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.  
1 The 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  
2 This 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, 2007.3 A 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,4 General 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  
4 Using 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):  
- 16 -  
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 stewards5 who 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  
5 In fact, there were two and a former steward as noted below.  
- 17 -  
say) that Ms. Yung did not respond to her September 24th rebuke 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 inand 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”.6 Ms. 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 Representativesphysical  
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  
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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 partiespremises 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  
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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  
cohortedand 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 Unions 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  
restrictionis 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 Chartwells 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  
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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 visitorsagreement 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.  
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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, Chartwells 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 Unions 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.