Ontario Shores Centre for Mental Health v. Ontario Public Service Employees Union,

• Jurisdiction: Ontario
• Judge: Jennings, Pardu and Harvison Young, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Citation: 2011 ONSC 6115,(2011), 287 O.A.C. 8 (DC)
• Date: 28 September 2011

Ont. Shores Mental Health v. OPSEU (2011), 287 O.A.C. 8 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. DE.031

Ontario Shores Mental Health Centre (applicant) v. Ontario Public Service Employees Union (respondent)

(399/10; 2011 ONSC 6115)

Indexed As: Ontario Shores Centre for Mental Health v. Ontario Public Service Employees Union

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Pardu and Harvison Young, JJ.

December 8, 2011.

Summary:

The essential issue in a number grievances was whether certain periods of leave ran concurrently with layoff notices provided for in the collective agreement. The adjudicator held that the concurrent operation of the leave periods with the four month layoff period provided in the collective agreement could be, but not necessarily would be discriminatory. The employer sought judicial review.

The Ontario Divisional Court dismissed the application.

Labour Law - Topic 9863.1

Public service labour relations - Job layoffs and other work reduction schemes - Notice of layoff - The essential issue in a number grievances by the Ontario Public Service Employees Union was whether certain periods of leave (maternity, short term and long term disability) ran concurrently with layoff notices provided for in the collective agreement (CA) - The CA provided that "... Employees shall be entitled to four (4) months written notice of permanent or long term layoff.... After receipt of such written notice, affected employees will have a period of up to fourteen (14) calendar days to indicate to the Centre their choice of options as outlined below. The Centre agrees to meet with the affected employee(s) within fourteen (14) calendar days after it has received written notification of the employee's choice of entitlement, in order to verify his/her choice." - The adjudicator found that the the purpose of the four month period was to "provide an employee with a period of time to consider their financial position, and to plan their future" - The Ontario Divisional Court stated that, according to the CA, the 14 day period operated at the beginning of the layoff period - It was clearly reasonable for the arbitrator to conclude that the scheme under the collective agreement contemplated that an employee would make specific decisions during the initial 14 day period, and then have the longer period for broader planning purposes, where relevant - See paragraphs 19 to 23.

Labour Law - Topic 9863.1

Public service labour relations - Job layoffs and other work reduction schemes - Notice of layoff - The essential issue in a number grievances by the Ontario Public Service Employees Union was whether certain periods of leave (maternity, short term and long term disability) ran concurrently with layoff notices provided for in the collective agreement (CA) - The CA provided that "... Employees shall be entitled to four (4) months written notice of permanent or long term layoff.... After receipt of such written notice, affected employees will have a period of up to fourteen (14) calendar days to indicate to the Centre their choice of options as outlined below. The Centre agrees to meet with the affected employee(s) within fourteen (14) calendar days after it has received written notification of the employee's choice of entitlement, in order to verify his/her choice." - The adjudicator found that an employee's rights to be free from discrimination could be violated if the layoff period ran concurrently with a period of leave if the individual employee was incapable of making meaningful use of the layoff notice by virtue of illness or disability - The Ontario Divisional Court concluded that, in finding that the concurrent operation of the leave periods with the four month layoff period could be, but not necessarily would be discriminatory, the adjudicator was interpreting the collective agreement and did not make any findings of fact in the absence of an evidentiary foundation - See paragraph 39.

Labour Law - Topic 9863.1

Public service labour relations - Job layoffs and other work reduction schemes - Notice of layoff - The essential issue in a number grievances by the Ontario Public Service Employees Union was whether certain periods of leave (maternity, short term and long term disability) ran concurrently with layoff notices provided for in the collective agreement (CA) - The CA provided that "... Employees shall be entitled to four (4) months written notice of permanent or long term layoff.... After receipt of such written notice, affected employees will have a period of up to fourteen (14) calendar days to indicate to the Centre their choice of options as outlined below. The Centre agrees to meet with the affected employee(s) within fourteen (14) calendar days after it has received written notification of the employee's choice of entitlement, in order to verify his/her choice." - The adjudicator concluded that the concurrent operation of the leave periods with the four month layoff period provided in the collective agreement could be, but not necessarily would be discriminatory - The employer sought judicial review - It argued that the adjudicator failed to deal with the general question raised by the policy grievance of whether issuing layoff notices when an employee was on any form of leave under the collective agreement was discriminatory - The Ontario Divisional Court rejected the argument - The adjudicator determined that the answer to the policy depended on the circumstances - The adjudicator's conclusions left no scope for a "yes" or "no" answer to whether the grievances should be allowed - See paragraphs 36 to 38.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 9].

Keeprite Workers' Independent Union et al. v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), refd to. [para. 11].

Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology et al. (2006), 212 O.A.C. 131; 80 O.R.(3d) 1 (C.A.), leave to appeal refused (2006), 361 N.R. 400; 228 O.A.C. 396 (S.C.C.), refd to. [para. 21].

Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267; 77 O.R.(3d) 543 (C.A.), refd to. [para. 21].

R. v. H.S.B., [2008] 3 S.C.R. 32; 380 N.R. 130; 260 B.C.A.C. 122; 439 W.A.C. 122; 2008 SCC 52, refd to. [para. 37].

Canadian Recording Industry Association v. Society of Composers, Authors and Music Publishers of Canada et al. (2010), 413 N.R. 176; 2010 FCA 322, refd to. [para. 37].

McCormick v. Greater Sudbury Police Service (2010), 259 O.A.C. 226; 2010 ONSC 270 (Div. Ct.), refd to. [para. 37].

Counsel:

Ian R. Dick, for the applicant;

David Wright, for the respondent.

This application was heard on September 28, 2011, by Jennings, Pardu and Harvison Young, JJ., of the Ontario Divisional Court. The following reasons for judgment of the Divisional Court were delivered by Harvison Young, J., on December 8, 2011.