GSB# 2020-0845

UNION# 2020-0999-0001

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 the Solicitor General)

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

December 6, 2022; October 25, November 24, 2023; March 8, and October 3, 2024

Decision

1This decision deals with the Union’s right to have input into the training of recruit/trainees who may become Correctional Officers in the Province of Ontario’s correctional institutions. It is agreed by the parties, being the Ontario Public Service Employees Union, hereafter the “Union”, and the Ministry of the Solicitor General, hereafter the “Ministry”, the “Employer”, or “SOLGEN”, that the recruit/trainees are not employees of the Ministry, nor are they members of the Union bargaining unit. The Union was clear in its submissions that it was not seeking representational rights for them.

2The grievance is dated January 28, 2020; it states the basis of the grievance as follows:

STATEMENT OF GRIEVANCE

The Employer is in violation of the Collective Agreement including but not limited to Article 1, Appendix Cor6 and Appendix Cor14, the Ontario Labour Relations Act;

On January 13, 2020, the Employer announced in a press release without notice, consultation, or opportunity to review, the Employer's redesigned Corrections Foundational Training program for Correctional Officers.

3For the reasons set out below the grievance is denied.

4The management’s rights clause of this collective agreement reserves the right to management “to manage the business and direct the workforce including. training.”

5There are appendices to the collective agreement including the Appendix COR6, which mandates that the Training and Development subcommittees of the Ministry Employee Relations Committee (MERC) would continue to examine training and development issues. The mandate of these subcommittees is set out in Appendix COR6 as follows:

The parties agree that the-joint Training and Development subcommittees of the MERCs will continue to examine issues related to training and development as they apply to the Ministry.

The mandate of the subcommittees will include:

• supporting professionalism through its review of the training, advice and tools that are currently being used;

• reviewing information regarding training from other jurisdictions across Canada;

• recommending improvements through the reviews of current training and training models from other jurisdictions;

• reviewing the structure or development of internal training programs and special project training assignments;

• investigating professional developmental opportunities.

• supporting Peer Mentorship Committees

6The Union submitted that the mandate is not limited to the training and development of bargaining unit members. It said that the mandate applies beyond the boundaries of the bargaining unit.

7The Union submits that the collective agreement sets out the obligations of the Employer that inure for the benefit of the members of the bargaining unit and that the rights at issue here are the rights of the members of the bargaining unit. The issue was said to be whether the recruits’ training programme should have been reviewed by the subcommittee mandated in the appendices of the collective agreement. Failure to have consulted on the training of persons who would, in the future, possibly become members of the bargaining unit was thereby said to be a failure by the Employer to discharge its obligations under the collective agreement.

8The second appendix which is raised by this grievance is COR14, which was said to deal with the subcommittee’s mandate as it relates to Occupational Stress Injuries (OSI). The Union submitted that the two key features are set out in paragraphs 2 and 3 as follows:

The parties agree the MCSCS PJHSC and the MCYS Divisional H&SC will review the trends of Occupational Stress and Work Place Violence.

The mandate will include:

2. Recommend a jointly developed strategic plan for staff training to provide the training to meet the physical and psychological demands on Correctional Bargaining Unit employees.

3. The development and making of joint recommendations on training to recognize and address the signs of depression, anxiety, addictions and occupational stress injuries related to violent and traumatic incidents that have occurred in the operational setting. Further, the committee will be given an opportunity to review the training content and provide feedback prior to implementation.

(emphasis added)

9Accordingly, the Union submitted that COR14 speaks to the scope given to the Provincial Joint Health and Safety Committee, to participate in the development of a strategic plan for training, an opportunity to review the training content and, third, to provide feedback prior to implementation.

10There can be no question but that recognizing and addressing “the signs of depression, anxiety, addictions and occupational stress injuries related to violent and traumatic incidents that have occurred in the operational setting", [paragraph 3 of COR14] are of the first order of importance. It is also evident that COR6 and COR14 give the Sub-committees a mandate to be involved in the design and implementation of training regarding these issues. The question here is whether the Sub-committee’s mandate to be so involved includes the training of recruits who are neither employees of the Ministry, nor members of the bargaining unit. The Employer submits that to ask the question is to answer it. It says that there is no foundation for the committee to have such a role.

11To answer the question requires further elucidation of the structural detail of the collective agreement’s articles and appendices.

12For clarity’s sake, I note that it was COR20 that established two Ministry-level Joint Health and Safety Committees, one for the Ministry of Community Services (MCSC) and one for the Ministry of Children and Youth Services (MCYS). It is these two committees that are referred to by the acronyms “MCSC PJHSC” and “MCYS Divisional HUSC” in the first paragraph of COR14 set out above.

13The organizational structure of Ontario’s Ministries is quite malleable, and although the style of cause of this decision and the nomenclature for the Employer is currently SOLGEN, it was previously known as CSCS. Suffice it to say that here I am dealing with the Occupational Stress Injuries Sub-committee of the Joint Health and Safety Committee, Correctional Services Division of CSCS, as it relates to the training given to Correctional Officers.

14As I described above, the question before me is whether the Sub-committee has any role in developing and implementing the training of recruits who are not bargaining unit members. The parties here agree that these recruits attend training with no guarantee of being hired. They are not yet employees. Further, paragraph 2 of COR14 speaks directly to the question of to whom the Appendix applies; it applies to “Correctional Bargaining Unit employees”.

15The Union noted in its submissions that the scope of the bargaining unit is set out in article 1 of the collective agreement. The scope clause, taken from the collective agreement between OPSEU and the Crown in effect from January 1, 2015 to December 31, 2017 reads as follows:

The Ontario Public Service Employees Union (OPSEU) is recognized as the exclusive bargaining agent for a bargaining unit consisting of all employees employed within the two bargaining units (Unified and Correctional) which are the successor units to the six bargaining units as described by the Lieutenant Governor in Council in OIC 243/94 dated February 3, 1994, in the Tripartite Agreement between the Crown, OPSEU and AMAPCEO dated April 21, 1995, plus those employees included in the six bargaining units by the agreement of the Crown and OPSEU from February 3, 1994 to December 31, 2008.

16It is not necessary here to closely draw the boundaries of the correctional bargaining unit. It is sufficient to note that, even in its description, it is very distinct. In the instant matter that distinction is agreed to exclude the recruits for whom the training curriculum was developed without input from Union representatives of the Sub-committee. The Union submitted that it did not assert any right to represent the recruits. Rather, it asserts that its standing to participate in the development and implementation of training of recruits is because of their status as inchoate, undeveloped correctional officers. In a sense, they are correctional officers once removed. Because they will, or more accurately, may, become correctional officers, the Union says, in essence, that it has a defensible interest in their development. Accordingly, it says that it has the right to ensure it contributes to the development of potential correctional officers. Howsoever one analogizes, as an aid to interpretation, the relationship between the recruits and correctional officers, either in family, property or labour relations terms, the recruits are not attached to the conceptual anchor. They are neither related as if by family because the recruits are strangers to the Union. They do not fall within the defined boundaries of what is the purview of the Union, nor does their training and development, or lack thereof, have any impact on the bargaining agent or its members until the recruits meet the condition of being hired. There is no model in which the Union is able to exert any influence in the training and development of recruits unless the intention to give it to them is found in the collective agreement, the only relational document that counts. Given the parties' agreement here that it isn’t found in the scope clause, it must be found elsewhere.

17As set out above, the Union says that COR14 should be broadly interpreted to encompass the training curriculum of recruits, and thereby gather them into the mandate of the Sub-committee. That is said in spite of the clear words of paragraph 2 of COR14 that it relates to “Correctional Bargaining Unit Employees”. Also, when COR14 is taken as a whole, its interest is in trends of Occupational Stress and Workplace Violence as that relates to the correctional facility workplaces operated by the Ministry. It is useful to set out COR14 in its entirely as follows:

Letter of Understanding

Mr. Anastasios Zafiriadis

Senior Negotiator, Corrections Team, OPSEU

I 00 Lesmill Road

North York, Ontario

M3B 3P8

The parties agree the MCSCS PJHSC and the MCYS Divisional H&SC will review the trends of Occupational Stress and Work Place Violence.

The mandate will include:

1. a) Receive and review statistics on levels of violence that have occurred in the workplace. The focus will be to determine any trends in the escalation of serious violent incidents in the Ministries' Adult and Youth facilities and make recommendations. This will include a review of statistics, such as:

• Offender-on-Offender incidents

• Offender-on-Ministry Staff incidents

• Ministry Staff-on-Staff in the work place

• WSIB, EAP, LTIP data, CISM data

The Employer shall provide such statistics to the committee on a semi-annual basis. There will be two reporting periods: I) January 1 - June 30 and 2) July 1 - December 31. Statistics will be provided to the Union within thirty (30) days of each reporting period.

b) The MERC and the MCYS Divisional H&SC or the MCSCS PJH&S, as applicable, will be notified by the Employer as soon as practicable, of any serious assaults on staff, serious staff injuries, credible threats against staff, or other incidents as the parties may agree.

The Local President or Designate will be notified by the Employer as soon as practicable, of any assaults, injuries, threats against staff, or other incidents as the parties may agree.

2. Recommend a jointly developed strategic plan for staff training to provide the training to meet the physical and psychological demands on Correctional Bargaining Unit employees.

3. The development and making of joint recommendations on training to recognize and address the signs of depression, anxiety, addictions and occupational stress injuries related to violent and traumatic incidents that have occurred in the operational setting. Further, the committee will be given an opportunity to review the training content and provide feedback prior to implementation.

4. Jointly identify support programs to treat depression, anxiety, addictions and Post Traumatic Stress Disorders for both short and long term Occupational Stress Injuries.

Yours truly,

Michael Villeneuve

Director, Negotiations and Security Branch

Employee Relations Division

Treasury Board Secretariat

(emphasis added)

18It should be borne in mind that it is COR14 that the Union submits gives it the right to contribute to the development of a strategic plan for recruit training, an opportunity to review the content of recruit training and to provide feedback prior to implementation of recruit training. However, from a simple reading of COR14 it is evident that the mandate being conferred is related to the ongoing needs of the workplace that arise in the workplace. Paragraph 1 adverts to reviewing statistics on levels of violence in the workplace to determine trends, receiving reports of serious assaults on staff etc. Paragraph 2, in context, is a mandate to take the information referred to the Sub-committee pursuant to paragraph 1 and develop training “to meet the physical and psychological demands on Correctional Bargaining Unit Employees”. Paragraph 3 specifically refers to training “related to violent and traumatic incidents that have occurred in the operational setting”.

19The text of COR14 is directed entirely at responding with the training and support of bargaining unit employees to occupational stress injuries that have occurred in the operational setting. In my view, COR 14 does not address what training should be given to recruits who are neither members of the bargaining unit, nor exposed to “violent and traumatic incidents that have occurred in the operational setting". Had the parties intended to give the OSI Sub-committee a mandate to deal with the training of recruits, they would have said so in clear and unequivocal language, which they have not.

20The second branch of the Union’s submissions before me is that the doctrine of estoppel applies.

21The Union’s submission rests on the assertion that the parties had a shared understanding that the intention of the parties to the collective agreement intended that the mandate of the OSI Sub-Committee extended to pre-employment recruits. The Union’s explanation for that conclusion was put into the record of this proceeding through the evidence of Adam Cygler. The Union submitted a “Will Say Statement” from Mr. Cygler that he adopted as his direct examination. Mr. Cygler was a Union representative sitting on the OSI Sub-Committee. In that capacity he was in a position to authenticate and comment upon the minutes of the Sub-committee as well as the various reports and supporting materials upon which the Union relies in its submission that the parties shared the intention that the mandate of the OSI Sub-Committee extended to recruits. Again, for the sake of clarity, the recruits were not yet employees of the Ministry, nor, therefore, were they in the bargaining unit of the Union that Mr. Cygler represented on the OSI Sub-Committee.

22I note that the Employer took the position that some of the documents relied upon, for example various emails, were not adequately proven because the makers thereof were not called to authenticate them. Generally, these documents were part and parcel of the operations of the Ministry regarding the facts-in-issue. In the very least, they are the warp and weft of the fabric of the narrative and are here given only that weight. There was no assertion by the Employer that the Union was misrepresenting the authenticity or accuracy of the documents, just that they had not been proven. Indeed, seemingly, the documents were produced by the Employer to the Union so there is likely a rebuttable presumption that they mean what they say.

23Prior to January 2020, correctional officers’ training was delivered as the Correctional Officer Training and Assessment program (COTA) by Correctional Services Recruitment and Training Centre, a division of the Ministry. The heart of this dispute is that COTA was replaced in January 2020 by the Corrections Foundational Training program (CFT). This new training program was not considered by the OSI Sub-committee; the Union said it should have been. It says that the failure to do so was a breach of COR14. For the reasons set out above, I find that on the plain meaning of COR114, there was no requirement to apply it to recruits who were not in the bargaining unit. However, the Union goes further and asserts that the behaviours of the representatives of the parties to the collective agreement, with respect to the implementation of the CFT generated an estoppel that prevented the Employer from proceeding with the transition from COTA to CFT. Mr. Cygler’s narrative begins with a document called "Recommendations to the Assistant Deputy Minister", which were joint recommendations from the OSI Sub-committee to the Deputy Ministry. That document’s importance was underscored by the fact that it was widely distributed in the Ministry under cover of a Memorandum dated October 1, 2015 that was jointly authored by three Assistant Deputy Ministers. Mr. Cygler says that the Memorandum “confirmed that the OSI Sub-committee was created to carry out the mandate of the PJHSC [Provincial Joint Health and Safety Committee] set out in COR14. The Memo does confirm that the OSI Sub-committee was established by the PJHSC; however, it summarizes the mandate of the OSI Sub-committee in the following terms:

The subcommittee was tasked with providing recommendations to develop a strategic plan for staff training and identify support programs to address the short and long term physical and psychological demands within the workplace.

(emphasis added)

24I find that, on its face, the Memorandum limits the application of the Sub-committee’s mandate to “staff training”. That is, training of employees.

25Having regard to the document attached to the Memo, "Recommendations to the Assistant Deputy Minister", it too, on its face, speaks to “staff training”. The first heading, "Mandate", includes at paragraph three the reference "for staff training" (paragraph 3). The next heading, “Background”, describes COR14 by including the phrase "for staff training".

26The joint recommendations document does include, in Recommendation #3 a reference to Mandatory Training for all recruits as set out in the following:

Education and Training – Mandatory Training for all new recruits; what to expect in a correctional environment (tailored to MCSCS), exposures of trauma, potential individual responses, signs, symptoms, definitions, resources available to employees, annual training for all employees available on-line and in classroom.

27The document includes a section titled Management and Union Recommendations, which starts with a one-line description of the balance of the document: "The following outlines the recommendations and responses". Next follow the joint recommendations, including Recommendation # 3. Then comes the Final Recommendation. On my reading of the document, the Final Recommendation collapses the previous five recommendations into its synopsis. Recommendation # 3 does refer to "Mandatory Training for all new recruits", but it is essential to understand the context, not only the context of that recommendation, but also within the context of the entire document, including the subsequent Final Recommendation:

Recommendation # 3 -Strategic Plan for training to meet physical and psychological demands of job

• The Ministry to take an inclusive approach for all staff and present a clear, proactive and effective framework to support mental health and wellness in the workplace.

Occupational Stress and Injury impacts individuals differently therefore the framework to focus on;

1. Awareness

2. Prevention

3. Education/Training

4. Resources/Referrals

5. Sustainability of Mental Health

• Awareness may include; annual wellness fair, lunch and learn sessions, pamphlets, stigma reduction campaign, and suicide prevention initiatives, published articles and communiques.

• Prevention may include; supportive leadership and peers, education on stigma, a focus on resilience skills training and coping strategies. Outreach programs such as self-help monitoring-triggers/symptoms on-line questionnaire "see how you are doing".

• CISM Program to be reviewed to possibly expand mandate of the current program and to include additional peer on peer support, in order to follow up and provide immediate

responses to reduce long term impacts of traumatic events in the workplace (beyond the 24-72 hours). Alternately a standalone peer on peer support program to support and address employees long term needs (Continuum of support rather than the current one time contact-for employees and family, example a peer would check in and provide support).

• Education and Training-Mandatory Training for all new recruits; what to expect in a correctional environment (tailored to MCSCS), exposures of trauma, potential individual responses, signs, symptoms, definitions, resources available to employees, annual training for all employees available on-line and in classroom.

(emphasis added)

28Recommendation #3 goes on to generally and contextually refer to all staff, and the overall concern with the workplace and on-the-job issues. A fair consideration of the entire text is that it is dealing with employees with a continuing employment relationship with the Ministry.

29The Summary and Overview of Final Recommendation is found at pages 6 and 7. On its face, a fair reading of this is that it nails down that the Recommendations document's overall intention, as drawn from the words used, is that the efforts are directed at staff development “from the point of hire onward”. This clarifies any possible ambiguity in what a "recruit" means as the word is used in Recommendation #3. That is, they are the new recruits who have just been hired, not the non-employees starting basic training:

Summary

Overview of Final Recommendation

The COR 14 group was tasked with providing recommendations as outlined in the collective agreement. In order to provide responses a number of studies, articles and research documents were discussed and reviewed by the committee. Additionally these studies were insightful to provide context into proactive steps correctional services may want to explore.

The committee's recommendations reflect both a short term and long term approach with a focus on Occupational Stress Injuries.

1. It is recommended that MCSCS develop a clear framework in preparing staff from the point of hire and supporting individuals at all levels throughout their career. This would include an effective program focused on timely intervention as it relates to Occupational Stress and Injury.

2. To complete a survey to establish a baseline "pulse" of the organization in order to fill in any gaps in services.

3. Mandatory awareness training with a focus on awareness, resiliency skills, prevention and interventions/resources to support all staff.

4. A review of the current GISM program to explore the possibility of expanding on the current mandate and adding peers. Alternately developing a stand-alone peer on peer (both formal and informal) program to support employees beyond the 24-72 hours that have been exposed to a traumatic incident.

5. Anti-stigma campaign to promote "mental health fitness", raise awareness, and communicate the joint commitment to support employees in corrections.

(emphasis added)

30It is helpful at this juncture to focus on the elements of estoppel. The Union submitted that the Summary in Brown and Beatty, Canadian Labour Arbitration, 5th edition, paragraph 4:20 [footnotes omitted] is apt:

Thus, the essentials of estoppel are: a clear and unequivocal representation, particularly where the representation occurs in the context of bargaining; which may be made by words or conduct; or in some circumstances it may result from silence or acquiescence; intended to be relied on by the party to whom it was directed; although that intention may be inferred from what reasonably should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom.

31The representation that must exist is an unequivocal expression of an intention not to rely upon the strict legalities of the relationship between the parties. Nowhere in the record before me is there an intention, express or implied, that the Employer meant to expand the scope of the collective agreement in any way to capture non-employees who are receiving basic training.

32The Union in its submissions relies on the minutes of the OSI Sub-committee, and other documents, in its search for the roots of an estoppel, as they relate to discussions of recruit basic training. The issue was said to have been first raised at the Sub-committee meeting of meeting of June 19, 2019. The minutes reflect the following discussion:

New Business

1. COTA and PPO Basic Training - Union raised concerns with messaging regarding occupational stress injuries with new recruits. Discussion took place around the mandate of Appendix COR14 specific around the review and feedback of any training content prior to implementation.

Action: Employer co-chair and EWU to follow up with the Training Centre and Modernization Division.

33The minutes of the subsequent meeting continued to raise the Union’s concerns as follows:

October 4, 2019:

5. COTA and PPO Basic Training - Union continues to raise concerns with messaging regarding occupational stress injuries with new recruits. Union identified that there is a disconnect with the processes in training development given the current structure.

Action: Employer is committed to follow up with the Modernization Division and the Correctional Services Recruitment and Training Centre and review the current process.

34Mr. Cygler's evidence does not fundamentally detract from the reflection in the minutes that the Employer's representatives would go and find out what was happening and report back. There is not the representation required to provide the foundation of an estoppel in these aspects of the record. The Union's issue of changes having been made to recruit training without having followed the Union’s view of the Sub-committee’s mandate began coming to a head on November 26, 2019. That day Mr. Cygler forwarded to the Employer a copy of a Union report to the MERC, which was to be submitted the following day. The report was a response to MERC's request for a status update on the OSI Sub-committee’s work. An outstanding issue was noted in the Union report to be “Embedding resilience training into PPO basic training, CO basic training, and ongoing professional development for corrections personnel”. An issue said to be “underway” as described as:

Issues Underway:

• Union has requested information regarding recent re-writes of the basic training for Correctional Officers and Probation and Parole Officers in relation to Occupational Stress Injuries

o Timeline: TBD

o Tasked: Employer to provide information

35The Union report to MERC simply reiterates that the OSI Sub-committee is waiting for the Employers response to what is happening vis-a-vis re-write of the basic training. Mr. Cygler's will-say sets out at paragraph 31 that "The Employer did nothing to contradict or disagree with the report to the MERC Sub-committee Review Committee. Not contradicting nor disagreeing that it was "to provide information" is a far cry from agreeing that the Union could have a say in the curriculum being delivered to non-bargaining unit employees.

36The OSI Sub-committee next met on November 27 and December 10, 2019 where the Union again pressed for information on the changes being made to the recruit training curriculum:

COTA and PPO Basic Training - Union raised concerns that changes are being done to the COTA and PPO Basic Training without the input of this subcommittee (Appendix COR14) as per the Collective Agreement. Union is requesting a copy of the current/proposed curriculum (resilience, occupational stress injury, employee mental health, CISM) for review.

EWU meeting with Correctional Services Recruitment and Training Centre (CSRTC) staff the first week of December 2019 to discuss processes.

Union requests that Modernization Division and CSRTC attend the next OSI meeting to speak to the curriculum.

37Certainly, by December 10, 2019 the Union is clearly asserting to the OSI Sub-committee that the Sub-committee should have input to the basic training curriculum. This is confirmed in paragraph 32 of Mr. Cygler's will-say. The will-say states that, "The Employer undertook to set up a meeting with the Modernization Division and invite them as well as the CSRTC to the next meeting." From this it is clear that the Employer is still only committing to get information to the OSI Sub-committee.

38Before the next meeting took place the Employer issued a Press Release announcing the implementation of a new training program to replace Correctional Officer Training and Assessment (COTA) program. The press release dated January 13, 2020 reads as follows:

Ontario Launches Redesigned Training Program for

Corrections Officers

New curriculum includes focus on mental health training

January 13, 2020 11 :30 A.M.

Hamilton - Ontario is launching its Corrections Foundational Training program today, a redesigned curriculum to educate and prepare the province's incoming correctional officers. This new training will give staff the tools they need to plan and build a career in corrections, as well as meet the needs of a modern correctional system.

Corrections Foundational Training replaces the former Correctional Officer Training and Assessment program and offers an increased focus on key areas such as human rights, mental health, health and safety, and teamwork. The new training program has been redesigned to include more job-specific case studies and scenario-based learning, as well as an emphasis on communication and de-escalation skills. The first group of students will begin the program today and develop skills over the next eight weeks.

"Staff safety and training is very important to me and to our government," said Solicitor General Sylvia Jones. "This course will teach the skills our frontline officers need to succeed in a modern corrections environment."

Staff feedback was integral to the reshaping of the entire program, including its name. The new curriculum also addresses concerns raised about the previous training program by various stakeholders, reports, and coroners' inquests.

Corrections Foundational Training is one part of the government's strategy to ensure frontline officers stay safe on the job and can meet day-to-day demands in the province's institutions.

39At the next meeting of the Sub-committee on February 26, 2020, the minutes record the following discussion:

February 26, 2020

4. COTA and PPO Basic Training - Union awaiting response regarding the set up of a meeting with Modernization Division and CSRTC regarding concerns with the basic training.

Action: Employer to follow up and respond. Rename item to Correctional Foundational Training (CFT) CO and CFT-PPO.

40In essence, the Employer may be ragging the puck over providing the information requested by the Union. If true, this may very well cause the Union concern and upset, but it is not the explicit, or even implicit in its silence, representation necessary to found an estoppel.

41A press release date March 6, 2020 announced that the first group of recruits had graduated from the “New Modernized Training Program”. Clearly, the Employer is proceeding with a revamped basic training curriculum for non-employee, non-bargaining-unit recruits in spite of the Union's view at the Sub-committee that it should have had input.

42The grievance was filed January 28, 2020 following the press release of January 13, 2020 set out above. The Union submitted that the reference in the press release that “Staff feedback was integral to the reshaping of the entire program” supports an inference that the Employer was aware of the COR14 obligation to consult and was an attempt to obfuscate that there had not been feedback. In my view, it does not stand for that proposition at all. "Staff" is not exclusively "Union staff". As part of its case, the Union sought to rely upon various emails and other internal management documents to establish the elements of estoppel. The Employer objected to the admissibility of those documents on the basis that the authors had not been called to testify in order to authenticate the documents. Be that as it may, what the documents do show is that management staff did give feedback on the changes to recruit training. It is a chimera to see the use of the word "Staff" as an intentional obfuscation that somehow stands as evidence of the type of representation that may ground an estoppel.

43The Employer does not dispute that the OSI Sub-committee was not consulted. It says that there was no obligation to consult regarding the training of pre-employment recruits who were also not members of the bargaining unit. Further, the emails at issue are clear that the managers dealing with the updated curriculum are of the view that the collective agreement, being COR14, does not apply to recruit training. There are concerns expressed in the November 27th, 2019, emails by Kelly Michalicka, the Director of the Corrections Learning and Standards Branch, Modernization Division, Ministry of the Solicitor General, “about some of the feedback that we have heard was communicated to the union during the OSI committee meeting that may be incorrect”. Kelly Michalicka's job title seemingly indicates that they are in a senior management position as regards the modernization of standards of learning, which may or not be training. In an email the next day, they also urge Lou Ann Lucier, who is a management member of the OSI Sub-committee, “to ensure that management realizes that the CA [collective agreement] doesn’t apply to COTA – what do you think?” The documents at issue are not clear enough to speak for themselves. Without having heard from the makers of the emails, it is not safe to draw conclusions about what was or was not conveyed to the Union at the OSI Sub-committee meetings. However, from the minutes of those meetings and Mr. Cygler’s will-say, it was the Union’s view that the mandate of the Sub-committee extended to the training of recruits. What is also evident is that the Employer at the Sub-committee had only agreed to provide information.

44The documents by themselves show that there was debate amongst senior management as to how, and even when, to make it clear to the Union that the collective agreement did not apply to the training of recruits (COTA) and to dispel any misapprehension otherwise by the members, both Employer and Union, of the OSI Sub-committee. All this was taking place at the same time that the Union members of the OSI Sub-committee awaited a definitive statement from management on what was transpiring in recruit training. The conclusion that I reach is that there was no definitive position taken by management at the Sub-committee upon which the Union relied to its detriment. Management at the OSI Sub-committee did not, on the record before me, make any statements intending to explicitly, nor implicitly, affect the legal relations with the Union in the form of clearly extending the Sub-committee mandate to include non-employee, non-bargaining-unit persons receiving what came to be known as Foundational Training.

45As set out above, I find that the language of COR14 clearly applies to members of the bargaining unit, and nothing was said to the Union to alter that. In my view there is no estoppel.

46For the reasons set out above, the grievance is dismissed.