The Corporation of the City of Windsor v. Ontario Nurses' Association

[Indexed as: Windsor (City) v. Ontario Nurses' Association]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Pierce, Ducharme and Tausendfreund JJ.

November 27, 2019

148 O.R. (3d) 701 | 2019 ONSC 6883

Case Summary

Administrative law — Boards and tribunals — Functus officio — Judicial review — Board of Arbitration issuing award increasing vacation entitlement of full-time nurses — Supplementary award indicating that failure to address vacation entitlement of part-time nurses was an oversight — Supplementary award granting improved vacation benefits for part-time nurses — Board reasonably concluding that it was not functus.

Administrative law — Judicial review — Standard of review — Reasonableness — Board of Arbitration issuing award increasing vacation entitlement of full-time nurses — Supplementary award indicating that failure to address vacation entitlement of part-time nurses was an oversight — Supplementary award granting improved vacation benefits for part-time nurses — Board's clarification of its own intent was a question of mixed fact and law attracting reasonableness standard — Board reasonably concluding that it was not functus.

Employment — Labour relations — Collective agreement — Arbitration — Functus officio — Judicial review — Board of Arbitration issuing award increasing vacation entitlement of full-time nurses — Supplementary award indicating that failure to address vacation entitlement of part-time nurses was an oversight — Supplementary award granting improved vacation benefits for part-time nurses — Board reasonably concluding that it was not functus.

The City of Windsor and the Ontario Nurses' Association entered into arbitration when negotiations to conclude a collective agreement with nurses at a long-term care home failed. The Board of Arbitration issued an award that increased the vacation entitlement for full-time nurses but was silent as to increased vacation benefits for part-time nurses. When the Nurses' Association sought clarification, a majority of the board indicated that the failure to address part-time vacation entitlements was an oversight. The board released a supplementary award granting improved vacation benefits for part-time nurses. The dissenting member found that the board was functus officio. The city did not execute the collective agreement until ordered to do so by the board, two months after the supplementary award. The city applied for judicial review of the supplementary award.

Held, the application should be dismissed.

The board's clarification of its own intent in the supplementary award was a question of mixed fact and law for which the standard of review was reasonableness.

The doctrine of functus officio did not apply for two reasons. Firstly, the chair of the Board of Arbitration characterized the failure to deal with the issue as a slip or an oversight and expressly stated that the board's intention was to extend the improved vacation entitlement to both categories of nurses. That oversight created an error in expressing the manifest intention of the board. Secondly, the [page702] first award provided that the board remained seized of the implementation of the award until a collective agreement came into effect. The collective agreement was executed after the supplementary award was issued. Consequently, the board came to a reasonable conclusion in deciding that it was not functus.

Cases referred to

Capital District Health Authority v. Nova Scotia Government and General Employees Union, [2006] N.S.J. No. 281, 2006 NSCA 85, 271 D.L.R. (4th) 156, 246 N.S.R. (2d) 104, 43 Admin. L.R. (4th) 300, 51 C.C.E.L. (3d) 96, 149 A.C.W.S. (3d) 1030, 153 L.A.C. (4th) 1; Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102; Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186

Statutes referred to

Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14, s. 9(2)

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1)

APPLICATION for judicial review of a supplementary award of a Board of Arbitration.

M. Nazarewich, for applicant.

D. Bisnar and D. Bullen, for respondent.

The judgment of the court was delivered by

PIERCE J.: —

Introduction

[1] This is an application by the Corporation of the City of Windsor for judicial review of the supplementary award granted by the Board of Arbitration on August 20, 2018. The applicant seeks orders

(1) declaring that the Board of Arbitration lacked jurisdiction to reopen its previous decision; and

(2) severing, quashing, and setting aside the supplementary award dated August 20, 2018 dealing with improved vacation benefits for certain members of the bargaining unit.

[2] The City of Windsor and the Ontario Nurses' Association entered into arbitration when negotiations to conclude a collective agreement with nurses at a long-term care home failed. The arbitration was governed by the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14.

[3] On February 5, 2018, the Board of Arbitration issued an award that, among other things, increased the vacation entitlement for full-time nurses. However, the award was silent about whether vacation benefits for part-time nurses would also be increased. The [page703] applicant argues that the union's request for an increase to vacation entitlement for part-time nurses was consequently dismissed.

[4] After the Board of Arbitration released its decision, the respondent sought clarification of the decision relating to vacation entitlements for part-time nurses. On August 20, 2018, the Board of Arbitration released a supplementary award, granting improved vacation benefits for part-time nurses.

[5] In its supplementary decision, the majority of the Board indicated that its failure to address part-time vacation entitlements was an oversight. The Board indicated that the omission was a slip that required correction. It also rejected the applicant's position that the Board of Arbitration was functus officio and therefore unable to make "changes, corrections or clarifications" to its original award. One member of the board issued a dissenting opinion, finding that the board was functus.

[6] The City of Windsor did not accept the board's supplementary order and refused to execute the collective agreement incorporating the vacation benefits for part-time nurses. On October 22, 2018, the board ordered Windsor to execute the collective agreement, which was done two days later.

Jurisdiction

[7] The jurisdiction of the court to hear applications for judicial review is found in ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Standard of Review

[8] The applicant submits that the determination of whether the board was functus officio in releasing its supplementary award is a question of jurisdiction which should be reviewed on a standard of correctness.

[9] The respondent submits that the standard of reasonableness applies because the question of the board's intention is a question of mixed fact and law.

[10] We agree with the respondent's position. In our view, the board's clarification of its own intent in the supplementary award is a question of mixed fact and law for which the standard of review is reasonableness. See Capital District Health Authority v. Nova Scotia Government and General Employees Union, [2006] N.S.J. No. 281, 2006 NSCA 85, para. 23 ("N.S.G.E.U.").

The Doctrine of Functus Officio

[11] The doctrine of functus officio exists in order to import finality into legal proceedings. In general, a tribunal cannot revisit [page704] a case it has already decided. However, the doctrine is not absolute. It is subject to exceptions.

[12] Some of these exceptions are identified in Chandler v. Assn. of Architects (Alberta), 1989 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102. For example, the court cites the ability of an adjudicator to "correct clerical mistakes or errors arising from an accidental slip or omission": para. 22. It also recognizes statutory provisions that permit a tribunal to reconsider its decision: para. 76.

[13] The court in Chandler also adopted the exceptions set out in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186, [1934] S.C.J. No. 6, in which the court realized "some matter which should have been dealt with in the reasons has been overlooked" as an exception to the doctrine of functus officio:para. 76.

[14] Furthermore, the Chandler court recognized the ability of a court to reopen a decision "where there was an error in expressing the manifest intention of the court": para. 75. This exception to the functus officio rule was applied in N.S.G.E.U., at para. 41.

[15] It is our view that the doctrine of functus officio does not apply to the circumstances of this case for two reasons.

[16] First, the chair of the Board of Arbitration characterized its failure to deal with the vacation entitlement of the part-time nurses as a slip or an oversight. He stated:

In fact, we had no such intention. At no stage did we discuss distinguishing the vacation entitlement of the full-time nurses vis-à-vis the part-time nurses. Our failing to award the same entitlement to the part-time nurses was a pure oversight. We intended the equivalent improvement to apply to both categories of nurses.

We conclude that the oversight created an error in expressing the manifest intention of the board.

[17] Second, in keeping with s. 9(2) of the Hospital Labour Disputes Arbitration Act, the Board of Arbitration's first award provides that the board remains seized of the implementation of the award until a collective agreement is in effect between the parties. The collective agreement was executed after the supplementary award was issued.

[18] It follows that the board's determination that it was not functus officio when it issued its supplementary award was reasonable.

Conclusion

[19] The application for judicial review is dismissed. The respondent, Ontario Nurses' Association, shall have its costs fixed at $10,000, inclusive.

Application dismissed.

End of Document