Date: 20210630

File: 566-02-12658

 

Citation: 2021 FPSLREB 80

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Paul Taylor

Grievor

 

and

 

DEPUTY HEAD

(Canada Border Services Agency)

 

Respondent

Indexed as

Taylor v. Deputy Head (Canada Border Services Agency)

In the matter of an individual grievance referred to adjudication

Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Kourosh Farrokhzad, Public Service Alliance of Canada

For the Respondent: Allan Feldman, counsel

Heard by videoconference,

May 3, 2021.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] Paul Taylor (“the grievor”) was at all material times employed by the Treasury Board (TB or “the employer”) with the Canada Border Services Agency at the FB-05 group and level in Niagara Falls, Ontario.

[2] On September 2, 2014, the employer suspended the grievor without pay, effective that day. On October 30, 2014, the employer revoked his reliability status and terminated his employment. On November 20, 2014, the grievor filed grievances against the revocation of his reliability status security clearance and the termination of his employment. Those grievances were not resolved and were eventually referred to the Public Service Labour Relations and Employment Board (PSLREB) for adjudication, being board file nos. 566-02-12656 through 12658.

[3] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

[4] The grievances were originally scheduled to be heard by me between December 17 and 19, 2018, in Hamilton, Ontario. The Notice of Hearing was dated November 8, 2018, and was addressed to the grievor’s representative, Lindsay Cheong, at the Public Service Alliance of Canada (“the Alliance”), and Caroline Engmann, Counsel at the Department of Justice, TB Secretariat Legal Services, which was counsel for the employer.

[5] On December 12, 2018, the Board was advised that the parties had reached an agreement in principle and that they requested that the matter be postponed, to allow them to finalize their agreement. I granted the request, and the hearing was postponed.

[6] A notification of a settlement does not finalize a matter, which occurs only when a matter is disposed of by a decision rendered by the Board or by the withdrawal of the related grievance or complaint. As is normal in circumstances in which an agreement is reached but the grievance is or the grievances are not withdrawn, the Board’s registry follows up with the parties. That occurred in this matter, and in late 2020, correspondence received by the registry from the parties indicated that there was a dispute as to whether the settlement had been implemented. I held a case management conference on January 6, 2021, and the matter was scheduled to be heard by me from May 3 to 5, 2021, by way of videoconference.

[7] Before the commencement of the hearing, I spoke with the parties’ representatives to determine what was in issue with respect to the settlement and exactly what terms of it the grievor alleges had not been complied with by the employer. These discussions identified a narrow issue: given the employer’s position that the matter in question is not covered by the settlement, do I have jurisdiction to hear this dispute?

[8] Both the grievor’s and employer’s representatives suggested that witnesses might have to be called to discuss the settlement agreement. I advised them that the first question that required answering was whether the settlement agreement was ambiguous in its wording; if it was not, there was no need for parol evidence.

[9] I decided that the logical starting point would be the determination of my jurisdiction, and I heard arguments from the representatives. Upon hearing that argument, I adjourned the balance of the hearing to render written reasons on the jurisdictional question. The parties’ representatives provided me with information that is not in dispute and that gives the contextual background such that I can understand the nature of the dispute, including the objection to jurisdiction. For the purpose of this decision, the only document entered into evidence was the “Memorandum of Settlement” (“the MOS”).

II. Summary of the evidence

[10] The MOS with respect to the grievances identified as Board files 566-02-12656 through 12658 was signed between December 20, 2018, and January 2, 2019, and the following are the provisions relevant to the determination of the jurisdictional issue:

...

1. The Employer agrees to rescind the letters of revocation and termination, issued on October 29, 2014 and reinstatement employment and reliability status retroactive to September 2, 2014.

2. The Employer agrees to deploy the Grievor, an FB-05 Superintendent, from the Peace Bridge Port of Entry (Fort Erie) to an FB-05 Border Services Officer position (at the final salary step) at the National Targeting Centre (Ottawa) at a date mutually agreeable to the Grievor and the Employer, and eventual assignment to the Traveller Programs. By signing this MOU, the Grievor consents to be deployed and assigned.

3. The Employer agrees to pay employee-requested relocation expenses to the Grievor as per section 12.1 of the NJC Relocation Directive.

4. Within 45 days of the signing of this agreement, the Grievor agrees to provide the Employer with official T-4 Statements of Remuneration Paid for tax years, 2014, 2015, 2016, 2017 and 2018.

5. Within 120 days from the receipt of all T-4 Statement of Remuneration for tax years 2014 to 2018, the Employer agrees to reimburse the Grievor all salary and benefits retroactive to September 2, 2014 at the Grievor’s FB-05 group and level rate of pay in effect for that period, minus any earnings identified on the T4 statements without any break in service.

6. It is agreed by the parties that the receipt of the T-4 Statements of Remuneration Paid identified in paragraph 4 will not delay the recommencement of employment.

7. The Employer agrees to pay the grievor lost overtime opportunities calculated by taking an average of overtime hours worked by the grievor in the three years preceding September 2, 2014 for the period starting September 2, 2014 to the date of employment recommencement.

...

9. The Grievor certifies that the Employer has not made any representations or guarantees as to how the implementation of paragraphs 5 and 7 will be treated under the terms of the Income Tax Act, the Employment Insurance Act or any other applicable legislation.

10. The Grievor and the Bargaining Agent agree to withdraw file numbers 566-02-12656 to 12858 from adjudication before the FPSLREB within 10 (ten) working days of the Grievor and Employer confirming in writing that the following events have occurred as agreed to in paragraphs 1, 2, 3, 5, 7 and 8. The Bargaining Agent shall ensure that the appropriate written notification is sent to the FPSLREB and that this withdrawal is copied to the Employer.

...

15. The parties certify that they have read and understood the terms and conditions of this memorandum of settlement and agree that it constitutes a full and final settlement. The parties further certify that they have received independent advice prior to executing this memorandum of settlement and that they have freely and voluntarily entered into this memorandum of settlement after having an opportunity to fully consider and come to an understanding of its terms and conditions.

...

[Sic throughout]

 

[11] During some of the period after his termination and before his reinstatement, the grievor operated a business, of which I was not provided details, which appears to have generated some income. It also appears to be the instigation of the sole issue in dispute in relation to the MOS.

[12] According to the parties, the grievor recommenced his employment on May 14, 2019, and they confirmed that he received compensation from the date of his suspension (September 2, 2014) up to and until the end of December 2018. There is no dispute about this period. For the period from January 1 to May 14, 2019, the parties confirmed that the employer paid the grievor what his salary would have been, less an amount he reported as gross revenue from his business for that period. The grievor contends that the employer’s alleged failure to implement the MOS is grounded in its failure to pay him his salary for the period from January 1 to May 14, 2019, less an amount he earned as net income from his business, after taxes. The employer states that while they did pay him his salary for the period from January 1 to May 14, 2019, that period of time is not part of the MOS, and as such, it is not within my jurisdiction to deal with.

III. Summary of the arguments

[13] The employer referred me to Brown & Beatty, Canadian Labour Arbitration, 5^th Edition, Chapter 2 - Jurisdiction of the Arbitrator, British Columbia Government v. Union of Psychiatric Nurses, 1997 CarswellBC 2973, Lindor v. Treasury Board (Solicitor General - Correctional Services), 2003 PSSRB 10, U.F.C.W., Locals 175 & 633 v. Cuddy Food Products, 2003 CarswellOnt 5805, and Farhan v. Canada Revenue Agency, 2021 FPSLREB 48.

[14] The employer’s position is that the MOS did not cover any period after December 31, 2018. As such, any payments it made for this period were outside the MOS and therefore not within the Board’s jurisdiction.

[15] The grievor referred me to Amos v. Canada (Attorney General), 2011 FCA 38, Godbout v. Treasury Board (Office of the Co-ordinator, Status of Women), 2016 PSLREB 5, Air Canada v. CAW-Canada, Local 2213 (2002), 170 L.A.C. (4^th) 250, and Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514.

[16] The grievor submitted that I have jurisdiction and that the MOS is clear.

IV. Reasons

[17] The employer’s position is that its payment to the grievor for the period between January 1 and May 14, 2019, was outside the MOS and as such beyond my jurisdiction. I disagree.

[18] 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. 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.

...

 

[19] The Supreme Court of Canada in Eli‑Lilly & Co. v. Novopharm Ltd., [1998] 2 SCR 129, 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 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.

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.

 

[20] 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.

[21] Canadian Labour Arbitration, at paragraph 4:2100, 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.

 

[22] 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. I see no reason not to apply these basic laws of contract interpretation with respect to collective agreements to the MOS drafted and agreed to in this case. The parties were represented by sophisticated organizations that specialize in federal public sector labour relations. The employer had representatives in labour relations as well as legal counsel from the TB Legal Services unit, which has been representing the employer before this Board and its predecessors in labour and employment matters, including grievances, for decades. And the grievor was represented by the Alliance, a large, professional national bargaining agent organization, which has been representing different bargaining units, and tens of thousands of employees, in disputes with the employer, including grievances, before this Board and its predecessors, also for decades.

[23] The MOS is clear and unambiguous. At paragraph 1, the employer agrees to rescind the letters of revocation and to reinstate the grievor’s employment and reliability status as of September 2, 2014. At paragraph 2, the employer agrees that it will deploy the grievor from the work location he had been in when he was terminated, the Peace Bridge in Niagara Falls, to Ottawa. The details of where exactly he would be deployed to in Ottawa, and when, were left to the parties to iron out.

[24] At paragraph 4 of the MOS, the grievor agrees to provide the employer, within 45 days of the MOS’s signing, T-4 “Statements of Remuneration” (“T-4s”) for the taxation years of 2014 through to and including 2018. At paragraph 5, the employer agrees to, within 120 days of receiving the T-4s, reimburse the grievor all salary and benefits retroactive to September 2, 2014. The salary and benefits are at the FB-05 group and level.

[25] The MOS was signed at the end of December by everyone except the employer’s labour relations advisor, who signed it on January 2, 2019. In addition to rescinding the letters of revocation and reinstating the grievor, it is clear that the parties intended that he be reimbursed for his loss of income from the date his suspension took place, which was September 2, 2014.

[26] The employer suggests that because the start date for his recommencement of employment was unknown, it was not required to pay the grievor on a going-forward basis, and that the agreement was only until the end of 2018. In support, the employer points to the fact that paragraphs 4 and 5 reference the delivery of the T4s for only up to and including the end of 2018.

[27] “T-4” is a well-known term. It is an official document that an employer is required to deliver to an employee before a specified date (the last day of February in any given year), which records the income or salary that the employer paid that employee for the course of the previous calendar year, and it sets out the gross and net incomes as well as any deductions. In turn, people use T-4s to fill out their annual income tax returns. Anyone who has been employed and who has filed an income tax return would be familiar with the term “T-4”.

[28] Indeed, official forms required for the declaration of income or deductions under federal tax legislation begin with the letter prefix “T”. The T-5 is another well-known form; however, it is sent to a person with respect to interest income that investments have earned for that individual, such as savings bonds, guaranteed investment certificates, or savings accounts. Another is the T2202A. It is issued by educational institutions with respect to fees for tuition and books that may be deducted. A T2125 is a form with respect to business income. All these forms have been in existence for many years and are well known to Canadians who pay federal income tax and complete their annual tax returns.

[29] Based on the wording of paragraphs 1 through 5 of the MOS, it is clear and obvious that the employer and grievor agreed that he would be reimbursed his FB-05 salary from September 2, 2014, forward, less any other employment income for the years 2014 through 2018. This is known because of the reference to the term “T-4”. If he has no T-4s, he had no employment income, and hence, there should be no deductions from what the employer was to pay him.

[30] When one reads the MOS as a whole, it is clear that what is stated and is intended is that the grievor is to be reimbursed at the FB-05 level, effective back to September 2, 2014. For more clarity, it states that the amount or rate he is to be paid is at the FB-05 group-and-level rate of pay in effect for that period. It is well known that federal public sector employees who are members of a bargaining unit and are paid pursuant to a collective agreement have a classification level and that each level has salary grids at which at any given point during their employment, employees find themselves located. Each year on the anniversary of their hiring, they move up a level in the grid. Had the grievor not been terminated in 2014, he would have moved up in the grid, and his salary would have increased each year, until he reached the maximum on the grid. Therefore, the meaning in paragraph 5 of the MOS is that the grievor is to be reimbursed for all salary and benefits retroactive to September 2, 2014, at the rate of pay he would have been at during each specific year. There is no need to address 2019, because it had yet to start, and his rate of pay would be the one he was at when 2018 came to an end.

[31] However, this does not tell the full story. At paragraph 7, the employer also agrees to pay to the grievor lost overtime opportunities from September 2, 2014, “to the date of employment recommencement.” It is known that the grievor recommenced employment on May 14, 2019. As part of his settlement, therefore, he was entitled to be paid monies that represented lost overtime opportunities, from September 2, 2014, until May 14, 2019.

[32] On reading the entire MOS, it is clear that the parties contemplated that the grievor would be reimbursed his salary back to the date of his suspension, which is when his salary was stopped, and that it would be paid on a going-forward basis. It was also contemplated that at some point, the grievor would start working again. However, before that could happen, the employer had to deploy him to a position in Ottawa, where he had to move from Niagara Falls. The dates of the deployment and move were not set out in the MOS, as it is clear that they were unknown.

[33] However, it makes no sense whatsoever that the grievor would be paid from the date of his suspension in September of 2014 forward until the date of the signing of the MOS, or only until December 31, 2018, only to have it stop as of January 1, 2019, and still pay him lost overtime opportunities for the same period. The two are inextricably linked. One receives overtime opportunities only when working, and if they are to be reimbursed as well, then they have been lost.

[34] If there was any ambiguity in understanding what the parties contemplated, it is put to rest by the reference in paragraph 7 that states that payments for lost overtime would also be made and that the period covered was from the date of the suspension to the date of the employment recommencement. This clearly indicates that the parties contemplated that the grievor would be reimbursed until such time as he returned to actually working, as once reinstated, he was to be considered either at work or on some form of leave. He cannot be at work until there is a job for him, and given that the job was to be in another city, he would have had to relocate, which is also contemplated. Reading the agreement as a whole, it would be absurd to interpret it as meaning that the grievor would not be reimbursed until his recommencement of employment, and it is only logical that the date was not specified as the parties themselves did not know what it would be. Accordingly, I find that the period of time from January 1, 2019, to the date of the grievor’s recommencement is covered by the wording of the settlement agreement.

[35] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[36] The objection to jurisdiction is dismissed.

June 30, 2021.

John G. Jaworski,

a panel of the Federal Public Sector Labour Relations and Employment Board