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HomeMy WebLinkAboutSwick et al 13-11-01IN THE MATTER OF AN ARBITRATION PURSUANT TO THE PROVISIONS OF THE LABOUR RELATIONS ACT, 9995 BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 479 (The "Union") -and- THE ROYAL OTTAWA HEALTH CARE GROUP (The "Hospital") RE: DECISION CONCERNING JURISDICTION BEFORE: SYDNEY BAXTER SOLE ARBITRATOR LOCATION OF HEARING: DATE(S) OF HEARING: ON BEHALF OF THE UNION: ON BEHALF OF THE HOSPITAL: OTTAWA, ONTARIO FEBRUARY 13, 20'13 AUGUST 30, 2013 MR. WASSIM GARZOUZI MS. CAROLINE RICHARD -I - These proceedings concern four grievances ii 6d%the Ontario Public Service Employees Union, Local 479 (the "Union") all of which relate to the Short Term Disability (STD) provisions under the Collective Agreement between the Union and The Royal Ottawa Health Care Group (the "Hospital"). Two of the grievances were filed on behalf of Ms. Patrica Swick, a Social Worker, and one grievance was filed on behalf of Ms. Sandra Jomphe, a Speech and Language Pathologist, (the "Grievors' . The fourth, is a Union/Policy grievance. At issue is whether this arbitrator has jurisdiction to hear the Union's allegations that the STD Cnsurance Policy is first, discriminatory and second, not in compliance with the terms of the Collective Agreement. The relevant provisions of the Collective Agreement are the following: ARTICLE 5 - NO DISCRIMINATION OR HARASSMENT 5.01 The Hospital and the Union agree thatthere will be no discrimination, interference, intimidation, restriction or coercion exercised or practised by any of their representatives with respect to any employee because of his.membership or non -membership in the Union or activity or lack of activity on behalf of the Union or by reason of exercising his rights under the Collective Agreement. 5.02 The Hospital is committed to providing a work environmentthat is free of harassment and which supports the dignity and self-esteem of every employee. As such, the Hospital and the Union agree that personal and sexual harassment of or by any of its employees in the workplace will not be tolerated. The Hospital and the Union also agree that there will be no discrimination or harassment in the workplace by either party or by any of the employees covered by this Agreement against any employee or Employer representative on the basis of any prohibited ground as defined by the Human Rights Code. For clarification, the prohibited grounds are race, ancestry, place or origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or record of offences. ..2- 5.03 Every employee who is covered by this Agreement has a right to freedom from harassment in the workplace in accordance with the Ontario Human Ri hts Code. 1.0.03 a) It is the mutual desire of the parties hereto that complaints shall be adjusted as quickly as possible, and it is understood that an employee has no grievance until she has first given her immediate supervisor the opportunity of adjusting her complaint. Such complaint shall be discussed with her immediate supervisor within nine (9) calendar days from the event giving rise to the grievance, or from when the employee should have reasonably become aware of the event giving rise to the grievance. Failing settlement within nine (9) calendar days, it may then be taken up as a grievance within nine (9) calendar days following her immediate supervisor's decision in the following manner and sequence. Step 9 The employee must submit a written grievance, through the Union, signed by her to her immediate supervisor with a copy to Human Resources. The grievance shall identify the nature of the grievance, the remedy sought, and the specific provision(s) of the -Agreement alleged to have been violated. The immediate supervisoror designate will deliver her decision in writing within nine (9) calendar days following the day on which the grievance was presented to her.. Failing settlement, the grievance may then proceed to Step 2 of the grievance procedure. Step 2. Within nine (9) calendar days following the decision under Step 1, the grievance may be submitted in writing to the Director of Human Resources of the Hospital or designate. A meeting will then be held between the Grievance Committee and a representative of the LeadershipTeam within nine (9) calendar days of the submission of the grievance at Step 2 unless extended by agreement of the parties: It is understood that either party may have such assistance as they may desire at such meeting. The decision of the Hospital shall be delivered in writing within nine (9) calendar days following the date of such meeting. M b) Either party to this agreement may raise a complaint with the other party. Should such a complaint not be resolved, a grievance may be filed as per the above process. 10.04 Policy Grievance A grievance arising directly, between the Hospital and the Union concerning the interpretation, application or alleged violation of the Agreement shall be originated at Step 2 within fourteen (14) calendar days following the circumstances giving rise to the grievance. It is expressly understood, however, that the provisions of this Article may not be used with respect to a grievance directly affecting an employee which she could have instituted herself and the regular grievance procedure shall not be thereby bypassed. Where the grievance is a Hospital grievance it shall be filed with the Local Union President or designate. 10.13 The Arbitration Board shall not be authorized to make any decision inconsistent with the provisions ofthisAgreement, nor to alter, modify, add to or amend any part of this Agreement. ARTICLE -17 - SICK LEAVE AND LONG-TERM DISABILITY NOTE: The provisions of Article 17, Sick Leave and Long -Term Disability, apply to full time employees and regular part-time employees regularly scheduled eighteen and three-quarter (18.75) hours/week or more. 17.01 Regular part-time employees regularly scheduled eighteen and three-quarter(18.75) hours/weekormorewill receive pro -rated benefits based on the number of hours worked. 17.02 Sick Leave Employees will receive one hundred percent (100%) of the basic salary for the first twenty-eight (28) working days of sickness or disability in a calendar year. New employees will receive a prorated amount on the basis of two and one-third (2.33) days per month remaining in the calendar year since the day of hire but in any event not less than seven (7) days in the first year of employment. The benefit is one hundred percent (100%) paid by the ROHCG_ There is no waitip2 .period for sick leave benefits. The twenty-eight (28) days are reinstated -4 - each January 1st, for active employees and are not cumulative from year to year. There is no cash value to these credits on termination of employment. After the twenty-eight (28) days of sick leave (at one hundred percent (100°/x) of salary) are used and if the disability continues, a short-term disability plan is provided for permanent full-time employees or permanent regular part-time employees regularly scheduled eighteen and three-quarter (18.75) hours/week or more and have at least three (3) months of service with the ROHCG. The Short -Term Disability Plan is insured by an Insurance Company which will pay up to one hundred percent (900%) of the employee's weekly earnings up to a maximum benefit of two thousand three hundred dollars ($2,300) per week based on the following years of service. Length of Service Total of weekly earnings Up to 2 years 75% 2 years and up to 3 years 80% 3 years and up to 4 years 90% 4 years or more 100% The Short -Term Disability Plan period will continue for a seventeen (17) week period which includes the twenty-eight (28) days of sick leave, provided the disability continues. The ROHCG will pay one hundred percent (100%) of the billed premium costs for all benefits during the Short -Term Disability period. 17.03 After seventeen (17) weeks of Short -Term, Disability, an employee who continues to be disabled will be covered by the Insurance Company for seventy percent (70%) of gross salary to a maximum of six thousand five hundred dollars ($6,500) of benefits per month in accordance with the terms of the plan. The Hospital will pay the employer portion of the benefits premiums while on LTD to a maximum of 30 months from the date the absence first began. 17.04 Any dispute which may arise concerning an employee's entitlement to short-term or long-term benefits may be subject _5_. to grievance and arbitration under the provisions of this Agreement. 17.05 Employees who have a frozen sick leave bank will have it paid out upon termination/retirement. No viva voce evidence was presented at the hearing. Rather, the parties introduced a joint book of documents and in addition, each of the parties read into the record supplemental facts, in support of their respective positions. Both Grievors suffer from medical conditions that prevent them from working 37 1/z hours per week, which is the normal workweek for employees performing similar functions. Ms_ Swick's condition prevents her from working a 7.5 hour shift per day. She at most, is able to work 6 hours in the course of a normal day and uses her sick leave to cover the remaining 1.5 hours. The result is that each week she exhausts one day of her sick leave credits Ms. Jomphe's condition prevents her from working the entire week. She is able to work 4 days of a normal work week and uses her sick leave to cover day 8. Similar to Ms. Swick, each week Ms. Jomphe exhausts one day of her sick leave credits. The problem for both Grievors arises once they have used up the 28 days of yearly sick leave provided for under article 17.02 of the Collective Agreement. More particularly, their claims for STD, to coverthe shortfall in the respective workday and workweek, were denied by the insurance carrier on the basis that they were not totally disabled. The STD plan is administered by Manulife Financial ("Manulife"). Manulife's position concerning the Grievors' claims for STD is best illustrated by the following excerpt of a letter, from it to Ms. Swick, dated October 28, 2011, denying her claim: IN We have completed our evaluation of your claim under the provisions of the Royal Ottawa Health Care Group (STD) plan_ Your STD benefits have been declined. Policy Overview; The group Policy defines "Total Disability" or "Totally Disabled' for non - retired employee as: (A) wholly and continuously disabled due to illness or bodily injury and as a result, the employee is not physically or mentally fit to perform the essential duties of his normal occupation. The Union contends thatthe Manulife policy, chosen bythe Hospital, is discriminatory, and therefore, is clearly in conflict with the provisions of article 5 of the Collective Agreement and the Ontario Human Rights Code. The Union argues further that the policy is not in compliance with article 17.02 of the Collective Agreement. The Hospital raised three preliminary objections to my jurisdiction to hear the grievances: 1. That an .arbitrator does not have jurisdiction, under this Collective Agreement, to hear questions relating to the eligibility of benefits under the insurance contract, administered by Manulife... 2. That an arbitrator does not have jurisdiction to determine whether the insurance contract drafted by Manulife is discriminatory or applied in a discriminatory manner by Manulife.. It was the Hospital's position that the proper forum to deal with questions 1 and 2 are in a civil action against Manulife or a human rights complaint before the Provincial Human Rights Tribunal. -7- 3. That this arbitrator does not have jurisdiction to hear Ms. Jomphe's grievance as it was fled out of time. HOSPITAL'S ARGUMENT The Hospital stated, without dispute, that the Manulife Policy, at issue, has been in existence for aimosttwenty years, during which time the parties have concluded five or six Collective Agreements. During this period, the STD and Long Term Disability ("LTD") plans have not changed. Nor has the Union, prior to the present hearing, raised any allegation that the policy was discriminatory. Nothing in the wording of the grievances, the Hospital maintained, hinted at the true nature of the Union's allegations. in fact, the Hospital said itwas not made aware that the Union was raising an allegation that the Manulife Insurance Plan was discriminatory until a few weeks before the first day scheduled for the arbitration of the four grievances. JURISDIGTION UNDER ARTICLE 17.00 OF THE COLLECTIVE AGREEMENT The Hospital submitted that I have no jurisdiction, under the Collective Agreement, to determine whether any employee, including the Grievors, is entitled to benefits under an insurance policy drafted, interpreted and applied by Manulife. Drawing my attention to article 17.02 of the Collective Agreement, the Hospital noted that the 28 days of yearly sick leave, to which each employee is entitled, is funded 100% by the Hospital, which is the sole adjudicator of these claims. All employees are entitled to, and have recourse to the 28 days of sick leave if they suffer from an illness or a disability. As such, simple illness entitles each employee to draw on his or her sick leave. Unlike Manulife, the Hospital, in orderto grant and pay for sick leave, does not have to determine whether an employee is suffering from a disability. -8 - According to the Hospital, Article17.02 further provides that if an employee who has exhausted his 28 days of sick and continues to suffer from a disability is entitled to 17 weeks of STD, to cover absences due to the continuing disability. However, unlike the sick leave provisions of article 17.02, in order to qualify for STD, an employee must establish that he or she suffers from a disability under the plan provided by Manulife. As such it is Manulife, and not the Hospital, who determines eligibility. The Hospital maintained that its only obligation under the provisions of the STD provisions of the Collective Agreement is to purchase an Insurance Plan to cover STD and to pay 100% of the billed premiums to the Insurer. Once that has been accomplished, the Hospital does not determine who is eligible to receive STD, nor does it pay the eligible benefits under the Plan. That task falls to Manulife, which is the sole administrator and decision maker under the Plan, once the plan is in place. The Hospital's role is merely to facilitate the process by supplying the employees with the requisite forms. Therefore, it was the Hospital's position that to find, either specifically that the Hospital is responsible to pay the STD benefits, or alternatively that because the policy is discriminatory and as such, the Hospital is responsible to pay the STD benefits, would be tantamount to altering or modifying the Collective Agreement. There is an abundance of case law, the Hospital submitted, that deals with the question of whether insurance policies are incorporated into a Collective Agreement. According to the Hospital, arbitrators when asked to deal with disputes concerning insurance policies have generally found that such policies fall into four categories. - The Hospital referred to a decision by Arbitrator Simms in Re Telus Communications Inc. v. Telecommunications Workers Union (Kelfie Grievance) (2008) 176 -LAC (4th) 316, ("Telus Communications Inc. Number T) where the learned Arbitrator sets out the four categories in the following way: 0 1. A plan or policy not mentioned in the Collective Agreement. 2. A Collective Agreement which specifically provides for the payment of benefits in certain circumstances. 3. A Collective Agreement which provides only for the payment of premiums for an insurance plan. 4. A policy or insurance document incorporated by reference into the Collective Agreement. It was the Hospital's position that both arbitrators and the courts have consistently ruled that disputes concerning insurance plans that fail under category three are not arbitrable under a collective agreement. Considering that the Collective Agreement before me merely obligates the Hospital to purchase an insurance plan and to pay the premiums, it was the position of the Hospital that the Manulife plan is a classic category 3 plan and disputes concerning its administration are not arbitrable. The Hospital submitted that in the absence of express language which would support the notion that the Manulife Plan has been incorporated by reference into the Collective Agreement, I have no other option but to find that I do not have jurisdiction, under the Collective Agreement, to determine whether the Hospital is liable to pay STD to the Grievors or any other,employee, for that matter. Rather, the Hospital argued, the proper remedy is for the Grievors to pursue a claim directly against the Insurance Company. The Hospital further submitted that arbitrators have consistently held that to conclude that insurance plans are incorporated into the Collective Agreements would require express language to that effect. As Arbitrator Marcotte in Re Thunder Bay (City) v. International Brotherhood ofElectrical Workers, Loca1339 (Maepea Grievance), [19971 O. L.A.A. No. 48. ("Thunder Bay UV) concluded, language which simply identifies the existence of an insurance plan or expresses the amount and time of benefits which would flow to an -1 -0 - eligible employee, or which refers to the existence of a dOCument or booklet, concerning the content of the plan are not sufficient to clothe an arbitrator with jurisdiction. Finally, in support of its first preliminary issue the Hospital also relied on the following cases: Re Telecommunications Workers Union v. Telus Communications Inc., 120101 B.C.J. No. 999 (Harris) ("Telecommunication Workers') ; Re Windsor Regional Hospital and Service Employees' Union Local 210 (Boyce Grievance), [1999] O.L.A.A. No. 340 (Williamson) ('Windsor Regional Hospital'); Re Elkview Coal Corp. v. United Steel Workers of America, Local Union No. 9346, 2001 BCCA 488 ("Elkview'); Re Niagara (Regional Municipality) and Ontario Nurses' Assn. (Dan Grievance) (2011), 207 L.A.C. (4th) 423 (Slotnick) ("Niagara (Regional Municipa#V). ,JURISDICTION UNDER ARTICLE 5 OF THE COLLECTIVE AGREEMENT AND THE HUMAN RIGHTS CODE It was the Hospital's submission that an arbitrator does not have jurisdiction to determine whether the benefit policy, solely administered by Manulife, is discriminatory. For article 5.02 [the non-discrimination clause] to apply in this case, the Hospital argued, evidence of an act on the part of the Hospital, would be required to show that it discriminated against an employee. The evidence is that the Hospital negotiated with the Union and, as a result, obtained a standard insurance policy with a total disability definition, not drafted by the Hospital.' Moreover, the Hospital exercises no control obi" how the policy is to be applied or interpreted. The case law, the Hospital submitted and in particular, the well -reasoned decision of the British Columbia Court of Appeal ("BCCA") in Elkview, makes it abundantly clear that insurance companies are not agents of employers. Therefore, the Hospital cannot be held liable for the actions or inactions of Manulife. if Manulife is found to have discriminated against employees, then it and not the Hospital, is responsible for resolving that situation. -11 - The Hospital reminded me that the definition of "totally disabled" in the Manulife policy has existed for twenty years, without challenge. Therefore, it asked how can the Union argue that it had no pari: in the formulation of the benefits throughout that period. The Union could easily have raised the issue during any one of the five or six.rounds of negotiations, prior to the filing of the grievance. Given that the Hospital did not draft, interpret or apply the insurance policy, the proper forum to deal with the Union's allegations is not at arbitration but in a civil or human rights complaint against Manulife, which, the Hospital argued, is precisely what the BCCA found in the Elkview case. Finally, the Hospital submitted that in Re Canadian Telephone Employees'Assn. and Bell Canada (Lee Grievance) (1994), 43 L.A.C. (4th) 172 (MacDowell), and Re Canadian Broadcasting Corp, v. Canadian Media Guild, Local 293 (Chabot Grievance) (1995), 45 L.A.C. (4th) 353 (Munroe) both arbitrators, having found that the insurance plans were discriminatory, lacked remedial powers to grant nothing more than a declaration directing the employer to fix the problem: The arbitrators, according to the Hospital, waffled on the remedy because they lacked jurisdiction over a third party insurer. These awards, the Hospital submitted, clearly lend support to its argument that arbitration is not the proper forum to deal with issues concerning insurance policies. THE TIMELINESS OF MS. J.OMPHE'S GRIEVANCE The facts on which the Hospital relied on to support its third argument are as follows: On February 19, 2013, Ms. Jomphe sent an email to her Manager, Mary Beth Colton informing her that she wished to lodge a complaint under Article 10.03 (a) of the Collective Agreement- because her (Ms_ Jomphe's) appeal to Manulife for STD had been denied. A complaint under Article 10.03 (a) is a mandatory step under the Collective Agreement which must occur prior to filing a grievance. Ms_ Colton replied to Ms. Jomphe by email on February 25, 2013, thanking her for. the-romplaint and confirming that Manulife. STD -12 - support is only provided to employees who meet the definition of total disability. Ms. Colton also advised Ms. Jomphe, in her email, that if she had further concerns, to follow up with Occupational Health or Labour Relations. The Union fled a grievance on Ms. Jomphe's behalf on April 3, 2013. The Hospital, relying on Article 10.03 (a) of the Collective Agreement, argued that Ms. Jomphe had nine (9) days from the date of Ms_ Colton's reply to her complaint to file her grievance. That deadline, the Hospital maintained, expired on March 6, 2613. However, Ms. Jomphe's grievance was not filed until April 3, 2013 and with the absence of any reasonable explanation for the delay, the grievance must be deemed to be abandoned. Further, in the absence of an explanation for the late ding, I am prevented from exercising my discretion to extend the time limits under S.48(16) of the Labour Relations Act, 9995. In the result, the grievance must be dismissed. In support of its argument that Ms. Jomphe's grievance should be dismissed for being untimely, the Hospital relied on the following two cases: Re Collingwood General and Marine Hospital v. Ontario Nurses Association (Coleman grievance), [2010] O.L.L.A. No. 528 (Slotnick); Re Standard Products (Canada) Ltd..v. National Automobile, Aerospace, Transportation and General Workers Union- of Canada (CAW -Canada), Local 4459 (Stratton grievance) (1998), 70 L.A.C. (4th) 21 (Davie). UNION ARGUMENT The Union's argument simply stated is that the issues to be decided are not whether an individual is entitled to benefits under the STD plan at a specific time, but whether or not the Manulife Insurance Policy is inconsistent with the Human Rights Code and whether or not it is in compliance with the terms of the Collective Agreement_ According to the Union, the Hospital is seeking answers to questions that are not being asked.. -13 - JURISDICTION UNDER ARTICLE 5 OF THE COLLECTIVE AGREEMENT AND THE HUMAN RIGHTS CODE Whether the insurance policy falls into category 3 or is a hybrid of more than one of the recognized arbitral categories of insurance policies is a matter of no consequence, according to the Union, because ever since Arbitrator Burkett's decision in Re O.N.A. and O.N.A. Staff Union (1989), 5 L.A.C. (4th) 181('ONA'), the jurisprudence is clear that arbitrators have jurisdiction to. determine if an insurance policy is consistent with the Collective Agreement and the Human Rights Code. The Union took issue with the Hospital's position that its only obligation was to obtain an insurance policy and once that was accomplished, it had fulfilled its obligation under the Collective Agreement. "What if," the Union asked, "the policy, which the Hospital purchased, stated that the benefits will not be provided to certain ethnic groups? Would the Hospital's position be the same?" The Hospital, the Union maintained, cannot obtain any policy it wishes. Accordingly, the debate over whether or not the definition of totally disabled is a standard definition in the industry, goes to the merits of the case and not the arbitrator's jurisdiction to hear the issue. The Union reminded me that the Eikview decision pre -dated the Supreme Court of Canada's decision in Re Parry Sbund (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), 12003] 2 S.G.R. 157 ('Parry Sound'). In the Parry Sound case, the Union submitted, the Supreme Court confirmed than an alleged violation of the Human Rights Code constitutes an alleged violation of the Collective Agreement and fell squarely within an arbitration board's jurisdiction_ -14 - Further, the Union reminded me that the Collective Agreement under consideration in Elkview did not contain a non-discrimination clause. In support of its argumentthat I have jurisdiction to determine if the Manulife Policyviolates the Human Rights Code, the Union relied on the following text and cases: D.J. Brown and D.M. Beatty, (Canadian Labour Arbitration, 41 ed); (Aurora: Canada Law Book Inc. LooseleaorBrown and BeatV); Re Renfrew (County) v. Ontario Nurses' Assn. (Fox Grievance), [2012] O. L.A.A.. No. 57 (Slotnick) ("Renfrew County); Re Crysler Canada Ltd and C.A.W., (1996), 57 L.A.C. (4th) 81 (Kennedy) ("Crysler Canada'); Re Canadian Telephone Employees'Assn., supra; Re Canadian Broadcasting Corp. supra; Re Canada Safeway Ltd. and U.F. C. W., Loc. 401 (Panel -Schuller), (1996), 59 L.A.C. (4th) 405 (Moreau) ("Canada Safewayl; Re Kenora Assn. For Community Living v. Ontario Public Service Employees Union, Local 702 (Harasemchuk Grievance), [2003] O.L.A.A. No. 295 (Roberts) ("Kenora Assn.'); Re Telus Communications Inc. v. Telecommunicafion's Workers Union, [2009] C.L.A.D. No. 40 (Sims). ("Teles Communications Inc. Number 2). JURISDICTION UNDER ARTICLE 17 OF THE COLLECTIVE AGREEMENT The Union referred to the Supreme Court of Canada Decision in Bisar"lloR-and Concordia University, [2006] 1. S.C.R. 666 ("Bisalllonj arguing that Bisaillon and the jurisprudence which followed, clearly stand for the principle that I have jurisdiction to determine if tate insurance policy complies with the Collective Agreement. The Union conceded that I may decide, at the end of the day, that the policy is in compliance with the Collective Agreement but reminded me that that is not the question that I am presently being asked to determine. Accordingly, itwas the Union's position that the Hospital's argument on what remedy may, or for that matter may not be granted is premature. The remedy, the Union argued, will, if at all, be dealt with after the determination on the issue of whether or not I have jurisdiction to hear the merits of the case. 0 -15- In support of its position that 1 have jurisdiction to determine if the insurance policy complies with the Collective Agreement, the Union also relied on the following cases; Re Sault Area Hospital v. Ontario Nurses' Assn. (Siesel Grievance) (2012), 219 L.A.C. (4th) 105 (Steinberg) ("Sault Area Hospital'); Re Atlas Copco Exploration Products v. International Assn df Machinist and Aerospace Workers, Local 2492 (Pension Plan Grievance) (2008), 179 L -A -C. (4th) 406 (Brown) ("Atlas Copco'); Re Telus Communications Inc. v. Telecommunications Workers Union (Variable Pay, Grievance # 2009-085),12011 ] C.L.A.D. No 26 (Germaine) ("Telus Communications Inc. Number 3). THE TIMELINESS OF MS. JOMPHE'S GRIEVANCE On the issue of the timeliness of Ms. Jomphe's grievance, it was the Union's position that her grievance constitutes an ongoing violation of the Collective Agreement. In other words, a continuing grievance is one which arbitrators have consistently found does not obligate the Grievor to file a grievance each and every time there is a violation of the Collective Agreement. In support of this argument, the Union relied on Brown & Beatty. HOSPITAL'S REPLY ARGUMENT The Hospital agreed that it has an obligation to act in accordance with the Human Rights Code. However, it maintained that it did not have control overthe drafting of the insurance policy, nor the definition in that policy of the term "totally disabled". In any event, the Hospital submitted, the definition of "totally disabled" in the policy is an industry standard definition which is contained in an industry standard policy which, as a result of collective bargaining, the Hospital purchased_ According to the Hospital, the case law relied on by the Union, illustrates a clear disconnect between labour law principles and. the basic principles of Insurance Law. As such, the } -16- Hospital urged me to rely on the reasoning in Elkview as that case clearly follows Insurance Law Principles. Finally, the Hospital reiterated its submission that I do not have jurisdiction to determine if a policy drafted by a third party to the Collective Agreement is discriminatory. DECISION The Collective Agreement clearly provides that an STD plan will be made available to a full-time employee or permanent part-time employee after her 28 days of sick leave have been depleted, as long as the employee continues to be disabled. The Collective Agreement further provides that the STD plan is insured by an insurance company, in this case Manulife, and will continue for a 17 week period which is inclusive of the 28 days of sick leave. Under the provisions of Article 17, the Hospital is obliged to pay 100% of the billed premium to Manulife for the coverage of STD. This obligation to pay premiums decreases when the STD is discontinued after the 17 week period has expired and Long Term Disability (LTD) is triggered. In considering the Collective Agreement language, I am of the view that the Hospital's only obligations are to contract with an insurance company (Manulife) and to pay the premiums for said coverage. Further, it is clear that the Hospital's role is not to determine who qualifies for STD coverage, nor is it obliged to make any payments directly to the disabled employees. Both are Manuliife's responsibility. THE HOSPITAL'S ISSUE # 2 - WHETHER l HAVE JURISDICTION UNDER ARTICLE 5 OF THE COLLECTIVE AGREEMENT AND THE HUMAN RIGHTS CODE The jurisprudence with respect to insurance policies contained in collective agreements is summarized by the authors of Brown and Beatty in the following passage at paragraph 4:1400: -17 - Pension, insurance and welfare plans are types of extrinsic documents or agreements which are commonly found physically separate from collective agreements. Whether they form part of the agreement or are otherwise relevant as aids to interpretation depends upon the surrounding circumstances, together with the specific language used in the collective agreement. Commonly, the relationship between such ancillary documents and the collective agreement will fall into one of four categories. In one, the plan or policy is not, mentioned in the agreement. In the second, the collective agreement specifically provides for certain benefits, while in the third it only provides for the payment of premiums. In the last, specific plans or policies are incorporated by reference into the agreement. Where the collective agreement contemplates that the employerwill arrange and pay the premium for an insurance policy and also provides for the benefits in varying degrees of detail, disputes can arise as to whether the arrangement falls within the second category, in which case grievances over the benefits will be arbitrable. Alternatively, it may be asserted that the parties contemplated that the arrangement fell within the third category, in which case the dispute is not arbitrable. In some such cases, the collective agreement provisions in question have been labelled "hybrid". For ease of reference, I will henceforth refer to the four categories of insurance policies as the Brown and Beatty categories_ Applying then the principles enunciated in Brown and Beatty, to the Manulife Plan, I conclude that it falls squarely within the four corners of Brown and Beatty's category 3, thus rendering any grievance concerning its administration to be inarbitrable. Myconclusion of inarbitrabilty is similar to.that reached by Arbitrator Williamson in Windsor Regional hospital. In that case, the Employee took the position that the issue of the Grievor's eligibility for long-term disability benefits was not arbitrable as its only obligation under the Collective Agreement was to provide a long-term disability plan for the employees. -18 - The decision contains an in-depth analysis of the generally recognized four Brown and Beatty categories of ancillary documents to a Collective, including insurance policies. The arbitrator determined that the insurance policy referred to between the parties in the Collective Agreement fell into the third category, which category of insurance policy does not form part of the Collective Agreement_ Therefore, he found that he was unable to hear a grievance relating to the insurer's denial of long- term disability benefits under the policy. Turning to the Elkview decision, the issue in that case was whether an employee was entitled to enrol a common law spouse to receive coverage under a Health and Benefits package, negotiated under the Collective Agreement. Under that Collective Agreement, the Employer's obligation was to pay the premiums for the insurance coverage for the union members. In order to comply with its obligations, the Employer, contracted with Great West Life Assurance. The Great West Life plan defined a common law spouse to be a person of the opposite gender_ Itwas the Unions position, in Flkview, that the definition of common law spouse, contained in the plan, contravened the British Columbia Human Rights Code, thus rendering the benefits void as being discriminatory. The Employer's position was that the dispute was between the Union and the Insurance Carrier and if the policy was to be challenged, the proper forum was before the Courts and not before an arbitrator. At arbitration, the arbitrator found that he had jurisdiction to apply human rights legislation to determine whether the insurance plan was in contravention of that legislation. The Employer, after applying unsuccessfully for judicial review before the British Columbia Labour Relations Board, brought the case before the BCCA. At paragraph 20 of its decision the BCCA set out the issues in the following manner: The tasks in the case at bar, therefore, are to define the essential character -19 - of the dispute raised by the employee and to consider the ambit of the Collective Agreement. Once those two matters have been defined, the question to be answered is "whether the dispute in its essential character, arises from the interpretation, application, administration or violation of the Collective Agreement" Further, at paragraph 21 the Court stated what in its view was the essential character of the dispute: The essential character of this dispute is to be seen from the Union's allegations. It says the definition of common law spouse in the insurance policy is discriminatory, and contravenes the Human Rights Code. It seeks a declaration that the definition of common law spouse in the policy, and the application of that definition, are discriminatory. And it seeks an order against the employer that it compel the insurer to amend the definition of common law spouse to make it comply with the terms of the Human Rights Code. In the BCCA's view, nothing in the allegation of the Union nor in the remedy sought related to the Collective Agreement or a breach of its terms. Rather, the Court found that the definition of common law spouse was a term of the insurance policy, a term agreed to be "standard" in the industry, and expressed in the language of the Insurer's choosing. In the case before me, the Hospital takes a similar position; that the definition of "totally disabled" in the Manulife Plan is a standard definition used in the insurance industry over which the Hospital has no control. As the BCCA in Elkview noted, and as the Hospital has argued before me, the Employer had nothing to do with the drafting or settling of the language of the insurance policy. In detennining that the Union's real dispute was with the Insurance Company and not the Employer, the BCCA found that the arbitrator erred in describing the dispute as `Whether the ---- benefits required to be provided by the Employer under the Collective Agreement, and which. are affected by the definition of common law spouse are void as being discriminatory." -24 - Rather, in rejecting the approach taken by the arbitrator, the BCCA characterized the issue concerning the benefits in these words: Benefits cannot be said to be "void". They are either payable or not payable, depending on the true interpretation of the document under which they are provided for. What may, or may not, be "void" is the language of the insurance R_ghts Code. In,posi g the question as hand the provisions arbitratoroconfu Human if it Gan be ntooff p..,ovision .. e did theo d the employer's obligation under the Collective Agreement, with the insurer's obligation under the policy. (Emphasis added) By stating that the language of the insurance policy may or may not be void if it can be shown to offend the Human Rights Code, I am of the opinion that the BCCA did not shut the door completely on an arbitration's jurisdiction to determine whether an insurance plan is discriminatory provided he asks himself the correct question. Of equal importance is that the BCCA decision in Elkview was rendered in 1997 and the debate on the issue did not end there. Rather, from the time of the Elkview award until the present, the debate on this issue has flourished. } In Niagara Regional Municipality, a decision relied on by the Hospital in support of its submissions, Arbitrator Slotnick made the observation that the issue, concerning the categories of insurance policies under collective agreements, has had a long history in labour arbitration and concluded that, after much debate to and fro, by various arbitrators, it is now [in 2011] well settled once again that the four categories [the Brown and Beatty categories] of insurance benefit language are alive and well. Turning to the consideration of that award and notwithstanding that Arbitrator Slotnick found that the insurance plan was a Brown and Beatty third category and therefore, not arbitrable, he did not end his analysis there. -21 - In considering Arbitrator Moreau's decision in Canada Safeway, Arbitrator Slotnick noted that the arbitrator allowed the hearing to proceed because there was an allegation that the PI an was being administered in a manner that conflicted with human rights legislation covering pregnancy leave. Arbitrator Slotnick then set outwhat I will categorize as a glimpse of his views on where the law on this issue was leading: The Safeway decision refers to a case with an even clearer example — Re Canadian Broadcasting Corp. and Canadian Media Guild (1995) 45 L.A.C. (4th) 353 (Munroe), ("Canadian Broadcasting Corporation'), where the employer provided a benefit plan that excluded same-sex spouses. In both these cases, it appears, the arbitrators allowed the grievances to proceed based on a finding that the plan provided by the employer may itself have violated the collective agreement's prohibition against discrimination. That is different from the situation here, where the grievoes allegation, as I understand it, is not that the employer has provided a long-term disability plan that is discriminatory by nature, but only that she has been discriminated against by being denied benefits by the insurer. In the absence of any allegation connecting the employer to any discriminatory conduct, this case is in my view distinguishable from Safeway and similar cases. For these reasons, my conclusion is that unless the employer has arranged a long-term disability plan that is itself discriminatory (for example, by excluding members of an identifiable group), grievances concerning denial of benefits are inarbitrable underthis collective agreement, and the denial of benefits must be pursued against the insurer directly. In the case before me, the essence of the Union's argument, is precisely what Arbitrator Slotnick considered in Niagara Regional Municipality, that an arbitrator has jurisdiction to determine if an insurance policy, in and of itself, is discriminatory. If then I understand the Union's argument correctly, it does not argue that the Grievors were treated in a discriminatory fashion in the manner in which the benefits were denied. Nor is the Union alleging that anyone from tl;e Hospital acted in a discriminatory manner -22 - towards the Grievors. Rather, the Union's allegation is that the Hospital has arranged an STD plan with Manulife that is discriminatory by excluding the Grievors from receiving benefits because they are members of an identifiable group as defined in the Human Rights Code. At this point, I find it useful to return to Brown and Beatty for their continuing guidance on this issue. After concluding that there are four distinct categories of insurance plans and that grievances dealing with the administration of category 3 plans have been determined consistently by arbitrators to be inarbitrable they make the following observations: However, a lack of reference to benefit plans in the collective agreement may not insulate their application from arbitral review. Such a review may result indirectly from the application of other provisions of the agreement such as, for example, where the agreement contains a general "no discrimination" provision or where an estoppel may be created through representations made at the bargaining table_ As well, even where the obligation is met by provision of benefits through a pian which is in accordance with the agreement, the administration of a plan may also be subjectto arbitral review as discriminatory and unauthorized by the collective agreement itself. Given the foregoing, I return to the reasoning of Arbitrator Slotnick and what I properly consider as the arbitral law as reflected today. A year after his decision in Niagara Regional Municipality, Arbitrator Slotnick again had the opportunity to revisit the same issue in Renfrew County. In that case the Grievor challenged the denial of the extended health benefit coverage for her 11 -year-old son, who had Down Syndrome. The Employer objected to the arbitrator's jurisdiction on the basis that the grievance concerned the administration of the benefit by the third party insurer. While he agreed with the employer's position that the extended health care policy was a Brown and Beatty Category 3 plan, Arbitrator Slotnick nevertheless assumed jurisdiction because the allegation, by the Union, was that the plan itself was discriminatory by nature. -23 - His views are set out in the following passage: However, as the bulk of the case makes clear, even in the Category 3 cases, there is a residual jurisdiction for the arbitrator where there is a question as to whether the plan arranged by the employer is discriminatory by nature. This was the conclusion of the arbitrator in the Canadian Broadcasting Corp. case cited above, which concerned a plan that did not provide benefits to same-sex spouses, and the same conclusion was reached in the Safeway case, dealing with an allegation of discriminatory treatment of pregnant employees, where the arbitration board stated (at page 425): In light of the express no -discrimination clause, it is our view that our jurisdiction is not limited onlyto whetherthe collective agreementwas applied in a discriminatory. manner. Our jurisdiction also encompasses the determination of whether the plan administrator, in exercising its functions to determine eligibility for weekly indemnity benefits, did so in a manner which was non-discriminatory and consistent with human rights laws and principles.._ Even in some cases where arbitrators have refused jurisdiction, they have allowed forthe possibilitythat in Category 3 situations, the case may properly belong before an arbitrator if it deals with an allegation thatthe employer has not fulfilled its human rights obligations in arranging for a benefits plan, (see the Niagara and Ontario LiguorBoard Employees' (Inion cases cited above,) or if the policy may not be a standard one (see Re Sault Area Hospital and ONA (2012) 219 L A.C. (4th) 105 (Steinberg).) Based on the foregoing, I am of the opinion that the arbitral law in Ontario today is that despite a finding that an Insurance Plan is a Brown and Beatty category 3, which would render grievances concerning its application inarbitrable, if there is an allegation that the plan, by its very nature, is discriminatory, I am of the view that an arbitrator has jurisdiction to make that determination. Moreover, I am satisfied that my conclusion is indeed consistent with the BCCA's decision in Elkview where the Court clearly stated that the language of the insurance policy may be "void" if it can be shown to offend the provisions of the Human Rights Code. -24 - Paraphrasing its finding, the Court was simply stating that language such as the definition of, for example, the term "totally disabled", would be void if found to be discriminatory and an arbitrator would have jurisdiction to order it fixed. This is precisely what I understand to be what the Union would ask, if successful on the merits of the case. Turning nowto the Hospital's argument that I should decline jurisdiction in view of the fact that if I were to assume jurisdiction and eventually determine that the plan was discriminatory, I would be left without an appropriate remedy to rectify the problem. I am not in disagreement with the Hospital's position, based on the examples provided, that arbitrators, on finding an insurance plan to be discriminatory, may well be reluctant to order nothing more than that the employer fix the problem_ I would say however, that at this juncture, submissions concerning the form any remedy may take is premature. Again the issue, at this stage in the proceedings; is whether I have jurisdiction to hear the merits of the case. If I were to assume jurisdiction and ultimately determine thatthe Union did not discharge its onus, the argument on remedy would be moot. From the outset the Hospital maintained that the proper forum to deal with complaints alleging discrimination is before a Human Rights Tribunal and not before an arbitrator. It is well established that arbitrators have jurisdiction to interpret Human Rights legislation, when matters related thereto are argued before them. Further, Section 48(12)(j) of the Labour Relations Act authorizes arbitrators to interpret human rights and other labour -related statutes. If any doubt remained that an arbitrator was not empowered to so do, that doubt was clearly dispelled by the ruling of the Supreme Court of Canada in Parry Sound. - -25 - In Parry Sound, the Grievorwas discharged during his probationary period. The Collective Agreement provision in question ostensibly prevented the Union from filing a grievance where a member is rejected on probation_ "a probationary employee may be discharged 'at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties." Not surprisingly, the Employer in Parry Sound, took the position that the Arbitration Board lacked jurisdiction because of the wording of this clause. The majority of the Board of Arbitration found that s.48(12)(j) of the Ontario Labour Relations Act, permitted them to consider the Human Rights Code when interpreting the Collective Agreement to ensure that its provisions were in compliance with the Human Rights Code. Moreover, even in the absence of the inclusion of a non-discriminatory clause, the arbitration board determined that it did have the power based on the provisions of the Human Rights Code, to consider whether discrimination was a factor in the Grievor's discharge_ The Ontario Divisional Court granted the Employer's application for judicial review. However, the Ontario Court of Appeal set aside the Divisional Court's decision. The Employer appealed to the Supreme Court of Ganada. In the course of its decision, the Supreme Court discussed the issue of whether matters pertaining to allegations of human rights abuse fie properly within the jurisdiction of a Human Rights Tribunal and not with an arbitrator. Justice lacobucci, speaking for the court, noted: In respect of policy considerations, I first note that granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes advances the stated purposes of the Labour Relations Act, which include promoting the expeditious resolution of -26 - workplace disputes. As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of -fundamental importance, both to the parties and to society as a whole. See for example Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, at p. 781; Blanchard v. Control Data Canada Ltd, [9984] 2 S.C.R. 476, at p. 489; and Toronto Board of Education, supra, at para_ 36. It is essential that there exist a means of providing speedy decisions by experts in the field who are sensitive to the vv.Ewkplace envifonment; and which can be considered by both sides to be final and binding. He continued at paragraph 52-- Granting 2: Granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes has the additional advantage of bolstering human rights protection. MajorJ. correctly observes that if the dispute is non -arbitrable, aggrieved employees have available the same mechanism for enforcing fundamental human rights as any other member of society: they may file a complaint before the Human Rights Commission. But the fact that there already exists a forum for the resolution of. human rights disputes does not mean that granting arbitrators the authority to enforce the substantive rights and obligations of the Human Rights Code does not further bolster human rights protection. As discussed above, grievance arbitration has the advantage of both accessibility and expertise. It is a reasonable assumption that the availability of an accessible and inexpensive forum for the resolution of human rights disputes WHI increase the ability of aggrieved employees to assert their rights to equal treatment without discrimination, and that this, in turn, will encourage compliance with the Human Rights Code. Therefore, Parry Sound has clearly settled that question that arbitrators do have jurisdiction to deal with human rights issues raised in the course of 'a grievance arbitration. An arbitrator's jurisdiction to deal with human rights issues is not usurped because of the existence of a Human Rights Tribunals. THE HOSPITAL'S ISSUE # 1 - WHETHER 1 HAVE JURISDICTfON UNDER ARTICLE 97.00 OFTHECOLLECTIVE AGREEMENT Turning now to the Hospital's objection to my jurisdiction to determine whether or not the } -27- Manulife Insurance Plan is contrary to the provisions of the Collective Agreement, let me begin by stating that I am not in agreement with the Union's submission that ever since the decision of Arbitrator Burkett in the ONA case in 1989, it is clear that arbitrators have jurisdiction to determine if insurance policies are in compliance with the Collective Agreement. In fact, I do not find the decision in ONA to be of assistance in my deliberations for the following reasons. First, in ONA the Employer did not dispute the Board's jurisdiction to hear the issue. Therefore the arbitrator did not have the opportunity to weigh the pros and cons of a jurisdictional argument. Second, it is clear from a reading of his decision, that Arbitrator Burkett did not have the opportunity to consider the four Brown and Beatty categories of insurance policies, nor did he make any findings relating thereto. Furthermore, in Re Canadian Broadcasting Corp. v Burkett et al (1997), 155 D.L.R. (4th) 159 ("C.B. C.') the Ontario Court of Appeal reviewed and set aside a decision of Arbitrator Burnett, in which he found that he had jurisdiction under the Collective Agreement to hear a grievance concerning the application of an insurance plan_ The award concerned a grievance filed by the Union contesting an insurer's decision to deny the Grievoes estate's claim for a death benefit, because the insurer ruled that the Grievor was not "actively employed" at the time of his death_ The Employer, at arbitration, argued.that the duty to pay the insurance benefits was the responsibility of the insurer and not the Employer. The real dispute, the Employer argued, was not between the union and the employer but between the union and the insurance company. The Employer argued that the insurance company's decision of refusing to recognize the Grievor as an employee at the time of his death was a matter properly before the courts as opposed to giving rise to a grievance. F -28- The union took the position that the failure to pay the death benefits constituted a violation of the Collective Agreement. Unlike in ONA, in C.B.C. Arbitrator Burkett had the opportunity to consider the four categories of insurance policies. Notwithstanding the fact that he found that the Employer's only obligation was to pay the premiums and to arrange for the required coverage, a classic category 3 insurance plan, he determined that, on the facts established, the Employer, as the party providing the coverage, had an onus to prove that the coverage conformed with the provisions of the Collective Agreement. He further ordered the Employer to pay benefits to the employee's estate. In determining that arbitrator Burkett's decision was patently unreasonable, the Ontario Court of Appeal commented as follows: The evidence showed that the premiums were paid by the C.B.C. and that standard group life insurance coverage was arranged_ The terms of the insurance policy were before the arbitrator. There was no suggestion by the union that the provisions of the policy were not standard ones_ Nor was the allegation made that the coverage provided was inconsistent with the coverage agreed to. Since the arbitrator concluded that Article 54 represented a "type three obligation, evidenceof this payment and coverage discharges the employee's obligations under the collective agreement. The arbitrator could not simply ignore this evidence and impose upon C_B.C. a requirement to pay the benefits, an obligation it was not contractually obliged to provide. His decision to do so was, with respect, patently unreasonable. In further support of its position that I have jurisdiction to determine if the Manulife Plan is in compliance with the Collective Agreement, the Union relied on the Supreme Court of Canada's decision in Bisaillon. However, following a careful review of the Bisaillon award, I do not find it to be helpful to the Union's case. Nor do I find that Bisaillon lends any assistance to me in my -29 - deliberations, considering that the facts in Bisalllon, are clearly distinguishable from those in the instant case. The issue in Bisaillon concerned a pension plan established by Concordia University for its employees. What distinguishes Blsaillon from the circumstances of the instant case is aptly set out in the following passages at paragraphs 53, 54 and 55 where the Supreme Court refers to and examines the applicable article of the Collective Agreement: As for the collective agreement applicable to Mr. Bisaillon at the time the judge heard the application, it provided as follows: Pension Plan (a) The Employer agrees to maintain the Pension Plan current in use for employees at the coverage and benefit levels under the terms end conditions set by the Pension Committee and the Board of Governors. [Emphasis added.] In these provisions, Concordia made a commitment to the unions to offerthe Pension Plan to the employees covered by the agreements in accordance With the conditions of the plan. The unions thus obtained certain assurances with respect to the maintenance of the plan and the eligibility of the employees they represented_ In effect, the partes decided to incorporate the conditions for applying the Pension Plan into the collective agreement. In this context, the employer was not in the position of a third person, such as an insurer providing insurance benefits proposed by the pasties to the collective agreement. On the contrary, Concordia appeared to retain effective control overthe administration ofthe Pension flan while committing itself, at least implicitly, to respect and furl various rights and obligations provided for in the plan or arising out of the legislation applicable to it. In so doing, it also recognized the in personam and subject -matter jurisdiction of the grievance arbitrator. This is not a case that would justify the Superior Court in exercising its exceptional residual jurisdiction_ If the respondent's allegations proved to have merit, the grievance arbitrator would have the necessary jurisdiction in a grievance proceeding to declare the employer's decisions to be null, and to decide on an appropriate remedy. Accordingly, the Superior Court did not err in declaring that it lacked jurisdiction to hear the case on the basis that -30 - the grievance arbitrator had exclusive jurisdiction in the matter. In contrast to the facts in the case before me, the Supreme Court in Bisaillon found that Concordia was not in a position of a third party and appeared to obtain effective control overthe Pension Plan. In fact, the Collective Agreement clearly stated that the coverage and benefits levels were set by the Pension Committee and the Board of Govemers [of Concordia] . Manulife and not the Hospital is the third parr/ insurer in the instant case, and Manulife has complete care and control of the plan_ In Telus Communications Inc_ Number 9, Arbitrator Simms, had the opportunityto consider the Bisaillon decision, and its application to the facts before him. The grievor in Telus was denied benefits for LTD by the insurer and after an unsuccessful attempt to appeal the decision, fled a grievance. The Employer objected to the arbitrator's jurisdiction to deal with the claim. In his decision, Arbitrator Simms referred to the decision of Arbitrator Christie in C.A.W Local 1015 v. Scotsbum Dairy Group 120081 N.S.L.A.A.I. (C.A.W.) Arbitrator Simms observed that when the issue of whether Bisaillon had changed the law was put to Arbitrator Christie, he concluded as follows: Having noted that the Supreme Court in Bisaillon does not even mention Pilon and Dubreuil, cited below, counsel for the Employer states: Bearing in mind that the interpretation of a collective agreement with regard to referential incorporation remains a matter of assessing the parties' intentions, in context, assists in providing a far more reasonable reading of Bisaillon than one which has a majority of the Supreme Court of Canada, out of a clear blue sky, overwriting decades of relatively certain arbitral jurisprudence in common law jurisdictions, and in the process effectively rewriting untold numbers of collective agreements, without even mentioning the issue. I accept, of course, that whether or not a collective agreement is to be interpreted as incorporating an external document, is, like other exercises in the interpretation of the collective agreements, at bottom a matter of -31 - attempting to give effect to the parties' apparent mutual intent. I do not, however, see Bisaillon as a case in which the majority of the Supreme Court has overwritten "decades of relatively certain arbitral jurisprudence in common law jurisdictions." The line between Brown and Beatty's second category of relationships between benefit plans and collective agreements, in which "the collective agreement specifically provides for certain benefits" and the third, in which "it only provides for the payment of premiums", has often been difficult for arbitrators to drawwhere the collective agreement says something more, but farfrom everything, aboutthe benefit plan to be provided then simplythat the - employer will pay the premium. In agreeing with the above observations in Scotsbum, Arbitrator Simms stated as follows: I agree with Arbitrator Christie that Bisaillon does not shake the foundations of the Brown and Beatty approach to arbitrability of benefit entitlement claims under disability insurance policies. Indeed, my conclusion is that, if anythirig, it reinforces the analysis. I am left with the conclusion that the existing well established law continues to apply. This is a category three case and it is one where the collective agreement yields no opportunityfor me to adjudicate over the employee's right to receive benefits under the policy for his particular disability claim. Whether there remains other aspects to the grievance over which I may have jurisdiction remains to be argued. The preliminary objection on this aspect of the grievance is upheld. I endorse the findings of both Arbitrator Simms and Christie, that Bisaillon has not had an effect on the established jurisprudence in this area, nor do I find that it has any application to the facts before me. Therefore, the only question that remains is whether there is any aspectof the grievance (as Arbitrator Simms pondered) overwhich I may have jurisdiction? In this regard, I turn for guidance to the most instructive decision of Arbitrator Steinberg in Sault Area Hospital. -32 - The Grievor in Sault Area Hospital was denied benefits because she was not a resident of Canada_ The Hospital's obligation, under the Health and Welfare benefits provisions of the Collective Agreement was not dissimilar to that of the Hospital in the case before me. In both cases it was to pay the billed premiums to the plan. Arbitrator Steinberg found that the Hospital agreed to nothing more than to purchase insurance coverage and to pay the premiums. He disagreed with the Union's position that the language of the Collective Agreement incorporated by reference the various plans and therefore, was a hybrid of Brown and Beatty categories 3 and 4. On the contrary, he found that the plan was clearly a Brown and Beatty category 3. On that basis, he next considered whether he had jurisdiction to determine whether the plan was in compliance with the Collective Agreement. In dismissing the Employer's objection to his jurisdiction to determine whether the insurance policy, purchased by the Hospital was in compliance with the Collective Agreement, Arbitrator Steinberg cautioned that despite his finding, his jurisdiction was limited to very narrow grounds. In his analysis, Arbitrator Steinberg reviewed the finding of the Ontario Court of Appeal in the C.B.C. case discussed above and concluded the following: According to the Court of Appeal and subject to the precise language of the collective agreement, an employer satisfies its obligations under a provision such as Article 17 in the following manner. f=irst, by arranging a policy that provides the benefits stipulated in the collective agreement. Second, unless there is language to the contrary, the policy must have standard terms regarding entitlement and eligibility. Finally, the Employer must pay the premium costof the policy. If all three of these obligations has been satisfied then an arbitrator lacks jurisdiction regarding the denial of the benefits. -33 - Arbitrator Steinberg observed that [even when dealing with a Brown and Beatty category 3 Insurance Policy] both the Court of Appeal and the Employer [in the C.B_ C. case] acknowledged that part of the promise made by the Employer is that the insurance policies will have standard terms or terms consistent with industry practice. In such circumstances he found that an arbitrator must retain jurisdiction to determine whether the insurance policy contains the standard terms as promised by the Employer: If the Employer has failed to purchase a plan that fulfills its obligation under the collective agreement and if the Grievorwas denied coverage because of it, I do not understand how, as a matter of principle, an arbitrator is without jurisdiction to hear a grievance concerning such a failure by the Employer. Applied to this case, what if there is a term in the policies negotiated by the Employer excluding coverage for non-residents of Canada and it is demonstrated that such a term is not standard for that type of policy? I cannot think of any reason why an arbitrator would not have jurisdiction to determine such questions and to fashion an appropriate remedy. I do not see any difference between this situation and those that the Employer has acknowledged would be within the jurisdiction of an arbitrator (i.e. the deductible example referred to above). In each case, the dispute in its essential character arises directly from. the terms and conditions of the collective agreement in respect of the promise of the Employer to provide benefits. While it appears that Arbitrator Steinberg has deviated from the established arbitral thinking on the arbitrability of grievances, concerning category 3 insurance plans, he, in my view, has done nothing more than conclude that an arbitrator has jurisdiction to determine if the Employer, by agreeing to provide a policy containing standard terms in the insurance industry dealing with eligibility, has purchased a policy which contains the standard terms. Further, it is apparent that Arbitrator Steinberg retained jurisdiction solely as a result of the lack of any evidence concerning the issue of the industry standard terms. This is reflected in the following passage: -34 - The problem I face in this case is that no evidence was adduced that would permit me to decide if the'Employer fulfilled its promise to negotiate policies with standard terms and if it was pursuant to those standard terms that the decision was made to deny the Gnevor her benefits. The policies were not in evidence and no evidence was presented regarding standard terms and conditions of such policies or of the customary treatment of non-residents. Despite his decision to retain jurisdiction, the learned arbitrator left no doubt that it was limited to a narrow question: I wish to make it clear that if the matter proceeds to a hearing, it will, insofar as Article 17 (the Health and Welfare Benefits Article) benefits are concerned, only be in respect of the narrow question whether the Employer negotiated policies with standard or customary terms insofaras the eligibility for benefits of non-residents is concerned. He continued: Consistent with the jurisprudence cited above my jurisdiction under the language of this provision is to ensure that the Employer has purchased insurance consistent with its obligations. A similar conclusion was reached by Arbitrator Brown in Atlas Corp. Co. This case related to a Company pension plan which had not been incorporated into the Collective Agreement. After reviewing the jurisprudence concerning benefits plans, Arbitrator Brown concluded: My review of the authorities cited leads me to conclude the law about arbitral jurisdiction over disputes relating to a benefit plan is well settled and has been for many years. A benefit plan that is incorporated by a collective agreement becomes part of that agreement. An arbitrator has jurisdiction over all disputes arising under this sort of plan because it is no different than any other part of the agreement. This is trite law. It is also trite law that an arbitrator has no authority over disputes arising out [on a benefit plan that is not part of a collective agreement. Nonetheless, an arbitrator may still have jurisdiction to hear some claims relating to benefits, even where a plan is not incorporated by a collective agreement_ If an employer commits in a collective agreement to provide a plan with specified benefits, an arbitrator is empowered to enforce that commitment. If it is met, the employer has L -35- fulfilled its only contractual obligation to the union, and disputes about the application of the plan are not arbitrable. Further, at pagraph 16, Arbitrator Brown talks of what, if anything, an arbitrator Inas jurisdiction to determine, if the plan is not incorporated into the Collective Agreement: Where a collective agreement does not incorporate a benefit plan, an arbitrator lacks jurisdiction to enforce the plan but may still be required to interpret it. If an agreement stipulates what must be in a plan, the plan itself must be read and assigned a meaning in order to decide if it complies with the agreement. In my view, Arbitrator Brown is staffing nothing more than that the plan must be read by the arbitrator to decide if it complies with the collective agreement. If it is a Brown and' Beatty category 3 plan, then it must be an industry standard plan. Once that is established the arbitrator's jurisdiction under the collective agreement is at an end. I have also reviewed the decision by Arbitrator Germaine in the Telus Communication Number 3 case, referred to by the Union, and have determined that he adopted and reinforced the reasoning of Arbitrator Brown in Atlas Copco. The Hospital equally relied on the BCCA's decision in Elkview to support its objection to arbitrability underthe Collective Agreement. As noted above Elkviewwas decided in 1997 and much has transpired concerning the arbitral jurisprudence, in this area, from that time to the present. Having said that, however, I do not find Elkview of assistance in my deliberations on this issue. In Elkview, the parties were in agreement that the definition of common law spouse under attack was a standard definition in the insurance industry and therefore the decision in Elkview must be read in that context. In the case before me, the Hospital agreed to purchase a plan and to pay the premiums. That obligation requires the Hospital to purchase a standard plan containing standard } -3b- definitions. Therefore, having regard to the arguments and authorities reviewed above, it is my#inding that I have jurisdiction to. determine the narrow issue ofwhetherthe insurance plan, purchased by the Hospital under the Collective Agreement, is an industry standard insurance policy containing standard definitions. A finding, that in my view, does not deviate from the established jurisprudence that there are four categories of ancillary documents to a Collective Agreement and that grievances concerning the administration of insurance plans that fall into Brown and Beatty category 3, of which the instant plan is one, are not arbitrable_ The Hospital maintains that it has purchased an industry standard policy which has been in existence for almost 20 years. The terms of the policy, the Hospital contended, are also standard for the industry and the Union has not alleged that the policy is contrary to the Collective Agreement, during that lengthy period of time.. - That being said, when the hearing resumes, the Union will be afforded the opportunity to raise evidence to the contrary, if such is the case. In summarythen, I find that 1 have jurisdiction underthe Collective Agreement to determine the narrow issue of whether the Hospital has purchased an industry standard insurance policy. THE HOSPITAL'S ISSUE # 3 - THE TIMELINESS OF MR. JOMPHE'S GRIEVANCE Turning to the third and final issue before me, whether Ms_ Jomphe's grievance was filed out of time, I have concluded that her grievance is of a continuing nature and is therefore not subject to the normal time limit constraints that accompanies a grievance that crystalizes at a particular moment in time. In pondering this issue, I took into consideration the following passage from Brown and Beatty, which stands forthe proposition that in grievances of continuing naturethetiming -37 - of the filing of the grievance does not defeat it, rather it goes to the limit of the remedy afforded to the Griever should her grievance be upheld: Where it is established that the breach is a continuing one permitting the time period for launching the grievance to be measured from the latest occurrence, it has been held that the failure to initiate it within the stipulated time from the date of its first occurrence will not render it inarbitrable. However, the relief or damages awarded retroactively in such circumstances may be limited by the time -limit. Thus, for example, where a grievance claimed improper payment of wages and the grievance was allowed, the award limited the damages recoverable to five full working days prior to the filing of the grievance, which was the time -limit for initiating the grievance. The Union, on Ms. Jomphe's behalf, alleges that the Manulife Policy is discriminatory towards an identifiable group, of which she is a member. In my view, that allegation is not one that is fixed in time, but is clearly ongoing. The Manulife Policy, if it is found to be discriminatory in nature, will be equally discriminatory towards Ms. Jomphe, atthe moment in time when the decision is rendered or as it was six months or for that matter a year ago. In a like view, if the insurance policy is found to contravene the provisions of the Collective Agreement, in other words that it is not a standard policy with standard definitions, the breach will equally be one of a continuing nature. It would, in my view, be nothing short of absurd and completely contrary to any notion of natural justice or fairness to inform Ms. Jomphe, on the one hand, that her grievance is untimely but say to her on the other, "By the way, your sick leave has again expired and you may file another grievance. However, your new grievance will .take six months or longer to wind its way through the grievance process before you will be afforded a hearing before an arbitrator." Ms. Jomphe filed her grievance in April of this year. The Union alleges, on her behalf, that at thattime the insurance plan was discriminatory. That same allegation was maintained by the Union up until the time of the hearing on this matter and will continue until 1 render my award and beyond. I therefore, find that Ms. Jomphe's grievance is of a continuing nature and I have jurisdiction to hear it. -38 - Be that as it may, Ms. Jomphe's remedy, if she is successful, will ultimately be limited to a brief period prior to the filing of her grievance on April 3, 2013. Having found that Ms. Jomphe's grievance is of continuing nature, it is not necessaryfor me to consider the arbitral cases cited by the Hospital. They bath dealt with grievances where an allegation was raised over an incident that tool[ place at a fixed moment in time. In both awards the arbitrators' refused to exercise their discretion under Section 48(16) of the Labour Relations Act to extend the time period for the filing of the grievance. For reasons stated above they are distinguishable from the facts in the case before me. For all of the reasons stated above, I find: First, that I have jurisdiction to determine whether the Manulife Policy purchased by the Hospital is discriminatory and therefore, contrary to the non-discrimination clause in the Collective Agreement and the Human Rights Code. Second, that I have jurisdiction, under the Collective Agreement to determine the narrow issue of whether the Hospital has purchased an industry standard insurance plan_ Third, that I have jurisdiction to deal with Ms. Jomphe's grievance as it is continuing in nature_ DATED AT OTTAWA THIS 1ST DAY OF NOVEMBER 2013 7� SYDNEY BAXTER