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Home My WebLink About2021-0271.Union.24-09-03 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0271; 2021-0439 UNION# 2021-0999-0015; 2021-0999-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION James Craig Morrison Watts Hurtado Counsel FOR THE EMPLOYER Sean White Treasury Board Secretariat Legal Services Branch Counsel HEARING CONFERENCE CALL July 20, 2022; October 11, 2023; July 11, 2024 - 2 - Decision [1] I have two Union grievances before me that are identically worded. The grievance filed under the Unified Collective Agreement is dated April 9, 2021, and the grievance filed under the Corrections Collective Agreement is dated April 28, 2021. A reference in this decision to the “Union grievance” includes both grievances. The statement of grievance reads as follows: The Union grieves that the Employer has violated the Collective Agreement Articles 2 (“Management Rights”), 3 (“No Discrimination/ Employment Equity”), and 39 (“Supplementary Health and Hospital Insurance”), and any other applicable Articles, and any other applicable legislation as well as Memorandum of Settlement dated December 15, 2009, by failing to provide insured benefits that have been contracted for. Specifically, the Employer has failed to provide coverage for reimbursement of the cost of diagnostic procedures. The settlement desired is set out as follows: 1. A declaration that the Employer breached Article 39; 2. An order that the Employer provide coverage for reimbursement of one hundred percent (100%) of the cost of diagnostic procedures; 3. An order to make whole any employee negatively affected; and 4. Any other remedy deemed appropriate by the Arbitrator. [2] The essence of the grievance is a claim that the Employer contravened the Collective Agreement and a Memorandum of Settlement dated December 15, 2019 (the “2009 MOS”) by not providing insured benefits contracted for, namely by not providing coverage for the cost of diagnostic procedures. [3] The Employer has made two motions that request the dismissal of the Union grievance. In its first motion it takes the position that the Union has failed to establish a prima facie case for a breach of the Collective Agreement. The - 3 - essence of the Employer’s position on its second motion is that I do not have the jurisdiction to provide the remedy sought by the Union because the parties have agreed that the real subject matter of the grievance, namely the denial of four individual claims, are to be addressed by the Claims Review Subcommittee, a subcommittee of the Joint Insurance Benefits Review Committee (“JIBRC”) as set out in Appendix 4 of the Collective Agreement. [4] The Union and the Employer each filed a book of documents. Since no oral evidence was called on the motions, the material in the books of documents provided the factual context for dealing with the Employer motions. Some of the materials included in the books of documents are as follows. There is the Union grievance as set out above which, among other things, seeks a declaration for the violation of the Collective Agreement. There are two letters of particulars provided by Union counsel, one dated July 16, 2022, and a second one dated September 30, 2022. In the first letter, the Union indicated at paragraph 2 that, …“Some OPSEU members who have had diagnostic procedures used to obtain a diagnosis, which have been recommended by a doctor, which are not covered by a government plan (e.g. OHIP), have had their claims for reimbursement denied.” At paragraph 4, after noting that it was aware of a handful of instances where members have had reimbursement claims for medically necessary diagnostic procedures denied, the Union set out four examples. The examples related to a hearing test, an MRI, an ERA test and a Covid-19 anti-body test. The remedies sought as set out in paragraph 5 were orders directing the Employer to adhere to the 2009 MOS and directing the Employer to reimburse the four members in its examples for out of pocket expenses related to the diagnostic procedures. I was advised that the denial of reimbursement claims of the four OPSEU members had not yet been referred to the Claims Review Subcommittee for determination. [5] The material provided included article 39 of the Collective Agreement, which contains the Supplementary Health & Hospital Plan (“SH&H Plan”) and the Liberalization List dated May 1, 2003, that is incorporated by article 39.2.16 of the Collective Agreement. The SH&H Plan and the Liberalization List do not expressly - 4 - provide for coverage for diagnostic procedures. The material also included the Confederation Life Policy (the “Insurance Policy”) now administered by Manulife. As referenced at page 27, the Insurance Policy effectively includes coverage at 100% for diagnostic procedures intended to obtain a diagnosis that meet the definition of eligible expenses. As reflected in the Employer’s brief, the eligible expenses can be described as follows: Eligible expenses are those expenses incurred for services, treatments or supplies that are: 1. recommended as necessary by a physician, 2. are reasonable and customary (as determined by Manulife), 3. in the area where the employee resides, and 4. subject to certain exceptions (e.g. claims will not be paid that are otherwise payable by a government insurance health plan such as WSIA or OHIP). [6] The material included an Employer document entitled “A Guide To Your Benefits” where the following is set out in relation to diagnostic procedures: Reimbursed at 100% of eligible expenses incurred for diagnostic procedures used to obtain a diagnosis and recommended as medically necessary by a licensed physician and not covered by a government plan or provincial health plan (e.g. OHIP) . Diagnostic procedures performed in a hospital are not covered. . Diagnostic procedures required for travel, periodic health examinations or examinations required for the use of a third party (e.g. insurance purposes, court order) are not covered. [7] I was also provided with an earlier OPSEU grievance and the 2009 MOS. In an OPSEU policy grievance dated August 20, 2008, the Union alleged that the Employer contravened article 39 of the Collective Agreement as it related to the Insurance Contract that provided for 100% coverage for diagnostic procedures. It was the 2009 MOS that settled what it referred to as the Diagnostic Procedures - 5 - Policy Grievance. The 2009 MOS set out that it was in relation to a hearing under article 22.9.2 & Appendix 4 of JIBRC. Paragraphs 2 and 3 of the 2009 MOS provide as follows: 2. The parties agree that the Supplementary Health and Hospital plan continue to cover one hundred percent (100%) of those eligible expenses incurred for diagnostic procedures used to obtain a diagnosis and recommended as medically necessary by a licensed physician and not covered by a government plan or provincial plan (e.g. OHIP), including such diagnostic procedures as listed in Appendix “A”; 3. The Employer agrees that for those diagnostic procedures only partially covered by a government plan or provincial health plan (e.g. OHIP) the uncovered portion is reimbursable under our plan to the extent legally permitted in accordance with paragraph 2 above; [8] I was also provided with article 22 and Appendix 4 of the Collective Agreement. Within article 22 - Grievance Procedure is a specific provision which addresses an insured benefits grievance. Article 22.9 provides as follows: 22.9 INSURED BENEFITS GRIEVANCE 22.9.1 An allegation that the Employer has not provided an insured benefit that has been contracted for in this agreement shall be pursued as a Union grievance filed under Article 22.13 (Union Grievance). 22.9.2 Any other complaint or difference shall be referred to the Claims Review Subcommittee of Joint Insurance Benefits Review Committee (JBRIC), established under Appendix 4 (Joint Insurance Benefits Review Committee), for resolution. [9] The relevant part of section 6 of Appendix 4 provides as follows: - 6 - Claims Review Committee (a) There shall be a subcommittee whose mandate is to review, and make decisions on, complaints or differences involving the denial of insured benefits under the Central Collective Agreement, when such issues have not been resolved through the existing administrative procedures, save and except, a complaint or difference arising under Article 22.9.1 (Insured Benefits Grievance) of the central Collective Agreement. The subcommittee shall be composed of two (2) representatives selected by the Employer, two (2) representatives selected by OPSEU, and an independent third party who is agreed to by both parties. [10] In support of the Employer’s position on the motions, counsel relied on the following decisions: OPSEU (Martin et al.) and Ministry of Community and Social Services, 2015 CanLII 60449 (ON GSB Anderson); and, OPSEU (Seguin et al.) and Ontario Science Centre, 2012 CanLII 6203 (ON GSB Briggs). [11] In addition to OPSEU (Martin et al.), supra, and section 4:7 and Appendix IF and IF:3 in Brown & Beatty, Canadian Labour Arbitration, 5th Edition, Union counsel referred me to the following decisions: OPSEU (Barker) and Ministry of the Solicitor General, 2020 CanLII 20374 (ON GSB Gee); OPSEU (Ryall) and Ministry of the Solicitor General, 2022 CANLII 106478 (ON GSB Lynk); Amalgamated Transit Union - Local 1587 (Sumesh) and Metrolinx - GO Transit, 2019 CanLII 42411 (ON GSB Wacyk); and, Fernandez v. Bayer Inc., 2023 ONCA 629. [12] It is evident from the submissions on the motions that there is a significant disagreement between the parties as to where the obligation to cover the cost of diagnostic procedures can be found. The Union takes the position that the obligation is in the Collective Agreement and in the 2009 MOS. Simply put, the Employer disagreed with the Union’s position. I believe that the parties recognize - 7 - that this significant issue cannot be resolved on these motions. As Employer counsel noted, the determination of this issue would likely require some evidence. [13] Focusing on paragraph 4 of the particulars letter dated July 16, 2022, the essence of the Employer’s no prima facie case motion is that no facts have been alleged by the Union that could lead to the conclusion that all of the requirements for coverage are met in the denied claims. The Union submitted that its particulars are sufficient, but if I found that they are not sufficient, the remedy is to direct the Union to provide further particulars, and not to dismiss the grievance as requested by the Employer. In reviewing the particulars as a whole, including paragraph 2 in the letter dated July 16, 2022, I am satisfied that the particulars provided by the Union are sufficient to establish a prima facie case. However, the provision of more specific details about the denied claims would be useful for the purposes of this proceeding. With this in mind, I direct the Union to provide more details about the denied claims set out in paragraph 4 of the letter of particulars dated July 16, 2022. [14] On the Employer’s no jurisdiction motion, I note that article 22.9.1 allows for the filing of an insured benefits Union grievance and article 22.9.2, in essence, provides that the denial of individual claims shall be referred to the Claims Review Subcommittee. Appendix 4 clearly provides that Claims Review Subcommittee’s mandate is not to deal with an insured benefits Union grievance. As is the case with the Union grievance before me, any Union grievance filed under article 22.9.1 would be based on the failure of the administrative procedures to adequately address individual employee claims. The Employer claims on this motion that I do not have the jurisdiction to award the remedy requested by the Union. Since I clearly would have the jurisdiction to declare that the Employer has contravened the Collective Agreement, I find that its motion cannot succeed. Whether I have the jurisdiction to provide a remedy for the individuals whose claims were denied is not an issue that I am inclined to address at this stage of the proceeding. Even if I determined that I did have the jurisdiction to address the individual claims relied on by the Union to substantiate its Union grievance, I might still find it appropriate to - 8 - have those claims addressed by the Claims Review Subcommittee. One of the positions that the Employer took on this motion is that I should “order the parties to follow the proper agreed-upon process for disputing individual insurance claims.” I am attracted by this Employer request. In my view, a determination by the Claims Review Subcommittee of the four denied claims referred to in paragraph 4 of the Union’s letter dated July 16, 2022, may help in contributing to the factual context of the Union grievance. Such a determination may also contribute to a resolution of the Union grievance. [15] Assuming that the four denied claims have not yet been addressed by the JBRIC process, I direct as follows. The Union grievance will be held in abeyance until the matters referred to in paragraph 4 of the Union’s letter dated July 16, 2022, and any other denied claims that the Union intends to rely on in support of the Union grievance, are referred to and addressed by the Claims Review Subcommittee. Once such denied claims for the cost of diagnostic procedures have been so addressed, the Union may request that the Union grievance be brought back on for a hearing. [16] For the reasons set out above, the Employer’s motions are hereby dismissed. Dated at Toronto, Ontario this 3rd day of September 2024. “Ken Petryshen” Ken Petryshen, Arbitrator