) ) TORONTO EAST GENERAL HOSPITAL Applicant – v. –, 2013 ONSC 522

CITATION : Toronto East General Hospital v. Ontario Nurses’ Association, 2013 ONSC 522 DIVISIONAL COURT FILE NO.: 338/12 DATE: 20130122 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ. BETWEEN: ) ) TORONTO EAST GENERAL HOSPITAL Applicant – and – ONTARIO NURSES’ ASSOCIATION and MICHAEL BENDEL, ARBITRATOR Respondents )) )) )) )) )) Daniel Wong and Rebecca Reasner , for the Applicant Kate A. Hughes and Nicole J.

Butt , for the Respondent, Ontario Nurses’ Association ) ) ) HEARD at Toronto: January 22, 2013 ASTON J. (orally) [ 1 ] The hospital’s judicial review application challenges the arbitration award of March 30, 2012.

The Arbitrator held that the hospital had violated the Collective Agreement it has with the Ontario Nurses’ Association in changing the status of Registered Nurse Dyalsingh (“the Grievor”) from full-time to part-time employee when in order to accommodate her disability she moved from her full- time position in the Special Care Nursery to two part-time positions, one of which is outside of the bargaining unit for the purposes of this arbitration. [ 2 ] The Grievor is a registered nurse at the hospital. From 2001 to 2009 she was employed full-time in the Special Care Nursery.

During the summer of 2009 she became totally disabled. She was able to return to work that fall but could only resume her physically demanding former position for four hours a day. The hospital accommodated her by allowing her to do temporary administrative work for the remaining four hours a day. [ 3 ] On February 1, 2010, the Grievor began working four hours a day in an administrative position, referred to as the BirthNet Position, while continuing her Special Care Nursery position for the remaining four hours a day.

The parties agreed that for the purposes of this arbitration, the BirthNet Position is a non-bargaining unit position. [ 4 ] There is a separate ongoing grievance on the issue of whether nurses employed within the BirthNet Position are outside the ONA bargaining unit. [ 5 ] In February 2010, the Grievor requested that the accommodation of her disability be continued on a permanent basis and the hospital agreed. However, on March 22, 2010, the hospital changed her status to part-time employee under the Collective Agreement. This change disentitled the Grievor to significant salary and employee benefits.

It adversely affected her compensation, seniority, scheduling, extended health benefits, disability benefits, shift and weekend premiums and vacations. [ 6 ] The union filed this grievance alleging that the hospital had violated both the Collective Agreement and the Human Rights Code in changing her status from full-time to part-time.

[ 7 ] The matter proceeded on an Agreed Statement of Fact. Standard of Review [ 8 ] Though the parties are at odds on what standard of review is appropriate on the application of the Human Rights Code and on whether the Arbitrator made a jurisdictional error, there is no question that an arbitrator’s

interpretation of a Collective Agreement is reviewed on a reasonableness standard. [ 9 ] This requires that the decision be assessed with regard to whether it is “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The standard focuses on whether the decision is “justified, transparent and intelligible.” (See Dunsmuir). [ 10 ] For the reasons which follow, we reject the hospital’s submission that the Arbitrator exceeded his jurisdiction by deciding an issue that was not submitted to him and which is before another arbitrator.

Moreover, the Arbitrator did not reference the Human Rights Code in coming to his conclusion, nor did he address that alternative claim by the Union, so it is unnecessary for us to determine the appropriate standard of review in that context. Analysis and Conclusion [ 11 ] It is important to recognize at the outset that this decision is particular to the unique circumstances of this Grievor. The Arbitrator was not engaged in an abstract issue or a pure question of law.

This case engages the decision-maker in an interpretive analysis of the Collective Agreement reflecting a particular facts set out in the Agreed Statement of Fact for a particular employee. [ 12 ] The issue in this case relates to one person’s compensation entitlement following an accommodation of her disability. The Grievor is satisfied with the accommodation offered to her except for the financial consequences of her reclassification as a part-time nurse. [ 13 ] The employer’s classification decision is not dictated by the terms of the Collective Agreement. Under

Article 19.08(

b) of the Central Agreement, it could have established a special classification for this particular employee. It chose not to do so, but instead chose to classify her in two separate positions, one inside the bargaining unit and one outside the bargaining unit, at least for the purposes of this grievance. [ 14 ] Under the Human Rights Code , the employer would have borne the onus of proving why resort for

Article 19.08(

b) would have constituted accommodation to the point of undue hardship. However, quiet apart from any consideration of the duty to accommodate, the Arbitrator did not exceed his jurisdiction or consider extraneous evidence by examining the nature of the Grievor’s duties in the BirthNet Program.

The employer’s authority to classify or reclassify an employee cannot be allowed to undermine that employee’s rights under the Collective Agreement, quite apart from the employer’s duty to accommodate that person’s disability. [ 15 ] The Arbitrator specifically refrained from deciding in general whether qualified nurses in the BirthNet Program as Clinical Systems Analysts are within the bargaining unit. He recognized that to be an issue in the other ongoing arbitration.

He did not purport to establish any precedent for other employees when he decided the narrow issue of whether the employer violated the Collective Agreement rights of this particular employee, Ms. Dyalsingh. [ 16 ] The Scope Clause in the Collective Agreement specifically excludes from the ONA bargaining unit certain categories of positions, even when the persons in those positions are “engaged in a nursing capacity.” The parties to this dispute agreed that for the purposes of this grievance, the BirthNet Position in which the Grievor works half her hours is not included in the ONA bargaining unit.

The hospital also contends that the Arbitrator’s examination of the Grievor’s qualifications, duties and responsibilities in the BirthNet Position was unreasonable and effectively amended the Collective Agreement to provide that all nurses engaged full-time in a nursing capacity are included in the full-time Bargaining Unit, notwithstanding a specific exclusion of their positions. We disagree. The employer never argued this particular Grievor was within one of the explicitly excluded positions.

The special circumstances governing the duty to accommodate the disability of this particular Grievor do not necessarily extend to other employees. This Grievor can continue her prior qualification as a full-time nurse in the bargaining unit. [ 17 ] This was not a policy grievance, the determination of which would have general application. It was a grievance by an individual and a determination of her particular rights.

If this decision has any implication for others, it is limited to employees with disabilities who have been accommodated in similar fashion. [ 18 ] The Arbitrator’s conclusion meets the test of reasonableness. The ultimate decision is a reflection of the special factual circumstances including the employer’s overarching duty of accommodation and its ability to fulfill that duty by reclassifying her under

Article 19.08(

b) rather than by adopting the reclassification that it did. The decision falls within the range of reasonably acceptable outcome. [ 19 ] The application is dismissed. [ 20 ] I have endorsed the Record on behalf of the panel: The application is dismissed for oral reasons given and recorded. The applicant is to pay costs fixed at $10,000 all inclusive. ASTON J.

HERMAN J. RAY J. Date of Reasons for Judgment: January 22, 2013 Date of Release: January 25, 2013 CITATION : Toronto East General Hospital v. Ontario Nurses’ Association, 2013 ONSC 522 DIVISIONAL COURT FILE NO.: 338/12 DATE: 20130122 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ. BETWEEN: TORONTO EAST GENERAL HOSPITAL Applicant – and – ONTARIO NURSES’ ASSOCIATION and MICHAEL BENDEL, ARBITRATOR Respondents ORAL REASONS FOR JUDGMENT ASTON J. Date of Reasons for Judgment: January 22, 2013 Date of Release: January 25, 2013