Loading...
HomeMy WebLinkAbout2009-2981.Union.10-08-09 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2009-2981 UNION#2009-0999-0094 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 Community Safety and Correctional Services/Ministry of Children and Youth Services) Employer BEFOREVice-Chair Randi H. Abramsky FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Lisa Compagnone Ministry of Government Services Legal Services Branch Counsel HEARINGAugust 5, 2010. - 2 - Decision [1]On November 18, 2009, the Union filed a policy grievance which alleges that the ?Employer has violated specifically, but not exclusively, Articles 2, 3, and 9 of the Collective Agreement in regards to the employer refusing to provide H1N1 vaccinations to institutional employees.? The remedy sought was a ?declaration of the violation? and ?[f]ull redress for all affected employees.? At the start of the hearing, the Employer raised two preliminary objections to the Board?s jurisdiction to hear this grievance. [2]The first preliminary objection asserts that decisions regarding vaccination priorities were not made by the Employer, but by Local Public Health Units in conformity with priorities established by federal authorities. Therefore, the Employer alleges that the issue of ?refusing to vaccinate? staff does not arise under the collective agreement. The second preliminary objection asserts that the grievance is moot. This Decision addresses the Employer?s motions. FACTS [3]Noviva voce evidence was called. Instead, for the purposes of the Employer?s motions only, the parties relied on the Union?s particulars and the documents introduced into evidence. [4]The particulars ? and documents ? establish that in and around April 2009 incidents of a new strain of influenza virus was discovered in Mexico and publicized widely in the - 3 - media. The influenza was commonly referred to as ?swine flu? and later identified as the H1N1 flu strain. It quickly spread to other countries, including Canada. [5]Prior to this, the last time a similar strain of virus circulated around the world was in the late 1950?s. As a result, most people had not been exposed to H1N1 and had no immunity to the virus. H1N1 spreads easily from person-to-person through inhaled droplets and small sprays when an infected person coughs or sneezes, and by contact with contaminated surfaces. [6]On or around June 11, 2009, the World Health Organization (WHO) declared a global pandemic with respect to the H1N1 flu and raised the global pandemic level from Phase 5 to Phase 6, signaling that a global pandemic was underway with sustained human-to- human transmission. [7]Vaccines are generally seen as the most powerful public health tool for the prevention of influenza. A new vaccine for H1N1 had to be developed, as the ?regular? seasonal flu vaccine would not have been effective at immunizing individuals against H1N1. The vaccine that was eventually developed was approved by Health Canada for use on Canadians on or around October 21, 2009. [8]As a result, the 2009 flu season was ?different?. There was the regular seasonal flu and H1N1, which necessitated two vaccines. To deal with both, there was a three-phase vaccination plan introduced. Phase I (slated for October) was seasonal flu immunization for people age 65 or older and residents of Long-Term Care Homes. Phase II (slated for - 4 - November/December) was H1N1 vaccinations for priority groups, followed by others who would benefit from immunization. Phase III (slated for December/January) was universal seasonal flu immunization for all people six months of age or older. [9]The first confirmed case of H1N1 in Ontario occurred on or around April 28, 2009. The first H1N1 death in Ontario took place on or around May 25, 2009. [10]On or around October 26, 2009, Ontario began a mass H1N1 immunizations program, focusing first on ?priority groups?, which included: pregnant women; children from six months to five years of age; people who live with children under six months old; people under 65 with underlying medical conditions; immune-compromised people and those caring for them; people living in remote and isolated communities. These priority groups were established by a Task Force ?established to review national guidelines for the H1N1 response?? by the Public Health Agency of Canada. These recommendations were incorporated in a document entitled ?Guidance Document on the Use of Pandemic Influenza A (H1N1) 2009 Inactivated Monovalent Vaccine? issued on October 21, 2009 by the Public Health Agency of Canada. The priority groups were identified not because they were all at a greater risk of contracting the H1N1 virus, but because they have more risk of developing complications from the H1N1 flu virus. Neither Correctional Officers nor Youth Workers were included on or within the list of ?priority groups?, nor were inmates or youth incarcerated in provincial institutions. [11]The Ontario Ministry of Health and Long-Term Care (MOHLTC) was responsible for overseeing the province?s ?Pandemic Influenza H1N1-2009 Immunization Program? and - 5 - for ensuring that it conformed to federal recommendations. The Ministry also approved specific organizations as delivery agents to administer the vaccine. These included Health Care Facilities (public hospitals, long-term care homes, out-patient clinics ? on a case-by-case basis); Community Care Access Centres; Primary Care Providers; Universities and Colleges Health Services; and Correctional Facilities Health Services. Correctional Facilities Health Services care for the health of inmates, not staff. [12]Local Public Health Units, however, were responsible for the actual distribution and delivery of the vaccine. This is seen in a Q and A document issued by MOHLTC in October 2009, at p. 3: Q.14: My organization is on the MOHLTC list of approved vaccine delivery agents, but my public health unit is not allowing my organization to participate in the H1N1 -2009 Immunization Program. Can I participate? A. No, it is at the discretion of each local public health unit to determine the roll out of the H1N1-2009 Immunization Program in their jurisdiction. This would include the selection of the vaccine delivery agents approved to administer the H1N1-2009 vaccine locally. ?[P]ublic health units are not required to use every approved vaccine delivery agent listed. Similarly, an October 1, 2009 memo from the MOHLTC to family doctors and paediatricians stated: Each local health unit has the authority and responsibility to lead and coordinate the H1N1 vaccine delivery strategy for their jurisdiction. Health units are responsible for determining who in their community will offer H1N1 vaccine. ? In the same document, the MOHLTC wrote that although the H1N1 vaccine was ?expected to be available in November??, ?[b]ecause the vaccine will not be available all at one time, a sequenced approach to provide vaccine to groups identified in the - 6 - National Guidance on H1N1 Vaccine Sequencing document will be offered the vaccine first.? [13]On October 23, 2009, two internal memos were issued to Regional Directors, Adult Institutional Services, Adult Community Services and Corporate Directors. One was from Loretta Eley, Director, Strategic and Operational Initiatives Branch, regarding ?H1N1 Update.? In it, she states, in part, as follows: While inmates will be vaccinated at all institutions, the decision was made not to hold staff vaccination clinics at institutions this year due to the small uptake by staff in previous years. In the past few days Medical Officers of Health in various locations have made a number of decisions that will result in different responses to vaccination availability and targeted groups. Public Health has been mandated by the Ministry of Health and Long-Term Care to administer the vaccination programme; hence Medical Officers of Health have the authority to determine the process to be applied in each health region. ? This memo led to the Union?s concern that inmates would be receiving H1N1 vaccine, but not staff. [14]On the same date, however, Steven Small, Assistant Deputy Minister, Adult Institutional Services sent an internal memo to the same recipients regarding ?Pandemic H1N1 (pH1N1) Vaccine.? It announced the approval of the H1N1 vaccine and that it would be released ?at intervals over time and in manageable quantities? in the recommended sequencing order which was outlined in the memo. It further states that ?[a]ll correctional institutions will be provided with sufficient quantities of the pH1N1 vaccine to immunize inmates in accordance with the sequencing listed above.? (emphasis added). It also states that ?Ministry staff, including ministry health care staff, wanting to receive a vaccination should attend a clinic in their community. ?? - 7 - The parties agreed that, with some exceptions, inmates were immunized in accordance with the priority sequencing list. [15]On October 26, 2009, Deputy Minister Ron McKerlie, Ministry of Government Services, sent an email to all staff regarding ?Important H1N1 Vaccine Information.? It announced the launch of phase two of the three-phase flu vaccination plan, beginning with the priority groups. It further states: OPS Workplace Flue Shot Clinics To help employees make immunization plans, I want to let you know about OPS plans for workplace flu shot clinics. The OPS will not be offering H1N1 flu workplace vaccination clinics. Those at greater risk of serious illness from H1N1 flu virus are encouraged to seek medical advice and receive the vaccine as early as possible consistent with Ontario?s priority sequencing approach. ? OPS workplace seasonal flu shot clinics are planned for December/January. Information on dates and locations will be made available shortly. ? [16]On November 10, 2009, the Chief Medical Officer of Health for Ontario announced that the province was expanding its vaccine program to other groups who would benefit from immunization, including first responders and workers in closed facilities. This included Corrections Services staff in adult correctional institutions and staff within the Ministry of Children and Youth Services who operate and maintain secure custody facilities for youth. [17]On December 1, 2009, Assistant Deputy Minister Steven Small announced that the Ministry was providing workplace flu clinics at a number of Correctional Centres - for - 8 - seasonal flu and H1N1 for OPS staff, with availability of the vaccines subject to local Public Health Unit distribution practices. [18]In and around December 2009 and January 2010, H1N1 reports and activity in Ontario were generally in decline. By the end of March 2010, the Ministry discontinued its screening of Non-Health Care Worker Screening for influenza-like illnesses, because ?[t]he threat of the pandemic H1N1 flu has now been significantly reduced.? REASONS FOR DECISION [19]For the reasons set forth below, I conclude that the grievance in this case is moot. Accordingly, I need not address the Employer?s other jurisdictional argument. [20]The leading Canadian decision in regard to mootness is Re Borowski v. Canada (Attorney General)[1989] 1 S.C.R. 342 (S.C.C.). There, an action was brought claiming that the therapeutic abortion provisions of the Criminal Code violated the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms. Before the case could be heard before the Supreme Court of Canada, the challenged abortion provisions were struck down by the court in another decision, and thus ?a serious issue existed as to whether the appeal was moot.? (Decision, par. 2) The Court unanimously determined that the appeal was moot, and Mr. Justice Sopinka, speaking for the court, discussed the doctrine of mootness, as follows, at par. 15: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the - 9 - case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the right of the parties, the case is said to be moot. ?. The first step, according to the court, is ?to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.? If the answer is ?yes?, then it must be determined if the tribunal ?should exercise its discretion to hear the case.? (Decision at par.16) [21]InBorowski, the court determined that there was ?no longer a live controversy or concrete dispute as the substratum of Mr. Borowski?s appeal has disappeared.? (Decision, par. 26) The basis of the appeal ? that certain sections of the Criminal Code were unconstitutional ? was moot because the disputed provisions had already been struck down in another case and thus ?the raison d?etre of the action has disappeared.? (Decision, par. 26). [22]The court reviewed a number of situations that had been determined to be moot. Citing the situation in International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders? Exchange,[1967] S.C.R. 628, the Court noted that the cessation of a strike between the parties ended the actual dispute over the validity of an injunction prohibiting certain strike action by one party. The Court stated that, at times, ?[i]ssues in contention may be of a short duration resulting in an absence of a live controversy by the time of appellate review.? (Decision, par. 21). - 10 - [23]Another example cited by the Court was The King ex rel. Tolfree v. Clark, [1944] S.C.R. 69, where the court refused to grant leave to appeal to applicants seeking a judgment excluding the respondents from sitting and exercising their functions as Members of the Ontario Legislative Assembly, when the Legislative Assembly had been dissolved prior to the hearing before the court. The Court there stated at p. 72: ?It is one of those cases where, the state of facts to which the proceedings in the lower Courts related and upon which they were founded having ceased to exist, the sub-stratum of the litigation has disappeared.? [24]The Employer asserts that this is the situation here ? specifically that the H1N1 crises is over, and that a decision by the Board would have no practical effect on the parties. It asserts that there is no live controversy between the parties. It argues that the 2009 H1N1 crises was a unique set of circumstances, unlikely to be repeated, and that a decision on the merits would therefore provide no guidance to the parties in the future. [25]The Employer also notes that although the grievance requests ?[f]ull redress for all affected employees?, there were no particulars provided as to any losses or damage caused to individual employees by the Employer?s actions. Accordingly, the only potential relief is a declaration which, in its view, would have no practical effect, except to perhaps ?score a debating point for one side or the other.? Re Welland County Roman Catholic Separate School Board v. Ontario English Catholic Teachers Association th (Welland Unit)(Preparation and Planning Time Grievance) (1992), 30 L.A.C. (4) 353, par. 17 (Brunner). - 11 - [26]InRe Welland County Roman Catholic Separate School Board, the grievance alleged that the school board violated a memorandum of settlement by failing to hire a certain number of additional teachers to provide preparation and planning time to the full-time teachers. But by the time the hearing was held, the school year in question had ended and only a declaratory order of violation was sought. No damages were alleged as a result of the breach. There was no similar provision in the collective agreement which was set to expire and, accordingly, the matter was not one that was like to occur again. The board determined that the issue was ?moot?, and that no declaratory order as to breach or compliance should be issued as no useful or practical purpose would be served in so doing. (Re Welland, at par. 17). The Employer also cites to Re Renfrew County District School Board and Elementary Teachers? Federation of Ontario (Policy Grievance Re Threatened Illegal Strike), unreported decision of Arbitrator Beck (April 24, 2008). [27]The Union acknowledged at the hearing that if the grievance is narrowly construed ? as limited to the H1N1 vaccination ? then the grievance would be moot. It argues, however, that the grievance should be more broadly construed as pertaining to pandemics in general, with the H1N1 being the immediate circumstance in which the dispute arose. It asserts that the H1N1 pandemic is not the first pandemic that has occurred and won?t be the last. It could happen again, the Union argues, 50 years from now or next year. Consequently, it contends that a decision on the merits could be of assistance to the parties in the future. [28]The Union points to one of the documents in evidence which shows that ?Ontario has been preparing for an influenza pandemic for several years? and had developed a plan in - 12 - 2004, with continual updating ?to ensure that Ontario is well prepared.? This shows, it asserts, that another pandemic may well occur in the future, so a declaration as to the Employer?s obligations would not be moot. [29]In the alternative, the Union argues that the Board should exercise its discretion under Re Borowski, supra, to hear the case on the merits. It argues that because another pandemic may occur in the future the same situation might arise - that by the time the issue was litigated, the crises would be over and they would again be facing the contention that the dispute was moot. It asserts that the issue may continually escape arbitral review unless a determination on the merits is permitted. [30]The Union further contends that the possibility of a future pandemic is a collateral consequence that flows from this dispute which require a determination. It asserts that the health and safety concerns which underlie the grievance, though perhaps less pressing now that the crises has abated, are still of real concern to employees and the Union. It asserts that, unlike the situation in Re Welland County Roman Catholic Separate School Board, supra, which pertained to a one-year memorandum of settlement, the grievance here is based on continuing provisions in the collective agreement. It also asserts that a decision will not be merely a ?debating point? because the collective agreement continues until 2012 and therefore collective bargaining negotiations will not be taking place any time soon. [31]In support of its contentions the Union cites to the following cases: Re Durham Region th Roman Catholic Separate School Board and C.U.P.E., Local 218 (1991), 19 L.A.C. (4) - 13 - 72 (Brandt); Re OPSEU (Ferraro et al.) and Ministry of Community and Social Services (2007), GSB No. 2000-1200 et al. (Mikus); Re OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services (1998), GSB No. 1925/96 (Abramsky). [32]In reply, the Employer argues that the grievance refers to the Employer?s alleged ?refus[al] to provide H1N1 vaccinations to institutional employees.? It does not refer to pandemics generally, but to the situation that arose in 2009 specifically, which has now become moot. It submits that even if pandemics occur in the future, we cannot know how they will enfold or if an issue regarding vaccinations would arise. It submits that the vaccination issues in regard to H1N1, with shortages and priority groups, was a unique situation. [33]Having considered the evidence and the arguments of the parties, it is my conclusion that the grievance is moot. The grievance, as written, clearly pertains to the Employer?s alleged refusal ?to provide H1N1 vaccinations to institutional employees.? That issue, because of subsequent events, is no longer a live controversy ? leaving only an abstract question that will not have the effect of resolving some controversy which affects or may affect the rights of the parties. [34]No individual losses or damages have been claimed. The only relief sought is a declaration. But with the passing of the H1N1 crises, the issue of vaccinations for staff ? the actual dispute between the parties - ended, and no present live controversy exists which affects the rights of the parties. The reason d?etre of the action has disappeared. - 14 - [35]Even if the grievance may be given a broader construction, the same conclusion applies. A decision on the merits would not, in my view, provide future guidance to the parties. It would be an academic exercise only. This is because a decision about the Employer?s obligation to provide a vaccine to its employees during a pandemic is fact specific. Even if I concluded that there was no violation here, that does not mean that in the future, under different facts, an obligation would not arise, or vice versa. The Employer?s obligation to vaccinate employees is something that must be determined in context. [36]The same argument was raised in Re Renfrew County District School Board, supra. In that case, events took place in the time period leading up to a potential strike in 2006 which were the subject of an application for declaratory relief before the Ontario Labour Relations Board (OLRB) and a grievance. The matter before the OLRB was adjourned because a settlement for a new agreement was imminent and subsequently reached. No strike resulted and the application before the OLRB was withdrawn. The grievance, however, was brought to arbitration in late 2007. At the hearing, the Union argued that the grievance was moot and the arbitrator concurred, stating at p. 9: ?I agree that the matter is entirely moot and that no useful purpose would be served by an interpretive decision and declaration at this time. There is simply no labour relations reason to rule at this time and it is far from clear that anything helpful would flow from such a ruling. ?? [37]The Employer argued, however, that ?an interpretation of the collective agreement in the context of the facts here, is required for the parties in terms of how to govern their conduct going forward.? (Decision at p. 10). The arbitrator, however, determined that the matter ?should only be dealt with in the context of a live situation, rather than some 1-1/2 - 15 - years after the matter was settled.? (Decision, p. 10) The decision later quotes from an unreported decision of Arbitrator Burkett in Trillium Lakelands District School Board v. Elementary Teachers? Federation of Ontario (Burkett, November 19, 2007), in which the board ruled, in a similar situation, that the dispute was rendered moot due a last minute settlement. The arbitrator determined that the grievance involved ?an issue that ought to be decided in response to a real controversy and on the basis of hard facts so that nuances can be understood and applied.? Arbitrator Beck stated that he ?would adopt the language of Arbitrator Burkett on the facts of this case.? (Decision at p. 16). [38]I reach the same conclusion here. The issue of the Employer?s obligation to provide a vaccination to staff in the event of a future pandemic should be decided based on the specific facts that exist at the time. The situation in 2009 was, for a variety of reasons, quite unique. A decision on the H1N1 crises of 2009 would not be useful for future potential pandemics which would present their own unique circumstances and issues. [39]The Union also contends that I should exercise my discretion to decide the dispute because the issue is one that is capable of repetition but evading review. Re Borowski, supra at par. 36. The Court in Re Borowski stated, at par. 36: The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. In this regard, I conclude that in light of the GSB?s Interim Relief Rule, this type of dispute will not always have disappeared before it is ultimately resolved. Under the rule, a party may seek interim relief from the Board. The applicant party must set out why - 16 - ?interim relief is necessary on an urgent basis as well as the specific relief sought.? The Union would be free to argue, if the situation occurred again in the future, that a determination regarding the Employer?s obligation to provide a vaccine in light of a pandemic situation was needed on an urgent basis. The GSB, under the rule, has the authority to determine if the matter would be appropriate for interim relief, or if the matter is more appropriately deferred to the regular scheduling process. In this way, the matter could be brought quickly to the Board, and the issue would not have disappeared before the matter could be addressed. [40]Finally, I also conclude that there are no ?collateral consequences? to the Employer?s actions in regard to vaccinations that require a decision. As noted, no individual damages are alleged and there are no continuing impacts or consequences that flow from the situation. This makes the Board?s decisions in Re OPSEU (Union Grievance), supra, and Re OPSEU (Ferraro et al.), supra, distinguishable. In both those cases, there were collateral consequences that required a determination. CONCLUSION [41]For the reasons set out above, I conclude that the grievance is moot and must be dismissed. I make no ruling on the Employer?s other preliminary motion. th Dated at Toronto this 9 day of August 2010. Randi H. Abramsky, Vice-Chair