Eastern Regional Integrated Health Authority Applicant And: Association of Allied Health Professionals First Respondent And: THE Labour Relations Board Second Respondent, 2022 NLSC 15

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Eastern Regional Integrated Health Authority v. Association of Allied Health Professionals , 2022 NLSC 15 Date : January 31, 2022 Docket : 202001G2931 Between: Eastern Regional Integrated Health Authority Applicant And: Association of Allied Health Professionals First Respondent And: THE Labour Relations Board Second Respondent Before: Justice Vikas Khaladkar On Judicial Review From: A Decision of The Labour Relations Board, File # 5614 dated the 22 nd day of May, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 14, 2022

Summary: The Application was granted and the decision of the Board was quashed. Costs to the Applicant.

Appearances: Twila E. Reid Appearing on behalf of the Applicant Catherine D. Quinlan Appearing on behalf of the First Respondent Megan S. Reynolds Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Baker v. Canada (Minister of Citizenship and Immigration) , 1999 SCC 699; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 STATUTES CONSIDERED: Public Service Collective Bargaining Act, R.S.N.L. 1990, c.

P-42 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Applicant, Eastern Regional Integrated Healthy Authority (“Eastern Health”) seeks an Order in the nature of certiorari quashing a majority decision of The Labour Relations Board (the “Board”) that ruled that disability case managers are employees within the meaning of section 2(1) (

i) of the Public Service Collective Bargaining Act , R.S.N.L. 1990, c. P-42 (the “ Act ”). [ 2 ] The First Respondent, Association of Allied Health Professionals (the “Union”), had filed an application with the Board seeking to have the disability case managers included within the Union’s bargaining unit. [ 3 ] Eastern Health objected to the composition of the Board and, in particular, objected to the Vice-Chairperson remaining on the panel on the grounds that there was an apprehension of bias since the Vice-Chairperson had been formerly employed as Executive Director at St.

Patrick’s Mercy Home. [ 4 ] While there was no formal application made by Eastern Health, the Board treated the issue seriously and asked counsel for Eastern Health to specifically outline its concerns relating to the Vice-Chairperson.

Eastern Health did not provide any specific instances or examples of conflict relating to the matter before the Board. [ 5 ] The Board held that the Vice-Chairperson was not in a real or apprehended conflict of interest and provided the parties a written decision outlining its reasons. [ 6 ] The Board heard from a number of witnesses over the course of six hearing days, reviewed documentary evidence provided to it by the parties, heard the submissions of counsel and arrived at a decision. [ 7 ] Disability case managers are persons who were hired by Eastern Health to monitor the recovery progress of employees who are absent from the workplace for health related reasons.

The disability case managers evaluate their clients’ progress to determine if a new, or revised, return to work program is necessary. [ 8 ] The disability case manager job classification was provided to Eastern Health by the Government of Newfoundland and Labrador. The persons fulfilling the function of disability case managers prior to the creation of this job classification were classified as

Occupational Therapist II and were members of various bargaining units. The bargaining units included persons who were either registered nurses, kinesiologists, occupational health workers or others.

The Government of Newfoundland and Labrador determined that disability case managers should be deemed management positions. [ 9 ] The majority of the Board decided that the disability case managers were employees within the meaning of the Act and that they did not fall within any excluded categories – namely persons who exercised management functions, were employed in a confidential capacity in relation to matters relating to labour relations or who provided advice to the employer in relation to matters involving the development or administration of policies or programs. issues [ 10 ] Was Eastern Health denied natural justice as a result of the Board’s determination that the Vice-Chairperson did not need to recuse herself on the basis of apprehended bias? [ 11 ] What is the appropriate standard review? [ 12 ] Did the Board breach the appropriate standard of review? analysis Was Eastern Health denied natural justice as a result of the Board’s determination that the Vice-Chairperson did not need to recuse herself on the basis of apprehended bias? [ 13 ] Eastern Health brought up the issue of apprehended bias in relation to the Vice-Chairperson on September 19, 2018 when asked to confirm the composition of the panel prior to setting hearing dates. [ 14 ] On September 25, 2018 counsel for Eastern Health asked the Vice-Chairperson to confirm the nature of her employment dealings with respect to human resource matters involving Eastern Health during her tenure as Executive Director of St.

Patrick’s Mercy Home. [ 15 ] On September 28, 2018 the Board asked counsel for Eastern Health to specifically outline its client’s concerns as they related to the Vice-Chairperson. [ 16 ] On October 4, 2018 counsel for Eastern Health responded concerning the Vice-Chairperson’s possible dealings with Eastern Health’s staff but did not provide any further particulars. [ 17 ] On October 10, 2018 the Vice-Chairperson provided an overview of her employment history in response to the matters that had been raised by counsel for Eastern Health.

The Vice-Chairperson advised that she had, twenty years earlier, been the Minister of Health. Subsequently, she had worked with St. Patrick’s Mercy Home as its Executive Director until her retirement in December, 2016. She indicated that she had not been the recipient of any information that would provide her with any specialized or confidential information relating to the matter before the Board. She indicated that of the 350 or so employees of St.

Patrick’s Mercy Home only one person belonged to a bargaining unit belonging to the Union – and that person was a music specialist. [ 18 ] The Board again requested counsel for Eastern Health to present any specific concerns to the Board within six weeks. [ 19 ] On November 20, 2018 counsel for Eastern Health requested that the Vice-Chairperson recuse herself based on less than a two-year break from her employment at St.

Patrick’s Mercy Home. [ 20 ] On December 7, 2018 the Board wrote to the parties and advised that Eastern Health has an obligation to identify specific factual details supporting its position related to the bias issue.

The Board requested that these details be provided on or before January 11, 2019. [ 21 ] On January 11, 2019 Eastern Health reiterated its position that the Vice-Chairperson recuse herself and refused to provide any specific information on the basis that it would “violate Eastern Health’s solicitor-client privilege, common law and statutory privacy rights of certain counsel and former employees”. [ 22 ] On February 5, 2019 the Board issued an Order confirming the makeup of the Board.

Eastern Health requested reasons for the decision, which were provided on May 31, 2019. [ 23 ] The Board noted, in its decision, that the Vice-Chairperson had had previous experience on both sides of the labour relations spectrum – as President of Treasury Board and as President of the Provincial Nurses’ Union. She had also been the Minister of Health and Executive Director of St. Patrick’s Mercy Home – both of which would be considered management roles. [ 24 ] The test for what constitutes a reasonable apprehension of bias was affirmed in Baker v. Canada (Minister of Citizenship and Immigration) , 1999 SCC 699.

The test is objective. It asks whether an informed person, viewing the matter realistically and practically, and having given the matter serious thought would conclude that the decision-maker is likely, on a balance of probabilities, to decide the matter unfairly. [ 25 ] Counsel for Eastern Health asserted before the Board that the Vice-Chairperson had previously worked with sick and injured persons and/or consultants to assist employees to return to the workplace. [ 26 ] Even if one assumes that the allegation is substantiated, I have to ask myself the question, “So what?”.

The Vice-Chairperson had been employed as the Executive Director of a nursing home. She was the person in charge of a work force of 350 people. Obviously she would have been engaged in some fashion in assisting her employees to return to work after illness or accident. She would have been doing so from the management perspective. The Union saw no conflict in the Vice-Chairperson assuming her seat on the Board. I cannot

understand why Eastern Health would view the Vice-Chairperson’s previous experience as an impediment. It is not. If anything it would give her a unique perspective into the issues with which she was going to be confronted. [ 27 ] There is no merit to the argument that the Vice-Chairperson ought to have recused herself on the basis of bias – real or apprehended. [ 28 ] An ancillary issue arises, and that is one of due process.

The question becomes whether the Board had the ability to rule on the question of real or apprehended bias in the absence of an application from Eastern Health. [ 29 ] Eastern Health brought up the issue of bias with the Board in an informal manner. The Board proceeded to address the issue in an informal manner. During the course of determining whether or not there was substance to Eastern Health’s allegations, the Board asked for further and better particulars on a number of occasions.

Eastern Health saw fit to refrain from providing any detailed information. [ 30 ] In order for a party to demand observance with the rules of natural justice, the party must itself observe the rules of natural justice. It is not fair to make an allegation of real or apprehended bias and, then, fail to provide any information supporting that allegation. [ 31 ] Eastern Health argues that the Board made a decision before it had an opportunity to tender evidence or make formal legal arguments. It says that it was unable to make an application concerning recusal because the Board had already ruled on the matter.

That position is not substantiated by the record. [ 32 ] The parties were repeatedly asked by the Board to provide the information that would sustain the allegation of breach of natural justice. Again, and again, Eastern Health refused to provide the information. The Board was justified in making a decision after having exhausted its efforts to obtain the supporting evidence. Eastern Health was within its rights to request reasons for the Board’s decision.

The Board complied and provided detailed written reasons. [ 33 ] Eastern Health, having been content to proceed informally as it did, cannot then complain that its formal rights to a hearing were denied. Eastern Health was given the opportunity to make representations, made representations, received written reasons for the decision that was ultimately made. It cannot complain that its rights to natural justice were denied. [ 34 ] From September 19, 2018 to January 11, 2019 Eastern Health had the opportunity to make a formal application to have the Vice-Chairperson recuse herself from the file.

During that period of almost five months, Eastern Health appears to have been content to deal with the issue informally. Eastern Health elected to refrain from providing any particulars that would justify the Vice-Chairperson recusing herself from sitting on the hearing of the matter. The only objection, therefore, was the Vice-Chairperson’s former occupation as Executive Director of St. Patrick’s Mercy Home. [ 35 ] It should be noted that individuals are appointed to sit on tribunals convened by the Board precisely because they have experience – either in a management capacity or in a labour capacity.

The Vice-Chairperson in this case had experience in both spheres at a very high level – as a Minister of Health, President of Treasury Board, Executive Director of a long-term care facility and as President of the Nurse’s Union. She has precisely the type of qualifications one would expect the Chair of a labour relations tribunal to possess. [ 36 ] I cannot fault the Board for deciding that there was no necessity for the Vice-Chairperson to recuse herself. And I cannot find any deficit in the process that was employed.

If a party wants to avail of a formal hearing mechanism, then it is incumbent upon that party to make a formal application. What is the appropriate standard review? [ 37 ] The parties agreed that the standard of review is reasonableness. There is a presumption that the standard is one of reasonableness on account of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 .

The exceptions to the reasonableness standard set out in Vavilov are inapplicable to the case at hand. [ 38 ] Vavilov instructs that a reviewing Court is constrained to determine whether the administrative decision-maker’s decision, and the rationale for making it, was unreasonable.

In doing so the reviewing Court must pay careful attention to the decision-maker’s reasoning process as evidenced by its written reasons. [ 39 ] Vavilov , at paragraph 85 further instructs that: … a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. The reasonableness standard requires that a reviewing court defer to such a decision.

Did the Board breach the appropriate standard of review? [ 40 ] The Union sought a declaration to have 13 newly created disability case manager positions declared to be within the Union’s bargaining unit.

It argued that the newly created positions were similar to the Occupational Therapist II positions that had been eliminated by Eastern Health. [ 41 ] Eastern Health argued that the new positions included the exercise of management and supervisory functions as well as dealing with matters relating to labour relations, which are confidential in nature. [ 42 ] Eastern Health is governed by the provisions of the Act . By virtue of that legislation, all employees of Eastern Health are entitled to organize and participate in Union activity.

Certain employees are exempted from participation. [ 43 ] Paragraph 2 of the Act provides as follows:

(i) "employee" means a person employed by … (vii) a regional health authority established under the Regional Health Authorities Act , but does not include a person … (xiii) who is employed as a manager or supervisor or who, in the opinion of the board, exercises management or supervisory functions, (xiv) who, in the opinion of the board, is employed in a confidential capacity in matters relating to labour relations, or (xv) who, in the opinion of the board, provides advice to the employer in relation to the development or administration of policies or programs; [ 44 ] By virtue of the operation of the Act , “employees” of Eastern Health are eligible members of a bargaining unit unless they fall into one, or more, of the exceptions outlined in subsections (xiii), (xiv) or (xv). [ 45 ] The Board heard from a number of witnesses who outlined the responsibilities that their jobs as Occupational Therapist II and/or Disability Case Manager entailed.

The evidence tendered was detailed and canvassed whether or not their positions required them to exercise management or supervisory functions, were in receipt of confidential information relating to labour relations and whether or not they were engaged in providing advice to Eastern Health in relation to the development or administration of policies or programs. [ 46 ] In the Board’s decision they referred to its previous decisions at paragraph 72: In Re: Newfoundland (Treasury Board) [1992] Nfld. L.R.B.D. No. 25, Re: Newfoundland Hospital and Nursing Home Association [1992] Nfld. L.R.B.D.

No. 18), the following was stated: “There are several decisions of this Board that have addressed the issue of management exclusions.

Management functions are determined in part by examining the individual’s duties and responsibilities to determine whether he or she exercises effective control and authority over employees supervised or whether he or she make decisions or effective recommendations that materially affect the economic lives of those employees.” [ 47 ] At paragraph 73 of its decision, the Board stated as follows: … the Board will consider the organizational structure of the employer and the proposed numbers of management and bargaining unit employees.

The Board will also consider the extent to which the person does “hands on” work that would be considered bargaining unit work.

With respect to decisions or effective recommendations in the areas that materially affect the economic lives of employees, the Board will consider the following areas of responsibility: (1) hiring, including participation in a selection committee and the extent of input into the decisions; (2) discipline and discharge, including the role played with respect to the various levels of disciplinary action including oral warning or counselling, written warning, suspension or discharge; (3) evaluation of performance, including an examination of the consequences of the evaluation on salary increases, promotion, training opportunities, and other advancement opportunities; (4) leave requests, including the ability to authorize absence from work for sick leave, bereavement or family responsibility; (5) promotion or transfer, including any involvement in a committee that recommends a decision; (6) overtime authorization, including the authority to direct an employee to work outside the regular hours of work; (7) directing the employees in the manner of performance of their duties, and (8) assignment of job duties. [ 48 ] The majority of the Board analyzed the duties of disability case managers.

It found that disability case managers are not involved in hiring. They do not evaluate the performance of employees and are not involved in the discipline of employees. [ 49 ] The Board found that where disability case managers have the ability to discharge an employee on account of innocent absenteeism, they do not do so unless they have, first, consulted with human resources, the unit manager, the Union and the physician. Typically a request is also made for a legal opinion.

The evidence identified one case in which a disability case manager had terminated an employee for innocent absenteeism. [ 50 ] The majority of the Board held that disability case managers do not approve requests on account of bereavement, family or annual leaves – which are approved by the employee’s manager. Absences on account of illness are to be reported by employees to their unit managers. [ 51 ] The majority of the Board held that disability case managers manage employees’ paid and unpaid leave in accordance with Eastern Health’s Human Resources policies and multiple collective agreements.

The majority found that many persons senior to

disability case managers are involved with, and work together, to direct and support an employee’s return to work. [ 52 ] The majority of the Board found that disability case managers are not involved in the promotion or transfer of employees.

The dissenting member held that disability case managers are involved in the transfer of employees in circumstances where they are unable to return to their original jobs. [ 53 ] The Board found that disability case managers are not involved in authorizing or directing overtime work. [ 54 ] The majority of the Board held that disability case managers do not supervise, or monitor, the performance of employees.

The dissenting member found that disability case managers do monitor the performance of employees while they are engaged in a return to work program. [ 55 ] The entire Board held that disability case managers have no role in the assignment of job duties for uninjured employees, but may have input in the assignment of duties for employees who are injured. [ 56 ] All of these job functions are indicia that the Board members viewed to determine whether or not disability case managers perform duties that are of a managerial or supervisory nature. [ 57 ] The Board unanimously held that disability case managers were not employed in a confidential capacity in relation to labour relations.

That finding is logical, defensible and in accordance with the evidence that was elicited at the hearing. [ 58 ] The Board unanimously found that although disability case managers came into possession of confidential information concerning the employees who they were monitoring, such information was not such as to jeopardize Eastern Health’s bargaining position. [ 59 ] At paragraph 104 of its decision the majority, the Board said: On the evidence, the information may be personnel information, but it did not have the additional elements of involvement with strategy or proposals that have usually been required in the jurisprudence for exclusion from the bargaining unit.

Without this additional element, the cases take the approach that the impact on the employer’s interests is not sufficient to counterbalance denying employee’s access to statutory bargaining rights. [ 60 ] The Board found that disability case managers do not provide advice to Eastern Health in relation to the development or administration of policies or programs.

The Board found that while disability case managers provide statistical information to management in connection with their caseloads, this involvement could not be classified as a significant contribution to the development of policies or programs. [ 61 ] Most of the Board’s reasoning is logical, rational and sensible.

At one juncture, however, it is my opinion that the Board erred and this was in connection with the disability case manager’s ability to terminate employees for innocent absenteeism. [ 62 ] The term innocent absenteeism refers to an employee’s inability, through no fault of their own, to return to work on account of disability.

The evidence before the Board was that disability case managers had the authority to terminate an employee’s employment for innocent absenteeism – that is when it was no longer possible to provide accommodation to the employee to help their return to work in any capacity. [ 63 ] While it may be true that disability case managers are required to consult before they “pull the pin” on the employment relationship, that is not unusual in today’s employment climate. Managers routinely consult with human resource officers, and get legal opinions, before taking action.

It is a collaborative exercise. [ 64 ] The ability to terminate a fellow employee, even though it may be sparingly exercised, gives rise to a conflict of interest. Union members cannot be firing fellow union members. [ 65 ] The Board fell into error when it suggested the following at paragraph 139: The conflict of interest sought to be avoided is one that exists between the work responsibilities owed to the employer and one owed to the union as an instrument of collective bargaining.

This conflict can be avoided by reinstating the duties and responsibilities previously held by a bargaining unit prior to the establishment of the Disability Case Manager classification, to a bargaining unit. [ 66 ] The Board recognized that there was an untenable conflict of interest because of the power vested in disability case managers to terminate employees who could no longer be accommodated.

In the words of subsection 2(i)(xiii) of the Act , disability case managers were persons who exercised managerial or supervisory functions. [ 67 ] The majority of the Board erred in suggesting that the conflict could be resolved by reverting to the status quo ante . The Board has no authority to dictate how an employer should organize its place of employment.

If disability case managers fall outside of the definition of employee because they fit into one of the recognized exceptions, then they cannot be members of any bargaining unit. [ 68 ] The dissenting Board member stated, at paragraph 16 in relation to disability case managers: In circumstances of innocent absenteeism, the Disability Case Manager is responsible for determining whether an Eastern Health has met its legal duty to accommodate the employee up to the point of undue hardship.

When the Disability Case Manager has determined the employer’s duty has been met the Disability Case Manager terminates the employee’s employment relationship with Eastern Health. Notwithstanding that the Disability Case Manager may seek and consider legal advice prior to deciding to terminate an employee’s employment, it is the Disability Case Manager that has actual autonomy to decide and communicate his or her decision to the impacted employee.

[ 69 ] The dissenting Board member was of the opinion the disability case managers did performance evaluations in relation to employees’ adherence to their return to work plan. The dissenting Board member opined that a negative evaluation could have adverse economic impact on the worker. Similarly, the dissenting Board member noted that disability case managers do assign work duties to persons who are off work due to illness.

It is part of the return to work planning process. [ 70 ] It is clear that disability case managers can engage in actions that will have a potential detrimental impact on the economic well-being of an employee – be that by way of terminating their employment on account of innocent absenteeism or reassigning job duties because the employee is unable to work at their previous job. conclusion [ 71 ] I have found that the majority of the Board erred when it determined that disability case managers did not exercise management or supervisory functions. The decision is not one that is internally coherent.

It does not follow a rational chain of analysis because it ignores a material fact that would have produced the opposite result. [ 72 ] The Application is allowed. The decision of the Board is quashed with costs to the Applicant under Column III of the

Schedule of Costs. _____________________________ Vikas Khaladkar Justice