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HomeMy WebLinkAboutUNION-1996-22-06 . /~-A-~J b< cI, , . ----~ 0v:J.U.u-~ IN THE MATTER OF AN ARBITRATION Between: The Renfrew County and District Health Unit and The Association of Allied Health Professionals: Ontario (policy grievance) AWARD Board of Arbitration: D. Fraser, Sole Arbitrator Appearing for the Employer: Lynn Harnden, Counsel Norm Lemke, Chief Administrative Officer Catherine Bloskie, Director of Corporate Services John Van Massenhoven, Student-at-Law Appearing for the Association: Judith Allen, Counsel Sue McCulloch, Labour Relations Officer Robin Lowry, President of Bargaining Unit This matter was heard at Ottawa on March 19th and May 10th, 1996. 1 This is a policy grievance in which the Association claims that the Employer has failed to provide adequate professional liability insurance as required by the Requlated Health Professions Act, 1991, as provided for under Article 16.03 of a collective agreement between the parties expiring December 31st, 1993. As this is a continuing grievance, the Association also also seeks a remedy under the successor collective agreement, expiring December 31st, 1995, in which Article 16.03 has been changed by the elimination of the word "adequate". Article 16.03 under the earlier agreement reads: "16.03 Malpractice Insurance The Employer shall provide adequate malpractice and professional liability insurance." Article 16.03 in the later agreement reads: "16.03 Malpractice Insurance The Employer shall provide malpractice and professional liability insurance." The Employer has provided an insurance plan through an insurer pursuant to these articles, and it was not claimed that the plan obtained was unsatisfactory, until a new obligation was created by legislation on members of the College of Occupational Therapists and others arising from a new program to provide funding for therapy and counselling for patients who have been sexually abused by members. The obligations is for a new and specific type of liability insurance for that funding. The statutory requirements for that liability insurance include the establishment under the Health Professions Procedural Code of the Reaulated Health Professions Act, of a program to 2 provide funding for therapy and counselling for patients who have been found by a Patient Relations Committee to have been sexually abused by a member of a regulated health profession under the Act (Sections 85.7(1) through (4), of Schedule 2 under that Act). Such funding, where paid out under those sections, may be recovered from a member under the provisions of Section 85.7(12), which reads: "The College is entitled to recover from the member, in a proceeding brought in a court of competent jurisdiction, money paid in accordance with this section for therapy or counselling for an eligible person referred to in clause (4) (a)." Since December, 1994, The College of Occupational Therapists of Ontario has required as a condition of licensing that a member of the College "shall have professional liability insurance that includes a sexual abuse therapy and counselling endorsement" that "provides coverage for funding for therapy and counselling for every person eligible for funding under clause 85.7(4)(a) of the Health Professions Procedural Code on the basis of a finding by a panel of the Discipline Committee that the person, while a patient, was sexually abused by the applicant, and..." Such coverage is available from the Ontario Society of Occupational Therapists, by virtue of a rider or endorsement attached to a Professional Liability Insurance Plan available to their members. To obtain that coverage, an eligible person needs to take out membership in the Society at a current cost of $146.59 for a practising therapist, and to purchase coverage under the Plan for $45.00. similar coverage may be obtained from the Canadian Association of Occupational Therapists at a membership cost of $230.05, and a plan cost of $55.00. None of these facts are in dispute, although any interpretation of them that places a 3 liability on the Employer is disputed by the Employer. As noted at the outset, the Association claims that the Employer has an obligation under Article 16.03 of both the old and new collective agreements to provide this coverage. without admitting liability, the Employer has attempted to get such coverage by way of endorsement to its current policy or otherwise, and has not been able to. The Association claims that its failure to so do does not indicate that such coverage is not available, and that the Employer has not made all possible efforts. If such coverage is not otherwise available, then, as it ,is mandatory, Occupational Therapists at the Health Unit are obliged to obtain such coverage through membership in the Ontario Society of Occupational Therapists or the Canadian Association of Occupational Therapists, and purchase of the appropriate insurance plan and rider. It is the Association's position that the cost of such coverage, including membership in the appropriate body is a liability of the Employer under Article 16.03 under such circumstances, and that liability remains until such time as the Employer is able to obtain appropriate coverage elsewhere. The remedy sought by the Association is accordingly (a) provision of the appropriate coverage by the Employer through an insurance plan obtained by it pursuant to Article 16.03; (b) compensation by way of reimbursement to employees who have meanwhile obtained the coverage through membership in the appropriate body and purchase of the appropriate insurance; and (c) if the Employer is unable to obtain such coverage, continuing compensation as in (b) above, while the statutory and collective agreement obligations continue to exist. I will now turn to the submissions of the parties on these matters. 4 Ms. Allen for the Association traced the statutory obligation for the purchase of the liability insurance noted above, but it is not necessary to deal with that matter further in respect of an obligation placed on a member, as Mr. Harnden for the Employer did not dispute that obligation. His response was focussed on the submission that such an obligation did not carryover to the Employer by virtue of the collective agreement. I will elaborate on that response below. Counsel for the Association then turned to the provisions of Art. 16.03 in both the old and new collective agreements. The, earlier provision reads "The Employer shall provide adequate malpractice and professional liability insurance." , and the later provision is identical with the word "adequate" removed. Counsel submitted a line of cases for the board's consideration, including Re ICG Utilities Greater Winnipea Gas Co. and Enerov & Chemical Workers' Union, Local 681 (1989) 8 L.A.C. (4th) 289 (Freedman); Gloucester Professional Fire Fiqhters' Association, Local 1484 and Corporation of the City of Gloucester, an unreported decision of David Kates dated October 23rd, 1995; Re Canadian Car Division, Hawker Siddelev Canada Ltd., and United Automobile Workers, Local 1075 (1981) 1 L.A.C. (3d) 331 (Hinnegan); and Re Andres Wines (B.C.) Ltd. and United Brewerv Workers. Local 300 (1981) 30 L.A.C. (2d) 259 (Christie). Counsel suggested that these cases were not very useful in the context of the present dispute, as they mostly discussed categories of articles in collective agreements, and of obligations arising therefrom which were not particularly relevant in the present circumstances. I will not analyse the principles in the cases submitted, as both Counsel agreed with those principles, 5 and differed only in the application of a principle found in the Andres wines case. That principle requires, among other things, that where there is a collective agreement requirement for a plan of insurance, and that requirement is vague or incomplete, then the obligation is to provide such a plan in "standard" form. Ms. Allen characterised that obligation in the context of the present case, as one to provide minimal or minimum coverage for the requirement set by legislation as noted above. Counsel did not take issue with the adequacy of the provisions of the initial insurance plan provided by the Employer, but proposed that the new statutory obligation changed the content of the minimum level of benefit required in such a plan. She submitted that that content must include adequate minimal liability insurance to allow the occupational therapist to be licensed, and that included the new rider or endorsement required by the College. Mr. Harnden, for the Employer, submitted in response that it was very hard to conclude that the Employer had not provided a standard plan that met the requirements of Article 16.03, in the initial policy it had first obtained, and that any further obligation, which was not admitted, could only conceivably arise from the word "adequate" in the earlier Art. 16.03, which had been removed from the later article. Counsel for the Employer then traced the origin of that further obligation, and noted that the legislation had placed an obligation on the College, of funding a program as described above. That obligation to fund, had been transferred to the members of the College, by creating a membership obligation in order to obtain appropriate insurance. Counsel submitted that it would be extraordinary if that situation between legislature, 6 College, and its members, could then create a new obligation on the Employer in the collective agreements under consideration. Counsel also submitted that it was not a simple obligation for extended insurance coverage to cover a new liability, but because of the unilateral actions of the College, it could also become an obligation on the Employer to pay for a member's fees to join a professional association or society. That, he proposed, was a suitable matter for the next round of bargaining, and not an obligation to be read into past and current collective agreements. These issues are unusual, but I would determine them in the following way. First, the language of the collective agreement, and of the required endorsement or rider, is very clear. The collective agreement, in both instances, requires the provision of professional liability insurance by the Employer, and the endorsement required is one to insure against a professional liability. Second, although the initial policy obtained by the Employer met the requirements in the jurisprudence of a standard policy, as agreed by the parties, in this case the minimal contents of such a policy changed when a new professional liability arose. There is no question that that liability was created in part by the legislature, and in part by the College by its response to the legislation, but in both cases it is a bona fide obligation created for a bona fide program arising from the exercise of appropriate legislative or quasi-legislative powers. That the legislature, pursuant to its powers, has passed the funding obligation to members of the College, and that the College, pursuant to its statutory powers of licensing and other powers, has transformed that obligation into a new professional liability 7 insurance requirement, will be unfortunate and in may cases difficult to meet in terms of cost implications to any employer who has agreed to provide such insurance, but that does not render any of those exercises invalid in law. As Counsel for the Association noted in reply, shifts in obligations on employees and employers regularly occur through new legislation, such as the Ontario legislation creating the Employer Health Tax, which altered obligations under numerous collective agreements in Ontario. In this case, we have the added intervention of the College of Occupational Therapists, but that is a quasi- legislative body which has exercised its powers in a legitimate w~. Third, as the minimal contents of a liability insurance plan now require coverage for that new liability, it does not matter whether the word "adequate" appears in the collective agreement language or not. If no coverage at all is provided for a bona fide professional liability, then the coverage is less than inadequate - it doesn't exist - and there is no doubt that the Employer's obligation has not now been met. Fourth, if those minimal contents are obtained through a society or association, membership in either is a necessary pre- condition or cost of doing business to obtain the insurance. Pre- conditions of a wide variety for obtaining insurance coverage are not unusual, but what is unusual is the cost of that pre- condition, which essentially ends up as being a cost of the insurance. That burden unavoidably falls on the Employer if such insurance is the only way to meet its obligations, but an equitable remedy may be provided to partly offset that cost. For the reasons given above, I therefore find that the 8 Employer has failed to provide professional liability insurance as required by Article 16.03 in both collective agreements under consideration, for coverage for funding for therapy and counselling as required under clause 85.7(4)(a) of the Health Professions Procedural Code, as described in more detail above. I will now turn to the question of remedy. The usual remedy in such cases includes a requirement that the Employer contract for the required coverage; or provide it directly as an insurer. As Counsel noted, that latter option is not available in this case, as the College requires an insurance endorsement or rider as a condition of membership. The two possible routes for a remedy in the circumstances of this case involve the Employer obtaining such coverage from a carrier, or the Employer reimbursing employees for coverage they have obtained from their Association or Society. Both possible remedies involve further difficulties. The Employer has submitted that it has attempted to obtain the necessary coverage (without admitting liability for such), and that it was unobtainable. The Association has submitted that the Employer has not tried hard enough. That is not a matter I am able to resolve at this time, as the evidence is incomplete, but the issue may be met by placing a duty on the Employer, with an alternative remedy if that duty can not be met, The second issue in terms of remedy arises from the fact that membership in an Association or Society is required as a pre- condition of obtaining the endorsement from such a body. If that is the only way that the necessary coverage can be obtained, it may be that that is an unavoidable cost of business that the Employer has to meet to fulfil its obligation under Article 16.03. 9 However legal that remedy is, it is somewhat inequitable as the member then has the other benefits of a relatively costly membership in an Association or Society, without having bargained for it, and at the expense of the Employer. It may be presumed that those benefits go beyond the provision of a rider for the new professional liability, and such benefits may extend some time in the future. As noted earlier, this may be partly cured by an exercise of equitable jurisdiction in determining remedy, as will be found below. For all these reasons, I declare that the remedy in this. matter is the following: 1. The Employer is directed to make its best efforts forthwith to obtain the professional liability insurance coverage required by the College, as noted earlier. 2. The Employer shall reimburse employees who have obtained the insurance coverage from the Ontario Society of Occupational Therapists or the Canadian Association of Occupational Therapists fore their following expenses, up to the time insurance is obtained in paragraph 1. above, for: (a) The cost of any membership fee in the Ontario Society of Occupational Therapists or the Canadian Association of Occupational Therapists, attributable to the period Januarv 1st, 1996 onward, at the rate of the lowest membership cost; (b) The cost of any 'insurance plan since enrolment, purchased by a member from either the Society or Association in (a) above, excluding any legal expenses reimbursement rider, which was necessary as a minimum requirement to obtain the necessary professional liability endorsement; 3. The Employer shall reimburse employees for the cost of any future membership fee in either the Society or Association mentioned above, that is required for the purchase of the necessary professional liability endorsement, and the cost of any insurance plan that is necessary for that endorsement, until such time as the Employer is able to obtain the necessary coverage through a carrier, or until the obligation under article 16.03 is changed by the parties by negotiation or otherwise. 10 I remain seised of all outstanding matters, including remedy, that may arise from this award. Dated at Ottawa, this 22nd day of June, A.D. 1966 ~ D. Fraser.