Ontario Nurses Association v. West Park Hospital, 2000 CanLII 13298

2967-99-R Ontario Nurses Association, Applicant v. West Park Hospital and Extendicare (Canada) Inc., Responding Parties.

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: Jasbir Parmar, Lorraine Harper and Linda Wright for the applicant; Sarah A. Eves, Cathrine Berge, Jean Rushworth, and Diana Noel for West Park Hospital; Patricia G. Murray and Tom Kitchen for Extendicare (Canada) Inc.

DECISION OF THE BOARD; July 10, 2000

1. This is an application filed pursuant to sections 69 and 1(4) of the Labour Relations Act, 1995 (the “Act”). The style of cause is amended to reflect the correct name of the responding party: “Extendicare (Canada) Inc.”.

2. On the first day of hearing the parties agreed that they would only address two preliminary issues. This decision addresses those matters.

Objection to Paragraph 12 of the Application:

3. West Park Hospital (“West Park”) objects to the inclusion of paragraph 12 of the application as it claims the paragraph does not contain facts material to the determination of this application. West Park further argues that paragraph 12 concerns future matters and is therefor prematurely being raised by the applicant (“ONA” or the “union”).

4. Paragraph 12 of Appendix “B” to the application states:

There are plans to demolish the Prittie Building. It is anticipated that a new building will be built on the Prittie site in order to provide 200 long-term care beds (10 pods of 20 beds). Extendicare Inc. will lease the space or provide management of the operations for a period of 20 years.

5. West Park asserts that there is nothing in this paragraph upon which the Board could base a related employer or sale of business finding, and it is therefore not material to the issues to be decided. Further, it asserts that the transactions contemplated by the applicant have not been finalized and that ONA is on a “fishing expedition” seeking information to which it has no entitlement. West Park wishes the Board to dismiss without hearing any references in the application that deal with the planned permanent facility. It does not want to be required to produce any documents or disclose any facts regarding ONA’s assertions in paragraph 12.

6. Both West Park and Extendicare (Canada) Inc. (“Extendicare”) suggest that their tentative plans, which are subject to ultimate approval by the Ministry of Health, are not relevant to this application as the plans may never materialize, or may change considerably over time. It is conceded however that the Prittie building has now been demolished and that financing is being arranged for new construction.

7. ONA wishes to have production of documents and disclosure regarding the stage of the plans for the permanent facility. It contends in this application that West Park is the true employer of the nurses working in the interim long term care facility; that that facility is located in West Park; and it is being managed by Extendicare. ONA further contends that West Park plans to extend and expand that relationship by building a new facility for more long-term care beds. That is the extent of what ONA claims to know, and it argues it should have access in the context of a sections 69 and 1(4) application to more information about the responding parties’ plans. It can then decide whether there is anything planned that may effect ONA’s bargaining rights and whether it wishes to rely on such information in this proceeding. ONA wishes to see what the evolving relationship between West Park and Extendicare is through the disclosure it believes it should receive as a result of its assertions in paragraph 12 of its application.

8. In Somerville Belkin Industries Limited, [1985] OLRB Rep. May 734, the responding parties wished to limit what they would disclose to the union in a sections 69 and 1(4) application on the basis that some of the information was of a confidential nature. In considering the matter the Board made the following statements with which I agree:

9. … Of course, whether one or more of these entities might be related in the sense contemplated by section 1(4), and even if they were, whether the Board would so declare, would depend upon an assessment of all of the facts. Likewise, as we have already noted, the potential application of section [69] depends upon a careful assessment of all of the economic and business circumstances in light of collective bargaining considerations, and the underlying purpose of both sections [69] and 1(4) which are both intended to preserve rather than extend bargaining rights. At this stage, we do not think it would be appropriate to narrow the scope of the Board’s enquiry or focus on but one set of relationships or parties to the exclusion of the others. Such approach might be warranted if there were full and complete disclosure of the details of these relationships, but is not appropriate where, as here, the respondents are not prepared to fully disclose the legal and economic relations between them.

10. It may be that the union will not be successful in its various assertions. But that does not diminish the respondents’ obligation to provide the required information. Questions of relevance or concerns about confidentiality can be dealt with as they arise. …

11. In the Board’s view it is difficult at the outset of an application of this type for a union to know what will ultimately be significant to establishing relatedness or a successorship. It is because the Legislature has recognized that a trade union is not in the best position to know what the legal or economic relations are between entities that it included sections 1(5) and 69(13) in the Act. The Board has indicated that it will not permit a union to embark on a “fishing expedition”, but if information a union seeks is arguably relevant to the preparation of its case, the Board will likely order its production. It has long been recognized that the responding parties are in the best position to adduce the facts relevant to the inquiry the Board must undertake to determine whether in fact parties are related, or one is a successor to the other, or not.

12. The present case is not like that addressed in the Board’s decision in Daynes Health Care Limited, [1983] OLRB Rep. May 632. In that case the Board was asked by a union and employer to give its opinion regarding the application of section 69 to a situation that had not yet occurred. The Board declined to do so until the transaction had actually taken place. The Board noted at paragraph 13 of the decision that in a volatile business climate many components of a deal may change between the initial conception and completion of the project. The Board therefore dismissed the application as premature.

13. That is not the situation before the Board in this instance. West Park Hospital and Extendicare already have a relationship that the union asserts either renders them related employers, or that Extendicare is the successor employer. ONA simply wants access to further information about a new stage in the relationship that it believes may assist it in making its case before the Board. There is no suggestion in paragraph 12 of the application that ONA is seeking to have the Board make a prospective decision, and indeed it is unlikely that the Board would do so.

14. To the extent that the responding parties assert that ONA is simply speculating about what may happen in paragraph 12 of the application, it is noteworthy that one aspect of the paragraph has already come to pass. Since the date of application the Prittie building has been demolished. Furthermore, it is clear from the parties’ submissions that there are plans to build a new facility on that location, and West Park did not deny that the building would be the permanent long term care facility in which Extendicare would play a role.

15. In all of the circumstances, and given the stage of the proceeding, the Board is of the view that the responding parties should file responses to paragraph 12 of the application, and should disclose to ONA their plans for the Prittie site. Any documentation relevant to the assertions in the paragraph should be provided to the applicant. Any documents produced as a result of this order may not be used for any purpose unrelated to this proceeding. The further responses and production are to be made to all parties and to the Board within 10 days of the date of this decision.

Objection to allegation of section 70 breach:

14. West Park also objects to the union’s allegation that it has breached section 70 of the Act. ONA alleges that West Park has interfered with the bargaining rights of employees by contracting out the operation of the interim long term care beds to Extendicare.

15. West Park denies that it has contracted out work of the bargaining unit as the long term care work is a new endeavour and was not work ever performed by ONA’s members at West Park. In any event, West Park asserts that its collective agreement addresses contracting out, that ONA has filed a grievance regarding this matter, and that the grievance is proceeding to arbitration. It further asserts that grievance arbitration is the proper place for this matter to be addressed as the union has not alleged anything that would suggest that West Park had any anti-union animus when it made the decision to contract this work out. Nor has ONA asserted that West Park interfered in any way with any attempts made by the union to organize the employees at the interim long-term care facility. Finally, West Park asserts that no ONA jobs have been lost, nor hours curtailed, as a result of the Extendicare contract for the long term care beds. Therefore, it argues that ONA has failed to make out a prima facie case for a breach of section 70 of the Act, and the allegation should be dismissed without the Board inquiring any further into it.

16. Section 70 of the Act states:

17. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

18. A reading of the application reveals little that would lead the Board to find that West Park had breached section 70 of the Act. There are no allegations in the application that West Park acted with any anti-union motives when it reached its arrangement with Extendicare regarding the management of the long-term care beds. The Board agrees with West Park that the matter of whether or not the long-term care work could be contracted out is one better dealt with in grievance arbitration. Pursuant to its powers under section 96(4) of the Act the Board therefore declines to inquire further into the alleged breach of section 70 of the Act.

19. Since I have only addressed preliminary matters in this application, I am not seized.

“Gail Misra”

for the Board```