Local 3252, 2012 ONSC 6245
DIVISIONAL COURT FILE NO.: 575/11
DATE: 20121012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY and LEDERER JJ.
B E T W E E N :
STERIPRO CANADA LIMITED PARTNERSHIP Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 3252, THE CREDIT VALLEY HOSPITAL and OWEN B. SHIME Respondents
Brian P. Smeenk for the Applicant
Steven Barrett for the Respondent Canadian Union of Public Employees, Local 3252
HEARD: October 12, 2012
REASONS FOR JUDGMENT
LAX J. (orally):
[1] The applicant (“Steripro”) is a company specializing in the sterilization of medical devices. The Credit Valley Hospital determined to contract out this service to the applicant. On March 31, 2011, Steripro and the hospital entered into a letter of intent confirming that Steripro would provide the service to the hospital. In the letter of intent, Steripro accepted that it would abide by the terms of the collective agreement that had been entered into between the Credit Valley Hospital and the respondent, Canadian Union of Public Employees, Local 3252. As part of the arrangement, Steripro understood that the employees of the hospital who engaged in the sterilization of the medical devices (“sterile processing technicians”) would be required to move their employment from the hospital to Steripro.
[2] On June 22, 2011, the hospital gave notice to its employees of its intention to contract out sterilization services to the applicant. The hospital and the union established a re-deployment committee in an attempt to address the issues associated with contracting out. The committee met on July 6 and July 13, 2011. During those meetings, the union took the position that the collective agreement did not allow the hospital to force employees to change employers and that any plan to contract out would trigger the layoff provisions of the collective agreement. Under those provisions the employees would be entitled to exercise their seniority rights.
[3] The union filed a grievance alleging that the contracting out proposal would breach the collective agreement. The matter was scheduled to be heard before Arbitrator Shime. The hearing proceeded on September 23 and September 29, 2011 (the “Shime hearing”). The applicant contends that it was not provided with formal notice or an opportunity to participate in the hearing.
[4] Arbitrator Shime issued his decision on October 21, 2011 and upheld the union’s grievance. He found that the sterile processing technicians were entitled to notice of layoff and to exercise their associated seniority rights under the collective agreement. It was determined that the Credit Valley Hospital did not have the right to choose an employer on behalf of its employees or to change their status to employees of the applicant. Employees who usually performed the work that was contracted out were not required to accept work with the applicant and could not be transferred without their consent. Moreover, Steripro was obligated to hire the employees who were ultimately laid off as a result of being “bumped” or displaced by those who chose to exercise those seniority rights under the collective agreement.
[5] The applicant seeks judicial review of the arbitrator’s award. In substance, the applicant says that it was denied natural justice as a result of the failure to provide it with notice of the hearing and the consequential loss of its right to participate in the process, a process which resulted in Arbitrator Shime determining that Steripro would be obligated to hire the employees who were ultimately laid off whether or not they were qualified to work as sterile processing technicians. The applicant seeks an order quashing the arbitrator’s decision and referring this dispute to a different arbitrator.
[6] At the same time as Credit Valley Hospital was planning to contract out its sterile processing technician employees to Steripro, Trillium Health Centre (“Trillium”) was making similar plans. That process was also grieved and the grievance was heard by arbitrator William Kaplan who issued an award on February 16, 2012. In that decision, Arbitrator Kaplan, like Arbitrator Shime, held that the hospital was bound by the layoff provisions of the collective agreement. The applicant, while not formally notified, participated in the Kaplan grievance hearing.
[7] On or about December 31, 2011, Trillium and Credit Valley merged into a single entity now known as the Credit Valley Hospital and Trillium Health Centre. Sterilization services were contracted out in accordance with the Shime and Kaplan awards. Some employees accepted the layoffs and went to work for Steripro; others took early retirement or voluntary exit packages; still others exercised their right to “bump” into other positions within the hospital. After the process was complete, the applicant was not required to hire any unqualified worker who had been displaced through this process. Nonetheless, it continues with this application for judicial review.
[8] The fundamental denial of natural justice on which the applicant relies is the fact that it did not receive formal notice of the grievance. However, it did have notice. The uncontradicted evidence before us is that the applicant knew there was to be a hearing. It knew when the hearing was to be held and it knew the issues that were in dispute. Also, during the course of the hearing, counsel for the applicant was in communication with counsel for the Credit Valley Hospital and specifically asked her whether he should attend the hearing. Counsel did not attend. The reasonable inference is that the applicant made a determination that it was content to leave it to the hospital to respond to the grievance.
[9] It is worth noting that although the applicant was not provided with formal notice of the grievance arbitration before arbitrator Kaplan, it nonetheless attended the hearing, sought leave to intervene and exercised its full rights of participation.
[10] In our opinion, the applicant had adequate notice of the Shime hearing. As the Court of Appeal has observed:
… it would be absurd to conclude that persons who were aware of their rights … can argue the action is a nullity because they were not put on notice of what they fully understood in sufficient time to avail themselves of the right: Calvert v. Salmon, [1994] O.J. No. 554 (C.A.) at paragraph 8; see also Sheppard v. The Ontario Racing Commission, 2011 ONSC 1932, 2011 O.N.S.C. 1932 at paragraph 5.
[11] This is enough to determine this application. There was no denial of natural justice. Had we found otherwise, we would nonetheless exercise our discretion to dismiss the application.
[12] Judicial review is a discretionary remedy; Volochay v. College of Massage Therapy of Ontario, 2012 ONCA 541, 2012 O.N.C.A. 541 at paragraph 52. The Shime arbitration addressed the interpretation of article 10.02 of the collective agreement. The arbitration proceeded on the assumption that any agreement the hospital entered into would meet the requirements of this article. The applicant and the hospital entered into a service agreement two months after the Shime Award was released. The parties were free to negotiate its terms bearing in mind the results of the arbitration. The contracting out has been completed and the applicant was not forced to hire any unqualified workers that were displaced as a result of being bumped. There is no longer any tangible dispute between the parties.
[13] For these reasons, the application is dismissed. Costs to the respondent in the amount of $7,500.
LAX J.
HAMBLY J.
LEDERER J.
DATE OF REASONS FOR JUDGMENT: October 12, 2012
DATE OF RELEASE: November 7, 2012
Local 3252), 2012 ONSC 6245
DIVISIONAL COURT FILE NO.: 575/11
DATE: 20121012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY and LEDERER JJ.
B E T W E E N :
STERIPRO CANADA LIMITED PARTNERSHIP Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 3252, THE CREDIT VALLEY HOSPITAL and OWEN B. SHIME Respondents
REASONS FOR JUDGMENT
LAX J.
DATE OF REASONS FOR JUDGMENT: October 12, 2012
DATE OF RELEASE: November 7, 2012