HomeMy WebLinkAbout2019-0734.Union.21-11-29 DecisionCrown Employees Grievance Settlement
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GSB#2019-0734
UNION#2018-0999-0035
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
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The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Reva Devins Arbitrator
FOR THE UNION Ed Homes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Sean White
Treasury Board Secretariat
Counsel
HEARING February 6, November 23 and 30, 2020;
January 21, March 22 and June 17, 2021
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Decision
[1] The Union has filed a policy grievance with respect to the proper interpretation of
Articles 39.2.6 and 67.2.6. The collective agreement provides for the payment of
supplementary health benefits to reimburse employees for “charges for the
services of a psychologist”. The dispute between the parties is straightforward:
where an employee receives treatment from a psychotherapist who is supervised
by a psychologist, does the collective agreement oblige reimbursement of charges
for the services of a psychologist in relation to the supervision they provide?
[2] The Union submits that there is no limitation in the collective agreement that
restricts entitlement to some, but not other services performed by a psychologist.
The Employer maintains that the only charges contemplated under the collective
agreement are those that relate to services provided directly to the employee by a
psychologist. That is, the Employer asserts that while therapy provided by the
psychologist, or a social worker with a Master of Social Work, is covered, charges
of a psychologist cannot be reimbursed where the therapy the employee receives
is provided by another, non-included, health care professional.
Collective Agreement
[3] The relevant provisions of the collective agreement are as follows:
22.9 INSURED BENEFITS GRIEVNANCE
22.9.1 An allegation that the Employer has not provided an insured
benefit that has been contracted for in this Agreement shall
be pursued as a Union grievance filed under Article 22.13
(Union Grievance).
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22.9 Any other complaint or difference shall be referred to the
Claims Review Subcommittee of Joint Insurance Benefits
Review Committee (JIBRC), established under Appendix 4
(Joint Insurance Benefits Review Committee), for resolution.
***
ARTICLE 39 – SUPPLEMENTARY HEALTH AND HOSPITAL
INSURANCE
39.2.6 Effective June 1, 2002, charges for the services of a
psychologist (which shall include Master of Social Work) up
to twenty-five dollars ($25*) per half-hour to an annual
maximum of one thousand and four hundred dollars ($1400);
***
ARTICLE 67 – SUPPLEMENTARY HEALTH AND HOSPITAL
INSURANCE (FPT)
67.2.6 Effective June 1, 2002, charges for the services of a
psychologist (which shall include Master of Social Work) up
to twenty-five dollars ($25*) per half-hour to an annual
maximum of one thousand and four hundred dollars ($1400);
* Effective April 1, 2019, the hourly cap was removed for
Correctional Officers and Youth Workers and raised to forty
dollars ($40) per half hour for all other employees. The
annual cap remains.
Extrinsic Evidence: Regulatory Framework, Psychologists’ Scope of Practice and
Supervisory Relationships
[4] The regulation of various disciplines in the health care sector has undergone
significant change in the past two decades1. For the purposes of this decision, it is
sufficient to set out the basic regulatory framework and the relationship across
disciplines between registered psychologists and registered psychotherapists.
1 Registered Health Professions Act, 1991, S.O. 1991, c.18, as amended.
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[5] The regulation of psychotherapy is restricted so that designated controlled acts can
only be performed by members authorized to do so under a health profession Act 2.
The controlled act of psychotherapy is defined as “Treating, by means of
psychotherapy technique, delivered through a therapeutic relationship, an
individual’s serious disorder of thought, cognition, mood, emotional regulation,
perception or memory that may seriously impair the individual’s judgement, insight,
behaviour, communication or social functioning.”3
[6] Registered Psychologists and Registered Psychotherapists can operate
autonomously and are both permitted to engage in the controlled act of
psychotherapy. Each discipline is regulated by a separate regulatory college, with
distinct requirements to become a registered practitioner. While both can treat
clients, there are important differences in the scope of their permitted practices.
Registered psychologists can perform psychological testing, diagnose,
communicate a diagnosis, and devise a treatment plan. A registered
psychotherapist is limited to assessing and treating a condition.
[7] The College of Psychologists of Ontario (“CPO”) Standards of Professional
Conduct (“Standards”) definition of psychological services includes a variety of
services, such as evaluation, diagnosis and assessment of individual patients,
consultation, and supervision, among others. Supervision is defined as “an
ongoing educational, evaluative and hierarchical relationship where the supervisee
is required to comply with the direction of the supervisor, and the supervisor is
2 Registered Health Professions Act, supra, s. 27 (1).
3 Registered Health Professions Act, supra, s. 27 (2) 14; 2007, c. 10, Sched. L, s. 32; 2007, c. 10, Sched.
R, s. 19 (1).
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responsible for the actions of the supervisee”4. While the CPO did not initially
permit a registered psychologist to offer supervision services to other regulated
health care providers, it currently allows registered psychologists to supervise
other providers, including treatment delivered by a registered psychotherapist.
[8] The CPO Standards further devotes a section to the responsibility of supervisors
of psychological service providers. The key elements are:
a. The client is considered to be the client of the supervisor.
b. The supervising member must enter an individual supervision agreement
signed by both the supervisor and supervisee. At a minimum, the
agreement must include the date it is effective and expected date it will
expire, duties and obligations of the supervisee and supervisor, and the
way the supervisor will be directly involved in the planning, monitoring and
evaluation of the services provided to clients.
c. Members must not make supervisory arrangements for the sole purpose
of facilitating billing and payment for services by a third-party payer.
d. The supervising member must co-sign all psychological reports and formal
correspondence.
e. The supervising member must have a direct supervisory relationship with
the supervisee who is the service provider, except in limited
circumstances.
4 CPO Standards of Professional Conduct (2017), Definitions.
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f. Supervising members must confirm that clients have been informed that
all services are reviewed with and conducted under the supervision of the
supervisor; and that the supervisor must have access to all relevant
information about the client.
[9] Finally, it is an act of Professional Misconduct if a psychologist fails “to supervise
adequately a person who is under the professional responsibility of the member
and who is providing a psychological service”5.
[10] Dr. Douglas, a registered psychologist with an active private practice that includes
supervising other service providers, testified to his experience supervising
psychotherapists. He is a former president and current board member of the
Ontario Psychological Association. He also considers himself instrumental in the
change in policy by his regulatory college with respect to supervision services
provided by psychologists.
[11] Dr. Douglas confirmed that when he is supervising someone treating a client, he is
professionally and legally responsible for the client. He is obliged to stay
reasonably up to date with the client’s treatment and progress, provide direction
regarding treatment, review written reports, be available to consult and answer the
client’s concerns or questions. Ultimately, he regards himself as ethically
responsible for all aspects of a client’s care when he is supervising the treatment
provided by another practitioner. If there is a transgression by the supervisee, the
client is entitled to complain to the colleges of both the psychologist providing
5 Section 1 (5), O. Reg 801/93, Psychology Act, 1991
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supervision and the social worker or psychotherapist who is providing the direct
treatment.
[12] There are several advantages to supervised treatment from Dr. Douglas’s
perspective. First and foremost is the increased access to services. There are a
limited number of registered psychologists in the province, and they cannot meet
the current demand for psychological services. Most psychologists also practice in
urban centers, and many operate with long wait lists. Supervision allows registered
psychologists to extend access to psychological services by other professionals,
while still offering oversight by a psychologist with in-depth expertise and training.
[13] A registered psychologist who is supervising a registered psychotherapist also
provides diagnostic oversight. They can offer diagnostic testing, diagnose
psychological conditions, and rule out others. Communicating a diagnosis to a
client must also be done by a registered psychologist and cannot be undertaken by
a psychotherapist.
[14] On cross-examination Dr. Douglas acknowledged that registered psychologists,
operating under the CPO, and registered psychotherapists, who are registered
under the College of Registered Psychotherapists of Ontario (“CRPO”), are distinct
health practitioners, each bound by their own governing regulations and standards.
They have different educational requirements, scope of practice, registration
requirements and professional obligations. While a registered psychologist can
perform services that a psychotherapist cannot, such as communicating a
diagnosis, he acknowledged that registered psychotherapists are permitted to
practice without supervision. He further agreed that offering supervised treatment
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by a registered psychotherapist was a means of making therapy more affordable
by reducing the hourly rate for treatment.
[15] Dr. Douglas was asked to distinguish between consultation and supervision. He
advised that a consulting professional offers an opinion but does not assume
responsibility for the client. When a client is treated by a supervised practitioner,
they become the client of the supervisor who is responsible for their treatment and
care.
[16] On redirect he confirmed that when his clinic bills for services it does not typically
include a separate line item for supervisory services. The hourly rate for therapy is
inclusive of his time supervising the treatment provider.
Extrinsic Evidence: Insurer’s Practice
[17] Cory Smith, a technical consultant with Manulife in group benefits, reviewed the
way claims for psychological services are adjudicated under the provincial plan.
She noted that there were two approved practitioners: registered psychologists and
registered social workers. It was her understanding that the only services that were
covered were those offered directly to a client by one of these two practitioners.
Claims for psychological services were approved under the provincial plan where
an included practitioner rendered a direct service to clients, treating them one on
one, with face-to-face contact. The claim was disallowed if the therapy was
provided by a practitioner who was not a psychologist or Master of Social Work. No
amount was allowed for ‘supervision’ services. Ms. Smith acknowledged that
Manulife does cover supervision services in connection with other plans, however,
not under the plan it administers for the province.
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[18] Ms. Smith’s Will Say Statement included a review of several invoices submitted by
two different employees. The invoices were submitted as exhibits and reflect a
change in billing practices where the invoice began to identify when individual
therapy was offered by a psychotherapist under the supervision of a registered
psychologist. Previously, only the psychologist was identified, even where the
therapy was delivered by a psychotherapist under supervision. These invoices
were all paid. In and around mid 2017, the billing psychologist began to include
their name and the name of the supervised psychological service provider. The
invoice continued to bill at an inclusive hourly rate for the service provided, with no
delineation between the cost of the therapy and the fee attributable to supervision
services. These charges were not reimbursed by Manulife.
[19] On cross examination, Ms. Smith admitted that the supervised services of student
psychologists, who are not yet registered but are supervised by registered
psychologists, are allowed under the provincial plan. She further agreed that
supervision was a service within the scope of a psychologist’s licence. Ms. Smith
admitted that she was not aware of relevant language in the contract or any other
document that defined allowable services, restricted services to those provided by
the psychologist directly to the client or that otherwise removes or limits supervision
as a covered service. Ultimately, she agreed that this was Manulife’s interpretation
of what services were covered under the plan.
[20] In redirect, Ms. Smith observed that there was an important distinction between
students who were supervised by a registered psychologist and the supervision of
registered psychotherapists. Many students must be supervised to offer
therapeutic services, whereas psychotherapists do not. Psychotherapists have
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their own regulatory body and can be registered to provide treatment without
supervision. In her view, the service rendered by a supervising psychologist was
not to the client receiving treatment, but to the psychotherapist who was being
supervised.
[21] A letter dated May 8, 2019, was also introduced in which the Employer advised of
changes to insured benefits in the recently ratified collective agreement. It noted a
change to the hourly cap for the services of Psychologists and Social Workers with
a Master’s Degree in Social Work “who renders a service within the scope of
his/her license” effective April 1, 2019.
Submissions
[22] The Union maintained that the services of a psychologist include those provided
when supervising another individual providing psychotherapy. ‘Services’ are not
defined in the collective agreement, and therefore the plain and ordinary meeting
should apply. By referring to ‘services’, plural, all services should be covered. That
is, any service provided by a psychologist in relation to a member claimant should
be approved for reimbursement.
[23] The Union argued that accepting the Employer’s position that only face-to-face
services are covered requires that qualifiers be read into the collective agreement
that do not exist on the face of the contract. The Employer’s interpretation carves
out certain services provided by a psychologist, allowing some and not others. The
Union asserts that this is not what the collective agreement says on its face: there
is no restriction on allowable services. Therefore, the Union maintains that its
position should be preferred.
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[24] In the Union’s submission the language of the collective agreement is clear, it does
not limit the type of services covered, and therefore it is not necessary to consider
extrinsic evidence to determine the intention of the parties. If it is ambiguous, and
extrinsic evidence admissible, that evidence also favours the Union’s interpretation.
The governing legislation, CPO Standards, and Practise Advisory all contemplate
supervision as a service that can be provided by a psychologist.
[25] The Union suggested that its position is also consistent with the evidence of Dr.
Douglas and the Employer’s own document, where in a letter to the insurer
advising of changes to benefits it refers to services within the psychologist’s scope
of service, without any other qualifier. In the Union’s submission, this contemplates
a broader interpretation than the one the Employer is advancing now.
[26] In summary, the Union argued that whether the language of the collective
agreement is unambiguous or ambiguous, the language agreed to by the parties
and the extrinsic evidence both favour the Union’s interpretation that covered
services include a number of services that might be offered to clients, even if it
does not involve one-on-one treatment.
[27] The Union relied on the following authorities: OPSEU (Hymers et al.) and Ontario
(Ministry of Natural Resources), 2003 Can LII 52916 (ON GSB), (Kirkwood);
OPSEU (Wild) and Ontario (Ministry of Community Safety and Correctional
Services), 2017 Can LII 30323 (ON GSB), (Harris); Peel (Regional Municipality)
Police Services Board v. Peel Regional Police Association, 2001 CarswellOnt
5995, 100 L.A.C. (4th) 73, (Kirkwood).
[28] The Employer submitted that there was no ambiguity in the collective agreement
and that a plain reading of the provision supports its position that psychologists
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cannot bill under the plan for supervised services. In the alternative, if the relevant
provisions of the agreement are ambiguous, the extrinsic evidence favours the
Employer’s interpretation. Lastly, the Employer submitted that the Union’s
interpretation would lead to an outcome with significant administrative burdens.
[29] Counsel pointed out that the collective agreement includes an hourly and annual
cap on fees for most employees on allowable “charges for the services of a
psychologist”. In the Employer’s submission, it would be wrong to focus only on
‘services’ in interpreting the breadth of what is covered under the agreement. It is
important to note that it is preceded by ‘charges’, which is capped at $25/$40 per
half hour. On the Employer’s construction, the charges are necessarily tied to a
period that is directly connected to delivering services to the employee.
[30] Furthermore, the parties specifically renegotiated to allow coverage for an
additional service provider such that the services of designated social workers are
now covered. They did not include psychotherapists. Ultimately, it was the position
of the Employer that a member only has the right to claim services provided to
them from included practitioners. In cases where the psychotherapist, a non-
included practitioner, provides a psychological service to the member, their service
cannot be reimbursed.
[31] In the alternative, if the provision is ambiguous, the Employer argued that the
extrinsic evidence supports its interpretation. It further suggested that the
reference in its letter to ‘services within the scope of a psychologist’s license’ must
be read in conjunction with the Psychology Act, 19916 where supervision is not
6 The Psychology Act, 1991, c. 38, s. 3: The practice of psychology is the assessment of behavioral and
mental conditions, the diagnosis of neuropsychological disorders and dysfunctions and psychotic,
neurotic and personality disorders and dysfunctions and the prevention and treatment of behavioural and
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mentioned under Scope of Practice. Similarly, the Psychotherapy Act, 2007, c. 10
defines the scope of practice for psychotherapists 7 and does not mention
supervision. These Acts make it clear that both professions can perform the
controlled act of psychotherapy. In the Employer’s submission it was not within the
parties’ intention that a supervisory role would be covered under Article 39.2.6 and
67.2.6. Accepting the Union’s interpretation effectively expands the list of service
providers who are covered under the collective agreement.
[32] The Employer maintained that the evidence of Dr. Douglas and Ms. Smith did not
undermine the strength of its’ argument. It posited that there were important
differences between a psychologist supervising students within their own regulatory
College and supervising members of another regulated profession. In the
Employer’s submission, one must distinguish students who cannot legally perform
services on their own from independent providers who are fully authorised to offer
psychotherapy without supervision. In this regulatory and legislative framework, it
makes sense for the insurer to differentiate between the supervision of students
training to become registered psychologists and psychotherapists who are entitled
to provide services autonomously, with no regulatory requirement that they be
supervised.
[33] Lastly, the Employer submitted that the interpretation sought by the Union would be
very difficult and cumbersome to administer, it may also open the door to potential
mental disorders and dysfunctions and the maintenance and enhancement of physical, intellectual,
emotional, social and interpersonal functioning. 1991, c. 38, s. 3.
7 The practice of psychotherapy is the assessment and treatment of cognitive, emotional or behavioural
disturbances by psychotherapeutic means, delivered through a therapeutic relationship based primarily
on verbal or non-verbal communication. 2007, c. 10, Sched. R, s. 4.
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mischief and fraudulent claims. Although not entirely unfeasible, it would be more
costly for the Employer, and would require revisions to the forms and invoices. The
current invoices do not disclose the time spent by the psychologist supervising the
psychotherapist or the rate charged for supervision. In the Employer’s view, this is
a further indication that supervisory services were never intended to be
reimbursed. While it conceded that some services, such as diagnostic testing might
be covered, this did not extend to supervision.
[34] The Employer relied on the following authorities: Brown, D.J.M, Beatty, D.M.,
Beatty, A.J. (Eds), Canadian Labour Arbitration, 5th ed CH:4:2100 – The Object of
Construction: Intention of the Parties and 4:2000 Extrinsic Evidence; OPSEU
(Vitorino et al.) and Ontario (Ministry of Government Services), 2010 Can LII 72671
(ON GSB). (Abramsky); Canadian Office and Professional Employees Union v
Canada Employment and Immigration Union, 2019 CanLII 52266 (Trachuk); S.M.Z.
v Aviva Insurance Company-003310/AABS, 2020 CanLII 27401(Norris).
[35] The Union replied that if the language used in the collective agreement is
unambiguous, there can be no reliance on extrinsic aids, including legislation.
Rather, the intention of the parties should be gleaned from the words used. If that
is the focus, the Employer’s interpretation cannot prevail: the collective agreement
expressly refers to “services”, plural, without limits. Accepting the Employer’s
interpretation would require that specific services be carved out of the general
provision that ‘services’ are eligible for recovery.
[36] If it is ambiguous, the extrinsic evidence, when viewed as a whole, also supports
the Union’s position. Counsel for the Union further argued that the evidence of Dr.
Douglas established that the supervision extends beyond the supervisee. The
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client receiving treatment becomes a client of the psychologist, with the
psychologist reviewing the file, looking at the record, diagnosing the client and
communicating a diagnosis to them. Moreover, counsel submitted that the Act and
Regulations should not be read narrowly in defining the scope of a psychologist’s
license. It would ignore the regulatory framework that has been created through
which professional standards are established and maintained.
[37] With respect to possible administrative burdens or anomalies, the Union submitted
that the suggestion about increased costs is surprising given the evidence that
these claims were historically paid before the insurer became aware that the
therapy was performed by a supervised psychotherapist. Nor should heed be given
to the argument that this opens the door to claims being submitted for unauthorised
services. The psychologist would be putting their own license on the line if they
committed fraud by misrepresenting the extent of their involvement.
[38] Finally, the Union maintained that the cases relied upon by the Employer do not
address the interpretive issue in this case.
Analysis
[39] The sole issue before me is whether Articles 39.2.6 and 67.2.6 include
reimbursement for the supervisory services of a psychologist or are they restricted
to psychological services that are provided directly to the employee.
[40] Both parties argued that there was no ambiguity in the collective agreement and
that there was therefore no basis to consider extrinsic evidence. They also agreed
to tender extrinsic evidence in the event that I determined that there was an
ambiguity.
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[41] While never an easy task, the arbitral jurisprudence on the admissibility of extrinsic
evidence can be reduced to a simple question: can the intention of the parties be
discerned solely on the language used in the collective agreement? If it can, then
extrinsic evidence is not admissible.
[42] In Hymers, supra, Vice Chair Kirkwood outlined the circumstances when extrinsic
evidence can be used as an aid to interpret the collective agreement:
Therefore, the basic presumption upon which contract interpretation rests,
is that the parties, when reducing an agreement to writing, set down the
terms and conditions upon which they intend to rely. Accordingly, in order
to ensure that the integrity of the contract remains intact, the general rule
in contract interpretation prohibits the use of extrinsic evidence to interpret
the agreement. However, as parties do not always express themselves
clearly and without ambiguity, in order to give effect to the parties’
intentions, where the written document is found to be ambiguous, extrinsic
evidence is admissible to clarify what was meant by the parties when they
constructed the agreement in order to give effect to the parties’ intentions.
Where there is an ambiguity, such that there is more than one meaning on
the face of the document a patent ambiguity arises, and extrinsic evidence
can be used as an aid to interpretation. A latent ambiguity may arise in the
application to the terms of the agreement to the facts, or where
circumstances render the meaning of the document ambiguous. As a
result, as the intention in contract interpretation is to give effect to the
parties’ intentions as they expressed themselves or intended to express
themselves in an agreement, extrinsic evidence has been allowed to
clarify what was meant by the parties when the parties were constructing
the contract.”8
[43] There are, of course, also general canons of construction that will guide an
arbitrator when interpreting a collective agreement. These guiding principles are
well summarised by Vice Chair Harris in Wild, supra:
It is well understood that the interpretation of a collective agreement is an exercise
in considering the language chosen by the parties to express their intentions. As
set out in Willis & Winkler On Leading Labour Cases, supra, at I:1 I: Interpretation
of Collective Agreements, the following principles are most prominent:
8 Hymers, supra, at p. 10.
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• The goal of the interpretation exercise is to discern the parties’ intention.
• The meaning of the collective agreement is sought in the express
provisions of the agreement.
• The language should be viewed in its normal and ordinary meaning.
• The purpose of the provision should be considered.
• Words should be interpreted harmoniously within the overall scheme of
the collective agreement, the object of the agreement, and the intention
of the parties.
• It should be presumed that all words used were intended to have
meaning.
• The text of the agreement governs, and, in the absence of any ambiguity,
the words used by the parties must be given effect.9
[44] Vice Chair Abramsky provided an equally succinct summary in Vitorino et al, supra,
noting that the “fundamental objective is to determine the intent of the parties who
agreed to the language.”10. In addition, she confirms the view first espoused by
other arbitrators that when a monetary benefit is at issue, it must be agreed in
clear and unequivocal language, and not left to “emerge obliquely or by
inference”. 11
[45] I turn then to Articles 39 and 62. Are they ambiguous or have the parties expressed
themselves clearly? In my view there is no ambiguity on the face of the collective
agreement or arising when applied to the facts of this case. The parties provided
that ‘charges for the services of a psychologist’, which now includes a Master of
Social Work, will be paid subject only to an annual cap for all employees, and an
hourly cap for all employees except correctional officers. The plain and ordinary
meaning of ‘charges’ includes fees for services, with no inherent limit on the kind of
9 Wild, supra, at para. 18.
10 Vitorino, supra, para 10.
11 Supra, para. 11, citing Re Noranda Mines Ltd. (Babine Division) and United Steelworkers of America,
Local 898 [1981] 1 WLAC 246, 261 (Hope).
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services charges. The parties referred to services, plural, which clearly
contemplates reimbursement for more than a singular service. They did not
otherwise define or limit the services that will be paid, beyond providing for specific
monetary caps. Nothing in the relevant articles directs, or even implies the
limitation advanced by the Employer. The Employer acknowledged that a range of
services, such as treatment, testing and supervision in some circumstances are
covered by this provision of the collective agreement. If charges for these services
are permitted, I fail to see how the provision can be read to nonetheless limit
allowable services to those that involve a face to face, therapeutic relationship
simply because another registered provider is involved in the delivery of treatment.
[46] The interpretation put forward by the Employer requires me to make inferences that
are unsupported by the language of these specific provisions of the collective
agreement, or the collective agreement when read as a whole. It demands that
specific limits be imposed that are not mentioned, implied, or prescribed by the
provisions drafted and agreed to by the parties. While I understand the reason the
Employer seeks this restriction, this is an issue it will need to address at the
bargaining table. Their interpretation is an effective amendment to the agreement,
inserting a limit that is not prescribed by the plain and ordinary meaning of the
provisions governing the reimbursement of fees charged by a psychologist.
[47] Counsel for the Union made it clear from the outset that they were not seeking
payment for the services of psychotherapists. I agree that those charge would
clearly be outside the bounds of entitlement. Nor should psychologists be permitted
to indirectly charge for the services provided by a non-included provider. However,
where two services are being offered – by the psychologist through supervision
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and direct therapeutic treatment by a psychotherapist - there is nothing that
precludes reimbursement of the time the psychologist spends supervising the
client’s treatment. Bearing in mind the general canons of construction and the
principles that govern the reliance on extrinsic evidence, I have concluded that
Articles 39.2.6 and 67.2.6 provide coverage for the charges of a psychologist that
can be attributed to supervision.
[48] The Employer suggested that the psychologist is providing a service to the treating
psychotherapist, who is in turn rendering their services to the client covered under
the plan. I do not agree. This is not a zero-sum equation; both can be true. While
the psychologist may well be offering guidance, and support to the psychotherapist,
they are also providing a service to the client receiving treatment. A registered
psychologist has different, and more extensive, training, qualifications, and
expertise than a psychotherapist. They also have a broader scope of practice.
Inevitably, this allows them to enhance the treatment delivered by supervised
psychotherapists to their joint clients. They are also available to diagnose and
communicate a diagnosis if the need arises. Even where no diagnosis is required,
the client benefits directly from the treatment guidance and direction offered by the
supervising psychologist.
[49] Counsel made much of the reference to services and billing limits tied to half hour
increments, suggesting that this necessarily implied that the services must be
provided directly to the employee claiming reimbursement. While I agree that the
charges must relate back to a specific period where services were provided, that
does little to assist in interpreting what kind of services can be provided, which is
the issue before me. The service must be quantifiable on an hourly basis; but that
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is a mechanical or administrative question, not a principle that aids in the overall
interpretation of whether this specific service is covered.
[50] I recognise that the invoices provided by psychologists to their clients may not
currently include this information, however, there is nothing about the inherent
nature of the task that prevents the recording of time solely attributable to the
supervision function. A generic invoice for therapeutic services will be sufficient
where the therapy is provided by the psychologist. The Employer, through the
insurer, is free to request a modified invoice with more detailed billing information if
it deems that necessary. While recognising that this will necessitate some changes
to the administration of benefits, I am not persuaded that the burden is of such
magnitude that it is unfeasible.
[51] Nor do I think that the addition of social workers as an included service provider is
of much assistance. As I have already pointed out, it is clear, and not disputed by
the Union, that the services of a psychotherapist are not included under these
provisions. However, I must consider a distinct issue - are there limits on the kind
of services that a registered psychologist can provide, recognising that, generally,
their services are specifically included.
[52] Similarly, the cases relied on by the Employer do not offer much guidance on the
issue before me. Neither case discuss whether psychotherapy supervised by a
psychologist should be allowed under an insured benefits plan as defined in a
collective agreement. Moreover, both appear to accept that psychologists can
serve in a supervisory role with therapy delivered to the client by a psychotherapist.
[53] Chartrand, supra, was a discharge grievance where the grievor had allegedly
submitted fraudulent claims for benefits. The reimbursement for psychotherapy
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delivered by a social worker under the clinical supervision of a psychologist was
one of many instances of alleged fraud. The grievor had been specifically told that
therapy provided under the supervision of a psychologist might be acceptable, but
rather than submit a claim that clearly identified the service as supervised therapy,
she submitted claims that said the therapy was provided by a psychologist. In
upholding the termination, Arbitrator Trachuk found that the grievor knew that she
was not covered for psychotherapy provided by a social worker and deliberately
submitted claims as if the therapy was provided by a psychologist, concluding that
the grievor intentionally misled the insurer.
[54] S.M.Z. and Aviva Insurance Company, supra, is a decision of the License Appeal
Tribunal. The applicant was involved in a motor vehicle accident in which she
suffered psychological injuries. She obtained two psychological treatment plans
and sought payment from the insurer. The issue before Adjudicator Norris was the
rate at which the services should be reimbursed. The therapy was provided by a
psychotherapist, a provider not specifically included under the prescribed
guidelines. The insurer offered reimbursement up to the maximum allowable rate
for unregulated providers. The applicant sought reimbursement at the higher rate
allowed for psychologists, maintaining that her therapy was under the supervision
of a psychologist.
[55] Ultimately, the Adjudicator in S.M.Z. agreed with the insurer and found that there
was insufficient evidence to support the applicant’s position that she received
treatment from a psychotherapist under active supervision of a psychologist. Adj.
Norris went on to conclude that another reason to rule against the applicant was
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that the treatment plan, upon which entitlement was based, proposed psychological
treatment performed by the psychologist and no one else.
[56] Clearly, the issue before me is materially different than those considered in either
of these cases. It is noteworthy, however, that Chartrand confirms the evidence of
Ms. Smith that there is no industry wide practice refusing to cover fees of a
psychologist where they are providing supervisory services and are not themselves
providing psychotherapy directly to the client.
[57] While both parties argued that there was no ambiguity in the collective agreement,
although reaching different results, they agreed that the extrinsic evidence
reviewed earlier in this award would be tendered. I have set out my reasons and
conclusion that there is no ambiguity in the collective agreement, however, if I am
wrong and there is a latent ambiguity in applying the collective agreement to the
facts in this circumstance, I find that the extrinsic evidence also supports the
interpretation advanced by the Union.
[58] The regulatory framework under which registered psychologists operate recognises
supervision as within a psychologist’s scope of practice and delineates the
responsibility of supervisors of psychological service providers. The client receiving
therapy is considered to be a client of the supervising psychologist, the
psychologist must sign all reports and correspondence, and the client must be
advised that all services are reviewed with and conducted under the supervision of
the supervisor. Supervision solely for the purpose of third-party payment is strictly
forbidden. Failure to adequately supervise can result in a finding of professional
misconduct threatening the member’s license.
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[59] The evidence of Dr. Douglas confirmed that supervision is a service provided to the
client receiving psychotherapy and that the psychologist has full legal and ethical
responsibility for the client. He further outlined the responsibilities of the
supervising psychologist, including remaining up to date on the care of the client,
reviewing the client file with the psychotherapist, meeting with the supervisee, and
giving direction on treatment. Moreover, the psychologist can diagnose and
communicate a diagnosis to the client, which is outside the scope of practise of a
psychotherapist.
[60] Ms. Smith, on behalf of the insurer, acknowledged that she did not know whether
the insurer’s contract was consistent with the collective agreement. She agreed
that supervision was a service of a psychologist and that some supervision by a
psychologist, the supervision of students, was allowed. She further admitted that
that Manulife’s interpretation that the supervision of a psychotherapist was not
allowed was based solely on its view that one-on-one, direct engagement was
required under the provincial plan.
[61] There is ample evidence that supervising the delivery of one-on-one treatment by a
psychotherapist is a service within the scope of a registered psychologist’s licence.
This is demonstrated by the CPO standards, the evidence of Dr. Douglas, Ms.
Smith and appears to be generally accepted in the industry. It is immaterial that
‘supervision’ is not mentioned in the Psychology Act. That legislation defines who
can hold themselves out as a person qualified to practise as a psychologist in
Ontario. It is very brief and explicitly recognises that psychologists must be
members of the College of Psychologists of Ontario to practice in the province. I
agree with the Union’s submission that the definition of scope of practice found in
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this Act must be read in the context in which it is offered and does not override the
broader definition offered by the CPO.
[62] The evidence further supports a finding that where a registered psychologist
supervises therapy delivered by a psychotherapist, the client receiving therapy is a
client of the psychologist, as well as of the psychotherapist. The psychologist has
ongoing legal, professional, and ethical responsibilities of care to the client. They
must monitor the client’s progress and the delivery of their treatment. Moreover, the
benefit to clients of supervised psychotherapists accrues directly to them. A
registered psychologist can perform services beyond the scope of practice of
psychotherapists, including diagnostic assessments, diagnosing psychological
conditions, and communicating diagnoses to the client. They add value by virtue of
their training, expertise, and ability to supplement the treatment delivered by the
psychotherapist.
[63] Finally, there is no standard practice within the insurance industry with respect to
whether these charges are reimbursed. This was acknowledged by Ms. Smith and
affirmed in Chartrand and S.M.Z., cases submitted by the Employer. Ms. Smith
further acknowledged that Manulife decided that a psychologist must provide
services directly to the client to be eligible for reimbursement. This decision was
not based on the language used in the contract it had with the province or in the
collective agreement that codifies the entitlement.
[64] Considering all of the extrinsic evidence, I am satisfied that supervision by a
psychologist is a service to the client, not just the provider being supervised, which
imposes professional obligations and legal responsibilities on the psychologist. The
CPO Standards demand that certain tasks be performed by the supervising
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psychologist, tasks that require the supervising psychologists’ time. I see no basis
on which to preclude them from charging for their time and employees being
reimbursed for these charges under Articles 39.2.6 and 67.2.6 of the collective
agreement.
[65] For all these reasons, the grievance is allowed. The parties made a joint request
that related individual grievances be left with them to address in accordance with
the interpretation set out in my award. These matters are remitted to the parties;
however, I will remain seized in the event that an issue arises with respect to the
implementation or interpretation of this award.
Dated at Toronto, Ontario this 29th day of November 2021
“Reva Devins”
______________________
Reva Devins - Arbitrator