Ontario Public Service Employees Union (OPSEU) v. The Crown in Right of Ontario represented by Management Board of Cabinet, 1998 CanLII 18425

[1998] OLRB REP. MARCH/APRIL 180

3730-95-M; 3756-95-M Ontario Public Service Employees Union (OPSEU), Applicant v. The Crown in Right of Ontario represented by Management Board of Cabinet, Responding Party; Association of Management, Administrative and Professional crown Employees of Ontario (AMAPCEO), Applicant v. The Crown in Right of Ontario represented by Management Board of Cabinet, Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

APPEARANCES: D. Eady and E. Wesley for OPSEU; S. Barrett and Gary Gannage for AMAPCEO; B. Loewen, C. Simpson and Anna Hoad for the responding party.

DECISION OF THE BOARD; April 21, 1998

1. These are two applications for the determination of the status of a number of employees of the Ministry of Finance working in the Ontario Financing Authority (OFA), heard together on consent of the parties. The parties are in dispute as to whether the Bill 7 amendments to The Crown Employees Collective Bargaining Act, referred to below as CECBA, have resulted in the exclusion of a large number of positions from the bargaining units represented by the applicants OPSEU and AMAPCEO. This decision deals with the following positions, all in the OFA:

A. In relation to the OPSEU bargaining unit -

1. Customer Service Representative - Province of Ontario Savings Office (POSO);

2. Money Markets and Foreign Exchange Analyst (Trader);

3. Financial Officer - Swaps, Recording and Payment Position; and

B. In relation to the AMAPCEO bargaining unit -

4. Manager, Administrative Services;

5. Project Manager (Capital Markets Programmer); and

6. Bank Funding and Fiscal Agency Supervisor.

7. At the commencement of the hearing OPSEU agreed that the second position listed above, Money Markets and Foreign Exchange Analyst (Trader) had been properly excluded. Thus, five positions remain in dispute.

The Issue

3. The parties are in dispute over whether all employees of the OFA have been excluded by Bill 7, and if not, where the exclusion line has been drawn. The principal statutory provision requiring interpretation is section 1.1(3) of the CECBA as amended by Bill 7. It reads as follows:

(3) This Act does not apply with respect to the following:

1. Members of the Ontario Provincial Police Force.

2. Employees of a college of applied arts and technology.

3. Architects employed in their professional capacity.

4. Dentists employed in their professional capacity.

5. Lawyers employed in their professional capacity.

6. Physicians employed in their professional capacity.

7. Provincial judges.

8. Persons employed as a labour mediator or labour conciliator.

9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations.

10. Persons employed in a minister's office in a position confidential to a minister of the Crown.

11. Persons employed in the Office of the Premier or in Cabinet Office.

12. Persons who provide advice to Cabinet, a board or committee composed of ministers of the crown, a minister or a deputy minister about employment-related legislation that directly affects the terms and conditions of employment of employees in the public sector as it is defined in subsection 1(1) of the Pay Equirs' Act.

13. Persons who provide advice to Cabinet, a board or committee composed of ministers of the crown, the Minister of Finance, the Chair of Management Board of Cabinet, a deputy minister in the Ministry of Finance or the Secretary of the Management Board of Cabinet on any matter within the powers or duties of treasury Board under sections 6, 7, 9 or 9 of the Treasury Board Act, 1991.

14. Persons employed in the Ontario Financing Authority or in the Ministry of Finance who spend a significant portion of their time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the Consolidated Revenue Find, including persons employed in the Authority or the Ministry to provide technical, specialized or clerical services necessary to those activities.

15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

The Board's Jurisdiction

4. The decision of the Board, differently constituted, in the interim relief application in this matter, The Crown in Right of Ontario represented by Management Board of Cabinet, [1996] OLRB Rep. Sep/Oct. 780, recorded the Crown's earlier opposition to our jurisdiction, as well as appearing to question that jurisdiction itself. Although the crown has withdrawn its objection, the Board entertained argument on its jurisdiction to hear this matter.

5. In light of the parties' arguments and our review of the statutes, we have determined we do have jurisdiction to hear this matter either on consent of the parties or pursuant to section 114(2) of the Labour Relations Act,J995 (the LRA). Section 114 provides as follows:

6. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

Other provisions relevant to our determination as to jurisdiction include the following excerpts from CECBA, as amended by Bill 7:

1(1) In this Act,

“Crown employee, means a Crown employee as defined in the Public Service Act.

(2) The Act does not apply with respect to,

(a) individuals who are not Crown employees;

(b) agencies of the Crown that are not designated under clause 29.1(a) of the Public Service Act that employ only individuals who are not Crown employ­ees.

2(1) Subject to subsection (2) the Labour Relations Act, 1995 shall be deemed to form part of the Act.

(2) This part sets Out modifications to the provisions of the Labour Relations Act 1995 that apply in the circumstances of this Act.

19. 1. The application of section 114 of the Labour Relations Act, 1995 with respect to Crown employees is subject to the modifications set out in this section.

(2) Despite subsection 114(2) of The Labour Relations Act. no person shall be found to be a Crown employee unless he or she is considered to be a Crown employee under the Public Service Act, 1993, c. 38, s.19.

Thus the Labour Relations Act, 1995 is incorporated into the CECBA, subject to specific modifications set out in the CECBA. One of those is subsection 3(1) of the CECBA which provides that subsection 1(3) of the Labour Relations Act, 1995 is not part of the CECBA. Subsection 1(3) sets out what are commonly referred to as the managerial and confidential exclusions, the usual subject matter of an inquiry under subsection 114(2). It provides as follows:

1(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee.

(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity; or

(b) who, in the opinion of the Board, exercises managerial functions or is em­ployed in a confidential capacity in matters relating to labour relations.

6. CECBA is, as can been seen, an amalgamation of portions of the LRA and CECBA. We have concluded that, given the results of this structure, the question, "Who is an employee?" in an application under section 114(2) arising in the CECBA context is indistinguishable from the question as to whether a person is an employee to whom CECBA applies. Both the nature of the most recent amendments to CECBA, and the history of the function of the Board under section 114(2) support this conclusion.

7. When adopting Bill 7, the Legislature incorporated the Labour Relations Act, 1995 into CECBA, (rather than incorporating CECBA into the Labour Relations Act, 1995 as had previously been the case). It specifically incorporated the definitions in the Labour Relations Act, 1995 by virtue of subsection 1(2) of CECBA. Thus, the word "employee" in section 114(2) and in CECBA carries with it the same meaning as it does under the Labour Relations Act, 1995, unless specifically modified by CECBA. It has not been so modified. The definition under the Labour Relations Act, 1995 is not extensively substantive, indicating only that the word "employee" includes dependent contractors. However, that is an essential signal to interpreters of the word "employee" in the context of a labour relations statute indicating that one is not looking just at whether a person is in an employment relationship (although that will sometimes be the issue at hand). One is more fundamentally looking at the nature of the work relationship to see if it was intended by the Legislature to be governed by the statute in question for collective bargaining. The determinations of employee status that the Board had made under subsection 114(2) have always been informed by that purpose. The Legislature must be presumed to have been aware of that when rearranging the CECBA structure.

8. Further, subsection 19(1) of CECBA as amended specifically contemplates the use of section 114(2), subject only to the proviso in subsection 19(2) that a person will not be found to be a Crown employee unless considered to be so under The Public Service Act. There is no issue in regards to that proviso in this case. All the persons in positions in dispute are Crown employees in that larger sense. Thus, the only express limitation on the use of subsection 114(2) in the CECBA context does not apply in this case. Subsection 114(2) is therefore available to serve the same purpose as in employee determinations under the Labour Relations Act, 1995. Indeed, if it is not to be used for this purpose, its incorporation into CECBA makes little sense. Section 114(1) already gives the Board the general jurisdiction to determine all questions of law and fact that arise in any matter before it. If, in any other proceeding between the Crown and an employee organization under CECBA. a question arose as to whether CECBA applied to a group of employees, there can be no question as to the Board's jurisdiction to determine that question. Section 114(2) provides an avenue to bring questions of whether a person is an employee to the Board directly during bargaining or during the operation of the collective agreement -an important tool for clarifying matters available to all parties subject to the LRA's jurisdiction.

9. The traditional shape of an application to determine employee status under subsection 114(2) has been a consideration as to whether a person was excluded under sub-section 1(3) of the LRA, most often as managerial or confidential. If one looks for similar provisions in CECBA, the parallel language for the managerial and confidential exclusions are now in the list of categories to which the Act does not apply. There is nothing in the combined structures of CECBA and the Labour Relations Act, 1995 which warrants the conclusion that the placement of the managerial and confidential exclusions in such a list, rather than in a structure like subsection 1(3) of the LRA was meant to have the result that such determinations were not to be made directly. Indeed, the choice of wording in section 19 of CECBA is curiously indirect if that was the intended result.

10. Further, although the argument in this case, as will be seen in detail below, revolves around whether or not CECBA applies to employees in the OFA, an alternative way to ask the question is whether the OFA employees in question are employees within the meaning of CECBA. That is the core question before us, in our view. The fact that answering it requires looking at the list of categories excluded does not change the essential nature of the task.

11. Further, we note that there are several portions of CECBA which refer to employees, outside of the defined term "Crown employees". For instance, see subsections 7(4), 7(6) and 51(2) referring to the remedial powers of the Grievance Settlement Board (GSB) in regards to employees, as well as the many references to employees in the bargaining unit (subsections 24(1), 25(1), and (7), 26, 27(1), 28(1) through (4) and 32(2)). Whether the OFA employees are such employees is an indistinguishable question from whether they are employees excluded by subsection I .1(3)(14) set out above. It would be in our view a prime example of the triumph of form over substance to find that the Board could determine whether the OFA employees are employees referred to in other sections of CECBA, but not the underlying question of whether they are employees excluded by section 1.1(3)(14). Thus, we agree with the parties that we have jurisdiction to hear this application.

12. In any event, in the determination of our own practice and procedure, we are of the view that the parties' consent to our hearing the matter directly removes any barrier to our determining this matter. As was submitted by counsel, it could be considered a preliminary question as to whether any application could proceed before us in regards to these individuals.

The Facts

13. The parties appeared before us with an extensive Agreed Statement of Facts on which we have relied, in its entirety, and for which we thank counsel. The salient points of the general sections are set out here in abbreviated form, and those more pertinent to particular disputed positions will be dealt with in the portions of this decision dealing with the five remaining positions in issue. The parties are agreed that all of the people in the disputed positions are employed by the OFA, and are Crown employees under the Public Service Act.

14. The Ontario Financing Authority ("OFA") is a corporation without share capital established by the Capital Investment Plan Act, 1993 ("CIPA"), and it exercises its powers as agent for the Province. The statutory objects of the OFA include:

• assisting the Province and public bodies to borrow and invest and managing their cash and their currency and other financial risks;

• providing such other financial services as are considered advantageous to the Province or any public body; and

• operating the Province of Ontario Savings Office.

15. The OFA has a Memorandum of Understanding with the Minister of Finance ("MOU") which requires the OFA to:

• plan and co-ordinate the financing and investment programs of the Province;

• provide cash management, banking and risk management services;

• act as borrowing agent and/or issuer of debt for the Province and public bodies and provide financial expertise and advice;

• raise money to finance capital investment for the Province, discharge provincial debt and fund the CRF;

• continue the operation and services of POSO (formerly operated directly by the Province rather than through the OFA).

16. The Consolidated Revenue Fund ("CRF") consists of money deposited at the credit of the Minister of Finance or a crown agency approved by the Lieutenant Governor in Council. The principal and interest expenses incurred in respect of the Province's borrowing and the expenses relating to investments and risk management instruments are liabilities of the CRF. The OFA is also responsible for investing money comprising the CRF until it is required to be spent and for funding the Province's borrowing requirements. The OFA manages the resulting debt and investment portfolios of the Province as well as the flow of money into and the payment of liabilities out of, the CRF. Because the OFA's services are provided almost entirely to the Province directly (as opposed to services to crown agencies or other public bodies), the OFA's expenses are all charged to the Provinces' public debt interest expense ("PDI").

17. The OFA is organized into five divisions under the Chief Executive Officer;

• Capital Markets (which includes the Risk Management branch) - The trader position, which is no longer in dispute, is from this section.

• Province of Ontario Savings Office (POSO) - Two disputed positions, Customer Service Representative (OPSEU) and Manager Administrative Services (AMAPCEO) are from the POSO division.

• Corporate Finance - None of the positions dealt with in this decision are from this division.

• Risk Control, which includes the Systems branch, and the disputed position of Project Manager (Capital Markets Programmer) (AMAP­CEO)

• Capital Markets Treasury - Two disputed positions, Financial Officer -Swaps (OPSEU) and Banking Funding Fiscal Agency Supervisor (AMAPCEO) are from this division.

18. Prior to the introduction of the Labour Relations and Employment Statute Law Amendment Act ("Bill 7") in 1995 all of the positions dealt with in this decision had been included within the respective bargaining units and were subject to the terms and conditions set out in the previous collective agreements with OPSEU or the voluntary recognition agreement with AMAPCEO. The Employer acknowledges that for the positions involved in the present hearing, there have been no material changes in the functions or duties of the positions that would warrant their exclusion from the bargaining unit on grounds other than those introduced by subparagraph 1.1(3)14 of Bill 7.

19. Pursuant to s. 67(2) of Bill 7 and its interpretation of the amendments regarding the application of CECBA, the employer indicated its intention that all of the employees of the OFA would cease to be members of their respective bargaining units on February 8, 1996,90 days after the section came into force.

20. The respective unions filed the present applications challenging the Employer's exclusions and applications for interim relief requesting that none of the challenged positions be excluded pending a decision on the merits. The AMAPCEO interim application was withdrawn pursuant to a settlement. OPSEU's request for interim relief was denied pursuant to the decision of the Board referred to above.

21. Pursuant to the settlement with AMAPCEO regarding their interim application, all of the employees affected ceased to be included in the bargaining unit effective February 8, 1996. However, their current terms and conditions of employment continued to apply and they were treated as if they were members of the bargaining unit. The parties agreed, however, that the employees would not have the right to strike until such time as they are determined to be or agreed to be within the bargaining unit. The employer acknowledges that to date, for the positions involved in the present application, this treatment has not resulted in any labour relations difficulties.

22. Employer counsel accepted at the hearing that if the determination the employer made regarding the application of CECBA is found to have been incorrect, the responding party is responsible for making whole the employees in the bargaining units affected by the improper removal from the bargaining unit. Mr. Loewen did not dispute OPSEU's submission that the Government had agreed to reimburse dues with interest if positions are found to be in the bargaining unit.

Arguments and Conclusions

23. The parties' arguments are presented in summary form here, first as to their general submissions and then as applied to the positions in question. Statutory provisions referred to in argument other than the CECBA excerpts provided above are set out as an appendix to the decision.

24. For the employer, Mr. Loewen argues that the purpose of the OFA exclusions is quite different than the usual managerial control exclusions, that the question is not one of whether the people in question are at arm's length from the employer or not. He acknowledges that there is no real evidence of conflict of interest in the years the disputed positions have been in the bargaining unit. The point is that there was legislative change. Counsel argues that the OFA exclusion in para. 14 is more like the traditional exclusion of people who are in positions confidential as to labour relations. The purpose is to ensure that internal strategy and communications on matters so important to government will be handled by people with undivided loyalties. As well it is submitted that the new exclusions are similar to exclusions by category in s. 3 of the LRA, e.g. of domestics, people engaged in hunting and trapping, to which the LRA does not apply. In cases concerned with those exclusions, it is irrelevant whether or not there is a conflict of interest. A person either falls within the category or not. And it is very clear from the transitional provisions that the people in positions covered by the new exclusions were once in the bargaining unit and are now out.

25. Mr. Loewen acknowledges the onus is on the employer because they are relying on a statutory exemption, but argues that it should not be any higher than the onus to establish that the exception applies.

26. Looking at the whole section, employer counsel argues that the main idea is clear: the legislature intended that the maintenance of financial affairs of the province would be outside the coverage of the statute. Management Board and the OFA are centralized agencies responsible for carrying out these activities for the province as a whole. We are asked to find that the distinction

between the centralized agencies and the Ministry of Finance is an appropriate distinction contained in the statute. The list of exclusions attempts to be all-embracing as to those in financial affairs. Counsel submits that also included is any activity integral to borrowing and investing, much as anyone performing activities integral to agriculture is excluded under the agriculture exception in the LRA. Anyone directly involved in the financial activities of the province is excluded.

27. Government counsel submits that the preamble to the Capital Investment Plan Act (CIPA) is the appropriate starting point, as it mirrors the idea of the exclusion. The purpose of OFA is to provide provincial investment and financing programs and this is a short form for the idea behind the statutory exclusions. The employer submits that the amendments intended to exclude all the employees in the OFA, as the entire operation is focussed on financing the operations of the province and all its employees are in a significant way focussed on that. OFA is an integrated whole, which can not be taken apart. For example, people involved in the cash management role and those involved in investing all need to know the risks and effects of one on the other.

28. Since its inception in 1993, the OFA has done very little for other bodies than the province itself, but work for other public bodies is included in its mandate. Thus it is submitted that all employees are currently providing assistance to the province in respect of borrowing and investing and are thus excluded by the wording of paragraph 14. In this context, counsel urges that the plain meaning of the words "the Province" means the Province as a whole, including all its activities, and does not make a distinction between the province and its ministries or agencies. Borrowing and investing by OFA is done for all of these organizations, through a great variety of debt instruments. Counsel notes that the auditors' report deals with them all together as part of the Province's financial status.

29. For OPSEU, Mr. Eady puts forward the following general propositions:

a. The government bears the onus of justifying the exclusion. Reference is made to St. Clair College [1980] OLRB Rep. July 1067 at pg. 1073, para. 12. It is argued that the purpose of CECBA is to extend bargaining rights as it was with The College Collective Bargaining Act in that case.

b. There are other ways than excluding all of the OFA to safeguard the integrity of OFA in a strike situation, e.g., essential service agreements. We are reminded that no other employer has the ability to define its own bargaining units, and thus counsel urges us to submit the government's rationale to careful scrutiny. The legislation could have ex­cluded ALL employees of OFA. Since they did not, it is submitted the Board should draw a line somewhere within OFA, rather than where the government as employer has drawn it, around the outside of the OFA. Counsel notes that the legislature was quite capable of being categorical, in other areas of the list of exclusions, such as when they excluded the whole of the cabinet office in para. 11.

c. CECBA has to be interpreted in light of the purpose set out in s. 2 of LRA: two of which are relevant - 1. to facilitate collective bargaining and 6. to encourage co-operative participation of employers and trade unions in resolving workplace issues. These apply to CECBA by virtue of s. 2 of CECBA which incorporates the LRA except where modified. No modification of the purpose section has been made. Counsel argues that this is an instruction to include as many people as the interpretation of the statute will reasonably bear. See para 36 of Transit Windsor, [1991] OLRB Rep. April 565 and Fanshawe College. [1991] OLRB Rep. Sept. 1044 at 1048, para. 12.

30. Looking particularly at the criteria in the paragraph 14 exclusions, OPSEU counsel observes that the Board's jurisprudence provides helpful indications as to how to interpret them. There has to be regular material involvement at the core of the job functions, rather than incidental aspects of the work. There has to be a clear connection between the exclusion and what the person actually does. Reference is made to St. Clair College, cited above, and its reference to Transair, 74 CLLC 905 at pg. 1077

31. For AMAPCEO, Mr. Barrett agrees with the thrust of the arguments for OPSEU and submits that the interpretation should be made in light of labour relations sense - particularly in the context of exclusion. But for CECBA, Crown employees would have no bargaining rights. When loss of bar­gaining rights is at stake, counsel urges that it should be a heavy onus. It is submitted that this is particularly so, where there has been no material change in duties to justify a change, and the Government puts forward no normal or pretended labour relations rationale. Counsel underlines the Crown's acknowledgment in the agreed statement of facts that there is no change in duties, no managerial or confidential basis for the exclusions and that there have been no labour relations difficulties since the agreement to treat the positions in dispute as if they continued to be in the bargaining unit.

32. We are urged to find that there is no meaningful distinction between the government as employer and the legislature in this instance. CECBA applies to other agencies like the WCB, but the exclusions in question are targeted at a particular employer, a division of the employer. Counsel submits that since this was drafted on behalf of the government as employer, the rule of contra preferendum should apply. To exclude all these positions, they should have to do so in the clearest of language.

33. Further, it is submitted that the Board should have reference to the test enunciated in Driedger on The Construction of Statutes, by Ruth Sullivan as its fourth canon of statutory interpreta­tion: to avoid absurd, unfair, arbitrary results which are against public policy.

34. We are urged to find that the manner in which the conflict of interest notion is preserved in para. 15 of the list of CECBA exclusions should inform the interpretation of all the exclusions, as it has in the case law from The Corporation of the District of Burnaby [1974] CLRBR I, onward. As in the confidential exclusion, and exclusions of lawyers, the Board has read in limitations from a labour relations perspective. In this respect, we are referred to Parkdale Community Legal Services [1977] OLRB Rep. Oct. 661. Counsel notes that in certain of the exclusions in the list, such as everyone in the Office of the Premier or in Cabinet office, there is no room for interpretation, so that when the legislature chooses other wording for other situations, as in paragraphs 12, 13 and 14, referring to people with particular functions, there must be a belief that there would be a conflict of interest. Thus, the opening words of paragraph 15, "other persons" with a conflict of interest.

35. Looking at the wording of para 14 itself, Mr. Barrett urges a focus on the notion of managing assets. Mr. Barrett adopts Mr. Eady's submissions about the CRF, but observes that s. 17(3) of CIPA says the revenues and investments of a corporation under the Act, of which OFA is one, do not form part of the CRF. POSO is one of the divisions of OFA, and counsel submits that the fact that it may do things on behalf of the Minister does not change that. We are asked to find that OFA money is not part of the CRF.

36. Turning to the concept of managing assets, counsel refers to the definition of "manage" in Black's law dictionary: control, direct, take charge of. Counsel submits that it is significant that the legislature chose that word, rather than words like "record, monitor, administer, process, allocate". It is submitted that the government's position slides over the meaning of "managing". Managing is of a higher order, requiring effective control, in AMAPCEO's submission. Counsel maintains that none of the positions in dispute have the requisite control and direction of assets of the CRF. Reference is made to St. Clair College, cited above, at para 26, pg. 1080 and 1092 where the term "formulation of budgets" and ~'senior economist" were interpreted purposefully by the Ontario Public Service Labour Relations Tribunal, distinguishing the people collating the information from those making the decisions. The analogy here, says counsel, is traders. They are actually borrowing, but the people below them are not.

37. In reply on the general issues, Mr. Loewen submits that the concept of contra preferendum applies to the interpretation of contracts but not to the interpretation of statutes.

38. As to the cases relied on by union counsel, Mr. Loewen observes that some of the purposes of the statute have changed since the decisions cited. Counsel submits that the purpose of the Bill 7 exclusions are the most relevant, and that it is clear the purpose was to remove people from the bargaining unit as set out in the transition provisions.

39. Employer counsel underlines the analogy of the agricultural exclusion cases in LRA, submitting that just as all who are integral to agriculture, including planter, tender and harvester, all the people involved in managing the assets and borrowing and investing should be excluded. Thus, the person who determines the amount of funds, those who actually invest( the planter), those who track (tenders) and those who make repayment under borrowing (harvesters) should be excluded here.

40. As to the argument that not all of the OFA should be excluded, counsel maintains that it should not trouble the Board to draw a line around all of OFA and that no weight should be given to the Board’s musing in the interim relief decision to the effect that some of the positions may be in and some out.

41. As to the argument that the wording of para. 15 should inform the interpretation of para. 14 and others, employer counsel maintains that this is an inappropriate interpretation in that conflict of interest cannot be intended to be part of the whole list, or else it would apply to categories like dentists, which makes little sense. Counsel says that para 14 is its own context, and the other paragraphs are other exceptions, which could have been applied if they were relevant.

42. Counsel responds to the unions’ reliance on St. Clair College, cited above, to the effect that there is a very substantial difference in statutory language which renders irrelevant much of what is said in those cases about the level of decision making.

43. As to the point that the positions in question could have been dealt with through the essential service provisions – Mr. Loewen grants that could have been done, but observes that the legislature chose instead to exclude them entirely.

44. Having considered the arguments, we find the wording of the statutes and the pertinent jurisprudence support the following general principles:

45. The statute must be interpreted in light of its purposes, both general and specific. The general purpose of CECBA is to extend collective bargaining to employees of the Crown. More specifically, the recent amendments refined the list of exclusions in a detailed way, from which the intent of the amendments themselves, integrated with the rest of the statute, must be determined. Although the intent of the amendments was clearly to remove some persons from the scope of collective bargaining, when they had previously had access to it, there is nothing in the amendments which signals a dramatic departure from the overall original purpose of the statute - to provide for collective bargaining for Crown employees.

46. External statutes, such as the various statutes governing the financial affairs of the Province, are to be used as an aid to interpretation of CECBA, and the LRA to the extent it is incorporated into CECBA. However, the different purposes of the various statutes must be taken into account.

47. As to onus, all parties agreed that the government has the onus of proof. We do not find it necessary to precisely define how heavy that onus is. The serious consequences of exclusion merit acting only on clear evidence, but the basic standard is still the balance of probabilities. In the positions before us, the onus was not determinative.

48. Looking at the specific wording of the list of exclusions in subsection 1.1(3), it is useful to first attempt an overview of its provisions. Some of the exclusions are based on membership in a specified employment group, without regard to the actual work functions performed, e.g., para. 2 "employees of a college of applied art and technology", or para. II, persons employed in the Office of the Premier or in Cabinet Office. Others are excluded according to their actual job functions, such as para. 9 "employees exercising managerial functions or employed in a confidential capacity in relation to labour relations" or para. 12 "persons who provide advice to Cabinet about employment related legislation" or para 14, with which we are dealing. In the latter category, there is more focus on the actual work the people in question perform, rather than where they are employed.

49. The rationale for some of the excluded categories is clear - such as community college employees and police who are excluded because they have their own statute governing their collective bargaining. Some are excluded for reasons related to the independence of their profession, such as lawyers, architects and dentists. Some are excluded for traditional conflict of interest reasons, such as those exercising managerial functions, or in a confidential capacity as to labour relations or who give advice about legislation that directly affects terms and conditions of employment in the public sector. The rest relate to the senior levels of government and its policy making arms, such as the offices of the Premier, ministers of the Crown or Cabinet, and those who advise at that level.

50. Looking then at para 14, to be excluded, individuals must be both:

I. persons employed in the Ontario Financing Authority or in the Ministry of Finance,

and

2. persons who spend a significant portion of their time at work in borrowing or investing money for the Province.

or,

3. persons who spend a significant portion of their time at work in managing the assets and liabilities of the Consolidated Revenue Fund.

We will refer to the above categories together as the financial exclusions. or,

4. Persons employed in the Authority or the Ministry to provide technical, specialized or clerical services necessary to those activities.

We will refer to this as the support services exclusion.

49. Paragraphs 11, 13, 14 and 15 are new to the legislative scheme. Given paragraph 14's place in the list of exclusions, and its introduction together with paragraphs 11 and 13, it appears that it is logically part of the exclusions aimed at reserving those employees involved in central policy and financial decision making to the management side of the collective bargaining relationship. Union counsel argued without contradiction that the 1993 amendments to CECBA giving crown employees the right to strike were likely important to the government's position on the meaning of the 1995 amendments. The grant of the right to strike was not repealed by Bill 7, and the refinements to the list of exclusions are plausibly related to this reality.

50. We have considered Mr. Barrett's argument related to para. 15 of the list of exclusions, to the effect that its conflict of interest criteria should inform the interpretation of the rest of the list. It is our view that the language is not clear enough to interpret it in the manner suggested. It is true that the wording "other persons who have a conflict of interest" could mean that all the other persons excluded also had a conflict of interest. However, certain of the exceptions would not fit with that, such as police and employees of community colleges, who are in their own bargaining units, albeit governed by legislation other than CECBA. As well, the language could simply mean persons other than the ones excluded by the other categories. The fact that no party suggested that any of the people involved had the type of conflict of interest that would be excluded by para. 15 cannot be the end of the matter when para. 14 has such specific language which is not on its face entirely coincident with a conflict of interest exclusion.

51. Mr. Barrett maintains that the government's construction is too broad because it would encompass anyone who participates in a sequence which ends up in the CRF, such as a human resources clerk who generates extra money. Mr. Barrett argued that the final portion of para 14 is worded very ambiguously and that the grammatical structure involved in paragraph 14 means that technically, one would have to fit in both the financial and the support services exclusion to be excluded under the support services exclusion. This is because, grammatically, the word "including" in para. 14 makes the last category a subset of the financial exclusions. Otherwise, counsel submits, this language would apply to 5,000 people working for the Ministry of Finance, mostly represented by OPSEU. Noting that the government has not sought to exclude all those people, counsel says it is too late for the government to take the position that this language should be that broadly construed.

52. Although structurally there is a foundation for this argument, in context it appears to us that the word "including" is used more in the sense of deeming people in the support services category to fall within the group excluded by the paragraph, rather than requiring a person to be doing both functions to be excluded. Otherwise, the support services exclusion would be redundant, because performing the financial functions would be sufficient to achieve exclusion.

53. In our view, the crucial word in need of elaboration in the support exclusion is the word “necessary". We were referred to no precedent on the interpretation of the word "necessary", and we are aware of none in a relevant context. A relevant dictionary definition of the word "necessary" from the Webster's Third New International Dictionary is as follows: "that cannot be done without: that must be done or had: absolutely required: essential, indispensable". Its application will be dealt with in the context of each position below.

54. The thrust of the government's argument is that all the employees in the OFA as presently functioning are part of an integrated whole, necessary to its activities of borrowing, investing and managing the Province's finances. By contrast, the unions argue that "necessary should be interpreted to mean someone actually working with the people who do the borrowing, investing and managing of the assets.

55. The government's submission that all of the disputed positions (as well as all of the other positions in the OFA) are necessary to the activities of the OFA, requires a consideration of the parties' arguments on the difference in structure between para. 14 and other paragraphs in the list. The unions submitted that some meaning must be given to the difference in structure between paragraph 14, and paragraphs structured like paragraph 11. The legislature clearly and unequivocally excluded all persons in the Office of the Premier in paragraph 11, but chose not to exclude all persons employed in the OFA or the Ministry of Finance. Instead, they chose to restrict the financial exclusions to those engaged in borrowing, investing, managing of assets, and those in necessary support positions. The unions maintain that the appropriate inference from this choice of language is that the Legislature made a deliberate choice to stop short of excluding all employees in the OFA and the Ministry of Finance. Mr. Loewen submits that this is not necessarily the case. He points to the fact, for instance, that the OFA, by statute, could be playing a much larger role with regards to agencies and Crown corporations than it is presently doing. There is room in its mandate, he submits, for positions that are not performing the functions in the financial exclusions, so we should not find that the current functions of employees are all the functions that the OFA could be performing. Thus, in the government's view, the fact that the result of the application of the criteria to each current position in the OFA is to exclude them all should not be seen as a problem, if the application of the criteria produces a justifiable exclusion in each case.

56. We agree that the focus must be on applying the criteria to the positions in dispute. This is true because of the wording of the paragraph. But it is also true because we do not have all the positions in the OFA before us in any detail. Rather, we have general information about the functions of the various divisions of the OFA. Thus we do not have a basis on which to make a finding on the question of whether any other positions in the OFA have been successfully excluded. However, we do find that the ordinary meaning of the words in paragraph 14 suggest that the intention was to exclude specific people, rather than necessarily the whole agency or Ministry. Thus, the language is not a mandate to exclude all OFA employees from collective bargaining, if the language supports the application of the statute to some positions.

Dealing then with the particular positions in issue:

Customer Service Representations (CSR's) - POSO tellers - OPSEU

57. The Province's retail borrowing takes the form of POSO deposits (including Guaranteed Investment Certificates) and Ontario Savings Bonds. Both are managed through the POSO division. The Province of Ontario Savings Office Act provides that the Minister of Finance may "borrow money by means of deposits" and may authorize a crown agency to operate offices for this purpose. POSO is used as the trade name for the offices, but POSO is not an agency of the Crown or other legal entity separate and apart from the Crown. The OFA is the crown agency authorized to operate POSO offices for the Crown to obtain money for the Province through POSO. Currently POSO is the source of about $2.1 Billion in Provincial Borrowing in the form of demand and fixed-term deposits.

58. Funds required to meet the operating needs of POSO are transferred daily from the Prov­ince's bank accounts managed by the Capital Markets Treasury Division ("treasury accounts") to the bank accounts for POSO ("POSO Accounts"). The net amount of funds deposited/withdrawn by customers to/from POSO are transferred daily to/from POSO accounts to/from provincial treasury accounts. Interest rates payable to POSO depositors for their deposits and charges for services to POSO customers are determined by senior management in POSO in accordance with regulations.

59. The Province's other source of retail borrowing, the Ontario Savings Bond program, is managed by the director of the POSO Division. This is done with assistance from senior POSO staff and staff in other OFA divisions. Ontario Savings Bonds are sold by staff in POSO branches as well as through private sector financial institutions. Ontario Savings Bonds generated borrowings slightly in excess of $1 Billion in 1996.

60. The job description and agreed statement of facts concerning the customer service represen­tatives (CSR) make it clear that the people occupying these positions perform the many tasks necessary for POSO to receive money and provide financial services to its clients, including the withdrawal of funds previously deposited. They can be summarized by stating that the employees in these positions perform functions similar to a bank teller and general office functions related to that work. The parties are agreed that a majority of a CSR's work is spent conducting client transactions, such as accepting withdrawals and deposits. They do not provide loans, mortgages or trust services. There are a total of 105 people employed in this position across the province in 23 retail branches.

61. For the government, Mr. Loewen argues that the basis of excluding all the POSO employees is section 1(1) of the POSO legislation, which provides that its purpose is to "borrow money by means of deposit". We are urged to find that once the Ministry of Finance gets the deposit, it has borrowed the money. Counsel says that POSO is not a separate agency; it is essentially a trade name for the Ministry of Finance operating as POSO.

62. The government submits that each deposit finds its way back to the CRF, but that nothing turns on whether the Board finds that it does so immediately or after a number of steps. In illustrating this process, counsel refers to the public accounts of Ontario, where the POSO deposits show up as liabilities. It is the government's position that the Customer Service Representatives (CSR's) are clerical positions in support of borrowing, or directly borrowing. There is a statement in the Public Accounts, 1995-6, which says "POSO.. offers demand and short term deposits and Guaranteed Investment Certificates to the public and deposits the proceeds into the Consolidated Revenue Fund". Regardless of whether the money is in the CRF immediately upon deposit in POSO, as the government submits, or later, unless a CSR accurately records each deposit, it is not available to the person who invests it for the Province. Thus, the CSR function is necessary to the activities of borrowing and investing, in the government's submission.

63. Counsel refers to the fact that the money is deposited in a POSO account at the Royal Bank, which is part of the CRF. The Financial Administration Act (FAA) defines the CRF as the aggregate of all public money - one public purse, which is the aggregate of all the little purses. Furthers. 19, provides that money raised by loan is a charge on the CRF. Public money is defined to include money raised by way of loan. It is received by public officers. This is a main defining part, as public money is referred to in a variety of statutes, submits counsel.

64. Mr. Loewen notes that the $2 billion raised through POSO is a significant amount which would have to be raised another way if those deposits were not available. Although it may be a different form of borrowing, this is still borrowing as defined by statute. Further, counsel submits that repayment of the debt, in the form of withdrawals, is an integral part of the borrowing function.

65. The government argues that CSR's act on behalf of the Minister of Finance in receiving money as borrowing, and the reverse, i.e. pay-back, when a depositor withdraws. They also sell Ontario Savings Bonds, which is another source of retail borrowing for the province. Other functions include rental of safety deposit boxes, and Ontario Home Ownership Transactions. Payment of all these activities will go through savings or chequing accounts which are liabilities and assets, borrowing of the Province. When clients purchase a Canada Savings Bond, the money does not belong to the Province, but the money goes through the Province's accounts, decreasing the liabilities of the Province. By virtue of section 19 of the FAA, repayment comes from the CRF. Counsel submits this is part of managing the assets and liabilities of the province, as well as borrowing on behalf of the Province.

66. It is the government's position that the CSR's are excluded by each of the three heads of para 14. It is said they are involved in borrowing and investing because they take money in and put it out, which affects liability, and that they are involved in managing the assets of the CRF, because the ins and outs of POSO accounts directly affect the CRF. To the extent the money is in the till of POSO, part of the CRF, activities in controlling that are part of managing assets and liabilities of the govern­ment. Alternatively, they are involved in clerical activity necessary to support the borrowing, in the government's submission, as the recording of transactions done by the CSR's is necessary to borrowing, although the word "necessary" is not part of the agreed statement of facts on this subject.

67. Anticipating the others' position that funds are not part of the CRF until they are surplus to the operation of POSO, the government takes the position that the definition of CRF is not limited to amounts in the Province's own accounts.

68. Counsel observes that the vast majority of the OFA was formed by transfer of the Office of Treasury's accounts - when the OFA started under CIPA. Before OFA, the Office of the Treasury was part of the Ministry of Finance. Each major bank has multiple treasury accounts. Counsel refers to the agreed fact that funds required to meet the operating needs of POSO are transferred daily from the treasury accounts to the POSO accounts. Counsel refers to the FAA s. 2(2) which provides that the accounts can be in the name of the agency. However, they are all Ministry of Finance accounts, all public money, in counsel's submission.

69. By contrast, it is OPSEU's position that the government has not proven the CSR's should be excluded. Mr. Eady underlines that para. 14 does not say either all OFA, or all POSO employees, as it could have, or everyone in the Ministry of Finance. Moreover, the language is qualified further, by phrases such as significant portion of the time, borrowing, investing, managing, including necessary technical and clerical support.

70. Counsel for OPSEU maintains that the government has not met the standard in the cases, which is to show a clear, rather than an incidental, connection to the purpose of the exclusion. Counsel refers to the trader whom they have agreed should be excluded, whose connection is to borrow, trade, invest and borrow. That is the level at which the legislature excluded, in counsel's submission. The language in paragraph 14, submits counsel, does not allow the government to say, as it is argued they have done in excluding these positions: "We wouldn't like a strike here, so everyone is excluded."

71. OPSEU counsel also submitted that the term "significant portion of the time" should be interpreted so that if a trader only trades 10% of the time, an assistant to the trader should not be excluded just because they are clerical, when it is only 10% of the time which is spent on the relevant excluded function.

72. Mr. Eady also submits that even if it is correct that at some level, everything in POSO is related to borrowing and investing for the province, which the union does not accept, there are a number of things that have nothing to do with either. Examples are clients paying utility bills, or Canada Savings Bonds, doing foreign exchange, buying a safety deposit box, buying a money order with cash, or traveller's cheques.

73. Counsel underlines the view that many things change hands before the money from POSO goes to the CRF. Mr. Eady refers to the public accounts which show that the net proceeds from POSO are deposited in the CRF. Further, the evidence shows that POSO has an account at the Royal Bank in its own name, not in the name of the Ministry of Finance. Counsel says that although it is not clear on the facts whether the money clears to the Head Office account and then to the CRF or directly from the 52 POSO branch accounts, what is going on is a number of transactions which remove the CSR's from necessary direct involvement. It is submitted that they are so far removed from the CRF and any direct link to borrowing or managing assets that the government is not able to establish a direct link. Any link is too indirect to warrant exclusion in OPSEU's submission.

74. OPSEU applies the above argument about the CRF equally to the issue of whether the CSR's invest or borrow for the province. Counsel argues that saying the CSR's borrow is simply a characterization of what they do for the government, an argument, not a fact, without a clear basis in law or the evidence. Counsel argues that there are a number of contra-indications in the material and that there is at least a notional division between POSO and the CRF. In particular, counsel submits that it is not clear that all POSO assets are part of the CRF, as the FAA and POSO legislation only say certain revenues and expenditures are paid out of the CRF.

75. Counsel for OPSEU refers to the definition of public money in the FAA, noting that the money goes through a number of transformations. The deposit to the teller may be given back out or be used for postage stamps, or be netted out and deposited to the Royal Bank. It is OPSEU's contention that it is only at that point that someone decides a net amount will be borrowed by the Province. Counsel submits that the evidence shows that the sequence is that money comes in, cheques are deposited to the Royal Bank and debited to it, and then there is a netting out of cash received against cash withdrawn. A decision is made whether to transfer money to a POSO account from Ministry of Finance accounts, or the reverse, depending on a forecast of POSO's daily needs. If the forecast is that more will be deposited than withdrawn, funds are transferred to Ministry of Finance accounts to either make payments on behalf of the Province or be invested by OFA staff for the Province until it is needed. If the forecast is wrong, money gets transferred back. The people who make these investment decisions, says counsel, make the exclusion, but not the tellers.

76. OPSEU counsel submits there are other indications that POSO money does not constitute part of the assets and liabilities of the province. Referring to section 16.5 of the FAA, counsel notes that ministry money held outside the CRF can be deposited into POSO. If everything was already part of the CRF, counsel queries why such a provision would be needed. As well, counsel refers to the fact that separate financial statements are prepared for POSO as an indication they are not all the same. The fact that funds are listed as receivable from the province, indicates they are different entities. Separate line items indicate net cash of $20 million, and Ministry funds of over $9 million, which could be funds referred to under section 16.5 of the FAA, or not, but in any event, there is no certainty that they are part of the CRF.

77. In counsel's submission, s. 17 of CIPA is a further counter-indication, because it indicates money belonging to corporations such as OFA may not be part of CRF until something else happens to it, and that despite the FAA, their revenues do not form part of the CRF. Counsel submits a further indication, is in the public accounts, which reflects the position of the province, but contains a note that "Funds on deposit with POSO are in turn deposited with the CRF of the Province." Counsel terms this an admission that it is only eventually that the funds become part of the CRF. Counsel notes that these are laid before the House and says one can assume there is an interest in the province stating things accurately to the House.

78. OPSEU counsel also makes reference to the OFA Annual Report in which the OFA corporate figures are shown distinct from those for POSO. He notes that the Balance sheet shows a separate line receivable from the Province of Ontario, as with the financial statements referred to above, and that the statement of Net Income and Retained Earnings shows interest revenue paid from the province to POSO, separately from expenditures by POSO to depositors and salaries. Counsel further submits that Note 3 to the financial statements, which say the deposits are part of the CRF, was produced after this dispute arose. He contrasts this with the OFA's 1994 Annual Report, produced prior to the dispute, which provides that "As at March 31, 1994, POSO held deposits of $2.0 billion, which were in turn loaned to the Province." Mr. Loewen interjected that he had no problem with the annual report, but that it may be a question of what has changed between then and the agreed statement of facts.

79. Mr. Eady refers to the fact that money is fungible and submits that the above is the structure which provides for a 2 or 3 step process before the POSO money becomes CRF money, in the absence of something that says all assets and liabilities of POSO are assets and liabilities of the CRF.

80. In sum, Mr. Eady submits that it is not clear enough that the CSR's are directly involved in borrowing or investing money for the Province or in managing the assets and liabilities of the CRF. Counsel characterizes this as an institutional and duties and responsibilities argument. At the branches employees are not engaged in either borrowing or managing. Thus, counsel urges a finding that there is no regular material involvement of the CSR's in investing and borrowing.

81. Counsel observes that the CSR job description at makes no mention of provincial revenue, assets or liabilities of the CRF. As well, he notes there are also other duties they do; they spend a significant amount of time dealing with things other than money directly. This is not a trader position on the phone cutting deals. We are urged to find that even if POSO has enough connection to the province, the CSR's role is incidental. Counsel submits that if you think of the link between the POSO clerk in Thunder Bay and the trader, it becomes a remoteness issue. Counsel urges us to look back at the language in the statute, the provision for a significant amount of time, and put that together with the fact that there is nothing about borrowing or lending in the job description.

82. Mr. Barrett added that section 2(3) of the FAA may mean that the CSR's collect or receive money, but that does not mean they are borrowing themselves. He asks us to imagine the absurdity of these tellers telling someone they borrow money for a living.

83. In reply on the issues relating to the role of POSO, employer counsel submitted that the fact that references in the various financial statements and reports as to OFA arrangements are stated in various ways, indicates no nefarious purpose. He submits there was an error in the first one referred to by Mr. Eady, a difference he attributes to the difference between a legal and accounting approach.

84. In any event, counsel stresses that the CIPA provides that POSO is an agent of the Ministry of Finance. He submits that when one acts as agent, the assets do not become yours. The fact that the agency is statutory rather than contractual does not change the fact that these are still assets of the CRF. Further, counsel underlines that section 4 of the POSO Act provides that all expenses and revenue of POSO are paid into the CRF.

85. Mr. Loewen does not agree that the qualifier "significant portion of the time" applies for the support people. He asserts that the only relevant qualifier for that category is necessary to these activities". He urges an interpretation that finds that the intention was to exclude anything necessary; it would not be consistent with that to say something necessary will not be there because it does not take up a significant portion of the time.

86. As to OPSEU's contention that the CSR's are not borrowing, counsel submits that all POSO money flows directly to and from CRF, so that even a credit card payment is part of the assets and revenues which go directly into the CRF. But more importantly, says counsel, this is incidental to the real issue which is that the statute, the POSO Act, says they are borrowing by deposit. Therefore all the CSR activities have to be part of borrowing. The main legal foundation is that their function is integral to borrowing because of the statutory provisions. Counsel also refers to s. 19 of the FAA which says that all money raised by way of loan and the interest thereon, is a charge on and payable out of the CRF.

87. In response to the argument based on section 17(3) of CIPA, counsel says that POSO is not part of the OFA, but an agent of the Ministry of Finance, and therefore section 17(3) does not apply, (i.e. revenues of P050 are not revenues of OFA, but of the Ministry of Finance.) He submits that POSO is part of the Crown, and OFA is the agent which operates it pursuant to section 30(1 )(d) of CIPA. POSO's revenue is then other revenues of the province. Counsel submits that in the OFA statements, OFA revenue may not be part of the CRF because of section 17(3), but POSO's revenue is, because of its statute. Mr. Barrett interjected that POSO and OFA corporate funds are listed together as total earnings in the OFA's financial statements. To this, Mr. Loewen responds by saying that the differences between legal and accounting purposes are clear.

88. As to the argument based on section 16.5 of the FAA, Mr. Loewen says the section simply allows money held outside the CRF to be deposited in POSO so that it becomes part of CRF. Employer counsel says that union counsel mischaracterize it as a two step process. Further, he notes that the word Ministry has a very broad definition here, including Boards and the casino corporation, for example. As to what constitutes public or Ministry money not in the CRF, counsel says that means assets of an agency not in CRF, such as money used in the Casino Corporation.

89. We have determined that the CSR's are not excluded from the applicant of CECBA by para. 14. In coming to this conclusion, we agree with and adopt the approach taken in the cases cited above, that it is appropriate to exclude only those people integrally involved in the functions listed. Indeed, the Legislature's choice of words "spend a significant amount of time" may be seen as something of a codification of that idea. This theme has cut across the categories considered in the jurisprudence on exclusions from collective bargaining. The unifying idea is that lower level involvement in an excluded function is not normally sufficient to warrant exclusion from collective bargaining, where the Legisla­ture's general intent was that employees would have access to collective bargaining. The various tribunals have required material involvement, independent decision making, authority or control in the area excluded. So, persons with incidental exercise of supervisory responsibilities or who operate at a level where there is not a significant focus of decision making are not excluded as managerial, (See Transair Ltd., 74 CLLC 95 (CLRB) and St. Clair College, cited above), those with clerical responsibilit­ies for payroll information are not excluded as confidential to labour relations (See Frito-Lay Canada, [1978] OLRB Rep. Sept. 831), those with junior responsibilities for financial matters are not excluded as those who formulate budgets (See the reference to the Ontario Public Service Labour Relations Tribunal's decision in file 1612-78-M the "Dean case" in St. Clair College, cited above). Paragraph 14 does not deal with the traditional "conflict of interest type criteria", but the precedents are useful in the manner indicated.

90. In our view, the appropriate extension of the jurisprudence, cited above, to the financial exclusion in paragraph 14, requires there to be meaningful involvement at work in the decision making activity involved in borrowing, investing or managing assets in order to find that CECBA does not apply. In our view, this means involvement in committing the Province or the CRF financially to a borrowing or investment transaction, or a significant role in making decisions about, as opposed to implementation of others' decisions about, the management of the assets of the CRF. Managing assets means, in our view, decision making directed at maximizing assets and minimizing liabilities, as well as meeting obligations under financial commitments made. And in order to be excluded by the related support services exclusion, the job tasks required should be immediately related to the ability of those who meet the financial exclusion to carry out the activities which are the focus of the exclusion. Applying the ordinary meaning of the word necessary, the function of the support person must be one without which the primary person cannot carry out his or her activities of borrowing, investing or management of assets. Given that the overall purpose of the statute is to extend collective bargaining rights, we are of the view that it would not be appropriate to exclude everyone needed by the organization, in the more general sense that everyone employed by the OFA is no doubt considered necessary to the organization in some way. Rather, in our view, the appropriate purposive interpretation requires that the threshold be whether the support person is necessary to the performance of the core activities which are the focus of the exclusion.

91. We start with the agreed statement of facts in regards to the CSR's job duties and their job description. It is clear that the actual content of their jobs, and the skills, abilities and qualifications necessary to do them, do not call on them to borrow, invest, or manage assets. The CSR's accept and pay out funds, make records of transactions, and perform a myriad of clerical tasks. Their job description summarizes these as banking and cashiering services. This is usefully contrasted with the job description of the trader who is now agreed to be properly excluded. That job description includes duties such as the execution of financial transactions, as well as requiring experience in transacting financial instruments, advanced negotiating skills and independence for decision making.

92. In applying the general concepts discussed above to the question of whether the CSR's are encompassed by the paragraph 14 exclusion, the description of their duties as a cashiering function clarifies the situation. Although some of the cash they take in will be part of the Province's debt burden, their role is a front-end one. A cashier is necessary to the operation of a retail endeavour of any kind, and the cash which they handle will be necessary to the survival of the operation. This is no less true of POSO than of a grocery store. But the grocery cashier does not make decisions in regards to borrowing, investment, and management of assets which commit the enterprise financially. Nor do the CSR's. It is in this sense that we find that they are not encompassed by the financial exclusion.

93. Mr. Loewen argued, as we have noted, that the overall function of the OFA, and POSO, requires that the CSR's be found to be involved in borrowing, investing or managing assets. It is clear that one of the functions of POSO is to attract funds for borrowing and subsequent investment on behalf of the Province. But the wording of paragraph 14 focusses much more locally on specific persons, with specific work functions. Just as those who do inventory, shipping and receiving for XYZ Manufacturing Inc. are not themselves manufacturing, although the enterprise certainly is, we do not think the receipt of money by the CSR's makes their job one of borrowing, investing or management of assets.

94. We take a similar view of the arguments made on the combined effect of the POSO Act, the FAA and the CIPA. There is no doubt that one of the things the Minister of Finance is achieving by having POSO operated by the OFA is borrowing for the Province. The agreed facts make that clear. Nor is there any question that money handled by the CSR's is public money, even if the unions are correct that it is not actually part of the CRF until it leaves the POSO system, or its branches. In that respect the CSR's are agents of the Crown, and accountable for the money they handle. But it must be kept firmly in mind that our task is to interpret CECBA, a statute focussed on collective bargaining, which defines an exclusion in terms of the activities of particular persons at work. It does not define the exclusion in terms of the structural mandate or corporate functions of a whole agency as defined by statutes like the CIPA and the POSO Act. And in our view, to so interpret it would be to divorce the interpretation of CECBA from the actual activities performed at work by the people in question and the wording of paragraph 14, which focuses on activities at work. The wording could have drawn the exclusion at the corporate level, but did not. Mr. Loewen suggested the preamble of CIPA as a useful starting point. We are of the view that the preamble makes clear that CIPA's purpose is to structure centralized provincial corporations. There is nothing to suggest that statute had labour relations objec­tives at all. And our interpretation of CECBA does not conflict with CIPA. Rather it focuses, as directed by para. 14, on actual work function.

95. But what of the support services exclusion? Are the CSR's not persons employed to provide technical, specialized or clerical services necessary to the activities which are the focus of the exclusion? A close look at the structure of paragraph 14 warrants a finding that they are not the object of this portion of the exclusion either. Only persons whose functions are necessary to the activities caught by the financial exclusion are excluded by the support staff exclusion. What are those activities? The activities referred to are spending time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the CRF. There is no evidence that anyone employed to borrow, invest or manage assets and liabilities of the CRF requires the CSR's services in order to carry out the activities which are the focus of the exclusion. The evidence supports a finding that without an inflow of cash from POSO, the Province would have to borrow the same amount elsewhere. But those who do the borrowing and investing could still borrow and invest without the CSR's, albeit through a different borrowing or investment strategy. Those who manage the assets and liabilities of the CRF could do so, albeit perhaps with a lower bank balance. In the result, we find that the CSR's are subject to the application of CECBA.

Manager. Administrative Services - AMAPCEO

96. The person in the position of Manager, Administrative Services provides managerial and administrative services for POSO, principally in the area of cash management, budget preparation and control, financial and accounting administration, personnel, records management, accommodation, purchasing and interest rate administration. The person in this position also monitors the 52 POSO corporate accounts daily to ensure the combined balances are close to zero balance to avoid interest or overdraft charges and to maximize the amount transferred to the Treasury Accounts. Other functions of the position include monitoring the purchase and sale of appropriate amounts of U.S. currency for POSO branches, various accounting functions, tracking interest rates and recommending the rates that the Province will pay to POSO customers. As well, this manager is responsible for the day to day administration of the Head Office of POSO, including the supervision and co-ordination of the activities of the Head Office staff and the provision of various support services such as purchasing, mail processing and accounting services. Further, he or she may be called on to replace the branch manager.

97. The majority of the duties listed in the job description have to do with the administration of the POSO Head Office itself - budgeting, controlling branch expenditures, monitoring manpower and budget, coordinating support services, such as printing, office supplies and mail, giving day to day personnel advice to Branch managers, supporting the director in development and implementation of Branch priorities and administrative policy, troubleshooting for the on-line system, replacing branch managers in an emergency, doing performance appraisals for subordinate staff. Qualifications include particular expertise in financial analysis and preparation of budgeting estimates. The job description sets out the exercise of judgment in a variety of functions.

98. For the government, Mr. Loewen submits that this function is one of cash management relating to POSO as a whole. Part of the role is maintaining the flow of money between the treasury accounts and the POSO accounts.

99. For AMAPCEO, Mr. Barrett submits that nothing hinges on the words "cash management" in the agreed statement of facts. This manager monitors accounts and performs purchasing and accounting functions, in counsel's view. As to the tracking of interest rates, there is no information as to how much time is spent on that, so no basis to find that there is a significant amount of time on it. There is no basis to simply state that all of these functions are managing assets for the significant proportion of time required by the statute. Counsel submits that the onus on the government to show that has not been met. Further he submits that processing, collating, and checking does not amount to managing assets, and the money is not part of the CRF.

100. Counsel for AMAPCEO notes that this employee is one step up from the Branch and does send money off to the CRF, but does not manage it just because he is sending it off.

101. There are certain problems in categorizing this position in terms of the para. 14 language. Firstly, the incumbent performs a great variety of functions, some of which are quite remote from the core functions which are the object of the exclusion, such as purchasing office supplies and performing routine personnel functions which include maintaining records and scheduling vacations for staff. Others, however, such as cash flow management on the movement of funds on a daily basis between Treasury and POSO and recommending the interest rate the Province will pay on deposits and other financial products, are much more closely related to the core functions of borrowing, investing and managing the CRF. Although there is no evidence in the evidence to conclude how much time is spent on the process of recommending the interest rate, the cash flow management function is listed as a major responsibility.

102. There is no evidence that the Manager, Administrative Services is making borrowing, or investment decisions in the sense outlined above of committing the Province financially. In terms of the heading managing the assets and liabilities of the CRF, he is involved in cash management aimed at maximizing what is transferred to the treasury accounts. No argument was directed to the question of whether POSO itself, or its head office, is an asset of the CRF, but rather to whether or not the funds in POSO are part of the CRF. For the Manager position, the main question is whether the function of monitoring and tracking of the cash which flows into the treasury funds to maximize the amount going to treasury is properly characterized as managing the assets and liabilities of the CRF. We find that it is.

103. Our reasoning for this starts with the fact that all parties accept that overall net POSO deposits become a liability of the CRF. This can be demonstrated in the various statutes. For example, section 19 of the FAA provides that all money raised by way of loan is a charge on the CRF, and subsection 1(4) of the POSO Act requires all POSO revenue to be paid into the CRF as well as making the CRF ultimately responsible for POSO's expenses. Although these provisions do not solve the problem of exactly when any particular funds deposited to POSO become deposited in the CRF, they underline the structural nature of POSO's raison d'etre - to provide funds to the government, borrowing from depositors as one form of borrowing to meet the Province's financial needs. The evidence provides the basis for a finding that for various purposes, such as Note 4 to the Public Accounts,or subsection 1(4) of the POSO Act, or section 16.5 of the FAA, money is considered as not immediately in the CRF, but subject to be deposited into it. However, this does not change the fact that the overall POSO operation is a liability of the CRF, both by law under the POSO Act, and as reflected in the public accounts which lists the deposits as a provincial liability. Nor is the situation changed by the fact that separate books are kept for POSO, and that they have their own financial statement which lists money as receivable from the Province. The agreed facts, and the statutes, demonstrate that POSO is not a separate entity apart from government, albeit it is operated by a Crown corporation as the government's agent. As to section 17(3) of CIPA, it is clear that OFA revenues are not part of the CRF but that they may be ordered to be paid into the CRF, pursuant to subsection 17(1). However, there is no evidentiary basis to counter the fact on which Mr. Loewen relies in answer to the unions' arguments about subsection 17(3), i.e. that the assets of POSO are not those of the OFA, but rather those of the Minister of Finance, managed on his behalf by the OFA. The fact that the OFA financial statements melds POSO and OFA funds for some purposes does not counter the basic structural reality.

104. The fact is that the net proceeds of POSO are clearly a provincial liability. This is the essential one for considering what the Manager of Administrative services is doing when monitoring the POSO accounts and performing cash management to maximize what is transferred to the Treasury accounts. It is our finding that this function is short term management of a liability of the CRF in that the decisions made while performing this function directly affect the size of the liability the CRF will receive from POSO. As to whether a significant amount of time is spent on this function, the evidence is not particularly clear. However, the cash tracking is listed as a major responsibility. In the absence of conflicting evidence we find that to be sufficient to meet the threshold of "significant". When put together with the function of recommending interest rates to he paid to POSO depositors, which directly affects the province's liability, we are of the view that this position is properly excluded. Given the nature of many of the other duties, it is appropriate to note that without the functions of cash tracking and recommendation as to interest rates, this position would not meet the paragraph 14 exclusion.

Financial Officer - Swaps, Recording and Payment - OPSEU

105. This position is included in the Accounting and Settlement section of the OFA's Capital Markets Treasury Division. Generally, the settlement staff

• ensure that debt risk management and investment transactions occur at the required time on the specified date,

• receive information as to the terms of these capital markets transactions as soon as the transactions are entered into, confirm them with the counterparties and enter them into the accounting system, including opening a payment file,

• initiate payment procedures and ensure that payments are made on time, and

• reconcile accounts and ledgers for capital markets transactions and other accounts within the CRF.

106. A Swap is a derivative financial product used to hedge risk. The persons filling the position of Financial Officer - Swaps are responsible for the confirmation, computer entry and monitoring of the details of specific transactions through to settlement to ensure completion of the transaction. The functions are performed in support of the trading activities of the Capital Markets Division, which is responsible for carrying out the Province's borrowing, risk management and investment programs. It requires judgment and initiative in dealing with financial institutions, in situations such as suggesting improvements to software. A good knowledge of Financial and accounting practices, government accounting, capital market activities and various complex financial instruments is required. People in this position are accountable for the timely completion of thorough and accurate work to eliminate the possibility of serious financial loss or embarrassment to the Province.

107. The Job description for this position states that the incumbent administers the derivative products portfolio to ensure appropriate financial control, reporting and accounting for transactions undertaken by Capital Market traders.

108. The government maintains that all swap functions are an integral part of borrowing. Mr. Loewen notes that the people in each of the financial officer positions take a particular type of instrument and make sure the transaction involved happens when it should; they back each other up. In the alternative, if it is not borrowing, it is clearly a clerical service necessary for borrowing, in counsel's submission. Some of the functions are part of managing the assets of the CRF; either way the position ends up excluded, in counsel's view.

109. In support of including the position in the bargaining unit, Mr. Eady underlines that unlike traders, these financial officers do not make the deals, or do the transactions. Their function comes after, checking that the transaction is carried out, based on reports. Counsel argues that there are some practices in which they engage which could be characterized as investing or managing assets, such as liaising with counterparties, but there is no evidence about how much time is spent on them. Nor is there sufficiently clear evidence to exclude them, as dealt with in the St. Clair College case, cited above. In the union's submission, it is insufficient to exclude them just because they are part of the integrated whole known as the OFA. Given the serious consequences of exclusion, and the lack of clear evidence of the criteria being met, OPSEU counsel argues that the government onus has not been met.

110. We are not of the view that these financial officers spend a significant amount of time at work in borrowing or investing money for the Province. This is because they are not committing the Province financially; they do not engage in transactions themselves. Are they managing the assets and liabilities of the CRF? They are certainly performing functions that are part of the management of the liabilities of the CRF. However, there is no evidence to warrant a conclusion that they are managing assets and liabilities in the sense of playing any decision making role in management of the assets and liabilities of the CRF.

111. Are the financial officers employed to provide technical, specialized or clerical services necessary to the activities at which the financial exclusion is directed? The financial officers provide financial control, reporting and accounting for transactions undertaken by the Capital Market traders. It appears that the functions undertaken by the people in these positions are accurately captured by "specialized services necessary to these activities". The financial officer - swaps is not managing in the sense of making financial decisions, but is spending his time making sure that what the fund managers and traders decide actually happens. The connection between the transactions done by the traders and the monitoring of their implementation by the financial officers is sufficiently close to warrant the conclusion that their function is necessary to the management of these liabilities of the CRF by the persons either making the borrowing decisions or related decisions as to management of the resulting debt. It does not have the aspect of remoteness from the decision making functions involved in borrowing, investing and managing assets and liabilities that the duties of the CSR's have.

112. Mr. Loewen argued these positions could be considered clerical in support of borrowing. There are some aspects of the work which are clerical, but the liaising with the counterparties, troubleshooting for the computer system, accounting and financial monitoring aspect of the work distinguishes it from purely clerical in our view. Either would be sufficient to exclude it from the application of CECBA in any event.

113. We have considered Mr. Eady's argument that the evidence is not sufficiently clear to exclude these financial officers when viewed in the light of the standard set by St. Clair College, cited above. Although we agree that it is not sufficiently clear to exclude them under the heads of borrowing, investing or managing the liabilities, because these officers are not engaged in the necessary decision making, we found the agreed statement of facts sufficiently clear to come to the conclusions we have made, in the absence of conflicting evidence. We therefore find the position of Financial Officer -SWAPS is not subject to the application of CECBA.

Project Manager (Capital Markets Programmer) - AMAPCEO

114. The disputed position of Project Manager (Capital Markets Programmer) (AMAPCEO) is in the Systems Support Section of the Risk Control division of the OFA. Staff in the Risk Control Division are responsible for monitoring the OFA's borrowing, investing and risk management transac­tions. This is done in order to measure and report risk levels, to ensure compliance with the Province's limits on risk and public debt interest expense, and to monitor performance of the OFA's borrowing and investing activity for the Province. Risk Control staff also monitor and forecast the Province's public debt interest expense. Staff in this division also monitor and report changes in the credit ratings of parties to capital markets transactions to responsible staff. Risk Control staff also liaise with the Province's credit rating agencies to secure the highest rating possible for the Province, thereby minimiz­ing its borrowing costs.

115. The OFA's systems branch is included in the Risk Control Division. Systems staff are responsible for identifying, acquiring, and maintaining all information technology required by the OFA in order to carry out its mandate. This includes the OFA's computer hardware, system software, communications technology and special application software. The work of this section involves a significant amount of development by systems staff of specialized programs required for the OFA's activities. These include programs to support the management of POSO deposits, cash management and banking, debt issuance and investing, measuring risk, and accounting for and reporting capital markets transactions.

116. It is agreed that the Project Manager is directly involved in the design and management of production systems in the OFA and identifying, evaluating and implementing technology solutions, including new computer application systems and the development of software appropriate for the OFA's activities. Another function of the person in this position is to educate and train end-users as well as to evaluate the performance of staff. Software created by the incumbent allows staff to analyze borrowing plans to determine their respective impact on the Province's liquid reserve portfolio at any point in time. The incumbent reports to the Manager, systems.

117. For the government, Mr. Loewen points out that part of the agreed statement in regards to this position is that "sophisticated technology is necessary to provide staff with the information necessary to evaluate, record and process individual transactions and to monitor and evaluate the overall financing activities of the OFA." This particular incumbent does actual programming, encoding specifically for the OFA. Counsel observes that the specifics of the agreed statement show that it is his primary role to create new applications or adapt something from a third party to the OFA's particular needs. Counsel submits that for the Capital Treasury division in particular, it is necessary to managing the assets of the CRF as well as specialized technical support necessary to these activities. He elaborated in some detail on the impossibility of doing risk analysis, which is involved in all borrowing transactions, without the support of people like the person in this position.

118. For AMAPCEO, Mr. Barrett submits that the government has conceded that the person in this position is not managing money. Rather the employer relies on the last clause in paragraph 14 "including persons employed to provide technical, specialized or clerical services necessary to those activities." Simply put, Mr. Barrett says, the argument is that you need computers to do this work, but he questioned whether that was the concept captured by the closing language of para. 14. Counsel acknowledges that it is open to the Board to include these positions on the language of para. 14, but submits that these people are not borrowing, investing or managing assets properly interpreted. Further, counsel says the government has not met its onus to prove that the incumbent spends a significant portion of time on the excluded activity.

119. AMAPCEO's position on the support positions is that the OFA may all be integrated but the language of the statute calls for breaking it down into separate functional components. If someone is doing the function of borrowing, trading, one should look to see if there is someone directly working with them. We are urged to limit the exclusions to the functions listed, asking the question: is the work of the support person necessary to the function? We are urged not to exclude everyone who works with computers on the broad basis that computers are necessary in this day and age. In counsel's submission, this Systems person performs a completely separate function from the intended exclusions.

120. This programmer provides technical support to both the capital markets and capital markets treasury divisions. His programs are tailor made to assist staff in those divisions who perform risk analysis and make decisions about timing of hedging transactions. The parties have agreed that sophisticated technology is necessary to provide staff with the information necessary to evaluate, record and process individual transactions and to monitor and evaluate the overall financing activities of the OFA. The question is whether this is sufficient to exclude this person as necessary to the borrowing, investing or management of the assets and liabilities of the CRF. There are aspects of this position that are not strictly speaking necessary to these activities, such as staff education, and evaluation. However, given the overall thrust of the position is to tailor make tools to analyze risk, it seems it is a position that is necessary to the management of the assets and liabilities of the CRF. We find it properly excluded as specialized, or technical service, necessary to the performance of the excluded activities.

Banking Funding & Fiscal Agency Supervisor - AMAPCEO

121. This position forms part of the Cash Management section of the capital Markets Treasury Division also known as the "Capital Markets Support Division". The Cash Management section must ensure that adequate funds are available daily in the appropriate bank accounts to meet the cash requirements of the Province and the OFA. The incumbent is responsible for accessing the Province's various bank accounts, to obtain the previous day's actual ending balances and debits and credits. He also downloads information from banking systems relating to cheques cashed on CRF accounts, updates the preceding day's cashflow forecast to reflect actual cash flows, reviews and confirms variances and revises the current day's and the short term forecasts. This includes ensuring that banking transactions have taken place as planned and resolving with the banks any problems identified with the accounts. He liaises with the Taxation Data Centre of the Ministry of Finance and other ministries to resolve discrepancies between forecast cash flows and those shown in the province's bank accounts. He assigns projected cashing dates for large cheques to minimize premature funding of CRF accounts and liaises with agencies for whom the OFA is borrowing, e.g. in relation to the expansion of the Ontario Science Centre, to determine when funds are needed. He is responsible for transferring funds, in amounts determined by the cash management officer (for whom he sometimes acts as back-up), between bank accounts as necessary. He has primary responsibility for maintaining the cash forecasting system including determining appropriate data for entry into the system and providing daily analysis of cheque cashing patterns for forecasting purposes. He coordinates the purchase and deposit into the CRF of surplus U.S. dollars from the Ontario Casino Corporation, which are invested or otherwise used by the OFA, in carrying out its risk management strategy or in payment of U.S. liabilities.

122. In support of the exclusion of this position, Mr. Loewen submits that this person is involved in managing the assets of the CRF in the short term to ensure that accounts are adequately funded. Counsel says this also amounts to borrowing, because in the process of determining ins and outs, he determines what money is left over. His other duties are part of the clerical functions necessary to manage the Province's accounts.

123. For AMAPCEO, Mr. Barrett submits that the incumbent keeps the books, and worries about discrepancies, but does no borrowing. He acknowledges that this position deals with the CRF; it is not part of POSO. Counsel describes the position as initiating and monitoring banking transactions. Counsel queries whether it is managing assets to do short-term supervision of accounts and passing on of information.

124. In reply on this position, Mr. Loewen maintained that short term managing is crucial, and certainly part of managing assets, since if all you do is a long term analysis it will not work. Management of the assets has to get down to the day-to-day, and thus should encompass this position. Counsel submits that in the integrated world of government finance, short and long term managing are equally integrally related.

125. As to the unions' arguments that there were no indications as to the proportions of time, Mr. Loewen says that the proportion of time is clear on the agreed statement of activities as some of them give percentages; some list major responsibilities.

126. Having considered the duties of this account supervisor, we are of the view that CECBA does not apply to the incumbent as he is properly excluded as a person employed to provide specialized services necessary to the managing of the assets and liabilities of the CRF. It is conceded that we are here dealing with the CRF; the main duties of this position relate to monitoring of cash accounts to optimize interest earnings and minimize premature payments, which might trigger unnecessary liabili­ties. We are unable to find on the evidence that he is spending a significant amount of time managing the assets and liabilities himself. Rather he is electronically initiating and monitoring banking transac­tions to which others in the OFA have committed the Province. Although the function of assigning projected cashing dates for large cheques would fall within the category of managing the assets in our view, this is not listed in the job description or elsewhere in a manner which would allow us to make a finding as to the amount of time spent on this activity. Nonetheless, he carries out large financial transactions on behalf of the province and its Crown employees. In this respect he is performing functions which appear directly necessary to the implementation of investment decisions made by others. In resolving issues around timing and the manner of receipt and inflow of funds, for instance, he is also performing functions necessary to the implementation of decisions about the management of the assets of the CRF. Therefore we find this position excluded.

127. To summarize then, we find that the following positions are excluded from the application of CECBA pursuant to paragraph 14 of section 1.1(3) of CECBA:

• Financial Officer - Swaps

• Manager of Administrative Services - POSO

• Project Manager (Capital Markets) Programmer

• Bank funding and Fiscal Agency Supervisor

• On agreement, Money Markets and Foreign Exchange Analyst Trader.

The POSO customer service representatives are not excluded.

127. We will remain seized to deal with any issues regarding the implementation of the above decision which the the parties are unable to resolve themselves.

APPENDIX

From the Capital Investment Plan Act (CIPA):

Preamble

The Government of Ontario has announced a capital investment plan for Ontario under which the Government, municipalities and other public bodies, and the private sector will work together to make significant investments in the prov­ince's infrastructure. Under the capital investment plan three new Crown agen­cies will be established and a fourth will be revitalized. These agencies will have responsibilities in the areas of provincial investment and financing programs, transportation projects, sewer and water projects and the management of the provincial land and building inventory. Legislation is required to establish the new Crown agencies and to continue the Ontario Land Corporation as the Ontario Realty Corporation. Complementary amendments were required to sev­eral Acts to implement the plan and to provide for certain other matters related to the financial administration of the Province of Ontario.

2.-(1) The following are established as corporations without share capital:

1. A corporation to be known in English as the Ontario Financing Authority and in French as the Office ontarien de financement.

2. A corporation to be known in English as the Ontario Transporta­tion Capital Corporation and in French as the Socièteè d'inves­tissement dans les transports de l'Ontario.

3. A corporation to be known in English as the Ontario Clean Water Agency and in French as the Agence ontarienne des eaux.

17.-(l) When ordered to do so by the Minister of Finance, a corporation shall pay into the Consolidated Revenue Fund such of its surplus funds as are deter­mined by the Minister of Finance.

(2) In determining the amount payable under subsection (I), the Minister of Finance shall allow such reserves for the future needs of the corporation as he or she considers appropriate, and shall ensure that the payment ordered under subsection (I) will not impair the corporation's ability to pay its liabilities, to meet its obligations as they become due or to fulfil its contractual commitments.

(3) Despite the Financial Administration Act, the revenues and investments of a corporation do not form part of the Consolidated Revenue Fund.

30.-(l) Without limiting the powers or capacities of the Authority, its objects include,

(a) assisting public bodies and the Province of Ontario to borrow and invest money, developing and carrying out financing pro­grams, issuing securities, managing cash, currency and other financial risks, and providing such other financial services as are considered advantageous to the Province or and public body; and

(b) operating, as agent for the Minister of Finance, either directly or through its authorized agents, offices as provided under the Province of Ontario Savings Office Act and regulations thereunder, and offering such services to the public as the Minister may direct.

From the Financial Administration Act (FAA):

Definitions

1. In this Act,

"public money" means all money belonging to Ontario received or collected by the Minister of Finance or by any other public officer or by any person authorized to receive and collect such money and includes,

(a) special funds of Ontario and the income and revenue therefrom,

(b) revenues of Ontario,

(c) money raised by way of loan by Ontario or received by Ontario through the issue and sale of securities, and

(d) money paid to Ontario for a special purpose; Public money to be deposited

2.—(l) Subject to this Part, all public money shall be deposited to the credit of the Minister of Finance.

Establishment of bank accounts

(2) The Minister of Finance shall establish in the name of the Minister of Finance, and may authorize an agency of the Crown to establish in the name of the agency, accounts with any bank, trust corporation, co-operative credit society, credit union, caisse populaire, credit union league or caisse populaire league that is designated by the Minister of Finance for the deposit of public money.

Duty of person collecting public money

(3) Every person who collects or receives public money shall pay all money coming into the person's hands to the credit of the Minister of Finance through such officers, banks or persons and in such manner as the Minister of Finance may direct, and shall keep a record of receipts and deposits thereof in such form and manner as the Minister of Finance may direct.

Exception

(4) Despite subsection (3), the Minister of Finance, on any conditions he or she considers appropriate, may in writing authorize a person who receives or collects public money to retain out of such public money all or any part of any amount owed by the Crown in right of Ontario to the person and payable from the Consolidated Revenue Fund.

Same

(5) An amount properly retained pursuant to an authorization under subsection (4) shall be deemed to have been received by and paid from the Consolidated

Revenue Fund in respect of the person to whom the authorization under subsec­tion (4) was given.

Deposits in Province of Ontario Savings Offices

16.5—(1) Despite any Act or regulation, every ministry may deposit in any Province of Ontario Savings Office money held outside the Consolidated Reve­nue Fund and belonging to it or held by it in trust for the Crown.

Money raised a charge on Con. Rev. Fund

19. All money raised by way of loan and the interest thereon and the principal amount of an interest and premiums on all securities issued are a charge on and are payable out of the Consolidated Revenue Fund.

From the Province of Ontario Savings Office Act (POSO Act):

Powers of Minister to Borrow

1 .( 1) The Minister of Finance may borrow money by means of deposits in any amounts and from any person and may authorize any corporation incorporated as an agency of the Crown to open and operate offices for this purpose at such places in Ontario as the Minister may direct.

Corporation may appoint agents

(2) A corporation referred to in subsection (I) may appoint an agent to operate any office that it is authorized to open or operate under subsection (1).

Money subject to attachment

(3) Money deposited under this section is subject to attachment in the same manner as money deposited in a bank named in Schedule I or II to the Bank Act (Canada).

Expenses and revenues

(4) All expenses incurred in the administration of this Act shall be paid out of and all revenue paid into the Consolidated Revenue Fund.