CITATION: Orillia Soldiers Memorial Hospital v. Ontario Public Service Employees Union, OPSEU Local 383, 2018 ONSC 5747

DIVISIONAL COURT FILE NO.: 607/17 DATE: 20180927

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

CONWAY, MATHESON and SHEARD JJ.

BETWEEN:

ORILLIA SOLDIERS MEMORIAL HOSPITAL

Mitchell Smith, for the Applicant

Applicant

– and –

ONTARIO PUBLIC SERVICE EMPLOYEES UNION, OPSEU LOCAL 383

David Wright and Christopher Bryden, for the Respondent

Respondent

HEARD at Toronto: September 27, 2018

MATHESON J. (Orally)

1The Applicant Hospital seeks judicial review of part of an interest arbitration award made by the Interest Arbitration Board (the “Board”) on July 18, 2017.

2More specifically, the Applicant challenges the Board’s decision to award a travel pay benefit outlined in the “Letter of Understanding – Multi-Site Work” (“Multi-Site LOU”) in the Award. The Applicant asks that this portion of the award be quashed.

BACKGROUND

3This case relates to certain social workers who perform services for the Regional Kidney Care Program run by the Applicant. Since 2005, their travel time to satellite clinics was compensated for on the basis that it counted as work hours. The funding for this travel time was provided by the Applicant’s regional partners. However, in 2015 those regional partners notified the Applicant that they would no longer be providing that funding. The Applicant was therefore planning to make a change.

4Prior to 2016, the social workers were non-union employees. Before the Applicant made a change to travel time compensation, the Respondent applied to certify a group of employees that included these social workers. The parties settled certification, and the social workers were included in one of the Respondent’s existing bargaining units under the then current collective agreement. It was agreed in the settlement that any “superior term or condition” of their employment would be maintained until the collective agreement was renewed.

5The Respondent applied to the Ontario Labour Relations Board (“OLRB”) to determine whether the travel pay to satellite clinics was a “superior term or condition” that should be maintained until the collective agreement was renewed. In a decision dated November 23, 2016, the OLRB decided that it was.

6After bargaining for the renewal of the collective agreement in 2016, the outstanding bargaining issues were referred to the Interest Arbitration Board as required under the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H-14 (“HLDAA”). Compensation for the social worker travel time was one of the outstanding issues that then proceeded to an interest arbitration under the HLDAA.

7The panel hearing the interest arbitration consisted of the Chair, as well as an Employer Nominee and Union Nominee.

8Before the interest arbitration hearing in February 2017, both parties filed written submissions. There was then an oral hearing. As well, following the hearing, the Respondent filed supplementary submissions and the Applicant filed reply submissions.

9On the travel time issue, the Applicant’s position was that there should be no compensation for travel time to satellite locations. The Respondent generally sought to retain the prior approach of full compensation for travel time for these employees.

10Both parties put forward numerous other collective agreements, which were relied upon as comparators.

11On July 18, 2017, the Chair issued the Award, in which he awarded the Multi-Site LOU on the travel time issue. The Employer Nominee and the Union Nominee each dissented from the Chair’s decision on this issue. The decision of each Nominee generally supported the outcome sought by their nominator.

12Under s. 6(18) of the HLDAA, if there is no majority, the decision of the Chair is the decision of the Board.

13The Multi-Site LOU that was awarded was a financial middle ground. It provided that when a social worker was assigned to report to work at an alternate work location, the social worker would be compensated based on a fixed number hours per location. Two locations were fixed at one hour and two at 1.5 hours. Then, starting in 2018 and thereafter, the maximum amount was capped at one hour. There was no compensation for travel to and from the employees’ designated home work site (i.e., the Orillia hospital).

ISSUES

14There are two issues before us:

(1) whether the Board erred in failing to provide the Applicant with the requisite level of procedural fairness; and,

(2) whether the Board’s decision was unreasonable.

15The parties agree that there is no standard of review for the first issue – the alleged breach of procedural fairness. On that issue, the question is whether the required level of procedural fairness was provided to the Applicant.

16It is also agreed that the standard of review on the second issue is reasonableness. Further, since interest arbitrators exercise a broad discretion, a high degree of deference must be accorded to the arbitrator’s application of the factors relevant to determining what to award: SEIU, Local 1 v. Participating Nursing Homes, 2013 ONSC 4650 (Div. Ct.), at para. 10-12.

1. Procedural fairness

17The Applicant submits that there was a breach of procedural fairness because it ought to have been given the opportunity to make submissions on the specific terms of the Multi-Site LOU. Having regard for the factors set out in Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 and the statutory scheme, including s. 5(8) of the HLDAA, we are not persuaded that this was a breach of procedural fairness.

18The procedures used by the panel provided the appropriate level of procedural fairness to the parties. The Applicant and the Respondent were permitted to file written submissions in advance, then participate in an oral hearing, and then file reply submissions following the hearing. Travel time compensation was squarely at issue, with each side taking its position and the Award falling between those two more extreme positions. Under the HLDAA, the Chair was not obligated to pick between the positions advanced by the parties, but was free to work within those parameters, as he did.

19This is not a case where the Chair ordered a completely different type of remedy. A payment for travel time between the figures submitted by the parties ought to have been within the Applicant’s reasonable expectations when providing its submissions before, during and after the hearing. See, e.g. City of Guelph v Guelph Fire Fighters Association, 2018 ONSC 135 (Div. Ct), at para. 29.

20The Applicant relied on Canadian Union of Postal Workers v Canada Post Corporation, 2007 51335 (ONSCDC), yet that decision did not arise from an interest arbitration. It concerned a rights interpretation in relation to the termination of an employee. The HLDAA, in its scheme and language, sets out a more expeditious and less formal process for interest arbitrations, which is more akin to a “summary” process, rather than the formal process that applies for a discharge grievance.

2. Was the Board’s decision unreasonable?

21The Applicant submits that the Award is unreasonable for two reasons:

(1) the reasons for decision of the Chair are insufficient; and

(2) the outcome is unreasonable.

22On the first point, the Applicant submits that the reasons for decision must be justified, transparent and intelligible and instead the reasons are scant and fail to make clear the basis upon which the Chair reached his decision. The Applicant also submits that the reasons are deficient because they fail to demonstrate whether the Chair took the criteria outlined in the HLDAA into consideration, as is required by that legislation, as well as other interest arbitration principles.

23The issue for the court is whether the decision is, as a whole, reasonable. A challenge to the sufficiency of reasons forms part of the reasonableness analysis; it is not a freestanding basis to quash a decision. The reasons must be read together with the record and the outcome and serve the purpose of showing whether the result falls within a range of possible, acceptable outcomes: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

24Reasons should be read as a whole and not overly dissected or parsed, and need not address all issues raised by the parties. The reasons need only “adequately explain” the basis for the decision, allowing the reviewing court “to understand why the tribunal made its decision and permit [the court] to determine whether the conclusion is within the range of reasonable outcomes”: Newfoundland Nurses, at para. 16.

25In reviewing a decision, the court must first seek to supplement the decision maker’s reasons before it seeks to subvert them: Newfoundland Nurses, at para. 12. The effort to supplement the reasons includes considering the record and reasons “which could be offered” in support of the decision: Newfoundland Nurses, at paras. 11-12; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 48. The dissenting reasons also provide additional context for what was being considered.

26While his reasons are short, the Chair specifies the bases upon which he came to his decision. The reasons specify that the Chair took into account all the relevant statutory and jurisprudential factors. Enumerating every specific factor is not required. The reasons then focus on the replication principle.

27The Applicant acknowledges, as was accepted by the Chair, that the purpose of interest arbitration was to replicate the results that would have been achieved by the parties though free collective bargaining. The Applicant further acknowledges that one of the primary tools adopted by interest arbitration boards in determining the likelihood of replication is comparators. These matters were the focus of the reasons for decision.

28The submissions of both parties to the Board dealt with specific comparators advanced by them. The Applicant disputed then, and is disputing now, the Union’s comparators. The Applicant essentially asks this Court to re-evaluate the comparators and reach a different conclusion about their relevance. The Applicant further submits that the Chair failed to consider whether the travel time issue was of such a priority that the Union would have been prepared to go on strike. However, both of these issues are addressed by the Chair, albeit generally, in the reasons for decision.

29The reasons note that these employees had a superior benefit that was unusually advantageous relative to other multi-site agreements covering travel time and that replication would have resulted in the maintenance of some part of that superior benefit, but more commensurate with what applied in other multi-site hospital agreements with the Respondent.

30The Applicant further submits that the Award is unreasonable because the Chair failed to consider other applicable interest arbitration principles.

31The Applicant submits that it is a principle of interest arbitration that extraordinary improvements to the collective agreement are properly characterized as breakthrough provisions, which are generally not appropriate for the interest arbitrator to impose. However, this benefit had formed part of the compensation for these social workers since 2005 and it was maintained when the social workers became members of the Union through the terms of the settlement of certification. It was reasonable not to proceed on the basis that this was an extraordinary improvement.

32Similarly, a trade-off was not required to make the Multi-Site LOU reasonable in these circumstances given that the social workers had previously received that greater benefit. It was reasonable not to require that the Union otherwise needed to prove the need for the Multi-Site LOU as well.

33The Applicant has not demonstrated that the decision to award the Multi-Site LOU is unreasonable. It falls within a range of possible, acceptable outcomes. The Board, exercising a broad discretion that is deserving of a high degree of deference, made an award that fell between the positions proposed by the parties.

34The application for judicial review is therefore dismissed.

CONWAY J.

35I have endorsed the Application Record of the Applicant as follows: “For oral reasons delivered in court today, the application for judicial review is dismissed. In accordance with the agreement of counsel, the Applicant shall pay costs in the amount of $7500, all inclusive, to the Respondent.”

___________________________ MATHESON J.

I agree