CITATION: UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home, 2023 ONSC 2218

DIVISIONAL COURT FILE NO.: 024/22

DATE: 11/04/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Stevenson, and Gomery JJ

BETWEEN:

UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175

Applicant

– and –

CVH BIRCHWOOD TERRACE NURSING HOME and PETER CHAUVIN

Respondents

Douglas J. Wray for the Applicant

Frank Cesario and Danika Winkel for the Respondent CVH Birchwood Terrace Nursing Home

No one appearing for the Respondent Peter Chauvin

HEARD by Videoconference in Toronto: October 26, 2022

REASONS FOR DECISION

Justice Sally Gomery

[1] United Food and Commercial Workers Canada, Local 175 (the “Union”) asks this court to set aside a December 14, 2021, arbitration award by Arbitrator Peter Chauvin (the “Award”). The Arbitrator declared that CVH Birchwood Terrance Nursing Home violated its collective agreement with the Union over many years by routinely hiring non-unionized workers as employees and failing to deduct union dues from their pay. Having upheld the grievances, however, the Arbitrator declined to grant the Union any further relief beyond the declaration.

[2] The Union contends that the Arbitrator’s failure to grant any other remedies is unreasonable. It says that, in doing so, the Arbitrator amended or ignored the collective agreement; he did not follow well-established principles in other arbitral caselaw; and he failed to solve the problem he himself identified. The Union asks that the grievances be remitted back to the Arbitrator or to another arbitrator for a new determination on remedies.

[3] CVH Birchwood Terrace Nursing Home (the “Employer”, “Birchwood”, or the “Home”) argues that the Union is seeking to relitigate the outcome of the grievances and says that this court should defer to the Arbitrator’s exercise of discretion with respect to the appropriate remedy. The Employer argues that the circumstances of this case are unique, and that the Arbitrator’s decision not to award anything other than declaratory relief makes labour relations sense for the parties and meets the reasonableness standard.

[4] For the reasons that follow, I find that the Union has not established that the Award is unreasonable. I would accordingly dismiss the application for judicial review.

Facts underlying the grievances

[5] The facts underlying the grievances were set out in an agreed statement of facts filed by the parties.

[6] Birchwood is a long-term nursing home in Kenora, a small community in northern Ontario close to the Manitoba border. In art. 2.01 of a collective agreement signed in June 2015 (the “Collective Agreement”), the Employer recognizes that the Union was the bargaining agent for certain categories of employees including personal support workers (PSWs) and registered practical nurses (RPNs). The Collective Agreement further provides that:

2.03 Persons (excluding the dietary and housekeeping supervisors) whose regular jobs are not in the bargaining unit shall not work on any jobs which are included in the bargaining unit except for the purposes of instruction, experimenting, or in emergencies when employees are not available.

3.01 The Employer agrees to retain in its employ within the bargaining unit as outlined in Article 2 of this Agreement only members of the Union in good standing….

3.02 The Employer agrees to deduct from each employee affected including new hires, the amount of weekly Union Dues and Initiation Fees… .

[7] For many years, the Employer has struggled to recruit and retain an adequate number of PSWs and RPNs. These efforts have included advertising, working with recruitment agencies and participating in job fairs, partnering with college PSW programs, and negotiating the creation of a temporary bargaining unit position so that some PSW duties can be performed by other employees. The efforts did not, however, include increasing the wages and benefits of unionized PSWs and RPNs other than as required as a result of collective bargaining or arbitral awards.

[8] In 2016, the Employer entered into an agreement with Gifted Hands Health Services Inc., a temporary personnel agency in Pickering, Ontario. Under this agreement, Gifted Hands began assigning PSWs and RPNs to work at Birchwood. These PSWs and RPNs performed the same duties, and were subject to the same work rules, policies, and procedures, as Union members working at Birchwood. The agency workers were integrated with unionized staff and worked interchangeably with them. The Employer did not, however, consider that the agency workers were subject to the Collective Agreement, and no union dues were collected from them.

[9] Using agency workers was significantly more expensive for the Employer. Agency workers earned significantly more than permanent employees. PSWs earned a maximum of $20.57 under the Collective Agreement, as opposed to $25 earned by PSWs assigned by Gifted Hands to work at Birchwood. RPNs employed by Birchwood earned a maximum of $24.75 under the Collective Agreement while RPNs hired through Gifted Hands were paid $40 per hour.[^1] The Employer also covered the cost of the agency workers’ hotel accommodations while in Kenora. Unsurprisingly, Birchwood’s attempts to persuade agency workers to sign on as permanent employees were uniformly unsuccessful.

[10] In response to the COVID-19 pandemic in March 2020, the Ontario government issued a regulation relaxing the education, certification, and regulatory requirements for PSWs and RPNs, and allowing long term care homes such as Birchwood to assign non-unionized staff and to hire temporary workers to perform bargaining unit work.[^2] In September 2020, the Employer entered into an agreement with a second temporary healthcare personnel agency, Alliance Healthcare Staffing Services Inc. in Selkirk, Manitoba. Under the agreement, PSWs and RPNs were assigned by Alliance Healthcare, as they had been through Gifted Hands, to work alongside permanent staff at Birchwood.

[11] As of January 2021, Birchwood had six unionized PSWs and seven unionized RPNs. On average, they worked alongside four full-time agency workers. Agency workers accordingly made up just under a quarter of PSW and RPN staff at Birchwood at that time, doing exactly the same work as the unionized staff.

[12] Regulations under the Long-Term Care Homes Act, 2007, SO 2007, c 8 (the “2007 Long-Term Care Act”) require long-term care homes like Birchwood to have a minimum number of PSWs and other staff.[^3] In 2018 and again in 2020, the Ministry of Long Term Care found that, even when agency workers were taken into account, the Employer had chronic staffing shortages that violated statutory and regulatory requirements, and it ordered Birchwood to comply with the law.

The Arbitrator’s Decision

[13] In his Award, the Arbitrator considered whether the Employer’s use of agency workers violated the Collective Agreement; and if so, what remedy or remedies were appropriate.[^4]

The Arbitrator’s finding that the Employer had violated the collective agreement

[14] The Union contended that the Birchwood was the real employer of the agency workers, and that the employment of non-bargaining unit workers to do the work of unionized PSWs and RPNs violated the Collective Agreement. The Employer argued that Gifted Hands and Allied Healthcare were the true employers of the agency workers.

[15] The Arbitrator found that many of agreed facts indicated that Birchwood was the real employer of the Gifted Hand agency workers. Among other things:

• The Employer approved all hours worked by them, and was solely responsible for scheduling them;
• It established all rules and procedures applicable to the agency workers in the workplace, and provided them with all supplies and equipment for their work;
• The Employers had the exclusive right to determine what work the agency workers performed and exclusively controlled, supervised, and managed their day-to-day activities;
• The agency workers performed the same work as bargaining unit PSWs and RPNs, worked interchangeably with them, were integrated into the operation of Birchwood and wore Birchwood ID cards;
• Agency workers worked exclusively for Birchwood while they were in Kenora;
• The Employer was empowered to identify any work performance issues on the part of agency workers and provided additional training and coaching; and
• The Employer could require that an agency worker no longer be assigned to Birchwood.

[16] The Arbitrator also found that some agency workers had a long-term relationship with the Employer. They regularly worked much more than full-time hours, and remained in Kenora, working at Birchwood, for months at a time. One agency worker worked at Birchwood continuously between March 2019 and December 2020, a period of 20 months; others working in Kenora during this period remained for between three and ten months.

[17] The Arbitrator acknowledged that some facts could support the position that Gifted Hands was the real employer of the agency workers. The agency recruited the workers and assigned them to Birchwood, paid their wages and benefits, and ensured that they had necessary qualifications and training. He concluded, however, that these circumstances were not determinative of the issue, given “the employment and labour relations functions of the direct and fundamental care, control and supervision that the Home clearly exercises over the agency workers once they are working at the Home, and the fact that the agency workers work side-by-side with the bargaining unit employees, doing the same work that is essential to and integrated into the core business of the Home”: Award, at para. 41.

[18] Although the arrangements with respect to Alliance Healthcare agency workers differed in some respects from the Gifted Hands arrangements, the Arbitrator did not find these differences significant.

[19] As a result, the Arbitrator concluded that Birchwood, rather than Gifted Hands and Alliance Healthcare, was the true employer of the agency workers assigned to the Home. He found that the agency workers were contracted by the Employer to work side-by-side bargaining unit PSWs and RPNs, performing the same work, within the Home, under the Home’s supervision and control. He accordingly held that the Employer’s use of these workers amounted to a contracting-in violation of the Collective Agreement.[^5]

The Arbitrator’s determination of the appropriate remedy

[20] The Arbitrator considered a range of remedies, including declaratory relief; an order requiring the Employer to pay retroactive union dues or damages; a cease and desist order; and an order requiring the Employer to pay bargaining-unit higher wages. He ultimately rejected the Employer’s submission that he should grant no remedy at all but declined to grant any other remedy than a declaration that the Employer’s use of agency workers breached the collective agreement.

[21] Based on Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 SCR 616, at para. 45, the Arbitrator emphasized that he had the discretion to fashion a remedy that made labour relations sense. He observed that the result should take into account “the realities of the workplace and the industry environment in which the parties function”, as stated in Alberta Health Services and UNA, 2021 CarswellAlta 804.

[22] The Employer took the position that the Arbitrator should decline to grant any remedy due to extenuating circumstances or, in the alternative, that he should only declare the Employer’s violation and not grant any other remedies. It argued that it had no choice but to hire agency workers because it was required to keep certain minimum staffing levels under the 2007 Long-Term Care Act, but had been unsuccessful, despite its efforts, in attracting sufficient PSWs and RPNs to work as permanent staff in Kenora.

[23] The Arbitrator reviewed each of the extenuating circumstances relied on by the Employer that, in its submission, justified its failure to comply with the Collective Agreement. He accepted that the Employer “did its best” to recruit permanent employees, given that hiring agency workers was more expensive and that Birchwood was required to meet minimum staffing requirements mandated by the 2007 Long-Term Care Act. The Arbitrator also noted that the Employer had always first provided its bargaining unit PSWs and RPNs with the opportunity to work available shifts and overtime before assigning agency workers to any shifts that remained unstaffed.

[24] The Arbitrator rejected the proposition, however, that the legislated minimum staffing requirement invalidated the terms of the Collective Agreement. He found that the 2007 Long-Term Care Act and the Collective Agreement “can and do co-exist”: Award, at para. 71. He accordingly did not find that the minimum staffing requirements excused the Employer’s violation of the agreement. He distinguished the facts of this case from those of Alberta Health Services, given that the employer’s temporary and occasional use of agency workers in that case was “much less, and different in nature”: Award, at para. 80.

[25] The Arbitrator instead adopted the reasoning of arbitral decisions relied on by the Union to find that the Employer’s violation of the collective agreement should be recognized through a declaratory order. These decisions included Riverdale Hospital v. CUPE, Local 79, 1973 CarswellOnt 1559; Red River Place v. MNU, Local 92, 2001 CarswellMan 963 [alternatively Red River Place (Re), [2001] MGAD No 51]; and St. Jude’s Anglican Home, 1996 CarswellBC 3171, 1996 20272. The Arbitrator found the facts underlying Red River Place, in particular, “very similar” to those in this case, in that both Birchwood and Red River Place had significant difficulties in attracting and retaining nurses; they entered into agreements with private agencies for agency workers; they paid these agency workers more than the collective agreement rate and did not deduct union dues; the agency nurses were integrated into the home’s regular work schedule; the home used some of the agency workers continuously, on a regular basis; and the agency nurses declined offers of permanent employment.

[26] In Red River, as in Riverdale and St. Jude’s, arbitration tribunals rejected employers’ arguments that recruitment problems justified the use of non-unionized workers, even where the employer could show that the unionized workers received as much work as they wanted and that agency workers might stop accepting assignments if they were subject to a collective agreement. In the Arbitrator’s words, the cases supported the Union’s position that “if the facts support that there has been a contracting-in violation of the collective agreement, an Arbitrator should make such a ruling, and not decline to do so”: Award, para. 78. He stated that the principles expressed in these cases “ought to be followed”, despite the extenuating circumstances relied on by the Employer: Award, at para. 81.

[27] The Arbitrator also rejected the Employer’s argument that its hiring of agency workers fell under a provision of the Collective Agreement permitting the use of non-bargaining unit workers in emergencies. The Arbitrator found that the use of agency workers over the preceding five years at Birchwood “has not been in response to any particular event or emergency, but has been regular, steady, ongoing, and for very prolonged periods of time”: Award, at para. 82.

[28] As a result, the Arbitrator held that the Union was entitled to a declaration that the Employer had contracted in agency workers in violation of the Collective Agreement. He then considered whether he should grant any other remedy.

[29] The Arbitrator held that the performance of bargaining unit work by outside workers in violation of a collective agreement does not necessarily impair the integrity of the bargaining unit. It is instead a question of fact in each case. Based on his review of other arbitral decisions, the Arbitrator found that there must be some evidence that one or more bargaining unit employees have suffered a loss or opportunity, or that they might be laid off. He agreed with the observation in Alberta Health Services, at para. 112, that the temporary use of agency nurses is not necessarily destructive to the collective bargaining relationship in every case.

[30] Based on the agreed facts in this case, the Arbitrator was not satisfied that the integrity of the bargaining unit had been undermined by the contracting-in of agency workers. His reasoning on this point is summarized at paras. 98 and 99 of the Award:

The Home always offered regular and overtime hours to its own employees before offering those hours to the agency workers. There is no evidence that anyone who wanted to be a bargaining unit employee was not hired by the Home, or that any of the Home’s existing bargaining unit employees lost any hours as a result of the agency workers. Rather, the Home’s PSWs and RPNs continued to be fully employed.

Under these circumstances, there are insufficient grounds to rule that the bargaining unit was undermined by the contracting-in. If there was any evidence that there was anyone who was willing to be a bargaining unit employee, then it could make sense to make an Order for some union dues that would have been actually lost by the Union. However, there is no such evidence. Rather, the evidence is that the Home tried to hire employees, including to hire some of the agency workers, but was unable to do so. Accordingly, there was no individual who could have been hired as an employee, and who could have paid union dues to the Union. As such, I do not make an Order for the payment of union dues.

[31] The Arbitrator declined to issue a cease and desist order, finding that this would not make labour relations sense. This remedy would not solve the staffing problem at Birchwood, but simply exacerbate it, leaving residents of the Home without care.

[32] Finally, the Arbitrator held that, since this was not an interest arbitration, he did not have jurisdiction to order the Employer to pay higher wages, in the hope of attracting PSWs and RPNs to sign on as permanent employees.

[33] Having canvassed possible orders, and “due to the very unique facts and difficult realities of this case”, the Arbitrator issued a declaration and no other remedy: Award, at para. 102. In doing so, he recognized that the resolution of the long-standing staffing issues at Birchwood might require more than the remedies available in the arbitration before him.

The standard of review

[34] As held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, reasonableness is the applicable standard of review in a judicial review application such as this. In its recent decision in Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, at paras. 55 to 58, the Ontario Court of Appeal summarized the principles that flow from the Supreme Court’s analysis, citing to Vavilov:

Courts are to intervene in administrative matters only if it is truly necessary to safeguard the legality, rationality, and fairness of the administrative process. Such reviews start from the principle of judicial restraint and respect for the distinct role of decision makers (para. 13). The reviewing court should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue, and should focus on whether the applicant has demonstrated that the decision is unreasonable (para. 75).

In conducting a reasonableness review, the court must focus on the decision actually made by the decision maker. The court should refrain from deciding the issues itself. It does not ask what decision it would have made in place of the administrative decision maker, attempt to ascertain the range of possible conclusions, conduct a de novo analysis, or seek to determine the correct solution. Instead, the reviewing court considers only whether the actual decision, including both the rationale for the decision and the outcome to which it led, was unreasonable (para. 83).

Where reasons have been given, the reasonableness review puts those reasons first. The court must examine the reasons with respectful attention, seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (para. 84).

A reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that bore on the decision (para. 85). It bears the hallmarks of reasonableness – justification, transparency, and intelligibility (para. 99).

[35] The Court of Appeal identified the two types of error that may render an administrative tribunal’s decision unreasonable at paras. 59 and 60 of Turkiewicz, again referring to the Supreme Court’s decision in Vavilov:

Two types of fundamental flaws can render a decision unreasonable. The first is a failure of rationality internal to the reasoning process (para. 101). To be reasonable, a decision must be based on reasoning that is both rational and logical. The reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic (para. 102).

The second type of fundamental flaw arises when a decision is untenable, in some respect, in light of the relevant factual and legal constraints that bear on it (para. 101). Elements in this evaluation include: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies (para. 106). The governing statutory scheme is likely to be the most salient aspect of the relevant legal context (para. 108)

[36] Turkiewicz involved the judicial review of decisions by the Ontario Labour Relations Tribunal. The Court of Appeal held that the expertise of that Tribunal informed the reasonableness analysis, again citing to Vavilov:

[T]he reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting [a] reasonableness review.” Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.

Analysis

[37] The Union argued that the Arbitrator’s decision is unreasonable because he:

(1) Amended or ignored the collective agreement;

(2) Failed to follow prior arbitral caselaw;

(3) Relied on distinguishable cases; and

(4) Did not resolve the problem giving rise to the grievances.

(1) Did the Arbitrator ignore or amend the collective agreement?

[38] The Arbitrator held that Birchwood was the true employer of the agency workers. In the wake of this finding, the Union contends that it was not open to the Arbitrator to grant only declaratory relief. Article 9 of the collective agreement states that an arbitrator shall not be vested with the power to change, modify, or alter any of the terms of the agreement. The Arbitrator was accordingly obliged to apply the terms of the collective agreement and require the payment of union dues for “each employee” (art. 3.02) and to order the Employer to retain “only members of the Union in good standing” as employees doing bargaining unit work (ar. 3.01).

[39] The Union cited only one case in support of this argument: Newfoundland and Labrador Teachers’ Association v. Avalon East School District No. 10, 2003 5912 (NL SC). But, contrary to its submission, this decision does not support the proposition that an arbitrator necessarily exceeds his jurisdiction by limiting the remedy to declaratory relief in a case like this.

[40] In Newfoundland and Labrador Teachers’ Association, a labour arbitration board initially refused to recognize that an employer had clearly breached its collective agreement. On a judicial review application arising from that decision, Justice Orsborn chastised the board for failing to recognize the breach and referred the case back to the board so that it could determine the remedies flowing from the breach. In response, the board issued a second decision in which it “reluctantly” found that the employer had “technically” breached the collective agreement but stated that no remedy was available to the grievors. On the judicial review application from this decision, Orsborn J. held that, in all of the circumstances and “because of the reasons offered by the board”, it was both “patently unreasonable and [an] improper exercise of the jurisdiction” for the board to have failed to grant “any effective remedy”: Newfoundland and Labrador Teachers’ Assn, at para. 32.

[41] Newfoundland and Labrador Teachers’ Association does not establish that it is never appropriate for a labour arbitrator to do what the Arbitrator did in this case. Orsborn J. explicitly left open the possibility that it might be appropriate in some cases to limit the remedy to a declaration of breach, writing at para. 31 that:

It may be that a board, in a properly reasoned decision, has the jurisdiction to make an award of this nature, with a breach but no consequence and no order for future compliance. On this latter point, see Re School District No. 75 (Mission) and Mission Teachers’ Union (1997), 1997 25142 (BC LA), 61 L.A.C. (4th) 8th at p. 15 (B.C. Arb.)). [Emphasis in the original.]

[42] The jurisdictional problem with the labour board’s decision in Newfoundland and Labrador Teachers’ Association arose not only from its choice to issue only grudging declaratory relief, but its failure to consider any other remedy or to explain why no other remedy was appropriate.

[43] The Arbitrator’s decision in the case at bar does not suffer from these defects. He cited other arbitral decisions supporting limited declaratory breach for a violation of a collective agreement, and explained why, based on his appreciation of the evidence, he concluded that a declaration was the only appropriate remedy in this case.

[44] I accordingly conclude that it was not unreasonable, in principle, for the Arbitrator to limit the relief granted to declaratory relief.

(2) Did the Arbitrator fail to follow prior arbitral caselaw?

[45] The Union faults the Arbitrator for failing to follow the result in other decisions arising from the hiring of agency workers in unionized healthcare institutions. In Riverdale Hospital and Red River Place, arbitrators held that the agency workers should be treated as employees covered by the collective agreement and ordered the employers to pay union dues. In St. Jude’s Anglican Home, the arbitrator held that the agency employees were “not exempted from the requirements of the collective agreement” and reserved jurisdiction to deal with any disputes relating to the implementation of the award. Although the Arbitrator acknowledged that these cases were factually similar to this one and relied on them to declare that the Employer had breached the collective agreement, he declined to follow the precedent they set on remedy nor to explain why, in his view, this was appropriate.

[46] Having found that the facts in Red River Place were “very similar” to this case and having relied on that case, as well as St. Jude’s and Riverdale Hospital, to reject the Employer’s argument against any remedy, I agree that the Arbitrator ideally would have explicitly addressed how he distinguished those cases in concluding that no remedy other than a declaration should be granted. The arbitration board in Red River Place stated that contracting-in “cannot be permitted if it has the effect of eroding the integrity of the bargaining unit, and that is the effect here”: Red River Place, at para. 203. The arbitrator in St. Jude’s went farther, stating as a general proposition at para. 32, that contracted-in work is “inherently destructive of the bargaining relationship” and “contrary to the obligations undertaken by the employer in the collective agreement”. The Arbitrator’s contradictory conclusion in this case, despite the two cases’ strong factual similarities, could give rise to concerns about the justification for the remedies (or lack thereof) in this case.

[47] Neither courts nor administrative tribunals are held to a level of perfection in their drafting. The Arbitrator explained at length why he concluded that he could not grant any remedy beyond a declaration on the facts of this case, citing arbitral caselaw to support his reasoning. The situation in Red River Place is factually distinguishable from the case at bar in one critical respect. The grieving nurses in Red River Place contended that their employer had not made every reasonable effort to recruit bargaining unit members to fill the positions and shifts, including by offering overtime. In the case at bar, the Union acknowledged that the Employer had unfailingly offered all available shifts and overtime to bargaining-unit PSWs and RPNs before assigning them to agency workers. This circumstance was a factor that the Arbitrator found particularly relevant in determining that no retroactive union dues should be ordered payable.

[48] I conclude that the Arbitrator’s reasons for his implicit rejection of the remedy in Red River Place and Riverdale Hospital are intelligible and support his conclusion. His reasoning could have been more transparent. This flaw does not render his decision unreasonable, however.

(3) Did the Arbitrator rely on distinguishable cases?

[49] The Union contends that the seven arbitral decisions cited by the Arbitrator to reject the remedies sought by the Union are factually distinct from the situation in this case. None of the cases dealt with contracting-in but with other violations of a collective agreement, such as contracting-out, assigning work to managers excluded from the bargaining unit, and failing to respect minimum staffing levels in the agreement. Although the Union concedes that administrative decision makers are not bound by stare decisis, it cites the Supreme Court’s statement that parties “affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker”: Vavilov, at para. 129.

[50] It is true that none of the seven cases mentioned by the Arbitrator arises from the same scenario as this one. On my reading of the Award, however, the Arbitrator did not cite these cases for their factual similarity, but for the general principle that a bargaining unit is not automatically undermined by an employer’s assignment of work to a non-bargaining unit employee, and that some injury to the interests of unionized workers must be proved. The Union has not explained why this principle is inapplicable simply because a case involves contracting-in rather than any other type of violation.

[51] Again, it would have been preferable had the Arbitrator directly addressed why he reached a different conclusion on remedy than the tribunals in Red River Place and Riverdale Hospital, given his reliance on the principles in these cases for other purposes and their factual similarity to the situation at Birchwood. He instead cited a passage from Alberta Health Services, a case that he described earlier in his reasons as involving violations of a collective agreement “much less, and different in nature” than those in this case. The Arbitrator never contended, however, that the situation in Alberta Health Services was factually similar to this one. He relied on the passage cited as further support for the principle that an arbitrator should not grant a monetary remedy in the absence of evidence that a bargaining unit has suffered an actual injury through the assignment to non-bargaining unit individuals of work reserved for union members.

[52] Having found support in arbitral caselaw for his approach on remedy, I conclude that it was reasonable for the Arbitrator to conclude that the particular facts of this case did not give rise to any relief aside from a declaration.

(4) Did the Arbitrator fail to resolve the problem giving rise to the grievances?

[53] At para. 100 of the Award, the Arbitrator stated that he should not impose a remedy unless he was satisfied the remedy “will actually solve, rather than exacerbate, the problem being addressed”. The Union contends that the Award does not resolve the issues raised by the grievances, but makes the situation worse, by condoning the Employer’s longstanding and repeated violation of the Collective Agreement and creating uncertainty about the rights of the agency workers and the Union.

[54] The Arbitrator himself recognized that the situation would not be resolved through declaratory relief alone. On his view of the law and the facts and his jurisdiction, however, he could not order any other remedy that would mitigate the staffing crisis. A cease and desist order, for example, would not enable the Employer to hire more permanent PSWs and RPNs, but rather reduce the number of workers available to care for Birchwood residents. It was this finding that prompted the Arbitrator’s statement at para. 100 about the need to avoid orders that would exacerbate the situation.

[55] The Arbitrator observed that the scope of available remedies that he could order was limited, writing at para. 101 that:

The Union did not request an Order requiring that the Home pay higher wages so as to hopefully attract persons to work at the Home as employees. The Union acknowledged that this is not an interest arbitration, and that I do not have jurisdiction to order changes to the Collective Agreement, such as higher wage rates. The Collective Agreement prohibits that as well, while I serve as a rights Arbitrator in this case. Possibly the solution to this problem lies in an interest arbitration. However, I am not sitting as an interest arbitrator.

[56] The Arbitrator further noted, at para. 103, that the situation at Birchwood was longstanding, despite the parties’ attempts over the preceding five years to resolve it, and again suggested that the solution might lie outside the context of this arbitration:

The Parties have been trying to solve these staffing and labour relations problems for a long time. The first Grievance was filed in 2016. The Collective Agreement expired in June 2017. There has not been an interest arbitration Award regarding the Collective Agreement since then. The parties engaged in four days of mediation regarding the Grievances, but could not resolve the Home’s recruitment problem, or the Union’s concerns regarding the agency workers. No doubt, the parties also had numerous other discussion regarding this outside of those mediation sessions. When there was no resolution of the problems, the parties arbitrated this matter in the summer of 2021. All of this, and this Award, indicates that the resolution of this problem may require more than the remedies that are available and appropriate in a rights arbitration Award. Rather, and as was stated by Arbitrator Freedman, in Red River Place, supra, it may require “some joint action by the parties, or if necessary, action at a higher administrative or legislative level”.

[57] I have considerable sympathy for the Union’s position on this application. The Employer has been violating the Collective Agreement from the time it was signed. It claims it has done everything it could to hire more permanent PSWs’ and RPNs, but has not done one obvious thing: offering existing and potential employees higher wages. The Employer’s hiring of agency employees has resulted in the establishment of two classes of workers at Birchwood, with non-unionized workers working alongside bargaining unit employees, doing exactly the same tasks under the same management, but at a higher wage and with their accommodations paid for. The Employer has attempted to justify its approach based on its need to meet regulatory staffing requirements. Notwithstanding its violation of the collective agreement, however, its approach has not put it in a position to comply with the 2007 Long-Term Care Act or Ministry orders issued pursuant to it. In light of this, I have great difficulty understanding how the situation at Birchwood has not undermined the bargaining unit, since the message it sends is that it is far better to be a non-unionized employee.

[58] However, the fact that I would have decided this case differently does not mean that the Arbitrator’s decision on remedy should be set aside. The Arbitrator has subject-matter expertise and his reasons withstand the review mandated by Vavilov and Turkiewicz. His Award did not create the situation and it is difficult to gainsay his finding that none of the orders he had the jurisdiction to make would improve the state of affairs at Birchwood in the short term. The Arbitrator clearly understood that something further had to be done but, in his view, there was no other appropriate remedy than a declaration. Given his explanation for this conclusion, I cannot find his decision unreasonable.

Disposition

[59] I would dismiss the application for judicial review, with $6,000 in costs to the Employer, based on the parties’ agreement on costs.

S. Gomery, J.

“I agree”

N. Backhouse, J.

“I agree”

S. Stevenson, J.

CITATION: UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home, 2023 ONSC 2218

DIVISIONAL COURT FILE NO.: 024/22

DATE: 11/04/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Stevenson, and Gomery JJ

BETWEEN:

UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175

Applicant

– and –

CVH BIRCHWOOD TERRACE NURSING HOME and PETER CHAUVIN

Respondents

REASONS FOR JUDGMENT

Date of Reasons for Judgment: April 11, 2023

Date of Release: April 11, 2023

[^1]: The Employer in fact paid more for agency workers than these wage differences would suggest. It paid a total of $40 per hour to Gifted Hands for PSWs and $60 per hour for RPNs.

[^2]: Regulation 77/20 under the Emergency Management and Civil Protection Act, RSO 1990, c E.9.

[^3]: This Act was replaced in 2021 by the Fixing Long-Term Care Act, 2021, SO 2021, c 39, sch 1. Although the new Act was in force by the time the Arbitrator issued the award in this case, he does not say whether the change in legislation has any impact on his decision.

[^4]: The Arbitrator also considered and rejected arguments raised by the Employer about the scope of the grievances. This issue was not raised on this application and so I will not review the Arbitrator’s determination on this point.

[^5]: In light of this conclusion, the Arbitrator found it unnecessary to consider whether this practice also constituted a contracting-out violation.