Kate A. Hughes

The Ontario Nurses' Association (ONA) sought an urgent interlocutory injunction against four long-term care (LTC) facilities experiencing COVID-19 outbreaks, alleging breaches of Chief Medical Officer of Health (CMOH) Directives regarding personal protective equipment (PPE) and infection control.

The ONA contended that the facilities failed to provide necessary PPE, particularly N95 masks, and implement appropriate administrative controls like isolating and cohorting residents and staff.

The facilities argued they complied with directives and that the ONA sought control over scarce resources.

The court found that the matter, though a labour dispute, required the court's inherent jurisdiction due to the inability to expedite arbitral processes.

Applying the RJR-MacDonald test, the court found a serious question to be tried and irreparable harm to nurses and residents.

The balance of convenience favored granting the injunction, prioritizing health and safety.

The court ordered the LTC facilities to provide nurses with access to N95 respirators and other appropriate PPE based on point-of-care assessment and to implement administrative controls as per CMOH Directives.

The Ontario Nurses' Association appealed a Divisional Court decision that had set aside an arbitrator's award regarding the interpretation of a collective agreement between the ONA and Toronto East General Hospital.

The dispute arose from the Hospital's closure of beds in a unit, which reduced available work hours for regular part-time nurses.

The Hospital spread the reduction across all part-time nurses without regard to seniority.

The arbitrator found this constituted a lay-off triggering the collective agreement's lay-off provisions, which require seniority-based reductions.

The Divisional Court reversed, finding the arbitrator's decision internally inconsistent and contrary to the collective agreement's terms.

The Court of Appeal allowed the appeal, finding the arbitrator's interpretation reasonable and consistent with the collective agreement's language and purpose.