Practical Nurses Federation of Ontario v. Strathroy Middlesex General Hospital, 1993 CanLII 7795

[1992] OLRB Rep. February 149

2433-92-R Practical Nurses Federation of Ontario, Applicant v. Strathroy Middlesex General Hospital, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Ronson and G. McMenemy.

APPEARANCES: Douglas J. Wray, Otalene Shaw and Yvette MacGregor for the applicant; Allan Shakes and Glenda Houliston for the responding party.

DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER J. A. RONSON: February 15, 1993

1. This is an application for certification in which the Practical Nurses Federation of Ontario ("PNFO") seeks to represent the following unit of employees of Strathroy Middlesex General Hospital ("the Hospital"):

all employees of Strathroy Middlesex General Hospital employed in a nursing capacity as Reg’d and Graduate Nursing Assistant[s] save and except supervisors, and person above the rank of supervisors.

2. At the hearing into this application, the Hospital raised an objection to proceeding with this matter, on the basis of res judicata. It is the Hospital's position that the PNFO is barred from making the application by a decision of the Board dated October 30, 1992, which dismissed a prior certification application concerning these same parties. In the Hospital's submission, the bargaining unit sought by the PNFO in the present application is the same as that under consideration in the previous decision of the Board, and which the Board found to be inappropriate.

3. This preliminary objection to the application was raised by the Hospital in a letter to the Board of November 26, 1992, accompanying the Reply. Unfortunately, the PNFO was not sent a copy of this letter and so it appears that it had no notice prior to the hearing of the issue. The Board thus heard full argument at the hearing on December 18, 1992 on all issues concerning the appropriateness of the bargaining unit, reserving the right to both the PNFO and the Hospital to make further written submissions with respect to the issue of res judicata. The Board is now in receipt of letters from counsel for PNFO, dated December 31, and counsel for the Hospital, dated January 8, 1993.

4. Ultimately, because of our findings on the preliminary objection, this panel does not need to address the appropriateness of the bargaining unit. Likewise, this panel need not concern itself with the substance of the decision of October 30, nor any of the recent decisions concerning the PNFO and "RNA only" bargaining units, and need not express any views as to the principles which can be derived from them. For the reasons following, we have decided that the present application ought to be dismissed on the basis of issue estoppel.

5. There was no dispute between the parties on the essential facts, which are set out during the course of this decision. This application was filed on November 13, 1992. On October 30, 1992 a panel of this Board issued a decision in which it dismissed a prior application for certification, finding that the following was an inappropriate bargaining unit:

all employees employed as registered or graduate nursing assistants by the Strathroy Middlesex General Hospital in the Town of Strathroy, save and except head nurse and persons above the rank of head nurse.

6. In his letter of December 31, counsel for the PNFO acknowledges that the Board has applied a principle akin to the common-law doctrine of res judicata. However, in his submission, in certain cases where a determination by the Board is based on facts and circumstances that existed at a particular point in time, and there is a material change in the facts over time, the Board's earlier determination will not necessarily be determinative. For instance, the Board may determine that a person is excluded from the Act as exercising managerial duties and responsibilities, yet the Board is not precluded from making a different determination at a later date if there has been a material change in the duties and responsibilities of the person. In the same way, counsel urges that "[i]f the Board's determination of bargaining unit appropriateness is based on the facts, then any decision is obviously determined on the facts as they exist at the time of the Board's determination. If the facts change, the earlier decision cannot be binding. Changes in the facts can occur at any time."

7. The PNFO states that the facts underlying the October 30 decision have changed. Specifically, the facts on which the panel relied to distinguish its findings from the findings of two earlier panels allowing "RNA only" units, have changed, as follows:

1. The RNA who at the time of the earlier application was working as a Porter because she had been laid off as an RNA - Sally Brooks - is now back working as an RNA.

2. The "grandfathered" O.R. technician who was not RNA qualified has now retired. In fact, the Hospital has totally eliminated the classification and job title of "O.R. technician". All the employees currently performing the job are simply classified as "R.N.A.'s".

8. The PNFO urges the Board to find on the "new" facts that the proposed bargaining unit is an appropriate one.

9. In the Hospital's submissions, there are no changes in the material facts and circumstances as they existed or were known to the Board at the time of the prior decision. The previous panel of the Board knew of the "grandfathered" operating room technician, and of the RNA working as a porter due to layoff. In the Hospital's submissions, the question before this panel is exactly the same question that has already been determined by the Board in the October 30 decision, in the context of the same facts.

Decision of the Board

10. We are satisfied that despite the addition of the phrase "in a nursing capacity" to the wording of the bargaining unit proposed by the PNFO in the present application, this unit is the same as that proposed and rejected by the Board in its decision of October 30. In the Board's decision of October 30, it is clearly stated that the unit of employees sought by the PNFO encompassed only those registered or graduate nursing assistants working in a nursing capacity. The unit did not encompass, by way of example, ward clerks in the Hospital who may hold RNA certification. Thus, there is no difference in the group of employees whom the PNFO seeks to represent under the present application, and those whom it sought to represent in the earlier application. Indeed, the submissions by counsel for the PNFO dated December 31, 1992, do not rely on a different bargaining unit description to address the res judicata argument.

11. The Board has in the past endorsed the application by it of a concept akin to res judicata. In Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, the Board stated:

9. Although the Act does not expressly authorize the application of the doctrine of res judicata, there are strong practical and policy grounds for doing so. Rights and duties have meaning only if they are certain and relatively stable. Parties except [sic] that a decision of the Board will clarify their legal relationship and put an end to the controversy between them. Board decisions would lose much of their value if they did not provide a reliable guide for the conduct or planning of the parties' affairs. Continuous litigation would undermine the harmonious relationship between the parties which the Act is designed to foster, and could give rise to abuse and harassment of a weaker party. It could also give rise to costly duplication, inefficient utilization of the Board's scarce resources, and a serious impediment to the effective administration of the Act. This potential consequence is especially serious in labour relations matters where "time is the essence" and finality is an important statutory objective. Moreover, from an institutional point of view, the prospect of relitigation greatly increases the possibility of inconsistent decisions which can only undermine the credibility of the adjudication system and the adjudicators. The doctrine of res judicata serves to minimize these possibilities, and is based upon the entirely reasonable expectation that if a judgment is rendered in an earlier case which is related logically to a subsequent proceeding, the former will be taken into account in resolving the latter. Indeed, this is the theory which underpins the development of the common law and the principle of stare decisis. Cases involving similar factual and legal questions should be decided in the same way, and if there is a close relationship in terms of the parties and issues involved, the interrelationship of the two proceedings may legitimately preclude the relitigation of those issues already settled. The utility of such doctrine is "obvious" as the Board noted in Arnold's Markets, 62 CLLC ¶ 16,221 at page 992:

"It seems obvious that as a general rule, once a fact or question has been put in issue and directly adjudicated upon in a proceeding before the Board, such adjudication should constitute a final determination of the matter between the same parties and conclusive evidence for or against them in any other proceeding before the Board which involves the same question or fact. It is our opinion that the Board ought, as a general rule, to apply a principle analogous to that of res judicata or estoppel with the result that it must accept an existing decision made by it on the merits as conclusive evidence for or against the parties or their privies in any subsequent proceeding brought before it by the same parties and involving the same questions or facts decided by it in the first decision.

12. Just as the Board is not expressly authorized by the Act to apply the doctrine of res judicata, or analogous principles, neither is it compelled to apply it. However, as was stated in the above case, there are strong practical and policy grounds for doing so. More recently, in Ellis-Don Limited, [1992] OLRB Rep. Sept. 999, the Board once again reviewed the policy rationale for the application of res judicata or a like principle by the Board, stating:

11. Res judicata is a form of estoppel. Developed by the courts, the doctrine in its modern form is based on two broad principles of public policy:

a) that all litigation should have an end; and,

b) that no party should be forced to litigate the same matter more than once.

The doctrine of res judicata operates to preclude a party or its privies from re-litigating issues (other than through an appellate process) which have been resolved by a final judgement on the merits by a court or tribunal of competent jurisdiction. In effect, such a decision creates two forms of estoppel: cause of action estoppel and issue estoppel. The essence of such an estoppel, regardless of its form, is that a specific final determination by a court or tribunal of competent jurisdiction of a right, question or fact is conclusive evidence thereof in any subsequent proceeding between the same parties or their privies (or, if the judgement is in rem, in any subsequent proceeding) so long as the judgement stands, unless a party otherwise bound by such a previous determination can establish that there is a fact which, if proved, would entirely change the situation and could not, by the exercise of reasonable diligence, have been previously ascertained (Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] SCR 248, 47 DLR (3d) 544; Town of Grandview v. Doering, 1975 CanLII 16 (SCC), [1975] 61 DLR (3d) 455 (Supreme Court of Canada)).

13. While not bound to apply the doctrine of res judicata, the Board has applied it (or a principle analogous to it) in order to ensure that, subject to its power to reconsider, its decisions are final and conclusive of the disputes or issues which the Board determines (see, among others, Canadian General Electric Company Ltd.,[1978] OLRB Rep. Apr. 384 and cases cited therein; Napev Construction Limited, [1980] OLRB Rep. June 862; K-Mart Canada Limited, [1981] OLRB Rep. Feb. 185; Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976). The Board's application of res judicata has been approved of by the courts (Radio Shack, [1979] OLRB Rep. Mar. 248, upheld at 79 CLLC ¶14216 (Ont. Div. Court) and see also 80 CLLC ¶14017 (Ont. Div. Court); Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, application for judicial review dismissed, November 3, 1981, Ont. Div. Court, unreported).

13. We agree with counsel for the PNFO that the Board does not, in its search for finality, necessarily preclude a party from asking for a determination of employee status where it can establish that the facts have materially changed. In Oakwood Park Lodge, the Board discussed several cases where the Board permitted fresh applications with respect to employee status to proceed, notwithstanding previous agreements between the parties or decisions by the Board. Likewise, it is possible that where a determination of the appropriateness of a bargaining unit is based on a set of facts which are fixed at a particular point in time, a materially changed set of facts might lead the Board to consider a fresh application for the same bargaining unit.

14. It is important to note that the Board has the power, by statute, to reconsider its decisions. The Board has developed principles which it applies in considering requests for reconsideration. In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board stated:

To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132, (Ont. Div. Ct.).

15. The notion that the Board will not normally consider new evidence unless it was not previously available by the exercise of due diligence, is also reflected in the discussion of res judicata in Ellis-Don Limited. Although this is not a request for reconsideration, the timing of the application, and the limited grounds advanced by the PNFO for considering this as a fresh application, seem to raise the same kinds of issues which arise in a request for reconsideration. Certainly, we see no reason to apply any more liberal grounds to this applicant in determining whether it is precluded from making this application, than we would had it made a request for reconsideration.

16. With these thoughts in mind, we have some difficulty in viewing the two facts on which the PNFO relies as distinguishing the present application from the earlier one, as "new". Reading the Board's decision of October 30, it is apparent that the Board was aware that the then current status of the RNA qualified porter and the O. R. technician was a temporary situation. The facts before the Board established that the only O.R. technician without RNA qualification was expected to retire shortly. The facts also established that the RNA qualified employee who was working as a porter had chosen to take the position of relief porter in order to avoid lay off. Again, it was foreseeable that this employee might be returned to her RNA job. Thus, the findings of the Board with respect to the appropriateness of the bargaining unit proposed by the PNFO were made against a set of facts which included the knowledge of and anticipation of the facts placed before this panel. In this respect, it would be destructive of the parties' and of the general community's interests in finality and certainty of Board decision-making, to permit the re-litigation of the issues which the Board has already determined in its October 30 decision.

17. Further, even if the facts which are placed before us could be viewed as "new" facts which are a change from those before the Board at the time of its October 30 decision, we do not see them as so changing the landscape of the circumstances under consideration by the previous panel, as to support a fresh application.

18. For these reasons, this application is dismissed on the basis that it is in essence a request for the re-litigation of issues which have been finally determined by the Board between these parties.

DECISION OF BOARD MEMBER G. MCMENEMY: February 15, 1993

1. I dissent.

2. The majority decision has dismissed this application for certification on the basis of issue estoppel, and I disagree with their reasoning for the dismissal.

3. In the decision, counsel for the Practical Nurses Federation of Ontario ("PNFO") acknowledges that the Board has applied a principal akin to the common-law doctrine of res judicata, and goes on to point out how different facts and circumstances can alter an earlier decision of the Board. (Paragraph 6)

4. In dealing with how the facts have changed, I will begin with the O.R. technician. The O.R. technician in the earlier case was a separate classification, and the person in the job was not R.N.A. qualified, and going to retire soon. When the person retired, if the classification had been filled by a person who was not R.N.A, qualified, then I would agree that the facts had not changed. But that is not the case. The classification, and the job title has been totally eliminated, and anyone now performing that job is now simply an

5. In regards to the porter position, again there is a change of facts. In the earlier decision, the bargaining unit applied for included an R.N.A. qualified person who was working as a porter, which was agreed to by both parties. In the application before us, this fact is no longer present, since this person is no longer working as a porter.

6. In the earlier decision, the majority found these two facts "particularly troublesome", and which they used to distinguish their case from Mississauga Hospital, [1991] OLRB Rep. Dec. 1380, and South Muskoka Memorial Hospital, [1992] OLRB Rep. Apr. 520. The majority in doing so, decided contrary to a line of cases that had established the appropriateness of an RNA-only bargaining unit. With the earlier Strathroy case, using this narrow fact difference, it is not fair or reasonable for the majority in this decision to broaden the factual context than was actually considered in the earlier decision.

7. The current application before this panel, involving the same parties in the earlier decision, is not a request for reconsideration, or an attempt to re-litigate an issue already decided. It is an application based on a different factual context than the earlier Strathroy decision; a material change of facts that goes to the heart of the earlier decision and which drastically changes the circumstances considered by the majority in this decision.

8. I would not dismiss this application, but let the certification process determine the natural course of this application by the PNFO.