CITATION: Ontario Nurses Association v. St. Michael’s Hospital, 2011 ONSC 3369
COURT FILE NO.: 286/10
DATE: 20110606
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, BALTMAN and lederer JJ.
B E T W E E N:
ONTARIO NURSES ASSOCIATION
Applicant
- and -
ST. MICHAEL’S HOSPITAL
Respondent
Elizabeth McIntyre, for the Applicant
Brian P. Smeenk, for the Respondent
HEARD at Toronto: April 15, 2011
Swinton J.:
Overview
[1] The Ontario Nurses Association (“ONA”) has brought an application for judicial review of an arbitration award dated April 17, 2010, in which Arbitrator F.M. Reilly (the “Arbitrator”) dismissed a policy grievance concerning entitlement to early retirement and separation allowance options in connection with the issuance of notice of long-term layoffs.
Factual Background
[2] ONA and the respondent, St. Michael’s Hospital (“the Hospital”), are parties to a collective agreement that is composed of a central portion (“the Central Agreement”) and a local portion.
[3] As set out in an Agreed Statement of Facts before the Arbitrator, the Hospital gave notices of long-term layoff to ONA and seven nurses who held assignments on the I.V. team in November 2008. Ultimately, the layoffs were rescinded, as they became unnecessary for various reasons.
[4] The individual layoff notices were accompanied with an option form, listing the following options for the nurse:
• accept a layoff
• retire under the terms of the applicable pension plan
• transfer to a vacant position
• displace another nurse who has lesser bargaining unit seniority.
[5] At the time in question, there were vacancies and other nursing assignments available in the Hospital that the affected nurses were qualified to perform.
The Collective Agreement Provisions
[6] ONA proceeded with a policy grievance, taking the position that the Hospital was required to give further options of early retirement and separation allowances in accordance with Article 10.14 of the Central Agreement. That article reads:
10.14 Human Resource Plans, Early Retirement and Separation Allowances
(a) Local Human Resource Plans will apply to Health Services Restructuring Commission directives and integrations, provided that in the case of integrations, this Article will apply only to a hospital which is also bound by this collective agreement as well as the Local Human Resources Plan. In other circumstances, the balance of this Article will apply.
(b) Before issuing notice of long-term layoff pursuant to Article 10.08(e)(ii), and following notice pursuant to Article 10.08(e)(i), the Hospital will make offers of early retirement allowance in accordance with the following conditions:
(i) The Hospital will first make offers in order of seniority on the unit(s) where layoffs would otherwise occur.
(ii) The Hospital will make offers to nurses eligible for early retirement under the Hospital pension plan (including regular part-time, if applicable, whether or not they participate in the hospital pension plan).
(iii) The number of early retirements the Hospital approves will not exceed the number of nurses who would otherwise be laid off.
A nurse who elects an early retirement option shall receive, following completion of the last day of work, a retirement allowance of two (2) weeks’ salary for each year of service, to a maximum ceiling of fifty-two (52) weeks’ salary.
(iv) If a nurse(s) on the unit referred to in paragraph (i) does not accept the offer, the Hospital will then extend the offer, in order of seniority, to eligible nurses in the unit where a nurse who has been notified of a long-term lay-off elects to displace in accordance with Article 10.09 (b) ii) (D) and one subsequent displacement. The Hospital is not required to offer early retirement allowances in accordance with this provision on any subsequent displacements i.e., the offer shall follow the displaced nurse, to a maximum of two displacements.
(c) Where a nurse has received individual notice of long-term layoff under Article 10.08 such nurse may resign and receive a separation allowance as follows:
(i) Where an employee resigns effective within thirty (30) days after receiving individual notice of long-term layoff, she or he shall be entitled to a separation allowance of two (2) weeks salary for each year of continuous service to a maximum of sixteen (16) weeks’ pay, and, on production of receipts from an approved educational program, within twelve (12) months of resignation will be reimbursed for tuition fees up to a maximum of three thousand ($3000.00) dollars.
(ii) Where an employee resigns effective later than thirty (30) days after receiving individual notice of long-term layoff, she or he shall be entitled to a separation allowance of four (4) weeks’ salary, and, on production of receipts from an approved educational program, within twelve (12) months of resignation will be reimbursed for tuition fees up to a maximum of one thousand two hundred and fifty ($1,250.00) dollars.
[7] This article makes reference to parts of Article 10.08, which is headed “layoff definition and notice”, and Article 10.09, which is headed “layoff process and options”.
[8] Article 10.08 defines short-term layoff and long-term layoff and then in Article 10.08(e) sets out the notice requirements to ONA and to the affected employees.
[9] Article 10.09 provides for layoff in the reverse order of seniority. It provides, in Article 10.09(b)(ii), as follows:
Nurses shall have the following entitlements in the event of a layoff;
(ii) A nurse who has been notified of a long-term layoff may:
(A) accept the layoff; or
(B) opt to retire if eligible under the terms of the Hospital’s pension plan as outlined in Article 17.04; or
(C) elect to transfer to a vacant position provided that she or he is qualified to perform the available work; or
(D) displace another nurse in any classification who has lesser bargaining unit seniority and who is the least senior nurse on a unit or area whose work the nurse subject to layoff is qualified to perform.
The Arbitrator’s Decision
[10] The Arbitrator found that Article 10.14 provides specific benefits that flow to nurses subject to layoff as a result of integrations and/or rationalizations. In doing so, he made reference to Article 10.13, which is headed “Integrations/Rationalization”. He quoted from the first paragraph of that article, which states,
To minimize the adverse impact of integration on employees, the parties agree that a standardized approach to Human Resources Adjustment Planning should be used, including the development of provincial standards and principles.
[11] Reading the collective agreement as a whole, he concluded that Article 10.14 “then provides specific benefits that flow to employees subject to layoff as a result of integrations and/or rationalizations” (Reasons, p. 18). In his view, Article 10.14(a) describes the circumstances that trigger the entitlement to the early retirement and separation allowances that follow in Article 10.14 - namely, Health Services Restructuring Commission directives and integrations that result in long-term layoffs.
[12] The Arbitrator accepted the Hospital’s argument that layoffs resulting from other reasons would trigger the requirements of Articles 10.08 and 10.09, but not those in Article 10.14, and therefore, he dismissed the policy grievance.
[13] In reaching his conclusion, the Arbitrator considered other arbitration awards cited to him and explained they were of little assistance, “because the application of article 10.14 language was neither in dispute nor the subject of the arbitrator’s direct attention” (Reasons, p. 19).
The Standard of Review
[14] The parties agree that the standard of review is reasonableness, given that the Arbitrator was interpreting the language of the collective agreement.
Was the Decision Reasonable?
[15] ONA argues that the Arbitrator failed to give effect to the plain language of Article 10.14(a). As well, he has, in effect, amended the collective agreement by adding a proviso to that provision and reading out other words.
[16] ONA argues that Article 10.14(a) identifies Health Services Restructuring directives and integrations only in order to exempt Health Services Restructuring directives and certain integrations from the application of Articles 10.14(b) and (c), and to allow nurses in those situations access to entitlements under Local Human Resource Plans. According to ONA, the Arbitrator failed to give effect to the words “in other circumstances” in Article 10.14(a).
[17] In my view, the Arbitrator reached a decision that falls within a range of reasonable, acceptable outcomes, given the language of this collective agreement. He concluded that Articles 10.08 and 10.09 are general provisions dealing with layoffs. In contrast, Article 10.14 follows a provision dealing with integrations and rationalization. It is a specialized provision to deal with layoffs resulting from integrations and rationalizations. He stated,
there would be no purpose in the parties having separate and different provisions if the requirement to offer certain retirement benefits as found in one of these provisions, in particular, in Article 10.14, was triggered in all cases of long-term layoff...
[18] This was a reasonable conclusion, and not only because of the placement of the provisions on early retirement allowances and separation allowances. It is also noteworthy that Article 10.09(b)(ii) specifies the options to be offered to a nurse in the notice of long-term layoff. Those options do not include a separation allowance. The Arbitrator reasonably concluded that the richer benefits in Article 10.14 were to be applied in limited circumstances.
[19] ONA argues that the Arbitrator failed to give effect to the language of Article 10.14(a) and, in particular, “in other circumstances” in its last sentence. I disagree. While it is true that the Arbitrator does not refer specifically to “in other circumstances”, he gave a reasonable interpretation to the words of the provision.
[20] The Arbitrator looked at the heading of the article as well as its language. He concluded that the words of Article 10.14(a) describe the circumstances for the application of the remainder of Article 10.14. It provides that Local Human Resources Plans are to apply to Health Services Restructuring Commission directives and integrations, but with a proviso: in an integration, the article applies only to a hospital bound by this collective agreement as well as the Local Human Resources Plan. The last sentence then states that in other circumstances, the balance of the article applies. “Other circumstances”, according to the Arbitrator, refers to other directives and integrations, as described in Article 10.13, that cause long-term layoffs.
[21] In my view, that is a reasonable interpretation of the words of the article, read in the context of Article 10 as a whole. It was reasonable for the Arbitrator to take note of the placement of the early retirement and separation allowance provisions in a section separate from the general provisions defining layoff and the procedure to be used on layoff. It is also of note that following the general layoff provisions in Articles 10.08 and 10.09, the collective agreement deals with recall (10.10), transfer outside the bargaining unit (10.11), work of bargaining unit/agency nurses (10.12) and then integration in 10.13.
[22] In reaching my decision, I have not considered the prior interest arbitration awards that led to the collective agreement language, which ONA included in its Book of Authorities. In effect, this material is put forward as extrinsic evidence to aid in interpretation. As this evidence was not before the Arbitrator, it is not admissible on this application for judicial review (Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 514 (C.A.)).
[23] The Arbitrator reasonably distinguished the other cases referred to him: St. Mary’s General Hospital & Royal Victoria Hospital (Devlin, unreported, April 17, 2001); ONA and Sault Area Hospital (Beck, unreported, December 16, 2004); ONA and Rouge Valley Health System (Tims, unreported, December 17, 2008); ONA and Lakeridge Health Corporation (Starkman, unreported, December 31, 2007). In those cases, the arbitrators did not address the issue of whether the layoffs were the result of an integration, nor did they address the interaction of Articles 10.14 and 10.09. Rather, they addressed issues of the grievors’ entitlement to benefits under Article 10.14 or a predecessor because of a layoff.
[24] At the hearing of this application, ONA’s counsel referred the Court to a more recent arbitration award, Quinte Health Care and Ontario Nurses’ Association (unreported, March 21, 2011), in which Arbitrator Slotnick expressed the opinion that the interpretation adopted by Arbitrator Reilly in this case was wrong and
flies in the face of the clear wording of the language, which, by referring specifically to the notices in 10.08(e), makes the early retirement and separation allowances applicable in all cases where there is a proposed layoff of a permanent or a long-term nature or elimination of a position and there are affected employees. In my view, the language cannot bear any other interpretation, and its placement after 10.13 - admittedly detached from where one might expect it - is not material, considering the specific reference back to Article 10.08 (at pp. 42-43).
I note that Arbitrator Slotnik made no reference to Article 10.14(a). Indeed, he did not include it in the collective agreement provisions he quoted in his award (see p. 9).
[25] The principle of stare decisis does not operate among labour arbitrators (Re International Union of Electrical Workers & Canadian General Electric Co. Ltd., [1959] C.L.A.D. No. 1 (Laskin) at para. 13). Therefore, the Arbitrator in this case was not bound by the earlier decisions he distinguished, just as the arbitrator in the Quinte case was not bound by the interpretation of Arbitrator O’Reilly.
[26] The issue in this application is the reasonableness of the interpretation reached by Arbitrator Reilly. In my view, his reasons meet the requirements of intelligibility, transparency and justification, and the result is within a range of possible, acceptable outcomes given the language of the collective agreement, even if another arbitrator disagrees, as there can be more than one reasonable outcome.
Conclusion
[27] Therefore, the application for judicial review is dismissed. Costs to the Hospital are fixed at $5,000.00, as agreed by the parties.
Swinton J.
Baltman J.
Lederer J.
Released: June 6, 2011
CITATION: Ontario Nurses Association v. St. Michael’s Hospital, 2011 ONSC 3369
COURT FILE NO.: 286/10
DATE: 20110606
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, Baltman and lEDERER jj.
B E T W E E N:
ONTARIO NURSES ASSOCIATION
Applicant
- and -
ST. MICHAEL’S HOSPITAL
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: June 6, 2011