GSB#2012-3906

UNION#2012-0530-0074

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Robbescheuten)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Belinda A. Kirkwood

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 13, 2015

Decision

1The Employer recently filed an appeal under the Workplace Safety and Insurance Act, 1997 (“WSIA”) contesting the Grievor’s continuation of loss of earnings, which she had been receiving as a result of an injury in April 2011.

2The Union claims that by filing such an appeal, the Employer breached the Memorandum of Settlement (“MOS”), entered into by the Union, the Grievor, and Employer on June 20, 2013 settling all issues arising from the Grievor’s employment and termination.

3The Employer submits that there is no breach of the MOS and that the language of the MOS did not preclude their right to file an appeal under WSIA. The Employer submits that the Union is effectively asking this Board to create and enforce a release clause which does not exist in the MOS.

4The relevant portions of the MOS, redacted to protect confidentiality, as referred to by the parties, are the following:

WHEREAS the Grievor has a number of outstanding grievances, including but not limited to grievances relating to her health & safety and a grievance dated December 15, 2012 challenging her dismissal dated December 11, 2012.

AND THEREFORE, the parties agree to a full and final settlement of the above-noted grievance and all issues relating to the Grievor’s employment and termination from the Province of Ontario without prejudice and precedent on the following terms:

1. The Employer agrees to remove the letter of dismissal dated December 11, 2012 and the Grievor agrees that she resigns effective on December 11, 2012.

2. As full and final settlement of all outstanding issues between the parties, the Employer agrees to pay the Grievor within 60 days of the date of this Memorandum of Settlement, to be allocated as follows: (i) “x” as compensation for withdrawing her claim for reinstatement and reemployment, subject to all applicable deductions, and (ii) “y” as damages without deductions.

3. The parties agree that as consideration for the payments in paragraph 2 above, the Grievor shall have no additional claim for payments of salary, benefits, severance pay, termination pay or any rights or entitlements of any kind arising from her employment with the Employer, except for her rights and entitlements under the Workplace Safety and Insurance Act, 1997, arising from her injuries flowing from the events of April 21, 2011. For greater certainty, the payment is inclusive of all amounts, if any, owing pursuant to the applicable provisions of the Employment Standards Act, 2000, including sections 61 and 64/65 thereof….

4. This memorandum of settlement constitutes full and final settlement of any and all claims, complaints, grievances, differences, or actions whatsoever that the Grievor has or may have against the Employer its representatives, present and past employees, office holders, directors and servants, and officials whether under a collective agreement, statute, regulation, policy, contract or at law as a result of or arising out of the Grievor’s employment by the Employer or the termination of that employment, including but not limited to the collective agreement, the WDHP Policy, Employment Standards Act, the Ombudsman Act, Occupational Health and Safety Act and the Human Rights Code. The Grievor forever releases the Employer, its representatives, present employees, and officials from all such claims, complaints, grievances and actions, except for her rights and entitlements under the under the Workplace Safety and Insurance Act, 1997, arising from her injuries flowing from the events of April 21, 201.

5. Without limiting paragraph 8 above and consistent with s. 63 of under the Workplace Safety and Insurance Act, 1997, (WSIA), the Grievor agrees to withdraw her appeal, if any, of the WSIB’s decision letter dated April 23, 2013 and to forgo any claim in relation to the Employer’s reinstatement or reemployment obligations under the WSIA. This paragraph is without prejudice to the parties’ position with respect to any other matter under the WSIA.

6. This written Memorandum of Settlement represents the complete settlement agreement between the parties in relation to the grievance and any related matters. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement.

UNION SUBMISSIONS

5The Union submits that at the time the parties entered into the MOS, the Grievor was in receipt of income arising from a pre-existing claim under WSIA for loss of income as a result of an injury in 2011. The Employer had not filed an appeal against that decision at the time the MOS was reached and the Grievor believed that that income would continue. The only active issue at the time of the signing of the MOS, was an appeal by the Grievor against a decision which favoured the Employer on its procedure on how it handled her complaint, which appeal the Grievor agreed to withdraw.

6The Union submits that the parties intended to settle all issues and that a crucial point for the Grievor in considering the settlement was that there would be no interference with the continuation of the earnings she was receiving under her WSIA claim. The Union asserts that the Grievor’s understanding from comments made by me in my capacity as mediator based on a representation made by the Employer was that she would not lose these earnings. Now two years later, when the Grievor had obtained a job, and when the earnings from the loss of earnings from the injury were being reduced by a top up of her salary, the Employer was challenging these payments. The Union argues that the Employer cannot now challenge that which is a foundation of the agreement. The Union submits that this challenge is a fresh matter and a breach of the collective agreement.

7The Union submits that the MOS was a full and final settlement of the Grievor’s employment and termination. It is clear from the language in the preamble and from the paragraphs following that there is an agreement not to raise any new issue and submits that the Employer is not entitled to raise new matters under WSIA. Pursuant to paragraph 9 of the MOS, the Grievor had withdrawn her appeal from a decision relating to a fine and the procedure used by the Employer, which the WSIB had found in favour of the Employer. Although paragraph 9 requires the withdrawal of the appeal, without prejudice to the parties’ position with respect to other matters under WSIA, it does not give a right to the Employer to raise fresh matters under WSIA.

8The Union submits that by the application of the principles of contra proferentem as the Employer drafted the MOS, if the Employer wished to preserve its right to appeal the decision from the WSIB, there was an obligation on it, as the drafter of the document to preserve that right in the contract. It cannot now assert that right when it failed to include that right in the contract. The Union relies on Medis Health and Pharmaceutical Services Limited, and Teamsters, Chemical and Allied Workers, Local 424 2000 CanLII 50185 (ON LA), 2000 Carswell Ont 5991, [2000] O.L.A.A. No. 753, 62 C.L.A.S. 201, 93 L.A.C. (4th) 118 (Armstrong) in support of its position that the principles of contra proferentem should be applied.

9The Union submits that to file an appeal under WSIA is incompatible with a full and final settlement under this MOS. To illustrate its position to show that the parties cannot revive issues settled in a MOS, the Union presented the case of Ontario (Ministry of Community and Correctional Services and Antoncic 2009 CarswellOnt 10854, 96 C.L.A.S. 348 (O’Neil) which did not allow a grievor to go to court to raise issues that had been settled and were considered as central to their full and final settlement,

10Therefore the Union submits that the Employer is bound by the MOS which is a full settlement of the employment issues and has breached the MOS by filing the appeal under the WSIA thereby extending the issues covered by the MOS

EMPLOYER SUBMISSIONS

11The Employer agrees with the Union that as part of the MOS, the Grievor does not give up any entitlement under WSIA, and paragraph 3 emphasizes that she retains those rights and entitlements.

12The Employer is also in agreement with the Union that a purpose of the WSIA is income protection, however, to determine the appropriate income that is to be paid, requires the WSIB to rule and adjudicate what is the proper entitlement. The determination of the appropriate income is done through an adversarial process, which allows either party the ability to challenge a claim or a decision. The MOS does not intend that the parties must accept whatever the WSIB rules. To prevent the Employer from challenging a decision under WSIA is to impose a release on the Employer in favour of the Employee which is not in the MOS and is contrary to the MOS. Further to accept the Union’s interpretation would lead to an absurd result if neither party were able to dispute a decision of the WSIB.

13The Employer submits that under the terms set out in the MOS the Employer is not precluded from appealing a decision made under the WSIA, but is permitted to do so under the terms of paragraph 9.

14The Employer submits that paragraph 9 was focused on the issues of re-employment and reinstatement. It was important for the Employer to prevent the Grievor, who was receiving a buy out from the Ministry, from seeking re-employment in the Ontario Public Service at any time through her own efforts or through reinstatement as a result of a decision made under WSIA. Although the Grievor forgoes rights to re-employment under the terms of paragraph 9, the parties left any other issue under WSIA to another day. Paragraph 9 expressly provides the right of either party to pursue any other matter, other than the matter of re-employment and reinstatement, under the WSIA. There is nothing expressed or implied in the MOS that takes away either the Employer’s rights or the Employee’s to pursue an appeal of the WSIB. Therefore, so long as there is an issue under WSIA that was not dealing with re-employment, for example, the duration of earnings, the amount of earnings, or any other matter relating to a decision under the WSIA, both the Grievor and the Employer are entitled to challenge such a decision.

15Furthermore, the Employer relies on OPSEU (Crofts) and Ministry of Labour, GSB #2101-4216 (2013)(Petryshen) to illustrate that an interpretation of an agreement that would lead to an absurd result should not be applied. The Union submits that it is unreasonable and would lead to an absurd result to preclude the Employer from challenging the WSIA decision which could potentially continue income to the Grievor to the age of 65 resulting in significant costs to the Employer when there is no language in the MOS to preclude the Employer from challenging the decision made under WSIA. It would be unreasonable to accept the Union’s interpretation, which would mean that the Employer would be left with an open-ended liability it could not challenge.

16The Employer submits that the Employer is entitled to file its appeal under the terms of paragraph 9 of the MOS, and the Union is asking the Board to create a release clause and enforce that release clause where there is none in the MOS.

17The Employer submits that the obligation is on each party to protect their respective interests through clear language in the contract. The Employer submits that paragraph 8 of the MOS creates a release in favour of the Employer. Where an employee wishes to obtain a release from the Employer in its favour it is incumbent upon that party to negotiate and obtain a release in the agreement. The Employee and the Union did not bargain for and obtain a release clause in the Grievor’s favour restricting the Employer’s right to appeal a decision under the WSIA. There is no such release in favour of the employee.

18The Employer does not disagree with the principles of contra proferentum but submits that the MOS is not ambiguous and the principles of contra proferentum are not applicable (OPSEU (Younger) and Ministry of the Environment P-2006-2458 (2007)(O’Neil).

19The Employer further submits that when no reference is made in the MOS to the right of appeal, that matter is outside the ambit of the MOS and cannot constitute a breach of the MOS. In a similar way in the case of OPSEU(James) and Ministry of Community Safety and Correctional Services (2011) GSB #1999-0464 (Lee) the Board found that the Employer did not breach their agreement by filing a Record of Employment late, when no reference to a Record of Employment was found in the agreement.

20The Employer submits that the language of paragraph 10 restricts the agreement to the MOS to the exclusion of any discussions or verbal agreements. The only matters that are enforceable, are those set out in the MOS. Any tacit understanding attributed to the Employer by the Union, does not create an enforceable right.

21The Employer submits that a settlement should not be set aside if a party feels later that they would not have entered into a settlement if further information would have been available at the time of the agreement (OPSEU (Younger) and Ministry of the Environment P-2006-2458 (2007)(O’Neil).

THE ISSUE

22The issue is whether the MOS provides or precludes the Employer from filing an appeal of the decision made under WSIA as to the Grievor’s entitlement to continued payment of loss of earnings arising from a decision made by the WSIB prior to the MOS being drafted. At the time that the MOS was drafted, the Grievor was receiving earnings as a result of an injury occurring on April 11, 2011. I was advised at this hearing that when the Grievor became re-employed her earnings from the loss of earnings claim were reduced by the amounts that she was earning in her new position, and now the Employer is appealing her right to continued earnings.

DECISION

23The parties and the Grievor entered into the MOS at the conclusion of mediation on June 20, 2013. The interpretation of the MOS is properly before me as I have jurisdiction to interpret and enforce the MOS as prescribed in paragraph 14 of the MOS.

24The scope of the MOS is broad. The preamble sets out the context and scope of the MOS, such that not only are the parties agreeing to the settlement of the grievance specified challenging the Grievor’s dismissal, but also to all issues relating to her employment and termination of employment on a without prejudice and precedent basis.

25The body of the agreement in paragraphs 2, 8 and 10 reinforces the breadth of the settlement as being a full and final and complete settlement agreement between the parties in relation to the above noted grievance and any related matters. The parties further clarified and restricted the agreement to the terms of this MOS by agreeing and acknowledging in paragraph 10 that there are no outside verbal or written agreements beyond this written agreement. Therefore this agreement represents the entire agreement relating to the Grievor’s employment and termination from the Ontario Public Service and any restriction on the right to file an appeal under WSIA must lie within the wording of this MOS.

26When the MOS is read in its entirety, it settles all matters relating to the Grievor’s employment and termination save her rights and entitlements under the WSIA relating to her injury of April 11, 2011. Paragraphs 3 and 8 are consistent with each other in that Paragraph 3 creates and preserves the Grievor’s rights and entitlements under the WSIA and paragraph 8 provides an extensive release clause allowing the Grievor to pursue her rights and entitlements under WSIA relating to her April 2011 injury only, and releases the Employer from any claims whatsoever other than those relating to her rights and claims under the WSIA. The Employer does not release any of its rights whatsoever.

27Paragraph 9 however, creates a further limitation on the rights of the Grievor, preventing the Grievor from pursuing any claim for reinstatement or re-employment under the WSIA. However, significantly and key to this decision, the parties also agreed in paragraph 9, that the limitation on the Grievor from pursuing reinstatement and reemployment, did not preclude either party taking any position on any other matter under WSIA when it stated “this paragraph is without prejudice to the parties’ position with respect to any other matter under the WSIA.” Loss of earnings as a result of an injury is not a matter of reinstatement or re-employment and therefore is within the ambit of “any other matter under the WSIA”. “Parties’ ” is plural and therefore permits both parties to take a position. Therefore the Grievor has the right to claim for loss of earnings and the right to pursue that claim should it be contested at any time and the Employer has the right to take a position on the Grievor’s claim for loss of earnings and to file the appeal that is in issue.

28While at the time the Grievor entered into the MOS, she was receiving earnings as a result of her loss of earnings claim under WSIA, there is no guarantee in this MOS that the Grievor would continue to receive the income that she was receiving under WSIA for any period of time and that the Employer released its rights to contest her ability to receive that income. It is not the quantum of income that is protected but the Grievor’s rights and entitlements under WSIA, which are protected, and those rights and entitlements are subject to WSIA and to the procedures and decisions made under that Act.

29The Antoncic (supra) action is different from the case before this Board. In the Antoncic action, the release clause was broad and no rights and actions relating to the employment relationship were retained, unlike the MOS in issue in the dispute before this Board. In the Antoncic action, the Board found that the full and final release in the Minutes of Settlement “of all outstanding matters relating to the Grievor’s employment” and a “full and final resolution of… all other outstanding individual grievances, complaints, claims and matters regarding the Grievor’s past employment” and his release of ”all possible entitlements” including damages at common law, resolved not only his grievance that he was wrongfully dismissed, but all matters relating to his employment, which included the civil claim of defamation against two civil servants which the statement of claim alleged lead to the investigation into the grievor’s conduct and ultimately the termination of his employment. Although defamation is a civil matter outside the grievance procedure it was a matter related to the grievor’s past employment and fell within the plain language in the release of “any and all matter relating to the grievor’s past employment “ and “exhaustive of all possible entitlements”. As such it was incompatible with the Minutes of Settlement which the parties signed. In the case before this Board, as the parties provided for the Grievor’s rights and entitlements under WSIA in the MOS, and permitted both parties to take a position with respect to any other matter, outside of the Grievor’s withdrawal of appeal and foregoing any claim to re-employment, the wording of this MOS was different from the wording found in the Antoncic action, and it contemplated that there may be some permissible actions.

30I do not find that this is a case for the application of the contra proferentem rule of construction which applies where there is an ambiguity in the document, and where all other rules of construction fail. As the Medis (supra) decision sets out in paragraphs 22 through 25, there must be ambiguity in the document and as such the language in the document must be capable of two meanings. It is in that context, as a last resort, that it is presumed that the person putting forward the wording is presumed to have looked after their own interest, and so if there is any doubt in the meaning of the wording as to whether their own interest is protected, it would be found in favour of the other party. In this case, the MOS is clear and unambiguous.

31The MOS is a full and final settlement of all issues arising from the Grievor’s employment and termination. The parties took into account the Grievor’s rights and entitlement under WSIA and protected those rights, other than a right to claim reemployment or reinstatement. But they also by virtue of paragraph 9, preserved either party’s rights to pursue any other issue under WSIA. There is nothing in the MOS that restricts or limits the Employer to act in its own interest and appeal a decision made under WSIA. Accordingly the Employer was entitled to file an appeal under WSIA if it so chose. This was a right that was given in the MOS and was not extending the rights settled in the MOS.

32The final issue that I would like to address is the allegation made by the Union that in my capacity of mediator, I had conveyed an assurance by the Employer that it would not challenge the Grievor’s entitlement to Loss of Earnings under WSIA. Aside from the matter of the confidentiality of the mediation process, consideration of this matter is entirely precluded by the fact that the parties agreed in paragraph 10, that the written MOS represents the complete settlement between the parties in relation to the above-noted grievance and any related matters.

33As a result of the foregoing, the grievance is dismissed.