CITATION: Simcoe Muskoka District Health Unit v. ONA, 2023 ONSC 284

DIVISIONAL COURT FILE NO.: DC-22-1289-JR

DATE: 20230125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BACKHOUSE, STEWART & MATHESON JJ.

BETWEEN:

THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT

Applicant

– and –

ONTARIO NURSES’ ASSOCIATION, ELAINE NEWMAN, PORTER HERRERNAN and PHILIP ABBIK

Respondents

Kevin MacNeill and Lauren Berdock, for the Applicant

Sharan K. Basran and James (Sandy) Donaldson, for the Respondent Ontario Nurses Association

HEARD at Oshawa (by videoconference): September 23, 2022

REASONS FOR DECISION

By the Court:

[1] The Simcoe Muskoka District Health Unit applies for judicial review of a labour arbitration award dated December 13, 2021 (the “Award”).

[2] The Award arose from a grievance filed by the Ontario Nurses Association (the “Union”) alleging violations of its collective agreement in the context of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “Act”) and Ontario Regulation 116/20: Work Deployment Measures for Boards of Health (the “Order”) regarding the COVID-19 pandemic. The three personal respondents comprise the arbitral tribunal and did not participate in this application.

[3] There is no longer any issue that the collective agreement was breached. Nor is there any issue that the Order was valid. The issues relate to whether or not the breach of the collective agreement was permitted by virtue of the Act and Order.

[4] For the reasons set out below, this application is dismissed.

Background

[5] The facts with respect to this matter were put forward in the arbitration in an agreed statement of facts (“ASF”).

[6] The Health Unit is a board of health and is responsible for the provision of certain mandatory health programs and services, including the control of infectious diseases. The Union represents registered nurses and allied health professionals, including those working in public health units.

[7] The collective agreement between the parties included provisions regarding what was called compensating time or “comp time”. When nurses did employer-assigned work in excess of seven hours a day on weekdays, those excess hours were treated as comp time. As set out in more detail in the collective agreement, that time could be accumulated up to a maximum amount, could be taken in the first three months of the following year, and, if there was a remaining balance at the end of the first three months, it was required to be paid at 1.5 times the nurses’ straight time hourly rate.

[8] The Health Unit had managed this regime such that there was no balance that needed to be paid out to nurses for comp time in the years prior to the events giving rise to the grievance.

[9] The COVID-19 pandemic caused a significant increase in the workload of health units, including nursing staff. In late March 2020, the Health Unit notified the Union that it was temporarily suspending the 35-hour limit on comp time as a response to the increasing work hours of the nursing staff. In addition to the accumulation of more comp time as a result, the needs arising from the pandemic meant that the Health Unit could not grant the use of comp time to nurses in the way that it did in the past.

[10] In response to the pandemic, the Ontario government passed O. Reg. 116/20: Work Deployment Measure for Boards of Health (the “Order”), which came in force effective April 1, 2020, and remained in force at the time of the arbitration.

[11] In May 2020, the province notified public health units that it would set up a reimbursement method to help set-off costs of fighting COVID-19, but ultimately the funding had to be used in 2020 and expenses incurred in 2020 would not be reimbursed in 2021.

[12] The ASF sets out the many challenges for health units in 2020 because of the COVID-19 pandemic and the substantial impact on the work of the Health Unit. Further, as a public sector employer, the Health Unit operated on a fixed budget and anticipated a return to a fixed budget in 2021 because the added funding in 2020 was a one-time payment in 2020. The Health Unit was therefore planning to address the costs consequences of the steps being taken to meet the service needs due to the pandemic.

[13] On November 23, 2020, the Health Unit sent out an email to health unit staff regarding comp time, which was the focus of the Award (the “Email”). The Email noted that employees had “stepped up to the plate to combat COVID-19” and some employees had their comp time dramatically increased with few options for using this accrued time off. The Email encouraged Union members to take their accrued comp time by the March 31, 2021, deadline under the collective agreement. The Email stated that the result of staff not being able to take their normal time off in 2020 was a significant cost liability for the health unit and that in order to reduce this liability in the 2021 budget, options were being presented to increase pay outs of banked comp time in 2020. The Email went on as follows:

• You have the option to have all of your Comp time paid out in December of 2020 at straight time.
• A second option is to have any amount of your accrued Comp time (for example 35 hours) carried over into 2021 and the balance of Comp time paid out in December 2020 at straight time.
• A third option is to carry over all of your comp time.
• If you opt to carry over any 2020 comp time please work with your direct supervisor on how you will be taking all of this 2020 comp carry over time, by March 31, 2021 as you will be required to use all of your carry over comp time by this date.
• Please note: As of January 1, 2021, ONA members will be required to once again take time off as per the Collective Agreement to reduce their comp bank down to a maximum of thirty-five (35) hours at any one (1) time. …

[14] The Union then brought the grievance that gave rise to the Award. Fourteen nurses still requested the payout of their accrued comp time to be paid out as straight time in 2020 as offered in the Email, an option that did not form part of the collective agreement. Those payments were made.

Legislative Regime

[15] The Emergency Management and Civil Protection Act provides broadly for the development of emergency management programs and for responses to emergencies. Section 7.0.1 provides for the declaration of an emergency and responses. The focus of this application is s. 7.0.2, which provides for emergency powers and orders, as follows, in relevant part:

7.0.2 (1) The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.

(2) During a declared emergency, the Lieutenant Governor in Council may make orders that the Lieutenant Governor in Council believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property, if in the opinion of the Lieutenant Governor in Council it is reasonable to believe that,

(a) the harm or damage will be alleviated by an order; and

(b) making an order is a reasonable alternative to other measures that might be taken to address the emergency.

(3) Orders made under this section are subject to the following limitations:

1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.

2. An order shall only apply to the areas of the Province where it is necessary.

3. Subject to section 7.0.8, an order shall be effective only for as long as is necessary.

(4) In accordance with subsection (2) and subject to the limitations in subsection (3), the Lieutenant Governor in Council may make orders in respect of the following:

1. Implementing any emergency plans formulated under section 3, 6, 8 or 8.1.

2. Regulating or prohibiting travel or movement to, from or within any specified area.

3. Evacuating individuals and animals and removing personal property from any specified area and making arrangements for the adequate care and protection of individuals and property.

4. Establishing facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals.

5. Closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution.

6. To prevent, respond to or alleviate the effects of the emergency, constructing works, restoring necessary facilities and appropriating, using, destroying, removing or disposing of property.

7. Collecting, transporting, storing, processing and disposing of any type of waste.

8. Authorizing facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency.

9. Using any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution.

10. Procuring necessary goods, services and resources.

11. Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources.

12. Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.

13. Subject to subsection (7), requiring that any person collect, use or disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.

14. Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.

(5) An order under paragraph 12 of subsection (4) may provide for terms and conditions of service for persons providing and receiving services under that paragraph, including the payment of compensation to the person providing services.

(6) The employment of a person providing services under an order made under paragraph 12 of subsection (4) shall not be terminated because the person is providing those services. [Emphasis added.]

[16] As set out above, in s. 7.0.2(5)(6), among other subsections, the Act does provide for orders that have an impact on the terms and conditions of service providers, including employees.

[17] The Act further provides for agreements about payments in a. 13(1) and limits recourse in regard to property rights in s. 13.1:

13 (1) The Solicitor General, with the approval of the Lieutenant Governor in Council, may make agreements with the Crown in right of Canada in respect of the payment by Canada to Ontario of any part of the cost to Ontario and to municipalities of the development and implementation of emergency management programs and the formulation and implementation of emergency plans.

(2) The Solicitor General, with the approval of the Lieutenant Governor in Council, may make agreements with the Crown in right of Canada and with the Crown in right of any other province for the provision of any personnel, service, equipment or material during an emergency.

(3) The council of a municipality may make an agreement with the council of any other municipality or with any person for the provision of any personnel, service, equipment or material during an emergency.

13.1 (1) Nothing done under this Act or under an order made under subsection 7.0.2 (4) constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law and there is no compensation for the loss, including a taking, of any real or personal property except in accordance with subsection (3).

(2) The Lieutenant Governor in Council may by order authorize the payment of the cost of providing any assistance that arises under this Act or as the result of an emergency out of funds appropriated by the Assembly.

(3) If, as the result of making an order under subsection 7.0.2 (4), a person suffers the loss, including a taking, of any real or personal property, the Lieutenant Governor in Council may by order authorize the reasonable compensation of the person for the loss in accordance with such guidelines as may be approved by the Lieutenant Governor in Council.

(4) Without limiting the generality of subsection (2), the Lieutenant Governor in Council may by order authorize the payment of the costs incurred by a municipality in respect of an order made under this Act out of funds appropriated by the Assembly.

[Emphasis added.]

[18] The Order was made under the above Act.[^1] As set out below, s. 2 of the Order directed and authorized the Health Unit to take, “with respect to work deployment and staffing”, any reasonably necessary measure to respond to, prevent and alleviate the outbreak of COVID-19. The Order further provided that the Health Unit could exercise its power “despite any other statue, regulation, order, policy, arrangement or agreement, including a collective agreement”. The Order that was O. Reg 116/20, now repealed, provided as follows in relevant part:

1. This Order applies to every board of health within the meaning of the Health Protection and Promotion Act.

2. Boards of health shall and are authorized to take, with respect to work deployment and staffing, any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus (COVID-19) (the “Virus”).

3. Without limiting the generality of section 2, and despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, boards of health shall and are authorized to do the following:

4. Identify staffing priorities and develop, modify and implement redeployment plans, including the following:

i. Redeploying staff within different locations in (or between) facilities of the board of health.

ii. Changing the assignment of work, including assigning non-bargaining unit employees or contractors to perform bargaining unit work.

iii. Changing the scheduling of work or shift assignments.

iv. Deferring or cancelling vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise.

v. Employing extra part-time or temporary staff or contractors, including for the purposes of performing bargaining unit work.

vi. Using volunteers to perform work, including to perform bargaining unit work.

vii. Providing appropriate training or education as needed to staff and volunteers to achieve the purposes of a redeployment plan.

2. Conduct any skills and experience inventories of staff to identify possible alternative roles in priority areas.

3. Require and collect information from staff, contractors or volunteers about their availability to provide services for the board of health.

4. Require and collect information from staff, contractors or volunteers about their likely or actual exposure to the Virus, or about any other health conditions that may affect their ability to provide services.

5. Cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the Virus or services that are not deemed to be critical by a board of health’s business continuity or pandemic plans.

6. Suspend, for the duration of this Order, any grievance process with respect to any matter referred to in this Order.

7. For greater certainty, a board of health may implement redeployment plans without complying with provisions of a collective agreement, including lay-off, seniority/service or bumping provisions. …

[Emphasis added.]

Award

[19] The Award concluded that the Email was a violation of the collective agreement. On this, the three-member board of arbitration was in agreement. That ruling is not challenged in this application. The Board went on to consider whether the Email was permitted by the Order, and, if not, what remedy was appropriate. The Board was divided on those issues.

[20] The majority concluded that “neither the Act nor the Order authorize the Health Unit to take a measure that was in breach of the collective agreement, on the basis that it was a measure geared toward the cost consequences of the outbreak rather than the outbreak itself. This… is consistent with its plain language and structure, in the context of an unprecedented viral outbreak.”

[21] With respect the Act, the Award did not focus on the various sections of the Act that addressed property, service providers and the impact on terms of employment.

[22] With respect to the Order, the majority concluded that the Order authorized the Health Unit to take measures reasonably necessary to address the COVID-19 outbreak itself but did not go so far as authorizing steps to address the cost consequences of those measures. In doing so, the majority interpreted the scope of the Act and the Order, concluding as follows:

(1) that the Act expressly limits the intrusiveness of the orders to be made;

(2) that the Order defines the scope of its application and does not address cost consequences; and,

(3) that the Order only authorized measures that are reasonably necessary, therefore excluding any measure to address costs consequences related to the provision of community care during the pandemic.

[23] The majority noted that s. 2 of the Order used broad language to define the scope of the activity targeted for affirmative action. However, the majority took the view that the Order authorized the employer to take any measures reasonably necessary to address the outbreak but “did not go so far as to authorize it to take measures – even those considered reasonable – to address the costs consequences of those measures.” The majority gave three reasons for its conclusion:

(1) that the enabling legislation itself expressly limited the intrusiveness of the orders to be made under it: the purpose of the Act was to promote the public good by protecting the health, safety and welfare of the people of Ontario and it authorized orders that were necessary and essential to prevent, reduce or mitigate serious harm to persons or substantial damage to property, which did not include financial consequences of the measures taken in response to the emergency; further, the Act limited the intrusiveness of the actions and addressing the cost consequences of the measures were beyond that scope and would be intrusive in the context of the parties’ labour relations and in terms of the collective agreement that they had negotiated;

(2) that the Order itself defined the scope of its application and did not make mention of costs consequences, instead only addressing “work redeployment and staffing” and any reasonable necessary measures, and makes no mention of the costs of those measures: clear language would be needed to express a deliberate intervention in matters of compensation that are addressed in a collective agreement and even if permitted by the Act (which the majority did not believe it was), the power was not included in the Order itself; and,

(3) that the Order authorized measures that were “reasonably necessary” and the majority did not consider a measure that addressed cost consequences of the outbreak to be “reasonably necessary” to the purpose.

[24] In reaching the above conclusions, the majority acknowledged that the facts before them had not been specifically addressed by any other board of arbitration. However, the majority agreed with Heritage Green Nursing Home v Service Employees International Union, Local 1, 2020 50475 (ON LA), in which the Arbitrator mentioned that clear language would be expected if the effect of the Order was to shield the employer from the cost consequences of its redeployment choices by overriding collective agreement provisions. The majority further noted that even though this case had a unique set of facts, there was a common thread in the arbitral interpretations in other awards insofar as they recognized the applicability of the term “reasonably necessary” to any measure taken under the Order. The majority found that the Health Unit’s purpose was to address its mounting costs, not to respond to the outbreak.

[25] The majority noted that there was no evidence before the Board that established any potential or actual concern that the costs consequences of adhering to the collective agreement requirements would have had a direct impact on the provision of public health services. They further found that cost cutting measures such as those contemplated by this employer were not open to it under the Order.

[26] The majority noted that the list of examples in s. 3 of the Order was silent on the question of cost consequences. The majority said that even though the list was not exhaustive it supported the conclusion that neither the legislature nor the Lieutenant Governor in Council contemplated the possibility that the purpose or intent of the intervention was to shield an employer from the costs of redeployment. They went on to say that it was “logical to conclude that had that been the intent, it would have been expressed” and instead the Legislature chose not to enter into the field of the economic cost of the pandemic, or the economic cost of the public health measures necessary to respond to, prevent and alleviate” the pandemic.

[27] The dissenting Board member agreed that the Email was a breach of the collective agreement but would have found that the Email was permitted under the Order. The dissent was of the view that the majority ignored the immediate consequences of the actions taken by the Health Unit in response to the pandemic. Historically comp time had always been granted as leave time. The dissent noted that the link between the Email offer to cash out accrued compensation time early and the ability to continue meeting the operational demands of the pandemic was clear. The option as set out in the Email was a minimally intrusive approach permitted under the Order.

[28] On remedy, the Award granted damages to be paid to the Union in an amount equal to an additional half day of wages for each of the fourteen members who received the early buy out of their accumulated comp time. The majority criticized the Health Unit for the step it took but acknowledged the unprecedented challenge the Health Unit faced, escalating throughout 2022, and finding that the Health Unit did, in many ways, act responsibly. The majority recognized that the Health Unit was pinned between the obligation to provide public service on an unprecedented scale and the need to do so under the Order. They acknowledged the widespread need for enhanced staffing as the general employee population was re-deployed to cover the vacuum left by those moved to the front lines. The majority concluded that even in those challenging circumstances, the Health Unit was required to address its financial concerns within the boundaries of the collective agreement and nothing in the Order excused or allowed it to do otherwise.

[29] The dissenting Board member found that even if he had agreed that the breach of the collective agreement was not permitted under the Order, he would have limited the remedy to a declaration, noting that the Health Unit acted reasonably and in good faith reliance on the powers in the Order as it understood them.

[30] After release of the Award the Health Unit commenced this application for judicial review, asking that the Award be quashed and seeking related relief.

Issues and Standard of Review

[31] The issues on this application do not turn on the interpretation of a collective agreement. There is no longer any issue that the offer made by the employer by its Email was a breach of the collective agreement. The Health Unit challenges the Award submitting as follows:

(1) that the Award is incorrect and unreasonable because it is based on a misinterpretation the Act and the Order; and

(2) that the award of damages is unreasonable.

[32] There is no dispute that the standard of review regarding the second issue – remedy – is reasonableness. For the first issue, the Health Unit submits that the standard of review is correctness, while the respondents submit that it is also reasonableness.

[33] The Health Unit submits that the first issue turns on interpretation issues that fall within a recognized exception to the presumption of a reasonableness standard. The Health Unit submits that as set out in Canada (Ministry of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 53-54 and 69, this is a case that relates to jurisdictional boundaries between two or more tribunals and raises questions of central importance to the legal system that require consistency and final and determinate answers.

[34] The Health Unit submits that the Act is general legislation providing for emergency measures in many contexts, only one of which is labour relations. Further, the Order is not limited to issues within the ambit of labour arbitrators. It applies to both unionized and non-unionized employees, and this health unit has both, as set out in the ASF.

[35] The Health Unit submits that the interpretative approach to emergency orders under the Act is of central importance to the Ontario legal system as a whole. The Health Unit puts forward a non-exhaustive list of emergency orders made during the pandemic, by way of examples.

[36] The Health Unit further relies on the recent decision of the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (“SOCAN”). In SOCAN, a majority of the Supreme Court recognized a new correctness category of the standard of review, when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.

[37] The Union submits that the interpretative issues are narrow questions of statutory interpretation and, while they are legal issues, they are not general questions of law. The Union points to the relatively short duration of the Order (about two years) and notes that it and the Act are applicable in Ontario only.

[38] The Union concedes that the issue is important but submits that it is not of central importance to the legal system as a whole because it is not a subject that arises in virtually every practice area.

[39] With respect to the SOCAN case, the Union relies on para. 17 in Vavilov, which provides that the reasons address all of the situations in which a reviewing court should derogate from the presumption of a reasonableness review. Yet, in Vavilov at para. 70, the court allowed for the possibility of more exceptions and in SOCAN, the Supreme Court has carved out a new exception. The Union further submits that the SOCAN exception arose in a different statutory context, which is distinguishable from this case.

[40] Beginning with the Emergency Management and Civil Protection Act, it is broad, general legislation that applies to many sorts of emergencies. It is of central importance. Consistency, and final and determinate answers, are necessary for questions of powers that may be exercised in an emergency. The correctness standard applies under Vavilov.

[41] The Order is obviously a narrower and more specific regulation, but it does apply to both unionized and non-unionized employees, and the Health Unit has both. Further, neither the Order, nor the Act that authorizes it, give exclusive jurisdiction to labour arbitrators, a relevant factor noted in SOCAN, at para. 29. As with SOCAN, the same issue could be answered differently through the two routes (i.e., the arbitration route and a lawsuit for a non-unionized employee). The analysis of the majority in SOCAN, at paras. 33-39, addresses issues that apply here as well, even though the overlap in the copyright regime is starker.

[42] We therefore conclude that the standard of review for the interpretation of the Order is also correctness. However, in the particular circumstances of this case, we would have reached the same decision if the standard of review had been reasonableness.

Issue #1: Interpretation of Act and the Order

[43] The Health Unit submits that the Award is in error due to the following:

(i) by failing to consider all relevant provisions of the Emergency Management and Civil Protection Act, including the entirety of s. 7.02 and s. 13.1; and,

(ii) by narrowly interpreting s. 2 of the Order despite its express broad wording.

[44] With respect to s. 7.02 of the Act, the Award refers to s. 7.02(1) and (2), which are broadly framed, and says that “neither state in anyway whatsoever that the financial consequences of those measures form any part of the consideration”. As regards, s. 7.02(3), the Award concludes that cost consequences are beyond the scope of the Order. Yet the Health Unit points out several subsections of s. 7.0.2 that expressly contemplate that there may be an impact on property rights and compensation (which are financial compensation) and were not addressed in the Award.

[45] While there are other subsections of s. 7.0.2 of the Act that refer to property and personal property, we find these subsections regarding the provision of services most pertinent:

7.0.2(4) [may make orders in respect of the following]

9. Using any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution.

10. Procuring necessary goods, services and resources.

11. Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources.

12. Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.

7.0.2 (5) An order under paragraph 12 of subsection (4) may provide for terms and conditions of service for persons providing and receiving services under that paragraph, including the payment of compensation to the person providing services.

[46] Section 7.0.2(4) therefore includes references to the use of, procuring of and authorizing the rendering of services, including terms and conditions of service such as the payment of compensation.

[47] Section 13.1(1) of the Act also speaks of compensation for a loss, although mainly in the context of real or personal property. It is therefore less relevant.

[48] Interpreting the Emergency Management and Civil Protection Act as a whole, the Act does speak to the financial consequences of measures, including the terms and conditions of payment of people providing services. The majority erred in law in its general statements suggesting that the authority to make orders under s. 7.0.2 of the Act did not extend to orders with financial consequences for employees who were providing services in response to an emergency.

[49] As relied upon by the Union, s. 7.0.2(3) of the Act does limit the intrusiveness of orders made under it. This does not, however, rule out any orders with financial consequences.

[50] However, for the most part the majority focused on the terms of the Order itself, rather the Act, in concluding that the Email was not authorized under the Order.

[51] Moving to the Order, the Health Unit submits that the majority erred in interpreting it too narrowly, given its broad overarching language. The Health Unit further submits that the majority treated the list in s. 3 as an exhaustive list even though s. 3 states that the list does not limit the generality of the section.

[52] The majority acknowledged that s. 2 of the Order was broad. Section 2 uses broad terms:

Boards of health shall and are authorized to take, with respect to work deployment and staffing, any reasonably necessary measure to respond to, prevent and alleviate the outbreak [COVID-19]. [Emphasis added.]

[53] The majority found that the costs of redeployment needed to be expressly mentioned in the list set out in s. 3 of the Order to override the collective agreement. In doing so, they relied on the Act, saying that such an interpretation would otherwise be intrusive in the context of the parties’ labour relations and the collective agreement that they had negotiated. This conclusion flowed in part from the legal error set out above. In addition, the majority failed to read s. 3 as a whole. Section 3 included the express proviso that the authorization under s. 2 of the Order was “despite” any “collective agreement”. The matters specifically mentioned in s. 3 are relevant to the interpretation of the Order, but do not preclude an interpretation that includes financial consequences.

[54] However, to be authorized under the Order, the measure had to be “reasonably necessary” to respond to the outbreak. The measure in question here is the offer in the Email to have a payout at straight time rather than using the accumulated comp time in the first quarter of 2022 or being paid out at 1 ½ time. The majority found that the evidence did not establish a concern that the cost consequences of adhering to the collective agreement would have had a direct impact on the provision of public health services. We see no reason to interfere with this finding of the majority, which was open to it on the evidence in the ASF. We therefore conclude that despite certain legal errors in the Award, the measure taken in the Email was not authorized under the Order. Other potential errors raised by the Health Unit therefore do not need to be addressed.

Issue #2: Remedy

[55] The Health Unit submits that the financial remedy ordered in the Award was unreasonable because there was no evidence of any loss by either the nurses or the Union and there needed to be a nexus between the breach and harm. The Health Unit further submits that a financial payment to the Union instead of the nurses is irrational and unintelligible.

[56] The majority’s remedy in favour of the Union accords with general principles of labour law under which a monetary remedy may be awarded to a union where the conduct at issue undermined the union’s position as the exclusive bargaining agent for these employees. The majority considered the minority view regarding the unprecedented challenge the Health Unit faced, escalating throughout 2022, and found that the Health Unit did, in many ways, act responsibly. In our view, the quantum determined by the majority was reached through a reasonable approach in the circumstances.

[57] In the result, the Health Unit has not established that the remedy for that breach was unreasonable.

Conclusion

[58] This application is therefore dismissed. As agreed between the parties, there shall be no order as to costs.

Backhouse J.

Stewart J.

Matheson J.

Released: January 25, 2023

CITATION: Simcoe Muskoka District Health Unit v. ONA, 2023 ONSC 284

DIVISIONAL COURT FILE NO.: DC-22-1289-JR

DATE: 20230125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BACKHOUSE, STEWART & MATHESON JJ.

BETWEEN:

THE SIMCOE MUSKOKA DISTRICT HEALTH UNIT

Applicant

– and –

ONTARIO NURSES’ ASSOCIATION, ELAINE NEWMAN, PORTER HERRERNAN and PHILIP ABBIK

Respondents

REASONS FOR decision

Released: January 25, 2023

[^1]: After the Order was made, the government passed the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, and the order was renewed under that new legislation. However, the change related mainly to the authority to renew or amend an order, rather than the statutory authority to make it in the first place and the parties have not argued that the change of legislation is material to the interpretation issues.