Toronto East General Hospital v. Ontario Nurses’ Association, 2016 ONSC 7331
CITATION: Toronto East General Hospital v. Ontario Nurses’ Association, 2016 ONSC 7331
DIVISIONAL COURT FILE NO.: 572/14
DATE: 20161124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, NORDHEIMER & KING JJ.
BETWEEN:
TORONTO EAST GENERAL HOSPITAL
Applicant
– and –
ONTARIO NURSES’ ASSOCIATION and FELICITY BRIGGS, ARBITRATOR
Respondents
A. Wells & C. Kelly, for the applicant
E. McIntyre & D. Bisnar, for the respondent, Ontario Nurses’ Association
No one appearing for the respondent, Felicity Briggs
HEARD at Toronto: November 22, 2016
REASONS FOR JUDGMENT
NORDHEIMER J.:
[1] This is an application, brought by the Toronto East General Hospital, for judicial review of an arbitration award dated September 16, 2014.
[2] The issue arose as the result of a decision, made by the applicant, to close some beds in one unit of the hospital. This decision reduced the number of hours that were available for regular part-time nurses. The applicant determined that it would spread the reduction in the hours across all of its regular part-time nurses. The respondent Union contends that the applicant ought to have reduced the hours, among the regular part-time nurses, based on seniority and that its failure to do so triggers the lay-off provisions in the collective agreement.
[3] The Union filed a grievance claiming that the applicant had violated the collective agreement by reducing the hours of work for part-time registered nurses. The Union alleged that the reduction of hours constituted a lay-off, and that the applicant had not complied with the requirements contained in the collective agreement regarding a lay-off.
[4] When the matter appeared before the arbitrator, the parties agreed to first pose two questions for determination by the arbitrator. The two questions were:
(i) Does the Collective Agreement require the Hospital to schedule a regular part-time registered nurse up to his/her commitment to be available, regardless of whether the hours of work are available?
(ii) Where a regular part-time registered nurse is scheduled less than his or her commitment to be available and has been scheduled up to his or her commitment on a previously posted schedule, does the scheduling of a regular part-time registered nurse on a subsequently posted schedule below her commitment to be available constitute a lay-off?
[5] The arbitrator concluded that the answer to the first question was No. Specifically, the arbitrator ruled, at p. 21:
The Hospital is not obliged to schedule a regular part time nurse to the level of her commitment if the hours of work are not available.
[6] With respect to the second question, the arbitrator concluded that the answer was Yes. Specifically, the arbitrator ruled that, if the applicant did not schedule a part-time nurse to the level of his/her commitment, that failure constituted a lay-off.
[7] Before I begin my analysis of the issue, I note the fact that the parties agree that the standard of review applicable to the arbitrator’s award is reasonableness. The question then is whether the decision of the arbitrator is justified, transparent and intelligible within the decision-making process: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47. As the Supreme Court of Canada added, however, within the same paragraph:
But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Put another way, a decision is not reasonable if it does not fall within the range of “acceptable and rational solutions”.
[8] I agree with the applicant’s submission that the arbitrator’s answers to the two questions posed are fundamentally inconsistent. The arbitrator first found that there was no obligation on the applicant to schedule a part-time nurse to the level of his/her commitment, if the work was not available. No issue is taken with respect to that conclusion.
[9] That conclusion flows clearly from the nature of the work arrangements for part-time nurses. In essence, part-time nurses tell the applicant what level of hours they are prepared to work up to. In doing so, part-time nurses expressly agree to “be available” for a certain amount of work including on specific days (e.g. weekends, statutory holidays). The nature of that commitment is reflected in the definition of a part-time nurse, which is set out in Article 2.05 of the collective agreement. It reads, in part:
A regular part-time nurse is a nurse who regularly works less than the normal full-time hours referred to in Article 13 and who offers to make a commitment to be available for work on a regular predetermined basis.
[10] The issue of lay-offs is dealt with separately and for nurses as a whole. Article 10.08 of the collective agreement provides:
(a) A “Layoff” shall include a reduction in a nurse’s hours of work and cancellation of all or part of a nurse’s scheduled shift.
The Arbitrator agreed with the applicant that the applicant had not cancelled any part-time nurse’s scheduled shifts.
[11] It should be beyond reasonable debate that an employee cannot be laid off, if there is no obligation on the employer to provide work to the employee in the first place. In other words, if an employer has no obligation to provide work to an employee, then the employee cannot be fairly characterized as being laid off, when the employer does not provide work.
[12] Unlike full-time registered nurses who have regular hours fixed in accordance with Article 13 of the collective agreement, there is a special arrangement between the applicant and the respondent regarding part-time nurses. Part-time nurses are not guaranteed work. It is obvious from the fact that a part-time registered nurse makes him or herself “available” for work, that there is no guarantee or obligation regarding the level of work that will, in fact, be provided. As should be evident from the wording of Article 2.05, the commitment is one-sided. The employee makes the commitment to be available. The employer does not make any corresponding commitment to provide the work. The only commitment that the applicant makes is to ensure that part-time nurses are scheduled up to their commitment before the applicant provides any work to casual part-time employees (Appendix 5 – Article D.7).
[13] The arbitrator made a determination that the applicant had no obligation to schedule a part-time nurse, if there was no work available for him/her. It must, of necessity, follow from that first determination that there can be no lay-off of part-time nurses when they are not provided work, much less work up to the level of their commitment. To hold otherwise, would nullify the clear intent of Article 2.05.
[14] That analysis does not change because part-time nurses have, in the past, generally received a certain amount of work. The fact that work has been provided in the past does not alter the clear wording of Article 2.05, or the fundamental nature of the work arrangement. Nor can the fact that work has been provided in the past to part-time nurses operate as any type of estoppel. The fact remains that when it comes to part-time nurses, the applicant is entitled to provide work to them, or not, as the applicant chooses.
[15] In her award, the arbitrator said, at p. 26:
As noted by other arbitrators in earlier decisions, there is nothing radical about finding that part-time time [sic] employees are considered to be laid off when their normal working hours are reduced. Such a finding does not lead to an absurdity.
[16] The second observation does not inexorably flow from the first. Whether part-time employees are properly considered to be laid off, when their working hours are reduced, will depend on the wording of the particular collective agreement. Different wording will obviously lead to different results. However, in this case, in light of the express wording of Article 2.05, the arbitrator’s conclusion, on the second question, does lead to an absurdity, in light of her answer to the first question. It means that an employer, who is not required by the collective agreement to provide a minimum commitment of work to a part-time employee, is then saddled with the layoff obligations and costs, prescribed in the collective agreement, for failing to provide the very work that it is not contractually required to provide.
[17] There would be an entirely different result if the applicant had an obligation to provide work to the part-time nurses, but I cannot find any provision in the collective agreement that establishes any such obligation, and the Union was unable to point to any such provision. The Union’s efforts to rely on implicit provisions, or reading between the lines, or past history, ignore the clear wording and intent of Article 2.05. It would also result in a situation where, in order to avoid the lay-off provisions, the applicant would be obliged to guarantee work to the part-time nurses that would not be contingent on actual needs – an interpretation that the arbitrator herself expressly rejected.
[18] The Union complains that, if the answer to the second question is not as the arbitrator found it to be, then the lay-off provisions become irrelevant to part-time nurses. I cannot contemplate every factual scenario that might arise involving part-time nurses so as to conclude whether that is the result or not. However, if it is the result, then it is the direct consequence of what the parties agreed to through their collective agreement.
[19] In the end result, the arbitrator’s award elevates what was clearly intended to be a flexible system, by which the applicant would assign work to part-time nurses, to an absolute entitlement to work. That result turns on an answer to the second question, that is not only inconsistent with the answer to the first question, but is also at odds with the deal that the parties made in their collective agreement.
[20] Consequently, it is not a result that falls within the range of acceptable and rational solutions to the issue that presents itself in this case.
[21] The application for judicial review is granted, the arbitration award is set aside insofar as it held that the lay-off provisions of the collective agreement were triggered by the actions of the applicant. The matter is remitted back to the arbitrator to proceed, in accordance with these reasons, to determine the balance of the issues raised by the grievance. The Union will pay to the applicant the costs of this application, fixed in the amount of $5,000, inclusive of disbursements and HST, the amount having been agreed between the parties.
NORDHEIMER J.
I agree
DAMBROT J.
I agree
KING J.
Date of Release: November 24, 2016
CITATION: Toronto East General Hospital v. Ontario Nurses’ Association, 2016 ONSC 7331
DIVISIONAL COURT FILE NO.: 572/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, NORDHEIMER & KING JJ.
BETWEEN:
TORONTO EAST GENERAL HOSPITAL
Applicant
– and –
ONTARIO NURSES’ ASSOCIATION and another
Respondents
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release: