Grievance File No.:M-21-019  
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:  
TRILLIUM HEALTH PARTNERS  
(the “Hospital”),  
(the “Union”),  
- and -  
CANADIAN UNION OF PUBLIC EMPLOYEES,  
LOCAL 5180  
AND IN THE MATTER OF THE GRIEVANCE OF KALTRINA DZELILI REGARDING  
ALLEGED IMPROPER BYPASSING OF PROMOTIONAL OPPORTUNITIES.  
SOLE ARBITRATOR:  
Gordon F. Luborsky  
APPEARANCES  
For the Union:  
Joshua Mandryk, Counsel  
Samhita Misra, Summer Law Student  
Joe Ricci, President, CUPE Local 5180  
Laura Murchison, Chief Steward, CUPE Local 5180  
Kaltrina Dzelili, Grievor  
For the Hospital:  
Amanda J. Hunter, Counsel  
Harriet Yiga, Counsel  
Kevin Gibbons, Human Resources Business Partner  
Nicole Johnston, Human Resources Business Partner  
Lisa Elsey, Manager of Pre-Analytics and Clinical Genetics  
Joanne Bishop, Laboratory Quality Manager, POCT, Safety  
HEARD:  
July 22, 2021, September 21 2021,October 19, 2021, and  
December 1, 2021  
By Videoconference  
DECISION:  
July 27, 2022  
Page 2 of 45  
A W A R D  
I.  
Introduction  
[1]  
Trillium Health Partners (“TPH”) is one of the largest community-based acute healthcare  
conglomerates in Canada, created by the merger of the following three major metropolitan  
hospitals located in Mississauga and West Toronto: Credit Valley Hospital, Mississauga  
Hospital, and Queensway Health Centre.  
[2]  
The Union’s grievance dated February 12, 2021, alleges that the Grievor, Ms. Kaltrina  
Dzelili, was improperly bypassed for two vacancies posted on December 29, 2020, and three on  
January 18, 2021, for a “Patient Care Technician” (or “PCT”) at the Mississauga Hospital site.  
The grievance states:  
TPH has violated our collective agreement when they bypassed Kaltrina Dzelili for postings she  
applied for: 2020-19488, 2020-19491, 2021-19748, 2021-19749 and 2021-19750. THP violated  
articles: B, article 9 all, article 20 and any other related articles, Hospital policies, OHRC Codes,  
government legislature or other articles and legislature. We request THP follow the collective  
agreement or related policy and legislature and award the positions applied for by Kaltrina and  
make her whole in relations to wages and benefits.  
[3]  
The Hospital’s response dated April 9, 2021, provides in relevant part:  
During the Step 2 meeting, the parties discussed the matter whereby the Union alleges the Grievor  
was bypassed for multiple job postings.  
The Hospital maintains that the Grievor’s application to the positions in question indicated that she  
did not meet the normal/minimum qualifications of the positions. Therefore, she was bypassed.  
It was discussed in the grievance meeting that the Grievor must ensure, in the future, information  
she submits when applying for a position is accurate and up to date, so recruitment has the best  
possible information when assessing her candidacy. It is the Hospital’s position that it was just in  
bypassing the Grievor.  
Therefore, the grievance is denied.  
Page 3 of 45  
[4]  
The Grievor had been employed 6 ½ years as a part-time “Hospitality Associate” with  
responsibilities for cleaning and disinfecting different areas of the hospital, while also stocking  
supplies and linen carts, when she applied for the Patient Care Technician job postings.  
[5]  
Patient Care Technicians are responsible for administering electrocardiograms (“ECGs”)  
and taking blood (described as “venipuncture and capillary collections”) on inpatients and  
outpatients through a process known as “phlebotomy”, by which a needle is typically inserted  
into the patient’s arm to draw blood from a vein. Among the key qualifications for the position  
stated in the job description are, “Completion of a recognized post-secondary education program  
in Laboratory Medicine” and “Recent and related experience in E.C.G. and Phlebotomy in an  
acute care setting”.  
[6]  
The main provision of the collective agreement at issue is article 9.05 (d) which states in  
relevant part that, “In matters of promotion and staff transfer appointment (sic) shall be made of  
the senior applicant able to meet the normal requirements of the job”. Since the Grievor had  
more seniority than anyone selected for the five job postings, she is presumptively entitled to the  
position if “able to meet the normal requirements of the job”.  
[7]  
The question nevertheless arising in the present case is whether the Grievor met the  
minimum educational and experience criteria of the job description entitling her to any  
consideration for these vacancies? The Union says she did; the Hospital maintains she did not.  
[8]  
The Grievor concedes she made an “unfortunate” mistake by not updating the résumé she  
submitted to the Hospital when applying for the five job postings that indicated she was only in  
the process of completing the educational requirement (when, in fact, she had recently passed the  
theoretical part of that training, while anticipating her completion of the practicum component  
shortly after her first application).  
[9]  
On its review of the résumé submitted by the Grievor, the Hospital thus concluded the  
Grievor had not met the educational prerequisites. It also did not consider her reported “recent  
Page 4 of 45  
related experience in E.C.G. and Phlebotomy in an acute care setting” (emphasis added)  
sufficient to meet the minimum requirements.  
[10] Consequently, the Grievor was not awarded the Patient Care Technician position as the  
candidate with the highest seniority or even offered an interview for any of the job postings,  
which the Union claims violated the collective agreement.  
[11] The parties agreed at the outset of the hearing that I was properly appointed under their  
collective agreement with jurisdiction to adjudicate this dispute.  
II.  
Decision  
[12] While commending the Grievor’s initiative in upgrading her education and experience, on  
the evidence before me I conclude there has been no violation of the collective agreement and  
that the grievance must be dismissed. My reasons are as follows.  
III.  
The Evidence  
[13] In addition to documentation filed on consent1, I heard testimony from the Grievor and  
the Union’s Chief Steward, Ms. Laura Murchison, who has been employed as a full-time  
Registered Practical Nurse (“RPN”) at the Mississauga Hospital site since November 1988.  
[14] The Hospital presented evidence from Ms. Joanne Bishop, who has been the “Laboratory  
Manager for Quality Point of Care and Safety” since December 2019 fulfilling the role of hiring  
manager in this case, along with Ms. Cheryl Provencher, identified as the “Interim Lead of  
Employee and Labour Relations”, having been employed since 2011. The evidence may be  
summarized as follows:  
1 As it turned out, I reviewed over 800 pages of documentation submitted by the parties along with my typed notes of  
the witness testimonies and arguments, in addition to the 15 legal authorities and six arbitration awards filed  
respectively by the Hospital and Union over four hearing days.  
Page 5 of 45  
(a)  
Background Information  
[15] The THP website accurately describes the Mississauga Hospital site, as “one of Canada’s  
largest leading academically affiliated health centres with highly-specialized regional programs  
in Advanced Cardiac Surgery, Geriatric Mental Health Services, Hepato-Pancreato-Biliary  
Services, Neurosurgery, Palliative Care, Primary Percutaneous Coronary Intervention, Sexual  
Assault and Domestic Violence, Specialized Geriatric Services, Stroke, and Vascular Services.”  
It also boasts model ambulatory care and the largest free standing day surgery centre in North  
America serving over one million residents of Peel, West Toronto and from other communities  
throughout Ontario.  
[16] In describing her background and work experience, the Grievor referred to an undated  
résumé that she acknowledged submitting to the Hospital when she applied for the five job  
postings at issue in the present case. Under the heading, “Education”, she wrote: “CDI  
COLLEGE, Mississauga, ON, Medical Laboratory Assistant/Technician, 2019 – present”  
(emphasis added). The résumé went on to elaborate that: “The program combines theoretical  
and practical elements of lab work in a well-equipped classroom/laboratory setting. Students  
gain an understanding of key scientific principles, including the fundamentals of anatomy,  
physiology and medical terminology, clinical chemistry, laboratory microbiology, hematology  
and immunohematology.”  
[17] The résumé also referred to the Grievor’s “Professional Experience” as a “Medical  
Laboratory Technician” with “Vital Urgent Care, Etobicoke, ON”, from “2020 – present”. In  
describing her duties for Vital Urgent Care, the résumé stated: “Patient registration, maintain  
patient flow and vital signs; Perform Phlebotomy, ECG, TB skin test, Vaccine preparation &  
administering injections; Chaperon for female examination with male physician; Prepare kits for  
urine cytology, FOBT, CCU; Wound dressings, burns, cuts, ear flush, suture stable removal upon  
physician instruction; Specimen collection; strep throat, nail fungi, skin scraping sputum,  
labeling specimens with patient demographics; Autoclaving instruments, centrifuging  
specimens.”  
Page 6 of 45  
[18] It further itemized the Grievor’s duties as a “Hospitality Associate” at Trillium Health  
Partners from “2014 – present” with the following responsibilities: "Maintain and ensure the  
cleanliness of hospital areas to prevent the spread of infections and diseases and to protect the  
health of our patients, their families and staff; Provide personal assistance, patient transportation,  
emotional support and other personal care to coworkers, customers, or patients, encourage and  
build mutual trust, respect, and cooperation among team members and patients.”  
[19] When the Grievor was asked to confirm during her examination-in-chief that she  
submitted her résumé with her applications for the five job postings at issue, she responded:  
“Yes, unfortunately”. When asked to explain why she said “unfortunately”, she testified:  
“Because it is the reason we are here today – it was not updated”. The Grievor explained that  
contrary to the information on her résumé, which indicated the Grievor’s education was “from  
2019 to present”, the Grievor asserted she had in fact completed the CDI College course in  
Medical Laboratory Assistant/Technologist on November 21, 2020, when she passed the related  
provincial exams. (As it later turned out through her evidence, however, she had yet to complete  
the practicum component of the course requirements, which is described below.) The Grievor  
never alerted the Hospital to an error in the résumé description of her educational  
accomplishments, in any of her applications for those five job postings.  
(b)  
The Grievor’s Applications  
[20] The Grievor’s five applications for the Patient Care Technician job postings occurred in  
two separate batches.  
[21] On December 29, 2020, the Hospital posted on the bulletin boards and website used to  
alert internal staff of promotional opportunities/vacancies, Posting Number 2020-19488, advising  
of two available positions for a “Patient Care Technician”. It identified the location of the work  
as “Mississauga Hospital”, the requirement that the employee be “available to work all shifts,  
days, evenings, nights, including weekends”, and the closing date for accepting internal  
applicants as “January 5, 2021”. On the same December 29, 2020, the Hospital posted a second  
Page 7 of 45  
announcement of a single position for a Patient Care Technician that was also available for  
employment on a part-time basis, under Posting Number 2020-19491, with a closing date of  
January 5, 2021.  
[22] The Grievor applied immediately for the two job postings online, and in doing so she  
answered “yes” beside a “click on” question in the online form asking if she satisfied the  
educational requirements. In response, she received two separate emails from the Hospital dated  
December 29, 2020; the first at 3:00 p.m. (responding to Posting Number 2020-19491) and the  
second at 3:06 p.m. (regarding Posting Number 2020-19488, which was identical to the earlier  
email except for references to the Posting Number). Those emails stated in relevant part:  
Dear Kaltrina,  
Thank you very much for your recent application to the Patient Care Technician 2020-19491 [or  
2020-19488]2 position at Trillium Health Partners. Your resume will be reviewed by our recruiting  
staff, and we will contact you soon, should we feel that your background meets our current needs.  
Sincerely,  
Trillium Health Partners  
[23] The second batch of three job postings was advertised on the appropriate internal bulletin  
boards and website for interested staff on January 18, 2021, each having a closing date of January  
25, 2021, for a “Temporary Part Time” Patient Care Technician of one year duration (for Posting  
Number 2021-19748), of “approximately 9 months” duration (for Posting Number 2021-19749)  
and of “approximately 8 months” duration (for Posting Number 2021-19750). The Grievor  
applied to all of these on the date they were posted via computer, submitting the same  
“unfortunate” résumé with each one. She received the same email acknowledgement from the  
Hospital as in her earlier applications, stating in part: “we will contact you soon, should we feel  
that your background meets our current needs.”  
[24] Each of these job postings set out identical background information and the key  
qualifications concerning the position of Patient Care Technician, as reproduced below:  
Page 8 of 45  
Trillium Health Partners (TPH) is one of the largest community-based care facilities in Canada.  
Comprised of the Credit Valley Hospital, the Mississauga Hospital and the Queensway Health  
Centre, Trillium Health Partners serves the growing and diverse populations of Mississauga, West  
Toronto and surrounding communities and is a teaching hospital affiliated with the University of  
Toronto.  
…
Key Qualifications  
Completion of a recognized Post-Secondary Education Program in Laboratory Medicine  
Commitment to complete education and obtain certification in OSMT3 or CSMLS4 within 3  
months of hire  
Recent and related experience in E.C.G. and Phlebotomy in an acute care setting  
required  
Registration with a professional body in one of the above areas is an asset  
Current B.C.L.S. certificate is an asset  
Strong interpersonal skills and demonstration of patient focused approach to care  
Ability to read and write & speak English: second language is considered an asset  
Ability to meet the physical demands – constant walking, standing, pushing  
Positive attendance and work performance required  
Perform E.C.G.’s, Venipuncture and Capillary Collections on Inpatients and Outpatients  
Maintain, troubleshoot and make minor repairs to ECG MACHINES  
Work in compliance with Occupational Health and Safety Act  
Internal candidates who believe they possess the necessary qualifications and experience for this  
position and who have been in their current position for at least six (6) months are encouraged to  
apply.  
To pursue this career opportunity, please visit our website: www.trilliuimhealthpartners.ca  
[25] In taking me through each of the “key qualifications” for the Patient Care Technician  
position, the Grievor expressed her opinion that she had fully met the minimum qualifications for  
the position at the time of the job postings. Yet, the Hospital never interviewed her or even  
contacted her in connection with any of her five applications. Instead, there is no dispute that the  
Hospital hired other existing members of staff with less seniority or individuals from outside of  
the bargaining unit altogether.  
2
The second email sent at 3.06 P.M. referenced this second Posting Reference but was otherwise identical to the  
earlier 3:00 P.M. response to Posting Number 2020-19491.  
3 Ontario Society of Medical Technologists  
4 Canadian Society for Medical Laboratory Science  
Page 9 of 45  
[26] The Grievor testified and filed supporting documents showing that she successfully  
completed a recognized Post-Secondary Education Program in Laboratory Medicine through the  
CDI College of Business, Technology and Healthcare, passing the required provincial  
examinations on November 21, 2020 (more than one month before she applied to the first of the  
job postings). However, she acknowledged there is a second component of the training process  
referred to a “practicum”, requiring that she complete 150 hours of actual experience in a work  
environment before graduating with a certificate from the College as a Medical Laboratory  
Assistant/Technician. She did not complete the practicum part of her training until January 7,  
2021, which was required to graduate from the CDI College, and did not receive her formal  
certification from the Medical Laboratory Professional Association of Ontario, known as the  
“MLPAO” (the successor of Ontario Society of Medical Technologists, or “OSMT”) and  
confirmation of her registration in that organization, until January 22, 2021 (none of which was  
mentioned on her résumé or filings for any of the job postings).  
[27] In describing the practicum component of her training, the Grievor testified she originally  
applied for an appropriate training opportunity at THP, which was unsuccessful because the  
Hospital was not taking any technician students in its lab at the time (due to COVID and other  
restrictions). She eventually secured a practicum with a “Vital Urgent Care & Walk-In Clinic”  
located in Mississauga,5 commencing on November 30, 2020, that she finished on January 7,  
2021. She described Vital Urgent Care as a facility “where patients walk in with minor urgency  
such as a dislocated shoulder, big cut or open wounds,” that she testified was “like a mini-  
emergency department” with people coming in “from babies to seniors”.  
[28] Among her duties at Vital Urgent Care, she performed phlebotomies (i.e., venipuncture or  
the drawing of blood) for an estimated 8 – 10 patients per shift. She also prepared patients for  
and administered ECG tests at the same estimated frequency, along with general duties that  
included opening all computers in the morning, checking patient temperatures, reviewing  
5
In fact, on closer review of the documentation filed by the Union related to this practicum, it showed that the  
location of the facility was at 10 Neighbourhood Ln. Unit 103, which is in Brampton, Ontario, that the witness used  
interchangeably with Mississauga.  
Page 10 of 45  
doctors’ requisitions for bloodwork, ECGs and other orders, administering vaccines, changing  
wound dressings, removing stitches, operating a centrifuge and labelling blood specimens, at  
what she characterized as “a very fast pace”. She described an environment where patients lined  
up under their own power to have their doctors’ orders or requests to see an attending physician  
assessed, following which appropriate services were rendered by the medical staff and  
technicians in private cubicles.  
[29] The Grievor received excellent performance reviews and was hired back by Vital Urgent  
Care & Walk-In Clinic after her practicum finished  
[30] When asked to explain her understanding of “acute care” the Grievor testified that,  
“Acute care I thought was something urgent; something to be taken care of quick” and based on  
that definition offered the opinion that her work at Vital Urgent Care was “acute care” because,  
“anyone can walk through that door.” With that kind of experience over the five weeks of her  
practicum, the Grievor concluded she had satisfied one of the key qualifications in the Patient  
Care Technician job posting, being “Recent and related experience in E.C.G. and Phlebotomy in  
an acute care setting”.  
[31] However, in cross-examination the Grievor clarified she hadn’t fulfilled the requirements  
to become a Medical Laboratory Assistant/Technician until completing the practicum component  
on January 7, 2021, and then didn’t receive her diploma from CDI College (dated January 6,  
2021) until later in May of 2021. (This was of course, after the closing date of January 5, 2021,  
for the first batch of job postings she applied for as a part-time Patient Care Technician.) She also  
conceded she never had a job doing venipuncture and/or ECGs inside a hospital setting and she  
never updated her résumé to include the completion of her training when she applied for the  
second batch of job postings on January 18, 2021, for three temporary part-time positions limited  
respectively to one year, nine months and eight months in duration.  
(c)  
The Union’s Take on the Matter – With Help from the Internet  
Page 11 of 45  
[32] The Union offered its perspective through the testimony of Ms. Laura Murchison, who  
has been an RPN at the Mississauga Hospital site (and predecessor) since November 1988 and a  
Union steward from 2015, becoming Chief Steward in or around 2017.  
[33] From her vantage of witnessing the Patient Care Technicians working in the hospital over  
the years, Ms. Murchison felt herself qualified to express an opinion on their job duties. From  
what she could see, Ms. Murchison testified that PCTs conducted “routine blood draws and  
routine ECGs on the general floors and go to the emergency departments” to perform that  
function as well (although in cross-examination she conceded she didn’t know how many blood  
draws that the PCTs were required to perform in an average shift). She also noted that  
“sometimes the patient might have delirium or might be moving around” or have “bad veins”  
making it more difficult to draw blood or administer ECGs, requiring the assistance of other staff  
members that were often RNs.  
[34] As Chief Steward Ms. Murchison felt qualified to offer her opinion on the way that  
internal promotions have occurred at the Hospital over the years, as well. According to her, the  
procedure for internal promotions at the Hospital has always been that interested bargaining unit  
members would submit a paper application for the job posting “and no résumés were attached to  
that”. (Nevertheless, in cross-examination, Ms. Murchison noted that when she applied to her  
current position in cardiology from the neurology department about seven years prior to her  
testimony, she submitted a résumé with her application.)  
[35] After the posting period closed, Ms. Murchison also expressed her view based on  
experience that the hiring manager would “go down the list” of internal applicants in order of  
seniority, contacting the person directly “to see if they have the actual qualifications” for the job.  
Through that process, she testified the most senior bargaining unit employee having the minimal  
qualifications would then be selected, and his or her name would be announced on the bulletin  
board for the information of all interested staff.  
Page 12 of 45  
[36] One of the issues in this case is whether the Grievor satisfied the minimum qualification  
noted on all the PCT job postings of, “Recent and related experience in E.C.G. and Phlebotomy  
in an acute care setting”. Although Ms. Murchison’s entire career as an RPN had been limited to  
her work at the Mississauga Hospital site, she nevertheless felt qualified to offer her further  
opinions on the differences (if any) between “acute care” and “urgent care”, as those terms are  
typically used in medical parlance.  
[37] To that end, Ms. Murchison testified that a few weeks prior to these arbitration  
proceedings she conducted her own research on the Internet in support of her (and the Union’s)  
view that the Grievor’s practicum at the Vital Urgent Care & Walk-In Clinic in Mississauga  
satisfied the definition of “acute care” in the Hospital’s posting for the Patient Care Technician.  
Through Ms. Murchison the Union therefore sought to enter into evidence three articles from the  
Internet identified as: (a) a scholarly paper published online by the “Bulletin of the World  
Health Organization” on January 31, 2013, entitled “Health systems and services: the role of  
acute care”, apparently written by seven members of the “Acute Care Research Collaborative at  
the University of Maryland Global Health Initiative”6; (b) a short paper published by an  
organization calling itself “PCP FOR LIFE” exploring the question; “What Are Examples of  
Acute Care?”; and (c) an excerpt from the self-proclaimed on-line encyclopedia, “WIKIPEDIA”,  
entitled “Acute care”.  
[38] The Hospital objected to the admissibility of this documentation on the grounds of it  
being “hearsay”, having no demonstrated relationship whatsoever to either the situation at  
Mississauga Hospital and/or Vital Urgent Care & Walk-In Clinic, while being prejudicial to the  
Hospital’s interest which had no opportunity to cross-examine anyone on this documentation, to  
probe its context, operating premises, etc., to the extent that may be relevant.  
[39] I, nevertheless, allowed the Union to adduce this evidence, with the express caveat that I  
did not view any of this documentation as authoritative to the circumstances at the Hospital,  
leaving it to the parties to argue what weight, if any, I could give to the general information  
Page 13 of 45  
otherwise expressed therein. As it turned out, for reasons that I will elaborate upon now, I  
determined that I could give little, if any, weight to this documentation.  
[40] The first Internet paper entitled, “Health systems and services: the role of acute care”,  
was published almost a decade ago online by the “Bulletin of the World Health Organization”  
which defines itself as “a fully open-access journal of public health with a special focus on low  
and middle-income countries” (emphasis in original). At first blush, that does not seem to be  
directed at the metropolitan population of West Toronto and Mississauga where the Hospital in  
the present case is located, raising concerns over its relevance to the situation before me.  
[41] The introductory paragraph of the paper identifies the supposed problem of fragmenting  
healthcare services into different subcomponents of “acute” and “chronic” (with presumably  
everything in between), advocating for the integration of healthcare (particularly in developing  
countries that are the focus of the WHO) into an idealized single or integrated model of service  
delivery, demonstrating a particular bias or perspective to the article which may not be germane  
to the situation at Mississauga Hospital.  
[42] In that context the authors propose the following current definition and proposed  
definition of “acute care”:  
Defining acute care  
Clear definitions of health systems and services are required to create a common language to  
encourage discussion and help focus system development efforts. Health systems include all  
organizations, institutions and resources “whose primary purpose is to promote, restore and/or  
maintain health.” Health services are “aimed at contributing to improved health or to the diagnosis,  
treatment and rehabilitation of sick people, and they can be viewed from serval perspectives: (i) as  
actions to organize the inputs necessary for the provision of effective interventions; (ii) as inclusive  
of promotion, prevention, cure, rehabilitation and palliation efforts, and (iii) as oriented towards  
either individuals or populations.  
Acute care must also be clearly defined: standard medical definitions for acuity emphasize the  
singular attribute of time pressure. Acute services therefore include all promotive, preventive,  
curative, rehabilitative or palliative actions, whether oriented towards individuals or populations,  
whose primary purpose is to improve health and whose effectiveness largely depends on time-  
sensitive and, frequently, rapid intervention.  
6 The article is formally cited as Bull World Health Organ 2013-91: 386-388  
Page 14 of 45  
…
…A proposed definition of acute care includes the health system components, or care delivery  
platforms, used to treat sudden, often unexpected, urgent or emergent episodes of injury and  
illness that can lead to death or disability without rapid intervention. The term acute care  
encompasses a range of clinical health-care functions, including emergency medicine, trauma  
care, pre-hospital emergency care, acute care surgery, critical care, urgent care and short-term  
inpatient stabilization.  
[43] The second Internet source of information submitted through Ms. Murchison was from a  
website called, “PCP For Life” which offered the following definitions of “acute care” and  
“urgent care”:  
What Are Examples of Acute Care?  
Buzz words are pretty popular in medicine. It can be difficult to know what everything means when  
you go to the doctor’s office. However, it is important to try to make sense of some basic medical  
terms so that you can understand the treatment you are receiving. Today, we will discuss acute  
care, which includes many common medical services. What are some examples of acute care?  
Let’s discuss a few examples.  
Acute Care Definition  
Acute care is simply an active treatment for short-term needs. In contrast, long-term care is for  
patients who need assistance to function in their daily lives. Practitioners try to make this care fit  
seamlessly into a patient’s routine. Long-term care is often performed in a group home, nursing  
home, or in a person’s resident. Acute care is often performed in a hospital setting or doctor’s  
office for quick, urgent treatment.  
Emergency rooms serve patients with acute needs. Often, these needs include accidents, injuries,  
or sudden medical needs. Emergency rooms are equipped to handle rapidly changing conditions  
for accurate care at all times.  
…
Urgent Care  
Urgent care centers (such as PCP For Life) are another great example of acute care. Sometimes,  
a patient has an urgent non-emergency need. Patients can visit an urgent care for sudden  
sicknesses, minor injuries, or also for primary care purposes.  
…
[44] In looking closer at the “PCP For Life” website (which is not immediately apparent from  
the short excerpt filed by the Union), I noted the words, PCP stand for, “Primary Care  
Physicians” which is identified as providing a walk-in type of urgent care service at different  
locations in the Houston, Texas metropolitan area, staffed by two primacy physicians, two  
Page 15 of 45  
“physician assistants” and 12 “family nurse practitioners”. Its website includes the following  
highlighted “disclaimer” at the bottom of its “information”, causing one to question how much  
weight can be given to any of its statements:  
Disclaimer – Use at Your Own Risk: - The information on this website is for general  
information purposes only. Nothing on this site should be taken as advice for any  
individual case or situation. Any action you take upon the information on these blogs are  
strictly at your own risk. We will not be liable for any losses or damages in connection with  
the use of the information from these blogs.  
[45] It is difficult to give much credence to a document that is really a form of advertising by  
two physicians promoting their brand of healthcare services to a metropolitan Houston  
population that is not prepared to be accountable for the words written on its website.  
[46] The final Internet reference provided through Ms. Murchison is from WIKIPEDIA, which  
advertises itself as: “The free encyclopedia that anyone can edit”, leading to the question: Who  
are the people who wrote on “acute care”, and what are their qualifications to do so?  
Acute care is a branch of secondary health care where a patient receives active but short-term  
treatment for a severe injury or episode of illness, an urgent medical condition, or during recovery  
from surgery. In medical terms, care for acute health conditions is the opposite from chronic care,  
or long-term care.  
Acute care services are generally delivered by teams of health care professionals  
from a range of medical and surgical specialties. Acute care may require a stay in  
a hospital emergency department, ambulatory surgery centre, urgent care centre or  
other short-term stay facility, along with the assistance of diagnostic services,  
surgery, or follow-up outpatient care in the community. Hospital-based acute  
inpatient care typically has the goal of discharging patients as soon as they are  
deemed healthy and stable. Acute care settings include emergency department,  
intensive care, coronary care, cardiology, neonatal intensive care, and many  
general areas where the patient could become acutely unwell and require  
stabilization and transfer to another higher dependency unit for further treatment.  
[47] Nevertheless, and without any critical assessment of these sources in relying on the  
foregoing definitions of “acute care’ that she found on the Internet, Ms. Murchison testified that  
the Grievor’s practicum at the Vital Urgent Care & Walk-In Clinic was, on her reading of these  
Internet authorities, sufficient to satisfy the broad definition of “acute care” encompassed by the  
Page 16 of 45  
Hospital’s requirement for “recent and related experience in E.C.G. and Phlebotomy in an acute  
care setting” in the job postings for Patient Care Technicians.  
[48] This was notwithstanding Ms. Murchison’s concession in cross-examination that she has  
never worked at the Vital Urgent Care Centre & Walk-in Clinic, or in any setting other than the  
Mississauga Hospital site as an RPN, raising concerns over her frame of reference in making  
these confident claims.  
[49] In my respectful view, the foregoing definitions of “acute care” highlight the reality that  
there is simply too much unattributed and unaccountable “information” on the Internet touted as  
“authority” to have credibility before an arbitrator in a quasi-judicial proceeding. Aside from the  
“disclaimer” of the PCP website and the apparent self-interest in promoting a particular utopian  
view of the future of healthcare in the “Bulletin of the World Health Organization” article,  
undermining the objectivity of anything written on those two sites, there is often no way of  
knowing where the “information” comes from and/or what assumptions, biases or hidden  
agendas lay below the surface; with no opportunity to cross-examine the “authors” to explore the  
quality of their research and/or reliability of their underlying premises who, in the majority of the  
Internet materials presented to me, are unidentifiable if they even exist as a single person or  
discernable group of people.  
[50] These kinds of sources of authority cannot be taken at face value, but rather must be  
scrutinized with a critical eye before admitted into evidence.  
[51] Without that kind of rigorous vetting, I conclude the various “Internet authorities”  
submitted through Ms. Murchison can be given little, if any, weight. And in hindsight, while  
recognizing that arbitrators have wide discretion to permit evidence that is not admissible in a  
court of law (but subject always to the requirement of fundamental fairness to both sides), I regret  
even allowing this inherently unreliable documentation into evidence without subjecting it to an  
appropriate standard of proof, because of the excessive time spent by counsel examining and  
cross-examining witnesses on the minutia of the various definitions of “acute care” offered by  
Page 17 of 45  
these questionable “authorities”, having as it turned out, little to no value in assessing the merits  
of the grievance before me related to the specific circumstances of the job posting in dispute at  
the Mississauga Hospital site.  
(d)  
The Hospital’s Assessment of the Grievor’s Qualifications  
[52] Returning to the merits and focusing on the actual workplace in issue, the Hospital relied  
primarily on testimony from Ms. Joanne Bishop in answering the Union’s claims of violating the  
collective agreement in the way it dealt with the Grievor’s multiple applications for the Patient  
Care Technician job postings.  
[53] Ms. Bishop has been the Hospital’s “Laboratory Manager for Quality Point of Care and  
Safety” working out of the Mississauga Hospital site since December of 2019, having previously  
worked in a similar capacity for many years at another Metropolitan Toronto teaching hospital.  
She testified her primary responsibilities were to keep the laboratory on track to meet  
accreditation obligations and good laboratory practices, including management of the “point of  
care area” which she described as, “doing testing at bedside or in the Operating Rooms where the  
patients need immediate results for immediate treatment.” About 35 Patient Care Technicians  
(who are required to provide point of care services to a large Inpatient and Outpatient population)  
reported to Ms. Bishop between June of 2020 and January of 2021, while she was “backfilling”  
for another manager, which included the timeframe covering the five job postings in the present  
case, for which she was the “hiring manager”.  
[54] Ms. Bishop’s role as hiring manager was to review all the applications for the Patient  
Care Technician job postings submitted by the closing dates, from which she would choose the  
candidates to be interviewed. Then, with the assistance of another manager on her “team”, she  
conducted interviews among those considered to have the minimum qualifications for the  
position, ultimately selecting the successful candidate(s) in a collaborative exercise with the other  
manager.  
Page 18 of 45  
[55] Procedurally, Ms. Bishop testified she would receive a list of applicants from within the  
Union’s bargaining unit along with their résumés typically attached to each application after the  
closing date, which she would first consider before any candidates from outside the bargaining  
unit. She interviewed internal candidates whose applications indicated they had the minimum  
qualifications first, moving to consider external applicants if there were an insufficient number of  
internal candidates for the available jobs.  
[56] Applying her usual practice, Ms. Bishop confirmed that she didn’t interview the Grievor  
for any of the five job postings because the Grievor’s résumé indicated she hadn’t satisfied the  
three most important of the key qualifications listed on the postings; namely (i) the minimum  
educational requirement (instead stating the status of her education as a Medical Laboratory  
Assistant/Technician was “2019 – present”, indicating to Ms. Bishop that her basic education had  
not been completed); (ii) there was no indication she had received or was in the process of  
qualifying for the OSMT or CSMLS certifications; and of particular importance, (iii) the  
Grievor’s résumé did not demonstrate “recent and related experience in E.C.G. and Phlebotomy  
in an acute care setting”.  
[57] Elaborating on the duties of the Patient Care Technicians, Ms. Bishop explained they are  
expected to provide ECG and Phlebotomy services in every area of the hospital except for the  
Intensive Care Unit. On a typical morning, one or two PCTs per floor are dispatched through the  
Hospital’s electronic system to take bloodwork from 200 – 300 patients between 5:30 a.m. and  
9:30 a.m., and after that on an ad-hoc basis as patients require their services throughout the day  
(however at lower volumes per hour). Since the Mississauga Hospital site is a primary heart and  
stroke facility, a number of patients are seriously ill waiting for heart surgery or have been  
admitted to its stroke program with poor circulation. Thus, Ms. Bishop testified that these  
cardiac and stroke patients receive ECG and Phlebotomy services at their bedsides, many having  
medical conditions that make it difficult to draw blood.  
[58] This, according to Ms. Bishop, is the reality of the Hospital’s acute care setting, where the  
PCTs must work efficiently and safely through large numbers of often very sick patients (some  
Page 19 of 45  
who have arrived by ambulance), throughout the facility but mostly at the patient’s bedside, in  
numbers exceeding one hundred per shift.  
[59] Although Ms. Bishop had never worked at the Vital Urgent Care & Walk-In Clinic, from  
her general knowledge and having reviewed the descriptive information about that facility on the  
Clinic’s website, she likened it to a type of “doctor’s office” where patients walked in for  
treatment by a medical team that while important, did not amount to the same kind of critical and  
often life-threatening conditions requiring services at bedside faced by many of the patients at the  
Hospital, which is an “acute care” setting. The Phlebotomies and ECGs conducted in those  
Clinics were primarily on a stable population at a private cubicle, in nowhere near the volumes  
expected of the PCTs at the Mississauga Hospital site.  
[60] As an alternative to completing the practicum component of their education at the  
Hospital itself (which was not available at the time), Ms. Bishop testified she had accepted  
candidates who had worked at a provincially licensed “LifeLabs” or “Dynacare” facility, which  
she knew from her own observations of one such facility located next to the Hospital, required  
the technicians to perform between 60 – 75 venipunctures per four-hour shift. On that  
understanding Ms. Bishop testified she accepted two candidates for the PCT job postings who  
had worked at a LifeLab location for their practicum, one from within the bargaining unit but  
having less seniority than the Grievor, and the other an applicant from outside the Hospital.  
[61] In cross-examination, Ms. Bishop was vigorously challenged on three main areas of her  
testimony in-chief. Much time was spent taking her through the “Internet authorities” filed  
through Ms. Murchison that attempt to converge concepts of “urgent care” with “acute care”,  
having little to no effect. While Ms. Bishop agreed with certain aspects of the definitions of  
acute care offered by those authorities, she generally maintained her view that the requirements  
of the PCTs at the Mississauga Hospital with its focus on heart and stoke patients in serious to  
life-threatening condition, were at a level of intensity much greater than her understanding of the  
work at the Vital Urgent Care & Walk-In Clinic; particularly in connection with the quantity and  
nature of the venipuncture requiring the technicians to insert needles into hundreds of often  
Page 20 of 45  
compromised arms per shift at bedside. Consequently, she did not regard the Vital Urgent Care  
& Walk-In Clinic to be an “acute care’ facility.  
[62] Ms. Bishop also agreed in cross-examination that she was looking for the best candidates  
for the PCT job postings, leading to repeated suggestions that she had misinterpreted the proper  
test to apply under the collective agreement which was to select the senior bargaining unit  
employee with the threshold qualifications to perform the work rather than choosing the best  
candidate. In the present case it never got to the point of a choice between the Grievor and a  
bargaining unit employee with less seniority because the Grievor did not get past the threshold of  
demonstrating the minimum qualifications for the job, in Ms. Bishop’s opinion.  
[63] Further to that point, Ms. Bishop was confronted with the undenied fact that the  
Hospital’s Human Resources “Recruitment Specialist”, identified as Ms. Christina Bifolchi, who  
was responsible for vetting the applications for the PCT job postings and submitting the ones she  
thought met the minimum qualifications for further review should be determinative on that  
question, which Ms. Bishop disputed. Ms. Bishop maintained that the role of the Recruitment  
Specialist, was more of an administrative function to compile the paperwork for Ms. Bishop’s  
review, who had the decision-making authority as hiring manager.  
[64] That the Recruitment Specialist had forwarded the Grievor’s paperwork could not be  
taken as a concession that the Grievor had the minimum qualifications for the job, according to  
Ms. Bishop. In that regard Ms. Bishop referred to two of the referral letters from the Recruitment  
Specialist for the January 18, 2021 job postings where in submitting the list of applicants for the  
postings, Ms. Bifolchi wrote the following to Ms. Bishop (explicitly commenting on the  
Grievor’s qualifications for the position, who is referred to as “Kaltrina”):  
Here are the internal applicants that applied to the above noted position. It doesn’t look like any  
of the CUPE internal applicants meet the qualifications of the role. Kaltrina has ECG &  
phlebotomy experience, but it is in an urgent care setting. I am not sure if you would  
consider this acute…  
[Emphasis added]  
Page 21 of 45  
[65] The third major area of cross-examination directed at Ms. Bishop was her alleged failure  
to recognize that among the key qualifications for the Patient Care Technician job postings was  
the: “commitment to complete education and obtain certification in OSMT or CSMLS within 3  
months of hire” (emphasis added).  
[66] Where the evidence showed that the Grievor in fact achieved her OSMT (or MLPAO)  
certification after completing the educational requirements for the Medical Laboratory  
Technician/Assistant in early January 2021, the Union claimed the Hospital violated the  
collective agreement by incorrectly concluding the Grievor didn’t have that qualification. At a  
minimum, Ms. Bishop was pressed to concede that she should have at least conducted an  
interview with the Grievor to make inquiries on the status of her education that she had three  
months to complete, which Ms. Bishop denied.  
[67] However, according to Ms. Bishop, the Hospital was permitted to rely upon the Grievor’s  
statement in her résumé that her education was not complete as of the time of her applications  
(with no indication that it would be satisfied within three months). In any event, even if the  
Grievor had made that clear, she would not have been offered an interview because of Ms.  
Bishop’s conclusion that the Grievor did not meet the kind of “recent related experience in  
E.C.G. and Phlebotomy in an acute care setting” reasonably required by the Hospital.  
(e)  
The Human Resources’ Role  
[68] The Hospital’s final witness was Ms. Cheryl Provencher, who was identified as the  
“Interim Lead of Employee and Labour Relations”. She commenced her employment with the  
Credit Valley Hospital in 2011, and after one year as an HR Recruitment Specialist, has held  
positions as a “Human Resources Business Partner” with THP and/or its predecessors before her  
current “Interim Lead” role.  
[69] Ms. Provencher described the procedure for considering applications for positions in the  
bargaining unit from existing Union members as follows: Approximately 90 – 120 jobs are  
Page 22 of 45  
posted online and on the internal bulletin boards every Tuesday and Thursday for seven days  
(which is the posting period mandated by the collective agreement). For a position in the CUPE  
bargaining unit, the Hospital typically receives over 40 internal applicants for each full-time and  
10 – 20 applicants for every part-time job posting.  
[70] There are two to three Recruitment Specialists assigned to the Human Resources  
Department responsible for coordinating all of the applications from CUPE bargaining unit  
employees.  
[71] Ms. Provencher testified that job postings are processed online via computer (replacing  
the paper system in place approximately five years ago). A person interested in applying for a  
job posting online is required to set up a “profile”, and the application goes through a tracking  
system referred to as “ICISM”.  
[72] Every applicant is directed to indicate whether he or she is an internal or external  
candidate, and each application must include a copy of the candidate’s résumé. As part of the  
computer program, the applicant is asked to submit a résumé with every application to additional  
postings; and given the option of “saving” the résumé on his or her profile for future use. The  
applicant can also update or amend the résumé on his or her profile with every subsequent  
application.  
[73] According to Ms. Provencher, this online procedure was discussed with the Union when  
it came into effect five years ago. The Hospital makes several computers available for employees  
who do not have their own for making online applications (with support from Human Resources  
officials if they need help in doing so). Ms. Provencher testified that an employee could also  
submit a paper application for a job posting if he/she didn’t want to apply online.  
[74] After the closing date of an application, the Human Resources (“HR”) Recruitment  
Specialist responsible for the posting prepares a list of all internal candidates, from highest to  
lowest seniority ranking. It is the practice then to forward a list of the “top 10” internal  
Page 23 of 45  
candidates in order of seniority and their accompanying information to the hiring manager for the  
posting. This, according to Ms. Provencher, does not constitute a listing of the qualified  
candidates in seniority order, as only the hiring manager can decide whether a candidate meets  
the minimum qualifications for the position.  
[75] While making it clear that the standard for awarding job postings in the CUPE bargaining  
unit was “the most senior qualified applicant”, Ms. Provencher testified that the reason for  
submitting the application information on more than the apparent most senior qualified  
candidate, is that the hiring manager will have to come to his/her own decisions on whether the  
minimum qualifications have been met, and then will typically have a “meet and greet” session  
with several of the applicants.  
[76] In the event the most senior qualified employee decides to withdraw his or her application  
(which occasionally happens), the opportunity will pass to the next senior qualified candidate,  
who will already have had a chance to speak with the hiring manager about his/her interest and  
qualifications for the job. In the event a hiring manager did not want to offer the position to the  
most senior qualified candidate, the Recruitment Specialist would explain the Hospital’s  
obligations under the collective agreement with the assistance of the Human Resources Business  
Partner, if necessary.  
[77] In cross-examination, Ms. Provencher clarified that in discussions with the Union, the  
Hospital had agreed that in the case of lateral moves (i.e., from an employee in a particular job,  
transferring in response to a job posting to the same position at a different hospital site or shift)  
the applicant would not be required to file a résumé with his/her application. However, that  
procedure did not apply to the job postings at issue in the present case.  
[78] Moreover, in the face of close questioning, Ms. Provencher was steadfast in cross-  
examination that the mere listing of an applicant’s name as the person with the highest seniority  
applying for a CUPE position was not determinative of whether that person met the minimum  
qualifications for the job.  
Page 24 of 45  
[79] Rather, Ms. Provencher was steadfast that that determination was the responsibility of the  
hiring manager. And as applied to the circumstances of the present case, the mere fact that the  
Grievor’s name appeared at the top of a list of internal candidates for the PCT job postings of  
December 29, 2020 and January 19, 2021 prepared by the HR Recruitment Specialist, could not  
be read as identifying the senior qualified candidate, which was the sole decision of the hiring  
manager, Ms. Bishop.  
IV.  
The Parties’ Arguments  
[80] Notwithstanding the grievance claiming that the Hospital contravened, “Articles B, article  
9 all, article 20 and any other related articles, Hospital policies, Ontario Human Rights Code,  
Codes, Government Legislature or related articles and legislature”, both parties confined  
themselves to the question of whether the Hospital violated of article 9.05(d) of the collective  
agreement, which is reproduced below in relevant context:  
Page 25 of 45  
9.05 – JOB POSTING  
…
(a) Where a permanent vacancy occurs in a classification within the bargaining unit or a new  
position within the bargaining unit is established by the Hospital, such vacancy shall be posted  
for a period of seven (7) consecutive calendar days. Applications for such vacancy shall be  
made in writing within the seven (7) day period referred to herein.  
(b) The postings shall stipulate the qualifications, classifications, rate of pay, department and  
shift and a copy shall be provided to the Chief Steward.  
(c) Vacancies created by the filling of an initial permanent vacancy will be posted for a period of  
three (3) consecutive calendar days, excluding Saturdays, Sundays and Holidays.  
Applications for such vacancy shall be made in writing within the three (3) day period referred  
to herein.  
(d) In matters of promotion and staff transfer appointment shall be made of the senior  
applicant able to meet the normal requirements of the job. Successful employees need  
not be considered for other vacancies within a six (6) month period unless an opportunity  
arises which allows the employee to change his or her permanent status.  
(e) The Hospital agrees that it shall post permanent vacant positions within 30 calendar days of  
the position becoming vacant, unless the Hospital provides the Union notice under Article  
9.08(A)(a) of its intention to eliminate the position.  
(f) The name of the successful applicant will be posted on the bulletin board for a period of seven  
(7) calendar days.  
(g) Where there are no successful applicants from within this bargaining unit for vacant positions  
referred to in this Article, employees in other CUPE bargaining units at the Hospital will be  
selected in accordance with the criteria for selection above, prior to considering persons who  
are not members of CUPE bargaining units at the Hospital . The employees eligible for  
consideration shall be limited to those employees who have applied for the position in  
accordance with this Article, and selection shall be made in accordance with this Article.  
(h) The successful applicant shall be allowed a trial period of up to thirty (30) days, during  
which the Hospital will determine if the employee can satisfactorily perform the job.  
Within this period the employee may voluntarily return, or be returned by the Hospital to the  
position formerly occupied, without loss of seniority. The vacancy resulting from the posting  
may be filled on a temporary basis until the trial period is completed.  
(i) A list of vacancies filled in the preceding month under this Article and the names of the  
successful applicants will be posted, with a copy provided to the union.  
[Emphasis added]  
Page 26 of 45  
(a)  
The Union  
[81] On behalf of the Union, Mr. Mandryk claimed that as the senior internal qualified  
candidate for each of the five Patient Care Technician postings in dispute, the Grievor was  
entitled to one of the job postings in accordance with article 9.05 of the collective agreement  
which the Union characterized as a “sufficient” or “threshold” ability clause. Under such  
contractual provisions, the applicant with the most seniority gets the job so long as he or she  
meets its normal requirements. Instead, the Union submitted that in bypassing the Grievor for the  
promotional opportunity the Hospital violated the collective agreement, while acting arbitrarily  
and unreasonably in the process.  
[82] The Union cited the following general principles long accepted by arbitrators in  
promotion cases, which it urged me to apply in the circumstances of the present case: (i) an  
applicant’s relative seniority is crucial in a unionized environment and is central to the posting  
procedure under a “sufficient” or “threshold” ability clause such as article 9.05(d); (ii) the  
senior qualified applicant need not be the best or most qualified applicant, but must simply be  
able to meet the normal requirements of the job; (iii) the Hospital is entitled to set the  
qualifications, but they must be reasonable. Qualifications are not reasonable when they go  
beyond what is required to be able to perform the job; (iv) arbitrators are entitled to review the  
process by which the Hospital applies the required qualifications, which cannot be applied  
arbitrarily, in bad faith, or in a discriminatory manner; (v) for an experience requirement to be  
reasonable, it must be necessary for the adequate performance of the duties and responsibilities  
of the job; (vi) in determining whether an individual is qualified, the Hospital must consider  
whatever equivalent qualifications are brought to the competition by the individual; (vii) required  
qualifications must be clearly stipulated in the job posting in order to comply with article 9.05(b);  
and (viii) the trial period referred to in article 9.05(h), which has been described as a  
“safeguard”, allows the Hospital to ensure that it has in fact made the correct decision.  
Page 27 of 45  
[83] Applying the foregoing principles, the Union submitted that the Hospital acted arbitrarily,  
unreasonably and in violation of article 9.05(d) by concluding that the Grievor’s application did  
not meet the following three key qualifications listed in the job posting that are in dispute  
between the parties: (1) Completion of a recognized Post-Secondary Education Program in  
Laboratory Medicine; (2) Commitment to complete education and obtain certification in OSMT  
or CSMLS within 3 months of hire; and (3) recent and related experience in E.C.G. and  
Phlebotomy in an acute care setting.  
[84] On the question of the Grievor’s educational qualifications, notwithstanding the Grievor’s  
“unfortunate” way that she listed her studies as “2019 – present” on her résumé, the evidence  
supported the conclusion that she had already completed the minimum educational requirements  
by the time she applied to the first job postings, according to the Union. The Union submitted  
that the Hospital could not rely upon the Grievor’s misstatement to disqualify her from  
consideration because: (a) the educational requirement listed in the job posting did not need to be  
completed until three months post-hire; (b) the evidence suggested that the Grievor’s educational  
status was not the basis upon which the Hospital bypassed the Grievor; (c) the Grievor confirmed  
completion of her education in a “yes/no” question posed on the application forms; (d) the  
Grievor claimed to have advised Ms. Bishop and Ms. Bifolchi of her educational attainment prior  
to the awarding of the postings; (e) the Hospital was alleged to have corrected an error made by  
another applicant who failed to list herself as a current employee which it should have done in  
the Grievor’s case; (f) Ms. Bishop knew that the educational course was a one-year program and  
thus should have reasonably known that the Grievor had completed the course by the time she  
applied for the job postings; and in any event it was the Union’s contention that, (g) the Hospital  
had a duty to inquire whether the Grievor had completed the educational requirements before  
disqualifying the Grievor on that ground because of the passage of time between the applications  
and their review by Ms. Bishop.  
[85] As for the requirement that the Grievor commit, “to complete [her] education and obtain  
certification in OSMT or CSMLS within 3 months of hire”, the Union submitted that the  
evidence was conclusive that the Grievor was certified by the MLPAO and registered as a  
Page 28 of 45  
member in good standing by January 22, 2021, which was not necessary until three months after  
the Grievor was hired for the job. Consequently, the Union submitted there were no grounds to  
disqualify the Grievor because of this requirement.  
[86] The Union also submitted the evidence supported the conclusion that the Grievor  
satisfied the key qualification of “recent and related experience in E.C.G. and Phlebotomy in an  
acute care setting” because of the practicum she completed on January 7, 2021, at the Vital  
Urgent Care & Walk-In Clinic.  
[87] Relying on the Grievor’s testimony that Vital Urgent Care operated “like a mini-  
emergency department”, with patients of varying conditions and ages ranging “from babies to  
seniors”, the Union noted that the Grievor performed 8 – 10 ECGs and 8 – 10 phlebotomies  
during each shift, amounting to more than one hundred of such procedures over the course of her  
150-hour practicum, for which she received excellent performance reviews and was hired back  
by Vital Urgent Care after her practicum ended. Based on the definitions of “acute care” offered  
by Ms. Murchison, the Union urged me to find that the Grievor’s practicum satisfied the  
requirement of experience in an acute are setting.  
[88] Alternatively, if I concluded that the Grievor’s experience at Vital Urgent Care was not  
“acute care” experience, the Union submitted it was “equivalent experience” that the Hospital  
had the obligation to consider but failed to do so. The fact that Ms. Bishop confirmed that the  
Hospital accepted external candidates with experience at “LifeLabs” or “Dynacare”, which were  
not “acute care” facilities, but wouldn’t accept the Grievor’s experience at Vital Urgent Care,  
demonstrated the discriminatory way that the Hospital exercised its discretion, which the Union  
submitted was arbitrary and unreasonable.  
[89] Finally, the Union urged me to draw an adverse inference from the Hospital’s failure to  
call Ms. Christina Bifolchi as a witness, who acted as the HR Recruitment Specialist for the five  
job postings at issue. According to the Union, the evidence supported the conclusion that Ms.  
Page 29 of 45  
Bifolchi must have found that the Grievor had met the minimum qualifications for the PCT  
positions, which Ms. Bishop improperly ignored.  
[90] For the foregoing reasons, the Union submitted that I must conclude the Hospital acted  
arbitrarily and unreasonably in violation of article 9.05(d) of the collective agreement in  
bypassing the Grievor and failing to award any one of the disputed postings to the Grievor,  
consequently demanding that the Union’s grievance be allowed.  
[91] The Union also referred to the following authorities in support of its representations:  
Tung-Sol of Canada ltd. v. United Electrical, Radio and Machine Workers of America, Local 512  
(Collective Agreement Grievance), [1964] O.L.A.A. No. 9, 15 L.A.C. 16 (Ont. Arb.) (Reville),  
Sydney (City) v. C.U.P.E., Local 933 (1992), 24 L.A.C. (4th) 349 (N.S. Arb) (MacDonald), Re  
Scarborough General Hospital and C.U.P.E. (Lamson), 1994 CarswellOnt 6111, 36 CL.A.S. 318  
(Ont. Arb.) (Kirkwood), Re CUPE, Local 1623 and Health Sciences North (Gaudin), 2017  
CarswellOnt 17693, 133 C.L.A.S. A169 (Ont. Arb.) (Tremayne), Hospital Employees’ Union v.  
Hospital Employees’ Staff Union, [2001] B.C.C.A.A.A. No. 234, 99 L.A.C. (4th) 216 (B.C. Arb.)  
(Laing), Delta School Board District No. 37 v. C.U.P.E., Local 1091, 1994 CarswellBC 3232,  
[1994] B.C.C.A.A.A. No. 393, 38 C.L.A.S. 507, 46 L.A.C. (4th) 216 (B.C. Arb.) (Laing),  
C.U.P.E., Local 4463 v. Jordan Lifecare Centre, 2008 CarswellNB 476, [2008] N.B.L.A.A. No.  
8, 172 L.A.C. (4th) 216, 93 C.L.A.S. 266 (N. B. Arb.) (McEvoy), CUPE Local 3651 v.  
Markham-Stouffville Hospital, 2021 4704 (ON LA) (Ont. Arb.) (Jesin), Toronto Public  
Library v. C.U.P.E., Local 1996, 1989 CarswellOnt 3842, 13 C.L.A.S. 70, 5 L.A.C. (4th) 192  
(Ont. Arb.) (Burkett), Re Scarborough Hospital and C.U.P.E., Local 1487 (PSW Job Posting),  
2016 CarswellOnt 811, 125 C.L.A.S. 297, 266 L.A.C. (4th) 173 (Ont. Arb.) (Hayes), Re Health  
Sciences North and OPSEU, Local 659 (Little), 2017 CarswellOnt 11946, 132 C.L.A.S. 162  
(Ont. Arb.) (Slotnick), Pepsi-Cola Canada Beverages (West) Ltd. v. UFCW, Local 330W, 1994  
CarswellMan 657, 37 C.L.A.S. 99, 44 L.A.C. (4th) 47 (Man. Arb.) (Chapman), Re Yellow  
Pages Group Co. and Unifor, Local 6006 (Debideen), 2017 CarswellOnt 12675, [2017]  
O.L.A.A. No. 238, 132 C.L.A.S. 202, 285 L.A.C. (4th) 13, 2017  51488 (ON LA)  
(Luborsky), Re Canadian Standards Assn. and CUPE, Local 967 (Babic), 2012 CarswellOnt  
Page 30 of 45  
10807, [2012] O.L.A.A. No. 443, 112 C.L.A.S. A106, 223 L.A.C. (4th) 258 (Ont. Arb.)  
(Marcotte), and Brown, Donald J. M. & David M. Beatty, Canadian Labour Arbitration, 5th ed.  
(Toronto: Thomson Reuters, online), ¶3:5120 – Failure to call a witness.  
(b)  
The Hospital  
[92] Ms. Hunter, counsel for the Hospital, organized her arguments in disputing the Union’s  
grievance around two main points: First, the Hospital submitted it had the right to set the  
minimum qualifications for the five part-time (or part-time temporary) Patient Care Technician  
positions, which were reasonable in the circumstances, but the Grievor did not meet the  
minimum qualifications for the jobs, which was disqualifying. Second, the Hospital argued that  
the résumé submitted by the Grievor with her applications stated, on its face, that the Grievor did  
not meet the minimum educational qualifications for the position, which the Hospital was  
entitled to rely upon in reasonably denying further consideration of her applications. According  
to the Hospital, there was no obligation to reach out to the Grievor to confirm (or correct) the  
information that she submitted.  
[93] Detailing its first argument, the Hospital submitted that it had the contractual right to set  
qualifications for the position of Patient Care Technicians. The job postings required, among  
other things, that the incumbent have completed “a recognized Post-Secondary Education  
Program in Laboratory Medicine” and have “recent and related experience in E.C.G. and  
Phlebotomy in an acute care setting”, which the Grievor didn’t meet. The Hospital described  
these as reasonable requirements, considering the rigors of the PCT job for the patient population  
serviced by the Hospital.  
[94] Further, the Hospital maintained it had the right to determine what the word “acute”  
meant for purposes of the job postings (effectively denying any relevance of the “Internet  
authorities” filed by the Union on that question), which the Hospital had always interpreted to  
refer to a hospital environment in terms of the volume and generally serious and at times, life-  
threatening medical challenges (particularly in its heart and stroke departments) of much of the  
Page 31 of 45  
patient population. In this regard, the Hospital stressed its responsibility to the public it serves  
to ensure that anyone performing a high volume of what might sometimes be difficult  
venipunctures on severely ill patients, had the minimum experience to manage the job safely and  
effectively, which the Grievor’s application and résumé simply did not show.  
[95] Also, the Grievor’s application did not demonstrate that she had met the educational  
criteria for her first two applications because she had not (by the date of her application on  
December 29, 2020, and closing date of January 5, 2021) completed her practicum placement,  
according to the Hospital.  
[96] The Hospital’s second major point of argument was its strong objection to the Union’s  
suggestion, in the absence of clear language in the collective agreement to the contrary, that it  
had an obligation to go behind the Grievor’s job application to make inquiries or correct  
information that the Grievor provided on her résumé.  
[97] While taking the position that the grievance could be decided in the Hospital’s favour  
solely on the question of whether the Grievor met the minimum recent and related experience  
qualifications for the job, the Hospital submitted in the alternative, that the evidence supported  
the conclusion it reasonably required all applicants for the kind of position under consideration in  
the present case to file a résumé with each application, that the Hospital is entitled to rely upon in  
making decisions on whether the candidate meets the minimum requirements for the job.  
[98] In the present case, the Hospital argued that the evidence demonstrated that after Ms.  
Bishop, who was the hiring manager (rendering anything that Ms. Bifolchi might have to say on  
the matter irrelevant), reviewed the Grievor’s résumé from which she reasonably concluded the  
Grievor did not meet the minimum qualifications for the job, she was under no contractual  
obligation to go further to determine whether the submitted résumé was accurate, contrary to the  
Union’s submissions on point.  
Page 32 of 45  
[99] Rather, the Hospital asserted that the onus was on the candidate to put before the  
decision-maker the full scope of his or her education, experience and qualifications for the job  
posting applied for. If that was not the case, the Hospital would be in an untenable position of  
“guessing” whether it could rely upon the statements made in support of every application,  
requiring the Hospital to spend more time per application, which the evidence showed was  
already a time-consuming exercise given the high number of job postings at a facility like the  
Mississauga Hospital at any one time.  
[100] In the absence of a provision in the collective agreement to the contrary, which the parties  
had not negotiated in the present case, the Hospital submitted it was entitled to rely on the  
Grievor’s words on her résumé, whether “unfortunate” or not, leading Ms. Bishop to the  
reasonable conclusion that the Grievor did not have the minimum educational prerequisites for  
the PCT job. That being the case, the Hospital urged me to find it was not required to inquire  
further and/or offer her even a “meet and greet” opportunity for the posting, and thus in the  
circumstances the Hospital requested that the grievance be dismissed.  
[101] In support of its submissions the Hospital also referred to: Re Trillium Health Partners  
and CUPE, Local 5180 (Campbell), 2016 CarswellOnt 12960, 128 C.L.A.S. 102 (Ont. Arb.)  
(Parmar), Re CUPE, Local 3051 and Markham-Stouffville Hospital (Henry) 2021 CarswellOnt  
956, 147 C.L.A.S. 181 (Ont. Arb.) (Jesin), Re London Health Sciences Centre and OPSEU,  
Local 106 (Sanidad), 2013 CarswellOnt 7260, [2013] O.L.A.A. No. 200, 114 C.L.A.S. 334 (Ont.  
Arb.) (Williamson), Re Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503  
(Baker), 2006 CarswellOnt 10429, [2006] O.L.A.A. No. 757, 88 C.L.A.S. 151 (Ont. Arb.)  
(Burkett), CUPE, Local 79 v. Toronto (City) (Salatino), 2017 CarswellOnt 18431, [2017]  
O.L.A.A. No. 336, 133 C.L.A.S. 258 (Ont. Arb.) (Trachuk) and Re Nithview Community and  
Ontario Federation of Healthcare Workers (LIUNA, Local 1110) (Chicas), 2015 CarswellOnt  
17010, [2015] O.L.A.A. No. 440, 125 C.L.A.S. 51 (Ont. Arb.) (Monteith).  
V.  
Reasons for Decision  
Page 33 of 45  
[102] I agree with and substantially adopt the Hospital’s submissions.  
(a)  
The Collective Agreement Context  
[103] Article 9.05(d) of the collective agreement, which provides in relevant part that, “In  
matters of promotion and staff transfer appointment shall be made of the senior applicant able to  
meet the normal requirements of the job”, is referred to as a “sufficient ability” or “threshold”  
clause. The effect of such a clause is described in Brown, Donald J. M. & David M. Beatty,  
Canadian Labour Arbitration, 5th ed. (Toronto: Thomson Reuters, online), at para. 6:20 (entitled  
“Senior Employee with the Required Ability”):  
The precise mixture of skill, ability and qualifications that an employee must possess will  
necessarily depend upon the nature of the job and the type of seniority provision that has been  
agreed to by the parties. In agreements that adopt the “threshold” or “sufficient ability” clause, in  
which jobs are awarded to the senior employees having the requisite ability to perform them, the  
employee with the most seniority claiming the position will be entitled to it if the employee proves  
that he or she can do the job, even though the employee might not be able to perform the job as  
well as a less senior employee. With this type of clause, the evaluation that is made of the  
grievor’s qualifications is against the legitimate requirements, the core duties and the  
responsibilities of the job. the senior employee will not be required to prove, nor will the employer  
be entitled to insist, that he or she can perform the job to perfection. Rather, reasonable ability to  
perform the required tasks is the benchmark for assessing the ability and qualifications of such a  
person. However, the senior employee will be required to prove that he or she has sufficient  
present ability to perform the job without the need for a training period, unless the agreement  
specifically ;provides for such training. This may be particularly so in the circumstances of a  
layoff.  
[104] The authors of Canadian Labour Arbitration, supra, have also noted at para. 6:19 that,  
“Employees have the onus of proving that they have the requisite ability to do the job” and where  
the employee with more seniority has been bypassed from consideration, “arbitrators are agreed  
that the employee ultimately bears the burden of proving that the employer’s decision was  
flawed, either in the standards that were used or the way that they were applied”.  
[105] And unless clearly provided in the collective agreement to the contrary, the fact that the  
collective agreement provides for a trial period in the nature of article 9.05(h) of the collective  
agreement in the present case which states: “The successful applicant shall be allowed a trial  
period of up to thirty(30) days, during which the Hospital will determine if the employee can  
Page 34 of 45  
satisfactory perform the job”, does not alter the onus on the Union to show that the applicant  
“possess sufficient ability to satisfy the minimum qualifications required for the job” (per  
Canadian Labour Arbitration, supra, at para. 6:22).  
[106] Thus, in the case before me, I conclude that the onus is on the Union to prove that the  
Grievor had the requisite ability to perform the job of Patient Care Attendant, and where the  
Grievor was bypassed for consideration because, among other things, of her perceived lack of  
recent and related experience “in an acute care setting” (as well as her apparent failure to satisfy  
the minimum educational requirements as reported in the Grievor’s “unfortunate” résumé), the  
Union has the further burden of proving that the employer’s decision was flawed, either in the  
standards that were used or the way that they were applied. The proviso in article 9.05(h) of the  
collective agreement for a “trail period” of up to 30 days, does not diminish the Union’s  
requirement to show that the Grievor had an immediate ability to meet the normal requirements  
of the job as of the job posting.  
(b)  
The Right to Set and Assess Qualifications – Subject to Reasonability Standard  
[107] Within the foregoing contractual context, arbitrators have consistently held that the  
employer has the presumptive right (subject to express contractual terms to the contrary) to set  
and assess the qualifications to perform the job, provided that those qualifications satisfy a  
standard of reasonableness in the circumstances of the particular case.  
[108] For example, in the 2016 arbitration award between the instant parties in Trillium Health  
Partners, supra, which considered a Union policy and individual grievance over the Hospital’s  
refusal to award a job posting to the senior applicant for an RPN position in the Obstetrics Unit,  
under the same article 9.05 in the case before me, Arbitrator Parmar held at para. 32 that the  
“analysis begins not with the fact of [the grievor’s higher] seniority, but rather with whether the  
person meets the requirements of the job (if they are reasonable). There is no collective  
agreement requirement to structure the job to ensure senior employees have access to it.” While  
the Union acknowledged at para. 12 that, “the Hospital has the right under the collective  
Page 35 of 45  
agreement to set qualifications for positions”, it also argued that “those qualifications must be  
reasonably related to the job and submitted the onus is on the Hospital to demonstrate that.” The  
Union consequently disputed the minimum qualifications set by the Hospital in the job posting  
requiring a demonstration of significant experience by the applicant as unreasonable, but on the  
facts of that case the arbitrator disagreed, finding at para. 38 that, “the qualifications listed in the  
job posting were reasonable.” The arbitrator held that the grievor “did not meet those  
qualification and thus was properly not considered.” The arbitrator also determined at paras. 26  
and 27 that it was unnecessary to consider the issue of onus, as she found the evidence clearly  
supported the conclusion that the Hospital’s requirements were reasonably related to the  
performance of the job.  
[109] In the more recent 2021 Markham-Stouffville Hospital, supra, decision which considered  
the grievance of an employee who notwithstanding his seniority was denied the job posting for a  
“stock inventory attendant” because he lacked the “experience” required by the employer, in the  
context of contractual language that was identical to article 9.05(d) in the case before me,  
Arbitrator Jesin dismissed the grievance in the course of which he summarized the relevant  
caselaw (which were substantially the same arbitration decisions submitted by the Union and  
Hospital in the case before me) as follows at paras. 20 and 33:  
¶20 The weight of the arbitral jurisprudence supports the principle that management is entitled to  
establish the qualifications to be met by an applicant to a posted position. The qualifications set  
by management are not to be discarded by an arbitrator where they are established in good faith  
and where they are reasonably related to the requirements of the job at issue. (See for example,  
General Dynamics of Canada [2006 CarswellOnt 5770 (Ont. Arb.) (R. Brown)] at para. 20,  
Kingston General Hospital [2010 CarswellOnt 5650 (Ont. Arb.) (P. Chauvin)] at para. 59, City of  
London [2019 CarswellOnt 1714 (Ont. Arb. ) (C. Johnston)] and London Health Sciences Centre  
[2013 CarswellOnt 7260 (Ont. Arb.) (Williamson)].  
…
¶33 Upon review of all the cases the following conclusions may be made: First, as is set out in  
the Sydney (City) award [24 L.A.C. (4th) 349 (N.S. Arb.) (MacDonald)] and in the Tremayne award  
[Health Sciences North (Gaudin) 2017 CarswellOnt 17693] experience may assist in assessing  
other qualifications such as knowledge, skill and ability. In any event, the cases do support  
management’s ability to establish experience as a required qualification in a job posting. However,  
where such a qualification is established it must reasonably relate to the requirements of the  
posted position. Furthermore, where experience is required, it must be applied uniformly and  
Page 36 of 45  
without discrimination. It cannot arbitrarily be applied to the exclusion of other equivalent  
qualifications or experience.  
[110] Applying the foregoing principles to the facts of the case before me, the primary dispute  
between the parties is over one the “Key Qualifications” listed in the job postings for “Recent  
and related experience in E.C.G. and Phlebotomy in an acute care setting.” The Hospital has the  
right to establish that requirement provided it is reasonably related to the job responsibilities and  
applied in a fair and good faith manner, which includes the consideration of equivalent  
qualifications sufficient in the circumstances.  
[111] On my evaluation of the evidence, that key qualification was highly relevant to the PCT  
position at the Mississauga Hospital site, which the Hospital applied in a fair and reasonable  
manner in its consideration of the Grievor’s applications for the job postings.  
[112] I have already rejected the value of the “Internet authorities” submitted by the Union on  
the meaning of “acute care” for the reasons expressed above. What matters in my view is what  
“acute care” is in the context of the specific working environment for PCTs at the Mississauga  
Hospital site (not some hypothetical WHO ideal, or the experience at a Houston Texas medical  
practice calling itself “Urgent Care”, or the definitions offered by the anonymous authors of  
WIKIPEDIA that anyone can edit).  
[113] Ms. Bishop’s description of the PCTs’ work environment was uncontradicted (or  
unknown) by the Union’s witnesses. What is sometimes forgotten (or ignored) in promotion  
cases of the kind before me, is that as the person responsible for delivering technical services at  
the Hospital, Ms. Bishop has a public trust that is accountable to hundreds of often very ill  
patients, many suffering from life-threatening complications of heart disease and strokes, who  
rightly rely upon the Hospital to provide a high standard and quality of care. I must presume that  
both the Hospital and the Union (or their privies engaged in the “central bargaining” process with  
other CUPE organized hospitals that likely negotiated this clause)7, were aware of this reality and  
7
In the Ontario Hospital sector, the major union groups typically bargain through a “central” process whereby  
certain terms are common to all participating hospitals, while other terms are negotiated locally between each  
Page 37 of 45  
shared the mutual intention of ensuring that anyone applying for a promotional opportunity under  
article 9.05(d) of the collective agreement has the requisite ability to perform the essential  
functions of the job to the high standards reasonably expected by the public that pays everyone’s  
wages and to whom all staff members are ultimately accountable.  
[114] The evidence supports the conclusion that in asking herself what “acute care” is, Ms.  
Bishop was looking at the Hospital environment as it applied to the Patient Care Technician role,  
and particularly the PCTs’ requirement to perform more than one-hundred intrusive  
venipunctures during the first few hours in the morning of a shift; typically at the patients’  
bedside, who may have compromised vascular systems requiring a heightened degree of  
experience and skill in drawing blood which (as anyone who has had blood drawn will know)  
can be a painful experience and distressing to those who are frightened by needles. This job is not  
a “training ground” for employees but rather, from my assessment of the evidence, requires the  
PCT to hit the ground running on the morning of their first shift. Although Ms. Murchison  
testified that she didn’t know the number of blood draws that the PCTs usually performed, she  
confirmed part of Ms. Bishop’s description of the reality at the Mississauga Hospital site with the  
observation that, “sometimes the patient might have delirium or might be moving around” or  
have “bad veins” making it more difficult to draw blood or administer ECGs.  
[115] Contrast that with the very different experience the Grievor described in completing her  
150-hour practicum at Vital Urgent Care & Walk-In Clinic. She testified that Vital Urgent Care  
& Walk-In Clinic was a facility “where patients walk in with minor urgency such as a dislocated  
shoulder, big cut or open wounds”, that she likened to, “a mini-emergency department” with  
people coming in “from babies to seniors”. Her evidence also indicates that she performed an  
estimated 8 – 10 phlebotomies and ECGs per day, in a setting where the patients are served in a  
relatively quiet cubicle space; with the Grievor having time to perform a number of associated  
individual union and its employer. Since I noted that article 9.05(d) was commonly the same at other hospitals  
referred to in the authorities filed by the parties, I presumed that article 9.05(d) or its equivalent was central language  
having application to many hospitals in the province of Ontario.  
Page 38 of 45  
administrative functions that included opening computers, checking patient temperatures,  
reviewing doctors’ orders, which she nevertheless characterized as “a very fast pace”.  
[116] From my assessment of the testimonies of the witnesses, I find on the evidence before me  
that the Vital Urgent Care & Walk-In Clinic does not objectively compare with what Ms. Bishop  
reasonably took as her guidepost in defining “acute care” from her perspective of the reality at  
the Mississauga Hospital site. While the evidence also supports the conclusion that Ms. Bishop  
was primarily looking for experience in a hospital environment to satisfy the “recent and related  
experience in E.C.G. and Phlebotomy in an acute care setting” qualification listed in the PCT job  
postings, the evidence also shows that she accepted an internal and external applicant for the  
postings who had worked in a provincially licensed “LifeLabs” or “Dynacare” facility, which she  
knew from her own observations required the technicians to perform between 60 – 75  
venipunctures per four-hour shift. That was sufficient, in my opinion, to satisfy her obligation to  
consider “equivalencies” for the experience criterion in the job postings, which did not require  
her to stoop to the 8 – 10 venipunctures per day described by the Grievor in her testimony while  
working for the Vital Urgent Care & Walk-In Clinic.  
[117] Consequently, I find: (a) the Hospital’s requirement that applicants for the Patient Care  
Technician job postings demonstrate “Recent and related experience in E.C.G. and Phlebotomy  
in an acute care setting” was reasonable and within the proper managerial right of the Hospital to  
set the qualifications for the job; (b) that its definition of “acute care” for purpose of satisfying  
that qualification was appropriately focused on the reality of the Mississauga Hospital site and of  
identifying equivalent environments for purposes of satisfying the experience criterion; (c) as the  
hiring manager, Ms. Bishop properly determined from her own knowledge as a person with many  
years of experience in the field, which was largely confirmed by the testimony of the Grievor and  
Ms. Murchison, that the Grievor’s experience in the Vital Urgent Care & Walk-In Clinic did not  
satisfy the definition of recent and related experience in an “acute care” setting as understood at  
the Hospital, nor was it reasonably equivalent of that acute care experience; and (d) the Grievor’s  
evidence of her experience at the Vital Urgent Care & Walk-In Clinic, leads to the proper  
conclusion that the Grievor did not have the requisite “Recent and related experience in E.C.G.  
Page 39 of 45  
and Phlebotomy in an acute care setting” reasonably established by the Hospital as among the  
“key qualifications” for the job.  
[118] Therefore, on those findings, I conclude the Hospital was under no obligation to consider  
the Grievor’s applications for any of the five PCT job postings in dispute and consequently did  
not violate article 9.05 of the collective agreement.  
(c)  
The Right to Rely on the Employee’s Résumé – No Obligation to Inquire  
[119] While the Union’s grievance may be disposed of on the foregoing basis alone, it is  
appropriate to address the alternate theory of liability presented by the Union, which is focused  
on the Hospital’s alleged failure to properly interpret and/or to make inquiries of the Grievor to  
clarify or correct an apparent error or misconception in what she characterized as the  
“unfortunate” résumé that she submitted with each of her applications for the five job postings on  
December 29, 2020 and January 18, 2021.  
[120] There is nothing in the collective agreement prohibiting the Hospital from requiring  
employees applying for job postings to submit an up-to-date résumé with each application.  
Notwithstanding Ms. Murchison’s evidence concerning an agreement that résumés were not  
required in cases of lateral transfers of employees, her own testimony confirms the Hospital’s  
practice of requiring applicants to submit their résumés when applying for job postings  
representing a promotion or change in role as in the circumstances of the present case.  
[121] There is also no challenge by the Union to the educational requirements listed among the  
“key qualifications” for the Patient Care Technician job postings; being: “Completion of a  
recognized Post0 secondary Education Program in Laboratory Medicine” and “Commitment to  
complete education and obtain certification in OSMT or CSMLS within 3 months of hire.”  
Page 40 of 45  
[122] Rather, the alleged “confusion” or “inaccuracy” is focused on the résumé that the Grievor  
submitted with each of her online applications for the five PCT job postings; specifically, under  
the heading “Education” where she wrote the following:  
EDUCATION  
CDI COLLEGE / Mississauga, ON  
Medical Laboratory Assistant/Technician  
2019 – present  
The program provides theoretical and practical elements of lab work in a well-equipped  
classroom/laboratory setting. Students gain an understanding of key scientific principles, including  
the fundamentals of anatomy, physiology and medical terminology, clinical chemistry, laboratory  
microbiology, hematology and immunohematology.  
[123] Along with her résumé, the Grievor answered “yes” to a question on the application form  
asking whether she had satisfied the educational requirements for the job.  
[124] It is not disputed that the Grievor, in fact, completed the classroom component of her  
educational training to become a Medical Laboratory Assistant/Technician when she completed  
(and passed) a provincial examination on November 21, 2020. She commenced a 150 – hour  
practicum required to graduate, with the Vital Urgent Care & Walk-In Clinic on November 30,  
2020, that she completed on January 7, 2021. She was formally certified by the successor of the  
OSMT (the MLPAO) on January 22, 2021.  
[125] Ms. Bishop interpreted the Grievor’s résumé to indicate that she was in the process of  
completing her educational requirements, which were in progress by the date of her applications,  
which the Hospital claims it was entitled to rely upon in disqualifying the Grievor from further  
consideration for any of the PCT job postings.  
[126] The Union contends that the Hospital misinterpreted the information provided by the  
Grievor (which included her ticking a box on the computerized application form indicating she  
had completed the educational requirements for the job). At least, the Grievor’s application and  
résumé raised sufficient confusion over the Grievor’s educational accomplishments to give rise  
to what the Union submitted was the Hospital’s obligation to make inquiries of the Grievor on  
Page 41 of 45  
the matter, particularly where the job postings indicated that she had “3 months of hire” to  
complete her education and obtain certification in the OSMT.  
[127] Arbitrator Burkett had the opportunity to consider a similar situation in Ottawa (City),  
supra, where in applying for one of 50 jobs as “Facilities Supervisor” (along with 170 other  
applicants), two grievors claimed their applications should not have been screened out based on  
their résumés alone, which the Employer relied upon in determining that they didn’t meet the  
threshold to be offered an interview for one of the positions. In reviewing the effect of the  
résumés, the arbitrator wrote the following at paras. 6 – 8:  
¶6 The first issue to be decided pertains to the extent of the onus, if any, that attaches to an  
employee who applies for a posted position to put before the Employer the full scope of his/her  
education, experience and qualifications. Not surprisingly, there is ample authority for the  
proposition that there is such an onus upon an applicant employee such that the Employer may  
rely upon the résumé and application in its initial assessment as to whether or not the applicant  
employee meets the minimum qualifications for the posted position (see re: Scarborough General  
Hospital and CUPE, Local 1487 (1979), 23 L.A.C. (2d) 90 (Swan), Computing Devices Canada  
Ltd. and Employees’ Association (1994) L.A.C. (4th) 87 (Emrich) and Acadian Platers Co. and  
U.S.W.A., Local 8059 (1997), 68 L.A.C. (4th) 344. Indeed, in an award under this collective  
agreement in 2004 (see re: City of Ottawa and Local 503 (Gareau grievance) (February 10, 2004),  
I found in respect of the application of article 11.1.3 as follows:  
A review of the awards submitted by the parties establishes a number of basic  
principles that govern in cases such as this. These are, firstly, that management  
has the right to specify bona fide job requirements and the weight to be given to  
various factors, as has been codified here in article 11.1.3; second, the  
employer must abide by the procedures or format set out in the collective  
agreement, as was done here; thirdly, arbitrators ought to be reluctant to  
second guess or overrule management decisions that are reasonable and made  
in good faith; fourthly, a person seeking a job bears the responsibility of putting  
complete information before the selectors and, conversely, an employer is not  
required to search out relevant information concerning a candidate that would  
not be available to it; and finally, the union bears the onus of establishing a  
prima facie case that the grievor has the requisite qualifications before the  
evidentiary onus shifts to the employer to explain the basis of its selection (see  
Acadian Platers and USWA (Triola) (Knopf) (supra) and the cases cited therein,  
Inglis Ltd. and USW (O’Shea) (supra).  
¶7 The answer to the first question, therefore, is that the grievors bear the onus of providing the  
Employer with all relevant information pertaining to their qualifications and that the Employer is  
entitled to rely on the information submitted in making its initial assessment of the applicants’  
qualifications. This would be especially so in a competition with some 170 applicants.  
Page 42 of 45  
¶8 The question now becomes whether the résumés in question evidence basic qualifications for  
the posted Facilities Supervisor position as would have required that the applicants be screened  
in. The answer is that neither résumé evidences such qualifications….  
[128] Applying the foregoing principles, I find on the evidence before me that Ms. Bishop  
reasonably and objectively read the Grievor’s résumé as informing the Hospital that she had not  
completed the educational requirements of the position when she applied for the five job postings  
on December 29, 2020 and January 18, 2021, up to and including the closing date for each of  
those postings, seven days later. Her résumé could have easily been updated at any time prior to  
the closing of each posting period to state that she had passed the written examination for the  
classroom part of the educational requirement, while in the process of completing her practicum  
that she ultimately accomplished on January 7, 2021.  
[129] But phrased as it was to merely state, “2019 – present”, I conclude it was reasonably  
interpreted to mean that she had yet to complete any of the key qualifications related to the  
educational requirements, on which the Hospital was entitled to rely in disqualifying the Grievor  
from further consideration. The Grievor alone must bear responsibility for any confusion caused  
by answering “yes” to the question on the application form of whether she satisfied the  
educational requirements, while providing a résumé indicating that she had not.  
[130] Given the evidence that approximately 90 – 120 jobs are posted online and on the internal  
bulletin boards every Tuesday and Thursday for seven days (which is the posting period  
mandated by the collective agreement), and that for a position in the CUPE bargaining unit, the  
Hospital typically receives over 40 internal applicants for each full-time and 10 – 20 applicants  
for every part-time job posting, to require the Hospital to look behind every application and/or  
résumé to clarify or potentially correct the information provided by the applicant, would become  
such an obvious administrative burden to require clear language in the collective agreement to  
that effect, which is not the case here.  
[131] Therefore, while not the main reason the Hospital disqualified the Grievor from further  
consideration for one of the five PCT job postings, she unfortunately bears the consequences of  
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her lack of care or precision in the information she provided to the Hospital, constituting  
independent grounds for not considering the Grievor’s applications further, which I conclude did  
not contravene article 9.05 of the collective agreement in the circumstances.  
(d)  
The Hospital’s Failure to Call a Witness – No Adverse Inference Unless Material  
[132] I close my consideration of the parties’ submissions by addressing what amounts to a  
collateral point raised by the Union over the failure of the Hospital to call Ms. Christina Bifolchi  
as a witness in the proceedings.  
[133] The evidence indicates that Ms. Bifolchi acted as the HR Recruitment Specialist for all  
the PCT job postings in issue, and that she submitted the Grievor’s name among the “top 10”  
seniority applicants for the position having presumably reviewed her application and résumé,  
leading the Union to submit that she must have done so recognizing that the Grievor was the  
senior candidate “able to meet the normal requirements of the job”.  
[134] The Hospital’s failure to produce Ms. Bifolchi to testify in these proceedings must  
according to the Union lead to an adverse inference on the matter, resulting in the finding that the  
Hospital was not misled or confused at all by the Grievor’s résumé, but rather recognized that she  
was the senior qualified bargaining unit member who should have been awarded at least one of  
the PCT job postings.  
[135] In support of its submission, the Union refers to the following excerpt from Canadian  
Labour Arbitration, supra, at para. 3:5120 (“Failure to call a witness”):  
Arbitrators generally have adopted the same view as the civil courts with regard to the conclusions  
to be drawn from the failure of a person to be called as a witness who could have been called and  
who could have given evidence of matters within his knowledge. Thus, where a party can, by his  
own testimony, throw light on a matter and fails to do so, an arbitrator is entitled to infer that  
such evidence would not have supported his position. As well, failure to call a witness who is  
available to be called, where the evidence is material, can lead to the same inference being  
drawn and the uncontradicted evidence by the other party accepted. Moreover, where a witness’s  
testimony is only rebutted by hearsay evidence when it could have been directly met, the arbitrator  
may accept the less-than-satisfactory direct evidence. Indeed, one arbitrator has ruled that an  
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employee’s denial of involvement with narcotics was credible, notwithstanding her conviction for  
the offence and her failure to testify at her criminal trial. Conversely, where a person submits to a  
polygraph test, it has been held that it must weigh in favour of his credibility. But where a person  
refuses to submit to a drug test in circumstances where an employer has reasonable and probable  
cause to demand one, adverse inferences may be drawn from such a refusal.  
[Emphasis added]  
[136] I have also applied the precept of the “adverse inference” in Re Yellow Pages Group Co.  
and Unifor, Local 6006 (Debideen) (2017), 285 L.A.C. (4th) 138 (Ont. Arb.) (Luborsky) to assist  
in resolving contested facts, “where a witness who might have reasonably resolved an evidentiary  
controversy has not been produced by the party having the ability to do so, particularly where that  
witness is aligned in interest with the party at risk of an adverse finding on the contested point”  
(at para. 76).  
[137] But the failure to call every person who may be associated and/or have an opinion on a  
matter in dispute is not the test for invoking the device of the “adverse inference”. Rather, the  
foregoing authorities indicate the key to drawing an adverse reference is that the person not  
produced by the party aligned in interest is reasonably expected to have evidence that is material  
to resolving a controversy. In the present case, I cannot conclude on the evidence before me that  
Ms. Bifolchi occupies such a role.  
[138] Even if I found (by drawing an adverse inference or from hearing direct testimony from  
Ms. Bifolchi herself) that she believed the Grievor’s application and résumé satisfied the key  
qualifications to perform the job of Patient Care Technician, I am led to ask: What difference  
does that make? The evidence is clear that Ms. Bifolchi wasn’t the hiring manager or involved in  
the decision concerning the Grievor’s candidacy for any of the PCT job postings, other than  
fulfilling what amounted to an administrative function in compiling and forwarding the  
applications and résumés of the candidates in seniority order to Ms. Bishop.  
[139] It is also incorrect to suggest that Ms. Bifolchi’s actions in forwarding the Grievor’s name  
to Ms. Bishop constituted a form of acceptance that the Grievor had the minimal ability to  
perform the job, where in the two emails filed in evidence along with the list of applicants for  
Page 45 of 45  
one of the job postings, Ms. Bilfochi wrote: “It doesn’t look like any of the CUPE internal  
applicants meet the qualifications of the role. Kaltrina has ECG & phlebotomy experience but is  
in an urgent care setting. I am not sure if you would consider this acute.”  
[140] That being the evidence before me, I can infer nothing from the fact that Ms. Bifolchi  
wasn’t called as a witness by the Hospital, where her written statement on the matter (entered in  
evidence without objection as part of the Hospital’s case) speaks for itself; and from which I  
conclude Ms. Bifolchi’s opinions on the Grievor’s qualifications for promotion, whatever they  
may be, have no bearing on the decision made by Ms. Bishop, from the same application and  
résumé before her at the time.  
VI.  
Disposition  
[141] Consequently, for all the foregoing reasons, I must hereby dismiss the Union’s grievance.  
[142] But in so doing, I commend the Grievor for her initiative and obvious commitment to the  
Hospital by improving her education and experience on her own time for the purpose of seeking  
greater involvement and opportunities to enhance her role as a valued employee. While she was  
unsuccessful for the job postings at issue in this case, the Grievor’s testimony demonstrated  
much potential and determination that can only be an asset to the Hospital in the future, with  
appropriate direction and personal resolve.  
DATED AT STOUFFVILLE, ONTARIO THIS 27TH DAY OF JULY 2022  
“G. F. Luborsky”  
Gordon F. Luborsky,  
Sole Arbitrator  


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