Notwithstanding the benefits and practicality of using video conference technology to hold hearings it is not appropriate in this case - Southampton Nursing Home v Service Employees International Uni

May 01, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA)

Date of Decision: April 14, 2020
Heard Before: Arbitrator Gordon F. Luborsky

INTERIM DECISION RE: ADJOURNMENT

After three days of inital hearings the parties scheduled two additional days to be held on April 21 and 22, 2020 in Owen Sound, Ontario, which occurs in the midst of the ongoing COVID-19 health crisis and mandatory prohibitions on gatherings making it impossible to proceed with the hearings in person.

As an alternative, the parties have considered continuing remotely, utilizing some form of electronic attendance such as “Zoom”, “Skype”, “Facebook” or other videoconferencing platforms.

The Union wishes to proceed with the hearings on their scheduled dates through one of those alternate means, but the Employer disagrees.  The Employer has consequently requested an adjournment of the arbitration to a date much later in the year when circumstances will optimistically permit the parties to hold their hearings in person. 

Background Information

The Employer operates an 88-bed nursing home located in Southampton, Ontario, which is a rural community on the shores of Lake Huron, Bruce County.  In 2005 the Ontario Ministry responsible for Long Term Care announced that all LTC facilities were to compile and update detailed records related to the evolving care and circumstances of each resident on a quarterly basis, utilizing a computerized tool referred to as a “Resident Assessment Instrument” (“RAI”) for planning and funding purposes.  The RAI Coordinator position was implemented at the Employer’s Southampton LTC in or about 2008, and assigned to non-unionized members of the Employer’s managerial or administrative staff.  The Union has objected to that placement, asserting the position is properly recognized as work of its bargaining unit members under the relevant collective agreement(s) between the parties.

After five years (but apparently subject to an ongoing complaint by SEIU Locals at this and other LTC facilities throughout the province wherever such work was not given to its members), the Union filed a policy grievance dated February 11, 2013. The remedy requested is that: “The Employer recognize the RAI Coordinator as part of the bargaining unit and negotiate an appropriate rate of pay for this position and any other adjustment that is deemed fair and equitable.” 

The Union delayed pursuing its grievance at Southampton while the issue was litigated at other LTC facilities in the province (and determined in a manner said to confirm the SEIU’s claim that the RAI Coordinator’s duties fell within its traditional bargaining unit).   

On April 18, 2017 the Union’s policy grievance moved to this arbitration and the first day of the arbitration occurred on November 8, 2017, with subsequent hearings on consent held July 11 and 12, 2018. 

 At the conclusion of the third hearing day the Employer advised it intended to call one more witness, and the Union indicated it would produce two witnesses unfortunately the Arbitrator had to cancel those hearing dates due to personal illness and the hearing was rescheduled to April 21 and 22, 2020.

On March 17, 2020, the province of Ontario declared an emergency due to the outbreak of COVID-19 . Among other things regulations now suspend, “for the duration of this Order, any grievance process with respect to any matter referred to in this Order”, although it is silent on the subject of grievances and arbitration proceedings between parties to a collective agreement that were ongoing before the emergency declaration under the EMCP.

The Arbitrator took into administrative notice media reports indicating that COVID-19 is particularly dangerous to the elderly population living in LTC facilities where a high percentage of fatalities have occurred (estimated to be as much as half of the total deaths), and based on the prevailing forecasts the potential death rate from the disease is expected to peak in or about the upcoming two to three weeks, in the midst of the scheduled continuation dates.

In the circumstances, the Arbitrator wrote to the parties’ on April 1, 2020 asking if, or how they wished to proceed with the arbitration of the Union’s grievance and to consider whether there was another way of using part or all of the time scheduled for the matter through some form of remote attendance (such as a telephone conference on agreed facts, a videoconference via computer through Zoom or other platforms and/or via Skype technology). 

The Union is in favour of proceeding remotely through the use of Zoom or comparable methods, including for the hearing of testimony and argument, with a view to completing the case on the two days previously scheduled.  The Employer is opposed to that idea, instead requesting that the hearings be adjourned to other dates later in the year when it is hoped the current health crisis will have passed to enable the parties to reconvene in person.

The Employer urges adjournment of the proceedings as the Administrator cannot imagine that she can be away for two days in a row to attend a video conference [as the] situation of the Virus in Long Term Care Homes can change daily.” And that the Administrator’s attendance at the arbitration hearing “is necessary if [counsel is] to be able to effectively cross-examine the two bargaining unit witnesses [the Union] advised some time ago that [it] plans to call.”  Given the expectation that the Union will “give evidence to tell a different story” than the Administrator’s and Ms. Campbell’s testimony, the Employer submits its cross-examination of the Union’s witnesses would be “handicapped” without the Administrator’s advice, who is urgently required to attend to the business of the nursing home at this critical time.

The Employer also claims “there may well be a credibility issue in regard to evidence if it contradicts the evidence [that the Union] plans to lead”. 

While the Union stated it was “sympathetic to the concerns outlined in the Employer’s letter and does not wish to diminish their importance, or the impact that the COVID-19 pandemic is having on the population generally”, the argue that “arbitrations are important matters” and that the logistics of holding an arbitration through an appropriate remote technology in the present circumstances “are not so unreasonable to lead the arbitrator to adjourn the hearing”.

Almost two and one-half years have passed since the first hearing day in this case held on November 8, 2017, which the Union submitted was already an inordinate amount of time to resolve an ongoing and contentious dispute. 

Those circumstances include the unfortunate reality that the COVID-19 pandemic is expected to persist for a considerable period of time (that some media reports suggest could be in the order of 18 to 24 months) while the Employer is continuing to operate a unionized facility where the Union submits the employees retain “their statutory and Charter-protected rights, as does the Union” to effectively pursue and safeguard their collective interests, that are not suspended by the current health crisis.

The Union therefore requests that the hearings proceed on April 21 and 22, 2020 as previously scheduled utilizing the Zoom videoconferencing platform or an appropriate alternative technology such as Skype or FaceTime.  Its written submissions conclude with the statement:  “We simply disagree with the Employer that participation in the hearing in this manner over those two (2) days constitutes an overly unreasonable amount of time to devote to this matter given the current situation.”

Analysis and Discussion

In Sunnybrook Health Sciences Centre, supra, which on its merits concerned a challenge to the employer’s refusal to allow a grievor to work her scheduled shifts during an influenza outbreak because she was not vaccinated against the disease, Arbitrator Surdykowski considered a request by the union to hear the testimony of a medical specialist by telephone or videoconference, in the face of the employer’s objection to proceeding in that manner.  One of the reasons for the employer’s objection was its challenge to the specialist’s credibility, said to make it unfair to permit her to testify by some electronic means.

The information before the arbitrator also indicated that the specialist’s testimony was crucial or “key” to the case, but given her busy medical practice she could not attend during the day.  However, the specialist was available to give testimony in person after 4:30 p.m. at a location closer to her office that was acceptable to both the union and the employer. 

In concluding that an arbitrator appointed to hear a grievance under sec. 48 of the LRA had the authority to order the hearing to proceed through some form of tele or videoconferencing, the arbitrator stated at paras. 13 – 14:

Although there is nothing in the Labour Relations Act, 1995 which specifically authorizes a s. 48 grievance arbitrator to receive evidence by tele or videoconference, neither is there anything in the legislation which prohibits a grievance arbitrator from doing so.  The Act gives s. 48 arbitrators very broad powers which in some ways are even broader than a court in civil cases. There is no expectation that the grievance arbitration process will remain rooted in the past and restricted from using available technology to advance the hearing process, so long as hearing integrity and fairness are maintained.

I am satisfied that as a s. 48 grievance arbitrator I can hear witness testimony by tele or videoconference if I consider it appropriate in the circumstances to do so.

Thus in balancing the interests of the parties and adopting the premise that one should not depart from the norm of an examination of the witness in-person except in compelling circumstances justifying the use of some remote technology, the arbitrator denied the union’s request to hear the specialist’s testimony by videoconference, instead ordering that the witness personally attend for questioning after 5:30 p.m. at a location closer to her office to accommodate her scheduling constraints.   

There is a new reality now.  Even agreeing with the foregoing analysis and result for arbitrations held in the usual course, Sunnybrook Health Sciences Centre, supra, occurred in very different factual circumstances than those suddenly confronting the parties before me, where it is simply not possible to conduct the hearing in-person, which is otherwise the norm in such cases.  Rather, in order to address a legitimate Union grievance at this particular moment and at least the foreseeable future, there must be some form of remote arbitral attendance in a manner that will maintain the hearing’s essential integrity and fairness if the resolution of workplace disputes is to continue at all while the current health crisis is ongoing.  The alternative is to defer the hearing of labour relations disputes entirely during what may be a lengthy period of time, which in my opinion is an untenable prospect.

In a ruling dated March 24, 2020 by the Ontario Labour Relations Board in Point Farms Provincial Park, MNR (OLRB Case No: 2213-19-HS), concerning the underlying appeal of an Occupational Health and Safety Inspector’s Order, Vice-Chair Patrick Kelly directed the parties to hold a hearing on the merits already scheduled for April 20, 2020 by Skype videoconference.  In denying the employer’s objection to proceeding in that manner, the Board stated at para. 4 that compared with its early experiences when Skype was in its infancy: “Times have changed.  The Board has gained more experience with Skype hearings, and has conducted full-scale hearings by video conference, including the calling of evidence.”  The Board also rejected the employer’s claim that it would be prejudiced if the Board heard testimony via Skype, where the employer had provided “no information in support of that claim.”            

In another recent ruling dated March 31, 2020, Arbitrator McLean of the Ontario Grievance Settlement Board ordered the parties in AMAPCEO and PCEO (Grievor) and Ontario (Ministry of the Attorney General), GSB #2018-1346, to continue with their hearing scheduled for mid-April 2020 via Zoom technology to receive testimony from an expert witness, over the objections of the employer.  Noting at para. 8 that, “[t]here was significant contradiction in the cases about an adjudicator’s ability to assess credibility over video” and that, “[i]t may well be that this controversy stems in part from the adjudicator’s individual comfort level in doing so”, the arbitrator gave the following brief reasons for the decision to proceed with the hearing by videoconference.

Given the review of general principles and the Arbitrator’s assessment of the recent cases decided under conditions where in-person hearings are not possible due to the pandemic, leads me to the following conclusions: 

(a) In the face of the present health crisis the “new norm” is that the hearing will presumptively proceed as scheduled utilizing a form of remote attendance through videoconferencing or other technologies agreed upon or determined appropriate;
(b) which is subject to rebuttal or limitation by an objecting party that must show compelling reasons justifying a contrary result;
(c) to be assessed by the arbitrator, if necessary, balancing the interests of the parties, including the need to maintain the essential integrity and fairness of the hearing process;
(d) having regard to the particular facts and circumstances of each case.

Despite the potential drawbacks of videoconferencing, a concern over credibility is not sufficient reason, in itself, to overcome the presumption of proceeding remotely with the hearing through an appropriate technology. 

In this case applying the foregoing principles to the facts of the present case by exploring the rebuttable presumption that the hearings scheduled for April 21 and 22, 2020 must proceed utilizing an appropriate videoconferencing or similar platform.

Notwithstanding the general agreement with the reservations expressed by Arbitrator Surdykowsi in Sunnybrook Health Sciences Centre, supra the Arbitrator cannot find on the information and submissions that credibility is a legitimate concern, and even if it is, that such concern renders the use of videoconferencing to receive the evidence incompatible with a fair adjudication in the circumstances of the present case.

On this basis the Arbitrator concluded that the Employer’s objection to continuing with the hearing by way of a videoconference utilizing Zoom or some similar technology based on credibility concerns alone must be dismissed.

[However, apart from that narrow determination, there are other circumstances independently justifying the adjournment of the instant arbitration proceedings which exist outside of any consideration of the use of videoconferencing technology to fairly receive the parties’ evidence.

In properly balancing the interests of the parties having regard to the particular facts and timing of the relevant circumstances, the reality that the Employer is a Long Term Care facility facing what is an overstatement to describe as an existential threat caused by the sudden outbreak of a pandemic virus that is particularly lethal to the population of vulnerable seniors who are entirely dependent upon the nursing home staff for their very survival, which must command the staff’s full attention at the same time that the arbitration proceedings are scheduled  to reconvene.

On the evidence already presented during three days of hearings, the Arbitrator accepts the Employer’s submission for immediate purposes that the Southampton Nursing Home, being located in a relatively small rural community, has limited human resources.  This was exhibited by the way the Employer combined various tasks related to the RAI Coordinator function with the responsibilities of its managerial and/or administrative personnel, that from the Employer’s perspective is required to maximize operational efficiencies.

Consequently the Arbtirator concludes for the foregoing reasons that the Employer has met its onus to show compelling reasons justifying the adjournment of the arbitration hearings scheduled for April 21 and 22, 2020, thereby rebutting the presumption in the shadow of the prevailing COVID-19 pandemic of otherwise proceeding remotely on those days.

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