Ontario Nurses' Association v. Carecor Health Services Inc., 1991 CanLII 6080

Ontario Nurses' Association v. Carecor Health Services Inc.

[1991] OLRB Rep. March 298

3084-90-M Ontario Nurses' Association, Applicant v. Carecor Health Services Inc., Ontario Hospital Association, Baycrest Hospital, Canadian Red Cross Blood Transfusion, Centenary Hospital, Central Hospital, Clarke Institute of Psychiatry, Donwood Institute, Etobicoke General Hospital, George St. L. McCall Chronic Care, Hillcrest Hospital, Humber Memorial Hospital, Lyndhurst Hospital, Mount Sinai Hospital, North York General Hospital, Northwestern General Hospital, Princess Margaret Hospital, Providence Villa and Hospital, Queen Elizabeth Hospital, Queensway General Hospital, Scarborough General Hospital, St. Joseph's Health Centre, St. Michael's Hospital, Sunnybrook Medical Centre, Toronto East General Orthopaedic Hospital, Toronto General Hospital, Toronto Western Hospital, Wellesley Hospital, West Park Hospital, Women's College Hospital, York- Finch General Hospital, Respondents

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

DECISION OF THE BOARD; March 21, 1991

1This is said by the applicant to be an application for a determination under section 106(2) of the Labour Relations Act. More specifically, the applicant requests that the Board deter­mine whether unnamed nurses who it alleges are referred to the individual hospitals "through" the respondent Carecor Health Services Inc., are employees of the individual respondent hospitals. To use the applicant's words, it "seeks the determination as to which employer is the employer of the nurses in question".

2In its statement of background and relevant facts (Schedule C) the applicant asserts that:

19. The respondents have failed to recognize that nurses supplied to the respondent hos­pitals through agencies/registries including Carecor are employed under the relevant collective agreements and accordingly have failed to discharge their obligations to ONA as bargaining agent. In short the respondent hospitals have failed to recognize that they are the employers of nurses supplied to them through agencies/registries.

20. Subsection 9(1) of the Hospital Labour Disputes Arbitration Act ("HLDAA") reads as follows:

The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board necessary to be decided in order to conclude a collective agreement between the parties, but the board shall not decide any matters that come within the the jurisdic­tion of the Ontario Labour Relations Board.

In view of the jurisdiction of this Board pursuant to Section 106 and other provisions of the Labour Relations Act, ONA submits that an interest Board of Arbitration under HLDAA is without jurisdiction to determine any matter within the jurisdiction of this Board including the determination of a recognition clause and/or such a ques­tion as 'who is the employer'. Therefore, any decision of an arbitrator or board of arbitration which purport [sic] to in any way reduced the scope of the recognition clause was clearly beyond the jurisdiction of such arbitrator or board of arbitration and therefore null and void pursuant to the provisions of the HLDAA and the Labour Relations Act.

23. Since 1985 the respondent hospitals on an incremental basis have expanded their utili­zation of agency/registry nurses far beyond that apparently contemplated by the 1985 Board of Arbitration. Agency/registry nurses are currently being used in the Metro­politan Toronto area and possibly in other areas throughout the province to replace full time equivalent nurses, thus eroding the bargaining unit presented by ONA. The degree of use and consequent erosion varies widely from hospital to hospital. The respondent and other hospitals have chosen to introduce Carecor into this situation. Carecor supplied these full time equivalent nurses as part of its service to the respon­dent hospitals.

24. On February 7, 1991, during the current round of collective bargaining with the Par­ticipating Hospitals, ONA served notice on the Participating Hospitals that it took the position that "all agency supplied nurses are employees of the hospital and, as such, are currently covered by the collective agreement...". It requested a response from the ONA as to its position on the question and served notice that, in the event of dis­agreement, "ONA will instruct counsel to bring an application before the Ontario Labour Relations Board under s. 106(2) of the Labour Relations Act. To date, neither the Ontario Hospital Association nor any of the Participating Hospitals, including the respondent hospitals, have responded to ONA.

25. ONA submits that the Board make the declaration requested, pursuant to Subsection 106(2), to assist the protection of stability in the hospital labour relations sector.

The applicant requests relief, in Schedule D, as follows:

1. Declaration that the respondents, or, any combination thereof, as may be deemed appropriate by the Board, constitute one employer for the purposes of the Labour Relations Act.

2. Damages bearing interest, payable to the Ontario Nurses' Association in compensa­tion for losses sustained as a result of the failure of the respondents to recognize the Ontario Nurses' Association as bargaining agent for nurses supplied through agencies/registries to the respondent hospitals.

3. Damages bearing interest, payable to any affected nurses who have sustained any losses as a result of the failure of the respondents to recognized [sic] that said nurses are and have been employees within the meaning of the relevant collective agree­ments.

4. Direction that the respondents be jointly and severally liable for any damages awarded by the Board.

5. Direction that the respondents deliver to the Ontario Nurses' Association, hospital by hospital, on a weekly basis, a statement containing

(a) the names, addresses, telephone numbers of all nurses supplied through the respondent agencies/registries or any other agency/registry;

(b) the dates upon which and the number of hours worked by nurses supplied through the respondent agencies/registries or any other agency/registry;

(c) the reason why agency/registry nurses were required in each case;

(d) the amounts payable by the respondent hospitals to any agency/registry;

(e) the amounts received by nurses supplied to the respondent hospitals through any agency/registry.

6. Direction that the relevant collective agreements be amended to reflect any declaration as may be made by the Board, pursuant to the request set out in paragraph 1 above.

7. Such other and additional relief as may be requested by counsel at the hearing of the matter and deemed appropriate by the Board.

3The applicant refers to Ontario Hydro, [1981] OLRB Rep. July 931 as a case in which the Board has "asserted" jurisdiction with respect to a similar request.

4Section 106(2) of the Labour Relations Act provides that:

(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.

Sections 1(1)(i), (h), and 1(3)(b) provide that:

(h) "dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehi­cles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

(i) “employee" includes a dependent contractor;

(b) who, in the opinion of the Board, exercises managerial function or is employed in a confidential capacity in matters relating to labour relations

Sections 1(1)(b) and 1(2), and 2 of the Hospital Labour Disputes Arbitration Act provide that:

(1)(b) "hospital employee" means a person employed in the operation of a hospital;

(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act.

2.-(l) This Act applies to any hospital employees to whom the Labour Relations Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(2) Except as modified by this Act, the Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purpose to act for or on behalf of any such employees, and to the employers of such employees.

5In Ontario Hydro, supra, the applicant trade union requested that the Board determine whether or not some forty-two persons were employees of the respondent. The respondent denied that they were its employees. Another company intervened in the application asserting that the persons with respect to whom the application had been brought were employed by it and admitting they were "employees" within the meaning of the Act. Subsequently, the respondent Ontario Hydro objected to the matter proceeding any further on the basis that there was no "question" between the parties with respect to the "employee" status of any of the persons who were the sub­ject of the application.

6The Board in Ontario Hydro, supra, disposed of that objection as follows:

11. As indicated by the Board in Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500, once a collective agreement has been entered into, a subsequent dispute as to whether or not a particu­lar person is included in the bargaining unit often involved two questions: (1) whether the per­son is an "employee"; and (2) whether the person is covered by the collective agreement itself, having regard to the language of the "scope" clause of that agreement and any factors relevant to its interpretation. (See also Rio Algom Mines Limited, [1975] OLRB Rep. Jan. 46, and Douglas Aircraft of Canada Limited, [1972] OLRB Rep. Nov. 942.) Under section 95(2) the Board determines only the first question. The second question is a matter for determination by the arbitration procedures specified in the collective agreement, in section 37a of the Act or in section 112a of the Act (if applicable), not by a section 95(2) application. As noted by the Board in Nelson Crushed Stone, the first question "usually involves an assessment of whether the per­son in question 'exercises managerial functions or is employed in a confidential capacity in mat­ters relating to labour relations"'. However, in some cases, it involves the more fundamental issue of whether any employment relationship whatsoever exists between the person in question and the employer which is a party to the collective agreement (i.e., "whether a person is an employee, within the general meaning of that term, of a particular employer": see Hydro-Electric Power Commission of Ontario (1971), 1971 CanLII 1913 (ON LA), 23 L.A.C. 111, at 112 (Weatherill). The Board has held in several cases that it had jurisdiction to determine that fundamental issue under section 95(2).

12. In Central Supermarkets Limited, [1967] OLRB Rep. June 299, the Board was presented with an argument similar to that submitted to the Board in the instant case by the respondent and the intervener, namely, that "while there was no agreement as to the identity of the employer the respondent agreed that the persons in question were employees for the purposes of the Act and, therefore, no question could arise within the meaning of section [95(2)]." In reject­ing that argument, the Board stated:

“5. The Board is of the view that it is empowered not only to decide whether a person is an employee but whether or not the person is an employee of the employer who is a party to the collective agreement referred to in section [95(2)] of the Act. It is not the Board's function to determine the question of the employment status of a person in space, because such determination would be impossible. The employment status of a person can only be determined with relation to a specific employer. The admission by the respondent that the persons in question are employees for the purpose of the Act is a meaningless admission unless the identity of the employer is also agreed to.

6. This issue has been previously dealt with by the Board in the Loblaw Groceterias Co. Limited case, Board File 9845-64-M, in its decision of March 2nd, 1965, wherein the Board stated as follows:

As a preliminary objection to the Board's jurisdiction to entertain this application, counsel for the intervener argues that the issue raised by the applicant is outside the subject-matter of inquiry authorized by section [95(2)] of the Act. He maintains that the inquiry authorized by this section is restricted to the issue of whether a person's particular kind of employ­ment qualifies him as an employee for purposes of the Act. In other words, whether, for example, a person is or is not employed in a managerial capac­ity or in a confidential capacity in matters relating to labour relations or in any other capacity which, by virtue of section 1(3)(a) or (b) or section 2, disqualifies him as an employee within the meaning of the Act. It is his argument that, apart from any other section, if any, which might be avail­able to the applicant for the determination of the issue raised in this appli­cation, section [95(2)] does not empower the Board, at least where the employment status of the person concerned is admittedly in the sense above indicated that of an employee for purposes of the Act, to inquire into and decide whether such a person is an employee of a particular employer. He contends that the section does not confer any jurisdiction upon this Board to adjudicate upon the real question being raised, which, as he argues, is not whether a person is an employee as stated in the section but whether a person, here the respondent company, is an employer. Counsel on behalf of the respondent Loblaws supports the intervener's position that the section is not applicable to the issues being raised in this case.

The manifest object and purpose of section [95(2)] is to provide the parties, while they are bargaining for, or during the operation of a collective agree­ment between them, with an effective and expeditious procedure by which they can obtain a final and conclusive adjudication, binding on all inter­ested persons, of any differences likely to arise between them concerning the question as to whether a person is an employee or a guard. It is self-evi­dent that a very important and obvious question which may arise in such circumstances is, of course, whether a person is an employee of the employer concerned in the bargaining or in the collective agreement or whether such person is an employee of an employer who is not concerned in the matter.

It need hardly be stated that the existence of an employment relationship with the employer for whose employees a union has bargaining rights is basic to any obligation on the part of the employer to bargain under section [14] of the Act. It is equally obvious that unless employees have an employ­ment relationship with the employer who is party to a collective agreement, they cannot, by virtue of section [42] of the Act, be bound by such an agreement. A dispute which involves the question as to whether an employ­ment relationship exists between an employee and the employer concerned or with another employer who is a stranger to the bargaining or collective agreement may well, if it continues unresolved, leave the parties in a diffi­cult stalemate, involving consequences detrimental to good industrial rela­tions. Apart from any other consideration, therefore, we find it difficult to believe that the Legislature was unmindful of this kind of problem arising between the parties when it enacted the section.

It cannot be doubted that the first and indispensable prerequisite of an 'em­ployee' for purposes of the Act is an employment relationship with the 'em­ployer' sought to be affected by the particular provision of the Act under consideration. Moreover, no consideration of the meaning of the word 'em­ployee' in section [95(2)] can be meaningful without reference to the other sections of the Act where the word is clearly used in the sense of indicating the existence of an employment relationship as well as denoting the kind of employment relationship needed to qualify the person as an employee for purposes of the Act (see e.g. section 1(2), 5, 6, 7, 8 and 9). We are, there­fore, at a loss to appreciate how the question of whether a person is an employee for purposes of the Act can properly be considered apart from his employment relationship with a particular employer. Employees as such do not exist in space but only by virtue of an employment relationship with their employer.

In our view, it is more consistent with the language of the section and with the sense in which the word 'employee' is used throughout the Act and with the remedial procedure sought to be afforded by the section, to construe the words whether a person is an employee in section [95(2)] as conferring plenary jurisdiction on this Board to inquire into all questions relating to the status of a person as an employee for purposes of the Act including the identity of the employer with whom the person has the employment rela­tionship than to adopt the restrictive, and we think, narrow-guaged [sic] interpretation advocated by the intervener and the respondent Loblaws.

In the result, we are impelled to find that the present application and the issues raised therein come within the subject-matter of inquiry authorized by section [95(2)].

7. While the Board is of opinion that it has jurisdiction to entertain an application under section [95(2)] in the instant case, its determination of whether or not the per­sons in question are employees of the respondent for the purpose of the Act does not include a determination of whether or not the persons are employees of the respon­dent falling within the bargaining unit described in the collective agreement binding upon the applicant and the respondent. We are of opinion that the question of whether or not such persons are employed within the geographic area of the collective agreement is a matter to be determined by a board of arbitration, constituted pursu­ant to the provisions of the collective agreement."

Similarly, in the more recent case of Sunnybrook Hospital, Board File No. 0874-77-M, dated April 24, 1978, unreported, the Board held that it is within its jurisdiction under section 95(2) of the Act to determine whether certain persons are employees of the respondent employer. That decision reads in part as follows:

“1. This is an application under Section [106(2)] of the Act. In its letter of September 23, 1977 the applicant characterized the issue as 'whether S.H.U.T.C. secretaries are in fact employees of Sunnybrook Hospital or some other organization.'

2. In a decision dated September 30, 1977 the Board ruled that 'the issue raised by the instant application is one which falls to be determined upon an application of the rec­ognition clause in the subsisting collective agreement between the applicant and respondent and accordingly, it is a matter which must be referred to arbitration under the grievance and arbitration provisions of the subsisting collective agreement.' The applicant by letter dated October 20, 1977 requested reconsideration of the Board's decision under section [106(1)] of the Act. In a decision dated January 24, 1978 the Board advised the parties that the matter would be put on for hearing in order to allow all interested parties to make representations.

3. The Board has considered the representations of the parties and is satisfied that its initial decision in this matter was in error. The question as to whether the persons who have been challenged are employees of the respondent, is within the Board's jurisdiction to determine, under section [106(2)] of the Act. (See re Loblaws Groceterias case, 66 CLLC para. 16,078, Central Supermarkets, [1967] OLRB Rep. June 299.) The Board said in the latter case that:

“…….it is empowered not only to decide whether a person is an employee but whether or not the person is an employee of the employer who is a party to the collective agreement referred to in section 79(2) (now [106(2)] of the Act..."'

Accordingly, the Board appointed a Board Officer in the Sunnybrook case to "inquire into whether the [persons in question] are employees of [the respondent] and to report to the Board." (See also Nick's Haulage Limited, [1970] OLRB Rep. Nov. 871 and 873.)

14. The respondent does not dispute that most, if not all of the persons named in this applica­tion, other than those who perform clerical functions, are covered by the aforementioned Col­lective Agreement between the parties if they are employees of the respondent. Thus, the issue in dispute clearly goes beyond the interpretation of their Collective Agreement to the more fun­damental issue of whether any employment relationship whatsoever exists between the persons in question and the respondent; indeed, that fundamental issue is not dependent upon the exis­tence of a collective agreement at all. Accordingly, there is nothing which makes arbitration the particularly appropriate forum for resolving that issue. The Board's determination of the employment status of the. persons in question will serve a useful purpose of the applicant and the respondent, in that it will resolve most, if not all of the matters in dispute between them. More­over, if they are unable to resolve any remaining dispute as to whether one or more of those persons is covered by the Collective Agreement in force between them, the Board's section [106(2)] finding may be a relevant fact for consideration in arbitral proceedings initiated to resolve such dispute (see Re Canadian Industries Ltd., 1972 CanLII 483 (ON CA), [1972] 3 OR. 63 (CA.), but see also Re General Concrete of Canada Limited 1978 CanLII 2178 (ON HCJDC), [1978], 22 OR. (2d) 65 (Div. Ct.)). Counsel advised the Board that arrangements have already been made with the Labour Relations Officer with respect to a number of dates for the continuation of his inquiry, which dates will be used in the event that the Board rules that he has jurisdiction to proceed. The existence of those scheduled dates is a further factor which makes it desirable for this application to proceed, as it is impor­tant from a labour relations perspective that the employment status of the person in question be determined as expeditiously as possible.

15. It was not suggested by any of the parties that the issue of whether or not the persons in question are employed by the respondent was settled by the current Collective Agreement or by any other form of agreement between the applicant and the respondent, nor was it suggested that the applicant had in any way acquiesced in the position taken by the respondent on March 11, 1981 that the persons in question are not its employees. Thus, the Board is satisfied that this is an appropriate case in which to revise the terms of the Board Officer's appointment to more accurately reflect the issue in dispute between the applicant and the respondent.

16. For the foregoing reasons, the aforementioned endorsement of May 25, 1981 in this matter is hereby revised to read as follows:

"The Board appoints Mr. 3. Bowman, Labour Relations Officer, to inquire into and report to the Board on whether the individuals named in the application are employ­ees of the respondent."

7Section 106(2) of the Labour Relations Act has been interpreted by the Board as requir­ing that there be one or more "persons" with respect to whom a question of "employee" (or "guard") status has arisen between parties to a collective bargaining relationship. Accordingly, the Board has repeatedly said that it determines the "employee" status under the Act of specifically named "persons", not of "positions" (see, for example, Royal Mattress Limited, [1987] OLRB Rep. Dec. 1605).

8Further, as the passage from Ontario Hydro, supra, cited above illustrates, an applica­tion to the Board under section 106(2) of the Labour Relations Act is not a substitute for arbitra­tion. The Board determines whether the person with respect to whom such an application is made is an "employee" (or "guard") within the meaning of the Act, not whether s/he is an ''employee'' in a bargaining unit with respect to which a trade union holds bargaining rights. Although for practical purposes a determination of "employee" status may well some way toward resolving an issue with respect to whether a person is in a bargaining unit, the two issues are not necessarily congru­ent. A determination that a person is or is not an "employee" does not necessarily mean that s/he is or is not an employee in a bargaining unit. That latter question is normally one for a board of arbitration to determine (see also, Re Miller et al and Algoma Steelworkers Credit Union Ltd., et al. (1974) 1974 CanLII 860 (ON HCJDC), 6 O.R. (2d) 676 (Ont. Div. Ct.); Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. Jan. 95; The Windsor Star, [1988] OLRB Rep. Apr. 427).

9In this case, the relief requested by the applicant does not include a request for a decla­ration that any person is or is not an "employee" within the meaning of the Labour Relations Act. Also, the application is with respect to a group of nurses as a class, not as individual. On the other hand, what the applicant requests is the sort of relief one would expect to see requested in an application under section 1(4) or a complaint under section 89 of the Act, or in a grievance.

10The present application raises a number of questions, including (but undoubtedly not limited to):

(a) Is it as a general matter appropriate for the Board to continue "who is the employer" questions in applications under section 106(2) of the Act?

(b) Is it appropriate for the Board to do so in this case?

(c) Can the Board grant the relief requested, or any of it, in this applica­tion, either as presently framed or at all?

(d) What is the effect, if any, of the award of the Board of Arbitration referred to in paragraph 21 of the applicant's schedule C?

(e) How, if at all, should this application proceed?

11The applicant has suggested that a Vice-Chair of the Board should be appointed to con­vene a pre-hearing conference to address issues regarding notice, and of evidentiary and proce­dural matters. It may be that a pre-hearing conference may be an appropriate part of the process if this matter proceeds. At this point, however, the Board finds it appropriate to direct the Registrar to schedule this matter for hearing. Notice of the application and of the hearing is to be given to all parties named by the applicant as respondents or interested parties. The purpose of the hearing is to hear the representations of the parties with respect to whether or not, and if so how, this appli­cation should proceed.