St. Gabriel’s Villa of Sudbury v. Ontario Nurses’ Association, 2015 ONSC 3459

St. Gabriel’s Villa of Sudbury v. Ontario Nurses’ Association, 2015 ONSC 3459

CITATION: St. Gabriel’s Villa of Sudbury v. Ontario Nurses’ Association, 2015 ONSC 3459

DIVISIONAL COURT FILE NO.: 483/14 DATE: 20050528

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, R. J. SMITH AND HARVISON YOUNG JJ.

BETWEEN:

ST. GABRIEL’S VILLA OF SUDBURY Applicant

– and –

ONTARIO NURSES’ ASSOCIATION Respondent

Harold P. Rolph, for the Applicant

Elizabeth J. McIntyre and Stephen D. Flaherty, for the Respondent

HEARD at Toronto: May 28, 2015

HARVISON YOUNG J. (ORALLY)

1This is an application for judicial review of an interest arbitration award (“the Award”). The Applicant St. Gabriel’s Villa (“St. Gabriel’s” or “the Employer”) is a Sudbury long-term care home. It is operated, together with a hospital and another care home, by a charitable foundation (“St. Joseph’s”). The Respondent Ontario Nurses’ Association (“ONA”) is the bargaining agent for the registered nurses (“RNs”) employed by the Applicant. The parties began to negotiate a first collective agreement in 2012. In 2013, having failed to reach agreement on wage rates and other issues, they agreed to submit their differences to binding interest arbitration pursuant to the Hospital Labour Disputes Arbitration Act (“the Act”). A majority of the arbitration board (“the Board”) accepted the ONA’s argument that nurses at St. Gabriel’s should be paid at the same rate as hospital nurses, rather than the lower wage proposed by the Employer. St. Gabriel’s seeks an order quashing the Award. The ONA asks this Court to dismiss the application.

2At the heart of the application is the applicant’s submission that the Board’s decision fails to meet the minimum standard of justification, transparency and intelligibility as set out by the Supreme Court of Canada in the Dunsmuir decision at para. 47 because the reasons fail to communicate how and why the Board concluded that the hospital nurses constituted the appropriate comparator.

3In particular, the applicant submits that the Board failed to articulate and specifically apply the criteria set out in s. 9(1) of the Act and that it failed to state why it chose the hospital comparator as opposed to the nursing home comparator. The applicant does not dispute that the result falls within the range of acceptable outomes.

4For the following reasons, we would dismiss the application.

5First, it is important to consider the context of this arbitration. It was an interest arbitration. As this court recently stated in Service Employees International Union v. Participating Nursing Homes, there are some particular considerations that apply to interest arbitrations: (para 11-13)

11. An interest arbitrator applies the criteria set out in HLDAA in order to arrive at the terms of a collective agreement for the parties, a statute with which interest arbitrators in hospital labour disputes have particular familiarity.

12. As well, interest arbitrators exercise a broad discretion, as they are not interpreting a collective agreement, as do rights arbitrators. Rather they are settling the terms of the agreement, a task that has been said to be analogous to a legislative function in which arbitrators draw on their labour relations expertise Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 53).

13. Accordingly, a high degree of deference is to be accorded to the arbitrator’s application of the factors in s. 9(1.1) and to his or her conclusions about the appropriate terms of the collective agreement.

6Second, Interest arbitrations are necessarily conducted in an expeditious framework. The Act stipulates that decisions must be within 90 days of the appointment of the last board member.

7It is also clear that the sufficiency of reasons is to be assessed in a contextual manner. In the Newfoundland Nurses decision, Abella J. cited Evans J.A. at para 18 of her reasons as follows:

18. Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the basis of its decision” (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:

Page 717:

When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44]

8Mr. Rolph for the applicant argued that, at a minimum, reasons must show the “loser” why they lost and that these reasons fail to meet that minimum standard. While we agree with the first part of this submission, we disagree with the second.

9Here, the central issue as noted by the Board was the issue of the appropriate comparator group. There were only two possible options- the hospital nurses or the nursing home group.

10While indicating that it had been guided by the legislative criteria, the central issue as noted by the Board from the submissions and the amount of time spent was that the central issue was the appropriate comparator group. The majority noted that the Board spent considerable time attempting to determine the appropriate comparator for applying the most important of the interest arbitration criteria: replication of free collective bargaining. In choosing the comparator it did, the Board noted that the home is extremely closely associated with a hospital with respect to which some key functions such as finance, nursing, and labour relations are clearly integrated under a shared CEO and it found:

There is a discernable pattern of following hospital patterns in situations of hospital ownership\affiliation, moderated, of course by the application of first contract interest arbitration principles. (Decision, p. 3)

11There were some 1,200 pages of evidence and exhibits submitted by the employer and some 1,000 by the ONA. The Chair was consented to and each side nominated one of the other two members of the board. It is clear from the record that the comparator issue was treated as central by both sides. There was a clear pattern of decisions that supported the hospital comparator group and only one decision in favour of the nursing home comparator. In these circumstances, it is clear that the parties were all alive to the pros and cons of each argument. This is also underlined by the dissenting Member’s (Kleiner) view that it was incorrect to apply a hospital benchmark. His argument was that the Chairman did not attach sufficient weight to the evidence that was presented by the employer. He would have placed less weight on the affiliation with a hospital than the majority did. That of course would not render the decision of the Board unreasonable, but the point is that it does indicate that the issues were directly considered and addressed.

12Another critical aspect of the decision is that, as interest arbitration, it is more in the nature of legislative than adjudicative. The focus in an interest arbitration is to come up with an expeditious solution and not to analyse the decision. This is evident in the fact that the Board also determined a number of other more peripheral issues between the parties relating to retroactivity, vacation entitlement and other issues with no reasons at all. This makes sense in the context of interest arbitration and the intention that it attempts to replicate what the parties would negotiate freely in the course of collective bargaining; some of these issues were resolved in favour of the union’s position and some in favour of the employer’s position, which is normally what one would expect to happen. Neither side takes issue with the absence of reasons on these other matters.

13In short, we are of the view that these reasons, read as a whole and taking the context of interest arbitration and the issues at play in this case into account do meet the minimum standards of justification, transparency and intelligibility. While it might have been preferable or more prudent for the Board to include somewhat more detail as to why it chose the hospital comparator, and the reasons are very brief indeed, we find that taking account of the nature of the process, the evidence, submissions, issues and the reasons of the Board, the reasons are sufficient within the meaning of Dunsmuir, para. 47. The application is dismissed.

SACHS J.

COSTS

14I have endorsed the Application Record (Vol. I), “This application is dismissed for reasons given orally by Harvison Young J. As per the agreement of the parties, the respondent is entitled to its costs fixed in the amount of $5,000.”

___________________________ HARVISON YOUNG J.