1197-01-G International Brotherhood of Electrical Workers, Local 586, Applicant v. Black & McDonald Limited, Responding Party.

BEFORE: John Morgan Lewis, Vice-Chair.

APPEARANCES: Robert Monti, Ken Scott, James Barry and John Bourke for the International Brotherhood of Electrical Workers, Local 586; Michael S. Ruddy, Mike Sharp, Daniel Brennan and Michael Caletti for Black & MacDonald Limited.

DECISION OF THE BOARD; December 12, 2001

1. This is a referral of a grievance to arbitration pursuant o section 133 of the Labour Relations Act, 1995 (the “Act”). The referral was filed with the Board on July 20, 2001.

2. The grievance is relatively straightforward. The International Brotherhood of Electrical Workers, Local 586 (the “union”) alleges that Black & MacDonald Limited (the “employer”) violated the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario effective from May 1, 2001 to April 30, 2004 (the “collective agreement”) by failing to pay the required travel allowance to its employees working at the Hershey Plant located in Smith Falls. The employer maintains that the Hershey Plant falls within a designated “travel free zone” in which a travelling allowance is not required to be paid.

3. The relevant provisions of the collective agreement are set out as follows:

Clause 1100

OTTAWA TRAVEL FREE ZONE

Travelling time and transportation shall not be payable for work performed within a “free zone ” identified on the appended map and more specifically enclosed by the following boundaries:

Highway 17 and Highway 15 south to the Rideau River (including the towns of Arnprior, Pakenham, Almonte, Carlton Place then following the southern border of the 586 jurisdiction east to Regional Road 9 then following Road 9 north to the Ottawa River which also includes the town of Plantagnet.

Clause 1101

Travelling time at straight time rates plus cost of transportation shall be paid by the Employer on all work performed outside the “Free Zone” area. If the Employer wishes, he may supply suitable transportation in lieu of cost of the same. In addition, transportation and travel time shall be paid on initial hiring or reporting to the job, and on termination and return from the job.

Clause 1102

Should the cost of travel time and transportation be impractical, then a minimum of $58.50 daily will be paid for every day or part of day worked or reported for work.

The positions of the parties

4. The applicant’s first position is that the Hershey Plant is located in Smith Falls and that the travel free zone described in Clause 1100 does not include work being performed in Smith Falls. The applicant’s alternative position is that Clause 1100 is ambiguous and that it should be permitted to call extrinsic evidence relating to the manner in which Article 1100 was negotiated for the renewal of the collective agreement in 1998 as well as in 2001. The applicant also seeks to call evidence to establish the manner in which Article 1100 has been applied with respect to work being performed at the Hershey Plant in Smith Falls. The applicant’s further alternative position is that Article 1100 does not reflect the agreement which had been reached by the parties with respect to the scope of the travel free zone and that the Board should amend Article 1100 accordingly.

5. The employer asserts that Article 1100 clearly and unambiguously defines the travel free zone to include the work performed at the Hershey Plant in Smith Falls. The employer maintains that the Board’s inquiry should end there. The employer argues that the Board has no jurisdiction to allow the calling of extrinsic evidence as Clause 1100 is not ambiguous and can be interpreted by reference to the words in the clause. The employer further asserts that the courts have repeatedly and consistently maintained that Arbitrators or Boards of Arbitration do not have the authority to rectify the terms of a collective agreement even if they were inclined to do so.

Analysis of Clause 1100

6. The Board notes that the parties never included a map to the collective agreement which is referred to in Clause 1100. Accordingly the Board must rely upon the wording of Clause 1100 to determine its meaning which in this case refers to its geographic scope. The travel free zone divides the town (city) of Smith Falls along Highway 15 and the Rideau River. Those portions of Smith Falls situate to the north of the Rideau River and to the east of Highway 15 fall within the travel free zone as defined in Clause 1100. The remaining portions of Smith Falls, situate to the west of Highway 15, fall outside the travel free zone.

7. Counsel for the applicant draws the Board’s attention to the fact that a number of towns which are located along the border of the travel free zone and in some instances are divided by said border, are specifically referred to in Clause 1100 so as to ensure that the whole area of the named town (including those areas which would otherwise be outside the travel free zone) is included in the travel free zone. The town of Smith Falls is, by way of contrast, not named although it is divided by the boundary of the travel free zone border. This failure to make specific reference to Smith Falls, it is argued by counsel for the applicant, leads to the conclusion that all of Smith Falls rests outside the travel free zone. The applicant relies upon the canon of construction, expressio unius, exclusio alterius which means “a general phrase or proposition takes it colour as well from the specific words or phrases which follow it as from those which precede it” in support of its position. In other words, the failure to describe all of Smith Falls within the travel free zone leads one to conclude that all of Smith Falls is outside the travel free zone.

8. After considering the submissions of the parties and reviewing the wording of Clause 1100, the Board finds that there is no ambiguity as to the geographic scope of the travel free zone. The failure to note the town of Smith Falls does nothing more than require a review of the specific description of the boundaries to determine which portions are located inside the travel free zone and which areas are not. The Hershey Plant is located north of the Rideau River and east of Highway 15. According to the wording of Clause1100, those employees performing work covered by the collective agreement at the Hershey Plant are not entitled to a travel allowance as the Hershey Plant is located within the travel free zone.

The Right to Call Extrinsic Evidence

9. The applicant’s first alternative argument is that the language of Clause 1100 is ambiguous, requiring the calling of extrinsic evidence to assist the Board in making a correct interpretation of the travel free zone. The applicant seeks to call evidence of the amendment to Clause 1100 affected during negotiations for the renewal of the collective agreement in 1998 as well as the discussions regarding the geographic scope of the travel free zone which took place during negotiations in 2001. The applicant also seeks to call evidence with respect to the manner in which electrical contractors have been applying Clause 1100 for work being performed at the Hershey Plant.

10. The Board’s approach with respect to the use of extrinsic evidence as an interpretative tool is described as follows in Bellai Brothers Ltd., [1994] OLRB Rep. Jan. 2 at paragraph 10:

It is a well-established rule of interpretation that where the words of a collective agreement are not ambiguous, only the words of the agreement can be used to interpret it. It is permissible to refer to extrinsic evidence as an aid to interpretation only in cases where the collective agreement contains a patent or latent ambiguity as alleged (see Re Noranda Metal Industries and IBEW Local 2345, (1984) 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529 (Court of Appeal); Re International Union, United Automobile, Aerospace, and Agricultural Implement Workers, Local 1967 and McDonald Douglas Canada Ltd., (1984) 1984 CanLII 2055 (ON HCJ), 47 O.R. (2d) 78 (Divisional Court); Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254; and see Leitch Goldmines Ltd. et al. v. Texas Gulf Sulphur Co. (Inc.) et al., 1968 CanLII 405 (ON HCJ), [1969] 1 O.R. 469).

11. Counsel for the applicant referred to a number of other authorities which essentially stand for the proposition that extrinsic evidence can be relied upon as an interpretative aid should the collective agreement contain a patent or latent ambiguity. The Board has already found, however, that Clause 1100 can be interpreted on the basis of its wording and contains no ambiguity to which extrinsic evidence would be relied upon to clarify. Accordingly, the Board dismisses the applicant’s request to call extrinsic evidence.

Rectification

12. The applicant’s second alternative argument is another attempt to rely upon extrinsic evidence. The applicant asserts that the wording of Clause 1100 is not reflective of the understanding reached by the parties during negotiations. The applicant asserts that the negotiating parties to the Ottawa local appendix of the collective agreement expressly agreed in 1998 that all of Smith Falls would be expressly excluded from the travel free zone. Due to a clerical error, however, the exclusion of Smith Falls was not included in the final text of the collective agreement. The applicant asserts that the Board has the authority to amend the collective agreement and Clause 1100 in particular, to give effect to the mutual understanding of the parties.

13. Section 1307 of the collective agreement expressly prohibits a Board of Arbitration from altering the terms of the collective agreement. It reads as follows:

1307 ARBITRATION

Differences between the Parties not dealt with by the foregoing provisions may be referred to Arbitration pursuant to section 48 of the OLRA.

The expense of nominees to an Arbitration Board shall be borne by the Party represented and the expenses of the Chairman shall be borne equally by both Parties.

The Board of Arbitration shall not have any power to alter or change any of the provisions of this Agreement or to substitute any new provisions for any existing provision or to give any decision inconsistent with the terms and conditions of this Agreement.

14. The Board concedes that for a period of time arbitrators routinely held that they had the authority to modify a collective agreement by applying the doctrine of rectification to correct a mutual mistake of the parties. The more current view, however, is that arbitrators, both those appointed consensually or by statute, do not have any inherent authority to modify a collective agreement unless expressly permitted to do so by the terms of the collective agreement.

15. In Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al., 1971 CanLII 555 (ON HCJ), [1972] 1 O.R. 409, Mr. Justice Hughes of the High Court quashed the decision of Professor Weiler in which he held that he had jurisdiction to rectify the collective agreement to correct a mistake that had been made on signing by the parties. At page 416 Mr. Justice Hughes writes:

… the interpretation that the learned arbitrator puts upon the combined effect of ss. 1, 2, 4 and 10 and sch. “A” of the agreement of 1969 as amended by the agreement of 1970 alters the effect of the amendments actually made and executed by the parties. Whether he does this by interpretation simpliciter, or by rectification based upon extrinsic evidence, he exceeds his jurisdiction by doing so.

16. The Court of Appeal upheld the decision of the High Court in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al., 1972 CanLII 34 (ON CA), [1972] 2 O.R. 793. Arnup J., writing for the Court of Appeal, made the following comments beginning on page 801 on the arbitrator’s authority to use the doctrine of rectification:

Furthermore, the arbitrator erred in doing what he called ‘applying the principle of rectification’ which I take to be a euphemism for ‘reading the document as if rectified’.

In ‘applying the doctrine of rectification’ the arbitrator made two separate and distinct errors:

i) As a consensual arbitrator he had no power whatever to rectify the collective agreement. If the collective agreement did not represent the true bargain between the parties, the party asserting this to be so could bring an action for rectification, but as Judson, J. said in the Port Arthur Shipbuilding case at p. 96 S.C.R. the arbitrator ‘had no inherent powers to amend, modify or ignore the collective agreement’.

ii) He ignored an express term of the agreement itself, clause 17 of which reads:

An arbitrator appointed under Step 5 of the Grievance Procedure shall not have power to add to, subtract from, alter, modify or amend any part of this Agreement or otherwise make any decision inconsistent with this Agreement.

17. The majority of the Supreme Court of Canada affirmed the decision of the Court of Appeal, 1974 CanLII 13 (SCC), [1975] 1 S.C.R. 630, Laskin C.J.C. and Spence J. dissenting. The issue of rectification was not addressed by the majority decision but the following comments were issued by Spence in his dissent:

Had the result which the arbitrator reached been dependent on any rectification of the collective agreement, I would have been of the strong view that the award was beyond the jurisdiction of the arbitrator and therefore a nullity.

18. The preceding comments of the Supreme Court of Canada and the Court of Appeal were in relation to a consensually appointed arbitrator. They apply equally to an arbitrator appointed by statute such as the Board pursuant to section 133 of the Act. In fact, the High Court had proceeded on the basis that Professor Weiler had been sitting as a statutory arbitrator when it had quashed his decision. In Emco Ltd v. United Steel Workers of America, Local 2699 (1977), 1977 CanLII 2869 (ON LA), 14 L.A.C. (2d) 361 (Johnston) the Board of Arbitration held as follows:

14. We are satisfied that the courts have declared their position with respect to the jurisdiction of a statutory arbitration board to apply the doctrine of rectification. In the Supreme Court of Canada’s decision in the Toronto Police case, it is apparent that seven of the eight Justices (excluding the separate dissent of the Chief Justice) viewed their jurisdiction to quash the award of a statutory arbitrator notwithstanding section 37 [48] of the Labour Relations Act, as much broader than their jurisdiction to quash the award of a consensual arbitrator. And, as pointed out earlier, Mr. Justice Hughes in the Toronto Police case presumed he was quashing the award of a statutory arbitrator and quash he did where rectification was effected by that arbitrator.

19. The Board, sitting as a statutory arbitrator pursuant to section 133 of the Act, derives its authority from section 48 of the Act and from section 1307 of the collective agreement. Neither confers authority on the Board to amend, alter or otherwise change the terms of the collective agreement.

20. Most recently, the Ontario Superior Court of Justice (Divisional Court) quashed a decision of Arbitrator Brown in which he held that he had authority to rectify a collective agreement to correct an error made with respect to the calculation of wages. In Public Service Alliance of Canada v. NAV Canada, [2001] O.J. No. 692 Court File No. 00-DV-479, February 8, 2001, the Divisional Court upheld the rulings of the court in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al., supra, and found it to be still the law in Ontario. At paragraph 11 the Court writes:

11. The arbitrator, Richard Brown, in a thorough and well written award, held that he was entitled to correct the wage rates for the two groups by applying the doctrine of rectification. Accordingly, he dismissed the grievance.

12. In my respectful opinion, the arbitrator arrived at a result which may have been preferable from a labour relations standpoint, but which is contrary to the law of this Province. I can see no legitimate ground for distinguishing this case from the decision of the Court of Appeal in the Metro Police case, in which it was held that an arbitrator had no jurisdiction to apply the doctrine of rectification.

And later at paragraph 21 the Court observes:

21. If the law as declared by Arnup J.A. in the Metro Police case is to be changed, the change must be brought about by statute or by the decision of a court higher than the Divisional Court.

21. It is likewise not the role of the Board to change the state of the law in this regard. Accordingly, the Board finds that it does not have the authority to amend the collective agreement while sitting as a Board of Arbitration pursuant to section 133 of the Act.

22. The grievance is therefore dismissed.

“John Morgan Lewis”

for the Board