Canada ( Attorney General ) v. MacAdams
T-2763-95
Cullen J.
25/11/96
10 pp.
Application for judicial review of adjudicator's decision upholding respondent's grievance and finding inequitable distribution of standby as result of employer restricting standby list to military personnel-Respondent civilian employee of DND covered by collective agreement providing (clause 29.09) equitable distribution of standby duties-Although provision applied to civilian personnel only, in practice, standby list included both civilian and military technicians-In order to meet new Salary Wage Envelope requirements, Commanding Officer removed civilian employees from standby list-Adjudicator held clause 29.09 ambiguous respecting equitable distribution of standby duties and concluded had been inequitable distribution thereof when applicant had included only military personnel on list-Application dismissed-Application of Metropolitan Toronto (Mun.) and C.U.P.E., Local 43, Re (1983), 13 L.A.C. (3d) 58 (Ont. L.R.B.) where held that insertion of deliberately vague term in collective agreement indicating parties intended to work through, on consensual basis, meaning to be given to term-In instant case, conduct of both parties showed meaning given to deliberately vague term "equitable basis" in clause 29.09 between 1991 and 1994 that respondent was on standby list, new meaning cannot now be given to clause 29.09-For same reasons, adjudicator also found meaning of clause 29.09 ambiguous-Extrinsic evidence of parties' conduct revealing latent ambiguity of provision-Extrinsic evidence admissible as aid to interpretation where contract latently or patently ambiguous-Adjudicator's finding of ambiguity supported by evidence, no reason to interfere-No error in law warranting intervention-Managerial rights not overriding specific provisions of collective agreement on standby duty-Although no guarantee bargaining unit employees will be provided with standby duties, employees cannot suddenly be deprived of access to bargained-for provision-Equitable distribution of standby duties clause still exists, and employer must adhere to it-Applicant submitted since standby duties assigned to military personnel only as of August 1995, clause 29.09 of no further use or effect, as people to whom directed no longer covered by it, and because military personnel (neither employees nor members of bargaining unit, and who could, therefore, have standby assignments) not subject to equitable distribution requirement-However, by virtue of three-year practice, understanding between employer and bargaining agent whereby both civilians and military personnel would be placed on standby list-Not possible to get rid of significant provision in collective agreement without negotiation-In view of curial deference, adjudicator's finding on ambiguity supportable by evidence and, therefore, not subject to judicial intervention.