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Home My WebLink About1993-2161.Kennedy-McPeake.95-05-26 -,--- .t~--.-~... - ~ --\ oY' 1 . I U -' ' ONTARIO EMPLOYlS DE LA COURONNE .~ ~ ,""" lO-~ CROWN EMPLOYEES DE L 'ONTARIO ey-oJ-V J ~ ltff1 I 1111 GRIEVANCE COMMISSION DE (Jl\M. ~o.l' , , ()rv1 \~ 'rlFfi SETTLEMENT REGLEMENT ( ,BOARD DES GRIEFS ISO DUNDAS STREET WEST SUITE 2100. TORONTO. ONTARIO. MSG lZS TELEPHONEITI!LI!PHONE (416) 326-1388 -..IlII- -..... ISO. RUE gIJt;lDA~~I W IREAU 2100. TORONTO (ONTARIO', MSG 1ZS FACSIMILEITELECOPIE (416) 326-1396 REceIVED MAY 2 9 1995 GSB # 2161/93 OPSEU # 948072-948073 PUBLIC SERVICE XN THE MATTER OF AN ARBITRATION APPEAL BOARDS Under , THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ( OPSEU (Kennedy/McPeake) Grievor - and - The Crown in Right of Ontario (Ministry of Health) I Employer BEFORE M. Gorsky Vice-Chairperson M. Lyons Member F. Collict Member FOR THE M. McFadden GRIEVOR Counsel Koskie & MinSky . Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 18, 1994 April 24, 1995 .~ -----------'.- --------- I. D EC I S ION I .!,. , '.,< " There were three grievances, before us 1.1- that ofe Kennedy, da teed Dee 2, 1993' ; 2,) that ,ofM McPeake~da.:ted P~c 2, 1993, and - f ( .....1 3) a policy grievance dated March 7, 1994 It was agreed that all o'f t;l1e f l3'rievances raised the issues, ,ar;ising same out of the r Employer requiring Ambulance Officers employed by it (such as the Gri~vors) to respond alone to a First Response Code 4 call, being ~ the highest priority call - r - On November 7, 1994, i after the firs~ .qate of hearing in this ( (July 1'8, 1994) , another panel of ,the Bqa.:rd issued a decision case involving the same issues as were before us (Armes, 123/93 \ - - (Kaplan) ) denying the grievance r r ,. - ~, When the ~hearing of this' ca.:se resumed, on April 24, 1994, counsel for the parties agreed .that the on:j.y issue that would be _ pursued ~y the Un~on was. ,one that, was also before the Armes panel -/ Were certain ,provis,ions of the. Ambulance Act R S 0 1990, cap ., , - ( A 19, and certain of its Regulations General (R R 0 1990, Reg t .19 ), ' and certain provisions of 'th~e Highway Traffic Act - ..:.~ '" -.;. - R SO i990, c'ap H- 8 ,breached a?a r~sul t of the Employer's , r - I - requiring Ambulance Offipers, ac.~i.ng as Emergency Medical Attendants, to respond alone to Code 4 calls as described in Armes, at pp 2-5:? I Code 4 is the highest priority call, and indicates either an unknown or life threatening situation Upon receiving a Code 4 call, drivers are generally expected to respond as quickly as possible with lights and sirens ~. - . --- - --- - --- -- ,---- ----- - - -- - - ,- , -------- ~ - --~- -.----- - ~ 2 on When responding to Code 4 calls, drivers may cautiously exceed the speed limit, and may also go \ through red lights after making a complete stop I Ambulance Officers do tnot know wl:1at they are g,oi~g to find when they arrive in response to a Code 4 call If I an Ambulance Officer a,rr,ives on tpe scene in an ambulance, but he or she is alone, he or she is not permitted to transpoJ;'t a patie~t t9 th~ hospit:a1 as both - a driver and an attendant must be present in order to do so - ;' The pdlicy in effect on February 24, 1993 was as follows RESPONSIBILITIES It is the responsibility of each employee, while on duty, to respond to' a call in an ambulance, emergency support unit or emergency response unit as a first response wl1en required. / PROCEDURES - A General 1 Employees responding alone in an ambulance as a first response' will ensure NOT IN SERVICE signs are prominently displayed in the front windshield and rear window' 2 An employ.ee respond:i;ng on a first response should keep in mind his/her own personal safety (as with all ea~ls) If '~threat pr possible threat to health and safety exists, the employee will remain in a safe" area until appropriate back-up has arrived ~ 3 The employee responding will provide casualty care as required and remain, at the scene unt~l patient car~ responsibilities are transferred to appr-opriate pers,onnel (~ e ,ambulance crew, ,"-, doctor) Counsel for the Union, in the c~se before us, referred to the following sections of the Ambulance Act and its Regulations '~ ~,.... \. . \ ~ \ 3 Sectjon 1 of that Act provides "ambulance'" 'means a conveyance u~ed or intended to be used in -an ambulance serviee for, the, transportation of ~ persons' reqt,lirring.'" .med:ical. attention,_, or under medical care; '- ,;, ( - "~mbulance' service!' ;means a ser,vice held out to the - public .as~ available ',for the conveyance of persons ,.... requiring, medic~l at'tention or under medical care and includes' 'the ,service of 'dispatching ambulances; Section- -S2~ of the Regulatiens 'provides _ x, (~~ - -Every 'operator shaB.. ensure that each ambulance of the, operator that responds to a call for ambulance services is s~affed' with, a Crew of at least two emergency medical attendants each of whom holds the appropriate qUalifications set, out!: ,in section 7 Sectibnr41 of the Regulations. provides - An operator shall not refuse and shall nor permit ,- ...- any emplb}(,ee to.. refp.se t9 provide ambulance service unless directed or permitted to do so by a dispatcher r' Section 43 of the Regulations provides ' r Subject to section 44, no opera.tor may use or permi t the use of an ambulance for any purpO$e not directly related to the provisi.on of ambulan,ce.' services .. " ,^ Sections 44(6) (a) and (b) of the Regulations provide 44. (6) Every operator shall ensure, (a) that no dispatcher who is the operator's ;. -employee gives any instructions to a member of )" - an ambulance crew whicn 9.r,~ contrary to this section; and ~ (b)' that each member of. an. ,ambU::lance crew in the operator's ambulance s~rvi~~ complies with this section Sections 54(1), (2) and (3)' of the Regulations provide 54 -,( 1-) No person may drive anambulance.t,hat is not available for the provision of ambulance service unless a sign is displayed in a conspicuous manner, both at the ,front ana rear 'of 'the ve~icle 'bearing the words "Not in Service" and the 'words. of each sign ar.e clearly visible \ 4 to the public (2) No person,. ,may drive an ambulance that is available for the provision of ambulance service unless the staff required by section 52 for responding to a call are present in the ambulance and, (a) the, ambulance .:is equipped in accordance with this .Regulat,ion and the ambulance .and its equipment ,are in the condition ,'and order (required ;by s'ection 17; or I (b) where the ambulance,' aG~cessory equipment or medical equipment is temporarily deficien~, .a di:-spa,tcher has directed that ( the ambulance be used to provide ambulance services (3) Every operator, shali ensure that every ambulance used in the operator's ambulance service is used only in accordance with this sec~io~ i Provisions of the Highway Traffic Act referreq to were Section 61, which provides \ I In this Part "ambulanc,e II incJ,:udes an ambulance as 'de!ined in the Ambulance Act and a cardiac arrest emergency vehicle operated by' or under the authority of a hospital; , Section 74(6) which provides No vehicle other than an ambulance, fire or police department vehicle, public utility emergency vehicle or vehicle operated by the Ministry shall be equipped with a siren horn or a device producing sound which so nearly resembles that produced by a siren horn as to deceive or confuse Sections 128 (1), (13) (c), (14) and (15) which provide' 128 (1) No person ,shall drive a motor vehicle at a rate of speed greater than, rl (13) The speed limit.s prescx~beq under this section or any regulation or by-law passed under this I I \ 5 section to n9~ apply to, '/j. ('c) an ambulance, as defined in section 61 while r responding to 'an emergency '>-c-<ali or' being' 'used 1:,0 \' transport a patiep1t, or injured person in an emergency situation (14) Every person who contravenes this section or any! by-;lC9.~:o,,: regul?-t~on made .under this section is guilty of an offence and on conv~ction is liable, - ~ wher,e the r.ate. of speed at, which the motor v~hicle was driven' is [there' follows a series ""of speed \" _' limits ,ane} ,penalties for exceed~ng th~m] _ t - (" _ ' (15) Where a c:ourt or judge has convicted a person for a contravention of this section and has ~ (determined th~~ th~ person convicted wq~,qr~~ing at a rate of speed of 50 or more kilometres 'per hour greater than the maximum speed limit, the court may suspend the driver's licence of the person for a "' period of nO,~2.mQre, than thj.r,ty days Sections 144 (1) (c-), (18) and (20) which 'provide 144 - (1) (c) In this section, - '. "emergency vehicle" mean~:r, (c) an ambulance while responding~b an emergency call or being useq 'to transpor~ a.pati,e~~ o;r injured person in an emergency situati'on 'on which a '~,.., _ siren ,is cqn!:-i.R}lously sq~n9.ing and from which intermittent -_f.,l~shes of red light are visible ~ ~ .... ..:...:. .1. ~) ...... - 1"" ' ~ -, (18) Every d~,iv~'I' ap:@~oaching a traffic control signal ,_ ..; _ ~, sl;lowing a, circul~r red indication and - . "fac~rig the indication shall stop his or ~ ~"he~ ~~h:i,cie and shall,tlbt proceed until a gre~n ind~cation_~s shown __ 4.-......,. ...:.. .... .- 'I (20) ,Despi te subsection (1,8) " a dri,ver of an emergency l vehicie~', after st.oppirig the vehicle, may ; proceed withou~ a green indication being shown if it is s~fe t6 do so The panel of the Board in Armes made reference to fewer sections of the Ambulance' Act and its R~gulatio:i1s than were made in \ \ , , 6 the case before us The references made in Arme~ were to section 1 of the Act, defining- ,II ambulance, II' ,and :to sections 52, 54 (1) , (2 ) '1 - and (3) bf the Regulations - ~ The p~ne~ of the Board in Armes also m~de fewer references to tpe sections ~~)the Highway Traffic Act than were made in the case - ~ before us The references to :t'he latter~Act, were apparently to the sections found -i,n RS 0 1980, cap 198, which correspond to sections 61 (de~ining "ambulance" in Part VI,), 144 (20) and 74(6) \ J .1, Counsel" for- 'the Union rel:i!ed 9n additional sections of the Ambulance Act, and its Regulations and of the Highway Traffic Act - which are quoted above [ In dealing with the issue before us, the Board in Armes, in - r -, l dismissing th~ grievance, saia(at pp 13-14) w~i~e is it true enough that the grievor, when responding to the Code 4 call' on February 24, 1994, was driving an ambulance, that ambulance was not in service, and it was clearly designated as such The grievor, in responding to- that call, was, not rendering ambulance services Rather, he was render~ng emergency medical services as part of a tiered response directed at ensuring the expeditious response ,to emergency calls The fully staffed ambu"iance ".:'which arrived jus t over one minute after the grievor, and which subsequently transported a Patient. toth,e hospital/ was rendering ambulance services and was, as required by the statute, staf~ed with two Ambulance Officers There was, in- our view, n0b.re~ch of either the Ambularlce Act or the Regulations made thereunder -.. There also was, in our view, no 'breach of the provisions of the Highway Traffic Act referred to by union counsel A reading of those _ provisions does not lead us to conclude that the grievor, in turning on his siren, or in l 7 ~ \ proceeding through an intersection without a green light I was req~ired to viol~te th~ law One of those provisions -refers 'to an em~rgency vehitl'e, and another expl,icitly ~ proyi~ep for ambulances to be equipped with sirens Obviously, had we found that the Service was requiring the griever to 'violate ahy sta~tite we would have almost certainly ~pheld the grievance However, we have not f'ound this 'to 'be the case, ana there is, ,accordingly, no basis for us to uphold the grievance on this ground Counsel for 'the Employer relied on Blake, 1276/87 etc .. '\ (Shime) Although he submitted ~that Armes ~aS correctly d~cided, he , furthe~ stib~itt~d that should we find th~~ this was not the case, , r - then the decision in Armes:'with respect to the issue before us did not fall within the area of "exceptional circumstances wh~re an I earlier decision of this board might be reviewed " (Blake, at p ,\ 'I t. 9) - :::. "- Because of the agreement of' counsel, we must accept the facts in Armes as governing, and can only decide whether, in the light of ~-r .... those facts,-the panel of the Board in that.-<:ase had committed an error of such dimensions 'as wou'ld allow US' -"to review its decision I , as permitted in Blake- -' We agree with the finding in Armes that thegrievor, there, was "driving art ambulance," within the meaning of s 1 of the Ambulance Act Under the definition, the "conveyp.nce" is not only an "ambulance" when it is actually in use "in an ambulance service ( for the transportation of persons requiring medica.l ",attention or _ under medical care," but also when "it is intended to be used for -I \ ( .. 8 I that purpose " On the faqts of Armes, th~ conveyance driven by the grievor in that case (on fi~st alert), wh~le it w~s not being used, for the "transportation of persons etc " was a "conveyance" , "intended to be us~d for such purpos~ ",As such, it remained an ambulance not_ rendering ambula~ce service, at the ~ime ... ~, We also find no 'error in the Board's finding, at p 14 of Armes I that the grievor in that case, in respond~ng to' the Code 4 call could cautiously exceed speed limi~s, use, t~e siren and go 'v ' through a red light without be~ng in violation of the ,~,ighway \ Traffic Act ~- In order to understand the Board's ,conclusion in Armes, it must be appreciated that under the statutory f?cheme an ambulance remains an ambulance even whep. ~ot engageg in functions that fall within the definition of what is an "Cirnbulance servic~" as defined in s 1 of the Ambulance Act So, the conveyance in Armes~, being one "intended to be used in an ambulance service ," al though not being used for that purpose at the time, remained an ambulance The grievor, in Armes when "renderi~g emergency medi call services as part of a tiered response dire9ted .at ensuring the - expeditious response to emergency calls" (Armes ibid. ) was using the ambulance for a purpose directly rela~ed to the provision of ambulance services "[T]he fully staffed ambul,ance wh:i,ch arrived just over one minute after the" conveyance driven by the grievor in _..~--- I -- ----~-- \ 9 Armes, ~ and which subsequently, transporteq a pat;i,ent to the ho'spital, was' rendering ambulance services and was" as req',lired by statute, staffed ,w,ith two Ambulanc~ Officers " (Armes at, pp, 13- 14) The use of the ambul.ance .by the grievor in ,Armes was z:lot "for any purpose not directly reJ:ated to the pr0visiqn of fimbulance services " (See Ambulance Act- s 43) The renderipg of emergency medical services by the grievor was directly related to the ambulance services'being offered by th~ ambulance that followed the L dri venby him' i.. "'_ -; Section 43 recogn,.izes l~hat an amp:l,ll~nce may be used for the purpose'of'rendering non-ambulance' se~ic~s-~s long,astge services rendered are'!'rela,ted" to the .provisj."on o~qmbulance ,service It is only when an ambulance is responding to a call for ambulance services that the staffing requirements of s 52 of the regulations apply . -,' -c ~- j -- --- - '} - , \ ,"- -- ~ It was consistent within the statutory scheme for the . ) (1) an "emergency vehiclell Leg~slature to treat an ambulance as when riot:'providing ambu~ance serv~ce, provided it was supporting such service and (2) to afford it the same protection as an ambuUince-providihg ambulance service :i:t; is- just as important for an ambulance to get to the scene of an accident as quickly as possible to offer support for an ambulance providing ambulance service as it is for the ambulance being supported " ( I '- \ ~ ~ 10 Section 54 (1) of the Regulations to the Ambulance Act does not deprive a conveyance that is intended to be used qS ap ambulance within the definition of s 1 of that designation ("a,mbulance" ) because it is 'being "-used" .in circumstances where.. it is not' available for the provision of aInbulanceservice anq nas the ,signs liNot in Service,l1 displayed as r~qlJ,ired by s 5'4 (1) , Section 54(2) of the Regulations requi:r-e.s' ,that no pers.on may drive an ambulance that is available for the provis~on of~mbu~ance service unless it is staffed as required to under s 52 and is equipped in a 'sta~ed 'manner, except as p~ovided for ~~ art 54(3) This section~does not -restrict the use of th~, amb4l~ncer 1:;0 the provision of ambulance ,service or change its status ~hen so driven t ~ .~- / Nor do we disagree with the conclusion in Armes, ~t p 14, that there was no breach of the provisions of the Highway Traffic Act - , In section 61 of the Highway Traffic. Act., ambu).ance is defined as In this part ambulance ,incluqes an ambulance defined in the Ambulance Act ~ I - Section 128(13) of the Highway Traffic Act provides that the speed limi.ts imposed by that Act or its regulations do not apply to an ambulance defined in s 61 "while reporting to an emergency ~ .;;, I i . - 11 \ callll or when IIbeing used to t'ransport a pa'tien'ti of injured person in an emergency situation II The conveyance in Arme s was an ambulance under s 61 It was, at the relevant time, responding to an emergency call and was not s~9jec~ t9 ~he speed :limits under s 128 of the Highway Traffic Act " - ~ Our conclusion is supported by the definition.of II emergency \ vehiclell in s 144 (1) (c) of the Highway Traffic Act The q.mbulance .. in Armes was an emergency vehicl~ unq~r S 144(1) (c) of t~e Highway Traffic Act and as such was protected from being fouI!d to be in violation of s 144(18) by s 144(20) ''\ We also find no fault with the conclusion at p 14 of Armes, \ that there was no contravention of the Highway Traffic Act because the grievor in that case, was required to use a sir~n Section 74(6) of the Highway Traffic Act provides that an ambulance, such as the dne driven by the grievor in Armes, can be equipped_with a IIsiren horn II and is not thereby in contravention of the Highway traffic Act and section 144(c) requires that an "emergency vehichle" I operate a siren to maintain that status Because of our conclusions, it is unnecessary to consider the ar,?3"uments made with respect to the application of the Blake decision, and the grievances are therefore denied .~ 12 Dated at Toronto this 26th day of May, 1995 "??2 ~.fiZ:g;t.... L // M R Gorsky / Vice Chairperson 9.~d. F Co Me~7 - L.t<-, f oJ-;/)/J! M Lyons Member