Canadian Union of Public Employees and its Local 5167 v. Ontario Labour Relations Board et al.

[Indexed as: Canadian Union of Public Employees, Local 5167 v. Ontario Labour Relations Board]

62 O.R. (3d) 113

[2002] O.J. No. 4121

Court File No. 70/02

Ontario Superior Court of Justice

Divisional Court

Farley, Then and Charbonneau JJ.

October 29, 2002

Employment -- Labour relations -- Collective agreement -- Scope -- Collective agreement providing that if employer established any [page114] additional job classifications that were not specified in Schedule of classifications to which collective agreement applied but which were appropriate for inclusion in that Schedule, employer agreed that job classifications were to be included in Schedule -- Employer hiring paramedics and union notifying employer that paramedics were appropriately included in Schedule -- Labour Relations Board looking at extrinsic evidence and determining that despite language of relevant provisions of collective agreement it could not be said that new job classification would automatically be included in collective agreement -- Board erring in interpreting relevant provisions of collective agreement in light of extrinsic evidence when provisions were not ambiguous -- Interpretation given to collective agreement clearly unreasonable.

Article 1.2 of the collective agreement between the applicant union and the respondent municipality provided that "if the Employer establishes any additional positions or job classifications that are not specified in Schedule "A" [the list of job classifications to which the collective agreement applied] but which positions or classifications are appropriate for inclusion in Schedule "A", then the Employer agrees . . . that the said position or job classifications are to be included in and form part of Schedule "A"." In the course of the transfer of responsibility for ambulance services from the Province to the municipality, the municipality hired a number of paramedics. The applicant wrote to a labour relations officer for the municipality indicating that the newly hired paramedics were appropriately included in and formed part of Schedule A under Article 1.2 of the collective agreement. The respondent union brought an application for certification in respect of the paramedics. The applicant filed an intervention based on the existence of a binding collective agreement. In interpreting Article 1.2 of the collective agreement, the Ontario Labour Relations Board looked at extrinsic evidence and ruled that "despite the language of Article 1.2., it cannot be said definitely that any new classification or position being added to the City/Region will automatically be included in the bargaining unit." The Board found that the applicant and the municipality had not yet agreed or reached a common understanding that the paramedics would be included in Schedule "A". The application for certification was granted. The applicant brought an application for judicial review of that decision.

Held, the application should be granted.

The standard of review of the Board's decision was that of patent unreasonableness. The Board was not interpreting a jurisdiction-limiting provision but was simply deciding whether, on the facts before it, there existed a collective agreement between a bargaining unit and the employer, the scope of which bound new employees. To the extent that it found the existence of an agreement and interpreted the meaning of its scope clause, the Board was simply making findings of fact based on the evidence before it. This preliminary issue was well within the jurisdiction of the Board.

The Board was not entitled to rely on extrinsic evidence in interpreting Article 1.2 since that provision was not ambiguous. The municipality had agreed that new positions or classifications would be included in Schedule "A" if they were appropriate for inclusion. The words "appropriate for inclusion" are well understood in the context of labour relations law and posed no difficulty. Any ambiguity arose from the extrinsic evidence and not from the wording of Article 1.2. That was the entire agreement at the relevant time of the respondent's application. Any new positions or classifications not falling within some express exception covered by the other agreements, if appropriate, were to be included. There was no evidence before the Board that the paramedics could fall under the scope of any of [page115] the other existing collective agreements. The Board never addressed the issue of appropriateness which was fundamental to a proper decision in this case. Section 7 of the Labour Relations Act, 1995, S.O. 1995, c. 1 clearly required, as a precondition to hearing the application, the Board to first find whether the scope of an existing collective agreement was binding on the paramedics. In deciding this issue, the Board had to give the wording of the collective agreement its ordinary meaning and only consider extraneous elements if the ambiguity of the language required and justified resort to extrinsic evidence. Although the wording of Article 1.2 was clear, the Board interpreted it to mean that the parties to the agreement had agreed that no new position or classification would be part of Schedule "A", whether or not "appropriate", until such time as the parties had further agreed. This was tantamount to saying there was no agreement. That interpretation flew in the face of the clear words of Article 1.2 and was clearly unreasonable.

APPLICATION for a judicial review of a decision of the Ontario Labour Relations Board allowing a certification application.

Cases referred to Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. 14,022; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, 25 N.B.R. (2d) 237, 97 D.L.R. (3d) 417, 26 N.R. 341, 51 A.P.R. 237; Great Atlantic & Pacific Co. of Canada Ltd. v. United Food & Commercial Workers International Union, Locals 175 and 533 (1995), 1995 10636 (ON SC), 24 O.R. (3d) 809, 126 D.L.R. (4th) 742, 95 C.L.L.C. 210-032 (Div. Ct.); Ontario (Attorney General) v. Ontario Public Service Employees Union (2000), 2000 17008 (ON CA), 52 O.R. (3d) 77, 195 D.L.R. (4th) 376, 66 C.L.R.B.R. (2d) 92 (C.A.), revg (1999), 1999 14882 (ON SCDC), 180 D.L.R. (4th) 549 (Ont. Div. Ct.) Statutes referred to Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 7(1)

Howard Goldblatt, for applicant. Jacqueline Lund, for the City of Hamilton/Regional Municipality of Hamilton-Wentworth. John C. Murray, for the Ontario Labour Relations Board. Richard Blair, for the Ontario Public Service Employees' Union.

The judgment of the court was delivered by

CHARBONNEAU J.: --

Nature of the Application

[1] This is an application for judicial review of a decision of the Ontario Labour Relations Board dated May 25, 2001.

[2] The Board granted an application for certification brought by the respondent Ontario Public Service Employees Union ("OPSEU") in respect of a group of employees, ambulance paramedics and attendants ("paramedics"), newly employed by the [page116] respondents City of Hamilton and Regional Municipality of Hamilton-Wentworth (collectively "Hamilton") as a result of the transfer of responsibilities for ambulance services from the Province to the Municipality.

[3] The applicant Canadian Union [of] Public Employees and its Local 5167 ("CUPE 5167") argued before the Board that OPSEU was barred from applying for certification because the paramedics were bound by the existing CUPE 5167 collective agreement. The applicant seeks to obtain an order quashing the Board's determination that the certification was not barred by virtue of the CUPE 5167 collective agreement.

Background

[4] At the time of the application for certification brought by OPSEU on May 23, 2000, CUPE 5167 had two collective agreements with each municipality, one for inside workers and one for outside workers. The two municipalities had recently been amalgamated into one municipal authority.

[5] In January 2000, the province transferred the responsibility for ambulance services to Hamilton. At that time, the ambulance services were provided by four Crown ambulance service providers operating in the region. The employees of these four suppliers were represented by OPSEU. Hamilton decided to directly assume the provision of service effective August 1, 2000. At the same time, the Town of Ancaster, which had been providing ambulance services through its fire department, announced it would discontinue service effective May 1, 2000. To cover the period from May 1, 2000 to August 1, 2000, an agreement was reached whereby Ancaster would continue to provide the services by paying Hamilton for the cost of paramedics supplied by Hamilton.

[6] Hamilton proceeded to hire paramedics. Advertisement, recruitment and screening was conducted starting in March 2000 and, ultimately, in early May 2000, Hamilton hired a number of paramedics to supply ambulance services to Ancaster.

[7] The existing collective agreements between CUPE 5167 and Hamilton contained the following scope clause:

1. Scope

1.1 The provisions of this Agreement shall apply to all employees employed in job classifications set forth in Schedule "A" attached hereto and forming part of this Agreement and for purposes of clarity the rates of pay set forth in the said Schedule "A" in respect of the job classifications described therein shall apply during the term of this Agreement to all employees in the said classifications.

1.2 During the term of this Agreement if the Employer establishes any additional positions or job classifications that are not specified in Schedule "A" [page117] but which positions or classifications are appropriate for inclusion in Schedule "A" then the Employer agrees:

a) that the said position or job classifications are to be included in and form part of Schedule "A"

b) that the rates for such positions or job classifications as set by the Employer are subject to the grievance procedure and arbitration provisions set forth in this Agreement.

(Emphasis added)

[8] On May 19, 2000, CUPE 5167 wrote to a labour relations officer for Hamilton indicating that the newly hired paramedics were appropriately included in and formed part of Schedule "A" under Article 1.2 of the existing collective agreement. In response to the application for certification by OPSEU, CUPE 5167 filed an intervention based on the existence of a binding collective agreement.

[9] Initially Hamilton claimed that the paramedics were not its employees. A similar position was taken by Ancaster. By August 1, 2000, Hamilton and CUPE 5167 entered into a memorandum of agreement which recognized that persons in the classifications of ambulance paramedic or ambulance attendant were appropriate for inclusion in Schedule "A" to the collective agreement.

The Board's Decision

[10] On May 25, 2001, the Board decided that Hamilton was the employer of the paramedics on the date of OPSEU's application for certification. The Board also held that the existing collective agreement between CUPE and Hamilton was not a bar to certification.

[11] The Board took into consideration various elements of extrinsic evidence:

(a) There were other bargaining agents for various employees of Hamilton, namely the Ontario Nurses Association, the International Union of Operating Engineers, the Amalgamated Transit Union, the International Brotherhood of Electrical Workers, the Police and Firefighters associations and various construction trades.

(b) Historically, when a new position or classification came to be added, a process was followed whereby Hamilton would first indicate its views on the matter and CUPE would then agree or disagree with that position. If both sides did not immediately agree, the question was the subject of further negotiations which would lead to a written or oral agreement or a common understanding about [page118] the inclusion of the new position or classification in Schedule "A". Barring an agreed settlement of the issue, CUPE could file a grievance and the matter resolved by arbitration.

(c) There was evidence that when the collective agreements between CUPE and Hamilton expired in 1999, the parties further negotiated the scope of the bargaining unit, and at that time certain positions were excluded from or included into Schedule "A".

(d) At the time of the application by OPSEU, Hamilton did not agree that the paramedics were to be included in Schedule "A". In fact, at one point, Hamilton took the position the paramedics were non-union workers.

[12] On the basis of that evidence, the Board found that the CUPE collective agreement was not an "all employee" bargaining unit. Further, the Board found that Hamilton and CUPE 5167 had not yet agreed or reached a common understanding that the paramedics would be included in Schedule "A", nor had the issue been finally determined by arbitration.

[13] The Board then interpreted Article 1.2 as follows:

78. . . . Therefore, despite the language of Article 1.2, it cannot be said definitely that any new classification or position being added to the City/Region will automatically be included in the bargaining unit.

79. In this case, according to the language of the collective agreement, inclusion in Schedule "A" brings a classification under the aegis of the CUPE agreement. Whatever Article 1.2 means, on the basis of the evidence before the Board, it is not so broad as to mean that any and all additional positions or job classifications not yet specified in Schedule "A" are automatically considered to be in the CUPE bargaining unit. The parties envisaged a process for how a position or classification would get into Schedule "A". In this instance the parties to the collective agreement had not completed that process when OPSEU made its application and there was no agreement that the paramedic classifications would be included in Schedule "A". Not only had that process not been completed, the City/Region had conducted itself such that there was every indication that it believed that the paramedics would not be included in any union, CUPE or otherwise. As such, the CUPE scope clause cannot be a barrier to the certification application.

(Emphasis added)

Standard of Review

[14] Applying the pragmatic and functional approach, Canadian courts have already concluded in many cases that the highest level [page119] of deference is owed to decisions of labour relations boards. The Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A provides a comprehensive legislative scheme for the determination of labour relations issues in this province and for that purpose the Act has constituted a highly specialized tribunal whose decisions are protected by a full privative clause. Based on Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417; Canada (Attorney-General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673 and Ontario (Attorney General) v. Ontario Public Service Employees Union (2001), 2000 17008 (ON CA), 52 O.R. (3d) 77, 195 D.L.R. (4th) 376 (C.A.), I have no difficulty concluding that the standard of review in this case is "patent unreasonableness", despite the submissions of the applicant that the standard of review was "correctness".

[15] The applicant submits that there are two reasons why the lesser deferential standard of correctness should be applied:

1. The Board here was interpreting a jurisdiction limiting provision within s. 7 of the Labour Relations Act.

2. The nature of the legal issues dealt with by the Board are issues of general construction of a contract for which the Board has no unique expertise and in any event the expertise to interpret collective agreements under the Labour Relations Act primarily resides with arbitrators and not the Board itself.

[16] Section 7(1) of the Labour Relations Act states:

7(1) Application for certification -- Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

[17] It is true that the Board, before proceeding to consider an application for certification, must first answer two preliminary questions, one of which is: Are the employees bound by a collective agreement? However, this is not a jurisdictional question. The Board is simply deciding whether, on the facts before it as it finds them, there exists a collective agreement between a bargaining unit and the employer, the scope of which binds the new employees. As such, the Board is not required to define the meaning of statutory rights, the existence of which is fundamental to the very jurisdiction of the Board, as was the case in [page120] Re Great Atlantic and Pacific Company of Canada v. United Food & Commercial Workers International Union, Local 175 and 633 (1995), 1995 10636 (ON SC), 24 O.R. (3d) 809, 126 D.L.R. (4th) 742 (Div. Ct.). To the extent that it finds the existence of an agreement and interprets the meaning of its scope clause, the Board is simply making findings of facts based on the evidence before it. This preliminary issue is well within the special expertise of the Board. Finding that a collective agreement has been entered into between an employer and a bargaining unit and interpreting the specialized language of that collective agreement are part of the day-to-day work of the Board. The functional and pragmatic approach requires that the court show substantial deference to the Board's decisions on those preliminary questions.

Application of the Standard

[18] The Board here chose to consider and rely on extrinsic evidence to determine the meaning of Article 1.2 of the scope clause. Counsel for the Board and OPSEU submit that the Board was entitled to do so because the wording of Article 1.2 is ambiguous. However, the Board seemed to have no problem whatsoever with the words "which positions or classifications are appropriate for exclusion". Those words in themselves are well understood in the context of the law of labour relations and posed no difficulty.

[19] This is illustrated by the following passages of the decision [at paras. 51-52, 77-78]:

In the event that a classification is not addressed for the purpose of jurisdiction, it may be posted but a union can still test for whether it is appropriate for its bargaining unit. The standard that CUPE and the City/Region have utilized for whether a classification is appropriate for inclusion in the CUPE bargaining unit is based on the Labour Relations Board's jurisprudence regarding "appropriateness" having regard to whether a job is supervisory in nature or whether the position would make a worker privy to confidential or labour relations related information.

In the past and on an ongoing basis there are new classifications that are added to the CUPE bargaining unit monthly, and often weekly. On a less frequent basis new departments or programs are added as the City/Region has taken on areas that were heretofore provincial responsibilities. In each case the City/Region staff tell CUPE what they believe are the classifications that are in or out of the scope of the CUPE bargaining unit. If CUPE disagrees with the decision, it grieves the placement of the classification outside its bargaining unit. . . .

CUPE and the City/Region urged the Board to read all of the other subsections of the scope clause as they are of the view that those sub-sections make clear that the parties envisioned all new positions or job classifications created by the employer as being included in and covered by the CUPE collective agreement. Article 1.2 indicates that the parties have agreed that if the [page121] employer creates a new position or classification during the term of the collective agreement and if that position or classification is appropriate for inclusion in Schedule "A", then it will be included in and form a part of Schedule "A". The parties advised the Board that what they meant by "appropriate" was what the Labour Relations Board would consider to be appropriate for inclusion in a bargaining unit. In particular, consideration would be given to the concept of "community of interest" and to whether persons exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations (i.e. those who are excluded based on section 1(3)(b) of the Act).

All of this indicates that CUPE and the City/Region cannot have believed that any new position or classification would be included in the CUPE bargaining unit simply on the basis of "appropriateness" as defined by the Labour Relations Board's jurisprudence.

[20] It is, therefore, evident that the wording itself was clear to the Board. Any ambiguity arose from the extrinsic evidence itself and not from the wording of Article 1.2.

[21] In view of the extrinsic evidence, the Board found that Article 1.2 was only a part of the total agreement between the parties. It found that the parties envisaged a process of negotiation or grievance before a position or classification would get into Schedule "A" and that until the process was completed no agreement existed that bound the paramedics. The Board also found that the parties had expressly excluded certain potentially "appropriate" employees from Schedule "A", namely part-time workers. Moreover, nurses, engineers and so on, which were covered by other agreements, would never be included in Schedule "A".

[22] The Board appears to have favoured this interpretive approach for the following reasons [at para. 87]:

The Board's role in this application is to determine whether workers who wish to be represented by a trade union of their choice may properly do so. The Board is not acting as a grievance arbitration board regarding the breath of the language of the collective agreement. It is charged with determining whether the scope of the CUPE collective agreement precludes the paramedics from being organized by OPSEU. When the Board issues a certificate for a new bargaining unit that certificate is spent once the parties agree on a scope clause, which may differ somewhat from the original certificate. However, whatever it is that the parties agree to, it should be clear to the outsider reading it who is included in the scope of the bargaining unit. In a certification application the Board, in situations like this, will give the scope language of a collective agreement a strict construction. If parties wish to change their certificates, they should do so with a view to clearly delineating who is in or out of the bargaining unit being described.

[23] In my view, the wording of Article 1.2 is clear and unambiguous. The fact that there are other bargaining units covering specific trades or professions, or that in the past the employer has not immediately agreed with the union's position on "appropriateness" but rather the matter was only settled after negotiation or [page122] arbitration or that the parties, in some specific cases, even chose to exclude otherwise "appropriate" positions in a given situation, does not in any way alter the meaning of the existing contract. The employer had agreed that new positions or classifications would be included in Schedule "A" if they were "appropriate", a well understood term by all in the labour relations field. That was the entire agreement at the relevant time of the OPSEU's application. Any new positions or classifications not falling in some express exception covered by the other agreements, if appropriate, were to be included. There was no evidence before the Board nor has any one argued that the paramedics could fall under the scope of any of the other existing collective agreements. Indeed, if that were the case, it would be a further bar to the certification application.

[24] The Board never addressed the issue of appropriateness which was fundamental to a proper decision in this case. It is clear the Board would have had little difficulty in finding the paramedics were "appropriate" as that term is well understood. The Board instead chose to decide the preliminary issue of whether the paramedics were bound by a collective agreement by dealing with it not as a preliminary question, but within the context of the general issue to be resolved by the certification application, namely "whether workers who wish to be represented by a trade union of their choice may properly do so". This approach is fundamentally flawed. Section 7 of the Labour Relations Act clearly required as a pre-condition to hearing the application, that the Board first find whether the scope of an existing collective agreement was binding on the paramedics. In deciding that issue, the Board had to give the wording of the collective agreement its ordinary meaning and only consider extraneous elements if the ambiguity of the language used required and justified resort to extrinsic evidence.

[25] Although the wording of Article 1.2 was clear, the Board interpreted it to mean that the parties to the agreement had agreed that no new position or classification would be part of Schedule "A", whether or not "appropriate", until such time as the parties had further agreed. This is tantamount to saying there was no agreement. That interpretation flies in the face of the clear words of Article 1.2 and is clearly irrational. Such an approach will encourage attacks on otherwise clear and unambiguous scope clauses on the basis of all types of extrinsic and often irrelevant evidence. This approach is patently unreasonable.

Conclusion

[26] For all of the above reasons, the application is allowed, the decision of the Ontario Labour Relations Board dated May 25, 2001, [page123] as it relates to the non-existence of a binding collective agreement, is quashed and set aside.

[27] Counsel agree that costs should follow the event. Costs to the applicant fixed in the amount of $4,000 payable forthwith by OPSEU.

Application granted.