GSB# 2002-2077

UNION# OLB425/02

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (McIlwain)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael Watters

Vice-Chair

FOR THE UNION

Julia Noble Counsel Ontario Liquor Boards Employees’ Union

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

October 26 & 27, December 7, 2004.

Decision

At the time material to this dispute, the grievor, Mr. Bill McIlwain, worked as a casual Customer Service Representative at Store #133 in Petrolia, Ontario. His grievance dated September 30, 2002 raises, inter alia, the following two (2) issues:

i) Was the grievor entitled to a paid fifteen (15)minute rest period, under article 31.1(d)(i) of the collective agreement, on the occasions he was scheduled to work a four (4) hour shift on Sundays, from 12:00 noon to 4:00 p.m., in the approximate period April to October, 2002;

ii) Did Mr. Bob Poulin, the District Manager, arrange for, and effect, the grievor's transfer in October, 2002 to Store #202 in Sarnia, Ontario in retaliation for the latter's refusal to abandon his complaint and for his ultimate filing of the grievance concerning entitlement to a paid rest period.

To date, there have been six (6) days of hearings on the merits of the grievance. The parties used three (3) additional days, these being October 26, October 27 and December 7, 2004, to present legal argument in respect of three (3) procedural issues. These issues, simply stated, are as follows: (i) is the Union entitled to lead similar fact evidence concerning a large number of incidents in which Mr. Poulin allegedly intimidated and/or threatened employees who attempted to exercise their collective agreement rights; (ii) is the Union entitled to lead extrinsic evidence to establish that article 31.1(d)(i) is either patently or latently ambiguous; and (iii) is the Union entitled to lead extrinsic evidence to create an estoppel against the Employer.

SIMILAR FACT EVIDENCE

The parties filed a statement of Agreed Information for purposes of providing some context for the procedural dispute relating to the introduction of similar fact evidence. The information, in substance, is a summary of the anticipated evidence of the Union witnesses. I note, for the record, that paragraph #1 of the Agreed Information provides the following stipulation:

“1. This Agreed Information will be introduced as an exhibit to address the Employer's objections to some of the evidence the Union has advised it will tender in the McIlwain Arbitration. The Parties agree that once Vice-Chair Watters issues his decision about these objections, this document will no longer be an exhibit and will not be relied upon by the Parties; .......................

I attach the statement of Agreed Information to this award.

The Employer objects to the Union's request to adduce the similar fact evidence set out in the Agreed Information. The Employer's position may be summarized, as follows:

(i) the Union seeks to adduce the similar fact evidence in order to show a disposition or propensity on the part of Mr. Poulin towards unfair and inappropriate conduct. Counsel for the Employer argued that similar fact evidence cannot be admitted for this purpose. It was her submission that for such evidence to be admissible, it must relate to an issue relevant to the proceeding, other than disposition towards improper conduct. On her analysis, the evidence sought to be introduced is both collateral and irrelevant to the distinct issues raised in Mr. McIlwain's grievance;

(ii) the Union has failed to establish that the evidence falls within the exception to the general rule excluding evidence going merely to disposition. More specifically, counsel for the Employer submitted that the Union has not demonstrated that the probative value of the proposed evidence outweighs its prejudicial effect. It was the thrust of her argument that, to the contrary, the prejudicial effect on the Employer far outweighs any probative value the evidence might have in respect of the specific issues in dispute;

(iii) counsel for the Employer acknowledged that in civil, as opposed to criminal, matters, it is arguable that the test for the admission of similar fact evidence is more liberal in the sense that such evidence may be received if logically probative to the case and if its introduction would not be unfair or prejudicial to the opposite party. Counsel asserted that the Union has also failed to satisfy this lesser standard;

(iv) the Union has failed to show that there is a "striking similarity" between the circumstances present in the case of this grievor and the incidents and events outlined in the statement of Agreed Information. Counsel for the Employer reviewed the aforementioned statement at some length. She noted that many of the incidents alleged, such as those involving Mr. Steve Bechard, Mr. Ron Mitchell, Mr. Bob Sussex and Mr. John Nenez, do not relate to transfers and, accordingly, cannot properly be considered as evidence of similar facts;

(v) counsel for the Employer further noted that the 1997 Labour Board Application filed by the Union and the grievances filed by Mr. Mike Furey, Mr. Rick Chrysler and Mr. Guy Jeremschuk were all resolved by Minutes of Settlement. Counsel stated that the Employer did not file a response to the 1997 application, as it believed the matter was fully and finally resolved by the settlement. She argued that it would be prejudicial for the Employer to now have to defend itself against the allegations some seven (7) years after the fact. She, similarly, asserted that it would be unfair for the Employer to have to defend the three (3) aforementioned grievances which it also believed were fully and finally resolved. Counsel argued that if the Union is permitted to pursue these matters, this Vice-Chair may potentially be called upon to make adverse findings against the Employer in respect of matters that were fully and finally settled. It is the thrust of the Employer's position that this could seriously undermine the sanctity of the settlement process. Counsel, therefore, asked that the Union not be permitted to lead evidence about the circumstances surrounding the 1997 Labour Board Application and the Furey, Chrysler and Jeremschuk grievances;

(vi) counsel for the Employer observed that a number of the allegations in the Agreed Information are either untimely or are being raised as issues for the first time. She argued that it would be prejudicial to require the Employer to respond to such allegations at this time. Counsel also noted that a number of additional witnesses will have to be called if I permit the Union to proceed with the similar fact evidence. She submitted that this would serve to significantly prolong this case and could result in this Vice-Chair having to make unnecessary findings on credibility in respect of matters that are purely collateral, and not central, to the instant dispute;

(vii) counsel for the Employer submitted that the Union's attempt to introduce matters which are now before the Ontario Labour Relations Board, in the form of the 2003 Application, amounts to an abuse of process. She maintained, again, that the hearing will be significantly lengthened if the matters in the 2003 Application are addressed in this proceeding. Counsel also asserted that the Union, in effect, is asking me to determine the very issues filed with the Ontario Labour Relations Board;

(viii) lastly, counsel for the Employer put the Union on notice that she would object to any attempt by the Union to lead hearsay evidence in respect of the 1997 Labour Board Application. More specifically, she argued that Mr. Steve Saysell, a Grievance Officer with the Ontario Liquor Board Employees' Union, would not be an appropriate witness on this area as he was not employed by the Union until 1999. Counsel expressed the opinion that the initial grievor, Ms. Gauvin, would be the most appropriate witness.

Counsel for the Employer asked that I provide a ruling on the admissibility of the similar fact evidence rather than receive it subject to a reservation as to admissibility and weight. She referred to the following authorities in support of the Employer's position: R. v. B. (C.R.), 1990 CanLII 142 (SCC), 1 S.C.R. 717; Regina v. Smith (1992), 1992 CanLII 79 (SCC), 94 D.L.R. (4th) 590 (S.C.C.); Regina v. Handy (2002), 2002 SCC 56, 213 D.L.R. (4th) 385 (S.C.C.); Re Canadian Pacific Hotels Corp. (Royal York Hotel) and Hotel Employees, Restaurant Employees Union, Local 75 (1996), 1996 CanLII 20225 (ON LA), 58 L.A.C. (4th) 42 (Saltman); Re Religious Hospitallers Of Hotel-Dieu Of St. Joseph Of The Diocese Of London and Ontario Nurses' Association (1995), 1995 CanLII 18345 (ON LA), 47 L.A.C. (4th) 84 (Watters); Re Windsor Board of Education and Federation of Women Teachers' Associations of Ontario (1982), 1982 CanLII 5080 (ON LA), 3 L.A.C. (3d) 426 (Gorsky); Re Eurocan Pulp and Paper Co. and Communications, Energy and Paperworkers’ Union of Canada, Local 298 (2000), 2000 CanLII 50230 (BC LA), 93 L.A.C. (4th) 95 (Hope); Re Cambridge Memorial Hospital and Service Employees International Union, Local 204 (1996), 1996 CanLII 20250 (ON LA), 59 L.A.C. (4th) 195 (Brent); Re Toronto Police Services Board and Toronto Police Association (1999), 1999 CanLII 35915 (ON LA), 82 L.A.C. (4th) 129 (Marcotte); Re Les Suites Hotel and Hospitality and Services Trade Union, Local 261 (2003), 2003 CanLII 89561 (ON LA), 119 L.A.C. (4th) 122 (Dumoulin); Re Corporation of County of Norfolk and Building Service Workers' Union, Local 220 (1973), 1973 CanLII 2135 (ON LA), 4 L.A.C. (2d) 108 (Hanrahan); Re Hotel-Dieu Grace Hospital and Ontario Nurses' Association (1997), 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (Picher); Ontario Public Service Employees Union (Dale et al.) and Ministry of Health and Long-Term Care, GSB Nos. 0783/00, 1314/00, 0883/01 (Abramsky); Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1993), 1993 CanLII 16721 (ON LA), 34 L.A.C. (4th) 85 (Shime); Canadian Union Of Postal Workers and Canada Post Corp. (McConnell Grievance), (1997) C.L.A.D. 163 (Thistle); R. v. Biddle (1995), 1995 CanLII 134 (SCC), 123 D.L.R. (4th) 22 (S.C.C.); Krause v. The Queen (1986), 1986 CanLII 39 (SCC), 33 D.L.R. (4th) 267 (S.C.C.); Re Laurentian Hospital and Ontario Nurses' Association (1997), 1997 CanLII 25110 (ON LA), 67 L.A.C. (4th) 289 (Pineau); Ontario Liquor Boards Employees' Union v. Liquor Control Board of Ontario, GSB No. 329/98 (Harris); Ontario Liquor Boards Employees' Union (Wicken) v. Liquor Control Board of Ontario, GSB No. 2216/97 (Knopf); Re London Public Library Board and Canadian Union of Public Employees, Local 217 (1996), 1996 CanLII 20223 (ON LA), 55 L.A.C. (4th) 361 (Picher).

The Union asserts that I should permit it to adduce the similar fact evidence set out in the Agreed Information. The Union's position on this aspect of the dispute may be summarized as follows:

i) I have the requisite jurisdiction to receive the evidence under section 48(12)(f) of the Labour Relations Act, 1995. This section provides that an arbitrator has the power "to accept the oral or written evidence as the arbitrator.........., in its discretion considers proper, whether admissible in a court of law or not";

ii) the similar fact evidence is relevant evidence that I need to hear in order to determine whether the conduct complained of in the grievance is indicative of an on-going pattern of misconduct on the part of Mr. Poulin in the form of reprisals and intimidation of employees who attempt to exercise their contractual rights;

iii) the similar fact evidence is relevant to the remedies the Union requested on the first day of hearing, including:

1. An order directing the Employer to discipline the District Manager, Mr. Poulin, and the Acting District Manager, Mr. Loupos, for their threatening and intimidating conduct towards the Grievor and for the interference in the representation of the employees by the Union;

2. An order directing the Employer to post, in a conspicuous place in every store in the Grievor’s District, a statement outlining and confirming the rights of bargaining unit employees to file a grievance pursuant to the collective agreement and the Crown Employees Collective Bargaining Act, 1993, and to otherwise participate in the lawful activities of the Union, such statement to be signed by authorized representatives of the Employer and the Union;

3. An order directing the Employer to provide training to the District Manager and the Acting District Manager with respect to the rights of employees under applicable labour legislation and the collective agreement;

Counsel for the Union argued that these remedies relate to the allegation that there is an on-going pattern of misconduct and that I need to receive the evidence about this pattern for purposes of assessing the appropriateness of the broad remedial request. She submitted, generally, that the evidence bears on a principle matter in dispute and cannot, therefore, be viewed as merely collateral evidence;

(iv) counsel for the Union also reviewed the statement of Agreed Information in considerable detail. On her reading, the allegations described therein show a "striking similarity" to the circumstances surrounding the grievor's complaint. In this regard, she noted the following: (1) Ms. Gauld was advised by her Store Manager that Mr. Poulin was considering transferring her out of the Essex Store to the Leamington Store, as a consequence of her activities as a Union representative; (2) Mr. Jeremschuk was actually transferred from Store #32 to the Windsor Depot because he continued to file grievances for other employees in his role as a Union steward; (3) Mr. Poulin threatened to transfer Mr. Chrysler out of the Blenheim Store; and (4) Mr. Poulin frequently communicated his threats through a Store Manager. In the words of counsel, transfer is Mr. Poulin's "reprisal of choice";

v) counsel for the Union observed that Mr. Poulin sometimes used "other tactics". She argued, however, that "the essence" is similar. Again, to quote counsel, "if you file a grievance or assist in filing a grievance or refuse to withdraw a grievance, something bad will occur to you". Reference was made to the following allegations contained in the Agreed Information: (1) Mr. Poulin threatened to take away privileges, if Mr. Bechard continued to pursue the McIlwain grievance; (2) Mr. Poulin advised Ms. Gauvin that he would immediately post a full-time vacancy, with the likely result that she would not be the successful candidate, if she did not withdraw her grievance;

(3) Mr. Poulin threatened Ms. Welzel with discipline for exercising the contractual right to file a grievance and subsequently punished her, by giving her fewer hours, for not withdrawing the grievance; (4) Mr. Poulin advised Ms. Welzel that a requested transfer would be possible, if the grievance went away; and (5) Ms. Gauld was demoted from an Acting Manager position, and lost a District Trainer position, because she did not, as instructed, tell another employee that his grievance lacked merit.

vi) counsel for the Union stressed that, with the exception of the 1997 Labour Board Application, all of the allegations listed in the Agreed Information arose in the Western Region following Mr. Poulin's appointment as District Manager in2001. She argued that the allegations are similar to the type of treatment received by the instant grievor. Counsel submitted that there is a "distinctive feature unifying the incidents" and that the cogency of same "gathers strength from the number of complaints";

vii) counsel for the Union argued that, pursuant to the test articulated in the criminal law cases, the probative value of the similar fact evidence outweighs any prejudicial effect on the Employer. Indeed, she suggested that prejudicial effect, in terms of potential impact on a lay jury, is not as important a consideration in the context of an arbitration conducted by an arbitrator experienced in determining what evidence is relevant in law and in fact. In counsel's opinion, the similar fact evidence sought to be introduced here satisfies the civil law test for admission; that is, the evidence is logically probative and will not be unduly oppressive or unfair to the Employer. She suggested that common sense dictates that the evidence be considered in all of the circumstances of this case. Counsel further suggested that I could choose to admit the evidence and then later determine whether to rely on it or to give it any weight;

viii) counsel for the Union argued that it would not be inequitable for me to hear the allegations surrounding the Jeremschuk and Chrysler grievances, notwithstanding that both grievances were settled. She stressed that the Union is not asking me to actually hear their grievances but, rather, to admit evidence concerning the surrounding circumstances in order to establish a course of conduct on the part of Mr. Poulin and a motive for the transfer of the grievor. Counsel also suggested that a connection has not been established between the Furey settlement and the allegations outlined at page 8 of the Agreed Information. She submitted that I cannot conclude that the threat to Mr. Furey that he would not be transferred unless he withdrew two (2) other grievances is the matter that was settled;

ix) counsel for the Union disputed the Employer's submission that the Union's request constitutes an abuse of process. She stressed that the Union, in this proceeding, is not asking me to make findings or to provide remedies sought in the 2003 application to the Ontario Labour Relations Board. Rather, the Union wishes to rely on the similar fact evidence to support Mr. McIlwain's grievance;

x) counsel for the Union advised that Ms. Gauvin is no longer an employee of the Liquor Control Board of Ontario and that she resides outside of Canada. The Union does not know of her precise whereabouts and, as a consequence, Ms. Gauvin will not be called as a witness. Counsel indicated that Ms. Jean Chaykowski, another Grievance Officer with direct knowledge of the 1997 Labour Board Application, would be called to testify about same and not Mr. Saysell. Counsel submitted that if it was inappropriate to receive evidence through Ms. Chaykowski about the circumstances surrounding the application, I should, nevertheless, receive evidence to establish the fact that it was filed with the Ontario Labour Relations Board.

The Union relies on the award in Re Westfair Foods Ltd. and United Food and Commercial Workers, Local 832 (1992), 1992 CanLII 14643 (MB LA), 29 L.A.C. (4th) 222 (Steel) in support of its position that the similar fact evidence should be received and considered.

In reply, counsel for the Employer argued that the Union is, in effect, trying to expand the scope of the instant grievance with respect to both the nature of the complaint and the remedy claimed. Counsel emphasized that the grievance is an individual, rather than a policy, grievance and that, on its face, it requests relief which is personal to Mr. McIlwain. It was the gist of her submission that the grievance, as originally framed, does not justify resort to the similar fact evidence set out in the Agreed Information. Counsel maintained her objection with respect to the 1997 Labour Board Application. She argued that it is immaterial that Ms. Chaykowski may be called upon to testify about the application, rather than Mr. Saysell, as in her submission the evidence would still be hearsay. Lastly, counsel re-iterated that, even if the civil standard is used, the Union has failed to satisfy the test for admissibility as the admission of the evidence would be oppressive and unfair. Counsel referenced the following additional authorities: Ontario Liquor Board Employees' Union (Pound) and Liquor Control Board of Ontario, GSB No. 3278/92 (Briggs); Cammack v. Hill, Estate Trustee of the Estate of Elizabeth Martins (2002), 2002 CanLII 4733 (ON SC), 63 O.R. (3d) 47 (Ontario Superior Court of Justice).

The case of R.v.B. (C.R.) involved an accused who was convicted of sexual offences against his natural daughter. The issue on appeal to the Supreme Court of Canada was whether evidence of alleged prior acts of sexual misconduct by the accused with the daughter of his common law wife should have been admitted. In the course of concluding that the trial judge did not err in admitting the evidence, McLachlin J, (as she then was), made the following comment as to the admissibility of similar fact evidence:

" This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada. The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. As affirmed in Boardman and reiterated by this Court in Guay, Cloutier, Morris, Morin and D. (L.E.), evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception."

(pages 734-735)

McLachlin J. also observed "that the better practice in cases involving highly prejudicial similar fact evidence is for the judge to clearly indicate the issue to which the evidence is relevant" (page 738).

In the subsequent case of R. v. Handy, which related to a charge and conviction for sexual assault, Binnie J. in delivering the judgment of the Supreme Court of Canada stated that the "...B. (C.R.) test can thus be taken as stating the law in Canada" (page 405). He also commented as follows with respect to the approach to be taken to the admission of similar fact evidence:

"Similar fact evidence is thus presumptively in- admissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception."

(page 405)

In the process of determining that the trial judge erred in admitting similar fact evidence, Binnie J. listed the following factors to be considered in assessing the cogency of proffered similar fact evidence: (1) proximity in time of the similar acts; (2) the extent to which the other acts are similar in detail to the charged conduct; (3) the number of occurrences of the similar acts; (4) the circumstances surrounding or relating to the similar acts; (5) any distinctive feature(s) unifying the incidents; (6) intervening events; and (7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

The reasoning in R.v.B. (C.R.) was accepted and applied by Arbitrator M.K. Saltman in Re Canadian Pacific Hotel Corp. She summarized the state of the law, as follows:

"To summarize, evidence of similar acts is not admissible simply to prove that a person is of bad character or that, having engaged in misconduct on one occasion, is more likely to have engaged in misconduct on the occasion in question (often referred as a 'propensity' for engaging in such misconduct). However, similar fact evidence is admissible if its probative value outweighs its prejudicial effect. Probative value is generally measured by (1) the degree of distinctiveness between the evidence proposed to be introduced and the incident in question; and (2) the connection, if any, to a matter in issue other than propensity (which may, however, include the issue of credibility). With respect to the degree of distinctiveness, the cases are clear that a general similarity between events is not sufficient. Rather a striking similarity is required to qualify as similar fact evidence."

(page 44)

Arbitrator Saltman, ultimately, concluded that similar fact evidence, relating to the harassment of other employees by the supervisor, should not be received as "there was not a sufficient degree of 'distinctiveness or uniqueness'...to satisfy the requirement of similar fact evidence" (page 45).

In Re Windsor Board Of Education, the Federation wished to adduce evidence of specific instances of past sex discrimination to support its allegation of present discrimination. The Federation's request was rejected by a majority of the Board of Arbitration. The award of Arbitrator M.R. Gorsky on this point reads:

"We do not know how many cases of specific past acts of discrimination are intended to be gone into on behalf of the complainant. If we permit such evidence to be adduced, we may be involved in this case for many months. As I understand the position taken on behalf of the grievor, the evidence of past acts of discrimination, some of it referable to acts of previous boards, differently constituted or of acts of members of administration, past and present, will establish that"...a particular decision having the same result as earlier decisions also was motivated by discrimination" (Women Teachers' submission, at p. 4). Such a position is tantamount to a declaration that if one had a human disposition to behave in a particular fashion, then evidence of such disposition, based upon previous examples of its being manifested, ought to be admissible as evidence that such disposition was again manifested on a particular occasion. It is well established that"...evidence of human disposition to act in a certain manner is not admissible": see Sopinka and Lederman, The Law of Evidence in Civil Cases, at p. 23. In Phipson on Evidence it is stated at p. 204, para. 494:

...facts which are merely similar, however, and prove nothing more than disposition or likelihood of repetition, though logically relevant, are rejected as in criminal cases on grounds of fairness, since they tend to waste time (and) embarrass the inquiry with collateral issues...

Even if the evidence of alleged acts of past discrimination could be admitted as similar fact evidence to prove “a pattern of discriminatory decision-making from which an inference can be drawn that a particular decision having the same result as earlier decisions also was motivated by discrimination” then such inference could not be considered conclusive. This being the case, I would exercise my discretion and reject such evidence. See Phipson on Evidence, at p. 175, para. 442, where it is suggested that in such circumstances the similar fact evidence should be rejected.

I am also concerned that the evidence to be adduced with respect to the alleged past acts of discrimination would"...(require) a time-consuming inquiry of the same type as the matter in issue": see Sopinka and Lederman, The Law of Evidence in Civil Cases, at p. 16."

(page 439)

In Re Eurocan Pulp and Paper Co., which involved a grievance alleging harassment, the Union sought to lead evidence of past confrontations the supervisor had with other employees. Arbitrator H.A. Hope admitted the similar fact evidence subject to the Employer's objection and to an ultimate determination on the question of weight. He subsequently determined that the evidence did not amount to similar fact evidence of a course of conduct that could be viewed as harassment and, for that reason, found that it was irrelevant to the specific grievance being arbitrated. Arbitrator Hope appeared to accept that one (1) consideration in deciding whether to admit or reject similar fact evidence is whether its admission will result in considerable additional time, expense and delay. He commented as follows on a related point:

"Certainly a circumstance in which similar fact evidence requires a separate adjudicative determination with respect to the credibility of the evidence relied on would, at the least, raise a serious question of admissibility."

(page 108)

In Re Toronto Police Services Board, Arbitrator W.A. Marcotte rejected the Employer's argument that documentary evidence concerning the grievor's performance of his duties as a police officer ought to be admissible as similar fact evidence in support of an assertion that he was overly aggressive in dealing with a member of the public. He concluded that there was little probative value in the similar fact evidence in respect of the issue before him and that its introduction would significantly prejudice the grievor. It is of some interest to note that Arbitrator Marcotte addressed the differing treatment of similar fact evidence in civil, in contrast to criminal, cases. He cited the following excerpt from The Law Of Evidence in Canada, Sopinka and Lederman, page 577:

"Prejudice, which dominates the determination of admissibility of similar fact evidence in criminal cases, plays a significantly lesser role in civil cases, and evidence of similar facts should be admitted if it is logically probative of the issue in the case as long as, to borrow from the formula of Lord Denning, it is not unduly 'oppressive or unfair' to the other side."

(page 157)

I note that the distinction between civil and criminal cases was the subject of the following comment in Re Cammack:

"Usually in civil cases the potential prejudice value, being at a lower level, will mean the requisite probative value to offset it will be a lower level. The results of the weighing process may suggest that the rule is different in criminal cases and civil cases, but logic dictates that this is not so. The results simply demonstrate the sliding scale. The principle is the same. There are civil cases, such as the present one, where the proffered evidence suggests serious criminality. That potential prejudice raises the stakes, despite the fact that it is a civil case. To be accused of homicide, even in a civil case, is a very serious matter. The finding could have wide-ranging and stigmatizing implications. I conclude that the similar fact rule applies equally in criminal and civil actions".

(page 50)

In Re Westfair Foods Ltd., the grievance accused the Employer of ignoring a supervisor's abusive behaviour towards the grievor. The grievor sought an order compelling the Employer to require the supervisor to treat him in a professional manner. A second health and safety grievance asked that the Employer rectify the situation in the bakery department so that safe working conditions were maintained and improved for the grievor and all other employees in the department. The Union requested that it be permitted to introduce similar fact evidence indicating abusive behaviour on the part of the supervisor towards other employees. Arbitrator F.M. Steel granted this request over the objection of the Employer. The pertinent part of his reasoning is reflected in the following excerpt from the award:

".....................................................If the incident with respect to Cory Densley were seen as an isolated one, this board might very well conclude that the compliance order requested is wholly inappropriate. On the other hand, if the conduct and management's response to the conduct is seen as part of a general pattern, it might then be appropriate to grant the discretionary remedy sought. Additionally, if the evidence were not admitted, then it would be almost impossible for the union to prove a continuing course of conduct on the part of management in the administration of art. 12 or art. 13 of the collective agreement. At this stage, I take the view that the evidence is helpful to this board in determining a question relevant to the dispute, that question being whether the incidents were isolated or were indicative of a continuing pattern of conduct. Later I will consider whether the evidence compels a finding that there was in fact a breach of the collective agreement."

(page 228)

Before turning to an assessment of the evidence summarized in the Agreed Information, it is necessary to first address the authorities relating to the treatment of prior settlements.

In Re Hotel-Dieu Grace Hospital and Ontario Nurses' Association (Picher), the Board of Arbitration addressed a number of preliminary objections raised by the Employer as to the permissible scope of evidence. In that case, the Association sought to introduce evidence of events, which occurred in the six (6) year period prior to the filing of the grievance, for purposes of establishing a pattern of racial discrimination in the Hospital over a substantial number of years. The Association also wished to adduce evidence relating to another nurse, Ms. Pat Prima, whose grievance and human rights complaint alleging discrimination were settled. The Employer opposed both of the Association's requests. On the issue of relevance to this case, the Board decided against hearing any evidence concerning the complaints of Ms. Prima. The award reads as follows on this point:

".....We have similar concerns with respect to allowing evidence to be adduced with respect to the treatment of nurse Prima, to the extent that her human rights complaint was fully settled on a without prejudice basis. We must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement".

(pages 166-167)

-and-

".....Further, we do not consider it appropriate to admit evidence concerning the events which gave rise to the complaint of nurse Prima, to the extent that that matter, including a companion grievance filed by the Union, was resolved on a without prejudice basis........................................................................................."

(page 167)

In Dale et al., the Grievance Settlement Board addressed a total of six (6) grievances, one (1) dated July 3, 1998, another dated November 2, 2000 and four (4) other grievances filed in 2001. The issue before the Board related to the admissibility of evidence concerning seventeen (17) other grievances filed in 1996 which the parties later settled in March, 1999. The Union sought to rely on the facts and circumstances underlying these earlier grievances to support its allegation that the actions taken by the Employer in the cases before the Board were based on anti-union animus. The Employer, in response, objected to the introduction of such evidence on the basis that the matters had been fully and finally settled by the parties.

Vice-Chair R.H. Abramsky in Dale et al. accepted the position advanced by the Employer. In reaching her decision, she observed that the Grievance Settlement Board "has long recognized the critical importance of settlements and their enforcement" (page 8). The award reads as follows on this issue:

"Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. As the Board held in OPSEU (Pitirri) and Ministry of Correctional Services, supra at p.12: 'With respect to those (grievances) covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances that have been resolved by their terms will not reappear in some different guise'.............................................."

(page 8)

It is clear that Vice-Chair Abramsky also relied on the approach articulated in Re Hotel-Dieu Grace Hospital. In an effort to balance the competing interests, she concluded as follows:

"........................The events of 1996 occurred more than four years before the November 2000 grievance before me and the probative value of that evidence, given the passage of so many years, is relatively limited.

On the other hand, the prospect of opening this hearing to the 17 matters which arose in 1996 and were settled in 1999, after a lengthy hearing on those same issues, gives this Board "serious pause, both from an equitable and a procedural standpoint". Procedurally, it would very significantly lengthen the hearing. From an equitable standpoint, requiring the Employer, who believed that these 17 matters were fully and finally settled as of March 1999, to re-defend these matters at this late date would be inequitable and prejudicial. Considering the competing interests involved, the balance of interests favours not admitting the evidence concerning the 1996 settled grievances.

I also note that the Board in Hotel-Dieu Grace Hospital found it inappropriate to admit evidence concerning the events which gave rise to the complaint of another employee, "to the extent that that matter, including a companion grievance filed by the Union, was resolved on a without prejudice basis." (p.3). The Board stated that "(w)e must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement." (p.2). Although the settled matters in this case concern the grievors rather than another employee, the same concerns are present in this case."

(page 15)

I note that Vice-Chair Abramsky shared the concern expressed in Re Hotel-Dieu Grace Hospital that acceptance of the Union's position could involve her in making adverse findings against the Employer in respect of an issue or issues that had been previously settled.

In Re Toronto Transit Commission, the grievor was discharged for sexual harassment. The Union sought to introduce evidence relating to two (2) other employees disciplined in similar circumstances to show that the grievor was treated more harshly. One (1) of the employees was reinstated by a memorandum of settlement which provided that the settlement was entirely without prejudice to either party in any subsequent case. While the Union in the instant case does not seek to rely on the precise terms of prior settlements, the following excerpt from Re Toronto Transit Commission speaks to the sanctity attached to without prejudice settlements:

"The practice of having without prejudice settlements permits the parties to resolve particular situations without being concerned that the terms of the settlement will be used in subsequent cases as a form of precedent or that it will be used against either party in a detrimental way by the other. The use of the term "without prejudice" allows the parties to focus on a particular situation without fear that the settlement will have negative connotations in the future; it is a labour relations practice that should be encouraged because it promotes settlement. In this matter the union seeks to use the Virdo settlement to its advantage and to the disadvantage or prejudice of the commission. That is precisely what the phrase "without prejudice" was intended to guard against. That is the position suggested by the cases between these parties and, in our view, it is supported by both policy considerations and the actual language used. Accordingly, any evidence concerning the disposition of Mr. Virdo's grievance is inadmissible."

(page 88)

This reasoning was applied in the later Canadian Union Of Postal Workers (McConnell) award. In that case, the Union was not permitted to introduce into evidence three (3) Memoranda of Settlement reached in prior cases where discipline for theft had been imposed. The Arbitrator also determined that the Union was not entitled to call evidence concerning the circumstances and background of the three (3) cases. In his judgment, a contrary finding would have eroded the privilege attached to without prejudice settlements. The Arbitrator concluded as follows:

"In conclusion, I find that the Union is not permitted to introduce evidence by way of a Memorandum of Settlement negotiated on a 'without prejudice' basis nor can it call evidence describing the details of such settlement, the reason why it was made and surrounding circumstances, since this would constitute information so intricately connected to the grievance procedure and communications as to render this information privileged..............................."

(paragraph #32, emphasis mine)

To repeat, the issue in this case, against which the request to adduce similar fact evidence must be assessed, is whether Mr. Poulin arranged for the grievor's transfer to Store #202 in retaliation for the latter's refusal to abandon his complaint and for his ultimate filing of the grievance concerning entitlement to a paid rest period. I have reviewed the statement of Agreed Information, in the context of the applicable jurisprudence, and conclude, as follows:

i) the incident involving Ms. Gauvin is not strikingly similar to the circumstances surrounding Mr. McIlwain's grievance. The allegation, in her case, is that Mr. Poulin offered to delay a posting for her ultimate benefit, if she agreed to withdraw a grievance. Additionally, it is alleged that he made untrue statements to her as to why her grievance did not proceed in February, 1997. Neither allegation relates to a retaliatory transfer. Further, there is a period of approximately five (5) years between Mr. Poulin's involvement in the earlier grievance and the events material to this dispute. I am inclined to think, as did Vice-Chair Abramsky in Dale et al., that the probative value of the evidence would likely be relatively limited given the passing of so many years. Similarly, I accept that the Employer would be prejudiced by now having to deal with the circumstances surrounding Ms. Gauvin's case given its belief the matter was finally settled in 1997. In this regard, I consider it significant that the Employer did not file a response to the 1997 Labour Board Application;

ii) the allegations relating to Mr. Poulin's relationship with Mr. Bechard are not strikingly similar to the circumstances surrounding Mr. McIlwain's grievance. The allegations do not reference a retaliatory transfer of the type here in issue;

iii) I accept that a substantially similar grievance was filed by Ms. Welzel in December, 2002. In her case, however, it seems as if she initiated a request for transfer, not Mr. Poulin. He is alleged to have told Ms. Welzel that a transfer would be possible, if she made her grievance go away. It is also alleged that she was punished by being scheduled fewer hours in the Amherstburg Store. These circumstances are not strikingly similar to those alleged in this instance. More specifically, Ms. Welzel was not the subject of a retaliatory transfer;

iv) the allegations concerning Ms. Gauld are also not strikingly similar to what the Union asserts occurred in this case. The Union claims that Ms. Gauld was returned to her home Store from an Acting Manager's position for failure to advise another employee his grievance was without merit. The Union further asserts that in December 2001, Ms. Gauld was advised by her Store Manager that Mr. Poulin was considering her transfer to the Leamington Store from Essex. There is no information indicating that this transfer, in fact, occurred. Simply put, the circumstances are not, in my judgment, strikingly similar to the grievance now before me;

v) the information supplied concerning Mr. Jeremschuk does appear to be strikingly similar to the circumstances alleged in the present grievance. It alleges that Mr. Poulin communicated a threat through the Store Manager that Mr. Jeremschuk would be transferred if he continued to file grievances on behalf of bargaining unit employees. It further alleges that Mr. Jeremschuk was transferred out of Store #32 to the Windsor Depot approximately two (2) weeks later. Mr. Jeremschuk's grievance concerning the transfer was withdrawn pursuant to Minutes Of Settlement which were stated to be full and final and without prejudice or precedent. The effect of this settlement reached between the parties is addressed below;

vi) the allegations concerning Mr. Furey are not strikingly similar to the Union's account of the facts in this case. The Agreed Information asserts that Mr. Furey was advised by Mr. Poulin that a transfer, agreed to as part of a settlement, would be withheld if he did not withdraw two (2) other grievances. There is no allegation of a retaliatory transfer. Mr. Furey's grievance was also withdrawn by Minutes of Settlement which were stated to be full and final and without prejudice or precedent;

vii) the information supplied concerning Mr. Chrysler does appear to be somewhat similar to what is alleged here. The Agreed Information indicates the Union's evidence would be that Mr. Chrysler was advised on January 5, 2004 that he would be transferred out of the Blenheim Store effective January 19, 2004. This followed the filing of the Union's Labour Board Application on December 29, 2003 and, on the Union's account, a history of harassment, intimidation and threats on the part of Mr. Poulin. Mr. Chrysler's grievance of January 13, 2004 was resolved by Minutes of Settlement dated February 26, 2004. The Minutes of Settlement rescinded the transfer. Like the other settlements mentioned above, the terms were stated to be full and final and without prejudice or precedent. The effect of this settlement is also addressed below;

viii) it is clear from a review of the Agreed Information that the allegations concerning Mr. Mitchell, Mr. Sussex and Mr. Nenez do not reference any transfer and, for that reason, cannot be considered as strikingly similar to the allegations in this dispute.

For the reasons set out above, I find that the allegations concerning Mr. Poulin's treatment of Ms. Gauvin, Mr. Bechard, Ms. Welzel, Ms. Gauld, Mr. Furey, Mr. Mitchell, Mr. Sussex and Mr. Nenez are not strikingly similar to the Union's assertions in this case. For that reason, I conclude that evidence pertaining to these eight (8) employees, relating to what is alleged in the Agreed Information, cannot be adduced as similar fact evidence. The aforementioned allegations speak primarily to disposition on the part of Mr. Poulin, and in the absence of a high degree of similarity vis a vis the events here in issue, must be excluded. I have not been persuaded that the evidence is admissible under either the criminal or civil law tests. Put another way, I am satisfied that any probative value is outweighed by prejudicial effect. On my reading, the award in Re Westfair Foods Ltd., relied on by the Union, is distinguishable. It is apparent that the decision to receive similar fact evidence in that case was premised on the nature of the two (2) grievances and on the Arbitrator's conclusion that, without resort to the evidence, the Union would not be able to establish an allegation material to the resolution of the real dispute between the parties.

After fully considering the submissions of both parties, I conclude that the Union should be precluded from presenting evidence about the facts and circumstances underlying the grievances of Mr. Jeremschuk and Mr. Chrysler, notwithstanding the degree of similarity alleged between their situations and the treatment received by Mr. McIlwain. I reach this conclusion because of the fact that the Jeremschuk and Chrysler grievances were resolved by Minutes of Settlement which intended to provide for a full and final, and without prejudice or precedent, resolve to the complaints. I share the concerns expressed in Re Hotel-Dieu Grace Hospital and Dale et al. with respect to the consequences which could potentially follow from a decision to admit the contested evidence. More specifically, this Vice-Chair could be called upon to make adverse findings against the Employer in respect of Mr. Poulin's treatment of Mr. Jeremschuk and Mr. Chrysler when these very issues have been the subject of a mutual settlement. I, too, am reluctant to proceed down that road, as I believe that it could serve to undermine the parties' confidence in final settlements and their legitimate expectation that settled matters will not reappear in some different guise. This reasoning would also apply to evidence about the 1997 Labour Board Application and the Furey grievance.

As previously mentioned, this proceeding arises from a personal grievance of Mr. McIlwain in which he asserts that he was transferred between Stores in October 2002 because he insisted on proceeding with a grievance relating to entitlement to a paid rest period. As noted, to date there have been six (6) days of hearings on the merits of the grievance. Numerous other days have been scheduled for the resumption of the hearing following the release of this award. Given the evidence I have already heard, and that which I anticipate will later be presented, I think it very likely that there will be ample evidence available to permit me to resolve the threshold question as to the legal and contractual propriety of the transfer. I am concerned that the introduction of the similar fact evidence would substantially lengthen this proceeding. This is especially so given that I would likely be called upon to hear a large amount of evidence concerning the prior allegations and then to make numerous findings of credibility. Ultimately, I am satisfied that it is unnecessary, for purposes of resolving this dispute, to receive evidence about an ongoing pattern of alleged misconduct on the part of Mr. Poulin. That evidence, in my judgment, is best left for proceedings before the Ontario Labour Relations Board on the 2003 Application. I note that the jurisprudence of that Board indicates that while no remedy may be sought for unfair labour practice matters that have been settled or withdrawn, evidence about them is admissible for the limited purpose of establishing a pattern of unlawful activity: see Craftline Industries Limited, (1977) OLRB Rep. April 246; Comstock Funeral Home Ltd., (1981) OLRB Rep. Dec. 1755. I have not been persuaded that the Union's request in this instance constitutes an abuse of process, as claimed by the Employer. The award in Re London Public Library Board does not support that submission. In that case, a grievance was filed about a matter which was already the subject of an Ontario Labour Relations Board application. The Arbitration Board found that it had concurrent jurisdiction but opted, on the balance of convenience, to adjourn its proceeding pending a decision by the Ontario Labour Relations Board on the matter.

PATENT OR LATENT AMBIGUITY

Article 31.1(d)(i) of the collective agreement, which provides for a rest period for casual employees, reads:

There shall be one (1) fifteen (15) minute rest period for each four (4) consecutive hours of work.

The parties differ on two (2) aspects of this provision. First, the Union asserts that the rest period is a paid rest period. The Employer insists that it is an unpaid break. Second, the Union claims that a casual employee is entitled to the rest period within each four (4) consecutive hours of work. In contrast, the Employer maintains that an employee is only entitled to the break after they have actually worked the four (4) hours.

The other provisions of the collective agreement relevant to this issue read:

6.13 There shall be one (1) fifteen (15) minute rest period during each half (1/2) shift or each half (1/2) work day. Such rest period shall be at times designated by the Store Manager or Department Head (except with respect to rest periods referred to in Article 6.2).

31.(d)(ii) In addition a casual employee who is scheduled for a period in excess of five (5) hours shall receive one-half (1/2) hour off without pay for a meal period. Such meal period shall be scheduled in such a way that no employee works longer than five (5) hours without a meal period.

37.7(a) There shall be one (1) fifteen (15) minute paid rest period during each four (4) consecutive hours of work.

Article 6.13 is applicable to permanent full-time employees. Article 37.7(a) applies to permanent part-time employees. Reference was also made in argument to article 6.2 of the collective agreement which, inter alia, sets out the number of hours in each working day in respect of the retail division and to the Salary And Classification Schedule (page 132) which states the hours of work for Customer Service Representatives as forty (40) hours per week.

The Union's primary position is that article 31.1(d)(i) clearly and unambiguously provides that casual employees, such as the grievor, are entitled to a fifteen (15) minute paid rest period for each four (4) consecutive hours of work. In the alternative, the Union seeks to introduce extrinsic evidence relating to past practice to clarify a patent ambiguity in the language of the provision and to assist with its interpretation. In the further alternative, the Union asks that the extrinsic evidence be admitted to disclose a latent ambiguity.

The extrinsic evidence that the Union seeks to present may be summarized as follows:

i) since 1987, the Employer's scheduling practice has been to provide casual employees with a fifteen (15) minute rest period for each four (4) consecutive hours of work and, more specifically, that a four (4) hour shift for casual employees has included a fifteen (15)minute rest period;

ii) the above-mentioned rest period has been a paid rest period;

iii) throughout this period, the collective agreement language relating to a fifteen (15) minute rest period for casual employees has not changed;

iv) counsel for the Union advised that she will call witnesses to testify about the way they have been scheduled in respect of the fifteen (15) minute rest period. She further advised that she intends to call other witnesses, who have the responsibility for scheduling staff, to testify about the manner in which they have scheduled casual employees and the directions they received from management in that regard. Additionally, certain of the Union's Grievances Officers will be called to provide their knowledge on this issue; and

iv) the Union will rely on a memo dated January 13, 2003 sent by Mr. Myron Tymochko, the District Manager of District #12, to all Store Managers in the District. I have appended the memo to this award. The memo outlines how breaks and lunches should be scheduled for casual employees. On the Union's reading, the memo, prepared by a member of management, is consistent with its understanding to the effect that a four (4) hour casual shift should include a fifteen (15) minute paid rest period.

The Union asks me to receive the extrinsic evidence and to reserve judgment on the issues of ambiguity, admissibility and application. Counsel for the Union suggested that if I ultimately find the relevant contractual provision to be clear and unambiguous, I can then rule that the extrinsic evidence cannot be resorted to in aid of interpretation. She argued that I possess the authority to receive the evidence pursuant to section 48(12)(f) of the Labour Relations Act, 1995, previously referenced.

Counsel for the Union submitted that article 31.1(d)(i) is patently ambiguous with respect to the length of shift required to qualify for the rest period, whether the rest period is paid or unpaid, or both. Counsel noted the competing interpretations of article 31.1(d)(i) vis a vis entitlement to a rest period; that is, is a casual employee entitled to the rest period within a four (4) hour shift or is the employee only entitled to same after he or she has actually worked the four (4) hours. She argued, in substance, that this uncertainty reflects a patent ambiguity. With respect to the issue of payment, counsel observed that article 31.1(d)(i) does not expressly state whether the rest period is paid or not. She compared the article to the following provisions: (i) article 31.1(d)(ii) which specifically provides for an unpaid meal break for a casual employee who works in excess of five (5) hours; (ii) article 37.7(a) which specifically provides for a fifteen (15) minute paid rest period for permanent part-time employees; and

(iii) article 6.13 which does not expressly state whether the fifteen (15) minute rest period for full-time employees is paid or unpaid. Counsel emphasized that the article 6.13 rest period is treated by the Employer as a paid break, despite the silence of the collective agreement on the point. It was the thrust of her submission that a comparison of the above articles demonstrates the existence of a patent ambiguity with respect to whether the rest period should be paid or unpaid. I was, accordingly, invited to receive the extrinsic evidence to clarify the patent ambiguities existing within the article.

In the alternative, counsel for the Union submitted that article 31.1(d)(i) is latently ambiguous with respect to the length of shift required to qualify for the rest period, whether the rest period is paid or unpaid, or both. Counsel argued that if I accept the Employer's position on the issue of patent ambiguity, then I should permit the Union to lead the extrinsic evidence to both disclose and resolve a latent ambiguity. She asserted that the past practice evidence will disclose that the collective agreement provision in issue is not as clear as it might otherwise appear.

The Union relies on the following authorities in support of its position: Re Inn of the Woods and United Food and Commercial Workers, Local 175 (1989), 1989 CanLII 9256 (ON LA), 7 L.A.C. (4th) 31 (Aggarwal); Regina v. Barber et al., Exparte Warehousemen and Miscellaneous Drivers' Union Local 419, (1968) 1968 CanLII 446 (ON CA), 2 O.R. 245 (Ont C.A.); Re Sudbury Mine, Mill and Smelter Workers, Local 598, And Falconbridge Nickel Mines Ltd. (1968), 1968 CanLII 1206 (ON LA), 19 L.A.C. 210 (Weiler); Re Cummins Diesel Power Ltd. And International Association Of Machinists And Aerospace Workers, Local Lodge 1722 (1978), 1978 CanLII 1499 (ON HCJ), 19 L.A.C. (2d) 432 (Mason); Re Noranda Metal Industries Ltd., Fergus Division and International Brotherhood of Electrical Workers, Local 2345 et al. (1983), 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529 (Ont. C.A.); Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. (Incorporated) et al., (1969) 1968 CanLII 405 (ON HCJ), 1 O.R. 469 (Ont. H.C.J.); Ontario Liquor Boards Employees' Union (Pallotta) and Liquor Control Board of Ontario, GSB No. 1185/00 (Dissanayake).

In response, it is the position of the Employer that article 31.1(d)(i) is neither patently or latently ambiguous and that extrinsic evidence should not, therefore, be received in aid of interpretation. Counsel for the Employer noted that the jurisprudence imposes an onus on the Union, in a case such as this, to establish the existence of a patent or latent ambiguity as a condition for the proper admission of extrinsic evidence. Counsel acknowledged that this Vice-Chair has the discretion to hear the past practice evidence and to reserve on the question of its ultimate admissibility. She asked, however, that I not opt for such an approach in this case. Counsel noted that the Union intends to call evidence, which is likely to be extensive, with respect to the practice across the Province, for days other than Sundays and for Stores which are not 'D' Stores. She suggested that much of this evidence is outside of the factual context of the present dispute and that, if received, could lead to many more days of hearings. Counsel argued that, in the circumstances, it would be preferable to first make a determination on the threshold question of whether an ambiguity exists in the language found in article 31.1(d)(i) before receiving any of the evidence offered by the Union.

Counsel for the Employer submitted that the language of article 31.1(d)(i) is clear and unambiguous with respect to whether the rest period is paid or unpaid and as to when the entitlement thereunder becomes effective. Counsel contrasted the article with article 37.7(a) relating to permanent part-time employees. Under the latter provision, part-time employees are expressly given a fifteen (15) minute paid rest period. She argued that the absence of the word "paid" in article 31.1(d)(i) indicates the parties intended for the break to be unpaid. Counsel also noted that article 37.7(a) provides for the paid rest period "during" each four (4) consecutive hours of work. In her submission, the use of the word "during", rather than "for" as found in article 31.1(d)(i), demonstrates that the parties contemplated a different result, this being, that casual employees are not entitled to a rest period until after they have worked four (4) consecutive hours. Counsel observed that article 6.13 also references the word "during" with respect to when the rest period is to occur. She further submitted that the Union's reliance on article 6.13, to show a patent ambiguity in article 31.1(d)(i), is misplaced. On her reading, article 6.2 in conjunction with the Salary and Classification Schedule effectively guarantee full-time Customer Service Representatives forty (40) hours of work each week. In counsel's judgment, it is immaterial that article 6.13 does not reference paid rest periods because any breaks occurring during the forty (40) hour week must be paid for under the collective agreement. In substance, it is the position of the Employer that the Union cannot rely on the language relating to either full-time or permanent part-time employees to successfully establish an ambiguity in article 31.1(d)(i) of the collective agreement.

It is the further position of the Employer that resort to extrinsic evidence will not reveal any latent ambiguity, as there is no ambiguity to reveal. Counsel for the Employer submitted that the Union has failed to identify the latent ambiguity or how the extrinsic evidence will assist in disclosing same. She asserted that, in cases of this nature, it is insufficient to simply allege the presence of a latent ambiguity. Lastly, counsel maintained that the Tymochko memo is of no assistance in establishing any sort of ambiguity. She emphasized that the memo does not indicate if the rest period falls within the four (4) hour shift or not.

The Employer relies on the following authorities with respect to this aspect of its case: Ontario Liquor Boards Employees' Union (Pallotta) and Liquor Control Board of Ontario, previously cited; Re Government of the Province of Alberta and Alberta Union of Provincial Employees (2000), 2000 CanLII 50253 (AB GAA), 90 L.A.C. (4th) 381 (Price); Regina v. Barber et al., previously cited; Re Noranda Metal Industries Ltd., previously cited; Re International Association Of Machinists, Local 1740, And John Bertram And Sons Co. Ltd. (1967), 1967 CanLII 1039 (ON LA), 18 L.A.C. 362 (Weiler); Re United Steelworkers Of America, Local 1005 And Steel Co. Of Canada Ltd. et al. (1978), 1978 CanLII 1633 (ON HCJ), 87 D.L.R. (3d) 274 (Ont. H.C.J.); Re Abbott Laboratories, Ltd. and Retail, Wholesale Canada, Division of Canadian Auto Workers, Local 462 (2001), 2001 CanLII 62140 (ON LA), 98 L.A.C. (4th) 302 (Thorne); Re Cargill Ltd. And United Food And Commercial Workers, Local 1118 (1996), 1996 CanLII 20298 (AB GAA), 54 L.A.C. (4th) 76 (Koshman); Re Excel Forest Products Ltd. and I.W.A.-Canada, Local 2995 (2001), 2001 CanLII 62072 (ON LA), 100 L.A.C. (4th) 16 (Sarra).

The following excerpt from Canadian Labour Arbitration (3rd.ed.), Brown and Beatty, highlights the different approaches arbitrators have taken relating to the admission of extrinsic evidence:

"Arbitrators differ as to the proper procedure to be followed where extrinsic evidence is tendered to assist in the resolution of an alleged ambiguity. Many have concluded that extrinsic evidence should be received and that the ruling as to admissibility should be reserved, or that the evidence should be received and the board of arbitration reserve to itself the right to determine which, if any, of the extrinsic evidence would be used to assist in the interpretation of the sections in dispute. This is particularly true where the alleged ambiguity is latent, and extrinsic evidence is tendered to disclose as well as to resolve it. Other arbitrators, however, have refused to hear the extrinsic evidence until they have decided whether there is an ambiguity. And a middle course consists of hearing the evidence until it becomes clear that it is appropriate to rule on the question of ambiguity."

(paragraph 3:4410)

The question of how to properly address a request to present extrinsic evidence was also the subject of comment in Re Inn of the Woods. The relevant part of that award reads:

"As a general principle, in construing a collective agreement, the arbitrator is restricted to the agreement itself and cannot resort to extrinsic evidence to assist in this task unless the agreement is ambiguous ................................................. ........................................................... A determination, then, that a passage is ambiguous is a prerequisite to the use of extrinsic evidence to ascertain the intended meaning. However, to determine when ambiguities exist is not an easy one. At the same time, the parties often object to the introduction of extrinsic evidence until the arbitrators determine that an ambiguity exists. As this is not an easy determination and as to accede to this request might cause an adjournment of the hearing to another day, it is obvious that an arbitrator cannot decide whether the language of the agreement is unambiguous in its meaning unless he/she also decides on what is the correct meaning. To hear argument and to decide this matter of law and interpretation, before reception of evidence that is arguably relevant, would be a very inefficient mode of conducting arbitration hearings. Moreover, the Ontario Court of Appeal in R. v. Barber, supra, had required only that extrinsic evidence not be used in interpreting contract language until the latter has been found ambiguous. It does not require that, as a matter of practice, the evidence not be admitted until after the interpretation decision has been made. Thus, the arbitrators, generally, receive extrinsic evidence and reserve judgment on the issue of ambiguity."

(page 37)

The approach described in the above excerpt was applied in Re Sudbury Mine, Mill and Smelter Workers and in Re Cummins Diesel Power Ltd. In both cases, extrinsic evidence was received and the Board of Arbitration reserved judgment on the questions of ambiguity, admissibility and application.

A somewhat different approach was employed in Pallota, a dispute between these same parties. In that instance, the grievor claimed entitlement to shift premium for certain of the hours he worked as a Customer Service Representative on Civic Holiday, 2000. The Employer sought to rely on extrinsic evidence to establish a patent and/or latent ambiguity in the collective agreement. It also sought to use such evidence to create an estoppel against the Union. After determining that there was no patent ambiguity in the shift premium provision of the collective agreement, Vice-Chair N.V. Dissanayake directed the Employer to provide detailed particulars to the Union of all of the facts it proposed to establish through extrinsic evidence, relating to past practice and/or negotiating history, to disclose a latent ambiguity and/or to establish an estoppel. Vice-Chair Dissanayake's reasons for giving this direction are set out in the award, dated August 17, 2001, as follows:

"In the present case, it is the employer's position that extrinsic evidence will disclose a latent ambiguity and/or establish an estoppel against the union. The union's objection to receiving that evidence is primarily on the ground that it will result in a protracted multi-day hearing. The Board must be fair and sensitive to the concerns of both parties. On the one hand, the employer is offering extrinsic evidence, which it claims will have the result of establishing or creating a latent ambiguity and/or estoppel. It is not fair to determine whether the result existed, without first hearing the evidence which allegedly leads to that result. On the other hand, the union's concerns are also valid. The Board ought not launch a potentially protracted hearing without satisfying itself first that there is good reason for doing so. The employer has not specified what extrinsic evidence it is proposing to lead and how that evidence creates or discloses a latent ambiguity or an estoppel. Merely because the employer "raises" a latent ambiguity and/or "an estoppel" that is not by itself justification for hearing potentially lengthy evidence. The Board must be satisfied that there is some cogent evidence, which if established, has the potential of establishing a latent ambiguity and/or an estoppel..................................................."

(page 7)

Vice-Chair Dissanayake subsequently received submissions, based on the particulars, as to whether any of the extrinsic evidence should be received. In an award dated March 21, 2002, he determined that the evidence, if proved, did not have the potential for establishing an estoppel or disclosing a latent ambiguity and should, therefore, not be received.

The first award in Pallotta distinguishes between a patent and latent ambiguity and sets out how extrinsic evidence may be used in respect of the latter. The award reads as follows on these points:

"Patent ambiguity is ambiguity on the face of the language of the document to be interpreted. Therefore, by its very nature, one can decide whether or not a patent ambiguity exists by examining the document itself ................

........................... A latent ambiguity is an ambiguity, not on the face of the document, but in its application to a particular set of facts............................................

It is now well established that an arbitrator may admit extrinsic evidence to disclose as well as resolve a latent ambiguity in a collective agreement. See R v. Barber, (1968) 1968 CanLII 446 (ON CA), 2 O.R. 245 (Ont. C.A.) And Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. (Incorporated), (1969) 1968 CanLII 405 (ON HCJ), 1 O.R. 469 (Ont. H.C.J.)."

(pages 5 to 6)

I note the following similar comment of Gale C.J.O. in Leitch Gold Mines Ltd. with respect to the use of extrinsic evidence vis a vis a latent ambiguity:

"Extrinsic evidence may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and also to resolve it, but it is to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it. Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties."

(page 524)

As stated above, in the second Pallotta award, Vice-Chair Dissanayake determined that the extrinsic evidence, if admitted and proved, would not reveal the existence of a latent ambiguity. He made the following observation concerning this aspect of the dispute:

"In order to establish a latent ambiguity, there must be evidence that the parties had a mutual understanding of the employer's obligation, which was different to the obligation conveyed on the face of the document. In contrast, the particulars, if proven, would lead to the conclusion that the union and the employer continuously had opposing views as to the obligation under the relevant provision. The particulars do not disclose that at any point the union agreed that the employer's practice was in compliance with the collective agreement."

(page 5)

After considering the submissions of the parties on this issue, I have decided to receive the extrinsic evidence and to reserve on the question whether an ambiguity, either patent and/or latent, exists so as to justify resort to such evidence as an aid to interpret article 31.1(d)(i). A real question exists as to what the parties intended by the use of the word "for" in the phrase "for each four (4) consecutive hours of work". Did they mean it should be read as the equivalent of the word "during", as found in articles 6.13 and 37.7(a) of the collective agreement, or instead did they intend that entitlement would only occur "after" a casual employee worked four (4) consecutive hours. A further question arises as to how the provision would be applied in practice if the latter reading was intended. More importantly, while article 31.1(d)(i) is silent on its face concerning payment, the summary of past practice evidence provided by the Union alleges that since 1987, the Employer's practice has been to provide casual employees with a paid fifteen (15) minute rest period within a four (4) hour shift. I was informed that the relevant collective agreement language has not changed for a considerable period of time. Additionally, in some respects, the Tymochko memo of January 13, 2003, is consistent with the Union's view of employee rights under article 31.1(d)(i). It is therefore arguable that, at least in respect of payment, the situation here is distinguishable from Pallotta as the parties may have had "a mutual understanding of the employer's obligation which was different to the obligation conveyed on the face of the document". As a consequence, I think it both fair and appropriate to permit the Union to lead extrinsic evidence for purposes of disclosing and resolving the ambiguities alleged. I receive this evidence pursuant to the discretion provided for by section 48(12)(f) of the Labour Relations Act, 1995. To be clear, in line with the authorities, if such evidence does not reveal any ambiguity then it cannot be used to construe article 31.1(d)(i) of the collective agreement. I do share the Employer's concern that this ruling could substantially protract an already lengthy proceeding. The Union is encouraged, to the extent it is feasible, to expedite its presentation of the extrinsic evidence.

ESTOPPEL

It is the further position of the Union that the past practice, as summarized above, estops the Employer from now changing its practice in respect of the administration of article 31.1(d)(i) of the collective agreement. Counsel for the Union advised that the extrinsic evidence she wishes to present will show the Union relied on the Employer's practice over the course of several collective agreements and that, on the basis of this lengthy and consistent practice, the Union did not consider it necessary to address the issue at the bargaining table. From the perspective of the Union, the extrinsic evidence will also demonstrate its belief that there was a shared interpretation of article 31.1(d)(i). Counsel submitted that the evidence relating to past practice is cogent and, if proven, has the potential to form the basis for an estoppel against the Employer. She claimed that it would be improper to exclude this evidence given its relevancy to the issue in dispute.

The Union relies on the following additional awards in support of its position: Re John Bertram And Sons Co. Ltd., previously cited; Re Corporation of the City of Ottawa and Ottawa Carleton Public Employees' Union, C.U.P.E. Local 503 (2001), 2001 CanLII 61979 (ON LA), 102 L.A.C. (4th) 160 (Hornung).

In response, it is the substance of the Employer's position that the extrinsic evidence which the Union seeks to present does not have the potential to create an estoppel against the Employer. Counsel for the Employer stressed the following: (i) the Union has not specified what scheduling practices of the Employer it relied on; (ii) the Union has not produced any evidence of a representation or of any discussion between the parties on the issue of rest periods; (iii) the Union has not produced any evidence that the Employer agreed or disagreed with its position or that the Employer would refrain from taking a contrary position; and (iv) the Union has not produced any evidence about silence at the bargaining table concerning a practice that may be inconsistent with the collective agreement. Simply put, I was asked to find that, as was the case in Pallotta, there is no reference in the summary of extrinsic evidence to an explicit or implicit representation sufficient to ground an estoppel against the Employer and that, as a consequence, such evidence should not be received from the Union.

The Employer relies on Re Labatt's Ontario Breweries And International Union of Operating Engineers, Local 772 (1983), 1983 CanLII 4827 (ON LA), 10 L.A.C. (3d) 29 (Weatherill). In that award, a majority of the Board of Arbitration concluded:

"....Further, we do not consider that there has been the sort of detrimental reliance on which an estoppel could properly be based. To assume, as some arbitrators have been prepared to do, that the 'loss of opportunity to negotiate' constitutes detrimental reliance is, in our view, an attempt to sound the unfathomable. Certainly, in this case, the evidence does not permit the conclusion that the company was somehow induced by the union to forswear the 'opportunity' it undoubtedly had to raise this or other issues in negotiations."

In this instance, the Union asserts that there is a long standing and consistent practice under which casual employees working a four (4) hour shift receive a paid rest period. As a consequence of this past practice, counsel for the Union argued that the Employer cannot now take a contrary position with respect to Mr. McIlwain's entitlement when working the Sunday shifts here in issue. In my judgment, given the Union's description of the past practice, it should be permitted to lead evidence with respect to same in support of an argument that the Employer should be estopped from changing its treatment of the rest period provided under article 31.1(d)(i). In this regard, I have reviewed section 2: 2221 of Canadian Labour Arbitration (3rd.ed), Brown and Beatty. The third paragraph of the section lists a myriad of cases in which an estoppel has been founded on a past practice. It is premature, at this juncture, to reach any conclusions as to the ultimate merit of the Union's position. I am, nevertheless, satisfied that there is some cogent evidence relating to past practice which, if proven, has the potential of establishing an estoppel. Accordingly, I elect to receive the extrinsic evidence as it relates to this issue.

In summary, and for all of the above reasons, the Union is not permitted to present the similar fact evidence outlined in the statement of Agreed Information. The Union is, however, permitted to adduce evidence in support of its argument that article 31.1(d)(i) of the collective agreement is patently or latently ambiguous and that the circumstances support a finding of estoppel against the Employer.

Dated at Toronto, Ontario this 31st day of January, 2005.