IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union)

Union

and -

The Crown in Right of Ontario

(Ministry of Children, Community and Social Services)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Christopher Bryden

Ryder Wright Holmes Bryden Nam LLP

Counsel

FOR THE EMPLOYER

Julia Evans

Treasury Board Secretariat

Legal Services Branch

Senior Counsel

HEARING

June 3, September 27, October 4 & 21 2024; February 27, March 31, April 7, May 15 and June 26, 2025

Decision

1The grievances before me concern the proper interpretation of clause 18.1.1(b) of the 2015-17 Central Working Conditions and Employee Benefits Collective Agreement (the “Collective Agreement”).¹ Article 18.1 determined the continuous service date (“CSD”) employees. Continuous service determines an employee’s seniority for the purposes of job competitions, bumping and recall rights and certain other entitlements. Clause18.1.1(b) specified how continuous service was to be calculated for a fixed-term employee converting to regular employee status. At the relevant time it read:

An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence:

(b) from the date established by adding the actual number of full-time weeks worked by a full-time fixed-term employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks;

For service accumulated after October 30, 2015, full-time fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority, based upon 1725.5 straight-time hours or 1,904 straight-time hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate;

[Emphasis supplied.]

The parties agreed to add the second paragraph (and the word “or”) during the negotiations which resulted in the 2015-2017 Collective Agreement. The first paragraph remained unchanged. While the negotiations took place in 2014 and 2015, the negotiations in relation to clause 18.1.1(b) all took place in 2014. For ease of reference, I shall refer to these as the 2014 negotiations. Unless context demands otherwise, I shall also refer to clause 18.1.1(b) simply as “clause (b)” and shall use “the first paragraph of clause (b)” to describe both the first paragraph of clause (b) in the 2015-2017 collective agreement and clause (b) as it was prior to the addition of the second paragraph, even though of course it only consisted of one paragraph at that time.

2“Fixed-term” is a reference to a contract of employment of a fixed-term, as distinct from a permanent contract of employment. Fixed-term contracts can take various forms. For the purposes of this decision, the following are illustrative of forms that are or were used. A “full-time” fixed-term contract provides that the employee will be regularly scheduled to work full-time hours for the classification of the position. Depending on the classification of the position, full-time hours will be 40 hours per week or 36.25 hours per week. A “casual”, “irregular” or “on-call” fixed-term contract typically provides an employee may work up to the full-time hours for the classification. A “part-time” fixed-term contract may provide that an employee will be regularly scheduled for a specified number of hours which is less than the full-time hours for the position, (e.g. 24 hours per week), with hours in excess of that amount paid on an overtime basis.

3The dispute between the parties is with respect to the effect of the addition of the second paragraph to clause (b) in the 2015-17 Collective Agreement to the calculation of the continuous service date of a fixed-term employee who converted to permanent status after October 30, 2015. The Union’s position is that the first paragraph ceased to have application and the second paragraph applied to all fixed-term employees, whether they were full-time fixed-term or not. The Union relies on the context in which the 2014 negotiations took place, in particular prior interpretations of the first paragraph of clause (b) and statements made during those negotiations. The Employer’s position is that the first paragraph continued to apply to all fixed-term employees and the second paragraph provided for an alternative calculation applicable only to full-time fixed-term employees. The Employer relies upon the language of the second paragraph itself, which it argues is clear. The Employer also argues that neither prior interpretations of the first paragraph of clause (b) nor statements made during the 2014 negotiations support the Union’s interpretation. Notably, the Union does not argue that if the Employer’s interpretation of the second paragraph of clause (b) is correct, then the Employer is estopped from relying on that interpretation.

~~[4]~~

The Principles of Contractual Interpretation and the Significance of Context

4The principles applicable to contractual interpretation were recently restated by the Supreme Court of Canada in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53:

47 [T]he interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine "the intent of the parties and the scope of their understanding" .… To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed.... In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.

48 The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.

[Citations omitted]

5The Union relies on the well established principle that language in a collective agreement or changes to the language of a collective agreement should be construed “with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged”: United Electrical Workers, Local 512, and Tung-Sol of Canada Ltd., (1964) 15 LAC 161, [1964] CarswellOnt 520, 1964 CanLII 1021 (ON LA) (Reville) at para. 3. The Employer does not dispute this principle. It argues, however, that its interpretation does not truncate seniority rights. Rather it extends additional seniority rights to full-time fixed-term employees. I agree. I would also observe that on either the Employer’s interpretation or the Union’s interpretation, there may have been a change in the relative seniority of fixed-term employees whose continuous service date was established under the predecessor collective agreement. In other words, both parties agreed to an amendment which might give rise to a relative change in seniority of some employees.

6As noted, both parties advanced arguments with respect to context. The Union referred to: Toronto District School Board v CUPE Local 4400, Unit B, 2016 CanLII 32987 (ON LA) (Hayes); Ispco v. B.S.O.I.W., Local 801, 2004 CanLII 94709 (AB GAA), 2004 CarswellAlta 984, [2004] A.G.A.A. No. 14, 124 L.A.C. (4th) 403, 76 C.L.A.S. 190 at paras. 44 and 47. The Employer referred to: Canadian Labour Arbitration, 5th Edition § 4:20, § 4:21, § 4:22, § 4:34, § 437; Sattva Capital Corp. v. Creston Moly Corp, op. cit.; Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59; Waterloo Region Record and Unifor, Local 87-M (Davis), 2014 CarswellOnt 16763 (Hayes); Amalgamated Transit Union - Local 1587 v Ontario (Metrolinx - GO Transit), 2021 CanLII 48235 (ON GSB) (Anderson); Bruce Power LP v Society of Energy Professionals, 2017 CanLII 94612 (ON LA) (Surdykowski).

7As the Employer observes, I reviewed much of this law in Metrolinx. As stated in Metrolinx:

63In Sattva, the Supreme Court of Canada held the words of a written agreement must be understood in context and thus extrinsic evidence of context was admissible. The agreement of the parties, however, is expressed in the words they use: context is not a substitute for them. The Court stated:

(b) The Role and Nature of the “Surrounding Circumstances”

57While 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 .… 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 .… 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.

58The 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 …, 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” .… 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.

59It is necessary to say a word about consideration of the surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing .… To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties .… The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contrac …

60The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise.

61Some authorities and commentators suggest that the parol evidence rule is an anachronism, or, at the very least, of limited application in view of the myriad of exceptions to it .… For the purposes of this appeal, it is sufficient to say that the parol evidence rule does not apply to preclude evidence of surrounding circumstances when interpreting the words of a written contract.

[Citations omitted.]

8Ipsco, cited by the Union, was not before me in Metrolinx. It also predates Sattva. The analysis in the paragraphs of Ipsco relied upon by the Union illustrates the problem with the law prior to Sattva, so colourfully and memorably described by Arbitrator Hayes in Toronto District School Board as follows:

Consideration of context is not new to labour arbitration but the historical approach, in Ontario at least, has required formal deference to the common law parol evidence rule. This has required an initial demonstration of ambiguity before admitting extrinsic evidence of any kind. In a contested situation, following ritual reference to Leitch Gold Mines Ltd.7, what normally occurs is designation of the alleged ambiguity as ‘patent’ or ‘latent’. If the ambiguity is said to be ‘latent’, evidence is permitted both to prove the so-‐called ambiguity and to resolve it. Unsurprisingly, as this unfolds, many parties lose track of what is happening as their dispute slowly disappears into legal fog.

While Ipsco’s result is not necessarily inconsistent with Sattva, I do not find its analysis of assistance.

9The words in the second paragraph which are the basis of the dispute between the parties are “full-time fixed-term employees”. The Employer argues these words restrict the application of the second paragraph to fixed-term employees who are full-time. The Union relies upon “context” to argue these words do not give rise to such a restriction, rather the second paragraph of clause (b) applies to all fixed-term employees whether full-time or not. Context, however, must not be permitted to overwhelm the clear meaning of the words which the parties used to express their agreement. In my view, the ordinary and grammatical meaning of the words “full-time fixed-term employee” is to describe a group of employees who are both full-time and fixed-term. The Union does not explain how these words could be given any other meaning. In my view, the clear meaning of the words used by the parties to express their agreement is as stated by the Employer, irrespective of context.

10I also agree with the Employer that subsequent to October 30, 2015, the first paragraph continued to apply to all fixed-term employees and the second paragraph provided for an alternative calculation applicable only to full-time fixed-term employees. This flows from my conclusion that the second paragraph only applies to full-time fixed-term employees. If the first paragraph did not continue to apply to other fixed-term employees, then there would be no recognition of their service as a fixed-term employee upon conversion to permanent status. That would amount to a truncation of prospective seniority rights. Further, and in any event, on the Union’s interpretation the first paragraph applied up to October 30, 2015 and the second paragraph applied after October 30, 2015. Only one of these paragraphs would apply to any given employee. At best, this interpretation would render superfluous the word “or” which was added to the end of the first paragraph as part of the amendments. It is also arguable that the Union’s interpretation is inconsistent with the use of the word “or”, since it implies the availability of an alternative, albeit limited to “full-time fixed-term” employees. These concerns strengthen my conclusion that that the Employer’s interpretation of clause (b) as amended is to be preferred.

11In the event that I am wrong in these conclusions, I turn to the contextual factors relied upon by the Union: the prior interpretation of the first paragraph of clause (b); and statements made during the 2014 negotiations. The question is whether the Union has proven that either of these contextual factors establish that when agreeing to the second paragraph of clause (b) the parties shared the understanding that the words “full-time fixed-term” employees have the meaning attributed to them by the Union. For the reasons which follow I am not satisfied the Union has established that they did.

Prior Interpretation of the First Paragraph of Clause (b)

12It is useful at the outset to note that what are now referred to as “fixed-term” employees (also some time referred to as “FXT”) and “regular” employees were formerly referred to as “unclassified” and “classified” employees respectively. The terms “fixed-term” and “regular” employees are used under the Public Service of Ontario Act, 2006, SO 2006, c. 35, Sch. A (“PSOA”), which was proclaimed in effect in 2007. The terms unclassified” and “classified” employees were used under the Public Service Act, RSO 1990, c. P. 47. The Public Service Act was repealed and replaced by the PSOA. This change in language was reflected in the 2009-12 collective agreement, which substituted the term “fixed-term” for “unclassified” in Article 18.1.1(b). I will use the term “fixed-term” to describe both “fixed-term” and “unclassified” unless the context demands otherwise.

13The Union argues that for twenty years prior to the 2014 negotiations, a reference to “full-time fixed-term” was understood by the parties to be a reference to all fixed-term employees, whether full-time or not. It traces this understanding to the decision of Arbitrator Gray in OPSEU (Scott et al) v. Ministry of Community and Social Services, GSB No 1996-1434, April 2, 1997.

14I disagree that Arbitrator Gray held that “full-time fixed-term” had the expansive meaning ascribed to it by the Union for the following reasons.

15In Scott, Arbitrator Gray was called upon to interpret what is now the first paragraph of clause (b). The context was that there had been a substantively different version of clause (b) prior to 1992. In 1992, the parties adopted what is now the first paragraph of clause (b), but with a prefatory phrase which restricted it to prospective application. In the 1994-98 collective agreement, the parties removed the prefatory phrase so that the first paragraph applied not only prospectively but retrospectively. Arbitrator Gray was called upon to interpret the effect of this change. There was no dispute between the parties that the phrase “full-time weeks” was a reference to weeks in which an employee works full-time hours (40 or 36.25 depending on the classification): see p. 17 of Scott. The issue which Arbitrator Gray determined was stated by him as follows (see p. 18):

… what the phrases "worked by a full-time unclassified employee" and "during his full-time employment" add to "full-time weeks" as a limit or limits on obtaining credit for weeks of unclassified employment.

16Arbitrator Gray described the parties’ positions as follows (p. 19):

The employer says that the qualification introduced by the added “full-time” references is that the “full-time weeks” are not credited unless the employee worked them during the term of an unclassified employment contract which either expressly provided for “full-time” employment or was a de facto “full-time” contract because the employee actually worked full-time hours in each and every week of the contract. The union says that the qualification introduced by the added “full-time” references is that the hours said to make up a “full-time week” must have been treated as the hours worked by a full-time employee would have been as regards to entitlement to an overtime premium. Like the employer’s interpretation, the union’s lends some importance to the terms of the unclassified contract in force at the time the “full-time weeks” were performed, since the terms of the contract determine how many hours a “part-time” employee can work in a week before any additional hours worked in that week attract an overtime premium.

17Arbitrator Gray stated that viewed in isolation either interpretation seemed reasonable. However, having regard to the history of clause (b), and given that as of the 1994-98 collective agreement the first paragraph was not limited to prospective application, the employer’s interpretation gave rise to the possibility that an employee would get less credit for unclassified service than he or she would have under the pre-1992 language of clause (b): see p. 19 of Scott.

18At p. 20 of Scott, Arbitrator Gray noted:

There is a well-established arbitral rule of collective agreement interpretation that “an employee’s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with utmost strictness whenever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement”…. This principle is applied in assessing the effect of amendments to a collective agreement.

Applying this rule to the matter before him, Arbitrator Gray adopted the Union’s interpretation and at p. 22 of Scott stated the following test:

For the foregoing reasons, I prefer and adopt the union’s interpretation of, [sic] the current language of clause 18.1(b) on this point. An employee need not have been working pursuant to an express or de facto “full-time” unclassified contract in order to claim credit for a “full-time week” worked, but hours for which an overtime premium was payable do not count in determining whether the hours worked by the employee in a week made it a “full-time week”.

19In OPSEU (Lane) v. Ministry of Community and Social Services, GSB No 1995-1603, October 23, 1998, Arbitrator Gray had occasion to revisit this test. His reason for doing so arose from the facts set out at para. 2 (b) of Lane:

[T]he grievor was scheduled to work five distinct 8 hour shifts [in a week] but got paid at the overtime rate for all or part of one of those shifts because it began less than 24 hours after the beginning of the previous shift, with the result that the number of hours for which he was paid at a regular rate was less than 40 [the number of hours in a “full-time week” for a full full-time employee].

20At para. 38 of Lane Arbitrator Gray stated:

It was not apparent to me at the time of the Scott et al. decision that something resembling a 40 hour, five by 8 week of a full-time employee could attract an overtime premium under any other part of Article 3.4 when worked by an unclassified employee on an “up to 40 hours” contract, nor was I aware of any special agreement that might have had that effect. Accordingly, in describing the result it seemed sensible to combine the “full-time weeks worked” test - which focused on the number of hours worked - and the “by a full-time unclassified employee during his full-time employment” test - which focused on the nature of employment and excluded those whose employment contracts provided for a regular work schedule of fewer than full-time hours - into a single test that simply excluded from consideration hours paid for at overtime rates. It seemed that such a test would have the same effect as the two distinct tests I intended it to reflect.

21Following further discussion Arbitrator Gray restated the single test from Scott as two distinct tests:

[40]. For the purposes of Article 18.1(b), then, a “full-time week worked” by an unclassified employee is a week in which the employee “worked” (in the expanded sense the employer’s practices may be found to have given that word) at least the number of hours associated with full-time employment in the equivalent classification in the civil service, according to the relevant schedule in the Public Service Act.

[41]. The second of the two tests to which I have referred is the one provided by the words “worked by a full-time unclassified employee during his full-time employment”. As I have said, this operates to exclude “full-time weeks” worked by someone employed on a contract that provided for a fixed number of regular hours of work that is less than the number of hours of work associated with full-time employment in the equivalent classification in the civil service.

22In short, in Scott and Lane the issue addressed by Arbitrator Gray was which weeks worked by a fixed-term employee could be counted for the purposes of the calculation of an employee’s continuous service date pursuant to the first paragraph of clause (b). He formulated two tests. The first test, based on the phrase “full-time weeks”, focused on the number of hours worked in a week. Any week in which a “fixed-term” employee worked the equivalent of full-time hours was included on the basis of the first test. The first test did not distinguish between types of fixed-term employees. In that sense, the first paragraph of clause (b) applied to all fixed-term employees, whether full-time or not.

23The second test, based on the phrase “worked by a full-time unclassified employee during his full-time employment”, operated to exclude from those full-time weeks certain weeks based on the nature of the fixed-term employee’s employment. The second test compared the number of hours of work per week provided for in a fixed-term employee’s contract with “the number of hours of work associated with full-time employment in the equivalent classification in the civil service” (for simplicity, the hours of work of a full-time regular employee). Full-time weeks worked by someone employed on a contract that provided for a fixed number of regular hours of work which was less than the hours of work of a full-time regular employee were excluded. By contrast, full-time weeks worked by someone employed on a fixed-term contract that provided for a number of regular hours of work which was the hours of work of a full-time regular employee were included. Full-time weeks worked by someone employed on a non-full-time fixed-term contract were also included, provided the contract provided they were paid at regular hourly rates. In short, the second test compared the hours of those employed under full-time fixed-term contracts and those employed under non-full-time fixed-term contracts with the hours of a regular full-time employee. It did not equate the two types of contracts. It did not provide that all fixed-term employees are full-time fixed-term employees, as the Union’s argument requires.

The 2014 Negotiations

24It bears repeating at the outset that the issue is whether the Union has proven that when agreeing to the second paragraph of clause (b) the parties shared the understanding that the words “full-time fixed-term” employees have the meaning attributed to them by the Union.

25Other than as noted, there is no material dispute with respect to the facts.

26The Union’s bargaining team for the 2014 round of bargaining consisted of Union staff members and individuals elected as representatives from the bargaining unit. The staff members were: Ruth Hamilton, Chief Negotiator; Twyla Marsden, Senior Job Security Officer and Steve Crossman, Research Officer. The elected representatives consisted of Roxanne Barnes, as team chair, Ron Langer, as team vice chair and 11 or 12 other elected representatives of which Tim Elphick was one.

27The Employer’s bargaining team for the 2014 round consisted of: Bob Bass, Matt Siple, Mike Mously, Mary Clair Bass, Pallavi Mhaisalkar, Steven MacKay, Matt Hopkins, Jennifer Barton, John Dean, Nancy Sauve, Pat Mammoliti, and others. Mr. Bass, Mr. Siple and Mr. Mously acted as leads for the Employer team, with Mr. Bass being the main spokesperson for the Employer at the bargaining table.

28Mr. Elphick and Ms. Hamilton testified on behalf of the Union. Ms. Mhaisalkar and Mr. MacKay testified on behalf of the Employer.

29Mr. Elphick is employed by the Union as a Staff Representative. He had been in that position for almost 6 years at the time he gave his evidence in 2024. Prior to that he had worked for the Ministry of the Attorney General (“MAG”) in the Court Services Division. He was first hired by MAG as a fixed-term employee in 2008. He became a regular employee in 2013. He has long standing involvement with the Union. He was first elected to a position with his Local in or around October 2011. In 2012 he was elected Local President. He joined the MERC (Ministry Employee Relations Committee) for MAG shortly thereafter. He was elected MERC chair in 2014. In June, 2014 the was elected as the administrative category representative to be part of the OPS (Ontario Public Service) Union Bargaining Team. As such, he participated in the 2014 round of collective bargaining. His role included being part of the team which made proposals, made decisions, responded to proposals and ultimately reached agreements with the Employer.

30Ms. Hamilton retired from the Union in 2016. During her association with the Union, she had extensive negotiating experience. In 1986 she started working at Confederation College in Thunder Bay as a librarian, first on a part-time basis (which was not unionized at the time) and then on a full-time basis. Once she became full-time, she became a member of the Full-Time Support Staff (“CAAT-S”) bargaining unit. She held various roles with her Union Local and eventually sat on the Provincial CAAT-S bargaining team. She did so for two or three rounds of negotiations. In 1998 she was hired as a Research Assistant by the Union. She became a Negotiator in 2000 and a Senior Negotiator in 2008. In 2010, she became Supervisor with the Union for the OPS. As such her responsibilities included negotiating the central and unified collective agreements for the OPS. She stayed in that role until she retired in 2016. She was the lead negotiator for the Union during the 2014 negotiations.

31Ms. Mhaisalkar is currently a Corporate Staff Relations Officer with the Employer within the Corporate Labour Relations of Treasury Board Secretariat. She has held the position since 2019. She started her employment with the OPS in 2011 as an Intern in what was then the Centre for Employee Relations. She became an Employee Relations Advisor in or about November 2012. In 2014, she became a Corporate Staff Relations Officer with the Negotiations Branch. She was in that position at the time of the 2014 negotiations and was a member of the Employer negotiating team for the Unified collective agreement. Leading up to the negotiations she was involved in developing and preparing the Employer’s draft proposals, which included performing research and jurisdictional scans. During bargaining she was in the Employer caucus room and at the table. She took “table notes” as people were speaking to the best of her ability in which she tried to note down what was said by both sides as it was happening as well as noting down proposals exchanged.

32Mr. MacKay has been the Director of the Negotiations Branch in Treasury Board Secretariat since April, 2021. As such, his responsibilities include all collective bargaining negotiations with all bargaining units and managing the process related to compensation for judges in the provincial sector. He started with the OPS 2011 as a Labour Relations Intern. After a year he became an Employee Relations Advisor with Corporate Labour Relations. He has been with the Negotiations Branch since 2014. He was in that position at the time of the 2014 negotiations. He was part of the Employer bargaining team at the table during negotiations. His role was to listen intently and take notes to be used for debriefs in the Employer caucus room. He did not speak at the table but did research on some of the issues which arose at the table.

33Ms. Hamilton was the Union’s lead negotiator in the 2014 negotiations. Apart from one point, noted below, she fairly and candidly stated that she had no specific recollection of what was said during the 2014 negotiations in relation to clause (b). Given that she was testifying almost 10 years after the fact, this is not surprising.

34Ms. Mhaisalkar’s took notes on her computer during the parties’ joint negotiating sessions. She was able to explain her notes, but had no independent recollection of what took place even after looking at those notes. Given that she was testifying almost 10 years after the fact, this is not surprising.

35Both Mr. Elphick and Mr. MacKay had some recollection of the negotiations. Mr. MacKay’s recollection was largely based on his notes. Mr. Elphick testified as to some recollection independent of his notes.

36Mr. Bass was the Employer’s lead negotiator in the 2014 negotiations with respect to many issues, including clause (b). Mr. Siple was the Employer’s secondary lead negotiator, taking the lead on other issues. Neither testified. The Union relies on statements allegedly made by Mr. Bass during those negotiations. It argues that to the extent that the statements made by Mr. Bass were unclear, Mr. Bass was best situated to given evidence as to what he intended in making those statements. It asks me to draw an adverse inference from the failure of the Employer to call Mr. Bass and Mr. Siple to testify. I decline to do so for the following reasons.

37I commence by observing that Mr. Bass’ intentions are irrelevant. As stated in Metrolinx:

64As noted in Sattva, the parol evidence rule would preclude extrinsic evidence of the subjective intentions of the parties. While Sattva notes the parol evidence rule has been subject to criticism from many quarters, it decides only that it does not preclude evidence of surrounding circumstances. Put differently, arguably Sattva does not decide whether evidence of the subjective intentions of the parties continues to be irrelevant and inadmissible.

65Other decisions relied upon by the Employer, however, suggest that evidence of the subjective intentions of the parties is irrelevant and inadmissible. Dumbrell (which pre-dates Sattva) states so expressly: see paras. 49 and 50. In Air Canada (which also predates Sattva), Arbitrator Burkett noted the court had reached this conclusion in Dumbrell: see p. 28. In Waterloo Record, after reviewing Dumbrell, Air Canada and Sattva, Arbitrator Hayes stated at para. 34:

Sattva and Dumbrell also provide guidance as to when contextual evidence should be admitted. Both judgments make it clear that a decision-maker should exercise restraint. The inquiry should not be directed at what the subjective intentions of the parties may now be said to have been. It means that the words used by the parties to express their intention should retain presumptive prominence but context should not be ignored.

38Further, the issue is not what Mr. Bass said, but rather whether the parties had a shared understanding which can be relied on as part of the context for interpreting the second paragraph of clause (b). Mr. Bass’ statements are merely evidence which may or may not tend to prove that there was a shared understanding.

39All of the statements by Mr. Bass relied upon by the Union were allegedly made during meetings attended by both negotiating teams. There is no suggestion that Mr. Bass or Mr. Siple were uniquely situated to hear what was said. As demonstrated by Ms. Hamilton’s general inability to recall what was said, there is no reason to assume that Mr. Bass’ role as lead negotiator or Mr. Siple’s role as secondary lead negotiator would make it more likely that either would recall what was said more than anyone else. Any person in attendance was equally able to testify as to what was said. Like the Union, the Employer called two members of its large negotiating team to testify as to what they recalled of the negotiations. They testified as to notes which they made contemporaneously during the negotiations. In these circumstances, there is no reason to draw an adverse inference from the Employer’s failure to call Mr. Bass or Mr. Siple, just as there is no reason to draw an adverse inference against either party for failure to call all other members of its negotiating team.

40The Union cites ATU, Local 113 and Toronto Transit Commission (McNicoll Garage), 2021 CarswellOnt 12063, 149 C.L.A.S. 153, 331 L.A.C. (4th) 314 (Shime). In that case, the dispute was with respect to the interpretation of a new provision of the collective agreement. During negotiations, the provision was presented to the union by the employer during a meeting attended only by two people who were the chief negotiators for the parties. The employer sought to rely on evidence of the drafter of the provision as to the employer’s intention with respect to the meaning of the provision. The union sought to rely on evidence of two members of the union negotiating team as to their understanding of the meaning of the provision based on what they were told by the union’s chief negotiator following his meeting with the employer’s chief negotiator. Neither party called the person who was its chief negotiator. In the circumstances, Arbitrator Shime stated he was prepared to call an adverse inference against both parties: see para. 19. Notably at para. 18 Arbitrator Shime held that the evidence of the employer’s witness with respect to intention was precluded on the basis of Sattva. The Union notes that in the case before me it called Ms. Hamilton while the Employer failed to call its chief negotiators. In the result, the Union argues, an adverse inference should be drawn against the Employer.

41I disagree that Toronto Transit Commission stands for the proposition that an adverse inference will be called for failure to call a chief negotiator. Rather, it stands for the proposition that an adverse inference may be called if no direct evidence is led with respect to a dispute as to what was said during a meeting. In Toronto Transit Commission there were only two individuals with such direct knowledge: those two individuals happened to be the chief negotiators of each party. In drawing the adverse inference, Arbitrator Shime referred to the individuals by name: he did not refer to them as the chief negotiators. In the case before me there were many others present during the meeting in which the statement was allegedly made. There is no general requirement that either party provide evidence from its chief negotiator as to what was said in negotiations. If there were, Ms. Hamilton’s inability to recall what was said would be fatal to the Union’s case.

42The Union cites Yellow Pages Group Co. and Unifor, Local 6006 (Debideen), 2017 CarswellOnt 12675, [2017] O.L.A.A. No. 238, 132 C.L.A.S. 202, 285 L.A.C. (4th) 138 (Luborsky). In that case Arbitrator Luborsky stated an adverse inference may be drawn against a party from the failure to call a “witness who might have reasonably resolved an evidentiary controversy”: see para. 76. This inference applies notwithstanding the fact that the other party has the burden of proof where that party has established a prima facie case such that the evidentiary burden has shifted to the party which failed to call the witness. The party may be able to avoid the adverse inference if it provides a reasonable explanation for its failure to call the witness: see para. 78. The Union cites Ontario (Ministry of Transportation) and OPSEU (Louis), 2014 CarswellOnt 7676, 119 C.L.A.S. 81, 243 L.A.C. (4th) 334 (Harris) at paras. 87 and 92 as another case which applied these principles.

43I have no difficulty with any of these principles. Where, however, there is more than one witness who might reasonably resolve an evidentiary controversy, these principles do not provide that a party must call all of those witnesses nor do they dictate which of the possible witnesses it should call. In this respect, paras. 73 and 74 of Lakehead University and LUFA, 2018 CanLII 118728 (CA LA), 2018 CarswellOnt 2512, 134 C.L.A.S. 238 (Surdykowski) cited by the Employer are on point:

73 It is up to each party to call witnesses to establish the facts it seeks to rely on, whether for its own case or to counter the case for the party opposite. If a party does not call an obviously significant witness to testify without sufficient explanation, an arbitrator may draw the adverse inference that that witness would have given evidence unfavourable to that party.

74 Levesque v. Comeau, [1970] S.C.R. 1010 (S.C.C.), 1970 CanLII 4 remains the leading Canadian case on adverse inference. That decision makes it clear that the failure to call a particular witness does not in and of itself give rise to a presumption of adverse inference. If the evidence was or could have been obtained through another means, including through another witness, an adverse inference will generally not be drawn, or the level of adverse inference drawn will be reduced. However, if the evidence available through other means was not the best evidence available, an adverse inference may be drawn. As the Court put it in MacMaster (Litigation Guardian of) v. York (Regional Municipality) (1997), 42 M.P.L.R. (2d) 90 (Ont. Gen. Div.) at paragraph 28:

An adverse inference with varying weight attached to it may occur in circumstances where a party fails to call a material witness, and it is apparent from all of the other evidence in the case that the witness, who was particularly and uniquely available to that party, would have been able to help the court by giving evidence on a material issue.

44In the case before me, it may be that Mr. Elphick’s evidence established that Mr. Bass made the statements upon which the Union relies during the E10/U10 discussion and that this is sufficient to give rise to a prima facie case (as noted elsewhere in these reasons, the Employer disputes that proposition). A prima facie case may give rise to an adverse inference in the absence of responding evidence. But in this case, the Employer called in response two members of its negotiating team who were also present during the discussions when the statement was allegedly made: Ms. Mhaisalkar and Mr. MacKay. For the reasons already stated, there is no particular reason to think that either Mr. Bass or Mr. Siple were better situated to recall the discussion than Ms. Mhaisalkar or Mr. MacKay. Indeed, because Ms. Mhaisalkar and Mr. MacKay each made contemporaneous notes and were able to rely on them for the purposes of giving their evidence, it is arguable that they were more likely to have some recollection of an event which took place ten years ago. By contrast, there is no evidence that either Mr. Bass or Mr. Siple made notes. Accordingly, as I have stated, I decline to draw an adverse inference from the Employer’s failure to call Mr. Bass or Mr. Siple. In the result, the lack of an explanation from the Employer for its failure to do so is of no particular moment.

45The Union cites Girvin v. Consumers' Gas Co., 1973 CanLII 706 (ON HCJDC), 1973 CarswellOnt 281, [1973] O.J. No. 2323, [1973] O.J. No. 814, 1 O.R. (2d) 421, 40 D.L.R. (3d) 509 for the principle that exclusive reliance on hearsay evidence as proof of a central issue in dispute constitutes a denial of natural justice as the responding party is denied the opportunity to cross-examine on that evidence. It also refers to several cases which adopt and apply this principle: British Columbia v. B.C.G.E.U. (Correctional Services Component), 1987 CanLII 8881 (BC LA), 1987 CarswellBC 1984, [1987] B.C.C.A.A.A. No. 33, 27 L.A.C. (3d) 311, 4 C.L.A.S. 78 (Hope) at paras. 40-44; and G-P Flakeboard Co. and USWA, Local 52U, 2004 CarswellOnt 10625, 77 C.L.A.S. 91 (Tims) at paras. 122-124; and Ontario (Ministry of Children and Youth Services) and OPSEU (Iyamu), 2015 CarswellOnt 14159, 124 C.L.A.S. 171, 262 L.A.C. (4th) 139 (Nairn) at para. 20 and 35-36. It argues the evidence tendered by the Employer with respect to Mr. Bass’ statement is therefore inadmissible as hearsay.

46I disagree that the evidence tendered by the Employer was hearsay. The Employer called Ms. Mhaisalkar and Mr. MacKay as witnesses. Both were present when Mr. Bass made his statement. Both made contemporaneous notes. The purpose of the notes was to provide the Employer side with a reliable record of what was said during the negotiation sessions, just as the purpose of Mr. Elphick’s notes was to provide the Union side with a similar record. With the assistance of his notes, Mr. MacKay was able to give direct evidence with respect to what Mr. Bass said. Ms. Mhaisalkar was able to give direct evidence that she made her notes at the time of the statement. The Union was able to cross-examine Ms. Mhaisalkar and Mr. MacKay on their recollection and on the accuracy of their notes. I would note that given the circumstances and the ten years which had passed, contemporaneous notes may well be more reliable than any independent recollection of the events. In any event, there is no unfairness to the Union as Ms. Mhaisalkar and Mr. MacKay both were available for and subject to cross-examination.

47The Union cites Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Marshall), 2013 CarswellOnt 6313, [2013] O.G.S.B.A. No. 78, 114 C.L.A.S. 269, 232 L.A.C. (4th) 181. In that case, Arbitrator Abramsky considered the “flexible approach” to the receipt of hearsay evidence articulated by the Supreme Court of Canada in R.v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.), pursuant to which hearsay evidence may be admitted provided that two general requirements are met: necessity and reliability. The Union relies upon para. 19 of Marshall in which Arbitrator Abramsky held in the case before her that in the absence of evidence of efforts by the employer to locate necessary witnesses (all of whom were former inmates) and determine their willingness to testify, the test of necessity had not been met. The Union refers to Iyamu at para. 23 and Toronto Transit Commission v. A.T.U., Local 113, 2005 CanLII 94220 (ON LA), 2005 CarswellOnt 8287, [2005] O.L.A.A. No. 743, 145 L.A.C. (4th) 139, 83 C.L.A.S. 385 (Springate) at para. 47, as instances of further application of this principle. The Union also relies upon para. 20 of Marshall in which Arbitrator Abramsky held that on the balance of probabilities she was not satisfied that oral and written statements made by the former inmates were sufficiently reliable to be relied upon. The Union argues that the Employer has failed to provide any explanation for its failure to call Mr. Bass or Mr. Siple and that the notes made by Ms. Mhaisalkar and Mr. MacKay of statements made by Mr. Bass are hearsay and unreliable.

48I disagree. The fact in dispute is whether Mr. Bass made certain statements. As others were present when he made those statements, there was no requirement to call him specifically. Both Ms. Mhaisalkar and Mr. MacKay were present when the alleged statements were made and made contemporaneous notes. Neither their oral evidence nor their notes constituted hearsay.

49I turn now to review the evidence with respect to what was said during the 2014 negotiations. Mr. Elphick, Ms. Mhaisalkar and Mr. MacKay all took notes on their respective computers of what was said during the relevant bargaining sessions. They all used different notations to refer to Ms. Hamilton and Mr. Bass in their notes. I have reproduced portions of their notes below. To simplify matters, I have substituted “RH” and “BB” for their respective notations when reproducing their notes. Apart from that, I have reproduced their notes as typed without changes or corrections.

50There is no dispute that going into the 2014 negotiations, upon conversion to permanent status a fixed-term employee received no credit for any weeks in which he or she had worked less than the full-time equivalent hours for the week. For example, if the full-time equivalent was 40 hours / week, the employee would receive no credit for weeks in which they worked only 39 or even 39.5 hours.

51On November 20, 2014, the Union first tabled its proposals for the renewal collective agreement. The Union’s proposals at that time were stated at a high level. With respect to Article 18.1, the Union’s proposal was:

Amend Article 18.1 to delete “actual number of full-time weeks” with “total of number of hours worked”.

Mr. MacKay testified that he understood this proposal to be that continuous service upon conversion to permanent status would be based on total number of hours worked for all fixed-term employees.

52On December 11, 2014, the Union tabled its fourth set of proposals (referred to as “U4”). U4 contained specific language for a new second paragraph to clause (b). In particular the Union proposed adding the following:

Notwithstanding, effective January 1, 2015, for Fixed Term employees covered under Article 31A, from the date established by adding all straight-time hours worked, based upon 1,725.5 straight-time hours or 1,904 straight-time hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate. Such seniority may be used by such an employee for the purpose of conversions, rollovers, competitions, layoffs, and transfers, as provided in the Collective Agreement;

53Notably, this initial formulation of the Union’s proposal did not use the term “full-time fixed-term” to describe the employees to which it applied. Rather, it adopted by reference the test contained in Article 31A. In the 2012-14 collective agreement, Article 31A contained provisions applicable to fixed-term employees other than seasonal, student and GO Temp employees. Article 31A.17.1 provided that notwithstanding Article 18.1(b), “fixed-term” employees were entitled to have their service counted towards the accumulation of seniority on the basis of hours worked for certain purposes. It read:

31A.17.1 Notwithstanding Article 18.1(b), a fixed-term employee shall be entitled to have their service counted towards the accumulation of seniority on the same basis under Article 18.1 and Article 18.4 before he or she is appointed to the Regular Service for the sole purpose of any determination made by the Employer under Article 6.3 (Posting and Filling of Vacancies or New Positions), if applicable. For this specified purpose, fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority based upon one thousand seven hundred and twenty-five and a half (1,725.50) straight time hours or one thousand nine hundred and four (1,904) hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate.

In the result, as Mr. Elphick conceded in cross-examination, the Union’s U4 proposal with respect to clause (b) was not restricted to “full-time fixed-term” employees, but rather would have applied to all “fixed-term” employees. Further, it would have extended the purposes for which the seniority calculated under clause (b) would apply.

54The Employer responded to U4 on December 12, 2014 with its proposal “E5”. In E5, the Employer simply rejected the Union’s proposal with respect to a new second paragraph to clause (b) without providing a counter-proposal. Mr. Elphick’s copy of E5 contains the annotation “ER REJECTS CALCULATION LANGUAGE (WILL USE A 31.7)” Mr. Elphick testified his note should have referred to A31.17. He was asked to explain the note. He testified that A31.17 provided for the calculation of seniority of fixed-term employees based on hours worked for the purpose of posting and filling of vacancies. The Union’s proposal attempted to extend the application of this calculation of seniority to conversions, rollovers, competitions, layoffs, and transfers. He testified the Employer was rejecting this extension of the calculation of seniority in A31.17 to these other matters.

55While I accept that this was Mr. Elphick’s understanding as to why the Employer rejected the Union’s U4 proposal with respect to the second paragraph of clause (b), there is no evidence that this understanding was discussed at the bargaining table or shared by the Employer. Further, I note that in cross-examination Mr. Elphick conceded that the Employer’s E5 meant that the Employer was rejecting the Union’s proposal for calculation of continuous service for all fixed-term employees on the basis of hours worked.

56The Union provided its next set of proposals on December 15, 2014 (referred to as“U6”). In U6, it resubmitted its proposal for a new, second paragraph to clause (b) without alteration. Mr. Elphick testified with respect to notes he made of statements made by Ms. Hamilton at the time the Union’s proposal for a new, second paragraph to clause (b) was resubmitted. He testified that she stated the Union’s proposal was with respect to how seniority was to be used and calculated. More specifically, he testified that Ms. Hamilton stated the calculation was to be based on hours, not weeks. Mr. Elphick also testified that the Union’s intention was to move away from hours in a full week to the number of hours an FXT worked. He did not testify that this intention was communicated to the Employer.

57The next document provided by the parties was the Employer’s proposal of December 16, 2014 (“E8”). Once again the Employer rejected the Union’s proposal, stating in E8: “The Employer is opposed to OPSEU’s proposal on the changes to Article 18(b) [sic]”. In cross-examination, Mr. Elphick conceded that the Employer’s E8 meant that Employer was again rejecting the Union’s proposal for calculation of continuous service for all FXT on the basis of hours worked.

58On December 17, 2014, the Union tabled its “U8” proposals. In U8, the Union resubmitted its proposal for a new second paragraph to clause (b), but struck the last sentence of the original proposal:

Notwithstanding, effective January 1, 2015, for Fixed Term employees covered under Article 31A, from the date established by adding all straight-time hours worked, based upon 1,725.5 straight-time hours or 1,904 straight-time hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate. ~~Such seniority my be used by such an employee for the purpose of conversions, rollovers, competitions, layoffs, and transfers, as provided in the Collective Agreement~~;

59Mr. Elphick testified that the Union wanted to show movement, so it struck the language in its proposal with respect to the broader application of the service calculation in its clause (b), but maintained its proposal to change the manner in which service was calculated. Mr. Elphick did not testify as to any discussion between the parties with respect to the Union’s U8 proposal on clause (b). He testified that while he had searched he was unable to find his notes, if any, in relation to that negotiating session.

60Ms. Mhaisalkar’s notes in relation to U8 were as follows:

RH- That gets us to article 18.1(b)

Amended our proposal to dleete references to how FXT seniority can be used. But stillr esubmitting ifrst part, here is problem- full time fxt that work irregular hours. One week is 40 hours [sic 30 hours], one is 50 hours. None is OT because it's flex time. When regular service, all those weeks that are less than 40 hours a week is taken out, even though when averaged the time, they are working more.

Still resbumitting 18.1 (b). Trying to cover that off. All regular hours worked will be counted.

Ms. Mhaisalkar testified that Ms. Hamilton was stating that the Union was withdrawing part of its proposal for a new second paragraph to clause (b), but was resubmitting the other part. Ms. Hamilton explained by providing one reason as to why the Union was doing so. Ms. Hamilton noted there could be a fixed-term employee who worked 30 hours in one week (Ms. Mhaisalkar explained that the reference in her notes to 40 hours must be a typo) and 50 non-overtime hours in the next week because of flex time, and the employee would not get credit under the first paragraph of clause (b) for one week even though on average the employee worked 40 hours per week over the two weeks. Ms. Hamilton stated that the Union was resubmitting the first part of its proposed new second paragraph because the Union wanted all regular hours to be counted for the purposes of the continuous service calculation. Ms. Mhaisalkar’s notes then continue:

BB- that is the one issue we are trying to address?

RH- yes one issue we are trying to address

BB- ok we will look at that.

61Mr. MacKay’s notes in relation to the discussion with respect to U8, clause (b) are as follows:

RH: We have created a sign-off document...passing that around…

first proposal from your E8...we are agreed to that...bottom of page one...has withdrawn on successor rights and will not being moving forward on that...top of page two...Union has withdrawn it's proposal on surplussing...Article 18.1 (b)...eliminated the last sentence on how it is used...but are re-submitting on how it is calculated...problem is...we have full time FXT who work flex hours...one week they may work 30 but another they may work 50...but when they become regular full-time...all those weeks they worked less than 30 weeks are taken out...even though when you avg. them out they're taken out from the calculation...so that is why we are re-sbumitting our 18.1 (b) to ensure we cover that off...so that all regular hours worked are counted...that's the issue we're trying to address.

BB: I think we understand that

62Notably, the example used by the Union in discussing U8 with the Employer to illustrate the problem which it was attempting to address related to full-time fixed-term employees, specifically full-time fixed-term employees working on compressed work week arrangements.

63Mr. MacKay testified that while the Employer had previously understood that the Union was seeking credit based on total number of hours worked for all fixed-term employees, as a result of this exchange the Employer understood that the Union was focused only on full-time fixed-term employees. From the Employer’s perspective, this amounted to a major change. There is no evidence that the Employer shared this understanding with the Union.

64On December 18 2014, the Employer tabled its “E10” proposals. In E10, the Employer responded to the Union’s proposal for a new second paragraph to clause (b) by proposing different language:

For service accumulated after [DATE OF RATIFICATION], where full-time, fixed-term employees do not get fifty-two (52) weeks’ credit in a calendar year in accordance wit the above [i.e. the first paragraph], but work 1725.5 straight-time hours or 1,904 straight-time hours, as appropriate, service accumulated under the above will be adjusted to reflect fifty-two (52) weeks’ service instead of the number of full-time weeks calculated above;

65The Employer’s E10 proposal required a “full-time, fixed-term” employee to “work” the same number of hours as would constitute the full-time hours of a full-time permanent employee. No allowance was made for the fact that a full-time permanent employee does not actually work full-time hours in each week, for example in weeks in which there are statutory holidays. Further, E10 gave no credit for years in which a fixed-term employee did not work the required number of hours.

66Mr. MacKay testified that in E10, the Employer was attempting to address the issue of full-time fixed-term employees on compressed work week arrangements not getting credit under the first paragraph of clause (b). However, he had no recollection of the discussion with the Union at the bargaining table in relation to the E10 clause (b) proposal.

67In cross-examination Mr. Elphick conceded that under the Employer’s E10 only full-time, fixed-term employees would get credit.

68On December 19, 2014, the Union responded to the Employer’s E10 with its U10 proposals. In U10, the Union resubmitted its U8 proposal with respect to a second paragraph of clause (b). The parties then had a discussion about E10 and U10.

69Mr. Elphick’s notes of the U10 discussion read as follows:

RH …

18.1(b) – we need to have a conversation about ER proposal – they either get a year seniority or they get nothing at all. If an FXT takes a few weeks vacation – that is unpaid time – thus no seniority. But they may have worked FTE for 50 weeks. Since they do not work the full year, they would get nothing. We need to be careful on the wording.

BB – the difference, we are talking about full-time FXT. That was intention was that it would apply to all FXT. Simply earn seniority for every hour worked. ER will caucus on natural CA leaves that don’t impact seniority calculation.

[Emphasis supplied.]

70In his evidence-in-chief, Mr. Elphick stated he recalled those statements being made. In cross-examination Mr. Elphick maintained that Mr. Bass said the bolded words. When it was put to him that interpretation was not consistent with the language in the Employer’s E10, Mr. Elphick stated: “in my view, this was an acknowledgment that the language proposed was not the intention of the Employer”. When it was put to him this would be a complete reversal of the position which the Employer had taken during negotiations to that point, he maintained his position stating parties change their positions all the time in collective bargaining.

71While, as noted, Ms. Hamilton did not have specific recollection of most of the details of the 2014 negotiations, it bears noting that Mr. Elphick’s notes with respect to the parties discussion of U10 were put to her in chief. While testifying in her experience Mr. Elphick’s notes were accurate, she also testified she did not recall Mr. Bass making the statement attributed to him in Mr. Elphick’s notes with respect to the parties discussion of U10, clause (b).

72Ms. Mhaisalkar’s notes with respect to the U10 session read as follows:

Union tables U10 10:40 AM

18.1 (b)- resubmittred but do need to have convo about proposal- your language reads all or nothing, either get year's senority or none at all. We need some element of proration- e.g. fxt takes couple weeks of vacation- unpaid time, no seniority acrrued, but may have worked full time hours the rest of year, so actually worse off than your language. Close on this, but need to be careful

Bob- good point, let us consider. Take into account, unpaid...difference, another big difference...good point. We are talking about full time fxt. You didn't use word full time fxt but you didn't use

that...intend>

Ruth- all fxt

Bob- but then narrowed?

Ruth- right

Bob- will cacus and discuss natural CA leaves that are entitlements.

Top of page 2- made a counter- 20.3.3- heard your point. HR Contact for further assistance/feedback.

[Emphasis supplied.]

73Mr. MacKay’s notes with respect to discussions of clause (b) in the U10 session read as follows:

RH: … 18.1 (b)...resubmitted our language...the way that your language reads...it's all or nothing...we need some element of pro-ration...in your language because they have less than a

year...they're worst off...i think we're close on this...we just need to be very careful…

BB: Let us take into account the unpaid, but the natural time accruing from the collective agreement...we may be able to address that…

We're talking about full-time FXT...is that your intention?

RH: Yes…

BB: I think we are talking about...but that's your intent...we will caucus on your point about natural collective agreement leaves…

[Emphasis supplied.]

74In summary:

(i) Mr. Elphick’s notes record Ms. Hamilton as referring to “an FXT”. Mr. Bass responded by stating: “we are talking about full-time FXT. That was intention was that it would apply to all FXT”. The Union argues that in making this statement, Mr. Bass was indicating that the Employer’s intention was that the phrase “full-time FXT” would encompass “all FXT”.

(ii) Ms. Mhaisalkar’s notes similarly record Ms. Hamilton as referring to “FXT”. The following exchange is then recorded:

We are talking about full time fxt. You didn't use word full time fxt but you didn't use

that...intend>

Ruth- all fxt

Bob- but then narrowed?

Ruth- right

The Union notes that the word “narrowed” does not appear in either Mr. Elphick’s notes or Mr. MacKay’s notes. It argues that even if Mr. Bass used this term it is not clear what he intended by it. It argues that Mr. Bass should have been called as a witness to explain.

(iii) Mr. MacKay’s notes record Ms. Hamilton as discussing the Employer’s E10, but do not record that she used the term “an FXT” or “FXT”. Mr. Bass responded by stating “We're talking about full-time FXT...is that your intention?”, to which Ms. Hamilton responded “yes”.

75As discussed above, Mr. Bass’s intention in making a given statement is irrelevant. The issue is whether the discussion of U10/E10 gave rise to a shared understanding that “full-time FXT” means “all FXT”. Shared understandings may form part of the context within which the language agreed upon by the parties may be interpreted. Statements made during negotiations may be evidence of shared understanding. Whether those statements establish a shared understanding is a question of fact. Even with a complete and accurate record of what was said, it is possible that parties may have reasonable, but different, understandings of the meaning of what was said. In this case, as in most negotiations, there is no such record. Rather there are several sets of contemporaneous notes which are incomplete and somewhat contradictory. Based on the notes, it appears that Mr. Elphick understood Mr. Bass to have said that the term “full-time FXT” meant all FXT. This is inconsistent with the plain and literal meaning of the words, but consistent with, and perhaps shaped by, Mr. Elphick’s understanding of the interpretation of those words in Scott (an understanding which, as discussed above, is incorrect). In any event, the notes of Ms. Mhaisalkar and Mr. MacKay do not reflect a similar understanding. In my view, consideration of the notes of Mr. Elphick, Ms. Mhaisalkar and Mr. MacKay with respect to the U10 discussion does not establish the parties had a shared understanding that “full-time FXT” means “all FXT”.

76On December 19, 2014, the Employer responded with its proposal E12:

For service accumulated after [DATE OF RATIFICATION], where full-time, fixed-term employees do not get fifty-two (52) weeks’ credit in a calendar year in accordance with the above [i.e. the first paragraph], but work 1,653 straight-time hours or 1,824 straight-time hours, as appropriate, service accumulated under the above will be adjusted to reflect fifty-two (52) weeks’ service instead of the number of full-time weeks calculated above;

The Employer’s E12 proposal continued to require a “full-time, fixed-term” employee to “work” a certain number of hours in a year to get credit for fifty-two weeks of service. The reduction of the hours from “1725.5 straight-time hours or 1,904 straight-time hours, as appropriate,” to “1,653 straight-time hours or 1,824 straight-time hours, as appropriate,” was an attempt to address the fact that full-time permanent employees are entitled to statutory holidays on which they do not necessarily actually work. Mr. MacKay’s notes and his recollection of the discussion between the parties with respect to E12 was that it was focused on whether the numbers were appropriate given that full-time permanent employees also take vacation and the amount of that vacation may vary. There are references in Mr. MacKay’s notes to “full-time”. There are no references to fixed-term employees who are not full-time.

77In cross-examination, Mr. Elphick conceded that despite the discussion which the parties had with respect to E10 following the tabling of the Union’s U10, the Employer’s E12 proposal for a second paragraph to clause (b) continued to limit its application to “full-time, fixed-term” employees. In my view, it is difficult to see why the Employer would have maintained this language if Mr. Bass had indicated during the earlier discussion that the Employer’s intention was that the new paragraph apply to all fixed-term employees, not only full-time, fixed-term employees.

78On December 20, 2014, the Union responded with its proposal U12. U12 contained the language to which the parties ultimately agreed with respect to a second paragraph of clause (b). The proposal read:

For service accumulated after [DATE OF RATIFICATION], full-time fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority, based upon 1725.5 straight-time hours or 1,904 straight-time hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate;

79This proposal removed the comma between “full-time” and “fixed-term” contained in the Employer’s E12. It discarded the requirement that employees “work” a certain number of hours, and substituted the idea that credit would be “based” upon the full-time hours of a permanent employee. It also introduced the idea of credit on a pro rata basis.

80Mr. Elphick’s notes with respect to presentation of U12 read as follows:

Ruth Hamilton, U12 provided at 10:09am.

Only outstanding issue was 18.1.b

18.1(b) – proration – new language submitted – had a problem with putting actual 52 weeks in there. Could be other weeks. Went back and checked the calculation – and the history – of the 1725, etc. Yes it did take into count the 12 statutory holiday and 10 days of vacation.

BB – getting down to some pretty narrow disputes. Quick turn around.

Adjourn: 10:11am

Resume: 11:27am

81Mr. Elphick testified at some length about the Union’s understanding of the meaning of its U12 proposal for a second paragraph to clause (b). He testified that in the Union caucus room there was discussion about wanting to use the term “full-time fixed-term” in the second paragraph of clause (b), without a comma between “full-time” and “fixed-term”, because that would mirror the language in the first paragraph. In the Union’s view, that language had been interpreted within the context of the first paragraph to mean all “fixed-term” employees.

82For the reasons stated above, I disagree that the first paragraph of clause (b) was interpreted in that manner. But more significantly for present purposes, Mr. Elphick did not suggest that the Union shared its understanding with the Employer when it presented U12 during the 2014 negotiations. Rather, while acknowledging it is not reflected in his notes, Mr. Elphick testified that in presenting U12 to the Employer, Ms. Hamilton said that the Union wanted to preserve the history of interpretation of the term “full-time fixed-term employees” in clause (b) and how it had been applied to fixed-term” employees. Mr. Elphick testified what he took from that was that “it was not restricted to full-time fixed-term employees, but applied to irregular or on call FXT as they received credit for service under the pre-existing language”. Again, there is no evidence that Mr. Elphick’s understanding of the meaning of Ms. Hamilton’s statement was shared with the Employer during the 2014 negotiations.

83Ms. Mhaisalkar’s notes with respect to the presentation of U12 read as follows:

Union Tables U12 10:11 AM

Only outstanding issue- 18.1 (b)- U12, made is clear apply to full time, fxt. Incorp'd pro-ration. Repeat what we said earlier this morning, problem with putting in catual 52 weeks in there. May nbot be 52 weeks, could be other weeks. Went back and check calc- FYI, look back at history, 1725 and 1904- yes did take into account…

BB- yes Matt went back and check too.

84Ms. Mhaisalkar testified that she believed Ms. Hamilton was discussing the U12 proposal with respect to clause (b), including making it clear that it applies to full-time fixed-term. There is no evidence that this interpretation was shared with the Union at the time.

85Mr. MacKay’s notes with respect to the presentation of U12 read as follows:

RH: Only outstanding issue...made it clear that it apple is to full time fixed term and have included the proration...we had a problem with putting the actual 52 weeks in there because it may not be 52 weeks...we did check the history of the 1725.25 and 1904…

BB: We did the same thing...we agree

86Mr. MacKay had no specific recollection of what was said during the U12 negotiating session, but stated his understanding was that the Union’s proposed second paragraph to clause (b) would only apply to full-time fixed-term employees. There is no evidence that this understanding was shared with the Union at the time.

87On December 20, 2014, the Employer responded with its proposal E14. In E14, the Employer recorded its agreement to the Union’s U12 language with respect to a second paragraph of clause (b). There was no further discussion of clause (b) at the bargaining table.

88I note the Employer argues that even if the parties had agreed during the discussion of E10/U10 that the new paragraph would apply to all fixed-term employees, that was at best a tentative agreement, and not one which was ultimately reflected in the agreement which was ultimately reached. Accordingly, the Employer argues, the Union failed to make out a prima facie case so that no adverse inference should be drawn from its failure to call Mr. Bass as a witness: Mike Dwyer v Mark II Innovations Ltd., 2006 CanLII 9406 (ON CA) at para. 4; Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2023 CanLII 73086 (ON LA) (Stout). Given the view I take of this matter, I need not address that argument further.

89In cross-examination Mr. Elphick conceded that prior to E14, the Employer had rejected the idea that credit on the basis of prorated hours would be extended to all fixed-term employees. He also conceded that there was nothing in his notes to suggest that the Union made it clear to the Employer that in its view the elimination of the comma between “full-time” and “fixed-term” in the second paragraph would have the effect of granting credit to all fixed-term employees on the basis that it mirrored the language used in the first paragraph of clause (b).

90On October 9, 2015, the Union published Issue 28 of “Table Talk Update” for distribution to bargaining unit members. In Issue 28, the Union stated it was laying out in “considerable detail all of the new provisions in the tentative agreement”. The amendment to clause (b) was described as follows:

SENIORITY (LENGTH OF CONTINUOUS SERVICE)

Amend Article 18

Following service ratification, full-time fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority based upon 1725.5 straight-time hours or 1904 straight-time hours, as appropriate, counting as equivalent to one year’s service or pro-rated to the equivalent of less than one year, as appropriate[.]
Previously, calculations were completed by adding full-time weeks of work during full-time employment back to the first break in service of greater than 13 weeks.
This means every regular hour of work is counted towards the accumulation of seniority, rather than only full-time weeks of work counting.

This document refers to changes in the calculation of the continuous service date for “full-time fixed-term employees”. It does not explain to the members that, in the Union’s view, this meant the new calculation applied to all fixed-term employees without qualification. I note that the same document uses the term “fixed-term employees” without the phrase “full-time”, in describing amendments to Article 31A.7.

91In her evidence-in-chief, Ms. Hamilton was taken to the above section of Issue 28 and asked if it jogged her memory. She responded it did, but not in relation to a specific conversation or specific points of discussion at the table or in the Union’s caucus room. Rather, she testified, what jogged her memory was the last bullet where it stated “every hour of work counts”. She testified that was “the whole point” of the Union’s proposals on this issue.

92The 2015-2017 collective agreement was ratified on October 30, 2015. That date was inserted into the second paragraph of clause (b).

93Mr. Elphick testified that the Union understood that the first paragraph of clause (b) would apply to the calculation of the continuous service date for all fixed-term employees in relation to service up to October 30, 2015 and the second paragraph would apply to the calculation of the continuous service date of all fixed-term employees in relation to service from October 30, 2015 forward. As is apparent from the above review of the evidence, this understanding was not shared with the Employer during the 2014 bargaining.

94Mr. Elphick testified that getting recognition for hours worked by fixed-term employees was a major concern for the Union during the 2014 negotiations and the intention of its proposal was to get credit for those hours. Ms. Hamilton testified that the “whole point” of the Union’s proposal was to have all hours counted.

95It is true that on the Union’s interpretation, all hours would count for all fixed-term employees. But it is important to note that on the Employer’s interpretation, all hours count for all full-time fixed-term employees. That is, the Union achieved its objective with respect to some, but not all, fixed-term employees. On the evidence reviewed above, the Employer understood that the Union’s initial objective was to obtain recognition of all hours for all fixed-term employees. The Employer consistently simply refused, without a responding offer, proposals from the Union which referred, by reference to another article in the collective agreement, to “fixed-term” employees without the qualifier “full-time”. It was only when the Employer understood that the Union had narrowed its objective to obtaining recognition of hours for full-time fixed-term employees that the Employer tabled a responding offer (E10). That offer expressly referenced “full-time, fixed-term” employees. The parties ultimately agreed upon language which removed the comma and referred to “full-time fixed-term” employees. While the evidence suggests that the parties did not have a shared understanding of what that phrase meant, the Employer’s interpretation was consistent with its understanding of the Union’s revised objectives.

96I note the Union argues that it would be a reviewable error of law to place undue reliance upon its earlier proposals during the 2014 negotiations in relation to clause (b) as an aide to interpretation of the language upon which the parties ultimately agreed. It relies on Unifor Local 200 v. Nemak of Canada Corp., 2020 ONSC 5944, 2020 CarswellOnt 14219, 320 L.A.C. (4th) 52, 323 A.C.W.S. (3d) 414. In that decision, the Divisional Court quashed an arbitration award in which the arbitrator held that a difference between an earlier proposal of the union on an issue and the language ultimately agreed upon by the parties “must be given meaning” when interpreting the latter. The Court stated:

…. Proposed terms are not prior versions of a collective agreement and the parties are not legislative draftspersons. The Arbitrator was wrong as a matter of law to find that the differences between one draft and the final version of the contract "must be given meaning". As a matter of fact, the Arbitrator was entitled to weigh the different drafts and final version in the entire context of the negotiations.

24 Modern principles of contractual interpretation require a tribunal to construe the agreement in context, and this requirement may allow the tribunal to consider the course of negotiations, among other things. But a contextual approach in this case cannot be reduced to the kind of close textual analysis of a contractual term based one [sic] prior draft of that term: the context includes the entire context, of which the Union's proposal was but a part.

97I am mindful of this caution. I have not proceeded on the basis that changes from the Union’s earlier proposals with respect to the second paragraph of clause (b) must be given meaning when interpreting the language to which the parties ultimately agreed. Rather, I have considered those changes within the entire context of the parties’ negotiations on this issue.

98For the foregoing reasons, having regard to all of the evidence, I am not satisfied that the Union has established that the parties had a shared understanding that in the second paragraph of clause (b) the term “full-time fixed-term” employees meant all “fixed-term” employees.

Disposition

99For all of the foregoing reasons the grievances are dismissed.

Dated at Toronto, Ontario this 18th day of November 2025.

Footnotes

For the 2015-17 term, the Central Working Conditions and Employee Benefits Collective Agreement contained terms applicable to both the Unified Bargaining Unit Collective Agreement and the Correctional Bargaining Unit Collective Agreement. Hereafter, I will refer to the Central Working Conditions and Employee Benefits Collective Agreement as the "Collective Agreement”.

Footnotes

For the 2015-17 term, the Central Working Conditions and Employee Benefits Collective Agreement contained terms applicable to both the Unified Bargaining Unit Collective Agreement and the Correctional Bargaining Unit Collective Agreement. Hereafter, I will refer to the Central Working Conditions and Employee Benefits Collective Agreement as the "Collective Agreement”.

Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2025 CanLII 129751

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union

Footnotes

Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2025 CanLII 129751

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union

Footnotes