ONTARIO SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT

CITATION: Trillium Heath Partners v. Canadian Union of Public Employees, Local 5180, 2021 ONSC 1045

DIVISIONAL COURT FILE NO.: 467/20

DATE: 20210212

R. Smith, Lederer, Favreau JJ.

BETWEEN:

Trillium Health Partners Applicant

– and –

Canadian Union of Public Employees, Local 5180, and Arbitrator Christine Schmidt Respondents

COUNSEL: Amanda Hunter and Harriet Yiga, for the Applicant Mark Wright, Joshua Mandryk and Melanie Anderson, for the Respondent, CUPE Local 5180 No one appearing for the Arbitrator

HEARD: December 3, 2020

JUDGMENT

Lederer

Overview

[1] This is an application for judicial review. The Applicant, Trillium Health Partners, a hospital, seeks to quash and set aside the decision of an arbitrator. She overturned the decision of the hospital to assign one of its employees (the “grievor”) to a different work location in the face of concerns expressed by another of its employees (the “complainant”). There are two underlying values at stake. The grievor had assaulted the complainant. He had been disciplined and returned to work. He says his changed assignment is further discipline. It offends the principle of double jeopardy. The hospital sees this as an administrative decision. It was responding to its duty to protect its employees from workplace violence.[^1]

[2] The hospital is located in Mississauga. It operates at three main locations: the Queensway Health Centre, the Credit Valley Hospital and the Mississauga Hospital. The grievor is a full-time plumber employed in the facilities department. The complainant is a supervisor in the Medical Device Reprocessing Department. The grievor was assigned to the Queensway Health Centre but covered emergencies, vacation and overtime for other maintenance employees at the Mississauga Hospital. The complainant worked at all three sites on a rotating schedule. For the complainant, the Mississauga Hospital and Credit Valley Hospital are busy locations and Queensway Health Centre is not as demanding. It is a break from the workload at the other two locations and is preferred by those with her responsibilities.

[3] On July 29, 2019, the grievor, without provocation or consent, slapped the complainant on her bottom. This is described in the material as having been done “with force” after which the grievor walked away.[^2] The assault left a bruise on the complainant’s right buttock. The complainant reported the incident on July 31, 2019 and advised that the assault left her feeling humiliated, embarrassed and violated.[^3] Following an investigation, the hospital found that the incident had taken place as described by the complainant.[^4] On August 22, 2019 the hospital issued a 10-day suspension to the grievor for his misconduct.[^5] The grievor served his disciplinary suspension between August 22, 2019 and September 4, 2019 and returned to work on September 5, 2019. The union did not grieve this discipline.[^6] Since his return, the grievor has worked without incident.[^7]

[4] At a meeting on October 28, 2019, the complainant advised that she felt she was being “punished” by the restrictions placed on her. To separate her from the grievor, the Queensway Health Centre had been removed from her rotation. This meant that she was always working at the busier locations and was not afforded the same pause as provided to others, carrying out the same functions. She requested that she be returned to her regular scheduled rotation. This had the potential to bring her in contact with the grievor and was a concern for her and the hospital.[^8]

[5] In order to accommodate the complainant, the hospital sought the consent of the union to relocate the grievor. The union refused. It took the position that the grievor had been punished and would not agree to his being punished again.[^9] The grievor wanted to remain at the Queensway Health Centre. During December 2019 the hospital notified the union that it had decided to transfer the grievor from the Queensway Health Centre to the Credit Valley Hospital.[^10]

[6] It is the decision to transfer the grievor that was the subject of the arbitration.

[7] The issue confronted by the Arbitrator was the identification of the actual intention of the hospital in deciding to transfer the grievor. Which of the two values engaged was the decision based on? Was it driven by good management geared towards bona fide operational concerns (in this case providing a safe work place for its workers) or discipline that added to the punishment of the employee (was it double jeopardy)? The answer does not lie in the stated intention of the employer:

It should first be emphasized that the particular label attached by an employer to a decision is not determinative. Saying a transfer is not disciplinary does not make it so. Rather, there must be a thorough assessment of the proffered reasons for the decision and its true character must be discerned.[^11]

[8] As submitted by the Union, distinguishing between discipline and management rights is a highly context-specific, discretionary inquiry.[^12] The letter advising the grievor of the transfer refers to this as an “administrative decision” but it does this in the context of concern for the impact of the assault:

This is an administrative decision necessary to restore a safe workplace for the co-worker you assaulted on July 29, 2019.[^13]

[9] The letter was dated January 9, 2020. This was months after the grievor had served his suspension and returned to work. At the time the investigation was completed, the finding of the assault made and the penalty, that is the suspension, imposed, consideration was given to both the concerns and protection of the complainant. The hospital worked to ensure that the complainant was protected and her concerns met. To respond to the trauma of the experience a safety plan was prepared to address her fear of having any further encounters with the grievor. It dealt in detail with her movements into and through the workplace.[^14] In addition to the safety plan, her work schedule was changed to ensure that she remained separated from the grievor. She was not scheduled to work at the Queensway Health Centre because he was working there.[^15] What is plain is that at the time penalty for the assault was addressed, concern for the safety of the complainant was considered and taken into account:

In this case the Hospital was well aware of its obligations under the legislation and it had the information of the Complainant’s report when it considered its response to the investigation, which substantiated the Complainant’s allegation. Further, there can be no doubt that the Hospital contemplated the possibility of the complainant seeing the grievor at QHC given the expectations outlined in the disciplinary letter imposing the 10-day suspension.[^16]

[10] It was in this context that the letter informing the grievor of the transfer was delivered on January 9, 2020. Its impact went beyond advising of the transfer and relating it to the assault. The grievor was told that he would not be permitted to post or transfer to any position at any work location where the complainant was assigned “until further notice”. In addition, his work schedule was changed. At the Queensway Health Centre, the grievor had worked from 8:00 a.m. to 4:00 p.m. from Monday to Friday. At the Credit Valley Hospital, he was moved to a rotating schedule consisting of two shifts including 6:00 a.m. to 2:00 p.m. and from 1:00 p.m. to 9:00 p.m.[^17]

[11] From this, the Arbitrator determined:

The evidence in this case reveals that the Hospital had turned its mind to the issue of future possible contact between the Grievor and the Complainant and acted having regard to that consideration.[^18]

[12] In the sentences immediately preceding this conclusion the Arbitrator explains the substance of her decision:

It is beyond dispute that the Grievor’s transfer in 2020 “related back” to the incident on July 29, 2018. The incident is the reason for the transfer. The Hospital was intent on appeasing the Complainant’s understandable desire to not encounter the Grievor and her wanting to be scheduled at QHC because of the “break” associated with working there. The fact remains that when the Hospital disciplined the Grievor on August 22, 2019, it had finalized its investigation and considered and imposed expectations on the grievor vis-à-vis his interactions with other employees and the Complaint in particular. The Hospital wanted to revisit its decision after the Grievor had served his suspension for the incident on July 29, 2019.[^19]

[13] The Arbitrator found that:

… there can be no doubt that the transfer from a straight day shift at a hospital site located at the Queensway and the West Mall in Etobicoke to another one at Eglington Avenue and Erin Mills Parkway in Mississauga, where the Grievor was required to work shifts ending at 11:00 pm, had a penalizing effect on him, over and above the penalizing effect of the unpaid suspension.[^20]

[14] And concluded that:

The Grievor’s transfer offends the basic arbitral rule that an employer may not impose more than one penalty for the same offense.[^21]

[15] This was double jeopardy and the Arbitrator ordered that the grievor’s transfer was to be rescinded and that he was to resume his position at the Queensway Health Centre.

Standard of review

[16] The standard of review is reasonableness. The applicant (the hospital) submits it has not been met. The recent case of Canada (Minister of Citizenship and Immigration) v. Vavilov[^22] does not change the understanding of what constitutes a proper reasonableness review. The case clarifies rather than overhauls the standard. A reasonableness review must be “robust”.[^23] Decisions are to be both justifiable and justified.[^24] Reasons are to be internally coherent and shown to fall within the range of possible outcomes.[^25] The review is centred on the reasons and whether they justify the result.

Analysis

[17] The hospital contends that the reasons of the Arbitrator fail because they do not properly account for its obligation to protect the complainant. The Arbitrator began her assessment from the perspective of the grievor and never wavered from that concern or understanding of the issues at hand. As perceived by the hospital, the Arbitrator did not recognize its obligation to ensure the workplace is safe. It is said that the Arbitrator wrongly concluded that the transfer of the grievor was an attempt to “revisit” the discipline it had issued but did not analyze or consider the hospital’s actions were in response to its continuing duties to the complainant.[^26] This is wrong. It does not reflect what the Arbitrator did. She analyzed the facts and applied the relevant legal principles. The grievor was punished. The hospital was obliged, by the Occupational Health & Safety Act[^27], to provide a safe workplace. The concerns and circumstances of the complainant were considered. A plan to protect her was put in place. Weeks later the complainant pointed to a further impact on her. She was denied the respite that came with working at the Queensway Health Centre. The hospital looked at the situation again. It decided to transfer the grievor. In doing so it set to the side a long-established principle: punishing someone twice for the same wrong is not permitted. Not only was the grievor suspended for ten days, his working conditions were changed. He had to work different hours, at a different location and was unable to post for a transfer.

[18] The hospital argued that it has the authority to transfer employees for legitimate business reasons. In making this submission it relied on Scarborough Health Network v. Canadian Union of Public Employees, Local 5852.[^28] This followed out of the merger of three hospital sites. Some measure of mobility was inherent in the purpose of the merger. Letters were written directing certain employees to work at a new location. The union objected. There was an arbitration. The position of the hospital allowing for unilateral movement of employees was accepted. The hospital had the right to unilaterally move employees “subject to reasonable limits”. The case was relied on as standing for the proposition that moving employees to a different site can be reasonable. This may well be correct but it has nothing to do with this case. A broader view demonstrates that this circumstance does not deal with a merger but with discipline, its limits and impact on both the grievor and the complainant.

[19] The Union referred to, among other cases, St. Clair Catholic District School Board v. O.E.C.T.A. (Odrcich)[^29] and Greater Essex County District School Board v. E.F.T.O.[^30] Both cases involve the transfer of teachers. They involved discipline but not the imposition of additional discipline, after the fact. Double jeopardy was not raised.

[20] In Calgary (City) v. Canadian Union of Public Employees Local 37[^31] the grievor had grabbed and squeezed the breast of the complainant without her consent. The City (the employer) terminated the grievor. There was an arbitration which overturned the termination and substituted a lengthy suspension. The City applied for judicial review. The decision of the Arbitrator was upheld. There was an appeal. The appeal was allowed. The order was quashed and the matter remitted to another arbitrator. The case speaks to how serious a wrong sexual assault is. The Arbitrator found that the assault was at the “lower end of sexual harassment”. The Court of Appeal did not agree:

There can be no doubt that the grabbing and squeezing of another’s breast without consent is sexual assault. Sexual assault, by its very definition, is serious misconduct.[^32]

[21] There was reference to legislation that responds to these concerns but for the purpose of confirming our changing understanding, not for the purpose of demonstrating that the directives found in the legislation should override legal protections provided to others such that a decision to the contrary would be unreasonable:

A finding that sexual assault is serious misconduct is consistent with the growing concerns for safety and respect in the workplace and other policies and legislation whose goal it is to protect vulnerable groups, and it will assist employers and unions in fighting against the prevalence and damaging effect of this intolerable conduct. There is absolutely no place in the workplace for touching, rubbing, forced kissing, fondling or any other physical contact of a sexual nature where one party does not consent. It is objectively clear that sexual assault is wrong and acknowledging that sexual assault is serious misconduct sends a strong message to all employees about societal values and acceptable workplace behaviour.[^33]

[22] The question concerned an understanding of the nature and seriousness of sexual assault and the penalty, that in the circumstance, was appropriate. There was no issue of imposing an additional penalty to add to what had already been imposed and acted on. Attaching the grievor with double jeopardy did not arise.

[23] The hospital sought to demonstrate that the changed working conditions of the grievor, following the transfer, were insignificant: same job, same pay at a location that was not far away although with different hours. The hospital brought to the Arbitrator’s attention Alberta (Department of Justice) v. A.U.P.E.[^34] In that case the grievor had a confrontation with a supervisor over his annual appraisal. He was given a letter of reprimand and a second letter transferring him from his position as a probationary officer in Edmonton to a jail guard position in a correctional institute in Fort Saskatchewan. While his new position was at the same classification, it was found to be a wholly different job than the one he trained for and had worked at. The positions were not reasonably comparable. The two letters were not separated in time. They bore the same date. The transfer was disciplinary. The issue of double jeopardy did not arise. As discipline, the transfer was found to be unsatisfactory because it was permanent and did not address, in an appropriate way, the broken relationship between the grievor and his supervisor.

[24] Interestingly, the factum filed on behalf of the hospital makes no reference to the case of Brock University v. Brock University Faculty Association.[^35] It was considered by the Arbitrator. It speaks directly to the broader view. A professor was disciplined in March 2016, following an investigation into sexual harassment that was alleged to have taken place on October 21, 2014. Following the imposition of discipline, which included a suspension without pay until June 30, 2016, the professor had been on an enforced leave of absence followed by a prearranged sabbatical. His first availability to return to the classroom was September 2018. Within the university community, concerns were expressed about that return. The concerns were related to the finding of sexual harassment. A decision was taken to cancel his teaching assignments. He grieved. There was an arbitration. The grievance was “upheld”.

[25] The issue was whether the cancelling of his teaching represented double jeopardy in the face of the university’s position that the decision was taken under an authority to alter workload:

[A] Dean, in consultation with the faculty member, may decide on occasion that there are good reasons for altering the normal proportionate distribution of workload, among teaching, research/ scholarly/ creative activities and service.[^36]

[26] The Arbitrator discussed double jeopardy in the labour context:

The case law emphatically stipulates that the requirement for "just cause" does not allow an employer to discipline twice for the same offence (see re: ONA and Thunder Bay Regional Health Services (supra), Renfrew Country Catholic District School Board (supra) and leading cases on Labour Arbitration (2nd) Lancaster House, Section 10.5 page 10.30 to 10.33). The purpose of the double jeopardy prohibition is to cause employers, in the interests of fairness and finality, to do a full investigation before acting. If it were otherwise, employers might be tempted to act precipitously and affected employees would be in an ongoing state of uncertainty, neither of which would be in the best interest of sound labour relations.[^37]

[27] Not unlike the situation in the case being decided, a determination had to be made:

…as to whether the University acted in the exercise of its legitimate authority under article 24.03(d) or whether it acted to discipline Professor Schimmelpenninck a second time for the same offence, i.e. the sexual harassment in which he engaged on October 21, 2014.[^38]

[28] The Arbitrator concluded:

Absent any additional misconduct (of which there has been none that we were made aware of), the University could not in 2018 impose additional discipline in response to Professor Schimmelpenninck's 2014 misconduct in respect of which it had already investigated and imposed substantial discipline.[^39]

[29] The Brock University case engages the same issues as this one.

[30] The position taken on behalf of the hospital fails to grasp the fundamental understanding of the nature and parameters of a reasonableness review. It proposes that through the directives in the legislation the concerns of the complainant are determinative regardless of the other considerations at issue. At its root the request is that this Court make a different decision, one the hospital believes should have been made. It is not that the decision falls outside the reasonable outcomes; it is that that, as the hospital sees it there is only one such outcome. The Arbitrator was aware of and considered the responsibility of the hospital to the complainant but she found the transfer and its impact to be further punishment. Her decision reversed the transfer.

[31] There is no suggestion in the decision of the Arbitrator that the obligation of the hospital to keep the complainant safe should not be complied with or acted on. The finding of the Arbitrator was that transferring the grievor, at least at the time that decision was taken, was not the right way to do it:

That is not to say that an employer’s transfer of a perpetrator may well be appropriate when coupled with the suspension to protect or support what has been assessed as a legitimate concern about the complainant who has been subject to workplace harassment or violence. The Union acknowledged as much in argument.[^40]

[32] The decision made was reasonable. It reveals a line of analysis that leads reasonably from the evidence the Arbitrator had to the conclusion she arrived at.[^41] It is all of justified, transparent and intelligible.

[33] However, there is more to be said. It could be that the hospital made a mistake. It should have foreseen the problem that the complainant subsequently raised and considered it at the time it determined the punishment to be imposed. Hindsight being uncertain, it is not possible to know whether in that circumstance the hospital would have determined to transfer the grievor or found some other solution. Calling this a mistake is too easy; the issue is more subtle than that. We live in a time when social mores and values are constantly evolving. This is no more so than with respect to sexual harassment, most particularly the treatment of women in the workplace and beyond.

[34] What is important is that employers and others learn as our understanding of the nature and breadth of the impact of these unfortunate events grows. In a vernacular understood by those who play the game of chess, we need to work to “see the whole board”, that is to know every step, appreciate every effect and do our best to see every eventuality. That the hospital could have but did not do this is suggested by the cases reviewed above.

[35] Stepping back, understanding the issues more broadly (seeing the whole board) would have allowed the hospital to consider and balance the competing values of meeting its obligation to the complainant and of protecting the grievor (also an employee) from double jeopardy. However, the hospital cannot after the fact, change the penalty imposed on the grievor to meet its obligations to the complainant. The hospital will have to find another way to meet these obligations.

Conclusion

[36] On this basis the application is dismissed.

[37] As agreed by the parties, costs to the Respondents in the amount of $7,500.

Lederer, J.

I agree _______________________________

R. Smith, J.

I agree _______________________________

Favreau, J.

Released: February 12, 2021

CITATION: Trillium Heath Partners v. Canadian Union of Public Employees, Local 5180, 2021 ONSC 1045

DIVISIONAL COURT FILE NO.: 467/20

DATE: 20210212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer, Favreau JJ.

BETWEEN:

Trillium Health Partners Applicant

– and –

Canadian Union of Public Employees, Local 5180, and Arbitrator Christine Schmidt Respondents

REASONS FOR JUDGMENT

Released: February 12, 2021

[^1]: The Occupational Health & Safety Amendment Act (Violence and Harassment in the Workplace), colloquially Built 168 came into effect on June 15, 2010. Under this amendment to the Occupational Health & Safety Act (R.S.O. 1990, c. 0.1), it is the employer's responsibility to ensure staff feel safe and work in a healthy environment.

[^2]: Investigation Report, August 2019 (4.0 The Allegations (p. 4), 6.0 Analysis, Allegation (p. 4), Complainant (p.5) and Witness (p. 6) and Findings of Fact p. 7)).

[^3]: Incident Report, July 31, 2019 (“Type of Injury” and “Brief Factual Description”).

[^4]: Agreed Statement of Facts, para. 8 and Letter to K. Silva re: Investigation, August 22, 2019.

[^5]: Ibid, para. 9 and Letter to K. Silva re: Suspension, August 22, 2019.

[^6]: Ibid, para. 11.

[^7]: Ibid, para. 13.

[^8]: Ibid, para. 16 and Notes of A. Baruzzo, October 28, 2019: “I can’t be there while he is there.”

[^9]: Ibid, para. 17.

[^10]: Ibid, para. 19 and Letter to K. Silva, January 9, 2020.

[^11]: Greater Essex County District School Board v. E.F.T.O., 2011 CarswellOnt 4165, [2011] O.L.A.A. No. 259, 106 C.L.A.S. 70, 209 L.A.C. (4th) 119 at para. 171.

[^12]: Factum of the Respondent at para. 42 and Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at paras. 42-43.

[^13]: Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at para.7 quoting Letter to K. Silva, January 9, 2020.

[^14]: Safety Plan dated September 16, 2019, for example: It considered where she was to park (near the front of the parking garage), in the absence of other employees she was to call for an escort from her car, her schedule was to be provided to safety and security personnel so there would be increased “rounding” when she was working, she was to use a “buddy” when leaving the department for breaks, she was to purchase a personal alarm, she was not to take a back stair well or elevator on her own and if approached by the grievor to go to the nearest populated area or call security.

[^15]: Agreed Statement of Facts, para. 14 and Safety Plan dated September 16, 2019.

[^16]: Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at para. 21.

[^17]: Ibid at para.7 quoting Letter to K. Silva, January 9, 2020.

[^18]: Ibid at para. 34.

[^19]: Ibid at para. 34.

[^20]: Ibid at para. 4: As pointed out in para. 64 of the responding factum, the reference to 11:00 p.m. is an error. It should say 9:00 p.m.

[^21]: Ibid at para. 46.

[^22]: 2019 SCC 65, 2019 SCC 65, 441 DLR (4th) 1, 312 ACWS (3d) 460, 59 Admin LR (6th) 1..

[^23]: Canada (Minister of Citizenship and Immigration) v. Vavilov, ibid at para. 13..

[^24]: Ibid at para. 86.

[^25]: Ibid at para. 85, 86, paras. 99-104 and para. 304.

[^26]: Factum of the Appellant, para. 33.

[^27]: See fn. 1 herein.

[^28]: 2020 268 referred to in Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at para. 38 and 39.

[^29]: (1999) 1999 35973 (ON LA), 86 L.A.C. (4th) 251 (Picher).

[^30]: (2011) 209 L.A.C. (4th) 119 (Tacon).

[^31]: 2019 ABCA 388.

[^32]: Ibid at para. 11.

[^33]: Ibid at para. 52.

[^34]: 2003 CarswellAlta 2418, [2003] A.G.A.A. No. 52, 74 C.L.A.S. 144268 referred to in Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at paras. 23 and 24.

[^35]: 2018 125959 (ON LA) (Burkett).

[^36]: Ibid at 4th paragraph under the heading “Decision” (Article 24.03(d)) of the Collective Agreement.

[^37]: Ibid at 3rd paragraph under the heading “Decision”.

[^38]: Ibid at 4th paragraph under the heading “Decision”.

[^39]: Ibid at 6th paragraph under the heading “Decision”.

[^40]: Decision of the Arbitrator (Trillium Health Partners v. C.U.P.E., Local 1580) at para. 21 and see Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Brown), Re, 2014 CarswellOnt 9550 (Briggs).

[^41]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 22) at para. 102 referring to Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 SCR 247 at para. 55 and Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 56.