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 9th. 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 8th letters provided for immediate  
layoffs and the others for a staged process as of December 9th. 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 12th,  
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 taskbasis 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.  
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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  
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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. (4th) 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. (4th) 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, (5th Edition) 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. (4th) 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. (4th) 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. (4th) 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. (4th) 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. (4th) 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. (4th) 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.  
(4th) 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. (4th) 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:  
14  
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  
15  
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 clientsown  
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 customerscomputer  
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  
16  
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 headendwhere 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.  
17  
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.  
18  
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.  
19  
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.  
20  
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  
21  
time, extending the customerstime 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 runswhich 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.  
22  
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
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 8th announcement.  
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  
25  
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  
businessesown computer systems and network. This required Shaw’s installers to remain  
26  
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. Roydssaid 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 members 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 2nd added 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 abilityprovision 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. Gibsons 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 5th, 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  
installationsituation 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. (4th) 363 (Brent)  
See also:  
Toronto East General Hospital v. O.P.S.E.U. (Pang) (2009) 183 L.A.C. (4th) 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.  
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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  
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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 3rd Employer 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  
26th through January 31st. 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 8th. 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 3rd contractor on  
the list in #1 for Nov 9, 2016 to date. Arrange the contractors on the list alphabetically and provide  
the documents for the 1st, 4th, 7th, 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 14th and March 16th. 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 tim