HomeMy WebLinkAbout1995-0131.Latimer.00-03-13 Decision
o NTARlO EMPUJYES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARlO
.. GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 0131/95 0132/95 2132/95
OPSEU # 95A500 95A501 96C063
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees Umon
(Latlmer)
Grievor
- and -
The Crown In RIght of Ontano
(Mimsm of the SohcItor General and CorrectIOnal ServIces)
Employer
BEFORE Susan D Kaufman Vice ChaIr
FOR THE Nelson Roland
GRIEVOR Bamster & SOhCItor
FOR THE AJamu BoardI
EMPLOYER Staff RelatIOns Officer
Mimsm of the SollCltor General and Correctlonal ServIcescs
HEARING Jan~ 17 18 19 31 2000
FIFTH INTERIM RULING
In December 1999 shortly after a bnef heanng of argument wmch resulted m the
Fourth Intenm Ruhng m tms case, the Dmon requested that a teleconference call take place m
order for It to present a mOTIon for mtenm rehef for the gnevor The employer agreed that the
matter be handled by conference call On December 23 1999 a teleconference call took
place The partIcIpants were Mr Roland as Counsel for the Dmon, and the gnevor Noella
LatImer and Larry McGregor and Peter Slee for OPSED and Mr Boardi for the Employer
and Supt. Roger Chenard, and me, as Vice-Chair The gnevor had been absent from work
smce May 9 1999 She had receIved short term SIckness plan benefits thereafter whIch were
exhausted, for the purpose of thIs mOTIon for mtenm rehef only on or about November 7 1999
There IS some outstandmg questIOn as to the exact date She had apphed for Long Term
Income ProtecTIon (L TI.P ) benefits but was not yet m receIpt of them.
The gnevor's counsel requested the followmg rehef on December 23 1999
---an mtenm order dIrectmg the employer to conTInue to pay the gnevor short term
SIckness plan benefits and dIrectmg that If the gnevor receIves L TI.P benefits while receIvmg
short term SIckness plan benefits from the employer the gnevor will be reqUIred to reImburse
the employer for any overpayment of benefits wmch may result from her receIpt of both
benefits,
---a ruhng that the employer's request for a mandatory medical IS not appropnate as the
gnevor IS off work and applymg for L TI.P
---alternaTIvely If the gnevor IS directed to attend the mandatory medical exammaTIon
requested by the employer an mtenm order directmg the employer to extend her short term
SIckness plan benefits until the date that the medIcal report resulTIng from the mandatory medIcal
exammaTIon IS receIved,
---alternaTIvely an mtenm order dIreCTIng the employer to grant the gnevor paid leave of
absence
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It was not m dispute that m 1997 pnor to the commencement of the heanng of the
eVIdence pertammg to the gnevances now before me, the gnevor had apphed for L TI.P
benefits and that on or about August 6 1997 the employer had agreed to place her on a leave
of absence wIth pay for a penod of one month, subject to certam condItIOns, (see Consent
Order dated August 6 1997 m the First Intenm Rulmg dated February 3 1998), pendmg the
determmatlon of her L TI.P apphcatlon. The details of any further finanCIal arrangements to
aSSIst the gnevor finanCIally pending the determmatlon of her L TI.P entltlement m 1997 are not
part of the eVIdence before me. The gnevor returned to work around the begmmng of
December 1997 havmg been off work for medIcal reasons smce about Apnl4 1997
The employer resIsted the Dmon's request for mtenm rehef. Counsel for the Dmon
stated that the Dmon's mformatIOn was that the preVIOUS occaSIOn m whIch the gnevor apphed
for L TI.P the employer submItted that she was not disabled. No documentary eVIdence for
thIs statement was submItted. However as Supt. Chenard rephed "we haven't done that thIS
tlme" to Dmon Counsel's statement, I find It reasonable to Infer that Dmon Counsel's statement
regarding the CIrcumstances whIch formed the background to the employer's agreement to
place the gnevor on paid leave of absence m 1997 was correct. Supt. Chenard speCIfically
demed that the employer had opposed the gnevor's current apphcatlon for L TI.P
With respect to the request for a rulmg that the request for a mandatory medIcal
exammatlon was not appropnate, the Employer's representatIve Said that he was surpnsed by
the Dmon's request and that he did not see the connectIOn between the Dmon's submISSIons
and the rehef he was requestlng.
The Dmon Imphed that the gnevor had not yet receIved her L TI.P benefits and was
WIthout an mcome as a result of some actIOn or default on the part of the employer These
suggestlons were not supported by any documentatIOn and were reSIsted by the Employer The
December 23 1999 teleconference call was adjourned when the partIes were unable to mdIcate
the status of the gnevor's apphcatlon for L TI.P benefits and the reasons for any delay m ItS
determmatlon and why the gnevor was WIthout mcome from other sources to wmch she may
have had some entltlement (Employment Insurance and Canada PenSIOn Plan disabihty
3
benefits), and when Umon Counsel advIsed that he had to catch a plane The partIes agreed to
a further teleconference call on these matters early m the New Year
A further teleconference call took place on January 5 2000 WIth the same partICIpants
It can be charactenzed as m part a fact-findmg effort, WIth argument. The partIes had
forwarded copIes of some documents and correspondence to me and to one another regardmg
the request for a Mandatory MedIcal exammaTIon and the LTIP apphcatIOn by January 5 2000
and affidavIts by January 31 2000 wmch, together WIth theIr unsworn statements and the
submISSIOns of theIr representaTIves on December 23 1999 and January 5 and 31 2000
enable me to conclude the followmg as a factual background, whIch I have separated mto two
Issues, the gnevor's request for an mtenm order that the employer proVIde a form of mcome
conTInuance subsequent to the cessatIOn of her short term SIck benefits m November 1999 and
the request for a ruhng regarding the Mandatory MedIcal exammaTIon sought by the employer
A) The Request for Income ConTInuance
On September 27 1999 the employer wrote a letter addressed to the gnevor saymg
that the Mimstry was "applymg for Long Term Income Protectlon Plan benefits on [her] behalf'
The letter mstructed her to complete the ClaImant's Statement Form and to have the Attendmg
PhysIcIan's Statement form completed by her doctor It SaId that a 1999 Personal Tax Credit
Return was enclosed and that It was to be completed and forwarded to the Insurance
Company It contamed the follOWIng paragraph.
Please return WIth the above forms, a copy of your Canada PenSIOn Plan
"Award" or "Dechne" letter If you have not yet receIved thIS letter send
m the above forms and attach a note that you WIll send the Canada PenSIOn Plan
letter when receIved. If you have not yet contacted the Canada PenSIOn Plan
office WIth regard to your ehgibihty for a disabihty allowance, you should do so
It IS located at 319 Lasalle Blvd. (TaxaTIon Bldg)
The letter adVIsed the gnevor that she had the opTIon, applymg for L TIP benefits, of havmg the
carner WIthhold the eSTImated CPP portIOn and paymg her the balance of the L TIP enTItlement,
or receIvmg the full 66 2/3% salary from the carner and repaymg the CPP portIon when the
4
CPP award has been approved. The letter requested her to complete an attached "CPP
agreement" The letter was sIgned by Karen East, Office Manager
The gnevor Said that she dId not receIve the September 27 1999 letter The letter was
prepared by Ms. East. Ms. East did not provIde an affidaVIt. The affidavIt of Sherry LOIselle,
Personnel Clerk, sworn January 28 2000 speaks, on mformatIOn and behef, to Ms. East
havmg SIgned a letter dated September 27 1999 addressed to Ms LatImer It does not speak
directly to the letter havmg been sent or the manner m wmch It was sent. I am therefore unable
to ascertain WIth any certainty on the baSIS of the gnevor's statements made on January 5
2000 and on the statements m the affidaVIt of Sherry LOIselle, that the September 27 1999
letter wmch was clearly prepared by Ms. East, was sent to or receIved by the gnevor
Supt. Chenard adVIsed that m the ordinary case, the employer can start an L TIP
apphcaTIon m the fifth month of absence, and the claim will be honoured WIthout a lapse m
benefits coverage. It was not m dispute that the Umon does not have the necessary forms to
commence an L TIP apphcaTIon. He adVIsed that If an employee wants to commence at L TIP
apphcaTIon earher than the fifth month, he or she can request the forms from the employer
An Employer's Statement appears to have been prepared for Manuhfe FinancIal E.
Pedron's name IS mdIcated as the "authonzed OffiCIal" certIfymg that Ms. LaTImer was "msured
m accordance WIth the above partIculars" The date of September 30 1999 appears on the
Employer's Statement.
A letter dated October 5 1999 from Jane Culp, Claims Adjudicator Toronto Group
DISabihty ClaIms, Manuhfe FinanCIal to Mr Pedron, marked "cc Ms. Noella LatImer"
acknowledges receIpt of the Employer's Statement and states
ThIs claim has been pended aWaiTIng receIpt of the Attendmg PhysIcIan's
Statement and Claimant's Statement.
The October 5 1999 letter also requests the employer to confirm whether the LTIP premIUm
payments conTInue to be maIntamed, and states that they should be mamtamed until Manuhfe
FinancIal renders a deCISIon, and If premIUm payments have ceased, requests the employer to
proVIde the last date of payment and reasons for cessaTIon of premIUm payments.
5
The statements, submIssIons and affidavIts did not estabhsh whether the employer
responded to the request for mformatIOn regardmg the mamtenance of the L TIP premIUms at
any TIme. There IS, however msuffiCIent mformaTIon before me to conclude that thIs possible
lapse mterfered WIth the determmaTIon of the gnevor's enTItlement to L TIP benefits.
A letter dated October 22, 1999 from Jane Culp Claims Adjudicator Toronto Group
DIsabIhty Claims, Manuhfe FinancIal to Mr Pedron, for the employer marked "cc. Ms. Noella
LatImer" adVIsed Mr Pedron that she wrote to mm on October 5 1999 requesTIng additIOnal
mformaTIon neceSSaIY for the conTInued handhng of the gnevor's L TIP claim and has not
receIved a response A note to Ms. LaTImer appears at the bottom of thIS letter beSIde "cc
Ms. Noella LaTImer"
Please submIt the Attending PhYSICIan's Statement and Claimant's Statement as
soon as possible
Sherry LOIselle stated m her affidaVIt that she understood from her telephone conversaTIon WIth
Ms. Culp followmg receIpt of the October 22, 1999 letter that Manuhfe FinancIal did not
reqUIre any further mformaTIon from the employer and that Manuhfe was aWaiTIng further
mformaTIon from Ms. LaTImer
The gnevor did not mdIcate that she had not receIved the letters from Manuhfe dated
October 5 and 22, 1999 For the purposes oftms mtenm proceeding, I therefore conclude that
she probably receIved them.
On November 9 1999 Ms Culp for Manuhfe wrote to Mr Pedron, for the employer
"cc Ms. Noella LaTImer" acknowledgmg "that the claim submItted on behalf of the above-
named msured was receIved m our office on November 8 1999" Ms Culp's letter stated that
the claim "has been pended aWaItmg our reVIew of the documentatIOn proVIded. Should any
addiTIonal medical mformaTIon be reqUIred you will be nOTIfied." Ms. Culp's letter again
requested the employer thIS tIme m boldface type, to confirm whether the LTIP premIUm
payments conTInue to be maIntamed, and that they should be maIntamed until Manuhfe FinanCIal
renders a deCISIOn, and If premIUm payments have ceased, please proVIde the last date of
payment and reasons for cessatIOn of premIUm payments.
6
No statements or submIssIons were made, orally or by affidavIt, WIth respect to
Manuhfe's request for mformatlon on October 22, 1999 regardmg the mamtenance of the LTIP
premIUm payments.
The gnevor dId not mdIcate that she had not receIved the November 9 1999 letter from
Manuhfe F or the purposes of thIs mtenm proceeding, I therefore conclude that she probably
receIved It.
On November 10 1999 Ms LOIselle, then Personnel Clerk m trailing at the Sudbury
Jail under the supervIsIon of Ms. Sandy Anderson, wrote to Ms. Latlmer on behalf of the
employer advIsmg her that as of October 18 1999 she "wIll be receIvmg 75% pay" and
effectIve November 7 1999 her short-term SIck credIts "are exhausted" and she "wIll be taken
off the payroll" The letter also stated "If necessary you may apply for employment msurance
benefits." Ms. LOIselle enclosed an Optlon to Make PenSIOn Contributlons WillIe on Leave of
Absence Without Pay and asked her to mdIcate whIch benefits she WIshed to keep m force
Paragraph 14 of Ms. LOIselle's affidaVIt states that she also enclosed WIth the November 10
1999 letter a Leave of Absence request/authonzatlon whIch was apparently prepared for Ms.
Latlmer to SIgn.
In paragraph 15 of her affidaVIt, Ms LOIselle states that "on or about November 10
1999" she had a telephone conversatIOn WIth the gnevor and mformed her that she was gomg to
send the November 10 1999 letter that she had wntten and "told her what the letter Said" In
paragraph 16 of her affidaVIt, Ms. LOIselle stated that she "mailed" Ms. Latlmer her letter of
November 10 1999 "on or about November 16 1999" and also states
On or about November 16 1999 I made a notatIOn on the top nght comer
of a copy of my November 10 1999 letter I made the notatIOn to remmd
myself when I had sent Ms. LatImer my November 10 1999letter
However the handwntten note on the November 10 1999 letter from Ms LOIselle states "sent
by Purolator Nov 16/99 BIllladmg 15829288099" On January 5 2000 the gnevor stated
that she had never receIved It, and her counsel Said that he had not seen the November 10
1997 letter from Ms. LOIselle until the employer produced It recently He and the gnevor had
been m attendance at the contlnuatIOn of the heanng of the gnevances before me m Sudbury on
November 17 and 18 1999 he pomted out. Any attempt at dehvery on those days would
7
have been difficult, and he pomted out that the employer had prevIously assumed that dehvenes
had occurred whIch had not been the case The Umon's mformatlon was that Purolator had
returned the letter as undehverable He submItted that the employer sent It on a day when It
knew the employee was at a heanng. There was no eVIdence to support the latter two
allegatlons.
A sIgned Bill of Lading WIth the SIgnature of the reCIpIent was not produced. Some
questlon remams, as a result of the fact-finding exerCIse, notWIthstanding Ms. LOIselle's affidaVIt,
as to whether the dehvery of the November 10 1999 letter had been effected. I am unable to
conclude WIth any certamty on the mformatlon before me that Ms. Latlmer receIved the letter
from Ms. LOIselle dated November 10 1999
On or about November 16 1999 Ms Culp for Manuhfe wrote to Mr Pedron for the
employer cc. Ms Noella LatImer and stated
We have completed our reVIew of the documentatlon proVIded and have
determmed that, unfortunately the present medical Informatlon IS msufficIent to
enable us to determme Ms. Latlmer's ehgibihty for total disabihty benefits.
We have, therefore, wntten directly to the msured's phYSICIan for additlonal
medical Informatlon m order to determme the extent of Ms. Latlmer's disabihty
We WIll notlfy you of our deCISIon as soon as we have receIved and assessed
the requested Informatlon.
The "cc" to Ms. LatImer m the November 16 1999 asked her to "complete and return the
enclosed Claimant's QuestlonnaIre to thIS office Kmdly complete and forward consents to
respectlve phYSICIans."
On January 5 2000 the gnevor Said "WIth the November 16 letter they sent me
releases for two other doctors" and Said that the Claimant's QuestIOnnaire and two releases
"came m a package between November 16 and 24 1999" and that she returned the Claimant's
QuestlonnaIre shortly after December 6 1999
Ms LatImer stated on January 5 2000 that she proVIded a release to one doctor on
November 25 1999 a release to a second doctor on December 6 1999 and a release to a
thIrd doctor on December 10 1999 She also Said that she understood that as of January 4
2000 Manuhfe had not yet receIved a report from Dr Morelh, although she had proVIded a
release to hIm. She Said she had seen Dr Morelh on December 10 1999 She Said that she
8
beheved she had apphed for c.P.P DIsabihty benefits at the begmnmg of October and that on
January 4 2000 she had receIved a letter requestlng further mformatlon regarding her
apphcatlon for those benefits. She Said that she had not apphed for Employment Insurance
benefits at that pomt, January 5 2000 "because It was two weeks for LTIP" I conclude from
her affidaVIt that she had apphed for Employment Insurance benefits by January 17 2000 the
date of her AffidaVIt.
According to paragraphs 10 and 11 of Ms. LOIselle's affidaVIt, the gnevor receIved a
paycheque on November 25 1999 for the penod from November 1 to 14 1999 and she
receIved more money for the penod October 18 to November 14 1999 than she was entltled
to under the collectIve agreement. No documentatlon was presented to support tills statement
and I draw no conclUSIOns as to whether the gnevor was paid appropnate1y or mappropnate1y
for tills penod.
On January 5 2000 Mr Chenard stated that the employer was not a banking
mstltutlon, that the gnevor was seeking differentlal treatment as compared to the manner m
willch other employees expenencmg a lapse between short term and long term coverage were
treated, and that assIstlng the gnevor would gIve nse to other employees bnngmg SImilar claims
to the employer He Said he dId not have the authonty to agree to any payment of the gnevor
pending the outcome of her L TIP claim.
On or about January 24 2000 Ms. Rhonda Fraser DIsabihty AdjudIcator on behalf of
Manuhfe FinanCIal, mformed the employer by letter "m accordance WIth the terms and
condItlons of thIS pohcy no benefits are payable to the msured" and that the gnevor could
submIt a wntten request for reconsIderatlon of the claim along WIth any documentatlon she may
WIsh to have Manuhfe mclude m the reVIew
B) The Request for a Mandatory Medical exammatlon.
From the same sources, I am able to conclude the follOWIng regarding the request that
the gnevor partICIpate m a Mandatory Medical exammatlon.
The gnevor was on leave of absence for health reasons, and receIvmg short term
SIckness benefits under Art. 44 follOWIng an unfortunate and regrettable mCIdent willch
9
occurred on May 9 1999 m whIch she feels she had been harassed by a member of
management. There IS no gnevance before me concernmg that mCIdent. She beheves that the
conduct to wmch she was subjected on May 9 1999 caused her condItIOn to worsen and
caused her to become extremely ill That mCIdent arose wmle a heanng before me mto a
number of gnevances brought by the gnevor allegmg that she was bemg harassed and
discnmmated agamst by the employer was ongomg. Her physIcIan, Dr P filled out a Request
for Employee Health Informatlon Form dated May 31 1999 m wmch he mdIcated that there are
"medIcal/health conditIOns whIch account for absences from the workplace or would affect the
employee's abihty to perform hIs/her dutles" and, m the space m wmch he was asked to
describe the employee's specIfic work-related hmItatlons and/or restrIctlons, he mdIcated that
she would be off work for 2 - 3 months "for medIcal reasons whIch are confidentlal"
The employer has agreed that It IS not entltled to know the medical reason for the
gnevor's mabihty to work, and that the gnevor has the nght that the reason remam pnvate and
confidentlal. It has not asked for a diagnOSIS or for the IdentlficatIOn of any medicatlon wmch
may be prescribed for the gnevor
The May 31 1999 Employee Health Informatlon Form states that the duratIOn of
hmItatlon(s) and/or restrIctlons IS temporary and that the expected duratIOn IS "unknown at thIs
tlme" The Form asks whether further absences from work are antlcIpated at tms tlme and Dr
P responded "yes" In the space proVIded for Dr P to "speCIfy" regardmg further absences
from work, the words "further mstlgatlon" were entered. Dr P stated the date of hIS next
assessment IS "one month"
In a letter dated August 31 1999 Supt. Chenard wrote the gnevor and, among other
statements, mdIcated that the Request for Employee Health Informatlon Form proVIded dated
May 31 1999 by her phYSICIan "does not proVIde clanty and IS somewhat contradIctory to
preVIously receIved mformatlon" and "does not satlsfy the reqUIrements of the Mimstry" and
stated that the gnevor was reqUIred, "m accordance WIth ArtIcle 44 9 of the Collectlve
Agreement" to "be exammed by a phYSICIan at the expense of the Mimstry m order to obtam a
prognOSIS of your present and future status as a Correctlonal Officer and the speCIfics of any
accommodatlon reqUIred" He offered the names of three phYSICIans who had agreed to
10
examme her and asked her to choose one, and enclosed a Medical Release Form for her to SIgn
and return, along wIth the name of the physIcIan she had chosen, by September 17 1999 The
letter mdicated that once he had receIved the results of the exammatlon, he would hold a
meetlng WIth her to develop a return-to-work plan. One of the three physIcIans offered was m
Scarborough, another m Toronto, and the other was m North Bay The gnevor had been
exammed for a Mandatory Medical m 1997 by Dr McMullen, who IS located m Sudbury
Ontano, on mutual consent of the partles. The letter was silent wIth respect to how travel
arrangements would be handled. No mformatlon was provIded by statement, submIsSIOn or
affidaVIt regardmg the proposed physIcIans.
By letter dated September 23 1999 the gnevor responded to Supt. Chenard's letter
She expressed her VIew of the treatment by the employer of confidentlal medical mformatlon It
had receIved and of her treatment as an employee She alleged "the mIsuse and abuse of thIs
medical mformatlon has contributed greatly to detenorate my emotlonal and phYSICal well-
bemg." She also agreed to be exammed by a physIcIan m accordance WIth Art. 44 9 She
stlpulated that she would dehver to Mr Chenard the physIcIan's "findmgs of the prognOSIS of
my present and future status also any speCIfics of my accommodatlons reqUIred." She offered
the names of three physIcIans, mcluding Dr P who had completed the May 31 1999 Request
for Employee Health Informatlon Form wmch Mr Chenard had mdicated did not satlsfy the
reqUIrements of the Mimstry and the names of two others, mcluding Dr McMullen At thIs
pomt, the gnevor was still m receIpt of short term SIckness plan benefits under Art. 44
For purposes of thIs proceedmg for mtenm rehef only the gnevor's entltlement to short-
term disabihty benefits ended around November 7 1999 On the mformatlon and
documentatIOn provIded, I make no determmatlon as to the exact date upon wmch her
entltlement to those benefits ended.
The employer responded to the gnevor's agreement to attend a Mandatory MedIcal
exammatlon on December 7 1999 when Deputy Supt. RIchard SmIth wrote a letter to the
gnevor and mdIcated that the employer was agreeable to the gnevor bemg exammed by Dr
McMullen. He adVIsed m the letter that an appomtment had been arranged for her to see Dr
McMullen on December 21 1999 at 2 30 p.m. and adVIsed that a copy of the FunctIOnal
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AbIhtles Form has been forwarded to Dr McMullen along WIth pnnted mformatlon pertammg to
the dutles and responsibIhtIes of a Correctlonal Officer at the Sudbury Jail and enclosed Release
forms for her to sIgn and give to Dr McMullen Mr SmIth sent a letter to Dr McMullen on
December 7 1999 requestlng a Functlonal Abihtles Assessment "to clanfy the mdivIdual's
medical sItuatlon WIth respect to accommodatIOn needs and the length or permanency of the
modified work reqUIred" It mdicated "All the described dutIes can be modIfied m order to
accommodate the worker provIded that phYSICal restnctlons are mdIcated and specIfic" It
requested hIm to forward a report of the medical exammatIOn to Seruor MedIcal Consultant Dr
Paul Humphnes and the gnevor's personal physIcIan.
Supt. Chenard adVIsed that the employer had not responded to the gnevor's letter untll
December 7 1999 because It had been occupIed WIth other matters. He Said that the employer
wanted the gnevor to return to work and wanted to know what accommodatlons were
necessary to effect that.
The gnevor did not attend the December 21 1999 appomtment WIth Dr McMullen. I
gather that she dId not attend It m the mIstaken behef that the Issue of whether she was reqUIred
to do so was determmed m the course of a proceedmg before me on December 8 1999 As
well, OPSEU Staff RepresentatIve Peter Slee wrote to Deputy Supenntendent SmIth on
December 13 1999 WIth a copy to Ms. Latlmer
Apparently the nature of Ms. Latlmer's medical mformatlon to the employer IS
currently under reVIew by the Gnevance Settlement Board. Once the Board
has determmed what mformatlon should be proVIded, Ms. Latlmer WIll proceed
WIth reqUIred medical.
I gather that Ms. Latlmer was guIded m part by Mr Slee's letter and beheved,
erroneously that the Board was asked to determme "what mformatlon should be proVIded" I
gather as well, that Ms. LatImer dId not attend the December 21 1999 appomtment m the
behef, as argued by her Counsel on December 23 and m January 2000 that as she was no
longer m receIpt of short term SIckness benefits when the employer selected Dr McMullen and
adVIsed her and because she and perhaps her phYSICIan are of the VIew that she IS unable to
work for the Mirustry many mstltutlon or capaCIty that the request for the Mandatory Medical
was "out of tIme" and therefore "not appropnate" under Art. 449 and that she was not
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reqUIred to attend a Mandatory MedIcal exammatlon m all the CIrcumstances. I understand
from submIsSIons that she also objected to the employer havmg contacted Dr McMullen and
havmg made the appomtment. The baSIS of thIS ObjectIOn was not made clear
The relatIOns between the partIes were further stramed, I gather when on December
13 1999 the employer demed Ms. LatImer's gnevance, OPSEU 99-617-200
whIch IS not one of the gnevances before me, followmg a second stage meetlng whIch took
place between the employer and OPSEU Representatlve Peter Slee (the gnevor did not attend
that meetlng) I note thIS as background mformatlon and make no finding WIth respect to the
determmatIOn at the second stage of that gnevance.
On January 5 2000 Supt. Chenard stated that he agreed to "suspend" the request for
a Mandatory Medical exammatlon "pendmg the outcome of the gnevor's LTIP apphcatIOn."
He also stated, m reference to the employer havmg proVIded some mtenm finanCIal aSSIstance to
the gnevor while she was aWaItlng the determmatlon of her LTIP claim m 1997 that the
employer had proVIded finanCIal aSSIstance "the last tIme" "because" the gnevor had agreed to
attend a Mandatory Medical exammatlon. On the mformatlon proVIded, I make no finding as to
whether thIS was one of the reason(s) behmd the employer havmg agreed to proVIde finanCIal
aSSIstance to the gnevor m 1997 while aWaItlng the determmatlon of her LTIP claim m that year
On January 5 2000 neIther party responded to the suggestlon that the possibihty could
be explored that the gnevor mIght at thIs tlme be medically able to work for the Mimstry at
another mstltutlon such as Cecil Facer Youth Centre m Sudbury If she was unable for medical
reasons to work at the Sudbury Jail
The Umon submItted that an mtenm order should be Issued, directmg the employer to
place the gnevor on paid leave of absence from November 7 1999 to March 13 2000
subject to the proVISO that the gnevor IS to repay the employer any benefits she receIves.
The employer submItted that no order reqUITIng the employer to proVIde the gnevor WIth
any mcome should be made m all the CIrcumstances, and made submISSIons WIth respect to
13
when the gnevor should repay the employer m the event that such an order IS made The umon
submItted that the tlme for repayment should be determmed at the outcome of the gnevances.
The employer argued that the Board dId not have junsdictlon to make the mtenm order
requested, that there was no gnevance on the record before the Board upon whIch to base such
an mtenm order that the request for mtenm rehefhad been put forward "m Isolatlon" and was
based on the employer's processmg of the L TIP claim and when the request for the Mandatory
MedIcal exammatIOn had been made It was submItted that the employer has not done anythmg
m tills case deservmg an order of thIS nature, and requmng It to act as a bank for the gnevor It
submItted that the sItuatlon IS the fault of the gnevor and there has to be someone at fault here,
and It IS not the employer and the employer IS bemg penalIzed. The Board should conSIder the
cost to the employer The employer IS bemg asked to pay the employee willIe she IS offwork
and the gnevor IS askmg to be paid for domg nothmg. The Umon and the gnevor have failed to
push the claim along. None of the gnevances before tills Board have any relevance to the
request for mtenm rehefbefore It. Short term credIts must be earned. They were earned and
used up and there IS no jUnSdIctlon to award an employee short term SIck credits other than
those agreed to by the partIes m the collectlve agreement. The employer can understand the
umon askmg for "forward pay" but not retroactlve pay EVIdence of hardshIp should be
produced for the mtenm rehef requested.
The Umon submItted that the Board has jUnsdIctlon to mamtam the status quo m an
mtenm rulmg, and thereby to make It possible to make an effectlve final order and prevent
llTeparable harm m the relatlonsillp between the gnevor and the employer
Imtlal SubmISSIOns January 3 L 2000.
Bv The Emplover
The Employer's representatlve Imtlally submItted that m VIew of the gnevor's LTIP
apphcatIOn havmg been demed, there was no need for the Umon to proceed before the Board m
ItS apphcatlon for mtenm rehef, that the Umon should SImply proceed WIth the gnevor's LTIP
appeal, that a deCISIon will be made by L TIP shortly and that It IS a waste of the Board's and
the employer's tIme to go through the process of an order to pay the gnevor pending the L TIP
14
deCISIon, notlfy CORP A Y to dIrect a cheque to the gnevor only to have the gnevor pay back
the money to the employer m a week or so He further submItted that If the gnevor has
provIded all the appropnate medical mformatlon already It was unlikely that Manuhfe would
overturn It'S own deCISIOn on the appeal He objected to proceeding wIth the Umon's motIOn
for mtenm rehef for essentlally the followmg reasons.
a) because the gnevor's LTIP claIm has been refused,
b) because the Umon has expanded ItS request from a cease and deSIst order to
a request for an extenSIOn of SIck leave benefits,
c) there was no need for proceedmg WIth It;
d) Manuhfe would make ItS deCISIon soon,
e) It was a waste of the Board's tlme to engage m tms process.
Bv the Umon.
Counsel for the Umon responded that he understood that the gnevor had receIved a
letter from Manuhfe wmch IS more detailed than the letter the employer receIved. The gnevor
had been mstructed to contact her OPSEU representatIves and deal WIth MembershIp Benefits
sta.ff, and the appeal may be m motlon at tms pomt. The gnevor's health CIrcumstances are
SImilar to the preVIOUS occaSIOn m wmch she apphed for L TIP wherem the L TIP was granted
on the day she returned to work and there IS httle difference between thIs and the prevIOUS
apphcatlon for L TIP ConSIderable mformatlon has been supphed to Manuhfe and the sItuatlon
IS complex. There are arguable Issues and questlons of mterpretatlon. The gnevor will reqUIre
further treatment from Dr M. and then from a thIrd unnamed doctor Dr M. cannot complete
ms final report (Dr M. had proVIded one report wmch was not final) until a final VISIt from Ms.
LatImer and the other two phYSICIans' reports are dependent upon Dr M.' s final report.
Manuhfe's delayed but ultlmate reJectlon of the gnevor's apphcatlon was most likely based on
medical mformatlon wmch was fragmentary but msurers are wilhng to look at more complete
medical mformatlon, and that will be probably available m the near future. Manuhfe IS m the
busmess of provIding of long-term mcome benefits and m makmg money and theIr opImon may
be questlonable, wmch IS why the appeal system IS m place (see Art. 229.2 and authonty of the
ClaIms ReVIew SubcommItee of the Jomt Insurance Benefits ReVIew CommIttee described m
15
Appendix 4 mcorporated by reference m Art. 22.9.2) As days go by the cnSIS for the gnevor
mcreases and her doctors' opImons are she remams unable to work, and as a result, the major
Issue for the gnevor has not disappeared. The cnTIcal factor of her return to work was an
assurance, backed by legal force, that the conduct of the employer on May 9 1999 wmch
preceded her absence from work for medIcal reasons would not recur There IS no Order and
that's a problem for the gnevor The gUIdehnes Issued by the Board are not suffiCIent. The
Umon's pOSItIOn was that ItS request for mtenm rehef should proceed.
I ruled that the mOTIon would proceed for reasons wmch I gave orally concluding that
to adjourn the mOTIon would deny the gnevor a full heanng of the Issues and conSTItute a demal
of natural JUSTIce.
Further SubmISSIOns January 3 L 2000.
Bv the Umon.
Counsel for the Umon adVIsed that the Umon was requesTIng that the gnevor be gIven
"extended short-term benefits" The Umon had proVIded an affidaVIt, whIch, It was submItted,
asserts that the gnevor IS suffenng conTInumg and mcreasmg hardsmp and IS unable to work.
The rehef sought, It acknowledged, IS not m the collectIve agreement. It urged the Board to
take the extraordmary step of direCTIng the employer to conTInue short term benefits. The
reqUIrements set out m Steyt,art 1000/94 are satIsfied. The Umon seeks thIs reheffor labour
relaTIons reasons and to prevent unusual hardsmp to someone who IS unable to work and IS
expenencmg an ongomg, conTInumg and chromc problem from the traumaTIC expenence of May
9 1999
The Gnevance Settlement Board has the power to accept oral or wntten eVIdence,
whether admIssible m a court oflaw or not, under s. 47(12) of the Ontario Labour Relations
Act AffidaVIt eVIdence IS often rehed upon m vanous proceedings wmch do not allow for full
viva voce eVIdence The Board should also conSIder the unsworn mformaTIon wmch had been
submItted. A conSIderable amount of the damages claImed by the gnevor could be set off
16
agamst the money the employer alleges It would be nskmg m gIvmg the gnevor financIal
assIstance at thIs TIme The Dmon IS confident of ItS success on appeal of the L TIP claIm, and
that would be another source from whIch to repay the employer
The Dmon adVIsed that It was requeSTIng the extenSIOn of the short term benefits at least
until the L TIP appeal and the Art. 22.9.2 procedures are exhausted. The Board was asked to
remam seIsed of any order It makes m respect of L TIP and any other avenue of redress under
the colleCTIve agreement or elsewhere, as there may be other conSIderaTIons at a later date
Bv the Emplover:
The onus IS on the gnevor to convmce the Board as to why mtenm rehef should be
granted. Concrete eVIdence, not mystenous sentences, should support thIS claIm. The gnevor
IS responsible to make the L TIP claIm and demonstrate that she has mITIgated her damages.
She must also make sure all medIcal documentaTIon IS provIded.
The Board does not have the JunsdICTIOn to extend SIck credits. Art. 44 4 states
An employee who has used leave of absence WIth pay for one hundred and
thIrty (130) workmg days m a calendar year under ArtIcle 44 1 must complete
twenty (20) consecutIve workmg days before he or she IS enTItled to further
leave under ArtIcle 44 1 m the next calendar year
The colleCTIve agreement IS clear The employee must earn these SIck leave credits by workmg
20 days. That IS what the partles negoTIated m the collectIve agreement. The Board cannot
expand upon theIr agreement.
An apphcaTIon for mtenm rehef IS not the appropnate tIme to examme the ments. The
Board must not base any deCISIon for mtenm rehefupon any mCIdent about wmch It has heard
eVIdence pertaImng to the gnevances before It. The deCISIon should be based on a balance of
mconvemence test, by companng harm to both partIes. It would exceed the board's JunsdICTIOn
to rule on the mtenm request based on allegatIOns pertaImng to the May 9 1999 mCIdent. In
Stelt art supra, the Board stated
The apphcaTIon for mtenm rehef IS not the TIme to examme the ments of the
case
In Steltart the tests of whether mtenm rehef should be granted were stated to be
17
(a) the eXIstence of an arguable case m the mam apphcatlon and
(b) the balance of potentlal harm or mconvemence to the partIes.
The employer concedes that there IS an arguable case m the mam apphcatlon.
With regard to the balance of convemence, the gnevor must show specIfic eVIdence of
hardshIp Vague assertlons are not suffiCIent. In Steyt,art the Board stated
8 There should be a "showmg of some specIfic mconvemence bemg
suffered to the gnevor apart from what may generally be presumed "
There IS no eVIdence of specIfic mconvemence before the Board. The same pnncIples apply to
a gnevor out of work as apply to a gnevor seekmg remstatement. The gnevor has faIled to
provIde you WIth eVIdence of any of the "addItlonal consequences" found m Steyt, art supra, at
p 7 - 8 number (1) through (4) In Steyt,art the Board consIdered "extenSIve eVIdence" from
the gnevor regarding her unsuccessful attempts to find alternatlve employment. Although thIs
Board need not seek eVIdence of attempts to find alternatIve employment, It should reqUIre
eVIdence of mItlgatlon, l.e. that the gnevor took steps to mItlgate her damages. ThIs Board
should be proVIded WIth eVIdence of the nature proVIded m Steyt,art wherem the details of the
gnevor's husband's difficultles ansmg from the gnevor's lack of mcome, and threat of legal
proceedmgs If mortgage payments are not made Immediately WIth a likelihood of power of sale
unless she has an mcome from work. The gnevor has not presented eVIdence of specIfic
hardshIp beyond what mIght be generally presumed. It IS not known whether she has a
mortgage, or savmgs upon whIch she could draw
The gnevor's assertIOn that she has been WIthout mcome or benefits IS contradIcted by
the affidaVIt of Shem LOIselle for the employer whIch states that the gnevor receIved a
paycheque from the employer on November 10 and November 25 1999 ThIS goes to the
level of mconvemence and harm whIch the gnevor suffered. The employer extended her pay by
paymg her 100% of her pay umntentlonally rather than the level of pay to whIch she was
entltled under the collectlve agreement at the tlme
The gnevor has not stated m her affidaVIt when she apphed for c.P.P benefits. The
letter dated September 27 1999 tells her to apply to c.P.P for dIsabIhty benefits If she has not
yet done so, and It proVIded an address. The November 10 1999 letter says that she can
18
apply for Employment Insurance benefits If necessary It appears that the gnevor has not
apphed for these benefits m a TImely manner There IS no documentaTIon shOWIng when she
apphed.
The gnevor has failed to mITIgate her losses by applymg to L TIP m a TImely manner and
has failed to show the Board that she has done so m a TImely manner Counsel for the gnevor
staTIng that Dr M. has not provIded ills final report and that there IS further mformaTIon commg
IS not suffiCIent. The gnevor must see her doctor and get the mformaTIon over to Manuhfe. The
gnevor urges that the Board grant her mtenm rehefwhile saymg she has not been able to
proVIde Manuhfe WIth the mformaTIon that she should have proVIded. The gnevor must show
that she has pursued these matters m a TImely way There IS no eVIdence, so the employer does
not know whether she went to her doctors.
With respect to harm to the employer the employer IS bemg asked to give the gnevor
money m exchange for nothmg. In Steyt,art supra, and m Leeder 2498/93 etc the gnevor was
seekmg mtenm remstatement and the employer m those cases would receIve work from the
employee for the money It paId the employee. The harm to the employer m tills case would be
greater than m the rem statement cases as It IS receIvmg no work m return for the money paId to
the employee.
The gnevor has faIled to proVIde appropnate eVIdence to support her request. The
balance of convemence favours the employer
Bv the Umon.
While the employer IS correct WIth respect to the normal CIrcumstances whIch must be
present m order for an employee to receIve payment while off SICk, thIs IS defimtely not a normal
SItuaTIOn.
ArbItrators have powers, m addiTIon to theIr authonty under the colleCTIve agreement,
under s 48 (12) (i) "to make mtenm orders concernIng procedural matters" and under s 48
(13) they are not able to remstate an employee. The Gnevance Settlement Board has a broad
JunsdicTIon regarding mtenm orders, willch has been recogmzed as such by revIewmg courts. In
Steyt,art supra, the authonty to grant mtenm rehefwas set out at page 2, and the two tests for
19
mtenm rehef attributed therem to Umted Food and CommercIal Workers' InternatIOnal Umon,
Local 175/633 and 810048 Ontano LImIted c.o.b. as Loeb Highland, [1993] OLRB Rep
March, 197 (McCormack) were set out (see above, employer submIsSIOns) The employer
has conceded that the first test (a), above has been met, and ItS arguments pertammg to the
second test:
(b) the balance of potentIal harm or mconvemence to the partles.
The Board should consIder all the cntena at pages 4 and subsequent m Steyt,art supra, m
determImng whether to grant the rehef requested.
With respect to "2 The granTIng of mtenm rehef IS not hmIted to rare and excepTIonal
CIrcumstances." exceptIOnal CIrcumstances are present. With respect to "3 The granTIng of
mtenm rehef m a labour relaTIons context reqUIres a consIderaTIon of 'a very specIfic socIal and
economIC landscape' " the conference call proVIded the Board the landscape With respect to
"4 There can be no 'bOIlerplate' or 'one-sIze-fits-all' approach to granTIng mtenm rehef." the
Board must look at the gnevor's speCIfic CIrcumstances. She has set that out m her affidaVIt and
m her tesTImony to date, that she IS SICk. It IS ObVIOUS. The Board must have reference to "5
A board of arbItraTIOns must 'conSIder both what harm may occur If an mtenm order IS not
granted, and what harm mav occur If It IS' Reference to Loeb at p 9 of Leeder where
emphaSIS was added. "
With respect to Item 6 m Steyt,art supra, the threshold the gnevor must meet IS lower than the
"llTeparable harm" test.
With respect to Item 7 m Steyt,art that case dealt WIth a request for rem statement
follOWIng a dIscIphnary dIsmIssal. The Board stated that the employer's concerns WIth regard to
the prospeCTIve effect of an mtenm order should be conSIdered, but are not dISPOSItIve of
whether the rehefwill be granted. A properly worded mtenm order will address the Issues of
concern.
With respect to Item 8 m Steyt,art "There should be a 'shOWIng of some speCIfic
mconvemence bemg suffered to the gnevor apart from what may generally be presumed. ' "
detailed submISSIons regarding thIs have been given.
20
Item 9 states "Delay m makmg the apphcaTIon may be a factor m denymg It." Item 10
states "Where Issues of safety are raIsed on an apphcatIOn for mtenm rehef, 'there should be
eVIdence before the Board wmch would lead the Board to beheve that there IS a nsk of unsafe
conduct occurnng should the employee be rem stated for the mtenm penod pending the
dispOSITIon of the maIn apphcaTIon.' See Umted Food and CommercIal Workers' InternatIOnal
Umon v. ShIrl on PlaSTICS Inc. OLRB (ShouldIce), dated August 8 1994 referred to a pp 18-
19 of Leeder where emphaSIS was added."
The Board must conSIder a number of different Issues. The hurdle IS not nearly as mgh
as the employer suggests. The Board must look at the speCIal labour relaTIons Issue gIvmg nse
to the request.
With respect to the suggestIOn that the Board IS bemg asked to look at the ments of the
maIn gnevances, an mtenm order IS bemg sought. It IS a fact that the gnevor IS off work for
medical reasons and does not have an mcome. It IS not difficult to find who IS at fault, but that
would be gomg mto the ments. We walk a fine hne The Board should not enter mto a
complete finding of the ments of the gnevances. However It can find that the May 9 1999
mCIdent preCIpItated the gnevor's absence from work. The employer wIll not state that the May
9 1999 mCIdent did not preCIpItate the gnevor's absence, but will only state that she was absent
from work after May 9 1999 The Board does not have to make a findmg as to the ments m
order to determme thIs mOTIon. NothIng m the employer's affidaVIt and submISSIons challenges
the causalIty of the gnevor's COndITIOn. Where there IS a lack of awareness, a certam smftmg
onus occurs. Although the employer has submItted that the gnevor has failed to mITIgate, the
employer must prove that the gnevor has not mITIgated, that there IS somethIng flawed m her
representatIOns
The eVIdence WIth respect to the May 9 1999 mCIdent and the gnevor's affidaVIt were
presented for the purpose of determImng mOTIons, not the gnevances. In consequence, the
Umon IS not seekmg a ruhng WIth regard to the ments, but rather askmg the Board to exerCIse
ItS authonty under s. 48 (12) (i) of the Labour Relations Act
Regarding the balance of mconvemence test and CIrcumstances 8 to 10 wmch boards
may conSIder and partIcularly Item 8 m Steyt,art "There should be a 'shOWIng of some speCIfic
21
mconvemence bemg suffered to the gnevor apart from what may generally be presumed. ' "It
IS generally presumed that It'S an mconvemence to be WIthout mcome In Stelt art m the
context of a discIphnary dismIssal, the Board had to find somethmg specIal. Our case IS
distlnguIshable by the fact that the gnevor IS medically disabled from domg her Job That IS as
specIal as you can get. It becomes even more specIal, extra specIal, when the precIpItatmg
sItuatlon was work-related. The gnevor was held back from leavmg the mstltutlon m the face of
the opImon of the nurse, the most semor medical person on staff. The CIrcumstances are not
parallel to a "run-of-the mill" finng.
The gnevor and the Umon reasonably assumed that she stopped receIvmg her pay
around November 7 1999 and learned of the employer's VIew that an overpayment had
occurred shortly before Ms. LOIselle's affidaVIt (dated January 28 2000) was presented. The
Umon has been unable to check mto It. The Umon alleges that the gnevor receIved her Record
from the employer some tlme m the week ending Janum)' 28 2000 The employer IS
contradictlng the gnevor's affidaVIt as to when she ceased receIvmg an mcome from the
employer WIth a belated statement, and IS saymg that the gnevor's affidaVIt IS m some way
mIsleading. The errors regarding payment referred to m Ms. LOIselle's affidavIt are the
employer's errors
While the employer says that the gnevor hasn't apphed for other benefits m a tlmely
manner It too must come to the Board WIth "clean hands" While the employer submIts that the
gnevor's affidavIt IS msufficIently speCIfic, and she had failed to mItlgate and did not get her
medical reports, the Umon submIts that the gnevor has been WIthout mcome smce November
1999 IS too ill to work, has apphed for c.P.P benefits and Employment Insurance and LTIP
The gnevor's affidaVIt does not say she has apphed for welfare yet. Unless there IS another way
she can receIve some mcome, that IS the next step
With regard to Dr M.' s reports, the gnevor has two different purposes m attending on
her doctor One purpose IS to proVIde medical mformatlon for her L TIP apphcatlon, but more
Importantly the second purpose IS to obtam a reasonable course of treatment for her Illness.
The gnevor wants to get well. The LTIP Insurer's request for mformatlon overlaps WIth the
course of treatment that she IS receIvmg. It would be unfortunate to try to rush the treatment
22
procedure m order to create documents for the L TIP msurer The delay IS not purpOSIve It's a
matter of several doctors revIewmg her medical sItuatlon. If that delays all the medical
mformatlon bemg provIded to Manuhfe, It IS because precedence IS bemg gIven to treatment
over the proVISIon of medical mformatlon.
The employer's submIsSIOn regarding not receIvmg the benefit of work from the gnevor
If ordered to provIde her an mcome, as opposed to a sItuatlon where someone who was
termmated for bemg so "bad" IS forceably rem stated, IS prejudicIal to employees who are too
SIck to work. Further the employer submIts that the gnevor has to be poor to be entltled to
mtenm rehef Tms IS an unfortunate argument and contradictory The gnevor cannot overcome
these submISSIOns.
Umon counsel adVIsed that he was WIthout mstructlons as to whether the gnevor would
be medically able to work m another mstltutlon for the employer He submItted that certam
mdIvIduals' actlons m the Sudbury Jail "preCIpItate" her illness and that she may be able to work
m another mstItutlon, that she may take comfort from workmg elsewhere, where she would not
need a cease and deSIst order and tms may be worth explonng.
Counsel for the Umon requested that the Board conSIder the partIes' unsworn
statements, wmch he charactenzed as a tangled web of assertIOns, counter-assertlons and
demals wmch would have to be sorted through.
Bv the Emplover:
The Umon has changed ItS pOSItIOn WIth respect to the CIrcumstances under whIch the
gnevor could return to work. Her mSIstence upon a cease and deSIst order as opposed to
reasonable assurance that the May 9 1999 events would not reoccur IS a contradIctIOn whIch
goes to the credibihty of the gnevor's claim that she IS too SIck to work. The onus IS on the
Umon to demonstrate that the gnevor IS too SIck to return to work at the Sudbury Jail, and there
has been no medIcal mformatlon to that effect smce November 7 1999 While the Umon
alleges that the employer's posItlon discnmmates agamst employees who are too SIck to work,
there IS no eVIdence that the gnevor IS too SIck to work. An L TIP ruhng has been made The
gnevor was asked to attend a Mandatory MedIcal exammatIOn and she dId not do so The
23
onus regarding mItlgatlon IS on the Dmon, although the umon seeks to sillft It to the employer
That IS the usual procedure regarding mItlgatlon. The Dmon proVIded eVIdence of mItlgatlon m
Steltart supra. The detaIls are wIthm the gnevor's knowledge
There IS no cross-obhgatlon to proVIde the fullest possible mformatlon re potentlal harm
and balance of mconvemence NeIther of the affidaVIts before the Board proVIdes much of that.
Further It IS the employer's posItlon that It IS unlikely that the gnevor's sworn statement at
paragraph 8 of her affidaVIt that she had been WIthout mcome smce November 7 1999 was a
mIsapprehenSIOn.
The Dmon's posItlon IS that s. 48 (12) (i) of the Labour Relatlons Act gIves the Board
the power to extend SIck credits. To award benefits greater than proVIded for m the collectlve
agreement would exceed tills Board's junsdictlon. Such an award would not constltute a
procedural order
Although Stelt art states that entltlement to mtenm rehef IS not hmIted to rare and
exceptIOnal CIrcumstances, It IS not appropnate here. When the Board conSIders the economIC
and socIal landscape and conSIders that the employer IS bemg asked to pay the gnevor WIthout
receIvmg work m return, that IS a reason not to grant mtenm rehef
The employer mdicated It would only be wilhng to explore the Issue of whether It can
make a posItlon available to the gnevor at another mstltutlon on the conditlon that the gnevor
first give an mdicatlon that she IS mterested m workmg at another mstltutlon.
The employer mdicated that the Board should conSIder the unsworn mformatlon
proVIded m the teleconference call as eVIdence.
The ConsIderatlons.
The Ontano DIVISIonal Court has stated that the Gnevance Settlement Board has broad
junsdictlon, subject to certam proVISOS, to make mtenm orders. The endorsement on the
Apphcatlon Record of the case of Her Maj esty the Queen m RIght of Ontano as represented by
The Mimstry of Labour V Gnevance Settlement Board, et al (in reference to the deCISIOns of
Vice ChaIrs Roberts and McKechnIe m Nield, 1471/96) states
24
The central Issue m the gnevance IS whether Mr Nield has a conflIct of
mterest. NeIther of the Intenm Orders decIdes that Issue, or makes a
finding relevant to ItS determmaTIon. The mtenm Orders remove the
urgency of a deCISIon of the central Issue by permIttmg Mr Nield to
retam ms mvestment m ms body shop until determmaTIon of the ments of
the gnevance, provIded he avoIds mvolvement m the mspectIon of auto
body shops. In our Judgment, these Intenm Orders deal WIth
procedural matters WIthm the meamng of s. 48 (12) (i) of the Labour
RelatIOns Act, 1995
SectIOn 48 (13) of that Act proVIdes that an arbItrator shall not make an
mtenm order under s. 48 (12) (i) requmng an employer to rem state an
employee m employment. SubsectIon (13) mdicates that the legislature
gave a broad meanmg to the words "procedural matters" m s. 48 (12)
(i)
I therefore conclude that thIS Board has the JunsdictIOn to conSIder and determme the
request for mtenm rehefunder s. 48 (12) (i) of the Labour RelatIOns Act, proVIded that It does
not deCIde the central Issue(s) and does not make a finding relevant to ItS determmatIOn.
The relevant proVISIons of the colleCTIve agreement are
ARTICLE 42 - LONG TERM INCOME PROTECTION
422.2 The L T.I.P benefit to wmch an employee IS entItled shall be reduced
by the total of other dIsabihty benefits payable under any plan toward
wmch the Employer makes a contribUTIon.
42 2 3 The L T.I.P benefits commence after a quahficaTIon penod 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 month penod.
42 2 4 Total disabihty means the conTInuous mabihty as the result of illness,
mental disorder or mJury of the msured employee to perform the essenTIal
dUTIes of her normal occupaTIon dunng the qualIficaTIon penod, and dunng
the first twenty-four (24) months of the benefit penod, and thereafter dunng
the balance of the benefit penod, the mabihty of the employee to perform the
essenTIal dUTIes of any gamful occupaTIon for wmch she IS reasonably
fitted by educaTIon, traImng or expenence
42 4 A record of employment, If reqUIred m order to claIm Employment
Insurance SIckness and dIsabIhty benefits, WIll be granted to an employee
and tms document shall not be conSIdered as termmaTIon of employment.
25
ARTICLE 43 - JOINT INSURANCE BENEFITS REVIEW COMMITTEE
43 1 The partles agree to conTInue the Jomt Insurance Benefits ReVIew
CommIttee The terms of reference are set out m Appendix 4 (Jomt
Insurance Benefits ReVIew CommIttee) attached.
ARTICLE 44 - SHORT TERM SICKNESS PLAN
44 9 Where, for reasons of health, an employee IS frequently absent or unable
to perform hIS or her dUTIes, the Employer may reqUIre mm or her to submIt
to a medical exammaTIon at the expense of the Employer
Appendix 4 of the Collectlve Agreement mdicates, among other thmgs, that one of the dUTIes of
the Jomt Insurance Benefits ReVIew CommIttee IS.
ReVIew of contenTIOUS claims and recommendaTIons thereon, when such claim
problems have not been resolved through the eXIstmg admImstraTIVe procedures.
The partles have negoTIated extenSIve proVISIons m Art. 44 WIth respect to enTItlement to
leave of absence WIth pay for an employee who IS unable to attend to ms or her mJunes due to
SIckness or mJury It IS not necessary to set them out m thIs ruhng.
From the above proVISIons I conclude that the partles, m negOTIaTIng theIr colleCTIve
agreement, have conSIdered the possibihty of delays ansmg m the course of estabhsmng any
partlcular employee's enTItlement to L TI.P benefits. They have addressed the availabIhty (and
ulTImate deductibIhty from L TI.P) of "other dIsabihty benefits payable under any plan," etc.
m Art. 42.2.2, mcluding, I conclude, Canada PenSIOn Plan disabihty benefits. The defimTIon of
total disabihty IS set out m Art. 42.2.4 Art. 42.4 speCIfically contemplates the employer
proVIding a Record of Employment for a claim by an L.TI.P apphcant for Employment
Insurance SIckness and disabihty benefits WIthOUt termmatIOn of employment. In thIs context,
Art. 42.2.3 must be read as mdicatmg that entItlement to benefits anses after a qualIficaTIon
penod of SIX months and that L TI.P benefits do not necessanly begm to be paid after SIX
months of short term SIckness plan benefits. There IS no reqUIrement m the collectlve agreement
that the employer pay an employee L.TI.P benefits while the claim IS bemg processed. The
proVISIons m the collectlve agreement suggest that m the usual case, the employee who
26
expenences a lapse m benefits coverage must look to Employment Insurance and Canada
PenSIOn Plan DIsabihty benefits.
Tills IS not a usual case. Tills IS a very speCIal case and a very speCIal request m very
unusual CIrcumstances.
The Board should be mmdful of the DIvIsIonal Court's remarks set out above, and as
well, apply the two-fold test m Steyt,art supra, stated above, and have regard to the
consIderaTIons for the determmaTIon of the balance of potenTIal harm or mconvemence set out
therem at pp 4-6
1 The apphcaTIon for mtenm rehef IS not the TIme to examme the ments of the
case
2 The granTIng of mtenm rehef IS not hmIted to rare and excepTIonal
CIrcumstances.
3 The granTIng of mtenm rehef m a labour relaTIons context reqUIres a
consIderatIOn of "a very specIfic socIal and economIC landscape."
4 There can be no "bOIlerplate" or "one-sIze-fits-all" approach to granTIng
mtenm rehef
5 A board of arbItratIOns must "conSIder both what harm mav occur If an
mtenm order IS not granted, and what harm may occur If It IS "
6 The pnncIples utihzed by some courts govemmg the granTIng of mterlocutory
mjunctIons, bemg the test of "llTeparable harm" has been rejected m favour
of "a balancmg of harm done to the partIes."
7 An employer's concerns "WIth respect to prospectIve discIphne,
compensaTIon Issues and morale, whIch will most probably anse every
TIme that mtenm rehef IS requested will be part of the board's
conSIderaTIon but should not be reasons for rejeCTIng a request for mtenm
rehef" (Leeder at p 13) An employer's concern that other employees (and
others, such as mmates m thIS case) will mIsmterpret the return to work of a
gnevor as part of the granTIng on an apphcaTIon for mtenm rehef and assume
that an employee, m thIs case the Gnevor can "get away" WIth culpable
behavIOur and be returned to her employment, can be dealt WIth by such
mformaTIon dissemmaTIng measures as the pOSTIng of appropnate nOTIces that
set out the authonty for the order and explam ItS nature There should be no
automaTIC assumpTIon that such nOTIficaTIon will be mcapable of conveymg the
message that no deCISIon has been made on the ments, and that the return of
a gnevor to work IS an mtenm measure that has no beanng on the outcome
of the case
8 There should be a "showmg of some speCIfic mconvemence bemg suffered to
the gnevor apart from what may generally be presumed
"
9 Delay m makmg the apphcaTIon may be a factor m denymg It.
27
10 Where Issues of safety are raIsed on an apphcatlon for mtenm rehef, "There
should be eVIdence before the Board wmch would lead the Board to beheve
that there IS a nsk of unsafe conduct occuffing should the employee be
rem stated for the mtenm penod pending the dIsposItlon of the maIn apphcatlon."
However the Board must also bear m mmd that the above statements are matters to be
conSIdered, none of whIch, taken mdivIdually IS determmatlve of the balance of potentlal harm
or mconvemence. The determmatlon of the balance of potentlal harm or mconvemence IS a
discretIOnary exerCIse. Each case will be determmed on ItS own facts.
Effect of rem statement (7) and Issues of safety (10) were not raIsed and will not be
addressed.
It IS not m dispute that the gnevor had used up her accumulated credIts and short term
SIckness plan entltlements some tIme m November 1999
It IS regrettable that the gnevor's L TI.P claIm was not commenced earher than
September 27 1999 partIcularly m VIew of the gnevor's and employer's expenence m relatlon
to her L.TI.P claIm m 1997 The employer commenced ItS apphcatlon m the 5th month of the
gnevor's absence from work under Art. 44 1 There IS no mdicatIOn that the employer apphed
any procedure or tlmmg of the commencement of the gnevor's L T .I.P claIm other than that
used for all ItS employees "m the ordmary case" Its Judgment, m vIewmg the gnevor's
CIrcumstances as the ordmary case, can, m mndsIght, be seen as less than comprehendmg of the
gnevor's CIrcumstances, partIcularly m VIew of the employer's and gnevor's expenence WIth her
L TIP claIm m 1997
While the selectlon of the end of September 1999 for the commencement of the
gnevor's apphcatIOn for L TI.P may have contributed to the delay m processmg her
apphcatIOn, and while the gnevor may not have receIved the September 27 1999 and
November 10 1999 letters produced by the employer It cannot be concluded on the eVIdence
before me that there was deliberate mtentIOn on the part of the employer to hmder her L TI.P
apphcatlon or her apphcatlons for other benefits.
The gnevor IS represented by OPSEU representatlves who were able to adVIse her of
her entltlements and aSSIst her m pursumg her entltlements under the collectlve agreement and to
Employment Insurance. I accept that the gnevor apphed for Canada PenSIOn Plan DIsabIhty
28
benefits at some pomt m the fall of 1997 and that she was asked to supply further mformaTIon m
January 2000 and that no determmatIOn of her entItlement to those benefits had been made by
January 17 2000 The gnevor unfortunately enough, for reasons wmch are not clear did not
apply for Employment Insurance benefits, although these benefits are specIfically named m the
ColleCTIve Agreement m Art. 42, until some TIme between January 5 and January 17 2000
There IS no eVIdence that thIs late apphcatIOn was deliberate on her part or due to a sense of
enTItlement on her part to finanCIal aSSIstance from the employer
While delay IS a conSIderaTIon, m all the CIrcumstances, It IS not determmaTIve m thIs case
of whether mtenm rehef will be granted.
The Umon contends that the gnevor's medIcal condiTIon IS complex and that she
reqUIres further treatment, and, I gather further medIcal assessment, before final reports can be
proVIded to Manuhfe for reconsIderaTIon of her L TI.P claim. On the mformaTIon before me,
the mITIal outcome of the gnevor's L.TI.P apphcaTIon cannot be attributed to any actIOn or lack
thereof on the part of eIther the gnevor or the employer
The gnevor's pOSITIOn essentIally IS that but for the aCTIons of the employer on May 9
1999 she would not be unable to work, (i e she would be able to work) and that therefore the
employer should be ordered to conTInue her salary at some level, unTIl she estabhshes that she IS
enTItled to L TI.P or other benefits. The gnevor's pOSItIOn assumes that the Board can accept
as fact her statement that she has been unable to work at the Sudbury Jail, and m the absence of
any mdicaTIon from her to the contrary unable to work m any pOSITIOn for the Mimstry smce her
short term SIck benefits ceased m November 1999 Unfortunately the most recent medical
eVIdence before the Board IS the Request for Health InformaTIon Form dated May 31 1999
The gnevor IS expressmg a medical opImon to thIs Board regarding the conTInuaTIon of the
medical conditIOn she was determmed by Dr P to be suffenng from on May 31 1999 whIch
caused her to be unable to work at that TIme, m mamtaImng that she remains unable to return to
work at thIs TIme due to "illness"
There IS nothmg m the documents and InformaTIOn presented that would suggest that the
gnevor's pOSITIOn, stated m her affidaVIt, that she has remamed ill and been unable to work at
29
the Sudbury Jail smce May 9 1999 to date IS false or a "hoax" That VIew however IS ImphcIt
m some of the employer's submIssIons.
The employer receIved Dr P , s form m early June, 1999 It does not appear on the
mformatlon before me, that the employer presumably not satlsfied WIth Dr P , s mformatlon
when It was receIved, asked Dr P m June or July 1999 for further and more detailed
mformatlon from mm, or requested the gnevor to attend a Mandatory MedIcal exammatIOn at
that tlme. By the same token, It does not appear that gnevor when her entItlement to short term
SIckness benefits ceased and If her physIcIan determmed that she was still unable to return to
work, provIded the employer at that tlme or smce then WIth a further Request for Employee
Health Informatlon form from Dr P or any of her physIcIans documentlng that she was unable
to return to work. The absence oftlmely commumcatlon on the part of both partIes IS apparent.
Tms Board, m the absence of any eVIdence to the contrary of Dr P 's statement m the
May 31 1999 Health InformatIOn Form, accepts that as of May 31 1999 the gnevor was
suffenng from an unnamed medical conditlon wmch prevented her from returnmg to work. The
gnevor has been absent from work and says that she has been unable to perform her dutles for
reasons of health smce May 9 1999 a penod of 10 months. While the employer did not move
qUIckly under Art. 44 9 m the context of thIS proceedmg, ItS request for a Mandatory Medical
exammatlon was not unreasonable
F or the purposes of the motIOn for mtenm rehef, the Board accepts that the gnevor has
been WIthout an mcome from the employer smce some tlme m November 1999 and that she IS
speCIfically mconvemenced by the lack of mcome, wmch mconvemence IS exacerbated by her
bemg unable to obtam other benefits or mcome from any other source Agam, there IS no
eVIdence that she IS not too SIck to work.
While sympathetIc to the gnevor's sItuatlon, the Board cannot rely on the gnevor's bare
statement as to her mabIhty to work at thIS tlme. To rely on her bare statement, m the course of
determmmg the balance of potentlal harm or mconvemence of an order dIrectlng the employer to
proVIde her WIth some form of mcome over some mtenm penod, would be to deCIde one of the
central Issues m the gnevances, the gnevor's personal credibIhty The Board reqUIres a medIcal
opImon.
30
Both partles are obhged m these mtenm proceedings to make as full and detailed
disclosure as possible of the Impact on each of proVIding the rehef requested and of not
provIdmg It. DIsclosure has been less than full and detaIled. Nevertheless, the partles reqUIre
dIrectIOn as to how to proceed.
The gnevor WIshes to protect her pnvacy regarding the IdenTIficaTIon of her medical
condiTIon. The employer mamtams that It respects her pnvacy m that regard. The employer
does not beheve that she IS unable to work. The employer's pOSITIOn m that regard IS purely
speculatIve However at the same TIme, the gnevor has not proVIded any medical
documentaTIon to support her pOSItIOn. The employer states that It wants the gnevor to return to
work and does not WIsh to proVIde her an mcome WIthout receIvmg the benefit of her servIces at
work.
The partIes have clearly reached an Impasse No compromIse, no surrender
The functlon of an mtenm ruhng m such an unusual case IS to overcome the obstacles
prevenTIng each party from attalillng theIr legtTImate obJ ectlves and enable them to conTInue the
heanng WIth a mIillmum of ill will. Its functlon IS not to penalIze eIther party but to enable them,
If possible, to mamtaIn a reasonable relaTIonsmp pendmg the final resolUTIon of the gnevances.
The Rulmg:
In VIew of all of the above conSIderaTIons, the follOWIng mtenm order shall Issue
1 The Employer IS ordered and dIrected to promptly proVIde the gnevor a blank
Request for Employee Health InformaTIon form.
2 The Employer IS ordered and directed to promptly IdenTIfy m wnTIng to Dillon
Counsel and the gnevor the pOSITIOnS at CecIl Facer Youth Centre whIch the
gnevor's educaTIon, traIillng and expenence would possibly quahfy her to fill, and to
promptly proVIde them WIth a wntten descnpTIon of the dUTIes of the pOSITIOnS,
31
sImilar to the reqUIrements of the postmgs at the SudbUIY Jail wmch the Employer
has provIded to Dr McMullen
3 Umon Counsel IS ordered and dIrected to send a wntten request to Dr P (wIth a
copy to the employer) advIsmg mm that the gnevor will promptly provIde mm WIth a
further Request for Employee Health InformaTIon form and requeSTIng mm to fill It
out, provIding ms detailed answers to the questIOns therem, WIth the exceptIOn of
IdenTIficaTIon of the gnevor's medical condiTIon and medICaTIOn, If any and askmg
mm to mdIcate on the form or m a wntten report or on an additIOnal page ms opmIOn
as to whether the gnevor IS currently able to take up dUTIes at eIther the Sudbury JaIl
or at Cecil Facer Youth Centre, and proVIding mm WIth a copy of the mformaTIon
regarding the dUTIes of the vanous posTIngs at each of these mSTItuTIons Umon
Counsel has receIved from the Employer and askmg hIm to describe what
accommodaTIon, If any she will reqUIre at a pOSITIOn m eIther mSTItuTIon.
4 The gnevor IS ordered and directed to take the Request for Employee Health
InformaTIon form to Dr P promptly upon nOTIficaTIon by her Counsel that the wntten
request has been sent to hIm.
5 The completed Request for Employee Health InformaTIon form, once completed, IS
to be forwarded promptly to the Employer and Umon Counsel by eIther Dr P , s
office or the gnevor
6 If Dr P mdicates on the form that the gnevor IS medically able to assume a pOSITIOn
at the Sudbury Jail, or mdIcates that the gnevor IS medIcally able to assume a
pOSItIOn at CecIl Facer Youth Centre but not the Sudbury Jail, and mdIcates the
accommodaTIon, If any that the gnevor reqUIres and If that accommodaTIon can be
proVIded WIthIn the reqUIrements of the Ontano Human RIghts Code, the Employer
IS ordered and dIrected to promptly place, aSSIgn or transfer the gnevor temporarily
mto such pOSITIOn at the mSTItuTIon Dr P IdenTIfies and maIntam her m that
employment WIth such accommodaTIons as may be modified by Dr P from TIme to
32
tJme, until the final resolunon of these proceedings, and the Employer IS ordered and
dIrected to pay the gnevor her salary and benefits as a Correcnons Officer m
accordance With her enntlement under the collecnve agreement, commencmg
fourteen days after ItS receIpt of the form from Dr P unnl the final resolutIOn of these
proceedings.
7 If Dr P mdIcates that the gnevor IS not medically able to return to work at eIther the
Sudbury Jailor Cecil Facer Youth Centre, the Employer IS ordered and dIrected to
pay the gnevor her regular salary from the date upon wmch the Employer receIves
the form from Dr P until such further nme as Dr P mdicates m wnnng that she IS
able to return to work at one of the msntunons and the gnevor commences dunes, or
until the final disposInon of these proceedings, or until a further mtenm order by the
Board, wmchever IS earlIest, subject to the proVISO that If the gnevor receIves c.P.P
disabilIty or L T.I.P benefits while m receIpt of payment from the employer under
tms paragraph, she will be reqUIred to reImburse the Employer promptly for the
amount of the benefits receIved.
8 IfWIthm one week (seven days) of receIpt of the form from Dr P by the Employer
the Employer requests the gnevor to attend a Mandatory MedIcal exammanon,
wmch request shall be conveyed m wnnng to the gnevor and Uillon Counsel WItmn
that nme, the gnevor IS ordered and dIrected to attend at a Mandatory MedIcal
exammanon to be conducted by Dr McMullen, at the expense of the Employer as
contemplated m Art. 44 9 and the Employer IS ordered and directed to provIde Dr
McMullen the same mformatIOn regarding posInons at Cecil Facer Youth Centre as
It provIded Uillon Counsel for Dr P
9 In furtherance of the Mandatory Medical, If requested wItmn the nme mdicated m
paragraph 8
a) The Employer IS ordered and dIrected to promptly provIde the gnevor
and Uillon Counsel a copy of all consents, releases and/or authonzanons
33
that the gnevor will be reqUIred to SIgn for the Mandatory Medical
exammanon, at least one week pnor to the exammanon takmg place, to
enable mm to consIder them and advIse the gnevor
b) The gnevor IS ordered and dIrected to sIgn all necessary (as determmed
by Umon Counsel) consents, releases and/or authonzatIOns to enable the
Mandatory MedIcal exammatIOn to take place
c) The Employer IS ordered and dIrected to arrange the appomtment for the
Mandatory MedIcal exammanon With Dr McMullen m consultatJon With
the gnevor
d) The Employer IS ordered and dIrected to make a further wntten request
for the Mandatory Medical exammatIOn m the same terms as m ItS letter
to Dr McMullen dated December 7 1999 wIth the addinon of the
words "and Cecil Facer Youth Centre" at the end of the tmrd paragraph.
10 The partIes are ordered and dIrected to cooperate WIth one another regardmg
the Implementanon of these terms.
11 I will remam seIsed With respect to the Implementanon of tills mtenm order
Tills rulmg IS bemg Issued dunng "March break" If Dr P IS not available, the
complenon of the Request for Employee Health Informanon form by another physIcIan of the
gnevor who IS treanng and/or assessmg her m relanon to the medical conditIOn referred to by
Dr P m the Employee Health InformatIOn form dated May 31 1999 and ItS prompt provIsIOn
to the employer will be consIdered complIance wIth the above orders and directIOns.
I am assummg that by the date of delIvery of tills decIsIOn to the parnes, the gnevor will
have receIved or will be about to receIve approXimately fifteen weeks of Employment Insurance
sIck benefits wmch she applIed for m January retroactIvely from November 8 or 25 1999 I
may be spoken to If tms IS not the case
34
The remammg eVIdence and argument are scheduled to be heard over eIght days of
heanng m March and April, 2000 whIch dates have been agreed to by the parnes prevIously
Dated at Toronto, Ontano thIS 13th day of March, 2000
~
o _ - - _ - _ - <_ _ _
"'" -. - '"=-'
. ~ :.0 . ..;
Susan D Kaufman, Vice-Chair
35