HomeMy WebLinkAboutSwartz et al 17-09-05IN THE MATTER OF AN ARBITRATION UNDER
THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
BAYCREST CENTRE FOR GERIATRIC CARE
("the Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the Union")
GRIEVANCES RE: CTRS DESIGNATION
Individual Grievances of Mara Swartz and Karen Grauer
OPSEU File Nos. 2015-0595-0001, 2015-0595-0002, 2015-0595-0003, 2015-0595-0005,
2015-0595-0006, 2015-0595-0007, 2016-0595-0002, 2016-0595-0003
2016-0595-0004, 2016-0595-0005
AWARD ON PRELIMINARY MOTION
ARBITRATOR: BARRY STEPHENS
EMPLOYER COUNSEL: JOHN SAUNDERS, Hicks Morley Hamilton Stewart Stone
UNION COUNSEL: ALISON NIELSEN-JONES, OPSEU Grievance Officer
HEARINGS HELD IN TORONTO ON NOVEMBER 23, 2016
AND JANUARY 19,2017
PRELIMINARY MOTION
Introduction
[1]The grievances before me relate to the qualifications for the Recreation
Therapist Specialist (RTS) position. The position was created in 2014 and the parties
agreed at the time that one qualification for the position was certification through an
outside body known as the National Council of Therapeutic Recreation Certification
(NCTRC). The grievances allege that the grievors were denied certification, and the
opportunity to be interviewed for a promotion, for a reason that constitutes age
discrimination, and that the employer cannot hide behind a third-party decision where
that decision has a discriminatory impact in the workplace,
[2]The employer brought a preliminary motion that I do not have jurisdiction over
the grievances, and this decision deals solely with that preliminary motion.
Facts
[3]The facts necessary for the preliminary objection can be stated briefly. The
grievors had extensive seniority, with Swartz holding a date of hire of January 4, 1986,
and Grauer August 24, 1987. Swartz worked as a Recreation Therapist (RT), while
Grauer was employed half-time as an RT, and half-time as a Recreationist. Five RTS
positions were posted in the workplace in 2014. The new classification required the
applicants to possess the formal qualification as a Certified Therapeutic Recreation
Specialist (CTRS) from the NCTRC. The employer and the union agreed in a Letter of
Understanding dated 20 August 2014 that current employees, like the grievors, would
be given until July 2015 to acquire the CTRS qualification, and that any RT's who failed
to acquire the qualification would remain in their prior positions, with supernumerary
RT's being subject to the layoff provisions of the collective agreement. The LOU makes
it clear that both the employer and the union agreed to the NCTRC qualification. The
LOU was intended to confirm that fact and provide for a transition process for
employees who wanted to apply for the new classification.
[4]The grievors attempted to write the NCTRC exam in order to secure the CTRS
designation from the NCTRC, but they were refused. The NCTRC did not recognize the
grievors' formal education, which was acquired in the 1980's. The grievors are of the
view that their education was the same or substantially the same as the programs taken
by newer entrants to the field, except that different terminology was used to describe
the courses they took in the 1980's. The NCTRC did not agree and advised the grievors
that they would be required to take five courses to bring their qualifications to an
acceptable level in order to acquire the CTRS designation.
[5]Both grievors have grieved temporary TRS postings for which they have not been
considered, as well as one permanent posting. They both advised the employer that
they did not intend to take the courses stipulated by the NCTRC, and took the position
that their education was equivalent to the NCTRC designation and should be accepted
by the employer. The employer relied on the LOU signed by the parties that stipulates
the requirement for the grievors to obtain the CTRS designation no later than July 2015.
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[6] The grievances allege that the employer's failure to interview and consider the
grievors for vacancies in the RTS position amounts to age discrimination, in that the
employer is insisting the grievors obtain a qualification in a manner that singles them
out for negative impact purely on the basis of when they acquired their education,
which is a function of age.
I note that the incumbent in the permanent position, Cindy Kaizer, was provided
notice of her right to participate in the hearing. She did not participate in the hearing
dealing with this preliminary objection.
Employer Submissions
[8]The employer argued that the CRTS certification determined by the NCTRC was
not a "hidden qualification" at the time of the creation of the RTS positions. The
requirement was made clear to employees when the positions were introduced, and
was the subject of the LOU providing for a one-year transition period. In that process,
OPSEU spoke on behalf of the incumbents and bound them to the agreement set out in
the LOU. Thus, both parties agreed that achieving the CRTS certification was key to
being considered for and placed in the RTS classification. The employer is now faced
with the fact that both grievors need to take additional courses before they can fulfill
the stipulated NCTRC requirement.
[9]The employer argued that the grievors had an issue with the NCTRC. The legal
relationship between the parties was outlined in the original LOU, then it was confirmed
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in a Memorandum of Settlement on the issue signed by the union and, finally, the
language was incorporated into the collective agreement. The original LOU references
the NCTRC it the opening clauses, stating the minimum qualification for the RTS position
would be the NCTRC certification. The LOU sets out the agreement of the parties to
follow this minimum qualification, which was, in effect, an agreement to accept the
credentials issued by the NCTRC as objective evidence of qualification for the RTS
position. Thus, the qualification was not unilaterally imposed by the employer but is a
result of an agreed approach. Neither the employer nor the union has jurisdiction to tell
the NCTRC how to runs its programs.
[10]The employer also argued that the issues identified by the grievors do not give
rise to an argument of age discrimination. They were not denied NCTRC qualification
due to their age but due to their lack of appropriate formal education. Their grievances
do not arise out of the interpretation, application, administration or alleged violation of
the collective agreement, rather their dispute is with the NCTRC. In this sense, the
grievances are no different than a dispute over whether an employee who required a
driver's license was denied a license by the MTO. If the employee had a claim in such a
situation, it would not be against the employer, and no arbitrator would have the power
to order the MTO to grant a license.
[11]The employer asked that the grievances be dismissed, and relied on the
following authorities: Centennial College (2014), 122 C.L.A.S. 49 (Leighton); Bruce Power
(2012), 227 L.A.C. (4th ) 119 (Surdykowski); ODSP v. Tranchemontagne (2010), 108 (3d)
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97(Ont. C.A.); ODSP V. Tranchemontagne (2010), 108 (3d) 97(Ont. C.A.); Van! v. Chief
Statistician, [2008] PSST 29 (PSST); Atomic Energy of Canada, [2004] 80 C.L.A.S. 88
(Goodfellow); Atlantic Packaging Products (2003), 115 L.A.C. (4th ) 97 (MacDowell);
London Life Insurance (2000), 49 O.R. (3d) 766 (Ont. C.A.); Renaud v. Central Okanagan
School District, [1992] 2 S.C.R. 970.
Union Submissions
[12]The union submitted that the requirement for the CTRS designation has a
discriminatory impact on the grievors amounting to age discrimination. This is based on
the submission that the grievors engaged in the "exact same" educational program but
they cannot get the same result as employees who took the program more recently, i.e.
younger employees. The union asserted the decision on this point could only be made
after a full hearing on the merits, and that the employer's preliminary objection should
be rejected.
[13]The union argued that the parties cannot "contract out" of human rights
protections. Moreover, the issues raised by the grievance clearly arise from the
collective agreement because the parties agreed in Article 32.01 to the language
regarding the CTRS qualification. The union asserts that by this arrangement the
employer has delegated to a third party the power to make decisions about the rights of
employees, but such delegation must be done in accordance with the collective
agreement and human rights protections. In this instance, the union argued, it would
demonstrate that the courses taken and the degrees earned by the grievor were
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"identical" in nature to the courses that the NCTRC otherwise accepts as valid, and that
the only difference is that the courses were given different names when the grievors
attended school in the 1980's.
[14]The union acknowledged that I did not have the authority to order the NCTRC to
provide the CTRS designation to the grievors, but an arbitrator does have the power to
order the employer to remedy a breach of the Human Rights Code. The employer did
not make the decision to deny accreditation to the grievors, but the employer is liable
for the decision of a third party to whom the power has been delegated. The part of the
collective agreement dealing with this delegation of authority must be amended at least
to the extent of protecting the grievors from the impact of age discrimination.
[15]The union relied on the following authorities: Sifto Canada (unreported,
MacDowell, December 2011); G4S Secure Solutions (unreported, E. Newman, June
2011); Ontario Liquor Control Board (unreported, GSB Carrier, January 2006); Canadian
Armed Forces (unreported, CHRT, March 2005); Thompson v. Providence Health Care,
[2003] CarswelIBC 3476 (BCHRT); Fantom Technologies (unreported, Beck, January
1998); Borough of Etobicoke (SCC, February 1982).
Analysis and Decision
[16]The issue before me is whether the grievances arise from the collective
agreement between the parties and are within my jurisdiction, or whether the disputes
arise from decisions made by an outside body that is excluded from the collective
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bargaining relationship beyond my jurisdiction. After carefully considering the facts, the
authorities and the submissions of the parties, it is my view that the employer's
preliminary objection is valid and that I do not have jurisdiction to deal with the issues
raised in the grievances.
[17]The union's main argument is that the RCTRC serves as an agent for the
employer, and is administering a collective agreement right, similar to the role played by
an insurance carrier that provides benefits stipulated under a collective agreement. In
the case of benefit plans, the denial of benefits by a third-party carrier may be subject to
a grievance, depending on the wording of the collective agreement. The union asserts
the instance case requires a similar approach.
[18]The comparison to an insurance carrier is not perfect. The parties have agreed
that the standards of assessment applied by the RCTRC to achieve the CTRS designation
will be accepted as appropriate standards of measure and qualification, and are
considered pre-requisites for the RTS position. This places the RCTRC, by mutual
agreement of the union and employer, in the role of an outside accrediting agency, the
standards of which all applicants must satisfy before being considered eligible for an RTS
vacancy. In this sense, the analogy to an outside insurance carrier is far less compelling
than an analogy to an institution specialized in assessing skills and knowledge and
granting certification with respect to a specific profession or trade. Some examples
would be: a university or a community college granting diplomas; the Ministry of
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Transportation issuing driving licenses; and professional organizations, such as the Law
Society of Upper Canada for lawyers, or the College of Nurses of Ontario for nurses.
(19] Be that as it may, much of the relevant jurisprudence deals with insurance
carriers and neither party presented a court or arbitral decision that involved a dispute
involving an outside accrediting institution. It is important to note that, even in the
insurance cases, the fact that an insurance benefit is referenced does not mean an
arbitrator has jurisdiction to decide a dispute with respect to the benefit. On the
contrary, arbitrators do not have the jurisdiction to determine the decisions made by
third parties where the collective agreement reflects that to be the intent of the parties.
In this context, the wording of the relevant portion of Article 32.01 reads as follows:
Therapeutic Recreation Specialist — Certified Minimum four (4) years Honour Degree
in Therapeutic Recreation, combined with demonstrated experience in the provision of
recreation services and has successfully bid into the position as a Therapeutic Recreation
Specialist — Certified.
Equivalent — A univeristy degree in a related discipline combined with a post graduate
certificate/diploma in the fled of Therapeutic Recreation from a diploma granting college,
such as Georgian College.
All Therapeutic Recreation Specialist — Certified, must be certified as a Certified
Therapeutic Recreation Specialist (CTRS) and registered with the Therapeutic Recreation
of Ontario (R/TO). Professional member in good standing with the Therapeutic
Recreation Ontario (TRO) and professional member in good standing with the National
Council of Therapeutic Recreation Certification (NCTRC).
[20] Most importantly, the insurance cases go beyond the issue of insurance, because
they are fundamentally cases about the jurisdiction of arbitrators. Thus, it is my view
that the comments about jurisdiction in the jurisprudence involving insurance benefits,
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particularly in the Court of Appeal decision in London Life Insurance, are directly
relevant to the issue before me, and I will consider this decision in greater detail below.
Consideration of Union Cases
[21]There are significant differences between the cases relied upon by the union and
the case before me.
[22]Sift° Canada is a straight-forward application of the well-accepted arbitral
principle that the denial of a collective agreement insurance benefit may be arbitrable
when the benefit plan is incorporated by reference into the body of the collective
agreement. I do not believe I can read this collective agreement, including the human
rights provisions, as in any way incorporating by reference or otherwise the policies and
procedures of the RCTRC.
[23]Canadian Armed Forces deals with a dispute about medical benefits for a spouse,
and whether such benefits could be considered an "employment opportunity" covered
by the Canadian Human Rights Act. The case stands for the proposition that human
rights complaints should only be dismissed at a preliminary stage in the "clearest of
cases." Although it appears that this comment is directed at the formal procedures of
the Canadian Human Rights Tribunal, it is a reasonable procedural standard for
arbitrators as well. However, the issue before me is not procedural but a fundamental
question of jurisdiction, and I have reached the conclusion in this case that, as a matter
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of jurisdiction, the employer is not required to answer for the alleged human rights
transgressions of the RCTRC.
[24]The decision in Thompson involved a narrow factual issue about whether a
termination settlement included an undertaking not to file a human rights complaint,
and I did not find it of assistance in rendering this decision.
[25]In Borough of Etobicoke the dispute was with respect to the human rights
implications of a specific collective agreement provision requiring mandatory retirement
at age 60. Meanwhile, the decision in Fantom deals with the enforcement of a specific
term contained in a "last chance agreement" that had the effect of treating a disabled
employee differently from other employees with respect to absences. Similarly, the
decision in LCB0 deals with a claim that a provision in a Memorandum of Settlement
stipulating that the grievor would be transferred to a different location violated the
Human Rights Code. All three of these cases involved an allegation that a specific
provision of the collective agreement or other agreement was, on its terms, a violation
of the human rights protections. Thus, these three cases are all distinguishable because
they deal with allegations that a specific provision found in an agreement between the
parties was, in its essential nature, contrary to human rights laws. The union has not in
the case before me alleged that the decision of the parties to designate the RCTRC
qualification as a requirement was, in and of itself, discriminatory, which is the key
feature of all three of these cases. Rather, the union here challenges the actions and
decisions of the RCTRC with respect to these two individuals.
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[26]At first blush, G4S appears to share some characteristics with the instant case, in
that the employer, a security firm, allowed a client to choose from among applicants for
a posted position, and the client selected the successful candidate without proper
application of the seniority provisions of the collective agreement. The union in the
case before me argued that the same process has taken place here. An outside third-
party, the RCTRC, was contracted to make decisions with respect to the qualifications of
the grievors, but it is alleged that it failed to do so in accordance with the human rights
protections that are incorporated into the collective agreement.
[27]The apparent similarities between G4S and the case before me weaken on closer
examination. One difference is that in G4S the collective agreement stipulated that
hiring decisions must be made with due consideration to seniority, and that where
candidates were "relatively equal", seniority should be the deciding factor. The
evidence indicated that the grievor was the senior applicant, that he had performed the
job in an acting capacity, and the posting was merely a full-time vacancy for the job he
held on a part-time basis. There was no difference between the part-time and full-time
duties, aside from the hours, and the grievor typically worked the equivalent of full-time
hours in his part-time position. It was patently obvious from the facts that the grievor
was at least relatively equal to the successful candidate. I note as well that the
employer in G4S did not call any evidence to challenge the union's case. Thus, the G4S
decision involved a clear failure on the part of the employer to apply the grievor's
collective agreement seniority rights in the posting process.
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[28]Moreover, there is a significant difference between the arbitrator's finding in
G4S and the finding the union seeks in the grievances before me. One could not ask for
a clearer example of a violation of an employee's collective agreement seniority rights
than that found in G45. The reason why the collective agreement was violated was that
a third party was permitted to pick the successful candidate based on unknown factors,
and without the due regard to seniority required by the collective agreement. The
employer delegated the third party to make the decision, and did not make any effort to
constrain the decision to ensure that it was consistent with the grievor's collective
agreement rights.
[29]It strikes me as self-evident that, in that case, the parties contemplated that a
dispute over the denial of a posted vacancy to a senior "relatively-equal" employee
would be a factual situation governed by the collective agreement. In this sense, G4S is
in the same category as the Etobicoke, Fantom, and LCB0 decisions considered above.
[30]The union seeks something different in the case before me. It asks that I take
jurisdiction to rule on whether the RCTRC engaged in discrimination against the
grievors. It is one thing to find that the employer delegated a decision to a third party
without ensuring that collective agreement seniority principles were respected. It is, at
least in my mind, quite another to seek a ruling from an arbitrator that a third party
such as the RCTRC has engaged in age discrimination.
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The London Life insurance Decision
[31]The fact that a matter may be mentioned or addressed in a collective agreement
does not mean that an arbitrator automatically has jurisdiction. This is well illustrated
by the many cases involving disputes over the rights of employees to grieve the denial of
insurance benefits. The decision of Goudge J.A. in London Life is an example of one of
these insurance cases, and it is also the most useful precedent provided to me by the
parties to assist in the analysis of this dispute.
[32]In London Life, the Ontario Court of Appeal addressed the issue of the
jurisdiction of a labour arbitrator in relation to a dispute involving insurance benefits.
Goudge J.A. summarized the issue of jurisdiction as a matter of whether the dispute "in
its essential character", arises from the collective agreement, stating at paragraph 26 of
the decision:
"Thus, the exclusive jurisdiction of the arbitrator encompasses those disputes where,
given the essential character of the dispute, it can be said that the collective agreement
contemplates such factual situations. Did the parties intend that the facts which give the
dispute between them its essential character be governed or regulated by their collective
agreement? Do those facts engage the rights and obligations of the parties found
expressly or by inference in the collective agreement? If so, the dispute is within the
exclusive jurisdiction of the arbitrator."
[33]Applying the Court of Appeal test set out in London Life Insurance, the "essential
character' of the dispute raised by the grievors in the case before me is whether the
RCTRC engaged in age discrimination by discrimination by refusing the grievors the CTRS
designation based on education acquired in the 1980's. It is my conclusion that there is
nothing in the collective agreement that would indicate the parties contemplated that
• such a fact situation would confer a right on an employee to claim against the employer
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for breach of a collective agreement obligation in the event of a failure of an individual
to secure the CTRS certification. On the contrary, it is abundantly clear to me that the
act of designating an industry-recognized certification (the CTRS) administered by a
recognized outside agency (the NCTRC), by its very nature, speaks to the exact opposite
conclusion - that the collective agreement contemplates that the decision about the
CTRS qualification would be made by the outside body and that any disputes about the
process or outcome would not be related to decisions made by the employer (or the
union) and would thus fall outside the collective agreement.
[34]I have considered whether the requirement to protect human rights in the
workplace would change this conclusion in any way, but I do not believe it does. The
decision made by the employer (and the union) with respect to the CRTS is solely to
designate a specific formal qualification as a mandatory requirement for the TRS
position, with the understanding that it is an outside agency that administers and
determines an individual's eligibility for the qualification. There is nothing inherently
unreasonable or even unusual about such a requirement, nor did the union submit
evidence or argument to challenge the requirement for the CRTS certification in a
general sense.
[35]It is also useful to bear in mind that the relevant insurance cases address the
fundamental issue of jurisdiction, not the details of insurance benefits, and they stand
for the proposition that a collective agreement will not give rise to jurisdiction for an
arbitrator to assess an insurance carrier's decision unless the language agreed between
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the parties so requires. At one end of the spectrum, there are the benefit plans that are
identified in the collective agreement, and for which the employer undertakes the
obligation to pay premiums. At the other end are collective agreements that spell out
all or some of the insurance benefits. In the former case, an arbitrator will have no
jurisdiction but in the latter case there will be jurisdiction over grievances. Thus,
jurisdiction is governed and circumscribed by the structure of the collective agreement,
as one would expect, and in my view that principle of jurisdiction holds true whether
one is considering language dealing with a formal qualificatin determined by an outside
assessing agency or an insured benefit administered by an insurance carrier. In the case
before me, the language calling for the CTRS qualification is analogous to the simple
insurance provisions in which the employer understakes only to pay the insurance
premiums.
[36] I have seen enough job postings in my career to know that a significant
percentage of jobs posted under collective agreements require formal educational or
professional qualifications that are assessed or granted by outside agencies. The
union's argument, if successful, would mean that an employer would be responsible for
the human rights violations of outside agencies over which they have no control, with
which they do not normally have a commercial or contractual relationship, and where
there is no indication in the collective agreement of any connection, other than that the
parties recognize the authority or expertise of the assessing institution.
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[37]The decision in London Life reinforces the fundamental rule that the contractual
relationship between the union and the employer must define the ambit of an
arbitrator's jurisdiction. It seems to me that the first question posed by Goudge J.A. in
the passage excerpted above is most helpful, and is sufficient to determine the issue
before me. Did the parties before me intend that the facts which give the dispute
between them its essential character be governed or regulated by their collective
agreement? After reviewing the facts, the submissions of the parties and the
jurisprudence, I cannot conclude that the collective agreement reflects an intention by
the parties that a dispute with the RCTRC about the CRTS qualification would be
governed by the collective agreement. In fact, I conclude the opposite, that the
intention of the parties reflected in the collective agreement is that the issue of CRTS -
qualification is to be determined by an outside agency, and is not a matter governed by
the collective agreement. Thus, as I see it, the "essential character" of the dispute is not
one that arises from a decision made under the collective agreement, and I have
concluded that the issue raised by the grievances is not one that comes within my
jurisdiction as an arbitrator under this collective agreement.
[38]For the reasons set out above, the employer's preliminary objection is upheld. I
find that I do not have jurisdiction to hear the grievances and they must be dismissed.
Barr ephens,
Arbitrator
September 5, 2017
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