TORONTO 005400680065 Canadian Union of Public Employees (CUPE) and the Service Employees International Union (SEIU) filed court documents on Wednesday, July 22, challenging the Ontario government’s process for choosing arbitrators hearing cases involving public sector health care workers who do not have the right to strike.
“The Ontario Government has reneged on its commitment to not tamper with the process for the appointment of arbitrators to interest arbitration boards,” said Michael Hurley, president of the Ontario Council of Hospital Unions (OCHU/CUPE). “The appointment of four retired judges earlier this year, and the recent appointment of four additional judges, indicate clearly that the government wishes to direct the outcome of collective bargaining in the health care sector.”
“Last fall, in discussions around Bill 136, the government made a commitment that it would only appoint from the existing list of accepted and experienced labour arbitrators,” said Ken Brown, Canadian Vice-President of the Service Employees International Union (SEIU). “It is now clear that the Ontario government had no intention of honouring this commitment. The minister is more interested in finding arbitrators who will do the government’s bidding than in the fair treatment of health care workers.”
The appointment of “arbitrators” under the Hospital Labour Disputes Arbitration Act has been transferred to the Minister’s Office. Appointments had previously been handled by the Office of Arbitration, to ensure there would be no political influence in the appointment process.
“This is not the first time the Conservative Government has tried to politicize an appointment process”, said Joanne Greaves, Chair of CUPE’s health care workers’ committee. “The Tories have taken criticism for politicizing the appointment process of OLRB members and WCB members, and this is no different.”
The two unions have retained the services of labour lawyer Howard Goldblatt, of Sack, Goldblatt & Mitchell, to lead the court challenge. “The court challenge will seek to prove i006estitutional bias’ on the part of the Ontario Government in their handling of these matters,” said Mr. Goldblatt, who outlined the unions’ arguments at a press conference in the Queen’s Park media studio July 23.
CUPE and SEIU represent over 80,000 health care workers in the province of Ontario.
Ontario government tables Bill 136 which would create a permanent panel of “Disputes Resolution Commissioners” to determine what is in collective agreements inspectors denied the right to strike. These “Commissioners” would be hand-picked by the Ontario government and would not go through the recognized procedures which ensure neutrality for labour arbitrators.
Labour unions mobilize their membership against Bill 136.
Ontario government and Ontario labour unions meet to discuss alternatives to Bill 136. Top Ministry of Labour officials, including members from the Minister’s Office, are present at these discussions.
The Minister of Labour, Elizabeth Witmer, announces widespread changes to Bill 136. Included in these changes is the removal of the Disputes Resolution Commission.
In meetings with the Minister’s staff, Unions raise the concern that the government might attempt to tamper with the arbitration appointments process. The Ministry assures the labour unions that the existing process for the appointment of arbitrators would continue, and that there would be full consultation before adding to the list. The Ministry further assures the labour unions that no-one would be appointed who was not on the list of approved arbitrators, unless they were widely regarded as acceptable.
February 2, 1998
The new Minister of Labour writes to Kenneth Swan, president of the Ontario Labour Management Arbitrators Association. Mr. Flaherty agrees that “for a compulsory arbitration system to function as an adequate substitute for the right to strike, the parties must perceive the system as neutral and credible”.
Feb. 20, 1998
The Minister of Labour reneges on his government’s commitment to Labour and appoints four retired court judges to mediate and arbitrate a number of outstanding health care collective agreements. The four judges are Hon. Robert Reid, Hon. William Houlden, Hon. McLeod A. Craig, and the Hon. Charles Dubbin.
Ontario Federation of Labour president Wayne Samuelson writes to the four judges and requests that they refuse to take these appointments.
Justice Charles Dubin replies that a conflict prevents him from continuing in the appointment and steps down noting that “if I had continued to serve, I would first, as has always been my practice, have satisfied myself that my appointment was satisfactory to all parties”.
CUPE writes to Justice Reid and SEIU writes to Justice Craig, asking that they step down as arbitrators on appointed cases. Justice Craig does.
CUPE raises a preliminary objection in the case of RE: The City of Timmins (Golden Manor Home for the Aged) and CUPE Local 1140 in front of Justice Reid. Prior to CUPE completing their case, Justice Reid steps down from the hearing.
CUPE discovers that the appointment of “arbitrators” under the Hospital Labour Disputes Arbitration Act had been transferred to the Minister’s Office. Previously, arbitral appointments had been handled by the Office of Arbitration (bureaucrats) to ensure that there would be no political influence. Now the appointments are being made by the political office of the Ministry of Labour.
Given that three of the four judges appointed stepped down from their cases, the Ministry of Labour appoints four new judges to sit as arbitrators on interest arbitrations under HLDAA. Unlike the previous appointments, the government does not publicise these appointments. CUPE’s request for biographies of the four new judges is denied.
In light of the provincial government’s refusal to appoint an arbitrator from the roster of acceptable arbitrators, and in light of the political tampering with the supposedly neutral panel, CUPE and SEIU decide to jointly challenge the Ontario government’s actions and will plead i006estitutional bias’ in their charges against the Ontario government’s handling of these matters.
SEIU raises an objection to the appointment of Justice Thompson in the case of RE: Alexandra Marine Hospital, Goderich and SEIU, Local 210. Justice Thompson steps down.
Subsequent to Justice Craig’s decision to step down in the SEIU Trenton Memorial Hospital in March, the Minister’s Office appoints Justice Flanigan as a replacement. Justice Flanigan is also appointed to a case between SEIU and 45 joint bargaining hospitals. SEIU objects to the appointment and discovers in the process from Justice Flanigan that the Minister’s Office is active in soliciting retired judges to serve in this capacity and advising that Labour will object to such appointments.
SEIU indicates to Justice Flanigan that should he continue in the appointment notwithstanding the objection, SEIU will proceed to Divisional Court, and Court of Appeal for review of the Ministry of Labour’s appointment process.