Eastern Regional Integrated Health Authority Applicant And: Association of Allied Health Professionals First Defendant And: the Labour Relations Board Second Defendant, 2020 NLSC 108

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Eastern Regional Integrated Health Authority v. Association of Allied Health Professionals , 2020 NLSC 108 Date : August 6, 2020 Docket : 202001G2931 Between: Eastern Regional Integrated Health Authority Applicant And: Association of Allied Health Professionals First Defendant And: the Labour Relations Board Second Defendant Before: Justice Vikas Khaladkar On Judicial Review From: A Decision of The Labour Relations Board, File # 5614 dated the 22 day of May, 2020. Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: June 18, 2020 July 2-3, 2020 Appearances: Twila E. Reid Appearing on behalf of the Applicant

Dana K. Lenehan, Q.C. Appearing on behalf of the First Defendant Megan S. Reynolds Appearing on behalf of the Second Defendant Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v. Canada (Attorney General) , 1994 SCC 117; Sodexo Canada Limited v. Hotel Employees and Restaurant Employees International Union, Local 779 , 2019 NLSC 192 ; Jones v. Bay Roberts (Town) , 2017 NLTD(G) 134 STATUTES CONSIDERED: Judicature Act , R.S.N.L. 1990, c.

J-4 REASONS FOR JUDGMENT khaladkar, J. : INTRODUCTION [ 1 ] The Applicant has requested a stay of proceedings of a decision of the Second Defendant, The Labour Relations Board (LRB), ordering the Applicant to move the position of Disability Case Manager (DCM) to a bargaining unit. The stay of proceedings is to remain in effect pending the outcome of the judicial review of the LRB’s decision. [ 2 ] The parties agreed that in order to give effect to the LRB’s decision, the Applicant must terminate all 13 of the existing DCMs.

If forced to do so the Applicant will have to provide the terminated employees payment in lieu of notice. In the event that the Applicant is eventually successful in its challenge of the LRB decision, the payments to terminated DCMs will not be recoverable. It is estimated that termination payments will exceed $591,000 for the 13 employees affected. [ 3 ] The LRB decision was arrived at by a three member panel.

The dissenting member, the only lawyer on the panel, would have held that the DCM positions were management positions. [ 4 ] The DCMs are responsible, inter alia , for handling long term sick leave, workers’ compensation and accommodation requests for all of the employees in the employ of the Applicant. ISSUE [ 5 ] Is it appropriate to enter a stay of proceedings in this matter? THE LAW [ 6 ] The Court has the power to issue a stay of proceedings of an Order of the LRB pending judicial review pursuant to s. 97 of the Judicature Act , R.S.N.L. 1990, c.

J-4 . [ 7 ] The test to be applied in relation to an application for a stay of proceedings is well established and was set out by Cameron, J. (as she then was), as follows: 1. On a preliminary assessment of the merits of the case, is there a serious issue to be dealt with? 2. Will the Applicant suffer irreparable harm if the stay of proceedings is not granted? 3. Does the balance of convenience favour the granting of the relief? [ 8 ] This is the test that was adopted by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) , 1994 SCC 117 and has been widely followed by Canadian Courts.

ANALYSIS [ 9 ] I read the affidavit of Regina Coady, Director of Human Resources for the Applicant, and heard her cross-examination evidence that the DCMs affected by the LRB’s decision have been put in place since March, 2017. She testified that the DCM positions

are difficult to fill, and that it is difficult to retain employees in the DCM positions. The positions are filled by a diverse, multidisciplinary set of qualified persons that include social workers, nurses, kinesiologists and occupational therapists. [ 10 ] Ms. Coady had direct knowledge of, and involvement with, the persons occupying DCM positions within her organization.

I accept her evidence in its entirety – it was not conjectural, but was factually based and credible. [ 11 ] I also read the affidavit of Pamela Toope, who is the Executive Director of the First Defendant, and I heard her cross- examination evidence. Unlike Ms. Coady, much of Ms. Toope’s evidence was based on information that others had given to her or her own

interpretation of the LRB’s decision. In some instances the source of her information was not clear. Where there is a conflict in the evidence of Ms. Coady and Ms. Toope, I accept Ms. Coady’s evidence. SERIOUS ISSUE TO BE TRIED [ 12 ] The LRB’s decision was not unanimous. The dissenting board member wrote an eleven page dissent. The dissenting board member is a lawyer. The fact that a reasoned dissent exists weighs in favour of the argument that there is a serious issue requiring adjudication. [ 13 ] The application is neither frivolous nor vexatious.

It merely seeks to maintain the status quo during the time that it will take for the judicial review application to be heard and decided. The affected DCM positions have been in place for over three years. [ 14 ] I find that the Applicant has met the onus of establishing that there is a serious issue to be tried in this matter. WILL THE APPLICANT SUFFER IRREPERABLE HARM IF THE INJUNCTION IS NOT GRANTED? [ 15 ] Ms. Coady testified that the cost of terminating the existing DCMs would exceed $591,000.00. The First Defendant would not cover that cost if the judicial review decision is not in its favour.

Nor can it be expected that the First Defendant be required to do so. Under those circumstances the Applicant would lose $591,000, a significant sum of money, even if it is successful in its judicial review application. The monetary loss is not compensable. [ 16 ] We are in the midst of a global pandemic. The DSMs are attempting to manage their caseload, consisting of managing long term sick leaves, workers’ compensation claims and accommodation requests for all of the Applicant’s employees under what must be trying circumstances.

The DSM positions are difficult to fill and it is a challenge to maintain the employees that are recruited into those positions. The termination of the DSM positions can be expected to cause a disruption to the Applicant’s organization. That disruption could well result in irreparable harm. BALANCE OF CONVENIENCE [ 17 ] McGrath, J. in Sodexo Canada Limited v. Hotel Employees and Restaurant Employees International Union, Local 779 , 2019 NLSC 192 , at paragraph 154 referred to that portion of a prior decision of the Court in Jones v.

Bay Roberts (Town) , 2017 NLTD(G) 134 at paragraph 85 that described the third prong of the RJR-MacDonald test as a balance of inconvenience. The Court did so because it is necessary to determine which of the parties would suffer the greater harm from the granting or refusal of the remedy pending a decision on the merits. [ 18 ] In Jones v.

Bay Roberts and in Sodexo Canada Limited the Courts held that where the application of the balance of inconvenience test leads to no clear resolution, the Court will normally seek to preserve the status quo. [ 19 ] The balance of inconvenience in this case clearly favours the Applicant. It is the 13 DSMs who would lose their jobs as a result of the enforcement of the LRB’s order.

It is the thousand or so employees whose cases are being worked upon by the DSMs who would, at the very least, experience a disruption in the services provided to them while the Applicant attempted to backfill the positions to comply with the LRB’s ruling.

It is the general public who would also experience a potential fallout from losing a cohort of professionals who are, in part, managing the Applicant’s response to the Covid-19 pandemic. [ 20 ] I find that the balance of convenience analysis favours the granting of a stay of proceedings to the Applicant. [ 21 ] In the final analysis, therefore, I find that the Applicant meets all three branches of the RJR-McDonald test.

I order that the decision of the LRB in this matter be stayed until the application for judicial review is heard on its merits and adjudicated. [ 22 ] The costs of this application shall be costs in the cause. _____________________________ vikas khaladkar Justice