CITATION: Ontario Nurses’ Association v. Participating Hospitals, 2022 ONSC 5899
DIVISIONAL COURT FILE NO.: 854/21
DATE: 20221024
ONTARIO
SUPERIOR COURT OFJUSTICE
DIVISIONAL COURT
Backhouse, Lederer, S.T. Bale JJ.
B E T W E E N:
ONTARIO NURSES’ ASSOCIATION
Applicant
- and -
PARTICIPATING HOSPITALS
Respondent
Fay Faraday, for the Applicant
Frank Cesario and D. Winkel, for the Respondent
HEARD at Toronto by videoconference: October 3, 2022
Backhouse J.
reasons for decision
Overview
[1] The Applicant, Ontario Nurses’ Association (“ONA”), seeks judicial review of an Award made by an Interest Arbitration Board (“the Board”) chaired by Arbitrator Eli Gedalof (“the Arbitrator) dated September 20, 2021.[^1] ONA submits that the Award unreasonably failed to determine an issue it raised before it: the alleged discriminatory impact under the Human Rights Code[^2] of the 10-step 25-year wage grid for registered nurses (“RNs”) and nurse practitioners (“NPs”) and whether it should be compressed. ONA submits that the Award is unreasonable because:
(1) it failed to decide the threshold issue of whether ONA’s proposals were exempt from the compensation cap under s. 28 of Protecting a Sustainable Public Sector for Future Generations Act, 2019,[^3] known as “Bill 124”;
(2) it found that the Board would be usurping the pay equity process to consider the bargaining unit members’ human rights;
(3) it found that to go beyond the allowable 1% under Bill 124 requires a finding of a specific breach of the Human Rights Code committed by 131 separate employers; and
(4) it found that there was not the evidentiary record to assess whether 131 separate employers have breached the Human Rights Code.
[2] ONA asks that the Award, to the extent that it relates to the issue of systemic sex discrimination in the structure of the RN and NP wage grids and the interpretation and application of Bill 124, be set aside and that those issues be remitted to the Board to be determined in accordance with this Court’s direction.
[3] For the reasons set forth below, I would dismiss the application because ONA has not demonstrated that the Award is unreasonable.
Background
[4] The Award was made under the Hospital Labour Disputes Arbitration Act (“HLDAA”)[^4] which governs collective bargaining between ONA and the Respondent, the Participating Hospitals (“the Hospitals”). Under HLDAA, parties do not have recourse to the rights to strike or lockout. Instead, impasse in bargaining is resolved by interest arbitration in accordance with HLDAA.
[5] ONA is the bargaining agent of over 63,000 full-time and part-time Registered Nurses (“RNs”), Nurse Practitioners (“NPs”), Registered Practical Nurses (“RPNs”) and other health care professionals employed at the 131 Hospitals. ONA and the Hospitals engage in collective bargaining at both central and local levels. Central collective bargaining determines terms and conditions of work, including compensation, that apply at all 131 Hospitals. Other terms and conditions, which are not at issue before this Court, are bargained locally between ONA and individual Hospitals.
[6] RNs are the dominant classification within the hospital sector and the central collective agreement between ONA and the Hospitals sets the pattern for other ONA bargaining units and non-Participating Hospitals who replicate the central agreement.
[7] Bill 124 passed in November 2019, imposes a 3-year moderation period with respect to applicable public sector employers (including hospitals) during which compensation adjustments are limited to a maximum of 1% in each 12-month period. The purpose of Bill 124 is: “to ensure that increases in public sector compensation reflect the fiscal situation of the Province, are consistent with the principles of responsible fiscal management and protect the sustainability of public services”.[^5]
[8] This matter arises out of the 2021 round of central collective bargaining. The parties met in bargaining for several dates in March 2021, including with the help of a mediator. They did not resolve all of their outstanding issues but did reach agreement on several. The outstanding items were referred to binding interest arbitration before the Board.
Contextual Factors
[9] The Arbitrator noted two contextual forces that overwhelmed the context within which this round of collective bargaining and interest arbitration took place:
i) the ongoing Covid-19 pandemic; and
ii) Bill 124.
[10] The Arbitrator noted that nurses have borne a tremendous weight in providing essential and highly skilled care throughout this crisis and have been working under extremely challenging conditions. He noted that from ONA’s perspective, the pandemic has brought to a head and exacerbated long-standing systemic inequality. While hailed as heroes of the pandemic, ONA argues that their compensation structure leaves them lagging behind male comparators for the bulk of their career.
[11] The Arbitrator notes ONA’s position that the systemic inequality that is already baked into the nurses’ compensation structure and made particularly acute by the pandemic, has been further exacerbated by the constraints of Bill 124. While other front line workers that are male-dominated, such as police officers and firefighters, are able to bargain wage increases and other monetary improvements beyond any 1% limit, nurses working on the very front line of the pandemic cannot.
[12] The Arbitrator also notes that the pandemic has massively disrupted hospital operations as they have worked to respond to the dynamic and overwhelming demands of responding to the pandemic. The Arbitrator notes that from the Hospitals’ perspective, it would be entirely inappropriate to impose additional constraints on their ability to operate.
The RN and NP Wage Grids
[13] Over decades, interest arbitration boards have made ad hoc changes to the RN wage grid without examining the human rights implications of the resulting grids’ structure. The RN and NP wage grids have 10 steps from Start, through years 1 to 8, and ending at Year 25. In most cases the NP wage grid follows the same 10-step, 25-year structure as the RN grid but the NP wage grids are set out in local rather than central collective agreement terms and wage rates vary significantly between Hospitals.
[14] ONA’s top priorities before the Board were: wage discrimination, job security, and health and safety. With respect to wage discrimination, ONA submitted that systemic sex discrimination arose from (i) the number of steps on the RN and NP wage grids; (ii) the length of time it takes to progress through the wage grids; and (iii) the fact that at every step on the grid, nurses are paid less than their male comparator. ONA proposed that the current 10-step wage grid for RNs (which contains a top rate at 25 years) be replaced with a compressed 7-step grid, which would allow nurses to reach the top rate in 6 years, instead of 25 years.
[15] ONA also proposed:
(1) to introduce a single standardized six-step wage grid with a top rate at 5 years for NPs, as opposed to the current wage grid for NPs which varies among hospitals and has a variety of wage rates and steps;
(2) that RNs and NPs be placed on these grids so that they receive a salary increase; and
(3) a Long Service Pay Adjustment Letter of Understanding providing for a 2% increase to employee’s wage rate at 10 years of service.
[16] ONA argued that the current wage structure is discriminatory and contrary to the Human Rights Code. It submitted that applying Bill 124 to prevent the Board from awarding a human rights compliant wage grid would be contrary to s. 28(a) of Bill 124. ONA submits that this would perpetuate systemic sex discrimination by exacerbating wage differentials between RNs, NPs and male comparators not covered by Bill 124.
[17] Subsection 28(a) of Bill 124 provides:
28 Nothing in this Act or in the regulations shall be interpreted or applied so as to reduce a right or entitlement under,
(a) the Human Rights Code;
(d) the Pay Equity Act.
[18] The Hospitals took the position that, because of Bill 124, wage increases must be limited to 1% per year and that s. 29(2) of Bill 124 prohibits the remedy that ONA sought. Section 29(2) provides as follows:
29(2) An arbitrator, arbitration board or tribunal shall not inquire into or make a decision on whether a provision of this Act, a regulation or an order made under subsection 26 (1) is constitutionally valid or is in conflict with the Human Rights Code.
The Interest Arbitration Award
[19] In the Award, the Arbitrator found:
(1) that the existing 10-step, 25-year wage grid was not inherently discriminatory;
(2) it was unnecessary to decide whether ONA’s proposals were exempt from the compensation cap under s. 28 of Bill 124;
(3) there was “a live dispute” between the parties about whether there was an agreed male comparator and any disputes over the appropriate pay equity comparators and the extent to which the parties have agreed to certain comparators should be determined within the pay equity process to which the parties agreed;
(4) the Board did not have before it an evidentiary record upon which it could properly assess whether 131 separate employers have breached the Human Rights Code;
(5) the procedure adopted must be suited to the nature of the dispute. The procedure adopted by the parties, while appropriate in creating an evidentiary record for an interest arbitration, was not a record that allowed the Board to determine an extremely complex “rights” arbitration, or upon which it could properly find 131 breaches of the Human Rights Code;
(6) in the absence of such a substantive finding, Bill 124 clearly and unequivocally precluded awarding any compression of or advanced placement on the grid, and precluded awarding any long-service pay adjustment;
(7) in reaching this conclusion, the Board was explicitly not deciding the merits of whether the existing wage schedules were discriminatory, or whether equity considerations or the principles of interest arbitration would support an amendment to the wage grid. Those are issues that remained to be addressed in a different forum, or by a subsequent board of interest arbitration that is not constrained by Bill 124, as may be appropriate.
Charter Challenge
[20] The Arbitrator noted that ONA has filed a constitutional Charter challenge to Bill 124 in Court in which it seeks to overturn it on two constitutional grounds: s.2(d) of the Charter (freedom of association) and s. 15 of the Charter (equality rights). The Arbitrator notes that this is the appropriate venue for such a challenge.
[21] The Arbitrator rejected ONA’s arguments that, nonetheless, the Board ought to issue an award without regard to Bill 124, in part for the reasons set out in its Charter challenge, but also in part because the application of Bill 124 was inconsistent with the Board’s obligation to carry out its statutory mandate under HLDAA. ONA submitted that Bill 124 unduly interfered with the exercise of the Board’s expertise.
[22] At paragraph 24 of the Award, the Arbitrator noted that these arguments were rejected in the previous round of interest arbitration between these parties in the Stout award which in turn cites the reasons in Mon Sheong Home for the Aged v. Ontario Nurses’ Association where the arbitrator found that the issues raised by ONA were left by the legislature to the courts.[^6] The Arbitrator dismissed ONA’s arguments for the same reasons that were addressed in the Stout and in the Mon Sheong awards. For the same reasons as provided for in those awards, the Arbitrator ordered a re-opener in order to protect against the potential disruption to established bargaining patterns in the event that Bill 124 is ultimately overturned by the courts or otherwise found to be inapplicable.
Standard of Review
[23] The parties agree that reasonableness is the appropriate standard of review for interest arbitration awards. The reasonableness standard therefore applies here.
The Role of Interest Arbitration
[24] Interest arbitrators are not engaged in adjudicative fact-finding, but rather in drafting broadly applied workplace rules based on general principles akin to policy considerations. In C.U.P.E. v. Ontario (Minister of Labour) the Supreme Court summarized the distinction between rights and interest arbitrators as follows:
A distinction must be drawn between ‘grievance arbitration’, where the arbitrator(s) are required to interpret a collective agreement previously arrived at, and ‘interest arbitration’ in which the arbitrator(s) decide upon the terms of the collective agreement itself. The former is adjudicative; the latter is more or less legislative. . . . In short, they can readily understand how their judgments in arbitration awards will affect the workplace realities of employees, unions, and management. . . .[^7]
The Principles of Interest Arbitration
The Replication Principle
[26] The purpose of interest arbitration is to replicate the “give-and-take” process of free collective bargaining. When this process fails between the parties, the interest arbitrator’s role is to attempt to replicate free collective bargaining as closely as possible:
[27] There is much room for debate on the final result, but interest arbitration is not an exact science, and the appropriate outcome is one that falls within a reasonable range of what the parties would have agreed upon in free collective bargaining based on the relevant comparators. As stated in Participating Hospitals (Ontario Hospital Association) v. Ontario Nurses’ Association, “… the goal of compulsory binding arbitration is to ensure that the parties affected by the loss of the right to strike fare as well, although not better than, those parties whose settlements are negotiated within the context of the right to strike”.[^8]
[28] Interest arbitrators will look to relevant comparators for indications of what might be a “reasonable” outcome, had the parties negotiated the terms of their agreement freely. Part of the replication principle is the task of identifying trade-offs and compromises that may have resulted in free collective bargaining. The duty is to craft a fair and reasonable award.[^9]
The HLDAA Criteria
[29] HLDAA sets out a number of factors and criteria for arbitrators to consider:
(1.1) In making a decision or award, the board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:
The employer’s ability to pay in light of its fiscal situation.
The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
The economic situation in Ontario and in the municipality where the hospital is located.
A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
The employer’s ability to attract and retain qualified employees.
(1.3) Nothing in subsection (1.1) affects the powers of the board of arbitration.[^10]
The Issues
[30] ONA argued four main issues on this judicial review:
(1) The Award was unreasonable for failing to decide the threshold issue of whether ONA’s proposals were exempt from the 1% compensation cap under s. 28 of Bill 124.
(2) It was unreasonable for the Arbitrator to find that the Board would be usurping the pay equity process to consider the bargaining unit members’ human rights.
(3) It was unreasonable for the Arbitrator to find that to go beyond the allowable 1% under Bill 124 requires a finding of a specific breach of the Human Rights Code committed by 131 separate employers.
(4) It was unreasonable to find that there was not the evidentiary record to assess whether 131 separate employers have breached the Human Rights Code.
Analysis
Issue 1: Is the Award unreasonable for failing to decide the threshold issue of whether ONA’s proposals were exempt from the 1% compensation cap under s. 28 of Bill 124?
[31] ONA submits that it is easily determined on the face of Bill 124 whether its wage grid proposal is exempt from the 1% cap and having failed to provide any analysis of s.28 of Bill 124, the reasons are unintelligible and unreasonable.
[32] It is clear from paragraph 35 of the Award that the Arbitrator determined that it was not possible or appropriate to make a finding that the Hospitals had breached the Human Rights Code. Having found that that was a precondition to the exemption under s. 28(a), the Arbitrator held that it was not necessary to decide whether ONA’s proposals were exempt from the 1% compensation cap under s. 28 of Bill 124. The Arbitrator stated the following with respect to s. 28(a) of Bill 124:
35 …it is not obvious to us that, having regard to paragraph 28(a) of Bill 124, an appropriate remedy for a breach of the Human Rights Code could not result in wage increases of greater than 1% per year during the Bill 124 moderation period. Certainly, permitting such an increase would appear to be the purpose of maintaining rights under the Pay Equity Act under paragraph 28(d), and it is difficult to see why one would draw a distinction between the rights under either Act. But in the final analysis, we do not find it necessary to decide this issue because in our view it is neither possible nor appropriate for us to conclude on the record before us that the 131 Participating Hospitals have committed an actual and specific breach of the [Human Rights] Code. Neither, to be clear, would we find it possible or appropriate to conclude that they have not committed such a breach.
[33] The Court in Vavilov held that “[a] reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection”[^11], and adopted Justice Abella’s analysis from Newfoundland Nurses:[^12]
A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met...
[34] It will only be unreasonable not to have determined the threshold issue of whether ONA’s wage proposals are exempt under s. 28(a) of Bill 124 if the Arbitrator’s conclusion was unreasonable that it was not possible or appropriate to address the substance of ONA’s human rights wage grid proposal. This is considered below. In the result, I have concluded that it was not necessary for the Arbitrator to determine the threshold issue.
Issue 2: Was it unreasonable for the Arbitrator to find that it would not be appropriate for the Board to usurp the pay equity process?
[35] ONA submits that the Arbitrator unreasonably suggests that compressing the wage grids would usurp a decision about what is the appropriate comparator for pay equity purposes. It submits that this also presents a misunderstanding of the Pay Equity Act[^13] and the pay equity process. ONA argues that:
(1) the parties have an existing pay equity plan under which they agreed to a male comparator which was subsequently upheld in a binding decision by a Pay Equity Review Officer.[^14]
(2) under the Pay Equity Act, a party cannot unilaterally resile from using an existing male comparator.[^15] In the absence of a negotiated or adjudicated change, the existing comparator remains binding.[^16]
(3) there is an erroneous premise in the Award about the respective ambit of pay equity and human rights law and adjudication. The Divisional Court held in CUPE v. Lakeridge[^17] that the Pay Equity Tribunal had no jurisdiction to harmonize wage grids below the job rate and that harmonization or compression of the wage grids must be addressed under the Human Rights Code.
[36] The Hospitals argue that the July 19, 2012 agreement ONA relies upon as establishing an appropriate male comparator dealt with the period 1993 to 2011 and specifically states that it is “without prejudice and without precedent with respect to their current negotiations to develop a new central pay equity plan which will be effective April 1, 2011”. The Arbitrator summarized the Hospitals’ argument at paragraph 32 of the Award:
[32] …the Hospitals maintain that the 2012 comparator formed a narrow part of an interim agreement between the parties which gave rise to the ongoing centralized pay equity process: a process in which the parties have bargained comprehensive terms of reference but in which the appropriate comparators remain to be determined. …
[37] The January 15, 2013 decision of the Pay Equity Office Review Officer which ONA relies upon as the basis for there being an agreed male comparator was in relation to a grievance brought by individual applicants on April 18, 2009 over whether pay equity had been maintained. Niagara Health System and ONA were respondents on the application. The applicants argued that the August 2012 Pay Equity Plan did not comply with the Pay Equity Act because it did not identify the male jobs that comprised the male comparator. In dismissing the grievance over whether pay equity had been maintained, the officer found that the August 2012 replacement pay equity plan between the Participating Hospitals and ONA which determined the male comparators after the fact complied with the Pay Equity Act and was deemed an approved plan. This decision did not consider the specific terms of the agreement limiting it to the period 1993 to 2011 “without prejudice and without precedent with respect to their ongoing negotiations to develop a new central pay equity plan which was to be effective April 1, 2011.”
[38] The Arbitrator took into account the parties’ submissions and provided a lengthy and detailed explanation of how he came to the decision that there was “a live dispute between the parties about whether there was an agreed male comparator.” There was nothing unreasonable in the Arbitrator’s conclusion and his conclusion is entitled to deference.
[39] It is important to consider the context in which the Arbitrator found that it would not be appropriate for the board to usurp the pay equity process. He stated at paragraph 36:
- First, it bears noting that there is nothing inherently discriminatory in adopting a 25-year rate under a wage grid. The Association’s argument is predicated on a finding that there is a pay equity gap to begin with. And while the Association argues that such a conclusion follows from the comparator to which the parties have agreed, there is a live dispute between the parties about whether that comparator is in fact appropriate. These parties have agreed to an ongoing pay equity process, and it would not be appropriate for this board to usurp that process. Any disputes over the appropriate pay equity comparators, and any disputes over the extent to which the parties have agreed to certain comparators within that process, should be determined within the process to which the parties have agreed. For this Board to award the Association’s proposals would inescapably and inappropriately pre-empt the outcome of that process, and undermine, rather than give effect to, the parties’ agreement. Such an outcome could not be said to replicate free collective bargaining.
[40] I am not persuaded that the Arbitrator’s reasoning is anchored in an erroneous premise about the respective ambit of pay equity and human rights law and adjudication. There is nothing unreasonable about his finding that the dispute over an appropriate comparator or whether the parties have agreed to certain comparators should be worked out within the pay equity process to which the parties have agreed, in which the parties have bargained comprehensive terms of reference but in which the appropriate comparators remain in issue. I do not understand the Arbitrator to be saying that the appropriate place to deal with harmonization or compression of the wage grids is under the pay equity process which would be contrary to the finding in Lakeridge[^18]. It is apparent from paragraph 28 of the Award that he was clearly aware of Lakeridge and its holding. He clearly understood ONA’s argument that systemic discrimination inherent in the grid structure will not be remedied through the pay equity process and should therefore be corrected by the Board.
[41] What the Arbitrator is saying is that if ONA’s proposals were to be considered at the interest arbitration, this would require a finding on an appropriate comparator which would usurp the process in which the parties are engaged in reaching an agreed comparator for pay equity purposes.
[42] The Arbitrator’s finding that such an outcome could not be said to replicate free collective bargaining is entitled to deference.
[43] Indeed, the Arbitrator recognizes in paragraph 33 of the Award that absent Bill 124, there would be no doubt that this Board retained the jurisdiction to compress the 25-year grid, to implement a new grid for NPs, or to award economic increases such as the 10-year retention bonus that ONA seeks. He acknowledges that “boards of interest arbitration have awarded similar proposals (i.e., amended or compressed wage grids), looking to appropriate comparators and in order to address concerns of equality, both related to gender issues and in the sense of ensuring “equal pay for equal work” as between comparable positions.” He finds that it is generally within the jurisdiction of a board of arbitration to revisit the outcome of prior awards and to address any unintended consequences of those awards. He notes that the basic principles of interest arbitration such as replication and the related concept of comparability, together with demonstrated need, might drive such a result in those circumstances.
[44] I reject ONA’s argument that it was unreasonable for the Arbitrator to find that the issue of an appropriate comparator should be worked out in the pay equity process in which the parties are engaged.
Issue 3: Was it unreasonable for the Arbitrator to find that to go beyond the allowable 1% increase under Bill 124 required a finding of a specific breach of the Human Rights Code committed by 131 separate employers?
[45] The Arbitrator found that ONA’s proposals result in substantial wage increases well beyond anything that could be described as normative in collective bargaining and well beyond any increases contemplated by Bill 124. He found that to go beyond the allowable 1% under Bill 124 would require a finding of a specific breach of the Human Rights Code committed by the 131 separate employers which the interest arbitration process was not designed to do.
[46] It was not unreasonable for the Arbitrator to come to this conclusion given the following:
(1) The Arbitrator’s finding that ONA’s proposals resulted in substantial wage increases well beyond anything that could be described as normative in collective bargaining;
(2) Interest arbitration is not engaged in adjudicative fact finding but rather in deciding upon the terms of the collective agreement which “is more or less legislative”[^19];
(3) S.28 (a) of Bill 124 provides that Bill 124 is not to be applied so as to “reduce a right or entitlement” under, among other things, the Human Rights Code. When s. 28(a) is compared to s. 29(2) which restricts an arbitrator from inquiring into or making a decision on whether an order made under Bill 124 is in conflict with the Human Rights Code, it is reasonable to conclude, as the Arbitrator did, that s. 28(a) requires more than the process where boards of interest arbitration have considered similar proposals and addressed considerations of the human rights implications in the past.
[47] I cannot agree with ONA’s argument that the Board offers no justification for why the “appropriate” evidence can only be met by distinct adjudicated findings of human rights violations by each of the 131 Participating Hospitals. The Arbitrator properly recognized that it was constrained by Bill 124. He also recognized in paragraph 23 of the Award that:
- …Bill 124 explicitly limits the jurisdiction of, among others, arbitrator and boards of arbitration such as this one, from inquiring into or making a decision ‘on whether a provision of this Act, a regulation or an order made under subsection 26(1) is constitutionally valid or is in conflict with the Human Rights Code’ (s. 29(2)). Further, Bill 124 provides the government with a number of oversight and enforcement mechanisms including the ability to invalidate an interest arbitration award or to withhold funding from non-compliant employers. To put it bluntly, therefore, when it comes to the application of Bill 124 in this proceeding, the parties’ and this Board’s hands are tied.
[48] The Arbitrator found that what was required to come within the exception in s. 28(a) was an adjudicative finding of a specific breach of the Code by the 131 separate employers. He found that absent such a substantive finding, Bill 124 clearly and unequivocally precludes awarding any compression of or advanced placement on the grid and precludes awarding any long-service pay adjustment above and beyond the allowable 1%. In my view, that was not unreasonable and his finding is entitled to deference.
Issue 4: Was it unreasonable to find that there was not the evidentiary record to assess whether 131 separate employers have breached the Human Rights Code?
[49] At paragraph 37, the Arbitrator found that there was not an evidentiary record before the Board upon which it could properly assess whether 131 separate employers have breached the Human Rights Code. He noted that the procedure adopted by the parties before the Board is entirely appropriate in creating an evidentiary record for an interest arbitration-a record that permits the Board to properly apply the principles of interest arbitration to the proposals before it. However, he found that it did not provide the parties with a full and fair opportunity to litigate such a complex issue of human rights as would be required by the principles of natural justice. He held that without being able to determine whether the existing wage schedules are discriminatory, he had no basis to exempt the wage grid proposal from the 1% cap under Section 28 of Bill 124.
[50] The Arbitrator referenced the case of Association of Ontario Midwives v. Ontario (Health and Long-Term Care)[^20] which was based on an extensive record, established through a collaborative process in conjunction with the Pay Equity Tribunal, over several years, that included numerous affidavits and expert reports, followed by approximately 50 days of testimony, resulting in thousands of pages of transcripts and extensive closing argument. While he noted that such a laborious process was not necessary in every case of an alleged breach of the Code, he found that the procedure adopted must be suited to the nature of the dispute.
[51] The Arbitrator did not specifically address ONA’s argument that its brief was extensive, and the Hospitals had full opportunity to respond and to present their own evidence and legal argument but chose to take the position that Bill 124 prevented any remedy under the Human Rights Code. It was not necessary that the Arbitrator specifically address this argument. The Arbitrator brought to bear his expertise in interest arbitration and provided reasons for finding that while the procedure was entirely appropriate in creating an evidentiary record for an interest arbitration, it was insufficient for litigating the complex issue of human rights. There was nothing unreasonable about this finding and it is entitled to deference.
[52] The Arbitrator made clear that he had taken the HLDAA and replication principles into account but that Bill 124 was a threshold issue that limited to a very significant degree what was possible for the board to consider:
- … What is readily apparent in reviewing the parties’ economic proposals, however, is the extent to which the application of Bill 124 is a threshold issue that limits to a very significant degree what it is even possible for this board to consider in this round. Arguments about ability to pay, impact on services, the state of and future prospects for the Ontario economy, whether comparisons to more generous settlements are or are not appropriate, and whether or not it is necessary to improve monetary terms in order to attract and retain nurses, all become academic if the most that can be done is to award 1% increases, which increases are not opposed by the Hospitals.[^21]
Conclusion
[53] In the result, ONA has not demonstrated that the Award is unreasonable. Accordingly, the application is dismissed.
Costs
[54] Pursuant to the parties’ agreement, Participating Hospitals, as the successful party, is entitled to costs in the amount of $5,000.00.
Backhouse J.
I agree _______________________________
Lederer J.
I agree _______________________________
S.T.Bale J.
Released: October 24, 2022
CITATION: Ontario Nurses’ Association v. Participating Hospitals, 2022 ONSC 5899
DIVISIONAL COURT FILE NO.: 854/21
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, S.T. Bale JJ.
B E T W E E N:
ONTARIO NURSES’ ASSOCIATION
Applicant
- and -
PARTICIPATING HOSPITALS
Respondent
REASONS FOR DECISION
Backhouse J.
Released: October 24, 2022
[^1]: Participating Hospitals v. Ontario Nurses Association, 2021 88531 (ON LA).
[^2]: Ontario Human Rights Code, R.S.O.1990, c. H.19.
[^3]: Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12 (“Bill 124”).
[^4]: Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14.
[^5]: Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124”), s.1.
[^6]: Mon Sheong Home for the Aged v. Ontario Nurses’ Association, 2020 8770 (ON LA) at para.16.
[^7]: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR 539, at para. 53.
[^8]: Participating Hospitals (Ontario Hospital Association) v. Ontario Nurses’ Association, 2020 38651 (ON LA), at para. 29.
[^9]: Independent Electricity System Operator v. Society of United Professionals, 2019 41256 (ON LA), at para. 29.
[^10]: Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14, s. 9(1).
[^11]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para. 91.
[^12]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para.16.
[^13]: Pay Equity Act, R.S.O. 1990, c. P.7.
[^14]: Pay Equity Office, Review Officer’s Notice of Decision, Individual Applicants v. Niagara Health System and Ontario Nurses’ Association (15 January 2013).
[^15]: Pay Equity Act, s. 14.1(1); Canadian Union of Public Employees, Local 883 v. Salvation Army Grace General Hospital, 1995 7211 (ON PEHT), at paras. 12-15.
[^16]: Niagara (Regional Municipality) v. CUPE, Local 1287, 1999 14829 (ON PEHT) at paras. 19, 22-23.
[^17]: Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051 (Div. Ct.).
[^18]: Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051 (Div. Ct.).
[^19]: [19] C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR 539, at para. 53.
[^20]: Association of Ontario Midwives v. Ontario (Health and Long-Term Care),2018 HRTO 1335.
[^21]: Participating Hospitals, 2021 88531 (ON LA), at para. 20.