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HomeMy WebLinkAboutSwick 19-11-19Sydney Baxter Arbitration Services Inc. 20 November 2019 Ms. Caroline Richard Bird Richard Lawyers for Employers 130 Albert Street, Suite 508 OTTAWA ON KIP 5G4 Mr. Wassim Garzouzi Raven, Cameron, Ballantyne & Yazbeck LLP 1600 - 220 Laurier Avenue, West OTTAWA ON KIP 5Z9 Dear Ms. Richard and Mr. Garzouzi: 29 Hertidge Street Ottawa, Ontario KIS OG6 Telephone: (613) 230-4850 Facsimile: (613) 569-8299 Email: sydbax@rogers.com Re: Royal Ottawa Health Care Group and OPSEU - Grievance of Patricia Swick - Grievance # 2018-0479-0031 Enclosed you will find a copy of my decision concerning the HospitaI's motion regarding my jurisdiction to hear the grievance based on the doctrine of Res Judicata. Yours truly, Sydney Baxter Encl. c.c. Dayna Firth Director Office of Arbitration Carswell, a Thomson Reuters business Lancaster House IN THE MATTER OF AN ARBITRATION PURSUANT TO THE PROVISIONS OF THE LABOUR RELATIONS ACT, 1995 BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 479 (The "Union") - and - THE ROYAL OTTAWA HEALTH CARE GROUP (The "Hospital") RE: GRIEVANCE OF PATRICIA SWICK CONCERNING SHORT TERM DISABILITY HOSPITAL'S MOTION REGARDING MY JURISDICTION TO HEAR THE GRIEVANCE BASED ON THE DOCTRINE OF RES JUDICATA LOCATION OF HEARING: DATE OF HEARING ON BEHALF OF THE UNION: ON BEHALF OF THE HOSPITAL: SYDNEY BAXTER OTTAWA, ONTARIO OCTOBER 9, 2019 MR. WASSIM GARZOUZI SOLE ARBITRATOR MS. CAROLINE RICHARD -I - This is an arbitration arising out of a grievance filed by the Ontario Public Service Employees Union Local 479 (the "Union") against The Royal Ottawa Health Care Group (the "Hospital" or "Employer") on behalf of Ms. Patricia Swick (the "Grievor"). The grievance alleges that the Grievor is being denied Short Term Disability benefits (STD). The parties entered into evidence the following agreed statement of facts. 1. On July 14, 2017, the Employer and the Union entered into a Memorandum of Agreement whereby they agreed to amend the Manulife Disability Policy for OPSEU Division 9 only, as follows: Totally Disabled: (A) For non -retired employees (active employees) for WEEKLY INDEMNITY continuously disabled due to bodily injury or sickness, preventing the employee from working for the employer for his normal wages or profit or unable to work their normal hours. 2. Manulife amended the Policy and issued new benefit booklets incorporating this new definition on March 5, 2018. 3. Patricia Swick did not apply for short-term disability pursuant to the OPSEU Division 9 policy in 2017. 4. Patricia Swick applied for short-term disability benefits pursuant to the OPSEU Division 9 policy in or around October 2018. 5. By letter dated November 2, 2018, Manulife advised Ms. Swick that her claim was denied. WA 6. On November 21, 2018, Manulife confirmed to the Employer that Ms. Swick's claim was denied based on the new definition. 7. On November 12, 2018, Ms. Swick filed a grievance in respect of Manulife's decision to deny short term disability benefits. 8. The Employer issued a Grievance Reply on November 26, 2019 denying the grievance. 9. On December 11, 2018, a Step 2 Grievance Meeting took place. The Employer issued a Grievance Reply on December 20, 2018. 10. On December 18, 2018 Manulife confirmed to the Employer that Ms. Swick had appealed the denial of her short term disability claim. 11. By letter dated December 19, 2018, Manulife advised the Employer that the review of Ms. Swick's appeal had been completed and that Manulife maintained its decision to deny her short term disability claim. Manulife confirmed that Ms. Swick had until November 1, 2019 to further appeal this decision. 12. By letter dated May 15, 2019, Manulife advised Ms. Swick that her request for reconsideration of the decision to decline her claim was being referred to the National Appeals Team. 13. By letter dated June 25, 2019, Manulife advised the Employer that Manulife was upholding its decision to decline Ms. Swick's claim. Manulife confirmed that the decision was final with no further right to appeal. -3 - The Hospital raised a preliminary objection to my jurisdiction to hear the grievance based on the following grounds: A previous grievance involving the same subject matter has been resolved when the parties entered into a Memorandum of Agreement (MOA) subsequent to my ruling in November 2013 (the first decision) that I had jurisdiction to deal with the Grievor's original grievance concerning her denial of STD. My jurisdiction is limited to the MOA which has been implemented by the parties. Further, that question is Res Judicata with regards to my first decision. Finally, the Union is estopped from raising the discriminatory aspect of the insurance plan based on the MOA. THE HOSPITAL'S ARGUMENT The Hospital argued that the parties solved the problem which gave rise to the Grievor's previous grievance by executing the MOA. Therefore, the matter that I assumed jurisdiction to decide has been resolved. The only thing left for me to decide would be whether the hospital has purchased a pian in accordance with industry standards. In this regard, it was the Hospital's position that the tweaking of the definition of disability has made the pian a superior one. The Hospital referred me to my findings in the first decision, at page 38: 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. 151 Second, that I have jurisdiction, underthe Collective Agreement to determine the narrow issue of whether the Hospital has purchased an industry standard insurance plan. Accordingly, the Hospital argued I have already determined that my jurisdiction is limited to my findings in that award which do not include the Grievor's entitlement to STD. The Hospital relied on the following authorities: Brown and Beatty, Canadian Labour Arbitration 5" Edition 2:3221; Re Sobeys and UFCW, Loc 175 (Cooper), [2002] O.L.A.A. No. 959 (Bendel). THE UNION'S ARGUMENT The Union argued that what is before me is a fresh grievance. In 2012 and 2013 the grievance dealt with the Grievor's "eligibility" to apply for STD. The issue in the instant case deals with the Grievor's "entitlement" to STD under the plan with a new definition of disability. The Union referred me to the following passage from my first decision at page one where I set out the issues to be determined at that time. At issue is whether the arbitrator has jurisdiction to hear the Union's allegations that the STD Insurance Policy is first, discriminatory and second, not in compliance with the terms of the Collective Agreement. The Union reminded me that what it challenged in 2012 was the definition of disability in that the Grievor was partially disabled and could not apply for STD. The issue before me presently is whether the Grievor is "entitled" to STD by virtue of her partial disability. -5 - The Union's argument breaks down into the following four headings. 1. The parties cannot contract out or be estopped from enforcing legislation. In support of this argument the Union relies on the following; Brown and Beatty, Canadian Labour Arbitration, 5t' Edition, 2:2215; Algonquin College and OPSEU, 2018 CanLll 8352 (O'Neile). 2. The Courts have deferred disputes concerning STD and LTD benefits back to arbitration. In support of this position, the Union cited the following: Morris v. Manulife, 2005 CanLll 4580 (ONSC) (app'd by ONCA); Campos v. Sun Life Assurance Co of Canada, 2009 CanLII 43186 (ONSC); Barber v. Manulife Financial, 2017 ONCA 164; Hutton v. Manufacturers Life Company, 2019 ONSC 279 ONSC. 3. The Collective Agreement, in particular Article 13.04, provides this arbitration board full jurisdiction to deal with "entitlement" to STD or LTD. Article 13.04 Any dispute which may arise concerning an employee's entitlement to short-term or long-term benefits may be subject to grievance and arbitration under the provisions of this agreement. 4. Arbitrators have taken jurisdiction in cases where the Collective Agreement, on its face, does not allow it. no In support of which the Union relied on the following: Sienna Senior Living and ONA, 2017 CanLll 56456 (Knopf); Central East Local Health Integration Network and ONA, 2018 CanLll 13540 (McNamee). HOSPITAL'S REPLY ARGUMENT The Hospital in reply submitted that the issue of the Grievor's entitlement ought to have been raised during the previous proceedings. It was not. Therefore, the principle of Res Judicata applies. In support of this argument, the Hospital relied on Telus Communication Inc. v. Telecommunications Workers Union [2006] C.L.A.D. No 451 upheld by British Columbia Supreme Court in Telecommunications Workers Union v. Telus Communications Inc., 12007] B.C.J. No 2123. DECISION I first turn to the Hospital's argument that the doctrine of Res Judicata applies in the present circumstances owing to the fact that the issue before me is the same as what was decided in my first award in 2013. After a thorough review of my first award, I do not find support for the Hospital's argument that the matter that gives rise to the present issue has been dealt with in that award. My first award was a preliminary decision which dealt with the Hospital's motion taking issue with my jurisdiction to hear the grievance. I was not given an opportunity to determine the principle question which was whetherthe plan was orwas not discriminatory to partially disabled employees. -7 - Rather, at issue was "whether this arbitrator has jurisdiction to hear the Union's allegations that the STD Insurance Policy was first discriminatory and second, not in compliance with the terms of the Collective Agreement". (Page 1) In other words, the grievance that was before me in 2013, challenged the definition of disability under the insurance plan in that the Grievor who claimed to be partially disabled was prevented from applying for STD. I noted at page 12 of the first award that the Union's argument simply stated was that the issues to be decided were 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 consistent with the Human Rights Code and whether or not it is in compliance with the terms of the Collective Agreement. The subject matter of the instant grievance, in my view, differs substantially from what I was being asked to consider in 2013. The Grievor does not claim, in her present grievance, that the Hospital has provided a disability plan that is discriminatory rather, that she has been discriminated against by being denied benefits under the plan. I repeat, it is her "entitlement" that is presently at issue, not her "eligibility". For Res Judicata or issue estoppel to apply, as the Hospital argues, it is clear from the authorities that the issue to be decided must be identical to a former grievance. (emphasis added) - See Brown & Beatty paragraph 2:3221. Clearly, there is a substantial distinction between "eligibility" to apply for a benefit and that of" entitlement" to the same benefit. Accordingly, it is my view that the doctrine of Res Judicata is not applicable in the present circumstances. -8 - Turning now to the MOA dated July 14, 2017 which the parties reached subsequent to my preliminary award. The MOA states the following: Without precedent or prejudice to the ROHCG [the Hospital] or the Union or any position either may take in future cases of similar or identical circumstances, the parties agree to the following. Ms. Bouchard, the Hospital's Manager of Labour Relations and Conflict Resolution testified that, as a result of the MOA, the definition of total disability in the Manulife Plan was amended. Under cross-examination, Ms. Bouchard agreed that grievances between the parties are resolved on a with prejudice basis where the parties agree not to raise the issue again. Other grievances, she agreed are resolved without prejudice. These are sophisticated parties who in my view clearly know the difference between an agreement with prejudice and one without. If the parties had wished finality to a matter as the Hospital now maintains they ought to know better than to enter into a without prejudice MOA. To hold the parties to a without prejudice agreement as binding when they in no uncertain terms agreed not to be so held, would in my view do irreparable damage to any negotiations to settle grievances in the future. This is a state of affairs which, in my view, leads inevitably to a breakdown in the element of trust between the parties. In support of its position that the matter has been resolved byway of the MOA, the Hospital referred me to Re Sobeys, supra. In My review of arbitrator Bendel's decision in Sobeys leads me to conclude that the award is distinguisable from the facts which before me. The Union in Sobeys filed a grievance which alleged "unjust termination - failure to pay notice/severance termination pay" and sought "complete and full redress". The Union and the Employer settled the grievance and agreed to pay the Grievor 2 weeks severance on a without prejudice basis subject to the unjust termination grievance being withdrawn. The Grievor did not cash the cheque for the two weeks salary. The Union filed a second grievance alleging "unjust termination based on disability", referring to the Human Rights Code, R.S.O. 1990, c. H.19. In the Sobey's award the two grievances before arbitrator Bendel dealt with an identical issue, that of the Grievor's alleged "unjust termination". In the case before me the present grievance deals with the issue of "entitlement" for STD and not "eligibility"which was the issue in my first award. I now turn to the Hospital's argument in reply that Res Judicata applies because the Union failed to raise the issue of entitlement in the previous hearing. In Telus the BC Supeme Court stated there are two aspect to the doctrine of doctrine of Res Judicata: First, it bars a party from re -litigating an issue which has already been decided in a previous proceeding. Secondly, it also prevents a party from litigating a matterwhich it ought to have brought up at an earlier proceeding. The Hospital's argument on this point would be more persuasive had I been permitted to deal with the merits of the grievance in 2013. However, I did not deal with the merits at that time, dealing as I did with the Hospital's challenge to my jurisdiction to consider the matter -10 - of "eligibility." There was no opportunity for the Union to raise the issue of "entitlement: at arbitration. In the result, the Telus decision, in my view, is not helpful to the Hospital's position. My attention was drawn, by the Hospital, to the following passages from my earlier award: Applying the principles 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. (Page 17) and at page 23. 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 in arbitrable, 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. A significant amount of time has passed since I rendered my first award in 2013. Since then, the state of the arbitrable law regarding the limitation of the arbitrability of grievances dealing with insurance plans has significantly changed. In 2017, the Court of Appeal for Ontario in Barber, supra dealt with a decision by the Superior Court of Justice granting a motion by Manulife to strike plaintiff Barber's claim against Manulife because, as Manulife argued, Barber's Collective Agreement granted exclusive jurisdiction over her matter to the labour arbitration process. Despite the fact that it was argued that the insurance plan fell within Brown and Beatty category 3 the Court found the following: -11 - Neither party denied that the essential character of the dispute concerned LTD benefits. Therefore, the motion judge moved directly to the question of whether the claim's essential character arose from the interpretation application, administration or violation of the CA. If so, an arbitrator, not a court, had exclusive jurisdiction to decide the issue: Weberv. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 11, 52, 54. Article 18 establishes Barber's rights to LTD benefits. They do more than merely oblige the employer to pay premiums for insurance — they cover terms, the amount of the disability benefits and even the definition of total disability, and it makes specific reference to the Policy. The employer may change insurance as long as the benefits in the CA are continued. The fact that LTD benefits are paid under the Policy does not change the fact that Barber's entitlement to LTD benefits is provided by the CA. Indeed, the degree of detail Article 18 provides on the terms of the relevant insurance plan supports the correctness of the motion judge's decision. In Barber, the Ontario Court of Appeal has given clear direction that a grievor's Collective Agreement grants exclusive jurisdiction over disputes concerning insurance plans to the labour arbitration process. Further, were I to decline jurisdiction, as the Hospital argues, the Grievor, in the case before me, would have nowhere to turn for relief with the unpalatable result of Article 13.04 containing nothing more than hollow words having no meaning whatsoever. In the same vein as in Barber both arbitrators in Siennia Senior Living, supra and Central East Local Health Integrator Network, supra, assumed jurisdiction to hear a grievance concerning entitlement for STD where the respective Collective Agreements contained less compelling language than that contained in the Collective Agreement before me (See Article 13.04 set out above). Of note is the following comment by arbitrator Knopf in Siennia Senior Living at page 12: -12 - Even if this is a Category 3 Collective Agreement, the fact that the administration is being done by Blue Cross does not shield the Employer from the responsibility of ensuring that the Plan is being administered in accordance with the Collective Agreement. The Employer has properly conceded that any arrangement it has with Blue Cross cannot give the insurer/administrator greater rights than the Employer has with respect to bargaining unit employees. It therefore follows that the Employer cannot avoid its contractual obligations with regard to the administration of Article 14 by engaging Blue Cross to administer the claims. Of further note are the comments by Arbitrator McNamee in Central East Local Health, supra, at page 15. However, even in circumstances where Category 3 applies, arbitrators have always asserted jurisdiction over a claim that the insurance policy purchased by the employer did not conform to the requirements set out in the collective agreement. In some of the case law, this type of result is sometimes referred to as a "hybrid" or a "hybrid Category 3 plan". It certainly would seem to make sense that an arbitrator can exercise that kind of jurisdiction in appropriate cases. As is obvious, if the parties have negotiated collective agreement provisions which speak to the outline of benefits to be provided under an insured plan, the employer cannot expect to avoid claims that it has failed to provide the agreed upon coverage simply on the basis that it is the insurer who administers a (deficient) policy. Finally, it is not novel for an arbitrator to adopt a different approach to one taken by him or her in a previous award(s) when the judicial reasoning, such as in Barber has dramatically changed from what was the previous prevalent view. Arbitrator Knopf acknowledged the "shifting currents" of arbitral reasoning in Royal Ottawa Hospital and CUPS 947, (2019), in the following way: [when his or her approach] "no longer represents the prevailing or accepted approach to this issue". -13 - In Royal Ottawa Hospital, supra, Arbitrator Knopf in dealing with the interpretation of the contracting out article between the Hospital and COPE. She stated the following: There has been a great deal of arbitral activity on this language in this sector and in other sectors where it is also common. The earlier relevant authorities did adopt the principle that "work of the bargaining unit language" did not protect work that was shared by two bargaining units. I followed that line of authorities when I took the same approach in the Sudbury Memorial Hospital case, supra, decided in 1986. Other respected arbitrators also adopted that approach, as cited by the Employer, including Arbitrator Mitchnick in his 1993 decision concerning Hospital for Sick Children and CUPS, supra. However, the tides of arbitral approach to Article 11.01 have since shifted. Like Arbitrator Mitchnick, I cannot ignore the fact that the tide has turned. The "shared work" line of cases was premised on the proposition that a union could only protect duties that were exclusive to its bargaining unit. However, the language of Article 11.01 does not require "exclusivity". A plain reading, as is required, prohibits the reassignment of bargaining unit work normally performed by bargaining unit members. This leads me to the inescapable conclusion that my earlier interpretation of Article 11.01 must shift to the now much more accepted "type and volume of work approach". I admit that it may seem ironic for me to rely on this concept after reversing my approach to Article 11.01. However, my reasons for doing so are set out above and the passage of time makes an enormous difference to the context. Improved understanding and acceptance of new patterns is more important than adhering to old notions. One should appreciate that it would be simply unreasonable for me to ignore that the reasoning of arbitrators and the Court, regarding the question of the arbitrarily of STD and LTD claims, has shifted since my earlier decision. As such, my comments concerning the limitation of the arbitrability of grievances dealing with insurance plans made in my first award are no longer applicable in the context of current school of arbitral thought. For all of the reasons set out above I find that I have jurisdiction to hear and consider the present grievance which deals with the Grievor's "entitlement" to STD under the Collective Agreement. DATED AT OTTAWA THIS/?DAY OF NOVEMBER 2019 �Z� SYDNEY BAXTER