FPSLREB Decisions

Heard at Ottawa, Ontario,
October 20, 2014, and January 28, 2016.

REASONS FOR DECISION

I. Policy grievance referred to adjudication

1        On September 13, 2013, the bargaining agent, the Professional Institute of the Public Service of Canada (PIPSC), filed a policy grievance under s. 220 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) stating the following:

On or about August 9, 2012, employees of the Canada Revenue Agency received a copy of Collective Bargaining Bulletin 2012-001 signed by Pat Lacelle and issued by the Canada Revenue Agency to its Compensation Directors & Regional HR Directors (attached). This Bulletin purports to clarify language of the Audit, Financial and Scientific (all employees) collective agreement, signed by the Professional Institute of the Public Service and the Canada Revenue Agency on July 10, 2012.

The information contained in this Bulletin is contrary to the provisions of the Audit, Financial and Scientific (all employees) collective agreement.

2        “Collective Bargaining Bulletin No. 2012-001” (“Bulletin 2012-001”) stated as follows:

…

The Audit Financial and Scientific (AFS) collective agreement, between the Canada Revenue Agency (CRA) and the Professional Institute of the Public Service of Canada (PIPSC) was signed on July 10, 2012. This agreement is for a period of three (3) years effective from December 22, 2011 to December 21, 2014.

…

Personal Leave /Volunteer Day (Articles 17.21 and 17.22)

The volunteer leave for PIPSC employees has been converted to a second day of personal leave, and volunteer leave (Article 17.22) has been removed from the collective agreement. Only the balance of volunteer leave on the date of signing will be transferred into the personal leave bank. In subsequent years, PIPSC employees will be entitled to fifteen (15) hours of personal leave.

…

3        As relief, the PIPSC requested an order declaring that the Canada Revenue Agency (CRA or “the employer”) has violated clause 17.21 of the Audit, Financial, and Scientific Group (“AFS”) collective agreement and an order requiring the CRA to interpret, apply, and administer the AFS collective agreement in conformity with the first order, retroactive to the date of signing.

4        On October 4, 2013, the CRA denied the grievance, and on November 14, 2013, the bargaining agent referred it to the Public Service Labour Relations Board (PSLRB) for adjudication.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Act as that Act read immediately before that day.

6        On October 20, 2014, the hearing commenced, and I heard arguments with respect to the employer’s request to admit extrinsic evidence with respect to the collective agreement, which the bargaining agent opposed. Salient to that argument was the PSLRB’s decision in Delios v. Canada Revenue Agency, 2013 PSLRB 133, which was, at the time, pending judicial review at the Federal Court. I adjourned the hearing on the merits of the grievance pending my determination on the issues of permitting extrinsic evidence and the judicial review proceedings in Delios.

7        The Federal Court set aside the decision in Delios on November 14, 2014. However, the bargaining agent appealed that decision to the Federal Court of Appeal, which allowed the appeal, set aside the Federal Court’s decision, and reinstated the PSLRB’s decision (see Delios v. Attorney General of Canada, 2015 FCA 117 (“Delios FCA”)).

8        The hearing reconvened on January 28, 2016, and the employer submitted that I should hear and consider contextual evidence. I agreed to hear the employer’s witness and reserved on the weight if any that would be given to the proposed contextual evidence.

II. Summary of the evidence

9        On November 6, 2009, the PIPSC and the CRA signed a collective agreement for all employees of the AFS bargaining unit (“the bargaining unit”) that expired on December 21, 2011 (“the 2009 collective agreement”).

10        The 2009 collective agreement contained provisions at clauses 17.21 and 17.22 for employees of the bargaining unit to receive and use during each fiscal year both personal leave and volunteer leave, each in an amount of 7.5 hours. Those clauses stated as follows:

17.21 Personal Leave

(a) Subject to operational requirements as determined by the Employer, and with an advance notice of at least five (5) working days, the employee shall be granted, in each fiscal year, up to seven decimal five (7.5) hours of leave with pay for reasons of a personal nature.

(b) The leave will be scheduled at times convenient to both the employee and the Employer. Nevertheless, the Employer shall make every reasonable effort to grant the leaves at such times as the employee may request.

17.22 Volunteer Leave

(a) Subject to operational requirements as determined by the Employer, the employee shall be granted, in each fiscal year, seven decimal five (7.5) hours of leave with pay to work as a volunteer for a charitable or community organization or activity, other than for activities related to the Government of Canada Workplace Charitable Campaign;

(b) The leave will be scheduled at times convenient to both the employee and the Employer. Nevertheless, the Employer shall make every reasonable effort to grant the leaves at such times as the employee may request.

11        On July 10, 2012, the PIPSC and the CRA signed a new collective agreement for all employees of the AFS bargaining unit, the provisions of which became effective on July 10, 2012, and expired on December 21, 2014 (“the 2012 collective agreement”).

12        While the 2012 collective agreement contained both clauses 17.21 and 17.22, they differed from those in the 2009 collective agreement. Clause 17.21 in the 2012 collective agreement was still entitled “Personal Leave”; however, clause 17.22 was no longer entitled “Volunteer Leave” but instead was the provision dealing with compassionate care leave. The volunteer leave provision that had been in the 2009 collective agreement had been removed in its entirety from the 2012 collective agreement.

13        Clause 17.21 of the 2012 collective agreement stated as follows:

17.21        Personal Leave

(c) Subject to operational requirements as determined by the Employer, and with an advance notice of at least five (5) working days, the employee shall be granted, in each fiscal year, up to fifteen (15) hours of leave with pay for reasons of a personal nature.

(d) The leave will be scheduled at times convenient to both the employee and the Employer. Nevertheless, the Employer shall make every reasonable effort to grant the leaves at such times as the employee may request.

14        The only difference between clause 17.21 in the 2009 collective agreement and in the 2012 collective agreement is that the words “seven decimal five (7.5) hours” were changed to “fifteen (15) hours”.

15        A fiscal year in the federal public service is from April 1 of any given year until March 31 of the following year.

16        Before the 2012 collective agreement was signed, the bargaining agent issued a memo dated March 21, 2012, and titled “Summary of AFS Tentative Agreement” (“the PIPSC March Memo”), which was posted on its “Info Zone” site. The relevant portion of that memo states as follows:“Conversion of Volunteer Leave to Personal Leave increases personal leave entitlement of 15 hours and eliminates volunteer leave which many members found difficult to use” [emphasis in the original].

17        The PIPSC March Memo was attached to the grievance.

18        On August 9, 2012, the CRA issued Bulletin 2012-001.

19        Todd Burke was, as of the time of his testimony, the chief negotiator for the CRA. He has been in that position since 2009. His duties and responsibilities as chief negotiator are to oversee and negotiate two collective agreements for roughly 40 000 unionized CRA employees, of which there are approximately 12 000 AFS bargaining unit members.

20        Mr. Burke testified that the tentative agreement that eventually became the 2012 collective agreement was signed in March 2012. He further confirmed in his evidence that he saw the PIPSC March Memo posted on the PIPSC website before the 2012 collective agreement was signed.

21        Mr. Burke testified that AFS bargaining unit employees who requested their volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012, were granted that leave; however, they were limited to only 7.5 hours of personal leave for the balance of fiscal 2012-2013 instead of the full 15 hours as set out in clause 17.21 of the 2012 collective agreement.

22        Mr. Burke stated that AFS bargaining unit members have filed between 2100 and 2150 grievances claiming an additional 7.5 hours of personal leave. They would have already used their volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012, and would be seeking 15 hours of personal leave that they would have taken in fiscal 2012-2013 in addition to 7.5 hours of volunteer leave.

23        Mr. Burke stated that the cost of these grievances if paid out would be in the range of $700 000, based on an average daily salary of $340 per employee.

24        Mr. Burke confirmed in cross-examination that the only restrictions set out in clause 17.21 of the 2012 collective agreement that limit taking the 15 hours of personal leave are operational requirements and that the employee wanting to take the leave has to give the CRA advance notice of at least five working days.

III. Summary of the arguments

A. Request to admit extrinsic evidence

1. For the bargaining agent

25        Between April 1, 2012, and July 10, 2012, some AFS bargaining unit employees requested and were granted volunteer leave hours under clause 17.22 of the 2009 collective agreement. During this time, the statutory freeze provisions as set out by s. 107 of the Act were in effect.

26        Bulletin 2012-001 attempted to place a restriction upon taking the 15 hours of personal leave under clause 17.21 of the 2012 collective agreement by limiting personal leave to only 7.5 hours if an AFS bargaining unit member had taken volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012.

27        The CRA wishes to introduce extrinsic evidence in an attempt to demonstrate that there was a consensual agreement to restrict granting the 15 hours of personal leave if an employee had taken volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012.

28        Bulletin 2012-001 is the CRA’s subjective intention. The parties never agreed to it.

29        The general rule in the construction of contracts is to use the ordinary meaning of the words and to apply that meaning to them. Reviewing the 2012 collective agreement shows that nothing suggests that the parties addressed the gap between April 1 and July 10, 2012.

30        The bargaining agent referred me to paragraph 3:4400 of Brown and Beatty, Canadian Labour Arbitration, 3rd Ed., which states as follows:

Parol or extrinsic evidence, in the form of either oral testimony or documents, is evidence which lies outside, or is separate from, the written document subject to interpretation and application by an adjudicative body. Although there are numerous exceptions, the general rule at common law is that extrinsic evidence is not admissible to contradict, vary, add to or subtract from the terms of an agreement reduced to writing. If the written agreement is ambiguous, however, such evidence is admissible as an aid to the interpretation of the agreement to explain the ambiguity but not to vary the terms of the agreement. The two most common forms of such evidence in labour arbitrations are the negotiating history of the parties leading up to the making of a collective agreement, and their practices before and after the making of the agreement. And in addition to its use as an aid to interpretation of a collective agreement or a settlement agreement, or to establish an estoppel, it may be adduced in support of a claim for rectification. However, for such evidence to be relied upon it must be “consensual”. That is, it must not represent the “unilateral hopes” of one party. Nor can it be equally vague or as unclear as the written agreement itself.

31        Section 229 of the Act states that a decision rendered by an adjudicator or the Board may not have the effect of requiring amending a collective agreement.

32        Extrinsic evidence could only contradict the terms contained in the 2012 collective agreement, which states quite clearly that the employees in the AFS bargaining unit are entitled to 15 hours of personal leave per fiscal year.

33        Delios involved a situation in which an employee received her personal leave under the collective agreement governing one bargaining unit (represented by the Public Service Alliance of Canada) but was denied that same personal leave when she applied for it under the AFS collective agreement in force during fiscal year 2007-2008. Paragraph 22 of Delios states as follows:

[22] … where the parties to collective bargaining have agreed to place a temporal or other limitation on a leave entitlement arising under the collective agreement, they have done so explicitly. Since the parties have not done so in clause 17.21, I have no reason to look beyond the plain and ordinary wording agreed on by the parties in that clause. I can find no sound basis in the collective agreement, and certainly not in the preamble of the agreement as argued by the employer, that would persuade me to do otherwise, and I cannot construe that provision as containing an implied limitation that would have the same effect as the clauses quoted above.

34        The plain and ordinary meaning of the 2012 collective agreement reflects the intention of the parties; there is no need to seek extrinsic evidence.

35        The bargaining agent referred me to Canadian Labour Arbitration, subsection 4:2100, which states as follows:

It has often been stated that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it… .

…

But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation, equivalent to the intention.

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.

36        Language should be viewed as it is written unless it would lead to an absurdity. Effect must be given to the meaning, even if it appears unfair. There is no inconsistency in clause 17.21 of the 2012 collective agreement.

37        The bargaining agent referred me to clauses 15.07(c) and (d) of the 2012 collective agreement, between which the parties inserted a transitional provision.

38        Both parties knew a statutory freeze was in effect at the time the AFS employees were requesting and being granted their volunteer leave hours under clause 17.22 of the 2009 collective agreement. Both parties know that the employer’s fiscal year starts on April 1 of any given year. If the CRA wanted to restrict the use of the volunteer leave hours under clause 17.22 of the 2009 collective agreement or the granting of 15 hours of personal leave in the 2012 collective agreement, it should have taken steps to incorporate that into the 2012 collective agreement.

39        AFS employees were entitled to request and use the volunteer leave hours under clause 17.22 of the 2009 collective agreement. Neither the employer nor the PIPSC could tell an AFS employee not to request and take that leave; doing so would have breached the statutory freeze provision.

40        The bargaining agent also referred me to Taticek v. Canada (Border Services Agency), 2014 FC 281, which sets out the general rule with respect to contract interpretation (albeit with respect to a settlement agreement) and states at paragraphs 58 through 61 as follows:

58 Thus, while management and the Applicant were entitled to their respective subjective beliefs as to what was intended to be achieved by the settlement agreement, evidence of a party’s subjective intention is not relevant. The Supreme Court of Canada state the following in Eli Lilly, above:

[54] […] The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independent place in this determination.

59 Labour arbitration jurisprudence also indicates that the fundamental rule of written settlement interpretation in the labour context is the same as it is for contract and statutory interpretation. That is, the words must be given their plain and ordinary meaning unless the result would be absurd or it is apparent from the structure of a provision or the settlement read as a whole that a different or special meaning is intended… Words in a contract take their meaning from the context in which they are used and the intent of the parties (Eli Lilly, above).

60 Thus, in my view, the parties’ after the fact submissions to the decision-maker on their subjective intentions have little relevance and should not have been the sole basis of the Decision. Rather, the decision-maker should have based her determination on an interpretation of the terms of the settlement agreement and the context in which it was made. Even if the wording was not clear, and for that reason some reliance on extrinsic evidence were permissible, in the absence of any reasons for accepting one party’s interpretation over the other, there is no reasonable basis for merely adopting management’s interpretation.

61 Given the foregoing, in my view, this matter should be remitted back on the basis that the decision-maker erred in basing her its [sic] decision solely on management’s interpretation of the settlement agreement which was not reasonably supported by the record. Further, as to the decision-maker’s jurisdiction to consider the grievance, the reasons do not provide justification, transparency and intelligibility as to the decision making process and do not permit this Court to determine whether the Decision is within the range of acceptable outcomes defensible in respect of the facts and the law … .

41        The bargaining agent referred me to United Nurses of Alberta, Local 121-R. v. Calgary Regional Authority, [2000] A.G.A.A. No. 69 (QL) (“United Nurses”), which states as follows at paragraphs 24 and 25:

24 We are also of the view that arbitral authority requires clear language “to deprive employees of any rights under the collective agreement while they are receiving WCB payments” …

25 The first observation that we would make with respect to this Collective Agreement is that there is no express provision in the agreement that says employees receiving payments under Article 20.01 will not accrue vacation credits under 17.02. In this Collective Agreement there are such clear expressions of such intent in other circumstances. For example, Article 19.09 provides that “sick leave credits shall not accumulate during periods of illness or injury”. So it may be argued that failure to make such an intent clear and precise, having regard to the protection given by injured workers in Article 20.01 means that there was no intent to deprive workers receiving WC benefits of their vacation accrual.

42        I was referred to Klock v. Canada Revenue Agency, 2009 PSLRB 99, which was a case in which an employee applied for pre-retirement leave that had as a condition a requirement that the employee had to have a minimum of 30 years of service and had to have reached age 55 to qualify. The term “service” was not defined in the collective agreement, and while the employee had 30 years of service, it was not continuous or all pensionable. The CRA denied the employee the leave and relied on its internal interpretation bulletins. The PSLRB disagreed with the CRA’s interpretation, stating at paragraph 23 as follows:

[23] The employer also argued that its position is supported by a long standing interpretation reflected in several bulletins issued in 2000, 2001 and 2004. Those bulletins may be useful to the employer’s managers by allowing them to provide a uniform interpretation of the collective agreement, but they are of no use in this case because they are not negotiated documents. The interpretation provided by the bulletins is nothing more than the interpretation of one party to the collective agreement, and in that respect, it does not have more weight than the interpretation given by the other party.

43        The bargaining agent submitted that the situation in Klock is very similar to this case. The CRA is trying to restrict or limit taking the leave based on wording that was not defined in the collective agreement.

44        In Foote v. Treasury Board (Department of Public Works and Government Services), 2009 PSLRB 142, the PSLRB held that adding restrictive provisions to a collective agreement can be a slippery slope; such changes should be dealt with at the bargaining table.

45        The bargaining agent invited me to follow the approach set out in General Spring Products Ltd. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1524 (1971), 23 L.A.C. 73, in which the arbitrator held that the doctrine of accepting extrinsic evidence to prevent a party from advancing an argument based on the plain meaning of the words of a collective agreement should be applied with the greatest of care.

2. For the employer

46        The 2012 collective agreement contains three qualifiers to which the PIPSC referred for an AFS bargaining unit employee to take personal leave: first, the member must be an employee; second, a minimum of five days’ notice is required; and third, the leave has to be at a mutually convenient time for the employee and the employer (subject to operational requirements). There are in fact two more qualifiers: the leave must not be cumulative (it is only for the fiscal year), and it is for up to 15 hours at the most.

47        The language in the 2012 collective agreement is open to interpretation. It is different. The employer’s interpretation is based on each fiscal year and on up to 15 hours or two working days.

48        The bargaining agent stated that it does not dispute that the volunteer leave hours under clause 17.22 of the 2009 collective agreement were converted. This demonstrates the intent of the parties, which was to add an additional personal leave day.

49        The employer submitted that it had an agreement with the bargaining agent at the bargaining table as to how the new clause 17.21 of the 2012 collective agreement was to be implemented, and after the 2012 collective agreement was signed, the bargaining agent said “No”.

50        Extrinsic evidence is permitted to disclose the true intent of the parties.

51        With respect to United Nurses and Foote, the wording has to be clear to deprive a party of a right. There is no clear language in this case.

52        Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 at paragraph 27, states as follows: “First, a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement …”

53        Under section 229 of the Act, neither an adjudicator nor the Board can render a decision having the effect of requiring amending a collective agreement. The bargaining agent is asking the Board to amend the collective agreement by allowing an extra day of leave.

54        The employer also referred me to paragraph 11 of Wamboldt, stating that the facts therein are similar in nature to those found in the present case. That paragraph states as follows:

[11] By way of contrast, clause 14.06(a) of the collective agreement is broad and without limit. The only considerations with respect to the leave it grants are the following:

a. the employer’s operational requirements;

b. the person is a party to an adjudication; and

c. there is an adjudication scheduled.

55        The employer also referred to Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Limited, 2002 NBCA 30; Professional Institute of the Public Service of Canada v. Treasury Board, 2011 PSLRB 46 (“PIPSC 2011”); and Stevens v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 34.

B. Breach of the collective agreement

1. For the bargaining agent

56        The 2012 collective agreement was signed on July 10, 2012, and expired on December 21, 2014. Clause 47.02 provides that its provisions become effective on the date it is signed; therefore, clause 17.21 of the 2012 collective agreement came into effect on that day. And as of that day, AFS bargaining unit members subject to the 2012 collective agreement were entitled to 15 hours of personal leave.

57        Despite those members being entitled to 15 hours of personal leave, on August 9, 2012, the CRA issued Bulletin 2012-001, which restricted personal leave in the 2012-2013 fiscal year to only 7.5 hours if an AFS bargaining unit member had already used the volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012. The CRA took the position that those bargaining unit members who had taken the volunteer leave hours under clause 17.22 of the 2009 collective agreement during the period between April 1, 2012, and July 10, 2012, could not take the “extra” 7.5 hours. Bulletin 2012-001 is clearly contrary to the provisions of the 2012 collective agreement.

58        At paragraph 54 of Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, the Supreme Court of Canada stated as follows:

54 The trial judge appeared to take Consolidated–Bathurst to stand for the proposition that the ultimate goal of contractual interpretation should be to ascertain the true intent of the parties at the time of entry into the contract, and that, in undertaking this inquiry, it is open to the trier of fact to admit extrinsic evidence as to the subjective intentions of the parties at that time. In my view, this approach is not quite accurate. The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independent place in this determination.   

59        When it negotiated and entered into the 2012 collective agreement, the CRA might have had on its mind that if an AFS employee had taken volunteer leave under the 2009 collective agreement, he or she would not receive the full 15 hours of personal leave under the 2012 collective agreement. But reading that into clause 17.21 of the 2012 collective agreement would go against the law.

60        The bargaining agent referred me to Foote, in which the adjudicator at paragraph 26 quoted the New Brunswick Court of Appeal in Irving Pulp & Paper Ltd. as follows:

…

… It is accepted that the task of interpreting a collective agreement is no different than that faced by other adjudicators in construing statutes or private contracts: see D.J.M. Brown & D.M. Beatty, Canadian Labour Arbitration, (3^rd Ed.), looseleaf (Aurora, Ont.: Canada Law Book, Inc., 2001) at 4-35. In the contractual context, you begin with the proposition that the fundamental object of the interpretive exercise is to ascertain the intention of the parties. In turn the presumption is that the parties are assumed to have intended what they have said and that the meaning of a provision of a collective agreement is to be first sought in the express provisions. In searching for the parties’ intention, text writers indicate that arbitrators have generally assumed that the provision in question should be construed in its normal or ordinary sense unless the interpretation would lead to an absurdity or inconsistency with other provisions of the collective agreement: see Canadian Labour Arbitration at 4-38. In short, the words of a collective agreement are to be given their ordinary and plain meaning unless there is a valid reason for adopting another. At the same time, words must be read in their immediate context and in the context of the agreement as a whole. Otherwise, the plain meaning interpretation may conflict with another provision.

…

61        Foote alludes to the proposition set out at s. 229 of the Act, which states that an adjudicator’s or the Board’s decision may not have the effect of requiring the amendment of a collective agreement. There are no grounds to intervene, even if it does appear unfair that some AFS bargaining unit members received the equivalent of three days of personal and volunteer leave in fiscal year 2012-2013 and others, only two days. Quite frankly, it is more unfair to punish those who actually used their volunteer leave hours for a charitable cause.

62        An adjudicator cannot alter the 2012 collective agreement to add a restriction to clause 17.21 based on the fact that certain AFS bargaining unit members took volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012. The bargaining agent referred me to Delios FCA, which upheld the Board’s decision in Delios.

63        When the parties wanted to restrict a leave entitlement, they did so in writing. In fact, clause 17.21 contains two restrictions. The first is that leave may be granted or denied based on operational requirements, and the second is that the AFS bargaining unit member must provide a minimum of five days’ notice. The CRA can deny the requested leave for operational reasons or if the minimum five days of notice has not been provided. In Delios, at paragraph 19, the PSLRB addressed the issue of restrictions placed on leave provisions, stating as follows:

[19] … where the parties intended to place restrictions on the accumulation of leave entitlements under the collective agreement, they have done so quite explicitly. As an example, clause 14.08 illustrates such an approach:

14.08 An employee shall not earn leave credits under this Collective Agreement in any month for which leave has already been credited to him under the terms of any other collective agreement to which the employer is a party or under other rules or regulations of the Employer.

[Emphasis added]

64        Paragraph 22 of Delios states as follows:

[22] … where the parties to collective bargaining have agreed to place a temporal or other limitation on a leave entitlement arising under the collective agreement, they have done so explicitly. Since the parties have not done so in clause 17.21, I have no reason to look beyond the plain and ordinary wording agreed on by the parties in that clause. I can find no sound basis in the collective agreement, and certainly not in the preamble of the agreement as argued by the employer, that would persuade me to do otherwise, and I cannot construe that provision as containing an implied limitation that would have the same effect as the clauses quoted above.

65        The bargaining agent referred me to clauses 15.07(c) and (d) of the 2012 collective agreement, which are examples of how the parties have addressed situations involving leave issues in which transitional provisions are required and are dealt with. Those clauses state as follows:

15.07        Carry-Over and Liquidation of Vacation Leave

…

(c) Notwithstanding paragraph 15.07(a) and subject to paragraph 15.07(d), if on the date of signing of this Agreement or on the date an employee becomes subject to this Agreement, an employee has more than two hundred and sixty two decimal five (262.5) hours of unused vacation leave credits earned during previous years, a minimum of seventy five (75) hours per year shall be granted, scheduled by mutual consent or paid in cash by March 31^st of each year, commencing on March 31, 2001 until all vacation leave credits in excess of two hundred and sixty two decimal five (262.5) hours have been liquidated. Payment shall be in one (1) installment per year, and shall be at the hourly rate of pay as calculated from the classification prescribed in the certificate of appointment of his substantive position on March 31st, of the current vacation year.

Paragraph 15.07(d) applies to employees classified as AU and MG-AFS (AU) (as outlined in Appendix E) who have a balance of earned but unused vacation leave credits in excess of two hundred and sixty-two decimal five (262.5) hours on the date of signing this Collective Agreement only.

(d) Employees with a balance of earned but unused vacation leave credits in excess of two hundred and sixty two decimal five (262.5) hours will have those excess hours placed in a separate vacation leave bank to be used or liquidated, subject to operational requirements, upon application by the employee and at the concurrence of the Employer. Prior to termination or retirement, an employee can liquidate up to one-third (1/3) of this vacation leave bank each fiscal year. These liquidated vacation leave credits shall be paid at the employee’s hourly rate of pay as calculated from the classification prescribed in his certificate of appointment of his substantive position on the date of the request. Such request shall not be unreasonably denied.

[Emphasis in the original]

66        The bargaining agent also referred me to clause 15.17 of the 2012 collective agreement, which is the replacement clause for the former marriage leave provision, which was converted to a one-time five-day leave clause. It also contained transitional provisions. Clause 15.17 states as follows:

15.17

a)       Employees shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay on the first day of the month following the employee’s second (2^nd) anniversary of service as defined in clause 15.03.

Transitional provisions

b)       The vacation leave credits provided in clause 15.17(a) shall be excluded from the application of clause 15.07 (a), (b) and (c) dealing with the carry-over and/or liquidation of vacation leave.

67        The CRA is experienced in negotiating and drafting collective agreements.

68        The bargaining agent requested that the Board do the following:

1. declare that the CRA has breached the 2012 collective agreement by restricting personal leave under clause 17.21 to 7.5 hours for any AFS bargaining unit member who took volunteer leave hours under clause 17.22 of the 2009 collective agreement between April 1, 2012, and July 10, 2012;
2. declare that AFS bargaining unit members were entitled to take 15 hours of personal leave under clause 17.21 of the 2012 collective agreement in fiscal year 2012-2013;
3. declare that AFS bargaining unit members are entitled to be compensated for their unused entitlement, up to a maximum of 7.5 hours;
4. order the CRA to compensate all affected AFS bargaining unit members within 120 days of the date of this decision; and
5. remain seized of the matter pending the fulfilment of the terms of its order.

69        The bargaining agent referred me to Canada (Attorney General) v. Canadian Merchant Service Guild, 2009 FC 344, which deals with the remedial powers of the Board or of its adjudicators under s. 232 of the Act. In that case,the Court dealt with an award of retroactive compensation. It stated at paragraph 17 that s. 232 of the Act permits such an award.

2. For the employer

70        The employer referred me to Waterloo Region Board v. Unifor Local 87-M, [2014] O.L.A.A. No. 416 (QL; “Waterloo”), which adopted an expansive approach and admitted contextual evidence as to whether an ambiguity existed. At paragraph 33, it states as follows:

33 Having particular regard to Sattva, Dumbrell and Air Canada, it would be inappropriate to ignore the context of the instant case in my opinion. With respect, it appears to me that the Sattva, Dumbrell, Air Canada approach to the admissibility of factual circumstances (context/factual matrix) is attractive because it is practical, direct, and makes common sense. While at root the result may bear strong resemblance to aspects of Leitch, the approach is not encumbered by any formal necessity to first demonstrate ‘ambiguity’, or some sufficiency of ambiguity, as a precondition to the admission of otherwise illuminating evidence. It might also be noted that the language used in these judgements also bears resemblance to the analysis provided in Consolidated Bathurst set out above in paragraph 18 where Estey, J. referred to “commercial atmosphere” and the promotion of “a sensible commercial result”.

71        At paragraph 34, the arbitrator does submit that decision makers must exercise restraint when admitting extrinsic evidence. That paragraph states as follows:

34 Sattva and Dumbrell also provide guidance as to when contextual evidence should be admitted. Both judgments make it clear that a decision-maker should exercise restraint. The inquiry should not be directed at what the subjective intentions of the parties may now be said to have been. It means that the words used by the parties to express their intention should retain presumptive prominence but context should not be ignored.

72        The CRA submitted that this expansive approach to external evidence includes past practices and circumstances that exist at the time. The arbitrator adopted that approach in Air Canada v. Air Canada Pilots Association, [2012] O.L.A.A. No. 164 (QL).

73        Paragraph 31 of Waterloo refers to Air Canada, in which the arbitrator there stated at paragraphs 39 and 40 as follows:

39 … As with any issue of interpretation, I must give effect to the language used by the parties, albeit read within the context of the specific clause or provision, read within the context of the agreement as a whole and read with the context within which the disputed letter was negotiated into the agreement. A failure to consider these contextual factors renders the arbitrator as nothing more than a linguistic technician. An arbitrator, however, is far more than that. An arbitrator is required to bring to bear a specialized knowledge of labour relations generally and of collective agreement applications specifically in order to decipher the meaning of the contested language read in context. The objective must always be to find the meaning of the disputed language within the context of the particular collective bargaining relationship.

40 If there is any doubt that a contextual analysis is the correct way to proceed, that doubt is dispelled on a reading of the judgement of the Ontario Court of Appeal in re: Dumbrell… In that case, the Court of Appeal, reviewing a judgement of the lower court with respect to whether a contract of employment provided for remuneration for projects completed after the date of its termination, spoke eloquently and forcefully concerning the need to engage in a contextual as distinct from a linguistic analysis. While concluding that the inquiry must be into the meaning of the words as distinct from the subjective intention of the parties, the Court cautioned that “the meaning of the written agreement must be distinguished from the dictionary and syntactical meaning of the words used in the agreement.” The court went on:

No doubt, the dictionary and grammatical meaning of the words (sometimes called the “plain meaning”) used by the parties will be important and often decisive in determining the meaning of the document. However, the former cannot be equated with the latter. The meaning of a document is derived not just from the words used, but from the context or the circumstances in which the words were used …

The text of the written agreement must be read as a whole and in the context of the circumstances as they existed when the agreement was created. The circumstances include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement …

A consideration of the context in which the written agreement was made is an integral part of the interpretative process and is not something that is resorted to only where the words viewed in isolation suggest some ambiguity… .

There is some controversy as to how expansively context should be examined for the purposes of contractual interpretation … .

[Emphasis in the original]

74        The bargaining agent suggested that the wording of the 2012 collective agreement is not ambiguous, but the CRA submitted that it is more complex than just looking at the wording. When the context of the 2012 collective agreement is read as a whole, it does not mean what the bargaining agent suggests it means.

75        The CRA referred me to PIPSC 2011, which dealt with the application of clause 15.18 of a collective agreement. That clause granted a one-time vacation leave of 37.5 hours to all employees, which was to replace the one-time marriage leave of 37.5 hours. At issue was when an employee became a member of the bargaining unit that had the entitlement but had been in another bargaining unit that had also had the entitlement, and the employee had already been credited that extra leave under a different collective agreement. At paragraphs 38, 39, and 46, the adjudicator stated as follows:

38 The bargaining agent asserts that clause 15.18 of the collective agreement is an unambiguous provision with a plain meaning that reveals the intent of the parties to confer an entitlement to “thirty-seven decimal five (37.5)” hours of vacation leave on any employee who is, or becomes, a member of the AV bargaining unit and who has completed two years of service within the public service, with “service” as defined under clause 15.03(a). It maintains that clause 15.18 states no limitation on the “one-time entitlement” that might arise from the operation of similar provisions in other collective agreements. For the bargaining agent, an adjudicator has no reason to depart from a strict construction of the words of clause 15.18 and must sustain its interpretation on that basis.

39 In paragraph 2 of the “Agreed Statement of Facts,” the parties attested that clause 15.18 of the collective agreement “… was introduced to replace the previous existing language related to marriage leave …” Expressed more colloquially, the evidence before me strongly suggests that a bargain was struck in negotiations. A previous entitlement to marriage leave was removed from the collective agreement and was replaced by the special “one-time entitlement” to 37.5 hours of vacation leave found in clause 15.18. The same result appears in each of the three other collective agreements between the parties submitted in evidence (Exhibits G-1 to G-3) — none now contains a marriage leave provision; each contains a provision essentially the same as clause 15.18.

…

46 Although not necessary to my analysis, my views about the meaning of clause 15.18 of the collective agreement are reinforced by a very practical sense of what occurred in the bargaining relationship between the parties. By the agreement that apparently was struck, employees gave up the previous entitlement to marriage leave and received as a replacement a one-time entitlement to 37.5 hours of vacation leave provided that they had two years of service in the public service, or once they reached that two-year service mark. In the context of the matter before me and the collective agreements that the parties provided, it seems most unlikely that any employee has been required to give up marriage leave twice. How, then, should they acquire the special vacation leave quid pro quo twice by virtue of moving from one collective agreement to another?

76        The context is the conversion of one type of leave, volunteer leave, which was found at clause 17.22 of the 2009 collective agreement, to an additional 7.5 hours of personal leave, covered by clause 17.21 of the 2012 collective agreement, for a total of 15 hours (which, formerly, at clause 17.21 of the 2009 collective agreement, was only 7.5 hours).

77        Clearly, what was happening was that the former 15 total hours of leave found at clauses 17.21 and 17.22 of the 2009 collective agreement for personal and volunteer leave were consolidated, the 7.5 hours of volunteer leave became an additional 7.5 hours of personal leave, and the former clause 17.22 (in the 2009 collective agreement) was eliminated. No more leave was ever to be added. There was no intent to saddle the CRA with either a loss of productivity or a $700 000 financial loss. The CRA referred me to Wamboldt, at paragraphs 27 and 28, which state as follows:

27 First, a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement … .

28 Second, parties to a collective agreement are generally considered to have attempted to arrive at an agreement that is easy to apply in daily practice. Hence, an interpretation that produces a clear result is generally to be preferred to one that produces a messy or uncertain result, if only because a clear result is more likely to produce and maintain the “… harmonious and mutually beneficial relationships between the Employer, the Alliance, and the employees …” that is one of the purposes of the collective agreement; see clause 1.01. In short, an interpretation that makes applying the provision easy in practice as a rule is to be preferred over one that makes that application difficult if not impossible.

78        The employer submitted that the bargaining agent could not have intended that the 2012 collective agreement would have treated employees differently.

79        The employer submitted that the bargaining agent’s interpretation of the 2012 collective agreement would cause a loss of productivity, which would not have been intended.

80        The employer submitted that the bargaining agent has not met the burden of proof and as such that the grievance should be dismissed.

3. The bargaining agent’s reply

81        With respect to the argument that the bargaining agent’s suggested interpretation is absurd due to the financial impact, Mr. Burke’s evidence was that there were roughly 12 000 members in the AFS group making an average of $340 per day. At an estimated 250 days of work per person per year, the salary envelope for that group would be in the range of $1 billion, and $700 000 is 0.0007% of the salary envelope cost to the CRA.

82        There would be no loss of productivity, as other employees would cover employees on leave, just like other forms of leave in which an employee is away.

83        Paragraph 24 of Delios states as follows with respect to issues of unfairness and inequality:

24 … The employer argues that the result of the grievor’s interpretation of clause 17.21 leads to an inequitable and unfair situation, as it results in the grievor benefiting from personal leave twice in the same fiscal year. It may be so, but it is not a valid reason for me not to give effect to the plain and ordinary language of the collective agreement. Any perceived unfairness or inequity resulting from the application of the collective agreement should be resolved at the bargaining table.

84        Unlike the situation in Delios, in which employees could change bargaining units at any time and therefore collect personal leave again, in this case, it would only be a one-time event and would not occur in any other fiscal year.

85        There is no evidence that the intent was to not provide an additional day and that personal leave was to be restricted if an AFS bargaining unit employee had already taken the volunteer leave hours before the 2012 collective agreement was executed.

86        If the CRA wanted to restrict the use of the personal leave, it was incumbent upon it to negotiate and have transitional language placed in the 2012 collective agreement; it did not, despite the fact that there are transitional provisions for other issues in the collective agreement.

87        The CRA relied on Waterloo and Eli Lilly to try to include contextual evidence. The bargaining agent’s position is that there has to be something — some word or phrase that is not clear — to allow “context” to come into play. In Waterloo, the term used was “all sales”, and the arbitrator had to determine what “all sales” meant in the context of the agreement. That situation does not exist in this case.

88        There is no evidence that supports more than a subjective intention that the personal leave would be limited if the previous volunteer leave had already been taken. The PIPSC March Memo does not speak to the transition and as such cannot imply a restriction when the collective agreement expressly provides a benefit or entitlement.

89        The bargaining agent referred me to paragraph 32 of Waterloo, which quotes in part from Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53 at paragraph 57, as follows:

…

While the surrounding circumstances will be considered in interpreting the terms of a contract they must never be allowed to overwhelm the words of that agreement [authorities omitted]. The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and object intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract [authority omitted]. While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement [authority omitted]… .

90        That paragraph refers to the same thing set out in Eli Lilly — the adjudicator cannot create a new agreement. While contextual evidence can be relied upon, it cannot be relied upon to create a restriction that does not exist.

IV. Reasons

A. Request to admit extrinsic evidence

91        The employer submitted that extrinsic evidence should be allowed to assist in interpreting the 2012 collective agreement and to assist the adjudicator in understanding the parties’ intention with respect to clause 17.21 of the 2012 collective agreement.

92        In cases of collective agreement interpretation, the academic authorities and jurisprudence have consistently held that adjudicators and labour boards should first look at the words used in the collective agreement not only in the context of a particular clause but also in the collective agreement as a whole.

93        In Canadian Labour Arbitration, paragraph 3:4400 on “Extrinsic Evidence” states as follows:

Parol or extrinsic evidence, in the form of either oral testimony or documents, is evidence which lies outside, or is separate from, the written document subject to interpretation and application by an adjudicative body. Although there are numerous exceptions, the general rule at common law is that extrinsic evidence is not admissible to contradict, vary, add to or subtract from the terms of an agreement reduced to writing. If the written agreement is ambiguous, however, such evidence is admissible as an aid to the interpretation of the agreement to explain the ambiguity but not to vary the terms of the agreement. The two most common forms of such evidence in labour arbitrations are the negotiating history of the parties leading up to the making of a collective agreement, and their practices before and after the making of the agreement. And in addition to its use as an aid to interpretation of a collective agreement or a settlement agreement, or to establish an estoppel, it may be adduced in support of a claim for rectification. However, for such evidence to be relied upon it must be “consensual”. That is, it must not represent the “unilateral hopes” of one party. Nor can it be equally vague or as unclear as the written agreement itself.

…

94        The Supreme Court of Canada in Eli-Lilly stated at paragraphs 54 through 56 as follows:

54 The trial judge appeared to take Consolidated–Bathurst to stand for the proposition that the ultimate goal of contractual interpretation should be to ascertain the true intention of the parties at the time of entry into the contract, and that, in undertaking this inquiry, it is open to the trier of fact to admit extrinsic evidence as to the subjective intentions of the parties at that time. In my view, this approach is not quite accurate. The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independent place in this determination.

55 Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. In the words of Lord Atkinson in Lampson v. City of Quebec (1920), 54 D.L.R. 344 (P.C.), at p. 350:

… the intention by which the deed is to be construed is that of the parties as revealed by the language they have chosen to use in the deed itself … . [I]f the meaning of the deed, reading its words in their ordinary sense, be plain and unambiguous it is not permissible for the parties to it, while it stands unreformed, to come into a Court of justice and say: “Our intention was wholly different from that which the language of our deed expresses… .”   

56 When there is no ambiguity in the wording of the document, the notion in Consolidated-Bathurst that the interpretation which produces a “fair result” or a “sensible commercial result” should be adopted is not determinative. Admittedly, it would be absurd to adopt an interpretation which is clearly inconsistent with the commercial interests of the parties, if the goal is to ascertain their true contractual intent. However, to interpret a plainly worded document in accordance with the true contractual intent of the parties is not difficult, if it is presumed that the parties intended the legal consequences of their words. This is consistent with the following dictum of this Court, in Joy Oil Co. v. The King, [1951] S.C.R. 624, at p. 641:

… in construing a written document, the question is not as to the meaning of the words alone, nor the meaning of the writer alone, but the meaning of the words as used by the writer.

95        At paragraphs 57 and 58 of Eli-Lilly, the Supreme Court of Canada went on to find that there was no ambiguity in the contract between the parties and that the intent was clear based on the plain wording of the contract. As such, the Court did not resort to any of the extrinsic evidence submitted as to the subjective intentions of the parties at the time of drafting the contract.

96        The difficulty with the employer’s position is that clause 17.21 of the 2012 collective agreement is not in any way unclear. It is worded exactly the same as the clause in the 2009 collective agreement save that “7.5 hours” was changed to “15 hours”. There is no ambiguity in the clause whatsoever. Every employee governed by the 2012 collective agreement is entitled to 15 hours of personal leave, which he or she can take during each fiscal year, provided the employer’s operational requirements allow it and the employee has given a minimum of five working days’ notice.

97        By virtue of s. 107 of the Act, the parties to the 2009 collective agreement were statutorily bound to the terms and conditions contained in that agreement, in which they had agreed that each AFS bargaining unit member was entitled to 7.5 hours of personal leave and 7.5 hours of volunteer leave. The 2012 collective agreement came into effect, according to clause 47, on July 10, 2012; this caused a gap because the former clause 17.22 of the 2009 collective agreement, which granted each AFS bargaining unit employee 7.5 hours of volunteer leave, was still a binding term and condition of employment between April 1, 2012, and July 10, 2012, and as such, according to the evidence, between 2100 and 2150 AFS bargaining unit employees used the volunteer leave as found in clause 17.22 of the 2009 collective agreement.

98        There is no transitional provision to address this discrepancy. However, that does not render clause 17.21 of the 2012 collective agreement unclear or ambiguous or mean that it led to an absurd result. As such, I was not convinced that there is any reason to depart from the rule and apply the exception. I was not persuaded to permit the introduction of extrinsic evidence, and so I ruled that it could not be introduced.

B. The grievance

99        The gap between the start of the employer’s fiscal year on April 1, 2012, and the coming into effect of the 2012 collective agreement on July 10, 2012, created an issue that led to the filing of this grievance. The 2012 collective agreement removed in its entirety clause 17.22 of the 2009 collective agreement, which had granted each AFS bargaining unit employee 7.5 hours of volunteer leave. In turn, the 2012 collective agreement altered the personal leave clause (found at clause 17.21 of both the 2009 and 2012 collective agreements) by increasing the personal leave provision from 7.5 to 15 hours of leave. Other than that change, clauses 17.21 of both the 2009 and 2012 collective agreements are identical.

100        As set out earlier in this decision, the difficulty lay in that AFS bargaining unit employees (somewhere in the range of 2100 and 2150 of them) applied for and received their 7.5 hours of volunteer leave between April 1, 2012, and July 10, 2012. This was a benefit that they were rightly entitled to ask for and receive as per the 2009 collective agreement and by virtue of s. 107 of the Act, which states as follows:

107 Unless the parties otherwise agree, and subject to subsection 125(1), after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer and the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

101        As of July 9, 2012, every AFS bargaining unit employee who had not otherwise applied for, been granted, and used his or her 2009 collective agreement volunteer leave hours (clause 17.22) would still have had that leave, and on July 10, 2012, it was gone.

102        The facts of this case are similar to those in Delios. It should be noted that Delios involved interpreting the same clause, 17.21, which was about personal leave, in the AFS bargaining unit collective agreement between the CRA and the PIPSC that was in force immediately before the 2009 collective agreement came into force. Delios involved an employee new to the AFS bargaining unit who had moved to it from another bargaining unit at the CRA and who had used a personal leave day when she was a member of that other bargaining unit (albeit it was by virtue of a different collective agreement negotiated and entered into between the CRA and a different bargaining agent), and then, when she moved to the AFS bargaining unit, she requested personal leave under clause 17.21 and was denied on the basis that she had already taken a personal leave day.

103        The adjudicator held that “employee”, for the purposes of the collective agreement in Delios, meant an employee defined by the Act and a member of the specific bargaining unit to which the collective agreement applied (the AFS bargaining unit); it did not apply employer-wide. The adjudicator distinguished the personal leave at clause 17.21 from other leave such as personal needs leave and family related leave (found at clauses 17.11 and 17.14 respectively of the collective agreement in question), which placed a restriction on employees’ ability to use it, based on their “total period of employment in the Public Service …”. After comparing the wording in clauses 17.11 and 17.14 with 17.21, the adjudicator stated as follows at paragraph 22:

22 This comparison of wordings leads me to the understanding that where the parties to collective bargaining have agreed to place a temporal or other limitation on a leave entitlement arising under the collective agreement, they have done so explicitly. Since the parties have not done so in clause 17.21, I have no reason to look beyond the plain and ordinary wording agreed on by the parties in that clause. I can find no sound basis in the collective agreement, and certainly not in the preamble of the agreement as argued by the employer, that would persuade me to do otherwise, and I cannot construe that provision as containing an implied limitation that would have the same effect as the clauses quoted above.

104        While the facts of this case are not exactly the same as those in Delios, as in that case, the employer suggests that a restriction be implied in the interpretation of clause 17.21, even though there is no explicit restriction. It is clear that the parties to the 2012 collective agreement have placed restrictions or clarifications on leave clauses. Leave in general is covered by article 14, vacation leave by article 15, sick leave by article 16, and other leave with or without pay by article 17.

105        As set out in Delios, in clauses 17.11 and 17.14, the parties have placed restrictions on leave by using the phrases “… during the employee’s total period of employment in the public service” (clause 17.11) and “… during an employee’s total period of employment in the public service” (clause 17.14). At clause 15.03, when dealing with vacation leave, the 2012 collective agreement uses the phrase “… all service within the public service, whether continuous or discontinuous, shall count toward vacation leave …”.

106        Clause 15.17 is a one-time 37.5-hour vacation leave entitlement (that was subject to the decision in PIPSC 2011) that replaced the former marriage leave. At clause 15.17, a restriction on the restriction in clauses 15.07(a), (b), and (c) is set out, stating that this leave is excluded from the requirement in clauses 15.07(a), (b), and (c), which addresses the carry over and liquidation of certain excess vacation leave credits.

107        It is abundantly clear to me that when, in the 2012 collective agreement, the parties wanted to place restrictions or exclusions, or exclusions on restrictions, on leave, they did so.

108        It is also amply clear that when the parties wanted to provide a transitional provision to the 2012 collective agreement, they did so. Clause 15.07 contains clauses (c) and (d), which deal with transitional provisions about the carry-over of unused vacation leave credits and that treat certain subsets of employees of the AFS bargaining unit differently and that provide for a transition as of the date the collective agreement was signed. Clause 15.07(c) contains the following transitional provision: “Notwithstanding paragraph 15.07(a) and subject to paragraph 15.07(d), if on the date of signing of this Agreement …” [emphasis added]. And foundbetween clauses 15.07(c) and (d) of the 2012 collective agreement is the following transitional provision:

Paragraph 15.07(d) applies to employees classified as AU and MG-AFS (AU) (as outlined in Appendix E) who have a balance of earned but unused vacation leave credits in excess of two hundred and sixty-two decimal five (262.5) hours on the date of signing of this Collective Agreement only.

[Emphasis in the original]

109        I turn next to the employer’s submission with respect to context. In the Air Canada decision, context came into play with the use of the term “aircraft”, which might or might not have included certain propeller-driven as opposed to jet-driven aircraft. The term was ambiguous. In Waterloo, which considered Air Canada, Sattva, and Dumbrell, the ambiguous term was “all sales”. In my opinion, the only term that may be considered ambiguous at clause 17.21 of the 2012 collective agreement is the term “operational requirements”; however, that term is not the subject of the grievance and there was no suggestion by the parties that the parties saw this term as ambiguous or an issue in this proceeding.

110        I am not persuaded that there is any ambiguity in the words, “… the employee shall be granted, in each fiscal year, up to fifteen (15) hours of leave with pay for reasons of a personal nature.”These words are not at all ambiguous or unclear. By their plain and ordinary meaning, they mean all employees are entitled to, every fiscal year, 15 hours of leave for them to use as they deem fit.

111        Volunteer leave, as it was found in the 2009 collective agreement, is not the same as personal leave. Although it consisted of the same number of hours as the personal leave contained in clause 17.21 of the 2009 collective agreement, volunteer leave was not leave that any AFS bargaining unit employee could take and do with as he or she saw fit. It was not leave for reasons of a personal nature but to volunteer for a charitable or community organization or activity (other than activities related to the Government of Canada Workplace Charitable Campaign). Assuming managers properly managed volunteer leave, it would have been granted only for its intended purpose. If an employee was not going to use it for volunteering at a charitable or community organization or activity, then it should not have been granted.

112        Mr. Burke’s contextual evidence is not particularly helpful to the employer. He stated that there were roughly 12 000 AFS bargaining unit employees, who earned an average of $340 per day. Based on that, he suggested that if the 2100 or 2150 AFS bargaining unit employees who already used the volunteer leave were granted the full 15 hours of personal leave instead of just converting the unused volunteer leave that AFS bargaining unit employees would have had (if it had not been used) for fiscal year 2012-2013, the cost to the employer would be in the range of $700 000.

113        Personal leave and the former volunteer leave are hours that each employee receives each fiscal year and that must be used in that particular fiscal year. They cannot be carried over or transferred. If an employee uses them each year, then that employee receives their benefit; however, if he or she does not use them, at the end of the fiscal year, the employee has lost their value. It is a contingent benefit to the employee and a contingent liability to the employer. In that sense, it is not unlike sick leave. While employees earn sick leave at a fixed rate, and are entitled to accumulate and carry it over, they can use those credits only for approved sick leave. If an employee leaves the public service (through termination of employment, retirement, or death), and he or she has banked sick leave credits, those credits are not liquidated and paid; they are lost, and in turn, they have cost the employer nothing.

114        At least since November 6, 2009, the date on which the 2009 collective agreement was signed, the employer and bargaining agent have agreed that each employee in the AFS bargaining unit is entitled to 7.5 hours of personal leave and 7.5 hours of volunteer leave. If I extrapolate Mr. Burke’s evidence, which both the employer and the bargaining agent did, it would be 12 000 employees at $340 per day times two, or $8 160 000 for each year of the duration of the 2009 collective agreement. However, that is a contingent amount that assumes that each and every AFS bargaining unit employee takes all his or her personal and volunteer leave hours. There is no evidence of the actual numbers. Without that information, it is impossible to know how much the real liability and cost is to the employer with respect to volunteer and personal hours. And it is impossible to state whether the employer would actually incur a cost and would have to pay money or if it would come out ahead and save money, assuming that it had actually budgeted for the full amount.

115        The employer referred me to PIPSC 2011, which dealt with the conversion of the former marriage leave provisions of collective agreements, which was changed to a one-time 37.5-hour vacation leave provision. PIPSC 2011 is distinguishable from this grievance because of the character of the leave. When it was the former marriage leave provision, while contingent on someone getting married, it was not time sensitive; in other words, if one did not use it, one did not lose it. As long as he or she remained employed and was getting married, then that employee was entitled to use the marriage leave. When it was converted to the one-time vacation leave entitlement, the leave completely changed, and no contingency was attached to it; indeed, that leave could be carried over and in fact under the 2012 collective agreement, it is not subject to the liquidation or non-carry-over clauses dealing with vacation leave.

116        Personal and volunteer leave as set out in the 2009 and 2012 collective agreements was and continues to be contingent both as a benefit to the employee and as a cost to the employer.

117        I find that clause 17.21 of the 2012 collective agreement is clear and unambiguous.

118        I am prepared to accept that the context in which clause 17.21 of the 2012 collective agreement was amended from the 2009 collective agreement was out of a desire to remove the former volunteer leave clause and to change it to personal leave. However, I find that the CRA’s submitted interpretation of clause 17.21 of the 2012 collective agreement goes beyond the interpretation of that clause or the context of the collective agreement as a whole and that it would amount to adding a term to the collective agreement, which I am prohibited from doing by virtue of s. 229 of the Act.

119        I allow the grievance and declare that the employer breached the collective agreement by not crediting all AFS bargaining unit employees 15 hours of designated personal leave as agreed to in the 2012 collective agreement.

120        The bargaining agent submitted that Canada (Attorney General) v. Canadian Merchant Service Guild stands for the proposition that I have the authority to order retroactive compensation under s. 232 of the Act and as such I should order the CRA to compensate any AFS bargaining unit member who used volunteer leave hours under clause 17.22 of the 2009 collective agreement and who applied for 15 hours of personal leave during fiscal year 2012-2013 and was not granted the full 15 hours of personal leave for reasons other than operational requirements or not giving the requisite minimum of five days’ notice (both requirements in clause 17.21).  

121        Section 232 of the Act places limitations where a policy grievance could have been the subject matter or is the subject matter of either individual or group grievances.  That limitation is on the relief to be granted.  At paragraphs 17 and 18 of Canada (Attorney General) v. Canadian Merchant Service Guild the Court states that s. 232(c) grants the Board the power to make a declaration that an interpretation be given and requiring the employer (or bargaining agent as the case may be) to interpret, apply or administer the collective agreement in a specified manner.  The Court goes on to state that the use of the word “required” in s. 232(c) is different than the wording in ss. 232(a) and (b) and therefore must mean something more than a simple declaration is contemplated, and that one of the ways that an agreement is to be applied and administered is to pay persons subject to the agreement in accordance with the manner as determined by the adjudicator.  The Court stated that permitting only a declaration and forcing the parties to deal with the fallout from the decision or possibly having to go through the process of subsequent individual or group grievances to secure payment would render the process futile and absurd.  The Court held that the words “requiring the employer to … apply and administer the collective agreement are sufficiently broad so as to contemplate an order for retroactive payment.” I agree with the reasoning of the Court.

122        For all of the above reasons, I make the following order:

V. Order

123        The grievance is allowed.

124        I declare that clause 17.21 of the 2012 collective agreement is clear and unambiguous.

125        I declare that the CRA breached the collective agreement by not crediting all AFS bargaining unit employees 15 hours of designated personal leave as agreed to in the 2012 collective agreement.

126        The CRA shall compensate any AFS bargaining unit member who used volunteer leave hours under clause 17.22 of the 2009 collective agreement and who applied for 15 hours of personal leave during fiscal year 2012-2013 and was not granted the full 15 hours for reasons other than operational requirements or not giving the requisite minimum of five days’ notice (both requirements in clause 17.21).

127        The compensation payable to each AFS bargaining unit member who is eligible for compensation by virtue of this order shall be the rate of pay that he or she would have received for the requested leave.

128        I shall remain seized of this matter to address any implementation issues with respect to this order for a period of 90 days.

129        The parties are to contact the Board’s registry within 30 working days of the date of this decision to advise it either that they have agreed to a time frame for paying the compensation set out in this decision or that they will arrange a mutually convenient time for a telephone conference with the adjudicator to discuss that time frame.

August 18, 2016.