0925-99-U Ontario Public Service Employees Union, Applicant v. Multi-Professional Support Services Inc. and The Crown in Right of Ontario (Ministry of Health), Responding Parties.

0926-99-R Ontario Public Service Employees Union, Applicant v. Multi-Professional Support Services Inc., Responding Party v. Huntsville District Memorial Hospital (Algonquin Health Services), Intervenor.

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: David Wright, Marlene Gerrard, Don Stewart, Anita Woolman, and Anne Fauberg for the applicant; Roy Filion, Julie McAlpine, Marlene Irwin and Ted Underwood for the responding party Multi-Professional Support Services Inc.

DECISION OF THE BOARD; March 20, 2000

1Board File No. 0925-99-U is an unfair labour practice complaint made pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violations of sections 70, 72, 76, and 86(2) of the Act. Board File No. 0926-99-R is an application under section 69 of the Act claiming that there has been a sale of a business between the Huntsville District Memorial Hospital (Algonquin Health Services) community care access centre (the “CCAC”) and Multi-Professional Support Services Inc. (“MPSS”).

2Prior to the commencement of the hearing the Board was informed that a settlement had been reached between the applicant (“OPSEU” or the “union”), the CCAC and the Crown in Right of Ontario. Those parties did not participate in the hearing.

3The remaining parties, MPSS and OPSEU, agreed that there are three issues for the Board to decide. Firstly, the Board must decide whether there has been the sale or transfer of a business within the meaning of section 69 of the Act. If so, given that there has been an intermingling of employees, should the Board order that a representation vote be held among all of the MPSS employees to determine whether OPSEU should represent them in their bargaining relations with that employer. Finally, with respect to the union’s section 96 complaint and assuming that a sale is established, the Board must determine whether or not MPSS breached the Act when it failed to bargain with OPSEU and reached agreements individually with the nurses who came from the CCAC to MPSS.

4In order to understand the context in which these issues arise it is necessary to sketch in some historical background. The Board has already had occasion to outline this history in its decision in Huntsville District Memorial Hospital, [1998] OLRB Rep. Sept./Oct. 801. The Huntsville District Memorial Hospital is a full service public hospital located in Huntsville. For many years the hospital operated a home health care program which provided a range of services to clients in their homes. The services included nursing by registered nurses and registered practical nurses; therapy services provided by occupational therapists, physiotherapists, and speech language pathologists; and homemaking services through homemakers. Case managers, coordinators of the various services, clerical and administrative staff, and senior management administered the program.

5Around January 1996 the provincial Minister of Health announced a new model for the provision and coordination of long-term care community services through the formation of 43 community care access centres in Ontario. These CCAC’s were to become responsible for providing information and referral regarding long term care services; coordinating service planning, budgeting, tendering and monitoring of service contracts for delivery of in-home services; case management and eligibility determination; and, the provision of placement coordination services for long-term care facilities like nursing homes and homes for the aged.

6The CCAC’s took over from the host of community organizations that had provided aspects of all of these services to their respective communities. The Ministry of Health determined that the CCAC’s would be responsible for the arrangement of nursing care, professional therapies, social work, dietetic services, homemaking, personal support and respite care through the use of service providers who would not be employees of the CCAC, but whose services would be purchased from both non-profit and commercial service providers. Service providers would have to bid for work through a structured “Request for Proposal” bidding process which would be overseen by the CCAC. The government provided the guidelines for this bidding process. A transition period of three years was allowed to permit non-profit and commercial service providers to become fully competitive in the proposed bidding process.

7The CCAC in the Huntsville area (Muskoka and East Parry Sound) was established in May 1997 and it was envisioned that by April 1, 1999 it would be acting as a broker for all of the services outlined above. Instead of the three-year transition period envisioned by the government, this CCAC had only two years in which to divest itself of its direct service provision, likely because it did not come into being until 1997.

8Marlene Irwin is the President of MPSS and as such gave evidence about the company. MPSS was formed in 1995 to provide foot care to private clients in their homes. At the time Ms. Irwin, who is a registered nurse, held a full-time position and conducted the business outside of her normal work. The business expanded to include nursing and home care services and employed both registered nursing staff and non-registered staff. By October 1997 MPSS had 20 service providers on staff made up of registered nurses (“RN”), registered practical nurses (“RPN”), home support workers, health care aides, and personal support workers. These persons provided services on a part-time as-needed basis. MPSS billed its private clients directly and was paid by them. It received no public funding at that juncture.

9In and around October 1977 MPSS bid on and was successful in receiving its first contract from the CCAC for 10 per cent of the physiotherapy services that had heretofore been provided directly through the CCAC. This was not a nursing service.

10As of April 1998 MPSS was successful in getting contracts from the CCAC to provide 30% of the nursing services and 30% of the physiotherapy services, the total amount of work in those areas that the CCAC divested in that year. The contract was for a one-year period.

11On April 1, 1999 MPSS was contracted by the CCAC to provide approximately 98% of its nursing services and an unspecified percentage of its physiotherapy, dietary, and nutritional services. The nursing contract is the matter of interest in this proceeding. MPSS continues to provide private nursing services in addition to the services provided under the auspices of the CCAC. The private work represents about 10% of the total nursing services MPSS provides. That work may come directly from private individuals. It may also come indirectly through the CCAC: After the CCAC determines what nursing services it will pay for, a client may decide that more services are needed and therefore contract privately with MPSS to provide those services over and above what the CCAC is covering.

12In the process of making a proposal to the CCAC for the nursing services, MPSS followed the detailed guidelines that had been provided by the CCAC to all those who wished to tender for the work. The last proposal was made on November 10, 1998, which resulted in the April 1, 1999 contract for nursing services. When MPSS was awarded its last contract, the proposal of November 1998 became a part of the actual contract document. MPSS has therefore contracted to provide services to the CCAC in accordance with the text of its proposal, in addition to the CCAC contract document itself.

13MPSS gets referrals from the CCAC in the following manner. The CCAC has a staff of around 16 case managers to deal with all of the clients who approach it for the provision of its various services. Each case manager handles a caseload of between 100 and 125 clients. The case manager is responsible for the co-ordination of all of the client services required by each individual in his or her caseload and determines which specific types of services are needed. If nursing services are required, the CCAC case manager contacts MPSS and makes a referral for a particular client. The case manager indicates the kind of services required, and the frequency of the service at the outset. She or he then sends MPSS written and more detailed instructions regarding the services to be provided to that client.

14MPSS considers the service needed, the geographic area in which the client is located, who among its own service providers may be able to do the work, and whether that client has been served by one of the MPSS nursing staff before. In some instances the CCAC requests that a particular service provider be assigned to a client. In that case MPSS attempts to comply with the request. In the normal course, having considered the various matters outlined above, MPSS then contacts a service provider and offers the person the work. If the service provider accepts the new client, then the work is assigned to that individual. From then on there is a four-way interaction between the CCAC case manager, the client, the service provider and MPSS.

15The service provider is employed by MPSS and as such has contracted to provide services in a particular manner with established reporting mechanisms. She or he will also need to interact with the CCAC, which provides any medical supplies needed for the provision of services to the client. The CCAC provides service providers with dressings and other disposable supplies needed for a client for one week at a time. The service provider and the case manager at the CCAC discuss the client’s ongoing needs and progress to assess what services are required and with what frequency. Any recommendations for modifications or increases in service provision, which are identified by a service provider, must be communicated to a case manager immediately or within one day of the client visit. A case manager may also ask a service provider to attend at a case conference regarding a client. Finally, the service provider interacts with the client or family to establish times for visits and the provision of the services.

16According to Ms. Irwin there has been one instance of a CCAC case manager dismissing an MPSS service provider from a particular client’s case. The case manager then contacted MPSS to ask that another nurse be assigned to that client. This was a tangible example of how the case managers at the CCAC are in control of service provision to clients even though it is MPSS which has been contracted to provide the services.

17From a review of the MPSS November 1998 proposal it is clear that MPSS envisaged a very close relationship with the CCAC if it was a successful bidder for the nursing services. As has been noted earlier, the proposal is now a part of the contract between MPSS and the CCAC for the provision of nursing services. As such, it is the guiding document on how MPSS will fulfill the contract. MPSS indicated it would work collaboratively with the case manager regarding any client’s initial care plan, progress and projected discharge date. The MPSS direct service providers would be available to meet with the case managers when requested to do so. The case managers are accepted as the linkage between the clients and MPSS. It is expected that the case manager will normally deal directly with the client’s physician, and that any new physician orders will be communicated to MPSS through the case manager. While there would be consultation between MPSS staff and a case manager regarding the care to be provided to a client, ultimately the case manager decides what services can be provided. The case manager communicates any changes in a client’s care plan directly to the service provider. MPSS has contracted to adhere to the care and service plan as assessed by the CCAC. Management of MPSS agreed to provide the case managers at the CCAC with routine reports as required by the CCAC.

18In its hiring MPSS undertook to hire personnel with skills reflective of those which have been identified by the CCAC as essential and desired skills. All new service providers hired by MPSS are oriented to both the MPSS and CCAC policies and procedures. A list of the MPSS nursing service providers was provided to the Board. It consists of 45 RNs and 11 RPNs. Of these registered nurses and registered practical nurses, 21 were employees of the CCAC before the devolution of services to MPSS. Two of the 21 are still part-time case managers for the CCAC. Six additional registered nurses who worked for the CCAC were also employed by MPSS, but have since left. Five of the six began to work for MPSS in March or April 1998. The remaining one nurse started in April 1999 and left in November 1999.

19Prior to March 1998 MPSS did not employ any service provider who also worked for the CCAC or its predecessor organization. The vast majority of CCAC registered nurses and registered practical nurses who started with MPSS did so in March 1998 or on April 1, 1998, which dates coincide with when 30% of the nursing services were devolved from the CCAC to MPSS. Most of them continued to work for the CCAC in addition to working for MPSS because at that time the CCAC still performed 70% of nursing services. After April 1, 1999 about three nurses who worked for the CCAC joined MPSS. All of the service providers who came from the CCAC to MPSS, whether by April 1998 or April 1999, continued to provide services to the same clients they had previously dealt with at the CCAC. Each service provider signed a standard form contract with MPSS for a one-year period. In 1998 the contract ran until March 31, 1999. In 1999 the contract indicates it expires on March 31, 2000.

20MPSS undertook to advise a case manager if any service could not be provided. A service provider may only refuse to provide services to a particular client following consultation with MPSS staff (the field coordinator) and the CCAC case manager, and having gone through a notification and documentation process which essentially involves the case manager being provided with considerable information. Where an MPSS service provider cannot find the client to whom services are to be provided, the case manager must be notified and given all relevant information within 24 hours.

21Where a service provider is of the view that there is a degree of risk involved in providing the services required to a client, there must be consultation with the case manager and the MPSS service management team before any decision is made as to the delivery of services. MPSS undertook to complete an Occurrence Form and submit it to the case manager within five days of a risk being identified. In consultation with the case manager a plan of action is arrived at, and only if the case manager agrees can MPSS determine to withdraw services in such a situation.

22If the CCAC requests that a service provider give a client CCAC brochures or other literature, MPSS has undertaken to ensure this is done. In the event that there is a client complaint or any incident occurs in the course of a client visit, MPSS has a swift process for ensuring that the case manager is informed and that a CCAC Incident/Occurrence Form is faxed to the case manager. The matter is then discussed between MPSS and the case manager to arrive at a proposed plan of action, and MPSS pursues the complaint until it has been resolved to the satisfaction of the client and the case manager.

23MPSS maintains individual client records in accordance with the standards the CCAC requires. Any significant changes in a client’s status are verbally communicated to a case manager immediately or within 24 hours. Case managers are provided with each client’s progress notes for the month within five days of the end of each month. They are also sent a Client Summary of Service Provision every month. Quarterly or upon request, MPSS provides the CCAC with a report regarding its adherence to the Service Agreement. This report is provided in a format acceptable to the CCAC.

24MPSS undertook to maintain a continuing quality improvement process with respect to the provision of services to clients. The process is one of sending out questionnaires on a random basis, collating results, considering what service improvements can be made, and creating an action plan. This information is communicated to the CCAC for its perusal and feedback.

25When a client is finished with services the case manager is advised verbally of the discharge that day or on the next working day. A written discharge report is provided to the case manager within five working days of the final visit. This report indicates the last visit date, the outcome, and a plan of care for the client’s ongoing problems or needs.

26As has been outlined above, there are also all manner of other reports made regarding changes in status, incidents which may occur, an inability to provide services, withdrawals of services, and so on. In addition, MPSS undertook to advise the CCAC both verbally and in writing about any significant organizational changes it made within its own infrastructure or service delivery process.

27MPSS invoices the CCAC for services provided on a bi-weekly basis. It had its database custom designed to meet the CCAC reporting and invoicing requirements. It also provides the CCAC with a weekly Service Advice Form on an IBM compatible diskette. MPSS carries the liability and malpractice insurance stipulated by the CCAC. Pursuant to the legal contract executed with the CCAC, MPSS agreed to comply with the requirements for services as stipulated by the CCAC and in compliance with CCAC standards. It also agreed to comply with the Algonquin Health Services policies with respect to business gifts, signing authority, standards, conflict of interest, confidentiality, record keeping, and advertising.

28The contract gives the CCAC the right to have access to MPSS premises and records at any time in order that the CCAC may review MPSS policies and procedures to ensure they are in compliance with the CCAC standards. The CCAC also has the contractual right to monitor and evaluate MPSS’ performance through visits to clients. It can request that MPSS submit financial statements documenting revenues and expenditures on CCAC-funded services. The CCAC can, without consultation with MPSS, renew the contract annually until March 31, 2002. This means that MPSS has no opportunity to re-negotiate the contract until 2002. Further, the CCAC can extend the contract for a further 90 days after the expiry date on the same terms and conditions presently in place. The contract is not exclusive, and MPSS is free to take on any other work it wishes to during the contract term.

29Ms. Irwin testified that she was aware during the tendering process in the late fall of 1998 that there was some union activity regarding the nursing staff at the CCAC. It appears that MPSS provided the CCAC with a list of its service providers during the certification process. Ms. Irwin was aware before she signed the latest nursing services contract in February 1999 that OPSEU had been certified as the bargaining agent for the nursing staff at the CCAC and that the certification had taken place in December 1998. She knew before April 1, 1999, when MPSS took over the contract, that OPSEU was of the view that it had successor rights at MPSS for the nursing staff. She received a Notice to Bargain from the union on April 20, 1999.

30MPSS argues that there has not been a sale or transfer of a part of a business in this case. Prior to April 1, 1999 it states that MPSS already had 30% of the nursing work and after that date it has simply been sub-contracted to perform 98% of the nursing work. It argues that the vast majority of the “CCAC” nursing staff was already working for MPSS before April 1, 1999, so that there was no significant transfer of personnel on or about April 1, 1999. MPSS argues that those persons had been employed since March or April 1998, so they had been with MPSS for some time. In any event, according to MPSS there was no requirement that it hire the CCAC nursing personnel. It could have hired any staff so long as persons were qualified to do the work in question. It does not know how many nursing staff the CCAC had or who did not apply for jobs at MPSS.

31The employer also states that the CCAC has not divested itself of anything as it continues to maintain a significant degree of control over the work given to MPSS. The case managers have day-to-day control over the assignment of work and how it is performed. It is pointed out that nothing in the contract with the CCAC indicates that there is any commitment to provide MPSS with 98% of the nursing referrals – that remains in the discretion of the CCAC. The CCAC alone maintains the discretion to continue the contract for services from one year to the next. It is a supplier/client relationship. Therefore, MPSS argues, this situation is one of subcontracting of work for a limited period of time, and is not a sale or transfer of a part of a business.

32MPSS argues that even if a sale of a business is established, there has been no breach of the statutory freeze as the union did not send a Notice to Bargain until April 20, 1999. By that date MPSS had already concluded its individual hiring contracts with all of the ex-CCAC nurses. Since there was no subsisting collective agreement with the CCAC, the freeze did not begin until April 20, 1999 for MPSS.

33In the event that the Board finds that there has been a sale of a business, MPSS argues that a representation vote should be held among all of the MPSS nursing staff as there has been an intermingling of employees of the CCAC and MPSS.

34The union argues that there has been a transfer of a part of the CCAC’s business to MPSS. It characterizes it as a form of “contracting-in” because of the high degree of control that the CCAC continues to exercise over both the flow of work and the manner in which services are provided. It argues that MPSS has effectively received the contract for almost all of the nursing services that had heretofore been provided by the CCAC and its staff. The only aspect of the arrangement over which MPSS maintains control is that of the actual hiring and retention of nursing staff providers. Since in all other respects the CCAC maintains control, the union argues that this is not a pure sub-contracting arrangement.

35In the event that the Board finds that there has been a sale of a business, the union urges the Board not to order a representation vote. While OPSEU concedes that there has been an intermingling of employees at MPSS, it argues that 27 of the 51 persons on the MPSS employee list on April 1, 1999 were former CCAC nursing personnel and were represented by OPSEU. Therefore, it suggests that greater than 50% of the potential bargaining unit was represented and there is no need for another vote.

36OPSEU concedes that the statutory freeze provision does not become operative until the union gave MPSS notice to bargain on April 20, 1999. However, the union argues that its bargaining rights continued in any event, and as such, MPSS should have bargained with the bargaining agent rather than dealing directly with the individual employees when it negotiated their individual contracts. The union asserts that MPSS knew before it signed the contract for nursing services in February 1999 that OPSEU had been certified to represent the nursing staff at the CCAC. The union had itself informed MPSS before the contract commenced that it saw itself as the bargaining agent for the nursing staff at the “successor employer”. It therefore claims a breach of section 70 of the Act. As a remedy the union asks that the Board return the former CCAC employees to the position they would have been in but for MPSS’ breach, and asks that the individuals have their original visit rate and mileage rate restored.

DECISION

Has there been a transfer of a part of a business within the meaning of section 69 of the Act?

37The relevant portions of section 69 of the Act are:

69. (1) In this section,

"business" includes a part or parts thereof; ("entreprise")

"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")

(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 16 or 59, as the case requires.

(6) Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.

(9) Where an application is made under this section, an employer is not required, despite the fact that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application.

(10) For the purposes of sections 7, 63, 65, 67 and 132, a notice given by a trade union or council of trade unions under subsection (3) or a declaration made by the Board under subsection (6) has the same effect as a certification under section 10.

38The Board has generally held the view that a business is a combination of physical assets and human initiative. In determining whether there has been a transfer of a part of a business, the Board therefore considers whether the various elements of the predecessor’s business can be traced into the hands of the alleged successor. It also considers whether the work performed before and after the transfer is substantially similar, as this will give rise to a strong inference that there has been a transfer of the business. To assess this element the Board looks at whether the work is performed at the same or substantially the same times and places, in respect of the same or substantially same goods or services, and for the same or substantially the same customers. However, the continued employment of the predecessor’s employees is only one factor to be considered, unless the employees have some combination of accumulated skills, ability, know how or business contacts which are crucial or irreplaceable and without which the business could not continue as a going concern. (See Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193).

39The Board has consistently held that, except in exceptional circumstances, a continuity of work or employees alone is not sufficient in and of itself to find a successorship, but rather, there must be a review of the entire business entity. In Metropolitan Parking, cited above, the Board articulated the following test:

37. The present case involves a form of subcontracting, and subcontracting arrangements always involve the transfer of work. Work or services performed by A’s employees within A’s own organization are “contracted out” to B, and B uses his own managerial skills, plant, equipment and “know how” to supply to A, at a price, the product, services, facilities or components formerly produced by A’s employees. A, therefore, is contracting for the use of B’s economic organization in lieu of his own. A is generating a particular demand, or market, for B’s product, and it is implicit in the arrangement that, thereafter, the two businesses will remain in a kind of symbiotic relationship, bound together by close economic ties. The continuity of the work, and the preservation of a close economic relationship, between the two parties is implicit in subcontracting and does not, in itself, establish a transfer of all, or part, of a business. If it is clear on the evidence, however, that B is unable to fulfill A’s requirements with his existing equipment or organization, and received from A a transfer of capital, assets, equipment, managerial skills, employees or know how, then the transaction no longer looks like a simple contracting out of work. A may not be making use of B’s economic organization, rather A may be transferring part of his economic organization to B (and recall that section [69] is triggered by the transfer of “part of a business”) or merely permitting B to make use of his (A’s) organization while retaining control and direction of the related economic activity. …

40The union relied on the Board’s decision in Parnell Foods Limited, [1992] OLRB Rep. Dec. 1164, for the proposition that the facts of this case are more akin to a “contracting in” situation and that a transfer of a part of the business should therefore be found. The Board was addressing an application under the Successor Rights (Crown Transfers) Act in that case, but adopted the approach that the Board generally takes in section 69 applications. The Ministry of Correctional Services sub-contracted all of the meal preparation for a number of its correctional institutions to Parnell Foods Limited but maintained an extremely high level of control over the operation. Parnell used the institutions’ kitchens and utensils; the institutions provided the inventory of food, beverages and other supplies; the Ministry dictated how many staff had to be hired and what positions they must fill; Parnell had to comply with many policies regarding what food could be served, how much, whether inmates could be served second helpings, and so on; Parnell employees had to display a certain attitude towards the inmates; and the company had to participate in an inmate training program. The Board described the contract as a “labour only subcontract”.

41In Parnell the Board reiterated that the granting of a certificate to a union does not grant the union proprietary rights over the work functions performed by the employees in a bargaining unit. Bargaining rights do not attach to work or grant a right to the continuation of particular work. The Board stated:

86. The Board’s conception of the “business” under the Labour Relations Act is an operational or instrumental one. The business is not its legal envelope, nor the employees, nor some incidental or unrelated grouping of assets nor the body of work in which employees may be engaged from time to time. It is a delivery system, an economic vehicle, an organizational means of getting something done. It is to this vehicle that bargaining rights attach and in which they continue if the undertaking or a coherent part of it is transferred to a new owner.

87. Regardless of the difficulty in defining what a “business” is in particular cases, the Board has consistently held that it is not synonymous with the employees or their work, nor does a successorship arise merely because employees formerly represented by a trade union end up working for someone else, or the work which unionized employees once did ends up being done by someone else. Under the Labour Relations Act, a transfer of work does not, by itself, result in a transfer of bargaining rights even when the work transfer is effected by means of a subcontract so that the work in question is identical. [The Board went on to quote at length from Metropolitan Parking, cited above].

88. For a transaction to be considered a “sale of a business” there must be more than the performance of a like function by another business entity. There must be a transfer from the predecessor of the essential elements of the business as a block or as a “going concern”. A business is not synonymous with its customers or the work it performs or its employees. Rather, it is an economic organization which is used to attract customers or perform the work.

42The Board noted that in the Supreme Court of Canada decision in Syndicat national des employees de la Commission scolaire regionale de l’outaouais (CSN) v. Union des employes de service local 298 (FTQ), Bibeault et al. 1988 CanLII 30 (SCC), [1988] 2 SCR 1048, the Court rejected the notion that bargaining rights attach to the employees’ “work”, as opposed to the undertaking in its totality.

43In The Corporation of the City of Stratford, [1985] OLRB Rep. June 923, the City contracted out its garbage collection to an established waste management company. It required that garbage collection be done within certain hours, and on certain days in specified areas. In that case, as in the case before me, the successful bidder was an established company that had been providing the same services to other clients before getting the City of Stratford’s contract. It had its own management structure, assets, equipment, employees, entrepreneurial initiatives and business skills. The Board found that all that the City had transferred to the sub-contractor was the work that it no longer wished to perform, and not a part of the City’s business.

44The CCAC is no longer permitted to provide direct services and must therefore seek contractors for the nursing services aspect of its work. MPSS was a company set up in 1995, long before the CCAC began to look for a nursing services contractor in 1998. MPSS had an infrastructure for the provision of the type of services that the CCAC wished to contract for. Indeed, private individuals had already been availing themselves of the MPSS services before the CCAC tendered its work. MPSS had its own management, staff, and “know how” for the provision of contracted nursing services before the CCAC contracts. While there is no doubt that MPSS has grown considerably since 1998 as a result of the work it has received from the CCAC (30% of the CCAC’s nursing services in 1998, and up to 98% in 1999), nonetheless, it was already an established company doing precisely this work before the infusion of the CCAC contracts.

45The majority of the CCAC nursing staff who wished to join MPSS did so in 1998, almost one year before MPSS became the majority nursing services contractor to the CCAC. Around April 1999 only 4 more CCAC nurses joined MPSS when it began to provide the bulk of the CCAC’s nursing services. Further, there is no evidence to suggest that any management personnel or all RNs and RPNs from the CCAC came to work at MPSS. The evidence is to the contrary to the extent that MPSS had and has hired almost half of its nursing complement from elsewhere and outside of the CCAC’s past staff. Thus, it cannot be said that there was an en masse movement of personnel from one organization to the next at the time that the transfer is purported to have taken place on April 1, 1999. There is nothing to suggest to the Board that MPSS would not have been able to provide the CCAC with nursing services but for the hiring of some CCAC former nursing personnel. Undoubtedly it was of assistance to MPSS that there was a pool of trained nursing staff available in the Huntsville and Parry Sound area as a result of the CCAC getting out of the business of providing nursing services itself. However, there was no arrangement with the CCAC that its nursing staff would be hired by MPSS.

46MPSS has its own offices, computers, customized computer systems, managerial skills, and personnel. It received no capital or assets from the CCAC when it was the successful bidder for 98% of the CCAC’s nursing services. It had no obligation to hire the nursing staff the CCAC no longer needed. It is clear that MPSS was not the recipient of the CCAC’s economic organization as it had a pre-existing business providing private clients with nursing services. That business has simply grown considerably as a result of MPSS successfully bidding for the CCAC work which the CCAC no longer wished to do on its own.

47The situation in this case is quite different from that in Thunder Bay Ambulance Services Inc., [1978] OLRB Rep. May 467, which the union drew to the Board’s attention. In that case the Ministry of Health determined that the two ambulance services in the Thunder Bay area had to be amalgamated. The two hospitals that had been running the services did not wish to consolidate the services so the Ministry tendered the work of the operation of the ambulance service. A manager of one of the existing ambulance services was the successful bidder. His company, Thunder Bay Ambulance Services Inc., therefore received all of the ambulances and equipment that had heretofore been used by the two hospitals, but which were owned by the government. He also hired the vast majority of the personnel who had been providing the services through the two hospitals. In that case the Board found that there had been a transfer of a business within the meaning of section 69. It so found because the part of the predecessors’ business which had been transferred was essentially the management and operation of a group of assets owned by the Ministry of Health. Key management and personnel was, in the hands of the successor business, doing precisely what had been done before. The Board found that the essential elements of the predecessors’ businesses were transferred to Thunder Bay Ambulance Services Inc. without any hiatus in the operations because of the level of expertise and “know how” which moved from the predecessors to the successor.

48In the Board’s view the only aspect of the CCAC’s business that may be seen to have moved to MPSS is the nursing services work that had heretofore been performed by the CCAC staff. This is a subcontracting arrangement and not a transfer of a part of a business within the meaning of section 69 of the Act. Furthermore, MPSS has only received a commitment regarding orders for nursing services for a maximum of three years. The CCAC has the sole discretion to decide whether to continue the contract from one year to the next in each of the three years. Although the CCAC verbally informed MPSS that it would give it 98% of the nursing services, it has not committed in the contract to do so, so it may at any time decide not to make referrals to MPSS if it is in any way dissatisfied with the company’s services.

49It is in light of the jurisprudence outlined above and for the reasons already given earlier that the Board finds that there has not been a transfer of a part of a business such that it would constitute a sale of a business within the meaning of the Act. The CCAC has got out of the business of providing nursing services directly and has, in accordance with its mandate, subcontracted with MPSS for the provision of that work for up to three years. Nothing other than the work has moved to MPSS, which in any event was a going concern before the CCAC awarded it the contract in 1999.

50In light of the Board’s finding regarding the sale of business aspect of this case it is unnecessary to decide the two remaining issues. These applications are hereby dismissed.

“Gail Misra”

for the Board