December 2021 Healthcare Update

DOWNLOAD & SHARE

paperclip icon

COVID-19 Related Cases

a)   PPE Cases – Abuse of Process and Mootness

Hamilton Health Sciences v Ontario Nurses’ Association, (Misra, November 8, 2021)  2021 CanLII 111695 (ON LA)

The union filed two policy grievances alleging the hospital violated the collective agreement and OHSA by failing to provide adequate measures to ensure the safety of Registered Nurses (“RN”), failing to provide adequate personal protective equipment (“PPE”), failing to follow the precautionary principle, and failing to take every precaution reasonable in the circumstances arising because of the COVID-19 pandemic. The parties had previously agreed to bifurcate the hearing of the grievances. In respect of the first issue (“Issue 1”), the parties would address the scientific evidence regarding the risk of aerosol and asymptomatic/pre-symptomatic transmission of COVID-19. If the Union was successful in all or in part on the first issue, the second issue (“Issue 2”) would be whether the hospital had breached its obligations.

The hospital sought a preliminary dismissal of the first issue following the Divisional Court’s dismissal of the union’s judicial review application. The union had asked the Court to quash or amend the Chief Medical Officer of Health’s (“CMOH”) Directives #1 and #5 regarding the use of N95 masks. The Divisional Court had dismissed ONA’s application, finding that the Directives considered the precautionary principle and the possibility of aerosol transmission. Directive #5 had also evolved to the point where its was the judgement of the nurse alone to decide absolutely whether they believed an N95 mask was necessary. The hospital argued that in light of the Divisional Court’s decision confirming Directive #5 as “reasonable”, Issue 1 was outside the arbitrator’s jurisdiction to decide. The union was seeking to relitigate the question of whether COVID-19 was transmitted through droplets or aerosols, which the hospital maintained was moot and an abuse of process.

Arbitrator Misra dismissed the hospital’s motion finding that the issue before the Divisional Court was the CMOH’s powers, and the principles which guided his exercise of those powers as manifested in Directives #1 and #5. The issue before her was whether the hospital, as the employer, had met its obligations under its collective agreement with the union and the legislated obligations under the OHSA. Furthermore, the Court did not decide on the factual issue about the risk of aerosol transmission of COVID-19. Rather, it decided that it did not have to decide that matter. It would therefore not be an abuse of process to permit the union to litigate Issue 1. However, to the extent that the Divisional Court made a factual finding regarding asymptomatic transmission of COVID-19, that finding could not be relitigated.

Ontario Nurses Association v Cambridge Memorial Hospital, (Mitchnick, November 25, 2021) 2021 CanLII 120378 (ON LA)

As in the Hamilton Health Sciences case above, the union alleged the hospital violated the collective agreement, OHSA and the Canadian Charter of Rights and Freedoms by failing to provide adequate personal protective equipment (“PPE”), particularly N95 masks. Th employer sought a preliminary ruling that the grievance was moot given the Divisional Court decision. Arbitrator Mitchnick dismissed the hospital’s preliminary motion, citing Arbitrator Misra’s decision on the same issue in Hamilton Health Sciences v Ontario Nurses’ Association. While the Court had determined that Directive #5 was reasonable, it was open to the union to seek more than the minimum that the Court found necessary, particularly where there was scientific evidence not available to the union at the time it field its material with the Court. However, he noted that the union should present evidence that is likely to produce a “material change” in how risks are to be recognized and responded to. Lastly, the union had to identify with clarity, what additional steps, beyond compliance with Directive #5, that it believed OHSA and the collective agreement demands.

b)   Cases about Sick Leave Compensation for COVID Isolation

Trillium Health Partners v Canadian Union of Public Employees Local 5180, (Hayes, November 12, 2021) 2021 CanLII 113532 (ON LA)

The grievors challenged the hospital’s denial of sick leave compensation for the three days during which they were required to self-isolate prior to personal surgery. The isolation requirement was imposed as a precautionary measure due to the COVID-19 pandemic. The hospital argued that the grievors were unable to work because of a precautionary measure taken due to a public health crisis, not because they were unable to work on the dates in question as required by HOODIP. Arbitrator Hayes found that the grievors could work but for the exceptional self-isolation precaution caused by the pandemic; on the dates for which sick leave was claimed, they were not sick at all. The grievances were dismissed.

Ontario Nurses’ Association v Humber River Hospital, (Jesin, November 25, 2021) 2021 CanLII 119793 (ON LA)

The union filed a policy grievance arguing that all employees required to isolate under Covid protocols should be paid their regular pay during their isolation. The arbitrator considered whether full-time, part-time, and casual employees were entitled to compensation when 1) the employee was symptomatic or tested positive for COVID-19; and 2) when the employee was absent from work, asymptomatic and did not test positive but was required to isolate because of travel, exposure, public health guidance or an instruction from their employer. Arbitrator Jesin found that under the collective agreement, sick pay was only available to employees who were “ill” and were entitled to benefits under the collective agreement. An employee required to isolate was not “ill” and was not entitled to a sick pay benefit unless they tested positive or had symptoms of COVID-19. However, if an employee was required to isolate under COVID protocols and tested positive during their isolation, they were entitled to compensation from the commencement of the isolation, not the positive test, and should be paid accordingly if eligible for sick benefits.

Other Cases of Interest

a)   Case about Failure to Provide Particulars

Baycrest Centre For Geriatric Care v Ontario Nurses’ Association, (Gedalof, October 26, 2021) 2021 CanLII 105256 (ON LA)

The grievor was terminated for benefit fraud. When the grievor failed to comply with the arbitrator’s production order, the employer brought a motion to dismiss the grievance. At that time, the grievor claimed she could not comply with the production order because she was out of the country for medical issues, with no access to internet. The arbitrator denied the employer’s motion and extended the deadline to produce the documents in question. The grievor was also required to particularize and substantiate the basis upon which she was unable to comply with the order. The grievor failed to produce the documents or the information required and the employer brought a second motion to dismiss the grievance. Arbitrator Gedalof noted that the documents and information that the grievor had been ordered to produce were essential to the litigation. The grievor’s ongoing failure to comply with the order to produce documents and information, combined with the failure to comply with the order to explain why she she had failed to do so, warranted dismissal of the grievance.

b)   Case about Production of Video Evidence

Centre for Addiction and Mental Health v Ontario Nurses’ Association, (Bernhardt, November 1, 2021) 2021 CanLII 107776 (ON LA)

This was a preliminary decision regarding the production of documents. The grievor was terminated from her position as a part-time nurse at the hospital in April 2021 due to the hospital’s concerns about her actions when she was tending to two patients. The union asked the hospital to produce the medical chart of one of the two patients who was involved in the incident leading to the grievor’s termination as it would help explain the grievor’s interactions with the patient. The union also objected to the hospital’s introduction of video evidence of the interaction between the grievor and the two patients as such evidence was subject to provisions of the Mental Health Act and could only be disclosed through a determination of the Divisional Court. At the hearing, the parties agreed that the hospital would produce anonymized records of any interactions between the grievor and the patient, along with the Admission Notes for the patient. Arbitrator Bernhardt then determined that the video evidence was admissible subject to certain requirements (the bodies of all patients in the video would be anonymized digitally; no initials were to be used to identify any of the three patients; and distribution would be limited to only those necessary for the purposes of the hearing).

c)    Case about Termination for Insubordination

Humber River Hospital v National Organized Workers’ Union, (Johnston, November 6, 2021) 2021 CanLII 112472 (ON LA)

The grievor was a long-service employee with over 20 years of service with the hospital when he was terminated from his position as a porter for violating various policies. The parties agreed to focus on the main allegation against the grievor, that he failed to follow a requirement to remain on the floors between patient transfers. CCTV footage showed the grievor sitting in the hospital’s cafeteria for extended periods of time, even after a manager approached him and advised that he was not permitted in that area between transfers. The grievor had a lengthy disciplinary record, including a written warning, a three-day suspension, and a six-month suspension imposed as a substitution of penalty for a previous termination. Arbitrator Johnston found that the grievor was aware of the policy and that his testimony stating otherwise was not credible. The grievor’s loitering in the cafeteria after being advised of the policy and his failure to attend at his manager’s office the next day as instructed was insubordinate. Given the grievor’s considerable disciplinary record, his conduct represented a culminating incident justifying termination. The grievance was dismissed.

d)   Case about Denial of Union Leave

Ontario Nurses’ Association, Local 001 v Brant Centre Long Term Care Residence, (Wacyk, November 12, 2021) 2021 CanLII 114046 (ON LA)

This was a preliminary decision regarding the production of particulars. The union alleged the employer unreasonably denied the grievor one day of Union Leave. The employer argued that at the time of the grievor’s request it was experiencing significant staffing shortages. Had it approving the grievor’s request, it would have had to replace her with agency staff and would have violated the minimum staffing requirements of the Long-Term Care Home Act. This constituted an undue hardship allowing it to deny the request for leave as set out in the collective agreement. The employer had provided particulars, but the union sought further particulars including a summary of agency hours; dates for the past two years when agency nurses had been used; the cost of an agency staff employee; and the care home’s budget for agency staff. Arbitrator Wacyk found no nexus between the denial of the grievor’s time-off request and the union’s requests regarding the employer’s past use of agency staff. The union’s motion for production and particulars was denied.

e)    Case about Shift Premiums while on Administrative Leave

Royal Ottawa Health Care Group v Canadian Union of Public Employees, Local 942, (Albertyn, November 18, 2021) 2021 CanLII 116395 (ON LA)

The grievance considered whether an employee who regularly worked the night shift and had been placed on an administrative leave, was entitled to their shift premium during the leave. The union argued that the employee had always received the shift premium and should continue to receive it when on an administrative leave. The arbitrator found that Article 15.09 of the collective agreement provided for shift and weekend premiums “for all hours worked” within stipulated periods. This meant that the employee had to be at work, or be required to work, or have the expectation of work, during the period stipulated in Article 15.09 to be paid the premium. When an employee was on an administrative leave, they did not work, nor were they required to work, nor did they expect to work, during that period. Accordingly, the employee was not entitled to be paid the shift premium while on an administrative leave. The grievance was dismissed.