Social Policy in Ontario

Bill 74, The People’s Health Care Act, 2019, received Royal Assent on April 18, 2019 and enacted the Connecting Care Act, 2019. This set the stage for the Ministry of Health and Long-Term Care and the newly established Ontario Health agency to undertake significant healthcare system transformation, and included rules for certain transfers and amalgamations of services and entities, along with their personnel.

The government has continued to refine how personnel transfers and amalgamations will work, introducing further changes in Bill 100, Protecting What Matters Most Act (Budget Measures), 2019, which received Royal Assent on May 29, 2019. Bill 100 contains significant changes to the Public Sector Labour Relations Transition Act, 1997 (PSLRTA). These changes are now in force, and will have an ongoing impact on health sector labour relations.

As it was…

In our previous bulletin “Labour and Employment Transitions in Ontario’s Health System under The People’s Health Care Act”, we outlined the general applicability of PSLRTA and its applicability to health care transformations under the auspices of the Connecting Care Act, 2019.

In general, PSLRTA sets out the regime under which bargaining units and collective agreements are recognized and revised when there is restructuring in certain public sector organizations, including in the health care sector. PSLRTA applies in these situations instead of the normal successor rights or common employer provisions under the Labour Relations Act, 1995. With respect to the health care sector, in addition to the merger of hospitals, PSLRTA has applied where an integration occurred affecting:

the structure or existence of one or more employers or that affects the provision of programs, services or functions by the employers, including but not limited to an integration that involves a dissolution, amalgamation, division, rationalization, consolidation, transfer, merger, commencement or discontinuance,

where every employer subject to the integration was a health care provider, an entity whose primary function was, or immediately following the integration was, the provision of health services to or within the sector, or was one of the now-defunct local health integration networks.

In our prior bulletin, we noted that Connecting Care Act, 2019 set out a future application for PSLRTA in the sector. For some integrations, specifically those initiated by health service providers (HSPs) and integrated care delivery systems (ICDS, or as they are known in the sector, “Ontario Health Teams”), PSLRTA would continue to apply as it always had. However, for other integrations – Facilitated Integrations (those facilitated by Ontario Health) or Required Integrations (resulting from a Ministerial order) – different rules would apply.

…As it is now

The changes made to PSLRTA by Bill 100 are substantial, and mean that the regime governing labour relations transitions in the health care sector will be significantly different going forward.

Changes to PSLRTA

The definition of “health services integration,” sections 8 and sections 9 of PSLRTA are repealed, and a new section 8 is inserted. As a result:

• PSLRTA as amended will apply only when an integration involves HSPs. Before, PSLRTA applied not just to integrations of HSPs, but also where an integration involved an employer whose primary function is, or immediately following the integration was to be, the provision of services within or to the health services sector.
• The new section 8 will have narrow application as it will only apply where (i) there is an amalgamation of two or more HSPs, and (ii) when there is the transfer of all, or substantially all, of the assets of one HSP to another HSP. Previously, PSLRTA applied to integrations where something less than “substantially all” of the assets were being transferred, and where services (not just assets) were the focus of that transfer.  It also applied to integrations more broadly defined to include a dissolution, division, rationalization, consolidation, merger, commencement or discontinuance of services.
• Section 9 of PSLRTA, under which employers or bargaining agents could apply to the Ontario Labour Relations Board (OLRB) to request that PSLRTA apply to a particular integration is no longer in effect. Applications brought under section 9 were determined at the discretion of the OLRB, having regard to a list of express legislated factors. With this provision removed, the application of PSLRTA will be more tightly confined and presumably shielded from the potential of discretionary “scope creep”.
• The regulation making power that allowed any particular health service integration to be prescribed as an event to which PSLRTA applies has been repealed. Though the Lieutenant Governor in Council (LGIC) still has broad general regulation-making powers, the repeal of this particular regulation-making power is consistent with an overall policy desire to keep the integrations to which PSLRTA will apply a smaller, closed group of clearly defined events as set out in the new section 8.

Changes to the Connecting Care Act, 2019

We noted in our earlier bulletin that the Connecting Care Act, 2019 set out different labour relations transition regimes for negotiations in both sections 35 (essentially for voluntary integrations and Ontario Health Teams) and section 38 (for Facilitated Integrations and Required Integrations).

Bill 100 deletes section 38 of the Connecting Care Act, 2019 in its entirety. This section, which was specific to Facilitated Integrations and Required Integrations (see our bulletin), is not replaced with any other regime.

Consequently, regardless of whether an integration or the creation of an Ontario Health Team is voluntary or whether an integration is mandated by the Minister or Ontario Health, the labour relations transition rules will be the same: if there is an integration that fits within the newly narrowed scope of integrations now governed by PSLRTA (an amalgamation or a transfer of all or substantially all of the assets of a HSP into another HSP), then PSLRTA will apply. Any other integration in the health care sector will no longer be governed by the PSLRTA regime.

Regulations

As is often the case, the amendments to PSLRTA grant the LGIC the power to enact regulations providing for any transitional matters necessary or advisable to implement these amendments. This regulation making power is also accompanied by a further amendment to section 40 of PSLRTA, which provides that the transitional regulations made by the LGIC will prevail in the event of a conflict between those regulations and anything in PSLRTA itself. This power provides the LGIC the ability to “cure” any conflict in the application of PSLRTA that does not align with the government’s intentions.

What does all this mean?

Labour relations in the health care sector have been a clear focus of the new government in the first year of its mandate. The changes being brought about by Bill 100 should significantly curtail the applicability of, and number of applications under, PSLRTA in the context of health care transformations. This leaves the Labour Relations Act, 1995 to apply where and when appropriate. Arguably, this could lead to less union participation in health care personnel movement between entities going forward. However, given the saturation of organized labour in the sector, organized labour’s reaction to personnel movement under the new regime is yet to be seen. We would expect affected unions to do all within their power to maintain membership in the face of transfers and amalgamations going forward.

https://www.fasken.com/en/knowledge/2019/05/health-law-pslrta-overhaul