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Arbitrator rules arbitration not suspended by COVID emergency powers


By Willow Petersen

In a recent win for healthcare workers, labour arbitrator Randi Abramsky determined that she had jurisdiction to hear a grievance filed by CUPE, Local 5852 regarding the exclusion of nurse externs from the bargaining unit.

In Scarborough Health Network v Canadian Union of Public Employees, Local 5852, the Hospital brought a preliminary motion to dismiss the grievance for lack of jurisdiction, relying on Ontario Regulation 74/20: Work Deployment for Certain Health Services Providers. This Regulation was introduced as part of the government of Ontario’s use of emergency powers and orders in response to the COVID-19 pandemic.

The Regulation provides that health service providers are authorized to take, with respect to work deployment and staff, “any reasonably necessary measure” to respond to, prevent and alleviate the outbreak of the coronavirus for patients, including by redeploying staff to another health service provider. The Regulation also authorizes health service providers to implement redeployment plans, change the assignment of work (including assigning non-bargaining unit employees to perform bargaining unit work), and employ extra part-time or temporary staff including for the purposes of performing bargaining unit work. According to the Regulation, these measure can be implemented by health service providers without complying with the provisions of a collective agreement.

The subject of the Hospital’s preliminary motion was section 3(vi) of the Regulation, which states that a health service provider may “Suspend, for the duration of this Order, any grievance process with respect to any matter referred to in this Order.” After the Union filed the grievance, the Hospital took the position that it would not be hearing the grievance on the basis that the temporary nurse extern staff were hired under the Emergency Management and Civil Protection Act during the pandemic.

The Union referred the grievance to arbitration pursuant to section 49 of the Labour Relations Act. Under section 49(2) of the Act, a party does not have to exhaust the grievance process to refer a matter to arbitration. A party only has to wait 30 days after the grievance was brought to the attention of the other party before requesting that the Ministry of Labour appoint an arbitrator.

The Hospital argued that the arbitrator had no jurisdiction to hear the grievance because the Hospital’s hiring of nurse externs was made under Regulation 74/20. Under section 3(vi), the Hospital may suspend any grievance process with respect to any matter referred to in the Order. The Union acknowledged that the Hospital had the right to suspend the grievance process but argued that the grievance was now at the arbitration stage, not the grievance process stage, and, as a result, that section of the Regulation did not apply.

The arbitrator accepted the Union’s argument that there is a recognized and well-known distinction between the “grievance procedure” or “grievance process” and the “arbitration process”. The arbitrator concluded that the Regulation did not override section 49 of the Labour Relations Act because to do so would require much clearer language in the legislation. The Regulation in question states only that the “grievance process” may be suspended.

The arbitrator found that clearer language would be needed to suspend the arbitration process given the principles established decades ago in Re S.E.I.U., Local 204 and Leisureworld Nursing Homes, Ltd., 1997 CarswellOnt 830 (ON Div. Ct.), and amendments to various provisions of the Labour Relations Act with respect to the two distinct processes. The arbitrator found that, if the legislature intended to empower the Hospital to suspend the arbitration process, it should have acted on that intention with clear language.

The arbitrator concluded she has jurisdiction to hear the grievance under section 49 of the Labour Relations Act, which is not usurped by section 3(vi) of Regulation 74/20.

The decision was also followed by Arbitrator Laura Trachuk in Ontario Public Service Employees Union, Local 101 v. Windsor Regional Hospital, who found that the arbitration process was not suspended by Regulation 74/20 and that she was properly appointed under section 49 of the Labour Relations Act.