GSB#2016-2694

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Mbuyi)

Association

• and –

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 18, 2018

Decision

1The complainant, Mr. Claude Mbuyi was employed as a mediator in the Mediation Services Unit of the Dispute Resolutions Branch Automobile Insurance Division of the Financial Services Commission of Ontario (“FISCO”). FISCO Mediator was a multi-incumbent position classified at level 6 of the Legal Services Functional Group. The employer declared the FISCO Mediator position surplus, and affected employees received surplus notice and notice of layoff dated April 5 and April 14, 2016 respectively, with a layoff date of October 14, 2016.

2In November and December 2016 six FISCO Mediators filed disputes under article 27 of the collective agreement claiming that the employer violated the collective agreement by deciding that they were not entitled to bump into a position of Dispute Resolution Office (“DRO”) at the Landlord and Tenant Board, Ministry of the Attorney General. Some also claimed a right to bump into other positons and/or a right to a Targeted Direct Assignment.

3The six complainants who filed disputes under article 27, and their continuous service dates in order of seniority are as follows:

(a) Chris Jackson (2002-01-02)

(b) Rebecca Hines (2002-05-27)

(c) Salvator Maietta (2005-01-04)

(d) Anna Teskey (2008-01-02)

(e) Claude Mbuyi (2008-09-09)

(f) Nick Vescio (2010-02-01)

4This decision relates to a motion by the employer that the dispute filed by Mr. Mbuyi be dismissed in relation to his claim of entitlement to bump into a DRO position. The employer had determined that none of the six FISCO Mediators had entry level qualifications for the DRO position. The instant motion is based on the employer’s position that even if FISCO Mediators had entry level qualifications for the DRO position, Mr. Mbuyi would not have been entitled to bump into it because there were a number of complainants who had greater seniority. At best, he had a contingent right depending on the outcome of the disputes filed by the more senior complainants.

5The following from the “Agreed Statement of Facts” sets out the factual background material to the determination of the instant motion. (Attachments omitted):

1. In accordance with Article 27.9 of the Collective Agreement, the Employer completed a review of possible bumping opportunities for each of the FSCO Mediators Complainants. In reviewing the possible bumping opportunities, the Employer considered each of the FSCO Mediator Complainants for a bump into the multi-incumbent “Dispute Resolution Officer” (“DRO”) position with the Landlord and Tenant Board (“LTB”), Ministry of the Attorney General (“MAG”). See the “Bump Match” reports attached at Tab 4.

2. In conducting its review, the Employer considered each of the FSCO Mediator Complainants for each DRO position that was occupied by an incumbent with less seniority than the FSCO Mediator Complainant. In each case, the Employer considered and rejected possible bumping opportunities for the following DRO positions (Note: “X” means Complainant was considered and rejected as “Not Qualified” (“NQ”) for a possible bumping opportunity into this position):

(in order of seniority)

DRO Position #79536

DRO Position #79553

DRO Position #79516

Jackson

X

X

X

Hines

X

X

X

Maietta

X

X

X

Teskey

X

X

Mbuyi

X

X

Vescio

X

X

3. The following represents how the above-noted DRO positions were assigned in 2016:

a. Position 79536 was the home position of Susan Parsons (CSD 2014/07/14). Ms. Parsons was the least senior DRO at the LTB. Ms. Parsons’ home position is in the LTB’s Scarborough Office.

b. Position 79553 was the home position of Bryony Ricker (CSD 2010/11/01). Ms. Ricker was the LTB’s second least senior DRO. Ms. Ricker’s home position is in the LTB’s Mississauga Office.

c. Position 79516 was the home position of Susan Volman (2006/09/25). Ms. Susanna Volman was the third least senior DRO at the LTB. Ms. Volman’s position is in the LTB’s 47 Sheppard Ave. East office [“Toronto North”].

4. On September 12, 2016, the Employer sent Mr. Jackson, Ms. Hines, Mr. Maietta, Ms. Teskey, and Mr. Vescio a letter indicating that no bump option had been identified for them.

5. On September 12, 2016, the Employer sent Mr. Mbuyi a letter indicating that that a level 5 bump option had been identified for him. Mr. Mbuyi began his Level 5 bump assignment on October 12, 2016, before his layoff date.

Disputes

6. As noted above, all of the FSCO Mediator Complainants disputed the Employer’s “no bump option” (or in the case of Mr. Mbuyi, the Level 5 bump) in November or December 2016.

Exchange of Positions Leading Up to the Litigation of FSCO Mediator Complainant Claims

7. Leading up to the litigation of the Disputes, and following a number of rounds of disclosure and provision of particulars by the Employer [See, for example, the initial April 7, 2017 Disclosure Request in Jackson’s case at Tab 13], each of the FSCO Mediator Complainants asserted that they should have bumped employees who occupied the multi-incumbent LTB DRO position, among other positions.

8. For clarity, during the first five months of their notice period (mid-April to mid-September 2016):

a. Mr. Jackson was not accepted as a match for any of the potential TDA opportunities that he had identified and he did not dispute any 2016 TDA determinations (including the LTB’s determination that he was not qualified (“NQ”) for any vacant LTB DRO position);

b. Ms. Hines was not accepted as a match for any of the potential TDA opportunities that she had identified, if any, and she did not dispute any such NQ TDA determinations, if any (note that Ms. Hines did not identify any possible TDAs for any vacant LTB DRO positions); and

c. Mr. Maietta was not accepted as a match for any of the potential TDA opportunities that he had identified and he did not dispute any NQ TDA determinations (including the LTB’s determination that he was not qualified for any vacant LTB DRO position).

9. As of September 12, 2016, Ms. Parsons was the least senior DRO at the LTB. Mr. Jackson was the most senior of the FSCO Mediator Complainants (seniority date: January 2, 2002).

10. For ease of reference, if the 3 most senior FSCO Complainants had all been deemed qualified for the DRO position and had exercised their bump option in order of seniority as of September 12, 2016, the following bumps would have taken place.

FSCO Mediator “Bumpor”

DRO “Bumpee”

1. Mr. Jackson

Ms. Parsons

2. Ms. Hines

Ms. Ricker

3. Mr. Maietta

Ms. Volman

4. Ms. Teskey

N/A

5. Mr. Mbuyi

N/A

6. Mr. Vescio

N/A

11. In other words, had the Employer matched the 3 most senior FSCO mediators to DRO positions, then Ms. Teskey, Mr. Mbuyi and Mr. Vescio would not have bumped into a DRO positon even though they were all senior to Ms. Parsons and Ms. Ricker (because Ms. Parsons’ and Ms. Ricker’s positions would have been bumped by the more senior qualified FSCO mediators, as set out above).

12. On September 15, 2017, AMAPCEO wrote a letter to the Employer setting out its understanding of what transpired with respect to the various DRO positions and who are the incumbents in each position.

13. On September 21, 2017, AMAPCEO wrote a letter to the Employer with a proposal for how to litigate the Complainant Mediator claims.

14. AMAPCEO provided particulars in relation to Mr. Jackson’s claim on September 29, 2017.

15. On October 6, 2017, the Employer proposed its own version of a litigation plan.

16. On October 13, 2017, AMAPCEO responded to the Employer’s October 6, 2017 letter.

17. AMAPCEO drafted a letter dated October 18, 2017 to provide Ms. Parsons with notice that she may have participatory rights at the GSB in respect of Mr. Jackson’s bump claim. This letter was sent to the Employer for review. However, this letter was never finalized or sent, and Mr. Jackson’s case was settled.

Resolved Disputes

18. Between November 2017 and February 2018, the parties resolved the Disputes of the following FSCO Mediator Complainants without recourse to litigation:

a. Chris Jackson

b. Rebecca Hines

c. Salvatore Maietta

19. The parties had previously settled Ms. Teskey’s bump claim.

Unresolved Disputes

20. Mr. Mbuyi’s bump claim remains unresolved. Mr. Mbuyi asserts that he can bump Ms. Parsons or Ms. Ricker (Ms. Volman has more seniority than Mr. Mbuyi).

21. Mr. Vescio’s bump claim remains unresolved. Mr. Vescio asserts that he can bump Ms. Parsons or Ms. Ricker (Ms. Volman has more seniority than Mr. Vescio).

22. The Employer’s primary position is that:

a) the two most junior FSCO Mediator Complainants (Mr. Mbuyi and Mr. Vescio) do not have eligible claims under Article 27.9 of the Collective Agreement to bump DRO Parsons and DRO Ricker; and

b) the pursuit of those claims by those junior employees is further barred by the Memoranda of Settlement reached by the most senior FSCO Mediator Complainants, AMAPCEO and the Employer: i.e., fully and finally resolving the bump claims of Mr. Jackson (the displacement of DRO Parsons), Ms. Hines (the displacement of DRO Ricker) and Mr. Maietta (the displacement of DRO Volman).

Employer submissions

6The employer’s position set out in para. 22(b) is the basis of its motion. The employer counsel pointed out that the employer had determined that none of the six complainants had entry level qualifications for the DRO position. If the complainants had successfully litigated, the complainants with greater seniority would have had the right to bump into DRO positions. Mr. Mbuyi and Mr. Vescio, the least senior among the six complainants, would have had no opportunity to bump into a DRO position. As it turned out, none of the disputes were litigated. All of the disputes except those filed by the two least senior of the complainants, Mr. Mbuyi and Mr. Vescio, were settled. Counsel submitted that Mr. Mbuyi was now seeking to pursue a right to bump into the DRO positions held by the incumbents with least seniority, Ms. Parsons and Ms. Ricker, on the basis that he has more seniority than they do, and with the more senior complainants no longer in contention having resolved their disputes, he is now the most senior of the remaining complainants.

7Relying on documented exchanges between the parties, employer counsel points out that until the minutes of settlement were executed for the senior complainants, the Association had accepted that Mr. Mbuyi and Mr. Vescio, the least senior of the complainants, had no claim to bump into a DRO position. However, it now claims that the settlement of those disputes created for them a right which they did not have previously.

8Employer counsel submits that the employer settled the disputes filed by the complainants with seniority in order to avoid the bumping of Parson and Ricker. Had the disputes been successfully litigated by the Association, it would have set in motion a disruptive chain of multiple bumps. The employer settled the disputes filed by the FISCO Mediators who had a potential claim to bump in order to avoid that. It settled in order to obtain certainty and finality. There was no contemplation that the settlements would create rights for Mr. Mbuyi or Mr. Vescio, which they otherwise did not have, and as a result the employer would be required to litigate the very issue it had settled.

9Counsel submitted that the Association was able to convince the employer that the senior complainant’s disputes potentially had merit. The employer settled because it did not want to take the risk of litigating in the circumstances. He pointed out, as an example, that in order to settle the dispute filed by the most senior complainant, Mr. Jackson, the employer provided him with substantial benefits in the Minutes of Settlement. Having done so to avoid the risks inherent in litigation, the employer would be forced into litigation if Mr. Mbuyi is found to have obtained a right as a result of those very settlements.

10Employer counsel submitted that the right to bump asserted on behalf of Mr. Mbuyi is in any event precluded by a broad “release clause” in the Jackson Minutes of Settlement (“MOS”). He pointed out that the Association is signatory to it. Thus, it is a “releasor”. Counsel pointed out that the release clause included the following language:

In consideration of the above, the Complainant and the Association hereby release and forever discharge the Employer, its employees, agents, Ministers, Deputy Ministers, office holders, directors, servants and assigns of and from all actions, causes of action, claims and demands of every nature and kind arising out of or as a result of these Disputes …

11Counsel argued that the Association should not be allowed to circumvent a settlement with such broad release language. It would be contrary to the arbitral principle of the sanctity of settlements and the need to hold parties to terms of settlement. My attention was drawn to a number of authorities standing for that proposition.

Association Submissions

12Counsel for the Association pointed out that the MOS relied upon by the employer settled two individual disputes filed by Mr. Jackson. Mr. Jackson’s disputes are set out in the MOS itself. There is no language to the effect that the Association was forfeiting or settling any other outstanding disputes. For the Board to conclude that the Association agreed to give up any dispute other than those identified in the MOS, there must be clear and explicit language in the MOS.

13Counsel pointed out that the crux of all of the disputes filed on behalf of FISCO Mediators was whether the employer’s decision that none of them met the entry level qualification to bump into a DRO position at the Landlord and Tenant Board was a violation of the collective agreement. A number of FISCO Mediators filed individual disputes at the same time, asserting, inter alia, a right to bump into that position.

14Counsel emphasized that each MOS was agreed to in order to settle only the particular complainant’s dispute. She pointed out that in the release clause in each MOS, the Association undertook to release the employer from all actions, claims etc. “arising out of or as a result of these disputes”. “These disputes” is a reference to disputes that had been filed by the employee being settled by the particular MOS. The dispute filed by Mr. Mbuyi claiming a right to bump into a DRO position did not “arise out of”, Mr. Jackson’s dispute. “These grievances” cannot include grievances filed by Mr. Mbuyi or Mr. Vescio. They formed no part of the MOS settling Mr. Jackson’s dispute. Counsel reviewed the various MOS documents and drew my attention to the language describing the disputes that form the subject of the settlement. There is no reference in that language to any disputes other than those filed by the particular employee. From the employee’s perspective, he/she gave up his/her right to bump, but no one else’s. The employer is attempting to somehow subject the disputes filed by Mr. Mbuyi and Mr. Vescio to the MOS executed to settle two individual disputes filed by Mr. Jackson. It was pointed out that the Agreed Statement of Facts in this proceeding at paragraph 31 (supra) explicitly states that Mbuyi’s dispute remains unresolved.

15Association counsel submitted that the authorities cited by employer counsel turned on the application of the principle of the sanctity of grievance settlements and the binding nature of release clauses in the particular circumstances of those cases. None of them stand for the proposition that, in the absence of specific language, a settlement of one grievance can extinguish a grievance filed by any other employee.

Reply by Employer

16Employer counsel submitted that if the Association’s position is correct, then the employer had provided Mr. Jackson with substantial benefits, a position and damages, without receiving any benefit in return. It settled the disputes of the senior complainants with the expectation that it was thereby “buying peace” with respect to the DRO position targeted by the union. If the Association’s position is upheld the employer would be required to litigate the very issues it intended to settle by the settlement of disputes of the complainants who had a potential claim to bump into a DRO position.

DECISION

17I will not review the extensive case law put to me by the parties. Those authorities stand for the well established proposition that parties must be held to the terms of settlement of grievances, and that arbitrators and this Board strictly enforce that principle. In a recent decision dated November 26, 2018 in Re Kyba et al, 2016-2013 (Disssanayake), the Board reviewed its jurisprudence on this subject and reaffirmed the above noted proposition.

18In this proceeding the Association did not challenge the arbitral principle of “sanctity of grievance settlements” or the validity and enforceability of release clauses. There was no submission that the Association should be entitled to raise or rely on matters settled. Rather, the issue in the motion is whether the right to bump asserted in the Mbuyi dispute had been settled or forfeited in the first place.

19Employer counsel asserted that the motivation for the employer’s decision to settle Mr. Jackson’s dispute was its belief that the MOS would protect the DRO positions in question from bumping claims by any Association member. If that is accepted for purposes of this motion, it would seem unfair to nevertheless require the employer to defend against the very claims it believed had been extinguished. As counsel pointed out, the employer then would have rewarded Mr. Jackson with generous terms of settlement without receiving any benefit in return. It would simply be required to fight the same battle, albeit with a different complainant instead of with Mr. Jackson.

20That submission has appeal from a fairness point of view. However, while I have sympathy for that assertion, the legal reality is that this Board has no equitable jurisdiction. Its authority is to interpret and apply the terms agreed upon by the parties. It cannot disregard, amend or add to the agreed upon terms, even if it is of the view that enforcement of those agreed upon terms result in unfairness to one or the other of the parties.

21Employer counsel referred to Re Bank of British Columbia Pension Plan, (2000) BCCA 291 (B.C. Ct. of Appeal). The court refers to an excerpt from Chitty on Contracts setting out principles courts apply in interpreting releases. One of the principles is set out as follows:

The court will construe a release which is general in its terms in the light of the circumstances existing at the time of its execution and with reference to its context and recitals in order to give effect to the intention of the party by whom it was executed.

The B.C Court of Appeal also cited a passage from White v. Central Trust Co. (1984), , 7 D.L.R. (4th) 236 at p. 248 (NBCA), which included the following; “It is perfectly proper, and indeed may be necessary, to look at the surrounding circumstances in order to ascertain what the parties were really contracting about”.

22I have carefully reviewed the Jackson MOS. The “employer”, the “Association” and the “complainant” are identified as “the parties” to the MOS. The MOS is also signed by the same three parties. I find nothing ambiguous in the terms of the MOS as to the subject matter of the MOS. It is clearly only about the disputes filed by Mr. Jackson, which are clearly identified in the MOS. The “whereas” recital describes the violations alleged in the two disputes “filed on behalf of the complainant”, that is Mr. Jackson. There is no mention in the MOS to any disputes other than the two disputes filed on behalf of Mr. Jackson.

23I agree that in interpreting a MOS, the Board has to, as best as it can, ascertain the intention of the parties. However, the “intention” must be a common understanding reached by the parties, not a subjective one on the part of one party. There is nothing in the MOS from which it could reasonably be concluded, even by inference, that the Association and the employer came to a common understanding that any dispute other than those identified in the MOS will be impacted in any manner by its terms.

24Moreover, even in the Agreed Statement of Fact, there is no reference to any discussion between the parties, let alone agreement, during settlement negotiations that culminated in the execution of the MOS resolving Mr. Jackson’s disputes, about settling or withdrawing disputes or claims by any other complainant. Even if there had been a verbal agreement or understanding that the Association would not pursue claims by any of its members relating to the DRO positions, such oral agreement likely would not have assisted the employer in view of paragraph 18 of Mr. Jackson’s MOS which reads:

18. The Parties agree that this MOS constitutes the entire agreement between the Parties and supersedes any and all written agreements, arrangements, or understandings between the Parties in connection with or incidental to the Disputes or the issues giving rise to or arising from the Disputes.

25It is important to note that the disputes that were settled by the MOS were not policy disputes. Nor were they even group disputes to which Mr. Mbuyi was party. Mr. Mbuyi’s dispute in relation to the DRO position was an individual dispute. If the employer discussed its subjective belief with the Association and had successfully negotiated a term in the MOS to the effect that it would not pursue any disputes in relation to the DRO position, that would have been part of the MOS, and therefore enforceable. However, that has not happened. All we have is a subjective belief on the part of the employer, that settling the dispute filed by the most senior of the complainants, claiming a right to bump into a DRO position would automatically extinguish similar claims in individual disputes filed by other employees. For reasons set out above, that belief, however, honestly held, is not one supportable by law. As I have already observed, this Board has no jurisdiction to declare any aspect of Mr. Mbuyi’s dispute to be settled or otherwise extinguished as a result of the Jackson MOS on considerations of fairness and equity.

27In the result, I find that Mr. Mbuyi is not precluded from pursuing his dispute, including his claim that he is entitled to bump into a DRO position.

28The employer’s motion is hereby dismissed.