GSB#2006-2863, 2006-2864, 2006-2869, 2006-2870, 2006-2871, 2006-2872, 2007-0235, 2007-1321, 2007-1323, 2007-1324, 2007-1498, 2008-0711, 2008-0712, 2008-0713, 2008-0714, 2008-1127, 2008-1128, 2008-1129, 2008-1130, 2008-1468

UNION#2006-0546-0058, 2006-0546-0059, 2007-0546-0003, 2007-0546-0004, 2007-0546-0005, 2007-0546-0006, 2007-0546-0008, 2007-0546-0026, 2007-0546-0027, 2007-0546-0028, 2007-0546-0032, 2007-0546-0053, 2008-0546-0006, 2008-0546-0007, 2008-0546-0008, 2008-0546-0010, 2008-0546-0011, 2008-0546-0012, 2008-0546-0013, 2008-0546-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morsi)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

CONFERENCE CALL

June 4, 2012.

Decision

1The Union seeks an order requiring the Employer to provide ten vacation days as additional relief under the terms of previously negotiated Minutes of Settlement (“MOS”).

2The Grievor was a Tax Auditor 2 with the Ministry of Finance. As a consequence of the transfer of responsibility for certain tax services, the Grievor moved over to the Canada Revenue Agency (“CRA”) effective March 1, 2012; her last day of employment with the Ontario Public Service was February 29, 2012.

3After many days of arbitration and a number of attempts to mediate, the parties entered into Minutes of Settlement on March 7, 2012 resolving dozens of outstanding grievances and proceedings before the Human Rights Tribunal. The primary term of the settlement was a very significant award of damages. The settlement further provided that the terms of the settlement would be confidential, that it was in full and final settlement of all outstanding issues and that I would remain seized.

4The Union now alleges that during the mediation that led to the MOS at issue, Ms. Morsi requested ten additional vacation days and understood that the Employer’s response to her proposal was that that it could not transfer extra vacation days to the CRA. She subsequently learned that this was not true: her manager at CRA advised that the final reconciliation of vacation days carried forward from the OPS to the CRA was not completed until early April and that the province was responsible for paying for all vacation days for the first year after the transfer of its former employees. The Grievor now believes that the Employer negotiated in bad faith and misrepresented its ability to negotiate an important term of the settlement.

5The Employer maintains that it did not make an express representation that it could not agree to a provision that provided Ms. Morsi with additional days of vacation. Rather, the Ministry’s position was that as of March 7, when the mediation was concluded, the reconciliation of vacation and sick credits was underway and it did not want to provide extra vacation as part of the MOS. It considered Ms. Morsi’s request, but, in light of the very significant dollar value of the proposed settlement, it did not wish to impose additional vacation obligations on the CRA. It further disputes the suggestion that the province continued to be liable for payment of vacation days after its employees were transferred to CRA.

Submissions

6The Union alleges that the Ministry misrepresented its capacity to grant the vacation days requested by the Grievor during mediation. The Grievor relied on that representation to her detriment and the Union seeks an order granting her the full 10 days of vacation that she originally put forward to the Ministry. The Union does not want an order that the MOS are void nor does it want the MOS to be re-opened for further negotiation. The only relief that is being put forward by the Union is a request that the Board add an additional term to the existing MOS awarding extra vacation to the Grievor.

7In the alternative, the Union seeks an Order that the Ministry disclose any and all documents regarding the timing of the final reconciliation for the transfer of vacation credits from the OPS to the CRA.

8The Employer submitted that the Union has raised an exceptionally serious allegation and that it is obliged to offer clear and cogent evidence that the Ministry lied or negotiated in bad faith. In this case, there is limited evidence that amounts to no more than the Grievor’s assumptions. The Employer further argued that there are strong policy considerations in determining whether to interfere with a negotiated settlement. It is important for the Board to foster and honour settlements; the parties must have confidence that their settlements will be respected as a full and final resolution of the matters at issue.

9In this case it would be particularly unfair if the Board were to impose a term that was considered and expressly rejected by one of the parties. The settlement was meant to resolve numerous contentious issues and provides substantial financial compensation, which has already been fully paid to the Grievor. In these circumstances, it would be inappropriate for the Board to unilaterally impose additional relief.

10The Union accepted that it must provide clear and cogent evidence in support of its motion. It was prepared to call Ms. Morsi and her manager to provide the evidence as outlined. The Union also agreed that the Board should consider the parties submissions and determine whether that evidence was required.

Decision

11The Union has made it clear that it does not want the parties’ agreement to be rescinded or re-opened, the only relief sought is the unilateral imposition of an additional remedy. Having considered the parties’ submissions, I do not think it would be appropriate for this Board to insert a term in a final and binding settlement agreement, especially when the relief sought was expressly considered by the parties but ultimately not included in their agreement.

12After considerable negotiations, all of the parties agreed that a very substantial sum would be paid to the Grievor, but that no other relief would be included in the MOS. That amount has been paid in full to the Grievor. Inevitably, the sum of damages reflected the Ministry’s refusal to accede to all of the Grievor’s requests.

13Mediation is an organic process that typically includes a series of compromises leading to the final agreement. The terms of an individual MOS are not negotiated in isolation. They are interconnected and are the consequence of give and take by all the parties on many issues. If I now impose a term that was rejected by the parties, the Grievor would not only get all the vacation time that she asked for, without any compromise, but also get the benefit of having made a significant concession when she initially gave up her claim for vacation credits. She would be effectively compensated twice: she would get additional vacation credits and the financial compensation that was negotiated in lieu of those vacation days. In the circumstances of this case, I do not think that would be reasonable.

14I also have serious reservations about the sufficiency of the evidence relied upon by the Union in this case. The Union acknowledged that in order to succeed on this motion it would have to provide clear and cogent evidence that the Ministry lied or negotiated in bad faith. It outlined the evidence that Ms. Morsi would give, detailing her belief that the Ministry could have agreed to a term allowing her additional vacation days and that at the time the MOS was negotiated she believed that they could not. The Union also undertook to call the Grievor’s current manager at the CRA to testify to his understanding of the transfer agreement between the OPS and the CRA, in particular with respect to the reconciliation and payment of vacation credits. The Ministry acknowledged that the final reconciliation of vacation credits was completed after the mediation was concluded. However, it maintained that it took the position at mediation that it would not entertain the option of further vacation credits, not that it could not agree to provide them.

15Even if I were to accept all of the evidence that the Union has set out, it is difficult to see how that amounts to clear and cogent evidence that the Ministry negotiated in bad faith or misrepresented their reasons for rejecting the Grievor’s request for additional vacation days. The proposed evidence does not establish that the Ministry representatives knew that the transfer agreement between the OPS and the CRA operated in the manner that it suggests. Nor is it evidence that the Ministry intentionally misrepresented their capacity or willingness to negotiate the term that the Grievor wanted.

16I appreciate that Ms. Morsi feels very strongly that the Ministry ‘owed’ her additional vacation days and that she would have been very disappointed to learn after the negotiations had concluded that the Ministry ‘could’ have agreed to her request. Nonetheless, her recollection of the reasons that the Ministry offered when it rejected her proposal for additional vacation days, even if her belief is supported by the opinion of a manager at CRA that the Ministry could have agreed to this term, is not evidence of the intentional misrepresentation that she alleges.

17Nor do I consider the documents related to the timing of the final reconciliation of credits to be of any value and I would therefore dismiss the Union’s request for further disclosure. This Board has consistently recognized the importance of upholding the final and binding nature of settlement agreements. There are a number of policy considerations favouring this approach, including the desire to encourage the parties to resolve their disputes on their own, informally and without the need for arbitration. Once the parties have negotiated a settlement, it is essential that they have confidence in the finality of their agreement.

18In all the circumstances, I am not persuaded that the remedy sought by the Union should be granted. The Union’s motion is therefore dismissed.