Ontario Public Service Employees Union v. The Crown in Right of Ontario (Management Board of Cabinet and Ministry of Correctional Services), 2000 CanLII 13604

Ontario Public Service Employees Union v. The Crown in Right of Ontario (Management Board of Cabinet and Ministry of Correctional Services)

File No.: 2094-00-U Date: December 21, 2000 Ontario Labour Relations Board

Before: Harry Freedman, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

Appearances: Ronald Davis and Barry Scanlon for the applicant; Leonard Marvy and Malcolm Smeaton for the responding party.

DECISION OF THE BOARD

1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the "Act") to enforce a written settlement the parties had executed on July 18, 2000 and which was incorporated into a decision of the Board dated July 21, 2000 in Board File Nos. 2888-99-OH and 2895-99-U. It is the applicant's position that the responding party violated that settlement (and continues to act in violation of that settlement) by seeking to contract out the responsibility for providing community escorts for inmates in respect of the new Penetanguishene Correctional Facility that is to be operated by a private sector employer. The applicant seeks declaratory relief and mandatory orders to compel the responding party to comply with the settlement. The responding party asserts that settlement did not apply to any offender transportation services (including community escorts) connected with the new private Penetanguishene Correctional Facility.

2The responding party did not suggest that the Board did not have the authority to make the declaration and orders sought by the applicant. Indeed, it is clear that section 96(7) of the Act applies to the circumstances of this case. Section 96(7) provides, in part:

Where a proceeding under this Act has been settled… and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties…and shall be complied with according to its terms, and a complaint that the…employer…who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

The written settlement resolved both a proceeding under the Act and a proceeding under section 50 of the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1 ("OHSA"). A complaint under 96(1) of the Act is a complaint alleging a contravention of the Act. Section 50(3) of OHSA provides that section 96 (except section 96(5)) of the Act applies to a complaint under section 50 of OHSA. Therefore, a complaint alleging a violation of a written settlement resolving an application under OHSA and an application under the Act may be dealt with as if it was a complaint under section 96 of the Act. Section 96(4) of the Act provides, in part:

…where the Board is satisfied that an employer…has acted contrary to this Act it shall determine what, if anything, the employer…shall do or refrain from doing with respect thereto and such determination may include…

(a) an order directing the employer…to cease doing the act or acts complained of;

(b) an order directing the employer…to rectify the acts complained of

In this application we must therefore determine if the responding party acted contrary to the written settlement the parties had entered into on July 18, 2000 since we must replace the word "Act" in sections 96(1) and 96(4) with the word "settlement" by virtue of section 96(7) of the Act. We are therefore satisfied that section 96(4) of the Act gives us the authority to make the declaratory and mandatory orders that the applicant seeks should we determine that the responding party has, in fact, acted contrary to the written settlement.

3The parties to the written settlement were the applicant and the responding party in this proceeding. The text of the settlement as set out in the Board's July 21, 2000 decision provides, in part:

1. The Responding Party will cease and desist from proceeding further with the contracting out process for offender transportation services as announced in the letter to all staff from Assistant Deputy Minister John Rubeau [sic] and Morris Zbar dated November 19, 1999 and the letter to all staff dated November 25, 1999 from Minister of Correctional Services Sampson.

2. The Employer agrees that offender transportation services will continue to be performed by public servants who are members of the OPSEU bargaining unit correctional category in accordance with the Orders of the Adjudicator in Decisions Nos. 98-05 and 98-05A, as implemented through the agreement of the parties through the mediation/arbitration process set out in Decision #98-05A.

3. This agreement constitutes a settlement of the Applicant's proceedings in OLRB File Nos. 2895-99-U and 2888-99-OH and may be enforced by a hearing before the Board to be held within 21 days of a request for a hearing by either party.

4. The Responding Party will cease and desist from proceeding further with the contracting out process for offender transportation services initiated in November, 1999 for a period of two years from the signing of this settlement. Should the Responding Party decide to proceed further with the contracting out process after the expiry of this period, the parties agree that this agreement shall not be construed as an agreement by the Applicant that the Responding Party may pursue contracting out and the Applicant retains the right [sic] take any legal proceedings it deems necessary to oppose the Responding Party's decision.

The relevant portions of the November 19, 1999 letter referred to in paragraph 1 of the written settlement provided:

The Government has announced its intention to seek public-private partnerships in a number of areas of correctional service delivery.

Areas to be pursued for private sector involvement include:

• The operation of the new, 1200-bed Penetanguishene correctional facility (not all new facilities, as rumoured);

• Offender transportation services

• Expanded strict discipline programming

• Food preparation in the new Cook/Chill facility at Maplehurst Correctional Complex

• Trilcor Industries

There are many details around these initiatives that are yet to be worked out. While uncertainty can be difficult to deal with, this announcement has brought a measure of clarity that will help some staff make decisions about their future.

The relevant parts of the Minister's letter of November 25, 1999 stated:

Over the last few months, each ministry has reviewed its programs to see if they continue to be relevant, responsive and delivered in a cost-effective way. As we conducted this exercise, we were mindful of the fact that public safety is this ministry's top priority. The results of this review were announced last Thursday, November 18th. It is important for me to know that you know what we announced, and so my purpose in writing to you today is to outline the changes, and the rationale behind them.

• Offenders in jails and detention centres will receive only basic "no frills" services such as meals, exercise and fresh air, chaplaincy and volunteer services during daytime hours, and medical treatment as required. We are eliminating organized recreational activities for remanded inmates….

• The strict discipline correctional model pioneered at Project Turnaround will be expanded to greater numbers of sentenced offenders. Strict-discipline programming provides a no-nonsense, structured environment for offenders which emphasizes personal accountability and responsibility for one's actions. It sends the message that breaking the law brings meaningful consequences. We will focus on our core businesses of incarceration, rehabilitation and community supervision, and we will look to partner with the private sector in the areas of food preparation, correctional industries, and prisoner escorts. Regardless of who delivers these services, the service provider must meet high standards for safety, security and efficiency.

• We will also expand the use of video remand whereby offenders can make brief court appearances by video conferencing. This will mean offenders will remain within the secure custody of our institutions, thereby minimizing the opportunities for escape and keeping the public safe.

• Lastly, we announced that we will be looking to partner with the private sector in the operation of our new super jail in Penetanguishene. But before we move in this direction, we will establish high standards of performance in the areas of safety, security and efficiency that will apply to the operators of all institutions in our system. The operator of the Penetanguishene facility will be required to meet these standards. We will challenge both public and private operators to deliver services to these standards. We feel the resulting competition is sure to bring improvements across the system.

4The applicant's position is straightforward. The applicant claims that the responding party, in a memorandum to all staff from John F. Rabeau, Assistant Deputy Minister, Adult Institutional Services dated August 2, 2000 regarding "Public-Private Partnership for Offender Transportation Services" expressed a clear intention to contravene the settlement, and the subsequent Request for Qualifications in respect of the Penetanguishene Correctional Facility (the "RFQ") carried through that intention. The first paragraph of Mr. Rabeau's August 2, 2000 memorandum stated:

On July 18th, the ministry confirmed with OPSEU that it had elected to re-schedule its review of a public-private partnership for offender transportation services for a period of two years. This postponement of a public-private partnership for offender transportation service does not preclude privately-operated facilities from assuming responsibility for providing community escorts for inmates under their care and control. In the meantime, the ministry will continue to examine ways to deliver offender transportation services in a safe, efficient and effective way.

The reference to July 18th in Mr. Rabeau's memorandum related to the settlement agreement that the parties had entered into on that date. Part 3, section C of the RFQ sets out the operational requirements that the bidders who seek to operate the Penetanguishene Correctional Facility must satisfy. It indicates that the operational responsibilities will be shared between the responding party and the successful bidder, with the successful bidder having responsibility for providing or arranging the "transportation services for the provision of community escorts". The Ministry would continue to be responsible for the transportation of inmates to and from the courts and other institutions.

5The responding party asserts that the July 18th settlement had no application to the new private sector initiative being undertaken at the Penetanguishene Correctional Facility, including community escort services to and from that facility. The responding party's view of the settlement was made clear shortly after it had been executed when counsel for the responding party wrote to counsel for the applicant in the afternoon of July 18, 2000. The letter from counsel for the responding party stated:

This is further to the Minutes of Settlement signed today in the above-referenced matter [Board File Nos. 2895-99-U & 2888-99-OH]. The issue of the new private Penetanguishene correctional facility was not raised this morning, and, given the absence of any reference to it in the settlement, the Ministry wishes to make it clear that the settlement, obviously, was never meant to, nor does, include offender transportation services that would be necessary in the context of the new facility at Penetanguishene. While we believe that is as self-evident as our reference to the offender transportation services not including court transportation for inmates (and your agreement to same), we thought it best to clarify our understanding in writing to avoid any future ambiguity.

Counsel for the applicant responded the next day by letter to counsel for the responding party. He advised counsel for the responding party, after pointing out that the parties agreed that there had been no discussion concerning offender transportation services to be provided in respect of the Penetanguishene Correctional Facility, that he failed "…to see the analogy between the provision of court transportation for inmates…which was discussed and agreed on before the settlement was executed, and the offender transportation services at the Penetanguishene facility." Counsel for the applicant concluded by stating that he saw "…nothing self-evident about your interpretation of the settlement." and that he would provide a response once he received his client's instructions. On July 20, 2000, counsel for the applicant stated in his letter to counsel for the responding party:

Further to our letter of July 19, 2000, we wish to advise you that our client does not agree with your client's interpretation of the Minutes of Settlement dated July 18, 2000. Exceptions were neither sought nor granted for the provision of offender transportation services.

Counsel for the responding party, on the same day that Mr. Rabeau issued his memorandum to all staff regarding "Public-Private Partnership for Offender Transportation Services", wrote to counsel for the applicant stating:

The Ministry's position is that the settlement does not apply to any privately operated facility. Community escorts at Penetanguishene will be the responsibility of the operator of this new facility. Notwithstanding the non-application of the Settlement to Penetanguishene, Bailiff services, for Penetanguishene as for the other ministry jails, will continue to be operated by the Ministry, with bargaining unit employees—at least during the currency of the Minutes of Settlement. The Ministry will be acting according to this position.

The parties had joined issue on whether the July 18th settlement required the responding party to continue to provide community escort services with its employees who are members of the applicant's bargaining unit in respect of the new privately operated Penetanguishene Correctional Facility. This application was filed shortly thereafter.

6Counsel for the responding party submits that the settlement agreement must be read within the context of the proceedings in which the settlement arose. Indeed, counsel for the applicant did not take issue with that submission and also urged the Board to review the application and response in Board File Nos. 2888-99-OH and 2895-99-U. Counsel for the responding party argued that the parties had clearly distinguished between the operation of the Penetanguishene Correctional Facility and offender transportation services generally. He referred the Board to the November 19, 1999 memorandum from Mr. Rabeau and Morris Zbar, Assistant Deputy Minister, Community and Young Offender Services referred to in paragraph 1 of the written settlement (and a portion of which is set out in paragraph three, above). That memorandum, counsel argued, clearly distinguished between offender transportation services and the operation of the Penetanguishene Correctional Facility. He pointed out that the memorandum dealt with them separately as two distinct initiatives being undertaken by the responding party. The excerpt from that memorandum emphasized by counsel provided:

Areas to be pursued for private sector involvement include:

• The operation of the new, 1200-bed Penetanguishene correctional facility (not all new facilities, as rumoured);

• Offender transportation services

Counsel for the responding party submitted that it was clear that the responding party had treated the private sector involvement in offender transportation services as an initiative that was separate and distinct from private sector involvement in the operation of the Penetanguishene Correctional Facility. He supports that argument by reference to the letter to the responding party's staff from the Minister of Correctional Services dated November 25, 1999, also referred to in paragraph three above. In that letter the Minister listed four distinct initiatives and changes. The Minister referred to private sector partners in the areas of "food preparation, correctional industries and prisoner escorts." in the second area of change and later, in the fourth area of change referred to looking for a partner in the private sector for "the operation of our new super jail in Penetanguishene." Counsel suggests that the applicant understood that community escorts at Penetanguishene were separate and distinct from all other types of prisoner escort services as the institution was responsible for administering community escorts. Since the private sector partnership with the Penetanguishene Correctional Facility was a separate initiative, counsel argued that the settlement, by not specifically including prisoner escort services in respect of the Penetanguishene Correctional Facility, did not apply to such prisoner escort work.

7Counsel for the responding party submits that there was no reason for the responding party to have raised the Penetanguishene Correctional Facility's provision of community escorts during the negotiation of the settlement as the unfair labour practice complaint (and the health and safety complaint) that were resolved by the settlement had nothing to do with the Penetanguishene Correctional Facility. Counsel pointed out that the responding party's initiative with respect to having the private sector operate the Penetanguishene Correctional Facility would obviously have had to include providing community escort services for inmates incarcerated there. There was no reason, counsel submitted, for the responding party to tie its hands with respect to the larger privatization initiative it had undertaken by carving out community escort services from that initiative. Counsel submits that if the applicant had any concerns about community escorts at the Penetanguishene Correctional Facility, it should have raised them during the settlement discussions. The absence of any reference to the community escort services with respect to the Penetanguishene Correctional Facility in the settlement simply meant that the settlement had nothing to do with the operations at that institution, including the community escort services that had to be carried out from there.

8The applications that gave rise to the settlement in issue before us made explicit reference to community escorts without qualification. The application in Board File No. 2888-99-OH stated at paragraph 1 of Appendix A:

The applicant asserts that the Employer has violated the Occupational Health and Safety Act, subsection 50(1), because its decision to privatize community escorts of offenders:

• is a dismissal or threat to dismiss the Employer's correctional officers;

• is a penalty imposed on correctional officers whose available hours and income will be reduced as a result; and,

• is intimidation and coercion of the Employer's correctional officers;

because the Applicant on behalf of these workers sought the enforcement of the Act by means of the appeal process under the section 61 of the Act and through the Superior Court of Justice.

A similar statement is found in the application in Board File No. 2895-99-U at paragraph 1 of schedule A to the application. That paragraph provided:

The applicant asserts that the Employer has violated the Act, section 70, 72 and 76, because its decision to privatize community escorts of offenders:

• is interference in the Applicant's representation of its correctional officer members

• is a dismissal or threat to dismiss the Employer's correctional officers;

• is a penalty imposed on correctional officers whose available hours and income will be reduced as a result; and,

• is intimidation and coercion of the Employer's correctional officers;

because the Applicant as part of its lawful activities on behalf of these members sought the enforcement of OHSA by means of the appeal process under the section 61 of the OHSA and through the Superior Court of Justice pursuant to the Statutory Powers Procedure Act.

Both applications describe community escorts as the correctional officers who escort or take inmates or offenders out of the correctional institution into the community and return them to the institution. Community escorts may be used for prearranged visits for medical testing or examinations at hospitals or physician's offices, dental or psychiatric appointments, or for unscheduled trips for emergency hospital care arising from illness or injuries suffered while an inmate is in custody. The applications also alleged that Mr. Rabeau had indicated, when asked what was covered by the term "offender transportation" used in the November 19, 1999 memorandum, that the term included community escorts from institutions.

9Counsel for the applicant pointed out that the responding party, although arguing in this proceeding that the settlement had nothing whatever to do with the Penetanguishene Correctional Facility because the applications from which the settlement arose dealt only with community escorts and not the operation of that facility, had made submissions concerning community escorts at both the existing facilities and the super jails, of which the Penetanguishene Correctional Facility was the first one, in its response to those two applications. Paragraphs 25 and 26 of Schedule A in the responses to the applications in Board File Nos. 2888-99-OH and 2895-99-U stated:

25. At the November 19, 1999 meeting…Mr. Rabeau indicated that the decision with respect to inmate transportation was a general one aimed at initiating a process. In response to questions by the Applicant's representatives regarding what "transportation" covered Mr. Rabeau indicated that this had not been determined since the Ministry was considering a number of models and the interests of different stakeholders, particularly the police and municipalities. It did include consideration of community escorts.

26. The transportation of inmates involves transfers from institutions to court, between institutions, to federal institutions and community escorts. The creation of new super jails and the closure of a large number of smaller facilities will force a reorganization of inmate transportation. The costs of community escorts are viewed as significant and the Ministry would like to find a way of reducing those costs. The announcement reflected a decision to consider private sector options in addressing these problems.

The responding party also submitted with its responses to those two applications a report dealing with community escorts. That report discussed the options available for providing community escorts. Option 2, which discussed alternative service delivery, indicated that the responding party could "…contract with private security firm(s) to carry out all offender community escorts and supervision" as a method for reducing the costs associated with implementing the orders that the applicant had obtained through its successful OHSA appeals. That report, prepared in the spring of 1999, discussed community escorts without reference to any particular facility.

10Counsel for the applicant argued that the applicant, by filing the applications in Board File Nos. 2888-99-OH and 2895-99-U that were resolved by the July 18, 2000 settlement, was trying to preserve for the bargaining unit it represents the work opportunities that were created by its successful appeals under OHSA. The community escort work its members performed was at risk in the privatization initiatives the responding party announced and the applicant wanted to preserve that work for its members. The settlement, counsel submitted, made reference to the offender transportation services discussed in the letters of November 19 and 25, 1999, which included community escort work. Counsel for the applicant submitted that the settlement resolved two applications in which community escorts were in issue, and as the responses to those two applications indicated, at both existing facilities and at the new super jails.

11It seems to us that the settlement was an all encompassing document meant to address the concerns that the applicant had over the responding party's attempt to have community escort work performed by private sector employers using individuals who were not members of the applicant's bargaining unit. The responding party promised in paragraph one of the settlement that it would not proceed further with the contracting out process of offender transportation services as announced in the November 1999 letters, which clearly included community escorts. Although the operation of the Penetanguishene Correctional Facility by a private sector partner was discussed as a separate initiative in those two letters, it seems to us, based on the submissions made by the responding party in its responses to the two applications that were resolved by the settlement, that community escort work at the new "super jails" was an element of those applications; at least to the extent that the responding party thought it necessary to refer to the "new super jails…[forcing] a reorganization of inmate transportation" in its response to those applications. The creation of those super jails and the closure of a large number of smaller facilities would, as the responding party stated in its responses, "force a reorganization of inmate transportation". The applicant was seeking to limit the impact of that "reorganization of inmate transportation" on its members through those two applications, and, in our view, was attempting to obtain that in the settlement it reached with the responding party. Paragraph two of the settlement reinforces the promise made in the first paragraph. The responding party agreed that "offender transportation services will continue to be performed" by members of the applicant. The applicant's members were performing community escort work wherever such work arose and it seems that the responding party was, in paragraph two, providing the applicant with the assurance that such work would continue in the future to be performed by its members. It is therefore difficult for us to conclude that community escort work which was clearly the focus of the settlement did not include such work when carried out at the "super jails" or, in this case, at the Penetanguishene Correctional Facility.

12Both parties agreed that the community escort work that would have to be done at the Penetanguishene Correctional Facility was never discussed during the negotiation of the settlement. The parties were focussed on community escort work without any qualification attached to it. It may be that the responding party assumed that the operation of the Penetanguishene Correctional Facility was outside the purview of the settlement because it was of the opinion that offender transportation (and more specifically, community escort work) and the operation of the Penetanguishene Correctional Facility were two different things.

13Community escort work is, however, a discrete function that must be carried out at all of the responding party's facilities, including the Penetanguishene Correctional Facility. The RFQ developed for the Penetanguishene Correctional Facility divided up responsibilities for inmate transportation services between the private sector operator and the responding party. The responding party maintains the responsibility for transportation services to and from the courts and other institutions while community escort services are the responsibility of the private sector operator. Simply put, we do not accept that the settlement can be reasonably construed as excluding community escort work at the Penetanguishene Correctional Facility from its scope when the settlement addresses offender transportation services without qualification. If the community escort work at the Penetanguishene Correctional Facility was meant to have been excluded at the time the settlement agreement was negotiated and ultimately executed by the parties, then that exclusion should have been stated. It was incumbent, in our view, upon the responding party, when it negotiated a settlement which, on its face, appears to relate to community escort work it carries out at its facilities, to have made clear that despite the words of the settlement, the settlement did not apply to the Penetanguishene Correctional Facility before the settlement was finalized. The responding party, it appears, relied on an unspoken assumption that the applicant understood that the community escort work to be done at the Penetanguishene Correctional Facility was not covered by the settlement. In our opinion, one party's uncommunicated intention or understanding about the scope of the written settlement cannot be used to vary the plain meaning of the words the parties, both of whom were sophisticated and careful negotiators, chose to give effect to their settlement.

14We are therefore satisfied that the responding party violated the written settlement between the parties dated July 18, 2000 by seeking, in its Request for Qualifications in respect of the Penetanguishene Correctional Facility, to have private sector bidders provide transportation services for the provision of community escorts. Therefore, pursuant to the remedial powers conferred upon it by section 96(4) of the Act, the Board:

a) declares that the responding party has not complied with the written settlement between the parties dated July 18, 2000 by seeking to have the community escort work at the Penetanguishene Correctional Facility performed by persons who are not public servants coming within the bargaining unit represented by the applicant;

b) directs the responding party to amend its Request for Qualifications in respect of the Penetanguishene Correctional Facility by deleting the reference to "transportation services for the provision of community escorts" from the list of Other Services that the Selected Bidder must provide and adding it to the list of services that the Ministry will provide or arrange, with such amendment to be effective until July 17, 2002 or such other date as the applicant and responding party may agree;

c) directs the responding party to comply forthwith with the written settlement between the parties dated July 18, 2000 by having public servants who are members of the applicant's bargaining unit perform community escort work to and from the Penetanguishene Correctional Facility until July 17, 2002 or such other date as the applicant and responding party may agree; and

d) directs the responding party to issue a written memorandum on or before January 15, 2001 advising its staff that the Board declared that the responding party had violated the settlement reached between it and the applicant and that the Board directed the responding party to have members of the applicant's bargaining unit continue to perform community escort work in accordance with that settlement, including community escort work at the Penetanguishene Correctional Facility until July 17, 2002 or such other date as the applicant and responding party may agree.

"Harry Freedman"

for the Board