ intention with respect to the language used in the collective agreement.

The union acknowledges that it is required to proceed first for the purpose of attempting to establish its case. That case rests on an assertion that the employer has failed to provide certain benefit coverage in the face of clear language in the collective agreement requiring it to do so.

It is the employer which seeks to rely on an asserted ambiguity(ies). It asserts a different meaning to the language of the collective agreement than that asserted by the union. That position comprises its defence to the allegation that it has violated the collective agreement. Absent the assertion of an ambiguity, there would be no requirement to hear any evidence of negotiating history or past practice. The parties would argue the matter based on the words of the collective agreement. It is the employer which seeks to put such evidence before me as part of its case.

While it may be that parties typically reach an agreement as to how to proceed in such circumstances, no such agreement was forthcoming here. The fact that the union has the ultimate legal onus to establish its case does not determine this issue. The union would be prepared to attempt to meet that onus based solely on its position regarding the language of the collective agreement. It is the employer which is asserting reliance on evidence of negotiating history and/or past practice.

In that circumstance, I am satisfied that the employer cannot properly require the union to call evidence on any issue of ambiguity first. The union is entitled to hear the evidence upon which the employer seeks to rely and respond to it as it deems necessary in order to respond to the employer’s asserted defence. Such is a proper matter for reply evidence.

This matter is set to reconvene on July 8, 2004. At that time the union will be expected to present its evidence. Evidence regarding issues of ambiguity in the language of the collective agreement will be heard in accordance with the determination in the paragraph above. The parties are

reminded that any matter reviewed or discussed in the mediation process is not before me by way of evidence, nor have I received any documentary material into evidence. Counsel are also to turn their minds to the number of days which they believe the matter will require for hearing and come prepared to set further dates at the hearing on July 8th.

Dated at Toronto this 7^th day of July 2004.