Southampton Nursing Home v Service Employees International Union, Local 1 Canada

Grievance File No.:100-215-363

IN THE MATTER OF AN ARBITRATION

Under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A

B E T W E E N:

SOUTHAMPTON NURSING HOME

(the “Employer” or “Home”),

- and -

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 1 CANADA

(the “Union” or “SEIU”),

AND IN THE MATTER OF A POLICY GRIEVANCE REGARDING ALLEGED IMPROPER

ASSIGNMENT OF “RAI COORDINATOR” WORK.

SOLE ARBITRATOR:

APPEARANCES

For the Union:

Gordon F. Luborsky

Robert M. Church, Counsel

Mana Lindsay, Union Representative

Pat Norman, Acting Chief Steward

Allison Ward – Trumbley, Chief Steward

Deb Stiles, Registered Practical Nurse

Shirley Hearn, Registered Practical Nurse

For the Employer:

Michael Allen, Counsel

Brenda Ohm, Administrator

Mary Barber, Director of Human Resources

Barb Bryan, Care Service Coordinator for Quality, Jarlette

Health Services

HEARD:

November 8, 2017, July 11 and 12, 2018, Written Submissions

Received April 1, 6, 11 and 13, 2020, September 16, 2020,

November 12, 17, 2020 and December 2, 2020

Owen Sound, Ontario and by Videoconference

INTERIM AWARD:

FINAL AWARD:

April 14, 2020

July 11, 2022

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FINAL AWARD

I.

The Grievance Details

[1]

The Union’s grievance #100-215-363, dated February 11, 2013, alleges that, “The

Employer has violated the collective agreement, specifically but not limited to, Article 2.01

Scope and Recognition and 25.04 by excluding the RAI Coordinator from the bargaining Unit.

The remedy requested is, “Full redress including but not limited to: The Employer recognize the

RAI Coordinator as part of the bargaining unit and negotiate an appropriate rate of pay for this

position and any other adjustment that is deemed fair and equitable.”

[2]

The Employer’s written response dated February 13, 2013, states: “It is our position this

grievance is untimely. Without prejudice to this objection, we have reviewed the grievance and

find there to be no violation of the collective agreement.”

[3]

The collective agreement at the date of the grievance is effective September 16, 2012,

with an expiry date of September 15, 2015; however, there have been no changes in the

applicable contractual language to the conclusion of the evidence and the parties’ representations

in this case. Thus, to the extent the matter is a continuing grievance, the contractual language

remains unaltered and in effect.

[4]

The Employer denies any violation of the collective agreement and as described below,

initially claimed that the Union either abandoned or failed to process its grievance within the

time limits set out in the negotiated grievance procedure, thereby depriving me of jurisdiction to

hear the present dispute.

[5]

Without prejudice to that position, the Employer maintains that its assignment of the RAI

Coordinator function as part of the duties and responsibilities of a non-bargaining unit member

referred to as a “Co-Director of Care” was appropriate in the circumstances and within its

“Management Rights” to make.

Page 3 of 75

[6]

Notwithstanding the Employer’s initial claim of abandonment, the parties agreed to

present their full case on both the timeliness and merits of the grievance, arguing the

jurisdictional question at the conclusion of the evidence.

[7]

Given the nature of the RAI Coordinator work extensively described below and the

history of its performance at the Southampton Home, the dispute between the parties may be

encapsulated as follows: The Union asserts that such work is more appropriately assigned to its

bargaining unit members within the Registered Practical Nurse (“RPN”) classification who are

entitled to a premium for fulfilling the additional responsibilities of the RAI Coordinator role;

while the Employer maintains that it is properly part of the job functions included within the

classification of the Co-Director of Care, who is also a Registered Nurse (“RN”) recognized as a

member of the Home’s administration outside of any bargaining unit.

[8]

The relevant provisions of articles 2.01 (“Scope and Recognition”) and 25.04

(“Compensation”) referred to in the grievance (along with articles 2.02, 17.05 and Appendix “A”

mentioned by the Union in argument) are set out below:

ARTICLE 2 – SCOPE AND RECOGNITION

2.01 The Employer recognizes the Union as the sole collective bargaining agent for all

Employees of Southampton Nursing Home, Southampton, Ontario, save and

except professional medical staff, registered nurses, supervisors, persons above

the rank of supervisor, office staff, dieticians and physiotherapists.

2.02 The Employer undertakes that he will not enter into any other agreement or

contract with those employees for whom the Union has bargaining rights either

individually or collectively which will conflict with any of the provisions of this

Agreement.

…

ARTICLE 17 – PREMIUM PAYMENTS

…

17.05 Responsibility Allowance for Work Outside the Bargaining Unit

(a) When the Employer temporarily assigns an employee to carry out the

responsibilities of a salaried employee outside of the bargaining unit for a

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period in excess of ½ shift, the employee shall receive an allowance of eight

dollars ($8.00) for each shift from the time of the assignment.

(b) Where an RN is absent from her normal shift, and the Employer temporarily

assigns an RPN to carry out some additional responsibilities of the absent RN

for a period in excess of ½ shift, the employee shall receive an allowance of

eight dollars ($8.00) for each shift.

(c) Where there is neither an RN nor a Supervisory employee (or above), who is

a Registered Nurse in the building and there is an RPN in the building, the

above-noted allowance will apply to an RPN who is designate to be in charge

of the building.

(d) It is understood and agreed that only one of the above-noted premiums will

apply at any one time.

ARTICLE 25 – COMPENSATION

…

25.04 New Classification

When a new classification (which is covered by the terms of this agreement) is

established by the Home, the Home shall determine the rate of pay for such new

classification and notify the Local Union of the same within seven (7) days. If the

Local Union challenges the rate, it shall have the right to request a meeting with

the Home to endeavour to negotiate a mutually satisfactory rate. Such request

will be made within ten (10) days after the receipt of notice from the Home of such

new occupational classification and rate. Any change mutually agreed to resulting

from such meeting shall be retroactive to the date that notice of the new rate was

given by the Home. If the parties are unable to agree, the dispute concerning the

new rate may be submitted to arbitration as provided in the Agreement within

fifteen (15) days of such meeting. The decision of the Board of Arbitration (or

arbitrator as the case may be) shall be based on the relationship established by

comparison with the rates for other classifications in the bargaining unit having

regard to the requirements of such classification.

…

If the matter is not resolved following the meeting with the Union the matter may

be referred to arbitration as provided in the Agreement within fifteen (15) days of

such meeting. The decision of the Board of Arbitration (or arbitrator as the case

may be) shall be based on the relationship established by comparison with the

rates for other classifications in the bargaining unit having regard to the

requirements of such classifications.

Page 5 of 75

The parties further agree that any change mutually agreed to or awarded as a

result of arbitration shall be retroactive only to the date that the Union raised the

issue with the Home.

…

APPENDIX “A” – RPN ISSUES

Definitions:

A Registered Practical Nurse (RPN) is a nurse who holds a Certificate of Registration with

the College of Nurses of Ontario in accordance with the Regulated Health Professions Act,

and the Nursing Act.

A Practical nurse (PN) is a nurse who holds a Temporary Certificate of Registration in

accordance with the Nursing Act, 1991 and its Regulations must obtain her or his

Certificate of registration prior to the expiry of her or his Temporary Certificate. If the

nurse fails to obtain her or his certificate of registration prior to the expiry of her or his

Temporary Certificate of registration she or he will be deemed to be not qualified for the

position of registered Practical Nurse and she or he will be terminated from the employ of

the Nursing Home. Such termination shall not be the subject of a grievance or arbitration.

Termination may not apply in circumstances where the Employee has been employed in

another classification in the bargaining unit within the previous twelve (12) months.

A nurse who holds a Temporary certificate of Registration will be classified, for purposes

of salary, at the RPN probation rate.

…

[9]

Also of relevance to the argument on the merits is article 3.01, entitled “Management

Rights”, which provides as follows:

ARTICLE 3 – MANAGEMENT RIGHTS

3.01 The Union acknowledges that subject to the provisions of this Agreement, it is the

exclusive function of the Employer:

a) To hire, rehire, classify, promote, demote, transfer, layoff, recall, discipline, or

discharge Employees, direct and control the work of the employees and the

operation of the Home, to assign employees to shifts, and/or to increase and

decrease the working force, provided that there are always a sufficient number of

employees on duty to perform the work required to be done; and provided further

that a claim by an employee that he or she was unjustly disciplined or suspended

or transferred, or a claim by an employee that he has been discharged without

just cause may be the subject of a grievance and dealt with as hereinafter

provided.

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b) To maintain order, discipline and efficiency and to make and alter reasonable

rules and regulations to be observed by the employees which are not expressly

contrary to any other Article of this Collective Agreement. The Employer agrees

prior to the introduction of any new policy or procedure related to terms and

conditions of employment the Union will be advised by providing a copy of such

policy to a Union Steward or through the Labour Management Committee.

c) Generally to manage the Home and without restricting the generality of the

foregoing, to select, install and require the operation of any equipment it decides it

is necessary to use. However, if any jobs within the bargaining unit are affected by

the installation of any equipment, then the Management and Union shall meet

forthwith to negotiate the resulting effect on such jobs and the employees

concerned.

[10] Given the nature and history of the disputed work and relying in part on the foregoing

contractual provisions, the Union articulated its remedial request during opening statement as:

“(a) a declaration that there has been a substantial change to an existing classification that in

reality is a new classification; or in the alternative (b) that the employees performing RAI

Coordinator work fall exclusively within the Union’s bargaining unit; (c) a decision setting the

proper wage rate for the RAI Coordinator position; (d) full redress to the Union by way of back

Union dues calculated from the date of the grievance; and (e) payment of any difference in the

wage rate for the bargaining unit employees performing RAI Coordinator work from the date of

the grievance to present.”

[11] The Employer later withdrew its claim that the Union had abandoned its grievance, on

terms described below.

II.

Decision

[12] Having regard to an agreement between the parties, the Employer’s preliminary objection

need not be determined. In any event, on the merits I conclude the Union’s grievance must be

dismissed. My reasons are as follows.

III.

Background to the RAI Coordinator Position

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[13] The Employer is an 88-bed long-term care facility (also referred to as an “LTC Home”)

located in the rural community of Southampton, Ontario, on the shores of Lake Huron. It is

owned and operated by “Jarlette Health Services” (hereinafter “Jarlette”), which since inception

some 50 years ago has grown to include 14 LTC Homes (including Southampton) and eight

“retirement lodges” across Ontario providing essential living and rehabilitative services to more

than 1,600 elderly and/or vulnerable residents. The SEIU represents employees at a number of

those facilities. The long-term care sector receives public funding that is highly regulated and

closely supervised by provincial government inspectors.

[14] The Resident Assessment Instrument Program (referred to as “RAI”) was introduced by

the Ontario Ministry of Health and Long-Term Care (“MOHLTC”) in or about 2009 for

mandatory use at all provincial long-term care facilities. It uses a computer-based platform for

compiling detailed resident information from many sources and observations/measurements on

the resident (referred to as a “Minimum Data Set” or “MDS”). The version of the platform in

place at the time of the grievance and throughout the hearing is referred to as “RAI-MDS 2.0”,

which is described in a detailed 260-page manual issued in February 2012 that was filed and

reviewed during these proceedings.

[15] In broad terms, the RAI – MDS is characterized in the documentation as an “assessment

tool” that is intended to provide a “standardized approach” to resident care planning and

government funding through comprehensive and ongoing evaluative procedures and protocols.

The tool helps care providers in developing individual “care plans” for each resident based on a

compilation of the resident’s strengths, limitations, and preferences that is revealed by the data.

The information provided by the assessment tool is also used to inform government on the

relative performance of Homes and appropriate levels of funding for the population of residents

at a particular LTC facility.

[16] The general description of the RAI – MDS tool presented by the Employer during its

opening statement is not in dispute (although elaborated upon by witnesses from both sides as

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recounted below). It consists of some six discrete components or steps as part of a

comprehensive system of resident assessment, summarized as follows.

[17] First, an “MDS” or “Minimum Data Set” is generated by entering answers to a

standardized list of 450 questions for each resident on the computer, which forms the foundation

or data base of the resident’s condition for purposes of the RAI tool. (These questions are set out

in the 260-page manual universally applied throughout the province.) The assessment uses

defined terms, and it codifies the answers to the questions asked in a way that enables the LTC

facility to statistically compare one resident to another; one resident now to the same one a year

ago or five years ago; one LTC Home against another in the same chain of Homes; and one

Home against all the other LTC Homes in Ontario. It is also used as a screening tool to identify

conditions that might be a problem for a resident, as well as flagging the resident’s strengths and

preferences. A variety of staff from within and outside the Union’s bargaining unit at the LTC

Home make contributions to the RAI (recording raw data via a computer terminal); mostly by

registered nurses (both RNs and RPNs), with participation of dietary, recreation, pharmacy,

physiotherapy, and other clinical staff, including information from the resident’s admission

records and family members, all of which is codified by staff members through the computerized

program.

[18] Second, through its software program, the information entered onto the material data

sheets will automatically identify up to 18 distinct areas of risk within what is referred to as the

“Resident Assessment Protocol System” or “RAPS”, which constitutes the next component

under the RAI Program. This has the effect of warning the Home’s clinicians of potential

challenges in providing optimal care as well as problems with any existing “care plan” for the

resident, requiring further investigation and/or adjustment.

[19] The combination of the MDS and RAPS generated for the resident is used to develop

and/or maintain the third component of the RAI known as the “care plan”, which is a device that

predated the arrival of the RAI from contributions by all staff that with the arrival of the

standardized program under the RAI is said to be capable of more precise development and

Page 9 of 75

adjustment in response to the resident’s immediate needs and ongoing challenges. The care plan

for each resident is determined through the collaboration of staff from a variety of disciplines

(often referred to as an “interdisciplinary team”) within the LTC Home environment such as

nursing, dietary, recreation, medicine, physiotherapy, etc., becoming the essential blueprint of the

appropriate activities, services and requirements to keep the resident safe, foster a degree of

independence and enhance the resident’s quality of life. The care plan is understandably in a

constant state of flux as the condition and capabilities of the resident inevitably changes over

time, requiring monitoring and updating on a regular basis.

[20] That reality encompasses a need for currency which leads to the fourth part of the RAI

Program referred to as “time”, that is recognized as being “unforgivably strict”. Under the RAI

program, each resident is given a complete “head to toe” assessment within 14 days of admission

(all of which is electronically recorded via the RAI computerized tool), following which the

resident must be routinely reassessed (on all 450 questions) every quarter unless circumstances

emerge requiring an earlier evaluation. An earlier than usual assessment may be triggered by

material changes in the resident’s mental and/or physical condition within each quarterly interval.

The assessment period for an individual is a rigid seven days.

[21] The fifth component of the RAI is said to be the detailed reporting mandates of the

provincial government. Every three months the LTC Home is directed to submit all the

information it has gathered about its residents to an agency called the Canadian Institute for

Health Information (or “CIHI”), which must be completed within sixty days after the end of the

quarter. CIHI’s role is to manage the data and report back to the Home on its completeness,

which is also made available to government for the dual purposes of planning for future facilities

and providing appropriate (and equitable) funding to the LTC Homes throughout the province.

[22] The sixth and final component of the RAI may be characterized as “quality assurance”,

which is the use of the comprehensive data provided by the assessment tool to monitor the

performance of the LTC facility under a number of criteria for purposes of identifying rates of

occurrences (and changes from year to year) of such things as resident falls, incidence of various

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diseases, deaths and other circumstances; along with identifying best practices at the facility,

thereby enabling the LTC Home (and supervising government) to statistically assess the risks to

individual residents of negative events (i.e. not on individual perceptions alone). Under this

component a series of indices are generated by the RAI Program that are used to evaluate the

clinical status of the LTC Home’s resident population (in quantifiable terms that includes the

degree of cognitive impairment, depression, disability, and pain, among others), comparing that

data within the same Home over time and with other comparable facilities within the province.

[23] While many staff members from within and outside different bargaining units are

routinely engaged in the process of inputting the raw data in the computerized assessment tool,

the person (or persons) responsible for overseeing and bringing all six components of the RAI

Program together in a consistent manner is referred to as the “RAI Coordinator” (or some other

title having the equivalent function). That position ensures that all steps in the assessment tool

are properly completed (primarily by others) in a timely fashion and filed with CIHI or refiled

with CIHI in response to its assessment of the sufficiency of an earlier filing.

[24] The question at the instant Home, which has arisen in many LTC facilities elsewhere in

the province since the introduction of the RAI tool, is whether the RAI Coordinator functions are

inherently those of a person within the Union’s bargaining unit as claimed in the present case

(and by this Union for its bargaining units elsewhere in the province), or is appropriately

assigned to individuals outside of that bargaining unit as asserted by the Employer at the

Southampton Home and at many other comparable institutions.

[25] It is a question leading to differing opinions, as well as being the subject of seemingly

contrary arbitral conclusions having regard to the circumstances and contractual language at

differing long-term care facilities resulting in understandable confusion and ongoing conflict

among parties, supporting the need for a comprehensive look into this issue.

IV.

General Overview of the “RAI - Coordinator” Jurisprudence

Page 11 of 75

[26] Thus, in setting the framework for the assessment of the evidence presented by the parties

before me, it is appropriate to first review the arbitral jurisprudence touching on the issues raised

by the present dispute since the introduction of the RAI Program in Ontario, and particularly

those cases where a challenge to the assignment of RAI Coordinator work has been made

elsewhere in the province.

[27] In that regard, the Union referred to the following arbitration decisions: Re OPSSU and

OPSEU (2017-28), 2018 CarswellOnt 2246, [2018] O.L.A.A. No. 34, 134 C.L.A.S. 165, 289

L.A.C. (4th) 94 (Ont. Arb.) (Wilson), Spar Aerospace Ltd. v. S.P.A.T.E.A., 1994 CarswellOnt

6079, [1994] O.L.A.A. No. 20, 35 C.L.A.S. 88, 40 L.A.C. (4th) 215 (Ont. Arb.) (Brown), Perley

Hospital v C.U.P.E., Local 870, 1984 CarswellOnt 2474, [1984] O.L.A.A. No. 93, 16 L.A.C.

(3d) 413 (Ont. Arb.) (Roach), Re Square D Co. Canada Ltd. and United Electrical Workers,

Local 511, 1975 CarswellOnt 1472, 11 L.A.C. (2d) 96 (Ont. Arb.) (Weatherill), Re Unifor, Local

4050 and Inn Vest Hotels GP XV Ltd., 2019 CarswellAlta 124, [2019] A.W.L.D. 1008, 138

C.L.A.S. 234, 300 L.A.C. (4th) 391 (Alta. Arb.) (Ashell), Fairhaven Home for Senior Citizens v.

O.N.A., 1002 CarswellOnt 6623, 25 L.A.C. (4th) 354, 26 C.L.A.S. 386 (Ont. Arb.) (Knopf),

Northwestern Ontario Regional Cancer Centre v. O.N.A., 2004 CarswellOnt 6384, [2004]

O.L.A.A. No. 969, 135 L.A.C. (4th) 80 C.L.A.S. 4 (Ont. Arb.) (Keller), St. Raphael’s Nursing

Homes Ltd. v. London & District Building Service Workers’ Union, Local 220, 1975

CarswellOnt 1517, 9 L.A.C. (2d) 441 (Ont. Arb.) (H. D. Brown), U.N.A. v. Calgary Regional

Health Authority, 1999 CarswellAlta 803, [1999] Alta. L.R.B.R. 458, [1999] Alta. L.R.B.R. LD-

058 (Alta. LRB) (Wallace), Brown, Donald J. M. and David M. Beatty, Canadian Labour

Arbitration, 5th ed. (Toronto: Thomson Reuters, online), ¶ 5:2410 (Changes in Job Function), Re

Sperry Inc. and United Automobile Workers, Local 641, [1985] O.L.A.A. No. 70 (Ont. Arb.)

(Hinnegan), Sienna Senior Living v. Service Employees International Union Local 1 Canada

(RAI Coordinator Wage Rates Grievance), [2016] O.L.A.A No. 148 (Ont. Arb.) (Goodfellow),

Richmond (Township) v. C.U.P.E., Local 718, 1987 CarswellBC 2016, 32 L.A.C. (3d) 251, 7

C.L.A.S. 129 (BC Arb.) (Larson), I.U.O.E., Local 721 & 721B v. National Gypsum (Canada)

Ltd., 1999 CarswellNS 335, 56 C.L.A.S. 16, 80 L.A.C. (4th) 115 (NS Arb.) (Archibald),

Page 12 of 75

Canadian Blood Services v. O.P.S.E.U., Local 5103, 2002 CarswellOnt 5797, 102 L.A.C. (4th)

223, 67 C.L.A.S. 121 (Ont. Arb.) (Devlin), Westgate Lodge v. Service Employees Union, Local 1

Canada (RAI Coordinator Grievance), [2014] O.L.A.A. No. 421 (Ont. Arb.) (Tims), Shepherd

Village Inc. v. Ontario Nurses’ Assn. (RAI Coordinator Position Grievance), [2010] O.L.A.A.

No. 197 (Ont. Arb.) (Jesin), Perley and Rideau Veterans’ Health Centre v. Ontario Nurses’ Assn.

(RAI Coordinator Grievance), [2007] O.L.A.A. No. 472 (Ont. Arb.) (Starkman), Leisureworld

Caregiving Centres v. Service Employees International Union, Local 1 Canada (RAI Grievance),

[2013] O.L.A.A. No. 30 (Ont. Arb.) (Goodfellow) and Bunyan et al. v. Treasury Board

(Department of Human Resources and Skills Development), [2007] C.P.S.L.R.B. No. 79 (Can.

P.S.L.R.B.) (Done).

[28] The Employer also filed the following authorities: Re Concordia Hospital and Manitoba

Assn. of Health Care Professionals (04-064), 2007 CarswellMan 881, [2007] M.G.A.D. No. 52,

95 C.L.A.S. 271 (Man. Arb.) (Werier), Hamilton Health Sciences v. O.N.A., 2010 CarswellOnt

11491 (Ont. Arb.) (Levinson), Lanxess Inc. v. C.E.P., Local 914, 2009 CarswellOnt 7693 (Ont.

Arb.) (Brandt), Shepherd Village Inc. v. Ontario Nurses’ Assn. (RAI Coordinator Position

Grievance), supra, Ottawa Hospital v. O.P.S.E.U., 2003 CarswellOnt 5765, [2003] O.L.A.A. No.

504, [2003] O.L.A.A. No. 509, 120 L.A.C. (4th) 21, 74 C.L.A.S. 314 (Ont. Arb.) (Kaplan),

Scarborough General Hospital v. O.P.S.E.U., Local 575, 2004 CarswellOnt 3224, [2004] L.V.I.

3477-10, [2004] O.L.A.A. No. 484, 78 C.L.A.S. 142 (Ont. Arb.) (Knopf) and Sperry Inc. v.

U.A.W., Local 641, supra.

[29] Of the many authorities submitted, the most relevant for the immediate purpose of

discerning the principles applied by labour arbitrators in resolving disputes over the assignment

of RAI – Coordinator work since the introduction of the new Resident Assessment Instrument

Program are (in chronological order): Perley and Rideau Veterans’ Health Centre, supra (2007),

Shepherd Village Inc., supra (2010), Leisureworld Caregiving Centres, supra (2013), Westgate

Lodge, supra (2014), and Sienna Senior Living, supra (2016).

Page 13 of 75

[30] The 2007 award in Perley and Rideau Veterans’ Health Centre, supra, considered a

grievance by the Ontario Nurses’ Association (ONA) challenging the employer’s decision to

establish two RAI – Coordinator positions designated as non-unionized, that were later filled by

one RN who had worked at the facility for five years and another otherwise employed as an RPN.

The detailed job description established by the employer provided in part that, “Under the

supervision of the Manager, Nursing Practice, the RAI Coordinator is responsible for the

successful implementation of the RAI-MDS 2.0. The RAI Coordinator will take a leadership

role in educating and coordinating an interdisciplinary team to ensure completion of the RAI-

MDS 2.0 in a timely and accurate manner. The RAI Coordinator will be provided with extensive

training on the RAI-MDS 2 instrument and is expected to participate in all appropriate RAI-MDS

2.0 orientation and training.” It further divided the incumbent’s duties into four main areas: (1)

consultation with other staff including management, physicians and staff on proper coding

parameters (30%); (2) education of appropriate interdisciplinary team members on the RAI –

MDS 2.0 system including staff development and mentoring (30%); (3) managing and

coordinating the completion of assessments, including tracking forms, RAPS and care plans by

the interdisciplinary team members as well as performing quality control and audit functions to

evaluate and maintain coding accuracy and the timely completion of information for submission

to CIHI (30%); and (4) “Human Resources Management” described as providing appropriate

oversight and providing recommendations to the Home’s management (10%). Although the

“Minimum Education and Skill Requirements” for the position did not expressly stipulate either

an RN or RPN designation, it required that the candidate be a “Licensed health care professional

under the Regulated Health Professions Act” as mandated by the MOHLTC (which encompassed

both RN and RPN qualifications).

[31] In the face of the Recognition Clause of the collective agreement between the parties

which stated the employer, “recognizes the Association as the exclusive bargaining agent for all

its registered and graduate nurses engaged in a nursing capacity” (save and except certain

exemptions not immediately relevant), ONA grieved the employers failure to designate the RAI

Coordinator as a position within its bargaining unit, arguing that its duties and responsibilities

Page 14 of 75

satisfied the definition of being “engaged in a nursing capacity”, which the majority of the board

of arbitration rejected and consequently dismissed the grievance after considering a number of

authorities filed by the parties in support of their competing positions. Writing for the majority,

Arbitrator Starkman explained at para. 62, that:

62 After a careful review of the position of the RAI Coordinator as described in the evidence, the

majority of the Board is satisfied that the RAI Coordinator is not employed in a nursing capacity

because they are not expected to evaluate residents or to rely on nursing skills in carrying

out their responsibilities. The RAI Coordinator is not directly involved in patient care or in

care planning. Rather, they are involved in training the staff, including nurses, to properly

code their observations in a timely manner. It may be that there are certain instances when an

RAI Coordinator has gone to the bedside of a resident to confirm an observation, in the context of

trying to ensure consistency of observations, but the Board is satisfied that these instances are

rare and are not the focus of the position and will become even rarer as more staff are trained.

[Emphasis added]

[32] It is apparent that Arbitrator Starkman’s decision turned on an analysis of the relevant

contractual language viewed against the specific details of the job description which the

employer had established in the good faith exercise of its management rights, which included a

key finding that the “RAI Coordinator is not directly involved in patient care or in care planning

[but rather] they are involved in training the staff, including nurses, to properly code their

observations in a timely manner” leading to the conclusion that the RAI Coordinator position as

posted by the employer was not “engaged in a nursing capacity”, which thus fell outside of the

express terms of the Association’s bargaining unit.

[33] A similar analysis by Arbitrator Jesin in the 2010 decision of Shepherd Village Inc. v.

Ontario Nurses’ Assn., supra, brought a different result. Since the background to that case is the

same as other arbitration awards dealing with the other RAI Coordinator disputes filed by the

parties (including the essential facts of the instant case), it is appropriate to recount that

background in some detail.

[34] As noted at paras. 3 – 6 of Shepherd Village Inc., supra, prior to the introduction of the

RAI – MDS in Ontario, provincial funding for LTC Homes was based on what was known as

the “Alberta Classification System”, under which inspectors from the MOHLTC annually visited

Page 15 of 75

each Home for the purpose of determining the level of care required from a review of care

planning and progress notes on each resident that was generally prepared by RNs and RPNs in

the course of their work with the residents throughout the year. (These notes were typically in

the form of written documentation.) Following their review, the inspectors assigned a letter

value from A to F for each resident based on the level of assistance and care required (as revealed

by the documentation), resulting in an overall assessment of all residents referred to as the “Case

Mix Index” or “CMI”, which was ultimately used to determine the overall funding level

established for the Home. This process changed under the new RAI – MDS system, which is

more comprehensive, that includes data on such things as resident cognitive capacity, bowel and

bladder function, dental care needs, emotional needs, recreational needs, nutritional needs and

religious needs, among others, all of which is coded and entered on a computer platform. The

generic responsibilities of the RAI Coordinator under this new assessment tool “is to coordinate

and schedule the assessment of residents and to ensure that those assessments are properly

completed, coded, and entered into the computer and to ensure that that coded information is

distributed to the proper authorities” (at para. 6). After reviewing the specific job description for

the RAI Coordinator and considering the testimony of the incumbent (who was also a Registered

Nurse), the arbitrator concluded that the incumbent was “employed in a nursing capacity” even

though there was little to no direct “hands on” nursing functions exercised by the RAI

Coordinator in relation to individual residents. After considering the relevant authorities on

point and following Saugeen Memorial Hospital, September 15, 1992 (unreported, Burkett);

Sunnybrook and Women’s College Health Sciences Centre; November 29, 2000 (unreported,

Whittaker), Hamilton Health Sciences Corp., [2008] O.L.A.A. No. 612 (Dissanayake) and North

York General Hospital (2004), 78 C.L.A.S. 329 (Davie)¹Arbitrator Jesin adopted the proposition

at para. 26 “that ‘engaged in a nursing capacity’ means that there must be a requirement or at

least an expectation, that professional nursing skills and judgment will be exercised in order to

do the job.” The following paragraph at p. 13 in the Sunnybrook Hospital decision was also

quoted with approval:

1

The full citation for each of these awards was not set out in the Shephard Village Inc., decision and thus is

reproduced exactly as reported in the copy filed by the parties.

Page 16 of 75

The authorities seem to acknowledge that where an employer indicates explicitly that an RN is

required as a precondition of being placed in a position, it is very likely that an incumbent in that

job will be engaged in a nursing capacity. It is assumed, with justification, that if an employer

who exercises control over content of a posting or job description decides that an RN is

needed in order to do a job, that the reason for this is that the skills and knowledge of an

RN are actually needed to perform the work. In the absence of some strong evidence that this

is not the case, this piece of evidence, should it exist, may be dispositive.”

[Emphasis added]

[35] Applying the foregoing premise, the arbitrator emphasized (at para. 33) that in assessing

whether an RN performing in a particular job is engaged in a nursing capacity, “each case must

be determined on its own facts and on the specific duties and responsibilities of the particular

position [while being] mindful that the role of a person in one institution may vary from that of a

person in the same position in another institution because of the peculiar staffing in one

institution vs. another, or the particular requirements of an employer in one institution as

compared with another.” Thus unlike the situation in Perley and Rideau Veterans’ Health

Centre, supra, where the RAI Coordinator had little if any direct involvement with residents

(leading to the conclusion that she was not engaged in a nursing capacity), Arbitrator Jesin found

on the evidence before him that the RAI Coordinator was “required to and does regularly

complete direct assessments and coding of residents when other employees are unavailable to do

so [and had]…a more direct role in the consideration and overriding of RAPS and the evaluation

and formulation of care plans” (at para. 34), leading to the conclusion that: “the job description

before me is indicative of the Employer’s requirement and/or expectation that the incumbent will

utilize nursing skills in the performance of her responsibilities”. The arbitrator then concluded

(also at para. 34):

I agree with the observation in both North York General Hospital and Sunnybrook Hospital that

such a requirement creates a very strong presumption that the employer requires or expects

nursing skills to be utilized in the position. Indeed, it may be as the evidence and job

description suggests that the Employer expects the incumbent to have a more hands on

participation in the assessment process, the coding process or other aspects of the

process to supplement the available staff. But as arbitrator Davie stated in North York General,

the requirement in the job description renders it implausible for the Employer to advance the

proposition that the exercise of nursing skills is not required or expected.

[Emphasis added]

Page 17 of 75

[36] The effect of this decision is to emphasize the importance of the particular facts of the

case and the specific contractual language under consideration to any determination of whether

the RAI Coordinator position is or is not within the grieving union’s bargaining unit. That is to

say, the message from both Arbitrators Starkman and Jesin in the foregoing, seemingly

contradictory determinations affecting the status of the same union at different workplaces, is that

in the absence of express language in a collective agreement to the contrary, no union can be said

to have an ownership interest in the position of RAI Coordinator (or in any other position for that

matter). Rather, in what is essentially a question of contractual interpretation, both of those

arbitrators emphasize the need to consider the specific requirements of the job description itself

(which is normally written by the employer in the exercise of its management rights that is

accepted as an appropriate starting point to any analysis), and the evidence illustrating the actual

work performed by the incumbent in the context of the specific contractual language under

consideration, before there can be any conclusion on whether the job falls within or outside of a

particular bargaining unit.

[37] From that general presumption the February 1, 2013 decision of Arbitrator Goodfellow in

Leisureworld Caregiving Centres, supra, is next in chronological order, which the Union

proffered as governing authority in deciding the case before me. For that reason, it is appropriate

to review this decision in some detail as well.

[38] The relevant scope clause of the collective agreement in Leisureworld, supra, recognized

the union (which in that case was the SEIU Loc. 1 Canada) “as the sole collective bargaining

agent of all of its employees…save and except physiotherapist, occupational therapist,

supervisor, persons above the rank of supervisor, office staff persons, persons employed for less

than 24 hours per week and students employed during the school vacation year.”

[39] Significantly, the arbitrator found that both RPNs and RNs were included within the same

bargaining unit (in that and/or predecessor collective agreements under consideration with one

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exception flagged below)², and the scope clause did not contain the words “engaged in a nursing

capacity” to define either of those categories, all of whom are considered nurses (and subject to

the regulatory authority of the Ontario College of Nurses).

[40] Consequently, the union grieved when the employer assigned the new RAI – Coordinator

role to mostly but not exclusively RPNs with some RNs while refusing to recognize it as a new

classification within the collective agreement and to negotiate an appropriate wage rate. As

Arbitrator Goodfellow reported at para. 4, the employer did not argue that the RAI –

Coordinators could properly be excluded from the nurses’ bargaining unit, but rather submitted

that the position fell within the exclusion for “office staff persons” under the scope clause, which

was ultimately rejected.

[41] The case is also noteworthy for the way the arbitrator analyzed the facts before him in

concluding that the RAI Coordinator role was included within the bargaining unit. At para. 8 he

determined that, “[t]he party asserting the application of a bargaining unit exclusion bears the

onus of proving it” and, as such, the employer was required to lead its evidence first in an

attempt to prove that the new classification fell within the “office staff persons” exclusion in the

collective agreement. And as a prelude to the consideration of that evidence, the new RAI

Program in Ontario was reviewed, which is substantially identical to the testimony on point that I

received from the Employer and Union witnesses before me.

[42] For that reason, it is appropriate to reproduce Arbitrator Goodfellow’s description of the

RAI Program at paras. 11 – 18 of his Award, which I adopt as being substantially the same

evidence that I heard from both Employer and Union witnesses for purposes of describing the

background to the present dispute:

2

To be clear, the arbitrator was dealing with four policy grievances filed under four separate collective agreements

covering approximately 30 workplaces, noting that “the exclusive focus of the hearing depends upon a comparison of

the RAI Coordinator position to the scope clauses of the collective agreement. In describing those scope clauses

reference was made to different language in different workplaces (the majority having identical language to that

referred to above). To the extent that different workplaces had differing scope clauses, and given the representations

of the employer, the decision was premised on the on the basis that all “nurses” were included in the bargaining unit.

Page 19 of 75

¶ 11

The Employer owns and operates nursing homes. Nursing homes are part of the long-

term care sector of the health care industry. The long-term care sector is regulated and funded by

the Province of Ontario. Funding is provided through a number of “envelopes”. One of those is

the “Nursing and Personal Care” (“NPC”) envelope.

¶ 12

Through the NPC envelope facilities receive funds for resident care based on the number

and needs of the residents. Funding is a function of something called the Case Management

Index (“CMI”): the higher the CMI, the greater the funding. Historically, a facility’s CMI was

determined through the use of a measurement tool called the Alberta classification system. The

application of that system involved annual visits to the facility by “classifiers” from the Ministry of

Health and Long-Term Care (“the Ministry”) to review resident charts. Such individuals were also

known as “nurse classifiers” because they were all nurses.

¶ 13

The Ministry decided to replace that system with a new one. The new one is called the

Resident Assessment Instrument (“RAI”). The RAI is used to determine NPC funding, plan

resident care and evaluate and improve the results of that care. In essence, it is an electronic tool

for assembling, transmitting and evaluating the necessary information. It has to main components:

the Minimum Data Set (“MDS”) and Resident assessment Protocols (“RAPs”).

¶ 14

Information is gathered internally and transmitted to the Ministry via an organization

called the Canadian Institute for Health Information (“CIHI”). CIHI processes the information using

complex algorithms that, ultimately, generate a CMI. CIHI also provides reports to the Home that

are used in quality control and to improve resident care.

¶ 15

The foundation document is the MDS. It contains 450 questions, which, apart from basic

demographic information, describe the condition of the residents. It is broken down into 21

sections, such as “cognitive patterns”, “physical functioning and structural problems”, “continence”,

“disease diagnosis”, “health conditions”, “skin conditions”, “activity pursuit patterns”, “medications”

and “special treatments and procedures”. Most questions contain a range of possible answers. It

is the job of those completing the various sections of the MDS to choose the right answers. The

process of selecting and entering the information is called “coding”.

¶ 16

All resident must be assessed using the full MDS on admission, annually, and whenever

there is a significant change in condition. MDS assessments must also be performed quarterly.

Although the Ministry permits quarterly assessments to be conducted using a slightly abbreviated

version of the MDS, it is the practice of this Employer to use the full MDS on those occasions as

well. Resident observation is carried out over a seven-day period, followed by two further seven-

day periods for the completion of the assessments and Care Plans.

¶ 17

RAPS flow out of the MDS. RAPS are further assessments that are required to be done if

one or more of 18 possible “triggers” (referred to as “problem areas”) are set off in the MDS. RAPs

provide more detailed information about these areas and can lead to increased funding. RAPs

must be completed within the second seven-day period and contribute significantly to the Care

Plans.

¶ 18

All residents must have a Care Plan. The Care Plan is the governing document for all

aspects of a resident’s life in the Home. Care Plans deal with such matters as resident condition,

Page 20 of 75

care, diagnoses, treatment and activities of daily living (ADLs). Information obtained from the

MDS and, especially, the RAPs are used to develop and improve Care Plans.

[43] As further noted at para. 21 of Leisureworld, supra, it is the responsibility of the RAI

Coordinator (and his/her back up in place at most Homes) to implement the new RAI Program,

which Arbitrator Goodfellow described as “play[ing] a critical role in securing the maximum

amount of NPC funding for the Home and the delivery of quality care to the residents [which] are

inextricably linked.” Detailed job descriptions prepared by the MOHLTC and the employer in

Leisureworld, supra, were reproduced and both oral and documentary evidence was received

explaining the responsibilities of the incumbents in the new RAI Coordinator role. The evidence

indicated that the job was in fact only filled by RPNs and RNs, both being recognized as nurses

within the union’s bargaining unit. The employer’s job description did not expressly require the

RAI Coordinator to be an RN.

[44] After reviewing that information, the arbitrator turned to what he defined at para. 45 as

the issue in dispute, which was whether the RAI Coordinators fit within the exclusion of “office

staff” as provided in the scope clause of the collective agreement. The proposition advanced by

the employer was that although being a nurse (i.e., in the form of either an RPN or RN), the work

of the RAI Coordinator was essentially “administrative” in nature, placing it within the office

staff exclusion. The analysis the arbitrator subsequently followed in determining the matter at

para. 31 addressed “two areas”: The first was to observe that while technically being a nurse was

not one of the requirements or qualifications for the job, as a practical matter he concluded that,

“it plainly is”, noting that: “Every single RAI Coordinator and every single back-up RAI

Coordinator employed by this Employer throughout its organization is a nurse” (without

distinguishing between RPNs and RNs). In that regard he also commented at para. 31 that:

The significance of this fact, as expressed in the case law, is that if the job requires one to be a

nurse, “the employer will be hard pressed to argue that a registered nurse in the position is not

engaged in a nursing capacity”: North York General Hospital and Ontario Nurses’ Association

(2004), 78 C.L.A.S. 329 (Davie). Indeed, Arbitrator Davie went on to describe any such

assertion as “implausible”. To similar effect were the comments of Arbitrator Whitaker (as he

then was) in Sunnybrook and Women’s College Health Sciences Centre and Ontario Nurses’

Association, dated November 29, 2000, unreported, observing that, in the absence of “some

strong evidence to the contrary”, a requirement in an employer’s job description that an

employee be a nurse “may be dispositive” of the issue”. Finally, in Shepherd Village, Arbitrator

Page 21 of 75

Jesin cited these and other cases supporting a “very strong presumption” in favour of that same

conclusion.

[45] Although the job description for the position did not require the incumbent to be a nurse

(either in the form of an RPN or RN), the arbitrator found on the evidence that while not engaged

in a “nursing capacity” (in the sense of administering to the medical needs of residents or

patients), the RAI Coordinator did not fall within “office staff” as that phrase is properly

understood because the possession of nursing skills was seen as essential to the ability to perform

the job where some choices (such as in coding answers to some of the 450 questions) required a

certain amount of nursing judgement to properly assess, and the fact that the employer chose to

hire only nurses to fulfill that responsibility supported the arbitrator’s conclusion at para. 33 that

the employer: “believes that it derives some unique value from having only nurses in the role and

the value has something to do with the skills, knowledge, training and judgment of nurses as

nurses.” The importance of this qualification to the proper satisfaction of the responsibilities of

the position of the position was chronicled as follows at para. 36 (which I found to have equal

application to the evidence that I heard in the case before me, described below):

The RAI Coordinator must ensure that the assessments are completed accurately,

comprehensively, and in a timely manner: the more comprehensively the better, both from a

funding and care perspective. Nothing is to be left out or under-reported. And, as noted, the time

frames for completion are short, with financial consequences for failing to meet them. Standing at

the apex of this process is the RAI Coordinator. The RAI Coordinator is required to

understand and operationalize each and every aspect of the RAI system, including, most

importantly, the MDS assessment process. As such, the RAI Coordinator is constantly

interacting with those whose primary responsibility it is to deliver care to the residents, but

who must also find time to complete their portions of the assessments, so as to ensure that

the best possible information is obtained and, ultimately, the best resident care provided.

The RAI Coordinator trains the IDT members on the system, answers their questions, and audits

their work.

[Emphasis added]

[46] In assessing the employer’s argument that notwithstanding its exclusive use of nurses as

RAI Coordinators (being both RPNs and RNs having at least three years’ experience) that the

position was properly excluded from the bargaining unit under the category of “office staff” in

the scope clause of the collective agreement, the arbitrator emphasized the onus resided with the

employer to show that relationship which the evidence did not support. Noting at para. 49 that,

Page 22 of 75

“The phrase “office staff” is typically used to describe an employer’s non-managerial, non-

supervisory, personnel that have no involvement in or material relationship to the “production”

work performed within the bargaining unit”, the arbitrator found at para. 50 that as nurses with a

minimum of three years’ experience typically taken from the same Home where they have

previously provided “hands-on” nursing care to the residents, the evidence supported the

conclusion that, “they continue to provide a critical link in the provision of that care”. As such,

the arbitrator held that the employer did not discharge its onus to show that the RAI Coordinator

position fell within the “office staff” exclusion in the scope clause of the collective agreement,

with the result that the union’s grievance was allowed.

[47] Nevertheless, for purposes of the grievance before me (which I will deal with in some

detail below), it cannot be said that Arbitrator Goodfellow’s conclusions in Leisureworld, supra,

stand for any general acceptance that the RAI Coordinator position properly resides within a

bargaining unit that includes RPNs, as opposed to RNs. Or, to the put the matter differently,

since Arbitrator Goodfellow was not specifically called upon to decide a case where the dispute

was between an employer’s assignment of the disputed work to an RN as opposed to an RPN,

where the scope clause of the applicable collective agreement had an express exclusion for

“registered nurses”, as it does in the case before me, it begs the question of how the result in

Leisureworld, supra, might have been different had that in fact been the case; i.e. when the

contest is between an RPN and RN where the assignment of the disputed work is to the RN ( but

not to an RPN). Arbitrator Goodfellow seems to recognize that as a distinguishing factor when

he qualified his decision as follows at para. 53:

For all of these reasons, I conclude that the RAI Coordinators do not fall within the “office staff”

exclusions in the Service Agreements. (In so stating, I would note that neither party made

reference to the fact that the former Diversicare Service Agreement excludes “Registered

Nurses”. It was my understanding, from the evidence of Ms. Walsh, however, that RPNs

were included in that Agreement.) As a result, I hereby declare that the exclusion of RAI

Coordinators from the scope of those agreements, as well as the Nurses Agreements see above),

is in breach of those agreements.

[Emphasis added]

Page 23 of 75

[48] Following up on the foregoing observation, what remains undecided in Leisureworld,

supra, therefore, is how a specific exclusionary provision in the scope clause of the collective

agreement for RNs would affect a challenge of an employer’s assignment of RAI Coordinator

work to RNs only (who may or may not be included within an ONA bargaining unit) as opposed

to RPNs who have bargaining rights under a different (i.e. SEIU) collective agreement or

workplace arrangement, which is really the question now before me.

[49] This question is not specifically addressed in the next decision dealing with a challenge to

an employer’s assignment of work to RAI Coordinators outside of the SEIU bargaining unit,

which is the 2014 award of Arbitrator Tims in Westgate Lodge, supra. That case was a policy

grievance alleging that the employer improperly failed to post the position of a fulltime RAI

Coordinator within the SEIU bargaining unit, demanding as remedy, “all lost union dues,

seniority and full redress, along with meeting with the Union to negotiate a wage and a job

description to be given to the Union” (at para. 1).

[50] Unlike in Leisureworld, supra, the scope clause of the Westgate Lodge collective

agreement recognized the union as the exclusive bargaining agent for all employees while also

providing an express exemption for, among other things, “graduate and registered nurses” and

“persons above the rank of supervisor”. It is noteworthy that while the challenged job posting for

the RAI Coordinator position stipulated that the candidate “hold a current license with the

College or (sic) Nurses of Ontario” (which could apply to both RNs and RPNs), the employer

took the position that the new RAI Coordinator “was “rolled into” the Home’s management

structure “from the start”, and as such, was not included within the SEIU union’s bargaining unit

by virtue of its being within the category of “supervisor (sic) [and] persons above the rank of

supervisor” (at para. 10). However, the union took the position that the new position was not

covered by the managerial exclusion at all, being in actual practice non-managerial work within

the union’s bargaining unit when performed by RPNs. The employer did not assert that the RAI

Coordinator position was excluded from the bargaining unit because it required the qualifications

of a registered nurse (as opposed to an RPN), which wasn’t stipulated as a required qualification

in the job posting.

Page 24 of 75

[51] After reviewing the evidence in the context of the relevant jurisprudence on point, the

arbitrator agreed with the union, thus allowing the grievance. Following the established

jurisprudence, Arbitrator Tims held at para. 87 that, “The determination of whether the position

was a new job in the bargaining unit must be made by reference to the scope clause of the

collective agreement,…”, and went on to conclude that while in a case of this nature the union

bears the initial onus of establishing that the full-time RAI Coordinator position fits within the

inclusion language of the scope clause, which was satisfied on the evidence where that clause

conferred representation rights to the union for “all employees of the Employer at Westgate

Lodge Nursing Home…”, the onus then shifted to the Employer of establishing that the new

position fell within one of the exceptions set out in the scope clause, which in this case it

submitted applied to the managerial exclusion of supervisors and persons above the rank of

supervisor. Notably, the employer did not rely on the RN exclusion in the scope clause to excuse

the RAI – Coordinator position from the union’s bargaining unit, which was not supported by the

evidence, as the arbitrator further explained at para. 112:

To the extent the Employer asserts that the RAI Coordinator is properly excluded from the

bargaining unit on the basis of the RN exclusion, it bears the onus of so establishing. It accepted

the Union’s argument that the exclusion of RNs is not based on the qualification of an

incumbent and that an otherwise included position is not excluded because the incumbent

is a qualified RN. It relied upon the evidence of Ms. Morrow that Ms. Wood “uses nursing skills”

in support of its argument that the RAI Coordinator position was properly excluded. Such

argument was advanced, however, in the context of acknowledgement from the Employer

that Ms. Wood was not employed in a nursing capacity and that nursing skills were not

required in and “not important” for the RAI Coordinator position.”

[Emphasis added]

[52] Having regard to the evidence and the foregoing positions taken by the employer on the

matter, the arbitrator held on the relevant contractual language at para. 113 that the employer had

not satisfied its onus to demonstrate that the RAI Coordinator position held by Ms. Wood (the

incumbent in the position) was excluded from the bargaining unit because the scope clause

excludes “graduate and registered nurses”. However, that conclusion raises the question of what

the outcome might have been had the employer properly exercised its managerial rights to

stipulate a requirement that the RAI Coordinator be qualified as a registered nurse in the

organization of its workforce, which is more the issue before me. As that was not the case, on the

Page 25 of 75

evidence indicating (at para. 129) that the RAI Coordinator position held by Ms. Wood did not

exercise managerial or supervisory functions at the time of the grievance, the arbitrator found (at

para. 130) that the employer failed to satisfy its onus to demonstrate that the position fell within

the exclusions enumerated in the scope clause.

[53] The final arbitration award in this stream of authority covering the RAI Coordinator

position is Sienna Senior Living, supra, in which Arbitrator Goodfellow addresses the remedial

question of the appropriate wage rate for the RAI Coordinator position after determining in his

earlier Leisureworld, supra, decision that, in the circumstances of that case, the position fell

within the SEIU’s bargaining unit as a “new classification”. Where the parties could not agree

upon the appropriate wage rate for that position, the arbitrator determined on the evidence

submitted that the RAI Coordinator role was entitled to an hourly rate increase of $3.74 over the

RPN rate of $25.61 resulting in the total hourly compensation of $29.35 for the greater

responsibilities of the job, representing an approximate 14.6% increase for the additional

responsibilities involved and importance of the role to the nursing homes.

[54] The foregoing cases addressing the controversy in the nursing home industry on the

question of the proper placement of the new RAI Coordinator position within or outside of any

bargaining unit since the introduction of that position in or about 2009, leads me to the following

general analytical conclusions:

(a) The contractual language matters. The arbitrator is directed to consider all relevant terms

of the collective agreement. That will typically focus initially on the precise details in the

scope and/or recognition clause. It is also important to consider any management rights’

provisions, that usually vest in management the exclusive right to, among other things,

direct and control the work and operation of the Home, which often brings with it the ability

to stipulate the qualifications for and precise details of the work to be performed, subject to

any contractual restrictions on that ability.

(b) To the extent the scope clause recognizes a union’s exclusive right to represent “all

employees” of the employer, the union discharges its initial onus of demonstrating that the

position falls within its bargaining unit where it shows that the incumbent satisfies the

definition of “an employee” (which is a low hurtle to jump).

Page 26 of 75

(c) To the extent the scope clause then itemizes specific exemptions to the “all employee”

unit, the onus shifts to the employer to demonstrate that the position falls within one or

more of the enumerated exceptions.

(d) In discharging that onus, the facts matter – indeed they are critical. The arbitrator must

consider all relevant evidence which will often include details of the job description and/or

posting established by the employer, and specifics of the work actually performed, with a

view to determining whether those facts support the conclusion that the position falls within

a contractually enumerated exclusion or exclusions.

(e) Finally, although not explicitly dealt with by the forementioned arbitration decision, there is

a contractual presumption that in exercising any discretion it may have in establishing the

qualifications, duties and responsibilities of the RAI Coordinator (or in any position for that

matter), the employer will act reasonably and in good faith. (See Re K-Bro Linen Systems

Inc. and Teamsters Local Union 847 (Improper Payment for Drivers), (2015), 262 L.A.C.

(4th) 425 (Ont. Arb.) (Luborsky) and Bell Canada and Unifor, Local 34-O, 2016

11537 (ON LA) (Surdykowski).)

V.

Review of the Evidence Presented

[55] Thus, in the context of the foregoing review of the arbitral jurisprudence touching on the

specific question of the proper placement of the RAI Coordinator position within or outside of

the Union’s bargaining unit, I now turn to a comprehensive review of the facts presented by the

parties in the case before me.

[56] In summary, the Union claims that the duties of the RAI Coordinator fall within the

traditional role of the RPNs at this and other provincial LTC Homes, which they have done in the

past and/or are capable of, and as such are among “all employees” of the Employer that fall

within the Union’s bargaining unit.

[57] The Employer takes the position that the essential activities of the RAI Coordinator (in

contrast to employees who have recording or “charting” responsibilities which can cross multi-

disciplinary lines), have traditionally been among the duties of an RN who has also been

connected in some manner to the management or administration of the Home, noting also that the

Employer requires the RN qualification of the any person(s) fulfilling the RAI Coordinator role.

Where article 2.01 of the collective agreement (entitled “Scope and Recognition”) lists

Page 27 of 75

“registered nurses” among its exemptions to inclusion in the Union’s bargaining unit, notably

without stipulating that the registered nurse must also be “engaged in nursing capacity” (or

qualified in any other way), the Employer maintains it is sufficient to bring the RAI Coordinator

within that exemption by the requirement for an RN qualification outside of the Union’s

bargaining unit.

[58] Over a period more than three years³, I received detailed testimony from three Employer

and two Union witnesses, and through them or on consent, hundreds of pages of documentation

and volumes of arbitral authorities, which I have carefully studied in considering the parties’

arguments and preparing these Reasons.

[59] The parties agreed to hear from the Employer’s witnesses first, followed by the Union’s

representatives, without prejudice to the Employer’s preliminary objection or affecting any

question of the appropriate onus on the Employer with respect to its jurisdictional challenge; and

without altering the shifting burden the Union and/or Employer may carry on different aspects of

the merits of the dispute arising out of the Employer’s assignment of the RAI Coordinator work

outside of the Union’s bargaining unit.

(a)

The Employer’s Evidence

[60] The Employer presented testimony from Ms. Brenda Ohm, who at the time of her

evidence was the Home’s “Administrator”; Ms. Pam Campbell, the “Co-Director of Care and

RAI Coordinator” commencing April 11, 2016, up to and including the date of her testimony,

and Ms. Barb Bryan, identified as the “Care Service Coordinator for Quality” of the LTC Home’s

operator, Jarlette Health Services.

[61] Their essential evidence is as follows.

³This was extended in part by issues related to the outbreak of COVID – 19 amid the proceedings, but also because

of the arbitrator’s ongoing illness that the parties were generally aware of, for which he expresses his appreciation for

their consideration and forbearance.

Page 28 of 75

(i)

Brenda Ohm

[62] Ms. Ohm began employment at the LTC Home in 1984 as its Activity Director, ascending

to the position of Administrator in 2001, which she held continuously to the date of her

testimony, having 33 years of total service. Throughout that period, she experienced many

changes in the LTC sector, particularly in the development of what she characterized as tighter

government control through updated legislation and regulations mandating strict standards of

care and accountability for all long-term care institutions in the province. She characterized those

government standards as “extremely intrusive” dictating the day-to-day operations of all the LTC

Home’s activities.

[63] Ms. Ohm described the Alberta Classification System in place at the Home before the

introduction of the RAI Program in 2009, which I need not recount in any detail except to note

that the description of that system summarized above in Shepherd Village Inc., supra, was

consistent with her testimony on the matter. By 2003, all staff involved with resident care

(including the RNs, RPNs, Personal Support Workers (‘PSW”), physiotherapists, dietary

supervisor, activity director, clinical team members, etc.,) documented their observations

electronically via a system known as “point-click-care”, which was a computerized recording

program on which the staff were trained. An interdisciplinary team of staff was thus engaged in

charting activities within their sphere of interaction with the resident for the purpose of

completing resident assessments. Ms. Ohm testified it was her responsibility to review the

assessments and audit their work, to ensure accuracy, which was essential to obtaining the

appropriate grading under the Alberta Classification System (resulting in the Case Mix Index or

“CMI”) to ensure the maximum funding for the Home. This information was also used to

develop a Care Plan for each resident, intended to identify individual challenges and establish

goals to enhance their quality of care, which were reviewed every three months or earlier in the

event of any significant change in the resident’s condition.

[64] Many of the basic features under the Alberta Classification System continued when the

RAI Program was introduced in 2009, although with considerable enhancement and greater

Page 29 of 75

precision of detail. In that regard, I received extensive information on the details of the RAI

Program from both Employer and Union witnesses, primarily in connection with the areas of

inquiry and questions set out in the extensive Resident Assessment Instrument User’s Manual

filed by the parties, which I need not repeat except to note that the evidence I received describing

the particulars of the RAI Program was substantially the same as summarized by Arbitrator

Goodfellow in Leisureworld, supra, at paras. 11 – 18, reproduced above.

[65] Ms. Ohm testified that with the rollout of the new RAI Program, she participated in an

all-day introductory training session in May 2009 in London, Ontario conducted by the

MOHLTC that all administrators of provincial nursing homes were required to attend, along with

the Home’s “Co-Director of Care” (Co-DOC) identified as Ms. Pat Barker, who was also a

registered nurse. Ms. Barker was the first person selected by the Home as its RAI Coordinator,

incorporated with her other duties.

[66] After that initial session, Ms. Ohm attended “RAPS and Outcomes training” in December

2009 (also at the London training facility) along with Ms. Shirley Hearn, who was an RPN

member of the Union’s bargaining unit. Both Ms. Ohm and Ms. Hearn received Certificates

confirming their completion of “RAI Outputs & Reports and Data Quality Management

Training” and “Resident Assessment Protocol Training”, which was directed to teaching proper

coding of observations under the RAI Program. Ms. Ohm testified that Ms. Hearn was selected to

participate in this training because the Home’s Director of Care was medically ill at the time and

its Co-Director of Care was similarly unavailable, while Ms. Hearn had expressed an interest and

was then primarily working in “charting” duties at the Home. (Ms. Ohm also testified that she

didn’t need to use this training in her role as Administrator other than to give her a better

understanding of the coding protocols, which was more directed to the person(s) actually charting

the observations on the residents using the new RAI Program, which ultimately became part of

Ms. Hearn’s role.) Prior to Ms. Barker taking on the role as the Home’s first RAI – Coordinator,

Ms. Ohm testified that she was required to complete three days of training at the London facility,

which was focused on coordinating the RAI Program at nursing homes, that neither Ms. Ohm nor

Ms. Hearn received. Ms. Ohm was not aware of any other person taking that training to become

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the “RAI – Coordinator Backup” complementary to Ms. Barker in that role. Her evidence was

that Ms. Barker continued in the position as the Home’s only RAI Coordinator until the spring of

2011.

[67] Thereafter, the Home assigned the RAI Coordinator function to Ms. Patricia Campbell,

who had been employed at the Home beginning in 1992 as a registered nurse on one of the floors

until 2004, when she became its Director of Care with responsibilities for overseeing the

activities of approximately 60 staff members working as PSWs, RPNs and RNs. Ms. Campbell

ceased as the DOC in April 2011 when she was reassigned to the fill the role of Co-Director of

Care and RAI Coordinator, which she held until April of 2016 when she retired. During Patricia

Campbell’s tenure as RAI Coordinator the Home hired Ms. Debbie Sullivan as Backup RAI

Coordinator, who was also a registered nurse.

[68] Ms. Patricia Campbell was succeeded as Co-Director of Care with responsibility for the

RAI Coordinator function by Ms. Pam Campbell in or about April 2016. She is also a registered

nurse. Ms. Ohm testified that Ms. Pam Campbell completed three-days of training from an

organization known as “MED e-care”, which was different from the initial session put on by the

MOHLTC when the RAI Program was introduced in 2009. She received a certificate entitled,

“Credentialed MDS Resident Assessment Coordinator” which also stated that its holder “Has

successfully completed the Credentialing program and is recognized as a RAI Coordinator.” Ms.

Sullivan was succeeded as Backup RAI Coordinator in July of 2017 by Ms. Hanna Churchill,

who received the same RAI Coordinator training. Ms. Churchill is also a registered nurse

working as one of the Home’s Co-Directors of Care. The person performing the Backup RAI

Coordinator function is only called upon in the absence of the regular RAI Coordinator (usually

due to vacation), with responsibilities to ensure that all sections of the RAI Assessments

(required by the RAI User’s Manual) have been completed and to close the data on those

residents at the end of their assessment periods.

Page 31 of 75

[69] According to Ms. Ohm, Ms. Hearn has never worked as an RAI Coordinator or Backup

RAI Coordinator; not even temporarily. Nor has Ms. Hearn ever received the three days of

training mandated by the MOHLTC for RAI Coordinators and their Backups.

[70] Ms. Ohm was also asked to explain “AIS Training”, in connection with the RAI Program.

She testified that separate from the three-day course that Ms. Pam Campbell and Ms. Churchill

received through MED e-care, all registered staff must complete certain web-based courses

mandated by the MOHLTC referred to as “AIS Training”. These courses are focused on the

requirements under the RAI Program for the staff involved in the care and recording of the

diverse resident observations in their activities of daily living and needs as itemized in the RAI

User’s Manual which is used to determine the level of assistance the resident requires with

respect to specific care needs. There are eight such on-line courses covering topics under titles

that include, “Overview – Coding”, “Outcome Scales”, Planning with RAPS” and “Mastering”

the reporting expectations for different portions of the RAI Program (corresponding to the

applicable sections of the RAI Manual). Ms. Ohm testified that Ms. Pam Campbell was required

to complete all eight components of the AIS training as the RAI Coordinator. (And she was in

turn required to train other staff members on different aspects of the RAI Program in her capacity

as the RAI Coordinator.) This is in contrast with the registered staff working on the floors

(including RNs and RPNs), who only need complete three of these training components. (Ms.

Ohm noted that this requirement had change for RNs and RPNs in the year that she testified at

the arbitration hearing requiring RNs and RPNs working on the floors to complete only one AIS

training component.)

[71] According to Ms. Ohm, Ms. Hearn has only been required complete the same three AIS

training components as the other registered staff working on the floors, while acknowledging that

Ms. Hearn completed one additional training session in 2016 (as encouraged by the then RAI

Coordinator) for a total of four such courses that were identified as: “Overview – Coding”,

“Mastering…Planning with RAPS”, “Mastering…Outcome Scales”, the extra course dealing

specifically with one section of the RAI Program referred to as “Section G”. Ms. Hearn has

never been required to complete all eight components of AIS training.

Page 32 of 75

[72] Focusing specifically on Ms. Hearn’s duties during the relevant timeframe (who later

gave extensive evidence on behalf of the Union), Ms. Ohm testified that Ms. Hearn was an RPN

(and as such within the Union’s bargaining unit) who worked nine shifts in every two-week

period. Two of those nine shifts were normally as a typical RPN on the floor⁴, documenting the

care provided to residents on such things as: administration of medication, counting of narcotics,

providing treatments as prescribed to residents, processing doctors’ orders, addressing incidents

of various natures such as falls and behavioural issues with residents, “head to toe” assessments,

pain and continence assessments, among others, all of which was documented by Ms. Hearn

through specified charting documentation provided by the “point-click-care” and/or the RAI

Program (to the same extend as other staff similarly engaged).

[73] For the remaining seven shifts in a normal two-week cycle (alternating between days and

evenings), Ms. Hearn worked specifically as a “charting nurse” or “charting RPN”. As the RPN

charting nurse, Ms. Ohm testified that Ms. Hearn followed a schedule created by the RAI

Coordinator of residents in their observation period and she completes the Material Data Sheets

(MDS) by taking the relevant information from the clinical assessments that have been

completed on the resident, entering that information into the computer program, which is referred

to as the RAI Assessment. That assessment will trigger “RAPS” which is used to help develop a

Care Plan for the resident. Ms. Ohm also identified several other RPNs assigned to charting

nurse duties in various circumstances (on a variety of shifts identified as “charting shifts” by the

designation “c” on the chart which was in place before and after the introduction of the RAI

Program), including Deb Stiles who also testified in these proceedings. As charting nurses, the

RPNs’ work was consistent with the then current job description for the position covering all

RPNs at the Home, reproduced in relevant part below:

Registered Practical Nurse

Position Summary:

Under the direction of the Registered Nurse, the Registered Practical Nurse is responsible and

accountable for providing optimum care to promote the wellbeing of each individual resident. The

4

The evidence nevertheless also indicated that Ms. Hearn was sometimes pulled from her duties as a “charting

nurse” (on the other seven shifts) where the Home was working short staffed, in which case Ms. Hearn would

typically be reassigned from charting to one of the floors.

Page 33 of 75

Registered Practical Nurse participates in the assessment, delivery and evaluation of nursing

services to meet the individualized needs of the residents.

…

Qualifications:

 Must possess a current Certificate of Registration with the College of Nurses of Ontario.

O Reg. 79/10, s. 46

 …

 Computer literate

 …

Main Duties and Responsibilities:

 Performs nursing skills in accordance to the standards of nursing practice as outlined by

the College of Nurses

 Assists the Registered Nurse in contacting and facilitating medical services, other

professional services, support services and external agencies ensuring continuity with

community linkages

 Ensure nursing staff perform assigned tasks and duties and reports observations to the

Registered Nurse

 Performs delegated tasks safely and effectively

 Participates in interdisciplinary conferences for assessing, planning and evaluating

resident care needs

 Works cooperatively with students and volunteers to enhance resident care and foster

community linkages

 Participates as required in the formulation and review of policies and procedures, goals

and objectives

 Provides care to residents following an established plan of care

 Observes and reports resident health findings to the registered staff

 Completes resident records accurately to reflect the resident care provided

complying with legislative and Home requirements

 Participates in the orientation process for residents, students, volunteers and nursing

personnel

 Participates as required on various Home and departmental committees

 Works cooperatively with peers and supervisors using the CQ/Risk Management process

to evaluate and ensure follow-up

 Uses supplies and equipment effectively and efficiently

 Shares responsibly for the care of the environment and equipment of the Home; and the

personal belongings of the residents

 Promotes wellness as a concept of living

 Protects own health and health of others by adopting safe work practices, reporting

unsafe conditions immediately and attending all relevant in-services regarding

occupational health and safety

 Follows all roles and responsibilities for employees and employers as legislated under the

Ontario Occupational Health and Safety Act

 Must actively participate in ongoing educational opportunities and transmit information to

the rest of the nursing staff

…

Page 34 of 75

[74] In cross-examination, Ms. Ohm conceded she had never herself performed in the role of

Co-Director of Care, which incorporated the duties of the RAI Coordinator (while maintaining

she was aware of the role from her many years of experience). She also agreed that the charting

shifts were generally assigned to the same RPNs at the Home, with most of those shifts going to

Ms. Hearn, which Ms. Ohm denied was because of any more training in the RAI Program that

she had than other RPNs, but rather ascribed to the fact that Ms. Hearn had “shown an interest”

in charting.

[75] Ms. Ohm also clarified in cross-examination that there were two Co-Directors of Care,

identified at the time of her testimony as Pam Campbell and Hanna Churchill. They are both

RNs, which is a qualification considered necessary by the Employer to fulfill the requirements of

their jobs, which in the Employer’s view benefits from the exercise of their greater nursing skills

and judgment than RPNs to their assigned tasks. It was Ms. Ohm’s evidence that Ms. Churchill

is primarily responsible for the education, orientation, recruitment and hiring of nursing staff; and

is the lead for the Home’s “Responsive Behaviour Committee” that works with internal and

external behavioural support teams (“BSOs”) that respond to behavioural issues with elderly

residents. Ms. Churchill works full-time hours while Ms. Pam Campbell works a part-time

schedule. Both incumbents exercise their nursing skills and judgment as RNs in satisfying their

responsibilities, according to Ms. Ohm.

[76] In the case of Ms. Pam Campbell whose responsibilities included acting as the RAI

Coordinator, Ms. Ohm maintained during cross-examination that an important part of her job is

to ensure that the information gathered on the individual residents during their assessment

periods from the 450 questions under the RAI Program and submitted to CIHI was of good and

proper quality, which was essential to maximizing the Home’s funding that from its perspective

required the superior nursing skills and judgment of an experienced registered nurse.

[77] Under close questioning, Ms. Ohm confirmed that while a variety of others that included

RPNs, clinical, dietary, recreational, etc., staff did the initial coding to complete the assessments

that applied to their sphere of interaction with the resident under the RAI Program, which

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included the “charting nurse” activities of Ms. Hearn, she explained Ms. Pam Campbell’s role as

RAI Coordinator was to educate others on proper coding, audit their work, close the resident files

and submit them to CIHI once all assessments were completed during the observation period

after checking for accuracy and completeness, and to subsequently address inquiries from CIHI

and resolve any of their concerns over the suitability of that data. Given that Ms. Pam Campbell

worked part-time hours of three shifts per week, Ms. Ohm estimated that 80% of Ms. Campbell’s

time was spent on RAI – related activities.

[78] Ms. Ohm also testified that the remaining 20% of Ms. Pam Campbell’s work as Co-

Director of Care was then spent attending management/staff meetings, morning report on floors,

and any follow-up that was required in the event of the absence of one of the nurse managers that

could include filling in as a nurse manager herself where necessary. Ms. Ohm consequently

denied the Union’s contention that “almost 100%” of Ms. Pam Campbell’s work consisted of

RAI – related duties. She further maintained that the 20% of Ms. Pam Campbell’s workload as

Co-Director of Care required the exercise of nursing judgment (as opposed to the Union’s

suggestion of being entirely administrative in nature), because the meetings that she attended

were typically related to residents generally and individual resident care issues. As an example,

Ms. Ohm cited the situation where morning reports identified a particular resident experiencing a

change in condition, in which case Ms. Pam Campbell would be expected to investigate the

change in status and update the resident’s Care Plan accordingly.

[79] At the conclusion of her cross-examination, Ms. Ohm was confronted with an e-mail

communication that she wrote to Union staff representative Ms. Mana Lindsay dated June 10,

2016, in response to the Union’s request for an explanation of the differences between the work

of Ms. Hearn as an RPN charting nurse and Ms. Pam Campbell’s as the Co-Director of Care in

fulfilling the responsibilities of the RAI Coordinator, reproduced in relevant part below:

As requested,

Shirley Hearn is the charting RPN who is assigned to complete all annual head to toe

assignments, completing annual physical schedule. Going with the lab tech for resident blood

work every Tuesday, completing assessments and care plans for residents in their observation

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period. All registered staff are also to complete assignments and care plans. The charting RPN

is just given more time to do this. There is not a separate job description as they are not required

to do anything more than an RPN would be required to do. In her absence there are other RPNs

who pick up the shifts.

The RAI Coordinator (Co-DOC) is responsible for teaching registered staff assessments, care

planning and AIS testing for all staff requiring Re: Ministry Regs. After observation period is

complete, she reviews all sections, signs off, dates and care plans it. Notify CIHI of internal

moves, hospital stays and admissions. Completes all restorative assessments, notes and

calculates minutes and evaluate restorative plan. Assign and set up significant change with input

from appropriate people. Complete within 92 days specific sections. Prepare and open each

assessment and correct errors. Create schedules for quarterly and annual assessments. Inform

everyone of the new admissions and due dates. Completes audits and completes all batches and

sends to CIHI and makes any corrections needed.

[80] Finally, Ms. Ohm confirmed in cross-examination that none of the Co-Directors of Care

who had filled the role of RAI Coordinator, which since the introduction of the new RAI

Program included Ms. Pat Barker, Ms. Patricia Campbell, and Ms. Pam Campbell to the date of

Ms. Ohm’s testimony, were members of the Ontario Nurses’ Association or within the ONA

bargaining unit at the Home, notwithstanding that they all were registered nurses.

(ii)

Pam Campbell

[81] At the time of her testimony, Ms. Pam Campbell was the incumbent Co-Director of Care

with responsibility as the RAI Coordinator since April 11, 2016, normally working three shifts

per week. By then she had been a registered nurse in good standing with the College of Nursing

for 40 years, having worked at several health facilities and services providing acute, palliative

and long-term care since the early 1980s. In those roles she regularly worked with a “point-click-

care” computer software program to document her interactions with patients or residents, and

soon after starting at the Southampton Home, she completed three days of training on all aspects

of the RAI Program in qualifying for as the Home’s RAI Coordinator. The job description for

the Co-Director of Care in effect at the time of Ms. Pam Campbell’s employment (to at least the

date of her testimony) provided in relevant part as follows:

Co – Director of Care

Position Summary:

Page 37 of 75

Under the direction of the Administrator, the Co-Director of Resident Care is responsible and

accountable for ensuring the provision of optimum care to promote the well-being of each

individual resident. Ensures and provides the delivery of nursing services to meet the assessed

needs of the residents. Manages and coordinates Home wise programs.

…

Qualifications:

 Registered Nurse with current Certificate of Registration with the College of Nurses of

Ontario – O. Reg. 79/10, s. 46

 Successful completion of or enrollment in Long Term Care Senior Management or equivalent

 2 years’ experience in Long Term Care (Gerontology) preferred

 Must demonstrate an active interest in ongoing education

 Must be computer literate

Hours of Work:

 Available 7 days per week

 Flexible hours

Main Duties and Responsibilities:

 Performs nursing skills in accordance to the standards of nursing practice as outlined by

the College of Nurses

 Assesses, implements, evaluates, reports and documents actions to affect positive

outcomes related to the residents’ health

 Responsible and accountable for the coordination, implementation and overall management of

Home wide programs such as, but not limited to:

o

Skin care

Behaviour management

Infection control

Back care

CQ/Risk Management

Quality of Life

Health and Safety

 Perform delegated tasks safely and effectively

 Ensures nursing staff perform assigned tasks and duties

 Protects own health and health of others by adopting safe work practices, reporting unsafe

conditions immediately and attending all relevant in-services regarding occupational health and

safety

 Must ensure compliance with he provisions of the Occupational Health and Safety Act

 Follows all roles and responsibilities for employees and employers as legislated under the Ontario

Occupational Health and Safety Act

 Participates as required in the formulation and review of policies and procedures, job routines,

performance appraisals, goal and objectives

 The CQI/Risk Management process will be used to evaluate and ensure follow-up

 Responsible for resident assessment data quality and submission

 Responsible for selection, evaluation, promotion/termination of staff

Page 38 of 75

 Responsible for coordination and facilitating interdisciplinary care conferences and ensuring

implementation of outcomes

 Required to promote wellness as a concept of living

 Responsible for coordinating and ensuring an effective communication system promoting team

unity thereby enhancing the resident’s quality of life

 Promotes strong community linkages for sharing of resources

 Must actively participate in ongoing educational opportunities and promoting the concept of

continuing education throughout the home

 Ensures the accurate completion of resident’s records reflecting the resident health status

and care provided complying with legislative and Home requirements

 Participates in the orientation process for residents, students, volunteers and nursing personnel

 Participates as required on various Home and departmental committees

 Ensures the effective and efficient use of supplies and equipment

 Works cooperatively with students and volunteers to enhance resident care and foster community

linkages

 Maintain formal linkages with educational bodies and endorses the practice of research to promote

the development of nursing and medical services

 Must participate in local and provincial committees

 Provides regular reports on programs and initiatives to the Director of Resident Care

Special Demands:

Behavioural:

 Participates as a team player and cooperates with other departments

 Must possess patience and tact dealing with resident’s needs, families and dealing with multiple

demands at one time.

 Must be organized and able to set priorities

 Must have a genuine interest in the care of the elderly

Ethical:

 Practices in a professional manner

 Respects the rights of individuals

 Demonstrates honesty and integrity in all work dealings

 Maintains confidentiality

Working Conditions:

…

[Emphasis added]

[82] Drawing on her education and judgement from her years of experience as a registered

nurse, Ms. Campbell described her role as RAI Coordinator within the Co-Director of Care job

description, primarily focusing on her responsibilities “for resident assessment data quality and

submission (to CIHI)” and to ensure “the accurate completion of residents’ records reflecting the

Page 39 of 75

resident health status and care provided”. In doing so, Ms. Campbell went through the

“Minimum Data Set (MDS) – Version 2.0” that the Home was required to submit to CIHI for

each resident at least every quarter under the RAI Program, which I need not recount in detail

except to note the different headings or sections of the MDS template under which the

observations of a multidisciplinary team of staff members (including RNs, RPNs, dietary,

physiotherapy, activity, etc.) involved in the care of the resident coded their observations

covering a specified list of individual questions.

[83] These sections demonstrate the depth and diversity of the documentation and coding

process, under the headings: Section AA & A: Identification Information; Section AB:

Demographic Information; Section C: Communication/Hearing Patterns; Section D: Vision

Patterns; Section E: Mood and Behaviour Patterns; Section F: Phyco-social Well-Being; Section

G: Physical Functioning and Structural Problems; Section H: Continence in Last 14 Days;

Section I: Disease Diagnoses; Section J: Health Conditions; Section K: Oral/Nutritional Status;

Section L: Oral/Dental Status; Section M: Skin Condition; Section N: Activity Pursuit Patterns;

Section O: Medications; Section P: Special Treatments and Procedures; Section Q: Discharge

Potential and Overall Status; and Section R: Assessment Information.

[84] While acknowledging she didn’t personally make and code the many observations

required under each of the MDS section headings, as the RAI Coordinator Ms. Campbell testified

that whenever a new resident arrived at the Home, she was responsible for opening the RAI

Program template for that resident and setting up a schedule of their observations starting the

next day, which is shared with the managers and with the RPN charting nurse. Ms. Campbell also

noted she occasionally interviewed residents (to obtain more information on uncertain areas of

the MDS) and that it is her responsibility as RAI Coordinator to review and interpret the

information from the completion of those sheets. In doing so she testified that she used nursing

judgement based on her training and experience as an RN. Time is of the essence in this process

that is calculated from the opening of the initial template for a new resident where the RAI

Program mandates a seven-day period to observe the resident, followed by seven days to

complete entering the resident’s data on the RAI tool, and another seven days to complete the

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care plan, before “you lock up the system” to quote from Ms. Campbell’s testimony. By

“locking up the system”, Ms. Campbell clarified she was referring to her role in checking over

the data for accuracy and completeness, addressing any “gaps” in the data with her own direct

observations, and when satisfied with the data, to clicking a button on the computer program

identified as “lock”, which has the effect of preserving the data on the MDS that remains closed

to further entries except where the RAI Coordinator is required to add something to the data base

at a later date, to correct errors and/or to respond to questions or request for more details from

CIHI after its submission to that agency which is also done by the RAI Coordinator. Subsequent

assessments are required by the MOHLTC on each resident every three months for as long as

they are at the Home, which Ms. Campbell identified as part of her role in publishing a list of

residents to be reassessed every week for posting at each nursing station and dining room,

thereby renewing the seven-day cycles of observation, collection and transmitting results. In a

quiet month there might be 20 to 25 assessments to complete, but at busier times Ms. Campbell

testified there could be 50 to 60 depending on the turnover at the Home. This schedule is

nevertheless subject to any significant change in a resident’s condition before his or her next

assessment that will trigger a new one and development of a Care Plan.

[85] As between herself and the RPN charting nurse, Ms. Campbell agreed the charting nurse

completes more of the coding for the RAI assessments necessary to complete each MDS

(estimated to be 60% of the total), who she identified primarily as Shirley Hearn, and her back-up

Deb Stiles when Ms. Hearn was absent. But once the information from each section of the MDS

is complete, Ms. Campbell testified she is the only to check it for accuracy and completeness and

“sign off” on that section for eventual transmission to CIHI when all sections were closed, at

which time the entire RAI documentation and accompanying care plan are considered to be

“locked”, that she then electronically submits herself. Ms. Campbell is also the only one who

deals with CIHI after its review of the submission for each resident, correcting errors, and

redressing any of their concerns.

[86] In doing so Ms. Campbell testified that she is sometimes engaged in “detective work”, in

the sense of dealing with issues that are not covered by the RAI User’s Manual. This, she

Page 41 of 75

asserted, can be “quite a process”, involving reexamination of all data entries for the resident,

sometimes deleting four or five assessments ahead of the one questioned and redoing parts of the

submission, even to the point of speaking directly to the resident and/or staff members involved

in the resident’s primary care, in the course of which Ms. Campbell testified she relies upon her

training, experience and knowledge as an RN, which must be completed in a short timeframe to

comply with all MOHLTC regulations. Failure to do so could affect the funding awarded to the

Home, particularly where the consequence of the late submission prevented the Home from

receiving credit for the additional nursing care and assistance it was providing to the resident,

resulting in funding at a “base rate” for that resident, instead of an enhanced level which it would

otherwise be entitled. Hence the checking of the RAI – MDS for accuracy and completeness,

submission and responding to questions from CIHI, in a timely manner is considered essential to

the financial health of the Home, according to Ms. Campbell.

[87] Thus, it is in the Home’s interest to conduct training of all staff involved in the coding

process (which includes RPNs and RNs), which Ms. Campbell confirmed as part of her mandate

as RAI Coordinator. Consequently, all new staff involved in coding are trained by Ms. Campbell

and registered staff must pass an annual test at the 80% proficiency level (failing which they are

not permitted to perform coding functions). Neither Ms. Hearn nor Ms. Stiles, as charting

nurses, conduct testing of other staff, although they are required to pass the same testing

requirements.

[88] Furthermore, every month the head office of the Jarlette Health Services conducts an

education conference with RAI Coordinators at its various locations (via telephone) to update

and review practices and to supervise an audit of select aspects of the Home’s RAI Program

compliance, providing an additional check of its proficiencies with a view to maximizing each

Home’s receipt of available government funds for the Home. None of these responsibilities fall

within the duties of the RPN charting nurses and/or Ms. Hearn or Ms. Stiles when they work in

that capacity.

Page 42 of 75

[89] In conclusion, Ms. Campbell expressed the view that as RAI Coordinator she uses her

nursing skills, not in the sense of hands-on work with a resident, but rather in applying her

clinical background, knowledge and judgment as an experienced RN to the essential

requirements of the position.

[90] During cross-examination, Ms. Campbell confirmed that she only works three shifts per

week, Monday, Tuesday and Wednesday, and when confronted that her time is almost entirely

spent on RAI Coordinator responsibilities she responded, “yes and no”, testifying that she is also

available in her capacity as Co-Director of Care to attend the morning rounds with other

managers and also participates in monthly management meetings on issues affecting the running

of the Home (outside of any concerns over the RAI Program).

[91] In re-examination, she clarified that by “yes and no” she meant that she and Hannah

Churchill (the other Co-Director of Care) take turns in an on-call rotation, during which each is

responsible for staffing and any other issues that come up affecting Home operations, for a week

at a time every two weeks. She testified that while on-call she is available (and has) filled as an

RN or RPN where there have been shortages on the floor. In response to close Union

questioning, she confirmed that in the week prior to her testimony she acted as Charge Nurse on

an evening shift due to RN staff shortages while also acknowledging that that included a member

of the ONA bargaining unit having representation rights for RNs at the Home.

[92] Ms. Campbell also confirmed in cross-examination that Shirley Hearn, in her capacity as

charting nurse, has conducted some training of staff on proper coding in the past, although the

extent of that activity was not described. While agreeing that general nursing skills (which both

RNs and RPNs would have) was important, she maintained that she relied on her training and

experience as an RN in making decisions on things related to the RAI Program that Shirly Hearn

might not be aware of, while offering that Shirly Hearn “has excellent judgment as an RPN”.

(iii) Barb Bryan

Page 43 of 75

[93] The final Employer witness was Ms. Barb Bryan who graduated as a registered nurse in

1982 and has been working since 1983 in various capacities with Jarlette Health Services,

including as an RAI Coordinator (for LTC Homes other than Southampton). At the time of her

testimony, she held the position of “Care Services Coordinator – Quality” with corporate

oversight of all 14 LTC Homes in the Jarlette chain.

[94] In her position, Ms. Bryan is responsible for assessing and giving advice on quality

improvement and risk management issues, and for overseeing staff education in collaboration

with education leads at each of the Jarlette Homes, including on the RAI – MDS Program. She

conducts audits of the electronic documents submitted by the Homes to CIHI to ensure

completeness. And she convenes monthly group virtual meetings with all RAI Coordinators for

educational purposes to promote overall quality control.

[95] Ms. Bryan explained the expectations that Jarlette has of the work of RNs compared with

RPNs at its facilities. She testified RNs are in charge when more senior leaders are not at the

Home; they all have similar requirements under the College of Nursing standards and abilities to

respond to residents having an acute change in condition or who becomes unstable, there being

significant overlap in the roles of RNs and the Home administration which she described as very

collaborative in their approach as part of a single registered nursing team.

[96] While the RPNs are bound by the same College of Nursing standards and are skilled in

their areas of responsibility that includes the ability to properly identify and code the RAI

Assessment charts, Ms. Bryan suggested that RPNs are not as knowledgeable or experienced as

RNs for determining “what is happening with a resident who may be in distress” and taking

appropriate interventions to address such concerns. Thus, in properly representing the true

condition of the resident and in responding to inquiries from CIHI on matters related to the

general and specific recording of a resident’s treatment and/or condition, the Employer has

arrived at the opinion that the superior qualifications and knowledge of the RN are more

conducive to ensuring the high quality and accuracy of the CIHI submission.

Page 44 of 75

[97] Against that backdrop Ms. Bryan described the practice at the Jarlette Homes in

connection with the staffing of the RAI Coordinators with only RNs, who are viewed as an

important element in each Home’s desire to achieve the maximum government funding available

to service the requirements of their resident population. The old Alberta Classification System

relied mostly on written or electronic progress notes in a narrative form, having a wide variety of

individualized input by all registered staff involved in that process that was assessed by outside

inspectors only once per year.

[98] However, with the introduction of the RAI – MDS Program, Ms. Bryan gave examples

intended to support the preference for the RN level of skill in fulfilling the RAI Coordinator’s

role.⁵These examples included several instances where the current duties of the charting RPN

nurse represent the continuation of their charting responsibilities under the old Alberta

Classification System, albeit now with more technically exacting detail intended to remove much

of the “guesswork” under the old charting procedures Nevertheless, Ms. Bryan also noted that

all registered staff, including the RPNs, were expected to maintain records in a variety of formats

during a charting shift (of the kind engaged in by Ms. Hearn and Ms. Stiles, described below).

She testified that the responsibility of the nurse (whether RN or RPN) was the same when

creating an entry on an RAI Assessment and when she was documenting a narrative entry in the

chart under the previous Classification System.

[99] In cross-examination, Ms. Bryan conceded that she had never actually held the position as

an RAI Coordinator at the Southampton LTC Home, while testifying that she worked very often

with Patricia Campbell and Pam Campbell in auditing and maintaining the accuracy of RAI

reporting at Southampton.

5

In this regard, Ms. Bryan gave practical examples in such matters that included the dispensing of medication,

greater abilities to communicate and evaluate precise concerns related to residents, and issues regarding continence,

pain and wound assessments, where the superior clinical knowledge, skills and experience of the RNs was

considered an advantage compared with RPNs only, which was not to suggest that RPNs were not qualified or

competent to make observations as a charting nurse within their more limited sphere of knowledge and experience.

Page 45 of 75

[100] Ms. Bryan also reviewed the more recent history related to the RAI Coordinator position

at the Southampton Home by the time of her testimony. She testified that in November of 2019,

Ms. Pam Brown retired and was replaced by Ms. Alexis Brown, who is also a registered nurse,

although not recognized as a member of the ONA bargaining unit. During disruptions caused by

the outbreak of COVID – 19 in Ontario beginning in or about March of 2020, Ms. Pam Campbell

returned from retirement to reassume the role of Temporary RAI Coordinator until November

2020. Shirley Hearn, the RPN who had been doing much of the charting nurse work, also retired

at the end of June 2020. It was not clear who had replaced Ms. Hearn (and Ms. Stiles who has

also retired) in the charting RPN role after that.

[101] Given the disruption in operations caused by COVID – 19 pandemic protocols, including

changes to the reporting requirements of CIHI intended to relieve some of the stress on the

nursing homes during that time, this latter evidence appears to have limited value to the

grievance except to note the Employer has always maintained that the person holding the RAI

Coordinator position have the RN qualification.

(b)

The Union’s Evidence

[102] The Union presented evidence from two witnesses, Ms. Shirley Hearn and Ms. Deb

Stiles, who worked as charting RPNs. By the time they testified, both had retired from their

employment.

(i)

Shirley Hearn

[103] Ms. Hearn worked at the Home from December 1989 until her retirement in June 2020.

While hired as an RPN (for which she is duly qualified), she initially worked as a PSW because

there was no RPN time available. She eventually shifted into a regular RPN job on a part-time

basis until moving to a full-time RPN role sometime later.

Page 46 of 75

[104] As an RPN, Ms. Hearn was typically assigned to shifts on a floor, where she spent much

of her time pushing a “medications cart” from room to room and administering the medications

ordered for each particular resident, all the while documenting her activities on a paper chart,

which later evolved into electronic recording through “point-click-care” or by some other means.

She confirmed that all nursing staff (including RNs and RPNs) were expected to accurately

document their encounters with the resident, which was the requirement under the Classification

System in place prior to the introduction of the RAI Program in 2009. She further acknowledged

that she occasionally worked as a “charting nurse” with responsibilities to update the medical

records under the previous Classification System, requiring that she document information

(which she referred to as “coding”) to ensure that the chart for each resident was accurate and up

to date, which would be relied upon by the government inspectors assigned annually to review

this documentation from which the Home would be assigned a “grade” (from A – G) used to

establish the appropriate funding for the Home.

[105] By that time, Ms. Hearn had already developed an interest in the “charting” function,

during which she was excused from the activities she would otherwise be assigned as an RPN on

the resident floors (including pushing a meds cart and administering to the individual care of the

residents). She testified that under the old Classification System, all registered staff (including

RNs and RPNs) were expected to update the Care Plan for the resident in response to changes in

the resident’s condition. She also she eventually expressed a preference to do charting work as

opposed to working on the resident floors.

[106] Given her interest, Ms. Hearn testified she responded to a posting in the staff room in

2009 inviting staff to be trained on the coding requirements under the RAI Program which was

being introduced in the LTC sector at that time. Along with other RPNs, she received

introductory training in the system from Pat Barker, which was described as “not a big training -

possibly a day to explain the changes that were coming”. She knew Pat Barker was a new staff

member at the time who had been hired to be the Home’s first RAI – Coordinator (and was also

known to be a registered nurse – i.e., RN.).

Page 47 of 75

[107] Ms. Hearn testified that she “enjoyed the research and that type of work” and thus once

she completed the initial training, she asked if she could get more involved in that kind of work.

Consequently, she received “one-on-one” training from Ms. Barker through a “special computer

program” that explained different sections of the RAI User’s Manual (identified as the materials

in Sections B to R covering several parameters being coded for under the new RAI – MDS

protocols). Then she accepted an offer to attend a two-day training course along with Ms. Barker

in London, Ontario, in December 2009, earning two Certificates from the “Long-Term Care

Homes Common Assessment Project”, covering the basic contents of the RAI User’s Manual and

the coding requirements under that system.

[108] Following this initial training, Ms. Hearn testified she sought opportunities to work

“charting shifts” whenever available (which she anticipated would provide her with additional

hours of work). While engaged as a charting nurse she was primarily working on a computer,

inputting codes under the RAI Program, and was not required to do the usual duties of an RPN

on the floors dealing with mediations and administering treatments to residents (where at some

point, she testified she had injured her leg pushing a meds cart). Nevertheless, she also noted

that even when scheduled to work a charting shift, she would occasionally be pulled off that shift

to do RPN work on a resident floor where the Home was otherwise short of RPN staff.

[109] Ms. Hearn could not recall details of her work with the Home’s first RAI Coordinator,

Pat Barker, who left the Home in or about April of 2011. Thereafter, with the assignment of Ms.

Patricia (“Trish”) Campbell to that position, who had worked as an RN at the Home for many

years, Ms. Hearn applied for a temporary part-time posting dated April 19, 2011, which was

awarded to her on May 22, 2011. The initial posting consisted of five charting shifts (dedicated

to coding activities) and four evening shifts (when Ms. Hearn worked as an RPN on a resident

floor). Thereafter with the release of more government funding, it became a full-time position

with seven charting shifts and two shifts on the floor as a regular RPN.

[110] From Ms. Hearn’s testimony it is apparent that at all times as a charting nurse, she

worked under the direction of the RAI Coordinator. The documentation filed by the Union

Page 48 of 75

indicates that the RAI Coordinator and charting nurse would divide the necessary coding work

between them; often resulting in Ms. Hearn (who was scheduled for seven charting shifts) doing

more coding than the RAI Coordinator (who only worked three shifts per week).⁶However, over

time the coding work became more equalized between the two of them. This, of course, was in

the context of the coding done by all the other staff interacting with the residents (which included

RNs, RPNs, PSWs, clinical, dietary, activity and others). The work schedules filed by the parties

also indicate that Ms. Hearn could be displaced from scheduled charting shifts by shortages of

RPNs elsewhere. And while she testified that she rarely took time off for personal matters or

illness, by the end of her employment Ms. Hearn was entitled to several weeks of vacation per

year, during which she was typically replaced by Ms. Deb Stiles, another RPN who worked as a

backup charting nurse.

[111] In describing her charting and other activities related to the RAI Program, Mr. Hearn

indicated that many of the primary charting requirements under the old Alberta Classification

System were carried over, with which Ms. Hearn was previously engaged. One example she

cited was in place from as early as 2004, where she was charting for setting up Care Plans and it

is clear from the documentation filed by the Union that other RPNs were engaged in similar

activity related to resident Care Plans under the old Classification System (who were identified

by the “c” on their schedules associated with charting).

[112] In recalling her relationship with the RAI Coordinators who she worked for over the years

(particularly with Ms. Pam Campbell since April 2016), Ms. Hearn substantially confirmed the

earlier testimony of Ms. Ohm and Ms. Pam Campbell. Both Patricia Campbell and Pam

Campbell worked primarily out of an office where they used a computer on RAI issues. (Ms.

Hearn offered that when the RAI Coordinator was away, she liked using that computer because it

⁶In her evidence Ms. Hearn was taken through a number of work schedules coving four-week postings in the period

May 23, 2008 to November 10, 2010 that demonstrated the use of a number of individuals as “c” charting nurses

who were RPNs. The schedules also document the flexibility of movement of RPNs from being charting nurses to

working on the resident floors because of staff shortages and/or agreements among employees to trade shifts, which

is not necessary to recount in any detail except to note that the document demonstrates that many RPNs were

involved to various degrees in charting activities under both the old Alberta Classification System and the new RAI

Assessment Program.

Page 49 of 75

was “a quieter place to work”.) Ms. Hearn acknowledged that both Patricia Campbell and Pam

Campbell had the official designation as “Co-Director of Care” and professional accreditation as

RNs (as did Ms. Barker before them). She remembered that Ms. Patricia Campbell worked five

days per week (albeit less than a normal eight-hour day as an accommodation for a medical issue

that prevented her from working a full shift on resident floors) and that Ms. Pam Campbell

worked three shifts per week. Ms. Hearn also testified that Pam Campbell would occasionally

work as an RN on a resident floor in the event of shortages (usually as a nurse manager) and was

even called on to replace an RPN as necessary. She further corroborated Pam Campbell’s

testimony that the RAI Coordinator was responsible for the training and annual AIS certification

of the RPNs, and other staff involved with coding under the RAI Program (which Ms. Hearn has

never been expected to do). And when it came to dealing with CIHI (particularly in connection

with concerns raised over the accuracy and completeness of the Home’s submissions of the RAI

– MDS data), Ms. Hearn acknowledged that she did not deal with CIHI on such matters which

exclusively remained within the RAI Coordinator’s responsibility.

[113] Finally, Ms. Hearn verified the accuracy of the job descriptions for the Registered

Practical Nurses and Co-Director of Care (reproduced above) from her experience over the years.

And when asked to review on a line-by-line basis the two-paragraph email dated June 10, 2016,

from Ms. Ohm to Ms. Lindsay (also reproduced above), where Ms. Ohm explained the

differences in Ms. Hearn’s duties as a charting nurse from the responsibilities of the RAI

Coordinator (Co-Director of Care), Ms. Hearn substantially agreed with and corroborated the

accuracy of Ms. Ohm’s testimony on the matter.

[114] In cross-examination, Ms. Hearn also agreed that unlike the responsibilities and

expectations of the RAI Coordinator: (a) after her initial two days of introductory training on the

RAI Program in December 2009, Ms. Hearn has had no additional formal training on the

Program; (b) in preparing care plans and other coding under the RAI Program, Ms. Hearn is

drawing on nursing knowledge and experience she obtained over many years of practice under

the old Classification System before the introduction of the new RAI Program; and (c) whenever

a new staff person was hired who had to document interactions with a resident, Ms. Pam

Page 50 of 75

Campbell trained the new employee as part of their orientation in the theory of the RAI Program,

while Ms. Hearn was responsible for conducting a practical coding session with the new hire.

(ii)

Deb Stiles

[115] Ms. Stiles began her employment with the Southampton Home as a Health Care Aid in

1998, later earning her certificate as an RPN in or about 2000, while continuing to work for the

Home until her first retirement in 2008. She returned to the Home as an RPN in 2010 until her

most recent retirement as a full-time RPN in July of 2018. As of the date of her testimony she

was working in non-healthcare related employment elsewhere, allowing her registration with the

Ontario College of Nurses to lapse.

[116] There wasn’t anything new in Ms. Stiles’ testimony. In elaborating upon her duties as an

RPN, she corroborated the evidence of the other Employer and Union witnesses who described

the RPNs’ role when it comes to documenting their interactions with residents. Ms. Stiles

testified that her job as an RPN was to administer medications, treatments and to take direction

from the RN; to talk to residents’ and their families, help the PSWs when they need assistance

with transferring residents (into or out of bed or for toileting) and to transport residents to the

dining rooms and back. In performing those tasks, she acknowledged it was her responsibility to

chart the medications and treatments administered, any behavioural issues with the resident

and/or discussions with the residents’ families, and to evaluate how the medication and/or

treatments worked in improving the resident’s condition, which was recorded on “progress

notes” that were entered onto the resident’s chart (either by paper entry in the past, or more

recently via a computer program including “point-click-care”). She didn’t think there was “much

difference” between her use of the computer and the use of the computer by the RNs.

[117] In focusing on her interactions with the RAI Coordinator after the RAI Program was

introduced (which she became familiar with upon returning to the Home in 2010), Ms. Stiles

testified that based on her experience, the RAI Coordinator is responsible for setting up the list of

residents who are required to be assessed (which can be as a new resident and/or at the usual

Page 51 of 75

quarterly interval under the Program and/or whenever there is a “significant change” in the

resident’s condition). This list was then given by the RAI Coordinator to one of the charting

nurses, who was typically Ms. Hearn or Ms. Stiles (splitting the workload between the charting

nurse and the RAI Coordinator; however, when the RAI Coordinator was absent, it was not

unusual for both Ms. Hearn and Ms. Stiles to work charting shifts together to cover the

workload). Where a resident’s condition has significantly changed, in Ms. Stiles’ experience it

was also the RAI Coordinator’s responsibility to record the change in condition (from what it

was to what it had become) and to report “what the reasons was” for the change on the system.

Any RAI Coordinators she ever worked with over the years were registered nurses.

[118] Describing her duties as a charting nurse, Ms. Stiles also testified that for the residents

she was assigned to assess, she worked through the sections in the RAI User’s Manual (which

she would not need to do as a regular RPN on the floor), alongside RNs in the Home, who she

was still required to take direction from in connection with any monitoring or care issues related

to a resident. While noting that the RAI Coordinators worked primarily in their offices on the

computer in performing their RAI work, Ms. Stiles recalled seeing Mr. Pam Campbell working

on a resident floor, “maybe a dozen” shifts per year as an RN (although she was not certain).

[119] Before working as a charting nurse after she returned to the Home in 2010, Ms. Stiles

testified that she received training from the RAI Coordinator (either Pat Barker or Patricia

Campbell), for a total of one day. She also acknowledged that after the initial training she had to

requalify every year (by successfully passing a computerized training module). Even though

scheduled as a charting nurse, Ms. Stiles confirmed that she (and Ms. Hearn) could be reassigned

to work as a regular RPN on a resident floor if the Home was short-staffed.

[120] In cross-examination, Ms. Stiles further acknowledged that she was present during the

arbitration hearing to listen to Ms. Pam Campbell’s testimony describing the RAI Coordinator

duties and responsibilities, which Ms. Stiles agreed contained more detail than she had recounted

during her testimony. Ms. Stiles confirmed she had no doubt that Ms. Campbell’s account was

“both truthful and accurate”. Ms. Stiles’ subsequent review of her work as a charting nurse while

Page 52 of 75

also being available to work as required as an RPN on the floor, was entirely corroborative of the

testimony already presented by Ms. Campbell and Ms. Hearn.⁷

VI.

The Parties’ Arguments

[121] At the outset of its submissions, the Employer advised that it had settled its disagreement

with the Union’s claim of an understanding to hold its grievance in abeyance pending the

outcome of Leisureworld, supra, and the subsequent compensation increase awarded to the RAI

Coordinators in Sienna Senior Living, supra, by now agreeing with the Union’s position. I was

also told that as a condition off that concession, the Union agreed to waive the period in which

the grievance had been “suspended” in calculating any monetary recovery to the Union and/or

affected employees in the event of its success on the merits of the grievance. Thus, it was not

necessary to rule on the Employer’s preliminary objection, and the parties requested that in the

event of success on the merits, I remit the question of the appropriate remedy to the parties and

remain seized if the parties could not resolve the matter.

(a)

The Union

[122] The Union consequently agreed to argue the merits of its grievance first, which may be

summarized as follows:

[123] On behalf of the Union, Mr. Robert Church submitted the Employer violated the

collective agreement by excluding the RAI Coordinator and Backup RAI Coordinator from the

Union’s bargaining unit which he contended, “turns on the interpretation of article 2.01”

(entitled “Scope and Recognition”). In that event, the Union argued article 25.04 (entitled “New

Classification”) was triggered, requiring the Employer to recognize and negotiate an appropriate

wage rate for the new classification (which was subject to binding arbitration if the parties could

not agree). Alternatively, if the RAI Coordinator was found to be an existing classification, the

7

Given the repetitive nature of this testimony in cross-examination to what was already covered to various degrees

by Employer and Union witnesses, it is not necessary to repeat that testimony. It is sufficient to note the

corroborative nature of everything I heard from Ms. Stiles in relation to the evidence already received.

Page 53 of 75

Union submitted there was a substantial change in its duties and responsibilities, which also

obligated the Employer to negotiate a new pay rate for that position under article 25.04.

[124] Noting that RNs who work in a nursing capacity at the Home are covered under the terms

of a collective agreement between the Home and the ONA, the Union asserted it was not

claiming any work that might properly belong within the ONA bargaining unit and thus there

would be no jurisdictional dispute between ONA and the Union. Instead, the Union submitted

that notwithstanding the Employer’s practice of only hiring RNs for the RAI Coordinator role, on

the evidence before me I must find that despite having that accreditation the RAI Coordinator

was not “acting in the capacity of a registered nurse”.

[125] Instead, taking me through its appreciation of the evidence in detail⁸, the Union

exclaimed there was “no doubt” that the RAI Coordinators were not working as RNs within the

ONA bargaining unit, but rather they were engaged in substantially the same type of work as

“charting nurses” who were RPN members of the Union’s bargaining unit. Thus, referring to

several arbitration awards, the Union submitted that the test for determining whether a person is

in the Union’s bargaining unit is what the employee actually does, not the title (or qualifications)

that the Employer assigns to the position.

[126] According to the Union, the question therefore posed by the present case is whether, by

merely requiring the RAI Coordinator to be an RN, the Employer could properly refuse to

recognize the position within the Union’s bargaining unit under the exclusion for “registered

nurses” in article 2.01 of the collective agreement. In the face of its “all employee” bargaining

unit and having readily established that the RAI Coordinator was an “employee”, the Union

submitted that the Employer had the burden to prove that the RAI Coordinator fell within the

exclusion for “registered nurses”, which took more than merely requiring the incumbent to have

that paper qualification.

8

Since I have set out the relevant evidence of each of the witnesses, it is not necessary to set out the detailed

references to the facts that both the Union and Employer emphasized in supporting each side’s position on the merits

of the dispute.

Page 54 of 75

[127] The Union also claimed that its position on the merits was supported by the language in

article 17.05 (c), defining the circumstances under which the RPN was entitled to “responsibility

pay” for filling the responsibilities of an absent RN on the shift, and the parties’ reference to

“RPN Issues” in Appendix “A” of the collective agreement (reproduced above).

[128] In the present case, notwithstanding the Employer’s requirement that the Co-Director of

Care (who acts as the RAI Coordinator) have the RN qualification, the Union contended the

evidence supported the conclusion that RN nursing skills were not used or necessary. Since the

onus was on the Employer to prove that the RAI Coordinator fell within one of the exclusions

itemized in article 2.01 of the collective agreement, the Union urged me to find on the evidence

that the Employer had failed to discharge its onus.

[129] Consequently, on the preponderance of the evidence the Union argued the Employer had

failed to show that the skills of a registered nurse (as opposed to an RPN who also has “nursing

skills”) were reasonably required to fulfill the RAI Coordinator role (under the title “Co-Director

of Care”), which must result in the grievance being allowed.

[130] As remedy, the Union demanded: (a) A declaration that the Employer had violated the

collective agreement, and in particular articles 2.01 and 25.04; (b) A declaration that the

Employer created a new classification of RAI Coordinator (or charting nurse which is

functionally the same) that falls within the Union’s bargaining unit and must be posted; (c) In the

alterative, a declaration that there has been a substantial change to the RPN position (as charting

nurse) under article 25.04 through the creation of the RAI Coordinator position; (d) an order

requiring the Employer to meet with the Union to negotiate a wage rate for the position; (e) an

order to post two positions for the RAI Coordinator in the Union’s bargaining unit; (f) back dues

payable to the Union from the date the grievance was filed; and (g) full compensation for all

members of the bargaining unit who have been performing as a “charting nurse”, which should

have received payment at the higher RAI Coordinator rate to be negotiated. Given the

“agreement” between the parties to suspend the Union’s grievance until Arbitrator Goodfellow

had completed the issues related to the monetary award arising out of the February 1, 2013

Page 55 of 75

Leisureworld, supra, case, leading to his subsequent decision in Sienna Senior Living, supra,

dated April 8, 2016, the Union proposed that monetary compensation for all affected employees

should be calculated from that date.

[131] The Union also filed 20 arbitral authorities in support of its submissions, identified earlier

in these Reasons.

(b)

The Employer

[132] In response, Mr. Allen, counsel for the Employer, took me through a similarly detailed

rendition of its interpretation of the evidence in support of the Employer’s submission that the

RAI Coordinator role (subsumed within the position of “Co-Director of Care”) was properly

excluded under the “registered nurses” exception to the Union’s “all employee” bargaining unit

under article 2.01 of the collective agreement.⁹

[133] That evidence, according to the Employer, demonstrated that prior to the implementation

of the new RAI – MDS Program in 2009, the RPNs (along with other classifications including

RNs and other staff members) were already engaged in “charting” functions under the Alberta

Classification System, which had changed over time from being primarily paper-based system to

more use of the computer. But while acknowledging there has been an evolution in the

procedures and technology related to the charting function, including need to learn and apply new

coding protocols and procedures under the RAI – MDS Program on a computerized platform,

the Employer submitted there had been no fundamental change in the core functions of the

position to trigger anything under article 25.04 of the collective agreement, which otherwise

requires the parties to negotiate a wage rate for a new classification or where there is a substantial

changes in an existing classification.

[134] Also, there was already considerable overlap in the duties of the RNs and RPNs; both

being involved in resident care, dealing with their families, the development and amendment of

⁹See footnote 8 above.

Page 56 of 75

care plans, and charting by various means the administration of medications, treatments and their

interactions and observations on the resident, utilizing computer technology for recording

purposes, which has become more prevalent over the years. RPNs have never had exclave

domain over charting activities that were later used for purposes of determining the CMI for the

Home, on which there is no dispute. However, unlike RPNs, the evidence indicates that RNs are

in positions of responsibility; often acting as “charge nurse” over specific areas of the Home

while directing the activities of the RPNs and/or sometimes over the entire Home in the absence

of senior management, according to the Employer.

[135] Where the parties apparently disagreed was on the different role and responsibilities of

the RAI Coordinator from that of the charting nurse. According to the Employer, the evidence

supported a finding that the person performing the RAI Coordinator function as included within

the duties of the “Co-Director of Care”, was engaged in a different function than mere “charting”

(although, the Employer agreed that there was overlap in the sense that the charting work was

split between the charting nurses and the RAI Coordinator).

[136] For example, among other differences, the RAI Coordinator was responsible for

overseeing, scheduling, checking, and “locking” the MDS data following every observation

period, and then transmitting it to CIHI, along with responding to inquiries from CIHI concerning

that data. While engaged in ensuing the accuracy and completeness of the RAI – MDS

information being transmitted to CIHI, the evidence shows that the RN acting as RAI

Coordinator was also responsible for filling “gaps” in the documentation, which required the

incumbent to exercise superior nursing education, skill, experience and judgment. Although the

RAI Coordinator did not use her RN qualifications in the “traditional sense” of attending to the

bedside care of residents on the floors, the Employer submitted that the evidence supported the

conclusion that they used their nursing skills, experience and/or judgment in satisfying their

responsibilities in the RAI Coordinator role. Given the importance to the Employer of accurate

reporting to CIHI which had a directed impact on the funding that might be available to the

Home (particularly if the information was inaccurate or incomplete), the Employer submitted it

was entitled to specify a requirement that the RAI Coordinator have the higher qualifications of

Page 57 of 75

an RN, which it had determined in the good faith exercise of its discretion under its

“Management Rights” expressly conferred within article 3.01 of the collective agreement.

[137] Since those rights include its ability in article 3.01 (a) “to direct and control the work of

the employees and the operation of the Home”, and in article 3.01 (c), “Generally to manage the

Home…”, the Employer submitted it acted within its contractual discretion to stipulate that the

person performing the important function as RAI Coordinator hold the superior RN qualification

than the lesser certificate as an RPN. The Employer’s ability to stipulate an RN qualification for

that person also permitted greater flexibility to the Employer on how it organized its workforce;

given the flexibility of having the Co-Director of Care fill in for absences of the charge nurse, or

floor nursing staff, as it considered necessary in the good faith excise of its management rights.

[138] Thus where, as the Employer contended, the preponderance of the evidence supported a

finding of a reasonable nexus between the RN qualification with the responsibilities of the RAI

Coordinator in the context of the role of the Co-Director of Care as a whole, the Employer

submitted it had the right to make the assignment it did in the present case. And, given the

express exception to the “all employee” bargaining unit in article 2.01 for “registered nurses”,

without limitation in the sense of also expressly requiring that the registered nurse be “engaged in

a nursing capacity”, the Employer submitted it had satisfied its onus to show that the RAI

Coordinator is properly excluded from the Union’s bargaining unit.

[139] In support of its representations the Employer referred to a list of seven arbitration

awards, also identified above.

VII. Reasons for Decision

[140] Having considered the evidence and submissions of the parties, I agree with and

substantially adopt the Employer’s representations in this case, and consequently dismiss the

Union’s grievance. My reasons are as follows:

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[141] In assessing the evidence and submissions, I have applied the conclusions derived from

my earlier review of the “RAI Coordinator Jurisprudence” that I have set out above identifying

the following five steps of an appropriate analytical framework for a case of this nature, namely:

(i) The contractual language matters; (ii) in the case of an “all employee” unit, the Union

discharges its initial onus of demonstrating that the position falls within its bargaining unit where

it shows the incumbent satisfies the definition of “an employee”; (iii) the onus then shifts to the

Employer to prove that the position falls within one or more of the enumerated exceptions in the

scope clause; (iv) in discharging its onus the facts matter and are indeed critical to that question;

and (v) there is a presumption that in exercising any discretion it may have in establishing the

qualifications, duties and responsibilities for a position, the Employer will act reasonably and in

good faith in its legitimate business interests.

(i)

Step One – The Contractual Language Matters

[142] Turning to the first step within the foregoing analytical framework, I agree with the

Union’s submission that the determination of this grievance primarily turns on the interpretation

of article 2.01 of the collective agreement, and in particular its reference to “registered nurses” as

an exception to the “all employee” bargaining unit.

[143] Article 17.06 (c) entitled “Responsibility Allowance for Work Outside the Bargaining

Unit”, referred to by the Union in argument, does not in my view assist in that interpretative task.

It merely provides for an $8.00 allowance provided to an RPN when she/he is assigned to greater

responsibilities in the building; it doesn’t help with the definitional question before me. The

reference to “RPN Issues” in Appendix “A” of the collective agreement, also referred to by the

Union, confirms what is well-known between the parties that an RPN “is a nurse who holds a

Certificate of Registration with the College of Nurses of Ontario in accordance with the

Regulated Health Professions Act, and the Nursing Act.” It doesn’t add anything to the

interpretative question before me focused primarily on articles 2.01 and 3.01.

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[144] Article 2.01 of the collective agreement states that, “The Employer recognizes the Union

as the sole collective bargaining unit for all Employees of Southampton Nursing Home,

Southampton, Ontario, save and except professional medical staff, registered nurses,

supervisors, persons above the rank of supervisors, office staff, dieticians and physiotherapists”

(emphases added). It is clear from the context of the words used and the parties’ evidence and

submissions on what they recognized as the meaning of those words, that the reference to

“registered nurses” in article 2.01 is to an individual who holds an RN designation. On its face it

suggests that a person who is working as a “registered nurse”, without further qualification, is

excluded from the Union’s bargaining unit.

[145] Article 3.01, entitled “Management Rights” also has a role in the analysis of the

contractual position of the parties in connection with the assignment of work to “registered

nurses”. It provides in relevant part that subject to express provisions of the collective agreement

elsewhere, the Union acknowledges “the exclusive function of the Employer…(a) To hire,

classify,...direct and control the work of the employees and the operation of the Home…[and] (c)

Generally to manage the Home…”. On its face, these provisions recognize the general

prerogative of management to set the duties, responsibilities and qualifications required of

employees hired into different roles in the LTC Home.

(ii)

Step Two – The Initial Onus on the Union

[146] There is no issue that the Union has satisfied its initial onus of showing that the RAI –

Coordinator is an “employee” of the Employer (i.e., the “second step” of the analytical

framework).

(iii) Step Three – The Onus Shifts to the Employer

[147] Thus considering the contractual stipulations in articles 2.01 and 3.01, the parties’

arguments effectively come down to the question of whether under its “Management Rights” the

Employer can properly require the RAI – Coordinator to hold an RN designation, and if so,

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whether the Employer has discharged its onus to show that the unqualified exclusion for

“registered nurses” under the “Scope and Recognition” clause of the collective agreement was

properly applied in the circumstances of this case.

[148] In considering that latter question, the facts matter and in that regard it follows that I must

also agree with the Union’s submissions supporting the general regard to “substance over form”

that often dominates in cases of this nature (and is an obvious consideration in the present case).

Taking an extreme example, an employer can’t reasonably say that a parking attendant requires

an advanced degree in astrophysics to minimally perform his or her responsibilities, and any

requirement for that kind of qualification would not be considered a good faith use of managerial

authority to presumptively set the skills, qualifications, and experience for that job. The

arbitration awards filed by the Union support that general premise, but the facts of each case are

important in determining their applicability to the specific circumstances before me.

[149] Thus, in Re OPSSU and OPSEU (2017-28), supra, where the employer hired an

employee under the title, “Acting Supervisor” which it refused to recognize as a job in the

bargaining unit, Arbitrator Wilson rejected the employer’s argument that by referring to the

position in that manner it had created a legitimate position outside of the bargaining unit. Rather,

as the arbitrator observed at para. 12, “If this were the case, then employers could simply use a

title for a position that was specifically excluded by the collective agreement”, noting further

that, “The jurisprudence in these types of cases requires scrutiny of the duties that are performed,

not the hiring documents.” On the immediate question of the order of proceedings, the arbitrator

ruled that in the circumstances it was appropriate for the employer to present its case first. That

was not an issue in the present case where the Employer agreed to proceed first, without

prejudice to any shifting onus on the parties.

[150] Similarly, in Re Square D Co. of Canada, supra, where the most recent certification of

the Ontario Labour Relations Board expressly excluded “engineers” from the bargaining unit,

and the employer’s decision to exclude “engineering assistants” under that category was

challenged, Arbitrator Weatherall concluded on the facts and the wording of the relevant

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contractual provisions at para. 9 that, “The mere fact of a person’s being or having the

qualifications of a graduate or professional engineer would not in itself suffice to exclude that

person from the unit: he must be employed as an engineer to be excluded”. Thus, after

scrutinizing the actual duties of the engineering assistant and finding that the incumbent was not

engaged as an engineer but merely training to become one, the arbitrator found at para. 12 that

while the incumbent was in training he was not actually working as an “engineer”, and thus could

not properly be excluded from the bargaining unit.

[151] The foregoing case is relied upon by the Union before me in support of its argument by

analogy that when the parties identify “registered nurses” in article 2.01 they must be taken to

have intended that having the mere qualifications of a registered nurse is not enough, but rather

the incumbent must be “engaged in a nursing capacity” to fall within the exception to the “all

employee” unit, such that the provision in article 2.01 should effectively be read to say:

“registered nurses engaged in a nursing capacity”.

[152] However, that precise argument was considered by Arbitrator Jesin in Shepherd Village

Inc., supra, which dealt with an RAI Coordinator position that I have already reviewed above,

and substantially qualified. There, where the language of the recognition clause of the collective

agreement expressly excluded “all Registered and Graduate Nurses employed in a nursing

capacity”, the arbitrator concluded it was sufficient if the evidence showed that the registered

nurse was required to use nursing skills, experience and/or judgment in fulfilling the

requirements of the RAI Coordinator position, rather than being engaged in “hands on” work

with a resident. He stated the following at para. 23 in that award, which I respectfully adopt as

an appropriate consideration in assessing the evidence before me in the present case:

Most of he awards relied on by both parties support the proposition that an employee is “employed

in a nursing capacity” if that employee is required or at least expected to utilize nursing skills in the

performance of those duties that are the focus of the position. Many of these cases also

suggest that it is not necessary for the nurse to perform “hands on” nursing functions in

relation to a patient or resident in order for the nurse to be employed in a nursing capacity.

[Emphasis added]

Page 62 of 75

[153] Outside of the RAI Coordinator arbitration awards that I have already reviewed above,

the other authorities referred to by the Union in argument in different factual circumstances

concerning positions other than the RAI Coordinator (with many focused on the managerial

exclusion), repeat the basic premise which I accept that: (a) in reading the applicable contractual

language one must interpret the language in context of the entire exclusion clause (while not

going beyond the plain meaning of the specific exempting language); (b) a job title or paper

qualification is not in itself determinative of a specific exclusion under the collective agreement;

but rather (c) the arbitrator must scrutinize the actual duties, responsibilities, requirements, etc.,

to be satisfied that the incumbent is actually doing the job identified as an excluded position: See

the discussions in Re Inn Vest Hotels GP XV Ltd., supra, at paras. 63 – 66, Re Fairhaven Home

for Senior Citizens supra, at paras. 19 – 20, Re Northwestern Ontario Regional Cancer Centre,

supra, at paras. 47 – 50 and 56, Re St. Raphael’s Nursing Homes Ltd., supra, at paras. 11, 15 –

17, and Calgary Regional Health Authority, supra, at paras. 38 – 40.¹⁰

[154] All of which is really to focus the analysis on the specific facts of the case in the

circumstances before me, applying Arbitrator Jesin’s conclusions in Shepherd Valley Inc., supra,

that the arbitrator is to ask whether the facts support the expectation that the employee

performing in the RAI Coordinator role is actually engaged in using the skills, judgement and/or

experience of a “registered nurse”, to fall within that express exclusion in the “Scope and

Recognition” clause of the collective agreement.

(iv)

Step Four – The Facts Matter

[155] On the facts before me, I find that the Employer has satisfied its onus to show that the

RAI Coordinator position at the Southampton Nursing Home requires and utilizes the nursing

skills, experience and/or judgment of an RN, to fall within the exclusion for that category of

10

These cases all arise out of factual circumstances that are distinguishable from the specific facts before me, and

thus to the extent that they stand for or support general principles, they must be cautiously considered in the context

of the circumstances that were before the specific board of arbitration. Of much more relevance to my overall

assessment of the instant grievance, were the cases that specifically looked at the role and responsibilities of the RAI

Coordinators as applied to different exclusionary language in the scope and recognition clauses governing in those

cases.

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employee recognized in article 2.01 of the collective agreement. In reviewing the extensive

evidence before me as a whole, I substantially agree with and adopt the representations of the

Employer on the matter, summarized as follows:

[156] On the facts before me, I must respectfully disagree with the Union’s operating premise

that the functions of the charting nurse primarily performed by Ms. Hearn with the assistance of

Ms. Stiles (usually in the absence of Ms. Hearn) are substantially the same as “80%” of the duties

and responsibilities of the Co-Director of Care, described in the evidence of Ms. Campbell in her

capacity as the RAI Coordinator and in the testimony of Ms. Ohm.

[157] Of particular significance in this regard is the evidence of Ms. Hearn, who was taken

through the email of June 10, 2016, from Ms. Ohm to the Union’s representative, Ms. Lindsay,

on a line-by-line basis, which I have reproduced above in recounting the testimony of Ms. Ohm.

Ms. Hearn not only adopted the synopsis of the differences in the work and responsibilities of the

“charting nurse” from those of the RAI Coordinator, but when confronted with the job

description for the “Co-Director of Care”, on a line-by-line basis, also reproduced above, she

agreed that the job description accurately reflected what she knew that Ms. Pam Campbell in her

capacity as the RAI Coordinator, was doing when performing in that capacity.

[158] That evidence supports the conclusion that there is a clear distinction in the essential roles

of the charting nurse and the RAI Coordinator, while also a significant degree of overlap in the

two roles when they are both engaged in mere charting activities.

[159] I find on the evidence that the key functional responsibilities of the charting RPN from

Ms. Ohm’s June 10 email as accepted by Ms. Hearn are: (i) the charting RPN is assigned to

complete all annual head-to-toe assessments, completing annual physical schedules, going to the

lab for bloodwork and completing assessments and care plans for residents in their observation

period. (ii) But such functions are not exclusive to the charting RPN, since all registered staff

(which will include RNs) are also assigned to complete assessments and care plans; however, the

charting RPN is “given more time” to do this work. And (iii) there is no separate job description

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for the charting RPNs as they are not required to do anything more than an RPN would otherwise

be required to do, and as a result, in the absence of the charting RPN, there are other RPNs who

are assigned to do the charting work.

[160] By contrast I find on the uncontradicted evidence of Ms. Ohm, Ms. Campbell and as

reflected in the June 10 email that the RAI Coordinator (acting as the “Co-Director of Care”) is:

(i) responsible for teaching registered staff assessments (i.e., for RNs and RPNs), care planning

and AIS testing for all staff engaged in coding and charting activities per the MOHLTC

regulations. (ii) After the observation period required by the RAI Program is complete, it is the

exclusive responsibility of the RAI Coordinator to review all sections of the MDS, for accuracy

and completeness, signing off on every section including all care plans, while checking for

completeness, accuracy, including filling in “gaps” in the MDS records under review, which

according to Ms. Ohm and Ms. Campbell require the RAI Coordinator to exercise her judgement,

skills and experience as an RN. (iii) Notifies CIHI of all internal moves (of residents) hospital

stays and admissions. (iv) Completes all restorative assessments, notes, and evaluates

restorative plans for the residents under review. (v) Reassesses the circumstances and care plan

of the resident when there is a “significant change” in the resident’s condition (which may be

shared with other registered staff). (vi) Completes all MDS forms for transmission to CIHI,

every 92 days, while checking each one for completeness, and sending them in batches to CIHI.

(vii) While completing audits and responding to specific inquiries from CIHI and/or investigating

and making specific corrections requested by CIHI, all of which I find, in accordance with the

testimony of Ms. Ohm and Ms. Campbell require the RAI Coordinator to exercise her judgement,

skills and experience as an RN.

[161] There is a history to how the parties get to this division of labour between the charting

RPN and RAI Coordinator, which is also revealed by the evidence before me. Neither of the

main elements of the RAI Program, being (i) a computerized form of record keeping that is used

in providing care to residents from a clinical perspective; and (ii) reporting such information to

the appropriate government agency for the purpose of establishing the appropriate level of

funding for the Home, is new to the parties involved. Ms. Ohm confirmed in her testimony that

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under the prior Alberta Classification System that progress notes (formally completed in paper

form only by all staff involved in the care and treatment of a resident) were computerized in or

around 2003 utilizing the “point-click-care” technology, which Ms. Hearn confirmed in her

evidence that she compiled as an RPN on the floor, which included records of resident treatments

medications, head-to-toe assessments, pain assessments and continence assessments, that were

routinely performed by all the registered staff. While under the Alberta Classification System,

these records were used to inform the government inspectors of the care needs of the Home’s

residents; none of that fundamentally changed with the introduction of the RAI Program in 2009.

Ms. Hearn confirmed that her role under the Alberta Classification System was to ensure that the

residents’ records were “in good shape” for presentation to the outside inspectors. Ms. Hearn’s

and Campbell’s evidence support a finding that the requirement of a charting RPN did not

change at its core with the introduction of the RAI Program in 2009. Rather, there was a natural

evolution with the addition of standardization and consistency in application and coding required

by the new computer program, which all staff involved in charting under the Program, including

the RPNs and RNs, were required to learn. To this extent the evidence indicates that the move

from the Alberta Classification System to the RAI Program did not change the fundamental role

of the charting RPNs.

[162] I therefore conclude that the differences between the RPN charting duties performed by

Ms. Hearn and Ms. Stiles prior to and after the introduction of the RAI Program in 2009 did not

trigger the Employer’s obligation under article 25.04 of the collective agreement to negotiate a

new wage rate for the RPNs involved that charting. That contractual provision is invoked in one

of two circumstances: (i) “When a new classification (which is covered by the terms of this

agreement) is established by the Home"; and (ii) “When the Home makes a substantial change

during the term of the Agreement in the job content of an existing classification which in reality

causes such classification to become a new classification…”.

[163] The principles to apply in determining whether a contractual provision in the nature of

article 25.04 in the instant case, requiring the negotiation of an up-to-date wage rate for a “new

classification” or where there has been a “substantial change” in an existing classification have

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been considered in a number of arbitration awards, particularly in the health care sector where

there has been a natural evolution in practices and procedures over the years with changes in

technology. For example, in Concordia Hospital, supra, where the collective agreement required

the employer to negotiate an appropriate wage rate with the union when a new classification was

created or if there had been a material or substantial change in a particular job during the term of

the collective agreement, Arbitrator Werier considered the grievance of pharmacy technicians

who demanded a higher wage rate for their position because it had experienced, “increased

complexity and responsibility”. In determining the principles to apply for deciding a complaint

of this nature, the arbitrator wrote at p. 19:

A brief review of the arbitral jurisprudence is warranted. A successful reclassification will therefore

generally flow from a finding that there has been a material and substantial change in the job

duties. Not every change will warrant a reclassification. Jobs evolve over time. New tasks are

added or removed in the ordinary course. Whether or not there has been a substantial qualitative

change turns on the facts of each case.

If the job does not fit into the existing classification and there is no other classification into which

the position would fit, then there is a necessity to create a new classification and establish a

compensation rate which is fair and bears a reasonable relationship to other classifications with

jobs of similar responsibility and complexity. A wider more varied range of work does not

warrant a higher classification unless it involves work of a greater complexity. The addition

of equivalent tasks does not upgrade a classification, nor does an increase in workload

necessarily result in a reclassification.

[Emphasis added]

[164] Although the arbitrator found the job of the pharmacy technician had “evolved over

time” with the inclusion of new procedures and processes that included increased use of

computer technology resulting in more tasks to perform and likely a higher workload, he

dismissed the grievance where he also found on the evidence that, “the core functions of the

position remain essentially the same”, further explaining at pp. 19 – 20:

There is no doubt that the pharmacy technician role has evolved over time. New systems and

technologies have been introduced. The pharmacy technician has more tasks to perform and

likely a heavier workload than in past years.

However, I am satisfied that the core functions of the position remain essentially the same.

I have not been provided with evidence that satisfies me on balance that there has been a

material change or a change in the complexity of the functions.

Page 67 of 75

[Emphasis added]

[165] A similar analysis was applied in Re Hamilton Health Sciences, supra, where in

determining whether the employer made a “substantial change” in the job content of an existing

classification obliging the parties to negotiate a new wage rate, particularly where the new job

duties required employees to participate in days of mandatory training, but in the face of the

employer’s claim that “what occurred is a natural evolution” of the job, Arbitrator Levinson set

out the appropriate principles of analysis at para. 13, relying on an earlier award addressing the

same issue in Re Sudbury Regional Hospital and O.N.A. (2008), 177 L.A.C. (4th) 394 (Ont.

Arb.) (Surdykowski):

The issue here is whether it has been proven that the Hospital made a substantial change in the

job content of an existing classification which in reality caused such classification to become a new

classification, within the meaning of article 19.08 of the central collective agreement.¹¹This

involves an objective, holistic and contextual assessment of the material circumstances.

Before making that assessment, it is useful to review the cited decision in Re Sudbury Regional

Hospital and O.N.A. (2008), 177 L.A.C. (4th) 394 (Surdykowski)…

[13] As is apparent from the jurisprudence cited, the applicable principles are

well established. Although the determination of every case turns on the facts,

that is particularly so in this type of case.

[14] In the absence of clear specific collective agreement language there is no

proprietary or other employee right to a particular job or bundle of duties

and responsibilities in a job or classification, nor any prohibition against

altering duties or responsibilities of a job or classification. A job

classification scheme in a collective agreement does not in and of itself fetter an

employer’s right to add to or subtract from any particular bundling of job duties

and responsibilities, and doing so will not necessarily create a new job

classification. So long as it acts in good faith and for legitimate business

reasons an employer enjoys considerable management discretion to alter

the duties and responsibilities of a job without engaging a “new

classification “ provision. As article 19.08(a) in this case specifically

recognizes there must be a substantial (i.e. considerable in importance,

value, degree, amount, or extent) qualitative change in the actual core

functions performed in order for a new classification to evolve from an

existing one. A mere change in the mix or emphasis on duties and

responsibilities is not sufficient. That is, the addition to or reallocation of

11

Article 19.08(a) of the collective agreement provided in relevant part that “when …the Hospital makes a

substantial change in the job content of an existing classification which in reality causes such classification to

become a new classification, the Hospital will also advise the Union of such new or changed classification and the

rate of pay established.

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duties and responsibilities must create a de factor different job. when it

comes to medical health professionals the addition or relocation of duties

or responsibilities within the basic scope of practice will generally not

amount to a substantial change for job classification purposes (see, Re

Homewood Health Centre, supra, and Re Selkirk an district General Hospital,

supra, for example).

…

[16] Arbitrators have recognized that jobs tend to evolve. This is

particularly true for medical health professionals as technological

advances and changes in service delivery alter the practice of medicine

(see, for example, Re Ottawa Hospital, supra). The evolution of a job or

classification may, but will not necessarily, result in the creation of a new

classification.

[Emphasis added]

[166] Applying the foregoing principles to the evidence before me, I find the testimony of the

Employer’s witnesses as substantially confirmed by Ms. Hearn and Ms. Stiles (particularly in

cross-examination) supports the finding that by the time the RAI Program was implemented in

2009, the charting RPNs were already using a computer to record observations on the residents

when they were working on the resident floors as RPNs.¹²Their responsibilities for documenting

their interactions with the residents were already extensive, that in my opinion did not

fundamentally change their core job duties to the point of requiring the creation of a new

classification, as much as it appears to have been a gradual evolution with the involvement of

computer technology and advancements in accompanying coding requirements over time. In such

circumstances, I conclude that no new classification covering the responsibilities of the RPNs

was created by the Employer after the implementation of the RAI Program, which from my

assessment of the evidence was not required under the collective agreement in the circumstances

because, fundamentally, nothing of substance (as opposed to an evolution in processes) really

changed. The same RPN classification and its core functions continue to the present date.

12

This included the computerized recording of medication passes for residents under their care, and records of the

treatments provided by the RPNs as prescribed by the attending physicians, which included the care of wounds. Ms.

Stiles also confirmed in her testimony that even before the implementation of the RAI Program, as an RPN on the

floor she would speak with residents and their families, administer medications, etc., which were documented via

computerized progress notes.

Page 69 of 75

[167] I am of the same opinion in considering the second way that article 25.04 may be

triggered. On the evidence presented in this case through the testimonies of Ms. Ohm, Bryan,

Hearn and Stiles, it is evident (particularly from Ms. Hearn) that the charting functions were

preferred and in many respects less onerous than working on the resident floor where the RPN

would need to administer medications, treatments, etc., all of which had to be properly

documented, whether under the old or new systems of record keeping. Ms. Hearn was interested

in being a charting nurse because, as she expressed it, she was not required to push a medication

cart (on which she had injured herself in the past), preferring instead the relative quiet and

regulated environment of an office setting on the computer. From the evidence of what the

charting RPNs actually did in revising care plans, updating the records for residents within their

reporting period and/or checking the records for completeness and accuracy, I find that at its core

this was fundamentally the same work they had always done as RPNs, although utilizing a more

precise coding protocol that substantially took out much of the “guesswork” in their activities.

From Ms. Hearn’s testimony there is also some legitimacy to the idea that the requirements on

the charting nurse were in fact less onerous than the RPNs (and other registered staff) working on

the floor. The evidence from Ms. Hearn and Ms. Stiles is consistent with the observations of Ms.

Bryan, that the sources of the information for making charting entries under the new RAI

Program were sufficiently similar to those under the prior Alberta Classification System, to

undermine any demonstration of a “substantial change” in the functions of the charting nurse

during the term of the collective agreement necessary to compel the Employer to negotiate a new

wage rate for the position. On the evidence before me, there certainly was not the showing (to

quote from Arbitrator Surdykowski in Re Sudbury Regional Hospital, supra, at para. 14) of “a

substantial (i.e. considerable in importance, value, degree, amount, or extent) qualitative

change in the actual core functions performed in order for a new classification to evolve from

an existing one”.

[168] The conclusion I therefore draw from the totality of the evidence presented by all of the

witnesses (which were substantially in agreement on what the RPNs and charting RPNs did

before and after the implementation of the RAI Program in 2009), is that there was no substantial

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change in the core functions, notwithstanding considerable overlap in duties between all of the

staff involved in documenting their interaction with the residents, including the activities of the

RAI Coordinator in the charting aspects of the work. Ms. Bryan testified that the introduction of

the RAI Program did not change the way that nurses (broadly defined) cared for residents, which

she rather characterized as a “new form”, that was consistent with the testimonies of the other

witnesses who described their work before and after the change.

[169] All of which leads to the result that the Union’s claim of a violation of article 25.04 must

be dismissed, and to take the analysis of the evidence and law submitted by the parties back to

the initial question of whether, on the facts presented, the Employer has satisfied its onus to show

that the RAI Coordinator’s functions (as they are reflected within the job description of the Co-

Director of Care performed by Ms. Pam Campbell and others) falls within the express exclusion

under article 2.01 as being within the negotiated category of “registered nurses”.

[170] At the risk of repeating the key findings already referenced above, there is no dispute that

everyone hired to fulfil the role of the RAI Coordinator was an RN, duly accredited as such by

the College of Nurses of Ontario. On a straightforward reading of the words “registered nurses”

negotiated by the parties in article 2.01 which are unqualified; and having regard to the totality of

the evidence before me, it is my opinion that the Employer has satisfied its onus of showing that

the RAI Coordinator falls within that express negotiated exception to the “all employee” unit.

On the evidence I find that a clear nexus has been established between the Employer’s

requirement that the incumbent have the RN qualification, with the specific and unique elements

of the RN’s role in fulfilling the important responsibilities of the RAI Coordinator.

[171] But, even going further as Arbitrator Jesin did in Shepherd Village Inc., supra, the

evidence supports the conclusion that the RAI Coordinator was expected to and in fact did utilize

her superior training, experience and judgment as an RN in dealing with those areas of the work

apart from the mere coding and charting activities that overlapped with the RPNs and other

registered and clinical staff (i.e. dietary supervisors, activation, physiotherapists and various

clinicians) who were all required to document their interactions with the residents as well.

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[172] While it is not disputed that up to 80% of the Co-Director of Care’s time was spent as an

RAI Coordinator, with considerable overlapping in the charting functions shared with the

charting RPNs, the testimonies of Ms. Ohm and Ms. Pam Campbell support the finding that only

the RAI Coordinator scheduled the observation period for each individual admission, and

thereafter quarterly, or intermittently if there was a significant change in the resident’s condition,

while Ms. Hearn working as an RPN or charting RPN had no authority to initiate those

assessments. Ms. Campbell was also clear that as the RAI Coordinator, she alone was

responsible for “locking” each resident assessment to be filed with CIHI once she was satisfied

that it was accurate and complete, and later dealing with CIHI to investigate specific concerns

over the quality and/or completeness of the information submitted, which as she testified,

required that she act in some ways like “a detective” at times to solve the identified problems.

[173] These responsibilities dovetailed with Ms. Campbell’s other role as an RN manager on

call every second week that was a feature of the organization of its overcall control of the work

of its employees at the Home consistent with the Employer’s contractual right to generally

manage the operations of the facility, that is expressly conferred by article 3.01 (a) and (c) of the

collective agreement. As the nurse on call, she was responsible for any issues arising in the

building after business hours involving staff or residents. These are functions, of course, that

Ms. Hearn or Ms. Stiles were not qualified to perform; and thus had they been in the position of

RAI Coordinator, they would not be available to cover shortages of RNs on the floors, thereby

requiring the Employer to find some other way of organizing its workforce to satisfy the critical

needs of the LTC Home.

[174] In performing of all the foregoing tasks, Ms. Campbell testified that she was regularly

using her superior nursing skills as an RN to address issues arising under the RAI Program,

which was consistent with the evidence of Ms. Hearn and Ms. Bryan, along with the job

description (that Ms. Hearn confirmed as accurate), indicating that being an RN was a

requirement of the job. This evidence supports the finding that the use of superior nursing skills,

judgement, and experience that the RN qualification brings to the LTC Home is reasonably

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required to perform the RAI Coordinator work to the high level expected by the Employer to

optimize its chances of securing the highest funding available.

[175] In the foregoing circumstances it is my opinion that the Employer has satisfied its onus to

prove that the RAI Coordinator function in the manner it was assigned within the position of

“Co-Director of Care”, was fulfilling the role of a “registered nurse” as that term is used in article

2.01 of the collective agreement.

(v)

Step Five – The Good Faith Requirement

[176] This leaves as the final step in the appropriate analytical framework in a case of this

nature to assess what I have referred to as the “good faith requirement”, which has been accepted

by arbitrators as an implied term of the collective agreement in connection with the exercise of a

discretion given to the Employer to manage, direct and organize its workforce under the form of

“Management Rights” provision in effect between the parties.

[177] I have described this principle in Re K-Bro Linen Systems Inc., supra, which has also

been advanced by Arbitrator Surdykowski (among others), in Bell Canada and Unifor, Local 34-

0, supra, who stated at paras. 46 – 47 in relevant part that:

46. It is clear from the evolution of the jurisprudence following Brampton Hydro Electric

Commission and from the Bhasin decision, read together and in the context of the applicable

legislation (in this case s. 57(1) of the Canada Labour Cord) and the Weber essential character

test that:

...

3. a grievance need not have a specific collective agreement “hook” in addition

to a management rights clause, so long as it raises an issue which in its

“essential character” is factually and functionally connected to the operation

of the agreement.

4. the exercise of management rights, both with respect to a provision in a

collective agreement or generally, is an exercise of discretion which lies at

the core of collective agreement rights and obligations; that is, the exercise

of management rights is fundamental to the operation of a collective

agreement;

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5. as a matter fundamental to the operation and functioning of a collective

agreement, any exercise of management rights discretion must be subject

to challenge on the basis of reasonableness, or perhaps more specifically

on the basis that the management right was exercised in an arbitrary,

discriminatory or bad faith manner (which I believe effectively covers the

field unreasonableness and good faith);

…

47. This approach does not permit an arbitrator to alter or amend a collective agreement. But it

recognizes that collective agreements do not come out of or exist in the air. A collective

agreement must be interpreted and applied with due regard for the statutory framework from which

it derives and the bedrock of the common law of contract.

[178] Applying the foregoing premise, on the totality of the evidence before me, I find there is

nothing to suggest that the Employer has acted in bad faith in its decision to require the RN

qualification for the person fulfilling the RAI Coordinator role, in the exercise of its discretion

under article 3.01 (a) and 3.01 (c) to “hire, classify,…direct and control the work of the

employees and the operation of the Home” within its general prerogative, “to manage the

Home…”.

[179] In exercising its discretion in that regard, I find that the Employer has chosen to require

the incumbent to be a qualified RN, not for any proven ulterior or improper motive of defeating

the legitimate ambitions of the Union, but rather with the intention of best serving its resident

population while putting the Home in the most favourable position to maximize its funding

opportunities from the provincial authorities.

[180] In such circumstances the Union’s claim of a violation of article 2.01 of the collective

agreement must also be dismissed.

VIII. Postscript

[181] I shall conclude by addressing the Union directly, which will understandably be

disappointed by this result.

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[182] The impression the Union led throughout this case was that Arbitrator Goodfellow’s

decision in Leisureworld, supra, was determinative of the Union’s overall position (both at the

Southampton Nursing Home and elsewhere) that the RAI Coordinator role “belongs” with the

RPNs in the Union’s traditional bargaining units at locations throughout the province, justifying

the significant wage increase for the position later awarded in Sienna Senior Living, supra. In

my respectful view the Union has failed to recognize the importance of the specific wording of

the contractual terms in issue, along with the unique facts of each case, in assessing whether the

RAI Coordinator role is or is not excluded from the bargaining unit under consideration.

[183] In Leisureworld, supra, the arbitrator was careful to notice that among the many

bargaining units covered by the award, the employer conceded they included RNs and RPNs

together. There was not the same divergence between those two roles or positions that was

before to me in the present case. Moreover, Arbitrator Goodfellow also observed that where one

of the bargaining units under consideration, identified in para. 53 as a “Diversicare Service

Agreement”, had an express exclusion for “Registered Nurses” (which is similar to the collective

agreement before me), neither party referred to that fact, but rather it was his understanding from

the evidence before him that the RPNs were included within the same agreement as the RNs.

The care with which the arbitrator identified that point suggests, at least, that a different analysis

might be required to account for the express exclusion of the “Registered Nurses” from the SEIU

bargaining unit, leaving open the possibility of a different result had the matter been pressed

before him. As it turned out, on the evidence and submissions before him, Arbitrator Goodfellow

had no difficulty in dismissing the employer’s argument that the RAI Coordinator at the

Leisureworld and Associated Homes fell within the enumerated exclusion for “office staff”,

which he was also careful to identify as “the issue” in the case before him.

[184] That, of course, is not the reality of the “Scope and Recognition” clause, evidence and

positions taken by the parties in the instant case, nor is it “the issue” before me.

[185] That reality leads me to conclude that Arbitrator Goodfellow’s decision does not stand for

the proposition that the Union “owns” the job of RAI Coordinator at every LTC Home in

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Ontario. (See, again in this regard, Arbitrator Surdykowski’s rejection of any notion of employee

or union “ownership” of a particular classification or bundle of job responsibilities in the absence

of express contractual language to the contrary in Re Sudbury Regional Hospital, supra, at para.

14). Rather, as indicated by the arbitral jurisprudence extensively reviewed above, whether the

position falls within or outside of its bargaining unit is to be determined from the specific

language the parties have negotiated into their collective agreement covering the matter, having

regard to the relevant factual circumstances.

[186] In the present case, where the Employer has made what I have found to be a good faith

determination that its legitimate interests are best served by an RAI Coordinator with the

qualifications of a registered nurse (RN), where the “Management Rights” clause of the

collective agreement confers the express prerogative in article 3.01 (a) to “hire…classify…direct

and control the work of the employees and the operation of the Home”, with the ability in article

3.01 (c), “Generally to manage the Home”, and where the evidence supports the finding of a

reasonable nexus between the RN qualifications and the RAI Coordinator duties and

responsibilities, I conclude that the Employer had the right to make that qualification a

requirement for the position under consideration, in all of the circumstances.

IX.

Disposition

[187] Consequently, for the foregoing reasons, the Union’s grievance must be and is hereby

dismissed.

DATED AT STOUFFVILLE, ONTARIO THIS 11TH DAY OF JULY, 2022

“G. F. Luborsky”

Gordon F. Luborsky,

Sole Arbitrator