Windsor Western Hospital (Riverview Unit) v. Ontario Nurses' Association, 1985 CanLII 991

Windsor Western Hospital (Riverview Unit) v. Ontario Nurses' Association

[1985] OLRB Rep. June 989

3080-84-M Windsor Western Hospital (Riverview Unit), Employer, v. Ontario Nurses' Association, Trade Union, v. Anisia Mordowanec, Intervener

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members R. J. Gallivan and P. Grasso.

APPEARANCES: Leonard P. Kavanaugh, Q. C. and A. J. Lopes for the employer; Donald F. 0. Hersey, Q. C. and Dan Anderson for the trade union; Mary Cornish for the intervener.

DECISION OF THE BOARD; June 13, 1985

I

1. This is a reference to the Board under section 107 of the Labour Relations Act. The Minister of Labour has referred to the Board a question that, in his opinion, relates to his authority to make an appointment under section 44(4) of the Act, so that an arbitration board may be established to consider whether Windsor Western Hospital had "just cause" to discharge the intervener, Anisia Mordowanec. The provisions of the Labour Relations Act potentially relevant to this matter are as follows:

107.-(l) Where a request is made under section 16, subsection 44(4) or subsection 45(l), the Minister may refer to the Board any question that arises that in his opinion relates to his authority to make an appointment under any such provision that is mentioned in the reference, and the Board shall report to the Minister its decision on the question.

(2) Where a question referred under subsection (I) involves an issue as to whether one trade union is the successor of another trade union or whether a business has been sold by one employer to another or where such question involves an issue under subsection 63(1 1), the Board has the same powers and authority as it has under section 62 or 63, as the case may be, as if an application had been made thereunder, and the Board may issue such directions as to the conduct of the proceedings as it considers advisable.

44.-(4) Notwithstanding subsection (3), if there is a failure to appoint an arbitrator or to constitute a board of arbitration under a collective agreement, the Minister, upon the request of either party, may appoint the arbitrator or make such appointments as are necessary to constitute the board of arbitration, as the case may be, and any person so appointed by the Minister shall be deemed to have been appointed in accordance with the collective agreement.

89.-(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.

106-(I) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

(3) Where the Board has authorized the chairman or a vice-chairman to make an inquiry under clause 103(2)(h), his findings and conclusions on facts are final and conclusive for all purposes, but nevertheless he may, if he considers it advisable to do so, reconsider his findings and conclusions on facts and vary or revoke any such finding or conclusion.

108. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

In addition, we might note the terms of section 25 of the Statutory Powers of Procedure Act:

25. -(1) Unless it is expressly provided to the contrary in the Act under which the proceedings arise, an appeal from a decision of a tribunal to a court or other appellate tribunal operates as a stay in the matter except where the tribunal or the court or other body to which the appeal is taken otherwise orders.

(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2(1) of that Act is not an appeal within the meaning of subsection (1).

2. This is one of a number of proceedings, past and present, arising from Ms. Mordowanec's termination in June, 1982. In order to appreciate the context in which the instant case arises, it may be useful to sketch in some of the background and the results of certain earlier proceedings before this Board. For ease of reference, Windsor Western Hospital will be referred to as "the Hospital", and the Ontario Nurses' Association will be referred to as "ONA".

II

3. The complainant is a registered nurse. She has worked for the Hospital for some 27 years. On May 31, 1982, she was suspended pending investigation of alleged improper treatment of a patient.

4. At the time of the alleged wrongdoing, the complainant's charge nurse was Ms. Mary DeByl-Wowchuk. Ms. DeByl-Wowchuk was also the local union president. In her capacity as charge nurse, she filed critical reports questioning the complainant's competence. In her capacity as union president, she attended a "disciplinary interview" leading to the complainant's termination. The quality of representation provided at the disciplinary meeting was the basis for a complaint before this Board alleging that ONA had breached its duty of fair representation (Board File 2287-83-U).

5. The disciplinary meeting took place on June 9, 1982. The complainant was required to attend. Under the applicable collective agreement the complainant was clearly entitled to union representation. Ms. DeByl-Wowchuk was the only union official present at the meeting, however, it would be somewhat misleading to describe her as the complainant's "union representative". Ms. DeByl-Wowchuk took no active part in the meeting. She did not attempt to advise or represent the complainant. Ms. DeByl-Wowchuk only took notes.

6. At the meeting, the Hospital misled the complainant into believing that if she signed a resignation letter there would be no negative report to the College of Nurses. That assertion was false. The Hospital did report her to the College of Nurses, which conducted an enquiry into the charges of professional misconduct and incompetence. Ms. DeByl-Wowchuk gave evidence against the complainant. The charges were dismissed.

7. At the disciplinary meeting on June 9, 1982, the complainant was upset. She requested an adjournment so that she could talk to her husband or a lawyer. She requested a delay until that afternoon when Ms. Jan Davidson, a union employee relations officer, would be available to represent her. The complainant had already spoken to Ms. Davidson and arranged to meet her later that day. The complainant did not want to be represented by Ms. DeByl-Wowchuk. Ms. DeByl-Wowchuk was not impartial. The Hospital insisted on proceeding immediately.

8. Ms. DeByl-Wowchuk was in a conflict of interest position. She could not, and did not, assist or represent the complainant. Ms. Davidson would have been able to supply such union representation, but the Hospital was not prepared to await her arrival. It is difficult to resist the inference that the Hospital knew that if the complainant had Ms. Davidson's assistance, it would not be able to successfully mislead her and obtain a resignation letter; and, if it proceeded with a dismissal, it might have some difficulty establishing "just cause for the discharge of an employee with twenty-seven years' service. The Hospital was content to engineer, and exploit, a situation in which the complainant was without any actual union representation. In any event, that was the unanimous opinion of the panel of this Board which heard the earlier case. The Hospital chose to call no evidence, and thus tendered no explanation as to why it could not await the arrival, later that afternoon, of the union representative the complainant had so clearly requested.

9. The resignation letter was signed late in the morning of June 9, 1982. That afternoon, the complainant did have occasion to discuss the matter with Ms. Davidson. That evening, the complainant delivered to the Hospital a written revocation of her resignation. The Hospital refused to accept it. The Hospital's response was that even if the complainant had not resigned she was terminated for cause.

10. Thereafter, the union filed a grievance on the complainant's behalf. The grievance was ultimately taken to arbitration. Unfortunately for the complainant, the arbitration board ruled that because of the resignation letter, it had no jurisdiction to determine whether the Hospital had "just cause" to terminate the complainant's employment. She had "quit" voluntarily.

11. On January 5, 1984, the complainant filed an unfair labour practice complaint before this Board alleging that the union had breached its duty of fair representation. The complaint against ONA was based upon the failure of ONA to provide proper representation at the disciplinary meeting. This complaint was later amended to include an alleged breach of sections 64 and 66 of the Act by the employer Hospital. In addition, the union filed its own complaint against the employer Hospital alleging breaches of sections 64 and 66. The unfair labour practice complaints against the Hospital were both based upon the Hospital's purported interference with the right to union representation at the disciplinary meeting. These two related cases (i.e. against ONA and the Hospital) were eventually heard by the same panel of the Board. Both were successful.

12. For reasons more particularly set out in the Board decision of November 9, 1984, ([1984] OLRB Rep. Nov. 1643) the Board concluded that the union had breached its obligation under section 68 of the Act to properly represent the complainant at a time when the complainant's critical job interests were at stake. However, the Board also found that this absence of representation was brought about, in part, by the actions of the Hospital. The Board held that the Hospital had interfered with the complainant's statutory right to union representation which she had clearly requested and which, in practical terms, had been expressly denied. The Board cited with approval certain comments in J. Weingarten Inc. and Retail Clerks, Local 455, (1973) 485 F 2d 1135, 84 LRRM 2436 (U.S.C.A. - 5th Circuit, certiorari granted (1975) 430 U.S. 251 (Supreme Court), where the Supreme Court of the United States held that language similar to that found in the Labour Relations Act guaranteed an employee's right, upon request, to have union representation at a disciplinary meeting where his critical job interests are at stake. [See generally: C. J. Morris, Editor, The Developing Labour Law, B.N.A. Washington, 1983 at pp. 149-156. See also: the decision of the Quebec Labour Court in Chapdelaine v. Emballage Domtar Ltee, 84 CLLC 14,013 where that tribunal reached the same conclusion.] The Board did not explore the full ambit of this statutory right to representation (which has been well established in the United States), but observed that it was not for the employer to decide who would be the employee's representative at a disciplinary hearing, or to raise barriers to union representation which cannot be reasonably justified. No justification was advanced, because, as noted, the Hospital called no evidence.

13. The Board was then faced with the dilemma of how to fashion an appropriate remedy for these combined breaches of the Act. In a typical unfair labour practice discharge, the Board normally directs the reinstatement of the aggrieved employee with compensation for lost wages. However, the circumstances before the Board were somewhat novel. It was a little unusual for a termination to result from what might be described as a double illegality. Nor was it by any means clear how the liability should be apportioned between ONA and the Hospital, when it was arguable that, but for the Hospital's default, there might have been no termination, and any failure of representation on ONA's part would have been rectified. Finally, there was the matter of the complainant's own delay in launching these unfair labour practice complaints. Her discharge occurred in June of 1982, but it was not until January, 1984 that she sought to pursue any remedy before this Board against her employer or her bargaining agent. In a preliminary ruling, the Board decided that this delay would not be an absolute bar to a consideration of her complaint, but might well be a factor to be considered if the complaint were ultimately successful and the Board had to deal with the question of remedy or compensation.

14. Ultimately the Board decided that the crux of the problem was the termination letter, which it found, would not have been tendered, but for the illegal conduct of both the union and the Hospital. Without that termination letter, upon which the arbitration board ultimately relied, the employer would have had to rely upon its alternative position that the complainant had been discharged for cause. Whether or not that position could be sustained would depend upon the strength of the employer's case against her. While the opinion of the College of Nurses might suggest the likely result, it would not be binding upon an arbitration board which would have to make up its own mind based upon the evidence before it.

15. The collective agreement envisages arbitration as the appropriate mechanism for resolving such questions and, while the Board might well have decided to deal with all of these issues itself, it decided that the more appropriate route was to direct that the propriety of the complainant's discharge should be determined by a board of arbitration constituted pursuant to the terms of the collective agreement. The Board remained seized in the event that there was any difficulty in the implementation of this remedial order, and in the event that the complainant was successful at arbitration, there was some dispute with respect to the amount or allocation of compensation (again, bearing in mind the complainant's own delay in launching these proceedings). The relevant portion of the earlier decision reads as follows:

35. The Hospital extracted a letter of resignation from Mrs. Mordowanec by unlawful means (and in circumstances where the union breached its statutory duty of fair representation to her), successfully relied on that letter before an arbitration board that was unaware that it had been obtained by illegal means and now seeks to shield itself from any attempt by this Board to go behind the award of that board of arbitration. Just as the Board and the Court in Traugott refused to give any force or effect to a document obtained by illegal means, so also we are not prepared to give any force or effect to the letter of resignation obtained by illegal means or the arbitration award that relied on that letter in refusing to provide Mrs. Mordowanec with a hearing on the merits. Mrs. Mordowanec, a nurse with 27 years of service with the Hospital, is entitled to be put in the position she would have been in had it not been for the breach. We have the authority under section 89(4) of the Act to direct a hearing on the merits and in all the circumstances we hereby exercise our discretion to direct, notwithstanding the time limits in the collective agreement, that Mrs. Mordowanec's grievance with respect to her termination of employment be heard on the merits. The parties are directed to forthwith appoint their respective nominees to the arbitration board and to recommence the arbitration process established under the collective agreement for the purpose of determining if the Hospital had just cause to terminate the employment of Mrs. Mordowanec.

36. The Board will remain seized in the event of any difficulty with the implementation of our remedial order, and in addition, we will remain seized in the event that Mrs. Mordowanec is successful at arbitration and there is some dispute with respect to compensation.

[emphasis added]

16. But the Board decision was not the end of the matter. The Hospital refused to comply with the Board's order. The Hospital refused to appoint its nominee to the board of arbitration. The Hospital takes the position that the Board decision is wrong, and that it should not have to justify its decision to terminate the complainant's employment.

17. The Hospital does not deny that it has failed to comply with the Board's order. The Hospital says that it has applied for judicial review. However, the Hospital has not sought a "stay" of the Board's direction as it is entitled to do pursuant to section 4 of the Judicial Review Procedure Act. Nor has it asserted that, pursuant to section 6, the case should be dealt with expeditiously by a single judge of the High Court. Meanwhile, of course, more than six months after a Board decision in her favour, almost three years after her termination, and despite a decision by the College of Nurses dismissing the allegations of incompetence and professional misconduct, the complainant remains unemployed, awaiting the establishment of a board of arbitration which will determine whether there was just cause for her termination.

18. Given the crowded Court calendar and the vagaries of litigation, it is difficult to predict when the Divisional Court might hear the application for judicial review (leaving aside any question of further appeals). The fall of 1985 appears to be a reasonable assumption. When the Court might render a decision is difficult to predict.

19. It is equally difficult to predict the results or the potential judicial outcomes. For example, if the Court were to hold that the arbitration remedy was beyond the Board's jurisdiction, but did not disturb the finding that the Hospital breached section 64, the Board might have to determine what remedy, if any, should flow where the union's illegality set the stage for an employee discharge, but the employer's illegal conduct effectively prevented a subsequent rectification of that problem. Indeed, how would one apportion liability if the Hospital's judicial review failed and the complainant's grievance succeeded - particularly given her own delay in launching these proceedings? These questions are novel, and it is probably inappropriate to speculate as to how they might be resolved.

20. With this background, we turn to the issues in the instant case.

III

21. The Hospital takes the position that as a matter of discretion, the Board should not entertain this reference but rather should adjourn the hearing and defer consideration of the Minister's enquiry until after the decision of the Divisional Court in the application for judicial review. The Hospital asserts that if it succeeds in its application for judicial review, there would be no need to appoint an arbitration board to consider the merits of Ms. Mordowanec's termination. The Hospital also takes the position that the second arbitration proceeding (i.e., the one directed by the Board following the finding of illegal conduct on the part of the Hospital and ONA) would not be a nullity if the underlying Board decision directing that reference to arbitration were quashed. The Hospital argues that it would be prejudiced if that arbitration proceeding was set in motion.

22. As a matter of statutory interpretation, the Hospital contends that there has been no failure to constitute a board of arbitration under the applicable collective agreement. A board of arbitration has already been constituted and has made a determination in the Hospital's favour. The Hospital argues that section 44(4) of the Act has no application in these circumstances. The arbitration process contemplated by the collective agreement has already been exhausted. The arbitration process envisaged by the Board's remedial order is not one pursuant to the collective agreement at all, but rather is a new and quite different kind of arbitration proceeding flowing from the remedy granted by the Board under section 89 of the Act. What is contemplated by the Board's order is a hearing de novo on the Hospital's alternative submission that there was "just cause" for Ms. Mordowanec's termination. This is a procedure rooted in the Board's own order, rather than the parties' collective agreement. If ONA and Ms. Mordowanec are unhappy about the Hospital's refusal to comply with the Board's remedial order, their remedy lies not in a request to the Minister under section 44(4), but rather a request under section 89(6) to file the Board's order in the Supreme Court so that it can be enforced.

23. We have considered the Hospital's submissions and are of the view that there are a number of factors which must be considered. In the first place, the mere filing of an application for judicial review does not operate as a stay of the Board's decision or warrant a refusal to comply with an earlier Board determination. On the contrary; section 25 of the Statutory Powers Procedure Act clearly distinguishes between "appeals" and applications for judicial review, and provides that the latter do not stay the effect of a Board decision. The opinion of Robins, J. in Re International Woodworkers of America and Patchogue Plymouth, Hawkesbury Mills (1976) 1976 CanLII 625 (ON HCJ), 14 O.R. (2d) 118, relied on by the Hospital, has no application. That decision involved the decision of an arbitration board to which the Statutory Powers Procedure Act does not apply, and which is not protected by the kind of privative clause found in section 108 of the Labour Relations Act. Nor is it the Labour Relations Board's practice to adjourn or stay its process simply because an application for judicial review has been filed (see Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183 [1973] 3 O.R. 832 (C.A.), reversing 1970 CanLII 300 (ON HCJ), [1971] 1 O.R. 383 (O.H.C.)). We might also take note of the comments of Krever, J. speaking for a unanimous Divisional Court in Dominion Dairies Limited v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, and Ontario Labour Relations Board, May 1, 1979 (unreported):

It is our view that we ought not, except in cases where it can be demonstrated that it is necessary to do so in order to do justice, to interfere with the process of a tribunal such as the Ontario Labour Relations Board. We certainly do not want to do anything that would give judicial recognition to a proposition that, simply upon applying for a stay, the process that the legislation provides for can be interrupted merely as a matter of course.

(See also: Wells Fargo Armcar Inc. v OLRB et al. (1981) 1981 CanLII 1887 (ON HCJ), 34 OR (2d) 99.) Once the Board has made a decision, parties are ordinarily expected to abide by it until the Courts rule otherwise.

24. We do not think it is appropriate or seemly for this panel of the Board to enter into a discussion about whether a Superior Court would grant a stay of the earlier Board order or quash the Board decision. It suffices to say that we see no reason why we should disregard the earlier Board decision until a Court of competent jurisdiction orders a stay of proceedings.

25. If the Minister helps constitute a board of arbitration which subsequently holds hearings to determine whether the Hospital had just cause to dismiss Ms. Mordowanec, the Hospital may be put to some expense to defend its position and demonstrate why, after 27 years' service, discharge was appropriate. But, in the context of this case, that is not irreparable damage or even a serious inconvenience bearing in mind the countervailing hardship borne by the aggrieved employee, who has been out of work for more than three years, even though the College of Nurses was not persuaded that she was guilty of any professional misconduct or incompetence. Moreover, while delay may suit the Hospital's purposes and the Hospital may be prepared to shoulder any resulting increase in its liability, ONA is not. The longer the arbitration is delayed, the greater will be the potential compensation payable if the complainant is successful. ONA may bear responsibility for some or all of that amount, and urges the Board to get on with the matter.

26. In our own view, neither the scheme of the Act nor the circumstances of the case warrant an adjournment of this reference. Indeed, given the wording and purpose of section 107, we do not think the Board should do so. If the Minister seeks the Board's opinion, it is the Board's responsibility to give it.

27. In its decision of November 9, 1984, the Board directed, quite clearly, that the parties constitute a board of arbitration in accordance with the formula set out in their collective agreement for the purpose of determining if the Hospital had just cause to terminate Ms. Mordowanec's employment. By that direction, the Board sought to put her in the same position that she would have been in had there been no statutory violation by the union or the Hospital. Can it be said that this arbitration process is generically different from that ordinarily available to the parties and to which section 44(4) would clearly apply? We do not think so.

28. The Board's remedial order does no more than require the Hospital to prove its alternative submission before a board of arbitration established in accordance with the collective agreement. The earlier board of arbitration did not consider that question because it was of the view that the resignation letter was a bar to any assessment of the real merits of Ms. Mordowanec's discharge. The Board decision removes that obstacle. While the Board could have dealt with the matter itself, or directed arbitration on terms subject to its control, the Board determined that it was most appropriate to respect the parties' own bargain and order that the matter should proceed to arbitration, on its merits, in accordance with the formula the parties have agreed upon. In our view, that process is one to which section 44(4) applies, and the Minister therefore has the authority to appoint a nominee to complete the arbitration panel. We do not think anything turns on the fact that the union or Ms. Mordowanec might have tried to enforce the Board's direction to establish a board of arbitration by seeking a judicial enforcement of the Board's direction pursuant to section 89(6) of the Act.

29. For the foregoing reasons, the Ontario Labour Relations Board respectfully advises the Honourable Minister of Labour as follows:

The arbitration process contemplated by the Board's decision of November 9, 1984, is a process under the parties' collective agreement (albeit required by the Board's decision) to which section 44(4) applies, and, accordingly, the Minister has the legal authority to appoint an employer nominee to the board of arbitration.