GSB# 2016-1736; 2016-2573; 2017-0633

UNION# 2016-0411-0026; 2017-0411-0002; 2017-0411-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Elder)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

June 22, 2018

DECISION

1I have three grievances before me filed on behalf of Ms. H. Elder, a Registered Nurse (“RN”) at the Ottawa-Carleton Detention Centre (“OCDC”). One of the grievances challenges a 3-day suspension that was issued to Ms. Elder. Prior to the last day of hearing, the Employer advised that it would rescind the 3-day suspension, compensate her for the loss of three days pay and remove any reference to the suspension from her disciplinary record. The Employer now takes the position that the dispute that gave rise to the 3-day suspension grievance is moot and that I should exercise my discretion in favour of not hearing the suspension grievance. The Union claims that live issues remain for determination in relation to the suspension grievance and that, even if the grievance is moot, I should exercise my discretion to hear the matters that gave rise to the grievance. This decision addresses the Employer’s motion to dismiss the suspension grievance because of mootness. The decision is being released in advance of the continuation dates that were scheduled for these grievances.

2Counsel found it unnecessary to call evidence to provide the facts for their submissions on the Employer’s motion. Instead, each counsel referred to a similar factual context for the purpose of addressing the motion. The factual context giving rise to Ms. Elder’s three grievances, with an emphasis on the circumstances of the suspension grievance, can be briefly described as follows.

3Ms. Elder has been employed as a fixed term RN at the OCDC since January of 2015. She became an RN in February 2003, and before then she had worked as a correctional officer.

4In 2016, the Employer experienced a number of vacancies in the nursing department which created scheduling issues, particularly for the night shift. Ms. Elder became concerned about the impact of the reduction in nursing staff. Based on her belief that she had an obligation to advocate for her clients, Ms. Elder raised her concerns with various levels of management about excess work, safety issues and a reduction in nursing standards. She was advised that management was looking into the problem, but she eventually came to the belief that management was not responding adequately to the situation. This led her to file a grievance dated June 4, 2016, in which she alleged that the Employer contravened Article 2 and COR 15 of the Collective Agreement. Under settlement desired, Ms. Elder requested a workload evaluation and a pharmacology review by an outside agency. The Employer denied this grievance.

5During the week prior to December 29, 2016, management reminded Ms. Elder of the procedures set out in the Delivery of Medications Policy (“the Policy”) contained in the Health Care Services Policy and Procedures Manual which applies to all correctional institutions in Ontario. The Policy provides that it is preferable that a Nurse who prepares a dose of medication deliver it to the inmate. It also provides that it may be necessary for a Sergeant/designate to deliver prepared medications to inmates, although it is noted that this practice shall be kept to a minimum. The section of the Policy under Delivery of Medication in the Absence of Health Care Staff provides as follows:

The following procedures apply to circumstances when medications are delivered by the Sergeant/designate in the absence of health care staff or when health care staff are unable to perform regular medication rounds (e.g. after hours, medical emergency, security concerns, institutional lock-down, etc.).

Medications will be prepared by the Nurse or Pharmacist/Pharmacy Technician, and labelled with the inmates name, date, name of the medication, and instructions for delivery. A minimal selection of over the counter medications that have been identified by the Health Care Manager/Coordinator/Senior Nurse, Pharmacist and/or Primary Care Physician/Nurse Practitioner may also be provided.

The Sergeant/designate shall:

. secure the medications in a location to which only he/she has access

. record the receipt of the medications in the designated logbook or record

. deliver medication to the inmate for whom it was intended

. record all deliveries and refusals in the appropriate logbook or record

. give over the counter medication to an inmate upon request. The

sergeant/designate will review the contradictions listed on the medication

bottle or the list provided by health care with the inmate prior to giving the

medication.

6The events that led to Ms. Elder filing her second grievance and the basis of the Employer’s decision to suspend her for three days occurred on December 29, 2016. On that day there was no night nurse scheduled and an inmate had been prescribed a narcotic to be administered at 4:00 a.m. The Operational Manager (“OM”) in charge of the inmate asked Ms. Elder to prepare the medication for the inmate. The OM expected that Ms. Elder would prepare the medication by putting the narcotic in an envelope for delivery by the OM at a later time to the inmate to self-administer. Ms. Elder refused to prepare the medication and gave several reasons for her refusal. She advised the OM that the inmate should be taken to the hospital if he required medication. Another nurse prepared the medication for delivery to the inmate. The OM informed management of Ms. Elder’s refusal to prepare the medication and the individuals involved in the incident were instructed to file Occurrence Reports.

7On January 4, 2017, Ms. Elder filed her second grievance. In it she alleged that the Employer contravened the Collective Agreement by permitting non-bargaining unit members to deliver medication to inmates. Ms. Elder communicated her concerns to management about the practice of permitting non-registered staff to deliver medications and encouraged management to contact Health Canada about the practice. The Employer also denied her second grievance.

8After filing her second grievance, Ms. Elder was invited to attend an allegation meeting on March 23, 2017, to discuss two allegations relating to her negligent conduct in refusing to prepare medication for delivery to an inmate by an OM on December 29, 2016. The Employer maintained that her actions in this regard were in violation of the Policy and the Ontario Correctional Services Code of Conduct and Professionalism. As part of her response to the allegations, Ms. Elder indicated that the practice at issue in the Policy was in violation of the College of Nurses (“CON”) standards and the “Narcotic Act”. She also indicated that an OM was outside the “circle of care” and that others should not interfere with healthcare decisions between a medical professional and the patient. The Employer advised her at the meeting that the CON was aware of the Employer’s Nursing policies.

9The Employer determined that the allegations made against Ms. Elder had been substantiated and issued her the 3-day suspension by letter dated May 10, 2017. On that same day, she filed her grievance challenging the suspension. The statement of grievance reads as follows: “I grieve that the employer is inclusive but not exclusively in violation of the collective agreement with Article 2, Article 3, Article 21.1, as well as any other article, legislation that may apply by imposing excessive discipline in my disciplinary hearing of May 10, 2017.” Under settlement desired, Ms. Elder simply requested that she be made whole.

10In 2017, the Employer held competitions in the Nursing Department and successfully filled a number of vacancies in order to address the scheduling issues. The Nursing Department went from 14.6 FTEs to 25.6 FTEs. Typically, two Nurses are now scheduled on the night shift. The Employer claims that the result of these changes means that it is very unlikely that the circumstances that existed on December 29, 2016, would be repeated in the future.

11Union counsel advised at an earlier stage of this proceeding that the Union’s position on the suspension grievance was as follows. The discipline issued to Ms. Elder was unjustified because the direction from the OM was in violation of her professional obligations as an RN and in violation of related statutes, and the discipline amounted to a reprisal against Ms. Elder for her actions that included the filing of her grievances. The Employer’s actions caused embarrassment and distress for Ms. Elder and damaged her reputation as a health care professional. The Union intended to seek the following remedies on behalf of Ms. Elder:

1. A declaration that the Employer violated the Collective Agreement and the setting aside of the discipline.

2. A finding that the discipline was a reprisal for Ms. Elder’s actions and the filing of her grievances.

3. An order striking down the requirement in the Policy for an RN to prepare medication for non-registered staff and a declaration that Ms Elder was entitled to refuse to prepare the narcotic when requested to do so by the OM on December 29, 2016.

4. An order for damages for discriminating against Ms. Elder and damages for

causing her distress, embarrassment and damage to her reputation.

12As noted previously, the Employer takes the position that the grievance is now moot because it rescinded the 3-day suspension, reimbursed Ms. Elder three days pay and removed the suspension from her disciplinary record. The Employer referred to the remedy requested in the grievance and argued that it has provided Ms. Elder with the remedy that she originally sought. Given its understanding of the arguments the Union intended to make, Employer counsel submitted that a review of Ms. Elder’s decision to not prepare the medication for a specific inmate based on CON standards or specific legislation will not be a useful exercise since any future refusals to prepare medication must be assessed on the specific circumstances that gave rise to those refusals. Counsel also noted that it is very probable that Ms. Elder will never be put in the same position in the future since that night shift is now staffed with Nurses. The essence of the Employer’s position is that there is nothing left to address and that there is no labour relations justification for using the GSB’s resources to hear the suspension grievance.

13In contrast, the Union argued that there are a number of issues that remain to be determined and pointed out what the Employer has not done with respect to Ms. Elder’s grievance. Union counsel noted that the Employer has not conceded that the discipline it had imposed on Ms. Elder constituted a breach of the Collective Agreement; it did not acknowledge that it had discriminated against her and that the discipline amounted to a reprisal for her engaging in union activities; it has not agreed that Ms. Elder was entitled to refuse the request of the OM and to remove from the Policy the section dealing with the delivery of medication in the absence of health care staff; and, finally, the Employer has not agreed to provide Ms. Elder with the damages that she is seeking. Union counsel argued that the rescinding of the suspension has left a number of unresolved matters that the Union had intended to and is entitled to pursue. In particular, Union counsel maintained that the issues of whether the discipline amounted to a reprisal, whether Ms. Elder’s decision to refuse to prepare the medication, the validity of the section of Policy that deals with the delivery of medication in the absence of health care staff and whether Ms. Elder is entitled to damages continue to be live issues even though the Employer has rescinded the suspension.

14Counsel for the Employer relied on the following decisions: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342; Re Thames Emergency Medical Services Inc. and O.P.S.E.U., Local 147 (2006), L.A.C. (4th) 431 (Knopf); Mike Mousley and Ministry of Community Safety and Correctional Services, December 15, 2010 P-2010-0433 (O’Neil); OLBEU (Berry) and Liquor Control Board of Ontario (2004), GSB Nos. 2001-0453 et al. (Johnson); OPSEU (Lobraico) and Ministry of Health (1993), GSB No. 2934/91 (Gorsky); OPSEU (Union) and Ministry of Community Safety and Correctional Services/Ministry of Children and Youth Services (2010), GSB NO. 2009-2981 (Abramsky); and, Re Toronto Police Services Board and Toronto Police Association (2011), 202 L.A.C. (4th) 113 (Knopf). In addition to Borowski, supra, and OPSEU (Union) and Ministry of Community Safety and Correctional Services/Ministry of Children and Youth Services (Abramsky), supra, Union counsel referred me to the following decisions: OPSEU (Union) and Ontario Reality Corporation/Management Board Secretariat (1998), GSB No. 2024/97 (Abramsky); OPSEU (Union) and Ministry of Correctional Services (2002), GSB Nos. 0973/01 et al. (Abramsky); OPSEU (Ferraro et al.) and Ministry of Community and Social Services (2007), GSB Nos. 2000-1200 et al. (Mikus); Re Mckay and the Crown in Right of Ontario (Ministry of Northern Affairs) (1991), 1981 CanLII 4387 (ON LA), 28 L.A.C. (2d) 441 (Rayner); and, OPSEU (Dubuc) and Ministry of Community Safety and Correctional Services (2011), GSB No. 2010-0490 (Abramsky).

15In Borowski v. Canada (Attorney General), supra, Justice Sopinka described the doctrine of mootness as follows at paragraphs 15 and 16:

15. The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.

16. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should its discretion to ear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

16The other cases relied on by counsel illustrate how the doctrine of mootness has been applied in different contexts. Two of the decisions are worth noting. In the McKay decision, supra, the Ministry directed the grievor to choose between the presidency of a Riding Association and his employment. By the time of the arbitration hearing, the grievor had voluntarily left the Ministry and the Ministry argued, in effect, that “the whole matter was rendered moot.” The Vice-Chair found that the Union was entitled to pursue the issue of the propriety of the order given to the grievor even though the grievor was no longer employed by the Ministry. In OPSEU (Dubuc), supra, the Employer rescinded a letter of reprimand and substituted it with a letter of counsel. It then took the position that the matter had become moot. In addition to challenging the discipline, the Union sought damages for loss of reputation and mental distress. The Vice-Chair concluded that the grievance as it related to the discipline was moot, but was not moot as it related to the claim for damages for loss of reputation and mental distress.

17The first issue to address when dealing with a claim that a grievance is moot

is whether a live controversy or a concrete dispute continues to exist. Even if a live

controversy no longer exists, the arbitrator may still exercise his or her discretion to hear the grievance if it is appropriate to do so. In the instant case, I find it is unnecessary to get to the second step because of my conclusion that there continues to be live controversies between the parties after the Employer rescinded the 3-day suspension it had issued to Ms. Elder.

18By rescinding the 3-day suspension, the Employer has made moot the issues of whether it had just cause to discipline Ms. Elder for refusing to prepare medication for delivery by the OM and any issue relating to the appropriateness of the penalty. However, given the way the Union has framed Ms. Elder’s grievance challenging the suspension, there remain live and concrete disputes between the parties even though the discipline has been rescinded. I appreciate that the way the Union framed the grievance during this proceeding is different from the settlement requested in Ms. Elder’s grievance. However, the remedial issues the Union wants to pursue with the grievance are not unusual and in my view do not represent an improper expansion of the grievance. The issues of whether Ms. Elder was entitled to refuse an alleged improper request to prepare medication for delivery by the OM, whether the discipline imposed on Ms. Elder was discriminatory and constitutes a reprisal and whether Ms. Elder is entitled to damages are live and concrete issues that arise from the circumstances of her grievance. The rescinding of the 3-day suspension has not resulted in a situation where there are merely hypothetical or abstract questions to be answered.

19For these reasons, the Employer’s motion to have the 3-day suspension grievance dismissed because of mootness is hereby dismissed. The hearing with respect to the three grievances before me will continue on the dates that have been scheduled.