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HomeMy WebLinkAbout1986-2000.Hayford.88-08-20ONT.4RlO EHP‘OYESDEL* COURONNE CROWNEMPLOYEES OEL’ONTARIO GRIEVANCE CQMMISSION DE ;zETl&MENT REGLEMENT DES GRIEFS 2000/86 IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Robert Hayford) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.J. Roberts Vice Chairperson F. Taylor Member M. O’Toole Member For the Grievor: - For the Employer: Hearing: P.J. Lukasiewicz COIlI-S&!l Gowling & Henderson Barristers and Solicitors J.F. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services May 20, 1988 DkCISION This is a carpooling case. The Union claimed on behalf of the grievor that he was entitled to take his 0h.n car to a mandatory training course because his insurance coverage did not protect him against liability to passengers in the case of an accident nor did it protect~him on a no-fault basis for injuries sustained while carpooling with another Correctional Officer. I. Factual Backsround. The evidence.disclosed that the grievor was a Correctional Officer at the Millbrook Correctional Centre near Peterborough, Ontario. At the rimebf the events ieading up to the grievance, in the. Fall of 1986, he was a CO1 and was required to attend certain mandatory training courses in order to qualify to become a C02. One of these courses, known as Phase 2, was a two-week in-residence program in Kingston, Ontario. On October 31. 1986, the grievor land two other COl's were notified by Mr. R. W. Ellis, the Stafe Training Officer, that they had been selected to attend this course from December l- 19, 1986. In his letter, Mr. Ellis stated, "There will be 3 participants attending this course and i vehicle . . . tisl authorized for transportation p'urposes. Disc-s% these travel 2 arrangements with your fellow participants and submit to be (sic) by November 10, 1986. the name of then participant that will be driving . . . [his] car. . .." The grievor testified that, as matters turned out, one of the participants quithis job before the scheduled commencement of the course, leaving just him and Mr. Campbell, the other COl, to discuss~ travel arrangements. According to the grievor, both : he and Mr. Campbell wanted to take their own cars. The main reason that he wanted to take his car, the grievor said, was that he was given to understand from his insurance agent that he would not be covered by his own insurance policy if he was a passenger in Mr. Campbell's car and Mr. Campbell would not be covered ,by the grievor's policy if he was a passenger in the grievor's car. The grievor. added that he advised Mr. Ellis of this on several occasions but Mr. Ellis refused to authorize both Officers to take their own cars. Finally, the grievor and Mr. Campbell decided that the authorized driver would be Mr. Campbeil. The grievor said that it was agreed that Mr. Campbell would collect the money for the mileage and he would wait and put in a claim for it when he returned from the course. As far as he knew, the grievor stated, Mr. Ellis was informed of this decision and Mr. Campbell was paid. 3 The grievor, however, was not. All that he was allowed were his time credits while travelling under Article 23 of the Collective Agreement. His claim for mileage under Article 22 was denied. On January 16, 1987, the grievor filed the grievance leading to the present proceeding. II. The Submissions of the Parties ~. In an excellent argument, counsel for the Union made the following two submissions: (1) There was a substantial risk that the grievor's automobile insurance policy would not have (a) covered Mr. Campbell while travelling in the grievor's car; nor (b) covered ~. the grievor while travelling in Mr . Campbell's car; and (2) In, light of this risk, it was an unr.easonable exercise of ', management's discretion under the collective agreement to require the grievor to carpool with Mr. Campbell. The Board did not have the benefit of submissions from the Ministry regarding the proper interpretation to apply to the grievor's insurance policy. Counsel for the Ministry submitted that it would require expertise that neither he nor the Board possessed to make such a determination. Moreover, counsel submitted, the grievor had not proven his case because the insurance policy that was important was that of Mr. Campbell. the authorized driver. This was not entered into evidence, nor was any evidence called regarding the state of Mr. Campbeii's 4 insurance coverage. In the absence of evidence that Mr. Campbell's policy would not have covered the grievor if he rode with him as a passenger, counsel submitted, the case for the grievor must fail and the grievance must be dismissed. III. The ADDroach of the Board to the Issues: We admit to some trepidation at the thought of making a definitive pronouncement in the area of insurance law. The Board acknowledges that it is a specialized tribunal, adapted to deal with labour-management issues. We are not at all familiar with the nuances that might exist in the insurance field. For example, we would not be aware of words or phrases which have attained special meaning in the context of insurance law. Our discomfort grows even more pronounced where, as here, we do not r. have the assistance of submissions from both parties as to the interpretation at issue. Yet even with all of that, we do not -doubt that we have pendant jurisdiction to decide insurance and other non-labour issues so long as their determination is essential to the resolution of a grievance which is properly before the Board. There is no doubt that the grievance at hand is properly before the Board and the insurance issue raised by counsel fcr the Union is essential to its resolution. The issue, simply stated, is whether there was a substantial risk of exclusion of 5 the grievor's insurance coverage if he carpooled with Mr. Campbell. We think that the existence of a substantial risk is demonstrated once the submissions upon the issue, properly assessed, establish an arguable case for .exclusion of coverage. It seems to us that if an insurer reasonably believed it had an arguable case relieving it of liability it likely would deny the claim in question rather than pay it. Faced with such a development, an insured would find cold comfort in the prospect of winning against the insurer after a long court battle. As a practical matter, then, the existence of an arguable case relieving the insurer of liability will indicate the presence .of a substantial risk of exclusion of coverage. In the following sections of the award we will first address the insurance issue. Then we will turn to consider the impact of our resolution of this issue upon the claim of the grievor that it was an unreasonable exercise of management's discretion under the Collective Agreement to require him to carp001 with Mr. Campbell. IV. The Insurance Issue Counsel for the Union established that most, if not all, of the provisions of automobile insurance policies in Ontario are 6 mandated by statute and, as such, are identical. He directed the attention of the Board to several provisions' of the Standard Automobile Policy prescribed in Ontario under Part 6 and Schedule C of the Insurance Act, R.S.O. 1980. c. 218, as amended. It was pointed out that under the Exclusions to Section B - Accident Benefits, s.(l)(d) (vi). the grievor would not be covered while travelling as a passenger in another automobile if it was used "for compensation or hire or for commercial delivery." Counsel also pointed out that the Excluded Uses of the General Provisions of the Standard Automobile Policy, s.S(c) (ii), provided as follows: Unless coverage is expressly given by an endorsement of this policy, the Insurer will- not be liable under this policy while:. . . . (c) the automobile is used . . . for carrying passengers for compensation or hire: provided that the following uses shall not be deemed to be the carrying of passengers for compensation or hire: (ii) the occasional and infrequent use by the insured of his automobile for the carriage of another person who shares the cost of the trip: . . . . Because the grievor's policy did not have an express endorsement permitting the carrying of passengers for compensation or hire, counsel submitted, this meant that his Insurer would not be liable if he got into an accident while doing so. It went without saying, counsel added, that it was not a permissible 7 sharing of the cost of the trip 'if it was the Ministry which did the compensating and not the passenger. The payment of mileage by the Ministry in a Ministry- mandated carpooling arrangement, counsel submitted, constituted carrying passengers for compensation or hire. In support of this proposition counsel placed before the Board two decisions of the Supreme Court of Canada, Teasdale v. MacIntvre (19681, 69 D.L.R. (2d) 1, and Ouelette v. Johnson (19631, 37 D.L.R. (2d) 107. Wee also were referred to Lemieux vi Bedard, 119531 O.R. 831 (Ont. C.A.). None of these cases interpreted the relevant provisions,of the Ontario Standard Automobile Policy. They interpreted s. 105(2) of the Hiahway Traffic Act, R.S.O. 1960, c. 172. which /_ read as follows: (2) Notwithstanding subsection 1, the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in, or upon, or entering, or getting on to, or alighting from the motor vehicle. [later am. 1966, c. 64, s. 20(2)1 Under s. 105(21, the owner or driver of a motor vehicle only became liable for the negligent injury or death of his passenger when his vehicle was "operated in the business of carrying passengers for compensation." Otherwise, no liability attached. 8 Counsel stressed that the words, "operated in the business of carrying passengers for compensation", were very close to the relevant words of the Standard Automobile Policy, "used . . . for carrying passengers for compensation or hire." As a result, he su'bmitted, the interpretation applied by the courts to the former should be regarded as decisive of the meaning of the latter. In Teasdale v. MacIntyre, m, the Court determined whether an .automobile was "operated in the business of carrying passengers for compensation" within the meaning of S. 105(2) of the Highway Traffic Act, according to whether "the arrangement between the parties was of a commercial nature." u. at p. 5. 'If a commercial arrangement were found, the Court said, "the amount of the fee t,o be paid . . . becomes irrelevant." Id. In that case, the panel of the Cow t essentially divided upon the application of this test to the f.acts. Apparently, the plaintiff and defendant agreed to use the defendant's car on a joint camping trip and share the cost of,gas and oil. During the trip, the defendant negligently got into an accident and the plaintiff was injured. The majority , per Spence, J., concluded that the driver was not liable for the plaintiff's injuries. The majority reasoned that this was not a commercial arrangement because there was no element of a contract of carriage. spence. J. said, "The arrangement, rather, in my view, was that of a 9 joint adventure, not, in this particular case, an adventure in trade but in adventure in recreation." Id. at p. 6. Speaking for himself and Judson J., Cartwright, C.J.C., dissented, saying: In my opinion, these cases [including Oulette v. Johnson, glJg&.l established the rule that a driver, who by negligent driving causes injuries to a passenger ,in his car, is not relieved from liability if there is a contract in existence between the driver and the passenger by .the terms of which the passenger is under a legal obligation to pay the driver for carrying him. This rule is applicable although the agreement to pay relates to a single and isolated journey and the driver is not otherwise engaged in the business of carrying passengers for compensation and regardless of the manner in which the amount to be paid is to be calculated. In the case at bar . . . that the object of that journey, was pleasure and not business appears to me to be irrelevant. I find myself unable to distinguish the case at bar from that of Oulette v. Johnson. It may be that the choice of the phrase "an arrangement of a commercial nature" in that case was not a particularly happy one but read in context it is equivalent to "an arrangement under which an enforceable obligation to pay is assumed by the passenger" . . . . Id. at p. 2. Regardless of the fact that the object of the trip was pleasure and so long as the passenger assumed an enforceable obligation to pay I as he did in Teasdale, Cartwright, J. would have concluded that the defendant's car was "operated in the business of carrying passengers for compensation." ,’ . . 10 The other two cases cited by counsel, Oulette v. Johnson and Lemieux v. Bedard, sup~a, need not be dealt with at length. Basically, they stand for the principle that once is enough. “A motor car can . . . be. operated in the business of carrying passengers for compensation, even if so operated for only one day or on one occasion. 'I Lemieux at p. 842. There are some distinctions between these cases and the one at hand. First, they were construing a different statute which contemplated precisely the opposite result. from the provisions at hand. Concluding under the Highway Traffic Act that the defendant's car was "operated in the business of carrying passengers for compensation" meant that the defendant was liable 'for the plaintiff's injuries. Here, reaching the conclusion that the car was "used for carrying passengers for compensation" T, within the meaning of the Ontario Standard Automobile Policy exciudes liability on the part of the defendant insurer. 'Particularly in light of the way in which Cartwright, J. formulated his dissent in Teasdale, m, we cannot say that the difference in result might not colour the interpretation adopted by a court. Secondly, none of the cases dealt with the payment by a third party, i.e., the Ministry, of compensation to the owner of the car used in the carpooling arrangement. The cases. and the principles that they enunciated, were specific to payment being 11 made by the passenger. This might not be an inconsequential distinction. St seems that where the passenger pays. it is easy to conclude that the payment is for carrying him. Where the Ministry pays -- and the mileage payment is the same regardless of whether the driver is alone or with passengers -- it seems more difficult to relate the payment to some sort of contract of carriage. Finally, there is some dissimilarity between the language used in the Highway Traffic Act and the Standard Automobile Policy. The former refers to "operating" a vehicle in the “business” of carrying passengers for compensation. The latter merely refers to "using" an automobile for carrying passengers for compensation. This does not seem to be a very significant distinction; In all of the cases cited by counsel the "business" ,, language of the Highway Traffic Act was given so little significance that even one use of the vehicle for carrying 'passengers for compensation was held to satisfy the "business" requirement. In our view, none of the foregoing distinctions seems persuasive enough to undermine significantly the strength of the 'submissions of counsel for the Union. It is merely speculative whether the difference in result between the two statutes would colour the interpretation adopted by a tour:. Payment by a third party through a third party beneficiary contract is a phenomenon 12 well known to the law. The cases have discounted consideration of the size of the payment and the way In which it was calculated. There is no denying that the relevant words used in the two statutes are close. For these reasons, we conclude that counsel succeeded in establishing an arguable case that under the Ontario Standard Automobile Policy the'payment of mileage to the owner of a car used in a Ministry-mandated carpooling arrangement constitutes the use of the car "for carrying passengers for compensation", thereby (al excluding the liability of the owner's insurer in the absence of a specific endorsement expressly granting coverage for such use; and Ib) excluding the no-fault liability of the passengers' insurers. As we indicated previously in this award, we think that the presence of, an arguable case for exclusion of coverage establishes the existence of a substantial risk of exclusion. Accordingly, we must conclude that when Mr. Ellis required the grievor to carpool with Mr. Campbell, there was a substantial risk that the grievor's automobile insurer would not have (a) covered Mr. Campbell while travelling in the grievor's car: nor (b) covered the grievor while travelling in Mr. Campbell's car. We turn now to examine whether in light of this risk, it was an unreasonable exercise of management's discretion under the Collective Agreement to require the grievor to carpool with Mr. Campbell. ,, i I 13 v. The Exercise of Management's Discretion Under the Collective Asreement Under the jurisprudence developed by the Grievance Settlement Board, a Ministry is entitled to require employees to carp001 with each other, so long as this requirement is reasonable. Re Vernon and Ministry of Transportation (19881, G.S.B:#1485/86 (Watters), at p. 6. There seems to be little doubt that it would have been unreasonable to require the grievor to carpool with Mr. Campbell in the face of a substantial risk of loss of insurance coverage. It follows that management would not have had authority under the Collective Agreement to require the grievor to take Mr. Campbell as, a passenger in his car once management knew, or had r. reason to know, that to'do so would incur a substantial risk that the grievor would be excluded from insurance coverage in the course of the trip to and from Kingston. To do so would have been to act unreasonably. This, of course, is not what happened in the present case. BY making Mr. Campbell the authorized driver, the Ministry essentially was requiring Mr. Campbell to take the grievor as his passenger. If the terms of Mr. Campbell's insurance policy were the same as the grievor's, and he did not have the benefit of an endorsement expressly giving him coverage for the use of his 14 automobile for carrying passengers for compensation or hire, we would have reached the sane result as above:. Not only would it have been unreasonable to force Mr. Campbell to carry the grievor under such circumstances but it also would have been unreasonable to force the grievor to ride as a passenger on Ministry business in a vehicle which was uninsured, thereby depriving him of readily accessible recourse to compensation in the case of accident and injury. Accordingly, if it had been : shown that Mr. Campbell did not have the necessary endorsement in his insurance coverage, we would have been inclined to conclude that, once again, the Ministry was not authorised under the Collective Agreement to require the grievor to carpool with Mr. Campbell. , . Here, however, the case for the grievor proceeded on a T. different footing. It was submitted that; regardless of the insurance coverage that Mr. Campbell might have had. it was unreasonable to require the grievor to cargo01 with Mr. Campbell in this faahionbecause of the substantial risk that he would not be covered by the no-fault benefits of his own insurance policy while travelling. in Mr. Campbell's car. We think that this submission sweeps much too broadly to be acceptable. Accepting this submission would essentially require us to conclude that management would act unreasonably every time it required an employee to travel on Ministry business in an 15 airplane, train. bus or even a taxi. Our understanding is that in none of these situations would the grievor retain recourse to the no-fault provisions of his own automobile insurance policy. In the event of an accident, he would be forced to rely' upon, at least in the first instance, the insurance coverage provided by the carrier. We are not prepared to say that requiring an employee to travel on business in one of these carriers -- a fairly- common occurrence -- is unreasonable because it denies employees recourse to the no-fault provisions of their own automobile insurance policies. Yet, it seem to us, this is what we would have had to conclude in order to accept this particular submission on behalf of the grievor. Accordingly, we must find that the grievor was not entitled to reject the carpooling arrangement required by management in i. favour of driving his own car to and from Kingston. It was not proven that in the circumstances of this case, the grievor was "required" to drive his own car, within the meaning of Article 22 of the Collective Agreement. See Re Dymond and Ministry of Correctional Services (19831, G.S.B. #377/82 (Roberts), at pp. 9- 10. As a result, we reject the claim for mileage made by the grievor. 16 The grievance is dismissed. DATED at London, Ontario, this 20th day of Septenber, 1988. F. Taylor, Member .(ABdendum Attache- . O'T%ole, Member ADDENDUM While 1 concur in the result reached by the majority, I must dissent from part of the reasoning that 2ed to that result. Specifically, I dissociate myself from their extensive analysis of certain exclusions under the Standard Automobile Policy prescribed in Ontario. In my view, it was unnecessary to engage in this exercise due to the lack of any evidence regarding the insurance policy of the authorized driver, Mr. Campbell. In effect, the majority ignored the jurisdictional limitation they recognized as appropriate at page 4 by determining an issue not “essentiai to the resolution of a grievance which is properly before the Board.” The proper disposition of the grievance, in my opinion, was to dismiss it on the basis of a failure by the Union to make out a prima facie case regarding the relevant insurance policy. Accordingly, the determina- tions made by the majority with respect to insurance law are obiter dicta and not binding on any panel of the Board dealing in future with a similar issue. In keeping with the majority’s “trepidation at the thought of making a definitive pronouncement in the area of insurance law”, it seems to me that it would have sufficed to admonish the Employer to seriously re-assess the insurance liability implications of its practice regarding carpooling and to be prepared to address the argument of the Union in any future case where it properly arises. Even presuming it was appropriate for the majority to make a definitive statement regarding insurance law, I am not personally convinced of the validity of that statement due to the various “distinctions” considered but rejected by the majority at pages 10,to 12. I believe these “distinctions” to be much more significant than the majority is prepared to acknowledge. i, .