Ontario Nurses' Association v. Brantwood Manor Nursing Homes Limited, 1984 CanLII 928

Ontario Nurses' Association v. Brantwood Manor Nursing Homes Limited

[1984] OLRB Rep. March 408

2285-83-U Ontario Nurses' Association, Complainant, v. Brantwood Manor Nursing Homes Limited, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. D. Bell and L. Collins.

APPEARANCES: Susan Stewart, Judith McCorrnack and Liz Woods for the complainant; Stephen Bernofsky, Delaine Foster and Marion Hallatt for the respondent.

DECISION OF THE BOARD; March 14, 1984

I

1. This is a complaint under section 89 of the Labour Relations Act alleging a breach of the written settlement of an earlier unfair labour practice complaint. Section 89 reads, in part, as follows:

89-(l) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3) The labour relations officer shall report the results of his inquiry and endeavours to the Board.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

(7) Where the matter complained of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

2. The first complaint (Board File No. 1521-83-U) was filed in October 1983 and alleges that the respondent employer has engaged in a variety of unfair labour practices including the unlawful discharge of three of its employees. The particulars of these various allegations need not be repeated here. It suffices to say that, in accordance with its usual practice and pursuant to section 89(2) of the Act, the Board appointed an Officer to meet with the parties and endeavour to effect a settlement of the matters complained of. However, these settlement efforts were unsuccessful, and the proceeding came on before the Board for hearing on November 9, 1983. One day was insufficient to complete the evidence so the hearing was scheduled for continuation.

3. Between the first day of hearing and the second scheduled day there were further settlement discussions which resulted in the preparation and execution of the following settlement document:

File No. 1521-83-U

BETWEEN:

Ontario Nurses' Association,

Complainant,

• and -

Brantwood Manor Nursing Homes Limited,

Respondent.

AGREEMENT OF THE PARTIES

The parties agree that the above-named complaint shall be resolved without prejudice in the following manner:

1. ONA acknowledges the right of the manor to create three full-time registered nursing positions.

2. Mrs. T. MacDonald has been hired into the day shift as a nursing unit administrator, which the Manor considers to be outside the bargaining unit. The Manor has re-posted the remaining two full-time positions and offered them to incumbent R.N.'s on the basis of the criteria set forth in Article 10:07 of the collective agreement and considers these two positions to be within the bargaining unit. The Manor will consider applications from incumbent staff before hiring from the outside. If candidates do not apply from within for the other positions, the Manor can hire from the outside.

3. Remaining part-time R.N. 's shall be offered the opportunity to perform relief work which shall be distributed equally among those R.N.'s with a minimum guarantee of at least four (4) tours per pay period each.

4. Work presently performed by R.N.'s in the bargaining unit shall not be performed by anyone outside the bargaining unit unless and until all R.N. 's in the bargaining unit have been offered the work.

5. All scheduling will be discussed at the Nurse Management meetings.

6. The Manor agrees to reinstate K. Nichols, D. Anderson and T. Van Schyndel to full seniority, service for all purposes as if they had not been terminated and agrees to pay for all time lost on the following basis:

K. Nichols - 7-1/2 dys

T. Van Schyndel — 17 dys

D. Anderson - 15-1/2 dys

The above amounts shall be paid to the nurses on the pay day next following the date of this agreement.

7. The Complainant hereby requests leave of the Board to withdraw the complaint.

Dated at Toronto, this 6th day of December, 1983.

It is this written settlement which forms the basis of the present complaint since the employer has not paid the sums mentioned in paragraph 6. It might be noted that the individuals executing the document on behalf of the employer are both solicitors and that, apart from that, Mr. Hallatt is an owner of the respondent. There is no dispute that they had both the ostensible and actual authority to settle the complaint. In accordance with paragraph 7 of the settlement, the Board issued a decision granting leave to withdraw the complaint, thereby terminating the proceeding and making further hearing days unnecessary.

4. It is conceded that the respondent has failed to pay any of the monies purportedly owing pursuant to paragraph 6 of the settlement. The employees were reinstated to their former positions and worked for a time, but the amounts payable under paragraph 6 (in total, a little off $4,400) were not paid to the aggrieved employees on the pay day next following the execution of the settlement, or at any time thereafter. That is what triggered the second complaint based upon section 89(7) of the Act. The respondent's reasons for its position were elaborated before the Board at a hearing held on February 22, 1984. The purpose of the hearing was to determine whether the Board should require compliance with paragraph 6 of the settlement.

5. At the hearing on February 22, 1984, the Board required each of the parties to particularize its position and stipulate those purported facts upon which it relied. The chronology of events was not really disputed, although each party asserted that the Board should appreciate "the whole picture". To this end, both parties indicated an intention to call a number of witnesses whose evidence would touch not only upon the settlement process itself, but also the unfair labour practice complaint and events in the weeks following the execution of the settlement document. It was obvious that such enquiry, once begun, could not be completed on February 22, 1984. The respondent indicated that one witness it wished to call was not available that day, and given the potentially broad scope for cross-examination, the Board even had some doubt whether the evidence could be completed with one further hearing day. Moreover, it was much less obvious that any viva voce evidence was necessary or that the facts sought to be advanced or proved would really affect the ultimate result — hence the Board's effort to get the parties to stipulate and particularize their positions. There seemed little point in embarking upon a potentially protracted enquiry which could not affect the ultimate result.

6. The respondent's position is that the whole settlement is void because the union and/or certain of the employees it represents have acted "in bad faith". Alternatively, the respondent argues that the parties were not adidem when the document was executed, certain of its terms are ambiguous and that because the provisions are not severable, the entire settlement is void. The respondent submits that it does not have to pay anything to the employees who were terminated, nor otherwise comply with the terms of the settlement. The respondent takes the position that the unfair labour practice complaint is, in a sense, "revived", so that the hearing begun on November 9, 1983 should now proceed to its conclusion as if there had been no settlement at all.

7. It is necessary to examine the employer's position in a little more detail, taking into account both those facts which are agreed or conceded, and those which the employer alleges to be so.

8. In the first place, it is clear that the three employees did in fact return to work, either pursuant to the settlement itself or the discussions preceding its execution. But each only remained in the respondent's employ for a few weeks. Shortly after their return to work each employee gave two weeks' notice of her intention to resign and subsequently did so. The respondent's position is that these employees must have formed the intention to resign prior to returning to work and, in any event, their resignation so soon after reinstatement was both unexpected and not in keeping with the spirit or intention of the settlement. The respondent concedes that there was no undertaking or discussion about these employees continuing in employment for any particular period, nor is there anything to that effect in the settlement. That is why it came as such a surprise, which, the respondent submits, forced it to "scramble" during the holiday season to find replacements. The respondent also seeks to lead evidence to show that its intention in entering into the settlement was to achieve some stability at the Home and that it was surprised when the union failed to withdraw an outstanding grievance respecting the status (for a time) of Mrs. T. MacDonald mentioned in paragraph 2 of the settlement. However, as will be seen, the settlement itself does not deal with or require the withdrawal of outstanding grievances under the parties' collective agreement and it is conceded by counsel for the respondent before this Board that there was no express undertaking in this regard. Nevertheless, the respondent seeks to lead evidence to show that, in context, that is what the employer anticipated and expected because the respondent viewed the purpose of the settlement as resolving all outstanding issues between the parties in all forums and "on all fronts". The respondent advised the Board that that would be the testimony of Mr. Marini and, the respondent's position is that when this was not the case it became apparent that the parties were not ad idem.

9. In the alternative, the respondent takes the position that paragraphs 2 and 4 of the settlement are ambiguous. For example, the respondent asserts that paragraph 4 is ambiguous because it does not expressly deal with the distribution of work which might (but need not necessarily) be offered as overtime opportunities for the established nursing complement.

10. The union's position is much narrower. The union asserts that, in this proceeding, it is seeking only the enforcement of paragraph 4 of the settlement. No other clause is in issue, nor, at this point at least, does the union seek compliance with any of the other terms of the settlement. The union is simply trying to collect the money which, it says, should have been paid to the aggrieved employees shortly after their return to work. The union argues that the employees' intentions or conduct subsequent to their reinstatement was not dealt with in the settlement and is irrelevant; although, the union stands ready to lead evidence on that question should the Board decide otherwise, as well as on the context of the settlement discussions which the respondent says gave rise to the expectations or implicit understandings to which it referred.

11. The union also notes, and it is not now disputed, that Ms. T. MacDonald mentioned in paragraph 2 of the settlement now occupies the position of director of nursing which the union concedes now is a managerial position beyond the scope of the bargaining unit. To that extent (as the respondent concedes), the dispute concerning her status — the subject matter of the grievance — is now largely academic. The only real issue is whether, for a time, in accordance with the terms of the applicable collective agreement, certain union dues or assessments (amounting to about $150.00 in total) should have been deducted and remitted to the union. Counsel for the union points out that again, regardless of what the employer may have hoped or anticipated, there is nothing in the settlement respecting the withdrawal of outstanding grievances or the settlement of any other matters in dispute between the parties. The extent of the settlement is defined by its express terms; moreover, the union emphasizes that, in this proceeding it is only paragraph 6 which is at issue. There is no ambiguity in paragraph 6. It is irrelevant that paragraph 4 may be ambiguous or that there may be some question as to how it should be applied in particular circumstances. Paragraph 4 is not the focus of this complaint; it is the compensation claim under paragraph 6. The employer does not dispute "the arithmetic" — that is, the sums which it would have to pay if the obligation in paragraph 6 is enforceable, nor is there any dispute that aggrieved employees were not paid such sums either on their first pay day following December 6, 1983, or at any time thereafter. The union seeks a declaration that the employer has failed to comply with paragraph 6 of the settlement and a direction that the sums contemplated be payable forthwith.

II

12. The purpose of section 89 of the Labour Relations Act is to secure a prompt, final and binding resolution of unfair labour practice complaints, and the Act expressly recognizes and endorses the settlement of such complaints without a formal Board hearing or a formal Board decision. Section 89 is intended to facilitate settlements which, once reduced to writing, are supposed to be binding. Non-compliance with a written settlement is treated as a breach of the Act itself and triggers the same remedial jurisdiction. Against that background, the Board would be loath to adopt any approach which might limit or impair the settlement process, or discourage its use. In principle, a written settlement should not lightly be disregarded — particularly where, as here, both parties were acting with legal advice and the two signatories for the respondent were themselves solicitors.

13. Every year trade unions and employers file thousands of applications or complaints before the Board. Most of them are settled. Sometimes the settlement favours the union. Sometimes it favours the employer. Usually it represents a compromise in which neither side achieves as much or risks as much as it would by proceeding to a hearing. Parties come to a settlement in order to avoid the costs and uncertainties of litigation and on the basis of such agreements~ they undertake obligations and the Board issues decisions which are intended to be binding. In our view, it would make nonsense of the settlement process and gravely prejudice the orderly resolution of Board proceedings if, having reduced its agreement to writing, a party could afterwards repudiate it because it did not meet unexpressed expectations or supposedly implicit understandings which do not appear on the face of the document itself. What is the purpose of the statutory requirement for writing if a party can afterwards claim "X was unstated but implicit, and if you do not agree with me we were not ad idem so the whole settlement is void"? If that submission were accepted few settlements (or contracts for that matter) would ever stand. Nor do we accept that the party can repudiate unambiguous obligations or avoid a settlement in its entirety because some provisions of that settlement may turn out to be ambiguous in their application to particular cases. If the parties have created obligations which are difficult to interpret, there may be difficulty obtaining enforcement pursuant to section 89(7), but this does not mean that the entire settlement is void. There may well be situations where the Board would reach that conclusion, but this is certainly not one of them.

14. The settlement in this case does not contain any preamble reciting the parties' expectations, whatever they may have been. There is no requirement in paragraph 2 to settle any other proceedings, nor, the employer concedes, any express undertaking in this regard —whatever the employer may have expected or regarded as "implicit". There is no requirement that the three individuals should continue to work for the employer for any prescribed time, nor any waiver of their right to quit should they decide to do so subsequent to their reinstatement. And even if they had resolved to quit prior to the execution of the settlement or after receiving the money to which they were entitled by its terms, we do not think that this vitiates the settlement as a whole or the obligation to pay. The employees' position was that they had been unlawfully discharged. The unfair labour practice complaint was designed to secure reinstatement and compensation. The settlement provided for reinstatement and compensation (albeit, in the union's submission, a compromised sum,) and the settlement provides no more than that, nor contains any additional conditions. The employees went back to work. They have not been compensated. When the settlement was executed the employees may already have formed the intention to quit at a time convenient for them, or they may have come to that conclusion after their return to work. We do not think it matters. Even assuming the employer's best case — that is, that through evidence it can establish its subjective intention and belief that the settlement would resolve all outstanding matters, and that it did not anticipate that the employees would quit — we are of the view that this would not vitiate a settlement made binding and given statutory force by section 89(7) of the Act. No doubt things did not work out as the employer thought they would, and, no doubt, in hindsight the employer regrets the terms to which it agreed, but that is no basis for repudiating the settlement or reopening the earlier litigation.

15. For the foregoing reasons, the Board is satisfied that it is unnecessary to hear evidence from either the employer or the union since nothing which either party seeks to prove by that evidence could affect our conclusion as to the disposition of this matter. It would only exacerbate an already difficult bargaining relationship and generate unnecessary legal expense. It is unnecessary in this case to entertain such extrinsic evidence, or go behind the document which the parties have executed.

16. The Board finds that the respondent employer has failed to comply with paragraph 6 of the settlement dated December 6, 1983, and directs that it forthwith pay to Ms. K. Nichols the sum of $852.98; to Ms. T. Van Schyndel the sum of $1,894.48; and to Ms. D. Anderson the sum of $1,659.74. During argument counsel for the union observed that these sums, although accurately reflecting the "arithmetic" of the formula agreed upon in the settlement, did not include any component in respect of interest on the amounts which were admittedly still unpaid as at the time of the hearing. But the settlement itself does not mention interest either and, whether or not the Board has jurisdiction to award interest pursuant to its broad remedial authority under section 89, we are of the view that this is not a case for interest. Finally, we express no final opinion as to the meaning or alleged ambiguity of paragraph 4 of the settlement which is not directly in issue before us.