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HomeMy WebLinkAboutAndreyechen 14-06-27BETWEEN: IN THE MATTER OF AN ARBITRATION NORTH BAY REGIONAL HEALTH CENTRE ("Hospital') - and -- OPSEU, LOCAL 662 ("Union") (Grievances of L. Andreyechen) ARBITRATOR: Jasbir Parmar On Behalf of the Hospital• Shane Smith, Counsel On Behalf of the Union: Morgan Rowe, Counsel This matter was heard on April 30, 2014 in North Bay, ON, and on May 20, 2014 via teieconference. I. INTRODUCTION 1. This decisions deals with two individual grievances filed by Lizette Andreyechen, the Grievor. The Hospital raised a preliminary objection challenging my jurisdiction to determine the two grievances. The parties agreed to deal with the preliminary issue and merits of the grievances together. Il. FACTS 2. The parties agreed to proceed by way of an Agreed Statement of Facts. For brevity, I will set out only the key facts. 3. The Grievor is an employee of the Hospital and a member of the OPSEU bargaining unit. She is presently 62 years of age. Effective November 22, 2011, the Grievor has claimed and been accepted for long-term disability (LTD) benefits, which are provided through a plan secured by the Hospital with Desjardins Financial Security. 4. The Grievor, as an employee of the Hospital and pursuant to the collective agreement, is a member of the Healthcare of Ontario Pension Plan (HOOPP). HOOPP provides options for members who are totally and permanently disabled under the HOOPP plan. The first option is to receive a disability pension. This requires the employee to retire from employment, and terminate her employment. The second option is to receive "free accrual". Under this option, the member continues to accumulate contributory service and the normally required pension contributions from employees and employers are waived. While under this option, the member does not receive any pension payments. However, selecting the free accrual option does not preclude a member from later pursuing a disability or regular pension. 1 5. The Grievor elected the option of receiving free accrual. As such, when the Grievor retires in the future her retirement pension benefit will be greater than if she had elected to start receiving a disability pension. 6. On January 31, 2012, the Grievor applied for her Canada Pension Plan (CPP) retirement pension. She was approved as of February 22, 2012, and commenced receiving that benefit. 7. In 2013, Desjardins asked the Grievor to apply for the HOOPP disability pension and the CPP disability benefit. The Grievor then applied for CPP disability benefits but was denied, on the basis she is already in receipt of CPP retirement benefits. She advised Desjardin she objected to applying for her HOOPP disability pension. 8. Desjardin subsequently deducted from her LTD benefit the following amounts: the amount of her CPP retirement benefit she receives, and a deemed amount for the HOOPP disability pension, which she does not receive. 9. The Grievor filed two grievances. The first alleges the Hospital is breaching the collective agreement by deducting a deemed amount for HOOPP disability pension benefits that she does not receive. The second alleges the Hospital is breaching the collective agreement and the Human Rights Code by deducting CPP retirement benefits she is receiving. Ill. COLLECTIVE AGREEMENT AND HOODIP LANGUAGE 10. Article 15 of the collective agreement provides as follows: 15.01 The Hospital shall provide a short-term sick leave plan at least equivalent to that described in the 1992 Hospitals of Ontario Disability Income Plan (HOODIP) brochure. 15.02 The Hospital will pay seventy-five (75%) of the billed premium towards coverage of eligible employees under the long term disability plan (HOODIP or equivalent); employees shall pay the balance of the billed premiums through payroll deduction. 2 15.03 No sick pay benefit is payable under HOODIP for the first fifteen (15) hours of absence for the sixth (61h) and subsequent period(s) of absence in the same fiscal year (April 151 through March 31S). 15.04 (a) Any dispute which may arise concerning an employee's entitlement to short-term or long-term benefits under HOODIP may be subject to grievance and arbitration under the provisions of this Agreement. (b) If a claim for long-term disability is denied, the employee must fully comply with the carrier's medical Appeal Process prior to filing a grievance, provided that the Process is completed within sixty (60) days of its inception, unless that time is extended by mutual agreement of the Hospital and OPSEU. 15.05 An employee who is absent from work as a result of an illness or injury sustained at work and who has been awaiting approval of a claim for Worker's Compensation for a period longer than one complete shift may apply to the Hospital for payment equivalent to the lesser of the benefit the employee would receive form Workers' Compensation if the employee's claim was approved under the short term sick portion of the disability income plan (HOODIP or equivalent)...... (The following clause will only appear in those collective agreements at hospitals where sick leave banks were established on the transfer to HOODIP or equivalent:) 15.06 Sick leave banks standing to the credit of an employee shall be utilized to supplement payment for sick leave days which would otherwise be paid at less than full wages, or for sick leave days at no wages. 15.08 Where an employee, employed as of the effective date of the transfer to HOODIP or equivalent, did not have the required service to qualify for pay out on termination, he shall be entitled to the same pay out provisions as set out in Article 15.08 above, providing he subsequently achieves the necessary service to qualify for pay out under those provisions. 11. The relevant portion of the 1992 HOODIP brochure states: Your LTD benefit will be based on your regular earnings in effect on the last day you are Actively at Work and will be reduced by all of the following: • Any earnings received from your employer, Disability income benefits payable under any other disability income plan toward which your employer contributes; • The amount of any disability or retirement pension receivable from an employer's pension plan; and Benefits entitled to from any government plan such as Workplace Safety and insurance Board (WSIB), Canada/Quebec Pension Plan, and Old Age Security. IV, SUMMARY OF THE PARTIES' POSITIONS 3 a. Preliminary Issue: Jurisdiction 12. The Hospital submits that the grievances are not arbitrable on the basis the disability benefits are provided through an equivalent plan, rather than HOODIP. The Hospital notes that under Article 15.02 the Hospital's obligation is to pay the premiums of a ISTD plan, either HOODIP or its equivalent. The Hospital notes that where an employer is only required to pay the premiums, disputes about entitlement under the plan are typically not arbitrable. The Hospital acknowledges that these parties have altered that typical limitation, through Article 15.04 which specifically provides that disputes about entitlement are arbitrable. However, the Hospital notes that Article 15.04 states only that disputes "under HOODIP" may be subject to grievance and arbitration. 13. The Hospital submits that in the present case the dispute about the Grievor's entitlement is not under HOODIP. Rather, it is under an equivalent plan. The Hospital submits that if the parties had intended to make disputes under equivalent plans arbitrable, they could easily have said so. The Hospital notes the phrase "HOODIP or equivalent" is used throughout the rest of this provision. The Hospital submits the fact the parties did not include "or equivalent" in Article 15.04(a) clearly indicates they did not intend such disputes to be arbitrable, and thus I have no authority to hear and determine these grievances. 14. The Union submits I have jurisdiction to deal with both grievances. With respect to my jurisdiction to address the allegations of breach of the collective agreement raised by the grievances, the Union notes the Hospital is obligated under Article 15.02 to provide a policy that is equivalent to HOODIP. The Union notes that while the text of the Desjardin plan may be similar in language, it is not equivalent because it is not being implemented in an equivalent fashion. Thus, the Union submits, I have jurisdiction under Article 15.02 to consider these grievances, and determine whether the Hospital has met its obligation to provide a plan with a minimum level of LTD benefit. 0 15. The Union further takes issue with the Hospital's interpretation of Article 15.04. The Union notes this argument has been raised by other employers before (although not under the OPSEU agreement). The jurisprudence cited by the Union consistently found that the disputes about entitlement arising under an equivalent plan were arbitrable, even where the collective agreement language only expressly stated that disputes under HOODIP were arbitrable. The Union submits that given the consistent jurisprudence on this issue, it should be followed in the present case. 16. Alternatively, even if the Hospital was correct that 1 do not have jurisdiction under the collective agreement, the Union submits I would still have jurisdiction to determine the second grievance. This, the Union submits, is because the second grievance also alleges a breach of the Human Rights Code. The Union submits that I have jurisdiction to address discriminatory treatment by the Hospital regardless of the express language of the collective agreement. 17. In reply, the Hospital asserts that the cases relied upon by the Union do not apply as they are not an interpretation of language identical to Article 15 as whole. Furthermore, the Hospital asserts that the analysis in those cases is wrong, and should be not followed. The Hospital made no submissions challenging my jurisdiction to address a breach of Article 15.02 or a breach of the Human Rights Code. b, Deduction of a deemed HOOPP disability pension 18. The Union notes that HOODIP does not permit deduction of employer disability pension or retirement pension benefits unless they are "receivable". The Union submits that as the Grievor has elected to receive free accrual, a disability pension or a retirement pension is not receivable. The Union points out that, having elected free accrual, the Grievor does not actually receive any pension monies from HOOPP. t1 19. The Union submits that the Desjardin plan is not an equivalent of HOODIP, because it is deducting a deemed amount for HOOP disability benefits even though they are not receivable by the Grievor. 20. The Union relies on the general principles of interpretation, including the principles of interpretation relating to insurance contracts, with respect to the interpretation of the term "receivable". 21. While there are no arbitration awards that are directly on point, the Union refers to three awards which addressed the same issue under the 1980 HOODIP plan. That plan provided for deductions of disability pension benefits where they were "available" to the disabled employee. The three awards consistently held that where an employee had the option under HOOPP to elect free accrual or receipt of a disability pension, and the employee chose free accrual, the disability pension was not "available" to the employee, and therefore deductions from the LTD plan under HOODIP were not permitted. 22. The Union submits that the term "receivable" is even more precise, and that if the disability pension isn't considered "available" in these circumstances, it clearly isn't "receivable". 23. The Union submits that the election of free accrual as opposed to electing to receive pension benefits involves the making of a real and substantive decision, involving foregoing one benefit in favour of another. The Union notes that in order to receive the pension benefits, the Grievor would have to terminate her employment, thus relinquishing other employment and pension benefits, such as specific survivor benefits. The Grievor cannot receive pension benefits unless and until she gives up free accrual. This is not, the Union notes, simply about taking the administrative actions to apply for a benefit. 24. In response, the Hospital expressed concern that this dispute may be impacted by the sympathetic nature of the Grievor's financial situation. The Hospital noted that there were Cr other financial interests at stake. The Hospital suggested that the Grievor is choosing to grow her pension benefit through free accrual because in the interim she is able to avail herself of income from LTD benefits, and that therefore the cost of this really falls on the Hospital. The Hospital acknowledged that made financial sense for the Grievor, but noted that the Hospital (and the insurer) also had a financial interest that needed to be considered. That is, they want to reduce the amount of benefits payable, which is how the amount of premiums was determined. 25. The Hospital notes that through the adoption of the HOODIP plan, the parties expressly agreed that LTD plan could reduce the benefit payable when a disabled employee has the ability to receive employer pension benefits. The Hospital submitted the deal with the Union to reduce the LTD benefit in this manner had to be respected. The Hospital submitted the focus of determining the outcome of this grievance needed to remain on the deal reflected by the language of 1992 HOODIP, and not on any assessments of fairness. 26. The Hospital submits that "receivable" is clear and means capable of being received. The Hospital submits that just because the Grievor elected to have free accrual doesn't mean the disability pension is not capable of being received. The Hospital submits the Grievor just needs to say to HOOPP she wants her pension, and it's hers. Therefore, it is argued, it is capable of being received. The Hospital submits the Grievor does not have to surrender any rights in order to receive the disability pension. It is submitted the only thing that would change is the size of her pension, and that, they say, has nothing to do with whether the disability pension is "receivable". 27. The Hospital submits that the HOOPP changes don't change the HOODIP brochure. That said, the Hospital notes that the HOOPP changes providing for free accrual as a financial benefit took place in 2006, and the Union knew of it as early as 2004. The Hospital submits that it was open to the Union to negotiate a change to the HOODIP deductions in VA light of the HOOP changes. Having not done so, the Hospital submits it is not appropriate for the Union to try to get that result by arguing for a result that twists the meaning of the negotiated language. 28. With respect to the arbitration awards cited by the Union, the Hospital submits they do not apply as they all address the 1980 HOODIP brochure, which used the word "available". The Hospital also submits that they were wrongly decided. C. Deduction of CPP Benefits 29. The Union submits that when the list of possible deductions from the HOOP LTD benefit is read as a whole, it is evident the parties intended to reduce the LTD benefit by deducting other sources of income replacement. 30. The Union accepts that if the Grievor were in receipt of CPP disability benefits, it would be appropriate to deduct those from her LTD benefit. 31. However, it is submitted that as a result of recent changes to the CPP, which permits individuals to remain employed while receiving CPP retirement pension benefits, CPP retirement benefits are no longer a form of income replacement for individuals that are not working, and therefore they should not be deducted from the LTD benefit. It is noted the Grievor is in receipt of the CPP retirement pension benefit but continues to have the intention to return to work. 32. The Union argues that there should be no concern about double recovery because the Grievor has already sustained a loss in respect of her CPP pension benefits (which is calculated at a lower amount when it is taken prior to age 65). The Union argues that deducting the amount she receives from her LTD benefit only penalizes her further. 33. Alternatively, the Union submits that even if deducting the CPP benefit from the LTD benefit payable is permissible under HOODIP, the deduction is a breach of the Human E:3 Rights Code. The Union submits by having such a deduction, disabled individuals in receipt of LTD are deprived of their ability to access their CPP benefit, which non -disabled working employees are able to do. 34. The Union notes both the collective agreement (Article 3) and the Human Rights Code prohibit discrimination in employment on the basis of disability. The Union submits there is no justifiable purpose in denying disabled employees access to CPP benefits. It is also submitted that deducting the CPP amount from the LTD benefit is not rationally connected to the purpose of LTD, because, with the recent legislative changes, CPP is not a form of wage replacement. 35. The Hospital submits that HOODIP expressly provides for the reduction of LTD benefits by the amount of CPP benefits. The Hospital submits there is no discrimination under the Human Rights Code because the disabled employees are in the same position as non - disabled working employees, or even non -disabled non -working employees (i.e. those on some sort of leave). All of them are able to apply for and receive the CPP benefit. The Hospital notes the Grievor actually receives her CPP benefit. 36. The fact that the Grievor's LTD benefit is impacted by the receipt of CPP benefits, the Hospital submits, is a matter of private contract. The Hospital notes that insurance premiums are determined on the basis of what the cost of the benefit payable will be. The greater the benefit payable, the higher the premiums. The Hospital notes that the collective agreement parties contemplated that the Hospital would pay the premiums for LTD coverage under a plan that permitted reduction of the benefit with regard to certain other income, which expressly included income from CPP. The Hospital submits this is what it has done, and there is no breach of the collective agreement or the Human Rights Code by this action. 37. The Union relied on the following authorities: OPSEU, Local 479 v. The Royal Ottawa Health Care Group (unreported, November 1, 2013) (Baxter); Queensway General Hospital M v. ONA (1984), 17 L.A.C. (3d) 9; Black's Law Dictionary, 81h ed.; The Oxford English Dictionary, 8'" ed.; Trenton Memorial Hospital v. ONA (unreported, July 6, 2000) (Thorne), upheld on judicial review, [2001] O.J. No. 2965; Woodstock General Hospital v. ONA (unreported, July 10, 2001)(Kaplan); Campos v. Sun Life Assurance Co. of Canada, [2009] O.J. No. 3408; Toronto (City) v. CUPS, Local 79 (1999), 81 L.A.C. (4") 315; Abdulharim v. Manufacturers Life Insurance Co. (2003), 65 O.R. (3d) 543; Bapoo v. Co-operators General Insurance Co. (1997), 36 0. R. (3d) 616; Battlefords and District Co-operative Ltd. V. Gibbs, [1992] 3 S.C.R. 87; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.0 (Meiorin Grievance), [1999] 3 S.C.R. 3; Cambridge Memorial Hospital v. ONA, [2011] O.L.A.A. No. 558 (Gray); Canada Safeway Ltd. V. Alberta (Human Rights and Citizenship Commission) (2000), 280 A.R. 68; Canadian Telephone Employees Assn. v. Bell Canada (1994), 43 L.A.C. (41') 172; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624; Non -Marine Underwriters Lloyd's of London v. Scalera, [2000] 1 S.C.R. 551; Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [19851 2 S.C.R. 536; ONA v. Mount Sinai Hospital, 75 O.R. (3d) 245; Reid Crowther & Partners Ltd. V. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; Renfrew County and District Health Unit v. ONA (unreported, July 26, 2013) (Siotnick); Ruffalo et al. v. Sun Life Assurance Company of Canada, 2007 CanLii 50284 (On. S.C.); Runnymede Healthcare Centre v. ONA (unreported, August 3, 2013) (Brownlee); Timmins and District Hospital v. ONA (unreported, October 9, 2012) (Marcotte), upheld on judicial review, (unreported September 3, 2013) (On. S.C.); Timmins and District Hospital v. ONA (Supplemental Award), (unreported, May 30, 2013) (Marcotte); Brooks v. Canada Safeway Ltd. (1989), 59 D.L.R. (4t) 321 (SCC); Brown and Beatty, 4th ed., paragraphs 4:2000, 4:2100, 4:2100, 4:2110, and 4:2141; Canada Pension Plan, R.S.C, 1985 c. C-8; Canada Pension Plan Regulations, C.R.C., C. 385; Human Rights Code, R.S.O. 1990, Chapter H. 19; 10 Senate of Canada Debates, 21" Parl, 5th Sess (14 November 1951); and Senate of Canada Debates, 26th Parl, 1St Sess (18 July 1963). 38. The E=mployer relied on the following authorities: Cambridge Memorial Hospital, supra; Runnymedo Healthcare Centre, supra; Ruffalo, supra; and "thefreedictionary.com". V. Decision a. Preliminary Issue - Jurisdiction 39. In determining jurisdiction it is appropriate to begin by considering the essential nature of the dispute underlying the grievances before me. 40. The LTD plan the Hospital provides to its employees is provided through Desjardins. Under the terms of that plan, Desjardins is requiring the Grievor to apply for HOOPP disability pension benefits, deeming the Grievor to be in receipt of such benefits (even though she has not applied for them and is not receiving them) and deducting the deemed amount of those benefits from her LTD benefit. Desjardins is also deducting the amount of the Grievor's CPP pension benefit from her LTD benefit amount. 41. The Union submits that these deductions are not appropriate, because they are not permitted under HOODIP. 42. This is of significance because, in Article 15.02, the Hospital didn't just agree to pay the premiums towards coverage of employees under a LTD plan. It agreed to pay the premiums for coverage either under HOODIP or a plan equivalent to HOODIP. In other words, the Hospital could only choose to provide coverage under a plan that was not HOODIP if the other plan provided coverage equivalent to HOODIP. 43. If the Union is correct in its assertion that such deductions are not permitted under HOODIP, then a plan which permits such deductions would not be a plan equivalent to HOODIP. 11 44. It has not escaped my notice that the Desjardin plan has language identical to HOODIP. In my view, this is not determinative of the issue of equivalency. Under the plan the Hospital has chosen to provide, Desjardin has in fact made the deductions challenged by the Union. The Hospital is aware of this and has taken no action in response to Desjardin making these deductions. It is a reasonable assumption from this that as far as the Hospital is concerned, Desjardin is providing the type of plan the Hospital contracted with it to provide. 45. Thus, while it is the overt actions of Desjardins that have prompted the filing of this grievance, the concerns underlying the grievances are about the actions of the Hospital in providing a plan that provides for such deductions. 46. It is for this reason that the dispute is with the Hospital. The issue is whether, in contracting with Desjardin to provide the plan it has, the Hospital has provided a plan which is equivalent to HOODIP. As such, this dispute invokes Article 15.02 of the collective agreement, and requires a determination of whether the Hospital has met its collective agreement obligations under Article 15.02 by providing a plan which permits such deductions. 47. There is no issue, and the Hospital has not disputed, that I have jurisdiction to determine whether the Hospital has met its collective agreement obligations under Article 15.02. As I have found the nature of the dispute underlying the grievances falls under Article 15.02, 1 need not consider the Hospital's submissions about Article 15.04. 48. 1 have jurisdiction under Article 15.02 to consider the essential nature of the dispute in this case. b. Deduction of a deemed HOOPP Disability Pension 49. Article 15.02 of the collective agreement requires that the Hospital pay the premiums for coverage of employees under either the HOODIP plan, or a plan equivalent to HOODIP. 12 50. HOODIP contemplates that certain deductions from the total LTD benefit may be made. The first deduction at issue is that of employer pension benefits. Specifically, the HOODIP brochure states that disability or retirement pension benefits "receivable" from an employer pension plan may be deducted from an employee's LTD benefit. 51. The Grievor is not actually in receipt of disability pension benefit under the plan. The insurer, however, is deducting from her LTD benefit an amount equivalent to what she would receive if she was in receipt of a disability pension benefit. 52. The dispute, therefore, is whether the disability pension benefit is in fact "receivable" under the 1992 HOODIP plan. 53. While the language at issue has been in the collective agreement for years, the dispute arises at this time as a result of changes in HOOPP. Prior to 2006, an employee who was totally and permanently disabled was entitled to receive a disability pension calculated on the basis of actual service to date plus the service the employee would have accrued to age 65. As of 2006, the disability pension is based only on actual service to date. However, employees have options. 54. The options are set out in the HOOP disability Guide as follows: HOOP provides two disability benefits: free accrual, where you may build contributory service under the Plan if you are off work due to disability, or a disability pension, where you may receive the monthly pension income from the Plan. [Emphasis in bold added] 55. As far as the parties are aware, there are no decisions which have addressed the interpretation of "receivable" under the 1992 HOODIP plan in this context. 56. However, there are a number of arbitration awards which have addressed this very issue under the 1980 HOODIP plan. In all of these cases, the employee had the option under HOOPP to elect free accrual or elect to receive a disability pension. All of the 13 employees had elected free accrual, and were therefore not in receipt of any disability pension benefit. The employer, asserting it was permitted under the 1980 HOODIP plan, supported the insurer nonetheless deducting the amount the employee would have received had he or she elected receipt of the disability pension benefit. The 1980 HOODIP plan contains different language from the 1992 plan. It contemplates deduction of the amount of a disability pension benefit from an employee's LTD benefit if it is "available" to the employee. 57. The first of these decisions is Cambridge Memorial and ONA, supra. Arbitrator Gray noted the HOODIP policy did not, at the time the parties originally negotiated the collective agreement setting out the employer's obligations to provide coverage under the HOODIP policy, exhaustively define the payments that would reduce the LTD benefit payable. Rather, he noted, the HOODIP policy used general language capable of applying to payments and plans of a sort that may not have existed at that time. He also noted that the parties had since simply renewed the collective agreement language setting out the employer's obligation since that time (except for a change that did not apply to the grievor). 58. Arbitrator Gray noted that while HOOPP had changed in 2006 to provide different options for disabled employees, the HOOPP changes could change the consequences of the HOODIP provision, but could not change the meaning of that provision. For this reason, he found that it did not matter whether union was conscious of the HOOPP changes when it renewed the current collective agreement. 59. He concluded the word "available" was ambiguous in the context of the dispute before him, on the basis it was capable of more than one meaning. He concluded that because the grievor was required to give up a right, that is the right to free accrual, in order to actually receive the disability pension benefit, the facts before him were distinct from situations where the only thing a person had to do was apply for a benefit. He concluded in this context the 14 disability pension was not "available" to her, since she did not give up the right to free accrual. Therefore, a deduction from her LTD benefit under HOODIP was not permitted. 60. A similar conclusion was reached by Arbitrator Marcotte in Timmins and District Hospital, supra. He also concluded the term "available" was ambiguous in this context. He found that this was not a situation where the grievor had just not availed herself of the HOOPP disability pension. He noted that in exercising her option to elect free accrual under HOOPP, she was able to access a number of benefits that came with continued employment (whereas electing to receive the disability person required a termination of employment). She would have to give up those benefits in order to receive her disability pension. He concluded that in this context, having chosen free accrual, the HOOP pension was not "available" to her under the 1980 HOODIP plan. 61. Arbitrator Marcotte's decision was upheld on judicial review. The Court found his conclusion to be reasonable, noting that this was not a situation where an employee is entitled without cost or change of status to apply for a benefit and had simply refrained from doing so. 62. The third decision to address this issue is Runnymede Healthcare Centre v. ONA, supra, which reached the same conclusion. In doing so, Arbitrator Brownlee noted that the employer's position, that the fact it was open to the grievor to apply for and receive a disability pension meant it was available to him, ignored the fact that the HOOPP options were mutually exclusive in that the grievor could have free accrual OR an immediate disability pension. She stated that the only way to conclude the disability pension was "available" to the grievor was to read out the option of free accrual, and to do so would be inconsistent with the principles of interpretation. 63. While the language at issue in the present case is different, I am of the view the correct interpretation of the term "receivable" leads to the same conclusion. 15 64. First, I note that while the Hospital's obligation to address the benefit at issue arises under the collective agreement, in setting out this obligation the parties made reference to the 1992 HOODIP plan, which is an insurance contract. It is a reasonable inference that, in agreeing that HOODIP would be the standard, the parties turned their mind to what the terms of the HOODIP plan meant. Thus, while the principles of collective agreement interpretation remain relevant, the principles of insurance contract interpretation are also relevant. As such, I refer to Brissette v. Westbury Lie Insurance, where the Supreme Court of Canada set out the principles to apply in interpreting an insurance contract: (1) The court must search for an interpretation from the whole of the contract which promotes the true intent of the parties at the time of the entry into the contract. (2) Where words are capable of two or more meanings, the meaning that is more reasonable in promoting the intention of the parties will be selected. (3) Ambiguities will be construed against the insurer. (4) An interpretation which will result in either a windfall to the insurer or an unanticipated recovery to the insured is to be avoided. 65. 1 share Arbitrator's Gray's observation that in agreeing to the minimum benefit set out in the 1992 HOODIP plan, the parties in the present case chose not to exhaustively define all the specific deductions possible from an employee's LTD benefit. Rather, the parties chose language that was broader and more general, and could cover situations that may not have specifically existed at the time the parties originally entered into agreement to adopt this standard. 66. 1 find the Hospital's submission that it was open to the Union to negotiate different language when it renewed the language for the current collective agreement to be of little assistance. The same, after all, could be said about the Hospital, who could have chosen to negotiate a change to the language and make it more specific given the 2006 HOOPP changes. 16 67. The issue is whether in these circumstances, the disability pension is "receivable", which is the standard the parties clearly intended to apply in determining whether a deduction from the LTD benefit should be made. 68. 1 have considered the Canadian Oxford Dictionary definition of "receivable", which is capable of being received. "Receive" meanwhile is defined as acquire or accept, accept delivery of, or be granted or have conferred upon. 69. As such, for something to be "receivable", it must be capable of being acquired, of being able to accept delivery of, or of being granted. 70. 1 do not agree with the Hospital's position that even though the Grievor has elected free accrual, her disability pension remains receivable, because she is not precluded from later pursuing a disability pension. The Grievor`s options under HOOPP are mutually exclusive options. The fact that she can at a subsequent point alter her decision does not alter the fact that at a single point in time the options are mutually exclusive. The Grievor cannot exercise her right to free accrual and at the same time receive a disability pension. Until the Grievor advises HOOPP she is giving up her right to free accrual, HOOPP will not pay her the disability pension. She has not given up her right to free accrual, and so, at this point in time, she is not capable of receiving a disability benefit from HOOPP. 71. The Grievor's right to be paid her disability pension is contingent upon her giving up her right to free accrual. I am in agreement with the arbitral analysis set out in the awards referred to above that where an individual must give up a right in order to receive some benefit, that benefit is not accessible to that individual unless and until the individual gives up that right. 72. My conclusion in this respect is consistent with that of the Court in Abdulrahim v. Manufacturer's Life insurance, supra. In that case, the plaintiff was injured in a workplace accident using a tool manufactured by a third party. The plaintiff had applied for and started 17 receiving benefits under the Workplace Safety and Insurance Act (WSIA). He then began an action against the third party, and advised the Workplace Safety and Insurance Board he wished to "de-eiect" to receive benefits and bring a civil action instead. The Board agreed to withdraw his deemed election to receive benefits rather than pursue an action if the plaintiff reimbursed the Board for the benefits he had received. The Board suspended the benefits while it awaited a decision from the plaintiff. Meanwhile, the plaintiff made a claim for LTD benefits under a private disability insurance policy. The policy provided that the disability benefits payable under the insurance policy would be less "benefits the employee receives, or is entitled to receive" from worker's compensation. The insurer took the position that it was entitled to deduct the worker's compensation benefits on the basis the plaintiff was "entitled to receive" them. 73. The Court concluded the deduction was not permitted. The Court noted that the plaintiff didn't simply neglect to make a claim for benefits. Rather, the plaintiff had a right of civil action open to him under WSIA and that he had elected to exercise that right. Exercising that right involved taking action to make a choice. The Court concluded it was reasonable to interpret "entitled to receive" as applying only where there is an unqualified entitlement to receive the specified benefit. An unqualified entitlement, in the Court's view, was one which does not require the plaintiff to seriously prejudice his statutory rights. 74. In this case, the Grievor has not simply neglected to make an application that would result in her receiving the disability pension. She has elected to pursue a contractual right available to her. I see no reason to distinguish between a statutory right and a contractual right. 75. 1 also disagree with the Hospital's submission that the Grievor does not have to give up anything to receive her disability pension, because the "only thing that would change is the size of her pension". Aside from the obvious fact that the size of a pension is a material 18 consideration, the facts about the impact of making an election under HOOPP simply do not support the Hospital's assertion that it is insignificant. I refer to the following passage from the HOOPP Disability Guide that provides information about the options: WEIGH YOUR DE=CISION CAREFULLY Be sure to weigh the pros and cons of both the free accrual and disability pension options before making a decision. Before starting a disability pension, you must resign from all of your HOOPP employers, and by doing so, you may lose other employment-related benefits as a result. Please be sure to discuss this decision with your employer. HOOPP also recommends you seek financial advice when making this decision. 76. It is clear that the making of an election under HOOPP has a significant impact on an individual's rights. It is not lust about making an application for benefits, but a decision about which rights to pursue. 77. The Hospital's interpretation would mean that having accessed LTD benefits, the Grievor's right to make an election under HOOPP would be eliminated. In my view, the Hospital's interpretation cannot stand in the absence of clear language indicating the parties intended that employees' access to LTD benefits meant they would relinquish other rights available to them through the collective agreement. 78. In the circumstances of this case, I find that the HOOPP disability pension benefits are not receivable by the Grievor, and therefore cannot be deducted from her LTD entitlement under HOODIP. 79. In providing a benefit plan that makes a deduction for a disability pension benefit on the facts of the present case, the Hospital has failed to provide a plan that is equivalent to the 1992 HOODIP and is therefore in breach of the collective agreement. C. Deduction of CPP Benefits. 80. The next issue is whether the deduction of CPP benefits from the Grievor's LTD benefit is a breach of the collective agreement. 19 81. 1 am not persuaded by the Union's submissions that the deduction of CPP benefits is not permitted under the 1992 HOODIP plan. The thrust of those submissions is that deducting CPP retirement benefits from the LTD benefit is not consistent with the intention of the parties in agreeing to certain types of deductions. 82. The basic principle of interpretation is that parties' intentions are to be derived from the clear and plain meaning of the language they chose. In my view, the language of the HOODIP plan that deals with deductions of CPP from the LTD benefit could not be clearer. The plan states the LTD benefit "will be reduced by... benefits entitled to from any government pian such as... Canada/Quebec Pension Plan". The pian expressly identified CPP benefits as one of the government benefits that will be deducted from the LTD benefit. To accept the Union's submissions, I would have to find that the parties expressly said CPP benefits would be deducted but didn't actually mea CPP benefits. Rather, they were really talking about benefits of a particular nature. Frankly, that would require a leap from the clear wording used by the parties, and there is absolutely no evidence to warrant such a leap. 83. 1 also note that the Union's submission about the nature of CPP benefits is premised on the recent changes made to CPP. It is important, therefore, to consider the scope of those changes. 84. Prior to January 1, 2012, section 68.1 of the Canada Pension Plan required that a person applying for a retirement pension who was not yet sixty-five years of age provide proof that he or she had "wholly or substantially ceased to be engaged in paid employment or self-employment", which I will refer to as the `work cessation test'. As of January 1, 2012, that section has been repealed. 85. Along with that repeal, there are a number of other changes to the legislation and the regulations. For example, they address the calculation of your CPP retirement pension if you Pic take if before 65 as opposed to after 65, and whether contributions are required if you are working and receiving your pension before age 65 and after 65. 86. The Union asserts that with the removal of the work cessation test, the CPP retirement pension benefit is no longer an income replacement benefit. It is noted that individuals are entitled to continue to work and receive their CPP retirement pension in addition to their employment income. 87. In my view, these changes to the legislation do not change the very nature of the CPP pension benefit. The original purpose and nature of the CPP pension benefit, as noted by the Union, was to provide for a minimum level of income for all Canadians after they stopped working and retired. This is confirmed in the following passage from the Senate of Canada Debates at the time the CPP legislation was first introduced: The purpose of the Government's proposed legislation is to ensure that, as soon as is possible in a fair and practical way, all Canadians be able to retire in security and with dignity. 88. While Canadians are now able to access this benefit at or after the age of 60 even though they may continue to work, there is nothing to suggest that the legislators intended to fundamentally change the very purpose or nature of the benefit. I observe that the legislation continues to refer to the benefit as a "retirement pension". Also, the following passage which introduces and explains the changes in a Service Canada pamphlet confirms that the changes are still tied to the original purpose of the benefit — a source of income in retirement: The changes, which the Government will gradually introduce from 2011 to 2016, will give you more options so that you can make decisions that are right for you as you make the transition from work to retirement. 89. At most, these changes reflect an appreciation that the transition from work to retirement may be different for different people. They do not support the conclusion that CPP retirement benefits are no longer intended to be income during retirement. 21 90. The Union's alternative argument with respect to CPP is that the deduction provided for in the pian is a breach of the Human Rights Code, and Article 3 of the collective agreement. I am not persuaded by this argument. 91. 1 begin by noting that the Union has not argued that the deduction of CPP benefits from LTD benefits under HOODIP has always been a breach of the Human Rights Code. Again, the Union's submission is grounded in the recent changes made to CPP. As noted above, I find the nature of CPP benefits has not changed. 92. Furthermore, even if disabled employees on LTD and in receipt of CPP retirement pension benefits are compared to non -disabled employees (working or non -working) in receipt of CPP retirement pension benefits, as suggested by the Union, there is in fact no discrimination in respect of entitlement and access to CPP retirement benefits. Both groups are entitled to apply for and receive their CPP benefit. 93. The Union suggests the fact that the quantum of the CPP benefit is deducted from the Grievor's LTD benefit means she is "effectively" being denied her CPP benefit. That conclusion ignores the reality that the Grievor actually receives her CPP retirement pension. 94. 1 refer to the analysis in Ruffalo — and — Sun Life Assurance Company of Canada, supra. In that case, the plaintiff brought an action against his LTD insurer seeking to stop the insurer from deducting the CPP benefit payable to his children as a result of his disability. In addressing this issue, the Court noted that private insurers take into consideration the possibility of offset of benefits from CPP in setting the premium rates for LTD coverage. The Court noted that the insurance policy at issue provided for an offset for any disability benefit payable under the Canada Pension Plan, and since the children's benefit was paid to the plaintiff, the insurer was entitled to the offset. While the issue of a breach of the Human Rights Code was not before the Court, there was an argument made that permitting such an 22 offset in insurance policies was contrary to public policy. The Court's observations in rejecting this argument, set out below, are useful to consider in the present case:: As I explained early in these Reasons for Judgment, the Canada Pension Plan envisions that in addition to its benefits, there may be benefits available from private LTD insurance and the Act anticipates offsets. The amount of those private benefits is a matter of private contracting. The scope of the private insurance does not affect the scope of the CPP benefits; if qualified, the disabled employee and his or her dependents will receive their CPP benefits. The Canada Pension Plan is a first of benefits, and the CPP benefits are not affected by the availability of private insurance. The disabled contributor's child's benefits is the property of the child, and the child always gets the benefit of this CPP benefit; what is diminished by offsets is the amount paid in private LTD benefits to the disabled employee. It is not the responsibility of private insurers to maintain any particular level of the social safety net provided by CPP benefits. That is a government responsibility. Moreover, as far as I can determine from the evidence in this action, there is nothing contrary to public policy in permitting insurer and insured to control and limit the amount of private LTD benefits. Obtaining private LTD insurance is undoubtedly desirable, but the amount of it is a matter of private contracting and private financial capability. 95. Similarly, in this case, the Grievor's CPP benefits are unaffected by the fact she is disabled and accessed benefits under the LTD plan. She remains in receipt of her CPP retirement benefit. As such, it is illogical to conclude she is being discriminated against with respect of her entitlement to that benefit. 96. The real significance of the fact that the Grievor is in receipt of CPP benefits is that it impacts the calculation of her LTD benefit. In other words, there is a distinction being made not because of her disability, but rather because she receives CPP benefits. 97. The Human Rights code does not prohibit discrimination generally, but rather prohibits discrimination on the basis of certain enumerated grounds. There is no prohibition in the Human Rights Code of the making of a distinction with respect to the quantum of privately negotiated insurance on the basis of other sources of income, which is what is happening in this case. 23 98. 1 find there is no breach of the Code, or the collective agreement, with respect to the reduction of the Grievor's LTD benefit by the amount of CPP benefits she receives. VI. DISPOSITION 99. The grievance with respect to CPP pension deductions is denied. 100. The grievance with respect to the HOOPP deductions is upheld. I find the Hospital has breached the collective agreement by failing to provide LTD benefits equivalent to those available under HOODIP. 101. 1 direct the Hospital to ensure the Grievor receives LTD benefits to which she is entitled without any deductions for any amount in respect of a deemed HOOPP disability pension, and to reimburse the Grievor any amounts previously deducted on that basis, together with interest, within 45 days of this award. 102. 1 remain seized with respect to any issues relating to the implementation of my award. Dated this 27th day of June, 2014. -=11kI E. 24