Court File and Parties
CITATION: OPSEU, Local 329 v. Waypoint Centre for Mental Health Care, 2022 ONSC 1533
COURT FILE NO.: 292/20
DATE: 20220314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, J.A. RAMSAY AND NISHIKAWA JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
WAYPOINT CENTRE FOR MENTAL HEALTH CARE
Respondent
David Wright, for the Applicant
Frank Cesario and Danika Winkel, for the Respondent
HEARD at Toronto: March 9, 2022 by videoconference
Reasons for Decision
J.A. Ramsay J.
[1] This is an application for judicial review of the decision of an arbitrator under the Labour Relations Act. The decision is published as Ontario Public Service Employees Union, Local 329 v Waypoint Centre for Mental Health Care. The standard of review is reasonableness.
[2] Waypoint Centre is a mental health hospital. OPSEU, Local 329 is the bargaining agent. Under the collective agreement, Waypoint pays its employees time and a half for work in excess of 37.5 hours a week.
[3] There are two ways to award overtime pay:
a. For work done in excess of the 37.5 hours scheduled for an employee in the relevant week;
b. For work done in excess of 37.5 hours actually worked that week.
[4] For example, in the first formula, assuming a 12-hour day, if an employee is scheduled to work Monday to Thursday, 8 to 8, he gets time and a half for working Friday even if he called in sick on Thursday. In the second formula, he does not.
[5] Waypoint’s practice was to compensate full time employees based on the first formula and part-time employees based on the second. Management decided to begin compensating everyone on the second formula. The union grieved.
[6] The relevant portions of the contract provide:
6.01 The Union recognizes that the management of the operations and the direction of the employees are fixed exclusively with the Hospital and shall remain solely with the Hospital and without restricting the generality of the foregoing it is the exclusive function of the Hospital to: …
(d) determine all work schedules, the kind and location of equipment to be used, methods to be used, the location and number of employees required from time to time, the services to be performed, the standards of performance of all employees, work assignments, the hours of work and all other rights and responsibilities of management not specifically modified elsewhere in this Agreement; …
25.01 (a) Hours of Work
The following provision designating regular hours on a daily shift and regular daily shifts over the schedule determined by the Hospital shall not be construed to be a guarantee of the hours of work to be performed on each shift or during each shift schedule.
Subject to the development of a compressed work week agreement (Article 26):
The normal work day shall be composed of seven and one-half (7 1/2) hours, up to eleven and one quarter (11 1/4) hours, exclusive of mealtimes and the normal work week shall average thirty-seven and one-half hours (37 1/2) per week over the scheduling period determined by the Hospital. It is understood that at the change of shift there will normally be additional time required for reporting which shall be considered to be part of the normal daily shift, for a period of up to fifteen (15) minutes duration. Should the reporting time extend beyond fifteen (15) minutes, however, the entire period shall be considered overtime for the purposes of payment under Article 25.03.
(b) While recognizing the operational requirement to preschedule four (4) hour blocks, the Hospital shall endeavor to pre-schedule staff for hours consistent with the standard or extended work day (as defined in Article 25.01 (a). . . .
25.03 Overtime
25.03.1 Overtime Definition
(a) Overtime shall be defined as being all hours worked in excess of the normal or standard work day or in excess of the normal or standard work week. The overtime rate shall be one- and-one-half (1 ½) times the regular straight time hourly rate of pay calculated to the nearest half hour. Where the Hospital and the Union agree, subject to the approval of the Ministry of Labour, other arrangements regarding hours of work may be entered into between parties on a local level with respect to shifts beyond the normal standard work day.
In the assignment of overtime, the Hospital agrees to develop methods of distributing overtime that are fair and equitable after having ensured that all its operational requirements are met. Straight time hours will be offered to Part-time and casual staff before full-time employees shall be offered overtime. Full time employees will be offered overtime prior to the offer of overtime to the part-time or casual employees. (Emphasis supplied.)
[7] The arbitrator held that the words of the contract evidenced the intent of the parties to agree to the compensate overtime based on hours actually worked. The heart of his reasons:
If it was the intention of the parties to pay overtime for all hours worked outside the employee’s normally scheduled shift (work day) or shift schedule (work week), then they would have stated so in much clearer language. Instead, the overtime language in Article 25.03.1 is tied to the definition of normal hours of work in a day and a normal work week in Article 25.01 (a). The language cannot be read in isolation. Management has the right to determine all work schedules and the designation of regular hours and regular daily shifts over the schedule determined by the Hospital shall not be construed to be a guarantee of the hours of work to be performed on each shift or during each shift schedule. The language applies to all employees, full-time, part-time and casual employees. The language must be interpreted as a whole and in the context of being applied consistently to all employees, unless specifically stated otherwise.
[8] The union concedes that the arbitrator’s decision is logical and transparent but argues that the decision was unjustified, and therefore unreasonable, for two reasons:
a. The arbitrator failed to consider the second paragraph of Article 25.01(a), in which the parties link overtime to actual hours worked in the context of overtime when the 15-minute shift change reporting time exceeds 15 minutes. If they expressly link overtime to hours worked in that context, it is submitted, they must have meant not to link it in other contexts.
b. The arbitrator erred in the basis upon which he distinguished the decision of Arbitrator Kaplan in Ottawa Hospital v. CUPE, Local 4000, 2011 CarswellOnt 5937 and based his decision on an erroneous assumption that shifts were not scheduled in advance at Waypoint.
The shift change reporting time clause
[9] I do not accept the first argument. It does not necessarily follow that, having agreed explicitly to award overtime for reporting at shift change exceeding 15 minutes, the parties must not have meant to base overtime in general on hours worked. Overtime for reporting at shift change is a special case. The extra 15 minutes needed to brief the incoming shift is meant normally not to be paid. However, if the briefing takes more than 15 minutes, overtime is paid not only for the excess but for the first 15 minutes as well. This language could reasonably be taken to apply only to this unique circumstance. Its existence does not make the arbitrator’s reliance on the general definition of overtime unreasonable.
Pre-scheduled shifts
[10] I do not agree that the arbitrator based his decision on an erroneous assumption that shifts were not scheduled in advance at Waypoint. He set out the entire agreed statement of fact, which made it clear that employee work hours were scheduled. He was also told in submissions by counsel for the union, with the consent of the employer, that employees’ schedules were, as a matter of practice, set in advance. He cannot have been of the erroneous view that Waypoint did not schedule the employees’ work hours ahead of time.
[11] The basis for arguing that the arbitrator held that erroneous view is that he distinguished the decision of Arbitrator Kaplan in Ottawa Hospital v. CUPE, Local 4000, 2011 CarswellOnt 5937. He said, “Arbitrator Kaplan seems to have hung his hat on the fact that the collective agreement in the matter before him established a ‘prescheduled workweek’ and ‘prescheduled days off’ for both full-time and part-time employees.”
[12] The distinction is not that the work week in Ottawa Hospital was scheduled in advance. The distinction is that the collective agreement in Ottawa Hospital established a right to a work week and days off that were scheduled in advance. The collective agreement in the present case does not. It leaves scheduling to the discretion of management, with no guarantees.
Motion to admit fresh evidence
[13] The union moves to admit fresh evidence in the form of an affidavit of its lawyer who appeared on the arbitration. She would depose that she told the arbitrator, with the consent of the employer, that Waypoint scheduled its employees hours ahead of time.
[14] Before admitting such evidence, we have to ask, first, whether the affidavit material shows that there is no evidence to support a finding of fact and second whether the evidence relates to a fact that is essential to the decision: 142445 Ontario Ltd. v. I.B.E.W., Local 636, [2009] O.J. No. 2011 (Div. Ct.). I would answer both questions in the negative.
[15] The fact to which the affiant would depose was already before the arbitrator in the agreed statement of facts and the information provided to him in oral submissions on consent. There is no finding of fact that was not supported by any evidence. The additional information was not essential to the decision in any event. The arbitrator’s ruling turned on the wording of the collective agreement, not whether the employer had a practice of setting work schedules in advance. The fresh evidence is not admissible.
Conclusion
[16] The arbitrator’s interpretation falls within a reasonable range of results and was justified on the law and the facts. I would dismiss the application for review with costs to the Respondent in the agreed amount of $7,500.
J.A. Ramsay J.
I agree _______________________________
Sachs J.
I agree _______________________________
Nishikawa J.
Released: March 14, 2022
CITATION: OPSEU, Local 329 v. Waypoint Centre for Mental Health Care, 2022 ONSC 1533
COURT FILE NO.: 292/20
DATE: 20220314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
– and –
WAYPOINT CENTRE FOR MENTAL HEALTH CARE
REASONS FOR JUDGMENT
J.A. Ramsay J.
Released: March 14, 2022