It would appear that extraordinary times lead to extraordinary court decisions. On April 23, 2020 Justice Morgan of the Ontario Superior Court granted an injunction to the Ontario Nurses Association ("ONA") which, among other requirements, mandated that nurses at four long-term care ("LTC") homes be fitted with N-95 masks.
In response to COVID-19 outbreaks in the 4 LTCs, ONA initially sought expedited arbitration proceedings to determine whether the LTCs had violated their respective collective agreement obligations, various Directives of the Chief Medical Officer of Health (CMOH) and the OHSA with respect to the provision of appropriate personal protective equipment ("PPE"), including N-95 masks, and infection control procedures. When ONA could not get the arbitrations expedited they looked to the Court for injunctive relief.
At issue was the adequacy of PPE for nurses working at the 4 LTCs. At the time of the Application, 110 residents and at least 7 nurses had contracted COVID-19. At least 54 residents had passed away and one nurse had to be hospitalized. As these numbers had been rising steadily the court determined this was an appropriate case for an "urgent hearing".
In its Application for injunctive relief, ONA alleged that the lack of PPE and infection control procedures amounted to breaches of the collective agreements, the OHSA, the CMOH Directives and s.7 of the Charter of Rights and Freedoms (life, liberty and security of person).
An injunction is an extraordinary remedy, particularly where the issues in dispute are ones characterized as labour relations matters. Justice Morgan acknowledged that ONA was seeking an unusual form of interlocutory injunction but ultimately agreed that the court proceeding was the only way ONA could have the safety issues addressed with immediate attention. This, despite proceedings available to ONA under the OHSA for trained inspectors to determine if the nurses were, in fact, in danger and the LTCs in breach of their statutory obligations as well as appeal rights to the Ontario Labour Relations Board ("OLRB"). Justice Morgan determined that the OLRB had only limited authority in an appeal and the process was not "an alternative to the full adjudication of the issues that would be available with a labour arbitration".
Interestingly, just one day after Justice Morgan's decision, the OLRB issued a decision (with some identical orders) involving three LTCs in a proceeding brought by SEIU Health Care which included the following:
- Sending a Ministry of Labour inspector to physically visit the workplaces and conduct inspections under the Ontario Occupational Health and Safety Act on a weekly basis. The inspector will provide a written report management and the SEIU Staff Representative by email within 24 hours of each visit. The inspector will also attend every meeting of the workplaces' joint-health-and-safety committees.
- Informing employees and the Union of (i) resident cases of Covid-19, (ii) resident deaths from Covid-19, (iii) staff cases of Covid-19 and (iv) staff deaths from Covid-19 on a daily basis.
- Implementing administrative controls, including cohorting of residents with COVID-19.
- Requiring all efforts be made to ensure that each facility is appropriately staffed. Management will be required to provide a staffing report of the number of staff present on each unit on a weekly basis.
- Requiring all visitors and staff in the facilities wear appropriate PPE.
But back to the injunction. Justice Morgan determined that ONA had met the onerous 3-part test required for the granting of injunctive relief - 1. Serious issue to be tried; 2. Irreparable harm; 3. Balance of convenience favouring the nurses. Justice Morgan determined that the safety of the nurses and residents outweighed any prejudice to the LTCs trying to manage scares resources. Justice Morgan further held that the nurses should not be impeded in making point of care assessments as to what PPE is appropriate in the circumstances and effectively removed the managerial oversight over same contemplated in the CMOH Directives. In allowing the injunction, Justice Morgan ordered that N-95 masks be provided whenever a nurse assessed that such was appropriate at point of care. Justice Morgan also ordered the LTCs to implement administrative controls such as isolating and cohorting residents and staff during the COVID-19 crisis.
This decision underscores that despite the high degree of deference courts have traditionally afforded both labour arbitrators and the OLRB, judges will not hesitate to intervene in matters of labour relations when compelled by the facts to do so. Given the nature of the injunctive relief ordered, Justice Morgan effectively stepped into the role of a labour arbitrator and Vice-Chair of the OLRB since it is now unlikely these matters will be heard by an arbitrator before the COVID-19 crisis has passed. And given the OLRB's decision on April 24th it is difficult, with the greatest of respect, to understand why the court exercised its discretion in the circumstances. It's not the result that is troubling necessarily but rather the ease with which the Court stepped into the role of expert labour adjudicator, and set the stage for "forum shopping" that may have many practitioners in this field scratching their collective heads.
Article orignally published on 27 April 2020
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