Service Employees International Union, Local 1 Canada v Chartwell Retirement Residence

ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 1237-21-U

Service Employees International Union, Local 1 Canada, Applicant v

Chartwell Retirement Residence (Various Locations), Responding

Parties

BEFORE: Derek L. Rogers, Vice-Chair

APPEARANCES: Robert Whillans, Ricardo McKenzie, Vicki Brebner and

Sonia Yung for the applicant; Donna Walrond, Terry McCarthy, Scott

Ridgeway, Maureen Shipperly, Bella Aggarwal, and Luciana Vieira for

the responding party

DECISION OF THE BOARD: April 13, 2022

1.

Service Employees International Union, Local 1 Canada (the

“applicant” or “Union”) brought this application under section 96 of the

Labour Relations Act, 1995, S.O. 1995, c.1, as amended, (the “Act”)

alleging violations of sections 70 and 76 of the Act.

2.

At its essence, the application asserts that the responding

parties (sometimes “Chartwell”) have violated the Act and a number of

collective agreements by denying the applicant’s Representatives access

to their long-term care and retirement home properties — twenty-three

in number prior to a disposition of one of the properties — for the

purposes of meeting with bargaining unit members and conducting

labour management meetings as contemplated by the collective

agreements.

3.

The cited sections of the Act provide as follows:

Employers, etc., not to interfere with unions

70 No employer or employers’ organization and no person

acting on behalf of an employer or an employers’

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organization shall participate in or interfere with the

formation, selection or administration of a trade union or the

representation of employees by a trade union or contribute

financial or other support to a trade union, but nothing in

this section shall be deemed to deprive an employer of the

employer’s freedom to express views so long as the

employer does not use coercion, intimidation, threats,

promises or undue influence.

Intimidation and coercion

76 No person, trade union or employers’ organization shall

seek by intimidation or coercion to compel any person to

become or refrain from becoming or to continue to be or to

cease to be a member of a trade union or of an employers’

organization or to refrain from exercising any other rights

under this Act or from performing any obligations under this

Act.

The Hearing Process

4. Having regard for the facts that the application touched more

than twenty facilities and involved several Union Representatives, the

parties agreed to delivering witnesses’ evidence in chief by will say

statements, supplemented in some instances with the documentation to

which the witness referred, and cross-examination thereon. In the

result, the responding parties called four witnesses and the Union

introduced the evidence of two of its Representatives, Ms. Vicki Brebner

and Ms. Sonia Yung, as well as that of a steward at the Gibson

Retirement Home, Mr. Ravindra Mehendiran.

5.

Late in the proceedings and after most of the viva voce

testimony, the parties also submitted a Partial Agreed Statement of

Facts with the following contents (excluding the appended documents):

1. Chartwell is the largest owner/operator of long-term

care and retirement residences in Canada. Chartwell

currently owns or manages approximately over 200

residences in Ontario, Alberta, British Columbia and Quebec.

52% of Chartwell properties are in Ontario. 77% of Chartwell

owned or managed facilities in Ontario are retirement homes

and 23% are long term care homes.

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2. Service Employees International Union, Local 1 (“SEIU”

or the “Union”) is the certified bargaining agent for certain

non-registered positions in 23 homes which are identified as

Respondents in this application. However, Barclay House,

identified in the Application, was sold on or about December

1, 2021 and is no longer owned by Chartwell.

Nearly all of the collective agreements between the parties

contain a provision concerning the Union holding meetings

on the premises of Chartwell properties.

3. The members of the SEIU bargaining units hold job

classifications that perform direct care to residents, such as

Registered Practical Nurses, Personal Support Workers and

Dietary Aides as well as job classifications for service

positions such as Housekeeping, Laundry Aides and Cooks.

The size of the bargaining unit at each Home identified in the

Application ranges in size from 20 to 275 members

depending on the size of the Home. Bargaining units are

comprised of full time and part-time and casual employees.

Shifts vary depending on the level of care at the respective

homes and nature of the role. RPNs and PSWs are scheduled

24/7 in [long-term care] homes while retirement homes

typically have a Guest Attendant 24/7. Positions such as

Cooks, Dietary Aides, Housekeeping and Laundry staff are

typically scheduled day and afternoon shifts.

4. On March 13, 2020, Ontario’s then Chief Medical Officer

of Health, Dr. David Williams issued a memo to all long-term

care homes regarding visitors to the homes. This memo is

1

attached at Tab 1.

5. On or about March 15, 2020, Chartwell established a

corporate practice restricting access to Chartwell’s head

office and individual residences across Ontario. Staff were

restricted from accessing Chartwell head office with limited

exceptions and required to work from home where possible.

¹The memorandum issued by the Ministry of Health on March 13, 2020 included the following statements:

“In order to ensure a safe and secure environment for residents, we strongly recommend that these settings

only allow essential visitors until further notice”. The memorandum continued: “The ministry is identifying

essential visitors as those who have a resident who is dying or very ill or a parent/ guardian of an ill child or

youth in a live-in treatment setting. . . No other visitors should be permitted to enter these premises,

instead they should be asked to keep in touch with loved ones by phone or other technologies, as available.”

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6. Chartwell corporate staff communicated this practice to

Union representatives both verbally and in writing. Since the

onset of the COVID-19 Pandemic, from March, 2020

onwards, Chartwell labour relations staff and management

staff at individual homes have conducted meetings and

negotiations

with

SEIU

representatives

using

videoconferencing software. Grievance meetings and labour

management meetings continued at all homes identified in

the Application. Additionally, Chartwell and SEIU negotiated

the renewal of twenty-one (21) retirement home collective

agreements in 2020 using videoconferencing software. In

the fall of 2021, the parties conducted some negotiations in

person off-site at a hotel.

7. On March 17, 2020, in response to the COVID-19 virus,

the province of Ontario made an order declaring an

emergency under the provincial Emergency Management

and Civil Protection Act. On March 30, 2020, Dr. Williams

issued a directive (Directive #3) that limited visitors to only

essential visitors (as defined by the Directive). Since that

time, Dr. Williams or his predecessor [sic] Dr. Kieran Moore,

have issued revised versions of Directive #3. A copy of the

first published version of Directive #3 can be found at Tab

2.

8. On June 10, 2020, Directive #3 was updated to facilitate

the gradual re-introduction of family visits to residents in

long-term care homes not experiencing outbreak of COVID-

19. Effective June 18, 2020, family and friends of residents

were permitted to have outdoor visits of one person per

resident each week. A copy of the revised Directive #3 is

found at TAB 3.²

²This iteration of Directive #3 obliged long-term care homes to have a visitor policy with minimum

standards, one of which required the home’s policy to specify that essential visitors:

a. Be defined as including a person performing essential support services (e.g.,

food delivery, inspector, maintenance, or health care services (e.g.,

phlebotomy)) or a person visiting a very ill or palliative resident.

b. Providing direct care to a resident must use a surgical procedure/mask surgical

procedure mask [sic] while in the home, including while visiting the resident

that does not have COVID-19 in their room.

c. Who are in contact with the resident who is suspect or confirmed with COVID-

19, must wear appropriate PPE in accordance with Directive #5 and Directive

#1.

d. Are the only type of visitors allowed when:

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9. As the second wave of the COVID-19 pandemic hit

Ontario, the Ontario government placed further restrictions

on visitors at some long-term care homes. As of October 5,

2020, visitors in long term care homes in regions with high

case numbers were restricted to staff, essential visitors and

caregivers. Each resident was permitted to designate two

people as caregivers that could enter the home. Chartwell

maintained its corporate practice during the second wave of

the pandemic and union representatives were not permitted

on site. Throughout the second wave of the pandemic,

Chartwell’s labour relations and human resources staff and

management staff at individual homes met with Union

representatives virtually to conduct grievance and labour

management meetings.

10. On June 29, 2021, the province issued a memo to Long

Term Care Home Licensees advising of easing of restrictions

on limits to visitors for long term care residents and further

advised that when the province enters Step 3 of the

Reopening Plan, homes could return to setting their own

maximum for visitors; and activities such as singing, and

dancing were permitted.

11. On July 14, 2021, the government of Ontario issued a

revised Directive #3 for Long Term Care Homes under the

Long Term Care Homes Act, 2007.³A copy of Directive #3 is

found at Tab 4. Guidance Documents for the Long-Term Care

and Retirement Home sector were also released which are

found at Tab 5a and 5b. The Long Term Care Home

Guidance document permitted “general visitors” to enter

homes. The Retirement Home Guidance Document defined

General Visitors as a “person who is not an Essential Visitor

and visits to provide non-essential services (may or may not

i.

ii.

A resident is self-isolating or symptomatic, or

A home is in an outbreak.

3

This iteration of Directive #3 included a requirement that “Homes must ensure that all individuals are

actively screened for symptoms and exposure history before they are allowed to enter the home, including

for outdoor visits.” It provided for “universal masking” applicable to staff, essential visitors, and also to

“general visitors . . . during their visit”. Homes were to “maintain visitor logs of all visits to the home” and

the log was required to include “at a minimum the name and contact information of the visitor, time and

date of the visit, and the purpose of the visit (e.g., name of resident visited).” Routine asymptomatic testing

for staff and visitors was also addressed in the Directive.

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be hired by the home or the resident and/or their substitute

decision-maker.”

12. Following the implementation of Directive #3, the

Empress Kanata, Park Place, the Gibson Retirement Home

and Georgian Traditions scheduled entertainers to perform

for residents inside the residence.

13. Following the implementation of Directive #3, Chartwell

maintained its corporate practice prohibiting union

representatives from attending on the premises unless there

was a sufficient reason to justify a meeting occurring on site.

Chartwell’s labour relation staff and management staff of

individual homes

continued to meet with SEIU

representatives virtually to conduct labour management and

grievance meetings.

14. In 2021, the parties continued collective bargaining

negotiations (which initially began virtually) at the Sheraton

Hotel in-person for the first renewal agreement between

these parties at Georgian Traditions. The parties also

continued negotiations for The Sumach and Willowdale.

Following the day of negotiations at the Sheraton, the parties

continued negotiations for all three homes virtually. Towards

the end of bargaining, Union representatives requested to

hold an in-person ratification meeting at Georgian

Traditions. Prior to the Application being filed, approval was

granted for the Union to conduct the ratification meeting on

site.

15. In the last week of December, 2021, the government of

Ontario announced that homes will pause all general visits

in long term care homes. Chartwell has maintained its

corporate practice and not permitted general visitors,

including union representatives and Chartwell staff who are

not employees of a home to attend on-site.

Collective Agreement Language

6.

The applicant referred in its pleading to collective agreement

provisions addressing site access at some of the facilities at issue. For

twelve of the sites (including Gibson Retirement Home and two others

serviced by the Union’s principal witness, Ms. Brebner), the cited

language was stated to be as follows:

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The Union and the Employees will not hold meetings at any

time on the premises without the permission of the General

Manager or her designate. Such permission shall not be

unreasonably withheld. Meetings, if granted, shall not

interfere with the effective and efficient operations of the

Residence and shall not interrupt or diminish the homelike

atmosphere of the Residence. Only those Employees not on

duty shall attend the meeting and the Union will notify the

General Manager of any visitors attending the meeting.

Similar language — omitting the sentence stipulating that permission

shall not be unreasonably withheld — applied at another location

identified as Scarlett Heights. Ms. Yung was the Union’s Representative

at Scarlett Heights, as well as at Gibson Retirement and Gibson Long-

Term Care Homes — all of which were the subject of testimony.

7.

The language for Gibson Long-Term Care Home and two other

facilities was as follows:

With prior agreement of the Administrator or designate, the

Union Representative who has been assigned in writing by

SEIU Local 1 Canada to the bargaining unit shall have access

to their members for servicing duties. Such agreement shall

not be unreasonably withheld.

Notwithstanding the above, it is understood and agreed that

the activities of the Union Representative shall not disrupt

the normal operation of the Home. The Employer may

designate an area in the building where such access will take

place.

8.

Similar language is in place at Georgian Traditions. The

language there read as follows:

The parties agree that the Union Representative shall have

access to their members for servicing duties. It is understood

and agreed that the activities of the Union Representative

shall not interfere with the normal operations of the home.

The Employer will provide suitable meeting space for the

union to hold general membership meetings upon

notification to the employer in advance.

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9.

Language reproduced by the Union for one of the facilities dealt

with the Union Representative’s opportunity to interview new employees

and the language for another home addressed the bases upon which

“the Employer or the Union Representative” might arrange a meeting

“for the discussion of matters of mutual interest (other than

grievances)”. Finally, the Union asserted that while there were no

collective agreements currently in force for two of the locations “there

is nonetheless an established practice of permitting SEIU

Representatives to attend the locations to conduct union business.”

Chartwell’s Explanation for and Application of its Policy

10.

As the Union’s case in chief relied upon evidence that was

generic in nature, an appreciation of the context in which the application

was brought in October 2021 is more easily gained first from a review

of the responding parties’ evidence.

11.

None of the documents produced by the responding parties

purported to set out its policy in relation to the matters under review in

this proceeding. Chartwell explained and illustrated its issues through

the evidence of its four witnesses who were called after Ms. Brebner

testified.

Terry McCarthy

12.

Mr. Terry McCarthy, Chartwell’s Vice-President of Labour

Relations and a member of its Critical Incident Committee (“CIC”), was

employed by Service Employees International Union, Local 1 Canada for

approximately fifteen years before joining Chartwell. He was the Union’s

Chief Negotiator.

13.

Mr. McCarthy testified: “The decision to pause access to all

visitors to Chartwell’s homes, including family members, corporate staff

and union representatives, coincided with the provincial government's

emergency orders.” Again, those were initiated in March 2020.

14.

He noted that the July 14, 2021 iteration of Directive #3

permitted general visitors to enter homes and explained in his will say:

18. When government directives were amended, the CIC’s

ultimate priority regarding the access to the Homes was the

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resident’s physical and mental health as well as the safety

of its staff. To mitigate the risk of a home entering into

outbreak, visits were limited to those individuals that would

enhance the quality of life for our residents. This included

allowing visits from friends, familyand entertainers. It is

worth noting, contrary to the union’s assertions in its

application, these decisions are entirely consistent with the

intent and purpose of ‘Retirement Homes Policy to

Implement Directive #3’ (hereafter RHPID). In fact, the

aforementioned individuals are contemplated under the

definition of a ‘General Visitor’ under the RHPID.

19. In addition to restricting access of visitors that do not

full [sic] under the above criteria, including union

representatives, Chartwell staff are not permitted on

property at any homes except in limited and prescribed

circumstances. Shoulda special situation arise that required

an individual from corporate to attend a home, permission

would need to be granted by the VP of operations of the

specific platform. This same approach was required when

assessing a requestfrom a union to access a home.

15.

Mr. McCarthy also testified to the continuation of labour

relations activities involving Chartwell properties:

20. The CIC periodically discussed amending its position with

respect to access to Chartwell’s homes. However, shortly

after the CIC would engage in this dialog, the Province

would be impacted by a new ‘wave’ of COVID. For

instance, the CIC began discussing its approach in late

October/early November 2021. However, shortly thereafter

“Omicron’ devastated the Province, resulting in further

lockdowns and record hospitalizations.

21. From the onset of the pandemic, Chartwell’s labour

relations and human resource teams continued to engage in

labour relations activities with all its unions across Ontario,

British Coloumbic, [sic] Alberta and Quebec utilizing a variety

of video conferencing software. Chartwell relied upon this

software to maintainits participation in pertinent activities

such as collective bargaining, labour management meetings,

mediations and grievance and interest arbitration hearings.

This was done to mitigate risk to our staff and residents while

ensuring the day-to-day labour relations obligations

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continued.

22. Chartwell continues to use virtual platforms on a routine

basis for meetings to engage with all of the unions who

represent Chartwell employees.

23. The majority of Chartwell’s unionized homes have

provisions in their collective agreements that require the

respective unions to request permission to accessthe homes

or hold meetings on the Employer’s property. The

overwhelming majority of unions across the country have

not sought access into Chartwell’s properties since the onset

of the pandemic in March 2020. Only SEIU Local 1 has filed

a complaint at a Provincial Labour Relations Board due to the

restricted access. In fact, many unions across the country

advocated against the lifting of the single site orders due to

the health and safety concerns relatedto individuals entering

multiple health service providers.

24. In September 2020, SEIU and Chartwell engaged in

negotiations for the renewal of twenty-one (21) retirement

home collective agreements using video conferencing

software. The parties were successful in negotiating a four

(4) year settlement for the renewal of all participants

engaged in this process. Following the conclusion of

negotiations, SEIU proceeded to ratify each settlement.

None of the ratification meetings were held within the

respective retirement homes.

25. Chartwell again engaged in collective bargaining with

SEIU, Local 1 in September and October of 2021 to negotiate

two first agreements (Chartwell Willowdale & The Sumach)

and one first renewal (Georgian Traditions). The parties

initially met at the Sheraton Parkway Toronto North Hotel &

Suites located in Richmond Hill. During these negotiations,

SEIU requested access to Georgian Traditions in order to

hold a ratification meeting in-person. The union articulated

to myself and Scott Ridgeway, Director of Labour Relations,

that a ratification meeting onsite would be more effective

due to the significant number of changes to the collective

agreement. Understanding the circumstances related to the

request and on the provision that the meeting could be held

in a manner which was consistent with Chartwell’s IPAC

protocols, I sought approval from the VP of Operations, Dan

McIIhone. Approval was granted as the home could

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accommodate the meeting on the date requested.

26. Following this initial meeting at the Sheraton, the parties

continued negotiations virtually. By late October, SEIU and

Chartwell had freely negotiated settlements for all three

homes. Ratification meetings for all three homes were held

on site.

27. The CIC will continue to assess access to homes as the

pandemic progress is. Individual requests for access will

continue to be considered on a case by case basis just as

was done when the Union sought access to Georgian

Traditions for the in-person ratification vote.

16.

On cross-examination, Mr. McCarthy was unable to provide

details of matters such as checklists or visitor policies the responding

parties might have developed in compliance with provincial directives.

Moreover, with the exception of his evidence regarding Georgian

Traditions, he was unable to identify circumstances in which the CIC had

considered the issue before the Board, the provision of property access

to the Union. By way of example, he was unaware whether the matter

of Ms. Yung’s request for access — about which she and others testified

— had reached the CIC. Rather, it was Mr. McCarthy’s evidence that the

ruling regarding the exclusion of Chartwell staff, union representatives,

and others who did not work at the homes had “universal application”.

17.

Nevertheless, there had been discussion at some point as a

preliminary to the Union’s being allowed to hold an in-person ratification

vote at Georgian Traditions. Mr. McCarthy said that he was directly

involved in that bargaining and that the matter had been taken to the

CIC. The Critical Incident Committee, having considered whether the in-

person ratification vote could be done safely and whether all safety

protocols could be adhered to by participants, authorized the Union’s

access.

18.

Mr. McCarthy testified that Chartwell’s policy of excluding

visitors such as the Union Representatives would come up for discussion

“a couple of times each month”, but the CIC had determined not to

change the policy even though the provincial directives and

consequential expectations had changed in the summer of 2021. Mr.

McCarthy explained Chartwell did not alter its policy then as “no one felt

confident we were out of it” and “there was no certainty that this was

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the long-term future”. Chartwell did decide, however, that it would be

acceptable to open up the homes to the admission of entertainers, a

class of permitted visitor identified in the provincial directive. Similarly,

when permitted to do so by the provincial guidance, Chartwell conducted

tours of its retirement homes for prospective residents.

Maureen Shipperly

19.

The second witness for the responding parties was Ms. Maureen

Shipperly. She joined Chartwell in November 2020. Before that, she had

been employed as a SEIU Representative for approximately ten years.

Ms. Shipperly is Director of Labour Relations with Chartwell Retirement

Residences. She is responsible for its Ontario East Region and provides

labour relations direction and guidance to forty-four retirement homes.

20.

Ms. Shipperly testified that when she began her employment

with Chartwell in 2020, she was advised of the corporate direction that

Chartwell staff were not permitted to enter homes at which they were

not employed. Accordingly, she said she has not been permitted to enter

the homes assigned to her and has conducted meetings with

management staff by phone or on virtual platforms. Ms. Shipperly also

testified that she was advised that “Chartwell’s corporate direction was

to limit visitors to homes in accordance with Directive #3”, adding:

“Union Representatives were not essential visitors to residents and

accordingly not permitted entry.” She confirmed that, throughout the

pandemic: “Chartwell has maintained the policy of restricting Union

Representatives who are not employees of the home from visiting and

have communicated that meetings must be held virtually. Any

exceptions to this rule must be reviewed and approved by CIC corporate

head office”.

21.

Ms. Shipperly has participated on behalf of Chartwell in virtual

grievance meetings, labour-management meetings and collective

agreement negotiations with SEIU Representatives responsible for her

assigned homes. She addressed the Union’s practices as follows:

17. Prior to the pandemic, I am aware that union general

membership meetings in long term care homes and

retirement homes were held in staff rooms at a home. Staff

rooms are dedicated space for employees to use during their

breaks and generally can be small rooms. Through my

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experience as a UnionRepresentative, I know that when a

union general membership meeting takes place, union

members may be coming in and out of the room where the

meetingis taking place. During the pandemic, all homes had a

goal of limiting movement around buildings and ensuring

social distancing. This has meant that staff rooms will have

limited numbers of employees permitted inside at any given

time. Pre-pandemic, some homes may have permitted the

Union to use a room other then [sic] a staff room for a

general membership meeting. However the pandemic has

required all homes to prioritized [sic] available space for

resident useor pandemic related uses. For example, many

homes have turned available rooms into a dedicated space

for rapid antigen testing, additional staff rooms (to maintain

limits on persons in a room) or additional dining space for

residents.

18. SEIU Representatives have never had unfettered access

to attend on an Employer’s premises. Even where there is

not explicit language in a collectiveagreement concerning a

Union Representative attending on an employer’s premises,

they have always been required to request permission. This

has never been more important then [sic] during the

Pandemic. During the Pandemic some homes have

implemented protocols concerning staff co-horting [sic] to

mitigate risks caused by COVID-19. Additionally, when a

home is in outbreak,it is required to follow local Public Health

direction concerning lockdowns and/or co-horting [sic] of

residents/staff. These measures play an important role in the

effort to minimize against [sic] the risks of exposure to

COVID-19.

22.

In her will say, Ms. Shipperly gave the following evidence about

her involvement with the Union’s requests for in-person meetings:

20. All Union Representatives (for SEIU and other unions)

have been aware of Chartwell’s rules concerning attending

on property during the pandemic.

21. In or around July, 2021 when revisions were made to

Directive #3, some UnionRepresentatives asked to attend

meeting [sic] in person. When requests for in person

meetings were brought to my attention or made directly to

me, I responded informing that Chartwell was still not

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permitting onsite meetings. SEIU representatives did not

raise any concerns about this or seek to discuss the matter

in any detail. No grievances were filed and no discussions or

concerns about this took place in Labour Management

meetings that I attended. This Application to the Board is the

first time the Union has expressed any issue with the

employer’s rule.

22. Sonia Yung is the Union Representative for Constantia,

Park Place, Avondale, Scarlett Heights and Gibson which are

all retirement residences and the Gibson Long-Term Care

residence.

23. Bella Aggarwal as the Human Resources Manager is

Yung’s first main contactfor Scarlett Heights and this home

falls within my portfolio. I have attended virtual labour

management meetings with Ms. Aggarwal at homes where

Ms. Yung is the Union Representative.

24. Ms. Yung has participated in several virtual labour

management meetings. In email correspondence of August

23, 2021 between Ms. Yung and Ms. Aggaral [sic] that I am

copied on, Ms. Yung requested an in person labour

management meeting for Scarlett Heights and stated that

she was aware that the home was accepting visitors for

meeting purposes. Bella responded advising her that in-

person meetings were not happening. Ms. Yung expressed

no concernsregarding this response and did not seek to

discuss the matter further.

25. A Labour Management Meeting for Scarlett Heights took

place on September 21, 2021. I did not attend that meeting

but was informed that during the meeting, it was reiterated

to Ms. Yung that Union Reps were not permitted on site. Ms.

Yung was also aware that Chartwell staff who are not

employees of ahome are not permitted to attend on site.

26. On September 24, 2021, I was advised by Luciana

Capitao,⁴General Manager of the Gibson Retirement

Residence that Ms. Yung came on the property on September

nd

22

in the afternoon without notice and without seeking the

Home’spermission to attend on site. Ms. Capitao advised

⁴Using her preferred name, Luciana Capitao testified as Luciana Vieira.

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that she was informed that Ms. Yung was conducting a

steward meeting in the parking lot of the Gibson Retirement

Home. At no time did Ms. Yung reach out to Ms. Capitao,

Ms.Aggarwal or myself to advise she wished to hold an in-

person steward meeting.

27. Ms. Yung was fully aware that she was required to seek

permission to attend on site to conduct meetings. She was

well aware that Chartwell was still not permitting on-site

meetings. She clearly disregarded this instruction and

attended on site. This was improper and particularly

concerning as the COVID-19 Pandemic continues on.

28. On September 24, 2021, I wrote to Ms. Yung and

informed her that we had been made aware that she

attended on site without seeking permission after the

employers [sic] previous clear communications to her that

Union Representatives were not currently permitted on site.

Further, in my correspondence, I made clear to Ms. Yung

that Chartwell was not telling the Union it could not meetwith

its members. Rather, such meetings had to be held in their

offices or online. Given Ms. Yung’s clear disregard of

Chartwell rules, she was put on notice that if this occurs

again the Home will consider this trespassing and will contact

the police. Given Ms. Yung was clearly aware of the rules, it

was necessary to put her on notice this could not continue

and thatthere could be consequences.

29. Ms. Yung did not respond to my correspondence to

provide her rationale for attending on site without seeking

permission in advance. No grievance was filed by the Union

and since that time all meetings have been conducted

virtually. The communication to Ms. Yung was an isolated

incident which was directed to her specific behaviour.

30. To date no Union Representative have [sic] made a

request to me to attend on site at any particular home.

Grievance meetings, labour management meetings and

bargaining for my sites have continued virtually. I understand

Chartwell’s policyrestricting access is a temporary measure

in light of the COVID-19 pandemic.

23.

Ms. Shipperly’s email to Ms. Yung on September 24, 2021 read

as follows (without omissions or corrections):

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It has been brought to our attention you have been on

Chartwell Property conducting meetings in the parking lot.

We have been very clear via email when you requested

access and subsequently at a recent Labour Management

Meeting. You currently do not have permission to be on

Chartwell Property. As an employer we have the right to

manage and decide who is able to be on our property, as this

is privately owned property.

By not permitting the Unions meeting on site we are not

telling the unions that they can't conduct business they need

to find alternate areas such as Union office or online.

This email serves as our final notice to inform you that

should you come on Chartwell property again, we will

consider you as trespassing and we will contact the police to

remove you from property.

24.

In supplementary testimony, Ms. Shipperly acknowledged that

she had learned that Ms. Yung’s attendance was to deliver copies of the

collective agreement; however, she explained that she was concerned

nevertheless as she had met with two stewards⁵who had “left the

building to see her”. Ms. Shipperly and Ms. Yung did exchange follow-

up messages. Ms. Yung wrote six minutes after the time of the above

email: “I did not conduct any meetings. I came to exchange the PT and

FT booklets. Luciana [Ms. Luciana Vieira] thanked me by way of email

the last time I came to drop off the booklets.” Ms. Shipperly replied

within three minutes: “Your notice stands you came on property and

have been told not to come on property.” Ms. Shipperly explained that

Representatives could drop materials off at a screening desk or

reception desk, the first point of contact in the building.

25.

On cross-examination, Ms. Shipperly insisted on the accuracy

of her evidence that “SEIU representatives did not raise any concerns”

about her advice that Chartwell was “still not permitting onsite

meetings” even though the record included several instances of

Representatives asking for consideration and questioning Chartwell’s

interpretation and application of the provincial directives. Ms. Shipperly

reiterated that the Union did not grieve, and Representatives did not ask

again. She did concede that her statement (at paragraph 29 of her will

⁵In fact, there were two and a former steward as noted below.

- 17 -

say) that Ms. Yung did not respond to her September 24^threbuke was

“a mistake” and, further, that Ms. Yung and another Union

Representative had raised concerns “after they were given answers”.

26.

When cross-examining Ms. Shipperly regarding the situation on

September 22, 2021, counsel for the Union asked her to explain the

difficulty she had with the Representative meeting with stewards in the

Chartwell Gibson parking lot given that Ms. Yung had remained in her

vehicle and had spoken with the stewards through an open window. Ms.

Shipperly stated first that Chartwell did not want “people mingling in the

parking lot” and that “it is an issue to have people meeting in the parking

lot with masks off”. She allowed that it would be “okay to meet on the

sidewalk” — that is, the public sidewalk beside the street outside the

Gibson Retirement Home parking lot — but in the parking lot people

were obliged “to meet public health guidelines”. She then suggested

that the stewards meeting with Ms. Yung in the parking lot “could cause

more people to go out and meet them”. Ms. Shipperly offered as another

consideration that she or Chartwell “don’t want people being disrupted

during work hours”. Counsel put to Ms. Shipperly that she was

expressing reasons that had nothing to do with COVID and she

responded that people “were supposed to be inside working”.

27.

Counsel for the Union continued with facts that were later

substantiated by Union witnesses — specifically that Ms. Yung had

returned to exchange collective agreement booklets, had remained in

her vehicle, and had asked the stewards to come out on their break. Ms.

Shipperly responded that there were two stewards in the parking lot

who were on paid time. She asserted that they were not on break and

that Ms. Yung should have gone to the reception desk, masked in

compliance with the provincial directive. When counsel pursued the

matter, asking for her confirmation that stewards on break should not

go to the parking lot, Ms. Shipperly responded that Ms. Yung did not

have permission to be there and had been told not to be on the property:

“She knew she wasn't to be there.” Ms. Shipperly was also asked to

reconcile her concern about these stewards with the fact that employees

on breaks are allowed to be in the parking lot in order to smoke. She

offered that one of the concerns with these stewards being away from

the building meeting Ms. Yung was that they might not be responsive to

any alarm that might be sounded, whereas smokers might be closer to

the door and might be able to hear and react to any alarm that was

given inside the building.

- 18 -

28.

Dealing with the same issue on re-examination, Ms. Shipperly

suggested that in this instance the stewards might have been required

to “screen back in” and also might have been required to change their

masks. She noted that Ms. Yung did not confirm that those protocols

were followed. Furthermore, on re-examination Ms. Shipperly confirmed

that if someone were on the property and failed to follow protocols,

Chartwell would be responsible “if COVID were brought in”. Also,

Chartwell could be cited by the “Ministry of Labour” if people were not

wearing PPE and the like. Ms. Shipperly noted again that there was no

confirmation from Ms. Yung that the people involved with her were

following protocols.

29.

Ms. Shipperly also gave evidence that the Union had convened

a general membership meeting opposite one of its sites in the parking

lot of a Winners store and that the meeting had been on the employees’

own time.

Bella Aggarwal

30.

Ms. Bella Aggarwal is employed by Chartwell Retirement

Residences as a Human Resources Manager. Her portfolio includes

twenty retirement homes in Northern and Central Ontario.

31.

In her will-say, Ms. Aggarwal stated:

3. Prior to COVID, my duties included travelling to and from

my assigned homes to provide in-person assistance to

management staff. I would attend in person to support

management for grievance meetings, investigations,

termination or disciplinary meetings.

4. There are a number of unions that represent employees

in Chartwell homes, including SEIU, CLAC, CUPE, OPSEU,

UNIFOR, UFCW, and USW.

5. During the Pandemic, all Chartwell staff who were not

employees of an individual home, including myself, were

instructed to work from home and werenot permitted to

enter any long-term care or retirement homes, without prior

authorization on exceptional basis. My understanding is that

Union Representatives who were not employees of a home

were not permitted to enter the home.

- 19 -

6. Throughout the pandemic, I have conducted all human

resources and labour relations business virtually with all

unions, including SEIU. This includes labour-management

meetings, grievance meetings, discipline meetings and

termination meetings. Where discipline or termination

meetings took place, I attended virtually and the general

manager/front line manager of the home waspresent in-

person in addition to a Union Steward who was an employee

of the home. There was an occasion where an employee who

was also a Union steward attended a meeting virtually

because they were not in the home at the time.

7. At some of the homes in my portfolio, prior to Covid-19,

my understanding is that SEIU representatives were

conducting general membership meetings on site. When a

general membership meeting was held at a home, the Union

Representative would contact the General Manager of the

home and request to hold the meeting on a particular date

and time. Once approved, the Union Representative may

forward the notice of the meeting to the General Managerof

the Home and ask them to post it or have a steward post the

notice.

8. In all the homes where SEIU is the bargaining agent that

are in my portfolio, it is my understanding, a Union

Representative is required to seek approval in advance to

attend on the employer’s property, pursuant to language in

the collective agreement. Prior to COVID, these requests

were generally approved based on the needs of the home.

Prior to covid, it was always understood thatmeetings were

in person. However, there were some instances where a

UnionRepresentative who was not an employee of the home

may have attended meetings (e.g. discipline meetings,

investigation meetings etc.) by conference call. If a home

was experiencing an outbreak (e.g. a gastrointestinal virus,

or the flu), I would instruct the home to reschedule any

meetings (e.g. labour management or grievance meeting)

booked.

9. The residents of Chartwell retirement homes are elderly

people with multiple health issues. Due to their age and

health, the residents of Chartwell homes are more

susceptible to negative outcomes as a result of infection from

COVID-19. Limiting individuals entering the home and

- 20 -

conducting business virtually whenever possible mitigates

some risk for the protection of these residents andstaff.

10. I am aware that inspectors have attended at Chartwell

properties. One long term care residence was issued orders

for covid protocol infractions that took place outside the

home, on the property.

11. All Union Representatives (for SEIU and other unions)

within my portfolio have been aware of Chartwell’s position

concerning attending on property during thepandemic.

12. On September 15, 2021, Union Representative Allison

Trumbley wrote to Oliver Stone, General Manager for

Georgian Traditions, stating she was “following up with [him]

regarding the requirements for entering the home at this

time.” I was forwarded her email for response. I responded

and advised Ms. Trumbley she was not permitted in the home

as per the public health directivesand there had been no

change to this. Ms. Trumbley asked that I provide her with

the public health directive I was referring to and stated she

had access toseveral other sites with no issues. She did not

clarify whether those sites were Chartwell properties. I

informed Ms. Trumbley I was referring to Directive #3 which

referenced general visitors pertaining to those visiting

residents. Ms. Trumbley responded with the link to the most

recent version of the Directive and I replied to her stating

that Union Representatives did not meet this definition. I

provided her with this response because the language spoke

of visitors for residents. I informed Ms. Trumbley, just as I

had other Union Representatives that at this time, we were

not permitting the union for site visits,the employer had the

right to determine who was on property [sic] but we were

nottelling unions they could not conduct business but rather

they need to find alternate areas like the union office or

online.

13. Sonia Yung is the SEIU Representative assigned to

Constantia Retirement Residence, Park Place Retirement

Residence, Scarlett Heights Retirement Residence and the

Gibson Retirement Residence. All these homes are in my

portfolio.

14. During a Labour-Management meeting on June 16,

2021, Ms. Yung inquired about resuming on-site meetings.

- 21 -

Ms. Yung was informed that in-person meetings have not

resumed at Chartwell and Chartwell would advise when any

changes to this occurs. At that time, Ms. Yung did not express

any urgent need or reasons to attend on site as opposed to

proceeding virtually nor did she request any exception to the

rules. No grievances were filed by SEIU.

15. Ms. Yung has attended virtual labour management

meetings where I have been in attendance, this includes for

Constantia, Park Place, Gibson and Scarlett Heights.

16. On July 1, 2021, I was forwarded an email sent by Ms.

Yung to Paul Christians, the General Manager of Scarlett

Heights. Ms. Yung emailed Mr. Christians stating that she

planned to come to Scarlett Heights and meet with the

th

steward team in the parking lot on July 8 at 3:30 pm and

hoped it was okay. Mr. Christians responded and informed

Ms. Yung that the current direction was that Union

Representatives are welcome to meet with their members or

stewards off site but cannot be on Chartwell property. Ms.

Yung copied me on her response asking whether he was

suggesting that she was not permitted to be outside in the

parking lot. I responded to Ms. Yung informing her that

Chartwell property is private property and as per the

agreement (meaning the collective agreement) she has to

ask permission before attending and at this time, the home

was declining the request. She responded to state that Lynda

had been permitted to meet and drop off kits at Chartwell

homes last year – during the “height of the pandemic”.

Lynda Waechter was the Union Representative assigned to

Scarlett Heights prior to Ms. Yung. I am not aware of Ms.

Waechterbeing permitted to meet on site. My understanding

is that many Union Representatives have contacted homes

throughout the pandemic and requested to drop off items for

their members. I understand that Union Representatives

have been permitted to leave the items at the front desk but

they would not be coming inside the home to distribute items

or conduct any meetings on the property.

17. In email correspondence of August 23, 2021 to me, Ms.

Yung requested an in person labour-management meeting

for Scarlett Heights, claiming that she was aware that the

home was accepting visitors for meeting purposes. I

respondedadvising her that in-person meetings were not

- 22 -

taking place. Ms. Yung expressed no concerns regarding the

meeting proceeding virtually and did not seek to discuss the

matter further. Ms. Yung sent the invitation for the virtual

meeting for September 21, 2021.

18. During the September 21, 2021, labour management

meeting for Scarlett Heights, it was reiterated to Ms. Yung

and the union stewards present that Union Representatives

who are not employees of a home were still not permitted in

the building. I reminded them that I myself was not permitted

in the building. The Stewards stated that contractors such

as electricians were being permitted, and family members

were allowed in the building and individuals were touring the

site. I reminded them that any contractors on site would

have been present to perform necessary work (e.g.

maintenance) and tours were also necessary in order to fill

vacant suites in the home. The Union steward confirmed that

75 out of 200 available suites were vacant. During the

meeting,Ms. Yung did not state any specific reasons why the

current process of virtual meetings was a problem nor did

they request any exception to Chartwell’s position. No

grievance was filed.

19. On September 24, 2021, Luciana Capitao [i.e. Ms.

Vieira], General Manager of the Gibson Retirement

Residence advised myself and Maureen Shipperly, Director

of Labour Relations that on September 22, 2021, Ms. Yung

came on the property in the afternoon without notice and

without seeking the Home’s permission to attend on site. Ms.

Capitao advised that she was informed that Ms. Yung was

conducting a steward meeting in the parking lot of the

Gibson Retirement Home. At no time did Ms. Yung reach out

me to advise she wished to hold an in-person steward

meeting or that she was going to be coming to the property.

20. Ms. Yung was fully aware that in-person meetings were

not permitted as this was expressly discussed and reiterated

to her a few days earlier during the Labour Management

meeting at Scarlett Heights. She clearly disregarded this

instruction and attended on site; I only learned of her doing

this after receivingbeing informed [sic] by Ms. Capitao. This

was improper and particularly concerning as the COVID-19

Pandemic was still going on.

21. On September 24, 2021, Ms. Shipperly emailed Ms. Yung

- 23 -

and copied myself and others informing Ms. Yung that it had

come to our attention that she was conducting meetings in

the parking lot without permission after it had been made

very clear to Ms. Yung that in-person meetings were not

permitted on Chartwell property at this time. In that email

she was informed that Chartwell was not telling unions they

cannot conduct business, but rather they need to find

alternate areas like the union office or online.

22. To my knowledge, Ms. Yung is the only SEIU

Representative that attended onat [sic] any of the sites in

my portfolio without permission during the pandemic to

date.

23. Following this communication with Ms. Yung, I was

forwarded an email for response sent to Curtis Walter,

Director of Regional Operations for Chartwell Retirement

Residences in Thunder Bay, from SEIU Representative Bill

Joblin on September 26, 2021. In that email, Mr. Joblin

inquired about whether SEIU Representatives can see their

members inside the building and requested confirmation if

this was true. Prior to this, Mr. Joblin had not made any

specific request to attend on site at any location to my

knowledge. I replied to Mr. Joblinon September 28, 2021 and

advised him that at this time, Chartwell was not permitting

the Union for site visits and stated we were not telling unions

that they could not conduct business but that they needed

to find alternate areas such as the union office or online. I

received no further response from Mr. Joblin and no request

to reconsider any particular circumstances to permit him

to enter any homes where he is the Union Representative.

24. On September 27, 2021, Jody Etmanski sent an email to

Marisa Zarifa, General Manager for Barkley (which is no

longer owned by Chartwell). inquiring if she was permitted

in the home stating “thinking we may want to schedule a

LMM sometime soon.” This email was forwarded to my

attention to respond.

25. On September 28, 2021, I responded to Ms. Etmanski

and informed her at this time we were not permitting the

Union for site visits. I stated as an Employer, we have the

right to manage and decide who is able to be on our property

as it is privately owned property. I reiterated to Ms. Etmanski

that by stating that we were not permitting Union meetings

- 24 -

on site, we were not telling the Unions they could not conduct

business, they need to find alternate areas such as the union

office or online. I received no response from Ms. Etmanski.

She did not send any correspondence seeking to discuss her

query about whether she was permitted in homes any

further. It is my understanding she did not make a further

request to schedule a Labour Management meeting –

virtually or otherwise.

26. In late November, 2021, Ms. Yung made further

requests to attend on property of Chartwell homes for

general membership meetings and labour management

meetings.

27. On November 5, 2021, Ms. Yung sent an email to Bonnie

Barron, General Manager of Park Place Retirement Residence

requesting to have a Labour Management meeting and a

General Membership meeting on site at Park Place

Retirement Residence and provided her availability in

November to do so. The Labour Management Meeting was

conducted virtually on December 2, 2021. As previously

communicated to Ms. Yung, General Membership Meetings

were not permitted inside the home.

28. On November 22, 2021, Ms. Yung sent an email to Ms.

Barron requesting to attend the home for a general

membership meeting with members in December. She

further advised that there were SWAG items that SEIU would

like to distribute and requested that if she was not permitted

to come that stewards be provided with a small area to store

the items to distribute to their colleagues outside of their

working hours. Ms. Barron copied me on her response to Ms.

Yung that informed her that she was not able to come in for

a general membership meeting at that time and there was

no storage space at the home. While there was no storage

space available, Ms. Yung would have been free to drop off

items.

29. On November 22, 2021, Ms. Yung sent an email to Ms.

Capitao, General Manager of Gibson Retirement Residence

requesting to come and have a general membership meeting

with the members in December. She further advised that

there were SWAG items that SEIU would like to distribute

and requested that if she was not permitted to come that

stewards be provided with a small area to store the items to

- 25 -

distribute to their colleagues outside of their working hours.

Ms. Capitao responded to Ms. Yung informing her that the

general membership meeting could not be scheduled onsite

yet, but she could drop off the items with the Stewards.

30. I was advised that Ms. Yung made the same request for

a general membership meeting and to drop off swag to the

General Managers of both Constantia Retirement Residence

and Scarlett Heights. On November 24, 2021, Mr.

Christiaans forwarded me an email from SEIU requesting to

post a notice for a General Membership Meeting on

December 9, 2021 “On site outside Parking Lot”. Consistent

with prior communications with Ms. Yung, general

membership meetings were not permitted on site but she

was welcome to drop off items for the stewards to distribute

to the members.

31. By the beginning of December, 2021 the Omicron

variant of COVID-19 began spreading in the community

which is highly contagious. At the end of December 2021 a

confirmed outbreak was declared at Scarlett Heights

Retirement Residence and the Gibson Long Term Care

Residence.

32. To date grievance meetings, labour management

meetings and bargaining for my sites have continued

virtually. I understand Chartwell’s position restricting access

is a temporary measure in light of the COVID-19 pandemic.

32.

When cross-examined with reference to her statement that

tours were being conducted in homes and “were . . . necessary in order

to fill vacant suites in the home”, Ms. Vieira stated that tours were being

done both virtually and in person, they “were happening generally”, and

“rules were changing”.

Luciana Vieira

33.

Ms. Luciana Vieira was General Manager at Chartwell Gibson

Retirement Residence until February 4, 2022. She began her

employment with Chartwell in 2005, was the Health and Wellness

Manager at Chartwell Gibson for two and one-half years and its General

Manager for three and one-half years.

- 26 -

34.

Ms. Vieira gave the following description of the Chartwell Gibson

facilities:

4. The Gibson Retirement Residence is located at Leslie and

Steeles in North York at the southwest corner of Leslie Street

and Steeles Avenue East. The Gibson Retirement Residence

is on the same grounds as the Gibson Long Term Care

Residence (“Gibson LTC”). There are 71 suites in the home

(studio and one bedroom). We provide residents with 24-

hour medical attention, meals, assistance with activities of

daily living, recreational and wellness activities and laundry

services. Most of our residents are in their nineties and due

to their age and healthare highly susceptible to negative

outcomes due to contracting COVID-19.

5. The parking lot at the Gibson is relatively small. Residents

have priority to rent spaces if they have vehicles and the

remainder is dedicated to staff and visitors. We currently

only have one resident renting a parking spot but parking has

alwaysbeen a challenge at the home because of the limited

number of available spots.

. . .

9. During COVID, residents have used the parking lot as an

outdoor space for exercise and take walks there. The parking

lot has been a safe space for residents and it is common they

will not wear their masks in the parking lot while going for a

walk to exercise.

35.

Ms. Vieira’s evidence was that neither Chartwell staff who are

not employees of the home nor “Union Representatives who are not

employees of the home are . . . permitted into the home.” As for others,

Ms. Vieira testified:

13. When the Directives of the Ministry were amended to

allow for outdoor visits with family members, we had very

strict rules put in place that were required to be followed.

We had a designated tent set up for visitors to meet with

residents outside. Any outdoor visits had to be scheduled in

advance. Visitors must complete the required active

screening protocols (e.g. rapid antigen testing, confirmation

ofno covid symptoms), have their visit logged (for contact

- 27 -

tracing) and use appropriate personal protective equipment

and follow social distancing rules whilethey are on property,

including in the parking lot. We are required to keep track of

all visitors who attend on our property in accordance with

Public Health protocols.

14. Every resident, staff person, family member or other

visitor is required to follow the rules concerning [sic] when

attending at the home. The Home is responsible for

everything that happens on the property. We have at least

one resident with a large family who was coming to the

parking lot to meet with the resident for visits that were

unannounced and unscheduled. I put the resident and their

family on notice that unscheduled visits were not permitted

and individuals coming to the parking lot for visits

unannounced were not authorized to be on the property and

if this happened in future Toronto police would be called. We

have ensured all residentsand their family members are

aware of the rules concerning attending on property to

ensure the rules are followed. The rules are in place for the

protection of our residents and the staff because COVID

presents a serious health risk.

15. Deliveries are permitted and have been happening

throughout the pandemic. Deliveries are contactless and

items are dropped off at the table between the sliding doors

of the front entrance. Items that are delivered are sanitized

before being brought into the building.

16. Residents and staff of the Gibson LTC have been directed

not to come to the retirement home side of the grounds.

Gibson LTC staff have been directed not to park on the

retirement home side of the grounds as well. There have

been some complaints from residents of the retirement

home concerning the use of the inner circle on the retirement

home side of the grounds by general visitors. The inner circle

is an outdoor area on the retirement home grounds that is a

sitting area with tables and chairs that is a dedicated space

for residents, and some use this space without wearing

masks. When staff are in the sitting area, they are required

to be in full PPE.

36.

Having referred to the practice of meeting with the Union

“virtually”, Ms. Vieira recounted an episode involving her learning of a

- 28 -

visit to the Gibson Retirement Residence by Union Representative Sonia

Yung:

nd

rd

20. On or about September 22

or 23 , Union Steward

Marissa Jarito approached meand informed me that she and

Ravindra (“Ravi”) Mahendiran [sic] met with Ms. Yung inthe

parking lot at the home in the afternoon. Ms. Yung was still

a fairly new Union Representative to the home at the time. I

was unaware that Ms. Yung had been on property. Ms. Yung

did not advise me in advance she was seeking to come on

property to meet with Stewards. I informed Ms. Jarito that

she should have informed me that Ms. Yung was on property

as visitors are not permitted, includingin the parking lot and

that I was not aware that she was coming. Neither Ms. Jarito

nor Ms. Mehendiran were disciplined for this incident.

21. I believe when Ms. Yung came to the property, she

brought printed copies of the collective agreement. The home

paid for half the cost of printing of the agreements.I believe

we were provided with approximately 100 copies (60 for

existing staff andany new hires). The agreements are small

booklets and would have been in one box.

22. I did thank Ms. Yung for dropping off the collective

agreements but did inform Bella Aggarwal and Maureen

Shipperley what happened because during the pandemic,

Union Representatives are not permitted to have in-person

meetings on Chartwellproperty.

23. Union Representatives have always been required to

request permission to attend on property even prior to the

pandemic. Prior to the pandemic, Union Representatives

would contact me in advance and let me know when they

were planning on coming. Prior to the pandemic, I have

always agreed to allow Union Representatives to come on

property for visits or meetings. Labour management or

grievance meetings were always in person. We have been

doing these meetingsvirtually during the pandemic.

24. It was completely unnecessary for Ms. Yung to meet with

the Union Stewards to deliver the collective agreements.

There is a process in place for delivering items.If Ms. Yung

had informed me that she intended to deliver the collective

agreementsand was going to meet with the Stewards in the

parking lot, I would have explained to her that the

- 29 -

agreements can be left at the table at the front door and

reminded her the in-person visits are not permitted.

25. It is my understanding that when Ms. Yung came to the

property, she did not complete the COVID screening and did

not check in to complete contact tracing which we require of

all visitors, including family members who visit residents, all

external partners, etc. to actively screen. Had Ms. Jarito not

informed me that Ms.Yung was on property, I would have

been unaware of her attendance. Gibson Retirement

Residence is required to ensure screening and contact

tracing is completed for all persons who visit, even those

who conduct visits in the parking lot because it is part of the

Gibson property. The rules are in place to keep everyone

safe – residents and staff. The Gibson Retirement home is

responsible for what happens on its property and we expect

everyone – staff, residents, familymembers and anyone else

visiting - to follow the rules; Ms. Yung did not.

26. In late November, 2021, Ms. Yung reached out to me by

email and asked to come to the home and have a general

membership meeting with the SEIU members in December.

She also said in her email there was some swag items she

wanted to distribute and asked that if she wasn’t allowed in

the home if the stewards could be given an area to store

them to distribute to their colleagues. I responded informing

her that general membership meetings were not permitted

onsite, and she could drop off the items with the Stewards.

The delivery process has not changed and she would have

been expected to leave the items for the members at the

table between the sliding doors for the stewards.

27. Prior to the pandemic, union general membership

meetings were held in the staff room which can hold about

20 people. With social distancing requirements, the staff

room can only hold 6 people at a time.

37.

Ms. Vieira also testified about entertainers admitted to Chartwell

Gibson after the amendment of Directive #3 in July 2021 that, she

stated, “specifically identified that social gatherings and organized

events were permitted and specifically contemplated general visitors

who are required to facilitate programs or events can attend; this

included performers.” Having noted that “we have scheduled

- 30 -

entertainers to perform for residents to give them something fun in their

day and lift their spirits”, Ms. Vieira explained:

29. Entertainers who have performed on the property are

required to check in (for contact tracing), complete

screening and rapid testing. Entertainers are required to

follow all social distancing rules and masking rules as well.

When there is a performance, the residents are socially-

distanced and we track where each resident sits.

38.

Ms. Vieira was questioned about her reference to the visit to

Gibson Retirement Residence by Ms. Yung on September 22, 2021 and

testified that she was not advised that Ms. Yung had attended there in

June 2021 to drop off collective agreement booklets.

39.

Ms. Vieira was unable to answer when tours for prospective

residents were resumed at Gibson Retirement Residence in 2021. She

also confirmed that “pastoral services” were resumed for the residents

there, but “couldn’t say when”. Similarly, when referred to calendars of

events put on for residents, she could not say which entertainers

performed indoors and which performed outdoors.

40.

Ms. Vieira confirmed that when residents were permitted to

undertake outings, some had gone on escorted trips to Dollarama and

some had gone “apple picking”.⁶Ms. Vieira explained that residents

returning from Dollarama were not required to undergo rapid testing for

COVID-19 “because that is their home”. Those returning from “apple

picking” would sanitize their hands and undergo “active screening”.

41.

As for entertainers, Ms. Vieira testified that singers wore masks

while singing, but there was no investigation of entertainers’ vaccination

status. She stated that she expected they would be vaccinated and that

they did require a negative PCR test within fourteen days. She was

“pretty sure” Gibson had entertainers in the summer of 2021 and that

they were probably inside the building.

42.

When asked to confirm that Ms. Yung had been given none of

the information about protocols for visitors that is recorded at paragraph

13 of her will say, Ms. Vieira responded that she had “no obligation to

6

It was explained that the residents did not engage in apple picking but were able to simulate the

experience by purchasing apples as part of their visits.

- 31 -

communicate that to her” or other Union Representatives and that “staff

knew” as did Ms. Yung’s predecessor, Ken Evett.

43.

When asked to confirm that Ms. Yung had not been given the

information recorded at paragraph 14 of her will say — ensuring that

“all residents and their family members [were] aware of the rules

concerning attending on property” — Ms. Vieira responded that she had

not communicated that as Ms. Yung had not asked. She added that she

would have told Ms. Yung had she known of her intention to attend on

site. Again, she added that Ms. Yung’s predecessor knew that the

property was “off limits”; however, she also stated that Mr. Evett was

aware of the arrangements for deliveries described in paragraph 15 of

her will say. Ms. Vieira offered that Mr. Evett, understood that it was not

safe to be meeting in the parking lot.

44.

When cross-examined about the session in the parking lot on

September 22nd involving Ms. Yung and stewards, Ms. Vieira denied

knowing that Ms. Yung had attended there and delivered collective

agreements in the parking lot in June 2021 and, contrary to the evidence

that was to be given and was recorded in Ms. Yung’s email to Ms.

Shipperly in September 2021, Ms. Vieira denied having thanked Ms.

Yung for having made the delivery in June 2021. In the same context,

Ms. Vieira denied evidence that was to be given by Mr. Mehendiran that

he had asked her for permission to meet Ms. Yung in the parking lot.

Ms. Vieira said that he did not ask, and she did not say “Yes”. Ms. Vieira

insisted that she first found out about the event after Mr. Mehendiran

met Ms. Yung in the parking lot.

45.

As for the permitted delivery of materials to a table between

doors at the entrance to the retirement home, Ms. Vieira testified that

people dropping off those deliveries do not have to screen. She also said

that there is a sign to indicate to such individuals that they are to wait

if they see residents in the parking lot.

46.

On re-examination, Ms. Vieira said that entertainers

performing at Chartwell Gibson were subject to screening by the

receptionist “like anybody else coming onto the property”. As for

Dollarama and apple picking excursions, Ms. Vieira testified that those

were the responsibility of the Lifestyles Program Manager. She also said

that had she been aware of Ms. Yung’s attendance in June 2021, she

would have told her about the table between the sliding doors at the

- 32 -

entrance to the building and that Ms. Yung could not meet with stewards

on the property.

The Union’s Evidence

47.

Ms. Brebner was the principal witness for the applicant. She has

been a Union Representative for eleven years, and has responsibility for

two homes run by Chartwell, Empress Kanata and Chartwell Kanata.

She explained the significance of Representatives’ site visits as follows:

4. I use site visits to conduct a number of different kinds of

union business:

a.

b.

c.

d.

e.

formal and informal meetings with members;

general membership meetings;

labour/management committee meetings;

presenting grievances; and

bargaining.

5. In my view and based on my experience, it is no

substitute to try to interact with bargaining unit members

virtually. It is important that I be there in person, face-to-

face. I will explain why.

6. When I do a site visit, I run into, or meet, or am

introduced to members that I have never met before. I may

see them in the lobby or the dining area. I may meet them

in the staff room area where I can chat with them while

they are on their break. I may catch them on a shift

changeover – when this happens, I often am able to meet

with many members at once.

7. This is important for representation that I am building

connections with my members. They meet me and know

me on a personal and human level. They need this

connection or I cannot do my work effectively. There are a

significant proportion of workers who are new and I have

not even met. In Empress Kanata there are approximately

15 out of a staff of 50 were hired in 2020 and 2021 and for

Chartwell Kanata its 15 out of 33. To them, I’m no more

- 33 -

than a name. Some workers have come and gone and I

never met them.

8. The reality of my work is that it depends on trust and

rapport. There are lots of members who are not generally

active in the union but they are still our members and still

need to have our support. Often they are the most

vulnerable in the workplace and less likely to speak up.

But in my experience the way to start the conversation

with those members is to meet them in person and to be

around in person.

9. The problem with trust is that it needs to be built. I can’t

be a unknown picture on a Union board. A few have told

me that they were nervous to call me and unsure whether

they could get in trouble for doing so.

10. Often when I go in to a long-term care facility or

retirement home, some members who might be more

actively involved in the union will bring other members to me

to meet me. Or I will already be engaged in conversation

with other members, and someone new will see that

happening and join in. So I meet members and they come

to know me and understand my role. Then those members

who might not otherwise have picked up the phone to call

me can feel more at ease doing so.

11. In this way I also learn about new issues that would not

have otherwise come to my attention, or which would have

come to my attention but much later after which point the

problem may have grown or is chronic.

12. For example, I may be discussing a payroll issue that I

thought was unique to one member and someone will be

sitting with us or overhear us in the break room and I will

learn that they are having the same issue too. That other

member may not have come forward and I may never have

known they were having trouble if I had not been there.

13. Some things are a bit more subtle and harder to

describe. I may see members who are clearly upset and

be able to start a conversation with them. I may find out

someone was crying the day before and be able to go see if

I can help. I may hear there was a conflict between my

- 34 -

members and be able to help find ways to deal with that.

These are not the sorts of things that someone calls or

makes an appointment to deal with, typically. They come

up because I am there and I am seeing what is happening

in the workplace.

14. And of course I also deal with many issues that are very

personal. This can include issues involving harassment, or

medical issues to which a stigma is attached. In my

experience, members who are dealing with these sorts of

issues never just reach out to me out of the blue. They only

open up and disclose their problems or ask for my help once

I have built a connection with them and they feel

comfortable. I just cannot do that on mass virtual meetings

open to all members.

15. My experience over the last couple of years has been

that these sorts of issues have become quite prominent.

Healthcare workers are exhausted and often just all used

up. I would not be surprised to learn they have some form

of post-traumatic stress issues as a result of having been

on the front line of the pandemic. They need to know the

union is there for them and the best way for me to do that is

to literally be there. Just leaving my number or card can

never substitute building that connection

16. I also use my site visits to check the union board

and the health and safety committee board to ensure

they are up-to-date and check the date of the last Health

and Safety Committee meeting, ensure minutes were being

posted and what topics were covered. I check to see that the

seniority list is posted.

17. I also check other information provided to my members

in postings. I look over the schedules to see if they appear

to comply with the collective agreement requirements and

if they are posted on time. I look to see if there are any

new policies or announcements that might require my

attention and have not been disclosed to me. I can then

discuss these with management if they have not already

been brought to my attention.

18. While many of our homes do have stewards, it is not

realistic to expect them to replace the work of a union

representative.

- 35 -

19. For one thing, it is common knowledge that healthcare

workers are run off their feet these days. They just do not

have the time – nor would I expect their employers to give

them the time – to step away from their work duties to walk

around and meet with coworkers.

20. Second, they are not free to move about the building to

go meet others and check in with them. And even if they

were, they may be on different shifts, or have different

breaks. Even if the breaks line up, they are not long enough

to really meet with all the other members.

21. With respect to membership meetings, the difference

between being there in person and conducting them virtually

is just as stark to me. Nowadays when I host a virtual

membership meeting, the turnout is usually abysmal. I get

one or two members – sometimes none. There are many

possible reasons for this. I find that some of our members

still do not have the technology for virtual meetings or do

not understand (or trust) it.

22. But more fundamentally the virtual meetings are far less

effective because they are so much less communal. When

I can hold one in a home, often on shift change, people

see what is happening, stick their heads around the door,

and join in. More active members chase down coworkers

and have them join us. On the other hand, virtual meetings

happen after members are off shift, have commuted home,

and are now pre-occupied with things outside the

workplace. I commonly hear “I forgot” or “by the time I

got home I was just too tired” as an answer when I ask

why a member did not attend our meeting. At any rate, no

one is ever “dropping by”.

23. Finally, the expectation of our members remains that

I will be there in person. I have tried to hold virtual

membership meetings and been told by a steward that

three members are waiting for me in the break room. This

is how our members are used to dealing with us and I

believe it is what they are comfortable with. This is how I

have built my connections with them over eleven years. I

worry that members will begin to think their union is

disinterested in them if I cannot continue to connect with

- 36 -

them. These members need the reassurance of the

presence of a Union official. There is only one way to know

what condition the workplace, if the Home is providing

sufficient protect or how well the workers are holding up

and that is to actually go in spend time with the workers

and to see for yourself.

48.

The Union supplemented Ms. Brebner’s evidence with viva voce

testimony responsive to the will say statements of Mr. McCarthy and Ms.

Shipperly that were then available to the Union.

49.

Ms. Brebner acknowledged that it was necessary for a Union

Representative to request permission to hold a general membership

meeting at a site and also that the home could say that the proposed

date was not a good choice. However, she stated, the issue of

permission was as to when — and not as to whether — a meeting would

be held.

50.

Ms. Brebner had inquired about the status of the homes and her

having access to see the Union's members. The response had been that

she was not able to go in. When she advised Chartwell that the Union

was aware that tradespeople and entertainers were being permitted

access, she said the response she received was that “they were not

taking care of residents”. She testified to having been denied access to

bring collective agreements to one of the sites for which she was

responsible.

51.

On cross-examination, Ms. Brebner acknowledged that both

Chartwell properties assigned to her have employee-stewards, they are

the first line of support for workers in the workplace, and they and

workers have access to their Union Representatives by phone and email.

52.

Having testified about the capacity of certain rooms used for

meetings at various sites, on cross-examination Ms. Brebner agreed that

she was not saying that thirty or forty members were to be coming into

a meeting at a home. She recognized that “there were limits”, but she

maintained that the homes could permit meetings with limits on the

number of attendees as indicated by the provincial guidance. In that

context, she agreed that it was appropriate and necessary for the homes

to “mitigate contacts” in respect of COVID-19 and to abide by provincial

directives with a view to limiting the spread of the virus.

- 37 -

53.

Moreover, Ms. Brebner confirmed that the Union would allow

her to hold a membership meeting at a hotel, or some other rented

space, if she could not arrange to meet at the home. As it was, she had

held virtual meetings after March 2020 when Chartwell told her

meetings could not be held on their properties — that she “didn’t have

access to the homes”. In that context, she agreed that the Union could

grieve any violations of provisions relating to Union access and that she

was not aware of any grievances about the denials complained of in the

application.

54.

Ms. Brebner also agreed that the residents in the retirement

and long-term care homes were “older, more medically complex, more

susceptible to infection by COVID”.

55.

Ms. Brebner testified on cross-examination that she had

requested entry twice at Empress Kanata late in 2021 and not been

allowed access. She also mentioned advising that she would not be

comfortable entering the building. She had not been ready to have

membership meetings in closed rooms, but had entered buildings and

left. She said Representatives were allowed to drop off collective

agreements at the front door, but were denied access into the homes.

Ms. Brebner testified that she had not requested access to Chartwell

homes since being advised that the responding parties were not allowing

Representatives to enter and meet with members.

56.

Ms. Brebner acknowledged familiarity with the provincial

directives and agreed that they had been changing throughout the

pandemic. She also agreed that there had been direction that prohibited

non-essential visitors and that she had not seen a directive that

identified unions as essential visitors.

57.

On re-examination, Ms. Brebner reiterated that meeting

virtually with stewards was not adequate as they could not sense what

the Representative was relating “without her going in and seeing what

was going on”. Virtual meetings were not conducive “to sitting down and

looking at what was going on”. Moreover, she noted, virtual meetings

with stewards do not afford her contact with anyone other than the

stewards.

- 38 -

The Union’s Reply Evidence

58. The applicant called two witnesses to reply to the evidence

about Ms. Yung’s visits to Gibson Retirement Home and Scarlett Heights.

Ravindra Mehendiran

59.

The first was Mr. Mehendiran, a chef employed at Gibson

Retirement Home. He has been a Union steward for approximately four

years. He was party to the incident on September 22, 2021 with Ms.

Yung and two others. His evidence was that he and a person he referred

to as the “main steward”, Ms. Marissa Jarito, and a third person — he

identified as “Susan” and as a “former main steward” — met with Ms.

Yung in the Gibson Retirement Home parking lot. He testified that,

before doing so, he had gone to the office of his manager, Ms. Vieira,

and asked her if it was “okay” for him “to go out and meet Sonia in the

parking lot”. His evidence was that Ms. Vieira had responded: “No

problem”.

60.

Mr. Mehendiran testified that he heard nothing more about the

situation from Ms. Vieira. He confirmed that Ms. Yung remained in her

car for the duration of their interaction.

61.

On cross-examination, Mr. Mehendiran stated that he had not

met Ms. Yung before seeing her in the parking lot in September 2021.

Ms. Jarito had told him Ms. Yung was coming “a couple of hours” before

she arrived, and he wanted to meet her. As it was suggested that Ms.

Yung had called to announce her arrival, Mr. Mehendiran was asked

about Chartwell’s policy proscribing the employees’ use of phones while

working. He responded that managers “were not that strict”. As for the

timing of the visit, Mr. Mehendiran recalled that the encounter took place

“about two o’clock”, that he and Ms. Jarito finished at 2:00 p.m., and

that they were “almost done, five to ten minutes”. He was not sure

about Susan’s schedule.

62.

When challenged that Ms. Vieira had testified that she found out

about Ms. Yung’s visit after the fact, Mr. Mehendiran responded: “No. I

got permission from her before going out.” He reiterated that he had

told her that Ms. Yung was coming, and Ms. Vieira had said “Okay”. He

added that he went and “got permission before”, but he did not know

whether Ms. Jarito went to Ms. Vieira after the visit.

- 39 -

63.

Mr. Mehendiran confirmed on cross-examination that Ms. Yung

had not told them that Chartwell was not allowing meetings in the

parking lot. He also agreed that the box of collective agreements she

delivered could have been left at the desk provided for people to drop

off deliveries, but he added: “We went out to meet her.”

Sonia Yung

64.

Ms. Yung started working for the applicant as a Union

Representative on May 10, 2021. She was then assigned a number of

Chartwell homes, including Scarlett Heights, Gibson Retirement, and

Gibson Long-Term Care. Her will-say was provided “to reply to the

evidence relating to [her] visits to Gibson Retirement and Scarlett

Heights”. Her statement continued as follows:

4. On June 2, 2021, I attended at Gibson Retirement

sometime around the early afternoon. I went to drop off the

collective agreement booklets to the Chief Steward, Marissa.

At the time I believed there was only one collective

agreement to be dropped off.

5. I drove to Gibson Retirement, parked my car, and

walked towards the building. Marissa was coming out of the

building. I gave her the collective agreement booklets. We

exchanged brief greetings, and I left. I was wearing a mask

throughout our interaction.

6. Sometime later in the summer, I realized there are both

full-time and part-time collective agreements, and I had only

provided one set. I informed Marissa and we agreed I would

drop off the second set the next time I was going to be close

to the home.

7. On June 30, 2021, I requested to meet with the stewards

on July 8, 2021 at Scarlett Heights. On July 1, 2021, Paul

Christens, [sic] the General Manager, replied to me to say

that I was not permitted on the property. Then I responded,

asking whether I could meet with the stewards in the parking

lot. On July 2, 2021, Bella Aggarwald [sic] replied to repeat

that I was not permitted on their property.

8. On September 22, 2021, I arranged with Marissa to drop

off the collective agreement booklets to her at Gibson

- 40 -

Retirement in the parking lot. Gibson Retirement is located

at the corner of Leslie and Steeles so I did not expect to be

able to park on the street. Marissa and I discussed Ravi,

another steward, coming out to meet me on their break.

9. I arrived sometime in the early afternoon. Marissa and

Ravi came out of the building accompanied by Susan, a

former steward. I remained in my car. I passed them the

collective agreements through the window. She passed me

back extra collective agreements from the other set through

the window. I left. The whole interaction lasted about five

minutes at most.

65.

On cross-examination, Ms. Yung acknowledged that the

collective agreements with the responding parties required a Union

Representative to seek permission to conduct business on a Chartwell

site. She also acknowledged that she had enquired at a labour

management meeting in June 2021 and had been advised by Ms.

Aggarwal that Chartwell was not permitting on site meetings at that

time. Ms. Yung agreed that she had been told that the Union was not

permitted to have meetings with stewards in the parking lots. In

particular, she said that she was aware that parking lot meetings were

not allowed at Scarlett Heights and she was not told that different rules

applied at other sites.

66.

When cross-examined about a meeting with three stewards at

Gibson Retirement Home on September 22, 2021, Ms. Yung stated: “I

wouldn't characterize it as a meeting”. She did agree that she did not

inform the general manager that she was attending to drop off collective

agreements and said that she assumed that the situation would be the

same as had obtained in June. However, she did acknowledge that she

had not asked to determine the process for dropping off materials such

as the collective agreements.

Submissions of the Union

67.

The Union took the position that Chartwell’s denial of access to

its Representatives had a negative impact on the administration of the

Union and also on its ability to represent its members. The applicant

contended that the rationale advanced for the denial — the proposition

that access was contrary to COVID protocols — obscured the true reason

for the responding parties’ conduct.

- 41 -

68.

The Union characterized as red herrings the practices of other

trade unions, whether the Representatives and other employees of the

Union were allowed access to its offices, and whether Chartwell

restricted management employees from visiting facilities in which they

were not employed. Moreover, the applicant contended that it was of no

consequence that Ms. Yung had not asked Chartwell for permission to

enter its premises on September 22nd because the answer would always

be “No”. Chartwell’s position was said to be: “You need our permission,

and we’re not giving it.” The responding parties were “all about control”

and cared “nothing about making any good faith assessment”.

69.

The applicant urged me to accept and rely upon the evidence of

Ms. Brebner regarding the necessity of Representatives’ physical

presence and noted that the responding parties led no evidence contrary

to hers as to their exclusionary policy's being detrimental to the Union.

70.

Counsel for the applicant noted that Chartwell has a committee

responsible for dealing with matters related to COVID-19 and in their

response to the application the responding parties had asserted that

“access . . . is determined by the Employer based upon the operational

requirements of the respective homes”; however, the Union reminded

me that Mr. McCarthy could not recall circumstances of the Union’s

requests being given any consideration, even in the summer of 2021

when entertainers were being admitted to the retirement homes.

Subsequently, doors were open to fully vaccinated visitors; entertainers

performed indoors and outdoors; residents left for outings; and

prospective residents toured the facilities. The most telling of the

responding parties’ behaviours was the decision to permit access to

Georgian Traditions to conduct a ratification vote on its first renewal

collective agreement. The proffered rationale — that “it could be done

safely”, people would be required “to adhere to safety protocols”, and

the community was not in Level 3 or Level 4 — was said to be in keeping

with what the Union sought generally. The applicant argued that the

circumstances were consistent with “all we asked” and that Chartwell’s

explanation precluded a finding of justification for the blanket denials

that otherwise confronted the Union and its Representatives.

71.

The Union focused on the testimony of Ms. Shipperly and her

attempts to support the objections to stewards attending on Ms. Yung

in the Gibson Chartwell parking lot with her references to paid breaks

- 42 -

and possible difficulties contacting them if they were needed, and

comparing their circumstances with those of employees smoking outside

on their breaks. Her support for the blanket denial of the Union

Representatives’ opportunity to interact with stewards and members on

site was said to reflect the responding parties’ governing attitude: “Do

it somewhere else, because they’re supposed to be working; when

you’re here, you’re on our time”.

72.

The Union urged me to find that Ms. Vieira was fundamentally

unreliable in her testimony as evidenced by her inability to remember

when entertainers started coming to the home and whether they and

others were checked for their vaccination status. She was accused of

tailoring her evidence as demonstrated by her charging employees with

a rules violation by simply taking a photograph of a schedule recording

the presence of entertainers. This evidence was given as a violation of

policy is to protect confidential information. Accordingly, the Union

proposed that the evidence of Mr. Mehendiran was to be preferred to

that of Ms. Vieira.

73.

The Union submitted the following in support of its positions:

McDonnell Douglas Canada Limited, 1988 3701 (ON LRB)

(“McDonnell Douglas”); CFTO-TV Limited, 95 CLLC 220-045 (CLRB)

(“CFTO-TV”); Vale Inco Ltd., 204 C.L.R.B.R. (2d) 94 (OLRB) (“Vale

Inco”); Outdoor Outfits Ltd., [2020] O.L.A.A. No. 40 (Knopf) (“Outdoor

Outfits”); Cadillac Fairview Corp. Ltd. v. R.W.D.S.W.U., 71 O.R. (2d)

206 (ONCA) (“Cadillac Fairview”); and Canada Post Corp. 69 di 91, CLRB

Decision No. 620 (CLRB) (“Canada Post”).

74.

The Union argued that Chartwell had missed the point about

what unions do. Its Representatives could not be reduced to calls,

videoconference meetings and the like. The Union submitted that the

impact of Chartwell’s exclusionary policy was such that the responding

parties were required to demonstrate “compelling and justifiable

business reasons” for their interference with the Union’s rights and that

such restrictions might be permitted only if the employers had strong

business justification for the imposition of the policy.

75.

The Union referred to the guidance documents for long-term

care homes and retirement homes issued by Ontario under Directive #3.

The documents included definitions to differentiate “essential visitors”

from “general visitors”, the latter being identified as non-essential

- 43 -

visitors “visiting to provide non-essential services related to either the

operations of the home or a particular resident or group of residents”.

The guidance document for long-term care homes separated general

visitors into two “broad categories”: visitors for social reasons and

“visitors providing non-essential services” which were then stated to

include but not be limited to listed activities, including “touring the home

to inform decisions regarding application for admission”.

76.

The Union referred to the guiding principle of “flexibility”

stipulated in the Retirement Homes Policy to Implement Directive #3 as

follows:

The physical characteristics/infrastructure of the home, its

staffing availability, whether the home is in an outbreak or

in an area of widespread community transmission, and the

current status of the home with respect to infection

prevention and control (IPAC) including personal protective

equipment (PPE) are all variables to consider when

administering home-specific policies for visiting, absences,

and activities.

The Union contended that the responding parties failed to adopt that

required flexibility in considering and deciding on the issues of its

Representatives having access to the homes when restrictions limiting

attendances to essential visitors were lifted.

77.

Counsel for the applicant also raised as an issue the residents’

going on outings to places such as Dollarama where the responding

parties and their staff had no control over the other people residents

would encounter. That Chartwell would nevertheless refuse to give any

consideration to the individual circumstances of Representatives was

argued to reflect a “patently unreasonable application of their

discretion”.

78.

Cadillac Fairview, supra, was cited for the discussion of property

rights by the Court of Appeal and the proposition that Chartwell had no

absolute, unfettered control over access to its properties.

79.

Counsel referred to the decision of the Canada Labour Relations

Board in Canada Post, supra, which dealt with the employer’s argument

that employees who were engaging in the conduct to which it objected

during paid meal and coffee breaks. That elicited the Canada Board’s

- 44 -

remonstrance: “These are hardly justifiable business reasons for

prohibiting lawful activities under the Code” and then: “Should an

employer be permitted to interfere in such activities simply because it

does not like what the union and the members are talking about? We

think not!”

80.

The Union concluded its submissions with the proposition that

Chartwell’s argument is circular in that it was advising Union

Representatives that they were not entitled to be on its property and

the reason for that was “because Chartwell said so”. Rather, the Union

contended, it was known that the responding parties’ premises could be

used — and used safely — as they were for the ratification vote at

Georgian Traditions.

81.

Union Representatives’ attending on members and represented

employees was said to constitute a core function of the Union. Counsel

reiterated that the Union’s requests were not for attendances during an

outbreak at a home or for the use of a tiny room, inappropriate for the

intended purpose. In any event, the Union asserted, the responding

parties were simply not permitted “to just say no”.

Submissions of the Responding Parties

82.

Chartwell submitted that there was no basis for a finding of any

violation of sections 70 or 76. The decision to pause visits did not

constitute an unfair labour practice. Rather, it was taken for legitimate

reasons — to reduce interactions and the exposure of workers and

residents to COVID-19.

83.

Chartwell noted that the application was filed one and one-half

years after it took steps in response to the pandemic. It suggested that

the red herrings were embodied in the complaint that the Union

Representatives’ not entering the homes was important and relevant.

The responding parties argued that, as a request for access had been

made in respect of only nine of the homes referred to by the Union and

as no issue had been raised at the others, those remaining homes were

beyond the reach of any order that the Board might make.

84.

In addition to noting the age of residents and the likelihood that

older persons would be more susceptible to the virus, Chartwell

emphasized that its facilities were the homes of the people who live

- 45 -

there. In that respect, the responding parties submitted that it was

necessary to have regard for the direction set out in section 1 of the

Long-Term Care Homes Act, 2007, S.O. 2007, c. 8:

Home: the fundamental principle

1 The fundamental principle to be applied in the interpretation

of this Act and anything required or permitted under this Act is

that a long-term care home is primarily the home of its

residents and is to be operated so that it is a place where they

may live with dignity and in security, safety and comfort and

have their physical, psychological, social, spiritual and cultural

needs adequately met.

85.

Directive #3 maintained as a paramount guiding principle the

well-being of residents of these homes. In that context, the CIC had

made decisions to pause visits and those decisions were applied to all

unions as well as all Chartwell human resource staff responsible for

these homes.

86.

Counsel for the responding parties reviewed the evidence,

remarking that Ms. Brebner served as Representative to only two

Chartwell homes, had made no requests to attend in person, and had

expressed herself to be uncomfortable with the prospect of holding

membership meetings on site. She was aware that staff were being

“cohorted” and that “walking through the halls will not happen”. Ms.

Brebner appreciated that “COVID changed how everything was done”.

Representatives being directed by the Union to work from home was not

a red herring and their “business continued virtually”. The Union

continued to have access to its members, bargaining continued,

settlements were achieved, and ratification votes were held.

87.

The responding parties noted that the Union never had

unfettered access to their facilities. Rather, Representatives had always

been obliged to obtain permission to enter the homes to meet with

members, stewards and management representatives.

88.

Counsel commented that Ms. Yung was a new Representative

who came to the position with no experience in long-term care labour

relations. While Ms. Yung failed to apprise herself of the rules applicable

to the homes she serviced, there had been no evidence of her being

unable to do anything that she sought to do.

- 46 -

89.

Chartwell did tell Ms. Yung that it was not permitting union

representatives to attend on site. Nevertheless, having attended a

virtual labour management meeting on September 21st and being well

aware of Chartwell’s position, the next day Ms. Yung made

arrangements to meet on site at Gibson Retirement Home. The evidence

was that the general manager was unaware of Ms. Yung’s June

attendance and expressly denied having been apprised by Mr.

Mehendiran on September 22nd that Ms. Yung was meeting with him

and a colleague in the parking lot.

90.

Ms. Yung was not only aware that she was not allowed to have

meetings on the premises, her calling employees at work — in this case

to advise of her arrival — put the employees in contravention of

Chartwell’s rules against the use of telephones.

91.

Chartwell relied on Ms. Shipperly’s evidence that Ms. Yung had

been informed several times that she was not allowed on the property

and that the responding parties’ injunction was related to COVID-19.

Chartwell noted that Ms. Yung was the only union representative who

went onto Chartwell property after being told that she was not permitted

to do so and it was concerned that, as testified to by Ms. Shipperly, it

might “receive a citation from an inspector” for failing to adhere to

protocols imposed by the provincial directives and otherwise. Ms.

Aggarawal had testified that inspectors had issued citations associated

with the use of Chartwell parking lots. Moreover, it had been noted, that

there was no information provided by Ms. Yung to Chartwell after the

September 22nd event that the stewards with whom she met were in

fact following protocols in place and mandated for the home.

92.

Ms. Vieira had testified about concerns regarding the use of the

parking lot, noting that it presented “a challenge”, particularly as family

members of residents had been cautioned about the use of the parking

lot. As for the event of September 22, 2021, she pointed out in her

evidence that there was a mechanism established for deliveries.

93.

Counsel for Chartwell submitted there was no evidence of any

intimidation of representatives or employees by Chartwell. Similarly,

there was no evidence of Chartwell’s prohibiting representatives or its

employees “getting union business done”. Indeed, the responding

parties noted, the Union accepted the appropriateness of

- 47 -

videoconference or virtual meetings until entertainers were first

permitted on the premises pursuant to changes in Directive #3.

94.

The re-introduction of entertainers was identified as an

important contribution to the well-being of residents. Similarly, the

attendance of contractors to perform maintenance and the like was said

to have been potentially crucial to the safe and continuing operation of

the homes. The responding parties took the position that tours by

potential residents did nothing to undermine the Union.

95.

Chartwell contended that the Union’s Representatives had

made no material responses to its advice regarding their inability to

attend on site. There were no grievances filed and no explanations

offered for why the Representatives were concerned — if they were.

96.

Chartwell had permitted an in-person ratification meeting for

the first renewal collective agreement for Georgian Traditions and did

so based on the Union’s representations that, given the number of

changes that were introduced, its in-person presentation would be more

effective than if the meeting were conducted by videoconference. In

other instances, Chartwell argued, Union Representatives did not make

the case for their coming on site as part of meeting the Union’s

obligations to members and represented employees. Rather, the Union

was carrying on with its functions and did not complain to Chartwell

about the application of its policy.

97.

Counsel for Chartwell noted that the collective agreement

provisions for the various homes required the Union to obtain permission

for attendances on site. It was not unreasonable of Chartwell to limit

entry onto its property in light of provincial directives, particularly as all

the things the Union was seeking to do were being done virtually. Quite

properly, it was submitted, Chartwell was prioritizing the health and

well-being of the residents.

98.

As for the cases relied upon by the Union, counsel noted that

none dealt with a pandemic, none dealt with long-term care homes,

none involved health care, and, with one exception, all predated our

becoming accustomed to proceeding with meetings and hearings

virtually with video conferencing.

- 48 -

99.

Chartwell referred to the following decisions: Humber River

Hospital and National Organized Workers Union, 2021 CarswellOnt

12199 (Ont. Arb.) (Johnston) (“Humber River”); Labourers International

Union of North America v. Turnkey Site Solutions, 2019 4192

(ON LRB) (“Turnkey”); United Brotherhood of Carpenters and Joiners of

America, Local 93 v. Les Foundations Brisson Inc., 2013 52878

(ON LRB) (“Foundations Brisson”); CAW Canada and The Millcroft Inn

Limited, 2000 12208 (ON LRB) (“Millcroft Inn”); Ontario Nurses’

Association v. Eatonville/Henley Place Limited, 2020 ONSC 2467, 2020

Carswell 5532 (“Eatonville/Henley Place”); Toronto Transit Commission

and Amalgamated Transit Union, Local 113, 2020 28646 (ON LA)

(Goodfellow) (“Toronto Transit Commission”); and City of Toronto and

Canadian Union of Public Employees, Local 79, 2020 68802 (ON

LA) (Nairn) (“City of Toronto”).

100.

Counsel for Chartwell submitted that Humber River, supra,

deals appropriately with the business rationale and the balancing of

interests that ought to apply in the analysis here. In that case, Arbitrator

Johnston dealt with a policy grievance by which the union sought a

direction that two of its staff members be provided access to the union

office at one of Humber River’s hospitals. Access was restricted as a

result of a policy introduced in March 2020 and based on the Ministry of

Health directives meant to contain the spread of the COVID-19 virus by

restricting visitor access to hospitals.

101.

As counsel for the responding parties noted, Arbitrator Johnston

addressed the “precautionary principle” recognized as follows by the

Superior Court of Justice in Eatonville/Henley Place, supra:

77. The important OHSA provision for the purposes of art.

6.06 is s. 25(2)(h), which mandates employers to "take

every precaution reasonable" for the protection of the

worker. Thus, the collective agreement incorporates what is

often referred to as the "precautionary principle".

78. An important recommendation of the Commission of

Inquiry chaired by Justice Archie Campbell in the wake of

the SARS outbreak of 2003 -- an outbreak of a virus related

to COVID-19 -- is that the precautionary principle is to be

put into action in order to prevent unnecessary illness and

death. As explained by Justice Campbell, this principle

applies where health and safety are threatened even if it

- 49 -

cannot be established with scientific certainty that

[page275] there is a cause and effect relationship between

the activity and the harm. The entire point is to take

precautions against the as yet unknown. Thus, s. 77.7 of

the HPPA requires the CMOH to consider the precautionary

principle in issuing Directives in the event of an outbreak of

infectious disease.

102.

Chartwell emphasized its obligation to “take all reasonable

precautions”, highlighting the passages in Eatonville/Henley Place relied

upon in Humber River, and adding the penultimate paragraph in the

Eatonville/Henley Place judgment granting ONA’s injunction application:

94. Under the circumstances, there is no prejudice to the

respondents which outweighs the irreparable harms that

could ensue to the Applicants. Where the lives of nurses and

patients are placed at risk, the balance of convenience

favours those measures that give primacy to the health and

safety of medical personnel and those that they treat. As the

British Columbia Supreme Court has held in the context of

granting an injunction where failure to abide by fire safety

rules could place health and safety at risk, "the risk of

catastrophic injury and loss of life is too great to

ignore": Maple Ridge (City) v. Scott, [2019] B.C.J. No.

177, 2019 BCSC 157, at para. 48.

103.

Chartwell referred to Turnkey, supra, for the Board’s comments

on establishing a violation of section 76 of the Act and highlighted the

following statement in Foundations Brisson, supra, regarding the

application of the section:

57. It is not enough for a party to characterize conduct as

“intimidating” or “coercive”: it must plead facts that would

permit the Board to reach the conclusion that a reasonable

employee possessed of critical faculties would have felt

intimidated or coerced into supporting (or not supporting as

the case may be) a union organizing campaign.

104.

Chartwell also relied on comments made in the awards in

Toronto Transit Commission, supra, and City of Toronto, supra,

decisions rendered early in the pandemic, in support of its concluding

submission that the issues before the Board arise in the context of

legitimate and serious health concerns of overwhelming significance in

- 50 -

that all of these homes, long-term care and retirement, are occupied by

“medically-at-risk elderly people”.

105.

The responding parties contended that “going forward” the

Union should “follow the collective agreement and grieve” if it was

concerned with Chartwell’s rationale for denying its Representatives

access. In any event, Chartwell urged me to find that no unfair labour

practice arose in these circumstances

The Union’s Reply Submissions

106.

In commenting on the evidence, counsel for the Union

reiterated his submission that I ought to accept the evidence of Mr.

Mehendiran over the denial by Ms. Vieira and find that she had

authorized the meeting in the parking lot on September 22, 2021. The

Union also contended that Ms. Brebner's feeling uncomfortable or being

uncomfortable on one occasion was no answer to the application with

respect to Chartwell’s overall approach to these issues.

107.

Moreover, counsel noted, even though the responding parties

had now heard in full the rationale for the Union’s position, nothing had

changed — there was nothing to indicate that the Representatives were

to be allowed entry to their premises.

108.

As for the submissions regarding section 76, the Union noted

that, in the course of exercising rights protected by the Act, its

representatives had been threatened by Chartwell managers who had

indicated that they would call the police in response to any future

attendance such as that by Ms. Yung in the parking lot at Chartwell

Gibson.

109.

Counsel for the Union distinguished Humber River in part on the

basis that there was no evidence there that, unlike Chartwell’s practices

with respect to outings and entertainers, the responding party hospital

was willingly allowing non-essential visitors onto its property or into its

buildings.

110.

Counsel for the Union argued that the Board ought to focus on

Arbitrator Johnston's comments as follows:

- 51 -

73. I agree with the Union that there is an important

representational interest at stake here in denying it access

the workplace. Something is intrinsically lost when union

staff representatives no longer have opportunity the come

onto the property, walk the halls, and speak to its

members. Often it is during these informal discussions that

the Union is made aware of issues or conflicts in the

workplace and can take steps to address these issues before

they turn into disciplinary matters or require the filing of a

formal grievance.

74. Developing these types of relationships is the glue that

keeps unions strong and relevant in the eyes of their

members. The same opportunity does not present itself in

a virtual world. It is difficult for the union to make its

presence known if it does not have the opportunity to speak

with members one on one.

75. That is not to say that the Union has no representation

in the workplace. It still has its local president and a network

of 34 union stewards across the organization that has access

to all three hospital sites. In many ways, the local

representatives are the eyes and ears of the union at the

shop floor level. However, when a member engages with

the union, the word of the local steward or even the local

president does not carry the same weight as that of a

seasoned staff representative. There is nothing stopping a

steward or the local president from putting a member

directly in contact with union staff, but that direct one on

one contact with the staff representative is still lost.

76. The fact that there is a local president and union

stewards on the premises does not diminish the Union’s right

to have a staff presence in the workplace. The case law

clearly recognizes the right for staff representatives to come

onto an employer’s premises unless that right is expressly

restricted through the language of the collective

agreement.

77. I agree that there is no evidence to suggest that the

Union has been impeded, in any way, in its ability to carry

out its core duties in representing its members in the

workplace. As I have heard, grievance meetings, labour-

management meetings and collective bargaining have all

continued through the pandemic with the use of

- 52 -

technology. However, the role of the union should not be

relegated to simply attending grievance and labour-

management

meetings

and

negotiating

collective

agreements. To be effective, unions need to connect with

their members, foster activism, and promote labour relations

beyond the strictures of the collective agreement.

111.

Counsel for the applicant concluded with rhetorical questions

directed to Chartwell: Why can others be let in without evidence of their

vaccination status and the like, and why is it that the Union can be

accommodated in the circumstances of the ratification vote, but not for

other membership meetings? Counsel reiterated that the Union needs

to have a physical presence in order to carry out its mandate.

Analysis and Decision

112.

Given the surface similarity in the circumstances here and

considered by Arbitrator Johnston in Humber River, there is a temptation

to adopt his analysis and approach as suggested by the responding

parties. That, however, is inappropriate for several reasons.

113.

First, Humber River is an arbitration award in which the

arbitrator was not required to consider and address the application of

sections 70 and 76 of the Act. The arbitrator’s finding that the employer

had not breached the collective agreement would not have answered

the complaints made here.

114.

Secondly, Humber River was decided with respect to regulations

or directives that applied to hospitals rather than homes such as those

run by Chartwell. Here, the parties are concerned with the provincial

authorities’ specific direction applicable to the long-term care homes and

retirement homes. The strictures relied upon in support of the hospital’s

position before Arbitrator Johnston simply did not obtain in the Chartwell

facilities after the July 2021 revision of Directive #3.

115.

On the record presented by the report of his decision, Arbitrator

Johnston heard evidence in April and early July 2021 prior to the revision

of Directive #3 on July 14, 2021. Even if the arbitrator had been dealing

with retirement homes, the evidence before him would have been

completed before Directive #3 had been recast as it was. The award in

Humber River makes it clear that the alleviation of restrictions applicable

- 53 -

to Chartwell’s facilities either was not instituted for hospitals or was

introduced after the completion of evidence in that matter. Unlike the

strict circumstances referred to in the arbitrator’s award, the responding

parties were authorized in July 2021 to allow entertainers and

prospective residents to enter their facilities and to provide residents

with opportunities for outings such as the trips to Dollarama and for

apple picking. All of that distinguishes the circumstances presented to

Arbitrator Johnston dealing with hospital regulations and the avoidance

of COVID in those facilities.

Other Preliminary Observations

116.

A number of points Chartwell made in evidence and its

submissions — some of which it had communicated to the Union as

matters developed in the several months preceding the filing of this

application — can be disposed of at the outset.

117.

First, the Union’s foregoing presumed opportunities to grieve

Chartwell’s exclusionary practice and rulings did not preclude or bring

into question its bringing this application. Different considerations arise

here.

118.

I have attached no significance to the absence of grievances or

of more pointed complaints by Union Representatives. Having regard for

the position adopted and maintained by Chartwell, complaints would

have been futile. As counsel for the Union noted, Chartwell has now

heard from the Union quite fully and has maintained its position

regarding the propriety or necessity of its excluding Union

Representatives. Grievances, if brought, might have resulted in the

litigation of the responding parties’ approach on KVP principles;

however, grievances would not have exposed issues that arise under

sections 70 and 76.

119.

Similarly, in my view, the Union cannot be faulted for failing to

complain more than it did about the exclusionary policy prior to the

introduction of entertainers at Chartwell homes. If anything, its

forbearance demonstrated an appreciation of the limitations imposed by

the provincial directives and is of no probative consequence beyond

establishing the Union’s implicit acceptance of the policy as appropriate

in the circumstances that obtained prior to the revision of Directive #3

in July 2021.

- 54 -

120.

Moreover, there was no suggestion made by the Union that its

Representatives ought not to be held to the same standards as

entertainers attending at the sites even though Union Representatives

would attend to meet with management and employees, and not to

engage with or even to encounter residents.

121.

The repeated stipulation to Union Representatives and in

testimony that Chartwell did not object to Union Representatives and

bargaining unit employees meeting off-site, online, or at the Union's

office was of no utility to the Union and of no relevance in this

proceeding. There was no basis for any suggestion that Chartwell had

any authority to interfere in any way with the Union’s interaction with

bargaining unit employees otherwise than on its premises.

122.

Chartwell’s witness expressed a concern about employees

meeting with their Union Representative in the parking lot and then

returning to the building in circumstances in which the manager did not

know whether the employees had followed prescribed practices with

respect to masks and sanitizing their hands. I note that the only

bargaining unit participant who testified works as a chef. There was no

indication of the classification or assignments of the other two

employees. Thus, there was no link developed between the session in

the parking lot and any employee’s contact with residents or their being

exposed in any manner. Moreover, Mr. Mehendiran was not asked about

his masking or hand-sanitizing, and testified that the meeting took place

within minutes of the end of his and his colleague’s shifts. The concerns

identified by Ms. Shipperly, like those about paid breaks and the risk of

employees not hearing alarms, appeared to me to be a late developing

rationalization of the responding parties’ objection to Ms. Yung’s

attendance.

123.

Chartwell managers’ characterizing its position as “pausing

access” — a pause that has now extended beyond two years and has

continued unaltered for Union Representatives notwithstanding the

lifting of restrictions on other visitors as well as residents — was not

persuasive. Its witnesses referred to Chartwell’s “restricting access as a

temporary measure”; however, Chartwell identified no criteria for lifting

the blanket exclusion order it applies to Union Representatives. The

“restriction” is a prohibition, a complete elimination of access.

- 55 -

Restrictions and protocols addressing limitations on freedom of

movement and the like are provided for by the provincial directives, but

those have had no relevance to the Union Representatives who have

been wholly excluded with three exceptions tied to ratification meetings.

The conclusion I draw from Chartwell’s communications to the Union

and the position advanced in the hearing is that, as far as the responding

parties are concerned, the exclusion of the Union’s Representatives will

continue until Chartwell is satisfied that the pandemic is over.

124.

While Chartwell invoked section 1 of the Long-Term Care Homes

Act in its submissions, there was nothing in the evidence to suggest that

residents were affected negatively or at all when Chartwell permitted

Union Representatives to attend for membership meetings called to

ratify negotiated settlements and nothing in the evidence to suggest

that residents would be negatively affected if Chartwell permitted Union

Representatives to attend in the homes — under similar restrictions —

to hold membership meetings for reasons other than the ratification of

settlements. The purpose for which a meeting might be held can have

no bearing on its relevance to the responding parties’ adherence to

Directive #3 or the fundamental principle enshrined in the Long-Term

Care Homes Act.

125.

The discrepancy in the evidence of Mr. Mehendiran and Ms.

Vieira as to whether she approved his going out to meet Ms. Yung is of

no material consequence here. The question raised by the application is

whether the policy Chartwell says was offended by Ms. Yung’s

attendance is or was applied contrary to the Act. The disputed consent

might have been material had Mr. Mehendiran been disciplined or had

there been a grievance concerning the application of a collective

agreement provision. Those are not the issues before the Board.

126.

As a final preliminary observation, I do not accept the

proposition that Chartwell and Mr. McCarthy had to be persuaded that

the presentation by the Union Representative of terms of settlement for

the Georgian Traditions renewal agreement would be more effectively

carried out at an in-person membership meeting rather than a meeting

held on a videoconference platform. Having regard for Mr. McCarthy’s

long experience as the Union’s Chief Negotiator, I am satisfied that he

would appreciate the efficacy of an in-person ratification meeting versus

one held on Zoom. Moreover, Chartwell repeatedly counselled Union

Representatives that the responding parties had no objection to the

- 56 -

Union's meeting with bargaining unit employees off site at other

locations, yet there was no direct explanation for Chartwell’s agreeing

that general membership meetings for the purposes of ratification could

be held on Chartwell’s properties rather than at other locations chosen

by the Union. Of course, the likelihood of well-attended meetings was

greater if the ratification meetings were convened at the employees’

workplace and Chartwell had a direct interest in the meetings’

succeeding in producing ratified collective agreements.

Directive #3

127.

Most importantly, in my view, conducting those ratification

meetings on site precluded Chartwell’s holding to an argument that,

under the circumstances that obtained through the second half of 2021

to date, Union Representatives might be barred, interfered with, or

restricted in entering Chartwell facilities as they were not “general

visitors” or otherwise permitted entry under Directive #3 and the

guidance issued by provincial authorities. No one suggested that Union

Representatives were “essential visitors”, but they were visitors or

sought to be visitors. As such, they were permitted entry by Chartwell

in respect of the ratification vote at Georgian Traditions — along with

two others according to Mr. McCarthy’s evidence.

128.

Chartwell cannot be seen to identify Union Representatives as

permissible visitors for the purposes of meeting with employees to

present a memorandum of settlement for ratification and persist in

insisting the same Union Representatives were prevented by Directive

#3 from meeting with the same individuals in the same or like locations

under the same circumstances for other membership meetings.

129.

The absence of express prohibitions on a home’s admitting

Union Representatives under the July 14, 2021 iteration of Directive #3

required Chartwell to establish a justification for its position. That could

not be achieved in the absence of evidence that the responding parties

had given consideration to permitting the entry of Union

Representatives for any other membership meetings to be held in strict

compliance with applicable provincial protocols.

130.

While there was no evidence detailing how the three in-person

ratification meetings were conducted, their being held demonstrated

that the responding parties have the ability conform to all of their

- 57 -

obligations without issuing a blanket denial as Chartwell has done for an

extended period. Chartwell was satisfied that the ratification sessions

could be conducted safely, and would not expose the responding parties

to a citation for breaching Directive #3. For its part, the Union must

have assured Chartwell that it would conduct the meeting in accordance

with the established protocols — masking, social distancing, maximum

number of individuals in the meeting and the like. There is nothing in

the material before me to indicate any unwillingness on the part of the

Union to adhere to all restrictions observed in the ratification meetings

at all others they might seek to hold on Chartwell properties.

131.

Directive #3 and the guidance issued under it specify that each

home was required to have a visitor policy complying with minimum

requirements set out in those publications. The guidance for long-term

care homes included this provision: “All homes are required to establish

and implement a visitor policy that complies with this document and

Directive #3 (as amended from time to time).” It also stipulated:

“Homes must ensure that all visitors have access to the home’s visitor

policy and understand the rules regarding physical distancing and

masking at the outset of their visit.” The guidance under Directive #3

for retirement homes specified “minimum requirements” for the

acceptance of visitors, directing that the home “must include sharing an

information package with visitors on IPAC, masking, physical distancing

. . . and other health and safety procedures such as limiting movement

around the home, if applicable, and ensuring visitors’ agreement to

comply with visiting procedures”.

132.

Given that, by its actions, Chartwell has qualified the Union’s

Representatives as permissible visitors, the provincial directives

required that they receive Chartwell’s visitors’ policy in connection with

any attendance. A policy that conformed to the provisions in the

guidance would have made clear to a visiting Representative the

requirements that would obtain, including the necessity of controlling

the size of a gathering so as to preserve physical distancing and comply

with limits on the number of persons that might participate in a meeting.

It follows that, after July 14, 2021, a blanket exclusion — preventing a

Union Representative from being on a home’s grounds or entering the

building — was neither required nor supported by Directive #3 and the

guidance issued under it.

- 58 -

133.

As noted previously, I do not accept that Chartwell required or

relied on the Union to persuade it of the benefit of Representatives’

being allowed access to its sites to hold ratification meetings. Moreover,

the purpose for which a membership meeting is held — as distinct from

the circumstances and restrictions under which it is convened — can

have no bearing on the home’s adherence to COVID protocols and the

principles set out in section 1 of the Long-Term Care Homes Act.

Furthermore, it is significant that the repeated response to the Union

Representatives was that Chartwell was not permitting access and not

that Chartwell was not permitting access unless it could be convinced

that access should be allowed. None of the responding parties’ witnesses

purported to have decided independently that Union Representatives

were not to be allowed on site and none of them suggested that the

Union had ever been invited to “make its case” for access. Submissions

were not elicited. The responding parties made clear in this proceeding

that access was denied unless Chartwell saw a reason to grant it —

regardless of circumstances.

134.

In my view, Chartwell’s policy and practice to deny access to

Union Representatives otherwise than for ratification meetings — rather

than presenting the visitors’ policy with which they were to comply —

makes the Union’s case. As the responding parties demonstrated that

they were prepared to accept that Directive #3 and the relevant

guidance documents permitted access for the ratification meetings, one

must conclude that Chartwell had another motive for refusing

Representatives admission at any other time and for any other purpose.

In the absence of any exculpatory explanation that bore scrutiny, I

conclude that there was no business or health and safety justification

for Chartwell’s edict and its motive, in whole or in part, must have been

informed by an intention to interfere with the administration of the Union

and its representation of bargaining unit employees.

135.

Chartwell could have admitted Union Representatives to

conduct other membership meetings just as safely as the ratification

meetings. It could permit meetings, specifying all of the restrictions the

Union would be required to conform to in keeping with the guidance

under Directive #3, including the stipulation of the available room, the

limit on the number of persons permitted in that room for social

distancing purposes, the restriction of the meeting and the Union

Representative to that room, as well as masking, hand-sanitizing and

- 59 -

the like. There was no viable excuse offered for Chartwell’s failure to do

so.

136.

If complying with the provincial guidance and the home’s

conforming visitors’ policy made the holding of a membership meeting

at the location unsatisfactory to the Union or if the available space would

not allow for a sufficiently significant number of members to attend,

then the Union might look elsewhere. If the Union decided not to have

the meeting at that location, Chartwell might assert that it had done its

part in complying with its obligations under the Act as well as in respect

of COVID-19 protocols and Directive #3. But its blanket “No” to the

Union is neither an effective substitute nor an acceptable substitute.

137.

As the Union noted, Chartwell’s motivation is exposed by its

flexibility with respect to the in-person ratification meetings held with

Union Representatives and other actions permitted under Directive #3.

The evidence included email messages advising Union Representatives

that Chartwell was not admitting Representatives “at this time”. But the

responding parties did admit Representatives when it suited them and

their commercial interests in achieving ratification of negotiated

collective agreements.

138.

Similarly, as doing so was very much in the responding parties’

commercial interests, visitors were welcomed to tour facilities with a

view to increasing the occupancy rate. Ms. Aggarwal’s evidence was that

she had reiterated in a labour-management meeting for Scarlett Heights

that “tours were also necessary in order to fill vacant suites in the home”

where seventy-five of two hundred suites were vacant. Thus, the

responding parties were open in acknowledging that they were prepared

to have strangers visit their premises when it came to a matter of

commercial value to Chartwell. And to do so, not merely to meet in a

specified room, but to enter the area where residents actually lived to

view suites on offer.

139.

The contrast is quite stark. It is of no consequence that the

provincial guidance allowed general visitors attending with a view to

choosing a retirement home. There is nothing in those materials to

exclude Union Representatives; however, the responding parties were

prepared to admit Union Representatives only when doing so aligned

with Chartwell’s commercial interests. The responding parties are not to

be criticized in either circumstance. The successful conclusion of

- 60 -

negotiations and efforts to secure residents necessary to the viability of

the enterprise are desirable ends. The facts, however, underscore the

absence of a justification for the ban on all other visits by Union

Representatives of no obvious benefit to the responding parties.

Access Required — Videoconferences do not Suffice

140.

I also take the view that it is not an answer to the application

that videoconference sessions might be a satisfactory means of the

communicating with bargaining unit employees. Videoconferences

should be an effective mechanism for Representatives’ communicating

with Chartwell for labour-management and grievance meetings, and for

holding meetings with stewards. Chartwell cannot be prevented from

directing its management personnel to stay out of homes where they do

not work and that alone would preclude the Union’s attempting to insist

on holding labour-management and grievance meetings at the homes.

141.

I am satisfied, however, that videoconference meetings fall

short of satisfying the needs of the Union when Representatives wish to

meet with the constituents, the bargaining unit employees for and to

whom each Representative is responsible. Regardless of the other

means by which Representatives might communicate with bargaining

unit employees and by which those bargaining unit employees might

obtain information and advice from the Union, its Resource Centre,

Representatives, and stewards, nothing in the evidence rebutted the

fundamental points made by Ms. Brebner as to the significance of her

presence in face-to-face meetings with members.

142.

In that context she and the Union enjoyed substantial support

in the jurisprudence.

143.

Arbitrator Johnston effectively confirmed Ms. Brebner’s

evidence in his observations at paragraphs 73 through 77 of Humber

River set out above. Having noted that there was nothing in the

collective agreement “which expressly expands or limits the Union’s

right to access the property”,⁷Arbitrator Johnston continued as follows:

79. . . . The starting point . . . is the seminal decision of

Arbitrator Harry Arthurs in Toronto Dress & Sportswear

⁷At para. 78.

- 61 -

Manufacturers’ Guild Inc. and ILGWU Locals 72, 192, 199,

(1979) 24 L.A.C. (2d) 179. At page 181 of the decision,

Professor Arthur's opined on the reasons why unions seek a

presence in the workplace,

The occasional presence of a representative on the shop

floor enables the union to “show the flag”, to remind

employees of the union's support for them, and of the

availability of the union, should its services be needed.

80. With that said, the arbitrator went on to state that the

right to access the shop floor, does not translate into a carte

blanche right to enter the premises “simply to be visible to

its members”. He recognized that any visit to the workplace

will cause interference with the employer’s operations and

that employers would have to accept some level of

disruption. But there must be a balancing of interests.

(Arbitrator Johnston’s emphasis)

144.

Ms. Brebner’s evidence was also supported by the analysis in

CFTO-TV, supra. In that case, the Canada Labour Relations Board dealt

with the employer’s denying NABET’s assigned National Representative

access to its premises. The NABET representative had written to the

employer to describe the intended scope of his attendance, concluding

as follows:

5) I plan to visit all areas to give bargaining unit employees

an opportunity to voice their concerns or complaints about

any and all employment issues

6) I plan to use my visits to CFTO to assist in maintaining

the communications between the Union and all members of

the bargaining unit. As you know because of the vagaries of

many different shifts, many members are unable to attend

Union

meetings.

We

have

always

found

direct

communication more meaningful than bulletin boards.

During my visits I may also solicit and deliver information

both verbally and in writing from and to the employees in

the bargaining unit in connection with the operation and

administration of the Union and the representation of

employees by the Union.⁸

⁸CFTO-TV, supra, at pp. 16-17.

- 62 -

145.

CFTO argued that “the conduct of internal union business is not

a proper ground on which to base the right of access” and that it could

not be found that its refusal interfered with the right to represent

employees: “In the employer's submission, the right to represent does

not give the right of access.”⁹The Canada Board concluded that “the

access requested in this case by NABET is a necessary incident of its

rights protected by section 94(1) of the Code, particularly its rights of

administration”.¹⁰The Canada Board added:

The refusal of the employer to permit access to the union

representative in question had the effect of interfering with

the administration of this trade union and its representation

of the employees. If the interference had been solely with

respect to the representation of the employees, the Board

might well have been content to defer to arbitration pursuant

to section 98(3) based on the premise that an arbitrator or

arbitration board could have dealt with the issues of

representation. However, no arbitrator or arbitration board

could properly deal with the issue of interference in union

administration in question here.¹¹

146.

To that I would add and adopt the following from Outdoor

Outfits, supra, (particularly the concluding quotation from Professor

Arthurs’ decision in Toronto Dress & Sportswear Manufacturers' Guild

Inc.):

43. . . . A union’s responsibilities include much more than

the few clauses that the Employer suggests. A union has the

right and the statutory responsibility to represent its

members in all aspects of the administration, application,

interpretation and alleged violations of a collective

agreement. Where there is a “union representation” clause

allowing access for “union business”, this must mean that

the parties have contracted to allow the union onto the

employer’s premises so that the union can effectively fulfill

its responsibilities to supervise the collective agreement and

to protect the legitimate interests of its members,

see Tupperware Canada, supra, that adopts an earlier

seminal decision that arose from the garment industry, the

very industry wherein these parties are engaged:

⁹Ibid, at p. 21.

¹⁰Ibid, at p. 30. Subsection 94(1) of the Canada Labour Code is the equivalent of section 70 of the Act.

¹¹Ibid, at p. 31.

- 63 -

19 The inclusion of an access clause in a collective

agreement is not unusual. Many collective agreements

provide that certain union officials are entitled to access

to the employer's premises as part of a myriad of other

provisions to ensure that the union is able to effectively

discharge their responsibilities to supervise the

collective agreement and adequately protect the

legitimate interests of their members.

. . . . .

37 In determining what is reasonable it should be noted

that not only does the union have an interest in

"facilitating communication" but the union also has a

legitimate interest in being a visible presence:

The occasional presence of a representative on the

shop floor enables the union to "show the flag", to

remind employees of the union's support for them,

and of the availability of the union, should its

services be needed. And finally ... employees may

be able to approach a union representative on the

shop floor more easily and confidently than they

might do if they were sent to the room designated

for the union representative's use as a result of a

specific request to the employer.

(Re Toronto Dress & Sportswear Manufacturers'

Guild Inc. and I.L.G.W.U., Locals 72, 192 &

199 (1979), 1979 3999 (ON LA), 24 L.A.C.

(2d) 179 (Arthurs) at p. 181.)

147.

Rather than accommodate those interests, the responding

parties have barred the Representatives in circumstances that invited

the application of the analyses in McDonnell Douglas, supra, and Vale

Inco, supra.

148.

In McDonnell Douglas, the Board addressed the employer’s

refusal to deal with the president of CAW Local 1967. He had been

discharged prior to his election. The Board found that the employer had

violated what is now section 70 by its refusal to recognize and deal with

the individual in his capacity as president of the local, holding as follows:

- 64 -

18. There can be little doubt that the respondent’s conduct

amounts to a significant interference in the administration of

the complainant. Aside from the fact that the latter's duly

elected President has been prevented from or impeded in the

carrying out of his duties, we also accept that such conduct

may have more subtle ramifications, including undermining

both the complainant and this particular President in the

eyes of employees and having an impact on subsequent

elections. Indeed, it is unnecessary to belabour this point as

the respondent did not suggest otherwise.

149.

In Vale Inco, the employer had prohibited a United Steelworkers

Local 6500 Vice-President, Patrick Venoit, from attending on company

property as a result of his having been discharged for alleged

misconduct during the almost year-long 2009-2010 strike. After the

conclusion of the strike, the employer had dealt with Mr. Venoit in

connection with grievances by telephone, email, and meetings at the

union hall; however, he had been excluded from a series of meetings on

significant post-strike matters because of the prohibition against his

attending on company property as a discharged former employee —

notwithstanding that the discharge was to be arbitrated.

150.

The Board quoted paragraph 18 from McDonnell Douglas,

adding emphasis to the references to “subtle ramifications” and the

“undermining” of the complaining union and its President, and then

continued as follows:

47. Here, in my view, the ramifications are not subtle at

all. There has been a long and bitter strike. The Union has

selected a long-time union activist and the immediately

preceding Vice President (and Chair of the Grievance

Committee) (albeit one earlier discharged during the strike

and banned from Company property) to replace the recently

promoted Vice President in accordance with the Union

constitution. This case is not about the merits of that

discharge – no one is asking that Veinot be returned to the

employ of Vale Inco in these proceedings. Rather, contrary

to how previous Union Vice Presidents have been treated and

allowed to perform their duties before, Vale Inco has insisted

that this Union Vice President will not be allowed on its

property. I think the message Vale Inco has sought to

communicate is cold and hard (regardless of its precise

motivations) and I conclude that there has been substantial

- 65 -

interference both in the administration of the Union and its

representation of employees (or in the words of the Canada

Labour Relations Board that have “the effect of undercutting

or weakening the union”).

151.

Nothing in this decision is to be taken to suggest that Union

Representatives have any greater rights now than they did before the

pandemic struck. To the contrary, the current circumstances are such

that several aspects of the justification given for Representatives’

attending on site simply will not be available under COVID and the

provincial directions. Contrary to the evidence of Ms. Brebner, the

comments of the NABET National Representative in CFTO-TV, and some

of the observations in Humber River, the COVID protocols are such that

Union Representatives cannot expect to be free to “walk the halls” with

a view to encountering as many bargaining unit employees as possible.

Similarly, if meetings were held with capacity limits prescribed by the

province or local authorities or simply dictated as the product of room

size and physical distancing obligations, it would not be open to

bargaining unit employees to join meetings on a whim — if the allotted

spaces were insufficient, they would not be properly admitted.

152.

In the absence of any lawful basis for Chartwell’s denying Union

Representatives access to the responding parties’ sites, the visitors’

policy they are directed to have under Directive #3 is to apply to Union

Representatives and, together with the prescriptions in section 70 of the

Act, preclude Chartwell’s blanket denial of their access. The messages

repeated in emails from Chartwell managers that it was not permitting

access “at this time” are not acceptable under section 70 as an answer

to the Union — not at all, not at the time of the application, and certainly

not for the duration of the pandemic — without regard for the state of

controls required and access permitted by the provincial directives.

153.

I find that the behaviours flowing from the policy and

demonstrated or attested to by Chartwell’s managers in the purported

application of an undocumented policy point to a violation. The

responding parties’ evidence about the September 22^ndattendance by

Ms. Yung underscored the contradictory circumstances of Chartwell’s

saying that Union Representatives could not enter its parking lots, but

were to make deliveries by placing items, such as the box of collective

agreement booklets, on a table between the entrance doors to the

home. That is to say, in order to make a delivery the representative

- 66 -

would drive onto the parking lot, park the vehicle, walk to the building,

go through the doors, deposit the box, and then leave. All of that would

take place with the knowledge that Chartwell considers the

Representative’s presence to be prohibited and to constitute a trespass

warranting its summoning the police to deal with a trespasser.

154.

The degree to which Chartwell’s policy of nearly total exclusion

of Union Representatives is unreasonable and unsupported by the

provincial directives might be measured against the instructions in those

directives regarding non-compliant visitors. The guidance for long-term

care homes entered in evidence as part of the Partial Agreed Statement

of Facts sets out the following:

Ending a visit

Homes have the discretion to end the visit by any visitor who

repeatedly fails to adhere to the home’s visitor policy,

provided:

 the home has explained the applicable requirements

to the visitor

 the visitor has the resource is to adhere to the

requirements the visitor has been given sufficient

time to adhere to the requirement(s) . . .

 the visitor has been given sufficient time to adhere to

the requirement(s)

Homes should document where they have ended a visit due

to non-compliance.

Temporarily prohibiting a visitor

Homes have the discretion to temporarily prohibit a visitor

in response to repeated and flagrant non-compliance with

the home's visitor policy. In exercising this discretion, homes

should consider whether the non-compliance:

 can be resolved successfully by explaining and

demonstrating how the visitor can adhere to the

requirements

- 67 -

 is with requirements that align with instruction in

Directive #3 and guidance in this policy

 negatively impacts the health and safety of residents,

staff and other visitors in the home

 is demonstrated continuously by the visitor over

multiple visits

 is by a visitor whose previous visits have been ended

by the home

Any decision to temporarily prohibit a visitor must:

 be made only after all other reasonable efforts to

maintain safety during visits have been exhausted

 stipulate a reasonable length of the prohibition

 clearly identify what requirements the visitor should

meet before visits may be resumed . . .

 be documented by the home (emphasis added)

155.

Accordingly, a single indiscretion or breach of protocol by a

resident’s visitor is not a basis for excluding the visitor, and yet the

responding parties would have the Board find that their blanket

proscription against Union Representatives attending on site — while

complying or being prepared to comply with all protocols — was a

necessary consequence of the provincial directives and not, as the Union

would have it, simply a convenient expedient for its attempt to interfere

with the administration of the Union and its representation of bargaining

unit employees.

156.

As written in the guidance document, those references are not

restricted to persons visiting a resident and demonstrate a far greater

latitude than Ms. Shipperly, Ms. Aggarwal, Ms. Vieira, and Chartwell

contemplate as being available to any Union Representative attending

to meet with stewards in a parking lot maintained by any of the

responding parties. The juxtaposition satisfied me that the

undocumented policy applied by Chartwell is not only not required by

the provincial directives, but is beyond their contemplation and without

their support.

- 68 -

157.

The latest version of Directive #3 in evidence and the guidance

documents contemplated visitors attending the homes; they required

active screening of visitors; a non-essential visitor who fails the active

screening would not be admitted; masking was required; physical

distancing was required; visitor logs were required; asymptomatic

testing was required; and hand hygiene protocols were specified. By

August 2021 homes were advised by the province that there were no

sector-specific limitations on the number of visitors who were permitted

to visit a resident indoors or outdoors at long-term care homes. At a

minimum, residents could receive two general visitors and two

caregivers at the same time. Nevertheless, Chartwell took and defended

the position that a Union Representative could not spend five minutes

in her car, in its parking lot, passing collective agreements through an

open window to stewards, and making their acquaintance.

158.

Moreover, there was a provision in the guidance for retirement

homes that general visitors are permitted regardless of their

immunization status. An entertainer could attend and be in the same

room as residents and staff regardless of the entertainer's immunization

status. The same would apply to a general visitor attending the home

for a tour as a potential resident. But, again, according to Chartwell, in

order to adhere to COVID protocols applicable to retirement homes, a

Union Representative could not be in its parking lot speaking to two or

three stewards through an open car window.

159.

I was not directed to anything in Directive #3 or the guidance

under Directive #3 that would support Chartwell’s taking issue with the

parking lot meeting between the Union’s Representatives and the

employee-stewards. That the responding parties’ witnesses made so

much of the incident while disclosing nothing of a visitors’ policy — other

than Union Representatives were not to attend its sites — spoke

eloquently of a course of conduct that underscores the responding

parties’ violation of the Act.

160.

Regardless of one’s views about Directive #3 and the definitions

it incorporates, it does not bar or exclude Union Representatives from

attending at any of these homes except when general visitors would be

prevented from attending. Moreover, it is absurd, in my view, to argue

that frail elderly residents can go off to Dollarama and virtual apple

picking at the risk of encountering strangers who have no attachment

- 69 -

or responsibilities to them, to their home or to Chartwell, but a Union

Representative sitting in her car in a parking lot, speaking through an

open window to two or three stewards constitutes grounds for objection

and demonstrates the need to have and enforce an all-encompassing

exclusionary policy.

161.

That situation, particularly as exaggerated by Ms. Shipperly in

her evidence, makes it apparent that Chartwell had no interest in

determining means by which it could accommodate the Union or the

needs, real or perceived, of its staff to have access to the Union more

than eighteen months after the effects of the pandemic interrupted on

site meetings. Rather, I accept the suggestion by counsel for the Union

that, in some of these situations and generally, Chartwell has used its

undisclosed visitors’ policy to render the Union and its representatives

as ineffectual as possible, and not for the primary purpose of protecting

staff and residents from COVID.

162.

The Union cannot and does not say that it has an unfettered

right to access the responding parties’ premises when it chooses, as it

chooses, or where it chooses. There is no support for that in any of the

authorities cited or in common sense labour relations practice.

Moreover, in at least some of the collective agreements referred to in

this application the Union and the employer have addressed the issue

and the terms of their agreement would preclude an argument based on

any misguided claim to an unfettered right.

163.

By way of summary, there was no serious suggestion that

videoconferencing is not a useful and appropriate platform for labour-

management meetings, grievance meetings, and meetings between

union representatives and the stewards involved with any home for

which a Representative is responsible. On the evidence, the only

significant aspect of the Union Representative’s role that is thwarted by

COVID and the blanket prohibition enforced by Chartwell is the

Representatives’ access to bargaining unit employees in those homes.

When workable arrangements — such as seem to have been established

for three onsite ratification votes — are not considered but are objected

to as a matter of course, one is inclined to suspect unreasonable

behaviour and to seek the source or basis for it. The result here is to

conclude with the Union that the purported application of Directive #3

was not the foundation for Chartwell’s policy.

- 70 -

164.

Ms. Vieira stated: “The Gibson retirement home is responsible

for what happens on its property and we expect everyone . . . to follow

the rules; Ms. Yung did not.” There was no evidence that Ms. Yung had

been provided with the rules — other than that as a Union

Representative she was not permitted to attend any Chartwell homes.

That rule was the only rule disclosed to the Board by Chartwell and that

rule — without more — pointed directly to an unlawful interference with

the Union’s administration and a violation of section 70.

165.

There was a suggestion that Ms. Yung ought to have

ascertained the rules from her predecessor; however, there was no

evidence that Chartwell had provided him with any rules, and, again,

none were provided to the Board. In any event, had her predecessor

been apprised of Chartwell’s rules, it would follow that he would have

been limited to telling Ms. Yung that Chartwell would not permit her to

be on its premises.

Chartwell’s Property Interests

166.

The repeated reference by Chartwell managers to its private

property rights is answered completely by the undisputed fact that many

of the collective agreements between the parties contain a provision

concerning the Union’s holding meetings on the premises of Chartwell

properties and by the following statements of the Court of Appeal in

Cadillac Fairview, supra, at page 11, referring to section 70, then section

64 of the Act:

In this case, the Board was faced with a clear conflict of

rights -- the private property rights of Cadillac Fairview on

the one hand, and the statutory organizing rights of the

employees on the other. In weighing those conflicting rights

to determine whether s. 64 had been contravened, the

Board, in my opinion, was not obliged as a matter of law to

treat Cadillac Fairview property rights as absolute. Its

responsibility was to apply the general prohibitory language

of s. 64 to the circumstances which formed the basis of the

complaint. In other words, the Board was to decide whether

Cadillac Fairview's conduct in prohibiting all organizing

activity on its property in the circumstances of this case

interfered with the employees' s. 3 rights in such a manner

as to constitute an unfair labour practice. Section 64, as I

noted earlier, is cast in broad terms and the conduct that

- 71 -

might constitute an interference with the formation,

selection or administration of a trade union is unspecified.

Whether a particular form of conduct violates the section has

been left to the judgment, discretion and expertise of the

Board.

The relationship between the conduct proscribed by s. 64

and the rights protected by s. 3 mandates that the Board, in

the exercise of its jurisdiction, resolve conflicts between

property rights and organizational rights. The resolution of

the conflict will turn upon a balancing of those rights with a

view to arriving at a fair accommodation between the

interests sought to be vindicated by the assertion of the

rights. The enforcement of s. 64 must contemplate

incursions into the domain of private property rights and, as

the complaint against Eaton's illustrates, into the domain of

commercial and business rights as well. In my opinion,

notions of absolutism have no place in the determination of

issues arising under a statute designed to further

harmonious labour relations and to foster the freedom of

employees to join a trade union of their choice. In this area

of the law, as in so many others, a balance must be struck

between competing interests which endeavours to recognize

the purposes underlying the interests and seeks to reconcile

them in a manner consistent with the aims of the legislation.

In proceeding as it did, the Board acted within the ambit of

its jurisdiction. It sought to accommodate the right of access

to union communication with the right to exclusive control

and possession of private property. . . . (emphasis added)

167.

Furthermore, at paragraph 81 of Humber River, Arbitrator

Johnston quoted from Arbitrator Surdykowski’s decision in Kennson

Bindery Services Ltd. and UNITE, 2001 CarswellOnt 1004 (Ont. Arb.)¹²

¹²32. There may have been a time when the question of whether a union's right

to access to a workplace includes a right to hold a general meeting with bargaining

unit employees was open to debate. Arguably, business of that nature should not

be conducted in the workplace, and any difficulties that a union encounters in

meeting with employees outside of the workplace is not the employer's problem

and should not involve the employer. On the other hand, it is equally arguable that

it is appropriate for the exclusive bargaining agent to have access to the employees

it represents in the workplace for both general and specific (e.g. grievance)

purposes. However, this debate is closed. It is now well established that subject to

- 72 -

in support of the view that the issue of “whether the union has a right

to be on the employer’s property appears to be well-settled”, and added:

82. It is, therefore well settled that a union has the right to

attend the property unless there are specific restrictions set

out in the agreement which limit that right. Again, that is

not say that the union has a carte blanche right to enter the

property. There must be a balancing of interests between

the union’s rights to attend the workplace versus the

employer’s right to carry out its legitimate business

interests. In this case, those interests involve the hospital’s

obligations with respect to the health and safety of staff and

patients.

168.

When considered in the absence of any plausible explanation

for the responding parties having a legitimate interest in denying Union

Representatives access in order to hold membership meetings under the

same controlled circumstances that allowed Chartwell to agree to the

holding of three ratification meetings on site, the assertion of private

property rights and unsubstantiated business interests are of little

relevance to the analysis and afford the responding parties no shield

against the application.

Balancing of Interests and the Precautionary Principle

169.

Counsel for the responding parties stressed the need to apply

the “precautionary principle” and emphasized Chartwell’s obligation to

“take all reasonable precautions” in the context of legitimate and serious

health concerns of overwhelming significance in that all of its long-term

care and retirement homes are occupied by “medically-at-risk elderly

people”.

170.

Having written of the “balancing of interests between the

union’s rights to attend the workplace versus the employer’s right to

carry out its legitimate business interests”, Arbitrator Johnston quoted

the Court’s comments in Eatonville/Henley Place in the following

context:

an employer's legitimate business concerns, a union is entitled to meet with

employees in the workplace, and that it is unreasonable for an employer to refuse

the union access unless it is entitled to do so under the collective agreement or it

otherwise has a legitimate basis for doing so.

- 73 -

84. I acknowledge that what the Union is seeking in this

case is modest. However, I note that union office at the

Wilson Avenue site is not exclusively NOWU’s office but is

shared by all of the hospital’s unions. The outdoor space in

the piazza appears to be very small and has the potential to

be crowded given the number of staff at the Wilson Avenue

site. The risks associated with transmitting the virus

(however small) must be measured against the potential

consequences for the spread of the virus in an acute care

hospital setting.

85. The precautionary principle places an obligation on the

hospital to take positive steps to reduce the risk of

transmission. If there are steps that can be taken now to

reduce those risks, it is incumbent on the employer to do

so. This principle requires that the hospital not wait until

there is definitive proof of a significant risk to health and

safety before action is taken to mitigate against that risk. In

this case, it would be impossible for the hospital to provide

definitive proof that Messrs. Oribine and Muir’s presence on

the property would significantly increase the risk of

transmission of the virus. . . .

86. There is no question that the pandemic has disrupted

many workplaces in ways that would not have been

anticipated prior to this crisis. Arbitrators have recognized

the challenges that employers have faced and have

generally upheld actions that have been taken to protect the

health and safety of workers: see Chatham-Kent [Chatham-

Kent and CUPE, Local 12.2 (Moynahan), 2021 CarswellOnt

6489 (Ont. Arb.)] and the cases referenced therein.

87. Given the nature of this workplace and the patient

population the hospital serves, I accept that the decision to

bar the union’s staff representatives was reasonable in all of

the circumstances. Taking all of this into consideration, I

accept that the policy is reasonable in regard to the

balancing of the competing interests described above.

171.

I do not reach the same conclusion in the context of Chartwell’s

homes and the different regulatory environment after the revision of

Directive #3 in July 2021.

- 74 -

172.

Having regard for the absence of analysis and exposition of any

risks presented by Union Representatives admitted as they were for

ratification meetings and the contemporaneous exposure of residents

and staff to strangers on their outings to Dollarama, I was left with the

concern that the precautionary principle was being invoked only in

response to the Union’s seeking access to the homes in circumstances

of no perceived benefit to Chartwell. As matters stand, Chartwell has

made no demonstration of a balancing of interests. Rather than consider

and adopt the means by which the conditions that accommodated the

ratification meetings could be safely replicated for other membership

meetings run by Union Representatives, the responding parties have

relied on a blanket policy of exclusion and, in evidence, sought to justify

their position with reference to more pedestrian issues such as a chef’s

being absent from his kitchen for five minutes or so at the end of his

shift. There is no balancing of interests evident or discernible in the

approach Chartwell has taken and maintained.

173.

The precautionary principle recognized in Humber River and

relied on here by Chartwell is to be applied in the context of the

provincial directives in place on and after July 14, 2021 and in the

environment established for long-term care and retirement homes as

distinct from the “acute care hospital setting” Arbitrator Johnston wrote

of in Humber River.

174.

As Chartwell noted, notwithstanding positive developments in

the COVID situation from time to time, there can be no certainty

regarding the future and no assurance that the circumstances of the

pandemic would not deteriorate. The responding parties’ point is

sensible and incontrovertible; however, just as the course of COVID-19

and the provincial directives changed from time to time, so too could

Chartwell’s approach to its responsibilities to its residents, its

employees, and the Union. If there were signs of worsening

circumstances associated with COVID-19, Chartwell would not be

precluded from altering its policy with respect to visitors’ access. Rather,

it would be expected or required to do so. The homes had progressed

from circumstances in which no outside visitors were allowed in the early

months of 2020 to the point in July 2021 when entertainers were

welcome, and residents were permitted to enjoy field trips. Those

relaxations could expand or contract as circumstances and the provincial

authorities might dictate.

- 75 -

175.

The precautionary principle does not excuse or justify a blanket

exclusion order as defended here by Chartwell. It is to be relied upon as

befits the circumstances in which it is invoked and not in the abstract or

a theoretical vacuum.

176.

In the result, I have concluded that the responding parties are

in much the same position as the Board found the employer in Millcroft

Inn, supra. In determining that the employer had violated section 70

by refusing to provide the applicant union with contact information for

employees in the bargaining unit it represented, the Board made the

following observations that are apposite here:

16. A violation of section 70 of the Act does not require an

anti-union animus. If the result of certain conduct is

interference in the union’s capacity to represent its

members, that can be sufficient to constitute a breach of

the provision. The conduct may be lawful and bona fide; it

may be free of any anti-union taint, yet if its effect is to

harm the union’s capacity to represent its members, it may

be a violation. It will be a violation if there is no business

rationale for the interference. As the Board said in Carleton

University [1998] OLRB Rep. January/February 17:

49. In International Wallcoverings, [1983] OLRB Rep.

August 1316 the Board acknowledged the utility of

having an unfair labour practice provision for which

motive was irrelevant. At the same time the Board

observed that all legitimate employer conduct which

may "interfere" with a bargaining agent should not

necessarily amount to an unfair labour practice. For

example, where an employer dismisses an inside

organizer and the Board finds that the dismissal is not

tainted by an anti-union animus, it may very well be that

the union's organizing efforts have been interfered with

despite the fact that the dismissal is appropriate in the

circumstances. These facts should not in every case

amount to an unfair labour practice. If they did, then

there would be no need for sections 72 and 76 of the

Act.

50. The Board in that case, fashioned a test which

attempted to balance these competing principles. The

test requires a balancing as between the "business

- 76 -

purposes" behind the employer's conduct and the

union's "protected activity" which may have been

interfered with. In paragraph 32 of that decision, the

Board described the type of employer conduct which

would breach section 70:

... cases arise where employer conduct has a

significant impact on protected activity and, while

supported by good faith, does not reflect a

persuasive or worthy business purpose ...

17. What needs to be done in this case is to determine in the

first instance whether the employer’s refusal to give the

union the names, addresses and telephone numbers of the

employees amounts to interference in the union’s capacity

to represent them. If that is factually so, then there is a

second inquiry: is there a sound business purpose which

would counterbalance the adverse impact upon the union’s

capacity to represent the employees. (emphasis added)

177.

Contrary to Chartwell’s submission, I have concluded that its

imposition of its restrictive visitor policy excluding Union

Representatives interferes with the Union’s administration as well as its

representation of bargaining unit employees. The imposition of the

exclusionary policy was not justified as being “for an eminently sound

business purpose”. To the contrary, the policy was unsupportable as a

necessary consequence of Directive #3 and the guidance issued by the

authorities in July 2021.

178.

The responding parties offered no substantive answer to the

Union’s case regarding the adverse effects of its Representatives’ being

denied direct contact on site with bargaining unit employees. Moreover,

the responding parties’ obligation to act to mitigate risks for staff and

residents was not shown to justify the application of the blanket

exclusionary policy to the Union given the history of accommodating the

ratification meetings, prospective resident visits, and outings, as well as

the absence of any evidence that the Union would resist adhering to

protocols derived from and supported by Directive #3 or its successors.

179.

In all of the circumstances, I am satisfied that Chartwell’s

business rationale aligned with the provincial directives, but went far

beyond what was objectively required and did interfere with the

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administration of the Union and its representation of bargaining unit

employees.

The Section 76 Complaint

180.

In responding to this aspect of the application, Chartwell

referred to Turnkey, supra, in which the Board made the following

comments about the requirements to establish a violation of section 76:

21. The type of conduct that can could [sic] make out

a prima facie violation of section 76 of the Act is where it

can be established that “a person’s free choice has been

removed by the imposition of a direct or implied

consequence which the Board has held could establish a

basis for finding intimidation or coercion” (see paragraph 34

of Armatec Survivability, 2018 62801 (ON LRB)).

22. The Board has further described that “intimidation” or

“coercion” could be established where there is a demand that

has been made that a person refrains from exercising a right

under the Act (implicitly or explicitly) and force has been

threatened (physical or non-physical) if that demand is not

satisfied. At paragraph 12 of Atlas Specialty Steels (Sammi

Atlas Inc.), 1991 6181 (ON LRB), which cited

paragraph Sutherland, Keith MacLeod, [1983] OLRB Rep.

July 1219, the Board wrote:

The meaning of "intimidation or coercion" within the

context of section 70 has been considered in a large

number of prior Board decisions: see, for example Keith

MacLeod Sutherland [1983] OLRB Rep. July 1219. In

order for there to be even an arguable case for a breach

of section 70, there must be intimidation or coercion of

a sort which seeks to compel a person, amongst other

things, to refrain from exercising any of the rights they

might enjoy under the Act. There must be some force

or threatened force, whether of a physical or non-

physical nature. As the Board stated in K.M.

Sutherland:

… there must be a threat or other intimidating

or coercive action coupled with an express or

implied demand that a person (for example)

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refrain from exercising a right under the Act or

from performing an obligation under the Act.

[emphasis added [by the Turnkey panel]]

181.

The responding parties also highlighted the following statement

in Foundations Brisson, supra, regarding the application of section 76:

57. It is not enough for a party to characterize conduct as

“intimidating” or “coercive”: it must plead facts that would

permit the Board to reach the conclusion that a reasonable

employee possessed of critical faculties would have felt

intimidated or coerced into supporting (or not supporting as

the case may be) a union organizing campaign.

182.

I note that in response to Ms. Yung’s attending on the Gibson

Retirement Residence parking lot, Chartwell reacted quickly to threaten

her with summoning the police to remove her should she trespass on

the property again. That, however, was the only conduct engaged in by

Chartwell or any of the responding parties’ management staff that might

be thought of as constituting intimidation or coercion or that might be

taken to have been intended to control the behaviour of the Union

Representatives and dissuade all from seeking to attend to communicate

with the responding parties’ bargaining unit employees and their

stewards.

183.

In the application filed only seven days later on October 1,

2021, the Union referred to Ms. Shipperly’s email to Ms. Yung on

September 24, 2021 as “reiterating Chartwell’s view that it has the right

to exclude Union representatives”. The pleading continued to assert that

Chartwell “went further and threatened to contact the police should

Yung attend again”.

184.

The application was supplemented with additional particulars on

October 7, 2021. In those the Union alleged that the admission of

entertainers “demonstrates Chartwell’s supposed concern over limiting

visitors due to Covid-19 precautions is entirely disingenuous”, but said

nothing of any coercive or intimidatory behaviours.

185.

Ms. Yung’s will say delivered on March 14, 2022, the final day

of the hearing, said nothing about the response from Ms. Shipperly.

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Moreover, Ms. Yung said nothing in her viva voce evidence of her being

threatened, intimidated, or coerced by the responding parties.

186.

In the result, the Union’s case for a violation of section 76 was

limited to the reference to Ms. Shipperly’s threat to call the police in

relation to what she alleged to be trespass by Ms. Yung and the Union’s

pleading that “the Employer has violated Section 76 of the Act by

seeking by intimidation or coercion to compel SEIU Representatives not

to exercise their rights and performing their obligations — and those of

the SEIU — under the Act.”

187.

If I apply the standard suggested in Foundations Brisson —

“that a reasonable employee possessed of critical faculties would have

felt intimidated or coerced” — and as I am satisfied that Ms. Yung is

both reasonable and possessed of critical faculties and as I am aware of

her silence on the subject of the threat — I must conclude that she was

neither intimidated nor coerced by the statement made by Ms.

Shipperly. Putting it differently, I am confident that had she been

intimidated or coerced I would have heard of it from her and not be left

with the bare pleading in the application and the text of Ms. Shipperly’s

email.

188.

There being nothing more advanced in support of the second

branch of the Union’s complaint, I find that no violation of section 76

has been established. Accordingly, that element of the application is to

be dismissed.

Conclusion

189.

For all of the foregoing reasons I find that the responding

parties are in violation of section 70 in the application of the ban on

Union Representatives entering the premises for any purpose

notwithstanding that nothing other than Chartwell’s undocumented

policy precludes their doing so in all instances.

190.

For the avoidance of doubt, the Board is not ordering the

responding parties to accede to every request that the Union might

make to have access to Chartwell premises or to convene meetings on

the property of any of the responding parties. Rather, the responding

parties are ordered to cease applying the exclusionary policy and

rejecting requests for access without communicating to the Union their

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definitive and reasonable basis (or bases) for any denial and without

responding substantively to the Union in the event that it asks for

explanations in respect of any denials of access or with regard to the

terms under which access is granted.

191.

While it is not my intention to circumscribe the parties’

communications or arrangements, it seems to be self-evident that, if

nothing else, the circumstances under which Chartwell or the responding

parties and the Union agreed to conduct three ratification meetings in

Chartwell homes ought to assist the parties in identifying the terms of a

manageable policy. Presumably those arrangements were initiated with

the Union’s advanced notice or request and concluded with a

collaboration regarding physical arrangements, including time, place,

and permissible number of attendees.

DISPOSITION

192.

Accordingly, the application succeeds in part. The application

is dismissed insofar as it relates to section 76 of the Act and the Board:

a) declares the responding parties to have violated

section 70;

b) orders the responding parties to cease violating

section 70 by purporting to exclude the Union’s

Representatives from attending at the responding

parties’ premises to perform their functions as union

representatives without reasonable justification

comprehensively communicated to the Union; and,

c) in accordance with and subject to the parties’

collective agreements, the foregoing reasons, and

Directive #3 (or any revision thereof), orders the

responding

parties

to

permit

the

Union’s

Representatives to attend at the responding parties’

premises to perform their functions as union

representatives, as the parties, acting reasonably,

shall agree.

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193.

I shall remain seized solely for the disposition of any disputes

regarding the implementation of this decision.

“Derek L. Rogers”

for the Board