GSB#2001-0534, 2003-2944, 2008-3397

UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018

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 Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Hannigan

Ryder Wright Blair & Holmes LLP

Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab

Ministry of Government Services

Labour Practice Group

Counsel

HEARING

July 22, September 16, October 6, 2010, October 18 & 25, November 15 & 22, December 12, 2011, March 1, 7 & 27,

April 10, May 23, 2012.

Decision

1On July 27, 2006, I issued a Decision in this case wherein I determined that “the preparation and certification of transcripts is bargaining unit work” and “the implications of this finding” were referred back to the parties. I remained seized. The parties, however, were unable to resolve the issues arising from my finding, and it came back to the Board for resolution. This Decision addresses some of the remedial issues raised by the parties.

2Both parties recognize the challenges that the remedial phase of this proceeding involves. As counsel for the Union aptly stated, it is like trying to “put a square into a circle” and is essentially an attempt at “reverse engineering.” Or, as counsel for the Employer stated, it was akin to trying to “unscramble an egg.” It is a difficult task.

Background

3For a two-year period following the release of the decision on the merits in this matter, the parties voluntarily agreed to maintain the status quo, pending discussions on the implementation of the decision. That agreement ended on June 1, 2008. Hearing dates were then set, but a number of procedural, jurisdictional, disclosure and production issues arose which were addressed by the Board. Eventually, the hearing on remedy commenced with the evidence of one Court Reporter, Helen Haggith. After some dispute, it was agreed that she was not a representative grievor but that a decision dealing with her situation could provide some guidance for the parties.

4A number of matters are not in dispute. First, the Board has determined that the preparation and certification of transcript is bargaining unit work. Second, to date, notwithstanding the expiry of the agreement to maintain the status quo, the Employer has continued to treat Court Reporters as independent contractors.

5The Union asserts that Ms. Haggith is owed between $186,141.69 to $236,871.14 by the Ministry for the period 2004 to 2009 due to its failure to follow the collective agreement. The Employer asserts that she is owed nothing. Clearly, the parties are in substantial disagreement in terms of their approach to the issues. Each issue will be addressed below, following a review of the basic principles in terms of remedial relief in a contractual matter.

Remedial Principles

6As succinctly stated by Vice Chair Herlich in Re OPSEU (Sidhu) and Ministry of Agriculture, Food & Rural Affairs, GSB No. 1994-0232 (2011), at par. 24:

The first and primary guiding principle of any remedial response is to put the aggrieved party, inasmuch as possible, in the same position they would have been in but for the breach. …[I]t is simply not possible to rewrite history… That task is beyond even the Board’s ample panoply of remedial resources. We must therefore ask what the grievor has lost, what she has suffered as a consequence of the Employer’s breach….

7A number of “guiding principles” are expressed in that quotation. First, the goal of a remedial order is to “make whole” – to put the grievor, as far as possible, in the same position he or she would be in but for the Employer’s breach of the collective agreement. Second, the onus is on the grievor to establish his or her loss. Proof of actual loss must be presented before a monetary award will be made. As stated by the Supreme Court of Canada in a wrongful dismissal case, Re Michaels v. Red Deer College 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324, at p. 5: “It is, of course, for a wronged plaintiff to prove his damages, and there is therefore a burden upon him to establish on a balance of probabilities what his loss is.” Re Motor Transportation Industrial Relations Bureau of Ontario and General Truck Owner’s Union, Local 938 (1972), 1973 CanLII 2120 (ON LA), 4 L.A.C. (2d) 154 (H.D. Brown); Re Thermal Ceramics and U.S.W.A. (1993), 1993 CanLII 16690 (ON LA), 34 L.A.C. (4^th) 23 (Gray).

8The loss cannot be speculative or remote, Re City of Waterloo and C.U.P.E., Local 1542 (1995), 1995 CanLII 18430 (ON LA), 50 L.A.C. (4^th) 197 (Williamson), nor should it put a grievor in a better position than if no violation occurred. As the Board stated in Re OPSEU (Grinius) and Ministry of Citizenship, GSB No 1495/89 (Fisher, 1995), at p. 14: “[T]he employee should not be any worse off, nor any better off than if the [breach] had not occurred in the first place.” Further, the purpose is to compensate, not to punish. Re Miracle Food Mart Canada and U.F.C.W., Local 175 and 633 (1994), 1994 CanLII 18689 (ON LA), 45 L.A.C. (4^th) 209 (Dumoulin); Re OPSEU (Gibbon) and Ministry of Correctional Services, GSB No. 0687/00 (Kirkwood).

9There is also a duty to mitigate the losses incurred – “a party aggrieved by the violation of the collective agreement must act reasonably to mitigate its losses.” Re Regional Municipality of Ottawa-Carleton and Ottawa-Carleton Public Employees Union, Local 503 (Lee Grievance) (1997), 1997 CanLII 25112 (ON LA), 63 L.A.C. (4^th) 112 (Dissanayake) and cases cited therein; Re Michaels v. Red Deer College, supra; Re City of Toronto and Toronto Civic Employee’ Union, Local 416 (2005), 2004 CanLII 94740 (ON LA), 135 L.A.C. (4^th) 140 (Tacon).

10The foregoing are the guiding principles that govern my consideration of the remedial issues raised in this case.

1. Wages for time spent preparing transcripts.

11As the typing and certification of transcripts is bargaining unit work, wages must be paid for the time that employees spend performing such work. Both parties agree that the amount of time spent preparing transcripts depends on how quickly they can be produced by a Court Reporter. According to the Union, an inexperienced Court Reporter (under one year) can produce 1.5 pages of transcript/hour. A moderately experienced Court Reporter (1 to 2 years) can produce 2 pages of transcript/hour. After two years, a Court Reporter can produce between 3.5 to 4 pages/hour, and an experienced Court Reporter (3+ years experience) can produce 5 transcript pages/hour.

12The Employer put forth two estimates for the preparation of transcripts. One asserts that an inexperienced Court Reporter (under 6 months) can prepare 6.5 pages/hour; a moderately experienced Court Reporter (between 6 months to two years) can produce 8.5 pages/hour, and an experienced Court Reporter can type 12.5 pages/hour. The second assessment asserts that a new Court Reporter can produce 6 pages/hour, an intermediate Court Reporter can produce 10 pages/hour and an experienced Court Reporter can type 13 pages/hour.

13No evidence was presented by either party based on a Court Reporter actually keeping track of the hours he or she spends preparing transcripts. In the Union’s view, since Court Reporters were not paid by the hour, there was no requirement or expectation that they should keep track of their time. Nor was any such evidence presented by the Employer. Similarly, neither side presented any industry standards, nor testimony from independent court reporting agencies, court reporting accrediting organizations or governments about how quickly court reporters can produce and certify a transcript.

14Instead, the Union presented evidence of Ms. Haggith’s monthly calendars from 2004 to 2009, on which she recreated the dates and times she was assigned to in-court duties (from her own records as well as payroll and court records), her transcript orders and transcript invoices which showed the number of transcript pages she produced as well as the date of the order and approximately when it was completed. From that information, she estimated the time that she spent preparing transcripts, and when she did them. She allocated transcription hours to time during the week she was not in court, and tried to avoid weekends and holidays “unless volume required it” or she had a specific recollection of working on a weekend or holiday.

15Ms. Haggith was hired by the Ministry on July 14, 2003 as an unclassified on-call Court Reporter. At the time, she had a degree in English from the University of Windsor, a secretarial certificate from St. Clair College, and had taken some computer and Labour Relations courses. She also had prior work experience in payroll for a Customs Brokerage and as an Executive Assistant. She saw an advertisement for Court Reporters and applied. She was tested for typing skills and computer functions, interviewed and then offered the job. The Ministry requires a minimum typing speed of 50 words per minute (wpm) – straight copy typing from a document. There was no evidence concerning the “computer function” testing she did.

16Ms. Haggith initially estimated the hours she spent preparing transcripts at the start of her career based on a calculation of being able to produce 1.5 pages of transcript per hour, “all in.” By “all in” she included all of the tasks associated with the production of transcripts. This included reviewing the transcript order, obtaining the tapes and notes required for the order from where they were kept in the court house and copying them (photocopying the notes and any documents, and, after 2005, dubbing the tapes because they were no longer allowed to take the originals home), setting up her computer and templates, finding the right spot on the tape, printing the draft to proof read it, proof reading it, printing the final version and copies, binding it, invoicing, calling the parties to advise it was ready, and following up in regard to payment.

17Ms. Haggith testified that when she started, preparing transcripts was a very slow process. She had to look up everything. The Ministry has specific requirements for each type of proceeding and transcript which are set out in a Court Reporters’ Manual. She also would proof read it (by listening to the original recording in real time) multiple times. She’d send it off to a mentor, make any required changes, and then proof read it again.

18Under Ms. Haggith’s formula, it would take 2 hours to complete a 3 page transcript, or 20 hours to complete a 30 page transcript. The evidence at the hearing established that one hour of court/audio time generally results in 30 pages of transcript. So under this calculation, it would take her 20 hours to complete 1 hour of courtroom audio. The Union’s calculation of the wages owed to Ms. Haggith, for 2004, was based on this formula.

19Ms. Haggith acknowledged that as her experience increased, she became faster. All of the witnesses who testified agreed that experience leads to faster transcript production. In Ms. Haggith’s estimation, by 2005, she was able to produce 2 pages of transcript per hour. She was “still very new” to transcribing. Under this formula, a 30 page transcript would take her 15 hours to produce. By 2006, she estimated that she could type between 3.5 to 4 pages/hour. By 2007, she was able to produce 5 pages of transcript per hour. Her speed, she testified, was “as good as it was going to get” at 5 pages of transcript per hour.

20When asked on examination-in-chief why she selected that figure, she replied that it was “probably the fairest estimate.” She testified that she could “probably type 10 to 12” pages in an hour if it was a “really good recording” and “clear.” The “fastest ever” she was able to type was 15 pages per hour, but 10 to 12 pages was “more accurate” since it was “rare” to get a clear recording. In terms of proof reading, she could do that at 30 pages per hour – or two minutes per page, and she would generally proof read twice, although there were times that she proof read three, four or even five times “till there were no mistakes.” Even at 15 pages per hour typing, she testified that it would result in 7.5 pages/hour “all in”, including retrieval of documents, billing, binding, printing, packaging, and follow-up. Therefore, in her estimation, producing 5 pages of transcript per hour “is very fair.”

21Ms. Haggith testified that she would “just type all the time – it’s all we do.” She had “no social life, no time”, she would “barely see her family.” She “loved it” but it was “exhausting” and “takes over your whole life.” She initially testified that a Court Reporter could not refuse a transcript – that it “must be done.” Later in her testimony, however, she stated that she would “turn down quick turnaround cases.” She also delegated typing responsibilities to other court reporters “on occasion.” Conversely, she would “take as well” by typing transcripts for other Court Reporters “when they were overwhelmed.”

22On cross-examination, Ms. Haggith acknowledged that the Ministry encouraged Court Reporters to approach colleagues if they had too much transcript work to do. She also testified that there was a “stand by” Court Reporter to whom she could “hand off what [she] couldn’t manage.” She further testified, on cross-examination, that “this year”, she “stopped typing” as “my own protest.” The exception was overnight transcripts.

23I would note that this evidence differed significantly from the evidence presented in the hearing on the merits. There the evidence established that “the production of transcripts, upon request, is a required part of a court reporter’s duties” and was “not optional.” Nor could a Court Reporter, without the Ministry’s approval “refuse to prepare a transcript” or delegate it. (July 26, 2006 Decision at pp. 5-6). The evidence in this proceeding was that Court Reporters can and do refuse transcripts, can ask for and receive assistance both from co-workers and supervision, and can have transcripts reassigned.

24Ms. Haggith testified about a few transcripts which “stood out” in her recollection. One was at Thanksgiving in 2006, during a criminal pre-trial. She was in court on the Friday before Thanksgiving and it had been a “long day”, when a transcript of the day’s proceedings was requested by counsel. She advised that she could not do it because she was going to Chicago for the weekend to help her sister move, and asked if it could be given to someone else or provided on Wednesday morning. The judge told her to do the best she could. She later received a message to have it done for Tuesday, and by that time, no one in management was available to help her find someone else to do it. So she went to Chicago, returned very late on Sunday, and started typing at 8 a.m. on Monday, and typed until 11 p.m. on Thanksgiving. She stated that it was an analog tape and the quality was “not great” and it was “very unpleasant.” Her invoice reveals that she transcribed 64 pages, which is a rate of 4.26 pages/hour.

25Another one took place just before Christmas 2006, when a transcript was ordered by the Deputy Justice in a Small Claims matter. She testified that she had to bring her transcribing equipment on her vacation and that she typed the transcript at her mother’s house. She testified that normally, a single day trial would generate 150 pages of transcript, but this one was 244 pages because counsel kept interrupting. It took “a good portion of my vacation.” Her invoice for it was dated January 14, 2007.

26At the time that Ms. Haggith initially prepared her calendars for this proceeding, she reviewed her personal documents (invoices, orders, pay stubs, receipts and other supporting documents). Those documents for the years 2006 to 2009, however, were destroyed when a power outage in June 2010 knocked out her sump pump which flooded her basement, and her documents, which had been placed in a basket on the floor in her basement, were destroyed. Her records for 2004 and 2005 which had been placed in a different location were fine. Ms. Haggith was able to retrieve most of her transcript invoices from her computer, but not the other supporting documentation.

27On September 25, 2006, Ms. Haggith’s status changed from unclassified, on-call Court Reporter, to classified “flexible part time” (“FPT”) Court Reporter, at 1000 hours per year. On June 24, 2005, the parties entered into a Memorandum of Agreement concerning “Court Support Services of the Ministry of Attorney General, and Appendix 25 of the Collective Agreement.” This agreement became Appendix 32 of the 2005 -2008 collective agreement. It established a pilot project which changed unclassified, on-call staff to classified “flexible part-time” staff, with a range of minimum annual hours, from 720 to 1500 hours per year. Section 4 of that agreement specified the collective agreement articles which would be applicable to the new FPT model and that “no other articles apply unless specifically agreed” although that was subject to further review by the parties.

28On February 26, 2009, the parties revised Appendix 32. It continued the FPT arrangement, although it limited it to either 1000 or 1500 hours per year, with the right to schedule employees up to 36.25 hours per week. Again, in Section 4, the parties specified the “applicable collective agreement provisions.”

29Ms. Haggith testified that she resigned from her position effective August 5, 2011, due to a number of factors. She had “had enough of the Ministry and fighting to do the job.”

30Judith Mann, Senior Policy & Business Analyst, Court Services Division, Ministry of Attorney General, and Debbie Dunn, Acting Manager of Court Operations, testified on behalf of the Employer. Ms. Mann started with the government in 1970, and became a judicial secretary and Court Reporter in 1972. In 1974, she became a full-time Court Reporter 2, and in 1978, she became a Supervisor and Trial Coordinator. She returned to court reporting in 1980 and remained in that position for twenty years, attending trials at many different courts, until 2000. From 2000 to 2007, she served as Supervisor, Court Support Services, in Hamilton, after which she began her current job. In addition, for the past ten years, Ms. Mann has also owned and operated her own transcription business.

31Ms. Dunn had been a free-lance Court Reporter from 1999 to 2004, in Orangeville, where she took the record of the proceedings and produced transcripts “hundreds of times.” In 2004, she became a stenomask Court Reporter in Brampton, and in 2006, she became Acting Supervisor for Court Reporters in Brampton. In 2007, she also became the Supervisor for Court Operations in Orangeville. In February 2011, Ms. Dunn became Acting Manager for Court Operations, for Orangeville, Milton and Brampton.

32In their various positions, both Ms. Mann and Ms. Dunn have supervised and mentored many Court Reporters, among other in-court employees.

33Both Ms. Mann and Ms. Dunn were incredulous at the transcript page per hour numbers proposed by the Union. It was Ms. Mann’s view that a new Court Reporter should be able to produce between 6 to 7 pages of transcript per hour. After six months, a Court Reporter should be able to produce 8 to 9 pages of transcript per hour, or an average of 8.5. An experienced Court Reporter, in her estimation, should be able to produce between 10 to 15 pages, or an average of 12.5 pages/hour. Ms. Mann stated that her averages were based on her personal experience and knowledge of court reporting, and that she went through her transcripts, with a friend, and came up with these averages She said she “would be phoning HR” if a new Court Reporter was producing transcripts at the rate of 1.5 pages/hour. She would also be “very concerned” about a Court Reporter, with three years’ experience, who was typing at 5 pages/hour.

34Ms. Dunn’s numbers were similar – initially 5 to 7 pages/hour, or an average of 6 pages/hour. After six months experience, she would expect a range of 8 to 12 pages, or an average of 10 pages/hour, and an experienced Court Reporter, in her view, should produce 12 to 14 pages/hour, or an average of 13 pages/hour.

35Ms. Mann testified that Court Reporters come to the job able to type at a minimum ability to type 50 wpm, and that their speed increases with experience. Both Ms. Mann and Ms. Dunn testified that typing from an audio is generally faster than straight copy typing because you do not have to switch their eyes from the copy to the screen, but acknowledged that it might not always be the case, particularly with a poor recording.

36Ms. Dunn testified that in preparation for the hearing she completed a 13 page transcript, including proof reading and binding, in one hour with “three minutes to spare.” She did this as a “personal exercise” in order to give the “best information” she could at the hearing. Unfortunately, she shredded the transcript and did not save a copy of her work. She stated that it “didn’t occur to me that anyone would want it.”

37Ms. Dunn’s estimates went from a figure that she determined was reasonable, and then worked backward. For the experienced person, she determined that a 68 page transcript should take 5.23 hours to complete, “all in.” She calculated two minutes per page for proof reading (2.26 hours), but said that in reality, it would be done at a faster pace because a Court Reporter could fast forward through pauses and “dead air.” She included 2 minutes per hour for all of the “one time” incidentals – like copying, binding, billing. She calculated 2.8 hours to type 68 pages of transcript. Assuming 250 words per page of transcript, which the evidence supports, that comes to 17,000 words, or a speed of over 100 wpm.

38The only person who testified that her rate was close to that was Ms. Diane Black, a Court Reporter and reply witness for the Union. On examination-in-chief, she testified that the standard expectation for copy typing was 50 wpm, and that she could not type as fast from an audio recording. She thought it was “slower” although she wasn’t sure how much slower – just that you “get less done.” On cross-examination, however, she testified that she typed “fast”, between 80 to 100 wpm from a hard copy.

39None of the other witnesses were asked about their typing speed. Ms. Haggith testified that she typed between 10 to 12 pages/hour, with a maximum of 15 pages. The evidence established that there are generally 250 words on a transcript page. Consequently, twelve pages per hour equates to 50 wpm. Fifteen pages per hour equates to 62.5 wpm. Ms. Diane Black testified that she typed 12 pages per hour from a recording. Ms. Pirjo Ojanen, another Court Reporter and reply witness for the Union, testified that she typed between 10 to 11 pages per hour, straight typing, from audio. That would mean she types less than 50 wpm. Ms. Karishma Nairne, a relatively inexperienced Court Reporter, testified that after a few years, she was able to type at 10 pages per hour from an audio recording, straight typing. She would also be typing less than 50 wpm.

40In terms of proofreading, Ms. Haggith was the only witness who testified that she proof read more than one time. All of the other Court Reporters who testified, as well as the Employer’s witnesses, stated that they did so only one time. Ms. Haggith also testified that she proof read from a printed hard copy – which the most recent Court Reporting manual entered into evidence suggests as a “tip”– but all of the others, except Ms. Naraine, proofed from their drafts on the computer screen. Even Ms. Haggith did so, when there was “no time” to proof read from a printed copy.

41Ms. Haggith testified that she needed to proof read more than one time in order to “certify” the transcript. Certification, on a Form 2, is a certification, by the Court Reporter, that the transcript is “a true and accurate transcript” of the court proceedings. A Form 1 certificate is a Certificate of Recording in court. As noted, however, every other witness testified that they were able to certify the transcript from proof reading just one time.

42The evidence established that many variables impact transcription production speed. Most important is the quality of the recording. It was common ground that digital recording, which began in 2007 as a pilot project and is widely utilized now, is vastly superior to analog recording in terms of sound quality. There is also sound amplification, which enhances the sound of the recording.

43Other factors in addition to the clarity of the recording, as outlined by Ms. Mann, are the experience level of the Court Reporter, the density and complexity of the proceeding (i.e., “yes” and “no” answers versus a pathologist or mechanical engineer explanation), and the method of taking the record (Computer Assisted Technology was faster). Also relevant are the talking speed of the participants, whether people are talking over each other, accents, the use of interpreters, if the witness is a child, ambient noise and many other variables.

44There was a significant amount of testimony concerning the use of “templates”, “macros” and “autocorrect” which are features on computer software (Word and Word Perfect) which can significantly increase typing speed, particularly where words or phrases are repeated. For example, the letters “imrs” can be typed for the words “in my respectful submission”, “yh” can be programmed to be “Your Honour”, and so forth. Over time, a personal “dictionary” can be developed by the Court Reporter to speed his or her typing. It also reduces spelling mistakes, especially with names, which reduces the need for corrections. Templates (which set out the margins and formatting for different types of proceedings) can be prepared one time, and then used whenever that type of proceeding arises.

45All of the Court Reporters who testified, including Ms. Haggith, acknowledged that they used templates and autocorrect and that these tools speed up typing transcripts. None appeared, however, to use them quite as extensively as Ms. Mann or Ms. Dunn. In contrast, it was Ms. Mann’s and Ms. Dunn’s testimony, based on their supervisory and mentoring experience, that all Court Reporters regularly use these tools. The evidence established that the Ministry does not formally teach new Court Reporters on the use of macros or autocorrect. There is also no section on it in the Court Reporter Manuals introduced at the hearing.

46The evidence established that the primary responsibility of the Court Reporter is to obtain a clear record. This means that if the reporter does not hear what has been said, he or she needs to interrupt the proceedings to advise the judge of that situation. The evidence established that most judges understand the importance of the record and accept the need for clarification. Not all judges are understanding, but the evidence established that this is the exception, not the norm. All of the participants involved in a proceeding – the judge, counsel, the parties and the Court Reporter – share the goal of an accurate and complete record of the proceedings. As Ms. Dunn testified, a Court Reporter learns very quickly to interject when they need to do so to ensure an accurate record.

47Court Reporters are also required to obtain spellings of names and technical terms, case law names and citations, an exhibit list, and any other information required to produce an accurate transcript at the time the recording is made. The evidence showed that doing this saves significant time when typing the transcript by avoiding the need to look things up. Court Reporters are instructed by the Ministry in terms of obtaining the necessary information.

48Court Reporters are also responsible for testing the recording equipment to make sure it is working and recording properly before the Court starts the proceeding – and during the proceeding as well. Any issues with the recording must immediately be brought to the judge’s attention so that a complete record is provided.

49The Ministry utilizes several different methods of taking the transcript. The least utilized, by far, is Computer Assisted Transcription (CAT). It also uses Stenomask reporting. This involves a Court Reporter repeating everything that is said in Court into a mask with a microphone. The vast majority of reporting, however, is done through audio recording – analog or digital. The Court Reporter audiotapes the proceedings, using one of the two methods.

50Since the 1990s there have been variations in recording the proceedings. The number of tracks have increased to 4 tracks. With four tracks, according to Ms. Dunn, it is easier to isolate the tracks, yet the recording flows as it did in court. In 2007, the Ministry began a pilot project using digital recordings. It was successful, and the Ministry has converted “a high percentage” of the courts to digital recordings, with more each year. The evidence showed that not only is the quality of the recording significantly superior, but digital also eliminates the need to copy tapes and log notes. The recording and notes are obtained through a USB stick or CD – and searching for specific testimony is much faster. The search can be done by a keyword instead of trying to find the correct spot on a tape.

51In terms of copying analog tapes and log notes, the practice varies. According to Ms. Dunn, 70% of courts have a Court Tape Monitor or Records Clerk who, when a transcript order comes in, pulls the tapes and log notes for the order, and places them in the Court Reporter’s mail box. Ms. Black testified that she was the Court Tape Monitor at her Court. Ms. Naraine, who worked as a Court Reporter for three years, never had to pull her own tapes or log notes. Likewise, Ms. Ojanen testified that she has not had to copy any tapes or notes herself for the last four or five years. It is undisputed that with digital tapes, there is no need for copying tapes or log notes.

52When a Court Reporter has to copy an analog tape there were varying estimates of the time that takes. Ms. Haggith testified that it takes between 7 to 10 minutes to copy a tape. Other estimates ranged from 1 to 2 minutes, and Ms. Black testified that it takes from 3 to 4 minutes per tape. Tapes are generally 90 minutes long, although some 60-minute tapes are used. The Courts all have “dubbers” – machines which quickly copy the tape. The number of dubbers per court varies with the size of the court house. In Brampton, for example, there are six or seven dubbers, so if there are multiple tapes, more than one may be done at the same time. Other courts have one or two.

53In terms of binding transcripts, the evidence established that it takes approximately one minute to bind 10 to 15 pages of transcript, although the estimates varied. There are binders at the court house, some of which can handle more pages at a time. Some court reporters have their own binders. Transcripts of less than ten pages may be stapled, although Ms. Haggith testified that she bound them. The evidence established that for Court of Appeal transcripts, which require five copies, a Court Reporter may send their transcript electronically to the Queen’s Printer, who will print and bind a transcript over 10 pages long. Ms. Haggith testified that she never did this; she always printed and bound her own Court of Appeal transcripts. She testified that for one large appeal she spent a full day and one half printing and binding the transcript.

54Based on all of the potential variables, it is clear that there is a range of potential transcription production rates, and that in determining how quickly a Court Reporter may prepare a transcript an “average” needs to be utilized. Whatever page per hour rate is determined, there will be some transcripts that take longer to produce and some that take less time to produce. There will also be Court Reporters who are “faster” and some who are “slower.” It is also an average that will increase with experience, as well as improvements in technology. As Ms. Haggith testified, with experience a Court Reporter becomes familiar with the different types of proceedings and formatting, the Manual requirements and the case law. Also, his or her personal “dictionary” is built up over time. The clarity of the recording also plays a significant factor in the speed at which a transcript may be produced.

Calculation of the Page/Hour Rate

55Because Ms. Haggith took the record solely through audio recording of the proceedings only, both analog and digital, this decision addresses that type of court reporting.

56In determining an average page per hour transcription rate, “all in”, I have made a number of assumptions, based on the evidentiary record. These assumptions are as follows:

1. The average transcript length is 68 pages. This is based on Ms. Dunn’s testimony and the testimony of other witnesses that the “average” transcript was between 50 to 70 pages. The average of 35 pages suggested by Ms. Mann included the shorter 3-5 page “reasons for judgment” which brought down the average.

2. The average number of words per page of transcript is 250 words per page. Consequently, in a 68-page transcript, a Court Reporter types 17,000 words.

3. The speed at which a Court Reporter can type a page of transcript increases with experience. I conclude that an inexperienced reporter (under 12 months) can type an audio recording from between 20 to 50 wpm, or at an average of 35 words per minute. This is based on the minimum typing speed required at the time of hire (50 wpm), reduced by learning to type from an audio recording (which may slow them down, particularly in the beginning) and learning all of the requirements of creating a transcript. It assumes that some will be typing from an analog tape and some will be typing from digital. It assumes that there is a range in the density and complexity of the recording. These assumptions pertain to all of the calculations. I conclude that an intermediate Court Reporter from 1 to 2 years experience can type between 40 to 60 wpm, or at an average of 50 words per minute. I conclude that an experienced Court Reporter can type, on average, from between 50 to 80 words per minute, or at an average of 65 words per minute. It may be that an experienced Court Reporter can type faster, on average, than that, but I find an average of 65 wpm to be consistent with the evidence presented overall – considering the testimony of the Court Reporters who testified – only one of whom acknowledged a copy typing speed of 80 to 100 wpm, and the contrasting testimony of Ms. Mann and Ms. Dunn.

4. I have assumed that proof reading (by listening to the audio recording) is done only one time. Except for Ms. Haggith, that was the consistent practice of all of the witnesses who testified. I accept that Ms. Haggith, in order to certify the accuracy of her transcripts, felt that multiple proofreading was required. But in determining the page per hour rate, based on the evidence presented, only one proof reading will be considered.

5. I have assumed that proof reading is done in real time, which is 2 minutes per page. It may be that, on occasion, proof reading may be faster than real time as a reporter may fast forward through pauses, but that is balanced out by times that a portion of the recording has to be repeated, or a separate track listened to, to ensure accuracy. I have also assumed that it is not necessary to review the printed pages other than a quick review to ensure no blank pages. I have determined that there is no material difference in time based on whether a Court Reporter proof reads from their computer screen or from a hard copy. The evidence established that most reporters proof from their computer.

6. In terms of copying tapes and log notes, I have calculated an average time to be added. The evidence showed that “a high percentage” (which I determine to be 70%) of court houses use digital recordings which do not have to be manually copied. Further, the evidence showed that in the court houses that use analog tapes that must be copied, 70% have personnel who copy the tapes and log notes for the Court Reporter. Consequently, only a very small percentage of Court Reporters must still copy tapes and log notes (i.e., only 30% of the 30% who still use analog tapes). Further, 68 pages is slightly more than two hours of court time, so it assumes that only one or two tapes are being copied and a few pages of notes.

7. I have assumed that, with a 68-page transcript, the remaining “one time” activities take 20 minutes on average – this includes reviewing the order, printing, binding (other than for Court of Appeal cases over 10 pages, which should be sent to the Queen’s Printer), invoicing, calling or emailing the parties, and packaging. Given that this 20 minute time period is included in the calculation based on a transcript of 68 pages, a longer period of time will be automatically included for longer transcripts.

Based on these calculations, I have developed the Table below:

Table: Transcript Productivity Analysis

Beginner

Intermediate

Experienced

Assumptions

Words/min

35.0

50.0

65.0

Tasks

Transcript

68

Pages

TYPING

Words

250

Words/pg

(min)

485.7

340.0

261.5

17,000

Words

(hrs)

8.10

5.67

4.36

Proofing

2.0

Min/page

PROOF READING

(min)

136

136

136

(hrs)

2.27

2.27

2.27

Copy/Notes

5.0

Min total

COPY/NOTES*

Analog

33

67

% Digital

(min)

0.54

0.54

0.54

Self Copy/Notes

33

% Of above

67

% Court

(hrs)

0.01

0.01

0.01

*averaged over all court reporters

Other (print, bind, bill, call)

OTHER

20.0

Min

(min)

20.0

20.0

20.0

(hrs)

0.33

0.33

0.33

TOTAL

(min)

642.3

496.5

418.1

(hrs)

10.70

8.28

6.97

min/page

9.44

7.30

6.15

pages/hr

6.35

8.22

9.76

Notes:

1. 68 pages at 250 words per page equals 17,000 words.

2. 17,000 words, divided by the three average typing speeds (25, 50, and 65 wpm) converts into minutes and hours.

3. proof-reading is calculated at 2 minutes per page.

4. time for copying tapes and notes is averaged across all court reporters – 5 minutes for 30% of court houses and 30% of court reporters who still have to copy.

5. 20 minutes is the time allotted for all other one-time functions

6. the sums of #2 to #5 above (for typing, proof-reading, copying, and one-time functions) are added, in minutes and hours.

7. the sum in #6 is divided by 68 pages to get minutes/page (e.g., 642.3 ÷ 68 = 9.44 minutes per page).

8. the number in #7 (the minutes/page) is divided into 60 minutes to get the page per hour rate (e.g., 60 ÷ 9.44 = 6.35 pages/hour).

57These numbers are obviously quite different than those reflected in the testimony of Ms. Haggith, who testified that she typed 1.5 pages/hour as a new Court Reporter, 2 pages/hour as an intermediate Court Reporter, and 5 pages/hour as an experienced Court Reporter. With respect, I found Ms. Haggith’s numbers to be unreasonably low.

58Moreover, I was not persuaded by the testimony of the Union’s reply witnesses, who uniformly concurred that an experienced Court Reporter could only prepare 5 pages of transcript per hour, all in. None of the witnesses had ever timed any of their actions, nor was their testimony persuasive in terms of the time that various transcription tasks involved. Ms. Black’s testimony, for example, varied significantly between examination-in-chief and cross-examination. She testified on examination-in-chief that it would take her 45 minutes to proof read a 30 minute tape – that it was “longer than real time”, whereas on cross-examination she stated that proofing is done “slightly faster than real time” and that it would take her “several hours” to proof read a 150 page transcript (vs. 5 hours at real time) because she would “fast forward through pauses” and there are “frequent pauses.” On examination-in-chief she stated that it would take her 15 minutes to set up her computer for typing a transcript, but on cross-examination she admitted that she “never looked at her watch” and it “could be a little shorter.” On examination-in-chief, she stated that binding a 150 page transcript would take 15 minutes to bind, but on cross-examination acknowledged that she “never timed it” and that 15 minutes “might be a little high.” On examination-in-chief she stated that it took her 10 minutes to bind two document books presented at the hearing, while on cross-examination she stated that it took her between 15 to 20 minutes to bind them. She had over 30 years experience typing transcripts and she believed that 5 pages/hour was “a good average”, even though she was a “fast” typist, typing between 80 to 100 wpm, straight copy typing. In reaching her 5 pages/hour conclusion, she testified that she “never timed” herself and she “never added up the time.”

59Ms. Narraine and Ms. Pirjo Ojanen also never timed their transcript production tasks. Ms. Ojanen further testified that she is slowed “quite a bit” by having to find spellings and terminology that she is unable to get in court. Similarly, Ms. Black testified that she often had to slow down to look up words in a dictionary, and that she had to stop to hear something “every few lines.” In this regard, I accept the testimony of Ms. Dunn and Ms. Mann that it is the job of a Court Reporter to get these items, and to ensure a clear recording, at the time so the information is available when the transcript is typed. In addition, Ms. Ojanen estimated that it took her 1.5 hours for the one-time “extras”, but she never timed it nor did she fully explain the basis of that conclusion.

60On the other hand, I found the evidence of Ms. Mann and Ms. Dunn concerning an appropriate transcript page per hour rate to be less than compelling. Both relied heavily on the use of macros and autocorrect to increase typing speed, yet the Ministry does not teach it. Ms. Mann was largely self-taught on macros and auto-correct, and Ms. Dunn was instructed by a former employer. Although the evidence showed that Court Reporters did utilize these tools, the extent of their use was far less clear. Ms. Mann testified that in calculating her page/hour numbers she took into account an “appropriate” use of macros and autocorrect, rather than an “extensive” use. But exactly what that means was left unclear. If the Ministry seeks to justify a higher page rate because of macros and autocorrect, it must provide that instruction and require their usage. It cannot assume that all Court Reporters have this knowledge and are utilizing it significantly.

61I also found Ms. Dunn’s calculations somewhat difficult to understand. She appears to have determined the number of pages per hour that she found to be reasonable, given the Court Reporter’s experience, and worked backward. As revealed on cross-examination, the typing speed that she ascribed was over 100 wpm. There is no evidence in the record that any Court Reporter can type a transcript, even from a digital recording, at that speed. Maybe it can be done, but there was no evidence of it.

62In terms of Ms. Mann’s assessments, exactly how she made those assessments was not conveyed at the hearing. Her testimony was that it was based on her experience and a calculation she did with a friend, based on her own transcripts. There was no break-down offered of her numbers, and how she reached them. I was impressed with Ms. Mann’s background and wealth of experience and knowledge, but without an explanation of how she calculated her page per hour assessment, I cannot assess its validity. Nor do I find that I should accept her assessment because she was the only “expert” presented at the hearing.

63I also did not find the testimony of either Ms. Black that she had recently produced an overnight transcript at the rate of 4.4 pages/hour, or the testimony of Ms. Dunn that she had produced a 13-page transcript, all in, in one hour’s time, to be persuasive. Neither one, without far more detail as to the specifics of the transcript, can be viewed as generally representative.

64Further, as noted, no studies or reports regarding transcription norms from independent court reporting agencies, accrediting court reporter organizations, or other government entities was introduced by either party.

65Consequently, in the absence of a page per hour rate that I could accept from either side, I based my calculations on the “assumptions” set out above, which, in turn, are based on the totality of the evidence presented at the hearing. As set out in Table 1, I conclude, on the balance of probabilities, that a beginner Court Reporter, for the first year, based on an average of 35 wpm, should produce 6.35 transcription pages, per hour, all in. An intermediate Court Reporter, from year 1 to 2, should produce 8.22 pages per hour, all in, based on an average of 50 wpm. An experienced Court Reporter should produce 9.76 pages of transcript per hour, all in, based on an average of 65 wpm. The calculation of Ms. Haggith’s transcription hours should be based on these figures.

2. Other Collective Agreement Benefits

66In 2006, the Board ruled that the production and certification of transcripts is bargaining unit work. That means that the relevant collective agreement applies. Consequently, Ms. Haggith’s rights and entitlements under the collective agreement must be based on the collective agreement in force at the relevant time. In regard to Ms. Haggith, this involves three periods of time: (1) the period she was an unclassified, on-call employee, from July 2003 to September 25, 2006; (2) the period she was an FPT under the 2005-2008 collective agreement; and (3) the period she was an FPT under the 2009-2012 collective agreement.

67As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements, until September 25, 2006, Ms. Haggith was entitled to the provisions applicable to unclassified employees under Article 31A. To the extent, therefore, that she performed transcription work, as calculated under Table 1, she would be entitled to corollary monetary benefits such as Holidays (Article 31A.5); Vacation Pay (Article 31A.6); Benefits – Percent in Lieu (Article 31A.7) and Attendance Credits and Sick Leave (Article 31A.8).

68As of September 25, 2006, the grievor’s rights and entitlements under the collective agreement were subject to the June 24, 2005 Memorandum of Agreement in regard to FPTs. The parties, in Section 4 of that agreement, specified the articles of the collective agreement that “will be applicable to the new FPT model, and no other articles apply unless specifically agreed…” Article 31A no longer applied. In terms of benefits, the parties agreed to provide benefits under Article 65 (Basic Life Insurance), Article 66 (Supplementary and Dependent Life Insurance); Article 67 (Supplementary Health and Hospital Insurance); Article 68 (Dental Plan); Article 72 (Vacation and Vacation Credits); Article 74 (Bereavement); Article 75 (Special and Compassionate Leave); Article 76 (Pregnancy Leave); Article 77 (Parental Leave); and Article 78 (Termination) The insurance provisions provided various premium payments, some of which the Employer paid on her behalf, some of which the employee could elect (and pay for), and some for which payment was shared. The evidence did not establish that the Employer failed to make these payments.

69To the extent that the Union is seeking additional insurance premium payments, the Employer asserts that the remedy for a contractual violation involving premium payments is not to pay the employee the premiums, which would have gone to an insurer, but to pay for any actual loss due to the lack of the insured benefit. In support, the Employer cites to Re Calvert of Canada Ltd. and United Automobile Workers, Local 2098 (1980), 1980 CanLII 3977 (ON LA), 28 L.A.C. (2d) 62 (Rayner); Re Firestone Steel Products of Canada and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 27 (Compensation Grievance) (1974), 1974 CanLII 2348 (ON LA), 6 L.A.C. (2d) 18 (Weatherill). The Union argues that the employees should receive the money that the Employer should have been paying towards benefits but did not.

70In Re Firestone Steel Products of Canada, supra, Arbitrator Weatherill addressed the issue of whether employees who had been improperly discharged by their employer were entitled to receive the premium payments that the employer would have made on their behalf. The arbitrator determined that they were not entitled to such payments, concluding at par. 11:

[T]he grievors are not entitled to receive on their own account amounts which would have been paid out on their behalf, but which they would not have received themselves. Any losses which the grievors may have suffered because of the lack of insurance coverage, or the like, would, I think, be recoverable, but they are not entitled to windfall payments, or to compensation except for actual loss.

Similarly, in Re Calvert of Canada Ltd., supra at par. 10, Arbitrator Rayner determined that payment of any out-of-pocket expenses suffered by the grievor because coverage was not maintained, rather than payment of the premiums, was consistent with the “purpose of an award of damages” which is “to place the grievor in the same position a he would have been if no breach of the agreement had occurred.” He determined that the grievor was “entitled to reimbursement for these payments upon production of receipts.”

71I find this reasoning to be persuasive. To the extent that Ms. Haggith can demonstrate that she suffered an actual loss due to a lack of benefit coverage caused by the Employer’s violation of the collective agreement, she would be entitled to recompense. She is not, however, entitled to be paid the premiums.

72In terms of the period Ms. Haggith worked under the February 29, 2009 revision of the Memorandum of Agreement, the parties included in that agreement a detailed description of how the collective agreement would apply to FPTs. In assessing any monies owed to Ms. Haggith, the parties should include the transcript hours that Ms. Haggith worked, based on the formula set out in Table 1, up to 36.25 hours per week. The issue of overtime will be addressed subsequently below.

A. Conversion

73One of the key issues, other than the page/hour rate, is whether Ms. Haggith should have been converted to full-time status, and if so, when. The Union argues that Ms. Haggith’s contractual entitlements “crystallized” in 2003, when the Union’s policy grievance was filed. At that time, it submits, Appendix 32 did not exist. The Union submits that if Ms. Haggith’s hours in regard to the production of transcripts are included in her total hours, she should have been converted. It submits that given the ongoing need for transcription services, there can be no question that there is a “continuing need” for the work. In the Union’s submission, under the facts of this case, it did not matter how the Employer elected to organize the work.

Article 31.15 in the 2002-2004 collective agreement states:

Article 31A.15 CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS

31A.15.1.1 Where the same work has been performed by an employee in the Unclassified Service for a period of at least eighteen (18) consecutive months…, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work.

31A.15.2. For the purpose of Article 31A.15 “full-time” shall mean a minimum of one thousand seven hundred and thirty two and three quarter (1,732.75) straight time hours…in each year….

The same language appears in the 2005-2008 collective agreement.

74The Union, of course, calculates Ms. Haggith’s transcription hours based on its 1.5 page/hour formula, and submits that she should have been converted to full-time status in January 2006. It further contends, in the alternative, that she could have been converted, under the 5 page/hour calculation, in either 2008 or 2009. The Union submits that because her contractual entitlements crystallized in 2003, when the grievance was filed, Appendix 32 is irrelevant to her claim and does not apply.

75The Employer contends that Article 32 clearly applies and precludes the conversion of Ms. Haggith to regular full-time status. It submits that the parties agreed upon the FPT classification for unclassified court personnel, including Court Reporters, on June 24, 2005. It asserts that in that agreement, the parties turned their minds to which provisions in the collective agreement would apply and agreed that Article 31, including 31A.15, would not apply. It cites Re OPSEU (Vitorino et al.) and Ministry of Government Services, GSB No. 2009-1293 (Abramsky) at par. 22 for the proposition that such restrictive language “clearly limits the articles that apply….” The Employer submits that the Union cannot simply ignore the parties’ agreement concerning FPTs simply because the grievance was filed in 2003. The Employer notes that the Board’s decision, issued on July 27, 2006, was issued after the FPT agreement, and that in determining remedy the Board should not ignore that agreement.

76The Employer further contends that even if the conversion provision applied to Ms. Haggith, she did not meet the criteria found in the provision. It submits that she did not work the requisite hours, nor has the Ministry determined that there is a “continuing need for the work on a full-time basis.” Re OPSEU (Policy Grievance) and Ministry of Finance, GSB No. 1237/98 (Briggs); Re OPSEU (Lynch-Burrus) and Ministry of Community & Social Services, GSB No. 1078/92 (Dissanayake); Re OPSEU (Mistry) and Ontario Human Rights Commission, GSB No. 0569/96 (Verity).

77Until June 24, 2005, an unclassified employee had rights under Article 31 of the collective agreement, including Article 31A.15 – if the criteria for conversion were met. The calculation of transcript hours, however, must be based on Table 1. Using those figures, I do not believe that Ms. Haggith had the requisite hours (1732.75) to qualify for conversion in the eighteen months from January 2004 to June 2005, or from June 2004 to December 2005. Further, even if she did have the requisite hours, the second part of the standard would also have to be met. There must be a determination, by the Ministry, “that there is a continuing need for that work to be performed on a full-time basis.”

78In Re OPSEU (Mistry), supra, the Union argued that an unclassified intake officer with the Ontario Human Rights Commission should have been converted to full-time classified status because there was a continuing need for intake work to be performed on a full-time basis for at least another year after her contract had been terminated. The Board dismissed the grievance. It acknowledged that there was a continuing need for the work, but not necessarily on a full-time basis. It held, at p. 18:

The issue turns not merely on an ongoing need for the work to be done but on an ongoing need for the work to be done on a full-time basis. It is without controversy that the Commission has the right to reorganize the workplace to meet the existing workload and in so doing to determine the complement of classified staff.

As the work could be done by existing staff, “there was no continuing need for work to be performed on a full-time basis so as to require the Commission to establish an additional classified position.”

79Without question, there is a “continuing need” for the production and certification of transcripts. The issue in regard to conversion, however, is whether the Ministry, acting in a bona fide manner, has determined that there is a “continuing need for that work to be performed on a full-time basis”. Therefore, under the case law, contrary to the Union’s assertion that how the Employer elects to organize the work force is irrelevant – it is highly relevant, provided that the Employer acted in good faith. There is no evidence, and no assertion, that the FPT agreements were agreed to – by either party - in anything but good faith.

80This is another example of trying to “reverse engineer” the past, arising from the fact that transcript work was not treated by the Employer as bargaining unit work, despite the Board’s July 2006 decision. Accordingly, the Ministry’s “intent” as to this work has to be determined by its actions, generally, in regard to Court Reporters.

81In light of the parties’ June 24, 2005 agreement, I cannot conclude, on the balance of probabilities, that the Ministry “determined that there is a continuing need for that work to be performed on a full-time basis.” Quite to the contrary, the June 2005 agreement creates an entirely new category of employee for the Ministry to meet its operational needs – the FPT employee, and by agreement of the parties, Article 31 no longer applied. The June 24, 2005 Memorandum of Agreement was “effective as of the date of ratification of the collective agreement”, was “considered part of the collective agreement.”

82With the June 2005 agreement, the collective agreement applicable to Ms. Haggith changed. Just because the policy grievance was filed in 2003 does not mean that changes to the collective agreement become irrelevant. The parties’ respective rights and obligations are not frozen in time, and changes to the agreement, including changes to the wage rate and benefits, cannot be ignored as if they did not exist. They do not apply retroactively – unless specifically agreed otherwise – but they apply once negotiated.

83In this regard, it is also relevant that the FPT agreement was revised by the parties on February 26, 2009. Once again, the parties turned their minds to the applicable collective agreement provisions which applied to FPTs such as Ms. Haggith, and Article 31 was not included.

84The June 2005 agreement, and the successor agreement regarding FPTs, significantly impacts the issue of conversion in two ways. First, it establishes that, after that date, the Employer did not intend that the ongoing need for the work would be done on a full-time basis. Second, as unclassified employees became classified FPTs, conversion was no longer applicable to them as FPTs under the agreement. Consequently, under the collective agreement in force at the relevant time periods, Ms. Haggith was not eligible for conversion.

B. Premium Payments

85The Union asserts that, under the collective agreement, Ms. Haggith should receive premium payments – overtime, shift premium, holiday pay, rest periods, stand-by pay, call-in pay, travel pay and time, and meal allowances - for the time she worked to produce transcripts. It relies on UN 6 (Shift Premium); UN 8 (Overtime), UN 9 (Call Back), UN 10 (Stand-by Time), UN 11 (On-Call Duty), UN 12 (Meal Allowance), UN 13 (Holiday Payment), Article 13 (Kilometric Rates), and Article 14 (Time Credits While Traveling).

86The Employer asserts that no premium payments are owed. It submits that the parties, in Appendix 32, turned their minds to which provisions of the collective agreement applied to Court Reporters and agreed that only those provisions applied, no others. It further submits that under the terms of the Appendix 32 and UN provisions relied on by the Union, Ms. Haggith has not met the criteria for such premium payments, and submits that such claims are speculative. In support of its position, the Employer cites Re OPSEU (Vitorino et al.) and Ministry of Government Services, GSB No. 2009-1293 (Abramsky, 2010); Re OPSEU (James et al.) and Ministry of Finance, GSB No. 2003-0232 (Abramsky, 2004); Re OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No. 1211/99 (Petryshen, 2001); Re OPSEU (Group Grievance) and Ministry of the Attorney General, GSB No. 0683/99(Abramsky, 2002); Re OPSEU (Adams Group) and Ministry of the Solicitor General and Correctional Services, GSB No. 0389/97 (Brown, 2000); Re OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 2002-2427 (Brown, 2004).

1. Overtime

87The evidence established that Court Reporters, within the guidelines established by the Ministry, generally have flexibility as to when they type transcripts. It also establishes that they can turn down transcript work or transfer typing responsibility, even though there is a very strong preference of the Court Reporters to keep the transcript work and the fees generated. Court Reporters, as Ms. Dunn phrased it, have the “right of first refusal” in regard to transcript work, but they do have the right to turn it down, transfer it to other Court Reporters, or seek assistance from supervision. The Ministry establishes time lines for when transcripts are due, but even that appears to have some limited flexibility. The exception is when an overnight transcript is ordered to be produced by a judge, or a very quick turn-around is required. Then there is no time to delegate and the transcript must be done immediately.

88Entitlement to overtime, under any of the relevant provisions in the collective agreement – Article 31A.3 or Appendix 32 – depends on it being “authorized” by the Employer. When Ms. Haggith was an unclassified employee, overtime applied to “authorized hours of work performed: … (d) in excess of thirty-six and one-quarter (36 ¼) or forty (40) hours per week where employees do not have regularly scheduled work days.”

89Under the 2005 Memorandum of Agreement, Section 2, Hours Worked Over Annual Requirement, states:

In addition to the minimum number of hours provided in an employee’s assigned annual hours category, the Ministry may assign additional overage hours up to 10 percent (10%) of employees’ assigned annual hours category. All hours worked prior to reaching the 10%) above threshold will be paid at straight time.

At the end of the averaging period, any excess hours standing to the employee’s credit over and above the 10% overage will be considered overtime.

Although the language of the 2005 FPT agreement may be different, it still provided that the Ministry had to “assign” additional overage hours.

90Similarly, as a FPT under the amended Appendix 32 of the current collective agreement, Section 3(d) states: “[a]ll authorized hours worked by flexible part-time employees in excess of 36 ¼ hours per week will be paid at the time and one half (1½ ) rate ….”

91The Union does not dispute that overtime must be “authorized” but submits that because transcript work is part of the job, it is therefore “authorized.” It notes that the “client” for a transcript is often the Ministry itself, so it submits that it is ridiculous to assert that such work is not “authorized.” It contends that it was “absolutely authorized.” It also argues that was rare that others would type Ms. Haggith’s transcripts.

92There is no question that transcription is part of the job and, in that sense, “authorized.” But what is at issue is whether the work was authorized on an overtime basis. Under the collective agreement, overtime is not something that an employee can decide to undertake on his or her own initiative. Because there is a cost – and a significant one – overtime must be specifically authorized by the Employer, or must be “deemed” to have been authorized.

93Clearly, there was no explicit authorization by the Ministry for Ms. Haggith to produce transcripts on an overtime basis. Further, the evidence of Ms. Dunn and Ms. Mann was that employees could come to them, and do come to them, to request assistance with transcripts and relief from transcript production. Ms. Haggith testified that there were times that she delegated typing to others, and that she assisted other Court Reporters who became overwhelmed. She acknowledged that there was a “stand by” Court Reporter for overflow transcription work, and that she could have gone to her supervisor for transcript assistance, but never did. Consequently, in the main, there were avenues that Ms. Haggith could have utilized to avoid having to work in excess of 36¼ hours in a week.

94An exception is when authorization to work overtime may be “deemed” to occur, such as in the case of an overnight or expedited transcript required by a judge, or a quick turn around is mandated and the work cannot be assigned to another reporter. An example of this would appear to include the testimony of Ms. Black in regard to the overnight transcript she was required to produce. The situation is different if a Court Reporter chooses to work late or on weekends to complete transcripts but it is not required to do so.

95In Re OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No. 1211/99 (Petryshen), the Board determined at p. 15, based on earlier jurisprudence, that a shift premium did not have to be paid where the hours worked were the choice of the employee, not the employer. The Board stated that the prior decisions held that “the Collective Agreement does not require the employer to assume a premium cost for accommodating an employee’s preference for more personally suitable working hours.” Likewise, where a Court Reporter chooses to work late or on weekends to work on transcripts, but is not required to do so by the Employer, an overtime premium need not be paid.

96Further, as an unclassified employee, Ms. Haggith did not have regular hours. Her calendars show that she was not in court each workday, leaving time available to produce transcripts, and that many days were “short” days when transcripts could have been typed. The same is true when Ms. Haggith worked as a flexible part-time employee under the 2009 agreement. She would be scheduled 19.6 hours per week in court, leaving 16.65 hours (over two work days) per week to type before exceeding 36.25 hours. For those two periods of time, Ms. Haggith would only be entitled to overtime for transcription hours that may be “deemed” authorized on an overtime basis after 36.25 hours in a week.

97The situation is a bit more complicated for the period of time that Ms. Haggith worked as an FPT under the 2005 Memorandum of Agreement. Under that agreement, overtime – if authorized, or deemed authorized - kicks in after 1100 hours. In my view, however, the regular production of transcripts is to be paid at straight time even after 1100 hours, unless authorization for overtime may be “deemed” to have occurred. Treating all transcription hours over 1100 as overtime is not reasonable under the circumstances. It would, essentially, transform regular transcript production into overtime. Further, it would treat FPTs far better than full-time Court Reporters, or indeed any other employee in the public service. It would also be significantly better than what is required under the Employment Standards Act. I cannot infer such an intent from the 2005 agreement, which preceded the July 27, 2006 decision.

98Consequently, for the periods that Ms. Haggith was an unclassified employee and an FPT under the 2009 Agreement, she is entitled to overtime on those occasions where she was required to produce an overnight or expedited transcript, which could not be delegated and which required her to work in excess of 36¼ hours in a week. In addition, Ms. Haggith, as an FPT under the 2005 Agreement, would be entitled to overtime after 1100 hours, but only for those situations where she may be “deemed” to have authorization to work overtime.

2. Holiday Pay

99As an unclassified employee, Ms. Haggith was entitled to 4.6% of gross pay in lieu of Holiday Pay pursuant to Article 31A.5. She would also be entitled, if she was “required to work” on a holiday, at two times her hourly rate for all hours worked. The analysis applied to overtime is equally applicable here. Entitlement depends on whether the Employer “required” Ms. Haggith to work on a holiday, or may be deemed to have required it.

100As a FPT, from September 25, 2006 to the amended agreement in 2009, the parties agreed that Holiday Pay under Article 47 or UN 13 would not apply. Nor does it apply under the revised FPT agreement.

101The only evidence that Ms. Haggith was required to work on a holiday was Thanksgiving Day in 2006 – after she became a FPT employee. Ms. Haggith also testified that she had to prepare a transcript during her Christmas vacation in 2006. There was no evidence, however, that she actually worked Christmas Day, Boxing Day or New Year’s Day. Further, these holidays took place after she became an FPT and Holiday Pay was inapplicable under the collective agreement.

3. Shift Premium

102As an unclassified employee, the grievor was eligible for premium pay under UN 6, if she met the requirements of the provision. As an FPT under the June 24, 2005 Memorandum of Agreement, there was also no entitlement to shift premiums. Article UN 6, Shift Premiums, was not one of the articles that the parties agreed applied to FPTs in the 2005 agreement. Article UN 6 was included for FPTs in the revision to Appendix 32, which was effective upon ratification of the 2009-2012 Collective Agreement and “shall have no retroactive effect.”

103Article UN 6 in the 2002-2004 and 2005 – 2008 collective agreement, provided, in pertinent part, as follows:

UN 6.1.3 Effective on May 5, 2002, an employee shall receive a shift premium of seventy-eight cents (78¢) per hour for all hours worked between 5:00 p.m. and 7:00 a.m.. Where more than fifty percent (50%) of the hours worked fall within this period, the premium shall be paid for all hours worked….

UN 6.2 Notwithstanding Articles … UN 6.1.3 where an employee’s hours of work normally fall within 7:00 a.m. and 5:00 p.m., the employee shall not be entitled to receive a shift premium for hours worked between 5:00 p.m. and 7:00 a.m.

UN 6.4 Shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he or she would otherwise be entitled to a shift premium.

The contract language, except in terms of the amount of the shift premium, is virtually identical in the 2009-2012 collective agreement.

104Article UN 6.1.3 provides that a shift premium payment “shall” be paid for “all hours worked between 5:00 p.m. and 7:00 a.m.” Under UN 6.2, however, where an employee’s hours of work “normally fall between 7:00 a.m. and 5:00 p.m.” no premium is required for hours worked between 5:00 p.m. and 7:00 a.m. In addition, under UN 6.4, no shift premium is paid “to an employee who for mutually agreed upon reasons, works a shift for which he or she would otherwise be entitled to a premium.”

105Read as a whole, it seems clear that the parties limited shift premium pay to those employees who are required by the employer to work from 5:00 p.m. to 7:00 p.m., and to preclude such payment to those who regularly work from 7:00 a.m. to 5:00 p.m., but also work, at times, after 5:00 p.m., or who choose or prefer to work evenings and nights. This is consistent with the Board’s jurisprudence. In Re OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No. 1211/99 (Petryshen), the Board determined at p. 16, that shift premiums were to compensate employees who were required by the employer to work less desirable hours:

Premium payments are intended to provide additional compensation to employees who work during less desirable periods of time. [Article] 6.4, in effect, provides that a premium will not be paid for work during those less desirable hours when an employee requests to work a particular shift as a matter of personal preference or convenience and that request is agreed to by the Employer. In these circumstances, the working hours can no longer be considered to be less desirable and the Employer is not required to pay the premium.

106The evidence shows that Ms. Haggith was normally scheduled for taking the record in court, from between 7:00 a.m. to 5:00 p.m. As an FPT, she also had time, on non-scheduled days and when court ended early, to type transcripts during day-time hours. Consequently, she falls within the exception to Article UN 6.1 found in UN 6.2. To the extent Ms. Haggith preferred to type transcripts during the evening (if she had other commitments or responsibilities during the day) that would not attract a premium under UN 6.4.

107The evidence was clear that many Court Reporters type transcripts in the evening, or early in the morning, or on weekends. For some, such as Ms. Dunn who liked to type transcripts in the quiet hours of 4:00 a.m. to 7:00 a.m., that was her preference. Ms. Mann’s preference was to type transcripts in the evening. For others, it felt “required” because they had to produce the transcripts within a set period of time, and the only time available was evenings and weekends. But those Court Reporters would fall under the exception in UN 6.3, because their hours of work “normally fall” between 7:00 a.m. and 5:00 p.m.

4. Stand By and On-Call Duty

108As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements, Ms. Haggith was entitled to Stand-By Time, UN 10, and On Call Duty, UN 11, if she met the requirements for receiving such premiums. She was not entitled to them under the June 24, 2005 Memorandum of Agreement. Article UN 11, but not UN 10, was added, however, in the February 28, 2009 revision.

These provisions state as follows, in relevant part:

Article UN 10 – STAND-BY TIME

UN 10.1 “Stand-By Time” means a period of time that is not a regular working period during which an employee is required to keep himself or herself:

(a) immediately available to receive a call to return to work, and

(b) immediately available to return to the workplace.

UN 10.2 No employee shall be required to be on stand-by unless such stand-by was authorized in writing by the supervisor prior to the stand-by period, except in circumstances beyond the Employer’s control.

UN 10.3 Where stand-by is not previously authorized in writing, payment as per UN 10.4 shall only be made where the supervisor has expressly advised the employee that stand-by duty is required.

UN 10.4 When an employee is required to stand-by, he or she shall receive payment of the stand-by hours at one half (1/2) his or her basic hourly rate with a minimum credit of four (4) hours pay at his or her basic hourly rate.

Article UN 11 – ON –CALL DUTY

UN 11.1 “On-Call Duty” means a period of time that is not a regular working period, overtime period, stand-by period or call back period during which an employee is required to respond within a reasonable time to a request for:

(a) recall to the work place, or

(b) the performance of other work as required.

UN 11.2 It is understood that a return to the workplace may not be necessary in all situations.

UN 11.5 No employee shall be required to be on-call unless such on-call duty was authorized in writing by the supervisor prior to the on-call period except in circumstances beyond the Employer’s control. …

UN 11.6 Where on-call is not previously authorized in writing, payment as per Article UN 11.7 shall only be made where the supervisor has expressly advised the employee that he or she is on-call.

UN 11.7 Effectively February 26, 2009, where an employee is required to be on-call, he or she shall receive one dollar and twenty-five cents ($1.25) per hour for all hours that he or she is required to be on-call.

109In Re OPSEU (Adams Group) and Ministry of Solicitor General and Correctional Services, GSB No. 0389/97 (R. Brown), the Board distinguished between an employee being required to have “general availability” to work and being required to work, with the possibility of discipline if they do not. The Board determined at p. 17 as follows:

Both on call and stand-by pay are designed to compensate an employee for being available in case he or she is needed to work. The tacit assumption underlying each form of payment is that, throughout the period for which it is paid, an employee must take calls and must work if asked. As employer counsel argued, the collective agreement should not be interpreted so as to entitle an employee to payment for any period when he or she is permitted either not to receive a call or not to work if contacted.

Under the facts in that case, although the employees were “required to maintain a level of ‘general availability’ satisfactory to management,” they could miss a call or refuse to work, and “they were not disciplined.” Consequently, he concluded at p. 17 that the unclassified staff involved in that matter “were not required to maintain either of the states of readiness described in the collective agreement” and therefore were “not entitled to stand-by or on-call pay.” Re OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 2002-2427 (R. Brown).

110The evidence here did not establish that Ms. Haggith was ever asked to be ready to return to work immediately to produce a transcript under UN 10, nor was any such requirement to be on stand-by authorized in writing by her supervisor or was she expressly advised of such. Likewise, there is no evidence that she met the requirements for “on call duty” under UN 11. While there might be some transcript requests that required prompt attention, there was no written or verbal authorization for on call duty, nor was there evidence that Court Reporters were ever disciplined in this regard.

5. Meal Allowance

111As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements, Ms. Haggith was entitled to a meal allowance under UN12, if the requirements for this benefit were met. It provides:

ARTICLE UN 12 – MEAL ALLOWANCE

UN 12.1.1

An employee who continues to work more than two (2) hours of overtime immediately following his or her scheduled hours of work without notification of the requirement to work such overtime, prior to the end of his or her previously scheduled shift, shall be reimbursed for the cost of one (1) meal to six dollars ($6.00) except where free meals are provided or where free meals are provided or where the employee is being compensated for meals on some other basis.

UN 12.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his or work place.

UN 12 was not one of the provisions applicable to FPTs under the 2005 Memorandum of Agreement, nor was it included in the 2009 revision.

112Based on the evidence, and the Board’s case law, Ms. Haggith is not eligible for a meal allowance. At the time, as an unclassified, on-call employee, she did not have regularly “scheduled hours.” In Re OPSEU (Group Grievance) and Ministry of Attorney General, GSB No. 0683/99 (Abramsky), at p. 11, the Board determined that unclassified court personnel did not have regularly scheduled hours:

Accordingly, the court does not have specific, “scheduled hours”, and neither do the grievors. The court – and the grievors – have a specific starting time, but they do not have a specific ending time. To have “scheduled hours”, there must be both a specific starting and ending time….

113Working more than two hours of overtime beyond one’s “scheduled hours” without notice is one of the requirements of a meal allowance. As an unclassified, on-call Court Reporter, Ms. Haggith did not have regularly “scheduled hours” and therefore could not meet the contractual requirements for a meal allowance under UN 12. Adding her transcript hours into the calculation does not change this because she had flexibility as to when transcription was done. Nor, except in the situations where overtime may be “deemed” to have been authorized, can it be held that she worked “overtime.”

6. Rest Periods

114UN 7, Rest Periods, applied to Ms. Haggith as an unclassified employee under the 2002-2004 and 2005-2008 collective agreements, as well as an FPT under both the 2005 Memorandum of Agreement and the 2009 revision. UN 7, in all applicable agreements, provides as follows:

ARTICLE UN 7 – REST PERIODS

UN7.1. The present practice for rest periods in each shift shall be maintained.

115In order to have a “shift”, the GSB case law requires “a specified time of work which starts and ends on set times on a regular basis.” Re OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No. 1211/99 (Petryshen); Re OPSEU (James et al.) and Ministry of Finance, GSB No. 2003-0232 (Abramsky). As an on-call unclassified employee, with hours tied to the hours that a court was in session, Ms. Haggith did not have a regular shift.

116There was no evidence concerning scheduling in regard to Ms. Haggith’s work as an FPT, except that she was scheduled 19.6 hours per week. To the extent she had a regular in-court shift, any practice of rest periods would have applied to her. The inclusion of transcript work, however, would not increase that because that work was not “scheduled” by the Ministry as part of a regular shift. Ms. Haggith could perform that work when she wanted – during the day, evening, or the weekend. She did not have a regular shift, with specific starting and ending times in terms of transcript work.

7. Call-Back and Travel Pay/Kilometres

117As an unclassified employee under the 2002-2004 and 2005-2008 collective agreements, Ms. Haggith was not eligible for Call Back pay under UN 9. UN 9 did not apply to unclassified employees. Nor did it apply under the 2005 Memorandum of Agreement. Instead, the parties agreed, in Section 7, as follows when an FPT is directed to return to work:

SECTION 7 – ADDITIONAL REPORTING ALLOWANCE

Where the employee has been directed to return to work on the same day and there is no work or less than two (2) hours work, he or she shall receive an additional two (2) hours’ credit towards his or her annual assigned hours.

UN 9 was added to the FPTs in the 2009 Memorandum of Agreement. It provides:

ARTICLE UN 9 – CALL BACK

UN 9. 1 An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at one and one-half (1½ ) times his or her basic hourly rate. …

The Union asserts that this provision applies when Ms. Haggith was required to return to work for transcript production – to pick up the materials required to produce a transcript on short notice.

118The Union further submits that there should be a travel allowance for reporting back to work. Article 13 (Kilometric Rates) and Article 14 (Time Credits While Travelling) applied to Ms. Haggith as an unclassified employee and as a FPT, under both the 2005 and 2009 agreements. Article 13 and 14, provide, in relevant part, as follows:

ARTICLE 13 – KILOMETRIC RATES

13.1 If an employee is required to use his or her own automobile on the Employer’s business the following rates shall be paid effective April 1, 2001: …

ARTICLE 14 – TIME CREDITS WHILE TRAVELLING

14.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. …

14.3 When travel is by automobile and the employee travels directly from his or her home or place of employment, time will be credited from the assigned hour of departure until he or she reaches his or her destination and from the assigned hour of departure from the destination until he or she reaches his or her home or place of employment.

14.5 When an employee is required to travel on his or her regular day off or a holiday listed in Article 47 (Holidays), he or she shall be credited with a minimum of four (4) hours. …

119The Employer argues that the Employer imposed no requirement that Ms. Haggith return to work in order to produce a transcript, and that she has established no entitlement to call back pay or travel entitlements.

120There was no evidence in the record that Ms. Haggith was required to return to work by the Employer in order to retrieve the tapes and log notes to produce a transcript on short notice, after the August 29, 2009 collective agreement came into effect. Prior to that time, Section 7 of the June 24, 2005 agreement would apply. Again there is no evidence that Ms. Haggith was directed to return to work by the Employer to produce a transcript, on the same day she was already scheduled. Nor is she entitled to travel time reimbursement or kilometre reimbursement, under the terms of Articles 13 and 14.

8. Vacation Credits

121The Union asserts that Ms. Haggith is owed 110 hours toward vacation credits, based on the time that she worked on a transcript during her Christmas vacation in 2006. The evidence established that the request for the transcript came in mid-December 2006 and that she completed the work and billed for the transcript on January 17, 2007. The actual days (between mid-December and mid-January) that she worked on the transcript is not in the record, nor were her actual vacation days. There is no evidence that Ms. Haggith tried to enlist anyone else to assist her with that work, or that she approached supervision for help. There is, therefore, insufficient evidence that she was required to perform that work during her vacation by the Employer. Under these circumstances, I conclude that she is not entitled to restoration of her vacation credits.

9. Out of Pocket Expenses

122The Union asserts that Ms. Haggith should be reimbursed by the Employer for the expenses she incurred in the production of transcripts – her computer, transcriber, printer, paper, ink, binding machine, office furniture, filing cabinets and so forth. The Employer contends that there is no collective agreement provision under which Ms. Haggith is entitled to such expenses.

123This is another one of those situations of trying to fit a “circle into a square.” By treating Court Reporters as independent contractors for transcription work, the Employer required them to work from home (or their own office) and supply the “tools” they required. It is an unusual, if not unique, situation – and one that the collective agreement simply does not address. The only provisions in regard to “expenses” under the collective agreement pertain to meals and relocation expenses. The situation is further complicated because most of the equipment for which the Union seeks reimbursement may be used for non-transcription purposes – the computer, the printer, the office furniture and supplies. The transcriber, in contrast, is clearly limited to transcript production. I would note that in the July 2006 decision there was evidence that transcribers were, at times, provided by the Ministry.

124Based solely on the collective agreement, there is no entitlement to reimbursement. I cannot conclude that the Employer would have paid for this equipment and/or supplies if it had not violated the collective agreement. Clearly, this should be (and could have been) the subject of collective bargaining.

3. Off-Set of Transcription Income

125The Union argues that there should be no set off of the transcript income that Ms. Haggith earned because it was paid pursuant to statutory regulation. It submits that she is entitled to both payments because the payments flow from separate legal documents. She is entitled, the Union asserts, to wages under the collective agreement and payment for transcripts under the regulation. It submits that this would not constitute an improper double recovery. It also contends that to allow the deduction would amount to an improper amendment of the collective agreement. In support, the Union cites to Re Altman v. Steve’s Music Store Inc. 2011 ONSC 1480, [2011] O.J. No. 1136 (Ont. Sup. Ct. J.); Re Sills v. Children’s Aid Society of the City of Belleville 2011 ONCA 220, [2011] O.J. No. 1577 (Ont. C.A.); Re Antonacci v. Great Atlantic & Pacific Co. of Canada 2000 CanLII 5496 (ON CA), [2000] O.J. No. 40 (Ont. C.A.).

126The Employer asserts that payment of wages for the production of transcripts without a set off for the income that Court Reporters have already received for such work would constitute a double recovery, and make Ms. Haggith more than “whole.” It submits that there is no evidence that the Employer, or the parties, intended that Court Reporters should receive both the regulated rate and wages. It submits that the regulation rate was predicated on the Court Reporters working as independent contractors when they produced transcripts, not as employees. It argues that just because transcript fees are governed by regulation does not exempt them from the principles of mitigation that all earnings should be deducted from a damage award where there is a violation of a contract. In support, the Employer cites to Re Michaels v. Red Deer College, supra; Re City of Toronto and Toronto Civic Employees’ Union, Local 416 (Braithwaite), supra; Re OPSEU (Grinius) and Ministry of Citizenship, supra; Re Sylvester v. British Columbia 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315 (S.C.C.); Re Kolacynski v. Benz Sewing Machines Ltd. [2002] O.J. No. 1117 (Ont. S.C.J.); Re Parsons v. IMP Group Ltd. [2007] C.L.A.D. No. 377 (Flynn); Re Dowsley v. Viceroy Fluid Power International Inc. 1997 CanLII 3448 (ON CA), [1997] O.J. No. 2360 (Ont. C.A.)

127In Re Sylvester v. British Columbia, supra, the Supreme Court of Canada was deciding whether disability payments received by the employee during his notice period should be deducted from the damage award, where the disability plan was established and paid for solely by the Employer. The Court decided that “[t]he question of deductibility …turns on the terms of the employment contract and the intention of the parties.” (Par.12) Under the facts there, the Court determined that there was no intent that the employee receive both disability benefits and damages for wrongful dismissal. The two payments were based on opposite assumptions about his ability to work – damages based on the premise that he would have worked during the notice period, and disability payments on the premise that he could not work. Further, had the employer provided proper notice and not breached the employment contract, the employee would not have received both disability payments and salary during the notice period. The Court noted that there might be “cases where an employee will seek benefits in addition to damages for wrongful dismissal on the basis that the disability benefits are akin to benefits from a private insurance plan for which the employee has provided consideration” but that was not the case there. (Par. 22).

128The decisions in Re Sills v. Children’s Aid Society of the City of Bellville, supra and Re Altman v. Steve’s Music Store, Inc., supra, rely on the distinction noted in Re Sylvester, supra. In Re Sills, supra at par. 45, the Court stated that it was “reasonable to infer that the parties would agree that an employee should retain disability benefits in addition to damages for wrongful dismissal where the employee has effectively paid for the benefits in question.” This was also the case in Re Altman, supra at par. 112.

129The Supreme Court in Sylvester, supra, also distinguished payments received under a statutory scheme, such as employment insurance and workers’ compensation payments. In Re Dowsley v. Viceroy Fluid Power International Inc. supra, the Ontario Court of Appeal concluded, without much explanation, that workers compensation benefits should be deducted from damages awarded during the notice period.

130It seems to me that none of these cases are directly applicable, but some principles may apply. If one examines the intention of the parties in terms of whether transcript income should be deducted from any contractual violation assessment, one must start with the collective agreement. The collective agreement is silent on the issue of payment for transcript work and there have been no relevant changes to the collective agreement in terms of Court Reporters and transcript work since the decision in this matter in July 2006. The Employer, prior to the decision, treated Court Reporters as independent contractors in connection with this work – with payment/income for such work to be exclusively pursuant to the regulation. It still takes that approach, even though the decision was not appealed. The impact of my decision that the preparation and certification of transcripts is bargaining unit work, however, means that the collective agreement applies. Exactly what that means, in terms of remedy, is what this decision addresses. It seems clear to me, however, that in terms of “intent”, the Employer, at least, did not intend that employees receive both wages and regulated fees. Nor did the Union, prior to the Hunt grievance and my decision. Even after the decision, the “status quo” was continued by agreement for two years, and when neither the remedial issues nor the “go forward” issues could be resolved, the matter came back to me for remedy. There is nothing in the collective agreement, which has not substantively changed, from which I may infer that the parties intended that Court Reporters receive both wages as well as other entitlements under the collective agreement and the regulated fees.

131Under the principles of mitigation, moreover, the transcript income earned by Court Reporters under the regulation should be offset against wages paid for breach of the collective agreement for the same work. In Re City of Toronto, supra, Arbitrator Tacon reviewed both court and arbitration decisions concerning off-sets in regard to wrongful dismissal. She quotes, at par.31, a decision by Arbitrator Richard Jackson in Re Richmond Intermediate Care Society and H.E.U. (Evans), Award No. A-073/00A in which he quotes the following passage from Cockburn v. Trusts & Guarantee Co. (1917), 1917 CanLII 525 (ON SCAD), 38 O.L.R. 396, 33 D.L.R. 159, affirmed, 1917 CanLII 10 (SCC), 55 S.C.R. 264:

…persons who earn monies during periods when they are under an obligation to mitigate their damages are accountable for those monies if the monies are seen as having arisen as a consequence of the breach. That is, just as the offending party must account for all monies lost by reason of the breach, the aggrieved party must account for all monies earned as a consequence of the breach.

Applying that approach to the facts before her, a dispute about whether certain earnings should be offset, Arbitrator Tacon determined as follows at pars. 43 and 44:

[T]he crux of the right to compensation is that the employee be put in the same position as would have obtained, as far as possible, had the breach of the collective agreement (or the right to reasonable notice at common law) not occurred. Implicit is that the compensation reflect actual losses sustained by the employee. To exclude “actual earnings” in calculating “actual losses” is not a sustainable position. …

In summary, based on the cases arising at arbitration and the judicial realm, and consistent with my view of the fundamental principles regarding compensation and mitigation, I find that the grievor’s actual earnings in the two disputed periods are to be included in the set off against the compensation to which he would otherwise be entitled.

132In this case, just as the Employer must account to Ms. Haggith for monies she lost by reason of its breach, Ms. Haggith must account for all monies earned as a consequence of the breach. By treating Court Reporters as independent contractors, and continuing to do so, Ms. Haggith continued to operate as an independent contractor and earned transcript income under the regulation for that work. Her “actual earnings” must be off set against her “actual losses.” Under the circumstances of this case, the fact that her transcription income came about because of regulation of such fees does not preclude it from being offset against the claim she is making for lost wages and benefits for the very same work. Doing so does not amount to an amendment of the collective agreement.

133Transcription income figures are to be determined from Ms. Haggith’s T4A forms and her transcription invoices, not from her tax returns. Her transcription income is to be off set against any monies owed to her by the Employer’s breach of the collective agreement.

4. Income Tax Considerations

134The Employer asserts that the tax savings that Ms. Haggith enjoyed by virtue of her self-employment status under the Income Tax Act and the reduced amounts that she claimed as business income on her tax returns should be considered by the Board in assessing its “make whole” relief. In support, the Employer relies on Re OPSEU (Grinius), supra; Re OPSEU (Fitch) and Uxbridge/Stouffville Ambulance Service, GSB No. 2878/92 (Dissanayake); Re OPSEU (Montgomery/Rankin) and Ministry of Health – Ottawa-Carleton Regional Ambulance Service, GSB no. 2624/94 (Finley); Re OPSEU (Latimer) and Ministry of Community Safety and Correctional Services, GSB No. 1995-0131 (Finley); Re Keizer v. Hanna 1978 CanLII 28 (SCC), [1978] 2 S.C.R. 342 (S.C.C.). The Employer argues that Ms. Haggith’s net income from transcript production as an independent contractor exceeds what her income would have been under the collective agreement, less required deductions, so that she suffered no losses for any of the years in question.

135The Union argues that the Employer should reap no financial benefit from its continuing violation of the collective agreement. It submits that the Employer is improperly attempting to apply Re OPSEU (Grinius), which was to foster a make whole remedy by considering the negative tax consequences of a lump sum payment. It argues that it would be wrong for the Employer to violate the collective agreement by treating Ms. Haggith as an independent contractor, instead of under the collective agreement, and then try to take advantage of that fact – when it created the situation in the first place.

136There is dicta in Re OPSEU (Grinius), supra, that supports the Employer’s position. In that decision, Vice Chair Fisher determined, at p. 10, that the grievor “suffered a demonstrable and significant loss due to the extra tax burden as a result of receiving four years’ income in one year.” He also determined that the remedial award had to consider such tax consequences. As he concluded at pp. 13-14:

We disagree with the Employer that this is strictly a problem between the Grievor and Revenue Canada. The employment relationship between these parties exists in the legal framework of the laws of Canada, including the Income Tax Act. It is within that existing framework that the contractual damages are calculated. If the present tax laws are such so that receiving a large lump sum is less favourable than periodic payments, then it is proper that the Employer pays the costs caused by this situation, as they caused the dismissal in the first case. If on the other hand, the tax law was such that it was more favourable for an employee to receive a large lump sum rather than periodic payments, it would be open to an Employer to argue that it should not have to pay the employee the entire amount of his back wages, but only that amount, which would put the employee in the same net tax position as if he had received his regular wages during the same period.

The guiding principle with respect to compensation awards is that a reinstated employee is to be put in the same economic position he or she would have been had the dismissal not occurred. This means that the employee should not be any worse off, nor any better off than if the dismissal had not occurred in the first place.

137Although Re OPSEU (Grinius) has been followed, there are no decisions in which the Employer has argued that it should not have to pay the entire amount of an employee’s back wages in order to place the employee in the “same net tax position” as if he had received his regular wages during the same period – until now. The unusual facts of this case – and the significant deductions permitted to self-employed persons under the Income Tax Act as well as the ability to self-report income – create the flip-side noted in Re OPSEU (Grinius) – where the Employer is arguing that the tax advantages enjoyed by Ms. Haggith, as reflected in her income tax returns, should lower, or eliminate, any potential liability for wages and other contractual benefits that it might owe her.

138I note that the cited portion of Re OPSEU (Grinius) is dicta – not the holding of the case. It is therefore not binding on me, and I may consider the positions of the parties on their own merits.

139After careful consideration, it is my view that it would be inappropriate to consider the tax benefit enjoyed by Ms. Haggith in determining a remedial award in this case. In so concluding, I concur with the decision of the Ontario Court of Appeal in Re Antonacci v. Great Atlantic & Pacific Co. of Canada, supra. In that case, the Court determined that the Workers’ Compensation Benefits received by Mr. Antonacci during his notice period were deductible from the damage award. The Employer argued, however, that since Workers’ Compensation benefits were not subject to income tax, the benefits should be “grossed up” to reflect that benefit, for if not, the plaintiff would effectively be overcompensated by the Employer. The Court of Appeal rejected that approach, stating at par 21:

The “loss” resulting from any resulting overcompensation is to Revenue Canada, not to the employer. The rule against double recovery is not absolute. It admits of certain exceptions, particularly where there are competing policy considerations. In a case such as this one, it would be against public policy to make it more profitable for the employer to pay damages for the breach of contract than to perform the contract. Further, to require an assessment of the plaintiff’s liability to pay tax in every case where deductions are made from a damage award would give rise to considerable practical difficulties that would result in an unwarranted increase in the cost of litigation. …

140In this case, despite the Board’s July 2006 decision, the Employer has continued to treat Court Reporters as independent contractors in regard to transcript production, rather than as employees with rights under the collective agreement. I conclude that the same public policy considerations applicable in Re Antonacci, supra, are applicable here. As the Court stated: “It is against public policy to make it more profitable for the employer to pay damages for the breach of contract than to perform the contract.” Allowing a net tax comparison, as the Employer suggests, would reduce any amounts the Employer owes to Ms. Haggith, making it more profitable for it to continue its breach rather than abide by the collective agreement.

141It has been the Employer’s choice to continue to treat Court Reporters as independent contractors for the production of transcripts. This, in turn, requires Court Reporters to treat their transcription income as business or professional income, and they have every right, under the circumstances, to take full advantage of the deductions and benefits offered to “self-employed” individuals under the Income Tax Act. Any issues created by the manner in which Ms. Haggith completed her tax returns are between her and Revenue Canada. The Employer should not be benefitted by reducing any monetary compensation owed to Ms. Haggith.

142It is possible that this determination may, as the Employer submits, put Ms. Haggith in a situation in which she is “better off” than if the contractual violation had not occurred. The Ontario Court of Appeal, in Re Antonacci, supra, faced a similar contention, but ruled that the “rule against double recovery is not absolute.” Simply put, it is untenable, and contrary to public policy, for the Employer to continue to violate the collective agreement yet seek to benefit in terms of remedy from the situation its actions created.

143This ruling is not to “punish” the Employer for its actions. It is not a form of punitive damages: Re OPSEU (Gibbon) and Ministry of Correctional Services, supra. As counsel for the Employer correctly stated, the Employer’s failure to abide by the Hunt decision is not before me. Instead, for the reasons set out above, I conclude that the Employer should not benefit, in terms of remedy, from its actions.

Conclusion

1. The evidence establishes, on the balance of probabilities, that the transcription page/hour rate is as follows, and Ms. Haggith’s transcription hours must be calculated on this basis:

(a) Beginner (0 to 1 year) – 6.35 pages/hour

(b) Intermediate (1 to 2 years) – 8.22 pages/hour

(c) Experienced (2+ years) – 9.76 pages/hour

2. Ms. Haggith is not entitled to conversion under Article 31A.15.

3. Ms. Haggith is entitled to overtime only for instances where authorization to work overtime may be “deemed” to have occurred.

4. Ms. Haggith is not entitled to receive premiums for insurance that the Employer did not pay, but would be entitled, subject to proof, for any losses caused to her.

5. Ms. Haggith is not entitled to the additional benefits under the collective agreement sought by the Union.

6. Under the principles of mitigation, transcript income earned by Ms. Haggith under the regulations is to be offset against any monies owed to her by the Employer under the collective agreement.

7. The Employer is not entitled to a “net/net” income comparison in calculating any monies owed to Ms. Haggith.

8. This matter is remitted back to the parties for the calculations to determine Ms. Haggith’s losses, if any, as set out in this decision.

9. I shall remain seized.