Ontario Nurses’ Association v. Rouge Valley Health System, 2014 ONSC 1590

Rouge Valley Health System, 2014 ONSC 1590

DIVISIONAL COURT FILE NO: 132/13

DATE: 20140318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RADY, HARVISON YOUNG and WHITAKER JJ.

B E T W E E N:

Ontario Nurses’ Association Applicant

• and –

Rouge Valley Health System Respondent

Elizabeth McIntyre & Hugh O’Reilly, for the Applicant

Frank Cesario & Jacqueline Luksha, for the Respondent

HEARD: January 14, 2014

WHITAKER J.:

Introduction

1This is an application for judicial review of a labour arbitration award by arbitrator J. Stout dated Feb 10, 2013. The parties to the arbitration were the Ontario Nurses’ Association (the “union”) and the Rouge Valley Health System (the “hospital”).

2The hospital employs full and part time nurses, both groups represented by the union.

3The parties put four grievances before the arbitrator. All dealt with a common issue – namely the arbitrability of the hospital’s pension contribution deduction for nurses in the bargaining unit. The union claimed that the hospital failed to make appropriate pension contributions and that this issue should be decided by the arbitrator.

4At the outset, the hospital took the position that the arbitrator lacked the jurisdiction to hear the dispute.

5Following a hearing on the preliminary matter, the arbitrator agreed with the hospital and decided that he lacked jurisdiction over the four grievances. In the arbitrator’s view, the collective agreement did not contemplate that the dispute between the parties was one that could be raised and determined by the arbitrator.

6The grievances were dismissed.

7For the following reasons, this application is dismissed.

Overview

8The union represents more than 48,000 nurses and health care professionals in Ontario. The hospital employs over 1,000 nurses.

9The parties participate on a province wide basis in a pension plan (“HOOPP”). Participation is mandatory for full time nurses and optional for part time nurses. The pension plan contemplates that both nurses and the hospital contribute on behalf of nurses to a defined benefit plan. The plan sets the formula and mechanism to determine the level of contributions. It is the hospital’s obligation to make and administer these contributions. The hospital is charged to deduct the nurses’ contributions to the plan, as part of the payroll process.

10The collective agreement between the parties contains a “central” portion and a “local” portion. The central portion is negotiated between the union and province-wide with 137 participating hospitals. The participating hospitals are represented in central bargaining by the Ontario Hospital Association. The balance of the collective agreement is negotiated locally between the union and this hospital only.

11The union put four grievances before the arbitrator – one union grievance and three individual grievances.

12The subject matter of this dispute arises in the central portion of the collective agreement which means that the same issues are present in other hospitals and health care facilities that also bargain centrally. In other words, these particular provisions apply to all other nurses in the province employed by the participating hospitals and represented by the union.

13At the outset of the hearing, the hospital argued as a preliminary matter that the arbitrator lacked jurisdiction to hear the four grievances put before him by the parties. The hospital took the position that identical objections had been made successfully by two other participating hospitals in other grievances, heard by two other arbitrators. The hospital argued that this issue has been determined in the other two arbitration proceedings and the union was attempting to re-litigate by “taking another kick at the can”.

14The outcome sought by the hospital is consistent with the awards of the two other arbitrators who heard the same issues.

15More particularly, the common issue shared by the four grievances was the assertion by the union that the hospital was making incorrect pension deductions on behalf of those nurses participating in the plan.

16As a preliminary matter, the hospital submitted that the arbitrator did not have the jurisdiction to hear and determine the issues in dispute. The hospital suggested that the affected employees could raise these issues with the plan administrator (the “administrator”) directly and that responsibility for ensuring the accuracy of payroll contributions rests with the administrator. The hospital argued that the terms of the plan were not incorporated into the collective agreement and for that reason, the parties did not intend these types of disputes to be adjudicated by a rights arbitrator under the provisions of the collective agreement.

Standard of Review

17The parties agree the standard of review is one of reasonableness.

Other Arbitration Awards

18Among other authorities, the hospital relied on two other awards made by arbitrators appointed to deal with identical grievances arising from the same collective agreement language governing the collective bargaining relationship with the union and other participating hospitals.

19The first of these two awards is that of arbitrator J. Parmar in the matter of West Parry Sound Health Centre and Ontario Nurses Association, dated November 4, 2010. The second award is that of arbitrator R. Howe in the matter of Grand River Hospital Corporation and Ontario Nurses Association, dated November 4, 2010.

20In both awards, the arbitrators determined that the hospital’s obligations to remit pension contributions under the same collective agreement and the same pension plan were not arbitrable. Both concluded that the provisions of the plan were not incorporated into the collective agreement.

21Having regard to the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] S.C.J. No.59 and other authorities relying on the analysis in Weber, the two arbitrators concluded that the essential characteristics of the dispute did not arise from the interpretation, administration or violation of the collective agreement. Rather, the essential characteristics of the dispute raised the question whether certain earnings constituted pensionable earnings for the purposes of pension entitlement – and that these issues fell within the scope of the plan’s responsibilities.

22Arbitrator R. Howe, in the latter case, referred to and adopted the reasoning of arbitrator J. Parmar in the earlier case.

Discussion

23In the present case, the parties argued the matter on the basis of an agreed statement of fact put before the arbitrator. At paragraph 6 of the statement of fact, the parties agreed that the hospital was responsible for remitting contributions to the plan, based on the employee’s pensionable earnings and the provisions of the plan and guidelines.

24In his award, arbitrator Stout identified the provisions of the collective agreement that referred to the pension membership obligations of employed nurses in Articles 17.04 and 19.01 of the collective agreement.

25The arbitrator referred to and considered the jurisprudence which addresses the appropriate scope of an arbitrator’s jurisdiction to deal with extrinsic material referred to in the collective agreement. The arbitrator referred to the decision of the Supreme Court in Weber and the authorities which follow that analysis.

26The arbitrator considered, discussed and followed the awards in Parry Sound and Grand River.

27Significantly, the arbitrator noted that both of these awards required meaningful consideration but were not binding on him.

28At page 62 of the award, the arbitrator noted that:

…on review of the HOOPP Plan Text, Administration Manual and the requirements of the Pension Benefits Act, it is clear to me that any issue involving pension contributions, particularly whether the Hospital provided accurate information and made the required contributions to HOOPP, is a matter between the HOOPP administrator and the hospital… The HOOPP administrator has the exclusive right to interpret the plan and to decide all matters arising from it.

29At paragraph 73, the arbitrator concluded that:

… the dispute involves the determination of pensionable earnings and the amount of pension contributions which are required to be deducted and remitted to HOOPP by the hospital… the facts which give this dispute its essential character were not intended by the parties to be governed by the collective agreement.

30As to the argument that individual nurses would be left without a mechanism to address incorrect or wrong contributions, it was acknowledged by counsel that individual nurses or the union for that matter could raise these issues with the plan directly.

The Standard of Review

31As indicated earlier, the parties agree that the standard of review is one of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, Newfoundland and Labrador Nurses’ Union v. The Queen in Right of Newfoundland, [2011] 3 S.C.R., page 408.

32Labour arbitrators are understood to be exercising a significant expertise particularly when construing collective agreement obligations and entitlements. It is fair to say that the job of interpreting collective agreement provisions lies at the core of a labour arbitrator’s function as contemplated by the Labour Relations Act. This function and role attracts deference.

33It is not the role of the court on a judicial review application to rehear the matter before the arbitrator on the merits. Rather, the court is tasked to determine as a central question whether the decision of the arbitrator met the appropriate standard of review.

34Even if the court may have come to a different conclusion, what is dispositive is the question of whether the standard of review has been met in this case.

35As the Supreme Court states in Newfoundland Nurses’ “…in determining whether a decision is reasonable, the inquiry for a reviewing court is about justification, transparency and intelligibility”. In other words, the test is not whether the court agrees with the arbitrator’s decision but rather, is the decision reasonable when viewed through the Dunsmuir lens.

36The arbitrator considered the agreed statement of fact, analyzed the relevant jurisprudence, considered the provisions of the collective agreement and had particular regard to other earlier arbitration awards which dealt with the same issues under the same collective agreement language.

37All of these considerations were described in transparent detail in the reasons set out in the award.

38The reasons provided by the arbitrator in his award support the conclusion that the outcome is justified, transparent and intelligible. The outcome is defensible in fact and law.

39The award of the arbitrator certainly falls within the range of reasonable outcomes.

Outcome

40The application is dismissed.

41Written submissions as to costs may be made, no longer than three pages within 20 days.

Whitaker J.

Rady J.

Harvison Young J.