CITATION: Credit Valley Hospital v. CUPE, Local 3252, 2012 ONSC 7266
DIVISIONAL COURT FILE NO.: 521/11 and 128/12
DATE: 20121219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND DUCHARME JJ.
BETWEEN:
Court File No.: 521/11
THE CREDIT VALLEY HOSPITAL
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3252
Respondent
Court File No.: 128/12
AND BETWEEN:
THE TRILLIUM HEALTH CENTRE
Applicant
-and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 4191
Respondent
Ian R. Dick, for the Applicant,
Mark Wright, for the Respondent
HEARD AT Toronto: December 19, 2012
KITELEY J. (ORALLY)
[1] CUPE Local 4191 represents a bargaining unit of employees who worked at Trillium Health Centre, including employees who worked as Sterile Processing Technicians. CUPE Local 3252 represents a bargaining unit of employees who worked at The Credit Valley Hospital also including Sterile Processing Technicians. Local 4191 and Local 3252 are referred to as “the Union.”
[2] Before the merger of Trillium and Credit Valley, each hospital had announced its intention to negotiate an agreement with SteriPro Canada Ltd. to contract out the work of the Sterile Processing Technicians as a result of which the position of those technicians would be eliminated and those employees would be required to become employees of SteriPro.
[3] The Union took the position that the agreements with SteriPro violated the layoff provisions of the collective agreement which required the employer to give the Sterile Processing Technicians notice of layoff and apply the layoff provisions in Article 9.08 of the Collective Agreement, including bumping rights. The Union filed a grievance with respect to each hospital.
[4] On September 23 and 29, 2011, Arbitrator Owen B. Shime conducted an arbitration. The parties were the Union Local and Credit Valley Hospital. SteriPro did not attend nor participate. The arbitration proceeded on an Agreed Statement of Facts and included the fact that the employer had entered into an “Intent for Services” agreement with SteriPro. The parties agree that the Arbitrator should assume that the contracting out had occurred.
[5] On October 21, 2011, Arbitrator Shime issued an award in which he interpreted the language of the Collective Agreement and concluded that Credit Valley was required to comply with the layoff provisions of the Collective Agreement. In November 2011, Credit Valley filed this application for judicial review.
[6] On December 13, 2011 and January 21, 2012, Arbitrator William Kaplan heard the Trillium grievance. SteriPro participated in the hearing and called evidence and made submissions. Arbitrator Kaplan came to the same conclusion as had Arbitrator Shime. Trillium filed this application for judicial review.
[7] Effective December 1, 2011, the hospitals merged. These two applications for judicial review have been heard at the same time by the same panel.
Decisions of the Arbitrators:
[8] The issue before both Arbitrators was the interpretation of the contracting out term of the Collective Agreements in Article 10.01 and 10.02. Arbitrator Shime held that the employer had to issue layoff notices to affected employees before their jobs could be contracted out. Arbitrator Kaplan held that the contracting out resulted in a layoff entitling affected employees to notices of layoff and the exercise of their seniority rights that comes with the issuance of such notices.
[9] As indicated, Arbitrator Shime’s decision was based on an Agreed Statement of Facts while Arbitrator Kaplan received evidence on behalf of SteriPro which consisted of the testimony of the Manager of Production and Quality who explained the educational qualifications for the position, the language skills required, the training provided and the impact on SteriPro if it were required to take on unqualified individuals.
[10] The analysis of each Arbitrator is slightly different. However, for purposes of these applications for judicial review, those differences are immaterial.
Standard of Review:
[11] The parties agree that the reasonableness standard applies to these applications. Deference is warranted with respect to the interpretation of a collective agreement that comes within the traditional expertise of the arbitrator and where the arbitrator has developed particular expertise in the subject matter.[^1]
[12] The reviewing Court is obliged to look at both the reasoning process employed by the decision-maker and the outcome itself. In order for the decision to be reasonable, the reasons must display justification, transparency and intelligibility. The outcome must come within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.[^2]
Analysis:
[13] Both Arbitrators reviewed the relevant provisions of the Collective Agreement including Article 9.08 on layoff and Article 10.01 and 10.02 on contracting out. Both considered the history of the language on contracting out including the Mitchnick Interest Arbitration Award dated May 31, 1996. Both considered the importance of seniority rights in a collective agreement and the authorities which articulate the principle that employees are entitled to choose their own employer and that this right can only be eliminated by express or specific language.
[14] Arbitrator Shime considered the Agreed Statement of Facts from which he drew an inference that the hospital’s communications with its employees acknowledged that it was eliminating positions. Arbitrator Kaplan considered the evidence led on behalf of SteriPro as well as the decision of Arbitrator Shime from which he quoted extensively.
[15] The interpretation of the Collective Agreement, including the provisions dealing with contracting out and layoffs lies within the particular expertise of Arbitrators. A high degree of deference is warranted.
[16] The applicants rely heavily on the Mitchnick Interest Arbitration Award. However, that is not determinative of the interpretation of Article 10.02 of this Collective Agreement for the reasons indicated by Arbitrator Kaplan at p. 21 of his Award which I quote:
Arbitrator Mitchnick awards Article 10.02 “as a less ambiguous and more direct way of achieving the principles currently embodied in the clause…(at 12, emphasis mine). Assuming for the sake of argument that Arbitrator Mitchnick’s observations are legally significant, one could not easily conclude that he used the word “displaced” in the provision either to avoid application of the layoff provisions or to require displaced employees to follow their jobs. Arbitrator Mitchnick clearly sought “a more effective and predictable way to carry out the objectives that the present clause was intended to achieve” (at 6). But the history of the provision does not support the conclusion that there was any intention to compel employees displaced from their positions to follow the work to the new employer.
[17] Based on the reasoning processes and the outcomes, we are satisfied that the decisions are reasonable. The reasons display justification, transparency and intelligibility. The outcome each reached comes within the range of possible acceptable outcomes which are defensible in respect of the applicable facts and the law.
[18] The applications for judicial review are dismissed.
COSTS
[19] On the back of each of the Application Records, the endorsement is the same, “Application is dismissed. Applicant shall pay costs fixed at $5,000 all in.”
KITELEY J.
SWINTON J.
DUCHARME J.
Date of Reasons for Judgment: December 19, 2012
Date of Release: December 21, 2012
CITATION: Credit Valley Hospital v. CUPE, Local 3252, 2012 ONSC 7266
DIVISIONAL COURT FILE NO.: 521/11 and 128/12
DATE: 20121219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND DUCHARME JJ.
BETWEEN:
Court File No.: 521/11
THE CREDIT VALLEY HOSPITAL
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3252
Respondent
Court File No.: 128/12
AND BETWEEN:
THE TRILLIUM HEALTH CENTRE
Applicant
-and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 4191
Respondent
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: December 19, 2012
Date of Release: December 21, 2012
[^1]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 54
[^2]: Dunsmuir, supra at para. 47