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HomeMy WebLinkAbout2020-1160.Union.24-06-18 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-1160; 2020-1166 UNION# 2020-0229-0024; 2020-0229-0030 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION David Wright Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Paul Meier Treasury Board Secretariat Legal Services Branch Counsel HEARING March 25, 2024 -2 - Decision [1] I have before me a number of grievances relating to issues arising out of the circumstances at the start of the COVID-19 pandemic in the late Winter and early Spring of 2020. On March 25, 2024, the parties appeared before me to argue a preliminary motion brought by the Employer with respect to two of the grievances. These grievances, #2020-0229-0024 and 2020-0229-0030, were filed by the Union, (OPSEU and its Local 229), with respect to employees who work at the Ontario Correctional Institute in Brampton. [2] In the preliminary motion the Employer argues that the grievances do not disclose a prima facie basis for the relief sought. This award determines the motion. 2020-0229-0024 (Gatherings Grievance) [3] On July 2, 2020, the Union filed a policy grievance (OPSEU#2020-0229-0024) in relation to the Employer’s organization of social gatherings and events where food would be “shared” between groups of staff members, “contrary to public health recommendations”. The social gatherings/events took place on March 27, 2020. [4] The grievance states: The Union grieves that the Employer is in violation of the Collective Agreement, including but not limited to: CA Preamble (Satisfactory Working Conditions), Article 2 (Management Rights), and Article 9 (Health and Safety); as well as the Occupational Health and Safety Act. The Employer has done so by organizing social gatherings and events where food would be shared between groups of staff members against public health recommendations. [5] In the grievance the Union sought the following relief: [1] Full redress; [2] General damages to Local 229 members for exposure to unnecessary health and safety risks; and -3 - [3] Reimbursement of lost credits used to top up any sick credits used. [6] The parties entered into a litigation protocol concerning the large number of COVID- 19 related grievances filed during the circumstances that existed at correctional institutions. As part of that protocol the Union agreed to file particulars about the grievances it had filed, which were proceeding to arbitration. For the purposes of this motion, I accept these particulars as true and provable. The relevant particulars filed by the Union with respect to this grievance, state as follows: On March 18, 2020, Suzanne McGurn, Assistant Deputy Minister, Institution Services, and Daryl Pitfield, Executive Director, Institutional Services shared a four page memo titled “COVID-19: Update #1”. The memo acknowledged that the corrections environment is unique and vulnerable to COVID-19. The Memo directed staff to Ministry resources that provided information on the pandemic and reminded staff of the Employee and Family Assistance Program that provides support. (emphasis added) On March 24, 2020, Toronto Public Health released a public COVID-19 fact sheet titled “Practising Physical Distancing” to encourage everyone to practise physical distancing. This included cancelling all group gatherings, avoid visiting friends and family, exploring work from home options and avoiding large groups. On March 25, 2020, Vicki Kastner, Deputy Superintendent Operations, sent a memo inviting all staff to attend a staff appreciation lunch on March 27 at 1230 hours or 1830 hours for pastries and a “special treat”. While OCI was in the containment phase, Deputy Kastner sent an invitation for all staff to gather together. The Memorandum stated, in part: Words cannot express how proud we are of your professionalism, your dedication and your selflessness in the face of adversity…We respect that as first responders and essential services providers you have proven to be the staff that step up with authentic compassion, and genuine concern which makes us all so proud of all you do. The Memorandum concluded: -4 - On Friday March 27, 2020, we will be showing our appreciation by offering pastries and a special treat. Please join us in the staff cafeteria at 12:30 or in the front lobby at 18:30. On March 25, 2020, Mr. Cygler, from the Union, emailed Toronto Public Health to express his concern about the staff appreciation event at OCI. Toronto Public Health advised that the event would not be in keeping with its recommendations for social distancing, avoiding crowds, and the cancellation of group gatherings. On March 25, 2020, at 1:30pm, an Infection Prevention and Control Committee (IPCC) meeting took place, including attendance from Mike Parsons and Dylan Neumann from the Union, and Hasted, Donna Butler, and Kastner from the Employer. Discussion during the meeting, amongst other things, included the following: … e. The committee discussed social distancing and ways to encourage staff and residents. Mr. Parsons requested the committee to begin to develop a comprehensive plan for social distancing of staff and inmates at the institution. The Employer representatives that were on the committee advised the Union representatives that social distancing is not something that they could enforce so they would not ask staff to do it. The Employer also stated that social distancing is a personal choice, and that staff will come around to it “in their own time”. On March 26, 2020, the Union (Cygler, Neumann, Elaine Barnes, Parsons, Brett Valleau, and Tracy Zalman) met with the Employer (Felecia Hooper, Micheal Sromek, Butler, Hasted, and Kastner). Some of the discussions during the meeting included: b. The Staff Appreciation Event was discussed. The Employer stated that it was not a “gathering but a drop in event”. The Union encouraged the Employer to clarify and emphasize that it was a drop-in event; On 26 March 2020, OCI sent a reminder for the “Staff Appreciation Day Drop-In” to all OCI Staff, stating: -5 - Please see the attached memo as a reminder of the Staff Appreciation Day drop-in being held in the front lobby tomorrow. On March 27, 2020, ADM McGurn circulated a corporate memo that stated because of COVID-19, as of March 25, 2020, only “employees who support critical services are asked to report to work. Any work that can be completed remotely should be completed from home”. The two drop in events occurred at the times announced previously on March 27, 2020. On March 28, 2020, the Government of Ontario issued a new emergency order that prohibited gatherings of more than five people with strict and limited exceptions. This announcement lowered the gathering limit from 50 to five people. [7] The provisions of the parties’ collective agreement which the Union asserts were breached are primarily in Article 9 which states: 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. 9.2 The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees. [8] Section 25(2)(h) of the OHSA, which the Union asserts was also breached, provides: (2) Without limiting the strict duty imposed by subsection (1), an employer shall, … (h) take every precaution reasonable in the circumstances for the protection of a worker; The Employer’s Position [9] The Employer argues that it is undisputed that the events were, in the end, not “gatherings” but were, instead, scheduled as “drop-ins”. The Union provided no -6 - particulars about employees who were required to attend the events, how many people actually attended the events, how many were there at any one time or that the people who did attend, did not, or could not, remain six or more feet apart, which was the social distancing requirement at the time. There are also no particulars about when employees dropped in or that anyone contracted COVID-19 at the events. In fact, there were no facts to support that the events were even a “gathering”, let alone a large gathering (over 50 people). There are no particulars that lunch was served. Instead, what is alleged is that staff was provided a single serve pastry. [10] The Employer also notes that employees had been trained to self monitor for COVID-19 symptoms and that they knew to stay home if they had any such symptoms. There are also no particulars of any alleged “instances where food was shared between groups of staff members”. [11] The Employer also asserts that at the time there were no confirmed COVID-19 cases in the institution. In fact, for the month of March, there were only 280 COVID- 19 cases in the City of Toronto. In these circumstances, it argues there can be no breach of the collective agreement or of the OHSA. There are no particulars asserting that Toronto Public Health recommended against drop-in events on March 27, 2020. Further, there are no particulars asserting that Mr. Cygler ever shared his alleged March 25, 2020 email exchange with Toronto Public Health with the Employer (nor did the Union disclose any such email in its particulars). [12] In the Employer’s submission, Article 9.1 of the collective agreement essentially mirrors the requirements in s. 25(2)(h) of the OHSA which requires the employer to take every precaution reasonable in the circumstances for the protection of a worker. To determine what is reasonable requires an objective assessment. Here, the Employer argues there are no facts before me which could lead to the conclusion that the “gatherings” were unsafe. [13] The Employer argues that a proper interpretation of the OHSA requires there to be some reasonable nexus between the hazard and a realistic risk to worker safety. It relies on the Ontario Court of Appeal’s decision in Blue Mountain Resorts (114 O.R. -7 - (3d) 321). In that case the Ontario Labour Relations Board found that the drowning death of a resort guest gave rise to certain obligations on the employer under the OHSA. The Divisional Court agreed. The Court of Appeal disagreed and stated: [23] The language "where a person is . . . critically injured from any cause at a workplace" in s. 51(1) of the Act is undoubtedly intended to capture a wide range of injury-related occurrences affecting the safety and well-being of workers. As the board member correctly observed, "the Act is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers". [24] Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (C.A.), at para. 22. [page328] [25] In Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37, [2002] O.J. No. 283 (C.A.), at para. 16, Sharpe J.A. reinforced that notion: The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purpose and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. [26] This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however. [27] One of the problems with what is otherwise an understandable approach to the interpretation of public welfare legislation is that broad language, taken at face value, can sometimes lead to the adoption of overly broad definitions. This can -8 - extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation. [28] Such is the case, in my view, with the interpretation given by the board and the Divisional Court to the language of s. 51(1) in this case. [29] In these circumstances, the principle of statutory interpretation affirming that broad language may be given a restrictive interpretation in order to avoid absurdity may come into play: Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, at pp. 1081-1082 S.C.R.; and Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 S.C.R. 727, [1996] S.C.J. No. 111, at para. 109, per Iacobucci J. [14] The Employer also relies on another Ontario Court of Appeal decision, Ontario (Ministry of Labour ) v Sheehan’s Truck Centre ( 107 O.R. (3d) 763) which held: [28] This court has recognized that the Act is a public welfare statute, the broad purpose of which is "to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace". This requires that the Act be interpreted in a manner consistent with its broad purpose, the promotion of worker safety: see R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (C.A.), at para. 22; Ontario (Ministry of Labour) v. United Independent Operators Ltd. (2011), 104 O.R. (3d) 1, [2011] O.J. No. 236, 2011 ONCA 33 ("UIOL"), at paras. 31 and 64. [29] The SCAC judge was correct to approach the interpretation of s. 56 of the Regulation in a manner that advances the protective aims of the Act and the Regulation as a whole. Both the Act and the Regulation are designed to safeguard workers in the workplace. The Regulation focuses on worker safety in "industrial establishments", as that term is defined under the Act. In that context, s. 56 of the Regulation imposes a specific safety measure -- a signaller requirement -- that applies in defined circumstances in industrial establishments. [30] That said, consideration of the protective purposes of the legislative scheme is not the only consideration when attempting to ascertain the scope of s. 56 of the Regulation. The Act seeks to achieve "a reasonable level of protection" (emphasis -9 - added) for workers in the workplace. For obvious reasons, neither the Act nor the Regulation mandate or seek to achieve the impossible -- entirely risk-free work environments. (emphasis added) [15] The Employer argues that the Union is seeking to achieve an entirely risk-free workplace here which is precisely what the Court in Sheehan’s cautioned against. It is obvious that a correctional institution, like OCI, can never be an entirely risk- free environment; what is required is a reasonable level of protection in the circumstances. That is especially true during a pandemic. Correctional institutions are congregant settings. Most correctional officers who work at correctional institutions are almost inevitably going to come into close contact with others, including inmates, who themselves are inevitably going to come into contact with other inmates or staff. That is the context in which the drop-in events should be assessed. [16] At these events, the Employer required social distancing among staff and made them drop-in events to limit the amount of time people spent in the same area. The idea was that employees would come, eat a piece of pastry and then leave. These were reasonable precautions which ensured everyone’s safety. There is also no allegation that any person did not comply with the social distancing requirements or stayed longer than was required to eat a piece of pastry. [17] The Employer argues that the Union’s case is entirely hypothetical. What is required is an objective assessment. In the GSB case of OPSEU (Martin) v The Crown in Right of Ontario (Ministry of Transportation) (March 7, 2022) (Dissanayake) this concept was discussed as follows: [268] This brings into focus the meaning of “reasonable” in the collective agreement and the Act. Reasonableness must be assessed taking into account the nature of the job. Thus, the degree of risk a police officer may be expected to encounter, would not be the same as that faced by an office worker. Therefore, what is reasonable for office workers may not be reasonable for police officers. -10 - They would be entitled to greater protective tools and processes as reasonable precautions. Here, the union has agreed that it is not entitled to a completely risk-free work environment, and that some safety risk is inherent in the work of SEOs. It is the union’s position nevertheless that given the level of risk faced by SEOs the safety precautions provided are not reasonable. [269] In determining this issue, multiple factors must be considered. The following are of particular relevance: (a) The fact that there have been few or no incidents of injury, assault etc., by itself, does not establish that existing precautions are reasonable. (b) The test is objective. An employee’s subjective feelings about the risk or danger by itself is not sufficient. Such feelings must be reasonable and must be grounded on demonstrable and objective facts. Mere theoretical or hypothetical possibility of risk is insufficient. (c) The employer is not required to guarantee employee safety against every possible risk, no matter how remote the possibility that it will occur. The likelihood of the risk arising is relevant. (d) The frequency with which the risk could arise is relevant. (e) The magnitude or seriousness of the impact of a risk on employee safety is relevant. (f) The financial cost of the safety precautions sought and its impact on the operational efficiency of the work to be done must be balanced against the likelihood of the risk arising and the magnitude and seriousness of the result in the event the risk arises. (g) There has to be a link between the risk that exists, and the safety precaution sought. That is, there must be evidence that the precaution sought would eliminate, or at least mitigate the risk in question. (h) The nature of the duties of the job of the employees in question must be considered. (i) Whether or not a particular safety precaution improves the existing level of safety is by itself irrelevant. Employees are not entitled to optimum or the best safety precautions. The test is whether existing safety precautions meet the threshold of reasonableness mandated by the collective agreement and the Act. -11 - (j) There may be more than one way of addressing a particular safety risk. Depending on the particular circumstances, rather than providing a safety tool or device, a risk may be reasonably addressed by other means, such as establishing a process for pre- planning work in advance or changing the way work is done. Union Argument [18] In its argument the Union acknowledges that in these circumstances zero risk was not obtainable. Indeed, the workers already faced real risks due to the nature of the pandemic and the workplace. However, the event in question added to the risks faced by the workers, which is not acceptable when that added risk was occasioned by a social event. [19] The events occurred two weeks after the pandemic was declared. At the time, experts did not know a great deal about the virus and how it spread (droplets vs aerosol etc.). Gatherings were, at this stage, limited to 50 persons but six feet of social distancing between individuals was also “required”. However, as the particulars make clear, the Employer advised the Union that it would not, at this time, enforce social distancing and that staff would “come around to it in due course”. It notes that this stance was taken at a time when Toronto Public Health had already recommended that gatherings be canceled. [20] The Union argues that holding events which brought people together was both a violation of the collective agreement and the requirement in the OHSA to take every reasonable precaution for the protection of workers in the circumstances. Once people come together, the risks of spread of the virus are magnified. It does not matter that the events were “drop ins”, it was still a gathering of people. Holding such an event is not taking every reasonable precaution in the circumstances. Employer Reply [21] The Employer replies that every reasonable precaution was taken. It notes that any assertion that there was not appropriate social distancing was not particularized and -12 - amounts to speculation. The Union has pled no facts about what actually happened at the two events. Decision [22] I shall start by observing that, at this time, having staff appreciation events where people would come together in any fashion was, at best, unwise. At the time the event occurred very little concrete information was known about the virus. Indeed, our understanding about the effectiveness of protective measures (such as masks) has changed over time. Management’s laissez faire attitude about social distancing, which the Union alleges was present at the time, makes little sense on reflection. This is especially the case since we know that people could have the COVID-19 virus while remaining asymptomatic. [23] That being said, at the time of the events, which are the subject matter of this grievance, there were very few cases of COVID-19 outside of the major population centres. The virus had not yet, as it would soon, spread to many correctional facilities. There were no reported cases at OCI. That state of affairs would last only a short period of time, however. Within two to three weeks OCI had its first COVID- 19 case and the institution was ultimately seriously affected with a substantial number of its staff and inmates testing positive and an outbreak declared. [24] Of course, my observations about the Employer’s decision to hold the events do not mean it violated the OHSA or the collective agreement, even on the Union’s best case. In fact, I do not find there to be a prima facie breach of the collective agreement or the OHSA in these circumstances. I have come to that conclusion because there are virtually no allegations of fact set out in the particulars which could lead me to conclude that the events were actually unsafe in any way. In fact, there are no particulars that assert how many employees attended the events or even whether anyone attended it at all. There are no allegations about whether employees were socially distanced at the events or how long they lingered there. In my view, at the time of the events, merely holding a “gathering” did not, by itself, -13 - constitute a failure to take every reasonable precaution for the protection of workers in the circumstances. [25] I agree with the Union that it does not matter whether the events were a “gathering” or a “drop-in” (whatever may be the practical difference between the two concepts). What matters, is how people acted if and when they attended. It was certainly possible to have a safe event at that time given enough social distancing, ventilation and other measures. Whether the events were actually unsafe is simply impossible to determine from the Union’s particulars. [26] In these circumstances, the grievance is dismissed as disclosing no prima facie breach of the collective agreement or the OHSA. *** Grievance OPSEU # 2020-0229-0030 (JHSC Compliance Grievance) [27] This grievance, filed on July 2, 2020, states: The Union grieves that the Employer is in violation of the Collective Agreement, including but not limited to: CA Preamble (Satisfactory Working Conditions), Article 2 (Management Rights), Article 3 (No Discrimination), Article 9 (Health and Safety), and Appendix COR20; Terms of Reference of the Joint Local Health and Safety Committee, as well as the Occupational Health and Safety Act. The Employer has done so by undermining and circumventing the local Joint Health and Safety Committee in the management of the COVID-19 pandemic and outbreak at OCI. [28] The remedy requested is as follows: 1. Full redress; -14 - 2. Employer to ensure active participation of the local Joint Health and Safety Committee in pandemic planning and Continuity of Operations planning; and 3. General Damages to Local 229 members for exposure to unnecessary health and safety risks. [29] The essence of the Union’s grievance is that the Employer shifted health and safety responsibilities from the JHSC to committees, such as the IPCC, rather than using the JHSC at the time around the start of the COVID-19 pandemic. The Union argues that the Employer should have held more meetings of the JHSC in order to take every reasonable precaution in the circumstance in accordance with s.25(2)(h) of the OHSA. [30] The relevant particulars state: 43. On March 19, 2020, the Union (Adam Cygler, Gary Stickle and Elaine Barnes) had a meeting with the Employer (Felecia Hooper, John Hasted, Butler, Vicki Kastner, and Michael Sromek). During the meeting, the locals socially distanced from one another while management sat right next to each other, and the following was discussed: a. The Employer announced meal service would be slowed down; b. Social distancing was to be implemented by combining two units together for evening recreation (all other programs remained mixed together); c. The Employer stated that staff cannot enforce social distancing and personal space is up to choice; d. The Employer developed a cleaning schedule with maintenance; e. The Union requested an update on the state of emergency and pandemic plan activation. The Employer indicated “status quo” to continue and there are no triggering factors at this time thus no pandemic plan will be activated at this time. The Chief Medical Officer will direct corrections when to enact their plans; f. Wa ter fountains will remain operational; -15 - g. No direction for gowns from the Employer in A&D; h. Meetings will continue; i. Some training was to be placed on hold but N-95, standard First Aid and Target Response can continue based on stats; j. All construction and maintenance projects were to continue; k. The Union requested information on the stock of PPE and cleaning supplies and whether there was any follow up with Public Health; l. The Union requested for the JHSC to convene; m. An IPCC meeting was scheduled for Wednesday March 25, 2020, at 1:30pm. The Employer’s Position [31] The Employer argues that this grievance should be dismissed because there is no suggestion in the Union’s particulars that the JHSC did not meet as often as the OHSA requires or did not do everything that it was required to do in all the circumstances. In this regard, there is no dispute the JHSC, and the IPCC met on: -March 13, 2020 by conference call; -March 26, 2000 OCI JHSC meeting; -March 23 and 25- IPCC meetings -March 26, 2000- JHSC meeting- minutes were sent to the worker co-chair for review on March 30. [32] The Employer also asserts that the MOL contacted the Union and Employer members of the JHSC to give them notice of all work refusals. [33] As for the Union’s claim that the Employer undermined the JHSC, the Employer argues that no particulars of such claims have been provided. Instead, it is not disputed that the IPCC continued to work during the period. In fact, the Union acknowledges that it did not raise a concern at the relevant time that all COVID-19 issues were being raised at the IPCC rather than the JHSC. -16 - [34] The Employer asserts that there is no obligation to have JHSC meetings beyond those required by the OHSA. It notes that from March to June 2020, the parties met, in a variety of ways, approximately 85 times. [35] The Employer asserts that the only complaint related to information not received at the OCI’s JHSC is at para. 87(h) of the Particulars in which it was claimed that at a labour relations meeting on March 31, 2020, the Union “requested to review the emergency plans for OCI, an ongoing request that [h]as been on the JHSC agenda for several months prior to COVID-19. The Employer responded that they have been directed to not provide business continuity/emergency plans to the JHSC”. The Employer argues that there was no obligation on the Employer, under OHSA or the collective agreement, to “provide business continuity/emergency plans to the JHSC”. Such matters are properly the subject of other joint fora: e.g. see the Joint Ministry Employee Relations Committee (“MERC”) Memorandum from Daryl Pitfield, Executive Director, Institutional Services, and Chris Jackel, OPSEU MERC Co-Chair, regarding “Temporary Closure of the Ontario Correctional Institute (OCI) - Memorandum of Agreement (MOA)”. [36] The Employer argues that there are no particulars to suggest how the JHSC was undermined. The Employer is only required to do what the OHSA requires it do. It does not have to respond to every request the Union makes. [37] The Employer relies on Fanshawe College Fanshawe College and OPSEU, Local 110 (2013 CarswellOnt 14323, [2013] O.L.A.A. No. 408, 116 C.L.A.S. 254) (Jesin). In that case the Union grieved the fact that the employer unilaterally imposed the terms of reference for the administration and operation of the parties’ JHSC. The employer brought a preliminary no prima facie case motion in which it asserted that it was obligated under the OHSA to establish the JHSC and set its terms of administration in compliance with the OHSA. This is what it did. The board of arbitration found in favour of the employer: 11 We agree with counsel for the Employer that it is the Employer’s obligation under OHSA to establish and maintain the joint health and safety committee. As a result there is nothing inherently improper in establishing terms of reference or rules for the committee which are designed to facilitate the efficient operation of the -17 - committee and to ensure compliance with OHSA. Quite properly the terms drafted by the Employer were put before the committee for consideration and the worker members of the committee were offered the opportunity to comment on them. Any proposed changes to the rules could have been brought before the committee for consideration. 12 We would note that for the most part the rules meet the minimum requirements set out under OHSA. For example, the time allotted for meetings as well as the number of meetings required under the terms are more than required under OHSA. We also note that additional meetings may be held as required. With regard to the Employer’s organization of the committee as a subcommittee of the leadership committee, we see that complaint as a matter of form over substance. We do not see how that impedes worker participation or advocacy on the committee. We note that under the previous terms, the joint committee was described as a standing committee of the Employer’s Administrative Council and we do not see a substantial difference in making the committee a subcommittee of the leadership committee. Similarly we do not find the participation of Ms. Henry to be in violation of either the collective agreement or OHSA. She does not have a vote on the committee. Rather, she is present at meetings simply to advise as to the feasibility from the Employer’s point of view, of recommendations or suggestions that may be made by the committee. Where the Employer’s rejection of a committee recommendation or even of a worker position is in violation of OHSA, that may be remedied, either through a grievance or by the dispute resolution mechanism set out in s. 9(39) of OHSA. 13 In summary, so long as the terms do not conflict with or impede with the operation of OHSA or impede the rights or obligations regarding worker participation on the committee, we do not see any violation of the collective agreement or of OHSA in their implementation. In general, the terms in this case are in substantial compliance and but for the following caveat, we find no reason to interfere with them. [38] The Employer argues this case is effectively no different. Like the JHSC at Fanshawe, the OCI JHSC is operating completely in accordance with the OHSA. The Union’s Argument [39] The Union asks me to carefully examine what this grievance is about. On the face of the grievance, it is about whether the JHSC held meetings in response to the pandemic, not whether meetings were held by other bodies. This is a serious concern for the Union, in part, because the JHSC has much broader statutory powers than do subordinate bodies like the IPPC (which has none). The Union also -18 - has a real, authoritative, statutory role in the JSHC whereas in other committees its role is much less powerful. [40] The Union points out that its efforts to get the JHSC to assume its proper role started on March 19, 2020, when it requested that the JHSC be convened. The response to that request was an indication that the IPCC would meet on March 23. [41] On March 23, 2020, at 9:30am, the Union (Cygler, Barnes, and Stickle) met with the Employer (Hooper, Hasted, Kastner, Butler, and Sromek) to follow up on the previous local meeting that took place on March 20, 2020. During this meeting, the following took place: a. The IPCC meeting was scheduled for later in the day at 1:00pm; b. The pandemic plan was placed on a public drive; c. Symptomatic inmates were to be provided a mask; d. Everyone agreed that suspected cases of COVID-19 would trigger droplet precautions; e. The Union requested the activation of the pandemic plan, commence active screening of all with temporary screening, work from home options for non- critical staff; f. The Union offered to assist with short staffing plans; g. The JHSC meeting was scheduled for Thursday March 26 at 1:30pm; h. Transfers from Toronto South Detention Centre were to be stopped due to a confirmed case and all transfers from South West DC were to be stopped due a confirmed presumptive case. The Union requested to keep a tracking list of where inmates are coming from. [42] On March 25, 2020, at 1:30pm, an IPCC meeting took place, including attendance from Mike Parsons and Dylan Neumann from the Union, and Mr. Hasted, Ms. Butler, and Ms. Kastner from the Employer. Discussion during the meeting, amongst other things, included the following: a. It was decided that a memo will be issued to managers to increase the number of inmate cleaners for the kitchen following each meal service; -19 - b. An enhanced cleaning schedule was to be implemented immediately (there were some small additions that were made which were overlooked in the first draft); c. Storage of cleaning mattresses was discussed with practise to start immediately and various institutions were identified; d. An IPCC-subcommittee has been developed to create processes and procedures on how symptomatic/positive inmates will be moved and housed within the institution. The subcommittee will review and iron out any concerns and once procedures are agreed upon, formal recommendations will be taken to the Superintendent for approval; e. The committee discussed social distancing and ways to encourage staff and residents. Mr. Parsons requested the committee to begin to develop a comprehensive plan for social distancing of staff and inmates at the institution. The Employer representatives that were on the committee (Hasted, Kastner, Butler, Kanga, etc.) stated that social distancing is not something that they can enforce so they will not ask staff to do it. The Employer also stated that social distancing is a personal choice and that staff will come around to it in their own time; f. With respect to social distancing, bright stickers were to be placed throughout the institution approximately six feet apart to show the appropriate distance between individuals. The Employer reported that some initiatives have been undertaken such as changes to the recreation schedule and slowing down meal service to reduce the number of inmates that are in the dining hall at one time (this was a CO led initiative and not a direction from the Employer); g. The committee agreed to weekly meetings going forward. [43] On March 26, 2020, a JHSC meeting (which the Union alleges was the only JHSC meeting as the Employer refused to have further JHSC meetings) was held with the Union (Neumann, Cygler, Parsons, and Pastore) and the Employer (Kastner, Ruttle, and Theresa Tidd). Mr. Parsons prepared meeting discussion points and the Union tabled numerous requests for COVID-19 safety protocols. Some of these requests include: a. Full implementation of the “prevention” section of the OCI pandemic plan; -20 - b. Request to review crisis management/business continuity plans; c. Request to add appropriate PPE to units so that they can be immediately accessible as opposed to being stored in the shift office; d. Conduct active screening of all staff and visitors at the institution; e. Create a contingency plan for low staffing (the Employer agreed to create a low staffing plan); f. Create protocols for movement of isolated/sick residents or staff members; g. Institute a comprehensive social distancing strategy for OCI (the Employer unilaterally decided that the social distancing strategy would be discussed at the IPCC meeting and no further discussion would be conducted at the JHSC meeting); h. Increase communication regarding changes with staff and inmates. [44] The Union asserts that several other measures were discussed at the JHSC meeting on March 26, 2020, including measures that were already in effect. In addition, the Union alleges that none of the formal JHSC meeting minutes for any of the relevant JHSC meetings have been produced by the Employer. [45] On March 27, 2020, the Union (Cygler, Stickle, and Neumann) met with the Employer (Hooper, Hasted, Kastner, Butler, and Sromek). Some of the discussions are alleged to include: a. The Employer cancelled the upcoming JHSC meeting. The rationale provided was that the IPCC could be utilized for any discussions and the Employer raised concerns that the Union was using multiple avenues to address issues. b. The Union raised concerns over lack of union representation in the IPCC process; c. Pandemic plan concerns were discussed. The Employer stated to bring the concerns to the IPCC meeting in 6 days on Thursday April 2, 2020; d. Various alternative work arrangements were proposed; -21 - e. A follow-up meeting was scheduled for Tuesday March 31, 2020. (emphasis added) [46] On March 30, 2020, Mr. Cygler emailed Ms. Hooper regarding membership gaps on the IPCC and issues with how the IPCC was functioning. Mr. Cygler requested for Mr. Parsons to join the committee as an interim correctional officer representative as the regular member was out of the workplace. Mr. Cygler also requested to be the programs staff representative on the committee. The list of requests was provided to the Employer to implement. Mr. Cygler did not raise further concerns about COVID-19 issues being exclusively discussed at the IPCC if the requests could be implemented and JHSC remains involved if a positive case were to present at OCI. [47] Another meeting took place on March 31, 2020, where the Union (Cygler, Parsons, Barnes, Zalman, and Stickle) met with the Employer (Hooper, Kastner, and Sromek). The following was discussed: a. The Union continues to advocate for work from home options for staff. The Superintendent Hooper remains firm that her response from Region was that all Page 26 of 60 staff are “wall-to-wall critical”. The Employer raised concerns about confidential documentation being used at home, although managers regularly work from home with confidential documents; b. The Employer stated that direction from the ADM has been that everyone is critical and cannot work from home. The local Employer is only willing to adjust start and end times of shifts; … c. The Union’s position was that staff identified how they can work from home and that confidentiality is not a concern; d. The Employer provided the Union with a document for review and feedback on a critical/low staffing contingency plan; e. The Employer is now willing to explore implementing PPE onto units and admits that leaving it with Shift IC may not have been the best option; f. The Union pointed out that the ADM’s position in the daily teleconferences is that pandemic plans at institutions should be active. The local Employer -22 - disagrees, only “parts” have been implemented and the pandemic plan is not active; g. The Union raised concerns about the IPCC process including the lack of live minutes, the lack of Union sign off on minutes, communication of decisions to all staff and the frequency, or rather infrequency of meetings; h. The Union requested to review the emergency plans for OCI, an ongoing request that gas been on the JHSC agenda for several months prior to COVID-19. The Employer responded that they have been directed to not provide business continuity/emergency plans to the JHSC; i. The Employer reported that they are working on a plan for active screening; j. The Employer advised that a staff appreciation even has been scheduled for April 3, 2020; k. A follow up meeting was scheduled for Tuesday April 7, 2020. [48] On April 9, 2020, the Union (Cygler, Stickle, who was later kicked out of the meeting, Zalman, and Barnes) met with the Employer (Hooper, Butler, and Sromek) for an ad hoc meeting to review the final draft of the active screening process. The Employer reported that it was still waiting for thermometers. Other topics of discussion included: … d. The Union requested a JHSC follow-up meeting. [49] On April 14, 2020, at 1:00pm, the Union (Cygler over the phone, Barnes, Zalman, and Neumann) met with the Employer (Hooper, Hasted, Kastner, and Sromek) for a labour relations meeting. Some topics of discussion include: … b. The Employer Co-Chair was to follow up to set up a JHSC meeting; c. With respect to COVID-19 cases, there was 1 confirmed, 1 presumptive and 1 family member; -23 - d. The Union raised concerns with delays in communication going out to staff; e. The Union raised concerns with the number of sick residents. The Employer responded that the sick residents would not be reassessed as they are all “cold related”; f. Further to consultation with the Chief Medical Officer, the Employer was not looking to restrict movement within the institution. This issue was referred to IPCC as there was only 1 confirmed case at this time; g. The Employer indicated that regular recreation programming was to continue; h. Personal masks and waiver. [50] The essence of the Union’s grievance is that, as it asserts can be seen by the foregoing allegations of fact, the Employer moved work from the JHSC to other committees, particularly the IPCC. The Union notes that the IPCC is an Employer established committee, controlled by the Employer. On the other hand, as its name suggests, the JHSC is a joint union-management committee. It has a number of powers as set out in s. 9(18) of the OHSA. These include the power of a co-chair of the JHSC to make recommendations to the Employer. Such recommendations must be responded to in writing. Unlike other committees, the Union is an equal partner in the process with statutory rights. [51] The Union does not dispute that the OHSA requires the JHSC to meet at least every three months and it did so. However, it notes that the OHSA states that the JHSC shall meet “at least” every three months. It argues that in the extreme circumstances that existed at the start of and throughout the pandemic, the Employer’s obligation in s. 25(2)(h) to take every reasonable precaution meant that it should have scheduled more meetings of the JHSC than the bare minimum provided for under the OHSA. [52] The Union notes that that it was raising concerns about the effectiveness of the IPCC but these concerns were not adequately addressed. In principle, the IPCC process allowed the Employer to do whatever it wanted with no practical way for the -24 - Union to meaningfully object or even participate. It did not address adequately the important purposes of the JHSC, especially during the pandemic. [53] The Union asserts that this case is unlike Fanshawe College, relied on by the Employer. That case was not about whether the JHSC was operating but was instead about how it was operating. The case before me is whether the JHSC at OCI was operating sufficiently. The Union asserts that it was not operating sufficiently because the Employer was not allowing that to happen by refusing to meet. In doing do so, the Employer violated s. 25(2)(h) because it did not take every reasonable precaution in the circumstances by scheduling more JHSC meetings. Employer Reply [54] The Employer argues that the Union’s particulars make it clear that the JHSC meeting minutes were provided in accordance with the OHSA. The JHSC also met as often as was required by the OHSA. Accordingly, no contravention of the OHSA is disclosed. No other breach of the OHSA or the collective agreement has been identified. There is therefore no prima facie breach of the OHSA or the collective agreement. Decision [55] The test for a no prima facie case motion is set out in, among other cases, Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), (Anderson)2015 CanLII 60449 (ON GSB) (Anderson): [3] There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to -25 - substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion. …. [6] The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. [56] I have been provided no authority which supports the proposition, inherent in its argument, that the requirement in s. 25(2)(h) to “take every precaution reasonable in the circumstances for the protection of a worker” (and broader collective agreement provisions) could not mean that scheduling more meetings of a JHSC is a reasonable and required precaution in any circumstance. Of course, the fact that the Union’s argument is novel does not mean that it does not discloses a prima facie beach of the OHSA. [57] I observe that the requirement to hold a certain number of meetings is framed as “at least” one every three months. I cannot say at this time that whether the scheduling of meetings more often than once every three months is influenced by s25(2)(h). However, I point out that if that is the case, the circumstances of the pandemic would seem to the kind of circumstances where such an obligation might arise. -26 - This includes whether the holding of IPCC meetings obviates the need to hold more JHSC meetings. Moreover, it is not at all clear that that the requirement in Article 9.1 of the collective agreement that the parties shall co-operate to the "fullest extent possible...in the reasonable promotion of safety and health of all employees" has been met in these circumstances. [58] In these circumstances I cannot say that the grievance does not disclose a prima facie breach of the OHSA or the collective agreement. The Employer’s preliminary motion is accordingly dismissed. Dated at Toronto, Ontario this 18th day of June 2024. “Brian McLean” Brian McLean, Arbitrator