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THE COLLECTIVE AGREEMENT - Application - Interpretation

Thursday, October 19, 2017 @ 8:40 AM  


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Application by Ottawa Hospital for judicial review of an arbitral award arising from a grievance filed by the respondent union. The issue determined at the arbitration was whether physicians’ assistants (PAs) were part of the “paramedical bargaining unit” as was defined in the collective agreement. The arbitrator concluded the PAs were within the scope of the bargaining unit. The hospital argued the arbitrator’s decision was unreasonable because the arbitrator undertook the wrong analysis in that he determined the PAs should have been within the scope of the unit rather than whether they “were” within the scope of the unit. The hospital also argued the conclusion was inconsistent with the factual findings that demonstrated PAs had greater authority and scope of duties than those in the paramedical bargaining unit, in that they were “medical” and not “paramedical” employees. Last, the hospital argued that the definition of “paramedical” employee the arbitrator applied was overbroad and risked sweeping in other employee categories that already had a separate union or bargaining unit representation.

HELD: Application dismissed. The arbitrator’s decision was reasonable. The arbitrator confined himself to the task at hand (interpretation of the collective agreement) and did not stray into application of policies in determining the scope of the paramedical bargaining unit. The arbitrator’s decision reflected a careful and nuanced assessment of the evidence and law. The arbitrator’s findings that related to the PAs authority and duties did not undermine his ultimate conclusion. His conclusion that PAs were “paramedical” employees was consistent with the plain and ordinary meaning of “paramedical”, the parties own practice, the collective agreement language and the jurisprudence. There was no danger that medical residents or nurses would fall into the paramedical collective bargaining unit. The arbitrator’s interpretation of the definition was not unreasonable.

Ottawa Hospital v. Ontario Public Service Employees Union, Local 464, [2017] O.J. No. 4867, Ontario Superior Court of Justice - Divisional Court, R.M. Raikes, M.G.J. Quigley and W.M. Matheson JJ., September 21, 2017. TLD-October162017008