GSB# 2001-0534, 2003-2944

UNION# 2001-0551-0001, 2003-0999-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hunt et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Meredith Brown and Kelly Burke Counsel Ministry of Government Services

HEARING

July 10, 2003; January 14, March 1 & 10, May 3, June 11 & 21, July 22, August 24 & 25, September 28 & 29, October 27, December 17, 2004; March 8 & 11, April 15, May 6 & 31, 2005; January 10, February 13, March 3, May 9, 16, 17 & 18, 2006.

Decision

On May 4, 2001, a group grievance was filed by three classified Court Reporters, alleging that they “have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to …the collective agreement. On August 20, 2003, the Union filed a policy grievance, alleging that “[t]he work associated with the preparation and production of transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies.” In both grievances, the central issue is whether or not the preparation of transcripts is bargaining unit work.

The hearing in this matter spanned 24 days and a number of preliminary decisions have been issued. All earlier findings of fact and conclusions, as applicable, are incorporated into this Decision.

Facts

By statute, the Attorney General “shall superintend all matters connected with the administration of the courts, other than matters that are assigned by law to the judiciary.” Courts of Justice Act, R.S.O.1990, c. C.43, Section 71. Similarly, under the Ministry of the Attorney General Act, the Attorney General “shall superintend all matters connected with the administration of justice in Ontario.” R.S.O. 1990, c. M.17, Section 5(c).

To accomplish these tasks, the Ministry of the Attorney General Act provides that “[s]uch employees may be appointed under the Public Service Act as are required from time to time for the proper conduct of the business of the Ministry.” R.S.O. 1990, c. M. 17, Section 4. A similar provision exists under the Courts of Justice Act. R.S.O. 1990, c. C.43, Section 77(1).

Two of the functions necessary to the administration of the courts and the administration of justice in Ontario are the “taking of the record” and the preparation of transcripts, when requested by the judiciary, the Crown or the defense bar. A transcript is the official written record of a court proceeding. It provides a written record of the proceedings at trial and forms the basis of most appeals. Transcripts are typed from recordings created during the proceedings. The process of recording the proceedings is often referred to as “taking the record.” The process of typing the recorded court proceedings is referred to as “the preparation of the transcript.”

To perform these functions, the Ministry hires Court Reporters. There are approximately 400 Court Reporters employed by the Ministry. There are several types of Court Reporters employed, and the mix has changed over time. At present, the vast majority (approximately 80%) are Court Monitors. A Court Monitor uses an open microphone audio recording device to record the proceedings in court, supplemented by a comprehensive logbook. A stenographer uses shorthand or a stenotype machine to record the proceedings. A stenomask reporter uses a microphone embedded in a stenomask to record their voice as they dictate what is said during the proceedings, supplemented by a comprehensive logbook. Transcripts may also be created by a process known as Computer Aided Transcription (C.A.T.). With CAT reporting, a reporter, using a computer with special software, produces an instantaneous rough draft of the transcript by digitally recording and translating phonetic symbols entered by the reporter. Afterwards, the rough drafts are reviewed for accuracy and proper formatting to create an official transcript. There are only 15 to 20 C.A.T. reporters out of approximately 400 Court Reporters in the province. For the purposes of this decision, all of the different types of court reporting will be generically referred to as “Court Reporters.”

There are both classified and unclassified Court Reporters in the Ministry. All are employees included in the bargaining unit represented by OPSEU. The classified employees work daily from 8:30 a.m. to 4:30 p.m. The unclassified employees work on an “on-call, as required” basis. There are also agency court reporters used by the Ministry.

Although every court proceeding is recorded, not all recorded proceedings are transcribed. In fact, the majority of trials do not involve a transcript. Mr. Mike Uhlmann, now Project Director- Revitalized Workforce Project, with the Court Services Division, estimated that only about 10% of court proceedings are transcribed. Transcripts are produced when there is a request for a transcript – from the judiciary, the Crown Attorney, defense counsel or a member of the public. Some proceedings, however, automatically require a transcript, such as mental disorder disposition hearings, incarceration in a federal penitentiary hearing; dangerous offender hearings, reviews of parole eligibility, and several others. Further, transcripts are required for appeals.

All of the witnesses, including Ministry witnesses, identified two key functions performed by a Court Reporter – taking a verbatim record of the proceedings in court and preparing the transcript on request. Court Reporters are hired by the Ministry to perform both functions. The current position description for Court Reporter, dated January 4, 1994, states that 95% of the duties of a Court Reporter are as follows:

Performs Court Reporter services by:

• recording verbatim by shorthand, stenotype or stenomask the proceedings of the Ontario Court (General Division), Special Examinations and Chambers Motions, including testimony of witnesses, address to the jury, Judge’s instructions and all matters pertinent to the record;

• reading back in court, at the direction of the Judge, proceedings previously recorded;

• providing transcripts of court proceedings on request; certifying the accuracy of transcripts as Court Reporter (NOTE: Transcripts normally prepared on incumbent’s own time);

• filing the court records (cassettes and log books or shorthand notes)

• other tasks as assigned.

Two earlier versions of the position description, one dated January 23, 1974 and the other July 1984, list the same main functions - recording verbatim all of the proceedings in court, playing back or reading back previous recordings in Court as requested and “providing typewritten transcripts and/or excerpts of the Courts proceedings as recorded and as requested or required.” In these earlier versions, however, there is no “note” that transcripts are normally prepared on the incumbent’s own time.

The class standards, likewise, state that the “responsibilities typically include the following tasks:

• recording verbatim all proceedings including testimony of witnesses, arguments of counsel, judge’s instructions, and all other matters pertinent to the record;

• maintaining log of names, addresses, other pertinent notes in court; reading/playing back proceedings as requested;

• producing typed transcripts as requested, according to established guidelines, and certifying them as accurate prior to release;

• ensuring the filing of tapes, shorthand notes, and log books.

The evidence is clear that the production of transcripts, upon request, is a required part of a court reporter’s duties. It is not optional. The Court Reporter cannot, without the Ministry’s permission, refuse to prepare a transcript. As the Court Monitor Training Manual, produced by the Ministry to train new Court Monitors, states: “The production of the transcript is probably the most important duty you will have as a court reporter.” It then adds, in bold letters, that “there is an obligation on the part of the Ministry to ensure that the court monitor produces the transcripts accurately, in the proscribed format, in a timely manner, and that the fees are collected in accordance with the Regulations.” The same statement is made in the Role of the Court Monitor manual.

A Court Reporter also cannot, without the Ministry’s permission, delegate the preparation of a transcript to another Court Reporter. Court Reporters may hire a typist to type the transcript, but certification of the transcript remains the responsibility of the Court Reporter who took the record in court. The Court Reporter must certify that the transcript is a true and accurate transcription from the recordings the Court Reporter made in court, to the best of his or her skill and ability. Each copy of the transcript must be so certified and signed by the Court Reporter.

There is one exception to this. The Evidence Act was recently amended to provide for two separate certifications where the proceedings have been taped by a Court Monitor. The Court Monitor certifies that the taping he or she took of the court proceedings is an accurate recording. Then there is a separate certification that the transcript is an accurate transcription of the certified recording. Normally, the same person both takes the record and types the transcript, but with the separate certifications the typing may be done by another court reporter. This two-step certification procedure does not exist for other types of court reporters. For short-hand, stenographer and stenomask reporters, the same person must take the record and certify that the transcript accurately reflects the verbatim proceedings in court.

Mr. Uhlmann testified that the Ministry, in connection with this dual certification amendment, now “certifies” Court Monitors. The Ministry created two panels. The “A” panel included any Court Reporter who had prepared a transcript within the prior 12 months. They were “grandfathered” onto the “A” panel. The “B” panel is for new Court Reporters who have been trained and deemed qualified to produce a transcript. There is no “certification” by the Ministry of other types of Court Reporters.

. As noted, the job specification, since 1994, states that the preparation of transcripts is on the incumbent’s “own time.” The Court Monitor Training Manual, likewise, states that the “transcript is produced on the court monitor’s own time” as a “separate business of the monitor.” The evidence shows, however, that the practice of the Ministry in relation to Court Reporters preparing transcripts during “work time” – as opposed to on their own, unpaid time – varies throughout the province. There was substantial evidence that many Court Reporters do type transcripts and perform related functions during paid work time.

In some courts, classified Court Reporters had scheduled time “out of court” to type transcripts. The extent of this practice is unclear. According to Mr. Terry Moore, then an OPSEU Grievance Officer who dealt in many Court Reporter matters in the early 1990’s, the “overwhelming preponderance of the workplaces with classified court reporters allowed them to prepare transcripts during work time.”

This practice was prohibited, effective July 15, 1990, by the Ministry in a memo dated May 29, 1990 by Mr. Michael Gourley, Assistant Deputy Attorney General Courts Administration. This led to the filing of numerous individual grievances and several policy grievances. The parties agreed to put all of these grievances on hold pending settlement negotiations and the Gourley memo was not implemented. Under this agreement, whatever the local practice was at a court house was to remain the practice, pending settlement negotiations. Even though the settlement negotiations ended, there is no evidence that the Gourley memo has ever been implemented. Consequently, whatever practice existed in 1990 regarding Court Reporters typing during work time presumably continues to the present.

In many courts, classified Court Reporters are allowed to type during “down time.” A classified Court Reporter’s day is 8:30 a.m. to 4:30 p.m. “Down time” includes the period before Court starts, from 8:30 to 9:30 a.m., when the Court is in recess or if the court ends early. During those times, many court reporters have been permitted to type at work and were paid their regular wages while doing so.

Unclassified Court Reporters have also been permitted to type at work where they are called in, but then not required in Court, or if their Court ends early, before the minimum call-in pay is up. There is no evidence, however, that they have been called in specifically to type transcripts.

Even in the courts where typing is not permitted during these times, Court Reporters have been allowed to perform related transcript functions, such as proof-reading typed transcripts, billing, checking citations and spellings, photocopying, binding and so forth.

Ms. Sarah Coombs, a classified Court Reporter, testified that, at times, when she was behind on transcripts, she was given days out of court to type transcripts and that she also regularly typed during “down time” during the work day. It was her testimony that all Court Reporters, both classified and unclassified, had been allowed to type during work time in the Milton Court House as well as in Brampton. Ms. Florence Clarke, also a classified Court Reporter, testified that she originally had been scheduled days out of court to type transcripts at the East Mall and that she could type transcripts during “down time”, but that practice changed in 1990. After that, she was only allowed to perform transcript related work during “down time” periods. It was the Ministry’s evidence, through Court Manager Rosa Martelli, that the practice at the East Mall of scheduling “days out of court” to type changed in either 1997 or 1998, but that Court Reporters could still type during “down time.” Ms. Earnell Williams, an unclassified Court Reporter, testified that she was allowed to type during work time when she was called in, but there was no court to work in. Ms. Isabelle Morin, a classified Court Reporter, testified that she typed at work but was not scheduled days out of court to type. Nevertheless, because she usually only worked for bilingual judges, she regularly had one day per week to type while at work.

The evidence also showed that transcripts may also be typed at work, during work time, when a judge orders it. In that event, the Court Reporter must advise his or her supervisor and receive permission.

A very significant amount of typing transcripts, however, is done outside of court, on non-work time, and this forms the crux of the Union’s complaint. In the Union’s view, transcript preparation is required work which should be subject to the collective agreement, including the overtime provisions. In the Ministry’s view, the preparation of transcripts is separate from the taking of the record and when Court Reporters perform this function, they are acting as independent contractors. In the Ministry’s view, the preparation of transcripts is not bargaining unit work.

Court reporters are not paid wages for the time spent typing transcripts outside of work hours. They are paid, per page, based on a tariff set by regulation under the Administration of Justice Act.

The tariff sets out a fee of $3.20 per page for the first copy ordered, and 55 cents per page for each additional copy ordered except for transcripts for appeal to the Court of Appeal or Divisional Court. For appeal transcripts, a fee of $3.75 per page for a single transcript may be charged, regardless of the number of copies required or ordered.

As Mr. Uhlmann testified, there are “gaps” in the tariff. For example, there is no mention of an expedite fee or a request for a diskette, or a minimum fee in the tariff. It is the Ministry’s position, however, that Court Reporters are not permitted to charge in excess of the tariff and that these matters may not be “negotiated.” The Court Monitor Training Manual states that the regulation “does not allow an expedite fee in transcripts or court proceedings, nor is a minimum fee allowed.” It also states that a Court Reporter must provide a diskette, upon request, “at a fee equal to the cost of the diskette”, unless the blank diskette was provided by the court office in which case the court reporter “is not entitled to a fee.” The Transcription and Procedures Manual states that “[o]ther than as prescribed by regulation, no other fees are payable to court reporters.” The Trainer’s Manual goes even further. It states, at Section 5.2 that “[a]ny variance from these set fees is unlawful.”(O.Reg. 587/91 as amended, Administration of Justice Act). Ms. Morin testified, however, that she was not aware that a diskette was covered by the regulation and that she charged for two copies when she supplied a diskette, without complaint by the ordering party. She also testified that she was free to charge extra for a French transcript, since it was not covered by the regulation, although she has never done so.

The Ministry, on behalf of the Attorney General, maintains an oversight function in regard to the production of transcripts, including conformity with the tariff. As stated in the Training Manual for Court Monitors, repeatedly:

Even though the transcripts are produced at home on your own time, the Ministry has an obligation to ensure that the transcripts are produced accurately, and in a timely fashion, and that the billing is done in accordance with the regulated fees.

Any complaints or concerns that you receive regarding transcript production should be brought to the attention of your supervisor so they can assist you in dealing with the situation.

Transcript production – timeliness, accuracy, productivity – forms part of the evaluation process for a court reporter. It is one of the “measurables as to your job performance.” As stated in the Training Manual, in bold letters:

REMEMBER:

The production of accurate transcripts is a large part of the duties of a court monitor. Failure to do so will become a performance issue and as well, could have serious ramifications for the litigants!

The evidence included several performance appraisals which included a review of a court reporter’s transcript production – for being “within prescribed times”, accuracy and “350 pages per month.” Mr. Lou Bartucci, Manager of Court Operations at 361 University Avenue, testified that “we attempt to ensure preparation of transcripts in a timely fashion, proper formatting within the guidelines, and that the tariffs are followed.” On occasion, he stated, the Ministry will order a transcript for “quality control” purposes.

Mr. Uhlmann testified that, in “many areas in the province”, the Ministry monitors the timeliness of transcripts, and that managers and supervisors will “regularly go to a court reporter about a delayed transcript” and “ask for an update.” He added that if a judge is concerned, he or she will go to the manager or supervisor to inquire about the transcript. The manager or supervisor would then “try to resolve the concern.” In his view, where there are statutory deadlines, the Ministry “takes an active role in ensuring that the transcript is produced.” This is to ensure that court proceedings are not delayed by a delinquent transcript.

On February 18, 2003, Chief Justice of Ontario Roy McMurty issued a Practice Direction for the Court of Appeal for Ontario, which states that “[i]t is anticipated transcripts will be completed within 90 days of the date of being ordered” and required the Ministry to monitor “the progress of any transcripts ordered.” When a transcript is delayed, “the court will inquire as to the status of the transcript and as to whether the court’s assistance is required to ensure the timely completion of the transcript.”

Every aspect of transcript production is dictated by the Transcription and Procedures Manual. It covers transcription orders (either on Ministry forms or in writing); removing recordings and logbooks for transcription purposes; timeframes for transcript production; deposits; logging of transcript orders; transcript formatting rules including the type and size of paper, font, lines per page, headings, the cover and back page content and colour; binding; certifications; and distribution. It covers preparing the invoice for the judiciary and the Crown (on a form provided by the Ministry) as well as what must be included for private parties, including the fees that may be charged.

In regard to private invoices, the Ministry states in the Training Manual that the “invoice should clearly set out the number of pages and per page rate”, “should credit any deposit received” and “[e]nsure that your name, court address and contact number are on the invoice.” In another manual entitled “The Role of the Court Monitor”, published by the Ministry, the Ministry advises “[n]ever include your home address or telephone number on the personal invoice. Always use the Court House address and phone/fax numbers.”

The Training Manual also states that transcripts for appeals may not be delayed for lack of a deposit, and transcripts ordered by a representative of any government Ministry cannot be withheld pending payment.

The Transcription and Procedures Manual is produced by the Ministry, based on a variety of sources such as legislation, regulation, rules, and practice directives regarding transcript production. Its purpose is to ensure uniformity and consistency. All Court Reporters, not just those employed by the Ministry, are expected to comply with the policies set out in this manual.

The time periods for the production of transcripts, as set out in the Manual, varies based on the type of transcript. In addition, there are expected “norms” for transcript production. The following table appears in the Trainer’s Manual for Court Monitors:

NORMAL TURNAROUND TIMES FOR TRANSCRIPT PRODUCTION

Bail hearing for use on bail review 2 days

Application of Stay 7 days

Reasons for judgment and sentence 7 days

Disposition hearings 7 days

RESO (Provisional & Confirmation 21 days

Judicial Review 30 days

Preliminary inquiry 30 days

Summary Conviction Appeal 30 days

Prerogative writ* 30 days

Inmate appeal 30 days

Other civil and criminal proceedings 30 days

• Habeas corpus; motion to quash; prohibition; mandatory order

There can be some individual negotiation between the court reporter and the ordering party in terms of completion, but the standards are set out in the Manual.

Court Reporters, in the Trainer’s Manual, are advised that that “[i]t is vitally important that you maintain a line of communication with your supervisor so that they are aware of situations where you may not be able to meet the required timeframes for producing the transcript.” It adds that the supervisor “can then assist you in a number of ways i.e., not scheduling you in court so you will have time to type, assigning some of the urgent orders to other reporters who are not as overloaded at the time.” It states that “[i]f you are unable to meet those expectations, again confer with you supervisor and contact the ordering party with new deadlines. Your supervisor may decide to assign portions of the transcript to another party.”

In terms of Ministry sanctions for untimely transcript production, Mr. Uhlmann testified that the “ultimate leverage” that the Ministry has is to keep the Court Reporter out of court until the transcripts are complete. In other words, the Court Reporter is not assigned to any new trials until his or her transcripts are done. He stated, on examination-in-chief, that the Ministry does not have the power to impose a disciplinary sanction in these circumstances. But in cross-examination, he acknowledged that termination “may be” an appropriate response if a court reporter could not properly type transcripts. Either that, or in the case of a court monitor, the Ministry could keep them on solely to take the record. He was not aware of any court reporter fired for being unable to do transcripts, or of any court monitor who solely takes the record. The “reality”, he testified, was that a Court Reporter who had difficulty with transcripts would not be assigned to a court where a transcript was likely to be needed.

Court Reporter Earnell Williams testified that in 2002, she developed a backlog and was kept out of court by management for approximately ten days – without pay - because of overdue transcripts. This action is the subject of another grievance before the GSB.

Court Reporter Isabelle Morin testified that the Ministry took some of her transcripts away because she could not complete them. In a letter dated September 1,1998 to Ms. Morin, Mr. Lou Bartucci, then Manager- Court Operations, Criminal, wrote that Ms. Morin could either complete the transcripts herself or seek the assistance of colleagues to help her complete the transcripts. If those two options were not acceptable, he would have to retrieve the records and “assign the preparation of the transcripts.” He requested that she contact him by the end of the day on September 4th, or “I will have no choice but to take the appropriate steps to ensure that these transcripts are prepared within the required time frames.” Mr. Bartucci testified that the Ministry has the authority, unilaterally, to reassign transcript production to another court reporter.

It appears that the level of management supervision of Court Reporters’ transcript production varies among the courts in the province. In the Central West Region, for example, all requests for transcripts are recorded and logged. A Practice Directive, issued November 2003, states that Court Reporters must submit a Transcript Summary Log to their supervisor on the first of each month. They must inform their supervisor if they are unable to produce the transcript so “[t]he supervisor may assign the order to an alternate court reporter.” They must advise their supervisor if a transcript is over due and outline the expected the date of completion. Further, “[i]nvoices must be submitted to the supervisor for approval.”

In Brampton, a receptionist processes all requests for transcripts and handles most of the administrative aspects of transcript production. Mr. Kin Lim, who held that position from 2002 until 2004, testified that he logged in the transcript requests into the office computer, advised the appropriate court reporter, took transcript deposits, collected transcript fees and would hand over the completed transcripts to the ordering party. He also issued daily, weekly and monthly transcript activity reports which he placed in the court reporters’ mailboxes. He acknowledged that there may have been transcript requests that went directly to the Court Reporter of which he was not aware. He testified, however, that the Court Reporter is supposed to refer such requests to the Receptionist.

Mr. Uhlmann described this as a “coordinating” function, usually performed in the larger court houses. There would be a staff member at an “order desk” and that person would take the transcript order, take in the deposit, pull the right tapes and logs, and advise the Court Reporter. In smaller court houses, transcript requests often are made directly to the individual reporter. Transcripts ordered by the judiciary are passed on by the Court Services Division of the Ministry, to the Court Reporter. As Mr. Uhlmann explained, “for all intents and purposes, it is the Ministry who orders the transcript on behalf of the Court.”

In other courts, such as 361 University Avenue, only transcripts for the Court of Appeal are tracked by management. There is no Receptionist position, but there is an order desk which performs many of the same, but not all, of the functions of a receptionist.

The judiciary also gets involved when a transcript is late. Under the Administration of Justice Act, a judge is in charge of his or her courtroom. Judicial orders have included setting a date for the completion of the transcript, failing which “the reporter is to appear before me …to explain the delinquency.”

In another case of a late transcript, the Court ordered the Court Reporter to report to work “every weekday” from 8:30 a.m. to 4:30 p.m., “until such time as a Certificate of Completion has been filed with respect to said transcript…” The judge further ordered that the Court Reporter “will not be paid by the Ministry of the Attorney General for the days on which she attends at the Courthouse to complete the transcript or otherwise in respect of this matter; similarly she is not to undertake any other work until a Certificate of Completion of the transcript has been filed.” This type of order, according to Mr. Bartucci, was not a common occurrence

Mr. Bartucci explained that the Court of Appeals status court works with court management to ensure the timely preparation of transcripts. The Ministry makes inquiry of the Court Reporter and, if necessary, will not assign them to court until the transcripts are done.

In terms of the delivery of transcripts for private litigants, this may be negotiated between the ordering party and the Court Reporter (i.e., courier service; pick-up), but the evidence showed that most parties opt to pick up the transcript from the Court House. Delivery of transcripts to the Crown or judiciary is done by the Ministry.

Each of the Court Reporters who testified produced a copy of their tax returns, with the numbers but not the categories blocked out. In each case, the Court Reporters claimed the income that they received from transcript production as either professional or business income, separate from their wages as a Court Reporter. They received a T4-A form from the Ministry for reporting fees paid for transcripts for the judiciary and the Crown. Additional amounts paid for transcripts from private ordering parties were also included. The Court Reporters claimed tax deductions for home business use, and business related deductions such as telephone, automobile, computers, and so forth.

The evidence also showed that until the early 1990’s, a Court Reporter’s “basic pay” and “reporting fees” were included in their Ministry paycheques, and that tax and C.P.P. deductions on both were made at source by the province. Both their wages and reporting fees were included in their T4 form. At times, a Court Reporter would receive a cheque from the province for reporting fees, alone, with income tax deductions made by the province.

There was no evidence that Court Reporters perform transcript work outside of their Court Reporter jobs with the Ministry, or sought such work. Conceivably, they could do so, particularly the unclassified Court Reporters. The classified Court Reporters work full-time whereas the unclassified reporters work “on-call, as required.” But even then, there is a commitment to the Ministry to be available. Ms. Williams, an unclassified Court Reporter, testified that she works “every day.” Consequently, the evidence presented in this case is that the transcript work performed by the Court Reporters flows exclusively from their work as Court Reporters with the Ministry.

The Court Reporters also do not and cannot control the amount of transcript work they receive and must perform. Although some transcripts are automatic, in many proceedings it is not clear if a transcript will be ordered until one is actually ordered. Ms. Coombs testified that she had no control over the amount of transcript work required of her. It was her testimony, as well as the other reporters, that a court reporter cannot refuse a transcript request. Mr. Bartucci concurred with this. Of course, if a court reporter is ill or unable to produce the transcript, the Ministry will reassign the task. There was no evidence that a Court Reporter can solicit transcript work from the judiciary, the Crown or private parties.

At most, an unclassified Court Reporter may make himself or herself “unavailable” for a period of time to work on transcripts. But if the Court Reporter is “available”, he or she must accept an assignment to court from which a transcript may be ordered.

All of the Court Reporters testified that, on rare occasions, they hired a typist to assist in the completion of their transcript work. They found, however, that this was not economical because they had to pay the typist and still had to review the tapes and proof read the work to ensure its accuracy, make corrections, reproof it and certify it. In all cases, however, it was the Court Reporter’s decision whether to hire a typist and whom to hire.

There is also Ministry involvement in collection of transcript fees. Transcript fees for the judiciary are paid directly by the Ministry. In some cases, transcripts for the Crown are also paid by the Ministry and then charged back to the Crown Attorney. In other cases, they are paid by the Crown Attorney, again on a form provided by the Ministry.

Most of the Court Reporters testified that if they have an issue with collection of transcript fees from a private ordering party, they deal with it themselves. They usually call the party. When Ms. Morin was asked on cross-examination how she handles it if she has not been paid, she stated: “I handle my own affairs; it’s my work.” The Transcript Manual, however, advises Court Reporters to discuss any collection problems with their supervisor: “If you experience difficulty in collecting transcript fees from an ordering party, discuss the problem with your manager or supervisor.” Mr. Bartucci testified that management plays a “middle man” or “customer service role” when an issue arises from a private ordering party.

The Court Reporters viewed the completed transcript as “their” work. According to Ms. Clarke, the Court Reporter “owned” the transcript and had copyright protection over it. In contrast, the “record”, according to Mr. Uhlmann, is owned by the Ministry on behalf of the judiciary.

In terms of equipment, again the practice varies throughout the province. The Court Monitor Training Manual states as follows in regard to “Transcript Supplies”:

Although practices may vary throughout the province, generally the Ministry may supply you with the following supplies and services:

Transcriber (This may vary from location to location)

Tapes

Notebooks

Pens

Transcript paper

Transcript coloured backing covers

Cerlox/Acco binders

Use of binding machine (No charge)

Ear phones

You may be required to supply:

Computer and computer supplies

Printing cartridges

Ear phones

Highlighters, coloured pens etc.

Plastic front covers (Optional- not required by regulated format).

The Manual states that Court Reporters are to be charged for photocopies at the rate of 5 cents per page, but the Court Reporters who testified stated that, with some exceptions, they were not charged for photocopies. They testified that binding is either done by them, using the Ministry’s binder, or done by the Ministry. The Training Manual outlines the procedure for having the Ministry bind Court of Appeal transcripts, using a Ministry form.

Mr. Lim testified that when he became a Court Monitor he initially used one of the ten to fifteen transcribers (a cassette player with a foot pedal to control tape speed, play and rewind) supplied by the court, but eventually purchased his own for convenience. He regularly used one of three computers available at the court, and the Ministry’s printer to type and produce transcripts. His tapes were provided by the Ministry. Ms. Florence Clarke testified that the Ministry provided (and repaired) her stenomask, transcriber, foot pedal and ear phones, a tape recorder, transcript paper, covers and office supplies, photocopies, binding and telephone, including long distance calls relating to transcripts. She provided her own stenotype machine and printer.

Mr. Uhlmann testified that even though the intent of the Ministry was that Court Reporters would provide their own transcribers, since this was viewed as independent work, over time some of the courts provided them. Further, he stated that where Court Reporters are allowed to type during work time, they do so on Ministry computers. He stated that there are very few stenomasks left, although some are kept in court houses for back-up purposes. He stated that the Ministry does not provide C.A.T. software.

The Employer introduced two determinations regarding the independent contractor status of Court Reporters. The first is a letter, dated September 27, 2004, to a Court Reporter from a Workplace Safety and Insurance Board Account Manager regarding a general questionnaire she submitted regarding worker/independent operator status. This letter determines that although Court Reporters are employees when providing in-court services, “when it comes to transcript work for judges and Crown Attorneys, the facts suggest that Court Reporters are also acting as independent contractors rather than employees.” The two “most important facts” for this conclusion “are that the Ministry of the Attorney General issues T4A receipts for transcript work instead of T4 receipts, and the rates for transcript production are set by the Courts of Justice Act, and not any agreement between the Ministry and the Court Reporters.”

The other was a letter from Canada Revenue Agency, dated April 11, 2005, regarding Ms. Florence Clarke’s request for a ruling regarding the insurability and pensionability of her transcribing fees. The letter, written by a CPP/EI Coverage Officer, determined that although she is an employee under a contract of service, “her earnings in Canada which have been reported on a T4A slip, issued by the Ministry of the Attorney General are actually paid by the Judiciary Council” which did not hire her under the Public Service Act of Ontario. Therefore “her earnings for the transcribing fees are not insurable under…the Employment Insurance Act nor pensionable under …the Canada Pension Plan.” This ruling is under appeal. It should be noted that both the Ministry and the Union did not agree that transcribing fees “are actually paid by the Judiciary Council.” Further, in neither case was there a hearing on the merits.

Positions of the Parties

For the Union

The Union contends that the preparation of transcripts is bargaining unit work, subject to the collective agreement. It argues that all of the Court Reporters are “employees” and in the bargaining unit represented by OPSEU. It submits that it has met its initial onus of establishing that the preparation of transcripts is part of the regular work performed by Court Reporters, that it is part and parcel of what they are hired to do for the Ministry in order to fulfill the Attorney General’s responsibilities to superintend the courts and administration of justice in Ontario.

In the Union’s view, the evidence overwhelmingly demonstrates that the preparation of transcripts is required work for Court Reporters. This is evident, it submits, from the job descriptions and class standards as well as the testimony of the witnesses at the hearing. The preparation of transcripts, it argues, is not optional. The Court Reporter cannot say “no” without the permission of management. They are evaluated on the performance of this function and can be disciplined and even terminated if transcripts are not completed properly. The Union further relies on the fact that, historically, Court Reporters have been regularly allowed to type transcripts on “work time”.

The Union cites to Re Worthington Cylinders of Canada Corp. and United Steelworkers of America, Local 9143 (2004), 2004 CanLII 94635 (ON LA), 123 L.A.C. (4th) 248, 255 (Surdykowski), for the proposition that “ ‘bargaining unit work’ is the work that is normally performed by bargaining unit employees.” It cites to OPSEU (Union Grievance) and Ministry of Health and Long-Term Care (2002), GSB No. 1942/94 (Fisher) and OPSEU (Pilon et al.) and Ministry of Community and Social Services (2001), GSB No. 1254/94 (Brown) for the proposition that the Employer may not use non-employees to perform bargaining unit work.

The Union further argues that once it has met its onus of establishing that the preparation of transcripts is bargaining unit work, the onus shifts to the Employer to demonstrate that the work has been properly contracted out. It asserts that “he who asserts, must prove”, citing Gorsky, Usprich and Brandt, Evidence and Procedure in Canadian Labour Arbitration, Ch. 9-25(e); Re Spar Aerospace Ltd. and Spar Professional & Allied Technical Employees Association (Metropolitan Toronto) (1994), 1994 CanLII 18632 (ON LA), 40 L.A.C. (4th) 215 (H. Brown); Re Hydro Electric Power Commission of Ontario and Canadian Union of Public Employees, Local 1000 (1974), 1974 CanLII 2373 (ON LA), 5 L.A.C. (2nd) 168 (O’Shea); Re International Nickel Co. of Canada Ltd., and United Steelworkers, Local 6500 (1975), 1975 CanLII 2196 (ON LA), 9 L.A.C. (2nd) 173 (Gorsky); Re Lakehead District School Board and Canadian Union of Public Employees, Local 2486 (2001), 2001 CanLII 61999 (ON LA), 96 L.A.C. (4th) 315 (Luborsky).

The Union submits that the evidence does not establish that the Court Reporters are independent contractors in relation to the preparation of transcripts. It argues that the Ministry has total control over the production of transcripts – the rates that may be charged; how orders may be made (in writing only); what transcripts must contain (the paper, font, headings, lines per page, cover colour, etc.). It asserts that the Ministry is involved in every aspect of the production of transcripts – taking the orders, taking the deposit, collecting the fees, providing the paper, copying and binding, and delivery of the transcripts, and providing much of the equipment so that, from the perspective of the public, it is a service provided by the Ministry. The Union argues that the Court Reporters are not providing transcripts as their own business, but are required to do so as part of their job. The Court Reporters, the Union submits, are not in “business for themselves” but fulfill a responsibility of the Ministry of the Attorney General. Their only source of court reporting work, the Union contends, is the court proceedings that are assigned to by the Ministry. They do not have other, independent, court reporting “clients” and are not “entrepreneurial” in their activities.

The Union submits that under the facts of this case and any of the legal tests that have been used to determine “independent contractor” status, the Ministry has failed to meet its onus that the Court Reporters are independent contractors. In support, it relies on Brown and Beatty, Canadian Labour Arbitration, 3rd Edition, Section 5:1320; Re Emu Plastics Ltd. and United Food and Commercial Workers International Union, Local 175 (1999), 1999 CanLII 35863 (ON LA), 82 L.A.C. (4th) 397 (Dissanayake); OPSEU (Court Reporters) and Union of Court Reporters and Ministry of the Attorney General (1988), T/0064/84 (P.Picher); OPSEU(Clerks, Bailiffs and Interpreters) and Ministry of the Attorney General (1988), T/55/84 (P.Picher); OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General (1988), T/14/99 (P.Picher); Re Ottawa Hunt and Golf Club Ltd. and Hospitality and Service Trades Union, Local 261 (2003), 2003 CanLII 89636 (ON LA), 115 L.A.C. (4th) 225 (R. Brown); Re Municipal Property Assessment Corporation and Ontario Public Service Employees Union (2002), 2002 CanLII 78941 (ON LA), 109 L.A.C. (4th) 385 (Howe); 671122 Ontario Ltd. and Sagaz Industries Canada Inc. (2001), 2001 SCC 59, 204 D.L. R. (4th) 542 (S.C.C.); Sands v. Canada (Minister of National Revenue- M.N.R. [1991] T.C.J. No. 237 (T.C.C.); Wiebe Door Services Ltd. Av. Ministry of National Revenue 1986 CanLII 6775 (FCA), [1986] 3 F.C. 553 (F.C.C.C.A.)

At most, the Union argues that the Court Reporters are “dependent contractors” as defined in the Ontario Labour Relations Act. In the Union’s submission, the definitions under the Ontario Labour Relations Act are incorporated into the Crown Employees Collective Bargaining Act (CECBA). It asserts that the court reporters are completely dependent upon the Ministry for their court reporting work, and must perform that work for the Ministry. Accordingly, the Union submits that the Court Reporters, when preparing transcripts, are dependent contractors who must be included in the bargaining unit. In support, the Union cites to Adbo Contracting Company Ltd. [1997] O.L.R.B. Rep. (April) 197 and Dominion Dairies Ltd. [1978] O.L.R.B. Rep. (Dec.) 1083; Huntsville District Memorial Hospital [1009] OLRB Rep. Nov./Dec.986.

The Union further contends that the “determinations” of independent contractor status by WSIB and Revenue Canada are not binding on this Board and should not be given any weight. It asserts that none of the criteria for issue estoppel have been met, and that the letters are not a determination on the merits. In support, the Union relies on OPSEU (Villella) and Ministry of Correctional Services (1997), GSB No. 1662/96 (McKechnie).

The Union also argues that this Board did not determine the issue involved in this hearing in OPSEU (Gareh) and Ministry of the Attorney General (2002), GSB No. 1655/98 et al. (R. Brown), and that the principle set forth in Blake et al. and Amalgamated Transit Union, GSB No. 1276/87 (Shime) therefore does not apply. In support, it cites to OPSEU (Arnold) and Ministry of Correctional Services (1993), GSB No. 255/91 (Dissanayake); OPSEU (Watts) and Ministry of Community and Social Services (1991), GSB No/ 1340/90 (Stewart); OPSEU (Lariviere) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2002-2124 (Dissanayake) (judicial review pending).

The Union also argues that the Employer cannot “bargain” with its employees independently of the Union. It cannot, in its view, have a separate “agreement” with Court Reporters for the work they perform as part of their Court Reporter job. When it does so, the Union submits that the Employer has violated its right of exclusive representation. It contends that the fact that the “bargain” is determined by tariff and regulations does not exempt the Ministry since the Ministry has still bypassed the Union and the tariffs conflict with the overtime provisions in the collective agreement. In support, the Union cites to Re Regional Municipality of Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Association (1992), 1992 CanLII 14650 (ON LA), 30 L.A.C. (4th) 198 (McLaren) and Re Loyalist College of Applied Arts and Technology and OPSEU (2003), 2003 CanLII 29709 (ON CA), 225 D.L.R. (4th) 123 (Ont. C.A.)

The Union contends that the Public Service Act regulations concerning “conflict of interest” precludes the very thing that the Ministry is contending in this case – specifically, that employees can have an independent business directly related to their work for the Ministry. It argues that the very concept of the Court Reporters having an independent business, supported and aided by the Ministry, creates an actual and perceived conflict of interest proscribed by the regulations.

Accordingly, the Union asks the Board to declare that the preparation of transcripts is bargaining unit work, subject to the collective agreement, and remain seized.

Employer

The Employer contends that there are two functions performed by Court Reporters – the taking of the record in court, and the production of transcripts, upon request. It agrees that the latter is bargaining unit work but asserts that the former, the production of transcripts, is not. It asserts that, historically, transcript preparation has never been considered bargaining unit work and that while the Ministry oversees that function, as part of its responsibility to administer the courts, it does not do so as an “employer.” It contends that, historically, transcript production has always been a separate contract of service in exchange for payment. Citing Brown and Beatty, Canadian Labour Arbitration, at 5:1200, that bargaining unit work is “work customarily performed by a member of the bargaining unit”, the Ministry argues that transcript production is not work historically performed by the bargaining unit. It asserts that the Court Reporters are not paid “wages” for preparing transcripts, but instead receive the applicable tariff directly from the ordering parties. The Ministry contends that it does not have an employment relationship with the Court Reporters in relation to the preparation of transcripts.

In the Employer’s view, the Union’s position is a microanalysis of a lot of “little things” but misses the “big picture” that Court Reporters are not performing bargaining unit work when producing transcripts. Indeed, it asserts that there is no evidence otherwise. In light of the fact that transcript production has not historically been considered bargaining unit work, the onus of establishing that it is, the Ministry submits, rests with the Union. In support it cites to Gorsky, Usprich and Brandt, Evidence and Procedure in Canadian Labour Arbitration, Ch. 9

The Employer contends that transcript production is governed by the individual players in the Courts – the judiciary, the Crown, lawyers and litigants –not the Ministry. The Ministry, as employer, does not require transcripts to be produced and does not govern their production. It asserts that it plays no part in determining what transcript work is required, the performance of the work, or payment for that work. Those matters, in argues, rest with the individual players, not the Ministry. In its view, transcript production is a separate business and has always been treated as such by the parties. It argues that the fact that the same people take the record and then produce the transcript does not mean that transcript production is bargaining unit work. It asserts that the Court Reporters are not employees as well as independent contractors for the “same work”, but for different work.

The Ministry agrees that transcript production is a “regulated” business, but asserts that the fact that the Ministry regulates it, for all court reporting, not just in the Courts, does not transform this function into an employment relationship.

The Ministry argues that the job description specifically carves out the function of transcript production by noting that it is done on the incumbent’s “own time.” This notation, it submits, comports with the reality of the practice. It submits that while there is some limited evidence that Court Reporters have been allowed to type transcripts during work time, the evidence is inconsistent and does not render the work bargaining unit work. It asserts that the Employer does not require or mandate the typing of transcripts during work time, but allowed it, and that the Employer is entitled to govern the day-time activities of Court Reporters without converting such work into bargaining unit work. The Court Reporters, the Ministry submits, were free to perform other work.

Similarly, it asserts that the oversight role played by the Ministry in regard to transcript production does not render transcript production bargaining unit work. In its view, the Ministry plays an administrative assistance/customer service role which, again, does not transform transcript production into bargaining unit work.

The Ministry forcefully argues that the GSB has already determined that transcription work is not bargaining unit work in OPSEU (Gareh), supra. In that case, the Union had contended that time spent producing transcripts should be included in determining hours for conversion purposes, and the GSB rejected that contention. The Employer argues that in light of Gareh, the issue of whether the production of transcripts is bargaining unit work has been decided, and that all of the requirements for issue estoppel have been met in this case – the same issue, the same parties, and a full and final decision on the merits. It argues under that under the doctrine of issue estoppel as well as the principles set forth in Blake et al., supra, the Board is not free to issue a contrary ruling in this case. The Ministry also relies on OPSEU (Fazakas et al.) and Ministry of the Attorney General (2005), GSB No. 1992-2964 (Petryshen).

Further, the Ministry contends that under the tests used to determine independent contractor status, the Court Reporters are independent contractors in relation to the production of transcripts. It asserts that most of the tools/equipment used in transcript production (as opposed to taking the in-court record) are supplied by the Court Reporter, that the Court Reporter is responsible for the order, invoicing, the location of the work, and may negotiate matters with an ordering party. It points to the testimony of Ms. Morin that she determined what to charge for a diskette, not the regulation, and that she could determine what to charge for a French transcript. It points to the testimony of the Court Reporters that describe the transcripts as “their” work, which belongs solely to them. Significantly, in the Ministry’s view, the Court Reporters have represented themselves, to Revenue Canada and the public, as being self-employed in the business of court reporting. They have claimed that status and received its tax benefits. In the Ministry’s submission, these are the “big” things that establish that transcript production is not bargaining unit work.

In support of its position, the Ministry cites to Canadian Waste Services Inc. and U.S.W.A., Local 343-6 (1999), 1999 CanLII 35912 (ON LA), 84 L.A.C. (4th) 50 (H. Brown); Re Toronto Star and Southern Ontario Newspaper Guild (1990), 1990 CanLII 12791 (ON LA), 18 L.A.C. (4th) 49 (Burkett).

In terms of the Ministry’s oversight of transcript production, the Ministry argues that it has no power to enforce the Transcription Manual or even the tariff. The manual, it asserts, is a compilation of relevant legislation, rules, practice directions and regulations which governs all court reporting, but the Ministry cannot enforce it through discipline. The most it can do, the Ministry contends, is not assign a Court Reporter to court until his or her transcripts are completed. That, in its view, is not “discipline.” It acknowledges that transcript production is evaluated by the Ministry, but asserts that there is no evidence of adverse job consequences flowing from a negative evaluation of transcript production.

Nor, it contends, can the Ministry enforce the time requirements for transcripts. The ultimate responsibility, the Ministry asserts, lies with the Court Reporter, not the Ministry. Instead, it is the judiciary, in its control over court proceedings, which can order the Court Reporter to comply.

The Ministry also contends that there is no “dependent contractor” status under CECBA. It argues that while the definitions set out in the Labour Relations Act may be incorporated into CECBA, they do so under Section 2 only “to terms used in this Act.” The Ministry asserts that the term “dependent contractor” is not a term used in CECBA and therefore has no applicability.

The Ministry also asserts that the conflict of interest regulations cited by the Union are not applicable in this situation and cannot be relied upon by the Board in the manner suggested by the Union. It contends that, under the regulations, it is the role of the Deputy Minister, not the GSB, to determine if a conflict exists and that no such determination has been made in this case.

Accordingly, the Ministry asks that the grievances be dismissed.

Decision

1. Impact of the Gareh decision.

After carefully considering the decision of the board in OPSEU (Gareh) and Ministry of the Attorney General, supra, I have determined that it did not decide the issue before me, and is not binding on my determination in this case.

The grievor in that case, Debbie Gareh, an unclassified court reporter, alleged, among many other allegations, that the Ministry violated Article 31.15 based on the employer’s refusal to convert the grievor to classified status. In that case, the Board initially noted that Ms. Gareh had not worked full-time hours in the position for two years, as required under Article 31.15. The Union argued, however, that the time that she worked at an hourly wage was not all that should be considered, and that the Ministry should have included (1) hours for which the grievor was denied paid standby duty and (2) hours for which the union alleges she should have been paid an hourly wage for transcribing at home; and (3) all the time spent by her transcribing evidence at home, even if she was not entitled to be paid an hourly wage for this work.

On the facts, the Board determined that there was no evidence that Ms. Gareh was ever denied paid standby duty, nor was she denied paid transcribing work – i.e., time out of court during the work day spent transcribing evidence and paid at an hourly rate. According to the Board, the only reliable evidence in that case was that the practice of granting paid transcribing weeks ended before 1994. The Board then ruled that even if she should have been granted standby duty or transcribing weeks on the occasions she claims one or the other was denied, “she would still not be entitled to conversion.” The Board also rejected the Union’s last contention – that time spent transcribing at home should be counted for purposes of conversion even if she was not entitled to an hourly wage for this work. The Board rejected this contention “because much transcript work is produced at the request of third parties and paid for by them, without any involvement on the part of the employer.” Finally, the Board ruled that even if all hours devoted to the production of transcript counted for the purpose of conversion the time spent would not support a claim for conversion.

The Union in Gareh did not contend that producing the transcript was bargaining unit work for which employees should be paid hourly wages, including overtime, as it contends here. The only claim for paid transcript time was based on the fact that others were allowed to type while at work and received wages. It was not a claim that typing transcripts is bargaining unit work. That broader claim was not made and was not decided. No mention is made in the decision that an issue in dispute was whether producing transcripts was bargaining unit work. Rather, the Union argued a much more narrow issue - that the time spent doing transcript work should be counted towards conversion “even if she was not entitled to an hourly wage for this work.” The Board rejected that contention “because much transcript work is produced at the request of third parties and paid for by them, without any involvement on the part of the employer.” In so ruling, the Board did not determine that transcript work, under all circumstances, is not bargaining unit work. The issue actually addressed by the parties and decided by the Board is not the same as the issues argued and addressed in this case. It is related to the issue in this case, but it is not the “same issue.” Accordingly, I cannot find that issue estoppel applies here. Nor is this determination binding upon me under Blake et al., supra.

2. Is the production of transcripts bargaining unit work of employees, or the work of independent contractors?

The parties contested who bears the onus on these questions. It is my view that the Union bears the onus on the issue of whether transcript production is bargaining unit work, and the Employer bears the onus on whether production of transcripts is the work of independent contractors. The outcome of this case, however, is not dependent on the issue of onus because the evidence is compelling that transcript production is the work of the Court Reporters as employees, not as independent contractors.

The collective agreement does not define the bargaining unit by type of work. It defines it as follows:

Article 1 – RECOGNITION

1.1. The Ontario Public Service Employees Union (OPSEU) for the purpose of this Central Collective agreement is recognized as the exclusive bargaining agent for a bargaining unit consisting of all employees contained within the following units:

1. Unified

2. Correctional

1.2 For greater certainty, such employees include classified, term classified and unclassified employees, students, GO Temps and such other employees as may be mutually agreed.

1.3 For greater certainty, this Central Collective Agreement shall apply to the employees in the bargaining unit described in Article 1.1, …

The Court Reporters, both classified and unclassified, at issue in this proceeding are part of the Unified bargaining unit. They are listed in the Office Administration Classification Group.

Brown and Beatty, Canadian Labour Arbitration, Section 5:1200, Bargaining Unit Work, provides as follows, in relevant part:

Whether work falls outside the scope of the collective agreement may simply be a matter of applying a definition contained in the collective agreement. More often, however, collective agreements do not explicitly define “bargaining unit work.” In these circumstances, the concept of “bargaining unit work” has generally been understood to mean work customarily performed by a member of the bargaining unit.”…

Where the collective agreement contains job classifications and job descriptions, they may conclusively demonstrate the scope of bargaining unit work. However, in the absence of such classifications or descriptions, or where they are described in general terms only, evidence of past practice may be required to determine whether the work in question is bargaining unit work.

In Re Worthington Cylinders of Canada Corp. and United Steelworkers of America, Local 9143, supra at p. 255, a similar definition was used. The arbitrator states:

[T]he concept of bargaining unit work is universally recognized as being fundamental to the operation and integrity of a collective agreement. Simply stated, “bargaining unit work” is the work that is normally performed by bargaining unit employees.

This case presents a most unusual situation. Normally, the issue is whether non-employees, or employees outside of the bargaining unit, are performing bargaining unit work. Here, the issue is whether work performed by bargaining unit employees is bargaining unit work, or whether it is work performed by employees but as independent contractors.

The evidence clearly establishes that Court Reporters have two job functions – taking the record and transcribing it upon request. This is evident from the position descriptions and class standards as well as the testimony of all of the witnesses. Court Reporters are not hired solely to take the record. They must also transcribe the record upon request. When a transcript is either mandated or requested, the Court Reporter must prepare the transcript. It is part and parcel of a Court Reporter’s job. A Court Reporter cannot refuse the request to produce a transcript, but must seek permission from the Ministry in order to have the transcript reassigned.

The Employer asserts that it is the ordering parties – not the Ministry – which requires transcripts to be produced and that the Ministry does not govern their production. Technically, perhaps, that is true. The ordering parties are not usually the Ministry (as the Employer), so the Ministry may be said not to “require” that transcripts be produced. Further, the rules and regulations, as set out in the various manuals, govern the production of transcripts. But what this argument fails to consider is that the Ministry, as the Employer, ensures that the transcript orders get produced, as per the rules and regulations. The Ministry plays a substantial role in this. Indeed, it the Ministry that requires Court Reporters, as part of their job, to produce accurate and timely transcripts as ordered by the judiciary, the Crown, defense counsel and private parties.

The fact that the 1994 position specification provides a notation that transcripts are generally prepared on the employee’s “own time” does not assist the Ministry. Earlier position descriptions did not contain that notation, nor do the class standards. Rather, what all of the position specifications, the class standards and the testimony establish is that the Court Reporters are expected and required to perform both functions. As the Training Manual states: “The production of transcripts is probably the most important duty you will have as a Court Reporter.”

Court reporters are also evaluated on the quality and timeliness of their transcripts. This is one of the “measureables” in terms of their job performance, and the failure to produce accurate and timely transcripts “may become a performance issue.”

Further, Mr. Uhlmann acknowledged that a Court Reporter could be terminated for not being able to produce accurate and timely transcripts, although he was not aware of any Court Reporters terminated for that reason. He further acknowledged that they may also be reassigned to court which is less likely to require a transcript. I also conclude that Court Reporters may be “disciplined” for untimely transcripts.

Although the Ministry has not adopted traditional disciplinary responses to transcription issues (such as verbal and written warnings or suspensions), it has kept Court Reporters out of court until they complete their transcripts. In OPSEU (Gareh), supra, due to complaints by the trial judge, the grievor was reassigned from a trial which generated daily transcripts to summary conviction appeals which generated no transcripts, and as a result the grievor “suffered a financial loss as a result of being reassigned.” The Union argued that she was “disciplined” without just cause, and the Employer brought a non-suit motion on this issue asserting that the grievor had not been disciplined. The Board stated that “[f]or the purpose of the non-suit motion, my only task is to determine whether the union has established a prima facie case that the grievor was disciplined. If discipline occurred, the employer would bear the onus of proving just cause for it.” Vice-Chair Brown then determined that the reassignment “had no impact on her hourly rate, but it did deprive her of income from transcript.” He concluded:

For the purpose of determining whether she was disciplined, I view this as a formal distinction without any substantive difference. The loss of transcript income was a financial penalty and therefore disciplinary. In short, the Union has established a prima facie case of discipline.”

In this case, the evidence shows that Court Reporters have been held out of court, i.e., not assigned to court, in order to complete untimely transcripts. If an unclassified Court Reporter is assigned to court, they would be paid their hourly rate. If a classified Court Reporter is assigned to Court, that assignment may result in a transcript. Consequently, there is a financial loss when a Court Reporter is held out of court to complete transcripts. Under the rationale of Gareh, the loss of income is “a financial penalty and therefore disciplinary.” To be sure, it is not one of the traditional forms of discipline, but it is nonetheless a form of discipline with financial consequences. Therefore, based on Gareh, I cannot agree with the Ministry that it has not taken disciplinary action in regard to Court Reporters’ preparation of transcripts.

I also find the fact that the Ministry may unilaterally reassign the production of a transcript to be significant. It is significant because it demonstrates the Ministry’s control over the transcript process. If the transcript work truly belonged to the Court Reporter, the Ministry would not have the power to reassign it unilaterally. They would have no ability to do so. Yet the evidence shows that the Ministry can, and has, reassigned transcripts without the Court Reporter’s consent.

All of this - the fact that Court Reporters must produce transcripts as part of their job as Court Reporter, are evaluated, may be disciplined or even terminated in regard to transcript production, and the fact that transcript work is monitored by the Ministry and may be unilaterally taken away by the Ministry undermines the Ministry’s contention that it does not maintain an employer/employee relationship with Court Reporters in relation to transcript production. The Ministry argues that it functions as a “coordinator” on behalf of the courts, the Crown and private litigants, but the evidence establishes that the Ministry’s function and power is significantly greater.

Certainly, it is true that the judiciary also maintains control over the timeliness of transcripts and has issued orders, directed at Court Reporters, to ensure the completion of transcripts. The judiciary’s role, however, is not exclusive and does not negate the Ministry’s involvement.

The Ministry argues, however, that historically, Court Reporters have not been paid by the Ministry to prepare transcripts. They are paid solely to take the record. It argues that, historically, the preparation of transcripts has never been viewed as bargaining unit work and has existed independently governed by regulation and tariff.

The evidence is not nearly so clear. The historical practice regarding whether Court Reporters have been paid to type transcripts is decidedly mixed, and varies from court house to court house. There is significant evidence that Court Reporters have regularly prepared transcripts during work time and have been paid wages, as set out in the collective agreement, for doing so. This includes their being scheduled out of court to type as well as typing during “down time.” I would also note the one of the agreed facts in the case of OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General (1988), T/0064/84 (Picher), was that “[s]taff reporters [classified court reporters] can type up transcripts during their regular working hours and thereby receive both salary and transcript fees for the same period of work.” This agreed fact is consistent with the evidence in this case.

The Employer argues that the fact that it has allowed Court Reporters to type transcripts during the work day does not mean that it required them to do so and does not convert their independent work into bargaining unit work. The practice, however, of allowing transcript work – whether typing or related work – goes beyond simply “allowing” Court Reporters to do this. There was evidence that Court Reporters have been “scheduled” to type at work. Further, in many courts the practice of allowing Court Reporters to type and perform transcript-related tasks during down time is routine and extensive.

There is also evidence, however, that the converse is true – that Court Reporters prepare transcripts on their own time and were not able to do so at work. That is what led to the original group grievance. According to Ms. Clarke, she was never allowed to type transcripts while at work. Ms. Coombs testified that her ability to type transcripts at work in Milton stopped in 2003. One of the agreed upon facts in the Tribunal decision, cited above, states that freelance court reporters (now unclassified court reporters) “are occasionally paid their hourly rate while typing up transcripts, but they are usually required to do this typing after scheduled working hours.” Again, this agreed fact is consistent with the evidence in this case.

There was no attempt, by either party, to provide an accurate picture concerning typing transcripts during work hours. It appears that some courts allow it and some do not. There was no evidence, by either side, of the percentage, on average, of transcript work that must be done on Court Reporters’ own time versus work time. The evidence was inconclusive. I would agree, however, with the Ministry, with the exceptions noted above, that the general expectation is that Court Reporters are to prepare transcripts on their own time and are paid a tariff for that work, not wages. Further, logically, particularly for unclassified Court Reporters, a great deal of transcript work is done on non-work time. At present, there are far more unclassified court reporters than classified ones.

One of the most difficult questions in this case is the impact – the legal significance - of that fact on the issue of whether the preparation of transcripts is bargaining unit work. Does this general practice and expectation define the scope of what is bargaining unit work? Or, is bargaining unit work defined by the work required of and performed by bargaining unit employees? How does one determine whether the preparation and certification of transcripts is “work that is normally performed by bargaining unit employees?”

Basic labour law provides for a union to have the exclusive right to represent employees in the bargaining unit. In this case, the Court Reporters are “employees” of the Ministry. They are part of the bargaining unit represented by OPSEU, as set out in CECBA and the collective agreement. The Union has a statutory right to represent Court Reporters in regard to their terms and conditions of employment for the work they perform. Consequently, I conclude that bargaining unit work must be defined by the work required of and performed by bargaining unit employees. To rule otherwise would undermine the representation rights of OPSEU in regard to the Court Reporters.

The work required and performed by Court Reporters does not consist solely of taking the record. It includes preparation and certification of the transcript. To not recognize the Union as the exclusive representative of the Court Reporters for that second part of the job violates the Union’s statutory and collective agreement rights. This is true even through the Ministry has not bargained individually with the Court Reporters but has set their terms and conditions of employment through regulation. The Union’s status as exclusive bargaining agent requires the Ministry to bargain with the Union in regard to the work performed by the Court Reporters. Re Regional Municipality of Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Association, supra; Re Loyalist College of Applied Arts and Technology and OPSEU, supra.

The fact that, historically, the parties have not bargained over this aspect of the Court Reporters’ work does not forever preclude the Union from raising this issue, or limit the scope of what is bargaining unit work. In the first ruling in this case concerning the timeliness of the group grievance, I determined that the group grievance “alleges an ongoing failure to comply with the overtime requirements set forth in the collective agreement” and was therefore a “continuing grievance.” The Union policy grievance alleges that “[t]he work associated with the preparation and production of transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies.” It alleges an ongoing failure to comply with the collective agreement, including the recognition clause and the wage and overtime provisions, among others.

The idea behind a “continuing grievance” is that a union which does not challenge an alleged violation of the collective agreement immediately, or even for a significant period of time, does not lose the right to challenge it if the allegation involves a “recurrent obligation” or a “recurrent duty” under the collective agreement, as opposed to a single incident with ongoing consequences. The wage and overtime provisions are “recurrent obligations”, as is the recognition clause. As a result, with certain exceptions, the Union’s failure to challenge the Employer’s actions does not preclude it from doing so. It also does not serve to amend the scope of what is bargaining unit work.

Significantly, the Employer did not contend that the Union abandoned its bargaining rights in relation to the preparation of transcripts.¹ It asserts the Union has no such rights in this case.

In my view, the Employer could not have contended that the Union abandoned its bargaining rights. Terms and conditions of employment have been negotiated by the Union on behalf of Court Reporters. They were not, as a group, “abandoned” by the Union, thereby potentially negating the Union’s right to represent them. As noted, the Union has the statutory and contractual right to represent them.

Instead, for a substantial period of time the Union may be said to have accepted the compensation terms established by the tariff. Indeed, during closing arguments, counsel for the Union stated that the Union did not complain until 1990/1991 because the majority of employees were typing transcripts at work and received the tariff, a “special bonus”, so there was no issue. In an earlier ruling in this case, I concluded that “there clearly was acquiescence by the Union during the period from 1996 to August 2003.”

The situation is akin to a union which has not negotiated over safety matters because it is satisfied with the statutory protections and provisions of the Occupational Health and Safety Act. The fact that the union did not negotiate safety issues for a period of time does not preclude it from doing so. Likewise, the fact that, historically, the Union has not sought to negotiate regarding the preparation of transcripts, leaving compensation to the tariff, does not preclude it from doing so and does not mean that the preparation of transcripts is not bargaining unit work.

The decision in Canadian Waste Services Inc. and U.S.W.A., Local 343-6, supra, relied on by the Ministry is distinguishable. In that case, the union, which represented employees in the collection of residential waste, alleged that the employer improperly contracted out residential recycling work. The arbitrator dismissed the grievance, concluding that residential recycling had never been work performed by members of the bargaining unit. It was not the same work as residential waste and was a separate form of business, using different equipment.

The decision is distinguishable because, in that case, the employees performing recycling work were not the same employees that collected residential waste, and bargaining unit employees had not performed that work or similar work in the past. In this case, the employees taking the record and producing the transcript are one and the same, and both aspects are part of the same job.

The Employer asserts, however, that although transcript preparation is performed by Court Reporters, it was not done by Court Reporters as bargaining unit employees. Instead, it argues that they have done this work as independent contractors. In its submissions, the Union acknowledges that even if transcript production is bargaining unit work, the question becomes whether that work has been properly contracted out. For the reasons set forth below, I conclude that when the Court Reporters prepare and certify transcripts, they do so as employees, not independent contractors.

The pivotal case on this issue is the decision of the Labour Relations Tribunal in OPSEU and Ontario Union of Court Reporters and Ministry of the Attorney General, T/0064/84 (P. Picher), issued on September 20, 1988. That case involved a determination of whether free-lance court reporters were “Crown employees” under CECBA, or independent contractors as alleged by the Ministry.

The Tribunal determined that the freelance court reporters could be divided into three categories:

1. Freelance court reporters who work exclusively for the Ministry;

2. Freelance court reporters who, with the permission of the Ministry, make their services available to clients other than the Ministry;

3. Freelance court reporters who freely make their services available to other clients.

All three groups were found to be “employees”, not independent contractors.

The facts, which were submitted by way of an agreed statement of fact, were remarkably similar to the evidence in this case. They state that the Court Reporters obligation “is two-fold: 1) the making of the record in Court; 2) the production of transcripts therefrom as required.” They were “subject to the direction of the Chief Justice or Chief Judge of a Court, and to a presiding Judge or Master while the Court is in session.” The Ministry had published “a manual of Court Reporting” to maintain uniform standards, which was “a comprehensive guide to the Acts and Regulations governing Court reporting and is continually updated by revised pages and by directive memos issued from the Manager to Court reporters in general.” They were subject to sanctions by the Ministry for failure to follow these requirements. Sanctions included assignment to less desirable courts, removal from the preferred list, removal from the qualified list, failure to receive favourable consideration for classified positions and admonition by the Court Administrator in respect of conduct or decorum.

In regard to transcripts, the agreed facts state that “if a transcript is required the typing may or may not be done at either government offices or at the home of the freelance reporter; in any event payment is made on a per page basis…” Rates of pay were fixed by regulation. Further in regard to transcripts, the facts provided as follows:

23. [A]ll Court Reporters (whether staff or freelance) are obliged by regulation to type up requested transcripts and to charge the transcript fee set by regulation. Staff reporters can type up transcripts during their regular working hours and thereby receive both salary and transcript fee for the same period of work. Freelance reporters, except those that work exclusively for the Ministry, have to type transcripts at times when they are not receiving any other payment. Such typing may be done either at the home of the freelance reporter or at the Court facility. Freelance reporters employed exclusively by the Ministry are occasionally paid their hourly rate while typing up transcripts but they are usually required to do this typing after scheduled working hours. Many freelance reporters use equipment owned by the Provincial Government which includes records, transcribers, steno-masks, steno-typers and steno-books.

24. All Court Reporters are given access to Ministry photocopiers for making transcript copies, and all reporters must pay a usage charge of five cents per impression for those copies. The printing of transcripts for appeals is done for the Ministry of Government Services and reporters are not charged for such printing whether they be staff reporters or freelance reporters.

The Tribunal applied a number of tests for determining independent contractor status, as set out in an earlier decision involving the employee status of court interpreters, clerks, bailiffs and staff at Small Claims Court in OPSEU and Ministry of the Attorney General, T/55/84 and T/65/84 (P. Picher), issued June 24, 1988. These tests included the control test, the fourfold test (control; ownership of tools; chance of profit and risk of loss); the ‘whose business is it’ test; the organization test, the statutory purpose test and the Algonquin List.

In terms of the first group of freelance court reporters, the Tribunal concluded that they exhibited none of the hallmarks of independent contractor and “bear all the earmarks of employees.” The Tribunal stated at p. 13:

They are not carrying on their own businesses for themselves but rather are performing court reporting tasks to enable the Ministry to fulfill its legislative mandate of superintending the administration of the courts. … In addition, these court reporters are subject to the direction and control of the Ministry. They work full time and exclusively for the Ministry….at an hourly rate that is set by regulation. Failure to attend at work on a regular basis and to perform work properly will result in the imposition by the Ministry of specific itemized sanctions. As well they are subject to memos of a directive nature that are issued by the manager to the court reporters and are inserted into the Manual of Court Reporting. If they fail to act they are subject to sanction by the Ministry. …. They are not at liberty to establish their own policies and procedures to enhance their service as they see fit. They are obliged by regulation to type up requested transcripts and to charge a transcript fee set by regulation. There is little evidence of entrepreneurial activity. They have one relationship with one “purchaser” and not a number relationships with diverse purchasers as would be expected of an independent contractor.

The Tribunal concluded that “[t]hey are employed in the service of the Crown and are employees within the meaning of C.E.C.B.A.”

In terms of the second group, they, too, were determined to be “employees”. They were “subject to the Ministry’s control over the manner and means of the performance of the work” and “are not carrying on independent business of their own as would be the situation for an independent contractor but rather are part of the Ministry’s business of administering the courts.” In the Tribunal’s view, they were integrated into the Ministry’s business and many used equipment owned by the Ministry. The Tribunal concluded at p. 16:

Given the high degree of control exerted by the Ministry over the manner in which their work is done, given the restrictions placed on their ability to do work for clients outside of the ministry, given their substantial integration into the Ministry’s business of administering the Courts, we must conclude that the court reporters in the second group are employees, not independent contractors, notwithstanding that they do not work exclusively for the Ministry.

For similar reasons, the third group of freelance court reporters were also found to be “employees”.

Although this case did not determine whether the preparation of transcripts was bargaining unit work, the Tribunal did consider the freelance court reporters’ role in regard to transcripts in determining whether they were “employees” or independent contractors. It is highly instructive in determining whether the preparation of transcripts is the work of the Court Reporters as “employees”, as argued by the Union, or “independent contractors” as argued by the Employer. Given the similarity of the facts in that case to the facts in this one, I find that all of the conclusions of the Tribunal are equally applicable here.

The case law supplied by the parties review the tests used by arbitrators and labour relations boards in determining “independent contractor” status, and they include the tests utilized by the Tribunal. In 671122 Ontario Ltd. and Sagaz Industries Canada Inc. et al. 2001 SCC 59, [2001] 204 D.L.R. (4th) 542 (S.C.C), the Supreme Court of Canada outlined the tests for determining whether a person was an employee or an independent contractor, in a vicarious liability situation, and included the tests utilized by the Tribunal. In a decision by Justice Major, the court determined that “[a]lthough there is no universal test to determine whether a person is an employee or an independent contractor…[t]he central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account.” He continued:

In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.

Also significant was the “organization” or “integration” test, in that “under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business, whereas, under a contract for services, his work, although done for the business, in not integrated into it but is only accessory to it.”

Entrepreneurial activity – seeking and servicing other clients – has also been considered. Re Toronto Star and Southern Ontario Newspaper Guild, supra; Sands v. Canada (Minister of National Revenue – M.N.R.), supra.

Under all of these tests, I conclude that the Employer has failed to sustain its onus that the Court Reporters are independent contractors when they prepare transcripts. The preparation of transcripts is essential to the Ministry’s role in superintending and administering the courts. Transcript production holds a key place in the administration of justice in Ontario. Court reporters are integral to this task.

The Ministry exerts substantial control over the manner and means of performing the work. It is true that the “manner and means” of transcript work, as set out in the various manuals, is the product of legislation, regulations, practice directives and policies. Yet the Ministry enforces the manual, and this constitutes control. In OPSEU and Ministry of the Attorney General, T/55/84 and T/65/84 (Picher), the Tribunal addressed the issue of whether clerks, bailiffs and other staff who worked in the Ontario Small Claims Court were “employees” or independent contractors. The Tribunal ruled that they were “employees”, and rejected the Ministry’s argument that the controls placed on the clerks and bailiffs through legislation, rules and uniform policies and procedures, designed to promote uniformity and universality in the court system should be distinguished from the traditional control tests that have been used to distinguish employees from independent contractors. There, as with the Court Reporters, the Ministry had created a detailed manual which elaborated the rules and set out the various policies and procedures which had to be followed. The Tribunal stated, at pp. 18-19:

The Ministry of the Attorney General exercises substantial control …over the manner and means by which the clerks and bailiffs perform their work…. The Ministry of the Attorney General has published a detailed Manual which elaborates the rules and sets out policies and procedures that must be followed by all the court offices in providing their services. … The clerks and bailiffs are not at liberty to establish their own policies and procedures to enhance service as they see fit. They must follow the dictates set by the Rules Committee and published in the Manual. … There is minimal freedom for the clerks and bailiffs regarding how they perform their work. The scope for creativity is tightly limited. …

The same type of control is evident in the case of Court Reporters.

The Ministry monitors the production of transcripts and evaluates Court Reporters on their production. It can “discipline” (keep a Court Reporter out of court) and even terminate for failure to produce proper transcripts. The fact that this power is not used is irrelevant. What matters is that the Ministry has the power to do so.

The evidence shows, moreover, that the Ministry has created two “certified” panels for Court Monitors, the “A” and “B” panels. The “A” panel grandfathered in Court Reporters who prepared transcripts in the prior year. The “B” panel is for new Court Monitors after they have been trained to prepare transcripts and are deemed “qualified” by the Ministry. The Ministry has the power to place Court Monitors who are deemed qualified on the “B” list. Presumably, the Ministry can also remove Court Monitors from this list. This is exactly the same type of sanction that the Tribunal noted that the Ministry possessed in determining that the freelance court reporters were “employees”, not independent contractors. Likewise, the Ministry can impose other sanctions that the Tribunal relied upon, such as reassign a court reporter to a less desirable court and admonish the court reporter in respect to their conduct or decorum.

Further, the Court Reporters’ transcript work is exclusively from the trials they are assigned to by the Ministry. They do not perform other transcription work independent of these trials. This is true for both the classified and unclassified court reporters since the “on call, as required” relationship leaves little possibility for other work. This situation substantially limits the Court Reporters’ “chance of profit and risk of loss.” Further, the Ministry assists with the collection of transcript fees and when a problem arises, the Ministry acts as a “middle man” and engages in a “customer service” function to address the issue.

The Ministry asserts that the Court Reporters have numerous clients – the judiciary, the Crown, defense counsel and private parties. The evidence showed that the Ministry essentially orders and pays for transcripts on behalf of the judiciary. As Mr. Uhlmann stated, “for all intents and purposes, it is the Ministry that orders the transcript on behalf of the judiciary.” The Ministry is also very involved in that process in regard to the Crown Attorneys. But more importantly, the Tribunal’s conclusion that Court Reporters “have one relationship with one ‘purchaser’ and not numerous relationships with diverse purchasers” is still true. This clearly refers to the fact that transcript orders arise solely from their work in the courts, not from other sources. So, they may have numerous “clients” but all of the work stems exclusively from their job as a Court Reporter in the courts.

The Court Reporters do not have the freedom to reject a transcript order, or work only when they wish. They have no control over the amount of transcript work they receive and can not solicit such work. Although they can hire typists to help them type, they must certify the transcript. That function cannot be delegated. The Court Reporters are not entrepreneurial – they do not self-promote, advertise, solicit clients or business. The Ministry provides many of the tools, supplies and equipment used by the Court Reporters. The Ministry supplies the paper, the covers, the binder and binding. The Ministry assists with taking the orders, collecting the deposit, obtaining the right tapes and logs, delivering the transcript and collecting the fees. Court Reporters cannot determine the fees charged for their services, and are required by the Ministry to conform to the tariff. All of these factors demonstrate that the preparation of transcripts is not performed by “independent contractors” as the Ministry asserts.

.The Ministry also asserted that the Court Reporters can negotiate aspects of transcript production with the client. Counsel for the Union suggested, in closing argument, that calling what transpires a “negotiation” is a stretch, and I agree. The evidence showed that the only aspects that may be negotiated are when the transcript is to be done, and even then there are requirements and deadlines that must be followed, and the method of delivery, although most transcripts are picked up by the ordering party at the court house. There are gaps in the tariff but the evidence showed that the Court Reporters have no room to negotiate matters not covered by the tariff such as an expedite fee or a transcript on disk. Some of the witnesses might believe that they had the power to determine these things, but the evidence shows that they do not. The Ministry’s position is that the Court Reporters may only charge what is in the tariff and that it is illegal to do otherwise.

The fact that the Court Reporters, in their tax returns, describe themselves as receiving “professional” or “business” income from court reporting is not dispositive of this issue. The Court Reporters must, by law, report all of their income. After the early 1990s, the Employer no longer paid the Court Reporters transcript fees for the judiciary and Crown on their paycheques and T4s, but issued T4-A forms. Other than “employment income”, for which they received a T4, they had no choice but to list their court reporting income as professional or business income. Having done so, they were entitled to the deductions permitted by law for expenses incurred in earning that income. That does not make them “independent contractors” any more than their testimony that they did not view themselves as having a separate “business” makes them “employees”. The issue is one of fact. Sands v. Canada (Minister of National Revenue – M.N.R.), supra. The facts of this case indicate that Court Reporters are employees, not independent contractors.

In this regard, I do not find the determinations of the WSIB and Revenue Canada which were provided at the hearing to be particularly useful, and both sides agreed they were not binding on me. OPSEU (Villella) and Ministry of the Solicitor General & Correctional Services (1997), GSB No. 1662/96 (McKechnie).

Because of my conclusion that Court Reporters are employees when preparing transcripts, not independent contractors, I do not need to rule on the Union’s alternative arguments that the Court Reporters are “dependent contractors” or on its contentions concerning the conflict of interest regulations.

Conclusion

1. I determine that the preparation and certification of transcripts is bargaining unit work of the Court Reporters, and so declare.

I wish to emphasize that, at this point, I am only deciding whether the preparation and certification of transcripts is bargaining unit work. All issues regarding the implications of this finding are referred back to the parties, and I will remain seized.

Issued at Toronto this 27th day of July 2006.

Footnotes

1. 1Rather, in its earlier motion to dismiss, the Ministry argued that the Union had abandoned the 1990 grievances and could not thereafter grieve the same issue. That is a completely different argument. The Employer raised the same argument in closing. In light of my earlier decision, I need not address it here.