Citation and Court Information
CITATION: Board of Health for the Simcoe Muskoka District v. Ontario Nurses Assn., 2011 ONSC 283
DIVISIONAL COURT FILE NO.: 84/10
DATE: 20110112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND HERMAN JJ.
Parties
BETWEEN:
THE BOARD OF HEALTH FOR THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT Responding Party (Applicant in the Application)
– and –
ONTARIO NURSES ASSOCIATION Moving Party (Respondent in the Application)
-and –
RICK MACDOWELL, LARRY ROBBINS and MORRIE ZUCKER Respondents
Counsel and Hearing
Kevin D. MacNeill, for the Responding Party, Applicant in the Application
Stephen J. Moreau, for the Moving Party, Ontario Nurses Association
HEARD at Toronto: January 12, 2011
Oral Reasons for Judgment
JENNINGS J. (ORALLY)
[1] The Board of Health has brought an application for judicial review, claiming in part that there was a breach of natural justice in the hearing before the Tripartite Arbitration Board because no opportunity was given to discuss the evidence and the proposed result before the Chair issued a proposed decision.
[2] In its judicial review application record, Ontario Nurses Association (“ONA”) sought to introduce an affidavit exhibiting correspondence between the chair and the Employers’ nominee that was exchanged some months following the circulation of the proposed decision.
[3] On the application of the Board of Health, Molloy J. struck out the affidavit and directed that ONA’s factum be amended to delete any reference to it.
[4] ONA now asks that this panel review the decision of Molloy J. and set it aside.
[5] On the hearing before us, it was not in dispute that:
(a) There was no discussion amongst the Arbitration Board members prior to the circulation of the proposed decision on July 12, 2009.
(b) The Employer’s nominee in his proposed dissent delivered in October 2009, raised the issue of denial of natural justice.
(c) On November 4, 2009, the Chair wrote to the nominee offering to convene a meeting to discuss his concerns about the proposed decision.
(d) The nominee declined the invitation to meet or discuss.
(e) The Chair amended the proposed reasons to respond to the claims of denial raised in the dissent.
(f) The Union nominee, in concurring reasons, agreed with the Chair and took the position that there was no denial of natural justice because there was ample opportunity given for input into the final decision.
[6] Counsel for the Board of Health conceded on the hearing before us that its position on denial of natural justice was founded on events taking place prior to the circulation of the proposed decision.
[7] Molloy J. held, in essence, that the record contained all of the information required to present and oppose the judicial review application. She held that the exchange of correspondence, extending and rejecting an invitation to meet and discuss the matter prior to the release of the final decision, was unnecessary, and on that account did not meet the Keepright test for admissibility.
[8] The ONA only wants to introduce the correspondence to establish the offer to meet and its rejection. This is already addressed in paragraph 196 of the Chair’s reasons and is not disputed by the Board of Health. We therefore find that Molloy J. was correct in her decision.
[9] The motion is dismissed. Costs to the respondent fixed as agreed at $5,000.00.
JENNINGS J.
ASTON J.
HERMAN J.
Date of Reasons for Judgment: January 12, 2011
Date of Release: January 18, 2011
CITATION: Board of Health for the Simcoe Muskoka District v. Ontario Nurses Assn., 2011 ONSC 283
DIVISIONAL COURT FILE NO.: 84/10
DATE: 20110112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND HERMAN JJ.
BETWEEN:
THE BOARD OF HEALTH FOR THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT Responding Party (Applicant in the Application)
– and –
ONTARIO NURSES ASSOCIATION Moving Party (Respondent in the Application)
-and –
RICK MACDOWELL, LARRY ROBBINS and MORRIE ZUCKER Respondents
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 12, 2011
Date of Release: January 18, 2011