Shaw Cablesystems G.P. v Telecommunications Workers Union, USW Local 1944

ARBITRATION

BETWEEN:

SHAW CABLESYSTEMS G.P.

- and -

TELECOMMUNICATIONS WORKERS UNION, USW LOCAL 1944

WITH RESPECT TO THE LAYOFF OF TECHNICAL FIELD REPRESENTATIVES

__________________________________________________________________

A W A R D

__________________________________________________________________

BEFORE A BOARD OF ARBITRATION COMPOSED OF:

Andrew C.L. Sims, Q.C. ............................................................... Chair

Gurleen S. Sahota ........................................................................ Nominee for TWU-USW

Gregory Heywood......................................................................... Nominee for Shaw

Cablesystems

REPRESENTATIVE OF THE SHAW CABLESYSTEMS

Howard Levitt................................................................................ Counsel

Helen Meaghen ............................................................................ Shaw H.R. Manager for Western

Canada

Ken Erlandson .............................................................................. Shaw

Rachel Paisley.............................................................................. H.R. Advisor

Bard Weller ................................................................................... Manager, Regional Operations

Cory Cooksley............................................................................... Supervisor Tech Ops Business

REPRESENTATIVE FOR TELECOMMUNICATIONS WORKERS UNION, USW LOCAL 1944

Richard L. Edgar........................................................................... Counsel

Heather Hoiness........................................................................... Counsel

Tamara Marshall........................................................................... Local Union Rep. USW

Jennifer Bucholtz .......................................................................... Local Union Rep. USW

Monte Worthington ....................................................................... TWU Local 60 Retired

Betty Carrasco.............................................................................. National Vice President

Lee Riggs...................................................................................... National President

Andy Wong ................................................................................... Unit 60 President

Donna Hokiro................................................................................ Vice-President USW Local 1944

HEARD in Vancouver, BC on February 13, 14, 15 2018, June 4 and July 16, 2018, September 4, 5, 6, 7,

2018, June 3, 5, 6, 2019, July 24, 25, 26, 2019 and February 19, 20, 21 and 27, 2020

AWARD ISSUED on January 11, 2022

Our file: 7926

AWARD

Shaw Cablesystems G.P. (Vancouver) laid off 54 employees; 25 on November 8, 2016 and a

further 29 on December 9^th. The rest of the TFR’s, 154 of them, were redeployed as Installers. All

were employed as Technical Field Representatives (“TFR’s”) and these layoffs, Shaw says, were

a part of a system wide decision to change the way it serviced customers, in part by eliminating

the TFR positions.

All the laid off employees were represented by the Telecommunications Workers Union, United

Steelworkers Local 1944, and were covered by one of two identical collective agreements, one

for Vancouver and the other for Surrey, running from March 24, 2015 to March 23, 2018. The

parties were in collective bargaining as these proceedings took place.

The Union relies on Article 6.06 which says technical employees (a term that includes TFR’s plus

others) must be laid off in order of union seniority. The Employer says that Article 6 does not

apply because of the separate process in Article 10, which provides for job opportunities or

severance pay when employees, like the 54 TFR’s here, become redundant due to a

reorganization, which it says is what took place here.

Shaw provides cable tv, internet and telephone, plus ancillary services, to residential and

commercial customers. It used TFR’s for residential installations but only installers for residential

service work. Commercial installation and service work was carried out by Shaw’s commercial

installers as well as by contract employees provided by third parties.

The Union first heard of these layoffs when it was asked to meet with Shaw’s Kathleen Harder,

Regional Operations Manager, at the Union office on November 8, 2016. They were told the

Employer was eliminating the TFR classification entirely. Ms. Marshall and Mr. Wong from the

Union were told that, immediately, Shaw was reorganizing its workforce into a “hybrid service”,

resulting in all the TFR’s being either redeployed or made redundant. Ms. Harder described this

as part of a national reorganization.

Each of the 54 employees received a letter. The November 8^thletters provided for immediate

layoffs and the others for a staged process as of December 9^th. This probably reflects the fact

that special provisions under the Canada Labour Code exist for layoffs of 50 or more persons. As

this sample letter shows, the laid off employees were presented with a couple of choices, with

time restrictions:

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As we evolve our business as an enhanced connectivity company, we continue to look at how work

is organized so that we can provide our customers with the best customer experience. As such, we

have identified the need to reorganize our operations and combine installation and service work

within the Installer classification, which currently has the jurisdiction to do both types of work.

In light of this new organization, and as per the provisions of Article 10.01 in the collective

agreement, your role of Technical Field Representative (TFR) will become redundant as of March

12, 2017. As a valued member of our team, we will be offering you the opportunity to be retrained

into a vacant position as a CATV – Installer as of March 13, 2017. Up to and including March 12^th,

2017, you are to continue to perform all the functions of your existing TFR role with no change to

your pay. If you take the opportunity to continue employment in the installer role you will receive:



An hourly rate equal to 90% of the Journeyman rate as per Article 17.02(c)

Payment on an hourly salary basis received on the current pay period as opposed to

receiving CNT codes for work performed in the previous pay period (sales commission

codes will still be payable). As part of this transition, on the March 24, 2017 pay date you

will receive both your final TFR CNT code earnings and your first payment as an Installer

(paid in two separate net deposits).



Vacation & sick rates will be calculated off of your hourly rate as an Installer in accordance

with the collective agreement

Statutory holiday pay will be paid at regular Installer rates, instead of being calculated off

of the previous 4 weeks earnings.



A company issued cell phone

A company fleet vehicle (which may or may not be part of shared fleet pool) to perform the

work functions of your role

To assist you in being successful in this role, between January 16, 2017 and March 12, 2017 you

will be provided with training on how to perform all aspects of this position. A training assessment

checklist of requirements of the installer role will be reviewed with you as part of your evaluation. In

the event that you are unable to assimilate the required training after the three (3) month period on

June 12, 2017 you will be provided with a severance package equal to eight (8) days severance

pay for each year of union seniority at that time.

Should you choose to decline the Installer role, you will be considered to have resigned from your

position and your employment with Shaw will end on March 12, 2017. In recognition of your

contributions as a Shaw employee, we will provide you (without precedence) a severance package

equivalent to what is provided under Article 10.01, calculated at eight (8) days per year for each

year of union seniority.

Please indicate your acceptance or declination of the Installer role by completing the attached

Schedule A and returning it to Bradley Weller, Operations Manager by November 22, 2016.

(emphasis added)

The persons laid off were by and large the more junior of the 220 TFR’s, but not the most junior

“technical employees”, as would be required under Article 6, and under which contractors would

also have to be terminated first.

The Employer says it eliminated the TFR position because its use, as currently structured, was

unduly burdensome on customers, uneconomical, and hurt its competitive position. Primarily,

TFR’s performed residential installations on a “fee per task” basis using CNT Codes which set a

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payment for each task performed. TFR’s did not do service work. That meant that, not

infrequently, an installer paid at an hourly rate would have to attend at the same premises to

complete a job. This inconvenienced customers and led to a loss of business in their highly

competitive market. Shaw maintains that the Union had turned down earlier proposals to

overcome this issue by allowing TFR’s to do related service work. From the Union’s side, its

TFR’s, by working long hours, were able to make more money under their fee per job system

than they could earn as installers, paid by the hour; this even though the installers generally

possessed a wider skill set.

The Union concedes the validity of Shaw’s business case for making this change, while not

conceding that it was a reorganization, or that Article 10 alone applied. This makes it

unnecessary to detail some of Shaw’s evidence about the economic and service advantages to

eliminating TFR’s.

Behind these changes are a set of jurisdictions and collective agreement restrictions that not only

define which job category can perform particular work, but also which work must be performed

only by Shaw’s unionized workforce and which work can be assigned to persons employed by

third party businesses under contract to Shaw, mostly, in this case, Pac-West.

The Grievance

On November 14, 2016 the Union filed the following grievance.

The Union hereby submits a grievance pursuant to Article 8 of the collective agreement regarding

the layoffs of employees about which notice was given on or about November 8, 2016.

Without limiting the scope of this grievance the Union alleges that the employer has contravened

Articles 2.08, 6.06 and any other relevant clause, statute or law.

The Union contends that the employer contravened these articles by laying off employees while

continuing to retain contractors to perform work.

Alternatively or in addition, the Union contends that the employer has contravened the collective

agreement by failing to lay off by reverse order of union seniority and by failing to recognize the

recall rights of such laid off employees.

The Union is seeking an order rescinding the layoffs of affected employees and directing that those

employees be reinstated and made whole, including but not limited to compensation for all lost

wages and benefits.

Alternatively or in addition, the Union seeks an order directing that all layoffs of affected bargaining

employees be carried out in accordance with the requirements of Article 6.06, including but not

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limited to the requirement that layoffs should occur in reverse order of union seniority, and that

affected employees should then have recourse to rights under Article 10.

Also alternatively or in addition, the Union seeks an order directing that the Employer cease and

desist from assigning collectors, auditors and/or other non-bargaining unit employees from

disconnecting cable and/or performing other work done by laid off employees.

The Union’s December 21, 2016 submission to arbitration sets out the Union’s request for relief:

The Union alleges that the employer has contravened Articles 2.08, 6.06 and any other relevant

clause, statute or law. The Union is seeking:

1. An order rescinding the layoffs and directing that those employees be reinstated and

made whole, including but not limited to compensation for all lost wages and benefits.

2. An order directing the Employer to cease and desist from assigning non-bargaining unit

employees and/or contractors from performing any work that could be performed by laid

off employees.

3. To the extent that an arbitrator may find that the fact of layoffs is not in violation of the

collective agreement, an order directing that all proper layoffs of bargaining unit

employees be carried out in accordance with the requirements of the collective

agreement, including but not limited to the requirement that layoffs must occur in reverse

order of union seniority, and that affected employees have recourse to recall rights under

Article 10.

4. Damages payable to the union.

5. Such other relief as the arbitrator may deem appropriate.

The Collective Agreement Provisions

Article 2.08 - Work Jurisdiction: Technical Employees - defines areas where the Union has

exclusive jurisdiction, and other areas where the Company may, or may continue, to have work

performed outside of the bargaining unit, usually by contractors like Pac West. It specifically

defines “technical employees”.

2.08 (a) Purpose

The purpose of this Article is to present in detail the areas and categories of work which are to be

performed exclusively by Technical Employees covered by this Agreement.

“Technical Employees” means Foremen, Journeyman Technicians, Installers, Apprentices and

Technical Field Representatives.

5

It is important for Article 6.06(a)(i), to recognize that “technical employee” is a broad, although

defined, term that includes TFR’s, but only as one of the several jobs within that definition. The

consequence is that, if any TFR’s, to whom the “reverse order of Union seniority” clause applies,

are affected, employees must be laid off based on their seniority rather than their classification or

skill sets. Simply put, on a reduction in the work force under Article 6, junior technical employees

with higher skill levels may have to be laid off before senior less skilled employees. Contractors

must go before either of them. This can mean that Shaw may run short of higher skilled

employees while retaining more lower skilled (senior) employees than it needs. The Union says

Shaw knew and accepted this.

Article 6.06 provides:

6.06 Layoffs and Recalls

(a) Order of Layoff

(i) When there is a reduction in the workforce, prior to laying off any technical employees,

the Company shall first terminate the services of contractors performing exclusive

bargaining unit work or performing work that is normally performed by the Company’s

technical employees on a regular and ongoing basis. Furthermore, the Company will not

contract out this work until all laid off employees have been given recall notice pursuant to

the provisions of Articles 6.02 and 6.06 (b).

(ii) Layoff of employees shall be by reverse order of union seniority.

(iii)The Company agrees to be bound by the applicable provisions of the Canada Labour

Code, Part III, as it applies to notice of layoff.

(b) Recalls

(i) Order of Recall

Recalls shall be conducted in reverse order of the process by which layoffs are effected.

…

Article 10, headed “Automation – Severance Pay” provides:

10.01 The Employer shall provide eight (8) days severance pay for each year of union seniority to

employees who become redundant due to automation, or the introduction of new methods,

equipment or organization. Nevertheless, the principle shall be that employees shall first be trained

for other positions then vacant within the bargaining unit, provided that the vacant position requires

similar or less job skills. Severance pay shall be utilized only when an employee fails to assimilate

the required training within a reasonable period of time, not to exceed three (3) months.

10.02 In the event that there is no such position vacant at the time of severance, the employee can

elect to defer claiming severance pay for a period not to exceed six (6) months. During the

6

deferment period, the person will be afforded an opportunity to be trained for other such suitable

positions, which become available.

10.03 At the end of the six (6) month deferment period, or at such other time within the deferment

period which the person selects, severance pay will be given as per Article 10.01. The Company is

then under no further obligation to hire, employ, or train the person.

10.04 At any time during the six (6) month deferment period, an employee may exercise an option

to be treated as a laid off employee under the provisions of Article 6.06. If an employee chooses to

exercise this option, the rights and benefits of this Article shall no longer apply. (emphasis added)

The parties differ as to whether the redundancy circumstances set out in Article 10.01 apply to

these facts rather than Article 6, or whether the two Articles are to be read together. That is: “is

this the introduction of a new organization” and can the employees in question do, or be trained to

do, the other positions? The parties differ on whether layoffs must see contract technical

employees go first, followed by Union technical employees in reverse order of seniority. That in

turn requires an interpretation of Article 10.04’s cross-reference to Article 6.06.

Principles of Collective Agreement Interpretation

The parties provided cases on collective agreement interpretation, both generally and on specific

points. The modern principles of interpretation were discussed in detail by Arbitrator Elliott. His

general statement reads:

40

The modern Canadian approach to interpreting agreements (including collective agreements)

and legislation, is encompassed by the modern principle of interpretation which, for collective

agreements, is:

In the interpretation of collective agreements, their words must be read in their entire context, in

their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object,

and the intention of the parties.

41

Using this principle, interpreters look not only to the intention of the parties, when intention is

fathomable, but also to the entire context of the collective agreement. This avoids creating a

fictional intention of the parties where none existed, but recognizes their intention if an intention can

be shown. The principle also looks into the entire context of the agreement to determine the

meaning to be given to words in dispute.

CEP Local 777 v. Imperial Oil Strathcona Refinery (2004) 130 L.A.C. (4^th) 239 (Elliott) at paras. 42-

47

Arbitrator Bird summarized the more significant rules of collective agreement interpretation in the

following way:

7

1. The object of interpretation is to discover the mutual intention of the parties.

2. The primary resource for an interpretation is the collective agreement.

3. Extrinsic evidence (evidence outside the official record of agreement, being the written collective

agreement itself) is only helpful when it reveals the mutual intention.

4. Extrinsic evidence may clarify but not contradict a collective agreement.

5. A very important promise is likely to be clearly and unequivocally expressed.

6. In construing two provisions a harmonious interpretation is preferred rather than one which

places them in conflict.

7. All clauses and words in a collective agreement should be given meaning, if possible.

8. Where an agreement uses different words one presumes that the parties intended different

meanings.

9. Ordinarily words in a collective agreement should be given their plain meaning.

10. Parties are presumed to know about relevant jurisprudence.

…

Not all rules of interpretation are rigidly binding. Common sense and special circumstances must

not be ignored.

Pacific Press v. G.C.I.U. Local 25-C [1995] 41 C.L.A.S. 488 (Bird)

We have also considered the comments of Arbitrator Kinzie in:

City of Trail and CUPE Local 2087 [2013] 237 L.A.C. (4^th) 298, at paras. 18-22

Two more well established rules of interpretation are that all words are presumed to have

meaning and that specific provisions customarily override the general. See: Brown and Beatty,

Canadian Labour Arbitration, (5^thEdition) 4:2100 and 4:2120.

Palmer and Snyder, Collective Agreement Arbitration in Canada, Fourth Edition, say at page 30:

It is a general rule of interpretation that a specific provision takes precedence over a general one.

Among other things, this principle means that the preamble cannot override a specific provision of

the agreement, and explains why a management rights clause cannot be used to undermine or

negate specific provisions of the agreement.

See also:

Centre de counselling de Sudbury and USW (2018) 293 L.A.C. (4^th) 99 (Bendel) at para. 21

There is a rule against interpretations yielding absurd or unworkable results. The Employer refers

to the following extracts:

8

The Union's interpretation would result in the impracticalities set out by the Employer. Only day shift

employees could exercise recall with plant seniority, in a situation of a lay-off of one shift or less, as

afternoon shift employees could not lay claim to a shift already passed. In addition, the prospect of

an employee's right crystallizing at any time in a shift; the consequent need to organize on short

notice and the likelihood of an employee to be by the phone at all times to exercise the right,

demonstrates the impracticalities with this interpretation. These realities lead me to conclude that

this could not have been the mutual intent of the parties in this situation. As noted by the Employer,

lay-offs of one shift or less may be unforeseeable due to factors beyond the Company's control,

such as lack of product. Hence the need for the flexibility created by the exercise of shift seniority

rather than plant seniority in that situation. To find otherwise would eliminate the effect of a

provision agreed to by the parties to deal with such situations.

42

I agree with the Employer that the uncertainties demonstrated by acceding to the Union's

interpretation render such an interpretation unreasonable and unlikely. While as noted in Belleville

Police Services Board v. Police Assn. (Belleville), supra, "anomalies" or "ill-considered results, are

not sufficient to cause alteration of the plain meaning of words, I have not found clear language. I

have found some doubt or ambiguity in the provision which is resolved by taking into account the

bargaining history and the impracticalities of the Union's interpretation. While I agree that an

employee's seniority should only be affected by clear language, the seniority rights are those that

are granted under the collective agreement.

Compwood Products Ltd. v. IWA Canada Local 1-417 (2001) 104 L.A.C. (4^th) 84 (Burke)

82

The ultimate issue in this case then, given that the discontinuance clause continues to exist

in the Collective Agreement, is the meaning to be attributed to the provision as the jurisprudence

requires that all words in a collective agreement must be given effect. As well, it is accepted that

Collective Agreements must be interpreted in a manner that does not produce impractical or

unintended results: Penticton and District Retirement Services, supra; Pacific Press Ltd., supra.

Also to be taken into account is the purpose of the clause which in this case was to ensure the

financial integrity of the Plan and also protect against unnecessary contributions being made.

West Fraser Mills and USW Locals 1-424 and 1-425 (2017) 286 L.A.C. (4^th) 382 (McPhillips)

84

In our view, on the wording of the agreement alone, the Faculty Association's interpretation is

the more probable. Does this lead to an absurd or administratively unfeasible result? The notion of

administrative necessity really amounts to much the same thing as the customary caution in

interpreting agreements that one should not construe an agreement in a way that is unworkable in

practice. One would presume parties would not intend such a result.

Lakeland College v. Lakeland College Faculty Association (2003) 124 L.A.C. (4^th) 28 (Sims)

We have also considered on this point:

Williams Machinery Ltd. and IUOE’s Local 115 [1985] B.C.L.R.B.D. 161

Ivaco Rolling Mills and USW Local 8794 (1997) 67 L.A.C. (4^th) 66 (Adell)

UE Local 524 v. Canadian General Electric Co. (1993) 4 L.A.C. 1541

9

There must be clear language in a collective agreement to prohibit contracting out.

… there was known to these parties at the time they negotiated the collective agreement the strong

probability that an arbitrator would not find any implicit limitation on management’s right to contract

out. It was one thing to imply such a limitation in the early years of this controversy when one could

not speak with any clear certainty about the expectations of the parties; then, one might impose

upon them the objective implications of the language of the agreement. It is quite another thing to

attribute intentions and undertakings to them today, when they are aware, as a practical matter, of

the need to specifically prohibit contracting out if they are to persuade an arbitrator of their intention

to do so.

U.S.W.A. v. Russelsteel Ltd. (1966) 17 L.A.C. 253 (Arthurs)

However, once such a restriction is negotiated, any exceptions to that prohibition must

themselves be expressed clearly.

39

Where an employer agrees to restrict its right to contract out, it will be accountable for the full

scope of limitation consistent with the language to which it has agreed. That is, while unions must

bargain to achieve limitations on contracting out, employers must ensure that where they have

agreed to limitations in clear language, any exceptions upon which the employer intends to rely

must be expressed in language that accurately defines the exception. Where the parties have

expressed a general restriction on contracting out in clear language, an employer cannot expect

that an arbitrator will invoke a strict approach to the interpretation of the language to favour any

exceptions relied on by the employer.

Alcan Smelters and Chemicals Ltd. v. C.A.S.A.W. Local 1 (1987) 28 L.A.C. (3d) 353 (Hope) 39

The onus of proof falls to an Employer to show that their contracting out falls within an exception

to a negotiated express “no contracting out” provision:

29 Before turning to a consideration of the four exceptions, it is appropriate to discuss the

evidentiary onus with respect to these matters. In my view, matters will arise in the analysis which

are clearly within the knowledge of the Employer and, on those issues, the evidentiary onus will

rest with the Employer to provide the necessary information on which to assess the

reasonableness of its decision to contract out the work. In Alcan Smelters (1987), Arbitrator Hope

indicated why that is the correct approach, at paras. 69-72:

69 In every case, the question of whether a particular contracting out is prohibited by the

provisions of the agreement will depend on the facts. In saying that, I repeat that there is

no onus on the union to establish that a particular contracting out was a breach of the

collective agreement beyond the establishment of a prima facie breach. That is, where the

union establishes that work has been contracted out that falls within the category

contemplated by the language of the provision, it will fall to the employer to bring itself

within one or the other of the exceptions.

70 The employer argued otherwise on the strength of the reasoning in the Petro Canada

case. But that case should not be read as contemplating the imposition of an onus on the

union to establish facts that are peculiarly within the knowledge of the employer. That is,

10

where the union establishes that a particular job has been contracted out, it does not bear

the evidentiary burden of establishing that there were men and equipment available to

perform the work, or the other positive aspects of the exceptions.

…

30 That approach has also been applied elsewhere: Pizza Pops, supra. In my view, that

is the proper analysis to be applied so, although the ultimate burden of proof rests with the

Union in this grievance, on those matters where the Employer has the required

information, the evidentiary onus will rest with the Company.

Viterra Inc. v. Grain Workers Union Local 333 (2013) 230 L.A.C. (4^th) 235

The Union urges us to find that Articles 6 and 10 involve seniority rights. As such, any diminution

of those seniority rights should only arise from clear language in the agreement.

Seniority is one of the most important and far-reaching benefits which the trade union movement

has been able to secure for its members by virtue of the collective bargaining process. An

employee’s seniority under the terms of a collective agreement gives rise to such important rights

as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights,

to name only a few. It follows, therefore, that an employee’s seniority should only be affected by

very clear language in the collective agreement concerned and that arbitrators should construe the

collective agreement with the utmost strictness wherever it is contended that an employee’s

seniority has been forfeited, truncated or abridged under the relevant sections of the collective

agreement.

Re U.E.W. Local 512 and Tung Sol of Canada Ltd. (1964) 15 L.A.C. 161 (Reville) at p. 162

See also:

Re: B.C. Railway Co. and Canadian Union of Transportation Employees Local 6 (1988) 2 L.A.C.

(4^th) 331 (Hope)

A consequence of the Tung Sol rule, in the Union’s submission, is that it is never appropriate to

infer that a provision abrogates an employee’s seniority rights.

Law on Extrinsic Evidence

These two provisions were the subject of collective bargaining over two rounds. Both parties

drew our attention to discussions during bargaining, and clauses that emerged from that

bargaining, to support their positions.

11

Brown and Beatty (Canadian Labour Arbitration) at 3:4400 set out the basic rules for the use of

extrinsic evidence 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. Extrinsic evidence can be admitted for the purpose of providing an

arbitrator with the bargaining context so as to help facilitate the interpretation of the collective

agreement. If the written agreement is ambiguous, 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.

The same text, at 3:4420 summarized the approach to negotiating history:

Both the history of a specific agreement through its sequence of prior agreements, and

documentary evidence, including memoranda of agreement or minutes of settlement forming part

of the negotiations of a particular collective agreement, may be introduced. Such documentary

evidence may include a related agreement which was used as a point of reference, an interest

arbitration award, as well as proposals made, discussions held, notes made, and agreements

reached during negotiations, although reservations have been expressed to admitting evidence as

to the give-and-take of negotiation. Of course, evidence of such negotiation history must not only

be relevant, but most importantly, to be relied upon it ought to be unequivocal. The context in

which such negotiations took place may also be relevant.

The Union reminds us of the following principles:

Hence it would seem preferable to place strict limitations on the use of past practice in our second

sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one

meaning, stemming from the words and structure of the agreement as seen in their labour relations

context; (2) conduct by one party which unambiguously is based on one meaning attributed to the

relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which

can be inferred from the continuance of the practice for a long period without objection; (4)

evidence that members of the union or management hierarchy who have some real responsibility

for the meaning of the agreement have acquiesced in the practice.

I.A.M. Local 1740 v. John Bertram and Sons Co. (1967) 18 L.A.C. 362 (Weiler)

Extrinsic evidence can be admitted to show an ambiguity as well as to resolve one; usually

characterized as the difference between a latent and patent ambiguity. However, for extrinsic

12

evidence of collective bargaining to be relevant it needs to point to a common intention, not just to

conflicting unilaterally held intentions. It refers to two cases that support this proposition:

16 It is trite to observe that extrinsic evidence may be relied on where it discloses the mutual intent

of the parties, while unilateral expectations do not assist the resolution of contractual differences.

As should be apparent from what has been recounted, the parties held quite different views of the

language now in issue during collective bargaining. But neither said anything to indicate the

divergent expectations and, indeed, Mr. Rush did little more than read out the text of the Union’s

counter-proposal. Nor do the post-negotiation communications by the parties (e.g., the joint press

release announcing ratification) offer relevant insight. Thus, the negotiation history does not add

anything to the plain wording of the parties’ bargain.

Sunshine Coast Regional District and Unifor Local 466 (2018) 138 C.L.A.S. 11 (Hall)

The second is a decision of the B.C. Labour Relations Board on the same topic.

26 First – and most important – the arbitrator is looking for the mutual agreement of both parties,

not the unilateral intentions of the one side. Without some reciprocal assent from the other side,

the fact that one party had an intention may indicate no more that what it wished to achieve and it is

question-begging to conclude from this evidence alone that its wish has been fulfilled. For that

reason, arbitrators should be very cautious in using the private documents or communications of

either side.

University of British Columbia and CUPE Local 116 [1977] 1 Can. L.R.B.R. 13 (Weiler)

We have also considered that Board’s additional comments in paragraphs 26 and 27.

This approach to the use of contextual evidence such as bargaining history is consistent with the

more recent approach ushered in by the Supreme Court of Canada’s decision in Sattva Capital

Corp. v. Creston Moly Corp. [2014] 2 S.C.R. 633. The Alberta Court of Appeal assessed the

impact of Sattva in AUPE and said:

iii. Conclusion on the impact of Sattva

[44] The following conclusions flow from the above analysis. First, labour arbitrators must consider

evidence of relevant surrounding circumstances when interpreting a collective agreement

regardless of whether the language is ambiguous. Second, it is never appropriate to consider the

subjective intention of the parties when interpreting a collective agreement (Sattva, at para 59; IFP

at para 87; Arbitration Award at para 35). Third, there may remain circumstances where it will be

necessary to establish an ambiguity in the contract language before being permitted to admit

evidence, for instance: some evidence of negotiations not otherwise admissible as surrounding

circumstances; past practice, or post contract conduct: IFP at para 87.

Alberta Union of Provincial Employees and Alberta Health Services [2020] ABCA 4 at para. 44

13

Where there is doubt in a layoff and recall situations the ambiguity is to be resolved by taking into

account the bargaining history and the impactabilities of the situation.

Compound Products Ltd. v. I.W.A. Canada Local 1-417 (2001) 104 L.A.C. (4^th) 84 (Burke)

In that case, the arbitrator concluded, as an exception to the nominal rule in Tung-Sol (supra)

42 I agree with the Employer that the uncertainties demonstrated by acceding to the Union's

interpretation render such an interpretation unreasonable and unlikely. While as noted in Belleville

Police Services Board v. Police Assn. (Belleville), supra, "anomalies" or "ill-considered results, are

not sufficient to cause alteration of the plain meaning of words, I have not found clear language. I

have found some doubt or ambiguity in the provision which is resolved by taking into account the

bargaining history and the impracticalities of the Union's interpretation. While I agree that an

employee's seniority should only be affected by clear language, the seniority rights are those that

are granted under the collective agreement. The Union must establish the right to which it seeks

entitlement under the terms of the collective agreement. In this case, it has not established that

right on the basis of the particular language set out in this provision.

Witnesses

The Union called the following witnesses:

Mr. Monte Worthington – a long time cable co. employee and one time TWU President

who was involved in the 1998-99 negotiations;

Ms. Tamara Marshall – the local Union representative responsible for Shaw in B.C.;

Mr. Sean Royds – a TFR who was active in the Union and laid off December 2016;

Mr. Mark Piciolo – a TFR who took training as a installer and was a shop steward for 3

years;

Mr. Luke Warrener – a TFR who worked for Shaw for about 9 years and later worked for

Pac-West;

Mr. Ansen Chan – a TFR for 5 years who was laid off on November 8, 2016 and later

worked for Pac-West;

Mr. Jason Little – An installer who had previously worked as a TFR;

The Employer called:

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Mr. Doug Sedgwick – at the time of these events Shaw’s National Director of Technical

Operations, now working elsewhere;

Ms. Helen Meaghen – formally Shaw’s Regional Manager and now Human Resources

Lead for Western Canada

Ms. Rachel Paisley – a human resource employee from Vancouver;

Mr. Cory Cooksley – a Shaw supervisory employee;

Mr. Dean Patterson – a 31 year managerial employee with Shaw now the National

Director of Network Operations;

Mr. Scott Atkinson – a former Shaw management employee who was part of the 1998-

1999 bargaining team;

Mr. Richard Morris – a retired Shaw management employee who was part of the 2003-

2004 bargaining team;

Mr. Robert Soulliere – a Shaw managerial employee supervising network information in

Vancouver, which included being Mr. Little’s direct supervisor;

Mr. Paul Marta – an installer who took on that role after being a TFR;

Mr. Matt Sciame – a Shaw employee who was a residential installer, then supervised

TFR’s and installers, then moved to commercial installation;

Mr. Glen Sonenberg – in 2018 the Director of National Standards and now Director of

Self Direct and Self Service Configurations;

Mr. Jerry Solem – between 2014 and 2019 an Operations Manager with Pac-West;

Mr. Brad Weller – until December 2019, Regional Operations Manager in Vancouver;

This hearing was prolonged and made more difficult by various disputes about the disclosure of,

or the untimely disclosure of, documents. Rather than address this now, those matters are

addressed at the end of these reasons.

Shaw’s Business

Shaw’s business has its roots in the cable television industry and the provision of television

access to residential customers through its coaxial cable network. This is still central to what it

does, but coaxial cable can now also provide fast digital internet connectivity. Over time, Shaw

has extended its services to provide television, internet and telephone services to its residential

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clients. It also offers similar, although often more complex, services for an increasing number of

business customers.

It is a highly competitive industry. In Western Canada, Shaw’s major competitor is TELUS,

whose roots are in the telephone industry. It has been able to use, and upgrade, its wire network

to provide a very similar suite of products, again to both residential and business clients. Shaw,

as well as TELUS, compete in markets beyond B.C. and Alberta, but those are the most

significant for this decision.

Both Shaw and TELUS are significantly unionized, but Shaw has a patchwork of unionized and

non-union geographical areas. Therefore, Shaw has areas where these two collective

agreements apply, areas where another Union (IBEW) holds bargaining rights, and areas where

there is no Union representation. Shaw and TELUS also each carry out a significant portion of

their installation, repair and network construction using contractors. They have arrangements with

third party companies which employ persons with similar or overlapping skills to those possessed

by Shaw or TELUS employees. Some of these third party contractors are unionized, some not.

A vital aspect of competitiveness in this industry relates to the rapid changes in technology, and

the uses to which that technology can be put. An example is Shaw’s offering of a growing suite of

“Smart” products; Smart Voice, Smart Wi-fi, Smart Security, Smart Surveillance and so on.

These “Smart suite” products vary in their degree of complexity, but their common feature is the

frequent need to integrate the internet connection provided by Shaw with the clients’ own

computer network. This required new skills for those involved in installation and service, skills

largely not possessed by TFR’s in November 2016.

Another aspect of this technological change is increased simplification of some products or

equipment to allow customers to use a “self-install” option. Many of the technical changes stem

from the ability of co-axial cable or wire connections (and more recently fibre optic cable) to carry

internet signals at increasing speed and over a wider band (capacity). This affects pricing,

technical options, and the ability to provide business services such as “point of sale” credit card

terminals. Again these services offered need to be integrated with the customers’ computer

networks.

Shaw maintained a division between residential and commercial products and services, although

they have similarities and a grey area between the two. This is partly because some businesses

now run from home offices. Similarly, many residential customers live in high rise apartments,

the cabling and other infrastructure for which is more like that of an office building than a single

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family dwelling. Many such offices and high-rise apartments or condominiums are prewired for

this type of service.

The rapid, and still ongoing, changes in technology blurred some of the testimony. What is most

significant for this decision is the tasks being undertaken, skills possessed, and personal

capacities to learn, as of November 2016. While we learnt much about new self-install products,

new modems and Smart products, this was all largely beyond the point for our decision; it tells us

little beyond what was sometimes more difficult then is easier now. It is essentially conceded that

TFR’s had virtually no training in or capacity to install Smart products, although some were being

introduced for commercial customers at the time of the layoff. We do accept that management, in

making its decision to reorganize (if that it be) included a forward look on the impact anticipated

new technology would have on its future business.

The Cable System and Work Jurisdiction

Article 2.08 1(b) provides a useful definition of Shaw’s Cable System.

“The Company’s Cable System” shall be understood

(i) The physical transmission system which provides services using signals to and from

the headends, primaries, hubs or other distribution locations which are owned or

controlled directly or indirectly by the Company, from the point where the signals are

received, through the distribution system to and including multiple outlet splitters and wall

plates within the customers premises. This also includes power supplies used to power

the cable system.

(ii) This includes but is not limited to all signal receiving or transmitting components, wave

guides, signal processing components, satellite receivers, two-way components in the

system, optical signal processing equipment and cables, head-end encoders, primary

(trunk) cable, secondary and drop cable, and active and passive devices on the signal

path.

None of the work involved in this grievance involves the “headend” where signals originate to be

transmitted via cable. Most of the work about which we heard evidence involved (a) that portion

of the system running from a box on a pole, or a similar device from an underground system, to

the home, apartment or business; and (b) that portion of the system from there to the client’s

network, wall outlets or devices.

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Article 2.08(1)(c) describes who, including contractors, managerial employees, and employees

outside the bargaining unit, can do what. This is relevant to the requirements of Article 6.06 in the

event of a reduction in work.

(c) Exclusive Work Jurisdiction – Cable System

(i) Technical Employees shall have exclusive jurisdiction for the purposes of technical

work to perform construction, installation, repair, service and maintenance work on the

Company’s Cable System.

(ii) In addition, Technical Employees shall be assigned to install in the customers’ homes

the following stand-alone devices: converters, Internet modems (excluding Network

Interface Cards), and pay TV devices, where such installations are coincident with

connection or service work.

(iii) Non-union persons will be allowed to work with tools only when working with

Journeymen and under the following circumstances:

1. Training and instruction.

2. Installation of equipment when working with a Journeyman technician.

3. Service and maintenance of equipment within the first year after installation of

this equipment within the certification, and only while working with a Journeyman.

Note: The installation referred to in (C) iii (3) shall be from the first instance of installation

of the equipment within the certification.

(iv) The company is free to continue with the following practices:

1. Equipment owned and controlled by parties other than Shaw that resides in

headends or hubsites will remain excluded from the provisions of article 2.08.

Starchoice and Big Pipe equipment is deemed to be third party equipment if it is

not used for delivery of services through the cable system to Shaw customers.

2. Use of facilities service companies to support systems such as HVAC, fire

suppression, security, UPS, standby generators, and janitorial services.

3. Perform remote functions that may include operating systems software,

firmware, or memory components.

(v) Nothing in the description of exclusive work jurisdiction in (C) (i) and (ii) shall give the

Technical Employees any jurisdiction over programming, network monitoring and control,

or any other work performed by employees who are not within the bargaining unit.

Again, this is helpful not just for its permissions and restrictions, but for its description of the

various types of equipment dealt with, recognizing however, that some of this changed as

technology advanced.

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What did TFR’s do?

Technical Field Representatives (TFR’s) were employed to install Shaw’s equipment into a

customer’s residential premises; customarily a house or apartment. The job changed over time

as Shaw moved from offering cable t.v. service alone into internet over cable and then telephone

over cable services, each requiring newer equipment.

TFR’s were not initially under the main collective agreements. Their pay was based on a fee per

service, calculated from of a long list of “CRT codes”. The money TFR’s were able to earn on this

piecework arrangement was higher than that earned by salaried employees doing service work at

an hourly rate. The evidence suggests TFR’s were earning $100,000 - $115,000 per year. Partly

this was due to flexibility in the length of time they chose to work. However, it is generally agreed

that they were paid well. Other employees earning less, it is said, were at times resentful of that

fact.

In the past, if a customer cancelled their service, TFR’s would disconnect the service and pick up

Shaw’s equipment. That requirement changed when automation (DNU2) allowed Shaw to add or

disconnect services from its central control centre. What TFR’s did not do is “service work”. That

is, if there was a fault in the services, or a need for wiring beyond the TFR’s role, Shaw would

send out a different category of employee, usually an installer, to fix the problem. This meant, for

example, if the TFR was at a customer’s premise installing a new service and the customer was

experiencing difficulties with some other aspect of their service, a visit by a second employee

might well be needed. Similarly, if the TFR encountered a problem with the signal on the line or a

similar matter, again a second visit might be necessary. The evidence suggests the degree to

which TFR’s could or would resolve such problems varied between TFR’s.

Despite several efforts, in bargaining and in practice, the Employer had sought, but failed, to get

TFR’s involved in commercial work or to undertake service work.

In the fall of 2012 the Employer offered TFR’s a chance to do commercial work using CRT Codes

as the method of payment. It included a training program; one or two days in the classroom plus

2 or 3 days of ride alongs. Applicants were required to commit to a 3 month period. The work

involved was;



More the small business type versus the larger business. We do not plan to issue 6

or 8 post installs to TFR’s at this time.

About 15 positions were open to applicants.

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Mr. Jason Little and Mr. Luke Warrener took up this initiative along with a few others, but overall

the overture was not a success.

In April 2013 the Employer sought agreement to place TFR’s into new temporary (6 month)

positions in the service department. This met with no success.

The very significant differential between the TFR’s income and the income available through

hourly work explains why TFR’s individually and the Union in general were reluctant to change

the status quo on TFR remuneration. Over time they expressed enthusiasm for finding more work

from TFR’s to do, but within their scope, or refining the remuneration attached to CRT codes. Mr.

Little particularly was involved in those ongoing negotiations.

In 2015 bargaining, the Employer proposed, but was unsuccessful in obtaining, a new

classification of Commercial Technicians. The barrier was the Employer’s wish to protect such

employees from layoff and recall, which the Union viewed as them creating an “elite installer”

position. The Union wanted the training, but not at the price of “super seniority”.

The Company’s failure to expand the TFR’s role prior to November 2016 was not for want of

trying. By 2016 however, it had decided on a broader change.

Shaw’s Decision to Eliminate the TFR Category

Considerable evidence addressed the circumstances that led to the elimination of the TFR

category. The Union does not dispute Shaw’s business case for that decision. What is

significant, for this decision, is whether the change undertaken in November 2016 which resulted

in the elimination of 220 TFR jobs and transfer of many TFR’s to installer positions, and the layoff

of the balance, fell within the definitional scope of Article 10. That is, did the 220, or the 54

… become redundant due to automation, or the introduction of new methods, equipment or

organization.

Mr. Doug Sedgwick was Shaw’s Director of National Technical Operations until the end of April

2017. He testified as to his role leading up to the changes in November 2018. Beyond the

business case, his evidence helped us assess whether this was a redundancy situation due to a

new organization, and the practical impact of interpreting Articles 10 and 6 as each party

suggests.

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He said Shaw had been looking at restructuring for quite a while because customer needs were

changing. He was one of four original members of a steering committee charged with enhancing

the customer experience, becoming more efficient, and achieving cost savings. The steering

committee grew to 12 by the time of implementation in November 2018. The Committee’s work

was kept confidential with participants having to sign a confidentiality agreement providing for

termination in the event of a breach. Mr. Sedgwick’s agreement, signed April 11, 2016

corroborates his description of the timing, scope and sensitivity of the project:

I, Doug Sedgwick, acknowledge and agree that, as result of my position with Shaw

Communications Inc. (“Shaw”), I am being made privy to information concerning Shaw’s plans to

restructure its operations including, but not limited to, organizational structures, employee

dismissals, changes in employees’ positions, information about possible changes to employees’

positions and possible terminations, actual and contemplated changes in employees’ remuneration,

financial information and the very fact of this reorganization. I agree that I will not, directly or

indirectly, expressly or impliedly, disclose such information to anyone and will keep it entirely

confidential for all purposes except where required by law. I acknowledge and agree that my

maintaining the absolute confidentiality of this information is of fundamental importance to Shaw

and therefore recognize that my doing so is a condition of my continuing employment with Shaw.

I acknowledge and agree that the obligations under this section are to remain in effect in perpetuity,

regardless of any termination of my employment with Shaw or otherwise.

I also acknowledge that: …

(c) a breach or threatened breach by me of these terms and conditions will result in the

immediate termination of my employment for just cause;

This confidentiality, and the need to protect the company’s market position and competitiveness

during any anticipated or actual change, meant that Shaw took no steps to consult with or advise

the Union of any of this until November. Mr. Sedgwick described the changes adopted as very

significant for Shaw as a business, resulting in changes within management, impacting 100’s of

employees and, being nationwide, affecting unionized and non-unionized employees, although

their jurisdiction and limitations were different. Even senior leaders within Shaw were not

apprised of the changes until the very end of the process.

Mr. Sedgwick testified that Shaw used Customer Satisfaction Surveys to get up to the moment

feedback on client reaction to their services. This was particularly important as they worked to

attract or retain customers who had the option, within the market place, of using Shaw or TELUS.

A major concern expressed by residential customers was having to take time off work to be at

home not just once, but often to have to take a second day off so that an installer could come in

and do the “service” work the TFR would not or could not do. This also meant that sometimes

customers found themselves unable to access the internet or one of the other dependent services

for a few days. Another, but lesser, complaint was that technicians would not attend a predictable

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time, extending the customers’ time away from work. Aggregate data from customer surveys

were produced to support these concerns.

Another challenge for technician scheduling was that they experienced increased demand (peak

periods) at quarter end and year end. TELUS campaigns directed at Shaw’s customers

challenged Shaw’s capacities at times. Unlike Shaw, TELUS was not subject to contract

restrictions on the use of their technical crews and could resolve service problems with a single

visit.

Mr. Sedgwick says there were also scheduling inefficiencies with apartment customers where

each TFR might need to contact the apartment manager separately to get an access key for the

cable drop location. Installers and service calls, to different units, were overlapping in an

inefficient way.

The changes were also driven by potential economic savings. It cost money to send two

employees in two vehicles to the same location. The potential efficiencies were assessed, and

explained to us, using the results of hypothetical “ghost runs” which compared the costs of the

same work being done by TFR’s and Installers and by CRTV-Installers trained to do all the work

involved in residential calls.

In the three months before the proposed roll-out Mr. Sedgwick’s group began preparing

presentations and F.A.Q. packages for each of the unionized and non-union groups across

Canada. It described the new role from the combined installer’s category plus new supervisory

positions. The package described the “What, Why, How” of these changes, as follows:

What?



Shaw is introducing a new national “In-Home Technician” model to more efficiently and

effectively serve the needs of our customers by blending Installation and Service into one

dual role.

Why?



At the core of this change is our commitment to our customers. As their connectivity

needs have evolved, so too have our products and operations. The technician roles and

structure we created years ago to support our needs as a cable company no longer

support the needs of today’s connected customer.



Today’s customers are looking for seamless connectivity and a seamless experience with

our company. This new In-Home Technician role builds on the outstanding service Shaw

has been known for over the past 45 years, and provides our customers with a new level

of technician expertise to meet all their needs – whether installation of new products or the

service of current ones.

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How?



To support this new model, we will be restructuring our technician workforce over the next

90 days. These structural changes will ensure we are operating efficiently and providing

our new In-Home Technician team with a balanced workload.

o

194 operational roles will be impacted (which is approximately 11% of our

Technical Operations workforce). 75 new support positions will be posted

internally within our operations team to support the change.

o

Wherever possible, we will be moving to a unit-based model which compensates

our In-Home Techs on a per-call basis. This compensation model increases

efficiency and aligns with our pay for performance model while providing

employees with the same or greater earning potential.

o

In Vancouver, we will be moving to a hourly technician model to respect the

requirements defined by the collective agreements.



Every effort is being made to support our employees throughout this change:

o

For those who will be leaving Shaw, we will be providing them with a severance

package or, if union, in alignment with their collective agreement.

For those who are changing roles to a new model of compensation, they are

being offered time to review and accept the role, or take a severance package if

they feel that the new requirements of the role are not right for them.

o

For all In-Home Technician roles, employees will be provided comprehensive

training, transition time to increase their skills, relocation support (up to $7500) if

they are the selected candidate for an open role in a different area, and, where

needed, we will lend employees who are transferring from a salary position to a

unit-based role the hand tools they need to do the job.

The changes implemented in Vancouver were described, and explained, in the following extracts:

Changes by Role

Vancouver

CATV-Installer



CATV Installers become In-Home Technicians performing both service and installation

work, and will continue to be compensated on a hourly model as outlined in the collective

agreement.

Technical Field Representatives (TFR)



TFRs will be offered a role as an In-Home Technician (equivalent to CATV Installers)

performing both service and installation work, transitioning to an hourly compensation

model. These transitions will occur over the next four months.

Foreman

23



The Foreman role will be modified to match the equivalent duties of In-Home Specialists.

This role will evolve to match the Operational Excellence model.

Supervisors



We will be posting additional Supervisor roles to help provide more direct leadership to our

In-Home Technicians. Supervisors will take an active role in coaching and supporting the

overall performance of their teams.

…

Why are there differences in Vancouver?

Wherever possible, we will be moving to a unit-based model which compensates our In-Home

Techs on a per-call basis. This compensation model increases efficiency and aligns with our pay

for performance model while providing employees with the same or greater earning potential.

In Vancouver, we will be moving to a salaried technician model to respect the requirements defined

by the collective agreements.

These documents were used to roll-out the changes to employees and managers across the

country following the November 8^thannouncement.

Commercial Work

Shaw had and was seeking to increase its client base of commercial customers. Many were in

premises pre-wired for cable. As the services Shaw could offer grew, it actively sought to keep

and expand its commercial work, particularly by providing modern telephone equipment and

internet access. Despite some overlap between the services offered and the skill sets needed to

install and service the equipment, the evidence establishes that this commercial work was

materially different from residential work, particularly that non-service work the TFR’s had been

engaged in. We heard a great deal of evidence about such work, made more complex because

of the developing nature of the technologies themselves.

Much of the evidence on the nature of commercial work and the skills needed to perform that

work came from Mr. Jason Little, for the Union, and Mr. Doug Sedgwick, Mr. Cory Cooksley and

Mr. Robert Soulliere for the Employer. Their evidence differed in many material respects; Mr.

Sedgwick particularly being of the view that Mr. Little downplayed the skills needed to perform

commercial work, and exaggerated the skills already possessed by the TFR’s. Mr. Little’s

evidence was that much of the challenges faced by commercial installers were easily met based

on a TFR’s residential experience, and that, while several of the tools like fishing devices, meters,

24

and so on were different, they were sufficiently similar so that a TFR could easily pick up the

differences and adapt.

We do not propose to address each conflict in testimony point by point, just touch on some of the

more significant differences. We note at the outset that Mr. Little was not an ordinary TFR. He

had previously served six months in a commercial role, and he had two years earlier transitioned

from being a TFR to the installer role. He thus had greater familiarity with the non-TFR work, but

perhaps also an exaggerated perception of the skills possessed by the incumbent TFR’s.

Nonetheless, it is significant to note that about 150 TFR’s in fact successfully made the transition

to their new job duties, although the evidence as to how long their training took varied both

generally and by person. Also, the transition mostly involved residential service and install work,

or work as part of a two person team.

Mr. Little testified that Smart Wi-fi was available in November 2016. He said installation was no

different than the work TFR’s did; connecting the modem to the co-axial cable. From there, cable

runs to the access point and a few settings are set and the levels checked. The customer is then

given a brief tutorial. The modem was traditionally the access point, but Smart Wi-fi used a plug

and play extender. TFR’s customarily did wiring and, in his view, the use of CAT 6 cable is

essentially the same except for the fitting on the end of the wire.

Other witnesses emphasized the additional skills needed to integrate with the customer’s own

computer systems and the differences in the various challenges faced when wiring in commercial

premises. Mr. Little agreed that TFR’s never did Smart Installations. He agrees that, following the

November changes, all the remaining TFR’s in their new roles had to be trained on the emerging

Smart products as well as on the other work of installers.

Mr. Little testified that it was unnecessary for those doing installations in non-residential premises

to be aware of the applicable Building Code and Fire Code requirements when running services

between floors, different businesses and so on. Several Company witnesses described, quite

clearly, why such knowledge was essential, involving different types of wire and methods of

protecting against the spread of fire.

Mr. Little was asked about having to connect the Shaw equipment with a businesses’ own

network. His view was that the installer’s task was limited to ensuring the internet connectivity

was available through the modem. He denied that it was a part of the installer’s role to contact

the customer’s IT professional. That, he said, was the customer’s responsibility. He said “he is

not a network guy” and that he just offers recommendations based on his experience. He was

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unable to estimate the percentage of installs that involved Smart products but agreed “it is a huge

source of revenue for the company. Once installed, servicing such Smart products is part of the

installer’s job, and that integrating the products with the customer’s hardware can be quite

complex. However, when pressed Mr. Little said servicing Smart products is different, but not

more complex, and not difficult to troubleshoot.

The Employer’s evidence was that Mr. Little’s view of Shaw’s responsibility was antithetical to its

customer service objectives; that of ensuring the customer is left with a system that works, and

that they expect a collaborative relationship with the customer’s own IT professionals.

Mr. Little recognized that commercial installers might require the use of special equipment like

bucket trucks, scissor lifts, or vacuum systems to pull cable through conduit, things that were not

used by TFR’s. He recognized that business telephone installs often involved 4 and 8 port

systems not available in residential installs. He agreed they may require an external battery, but

that part of the job did not require much training.

Our assessment of this evidence overall is that Mr. Little’s description, or assumptions, lacked

precision and overlooked some important skills which could be learned, but were not at the time

possessed by TFR’s.

In summary, we note three primary areas of difference. Firstly, business premises far more

frequently need complex cabling, bringing the service from a drop point in the building into the

customer’s premises to modems, routers and similar equipment and then to the various points

where the customer has telephones, tv screens, point of sale equipment, computers, printers and

so on. This requires installers to plan how to run cable through walls or ceilings, sometimes up

through different floors. This may require fishing the cable through pre-existing conduit which

takes knowledge of the tools, likely barriers and the fire and building codes to be met. Within the

customer’s premises, experience is often necessary to determine how to wire ethernet cable or

HDMT cable in unobtrusive and efficient ways.

Secondly, in small offices, office telephone systems may only require two-port service whereas

for larger offices the service is delivered using 4 or 8 port options. Wiring and configuring these

systems requires considerable extra skill except perhaps for TFR’s who came to Shaw with a

telephone background.

Thirdly, and perhaps most significantly, commercial installs almost always have to join up with the

businesses’ own computer systems and network. This required Shaw’s installers to remain

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sensitive to how Shaw’s installation or equipment may interrupt a variety of settings, such as

internal IP addresses, through which the client’s computers, phones and peripherals

communicate. This includes knowledge of such issues in the context of wi-fi networks as well as

cabled systems. Many businesses have their own IT consultants or employees, but commercial

customers have limited patience for disruption in any of these services due to, or perceived to be

due to, Shaw’s activities.

While we are persuaded that commercial work is substantially different than the residential work

done by TFR’s, this was not without exception. Some had acquired some of these skills in the

past, through Shaw or with a former employer. One TFR had a bucket truck he knew how to use.

We have not ignored this overlap but for the most part these were clearly exceptions to the norm.

Commercial customers pay well. Shaw gives priority to that client base in recognition of the

commercial costs of down time. As with other providers, Shaw offers contractual service and

response guarantees for customers willing to pay premium prices. For all these reasons, Shaw

was, throughout, unwilling to have insufficiently trained installers attend at commercial premises,

and was and remains skeptical of claims that residential TFR experience is sufficient without very

significant training for its commercial marketplace.

After the layoff

The Board heard much evidence over the differences in skills, training, equipment and duties as

TFR’s became Installers. An important point is that the residential installation work, after the

change, still had to be done, albeit with the Installer being expected to do all that was necessary

to complete the task. The result was that for some, and particularly initially, there was less

change in their daily duties than might be expected. The experience of the new installer’s scope

of work was gradual not sudden. Training too was gradual as Shaw was short on personnel

equipped to provide the necessary training. In addition, much of the training consisted of ride-

alongs with trained people and their being assigned as the second person on a two-person crew.

Various estimates predicted how long it would take for TFR’s to become proficient in service work

and then commercial work. These estimates, from Company witnesses, ran from 6 to 12 months.

They contrasted sharply with Mr. Little’s much shorter estimates. The longer estimates are

supported by evidence that some former TFR’s, who were offered and accepted installer work,

were having difficulty picking up the necessary skills within the allotted six months before they

had to decide whether to take severance under Article 10. They were told that if they needed

27

extra time to learn the job duties they should ask and it would be provided. Ms. Marshall wrote to

them to remind them of that on May 26, 2017 saying, in part:

Now that some time has passed and you are getting up to speed on your new roles, both TFR to

Installer and previous Installers, have new duties. I felt it was important to communicate with you

about training. I have heard from many that you felt the training provided was not adequate. Some

have expressed concerns that you may be subjected to being told you are not performing well.

The Company has stated that if anyone feels they have not had adequate training, they are to ask

for additional training. If you are unsure of your required tasks, or need either more training, or ride

alongs please email your foreman and supervisor. Please state where you think the shortfalls are

and what you need more training on; whether it be new equipment, procedures or diagnostics.

Ms. Marshall says some of the TFR’s were feeling they had inadequate training to that point, and

that she shared that with Ms. Meaghen, but without specifics.

Mr. Brad Weller testified to communications he had with the Union about deficiencies in training.

Several company witnesses explained that at the time they found themselves without sufficient

available persons to deliver some of the necessary training, particularly for commercial work. Mr.

Piciolo spoke of people, including himself, needing to learn some features of the job, even after a

year.

As to the 54 laid off TFR’s, Mr. Meaghen sent Ms. Marshall a letter on April 18, 2017 reminding

her that those laid off had an election to make and saying that the deadline would be kept.

On May 8, 2017 it will be 6 months since we announced to our employees that we were re-

organizing our operations by combining installation and service work within the CATV Installer

classification and making the TFR role redundant due to automation. As you are aware and per

Article 10.02/10.03, TFR’s whose employment was made redundant with this decision, had a

choice to defer their severance for a period not to exceed 6 months, during which time they could

be afforded opportunities to be trained for other such suitable positions which became available in

that window.

[The letter then discussed the mechanism of payment for those taking a severance payment, and

continued]

We would like to reiterate our position that as of May 9, 2017, the 6-month window for suitable

employment opportunities is closed, regardless of whether the employee has not provided payment

allocation directions. The company is then under no further obligation to hire, employ or train any

persons who were waiting in this 6-month deferral window.

Thus, six months after their layoff, the 54 employees faced the option of taking severance under

Article 10 or being treated as laid off under Article 6. Some took the severance on a “without

28

prejudice” basis. Four employees were rehired on a posting. A couple were recalled after the 6

months. At least 3 or 4 applied on postings but were unsuccessful.

The Union presented evidence to show that, after the TFR workforce was reduced, the Employer

continued to employ contractors to perform exclusive bargaining unit work or perform work that

was normally performed by the Company’s technical employees on a regular and ongoing basis.

There are two main sources of evidence on this. The first involves six example jobs isolated by

Mr. Sean Royds in the week following the layoff, and the Company’s evidence about those same

properties and jobs. The second is a much broader sample of jobs, initially chosen from the

Company’s first and limited disclosure. It consisted of 308 jobs first analyzed by Mr. Little for the

Union, then reanalyzed initially and then a second time by Mr. Cooksley for the Employer.

Mr. Royds’ Six Examples

Mr. Royds, a TFR active in the Union, believed that while TFR’s were being laid off and even

before, contractors were doing residential installation and service calls; the TFR’s work. Using

the Shaw computer system in the key room, he had been able to call up 6 records, and their

locations using Google Maps, in order to show examples of when this was happening. The

records he called up included the location, a work order number, and the name of the person

doing the installation. They were all taken on November 15 or 16, 2016. He did not generate the

service calls, work orders, or spin notes for these examples, but the Employer produced some of

them later.

It was Mr. Royds’ view that the six examples showed contractors doing residential building work

as well as commercial work and service calls. Mr. Little conceded that, for most of these jobs,

there were no applicable CRT codes. Mr. Cory Cooksley visited all but one of these properties,

and examined the various records of the work as well. The six addresses, the evidence

concerning them, and the work involved, follow.

i. 55 Water Street, #405

1840 – 2016-11-15 – 64/2000 Van;

W029425371 – Clanhofer 55 Water

St. 405 Vancouver, BC V6B 1A1

Mr. Royds says 405 – 55 Water Street is a residential building but with spaces for home offices.

A work order was assigned to Mr. Clanhofer, a contractor, for the work that was done in the first

29

week after the layoff. Mr. Little says this was a simple internet install just like TFR’s did. Mr.

Cooksley says this was a commercial line into a business workspace to install a modem for

internet service. Mr. Cooksley disagreed with Mr. Royds’ having said home offices are the same

as residential installs because they may need a different modem, have legacy equipment and

may have smart products. Mr. Jason Little could not tell whether the fibre line was wired to the

suite. There was apparently a need to keep wireless printers up and running. Mr. Cooksley was

unable to get to this location, but says it involved swapping a modem and an upgrade to business

150 service.

ii. 233 Robson Street, #3605

1840 – 2016-11-15 – 6421000 Van;

W029415104 – Clanhofer 233 Robson St.

3605 Vancouver, BC V6B 0E8

Mr. Royds says this was an apartment building. Mr. Little identified this as a business 30 internet

install with a two line telephone terminal, a modem and a digital box for a television (a “triple

play”), no different than TFR’s do regularly. Mr. Cooksley was unable to visit the site personally.

He says no work was done on the visit in question and he was unable to give a definitive answer

on what was done, although he believed it to be a commercial product.

iii. 3340 Kingsway #200

2800 – 2016-11-15 – 11052000 Van;

SCO5212286 – J. Kootstra, 3340

Kingsway 200, Vancouver, B.C. V5R 5L1

Mr. Kootstra also worked for a contractor. Mr. Royds says this was for a service call. Mr. Little

says this call was to install Smart Wi-Fi. He says it is possible the job required fishing wire or

conduit work, and perhaps a second person. It may have required electrical room access.

Records show this was a commercial insurance office and that the call in November 2016 was to

install Smart Wi-Fi plus provide access to ICBC and point of sale terminals.

iv. 4014 Myrtle Street, Burnaby

2800 – 2016-11-15 – 11145000 Van;

SCO5210444 – J. Kootstra, 4014

Myrtle St., Burnaby, B.C. V5C 4G2

Mr. Royds says this was a service call. Mr. Little described this as an upgrade to a Smart Wi-Fi

requiring cable to be run through a warehouse and to a downstairs office. He was unable to say,

30

in cross examination, or from the spin notes, whether the job required a scissor lift or whether

there were 3 rather than 2 access points. The Employer produced a record showing it was a

Graphic Supplies business. The job required two employees with a 40’ ladder to run cable

through a warehouse towards a downstairs office for a Smart Wi-Fi.

v. 128 Pender Street

1840 – 2016-11-15 – 4884000 Van;

WO29425672 – Clanhofer, 128

Pender Street W, 301, Vancouver, B.C. V6B 1R8

Mr. Little says this was to install a business 130 and may have required a second person plus

access to the electrical room. It also involved Ethernet over Docsys. Mr. Little says this was a

heritage building. He was unable to draw much information on the job from the spin notes. It

might have required a second person as well as an IT person. Records show that this was a

service call from a customer who was having wi-fi issues, with his devices dropping off the

connection. It proved to be a large job with custom wiring.

vii. 1055 Richmond

1840 – 2016-11-15 – 9216000 Van;

WO29415019 – Clanhofer, 4000

No. 3 Rd., 1055 Richmond, B.C. V6X 0J8

Mr. Royds’ said this appeared to be a commercial building. Mr. Cooksley identified it as service

work in a mall.

Our conclusion is that in Mr. Royds’ samples, all involved a contractor doing the work, but none of

them involved work customarily done by a TFR. All appear to have been commercial customers.

The 308 Work Orders

The Union’s concerns started with its member’s observation that certain Pac-West contractors in

the field were doing what was thought to be the work done by, or that could be done by, TFR’s or

by “Technical Employees” at the same time TFR’s were being laid off.

Shaw’s record of particular jobs is a mixture of computer entries and written documents, often

scanned and linked to that job. They begin with a client calling into Shaw and seeking work of

some kind. Work Orders are then prepared and dispatch arranged. The Customer Services

Representative with whom the first contact is normally made will lack the technical expertise to

31

know what equipment will be needed for the job; what the premises look like and so on. Details

are attached to the record using what are called spin notes that provide some further details as

the parameters of the job become known. However, the full details of the job once completed

require an examination of yet further linked documents such as invoices, records of past work

and so on. There were disputes, described below, about the production of the sought after and

necessary records.

The Union sought disclosure, and received a large amount of data. From that Mr. Little selected

and examined 308 work orders. He gave evidence that, based on the records produced from

these 308 jobs, he was of the view that 220 of those jobs involved work traditionally done by

TFR’s that appeared to have been done by contractors. He included in this all modem swaps,

digital box upgrades, digital phone installs, and a variety of other matters he viewed as included

in the CRT codes. He included Smart product installs.

Mr. Cooksley produced a detailed spreadsheet based on these 308 records which initially

subdivided the jobs into the following categories:

Smart Wi-Fi

55

1

Smart Security

Install – Phone/Internet/TV or drop?

Internet Swap

186

44

2

Smart Voice

Service Call

2

Calls - TFR could complete

18

Before the Union cross-examined him on this document, it needed time to assess his analysis.

When Mr. Cooksley returned to the stand after a significant break, he advised that he had been

checking and refining this spreadsheet, and the categories into which he had allocated the

various work orders. He conceded the earlier chart had contained errors and was based on an

inadequate look at all the available data. He still testified that only a few jobs involved work a

TFR could do.

Mr. Cooksley says he changed his mind about some of his spreadsheet coding because he had

prepared the initial spreadsheet fairly quickly. When he had time and undertook deeper analysis

his conclusions changed. In particular, he accessed records about the jobs, the premises and the

equipment including documents the Board had previously been told were unavailable or deleted

after 12 months.

32

Counsel for the Employer says that it was Ms. Meaghen, at Counsel’s direction, who asked Mr.

Cooksley to redo the spreadsheet.

Despite the disputes about the later production of and admissibility of Mr. Cooksley’s analysis of

the 308 calls, the Union in its argument relied on that analysis as evidence. It argues:

1. Regardless of the reason, when there is any reduction in the workforce contractors must be

terminated unless they are performing work that is not performed by “the company’s technical

employees on a regular and ongoing basis”.

…

3. The relevant evidence must therefore focus on the work performed by “technical employees”,

not on work performed (or that could be performed) by TFR’s.

…

5. It is not a question of what TFR’s can do (though, factually, our suggestion that, in addition to

commercial installations contractors were doing residential installs and service work has proved to

be true – see X22). It is the work that technical employees perform on a regular and ongoing basis

that is relevant to this inquiry.

6. Put succinctly, all 308 calls on X22 (no matter how badly the calls were analysed) is work that

technical employees normally perform on a regular and ongoing basis. Thus, the Employer has not

only failed to prove that the work contractors were doing was not performed by technical

employees on a regular and ongoing basis, their evidence demonstrates beyond all doubt that the

work the contractors were doing was performed by technical employees on a regular and ongoing

basis.

Given this use of the data, and the similarity of the significant points from spreadsheet 1 and

spreadsheet 2, it is unnecessary to document the evidence provided on the conclusions drawn on

particular contracts. The impact, in terms of applying the facts to our interpretation of the

agreement, remains the same either way.

Extrinsic Evidence

The parties rely upon extrinsic evidence to make the following points.



The Employer argues that it has used Article 10, on two occasions in the past, without

objection or grievance. In its view, these were reorganizations resulting in layoffs where

Article 6 was not used.

33



The Union had sought to merge Article 6 and 10. The Employer resisted this proposal

and in response, the Employer clearly outlined its position on the separate roles of

Articles 6 and 10 with no Union disagreement.



The 1998-1999 negotiations over Article 10.04 support the Employer’s case, or the

Union’s case, or neither.

The Employer knew the consequences of bringing TFR’s into the main contract,

eliminating the skill and ability clause and having to layoff technical employees in reverse

order of seniority.

Prior Reliance on Article 10

Long ago, Mr. Worthington and fellow employee Fred Summers, both dispatchers in Surrey, were

laid off. Mr. Worthington says he was called in by Ms. Gibson and told dispatch was going to be

done from the central tower, not in Surrey. He was told he could apply for one of the tower jobs.

He told the Company (then Rogers) that he would be invoking Article 10 and Ms. Gibson told him

Article 10 did not apply. Mr. Worthington says his co-worker hired a lawyer who wrote a letter

contesting the Company’s position. The matter was inferentially resolved once installer

opportunities opened up in Surrey. He says the Company at the time never said Article 6 would

not apply. Article 10.04 did not exist at the time. Mr. Scott Atkinson and Mr. Dean Patterson

testified that Article 10 was used when the Langley warehouse was shut down.

There was some reference to this in the 1998-1999 bargaining.

CG

In 1992 – dispute, layoff Surrey – 10.01. Change in organization. Made special

arrangements with disputers [sic: dispatchers]. Could not take pay and wait for job in main

body of agreement.

MW

We were told severance package. We elected to proceed under article 10. Company said

didn’t apply. Letter from lawyer to get parties to agree. 10 applied. Meeting company and

union. Fred and I informed – outside jobs start in September. We had to apply for jobs.

Resume, internal test. Then inform successful applicant. Don’t equate that with normal

layoff.

And then on July 21, 1998

Last time you raised this issue, Monty said letter came from lawyer. It did come, but had

no face or effect.

NM

CG

MW

NM

Can’t speak for legal counsel or letter went to IBEW as well.

That is not what happened here. It was discussion. The parties mutually agreed.

I did not want to indicate the letter caused the resolutions. One in a chain of events.

Outcome was proper.

34

CG

It was application for circumstances. It was not precedent setting. Felt people, employer

would be benefiting to company in other role. Pleased with outcome. Had much to do

with individual. Would not have been proper outcome with other individual.

The Union says this was not an analogous situation at all because:

(a) Dispatchers are not and were not technical employees;

(b) The agreement at the time used different language with a “skill and ability” provision

in Article 6. Article 10.04 had not, to that point, been negotiated.

(c) Both the Employer and the Union took the position at the time that Article 10 did not

apply.

(d) The matter was only resolved when Mr. Summer’s lawyer wrote a letter on Mr.

Summer’s behalf. An accommodation was reached that Ms. Carol Gibson, in bargaining,

later described as “not precedent setting”.

The Union’s answers are persuasive. There is no evidence of a clear past practice. The

configuration of clauses was different and the resolution, as was said at the time, not precedent

setting.

Proposed Merger of Articles 6 and 10

The Employer points to the Union’s efforts, in past bargaining, to merge Articles 6 and 10. At the

time of bargaining in 1998-1999 the agreement had an Article 6.06 and an Article 10. However,

there was a “skill and ability” caveat in terms of the order of layoff in Article 6.06. At that point

TFR’s were not included in the main agreement. There was no Article 10.04.

The Union, in its initial run through of its proposals, asked to move all of Article 10 into Article

6.06. The following exchange is reflected in the bargaining notes. CG is Carol Gibson, NM is Neil

Morrison for the Union:

NM

CG

NM

CG

NM

… Article 10, move it to 6.06.

Delete it?

6.06 is layoff language.

6.06 is lack of work. Article 10 is automation and reorganization.

Move to 6.06 and give employees an option of severance pay rather than waiting for

retraining or recall. Employees would have the right to pull that trigger whenever.

So the right goes on indefinitely?

CG

NM

If a person is out of work and can’t put bread on the table, it doesn’t matter why.

35

…

CG

NM

Back to Article10, Enhanced severance benefits. Will you be making a proposal?

Yes.

The next day Ms. Gibson raised an observation about the Union wanting to lay people off by

seniority regardless of their job classification. This led to the following exchange.

CG

I am curious. Proposal pull HTDR-FSR’s into collective agreement. Also layoff by

seniority regulations of class. If we reduced installers would we have to reduce

warehouse. If reducing installers, but warehouse junior, layoff warehouse and move

installer.

NM

CG

Coincident with layoff there is obligation to retrain employees.

Now two clauses mutually exclusive. 6.06-reduction, 10.01.

CG

That is what I meant. If we agreed you would apply. 10.01 does not require application.

How would your proposal affect us given the language now and changes you are

proposing. You think regulation of class, junior employee goes and someone is moved

into the …

NM

CG

But no need for reduction in work force.

That is what we hope. Can never promise.

The next day, June 16, they came back to the topic of Article 10:

CG

NM

You propose picking it up and moving into six and giving a different name.

Blending, almost same except three month time limit now. Would like to leave it up to

employees to decide if and when severance options kick in.

On July 21, 1998 the parties once again discussed Article 10. The too and fro was interlaced with

comments about how Mr. Worthington’s situation had been dealt with (see above).

NM

CG

Article 10. Proposed move into 6.06. Lay off clause and recall clause. _____ 3 months a

lot further out so a person does not have to pull trigger on themselves so soon. Employee

can check out options. Small business, etc. We are also concerned employer may

attempt to use it to end ___ layoff ___________.

I think fair _______ of history. Application of article by company. Article intent to add

different circumstances than article 6. Article 6 address decreasing customers, slow down

in work. There has never been an issue that company has ever tried to misuse 6.06 or

10.00. Different articles, not application to move together. We do not agree to proposal.

As far as union having benefits, we could have discussion. Not categorically saying no to

enhanced severance benefits. Need to look at cost to company.

Referring to _________.

SA

CG

No. 3 parts.

1. Move to 6.06.

2. Enhanced severance benefits.

3. Open time limits to choose.

36

Rather than say no to all I am trying to break up and let you know what we can discuss.

Time limits, not categorically saying no.

…

NM

CG

Article talks about retraining. What would employers position be if contracting out going

on.

If position vacant, could fill, if not vacant, can’t fill. If no vacancy, but call out going on, we

would not have to stop construction to create a position. [blanks in the original]

The topic came up for discussion again on July 12, 1999.

Carol: We have already responded to 6.06 in response to the proposal of June 15. When union

responded, the union came back with two new proposals when we were already six months into

bargaining. The proposals of November 2^ndadded new proposals.

Carol: Article 6.06, union wanted to change language (June 16). Also wanted all new hiring to

cease and all employees should be retrained. Our response was that the contractors would be

terminated who are doing exclusive bargaining unit work.

Also, layoff in reverse order of seniority, provided the employees can do the work in a reasonable

period of time.

Also responded to unions concern about laying off by classification, and could lay off by seniority

only.

The union told us that installers can do the work of Journeymen: We talked about Article 6.06, we

tried to respond to the union’s concern.

Neil:

Union’s revised proposal wasn’t placing (November 2) something new on the table, we

were softening our position. 6.06a and employer’s counter proposal “laying off contractors who

perform exclusive bargaining work” leads right back to 2.08.

Bill:

Will there be contracting out.

Neil:

Yes, contracting out for peaks.

Bill:

go.

Then what is to be contracted out. Let’s identify what. Tell us how far you are going to

Neil:

Where we are going, the day to day work that we perform on a day to day basis should

not be contracted out.

At the time of these discussions Article 6 still had a “skill and ability” provision that substantially

alleviated problems layoff by seniority might have caused. The bargaining on this issue was

wrapped up on November 9, 1999 as summarized by a comment from Ms. Gibson.

Article 10.00 was fine with no change, so I am assuming that it will not pop up again. We did not

sign it off. Would you like to sign it off. IT was part of our 6.06 package so we are signing it all off?

37

[There was no reply]

Mr. Worthington who was President and the Union bargaining team at the time acknowledged the

fact that Ms. Gibson expressed the view that Articles 6 and 10 dealt with different situations. His

evidence is that the Union did not, at any time, agree that her position was correct, although in

cross-examination he said he could not be completely sure of that.

Mr. Worthington was asked to explain the reasons why the Union wanted to merge the two

articles. His memory on the point was poor, but he agreed that merging the two would mean that

in Article 10 circumstances there would be an obligation to eliminate contract work before laying

off bargaining unit members. Implicitly this also meant layoff by seniority would apply under a

merged Article 6 and 10, although that was not clearly expressed.

The Employer’s explanation of the bargaining is that while the Union was seeking to import

seniority its Article 10, by merging it with Article 6, the Employer chose to concentrate on what

they saw as the Union’s stronger concern which was to give redundant employees under Article

10 a longer period within which to make a decision (6 months within the 3) and to add the new

option of being treated as a laid off employee if they wished that in lieu of taking severance.

The parties quite clearly discussed the purpose of the two articles. The Employer very clearly

articulated the view that each had a different scope and purpose. Mr. Worthington says, and the

Union argues, that it never said expressly it agreed with Ms. Gibson’s description. That seems to

be so, but one would have expected something more than silence in response to such bold

statements. The Employer relies heavily on Mr. Worthington’s saying in evidence that obtaining

contractor termination and implicitly seniority rights under Article 10 was one motive for proposing

the unification of the two Articles. Overall however, the evidence falls short of clear evidence of a

common agreement.

The Union wanted to blend the two Articles together for a number of reasons, one of which was to

cancel the use of contractors if the events under Article 10 were triggered. This bargaining

suggests that both parties understood that these provisions had different applications and the

Union wished to eliminate the “loophole” in Article 10 that permitted the continued use of

contractors. Most significantly, Article 6 required layoff in reverse order of seniority whereas

Article 10 did not. The Union would have liked to see Article 10 brought under Article 6 but it is

something they failed to achieve.

38

The Impact of Adding Article 10.04

Both parties point to the exchanges set out in the last section to assert that the decision to add

Article 10.04 referring to Article 6.06 supports their view of the interrelationship of the two articles.

Article 10.04 was agreed to on October 19, 1999 based on a Company counter-proposal. It read:

10.04 At any time during the six (6) month deferment period, an employee may exercise an option

to be treated as a laid off employee under the provisions of Article 6.06. If an employee chooses to

exercise this option, the rights and benefits of this Article shall no longer apply.

The sequence of negotiations shows this was a wrap up to the original proposal to move all of

Article 10 into Article 6.06. At the time, since they had not to that point moved TFR’s into the

main agreement, the proposal included a note reading:

Note:

Article 10.04 applies only to installers, apprentices, journeymen and “A” and “B” foremen.

Understood Consequences of Layoff by Seniority

The Union argues that the possibility of a layoff leaving the Company short of skilled employees

due to retaining less skilled senior employees was clearly understood by the Employer. This

eliminates or reduces the force of the argument that interpreting the agreement as the Union

suggests would create an absurdity or an unworkable result.

Several things were in play at the time. The first was to bring TFR’s into the agreement and, as a

result, into the definition of “technical employee”. The second was to add certain work to the

TFR’s job duties. The third was the proposal to remove the “provided they have the skill and

ability” caveat from the layoff by seniority provision in Article 6.

Mr. Worthington’s evidence is that in 2004 there was considerable discussion about removing the

“provided they have the required skills and abilities provision”. This became more significant

once TFR’s were moved under the main agreement and added to the definition of “technical

employees” and who would then be part of the layoff pool.

39

Bargaining notes from between December 9, 2003 to February 5, 2004 contain several

references to TFR’s. At an introductory meeting the Union gave Mr. Morris, from the Employer, a

list that included three relevant items:

1. 2.08 Jurisdiction

2. TFR’s Clarity bring into main body; and

6. Moving some TFR’s into install jobs.

At the next meeting, on January 9, 2004, the Employer asked what was sought when modifying

Article 2.08 and for what purpose the Union wanted to move TFR’s into the main body of the

agreement. Mr. Worthington is recorded as replying:

You have made it clear that you want TFR’s to do wiring, to do that you must integrate the TFR’s

into regular seniority list.

He went on to say they needed a way to deal with changes in tasks without opening up the

agreement. The notes say, from the Employer, “moving TFR’s to installer” to which the Union

replied, “we would like you to give qualified TFR’s a chance at the position”.

On January 12, 2004 the committee’s returned to TFR issues with Mr. Morris saying:

TFRs to be included in main body of agreement, particularly for layoff recall

Mr. Worthington replied:

Complex issue. Main reason for being in appendix is substantially different work. If TFRs are to do

TV wiring, then they are basically an installer.

In the TFR category there are some different groups some don’t/can’t do wiring others were hired

more as computer people.

These discussions about TFR’s being moved into the main agreement and integrated into the

seniority list ran parallel to some broader discussions about Article 2.08 which described who, in

terms of Shaw employees and contractors, could be used to do what work, particularly when it

came to entering residential homes. That was, at the time, a larger portion of Shaw’s business,

before the rise in the percentage of commercial customers. The company then said, and Mr.

Worthington replied:

The issues of 2.08, counteracting and TFR’s all come together here.

40

Why so many exclusions for TFR’s.

Gives history on TFR’s negotiation.

The Union places significant emphasis on the following exchange between the Company and Mr.

Worthington for the Union.

RM How to integrate TFR’s into seniority list

MW All layoff and recall would be by seniority, all tech employees would be on one list

JM Are you proposing new language

MW 6.03(iii) should be eliminated in favour of one list. TFR’s would become a separate

classification.

RM So if apprentices and journeymen were lower on the list than installer, then they would be laid

off first

MW Yes, by date of hire

JM My concern about TFR’s and 2008 [sic: 2.08] – number of employees supervised by a

foreman, ratio would change (need more foreman)

This, the Union urges, shows unequivocally that, by agreeing to integrate the seniority list, TFR’s

with more seniority would be kept on while more skilled or qualified persons in other categories

would be laid off. The next related and relevant discussion, on February 5^th, arose from Mr.

Worthington saying:

This brings us to the area of contracting out. The Company has indicated that they want TFR’s to

be the primary installation force we don’t want to see overhiring of TFR’s and not having enough

work and in our opinion this was used as a lever to try and get TFR’s to agree to do more wiring we

need extreme clarity and understanding.

We are prepared to talk about contracting out. We need to protect TFR’s from layoff to a certain

extent.

There are concerns about contracting out construction and rebuild yet having our members left out.

Our TFR’s will receive full inst. Rate for wiring.

We understand that you can not pull installers off service calls and onto rebuild but the opportunity

should be there.

The concern over the potential hiring of too many TFR’s is that the available work, paid on a

piece work basis, would dilute the income of the existing TFR workforce.

41

Mr. Mohr replied:

The layoff and recall language needs to be adjusted to ensure enough work for TFR’s.

The next exchange relates directly to Article 6. Mr. Worthington is recorded as saying:

We believe we have made the appropriate changes.

We have defined company and union seniority. We would like to clarify 19.06 by removing “bound

by this agreement” company and union seniority is delineated in 6.03(ii). No change in 6.04 and

6.05. There are substantial changes in 6.06(i). The language reflects layoff and recall to be by

seniority (union) only.

Mr. Mohr replied:

We could find ourselves in a bit of a trap where if we have journeymen and apprentices below

TFR’s on the seniority list and creating a problem with lack of work for TFR’s.

Mr. Worthington agreed that would indeed be the case, then Mr. Mohr continued:

I like the clean language. This also means that 6.10 must be eliminated.

The prior 6.10 related to wage protection for employees assigned to work in a lower classification,

which would not be needed with one integrated seniority list. Both agreed that clause would be

deleted. The next discussion related to Article 10.04. It then had a note underneath it saying,

“Article 10.04 applies only to installers, apprentices, journeymen and “A” and “B”.”

Mr. Worthington said:

In Art. 10, now that TFR’s are into the main body, then we must remove the note at the bottom of

Art. 10 in the Surrey agreement.

The Company agreed, and he continued:

In Art. 10.01 we assume you refer to Union seniority.

The Company replied, “that is correct”.

42

Mr. Morris accepts that the Company agreed to remove the skill and ability clause. If competition

resulted in a loss of market share releasing contractors would not present a problem because, in

the circumstances listed in Article 10, in his view, seniority or contractors would not be an issue.

All this does little beyond confirm each side’s view of the relationship between Articles 6 and 10.

Should we find that Article 6 applies and trumps Article 10, then it does substantially weaken the

“its impractical” argument, but little more.

Differing Approaches

The agreement has, and has had for a long time two sections, each dealing with the loss of work,

Article 10 provides for severance pay and retraining. Article 6 provides no severance pay but, for

a reduction in the workforce by the elimination of contractors doing work technical employees can

do, followed by seniority based layoffs and seniority based recall rights.

The Employer views the two sections as freestanding, each dealing with distinct circumstances.

The Union views the two as interrelated; Article 10 covering a narrow area not applicable here or

simply adding rights to those already provided for in Article 6.06.

The Employer says that Article 10 delineates a different procedure, a different deferral period,

and different severance and transfer rights for those employees who “become redundant due to

the introduction of new methods, equipment or organization.” Articles 10.02 – 10.04 provide

options and benefits for such employees, but, except for the options in 10.04, these are to the

exclusion of the Company’s obligations under Article 6. Article 10.04 introduced later gives the

individual employee a right to be treated as a laid off employee, and if they do so, “the rights and

benefits of Article 10 shall no longer apply.” It argues:

In other words, if article 10 applies, then article 6.06 does not and therefore they are not to be

treated as a laid off employee pursuant to article 6.06 unless they exercise their rights under an

article 10 layoff pursuant to article 10.04.

In the Employer’s submissions, the concept in, and scope of application of Article 10 does not

lend itself to layoffs in order of seniority amongst all technical employees, nor to the elimination of

the use of contractors. It argues:

43

If there is a technological change, there may not be employees available and able to do the job. As

is the case here, similarly, in a reorganization the new organizational structure may not have

employees able to perform the new required job in the new organization necessitating both the use

of contractors and of retaining those skilled employees who could perform the tasks required.

It is these special circumstances that justify a severance payment, whereas a slowdown in

business with a hope of recall if business picks up does not.

In the Employer’s view, Article 6 is to address a generalized lack of work, in which case it makes

sense to eliminate the use of contractors before laying off core employees. In contrast, Article 10

applies where there is a reorganization or similar event that may only affect part or all of one

classification, or a limited area, and where it would be critical for the company to maintain their

ability to use contractors or retain skilled but junior employees in another.

If Article 10 does not apply at all, the case becomes very simple.

In order for Article 10 to apply, as maintained by the Employer, we must conclude (a) that the laid

off TFR’s were “redundant” and that the redundancy was due to “automation, or the introduction

of new methods, equipment and organization.” The Employer says that its decision to eliminate

TFR’s constituted to “a new organization”. New organization is not a very precise term and it

needs to be interpreted in context, including the purpose and scope of the other applicable

reasons. It must read ejusem generis with the other words in the list.

Where a class of things is modified by general wording that expands the class, the general wording

is usually restricted to things of the same type as the listed items (ejusem generis).

Schnarr v. Blue Mountain Resorts Ltd., [2018] ONCA 313 at para. 52

Specifically here the “new organization” is said to be the move to a “single visit” residential

service and install. That change is closely related to the technological changes that allow it to

happen. This included, for example, the ability to control access and channels from a central

office. This also includes, on a forward-looking basis at least, the growing trend to “install it

yourself” home equipment. In support of the proposition that this was a new organization, the

Employer refers to the national scope of the changes, the extensive planning work and the

demonstrated advantages in terms of efficiency for Shaw and its customers, and its savings in

terms of operating costs.

Overall, the evidence persuades us that these changes were an integral part of a National

Reorganization rather than a single decision, under this collective agreement, to eliminate the

44

TFR category, its piece work system and its jurisdictional and service work restrictions. Those

changes no doubt contributed to the Company’s motivation, but it was but one aspect of the

commercial competition pressures it faced and the opportunities the developing technology

offered. We are persuaded that the competition it faced was real and the potential “two visits per

installation” situation was contributing significantly to its declining position.

In assessing the meaning and role of Article 10, its provisions must be presumed to work with

equal force in the circumstances of new equipment, or automation, or new methods.

The Union argues that there was no “redundancy” in this case. It says a real, genuine

“redundancy” is required plus it has to be for one of the listed reasons. The Employer purported to

eliminate the TFR role, but the TFR’s who took the new jobs continued to perform all of the in-

home residential functions previously performed by the 54 employees plus those TFR’s who

become installers. The method of payment for TFR’s was eliminated, but the work, with the

inclusion of service work, continued unabated, in many cases done by the same people.

The Union suggests “redundant” means “exceeding what is necessary or normal”. The Oxford

dictionary described it as “superfluous – liable to dismissal as being no longer needed for any

available job”.

The Union makes the point that if it was the reorganization of the method of doing the work that

triggered Article 10, it would logically apply equally to the installers who had their work

reorganized by having the residential installation work added to what they would do in future. As

the Union puts it “… the employer no longer needed any employees who fulfilled only a single

function in a residential installation”. The Union posits that the reason the TFR’s became

redundant is because it allowed the elimination of the TFR’s along with their piece work pay

system and their limited scope of work. The Union continues:

If the employer genuinely thought there was a redundancy both residential installers and TFR’s

would have been laid off and, in some cases, offered the new position of In-Home Technician …

We submit that there is no redundancy. That only happens when the work disappears. The work

did not disappear. It continues to be done by the In-Home Technicians (installers) and contractors.

The Union says that Ms. Kathryn Hearder said as much when she met with Ms. Marshall and Mr.

Wong on November 8, 2016 to tell them of the layoffs. Ms. Marshall’s notes, which she

confirmed as accurate read:

45

Effective today we are reorganizing our workforce into hybrid service. Installation model we are

calling it in home tech what that means in usw world we are going to reorg job function into catv

installer role as a result folks in the tfr world will be made redundant. (emphasis added)

The Union draws on a decision by this Chair in:

Bethany Care Society v. UNA Locals 91 and 173 (Position Elimination Grievances) (1997) 50

CLAS 156 (Sims)

The Employer operated two long term care homes and employed Registered Nurses for direct

patient care. Its schedule was based on a number of “positions” each with a shift rotation and

attendant benefits defined in a collective agreement. That agreement had layoff and recall

language. What the Employer purported to do was to eliminate 58.47 FTE’s and to retool its

schedule to get the same direct nursing care work done using 3.07 FTE’s less in the process.

The board explained, in summary, the collective agreement provisions, said by the Union here to

be analogous to Articles 6 and 10.

Section 15 of the collective agreement uses two terms - “in case it becomes necessary to reduce

the working force (term 1) or eliminate positions (term 2), ... [the employer will notify those to be laid

off]. These two terms have apparently different meanings and different consequences. In both

cases, the consequent layoff is to be in reverse order of seniority (15.02(a)). However, if the

employee’s position is eliminated she has bumping rights under 15.03(a).

Is there a difference between eliminating positions and reducing the workforce? The employer

says, under 4.01(c) it has the right to decide unilaterally (although in Calgary, by 4.02, reasonably

and fairly) the number of employees needed in any work unit and “whether or not a position will be

continued or declared redundant. The employer’s argument in this case is that it can decide, if it

wishes and without review of its decision, to eliminate all positions for the purpose of achieving a

reduction in the working force and a consequent rescheduling. The Union’s argument is essentially

that position eliminations cannot be used to disguise what is, in essence, a reduction in the

workforce.

In a general sense, a reduction in the workforce occurs when the employer decided it has to do its

work using fewer people. The rule is that the most junior employee goes first. A position elimination

occurs when the employee’s particular job no longer needs doing - using the words in Article 4.01

(c) has become “redundant”. The rule then is that the employee, who may be senior, is given notice

and the right to exercise her seniority to bump a less senior employee in a position of her (not the

employer’s) choosing. In either event, the disruption to the position of the balance of the employees

is minimized. In a reduction, only the junior employees go (although others’ schedules may change

as a consequence). In an elimination, only the employees the redundant employee chooses to

bump has to change (although probably with a ripple effect).

The Board referred, in Bethany at p. 24, to the essential link between the position being

eliminated (declared redundant) and the underlying work.

46

If one were to view a position just as a series of slots on a shift schedule then one could easily

argue that the ability to declare positions redundant must include the ability to eliminate an old

“series of slots” and replace it with a new “series of slots”. But a position involves more than just the

slots assigned to it. It includes the work done and the function served.

And continued at page 25:

The evidence before us of the old and new rotations establishes a high degree of commonality

between the former organization of work and that which followed with the new rotation. The

objective was not, in general terms, to eliminate the doing of specific work, it was to reduce the

number of overall hours it would take to get that same work done. To some extent, particularly in

Calgary, it was to readjust the employee mix. Overall, it was to reduce the work force in order to

achieve savings in labour costs. Layoffs were “necessary” to achieve this. We find the approach in

the cases referred to by the Union is correct. This should have been accomplished from the

bottom-up, laying off the most junior employees and then reorganizing the schedule to the extent

necessary from there, and while respecting the contractual commitments, to achieve the

appropriate coverage level.

While there are some parallels between Bethany Care and the case at hand there are also some

significant differences. There was no question that all the nurses involved were fully trained for

all the positions. Here, the switch to a single visit system required the TFR’s involved to learn

additional skills in order to make the new system work. In Bethany Care the overall work done

did not change, here some of it did, albeit incrementally.

We accept that the changes here were due to an organizational change within the meaning of

Article 10. It is still necessary to conduce that the 220, or at least the residual 54 TFR’s were

“redundant because of that reorganization”. We find that they were. New technologies; actual

such as the ability to disconnect and change channels centrally, and prospectively, with the

anticipation of an increased “self-install” option meant the existing skill sets of the TFR’s had

become inadequate to provide “one stop” installation which included what were previously termed

service calls. The facts in Bethany Care suggested, to a far greater degree, an effort to do

indirectly what could not be done directly.

The Employer’s view, from the outset, is that Article 10 and Article 6 are freestanding, largely

mutually exclusive, provisions. We have found the argument that the two past-practice incidents

provide no support for this argument. However, we accept that in the 1998-1999 negotiations the

Employer’s negotiators made their view of this very clear without any apparent pushback from the

Union.

The basic thrust of the Employer’s argument is an application of the rule that the specific

overrides the general. In the Employer’s view, Article 6 deals with a generalized reduction in

47

work, whereas Article 10 addresses a very specific set of circumstances which, by their nature,

do not fit within the concept of layoffs due to a reduction in work. In contrast, a general reduction

in work, with the hope of a recall once business picked up less obviously justified a severance

payment.

In support of its argument that Articles 6 and 10 cover separate ground, the Employer refers us

to:

Seaspan U.L.C. and Canadian Merchant Service Guild (2015) 122 C.L.A.S. 42 (Kinzie)

Seaspan sold two tugs and eliminated some positions as a result. The Employer argued that the

employee’s rights were based on the seniority and layoff and recall article and the Union argued

that the employees were entitled to examine the options available to them under a Job

Redundancy Clause contained in an Appendix to the agreement. Seaspan operated both

continuous operations and shift vessels. At times it would shift a vessel from continuous

operations to shift and positions would be eliminated. The employer said its past practice had

been to apply the seniority based option or severance pay provision. The Union sought to

enforce the Job Redundancy Clause.

Arbitrator Kinzie faced the same two clause situation we have here. He said, at para. 19:

19 Both sets of provisions, i.e., Articles 1.12, 1.14 and 1.32 on the one hand and the Job

Redundancy Clause on the other, address the subject matter of the displacement of employees

and extend rights to them in the event that happens. However, the rights extended by Articles

1.12, 1.14 and 1.32 are substantively different from those extended to employees covered by the

Job Redundancy Clause.

He then proceeded to describe the two clauses, which are said to be analogous to those here. He

continued at paragraph 22-24 to say:

22

In my view, the parties could not have intended that Articles 1.12, 1.14 and 1.32 as well as

the Job Redundancy Clause would apply to the same situations. Such a conclusion would generate

a conflict because the rights conferred by both are so different. However, harmony is achieved if

the parties intended that they were to apply in mutually exclusive situations. Then, the fact situation

at issue would determine which provisions would govern.

23

When one turns to consider the words the parties have used in the two sets of provisions, it

would appear that they both have wide application. The re-alignment provisions of Article 1.14

apply in cases of "lay off, change in home port, change in home dock, change from shift to

continuous operating and vice versa, or vessels permanently taken out of service ...." The

severance pay provisions of Article 1.32 apply in situations where employees are displaced "due to

automation, mechanization or permanent reduction in the number of vessels or number of officers

48

...." With respect to the Job Redundancy Clause, paragraph 1(b) delineates a range of options

available to "an Officer who is affected by a change in the manning of a vessel ...." With the parties

having used these very general words to express their intentions, the potential for conflict, in my

view, is very real.

24

However, in my view, a closer reading of the words used in the Job Redundancy Clause

resolves the conflict. Reading the Job Redundancy Clause and its two accompanying schedules as

a whole convinces me that it was the intention of the parties with this clause to address the

situation of "the elimination of an Officer's position as identified in the Redundant Job Schedule."

Arbitrator Kinzie had to decide whether there was the type of redundancy contemplated by the

Appendix and found that it was not.

The Union’s position is that Article 10 cannot and should not be read as an island; as a complete

exception carved out of Article 6.06. Article 6.06, on its face, says it applies “when there is a

reduction in the workforce”. It does not limit the circumstances when it applies, for example by

saying, “except when the reduction is provided for under Article 10” or some similar phrase. A

reduction in workforce as used in Article 6 is just another term for a layoff.

35 After this long (perhaps overly long) review of the cases cited to me in which arbitrators have

attempted to define lay-off, there are some conclusions which I believe can be drawn with

confidence. A lay-off is an action initiated by the employer. It is an action which is taken in order to

reduce the work-force. It may be temporary, permanent, definite or indefinite. In the case of a

permanent lay-off, the absence of the possibility of recall does not change the fundamental

character of the employer’s action.

Artcraft Engravers Ltd. v. G.C.I.U. Local 517 (1990) 12 L.A.C. (4^th) 363 (Brent)

See also:

Toronto East General Hospital v. O.P.S.E.U. (Pang) (2009) 183 L.A.C. (4^th) 84

The Union says it does not matter that the Employer considered the TFR job to be redundant. It

was none the less a lay off and a reduction in the workforce. It refers to the following conclusion:

100

The Grievors have lost their employment. The loss of employment is normally considered to

be a lay off. There is no definition of lay off in the Collective Agreement. The Collective Agreement

does not say that a displacement under Article 11.05 is a termination or a justifiable discharge, and

does not amount to a layoff for the purposes of Article 11.06. The fact that their positions have

been declared redundant, and they have been displaced pursuant to Article 11.05, does not mean

that they have not been laid off.

York University and CUPE Local 1356 (Price) (2007) 91 CLAS 196 (Chauvin)

49

Based on the bargaining history, we find both parties understood that the effect of Article 6, when

applicable, would at times require the layoff of higher skilled junior employees before lower skilled

senior employees.

The Union’s says that Article 6 applies, and Article 10 does nothing to reduce its application.

Article 6 has no limitations due to the cause of the layoff. There was a reduction in the workforce

of 54 TFR employees, who were technical employees. Article 6, the Union says, is a seniority

based provision. As such, any diminution of that seniority protection requires clear language. See

Tung Sol (supra). It provides job seniority to technical employees by preventing layoffs until all

the contractors doing their work are terminated and, if necessary, the most junior “technical

employees” – not just TFR’s, are laid off, despite superior skills. As a restriction on contracting

out, it is to be construed in the Employer’s favour. (See Russelsteel (supra)) but exceptions are

to be strictly construed in the Union’s favour. See Alcan Smelter (supra).

The Union relies on the following proposition:

13

Where two interpretations of an agreement are equally capable of being read into the

agreement, an arbitration board is required to settle which of the two must prevail. The choice is not

merely one of fancy. Certain principles must guide the arbitrator. Generally speaking, that is why

arbitrators are now permitted to hear what formerly was called "extrinsic" evidence — such matters

are intent of the parties, history of the agreements, administration, previous contracts, etc. But

more basic and fundamental rules bind arbitrators than extraneous or extrinsic matters. They are

the fundamental principles of contract interpretation. One of those principles is that a contract ought

not to be interpreted to disentitle a party to other rights under the agreement unless there is

express language to support that view. Thus where two viewpoints have equal validity arbitrators

are expected to support that view (in the absence of such matters as express intention) which

supports a continuation of general rights and which does not have the effect of negating the

agreement or making it mean less. (emphasis added)

Western Mines Ltd. v. C.A.I.M.A.W. Local 19 (1982) 1 L.A.C. (3d) 31 (McColl)

The Union says as this was a reduction in the work force, the onus is on the Employer to prove

that the contractors it admittedly employed were not performing work that any of the technical

employees would normally perform on a regular and ongoing basis. The employee’s own

evidence, particularly its analysis of the 308 contracts, shows this was not the case.

The Union’s says Article 10 does not take precedence over or “trump” Article 6. In contrast to the

Employer’s view that they are separate articles covering separate territory, the Union argues that

the two must be read together, not in isolation. They must be interpreted in the context of the

entire agreement and in harmony where possible.

50

In the Union’s view, Article 6 and Article 10 can also and in fact does co-exist without conflict.

Article 6 provides employees with the basic protection that comes with their seniority and

permanent job status. That is, when someone has to go, it is contractors first and then junior

employees on the “last-in first-out” rule (amongst technical employees). As to Article 10’s role, it

then argues:

In the event that the reduction of workforce is caused by the introduction of “new methods” (or

some other reason set out in article 10) then article 10 applies (if there is a proper layoff that follows

the requirements of article 6) to provide employees with additional benefits that would not be

available if the reduction of the workforce is for some reason not enumerated in article 10.

Specifically, article 10 provides an opportunity for training for certain jobs and for enhanced

severance payments if another suitable job does not exist or they fail in the training.

Article 10 provides that if they take the enhanced severance under article 10 then the employer is

free and clear of their obligation to that employee.

10.04 gives the employees an option to either take the enhanced severance or to go on the recall

list “to be treated as a laid off employee under the provisions of article 6.06” in which case they are

no longer entitled to the enhanced severance.

…

… in context, what article 10 does is add additional rights and options for employees who are

otherwise properly laid off under article 6 when the reason leading to their layoff is one of the

reasons set out in article 10.

As noted above the Union’s view is that recall rights under Article 6 are unending. The Employer

says they only last one year, based on the Canada Labour Code provision. This difference only

affects the attractiveness, to an employee, of exercising the option under Article 10.04. It is not an

issue we need to decide.

Both parties draw support from the role of Article 10.04, once added to Article’s 10 language at a

later date. The Employer says it confirms its view that Article 10 is freestanding, because if not,

then under the Union’s interpretation the employee would either not have been laid off in the first

place, or, if they were, under Article 6 they would already have the recall rights Article 10.04

offers.

The Union says the role of Article 10.04 is to give employees laid off under Article 6, but due to

the particular circumstances where Article 10 applies, the additional options of retraining on

severance. It also increased the timeframe when the option for severance must be exercised to 6

months – a trigger date by which they must chose the severance pay or thereafter rely solely on

any recall options that might arise.

51

Is the apparent scope and purpose of Article 10 such that it would logically and practically exist as

a “carve-out” of Article 6 in circumstances where there was as a result of the circumstances to

which Article 10 applies also a “reduction in work”? Are its provisions such that it calls for

different rights and process in these specific circumstances, or that call for additional rights and

processes?

We need to interpret the words in Article 10 and Article 6.06 in a way that gives them both

meaning, in the context of the entire agreement. Both Articles, in earlier forms, have co-existed in

this agreement for many years. Both Articles addressed the situation when bargaining unit

members might lose employment, and the rights that accrue to them when it happens. Article 10,

throughout, has recognized that this loss of work may happen in particular and limited

circumstances; when the individuals are redundant (no longer needed) due to “automation, or the

introduction of new methods, equipment or organization”. These circumstances are more likely to

invoke a true severance with little or no chance of a return, as opposed to a layoff with a chance

of return in the event of increased business and job opportunities. This has been true as far back

as we have evidence.

We know that, since then, changes have been negotiated. First, in Article 6.06 the parties agreed

to remove the “skill and ability” clause that was a condition of the exercise of seniority rights

amongst technical employees. It would be reasonable to assume that in the original definition of

technical employees, excluding TFR’s, there might be some correlation between higher seniority

and higher skill sets; the longer a technical employee was employed the greater their chance of

acquiring the skills needed for their job. However, the other change, most significant for this

case, was the decision to bring in the TFR’s into the agreement, into the definition of “technical

employee” and thus into the seniority pool.

On the Article 10 side, the change ultimately agreed upon after a broader effect to integrate the

two Articles, was to extend the period when a severance payment option remained open and to

add Article 10.04 which once again reads:

10.04 At any time during the six (6) month deferment period, an employee may exercise an option

to be treated as a laid off employee under the provisions of Article 6.06. If an employee chooses to

exercise this option, the rights and benefits of this Article shall no longer apply.

We find that, viewing these two Articles as they existed before this change, the better view is that

they were indeed freestanding, the specific provisions in Article 10 recognizing that employment

may cease, not due to lack of work generally or just cause, but due to changes in the work that

needed to be done due to technical change or like causes. We find that this specific provision

52

existed as an alternate to a seniority based layoff, but with retaining and severance pay options in

lieu. Thus, our finding is that Article 10, as a specific provision, must be given effect over the

more general provisions of Article 6. Our view on this basic conclusion is not altered by the

evidence of past practice or negotiations, or by the changes just described to the two Articles.

The argument that Article 10.04 was put into Article 10 to add an option, at the same time as

setting a trigger date for making an election, is the more probable explanation given the evidence

of efforts to merge the two Articles entirely. The words “may exercise an option to be treated as a

laid off employee … under Article 6.06” are inconsistent with the proposition that they already

have rights under Article 6.06. “Exercising the option” would only give them the right to claim an

available job based on their seniority, and under the Union interpretation, that would be mostly

empty since, if they were already able to assert their seniority, Article 6.06 would probably have

prevented their layoff in the first place. It is clear that both Article 6.06 and Article 10 both deal

with a reduction in employees, but Article 10 deals more specifically with a reduction because of

limited and particularized circumstances. For those persons, it provides a complete package of

benefits different from Article 6 for those employees.

For these reasons, the grievance must be dismissed. Any rights these laid off employees have to

Article 6 coverage was dependent on their having made a timely election under Article 10.04.

Disclosure and Production Issues

This hearing was prolonged and made more complex than it might have been because of

ongoing disputes over disclosure and the production of records. The Board ruled on these

disputes as and when they arose during the hearing. The parties made several significant

arguments and the Union asked for our rulings on certain points. What follows documents those

arguments.

On April 20, 2017 the parties agreed to hearing dates to run from February 13 to 15, 2018, their

estimate being that it would take 3-5 days to complete.

The adversarial system, whether in Court or in labour arbitration, protects similar values. Parties

are generally entitled to receive disclosure from the other side of documents and similar things

related to the litigation. This may be reliance documents the one party may be introducing as part

of its own case, or it may be relevant documents in the possession and control of one party that

may, if disclosed (or “discovered”) be supportive of the other side’s case.

53

The adversarial system also depends upon and protects other interests which includes the

privilege that attaches to communications between a client and their solicitor and a somewhat

different privilege that, for the particular case, protects the solicitor’s brief, or work product. That

privilege allows a lawyer to prepare a case without being obliged to disclose the product of that

preparation to the other side.

Production and disclosure creates openness, and thus the opportunity for each side to prepare its

case and its response to its opponent, and thus facilitating the search for truth. Privilege, when it

applies, restricts that openness. Cases, over time have sought to describe when each applies

and how the balance is to be maintained.

(a) Chronology

On January 26, 2018 Union counsel wrote to Shaw’s counsel setting out particulars of its case

and “relevant documents currently in our power, possession or control”. This was quite late in the

day, but the Union’s particulars had largely been set out in its original grievance. The Union’s

letter asked the Employer to provide its particulars and all potentially relevant documents by

February 2, 2018. It also listed specific documents it sought beyond this general request.

1. All route lists or other documents indicating what, if any, work individuals who work for Shaw

contractors performed for the Employer between December 9, 2016, and present, including, with

limiting the generality of the request, for the following individuals.

a. Ray Lamotan;

b. Randy Pilon;

c. Luke Warrener; and

d. Jamie Koostra.

2. All documents, including schedules, reports, handouts, agendas, or assignments, used by the

Employer to train TFRs who were transitioned to Installer positions pursuant to the Employer’s

reorganization of its operations that is in issue in this dispute.

3. All job postings for Installer positions in the bargaining units at issue from December 9, 2016 to

present;

4. All documents relating to applications for Installer positions, submitted to the Employer between

December 9, 2016 and present, from any of the 54 laid off TFRs, including any documentation that

discloses out the outcome of those applications;

5. The names and date of hire of all employees hired into Installer positions from December 9,

2016 to present; and

6. All bargaining notes from the 1999, 2001, and 2004 rounds of bargaining.

54

The individuals listed in point 1 each worked for a third party contractor doing work for Shaw; a

potential factor under Article 6.

Employer Counsel replied by email on January 31, 2018. Its particulars were that it complied with

Article 10 of the agreement and that Article 6 did not apply given that the layoff was based on a

reorganization. No documents were included. Union counsel asked for a conference call.

On February 3^rdEmployer Counsel alleged it had received neither production nor particulars.

However, it had received something in Dropbox, a service to which it did not subscribe. No such

subscription was in fact necessary; a simple click on a link would have sufficed. Particulars, in

any event had been disclosed in a letter. Two hours later the Union again asked for a conference

call over disclosure since the Employer had sent nothing to that point. The next day, Sunday

February 4, 2018, Counsel for the Employer wrote saying:

The fact is in until we obtain particulars from my friend, we are unable to provide any in response,

let alone productions. Now that we have seen my friend’s productions, they bear no resemblance

to what we understood the case related to and productions which we would’ve provided now

appear to be irrelevant. I suggest the following. Mr. Edgar should provide us particulars as to

precisely what his case is based upon and what he is seeking. We will then be able to determine

what productions we may have that are relevant.

What is obvious is that we were preparing for an entirely different case then we appear to be facing

since the productions provided by my friend bear no relationship to anything we had understood to

be relevant. We look forward to our friend’s particulars.

The Union replied denying that this was accurate as particulars had been provided on January

26^ththrough January 31^st. Further exchanges took place over the next few days, hampered

somewhat by the Employer Counsel’s attending to other matters. The Union submitted a

proposed Order for Production. The Employer wrote, on February 7, 2018:

I have not had any response from Mr. Edgar as to the list of items we have agreed to. When the

clients are out of town, has a case here, I generally meet with them only the day before and that is

and was my plan on this occasion. Until I do that, I only have an an amorphous and generalized

understanding of the case.

We recognize the logistical difficulties out of town Counsel may have, but this practice,

particularly in a complex hearing, may be sufficient for briefing one’s own client, but leaves

insufficient time for opposing Counsel to respond to production and adequately prepare

themselves. Unfortunately, this same practice proved to be a source of delay on several

occasions during the course of the hearings.

55

A conference call hearing was held on February 8^th. Some disclosure was directed immediately

and more was to be dealt with at the upcoming hearings. Exchanges during the February hearing

days disclosed that the Employer’s records were a mixture of computer records from its dispatch

system with linked work orders, notes called CSS or spin notes and other records. The Employer

expressed reluctance to produce some records based on volume and arguable relevance. It also

advised that some of the records could not be extracted from its computer systems particularly as

some records were only kept for 12 months. As subsequent production a year later showed, this

proved not to be the case, and more informative records were indeed available and used by Mr.

Cooksley in preparing for his testimony. The Union again provided a detailed list of what it was

seeking.

1. List of all contractors doing Shaw work installations by way of a “work order” or work identified

with a “SC” number on the relevant order as at November 8, 2016.

2. Route lists, work orders and orders identified with an “SC” number for every 3^rdcontractor on

the list in #1 for Nov 9, 2016 to date. Arrange the contractors on the list alphabetically and provide

the documents for the 1^st, 4^th, 7^th, etc contractor on the list.

3. If they are not otherwise included in #2, provide the same documentation as requested in #2 for

Ray Lamontan, Randy Pilon, Jamie Koostra and C Lanhofer.

4. If the specific documents listed in #2 are not available for production, provide documents that

provide all of the same information that would be included on the work orders and “SC” orders,

specifically including for each such order:

a) Date of the work order or SC order

b) Technician number and name

c) Work order or SC order number

d) Customer address and name

e) The equipment to be installed

f) “Spin notes” and/or special instructions, if any.

5. The relevant 2004 bargaining notes, including those taken by Richard Morris. Ensure that the

notes for Jan 13, 2004 and Feb 5, 2004 are included in the production.

6. Any documents that the employer considers relevant or wishes to rely upon. (Cross examination

of several of the union’s witnesses has suggested that documents exist to support the assertions

put to the witnesses. Any documentation that exists for those assertions should be produced).

7. An updated seniority list for both bargaining units to today’s date.

After the February hearing days, the Board wrote to the parties:

The hearings will resume on:

March 23, 2018

56

June 4, 2018

July 16, 2018

As to the production request, the Employer is to obtain records from its FFM System as soon as

possible (estimated to be 2-3 weeks). The information disclosed will be submitted to the Union for

review, recognizing that it does not, apparently, have the ability to disclose the particular equipment

installed.

The request for a seniority list has been met by the list provided January 11, 2018 with the work still

being done to clarify certain matters. The Employer agreed to provide any further reliance

documents once its revised assessment of the witnesses it will be calling is done. The Employer

will contact Mr. Morris to obtain any further bargaining notes in his possession, his authorship of

those already produced, and any further information he may have about the existence or location of

any additional bargaining notes.

If anything further needs to be done to facilitate disclosure, I am available for a conference call at

the request of either party. I encourage both parties to complete this disclosure process as soon as

possible so as not to cause any delay. I look forward to seeing you in March.

The Employer sent the Union a series of documents on March 14^thand March 16^th. Union

Counsel wrote to the Employer describing shortfalls and indicating:

Finally, we anticipate requesting a conference call with Arbitrator Sims to address the above issues

– as well as any further issues we identify with the Employer’s disclosure – and the impact of the

Employer’s late disclosure on our ability to proceed on March 23, 2018.

Following a conference call on March 21 the scheduled March 23 hearing date was cancelled and

further direction for timely disclosure, agreed to by the Employer, given. On April 17^thUnion

Counsel wrote to Employer Counsel asking for more specific information about 112 of the

disclosed work orders, to be produced by April 27, 2018. On May 3, 2018 Union Counsel wrote to

the Board saying no further production had arrived, despite the Board’s direction and the

agreement of Employer Counsel. Questions then arose over the need for additional hearing

dates, and over remaining disclosure. The Board wrote to the parties on May 22, 2018 saying:

It is the panel’s ruling that the hearing should proceed on the dates as scheduled; that is June 4

and July 16, plus the four days, initially scheduled for another case, on September 4 to 7, 2018.

This decision was primarily due to the concern that the evidence and argument be concluded

without further interruption. To achieve this the panel expects counsel:



To begin, and resume, following adjournments on time;

To proceed with argument as soon as the evidence is concluded;

To avoid entirely or keep to a minimum, adjournments to prepare for cross-examination,

obtain instructions and so on;



To raise and have resolved before the resumption of hearings any further issues of

production, or any procedural issues, with the potential to impede the hearings;

To ensure that witnesses are scheduled and notified in advance of their need to attend.

57

The hearings resumed on June 4^th. That same day the Employer produced a book with a series

of documents not previously disclosed.

Mr. Jason Little took the stand on June 4^th. He advised that he had reviewed the work orders

produced by the Company. Among other things, he testified about the 308 work orders, as

described above.

He also testified about his activities following the layoff. The Employer sought to use the

documents only produced that morning. The Union objected, saying the documents should have

been produced at least on the previous Friday. The Employer replied that it had only learnt on

the Friday that Mr. Little was going to be called, and counsel only saw the documents when he

arrived in Vancouver late Sunday afternoon. The documents included Mr. Little’s work schedule.

The Board allowed one document to be used in cross examining Mr. Little. The Union objected to

the admissibility of the remaining documents on the basis that, notwithstanding the Board’s

direction production that should have been made earlier was only made on June 4^th. Further

argument on this point was made on July 16^th.

At the Union’s urging we allowed a voir dire to find out why documents ordered to be produced in

March were not provided until immediately prior to the June 4^thhearing.

Ms. Helen Meaghen testified that the primary cause was pressure from other work. The

Employer had just initiated a voluntary severance program involving a high percentage of

employees. She was engaged in bargaining with the Steelworkers. Mr. Cooksley was busy in

pulling work orders for the case. The Employer, she says, had not expected the Union to call

evidence from Mr. Little, to the effect that TFR’s already possessed the skills to do service and

commercial work. Personally, she had to leave Vancouver for Scotland due to her father-in-law’s

illness; something obviously beyond her control. Despite all this, Ms. Meaghen conceded that

“the obligation to disclose was not prioritized in the way it should have been”. We agree.

Asked, in particular, why Mr. Sedgwick’s document had not been produced earlier, she said they

had not known of it until they met with Mr. Sedgwick on June 3^rd. She also added “sometimes we

wait until Howard (Employer counsel) is here in person for prep.” To her recollection Counsel had

not been in Vancouver at all between March and when he arrived on June 3^rd. Counsel himself

added “nothing went out without my seeing it”.

58

In respect to the document involving Mr. Little, she says, they only learnt that he would be called

on the Friday, just in advance of the hearing. Ms. Meaghen could not recall being asked to

search for or produce any document that might be used to support the Employer’s case (reliance

documents).

Mr. Sedgwick testified that he first met with Shaw and its Counsel on Sunday, June 3^rd. He had

not had access to any Shaw records and had to ask Ms. Meaghen for access to his old computer

folder. Ms. Meaghen had asked him about being a witness sometime in May, but no one,

including Employer Counsel, had contacted him to discuss his evidence, although he had been

available.

Ms. Rachel Paisley testified to reviewing the documents to be produced on May 21^st, that Ms.

Meaghen returned to Vancouver on May 29^th, and that she first saw her on June 3^rd. From the

production order in March forward, Ms. Paisley confirmed that a great level of attention was going

to the voluntary severance program. She had not been asked by Counsel to produce anything

following February 15^th. She was not asked to, and did not in fact, put her mind to producing

documents that might support the Employer’s case.

The voir dire shows that, despite the Board’s direction for disclosure of both specific and reliance

documents, no directions were given to Shaw’s employees to search for or assemble documents,

or to produce them as directed. These documents were only reviewed on June 3^rdwhen Counsel

arrived for the next day’s hearing. This undermines the integrity of the arbitration process. A fair

hearing requires pre-hearing production of documents, and the Union can suffer prejudice if, as

here, it has to put in its case before timely production.

The Union objected to admissibility on the basis of what is broadly called litigation prejudice; that

is prejudice to its ability to proceed with its case in an orderly and predictable way. It did not

assert any particular prejudice over the production or admissibility of any particular document.

The Employer acknowledges that there was no question an order was made, with a deadline,

missed in relation to some documents. It argued that while mistakes were made Shaw’s conduct

was not egregious, and any harm could be cured by having Mr. Sedgwick stand down. The

Union had eight weeks to present further evidence and the ability in any case to call rebuttal

evidence.

The Board came to a mixed conclusion on the admissibility of the documents in the book first

provided on June 4^th. This decision involved weighing the reasons for prior non-production, the

59

significance of what was put forward and the difficulties of each document’s use might entail.

Certain documents were excluded while others were allowed. It also followed our review of the

case law described below.

After Mr. Sedgwick had given his evidence using a spreadsheet about how he categorized and

reviewed the contracts in the list of 308 transactions, the case was adjourned. When it resumed,

the Union was provided with a significantly revised version of the same data. The Union again

objected to its use, along with certain other undisclosed documents. The Employer replied, in

part, that at that point the documents in issue were not producible because they were protected

by privilege; either solicitor-client privilege or the narrower forms of privilege, variously call

litigation, lawyer’s brief or work product privilege.

In the course of these events, we heard further objections and arguments about the obligation to

disclosure, to gain particulars, about what should happen if disclosure or particulars are not given,

at all or in a timely way, and what matters are protected from disclosure on the basis of privilege.

The parties provided authorities on all these issues from the Courts, and from labour boards and

arbitrators.

(b) Production

Labour arbitration is not civil litigation. There is a temptation to compare the two and to use the

rules of civil litigation as somehow setting the standard for procedural fairness in arbitration. Yet

critics of civil litigation not infrequently cite arbitration as a way to overcome some of the more

cumbersome aspects of traditional court process.

For many years the ability of an arbitrator to order pre-hearing disclosure and production, at least

short of a subpoena duces tecum, was uncertain. For the Federal jurisdiction this was rectified by

the introduction of changes to the Canada Labour Code in 1998. In the report – “Seeking a

Balance” the Task Force, making the recommendation for this change said:

Everyone agrees that arbitration should be efficient, flexible and able to deal expeditiously with the

real issues in dispute between the parties. The hearing process should be reserved only for those

issues that cannot be resolved by the parties on their own. The process should not be allowed to

become so protracted that remedies are rendered meaningless or continuing liabilities escalate

beyond any rational measure.

We recommend giving arbitrators statutory authority to enable them to help make the process more

efficient and help focus on the real issues. We include the power to make prehearing orders for

particulars and the production of documents or other evidence. In some cases, interim relief orders

may be appropriate.

60

The Task Force did not recommend, and Parliament did not adopt, Rules to govern the exercise

of these powers. They left without statutory guidance just what the remedy should be in the event

of insufficient particularization or a failure to disclose documents. The new powers have been

used in constructive ways to improve arbitration, but they have also, in some situations, led to

protracted pre-hearing litigation on disclosure. Traditionally, pre-hearing issues have been dealt

with through courtesy and collaboration between Counsel, or informal resort to the arbitrator for

pre-hearing directions. Issues arose several times throughout these proceedings.

In civil litigation, throughout Canada, there are specific Rules of Court allowing one side to

compel the other to produce relevant documents (unless privileged). This includes both

documents one side wishes to discover from the other to prove their own case and reliance

documents of the one side so that the other can prepare. Those same rules usually specify a

way of resolving privilege claims prior to trial, and for enforcement in the event of default.

Arbitration has no such rules to serve as a starting point. What it does have, which civil litigation

does not, is a grievance procedure, protected by its own privilege, and normally drafted by the

parties themselves. In the normal course, once an arbitrator has been selected, the parties’

Counsel will voluntarily exchange any required particulars and disclose sought after as well as

reliance documents. Failing that, resolving issues of privilege, disclosure, particulars etc. all fall

to the arbitrator.

A decision of the B.C. Labour Relations Board provides a useful discussion on how that board

should approach disclosure. In particular, it recognized the problem (exacerbated perhaps by

Sattva (supra)) that, in cases like the one at hand, disclosure can become disproportionately

onerous. The parties in that case discussed the then recent changes in the B.C. Court Rules that

narrowed the appropriate scope of pre-trial discovery obligations. One party urged the Board to

follow, as it had in the past, the provision in the Rules. The perceived changes in scope is

described as follows:

3 The Employer takes the position the Board should adopt Rule 7-1(i) (the “Rule”) of the Supreme

Court Civil Rules, B.C. Reg. 168/2009 (the “Supreme Court Rules”) which came into force on July

1, 2010. The Rule limits discovery of documents to:

all documents that are or have been in the party’s possession or control and that could, if

available, be used by any party of record at trial to prove or disprove a material fact... .

4 The Employer says the Rule substantially limits a party’s right to discovery of documents, as is

confirmed by the report Effective and Affordable Civil Justice, Report of the Civil Justice Reform

Working Group (the “Working Group”) to the Justice Review Task Force, B.C. Justice Review,

61

November 2006 (the “Report”) which was the genesis for the formulation of the Supreme Court

Rules. … The Working Group predicted the Rule would lead to all documents material to a case

being disclosed but not those documents that were marginally related to the case.

5 The Employer submits it is important to note the Rule is grounded in the pleadings filed in the

case—documents must only be disclosed that prove or disprove material facts. The Employer says

this avoids “fishing expeditions” in regards to matters not specifically plead.

University of British Columbia (2010) C.L.R.B.R. (2d) 200 (B.C.L.R.B.) at paras. 3-5

The Board decided to follow the newer approach, saying:

20 I do not agree that the case of HEABC and the approach taken there is to be preferred to

adopting the Principle. The prospect of one party expending a disproportionate amount of its

resources in assembling an enormous amount of potentially relevant documents so the other party

may then expend a disproportionate amount of its resources sifting through the documents is not,

in my view, an ideal approach under the Code where there is clearly a better alternative. This is

especially so given that it is the Board’s duty under the Code to promote conditions favourable to

the orderly, constructive and expeditious settlement of disputes.

21 In my view the Principle requires parties to focus on the fundamental issues in their case, and to

focus on obtaining and disclosing those documents which are necessary for litigation. The parties

should use the pleadings to guide their document disclosure requests. It goes without saying that

all documents referred to in the pleadings should be disclosed, including all reliance documents,

which I understand the parties in this matter have agreed to exchange.

UBC (supra)

The Board did repeat an important expectation contained in an earlier decision:

The first obligation is, of course, on the parties and their counsel to themselves address and, if at

all possible, resolve such preliminary issues. Those issues include the pre-hearing production of

documents and particulars... . The Board expects experienced counsel, such as those

representing these parties, to attend to these matters, and finds that is most often the

case. (emphasis added)

UBC (supra) at para. 26

In our view the parties and their counsel have the same obligation in an arbitration case,

particularly one of this potential complexity. We also find persuasive, subject to the expressed

concerns about disproportionate resources the B.C. Board’s adoption of the following general

statement of the scope of the duty to produce.

This principle states all documents that are or have been in the party’s possession or control and

that could, if available, be used by any party of record at trial to prove or disprove a material fact,

should be disclosed (the “Principle”).

62

UBC (supra) at paras. 15 and 29

The Board added another principle we think it was to adopt for arbitration:

27 The result in this preliminary decision does not allow the Employer or Properties to sit idly by

while making no efforts to obtain those documents which fit within the Principle, waiting for the

Union to request them. I expect the Employer and Properties to actively and efficiently produce

those documents which fit within the Principle, bearing in mind the purposes of Sections 35 and 38

of the Code, and the fact the Union does not have at its disposal the discovery processes and

procedures used in the courts. The position of the Employer and Properties has been that the

disclosure requests of the Union were so broad they were unreasonable and impossible to comply

with. Now that all parties know the test to be applied, I expect issues of document disclosure will

be more focussed, efficiently dealt with and, in the majority of instances, settled by agreement.

UBC (supra) at para. 27

For a description of the way such issues are dealt with in arbitration the Union refers a decision of

Arbitrator Newman: A dismissed grievor denied a pattern of insubordination. A tape recording

existed with the potential to support that grievor’s denial. The Union had told the Employer it had,

and intended to use, the tape but declined to produce it. The tape was ruled inadmissible. The

arbitrator said, at para. 30:

30 Arbitration hearings are not conducted according to a complex code of rules, but according to a

standard of fairness which is necessarily flexible. The standard is intended to ensure that parties

come to hearing with a reasonably comprehensive understanding of the case the other intends to

prove, and with a reasonably comprehensive understanding of the issues and argument with which

they will be met. This expectation accomplishes more than an assurance of fairness at hearing. It

enables the parties to operate from a position of knowledge and understanding, as they abandon

the possibility of resolving their dispute, and defer to the judgement of a the third party arbitrator.

31 So it is, in the interests of fostering a dispute resolution climate in the field of labour relations

which enhances opportunity for negotiated resolution of disputes, that arbitrators are generally

known to order the production of all documents which appear relevant to the matters in dispute,

once a reasonable and clear request has been made for such production.

Dough Delight Ltd. V. Bakery Confectionary Workers Local 181 (1998) 74 L.A.C. (4^th) 144

(Neuman)

We agree with this statement of process and expectations. After referring to the statutory

authority, the arbitrator continued at para. 33:

33 The discretion exercised under section 48 (12) of the Act is generally exercised in favour of the

admission of all relevant material into evidence in the interest of ensuring a determination based

upon a comprehensive appreciation of all germaine information. But that will not be true where a

request to produce has been made by the party opposite, and where the request has been refused.

63

34 Here, a clear and appropriate request was made for production of a document, a tape

recording, which the grievor contends has relevance to the proceedings. The grievor had control of

the document, and refused to produce it.

…

36 The arbitrator's discretion under section 48(12) is exercised in appreciation of the rules of

procedural fairness, as well as in the interests of thorough exploration of the issues. That discretion

is properly exercised to consider inadmissible such evidence which, although potentially relevant to

the facts in dispute, was withheld from disclosure. To hold otherwise, in my view, would be to

condone a practice which accomplishes the "trial by ambush" of which Vice-Chair Herman spoke.

The party who chooses to disregard the rules and practices which serve the interests of fairness in

the hearing process bears the risk of failure. The grievor's refusal to produce his tape recording

was in disregard of those practices. He can not, once the hearing is underway, and the Company

has closed his case, rely upon that evidence.

Dough Delight (supra) paras 33-36

The Employer maintains that Dough Delight is an exception, the only example of an exclusion for

a missed deadline, and it involved a bad faith ambush. Several other arbitration or Labour Board

authorities were put to us where documents were allowed to be used despite missed deadlines or

a failure to produce. They illustrate the variety of issues that can arise as well as the remedies

proposed.

In an Ontario Labour Relations Board case a relevant document was found, well into the case,

which Counsel indicated would be relied upon. The other side objected and argued that it relied

on the representation that all ordered documents had been disclosed. It argued at paras. 13-14:

13. … it relied on the responding party’s representation that it had been provided with all of the

relevant documents in preparing for the case and in conducting its cross-examination of both of the

responding party witnesses who testified on the first day. The applicant relied on that

representation in deciding how to conduct its case and the late introduction of this document

therefore causes prejudice to the union. The applicant took the position that the Board’s truth-

seeking function is not undermined by denying the responding party leave to introduce the on-site

bill, because despite the absence of the document, the responding party may still advance the

position that the equipment was on site and was used by one or both of the individuals in dispute.

14. The responding party argued that its failure to produce this document was inadvertent and not

deliberate, and it should not be penalized as a result.

…

16. I accept that the on-site bill was inadvertently left out of the responding party’s productions and

that it appears to be relevant to a key issue in dispute. Accordingly, it is appropriate for the Board to

allow the responding party to rely on it.

LIUNA v. Caron Equipment Inc. [2018] CanLii 53311 (O.L.R.B.)

64

It then imposed certain conditions to ensure no further problems occurred.

The Ontario Grievance Settlement Board was asked to dismiss proceedings because the Union

had failed to comply with a production order. It declined to do so.

7 Notwithstanding my misgivings about the Grievor's inability to provide more complete

documentation in a timely fashion, this is not a case in which the Grievance should be dismissed

for a failure to comply with the Production Order. The premise for the success of such a motion is

that the failure to comply with the Order constitutes an abuse of the arbitration process. In those

few cases cited wherein a Grievance has been dismissed, the failure to comply was much more

deliberate than the Grievor's conduct here. See, for instance, National - Standard Co. of Canada

Ltd. and C.A.W. Loc. 1917 (1994) 39 LAC (4th) 228 where Arbitrator Palmer at page 235, having

recognized that an Arbitrator does have the power and authority "to make such orders and to give

such directions in proceedings as he, she or it considers appropriate to expedite the proceedings or

to prevent the abuse of the arbitration process", did dismiss the Grievance before him. However, he

did so only after having found the Grievor intentionally failed to comply with production orders he

had given earlier during the proceedings. Further, the Grievor in that case had altered evidence

which he had been directed to produce.

Ontario (Liquor Control Board) and O.L.B.E.U. (Goncalves) (2005) 82 C.L.A.S. 286 (Carrier, Vice-

Chair)

That case referred to the following:

20. In my view, the dismissal (or granting) of a grievance for non-production of documents is an

extraordinary remedy. It should be granted only in the clearest of cases where there is an abuse of

the arbitration process or the parties’ ability to have a full and fair hearing is irrevocably

compromised. This case does not meet that standard.

O.P.S.E.U. v. Ontario (Ministry of Attorney General) (Hunt Grievance) [2005] O.G.S.B.A. 41

(Abramsky)

Arbitrator Hornung dealt with objections based on lack of sufficient particularization of what a key

witness would say in a promotion case, and a failure to produce what had been agreed to by

counsel at the outset of the hearing. The Union argued for exclusion of the witnesses’ evidence,

the gist of which had not been particularized. The arbitrator described the objection:

24 The Union argues that the Employers failure to provide the particulars requested while offering

up the detailed evidence of Ms. Robertson left it at a significant disadvantage in that it was not fully

aware of the case it would be required to meet. Based on jurisprudence essentially related to

Labour Relations Boards (Royal Vinyl (1994) O.L.R.B. Rep. August 1057, [missing text] (1991)

OLRB Rep. February 278. Pebra Peterborough Inc. (1987) OLRB Rep. March Retail Wholesale

Canada v. Sirch (2000) O.J. 501) it asks now that the detailed evidence provided by Ms.

Robertson, as it relates to the skills and qualifications of the candidates as well as all instances

where Ms. Robertson compared those skills to that of the grievor be excluded or be given little or

no weight in light of the Employer’s failure to particularize the testimony in advance.

65

Here, the Employer argued that this was not, procedurally or substantively, a case of ambush.

The Employer had not known Jason Little would testify until 3 days before. There was no bad

faith of the kind exhibited in Dough Delight. There was no consequence set out in the Board’s

direction. We accept this point to a degree, but that did not explain the failure to look for or

produce other documents in a timely way.

The difficult question in arbitration comes when there is a failure to comply with a direction. In the

Court system, there are defined pre-trial process, discovery or questioning, the ability to apply for

a Court Order, contempt remedies or costs. Arbitrators lack any such arsenal.

The variety of labour relation cases referred to above dealing with non-compliance show that the

choice of remedy must involve a balance between fairness and ensuring compliance with the

Board’s processes, and the search for truth. There is in this regard an obvious difference

between failing to produce reliance documents and failing to produce relevant documents sought

by the opposing side.

The Canadian Industrial Relations Board took a cautious stance over excluding relevant evidence

as a result of a failure to comply with its rules by identifying a witness to be called. A

reconsideration panel, reviewing the rejection of the witnesses’ evidence, made the following

observations.

[9] However, while there may have been some concern about the possibility of a deliberate

manipulation of the Board’s processes in the matter, given the number of items in respect of which

procedural concerns were raised in the union’s preliminary motion, the initial panel did not find that

there was in actual fact such manipulation and it appears on a reading of Rogers Radio (CJMX-

FM), supra, that it is more probable that the reason for the failure to identify the witness to be called

and to file the required will-say statement in a timely way was more due to inadequate foresight

than to an attempt on the part of counsel for Rogers to intentionally and deliberately distort the

Board’s processes to its advantage. At the same time, it is alleged by counsel for Rogers that the

ability of Rogers to present its case, and to answer the case against it, suffered prejudice because

the evidence of Mr. Forsyth was not heard by the panel. It is therefore of value to consider what

standards should apply to the hearing and exclusion of evidence …

Rogers Radio and Communications, Energy and Paperworkers Union [2003] CIRB 246 at para. 9

The panel reviewed the decision of Supreme Court of Canada in University of Trois Rivieres v.

Larocque [1993] 1 S.C.R. 471 and summarized:

[12] There are three important points to be taken from the above. The first is that the rejection of

relevant evidence is a serious matter, and while this may be done if considerations of law or policy

so require, it should not be done in a mechanical manner. The rules of natural justice must always

66

be considered. The decision to reject otherwise relevant evidence should be taken in a manner that

balances the statutory and regulatory context with the fundamental right of parties to advance

relevant evidence. The second point is that if the refused evidence is prima facie crucial in the

context of the issues being heard, such evidence should only be refused with particular care. The

third point is that the decision to refuse evidence should not be an arbitrary one in the context of the

matter being heard, but should be taken in a context that balances all of the relevant

considerations.

Rogers (supra) at para. 12

[15] In the view of the present panel, the statutory provision and the nature of the burden imposed

by it, combined with the seriousness of the alleged violation of the Code by the employer, raise

serious issues of a possible compromise of the hearing process itself, and of a violation of the rules

of natural justice, if the evidence of the witness in question is in fact relevant and is not considered.

It is apparent that the evidence sought to be introduced is logically probative of a central issue in

the cause. While it is true that the 2001 Regulations, if strictly applied, would prevent the trier of fact

from considering relevant facts, broader considerations, including the integrity of the hearing

process itself, should also receive attention. Prima facie, it appears there will be considerable risk

of comprising the fairness of the Board’s hearing process, given the reversal of onus, if the witness

in question is not heard.

[16] The reviewing panel is, therefore, of the view that great caution is merited in such

circumstances where the evidence being considered for exclusion is prima facie crucial and where

substantial prejudice is possible or apprehended. It is critical for Board panels to ensure that the

integrity of the hearing process is not compromised unless the possibility of prejudice is little or

minimal, the conduct of the party failing to comply with the Board 2001 Regulations is egregious

and significantly prejudices the possibility of a fair trial or hearing and no other remedy for the

breach of the 2001 Regulations is available. In the view of the reviewing panel, a systematic

analysis that considers all relevant factors should be made in circumstances where the evidence is

prima facie crucial and there is a possibility that there will be real prejudice to the integrity of the

hearing process by the exclusion of the evidence in question.

Rogers (supra) at paras. 15-16

The evidence adduced on the voir dire established that no significant effort was made to search

for or produce the materials it was agreed in March would be produced. Some of the documents

put forward on June 4^thwere rejected essentially for this reason, after balancing their importance

to the overall search for truth and the Union’s ability to establish its case. We accepted that up

until that point there was uncertainty as to whether Mr. Little would be called. The two

spreadsheets prepared by Mr. Cooksley provided an important response to Mr. Little’s evidence

over the 308 examples. Much more could and should have been done to ensure his analysis was

produced earlier, but the prejudice this had the potential to cause was mitigated by the additional

time available through the hearing schedule.

(c) Privilege

67

The parties addressed the questions of solicitor-client and litigation privilege. They referred us to

a series of cases both for arbitration and the Courts on its scope and its application to the duty of

disclosure. We accept that when it comes to solicitor-client privilege, the rules protecting the

solicitor-client relationship apply with the same scope and force.

See:

Bank of Montreal v. Stevenson (2008) Carswell Net 6756 (Springate) at para. 34

Bank of Montreal v. Sasso [2013] F.C. 584 at paras. 13-16

The Union argues that solicitor-client privilege has no application here because Mr. Sedgwick is

not Counsel’s client, nor its representative, only a witness. This is not true of Mr. Cooksley. It

relies on the A & P (supra) ruling at paragraph 15, coincidentally involving the same Employer

counsel as here.

15

Solicitor-client privilege is not really at issue here, because Mr. Hanson is not Mr. Levitt’s

client. Mr. Levitt’s client is the company, as represented by the people who are the company’s mind

and mouth for purposes of this case — these are Messrs P. Rucurean and R. Despres, and Ms M.

Byczok. Mr. Levitt’s confidential discussions with these three people are privileged: see Sopinka,

Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 635 and following, for a

lengthy discussion of this privilege.

The arbitrator then drew on the following description of the “work product rule”:

… the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer’s

preparation of his client’s case must not be inhibited by the possibility that the materials that he

prepares can be taken out of his file and presented to the court in a manner other than that

contemplated when they were prepared. What would aid in determining the truth when presented

in the manner contemplated by the solicitor who directed its preparation might well be used to

create a distortion of the truth to the prejudice of the client when presented by someone adverse in

interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip

into each other’s briefs by means of the discovery process, the straightforward preparation of cases

for trial would develop into a most unsatisfactory travesty of our present system.

What is important to note about both of these rules is that they do not afford a privilege against the

discovery of facts that are or may be relevant to the determination of the facts in issue. What is

privileged is the communications or working papers that came into existence by reason of the

desire to obtain a legal opinion or legal assistance in the one case and the materials created for the

lawyer’s brief in the other case. The facts or documents that happen to be reflected in such

communications or materials are not privileged from discovery if, otherwise, the party would be

bound to give discovery of them.

Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27 at pp. 33-4, D.T.C. 5278

(Exch. Ct.), per Mr. Justice Jackett)

68

Litigation privilege is a somewhat contextual concept, and the authorities provided in any event

show some diversity of the tests used. The parties also provided cases addressing when such

privilege is lost or waived, particularly where a witness has refreshed their memory from such

documents (see (d) below).

In the course of Mr. Cooksley and Mr. Sedgwick’s examination the Union sought production of

documents, which the Employer opposed arguing that it was protected by solicitor-client privilege

and on the basis that it was counsel’s work product. The Union relied on the decision in and the

cases referred to in:

Great Atlantic and Pacific Co. of Canada Ltd. and UFCW Locals 175 and 633 (1995) 47 L.A.C. (4^th)

59 (Samuels)

In that case, in a similarly long hearing a Company witness was on the stand. The arbitrator

described what happened as follows at para 9:

… counsel for the union was about to begin a line of questioning concerning what took place during

meetings (”briefing sessions”) Mr. Hanson attended with company counsel and the company’s

representatives. Counsel for the company objected to this line of questioning on the ground that it

dealt with matters which were privileged.

The arbitrator usefully analyzed the case for fundamental principles saying at paras. 11-12:

And this fundamental principle is referred to neatly by Mr. Justice Clement in Strass v. Goldsack

(1975), 58 D.L.R. (3d) 397 at p. 414, [1975] 6 W.W.R. 155 (Alta. C.A.):

...the ascertainment of truth in the administration of justice is a prime function of a Court,

whether constituted by a Judge and jury or by a Judge alone. When evidence is withheld,

the ascertainment of truth may be impeded in some measure, and justice may be led

astray.

12

My fundamental purpose is to determine the truth, in so far as that is possible. As Mr.

Justice Moir said in Strass v. Goldsack, at pp. 420-1:

... one must not forget that the object of litigation is to assist the Court in arriving at the

truth. In reaching the truth, and a just result, anything that stands in the way of justice

must be restricted...

Secondly, a trial is not a sporting event.

At paragraph 13 he quoted Wigmore’s four conditions for a privilege claim:

69

Looking back upon the principle of privilege, as an exception to the general liability of every person

to give testimony upon all facts inquired of in a court of justice, and keeping in view that

preponderance of extrinsic policy which alone can justify the recognition of any such exception ...

four fundamental conditions are recognized as necessary to the establishment of a privilege

against the disclosure of communications:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory

maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously

fostered.

(4) The injury that would inure to the relation by the disclosure of the communications

must be greater than the benefit thereby gained for the correct disposal of litigation.

Only if these four conditions are present should a privilege be recognized.

Litigation privilege (or “work product” privilege) was raised in a case involving the termination of a

transit police officer. The Employer had commissioned first an internal investigation and then an

external investigation which resulted in a further report, for use in the event the matter went

further. The Union sought pre-hearing disclosure. Arbitrator Sheehan relied on the following

statement of the law:

There are two key requirements for application of the litigation privilege. First the documents

whether they be statements notes or reports must have been prepared in contemplation of litigation

that is when litigation was pending or it was reasonable to expect litigation to ensue. Second the

documents must have been prepared for the purposes of such litigation and if they can be said to

have multiple purposes it must be shown that the dominant purpose for their creation was

preparation for litigation (See Liffey Custom Cuttings, supra at 11-12 and cases cited therein).

Central Park Lodges v. S.E.I.U. Local 210 (2001) 95 L.A.C. (4^th) 192 (Etherington)

The Union argued, on the evidence that there was another purpose to the withheld report which

was to examine the degree to which the Employer’s own workplace culture might be a cause for

concern, and that the dominant purpose test was not met. Further it argued, litigation privilege

does not extend to mere factual matters.

On the test for litigation privilege Arbitrator Sheehan ruled:

26 The Supreme Court of Canada in Blank v. Canada (Department of Justice), supra, conclusively

decided that the appropriate test to be adopted with respect to the applicability of litigation privilege

is the “dominant purpose” test. In affirming that that test should be preferred over the broader

“substantial purpose” test, Fish J., on behalf of the Court, referenced the judicial trend to encourage

increased disclosure:

I see no reason to depart from the dominant purpose test. Though it provides narrower

protection than would a substantial purpose test, the dominant purpose standard appears

70

to me consistent with the notion that the litigation privilege should be viewed as a limited

exception to the principle of full disclosure and not as an equal partner of the broadly

interpreted solicitor-client privilege. The dominant purpose test is more compatible with

the contemporary trend favouring increased disclosure.

Toronto Transit Commission and CUPE Local 5089 (2014) 243 L.A.C. (4^th) 79 (Sheehan) at para.

26

Arbitrator Sheehan considered several cases over the extent to which factual information,

acquired for potential use in a grievance, could be protected by litigation privilege. On this he

took the broader view, supported by the ruling in:

Budget Rent-A-Car v. Teamsters Local 213 (2003) 119 L.A.C. (4^th) 380 (Moore)

and by the following extract:

The Court approved Professor Sharpe’s comment that documents would be protected as having

been made in contemplation of litigation where they had been made “either for the purpose of

obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of

obtaining information which might lead to the obtaining of such evidence.”

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co., [2000] N.S.J. No. 258 (N.S.C.A.)

Turning to Court decisions, several cases referred to the following opinion:

Rationale for Litigation Privilege

Relating litigation privilege to the needs os the adversary process is necessary to arrive at an

understanding of its content and effect. The effect of a rule of privilege is to shut out the truth, but

the process which litigation privilege is aimed to protect – the adversary process – among other

things, attempts to get at the truth. There are, then, competing interests to be considered when a

claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial

preparation; there is also the need for disclosure to foster fair trial.

R.J. Sharp, “Claiming Privilege in the Discovery Process” in Law in Transition: Evidence, L.S.U.C.

Special Lectures (Toronto: De Boo, 1984). Quoted in General Accident (infra) at para. 23

See also:

Edmonton (City) v. Lovat Tunnel Equipment [2000] A.R. 245 (Alta. Q.B., Lee. J.) at paras. 33-35

International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd. [2006] B.C.S.C. 2009

(B.C.S.C. Balance, J.) at para. 6

McLean v. McLean [2009] 176 A.C.W.S. (3d) 1041 (N.S.S.C., MacDonald, J.) at paras. 4-6

The Board allowed the use of the memorandum describing the areas of evidence where the

witness disagreed with Mr. Little’s testimony. Whether or not initially privileged, any such

privilege was waived once it was established that it had been used to refresh his memory. The

Board also allowed the use of the corrected spreadsheet. In the Board’s view the interests in

determining the truth of how much work was done by contractors in the 308 cases identified by

Mr. Little was important to a fair disposition of the case.

Again, we note that these evidentiary matters were dealt with during the course of the hearing.

Decision

For the reasons given above the majority dismisses the grievance. Mr. Sahota dissents as he is

of the view that Article 6.06 applies to this situation as a “reduction in the workforce” and therefore

in his view, contractors should have been terminated first and then the other employees laid off in

order of seniority amongst all the technical employees working at the time. He is of the view that

Article 10 cannot “trump” the rights, given generally, by Article 6.06.

DATED at Edmonton, Alberta this 11^thday of January, 2022.

ANDREW C.L. SIMS, Q.C.