Date: 20220623  
File: 569-34-40834  
Citation: 2022 FPSLREB 54  
Federal Public Sector  
Labour Relations and  
Employment Board Act and  
Federal Public Sector  
Labour Relations Act  
Before a panel of the  
Federal Public Sector  
Labour Relations and  
Employment Board  
BETWEEN  
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA  
Bargaining Agent  
and  
CANADA REVENUE AGENCY  
Employer  
Indexed as  
Professional Institute of the Public Service of Canada v. Canada Revenue Agency  
In the matter of a policy grievance referred to adjudication  
Before:  
David Orfald, a panel of the Federal Public Sector Labour Relations and  
Employment Board  
For the Bargaining Agent:  
Tony Micallef-Jones and Cheryl Owens-Carr,  
Professional Institute of the Public Service of Canada  
For the Employer:  
Jena Montgomery, counsel, and Angela Bain, articling student  
Heard by videoconference,  
March 1 to 3 and April 11 and 12, 2022.  
Reasons for Decision  
Page: 1 of 45  
REASONS FOR DECISION  
I. Policy grievance referred to adjudication  
[1] This policy grievance addresses the question of which employees are entitled to  
receive a particular form of performance pay at the Canada Revenue Agency (the  
CRAor the Agency).  
[2]  
The policy grievance was presented to the CRA by the Professional Institute of  
the Public Service of Canada (PIPSCor the union) on March 21, 2019. After the CRA  
denied the grievance, PIPSC referred it to adjudication on August 14, 2019.  
[3]  
The clause in dispute is contained in the collective agreement between PIPSC  
and the CRA for the Audit, Financial and Scientific (AFS) bargaining unit, signed March  
29, 2018, with an expiry date of December 21, 2018 (the 2018 AFS collective  
agreement). Clause 44.08 in found within the article titled Pay Administration”  
(article 44) and reads as follows in both English and French:  
44.08 Performance bonus  
44.08 Prime de performance –  
Management Group  
Groupe de gestion  
(a) At the discretion of the Employer, a) À la discrétion de lEmployeur, les  
employees who perform  
employés qui effectuent les tâches  
dun poste classifié dans le Groupe  
de Gestion (MG) au cours de la  
période annuelle de révision seront  
éligibles, selon les conditions établies  
par lEmployeur, à recevoir une  
Management Group (MG) duties  
during the annual performance  
review period, shall be eligible,  
subject to the conditions established  
by the Employer, to receive a lump-  
sum performance bonus of up to five prime de performance sous la forme  
percent (5%) of the employees salary dun montant forfaitaire pouvant  
of his or her substantive position on  
the last day of the annual  
performance period.  
atteindre jusquà cinq pour cent (5  
%) du salaire de la position  
substantive détenue le dernier jour  
de la période annuelle dévaluation  
de rendement.  
(b) The lump-sum performance  
bonus awarded to employees under  
this clause shall not form part of  
salary.  
b) Le montant forfaitaire prévu au  
présent paragraphe et remis aux  
employés en guise de prime de  
performance ne fait pas partie de  
leur salaire.  
[4]  
The focus of the dispute is the meaning of the eligibility criteria in clause 44.08,  
specifically that portion of the clause in English that references “… employees who  
perform Management Group (MG) duties …”.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 2 of 45  
[5] The CRA has a unique classification standard applicable to some of its  
management employees called the Management Group (the MG group). Some  
employees classified MG are found within the AFS group represented by PIPSC. The  
AFS group also includes employees classified under the Audit classification standard  
(AU), the Computer Systems classification standard (CS), and as many as 12 other  
standards.  
[6]  
Parenthetically, some CRA employees classified MG are also found in the  
Program and Delivery Services bargaining unit represented by the Public Service  
Alliance of Canada (PSAC), and some employees classified MG are excluded from  
collective bargaining altogether.  
[7]  
Earlier versions of clause 44.08 can be found in collective agreements between  
the parties going back to as early as 2001. In this decision, the term performance  
bonus clauseis used generically to refer to clause 44.08 and earlier versions of it, as  
the numbering system has changed over the years.  
[8]  
PIPSCs grievance challenges the long-standing interpretation given to clause  
44.08 by the Agency, which is that employees must occupy a position in the MG group,  
on either an indeterminate or an acting basis, to be eligible for the performance bonus.  
[9]  
PIPSC argued that the plain language of the collective agreement does not  
require employees to occupy an MG position; it only requires them to perform  
Management Group (MG) duties. It argued that other employees (such as those  
classified AU or CS) should be eligible to receive performance pay if they can establish  
that they have performed MG duties.  
[10] Thus, the key issue in this matter is to determine what the parties meant when  
they negotiated the wording of clause 44.08. It turns significantly on the question of  
what it means to perform Management Group (MG) duties. Did the parties intend that  
the clause would apply only to employees occupying an MG position? Or did they  
intend that the words should apply to any employee, including those who do not  
occupy an MG position on either an indeterminate or acting basis?  
[11] As will be seen in the reasons that follow, to a very large extent, the parties  
agreed on the principles of collective agreement interpretation to be applied in  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 3 of 45  
deciding this grievance. However, they took opposing views on the question of whether  
I should allow them to call extrinsic evidence related to the grievance.  
[12] PIPSC argued that there is no ambiguity in the wording of clause 44.08 and that  
I should be able to decide the grievance without hearing any evidence.  
[13] The CRA also argued that the wording of clause 44.08 is unambiguous, but it  
said that the Federal Public Sector Labour Relations and Employment Board (“the  
Board”) should hear evidence that provides context to how the clause was negotiated  
and how it has been applied. Alternatively, should the Board find the wording of the  
clause ambiguous, then the hearing of extrinsic evidence is required to determine the  
intentions of the parties when they negotiated the clause, it argued.  
[14] This was not merely a question about the principles of collective agreement  
interpretation but one affecting the duration of the hearing. Therefore, at the  
commencement of the hearing, I asked the parties to provide their arguments on  
whether the Board should hear extrinsic evidence.  
[15] After reviewing those opening arguments, I determined that I would allow the  
parties to call extrinsic evidence. I provided them with an oral summary of my reasons,  
which I have elaborated in the reasons that follow. I also told the parties that in their  
closings, I would welcome their arguments on what extrinsic evidence, if any, was  
relevant to my interpretation of the clause in question.  
[16] My conclusion is that the language of clause 44.08 is to be interpreted in the  
way applied by the CRA. In other words, I find that to perform MG duties, as described  
in the clause, an employee has to occupy an MG position. This ruling considers the  
wording of the clause in both English and French, the wording of the collective  
agreement as a whole, relevant evidence about the negotiation of the clause when it  
first was included in the collective agreement in 2002, relevant evidence as to how it  
has since been applied, and relevant evidence about the way in which the classification  
system at the CRA operates. As such, the grievance is denied.  
[17] I will note that in these reasons for decision, references to the Boardinclude  
the Federal Public Sector Labour Relations and Employment Board and its  
predecessors.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 4 of 45  
II. Summary of the evidence  
A. Introduction  
[18] The summary of evidence that follows is based on witness testimony and  
documents entered as exhibits. Facts not in dispute are summarized without  
referencing the source. For any conflict in the evidence, I make specific reference to  
what I heard from different witnesses.  
[19] It should be noted that when the Department of National Revenue was first  
given status as a separate agency, on November 1, 1999, it was called the Canada  
Customs and Revenue Agency (CCRA). Its name changed to the Canada Revenue  
Agency in December of 2003, when the customs portion of the CCRA was transferred  
to the Canada Border Services Agency. References in this decision to the CRA or the  
Agency will generally include the CCRA. In my introductions of the witnesses, time  
worked at the CRA includes the total time worked at the Department of National  
Revenue, the CCRA, and the CRA.  
[20] PIPSC called a total of 7 witnesses. Their backgrounds are as follows:  
Réal Lamarche worked as a tax auditor (AU classification) at the CRA for more  
than 30 years before his retirement in June of 2007. With PIPSC, he served as  
the chair of the AFS group (PIPSCs internal structure for members of the AFS  
bargaining unit) from approximately 1999 until 2006. Mr. Lamarche testified  
primarily about his involvement in the collective bargaining process.  
Shawn Gillis started working as a tax auditor for the CRA (AU classification) in  
1997. With PIPSC, he joined the AFS group executive in approximately 2015  
and served as a member of the bargaining committee. Mr. Gillis testified  
primarily about his involvement in the collective bargaining process after  
2015.  
Mark Muench has worked in information technology (CS classification) at the  
CRA since 1997. With PIPSC, he is currently on the executive of the AFS group,  
serves as a union steward, and represents it on a joint union-management  
committee on performance management. Mr. Muench testified primarily about  
the performance management process and his involvement in collective  
bargaining after 2018.  
Jamie Dunn was a full-time PIPSC employee from 2003 to 2015 and is  
currently a part-time employment relations officer there. He was the lead  
negotiator for the AFS group from 2009 to 2015 and again on contract for a  
short period in 2016. Mr. Dunn testified primarily about his involvement in  
collective bargaining for the AFS group.  
Tawfik Said is employed as a classification officer with PIPSC. He previously  
worked as a research officer and was involved in bargaining for one AFS  
collective agreement in 2012. Mr. Said testified primarily about the MG  
classification standard and the classification process.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 5 of 45  
Claira Mark started working as a tax auditor in 1992. She worked at the MG-5  
level from approximately 2011 to 2015. In 2016, as a result of a workforce  
adjustment (WFA) process, she was reclassified to an AU-4 position of  
International and Large Business Case Manager (ILBCM). As of the hearing, she  
occupied an AU-6 ILBCM position. Ms. Mark testified primarily about the  
duties she performed in both the MG and AU classifications.  
Jon Eckler has worked as a tax auditor for more than 30 years. As of the  
hearing, he occupied an AU-6 ILBCM position. Before 2016, he acted in MG  
positions several times. Mr. Eckler testified primarily about the duties he  
performed in both the MG and AU classifications.  
[21] The CRA called two witnesses. Their backgrounds are as follows:  
Peter Cenne started working at the CRA in 2000 as its lead negotiator and later  
served as its director of labour relations for several years, retiring from that  
position in 2016. Mr. Cenne testified primarily about the creation of the MG  
group and his role in collective bargaining between 2000 and 2016.  
Simon Teather joined the CRA in 2002 and works as a senior policy and  
programs analyst in the Agencys organizational design and classification  
division. Mr. Teather testified primarily about the MG and AU classification  
standards and the classification process at the CRA.  
[22] Documents submitted by PIPSC that were entered into evidence comprised 7  
volumes in 32 tabs and included job descriptions, organizational charts, classification  
standards, a variety of emails, some individual and group grievance presentations and  
replies, and a few other documents. All the unions documents were entered on  
consent.  
[23] Documents submitted by the Agency that were entered into evidence include 7  
collective agreements in English, 7 in French, many versions of the Agency’s guidelines  
or procedures on performance pay, a variety of emails, and a few other documents.  
This comprised 5 volumes in 48 tabs; the majority were entered on consent.  
B. The certification process, and the commencement of collective bargaining  
[24] Employees who transferred from the former Department of National Revenue to  
the Agency on November 1, 1999, enjoyed successor-rights protection under what was  
then called the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), which was later  
replaced by the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; now named  
the Federal Public Sector Labour Relations Act (the Act).  
[25] Mr. Cenne testified that when he was first hired as a negotiator in the year 2000,  
he helped the Agency prepare for the certification process and collective bargaining.  
He testified that the Agency wanted to create a distinct occupational group and  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 6 of 45  
bargaining unit called the Management Group. The Agency’s bargaining unit proposals  
and those of the different bargaining agents were argued before the (then) Public  
Service Staff Relations Board (PSSRB).  
[26] On December 12, 2001, the PSSRB released its decision on the establishment of  
new bargaining units at the CCRA (Canada Customs & Revenue Agency v. APSFA, 2001  
CarswellNat 3971; CCRA v. APSFA). It denied the Agencys application for a separate  
bargaining unit for the management group, including team leaders(at paragraphs  
521 to 525). It also rejected a proposal made by PIPSC for a separate bargaining unit of  
computer systems employees (see paragraph 544), including them within the AFS  
bargaining unit it established, which PIPSC was certified to represent (see paragraph  
546).  
[27] The PSSRB’s decision also established what it called the Program Delivery and  
Administrative Services bargaining unit and certified the PSAC as the bargaining agent  
for it. This bargaining unit is now referred to generally (and in the reasons that follow)  
as the Service and Program Group (PSAC-SP).  
[28] Of relevance to the issue in this grievance, the implication of the PSSRBs  
decision in CCRA v. APSFA was that team leaders of AFS employees would be included  
within the AFS bargaining unit represented by PIPSC and that team leaders of PSAC-SP  
employees would be included within the PSAC-SP bargaining unit (see paragraphs 524  
and 525).  
[29] Despite the PSSRBs decision, the CCRA proceeded to create a distinct  
classification standard for the MG group and to reclassify employees into it from the  
two bargaining units created by the PSSRB. Consequently, employees classified MG are  
now found in both the PIPSC and PSAC bargaining units.  
[30] The Agency converted certain employees to the MG classification standard  
effective March 31, 2002.  
C. The evolution of the performance bonus clause  
[31] Before the release of the PSSRB’s decision, the Agency had concluded a first  
collective agreement with PIPSC for employees classified CS. That agreement was  
signed on August 10, 2001, with an expiry date of April 30, 2002 (the 2001 CS  
collective agreement). That collective agreement included a new article (designated as  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 7 of 45  
such by the two asterisks preceding it), which read as follows in both English and  
French:  
[]  
**Article 48  
**Article 48  
PERFORMANCE BONUS –  
PRIME DE PERFORMANCE –  
MANAGEMENT GROUP  
GROUPE DE GESTION  
48.01 At the discretion of the  
Employer, employees who perform  
the duties of a position classified  
within the Management Group  
(MG) during the annual review  
period, shall be eligible, subject to  
the conditions established by the  
Employer, to receive a lump-sum  
performance bonus of up to five  
percent (5%) of the employees [sic]  
MG salary.  
48.01 À la discrétion de lEmployeur,  
les employés qui effectuent les  
tâches dun poste classifié dans le  
Groupe de Gestion (MG) au cours  
de la période annuelle de révision,  
seront éligibles, selon les conditions  
établies par lEmployeur, à recevoir  
une prime de performance sous la  
forme dun montant forfaitaire  
pouvant atteindre jusquà cinq pour  
cent (5 %) du leur salaire MG.  
48.02 The lump-sum performance  
bonus awarded to employees under  
this Article shall not form part of  
salary.  
48.02 Le montant forfaitaire prévu  
au présent paragraphe et remis aux  
employés en guise de prime de  
performance ne fait pas partie de  
leur salaire.  
[]  
[Emphasis added]  
[32] Mr. Cenne testified that this article was included in the 2001 CS collective  
agreement on a provisional basis. At the time that agreement was signed, the MG  
classification had not yet been finalized or populated.  
[33] After the PSSRB’s decision was released in December 2001, the Agency and  
PIPSC proceeded to negotiate a first collective agreement for the new AFS bargaining  
unit. On June 13, 2002, the parties signed a memorandum of settlement agreeing to  
enter into a new collective agreement, pending ratification by their respective  
principals (the June 2002 tentative agreement). The tentative agreement established  
new pay rates for the MG group effective March 31, 2002, and contained the following  
provision (note that only an English version of this document was tendered):  
New XX..XX, Performance bonus-management group (MG):  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 8 of 45  
Add a new article which provides that: at the discretion of the  
Employer, employees who perform the duties of a position  
classified within the Management Group (MG) during the annual  
review period, shall be eligible, subject to the conditions established  
by the Employer, to receive a lump-sum performance bonus of up  
to five percent (5%) of the employees [sic] MG salary. This lump-  
sum performance bonus awarded to employees under this Article  
shall not form part of salary.  
[Emphasis added]  
[34] The tentative agreement was ratified, and the parties signed the resulting  
collective agreement on July 22, 2002, with an expiry date of December 21, 2003 (the  
2002 AFS collective agreement). The collective agreement contained the following  
clause, found within the Pay Administration article, reproduced in both English and  
French:  
[]  
45.08 Performance Bonus –  
45.08 Prime de performance –  
Management Group  
Groupe de gestion  
(a) Starting with the performance  
review period 2001 - 2002, at the  
discretion of the Employer,  
a) Débutant avec la période  
dévaluation de rendement 2001-  
2002 et à la discrétion de  
employees who perform  
lEmployeur, les employés qui  
effectuent les tâches dun poste  
classifié dans le Groupe de Gestion  
(MG) au cours de la période  
annuelle de révision seront éligibles,  
selon les conditions établies par  
Management Group (MG) duties  
during the annual performance  
review period, shall be eligible,  
subject to the conditions established  
by the Employer, to receive a lump-  
sum performance bonus of up to five lEmployeur, à recevoir une prime de  
percent (5%) of the employees salary performance sous la forme dun  
of his/her substantive position on  
the last day of the annual  
performance period.  
montant forfaitaire pouvant  
atteindre jusquà cinq pourcent [sic]  
(5 %) du salaire de la position  
substantive détenue le dernier jour  
de la période annuelle dévaluation  
de rendement.  
(b) The lump-sum performance  
bonus awarded to employees under  
this clause shall not form part of  
salary.  
b) Le montant forfaitaire prévu au  
présent paragraphe et remis aux  
employés en guise de prime de  
performance ne fait pas partie de  
leur salaire.  
[]  
[Emphasis added]  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 9 of 45  
[35] Mr. Cenne testified that the Agency negotiated a similar provision with the PSAC  
for MG employees in the PSAC-SP bargaining unit. However, rather than performance  
pay, the agreement with the PSAC resulted in a performance leaveprovision. He said  
that the purpose was the same: to reward effective people management.  
[36] A second collective agreement between the parties for the AFS bargaining unit  
was signed on August 22, 2005, with an expiry date of December 21, 2007 (the 2005  
AFS collective agreement). This collective agreement contained the following clause  
45.08, found within the article on Pay Administration, and reproduced in both English  
and French:  
45.08 Performance Bonus –  
45.08 Prime de performance –  
Management Group  
Groupe de gestion  
(a) At the discretion of the Employer, a) À la discrétion de lEmployeur, les  
employees who perform  
employés qui effectuent les tâches  
dun poste classifié dans le Groupe  
de Gestion (MG) au cours de la  
période annuelle de révision seront  
éligibles, selon les conditions établies  
par lEmployeur, à recevoir une  
Management Group (MG) duties  
during the annual performance  
review period, shall be eligible,  
subject to the conditions established  
by the Employer, to receive a lump-  
sum performance bonus of up to five prime de performance sous la forme  
percent (5%) of the employees salary dun montant forfaitaire pouvant  
of his/her substantive position on  
the last day of the annual  
performance period.  
atteindre jusquà cinq pourcent [sic]  
(5%) du salaire de la position  
substantive détenue le dernier jour  
de la période annuelle dévaluation  
de rendement.  
(b) The lump-sum performance  
bonus awarded to employees under  
this clause shall not form part of  
salary.  
b) Le montant forfaitaire prévu au  
présent paragraphe et remis aux  
employés en guise de prime de  
performance ne fait pas partie de  
leur salaire.  
[Emphasis added]  
[37] Subsequently, the parties reached four more collective agreements for the AFS  
bargaining unit:  
Signed on November 6, 2009, with an expiry date of December 21, 2011 (the  
2009 AFS collective agreement).  
Signed on July 10, 2012, with an expiry date of December 21, 2014 (the 2012  
AFS collective agreement).  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 10 of 45  
Signed on March 29, 2018, with an expiry date of December 21, 2018 (the  
2018 AFS collective agreement). This is the collective agreement in effect  
when this policy grievance was filed.  
Signed on August 23, 2019, with an expiry date of December 21, 2022 (the  
2019 AFS collective agreement).  
[38] It is not disputed between the parties that the performance bonus clause was  
renewed without change in each of the collective agreements following the 2005 AFS  
collective agreement, except that starting with the 2009 AFS collective agreement, a  
general renumbering of the articles resulted in the clause being renumbered from  
45.08 to 44.08.  
[39] In this grievance, the key words in dispute are those setting out the eligibility  
criteria for the performance pay. At this stage, I wish to note the following points of  
distinction between the versions of eligibility criteria used by the parties in the  
different collective agreements, which were emphasized earlier in this decision:  
In the 2001 CS collective agreement, the English version used the words “…  
employees who perform the duties of a position classified within the  
Management Group (MG) …”.  
This same wording was used in the June 2002 tentative agreement for the AFS  
group.  
However, in the 2002 AFS collective agreement, the English version read “…  
employees who perform Management Group (MG) duties …”. In other words,  
the clause no longer contained the words “… the duties of a position classified  
within …”.  
All subsequent English collective agreements also do not contain the words “…  
the duties of a position classified within …”.  
In contrast, the French version of 2001 CS collective agreement used the words  
“… employés qui effectuent les tâches dun poste classifié dans le Groupe de  
Gestion (MG) …”, and those same words were used in the French version of the  
2002 AFS collective agreement and in all subsequent collective agreements.  
[40] I will also note two other language changes of note as the clause evolved:  
The 2002 AFS collective agreement version of the clause opened with the  
words, Starting with the performance review period 2001 - 2002 …” (and  
their equivalent in French); those words were not used in the preceding 2001  
CS collective agreement or in the subsequent 2005 AFS collective agreement.  
In the 2001 CS collective agreement and the June 2002 tentative agreement,  
the performance bonus was to be calculated based on up to 5% of the  
employees MG salary; in the 2002 AFS collective agreement and all  
subsequent agreements, the bonus was to be calculated based on “… up to five  
percent (5%) of the employees salary of his/her substantive position on the  
last day of the annual performance period[emphasis added].  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 11 of 45  
D. The negotiations leading to the 2002 and 2005 AFS collective agreements  
[41] Mr. Cenne testified in more detail about the negotiations that led to the wording  
in the performance bonus clauses. He was chief negotiator for the Agency for both the  
2001 CS collective agreement and the 2002 and 2005 AFS collective agreements and a  
signatory to all three.  
[42] Mr. Cenne testified that the Agencys Board of Management wanted to create the  
MG group to emphasize the importance of people management. He said that the idea  
behind the MG performance bonus was to reward effective people management. He  
said that the performance bonus clause was included in the 2001 CS collective  
agreement on a provisional basis, to let employees know what the Agency was  
intending for the MG group. The clause did not come into force during the term of that  
collective agreement because the MG standard had not been activated, and no  
employees had been converted to the MG group.  
[43] Once the PSSRB’s decision was released in December 2001, Mr. Cenne began  
negotiations with PIPSC for a collective agreement for the new AFS group. He testified  
that he made the proposal for the MG performance bonus. He stated that in his  
presentations to the PIPSC bargaining team, he presented the bonus as a way of  
reinforcing the role of the new MG classification, to encourage MG employees to  
exercise good people management skills by rewarding them. He stated that he made it  
clear that the clause applied only to the MG group and to no other employees.  
[44] Explaining the difference between the wording in the English versions of the  
June 2002 tentative agreement and the 2002 AFS collective agreement, Mr. Cenne  
testified that the Agency wanted the clause to apply for the entire 2001-2002 fiscal  
year period, even though the MG group was populated only on March 31, 2002. He said  
that is why the performance bonus clause in the 2002 AFS collective agreement opened  
with the words, Starting with the performance review period 2001 - 2002 …”, and why  
the parties settled on the language “… employees who perform Management Group  
(MG) duties during the annual performance review period …”.  
[45] Mr. Cenne said that those words were chosen so that all employees converted to  
the MG group on March 31, 2002, would be eligible for the bonus for the entire 2001-  
2002 performance review period, because even though employees knew in advance  
that they would be converted to the MG group, their conversion became official only  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 12 of 45  
on March 31, 2002. The Agency wanted the clause to apply retroactively to the entire  
fiscal year. He said that the parties did not use the word classifiedin the English  
version of the collective agreement because they did not want the language to be  
interpreted in such a way that employees might receive the bonus only for the one day  
that they were actually classified MG. Mr. Cenne also testified that the wording of the  
clause was designed to ensure that employees acting in an MG position, as well as  
indeterminate MG employees, would be eligible for the bonus.  
[46] Mr. Cenne testified that in negotiations for the 2005 AFS collective agreement,  
the parties agreed to remove the references to the 2001-2002 performance review  
period, as they were no longer needed.  
[47] Mr. Cenne was asked why the French-language version of the clause refers to  
positions classified MG, as it reads “… employés qui effectuent les tâches dun poste  
classifié dans le Groupe de Gestion (MG) …”. He stated that the French version of the  
clause used in the 2002 AFS collective agreement appears to reflect the language used  
in the 2001 CS collective agreement. He testified that the parties negotiated the 2002  
AFS collective agreement in English and that the parties should have amended the  
French version to reflect the English version. He stated that the French wording of the  
clause could have prevented some MGs from receiving the bonus. He described the  
difference between the English and French versions as an oversight. He said that the  
parties should have amended it to ensure that all MG employees, including those in  
positions on an acting basis, would be eligible.  
[48] Of the witnesses called by PIPSC, only Mr. Lamarche testified about the  
negotiations that led to the June 2002 tentative agreement and the signing of the 2002  
and 2005 AFS collective agreements. As chair of the AFS group, he was also the chair  
of the PIPSC bargaining teams and a signatory to both agreements.  
[49] Mr. Lamarche testified that during the negotiations for the first AFS agreement,  
PIPSC initially refused to agree to the performance bonus clause because it wanted  
money for the bargaining unit as a whole. It did not want to agree to a provision that  
covered only a small portion of the bargaining unit. He recalled Mr. Cenne making  
presentations on the clause but did not recall hearing that only MG employees would  
be eligible. He said that he did not listen very carefully because the team did not  
support the provision; the PIPSC bargaining team agreed to accept the new clause only  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 13 of 45  
toward the end of negotiations, after it was satisfied with the agreement for the  
bargaining unit as a whole.  
[50] As for the differences in language between the June 2002 tentative agreement  
and the 2002 AFS collective agreement, Mr. Lamarche testified that the tentative  
agreement was probably prepared the night before it was signed, while the collective  
agreement language would have reflected the agreement between the parties. As for  
the difference between the English and French versions of the collective agreement, he  
recognized a difference between the two wordings. He testified that the parties  
negotiated in English and that apparently, they did not compare the two versions.  
[51] Mr. Lamarche remained chair of the AFS group for the negotiations of the 2005  
AFS collective agreement. He did not recall any discussion of the clause other than the  
removal of the transitional language at the start of clause. In cross-examination, he  
acknowledged that he was aware that the Agency had developed guidelines about the  
application of the performance bonus, which focused on employees in the MG group.  
However, he denied that PIPSC accepted that the clause applied only to MGs; the words  
chosen provided that any employee performing MG duties was eligible. He said that  
PIPSC did not feel a need to propose a change to the clause because it was happy with  
the wording.  
E. Subsequent bargaining, and the performance management clause  
[52] After the 2005 collective agreement was signed, Mr. Cenne became the director  
of labour relations. He was no longer the chief negotiator but oversaw bargaining and  
until he retired in 2016, was directly involved in preparing the mandate given to the  
Agencys chief negotiator. He was also responsible for the administration of the  
collective agreement and for providing direction to managers on its interpretation. He  
testified that his understanding was that the clause applied only to employees in an  
MG position on an indeterminate or acting basis. During his time at the Agency, he  
could not recall any conversations, either at the bargaining table or otherwise, in which  
PIPSC challenged that interpretation. During the 2009 and 2012 rounds of bargaining,  
Mr. Cenne testified that the clause was renewed without much discussion.  
[53] Mr. Cenne testified that if the clause were broadened to include non-MG  
employees, it would undermine one of the major reasons for the creation of the MG  
group. He also suggested that if the clause were to apply to non-MG employees, it  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 14 of 45  
would have a significant cost. He said that the CRA does not have a budget to cover the  
application of this clause to non-MGs.  
[54] Mr. Dunn testified about his involvement as chief negotiator for PIPSC in  
bargaining for the AFS collective agreements signed in 2009 and 2012, to which he was  
a signatory. He also testified about his role in a week of bargaining in 2016 for what  
would eventually become the 2018 AFS collective agreement, to which he was not a  
signatory. He did not recall any discussions at the bargaining table about the  
performance bonus clause. He testified that PIPSC did not make proposals to change it.  
[55] In cross-examination, Mr. Dunn was asked if he understood that the clause  
applied only to MG employees and answered, “No.He was also asked if he ever heard  
complaints that the clause only applied to MGs and answered “No.He explained that  
as a negotiator, he would normally not be directly involved in the administration of the  
collective agreement, as that is normally handled by employment relations officers at  
PIPSC.  
[56] Mr. Muench and Mr. Gillis testified about their roles in collective bargaining  
during negotiations for the 2018 and 2019 AFS collective agreements. Both sat on the  
AFS group executive and as members of the PIPSC bargaining team, Mr. Muench as a  
CS, and Mr. Gillis as an AU.  
[57] During his testimony, Mr. Muench testified about an exchange of emails he had  
in June of 2017 with a human resources representative of the Agency. In the email, he  
asked why the Agency budgets only 3.25% of salary for the performance bonuses,  
while employees can receive up to 5%. He was told that employees in the MG group are  
eligible to receive between 0 and 5% and that 3.25% had proven to be a representative  
figure for budgeting. He said that he had written the email on behalf of an MG-6  
employee who was concerned that the 3.25% figure was being applied as a cap because  
the employee felt deserving of the full 5%.  
[58] Starting in 2018, Mr. Muench served as a representative of the AFS group on a  
union-management committee to discuss changes to the performance review process.  
He did not recall any discussions about eligibility for the performance bonus; the focus  
of the consultation was on the performance review process. He did not raise any  
concerns about eligibility for the bonus in the consultation process; he testified that he  
thought that the appropriate place to discuss eligibility was at the bargaining table. He  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 15 of 45  
testified that although he was aware that PIPSC had concerns about eligibility, he did  
not personally make any proposals to change the language and was not party to any  
discussions with the CRA about clause 44.08 for either the 2018 or 2019 AFS collective  
agreements. He said that as a CS, he did not perform MG group duties.  
[59] Mr. Gillis was also involved in union-management consultations on the  
performance review process in 2018. He testified that the process focused on the  
performance review process and issues such as the timeliness of employees receiving  
feedback. He said that he was aware that some AU group members had filed grievances  
in 2016 about eligibility for the bonuses but that the performance review consultation  
process was not the appropriate place to raise those concerns. He was involved with  
the bargaining of the 2018 and 2019 AFS collective agreements, was a signatory to  
them, and did not believe that there were any discussions with the CRA about clause  
44.08.  
[60] As a research officer, Mr. Said was involved in the bargaining for the 2012 AFS  
collective agreement and was listed as signatory; he did not sign it as he was on  
holidays when it was signed. He did not recall any discussions or negotiations  
involving clause 44.08.  
F. Classification standards, and job duties  
[61] Both Mr. Said and Mr. Teather testified about the classification system at the  
Agency and about the MG classification standard in particular. Mr. Said testified from  
his experience helping members with classification questions and their classification  
grievances; Mr. Teather testified from his experience as a senior policy and programs  
analyst in the Agencys organizational design and classification division. He also works  
on classification grievances, albeit from the Agency’s side.  
[62] Both testified about two documents used in classifying MG positions. The first  
is the Agency Classification Standardfor the MG group (the version dated January 2,  
2007, but in effect after October 18, 2001). It sets out 16 elements used to rate jobs  
across the 4 major factors used in the standard (skill, responsibility, effort, and  
working conditions). One of the 16 elements is titled, Leadership of Human  
Resources.”  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 16 of 45  
[63] The second document is called the Management Group Reference Tool(the  
MG Reference Tool, this version also dated January 2, 2007). This tool helps users  
apply the MG classification standard. The MG Reference Tool includes the group  
definition, which reads as follows:  
Management Group Definition  
The Management Group consists of positions whose primary  
purpose is managerial. These positions arc considered part of the  
organizations management team and are accountable for  
exercising managerial authority to accomplish the objectives of the  
organization. The Management Group is responsible for managing  
human resources, communicating and promoting the corporate  
values and culture of the Canada Revenue Agency, and for leading  
and managing change within the organization.  
Inclusions  
The Management Group includes positions that are responsible for  
the following functions:  
organizing staff and work to accomplish objectives, including  
scheduling staff as and when needed to meet operational  
requirements;  
developing and/or approving work plans, monitoring  
deliverables against plans, and taking action to meet established  
objectives;  
contributing to the development of staff competencies by  
developing and/or approving staff training plans for staff of own  
work unit, by acting as a coach and mentor, and by motivating  
staff; and  
dealing with human resources matters such as authorizing leave  
and overtime, setting objectives and evaluating performance,  
handling complaints and problems and disciplining staff.  
Positions included in this group may also be responsible for the  
following:  
managing a budget;  
acting as a step in the grievance process;  
exercising other delegated human resources authorities; or  
representing the employer on union-management committees.  
Exclusions  
Positions excluded from the Management Group are those whose  
primary purpose is not managerial or whose primary purpose is  
included in the definition of another CRA occupational group.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 17 of 45  
[64] The MG Reference Tool goes on to offer this additional guidance when applying  
the Management Group definition:  
To be included in this group, the focus of the job must be the  
management of people and, therefore, must involve supervision of  
employees, either directly or through subordinate supervisors.  
The principal responsibilities of jobs in the Management Group  
include:  
leading and assigning work to employees on a regular basis;  
developing work plans and priorities on a day-to-day basis;  
evaluating performance against work plans;  
identifying and recommending other human resources needs  
such as the recruitment and training of own staff;  
providing technical advice and guidance to own staff; and  
authorizing leave and overtime.  
[65] The MG Reference Tool provides additional information on how each of the 16  
elements in the MG classification standard are to be applied. The reference tool  
includes appendices that set out the number of points a position can earn under each  
element of the standard and the minimum and maximum point boundaries for each of  
the 6 MG levels.  
[66] Both Mr. Said and Mr. Teather confirmed that when applying a classification  
standard such as the MG group, one uses the job description of the position. The first  
step one must determine is whether the position is properly included in that  
occupational or classification group. In other words, for a position to be classified MG,  
it must meet the definition and guidelines set out in the MG Reference Tool. As such,  
the primary purpose of the position must be managerial, and it must include the four  
main functions listed in the definition (organizing and scheduling staff, developing  
and approving work plans, developing staff competencies, and dealing with human  
resources matters).  
[67] Mr. Said testified that based on the content of the MG classification standard,  
human resources management is the most important element in the MG group. Each of  
the four bullet points listed under the inclusions portion of the group definition  
relates to human resources management. He testified that human resources  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 18 of 45  
management duties may also be found in other classifications, such as AU. He said  
that job descriptions list key activities, which he said are the same as duties.  
[68] Mr. Said pointed to sections of the AU-6 ILBCM job description, which list  
among their activities [w]ork with management … in developing the regional work  
planand [m]anage financial and human resources; administers various collective  
agreements and CRA policies; sets performance expectations, provides feedback and  
performance reviews and participates on staffing selection boards.He testified that  
these key activities are also found in the list of MG duties in the group definition found  
in the MG Reference Tool.  
[69] Mr. Teather testified that to allocate a position to the MG group, it would have  
to meet the primary purpose set out in the MG group definition. He testified that MG  
dutiesmeans duties performed by employees classified in the MG group. He said that  
supervisory duties are found in many of the legacy standards (i.e., such as AU and CS,  
which were imported from the Treasury Board when the Agency was created). The fact  
that supervisory duties are found in the MG group as well as under other standards  
does not make them MG duties. Few activities are ownedby a single occupational  
group, he testified.  
[70] Mr. Teather testified about the content of the AU classification standard  
currently in effect at the Agency (version dated September 1, 2014). The definition of  
the group reads as follows:  
The Audit Group comprises jobs that are primarily engaged in the  
application of a comprehensive body of knowledge in specialized  
areas such as auditing and accounting.  
Inclusions  
Notwithstanding the generality of the foregoing, for greater  
certainty, the Audit Group includes jobs that have, as their  
primary purpose, responsibility for one or more of the following  
activities:  
1. The application of a comprehensive knowledge of generally  
accepted accounting principles and auditing standards to the  
auditing of the accounts and financial records of taxpayers to  
determine their accuracy and reasonableness or to confirm the  
compliance of transactions with the provisions of statutes,  
regulations, etc.;  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 19 of 45  
2. The planning, delivery and administration of external audit  
programs;  
3. The examination and analysis of Scientific Research and  
Experimental Development claims, techniques, and technical  
processes to ensure conformity with prescribed sections of  
Canada Revenue Agency (CRA) legislation when determining  
eligibility for tax credit;  
4. Supervision of any of the above activities.  
Exclusions  
Jobs excluded from the Audit Group are those whose primary  
purpose is included in the definition of any other group in the  
Canada Revenue Agency (CRA).  
[71] He testified that if some employees classified AU do some duties that are also  
listed in the MG classification standard, the reason they are in the AU group is that  
their primary purpose is found in the AU group definition and that the supervision of  
other employees doing audit work is listed as an inclusion under point 4 of that  
definition.  
[72] Mr. Teather also testified about the composition of the AFS bargaining unit. As  
of March 5, 2022, the unit included 15 829 employees. Of these, 1514 were classified  
MG (1295 substantively, and 219 acting). He testified that another 1122 non-MG  
employees have some supervisory duties. He said that the Agency is able to identify  
that number easily because its human resources system includes a supervisory flag”  
to indicate which employees supervise other people.  
G. Auditors and their management or supervisory duties  
[73] Ms. Mark and Mr. Eckler testified about their duties as international large  
business case managers (ILBCMs).  
[74] From 2011 to 2015, Ms. Mark worked as a specialized team leader, classified at  
the MG-5 level. She supervised auditors involved in auditing small and medium  
enterprises with international activities for potential abusive tax avoidance. In 2016,  
she was subject to a WFA process and accepted an AU-4 ILBCM position. In that role,  
she began to supervise a more diverse team of international and domestic auditors.  
Later, she was promoted to ILBCM positions at the AU-5 and AU-6 levels.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 20 of 45  
[75] Ms. Mark testified that in both her MG and her AU positions, she had to make  
sure that team members had the tools and training they needed to work on the files  
assigned to them. This involved orienting new employees and developing learning  
plans for them. She did significant mentoring and coaching in both her MG and AU  
roles, including setting performance expectations, providing feedback, approving  
leave, assigning work, and working with Human Resources on employee  
accommodation issues.  
[76] As an MG-5, Ms. Mark supervised teams of about six members. As an AU-ILBCM,  
she has supervised teams of six to seven members. As an MG-5, Ms. Mark received  
performance bonuses for her work; she did not receive them while working at the AU-4  
to AU-6 levels.  
[77] As of the hearing, Mr. Eckler said that he had 8 years of experience working as  
an ILBCM at the AU-6 level. He had previous experience working on an acting basis at  
the MG-5 and MG-6 levels. He testified that as an AU-6 ILBCM, he establishes work  
plans for his unit and staff, conducts performance reviews, and meets with staff on a  
regular basis, to provide feedback. He testified that as an AU-6, he has had 6 direct  
reports. He approves their leave, travel, and any requests for overtime. He testified that  
he saw no differences between the supervisory duties he performed as an acting MG  
and those he performed as an AU, but he did testify that as an acting MG-6, he had up  
to 13 direct reports.  
[78] Mr. Eckler testified that after the April 2016 WFA plan was announced, he and  
several other AU employees filed a group grievance about the performance bonus. He  
said that it had become evident that the duties they were being asked to perform as  
AUs after April 1, 2016, were the same duties they performed as MGs before the  
review. What changed was that they were no longer eligible to receive the performance  
bonuses. He said that they filed their group grievance because the language of the  
collective agreement does not talk about positions classified MG but refers to  
employees who perform MG duties.  
[79] Mr. Eckler also testified about receiving an email in November of 2016 that  
contained an invitation to a learning event for the MG Council.” The email was  
directed to members of the MG Community, which Mr. Eckler said includes MGs and  
what are called MG equivalents. The event included topics related to performance  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 21 of 45  
assessments, performance management, having difficult conversations, and employee  
selection processes. He was not an MG at the time. He also testified about a December  
2017 learning event on “… Mental Health in the Workplace for Managers …” to which  
he was invited. Finally, he also testified about a February 2019 invitation to a training  
session on union-management consultation that was made mandatory for all “… Union  
Representatives and MG/MG Equivalents.He received that invitation even though he  
was not an MG at the time and did not hold a position as a union representative.  
H. Performance review guidelines and policies  
[80] The Agency has, over the years, published a number of policy documents  
related to the performance review process and the payment of performance bonuses  
(or in the case of the PSAC-SP bargaining unit, performance leave). From 2003 to 2010,  
these were called Performance Pay and Leave Guidelines for the Management Group  
…”.  
[81] In the first version (April 2003) of these guidelines, the eligibility criteria are  
worded as follows: The manager must have performed the duties of an MG position in  
a substantive, acting, or term capacity or an equivalent PE position.For acting  
situations, the guidelines state, The manager must have performed the MG duties for  
at least six consecutive months during the performance management review period.”  
[82] In 2011, the guidelines were retitled, Performance Pay and Leave Procedures for  
the MG Group and HR Equivalent Managers. The eligibility requirement was stated as,  
The manager must have performed the duties of an MG position or an equivalent HR  
position in a substantive, acting, or term capacity for at least six consecutive months  
during the performance management review period.”  
[83] In 2016, the performance leave and pay provisions were incorporated into a  
document called Procedures on Performance Management and Recognition, which  
stated the eligibility requirement as, “… employees of the Canada Revenue Agency  
(CRA) who occupy and perform the duties of a classified MG position or an equivalent  
HR manager …”.  
[84] The version of this document in effect when the policy grievance was filed was  
the one dated April 1, 2018. In it, the eligibility requirement reads as follows:  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 22 of 45  
Performance rewards apply to employees of the CRA who occupy  
and perform the duties in a substantive or temporary assignment  
of a classified MG position or an equivalent HR manager position  
that the CRA has deemed to be equivalent to MG positions.…  
[85] All the versions of the guidelines and procedures documents maintained the  
criteria that an employee had to act in an MG position for at least six consecutive  
months to receive performance pay.  
III. Collective agreement interpretation, and the role of extrinsic evidence  
[86] I turn now to the reasons I decided to hear the extrinsic evidence that the  
parties wished to call.  
[87] The parties did not disagree on the basic principles to apply when adjudicating  
collective agreement disputes succinctly set out in Chafe v. Treasury Board  
(Department of Fisheries and Oceans), 2010 PSLRB 112 at paras. 50 and 51, as follows:  
50 I start with the trite but true observation that my authority as  
an adjudicator is limited to and by the express terms and  
conditions of the collective agreement. I can only interpret and  
apply the collective agreement. I cannot modify terms or  
conditions that are clear. Nor can I make new ones. The fact that a  
particular provision may seem unfair is not a reason for me to  
ignore it if the provision is otherwise clear ….  
51 Second, I am obligated to determine the true intent of the  
parties when they entered into the collective agreement. To do that  
I must use the ordinary meaning of the words used by the parties. I  
must also take into account the rest of the collective agreement, for  
it is the overall agreement that forms the context in which the  
words used are to be interpreted .  
[88] However, as noted earlier, the parties differed on the role that extrinsic evidence  
should play in deciding this matter. PIPSC took the position that the Board should  
reject the introduction of extrinsic evidence. It suggested that I could rule on the  
grievance after receiving written arguments, without any need for oral evidence. It  
cited the general rule against the use of parol evidenceset out in Brown and Beatty,  
Canadian Labour Arbitration (5th edition), at paragraph 3:74 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  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
general rule at common law is that extrinsic evidence is not  
Page: 23 of 45  
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 hopesof one party. Nor  
can it be equally vague or as unclear as the written agreement  
itself.  
[89] PIPSC argued that extrinsic evidence should be allowed only if the wording in  
the collective agreement is ambiguous and that the CRA bears the burden of  
demonstrating that extrinsic evidence should be admitted, as it is the party making the  
request. Arguments about the construction of the collective agreement language do  
not equate to the existence of an ambiguity, it said. The rule against extrinsic evidence  
is designed to prevent a party from trying to alter or attack a written contract, and in  
this case, the CRA seeks to introduce evidence that would effectively result in adding  
words to the collective agreement, requiring employees to occupy an MG position  
rather than simply performing MG duties, PIPSC argued.  
[90] The Board should follow the directions of the Supreme Court of Canada (SCC) in  
Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 SCR 129 at paras. 57 and 58, and not hear  
evidence about the subjective intentions of the parties when they reached the AFS  
collective agreement, PIPSC argued. This was the approach taken by the Board in  
Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2016  
PSLREB 77 (PIPSC Personal Leave Policy Grievance) at paras. 93 to 96, it claimed.  
[91] PIPSC also argued that ruling against the introduction of extrinsic evidence  
would lead to a more efficient hearing, as few or no witnesses would be required.  
[92] The CRA agreed that the primary means for interpreting the collective  
agreement should be the words used in the contract. However, it argued that the Board  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 24 of 45  
should not require a party to demonstrate an ambiguity in the collective agreement  
language as a precondition to hearing extrinsic evidence. It said that the case law has  
evolved and that the precondition has been relaxed to allow for a less formal and more  
practical approach. Following the SCC in Sattva Capital Corporation v. Creston Moly  
Corporation, 2014 SCC 53 (Sattva Capital), the decision maker can look at the  
surrounding circumstances to better understand the intentions of the parties when  
reaching agreement on a written contract, the CRA said. Adjudicators should not  
shield themselves from highly probative evidence (see Sault Ste. Marie (City) v.  
Amalgamated Transit Union, Local 1767, 2014 71973 at paras. 41 to 42 and 45  
to 46, and Air Canada v. Air Canada Pilots Association, [2012] O.L.A.A. No. 164 (QL) at  
paras. 39 and 40).  
[93] The CRA also argued that the hearing could be less efficient if ambiguity acted  
as a precondition to hearing extrinsic evidence. In such a circumstance, the Board  
might have to bifurcate the hearing, first hearing the partiesarguments on whether  
there is ambiguity in the language and later hearing extrinsic evidence were an  
ambiguity found. It would be more efficient to allow the parties to call their evidence  
and decide later what weight to place on it, the CRA argued.  
[94] As indicated earlier in this decision, after hearing the partiesarguments on the  
admissibility of extrinsic evidence at the commencement of the hearing, I ruled that I  
would allow them to call it.  
[95] I understand that the reliance on extrinsic evidence has historically been tied to  
the question of whether there is an ambiguity in the collective agreement language; it  
can be allowed if there is an ambiguity, and it should not be allowed if there is no  
ambiguity.  
[96] The challenge of this approach is that what is normally before an adjudicator in  
a case like this is a dispute about what the words mean. This leaves the decision maker  
in a chicken-and-egg situation: How does one know if the language is ambiguous until  
the parties argue the case? Unless one is dealing with terms that are clearly defined in  
the collective agreement or that can be clearly understood via a plain-language  
interpretation, the very fact that the parties are in dispute about the meaning of a  
clause suggests a potential ambiguity.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
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  
Reasons for Decision  
Page: 26 of 45  
Trade and Development), 2020 FPSLREB 86, and this matter). In most of these cases,  
the Board opted to hear the extrinsic evidence that the parties wished to call and then  
made a determination as to what weight to place on it, if any.  
[100] Even in PIPSC Personal Leave Policy Grievance, which PIPSC argued as  
reinforcement for the principles in Eli Lilly, after finding the language in question  
unambiguous (para. 110), the Board went on to weigh some of the extrinsic evidence it  
had heard (paras. 111 to 113) before making a final decision (paras. 116 to 118). As for  
hearing efficiency, this was a case in which the Board did opt to bifurcate the hearing,  
first hearing arguments on the admissibility of extrinsic evidence, and then only  
hearing that evidence in a continuation hearing some 15 months later.  
[101] I believe that the approach of allowing contextual evidence to be heard from the  
start is fair, practical, and ultimately more efficient. This approach recognizes the  
context in which collective agreements are negotiated. They are not negotiated in the  
courtroom; they are often concluded late at night or early in the morning, often  
following extended periods of disagreement, a fact borne out in this case by Mr.  
Lamarches testimony about the bargaining that led to the 2002 AFS collective  
agreement.  
[102] Given that, the Boards approach to interpreting them should involve a  
“… practical, common-sense approach not dominated by technical rules of  
construction(see Sattva Capital, at para. 47). The Board’s job in such cases is to  
interpret the words of the collective agreement by considering their ordinary and  
grammatical meaning in the context of the circumstances known to the parties at the  
time they negotiated the language.  
[103] While making this initial ruling, I also told the parties that I was cognizant of  
the limitations placed on the value of extrinsic evidence by the SCC in Sattva Capital,  
at para. 57, as follows:  
[57] While the surrounding circumstances will be considered in  
interpreting the terms of a contract, they must never be allowed to  
overwhelm the words of that agreement The goal of examining  
such evidence is to deepen a decision makers understanding of  
the mutual and objective intentions of the parties as expressed  
in the words of the contract. The interpretation of a written  
contractual provision must always be grounded in the text and  
read in light of the entire contract While the surrounding  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 27 of 45  
circumstances are relied upon in the interpretive process, courts  
cannot use them to deviate from the text such that the court  
effectively creates a new agreement .  
[Emphasis added]  
[104] Recently, the Ontario Superior Court reinforced the principles in Sattva Capital  
and applied them to a collective agreement dispute (see Nemak of Canada Corporation  
v. UNIFOR Local 200, 2022 ONSC 1732). The Court provided a useful summary of the  
principles to be followed, at paragraphs 18 and 19, as follows:  
[18] In Sattva, the Supreme Court emphasized that the starting  
point for the interpretation of a written agreement will always be  
the wording of the contract itself. Surrounding circumstances will  
be considered in interpreting the contract, but the intent of that  
evidence is to deepen the decision makers understanding of the  
mutual and objective intentions of the parties expressed in the  
words of the contract (at para. 57).  
[19] The parol evidence rule precludes the use of evidence outside  
the wording of the contract which seeks to add to, subtract from,  
vary or contradict the written words of the contract. This includes  
evidence about the subjective intention of the parties (at para. 59).  
It applies with particular force when a party seeks to put in  
evidence that the document does not mean what it says. However,  
consideration of surrounding circumstances does not offend the  
parol evidence rule (at para. 59), because evidence of surrounding  
circumstances is used as an interpretive aid for determining the  
meaning of the written words chosen by the parties, not to change  
or overrule the meaning of those words(at para. 60).  
[105] When ruling that I would hear the extrinsic evidence that the parties wished to  
call, I also told them that I would welcome their arguments as to what evidence was  
relevant to my interpretation of clause 44.08, and what was not. Following the case law  
just cited, in the reasons that follow, I will provide my rulings on what extrinsic  
evidence is relevant to my determination and what is not.  
IV. Reasons  
[106] Turning now to the grievance, I will examine the partiesarguments and provide  
my reasons for decision under the following questions:  
What is the plain-language interpretation of clause 44.08?  
Should the plain-language interpretation be rejected as absurd or for other  
reasons?  
What meaning should be given to the differences between the English and  
French versions of the clause?  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 28 of 45  
What extrinsic evidence assists in the interpretation of the clause, and what  
meaning does it support?  
A. What is the plain-language interpretation of clause 44.08?  
[107] My determination of this grievance must begin with the words of clause 44.08,  
which for ease of reading I will repeat here in both English and French:  
44.08 Performance bonus –  
44.08 Prime de performance –  
Management Group  
Groupe de gestion  
(a) At the discretion of the Employer, a) À la discrétion de lEmployeur, les  
employees who perform  
employés qui effectuent les tâches  
dun poste classifié dans le Groupe  
de Gestion (MG) au cours de la  
période annuelle de révision seront  
éligibles, selon les conditions établies  
par lEmployeur, à recevoir une  
Management Group (MG) duties  
during the annual performance  
review period, shall be eligible,  
subject to the conditions established  
by the Employer, to receive a lump-  
sum performance bonus of up to five prime de performance sous la forme  
percent (5%) of the employees salary dun montant forfaitaire pouvant  
of his or her substantive position on  
the last day of the annual  
performance period.  
atteindre jusquà cinq pour cent (5  
%) du salaire de la position  
substantive détenue le dernier jour  
de la période annuelle dévaluation  
de rendement.  
(b) The lump-sum performance  
bonus awarded to employees under  
this clause shall not form part of  
salary.  
b) Le montant forfaitaire prévu au  
présent paragraphe et remis aux  
employés en guise de prime de  
performance ne fait pas partie de  
leur salaire.  
[Emphasis added]  
[108] PIPSC argued that the precise words that the parties chose to use in clause 44.08  
must be given their ordinary meaning. The words chosen, in English, extend eligibility  
to all employees who perform Management Group (MG) duties. The parties did not  
say that employees must occupya position in the MG group. The CRA is trying to  
add an obligation to the collective agreement that is found only in its policy  
documents, not in the collective agreement, PIPSC said.  
[109] PIPSC grieved the CRAs use of the April 2018 version of the policy document  
because it provides eligibility for “… employees occupying positions in the MG  
group …” or who have “… performed the duties of a classified MG position … for at  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 29 of 45  
least six consecutive months …”. Those words are not in the collective agreement, the  
union argued.  
[110] While the policy documents are clear and have been consistently applied for  
some 18 years, a unilaterally developed employer policy cannot be used to add words  
to the collective agreement, PIPSC argued. Furthermore, the Board cannot add words to  
the collective agreement that would amend its meaning (see Chafe, at para. 51, Delios  
v. Canada (Attorney General), 2015 FCA 117 at para. 36, Gagnon v. Treasury Board  
(Correctional Service of Canada), 2017 FPSLREB 48 at paras. 30 and 31, and s. 229 of  
the Act).  
[111] PIPSC argued that where the parties have chosen to restrict a clause to a  
particular classification, they have clearly done so. It cited several clauses in the 2018  
AFS collective agreement, including the clause allowing for compressed workweeks,  
which is prefaced by an exclusion statement that reads, Paragraph 8.02 (f) does not  
apply to employees classified as CS working a day work schedule[emphasis in the  
original], and clause 9.08, which provides for the payment of a mileage allowance to  
employees classified as CS only[emphasis in the original]. These are not newly  
developed words for expressing when a clause is restricted to a particular  
classification those same words were chosen by the parties for those same clauses  
in the 2002 AFS collective agreement.  
[112] These are sophisticated parties that know how to clearly identify when a clause  
pertains only to a single classification, PIPSC argued. If the parties intended clause  
44.08 to be restricted to employees occupying an MG position, they would have  
selected words like those used in clauses 8.02(f) and 9.08. Where the parties use  
different words, those different words must be given a different meaning, it argued  
(citing Gagnon, at para. 34, and Legge v. Treasury Board (Department of Fisheries and  
Oceans), 2014 PSLRB 47 at para. 39, which followed the SCC’s decision in Rizzo & Rizzo  
Shoes Ltd., [1998] 1 SCR 27).  
[113] Clause 44.08 should not be restricted to those who perform those MG duties in  
a position classified MG, PIPSC said. The core duties of the MG group involve the  
management of people, and the evidence provided by Ms. Mark and Mr. Eckler  
confirmed that they perform those duties as part of their jobs. Their performance of  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 30 of 45  
people management duties is mandated by their job descriptions. They should be  
eligible to be considered for performance pay.  
[114] PIPSC also argued that the performance pay policy document fetters the  
discretion of management by restricting the clause to employees who occupy an MG  
position. The policy removes from consideration a whole category of employees who  
perform MG duties but do not occupy an MG position. Under the clause, eligibility for  
performance pay should be evaluated on a case-by-case basis, it said.  
[115] The CRA argued that the words of clause 44.08 clearly tie the payment of the  
performance bonus to members of the MG group. Both the heading of the clause and  
the words used within it refer directly to the Management Group. All employees are  
grouped into classifications, and the only employees who can perform the duties of  
the MG group are employees classified MG. The parties would have used broader  
language had they intended the clause to capture employees in other classifications, it  
said.  
[116] Furthermore, the CRA argued that any benefit with monetary implications must  
be clearly stated and not imposed by inference or implication (see, for example,  
Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 at para. 27, Federal Government  
Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National  
Defence), 2015 PSLREB 33 (Dockyard East) at para. 55, and Association of Justice  
Counsel v. Treasury Board, 2015 PSLREB 18 at para. 129). The parties should have  
respect for what was negotiated, and any unfairness should be resolved at the  
bargaining table, the CRA argued (see Parmiter v. Treasury Board, 2021 FPSLREB 57 at  
para. 22).  
[117] In looking at the language of clause 44.08, I find that there is some ambiguity in  
its meaning, giving rise to two possible interpretations.  
[118] The dispute about the clause turns on the words perform Management Group  
(MG) duties, but what do those words mean? The term is not directly defined in the  
collective agreement or in any of the other evidence placed before me.  
[119] I agree with PIPSC that elsewhere in the collective agreement, where the parties  
have chosen to include or exclude employees from a provision based on their  
classification, they have used precise words, such as these, found preceding clause  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 31 of 45  
9.08: Clause 9.08 applies to employees classified as CS only[emphasis in the  
original]. Clause 44.08 is not prefaced that way. Nor does it say that, at least in English,  
the clause is restricted to those “… who perform the duties of a position classified  
within the Management Group …”. It says that all employees who perform  
Management Group (MG) dutiesare eligible to receive the bonus. It is not  
unreasonable for PIPSC to argue that since the core role of the Management Group is  
managerial, any employee performing significant managerial duties, such as Ms. Mark  
or Mr. Eckler, should be eligible to receive the bonus.  
[120] However, there are several aspects to the plain language used in the collective  
agreement that support the CRAs interpretation of the clause.  
[121] First of all, it is significant that clause 44.08 uses capital letters to refer to  
Management Group (MG) duties. By using both the official title and the initials of the  
classification group, the parties have linked the clause to the MG classification group.  
This is reinforced by the title of the clause, Performance bonus Management Group.  
This also signals that the clause applies to members of that group. As argued by the  
CRA, the heading of a clause can help explain the meaning of the clause that follows  
(see Brown and Beatty at paragraph 4:23, Dockyard East, at para. 45, and Marin v.  
Treasury Board (Canada Border Services Agency), 2008 PSLRB 92 at para. 19). While the  
wording of the heading is less clear than the words that precede clause 9.08, the  
heading does imply that the clause is for members of the MG group.  
[122] Finally, there is the fact that clause 44.08 resides within the Pay Administration  
article 44. This article provides that employees are to be paid at the rates of pay set  
out in Appendix A of the collective agreement in accordance with the classifications of  
the positions to which they are appointed (clause 44.02). The article goes on to explain  
more precisely how the pay in Appendix A is to be administered (clauses 44.03 to  
44.06) and how and when employees can receive additional acting pay if they perform  
the duties of a higher classification level (clause 44.07).  
[123] In other words, in article 44, the entire concept of pay is intertwined with the  
classification of employees into certain groups and levels. Clause 44.08 falls within the  
Pay Administration article. This reinforces the interpretation that performance bonus  
pay is tied to a particular classification group, MG.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 32 of 45  
[124] Nowhere in the collective agreement are MG dutiesdefined in such a way that  
would support an interpretation separate and distinct from the duties one performs  
when one occupies a position in the Management Group. While terms such as  
management dutiesor supervisory dutieshave a plain and ordinary meaning, those  
are not the words used. I find the reference to the official title of the group in both the  
heading and text of the clause and the placement of the clause in article 44 more  
supportive of the interpretation given the clause by the Agency. Only one classification  
group is mentioned in the clause the MG group.  
[125] If the parties wanted all classification groups to be eligible for a performance  
bonus, the words Management Groupwould be redundant, since the parties could  
have used a more general concept, such as management dutiesor supervisory  
duties.  
[126] I also agree with the submissions of the CRA that for a clause providing a  
significant monetary benefit, the wording falls short of clearly indicating that it applies  
to employees classified in positions other than MG.  
B. Should the plain-language interpretation be rejected as absurd or for other  
reasons?  
[127] The Board should not reject PIPSC’s interpretation of clause 44.08 because the  
clause would be absurd, be difficult to administer, or cost the CRA more money, PIPSC  
argued. The testimony of Mr. Teather indicated that the Agency can easily identify  
those employees who perform supervisory duties: he was able to quickly cite that there  
are 1222 people performing supervisory duties who are not MGs. PIPSC recognized  
that the CRA would bear additional costs if performance pay were extended to non-MG  
employees but argued that those costs are not absurd, given the overall scope of the  
Agencys payroll. The fact that the result may seem unfair to the Agency should not  
influence the Boards interpretation of the plain language of the agreement, PIPSC  
argued (see Chafe, and Delios paras. 36 and 37).  
[128] The CRA argued that PIPSCs interpretation would not be easy to administer.  
Despite its ease identifying how many employees perform a supervisory function,  
PIPSCs interpretation of the clause would require the Agency to review precisely how  
many of the 1222 non-MG supervisors perform Management Group (MG) duties. This  
would require the Agency to define MG duties as something distinct from the duties  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 33 of 45  
performed by those employees who are in MG positions because they match the  
primary purpose of the MG occupational group definition. This conflicts with the way  
in which the CRA classifies positions. Furthermore, it would require the Agency to do  
the same thing for employees in the PSAC-SP bargaining unit, as the Agency has a  
similar performance bonus clause (albeit one that provides MG classified employees  
with additional leave, instead of additional pay).  
[129] It is well established that an adjudicator may reject what is otherwise clear  
collective agreement language if the resulting interpretation is absurd (see Ewaniuk v.  
Treasury Board (Department of Citizenship and Immigration), 2020 FPSLREB 96 at para.  
45). Faced with a choice between two possible interpretations, reasonableness and  
administrative feasibility can be used in determining which interpretation is to be  
preferred (see Ewaniuk, at para. 46, citing Brown and Beatty at paragraph 4:2100).  
[130] I do not agree with the CRA that I should reject PIPSCs interpretation of the  
clause simply because the PSAC has a similar clause in its collective agreement. This is  
PIPSCs policy grievance, about the wording in its collective agreement with the CRA.  
Board decisions on policy grievances may or may not affect the interpretation of  
similar language in other collective agreements; that is up for those other parties to  
determine.  
[131] I agree that PIPSCs interpretation of the clause would be easy to administer if  
the words performs Management Group (MG) dutiesmean that all employees who  
perform any supervisory duties could be eligible to receive the bonus. Clearly, it was  
easy for Mr. Teather to provide a count of employees performing supervisory duties.  
[132] However, the collective agreement does not say performs supervisory duties.  
The question of what level of supervisory duties would add up to the performance of  
MG duties would very much be a live question if I were to adopt PIPSCs interpretation.  
Such an interpretation would impose an administrative burden on the Agency, as it  
would have to carefully evaluate an additional 1222 employees for possible bonuses.  
[133] The application of this criteria favours the Agency’s interpretation.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 34 of 45  
C. What meaning should be given to the differences between the English and  
French versions of the clause?  
[134] Then there is the significance of the differences between the English and French  
versions of the clause. These differences add to the ambiguity of the clause. The  
English phrase, employees who perform Management Group (MG) duties, could be  
interpreted as meaning employees other than those classified MG, and the French  
version of the clause more clearly ties eligibility for the performance bonus to  
positions classified in the MG group because it reads, “… les employés qui effectuent  
les tâches dun poste classifié dans le Groupe de Gestion (MG) …” [emphasis added].  
[135] In short, the French version of the clause much more clearly supports the CRAs  
interpretation of clause 44.08, which is that to receive the performance bonus, one  
must perform duties in a position classified MG.  
[136] In the collective agreement between the parties, article 3 is titled Official  
Texts, and clause 3.01 reads as follows: Both the English and French texts of this  
Agreement shall be official.”  
[137] As argued by the CRA, the interpretation of clause 44.08 argued by PIPSC would  
put the English and French versions of the clause in conflict. The Agencys  
interpretation of the clause would leave the two versions in harmony and should be  
preferred. As stated in Brown and Beatty at paragraph 4:21, Furthermore, where there  
are French and English versions, the interpretation to be sought is one which is  
coherent in both texts.”  
[138] I will address what the extrinsic evidence has to say about the differences  
between the English and French versions later in this decision.  
D. What extrinsic evidence assists in the interpretation of the clause, and what  
meaning does it support?  
[139] Overall, I find that the technical analysis of clause 44.08 favours the  
interpretation argued by the CRA. However, the fact that there is some ambiguity in  
the provision, particularly when comparing the English- and French-language versions,  
calls for the consideration of extrinsic evidence that can be of assistance in  
interpreting the text of the agreement. As stated by the Ontario Superior Court in  
Nemak, the intent of considering that evidence “… is to deepen the decision makers  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 35 of 45  
understanding of the mutual and objective intentions of the parties expressed in the  
words of the contract …” (at paragraph 18).  
1. Bargaining history  
[140] First, consider the negotiating history. The undisputed evidence provided by Mr.  
Cenne is that when the Agency was first formed, it wished to enhance the role and  
importance of managers and team leaders. It made extensive arguments for the  
creation of a separate bargaining unit for these managers in front of the PSSRB. Even  
after the PSSRB rejected the establishment of a separate unit, the Agency proceeded to  
establish a distinct classification standard that cut across the two bargaining units that  
were established. In the negotiations leading up to the signing of the 2002 AFS  
collective agreement, the Agency proposed a brand new pay grid for the Management  
Group, and it proposed a performance pay clause.  
[141] This evidence cannot be dismissed as merely the subjective intentions of the  
Agency; it is evidence that is reflected in PSSRBs decision in CCRA v. APSFA and in the  
content that found its way into the first collective agreement between the parties: the  
establishment of the MG group as a distinct classification effective March 31, 2002,  
and the content of the performance pay clause.  
[142] Mr. Cenne testified clearly and explained that during negotiations, the Agency  
wanted to include the performance pay clause for members of the MG group because it  
wanted to highlight the importance of effective people management.  
[143] The evidence of Mr. Lamarche, who was the chair of PIPSCs AFS group in 2002,  
was that his bargaining team did not want to accept the clause because it wanted  
money for the unit as a whole. The team did not want to reward one group of  
employees with a pay increase. They listened to the presentation but saw it as an  
employer provision.They did not propose counter language. The PIPSC team agreed  
to include the performance pay provision in the tentative agreement only once they  
felt that they had secured acceptable pay increases for the bargaining unit as a whole.  
PIPSC did not make a counter proposal on the clause, and no evidence was provided to  
indicate that there was any discussion about it applying to non-MG employees.  
[144] This testimony illustrates the context in which collective bargaining takes place.  
Ultimately, it is not relevant how many times PIPSC said noto the language being  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 36 of 45  
proposed during negotiations. What is relevant is that in their tentative agreement,  
reached in June 2002, they said yesto the creation of a new clause, and in the  
collective agreement signed in July 2002, the performance bonus clause was  
incorporated into the Pay Administration article.  
[145] I have taken careful note of the fact that the language used for the performance  
bonus clause in the June 2002 tentative agreement was changed before the 2002 AFS  
collective agreement was signed in July. The tentative agreement described it as a new  
article; the final clause was made part of the existing article on Pay Administration.  
The eligibility criteria in English changed from “… perform the duties of a position  
classified within the Management Group …” to perform Management Group (MG)  
duties. The tentative agreement did not contain the transitional reference to the 2001-  
2002 performance review period; the collective agreement did. Finally, the clause in the  
tentative agreement said the lump-sum performance bonus would be calculated as up  
to 5% of the employees MG salary; the collective agreement states that the bonus is up  
to 5% of the salary of the employees substantive position.  
[146] The wording of the tentative agreement cannot be used to override the  
collective agreement. It is the final collective agreement language that ultimately  
represents the agreement between the parties.  
[147] However, the fact that the language was changed in several ways does indicate  
that there must have been a precise intention behind the final wording of the clause.  
On its face, the fact that the English language in the tentative agreement was altered  
from “… perform the duties of a position classified within the Management Group …”  
to perform Management Group (MG) dutieslends more credence to PIPSCs  
arguments about the meaning of the clause than it does to the CRAs arguments. The  
fact that the parties changed the formula from 5% of the employees MG salary to 5% of  
the employees substantive position salary also suggests that the clause was intended  
to apply to non-MGs or at least to non-substantive MGs.  
[148] However, only Mr. Cenne testified clearly as to why there was a difference  
between the clause contained in the June 2002 tentative agreement and the one in the  
2002 AFS collective agreement signed in July of 2002. He said that the Agency  
populated the MG group effective only on March 31, 2002, but that it wanted the  
performance bonus to apply for the entire 2001-2002 performance period. The Agency  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 37 of 45  
also wanted the article to apply to employees acting in an MG role, not just those  
employees permanently appointed to an MG position, and the language changes  
reflected that goal.  
[149] Mr. Lamarche had no explicit explanation for the changes in language. He said  
only that the tentative agreement was reached late in the night and should therefore  
not be relied on as evidence of what the parties intended when they signed the  
collective agreement.  
[150] PIPSC argued that Mr. Cennes testimony clearly revealed the Agencys intention  
to have the performance bonus clause apply to non-MGs, which is why they removed  
the reference to positions classified MG. I disagree. Mr. Cenne clearly explained that  
2001-2002 was a transitional year and that the Agency wanted to pay the bonus to  
those employees who were being converted to the MG group on March 31, 2002, for  
the entirety of that year.  
[151] He also said that the changes were designed to capture employees who acted in  
an MG role. While they might have chosen clearer language to reflect this, this  
explanation makes sense, particularly when considering the part of the clause that sets  
the bonus at up to 5% of an employees substantive position salary. If the parties  
intended to include employees acting in an MG role, it makes sense that they included  
a reference to the employees’ substantive position salary. There was no dispute  
between the parties that the clause is intended to apply to employees acting in an MG  
position.  
[152] Both Mr. Cenne and Mr. Lamarche testified that when the parties renewed the  
performance pay clause in the negotiations for the 2005 AFS collective agreement, the  
only change made was to remove the reference to the 2001-2002 performance pay  
year. Otherwise, the parties did not propose changes or have substantive discussions  
about the clause.  
[153] Other than a renumbering of the clause in the signing of the 2009 AFS collective  
agreement, the undisputed testimony of the witnesses before me was that there were  
no substantive discussions about the clause and no proposals to change the wording.  
The performance bonus clause was renewed without substantive change in each of the  
2012, 2018, and 2019 collective agreements.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 38 of 45  
[154] I find that this extrinsic evidence supports the conclusion that clause 44.08 was  
first negotiated during the negotiations that led to the signing of the 2002 AFS  
collective agreement, that it has not been substantively altered since, and that the  
introduction of the clause was tied directly to the introduction of the MG classification  
as a distinct group of employees. This evidence reinforces my conclusion that it is the  
CRAs interpretation of the clause that should prevail in the grievance.  
[155] Note that I do not feel it necessary to place weight on Mr. Cennes testimony  
that he explained to the PIPSC team that the clause applied only to MGs during  
negotiations for the 2002 AFS collective agreement. This evidence was not  
corroborated by Mr. Lamarche. I find it sufficient to place weight only on the  
contextual evidence about the creation of the MG group and on Mr. Cennes  
explanation of the logic behind the wording of the clause.  
2. The classification system  
[156] Secondly, I have considered the testimony about the operation of the Agencys  
classification system and find it relevant to the determination of this matter. Both Mr.  
Said and Mr. Teather recognized that the classification system determines how jobs are  
recognized and paid. Both stated that when a job is being classified, one must look at  
its primary purpose and determine which occupational group or classification  
standard applies. Once that is done, the classification standard and the classification  
reference tool is used to assess the job and determine its level.  
[157] Clearly, the MG classification standard is meant to capture those jobs with a  
primary purpose that is managerial. In the group definition, found in the MG Reference  
Tool, it says that the MG group includes positions responsible for the following  
functions: organizing and scheduling staff, developing and monitoring work plans,  
developing staff competencies, and dealing with human resources matters, such as  
authorizing leave and overtime. Positions in the MG group may also be responsible”  
for managing a budget, acting as a step in the grievance process, exercising delegated  
human resources authorities, and representing the Agency on union-management  
committees. In the standard, the point system used places considerable weight on the  
leadership of human resources (15% of total points).  
[158] In short, the MG standard supports the notion that MG duties are those that  
involve the management of human resources.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 39 of 45  
[159] By comparison, the AU classification standard is designed to rate jobs whose  
primary purpose is the application of auditing and accounting principles to the  
assessment of tax returns and the planning, delivery, and administration of external  
audit programs.  
[160] However, the AU standard also contains an inclusion statement that recognizes  
the supervision of other auditors as part of the primary purpose of positions included  
in the AU standard. The evidence before me from these documents and from the  
testimonies of Mr. Said and Mr. Teather is that individual duties or tasks can be  
performed by employees in different classifications. This includes supervisory duties.  
The determination of which classification system applies to a particular job is based  
on an assessment of the positions primary purpose.  
[161] In short, this extrinsic evidence about the way in which the classification system  
works does not support the notion that there are a set of tasks called MG duties,  
which are separate and distinct from the duties of employees classified MG. The  
description of MG duties exists in documents that are intended to classify positions  
MG, or not. Although the AU standard does not elaborate the supervisory duties of AU  
jobs in as explicit a way as the MG standard does, supervision is clearly listed as a  
potential AU duty.  
[162] I note that Ms. Mark and Mr. Eckler provided detailed testimony about the  
extent of their human resources duties as ILBCMs classified in the AU group. They  
supervise teams of six to seven employees, assign them work, develop their capacities,  
evaluate their performance, and approve their leave. Ms. Mark in particular testified  
that there were few differences between the team leader role she played as an MG and  
the team leadership roles she plays as an AU.  
[163] However, as PIPSC argued, this is not a grievance about job descriptions; nor is  
it a classification grievance about the placement of the ILBCM positions in the AU  
group. It is not an acting-pay grievance, suggesting that the AU-ILBCMs ought to be  
paid as MGs and therefore be potentially eligible for performance pay. I make no  
finding with respect to the placement of Ms. Marks and Mr. Ecklers positions in the  
AU group, as that was not the issue before me.  
[164] The question is whether Ms. Marks and Mr. Ecklers testimonies shed any light  
on my interpretation of the performance bonus clause in the collective agreement. In  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 40 of 45  
my assessment, they do not. I accept that the 2016 downward reclassification of some  
positions from the MG group to the AU group might have led to a sense of unfairness  
among employees who continue to work hard to manage their teams without access to  
the performance bonus. And this evidence helps me understand why PIPSC took up  
their cause through this policy grievance. However, their evidence about the  
supervisory duties they have performed in the AU classification post-2016 provides no  
probative value at all in my effort to better understand what the parties intended when  
they signed the performance bonus clause into the first AFS collective agreement in  
2002.  
[165] I have also noted Mr. Ecklers testimony that he has received invitations to  
meetings and training sessions as an MG Equivalent. While this reinforces his  
position that he is performing duties similar to an MG, it does not mean that he should  
have been classified MG; nor does it mean that he has performed MG duties as  
contemplated by the performance bonus clause. Neither does this testimony shed any  
light on the intentions of the parties when they signed the performance bonus clause  
into the first AFS collective agreement in 2002.  
3. Policy documents  
[166] Third, there is the extrinsic evidence in the form of the Agency’s policy  
documents about the performance management process and the pay and leave  
bonuses associated with it. I agree that the Board must be cautious accepting this as  
evidence of the partiesintentions with respect to the language of the collective  
agreement. A unilaterally promulgated policy document cannot be used to overturn  
the language of the collective agreement (see Brown and Beatty at paragraph 4:14).  
[167] However, at issue is not a single policy instrument but no less than 16 versions  
of the policy statements or guidelines issued annually by the Agency between 2002  
and 2018 (the final version before this policy grievance was filed). Consistently, in each  
and every one of them, the Agency made it clear that the performance pay bonus is  
directed to those employees who are part of the MG group on an indeterminate basis  
or who have acted in an MG position for 6 consecutive months or more. None of these  
documents provides any indication that the performance bonus was ever intended to  
cover employees of other bargaining unit classifications who perform managerial or  
supervisory duties in those classifications.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 41 of 45  
[168] Past practice in a matter like this should be considered only when a union has  
been made aware of and has acquiesced to an employers practice (see Canada  
(Attorney General) v. Fehr, 2018 FCA 159 at para. 9, and Ewaniuk, at paras. 16 and 49).  
Therefore, I might not rely entirely on these documents as evidence of the Agencys  
past practice, to interpret clause 44.08. However, the fact that the Agency published  
annual versions of this document over a period exceeding 16 years, that they  
consistently reflected the CRAs interpretation of the clause, and that PIPSC never once  
made proposals to change the language in collective bargaining, is relevant contextual  
evidence which assists me in confirming the intended application of the clause. The  
employer’s interpretation and application of the clause went uncontested until some  
employees filed individual or group grievances in 2016 following the WFA process  
which created the AU-ILBCM positions, and until PIPSC filed this policy grievance in  
2019.  
4. Other extrinsic evidence  
[169] The CRA argued that the unions failure to raise the eligibility issue during  
consultations on the performance review process was relevant and indicated the  
union’s acceptance of its past practice. Mr. Gillis and Mr. Muench both testified about  
those consultation processes, and several email exchanges about them were tendered  
as exhibits.  
[170] I place no weight on the fact that the union did not raise the eligibility issue  
during consultations on the performance review process. The evidence was that the  
consultations took place primarily after 2016, and there was no indication that  
eligibility was part of their mandate. By 2016, individual and group grievances about  
eligibility had been filed by employees such as Ms. Mark and Mr. Eckler. Mr. Gillis and  
Mr. Muench has a clear rationale as to why they would not use the consultation forum  
to raise what is a contract-interpretation issue. This evidence sheds no light on what  
the parties intended when they first included the performance bonus clause in the  
2002 AFS collective agreement.  
[171] I place no weight on the subjective interpretation of Mr. Cenne that extending  
the performance bonus to non-MGs would defeat the purpose of the clause. Nor do I  
place any weight on the subjective assessment of the meaning of the clause given by  
Mr. Dunn or any of the PIPSC negotiating team members.  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 42 of 45  
5. Bargaining history related to the French version of the clause  
[172] The extrinsic evidence provided about the differences between the English and  
French versions of the clause is relevant but not very helpful to my interpretation of  
the clause. Both parties brought forward witnesses who testified that the parties  
negotiated in English and translated the result into French.  
[173] Mr. Cenne testified that the French language of the clause should have been  
modified to match the English so that the clause would clearly include those in acting  
positions. In other words, his evidence was that the French version of the agreement is  
incorrect or should not be given as much weight as the English. Similarly, Mr. Lamarche  
testified that the parties negotiated in English, that the Agency carried out the  
translation of the agreement, and that the English should prevail.  
[174] This evidence contradicts the clear language of the collective agreement at  
clause 3.01 that both the English and French versions are official. The parties have now  
signed a total of six collective agreements containing both clause 3.01 and the  
performance bonus clause, with one construction in English and a slightly different  
construction in French. The fact that in 2002, they might have exchanged proposals in  
only one official language cannot be sustained as a reason to dismiss the wording used  
in the other official language of the collective agreement.  
[175] In any case, I do not accept Mr. Cennes interpretation that the French version of  
the clause would exclude employees who act in an MG role. Those who act in an MG  
position are, for that time, performing the duties of a position classified in the  
Management Group. In my assessment, their eligibility is established in both the  
English and French versions of the clause.  
[176] As noted earlier, when the English and French versions of the collective  
agreement are both official, the Board should select the interpretation that provides  
for the greater harmony between the two versions. That remains the CRAs  
interpretation.  
V. Conclusions  
[177] I have determined that the meaning of clause 44.08 is that it applies to those  
employees who perform Management Group duties by occupying or acting in a  
position classified MG. In reaching this conclusion, I have considered the language of  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 43 of 45  
the clause, its direct reference to the Management Group, its placement within the pay  
administration article, and its wording in both English and French. I have considered  
that extrinsic evidence that I found both relevant and allowed under the direction laid  
out by the SCC in Sattva Capital, namely, the context of collective bargaining, the  
testimonies of those involved in the negotiations of the clause, the evidence about the  
operation of the classification system at the CRA, and the fact that for 18 years now,  
the Agency has maintained a consistent policy about its administration of the clause.  
[178] I accept the arguments of the parties that the Board may not amend the  
collective agreement between them, per s. 229 of the Act. I recognize that accepting the  
CRAs interpretation could arguably be found to be adding the word classifiedto the  
English version of the clause or adding the idea that someone must occupyan MG  
position to receive the bonus. However, the interpretation proposed by PIPSC arguably  
involves changing the clause from performs Management Group (MG) dutiesto  
performs managerial dutiesor performs supervisory duties.  
[179] I am not altering the terms of the collective agreement but merely providing an  
interpretation of the words that the parties used. The clause provides that all  
employees who perform Management Group (MG) dutieswill be considered for the  
performance pay bonus; I find that the CRAs interpretation of those words does not  
constitute a violation of the collective agreement.  
[180] I have noted PIPSCs rhetorical question that if the Agencys subjective intention  
behind the clause, as expressed by Mr. Cenne, was that it wished to reward effective  
people management, then how is it fair that MG team leaders receive a bonus but AU  
team leaders do not?  
[181] This is an important question but is not relevant to my interpretation of the  
collective agreement language. The job of an adjudicator is to interpret the collective  
agreement based on the language of the collective agreement and any relevant  
extrinsic evidence of the partiesintentions at the time they fashioned its language,  
despite that the result may be unfair (see Brown and Beatty at paragraph 4:21). If it is  
unfair that Ms. Mark and Mr. Eckler do not receive performance pay while their MG  
colleagues do, that is for the parties to sort out. As argued by PIPSC, when a provision  
is felt to be unfair to one party or the other, the place to sort that out is the next round  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 44 of 45  
of bargaining. This was reinforced by the Federal Court of Appeal in Delios, at para. 36,  
as follows:  
[36] Behind this finding is the adjudicators specialized and expert  
appreciation that in any collective agreement often a document  
of considerable length and complexity there will be issues left on  
the table, unresolved. Collective bargaining can be tough, each  
side must make difficult compromises, and so there are any  
number of things in the final deal that can seem unfair or  
inequitable to the parties. As the adjudicator noted, it is not for  
him to modify the text of the agreement to address those issues.  
Rather, as the adjudicator held, it is for the next round of  
bargaining.  
[Emphasis added]  
[182] For all of the above reasons, the Board makes the following order:  
(The Order appears on the next page)  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  
Reasons for Decision  
Page: 45 of 45  
VI. Order  
[183] The grievance is denied.  
June 23, 2022.  
David Orfald,  
a panel of the Federal Public Sector  
Labour Relations and Employment Board  
Federal Public Sector Labour Relations and Employment Board Act and  
Federal Public Sector Labour Relations Act  

Top Judgements:
Saskatoon Co-operative Association Limited v United Food and Commercial Workers | Aug 15, 2022
Old Lakeshore Inc. v City of Burlington | Sep 2, 2022
Tietz v. Affinor Growers Inc. | Sep 13, 2022
Efficiencyone (E1) | Sep 6, 2022
President's Choice Bank v. The Queen | Jul 19, 2022
First Global Data Ltd | Sep 15, 2022
Rayonier v Unifor, Locals 256 and 89 | Aug 11, 2022
Alberta Workers’ Compensation Appeals Commission | Decision No. 2021-0334 | Jul 14, 2022
Metrowest Developments Ltd v Flynn Canada Ltd | Sep 14, 2022
R. v. Cameron | Jul 15, 2022
Functional Servicing and Stormwater Management | Jul 28, 2022
101034761 Saskatchewan Ltd. v Mossing | Aug 24, 2022
Waste Control Services Inc. v International Union of Operating Engineers, Local No. 115 | Aug 12, 2022
RJM56 Holdings Inc. c. Bazinet | Aug 17, 2022
Sherwood v The Owners, Strata Plan VIS 1549 | Aug 9, 2022
WCAT Decision A2001487 | Aug 8, 2022
City of Hamilton v Ontario Water Employees’ Association | Sep 12, 2022
Century Services Corp. v. LeRoy | Jul 8, 2022
United Food and Commercial Workers, Local 175 v Metro Ontario Inc. | Jul 4, 2022
Langmaid’s Island Corporation v Lake of Bays | Sep 12, 2022
WCAT Decision A2102416 | Jul 22, 2022
Inquiry about McAbee Fossil beds | Jul 14, 2022
1088558 Ontario Inc. v. Musial | Sep 16, 2022
Biogen Canada Inc. v. Pharmascience Inc. | Aug 8, 2022
CIC Management Services Inc. v City of Toronto | Jul 21, 2022
Bonterra Energy Corp v Rosells’ Enterprises Ltd | Aug 31, 2022
WCAT Decision A2100606 | Aug 17, 2022
Leffler v Aaron Behiel Legal Professional Corporation | Jun 30, 2022
Espartel Investments v. MTCC No. 993 | Aug 19, 2022
Onespace Unlimited Inc. v. Plus Development Group Corp. | Sep 19, 2022
Professional Institute of the Public Service of Canada v. Canada Revenue Agency | Jun 23, 2022
Community Savings Credit Union v. Bodnar | Jul 29, 2022
Galperti SRL v F.I.A.L. Finanziaria Industrie Alto Lario S.P.A | Jun 30, 2022
WCAT Decision A2102352 | Jul 6, 2022
WCAT Decision A2102306 | Jul 25, 2022
Thrive Capital Management Ltd. v. Noble 1324 Queen Inc. | Jul 12, 2022
Questor Technology Inc v Stagg | Sep 8, 2022
MediPharm v. Hexo and Hwang | Jul 25, 2022
Immunization rates & vaccine hesitancy | Aug 17, 2022
Morabito v. British Columbia Securities Commission | Aug 12, 2022
Killeleagh v Mountain View County (Development Authority) | Aug 24, 2022
Quality Control Council v Stanley Inspection Canada Ltd. | Sep 9, 2022
British Columbia Investment Management Corporation | Aug 17, 2022
Abbeylawn Manor Living Inc. v Sevice Employees International Union, Local 1 Canada | Jul 5, 2022
Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector | Aug 18, 2022
Irani and Khan v. Registrar, Motor Vehicle Dealers Act | Jul 14, 2022
CP REIT Ontario Properties Limited v City of Toronto | Aug 12, 2022
Potash Corporation of Saskatchewan Inc. v. The Queen | Jul 7, 2022
Wong v. Pretium Resources Inc. | Jul 22, 2022
Labourers' International Union of North America, Local 183, Union v Mulmer Services Ltd. | Aug 5, 2022
City of Mississauga v. Hung | Sep 22, 2022
Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (28 September 2022)
Orewa Community Church v Minister for Covid-19 Response (16 August 2022)
Yeshiva College Bondi Limited v NSW Education Standards Authority (15 August 2022)
Moreland Planning Scheme Amendment C208more | Heritage Nominations Study | Panel Report | 15 July 2022
New Zealand Tegel Growers Association Incorporated | 2 August 2022
Farrow-Smith and Comcare (Compensation) | 26 September 2022
Evolution Fleet Services Pty Ltd v Allroads Plant Pty Ltd | 14 September 2022
656621 B.C. Ltd. v David Moerman Painting Ltd. | Sep 27, 2022
Fraser Valley Packers Inc. v Raiwal Holdings Ltd | Sep 26, 2022
Parmar v Tribe Management Inc. | Sep 26, 2022
DES Studio inc. c. Shuchat | Sep 26, 2022
Van-Kam Freightways Ltd. v Teamsters Local Union No. 31 | Sep 28, 2022
Rogers Communication Inc. v British Columbia | Sep 28, 2022
Alderbridge Way GP Ltd. | Sep 28, 2022

© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission