Health Services Integration must Protect Bargaining Rights, OLRB rules

By Patrick Groom

The Ontario Nurses’ Association (ONA) has won on yet another front in the evolution and interpretation of the Public Sector Labour Relations Transition Act, 1997 (PSLRTA).

In Ottawa Fertility Centre Inc. (January 10, 2008) the Ontario Labour Relations Board (OLRB) has ruled that the PSLRTA should be interpreted broadly to protect nurses’ and other health care workers’ bargaining rights during a restructuring in the health care sector. In reaching this decision, the OLRB held that:

Health services integration’ is defined so broadly that it will capture a wide range of changes in the provision of health services. Since, at this point, it is difficult to predict the depth and breadth of change that will be brought to the delivery of health care services, it is not surprising that the Legislature chose language that could embrace a wealth of change. [emphasis added]

Previously, the OLRB had ruled that there is “no doubt” that PSLRTA is intended to apply to restructuring in the health sector. In Central Care Corporation (July 31, 2007) the OLRB broadly interpreted the application of PSLRTA to restructuring in the health services sector in general, and to restructuring under the Local Health Services Integration Act (LHSIA) in particular.

But the question remained; what happens when a service delivered in a hospital is privatized and moved to a location outside of the hospital?

This is exactly what happened in Ottawa Fertility Centre Inc. The Ottawa Hospital Fertility Clinic was a division of the Ottawa Hospital. At the end of 2005, the doctors at the Hospital Clinic decided to leave because of a need for more space than the Ottawa Hospital was able to provide in a timely way. The doctors opened The Ottawa Fertility Centre Inc. in a new location. They offered the same mix of insured and uninsured reproductive medical services. The doctors used the exact same equipment they had been using at the Hospital Clinic. Most of the employees of the Ottawa Hospital’s Fertility Clinic were hired at the new clinic, albeit as “new employees.” Even the files, embryos, and sperm of the patients of the Hospital Clinic were transferred to the Fertility Centre with the Hospital’s assurance that it would “assist in a smooth transition.” Outwardly, the Fertility Centre appeared to be exactly the same as the Hospital Clinic.

However, the Fertility Centre argued that it was an "independent health facility" and nothing was, in fact, “transferred.” They argued that the equipment, which was of no use to the Hospital once the doctors had left the Hospital Clinic, was sold to the Fertility Centre at fair market value; that none of the employees were transferred; and the patients' records, embryos and sperm, which were the property of the patients, followed them with their consent. The Ottawa Hospital emphasized that it did not "own" the work of the Hospital Clinic. It had no ability to force the doctors to stay, and when they withdrew their services, the Hospital Clinic had little choice but to close.

Together, the Hospital and Fertility Centre argued that the PSLRTA was not designed to apply to the creation of new, private enterprises. Rather, they argued that the PSLRTA was designed to focus solely on hospitals and secondary health service support, such as laundry and food service functions.

ONA argued that the Ottawa Hospital got out of the business of providing assisted reproductive treatments. The key elements that had provided that service at the Hospital Clinic were transferred to Fertility Centre, the very sort of rationalization of health care services the PSLRTA was designed to address. The appearance of the transaction on paper did not matter; what mattered was the appearance and actual delivery of the health services in question.

The OLRB agreed with the ONA. Section 2 of the PSLRTA states that it applies to “employer[s] whose primary function is ... the provision of services within or to the health services sector.” The OLRB held that if the Ontario Legislature wanted the PSLRTA to apply to health service integrations only within hospitals then it could have been more specific and could have chosen much narrower language. Instead, the OLRB found that “the Legislature intended for the PSLRTA to have a broad application and it chose to focus on the consequences of changes in how service is delivered, rather than on the cause or on authors of the change.”

Thus, health care employers cannot avoid their obligations to their workers through complex paper transactions between two or more willing parties working together. With this decision, unionized health care workers and their rights are now better protected from the ongoing changes and restructuring in Ontario’s health care system.