



COURT OF APPEAL FOR ONTARIO

CITATION: Toronto East General Hospital v. Ontario Nurses'
    Association, 2018 ONCA 175

DATE: 20180223

DOCKET: C63850

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

Toronto East General Hospital

Applicant (Respondent)

and

Ontario Nurses Association
and Felicity
    Briggs, Arbitrator

Respondents (
Appellant
)

Kate A. Hughes, Danielle Bisnar and Simran Prihar, for
    the appellant

David A. Stamp and Allan Wells, for the respondent

Heard: November 21, 2017

On appeal from the judgment of the Divisional Court
    (Justices Michael R. Dambrot, I.V.B. Nordheimer and George W. King), dated
    November 24, 2016, with reasons reported at 2016 ONSC 7331, granting judicial
    review of a decision of Arbitrator Felicity Briggs, dated September 16, 2014.

By the Court:


OVERVIEW

[1]

This appeal concerns a labour arbitrators interpretation of a
    collective agreement to which the appellant, the Ontario Nurses Association
    (the ONA), and the respondent, the Toronto East General Hospital (the Hospital),
    are parties. The underlying dispute arose out of the Hospitals decision to
    close a number of beds in one of its units. The closure reduced the number of
    hours of work available for the Hospitals regular part-time nurses (RPT nurses). The
    Hospital spread the reduction in hours across the schedules of all RPT nurses
    on the unit, regardless of their seniority. The ONA filed a grievance alleging,
    among other things, that the Hospital had breached the collective agreements lay-off
    provisions, which defined a lay-off as a reduction in a nurses hours of
    work.

[2]

A labour arbitrator agreed with the ONAs position and allowed the
    grievance. The Divisional Court set aside the arbitrators award on judicial
    review, reasoning that since the Hospital had no obligation to provide work to
    RPT nurses, a reduction in their working hours could not amount to a lay-off.

[3]

On appeal, the ONA submits the Divisional Court erred in overturning the
    arbitrators decision. We agree and would allow the appeal, for the reasons
    that follow.

FACTS

The Collective Agreement

[4]

The collective agreement in question consists of two parts: centrally
    negotiated provisions (the Central Agreement) and locally negotiated
    provisions (the Local Agreement). The Central Agreement is negotiated between
    the ONA and the Ontario Hospital Association (OHA) on behalf of 133
    participating hospitals, including the Hospital. The Local Agreement is
    negotiated directly between the Hospital and the ONA.

[5]

Two aspects of the collective agreement are central to this appeal  its
    classification of nurses, and its lay-off provisions.

Classification of Nurses

[6]

The collective agreement distinguishes between full-time, regular
    part-time and casual nurses. Article 2.04 of the Central Agreement defines a
    full-time nurse as a nurse who is regularly scheduled to work the normal
    full-time hours referred to in Article 13. Article 13, in turn, provides
    that:

The following

provision

designating

regular

hours

on

a

daily

tour

and

regular

daily tours

over

the

nursing

schedule

determined

by

the

Hospital

shall

not be construed

to

be

a

guarantee

of

the

hours

of

work

to

be

performed

on

each

tour

or
    during

each

tour

schedule.




(a) The normal daily tour shall be seven and one-half (7
    1/2) consecutive hours in any twenty-four (24) hour period exclusive of an
    unpaid one-half (1/2) hour meal period



(c) The regular daily tours of duty of a full-time nurse
    shall average five (5) days per week over the nursing schedule determined by
    the Hospital. Full-time schedules shall be determined by local negotiation
    [Emphasis Added].

[7]

A RPT nurse, as defined in Article 2.05, regularly works less than the
    normal full-time hours referred to in Article 13 and ... offers to make a
    commitment to be available for work on a regular predetermined basis  [which]
    shall be determined in local negotiations. That regular predetermined basis
    is outlined in Article D.4 of the Local Agreement, which stipulates, among
    other things, that a RPT nurse must be available to work the number of shifts
    and hours as stated in the posting notice advertising the nurses position issued
    by the Hospital. Article D.4(7) states that RPT nurses may be scheduled up to
    their commitment, and may be offered additional shifts up to full-time hours
    [w]hen all part-time nurses have been scheduled to their commitment.

[8]

Casual nurses are defined in the collective agreement as part-time
    nurses that do not meet the criteria for regular-part time status. The Hospital
    is prohibited under Article D.7(1) of the Local Agreement from utilizing any casual
    nurses until all RPT nurses have been scheduled up to their commitments.

Lay-Off Provisions

[9]

Article 10.08(a) of the Central Agreement defines a layoff as including
    a reduction in a nurses hours of work and cancellation of all or part of a
    nurses scheduled shift. The collective agreement places several procedural
    obligations on the Hospital with respect to lay-offs. Among other requirements,
    Article 10.09(a) provides that nurses shall be laid off in the reverse order
    of seniority provided that the nurses who are entitled to remain on the basis
    of seniority are qualified to perform the available work. Article
    10.09(b)(iii)(C) bars the Hospital from reducing a nurses hours of work to
    prevent or reduce the impact of a layoff, unless it has the ONAs consent.

Events Giving Rise to the Grievance

[10]

As
    noted above, the ONAs grievance stemmed from the closure of eleven beds in a
    unit at the Hospital, which reduced the hours of work available for RPT nurses.
    Following the closure, the Hospital scheduled its RPT nurses below their work
    commitments, without regard for seniority and without complying with the
    collective agreements lay-off provisions. The ONA argued that the Hospitals
    scheduling decisions breached the collective agreement. The matter proceeded to
    arbitration.

PREVIOUS DECISIONS

The Arbitrators Decision

[11]

The

parties agreed to bifurcate the
    arbitration hearing and elected not to call evidence. At the first stage of the
    hearing, the parties posed

two

questions to the arbitrator concerning

the

proper

interpretation of

the

collective agreement:

(a) Does the collective agreement require the Hospital to
    schedule a [RPT nurse] up to his/her commitment to be available, regardless of
    whether the hours of work are available? [the First Question"]

(b) Where a [RPT nurse] is scheduled less than his or her
    commitment to be available and has been scheduled up to his or her commitment
    on a previously posted schedule, does the scheduling of a [RPT nurse] on a
    subsequently posted schedule below his or her commitment to be available
    constitute a layoff? [the Second Question"]

[12]

With

respect

to

the

First

Question,

the

arbitrator

held

that

the

Hospital

had

no

obligation

to provide RPT nurses with work that was not available, but
    noted at para. 38 that where the Hospital fails to schedule a [RPT nurse] up
    to her commitment, there may be [c]ollective [a]greement provisions that are
    triggered. The arbitrator also observed that "the situation in this case ...
    is not one where there are no available hours of work. There is still work to be
    done by [RPT nurses]. There is less work because of the bed closures, but there
    is still available work.

[13]

Turning

to

the

Second

Question
,
the arbitrator concluded that the
    Hospital had triggered the collective agreements lay-off provisions by
    reducing the working hours of its RPT nurses without regard for seniority. In
    reaching this conclusion, the arbitrator rejected the Hospital's

submission

that

the collective agreement

provides no

"benchmark to measure a reduction in working hours for

RPT nurses
,
for two reasons.

[14]

First,
    the arbitrator was not convinced that

a
contractual

benchmark

was

necessary  presumably, because the
    Second Question referred only to nurses who had previously been scheduled up to
    their commitments.

[15]

Second,

the arbitrator found that in any event,
    the
collective
agreement

sets out

an appropriate

benchmark for
    measuring a reduction in a RPT nurses working hours: the hours for which each
    RPT [nurse] has committed to work as reflected in the job postings for regular
    part-time positions issued by the Hospital. In support of this conclusion, the
    arbitrator noted that Article D.7 of the Local Agreement obliges the Hospital
    to schedule RPT nurses to their commitments before using casual nurses. The
    arbitrator also observed that RPT nurses can be considered for additional
    tours after being scheduled to commitment, suggesting that the commitment
    constitutes a baseline measure of regular working hours.

[16]

The
    arbitrator found further support for her conclusion in arbitral jurisprudence
    emphasizing that this particular collective agreement cannot be interpreted so
    as to remove any meaningful distinction between RPT nurses and casual nurses.
    Recognizing an unrestricted right for the Hospital to reduce the working hours
    of RPT nurses would have precisely that effect, in the arbitrators view. The
    arbitrator also held that by reducing RPT nurses working hours to avoid laying
    off junior nurses, the Hospital had infringed Article 10.09(b)(iii)(C) of the
    collective agreement, which prohibited any "reduction in the hours of work
     to prevent or reduce the impact of a layoff''. In her opinion, the
    Hospitals desire for more flexibility  [did] not override the seniority
    rights or nurses as set out in the [c]ollective [a]greement.

[17]

For
    these reasons, the arbitrator answered the Second Question in the affirmative
    and allowed the grievance. She agreed to remain seized to reconvene, if necessary,
    to determine an appropriate remedy.

The Divisional Courts Decision

[18]

The
    Divisional Court acknowledged that the applicable standard of review was
    reasonableness. The Court found the arbitrators decision to be unreasonable,
    for two reasons.

[19]

First,
    the Divisional Court held that the arbitrator's answers to the First and Second
    Questions were "internally inconsistent". In the Courts view, the
    arbitrators answer to the First Question correctly established that RPT nurses
    were not guaranteed work under the collective agreement. Given that conclusion,
    the Court reasoned that an employee cannot be fairly characterized as being
    laid off, when the employer does not provide work." The arbitrator took a
    different view in her answer to the Second Question and, in the Courts view,
    thereby created an absurdity where the Hospital would be saddled with the
    layoff obligations and costs, prescribed in the collective agreement, for
    failing to provide the very work that it is not contractually required to
    provide.

[20]

Second,
    the Divisional Court determined that the arbitrators answer to the Second
    Question was at odds with the deal that the parties made in their collective
    agreement. The Court reasoned that the arbitrators ruling nullified the clear
    intent of Article 2.05 by "elevat[ing] what was clearly intended to be a
    flexible system, by which the [Hospital] would assign work to part-time nurses,
    to an absolute entitlement to work. The Divisional Court dismissed, as
    irrelevant, the fact that RPT nurses had previously been regularly scheduled up
    to the level of their commitment. In the Courts opinion, "[t]he fact that
    work has been provided in the past does not alter the clear wording of Article 2.05,
    or the fundamental nature of the work arrangement .... [t]he fact remains that
    when it comes to part-time nurses, the [Hospital] is entitled to provide work
    to them, or not, as the [Hospital] chooses."

[21]

The
    Court therefore set aside the arbitration award, "insofar as it held that the
    lay-off provisions of the collective agreement were triggered by the actions of
    the [Hospital]", and remitted the matter to the arbitrator.

ISSUES

[22]

The
    ONA raises one issue on appeal: whether the Divisional Court erred by finding
    that the arbitrators award was unreasonable.

ANALYSIS

Standard of Review

[23]

When
    sitting on an appeal from a judicial review, this court must determine whether
    the reviewing court properly identified and applied the appropriate standard of
    review:
Agraira v. Canada (Public Safety and Emergency Preparedness)
,
2013 SCC 36,

[2013] 2 S.C.R. 559, at paras. 45-47.

[24]

The
    parties submit that the arbitrators decision warranted review on a standard of
    reasonableness. We agree. The arbitrator's interpretation of the collective
    agreement falls squarely within her area of expertise and is owed deference:
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 68;
Wilson
    v. Atomic Energy of Canada Ltd
.
, 2016 SCC 29, [2016] 1 S.C.R. 770,
    at para. 15;
Association of Justice Counsel v. Canada
, 2017 SCC 55,
    415 D.L.R. (4th) 191, at para. 47. The Divisional Court had to determine
    whether the arbitrators decision falls within a range of possible, acceptable
    outcomes which are defensible in respect of the facts and law:
Dunsmuir
,
at paras. 47;
Stewart v. Elk Valley Coal Corp
.
, 2017 SCC
    30, [2017] 1 S.C.R. 591, at para. 27.

In conducting this inquiry, the
    Divisional Court had to pay respectful attention to the [arbitrators]
    reasoning process, and consider whether there are any lines of analysis in her
    reasons that could have reasonably led to her conclusion:
Law Society of
    New Brunswick v. Ryan
, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55;
Elk
    Valley Coal Corp
.
, at para. 27.

[25]

As
    the Divisional Court correctly identified the applicable standard of review as
    reasonableness, this appeal turns on whether the Court properly applied that standard.

The Parties Submissions

[26]

The
    ONA submits that the Divisional Court erred in finding the arbitrators answer
    to the Second Question to be unreasonable. The arbitrators answers to the
    First and Second Questions are consistent, as the two questions address
    different scenarios  one, where no work is available, and the other, where
    there is less work to be done. The ONA further contends that the arbitrators
    answer to the Second Question is consistent with the terms of the parties
    collective agreement. The arbitrator, the ONA argues, reasonably concluded that
    the Hospitals refusal to schedule RPT nurses up to their commitments
    constituted a reduction of  hours of work that triggered the agreements
    lay-off provisions. By substituting its own interpretation for that of the
    arbitrator, the Divisional Court, in the ONAs view, ignored three lines of
    analysis reasonably capable of supporting her conclusion:

(a) No
    contractual benchmark was necessary to apply the lay-off provisions, as the
    Second Question referred only to RPT nurses who had been scheduled up to their commitment
    on a previously posted schedule.

(b) A RPT
    nurses commitment, as reflected in the job posting advertising his or her
    position, constitutes an acceptable contractual benchmark. While a RPT nurses
    commitment does not amount to a guarantee of work,
no

nurses 
    full or part-time  are guaranteed work under the collective agreement.
    Accordingly, a guarantee of work cannot be a pre-requisite for applying the
    lay-off provisions.

(c) The
    Hospital breached Article 10.09(b)(iii)(C) by reducing the working hours of all
    RPT nurses without regard to seniority, to avoid laying off the most junior RPT
    nurses.

[27]

In
    response, the Hospital submits that the Divisional Court correctly concluded
    that the arbitrators answers to the First and Second Questions cannot be reconciled.
    Nor, argues the Hospital, can her answer to the Second Question be squared with
    Article D.4(7) of the Local Agreement, which provides that a RPT nurse 
may
be scheduled up to their commitment. The permissive language employed in this
    clause is particularly probative given the mandatory language used in other
    provisions of the collective agreement, where the parties clearly intended to
    remove the Hospitals flexibility with respect to scheduling RPT nurses. These
    considerations, in the Hospitals view, render the arbitrators decision
    unreasonable.

Was the Arbitrators Decision Reasonable?

[28]

In
    our respectful view, neither of the Divisional Courts justifications for
    overturning the arbitrators decision can withstand scrutiny.

1.  The Arbitrators Answers are Internally Consistent

[29]

The
    arbitrator answered the First Question in two parts. She found that the
    Hospital is not obliged to schedule a [RPT] nurse to the level of her
    commitment if the hours of work are not available. She then qualified her finding,
    noting that where the Hospital fails to schedule a [RPT] nurse up to her
    commitment, there may be Collective Agreement provisions that are triggered.
This
    is addressed more fully by the second question
 (emphasis added).


[30]

We
    see no inconsistency between this answer and the arbitrators answer to the
    Second Question. Neither answer imposes on the Hospital an obligation to
    schedule RPT nurses up to their commitments when there is no work available. We
    respectfully disagree with the Divisional Court that the arbitrators refusal
    to recognize such an obligation in her answer to the First Question precluded
    her answer to the Second Question. As the arbitrator noted at para. 39, the
    Second Question addressed a different scenario than the First  one where less
    work was available for RPT nurses, as opposed to no work.

[31]

In
    any event, we do not read the arbitrators answer to the Second Question as
    imposing an obligation on the Hospital to schedule RPT nurses to commitment.
    As we explain below, her answer merely recognizes that if the Hospital
    exercises its discretion to schedule RPT nurses below their commitment, it must
    comply with the collective agreements lay-off provisions  a logical extension
    of the arbitrators answer to the First Question, which recognized that where
    the Hospital fails to schedule a [RPT] nurse up to her commitment, there may
    be [c]ollective [a]greement provisions that are triggered. These answers are
    entirely consistent and do not create the absurdity described by the Divisional
    Court.

2. The Arbitrators Answer to the Second Question is Consistent with the
    Collective Agreement

[32]

In
    our respectful view, the Divisional Court placed undue focus on whether the
    collective agreement guarantees work to RPT nurses. Instead, the Court should
    have considered whether the collective agreement provides a benchmark to
    measure a reduction in a [RPT] nurses hours of work, thereby permitting
    resort to the lay-off provisions.

[33]

The
    Divisional Courts focus on a guarantee of work was misplaced because, as the
    arbitrator recognized, the lay-off provisions can apply to nurses who are not
    guaranteed work under the collective agreement. Both parties agree that no
    nurses  full or part-time  are guaranteed work under the agreement. Article
    13.01, which governs the working hours of full-time nurses, explicitly states
    that their normal full-time hours shall not be construed to be a guarantee
    of  hours of work. And yet, there is no dispute that the lay-off provisions
    will be triggered if a full-time nurse is scheduled below normal full-time
    hours. Evidently, while the agreement does not provide full-time nurses with a
    guarantee of work, neither does it grant the Hospital unfettered discretion to
    schedule those nurses below their normal full-time hours. The Divisional
    Court, with respect, erred by failing to consider whether that logic could
    reasonably be extended to RPT nurses.

[34]

The
    Hospitals submissions on appeal also place undue emphasis on the absence of a
    guarantee of work for RPT nurses. This is most evident in the Hospitals
    primary submission on appeal  that the arbitrator failed to give effect to
    clear, permissive language within the collective agreement indicating that RPT
    nurses may be scheduled up to their commitment. As explained above, however,
    the provisions of the agreement relevant to scheduling full-time nurses are
    also permissive, but nonetheless constrained by the agreements lay-off
    provisions. The relevant question, therefore, is whether the lay-off provisions
    similarly constrain the Hospitals discretion to schedule RPT nurses below
    commitment. For the lay-off provisions to have such an effect, there must be
    some benchmark  within the agreement or otherwise  against which to measure a
    reduction in a [RPT] nurses hours of work. In our view, the arbitrator
    reasonably found that the collective agreement provided such a benchmark. Given
    this conclusion, we need not consider whether a non-contractual benchmark would
    also have been suitable in these circumstances.

3. An Appropriate Benchmark

[35]

The
    arbitrator determined that the hours for which each RPT [nurse] has committed
    to work provides a suitable contractual benchmark for applying the lay-off
    provisions. In our view, this was a reasonable finding.

[36]

First,
    that a RPT nurses commitment is not a guarantee of work does not preclude its
    use as a benchmark for applying the lay-off provisions. As explained above, a
    full-time nurses normal full-time hours provide an appropriate benchmark,
    even though they are not to be construed as a guarantee of work. As the
    Hospital concedes at para. 80 of its factum on appeal, [a] guarantee of work
    is not the issue.

[37]

Second,
    the arbitrators conclusion finds reasonable support in the wording of the
    collective agreement. To justify her answer to the Second Question, the
    arbitrator drew upon Article D.7(2) of Local Agreement as well as the posting
    notices issued by the Hospital, referenced in Article D.4. While these
    provisions do not guarantee work to RPT nurses, they nonetheless support the
    conclusion that a RPT nurses commitment is a meaningful benchmark for the
    purposes of this agreement, appropriate for use in applying the lay-off
    provisions. Article 2.05 of the Central Agreement further bolsters the
    arbitrators reasoning, as it refers to a RPT nurses commitment as the
    regular pre-determined basis on which he or she is assigned work. Equating a
    regular pre-determined basis of work with a benchmark does not, in our
    view, give rise to an unreasonable result.

[38]

Third,
    the arbitrator reasonably determined that under the Hospitals proposed
    interpretation of the agreement, RPT nurses would see their work status
    effectively chang[ed]  to casual. The Hospital objects to this finding,
    noting that RPT nurses, unlike casual nurses, benefit from knowing their work
    schedules in advance. The fact remains, however, that the Hospitals favoured
    interpretation of the lay-off provisions significantly erodes the distinction
    between the two types of nurses, even if it does not eliminate the distinction
    entirely. As the arbitrator noted, if the Hospital can  without restriction 
    reduce or fluctuate the hours of RPT [nurses] there would be nothing
    prohibiting a reduction of scheduled hours to none. This finding and the
    inferences the arbitrator drew from it were reasonable and they provide further
    support for the arbitrators answer to the Second Question.

[39]

Fourth,
    while not determinative, we note that the arbitrators approach finds support
    in other arbitral decisions interpreting analogous lay-off provisions. For
    example, in
St. Vincent de Paul Hospital, Brockville v. C.U.P.E., Local
    2491
, [2006] O.L.A.A. No. 615, a management rights clause granted the
    employer hospital the exclusive right to determine the assignment of working
    hours for its employees. Article 14 of the parties collective agreement
    stated that full and part-time employees were not guaranteed minimum hours of
    work. The hospital reduced the hours of work available for three part-time
    switchboard operators, and spread the reduction in hours among the operators
    without regard for seniority. The union filed a grievance. The arbitration
    board found a lay-off had occurred, reasoning at para. 22, that the absence of
    a guarantee of work was not determinative of whether the Hospital was required
    to follow the layoff procedures set out in the collective agreement. The
    arbitration boards reasoning was subsequently adopted in
C.U.P.E., Local 4000
    v. Ottawa Hospital
(2012), 109 C.L.A.S. 243, at paras. 53-56. These prior
    decisions shape the contours of what qualifies as a reasonable decision in
    this case:
Communications, Energy and Paperworkers Union of Canada, Local
    30 v. Irving Pulp & Paper, Ltd
.,
2013 SCC 34, [2013] 2 S.C.R.
    458, at para. 76.

[40]

Fifth,
    we agree with the appellant that the arbitrators decision reflects appropriate
    concern for the seniority rights of RPT nurses. Various provisions in the
    collective agreement underscore the importance of RPT nurses seniority rights,
    including clauses addressing negotiations, committee membership, professional
    development, probation and termination. Under the Hospitals proposed
    interpretation of the agreement, however, RPT nurses would see the value of
    their seniority significantly diminished. The arbitrator, in our view,
    reasonably chose to avoid this outcome in interpreting the agreements lay-off
    provisions. As noted in the oft-cited decision
U.E., Local 512 v. Tung-Sol
    of Canada Ltd.
, [1964] O.L.A.A. No. 9, at para. 4:

Seniority is one of the most important and far-reaching
    benefits which the trade union movement has been able to secure for its members
    by virtue of the collective bargaining process  It follows, therefore, that
an
    employee's seniority should only be affected by very clear language in the
    collective agreement concerned and that arbitrators should construe the
    collective agreement with the utmost strictness wherever it is contended that
    an employee's seniority has been forfeited, truncated or abridged under the
    relevant sections of the collective agreement
[Emphasis Added].
[1]

[41]

Those
    observations are apposite here. Given the clear importance of RPT nurses
    seniority rights to the collective agreement as a whole, it was eminently
    reasonable for the arbitrator to conclude that those rights are not truncated
    or abridged under the agreements lay-off provisions.

[42]

The
    Hospital takes issue with this reasoning, arguing that its position does not
    erode seniority rights because the Collective Agreement does not require the scheduling
    of [RPT] nurses up to their commitment on the basis of seniority. With
    respect, this submission begs the question. What the collective agreement
    requires in terms of scheduling RPTs up to their commitment was the very
    question the arbitrator had to decide. Presented with multiple possible
    answers, she reasonably chose the one that better reflected the high value the
    collective agreement places on RPT nurses seniority rights. We see no basis to
    interfere with that choice.

[43]

We
    add one point on the issue of seniority, relevant to the parties submissions
    on Article 10.09(b)(iii)(C) of the collective agreement. We agree with the
    Hospital that, by itself, this provision does not establish whether RPT nurses
    were laid off when scheduled below their commitment. However, as we are
    satisfied that the arbitrators answer to the Second Question was reasonably
    based on the wording and purpose of the collective agreement viewed as a whole,
    we see no reason to disturb her finding that the Hospitals actions contravened
    s. 10.09(b)(iii)(C).

[44]

We
    conclude by addressing two further objections by the Hospital to the
    arbitrators reasoning. Neither, in our view, justifies overturning her
    decision.

[45]

First,
    the Hospital submits the job posting notices the arbitrator relied on to find a
    contractual benchmark are ancillary to the collective agreement. We disagree.
    The posting notices are clearly incorporated into the collective agreement by
    Article D-4 of the Local Agreement, which, as explained above, states that
    "the predetermined basis upon which a regular part-time employee's
    commitment to be available shall be made as follows  (1) [a]vailable to work
    the number of shifts and hours (day/night/evening)
as stated in the posting
    notice
" (emphasis added).

[46]

Second,
    the Hospital argues that the arbitrators interpretation fails to give effect
    to Article D.7(1) of the Local Agreement, which specifies that the Hospital
    must schedule RPT nurses up to commitment before utilizing casual nurses. If
    RPT nurses must
always
be scheduled to commitment, the Hospital
    argues, Article D.7(1) need not have been included in the agreement.

[47]

We
    do not agree with this submission. The arbitrators answer to the Second
    Question does not render Article D.7(1) redundant. As explained above, the
    arbitrators answer recognizes that the Hospital retains discretion to schedule
    a RPT nurse below commitment, provided it complies with the lay-off provisions
    in the collective agreement. However, should the Hospital schedule a RPT nurse
    below commitment for the purpose of giving shifts to casual nurses, it will
    presumably be in breach of Article D.7(1) of the collective agreement even if
    it complies with the lay-off provisions.

[48]

Accordingly,
    we do not agree that the arbitrators interpretation fails to give effect to
    Article D.7(1), or any other provision of the collective agreement. Her answer
    to the Second Question falls well within the range of outcomes defensible in
    respect of the facts and the law.

DISPOSITION

[49]

The
    appeal is allowed, the decision of the Divisional Court is set aside and the
    arbitrators decision is restored. The ONA is entitled to its costs of this
    appeal fixed in the amount of $9,000. The ONA is also entitled to $5,000 for
    the costs of the application before the Divisional Court. Both amounts are
    inclusive of disbursements and applicable taxes.

Released: RJS FEB 23
    2018

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.





[1]

See also:
Teamsters
,
Local 938 v. Lakeport
    Beverages
(2005), 77 O.R. (3d) 543 (C.A.), at para. 56.


