Ontario Nurses' Association v Central Community Care Access Centre

PEHT Case No: 0085-16-PE Ontario Nurses' Association, Applicant v Central Community Care Access Centre, Respondent

PEHT Case No: 0086-16-PE Ontario Nurses' Association, Applicant v Erie St. Clair Community Care Access Centre, Respondent

PEHT Case No: 0087-16-PE Ontario Nurses' Association, Applicant v Waterloo Wellington Community Care Access Centre, Respondent

PEHT Case No: 0088-16-PE Ontario Nurses' Association, Applicant v Central East Community Care Access Centre, Respondent

PEHT Case No: 0089-16-PE Ontario Nurses' Association, Applicant v Hamilton Niagara Haldimand Brant Community Care Access Centre, Respondent

PEHT Case No: 0090-16-PE Ontario Nurses' Association, Applicant v North East Community Care Access Centre, Respondent

PEHT Case No: 0091-16-PE Ontario Nurses' Association, Applicant v North Simcoe Muskoka Community Care Access Centre, Respondent

PEHT Case No: 0092-16-PE Ontario Nurses' Association, Applicant v North West Community Care Access Centre, Respondent

PEHT Case No: 0093-16-PE Ontario Nurses' Association, Applicant v South East Community Care Access Centre, Respondent

PEHT Case No: 0094-16-PE Ontario Nurses' Association, Applicant v South West Community Care Access Centre, Respondent

PEHT Case No: 1146-16-PE The Canadian Union of Public Employees and its Local 8916, Applicant v Erie St. Clair Community Care Access Centre, Respondent

BEFORE: Patrick Kelly, Alternate Chair, Carla Zabek and Carol Phillips, Members

APPEARANCES: Donna Walrond and Bev Mathers for Ontario Nurses’ Association; Michael Allen, Jane Corbet and Suzanne Leonard for the respondents

DECISION OF THE TRIBUNAL: April 11, 2017

1. These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”).

2. The application in Tribunal Case No. 1146-16-PE, involving Canadian Union of Public Employees, Local 8916 and Erie St. Clair Community Care Access Centre has been adjourned sine die at the request of those parties.

3. The remaining applications were the subject of two motions by the applicant, Ontario Nurses’ Association (“ONA”) which were heard by the Tribunal on March 24, 2017. The primary motion by ONA was for a finding by the Tribunal that the applications are rendered moot. The second motion is in the alternative. If the Tribunal dismisses the first motion, ONA seeks production of documents.

4. First, some context. The ONA applications arise from ten December 18, 2015 Orders by Review Officer Tiziana Isgro. The Orders determined that the respective respondents (“the employers”) had not maintained pay equity since a restructuring of Community Care Access Centres in 2007 with the introduction of Local Health Integration Networks (“LHINs”) in the Province. The Orders required them to take certain steps toward maintenance of pay equity using the proxy method of comparison, including providing the Review Officer and ONA with all documentation and information upon which they relied to maintain pay equity. However, the Review Officer found that the employers were not required to negotiate pay equity maintenance with ONA.

5. Following the issue of the Orders, the employers unilaterally identified a GNCS, gathered job information, analyzed the job information using the GNCS, and provisionally identified points and weightings to the job classes. The employers expect to finalize the results of their work in the very near future.

6. ONA filed these applications in April 2016. ONA agrees with the Orders insofar as they found that the employers had not maintained pay equity since 2007. However, ONA disputes the Officer’s finding that the employers are not required to negotiate. ONA contends that, due to the restructuring and reorganization of bargaining units and the creation of new jobs, as well as changes in the work of the key female job classes, it is entitled to negotiate a gender neutral comparison system (“GNCS”) and the application of the GNCS to determine the value of female job classes. In this regard, ONA relies upon sections 13.1 and 14.1 of the Act, which read:

13.1 (1) If an employer who is bound by a pay equity plan sells a business, the purchaser shall make any compensation adjustments that were to be made under the plan in respect of those positions in the business that are maintained by the purchaser and shall do so on the date on which the adjustments were to be made under the plan.

(2) If, because of the sale, the seller’s plan or the purchaser’s plan is no longer appropriate, the seller or the purchaser, as the case may be, shall,

(a) in the case of employees represented by a bargaining agent, enter into negotiations with a view to agreeing on a new plan; and

(b) in the case of employees not represented by a bargaining agent, prepare a new plan.

(3) Clause 14(2)(a), subsections 14.1(1) to (6) and 14.2 (1) and (2) apply, with necessary modifications, to the negotiation or preparation of a new plan.

(4) Repealed

(4.1) This section applies with respect to an occurrence described in sections 3 to 10 of the Public Sector Labour Relations Transition Act, 1997. For the purposes of this section, the occurrence shall be deemed to be the sale of a business, each of the predecessor employers shall be deemed to be a seller and the successor employer shall be deemed to be the purchaser.

(5) In this section,

“business” includes a part or parts thereof; (“entreprise”)

“sells” includes leases, transfers and any other manner of disposition. (“vend”)

14.1 (1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

(2) Clause 14(2)(b) and subsections 14(3), (4) and (5) apply, with necessary modifications, to the negotiations and to any amendment of the plan that is agreed upon.

(3) If the employer and the bargaining agent do not agree on an amendment before the expiry of 120 days from the date on which notice to enter into negotiations is given, the employer shall give notice of the failure to the Commission.

(4) Subsection (3) does not prevent the bargaining agent from notifying the Commission of a failure to agree on an amendment by the date referred to in that subsection.

(5) If the employer is of the view that, because of changed circumstances in the establishment, the pay equity plan for that part of the establishment that is outside any bargaining unit is no longer appropriate, the employer may amend the plan and post in the workplace a copy of the amended plan with the amendments clearly indicated.

(6) Subsection 15(2) and subsections 15(4) to (8) apply, with necessary modifications, in respect of an amended plan described in subsection (5).

(7) If a plan is amended under this section, the compensation adjustment for each position to which the amended plan applies shall not be less than the adjustment that would have been made under the plan before it was amended.

7. We now turn to ONA’s primary motion with respect to mootness. Since ONA filed these applications, new legislation, the Patients First Act, 2016 (“the PFA”), has been introduced and given Royal Assent. ONA takes the position that the PFA renders its ten applications moot, and that therefore the Tribunal should decline to inquire into these matters. The employers say that the disputes are not rendered moot, and that the Tribunal ought to hear the applications on their merits.

8. Part V.1 of the PFA effectively sets the stage for the elimination of the 14 CCACs operating in Ontario and the subsuming of all of their assets, liabilities, rights, obligations and employees by the 14 LHINs that share the same geographic area as the CCACs. The manner in which this occurs is as follows. Subsection 34.2 (1) provides the Minister of Health and Long-Term Care (“the Minister”) with a discretion make transfer orders. The provision reads:

34.2 (1) Despite anything in the Community Care Access Corporations Act, 2001, the Corporations Act or any other Act, but subject to the processes and requirements set out in this Part and any regulations made under this Part, the Minister may make an order,

(a) transferring all of the assets, liabilities, rights and obligations of a community care access corporation to the local health integration network that has the same geographic area as the community care access corporation; and

(b) transferring all of the employees of a community care access corporation to the local health integration network that has the same geographic area as the community care access corporation.

9. The remaining provisions of section 34.2 require that: the Minister give notice of her intention to make a transfer order; the transfer order specify a date on which it is to be effective; and the transfer order be brought to the attention of persons or entities affected.

10. Subsection 34.3 of the PFA describes the effect of a transfer order made by the Minister. The provisions of subsection 34.3 relevant for purposes of this motion read:

34.3 (1) If the Minister makes an order under subsection 34.2 (1),

(a) the local health integration network affected by the transfer assumes the operations, activities and affairs of the community care access corporation affected by the transfer, as of the date of the transfer; and

(b) all assets, liabilities, rights and obligations of the community care access corporation affected by the transfer, including contractual rights, interests, approvals, registrations and entitlements that exist immediately before the transfer date continue as the assets, liabilities, rights and obligations of the local health integration network affected by the transfer, and are transferred to the local health integration network affected by the transfer, without compensation.

(2) A conviction against, or ruling, order or judgment in favour of or against a community care access corporation affected by a transfer may be enforced by or against the local health integration network affected by the transfer.

(3) The local health integration network affected by a transfer shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against the community care access corporation affected by the transfer before the date of the transfer.

(4) A transfer of the assets, liabilities, rights and obligations of the community care access corporation to the local health integration network shall not constitute a change of control of the community care access corporation in respect of any asset, liability, right or obligation of the community care access corporation affected by the transfer.

11. Subsections 34.4(1) and (2) specify that the employees of the CCACs prior to the transfer to the LHINs become the employees of the LHINs as of the date of the transfer, and that their employment before and after the date of transfer is continuous.

12. Subsection 34.4(5) deems a transfer to be a sale of business under section 69 of the Labour Relations Act, 1995; and subsection 34.4(6) provides that a transfer is deemed to be a sale of business under section 13.1 of the Pay Equity Act.

13. Subsections 34.5(1) and (2) of the PFA deal with the dissolution of the CCACs. They read:

34.5 (1) The Minister may make an order to dissolve a community care access corporation that is affected by an order made under subsection 34.2 (1).

(2) If the Minister makes an order under subsection (1), the community care access corporation affected by the order is dissolved as of the date specified in the order, despite any requirement that would otherwise apply under the Community Care Access Corporations Act, 2001.

14. Finally, the PFA repeals the Community Care Access Centres Corporations Act, 2001, the legislation under which the current iteration of the CCACs were continued or incorporated, and it repeals the very definition of a CCAC in the Broader Public Service Accountability Act, 2010.

15. It appears undisputed that the Minister will make transfer orders shortly, albeit perhaps in a staggered fashion over the span of several months.

16. ONA contends that subsection 34.4(6) of the PFA, deeming a sale of business from the CCACs to the LHINs pursuant to section 13.1 of the Pay Equity Act, is dispositive of the central legal issue (whether the employers must negotiate with ONA) in these matters. ONA submits that, if these applications were to proceed on the merits, the only available relief would be a declaration by the Tribunal, which in itself would not be an effective remedy.

17. In support of its position, ONA referred us to the following authorities: Borowski v. The Attorney General of Canada, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Tamil Co-operative Homes Inc. v. Arulappah, 2000 CanLII 5726 (ON CA), [2000] O.J. No. 3372; Payne and Communications, Energy And Paperworkers Union of Canada v. Darcy and CUPE, [2002] O.J. No. 1450; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 et al., 2008 ONCA 265, [2008] 90 O.R. (3d) 451; Ontario English Catholic Teachers Association v. Brant Haldimand-Norfolk Catholic District School Board et al., [2001] O.L.R.D. No. 1159; Ontario Public Service Employees Union v. The Crown Rights of Ontario, 2010 CanLII 52643 (ON GSB); Welland County Roman Catholic Separate School Board v. Welland Unit of the Ontario English Catholic Teachers Association, [1992] O.L.A.A. No. 15; Ontario Public Service Employees Union v. The Crown in the Right of Ontario (Ministry of Government Services) 2009 CanLII 37958 (ON PEHT).

18. The employers submit that essentially all that the PFA achieves in terms of the impact on this application is the replacement of one employer with another. Everything – all rights, interests, liabilities and obligations – is preserved upon the effective date of the transfer. This includes the rights and obligations of the CCACs, their employees and the bargaining agents of those employees under the Pay Equity Act as of the date of transfer. Whatever steps the CCACs have taken in respect of pay equity maintenance, as of the date of transfer the LHINs will be accountable for those steps. If the maintenance exercise is not complete by the date of transfer, the applicable LHIN will have to oversee its completion.

19. The employers further submit that the deemed sale of business provisions in the PFA do no more than impose pay equity obligations on the LHINs going forward from the date of transfer. In the absence of necessity or an express or implied provision in the PFA, the PFA should not be interpreted to provide for retrospective relief, so as to confer upon ONA a right to negotiate pay equity maintenance going back to 2017.

20. The employers do not agree that the issues raised in the application are moot. They say the issues remain germane, regardless of the transfer. In the alternative, if the issues are moot, they still ought to be heard because they raise important considerations under the Pay Equity Act.

21. In support of its submissions, the employers referred us to the following authorities: Healey v. Quebec (Attorney-General), 1987 CanLII 80 (SCC), [1987] 1 S.C.R. 158; Srebot Farms Ltd. v. Bradford Co-operative Storage Ltd., 1997 CanLII 12310 (ON SC); Child’s Place v. Group of Anonymous Employees, [2002] O.P.E.D. No. 6; and Caressant Care Nursing Home v. LDSWU, 2005 CanLII 13791 (ON SCDC).

22. ONA’s second alternative motion has to do with production of documents. ONA requests that the Tribunal order the employers to produce all documents pertaining to the pay equity maintenance exercise that the employers have been carrying out unilaterally since the Orders were issued. ONA says that these documents are arguably relevant to the case on the merits.

23. The employers say that when the pay equity maintenance exercise is complete in the very near future, they will provide ONA with all the information upon which the exercise was based, in compliance with the requirement in the Orders that they do so. However, they contend that the Tribunal ought not to order production of those documents now because they are not, in fact, arguably relevant to the issue in these matters of ONA’s entitlement, if any, to negotiate. In support of that position, the employers rely upon the following authorities: Ontario (Ministry of Community and Social Services) v. Children’s Aid Society of City of Kingston and County of Frontenac, [1990] O.P.E.D. No. 29; Group of Employees v. Ontario (Management Board of Cabinet), 1998 CanLII 14726 (ON PEHT); and Port Hope (Town Hydro-Electric Commission v. Mills, [1999] O.P.E.D. No. 6.

Analysis and Conclusions

24. One of the leading cases on mootness is Borowski v. Canada (Attorney General), supra. In that matter, Joseph Borowski attacked the validity of abortion provisions of the Criminal Code as offending the Canadian Charter of Rights and Freedoms. Before his appeal reached the Supreme Court of Canada, that same Court issued its decision in R. v. Morgentaler (No. 2), 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, striking down the same Criminal Code provisions that were in issue in Borowski. The Court in Borowski concluded that the issues raised were rendered moot by the Morgentaller decision. In doing so, the Court explained the concept of mootness, and the two-step test that applies:

25. The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

26. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

27. We do not agree that the PFA renders moot the issues raised by the applications. The situation before us is not, for example, like that in Tamil Co-operative Homes Inc. v. Arulappah, supra, where the very dispute was settled by the parties prior to an application for judicial review before the Divisional Court; or in Payne and Communications, Energy and Paperworkers Union of Canada, supra, where the very legislative provision whose interpretation was directly in dispute was repealed by the time the appeal was before the Ontario Court of Appeal. Nor is the case before us analogous to the scenario in Brant Haldimand-Norfolk Catholic District School Board, supra, in which the bad faith bargaining allegations by the trade union against the responding parties were rendered moot by, among other things, the successful negotiation of a new collective agreement. In each of those cases there was no longer a live issue.

28. In the present matter, however, the mere sale of business provisions in the PFA do not answer the question of the extent, if any, of ONA’s right to negotiate. All that those provisions do is ensure that whatever rights, interests and obligations the CCACs, their employees and ONA had prior to the transfer date flow through into the applicable LHIN workplace after the transfer date. The LHINs simply step into the shoes of the CCACs for pay equity purposes. As the employers point out, nothing changes as a result of the transfer, except that the LHINs will occupy the role of the employer of the former employees of the CCACs. The sale does not resolve or otherwise put an end to the dispute with respect to ONA’s entitlement, if any, to negotiate matters that fall under the Pay Equity Act.

29. We are buttressed in this conclusion by subsection 34.3(3) of the PFA. It contemplates that, in any civil action commenced prior to the transfer in which a CCAC is a participant as a plaintiff or defendant, upon the transfer date, the applicable LHIN takes on the role that the CCAC formerly held. We are satisfied that an application brought under the Pay Equity Act constitutes a civil action within the meaning of the PFA. In the matters before us, therefore, the CCACs at the moment occupy the role of “defendant”, with ONA as “plaintiff”. Upon the date of transfer, ONA will continue as the plaintiff, but the CCACs will be replaced as the defendants by the applicable LHINs. The parties will have changed, but the dispute remains to be determined.

30. For these reasons, ONA’s motion is dismissed. Having reached that conclusion, however, we are concerned about the utility of continuing with the hearing on the merits on April 25 and 26, 2017 (and probably well beyond) in light of the likelihood that the CCACs will soon no longer exist and other parties, the LHINs, will take their place in the dispute. The transfer to the LHINs could provide the spark that leads to a voluntary settlement of the issues in these applications. More importantly, it seems to us that the LHINs inheriting this dispute should have the opportunity to defend the applications on the merits from the outset of the hearing on the merits if, following the transfers, there is still an appetite for litigation. In the alternative, we are of the view that the LHINs should at least be given notice of the applications and the opportunity to observe, if not participate, in the upcoming hearing.

31. The parties are urged to consult one another concerning the issues raised in the preceding paragraph. If they cannot resolve those issues, they are to file and deliver their written submissions on or before April 17, 2017, following which we will determine how to proceed with the applications.

32. We turn to ONA’s alternative motion for production. Although ONA submitted that the documents are arguably relevant, it did not explain how that is so. The issue in these matters is the extent, if any, of ONA’s right to negotiate certain aspects of pay equity. We fail to see how the documents that the employer has created pursuant to its unilateral pay equity maintenance review process sheds any light on that issue. It is not sufficient merely to say that documents are arguably relevant. It must be shown to be so. ONA has not demonstrated the arguable relevance of the documents. In any event, the employers have committed to providing all the information sought by ONA upon completion of the pay equity maintenance exercise in the very near future. We therefore decline to make a production order under these circumstances.

Dated at Toronto, Ontario this 11th day of April, 2017.

"Patrick Kelly" Patrick Kelly, Alternate Chair

"Carla Zabek" Carla Zabek, Member

"Carol Phillips" Carol Phillips, Member