Court File and Parties
COURT FILE NO.: DV-07-0006 DATE: 2008-08-28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CJ Smith, Wright and McIsaac JJ.
B E T W E E N:
THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE, Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Respondent
Counsel: Roderick W. Johansen, for the Applicant Richard A. Blair, for the Respondent
HEARD: June 3, 2008, at Thunder Bay, Ontario
Reasons for Judgment
By the Court:
[1] This is an Application for Judicial Review.
[2] In January 2005, Karen Pulsifer was assigned as the Court Support Worker (CSW) for the Forensic Services Unit, then part of the Lakehead Psychiatric Hospital. At that time she was a member of the Ontario Public Service Employees Union (OPSEU).
[3] In March 2005, the entire Forensic Services Unit was transferred from the Lakehead Psychiatric Hospital to the Thunder Bay Regional Health Services Center. After that date, Ms. Pulsifer, as a Registered Nurse, fell under the collective agreement with the Ontario Nurses Association (ONA) as she continued her assignment as Court Support Worker.
[4] In August 2005, Ms. Pulsifer was asked to accept a secondment under article 11.12 (b) of the Ontario Nurses Association Collective Agreement to the position of “Acting” Manager of the Forensic Services Unit. Before accepting this position the consent of her union was obtained. It was agreed by management that upon completion of her secondment she would return to her previous assignment as the Court Support Worker. This appointment as Acting Manager was time-limited for about six weeks. On November 14, 2005 this appointment was extended until December 9 “. . . or until the status of the position has been determined.” On December 3, a permanent manager was appointed and Ms. Pulsifer notified all the staff in the Forensic Services Unit that she would be returning to her former assignment as the Court Support Worker as had been arranged. Her return to her former position as a Court Support Worker became effective on January 16, 2006 by direction of the new Unit manager.
[5] In the meantime, the grievor, Mr. Dorrance, a social worker and a member of the OPSEU, had been assigned to the Court Support Worker vacancy in the Forensic Unit. He took the position that his assignment was “permanent”. Subsequently, upon being directed to revert to his previous assignment which had not been “backfilled”, he filed a grievance with his union, which came before the arbitrator. The arbitrator held that the appointment of Mr. Dorrance as Court Support Worker was permanent and not a temporary arrangement so that Ms. Pulsifer could not return to her former position once her short term acting manager assignment was completed. In the result, Ms. Pulsifer could not go back to her former position as a Court Support Worker as it was now permanently assigned to Mr. Dorrance by the arbitrator acting pursuant to the OPSEU collective agreement.
Standard of review:
[6] Both parties agree that the standard of review is "reasonableness".
[7] In New Brunswick (Board of Management) v Dunsmuir the Supreme Court of Canada discussed reasonableness at paragraph 47:
“Reasonableness is a deferential standard animated by the principle that underlines the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and two outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.”
[8] With the utmost respect to the arbitrator in this case we have concluded that his decision does not fall “. . . within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law”.
[9] May Star General Contractors Inc. v. International Union of Painters and Allied Trades makes it clear that the highest level of deference is reserved for matters involving interpreting complicated statutory provisions and involving practices and procedures of which the court knows very little. This is not such a case.
Interpretation of article 23.01
[10] Article 23.01 of the OPSEU collective agreement provides:
- “supervisors or managers excluded from the bargaining unit shall not perform duties normally performed by members in the bargaining unit which shall directly cause or result in the layoff, loss of seniority or service or reduction in benefits to members in the bargaining unit.”
[11] The arbitrator held that the hospital was simply not permitted to assign duties normally performed by members of the bargaining unit to such excluded persons if there is a resulting detriment as specified in article 23.01. Under these circumstances, Ms. Pulsifer as a “manager” was not entitled to "bump" Mr. Dorrance back into his previous position.
[12] The arbitrator found that for a brief period in January 2006 when Mr. Dorrance went back to the hospital as a social worker in the Forensic Unit he was without any assigned work. The arbitrator concluded that this left him somewhere “just short of being actually laid off”. With the utmost respect, we do not agree with this inference and it was not reasonable to infer that the nature and amount of the work being performed by Mr. Dorrance in his home position as a social worker had any causal relationship to Ms. Pulsifer’s resumption of her former assignment as a Court Support Worker.
[13] In addition, there is some ambiguity as to whether the provision of the OPSEU collective agreement even applies in these circumstances and we have grave doubts that the word "manager" includes people who have been seconded to a short-term assignment that is described as a Temporary Full-Time Acting Manager with the consent of their union and who have returned to their original assignment upon completion of the secondment. The difficulty in this case arises because we have a conflict between two individuals each of whom is vying for the same assignment and each of whom belongs to a different union covered by a different collective agreement. It is the ONA Agreement which provided for this secondment even though proceedings before the arbitrator took place under the OPSEU collective agreement.
Conclusion that Mr. Dorrance had been permanently assigned Court Support Worker:
[14] The arbitrator correctly concluded that ". . . the key issue brought by the parties in this case is that concerning the tenure or status of Mr. Dorrance in the Court Support Worker's position." He concluded that the appointment of Mr. Dorrance to that position was permanent.
[15] In arriving at that conclusion the arbitrator proceeded on the basis that the onus was upon management to show that his appointment had been temporary.
[16] As grievor, Mr. Dorrance had the onus of establishing his allegation that his appointment as Court Support Worker was permanent. This was particularly true in this case where the vacancy had occurred only because of the temporary secondment of the previous incumbent and where the position of the grievor, who had replaced her, was not backfilled in the meantime.
[17] Moreover the arbitrator acted unreasonably in his interpretation and application of the evidentiary burden by reversing the onus when he held that:
"If it were the case that the grievor was "temporary" in the position of Court Support Worker, one would expect that there would be some clear evidence that his tenure was time-limited . . .”
[18] This error of reversing the onus, alone, would be enough to set aside the decision.
[19] However, the arbitrator went further. He held that ". . . there is, in fact, not a shred of evidence to support the contention from the hospital side that Mr. Dorrance came to occupy that position as the temporary incumbent."
[20] The arbitrator’s conclusion on this point was not reasonable. There was, in fact, rather compelling evidence that Mr. Dorrance came to occupy that position as the temporary incumbent:
- The movement of Ms. Pulsifer to the position of acting manager was not a transfer but was a “secondment” with the approval of her union.
- Her secondment was time-limited although that limit was extended.
- There was evidence from Ms. Lazinski that the position of Court Support Worker itself was not a permanent position but was a rather "an assignment".
- Her evidence was that it was generally understood that after serving in an acting position, the person involved would go back to his or her previous assignment.
- In assigning Mr. Dorrance to the CSW vacancy, the hospital did not follow the formal posting rules under Article 13 of the OPSEU collective agreement as required, had it been filling a position permanently.
- Ms. Pulsifer testified that she understood she would be in the acting manager’s position until the appointment of a permanent manager was made after which it was expected that she would return to the position of Court Support Worker.
- She further testified that there would have been no authority to inform Mr. Dorrance that his assignment as Court Support Worker was permanent because the position at the courthouse was not a permanent one and would need to be funded with the appropriate hiring and selection process applying.
- The position had always been filled through temporary transfers on "an assignment" basis but never on a permanent basis.
[21] The arbitrator held that ". . . since the work at the courthouse was necessary and being continued, it is reasonable to conclude that there was a vacancy, and that Mr. Dorrance was selected to fill the vacant position." There is no doubt that there was a vacancy and that Mr. Dorrance was selected to fill that vacant position. The question, as the arbitrator himself said, was whether that selection was intended to be permanent or temporary. The arbitrator held that “. . . that position is one the hospital requires to be filled on a continuing and, hence, permanent basis. In other words, the position itself is a permanent one, even if the incumbents come and go.” We do not accept this logic.
[22] Even if the position of Court Support Worker itself was permanent, the arbitrator failed to appreciate that it appears to have been intended to have been filled temporarily.
[23] As a result of this grievance we had two people claiming the same job under two different collective agreements. The previous incumbent in the position, Ms. Pulsifer had belonged to the Ontario Nurses Association. The position of Court Support Worker was not a classified position under the OPSEU agreement and the arbitrator found as a fact that neither the ONA nor the OPSEU had negotiated for representation of the position of Court Support Worker. Nonetheless, the grievance process and the arbitration itself proceeded pursuant to the OPSEU collective agreement and without either notice of the arbitration to the ONA or the participation of the ONA at the arbitration.
[24] Last, when OPSEU notified Ms. Pulsifer of the grievance, by letter dated June 16, 2006, the union indicated that Arbitrator Haefling would:
“ensure that your rights are protected to the degree that he would include you in the hearing and advise you of things you may not understand at various points in the proceedings.”
[25] When all these facts were disclosed to the arbitrator, natural justice dictated that notice be given to the Ontario Nurses Association to allow them to intervene to protect their member. This was not done and the arbitrator made an unreasonable error in failing to allow the ONA to be heard.
Order:
[26] An order will issue:
(1) Setting aside the decision of the arbitrator in this matter dated 29 January 2007. (2) Remitting this grievance to a new Arbitration Panel for a new hearing with notice of that hearing to be given to the Ontario Nurses Association by the grievor.
[27] Costs payable by the Ontario Public Service Employees Union. The scale and quantum are reserved to be determined after written submissions to be submitted within 30 days, if counsel cannot agree.
CJ Smith
Wright J.
McIsaac J.
Released: August 28, 2008
COURT FILE NO.: DV-07-0006 DATE: 2008-08-28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE, Applicant
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Respondent
REASONS FOR JUDGMENT
CJ Smith, Wright & McIsaac JJ.
Released: August 28, 2008