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HomeMy WebLinkAboutTevens 99-06-07 L, 55¢. THE MATTER OF AN A~IT~ATION BETWEEN: GEORGE BROW~ COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE .MATTER OF THE GRIEVANCE OF I,¥'ENDY TEVENS - GRIEVANCE #97C450 023.5HIM25, Q.C. CPIAIKFEltSON F. COWELL NOMINEE FOP, THE COLLEGE P. SEVILLE NOMINEE FOP, THE UNION APPEARA%'CES ,iNN E. BURKE COUNSEL, and others for the College . HuGHR. SCHER COUNSEL, and others for the Union. A hearing was held in this matter at Toronto, Ontario on April 2, 1998 AVv~ARD The griever was a reacting master at George Bro~v= College, who had approximately twen: (20) years of service. The ~evor supers from c~o~c f~tig~e syndrome and other illnesses ~d sE was ~lso ir_volved in car accidents in 1987 and in 1992. TM g~evor wgs firs: employed by College in 1977 and ~br t~e pe~iod 1983 to 1997 s~e w~s the coordinator of Coux Legal studies at :i:: Collcg:. Ti~: griever had b:cn on sabbatical leave i= 1992 ~d of 1993, s'ze ~ed ~o fail-time ~eac~g. N September 1994, she applied for shon-:e~ disabilit benefiis ~der ~e Collective A~eement ~d subsequently N M~ch of 1995, she applied for ~d wa ~te4 long-te~ 4isabili~' benefits p~su~t to ~icle 18 of~e Collective Ageement. 22e ~evc contNued to receive long-te~ disabili~ benefits ~til Mack 6th, 1997, at wNc2 time ~e Sun Lif N~,ce Company te~inated her benefits on the basis tkat she was not totally disabled ~d wa able to work. TEe gievor sou~t reconsideration of her cl~m ad her cl~ was reviewed by joint ins~ace co~iXee constituted p~suat to Appehdix 4 of ~e Collecdw A~eement. claim was derhed ~d the ~evor now seeks to have her benefits re.stated. The College, by way o£a preliminary objection, takes the position that this claim is agains the Sun-Life Insurance Company of Canada and that the Collective Agreement does not impose obligation on the employer to provide benefits; accordingly, this Board of Arbitration is withot jurisdiction to deal with thc mart:r. Th: Cull~ge r:li¢s us: a numb=~' of d¢cisions by Boards Arbitration and the Courts which st:ggest there is no jurisdiction in a Board of Arbitration to de; ~,,rth matters of this sort. The College submiis that its 02ly obligation, pursuant to Article 18 of tk Collective Agreement, is to make deductions from the wages of the employees for the purpose the LTD plan. The CoIle~e submks that it is not an insurer and that 'any mention o£ a plan does not incorporate the insurance plan by reference into the Collective Agreement, that it is appropriate that ti~e right to the benefit be en£orced pursuant to the Collective Agreement. Tae Union maintains tha: :he sta~uto~' framework; as well as the Collective A~eemem, suggests tha~ the LTD plan has been incorporated into the Collecdv~ A~m'ccment ~y reference. The Union submits .. that Article 18, coupled with Appendix IV, indicates that 2he insurance policy is incorporated by reference kite the Collective Agreement. The Union submits that the benefit derives from the Colfective Agreement and is ~e governing factor and accordingly, thc Board of Arbitration jurisdiction to dete~mline the benefits provided by the Collective Agreement. The relevant provisions of the Collective Ageement are as follows: Article 17 SHORT-TERM DISABILITY PLAN (ST'D) Participation 17.01 A Effective April 1,1991, ail full-tfme employees shall be covered by this plan. Funding 17.01 B This plan shall be funded by the College. Waiting Period 17.01 C New employees wili be eligible for benefits under this plan from their first day of se~wice with the College. The annual benefit allocation described in 17.0i F shall be credited at that time. Benefit Year 17.01 D The benefit ),ear shall be September 1 to August 31. For the balance of the benefit year expiring August 31, i991, an employee will be credited with the unused credits, if ar% standing in the name of the employee on April 1, 1991, under the terms of a previous Cumulative Sick Leave (CSL) Plan, where applicable. Employees hired between Apri[ 1, 1991, smd August 31, i 99i, shall be credited with a pro-rated number of annual credits, depending on date of hire. Workers' Compensation and Other 5I'D Insurance 17.01 E Where a fuli-time employee is entitled to payments under the Workers' Compensation Act and Regulations, or is entitled to payments under any other short-term disabtIity insurance, such person shai[ be entitlect ~.o payments, where required, from this pl~ to supplement the amount payable under tine Workers' Compensation Act and Regulations, or such other insurance, up to the amount otherwise payable under this plan. Benefits 1701 F i During absences due to illness or injury., participating employees who would other":¢ise be scheduled to work shall receive 100% o£re~uiar pay for up to and including 20 working days in any one benefit year, plus any 'unused credits cra'tied forward from previous years. Days not utilized in any year shall be considered to be credits (on the basis that one credit represents 100% of regular pay for one working day) and shall be carried fo~'ard to the next benefit year. Debits shall be made from the total assigned benefit on a day-for-day basis. 17.0I F 2 During absences due to illness or injury in excess of the accumulated days referred to in 17.01 F i, participating employees shall be paid 75% of re~iar pay for ~? Lo th= dif±'crcncc between the number of accumulated days referred to in I7.01 F I and the date the employee would normally qualify, for LTD. i7.01 S 3 Where the qualifying period for LTD has expired, and the employee qualifies for LTD, and the employee still has credits standing in Ids or her name under this pis.n, such credits may, at the election of the employee, but utilized by the employee instead of LTD benefits, until the employee elects to take LTD benefits, if qualified. 17.01 F 4 Durb. g the period defined in 17.01 F 1, a participating employee who is absent due to injury or illness on the day before or after a holiday as defined in 16.01 shall receive pay for the holiday at the rate defined in 17.01 F 1. 17.01 F 5 During the period defined in 17.01 F 2, a participating employee who is absent due to injury, or illness on the day before or a~er a holiday as defined in 16.0~ shall receive pay for the holiday at the rate defined in 17.01 F 2. 17.-01 F- 6 Application for benefits under the plan shall be made at suck time and in such manner as the ColIe.~e shall determine and shall be supported by such medical evidence, if any, as the College ma.,,' require. Expiry of Credits 17.01 O Subject o 17.D1 Iff, upon retirement, layoff or termination of emp!o,~ent, any credits standing in the name of the employee shall be cancelled and shall be of no effect. p~ otection of Existing Rights i7.01 H Notwithstanding 17.0i G, employees hired before April 1, 1991, shall be entitled to utilize available credits (or portions thereoz) at the time ofretkement, termination of employm¢m o.~ layoff a~ ~ luanp-sum ~aruity calculated in accordance with the tern,,s of the pre-existing Cumulative Sick Leave Plans, where applicable 4 and wheze the employee is eligibie and shall not exceed th6 amount of one-half The empioyee's annual salaE/as of the date of separation. L ONO-TEPuM DISABILITY PLAN (LTD) 18.0! Employees shall pay the ~1i premium of the present Lon6-Te~ Disabilib, Plan, the benefit level to be 60% of basic mon~ly earnings reduced by: (~) ~:y ~b~ of sai~' continuation from ~,e employer or benefit from an employer sponsored retirement or pension plan; (fi) any basic dis~ii~b' Senefits payable from government sponsored income secufib' pro,rams (e.g. C/'QPP, ~'.C., U.I., or similar pro,rams); but this mount slna!l not be reduced by ~ounts payable ~der: (l) any privately sponsored ~oup dis~b~Iib' lnst=~ce plan; (ii) any increase in benefit ~sing from the C/QPP as a result of ~ adjustment in ~e Consmer Price ~dex. OT~ ~S~CE FL~S Extended ~ealt~ Plan 19.01 T~e C&]ege shall pay ]~0% of~e bi22ed prem~ o~e Extended Hea~ ?1~ for em~loyees covered t~ereby ~d sub~ec~ to ~e d~bili~ requiremeats ~ ~e Post Refiremen~ Extended Heal~h Coverage ~ 9.~2 ~e C&lege ~h~l ~clude eligible retked emFloyees ~ ~e Ex~e~ded Pi~ at ~e option of~e employee ~der ~e follo~g conditions: (i) ~e mtked employee sh~l pay to ~e College queerly N advice ~e ~I1 cost of~e pi= from ~e date ofretffement. (ii) Eligibiliv for such coverage shall be dependent won: - The employee qualiONg for benefits ruder ~e Colleges of Applied ~s ~d T¢cMolo~ Pension PI~ or the Teachers' Pension PI~. The employee maint~ning eligibiliv for benefits ~der O.H.I.P. The employee co~encing r~tirement on or ~er May 1, 1988. (iii) Ms,able benefits payable ruder O.H.I.P. shall not be payable under ~hc Extended MeaI~ Pl~. Dental Plan 19.03 A thc Colleges agee to pay 100% of~he billed premiums of an insured dental pi~ (the Plm0 b~=d on th= Ont=io Dental Aaaociation (ODA) schedule for the immediately prsceding ye~. 19.03 B Coverage shall apply', subjec~ ~o the &igibiliv requirements and coaditions of the Plan, to all eligible ~ll-~ime employees on th: active payroll and in the active employ of the College following the completion off six months .... continuous se:~'ice during the probation~y pe~od. Ih~se ehnp[oyees whose spouses .... are covered by a comparable pian may eIect to be covered bR' their spouse's pian. APPENDIX JO~-T I2'4'SURANC7-CONiNIITTEE Purpose of the Committee lA The pu¢ose of the Jeint ~s~r~.ce Co~t~ee is ro t~ctlitate co~m%cation between the CounciI of Regents and OPSEU on the s~b~ect of group tnsurm2ce applicabie ~o the Academic Staff B~gaining Unit, ~ncluding Basic Life, Supplement~ Li~ insur~c~, Extended HeattE ~sur~nce, Leng Te~ D~sabili~ ~'~ce, ~e Denrai PI~ ~d such o~er negotiated behests ~at may, from time to time, be ~cluded in the ~oup insur~ce pl~. 1B Nothing herein sh~l prevent ~s Co~i~ee from meeting jointly wire ~y cemp~abie co~uee, if establisEed, concemg tee Suppon Staff B=gai~ng U~t should it bc mumatly a~eed be~een ~is Co~i~ee ~d such o~er Co~i~ee, 1 C Iz is ~d~rs[ood tha~ ~e ~oup ~s~ce behests to b~ prodded to ~mploye~s · e ma~ers for consideration by ~s Co~ee sh~l be o~y ~ set out ~ ~¢se te~s of reference. Composition of the Commi~ee 2 ~e Co~i~ee s~Mi be composed of ~ equal n~ber of representatives ~om the Co~cil ~d OFSEU with not more meetings of~e Cc~i~ee eack p~ may be accomp~ied by up to ~o resomce persons to provide acm~aI or o~er tec~cal advice. Addition~ly, when necess~, representatives of~sur~ce c~ers shM1 a~end meetings to provide in~b~ation but shall ndt ac~ reso~ce persons for either Duties of Committee 3 The duties of the Co~i~ee shall consist of the following: (i) development of the specifications for the public tendering of any negotiated bene~s wMch may be included in the Group ~s~ce PI~ (to cover ~e b~gai~ng unit (ii) consideration and exminat~on of ~11 tenders ~ubmi~ed in response to the specihcations for render and preparation of a repom thereon; (iii) recommendation to the Co~cil of Regents on the selection of the insurance cm~i¢r ar ca, tiers ~o under,wire :he Group Insur~ncc Plans; (iv) consideration ~d reco~endarion to the Co~cil of Regents on tke renewal . ~ of existing contracts of insurance upon expi~; -" (v) review of the financial reports on t.he Oroup Insurance Fian~ and (vi) review of contentious claims and recommendations thereon, when such claim problems have not been resolved through the existing administrative procedures. Specifications for Public Tender eA YVhen spechfications for public tender are required to obtain the sec'ices of an insurance career, the duties of the Committee shall be to: (i) develop and recommend specifications for tender; (;i) co,sider and exsmine ail tenders submitted in response to the specifications; (iii) make a recommendation to the Council of Regents with respect to the seiection of a carrier(s). 4B The specifications for tender will describe the benefits to be provided, the cost sharing arrangernents, ~e past ffmancial and experience history, the appropriate employee data, the format for the retention, illustrations for each coverage, the financi~ reporting requirements, and other parameters as appropriate. The tendering processes will be conducted through the Ontario Govenunent's Public Tenders Office. Tenders shall be cntcrtaJmcd from tony insurance carrier and such can'/er may act solely on its own behalf or may arrange reinsurance as may be necessary. 4C The basis for reconnnendation cf an insurance carrier(s) ,,,rill include the abiliv of the carrier(s) to underwrite the plan, compliance of carrier's quotation with the spec~cations for tender, the carriers service capabilities and the expected long term net cost of the benefits to be provided. Policy Renewals 5A Following receipt of an existing insurance carrier's proposal for renewal of an insurance contracts, the Committee shall: (i) examine and analyse the proposal, assessing the completeness, fairness and validity of the proposal; iii) assess the lundin, methods employed in the insurance policy; (iii) assess and monitor the deposit accounts; " (iv) suggest and discuss alternative proposals and fimding methods with the c~.rrier; and (v) make recommendations to the Council of Regents with respect to acceptance of the carrier's renewal proposals, funding methods and deposit account administration. 5B The :aszs for recommendations for renewal will take into account tine level offsets'ice provided by the cartier and the expected long term net costs of the benefits. 7 .,. Experience Review .... .iA The Co~minee will aiso meet as required to review the financial experience under the plans. The snecifications for tender will describe the information be included in the financial statements to be prepared by the insurance career(s). dB These statements will include paid premiums, paid c:aims, changes in reserve requirements for open and for u~eported claims, incurred claims, the retention elements of commissions, faxes, administrative expenses, contingency reser¥'e ch~ges and inr. erest credits on claim and other reserves. The Comminee shall request C~.e insurance carrier(s ro provide such additional i~.t'orrr ation as may be necessary. Recommendations 7A If the Com_mirtee £ai.ls to agree on the recommendation to the Council of Regents that is contemplated by these Terms of Reference, the members of the said Commi~ee nominated by the Council and OPSEU may each make a recommendation ira writing to the CotmciI of Regents, supported by reasons for the respective recommendations. 7B I: is understood that the Council of l~eg~c~ at ~I tirne~ retain: thc right to select whatever cartier(s) to underwrite the ~oup insurance plan(s) it may.consider in the best interest of' the employees and Colleges and, in so doing, is under no ~-' .. obligation to select a carrier(s) that may be recommended by the Committee. This case is one of a number of similar cases over the years which involves a comqict between both substantive issues and also process issues. Oenerally~ an employer who is required to provide {ns~rance benefits to employees, seeks to have those benefits covered by policies of ~surance' thr~>ujh ~ insurance cartier. Employers, not being in ~e business of insurance, prefer that tie risk be borne by an insurance cartier and that the administration of the plan also be dealt with by ~u~ in~ance carrier. Aldmugh ~omc cm?Ioycrs self-insure benefits, mo~t employers contract ou~ this responsibiliD' to an insurance carrier. The CollectiYe Agreement, in those instances, usually makes some provision for payment ofpremk~s for the insur~ce, but the insurance policy is usualt5 not included in the Collective Agreement.'l.'hus, where there is an insurance currier, k is genprall? $ the intent that the employer, having contracted 'out its responsib:fiity'for insurance to the carrier, nc be responsible for any' benefits that might arise. The substantive dispute is whether the employe or :he insurance carnet is :es?onsible for the benefits. If the insurance cartier is liable for the benefit i: is usually the case that the matter be pursued in the courts.. On the other hand, tho employment relationship is covered by the Collective Agreement an{ it is the usual intent of the Collective Asreement, and the applicable legislation, that ail dispute~ between an employee and an employer arising from the employment relationship be dealt throu~ the c~-devance and arbitration process under the Collective Agreement. Indeed, the view tha matters of an employment nature should be pursued through the grievance arbitration process omc not ~through the courts has been approved by numerous court derisions as well as by arbitratio? awards. See e.g. St. Anne-Nackawi¢ Pulp and Paper Co. v. Canadian Paperworkers' Union. Loca 219 [1986] t S.C.R. 704 (1986), 28 D.L.R. (dth) 1. Thus, ther~ is a conflict between processini t~he matter through arbitration or processing the matter in the courts. Ln this case, the conflict arises because the grievor seeks to pursue her claim for insurance against the employer through the grievance arbitration process. However, this employer ha_-' contracted with the Sun Lihe Insurance Company and has assumed that ail matters arising from the insurance coverage be dealt with by that outside carrier, and accordingly, any dispute with respec ~o insurance ought to be dealt with in the courts bebveen the employee and the Sun Life Insuranc, Company directly. 9 There are many cases deahng with the problem at hand..Mogz refer to the four categories o~ obligations found in collective agreements that are referred to in Brown and BeaR' Cc7~,adian £a'&;ar Arbirr~rion 3rd Edition. in my view, to approach the problem, as some cases do, by aXempting tc slot the situation into the various categories is too mechanical. The better approach suggested b? other c~es is to approach the problem by going back m first principles, and determining the intent ? ; ',-, L.A.C. (4th) 151 (K. of hie parties. See e.g. Re Coca Cola Bott. lin*_ Ltd. and U.F.C.'~x,. (1994) a~, ~ Swan). Ip. determining intent two basic questions come quickly to mind. Did the parties intend o~ contemplate that the benefits be provided by taking out an insurance policy with an outside carrier? 2. If ~o, did thc parties intend that the employees have reeour*e both to the insurance policy and also to the employer under the aegis of the Collective Agreement? In answering the first question, if the employer maintains a self-insuzed scheme w/th, out using an outside career, that ends the matter and the grievance is arbitrable. However, where it is apparent that the parties have agreed there be m~ outside carrier one must move to the ~econd question. Clearty, a statement that requires the payment of premiums for an insurance policy, prima facie, demonstrateg an'inteht that there be an outside carrier. 2e£ore tm-ulna tc~ the second question, it is important to note that the arbitrator derives his&er jurisdiction from the interpretation, application, administration or violation of the Collective Agreement. To cast the problem in a different or simpIer way - the arbitrator derives his/her jurisdiction from "inMd¢" thc Collective Agreement and does not have jurisdiction to dea[ with an 10 insurance policy that lies ':outside' the Collective Agreement. lh'e task then is to determine i£th sorties have demonstrated an intent to bring :he "outs[de" policy, in who',e or in part, 'inside" th Collective Agreement so as :o confer jurisdiction on the arbitrator to deal with the ma~er. See Weber v. Ontario Ev,,-iro (1995) 125 D.L.R. (4th) 58.1, [t995] 2 S.C.R. 929. Many Collective Agreements incorporate the insurance policy,, in whole or in part, reference into the Collective Agreement; that is, they have brou~oht the insurance policy ~fnsifle" Collective Agreement so as to conferiurlsdiction on the arbitrator. See e.g. Pilon v Intemationa Minerals & Chemical Corp. (Canada) Ltd. (199¢) 141 D.L.R. (4th) 72. Incorporation by referenc i~ a r~ladvely ~asy m'a~[~r. All that i~ necessary, Jr'or cxam?i¢, is to use language that provides th~ the ~ourside" insurance policy shall be a part of the Collective Ageemenr or to attach the insuranc policy as an appendix to the Collective Ageement. Incorporation by reference should not confused with those situations where the employer agrees to provide cettah~ itemized benefit or menu of benefits by way of an outside insurance policy. The mere mention of benefits to provided does not mean that those benefits are incorporated by reference. Of course, the insuranc~ policy may be compared to the benefits that the employer has agreed to provide to determine if thor is any shortfall or deficiency which might render the employer liable for breach of its primar undertaking ,ruder the Cotlecti'~e Agreement to provide such benefits. See e.g. Re McDorme Dou~Ias Canada Ltd ~d C.A.W. Local 1967 (1992) 25 L.A.C. (4th) 21~ (O.B. Shime). Bearing those princiFles in mind, I now turn to examine the Collective Ageement and to first question, which is to determine whether the parties intended that the benefits be provided lI .:,:. . · taking out an insurance policy with an outside cam-{er. It is interes~:in_~ to compare Articles 17, l f: and 19 of the Collective Agreement. Article l 7 provides for a outlines who shall pm~ci~a~e, ~he waifin~ period, ~he bene~ ye~ ~he relationship m payments undo: ~he Worke;~' Compensation Ac~ and o~ker sho~-~e~ disabiiiw more impo~ant, under A~ic[e I T.01B "This plan shall be ~nded by the College". What we have is a comprehensive ST~ pi~, soil-insured by the employer, ~d set ou~ in ~e Collective A~eemem. so as to provide employees proccdu:al the employe~ is directly liable for ~y deficiency ~ ~e STD pl~ The 8TD plan may use~lly be compared to ~e Long Term Disabiliry Plan (I~TD) under Ai~Jcle 1 $, which is not funded by the College, but which requires the employees to "pay thefid~ premium" of the present Long Term Disability, Plan, with a benefit level 0£60% oft. he basic monthly earnings with certain reductions. Also, comparison should be made to Article 19 which provides that ';the College shaI1 pay 100% of the billed premium of the Extended Health Plan" and to a similar provision in Article 19.03A with respect to the Dental Plan. W'hen the LTD plan is examined in the context of the other plans and benefits, and more particularly, where the LTD plan is jm, ctaposed with the STD plan and or. her plans there emerges a clear intent to cover ~e risks, inherent in an LTD plan, by utilizing an outside insurance carrier. That intent is confirmed by the actual practice because Sun Life Insurance Company' has been the ':outside" insurance carrier for the LTD ?b~n since 1972. Also -.he gfievor received benefits from ~e Sun Life Plan for mn [nkiai period and unto Sun Life determined she was not totally disabled. !2 Ha, m, determined that the parties intended to cover tie LTD risks by utilizing an outside ca,!er, f now turn to the second question, which is to dete~ine whether the panics intended that the employees have recourse to the insurance policy and to the employer under the Collective Agreement. A~er considering the Collec~ive Agreement, ~d 2a~icutarly the contex~ of the LTD plan, ~d the compmdson to the STD plan, i: is our view, the panics intended the LTD plan exisl ;'outside" the Collective Agreement and that the employees have a direc: relationship to the LTD plan and :o the fnsur~ce company There k no ~ntent that the emptoyer be responsib[e for the benefits under the LTD pl~ in the s~e m~er as the STD piton. The relationship between the ~s:~ce c~er ~d ~e employees is a direct one, ~ the employees pang ~e premi~ directly, ~pd, *ccordingiy, ~¢r¢ ia no baaia for the ~uggestion that the employer h~ ~y liabfli~ for LTD benefits, nor does the I~guage evince ~ intent that the employees shall have access to the under the auspices of the Collective A~eemeni. ~deed, a reading of the Agreement a a whole sugge~s othe~se. Initially, ~ere is a requirement that the employee pay premiums, which prima facie, indicates an intent that matters be dealt with by an outside carrier rat. her than the employer. The Ul,Jon argued that Appendix Iv', which provides for a Joint Insurance Committee, buttresses the position teat the LTD Dian is incorporated by reference into the Collective Agreement. l-Iowever, Appendix IV is quite specific and clear in its intent. Part lA of Appendix IV specifically states that the purpose of the Corrxnivtcc ia 'ko facilitate communication betv¥'een the Council of P_e?ntq and ©P~7.I )' on the subject of group insurance", That statement denies any intent by the parties that by providing a Joint Insurance Con~ittee they intended to incorporate by reference those group insurance plans into the 13 Coiiective Agreement, Also Part 1 C of Appendix IV suggests that the group insurance benefits to be provided are set out in the "applicable agreement", which in context means the applicab[e insurance plan or agreement and limits the matters tbr'c~nsideration by the Committee to the "terms of reference" in the Collecdve Agreement. Alternatively, even if the reference to Agreement means Collective A~eement, ~at does not negate the very tenor of the appendix which is to have claims paid by the various insurance carriers. The reference to the benefits and cost sharing arrangement being set out in the apFlicable agreement refers only to the employer's primary obligation, which is to ensure that thc insurance plans which it obtains are consistent with its obligations under the Collective Ageement. The reference, in context, does not incorporate the insurance plans into the Collective Agreement because the clear intent of the parties is to have the Lnsurance carrier bear the risk and pay for any claims. It is also apparent that the terms of reference contemplate that negotiated benefits are to be included in the Group Insurance Plans and that an insurance carrier, or carriers, is to underwrite the plans. The Committee is to review public tenders to obtain the services of aa insurance carrier and make a recommendation to the Council Of Regents with respect to the selection of a carrier and the Committee is to consider existing carrier's proposal for renewal of an insurance contract and make recomhnendatlons. Also the Committee is to review the fin~mcinl expense under the plans and thc financial statements of ~he c~Tiers under Part 6B are to include paid premiums,poid cicfim~, c),rT~ge~, in rezer~e refzfire~e,~.tx for open ~nd for zl~re£orted cic~irsx, incurrer[ cI:,im.~ etc. Pa~ 7B provide~ I4 ,, that the Council of Regents retain the right ~'to select whatever caivfer(s) to underwrite the group insurance pf n(s~ ..... The Appendix and the provisions contained therein make it perfectly apparent that "outside" insurance careers are :o be retained and that t.hose carriers wilt pay the claims and underwrite the group insurance plans. The intent of the parties demonstrates that matters falling under group insurance plans and particularly the LTD plan Me the concern of'the outside insurance carrier and negate any possibility that the oarties intended that the Ontario Council of Re~ents be responsible for paying or unde~wrriting claims. The whole tenor of the Collective A~eement, in our view, is to have the LTD plm: adm2nlstered and the beneflt~ p~ict :%utside" the Collective A~eement by an insurance carrier. The mere mention of a plan, and the utilization 0£ a committee for the purposes enumerated, does not in our view incorporate the LTD plan, either in whole or in part, into the Collective Agreement. Also the ability o£the Con:mxitte¢ to rcview contentious claims and make recommendations thereon, does not in context incorporate the plan into the Collective Agreement. S/ncc that plan lies outside the Collective Ageement and since this board of arbitration is restricted to deMing in the-matters "inside" or under the aegis of the Co2ective Agreement, we have no jurisdiction to deal with the issues raised. The preliminary objection by the employer is allowed and the grievance is dismissed. However, as a footnote we wish to indicate that as a result of the decision in Pilon v International Minerals & Chemical Corp. (Canada) Limited inffa, some concern has arisen in the collective bargaining commur.!W as to the proper forum to resolve c'laim$ for insurance benefits. grievor and the Union, in good f~ith, have proceeded to Follow the arbitration route rather than proceed in the coups ~n o~der to resoIve Ms. Tevens' dispu:e. This board of arbitration decision in anticipation ~a~ tee issue would be resolved by the coups. See, Sun Li~e Assura~c Company of C~ada v National Automobile. Aerosoace Tr~spo~ation and General Workers Unic o~ Canada and Hone,,~,velL Limited'Aerospace Division ~d ~oXon ~. Mitc~ick u~epo~ed, 199 (Div. Ct.). Hope~Jly, the ~Hevor, ~n these circumstances, will no't be prejudiced by ~y dela because she elected to proceed by w~y of arbi~ation. 16 ...' .... DATED ATTORONTO THIS "{~' DAY OF ' 1999. O.B. SHLME, Q.C. CE~RPERS ON "ICONCUR' F. COWELL NOMINEE FOR THE COLLEGE DISSENT ATTACHiBD P. SEVILLE NOMINEE FOR THE UNION GEORGE BRO'~I, ~q COLLEGE/ONT,~RiO PUBLIC SERVICE EMPLOY-SES' L,~'NION, IN Tale YLATTER OF THE GRIEVANCE OF WINDY TEVENS. F1AE #97C4f0 Pauline R. Seville - Dissent I have read the Majorirf Award and with respect, I fred I must dissent. I agree with the Majority when it states that to approach these problems as some cases do, by' artemptSxg to slot these situations/2to the four Browa2 & Beat-t-y,' categor/es can be too mechanical. Faced with the current unsettled state o£the law on cases like these, I also agree that a better approach to these situations is to go back to first pr/_n¢iples and determ/ne the intent of thc part/cs, by answering these two questions. 1. Did the part/es intend or contemplate that the benefits be provided by taking out an insurance policy with an outside carrier? 2. tf so, did the parties intend the employees have recourse both to the insurance policy and also to the employer trader the aegis of the Collective Agreement? I also agree with the Majonty that when the LTD plan is juxtaposed with thc STD plan there is a clear intent to cover the risks inherent by utilizing an outside insurance carrier. But answering the question of who bears the risk of paying a claim, is not determ/nafive of the issue. In my view you have to go further and determine whether the Employer has an obligation to provide the benefits, when the Insurance Company is no longer prepared to assume the risk of paying the claim hi question· Deterrnhaing who bears the risk of pay/rig an LTD claim, is not the same as determining who has an obligation to see that the benefits are provided, and what should occur in the event they are not. -2- While t.he Lnsurance Company bears the risk of pavin'g the claim, th/s does not alleviate the Employer from meeting irs obligations under the Collective A~eement to see that the benefits are provided. Under the Academic Collective Agreement the Employer undertakes cena~ obligations with respect to the employee, specifically I want to make note of'. Article I8 LONG-TERM DISABILITY PLAN (LTD) 18.01 Employees shall pay the full premium of the present Long-Term Disabiliv Plan, the benefit level to be 60% of basic monthh, earnings reduced by: (emphasis added mine) Articte 18 has to be read in ¢onjuaction with thc language contained in Appendix 1V Joint Jnsurance Committee, wE/ch stipulates in part: lA. Long Term Disab/lity Insurance ... and such other negotiated benefits that may, from t/mc to time, be /ncluded in the group insurance plan, - and - lC. It is understood that the group insurance benefits to be provided to employees and the cost sharing arrangements shall be as set out in the applicable Agreement and the .matters for consideration by this Co _mmittee shall be only as set out in these terms of reference. (emphasis added mine) In my view; th/s language can only be interpreted to mean that the Employer and the Union have negotiated the level of benefits to be provided and therefore a failure to provide those benefits is arbitrable. Further the use of the words ~'applicable Ageement:' in Appendix iV, lC, of the Collective Agreement can only mean the applicable Academic or Support Collective Agreement, because group insurance coverage is referred to in the Collective A~eement as the "Plan," it is never referred to as the '~Agreement." To hold otherwise means the Employer can negotiate with the Union about the extent, VFe and level of benefits to be provided and then contract out of this obligation - vs - risk by signing an insurance contract, to which the Union is not a si~ato~, This proposition does not make for sound labour relations. The Colleetive Agreement' clearly' refers to negotiated benefits and this makes the provision or failure to provide these benefits arbitrable. x/X/hen the Majofi%' states at p. 12 that the relationship between the insurance carrier and the employees is a d/feet one, I disagree. There is no direct relationship beW~'een the employee and the insurance carrier and employees are ordy eligible for benefits by v/true oft. heft employment relationship. The employee does not contract w/th the insurance carrier, the Employer does. The Majority' comments on the ease of incorpc~rating the Insurance Policy, in whole or in part, by reference into the Collective Agreement. The Un.ion believes it has done this by virtue of the language contained in the Collective Agreement, and as noted in the Majority Award, the Plan w/th Sun Life Insurance Company has bccn /n place since 1977. When the Majority states at p. I4 that "the ability of the Committee to review contentious claims and make recommendations thereon, does not in context incorporate the plan into the Collective Agreement.",. I disagree. The overall intent of the parties w/th respect to the function and purpose of the Committee was that they have an active role in thc resolution of disputes. Moreover, the parties clearly addressed LTD benefits in the Collective Ageement and one would expect that as a resu. It they would have the r/~t to enforce any disputes throug& arbitration. As an aside, one can orfly speculate as to why these issues are arising now, some 22 years after the Plan has been in e~stenc¢, m~d iikcwise speculate upon how easy ~t will be to incorporate the Plan in the Collective Agreement, faced with a decade long climate of take-away and concession bargam/ng. One can only hope the Mnllennium w/Il usher m a new era of collective bargaining that allows for ~provements, t/me will tell. Who then be~s the responsibiliu for tak/_ng on the issue of a disallowed claim .~, when ~he insurance Company determines it will not continue to pay the claim in - question? rllqe Union is not a signato~' to the insurance Contract, the Employer is. Does this irnpose any obligation on the Employer when the Insurance Company is taking a position they wSlI no longer continue to pay s claim, ~ believe it does. ¥¥~o best to pursue a claim against ~e Msurance Company, the Employer who is a signato0' to the Insurance Contract, or Ms. Tevens who is now without :tinanciaI resources as a result of the Insurance Comply cur~ing off her benefits. In my view the answer is that it is thc Employer who has an obligation under the Collective Ageement to see that certain benefits are provided to an employee, because that is what ',vas negotiated. If the Insurance Company is taking the position that it will no longer assume the risk of providing that benefit, then the Employer must provide the benefits in place of the Insurance Company and as a signatory to the Insurance Contract the Employer is then free to sue the Insurance Company in Civil Court to recover the cost of continuing to provide the benefits in question. The Majority states the employee can sue the Insurance Company in Civil Court. This is true. But as a practical matter, how are affected employees supposed to do this? They have no income and are sick. The ~mSevor in this ease, Ms. Wendy Tevens is 55 years old and has 20 years of service with the College. In Ms. Tevens LTD case, the Sun Life Insurance Company assumed the risk of paying her claim for a period of 2 years, at which time the Insurance Company terminated her benefits. Ms. Tevens suffers from severe chrome fatigue syndrome, fibre myalgia and other illnesses. In conclusion, the best solution in these types of cases is not to have either the Employer or Employee go to the courts as a first resort, but to have these matters dealt with at arbin'atfon. This allows the parties to: - Test the terms of the Collective A~eement they have negotiated in good faith; and - Provide m~ accessible forum for employccs to have their claims adjudicated; and