[1981] OLRB Rep. February 179
1221-80-M Local Union 1256 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Kel-Gor Ltd., Respondent.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Harold F. Caley and Gerald Lacasse for the applicant; R. A. Werry and A. Pilat for the respondent.
DECISION OF THE BOARD; February 16, 1981
This is the referral to arbitration of a grievance under section 11 2a of The Labour Relations Act.
The respondent is a contractor engaged in the construction of a portion of a petro-chemical refinery for Petrosar in Sarnia. The work in question began in April of 1980 and continues to the present. Under the collective agreement employees are entitled to travel allowance for work performed outside the centre of Sarnia. The city and its immediate boundary area are defined as a "Free Zone" with no travel allowance being payable to employees working on projects within that area. The area immediately outside the Free Zone is called Zone A with a further area, Zone B, outside of it. Travel allowances are paid to employees working on projects in Zone A and zone B. The issue in this grievance is whether the Petrosar project falls within the Free Zone, so that no travel allowance is payable, or whether it falls within Zone A.
The provisions of the collective agreement are as follows: Schedules - Article 11, EBA-OPC Agreement, 1978-1980 Local Union 1256 — Sarnia Transportation and Transfer of Employees
(a) For the purpose of determining the employer's obligation to supply transportation of employees.
Free Zone is defined as the City of Sarnia and Point Edward and up to two miles south of said City Limits (commonly known as the stop light in Corunna at the 10th Concession of Moore and Highway #40) and two miles east of and north easterly of said City Limits (commonly known as Kimball Side Road.) (As illustrated on map.)
Zone A is a defined area east of the St. Clair river south to a point known as Highway #80 and then east to a point known as Highway #21 north on Highway #21 to Junction of Highway #7 and 21, thence north to Lake Huron known as side road #15 of Plympton Township. This area does not include the south side of #80 Highway nor the east side of Highway #21 nor east side of Township Road #15 of Plympton. (As illustrated on map.)
Zone B remainder of Lambton County. (As illustrated on map.)
(d) Transportation Zone A, are as follows: Sept. 6, 1978 — $3.00 per day; May 1, 1979 — $3.50 per day.
Transportation in Zone B, are as follows: Sept. 6, 1978 — $4.75 per day; May 1, 1979 — $5.25 per day.
Except as provided in (a).
. . . [Map omitted] . . .
It is common ground that the entrance to the Petrosar project lays within two miles of the southern city limits of Sarnia. A straight line drawn two miles south of the city limits would intersect the project. It is also common ground, however, that the project is entirely situated south of the 10th Concession. The company maintains that the collective agreement intends the dividing line between the Free Zone and Zone A to be a line exactly two miles south of the city boundary. On that basis it asserts that the project straddles the line and should be viewed as not subject to the payment of travel allowance. As part of its case the company maintains that there is ambiguity in the collective agreement and that the Board should consider extrinsic evidence to interpret Article 11.
The union submits that the intention of Article 11 is that the 10th Concession be the dividing line between the Free Zone and Zone A. It is common ground that the 10th Concession is slightly less than two miles south of the city limits. It maintains that the agreement is not ambiguous, having regard both to the verbal description and the map incorporated in Article 11, and that this is not an appropriate case to have recourse to extrinsic evidence. Alternatively the union argues that since the work in question is in fact performed on a section of the project that is more than two miles south of the city boundary, under the collective agreement travel allowance must be paid for work so performed. Lastly, it submits that if the collective agreement is ambiguous that extrinsic evidence in relation to the history of bargaining between the parties and their past practice support the union's interpretation of the travel allowance provision.
Counsel for the company submits that there is an inherent or latent ambiguity in Article 11 of the collective agreement. He therefore requested leave to call parole evidence both to establish the latent ambiguity and to resolve it in a way consistent with the company's interpretation. The Board allowed both parties to call extrinsic evidence going to the question of a latent ambiguity, while reserving on the ultimate question of whether there was either patent or latent ambiguity in the travel allowance provision of the collective agreement.
The Board is satisfied that this is not an instance of patent ambiguity. A reading of the words of Article 11, including the map, causes no puzzlement or equivocation. A reader would conclude that there is a stop light at the intersection of Highway #40 and the 10th Concession and that it lies two miles south of the city limits, the southern city limits and the 10th Concession being parallel, one would also conclude that the 10th Concession traces a line two miles south of the southern city boundary and that it is the line of demarcation between the Free Zone and Zone A. Nothing on the face of the agreement would cause the reader to think twice or have any doubt about the meaning of Article 11 or how it should be applied. In other words, there is no patent ambiguity in the travel allowance provision.
Is there a latent ambiguity? In what has become the leading authority on this issue the Court in Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. (1968), 1968 CanLII 405 (ON HCJ), 3 D.L.R. (3d) 161 (Ont. H. Ct.) commented, at p. 220:
It is to be remembered that a latent ambiguity may be revealed either in the language of the instrument or when an attempt is made to apply it to the facts of a case.
When one attempts to apply the words and map in Article 11 to the Petrosar project an obvious contradiction emerges. According to the unchallenged evidence anyone seeking to apply the agreement travelling south on Highway #40 from the city limits discovers that in fact the stop light at the intersection of the 10th Concession, (the stop light at Corunna referred to in the agreement) is only 1-7/8 miles south of the city limits. It then becomes clear that the 10th Concession road also lies 1-7/8 miles from the southern city limits and not at a distance two miles, as the language of the collective agreement would suggest.
As the court noted in Leitch Gold Mines (supra at p. 216, 220) the discovery of an inaccuracy in a contract does not necessarily establish an ambiguity that should be resolved by reference to extrinsic evidence. It is only after extrinsic evidence establishes some equivocation relevant to the dispute that resort should be had to parole evidence of the intention of the parties. In the Leitch Gold Mines case it was argued that an inconsistency between the language in a mining rights contract and an inaccurate sketch map that was incorporated in the agreement established a latent ambiguity that should be resolved by resorting to viva voce evidence of the intention of the parties. The court concluded that notwithstanding the inaccuracies in the map there was no relevant latent ambiguity, reasoning in part that the intention of the contract was still clear. The court found that even allowing for the flaws in the map the parties were in entire agreement, having clearly intended their rights to be as described on the map. It therefore declined to give any weight or effect to further extrinsic evidence which had been adduced as to the parties' intentions.
In the instant case it is clear that there is an error in the language of Article 11. The stop light at Corunna is not two miles south of the city limits. But there is no error as between the language of Article 11 insofar as it refers to the stop light as a specific geographic limit and by extension, the 10th Concession as the southerly limit of the Free Zone. That is what the map shows.
Following the principles established in the Leitch Gold Mines case the first thing to determine through extrinsic evidence is whether the map in fact reflects a clearly expressed intention of the parties about the boundaries of the Free Zone, subject to a common error in their estimate of the distance from the city limits to the stop light at Cornunna. If that is true, there is no latent ambiguity made out, but only a common mistake which does not go to the mutual intention of the parties.
Evidence respecting the history of Article 11 was given on behalf of the union by G. Douglas Luno who was the business representative of the union from July of 1962 through September of 1973. Mr. Luno adduced in evidence a copy of the collective agreement between the parties for the three year period 1962 through 1965. The travel allowance provision in that agreement was as follows:
When an Employer requires a Carpenter to travel a distance of two miles south of the Sarnia City Limits and Point Edward and two miles east of the Sarnia, City Limits and Point Edward, the Employer shall pay all transportation charges in excess of twenty cents (20~) per day and travelling time both ways from two miles south of the Sarnia and Point Edward City Limits, and two miles east of the Sarnia and Point Edward City Limits to the job and will be paid at straight time.
It is clear that at that time the boundary beyond which travel allowance became payable was two miles both south and east of the city limits. Mr. Luno described the provision then in effect as a headache. It required a computation of an employee's transportation charges in excess of 20 cents and a further determination of how much time the carpenter spent in travel beyond the two mile limit, such time to be paid at straight time. For example if, on a given day in 1962 a carpenter was working on a site one mile south of the boundary line and took public transportation at a round trip cost of 50 cents, with his total road trip travel time south of the boundary being 20 minutes, he could claim 30 cents plus 20/60 of the then hourly rate of three dollars and ten cents. The formula to calculate his travel allowance would be:
20
— x 3.10 1.03 + .30 = 1.33
60
If however the next day or shortly thereafter he moved to a different job site, a common occurrence in the construction industry, his travel allowance would have to be recomputed according to the time and travel charges involved at the new location. If he was driving all or part of the time, or was in a car poo1, the daily computation could become still more complicated. Given the number of carpenters that could be employed outside the two mile boundary on a daily basis, and the frequency with which carpenters change job sites it is easy to accept Mr. Luno's evidence that the travel allowance formula in the 1962 collective agreement was a headache to administer.
- He resolved to change it to a simple formula that could be easily applied and administered. In the negotiations for a new collective agreement in 1965 Mr. Luno proposed the language establishing the three zones that are now part of the agreement including his own sketch of the boundaries, as follows:
ARTICLE 12 - TRANSPORTATION
AND TRANSFER OF EMPLOYEES
12.01 For the purpose of determining the Employer's obligation to supply transportation of employees:
Free Zone is defined as the City of Sarnia and Point Eward and up to two miles south of said City Limits (commonly known as the stop light in Corunna at the 10th Concession of Moore and Highway 40) and two miles east of and north easterly of said City Limits (commonly known as Kimball Side Road). (As illustrated on map.)
Zone A is a defined area east of the St. Clair river south of to a point known as Highway 80 and then east to a point known as Highway 21 north on Highway 21 to Junction of Highway 7 and 21, thence north to Lake Huron known as side road 15 of Plympton Township. This area does not include the south side of Highway 80 nor the east side of Highway 21 nor east side of Township Road 15 of Plympton. (As illustrated on map.)
Zone B Remainder of Lambton County. (As illustrated on map.)
12.04 Transportation in Zone "A" are as follows: Zone A - $2.00 per day.
12.05 Transportation in Zone "B" are as follows: Zone B - $3.50 per day.
. . . [Map omitted] . . .
It is clear, and indeed undisputed, that the intention of the three zone formula and map introduced in 1965 by the agreement of the parties was to establish three easily identifiable zones in two of which travel allowance would be payable on a flat daily rate without regard to transportation charges or travel time incurred by the employee. To do this the parties retained the designation of the distance of two miles but added two more specific descriptive references to pinpoint the boundary line between the Free Zone and Zone A: to the south they added the words "commonly known as the stoplight in Corunna at the 10th Concession of Moore and Highway 40". To the east they added "commonly known as Kimball Side Road". To both descriptions they added the qualifications "as illustrated on map". There is nothing ambiguous about the map. Whether in Mr. Luno's rough sketch in the 1965 agreement or in the more polished diagram in the current agreement, the southerly and easterly boundaries of the Free Zone are clearly marked as the 10th line and the Kimball Side road.
It is a general precept of contract interpretation that insofar as possible words should be taken to have some meaning. A corollary is that when new words are added to words previously found in a collective agreement, the new words can be presumed to qualify or modify the old. That is why when a collective agreement has apparently contradictory language it can be useful to examine the language of previous collective agreements to clarify the intention of the parties, much in the way that the intention of a piece of legislation can be elucidated by examining its evolution.
If the interpretation of Article 11 put forward by the company were to prevail the reference in the collective agreement to the 10th Concession and the Kimball side road would be entirely without meaning. In this regard it should be noted that like the 10th Concession, the Kimball side Road is slightly less than two miles from the city limits. If the parties had intended two miles from the city limits to be the measure of either boundary of the Free Zone they need only have specified two miles, as they had in the 1962 collective agreement. This Board cannot accept that they would have added the more precise designation of the 10th Concession road and the Kimball Side Road both in the language of Article 11 and in their map, a map obviously to be relied on by everyone affected by the collective agreement, if they had intended the boundary to remain unchanged at two miles, wherever the two mile line might fall. In our view a plain reading of the amendment to the article made in 1965 show that as part of their attempt to simplify their travel allowance provision the parties agreed on the 10th line and the Kimball Side Road as the visible boundaries of the Free Zone. They may have believed that those roadways were two miles from the city limits, or they may not have put their minds to it, but there is no evidence that their selection of those two roadways as boundaries was clearly conditioned on that being so. The alternation of their language to include specific landmarks supports the opposite conclusion.
For the foregoing reasons, having regard to the extrinsic evidence adduced respecting the negotiating history of the travel allowance provision, the Board finds that the parties had a clear and common intention to make the line plainly designated in their map and reflected in the language of Article 11 the boundaries of the Free Zone. That they incorporated a common mistake in retaining the earlier reference to two miles establishes an error in language and geography that they made jointly. It in no way, however, establishes any ambiguity about their intentions as to the boundaries of the Free Zone. On the basis of the principles expressed in Leitch gold Mine case, therefore, having used extrinsic evidence to find that the intention of the parties was unambiguous, the Board should have no further reference to extrinsic evidence of the intention of the parties.
Even if it were to rely on the evidence called by both parties as to the way in which the provisions of Article 11 have been administered in the past, that evidence would be of very little assistance. It appears that on jobs falling outside both the 10th line and the Kimball Side Road but inside the two mile limit sometimes the travel allowance has been paid and sometimes it has not. When past practice is apparently as contradictory and inconclusive as the very language that might cause us to look at it, it would, quite apart from its self serving nature, be of little assistance.
We should add that even if our conclusion based on the foregoing analysis were not correct, the grievance would succeed on an alternative ground. It is common ground that the work performed lies entirely more than two miles south of the city limits. It appears that the entrance to the project and the brass alley where employees check in and out are north of the two mile line, but that all work is performed south of the line. If it were accepted that the two mile line is the line of demarcation between the Free Zone and Zone A, we must conclude that since all of the employees' work is performed in that area, they must be seen as working in Zone A within the meaning of the collective agreement. We need make no determination of what our conclusion would be if the work performed itself straddled the two mile line.
For the foregoing reason, therefore, the Board finds that the grievance must be allowed. The respondent's work on the Petrosan project, being entirely south of the 10th Concession Road, is within Zone A as described in Article 11 of the collective agreement. The Board remains seized of this matter in the event that the parties are unable to agree with respect to the quantum of compensation owing or as to any other aspect of the interpretation or implementation of this award.