Re The Crown in right of Ontario (Ministry of Government Services) and Ontario Public Service Employees Union
[Indexed as: Ontario (Ministry of Government Services) and O.P.S.E.U. (Re)]
File No. 2002-2441 Ontario Crown Employees Grievance Settlement Board K. Petryshen
Heard: February 27, 2006 Decision rendered: March 27, 2006
AWARD
This is a proceeding in connection with what is commonly referred to as the Union's bargaining unit integrity grievance, which is dated June 12, 2002. Consistent with the Procedural Protocol developed by the parties in June of 2003 for dealing with this grievance, the Union advised the Employer that the services provided by Native Inmate Liaison Officers ("NILOs") in Northern Ontario constitute bargaining unit work. These services are provided pursuant to fee-for-service agreements ("the Program Agreements") entered into between the Crown in Right of Ontario as represented by the Minister of Community Safety and Correctional Services ("the Ministry") and various Service Providers. When the parties met to address the NILO issue in mediation on November 17, 2005, counsel for the Employer indicated that the Employer would notify the northern Service Providers of this proceeding. Counsel subsequently wrote to the Grievance Settlement Board ("the Board") requesting the opportunity for some of the Service Providers to participate in the proceeding as third parties. At a hearing on February 27, 2006, I entertained submissions on whether Service Providers are entitled to intervene as third parties and this decision addresses that issue. The Employer supported the efforts of the Service Providers to attain intervener status while the Union opposed the granting of intervener status. Four Service Providers appeared at the hearing seeking third party intervener status. Ms. T. O'Donnell appeared on behalf of three Friendship Centres, namely the Ne-Chee Friendship Centre located in Kenora, the North Bay Indian Friendship Centre and the Ininew Friendship Centre in Cochrane which provides a NILO to service the Monteith Correctional Complex. Mr. V. Pawis is a NILO who appeared on behalf of his own entity, Gawedo Kwa Nahnik Inc., the fourth Service Provider.
The bargaining unit integrity grievance was filed under the Collective Agreement between the Crown in right of Ontario as represented by Management Board of Cabinet and the Ontario Public Service Employees Union. As one would expect, the Service Providers are not a party to the Collective Agreement. The Union claims in the grievance that "The Employer is violating the Collective Agreement by employing Agency Staff, Fee for Service Staff and Consultants to perform bargaining unit work" It requests that the Employer "Immediately post and fill vacancies in accordance with Articles 6 and 56" and it seeks "Appropriate retroactivity, including union dues." In this specific proceeding, the Union asserts that the work performed by NILOs in their respective correctional institutions in northern Ontario is bargaining unit work. The Union does not claim or assert that the NILOs are employees of the Crown. As it made clear in Re Ontario (Ministry of Health and Long-Term Care) and O.P.S.E.U., #1942/94 (Fisher), which concerned the use of agency staff in the Trillium Drug Program, the Board does not have the jurisdiction to declare a NILO an employee of the Crown. The Union seeks an order directing the Employer to cease and desist engaging the northern Service Providers to perform bargaining unit work and to post the bargaining unit jobs as full-time or part-time positions, as warranted. Since June 2003, a considerable number of disputes arising from the grievance have been addressed under the Procedural Protocol. The vast majority of these disputes were resolved at the mediation stage. Only a handful of disputes proceeded to a hearing. To my knowledge, this is the first occasion where an agency, a fee-for-service provider or a consultant has sought standing to intervene in a proceeding. The Native Inmate Liaison Program ("Program") has been operating for a significant number of years. Mr. Pawis, for example, has been a NILO for approximately nine years. The services provided by the Service Providers and the obligations of the Service Providers and the Ministry can be ascertained by examining the terms of the Program Agreements. The parties filed four Program Agreements, one for each of the Service Providers who appeared at the hearing. The terms of the Program Agreements are virtually identical.
The Program Agreement contains two parts. The first part is the main body of the agreement, which sets out the obligations of the Service Provider and the Ministry. Without referring to all of the provisions in this part, I note that Article 2 sets out the duties of the Service Provider. The Service Provider is to consult with the Ministry in the development and operation of the Program, which shall be of a quality and standard acceptable to the Ministry, and any changes are to be approved by the Ministry. The Service Provider shall comply with any directives standards, policies, procedures and instructions issued in writing from the Ministry relating to the Program. The Service Provider is required to maintain individual files and to complete written reports on clients and forward these to the Ministry upon request. It is also required to provide the Ministry with the clients' progress. Pursuant to article 3, the Ministry agrees to pay an agreed to amount to the Service Provider for the services it is required to provide under the Program Agreement. Article 4 deals with the placement and withdrawal of clients. The Ministry is the final authority for the placement of clients in or removal from the Program. Article 5 provides that the term of the agreement is one year. Either party can terminate the Program Agreement upon ninety days prior written notice. Article 15 provides that the Courts of Ontario shall have jurisdiction to entertain any action or legal proceedings based on the provisions of the Program Agreement. Schedule "A", the second part of the Program Agreement, sets out the goal and objectives of the Program, as well as the responsibilities of the Service Provider and the NILO. The sections referring to the goal and the objectives read as follows: GOAL: To assist Native inmates serving terms of imprisonment in their successful reintegration into the community by providing culturally relevant programs, services and activities aimed at promoting Aboriginal healing and wellness. The Native Inmate Liaison Worker Program will address the unique needs of Native inmates within the "healing continuum" through support and services that promote healthy functioning with all aspects of their lives and their communities. OBJECTIVES: 1. To provide support, assistance, and rehabilitative care to Native inmates by offering cultural counselling and follow-up services and community resource information including referral and liaison services.
To provide the necessary cultural and spiritual resources required to deliver healing and wellness activities such as e.g. sweat lodge ceremonies, healing circles, smudging, drumming which will include where necessary Elders and other resource people as well as gathering and supplying the traditional ceremonial medicines for offender use.
To provide liaison services between Native inmates and the community to ensure access to resources aimed at meeting their educational, employment, housing, health or other identified needs.
The responsibilities referred to in schedule "A" are numerous. Without referring to them all, they include:
RESPONSIBILITIES: • Plan, organize and facilitate Native Programs and activities on a regular basis, providing an itinerary of events as requested by the institution.
Interview all Native inmates upon admission to inform them of programs and services available.
Assist Native inmates with the development and verification of Temporary Absence plans for work, education or treatment etc.
Act as a liaison between Native clients and staff/community groups/Probation and Parole services, Elders and Spiritual teachers, Native Community Corrections workers and other service providers.
Develop, coordinate and maintain regular cultural programs and cultural, social and spiritual activities that focus on positive personal growth.
Facilitate communication between Native inmates, their families, institutional staff and other agencies.
Actively establish community involvement in order to assist the offender in positive healing.
Assist with the development of discharge plans for Native inmates.
Provide offender counselling and assistance to Native inmates who wish to practice traditional ways (i.e. seasonal feasts, sweet grass ceremonies, sweat lodge ceremonies, spiritual guidance) and attend interfaith meetings within the institution where applicable and coordinate activities with Chaplain Services.
To actively seek cultural training for professional development.
Each Program Agreement provides that the NILO will provide services exclusively to clients of the Ministry. Three of the Program Agreements require the NILO to provide direct on site services five
days per week. The exception is the one involving the North Bay Jail, which provides for a part-time schedule. The Friendship Centres are non-profit native organizations operated by volunteers. Through a variety of programs, they provide cultural and other services to natives in urban areas thereby providing a link between natives and their native communities. By means of the Native Inmate Liaison Program, with its culturally related programs, the NILOs address the mental, physical and spiritual needs of native inmates. The staff of the Friendship Centres is not unionized. I was referred to a number of decisions which address the right of a third party to participate in a proceeding. A review of these decisions discloses the following general principles. An interest in the outcome of a proceeding is not enough to entitle a person to standing. As the Courts and arbitration boards have indicated, a person must be directly and necessarily affected by the decision before a right to receive notice and to participate in the proceeding arises. An indirect interest is not sufficient for the application of the audi alteram partem principle. Therefore, in any proceeding where a third party seeks standing, a tribunal or Court must determine whether the third party has a sufficient interest in the proceeding such that the denial of standing would be contrary to the principles of natural justice. The determination of whether a third party has a sufficient interest will depend on the circumstances of each case, taking into account in particular the subject matter being dealt with and the nature of the inquiry. A review of some decisions will serve to illustrate the type of interests which have been found to warrant the granting of standing to a third party. The Federal Court of Appeal in Re Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989]3F.C.611, had to determine whether the applicant was entitled to notice from the Public Service Staff Relations Board. While deciding that the applicant was so entitled in the circumstances of that case, the Court indicated that a mere financial interest arising from a contractual relationship with one of the parties would not be enough to justify giving the third party standing. At page 614, Marceau J.A. wrote as follows:
It is clear to me that mere interest in the eventual outcome of a proceeding before a tribunal, whether financial or otherwise, is not in itself sufficient to give an individual a right to participate therein. The demands of natural justice and procedural fairness certainly do not require so much and in any event it would be impossible in practice to go that far. In my judgment, to be among the interested parties that a tribunal ought to involve in a proceeding before it to satisfy the requirements of the audi alteram partem principle, an individual must be directly and necessarily affected by the decision to be made. His interest must not be merely indirect or contingent, as it is when the decision may reach him only through an intermediate conduit alien to the preoccupation of the tribunal, such as a contractual relationship with one of the parties immediately involved.
In Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission) (1995), 125D.L.R.(4th)471(S.C.C.), an arbitration board had determined that the applicant union had the right under its collective agreement with a telephone company to install cables on that company's support structure. The CRTC, without notice to the applicant union, directed the telephone company to permit cable firms to install their own cable on the support structures. The CRTC's ruling had a considerable impact on the work jurisdiction of the applicant union. In finding that the applicant union was not entitled to notice or to participate in the CRTC proceeding, and after quoting with approval the above passage in the judgment of Marceau J.A., L'Heureux-Dubé J., writing for the majority, wrote as follows: ...In my view, the TWU's interest in the proceedings before the CRTC was purely indirect. The CRTC decision concerned questions of telecommunications policy. The CTRC was required to decide on the best way to regulate a monopoly telephone company in order to preserve the public interest. The purpose behind the CRTC decision was totally unrelated to the "work jurisdiction" of the TWU. In fact, such a consideration would have been irrelevant to the CRTC decision. Consequently, the TWU had no relevant interest to represent before the CRTC. While the TWU may have been affected by the CRTC decision, the effect of this decision on the TWU was purely indirect. Accordingly, I conclude that audi alteram partem did not require that the TWU be provided with notice of the CRTC hearing. The TWU was not a party nor did it have a direct interest in the proceedings before the tribunal.
Finally, in Re Avenor Inc. and I.W.A. Canada, Loc. 2693 (1995), 52L.A.C.(4th)72(Bendel), the union alleged that the employer contravened the collective agreement when it contracted with Upsala Forest Products ("Upsala") to provide certain services. Given the potential impact on its business, Upsala requested the arbitrator to grant it intervener status. The arbitrator denied its
request. In his reasons, the arbitrator noted that there were three classes of arbitration cases in which standing was granted to third parties. In describing these three classes of cases and three related themes that help to identify the nature of the interest that justifies intervener status, he wrote as follows [pp. 76-79]: In the first class of cases — including Re Hoogendoorn, Re Bradley and Re Riverdale Health Care Facilities — the union was seeking a remedy that would have a direct and adverse impact on the interests of a particular employee. The employee was entitled to participate in the arbitration. In the second class of cases — including C.U.P.E. v. Canadian Broadcasting Corp. and Re Toronto (Municipality) — the union was seeking a ruling that work assigned to employees in a different bargaining unit should be assigned (or should have been assigned) to employees in the bargaining unit it represented. The other union was entitled to participate in the arbitration. In the third class of cases — including Re Prince George Regional Hospital, Re Petro-Canada Products, Re Fanshawe College and Re Calgary Television Ltd. — the union was seeking a ruling that persons who were nominally not within the bargaining unit it represented (whether because they had been treated as management or in a different unit, or because they were nominally employees of another employer) were really in its bargaining unit. The employee whose status was in dispute was entitled to participate in the arbitration, as was the "other employer". There are three related themes in these cases that serve to identify and describe the type of interest that justifies intervener status. Firstly, the nature of the interest the intervener wanted to protect in all these cases was germane to the core dispute. All the interveners, in these situations, were entitled to participate since they had interests that were grounded in labour or employment law.
- The second feature found in these cases is that the proposed intervener in all these situations had no recourse, or no effective recourse, to another tribunal to assert its rights.
The third feature found in these cases is that the interests the third parties wanted to protect were directly and necessarily affected by the proceedings in which they asked to participate. It was not enough that they might be incidentally affected as a result of a contractual relationship with one of the parties to the dispute... While acknowledging the practical consequences for Upsala, arbitrator Bendel summarized his conclusions based on the facts before him as follows [p. 81]:
In summary, the proposed interveners have no interest to pursue that is relevant to the core dispute before me, which is an allegation by the union that the employer has violated the collective agreement. Upsala retains, both as a matter of law and in practical terms, whatever rights and recourses it might have against the employer, as in the same way as its employees' rights and recourses against Upsala are unaffected. Their interest in this arbitration is merely indirect or contingent. According to the principles found in the case law, an interest of this nature does not warrant the granting of intervener status.
The parties also referred to the following decisions: Cardinal v. Kent Institution, [1985]2S.C.R.643, Re Ontario (Management Board Secretariat) and Assn. of Management, Administrative and Professional Crown Employees of Ontario, [2002] O.G.S.B.A. No. 23 (QL) (Knopf), Re Ontario (Ministry of Health and Long-Term Care) and O.P.S.E.U., [2002] O.G.S.B.A. No. 12 (QL) (Fisher), British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd. (1995), 125D.L.R.(4th)443(S.C.C.), Re Consumers Glass Ltd. and Teamsters, Loc. 213 (Contracting Out), [1997] B.C.C.A.A.A. No. 376 (QL), 48 C.L.A.S. 250 (Chertkow), Re Fanshawe College and O.P.S.E.U. (1991), 19L.A.C.(4th)162(Brent), and Re Ontario (Ministry of Health and Long-Term Care) and O.P.S.E.U. (2001), 110L.A.C.(4th)80(R.M.Brown). The submissions of counsel for the Friendship Centres, counsel for the Employer and Mr. Pawis reflected similar themes. On behalf of the three Friendship Centres, Ms. O'Donnell argued that natural justice and fairness required that the Service Providers be granted intervener status in the circumstances of this case. In her submission, the Program Agreements between the Ministry and the Service Providers and the unique interests arising from the nature of the services provided by NILOs illustrate that the Service Providers are directly and necessarily affected by this proceeding. Ms. O'Donnell conceded that the circumstances here did not fall within any of the three classes of cases referred to in Re Avenor Inc., supra. However, she submitted that there are a number of unique and exceptional features in this case. Even though the Service Providers are paid a fee to provide services to native inmates, Ms. O'Donnell emphasized that financial gain is not the objective of the Program. Rather than a commercial endeavour, a common feature of the decisions on standing, she submitted that the wide range of services the NILOs provide are so unique that they cannot be defined in terms of a typical job. In providing an
holistic approach to cultural matters and establishing a link between native inmates and their native communities, counsel indicated that the NILOs work on a 24 hours 7 day a week basis, both within and outside the institutions, and that their work continues after an inmate is released. Ms. O'Donnell also noted that, given the nature of the services they provide, the Service Providers would not have an effective remedy against the Ministry, in damages or otherwise, should the Union succeed and the Program Agreements be cancelled. Counsel maintained that these elements of the Program establish a sufficient interest entitling the Service Providers to intervener status. Mr. Pawis described his role in providing healing and culturally relevant programs to native inmates and the importance of access to the native community for the success of the programs. He indicated that over the years he has established a relationship of trust with the community and native inmates which could be seriously affected if the Program was to be altered as a result of this proceeding. Mr. Pawis submitted that his voice should be heard, given the significance of the services he provides and the impact this proceeding could have on him and the native community. Counsel for the Employer noted as well that the Program Agreements are not the typical kind of commercial agreements dealt with in the decisions on standing. Counsel submitted that the long-standing nature of the relationship between the Ministry and the Service Providers is a particularly relevant factor when considering the question of standing in this proceeding. Counsel for the Union made lengthier submissions during which he referred to many of the decisions referred to previously. In essence, the Union took the position that the Service Providers do not have a direct interest in this proceeding. Counsel argued that their interest arises only from the Program Agreements, thereby making that interest indirect and not sufficient to warrant intervener status. The inquiry before me concerns a dispute between the Employer and the Union under their Collective Agreement. The Collective Agreement provides the central framework by which these parties govern their relationship. The grievance procedure provides a mechanism for addressing disputes over whether there has been a
violation of the Collective Agreement. In this instance, the Union claims that the Collective Agreement is being contravened because the NILOs are performing bargaining unit work. It does not claim that the NILOs are employed by the Ministry. In essence, the Union is seeking a remedy, which will ensure that the work now performed by the NILOs, to the extent that it is bargaining unit work, is performed by employees in the bargaining unit. At the centre of this particular dispute therefore is whether the NILOs are performing bargaining unit work contrary to the Collective Agreement and what remedy is appropriate if such a contravention is established. There is no doubt that the Service Providers have an interest in this dispute between the Union and the Employer. They have entered into a Program Agreement with the Employer for the provision of important and necessary services to native inmates. The submissions on behalf of the Service Providers focused on the nature of the Program and the impact a successful claim by the Union would have on the Program. Mr. Pawis' submissions illustrate the value of the Program and his role as a NILO, as well as his concerns about changing the Program. There is no doubt that there would be significant consequences for the Program and the NILOs should the Union succeed on the merits of its claim. Although the risk of such an impact exists, the essential question for determination is whether the Service Providers have an interest sufficient to entitle them to intervene as a party in this proceeding. It is my conclusion that the Service Providers do not have an interest of the type that entitles them to intervener status. They do not have an interest that relates to the central issue in this arbitration, namely whether the NILOs are performing bargaining unit work. Only the Employer and the Union have a direct interest in that issue. The interest of the Service Providers has no connection with labour or employment law. In this regard, I note again that the Union is not alleging that the NILOs are employees of the Ministry. The Board's decision in this arbitration will only affect the Service Providers indirectly. Although they provide unique services that may be unlike a typical job, the Service Providers are in the same position as any person that has a contractual relationship with one of the parties. The fact that their interest in the
outcome of this arbitration is not financially based or that the program has been in place for many years does not transform an indirect interest into a direct one. The fact that there will be significant consequences for the Service Providers and the NILOs should the Union succeed, by itself, does not make their interest a direct one. The Service Providers have recourse in the Courts if the Ministry contravenes any of their rights under the Program Agreements. Accordingly, for the foregoing reasons, the request of the Service Providers to intervene as third parties in this proceeding is denied.