Citation and Court Information

CITATION: Ottawa Hospital v. OPSEU, 2017 ONSC 5501

DIVISIONAL COURT FILE NO.: 16-2247

DATE: 2017/09/21

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

M.G. Quigley, Matheson and Raikes JJ.

BETWEEN:

THE OTTAWA HOSPITAL Applicant

– and –

ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 464 and RICHARD MACDOWELL, in his capacity as Arbitrator Respondents

JD Sharp, Porter Heffernan for the Ottawa Hospital Christopher Bryden, Richard A. Blair, for the Ontario Public Service Employees Union

HEARD at Ottawa: September 14, 2017

REASONS FOR DECISION

Raikes J.:

[1] The applicant, Ottawa Hospital (“the Hospital”) seeks judicial review of an arbitral award dated April 26, 2016 arising from a grievance filed by the respondent Union. The issue determined was whether physicians’ assistants or PA’s are part of the “paramedical bargaining unit” as defined in Article 1.02 of the Collective Agreement. Arbitrator MacDowell concluded that PA’s were within the scope of the paramedical bargaining unit.

[2] Both sides to this judicial review agree that the applicable standard of review is reasonableness. Further, an arbitrator’s interpretation of a collective agreement lies at the core of a labour arbitrator’s expertise and is entitled to considerable deference: Dufferin-Peel Catholic District School Board v. O.E.C.T.A. at para. 9.

[3] The Hospital argues that the decision of Arbitrator MacDowell is unreasonable because:

a. He undertook the wrong analysis: he did not determine whether PA’s “are” within the scope of the paramedical bargaining unit; rather, he determined that they should be;

b. His ultimate conclusion is inconsistent with his factual findings which demonstrate that PA’s have greater authority and scope of duties than those in the paramedical bargaining unit. They are “medical” employees, not “paramedical” employees; and

c. The definition of a “paramedical” employee applied by the Arbitrator is over-broad and risks sweeping in other categories of employees who already have separate union or bargaining unit representation.

[4] For reasons which follow, I disagree and dismiss this application.

Background

[5] On March 20, 2008, the Union filed a policy grievance asserting that the position of PA fell within the scope of the paramedical bargaining unit. PA’s were then relatively new to the Hospital. On the arbitration, the Hospital took the position that PA’s are non-union medical professionals and do not fall within the ambit of the various employees comprising the paramedical bargaining unit.

[6] Both sides called evidence at the hearing, which took place over 17 days between 2011 and 2015. The evidence focused on:

a. The various categories of employees who were undisputed members of the paramedical bargaining unit, their professional designations, education, responsibilities, degree of autonomy and scope of authority;

b. The role and responsibilities of PA’s including their scope of authority, medical/health science training and interaction with other health care providers within the Hospital;

c. The nature and specifics of the existing contractual arrangements between the Hospital and PA’s;

d. The history of the emergence of the role of PA’s at the Hospital and its anticipated future development; and

e. The history and scope of the various bargaining units at the Hospital.

[7] The evidence adduced at the hearing demonstrated that the paramedical bargaining unit comprised a considerable array of employees with disparate skills, training and professional certifications. Some provided very limited medical services or care to patients, while others like psychologists provided services close to the same as their medical doctor counterparts.

The Collective Agreement

[8] Article 1.02 of the Collective Agreement defines the scope of the “paramedical bargaining unit” as follows:

The parties have agreed upon the following definition of the bargaining unit: All paramedical employees of The Ottawa Hospital/L’Hopital d’Ottawa, save and except supervisors, persons above the rank of supervisor, Laboratory Scientists, Biochemists, Staff of the Ottawa Hospital Research Institute, Occupational Health and Safety Services Personnel, Radiation Safety Personnel, students and students employed during the school vacation period.

[9] The Collective Agreement does not specifically define the descriptor “paramedical”, nor does the Collective Agreement contain a list of job titles or positions which comprise the paramedical bargaining unit. The Arbitrator found that the type of jobs encompassed by the paramedical bargaining unit was not closed; that Article 26.01 of the Collective Agreement expressly contemplated new job classifications would be added from time to time as more and different jobs were created, and specialization and division of work occurred. This includes jobs which may not have been in existence when the paramedical bargaining unit was first established, such as the PA role.

Scope of Arbitrator’s Mandate

[10] The Hospital asserts on this application that the Arbitrator exceeded the scope of his mandate. He was supposed to determine if PA’s are part of the paramedical bargaining unit, not determine whether they should be. The latter is within the exclusive purview of the OLRB. The determination required of the Arbitrator was a matter of interpretation of the Collective Agreement only; it did not involve consideration and application of the policy grounds that the OLRB would apply to determine who should be in the bargaining unit.

[11] We observe that the Arbitrator clearly appreciated his mandate in this regard. For example, at para. 49 of his decision, Mr. MacDowell wrote:

To be clear: I am not the OLRB and the issue before me, as an arbitrator, is not whether some disputed individuals “should be “ in the paramedical bargaining unit, but rather whether they actually “are” in it as a matter of interpretation. … [Emphasis in original.]

[12] This acknowledgement of the scope of his mandate is reiterated elsewhere in the decision and was honoured by the Arbitrator as reflected in the Award as a whole.

[13] At para. 153, the Arbitrator framed before him the question as follows:

However, the question in this case is not whether the PAs are “generalists” or “specialists” or “different” from other employees, or a “new” and different “profession” in the hospital environment, or more responsible than paramedical employees for particular kinds of treatment or for patients in general – but rather whether the PAs can be fairly said to be “paramedical” employees within the meaning of the opening words of Article 1.02….

[14] The Arbitrator ascertained the meaning of “paramedical” and scope of the paramedical bargaining unit through a careful, contextual analysis. The Arbitrator,

a. Considered the use of “paramedical” in the labour jurisprudence dealing with bargaining units. In other words, he situated the meaning of “paramedical” in its industrial application;

b. Considered the plain and ordinary meaning of “paramedical” found in various dictionaries;

c. Considered the evidence adduced as to how the parties themselves used the word “paramedical” in the context of the paramedical bargaining unit; and

d. Considered the language of the Collective Agreement as a whole.

[15] Arbitrator MacDowell considered the seminal decisions that set out the features considered relevant to the Labour Board in its determination of the scope of a paramedical bargaining unit. Those features include,

a. The occupations are organized around the medical profession (doctors) and are subordinate to that profession;

b. They perform work at the request of a doctor;

c. Their work is monitored to a greater or lesser extent by doctors; and

d. The occupations are integrally related to the treatment process.

[16] The Arbitrator noted that these features provide interpretive guidance only for the assessment of whether PA’s are within the paramedical bargaining unit in Article 1.02 of the Collective Agreement.

[17] As mentioned, the Arbitrator undertook and applied a common sense, plain language analysis to what was encompassed by “paramedical” in the Collective Agreement. He examined numerous dictionary definitions and found at paras. 404-405:

404. These dictionary definitions share a common theme, and in my view, they all tend to support the Union’s submission that the “Physicians’ Assistants” should be regarded as “paramedical” employees for collective bargaining and bargaining unit purposes. Because that is the “ordinary meaning” of the adjective “paramedical” when it is used in relation to health care workers. It pertains to people who are trained in health sciences and who assist doctors or supplement what doctors do, in various ways, but who are not doctors themselves.

405. In ordinary usage, therefore, the word “paramedical” identifies a class of people who are not doctors but who may nevertheless provide health care, or “medical care”, or some kinds of “treatment”, or do medically-related functions in conjunction with “real doctors” – usually on the instruction, or under the supervision, of those doctors. It follows that they are “paraprofessionals” too – in this case, adjuncts to the “medical profession”.

[18] In his decision, Arbitrator MacDowell considered and weighed the role, authority and responsibilities of PA’s in the patient treatment regime at the Hospital. He examined in detail the similarities and distinct differences between PA’s and other categories of employees in and out of the paramedical bargaining unit. In that sense, his analysis sought to place the job of PA in the context of this work environment.

[19] The Arbitrator was cognizant of the differences between PA’s and those in other roles within the paramedical bargaining unit including the manner in which they work with doctors. He found that “these are matters of degree, not kind; and they arise because everything the PAs do is delegated and they have no independent professional authority to do anything more than what a doctor directs or authorizes them to do”.

[20] He was also alive to the differences between PA’s on the one hand and “medical professionals” like doctors. Arbitrator MacDowell wrote:

410. However, the PA’s are clearly not doctors; they do not have a doctor’s accreditation; they will never be doctors (unless they actually get an M.D. degree); and thus they are not full-fledged “medical professionals” - as doctors are, by definition (which is why they are mentioned in the OLRA in professional terms and are excluded from collective bargaining on that basis).

411. The Physicians’ Assistants are not “medical professionals” from this statutory (and collective bargaining) perspective and they are certainly not “doctors” who are members of the College of Physicians and Surgeons. Nevertheless, I think that the PAs can be quite accurately described as “paramedical employees”, even though they have not received statutory recognition as a “health profession” under [the] Regulated Health Professions Act. And even though they do medical work, pursuant to a medical doctor’s delegation or a “Medical Directive”. Like the “Medical Directives” that facilitate the work of PARA-medical employees.”

[21] The Arbitrator considered and rejected the position of the Hospital that PA’s were “medical”, not “paramedical” employees. He wrote:

463. There are no words in the Collective Agreement that support the distinction that the Employer proposes (at least the Hospital did not point to any); and I am unaware of any arbitral or OLRB jurisprudence that supports that distinction either – not least because the word “paramedical” has the word “medical” embedded within it and has been traditionally used [to] cover a whole variety of persons who, while not doctors, are engaged in facets of “medical care” or “treatment” (just as the Hospital’s “Medical” Directives envisage and permit). …

464. So the fact is: the “medical” versus “paramedical” distinction that is urged upon me by the Employer as the critical distinction for bargaining unit purposes, is not one that is rooted in collective bargaining parlance or practice; and it does not find support in the words found in the Collective Agreement; and it is not reflected in the operational documents which deal with how work is delimited, permitted or allocated; and it is not consistent with the ordinary or the “collective bargaining” meaning of the word “paramedical” either.”

[22] I do not agree that the Arbitrator strayed into the application of policies of the OLRB in determining the scope of the paramedical bargaining unit and whether the PA’s fit within the scope of that bargaining unit. I am satisfied that the Arbitrator confined himself to the task at hand: interpretation of the Collective Agreement.

[23] I observe that deference is owed to an experienced labour arbitrator who heard 17 days of evidence and argument on this important collective bargaining issue. His decision reflects a careful and nuanced assessment of the evidence and law.

Whether Conclusion Ignores Factual Findings

[24] The Hospital argues that the Arbitrator’s ultimate conclusion (that PA’s are within the scope of the paramedical bargaining unit) is at odds with some of his findings of fact specific to their role, authority and responsibilities. The Hospital again argues that his findings ought to have led him to the conclusion that PA’s are “medical employees” akin to medical residents and students.

[25] The Arbitrator found that the duties and responsibilities of PAs were different from other members of the paramedical bargaining unit. However, he also found that the duties and responsibilities of those in that bargaining unit were different from each other, and those differences were not determinative of membership in the bargaining unit.

[26] The finding of the Arbitrator that the job of a PA fits more acutely into the intended ambit of the paramedical bargaining unit than some of the other employee classifications who are indisputably members of that bargaining unit is a reasonable conclusion on the evidence before him. That finding is consistent with the ordinary meaning of “paramedical”, the parties’ own practice in using the word “paramedical” to encompass a broad range of professional and technical employees, and with the usage employed by Labour Boards in a collective bargaining context.

[27] The authority of and, indeed, the scope of work done by PA’s depends entirely on delegation by the physician under whom the PA works. The scope of the work a particular PA does depend on the extent to which the doctor gives that PA authority to act on his or her behalf. The PA’s actions are supervised by the doctor.

[28] The role of a PA is ancillary or subsidiary to the role of the doctor. That is consistent the meaning of the word “para” when used in conjunction with an occupation. For example, a paralegal is not a lawyer.

[29] In my view, the Arbitrator’s findings relating to the authority of and duties performed by PA’s do not undermine his ultimate conclusion or render it unreasonable. His conclusion that PA’s are “paramedical” employees is consistent the plain and ordinary meaning of “paramedical”, the parties’ own practice, the language of the Collective Agreement and the jurisprudence in a bargaining unit context. The conclusion reached by him is a reasonable outcome in respect of these parties to this Collective Agreement at this institution.

Whether Over-Broad Definition Used

[30] Finally, the Hospital submits that the Arbitrator’s definition of “paramedical” is unreasonably broad and risks sweeping other employees into the bargaining unit. This position is part of the overarching submission that the conclusion reached was unreasonable.

[31] The thrust of the Hospital position is that the definition applied to “paramedical” could apply to medical residents, nurses and service staff. The Hospital’s position is that those groups are excluded from the Collective Agreement only because they were already represented in other bargaining units. The paramedical bargaining unit will, on his definition, become a catchall for every other employee at the hospital.

[32] However, this disregards the existing regime under which these groups are already excluded. Medical residents are excluded from collective bargaining under s. 1(3)(a) of the Labour Relations Act, 1995. Accordingly, there is no danger that medical residents will fall into the paramedical collective bargaining unit.

[33] Nurses have a long history of separate collective bargaining units. There is no risk that nurses at the Hospital will be swept up in the paramedical bargaining unit definition.

[34] Likewise, there is an existing bargaining unit for clerical and other support staff at the Hospital.

[35] The definition applied by the Arbitrator must be considered in the existing labour relations context at the Hospital and the specific question he was asked to determine which addressed the PA job, a relatively new and evolving role at the Hospital. The interpretation is not unreasonable.

Conclusion

[36] We conclude that the decision by Arbitrator MacDowell is reasonable. Accordingly, the application for judicial review is dismissed.

Raikes J.

I agree _______________________________

Michael G. Quigley J.

I agree _______________________________

Matheson J.

Date of Release: September 21, 2017

CITATION: Ottawa Hospital v. OPSEU, 2017 ONSC 5501

DIVISIONAL COURT FILE NO.: 16-2247 DATE: 2017/09 /21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M.G. Quigley, Matheson and Raikes JJ

BETWEEN:

THE OTTAWA HOSPITAL Applicant

– and –

ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 464 and RICHARD MACDOWELL, in his capacity as Arbitrator Respondents

REASONS FOR DECISION

M. G. Quigley, Matheson and Raikes JJ.

Date of Release: September 21, 2017