|
Labour (Ont) - Collective Agreement Interpretation. Royal Ottawa Health Care Group v. OPSEU
In Royal Ottawa Health Care Group v. OPSEU (Ont Divisional Ct, 2025) the Divisional Court dismissed a employer's JR, here from a labour "arbitrator’s decision [that] upheld grievances filed by the respondent union on behalf of two bargaining unit members who were switchboard operators at the hospital".
The court considers general contractual interpretation (here Sattva) of the collective agreement, here under the appellant's argument regarding the admission of 'past practice' evidence:Did the arbitrator err in admitting evidence of past practice?
[7] The hospital submits the arbitrator erred by admitting evidence of past practice without considering and applying the test that governs its admissibility. In the hospital’s submission, past practice may only be used as an interpretive aid if there is an ambiguous provision in the collective agreement. There is also an established test in labour law, set out in the leading case of International Association of Machinists, Local 1740 and John Bertram & Sons Co. Ltd (1967), 1967 CanLII 1039 (ON LA), 18 L.A.C. 362 (Ont. Arb. Bd.), which was not applied.
[8] In my view, the arbitrator was entitled to admit evidence of the interpretation of the collective agreement in other departments of the hospital. The arbitrator cited Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, for the principle that contractual interpretation requires looking at the language of the collective agreement as a whole and in context. Sattva adopts an approach to contract interpretation “which directs courts to have regard for the surrounding circumstances of the contract – often referred to as the factual matrix.”: Sattva, at para. 46. According to Sattva, it is important to look to context because: “The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean”: Sattva, at para. 48, citing Lord Hoffman in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.). Sattva also cautions, at para. 57, that while the surrounding circumstances should be considered, “they must never be allowed to overwhelm the words of [the] agreement.”
[9] The arbitrator treated the evidence submitted by the union as contextual evidence she could consider because she expressly found it did not constitute past practice. She stated at para. 17 of her reasons:
Since the Union has not attempted to adduce extrinsic evidence, or tried to rely upon an estoppel, or rely upon a past practice, I need not deal with any of the other specific case law introduced by the Employer. The principles of interpretation in those cases are not in dispute. [10] The arbitrator went on to find, at para. 24, that “there is no ‘past practice’ evidence.” She explained that, other than the two switchboard operators, the parties agreed that full-time employees who were replaced in the hospital were entitled to either take the holiday or work it for premium pay.
[11] Although the hospital submits the evidence at issue here constituted “past practice”, it has not identified any specific markers of “past practice” evidence. Counsel acknowledges there may be a fine line between contextual evidence and evidence of past practice. I conclude it was open to the arbitrator in this case to treat the evidence as contextual.
[12] The union’s evidence was focused on an ongoing, contemporaneous practice, that was in place at the time the collective agreement was entered into, rather than a “past” practice. The uncontested evidence of the union’s witness was that in all other departments of the hospital, where a statutory holiday would otherwise be covered by a replacement worker, the full-time employee was entitled to work on the holiday for premium pay. The arbitrator found at para. 24 of her reasons that the parties agreed that this practice had been in place since at least 2019 (except for the two switchboard operators). It was therefore context known to the parties when the collective agreement was reached on February 16, 2024.
[13] The question of whether a set of circumstances constitutes part of the factual matrix is a question of fact: Spina v. Shoppers Drug Mart Inc., 2023 ONSC 1086, at para. 703. Here, it was reasonable for the arbitrator to conclude the practice elsewhere in the hospital at the time the collective agreement was entered into constituted surrounding circumstances relevant to the interpretation of the collective agreement. The arbitrator therefore was not required to apply the test for the admission of “past practice” evidence.
|
