IN THE MATTER OF AN ARBITRATION UNDER SECTION 48 OF THE LABOUR

RELATIONS ACT 1995 (AS AMENDED)

BETWEEN

Ontario Public Service Employees Union (“OPSEU” or “the Union”)

AND

The Ottawa Hospital (the “Hospital” or the “Employer”)

And in the matter of a dispute about whether certain individuals employed as “Physician

Assistants” [“PAs”] are “paramedical employees” who are covered by the “Paramedical”

Collective Agreement [OPSEU Policy Grievance #2008 0464 0010 - dated March 20, 2008]

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BEFORE R.O. MacDowell (Sole Arbitrator)

APPEARANCES

For the Union Chris Bryden (Counsel)

Michael Donaldson

Linda O’Regan

Tami McDonald

For the Employer J.D. Sharp (Counsel)

Maureen Daly

Dennis Garvin

Mike Hackett

Justine Boyd

Jennifer Cornick

The grievance underlying this proceeding was launched in 2008 under the 2008 Collective

Agreement; and the hearing in the matter was eventually, held in Ottawa, Ontario, on the

following dates that were fixed in consultation with the parties and their counsel: January 13,

2011, October 25, 2011, April 3 & 4 2012, November 13 & 30 2012, January 28, 2013, October

10, 2013, February 26 & February 27, 2014, March 4 & 6, 2014, November 17 & 18 2014; and

April 24, 2015, November 16 & 27 2015.

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AWARD

I - Introduction: what this case is about

1. The Union is the “bargaining agent” for a “bargaining unit” of “paramedical

employees” who work at the Ottawa Hospital. The parties are bound by a Collective Agreement,

that defines that “paramedical bargaining unit” as follows (emphasis added):

Article 1.02 Scope and Recognition -- The parties have agreed upon the

following definition of the bargaining unit: All paramedical employees

of The Ottawa Hospital/L’Hopital d’Ottawa, save and except supervisors,

persons above the rank of supervisor, Laboratory Scientists, Biochemists,

Staff of The Ottawa Hospital Research Institute, Occupational Health and

Safety Services Personnel, Radiation Safety Personnel, students and

students employed during the school vacation period.

2. This “paramedical” bargaining unit covers about 2000 professional and technical

employees who work in the roughly 140 job classifications to which (as of 2008) the

“Paramedical Collective Agreement” applied. Those classifications were distributed (in 2008)

across some 26 different “pay bands” with wage rates varying from about $20 per hour to about

$60 per hour. There is great diversity in both pay and work responsibilities, as the following

selection of job titles indicates: pharmacist, librarian, vocational counselor, diagnostic imaging

technologist, electronics technologist, senior physiotherapist, chiropodist, psychologist,

respiratory therapist, dialysis technician, social worker, life skills counsellor, occupational

therapist, DI systems administrator, mould room aide, animal care technician, perfusionist

(operates a heart-lung machine), sonographer, prosthetist, dental assistant, pathologist assistant.

3. The issue in this case is whether some new employees called “Physician

Assistants” (“PAs”) are “paramedical employees” who are within the scope of this “paramedical

bargaining unit”. The Union says that they are, and the Hospital says that they are not.

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4. It is common ground that if the “Physician Assistants” are “paramedical

employees” then they are caught by Article 1.02 and their terms and conditions of employment

are regulated (inter alia) by the “Paramedical” Collective Agreement.

5. For example, that Collective Agreement requires that the bargaining parties

negotiate a salary rate for any new “paramedical” job that is added to the bargaining unit (see

Article 26.01); the Agreement influences the paramedical employees’ basic hours of work and

benefits (vacation entitlement, sick leave plan, etc.); the Agreement protects the employees’ “job

security” in various ways, including giving weight to their “seniority”, regulating “layoffs” and

requiring the Hospital to prove “just cause” before discharging someone; there is an independent

“grievance-arbitration” process to deal with employee complaints; and so on.

6. Conversely, if the “Physician Assistants” (“PAs”) are not “paramedical employees”

then they are “non-union employees” who have to make their own individual arrangements with

the Hospital that are embodied in their own individual contracts of employment.

7. It is the difference between being part of an established collective bargaining

framework1 on the one hand and a regime of individual employment contracts on the other.

8. With that in mind then, the “interpretation question” in this case can be stated quite

simply: are the “Physician Assistants”, “paramedical employees” who fall within the scope of

Article 1.02? Or put differently: how “elastic” is the word “paramedical” and, as a matter of

interpretation, does it embrace the disputed employees here?

1 In a hospital context that means that the employees’ terms of employment are negotiated between the Union and

the Employer; and in the case of disagreement, are determined by a neutral arbitrator. Individual contracts of

employment, by contrast, are negotiated by each employee separately, but in the shadow of whatever “policies” the

hospital, as a large employer, has developed for its non-union workers. For example in the present case, the PAs

appear to be treated for benefits purposes like non-union professionals and certain managers.

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II – Some mechanics

9. The parties are agreed that I have been properly appointed under the terms of the

Collective Agreement and that I have jurisdiction to hear and determine the matters in dispute

between them. The parties are also agreed that if I find that the Employer has breached its legal

obligations in some way, I have jurisdiction to fashion an appropriate remedy.

10. However, the parties were further agreed that if I conclude that the disputed

individuals are “paramedical employees” covered by the “paramedical” Collective Agreement,

then, for the time being, I should simply make a declaration to that effect and remain “seized” to

deal with any remedial issues that properly flow from the Union’s “policy grievance”. The

parties were confident that they could work out such remedial issues between themselves; and of

course, if the Union’s position were rejected, then any remedial questions would become moot.

11. The hearing in this matter took place in Ottawa Ontario, on a number of days that

were scheduled on the agreement of the parties (between 2011 and the end of 2015); and as it

turned out, that hearing consumed all or part of some 17 hearing days. Notice of the proceeding

was given to the several PAs who might be affected by this decision; however, none of those

individuals chose to participate as a “party” in this proceeding. Nor did they take any personal

position on their inclusion, or not, in the “bargaining unit” of “paramedical” employees.

12. On the other hand, one of the PAs - Mike Hackett - was called by the Employer as

its main “representative witness” for the PA group as a whole; he was present throughout the

hearing; he gave evidence about his background and his work responsibilities; and he assisted the

Employer I presenting its case. There is no dispute that the result of this proceeding will apply to

all of the PAs, even though I only heard from two of them.

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III – The nature of the evidence adduced and some general observations on that evidence

13. Most of the background is not in dispute; and over the course of the hearing, I heard

quite a bit of evidence about the role of the PAs, their emerging “professional” status and how

these newcomers fit into the Hospital’s overall operation. These new employees are not

themselves “medical doctors”, but they do have training in the health sciences, and they do

“assist” the doctors in many ways, and they do “stand in” for those doctors when they are

authorized to do so. They work under the auspices of their doctor’s medical scope of practice and

they do the things that they are delegated to do by that doctor.

14. In this respect it was said by the Employer (correctly I find) that the PAs are the

“agent” or the “extension” of the individual doctors to whom they are attached. For in fact, the

newcomers do precisely what their job title suggests they do: they assist “their” doctor(s) in

treating patients in whatever manner the doctor considers appropriate and is permitted by the

Hospital’s Medical Directives and Policies - including doing delegated medical or ancillary

functions that might otherwise be done by the doctor himself/herself.

15. In the result, the “Physicians’ Assistants” work within the parameters that are set by

the physician(s) to whom they are attached; so that they are supervised by, and are immediately

answerable to, those physicians. They are also obliged to follow any Hospital Policies or

Medical Directives that impinge upon what the PAs are permitted to do or what “their doctor” is

permitted to delegate. That is what shapes the daily duties of a PA.

16. However, the Physicians’ Assistants do not work in isolation, nor are patients cared

for only by doctors and PAs. The PAs work immediately and most closely with “their own

doctors” but like the doctors themselves (and from a treatment perspective), they also work in

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conjunction with a broad spectrum of other “professional” and “technical” staff who provide

patient care or who assist in the diagnosis or treatment process in various ways – including

nurses and many different kinds of “paramedical employees” . In this sense the PAs are part of a

“health care team” that is led by doctors but that also involves nurses and “paramedical

employees” who assist in diagnostics or attend to the patients’ needs in one way or another.

17. There is no dispute that many of these other members of the hospital staff are

covered by the “paramedical” Collective Agreement, despite their different professional

specialities (like the psychologist, social worker or pharmacist on the one hand, or the dialysis

technician, respiratory technologist, physiotherapist or dental assistant on the other). Some of

these paramedical employees provide direct hands-on care for patients, while others work in a

more auxiliary role. And they are all quite different from one another in terms of their

professional background, specialization, status, pay and work responsibilities.

18. Accordingly, for comparison purposes, the Union called a few of those

(indisputably) “paramedical employees” as witnesses in order to illustrate the nature and

diversity of the “paramedical” bargaining unit – which is to say, the broad practical ambit of the

word “paramedical” and thus how those members of the “paramedical” bargaining unit were

similar to, or different from, the newcomers and each other.

19. I heard from: Dr. Gretchen Konrad a Staff Psychologist; Tina Alvarez-Wiest an

Advanced Practice Physiotherapist and Clincial Practice Coordinator in Physiotherapy; Ruth

Thompson, a Chiropodist; Linda O’Regan, a Respiratory Therapist and Union Official; and Paul

Aboueid, a Respiratory Technologist who has specialized training in anaesthesia so that he works

directly with doctors as an “Anaesthesiology Assistant”.

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20. In each case, the “paramedical” comparator discussed his/her qualifications, the

nature of his/her job, the hospital subdivision in which s/he worked, how s/he went about his/her

daily tasks, and how s/he interacted with doctors and patients and other health care professionals.

21. These “paramedical” witnesses also discussed the external regulatory framework

that applies to some “paramedical” employees pursuant to the Regulated Health Professions Act

(“RHPA”) or related legislation like the Chiropody Act or the Respiratory Therapy Act – that is:

their statutorily-prescribed professional responsibilities, and their legally defined “scope of

practice”, and the role of the Provincial “Regulatory Colleges” that pertain to their particular

specialty (e.g. College of Chiropodists, College of Pharmacists, etc.). Because some of the

employees in the paramedical bargaining unit are in statutorily regulated “health professions”,

so that there are licensing and competence requirements that they have to maintain, quite apart

from anything that the Hospital, as their “employer”, requires of them.

22. However, the PAs are not an independent “health profession” that is recognized

like that under the Regulated Health Professions Act. That possibility was considered and

rejected in 2012 - primarily because the Health Professions Regulatory Advisory Council (which

makes these decisions) did not think that the PAs involved sufficient “risk” to the patients or the

public to warrant regulation – noting the high degree of supervision by doctors. Nor is there any

profession-specific legislation that applies to PAs, like there is for the Chiropodists or the

Registered Respiratory Therapists(“RTs”) and some other “paramedical” groups.

23. On the other hand, there are lots of “paramedical employees” who are outside this

regulatory structure too; so the presence or absence of such legal framework is not the sine qua

non of “paramedical” status for collective bargaining purposes. Nor, in any case, does this

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licencing and regulatory regime purport to deal with the employees’ pay, or their terms and

conditions of employment, or the description or composition of “bargaining units”, or the content

of collective agreements, or any other labour relations or collective bargaining phenomena.

24. These external regulations are about a practitioner’s professional duties and

responsibilities in light of the potential risks to the public; they are not about wages or benefits or

other economic or employment law issues. Similarly, the Professional Colleges are concerned

about practice questions and the public interest, and they do not get involved in collective

bargaining matters. And as we will see later on: the PAs do have an evolving professional and

educational “framework” even though they are not recognized under the RHPA.

25. The parties also put before me a banker’s box of documentary material (hundreds of

pages) pertaining to the expected role of the PAs (because that is something of a “work in

progress”) and the existing role of the other “paramedical personnel” with whom they were

being compared for “bargaining unit definition purposes” – including, in the latter case, a lot of

material that described the paramedical employees’ legally permitted “scope of practice”, their

“practice guidelines”, and the education, professional training and professional responsibilities

that apply to each paramedical specialty – such as the description of what they can or cannot

legally do (again, quite apart from any strictures imposed by the Hospital as their “employer”).

26. This material was not controversial and was admitted without objection. It was

voluminous but not contentious. Likewise their job descriptions, which it is agreed are accurate.

27. I also heard from two PAs (Mike Hackett and Gabrielle Papineau), and from Dr.

Kravcik, a physician who works with PAs, and from Jen Cornick, a human resources analyst

who did a comparison of the PA’s work responsibilities from a pay equity point of view.

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28. However, I think that I should note, at the outset, that quite a bit of the testimony

from the witnesses (including the two PAs who gave evidence) was about their education or

qualifications, the kinds of work that they do in the different departments of the Hospital where

they are located, and their interactions with patients and with other hospital staff – including with

doctors. It was about the health services that the witnesses provided for the patient, who else

was involved in that treatment, and who had a decisive “say” or “input” into that particular

aspect of patient care – that is, who “called the shots” with respect to some aspect of patient care

or patient management (especially the role of the doctors as the notional leaders of the “team”).

It was about the range of treatments or interventions that these individuals were permitted to do

on their own, or in consultation with others, or with permission, or with different levels of

experience and accreditation. And it was about the regulatory structure for their specialty (if

there was one) including any ethical or disciplinary features of that external regime.

29. It was not, for the most part, about how these employees were paid in relation to

one another, or their varying hours of work, or their vacation or sick leave or overtime

entitlements, or their permitted leaves of absence, or the application of their “seniority rights” (if

any), or their promotional processes, or the protections for their job security. For example: how

layoffs or terminations must be implemented, or their severance pay arrangements, or how their

pension or other benefits might be administered, or the framework, including collective

agreement grievance procedures, for addressing discipline or performance issues or challenging

employer decisions that might be considered “unreasonable” or improper in some way.

30. In other words, it was not about the kinds of employment issues (as opposed to

health care delivery issues) that are the focus of collective bargaining and that can lead to

provisions in a collective agreement addressing such matters; while, by contrast (to take an

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example), what a Chiropodist does, or how s/he does it, or how s/he interacts professionally with

doctors or other health care professionals, or whose “OK” s/he needs before doing something to

a patient’s feet, are not the kinds of things that are likely to surface at the bargaining table or

produce some collective agreement provision regulating such work responsibilities.

31. Collective bargaining is mostly “about” employee rights and attaching pay and

benefits to an employee’s job duties – something that for non-union employees is done more or

less unilaterally by the Employer. It is not normally “about” how specific kinds of work should

be done, or who must be consulted first, or (in a hospital setting) how patient needs should be

addressed: individually or on the caregiver’s own initiative, or in consultation with other

members of the health care team, or pursuant to some prescribed or pre-authorized treatment

regimen - especially when that work requires technical proficiency or credentials (although in the

end a salary has to be attached to each job and some duties are valued more highly than others).

32. Indeed, in the instant case, the job descriptions that spell out the work

responsibilities and expectations for each “paramedical classification” are not even negotiated

by the parties, nor (as I understand it) do they form part of the collective agreement.2 They are

generated unilaterally by the Hospital; and to the extent that such duties are affected by statutory

prescriptions - like someone’s permitted “scope of practice” – they cannot be contradicted by

collective bargaining in any event.

33. It is also perfectly plain (all of the witnesses agreed with this) that there is a high

degree of collegiality and inter-professional cooperation when doctors and hospital employees

2 These are multi-page documents that set out, in some detail, the job definition, the duties and responsibilities, the

required education and knowledge, the degree of initiative and independence of action, the impact of errors, internal

and external contacts (e.g. with other health care providers, patients or family members), supervision, physical and

mental demands and working conditions).

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are delivering health care to patients – regardless of the professional specialties being deployed,

or the composition of the “treatment team”, or the “treatment plan” at that point, or whether

someone is unionized, or not, or in one bargaining unit, or another, or working in one of the

numerous specialized “silos” that are occupied by paramedical employees.

34. Collective bargaining neither addresses those issues directly nor was there any

evidence that “bargaining unit status” gets in the way of employees doing what they need to do

for patients (although the Paramedical Collective Agreement does provide that work load issues

that impinge upon patient care will be discussed and if there are performance issues, then they

may have to be addressed in ways that for unionized employees might engage provisions of the

collective agreement which provide procedural and substantive safeguards).

35. However, when the witnesses were asked questions about the “pecking order” and

levels of treatment authority in the workplace (such as whether the PA, as the doctor’s alter ego,

could direct other employees, like nurses, to do things) those witnesses emphasized that the

treatment process was collegial and collaborative. They said that in practical terms, things simply

did not unfold that way – and that the doctors were the ones who were ultimately responsible for

the treatments that the patients receive or for resolving controversies about patient care.

36. Meeting patient needs was not about giving orders in some paramilitary fashion;

but rather about working out, in a collaborative way, what was best for the patient in the

circumstances - with the doctor in the lead role, but having regard as well, to the specialized

expertise and input of the other caregivers involved. And that is so for the PAs, and for the

nurses, and for the paramedical employees who also become involved in patient care from time

to time. They work together.

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37. Furthermore, questions about conflicting decision making authority, friction or

professional disagreements were all quite hypothetical. So, for example, Dr. Kravcik opined that

a doctor or PA or a nurse could call in a Respiratory Technologist, but that what the RT does

when he gets there or how he does it, remains for the RT to determine; yet Dr. Kravcik also said

that a PA’s opinion would “carry the day” if it were a “judgement call” and there was no obvious

right or wrong answer or any ethical issues in play. He gave no examples; and there is no direct

connection with an employee’s placement for bargaining unit purposes.

38. There is no actual evidence about a PA ordering a paramedical employee to do

something that the paramedical employee was disinclined to do, or some actual “conflict” that

had to be sorted out – although there was general agreement that it was the doctor who was

ultimately responsible for treatment choices and for the patient’s well-being, and the PA could

convey what the doctor wanted done. So if there were frictions that actually did put someone’s

job in jeopardy or engaged managerial or human resources personnel, then I did not hear about

them in any concrete way. Not for nurses, and not for paramedical employees either; and in fact,

Mr. Hackett confirmed the cooperative and collegial approach that I have described above.

39. Similarly, while it is clear that doctors have a decisive “say” over what paramedical

employees do for their (the doctors’) patients and it is the doctor who “invites them into” the

treatment process and can decide to disregard their advice or reject their involvement, there is

typically a team approach and the players have considerable autonomy within their sphere of

expertise. The paramedical employees have to be trusted by the doctor and may face

consequences if they do not perform adequately – or if inter-personal friction impairs the

functioning of the team. Professionals are expected to get along with one another even if there

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are professional disagreements - regardless of whether their terms of employment are established

by collective bargaining or by individual dealings with their employer.

40. Moreover, interesting as it was to hear about who can do suturing, or put in or

remove surgical staples, or do the “closing up” in a routine surgery, or initiate intubation, or cut

into some tissues, or treat abscesses, or order up one kind of drug or test or other, or bring in or

operate some kind of high-tech machine, or deliver bad news to a patient or his family, it is

obvious that these things don’t have much to do with collective bargaining – although mastery of

such skills or responsibilities may influence the salary that is paid to an employee, and carrying

out those duties may, for unionized employees, engage some collective agreement provision (like

paying overtime if someone has to work longer hours). Nor, for reasons that I will discuss later

on, do I think that analyzing “work” functions in this very detailed way ultimately helps very

much with the interpretation problem that is presented in this case.

41. Be that as it may, the issue before me certainly does have a “collective bargaining”

context (it is about a “bargaining unit” after all); and with that in mind, the parties also provided

me with some “labour relations history” about where the “paramedical” bargaining unit at

Ottawa Hospital originally “comes from” and how it has evolved over the years.

42. This branch of the evidence helps to “situate” the “paramedical” bargaining unit in

the mosaic of other collective bargaining relationships that the Hospital has with other unions or

associations, representing other kinds of employees, in other kinds of “bargaining units”.

43. For as we will see later on: the “paramedical bargaining unit” is one of the several

“generic groupings” of employees who typically bargain together in public hospitals in Ontario;

and in this respect the Ottawa Hospital is not unique. It mimics the Ontario pattern. That is why

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the Union put in some material about where the “paramedical” terminology originated and what

that term “paramedical” typically means in labour relations practice and parlance.

44. This evidence was a reminder that the “bargaining unit” is related to “collective

bargaining” and that the word “paramedical” is being used in a collective bargaining context,

for a collective bargaining purpose, in a Province where there are lots of other hospitals that also

have “paramedical” bargaining units. It is a collective bargaining term that is widely used in the

community; and it has to be read in that light. It is not about “health care delivery”, as such.

45. The parties also adduced some evidence about why certain employees are

specifically excluded from the particular “paramedical” group found at the Ottawa Hospital (see

the list of employee types following the “save and except” inflection point in Article 1.02).

46. However, it seems to be common ground that the word “paramedical”, itself, was

drawn from the language used by the Ontario Labour Relations Board (“OLRB”) which has

historically created and described such “bargaining units” in the hospital sector, as part of its

statutory mandate to regulate the “structure” of collective bargaining in Ontario.

47. The OLRB does this under the Ontario Labour Relations Act (“OLRA”) when a

union is seeking to represent a group of unrepresented workers or when there are corporate

changes that impact upon existing collective bargaining structures. The OLRB also operates

under the Public Service Labour Relations Transition Act (“PSLRTA”) whose purpose (inter

alia) is to “rationalize” bargaining units when public institutions have been merged or

amalgamated or otherwise reorganized in some way. In both cases the OLRB can define or

redefine bargaining unit perimeters or settle issues of bargaining unit composition.

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48. In the result, the adjective “paramedical” is the “label” that the OLRB has attached

to one of the several “generic” bargaining units that the OLRB has established for collective

bargaining purposes in public hospitals; so it is not a term that is solely of the parties’ own

devising. Rather, it is a policy-laden word that originates with the OLRB and that reflects, to

some extent, the OLRB’s views about what hospital bargaining unit structure “should look like”.

And from that perspective, it may also be a clue to bargaining unit composition.

49. To be clear: I am not the OLRB and the issue before me, as an arbitrator, is not

whether some disputed individuals “should be” in the paramedical bargaining unit, but rather

whether they actually “are” in it as a matter of interpretation. However I agree with the Union

that when answering that interpretation question, it may be helpful to understand the origins and

the normal ambit of the labour relations terminology that is the focus of controversy in this case.

50. Because if the OLRB has routinely said that certain kinds of employees are, or are

not, “paramedical” or “in” the “paramedical” unit when the Board is constructing or revising

such units; and if employers and unions embrace that bargaining unit terminology (or it gets

thrust upon them by operation of law); then what the OLRB has had to say may provide some

guidance about who should be regarded as a “paramedical” employee.

51. It will be convenient to review the factual background in more detail and then

return to the narrow interpretation question that is posed in this case.

52. Does the word “paramedical” in Article 1.02 encompass the new PAs, so that they

are “in” the “paramedical” bargaining unit, along with many other health care professionals? Are

the PAs “paramedical” employees for the purposes of Article 1.02?

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53. Or (as the Employer argues) are the PAs something else altogether – something

entirely different – a completely different kind of “animal”, so to speak – a “medical” employee

and not a “paramedical” employee – with the result that the PAs are outside the scope of the

“paramedical” bargaining unit defined in Article 1.02?

54. Or to put the proposition advanced by the Hospital a little differently: does

characterizing the PAs work as “medical” versus paramedical “matter” for the bargaining unit

definition; does this alleged distinction withstand scrutiny; and does it dictate the placement of

the PAs, outside the existing “paramedical” bargaining unit defined in Article 1.02?

IV - Some Institutional History

55. In 1999-2000 several Ottawa hospitals were merged in order to create a new

corporate entity named "the Ottawa Hospital". Those predecessor hospitals were: the Riverside

Hospital; the Ottawa General Hospital; the Ottawa Civic Hospital; and the Salvation Army Grace

Hospital. Each of those hospitals had its own collective bargaining history with different trade

unions and its own collective agreements; so that the bargaining structure and union

representation rights in the newly created organization had to be sorted out, post-amalgamation,

by an application to the OLRB under the Public Sector Labor Relations Transitions Act.

56. As a result of that proceeding, the parties agreed to and the OLRB endorsed several

large generic bargaining units - including a "paramedical unit" - which is not only a "standard

unit" that is commonly found in public hospitals, but was also the kind of bargaining unit that

was found in some of the predecessor hospitals that were amalgamated to form the new Ottawa

Hospital. The OLRB also made some rulings clarifying whether certain disputed occupations

were “in” that paramedical unit or were in one of the other generic units in the newly-formed

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organization – making it clear, though, that the scope of the “paramedical” bargaining unit was

not limited to the jobs that received specific OLRB consideration, but embraced all

“paramedical” employees.

57. The OLRB also endorsed a separate nurses’ bargaining unit (another “standard

unit” in hospitals) and created a combined “service” and “clerical” unit - merging two “standard

hospital units” (see below) into an even larger and more inclusive one, that like the paramedical

bargaining unit embraces many different types of jobs, with many different wage/salary rates.

58. However, there were no “PAs” employed by any of the predecessor organizations,

so there is little direct enlightenment to be found in an examination of the OLRB’s adjudication

process (which was conducted in the “consultation format” permitted under the PSLRTA, so

there is no recitation of the facts and very little formal reasoning).

59. The OLRB simply endorsed a “standard” “paramedical bargaining unit” (again see

the discussion below) reflecting both the practice in Ontario hospitals and the “kinds” of workers

who were actively employed by the predecessor hospitals at that time - along with some

exclusions or modifications around the edges that the parties had agreed to, or that seemed

sensible from a labour relations perspective. There were no PAs in that mix, nor did the OLRB

say anything about “medical residents” (who are qualified doctors in a university program that

also involves getting advanced training, by working as employees of the hospital who treat

patients under the supervision of doctors in the specialties to which the residents aspire).

60. Subsequent collective bargaining was based upon these (mostly) broad employee

configurations which, with some minor adjustments, remain to this day.

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61. Over the years, the parties have occasionally had to grapple with whether particular

individuals or occupations were, or were not, “in” that “paramedical” bargaining unit; and, in

fact, they have been quite successful in resolving that kind of problem. However I do not think

that these agreements (set out in some detail in a Partial Agreed Statement of Fact – Exhibit 17)

are very helpful in the instant case, because none of them involved PAs or employees like PAs

(leaving aside whether they were without prejudice settlements). Nor were there any evident or

agreed upon principles that can be borrowed and applied to the present problem.

62. For example, I am told that the laboratory scientists (who were excluded many

years ago pursuant to an earlier OLRB certificate) have remained excluded from the bargaining

unit for historical reasons and despite some later discussions with the Union about their status.

These individuals run the laboratories, determine policy and procedure and clinical objectives,

and are often in positions occupied by physicians (MDs), or PhD biochemists and

microbiologists who are not involved in patient treatment. Likewise the research staff, who (I am

told) are generally physicians who have their own work groups. The radiation personnel seem to

have been excluded because the functions that they perform can result in the shutdown of

departments in which bargaining unit-employees work. And so on.

63. None of these situations (or any of the others noted in Exhibit 17) involved PAs or

anyone like the PAs; and I do not think that one can distill any principles from these resolutions

that are helpful in the instant case.

64. On the other hand, the treatment of “infection control personnel” provides an

interesting example of the danger of putting too much emphasis on "work functions" when

determining the composition bargaining units; because it shows that, in practice, a bargaining

19

unit (which is just a grouping of employees who bargain together under the Labour Relations Act

to set their terms of employment) need not be a watertight compartment in terms of the work

performed by its members. Because in fact, employees in different bargaining units may actually

do the same kind of work; and the “work” of particular jobs can overlap with that of other jobs,

regardless of their placement in one bargaining unit or another.

65. For example, I am told that "infection control" functions at the hospital can be

performed by either a Registered Nurse, in the Nurses’ bargaining unit (represented by the

Ontario Nurses Association) or by a “paramedical” employee, in the “paramedical” bargaining

unit (represented by OPSEU). Both bargaining units contain scientifically trained personnel who

can do the necessary work; so that when there is an infection control “job vacancy” that has to be

filled, that vacancy is “posted” under the job posting provisions in both collective agreements.

66. If the successful applicant is a Registered Nurse then s/he and ‘the job’ will go into

the ONA Nurses’ bargaining unit; and if the successful applicant is a “paramedical employee”,

then s/he and ‘the job’ will be part of OPSEU’s “paramedical” bargaining unit. It is also clear,

from the evidence that a doctor’s duties and a nurse’s duties can overlap too; and that in the

absence of legal prescriptions or limitations on “who can do what”, a doctor may decide to

delegate things to others or do them himself.

67. In 2002 there was another restructuring exercise that was triggered by the transfer

to the Ottawa Hospital of the rehabilitation center that was formerly operated by the Royal

Ottawa Health Group; and a further reorganization took place in 2005, when Cancer Care

Ontario divested a number of operations that were "picked up" by local hospitals. Once again

there was a sorting out of positions into the standard units in place at the Ottawa Hospital; and,

20

once again, there was no emergent principle that is helpful for the present case. 3 There is little

enlightenment to be gained from an exercise that did not involve PAs.

68. By and large, there have been no fundamental changes in the scope of the

“paramedical” bargaining unit over the years; and issues with respect to the inclusion of new

occupational groups have been worked out between the parties pragmatically and without

significant controversy. Likewise when issues have arisen as to whether someone was or was not

a "managerial" employee [an issue which engages section 1 (3)(b) of the OLRA and can go to the

OLRB for a final and binding determination pursuant to section 117 of the Act].4

69. These reorganizations involved defining or redefining bargaining units and putting

jobs or employees into those bargaining units for collective bargaining purposes. However, as I

have already noted, it is the Employer that "creates” those jobs in the first place, and that

generates the job descriptions that, I am told, are not a formal part of the Collective Agreement.

70. On the other hand, Article 26.01 of the Paramedical Collective Agreement does

require the Union and the Employer to work out the salary rate for any newly-created

paramedical job (failing which the matter can be determined by arbitration); and of course,

legislation may affect what particular employees are or are not permitted to do, and what

education or accreditation or licensing may be required to occupy the job in question, or perform

particular duties. Such education, expertise, accreditation or professional responsibilities may

also influence an employee’s salary level, however it is determined.

3 For example, in one instance, in the course of these various reorganizations, OPSEU abandoned a quite plausible

claim that certain persons were "in" the “paramedical” unit (and not the combined office/service unit as CUPE

claimed) in order to avoid a possible representation vote - which makes practical sense but hardly helps establish a

principled basis for inclusion or exclusion.

4 Persons exercising managerial functions are not “employees” under the OLRA and one says that PAs are

“managerial” in this sense. See section 1(3)(b) of the OLRA, discussed below.

21

71. But of course, access to the salary-setting mechanism under Article 26.01 depends,

in the first instance, upon the new employee being a member the “paramedical” bargaining unit;

so that Article 1.02 defines not only the entrance-way into that salary-setting process, but also to

the whole array of other rights and obligations that are collectively bargained (or determined by

arbitration) and that are set out in the Collective Agreement.

72. Conversely, a contract employee who is excluded from the bargaining unit only has

the rights that are in his contract, or that exist at common law, or that are available pursuant to

some employment-related statute.

73. The current collective bargaining structure at the Ottawa Hospital reflects this

historical evolution and now consists of five distinct employee groupings who engage in a

process of collective bargaining as a means of influencing their terms of employment:

(1) a paramedical bargaining unit that is represented by OPSEU

(approximately 2000 employees);

(2) a large amalgamated "service + clerical" bargaining unit, represented

by CUPE (approximately 3800 employees);

(3) a nurses’ bargaining unit represented by the Ontario Nurses Assoction

(“ONA) (3700-3800 employees)

(4) a very small bargaining unit of 10 "medical physicists" represented by

the Professional Institute of the Public Service of Canada (“PIPS”) and

(5) a large grouping of "medical residents" (who bargain together and are

represented for that purpose by the Professional Association of Residents

of Ontario (PARO) (approximately 1267 Residents)

I have used the word “group” in item (5) because it is not clear that residents (being qualified

doctors delivering health care) are “employees” in a “bargaining unit” under the OLRA, or that

their bargaining process is regulated by the OLRA.

22

V- What PAs do: the evidence of Mike Hackett and Gabrielle Papineau

74. PAs are healthcare professionals who work with physicians to provide healthcare

for patients under the supervision of doctors. In that capacity, the PAs take histories, do physical

examinations, order and interpret tests, diagnose and treat patients, and counsel those patients in

respect of their health issues – speaking on behalf of the doctors for whom the PAs work.

75. I was told that the PAs have been recognized and used in the United States for

many years; but in Canada, and until recently, they have only been seen in the Armed Forces -

which had limited access to doctors in many environments, so it used PAs as auxiliary health

care providers. However about ten years ago, PAs were introduced in Ontario on an experimental

basis as part of a pilot project overseen by the Ministry of Health, the Ontario Medical

Association, and the Ontario Hospital Association; and as a result of that successful project, PAs

are now being widely used in teaching hospitals like the Ottawa Hospital. There are also post-

secondary education programs that are designed to train PAs – just as there are programs to train

“paramedical” employees. So there is a new and definable group of caregivers on the scene.

76. Whether under the auspices of the military or in a civilian setting, the PAs learning

program parallels that of a medical student, with a heavy emphasis on biological sciences, like

anatomy, biology, physiology, pharmacology etc. The purpose of that training is to equip the PA

to do diagnosis and treatment within the scope of practice of the doctor to whom s/he will later

be attached. The education program has been designed to be quite general, so that the PA can

later mimic the role of the physician in whatever treatment area that physician practices.

77. The PA works as the “agent” and associate of the doctor – responding to patient

needs in a proactive way in whatever manner reduces the doctor’s work load and allows the

23

doctor to deal with more, or more seriously-ill, patients. For example, in addition to doing hands-

on patient care, a PA may represent the doctors at meetings, or convey a diagnosis in the same

way that the doctor might do (something which cannot be done by a paramedical employee). The

PA attends interdisciplinary rounds for educational purposes and to keep in the loop and s/he

stands in the shoes of the doctor when delegated to do so – including for controlled medical acts.

78. The PAs “scope of practice” is always linked to that of the doctor to whom s/he is

attached, and in this respect, it is unlike that of a paramedical employee whose scope of practice

tends to be narrower and fixed and can be rooted in a statute. That means that the PA will

typically have a broader level of patient responsibility than a paramedical employee would have

– a level of responsibility that is more like that of a medical resident.

79. These propositions were set out in the documentary material that was filed in the

course of this proceeding (especially the Canadian Association of Physician Assistants Scope of

Practice and National Competence Profile); they were echoed by Dr. Kravcik (who works with

PAs); and they were supported by the evidence of PAs Gabrielle Papineau and Mike Hackett –

although Mr. Hackett came to the hospital after many years of military experience, while Ms.

Papineau joined the hospital staff more recently, after post-secondary training to become a PA.

80. Mr. Hackett said that he spent 25 years in the Armed Forces as a "paramedic" (his

choice of words), rising through the ranks and levels of competence. He did extensive training at

the Armed Forces Medical School, including many courses and rotations and clerkships, and that

he developed a wide range of skills that were confirmed by his teachers and by formal

examination. That is what enabled Mr. Hackett to do clinical assessments and treatment plans

and become the primary caregiver (in practical terms) for Armed Forces personnel – working

24

with military physiciansm just as he now does with hospital doctors. Mr. Hackett said that he

became a generalist, like a medical student, but with without ever getting an “MD”. He did not

“prescribe” in his military role, but he did make effective recommendations.

81. Mr. Hackett testified that as a hospital PA, he was effectively “apprenticed” to a

doctor (or doctors), and in that capacity, he was able to diagnose and treat the doctors’ patients –

not as an independent practitioner, but rather under the direction and supervision of those

doctors. Mr. Hackett explained that the initial relationship between the doctor and the PA is

tentative and exploratory, however with growing confidence (both his own and that of the

doctor) the PA begins to do more of what a doctor does.

82. Mr. Hackett was comfortable with the label “physician extender” which appears in

some of the documents that were filed. That term describes someone who amplifies the

physician’s work capacity by taking some of the work load off the shoulders of the doctor, which

allows the doctor to see more patients (for example, the PA can be permitted to do IVs, or minor

surgeries, or sutures or conveying information in the doctor's stead). The PA can also do things

that a paramedical employee might do. For example, Mr. Hackett said that he had learned how to

do techniques like intubation (something that a Respiratory Therapist normally does) and he

could perform the procedure (i.e. he had the skill) if he is called upon to do so.

83. Mr. Hackett said that the only limit on what he does as PA is the scope of the

doctor's practice, his own competence, his comfort level, and the trust level of the doctor with

whom he is working.

84. Mr. Hackett is widely and impressively competent. But his role ultimately, and

always, depends upon what the doctor is disposed to delegate.

25

85. Mr. Hackett had a military background. Newly minted PAs, by contrast, come to

the job with more limited experience. There is an undergraduate degree program (accredited by

the Canadian Medical Association) that is similar to that of medical students, followed by

clinical rotations or clerkships, then comprehensive and didactic examinations to test the depth of

their knowledge and diagnostic skills. They do not get an M.D. as the medical residents do, and

they never become full-fledged doctors; but their education is like that of a medical student.

86. All PAs are expected to meet the requirements set out in the “National Competency

Profile and Scope of Practice” document that has been developed by the College of Physicians

and Surgeons and the Canadian Association of Physician Assistants (CAPA). However, the PA

remains a “generalist” until s/he becomes “apprenticed” to a doctor (as the medical residents do

as well), after which the PAs role increasingly merges with that of the doctor.

87. Mr. Hackett testified that while his hospital job description reflected the general

CAPA Profile, it was not entirely accurate because it was not tailored to the specific PA job that

he ended up doing with “his” doctors. For example, Mr. Hackett said that he doesn't do basic

hematology or electro-cardiology or audiology examinations (which paramedical employees,

doctors or residents can also do), while by contrast, he or an RT could do oxygen therapy or

maintain airways. And he said that lots of people collect blood.

88. But nothing turns on this detail. Given Mr. Hackett’s level of experience, it is

highly likely that he could do anything mentioned in his job description if the occasion arose. For

example, he could do a lumbar puncture with the doctor’s authorization; and there is lots of

overlap with particular tests that are done by paramedical personnel. I am satisfied that the

CAPA profile (Exhibit 1) provides an accurate description of the role and work of a PA.

26

89. Why would someone become a PA? I was told that those who choose the PA role

typically do not want to undertake the additional schooling necessary to become a doctor and

that they prefer the less demanding lifestyle. There are better hours and a better work/life

balance; and in Mr. Hackett’s case, he made that choice after a long career in the Armed Forces.

90. Mr. Hackett said that he now worked with three different doctors on three different

internal medicine teams, dealing with as many as 25 patients, who are also cared for by

consulting doctors, staff doctors, medical residents, and medical students - and by nurses and

paramedical employees. When he comes in to work in the morning he begins by reviewing the

patient's overnight experience, and if necessary, he adjusts medications (like diuretics or blood

thinners) or other drugs - although he may be circumscribed in that regard by hospital rules with

regard to particular medications (like narcotics). He said that the night nurse would need a

doctor’s authorization to make such changes, but that he can do it by delegation, working within

the parameters of the treatment plan documents.

91. Mr. Hackett also works under Medical Directives that allow him to do controlled

acts, tests, and investigations on his own or with more simplified sign-offs. These documents

amount to "standing orders" that are approved by the Medicine Department and that are signed

off in advance by the participating doctors. They supplement and simplify whatever specific

directions or delegations the doctors are comfortable giving to the PAs.

92. The Medical Directives remove the need for some of the prior written formalities

that might otherwise be required to do controlled acts, and they facilitate ex post facto

confirmation of what has been done by the PA. But the doctor is responsible for ensuring the

27

competence of the PA. There is no Regulatory College applicable to PAs and no legally fixed

scope of practice. 5 Mr. Hackett described it as a process of continuous learning by doing.

93. However (as Mr. Hackett put it) the “chain of command” is always through the

doctor, who is responsible for the PAs overall supervision and any related critiques. Mr. Hackett

said that he was like a medical student who never becomes a doctor. 6

94. Mr. Hackett said that the Medical Directives that apply to him are broader than they

once were and that they permit more room for critical judgment than the standing orders

applicable to nurses. Registered nurses and emergency nurses can start IVs, order up lab work or

x-rays, or hook up monitors; and in that respect, there is an overlap between what PAs do and

that nurses do and that other paramedical employees do. And what doctors could do as well.

95. The PA's review the progress of patients in the same manner as medical students

and medical residents, liaising and interacting with the doctors or the residents as required.

Hence the early morning review of the patients’ situation with whatever adjustments to

medications or treatments the PA thinks are necessary; while later on in the day, new patients

may be added to the complement - which requires a similar analysis of their history and

medications in order to see what has to be done and who else they may be required to see. The

orders or changes that PAs make are implemented by nurses or paramedical employees.

96. The PA arranges transfers to other services and in the case of discharge from the

hospital, s/he can participate in discharge planning (on behalf of the doctor), meeting with family

members, or occupational or physical therapists who have a continuing role in the patient’s

5 It was once thought that the PAs would have formal registration and regulation under the auspices of the College

of Physicians and Surgeons, but that did not happen.

6 Medical students working at the hospital also have Medical Directives and are not in any bargaining unit.

28

health. Mr. Hackett said that this is a collective process, but ultimately the PA writes the

discharge order on behalf of his supervising physician (since the PA is delegated to do that). At

the end of his work day, the PA updates the patients’ situation so that it will be available for the

doctors on call, and for the night staff who have to know what needs to be done on their watch.

97. The treatment plan for a new patient is team effort, but there is a considerable

degree of latitude for independent PA action within the scope of the plan and in response to the

emerging needs of the patient – like ordering diuretics, increasing oxygen levels, adjusting

medications, and what might be described as in a nonmedical setting as “troubleshooting”:

diagnosing the problem and finding a solution. The PA not only ensures that what has been

directed to be done has been done, but s/he can also order new tests or make adjustments to the

plan initially put in place by the medical team.

98. According to Mr. Hackett, it is the consult team that puts the treatment plan

together in the first place and he adjusts from there – under the supervision of the doctors. It is a

collaborative effort and if a co-signature is needed Mr. Hackett said that he could get it by

telephone, or later from the doctor; and, as noted, he would routinely initiate medication changes

in accordance with a Medical Directive or by writing his own name, then putting "per Dr. X", to

indicate the delegation. The PA is responsible for what he himself does, but he is not alone.

There is ongoing consultation and review by residents and doctors. It is a team effort.

99. Mr. Hackett also indicated that he consults with nurses and with paramedical

employees – like the Pharmacists about drugs; but he was uncomfortable with the suggestion that

he was "ordering" them to do things. He noted, for example, that the Pharmacist is the

pharmacological specialist and thus the “expert” on the therapeutic use and range of drugs; so

29

that the Pharmacist may suggest a change in medication in response to observations or test

results. But the Pharmacist cannot actively change the dose, so (Mr. Hackett said) he and the

Pharmacists co-sign the order which is then implemented by nurses.

100. The PA can also write the resuscitation protocol in consultation with the patient and

his family, which is then co-signed by the doctor. The PA conveys medical information and

diagnoses (like a diagnosis of terminal illness) to the patient's family – which is something that

cannot be done by paramedical; and while Mr. Hackett can pronounce the fact of death (there is

no evidence that a paramedical employee can do this) he cannot sign the death certificate. The

doctor has to do that. The doctor also has to assign code status.

101. Mr. Hackett said that nurses and paramedical employees bring issues to his

attention and that he responds to their enquiries and suggestions as a doctor would do if he were

available. He is the “go to” person for that purpose. He prefers to discuss such issues with the

doctor, but in the meantime he takes whatever action he thinks is necessary.

102. Mr. Hackett emphasized, once again, that treatment is a collaborative process, so

that if a Respiratory Therapist (and “RT”) suggests something to him, Mr. Hackett may agree

and proceed, or they may discuss it together, and if there is no agreement, then doctor will be

told about it. There is a professional dialogue with paramedical employees who, like the

Pharmacists, have specialized expertise of their own.

103. Mr. Hackett confirmed that disagreements with other paramedical professionals or

nurses are sorted out by the doctor, but the outcome is signed off by himself or the doctor. The

ultimate responsibility for the orders that he makes, falls on the supervising doctor, so the PA

must always keep that doctor abreast of what is happening with the patient.

30

104. Mr. Hackett testified that apart from the orders that he writes pursuant to Medical

Directives (which a paramedical employee might not be “required to follow” if there were some

professional disagreement about it) Mr. Hackett can initiate consultations with paramedical

personnel as to the most appropriate technique or treatment response (by a RT for example); and

once again, if there is any controversy or uncertainty the PA would bring in the doctor. Mr.

Hackett said that he cannot “force” someone to do a test or procedure; but the recipients of such

directions are expected to follow them unless there are professional or ethical disagreements, in

which case the doctor comes into the picture.

105. However it is important to note that this evidence was all rather conjectural. Mr.

Hackett emphasised that professional disagreements of this kind do not generally happen because

the treatment process is collaborative and healthcare providers share a common interest in doing

what is best for the patient. Other personnel can also be plugged in as needed. For example, if a

patient has cognitive issues, a Psychologist might be added to the group.

106. Mr. Hackett said that a PA is not and never can be a doctor or an independent

practitioner like some of the paramedical employee can; and it is evident that paramedical

employees also (notionally) “get their work” from doctors, who must be satisfied with what is

being done. Doctors also work directly with paramedical employees in various capacities (like an

anaesthesiologist who works in the operating room with an Anesthesiology Assistant).

107. However, Mr. Hackett thought that his own PA scope of practice was broader and

more variable than that of, for example, a nurse practitioner whose role is statutorily defined. He

thought that the paramedical employees were more focused and limited, and in my view the

evidence supports this viewpoint.

31

108. Mr. Hackett thought that unlike the paramedical personnel working in silos he has a

more direct role in diagnosis and treatment and ordering diagnostic tests (like the doctor does) -

and also in fashioning a treatment response that can span various silo specialties. For example, if

someone like an RT notices a clinical problem (like oxygen saturation), the RT calls on the PA

not the doctor. The PA does a patient assessment to see if he can determine what the problem is

and what to do about it (for example if there is congestive heart failure or he needs to order

diagnostics or medication), then he explains to the doctor what has happened and what he has

done. And if puzzled he calls the doctor into the initial decision making process.

109. Mr. Hackett agreed that the PA has a “kind of silo” too, because doctors they wor

for have specialties; but as Mr. Hackett sees it, the PA treats the whole patient, using a broader

range of techniques and interventions than individual paramedical employees do. And for the

same reason, the PAs role necessarily varies from day to day, and doctor to doctor, and

department to department. He said that it is challenging role that involves continuous learning.

110. The doctor sorts out the distribution of patients as between the available PAs - a

process that Mr. Hackett said involves a lot of give-and-take; and a PA could not treat someone

without the doctor having first established a relationship with the patient. But once that is done,

many of the things that the doctor does can be done by PAs or residents.

111. Mr. Hackett's said that he saw an advertisement for a PA job at the Ottawa Hospital

and that he was interviewed for that position by doctors, and that he deals with the Hospital’s

human resource department in relation to employment matters. He is an employee of the

hospital. But things like vacations are set in consultation with doctors and he gets compensating

time off for any extra hours worked.

32

112. Mr. Hackett does not do what are normally considered managerial functions. He

writes orders that require action by nurses and other employees, but he has no "managerial"

authority to discipline anyone, or to direct someone to work over time, or to schedule a vacation.

113. Gabrielle Papineau is a PA in the orthopedic and spinal surgery department who

entered the profession via a two-year PA program at the Mc Master University. She has no

military background. She said that admission into the PA program requires two years of

undergraduate training, but that most entrants have more education than that. She herself had a

BA and an MA in kinesiology. She meets the CAPA competence profile.

114. Ms. Papineau described her role and her relationship with her supervising doctors

in much the same way as Mr. Hackett did (although she is far less experienced). She has a

"contract" with the supervising physician that essentially welds the two of them together - the

doctor agreeing to supervise and the PA agreeing to assist on the basis of delegations from the

doctor and "appropriate authorizing mechanisms".

115. This document has several interesting features and caveats. The PA is designated as

the “agent” of the physician and is bound to provide patient care only within the doctor's own

scope of practice (which presumably the PA is expected to know); and the PA undertakes to

perform only those duties that are properly assigned or delegated. S/he is also expected to refuse

duties for which she has not been adequately trained.

116. The doctor undertakes to provide direct supervision and to review the work of the

PA and to be available for continuing consultation. However the document stipulates that there is

no employer employee relationship with the doctor and it purports to disclaim any liability for

anything done by the PA beyond the scope of his delegation.

33

117. Ms. Papineau described a range of responsibilities that are broadly similar to those

of Mr. Hackett, but more narrowly focussed. That reflects her lesser level of experience and also

her placement with doctors doing orthopedic or spinal surgery (different from what is done

where Mr. Hackett works). In this respect she said that she may work with doctors and residents

to do quite complicated things, like installing a Halo surgical traction device and putting in pins

– something that residents do, but no paramedical employee does. She said that typically there

are doctors there while she is doing this technique, but that she did it once on her own. The

training to do that halo procedure came from a neurological nurse.

118. Ms. Papineau said that, at first, she worked very closely with doctors; but with

increasing competence and physician comfort, she was delegated increasing responsibilities. She

now sees patients on her own, she does patient work ups, and she develops plans which are

reviewed by the doctor who decides what to do. She spends about two days a week in a clinic

working directly with doctors, one day seeing patients on her own then discussing matters with

doctors at the end the day, and one day in an operating room as part of the surgical team.

119. Like Mr. Hackett, there is a list of controlled acts that Ms. Papineau can do by

delegation or by Medical Directives – which, as in Mr. Hackett’s case, avoids paper work and

facilitates flexibility. Ms. Papineau said that an acquaintance, Jodi Paschal, a PA working in the

orthopedic trauma area, has a different delegation checklist, reflecting different treatment

techniques – again confirming that the PA role varies with the doctor to whom s/he is attached.

120. Ms. Papineau thought that if she lost her supervisor she would lose her job; but she

noted that in the doctor's absence another one is substituted, so the relationship with particular

doctor is not immutable or carved in stone. Another physician could step in.

34

VI – Doctor Kravcik’s perspective

121. Dr. Kravcik is a medical internist who practices at the Ottawa Hospital. He is part

of a team that includes doctors and medical residents and medical students and PAs. Dr. Kravick

has admitting privileges for his patients but he is not paid directly by the Hospital. I gather that

he works on a fee for service basis and gets funds – colloquially, “health care dollars” - that are

made available through the Ministry of Health or some other government or funding agency.

122. Dr. Kravcik said that his more seriously ill patients are likely to be assigned to

“teaching units” were there are medical residents involved in their care. Medical Residents are

doctors who are employees of the Hospital and provide patient care, but are also engaged in a

program of continuing education through a University; so they will likely learn more from

treating the more acutely ill. Less seriously ill patients are more likely to be cared for by PAs.

123. There are now four PAs in Dr. Kravcik’s group (the Division of General Medicine).

Dr. Kravick said that the PAs decide whether a particular patient being transferred into their own

orbit and whether they are comfortable with such assignment (recall that the PAs are not

supposed to take on things that they do not think they can handle) and that if the patient is

struggling s/he can be transferred back to the teaching group.

124. From Dr. Kravcik’s perspective the PAs and the medical residents perform broadly

similar duties. He said that the PAs were like a strong medical resident and that they play an

important role in helping the doctors to manage patient care – shaping and channeling Dr.

Kravcik’s own efforts, based upon the PAs judgment about when the doctor needs to be directly

engaged. Dr. Kranchik said that the PAs do many mundane things (thus relieving the doctor of

35

those responsibilities) but that they can also do quite challenging things; and that they take the

pressure off the physician - allowing the doctor to handle a larger number of patients.

125. Dr. Kravcik testified that a PA can be responsible for as many as 12 to 18 patients

and that s/he typically works with several doctors - with a division of responsibilities that

depends upon the level of trust and the PA’s demonstrated abilities. The PAs do whatever the

doctor directs and delegates – working under the doctor’s scope of practice, as facilitated by

Hospital Medical Directives. Those Medical Directives are signed off by the doctors in the

medical department where the PA is situated and they increase the flexibility of the PAs role by

removing the requirement for specific written authorizations (which is how Mr. Hackett

described them as well).

126. However, Dr. Kravcik testified that any important work decisions would be

discussed with him, and that after the fact he would typically ratify what the PA has done. As Dr.

Kravcik put it, it was “his name on the chart”; and the degree of delegation and supervision and

extent of physician-PA interaction, depends upon the patients’ needs, the parties’ comfort level,

and the PA’s demonstrated skills. There is no guarantee of a particular volume or kind of work,

which always originates with, and is funnelled through, the doctor’s own scope of practice.

127. Unlike the medical residents, the PAs are not involved in any medical training

program (although the PAs do arrange their own continuing education); and according to Dr.

Kravcik the PAs start from a broad but shallow knowledge of medical areas, which gradually

expands with experience and becomes congruent with the scope of practice of the doctors for

whom they working. They learn what the doctors do and expect in particular circumstances, and

36

they gradually take over part of that role – subject always to the doctor’s supervision, but freeing

the doctor to concentrate on other matters or handle more patients or more clinics.

128. The PAs are moved around in accordance with need (like the residents are); and

things like meal breaks, hours, or vacation time are worked out flexibly, as the needs of the

department require. These issues - like so much else involving professionals - are worked out on

a consensus basis. There is a high degree of cooperation and collegiality between the doctors and

the PA and with other hospital employees with whom they interact.

129. Dr. Kravckik said that the doctor has to be satisfied with the performance of the PA

and that any questions in that regard would have to be addressed by the doctor and by the

medical department. The PAs have to get along with their supervising doctors.

130. However there were no concrete examples of such problems and there is no formal

appraisal of the PA’s performance. Nor am I able to assess how frictions would be dealt with if

the behaviour in question involved a PA and a paramedical employee or a nurse – although these

employees have professional responsibilities too, and being unionized, would have access to a

more formal process of review if the paramedical employee or nurse believed that the doctor or

the PA was acting unreasonably or unprofessionally. A Regulatory College might also be

involved if there were an issue about “proper delegation” or paramedical practice.

131. Since the PAs have no Regulatory College and are not covered by a collective

agreement, there is no similar basis, in their case, for an independent outside review.

132. However, this area of Dr. Kravick’s testimony involved the kind of "hypothesizing"

that I referred to earlier. There is no actual evidence of any problems with a PAs performance, let

37

alone how they would be resolved, or who would be involved, or what remedial or other steps

would be taken; and while it is no doubt true that the PA must get along with the physicians

whom they assist, it is less clear what happens if they do not.

133. I think it is fair to say though, that if there were complete incompatibility or a

relational breakdown with the supervising doctor, the department would have to find another PA

and the PA would have to find some other doctor to work with. Or s/he might be “out of a job”.

Because the PAs work is ultimately determined by the needs of the doctor and the department in

which they are situated – although, like nurses, the PAs educational background means that they

could move around or “assist” other doctors if the “personal fit” turned out to be wrong. But

given the PA’s status as a “contract employee” there is no guarantee of job security, regardless of

who is “right” or “reasonable” in any given situation; and in this respect their situation is

somewhat different from that of a unionized employee (although, to repeat, I had no actual

example of what would happen if, for example, a paramedical employee could not get along with

a doctor or a doctor thought that his/her performance was inadequate or inappropriate).

134. Dr. Kravcik explained that the use of PAs originated in a workload crisis some

years ago when there were fewer residents than expected. The doctors had difficulty handling the

work load and were forced to look for ways to off-load their less acute patients. Mr. Hackett was

engaged at that time and the experiment was so successful that more PAs were hired.

135. Dr. Kravcik said that if a Department wants to add PAs to the team, that

Department (and the Hospital) would have to “find the funding” for such positions. But it is quite

unclear how this is arranged or what Hospital administrators are involved; and, it seems to have

varied over the years as the use of PAs moved from the experimental stage to more regular use.

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136. It suffices to say that the salaries of PAs seem to be supported by public "healthcare

dollars" which ultimately come from “the government” or from outside funding sources of one

kind or another; and the Hospital, as employer, is required to "find" the money once it is has

been decided that another PA will be taken on – just like for any other type of employee or

operational initiative for that matter. The hospital’s ability to self-fund is quite limited.

137. The selection of the PA applicant is largely controlled by the doctors in whose

department the PA will be working. 7 However in a general sense all employees – including new

employees - are funded from “health care dollars” and “funding pockets”; and the hospital has to

secure funding and manage its budget to support its programs and those who staff them.

138. It is clear that Physician Assistant would not have a job unless there were one or

more doctors willing to work with that PA and there was “funding” for the position; and further

that, as the doctor’s surrogate in many ways, there has to be a high level of trust. But not only

was there no actual evidence that a ruptured personal or professional relationship has led to any

adverse employment consequences for a PA, Dr. Kravcik testified that whether a particular

physician "takes on" a PA is not really a matter of choice. The PAs are now an integral part of

the health care team in some areas of the Hospital; so that a doctor could not be part of that group

unless s/he was willing to make use of, and work with, a PA. In this respect the PAs are part of

the human infrastructure supplied by the Hospital – like the nurses or paramedical employees

who also work with and assist doctors in various ways.

7 For example, the evidence is that there have been grants funneled to the Hospital though the Ministry of Health to

pay for PAs but it is unclear whether or how some of the fee-for-service payments earned by the doctor (who can

now take on more patients and run more clinics) can be used for this purpose; and I am told that there were ongoing

questions about whether the doctors can bill for work that is actually done by the PAs. Ms. Papineau believed that

the funding for her position was 50 % for the Ministry of Health, 25 % from doctors and 25 % from the Hospital;

and that was Mr. Hackett’s view as well.

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139. Dr. Kravcik said that he had no involvement in setting the PAs terms or conditions

of employment or administering employment-related matters (like whether a PA gets T4 for

income tax purposes). Similarly, while he thought that his own liability insurance covered the

work of the PAs, he thought that they also had their own insurance - although he did not know

who paid for it. (Mr. Hackett said that it was the Hospital that provided the insurance).

140. In summary then, Dr. Kravick said that, in his view, the PAs have a broader focus

and more continuous involvement with patients than the "silo" employees do – similar to that of

a medical resident. As Dr. Kravich described it: the PAs look at and work with the whole plan of

care; rather than the pieces of it performed by the paramedical specialists.

141. However, unlike the medical residents – who are doctors in their own right and

have the authority to write orders or direct patient interventions – everything that the PAs does is

accomplished by delegation or by pre-authorization under a specific “Medical Directive”. Dr.

Kravcik’s metaphor was that of “pilot and co-pilot”.

VII - The PAs terms of employment

142. The PA's were hired individually as the Hospital determined its needs and worked

out the availability of funding for each of the new PA positions. There are now six PAs (Mr.

Hackett was the first). In each case, there were individual discussions with each prospective

employee, and the result of those discussions was embodied in an exchange of documents, on the

Hospital’s letterhead, making an offer of a two-year contract of employment, with the possibility

of renewal and extension (which is what happened).

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143. Apart from that temporal limitation, though, the PAs terms of employment are not

fundamentally different, in kind, from those that one finds in the Collective Agreement –

although less generous in some ways, and less detailed, and (arguably) less restrictive than the

collectively-bargained provisions, and certainly giving the Employer more leeway to take

unilateral action in accordance with its own needs and corporate policy.

144. The PAs terms of employment are administered by the Employer's Human

Resources Department (as is the case for bargaining unit members) and they include fairly

standard things like a probation period, (longer than the one in Article 11.01 of the Collective

Agreement), a basic 37.5 hour workweek (just like the one in Article 17.01 of the Collective

Agreement), a stipulated salary (described for Mr. Hackett as an annual salary and for Ms.

Papineau as an hourly rate – but, in form, not unlike those found in Appendix A of the Collective

Agreement). There is also a series of formalities that have to be undertaken by the PA prior to

commencing active employment, just like any other employee: a criminal record check,

confirmation of his/her educational requirements, and some mandatory health screening that is

performed by the Hospital’s Occupational Health and Safety department. There is "new

employee checklist" that has to be followed and some payroll documentation to be signed.

145. The PAs have a schedule of benefits types (extended health care, dental, group life,

accidental death and dismemberment, etc.) that are mandatory and are broadly similar to those

that are customarily dealt with in collective bargaining and are applicable to bargaining unit

employees. For example, vacation leave arrangements for the PA’s include a component for

educational leave – recognizing the importance of continuing education for these new

professional employees. And so does Article 15.06 of the Collective Agreement, which deals

with “Education Leave” and Article 25.01 which deals with “Professional Development” and

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Article 25.02 which deals with “Continuing Education”. In Mr. Hackett's offer letter he was

advised that "you will fall under the entitlements and working conditions as outlined in the Terms

of Reference and Working Conditions for Management 1 and non-union Professionals.”

146. Accordingly, while the PAs terms of employment are embedded in individual

contracts (with the strong flavor of a contract of adhesion) the subject areas canvassed in that

documentation are not materially different from those that are canvassed in collective bargaining

and in the Collective Agreement (which is also a contract of adhesion, of sorts). It is just a matter

of which “group” the PA is assigned to; and in neither case does s/he have much personal say in

the matter. S/he has little choice - other than quitting and going to work elsewhere.

147. To be sure, the collective bargaining regime and the individual contract regime

obviously have different legal characteristics. However, in practical terms, the PAs do not

occupy an alien universe insofar as their terms and conditions of employment are concerned.

Their terms of employment generally resemble those of their paramedical co-workers – with less

job security, and, on the evidence, a salary that is lower than it would be if their work

contribution were objectively evaluated in the manner that is required for bargaining unit

members (see Ms. Cornick’s evidence below)

VIII - What some “paramedical” employees do: the job duties of the comparators

148. The paramedical employees who gave evidence are not medical doctors. They do

not do the range of things that medical doctors do, nor do they do what PAs do; and while they

certainly work with doctors in various specialties and in various contexts, they are obviously

different from PAs, and they are equally obviously different from one another. The umbrella

word “paramedical” embraces profound differences as well as some broad similarities.

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149. These paramedical employees typically work in what the witnesses described – I

think accurately - as professional “silos” (not unlike the professional specialties in which doctors

themselves practice); while, by contrast, the PAs start as generalists, whose delegated duties

gradually come to resemble those of the doctors for whom they become the “surrogate”. The PAs

adapt themselves to the doctors’ needs – the better to relieve those doctors of patient

responsibilities, by delegation, and via Medical Directives that reduce the need from direct

doctor intervention. Thus the PAs scope action and their ability to address patient needs is

broader than that for any of the individual paramedical employees from whom I heard evidence.

150. The paramedical witnesses also address patient needs. But they do that through the

lens of their own professional speciality and with a more focused expertise However, in many

cases they derive their “work” from doctors like PAs do, and they must conform to the doctors

directions; moreover their “silo” may be congruent with that of the doctors with whom they work

(the Psychiatrist and the Psychologist for example, or the Chiropodist and the Physiatrist). They

are separate paramedical professions with an independent scope of practice, but they work within

a sphere dominated by doctors, and (in treatment terms) they are subordinate to them.

151. To be clear: there is no dispute that the PAs are a new and different employee

classification; and no one says that the PAs particular mix of duties (reflecting those of “their”

doctors) is the same as that of any pre-existing paramedical classification. They truly are a “new”

and emerging professional group - even though they are not regulated under the HRPA.

Moreover I think the evidence shows that the PAs have a much wider range of professional and

medical responsibilities than any of the paramedical employees who gave evidence. I agree with

the Employer’s submission in that regard.

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152. It is evident therefore that a PA (like Mr. Hackett who was a highly qualified

example) may do a number of things that may be different (a little or a lot) from the paramedical

comparators who gave evidence: a Psychologist, a Chiropodist, a Respiratory Therapist (RT), an

Advance Practice Physiotherapist (APP) and an Anaesthesiology Assistant (AA). For example:

he could write a DNR notice, represent the doctor in family meetings, communicate the

diagnosis of a terminal illness to the patient or his family, “run” a “code blue” (which is a term

used to describe a patient who requires resuscitation or is in need of medical attention – often as

a result of respiratory failure or cardiac arrest). The PA could help channel patients from the

doctors teaching team to the PA team, do pre-operative work ups, or prescribe fluids for blood

pressure issues, or order up imaging or other diagnostic tests. And the RTs, for example, did not

do any actual surgery in connection with intubation or opening an airway.

153. However, the question in this case is not whether the PAs are “generalists” or

“specialists” or “different” from other employees, or a “new” and different “profession” in the

hospital environment, or more responsible than paramedical employees for particular kinds of

treatment or for patients in general - but rather whether the PAs can be fairly said to be

“paramedical” employees within the meaning of the opening words of Article 1.02. The case is

about what kinds of employees participate together in collective bargaining - not the outcome of

that collective bargaining, or the content of the work that the employees are expected to do,

within the “scope” of their own “practice”, or how they go about doing that work.

154. And with that in mind, I think that the evidence of the “paramedical” witnesses,

does help to illustrate the elasticity and inclusiveness of the word "paramedical" (and thus

arguably informs its meaning); and also that it may provide some perspective on the (allegedly)

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critical distinction between "medical duties" and "paramedical duties" – the distinction that the

Employer says is absolutely central to the interpretation of Article 1.02.

155. The evidence of these paramedical witnesses was tendered for that illustrative and

contextual purpose. However, despite the way in which the Union has developed its case, I think

it is sufficient to take the "broad brush approach" that (in my view) is also called for, and

reflected in, the word "paramedical" itself.

Doctor Gretchen Conrad – Staff Psychologist

156. Dr. Gretchen Conrad is a Staff Psychologist who runs programs for patients who

present complex and difficult behavioural and mental health problems. Her role is to facilitate

the treatment of those patients/clients; and in that capacity she exercises a range of professional

and leadership responsibilities, including: direct therapy, coaching and counseling subordinate

staff, some budgetary involvement, and participation on a number of hospital committees.

157. Dr. Conrad does psychological assessments and provides psychological services in

accordance with the needs of the patient and the standards of practice of the College of

Psychologists, of which she is a member. She displays a considerable amount of independent

judgment (i.e. she does not work only by delegation); and she noted that senior Psychologists

may work with physicians and nurses and other healthcare and “helping” professions.

158. Ms. Conrad has a PhD in clinical psychology which she earned after many years of

study and clinical training; she has worked in a variety of diagnostic and therapeutic roles; and

she is a member of a number of professional organizations (the Canadian Psychological

Association, the College of Psychologists of Ontario, and the Hospital Psychology Association

45

of Ontario). She is paid a salary, but she has worked under, and received, grants for research

projects; she has attended numerous scientific and professional gatherings where she has made

presentations; and she has authored a number of peer-reviewed papers (which she said is an

expected part of her job).

159. She has also engaged in in-house policy review and program development; she has

taught at the University of Ottawa (as she said at a number of Psychologist do - supervising

graduate students); and she has been generally responsible for assessing the behavioral and

mental disorders of clients, in order to make and communicate a diagnosis (which she is entitled

to do under the RHPA). She said that at her level she did not get the easy cases, and that she

participates in the diagnosis and development of a treatment plan, as well as the hands-on

delivery of different kinds of therapy.

160. In order to maintain her license, Ms. Conrad was required to do written

examinations and she is required to be familiar with about a dozen pieces of legislation. The

College defines the areas of competence in which the registrant must establish proficiency. There

are specialties too; and in the course of her work, she is expected to consult with other healthcare

professionals, just like doctors and nurses do. It is a “professional practice”.

161. Ms. Conrad testified that there is a collaborative relationship with psychiatrists

(doctors in that specialty) because the patients present a variety of mental and psychiatric

conditions (like bipolar disorder or depression or schizophrenia). She said that she has to

interpret various tests, to analyze the symptoms and their severity, and to review the clients’

medical files in order to help figure out the origins of the behaviour being observed; and in that

regard, she deals with the patient directly (e.g. taking a history). Psychologists typically work

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with Psychiatrists – although currently she does not. In her present role she works with registered

nurses (in the nurses bargaining unit) and with social workers (MSWs) in the paramedical unit.

162. Ms. Conrad said that developing a patient treatment plan is a collaborative

endeavor, but that the medical aspects of treatment are managed by doctors, since she does not

have the legal authority to prescribe drugs. However, she does have to understand the underlying

science of mental disorders and she has to be familiar with the efficacy of medications which are

discussed with the doctor. It is a College decision about who can prescribe drugs; and only a

medical doctor (not a PA or a paramedical employee) can prescribe narcotics

163. In Ms. Conrad's opinion, the Psychologist and Psychiatrist are both mental health

professionals, whose expertise and roles overlap – although their Regulatory Colleges are

different and the doctors (being “consultants”) need not be direct employees of the hospital. Dr.

Conrad also works with and supervises “psychometrists” who administer and interpret tests; and

she has a degree of responsibility for their performance – although she said that work

deficiencies or professional practice issues would ultimately go to the Chief Psychologist, who is

a manager excluded from the bargaining unit. But the Staff Psychologist is responsible to

monitor the proficiency of the non-registered personnel who are part of their team and there are

professional reporting requirements.

164. Ms. Conrad conceded that a psychologist would typically only work with a

psychiatrist and not with other kinds of doctors. She has never worked with a PA. However, a

some psychological services can be provided without a doctor's involvement; and where a doctor

is involved, she said that the relationship is a collegial one with each professional considering the

patient from his/her own perspective - having regard to the expertise and input of the other.

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165. Ms. Conrad indicated that she could be called into the "circle of care" for a patient

by a doctor or a nurse, but that the treating doctor is the "most responsible" for patient care and

that she is only responsible for the patient's mental well-being. That is the sphere in which she

can act independently - although in practice she would always discuss the situation with the

physician. She could not recall any instance were her recommendation was "countermanded".

166. The doctor is responsible for admission and discharge of the patient with

psychiatric issues, but according to Ms. Conrad, it would not likely happen without a senior

psychologist being involved. And some kinds of psychological therapy can be undertaken

without any doctor’s involvement all.

167. Ms. Conrad said that she was not obliged to follow the direction of the psychiatrist

and that she could ignore a psychiatric diagnosis, just as the psychiatrist could ignore her own.

But in practice, questions of this kind were completely hypothetical, because of the collegial

approach that all healthcare providers are expected to bring to their part of the treatment process.

There is a high degree of collaboration and mutual respect for complementary professional roles.

168. Ms. Conrad said that psychologists do not make purely “medical” decisions

because they are not physicians; nor (for example) do they have the legal authority to compel a

patient to submit to mandatory observation or assessment (which as a matter of law is the role of

a physician). She has no involvement with other diseases or disorders except to the extent that

they may bear upon her particular area of expertise, and she only needs to know about

pharmacology in connection with her patient/client’s psychological problems.

169. For example, she would not have any involvement with liver disease or problems

with someone’s feet or hands – although it seems rather unlikely that a psychiatrist would either,

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because the doctors also work in silos, while remaining “doctors” for the purpose of fee-for-

service administration or any interactions with “the Government” as funder and paymaster.

170. Ms. Conrad does not do many of the things that, I was told, some PAs do. She does

not write a DNR order; she does not represent the doctor in family meetings, and she cannot run

a "code blue". Nor of course do the PAs do what Dr. Conrad does.

171. In short, Ms. Conrad is a highly educated and well paid mental health professional,

and since there is no evidence that psychiatrists have PAs, I can only speculate about how she, or

they, might interact if there was one on the scene.

Ruth Thompson – Chiropodist

172. Dr. Conrad's professional practice involves mental and behavioral disorders. Ruth

Thompson, the Chiropodist, is completely different. She works with feet.

173. Ms. Thompson works in a foot care clinic where there are orthotic technicians and a

receptionist but no doctor or nursing support. Nor is there any direct supervision of her work.

She has a Bachelor of Science Degree (which involved training in the biological sciences and a

clinical placement) and like many other paramedical employees, she is regulated by a "College"

which sets the licensing and competence criteria and conducts examinations to ensure that

registrants meet those requirements.

174. Ms. Thompson’s scope of practice is determined by statute and it can be expanded

from time to time to meet the expanding needs and capacities of the profession. Ms. Thompson

said that this was currently being considered by the Health Professions Regulatory Advisory

Council (the body that considered and rejected the PA's bid to become a designated health

49

profession); and that the HPRAC is currently considering whether to increase the number of

“controlled acts” which a Chiropodist can do – including ordering and reading x-rays and blood

work, since that information is useful for her practice and would facilitate the efficient treatment

of patients. The role of paramedical employees evolves – just like that of the PAs.

175. Ms. Thompson said that she is able to independently prescribe certain medications

(like anti-inflammatories or analgesics) but she cannot prescribe narcotics (nor can any non-

doctor). However, while she can prescribe medications, she said that she cannot formally

communicate a “diagnosis” to patients (which is a “controlled act”) – although she said that she

always explains to the patient what the medications are for.

176. Ms. Thompson can also do limited kinds of surgical interventions which require

that a “medical consent form” to be signed by the patient. She provides ulcer care which includes

cutting tissue to promote healing and is done under local anesthetic. She has her own insurance

and has insurance coverage with the Hospital as well – reflecting (as with other paramedical

employees) the possibility that a negligent act might produce harm and therefore expose the

health care worker or the Hospital to tort liability.

177. Patients are referred to the clinic by a doctor in the hospital or in the community;

and in the course of her work, Ms. Thompson is required to review the patient's history, consider

his/her overall health, weigh the importance of other medical interventions, and check blood

flow, blood pressure, neurological status, feeling, and biomechanics. She has to apply her

“scientific” and (para) medical knowledge to the case at hand.

178. Ms. Thompson does not require a doctor’s specific approval for the work that she

does, or for the treatment that she provides, or for the drugs that she prescribes in the course of

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treatment. However, she does work in cooperation with doctors (like physiatrists) and she attends

a clinic with orthopedic surgeons. She noted that diabetes is a common cause of foot problems.

179. Ms. Thompson said that in the course of her work, there is lots of liaison and

discussion with doctors - including with dermatologists - and that there was equally close

cooperation with technicians who develop the special footwear or orthotic devices that are used

to address the patient's foot problems. She writes the prescriptions for such supportive devices

and she monitors the quality of the technician’s work. But if there is any dereliction of duty or

remedial action required, that would be dealt with by “management”.

180. Ms. Thompson's scope of practice does not depend upon that of the doctors with

whom she collaborates. But obviously, she does not treat conditions like heart or lung disease or

hypertension; she cannot work outside her scope of practice without a doctor's delegation; and a

doctor's direction can override what she might otherwise be inclined to do. But my impression of

her evidence is that she mostly works independently and that her relationships with doctors are

cooperative and cordial – like that of the other paramedical employees who gave evidence.

181. She does not represent doctors in meetings, or answer pages, or write DNR orders

or communicate the diagnosis of a terminal illness to family members (all of which, it is said, at

PA can do if so delegated). Nor can she diagnose or treat diseases like diabetes even though that

might be the cause of the foot problems that bring the patient to Ms. Thompson's attention.

182. Her focus is feet; and if other problems arise (like an infection that becomes more

serious despite the prescription of anti-biotics) then she refers the patient along to a doctor. A

chiropodist would not be expected to do otherwise – just as a psychiatrist would not be expected

to treat someone’s foot problems.

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Linda O’Regan – Respiratory Therapist

183. Linda O'Regan is a Respiratory Therapist (“RT”), a 35 year employee of the

Hospital, and a Union official; and in these capacities she has personal knowledge of the role of

“paramedical employees” like herself. However, she has not worked directly with PAs and has

no direct knowledge of their situation (other than from the documentation that describes it); so

her observations in that regard have to be taken with a grain of salt. This is not a reflection on

Ms. O’Rgan's credibility, but only that her source of her information is indirect; so her answers

to propositions put to her by counsel (both sides) have to be considered in that light.

184. Ms. O'Regan has a gained a wide range of experience in all areas of the hospital,

which she joined after getting post-secondary training as an RT. She is registered with the

College of Respiratory Therapists of Ontario (CRTO) and she meets that body’s competence

requirements – which are a condition of her employment. There is continuing education as the

profession develops and RTs can participate in "rounds" for educational purposes like some

other hospital employees do.

185. Respiratory Therapists are healthcare professionals (non-doctors) who participate in

the assessment and treatment of cardiopulmonary disorders and other maladies that require them

to maintain open airways. They assist with intensive care and surgery patients by providing life

support for those who cannot breathe properly. RTs are present at high risk births, they help

stabilize high risk patients, and (like Paul Aboueid, an Anaesthesiology Assistant who also gave

evidence – see below) they assist anaesthetists (who are specialized doctors) in the operating

rooms, by administering inhaled drugs and medical gases. In that role the RTs operate

specialized equipment for which they have been trained. And they maintain open airways.

52

186. There are gradations of competence within the RT group and there are Medical

Directives that permit them to act without a specific written order – something that Ms. O’Regan

said is quite useful in a cardiopulmonary crisis, where it is important to act quickly to manage

obstructed airways. She testified that certain techniques, like arterial punctures, were once done

only by a doctor, but they can now be done by an RT, although this still requires a verbal order

from the doctor (a notional “delegation”, but also illustrating that the "work" of doctors and

paramedical employees can overlap).

187. Ms. O'Regan explained that she works under the statutory umbrella of the

Regulated Health Professions Act and the Respiratory Therapy Act, and that within that

framework there is a prescribed scope of practice. However, from time to time there are

professional controversies (managed by the CRTO, the Regulatory body) about the intersection

of the RT's role with that of other healthcare providers – like whether medical acts can be

delegated by the (relatively) new Nurse Practitioners, or only by the doctor or dentist or midwife

(who have their own Colleges and designated scope of practice).

188. I gather that there is some controversy about who has the legal authority to delegate

medical acts to RTs and what formalities are required; and that these kinds of questions may also

pertain to the new PAs. As I understand it, there is some issue about whether an RT can take

direction from a PA (who is himself working by delegation) or requires a doctor's co-signature,

and whether it can be provided after the fact.

189. But that is not an issue that I have be decide and is also pretty remote from the

interpretation question that the heart of this case: whether a new employee group is, or is not, in a

bargaining unit for the purpose of determining their salary and benefits.

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190. There is no dispute, though, that RT's are authorized under Medical Directives to

start certain kinds of medications immediately – a decision that the doctor reviews and according

to Ms. O’Reagan, routinely confirms.

191. Ms. O'Regan said that she has never worked with the PA, nor was she able to say

from her own experience how doctors and PAs interact with one another, or how "work" is

delegated or divided between them. She conceded that a PA might be able to call in an RT, but

she doubted that the doctor or a PA could do the work of an RT for technical reasons (because

they could not run the equipment); and in any event, they all work together in a multi-

professional team and the work is shared – especially in an emergency.

192. She could not say whether a PA could “order” her to do something; and it is

hypothetical whether a PA could, or ever would, “order” a paramedical employee to do

something that was not authorized by their scope of practice or a Medical Directive. Similarly, in

Ms. O'Regan's view, the word "veto" struck the wrong tone because the working relationships

are collegial, with each participant drawing upon and respecting the experience of the others.

193. Neither a doctor nor a PA needs to follow the recommendation of an RT who, in

turn (and unlike a PA) has no link to the physicians’ scope of practice; however Ms. O'Regan

agreed (based upon her knowledge of the jobs in the bargaining unit) that there is no single

bargaining unit person who does the range of things that the doctor (and implicitly a PA) would

do (in the case of the PA by delegation or via a Medical Directive) – such as ordering a wide

range of tests, reviewing the test results, assessing the patient at the bedside, adjusting

medication, doing discharge orders, constructing a comprehensive plan of care. Nor do

paramedical employees "handoff" the patient to the staff doctor as the PA does when s/he leaves

54

the workplace. Ms. O’Regan agreed that the PAs (derivative) scope of practice is broader than

that of the paramedical employees whose work is more narrow and specialized. Ms. O’Regan

also agreed that the PA, as the doctor’s delegate, could probably interrupt what a paramedical

employee was doing and tell him/her to stop until the treating doctor was consulted.

194. Quite clearly (and without belaboring the details) the RTs do not do things that PAs

do – like conveying a terminal diagnosis to family, or constructing plan of care – although the

RTs do have a degree of responsibility for treatment within their own area, and the RT's do have

Medical Directives that permit some independent initiative. Within that framework they can

make recommendations but those recommendations need not be followed.

Ernestina Alvarez-Weist – Advanced Practice Physiotherapist

195. Ernestina Alvarez-Weist is an Advanced Practice Physiotherapist (“APP”) and

clinical specialist, who has been a Professional Practice Coordinator since 2013. She has a

Bachelor of Science degree (which involved studying the biological sciences); she works under

the auspices of the Physiotherapy Act; and she is an accredited member of the College of

Physiotherapists of Ontario, which requires its registrants to have post-secondary education and a

multitude of skills that are tested by examination.

196. According to a Hospital document describing Ms. Alvarez-Weist’s role, its purpose

is to allow surgeons to see more patients and to spend a greater percentage of their time in

operating rooms - reducing their work in outpatient clinics (by relying more on the Advanced

Practice Physiotherapist). The Advance Practice Physiotherapist conducts post-operative reviews

of patients who have undergone uncomplicated hip or knee surgeries and does triage referrals. So

as with the PAs, the APP helps to free up physicians to do other things.

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197. Physiotherapy is a branch of rehabilitative medicine aimed at helping patients

maintain recover or improve their physical abilities. They treat neuro muscular and

musculoskeletal problems, and aid in the treatment of cardiovascular and respiratory complaints

– which involves the treatment of pain, disease, or injury, by physical means. They can work in a

hospital or in the community as independent practitioners.

198. However, according to Ms. Alvarez-Weist the practice of physiotherapy is

evolving, so that it now extends to the diagnosis of physical dysfunctions - which in turn requires

the authority to order diagnostics (like x-rays or CAT scans). That is now becoming part the

regulatory regime and scope of practice under the legislation; but Ms. Alvarez-Weist can do

these things, in any event, because there is a Hospital “Medical” Directive that allows it.

199. Ms. Alvarez-Weist explained that there are subspecialties within her profession;

there are evaluation processes and specialty certification; and that there is a professional

association (the Canadian Physiotherapists Association) which works with the Regulatory

College to establish appropriate professional standards.

200. Persons in the profession now tend to be quite highly educated. Ms. Alvarez-Weist

noted that in a recent Hospital job posting for an Advanced Practice Physiotherapist (“APP”) the

Employer was looking for someone with a Bachelor or Masters’ degree in physiotherapy, or a

Masters’ degree with a focus on orthopedics and research, five years of orthopedic experience

with patients, demonstrated knowledge and leadership abilities - that is, someone who could

cope with the expanding responsibilities of the profession and work under Medical Directives, in

an advanced scope of practice, that was beyond the normal range of lower level physiotherapists.

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201. One of those Medical Directives notes that the APP will be able to review and

interpret a patient's x-rays, to determine normal versus abnormal findings, to communicate any

abnormal findings back to the orthopedic surgeon, and consult for outpatient physiotherapy on

behalf of the surgeon. Similarly, the APP is expected to a perform preoperative assessment on

behalf of the surgeon and to determine the course of action based upon that assessment, using

specific tools that are used by surgeons and that are based on the surgeons’ usual course of action

– that is, for this purpose, they stand in the shoes of the surgeon, to some extent, and do what the

surgeon might otherwise have to do on his own. The APP is also expected to do clinical visits to

assess the surgical wound and the progress of healing, and to determine the course of action –

which could include the removal of staples or the trimming of sutures.

202. When s/he is doing preoperative and postoperative assessments the Advanced

Practice Physiotherapist has to review the patient's history, perform physical examinations, use

diagnostic tools like x-rays, (which they can order themselves without a doctor’s sign off) and

then prepare a plan of ongoing therapy or treatment. They do not attend the surgery itself; but

they do help manage the consequences and participate in post-operative treatment.

203. They report to, and work with surgeons - helping to plan how best to meet the

particular needs of the patients, and to facilitate whatever postoperative treatment might be

required. They discuss these matters with the patient and with the doctors, and while the APP’s

recommendations need not be accepted by him/her, they normally are; and they are sent to the

patient's GP who is also involved in the outpatient follow-up. There is no reason to believe that

the surgeon-APP relationship is any less collegial than all of the others that were canvassed in

the course of the hearing – even if it is not as “symbiotic” as that of a PA

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204. The objective of the APP is post-operative rehabilitation to heal whatever has been

injured or restore normal functioning. Physiotherapy can ameliorate such deficits (including

alleviating pain); and insofar as the outpatient roles is concerned, the APP communicates on

behalf of the surgeon, just as she can do follow-ups on his/her behalf.

205. According to Ms Alvarez-Weist, she works with doctors and residents and other

paramedical employees, and that because of her Medical Directives she can initiate tests of

various kinds (haematology, radiological, ultrasounds). She did not think that the person

performing those tests could refuse her requests – but it has never actually been an issue. Her

Medical Directives include a list of things that she can do; and with those delegations in hand,

she conducts her practice in cooperation with the doctors with whom she is working.

206. The pecking order was much referred to in evidence, but the answer was always the

same: the employees are health care professionals and they are expected to conduct themselves is

a professional and collegial way. And in the end, the doctors’ direction prevails unless it is

contrary to some regulatory requirement.

207. Ms. Alvarez-Weist said that there are in-house tools that are used by the surgeons

to assess her own competence – without which she could not hold her position at the hospital.

However, since she also has an independent status as a health care practitioner, with a statutory

scope of practice, and she said that she could also work in the community (which a PA cannot).

She identifies the need for drugs but is it is the doctor who prescribes them (she said that she

could prescribe analgesics on her own but has never done so); and because the patient is

returning to the community she and the social workers work together to smooth that return.

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208. Alvarez-Weist also has a number of administrative responsibilities, working with

the "manager" to discuss and develop treatments, to provide education, and to deal with

professional practice issues; moreover in that capacity (a job that was formerly called the "senior

physiotherapist") she delegates work to others and supervises rehabilitation personnel. She is not

a member of management but does play a “lead” role in her professional group.

209. Ms. Alvarez-Weist agreed in cross-examination that it is a doctor that brings her

into the picture in the first place and that defines what is needed; and that the scope of her

practice is confined to the statutory parameters unless augmented by the Medical Directives

which permit her to do particular controlled acts. But since she and the doctors work together,

under the same roof, in continuous cooperation, the metaphor of the doctor “opening the door”

into the circle of care, is a bit artificial. It is not as if surgeons can easily go anywhere else and

the Medical Directives mentioned above, specifically contemplate cooperation with surgeons.

210. Ms. Alvarez-Weist provides hands-on treatment of various kinds in response to the

infirmities caused by whatever maladies bring the patient within the scope of her expertise. But

she agreed that it is the treating physician who is most responsible for the patient and who can

undertake an independent assessment of the diagnostics which may trigger a response on his part

or prompt him to send the patient somewhere else. The doctor is also the one who is primarily

responsible for addressing the underlying medical causes of the patient’s condition, and if there

are oddities or abnormalities, it is the doctor who must ultimately decide what to do about them.

If she, herself, detects something beyond the scope of her practice (like something she sees on an

X-ray) she goes back to the doctor to discuss the matter and decide what to do next. The doctor is

responsible for the total care of the patient and the Physiotherapist neither trespasses on that

terrain nor would countermand a doctor's direction.

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211. Ms. She said that her duties overlap with those of nurses, but by and large, her work

is confined to her own area. Ms. Alvarez-Weist has not worked with PAs and has no direct

knowledge of their role. Nor can she do things like "running a code blue”, writing a DNR notice,

or conveying a "terminal illness" to the family – as opposed to postoperative regimen that the

patient is expected to adhere to and which Ms. Alvarez-Weist arranging for.

212. She has no “contract” with a particular doctor – although she necessarily works

routinely with selected doctors or residents because of the nature of their practice and her own.

Paul Aboueid – Respiratory Technologist and “Anaesthesiology Assistant”.

213. Paul Aboueid is an Anesthesiology Assistant (“AA”). The College of Respiratory

Therapists of Ontario (CRTO) describes the role of an AA as follows:

Generally, AAs assist anesthesiologists in the provision of anesthetic

care. AAs provide conscious sedation in consultation with the

supervising anesthetist and can relieve an anaesthetist, caring for an

uncomplicated stable patient during routine surgery for short periods…

The AA participates in preoperative assessment, anesthetic care planning,

pre-anesthetic preparation of the patient, anesthetic induction, monitoring

and emergence, and postoperative anesthetic care. They insert and

remove lines, apply and discontinue monitors, intubate and extubate,

administer drugs, monitor patients (including procuring lab samples) and

interpret vital signs and tests, support vital functions, recognize problems,

initiate resuscitation measures and maintain equipment….to perform

these activities they may require considerable knowledge and skill and

clinical judgment.

214. Mr. Aboueid was initially trained as a Respiratory Therapist (with a post-secondary

education like that of Ms. O'Regan) but he later took advanced training to become an AA – a

new position that was developed in consultation with doctors. Mr. Aboueid testified that in order

to become an AA, one has to be either an RT or a Registered Nurse with two years of critical

care experience. His own educational upgrade involved many weeks of classroom and clinical

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training - including working side-by-side with anesthesiologists doing different kinds of

surgeries, using different kinds of chemical agents. There are formal training programs for AAs

at Algonquin College and at the Michener Institute in Toronto.

215. Mr. Aboueid testified that as an AA he works on a rotating basis in different

operating rooms at the hospital, where he encounters a range of patients with many kinds of

vulnerabilities. He does not specialize in any type of surgery. He does what the CRTO profile

provides for: he administers drugs or gasses, starts IVs and lines, and works closely with the

doctors, providing another set of hands for the work that has to be done. In the Riverside

location, for example, there are four operating rooms and five Anesthesiology Assistants, who

work with patients and with a number of doctors who work in these operating theatres.

216. AAs take histories, respond to issues like an erratic heart rate, watch for

complications, do sedation or nerve blocks and generally do a lot of the hands-on work, working

side-by-side with the doctor. For example, Mr. Aboueid said that it is AA or the medical

residents who put in the lines – not the nurses; and that the AAs administer medication of various

kinds including blood pressure drugs. They do not introduce a general anesthetic without the

doctor being present, but they can use other agents (under their own scope of practice) and (he

said) they can “delegate” things to nurses. There was no evidence about how that works.

217. Mr. Aboueid explained that administering medication is a controlled act and that

while he can do a local anesthetic on his own, a doctor must be present for the general (which is

more dangerous). He said that he needs a doctor’s delegation to do spinals, central lines or

epidurals (the doctor authorizes such actions and he performs them with the doctor present), but

that he can carry on, on his own, if the doctor is called way to deal with some pressing matter in

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some other area of the hospital. The AA is responsible for the patient during that interlude, but

he would discuss the situation both before the doctor’s departure and after his return. The AA

also carries out various checks and reversals before the patient is sent off to the recovery room.

218. Mr. Aboueid said that in the course of his work there are lots of possible

complications, which have to be responded to immediately to avoid injury to the patient (like

brain damage) and that the medications that he works with can be quite dangerous. He thought

that he would be able to call for outside help (like a code) or deal with emergency situations on

his own, but he noted that there were a number of professionals in the operating room with him,

including the surgeon, registered nurses and medical residents. Surgery is a team exercise and the

most experienced and responsible person would likely take over in an emergency.

219. Mr. Aboueid testified that patient vulnerabilities are identified prior to the surgery

and that he works with all levels of risk. There are lots of preoperative tests (bloodwork,

cardiology, allergy tests) that predict patient stress, but that is the doctor’s bailiwick and the

doctor’s views on such matters will always prevail. As with so many other paramedical

employees (and the PAs) the AA has a Medical Directive which authorizes what controlled acts

he can do and what medications he can access (with, or without, formal authorization or

delegation). And as with other paramedical employees, the Medical Directive relieves the doctor

of the need for individualized authorizations and facilitates treatment techniques with which the

paramedical employees are familiar. RTs can give some drugs in an emergency situation.

220. Mr. Aboueid said that if the patient's needs are beyond what is envisaged in the

Medical Directive, the matter is discussed with the doctor - otherwise he follows the Medical

Directive; and that if there is a problem, then the doctor becomes involved. The Medical

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Directive simply relieves the AA of the need for immediate physician involvement and

papweork; and according to Mr. Aboueid, if the doctor trusts the AAs judgment, then he may

simply tell him to carry on. The doctor need not step in to do the procedure himself.

221. Mr. Aboueid said that he works with “learners” of various kinds, including nursing

and medical students and medical residents, because he has developed considerable proficiency

in his own professional niche; and that these learners do some kinds of work under his license

and supervision. And since Mr. Aboueid is also an RT, he may be involved if there are airway

problems that require attention or intubation.

222. Mr. Aboueid said that spinal and epidural and central lines can be done without the

doctor being there and that other hospitals do this; although for present purposes, I do not think

that I have to dissect the precise lines of authority, nor plumb the Regulatory College controversy

about whether Acute Care Nurse Practitioners can “write orders” authorizing RT's to do

controlled acts. It suffices to say that Mr. Aboueid is a paramedical employee with an extended

scope of practice, who has been given responsibility under Medical Directives to do what needs

to be done, and that those Medical Directives make it easier for the doctors to do their job

without cumbersome authorizations.

223. Mr. Aboueid testified that the AA is a relatively new classification (dating only

from about 2006) and that his relationship with doctors varies with their comfort level. Some

doctors are inclined to delegate while others are not; but he remains liable for errors under his

own license, which is why he carries his own insurance (there is Hospital insurance as well).

224. Since he was also an RT, Mr. Aboueid noted that there are subcategories within the

RT specialty and some of the RT's have administrative responsibilities; however the primary role

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of the RT is described by the hospital this way: the RT is (according to a Hospital document) “a

crucial member …and integral and valuable part of the operating room surgical team… [who]

monitors patients during general anesthesia, regional anesthesia or conscious sedation through

medical directives …while being under the supervision or close availability of the staff

anesthesiologists” (which is consistent with Mr. Abouid’s testimony that he can continue to

work on his own when doctors are called out of the operating room). And while the job title

refers to “Assistants” it is clear that there are important functions that Mr. Aboueid does on his

own (such as the insertion of devices and tubes and catheters, and central lines) – although

always subject to the doctors’ review and potential override.

225. The AA, works under his registration with the College of Respiratory Therapists of

Ontario registration; and it is interesting to note that the CRTO has a discussion paper that

describes the AA as a "physician extender" – a paramedical employee who takes on additional

responsibilities, which allows the anesthesiologists to be more productive, and a word that was

used in this proceeding to describe the role of the PAs as well.

226. Mr. Aboueid said that what he does is similar to that of medical resident, but that

there are differences too, because, being doctors, the medical residents may be able to do general

anesthetics on their own, while the AA needs specific delegation. Mr. Aboueid testified that

while he and a resident have overlapping knowledge and experience, they are not on the same

hierarchical level because the residents are doctors who can write orders on their own.

227. Mr. Aboueid agreed that the RT training is specifically focused on respiratory

matters and that it is different from that of a resident, and also that resident rotations are not the

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same as RT rotations. In this respect, he works in a professional silo (as presumably does an

anaesthesiologist – a medical specialty for the physicians).

228. Mr. Aboueid also agreed that there is no direct “doctor-patient relationship”

between himself and the patient, and that any history or assessment that he does, is done on the

day of the surgery when he first becomes involved. He does not order testing for the purposes of

diagnosis, and by the time he comes into the picture the patient has already been seen and

assessed by doctors who may or may not choose to consult with others. The doctors do not

consult with the AA except in connection with the surgery itself. The AA is essentially a trained

surgical functionary working in the operating room. He is not a doctor.

229. It is also clear that the doctors are the ones most immediately and intimately

involved with the way in which the surgery unfolds – which is why the Medical Directives

contemplate consultation and the doctor must be there to get certain things started. Mr. Abouid

said that surgery - including calls for help - is team effort and in practice the person with the

most experience or responsibility (normally the doctor) takes over.

230. There are lots of things that PAs or doctors do, that AAs do not do – although it is

not clear whether PAs are attached to surgeons or anaesthesiologists, so the comparison is

uncertain. However, Mr. Mr. Abouid conceded that he would not discuss or authorize a DNR

direction, he does not attend rounds, he does not do pre-op consultations or pre-op directions,

and he doesn't prescribe fluids for blood pressure issues, or order up imaging, or do any actual

surgery to open an airway. So, for example, I do not know if an anaesthesiologist writes DNRs.

231. Moreover the relationship between the surgeon and the anesthesiologist present (the

two doctors) may also shape the way in which things unfold in the operating room. Mr. Abouid

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also agreed that when he is called upon to act in a crisis, it takes the form of structured

algorithms that have been worked out in advance; so that he is implementing prescribed

protocols, in the nature of a decision tree. The AAs personal judgement is channeled by these

algorithms and if the patient is “crashing” it is the doctor or resident who steps in.

232. Mr. Abouid confirmed that an RN can do some of the work of an AA; but he said

that only AAs can run certain kinds of machines. The AA works pursuant to his existing scope of

(RT) practice, augmented by Medical Directives and delegation from the doctor. However, the

doctors are under no obligation to follow the recommendations of an RT or AA and outside of

the surgery itself the AA will not see patients. He has no role in treating an underlying disease

like cancer (although the anesthesiologists may not either, since they too are in a medical silo).

Nor do the AAs do discharge planning or write DNR directions or channel patients into teaching

or nonteaching streams – all of which, I am told, PAs can do.

233. Mr. Aboueid said that he is obliged to be a member of CRTO (which regulates the

profession, investigates and disciplines members, and dispense advice on practice issues). He is

also a member of the Canadian Society of Respiratory therapists – a private professional

association established. In this he is similar to other paramedical employees – and to PAs.

IX - Jen Cornick’s job and salary analysis

234. Jen Cornick is a human resources analyst who deals with job classification, wage

analysis and pay equity issues. Ms. Cornick testified that for the purpose of this proceeding, she

undertook an analysis of the PA position, based upon the (“CAPA”) Scope of Practice and

National Competency Profile (Exhibit 1), some information from Mr. Hackett, and a job

description that was put together after the filing of the present grievance.

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235. Mr. Hackett testified that this document does not accurately record his duties (recall

that the role of the PA is something of a "work in progress"); however, in Ms. Cornick's view,

these materials provided a sufficient basis for an analysis of the PA position, using a "pay equity

tool" that she customarily uses to do job comparisons for pay equity purposes. The objective of

this exercise was to examine the PAs job responsibilities in a systematic way, in order to see how

the PAs might “fit in” with, or be compared with, members of the paramedical bargaining unit.

236. Ms. Cornick said that this pay equity tool (a kind of checklist) was not in fact used

for bargaining unit positions because there was another, jointly-negotiated mechanism in place;

nor had the Union agreed that it would be used for job evaluation purposes or for establishing

pay bands (which for newcomers, she said, would be done instead under Article 26.01).

Nevertheless, in Ms. Cornick's opinion, the pay equity tool was a useful device “to shape her

thinking" about how the PAs duties should be looked at, in a general way, and regardless of

where in the hospital the PAs actually worked.

237. Ms. Cornick said that it informed her opinion about whether they were the “kind”

of employees who “belong”, or ought to be, in the “paramedical” bargaining unit – that is,

whether they were “like” these undoubtedly “paramedical” employees.

238. Ms. Cornick testified that she analyzed the PA's work, whom they interact with,

their accountability and reporting relationships, the consequences of any errors (i.e. patient risk),

their working conditions and the physical and mental effort expended in doing their jobs – all

factors that (she said) are used in a pay equity analysis and that are also recorded in bargaining

unit members’ job descriptions prepared by the Hospital. And in the end (like Dr. Krvacik) she

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concluded that the PAs were acting more like a doctor or a medical resident (i.e. persons whom

she regarded as “medical” personnel) rather than employees in the paramedical bargaining unit.

239. She also said that the PAs were paid roughly the same as what medical residents

were paid - or perhaps a little more.

240. In Ms. Cornick’s view (and in comparison with paramedical bargaining unit

members) the PAs could take more initiative in more medical or treatment areas, since they were

not confined to a specialized silo as so many of the paramedical employees are – even if, like the

Pharmacist or Psychologist (whom Ms. Cornick looked at for comparison purposes) the

paramedical employees were well educated and had considerable expertise in their own sphere

(e.g. the Psychologist can provide a diagnosis but cannot prescribe drugs; the Pharmacist has

expert knowledge of drug options and efficacy but cannot actually prescribe them).

241. By contrast, the PAs were not discipline-specific and they had a more varied role in

the plan of care and delivery of treatment - including doing diagnosis, consulting across

specialties with the authority of the doctor (again if delegated and with the doctor’s input); and

(she thought) they had the authority to accept or reject the input or recommendations of these

other paramedical specialists, in the same manner as a doctor.

242. In Ms. Cornick’s opinion, the PAs had a more active role in ordering up particular

diagnostics or directing the work of nurses (which was not how Mr. Hackett described his

relationship with nurses); they had considerable independence in respect of consultation,

coordination, and communication - including with patients and their families; they had a broader

and more direct relationship with the patients; and they had more scope for independent action

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(albeit always within the scope of the doctor’s practice and subject to his delegation and

supervision and ongoing input).

243. The PAs had, in Ms. Cornick’s opinion, more diverse decision-making

responsibilities, with the ability to seek advice and act on it - again like a medical resident;

although, she noted that medical residents did not have the same relationship with physicians or

patients because they are doctors themselves and were not restricted to the supervising doctor’s

scope of practice. They had independent powers (as members of the College of Physicians and

Surgeons) to prescribe or initiate action commensurate with their status as physicians; and they

participate in their own “form” of collective bargaining, in a multi-employer format.

244. Ms. Cornick did not produce any arithmetic evaluation for the PAs (i.e. a “point

score”). But she did testify that the PAs were "off the scale" in respect of their work

responsibilities. She agreed that some of the paramedical employees were quite highly educated,

but she said that the PAs had broader education rather than greater education.

245. Ms. Cornick conceded in cross-examination that it was quite difficult to evaluate

the specialist jobs in the bargaining unit in relation to one another, and that the duties of the PAs

and the paramedical employees overlap – just as (she said) was the case for doctors and nurses

and residents, whose duties also overlap. She also testified that the “silo people” can do work

that is within the doctor’s scope of practice (without having to be delegated); and that they have

to acquire a lot of general medical knowledge too, even though it is only applied in their

specialty. She also agreed that some of the paramedical employees can order up diagnostic

interventions like x-rays, MRIs, or kinds of testing, if their scope of practice allows it. However,

in her opinion, their diagnostic role was more limited and confined to their specialty.

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246. Ms. Cornick's testified that, in her opinion, the PAs work responsibilities would

produce a salary level beyond what was earned by anyone currently in the paramedical

bargaining unit (hence her “off the scale” comment) – which led her to the conclusion that they

were not the “kind” of employees who “should” be included in the bargaining unit, because they

were not “like” those other bargaining unit members.

247. However, there is no evidence that this “tool” has ever been used to decide whether

someone is, or is not, in the “bargaining unit” (i.e. to illuminate the meaning of the word

“paramedical” or determine the composition of the bargaining unit); there is no language in the

collective agreement which supports that proposition; there is no legal or other “rule” to the

effect that the pay rate determines bargaining unit placement (which is about the right to

participate in the bargaining process with other employees - not the result of bargaining in

particular instances); Article 26.01 does not dictate where a newcomer will be placed in the

salary hierarchy nor foreclose being placed at the top; there is a huge salary range within the

paramedical bargaining unit already; and in fact, this objective and analytical approach was not

actually used by the Hospital for the purpose of deciding what the PAs would be paid.

248. Ms. Cornick testified that there are "paramedical" employees who earn more than

the PAs do (and thus, if she is right about the residents’ salaries, there are “paramedical” union

members who are also paid more than some “medical” residents); and that when the Hospital

was setting the PA salaries, there was no analysis of their comparative worth in relation to the

other members of the health care team – whether in the bargaining unit or excluded from it.

249. On the contrary (according to Ms. Cornick) the PA salary was suggested by Health

Force Ontario (which I gather is some government entity that has funding responsibilities) and

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that is the salary that was offered to the incoming PAs; because, according to Ms. Cornish, the

Hospital did not want to dip into its own pocket to pay them more. The PAs value to the

organization, their clinical contribution to patient care, and their comparative worth in relation to

other health care professionals, had nothing to do with it.

250. So, interesting as this discourse may be, it has not been used in the collective

bargaining process, or for bargaining unit placement purposes, and it was not actually used in

determining the PAs salary either.

251. What this evidence does show is that the PAs may be “underpaid” if their

coworkers in the paramedical bargaining unit are used as a bench mark for objective comparison;

and also that a medical resident (a “medical” doctor, doing “medical” duties, within the scope of

his/her “medical” practice, and with the ability to initiate independent “medical” treatment) may

be paid less than some mere “paramedical” employees - despite the fact that the residents also

engage in their own form of collective bargaining.

252. It shows that whatever the alleged distinction between “medical” duties and (mere)

“paramedical” duties may be, it does not translate, axiomatically, into a higher salary: for union

members, a collectively bargained outcome.

253. Moreover the fact that Ms. Cornick can use a standard job analysis tool to project a

salary level in this way shows that the PAs can be treated just like paramedical employees for

compensation purposes. The PAs simply deploy a different mix of science-based skills and have

different responsibilities – which are markedly different from those of the office & clerical

employees or blue collar employees in another main bargaining unit (employees who are not

involved in health care or treatment as the paramedical employees are and the PAs are).

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X - Some general observations about the PA versus Paramedical comparison

254. It is clear from the foregoing that in terms of their work, the paramedical employees

who gave evidence are quite different from one another and they are also quite different from the

PAs. None of them do the same work as the PAs do, and none of them do the same work as their

paramedical coworkers do; so that at this “micro level”, work-wise, they are hard to compare

with one another – or with the PAs for that matter.

255. The evidence also shows that the PAs have more diverse responsibilities over

broader treatment areas than the paramedical employees do – even if the PAs are not paid as

much for what they contribute. That was confirmed by Mr. Cornick’s analysis.

256. However, if one shifts the focus a little, stepping back, and taking a more “macro

view”, then there are a number of obvious similarities and points of comparison.

257. The paramedical witnesses all have post-secondary education in the biological and

health sciences, and that academic training is necessary to qualify for their particular role in the

treatment process. The same is now true for PAs like Ms. Papineau, who has had considerable

academic success. In this respect, the PAs and the paramedical employees are all “knowledge

workers” and that knowledge is rooted in the medical and biological sciences – as it is for the

doctors with whom they work. They are not like the service employees or the clerical or

administrative staff of the hospital who are in their own bargaining unit.

258. The paramedical witnesses are not doctors or nurses but they were all members of

recognized “health care professions” which allow for a degree of independent action and

professional responsibility – which in some cases permits them to engage in an independent

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practice in the community. They are all recognized “health care professionals”, who not only

have membership in a “Regulatory College” but are also typically members of outside

professional associations that reflect their area of interest. They are not just “employees”.

259. But in my view, the PAs are “health care professionals” too – even though their role

is derivative and the PAs have not yet moved as far along the road to “professionalization” as

some of the health care professionals in the paramedical bargaining unit have done.

260. It is true that the PAs currently have no statutorily-certified expertise or scope of

practice pursuant to the HRPA or any other specialized legislation. The PAs are not, and cannot

be, independent practitioners. But there is no doubt (in my view) that they are an emerging and

recognizable professional group - hence the existence of College programs to teach students how

to become a PA and the accepted CAPA National Competence Profile. The PAs have the

trappings of professional status, even though they currently lack statutory recognition.

261. Accordingly, I think that the PAs and the paramedical witnesses are both fairly

described as health care professionals – even though the HPRAC decided that no formal

regulation was required for PAs because of the degree of supervision by the physicians.

262. Similarly, while the “work” of the paramedical employees is diverse, but it is

ultimately derived from the treatment needs of the patients and allocated under the aegis of

doctors, who are most immediately responsible for patient care. What the paramedical employees

“do” depends to a significant extent upon what those doctors need and refer – doctors with whom

the paramedical employees work, with varying degrees of continuity trust or independence,

depending on their experience and their relationship. And neither the origin of that work or its

nature is similar to the work done by service or administrative employees.

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263. In this respect the paramedical employees are also professional health care

auxiliaries, doing things that assist the doctors, or instead of the doctors, but almost always

subject to the doctors’ professional judgement and prescription.

264. But the paramedical employees work with and for doctors too – taking directions

and shaping their response to the needs of the patient as interpreted, ultimately, by doctors.

265. The “role” of the PAs and the paramedical employees are both subordinate to that

of the doctors – even though the PAs and the paramedical witnesses both provide their own

direct “hands on” treatment for the patient. But it is the doctors who the most direct “legal”

relationship to the patient and the most responsibility for patient care (although it would not be

surprising if a physiotherapist, for example, spent lots of hours interacting with the patient).

266. The paramedical employees may have some statutory independence, certification

and authorization to do particular treatment functions and the PAs do not, but in both cases their

role is derivative in this sense. They are professions that are organized around and subordinate to

the medical profession. And because the paramedical employees work in silos, they have a direct

and continuous relationship with a particular sub-set of doctors – a relationship which all the

evidence shows is cooperative and collegial, just like that of the PAs.

267. In the result, there are some general observations that apply to the paramedical

employees and the PAs alike – although the PAs have a closer and more continuous and

intimate and symbiotic relationship with “their doctors” than the paramedical employees have

with theirs, and the PAs have more, and broader, responsibilities for patient care. The PAs work

“hand in glove” with the doctors in a way that is different from that of the paramedical

employees from whom I heard evidence, even though latter work closely with doctors too.

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268. However in my view, these are matters of degree, not kind; and they arises because

everything that the PAs do is delegated and they have no independent professional authority to

do anything other than what the doctor directs or delegates or authorizes them to do.

269. And of course, none of this has anything much to do with employment law or

collective bargaining - which is one way in which terms and conditions of employment come to

attached to groups of employees. And the fact is: the actual terms and conditions of employment

for the PAs are broadly similar to those of paramedical employees, even though the latter are

negotiated, while the terms of the PAs are imposed more or less unilaterally by the Employer.

270. Moreover, in both cases the PA employees are (for many employment matters)

being treated as part of a group - just as the paramedical employees are being treated as part of a

group for employment law purposes (in their case, a “bargaining unit”).

271. For despite having many different and very responsible work functions, the PAs

salary and benefits are broadly similar to those of the paramedical employees. That is why Ms.

Cornick had no difficulty matching the PA’s job duties with salary outcomes based upon a

comparison with the paramedical group (although she was discomfited by the result).

272. The PAs are not like doctor-consultants who work on a fee-for-service basis, nor

are they like medical residents whose terms of employment are intertwined with their role in an

ongoing university education program (which is reflected in the multi-employer bargaining in

which the residents are engaged).

273. The PAs are just “employees” whose terms of employment resemble, in broad

outline, those of their paramedical coworkers – who may get paid more than the PAs do.

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XI - The Position of the Parties restated

UNION ARGUMENT

274. The Union contends that the word “paramedical” in Article 1.02 has to be

interpreted in light of what might be described as its utilitarian “collective bargaining meaning” –

a meaning that (according to the Union) is informed by the way in which the word

“paramedical” has been used in the labour relations world to describe this particular kind of

bargaining unit (especially by the OLRB when it creates such units), and by the way in which the

parties themselves have grouped together so many different kinds of health care professionals,

for bargaining purposes, in the “paramedical” unit.

275. In the result, according to the Union, the word “paramedical” refers to an eclectic

grouping of professional, scientific and technically-trained health care employees who provide

medical services for patients, but who are not doctors or nurses. And in the Union’s view, that

word - “paramedical” - reasonably describes the newly hired PAs.

276. The Union argues that its proposed interpretation is consistent with the normal

“rules of interpretation” and with dictionary definitions of the word “paramedical”; but more

importantly, it reflects the normal composition of this particular kind of hospital bargaining unit

as well as the particular example of it found at Ottawa Hospital.

277. So while it is true that the disputed PA job did not exist when the paramedical

bargaining unit was initially constructed, the Union submits that the word “paramedical”

nevertheless embraces these newcomers – who (according to the Union) are broadly similar to

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other “professional” and technical employees who are grouped together in the “paramedical”

bargaining unit, for collective bargaining purposes.

278. The Union argues that in a general way and from a collective bargaining

perspective, the PAs are like those other “paramedical” employees. Moreover, I have put the

words “in a general way” in italics because, in the Union’s submission, that is all that is required,

given the nature of this particular kind of bargaining unit - which reflects great diversity around a

common theme. And that common theme (says the Union) is that it covers scientifically,

technically, and professionally trained health care providers who are not doctors or nurses.

279. In the Union’s submission, that is what is meant by the term “paramedical”; and it

distinguishes this broad swath of employees, from other employees, who are found in other kinds

of bargaining units at the Hospital. And from nurses who have their own unit.

280. The Union notes that this kind of “generic” bargaining unit has been a feature of

Ottawa Hospital’s collective bargaining environment for many years; and, in the Union’s

submission, the general nature of that unit (science-based and very inclusive) points towards the

inclusion of the newcomers as well. Indeed, the Union claims that the emergence of a new kind

“paramedical” classification (who is not a doctor or a nurse) is precisely what the word

“paramedical” was designed to capture, and what Article 26.01 of the Paramedical Collective

Agreement specifically contemplates will happen from time to time.

281. The PAs are not managerial employees or otherwise statutorily excluded from

engaging in collective bargaining; they are not blue collar “service” workers or office and

clerical employees; and they are not nurses. Accordingly, in the Union’s submission the

scientifically trained PAs fall naturally (i.e. as a matter of interpretation) into the “paramedical

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group”, where there are other health care professionals, broadly like themselves. That is where

their community of interest lies for collective bargaining purposes; and in the Union’s

submission, the placement of the PAs in the “paramedical” bargaining unit (i.e. concluding that

they truly are “paramedical” employees) is supported by both what the PA’s are and what they

are not. The existing bargaining structure points to their placement in the paramedical unit.

282. Insofar as the collective bargaining meaning of the word “paramedical” is

concerned, the Union urges me to adopt the following interpretation found in U.N.A. v. Calgary

Regional Health Authority et. al. [1999] Alta.L.R.B.R. 458 - where the Alberta Labour Relations

Board described the ambit of the word “paramedical” this way (emphasis added):

The word “paramedical” literally means “almost medical” or close to

medical, and in its broadest meaning encompasses anyone performing

medical functions under the direction, supervision or authority of a

physician. The word “professional” connotes advanced training,

licensure, formal standards of practice and occupational self-government,

all in varying degrees. The core idea of the paramedical professional

[bargaining] unit then, is to recognize the community of interest of

employees subordinate to the physician who perform medical functions

and are organized to a significant degree according to a professional

model.

283. The Union notes that this interpretation of the term “paramedical” is much the

same as the one enunciated by the OLRB, twenty years earlier, in Stratford General Hospital Re

Stratford General Hospital and Ontario Public Service Employees and Allied Health

Professionals et al [1976] OLRB Rep. September 459 (see below); and in the Union’s

submission, both cases illustrate the commonly understood meaning of the word “paramedical” -

which is used in a generic sense to describe a particular kind of bargaining unit that is found in

public hospitals. That is the way that hospitals have been subdivided from bargaining purposes.

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284. The Union acknowledges that the work of the PAs is not the same as that of the

other health care professionals who are already in the paramedical bargaining unit. However, in

the Union's view, the fact that PAs have different duties is not determinative – not least because

those other paramedical employees are all so different from each other.

285. The Union points out that the paramedical bargaining unit includes a hodgepodge

of quite different health professionals who are all lumped together for bargaining purposes;

moreover, as the Union sees it, the newcomers are not so different from these other health care

employees as to be a different “kind” of employee altogether – a “medical employee” rather than

a “paramedical” one (which is what the Employer asserts – see below).

286. In the Union’s submission there is no contractual foundation for the “medical”

versus “paramedical” distinction asserted by the Employer; nor is there any evidence that the

word “medical” (as opposed to the word “paramedical”) has that collective bargaining meaning

in Ontario, when it is used in connection with bargaining unit descriptions or bargaining unit

composition. Or that the parties themselves have made that distinction in their own local

relationship. In the Union’s submission, the labour relations term for medical caregivers who are

not doctors or nurses is the word “paramedical” – which is the word that is found in Article 1.02.

287. In the Union’s submission, the PAs in this case are, generically, “paramedical”

employees, regardless of the particular mix of duties that are delegated to them by their doctor or

by Medical Directives from the Hospital; and that is so, (according to the Union) even if they

perform what might be fairly described as “medical functions” that might also be done by a

doctor or by a medical resident. The PAs are the “kind” of professional employee described in

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Calgary Regional Health Authority and Stratford General Hospital as “paramedical” for

collective bargaining purposes. And that is the “definition” that the Union urges I accept.

288. In the Union’s submission, providing treatment or health care or performing what

might be described as “medical functions” does not turn the PA into a doctor or a “medical”

employee, for bargaining unit purposes. They are not some different “creature”, with a wildly

different community of interest, who must bargain on their own, in their own little island,

separate and apart from all of their professional colleagues. That is the very antithesis of what the

comprehensive “paramedical” bargaining unit was designed to achieve; and that is why Article

26.01 envisages that new classifications will be rolled in to the existing salary structure.

289. In the Union's submission, the newcomers are clearly "employees" of the Hospital

(which is not disputed); they are not employees of the doctors for whom they work; and their

actual terms of the employment (i.e. what collective bargaining is about) are not substantially

different from those of other professional employees who are in the paramedical bargaining unit.

For example they have a standard 37 ½ hours per week work schedule, they have a normal kind

of probation period, they have vacations just like other “employees”, they have group benefits;

and so on. Moreover, their agreement with "the doctors" (as described in a Hospital Letter on

Hospital Letterhead) makes it perfectly clear that while the Physician Assistants work with

individual doctors and take instructions from them, they are “employees” of the Hospital.

290. The Union acknowledges that the PA’s arrangement with “their doctors” is a

personal one with a strong element of trust, and that their work is shaped by what the doctor

wants them to do and by what the Hospital’s Medical Protocols permit. But as the Union sees it,

there are other “paramedical” employees who also have to adhere to hospital protocols and who

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must (generally speaking), follow the doctors’ instructions and can do things by delegation;

moreover, many of those paramedical employees must also maintain, as a condition of

employment, a registered professional status that is statutorily prescribed and regulated.

291. The Union argues that there is nothing unusual about having a supplementary

regimen that paramedical employees have to follow, despite also being covered by a collective

agreement; and in the Union’s submission, there is no incompatibility between the professional

responsibilities or a personal commitment to a doctor, on the one hand, and engaging in

collective bargaining as part of the paramedical bargaining unit on the other.

292. Thus (so the Unions says), the personal work arrangements with the doctors or their

departments do not prevent the PAs salaries and benefits – their terms of employment - from

being established by collective bargaining (which is what a “bargaining” unit is for) any more

than it prescribes what their benefits or vacation entitlements will be. The “contract” with the

doctors does not touch these things. Nor does the nature of that work relationship with the

doctors mean that the PAs are no longer “paramedical” employees of the Hospital.

293. The Union says that it is the employment relationship with the Employer that

matters here; and that it is the Employer that sets the salary and other bargain-able conditions of

employment whether the bargaining process is “individual” or “collective”. And collective

bargaining for professional health care providers who are not nurses (or doctors or medical

residents) is conducted under the umbrella of the “paramedical” bargaining unit.

294. In the Union’s submission, it would create no anomaly if the PAs’ terms of

employment were negotiated collectively, in conjunction with other professionally trained health

care providers who populate the paramedical bargaining unit – rather than, as in the present case,

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being prescribed more or less unilaterally by the Employer. The consequence of the Union’s

proposed interpretation is merely that the PAs will be treated like other health care professionals

whom the Union already represents, and who, the Union says, the PAs generally resemble.

295. The Union notes that the newcomers are not covered by the Regulated Health

Professions Act. They have no scope statutorily-rooted scope of practice or professional

responsibilities. Their work is completely dependent upon what their doctor tells them to do and

what their doctor delegates. They are not independent health care professionals or members of

the College of Physicians and Surgeons or medical practitioners under the Medicine Act.

296. However, in the Union’s submission, the fact that they may perform “medical

functions” hardly removes them from the “paramedical” employee category for collective

bargaining unit purposes. On the contrary, their subordination to the doctor is similar to that of

other paramedical employees; and it is that subordination and lack of true medical credentials

that reinforces their characterisation as “paramedical” employee.

297. Similarly (according to the Union) being authorized or directed by a doctor to do

something is no sign that the individual is not a paramedical employee; nor is that conclusion

different simply because an individual has established trust and has therefore been allowed to

work autonomously or with minimal direction. That is just a facet of professional status, which is

shared by many paramedical employees - who are ultimately obliged to do what the doctor

expects them to do, unless it collides with a regulatory limitation or hospital protocol.

298. In the Union's submission it does not matter that many of these other paramedical

employees are quite specialized or work in silos, because, with authorization (similar to what the

PAs need for everything that they do) bargaining unit members can work outside their silo too;

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moreover, the PAs can also have a specialized focus depending on the medical specialty or scope

of practice of the doctors for whom they work (e.g. Ms. Papineau who works in the orthopaedic -

spinal area, doing different things than Mr. Hackett would do). However, in the Union’s

submission, they are still part of the “paramedical” group - just like so many of the other

“employees”, with quite differing skills, whom everyone agrees are “paramedical” employees.

299. In the Union's submission, the Physician Assistants’ education (currently four years

of post-secondary education supplemented by didactic and clinical experience) is likewise not so

different from that of many other paramedical employees - especially those at the top of the

“paramedical ladder”. Counsel points out that a Physiotherapist, for example, can now have a

four-year undergraduate degree plus an additional two year Master’s Degree. The Psychologist

who gave evidence has a PhD. Many of the paramedical employees have advanced educational

credentials of one kind or another, and many of them have had to study the biological sciences in

order to qualify for membership and certification in their professional groups – just like the PAs.

300. The Union does not dispute that the PAs are highly trained and that once they are

experienced and trusted, they will operate with a considerable degree of autonomy. Nor does the

Union assert that other paramedical employees do what PAs do - or vice versa.

301. However, as the Union sees it, those are just badges of “professionalism” and

specialization, which are shared by many paramedical employees with post-secondary education

in the health sciences; and to the extent that the newcomers have this kind of educational

background and autonomy it points to inclusion in the “paramedical” group rather than the

reverse. It shows that the PAs are like their well-educated paramedical coworkers.

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302. The Union acknowledges, and the Employer emphasizes, the extent to which the

PAs do controlled medical acts (by delegation). However, according to the Union, regulated

health professionals also do controlled medical acts (as the regulations in the Regulated Health

Professions Act seems to recognize), just like the PAs. The PAs are not unique in this regard; and

the PAs do not have full independence (let alone statutory authority) since they are always doing

things by delegation. There are other paramedical employees who do controlled acts too, and

whose prescribed scope of practice is supplemented by Hospital “Medical” Directives – which

the PAs also require, unless there is a specific delegation from their doctor.

303. In the Union’s submission, these differing work and professional responsibilities

are not critical distinctions for collective bargaining purposes – the purposive focus that the

Union urges me to keep in mind when I am interpreting words in a “bargaining unit” definition.

304. More important (the Union says) is that all of the PAs (and many paramedical

employees as well) work around, or in respect of, the diagnostic and treatment regimen provided

for a patient and ultimately overseen by a doctor – a doctor who may or may not be an employee

of the Hospital himself/herself.

305. The “paramedical” employees comprise a collection of separate occupations that

are organized around and subordinate to the medical profession (just like the PAs are); they

provide diagnostic services and treatment for patients; and they are customarily grouped together

in a single large “paramedical” unit for collective bargaining purposes. This is a description that,

the Union says, applies, equally, and quite naturally, to the newcomers.

306. The Union reiterates that this is what Labour Relations Boards “meant” by the word

“paramedical” when they create such paramedical bargaining units; and in the Union’s

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submission, an arbitrator should not disregard the themes that underlie the OLRB’s handiwork,

or adopt an interpretation that could lead to a small island of collective bargaining (here only a

handful of employees) just because the newcomers are “different” in some ways from existing

bargaining unit members. The differences are not so profound that PAs are no longer

“paramedical” employees.

307. The Union does not concede that the disputed individuals are just like “medical

residents” - who are different from the Physician Assistants in a number of ways, including their

professional objectives and status, and of course the important fact that they are medical doctors

in training, who have their own multiemployer bargaining arrangements. However, even if the

disputed individuals are similar to “residents” work-wise the Union argues that this points to their

being classified as “paramedical” employees as that term is understood for collective bargaining

purposes. Because the PAs are not residents. Nor does anyone suggest that PAs are part of the

residents’ collective bargaining regime.

308. The Union points out that nurses are also involved in medical care; they work very

closely with doctors (with whom their role overlaps); and in recent years, the nursing profession

has spawned a new category of advance practice nurses, called “nurse practitioners”, who have

additional education and accreditation, which allows them to do things that might otherwise be

done, or once might have been, done by a doctor. They are thus in positions that are notionally

“above” other nurses’ bargaining unit members. They are in a higher professional tier.

309. However, arbitrators have ruled that they are still “nurses” for collective bargaining

purposes and they remain part of the nurses bargaining unit.

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310. Having extra duties that might once have been done by doctors, doesn’t alter the

fact that such employees are still in the nurses’ bargaining unit for the purpose of establishing

salary and benefits.

311. The Union submits that the PAs should be looked at in much the same way. They

remain “paramedical” employees even though their patient care responsibilities are different

than, and perhaps broader than, other employees in the paramedical bargaining unit. And while

their role may be more (objectively) critical or highly valued, those important and diverse

responsibilities do not make the incumbents any less “paramedical”.

312. In summary then, the Union argues that when the word “paramedical” is read

literally and in this collective bargaining context, it applies - and was meant to apply - to

employees "like" the physicians’ assistants. The disputed individuals are “paramedical

employees” who fall within the scope of Article 1.02.

313. In support of these propositions the Union referred me to a number of cases and

materials which, I have listed in Appendix to this Award. It is conceded that none of the cases

involve PAs, who are relative newcomers in the health care system.

EMPLOYER ARGUMENT

314. The Hospital concedes that the Physician Assistants are "employees" of the

Hospital; and the Employer does not take the position that they are statutorily excluded from

engaging in collective bargaining (i.e. that they have no right to collective bargaining at all,

under the OLRA, as is the case with doctors).

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315. The Hospital does not say that they are doctors, or members of the medical

profession in this sense, or that they are members of the College of Physicians and Surgeons

either. As the Hospital sees it, the PAs can either deal with the Employer on their own,

individually (the current model), or they could conceivably constitute a separate bargaining unit

(represented by a union of their own choice).

316. But in the Hospital’s submission, they are not “paramedical” employees who are

covered by any existing Paramedical Collective Agreement with OPSEU. They are, instead,

“medical employees”, who are implicitly excluded from Article 1.02, and as things now stand,

are non-union employees, whom no union represents. They are not “in” any bargaining unit.

317. The Hospital submits that the disputed employees work completely under the

"medical scope of practice" of the doctors whom they assist and the "medical directives"

emanating from the Hospital itself; so that these individuals are properly regarded as "medical"

employees and not "paramedical" employees. And of course, if they are not "paramedical

employees", then they cannot be in the "paramedical" bargaining unit or covered by the

“Paramedical” Collective agreement.

318. In the Employer's submission, not only is the newcomers' scope of practice entirely

"medical" in nature (being derived exclusively from that of the medical doctors to whom they are

attached) but they do not work in specialized silos like so many of the “paramedical” employees

do (including all of the Union's witnesses); moreover in the Employer view, the Physician

Assistants have far more autonomy, spanning more "medical" areas, than a mere “paramedical”

employee would have - which is not only reflected in what the PAs do, but also in the generalist

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education that they have, which (counsel submits) has more in common with medical students

and medical residents than the more specialized "paramedical" employees.

319. In the Employer's submission the "work" performed by the Physician Assistants

(taking histories, doing diagnostics, ordering tests, communicating with patients instead of the

doctor, putting together treatment plans, following through with the patients on their path to

recovery or even declaring death) is all essentially "medical work" - meaning that the disputed

individuals are "medical employees" not "paramedical employees".

320. For example, (counsel points out) Ms. Papineau testified that a Physician Assistant

could drill holes in the patient's skull, insert pins or attach an immobilizing device, or do a

“close” in the course of a surgery (something that Mr. Hackett confirmed too) – which are all

medical acts; and, in the Hospital's submission, that supports the proposition that a PA should be

regarded as a "medical" employee rather than a “paramedical" employee.

321. Similarly, the PAs review the charts and address issues arising with respect to a

patient, adjust medication, and hand off problems to a doctor in the same way that a medical

resident would do. Indeed, as the doctor’s agent or alter ego, what the PAs do (by delegation) is

in all respects “medical work” (“doctors’ work”), so they should be considered to be “medical

employees” not “paramedical” employees.

322. Counsel for the Hospital also points out that the only effective supervisor of the

work done by a PA is the doctor to whom s/he is attached – a doctor who is not an employee of

the hospital (which, it is said, makes PAs different from other hospital employees); and further

that doctors use PAs and medical residents (fledgling doctors with an M.D.) interchangeably.

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323. The Hospital submits that in functional terms the Physician Assistant is the day-to-

day equivalent of an experienced medical resident (which was Dr. Kravcik’s evidence) who fills

in for the Physician Assistants (along with doctors) when they are on vacation, just as Physician

Assistants are used by doctors as an alternative to using a medical resident. The paramedical

employees are not used interchangeably in this way – doing what PAs do, in their absence.

324. This shows (the Hospital asserts) that the Physician Assistants are, functionally,

“medical” employees and not “paramedical” employees. They are the non-doctor equivalent of a

medical resident.

325. Counsel points out that the PAs write out orders, write or contribute to treatment

plans, check consults, and order patient transfers – none of which, counsel submits, is done by

the paramedical employees. Medical disagreements or queries are dealt with by the doctors with

whom they are associated. The PA also speaks for that doctor at meetings in respect of the

patient's medical issues; and while a nurse may also be present at such meetings too, it is the

Physician Assistant, in place of the doctor, who plays the “medical role” at such meetings.

326. The Physician Assistant can also co-sign documents for the doctor when authorized

to do so; and s/he can communicate on the doctor’s behalf. They can even pronounce death or

sign a death certificate when authorized by their doctor to make such call [the evidence was

unclear in this regard]. And they can do DNR documentation as well. In counsel’s submission,

this is all quite different from what other “paramedical employees” do; and constitutes “medical”

functions rather than “paramedical” ones.

327. Counsel emphasizes that the Physician Assistant’s role in diagnosis and treatment is

not limited to a particular silo like the paramedical witnesses who gave evidence. They are

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doctor surrogates; they are generalists; so that when a registered nurse encounters a problem, she

will likely call the Physician Assistant, who in turn, will decide whether to bring in a doctor.

328. Moreover, that is possible and workable because (according to Employer counsel)

the competence profile of a Physician Assistant is similar to that of a medical resident - as is

reflected in the document under which the Physician Assistant works. Furthermore, without the

supervising doctor to take them on, they would really have no job at all (even though the

Hospital is their employer and paymaster) – which in counsel's submission, is quite different

from the paramedical employees who gave evidence. Their job is not tied to a person in this way.

329. Counsel reiterates that the medical directives and scope of practice under which the

physicians’ assistants work, reflects the scope of practice of the supervising doctors; so that

functionally, the Physician Assistant is interchangeable with that doctor or with a medical

resident attached to the doctor. As he put it, the Physician Assistant is like a medical resident

who never becomes a doctor (recall that a medical resident has an MD degree and is a doctor in

training); while conversely, the PA is the doctor’s alter ego – with a delegated responsibility for

diagnosis and treatment and the ability to initiate follow-up in a way that is very different from

the far more specialized and limited role “paramedical” employees.

330. That is why (so I was told) the rating system used for salary purposes and pay

equity consideration, scored the PAs above the maximum scale that is available for existing

“paramedical” employees. Because in the Hospital's submission, the PA’s responsibility to the

patient is virtually the same as that of the doctor – which is why Dr. Kravcik, one of the

supervising physicians described that relationship as that of pilot and co-pilot.

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331. In counsel's submission, the paramedical employees who gave evidence

exaggerated their role and their contribution to patient care and their independence; but in any

case, none of their testimony undercuts the Hospital’s assertion that the unique blend of

functions undertaken by the Physician Assistant, under the aegis of the doctor’s medical scope of

practice, makes the Physician Assistants "medical employees" and not "paramedical

employees". Performing “medical” functions is the essence – indeed all of - their job.

332. Counsel concedes that one need not be a doctor to perform medical functions;

however the concentration of functions exclusively under the doctors’ medical scope of practice

is what takes the PAs outside the ambit of the word “paramedical”.

333. In counsel's submission, the OLRB cases pertaining to “paramedical” employees

are simply irrelevant, for present purposes, because they all deal with “paramedical” employees

of one kind or another - not “medical” employees - and none of them deal with physicians’

assistants.

334. There is no OLRB decision pertaining to PAs; nor (the Hospital argues) would the

PAs fit very well in the paramedical collective agreement, when the existence and nature of their

work is tied so closely to what the doctor (a non-employee) does. In a layoff for example, they

would have no place to go, without finding some other doctor to “take them on”. That is quite

different from the paramedical employees, whose job security is not tied to their consensual

relationship with a single individual who is not a Hospital employee.

335. In the result, the Hospital submits that while the handful of Physician Assistants

could have their own separate bargaining unit; they do not fall into the existing “paramedical”

bargaining unit, because they are not “paramedical” employees.

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336. The Union’s grievance should therefore be dismissed.

337. The Employer referred to a number of cases, which, like the Union’s case

references, have been collected in Appendix A to this Award.

XII – Discussion: what the task of “interpretation” entails

338. This case involves the interpretation/application of a particular word in a collective

agreement - the word “paramedical” - and I am grateful for the thorough and thoughtful

submissions of counsel. However I do not think that it is necessary to engage in a review of the

“legal rules” for interpretation of “contractual documents”. That case law was not the main focus

of the parties’ arguments and I do not think that it is necessary to review those cases here.8

339. That said the Labour Relations Act requires that a collective agreement be “in

writing”, so it is trite law that the parties’ obligations are to be determined by the “words” in

their collective agreement and that those words should be given their ordinary meaning (i.e.

their dictionary meaning) unless there are good reasons to do otherwise.

340. It is further understood that words can take their meaning from the setting in which

they are found and from the purpose for which they were chosen (here to define a particular kind

of “bargaining unit”); and that those “contextual factors” can be used as an aid to interpretation:

to suggest a broad or narrow or specialized meaning for the word(s) in question; to help make a

choice between competing reasonable interpretations; or to help resolve disputes about how a

particular word should be applied in particular (often unforeseen) circumstances.

8 See however, arbitration cases such as Communications Energy and Paper-workers’ Union, Local 777 and

Imperial Oil Strathcona (Policy Grievance) (2004) 130 L.A.C (4th) 239 and Court cases such as Eli Lilly & Co. v.

Novopharm Ltd., [1998] 2 S.C.R. 129, Re Viterra and Grain Services Union an Arbitration Board chaired by

William Hood (2011), SKQB 439, Dumbrell v. Regional Group of Companies Inc., [2007] ONCA 59 (CanLII) and

Salah v. Timothy’s Coffees [2010] ONCA 673 (CanLII).

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341. It may also be useful to consider whether a proposed interpretation leads to clearly

unanticipated or anomalous results (whether or not they rise to the level of an “absurdity”);

because an adjudicator should not lightly choose a meaning that produces such untoward

consequences if there is a reasonable alternative interpretation that avoids that outcome.

342. Finally, since the critical word in this case (the word “paramedical”) is derived

from OLRB practice and parlance, I think that it may be useful to consider where that bargaining

unit terminology “comes from” and what it was meant to achieve – the general legal landscape,

so to speak. Because I agree with the Union that the word “paramedical” in Article 1.02 has

been plucked from a particular legal setting, where it is customarily used to describe a particular

kind of “bargaining unit”; so I think that it may be helpful to understand what a “bargaining unit”

is and what that “paramedical” terminology customarily refers to – not least because it was the

OLRB that had a hand in confirming the “paramedical” bargaining unit at the Ottawa Hospital.

343. I will begin with that general legal landscape.

344. I will then turn to the disputed word itself, the way in which the parties have used it

in their Collective Agreement, and whether the “work distinctions” asserted by the Employer

(“medical” duties versus “paramedical” duties) command the result that the Hospital proposes.

XIII – The general legal landscape: what is a “bargaining unit”?

345. In the instant case, the word "paramedical" is the lynch-pin that anchors the

“bargaining unit” definition found in Article 1.02. It is a word that describes the essence or

quintessential nature of that bargaining unit; and from this perspective, it distinguishes those

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kinds of employees, in that kind of bargaining unit, from other kinds of employees, in other

kinds of bargaining units (like the specialized bargaining unit for “nurses”).

346. But what is a “bargaining unit” and how is it established?

347. “Bargaining units” are the basic building blocks for collective bargaining within an

employer’s organization and they are typically established by the OLRB when a union applies

for “certification” as the “bargaining agent” for a group of unrepresented employees. Those

employees do not have unlimited freedom of association. Nor is it open to the union to represent

only its members or supporters. Instead, under the Labour Relations Act (“OLRA”) the

employees have to be grouped together, for bargaining purposes, into “appropriate bargaining

units”. And by and large, it is the OLRB that determines what is “appropriate”.

348. The “bargaining unit” identifies the employee-grouping within which the union

must establish majority support; and if the union is successful in that regard, then that bargaining

unit becomes the grouping of employees for whom the union negotiates with a view to

concluding a collective agreement. It is also the group of employees to whom any resulting

collective agreement will (normally) apply. 9

349. The term “bargaining unit” is defined in the Labour Relations Act as “a unit of

employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or

a subdivision of either of them”. However, the OLRA does not give the OLRB much guidance on

how such bargaining units should be constructed - other than noting the possibility of a "craft

bargaining unit" (plumbers, electricians and the like, mostly in the construction industry) and

9 Section 45 of the OLRA requires that every collective agreement specify the bargaining unit of employees who are

covered by that agreement – which is done here in Article 1.02.

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granting “professional engineers” (but only that “profession”) a right to have their own

bargaining unit, unless they want to be mixed in with other workers. But apart from that, the

OLRB can fashion whatever employee “bargaining unit” it considers “appropriate” in the

circumstances. It is a policy decision that the Legislature has left to the OLRB.

350. These bargaining units (once established) can later be modified by the bargaining

parties or by the OLRB under the Labour Relations Act or the Public Service Labour Relations

Transitions Act – usually, if the employer organization changes in some way (like a merger with

some other employer). However, the OLRB’s determination is the important starting point; and

any later evolution will likely be influenced by that history – hence the persistence of a

“paramedical” bargaining unit at Ottawa Hospital despite many organizational changes over the

years and a number of rounds of collective bargaining.

351. The policy considerations that underlie these bargaining unit determinations are

explored in a number of OLRB decisions that were referred to by the Union in argument. 10 I

will touch on them only peripherally here. However at the risk of being unnecessarily obvious I

should note that fixing the number or identity of employees in the “bargaining unit” at the time

of certification does not mean that the union's “bargaining rights” are tied to those particular

individuals. The union’s “bargaining rights” pertain to the “bargaining unit” defined by the

10 Re Stratford General Hospital and Ontario Public Service Employees and Allied Health Professionals et al

[1976] OLRB Rep. September 459; and Canadian Union of Public Employees v. Hospital for Sick Children, 1985

CanLII 899 (ON LRB), which discusses International Brotherhood of Electrical Workers Local Union 1687 v. Kidd

Creek Mines Ltd., 1986 CanLII 1511 (ON LRB)

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OLRB (and later by the collective agreement); so that any subsequent enlargement or contraction

of the workforce does not affect the “scope” of those bargaining rights. 11

352. In the result, any new employee who fits into the bargaining unit description will

automatically be covered by the collective agreement upon being hired - regardless of what

his/her individual wishes may be, and regardless of the employer’s wish to deal with such

employees individually. It is sufficient if the newcomer meets the bargaining unit definition; and

if s/he does, then the recognition clause of the collective agreement (here Article 1.02)

automatically brings him/her into the legal regime to which the collective agreement relates.

353. In a unionized environment, therefore, it is not open to the employer to bargain

with, or enter into an agreement with, an employee that is inconsistent with the terms of the

collective agreement. The new employee takes the collective bargaining framework as s/he finds

it and so must the Employer. For as the Supreme Court of Canada observed in Syndicat

Catholique des Employés de Magasins de Québec Inc. v. Paquet Ltée, [1959] SCR 206, 1959

CanLII 51 (SCC), once a trade union is on the scene and a collective agreement is in place:

There is no room left for private negotiation between employer and

employee. Certainly to the extent of the matters covered by the collective

agreement, freedom of contract between master and individual servant is

abrogated. The collective agreement tells the employer on what terms he

must in the future conduct his master and servant relations.

354. This is also a reminder, I think, that one has to be cautious about the evidentiary

weight to be given to individually agreed-upon terms of employment, that are different from

those that have been negotiated collectively and appear in a collective agreement. Such terms

11 See the comments of Laskin CJC in Beverage Dispensers & Culinary Workers Union, Local 835 v. Terra Nova

Motor Inn Ltd., [1975] 2 S.C.R. 749).

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may not help to establish the meaning of the “recognition clause”, they may only provide

evidence of its breach; moreover, it would hardly be surprising if employees outside a bargaining

unit had fewer or different “rights” than those within it. These differences may not tell us much

about whether the newcomers should have been part of the bargaining unit in the first place.

355. A bargaining unit can cover either all employees of the employer or some

subdivision of them; but I think that it is important not to overemphasize the extent to which a

“bargaining unit” is “about work”, as such, except at a high level of generality. Because there are

lots of bargaining units that encompasses “all employees” of an employer without any other

work qualification at all, or (as in the instant case), there are units that cover hundreds of

employees in different occupations, with very different salaries and work responsibilities.

356. What matters is an affinity for bargaining purposes – an affinity that the OLRB has

said can be established by common employment alone; 12 and, it is also important to appreciate

that drawing these bargaining unit lines (and thus the eligibility to participate in collective

bargaining), is distinct from the outcome of that process.

357. Once these bargaining unit determinations have been made, they establish the

“structure” of collective bargaining within each employer’s organization (i.e. the number of

bargaining units and thus the potential number of unions); and there is no doubt that such units

can sometimes be related, at least in a general way, to the mix of jobs or the kind of work that

12 In Terra Nova Laskin CJC observed: “Conceivably, there may be no work categories, but only a specification of

“all employees of an employer”, excluding those in a managerial capacity who may not be included in a bargaining

unit”; and in Metroland Printing, Publishing and Distributing Ltd. vs. Communications Energy and Paper Workers

et al [2003] OLRB Rep Jan/Feb 104 the OLRB noted that “It is now common for employees with quite different

terms and conditions of employment and different employment aspirations, including part-time and full-time and

temporary employees, to be placed in one bargaining unit.”

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employees are engaged in. However the connection may also be quite general or attenuated; and

in fact, collective bargaining practice actually demonstrates considerable diversity.13

358. It must also be remembered that collective bargaining is, by definition, about

groups - not about individuals or their particular duties; so it not unusual for a bargaining unit to

encompass different kinds of employees, doing different kinds of work and earning quite

different wages – like the paramedical bargaining unit in the instant case (see paragraph 2

above). Similar work is not a prerequisite for inclusion in a bargaining unit – although a very

large work force may well be subdivided, for bargaining purposes, as in the instant case.

359. The cases referred to in footnote 10 emphasize that the OLRB’s role in bargaining

unit determination is a policy-laden one in which the Board is balancing the right of employees

to organize themselves for collective bargaining purposes, on the one hand, and the need for a

sensible “bargaining structure” on the other – including the avoidance of too many bargaining

units (“fragmentation”) and the utility of standardized units.14 And obviously, the fewer

bargaining units there are in an employer’s enterprise, the simpler the collective bargaining

process is likely to be, and the less likely there will be disputes about work allocation as between

employees in different bargaining units represented by different unions. More bargaining units

means more bargaining and more bargaining complexity.

13 The OLRB discussed that diversity in the Hospital for Sick Children case at paragraph 14; and see generally:

Sack & Mitchell Ontario Labour Relations Board Practice, which also discusses hospital bargaining units.

14 Such standardization can simplify organizing, can make bargaining go more smoothly, and can facilitate

comparison with other employers – something that is especially useful in the hospital sector, where there is “multi-

employer pattern bargaining” and the compulsory arbitration process under the Hospital Disputes Arbitration Act

prompts arbitrators to look for comparisons in similar bargaining units in other hospitals. As to the value of

comprehensiveness, see: Service Employees International Union, Local 204 v Humber/Northwestern/York-Finch

Hospital, 1997 CanLII 15494 (ON LRB)

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360. However, when the OLRB is building bargaining units, it does not normally create

a bargaining unit that is confined to a single job classification, employee type, or department,

unless it is obliged to do so by the “craft unit” provisions of the OLRA (section 9(3)).

361. For example, in Kid Creek Mines supra the Board refused to permit a stand-alone

bargaining unit of 106 licensed electricians who worked in an industrial enterprise with hundreds

of other employees - even though those electricians were highly skilled individuals, who had an

identifiable “trade” and statutory accreditation, and they made up a self-contained group, that

was distinguishable from other industrial workers. These employees did not meet the

(historically limited) “craft unit” definition in the OLRA, and in the OLRB’s opinion, they did

not constitute an “appropriate” unit for bargaining purposes. The OLRB was not persuaded that

an isolated island of collective bargaining made collective bargaining sense.

362. The OLRB has not been inclined to endorse this kind of “balkanization” of the

work force – an aversion to “fragmentation” which the OLRB also applies in other labour

relations settings, including in hospitals, where similar concerns about “fragmentation” arise. 15

363. For example, in Service Employees International Union, Local 204 v

Humber/Northwestern/York-Finch Hospital, [1997] CanLII 15494 (ON LRB) (which involved a

proposed revision of the bargaining unit after a merger) the OLRB was unwilling to sever off the

skilled trades’ personnel from the other employees in the “standard” hospital “service bargaining

15 For historical reasons, hospital nurses (who organized very early), have acquired a right to what amounts to a

“craft bargaining unit”; but by and large that approach has not been extended to other professional groups in public

hospitals. In Hospital for Sick Children, supra, the OLRB noted that the nurses-only bargaining unit was “based

firmly on established collective bargaining practice, and whatever its merits, viewed with the benefit of hindsight, it

is a claim that cannot now be denied” – a form of words that suggests that were it not for that history, the nurses

might be included in the paramedical bargaining unit along with other health care professionals. Because other well

defined groups like Pharmacists or Registered Psychologists do not have their own units, they are in the open-ended

“paramedical unit”.

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unit”, even though these skilled tradesmen were a distinct group. For of course, if every

“specialized” hospital work group had its own “bargaining unit”, then there could be dozens of

bargaining units, each potentially represented by a different trade union or employee association.

The hospital’s collective bargaining structure would look like a checkerboard.

364. On the other hand, if the parties agree on the bargaining unit description, the OLRB

may well accept their agreement. The strong preference for standardization and

comprehensiveness may yield to the parties’ local agreement; or tailored to pre-existing

bargaining rights that cannot be easily over-ridden ex post facto when a new union comes on the

scene. 16 New collective bargaining formations are built upon or made to conform to, what is

already there; and that status quo may have to be taken into account, to some extent, even when

organizations change in a way that triggers the OLRA or the PSLRTA.

365. Once the bargaining unit is established by the OLRB, collective bargaining

proceeds on that basis, more or less permanently, unless the parties agree to modify the

bargaining unit description or the OLRB later does so under the OLRA or the PSLRTA. However,

the parties cannot be forced to make such modifications to the bargaining unit definition; so that

this bargaining unit status quo tends to persist over the years and over successive rounds of

bargaining – as in the instant case, where a “paramedical” bargaining unit has been part of the

collective bargaining picture for many years.

366. Finally, I should note that when the OLRB constructs a bargaining unit of

employees under the OLRA, it cannot include in that bargaining unit persons whom the statute

16 See: OPSEU v. Ottawa General Hospital [1982 OLRB Rep. Dec. 1867 and [1983] OLRB Rep March 434; and

the 1993 Riverside Hospital decision at Volume 5 tab 3 of the Union’s materials; and see Re Ottawa Hospital et. al.

[2005] OLRD No. 380, where the Board confirms its preference for comprehensive bargaining units, but notes that

it also has to take into account what is already there (which is easier if the status quo reflects standard units and

more difficult if it does not).

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itself excludes from collective bargaining by deeming them not to be “employees” to whom the

statute applies. Those “exclusions” are set out in section 1(3) of the OLRA, and they include:

“managerial” personnel; persons employed in a confidential labour relations capacity; and an

odd collection of “professionals”: “members of the architectural, dental, land surveying, legal or

medical professions entitled to practice in Ontario and employed in a professional capacity".

367. No such legal barrier applies to other kinds of “professionals” - who are entitled to

bargaining collectively in whatever “bargaining unit” the OLRB finds to be appropriate. There is

no special statutory treatment for “professionals”, as such, (except for engineers), nor is there

any statutory prescription for might constitute a “profession”.

368. However since the groups mentioned in section 1(3) of the OLRA are not

“employees” under the OLRA then (prima facie at least) none of them can be part of a

“bargaining unit” or participate in collective bargaining under the OLRA. That means that

medical doctors – true “medical professionals” – members of the “medical profession” (and the

College Physicians and Surgeons) - are excluded from bargaining under the OLRA by virtue of

section 1(3) of the Act, even if they are “employees” for other purposes.

369. To be sure, persons who are not “employees” under the OLRA may still be able to

form themselves into groups and engage voluntary bargaining with their employer; and the

results of such discussions may produce a document that resembles a “collective agreement”.

Collective bargaining is a tool that is not confined to persons covered by the OLRA. But OLRA

“bargaining units” are, by definition, composed of “employees” under the OLRA; and so are the

mechanisms for dispute resolution that are prescribed in the OLRA.

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XIV - Where does the “paramedical” bargaining unit terminology come from, and what

does hospital industry practice tell us about the composition of such “paramedical” units?

370. Bargaining units are determined on an employer by employer basis; and there is no

dispute that the OLRB’s preference in public hospitals is for large “generic” bargaining units,

like the ones found at the Ottawa Hospital. Those hospital units normally include: a “service

unit” of largely blue collar workers (porters, cleaners, food service personnel and building

maintenance staff); an “office & clerical” unit covering the hospital’s administrative personnel; a

nurses’ unit; and a “paramedical bargaining unit of auxiliary health caregivers, doing

professional, technical and diagnostic support. Taken together, these units cover virtually all of

the hospital employees who are eligible to bargain collectively under the OLRA. 17

371. This pattern of generic bargaining units grew out of the OLRB’s experience in the

1960’s and 1970’s when unionization spread into public hospitals and the Board had to consider

what the bargaining unit(s) “should look like” in these large public sector institutions, which

employed a novel mixture of unskilled, but also quite highly skilled professional and technical

employees. What was the appropriate grouping of such employees for collective bargaining

purposes? Should they all bargain together? Or should there be subdivisions? And if so, how

many bargaining units should there be, and of what kind?

372. Insofar as the “paramedical bargaining unit” is concerned, the leading case dealing

with these issues is Stratford General Hospital, supra, where the OLRB was presented with

competing proposals for how “technical” and “professional” employees should be grouped

17 See generally Sack & Mitchell Ontario Labour Relations Board Practice Chapter 3 paragraph 3.326 ff. At the

Ottawa Hospital the “service” and “office/clerical” bargaining units have been combined into an even bigger and

more comprehensive bargaining grouping.

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together for bargaining purposes – an argument that was being advanced, in that case, by two

different unions that were trying to organize two different (and overlapping) configurations of

hospital employees. It was an ideal setting in which to address the normative question of what

the bargaining structure for hospital employees “should” look like; and, as it turned out, the

OLRB made a policy decision that ultimately set the pattern for the hospital sector as a whole.

373. In Stratford General Hospital the Board began its analysis by reviewing the

employment characteristics of the employees found in a large public hospital. These factors

included: the variety, diversity and “professionalization” of this skilled work force; the purported

distinctions between “professional” and “technical” employees; the importance of post-

secondary educational requirements as a prerequisite for their jobs; the many specialized “silos”

in which these employees worked; the way in which these pockets of employees with specialized

expertise interacted with other employees and with doctors; the effect of statutory recognition,

registration or certification for particular groupings (like pharmacists); the existence of outside

professional associations that reflected the employees’ “professional interests” regardless of

where their members might be working from time to time; and so on.

374. It was unique setting – albeit one in which employment issues like wages and

benefits had to be sorted out, just like for any other large public sector employer. Because

municipalities and large public sector organizations like Ontario Hydro or the Ontario Civil

Service also employ large and diverse collections of employees – including some highly trained

technical employees and professionals.

375. In Stratford General Hospital the Board examined the duties and responsibilities of

the employees whom the two unions sought to organize, then it turned its attention to what the

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“appropriate” bargaining unit(s) “should be” for this diverse group of skilled or well-educated

employees, who had expressed an appetite for collective bargaining by joining the two unions.

How should they be grouped or subdivided for collective bargaining purposes? Should

“technical” employees be separated from “professional” employees; and if so, what was a

“profession” and how should such lines be drawn? Should each definable “profession”,

department, specialty, or subgroup have its own bargaining unit? Or should all of these

knowledge workers be put into one big bargaining unit – treating them all together, for collective

bargaining purposes, and leaving it to collective bargaining itself to sort out what their different

work responsibilities might mean for wages or other terms of employment?

376. Those were the issues that were explored in Stratford General Hospital; and

ultimately, the OLRB concluded that all of these professional and technical employees should be

grouped together, for collective bargaining purposes, into a single, large, so-called

“paramedical” bargaining unit.

377. In Hospital for Sick Children supra (issued in 1986) the OLRB summarized the

result of the Stratford General Hospital case, this way:

Some of the same concerns [about fragmentation] underlie the Board's

analysis in Stratford General Hospital, [1976] OLRB Rep. Sept. 459,

which involved an attempt by two unions to organize differently

described but overlapping units of paramedical employees. The initial

problem was the description of the appropriate bargaining unit. The

Board recognized that in the special environment of a public hospital

pharmacists, physiotherapists, social workers, etc. all had an arguably

distinct identity stemming from such factors as their specialized training,

outside professional or quasi-professional associations, and particular

departmental focus. In this sense, each sub-group and each department

could claim a distinct community of interest. However, the Board made it

clear that this did not mean that each of these groupings would constitute

a separate bargaining unit for collective bargaining purposes. Such

balkanization of bargaining would create serious administrative problems

for the Hospital. Nor, for reasons set out at length, was the Board

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persuaded that technical, paramedical, paraprofessional and professional

employees could, or should, be distinguished for collective bargaining

purposes, even though there were obviously important distinctions

between the various sub-groupings based upon their level of education,

responsibilities, degree of independence, and how far they had travelled

on the "road to professionalization". The Board was of the view that for

collective bargaining purposes, they could all comfortably co-exist within

one paramedical bargaining unit.

378. The essence of the OLRB’s views can be seen in the following passage toward the

end of the Stratford General Hospital decision, where then Vice Chair G.W. Adams,

summarized the central characteristics of the “paramedical” bargaining unit in a passage that

reads much like the analysis in the Calgary Regional Health Authority case, twenty years later:

We think Friedson’s observations [a discussion of the occupations that

cluster around the work of healing which is ultimately controlled by a

doctor] capture some of the most salient characteristics shared by the

occupations affected by this application. The evidence clearly

demonstrates that all the occupations are organized around the medical

profession, and despite the ethical stance taken by some of the witnesses,

we are satisfied that all of the occupations are subordinate to that

profession. They perform their work at the request of a doctor and the

work to a greater or lesser extent is monitored by a doctor. In fact, the

similar regulatory treatment proposed for each of the occupations by the

Committee on the Healing Arts suggests that Committee shared our

opinion with respect to these common characteristics. The Board is also

satisfied that all occupations are integrally related to the treatment

process and while there may not be significant direct contact between all

the occupations in the two groupings proposed by AAHP, all of the

occupations sought to be represented by AAHP rely upon information

and analysis provided by many of the other occupations and must be fully

familiar with the significance of their activities. Therefore, in this sense

there exists a functional interdependence between the activities of the two

groups of occupations…These common characteristics aside, the Board’s

aversion to fragmentation or preference for a more comprehensive

bargaining unit cannot be ignored….Thus even if the units proposed by

AAHP were considered appropriate, the Board could exercise a

discretion in favour of the more comprehensive bargaining unit proposed

by OPSEU.

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379. That is how the word “paramedical” came to be attached to the kind of broad,

generic, bargaining unit that has become the norm in public hospitals and that is described in the

Ottawa Hospital Collective Agreement at Article 1.02.

380. Why did it become the norm? Because when the OLRB was constructing

bargaining units in later hospital cases, it applied the same holistic approach enunciated in

Stratford General Hospital - resisting specific exclusions of one kind or another, and opting

instead for a single large bargaining unit, that captured the full range of occupations “organized

around the medical profession” and “subordinate to that profession” (as the OLRB had put it in

Stratford General Hospital). Moreover, the OLRB maintained that holistic view, regardless of

the actual mix of such occupations or “professions” in the particular institution under review.

381. For example: in Ontario Public Service Employees Union v. Hôpital Montfort et al

Respondent [1980] O.L.R.B. Rep. 1647 the Board included pharmacists, physiotherapists,

dieticians, social workers and psychologists in the same paramedical bargaining unit, even

though it was argued that they had a different community of interest from other employees in

other occupational groups. Similarly, in S.E.I.U., Local 204 v. Toronto East General &

Orthopaedic Hospital Inc., [1981] O.L.R.B. Rep. 1672 the OLRB said the same thing to the

pharmacists who wanted to be excluded from the paramedical bargaining unit, on the basis that

they were a distinct profession with their own unique interests. Likewise in OPSEU v. Windsor

Western Hospital [1979] OLRB Rep. May 462, the Board refused to exclude psychologists and

psychometrists from the paramedical bargaining unit. And in Allied Health Professionals v.

Queensway General Hospital et al. 1996 OLRD No. 44, the Board refused to exclude employees

in the positions of speech-language pathologist, dietitian, chiropodist and pharmacist (again).

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382. In each of these cases the OLRB ruled that the disputed individuals were

“paramedical” employees, who were properly part of the “paramedical” bargaining unit, for

collective bargaining purposes. They were in occupations “organized around the medical

profession” and “subordinate to that profession”; and, as such, for collective bargaining and

labour law purposes, they should all be in the same “bargaining unit” – the “paramedical”

bargaining unit - even though they did very different work or were in separate “professions”, or

had different work hierarchies for regulatory or other purposes, and no doubt they earned

different salaries, commensurate with their particular skills and abilities.

383. That was all true. The employees in question were very different. But for

bargaining unit purposes they were all “paramedical employees”, despite their different

educational background or professional role in the workplace - and whether or not they were

involved in direct patient care, or ancillary functions associated with diagnosis and treatment (all

under the ultimate authority of doctors, who had their own specialties and subdivisions while

remaining members of the “medical profession”).

384. I do not think that it is necessary to burden these reasons with further examples of

the way in which the OLRB has approached the determination of bargaining units in public

hospitals, or the way in which the OLRB has prescribed, and described, the composition of

particular “paramedical” bargaining units (i.e. the kinds of employees whom the Board thought

“should” be embraced by the word “paramedical”). I am not the OLRB.

385. The point is: for collective bargaining and bargaining unit purposes, the OLRB has

ignored the work distinctions between and within these technical and professional employee

groups; and it has, instead, put them all together, for bargaining purposes, into a single,

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comprehensive “paramedical” bargaining unit, that embraces all employees and occupations that

are “organized around the medical profession” and “subordinate to that profession”.

386. It is an elastic envelope (and descriptive word) that includes employees of many

types and at all levels, with (in the present case) those at the top of the pyramid earning three

times as much as those at the bottom of the scale. But they are all part of the same “paramedical”

bargaining unit - a “collectivity” for bargaining purposes.

387. They are all paramedical employees - leaving it to bargaining itself to sort out what

wages should be attached at particular levels of attainment and what common protections should

be applicable to everyone. And leaving it for the parties or the regulators to sort out what

credentials might be required for particular jobs or how someone progresses through the ranks of

each professional grouping.

388. That is what the umbrella-word “paramedical” means when it is used by the OLRB

in relation to hospital bargaining units; and that it is how the OLRB applies that word when it

creates or modifies such “paramedical” bargaining units. And as the Union points out: that is

how some other labour tribunals have defined the term “paramedical” as well (see again:

Calgary Regional Health Authority supra).

389. Accordingly it seems to me that when the parties adopt or continue that very same

language in their collective agreement, then there is at least an inference that it carries the same

generalized, catch-all, holistic meaning that its originator and creator (the OLRB) had, unless the

parties choose to bargain something else, or add specific exclusions or exceptions (writing their

own dictionary so to speak).

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390. In this respect the “recognition clause” is a little different from some of the other

clauses in collective agreements that are hammered out only between the parties themselves.

Because it reflects the OLRB’s handiwork and terminology, which, once adopted (or more

commonly imposed by operation of law), forms the basis for future collective bargaining unless

the parties themselves negotiate specific modifications. And it exists separately and apart from

the collective agreement in which it is embodied from time to time.

391. So what does all of this “general background” mean for the rather narrow

interpretation problem that arises in this case? Only this, that it tends to support the simple and

straightforward narrative advanced by the Union; namely that:

hospital employees, including “professional” employees, (but excluding

doctors), are entitled to engage in collective bargaining under the OLRA

and do, in fact, engage in such collective bargaining

there are large generic bargaining units for such hospital employees that

are normally created by the OLRB; and one of them is the so-called

“paramedical” bargaining unit, which covers professionals and

knowledge workers of many kinds and categories

that paramedical bargaining unit is necessarily open-ended and diverse,

so as to capture a broad grouping of such employees, even though there

are many different jobs and job hierarchies within that group, and the

employees perform quite different work functions

labour relations policy (as expressed by the OLRB) supports such

comprehensive bargaining units and discourages exclusions or potential

fragmentation into disparate islands of collective bargaining, even where

technical or professional employees have their own unique interests

so that when a new “professional” scientifically-trained group of

employees comes on the scene, it is sensible to ask whether they fit

somewhere in the existing framework – particularly when the

“paramedical” bargaining unit is clearly intended by the OLRB to be

highly “inclusive” and to avoid islands of collective bargaining, and to

encompasses a diverse grouping of professional and paraprofessional

employees, whatever their particular specialties may be.

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392. That is why the Union submits that its proposed interpretation best accords with the

generally understood meaning of the word “paramedical” - a “term of art”, so to speak, that

originated with the OLRB and should be given liberal interpretation, as the OLRB has given it.

393. For, as the Union sees it, when the bargaining parties adopt or maintain this

“paramedical” terminology in their bargaining unit description, they should be taken to have

adopted its “collective bargaining meaning” as well - which is: it applies to persons employed in

occupations (including educated health professionals), who are subordinate to, and organized

around, and “under” the medical profession. In the Union’s view, that describes the PAs.

*

394. I agree with the Union that this background supports the Union’s proposed

interpretation of the word “paramedical”. However, that is not the only thing that does. So let

me now turn to the more conventional approach to interpretation: (1) the “plain meaning” of the

word in dispute; and (2) whatever enlightenment can be gleaned from the linguistic and

operational context in which the disputed word is found.

XV – What is the ordinary meaning of the word “paramedical”?

395. “Contract interpretation” is conducted in accordance with some general legal

principles but the raw materials for that exercise are the words that appear in the parties’

collective agreement; moreover, no one suggests that a labour adjudicator should read those

words "like a Martian with a dictionary", because the context and purpose can matter too.

However, the “ordinary meaning” of a word is a useful starting point for analysis, and it seems to

me that the place to look for the ordinary meaning of a word is in a dictionary.

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396. “Medicine” concerns the diagnosis, treatment and prevention of disease and the

adjective “medical” is a descriptor that relates to the science or practice of medicine. It also

relates to an established profession (“physicians”) that is distinct from other “health care

professions” (like “nurses”). And as I have noted above: doctors – the true “medical

professionals” - are excluded from “collective bargaining” under the Labour Relations Act, even

if they are “employees” working for an “employer” to whom that statute otherwise applies.

397. However, the fact that physicians form a distinct profession that is excluded from

collective bargaining under the OLRA, does not mean that their work functions cannot overlap

with, or be shared with, other health care providers (like nurses or nurse practitioners or

“paramedical” employees) to whom the OLRA does apply; or that, for example, psychiatrists and

psychologists cannot work together for the benefit of a patient, even though their training and

accreditation are different. In today’s world, medical doctors do not have a monopoly on the

delivery of “health care” or “treatment” - although a medical doctor’s authorization may be

required before particular “medical” acts can be done or delegated, or before particular kinds of

diagnostic tests or treatments can be initiated.

398. In the result, the “work” that doctors once did (or “treatment” more generally) may

no longer be exclusively done by a doctor; so that, these days, it may be more difficult to

distinguish between “medical” functions and “paramedical” functions on a basis that is

unrelated to the professional status or accreditation of the person who is doing those functions

(let alone to conclude that such differences should “matter” for collective bargaining purposes).

The “health care team” is far more diverse than it once was, and so is the distribution of patient

responsibilities, the means of delivering different kinds of “treatment” and the professions

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associated with those roles (like midwives or the “nurse practitioners” described in some of the

cases referred to by the Union, or the new “PA” or the new “Anaesthesiology Assistant”).

399. It seems to me that these developments tend to muddy the distinction (if there is

any for collective bargaining purposes) between what “doctors do” and what other hospital care-

givers do; and between “medical” services on the one hand and “paramedical” services on the

other – a distinction that lies at the heart of the Employer’s argument, to which I will return later.

400. In any event, the disputed word in this case is “para-medical”, not “medical”; so

what does the addition of that prefix, “para”, add to the base word “medical, and what does that

combined word, “paramedical”, then mean - where, as here, it is being used as an adjective and

an anchor word to identify a grouping of employees for collective bargaining purposes?

401. The prefix "para" is of Greek derivation and has come to identify objects or

activities that are auxiliary to, or derivative of, or alongside of, those denoted by the “base word”

to which that prefix is attached. Thus, in English, the prefix "para" is often used in the “naming

of occupational roles considered ancillary or subsidiary to roles requiring more training or of a

higher status, on such models as paramedical and paraprofessional” (to borrow the words of the

on-line source, Dictionary.com). For example, within my own profession one now finds

“paralegals” who do “work” which might, at one time, have been exclusively done by lawyers.

402. These legal newcomers are not “lawyers”, even though they do “legal things” or

may substitute for lawyers in various settings; while, by the same token, the fact that they do

legal things that a full-fledged lawyer might otherwise do, is what makes them PARA-legal

workers in the first place. They do not become “lawyers” by taking on more “legal work” or by

concentrating exclusively on “legal functions”. They do that by obtaining the higher level

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training and certification that is required to occupy that higher professional plateau; and until

they do, they remain PARA-legal personnel, however much “legal work” they do.

403. This kind of subdivision, specialization, and stratification of labour is a relatively

recent phenomenon for the “legal profession” in Ontario, but it has long been evident in the

medical field and it is reflected in the following definitions of the word “paramedical”, drawn

from various dictionaries (some emphasis added):

Paramedical personnel: healthcare workers who are not physicians or nurses. These

include medical technicians, emergency medical technicians, and physicians assistants SEE

Allied Health Professional [Tabers Encyclopedic Medical Dictionary]

Paramedical – of or relating to services and professions that supplement and support

medical work but do not require a fully qualified physician (such as nursing, radiography,

emergency first aid, physical therapy, and dietetics).

Paramedical: supplementing the work of medical personnel in related fields: social work;

physical, occupational and speech therapy

Paramedical – connected with the science or practice of medicine; adjunctive to the

practice of medicine in the maintenance or restoration of health and normal functioning

[Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing and Allied Health]

Paramedical – related to the medical profession in an adjunctive capacity, for example

denoting allied health fields such as physical therapy or speech therapy [Farlex Partner

Medical Dictionary 2012]

Paramedical – having a relation to the practice of medicine in a secondary or

supplementary role, as physical therapy

Paramedical – a person trained to assist medical professionals and to give emergency

medical treatment [Farlex again – my emphasis]

adjective, paramedical – denoting a person who assists physicians and nurses in their

activities (my emphasis)

Paraprofessional – a trained worker who is not a member of a profession but who assists

professionals (my emphasis).

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404. These dictionary definitions share a common theme, and in my view, they all tend

to support the Union’s submission that the “Physicians’ Assistants” should be regarded as

“paramedical” employees for collective bargaining and bargaining unit purposes. Because that is

the “ordinary meaning” of the adjective “paramedical” when it is used in relation to health care

workers. It pertains to people who are trained in the health sciences and who assist doctors or

supplement what doctors do, in various ways, but who are not doctors themselves.

405. In ordinary usage, therefore, the word “paramedical” identifies a class of people

who are not doctors but who may nevertheless provide health care, or “medical care”, or some

kinds of “treatment”, or do medically-related functions in conjunction with “real doctors” -

usually on the instruction, or under the supervision, of those doctors. It follows that they are

“paraprofessionals” too – in this case, adjuncts to the “medical profession”.

406. They act as auxiliaries to the physicians with whom they work, and they may do the

“work” of those medical professionals do, when the paramedical employee is delegated to do so -

even though they are not full-fledged physicians. They are “para-medical” employees, who share

work responsibilities with doctors and assist those doctors.

407. From this dictionary point of view, therefore, I think that the Physicians’ Assistants

in this case can be fairly described as PARA-Medical employees: providers of medical care, or

health care, or kinds of treatment, who are not full-fledged “medical doctors”.

408. The “plain” or “ordinary” meaning” of the word “paramedical” – the dictionary

meaning of that word - supports the Union’s position in this case.

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409. Now no doubt the PAs are different from the para-medical employees who work in

particular job silos (just as “specialists” are different from “general practitioners” while

remaining “doctors” and members of the “medical” profession). They are also different from the

PhD “doctors” (non-medical “doctors”) whom one finds in the “paramedical unit” along with

other health care professionals. And they are different again from the skilled technical employees

whom one also finds in the “paramedical” bargaining unit. And they are different, too, from

other “professionals”, like the “Librarian”, who is also a member of the “paramedical”

bargaining unit, even though his/her connection to patient care is more remote.

410. However, the PAs are clearly not doctors; they do not have a doctor’s accreditation;

they will never be doctors (unless they actually get an M.D. degree); and thus they are not full-

fledged “medical professionals” - as doctors are, by definition (which is why they are mentioned

in the OLRA in professional terms and are excluded from collective bargaining on that basis).

411. The Physicians’ Assistants are not “medical professionals” from this statutory (and

collective bargaining) perspective and they are certainly not “doctors” who are members of the

College of Physicians and Surgeons. Nevertheless, I think that the PAs can be quite accurately

described as “paramedical employees”, even though they have not received statutory recognition

as a “health profession” under Regulated Health Professions Act. And even though they do

medical work, pursuant to a medical doctor’s delegation or a “Medical Directive”. Like the

“Medical Directives” that facilitate the work of PARA-medical employees.

412. And the place for “paramedical” employees is the “paramedical” bargaining unit.

413. What matters here is not that the PAs may be doing “medical functions” (by

delegation), or providing “medical care”, or doing ancillary “medical care”, or “treatment”, or

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are standing in for a doctor, or even that they are “professionals”. What matters, is that they are

“employees” engaged in science-based health care who are not doctors and thus can be fairly

described as “paramedical” employees, for bargaining and bargaining unit purposes - regardless

of their mix of duties. They are in occupations “organized around the medical profession” and

“subordinate to that profession – to repeat the words of the OLRB in Stratford General Hospital,

later echoed, by the Alberta Labour Board in Calgary Regional Health Authority.

414. Indeed, the fact that the word “medical” is embedded in the word “paramedical”

signals, in itself, that such employees may be doing “medical things” or medical duties; and, in

this respect the “para” prefix pertains to their professional status and not just work functions.

415. In my view, therefore, the ordinary meaning of the word “paramedical” supports

the Union’s assertion that the disputed individuals in this case are “paramedical” employees; and

so does the way in which the word “paramedical” has been used, historically and for collective

bargaining purposes. It is a word that, in the labour relations world, describes a cluster of

medical auxiliaries of many types and kinds, who are all assigned to the paramedical bargaining

unit for collective bargaining purposes, regardless of their differences inter se or how they

interact with the doctors who have the most responsible role in health care delivery.

416. The ordinary or dictionary meaning of the word paramedical, and the instrumental

meaning of the term (reflecting the OLRB’s handiwork) point in the same direction and to the

same conclusion: that the PA’s are “paramedical employees”.

417. Such individuals are “employees” entitled to engage in collective bargaining; they

are not excluded from the Labour Relations Act like doctors (true “medical professionals”) are;

they are not “nurses” or a natural part of some other “kind” of hospital bargaining unit (like the

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broad service employees unit or the clerical/administrative employees unit that are the combined

at Ottawa Hospital); and they fall within the ordinary ambit and meaning of the class called, for

bargaining purposes, “paramedical”.

418. Indeed there is something to be said for Union’s submission that the PAs are

quintessential “paramedical” employees – doctor-like, but not doctors. That is why the American

Heritage Dictionary says that, in medicine, the use of the prefix “para” means “subsidiary,

assistant, paramedical” and the Tabers Encyclopaedic Medical Dictionary’s definition of the

term “paramedical” mentions them, specifically, by their actual job title: physician’s assistants.

Their very closeness to the doctor, in function, without actually being one, is what makes them a

classical or proto-typical “para - medical” employee.

XVI – What can we learn from the structure of Article 1.02 and from the way in which the

parties have used the word “paramedical” in conjunction with other words in their

collective agreement?

419. Article 1.02 begins by identifying an open-ended constellation of employees – ALL

“paramedical” employees – from which there are some specific exceptions. Those exceptions

limit the application of the opening words of the clause, even for "employees" who might

otherwise fall within the scope of those words; and in fact, these exclusionary terms might not

even be necessary if the types of employees identified after the “save and except” were not (at

least arguably) “paramedical” employees to begin with.

420. In this respect, the words following the “save and except” in Article 1.02 provide a

clue to the meaning of the word “paramedical” – identifying the kinds of employees who might

otherwise be embraced by that term, were it not for the fact that they have been excluded.

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421. More importantly, though, these exceptions show that the drafters of the collective

agreement know how to exclude employees from the broad “paramedical” umbrella if that is

what they want to do; because that is what has been done in a number of specific instances.

422. For example, the “paramedical” bargaining unit (and thus the “paramedical”

collective agreement) has no application to the staff in the Ottawa Hospital Research Institute (an

institutional subdivision and exception) even if there are “paramedical” employees working

there. Similarly it has no application to Laboratory Scientists (a class of employees), or to

"biochemists" (a particular job classification) - even though their educational background,

professional status, science-based training, work functions, pay, or benefits, might resemble

those of the higher-end “professional” employees in the “paramedical” bargaining unit.

423. These named employees have been specifically excluded from the bargaining unit

even though they might otherwise be regarded as or “look like” “paramedical” employees.

424. However there is no expressed intention to exclude “Physician Assistants” or

employees like PAs; the Employer does not argue that the recently-hired “PAs” are just like the

enumerated exclusions (nor would the available evidence support that finding); and while the

Employer certainly does argue that the PAs are excluded from the paramedical bargaining unit,

it is clear that certain other kinds of “assistants” are not so excluded (e.g. the “dental assistants”

and the “pathology assistants” and the Anaesthesiology Assistant, from whom I heard evidence).

425. Accordingly if the proposition advanced by the Employer is to be accepted, then it

is only because it flows from the meaning of the word “paramedical” all by itself, and not from

any inference from the exclusion provisions of the Collective Agreement - which, if anything,

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tend to reinforce the expansiveness and inclusiveness of the “all paramedical employee”

language, from which a handful of specifically-identified employees have been excluded.

426. With that in mind, then, I think that it is worth looking at (1) the relationship

between Article 1.02 and other provisions in the Collective Agreement and (2) how that word

“paramedical” has been applied, in practice, by the parties themselves. Because both speak to

the arguable application and intended elasticity of the word “paramedical”.

427. As will be seen, the pattern of words used in Article 1.02 is intentionally open-

ended and inclusive (ALL paramedical employees…save and except). The format begins with

that broad and inclusive generic category, which is then followed by some specific exceptions.

And if there were any doubt that this bargaining unit was intended to be an all-encompassing one

which expands, more or less automatically, whenever any new “paramedical” employee appears

on the scene (a living tree so to speak), then that doubt is dispelled by Article 26.01 of the

Collective Agreement, which contemplates that new “paramedical” classifications may be added

to the bargaining unit from time to time. So does the job posting provision (Article 14) which

contemplates that a new “position” may be created if the Hospital decides that it needs one.

428. There can be no dispute, therefore, that the word “paramedical” does not describe a

closed category of employees or occupations (as the OLRB noted in one of a case involving

Ottawa Hospital itself). Rather, the collective agreement contemplates that the “paramedical”

bargaining unit can expand as institutional evolution brings in more employees, or more

specialization, or a more complex division of labour – all of which can lead to the creation of a

new class or kind of “paramedical” employee. It “catches” employee types that may not have

been in existence many years ago when the paramedical bargaining unit was first established.

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429. In this respect the bargaining unit is intended to be adaptable and to accommodate

change – which, it will be recalled, is how the OLRB used that word as well. That is why the

OLRB panel in the Ottawa Hospital case was careful to note that the fact that although it was

addressing some disputed positions and putting them into the paramedical bargaining unit, it did

not mean that the Board was exhaustively defining the composition of the bargaining unit.

430. From this perspective, therefore, the Union’s position and proposed outcome do not

represent a farfetched or flimsy interpretation of Article 1.02. On the contrary, what has

happened here can be quite plausibly characterized as an instance of precisely what Article 26.01

contemplates: a new type of “paramedical” employee has come along that did not exist before

and that now has to be added to the bargaining unit, and a salary has to be established for that job

on whatever basis or job evaluation method is applied to new “paramedical” employees.

431. Moreover, there is nothing in Article 26.01 that stipulates what that salary will be or

where someone will be placed in the salary hierarchy – including at the very top, if the objective

evidence (or the labour market) warrants a high salary to attract and keep the newcomer. Nor is

there anything that suggests that the bargaining unit composition is determined by salary levels.

432. It also worth repeating that the existing “paramedical” bargaining unit already

embraces a highly diverse collection of occupations with very different work responsibilities and

levels of remuneration; and that some of these positions (from the job title at least) do not even

look particularly “paramedical” let alone “medical” (the “life skills counselor” for example).

Some of these employees are quite well paid and some of them are paid much less. Yet they are

all, by definition, “paramedical employees” for bargaining and bargaining unit purposes, because

the parties have put them into the “paramedical” bargaining unit.

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433. Mere differences in work functions or responsibilities or salaries – in fact quite

profound differences – do not necessarily take someone out of the bargaining unit. That is not

how the bargaining unit is defined.

434. In application, therefore, the word “paramedical” is both flexible and exceptionally

comprehensive; it is being used to describe a very eclectic mix of jobs; and it cannot be said that

there is some common core of “medical” or “quasi-medical” work functions that are shared by

all “paramedical” bargaining unit members, except at a very high level of generality. For in fact,

the bargaining unit members do not share a strong and particularized “work-affinity” even

though they are all members of the same “paramedical” bargaining unit (i.e. collective

bargaining is the shared means by which terms of employment are attached to this diverse array

of occupations, with very different work, pay and responsibilities).

435. Not to put too fine a point on it: whatever the dictionary definition of the word

“paramedical” may be, and whatever the OLRB means by the word “paramedical”, the concept

of “auxiliary” or “supplementary” functions has been stretched, in this workplace, a very long

way indeed – including to people whose “work” (on the surface at least) doesn't look particularly

“medical” at all, and to individuals who may not do direct patient care.

436. Accordingly, the way in which the parties have actually used the word

“paramedical” - in practice, and in this institution, and under this Collective Agreement -

suggests a very broad and inclusive and elastic approach to that word, rather than a narrow and

parsimonious one; and a strong work affinity seems to have very little role to play.

437. So why does it matter (for bargaining unit purposes) that the PAs have a different

set of duties or a different role to play in the treatment process - particularly when the PAs meet

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both the ordinary meaning of the word “paramedical”, and the customary meaning of the term

“paramedical employee” when it is used in the collective bargaining process?

438. Why does it matter that an objective evaluation of their role might generate a higher

pay rate than the Employer wants to pay them, or might put them (salary-wise) “above” some

other employees in the bargaining unit, who do different things?

439. If “doing different work” - even very different work - is no signal that someone

cannot be a member of this highly diverse “paramedical” bargaining unit then what is it that

makes the newcomers so very different from a bargaining, and bargaining unit, perspective?

440. For example the Librarian probably has little in common "work-wise" with the

animal care technician; his/her educational background, job horizons and pay are likely to be

quite different; and it is quite unlikely that the Librarian engages in the kind of hands-on care,

“treatment” or patient involvement that so many other members of the “paramedical” bargaining

unit do. Yet s/he is still a “paramedical employee” in the paramedical bargaining unit for

collective bargaining purposes; and, in practical terms, she probably “fits better” in that

bargaining unit of “knowledge workers” than (for example) into a “service” bargaining unit, with

a large concentration of cleaners, porters, food service personnel and blue collar/manual workers,

or into a unit of office and clerical personnel. Or at least the parties must have thought so,

because the Librarian is “in” the paramedical unit, for bargaining purposes (and is thus a

“paramedical” employee) even though his/her professional focus is that of a Librarian.

441. This shows, I think, that for collective bargaining purposes (and for bargaining unit

definitional purposes) big differences in work functions or pay, simply do not matter very much

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for the kind of bargaining unit taxonomy that is at issue in this case; and that one should be

careful about giving undue analytical weight to work differences, per se.

442. Furthermore, while a strong work affinity does not seem to be a defining feature of

this particular bargaining unit; to the extent that the “kind of work” does matter, I do not think

that, from a bargaining/bargaining unit perspective, there actually is a huge chasm between the

PAs on the one hand, and the high-end professionals who populate the upper reaches of the

paramedical bargaining unit on the other – persons whose professional status is recognized under

the Regulated Health Professions Act and who are actually paid more for the “treatment” that

they provide, than the PAs are paid for the (alleged) pure “medical” functions that they perform.

443. In fact, it seems to me that the “job distance” between the individuals who are

already in the paramedical bargaining unit is far greater, inter se, than it is between the

paramedical employees who gave evidence and the “PAs”.

444. In this regard, I agree with the broad similarities that were identified by the Union

in argument and were reproduced, in summary form, in its “Argument”.

445. In light of this collective bargaining reality (i.e. how the “paramedical” group is

actually composed and the diverse kinds of employees who provide patient care of various kinds,

and who the parties themselves have already agreed are “paramedical” employees for bargaining

purposes), there is (in my view) nothing odd or jarring about reading the word “paramedical” in

the way that the Union proposes (and that the dictionaries suggest it should be read and that the

OLRB seems to have meant it to be read). They would not be a square peg in a round hole.

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446. To be clear: I am not looking at “appropriateness” here in the way that the OLRB

would look at it, in order create or amend a bargaining unit. Rather, I am looking at the actual

composition of this bargaining unit (and comparing it with other in-house bargaining units) in

order to see what “kinds” of employees were intended to be caught by that open-ended term

“paramedical” – a word that, according to Article 26.01, can include newly created paramedical

positions that never existed before.

447. I am looking at the real world application of the disputed term, in order to plumb

the meaning and ambit of a word which originated with the OLRB, but which has been applied,

in this work-place, by these parties, in the wide-ranging manner described above: to people who

provide all manner of treatment and patient care, and even to those whose duties are more remote

from hands-on patient care, and in so-doing earn widely divergent salaries.

448. And its seems to me that when one looks at the dictionary definitions, and at the use

of the word “paramedical” as a kind of labour relations “term of art”, and at the actual

composition of the paramedical bargaining unit under review in this case, and at Article 26.01,

which envisages adding new job classifications - all as aids to interpretation – then the meaning

ascribed to the word “paramedical” can easily encompass, and does encompass, the newcomers.

They share the general characteristics summarized in Part X of this Award.

XVII – Does the fact that PAs are aspiring to “professional status” tell us anything about

their place in or out of that paramedical bargaining unit?

449. The evidence shows not only that the paramedical bargaining unit includes a

diverse array of caregivers and auxiliaries, but also that, in practice, it has become a

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“professional catchall” 18 for many jobs that reflect higher educational attainment or

accreditation – as opposed (for example) to the kind of domestic or blue collar skills that are

more commonly found in a “service” bargaining unit (cleaners, porters, food service personnel

etc.) or the clerical and administrative functions performed by office employees. That is evident

not only from the kinds of occupations that are included in the paramedical bargaining unit, but

also from clauses like Article 25 of the Paramedical Collective Agreement which asserts that

“Professional development is the hallmark of all health professionals”.

450. Accordingly, the paramedical bargaining unit is also, in practice, a health

profession bargaining unit. That is why the medical “Librarian” can fit comfortably within the

“paramedical” group even though his/her role is probably quite “auxiliary” and “supplementary”

to the kinds of hands-on medical care that other, “purer”, “paramedical” employees provide; and

that is why the paramedical unit is the home for all manner of “health care professionals”, even

though their functions are different and there are different regulatory arrangements.

451. This placement “works” for the Librarian (and for collective bargaining purposes)

because s/he is a “professional” employee – like the Pharmacist or the Psychologist, even though

her role in the treatment process is more remote and rather different. Just like the Pharmacist and

the Psychologist and the Chiropodist and the Anaesthesiology Assistant are quite different from

one another, even though for collective bargaining purposes are all in the same bargaining unit.

452. Because the ostensible place for such “health care professionals” (who are not

nurses) is in the “paramedical” bargaining unit.

18 Recall that under the OLRA there are no bargaining unit prescriptions for professionals, as such, except for

professional engineers, and the handful of professions excluded from collective bargaining altogether. So it is up the

OLRB and the bargaining parties to prescribe, and describe, the bargaining unit that such professionals inhabit.

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453. In my view, that “professional perspective” also supports the Union’s argument that

the word “paramedical” applies to the PAs; and in that regard, it is interesting to note that the

PAs individual terms of employment contemplate continuing professional education - mirroring

kind of concerns about professional development that are mentioned in Article 25. And as I have

canvassed earlier: their actual terms of employment are not substantially different either (other

than having a salary that might be higher if they were regarded as “paramedical” employees).

454. These newcomers are not service employees or clerical employees; and they are not

nurses; and they are not doctors or medical students or medical residents; but to the extent that

they can claim to be an emerging “professional status” and are engaged in patient treatment, then

the “paramedical” unit is the place where one finds such “professional” health care employees.

455. The word “paramedical” in this work setting embraces such paramedical (non-

doctor) professionals; and in this sense, the application of the word “paramedical” is illuminated

by both what the disputed employee are and what they are not. They are health care professionals

who are not doctors or nurses or medical residents; and they are certainly not service employees

or office and clerical employees who have their own unit.

XVIII How helpful is it to focus on “work” differences and the alleged distinction between

“medical” functions on the one hand and “paramedical” functions on the other?

456. This case is “about” the interpretation of the recognition clause in the Paramedical

Collective Agreement and the resulting inclusion (or not) of some employees in a collective

bargaining mechanism for the purpose of establishing their pay and benefits. It is not about

work, or work assignments, per se; nor is it about the delivery of health care as such; and in fact,

the current Collective Agreement does not even have negotiated (and therefore contractually

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fixed) job descriptions for the “paramedical employees” to whom it applies. Nor does collective

bargaining deal, for the most part, with the way in which the work is ordered or organized or

coordinated, so as to provide the optimal mix of health services for a patient.

457. In this collective bargaining regime, the creation, assignment and coordination of

“work” remains the prerogative of the Hospital, having regard to its “management rights” and to

any statutory prescriptions governing the delivery of health care19; and for that purpose, the

Hospital has also developed a number of “Medical Directives” (an interesting word to apply to

“paramedical employee”) that are signed off by physicians working in the area of specialization

to which the directives relate, and that authorize paramedical employees to engage in various

kinds of diagnostics, “interventions” and “treatment” functions.

458. These documents broaden the employees’ work role, they improve flexibility, and

they remove the need for a specific doctor’s orders; moreover, there are Medical Directives

applying to PAs and there are also “Medical Directives” applicable to paramedical employees.

Many health professionals have their role extended by “MEDICAL” directives.

459. None of these documents is the subject of collective bargaining or union approval;

and it is interesting to note that they make no distinction between “medical employees” on the

one hand and “paramedical employees” on the other. On the contrary, they confirm that, in some

instances, “paramedical” employees are routinely engaged in “medical” acts of one kind or

another just like the PAs. There are “MEDICAL” directives for paramedical employees too.

19 To repeat: there is no indication that the various statutory rules pertaining to health care accreditation or what

medical acts can be done by particular paramedical employees, were ever intended to have anything to do with

collective bargaining (now a Charter protected right) or the salary rates (etc.) that employees in these jobs

command. Likewise whatever may be the legal or professional rules that define what doctors can delegate to

paramedical employees, they have nothing much to do with collective bargaining considerations.

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460. In other words, the critical functional distinction (for bargaining unit purposes)

proposed by the Employer – “medical duties” versus paramedical duties” - is not something that

is rooted in collective bargaining practice or collective bargaining terminology or collective

bargaining considerations, or the language of the actual Agreement; and it is not reflected in the

operational and administrative materials prepared by the Hospital; and it is not reflected in the

terms of employment either – terms that, in general format, are not substantially different from

those of employees whose salary and benefits are determined by collective bargaining.

461. What these documents do show, is that many paramedical employees engage in

“medical” functions even though they are in a para-medical bargaining unit; and, conversely, the

way in which the Hospital actually treats the PAs (for salary and benefits purposes) does not

reflect such distinction or even their relative worth.

462. It is also evident that a strong work affinity is not the “glue” that sticks the

“paramedical” bargaining unit (hundreds of employees) together, except in a very general and

attenuated way. That is the way in which the OLRB has used to term “paramedical”; and that is

also reflected in the diverse collection of occupations found in the paramedical bargaining unit at

Ottawa Hospital. But the Collective Agreement (like the OLRB) does not identify or draw any

distinction between “medical” and “paramedical” work functions, nor is it necessary to do that

for collective bargaining or bargaining unit purposes, or even for the operational purposes

reflected in the Medical Directives which address the work that the employees do.

463. There are no words in the Collective Agreement that support the distinction that the

Employer proposes (at least the Hospital did not point to any); and I am unaware of any arbitral

or OLRB jurisprudence that supports that distinction either – not least because the word

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“paramedical” has the word “medical” embedded within it and has been traditionally used cover

a whole variety of persons who, while not being doctors, are engaged in facets of “medical care”

or “treatment” (just as the Hospital’s “Medical” Directives envisage and permit).

464. There are no “medical” employee bargaining units (as opposed to “paramedical”

ones) of which I am aware in Ontario; there is no Ontario practice of PAs having their own

bargaining unit (like the nurses have); and on the contrary, paramedical bargaining units –

including the one at Ottawa Hospital - cover lots of employees who perform ostensibly medical

functions of one kind or another; while, by the same token, real doctors – true medical

professionals – are statutorily excluded from bargaining by statute (providing a bright line test

about “medical-ness” that the Legislature itself has drawn for bargaining purposes).

465. So the fact is: the “medical” versus “paramedical” distinction that is urged upon me

by the Employer as the critical distinction for bargaining unit purposes, is not one that is rooted

in collective bargaining parlance or practice; and it does not find support in the words found in

the Collective Agreement; and it is not reflected in the operational documents which deal with

how work is delimited, permitted or allocated; and it is not consistent with the ordinary or the

“collective bargaining” meaning of the word “paramedical” either.

466. This not is fertile ground for the kind of proposed “work differentiations” that

underlie the Employer’s argument – differentiations that, in the Employer’s submission, are so

absolutely critical that they must exclude from the paramedical bargaining unit people whose

actual terms of employment are not wildly different from those other Hospital employees, and

who, as the Union corrected pointed out in argument, have many similarities and points of

contact with other health care professionals.

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467. It would have been effortless for the parties to have put in such “medical” category

after the “save and except” words in Article 1.02, so as to carve out a class exclusion from the

“all paramedical employee” group – as was done for radiation personnel, for example, or for the

students. The Collective Agreement could also have excluded the PAs specifically – like the

“biochemist”. And the evidence is that from time to time the parties have discussed specific

exclusions and have made pragmatic decisions about inclusion or exclusion.

468. But there is no such negotiated exception for the PAs; and it seems to me that when

I am asked to find a “non-negotiated exception”, based upon a distinction that is not firmly

rooted in the Agreement, or in the collective bargaining environment, or even in Hospitals own

terminology (as evidenced by “Medical” Directives that apply to “paramedical” employees) I

should keep in mind Article 9.12 of the Collective Agreement which warns an Arbitrator that

s/he is not “authorized to make any decision inconsistent with the provisions of this Agreement,

or to alter modify add to or amend any part of this Agreement”.

469. In my view, this is an “orange light”, that cautions an adjudicator not to turn an

exercise of “interpretation” into something that it is not – in this case to exclude from the

bargaining unit a group of employees whom the parties have not expressly excluded, and who

certainly appear to be “paramedical” employees when the usual tools of interpretation are

brought into play. And that is especially so when the subject of “exclusions” has already been

addressed, in some detail, in the Collective Agreement itself.

470. In my opinion, all of this underscores the novelty of the distinction that the

Employer wishes to draw in this case: that a non-doctor health care provider (which is the

ordinary, dictionary meaning of the word “paramedical”), is really a “medical employee” for

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collective bargaining purposes, rather than being a “para-medical” one - when (to state the

obvious) the word “paramedical” is the labour relations label that has been used for decades (and

in this very milieu) to describe a very diverse grouping of knowledge workers who work with

doctors and who deliver treatment of various kinds, but who are not doctors themselves.

471. And when (again to state the obvious), the compound-word, paramedical, has the

word “medical” embedded within it, and the local operational documents in this workplace – the

“Medical” Directives – make it is clear that that the paramedical employees are expected to

perform “medical” functions of one kind or another (which surely indicates that they could be

considered “medical employees”, too, at least in this functional sense).

472. Furthermore, I do not think that there actually is a huge difference (from a

collective bargaining perspective) between the newcomers and the paramedical professionals

who provide various kinds of health care, diagnostics, or treatment on the other. It is not as if the

Union is trying to mix apples and oranges; and the PAs unilaterally imposed terms of

employment are actually not so different from what paramedical employees bargain about either.

473. The PAs are clearly subsidiary to the physicians whom they “assist” and they

certainly do different things than the other “paramedical” employees from whom I heard

evidence – just as the “paramedical” witnesses’ jobs were quite different from one another.

474. But I do not think that the “role” or the “work” of the newcomers is different in

kind from a collective bargaining/bargaining unit perspective; or that their terms of employment

are materially different; even if it can be said that they do “medical work” (by delegation) that a

doctor might otherwise do. And I certainly do not think that this takes them beyond the broad

and inclusionary ambit of the word “paramedical”.

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475. In my opinion, what is more significant, for interpretation purposes, is that the PAs

fall within the dictionary definition of the word “paramedical”; they fall within the normal

collective bargaining meaning of that word “paramedical” (as adopted in Stratford General

Hospital 40 years ago and widely used in the collective bargaining world thereafter); they are

health care providers like so many others in the paramedical bargaining unit; they are

professional employees – also like so many others in this bargaining unit; they do medical acts or

treatments, while not being doctors; and their actual terms of employment, are similar.

476. Moreover, the paramedical bargaining unit is not only open-ended and elastic, but

the Collective Agreement actually contemplates precisely what has happened here: the creation

of a new classification that has to be fitted into that eclectic “paramedical” unit.

477. In the result, while the distinction (“medical” versus “paramedical”) has some

superficial attraction (they are different words after all) and it may find some support in the

statutory regulation of work assignments or the delegation of duties, it has, in my view, no roots

in the current collective agreement or in collective bargaining practice, and it is not a helpful (let

alone determinative) approach for interpreting the ambit of the word “paramedical”.

478. In my view, the fact that PAs (who are not doctors) do medical duties (by

delegation from doctors) or may do the same kind of work as residents, does not mean that they

are not “paramedical” employees for the purposes of Article 1.02.

479. On the contrary, in my opinion, it reinforces the inference that the word

“paramedical”, in this context, applies to the PAs.

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XIX - Does the interpretation proposed by the Union produce any obvious collective

bargaining anomalies or manifest labour relations mischief?

480. One of the so-called “rules” of contract interpretation is that an adjudicator should

resist a proposed interpretation if it produces an absurd, obviously unforeseen, or untoward

result. So is that the case here? In my view, the answer is “no”.

*

481. There is no dispute that collective bargaining creates a legal envelope for the

“wage-work bargain” and so does an individual “contract of employment”. However, these are

merely different methods for determining the terms of employment that are attached to particular

bundles of work (“jobs”); and while they are distinct from one another in a number of important

ways, the actual results – salary, benefits etc. – may not look much different. That is why the

PAs have individual salaries and group benefits that are similar to the bargaining unit employees

– including recognition of things like the need for continuing professional development.

482. Furthermore, no one suggests that either legal envelope can conflict with any

regulatory prescriptions pertaining to an employee’s work responsibilities or even that the

collective agreement has much to do with the origin, description, or assignment of “work” – let

alone whom the employees must obey, or please, or cooperate with, when they are doing it.

483. With that in mind (and given the flexibility of collective bargaining and access to

arbitration by both parties), I do not think that the reading of the word “paramedical” urged upon

me by the Union would produce incongruous or untoward results.

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484. On the contrary, what the Union proposes would simply add (would recognize,

really) another type of “paramedical” employee in what is already a very heterogeneous

“paramedical” and “professional” bargaining unit - including many employees who can claim to

be health care “professionals”, just like the newcomers.

485. It would be an instance of exactly what Article 26 contemplates: adding the

newcomers (6 of them in this case) to a bargaining unit that already includes some 2000 other

employees, many of whom are health care professionals, just like the PAs.

486. It would hardly be earthshaking, for example, if these newcomers had the kind of

formalized grievance procedures that the “paramedical” staff have; or if they had the opportunity

to challenge the reasonableness of managerial decisions that affect them; or if their salary were

recorded in the collective agreement rather than in an individual contract of employment – even

if, as one employer witness suggested, that salary might be higher if they were evaluated,

objectively, and on the same basis as the “paramedical” professionals who are already in the

paramedical bargaining unit and with whom the PAs sometimes work.

487. But that is not an anomaly. It only shows that there may be issues about how the

newcomers should be paid in relation to others – bearing in mind that some of the paramedical

employees with whom the PAs work are themselves health care professionals, and some of them

are quite well paid, and some of them are quite highly educated, and some of them are statutorily

recognized as a “health care profession” as the PAs are not (at least not yet).

488. Working out an appropriate salary for a new classicisation is what Article 26.01

provides for; and I do not think that the fact that the PAs might be turn out to be “underpaid”

represents some incongruity, or incompatibility, even if it raises some funding issues for the

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Hospital – issues, that, no doubt, the Hospital must grapple with for all of the employees for

whom the Hospital must seek funding to pay the wage bill.

489. I appreciate the Hospital’s struggle that this regard, when politicians are long on

assigning responsibilities and often short on providing the resources necessary to meet those

responsibilities.

490. However, funding is an issue that applies for all programs and to all employees at

the hospital; and I do not think that the interpretation issue in this case is affected, much, by the

fact that the Hospital can pay the PAs less if they are excluded from that bargaining unit or it

might be obliged to pay them more if they were included in it - and if they were evaluated for

their actual contribution to patient care rather some fiat from the Ministry of Health. Nor does

funding have much to do with the definitional question under review in this case - or that the

funding challenge would be much different if the bargaining unit had 6 more employees in it.

491. Nor do I see any significant impediment to the PAs and the doctors continuing to

work together as before for the good of the patients – as (on the evidence) is generally the case,

for all members of the health care team, regardless of what bargaining unit they are in.

492. No doubt there may have to be some adjustments if the PAs are members of the

paramedical bargaining unit; and I do not doubt that the number of PAs deployed may depend

upon funding and the appetite of doctors to use them.

493. But in my opinion, there is no anomaly or absurdity or operational incongruity in

interpreting the word “paramedical” as the Union urges me to do – which, in my view, is the

better interpretation, for all of the reasons discussed above.

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XX – Summary and Conclusion

494. The issue in this case is whether the word “paramedical” in Article 1.02 of the

Collective Agreement applies to the recently-hired “Physician Assistants”. Having considered

the evidence and representation of the parties, I find the answer to that the question is: “yes”.

495. In my opinion, the ordinary (dictionary) meaning of the word “paramedical” fairly

describes these new employees and favours the Union’s proposed interpretation of Article 1.02.

496. So does the parties’ own practice of using the word “paramedical” to cover all

manner of professional and technical (science-based, better educated) employees - who, in my

view, are not substantially different (from a bargaining unit perspective) than the newcomers.

497. The structure of Article 1.02 also supports the Union’s position; and so does Article

26.01, which envisages the very kind of event that has happened here: the creation of a new

“paramedical” classification.

498. The OLRB’s use of the word “paramedical” (imported into the Agreement)

supports the same conclusion - as does the implicit policy imperative (in favour of elasticity and

against fragmentation) which underlies the OLRB’s way of describing “paramedical” units.

499. The word in dispute here originated in OLRB practice; and I think that it still

carries, at least to some extent, the flavour of inclusiveness and the broad policy purpose that the

OLRB ascribed to it – a meaning which the parties have adopted and not blunted except by the

some specific exclusions which do not pertain to the PAs.

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500. None of the other bargaining units at the Hospital would apply to these new

employees; and to the extent that they are an aid to interpretation, they, too, suggest that the

newcomers are the “kind” of employees (scientifically trained heath care professionals) who are

caught by the word “paramedical” in Article 1.02.

501. In this respect, the “paramedical employees” are identified, for bargaining unit

purposes, not only by what they are, but by what they are not.

502. Conversely, I do not accept the Employer’s work-focused, proportionality

argument, based upon the alleged extent of the “medical-ness” of the newcomers’ duties versus

them more limited “medical-ness” (as opposed to the “para-medical-ness”) of the bargaining unit

members; nor do I accept the asserted importance of that work distinction (if there really is one)

for the purposes of interpreting the bargaining unit definition, Article 1.02.

503. In my opinion, the Employer’s view is not supported by the language of the

Collective Agreement or by collective bargaining practice or even by the language used in the

Hospital’s own “Medical” Directives; and in my view, even if the PAs relationship with the

doctor is more “symbiotic” than that of bargaining unit members and they do the work of

medical residents (who have their own collective bargaining procedure), I do not think this

prevents them from being categorized as “paramedical employees” for bargaining unit purposes.

504. For even if it can be said that the work that the PAs do is “medical” in nature

(because it is delegated to the PAs by doctors, and despite Dr. Kravicks observation that they do

lots of mundane things), it is my view the word “paramedical” is the term that is used in a

hospital setting to describe such non-doctors who provide ancillary “medical” care in

conjunction with doctors. And in my opinion, that is what the PAs are and do.

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505. For all of these reasons, I am satisfied that the Union has established, more

probably than not, that the “Physicians’ Assistants” are “paramedical employees” within the

meaning of Article 1.02 of the Collective Agreement, and this Collective Agreement therefore

applies to them – and has applied to them since their date of hire.

506. I so declare.

507. In accordance with the agreement of the parties, I will confine myself to such

declaration and will remain seized of any remedial issues that properly arise out of the Union’s

policy grievance of March 20, 2008.

Dated at Toronto this 26th day of April 2016

“R.O. MacDowell”

Sole Arbitrator

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APPENDIX A – MATERIALS FILED OR REFERRED TO IN ARGUMENT

UNION MATERIALS

GENERAL ARBITRAL APPROACHES

Brown & Beatty Canadian Labour Arbitration: 4:2000 — INTERPRETATION OF

COLLECTIVE AGREEMENTS, 4:2300 — The Collective Bargaining Context

South Bruce Grey Health Centre (2006), 148 L.A.C. (4th) 442, [2006] O.L.A.A. No. 187 (QL)

(Surdykowski).

Huntsville District Nursing Home Inc. [2014] O.L.A.A. No. 122 (QL) (Randall).

MEANING AND HISTORY OF “PARAMEDICAL”

Attorney’s Dictionary of Medicine and Word Finder, v. 3, p. 45 (J.E. Schmidt).

Taber’s Enyclopedic Medical Dictionary, 18th ed., p. 1408.

The Report of the Hospital Inquiry Commission (the “Johnson Commission”).

Manitoba

Winnipeg Regional Health Authority, 2003 CarswellMan 611, [2003] M.L.B.D. No. 5, 89

C.L.R.B.R. (2d) 252.

Winnipeg Regional Health Authority, Deer Lodge Centre Site [2013] M.L.B.D. No. 10 (QL).

British Columbia

An Inquiry Into Paramedical Professional Bargaining Units in the Health Sector [1995]

B.C.L.R.B.D. No. 427 (QL).

Health Labour Relations Assn. (Kelowna Hospital Society) [1977] 2 Can. LRBR 58, [1977]

B.C.L.R.B.D. No. 29 (QL).

Certain Ophthalmic Technicians and Health Employers Assn. of British Columbia, 2014

CarswellBC 3878, [2015] B.C.W.L.D. 1020, 252 C.L.R.B.R. (2d) 168.

Alberta

Alberta Labour Relations Board Information Bulletin #10: BARGAINING UNITS FOR

HOSPITALS AND NURSING HOMES

Calgary Regional Health Authority [1999] Alta. L.R.B.R. 458 (QL).

H.S.A.A. v. Alberta (Mental Health Board), 2004 CarswellAlta 1304, [2004] Alta. L.R.B.R. 437

139

H.S.A.A. v. Capital Health Authority, 2004 CarswellAlta 926, [2004] Alta. L.R.B.R. 264, [2004]

L.V.I. 3482-6, [2004] A.L.R.B.D. No. 38

Veilleux v. A.U.P.E., 2005 CarswellAlta 201, [2005] Alta. L.R.B.R. LD-10, [2005] A.W.L.D.

1388

HISTORICAL CONTEXT IN WHICH THE INSTANT “PARAMEDICAL”

BARGAINING UNIT WAS FORMED

“Looking Back, Looking Forward: A Legacy Report.” The Ontario Health Services

Restructuring Commission (1996-2000). March, 2000.

Doctors Hospital v. Ontario (Health Services Restructuring Commission) (1997), 3 Admin. L.R.

(3d) 116, 73 A.C.W.S. (3d) 1001, [1997] O.J. No. 3704 (QL) (Ont. Div. Ct.).

Toronto (City) [1998] OLRB Rep. September/October 772, [1998] O.L.R.D. No. 3769 (QL).

North Bay General Hospital [2011] OLRB Rep. January/February 67, [2011] O.L.R.D. No. 621

(QL).

REGULATORY COLLEGES AND HEALTH PROFESSIONS LEGISLATION

RHPA Excerpts

Medicine Act, 1991, SO 1991, c 30

Registration, O Reg 865/93, excerpts

College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses) (2003), 124

A.C.W.S. (3d) 1169, [2003] O.J. No. 3077 (QL) (Ont. S.C.J.).

OLRB APPROACHES RE APPROPRIATE BARGAINING UNITS,

Hospital for Sick Children [1985] OLRB Rep. Feb. 266.

Metroland Printing, Publishing and Distributing Ltd. [2003] OLRB Rep. January/February 104,

[2003] O.L.R.D. No. 514 (QL).

Queensway General Hospital [1996] O.L.R.D. No. 44 (QL).

Canadian Blood Services [2003] OLRB Rep. November/December 1014, [2003] O.L.R.D. No.

4295.

NURSE PRACTITIONER CASES

Credit Valley Hospital and Trillium Health Centre [2012] O.L.R.D. No. 4647 (QL).

Northwestern Ontario Regional Cancer Centre and O.N.A. (2004), 135 L.A.C. (4th) 244, [2004]

O.L.A.A. No. 969 (QL) (Keller, Ch.).

Ottawa General Hospital v. O.N.A., 1984 CarswellOnt 1084, [1984] O.L.R.B. Rep. 1199.

140

EMPLOYER MATERIALS

Physician and Clinical Assistants of Manitoba Inc v. Winnipeg Regional Health Authority [2014] M.L.B

– 7057 (a Manitoba certification decision, without unfortunately any recitation of the facts or reasoning

for the conclusion therein recorded)

The Council of Academic Hospitals of Ontario v. Professional Association of Residents of Ontario

(November 16, 2014) – an interest arbitration involving Residents

The Professional Association of Interns and Residents of Ontario and Ontario Council of Administrators

of Teaching Hospitals 1976 (Shime) – another interest arbitration involving Residents

OPSEU v. Stratford General Hospital (1976) CarswellOnt 679 (Adams) [1976] OLRB Rep. Sept. 459