IN THE MATTER OF ARBITRATION

BETWEEN:

Association of Law Officers of the Crown (ALOC) Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) Ontario Crown Attorney’s Association (OCAA) Ontario Public Service Employees’ Union (OPSEU) Professional Engineers Government of Ontario (PEGO)

AND

His Majesty the King as represented by the Treasury Board Secretariat (TBS)

Grievances by ALOC, AMAPCEO, OCAA, OPSEU and PEGO concerning the National Day for Truth and Reconciliation

Grievance Settlement Board File No. 2022-8790 (OPSEU Grievances 2022-0999-0013, -0014, -0018, -0019)

Christopher Albertyn - Sole Arbitrator

APPEARANCES

Counsel for ALOC, AMAPCEO and PEGO: Marisa Pollock Karin Galldin Amy Chen GOLDBLATT PARTNERS LLP

Counsel for OCAA: Paul Cavalluzzo Balraj Dosanjh CAVALLUZZO LLP

Counsel for OPSEU: Jorge Hurtado Leila Gaind MORRISON WATTS

Counsel for the Crown in Right of Ontario: Lisa Compagnone Maria-Kristina Ascenzi MINISTRY OF THE ATTORNEY GENERAL TREASURY BOARD SECRETARIAT Legal Services Branch

Hearing held by videoconference on April 28 and 30, 2023.

Decision on Admission of Evidence issued on May 2, 2023.

DECISION ON ADMISSION OF EVIDENCE

The Issue

1. The trade union parties, described more fully below, represent public sector employees of the Crown in Right of Ontario. They have filed grievances that raise a common question: “whether the National Day for Truth and Reconciliation on September 30 falls within the holiday entitlements set out in their respective collective agreements” [para. 9 of the Agreed Statement of Facts].

2. The grievances were filed in response to the Employer’s decision not to recognize the National Day for Truth and Reconciliation (NDTR) as a holiday under the unions’ respective collective agreements [para. 42 of the Agreed Statement of Facts].

3. The parties agree that the issue to be determined first – “the common issue” – is “the interpretive issue of whether the National Day for Truth and Reconciliation is a holiday for purposes of the holiday provisions of the collective agreements in issue” [para. 44 of the Agreed Statement of Facts].

The Issue for this Decision

4. The Employer has sought, as part of addressing the issue of the entitlement to the NDTR as a holiday under the collective agreements, to present evidence (described below) which, it argues, is relevant and probative. The unions contend that the evidence should be treated as inadmissible. This decision addresses the issue.

Jurisdiction

5. The parties agreed to join their grievances and to have them heard and determined by me [para. 43 of the Agreed Statement of Facts].

6. Arbitration of grievances by AMAPCEO, OPSEU and PEGO is governed by the Crown Employees Collective Bargaining Act, 1993, SO 1993, c 38 (CECBA). Under section 7(3), the Grievance Settlement Board (GSB) provides final and binding settlement by arbitration of all grievances. For the grievances by these unions, I have jurisdiction in my capacity as an arbitrator of the GSB, with its imprimatur.

7. Arbitration of grievances by ALOC and OCAA is governed by the Arbitration Act, 1991, SO 1991, c 17. I am appointed pursuant to the provisions thereof.

8. The parties accept that, for the purposes of exercising an arbitrator’s discretion, I am governed by the provisions of the Labour Relations Act, 1995, SO 1995, c 1, Sch A (LRA), particularly section 48(12) thereof, as read with section 7 of CECBA.

9. For the purposes of the decision made herein, Section 48(12)(f) of the LRA empowers an arbitrator (or chair of an arbitration board):

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not;

10. The parties accept that I have the power to admit the evidence the Crown wishes to present. The question is whether I should exercise my discretion to do so.

The Parties

11. The Agreed Statement of Facts describe the parties as follows:

The Parties

1. The Ontario Public Service Employees Union/ Syndicat des employés de la fonction publique de l’Ontario (“OPSEU/SEFPO”) is the exclusive bargaining agent for Crown Employees who work in various provincial ministries and agencies for the government of Ontario, and who are employed within two OPSEU/SEFPO bargaining units (Unified and Correctional) as set out in Article 1- Recognition of the Unified Bargaining Unit Collective Agreement and Correctional Bargaining Unit Collective Agreement.

2. AMAPCEO is the exclusive bargaining agent of, inter alia, professional employees who work directly for the government of Ontario.

3. The Professional Engineers Government of Ontario (“PEGO”) is the exclusive bargaining agent of professional engineers and Ontario Land Surveyors, engineers in training, and surveyors in training, who work directly for the government of Ontario.

4. The Association of Law Officers of the Crown (“ALOC”) is the exclusive bargaining agent of “lawyers and articling students employed by the government of Ontario to provide civil legal services” (ALOC/OCAA Collective Agreement Article 1.4, see Documents, Tab A).

5. The Ontario Crown Attorney’s Association (“OCAA”) is the exclusive bargaining agent of “lawyers and articling students employed in their professional capacity in the Criminal Law Division including fee-for-service lawyers who are either employees or dependent contractors as defined by the Labour Relations Act” (ALOC/OCAA Collective Agreement Article 1.3, Tab A).

6. The labour relations of OPSEU, AMAPCEO and PEGO are governed by the Crown Employees Collective Bargaining Act and through that Act, the Labour Relations Act.

7. The labour relations of ALOC and OCAA are governed by collectively bargained Framework Agreements and the Arbitrations Act.

8. The Crown in Right of Ontario (the “Employer”) is the employer of all of the employees covered by the collective agreements referred to above. The Employer is party to separate collective agreements with each of AMAPCEO, OPSEU, and PEGO. The collective agreement of ALOC and OCAA is a separate agreement that is jointly bargained.

The evidence the Employer wishes to present

12. The Employer has described the evidence it wishes to present as follows [this being an extract from the Employer’s written submissions]:

8. The Employer intends to call the ADM of IAO [Assistant Deputy Minister of the Ministry of Indigenous Affairs], Rebecca Ramsarran, as a witness. A will-say statement of her anticipated evidence was disclosed to the Unions on GSB File No. 2022-8790 3 April 6, 2023, and they will have the opportunity to cross-examine her. To clarify, this evidence is not extrinsic evidence, and the Employer will not be relying on it as such.

9. ADM Ramsarran’s proposed evidence will speak to her involvement in the planning, organization, and follow-up of the NDTR within the OPS.

10. This involvement included engaging with Indigenous partners to understand their objectives and expectations for how the day should be commemorated (a day for learning and reflection), providing advice to the Treasury Board Secretariat (“TBS”) on how to observe NDTR, working with Cabinet Office (“CO”) and TBS to develop education and learning approach to the OPS observance, supporting in developing employer materials for management, coordinating and participating in IAO led events, and providing feedback to CO and TBS on the comments received from OPS staff regarding NDTR activities and events.

11. The proposed evidence highlights that once NDTR was designated as a federal public holiday, feedback on how to treat the day in Ontario was sought from Indigenous partners. This feedback continued up to September 30, 2022, and is still ongoing.

12. ADM Ramsarran’s proposed evidence will highlight IAO’s understanding that most of the feedback was that the day should not be given as a paid holiday, and instead the effort should be focused on learning, reflection, and reconciliation.

13. Once this feedback was obtained from Indigenous partners, the decision was made to treat September 30, 2022, as a day for learning and reflection.

14. Thereafter, IAO was heavily involved in the crafting of education and training materials on how the various ministries, Secretary of Cabinet, Minister of IAO, and Premier, should plan for September 30, 2022.

15. OPSEU has explained that if the Employer is permitted to present the above evidence, it will want to present its own evidence from its indigenous members, and others.

16. The other unions have reserved their right to call evidence on the methodology of the Employer’s consultation process and on the conclusions reached by the Employer in its consultations, if that becomes necessary.

The parties’ submissions and analysis

15. The Employer wishes to present Assistant Deputy Minister Ramsarran’s evidence so that I appreciate the investigation and consultations the Ministry of Indigenous Affairs undertook to determine how best to commemorate the National Day for Truth and Reconciliation as a day for learning and reflection. The Employer wants to show that – based on the feedback from the consultations with Indigenous groups – the most appropriate way for Ontario to treat the day was not as a paid holiday, but as a day of work with tributes focused on learning, reflection, and reconciliation. The Employer wishes to show, through ADM Ramsarran’s evidence, that the input received by the Crown led it to the decision not to treat September 30, 2022 (and, presumably, ongoing in 2023 and beyond) as a paid holiday for the OPS staff represented by the unions.

16. The focus of the Employer’s argument is on Section 48(12)(f) which gives an arbitrator the discretion to admit such evidence, even if the evidence might not be admissible in a court of law. Employer counsel suggest that admitting the evidence for the limited purpose of understanding the Employer’s motivation for its decision not to treat the NDTR as a paid holiday will make the hearing more efficient and so expedite the case.

17. Employer counsel refer to Toronto District School Board v Canadian Union of Public Employees, Local 4400, 2015 CanLII 45426 (ON LA) (Stout). In that case the employer wished to rely on documents which it said provided context for the circumstances arising from the previous round of bargaining. Arbitrator Stout admitted the documents and explained that an arbitrator may do so with the intention of later determining the relevance of the evidence adduced from the documents and its weight, “so long as no party is prejudiced by admitting such evidence” [para. 93].

18. The Employer refers also to Re City of Toronto and Canadian Union of Public Employees, Local 79, 1981 CanLII 1660 (ON SC) [upheld on appeal: 1982 CanLII 2229 (ON CA)]. In that case the Divisional Court set aside an arbitration decision because the board of arbitration had “unduly restricted” its powers by excluding a particular report.

19. The Employer refers also to two GSB decisions, Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Gillis) (Re), 2005 CanLII 94221 (ON GSB) (Abramsky) and Ontario Public Service Employees Union (Ewing) v Ontario (Community Safety and Correctional Services), 2011 CanLII 83698 (ON GSB) (Briggs).

20. In the Gillis case, Arbitrator Abramsky admitted an investigator’s report because the employer had relied on it to discipline the grievors. She made the point that the union was free to “attack and challenge [the investigator’s findings and conclusions] as incomplete, erroneous or improper, among other potential challenges.” [p. 208 of the L.A.C. report]. Arbitrator Abramsky said [at p. 210], that “the fact that an arbitrator admits evidence which, at the end of the day, is given no weight does not taint the arbitration process.” On the strength of the Gillis decision, Arbitrator Briggs also admitted an investigator’s report, making clear that the evidentiary weight to be attached to the report would be determined later.

21. On the strength of these authorities the Employer argues that I should have the relevant background and context explained in ADM Ramsarran’s evidence so that I may understand why the Employer has adopted the position it has.

22. Were this an interest arbitration and my role as arbitrator were to determine whether the Employer has good reasons for substituting a day of learning, reflection, and reconciliation for a paid holiday, the evidence the Employer proposes calling would likely be relevant and probative. If I had to decide whether, sitting as an interest arbitrator, the unions should have a paid holiday in their collective agreements or whether the employees should be engaged at work in carefully planned education workshops provided by the Employer to all staff on September 30 each year to promote learning, reflection, and reconciliation, the evidence of ADM Ramsarran would be relevant.

23. But that is not what this case is about. It is not an interest dispute to determine whether there should be a paid public holiday, or if a day of learning and reflection is a more appropriate alternative, and what the Employer and the unions respectively think about those possibilities. Rather, this is a rights dispute over a right the unions claim exists under their collective agreements.

24. ADM Ramsarran’s proposed evidence is about something tangential to the main dispute between the parties. That evidence is about how September 30 should best be utilized in the interests of Ontario’s Indigenous peoples. It is not about what right the unions have under their collective agreements and whether that right has been violated.

25. As mentioned, the main dispute between the parties “raises a common question, namely, whether the National Day for Truth and Reconciliation on September 30 falls within the holiday entitlements set out in their respective collective agreements” [para. 9 of the Agreed Statement of Facts]. The “interpretive issue [is] whether the National Day for Truth and Reconciliation is a holiday for purposes of the holiday provisions of the collective agreements” [para. 44 of the Agreed Statement of Facts].

26. The Employer wishes to provide evidence of why it does not intend to treat September 30 as a paid holiday. The evidence does not purport to be an aid to the interpretation of the relevant collective agreement provisions. As union counsel submit, the feedback the Employer received from Indigenous partners does not assist in our understanding of the intention expressed in the collective agreements.

27. The broad discretion given to an arbitrator under Section 48(12(f) of the LRA, must be exercised to promote the efficiency of the process, provided there is no prejudice to any party. Evidence is admitted for later review as to its weight – as the Employer requests in this case – to avoid unnecessary delay in argument over admissibility. But there must first be some evidentiary basis for the proper exercise of the discretion.

28. In this case, there is no cogent reason in law to admit the evidence; and it would impede the efficiency of the hearing.

29. I address first the legal grounds as to why the evidence is not admissible. I then address the practical impediment to admitting the evidence.

30. As the unions argue, the evidence the Employer wishes to present is irrelevant to the issue in dispute. The issue is the meaning and the implication of what the parties have agreed in the various collective agreements with respect to holidays. The wording in the various collective agreements in slightly different, but the gist is explained in paragraph 23 of the Agreed Statement of Facts:

With slight variations in introductory wording, the collective agreements at issue all identify a prospective entitlement to “any special holiday as proclaimed by the Governor General or Lieutenant Governor” and all refer to the same holidays.

31. That is the provision in the collective agreements that needs to be interpreted. The Crown’s subjective decision on how to honour the National Day for Truth and Reconciliation has nothing to do with the proper interpretation of that provision. What matters for the determination of the rights of the parties is what that provision means and how it should properly be interpreted.

32. The starting point for the proper interpretation of the provision is the plain meaning of the words chosen by the parties. The words are what matter most (see Elementary Teachers’ Federation of Ontario v Elementary Teachers’ Federation of Ontario Staff Association, 2021 CanLII 3125 (ON LA) (Surdykowski), paragraph 63).

33. Extrinsic evidence can be called only when it is necessary to assist the adjudicator to ascertain the parties’ mutual intention. (See Domtar Inc. and Unifor, Local 156 (Early Swipes), Re, 2019 CarswellOnt 10266 (Stewart)), paragraph 10). Subjective intentions that are not mutual intentions are irrelevant to the interpretation. This was expressed as follows in Cavendish Appetizers and UFCW, Local 175 (R517-0165), Re, 2019 CarswellOnt 10265 (Surdykowski), at paragraph 13:

I went on to explain in paragraphs 38-42 that the Supreme Court of Canada's decision in Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633, 2014 SCC 53 (S.C.C.), particularly paragraphs 46-50 and 55-60 of the decision of Rothstein J. (writing for the unanimous Court) are instructive regarding the appropriate approach to contract interpretation; namely, (to borrow from Rothstein J.) a practical, common sense approach to the contract considered as a whole not dominated by technical rules of construction, with due regard to the context within which the contract was made. The clear message from the Supreme Court of Canada is that the words of the contract must be given their plain and ordinary meaning read in the context of both the contract as a whole and in the objective circumstantial context which was or ought reasonably to have been known to the parties at the time the contract was made. However, Sattva also makes it clear (in paragraph 60) that although relevant context can provide an important interpretive aid, it cannot "overrule" the words agreed to in the contract. That is, it is the words agreed to by the parties in their collective agreement that matter most.

See also Air Canada v Air Canada Pilots Association, 2012 CarswellOnt 4390, [2012] O.L.A.A. No. 64 (Burkett), at paragraphs 39 and 40; Dumbrell v Regional Group of Cos., 2007 ONCA 59, paragraphs 52 – 56; Waterloo Region Record and Unifor, Local 87-M (Davis), Re, 2014 CarswellOnt 16763, [2014] O.L.A.A. No. 416 (Hayes), at paragraph 34; and United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 SCR 316.

34. On this aspect, the unions make the telling point that nothing in the evidence that ADM Ramsarran proposes to give touches on what was known to the parties when they entered into the written agreements, which would be the only relevant contextual and surrounding circumstances evidence that could be admitted.

35. The evidence the Employer seeks to present is showing its motivation for not granting the public holiday; it is not in any way directed at explaining the intention of the parties with respect to the words used in the collective agreements.

36. The role and nature of admissible evidence of “surrounding circumstances” in the interpretation of a contract was described as follows by Justice Rothstein in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, the case referred to above, at paragraphs 56 and 57:

[57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).

[58] The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.

37. See also Bruce Power LP v Society of Energy Professionals, 2017 CanLII 94612 (ON LA) (Surdykowski), at paragraphs 41 and 42; and Labourers' International Union of North America, Local 1059 and Labourers' International Union of North America, Ontario Provincial District Council v Bruce Power LP, 2020 CanLII 96012 (ON LRB).

38. The conclusions for collective agreement interpretation from Justice Rothstein’s decision in Sattva are nicely summarized in Alberta Union of Provincial Employees v Alberta Health Services, 2020 ABCA 4, at paragraph 44:

[44] The following conclusions flow from the above analysis. First, labour arbitrators must consider evidence of relevant surrounding circumstances when interpreting a collective agreement regardless of whether the language is ambiguous. Second, it is never appropriate to consider the subjective intention of the parties when interpreting a collective agreement (Sattva, at para 59; IFP at para 87; Arbitration Award at para 35). Third, there may remain circumstances where it will be necessary to establish an ambiguity in the contract language before being permitted to admit evidence, for instance: some evidence of negotiations not otherwise admissible as surrounding circumstances; past practice, or post contract conduct: IFP at para 87.

39. Nothing that ADM Ramsarran can testify to has anything to do with the parties’ mutual intention at the time they concluded the collective agreement that first contained the holiday provisions. That occurred for OPSEU in 1978, for AMAPCEO in 1998, for PEGO in 1996, and for ALOC and OCAA in 1990. There is no suggestion of any evidence being given by the Employer to explain the parties’ mutual intention at the time the provision came into each of the collective agreements. The proposed evidence gives neither context, nor surrounding circumstances, for the interpretation of the collective agreements. It is therefore inadmissible.

40. There is also a practical impediment to following the Employer’s suggestion of letting in the evidence and later determining its usefulness and weight. Doing so would generate an unnecessary line of inquiry and cause unnecessary delay in addressing the main issue.

41. As union counsel argue, the process will be wholly less efficient, with markedly less expedition, if evidence is presented on how best the purposes of acknowledging the historical experience of Canada’s Indigenous peoples and of how reconciliation can best be accomplished. The unions would reasonably require production of all the underlying documents that inform the conclusions that ADM Ramsarran will explain so that they may check the validity of those conclusions. The unions will need to do an extensive review of the Employer’s consultation process, which was done without union participation. The unions will themselves be put to investigating the same issues (to the extent they have not already done so) and to producing their own reports and conclusions. This will involve more elaborate production and more evidence on the subjects raised. There will necessarily be significant delay in the completion of this matter, particularly as compared to the alternative, which is simply to address the issue of what obligation, if any, the Employer has agreed to with respect to the National Day for Truth and Reconciliation as a paid holiday. The delay that would be occasioned, and the additional work required of the unions in preparing their cases, if a new a new area of inquiry is opened up – as it would if ADM Ramsarran’s evidence is permitted – would necessarily be prejudicial to the unions. This is because they would be put to expense and effort on an issue which is tangential to the main dispute over the proper interpretation of the language in the collective agreements. (See an analogous situation in Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CarswellOnt 130, [2013] O.L.A.A. No. 6 (Slotnick), at paragraph 34).

42. Accordingly, for reasons of efficiency and particularly because the proposed evidence is inadmissible, the Employer may not introduce the proposed evidence of ADM Ramsarran.

43. Therefore, at the next hearing date, next week, on May 8, 2023, there will be argument on the merits of the main case. As previously arranged, the unions’ written argument summaries and casebooks will be provided by May 5, 2023.

DATED at TORONTO on May 2, 2023.

“Christopher Albertyn”

Christopher J. Albertyn Arbitrator