An arbitrator has dismissed a grievance by SEIU Local 1 Canada that sought to bring workers employed by Compass Group Canada at a Toronto long-term care facility under its bargaining unit, citing an “extreme and inordinate” delay and a lack of evidence that the workers’ presence resulted in layoffs or reduced hours for SEIU members.
The decision follows a prolonged dispute involving Westside Long Term Care Home (operated by HCN-Revera), Compass Group Canada, SEIU, and the Labourers’ International Union of North America (LIUNA), which represents the Compass employees.
SEIU had argued that Westside was the true employer of the Compass workers and that their continued employment at the site infringed on the collective agreement by reducing work opportunities for SEIU members.
Compass employees long embedded in operations
The grievance centred on environmental services workers supplied to Westside by Compass, a relationship that dates back to 1997. LIUNA began representing the Compass workers at Westside in 2006 under a province-wide collective agreement, and Compass has managed the hiring, supervision, and discipline of its employees throughout that time.
SEIU, which represents Westside’s in-house staff, argued that Compass workers performed duties normally assigned to bargaining unit members and were functionally indistinguishable from Westside employees. It cited their integration into the workplace, overlapping responsibilities, use of the same tools, and similar orientation processes.
However, the arbitrator rejected SEIU’s contention that Westside was the true employer. “Looking at the evidence in its totality, I am satisfied that there was no intent to create an employment relationship between Compass employees and Westside,” the decision stated. Despite the close working relationship and shared workplace culture, Compass retained key employer functions, including control over hiring, pay, discipline, and termination.
The arbitrator added: “Compass drives the selection and hiring process, they perform some training but not all, they discipline, fire, supervise, assign the duties, and pay the employees’ wages while remitting their dues and other remittances to LIUNA.”
No evidence of layoffs or hour reductions
A central pillar of SEIU’s grievance was the allegation that Compass workers had displaced SEIU members or resulted in a loss of overtime and full-time opportunities. But the arbitrator found no evidence to support that claim.
“There was no evidence put before me of a single member who has lost hours, missed overtime opportunities or who desired more hours to reach a full-time status,” the arbitrator wrote. Both union witnesses, including SEIU’s chief steward and the union representative servicing Westside, acknowledged that no layoffs occurred in the department.
Although SEIU argued for a broader interpretation of “reduction in hours” to include missed opportunities for advancement or overtime, the arbitrator held firm to the language of the agreement. “This is not a notional concept or an abstract theory,” he wrote. “For Article 13.01 to prohibit the assignment of work to persons excluded from the bargaining unit, there must be a reduction in hours.”
Laches: Two decades of delay deemed fatal
The grievance was also dismissed under the equitable doctrine of laches, which allows a case to be barred due to unreasonable delay and resulting prejudice. SEIU filed the grievance in 2018, despite Compass and its predecessors providing services at Westside since 1997 and LIUNA representing those workers since 2006.
The arbitrator found the delay to be “extreme, inordinate, and unexplained,” noting that SEIU had long been aware of the presence of Compass employees at the site.
“It stretches the bounds of credibility to find that DaSilva, Jackson, and SEIU were, given the evidence before me, unaware of the work Compass was openly performing over all those years,” the arbitrator wrote, referring to SEIU’s representatives and chief steward.
He found that the delay prejudiced all three responding parties—Westside, Compass, and LIUNA—due to the loss of evidence, faded memories, and the risk of unjust disruption to longstanding labour relationships. Had the grievance succeeded, Compass employees could have lost their jobs, and LIUNA could have lost long-held bargaining rights.
“The remedies sought and the consequences flowing from this matter should SEIU be permitted to proceed would be prejudicial,” the arbitrator wrote. “The Compass employees are not temporary agency employees; they are permanent employees with a permanent assignment to Westside.”
Job posting and contracting out allegations also rejected
The arbitrator also dismissed SEIU’s claims that Westside had failed to post vacancies in the Environmental Services department, as required under the collective agreement. Evidence showed postings were made and provided to the chief steward, and any claims related to past postings were deemed out of time and thus inarbitrable.
In addition, SEIU’s original allegation of unlawful contracting out was withdrawn during the proceedings. The union conceded there had been no layoffs caused by the outsourcing arrangement, a necessary condition for a breach of Article 12 of the agreement.
Compass found to be the true employer
In the final analysis, the arbitrator upheld the structure of the long-standing relationship: Westside contracts Compass to deliver environmental services, and Compass, not Westside, employs and manages the workers. While the Compass employees were deeply integrated into the workplace, they were found to be under Compass’s control, supported by a robust bargaining relationship with LIUNA.
“This is not a case in which the employer in the dark of night sought to bring in contractor workers to perform bargaining unit work,” the arbitrator wrote. “The relationship between Westside and Compass has existed for decades and a bargaining relationship between Compass and LIUNA has existed for more than a decade.”
The grievance was dismissed in its entirety.
For more information, see HCN-Revera Lessee v Service Employees International Union, Local 1 Canada, 2025 CanLII 61018 (ON LA).
