Court File and Parties

CITATION: Royal Ottawa Health Care Group (Brockville) v. Ontario Nurses’ Association 2015 ONSC 6714

COURT FILE NO.: 15-2123

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: ROYAL OTTAWA HEALTH CARE GROUP – BROCKVILLE MENTAL HEALTH CENTRE – Applicant v. ONTARIO NURSES’ ASSOCIATION and A DIRECTOR UNDER THE OCCUPATIONAL HEALTH AND SAFETY ACT (MINISTRY OF LABOUR) and ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION - Respondents

BEFORE: MARROCCO ACJ, HEROLD AND WHITTEN JJ.

COUNSEL: Stephen Bird, Co-counsel for Applicant Michelle O’Bonsawin, Co-counsel for the Applicant, Royal Ottawa Health Care Group Gráinne McGrath, for the Ministry of Labour Elizabeth McIntyre and Janet E. Borwy, for the Ontario Nurses’ Association Leonard Marvy, for the Ontario Labour Relations Board Craig Arthur Flood and Katherine Ferreira, for the Ontario Public Service Employees’ Union

HEARD: October 29, 2015

Endorsement

BY THE COURT:

[1] The Order of May 4, 2015 was a preliminary order rendered by the Ontario Labour Relations Board. The provisions of properly trained security personnel were not specifically addressed by the inspectors’ orders. Generally safety issues surrounding the treatment of inmates at the Brockville Mental Health Centre were the subject of discussion between the inspectors, the joint safety committee and the persons interviewed.

[2] The hospital in particular, challenges the Board’s decision to make such an order. It should be noted that the interim order was one of many requested by the Ontario Nurses’ Association. The application by the hospital with respect to orders made by the inspectors and the Board has yet to be heard.

[3] The Board and other parties argue that for this Court to consider that interim order relative to the provision of security in isolation before the application is heard would be a fragmentary approach to the application and that any consideration at this juncture would be premature.

[4] There is considerable case law to suggest that it would not be appropriate for an appellate court to interfere with the evolution of an application by dealing piecemeal with certain aspects of it, namely, a fragmented approach. It is more efficient from a judicial resource point of view that an application be dealt with in its entirety. That is certainly the case before us, evidence is still yet to be adduced and submissions are to be made. The process is very much unfolding as it were. In a nutshell this is a premature application. The Board’s proceedings are still ongoing. The impugned order is simply one aspect of a possible regime to be considered to insure the safety of the nurses in this particular unique context i.e. the forensic psychiatric unit.

[5] The ability of the Board to make an order, interim or otherwise, not specifically addressed by an inspector, is still an issue in our opinion which can be addressed in the final ruling of the Board, which in turn is subject to judicial review.

[6] Even if the challenge to the May, 2015 Order could be characterized as a “jurisdictional” issue as Justice Stratas stated in C. B. Powell Limited v. Canada (Border Services Agency) 2010 FCA 61, 2010 F.C.A. 61:

That does not justify judicial interference with the ongoing administrative decision making process. Paras. 39-45.

[7] That wisdom was adopted by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 para. 67.

[8] The hospital application is premature, it is unnecessary to determine the standard of review. Accordingly this application is premature.

[9] Costs payable to the Ontario Nurses’ Association by the Applicant in the amount of $17,500 for fees, plus $7,500 for disbursements plus H.S.T. where applicable. Costs payable to the Ontario Public Service Employees’ Union by the Applicant in the amount of $8,750 plus applicable H.S.T. Remaining respondents claim no costs.

Marrocco ACJ

Herold J.

Whitten J.

Released: October 30, 2015