GSB#2012-1207

UNION#2012-0580-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Hinchcliffe)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community and Social Services)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Alison Nielsen-Jones

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Heather McIvor

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

December 21, 2016

Decision

1This case has a long history. It has come back before me as the union alleges that the employer has violated the Minutes of Settlement that were signed on November 20, 2013.

2The November 20th Minutes of Settlement provide for a phased retirement arrangement beginning on November 25, 2013, and ending on July 31, 2017, the date upon which the grievor will cease employment.

3In February, 2014, the Employer announced to all OPSEU employees that it would be introducing changes to the Post-Retirement Benefits (the “PRB”) effective January 1, 2017. The union took the position that the grievor was entitled to the PRB in place at the beginning of her phased retirement arrangement in November, 2013. The employer rejected this and took the position that the grievor would receive the PRB in place as of January 1, 2017.

4After the announcement of the changes to the PRB, OPSEU filed grievances challenging the Employer’s right to make the change. The parties negotiated and signed broad Minutes of Settlement addressing numerous issues on November 11, 2016.

5The union sought production of various documents pertaining to the employer’s decision to change the PRB, which the employer refused to produce. The parties agreed that there were two issues before me:

i) Are the union’s allegations of a breach of the original Minutes of Settlement as it relates to PRB resolved by the broad generic Minutes of Settlement signed in November, 2016;

ii) If the answer to question 1 is no, is the union entitled to the production it seeks?

6The original Minutes of Settlement (the “original MOS”) read as follows:

Memorandum of Settlement

Between:

BARBARA HINCHCLIFFE

Grievor

• and-

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

Union

• and -

THE CROWN IN RIGHT OF ONTARIO as represented by The Ministry of Community and Social Services

Employer

WHEREAS the Grievor, through her bargaining agent OPSEU, filed the above noted grievance alleging in part that the employer failed to discharge its duty to accommodate her disability; and

WHEREAS the Parties agree to the full and final settlement of the above- referenced grievance, without precedent and without prejudice, on the following terms:

1. The parties agree that subject to the approval of the Deputy Minister, Ministry of Community and Social Services, the Grievor will participate in a Phased Retirement arrangement for the period commencing November 25, 2013, to July 31, 2017. The terms of this arrangement are as follows:

a. The Grievor hereby irrevocably resigns as of July 31, 2017.

b. The Grievor is employed as a full-time employee for the purposes of terms and conditions of employment such as but not limited to pay and coverage under the employer group life, supplementary health, vision care, hearing aids and dental plans.

c. The Grievor will be paid a salary of $1008.11 weekly during the arrangement (i.e. 66% of $1527.44 that is the full-time salary rate of her classification in effect on January 1, 2013).

d. The Grievor shall be treated as a full-time employee in terms of group insurance premiums for supplementary health and dental benefits (i.e. the Employer will cover 100% of such premiums).

e. Pursuant to Section 26 of the Public Service Pension Plan, the Grievor

and the Employer shall each make pension contributions in respect of full- time credit and salary. The Grievor agrees that she will pay 60% of her pension premiums. The Employer agrees to cover the remaining 40% differential, in addition to the Employer's standard pension premiums (i.e. the Employer shall pay 70% of total cost, and the Grievor shall pay 30%).

f. The Grievor shall accrue continuous service during this arrangement at 100% of full-time for the purposes of Article 53 Termination Payments, and such Termination Payments are payable at the end of this arrangement.

g. This arrangement is subject to compliance with the requirements for Preretirement Part-time Employment under the Public Service Pension Plan and Prescribed Compensation under the Income Tax Act. As such, it is understood that pension credit accrued after November 25, 2013 may be subject to reversal and penalty should the Grievor join any other employer’s registered pension plan including but not limited to defined contribution type plans, defined benefit type plans and deferred profit sharing type plans, during the term of the arrangement.

h. This arrangement ceases to operate in the event of the Grievor’s death during the expected term of the arrangement. In such an event, death benefits relating to full-time employees and death benefits under the Public Service Pension Plan shall apply.

2. While the phased retirement arrangement is in place, the Grievor will attend at the workplace and perform Disability Adjudicator duties in accordance with the following schedule:

a. The Grievor will work six and a quarter (6.25) hours per each day of work.

b. The Grievor shall attend the workplace and work three (3) days per week, Tuesday, Wednesday, and Thursday, with the exception of paragraph 2(c).

c. The Grievor shall, on every fourth week, work one additional day. Her schedule on this week will be Monday, Wednesday, Thursday, and Friday. The first “four-day week” shall be the week of December 9, 2013. For clarity, the following “four-day week” shall be January 6, 2014 (and so on).

d. The Parties acknowledge that if the Griever is scheduled to work a “four-day week”, pursuant to paragraph 2(c), and a statutory holiday falls on Monday or Friday of that week, the Grievor shall instead work the “four- day week” the following week (and will work Tuesday, Wednesday and Thursday the statutory holiday week). For clarity, the following “four-day week” will then fall two full weeks later, rather than three full weeks later.

3. The Grievor acknowledges her obligations pursuant to the Public Service of Ontario Act to notify and seek a determination from her Ethics Executive should she be engaged in employment or in an undertaking that could create a conflict of interest with her position as a public servant.

4. Throughout the duration of the phased retirement arrangement, the Grievor agrees to participate in regular meetings with the Employer to set performance targets, pro-rated to time worked, and discuss performance with respect to those targets.

5. It is understood that, effective November 25, 2013, the Grievor will be entitled to Short-Term Sickness Plan benefits afforded to full-time employees.

6. The parties agree that neither the Employer nor the Grievor shall attempt to recover any monies owing pursuant to pay discrepancies up to the date of execution of this MOS.

7. The Grievor agrees that, in order to implement any changes to the phased retirement schedule as detailed in paragraph 2, unless agreed to by the parties, she will be required to participate in an Independent Medical Examination (IME). The Employer will involve the Grievor and the Union in the selection of the IME provider. After receiving the IME report, the Employer will meet with the Grievor and the Union to discuss what changes to the arrangement, if any, are appropriate.

8. The Grievor also agrees that she shall not make future application to, nor accept future employment with, the Ontario Public Service.

9. The Grievor hereby releases and forever discharges the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from all actions, causes of action, grievances, claims and demands of every nature and kind arising out of or as a result of the grievance and the circumstances giving rise to the grievance, including but not limited to all claims under the Ontario Human Rights Code, the Public Service of Ontario Act, 2006, the Employment Standards Act, the OPSEU Collective Agreement, and the common law.

10. Nothing in this settlement constitutes an admission or concession of liability or wrongdoing by any party.

11. All parties agree that the terms of this settlement shall remain confidential and shall not be communicated by any party to any other person, except by the Grievor to immediate family (with the condition of confidentiality), financial and legal advisors, as required by law, or as required to allow the Employer to implement the terms of the settlement.

12. The parties agree that this settlement constitutes the entire agreement between the parties and supersedes any and all prior oral or written agreements, arrangements or understandings between them.

13. The Grievor and Union agree that the above-noted grievance is hereby fully and finally resolved and withdrawn.

14. The parties agree that Vice Chair Janice Johnston shall remain seized with the implementation or interpretation of this settlement.

Dated at Toronto, this November 20, 2013

7The parties revisited the original MOS in 2014 and in August and September, 2014, signed supplemental Minutes of Settlement.

8On November 11, 2016, the following Minutes of Settlement with regard to the changes to the PRB were signed at the Corporate level (the “corporate MOS”):

MEMORANDUM OF SETTLEMENT

Between:

The Crown in Right of Ontario

as represented by the Treasury Board Secretariat

(“the Employer”)

• and-

Ontario Public Service Employees Union

(“the Union”)

WHEREAS in February 2014, the Employer announced to all Ontario

Public Service employees, including employees in the bargaining units

represented by OPSEU, that it would be introducing changes to Post-

Retirement Benefits effective January 1, 2017 (“PRB Changes”);

AND WHEREAS the Union and employees in the bargaining units

represented by OPSEU have filed numerous individual, group and union

policy grievances concerning the PRB Changes;

AND WHEREAS the parties have a mutual desire to resolve all

outstanding matters regarding the PRB Changes as they relate to OPS

employees in the bargaining units represented by OPSEU;

NOW THEREFORE the parties agree to a full and final settlement of any

and all outstanding matters related to the PRB Changes on a without

prejudice and without precedent basis on the following terms and

conditions:

PRB for eligible OPSEU Pension Plan Members who have commenced

receipt of a pension before January 1, 2017

1. All members of the OPSEU Pension Plan who have at least 10 years of

pension credit before January 1, 2017 and have commenced receipt of a

pension before January 1, 2017 shall be eligible to receive Post-

Retirement Benefits on the following “status quo” terms (hereinafter

referred to as the “PRB Plan A”):

i. The level of Post-Retirement Benefits: as nearly as may be, on the same

terms and conditions as are from time to time applicable to similar benefits

for active employees pursuant to the Collective Agreement between the

parties; and

ii. No Shared Cost: the Employer pays 100 percent of the Post-Retirement

Benefit premium costs of the PRB Plan A.

PRB for OPSEU Pension Plan Members who have not commenced

receipt of a pension before January 1, 2017 and who were hired before

January 1, 2017

2. Any member of the OPSEU Pension Plan who has not commenced

receipt of a pension before January 1, 2017, and who was hired prior to

January 1, 2017, will be permitted at retirement to elect to enrol in one of

the following:

i. PRB Plan A, provided that the eligible member pays 50 percent of the

premium costs to participate in the benefits plan, excluding the premium

costs of the Basic Life Insurance coverage that is currently provided under

Articles 37.4 and 65.4 of the current Collective Agreement, which shall be

paid by the Employer; or

ii. A Post-Retirement Benefits plan, which is 100 percent Employer-paid

(attached hereto as Appendix A and hereinafter referred to as “PRB Plan

B”). PRB Plan B is currently priced at 50 percent of the PRB Plan A as it

stood in 2016, as determined in the sole discretion of the Employer. PRB

Plan B will remain 100 percent Employer paid for eligible employees hired

prior to January 1. 2017 provided they meet one of the following eligibility

criteria:

i. The person has at least ten (10) years of pension credit prior to January

1, 2017; or

ii. The person has at least twenty (20) years of pension credit and retires

to an immediate unreduced pension.

Any member who does not make an enrolment election at retirement

under this paragraph will automatically be enrolled in PRB Plan B.

A member who has elected to participate in PRB Plan A may make an

application in December of any year to cease to participate in PRB Plan A

and to enrol in PRB Plan B effective January 1 of the following year.

A person who has elected, or was deemed to have elected, to participate

in PRB Plan B may make an application in December of any year to cease

to participate in PRB Plan B and to enrol in PRB Plan A effective January

1 of the following year. However, should a person make a further election

at a later date to re-enrol in PRB Plan B, that person is no longer eligible

to participate in PRB Plan A.

PRB for OPSEU Pension Plan Members hired on or after January 1, 2017

who have at least 20 years of pension credit and who retire to an

immediate unreduced pension

3. Any employee hired on or after January 1, 2017 who has 20 years of

pension credit and retires to an immediate unreduced pension is only

eligible to enrol in the PRB Plan B, as described above in Paragraph 2(ii)

upon retirement. Such members will be required to pay 100 percent of the

premium costs to participate in this benefits plan.

Members who do not enrol at retirement may make an application within

31 days of termination of similar coverage under another plan. Thereafter,

any decision to opt out of PRB Plan B coverage is irrevocable.

4. The Union agrees to withdraw Union grievance #2015-0999-0042

(GSB# 2015-2664) and Union grievance #2016-0999-0043. The Union

further agrees that any grievances (individual, group or union) in respect

of Post-Retirement Benefits not identified in this settlement are hereby

withdrawn. The Union will notify the GSB of its withdrawal of all of the

grievances forthwith upon the execution of this Agreement.

5. OPSEU represented employees who elected to retire after February 18,

2014 will be eligible to apply to restricted competitions for OPSEU

represented positions having a posting period that closes prior to

December 31, 2017. In these competitions, such individuals shall have

their seniority at the date of their retirement considered for the purposes of

Article 6 of the OPSEU collective agreement as if they were an active

employee.

6. The undersigned unanimously agree to recommend these terms of

settlement to their respective principals. This settlement shall be

considered null and void unless the parties’ respective principals fully

endorse all terms and conditions set out herein by 6 p.m. Wednesday,

November 16, 2016.

7. The parties agree that the terms and conditions of this settlement shall

remain strictly confidential until the settlement has been fully endorsed by

the respective principals of both parties. Both parties agree that they will

not disclose or discuss the terms of this settlement in a public manner

before 6 p.m. Wednesday, November 16, 2016, unless otherwise agreed.

8. The Union hereby releases and forever discharges the Crown in Right

of Ontario, the Employer, its employees, Ministers, Deputy Ministers, office

holders, directors, servants, and agents of and from all actions, causes of

action, grievances, claims and demands as they relate to the PRB

Changes announced on February 18, 2014 referenced herein and from

the grievances referenced in paragraph 4 above.

9. The parties agree that this agreement is without prejudice to either

parties’ position with respect to whether or not post-retirement benefits

form part of the OPSEU collective agreement.

10. This Memorandum of Settlement constitutes the entire agreement

between the parties and supersedes any and all other oral or written

agreements, arrangements, or understandings in connection with or

incidental to these PRB Changes. Any disputes arising from the

implementation of this settlement will be referred to the Grievance

Settlement Board.

Dated this 11th day of November, 2016

ARGUMENT

9Counsel for the employer started her argument by referencing paragraph 1 and 2 of the original MOS. Paragraph 1 provides for a phased retirement of approximately 3.5 years. The grievor would be working part-time during this period but would receive enhanced entitlements as set out in paragraph 1 (c), (d) and (e). Paragraph 2 sets out the agreed-to work arrangements. The remaining paragraphs set out other agreed-to items and some are generic. Counsel pointed to paragraph 12, which stipulates that the MOS constitutes the entire agreement between the parties.

10Counsel suggested that the language in the original MOS was clear and unambiguous. Both parties knew when they negotiated the MOS that they were intended to cover a three-year period. Things can change in that time and the union could have negotiated a clause to protect the rights of the grievor in the event of change and did not. Counsel pointed out that it is not my role to add to the MOS and I should not do so.

11In February, 2014, the changes to the PRB were announced and this resulted in a number of complaints and grievances. These were all resolved by the corporate MOS signed on November 11, 2016. Counsel suggested that the corporate MOS on their face were clear and that I had no jurisdiction to add to or modify them. In her view, the rights of the grievor to PRB are covered by the corporate MOS.

12Employer counsel suggested that in reviewing the corporate MOS I should apply the same principles as I did when reviewing the original MOS. Specifically, I should give words their plain meaning and read the agreement as a whole. It is clear that the parties intended to resolve “all outstanding matters regarding the PRB changes” and that there is no carve-out for the grievor. Counsel referred to the third and fourth preamble clause and argued that “all” matters were resolved, not just certain grievances. The fourth preamble refers to “any and all,” not specific cases.

13Paragraph 2 of the corporate MOS is applicable to the grievor and sets out her rights, as on the date the corporate MOS were signed she had not commenced receipt of a pension. Paragraph 4 makes it clear that all grievances in respect of PRB are withdrawn, which covers the original MOS. Paragraph 8 is a full release clause and provides:

The Union hereby releases and forever discharges the Crown in Right of

Ontario, the Employer, its employees, Ministers, Deputy Ministers, office

holders, directors, servants, and agents of and from all actions, causes of

action, grievances, claims and demands as they relate to the PRB

Changes announced on February 18, 2014.

Paragraph 10 is an entire agreement clause and provides:

This Memorandum of Settlement constitutes the entire agreement

between the parties and supersedes any and all other oral or written

agreements, arrangements, or understandings in connection with or

incidental to these PRB Changes.

14Employer counsel pointed out that this language is very clear and that the corporate MOS were intended to catch and resolve any and all disputes or matters with regard to PRB issues.

15In support of her position, counsel for the employer referred to the following cases: Fisher & Ludlow Inc. v. CAW-Canada, Local 504, 2012 CarswellOnt 7325 (the “Fisher case”); Bingham v. Ontario (Ministry of Government Services), 2011 CarswellOnt 15942 (the “Bingham case”); Re Ontario (Ministry of the Environment) and Younger 2007 CarswellOnt 10611 (the “Younger Case”); Selkirk College v. B.C.G.E.U. 1996 CarswellBC 3030 (the “Selkirk case”); Canada Post Corp. v. C.U.P.W. 1993 CarswellNat 1743; Toronto (City) v. Toronto Civic Employees Union, Local 416 2002 CarswellOnt 4748 and U.F.C.W., Local 175 & 633 v. Cuddy Food Products 2003 CanLII 89628 (ON LA), 2003 CarswellOnt 5805.

16Counsel for the employer relied on the cases set out above in support of a few basic principles. The Fisher case reiterated the principle that when a transaction has been reduced to writing, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document. This is often referred to as the “parol evidence rule”. The onus is on the union to establish that an ambiguity exists that would justify hearing testimony as to the meaning of the words. In our case, the original MOS is clear and unambiguous with a list of entitlements and does not contain any reference to the PRB.

17Employer counsel suggested that the Younger case makes it clear that an arbitrator cannot undo Minutes of Settlement or add to them because an issue was not addressed or thought of at the time the Minutes were signed. The Selkirk case stands for the principle that an arbitrator has no jurisdiction to change the terms of a settlement on the basis that information that became available after the Minutes were signed would have altered the positions of the parties.

18Counsel for the union phrased the first issue before me as “did the corporate MOS resolve the breach of the original MOS”. The employer says the corporate MOS resolved all outstanding matters and issues pertaining to PRB including the grievor’s. Counsel disagreed and argued that the allegation of a breach of Ms. Hinchcliffe’s MOS does not fall under the matters resolved by the corporate MOS.

19Union counsel suggested that Ms. Hinchcliffe was deemed to be retired as of November 25, 2013, as that is when her phased retirement began. She is therefore entitled to the PRB in place at that time. Counsel suggested that an implied term in the original MOS was that Ms. Hinchcliffe was to receive benefits including the PRB in place as of November, 2013. The determination by the employer that she is not entitled to the PRB in place in November, 2013, is a breach of the original MOS.

20Counsel for the union argued that a plain reading of the original MOS makes it clear that the grievor was participating in a phased retirement and that by signing the MOS the grievor gave up her right to continued employment after July 31, 2017. She did so based on an understanding of certain PRB and there was no reason to suspect that there would be a change.

21Counsel distinguished the cases relied upon by the employer on the basis that they involved situations where information was or ought to have been known at the time of the settlement, or involved an assumption that was unwarranted. In the case before me, there was no reason for the parties to assume that PRB might change.

22Union counsel turned next to the corporate MOS and reiterated that in the view of the union the issues raised with regard to Ms. Hinchcliffe did not fall under the corporate MOS and were not resolved by it. She pointed to the second paragraph in the preamble, which states, “AND WHEREAS the Union and employees in the bargaining units represented by OPSEU have filed numerous individual, group and union policy grievances concerning the PRB Changes,” and she suggested that it was these matters that were settled. Ms. Hinchcliffe does not have a grievance regarding the PRB changes. The issue before me does not fall under this settlement. In addition, she pointed to paragraph 4 of the corporate MOS, which states, “The Union agrees to withdraw Union grievance #2015-0999-0042 (GSB# 2015-2664) and Union grievance #2016-0999-0043. The Union further agrees that any grievances (individual, group or union) in respect of Post-Retirement Benefits not identified in this settlement are hereby withdrawn” and again argued that we are not dealing with a grievance in respect of PRB.

23Counsel for the union suggested that the issue before me - is the employer breaching the original MOS by taking the position that the grievor is not entitled to the PRB in place in November, 2013 - can be determined only by reviewing the original MOS. It is not resolved by the corporate MOS. In support of her argument, counsel referred to Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of Transportation) (2003) (Brown) GSB #2445/02 2003.

24Union counsel turned at this point to what I will refer to as the production issue. She agreed that the terms of the original MOS were clear on their face. She pointed to paragraph 1, which provides that “the parties agree that subject to the approval of the Deputy Minister (the “DM”), Ministry of Community and Social Services, the Grievor will participate in a phased retirement arrangement for the period commencing November 25, 2013, to July 31, 2017”, in support of the proposition that broadly speaking, because the MOS were subject to the approval of the DM, that the employer knew at the time that the MOS were entered into that it intended to change PRB for employees. The DM either knew or ought to have known that the PRB changes were coming and the employer therefore acted in bad faith by agreeing to MOS that could not be fulfilled as envisioned. As the PRB changes were announced approximately three months later, the employer acted in bad faith. To establish that the alleged bad faith existed, counsel asserted that the union was entitled to the production requested.

25Prior to the hearing, union counsel advised counsel for the employer that the union was raising the allegation of bad faith and requested any and all communication and documents tending to show the date that the government intended to change PRB for employees. She took the position that it was a proper request as she was seeking documents that were arguably relevant to this matter. In support of her argument, she referred to Danny Palmer v. Canadian Security Intelligence Service (2010) Bedard PSLRB 11 and Ontario Public Service Employees Union (Madan) v. The Crown in Right of Ontario (Ministry of Environment) (2012) (Watters) (the “Madan” case) GSB #2010-2112, 2010-2113; 2010-2114, 2010-2114, 2010-2115, 2010-2116, 2010-2117.

26In the Madan case, V.C Watters refers to West Park Hospital v. Ontario Nurses’ Association (1993) 1993 CanLII 16806 (ON LA), 37 L.A.C. 4th 160 (Knopf) and sets out the factors considered when a request for disclosure is contested:

1. the information requested must be arguably relevant;

2. the requested information must be particularized so there is no dispute

as to what is desired;

3. the decision-maker should be satisfied that the information is not being

requested as a “fishing expedition”;

4. there must be a clear nexus between the information being requested

and the positions in dispute at the hearing; and

5. the decision-maker should be satisfied that disclosure will not

cause undue prejudice.

27Counsel for the union reviewed the factors. She suggested that the information was arguably relevant as there is no question that the date the PRB decision was made is relevant to whether or not the employer entered into the MOS with Ms. Hinchcliffe in bad faith; that the request was not a fishing expedition as the allegation of bad faith is based on the fact that the employer knew change was coming when it entered into the MOS and there is a clear nexus between the information requested and the bad faith allegation; and that there is no suggestion that the disclosure will cause undue prejudice.

28In conclusion, union counsel requested that I order the production requested so that the issue of whether or not the employer acted in bad faith in signing off on the original MOS as written can be determined. The corporate MOS do not bar the union from requesting the litigation of the question as to whether or not the employer entered into the original MOS in bad faith.

29In reply, counsel for the employer disagreed with the assertion of union counsel that the issue before me was a breach of the original MOS and that the issue of PRB was tangential to this. The issue in this case is the change to PRB and whether or not the grievor is swept up in the corporate MOS. Counsel also disagreed with the assertion that the Grievor was deemed retired as of November, 2013, and suggested that her retirement will commence when she stops working on July 31, 2017.

30Employer counsel also disagreed with the assertion that when the parties were negotiating the original MOS, there was no reason to assume that PRB would change and pointed out that there was equally no reason to assume that they would not change. It was always a possibility that they could change and no assurances were given that they would remain consistent. The language in the corporate MOS is very concrete and specific and when taken as a whole the intentions of the parties is very clear.

31Employer counsel pointed out that the case law suggests that clear and cogent evidence is required to ground allegations of bad faith. In this case, to say that the DM may have been aware that some sort of change to the PRB may be coming, when no one involved in the negotiation of the original MOS was aware, is not enough to ground an allegation that the employer acted in bad faith in deliberately withholding this information. It is highly speculative to even suggest that the DM knew anything about a decision being made on a central basis that affected PRB. All the DM did was approve the phased retirement aspect of the original MOS as the specifics of the MOS are confidential.

DECISION

32A fundamental principle in collective agreement or other contract interpretation, in this case two different MOS, is that words are to be given their plain or ordinary meaning. It is my role to give effect to the intentions of the parties based on the words they themselves have chosen. In doing so, I will assume that the parties chose to use the words or phrases that they did for a reason. It is my role to give the language used by the parties a meaning that it can reasonably bear and that is internally consistent. I must determine what makes the most sense in all of the circumstances and what is a reasonable and logical interpretation. It is my job to interpret the MOS as written by the parties. I cannot rewrite them.

33The parties agree that the original MOS are silent regarding PRB. That issue is not mentioned in the MOS. Given that silence, clearly the issue before me, however it is articulated, is what PRB is the grievor entitled to?

34The corporate MOS provide for two groupings of employees. Those who have commenced receipt of a pension prior to the signing of the MOS and those who will commence receipt of a pension after the MOS are signed. Paragraph 2 of the corporate MOS stipulates that the terms that follow apply to “any member of the OPSEU Pension Plan who has not commenced receipt of a pension before January 1, 2017”. Although the grievor’s employment was subject to a phased retirement arrangement, she does not actually stop working, retire and commence receiving her pension until July 31, 2017.

35Therefore, if I conclude that the corporate MOS catch the grievor, she would fall into the category of employees whose PRB are affected by the changes announced in February, 2014. I cannot accept the proposition put forward by the union that the grievor was deemed to be retired in November, 2013, as it seems to me that retiring has an element of no longer working in the same job and the receipt of a pension, neither of which was true for the grievor. Obviously there can be exceptions to this statement, but in this case, I do not conclude that the grievor either retired or can be deemed to be retired in November, 2013.

36The next question is whether or not the grievor’s situation is caught by the corporate MOS. Given that the original MOS are silent on the issue of PRB, is the question of what PRB the grievor is entitled to resolved by the corporate MOS? The parties in the corporate MOS chose very broad, sweeping and all-encompassing language. In applying the principles set out above in paragraph 32 of this decision, I must assume that the parties meant it when they said “the parties have a mutual desire to resolve all outstanding matters regarding the PRB changes as they relate to OPS employees in the bargaining units represented by OPSEU” and “the parties agree to a full and final settlement of any and all outstanding matters related to the PRB Changes”. While there is reference to the settlement of specific grievances, the parties also used broad, additional specific language to sweep in any and all outstanding matters relating to PRB.

37As was pointed out by employer counsel, paragraph 8 of the corporate MOS is a full release clause and provides:

The Union hereby releases and forever discharges the Crown in Right of

Ontario, the Employer, its employees, Ministers, Deputy Ministers, office

holders, directors, servants, and agents of and from all actions, causes of

action, grievances, claims and demands as they relate to the PRB

Changes announced on February 18, 2014.

In addition, paragraph 10 is an entire agreement clause and provides:

This Memorandum of Settlement constitutes the entire agreement

between the parties and supersedes any and all other oral or written

agreements, arrangements, or understandings in connection with or

incidental to these PRB Changes.

38In giving these words their plain and ordinary meaning, I must assume that the parties meant it when they used the words highlighted above. The language used is clear and there is no carve-out or exception stipulated for the grievor or any other employee in the grievor’s situation. Although I am not dealing with a grievance relating to the PRB changes, there can be no doubt that what is being asserted in this case is a claim or demand relating to the PRB changes. It appears to me that the corporate MOS were intended to catch and resolve all claims and demands as they relate to PRB issues.

39Accordingly, I conclude that the rights of the grievor with regard to PRB are covered by the corporate MOS. She is to be treated the same as any other employee whose rights were initially affected when the corporate changes were announced and for whom the parties subsequently concluded an agreement on how the changes would be implemented. This decision could end at this point, but for the sake of completeness, I would like to briefly address the original MOS and the union’s allegations of bad faith.

40Turning to the original MOS, there is simply nothing in those Minutes addressing the situation which has occurred, namely a change to the benefits the grievor shall receive upon her retirement on July 31, 2017. The MOS are silent. While I may have some sympathy for the situation the grievor is in, I cannot add or imply a provision that is not there. In the Younger case at paragraph 17, VC O’Neil pointed out:

Moreover, the case law is clear that a settlement will not be set aside

because a party later feels he or she might not have entered into it on the

same terms if further information had been available to them, (see Re

Selkirk College v. British Columbia Government and Service Employees’Union (1996), 1996 CanLII 20430 (BC LA), 59 L.A.C. (4th) 14 (Chertkow, B.C.) at pg. 11) or because each and every possible compensation issue which might have been addressed by the perfectly informed party was not included in the final package of settlement terms (see Re Canada Post Corp and CUPW,

(1993) 36 L.A.C. (4th) 216 (Jolliffe) at pg. 14). As well, the fact that the

parties did not specifically cover every possible entitlement does not

diminish the effect of comprehensive release language. (See Toronto

(City) v. Toronto Civic Employees’ Union, Local 416, (2002) 106 LAC. (4th) 59 (Luborsky) at pg. 6.

These observations are equally applicable to the case before me and I completely agree with them.

41I also agree with the following comments made by VC O’Neil in De Boer and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (O’Neil) PSGB #P-2005-1033 at pg. 10:

It is very important as a matter of policy that agreements voluntarily signed be upheld, or workplace parties would not be able to have confidence in

the finality of agreements made and their ability to govern their affairs

accordingly. The question of finality of agreements is fundamental to the

entire legal system, and is especially important in the ongoing operation of any workplace. Otherwise, parties would be constantly wondering which

agreement they could count on, and which one would be subject to being

reconsidered indefinitely in the future. It would be overly prejudicial to the

employer and all concerned to create a precedent which would amount to

a questioning of the finality of the agreement between the parties that lead to the grievor’s voluntary retirement, and the severance of the employment relationship that followed.

42An exception to this concept of finality could occur if one of the parties acted in bad faith. Therefore, while I understand why counsel for the union attempted to suggest that there was bad faith in this case, there is absolutely no foundation for such a bald allegation. I agree with employer counsel that to say that the DM may have been aware that some sort of change to the PRB may be coming, when no one involved in the negotiation of the original MOS was aware, is not enough to ground an allegation that the employer acted in bad faith or deliberately withheld this information. It is highly speculative to suggest that the DM knew something about a decision being made on a central basis that affected PRB and then for some reason decided to penalize the grievor by remaining silent. Accordingly the production request is in my view a “fishing expedition” and not an appropriate request for production.

43Accordingly, to summarize, in my view there has been no violation of the original MOS and the grievor’s rights with regard to PRB are as stipulated in the corporate MOS.