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HomeMy WebLinkAbout2011-2422.Coelho.14-05-12 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2422, 2012-2253 UNION#2011-0290-0059, 2012-0290-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Coelho) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Michael Lynk Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Caroline Cohen Ministry of Government Services Legal Services Branch Counsel HEARING February 3, 2014 - 2 - Decision Introduction [1] This is the second interim decision issued by the Grievance Settlement Board with respect to the various grievances filed by OPSEU on behalf of Ms. Dolly Coelho (“Ms. Coelho” or “the Grievor”). These grievances pertain to her disability leave and the ensuing accommodation process in the aftermath of a work injury that she suffered in August 2009 when she was employed as a Youth Service Officer with the Ministry of Children and Youth Services (MCYS) at the Roy McMurtry Youth Centre in Brampton. [2] The first interim decision was released in July 2013, and dealt with whether the mediated negotiations between the Union and the Employer to settle a grievance filed by the Union on behalf of Ms. Coelho had crystallized into an enforceable agreement. The ruling – OPSEU v. Ontario (Ministry of Children and Youth Services) (Coelho), 29 July 2013 (http://www.canlii.org/en/on/ongsb/doc/2013/2013 canlii74176/2013canlii74176.html) – concluded that an enforceable agreement had been reached and was binding on the parties. However, other grievances filed on behalf of Ms. Coelho remain outstanding. [3] This interim decision deals solely with a preliminary objection raised by the Employer. It submits that two of the grievances filed by the Union on behalf of Ms. Coelho – dated 15 March 2012 and 16 May 2012 – are moot, and should be dismissed. Although the two grievances are worded in a very general fashion, their thrust is that the Employer failed to accommodate Ms. Coelho in the period between 19 March and 16 May 2012, when the Grievor was back in the workplace on a work-hardening program. [4] The Union resists the Employer’s request to deem the two grievances moot. It has requested that the Employer’s preliminary objection should be dismissed and the two grievances should be heard and adjudicated on their merits. [5] The parties have filed a detailed Agreed Statement of Facts (ASF), which has greatly expedited the arbitration and decision-making process. The ASF is found in paragraph 6 of this interim decision. In addition, the parties have submitted additional documentary evidence and offered substantive arguments in support of their respective positions. I have briefly summarized the additional evidence below. [6] In the ASF, the parties have put one word (in sub-paragraph vii below) in bold. They have not agreed on its inclusion, but, in the spirit of professional co-operation, they have consented to place it in the ASF without prejudice to their respective positions. In my view, nothing significant turns on its presence one way or the other in terms of this interim decision. I should also mention that the documents mentioned in the ASF are not included in this award. - 3 - Agreed Statement of Fact for Employer’s Preliminary Motion i. This agreed statement of fact is made for the limited purpose of arguing the Employer’s preliminary motion only and is without prejudice to either party’s position on the merits of the grievances. ii. Ms. Coelho was a Correctional Officer at Hamilton Wentworth Detention Centre Youth Justice Unit from October 23, 2006 to March 31, 2009 and a Youth Services Officer at Roy McMurtry Youth Centre from March 31, 2009 to the present. iii. Ms. Coelho suffered a work-related injury on August 13, 2009. The Grievor claimed and was approved for WSIB benefits as of the date of her injury. Pending consideration by WSIB of her claim, she was continued on her full salary by the Employer. WSIB took over payments of her income benefits under WSIB as of November 1, 2010. iv. The Grievor remained off work as a result of her injury from the date of the injury until March 19, 2012, at which point she returned to work for a two month period in the circumstances described below. She went off work on sick leave on May 17, 2012 and has remained off work since then. v. Following a six month waiting period from the date of injury, Ms Coelho also qualified for LTIP benefits effective February 14, 2010, to February 13, 2012. The Grievor was advised of approval of LTIP for this period on July 19, 2011 by the attached letter from Manulife. vi. Ms Coelho could not be accommodated in her home position as a Youth Services Officer due to her physical limitations and health and safety concerns inherent in daily activities with youth. Accordingly she was placed in the Health Reassignment Program effective May 18, 2011. vii. As set out in WSIB’s letter dated December 2, 2010 (attached) objective clinical findings substantiated a permanent neck, upper back, left shoulder and left hand injury. Ms Coelho reached maximum medical recovery on November 4, 2010. The Grievor’s restrictions were [also] set out in an assessment from her physiotherapist (attached). Her medical team’s directions as to her restrictions are set out in the attached document. The Union takes the position that the WSIB summary of her restrictions is not complete and does not fully reflect the restrictions directed by her doctor. viii. In December, 2011, the Grievor provided WSIB and the Employer with a new report from her medical team as attached. ix. In February 2012, Patti Anderson of WSIB contacted Jeckie Wong, HRA, to seek the Employer’s cooperation to find a placement for Ms Coelho in an administrative/clerical - 4 - role. At the time, the Employer said that RMYC Personnel Department had a temporary vacancy as a clerk in the payroll department. The Employer said it was willing to train Ms Coelho in this position to broaden her qualifications and skills in administrative and personnel functions with a view to enhancing her opportunity to be health-reassigned into an administrative position. WSIB concluded that the accommodation was suitable and she was able to perform the duties outlined in the modified work plan. WSIB later confirmed its decision that the duties and modified work plan were suitable in a letter issued May 10, 2012 (attached). There is no appeal of this issue pending. x. The Grievor and the Union said she could not perform the proposed duties within her restrictions and that the assignment was not suitable. WSIB advised her in this period that it would no longer cover her benefits if she did not accept the modified work plan. In fact subject to the payments for hours worked in March and April, 2012 as described in Paragraph 13 below the Grievor did not receive any WSIB benefits after March 1, 2012. xi. On March 13, 2012 Ms Coelho and her union representative met with the WSIB representative and the Employer (the latter attended the meeting by conference call) to discuss the modified work program. Although the Union and Ms Coelho agreed that she could work at other positions within her restrictions and limitations, their position was that the modified work program was in fact outside her restrictions and limitations. The Employer directed the Grievor to report to work on March 19, 2012 in accordance with the modified work program. She complied with those instructions. xii. A grievance was filed March 15, 2012 and alleged discrimination by the Employer against Ms Coelho on the basis of her disability. The grievance is attached. xiii. The modified work program consisted of two phases, in order to ease Ms Coelho’s return to work after an absence of over two years: she was to work in a Ministry of Environment (MOE) Office in Burlington for work hardening purposes before starting in the temporary assignment in the payroll position in RMYC. Ms Coelho started the phase 1 at the MOE in Burlington on March 19, 2012 and continued there for the next 5 weeks. She did not work full hours in Phase 1. She was eventually paid by WSIB for the hours she worked. She then started the phase 2 assignment at RMYC on April 23, 2012 which was intended to last until September 7, 2012. From April 23, 2012, until she booked off sick on May 17, 2012, she was paid full wages by the employer for the hours she worked in this period; xiv. As noted Ms Coelho booked off sick on May 17, 2012. xv. A second grievance was filed on May 16, 2012. Ms Coelho claims the modified work program was not within her restrictions and limitations and claims that in fact it worsened her condition. - 5 - xvi. WSIB did not pay benefits for any period of time following April 23, 2012 on the basis that, in its view, the modified work program was suitable. xvii. On May 22, 2012, Ms Coelho sought reinstatement to LTIP benefits as per the attached letter dated May 22, 2012. In the period May 17, 2012 to August 17, 2012 Ms Coelho was paid Short Term Benefits under the Collective Agreement from the remainder of her 2009 sick bank. xviii. On August 16, 2012 Ms Coelho was advised by Bruce England, her Local Union representative that a position had been found for her through the health reassignment process. She was also told earlier that day by Manulife that it had approved her benefits retroactive to February 13, 2012. She later advised the Employer that she was not able to accept the position identified by Health Reassignment Program because she was unable to work and was on LTIP. xix. On August 17, 2012 Manulife sent the Grievor and the Employer a letter confirming the information it had provided Ms. Coelho the day before that it had approved Ms Coelho’s appeal of benefits under LTIP beyond February 13, 2012, retroactive to February 14, 2012. The letter from Manulife Financial approving LTIP is attached. xx. Once the Employer learned that Ms Coelho’s LTIP (any occupation phase) had been approved and once she had confirmed that she did not wish to be assigned to the position offered to her on August 16, 2012, she was removed from the Health Reassignment Program. She remains on LTIP. xxi. The Union says that the treatment afforded Ms Coelho by the Employer beginning with the meeting of March 13, 2012, the direction that she return to work on the program established by the Employer and the conditions imposed on her during the return to work was discrimination based on Ms Coelho’s disability in breach of Article 3 and the Ontario Human Rights Code, an exercise of management rights contrary to the implied non-discriminatory requirement of Article 2, and a breach of Article 9. xxii. The Union claims compensation for all loss of income including losses arising from the exacerbation of Ms Coelho’s medical condition by the Employer’s breach of the Collective Agreement and the resulting diminution of her capacity to work, expenses incurred by Ms Coelho and damages for pain and suffering. xxiii. The Employer’s position is that Ms Coelho cannot claim that the Employer failed to accommodate her during the period from March 19, 2012 to May 16, 2012 because she claimed to have been, and the LTIP carrier found her to be, totally disabled from performing the essential duties of any gainful occupation for which she is reasonably fitted by education, training or experience. Alternatively, because the LTIP carrier - 6 - retroactively allowed LTIP benefits (any occupation) from February 14, 2012 onward, the issues raised by the grievances are moot. Additional Evidence [7] In addition to the facts detailed in the ASF, there are three other items of evidence that are necessary to include in this interim decision in order to present a sufficient evidentiary record. [8] First, in a letter dated 19 July 2011 from a Manulife case manager to Ms. Coelho, he stated to her that she was eligible for Long Term Income Protection (LTIP) benefits because she was considered to be totally disabled. Under the group policy, an employee, in order to be deemed to be totally disabled, had to satisfy the following condition: “...for the first 30 months of total disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him/her from performing the essential duties of his/her normal occupation.” [9] The letter also stated that Ms. Coelho’s eligibility for LTIP benefits would normally continue only up to 13 February 2012. The Manulife case manager explained that an employee under this group plan would become eligible for LTIP payments at the end of the initial qualifying period, which is 6 months after the disabling incident or illness, and the benefit period is for a maximum of 24 months. (In Ms. Coelho’s case, as her injury occurred on 13 August 2009, she became eligible for LTIP benefits on 14 February 2010.) Additionally, the letter said the following: “Please note that after the first 30 months of total disability, February 13, 2012, you will be eligible for continued benefits only if you are “...unable to perform the essential duties of any occupation for which you are reasonably fitted by education, training or experience.” [10] Second, Articles 42.2.3 and 42.2.4 of the Collective Agreement lay out the obligations surrounding the 6 month qualifying period and the 24 month eligibility period. They read: 42.2.3 The L.T.I.P. [Long Term Income Protection Plan] benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day-to-day basis after the six (6) month period. 42.2.4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his or her normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit period, the - 7 - inability of the employee to perform the essential duties of any gainful occupation for which he or she is reasonably fitted by education, training or experience. [11] When Ms. Coelho became eligible for LTIP benefits, her WSIB benefits continued, with her net monthly total LTIP payments modestly supplementing her workers’ compensation benefits. [12] When the 30 month period was reached, on 14 February 2012, Manulife ended the LTIP payments. As well, WSIB informed Ms. Coelho at roughly the same time that, in its determination, she was able to return to work on a modified basis, and it would end its payment of benefits to her if she did not agree to return to a work placement within her restrictions. As detailed in paragraph xi of the ASF, the Employer required Ms. Coelho to report to work. [13] As a result of the Employer’s direction, the Union and Ms. Coelho took the position that she could work in a modified position, but that the proposed clerical training was outside of her restrictions and limitations. The Union proceeded to file a grievance on 15 March 2012, which stated the following: I grieve the employer violated Articles 2, 3 (disability, duty to accommodate), 9 and any other applicable articles, related legislation and policies and procedures. It asked for full redress. [14] And third, the WSIB envisaged that Ms. Coelho would return to work in a two phase process, as per paragraph xiii of the ASF. During the first phase, which she began on 19 March, she worked at the Ministry of the Environment in a work-hardening position, and then assumed a clerical position. On 23 April, Ms. Coelho transferred to the Roy McMurtry Youth Centre, which was the second phase of her return to work program. She was scheduled to remain there until early September 2012. However, she was able to work only until 17 May 2012, when she booked off sick. Ms. Coelho has not been back at work since. [15] As a consequence, the Union and Ms. Coelho filed a second grievance on 16 May 2012. It stated the following: I grieve the employer violated Articles 2, 3 and any other applicable articles, related legislation and policies and procedures. It also asked for full redress. - 8 - Arguments Employer [16] Ms. Cohen, on behalf of the Employer, argued that the two grievances should be dismissed, or, alternatively, should be found to be moot, as per paragraph xxiii of the ASF. [17] The Employer placed particular emphasis on its submission that the grievances are moot. Ms. Cohen noted that, on 17 August 2012, Ms. Coelho’s LTIP benefits were reinstated as of 14 February 2012, before she had engaged in the return to work process. The basis of the restoration of Ms. Coelho’s LTIP benefits in August 2012 was that she was totally disabled as of 17 February. Thus, at the time of the events at the heart of the two grievances – mid- March to mid-May 2012 – it was totally unknown to the Employer that Ms. Coelho was totally disabled and could not perform any work at all. [18] Ms. Cohen pointed out that the heart of the Union’s grievances was that Ms. Coelho’s modified work program was responsible for worsening her health, as her modified work assignments were beyond her restrictions. If this was so, then the Employer could not be held responsible for any injuries to her health during the March to May 2012 period if it did not know at the time that she was totally disabled from any occupation. She noted that, according to paragraph xi of the ASF, the Union and Ms. Coelho had agreed in March 2012 that she could work, albeit at other job assignments within her restrictions and limitations, just not at the two job assignments – at the Ministry of the Environment and at the Roy McMurtry Youth Centre – where she was actually placed at. In their view, Ms. Coelho was not, at the time, totally disabled. [19] Extending her argument, Ms. Cohen asserted that, by accepting LTIP total disability benefits for this time period, Ms. Coelho was acknowledging that she could not be accommodated. This was reinforced by the fact that, on 16 August 2012, a health reassignment position had been found for her, which she declined because, on the same day, her request for the reinstatement of her LTIP benefits had been approved. [20] Ms. Cohen asked whether the Employer can be responsible for something that it had no knowledge of. Can it be liable for directing Ms. Coelho to accept the return to work assignments in mid March 2012, when it had no information or reliable evidence that Ms. Coelho could not work? The Employer’s actions must be judged on the basis of the knowledge that it had at the time of the job assignment in mid-March, which is that she was capable to a modified return to work. In essence, the Employer asserted, the Union cannot now argue that Ms. Coelho could be eligible for damages for a failure to accommodate if she was in receipt, even retroactively, of LTIP’s total disability benefits. Accordingly, as Ms. Coelho was deemed to be totally disabled for the period of time before and throughout - 9 - the time period covered by the two grievances, her grievances and claims are moot, and should be dismissed. [21] The Employer relied upon the following authorities: OPSEU v. Ontario (Ministry of Community Safety and Correctional Services et al) (Union Grievance) (2010), 196 L.A.C. (4th) 409 (Abramsky); and OPSEU v. Ontario (Ontario Realty Corporation/ Management Board Secretariat) (19 May 1998) (Abramsky). Union [22] Mr. Brewin for the Union asserted that the substance of the two grievances for Ms. Coelho go to: (i) a failure by the Employer to accommodate her by not providing her with a modified position within her capabilities and restrictions in the late winter and spring of 2012; and (ii) the exacerbation of Ms. Coelho’s health condition, caused by the Employer’s direction for her to return to work on 16 March 2012 to an inappropriate position, thereby subsequently and directly causing her the loss of income, the loss of dignity and related expenses. This conduct amounts to discrimination under the collective agreement and the Human Rights Code. These issues, he maintained, are not moot, and the available evidence does not satisfy the legal standard for mootness. [23] As of February and March 2012, Mr. Brewin argued, Ms. Coelho could have returned to productive work based on the available knowledge at the time, as long as the accommodated work assignment was within her capabilities and restrictions. At this time, Manulife, the insurance carrier, had advised Ms. Coelho that her 30 month benefit period would be expiring in mid-February, Ms. Coelho did not appeal the carrier’s direction during this period, and she cooperated in the return-to-work exercise. Indeed, all of the relevant parties – the carrier, the Employer, the Union, the Workers’ Safety Insurance Board and Ms. Coelho – were engaged in the exercise. It was only in August 2012, as a purely retroactive ruling for the specific and limited purpose of establishing benefit payments, when the insurance carrier ruled that Ms. Coelho was totally disabled for the period in question. This was not a definitive ruling on Ms. Coelho’s actual capabilities and limitations in February and March, based on the then-current knowledge. [24] Mr. Brewin argued that it would be inappropriate for the Coelho grievances to be dismissed for mootness, when our knowledge of the reasons for the Manulife decision in August 2012 is incomplete. Without understanding the full context of the Manulife decision, which we will only be able to determine and appreciate by hearing the full evidence on the merits of the Coelho grievances, it would be premature to adjudicate the grievances in the face of the controversies that are still very much alive. - 10 - [25] As authority, the Union submitted the seminal ruling on mootness by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Decision and Reasons [26] For the reasons set forth below, I have decided that the two Coelho grievances are not moot. Accordingly, the grievances will proceed to a full hearing to be adjudicated on their merits. [27] The Supreme Court of Canada in Borowski (supra) established the modern framework for assessing mootness arguments. The Court was faced with a constitutional claim by an anti- abortion activist that challenged the abortion provisions in the Criminal Code on the grounds that they did not sufficiently protect the rights of an unborn foetus, thereby contravening sections 7 (“life…and security of the person”) and 15 (right to equality on the basis of age and disability) of the Canadian Charter of Rights and Freedoms. However, before Mr. Borowski’s constitutional claim could be heard by the Supreme Court, it had struck down the targeted provisions of the Criminal Code in R. v. Morgentaler (No. 2), [1988] 1 S.C.R. 30. Mr. Borowski argued before the Court that it should still decide the claim on its merits, because courts in the future would benefit by a pronouncement from the Supreme Court of Canada on the constitutional rights enjoyed by a foetus. [28] The Supreme Court disagreed, and unanimously ruled that Mr. Borowski’s claim was moot. Mr. Justice Sopinka stated in para. 15 that: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. [29] The Supreme Court in Borowski proceeded to lay out a two-step analysis to determine whether a litigated matter should be found to be moot in the particular circumstances. First, it said: “it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic” (para. 16). In essence, this requires the - 11 - court or tribunal to assess whether a live controversy or a concrete dispute still remains between the parties, or whether the raison d’etre of the litigation has been effectively determined by other events. [30] If a court or tribunal has found that a live controversy no longer exists, the second step of the analysis would require the legal decision-maker to exercise its discretion as to whether to hear the case absent the live controversy, based on the consideration of the following three criteria: (i) whether a true adversarial relationship still exists, so that all any collateral consequences and issues can be fully argued; (ii) the need to preserve judicial economy, and whether the issue is a recurring one such that a ruling will assist in future cases; and (iii) the need to respect the legislative function, and not pronounce on issues that may intrude upon the role of the legislature. These criteria are factors to consider, not iron rules that must all be satisfied. [31] At the Grievance Settlement Board, the Borowski test for mootness has been applied by Vice Chair Abramsky on several occasions. In OPSEU v. Ontario (Ontario Realty Corporation/ Management Board Secretariat) (supra), the Vice Chair ruled that a grievance filed by the union with respect to the proposed divestment by the Ontario Realty Corporation of several of its services had become moot, because the Corporation had subsequently cancelled the divestment move in the intervening time prior to the hearing. In her view, the heart of the union’s grievance claim had been “effectively extinguished” by the change in circumstances: Without the continuing existence of the [Requests for Qualifications – the Government’s advertisement for bids from the private sector to assume some of the services provided by the Corporation] upon which the contractual issues in this case are based, resolution of those issues becomes purely academic and can have no practical effect on the parties...Any ruling about these cancelled RFQs will no longer have any practical effect on the parties. [32] Vice Chair Abramsky then turned to the second step of the Borowski test, and asked whether she should nevertheless exercise her or his discretion to hear the matter on its merits. After considering the arguments, the Vice Chair declined to exercise her discretion, applying the Borowski factors. She ruled that there were no remaining collateral consequences that would justify deciding the merits of the grievance, the time to hear the evidence and arguments about the substance of the grievance would unduly strain arbitral economy, and the determination of any larger legal and collective agreement issues for the benefit of other cases would not likely occur given the particular circumstances of this case. In sum, there was no compelling case to justify the exercise of discretion in favour of hearings the merits in the absence of a live controversy. - 12 - [33] In OPSEU v. Ontario (Ministry of Community Safety and Correctional Services et al) (Union Grievance) (supra), Vice Chair Abramsky again dealt with an employer argument that the union grievance was moot. The union had filed a policy grievance, alleging that the employer had violated the governing collective agreement by refusing to provide H1N1 vaccinations to employees. Its only remedial request was for a declaration. The Vice Chair ruled that the grievance was moot, as the H1N1 health crisis was over by the time the arbitration hearing had convened. She reasoned that, with the passing of the health crisis, the issue of vaccinations for staff was extinguished, and no live controversy remained. Nor would a decision on the merits of the grievance provide the parties with future guidance, because the employer’s decision whether to provide a vaccination was contextual and fact specific to the particular health crisis. [34] Vice Chair Abramsky declined to exercise her discretion in the circumstances of the Ministry of Community Safety case. She could find no collateral consequences to the employer’s actions in regard to vaccinations that required a decision. As well, no individual damages had been alleged, and there were no continuing impacts or consequences that flowed from the situation. Consequently, this was not an appropriate case for the exercise of discretion, as per the Borowski factors. [35] In a sampling of other leading arbitration cases on mootness, arbitrators have accepted a mootness argument in circumstances where a settlement of a dispute had removed any “real controversy” such that the hard facts of the case were no longer available to explain the nuances of the union’s claim, and all that remained was an abstract question (Trillium Lakelands District School Board (2007), 169 L.A.C. (4th) 19 (Burkett)); where “no useful purpose” would be served by an interpretative decision of a matter whose labour relations essence had been previously settled (Renfrew County District School Board, [2008] O.L.A.A. No. 225 (Beck)); and where “no...practical purpose” would be achieved by adjudicating a matter dealing with the purported failure to hire additional teachers where the school year had already ended, no damages were being claimed and the matter was not likely to reoccur (Re Welland County Roman Catholic Separate School Board (1992), 30 L.A.C. (4th) 353 (Brunner)). There must be a “real difference” between the parties in order for an arbitration board to proceed to adjudicate the substance of the grievance before it: St. Boniface General Hospital (1996), 56 L.A.C. (4th) 372 (Freedman). [36] On the other hand, arbitrators have dismissed mootness arguments and proceeded to hear the merits of a grievance where a “live controversy” remained because some remedies remained unaddressed, notwithstanding the disappearance of one remedial option (York University (2010), 199 L.A.C. (4th) 233 (Slotnick)); where the purported defects of the employer’s attendance program had a “continuing impact” on employees, such that the “basis of the grievance” had not disappeared (Ministry of Solicitor General and Correctional Services, (1998) GSB No. 1925/96 (Abramsky)); where the subject matter of - 13 - the grievance had never been addressed to the satisfaction of the union and there had not been an admission by the employer that it had violated the collective agreement (Re Windsor Roman Catholic Separate School Board (1994), 45 L.A.C. (4th) 149 (Joliffe)); and where the collective agreement difference involving the denial of an unpaid leave request by an employee remained fundamentally unresolved and capable of being remedied, even though the grievor had subsequently suffered an illness and could not have taken the requested leave in any event (Re Durham Region Roman Catholic Separate School Board (1991), 19 L.A.C. (4th) 72 (Brandt)). [37] In sum, when faced with a mootness argument, Canadian arbitrators have generally taken the view that grievances should be adjudicated and decided on their merits, unless it is plain and clear that the live or real difference between the parties has been effectively resolved, and there is no longer a purposive industrial relations reason to proceed to the merits: Brown & Beatty, Canadian Labour Arbitration (4th ed.), 2:3240. [38] Applying these principles and caselaw to the facts of the present case, I am satisfied that the grounds for mootness have not been made out. I say this for following two reasons. [39] First, and most importantly, the core of the union’s grievance remains unaddressed and unresolved, notwithstanding the retroactive restoration in August 2012 of Ms. Coelho’s LTIP benefits back to mid-February 2012 on the grounds that she was totally disabled after that date. The essence of the union’s grievance is that the participation of the employer in the decision to direct Ms. Coelho to return to work in March 2012 and engage in a series of work-hardening positions ultimately led to injuries suffered by the grievor, in a manner that engaged the employer’s statutory and collective agreement obligations. Damages are being sought to remedy the purported injuries to Ms. Coelho. The LTIP decision did not address, let alone settle, the issue of employer responsibility (if any) for the alleged injuries suffered by Ms. Coelho in the March to May 2012 period. Nor did the LTIP decision speak to the remedies being sought against the employer as a result of these purported injuries. Consequently, the raison d’etre of the grievance remains alive, and it requires adjudication on its merits in order to be resolved. [40] And second, I am reluctant to resolve a substantive industrial relations dispute on a mootness argument where the context of what is said to be the pivotal event – in this case, the August 2012 decision by the insurance carrier to restore Ms. Coelho’s LTIP benefits back to a time before she returned to work – has not been sufficiently developed. The decisions of insurance carriers to accept or deny a claim for work-related benefits are typically made in the context of the particular contractual terms between the carrier and the institution (usually the employer) which holds the collective benefits policy. These factors that shape a carrier’s decision to grant or deny benefit coverage may or may not be relevant to the separate consideration as to whether the individual employee was properly returned to work following a disability leave, and whether the employer bears any statutory or - 14 - collective agreement responsibilities for the consequences of its decisions. Certainly, without examining and comparing the context of these distinct decisions, a tribunal cannot properly evaluate the significance of the insurance carrier’s ruling to the collective agreement dispute in front of it. Conclusion [41] For the reasons provided, the employer’s motion to dismiss the union’s grievances filed on behalf of Ms. Coelho on the basis of mootness is not successful. Hearing dates for the resumption of the arbitration of these two grievances will be set by the Board in consultation with the parties. Dated at Toronto, Ontario this 12th day of May 2014 Michael Lynk, Vice-Chair