GSB#2008-1407

UNION#2008-0340-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Allin et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Revenue)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers & Solicitors

FOR THE EMPLOYER

Benjamin Parry Ministry of Government Services Counsel

HEARING

March 2, 2009, June 5, 2009, July 27 & 31, 2009, November 4 & 17, 2009, December 11, 2009, January 27, 2010, March 30, 2010.

Decision

1The Board is seized with a group grievance dated April 16, 2008 filed on behalf of six employees employed as Investigators in the Tobacco Tax Section, Special Investigations Branch of the Ministry of Revenue. They grieve that "the employer is in violation of Article 2 and Article 8.1.1 of the Ontario Public Service (OPS) Collective Agreement. The employer changed the nature of the position by reassigning the criteria for investigations from $ 25,000 to $ 250000, thereby, in effect, changing the nature of our position from an FO 5 (Investigators) to temporary assignments as AFA 20 (Senior Investigators)". The AFA 20 position was created in January 2004. The gist of the grievance is that since that time the grievors had been temporarily assigned to perform duties of the AFA 20 position but not remunerated at the AFA20 rate as required by article 8.1.1.

2The Special Investigations Branch consists of a number of sections including the Tobacco Tax Section ("tobacco") and the Retail Sales Tax Section ("RST"). Both these sections employ Investigators classified as Financial Officer 5 (hereinafter "FO5") and Senior Investigators classified as Financial Administrator AFA20 (Hereinafter "AFA20"). FO5s are in the OPSEU bargaining unit, and AFA 20s in the AMAPCEO bargaining unit.

3Article 8.1.1 provides:

Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again.

4The union submits that in January 2008, the grievors became aware for the first time that since the creation of the AFA20 position in January 2004, the employer had made a significant distinction between the work of the two groups based on the tax value of files assigned to them. Files of a tax value of up to $ 25,000 were considered to be FO5 work, while files with a value in excess of $ 25,000 were considered AFA20 work. The union claims that sometime late in 2007 the employer changed the value limit from $25,000 to $250.000. It claims acting pay for the grievors up to that date, on the basis that they had performed duties which the employer at the time considered to be AFA20 work, i.e. files with a value exceeding $ 25,000.

5The union also asserted that some FO5s in RST were formally granted temporary assignment as AFA 20 and paid in accordance with article 8.1.1. The grievors were assigned AFA20 duties, but article 8.1.1 was not applied to them. The union alleges that the differential treatment was motivated by management's desire to appoint certain individuals in RST into permanent AFA20 positions, and submits that this constitutes an exercise of the employer's management rights under article 2 in a manner that was arbitrary, discriminatory and in bad faith.

6This decision deals with a non-suit motion made by the employer at the conclusion of the union's case following testimony by four of the grievors, Collin Taggart, John Allin, Colm Doyle and Steve Irons.

7The parties filed a number of decisions of the Board in which the principles that apply in determining non-suit motions are reviewed. In Re Whan, 2003-3446 (Dissanayake), in dismissing the motion, the Board noted that the parties were not in disagreement as to the following principles:

1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.

2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.

3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.

4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.

5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.

7. Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.

8In several other decisions, the Board had considered the appropriate test to be whether "some evidence" exists to support the claim, as set out in 3 above. See for example Re Dhanju, 2004-1101 (Dissanayake) and Re Beltrano et al, 2003-3597 (Petryshen). In Re Whan the parties were in agreement on the applicable agreement principles set out therein. In all of the cases where the "some evidence" standard was set out, there is no analysis of the law. In Re Dhanju, (supra) the only Court decision put before the Board was the Divisional Court decision in Cahoon. Therefore, it does not deal with the apparent conflict between Cahoon and the Court of Appeal decisions considered in Re Gareh and the decisions that followed it. In these cases, the distinction between "some evidence" and "sufficient evidence" was not argued before the Board, and the decisions do not include an analysis of that issue.

9I conclude that the correct law is that set out in Re Gareh, 1665/98 (Brown), which has since been followed in decisions such as Re Sager et al 2000-0377 (Mikus) and Re Gauntlett 2006-0659 (Gray). In these cases the distinction was directly before the Board. In Re Gareh (supra), the Board was faced with two Court of Appeal decisions which applied the standard of "sufficient evidence", and a Divisional Court decision which appeared to apply a lower standard of "some evidence". Vice-Chair Brown at pp.4-7 wrote as follows:

The standard of "sufficient" evidence was adopted by the Ontario Court of Appeal in Hall v. Pemberton (1974), 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438, page 439, where the Court quoted with approval the following passage from Parfitt v. Lawless (1872), 41 L.J.P.&M. 68:

I conceive, therefore, that in discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue. (pages 72; emphasis added)

The only reasonable interpretation of "sufficient to support the issue" is adequate to allow a jury to rule in favour of the party resisting the non-suit. In other words, a judge ruling on a non-suit motion in a jury trial, assuming witnesses to be credible and making all reasonable inferences in favour of the party resisting the non-suit, must determine whether the evidence is "sufficient" in the sense that it could lead a properly instructed jury to rule in favour of that party.

The standard of "sufficient" evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985) 1985 CanLII 2248 (ON CA), 56 O.R. (2d) 160:

In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her Hall v. Pemberton ... (page 167; emphasis added)

In advocating a lower standard of "some evidence", counsel for the union relies upon the decision of the Divisional Court in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit brought by the union in that case. The Court wrote:

The Board began by setting out its understanding of a non-suit. While it held that a prima facie case had not been made out, its reasons make it clear that it believed a prima facie case had to be established on the balance of probabilities. This is, of course, incorrect. ... The standard of proof on a non-suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer.

A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a question of law. Sopinka, The Trial of An Action, p. 124 (Butterworths).

The "normal way" in a civil action would be on the balance of probabilities. Where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not. (emphasis added)

The Divisional Court's comment that a motion for non-suit should be dismissed if there is "some evidence to support the claim" must be interpreted in the context of the immediately preceding passage from Sopinka's The Trial of an Action saying the issue to be determined by the judge is whether "no jury acting judicially could find in favour of the plaintiff". Based upon the Divisional Court's apparent approval of this passage, I understand the Court's reference to "some evidence to support the claim" to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party's witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of "sufficient" evidence utilized by the Court of Appeal in the Hall and Gallant cases.

In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

10I adopt the foregoing as the standard that applies. Thus the instant motion must be upheld if the union has failed to adduce evidence sufficient to support its claim. In assessing sufficiency, the Board must determine whether the union has proven its case on a balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the union's favour.

The Evidence

11Substantial evidence was led by the union to establish that the tax value limit for assignment of tobacco tax files was changed from $ 25,000 to $250,000 only in late 2007 or early 2008, and not in 2005. I will not review that evidence, but will assume for purposes of this motion that the union's position is correct.

12The position description for FO5 sets out the "Purpose of Position" as follows:

To conduct investigations involving non compliance and/or frauds relating to evasion of tax and/or obtainment of grants or subsidies under all statutes administered by the Tax Revenue Division and under the Criminal Code of Canada, as a Provincial Offences Officer and/or a Peace Officer, in order to prosecute individual or corporate violators.

To lead and coordinate the intelligence process. To provide advice, recommendations and identify problems and issues arising from the collection and analysis of intelligence, analyse options and prepare reports.

To collect, process, analyse and disseminate intelligence information to determine enforcement trends and develop enforcement projects and strategies.

In comparison, the position description for AFA20 sets out the "Purpose of Position" as follows:

To plan and conduct investigations of the most complex or sensitive cases and projects involving non compliance and/or frauds relating to evasion of tax and/or obtainment of grants or subsidies under all statutes administered by Tax Revenue Division and under the Criminal Code of Canada, as a Provincial Offences Officer and/or a Peace Officer, in order to prosecute individual or corporate violators. To provide leadership and guidance to investigative staff and teams. To identify and assess staff training needs, participate in the development of training modules and deliver technical and legislative training sessions.

13The respective position descriptions list a large number of duties and responsibilities. The FO5 position description includes the following in relation to investigations:

Planning, leading, and conducting investigations, search and seizure actions, obtaining evidence by ensuring proper collection, custody, control and identification;

locating, interviewing or interrogating informants, third party witnesses, suspected violators and/or their legal/financial representatives; obtaining and evaluating information on alleged violators; liaise with external agencies on joint investigations; conducting surveillance operations.

The AFA20 position description includes:

• Conduct investigations of the most complex or sensitive cases, execute and lead staff in search and seizure actions, securing evidence by ensuring proper collection, custody, control and identification; locate, interview informants, third party witnesses, suspected violators and/or their legal/financial representatives; obtain and evaluate information on alleged violators; liaise with external agencies on joint investigations; conduct and lead surveillance operations.

• Conduct and lead the development, planning and implementation of projects as assigned.

The very first two paragraphs, listed under the AFA20 duties and responsibilities, (hereinafter be referred to as the "leadership" and "training" duties respectively) are as follows:

-Provide mentoring, leadership and guidance to staff in the office and in the field. Plan/direct/monitor and analyse work in progress, conduct reviews of completed work, assess capabilities/performance of work assignments, provide constructive feedback to staff and notify management if standards are not met. Supervise staff, provide input to management in the preparation of performance evaluations and recommend merits, approval of various leave requests and participate on interviews as a technical expert.

-Identify and assess the implications and timing of short and long range training plans/objectives and recommend to senior management the most appropriate strategy to ensure the best delivery and ongoing maintenance of an effective enforcement program. Develop, deliver and participate in training sessions, course, presentations, workshops and seminars. Actively participate in the development and maintenance of branch manuals.

14Grievor Mr. Collin Taggart has been employed as a FO5 in Tobacco since January 2005. He testified in chief in great detail about the duties he performed, with reference to the duties listed in the FO5 position specification. He agreed that the position specification accurately sets out the work he did.

15Union counsel referred Mr. Taggart to the "Purpose of Position" portion of the AFA20 position description, which provides that AFA 20s investigated "the most complex or sensitive cases", and asked him whether he was aware what makes a case complex or sensitive. Mr. Taggart replied that based on what the Senior Manager Mr. Jim Thompson, stated at a meeting on March 8, 2008, and a file criteria from the employer disclosed at the stage two meeting, he was aware today that the dollar value of the file, and qualitative factors can make it a complex or sensitive file. As examples of qualitative factors, he referred to files where politicians are involved; where multiple entities are involved; where no records are available; and where the person or business being investigated is not registered. When asked whether as a FO5 he had investigated complex or sensitive files, Mr. Taggart replied that he did a file linked to organized crime, and several where first nations people were charged, which he considered to be complex or sensitive.

16In chief, Mr. Taggart was asked whether AFA20s carried out the function "To identify and assess staff training needs, participate in development of training modules and deliver technical and legislative training sessions" as listed in the AFA20 position description. He replied that he was not sure who designed the training, but that to his knowledge AFA20s did not do that. However, Mr. Taggart testified that AFA20s "periodically delivered some parts of the training" to new employees, and that when he started some of his training was done by AFA20s.

17Mr. Taggart testified that FO5s are "always there to help a colleague", and if a colleague "did not know that to do", he would show him. He considered that to be "training". In his view therefore, FO5s also performed training duties.

18Union counsel asked Mr. Taggart whether AFA20s performed the "mentoring, leadership and guidance to staff" function as set out in their position specification. Mr. Taggart replied, "Yes. Its part of the training they do". He testified, however, that as a FO5 he also did mentoring, and elaborated that if a fellow FO5 had a question, he would answer and if a FO5 did not know how to do inventory, he may show him if a AFA20 was not available.

19When asked whether AFA20s did the rest of the duties listed in the "leadership duties" paragraph, he stated, that he questioned whether AFA20s supervise staff, and that he was not aware that they had input in the preparation of FO5 performance evaluations or that they recommended merit increases. He added that the latter duty could not exist because "in OPSEU merit increases are automatic".

20When asked whether AFA20s "plan/direct/monitor and analyse work in progress and conduct reviews of completed work", Mr. Taggart replied, "I think they do review. Some senior managers also review FO5 work. I hand in my work directly to my senior manager".

21Union counsel asked Mr. Taggart whether AFA20s did the duties listed under the "training duties" paragraph. He replied, "I'd say some of them do. I don't think every AFA20 is involved in all of those things", and added "I think now development of manuals is done by a committee which includes a senior manager, a AFA20 and a FO5". With regard to investigations, Mr. Taggart agreed that AFA20s did complex or sensitive cases and led staff in the activities listed, but added that AFA20s also did investigations which were not complex or sensitive. He said that a AFA20 "can be assigned a file with a $5,000 value and no complexity/sensitivity attached". Mr. Taggart testified that if the reference to "complex or sensitive" is deleted, that paragraph in the AFA20 position specification would be applicable to a FO5. The AFA20 position description sets out as a duty "conduct and lead staff in examining and analysing all evidence ". Mr. Taggart stated that he was not sure, but added "I guess they can lead staff in that". Mr. Taggart was asked to comment whether a number of other duties listed in the AFA20 position description, equally applied to a FO5. Mr. Taggart testified that some did. With regard to other duties, he testified that FO5s did them except that FO5s did not "review" work of other staff, did not "coordinate and lead" and did not "mentor staff".

22Mr. Taggart defined "a project" as "a file bigger than a regular investigation with multiple targets and multiple locations". He agreed that projects are assigned to AFA20s, but added that Mr. Colm Doyle, a FO5, was given an acting assignment as AFA 20 for nine months to do a project known as "Project Bear". When asked whether the paragraph on "knowledge" in the AFA20 position description applied to a FO5, Mr. Taggart said that it did, except that FO5s were not involved in developing branch manuals, and he did not know what was meant by "co-ordinate and lead special projects". With regard to the paragraph on "judgement" in the AFA20 position description, Mr. Taggart stated that it equally applied to FO5s. He pointed to the provision that "complex matters can be discussed with the Branch Director" and commented that AFA20s did not do that, that AFA20s as well as FO5s first talked to the senior manager before discussing with the Branch Director. He also testified that AFA20s did not research and design training programs as stated because that was done by another unit.

23The AFA20 position description provides as follows under "Accountability":

Programs

Job is guided by the provisions of the tax statutes, related regulations, Criminal Code of Canada, precedents, policies, standards, program objectives as well as within investigative and legal processes. Care must be taken in identifying the need for and defining the extent and scheme of tax evasion and fraud (non-compliance) for all cases including the most complex and sensitive cases and projects. All work must be properly carried out and completed as required by the judicial process. Evidence must be presented coherently and must be properly assembled, translated and consolidated. The job requires the development of investigative strategies with the flexibility to modify them for complications and changes as they occur.

Human Resources

Provides leadership, guidance and mentoring to investigators and investigative teams. Position monitors and reviews work of investigators, identifies training needs, develops training material and presents training sessions.

Financial and Material

Ensure the efficient and effective leadership and guidance to investigators to provide the delivery of a quality enforcement program.

Impact of Errors

Insufficient research and analysis of evidence could negatively influence the general deterrent factor of the enforcement program and could lead to increased non-compliance and potential tax loss. Inadequate results could lead to the loss of public confidence in the integrity of the voluntary tax system.

24Mr. Taggart testified that the accountability for "programs" listed equally applied to FO5s. Under "Human Resources", Mr. Taggart said that AFA20s did not monitor and review work of investigators. The manager did that. As for identifying training needs, Mr. Taggart testified that anyone, AFA 20 or FO5, can "tell a manager if he sees a training need for himself or for the unit". Mr. Taggart stated that neither FO5s or AFA20s are accountable for developing training material because "there is a special person designated for that". As for presenting training sessions, Mr. Taggart testified that managers do ask AFA 20s for assistance in training new hires, but added that not all AFA20s do that.

25Mr. Taggart was asked whether FO5s were accountable, as set out in the ACA20 position description under Financial and Material", to "ensure the efficient and effective leadership and guidance to investigators to provide the delivery of a quality enforcement program". He replied "yes". When asked "how", he stated that "When we work with new hires, we take them with us on our investigations so they get experience." Mr. Taggart was of the opinion that FO5s had the same accountability as that listed in the AFA20 position description under "Impact of Errors".

26When union counsel asked Mr. Taggart to comment on the FO5 and AFA20 positions based on a comparative review of the duties, he replied that both were investigator positions, and that the only difference was that files above a certain tax dollar amount and files determined by the Branch to be complex or sensitive were assigned to AFA20s. He testified that there was absolutely no other difference in the work assigned to the two positions. Mr. Taggart testified that prior to January 2008, the only distinction, as far as he was aware, was that projects were only assigned to AFA20s or acting AFA20S. Prior to January 2008 he had never heard of a dollar limit for files that may be assigned to FO5s. While doing a training session for FO5s and AFA20s in January 2008, Ms. Tracey Down, a member of the AMAPCEO bargaining unit mentioned that two months earlier the limit for tobacco tax files assigned to FO5s had been changed to $ 250,000.

27In cross-examination, Mr. Taggart agreed that the posting for the FO5 position he successfully applied for, does not set out any dollar value limit. Questioned about the FO5 position specification, Mr. Taggart agreed that it sets out the purpose of the FO5 position, and the duties and responsibilities accurately, but added that he had not personally performed each of the listed duties and responsibilities. He was specifically asked, "Are there any duties and responsibilities you did, which are not identified here?" and he replied "no".

28Mr. Taggart confirmed that the "knowledge" set out in the position description was also accurate and that to perform his job he did not require any knowledge not listed. Mr. Taggart identified six areas which are omitted under "skills", but agreed that those are listed under the heading "duties and responsibilities". Having reviewed the FO5 position description Mr. Taggart agreed with employer counsel that "There is nothing you've done which is not listed here", that it does not refer to any value limit of files, and that he had seen other position descriptions which set out dollar value limits.

29Mr. Taggart confirmed that the manager is always aware of the information contained in all files assigned to him, and that as far as he knew, in practice the value limit of a file was not given any weight in assigning files. Mr. Taggart testified, however, that "later it became apparent that the practice was inconsistent with "branch policy". That caused him to initiate the grievance.

30Mr. Taggart agreed that a number of AFA20s were involved in the delivery of his training, after he was hired as a FO5. He agreed that AFA20s are assigned as mentors for FO5s, and that as a FO5, he had never been assigned as mentor for another FO5. However, he testified that he did mentoring of FO5s "in a certain way" in that colleagues sometimes come to him for advice, and sometimes he took new FO5s along on field work. Thus, he was of the view that he had responsibility for the development of new FO5s.

31Mr. Taggart agreed that as a FO5, he had never been required to comment on the development of another FO5, to review reports prepared by another FO5, or to provide input into performance appraisals of other FO5s. He was not aware whether those responsibilities are assigned to AFA20s, or whether AFA20s were involved in updating branch manuals or the development of manuals on-line.

32Despite repeated cross-examination, Mr. Taggart insisted that prior to the training session with Ms. Down in January 2008, he was not aware that any dollar value limit was used in assigning files to FO5s and AFA20s. As far as he was aware, the only files restricted to AFA20s were those involving projects. He conceded that management had the right to change the criteria for assignment of files. Mr. Taggart stated that after January 2008, when the grievors were informed of the change in the value limit to $250,000 they would not be entitled to assert that they were performing AFA20 duties, and therefore, have not sought remedies beyond that date.

33Grievor, Mr. John Allin testified that when he was appointed as FO5 in January 2005, a AFA20 was appointed as his mentor for a 2 year period. He testified that when he went on field work, the mentor was expected to accompany him. For a period, all crown briefs he prepared were reviewed by the mentor before being handed in. If he had a question on a file he would ask the mentor, but may also go to a FO5 with particular expertise on a subject. Very often he went to Mr. Doyle as a fellow FO5, because Mr. Doyle was very knowledgeable on tobacco issues. However, he did not view Mr. Doyle as a mentor since he was not appointed as a mentor. Mr. Allin testified that two newly hired FO5s frequently came to him with technical questions and he tried to help them out.

34Mr. Allin testified that during a tobacco staff meeting around April 2005, Mr. Stangarone made it "crystal clear" that the only difference between AFA20 work and FO5 work was that projects were done only by AFA20s. He stated that from November 2005, he had been aware that a dollar value was used in assigning files to FO5s and AFA20s in RST. However, he became aware of a dollar value being used in assignment of tobacco tax files only when Mr. Taggart told him of the information Ms. Down had conveyed in January 2008.

35Grievor Mr. Colm Doyle testified that at the time he accepted the AFA20 acting assignment to do Project Bear, he became aware that projects go only to AFA20s. He was not aware of a dollar value being used in assigning tobacco tax files until Mr. Taggart and Mr. Allin told him about what Ms. Tracy Down mentioned at the January 2008 training session.

36When asked whether as a FO5 he had provided training to other FO5s, Mr. Doyle answered "yes", and explained that he assisted new hires "on a daily basis". He testified that he was simply continuing the practice in the office, of more experienced FO5s helping out newly hired FO5s. However, he stated that all FO5s were equals and that a new hire did not have to follow his advice.

37Mr. Steve Irons, another grievor, has been employed with the Ministry for 30 years, from 1990 as FO5 in the Tobacco Tax section. He testified that at the meeting on October 2, 2006, Mr. Stangarone did not mention a $250,000 limit. He first became aware that any dollar value was used in assigning tobacco files to FO5s and AFA20, only when Ms. Down mentioned it. Until then he understood that the only difference in the files assigned to FO5s and AFA20s was that projects were only assigned to the latter.

38In cross-examination, Mr. Irons agreed that he was a FO5 at the time the AFA20 position was created in January 2004. He agreed that both before and after that time, as a FO5 he did any file assigned, except projects, regardless of its dollar value. He also agreed that his FO5 job description remained unchanged following the creation of the AFA20 position. That practice of assigning files, except projects, to FO5 regardless of the dollar value existed while Mr. Stangarone was his Senior Manager, and continued under Mr. Thompson after October 2005.

Submissions

39In support of his motion that the union had not made out a prima facie case that the employer had contravened article 8.1.1., employer counsel took the following positions:

(1) The grievors, at all times, were performing duties within their own FO5 position.

(2) If they did any duties outside their own position, those were not duties required of a higher classification.

(3) If some duties were duties of a higher classification they did not actually perform those.

(4) If the grievors establish that they actually were performing duties of a higher classification, the instant grievance is a disguised classification grievance and therefore inarbitrable.

(5) The grievance is nothing more than a "me too" claim.

40The union's position was that it has established a prima-facie violation of article 8.1.1, whether the "some evidence" standard or the "sufficient evidence" standard is applied. In substance, the union took the position that the evidence supports a prima facie finding that the grievors performed the core duties of the AFA20 position, when they did tobacco tax files which exceeded the $25,000 limit. Union counsel asserted that the evidence that the grievors did not perform other AFA20 duties, such as training, and mentoring, in the same manner as AFA20s did those, is irrelevant because those were not core duties of the AFA20 position. In addition, counsel asserted that the evidence establishes that in granting temporary acting assignments to FO5s in RST, while not treating the grievors similarly, the employer was motivated by a desire to favour certain individuals, and that it constituted an arbitrary, discriminatory and bad faith exercise of management rights. Finally, union counsel submitted that the grievors were not seeking a reclassification of their positions to AFA20, but were only attempting to pursue their right to acting pay under article 8.1.1.

DECISION

41At the outset I find that there is absolutely no evidence that the employer treated the grievors in an arbitrary, discriminatory or bad faith manner in not granting them temporary assignments as AFA20. The only evidence is that two FO5s in RST received such assignments, and that with that experience they subsequently obtained permanent AFA20 positions. While motivation to favour these individuals was asserted, there simply is no evidence to support that. Therefore, that aspect of the grievance fails for lack of a prima facie case.

42Next I turn to the issue of whether there is sufficient evidence to establish that the grievors were temporarily assigned to perform the duties of a higher classification within the meaning of article 8.1.1. The employer cited a number of decisions including the following : Re Noon, 111/81 (McLaren), Re Collins, 807/85, Re Farrelly, 424/86 (Draper); Re Bullock, 699/87 (Fisher); Re Bonner, 19/89 (Verity); Re Nichols, 778/89 (Knopf); Re Gervais 392/89 (Dissanayake); Re Decarie, 910/93 (Gray) and Re Barnier, 1062/98 (Abramsky).

43Re Collins, (supra), is cited often as setting out the conditions to be met for entitlement to acting pay. In interpreting the predecessor provision to the present article 8.1.1. which was materially the same in all respects relevant for the present purposes, the Board at p. 4 wrote:

Therefore the onus is upon the union to prove that the grievor was assigned to do a job temporarily; that the job was to perform duties of a position in a classification with the higher salary maximum; and that the job performed was for a period in excess of eight consecutive working days. If these three elements are proved the grievor is entitled to acting pay subject to the limitation referred to in article 6.4 which covers periods during which an employee is on vacation.

The first element that the union had to prove was that the grievor was assigned to a job which was not part of his own job.

The grievance was dismissed on the basis, inter alia, that the supervision duties the grievor performed did not go beyond the duties within his own job.

44In Re Bullock (supra), the grievors claimed that they were entitled to acting pay at the General Foreman rate for time they spent performing night patrol duties. Citing Re Collins, Vice Chair Fisher at p.6 concluded:

This Board therefore finds, on the evidence before it, that the functions performed by the grievors as Night Patrolmen is contained within their job specification and their class standards and therefore they have failed to pass the first test of the Collins case. Therefore, the grievance is denied.

45In contrast, in Re Bonner (supra), the Board concluded that the union met the first condition of the article because "the grievor was assigned to a teaching role that was not part of his regular job".

46In the present cast it is undisputed that neither the AFA20 or FO5 position description set out any dollar limit for files. Moreover, the evidence from the grievors was clear that they had not performed any duties not set out in the FO5 position description. The union's position was that regardless of the contents of the respective position descriptions, during the relevant period files with a tax value exceeding $25,000 fell outside the FO5 position and became part of the AFA20 position, by virtue of a branch policy that only AFA20s will be assigned files exceeding the $25,000 limit.

47There is sufficient evidence that the employer did consider the tax value of a file in assigning tobacco tax files to AFA20s and FO5s. The evidence is that at the meeting on March 8, 2008, Mr. Thompson's position was that he changed the limit from $25,000 to $250,000 back in October 2006, not that he did not use a dollar value. However, assuming that the change in the dollar amount was not changed until late 2007 or early 2008 as the union asserts, the evidence does not indicate that file assignment between the two groups was solely based on a dollar limit. To the contrary, the union's evidence is that throughout the relevant period, files with a value of less than $25,000 were routinely assigned to AFA20s. One grievor testified that a file with a value as low as $5000 may be assigned to a AFA20. Similarly, the evidence is that FO5s were routinely assigned files with a value exceeding $25,000. Under their position description AFA20s were responsible for "sensitive or complex" files. What the evidence suggests is that the employer considered the $25,000 value to be one of the relevant factors in determining whether a file fell within the "sensitive or complex" category. The evidence does not support a finding that the employer had a policy to the effect that any file which exceeds the $25,000 limit was necessarily beyond the scope of the FO5 position. Similarly the fact that AFA20s did files which had values of under $25,000 suggests that certain files may be considered sensitive or complex for other reasons, despite their low value. In fact, the union's evidence was that factors such as the involvement of politicians, multiple statutes, multiple locations or first nations could make a file sensitive and complex. The fact that the employer considered the $25,000 threshold in assigning files does not mean that the employer had a policy under which any and all files exceeding that value was beyond the scope of the FO5 position. Therefore, the union has failed to establish on a prima facie basis that the work in question was beyond the grievor's own job. Since the first condition of article 8.1.1 is not met, the grievance fails on that basis alone.

48However, if the Board's conclusion in that regard is wrong, and files over $25,000 are deemed to be outside the scope of the FO5 position, the grievance must still fail, because the union also fails to satisfy the second condition for the application of article 8.1.1, namely, that the grievors performed "the duties" of a higher classification.

49The Board has recognized that "in a temporary assignment there will seldom be a perfect fit". (Re Bonner, supra). Therefore, the Board has not required that for entitlement to acting pay under article 8.1.1, a grievor must have performed all of the duties of the higher classification claimed. The test rather, is whether or not the grievor performed the core duties or significant duties of the higher classification.

50The Board has also held, however, that under article 8.1.1 the performance of "a core duty" or "some core duties" is not sufficient. Thus in Re Barnier (supra) at p. 28, Vice-Chair Abramsky concluded:

The right to acting pay under Article 8.1.1 depends on whether the duties the grievors were required to perform were not part of the AFO job but were instead NFA duties and responsibilities. It also depends on whether the grievors were assigned to perform all of the significant or core duties of the NFA position. (emphasis added)

51This requirement was further addressed in Re Decarie (supra). There the union claimed that certain duties, referred to as PPSR duties, are classified as OA-6, a classification higher than the grievor's home position. It argued that acting pay is payable under the then article 6.1.1 "whenever an employee is assigned duties which are classified higher than the employee's home job". At pp. 10-11, Vice-Chair Gray wrote:

Having regard to the language of Article 6.1.1, the union must show that the grievor was "assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days" in order to succeed in this grievance. It is common ground that the grievor was assigned to perform PPSR functions for periods in excess of five (5) consecutive working days on a number of occasions between late 1989 and March 1993. There is no challenge to the union's assertion that these assignments were "temporary". The issue here, then, is whether on those occasions the grievor was assigned "to perform the duties of a position in a classification with a higher salary maximum".

It is clearly not enough to show that the duties assigned were not ones which the grievor ordinarily performed. Nor is it enough to show that the duties assigned fell outside the description in the Position Specification for her home position and must therefore have been the duties of some other position. The union must show that that other position was "a position in a classification with a higher salary maximum," and that the grievor was assigned "the duties" of that position. The parties used the words "the duties", and not just the word "duties". The Board's decisions have given effect to that distinction. Against the background of those decisions, the parties have continued to use that language in successive collective agreements.

52Following a review of the decisions in Re Noon, Re Collins, Re Farrelly, Re Bullock, Re Nichols, Re Gervais and Re Bonner, at pp. 21-22 Vice-Chair Gray wrote:

As we have noted, at one point in his argument the union's representative spoke of PPSR duties as being classified OA-6. It is positions that are classified, not their individual component duties. The classification of a position takes into account all of the duties and responsibilities of the position. Although PPSR duties were a major component of the OA-6 classified position of "Senior Clerk, P.P.S.R. and Companies" they were not its only component. Companies registration duties were also a significant part of that position.

The thrust of all of the decisions cited to us, including Bonner, is that an employee cannot be said to have been assigned "the duties" of a position (or classification) unless he or she had been assigned all of its significant duties. We agree with that approach. A job which includes some but not all of the significant duties of a particular position may or may not fall within the same classification as that particular position, but it will not be that position.

At p. 23, the Board concluded as follows:

Even on that view, however, and assuming in the union's favour that the assignments in question went outside the Position Specification for the grievor's Services Clerk position, the union must still show that the position to which the grievor was temporarily assigned was a position in a classification with a higher salary maximum than the OA-2 classification. The only asserted basis for the union's claim to that effect is that the assignments were to perform the duties of the OA-6 "Senior Clerk, P.P.S.R. and Companies" position described above. Since we have rejected that argument, the grievance must be dismissed on its merits.

53It follows, therefore, that to be entitled to acting pay, the grievors must establish that they were assigned to perform all of the core or significant duties of the AFA20 position. On the basis of the union's evidence, I find that the union has not made out a prima facie case that they did that, even assuming that they did files, which were outside the scope of their own job and fell within the AFA20 position.

54A review of the AFA20 position description makes it clear that handling sensitive or complex files is a significant duty of that position. Even if the union's position is accepted that a tax value exceeding $25,000 by itself makes a file sensitive or complex, it would result in a finding that the grievors were assigned one of the core or significant duties of the AFA20 position. However, the handling of sensitive or complex files is not the only core duty of the AFA20 position. The AFA20 position description is replete with leadership, training and mentoring responsibilities, which is a major feature not present in the FO5 job description. Based on the position description and the evidence about the mentoring, training and leadership duties performed by AFA20s, the Board finds that those are core duties of the AFA20 position.

55The union submitted that the grievors also performed similar leadership, training and mentoring functions during their claimed temporary assignments. However, the evidence does not support such a finding. There is no evidence that the employer assigned the grievors any leadership, training or mentoring duties. To the extent that the grievors assisted or mentored new or less experienced colleagues, they did it on their own volition. As one grievor testified, they were simply carrying on a practice within the office, of colleagues helping one another. As the Board in Re Collins, (supra), at p. 9 wrote:

However, if a person takes on responsibilities on his own volition that is not sufficient to say that by the assumption of the responsibilities that may fall within a higher classification that he then is entitled to receive pay for that higher classification.

56In any event, the evidence discloses that there was a substantial difference between the responsibilities in this regard carried out by AFA20s and those undertaken by the grievors. The evidence is clear that the grievors did not have the same level of responsibility and accountability for the development and work performance of newly hired FO5s as AFA20s did. In fact, the evidence does not suggest that they had any responsibility or obligation in that regard. The fact that FO5s may assist or train or mentor other less experienced FO5s is very different from AFA20s who had a responsibility and duty to carry out those functions as part of their job. Therefore, to the extent they did any leadership duties, those cannot be said to be duties of the higher classification.

57The union also pointed to the evidence to the effect that not all AFA20s had been involved in the training of FO5s or appointed as mentors, and further that those duties were not ongoing, but performed only if and when there were new hires. Reliance was placed on Mr. Doyle's testimony that although he was formally granted a temporary assignment as AFA20 for a 6 month period, he did not perform any training, nor was he appointed as mentor to anyone. Union counsel submitted that a duty could not reasonably be said to be a core or significant duty when it is performed only by some incumbents, and that too only on an as needed basis.

58The foregoing argument was considered and rejected by the Board in Re Barnier,(supra). The Board concluded on the evidence that commercial valuations formed a core duty of the higher classified NFA position, and further that the grievors had not performed that core duty. Then at p. 31, the Board observed as follows on the union's position that some incumbents in NFA positions also did not perform commercial valuations:

The fact that some NFAs also did not do these things is not relevant legally, although it clearly gave rise to the grievors' belief that they were doing the same work as some NFAs for less pay. I have no doubt that this occurred. But the assessment under Article 8.1.1 looks at whether an individual employee is "assigned temporarily to perform the duties of a position in a classification with a higher salary maximum ...". It is the "duties of a position" that matters, not what an individual in that position may or may not be doing. Clearly, some NFAs in the London region, which outside of the City of London is largely rural, may not perform many, or indeed, any commercial valuations. Likewise, some may not, in any given period, attend court. But it is the duties of the NFA position that matters under Article 8.1.1, and those duties include independent commercial/industrial valuations and attending courts, duties which the grievors were not assigned to perform.

59In the present case there is evidence that all AFA20s had authority, and exercised that authority in a leadership role while in the field. Quite apart from that, as in Re Barnier, here also the fact that not all AFA20s performed the leadership duties or the fact that such duty was not carried out on an ongoing basis is irrelevant. As the Board stated, "It is the duties of a position that matters, not what an individual in that position may or may not be doing".

60In summary, I find that the union has failed to make out a prima facie case to support a violation of article 8.1.1. The work they carried out was not outside the scope of their own position. Even if it was, the grievors then would have performed only one core aspect of the AFA20 position. In the circumstances, there is no evidence, on a prima facie basis, sufficient for a finding that the grievors were "assigned temporarily to perform the duties of a position in a classification with a higher salary maximum ..." within the meaning of article 8.1.1.

61Since the Board has also rejected the union's allegation that the employer had exercised its management rights in an arbitrary, discriminatory or bad faith manner, the grievance must fail. In the circumstances, it is not necessary to address the employer's argument that the instant grievance is a disguised classification grievance, or that it is a "me too" claim. The grievance is hereby dismissed.