Ontario Nurses' Association v. Carecor Health Services Inc.
[1991] OLRB Rep. August 957
0621-91-R; 0622-91-U; 3084-90-M Ontario Nurses' Association, Applicant v. Carecor Health Services Inc., Baycrest Hospital, Centenary Hospital, Central Hospital, Clarke Institute of Psychiatry, Donwood Institute, Etobicoke General Hospital, 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; Ontario Nurses' Association, Applicant v. Carecor Health Services Inc., Baycrest Hospital, Centenary Hospital, Central Hospital, Clarke Institute of Psychiatry, Donwood Institute, Etobicoke General Hospital, 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; 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, 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. W. Pirrie and P. V. Grasso.
APPEARANCES: James Hayes, Mark Geiger, David Matheson and Dan Anderson for the applicant; T. F. Stone, J. L. Thomson and E. Crabtree for Ontario Hospital Association; Brian O'Byrne for Princess Margaret Hospital; Barry W. Earle and Melany Franklin for Carecor Health Services Inc.; D. B. Francis and K. Marshall for Sunnybrook Health Science Centre; Elizabeth Hosie for Etobicoke General Hospital; and Joanne Elek for Toronto Hospital
DECISION OF THE BOARD; August 27, 1991
1Board File No. 3084-90-M is an application for a determination by the Board under subsection 106(2) of the Labour Relations Act. Board File No. 0621-91-R is an application for relief under subsection 1(4) of the Act. Board File No. 0622-91-U is a complaint under section 89 of the Act in which the complainant trade union (the "ONA") alleges that the respondents have committed certain unfair labour practices.
2The application in Board File No. 3084-90-M as against George Street L. McCaul Chronic Care Centre, Canadian Red Cross Blood Transfusion, and the Toronto Hospital is withdrawn with leave of the Board.
3At the hearing on August 2, 1991, the Board ruled, orally, as follows:
(a) the majority of the Board (Board Member Pirrie dissenting; he would have dismissed the complaint in its entirety) dismissed the allegations in Board File No. 0622-91-U that the respondents had breached section 50 and 66 of the Act;
(b) the Board directed that the subsection 1(4) application in Board File No. 0621-91-R proceed together with that part of the complaint in Board File No. 0622-91-U which had not been dismissed;
(c) the Board directed the ONA to specify the relief it is seeking in the subsection 1(4) application in Board File No. 3084-90-M, both primarily and in the alterative;
(d) the Board directed the ONA to provide particulars of its allegations in paragraph 17, 18 and 24 of schedule C to its complaint in Board File No. 0622-91-U, and, more specifically, of:
i) the names of the "other agencies/registries" referred to in paragraph 17;
ii) the extent and nature of the use by the respondent hospitals of registered nurses provided by the agencies/nurses referred to in paragraphs 17 and 18;
iii) the inquiries made and responses received with respect to the reasons registered nurses were obtained and used by the respondent hospitals from the other agencies/registries as alleged in paragraph 17 and 18;
iv) the extent and nature of the respondent hospitals use or reliance upon the respondent Carecor Health Services Inc. and nurses provided by Carecor Health Services Inc. as alleged in paragraph 18;
v) the inquiries made and responses received with respect to the reasons registered nurses were obtained from the respondent Carecor Health Services Inc. by the respondent hospitals as alleged in the complaint;
vi) the nature and extent of the erosion of its bargaining rights as alleged by the ONA in paragraph 24, both incrementally and in totality;
(e) the Board directed that the application in Board File No. 3084-90-M be adjourned pending the disposition by the Board of Board File Nos. 0621-91-R and 0622-91-U or until otherwise ordered by the Board;
(f) the Board directed that Board File Nos. 0621-91-R and 0622-91-U be pre-heard together on August 30, 1991;
(g) the Board noted the ONA's undertakings to provide the particulars directed by the Board prior to the pre-hearing conference directed by the Board and to provide counsel for the respondents with a list of the areas of inquiry for the purposes of the disclosure contemplated by subsection 1(5) of the Act;
(h) the Board directed that every party provide to every other party and to the Board a list of all documents relevant to the proceedings in Board File Nos. 0621-91-R and 0622-91-U which are in its possession, power or control, and that each party indicate which of the documents, if any, it has listed it objects to producing, together with the reasons for any objection in that respect.
Finally, we wish to note that in its submissions, the ONA advised the Board that the relief it is seeking in these applications and complaint is only prospective from the date of its first application, not retrospective.
4As the Board file numbers indicate, the subsection 106(2) application was the first one filed. As the Board (differently constituted in part) observed in a decision dated March 21, 1991 (since reported at [1991] OLRB Rep. March 298) with respect to that application, the relief which the ONA specified it was seeking did not include the standard request for a declaration by the Board that any person is (or is not) an "employee" within the meaning of the Act. On the other hand, the ONA did request the kind of relief generally sought in an application under subsection 1(4) or a complaint under section 89 of the Act, or in a grievance. Subsequently, the ONA, through counsel, advised the Board that the schedule in which the subsection 1(4) relief and the section 89 type relief was requested had been inadvertently included in the subsection 106(2) application. Although counsel's letter to the Board in that respect did not specifically say so, it was implicit in it that those requests for relief were being withdrawn.
5Later still, the ONA filed the separate subsection 1(4) application and section 89 complaint in Board File Nos. 0621-91-R and 0622-91-U respectively.
6From what the Board heard of the subsection 1(4) application, and notwithstanding the curious reluctance of the ONA to say so directly, it appeared that the ONA is seeking a declaration that the respondents taken together constitute one employer for purposes of the Act, or, in the alternative, that the respondent Carecor Health Services Inc. and the respondent hospitals, either individually or in groups of two or more, constitute several such single employers for purposes of the Labour Relations Act.
7In the section 89 complaint, the ONA alleges, in effect, that the respondent hospitals have formed the respondent Carecor Health Services Inc. to provide a pool of registered nurses to be used by the hospitals. The ONA alleges that the hospitals have used this pool of nurses provided by Carecor Health Services Inc., and by other unspecified agencies/registries, and that the respondent hospitals have refused to acknowledged that such agency nurses (as they may be conveniently referred to as a class) are employees of the individual hospitals who are covered by the various collective agreements which the ONA has with them. The ONA alleges that this conduct by the individual respondents and Carecor Health Services Inc. has resulted in an erosion of its bargaining rights and constitutes a breach or breaches of sections 50, 64 and 66 of the Labour Relations Act.
8In its subsection 106(2) application, the ONA seeks a declaration that the agency nurses provided to the respondent hospitals by the respondent Carecor Health Services Inc. are "employees" within the meaning of the Act, that these agency nurses are in fact employees of the individuals hospitals, and that they are covered by the various collective agreements between the respondent hospitals and the ONA.
9The respondents submitted that both applications and the complaint should be dismissed. They argued that the Board has no jurisdiction to determine the real issue between the parties; namely, whether the agency nurses are covered by the various collective agreements between the ONA and the respondent hospitals, which, coupled with the delay in instituting these proceedings which is evident on the ONA's own pleadings, should cause the Board to dismiss them. In the alternative, the respondents submitted that the real issue between the parties is a contractual one which is within the exclusive jurisdiction of a Board of Arbitration to determine and that the Board should defer dealing with all three matters, but particularly with the subsection 106(2) application, to such arbitration proceedings. The respondents also variously argued that the Board should not consolidate any of the proceedings as requested by the ONA, that the section 89 complaint should be dismissed as against the respondent Carecor Health Services Inc. because no prima facie case has been pleaded against it, and that the proceedings as against the respondents Princess Margaret Hospital and Etobicoke General Hospital should be severed. The respondents also requested that the Board direct the ONA to provide particulars of the allegations in its section 89 complaint.
10It is true that the theme which is prevalent in and common to all three proceedings herein is the ONA's assertion that the respondent hospitals are in breach of their collective agreements with the ONA in that they have refused to acknowledge that the agency nurses are their employees and covered by those collective agreements. The respondents conceded that the agency nurses are "employees" within the meaning of the Act. However, the respondents' position is that these agency nurses are employees of the respondent Carecor Health Services Inc., the agency, not of the individual hospitals, and, further, that such nurses are not covered by any of the applicable collective agreements between the respondent hospitals and the ONA, even if they are employees of those hospitals.
11Nevertheless, upon considering the material before the Board and the representations of the parties, the Board ruled as set out in paragraph 3 above.
12The Board concluded that the subsection 1(4) application should proceed because the issues raised in it lie at the root of the dispute between the parties, and which dispute raises important labour relations, public policy and legal issues. These issues are best, and most comprehensively and expeditiously, litigated before the Board. Indeed, they are issues which can only be determined by the Board.
13The Board did, however, find it appropriate to direct the ONA to specify the relief it is seeking in its subsection 1(4) application. There is nothing necessarily wrong with pleading in the alternative or in seeking alternative remedies, even if the alternatives appear to be or are inconsistent. However, because it is the pleadings (including the request for relief) which provide a structure to a proceeding by delineating the dispute between the parties and the issues to be adjudicated, a party is, in our view, obliged to clearly specify the relief it is seeking.
14The Board did not consider it appropriate to proceed the subsection 106(2) application at this time. However, neither did the Board find it appropriate to defer the matter to arbitration as requested by the respondents. Instead, the Board found it appropriate to defer consideration of whether or not the subsection 106(2) application should be deferred to arbitration pending the disposition of the subsection 1(4) application. It appeared to the Board that the disposition of the subsection 1(4) application is something which is relevant to and could even be determinative of that question, and indeed possibly of the whole subsection 106(2) application. The Board also concluded that hearing this subsection 106(2) application together with the subsection 1(4) application would, given the nature of such proceedings, unduly delay and complicate the subsection 1(4) proceeding.
15It appeared to the Board that the essence of section 89 complaint is that the use of agency nurses, whether or not it constitutes a "contracting out" of work, constitutes an improper attempt to avoid the trade union. Consequently, while the Board was unanimously of the view that the ONA had failed to plead a prima facie case to support its allegations that the respondents have breached either section 50 or section 66 of the Act, the majority of the Board (Board Member Pirrie dissenting) was satisfied that a prima facie case for the alleged breach of section 64 had been pleaded, though somewhat baldly.
16The Board rejected the ONA's argument that it had pleaded all necessary particulars in respect of the alleged of section 64. The Board agreed with the comments in Pebra Peterborough Inc., [1987] OLRB Rep. March 421 at paragraphs 3, 4 and 5 with respect to the rationale for requiring particulars and the factors which the Board will consider in determining whether a party should be required to provide them. The Board appreciated that, to the extent that the ONA's section 89 pleadings repeat its subsection 1(4) pleadings, the ONA may not have all of the information it would like or even that it might require. It is possible, for example, that the reasons for the respondent hospital's use of or reliance on agency nurses may be something which the ONA does not have particulars of. On the other hand, the Board expected that the ONA would have more particulars than it has pleaded regarding the extent and nature of that alleged use of or reliance upon agency nurses. The Board found it difficult to understand how or why the ONA would have initiated any of these proceedings if that was not the case. Further, the Board observed that these proceedings relate to the use of nurses who are said to work side by side with bargaining unit nurses represented by the ONA. In the circumstances, the Board concluded it could be fairly anticipated that additional particulars are available to the ONA and that these should be provided to the respondents.
17In order to avoid a multiplicity of proceedings, and in order to proceed in as comprehensive and expeditious a manner as possible, the Board determined that it was not appropriate, in the circumstances, to sever the proceedings as against the respondent Princess Margaret Hospital or the respondent Etobicoke General Hospital. Nor did the majority of the Board, (Board Member Pirrie dissenting) find it appropriate in the circumstances to dismiss the section 89 complaint as against the respondent Carecor Health Services Inc.
18Similarly, the Board determined that the subsection 1(4) proceeding and what remains of the section 89 complaint should proceed and be heard together (for the distinction between this and consolidation see, for example, Dresser Canada, Inc., [1987] OLRB Rep. Oct. 1243 at paragraph 8). Not only is the underlying dispute and core issue the same in both matters, but it is simply more expeditious to hear the two together. To cite but one example, doing so will eliminate any need to make rulings regarding the admissibility of evidence which may be arguably relevant to one proceeding but not to the other.
19Although the Board declined to dismiss any of the three matters herein because of delay, the Board's rulings are without prejudice to the right of the respondents to raise, in evidence or argument, the issue of delay with respect to the question of the manner in which the Board ought to dispose of them. Further, we note that nothing which has occurred herein precludes the collective agreement dispute between the parties from being taken to arbitration.