HomeMy WebLinkAbout1999-1375.Lariviere.01-04-10 Decision
o NTARI 0 EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
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GSB#1375/99
UNION FILE#OLB043/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntarIO LIquor Boards Employees Dmon
(LanvIere)
Gnevor
- and -
The Crown m RIght of Ontano
(LIquor Control Board of OntarIO)
Employer
BEFORE Darnel A. Harns Vice-ChaIT
FOR THE Craig Flood, Counsel
GRIEVOR KoskIe Minsk"
Barnsters and SolIcItors
FOR THE Michael G Sherrard, Counsel
EMPLOYER Ogil~ Renault
Barnsters and SolIcItors
HEARING September 25 2000 and December 4 2000
2
DECISION
The Proceedmgs
ThIs matter first came on for heanng on February 3, 2000 m Guelph,
Ontano At that tIme the partIes entered mto negotIatIOns wIth a VIew to resolvmg
or focusmg the Issues The matter resumed Apnl 28, 2000, at whIch tIme the
employer raised a prelImmary ObjectIOn that the Board had no jUnSdlctIOn to hear
the matter by operatIOn of eIther the prmclple of res judicata or issue estoppel An
mtenm decIsIOn dated May 12,2000 resolved that aspect of the proceedmgs
The matter was resumed September 25, 2000 for argument on thIS further
prelImmary Issue as to jUnSdlctIOn. Those arguments were completed December
4, 2000 The partIes agree that thIS matter raises the followmg questIOns and now
ask the Board to answer the first questIOn
I ) Does the language of the collectIve agreement, on Its face, estabhsh the
arbltrabih~ of a grIevance concernmg long-term mcome protectIOn (hereafter
L TIP)?
2.) Is there a patent amblguI~ concernmg the arbltrabih~ of L TIP benefits?
3 ) Is there a latent amblguI~ concernmg the arbltrabih~ ofLTIP benefits?
3
The Facts
The facts gIvmg nse to the gnevance are straightforward. The gnevor, Mr
LanvIere was demed L TIP benefits He filed a gnevance, whIch sought an order
confirmmg elIgIbIlIty and dIrectmg the LeBO to provIde hIm wIth LTIP benefits
The partIes have resolved the gnevor's claims but none the less agreed that the
legal questIOns set out above should be determmed. They are to be commended for
takmg thIS approach. The gnevance alleges a breach of artIcle 20 of the collectIve
agreement, the relevant portIOns of whIch read as follows
ARTICLE 20
Employees' Group Insurance and Medical Benefits Plans
The summanes contamed m ArtIcle 20 I through 20 5 mclusIve and 20 7 are mtended
mereh as a convement reference to the more Important terms and provISIOns of these
benefits. The master contracts covenng these plans shall be the govemmg documents.
20.5 Long Term Income ProtectIOn Plan (L.TI.P)
(a) The L. TI.P Plan shall be contmued and shall be upon the same baSIS as
heretofore m effect.
(b) Plan Details
(i) L. TI.P benefits will become payable If while msured the
employee becomes 'totalh dIsabled" - benefits contmue durmg
dIsabih~ to age SIX~ - five (65), after an ehmmatIOn penod of SIX
(6) months, or the eXpIratIOn of accumulated attendance credIts,
whIchever IS the latter
(ii) 'Total dIsabih~ under tillS plan means the contmuous mabih~
as the result of illness or mJDn of the msured employee to
perform each and even du~ of normal occupatIOn durmg the
ehmmatIOn penod, and dunng the first twen~-four (24) months
of the benefit penod, and thereafter durmg the balance of the
benefit penod, the mabih~ to perform an, and even du~ of
4
each gamful occupatIOn for whIch the employee IS reasonabh
fitted b, educatIOn, trammg or expenence
(iIi) L.T.I.P benefits shall be SIX~-SIX and two-thIrds percent (66
2/3%) of the employee s gross salan earned on the last da,
worked, mcludmg an, retroactIve salan adjustment to whIch the
employee IS entItle d
(iv) While the employee IS receIvmg L. TI.P benefits, the Emplover
will mamtam the employee s penSIOn contributIOn m accordance
WIth the OPSEU PenSIOn Plan text.
(v) If the employee becomes dIsabled agam while still msured for
thIS benefit, the mcome benefits will be payable on completIOn
of the ehmmatIOn penod however IfwIthm three (3) months
after benefits have ceased, the employee has a recurrence of a
dIsabih~ due to the same or a related cause It will not be
necessan to satIsn the ehmmatIOn penod agam.
(vi) An employee m receIpt of L TI.P benefits who IS able to
resume actIvI~ on a gradual basIs dunng recoven partIal
benefits ma, be contmued durmg rehabihtatIve employment -
rehabIhtatIve employment means remuneratIve emploVIrent
while not vet fulh recovered, followmg dIrecth after the penod
of total dIsabih~ for whIch benefits were receIved - when
consIdenng rehabihtatIve employment benefits, L. TI.P will take
mto account the employee s trammg, educatIOn and expene nce -
the rehabihtatIve benefit wIll be the monthh L T.I.P benefit less
fifu percent (50%) ofrehabihtatIve employment earnmgs - the
benefit will contmue durmg the rehabihtatIve employment
penod up to but not more than twen~-four (24) months-
rehabihtatIve employment ma, be WIth the Emplover or WIth
another employer
(vIi) L.T.I.P was optIOnal for employees appomted up to June 30th
1971 - these employees ma, opt out of the L.TI.P plan m the
future If the, so desIre - employees appomted Juh 1 1971 and
subsequenth do not have the pnvilege of optmg out the L. TI.P
benefit.
( vlli) The L.TI.P benefit under (m) will be mcreased for each
employee who commenced to receIve L. TI.P benefits
(a) from and mcludmg Januan 1 1981 to and mcludmg
December 31 1982, b, eIgh~ dollars ($8000) per month,
5
(b) from and mcludmg Januan 1 1983 to and mcludmg
December 31 1984 b, SIX~ dollars ($6000) per month,
(c) from and mcludmg Januan 1 1985 to and mcludmg
December 31 1986 b, fom - five dollars ($45 00) per month,
(d) from and mcludmg Januan 1 1987 to and mcludmg
December 31 1988 b, fom dollars ($4000) per month,
(e) from and mcludmg Januan 1 1989 to and mcludmg
December 31 1990 b, twen~ dollars ($20 00) per month,
(f) from and mcludmg Januan 1 1991 to and mcludmg
December 31 1992, b, ten dollars ($10 00) per month,
In respect of each month the employee contmues to receIve
L. TI.P benefits under the plan.
(ix) The L. TI.P benefit to whIch an employee IS entItled under (iIi)
and (vm) above will be reduced b, the total of other dIsabih~ or
retIrement benefits payable under an, other plan toward whIch
the Employer makes a contributIOn except for W orkplace Safe~
and Insurance Benefits paid for an unrelated dIsabih~
(c) The Employer shall pa, one hundred percent (100%) of the premIUm as
ma, be amended from tIme to tIme
(d) (i) When an employee, who has been receIvmg L TI.P benefits, IS
able to return to full tIme employment the Employer ma, assIgn
the employee to a vacanc, whIch IS m the same class or posItIon
as the employee S former class or posItIOn, for whIch he/she IS
quahfied.
(ii) Where there IS no such posItIOn the employee ma, be assIgned to
a lower classIficatIOn for whIch he/she IS quahfied, m the work
area.
(iIi) An employee who IS assIgned under thIS clause shall be paid at
the same step he/she had attamed m the salan range of the
classIficatIOn of the posItIOn he/she occupIed pnor to dIsabih~
for a penod of SIX months. At the end of that penod he/she shall
be paid at a rate wIthm the salan range of the classIficatIOn of
the posItIOn to whIch he/she has been assIgned.
(iv) Where there IS no available posItIOn m the work area for whIch
the employee IS quahfied, he/she shall be declared surplus
subject to the provIsIOns of ArtIcle 5
6
(v) Where an employee does not accept an assIgnment under thIS
clause he/she shall be laid off and the provIsIOns of ArtIcle 5 7
shall not apph
(vi) It IS understood that when It IS necessan to assIgn an employee
under tlus sectIon the provIsIOn of ArtIcle 21 shall not apph
20.6 Jomt Insurance and Benefit CommIttee
(a) The CommIttee shall be referred to as the Jomt Insurance Benefits RevIew
CommIttee
(b)
(i) The purpose of thIS CommIttee IS to facihtate communIcatIOns
between the Employer and the Dmon on the subject of Group
Insurance mcludmg BasIc LIfe Insurance, Supplementan LIfe
Insurance Supplementan Health & HospltahzatIOn Insurance
(mcludmg VISIOn care) Long Tern Income ProtectIOn Insurance
Dental Plan and such other negotIated benefits as ma, from tIme
to tIme be mcluded m the Group Insurance Plan.
(ii) It IS understood that the Group Insurance benefits to be provIded
to employees and the cost shanng arrangements between the
Employer and ItS employees shall be as set out m an, apphcable
collectIve agreement or arbItratIOn award, and the matters for
consIderatIOn b, thIS CommIttee shall be onh as set out m these
terms of reference
(c) The CommIttee shall be composed of an equal number of representatIves
from the Employer and the Dmon WIth not more than eIght (8)
representatIves m total. At meetmgs of the CommIttee, each pam ma, be
accompanIed b, an actuan and/or consultant to provIde techmcal advIce and
counsel.
(d) (i) The dutIes of the CommIttee shall consIst of the followmg:
(a) development of the specIficatIOns for the pubhc
tendenng of an, negotIated benefits whIch ma, be
mcluded m the Group Insurance Plan (to cover the
bargammg unIt onh)
(b) determmatIOn of the manner m whIch the specIficatIOns
wIll be made available for pubhc tendenng;
(c) consIderatIOn and exammatIOn of all tenders submItted
m response to the specIficatIOns for tender and
preparatIOn of a report theron,
7
(d) recommendatIOn to the Government of Gntano on the
selectlon of msurance carner or carners to underwnte
the Group Insurance Plans,
(e) reVIew of the semI-annual financIal reports on the Group
Insurance Plan, and,
(f) reVIew of the contentIOus claims and recommendatIOns
thereon, when such claim problems have not been
resolved through the eXlstmg admmlstratlve procedures.
(ii) The specIficatIOns for tender will describe the benefits to be
provIded, the cost shanng arrangement between the Employer
and ItS employees, the past financIal hlston of the msurance
plans, the employee date the format for the rententlon
illustratIOn for each coverage and the financIal reportmg
reqUIrements. Tenders shall be entertamed b, the CommIttee
from an, mdlvldual msurance carner actmg soleh on ItS own
behalf. ThIs shall not preclude such carner from arrangmg
remsurance as ma, be necessan
(ili) The basIs for recommendatIOn of an msurance carner(s) will
mclude the abih~ of the carner(s) to underwnte the plan,
comphance of the carner s quotatIOn WIth the specIficatIOns for
tender the carner s servIce capabihtles and the expected long
term net cost of the benefits to be provIded.
(e) (i) The CommIttee will also meet even SIX (6) months to reVIew the
financIal expenence under these coverages. The specIficatIOns
for tender will describe the mformatlon to be mcluded m the
semI-annual financIal statements to be prepared b, the msurance
carner(s) These statements will mclude paid premmms, paid
claims, changes m reserve claims, mcurred claims, the retentIOn
elements of commISSIOns, taxes, admmlstratlve expenses,
contmgenc, reserve charges and mterest credIts on claims and
other reserves. The msurance carner(s) will also be reqUIred to
report on the level and method of admmlstenng the Employer s
and employee s deposIt accounts.
(ii) The CommIttee shall request the msurance carner(s) to provIde
such addltlonal mformatIOn for the CommIttee s consIderatIOn as
ma, be reqUIred b, eIther the Employer or the Dmon.
(ili) If the Jomt Insurance Benefits RevIew CommIttee fails to agree
on a recommendatIOn to the Government of Gntano on the
selectIOn ofmsurance carner(s) to underwnte the Group
Insurance Plan, the members of the said CommIttee nommated
b, the Employer and the Dmon ma, each make a
recommendatIOn m wntmg to the Government of Gntano on the
selectIOn of the msurance carner(s) supported b, reasons for
theIr respectlve recommendatIOns
8
(iv) It IS understood that the Government at all tImes retams the nght
to select whatever carner(s) (to underwnte the Group Insurance
Plan) It ma, consIder what would best serve the pubhc mterest
and, m so domg, IS under no obhgatIon to select a carner(s) that
ma, be recommended b, the Jomt Insurance Benefits RevIew
CommIttee
The SubmissIOns of the Parties
The employer argued that the terms of the collectIve agreement do
not Impose on It an oblIgatIOn to determIne elIgIbIlIty of any employee to receIve
L TIP benefits It IS only oblIged to pay the cost of premIUms to obtaIn the
necessary coverage, and there IS no allegatIOn that the employer faded to secure
appropnate benefit coverage through Insurance
The employer argued that the appropnate legal framework for
consIdenng thIS matter has been laId down by the Ontano Court of Appeal In
London Life Insurance Co v Dubreuil Brot hers Employees Assn. a Division of
IW A Canada Local 2693 (2000), 49 O.R. (3d) 766 (leave to appeal to S C C
dIsmIssed, March 15, 2001) Paragraphs 10 and 37 of the Court of Appeal's
decIsIOn read as follows
10 On JudIcIal reVIew the DIvISIOnal Court approached the matter dIfferenth It
acknowledged the arbItratIOn Junsprudence has over the years developed a well
9
understood method of decIdmg the arbItrabih~ of benefit entItlement claims ThIs
mvolves determmmg mto whIch of four categones the language of the partIcular
collectIve agreement falls These four categones were ongmalh IdentIfied m Brown and
Bea~ CanadIan Labour ArbItratIOn, 3n] ed. (1988) and are as follows
1. where the collectIve agreement does not set out the benefit sought to be enforced,
the claim IS marbItrable
2. where the collectIve agreement stIpulates that the employer IS obhged to provIde
certam medIcal or sIck pa, benefits, but does not mcorporate the plan mto the
agreement or make specIfic reference to It, the claim IS arbItrable
3 where the collectIve agreement onh obhges the employer to pa, the premmms
assocIated WIth an msurance plan, the claim IS marbItrable and
4. where an m msurance pohc, IS mcorporated mto the collectIve agreement, the
claim m arbItrable
37 In the result, the decIsIOn of the DIvIsIOnal Court quashmg the arbItratIon award
IS correct and the appeal must be dIsmIssed WIth costs mcludmg the costs of the motIon
seekmg leave to appeal.
The employer submItted that the preamble of ArtIcle 20 IS a promIse to buy
msurance and does not mcorporate the contracts by reference Accordmgly, the
essential character of thIS dIspute IS the gnevor's entitlement to L TIP benefits,
whIch thIS collective agreement provIdes IS a determmatIOn to be made by the
msurance carner The demal of entitlement IS a matter for the courts to decIde at
the SUIt of the gnevor
The employer relIed on the followmg authontIes London Life Insurance
Co v Dubreuil Brothers Employees Association, a Division of IW A Canada
Local 2693 (supra), Sun Life Assurance Co of Canada v National Automobile
10
Aerospace Transportation and General Workers Union of Canada [2000] O.J
No 2608 (C A), Re Canadian Broadcasting Corp v Burkett (1997), 155 D.L.R.
(4th) 159 (Ont. C A), Re Esselte Canada Inc v G C.I U LocallOO-M (1998), 76
LAC (4th) 32 (Nairn), Brown and Beatty, Collective Labour Arbitration, 3rd ed.
(Aurora, Ont Canada Law Book, 1999) at ~ 4 1400, Re Coca-Cola Bottling v
UFCW (Boud) (1994), 44 LAC (4th) 151 (Swan), D P S.E U (Hooey) v
Ministry of Health, (November 15, 1982, GSB #348/81, unreported Weathenll,
Craven, ReIstetter), Re Public Service Alliance of Canada v Alliance Employees
Union (1998), 77 L.AC (4th) 47 (Burkett), Re Dominion Tanners and UF C W
Local 832 (1996), 56 LAC (4th) 392 (HamIlton), Re Abbott Laboratories and
R.W.D S U (1998), 74 LAC (4th) 331 (R.Brown), Re SKD Co and C.A W
Canada Local 89 (Pereira) (1999), 82 LAC (4th) 248 (WIllIamson), Re
Renfrew (County) and D.N.A. (1995) 49 LAC (4th) 270 (Fraser, Herbert,
Pearlman)
The umon argued that the Issue before the Board IS the extent to whIch the
L TIP benefit language IS arbItrable The umon said that the provIsIOns of ArtIcle
20 5 are a commItment to provIde the benefits lIsted, bnngmg thIS collectIve
agreement wIthm the second category set out above The umon pomted to the
extensIve recItatIOn of the benefits covered as a promIse to provIde the benefits
and an mdIcatIon that the partIes mtended that entItlement be arbItrable On that
basIs, the failure to provIde the benefits IS arbItrable
11
Further, and In the alternative, thIS collective agreement has elements of
category four because there IS sufficIent reference to the Insurance documents as to
Incorporate them by reference and thereby render theIr terms arbItrable
The Umon said that the Board must be careful not to Impose ngId
categones upon the collective agreement. Rather, the essential character of he
collective agreement IS to be determIned. In so dOIng, there are elements here of
categones 2, 3, and 4, whIch IndIcates an IntentIOn to Impose upon the employer
enforceable promIses beyond the mere payment of premIUms By way of
example, the umon noted that the collective agreement contaInS antI-
dISCnmInatIOn provIsIOns that may be abndged by the provIsIOns of the Insurance
contracts There was said to be a resIdual arbItrabIlIty that allows the Board to
assure Itself that the polIcIes are In corrplIance WIth the general law, such as
human nghts and equalIty law That IS, arbItrable gaps In coverage do not stop at
the benefits provIded by the Insurance but Include a quasI-constitutIOnal nghts
analysIs Therefore, whatever the answer to questIOn one, the Board may always
assess whether there are gaps In coverage At stake are the nghts of dIsabled
workers It IS artIcle 2 1 (b) that deals wIth dISCnmInatIOn. It reads as follows
2.1 (b) There shall be no dIscnmmatlOn or harassment practIsed b, reason of race,
ancesm place of ongm, colour ethnIc ongm, cItIzenshIp creed, sex, sexual
12
onentatIOn, age, marItal status, famih status, or handIcap as defined m the
Ontano Human RIghts Code
The umon also submItted that ArtIcle 206 supports a findmg that the
mtentIOn of the partIes was that the employer IS lIable for the provIsIOn of benefits
not sImply the payment of premIUms, smce that artIcle provIdes for comprehensIve
Jomt admmIstratIOn.
The Umon relIed on the followmg authontIes Gibbs v Battlefords and
District Co-operative Ltd. (1996), 140 D.L.R. (4th) 1, London (City) (Dearness
Home) and London & District Service Worker s Union, Loc 220 Re (1991), 19
LAC (4th) 213 (Hunter), A.E McKenzie Co and U.E C W Loc 832 Re (1993),
37 LAC (4h) 129 (HamIlton), British Columbia Rapid Transit Co and Office &
Technical Employees Union, Loc 378 Re (1989), 6 LAC (4th) 310 (McColl),
Domglass lnc and United Glass & Ceramic Workers Local 201 Re (1985), 22
L A.C (3d) 355 (Beatty), lCG Utilities Greater Winnipeg Gas Co and E C W U
Loc 681 Re (1989), 8 L A.C (4th) 289 (Freedman), Coca-Cola Bottling Ltd. and
R.W.D S U Loc 1065 (Colpitts) (Re), (1998), 76 L A.C (4th) 105 (ChnstIe),
Longlac (Town) and I W.A Canada Loc 2693 (Abernot) (re) (1999), 82 L A.C
(4th) 368 (Haeflmg), Atlantic Packaging Products Ltd. and G C.I U Loc N-1
(Ramnarine) (Re) (1997), 68 L A.C (4th) 174 (Carner), Oakville (Town) and
C U.P.E Loc 136 (Pillon) (Re) (1997), 68 L A.C (4h) 117 (O'NeIll)
13
The employer said In reply that the cases relIed on by the umon dealt wIth
gaps In the Insurance coverage provIded. It conceded that an allegatIOn of a gap In
coverage would be arbItrable, however, there IS no gap alleged here Also, In thIS
matter there IS no allegatIOn of a breach of human nghts or the antI- dISCnmInatIOn
clause of the collective agreement, whIch would also be arbItrable FInally, wIth
respect to artIcle 2006, the employer said that the scope afforded to JOInt
admInIstratIOn was very lImIted and dId not support the argument concernIng the
arbItrabIlIty of benefit demal
Reasons for DecIsIOn
Leave to appeal the decIsIOn In Dubreuil (supra) was demed by the
Supreme Court of Canada on March 15, 2001 AccordIngly, the four well- known
and long-establIshed categones under whIch benefits are provIded In a collective
agreement contInue to gIve the labour-relatIOns commumty a framework wIthIn
whIch the partIes are taken to operate As submItted by the umon, the categones
are not hard and fast compartments Into whIch a collective agreement must be
press- fit. Rather, they are a compendIOus statement of how a great many
collective agreements have chosen to express benefit provIsIOns Now, as always,
the source document for determInIng the partIes' IntentIOns IS the collective
agreement, not Brown and Beatty's text, as helpful a tool as It IS
14
In Dubreuil (supra), the Court of Appeal settled the controversy engendered by
Pilon v International Minerals and Chemical Corp (1966),31 O.R. (3d) 210 by
reVIeWIng the benefit provIsIOns of the collective agreement In lIght of the
analytical framework of Weber v Ontario Hydro [1995] 2 S C.R. 929 The proper
applIcatIOn of the common law led the Court of Appeal to the conclusIOn that the
dIspute In Dubreuil dId not anse out of the collective agreement and was therefore
beyond the exclusIve JunsdlctIOn of the arbItrator The collective agreement and
the dIsputes that anse from It are the core of that exclusIve Junsd IctIOn.
In Regina Police Association Inc v Regina (City) Board of Police Commissioners
[2000] 1 S c.R. 360 Bastarache J , In paragraph 25, elaborated on the analytical
approach of Weber There are two elements to consIder the nature of the dIspute,
that IS, ItS essential character, and the ambIt of the collective agreement Bastarache
J 's comments are cIted In Dubreuil at paragraph 21 and read as follows
To determme whether a dIspute anses out of the collectIve agreement, we must therefore
consIder two elements the nature of the dIspute and the ambIt of the collectIve
agreement. In consldenng the nature of the dIspute, the goal IS to determme ItS essentIal
character ThIs determmatIOn must proceed on the basIs of the facts surroundmg the
dIspute between the partIes, and not on the basIs of how the legal Issues ma, be framed.
see Weher supra at para. 43 SImph the decIsIOn-maker must determme whether
havmg exammed the factual context of the dIspute ItS essentIal character concerns a
subject matter that IS covered b, the collectIve agreement. Upon determmmg the essentIal
character of the dIspute the decIsIOn-maker must examme the provISIOns of the collectIve
agreement to determme whether It contemplates such factual sItuatIOns. It IS clear that the
collectIve agreement need not provIde for the subject matter of the dIspute exphclth If
the essentIal character of the dIspute arIses eIther exphclth or Imphclth from the
mterpretatIOn, apphcatIOn, adnUll1stratIOn or vIOlatIOn of the collectIve agreement, the
dIspute IS wlthm the sole JUrISdIctIOn of an arbItrator to decIde see e g. Weher at para.
54 Neyt, Brunswick v O'Learv supra at para. 6
15
It IS agreed that the essential character of thIS dIspute IS the gnevor's
entitle ment to L TIP benefits Is that a dIspute that the partIes mtended to settle
between themselves at arbItratIOn? That IS, does the collective agreement govern
that dIspute? It IS Important to note that I am here asked specIfically to consIder
the plam rreanmg of the words of the collective agreement.
Article 20, entitled "Employees' Group Insurance and MedIcal Benefits Plans",
mcludes the Important preamble set out above and agam reproduced for
convemence as follows
The summanes contamed m Arnc Ie 20 1 through 20 5 mclusIve and 20 7 are mtended
merely as a convement reference to the more Important terms and provISIOns of these
benefits. The master contracts covenng these plans shall be the govemmg documents.
A "plam-meanmg" parsmg of that paragraph neIther mdIcates neIther that
the employer IS oblIged to provIde those benefits nor that the employer IS oblIged
only to purchase msurance Further, the reference to ArtIcles 20 1 through 20 5
and 20 7 bemg merely convement references "to the more Important terms and
provISIOns of these benefits" also does not speak to the oblIgatIOn of the employer
to eIther provIde the benefits or purchase msurance to provIde them. Also, It
cannot be said that the reference to the "master contracts" plamly mtends to
mcorporate those contracts They are said to be the governmg documents, but
theIr status as part and parcel of the collective agreement IS not clearly expressed.
They are not defined wIth such preCISIOn as to be capable of mcorporatIon by
16
reference The preamble sImply sets out that the provIsIOns that follow are the
benefits that have been negotiated. It does not say how elIgIbIlIty wIll be
determIned.
Article 20 5 deals dIrectly and comprehensIvely wIth L TIP benefits The
L TIP plan IS Said to contInue There IS no descnptIOn of ItS form, whIch IS neIther
a clear IndIcatIOn of ItS enforceabIlIty at arbItratIOn nor IncOrporatIOn by reference
The artIcle does go on to clearly define the vanous benefits to be accorded covered
emp loyees Covered employees are descnbed as "Insured" employees ArtIcle
205 (b) (1) provIdes In part that "LTIP benefits wIll become payable ifwhile
insured the employee becomes 'totally dIsabled' " and In artIcle 205 (b) (11)
reference IS made to the "Insured employee" These are clear IndIcatIOns that
benefit coverage IS Intended to be achIeved through Insurance ArtIcle 20 5 (c) also
clearly reqUIres the employer to pay "one hundred percent (100%) of the
premI urn" The rest of the artIcle goes on to p-ovIde for the employer's and
employee's nghts and oblIgatIOns on return to work after havIng receIved LTIP
benefits
The umon relIed on artIcle 20 6 "JOInt Insurance and Benefit CommIttee"
as an expressIOn of the partIes' IntentIOn that the employer Itself IS lIable for the
benefits promIsed to the members of the bargaInIng umt It submItted that such a
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comprehenSIve Jomt admmIstratIOn IS mconsIstent WIth devolvmg entitlement
questIOns to an outsIde msurance company
ArtIcle 20 6 (b) descnbes L TIP benefits as negotiated benefits However,
that does not amount to a promIse to provIde benefits rather than purchase
msurance to cover the enumerated benefits Of partIcular mterest IS artIcle 20 6
(b) (11) That artIcle bears repeatmg
It IS understood that the Group Insurance benefits to be provIded to employees and the
cost shanng arrangements between the Employer and ItS employees shall be as set out m
an, apphcable collectIve agreement or arbItratIOn award, and the matters for
conSIderatIOn b, thIS CommIttee shall be onh as set out m these terms of reference
That provISIOn IS a clear expreSSIOn that the "Group Insurance benefits" are
as defined m the collective agreement. I There IS no reference here to any master
contracts, or mcorporatIOn of contracts by reference That IS, the agreement sets
out a lIst of benefits to be provIded by "Group Insurance" The subsequent
provISIOns lay down a comprehenSIve Jomt procedure for obtammg the "Group
Insurance" bemg the purchase of ms urance to provIde the benefits set out m the
"collective agreement or arbItratIOn award."
1 There IS also a reference to benefits set out m an arbitration award, I take that as the potential for an
mterest arbitration award, m view of this Board s exclusive Junsdlctlon over nghts matters and the standard
prohibition contamed m Article 27 10 agamst altenng, moddvmg or amendmg the collective agreement.
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In my VIew, taken as a whole, the language of artIcle 20, on Its plam
meanmg, mdIcates an mtentIOn by the partIes that specIfic enumerated L TIP
benefits wIll re provIded to elIgIble members of the bargammg umt by means of
msurance That IS the ambIt of thIS collective agreement. The ambIt does not
mclude an oblIgatIOn by the employer to dIrectly provIde those benefits nor does
the collective agreement mcorporate the msurance contracts by reference It
would reqUIre clear language to do so and that language IS absent. Indeed the
language of ArtIcle 20 6 IS completely consIstent WIth, and mdIcatIve of, an
mtentIOn to create contracts of msurance that are dIstant from the collective
agreement It IS the Government of Ontano that ultimately selects the carner It IS
free to Ignore the recommendatIOn of the Jomt CommIttee If It IS m the "publIc
mterest" to do so
The present dIspute over the gnevor's demal of entitlement IS not wIthm the
ambIt of the collective agreement The umon has expressed other concerns,
examples and sItuatIOns such as potential human nghts vIOlatIOns Those are
dIfferent dIsputes wIth dIfferent facts and essential cmracters that may or may not
fall wIthm the ambIt of the collective agreement and the exclusIve JunsdIctIOn of
thIS Board. In such cases the Issue would be whether the employer has purchased
a lawful msurance polIcy that covers the enumerated benefits That IS, whether or
not there IS a gap between the msurance obtamed and all of the promIses of the
collective agreement, consIdered wIthm the context of the general law In thIS case
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there IS no allegatIOn that there IS a gap between the msurance purchased and the
benefits promIsed by the collective agreement. If the employer falls to purchase
the msurance necessary to provIde for the benefits negotiated m the collective
agreement, that failure would be arbItrable In my VIew, thIS IS an example of
Brown & Beatty s thIrd category
The DecIsIOn
The employer's oblIgatIOn IS to pay the premIUms associated wIth an
msurance plan for defined benefits The language, on ItS face, does not establIsh
the arbItrabIlIty of a gnevance concernmg elIgIbIlIty for long-term Income
protectIOn.
Dated at Toronto, thIS loth day of Apnl, 2001
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Damel A. Harns, VIce Chair