Ministry of Health and Long-Term Care, Land Ambulance Programs v. Canadian Union of Public Employees, Local 2974.1

 

The Ontario Labour Relations Board has held that the Ministry of Health and Long-Term Care (the “Ministry”) breached the Occupational Health and Safety Act (“OHSA”) in relation to the operation of the communications system that paramedics employed by the County of Essex-Windsor (“Essex”) are required to use.

Background

Prior to 1998, the Ministry directly operated ambulance services in Ontario. In 1998, the responsibility for provision of ambulance services was downloaded to upper tier municipalities, such as Essex. However, the Ministry retained control of the communications and dispatch functions used by emergency medical services in Ontario. As the Board found:

Communications officers employed by the [Ministry] receive calls and dispatch Essex’s paramedics to attend to those calls. The paramedics are under the direction and control of the communications officers from the beginning to the end of their shifts …
The [Ministry] determines what information will be given to the paramedics in relation to those calls …
The [Ministry] determines what communications equipment is provided to the paramedics in relation to the performance of their duties …
The [Ministry] also determines the manner in which the communications equipment it provides may be used.

Both the Canadian Union of Public Employees, Local 2974.1 (“CUPE”) and Essex filed applications under the OHSA, alleging that the Ministry was in breach of section 25 of the Act, which requires an employer to: ensure that the equipment, materials and protective devices provided by the employer are maintained in good condition; to provide information, instruction and supervision to a worker to protect the worker’s health or safety; and to take every precaution reasonable in the circumstances for the protection of a worker.

In particular, CUPE and Essex alleged that the Ministry had breached section 25 in a number of respects, including by:

• failing to provide for the testing of the emergency buttons on the portable radios carried by paramedics;

• refusing to provide a portable radio to each paramedic on duty (paramedics work in pairs, but only one portable radio is provided per ambulance); and

• refusing to flag (identify) addresses at which potentially dangerous individuals may reside.

CUPE and Essex maintained that the Ministry was an employer of paramedics for the purposes of the obligations under section 25 of the OHSA or, in the alternative, was a supervisor within the meaning of the OHSA and was therefore subject to similar obligations.

The Ministry maintained that it did not have the responsibilities of an employer under the OHSA vis-à-vis the paramedics. It also maintained that it was not a supervisor, since only a natural person can be a supervisor under the OHSA. Finally, the Ministry argued that, even if it had the responsibilities of an employer or a supervisor under the OHSA, it had not breached the Act.

The Board’s Decision

The hearing before the Ontario Labour Relations Board consumed 14 days over the course of several years. On February 26, 2010, the Board released its decision, finding in favour of CUPE and Essex.

Ministry owes the obligations of an employer

The Board first concluded that the Ministry owed the obligations of an employer under the OHSA to the paramedics, even though it was not their employer. In this regard, the Board concluded that an employer not only has obligations to its own employees, but may also owe the same obligations to other workers. Such obligations can arise where the employer has control over those other workers, or where the employer is engaged in contiguous spheres of operation which pose a risk of harm to those workers.

In this case, while Essex was the employer of the paramedics, the Ministry’s “absolute control over the provision of communications equipment and the necessary integration of the dispatch functions” were sufficient to impose upon it the obligations of an employer in relations to the paramedics.

In any event, the Ministry was a supervisor of the paramedics

The Board also held that, even if it was wrong to conclude that the Ministry owed the obligations of an employer under the OHSA to the paramedics, the Ministry constituted a supervisor of the paramedics within the meaning of the OHSA. The Board rejected the Ministry’s argument that only a natural person could be a supervisor, and concluded that the nature of the Ministry’s control over the communications systems gave it the requisite authority or charge of the workplace such that it was required to fulfill the obligations of a supervisor under the OHSA in relation to the paramedics:

…[The Ministry] has determined which system they must use, which specific tools will be provided, whether enough tools (i.e. portable radios) will be provided so that each paramedic has one while working, whether parts of the system will be maintained or tested and how the system will be used, in the sense of what information may be transmitted over it. This control is “hands on”. It is direct. It is day-to-day. Further, it is not simply that the [Ministry] has the effective power of discipline over paramedics in relation to this communications system and its uses, but the paramedics literally cannot work unless they use that communications system. Perhaps most importantly, this control over the paramedics is exclusive: there is nothing that their employer, Essex, or any of its employees, can do about it … [T]he fact that the [Ministry] is not the employer of the paramedics, or employed by an employer of the paramedics, does not detract from the very real work related authority which it exercises over them.
Having concluded that the Ministry had obligations under OHSA to the paramedics, the Board turned to the specific complaints made by CUPE and Essex.

Ministry’s failure to provide for testing of emergency buttons

On the question of the testing of the emergency button on the portable radios carried by paramedics, the Board concluded that the Ministry had violated its obligation under section 25 of the OHSA to ensure that equipment it provides is maintained in good condition and to take every precaution reasonable in the circumstances:

The ability of the paramedics to test the emergency buttons is controlled by the [Ministry] as part of its operational functions … Failure to test the emergency buttons gives rise to an actual or potential danger that the emergency buttons will not work. In my view, an employer which prohibits the testing of a component of equipment which it has provided is not ensuring that the component is maintained in good condition.

The Board directed the Ministry and Essex to attempt to agree on a protocol for the testing of the emergency buttons within 30 days. The Board remained seized to deal with the issue.

Ministry’s refusal to provide portable radios for all paramedics on duty

The Board also held that the Ministry breached its obligations under section 25 by refusing to provide a second portable radio so that each paramedic on duty would have a radio and access to an emergency button. The evidence indicated that paramedics may be dispatched to calls where a patient or another individual may become violent, and that, in the course of their duties, paramedics often become separated so that the paramedic not carrying the radio does not have access to an emergency button. The evidence also demonstrated that the Ministry would not permit Essex to purchase additional portable radios and pay for them itself.

The Board concluded that outfitting each paramedic with a portable radio would reduce the risks to their health and safety. A second portable radio would address the problem of summoning help when one paramedic is in an altercation and is unable to depress his/her own emergency button, could be used to provide information about emergency situations and would function as a “spare” in the event that the first portable radio did not work. Moreover, it was a precaution that was reasonable to take in the circumstances, since even the Ministry itself had requested funding for second portable radios to Management Board. Since the Ministry did not adduce evidence to explain why the request for funding was made, the Board drew an inference that the Ministry itself recognized the reasonableness of the precaution of providing a second portable radio.

The Board directed the Ministry to provide within 60 days sufficient portable radios so that each paramedic employee by Essex could carry one while on duty.

Ministry’s refusal to allow flagging of addresses

The Board also agreed that the Ministry breached its obligations under OHSA by refusing to allow for the flagging of addresses at which potentially dangerous individuals reside or might reside. It concluded that flagging of addresses was a reasonable precaution in the circumstances for the protection of the health and safety of paramedics, and that this was an obligation that the Ministry shared with Essex under the Act. It also noted that, to the extent the Ministry was aware of the existence of potential danger to paramedics at an address, it was obliged under the OHSA to advise the paramedics of this information. However, since it could not determine, based on the evidence before it, when addresses should be flagged, the Board directed the Ministry and Essex to attempt to reach agreement on a protocol for flagging. The Board remained seized to deal with the matter.

Same result, even if the Ministry is a supervisor of the paramedics

Finally, the Board held that, even if it was wrong in concluding that the Ministry owed the obligations of an employer under the OHSA to paramedics, the same orders would be justified against the Ministry as a supervisor of the paramedics.

You can read the Board's decision by clicking here.

CUPE Local 2974.1 was represented by Lorne Richmond.