Sperry Vickers Division Sperry Inc. Canada v. International Association of Machinists and Aerospace Workers, District Lodge 717, 1983 CanLII 840

Sperry Vickers Division Sperry Inc. Canada v. International Association of Machinists and Aerospace Workers, District Lodge 717

[1983] OLRB Rep. July 1208

2498-82-M Sperry Vickers Division Sperry Inc. Canada, Employer, v. International Association of Machinists and Aerospace Workers, District Lodge 717, Trade Union

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: M. P Moran and Vera Brown for the employer, H. Goldblatt, R. B. McMillan and J. Atkinson for the trade union.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER W. F. RUTHERFORD; July 6, 1983

1. This is a reference pursuant to section 107 of the Labour Relations Act in which the Minister seeks the opinion of the Board on the question of his authority to appoint a conciliation officer in the circumstances of this case. Specifically, the question is whether or not there is a collective agreement in operation between the parties.

[Extensive review of evidence omitted]

22. Counsel for the employer submitted that the Minister has authority to appoint a conciliation officer because there is no collective agreement in force between the parties. It was his position that the Memorandum of Agreement was, in essence, merely a negotiated offer which was withdrawn by the employer prior to acceptance by the union through ratification. He acknowledged that in some circumstances the duty to bargain in good faith pursuant to section 15 of the Act might preclude the withdrawal of such offer, but stressed that in the present case the offer was withdrawn by the company in good faith as soon as it became aware that the union bargaining committee was construing that offer to include new C.O.L.A. money which was not part of the offer formulated by the company. Company counsel contended that the effect of the withdrawal of that offer, prior to its purported ratification by the membership, was to preclude any collective agreement from coming into existence. He submitted in the alternative that there is no collective agreement between the parties because the parties were never ad idem due to their mutual mistake concerning the C.O.L.A. clause. In the further alternative, he submitted that there is no collective agreement because the Memorandum of Agreement has not been ratified by the employer.

23. It was submitted on behalf of the union that the Minister is without authority to appoint a conciliation officer because there has been a collective agreement in force between the parties since January 17, 1983 when the membership ratified the Memorandum of Agreement. Union counsel submitted that the parties "had a deal" which the employer found, "in the cool light of the morning", not to be to its liking, and which the employer is now "trying to get out of". In the alternative, he submitted that any reasonably objective outsider would view the duly ratified Memorandum of Agreement as a collective agreement which includes a C.O.L.A. clause identical to that contained in the 1981-83 collective agreement. In support of that position, he emphasized the parties' longstanding practice of specifying in their memoranda of agreement all changes in language from previous collective agreements. He also contended that the Memorandum of Agreement required ratification solely by the union, and not by the employer.

24. Prior to the events which gave rise to the present proceedings, Mr. McMillan and Ms. Browne had always enjoyed a good professional relationship based upon mutual trust. Having regard to all the evidence, we have no doubt whatever that each of them honestly formed a different view of the manner in which the parties had agreed to resolve the C.O.L.A. aspect of their negotiations. On the one hand, Mr. McMillan and the other members of the union bargaining committee believed that in addition to the 35¢ fold in of C.O.L.A. from the previous collective agreement and the remaining 5¢ "float", the parties had agreed that the C.O.L.A. clause from the previous collective agreement would be included in the new collective agreement and would continue to generate "new money (if the Consumer Price Index rose). That understanding was based primarily on the parties' longstanding practice of specifying in their memoranda of agreement all changes in language from previous collective agreements, and on Mr. McMillan's belated comment at the bargaining table that the C.O.L.A. clause contained "no years" but rather "Just dates...." Ms. Browne and the other members of the company bargaining committee, on the other hand, believed that there would only be a 35¢ fold in of C.O.L.A., with a residual float of SC, and that there would be no "new money" generated by a C.O.L.A. clause in the new collective agreement. That understanding was based primarily on the aforementioned change in the union's C.O.L.A. proposal from "as proposed" to "40C of C.O.L.A. folded in", the company bargaining committee's firm and oft-stated resolve to settle within the "6 and 5" guidelines, and the fact that when the company negotiated on C.O.L.A., it traditionally negotiated "on just about every cent The relative magnitude of the amount in issue can perhaps best be appreciated by noting that the (potential) 40 cents of "new C.O.L.A. money" is almost as large as the annual wage rate increases specified in "Comp. Proposal No. 3" (incorporated by reference into the Memorandum of Agreement).

25. Thus, there exists in this case what has traditionally been described in the law of contract as a "mutual mistake", as opposed to a "common mistake". The distinction between those two categories of bilateral mistakes is described as follows in Cheshire and Fifoot, The Law 91 Conduct (8th Ed. London: Butterworths) at pages 202 and 203:

"In common mistake, both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistaken about some underlying and fundamental fact. The parties, for example, are unaware that the subject-matter of their contract has already perished.

In mutual mistake, the parties misunderstand each other and are at cross-purposes. A, for example, intends to offer his Ford Cortina car for sale, but B believes that the offer relates to the Ford Zephyr also owned by A."

(See also Dalewood Investmental Ltd., v. Maida (1982), 1982 CanLII 2150 (ON CA), 40 O.R. (2d) 472 (Ont. C.A.)) The effect of a mutual mistake at common law is described in the following passage from pages 221 and 22 of that text:

"Let us first examine the case of mutual mistake, where each party is mistaken as to the other's intention, though neither realizes that the respective promises have been misunderstood. This situation would arise, for instance, if B were to offer to sell his Fort Cortina car to A and A were to accept in the belief that the offer related to a Ford Zephyr. In such a case, no doubt, if the minds of the parties could be probed, genuine consent would be found wanting. But, the question is not what the parties had in their minds, but what reasonable third parties would infer from their words or conduct.

Applying itself to this task, the court has to determine what Austin called “the sense of the promise”. In other words, it decides whether a sensible third party would take the agreement to mean what A understood it to mean or what B understood it to mean, or whether indeed any meaning can be attributed to it at all. The promisor may have made his promise in one sense, the promisee may have accepted it in another. There may have been mistake of a fundamental character which caused the one to put a wrong interpretation upon the promise of the other. But it is for the court to decide what, if any, is the interpretation to be put on what the parties have said or done.

In a leading case, BLACKBURN, J., explained the attitude of the law. He said:

'If whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

The result is that if. from the whole of the evidence, a reasonable man would infer the existence of a contract in a given sense, the court, notwithstanding a material mistake, will hold that a contract in that sense is binding upon both parties....

Cases may occur, of course, in which it is impossible to impute any definite agreement to the parties. If the evidence is so conflicting that there is nothing sufficiently solid from which to infer a contract in any final form without indulging in mere speculation, the court must of necessity declare that no contract whatsoever has been created."

At page 231 of that text, the authors describe the manner in which courts having equitable jurisdiction have dealt with mutual mistake, as follows:

"Equity follows the law in holding that a mutual mistake does not as a matter of principle nullify a contract. In the nature of things, indeed, there is no room for equitable relief, since the court, after considering the mistake and every other relevant fact, itself determines the sense of the promise. In general, therefore, a party is not allowed to obtain rectification or rescission of a contract or to resist its specific performance on the ground that he understood it in a sense different from that determined by the court....

Nevertheless, the particular remedy of specific performance, since it is exceptional in nature, is one that lies very much within the discretion of the courts, and there certainly are cases in which it has not been forced upon a party who has mistaken the admitted sense of a contract....

A mutual mistake does not generally make a contract void (or voidable) unless the mistake of one party is known to the other party, there is such ambiguity that a reasonable person could not draw any relevant inference concerning the terms of the contract which is alleged to have come into existence, or the mutual mistake goes to the heart of the entire contract or affects a matter that is fundamental to the contract as a whole. Absent such circumstances, the general rule is that a party is bound, in spite of his mistake if, whatever his real intention may have been, he conducts himself in such manner that a reasonable person would believe that he was assenting to the terms proposed by the other party, and that the other party, acting upon that belief, enters into a contract with him. Similar principles apply to a situation in which a party conducts himself in such a manner that a reasonable person would believe that he was offering to contract on certain terms and the offeree, acting upon that belief, accepts the offer. (See, generally, Treitel, The Law of Contract (London: Stevens & Sons, 1979) at 217-219; Waddams, The Law of Contracts (Toronto: Canada Law Book Limited, 1977) at 94-98, 211-214, and 237-238; and Fridman, The Law of Contract in Canada (Toronto: Carswell, 1976) at 81-110.)

26. The issue of the effect of a mutual mistake on an otherwise valid collective agreement came before the Board in Universal Handling Equipment Company Limited, [1979] OLRB Rep. April 356. In that case the union had signed a memorandum of agreement (which provided for a dental plan) on the basis of a mistaken understanding that the benefits available under the dental were greater than was actually the case. In a reference to the Board under what is now section 107 of the Act, the union contended that since the parties had not been ad idem on the effect of that clause, the collective agreement was a nullity. In rejecting that contention, the Board wrote:

"12. A collective agreement is frequently the consummation of protracted, and arduous, bargaining, but the Act envisages that once the parties have reached agreement, and expressed that agreement in language deliberately chosen by them, they will remain bound for its prescribed term. Indeed, rescission of a collective agreement, before the expiry of its prescribed term, can only come about with the consent of both the parties, and the Ontario Labour Relations Board. The collective agreement is an essential element in an established legislative scheme to provide for stable employer/employee relations and industrial peace. The union's contention in this case would seriously undermine these important legislative objectives for, when­ever it appeared that a collective agreement might be less advantageous than was at first supposed, a trade union or employer could claim that it had misunderstood the bargain, or was motivated by considerations which afterwards turned out to be misconceived. If this could be successfully argued, there would be few unimpeachable agreements in the Province of Ontario. Virtually every dispute as to the interpretation of an agreement could become a 'mistake' which would vitiate the entire agreement.

13. The supplementary dental benefit is a relatively minor part of this collective agreement, yet the union now contends that because it is less generous than anticipated the entire agreement must fall - or, more accurately, never existed. The Board simply cannot accept this contention. The Agreement accurately reflects precisely what the union bargained for, in precisely the terms which the union and the company accepted. Since the union had initiated the proposal for the new benefit and had in its possession a description of the coverage provided by Blue Cross Rider ~2, it is difficult to understand how there could be any misunderstanding as to what it was bargaining for; but in any event, the Board is satisfied that there is a binding collective agreement between the parties and that any issue which remains is one of interpretation which must be resolved pursuant to the arbitration provisions in the agreement.

14. The issue has also been considered in the arbitral jurisprudence. In Re Puretex Knittiing Co. Ltd. and Canadian Textile & Chemical Union, Local 560 (1975), 1975 CanLII 2156 (ON LA), 8 L.A.C. (2d) 371 (Dunn), the company argued that there was no collective agreement between the parties because the memorandum of agreement which they had signed did not represent their consensus. In the alternative, the company sought to have the arbitrator exclude from consideration the clause in question, which stipulated: "all rates to be increased by 40C" (as of a specified date). It was the union's understanding that this would add 40 cents to employee wage rates over and above a 5 cent increase previously received by some of the employees as a result of an increase in the applicable minimum wage. The employer's understanding, on the other hand, was that the 40 cents would be added to the wage rates set forth in the parties' previous collective agreement, and that it would not be in addition to the 5 cent minimum wage increase. A majority of the arbitration board (at pages 373-374) rejected the employer's contention that there was no collective agreement because the parties were not ad idem as to the legal effect of that provision:

"The parties entered into a written agreement, duly ratified it, and indeed implemented it in all but one of its provisions. Is the agreement then to be treated as void, or voidable, because it is made manifest that at its inception, one party held one opinion as to the legal ramifications of a single, if important, clause at odds with the opinion of the other party'? For this board to so hold would set a most dangerous precedent to the process of collective bargaining. Clause by clause settlement of issues is the process of negotiation. To allow one party to say, 'It was not our intention', and thus avoid a written contract, or a settled term of the contract, is to invite chaos in the labour relations field. A party is entitled to rely on the objective meaning of the wording settled, and should not be concerned with the subjective interpretations that the other party may wish to make.

Nothing this board heard leads it to believe that either company or union had anything less than full knowledge of the factual matters forming the basis of their negotiation. The fact that certain workers had been raised five cents on October 1, 1974, by governmental intervention was known to both. Both company and union signed their agreement with full knowledge of all factual information necessary for their prior deliberations. Neither of them can now impeach that agreement by saying its wording does not represent their agreement because that wording meant different things to each of the parties, ab initio. It may well be that the legal meaning of the words they adopted have a meaning quite different to that which either party may have intended to give them. In order to preserve integrity to a contract that parties have taken care to reduce to writing, we must look to its words to establish intent, and not to what the parties, post contu-actu, may wish to say was their' intent, albeit with honesty and sincerity.

The intention of the parties must be construed objectively. All we have heard supports the conclusion that both parties signed the agreement without knowing that the other held a different view as to its interpretation. It therefore remains for us to implement and interpret the collective agreement according to its tenor, admitting evidence only in case of ambiguity as to any of its terms."

28. In Re A in/co I/industries Ltd. and United Steelworkers, Local 7574 (1976), 1976 CanLII 2165 (ON LA), 13 L.A.C. (2d) 338 (Beck), the sole arbitrator quoted with approval and applied the reasoning in the Puetex case. In that case, the collective agreement contained the following provision concerning additional quality control inspectors:

"Should the company add regular inspectors to the staff in addition to the present strength of five, the bargaining unit status of the additions will be negotiated with the union.

It was the union's understanding that any additional quality control inspectors would automatically be included in the bargaining unit, with only their wage rate and classification to be negotiated. The company, on the other hand, was of the view that the issue of whether new inspectors would be included in the bargaining unit was also a matter for negotiation. In considering the question of whether the contract doctrine of mutual mistake should apply so as to void all, or part of the collective agreement, and deciding against it, the arbitrator wrote as follows (at pages 343-344):

"The most likely scenario is that there is here a case of mutual mistake. That is, the union honestly believed that the additional quality control inspectors would be included in the bargaining unit, and the company honestly believed that the matter would be the subject of negotiations. The result is a case of mutual mistake with respect to art. 2.01. Common law contract doctrine with respect to a mutual mistake is that if the matter goes to the heart of the entire contract or at least affects some matter that is fundamental to the contract, then the whole contract is considered void. However, if the matter is not fundamental, and is severable, that is it might be cut out of the contract without rendering senseless what remains, then the particular clause alone is rendered void but the remainder of the contract stands. Thus if this were a pure point of contract law it would be held that art. 2.01 is severable and void which would leave the parties with no agreement as to the status of the quality control inspectors. In that case it is likely that the matter would be negotiated when the present collective agreement expires on June, 1977. However, arbitrators have been extremely loath to apply strict contract law to a collective agreement which has as its primary purpose the regulation of conditions of employment between employer and employee. To render an entire contract void, or even a single clause, is to leave the parties in limbo and possibly seriously disrupt not only the relations between the parties but the economic life of the particular industry. A similar situation arose in Re Puretex Knitting Co. Ltd. and Canadian Textile & Chemical Union, Local 560 (1975). 8 L.A.C. )2d) 371 (Dunn)....

I agree with the sense of the award of the majority in the Puretex case. I appreciate that another view would be to regard collective bargaining as a dynamic process with temporary stabilization of the employment relationship seen against a background of past negotiations and with further negotiations to come. Viewed in this light, the voiding of art. 2.01 because of mutual mistake is not seen to be so serious a matter - it is simply one of many matters to be resolved at the next stage of negotiations. I do not say that the position taken in the Puretex case is the one to be preferred in all cases. There may well be cases where the most just and equitable result is to void the particular clause - although I find it difficult to think of cases where it would be preferable to void an entire collective agreement. In this case, I find it preferable on the facts to apply the Puretex doctrine. Thus it becomes necessary to look to the agreement that the parties have reduced to writing to establish what is the agreement between them….”

(See also Re Ontario Jockey Club and Mutual Employees’ International Union, Local 528 (1980), 1980 CanLII 3961 (ON LA), 28 L.A.C. (2d) 14 (Carter) in which a board of arbitration referred to the Puretex and Amico awards, and commented at page 18), in obiter dictum, that it is "highly questionable whether the common law doctrine of mutual mistake "has an appropriate place in the law of the collective agreement".)

29. In a recent arbitration award between Hamilton Medical Laboratories and County Medical v Medical Laboratory and Ontario Public Service Employees Union (dated June 15, 1983, as yet unreported) Mr. Springate, sitting as a sole arbitrator, was called upon to arbitrate a grievance concerning a memorandum of settlement which provided, in part, as follows:

"4. Wages effective January 1st 1981 - 12% across the board increase.

5. Wages effective April 1st 1982 - 5% across the board increase."

The company contended that the 12 per cent and 5 per cent salary increases were all the employees were entitled to receive, and that no additional "incremental increase" was to be paid to employees as a result of movements through the salary scale based upon increased service. The union, on the other hand, argued that employees were entitled to receive not only the 12 and 5 per cent increases, but also incremental increases resulting from grid position changes due to increased service. The arbitrator found that at all relevant times the representatives of both parties acted in good faith but had a serious misunderstanding as to what they were agreeing when they signed the memorandum of settlement. After reviewing the pertinent Board and arbitral jurisprudence, the arbitrator expressed agreement with the reasoning contained therein and also made the following observations, with which we respectfully agree:

"In addition, I would add that one very good reason for not applying the common law contract doctrine of mutual mistake to a collective agreement is that at common law a collective agreement is not a contract to which contract doctrine might apply. A collective agreement exists and is enforceable only by virtue of the Labour Relations Act. See Young v. Canadian Northern Railway [1931] D.L.R. 645, a decision of the Judicial Committee of the Privy Council. and, more recently, the decision of the New Brunswick Court of Appeal in Ste. Anne Nackawic Pulp & Paper Ltd. v. Canadian Paper Workers Union, Local 219. 82 CLLC ¶14,216. The generic difference between a common law contract and a collective agreement was graphically illustrated in McGavin Toastmaster Ltd. v. Ainscough et al. (1975) 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1, where it was contended before the Supreme Court of Canada that employees who had engaged in an unlawful strike during the term of a collective agreement had thereby breached their individual contracts of employment such that the employer need not honor other terms of the applicable collective agreement. A minority of the Court were of the view that the employees were in breach of individual contracts of employment (which, in their view, were derived from both the collective agreement and the general law), and that on the basis of the common law doctrine of fundamental breach, the employer was not bound by the other terms of the individual contracts of employment, including the benefits stipulated for in the collective agreement. The majority of the Court, however, rejected this view. In delivering the majority decision, Chief Justice Laskin stated that the common law as it applies to individual employment contracts is no longer relevant to employer-employee relations governed by a collective agreement, and in the following terms indicated that the common law doctrines of repudiation and fundamental breach are not applicable to a collective agreement:

'In my view, therefore, questions such as repudiation and fundamental breach must be addressed to the collective agreement if they are to have any subject-matter at all. When so addressed, I find them inapplicable in the face of the legislation which, in British Columbia and elsewhere in Canada, governs labour-management relations, provides for certification of unions, for compulsory collective bargaining, for the negotiation, duration and renewal of collective agreements. The Mediation Services Act which was in force at the material time in this case provided in s.8 for a minimum one-year for collective agreements unless the responsible Minister gave consent to earlier termination, and provided also for the making of collective agreements for longer terms, subject to certain termination options before the full term had run. Neither this Act nor the companion Labour Relations Act, R.S.B.C. 1960, c.205 [since repealed by 1973 (2nd Sess.), c.122, s. 151], could operate according to their terms if common law concepts like repudiation and fundamental breach could be invoked in relation to collective agreements which have not expired and where the duty to bargain collectively subsists.'

Section 44 of the Labour Relations Act contains the following provision relating to differences arising from the interpretation of a collective agreement:

‘44.-( 1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.'

This provision indicates that disputes over the interpretation of a collective agreement are to be resolved by arbitration. In my view, given section 44 of the Act as well as the Court, labour board and arbitration decisions referred to above, all differences between the parties as to how a collective agreement is to be interpreted, including instances where the parties had different understandings as to what the language they had agreed to actually meant, are to be resolved through arbitration, and not by voiding the collective agreement which would generally trigger a right to strike or lockout. Were it otherwise, there would he few collective agreements whose validity could not be challenged."

We are confirmed in this view by the provisions of sections 52 and 57 of the Labour Relations Act, which are the Ontario equivalent of the British Columbia legislative provisions to which Chief Justice Laskin referred in his majority decision in the Mc Gavin Toastmaster case.

30. Therefore, if the January 11, 1983 Memorandum of Agreement is in other respects a collective agreement for the purposes of the Labour Relations Act, the fact that the parties were mutually mistaken concerning the C.O.L.A. provisions encompassed by it would not vitiate that document. Accordingly, it is necessary to consider whether that document is, in other respects, a collective agreement.

31. Section 1(1) of the Act provides, in part, as follows:

“In this Act,

(e) collective agreement' means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement;

The Board has concluded in a number of cases that a memorandum of agreement similar in form to the January 11, 1983 Memorandum of Agreement can constitute a collective agreement. See, for example, Coulter Copper & Brass Limited, [1981 OLRB Rep. May 519: Windsor Tube and Metal Inc., [1981] OLRB Rep. Sept. 882: and Versasevrices Limited, [1972] OLRB Rep. Apr. 306. See also Re Corporation of the City of Penticton and Canadian Union of Public' Employees. Local 608, [1977] 17 L.A.C. (2d) 316 (Smith); Re Alcan Canada Foils v and Printing Specialties & Paper Products Union, Local 466 (1976), 11 L.A.C.) 2d) 352 (Schiff); Giant Yellowknife Mines Limited, 76 CLLC ¶16,002 C.L.R.B.); and International Brotherhood of Electrical Workers, Local 213, and John Inglis Co Ltd., [1974] 1 Can. LRBR 481 (B.C.L.R.B.). However, that jurisprudence also indicates that where, as in the present case, the memorandum of agreement is subject to ratification (by one or both of the parties), it does not become a collective agreement until ratification has occurred. (See also Unifin Division of Keeprite Products Limited, 119761 OLRB Rep. June 286, and the cases cited therein.) Given the past practice of the parties, the fact that a high ranking official of the parent company was at the bargaining table, and the fact that the company bargaining committee was, to the knowledge of the union, in the practice of contacting higher management before making any proposal at the bargaining table which was beyond their original mandate, there is considerable force in union counsel's contention that the Memorandum of Agreement was subject to ratification by only the union, and not by the company. However, it is unnecessary to express a final opinion on that issue in the present case. Assuming without deciding that the Memorandum of Agreement required only union ratification, the Board is satisfied that, at most, it was a written offer by the employer which could become a collective agreement upon ratification by the union membership at a time when that offer remained outstanding. Under normal circumstances, the section 15 duty to bargain in good faith, and make every reasonable effort to make a collective agreement, would preclude an employer from revoking an offer set forth in such a memorandum prior to the date on which the parties contemplated that the offer would be brought before the membership for ratification. However, where, as in the present case, the employer, acting in complete good faith, becomes aware that the Memorandum of Agreement may not accurately reflect the terms of settlement which it reasonably contemplated would be presented to the employees for ratification, neither section 15 nor any other provision of the Act precludes the employer from notifying the union prior to ratification that the offer has been withdrawn, thereby rendering ineffective any purported subsequent acceptance thereof through ratification. In this regard, we also note that there was nothing in the Memorandum of Agreement itself which prevented the employer from taking that action in the circumstances of this case.

32. For the foregoing reasons, we find that the union's purported ratification of the Memorandum of Agreement on January 17, 1983 did not bring a collective agreement into effect between the parties as the offer contained in that document had been legally and properly withdrawn by the employer prior to the ratification vote.

33. Accordingly, the Board is of the opinion that, there being no collective agreement in operation between the parties, the Minister does have the authority to appoint a conciliation officer in the circumstances of this case.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I agree fully with the reasons for advising the Minister that there is no collective agreement in force. I disagree with the obiter reasoning of my colleagues concerning the application of the "doctrine of mutual mistake" to the facts of this case.

2. If one party promises to supply apples and the other party promises to take oranges, there is no consensus ad ideun and there is no contract, be it a collective agreement or otherwise. In this case the "agreement" was not reduced to writing - and the issue is whether a clause in its entirety should be in or out of the collective agreement. It is not a matter of interpretation, and the money involved makes the issue into) one that goes to the very roots of the agreement and the ongoing relationship between the parties. It is also not a matter of contractual remedy, as dealt with by the Supreme Court of Canada in the McGavin Toastmaster (i) case. This is not a ease where the parties agreed to something and are now asking the trier of fact to tell them what it is. Rather one party talked apples and the other oranges and they end up with a basket of neither.