GSB# 2002-0104, 2002-0387, 2002-0388, 2002-0389, 2002-0617, 2002-0707, 2002-0796, 2002-0797, 2002-0798

UNION# 2002-0727-0001, 2002-0727-0002, 2002-0727-0003, 2002-0727-0004, 2002-0727-0005, 2002-0727-0006, 2002-0727-0007, 2002-0727-0008, 2002-0727-0041, 2002-0729-0001, 2002-0623-0002, 2002-0605-0003, 2002-0605-0002, 2002-0623-0005, 2002-0713-0001, 2002-0713-0002, 2002-0713-0003, 2002-0713-0004, 2002-0713-0005, 2002-0713-0006, 2002-0713-0007, 2002-0713-0008, 2002-0623-0003, 2002-0623-0004, 2002-0623-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hymers et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Belinda A. Kirkwood

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Lisa Compagnone Counsel Management Board Secretariat

HEARING

June 16, July 7, September 17, December 9 & 10, 2003; February 10, 11, 23 & 24, March 4, 5, 15, 16, 18 & 19, April 29, May 5, 25, 26, September 23, 2004.

Decision

The grievors are water bomber pilots who filed grievances on March 20, 2002, claiming that when the water bombers terminated the compressed work year agreement which the parties entered into in 1991, the Ministry was required to apply the terms and conditions set out in the 1995 Float Agreement, the agreement that was applicable to all of the other pilots in the Ministry at the time of the termination of the compressed work year agreement. Alternatively, the grievors claimed that their working conditions were governed by the preceding 1988 Float Agreement, the agreement which covered all of the other pilots in the Ministry from 1988 to 1995.

The Ministry claims that the 1995 Float Agreement superseded the 1988 Float Agreement, and under the terms of the 1995 Float Agreement, the water bomber pilots were excluded from its coverage, and therefore the water bomber pilots were governed solely by the collective agreement as Schedule 6 employees.

Background

The Ministry has maintained a fleet of aircraft since 1924. Traditionally, the Ministry had operated a fleet of small bush planes as well as larger bush planes such as Twin Otters which it used for water bombing in fire control, as well as other airplanes in its fleet. The air service fleet did not change significantly until the Ministry purchased larger aircraft, helicopters and CL-215 water bombers in the nineteen eighties. In the late nineteen nineties, the Ministry purchased CL-415s to replace the aging CL-215 aircraft to perform water bombing duties. With the purchase of the CL-215s and the later CL-415s, fire control has been done primarily by the CL-215 water bomber pilots, although pilots of other aircrafts are required at times for fire related duties.

By 1988, the classification of pilots was outdated, the cost of operating the fleet was expensive and the wages of the pilots were not competitive with those offered by industry or by other Provinces, and most of the pilots were hired on contract as unclassified employees rather than permanent classified employees.

In 1989 the Ministry began to make changes. Prior to 1989, pilots were categorized on the basis of either VFR (visual flight rules) or IFR (instrument flight rules) rating. In 1989, the Ministry removed this classification system and classified the pilots on the basis of five standards which were set out in Schedule 6 of the Regulations to the Public Service Act [O. Reg. 758/94 s.1]. The Ministry also decided to develop a fleet of classified pilots to fly the CL-215s, whose particular function was fire control, as the CL-215s were expensive to operate, and training for the pilots was expensive as flying this aircraft required a specialized skill level. After 1989, in conjunction with their decision, the Ministry also moved to have all the CL-215 pilots classified, and recruited classified pilots for the CL-215s.

The grievors are water bomber pilots who were originally CL-215 pilots, but who have since become CL-415 pilots. For simplicity, I will refer to these pilots who hold the CL-415 classification and would be affected by this decision as CL-215 pilots.

All pilots, as members of the Union are covered by an overall collective agreement entered into between the Ministry and the Union. However as there are a multitude of different work demands and arrangements among the various groups of union members, it is common for the Ministry to enter into further agreements that better reflect the needs of a specific constituent. Specifically, in this case the pilots have entered into various agreements or memoranda of understanding which have then had the effect of amending the terms of the collective agreement as it has been applied to the pilots.

In 1981, the Ministry and the Union entered into an agreement, modifying the collective agreement, which the parties refer to as the “1981 Float Agreement” which set out the hours of work that were to occur over the course of the year and provided that the “Conditions and Employment Benefits” under the collective agreement would apply, subject to certain limitations that were defined in the 1981 Float Agreement. This agreement covered all of the pilots in the Ministry.

In 1988, the parties negotiated an agreement that replaced the 1981 Float Agreement, which the parties refer to as the “1988 Float Agreement”. Similar to the 1981 Float Agreement, this agreement contained improvements to the terms of the collective agreement as it applied to the pilots. In the case of both of these agreements, the pilots work the whole year based on a pattern of work that is common in many groups of employees, such as working on schedules based upon five days on work and two days off, and including additional payments or time off in lieu to compensate the pilots for their irregular and demanding hours.

The 1988 Float Agreement proved costly to the Ministry as it related to the CL-215 pilots. There was a large amount of overtime paid during the summer as a result of the high demand on the water bomber pilots during the fire season, and then the Ministry had to pay them during winter even though there was little work to keep these pilots occupied. As a result, the Ministry approached the CL-215 pilots to discuss the possibility of working on a compressed work year arrangement.

The CL-215 pilots were amenable to entering into such discussions as under the 1988 Float agreement they were required to be available during the summer and they recognized that the Ministry had little or no work for them to do during the winter months. The CL-215 pilots also saw an opportunity to obtain freedom from their work obligations during the winter season.

Representatives of the CL-215 pilots, in particular, AL Hymers and Bob Graham, worked with the Ministry, specifically Jamie Sargent, who was the Assistant Director of Aviation Service and Fire Management, to reach an agreement using a compressed work year arrangement. The talks and the proposals exchanged centred upon an application of Article 7 of the collective agreement then in force, and its system of compressed work weeks. The negotiations for a compressed work year arrangement based on Article 7 of the collective agreement, did not however result in a settlement, as the CL-215 pilots failed to ratify a proposed agreement in September 1989.

In February 1991, the negotiations focused on a different approach to the creation of a compressed work year with the result that the Ministry and the Union on behalf of the CL-215 pilots entered into an agreement in 1991, which was very different from the earlier float agreements. In March 1991, the CL-215 pilots, through negotiations between AL Hymers, and Jamie Sargent, developed terms and conditions of a compressed work year arrangement, which was based on a new schedule to the collective agreement, being Schedule A, and which, to the parties’ knowledge, had not been used by others. Schedule A was based upon a method of averaging hours. The method by which Schedule A was to apply to the CL-215 pilots was developed by the parties in a document, called “Application of Schedule A to CL-215 Pilots Positions”, which is hereinafter referred to as the “Guidelines”. The terms and conditions which the parties agreed to in the Guidelines, specifically applied to the CL-215 pilots.

The central feature of these Guidelines was that the 1885 hours of work that was required to be performed over the year at straight time was compressed into a 30 work week period, which the parties refer to as the fire season, thus eliminating overtime payments during the fire season. At the end of the fire season, in exchange for foregoing overtime during the fire season, the CL-215 pilots were not required to work during the winter months, even though there was evidence that sometimes they did so. The Guidelines also included other features such as the principles upon which a schedule would be based for fire season, and principles applying to the payment of money, time off and leaves.

In order to implement these Guidelines, the Union on behalf of the CL-215 pilots had to enter into a specific agreement with the Ministry. The CL-215 pilots could not be on both Schedule 6 under the Public Service Act and Schedule A to the collective agreement at the same time. As Schedule 6 employees they would have been able to accrue overtime on the basis of weekly hours worked, while under Schedule A, working on a compressed work year, they could not accrue a right to overtime until they had worked 1885 hours. The Ministry had wanted to move the CL-215 pilots to Schedule A on a permanent basis, in line with their long term goals which was to separate the CL-215 pilots from the remaining pilots and to apply a compressed work year to all the CL-215 pilots. These goals had been recommended by Jamie Sargent in an internal management document, at his presentation to the Management Planning Committee in 1988. The CL-215 pilots however, were anxious about the proposed move to a compressed work year arrangement. As a result, the parties entered into an agreement on a one year trial basis and Schedule A was put into effect by a “Minute of Understanding” dated April 11, 1991, hereinafter called the “1991 Minute of Understanding”. Under the 1991 Minute of Understanding, the CL-215 pilots were transferred from Schedule 6 of the Public Service Act to Schedule A of the collective agreement and while the Minute of Understanding was in effect, no longer had access to the Float Agreement as defined in the Minute of Understanding as long as Schedule A was in effect. The 1991 Minute of Understanding entered into between the Ministry and the Union on November 4, 1991 states:

Effective March 18, 1991, CL-215 Pilot positions will be transferred from Schedule 6 to Schedule A for a one-year trial period.

It is hereby understood and agreed that while Schedule A is in effect, the full time classified pilots assigned to these positions will not be covered by the April 1, 1988 Memorandum of Understanding between the Ministry and OPSEU with respect to Pilots (i.e., “Float Agreement”).

The CL-215 pilots were governed by Schedule A each year until the CL-215 pilots terminated the 1991 Memorandum of Understanding effective March 31, 2002. The Union, on behalf of the CL-215 pilots, and the Ministry, entered into an agreement to cover the 2001 and 2002 fiscal year and executed a Memorandum of Understanding in April and May 2002 recognizing the past history and agreeing that the CL-215 pilots would still be considered under Schedule A for the 2001/02 fiscal year.

The April/May 2001 Memorandum of Understanding states in part:

Whereas the parties signed an MOU on April 11, 1991 transferring CL-215 (now CL-415) pilots from Schedule 6 to Schedule A for a one-year period, and

Whereas the parties developed guidelines for the application of Schedule A to CL-215 (now CL-415) pilots dated March 22, 1991 for that one-year trial period, and

Whereas the parties have continued this arrangement past the one-year trail period, now

The parties do hereby agree to the following arrangements with respect to the application of Schedule A to CL-415 pilots for the fiscal year 2001/02:

This parties agree that, except for the changes made herein, the guidelines for the application of Schedule A to CL-215 (now CL-415) pilots dated March 22, 1991 remain applicable for the duration of this agreement.

The parties agree to review the status of this agreement at the end of the current operating season. The parties understand that such a review may result in minor or major amendments to the agreement, or to the termination of the agreement in its entirety.

In September 2001, the CL-215 pilots exercised their right to terminate the 1991 Minute of Understanding effective March 31, 2002. By letter dated March 14, 2002, the Ministry advised the CL-215 pilots that “The default under the current OPSEU collective agreement is Schedule 6. Pleased be advised that the “Float Agreement” does not apply to CL415 Pilots.”

In the interim, in 1995, the non-CL-215 pilots, who had been covered under the 1988 Float Agreement had reached an agreement with the Ministry replacing the 1988 Float Agreement with the 1995 Float Agreement.

On March 16, 1995 the Ministry and the Union on behalf of the non-CL-215 pilots, entered into a Memorandum of Understanding, hereinafter called the “1995 Float Agreement” and the 1995 Float Agreement stated that it was to apply to all pilots “with the exception of the CL-215 pilots”. This clause is hereinafter referred to as “the exclusionary language”. The preamble to the 1995 Float Agreement states:

i. This agreement applies to all classified and unclassified pilots employed by the Ministry of Natural Resources, with the exception of those classified pilots that are assigned to the CL-215 water bomber program.

ii. The intent of this agreement is to recognize the pilots’ irregular working conditions necessitated by the Ministry’s diversified role in resource management aviation and transport.

iii. Unless otherwise provided for by this Agreement, all appropriate provisions of the Public Service Act and regulations and the Collective Agreement apply…

Immediately after the execution of the 1995 Float Agreement, the Union and the Ministry initiated discussions for an agreement focusing on the CL-215 pilots. However, these discussions did not fully develop and did not result in an agreement.

Nomenclature

Although the parties never used the term “default agreement” during their negotiations, the counsel and the witnesses used the term throughout the hearing to refer to the agreement which the CL-215 pilots would be governed by on the termination of the 1991 Minute of Understanding when these pilots were no longer on Schedule A. Accordingly I have used the term in the same manner from time to time in this decision.

Grievances

This grievance arose as the CL-215 pilots exercised their right to terminate the 1991 Minute of Understanding in September 2001, effective March 31, 2002, and the parties differed in their understanding of what agreement was to be govern the working terms and conditions for these pilots.

Claims

The Ministry claims that, with the execution of the 1995 Float Agreement, the default agreement for the CL-215 pilots, should they no longer fall under the 1991 Minute of Understanding, had changed. Upon the termination of the 1991 Minute of Understanding the CL-215 pilots were transferred back to Schedule 6 and their working conditions were determined solely by the collective agreement.

The Ministry claims that as a result of the exclusionary language in the 1995 Float Agreement “with the exception of those classified pilots that are assigned to the CL-215 water bomber program” the CL-215 pilots no longer had access to the 1995 Float Agreement, whether or not the 1991 Minute of Understanding was in existence, or was terminated. The Ministry claims that as the 1995 Float Agreement superseded the 1988 Float Agreement, the 1988 Float Agreement was void, and also was no longer available to the CL-215 classified pilots.

The Union claims and seeks a declaration that once the 1991 Minute of Understanding and Schedule A was no longer in effect, the CL-215 pilots were covered by the 1995 Float Agreement. For the purpose of this claim, the Union accepts the Ministry’s position that the 1995 Float Agreement had replaced the 1988 Float Agreement.

Alternatively, the Union claims that once the CL-215 pilots were no longer under the 1991 Minute of Understanding and Schedule A, the Ministry is bound by the 1991 Minute of Understanding and therefore, the default agreement is the 1998 Float Agreement.

The Decision

The differences between the Ministry and the Union arose because the 1991 Minute of Understanding failed to specifically address what agreement was to govern the CL-215 pilots if the 1991 Minute of Understanding was terminated. The parties entered into the 1991 Minute of Understanding on a one year trial basis with the intent that they would try the compressed work year arrangement to see if it would work, and never specifically addressed in the 1991 Minute of Understanding, what should occur if this arrangement was not satisfactory to the Ministry and the CL-215 pilots. The problem was compounded in that the temporary agreement continued for over ten years, so that by the time the Union terminated the arrangement, there had been changes to the rights obtained by the non-CL215 pilots through negotiations with the Ministry, which had been captured in a new float agreement, being the 1995 Float Agreement.

Both the Ministry and the Union were in agreement that there were only three alternatives that could apply as the default agreement, these being the 1995 Float Agreement, the 1988 Float Agreement or the collective agreement.

The general principles of contract interpretation are stated in British Columbia v. British Columbia Government and Service Employees’ Union [2003] BCCAAA No 289 (Germaine) at paragraph 23:

…Very briefly, the essential objective of a collective agreement, that entails the search for the intention of the parties who made the agreement. The primary source of this information is the language used by the parties to express their bargain. For the most part, the words of the agreement are to be given their plain and ordinary meaning having regard to the context in which they are found and the reasonableness of the meaning in light of the practical consequences. A secondary meaning may be preferred if such an interpretation is dictated by the context of the necessity to avoid an absurdity. The Ministry relies on the general proposition that, “[w]hen faced with a choice between two linguistically permissible interpretations, …arbitrators have been guided by the reasonableness of each possible interpretation, administrative feasibility and which interpretation would give rise to anomalies”(Brown & Beatty, supra)[i.e. 3d. ed. at 4:200]. I accept that proposition as a summary of, or consistent with, the general principles to which I have referred.

And at paragraph 27:

…however, it is necessary to complete this account of the pertinent principles of interpretation. Under the doctrine of contra proferentem, on which both parties rely, an ambiguity is construed against the party which authored the document. As I will explain, the Union relies on a broad application of the doctrine. The remaining principle to note is that extrinsic evidence may assist the arbitrator to determine the mutual intention of the parties in relation to dispute language: University of British Columbia and CUPE, Local 116, [1977]1 Can LRBR 13 (BCLRB No. 42/76). “The fundamental point… is that arbitrators approach their interpretative task with a full appreciation of the circumstances relevant to the dispute contract language”. Nanaimo Times Ltd. and GCUI, Local 525-M, [1996] B.C.L.R.B.D. No 40, BCLRB Decision No. B40/96 at, paragraph 32.

Finding With Respect to the 1995 Float Agreement, Whether it Could be the Default Agreement

I have heard extrinsic evidence on the history of the negotiations of this agreement. After hearing the history of the negotiations, I find that the 1995 Float Agreement is not ambiguous, and the exclusionary language in the 1995 Float Agreement is to be interpreted on the basis of its plain and ordinary meaning to the effect that the CL-215 pilots are excluded from its coverage and are not able to access the 1995 Float Agreement on the termination of the 1991 Minute of Understanding.

On the plain reading of the exclusion clause the CL-215 pilots are not covered under the 1995 Float Agreement. Paragraph i. of the preamble to the 1995 Float Agreement sets out the scope of the agreement when it states:

i. This agreement applies to all classified and unclassified pilots employed by the Ministry of Natural Resources, with the exception of those classified pilots that are assigned to the CL-215 water bomber program.

The parties’ negotiating history of the 1995 Float Agreement supports this interpretation of the exclusionary clause on its plain and ordinary meaning as it demonstrated that the Ministry and the Union intended to restrict the application of this agreement solely to the non-CL-215 pilots. From as early as the negotiation of the 1991 Minute of Understanding, the parties saw the CL-215 pilots as distinct from the remaining pilots, and treated each group separately, and negotiated for each group separately. As a result, the negotiation of the 1995 Float Agreement did not involve the CL-215 pilots in any fashion. The Union did not have any representatives acting on their behalf at the negotiating table, nor as part of any working group to that agreement. Neither the CL-215 pilots, nor their issues, were topics of discussion in this round of negotiations. As such, the separation of the two sets of negotiations affected the scope of the agreement reached.

Evidence of the separation between the CL-215 pilots and the non-CL-215 pilots began as early as 1988. The Ministry began to consider separating the two groups of pilots after it received recommendations from Jamie Sargent in 1988 on the organization and long-range terms for the management of the pilots. Subsequently the Ministry approached the Union to ascertain if the CL-215 pilots were interested in working on a compressed work year. Once the CL-215 pilots expressed an interest in pursuing a compressed work year arrangement, both the Ministry and the Union began to treat the two groups of pilots differently.

Jill Morgan, who began to work as a Job Security Officer for the Union in 1989, and who was involved in negotiations from 1989 to 1993, corroborated the separation of the negotiations for the CL-215 pilots and that of the negotiations for the non-215 pilots. Jill Morgan testified that she set up separate negotiations for the CL-215s, and was trying to negotiate a separate agreement for the CL-215 pilots based on a compressed work year arrangement, and a different agreement for the non-CL-215 pilots. Although in September 1989, the Union members did not ratify the proposal for settlement for the CL-215 pilots for a compressed work year based upon on Article 7 of the collective agreement as first negotiated by the parties, the Ministry reached an agreement with the Union on behalf of the CL-215 pilots in the 1991 Minute of Understanding. The non-CL-215 pilots were not party to any of these discussions, and nor were their issues subject of the negotiations for the CL-215 pilots.

The Ministry Employee Relations Committee (hereinafter referred to as MERC) represents both management and union and functions in part as a process by which various local issues are brought to the wider Ministry and Union level. As reflected in the MERC minutes, and as reflected by the witnesses from both parties, the issues surrounding the CL-215 pilots began to be seen as separate from those relating to the non-CL-215 pilots. For instance, the MERC minutes for April 11, 1990 reflected that the CL-215 pilots were seeking an agreement but the matter was put aside as it was too late to conclude an agreement before the fire season. In February 14, 1991, the separation of the issues relating to the CL-215 pilots was again evident. The MERC Minutes reflect that Al Hymers spoke on behalf of the CL-215 pilots on some of the issues surrounding the compressed work year agreement, and that by the end of the meeting Al Hymers and Jamie Sargent were able to resolve a list of general principles which required the CL-215 pilots to move out of the 1988 Float Agreement onto Schedule A, which ultimately led to the signing of the 1991 Minute of Understanding.

After the CL-215 pilots had operated for one season under the compressed work year arrangement under the 1991 Minute of Understanding, the Ministry conducted a review of the CL-215 pilots and their managers canvassing their views and recommendations on the 1991 Minute of Understanding. This review did not involved the non-CL215 pilots.

Mirroring the negotiations by the CL-215s with the Ministry, Union representatives acting for the non-CL215 pilots were carrying on separate negotiations with the Ministry. The issue of renegotiating the non-CL-215 pilot agreement had been tabled at the MERC meeting in the spring of 1991, with the result that a working group of non-CL-215 pilots formed to meet with Ministry representatives to discuss the issues concerning the non-CL-215 pilots. There were no representatives of the CL-215 pilots in any of these negotiations.

These negotiations were focused only on issues concerning the non-CL-215 pilots. Initially the Ministry was focused on moving the non-CL-215 pilots onto Schedule A, as it had done with the CL-215 pilots, and the Union focused its approach and its drafts based upon Schedule 6 and enhancements to the 1988 Float Agreement. These two different approaches caused the negotiations to stall. However, in January 1993, management refocused its position and the discussions moved from transferring the non-CL-215 pilots to Schedule A to the enhancements negotiated to the 1988 Float Agreement in the 1995 Float Agreement. In all the draft agreements exchanged by the parties the CL-215 pilots were excluded. Once the parties reached an agreement on the terms of the proposed 1995 Float Agreement, the proposal was forwarded by the Union to only the non-CL-215 pilots for ratification.

The letters between Cameron Walker, the Chief Negotiator for the Union, on April 27, 1995 and Rob Kennedy, the Chief Negotiator for the Employer, on May 25,1995 confirm that the Chief Negotiators saw the negotiations on the terms and conditions of employment of the CL-215 and the non CL-215s as separate matters.

Therefore, when the events surrounding the negotiations are reviewed, the approach of both parties was to separate the issues and the negotiations between the Ministry and the Union as they related to the CL-215 pilots and the non-CL-215 pilots. The exclusionary language introduced by the Union reflected the separation of the two negotiations and the intention to exclude the CL-215 pilots from the terms of the 1995 Float Agreement.

There was further evidence that the parties intended to exclude the CL-215 pilots from the 1995 Float Agreement. Jill Morgan, who was the Union’s Chief negotiator in these negotiations until 1993, presented the initial exclusionary language in her proposed draft of an agreement in 1991. Jill Morgan testified that the language was so constructed to reflect the fact that the negotiating process for the two groups of pilots was separate. Jill Morgan testified with reference to the exclusionary language she proposed in her draft agreement in February 1991, “the purpose was to be clear as to whom we were negotiating on behalf of, and so it excluded the pilots that were covered under the CL-215 agreement”.

All future draft agreements proposed by the Union for the non-CL-215 pilots contained language excluding the CL-215 pilots and ultimately exclusionary language formed part of the preamble to the 1995 Float Agreement. Cameron Walker, who took over Jill Morgan’s role as Chief Union Negotiator, and carried on the balance of the negotiations, had the same view of his role and supported the meaning of the exclusionary clause, as Jill Morgan had stated. He testified that the negotiations and the drafts of the agreements he was involved in was only to apply to the non-CL-215 pilots. In his view, the 1995 Float Agreement was not intended to apply to the CL-215 pilots and not to affect them, except as providing a template for future negotiations. The purpose of the exclusion language was such that the 1991 Minute of Understanding was to apply to the CL-215 pilots.

This approach was echoed by Rob Kennedy in his letter to Cameron Walker on May 27, 1995 in which he forwarded a proposed agreement which removed the CL-215 pilots from the 1995 Float Agreement. This letter was responding to Cameron Walker’s letter to initiate discussions for the CL-215 pilots and was proposing an agreement that would reflect the relationship of the CL-215 pilots on a permanent agreement rather than relying on the 1991 Minute of Settlement.

Although there was a great deal of evidence supporting the intention of the parties to exclude the CL-215 pilots from the 1995 Float Agreement, there was no evidence that demonstrated that there was any intent by either party to include the CL-215 pilots within the scope of the 1995 Float Agreement. Over the four years that it took to negotiate the agreement, it was never suggested by the Union that such agreement was to include or ought to include the CL-215 pilots. On the contrary, the evidence from both parties, was, that the parties never discussed the rights or ramifications of these negotiations on the CL-215 pilots.

Finally, as the history of the negotiations established that the 1995 Float Agreement is not ambiguous, that it accords with the plain language of the agreement, it is not necessary to apply the contra proferentem rule. However, even if it were to be applied, it would not assist the Union, as the Union authored the original exclusionary language and must be said to have protected its interests.

Jill Morgan presented a draft agreement containing exclusionary language six days after the Ministry and the Union executed the 1991 Minute of Understanding. Union counsel submitted that for the Ministry to rely on the Union’s exclusionary language was tantamount to fraud, in the context that the Ministry knew that the CL-215 pilots would not agree to remove themselves permanently from the Float Agreement, being the 1988 Float Agreement which was in existence at the time.

As the parties were negotiating separately for each group of pilots, the agreement proposed by the Union six days after the signing of the 1991 Minute of Understanding did not have the significance asserted by the Union. The draft agreement proposed by Jill Morgan was an agreement proposed in the continuum of the negotiations with the non-CL-215 pilots.

When the Union made its proposal, it knew the Ministry’s position, that it wanted to separate the CL-215 pilots from the other pilots, and therefore by including the exclusionary language, after the acceptance of the 1991 Minute of Understanding, it was accepting the Ministry’s position at that point. Furthermore, it was not up to the Ministry to challenge the Union’s intention and language on this point. The Ministry is entitled to accept that the Union had its own objectives and strategy, knew what it was doing in drafting language excluding the CL-215 pilots from its coverage, and was drafting language consistent with those objectives and that strategy.

As a result of the separation of the two groups of pilots in their negotiations and as a result of the testimony of the witnesses, I interpret the exclusionary language as it appears on its face, to deal only with the rights of the non-CL-215 pilots. The language was a reflection of the current status quo at the time and a reflection of the intention of the Ministry and the Union. The CL-215 pilots were governed by Schedule A and the Guidelines, pursuant to the 1991 Minute of Settlement, and were to all apparent circumstances content with working on a compressed year arrangement at that time. They did not issue a notice to terminate the agreement until 2001. On the other hand, the non-CL-215 pilots were not content with their arrangement under the 1988 Float Agreement. The 1995 Float Agreement negotiations were conducted solely by and focused only on non-CL-215 pilots and were for the benefit solely of those non- CL-215 pilots.

The Union in drafting the preamble language set out the scope of the agreement, and defined those which it covered and those which it did not.

In establishing that the intent of the parties was to exclude the CL-215 pilots, the Ministry was able to discharge the burden of proof that the CL-215 pilots fit within the exemption.

Finding With Respect to the Rights Obtained by the CL-215 Pilots Under the 1991 Minute of Understanding

If the 1995 Float Agreement does not apply, then is it the 1988 Float Agreement which applies, as argued by Union counsel, or is it the collective agreement, as argued by Ministry counsel.

To answer this question it is necessary to look at the 1991 Minute of Understanding in the context in which the language was drafted and the reasonableness of its meaning in light of its consequences (British Columbia Government (supra)).

The evidence presented demonstrated that from at least 1981, all pilots were never covered by the collective agreement without modification or amendment. Special adaptations have always been made for the pilots. By the time the negotiations for the 1991 Minute of Settlement were complete the 1988 Float Agreement had been in effect for two years. As the 1988 Float Agreement contained enhancements to the collective agreement and had been drafted to address the needs of all the pilots, as negotiated by the Ministry and the Union, it would require clear language in the 1991 Minute of Settlement to remove the benefits which were in place at the time of the signing of this temporary agreement.

Furthermore, as the transfer of the CL-215 pilots was intended to be on a trial basis to see if it was going to be a suitable arrangement, it would lead to an absurd result to interpret the 1991 Minute of Settlement as removing rights which had been negotiated for the pilots and replacing those rights with the lesser rights under the collective agreement. Therefore, I find that the default agreement was the 1988 Float Agreement.

The final issue is whether the 1995 Float Agreement supersedes the 1988 Float Agreement with the effect that right to access the 1988 Float Agreement is taken away.

Ministry counsel urged me to rely on the testimony of witnesses for both the Union and the Ministry who testified that the 1995 Float Agreement superseded the 1988 Float Agreement, and on Jill Morgan’s testimony that in her view, the CL-215 pilots would not have access to the 1988 Float Agreement as it had been superseded by the 1995 Float Agreement.

As I have found that as a result of the exclusionary clause in the 1995 Float Agreement, the CL-215 pilots were excluded from the 1995 Float Agreement, the 1995 Float Agreement can therefore have no effect on the 1988 Float Agreement as it relates to the CL-215 pilots. Accordingly, the replacement of the 1988 Float Agreement by the 1995 Float Agreement is applicable only for those whom it covered, the non-CL-215 pilots.

To take away rights to support such a change in entitlement, disentitling the CL-215 pilots to the advantages that they had gained in the 1988 Float Agreement, would require clear language in the 1995 Float Agreement to that effect.

Therefore I find that upon the termination of the 1991 Minute of Understanding, the CL-215 pilots, although they are no longer Schedule A employees, are Schedule 6 employees, and are under the collective agreement as amended by the 1988 Float Agreement.

I remain seised in the event there is any difficulty with the implementation of this decision. As agreed by the parties at the outset of the hearing, I am seised of outstanding grievances that were put before me at the time but were kept in abeyance, subject to the effect of this decision on those grievances.

Dated at Toronto, this 18th day of January, 2005