CITATION: Board of Health for Simcoe Muskoka District Health Unit v. Ontario Nurses Association, 2011 ONSC 4045
COURT FILE NO.: 84/10
DATE: 20110707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON and low JJ.
B E T W E E N:
THE BOARD OF HEALTH FOR THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT
Applicant
- and -
ONTARIO NURSES ASSOCIATION, RICK McDOWELL, LARRY ROBBINS and MORRIE ZUCKER
Respondents
Kevin D. McNeil, for the Applicant
Elizabeth McIntyre and Stephen Moreau, for the Respondent Ontario Nurses Association
HEARD AT TORONTO: May 27, 2011
Swinton J.:
Overview
[1] The Board of Health for the Simcoe Muskoka District Health Unit (“the Employer”) has brought an application for judicial review seeking to quash an arbitration award dated December 5, 2009. The majority of the tripartite board held that supervisors employed by the Employer fall within the collective agreement’s recognition clause and are included in the bargaining unit.
[2] The Employer argues that the process followed by the chair of the board in drafting his reasons violated the principles of natural justice, and the majority also reached an unreasonable conclusion.
[3] For the reasons that follow, I would dismiss the application.
Background Facts
[4] The grievance centred on the interpretation of Article 2, the recognition clause, found in the collective agreement between the Employer and the respondent Ontario Nurses Association (“the Union”). It reads:
The Employer recognizes the Association as the exclusive bargaining agent for all registered nurses and graduate nurses employed by the Employer save and except Program Managers and persons above this classification.
[5] Around 2005, the Employer decided to increase its complement of supervisors. According to one witness for the Employer, the goal was to lighten the administrative load on Program Managers by identifying a position below that of Program Manager, whose incumbents would assume functions delegated by Program Managers. The Employer determined that there were “optical”, political and budgetary factors militating against increasing the number of Program Managers at the same wage (Reasons, paras. 51-52). Accordingly, the Employer authorized the creation of a subordinate position, the supervisor.
[6] At the time of the arbitration hearing, the Employer employed eight supervisors, who were all registered nurses. They were paid $3 less per hour than the Program Managers to whom they formally reported.
The Arbitration Award
[7] The Union brought a grievance to determine whether the supervisors were members of the bargaining unit. The arbitration board (“the Board”) held seven days of hearings between December 2007 and December 2008.
[8] A majority of the Board looked to the plain meaning of Article 2, which excluded Program Managers and those higher in the organizational hierarchy. Reference was made, as well, to other parts of the collective agreement. The majority concluded that the recognition clause established the existing Program Manager classification as the “cut off point” for bargaining unit membership, stating (at para. 150):
… we see nothing in the evidence before us that supports any shared intention (or any implicit agreement) that there will be any additional classification-wide exclusions from the bargaining unit at the “Program Manager” level - let alone some new excluded classifications below that level. Nor do we think that such intention can be gleaned from the words of Article 2, when read in contractual context. We see nothing to support the inferential addition of the words "or Supervisor" after the words "Program Manager". On the contrary, the wording of Article 2 and the wording of the rest of the agreement, both tend to confirm that the only classification exclusion that the parties had in mind was that of the “Program Managers” - which was the cut-off classification in existence when the wording of Article 2 was agreed to, and is a classification that remains in existence today.
[9] Supervisors were found not to be functionally equivalent to Program Managers and, indeed, the Board concluded that the Employer intended them to be lower in the hierarchy than Program Managers (Reasons, at paras. 165, 167 and 169). Therefore, the Board held that the supervisor classification is within the bargaining unit.
[10] The majority also considered and rejected the argument that the supervisors exercised managerial functions within the meaning of s.1(3) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A and, therefore, the parties must have intended to exclude them from the bargaining unit. The majority stated (Reasons, at para. 184):
The incumbents are simply not so clearly “managerial” as to warrant that conclusion as a matter of interpretation – that is: that the Union must have “agreed” to the exclusion of the whole classification of individuals doing the things that these individuals do, when situated in the hierarchy, “below” the level of Program Managers.
[11] The process by which the majority arrived at its conclusion was contentious. The board members did not meet at the end of the last day of hearing to discuss the decision, as the chair indicated that he wanted time to reflect on the evidence and the case law. The process was then delayed because of health problems in the chair’s family.
[12] In July 2009, the chair sent an email to the other two board members labeled “Muskoka FinalJuly3.doc” that attached a draft decision. At the end of the draft, the signature page indicated the Employer nominee was dissenting.
[13] The Employer nominee, Morrie Zucker, sent dissenting reasons in October, 2009, some three months later. In them, he took issue with the process, indicating that there had been a clear indication by himself and the Union nominee that they wished to have input prior to the preparation of a draft decision. He stated that the chair “seemingly agreed to this and it was certainly my understanding and expectation and, I believe, the Union nominee’s understanding, that another meeting between panel members would be convened, whether in person or by telephone, to discuss the evidence and the issues in the case, prior to a decision being rendered by the Chair” (Reasons, at para. 200).
[14] The chair then offered to convene a meeting to discuss the concerns of the Employer nominee. The offer was declined.
[15] The chair revised his reasons, adding an explanation about the process. He mentioned the family health problems, and stated that he had felt it appropriate, in the circumstances, to prepare a full draft decision as a proposed disposition of the case. In his words, “It was not understood that this (fairly common) approach should not be adopted” (Reasons, at para. 194).
[16] The award was released on December 5, 2009, and included short concurring reasons by the Union nominee, Larry Robbins. He took issue with the Employer nominee’s suggestion that the process had been unfair, stating that there had been “ample” opportunity for input into the final decision. He noted that the draft was sent in early July as an attachment to an email, in which the chair indicated that he was enclosing a proposed draft of the decision.
The Standard of Review
[17] Both parties agree that the standard of review is reasonableness with respect to the Board’s interpretation of the collective agreement.
[18] On the issue of natural justice, no assessment of the standard of review is necessary. It is the role of the reviewing court to determine whether the rules of procedural fairness have been respected in the circumstances (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10).
Analysis
Did the chair deny natural justice?
[19] The Employer submits that the failure of the chair to adhere to an agreed upon procedure is a jurisdictional error that justifies the quashing of the award. Alternatively, preventing the effective participation of a nominee in deliberations is contrary to the rules of natural justice.
[20] The Employer relies on an Alberta decision, United Nurses of Alberta (UNA), Local 1 v. Calgary General Hospital (1990), 1990 ABCA 336, 76 D.L.R. (4th) 287 (Alta. C.A.), aff’g (1989), 1989 3215 (AB KB), 63 D.L.R. (4th) 440 (Alta. Q.B.). In that case, the union nominee specifically asked to meet immediately following the hearing. The chair declined the request, but indicated that he would arrange such a meeting at a later date. When the chair had difficulty convening a meeting, he met with the management nominee and then prepared a draft award. He sent it to the union nominee and then met with her. He then issued the award, in which the union lost the grievance.
[21] The award was quashed on judicial review, and that decision was upheld on appeal. The Alberta Court of Appeal held that there had been an agreement among the board members to meet before an award was made. The failure of the chair and the management nominee to adhere to the agreed upon procedure led to an error in jurisdiction that justified quashing the award.
[22] The first issue to determine in the present application is whether there was an agreed procedure by this Board. In my view, the record does not establish that there was an agreement among the Board members that there would be a further meeting of the panel before a draft award was circulated. The chair indicated in his reasons that he did not understand a meeting was expected here, nor is this the invariable practice. As he put it (at para. 194 of the Reasons):
For family health reasons, the matter was not considered by the Chair for a number of months. In the circumstances, the Chair considered it appropriate to prepare a full Draft decision: summarizing the evidence, working through the parties’ arguments, and stating, with reasons, a proposed disposition of the case. It was not understood that this (fairly common) approach should not be adopted.
[23] At its highest, the record shows that the Employer nominee expected that there would be a further meeting, as he said in his dissent, “The Chair seemingly agreed to this [a further meeting] and it was certainly my understanding” that there would be another meeting.
[24] The Union nominee, in his concurring reasons, does not set out his understanding. However, he indicated that he was satisfied with the process and did not feel that there had been any impropriety. He noted that it was not unusual for the chair of a tripartite board to prepare a draft award for circulation, as the chair did in this case (Reasons, at para. 218).
[25] I note that at no point did the Employer nominee request a further meeting in the period prior to the circulation of the draft award by the chair.
[26] This case is distinguishable from United Nurses of Alberta. In the present case, the record does not establish that there was an agreement among the Board members that there would be a meeting of the panel before a draft award was circulated.
[27] In the alternative, the Employer argues that there was a denial of natural justice because there was no opportunity for meaningful input into deliberations on the part of its nominee. Counsel made reference to Service Employees International Union v. St. Andrew’s Residence, [1999] O.J. No. 5313, where the Divisional Court quashed an award in an interest arbitration on the grounds of reasonable apprehension of bias on the part of the chair. As well, the Court held that there was a denial of natural justice because the chair did not consult with the nominees or give them an opportunity for effective participation in the process (at para. 16).
[28] The present case is distinguishable from Service Employees. I do not accept the argument that there was no opportunity for participation because the draft sent by the chair had a file name that included “final” in it. Drafts are often saved as “final” drafts for reasons that do not imply the author is unwilling to consider suggestions for changes. It may well be that the word “final” in the present case was used to distinguish this final award from an earlier interim award which had been released November 19, 2007. In any event, the email that accompanied the draft indicated this was a draft decision for the nominees to comment on.
[29] The Employer nominee was given the opportunity to comment on the draft award that the chair drafted after he reviewed the evidence, the legal issues and the arguments of the parties. However, the Employer nominee chose not to engage in further discussion with the chair and Union nominee. There is nothing in the chair’s reasons that suggests he would not have been open to receiving and considering the Employer nominee’s input.
[30] In the circumstances, there was no denial of natural justice by the chair.
Was the majority decision unreasonable?
[31] The Employer argues that the decision was unreasonable, because the majority failed to consider the strongly worded management rights clause in the collective agreement. Found in Article 5, it states that the Employer can hire, classify and assign nurses unless those rights are “expressly modified by any other article in the collective agreement.” The Employer also submits that the chair asked the wrong question, looking at whether anything in the collective agreement permitted the employer to classify the supervisor positions in the Program Manager classification. Instead, he should have asked whether anything prevented the Employer from doing so. Finally, the Employer argued that the result was absurd, as it would allow a Union member to discipline another Union member and to participate in management-only meetings.
[32] It is true that the chair made no mention of the management rights clause, but it was reasonable for him to proceed in the way he did. The management rights clause applies except as expressly modified by another article of the collective agreement. Here, the recognition clause, Article 2, modifies the management rights clause.
[33] The Union did not take issue with the right of the Employer to create and classify positions. However, the outcome of this arbitration turned on the interpretation of the recognition clause – more precisely, the question whether the supervisor position was equivalent to the Program Manager position and, therefore, excluded from the bargaining unit.
[34] The Employer argued that the interpretation adopted leads to absurd results, because bargaining unit members will be involved in disciplinary decisions and management meetings. However, the majority of the Board found that the supervisors perform very little in the way of formal disciplinary responsibilities due to the collegial and professional nature of the workplace. They do not make the effective decision on discipline. Moreover, the Employer retains an unfettered right to control who attends management meetings.
[35] While the Employer suggested that “a number of his comments betray a one-sided and special solicitude for ONA”, I do not agree. The chair gave very detailed reasons, which set out the evidence presented by both sides, as well as their arguments.
[36] The majority’s reasons meet the requirements of justification, transparency and intelligibility. The result falls within a range of possible, acceptable outcomes, given the evidence before the arbitration board and the language of the collective agreement.
Conclusion
[37] For these reasons, the application for judicial review is dismissed. Costs to the Union are fixed in the amount of $5,000.00, the amount agreed upon by the parties.
Swinton J.
Aston J.
Low J.
Released: July , 2011
CITATION: Board of Health for Simcoe Muskoka District Health Unit v. Ontario Nurses Association, 2011 ONSC 4045
COURT FILE NO.: 84/10
DATE: 20110707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
aston, swinton and low, jj.
B E T W E E N:
THE BOARD OF HEALTH FOR THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT
Applicant
- and -
ONTARIO NURSES ASSOCIATION, RICK McDOWELL, LARRY ROBBINS and MORRIE ZUCKER
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: July , 2011