IN THE MATTER OF A RIGHTS ARBITRATION under Section 124 of the POLICE SERVICES ACT, as amended

BETWEEN:

Ottawa Police Services Board (The “Board”)

AND

Ottawa Police Association (The “Association”)

AND in the matter of the individual grievance of Constable Joseph Barrette

ARBITRATOR: William A. Marcotte

APPEARANCES: FOR THE BOARD: D. W. Wilson, Mgr., litigation and

employment law L. Milson, Mgr., lab. rel.

FOR THE ASSOCIATION: S. Welchner, counsel Sgt. G. Broadfoot, Assn. admin.

Hearing held in Ottawa on June 6, 2006.

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AWARD

In its March 3, 2006 grievance, the Association claims that Constable Joseph Barrette (the “grievor”)

was improperly denied his “Annual leave for retirement” and seeks by way of remedy, that (now

retired) Cst. Barrette be awarded his annual leave. The Board position is that the grievor was

properly denied his annual leave in the year of his retirement.

The relevant provisions of the collective agreement to which the parties referred are as follows:

2:02 The Board agrees that no member will be dealt with adversely without reasonable cause, and that it will exercise the function outlined in paragraphs 2:01 (a) and (b) fairly, without discrimination and in a manner consistent with this Agreement, the Police Services Act and the Regulations made thereunder by the Lieutenant Governor in Council.

7:02(ii) (b) . . .

The elimination period for long term disability will be 680 hours in accordance with the LTDI Policy with the carrier company.

8:03 ON RETIREMENT

(a) On retirement, as defined in Article 10, an employee shall be entitled to a terminal allowance.

(b) On the date of retirement, the number of days unused sick leave standing to the employee’s credit shall be doubled. The terminal allowance shall be fifty percent (50%) of this number of days multiplied by the employee’s daily rate of pay at the date of the employee’s retirement.

(c) That in no case shall the number of days terminal allowance at termination exceed the maximum number of days terminal allowance previously available to employees under their respective Collective Agreements with Gloucester, Nepean or Ottawa Police Services Boards as at December 31, 1994.

ARTICLE 15 - VACATION LEAVE

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15:01 Subject to 15:10, each employee coming within this Agreement shall be entitled to vacation with full pay on the following basis:

(i) On completion of one (1) year’s service, and in each subsequent year the employee shall be granted ten (10) working days.

Each employee who has not completed one (1) year’s service shall be entitled to five sixth (5/6) of a day for each completed month of service.

(ii) In the year an employee completes three (3) years of service, and in each subsequent year the employee shall be granted fifteen (15) working days.

(iii) In the year an employee completes ten (10) years of service, and in each subsequent year the employee shall be granted twenty (20) workings days.

(iv) In the year an employee completes fifteen (15) years of service and in each subsequent year the employee shall be granted twenty-five (25) working days.

(v) In the year an employee completes twenty (20) years of service the employee shall be granted twenty-six (26) working days.

(vi) In the year an employee completes twenty-one (21) years of service the employee shall be granted twenty-seven (27) working days.

(vii) In the year an employee completes twenty-two (22) years of service the employee shall be granted twenty-eight (28) working days.

(viii) In the year an employee completes twenty-three (23) years of service and in each subsequent year the employee shall be granted thirty (30) working days.

(ix) In the year an employee completes twenty-seven (27) years of service and in each subsequent year thereafter, the employee shall be granted thirty-five (35) working days.

15:02 Where, in any year, an employee leaves the employer prior to receiving annual vacation in that year, the employee shall be given the proportionate amount of vacation earned for that year before the employee’s name is removed from the paysheet or before the resignation becomes effective.

15:03 Where, in any year, an employee dies prior to receiving annual vacation in that year, there shall be paid to the estate an amount equal to the salary that

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would have been paid to the employee on the proportionate amount of vacation earned for that year.

15:04 Annual vacations shall be taken by employees in each rank within a Division, Platoon or Section in order of seniority based on the total length of service with the employer.

Except as otherwise provided in 15:08, an employee shall take annual vacation in one (1) or more draws. The employee shall make the first draw in the usual manner (in order of seniority) and the subsequent draws (in order of seniority) after the first draw has been completed.

The annual vacation draw shall commence no earlier than the 15th day of October and shall be completed no later than the 31st day of December in each year.

15:05 Should an employee be sick immediately prior to or during annual vacation and should the illness require the employee to be confined to bed for a period of five (5) or more days during the annual vacation period, the employee shall be given the option of charging the time actually sick, either to the annual vacation or to sick leave. The balance of the annual vacation or the total vacation would then be taken outside the normally established vacation schedule and subject to the agreement of the Chief.

15:06 When an employee is required to return to duty for any reason other than court while on annual vacation the employee shall be granted three extra days’ pay for each day or portion thereof. This return to duty would only be on the orders of the Chief.

15:07 In the year an employee leaves on retirement with a pension from OMERS or COSF, the employee shall be entitled to full vacation entitlement for that year in either time off or by pay.

15:08 Those employees who, on a regular basis, are not eligible for either overtime, or court time, are to be permitted to utilize up to five (5) days of their annual leave for the purpose of taking one (1) day leaves throughout the year at the discretion of their supervisor. The provisions of 14:05 (court time) will not apply to any leave taken under this provision.

15:09 The entitlement of an employee to vacation leave/pay in any calendar year shall be reduced on a proportionate basis for time off by the employee during that year on:

(i) sick leave with or without pay and/or Workers’ Compensation totalling in excess of six (6) uninterrupted months, either solely or in combination;

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(ii) any amount of time off on Long Term Disability Leave;

(iii) any period of leave without pay in excess of twenty (20) consecutive days or,

(iv) as otherwise provided in this Agreement.

The parties submitted the following Agreed Statement of Facts:

STATEMENT OF AGREED FACTS

1. Constable Joe Barrette became ill on November 9, 1991.

2. Constable Barrette commenced LTD on May 8, 1992.

3. Constable Barrette remained on LTD until his retirement on October 31, 2004.

4. Constable Barrette retired with a pension from OMERS.

5. The Police Service advised Constable Barrette that he was not eligible to receive his full annual leave in the year of his retirement under Article 15.07 of the collective agreement, due to the application of Article 15.09 to his circumstances. The Police Personnel collective agreement is attached as Appendix 1.

6. The Association disagreed with the decision of the Police Service to refuse to provide Constable Barrette with his full annual leave in the year of his retirement.

7. This dispute was referred to a rights dispute conciliator pursuant to a request dated January 28, 2005 from the Ottawa Police Association under section 123 of the Police Services Act. Conciliation was unsuccessful.

8. This dispute has now been referred to a rights dispute arbitrator pursuant to the request dated March 3, 2006 from the Ottawa Police Association made under section 124 of the Police Services Act. This referral to arbitration is attached as Appendix 2.

9. The parties reserve the right to lead additional evidence at the arbitration hearing of this matter.

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The only witness called to testify was Sgt. Geoffrey Broadfoot, the Association Administrator. Prior

to taking that position in November 2001, he was the Association president for two years, beginning

in November 1999. Sgt. Broadfoot testified that art. 15:07 is designed to provide a severance

allowance to retiring police officers and that between December 1, 1999 and January 1, 2003

inclusive, four police officers who retired while on long-term disability benefits received their

entitlement under art. 15:07, although advised by the Board that in one case (the retiree of January 1,

1999) it was uncertain if the severance allowance included vacation entitlement, albeit that appeared

to be the case.

In cross-examination, Sgt. Broadfoot agreed that the effect of art. 15:07, regardless of intent, was to

differentiate full vacation entitlement for retiring police officers from the circumstances addressed in

articles 15:02 and 15:03, wherein officers who leave the service or die in a given year are only

entitled to a pro-rated vacation allowance. He agreed that the provisions of art. 15:09 are intended

as a cost-saving measure for the Board regarding vacation pay entitlement for police officers in the

circumstances identified in that article. He agreed that under art. 7:02 (ii) (b) there is a waiting

period of 680 hours prior to an officer becoming entitled to LTD benefits. As to the sorts of leaves

contemplated under art. 15:09 (iii), Sgt. Broadfoot said these normally are in the nature of

educational opportunities or employment situations of benefit to the Board upon the officer’s return

from a leave of absence without pay in excess of twenty consecutive days. Sgt. Broadfoot said that

art. 8:03 also addresses allowances provided to a retiring officer, namely, terminal allowance

calculated on the basis of unused sick leave, which allowances are differentiated under Article 9 -

Terminal Leave Provision For Long Service Employees, depending upon whether or not the officer

was employed by the Board prior to January 1, 1984. Sgt. Broadfoot noted that under art. 10:08, a

police officer hired after October 15, 1995 who retires on a “non actuarially reduced pension” and

who has at least 30 years of service, is entitled to a retirement allowance of “two (2) days of pay for

each completed year of service to a maximum of sixty (60) days.”

The evidence, also, is that in a letter to the Board dated January 21, 2002, under the signature of Sgt.

Broadfoot, the Association states, in part relevant to our purposes, as follows:

In an effort to come to an agreement on the interpretation of these articles, I would request that the [Board] articulate clearly its position on what the correct

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interpretation of the articles in question is believed to be. Below I have set out the interpretation of the specific articles of the respective Collective Agreements [i.e., sworn and civilian members agreements] that has come to be relied upon by the [Association]:

1) Article 15:07 Police Personnel Collective Agreement A retiring member’s entitlement to full vacation leave in the year of retirement, pursuant to Article 15:07, is unfettered. That is to say, the entitlement of a member to this benefit is not limited by his/her utilization of sick leave.

In a letter dated March 11, 2002, the Board provided the following response to the Association:

As indicated, we are not in agreement with the interpretation provided in your letter of January 21, 2002 and the following reflects the [Board’s] interpretation based on the language in the collective agreement . . . .

1) Article 15:07

Based on the language in the collective agreement it is our position that the entitlement provided in 15:07 . . . would be reduced proportionally for any time off by the employee as identified in 15:09 . . . or as otherwise provided in the collective agreements where there is no accumulation of leave for defined periods.

. . . . .

We recognize that there is a disagreement regarding the interpretation of some of these provisions. We also recognize that the practice has not been consistent with some of these interpretations . . . . If it is our intention to change these practices, or the Association’s intent to challenge such practices, notification would be given during negotiations for a renewal collective agreement, recognizing the parties’ rights to contest any such action.

1. Employees will continue to be provided full vacation in year of retirement and this entitlement would not be reduced by utilizing the provisions of 15:09 . . . or any other provisions of the collective agreements.

In a letter dated February 9, 2004, the Board informed the Association as follows:

Further to that letter [i.e., the above March 11, 2002 letter to the Association], this is to advise that effective the date of a renewal collective agreement, the employer will cease the practice detailed in #1 of that letter. Based on the language in the collective agreement, the entitlement provided in 15:07 . . . would be reduced proportionally for any time off by that employee as identified in 15:09... or as

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otherwise provided in the collective agreements where there is no accumulation of leave for defined periods.

Following the above correspondence, the collective agreement was renewed by way of an interest

award dated October 5, 2004, for the period of time January 1, 2003 to December 31, 2004. Sgt.

Broadfoot agreed that subsequent to the Board’s letter of February 9, 2004, the Board has not

provided full vacation entitlement for the year in which a police officer retired and who was on long-

term disability in the year of retirement.

The Association argued that Article 15, when read as a whole, unambiguously requires that a police

officer is to receive his or her full vacation entitlement regardless if in receipt of LTD benefits in the

year of retirement. The Association submitted that art. 15:01 sets out what full vacation entitlement

officers are to receive and which entitlement is referred to in art. 15:07. Pursuant to articles 15:02

and 15:03, the entitlement is reduced on a pro rata basis should the officer leave the service or die,

respectively; however, the full entitlement as specified in art. 15:01 does not change, rather he or she

simply gets a portion of it. Articles 15:04, 15:05, 15:06 and 15:08 are not germane in the instant

case. Art. 15:07 is an exception to art. 15:02 in that it ensures that the vacation entitlement

identified and applicable in the year in which the officer retires on pension is not reduced. As to art.

15:09 it is simply another provision, like articles 15:02 and 15:03, which reduces an officer’s

vacation entitlement to an amount less than his or her full entitlement, but which provision does not

change the definition of full vacation entitlement set out in art. 15:01. In that respect, the language

of art. 15:09 is important viz., “The entitlement . . . in any calendar year shall be reduced” in the

circumstances specified in sections (i) (ii), (iii) and (iv). By way of the word “reduced”, it is clear

that in applying art. 15:09, one begins with the full entitlement, which now changes, then subtracts a

portion of it based on the length of time away from work. However, the full entitlement, itself, does

not change. Or, to use the language of Board counsel, there is a “set off” in art. 15:09 against the

full entitlement, and which interpretation is consistent with the Association position, i.e., the full

entitlement itself does not change under the wording of art. 15:09.

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As to the Board position that art. 15:07 is subject to art. 15:09, that analysis of the impugned

language is backwards. Art. 15:07 is a stand-alone provision and there is no language that says it is

subject to art. 15:09. Had the parties intended art. 15:07 to be subject to art. 15:09, they would have

said so, but they did not. That the parties are capable of expressing such an agreement is

demonstrated by way of the phrase in art. 15:01, i.e., “Subject to 15:10 . . .”, albeit which article

15:10 no longer exists. Moreover, art. 15:04 also demonstrates this ability on the part of the parties

if they so desire to make one clause subject to another where it states, “Except as otherwise provided

in 15:08 . . .” and, again, in art. 15:08, to wit: “The provisions of 14:05 (court time) will not apply to

any leave taken under this provision. Significantly, no such language or similar language is used in

regard to articles 15:07 and 15:09.

The Association argued that should the language of art. 15:09 be found to be ambiguous, the purpose

of that article supports its interpretation. Art. 15:07 clearly provides for a retirement benefit which

only applies in the year of retirement on pension and is akin to a thank-you for long service with the

Board, as testified to by Sgt. Broadfoot and which view is the Association’s position. In that regard,

art. 15:02 indicates that not all officers who leave their employment are entitled to a full vacation

entitlement; rather art. 15:07 only applies if the retiring officer qualifies for a pension. There is no

other explanation for the purpose of art. 15:07 other than it is a severance benefit and it would not

serve that purpose if the retiring officer who had been on LTD, or in another circumstance specified

in art. 15:09, did not get the benefit provided for in art. 15:07. Further, to the extent that past

practice in the form of extrinsic evidence may be used to aid in the interpretation of ambiguous

language, the Board’s correspondence to the Association of March 11, 2002 and February 9, 2004

demonstrates an interpretation that supports that of the Association.

The Association argued that the interaction, or lack thereof, between articles 15:07 and 15:09 offered

by it is the only one consistent with the provisions of the Human Rights Code, in particular the

prohibition against discrimination on the basis of disability. In the instant case, the Board seeks to

properly not provide a severance benefit due to a disability suffered on the part of the grievor, i.e., a

dis-entitlement based only on his disability. In that regard, the Association does not challenge in the

instant case the distinctions themselves provided for in art. 15:09. Rather, the Association disagrees

that art. 15:09 has application to art. 15:07. Sickness and disability are not choices that an employee

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makes voluntarily. And while articles 15:09 (iii) and (iv) do express or imply voluntary choice, they

are, nonetheless, subject to the Board’s discretion. That is, it is improper to say that because art.

15:09 also deals with leaves, disabled employees under art. 15:09 (i) and (ii) are in the same position

as those under art. 15:09 (iii) and (iv). On the other hand, the Association interpretation of art. 15:07

is consistent with the principles of the Human Rights Code. That being so, even those police

officers on a leave of absence under art. 15:09 (iii), and (iv) for that matter, all other things being

equal, are entitled to the benefits specified in art. 15:07. Thus, if it is accepted that art. 15:07 is

subject to art. 15:09, then it must be found that the collective agreement provisions are in violation

of the Code and, hence, the Board cannot use art. 15:09 to exclude officers who retire while on LTD

from receipt of the benefit provided for in art. 15:07.

In support of its position on the merits of the grievance, the Association submitted Re Mabey v. St.

Joseph’s Hospital [1999] N.B.L.A.A. No. 6 (Bruce); Re Parry Sound (District) Social Services

Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003]

S.C.J. No. 42, [2003] 2 S.C.R. 157 (S.C.C.); Re Peel Regional Police Services Board and Peel

Regional Police Association (August 7, 2001) unreported version (Kirkwood); Re Toronto Police

Services Board and Toronto Police Association (January 17, 2002) unreported version (Tacon); Re

Ontario Nurses’ Assn. v. Mount Sinai Hospital (2005), 75 O.R. (3d) 245, [2005] O.J. No. 1739 (Ont.

C.A.), and Re Ontario Nurses’ Assn. v. Mount Sinai Hospital (2004), 69 O.R. (3d) 267, [2004] O.J.

No. 162 (Ont. Div. Ct.) (the latter affirmed in the former).

The Board argued it does not matter whether one calls the benefit in art. 15:07 a pay-out or a

severance benefit, obviously, it is “a perk” an officer gets who retires on pension. The real issue is

the calculation that goes into determination of that benefit because a calculation may be needed. In

that respect, art. 15:01 establishes the unadjusted entitlement to vacation based on years of service

and, since art. 15:10 no longer exists, the reference in art. 15:01, “Subject to 15:10” is not relevant.

Articles 15:02 and 15:03 do not deal with an officer’s retirement but, rather, serve as contrast in the

instant case to art. 15:07. Unlike articles 15:02 and 15:03 where a pro rata calculation of vacation

entitlement is based on the part of the year when the officer leaves the service or dies, such

calculation is not made when the officer retires on pension. That is, all that art. 15:07 addresses is

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full vacation entitlement on retirement and the reason for the inclusion of art. 15:07 is to draw a

distinction between retirement on the one hand and resignation and death on the other; Art. 15:07

goes not further than that. However, going to the heart of all these above calculations is art. 15:09,

which provides that but for certain absences, what would have been the entitlement under articles

15:02, 15:03 or 15:07 may be reduced. There is nothing in the collective agreement to differentiate

the application of art. 15:09 to any of these other provisions, whether articles 15:02, 15:03 or 15:07,

and nothing that says art. 15:09 applies only to some of these circumstances or situations but not to

others.

The Board submitted that in applying the collective agreement, one must look to each of the

provisions in Article 15 to determine the entitlement and, then, against that entitlement apply the

criteria of art. 15:09. Art.15:09 is clearly a cost-saving measure and there is nothing in the collective

agreement to indicate that the Board has given up the right to save costs with respect to the special

case of an officer’s retirement. Succinctly stated, art. 15:07 is subject to art. 15:09, just as are

articles 15:01, 15:02 and 15:03. As to the Association position, that for any clause in the collective

agreement to be subject to any other clause such must be stated in order for that to be the case, that

view may be correct if there is no corresponding statement in the other or another provision.

However that is not the case here; the collective agreement is not broken down or structured in that

manner. If the Association interpretation is correct, then nothing in the collective agreement is

subject to art. 15:09 but that, however, does not make sense. The only way the collective agreement

provisions in Article 15 can be read logically is interpret them such that all the vacation entitlements

in that article are subject to art. 15:09 and there exists no need to specify further; it is what the

parties intended. It would be odd and lacking in common sense to interpret the relevant language in

dispute in such a way that an officer who has been on LTD for years, with no vacation accrual while

on LTD, to get his or her full vacation entitlement in the year he or she retires. Rather, art. 15:09

sets a limit on costs to the Board, and in the absence of language to the contrary there is no reason

for the Board not to limit its cost just because an officer is retiring as opposed to leaving the service

or dying.

The Board disagrees that its interpretation of the language of art. 15:07 and art. 15:09 amounts to

discrimination on the basis of disability concerning officers in receipt of Workers’ Compensation or

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LTD benefits in breach of the Human Rights Code. There is no issue that one purpose of the Code is

to prevent discrimination in employment by reason of disability. However, before one can

determine there exists discrimination, determination must be made as to which employee groups are

being compared and, as between those, assess whether or not there exists differential treatment on

the basis of disability. In that respect, the Association position compares disabled officers under art.

15:09 with able-bodied officers not falling within the provisions of art. 15:09. The Board argued it

might be prepared to agree with the Association analysis in two scenarios. First, if all the officers

covered by art. 15:09 were disabled and treated worse than able-bodied officers not covered or under

art. 15:09 provisions and, secondly, if art. 15:09 contained or covered able-bodied and disabled

officers and they were treated differently. However, art. 15:09 is made up of or addresses different

groups: (i) officers on workers’ compensation and/or on sick leave in excess of six uninterrupted

months; (ii) officers on LTD leave for any amount of time and which leave only commences upon

the expiry of sick leave credits; (iii) officers on unpaid leaves of absences in excess of twenty

consecutive days, and (iv) a “basket clause” the nature of which is clearly not limited to disability-

type situations. Also, the Board noted while the first two groups may or may not be made up of

disabled officers under the Code, they may contain officers who are disabled pursuant to the Code

but who do not fall under art. 15:09 because they are being accommodated in the workplace pursuant

to the Code provisions.

That is, it was submitted, art. 15:09 addresses various types of absences that flow from various

situations such that those officers falling under the provisions of art. 15:09 are not solely those who

are disabled, but includes a mixture of able-bodied and disabled officers. Thus, the relevant

comparator group is not those officers not under art. 15:09 and those who are under it. Rather, it is

under the provisions of art. 15:09 that one must determine whether or not disabled officers are being

treated more poorly than able-bodied officers, and the answer is they are not. Disabled officers are

treated the same as able-bodied officers with the slight caveat that disabled officers have a longer

waiting period before the provisions of art. 15:09 are applicable. Moreover, under the Union

interpretation, that slight benefit for disabled officers (that is, use of sick leave days prior to LTD

benefits reduces the portion of time by which vacation entitlement is reduced) would be exaggerated,

in that disabled officers would be removed from under art. 15:09 in that time in receipt of LTD

benefits would not reduce vacation entitlement and, thus, they would receive a benefit not available

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to able-bodied officers who may also be absent and to whom art. 15:09 would apply. Rather, since

every officer affected by art. 15:09 is the comparator group and given that all are subject to the same

treatment under that provision, there is no violation of the Code and no violation of it when the

benefits of art. 15:07 are subject to art. 15:09.

In support of its position on the merits of the grievance, the Board submitted Re Noranda Metal

Industries Ltd., Fergus Division v. I.B.E.W., Local 2345 et al. (1983), 44 O.R. (2d) 529, 84 C.L.L.C.

14,024, (Ont. C.A.); Re Int’l Ass’n Of Machinists, Local 1740 and John Bertram & Sons Co. Ltd.

(1967), 18 L.A.C. 362 (P.C. Weiler), and Re B.C.G.S.E.U. v. British Columbia (Public Service

Employee Relations Commission) (2005), 251 D.L.R. (4th) 73 (B.C.C.A.)

In reply, the Association argued that there exists a necessary link between art. 15:09 and articles

15:02 and 15:03 in that the link responds to the question, pro rata of what? There exists no such

link, however, between art. 15:07 which provides for full entitlement on retirement and art. 15:09

which addresses entitlement in certain situations. In short, articles 15:07 and 15:09 are very

different provisions. There is nothing odd concerning an officer’s entitlement to a severance benefit

based on long service even if off on LTD benefits for several years including the year of retirement.

Art. 15:09 applies to all officers on LTD whether on it for six months and a day or for a number of

years. If art. 15:09 excluded only officers on workers’ compensation or on LTD benefits, that is

clearly in breach of the Code. However, the Board cannot properly get around its Code obligations

simply by adding a separate category of officers on leaves of absence under art. 15:09 (iii),

particularly where there is no logical link between those officers and the right to receive severance

pay under art. 15:07. While denial of the art. 15:07 severance benefit to officers under art.15:09 (iii)

would be discriminatory, it would not be discrimination on a prohibited ground. There is no credible

explanation for providing a severance allowance under art. 15:07 to those who are disabled but able

to be accommodated in the workplace and those whose disability does not allow for accommodation.

The issue to be determined in this award is whether or not the Board breached art. 15.07 of the

collective agreement when it denied the grievor his “full vacation entitlement” in 2004, the year he

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retired on pension, because he was on LTD in that year pursuant to art. 15:09. I find the merits of

the grievance, on the evidence and submissions before me, require determination of the correct or

proper interpretation of the language of art. 15:07 and art. 15:09.

In Brown and Beatty, Canadian Labour Arbitration, 3d. loose-leaf ed. (Aurora, Ont.: Canada Law

Book, Inc.) para. 4:2100, the authors address the arbitral objective when required to interpret

collective agreement language, as follows:

As one arbitrator, quoting from Halsbury’s Laws of England, stated in an early award:

“The object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit.

. . . . .

But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used: to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation, equivalent to the intention.”

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.

In applying the above approach to the matter at hand, as previously provided for in this award, art.

15:07 states:

15:07 In the year an employee leaves on retirement with a pension from OMERS or COSF, the employee shall be entitled to full vacation entitlement for that year in either time off or by pay.

Thus, in the year when an officer retires, he or she is “entitled to full vacation entitlement for that

year in either time off or by pay”, on the condition the officer is retiring on an OMERS or COSF

pension. Reference must be made to art. 15:01 to determine a particular officer’s vacation

entitlement because the amount of vacation time is determined by years of service. Nonetheless,

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whatever an officer’s entitlement may be, art. 15:07 clearly and unambiguously provides for “full

vacation entitlement”. Thus, as the Union argued, the clear and unambiguous language of art. 15:07

indicates that the grievor is entitled to his full vacation entitlement for 2004 since he did retire in that

year and did so on pension.

There is no dispute, however, that in his retirement year of 2004, the grievor was on LTD. Art.

15:09 (ii) states:

15:09 The entitlement of an employee to vacation leave/pay in any calendar year shall be reduced on a proportionate basis for time off by the employee during that year on:

(ii) any amount of time off on Long Term Disability Leave;

The language of art. 15:09 (ii) clearly and unambiguously provides for a reduction in the amount of

an officer’s vacation entitlement “in any calendar year”, in proportion to “any amount of time off on

Long Term Disability Leave”. Moreover, similar to art. 15:07, application of this provision requires

reference to art. 15:01 to determine a particular officer’s amount of vacation. Application also

entails determination of the amount of time the officer has been off work on LTD, but which

application for purposes at hand does not entail reference to another collective agreement provision.

Thus, as the Board argued, the clear and unambiguous language of art. 15:09 (ii) indicates that the

grievor’s 2004 vacation entitlement is properly reduced on a proportionate basis in relation to the

amount of time he was off on LTD in 2004.

The above examination indicates that, for purposes at hand, both art. 15:07 and art. 15:09 (ii) contain

clear and unambiguous language. The former provides for “full vacation entitlement” in the year of

retirement, and, the latter states that vacation entitlement “in any calendar year shall be reduced on a

proportionate basis for any amount of time off on Long Term Disability Leave.”

There is an obvious conflict between the above two provisions when applied to the fact circumstance

at hand, i.e., that the grievor was on LTD in the year he retired. In that respect, the reduction of his

vacation entitlement under art. 15:09 (ii) conflicts with his entitlement to “full vacation entitlement”

under art. 15:07. Where there exists conflict between provisions in a collective agreement, certain

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approaches are used by arbitrators in aid of interpretation. For one, the “context in which words are

located is critical to meaning. Thus, it is said that the words under consideration should be read in

the context of the sentence, section and agreement as a whole” Re Brown and Beatty, supra, para.

4:2150.

In the instant case, Article 15 is entitled “Vacation Leave”. On a reading of Article 15 as a whole, it

is noted that articles 15:02, 15:03 and 15:09 address circumstances where an officer does not work a

complete year in the case of, respectively, leaving the service, dying, or, being absent on sick leave,

worker’s compensation, LTD, leave without pay for more than 20 days, and, “as otherwise provided

in this agreement” (of which no examples could be recollected by Sgt. Broadfoot). Under each of

these provisions a proportional adjustment is made to the amount of vacation entitlement which

includes a calculation based on the amount of time when the officer was not available for work. In

contrast, only art. 15:07 provides for no reduction in the amount of vacation entitlement in the

circumstance of, “In the year an employee leaves on retirement with a pension.” That is, the parties

are agreed that in a specific year, i.e., year of retirement on pension, there is to be no reduction in

vacation entitlement. In contrast, art. 15:09 identifies “any calendar year” where entitlement is

reduced due to, among other things, “any time off on Long Term Disability Leave”. That is, art.

15:07 is a specific provision in that it identifies a particular year, whereas art. 15:09 is a general

provision in that no specific year is identified. Thus, to the extent it can be said that art. 15:07 is a

specific provision and art. 15:09 is a general provision, art. 15:07 may be said “to prevail” over art.

15:09 Re Brown and Beatty, supra, para. 4:2120, cited as a usual arbitral presumption for purposes

of ascertaining the meaning of collective agreement language.

On a further reading of Article 15 as a whole, in art. 15:07 the parties use the word “full” in

identifying the retiring officer’s “vacation entitlement”. That entitlement arises, “In the year an

employee leaves on retirement with a pension . . .” Thus, for example, an officer who retires on

pension on January 1st with thirty years of service is entitled to vacation entitlement of “thirty-five

(35) working days” as determined by art. 15:01 (ix), i.e., “full” vacation entitlement. That amount of

vacation entitlement remains the same regardless of when the officer retires on pension in his or her

retirement year. Hence, it is solely the act of retirement on pension that mandatorily entitles a police

officer to his or her “full vacation entitlement” in the retirement year. In the instant case, the grievor

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did retire on pension on October 31, 2004. Therefore, on the clear and unambiguous language of art.

15:07, on performing that act he became mandatorily entitled to his full vacation entitlement for

2004. Accordingly, if the Board can properly reduce the grievor’s full vacation entitlement because

he was on LTD when he retired on pension, there must be language in art. 15:09 (ii) that properly

allows it to do so.

A review of the relevant language of art. 15:09 indicates, firstly, that no mention is made to the act

of retirement on pension. Also, there is no express language that establishes a nexus or link between

art 15:09 and 15:07 in either article. In contrast, where the parties have intended a link between

articles in Article 15, they have expressly done so. Art. 15:01 begins with the phrase, “Subject to

15:10 . . . .” While art. 15:10 no longer exists, the above phrase links art. 15:01 and art. 15:10 such

that the provisions of art. 15:01 are “subject to” art. 15:10. Similarly, the parties express a link

between the provisions of art. 15:04 and art. 15:08 where they state in the former, “Except as

otherwise provided in 15:08 . . .” In turn, art. 15:08 expressly connects its provisions to art. 14:05,

viz., “The provisions of 14:05 (court time) will not apply to any leave taken under this provision”.

Given this apparent ability on the part of the parties to express in a variety of ways a connection or

link between and among collective agreement provisions and articles, the absence of such language

between art. 15:07 and 15:09 indicates a lack of shared intention on the part of the parties to link

those two articles in some fashion or manner. In my view, had the parties intended that time off on

LTD would reduce an officer’s mandatory entitlement to full vacation entitlement on the act of

retirement on pension, such intention would require express language to that effect. The Board

submitted, however, that no express language is required to connect in the instant case art. 15:09 (ii)

with art. 15:07 given the clear language of art. 15:09 (ii). Had art. 15:07 not expressed that it is the

act of retirement on pension that entitles an officer to, expressly stated therein, “full” vacation

entitlement, I would view that submission as having merit. However, absent an express link

between the two provisions in question, and absent any reference to the act of retirement on pension

in art. 15:09, to suggest that an implied link exists requires language upon which that implication can

be found to exist. However, no such language is contained in art. 15:09.

Further, to the extent that a conflict between provisions in a collective agreement can be said to give

rise to a latent ambiguity, it is proper to consider the parties’ intentions when they agreed to the

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language they have chosen in writing their collective agreement. In Re Peel Regional Police

Services Board, supra, the arbitrator found that a provision in that collective agreement, art. 14:01,

“is capable of several interpretations” (p.22) and referred to Re Leitch Gold Mines Ltd. v. Texas Gulf

Sulphur Co., [1969] 1 O.R. 469 (H.C.J.) at p. 524, as follows, at p.22:

“Where the language of the document and the incorporated manifestations of initial intention are clear on a consideration of the document alone and can be applied without difficulty to the facts of a case, it can be said that no patent ambiguity exists. In such a case, extrinsic evidence is not admissible to affect its interpretation. On the other hand, where the language is equivocal, or if unequivocal but its application to the facts is uncertain or difficult, a latent ambiguity is said to be present. The term “latent ambiguity” seems now to apply generally to all cases of doubtful meaning on application . . . .

Extrinsic evident may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and to resolve it, but it is also to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it. Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties.

If the surrounding circumstances, however, do not explain the latent ambiguity an equivocation is said to be established, in which event, in addition to evidence of circumstances, direct evidence of the parties’ intentions may be received to resolve the equivocation.”

In the instant case, there is direct evidence of the parties’ intentions concerning articles 15:07 and

15:09 (ii). The undisputed evidence before me is that the entitlement to a full vacation entitlement in

art. 15:07 is intended to be a type of severance allowance in recognition of long service with the

Board. Nor is it disputed that art 15:09 is included in the collective agreement as a cost-saving

measure on the part of the Board.

Under the Association position, all officers who retire on pension after, for example, 25 years of

service, are entitled to their full vacation entitlement in the year of retirement. Under the Board’s

position, if a police officer with 25 years of service retires in a year when he or she has been off

work due to a disability, the severance allowance is proportionally reduced by the amount of time

off. Yet, if another officer, also with 25 years of service, retires in that same year but did not have

time off on disability, he or she would received the full severance allowance. That is, while both

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officers had the same amount of long service, the fact of disability on the part of one in the last year

of service reduces the severance amount. Moreover, under the Board’s interpretation, the amount of

severance allowance would vary for police officers who are on LTD depending on the date of their

retirement. For example, an officer with 25 years of service on LTD who retires on January 2nd

would have less of a proportionally-reduced severance allowance than another officer, also with 25

years of service and on LTD, who retires on March 1st. In that regard, under the Association

position, it matters not when an officer retires in the year of retirement.

Since the purpose or intent of art. 15:07 is to recognize long service with the Board, a denial of such

recognition based on the circumstances in only the last year of service of whether or not a long

service police officer has had time off on LTD, and, when in that year an officer on LTD performs

the act of retirement are not consistent with the intent clearly expressed by the parties in art. 15:07,

although it would be consistent with the intent of art. 15:09 (ii). However, the difficulty I have with

the Board’s position is that it fails to take into account the years of long service which preceded the

very last year of service and has the potential, depending on when in the year of retirement an officer

retires on pension, of denying any recognition by way of a severance allowance of a police officers’

many years of service due only to circumstances that appertain in the last year of service. In

contrast, the Association position provides for long service to be recognized by a severance

allowance in the form of full vacation entitlement irrespective of the circumstances of whether or not

the officer is on LTD and when in the year of retirement he or she performs the act of retirement. I

find the Association position is more consistent with the parties’ intention concerning art. 15:07 than

is the position of the Board.

The above examination of the language in dispute and of the intentions of the parties when they

agreed to that express language reveals that Art. 15:07 clearly and unambiguously provides for a

police officer to be mandatorily entitled to his or her full vacation entitlement in the year when he or

she retires on pension. There is no express or implied connection between art. 15:07 and art. 15:09

(ii). The Association position is more consistent with the intent of art. 15:07 than is the Board’s

position. I find, therefore, that the Association’s interpretation of the impugned articles is correct or

proper.

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Having found in favour of the Association position, it is not necessary to deal with its submissions

concerning the matter of discrimination on the prohibited ground of disability.

The grievance, therefore, is allowed. I find the Board breached art. 15:07 when it denied the grievor

his mandatory entitlement to full vacation entitlement in 2004, the year in which he retired with an

OMERS pension. By way of remedy, the grievor is to received his full vacation entitlement for the

year 2004.

I remain seized of my jurisdiction in the event the parties experience any difficulty in implementing

this award.

Dated at Toronto, this 20th day of June , 2006.

“William A. Marcotte” William A. Marcotte

Arbitrator