CITATION: Ontario Shores Mental Health Centre v. Ontario Public Service Employees Union, 2011 ONSC 6115
DIVISIONAL COURT FILE NO.: 399/10
DATE: 2011/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, PARDU AND HARVISON YOUNG JJ.
BETWEEN:
ONTARIO SHORES MENTAL HEALTH CENTRE
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
Ian R. Dick, for the Applicant
David Wright, for the Respondent
HEARD: September 28, 2011
HARVISON YOUNG J.
Overview
[1] The applicant employer (“Ontario Shores”) seeks judicial review of an arbitrator’s decision (the “Decision”) dealing with a number of grievances that had been brought under a collective agreement between it and the Ontario Public Service Employees Union (“OPSEU”).
[2] The issue at the heart of these grievances is the question of whether certain periods of leave run concurrently with layoff notices provided for in the collective agreement. This issue was framed as a policy grievance. The other three grievances concerned the same issue in relation to three individual employees, one of whom was on long term disability at the time she received her layoff notice, one of whom was on short term disability at the time, and one of whom was just about to commence pregnancy leave when she received her notice.
[3] The parties agreed that they would put their evidence before the arbitrator through an Agreed Statement of Facts, which were as follows:
(a) A collective agreement is in force between the parties to this grievance.
(b) This first collective agreement was negotiated subsequent to the divestment of the hospital from the Crown to the Whitby Mental Health Centre and subsequent to the voluntary recognition of OPSEU as the bargaining agent.
(c) The parties have agreed to consolidate four grievances before Arbitrator Newman.
(d) The policy grievance was filed on February 10, 2010, alleges a violation of Articles 5.01(f), 31 and 32 and arises out of notices of layoff to three employees located at the Centre’s Beacon House (Oshawa) location. Three individual grievances were filed on February 16, 2010, and February 21, 2010.
(e) On February 16, 2010, Ontario Shores issued notices of layoff to Kristi Armstrong and Norma Good. Ms. Armstrong is a part-time RPN and Ms. Good is a regular part-time Patient Care Attendant.
(f) On February 23, 2010, Ontario Shores issued a notice o layoff to Marilyn Flintoff. Ms. Flintoff is a full-time RN.
(g) One employee, Marilyn Flintoff went off on short term sick leave prior to receiving her notice. She subsequently returned to work on or around March 22, 2010.
(h) One employee, Norma Good is in receipt of long term disability benefits has no expected return to work date. She is suffering from a major disease which requires significant therapy. Ms. Good received the layoff notice while in receipt of LTD Benefits.
(i) The third employee, Kristi Armstrong is off on a pregnancy leave and is set to return to work on October 8, 2010. Ms. Armstrong received the layoff notice immediately prior to commencing pregnancy leave and after she had given notice of her leave.
(j) In a letter to the above noted employees, the employer confirmed that notice of layoff would be provided to an employee off on a leave and that any period of a leave would run concurrent with the four months layoff notice set out in Article 32.06. The issuance of a notice of layoff, however, would not affect any leave entitlement that the employee had under the collective agreement. Should the leave exceed the layoff notice period, the employer confirmed that the employee would not be required to make any decisions respecting their layoff entitlements until their return to work. The employer went on to confirm that the employee would have 14 days from the date of their return to work to make a decision in respect of the employee’s entitlements set out in Article 32.07. This position of the employer was set out in correspondence to the affected employees.
[4] The collective agreement sets out two periods of time in relation to layoff notices. Article 32.06 provides as follows:
In the event of a layoff, employees shall be laid off in the reverse order of seniority in their classification.
Employees shall be entitled to four (4) months written notice of permanent or long term layoff. To assist in this process layoff notices will contain, where possible, specific information on bumping options.
After receipt of such written notice, affected employees will have a period of up to fourteen (14) calendar days to indicate to the Centre their choice of options as outlined below.
The Centre agrees to meet with the affected employee(s) within fourteen (14) calendar days after it has received written notification of the employee’s choice of entitlement, in order to verify his/her choice.
[5] OPSEU’s position at the time of the arbitration was that the collective agreement, properly interpreted, does not provide that notice of layoff periods run concurrently with leave periods. It argued that the purpose of the four month period of layoff notice is clearly to permit employees time to plan for their futures, and that an employee who is on leave may well not be in a position to plan or take appropriate steps whilst on leave. It illustrated the point most strongly with the example of an employee who has been on long term disability, seriously ill, perhaps in a coma, for most of this four month period following the delivery of a layoff notice, and who would then be deprived of the benefit of a period of time to plan for his or her future.
[6] Ontario Shores took the position that the 4 month notice period does run concurrently with periods of leave, and that the 14 day period provided at Article 32.06 provides the necessary time for employees to make decisions. As this period, by agreement of the employer, is available to an employee who returns to work following any leave, even if the entire 4 month period has expired since the layoff notice was delivered, the concern about the employee who is unable to consider his or her options is addressed, because every employee will benefit from that 14 day decision making period upon returning to active employment.
Summary of Arbitrator’s Decision
[7] The arbitrator held that the case law clearly establishes that notice periods can run concurrently with periods of leave. She went on to find that, because the collective agreement must comply with the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (which is incorporated into the collective agreement under Article 15), notice periods cannot run concurrently with leave periods if to do so would be discriminatory. She declined to find that the concurrent operation of the leave and layoff periods would always be discriminatory, as OPSEU had argued it would be. Rather, she emphasized that this will depend on individual circumstances.
[8] The purpose of the layoff notice period, according to the arbitrator, is to permit time for employees to contemplate and plan for their futures. In some circumstances, if an employee on leave is unable to take advantage of this period in a manner similar to an active employee, the concurrent operation of the leave and the notice period may be discriminatory. Maternity leaves, in the ordinary course, are not likely to divert employees from considering their futures on a footing similar to that of active employees. Thus, the concurrent operation of maternity leaves and layoff notice periods would be presumptively permissible (i.e. not discriminatory) pursuant to the collective agreement. Short term disability might or might not divert employees from considering their futures as compared to active employees, but would depend entirely on individual circumstances. Long term disability, she held, would be likely to divert employees from the ability to consider and plan their futures during a concurrent layoff period, and would be presumptively discriminatory. However, notwithstanding what might ‘presumably’ be the case, the individual circumstances of a person on a Code-protected leave would determine whether the concurrence between the two periods is discriminatory.
Standard of Review
[9] The standard of review is governed by the test in Dunsmuir v. New Brunswick, 2008 SCC 9.
[10] As will be discussed further, to the extent that the arbitrator was interpreting the collective agreement and considering whether the operation of the notice and leave periods could be discriminatory, the appropriate standard of review is one of reasonableness.
[11] The applicant submits, however, that the arbitrator made some findings of fact in the complete absence of evidence to support those findings. Accordingly, it argues that the standard of review with respect to those findings is one of correctness in that an arbitrator making findings of fact in the complete absence of evidence to support those findings makes a jurisdictional error: Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.).
Grounds for review
[12] Ontario Shores submits that the Decision should be set aside on the basis of a number of errors made by the arbitrator, all of which bear on the question of whether the leaves may run concurrently with the layoff periods. It argues that the 14 day period operates as the essential decision making period, and the balance of the layoff period operates as the period during which the parties implement the decisions that they have made. As long as an employee who has been on leave during the notice period has the benefit of the 14 day period upon returning to work, the applicant submits, there can be no discrimination.
[13] OPSEU argues that the applicant’s position is flawed in that it fails to provide any relevant purpose for the four month layoff period. Pursuant to the collective agreement, the 14 day period lies at the beginning of the 4 month period. During this period, an employee must decide which option he or she will exercise. For example, the employee might decide to exercise “bumping” rights, in which case the balance of the four months will be used to implement bumping. Or the employee might decide to accept the lay-off and receive notice and severance, as per Article 32.07. In that case, the employee will use the balance of the four month period to plan for the future, such as by seeking alternate employment, or organizing financial affairs to reflect a change in income. Accordingly, depriving an employee who has been on leave of this longer period may be discriminatory, as the arbitrator found.
[14] The applicant submits that the arbitrator erred in making some findings without any evidentiary basis, and thus committed jurisdictional error. It also submits that her interpretation of the collective agreement was unreasonable, and that she failed to answer the policy question before her. These will be addressed in turn.
[15] For the following reasons, I conclude that the applicable standard of review is one of reasonableness, and that, as the Arbitrator’s decision in the circumstances meets this standard, the application must be dismissed.
The Evidentiary Issues
[16] Ontario Shores submits that the arbitrator had no evidentiary basis for her finding as to the purpose of the layoff notice provision in the collective agreement. It also submits that she erred in making findings as to the likely capabilities of employees during the three types of leave (maternity, short term and long term disability).
The purpose of the layoff provisions
[17] First, the applicant argues that the arbitrator’s finding that the parties agreed as to the purpose of the four month period was incorrect, and that accordingly, she made this factual finding without any evidentiary basis to do so.
[18] During the hearing, the parties acknowledged that, whether they had in fact agreed as to the purpose of the four month notice period, the arbitrator understood that they had so agreed. This is clear from the following paragraph of the Decision:
The Union articulates the purpose of the entitlement as providing an employee with a period of time to consider their financial position, and to plan their future. The Centre agrees, and argues that the period of time within which a person on leave, and a person on active service have to consider their financial position and plan their future is exactly the same. The purpose of the entitlement, it argues, is fulfilled regardless of whether the employee is working, or on leave. (Decision, page 22, Applicant’s Record, page 29).
[19] I agree with the respondent that it is implicit from the arbitrator’s reasons that she accepted that the purpose of the four month period is to “provide an employee with a period of time to consider their financial position, and to plan their future”. I do not agree with the applicant that in so accepting, she made a finding of fact without an evidentiary basis. Rather, her conclusion with respect to the purpose of the notice period is more properly understood as arising out of her interpretation of the collective agreement. Because she understood this to have been agreed between the parties, she did not explicitly frame the purpose as arising from her interpretation of the collective agreement.
[20] It is clear, however, that she did so interpret the collective agreement. For example, in the course of reviewing each of the three sorts of leave (see Decision, pages 26-28), she considered whether each generally puts an employee in a position that may divert them from the ability to have a meaningful opportunity to consider their finances and plan for their future.
[21] The interpretation of the parties’ collective agreement lies at the heart of an arbitrator’s expertise, expertise which is generally greater than the courts’, and which therefore attracts a deferential stance from a reviewing court: see e.g. Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 80 O.R. (3d) 1 (C.A.), at p. 19-20, leave to appeal refused, [2006] S.C.C.A. No. 281; Lakeport Beverages v. Teamsters Local Union 938, [2005] O.J. No. 3488 (C.A.), at para. 28. The applicant argued that the purpose of the four month period is one of “implementation” of the decision made by an employee, and not to permit an employee time to plan his or her future.
[22] It is clear, if implicit, from the reasons that the arbitrator understood this purpose to be evident from the collective agreement itself, notwithstanding any agreement by the parties on this point. She was clearly familiar with similar provisions in other collective agreements and the jurisprudence on the subject of whether leave and notice provisions could run concurrently.
[23] In my view, the purpose of the layoff notice period is a matter of interpretation of the collective agreement. According to it, the 14 day period operates at the beginning of the layoff period. It was clearly reasonable for the arbitrator to conclude that the scheme under the collective agreement contemplates that an employee will make specific decisions during the initial 14 day period, and then have the longer period for broader planning purposes, where relevant. Before this Court, Ontario Shores argued that the purpose of the notice period is to give the parties the opportunity to “implement” the decisions made during the initial 14 day period. That purpose is quite consistent with the Arbitrator’s reasons. While in some cases it may be that the employer requires the balance of the four month period for implementation purposes, in other cases, employees will require it for planning purposes. If an employee wishes to exercise bumping rights, it may take some time to implement that decision. But where an employee elects to take voluntary exit or severance, such a decision requires very little “implementation” on the part of the employer. Instead, the balance of the four months provides the employee with an opportunity to plan for the future, including by searching for a new job. As such, the choice of entitlement exercised by an employee who receives notice of layoff while on leave may determine the actual, practical purpose of the four month period in a particular case. In cases where all that is required is mere “implementation” by the employer of the decision made during the 14 day period (e.g. where the employee elects to bump a more junior employee), it may well be that no actual loss is suffered by an employee who is unable to meaningfully consider his or her options while on leave.
The Presumptions
[24] The applicant also submits that the arbitrator’s findings as to the likely capabilities of persons on the different sorts of leave went beyond the evidentiary basis set out in the Agreed Statement of Fact, and was thus also made without any evidentiary basis. In order to consider this submission, it is important to set out the arbitrator’s reasoning in relation to this issue. Her starting point was the need to interpret the collective agreement in a manner consistent with the Ontario Human Rights Code, as set out in Article 15 of the collective agreement. She stated as follows at page 24 of the Decision (Applicant’s Record, page 31):
In interpreting these provisions in a manner consistent with the Ontario Human Rights Code, I am satisfied that each option under article 32.07 must be put to, and must be available to each affected employee. As the individual begins to evaluate and weigh her options, she must have the actual and realistic ability to decide whether to accept layoff or not, to claim a vacancy, to transfer, or bump, to consider another option (such as the on the job training or voluntary exit), and must have the realistic ability to compare the practical impact of those options upon their own situation. If an individual is incapacitated, and thus diverted in a significant way, from the consideration of the options, because of a prohibited ground of discrimination, their access to the entitlement cannot be said to be equal.
[25] The arbitrator continued on to reject the union’s argument that “it will be in every circumstance of an employee on short term, long term, or parental leave that the distinction will generate a disadvantage” (Decision page 25, Applicant’s Record page 32). She concluded that the concurrent operation of a leave and the four months’ notice period could, but would not necessarily be, discriminatory. Assuming that the employer did not wish to extend the benefit of the full four month leave period to all employees returning to active service (by issuing a layoff notice only at that point), she stated that each of the three leaves of absence (forming the basis of the individual grievances) requires a “different sort of analysis” in order to be administered in a manner consistent with the Ontario Human Rights Code. Having reiterated that individual assessment and consideration are central to a human rights analysis, she continued to consider the three kinds of leave.
[26] With respect to maternity leave, she observed that the return to work date is usually predictable, and that generally speaking, such employees will have equal opportunity to meaningfully consider their financial circumstances and plan their futures as their peers who are in active service when they receive their layoff notices. Accordingly, she concluded that “routine facts” will lead to a presumption that the concurrent operation of four months’ notice of layoff with maternity leave does not constitute discrimination. As OPSEU notes, this presumption favours the applicant.
[27] As far as short term disability leave is concerned, the arbitrator held that when the temporary illness or disability is unexceptional, the employee on active duty and the employee on leave may have equal opportunity to consider their financial circumstances and their future plans. This may not be true in a situation where an employee is on short term leave but is facing, for example, extreme pain, challenges of physical rehabilitation or the impact of temporary disability on mental health. In such cases, the employee on leave may be diverted from the ability to consider and plan for the future in light of a layoff notice. She concluded that in short term disability cases, no presumption could be made and that individual circumstances would govern.
[28] With respect to long term disability, the arbitrator held that “it is likely that, by definition, the affected employee does not stand on equal footing with the employee on active duty” in that such an employee is likely to be diverted from the ability to consider her finances and plan for her future during the leave period. Again, she held that the individual facts will be determinative in each case. She went on to state that,
[c]ertainly an employee in the circumstances of Grievor Wood, suffering from major disease and requiring significant therapy, is sufficiently diverted by the reasons for her leave that discrimination would result if notice of layoff was considered to run concurrently with her period of leave. (Decision, page 28, Applicant’s Record, page 35).
[29] As the applicant points out, the evidentiary record consisted only of the Agreed Statement of Facts, which is set out above. It argues that there was therefore no evidentiary basis for the presumptions that she concluded would apply to the three types of leave. The flaw in this argument is the fact that the arbitrator did not make any findings of fact that depended on evidence that was not before her. Rather, she found that an employee’s rights to be free from discrimination could be violated if the layoff period ran concurrently with a period of leave if the individual employee was incapable of making meaningful use of the layoff notice by virtue of illness or disability.
[30] This is also true with respect to Ms. Wood. The Agreed Statement of Facts includes the details to which the arbitrator referred. She did not make a finding that the employer had, or had not, discriminated against Ms. Wood or the other two grievors.
[31] In my view, although she used the term “presumption” in relation to the three categories, a fair reading of her reasons makes it clear that she did not do so with the intention of predetermining individual cases. She did not intend to dictate a legal presumption. Throughout her discussion of the three categories, the reasons repeatedly stated that the individual facts and circumstances of each case must be considered. While it would have been preferable for her to avoid the word “presumption”, it is clear that the framework she sets out only suggests some common sense considerations for the parties to address. Any subsequent adjudication of these issues should not, accordingly, apply these considerations as legal presumptions. Rather, each case must be adjudicated on the basis of its own factual context as supported by the evidence.
[32] During the hearing before this Court, counsel for the employer used the example of an employee who was on long term disability in relation to carpel tunnel syndrome, while the union used the example of an employee who was in a coma throughout the layoff period. The arbitrator’s reasons in no way preclude the individual consideration of the circumstances of the employee who, although being on long term disability, is nevertheless quite able to consider his or her financial and employment future as an active employee could.
[33] In setting out general presumptions in relation to the different sorts of leave and how they might operate vis-à-vis the layoff notices, the arbitrator was seeking only to set out some general principles within the context of the collective agreement and the need to interpret its provisions in light of the Ontario Human Rights Code. As she stated at page 25 of the Decision (Applicant’s Record, page 32), each of the three leaves of absence will require a different sort of analysis “in order to be administered in a manner consistent with the OHRC”. She did not determine any matter on the basis of facts that were not in the record, nor did she conclude that the rights of any of the grievors had been violated. She did not make any finding as to the capability of any employee or class of employee. She remained seized of the matters. The manner in which the arbitrator would decide each individual grievance is indeterminable from the record, and thus, a review by this Court would be speculative.
[34] Seen this way, the arbitrator’s general discussion of the approaches to be taken to the three leaves arises from the heart of the interpretation of the collective agreement and falls within the sphere of specialized expertise to which this Court must accord significant deference, and with respect to which the standard of review is reasonableness: Dunsmuir.
[35] The arbitrator’s decision was reasonable, falling within a range of possible outcomes, and as discussed above, it discloses justification, transparency and intelligibility.
The Policy Grievance
[36] The applicant’s final argument is that the arbitrator failed to respond to the policy question of whether a leave may run concurrently with a layoff notice period pursuant to the collective agreement. It submits as follows:
The Decision only deals with the particular leave circumstances raised in the three individual grievances. It does not deal with the general question, as raised by the policy grievance, of whether or not issuing layoff notices when an employee is on any form of leave under the collective agreement is discriminatory (Applicant’s Factum, para. 58).
[37] In our view, the answer to the policy grievance is clear from a fair reading of the Decision. The arbitrator concluded that whether or not issuing layoff notices while an employee is on leave is discriminatory depends on the circumstances. The circumstances include the nature of the leave and the particular circumstances of the individual employee and whether or not the employee is able to meaningfully consider his or her finances and plan for the future during the leave period. While it would have been preferable for the arbitrator to clearly state this as the answer to the question, the standard of review is one of reasonableness, and in any event, a decision-maker’s reasons cannot be held to a standard of perfection upon review by this Court: see e.g. R. v. H.S.B., 2008 SCC 52, at para. 2; Canadian Recording Industry Assn. v. Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 322, at para. 40; McCormick v. Greater Sudbury (City) Police Service, 2010 ONSC 270 (Div. Ct.), at para. 116.
[38] The result in this matter is that neither the employer nor the union was entirely successful before the arbitrator. The union had hoped for a finding that the concurrent operation of the leave and layoff provisions was always discriminatory, while the employer had hoped for a finding that such provisions could always operate concurrently. The arbitrator concluded that each case must be determined on its own facts, although the nature and circumstances of some leaves might be more or less likely to divert an employee from the ability to consider and plan for the future than others. As a result, the conclusions of the arbitrator left no scope for a “yes” or “no” answer to whether the grievances should be allowed.
Conclusion
[39] In summary, in finding that the concurrent operation of the leave periods with the four month layoff period could be, but not necessarily would be discriminatory, the arbitrator was interpreting the collective agreement and did not make any findings of fact in the absence of an evidentiary foundation. She made no findings of fact regarding the specific capabilities of any of the grievors that extended beyond the Agreed Statement of Fact. In remaining seized of the matter, the particular facts and circumstances of each employee may be specifically addressed. The standard of review that is applicable is one of reasonableness. For the reasons set out above, I conclude that her decision was reasonable and satisfied the requirements of justification, transparency and intelligibility.
[40] Accordingly, the application is dismissed. As agreed between counsel, costs in the amount of $7,000.00 are payable to the respondent OPSEU.
Jennings J.
Pardu J.
Harvison Young J.
Released: December 08, 2011
CITATION: Ontario Shores Mental Health Centre v. Ontario Public Service Employees Union, 2011 ONSC 6115
DIVISIONAL COURT FILE NO.: 399/10
DATE: 2011/12/ 08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, PARDU AND HARVISON YOUNG JJ.
BETWEEN:
ONTARIO SHORES MENTAL HEALTH CENTRE
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
REASONS FOR JUDGMENT
The Court
Released: December 08, 2011