Reasons for Decision
Page: 25 of 45
[97] This is the case with clause 44.08. On its face, there is a potential ambiguity
about the meaning of the words “employees who perform … MG … duties”. Are MG
duties defined somewhere? Does one have to occupy an MG position to perform MG
duties? Or can MG duties be performed by employees other than those classified MG?
And why does the French version of the clause refer to the performance of duties of a
position classified MG, while the clause in English refers only to the performance of
MG duties?
[98] Even if I were to eventually find the words of clause 44.08 unambiguous, I told
the parties that I would allow the calling of extrinsic evidence, following the principles
set out in Sault Ste. Marie, at para. 46, as follows:
46. It appears to me that the Sattva, Dumbrell, Air Canada
approach to the admissibility of factual circumstances
(context/factual matrix) is attractive because it is practical, direct,
and makes common sense for many of the reasons explored in
University of British Columbia. While outcomes may not differ
from what might be expected from a traditional Leitch approach,
the analysis is not encumbered by any formal necessity to first
demonstrate ‘ambiguity’, or some sufficiency of ambiguity, as a
precondition to the admission of otherwise illuminating evidence.
While the words used by the parties to express their intention
should retain presumptive prominence, context should not be
ignored. That context may involve such matters as how particular
words should be specially understood in a particular industry or
setting, bargaining history, and the practice of parties in the
implementation or application of the particular clause in question.
[99] I note that in many collective agreement or policy grievance disputes before this
Board, one party or the other has sought to introduce extrinsic evidence. Sometimes, it
is the bargaining agent (Professional Institute of the Public Service of Canada v. National
Research Council of Canada, 2013 PSLRB 88, Union of Canadian Correctional Officers -
Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2016 PSLREB
47, Public Service Alliance of Canada v. Treasury Board (Department of Citizenship and
Immigration), 2018 FPSLREB 74, Federal Government Dockyards Trades and Labour
Council (Esquimalt, B.C.) v. Treasury Board, 2019 FPSLREB 80, Professional Institute of
the Public Service of Canada v. Treasury Board, 2019 FPSLREB 112, Myles v. Canada
Revenue Agency, 2020 FPSLREB 49, and Professional Institute of the Public Service of
Canada v. Canadian Food Inspection Agency, 2020 FPSLREB 69). In others, it is the
responding employer (PIPSC Personal Leave Policy Grievance, Fehr v. Canada Revenue
Agency, 2017 FPSLREB 17, Valderrama v. Deputy Head (Department of Foreign Affairs,
Federal Public Sector Labour Relations and Employment Board Act and
Federal Public Sector Labour Relations Act