) ) THE THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE Applicant – v. –, 2013 ONSC 1896

CITATION : Thunder Bay Regional Health Sciences Centre v. Ontario Nurses’ Association 2013 ONSC 1896 DIVISIONAL COURT FILE NO.: 512/12 DATE: 20130328 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HILL, HERMAN AND LEDERER JJ. BETWEEN: ) ) THE THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE Applicant – and – THE ONTARIO NURSES’ ASSOCIATION Respondent )) )) )) )) ))) Ian R.

Dick , for the Applicant Shaun O’Brien , for the Respondent ) ) ) HEARD at Toronto: March 28, 2013 LEDERER J. (orally) [ 1 ] The Centre brings this application for judicial review of an arbitration award of Arbitrator Cummings, dated August 13, 2012. The sole issue to be determined by Arbitrator Cummings was whether the termination of the grievor’s employment amounted to double jeopardy or double discipline for the same misconduct. [ 2 ] The grievor had previously been suspended for her involvement in the assault of a young patient at the Centre.

The Centre alleged that four months after suspending the grievor it obtained “new information” that indicated that the grievor’s role in the assault had been more active than it initially thought. It thus terminated the employment of the grievor. Arbitrator Cummings held that instead of “new information”, the Centre’s subsequent decision to terminate Ms. Russell’s employment was really based on a re-analysis of the information that it already had at the time of the suspension.

She thus held that the grievor’s termination of employment amounted to double jeopardy. [ 3 ] The parties agree that the standard of review is reasonableness. The applicant submits that as a result of the discovery of new evidence, it developed an understanding that Ms. Russell had been less than forthright during the investigation that was carried out. Based on this, it concluded that Ms.

Russell was involved in the mistreatment of the patient and whereas it had earlier suspended her for ten days, decided that her employment should be terminated. [ 4 ] The basis for the termination was the treatment of the patient. It was not Ms. Russell’s failure to be forthright. This assertion simply colours the initial acceptance of her credibility and the failure of the hospital to assess the evidence and conclude that she was more actively involved. [ 5 ] The decision of the Arbitrator speaks to the treatment of the patient.

If it fails to review in more detail any issue of a lack of forthrightness, it is because this was not the reason for the determination, it was the catalyst for a reconsideration of the role Ms. Russell played in the abuse of the patient. [ 6 ] In circumstances such as this, the idea that Ms. Russell lacked forthrightness cannot be separated from what amounts to a reconsideration of the role she played in the interaction with the patient.

[ 7 ] In effect, as a result of what was said at the grievance hearing, the hospital went back and reconsidered its conclusion as to what took place. It is the role the hospital now believes Ms. Russell played in the mistreatment of the patient that caused her employment to be terminated. [ 8 ] This all serves to confirm the approach the Arbitrator took in coming to her decision. She assessed the evidence and reasonably concluded the information gleaned from the original investigation provided a basis on which the hospital could have found that Ms.

Russell played an active role in the mistreatment of the patient. [ 9 ] There was no new evidence, just a reassessment of the information. What follows from this is that a lack of forthrightness was not the rationale for the determination; it was the abuse of the patient. This is double jeopardy. Ms. Russell was disciplined twice for the same incident. [ 10 ] The reasons, when read as a whole, demonstrate the Arbitrator’s understanding that the allegation of a lack of forthrightness cannot be separated from the allegation that Ms. Russell was directly involved in the assault of the patient.

This understanding is reflected in the decision of the Arbitrator which is, in every sense, reasonable. It falls clearly within the range of available options. These reasons are sufficient for the purpose of judicial review. HILL J. COSTS [ 11 ] On behalf of the panel, I have endorsed the Application Record, “Application is dismissed per Reasons dictated by Lederer J. Agreed costs to the Respondent in the amount of $7,500, all inclusive.” HILL J. HERMAN J. LEDERER J. Date of Reasons for Judgment: March 28, 2013 Date of Release: May 8, 2013 CITATION : Thunder Bay Regional Health Sciences Centre v.

Ontario Nurses’ Association 2013 ONSC 1896 DIVISIONAL COURT FILE NO.: 512/12 DATE: 20130328

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HILL, HERMAN AND LEDERER JJ. BETWEEN: THE THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE Applicant – and – THE ONTARIO NURSES’ ASSOCIATION Respondent ORAL REASONS FOR JUDGMENT LEDERER J. Date of Reasons for Judgment: March 28, 2013 Date of Release: May 8, 2013