HomeMy WebLinkAboutBark 03-02-06
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IN THE MA TIER OF AN ARBITRATION UNDER SECTION
48 OF THE LABOUR RELATIONS ACT, 1995 (as amended)
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BETWEEN
Ontario Public Service Employees Union,
Local 511 ("the union")
AND
Surrey Place Centre ("the employer")
And in the matter of the grievance of Scott Bark, who claims that
he has been denied certain benefits to which he is entitled under
the terms of the collectjve agreement and the-Ontario Human
Rights Code.
BEFORE: R.O. MacDowell ( chair)
M. Blight (employer nominee)
P. Munt-Madill (union nominee)
APPEARANCES:
For the union: John K. Phillips ( counsel)
Michelle Popynick
Scott Bark
For the Employer: Brian'D. Mulroney ( counsel)
Elaine Gi vertz
A hearing in this matter was held in 'roronto, Ontario, on October
10 2002
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AWARD
I - Introduction: What this case is about, in brief.
This arbitration proceeding arises from the grievance of Scott Bark, who claims
that he has been denied certain benefits to which he is entitled under the terms of the
collective agreement and the Ontario Human Rights Code. The issues and the parties'
positions, can be summarized quite simply.
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The grievor, Scott Bark ("Scottll) is an employee of Surrey Place. His spouse)
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Michelle Popynick ("Michelle") is also an employee of Surrey Place. The union contends
that under the program of insurance that Surrey Place provides for its employees, Scott is
entitled to "family benefits coverage" - which is to say, an insurance arrangement that
provides Scott with Hpersonal coveragell for himself, as well as lIdependent coverage" for
Michelle. fudeed, the union asserts that Scott and Michelle are both entitled to IIfamily
benefits coverage".
The employer replies that Scott cannot have "family benefits coveragell (with
Michelle as his "dependentll), because under the current group insurance plan, Michelle
already has her own "personal coverage". Michelle already has access to all of the
benefits specified in the collective agreement, and can already make her own claim for
reimbursement for any expenses that she incurs. The employer maintains, therefore, that
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Scott cannot have "overlapping family benefits coverage", nor are the two employees
both entitled to their own, separate, "family coverages".
We shall have more to say later about the nature of "family benefits". For present
purposes it suffices to say that "family benefitslt is an insurance arrangement in which an
employee can file claims on hislher own behalf, and also on behalf of a spouse and
dependent children, so that insurance coverage extends to all members of the "family".
However, because IIfamily benefits coveragett involves more potential claimants than
lIindividual coveragell does, this form of insurance costs the employer more, per
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employee, than lIindividual. coveragell (see the cost figures set out below). Accordingly,
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implicit in any demand for I1family benefits coverage" is a demand that the employer
assume this higher cost.
In the instant case, the tlfamily" for which Scott seeks "family benefitsll, consists
only of himself and Michelle. There are no dependent children. The general background
was put before us in the form of an Agreed Statement of Facts:
1. The Grievor, Scott Bark, is a member of the Ontario Public Service
Employee Union ("QPSEU"), Local 511, and is employed as a senior
behaviour therapist with the employer, Surrey Place Centre C'Surrey").
Scott Bark commenced employment with Surrey in August 1992.
2. The employment relationship between Scott Bark and Surrey is
governed by a collective agreement dated January 11, 2002 ("Collective
Agreement"), set out at tab 2 of the OPSEU Arbitration Brief.
3. In 1994, Scott Bark began cohabiting with another employee of
Suney, Michele Popynick. In 1996, Michele Popynick declared her
marital status and claimed family (rather than single) benefits under the
terms of the Collective Agreement in relation to medical, dentat and other
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benefits provided thereunder. Surrey accepted the declaration and
provided family benefits to Michele Popynick. The declaration was
accepted by Ann Grech, a junior human resources assistant. Scott Bark
continued to claim for single benefits.
4. ill June, 2001, Scott Bark applied for family benefits. Surrey
denied family benefits and, further, changed the designation of both Scott
Bark and Michele Popynick to 'single'. This arbitration arises as a result
of the denial of family benefits to Scott Bark, as set out in the Grievance
Form, dated February 4,2002, at tab 1 of the OPSEU Arbitration Brief.
5. Under the terms of the Collective Agreement, and the associated
group insurance benefits were provided by Standard Life, as set out in the
Group Insurance Benefits Booklet issued by that insurer, at tab 3 of the
OPSEU Arbitration Brief.
6. The cost of the premiums associated with the benefits provided
under the Collective Agreement are as follows:
a. Health Premium (l00% paid by Surrey):
(i) Single: $61.87 per month
(ii) Family: $196.54 per month
b. Vision / Hearing (50% paid by Surrey):
(i) Single: $3.905 per month
(ii) Family: $12.47 per month
c. Dental Premium (100% paid by Surrey):
(i) Single: $36.81 per month
(ii) Family: $106.93 per month
d. Total (paid by Surrey):
(i) Single: $102.585 per month
(ii) Family: $315.94 per month
On July 1, 2002, these premiums increased.
7. The annualized premium costs, for various scenarios involving
couples, prior to July 2002, are as follows:
(a) Two Employees, each claiming single benefits: $2,462.04
per annum;
(b) Two Employees, each claiming family benefit'): $7,582.56
per annum;
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(e) Two Employees, one claiming family benefits: $3,791.28
per annum.
8. The policy manual issued by Surrey is silent in relation to the
issues raised on this arbitration.
9. There is no past practice by Surrey relating to the issues raised on
this arbitration.
10. Further, (sic) in 2001, the Canadian Life and Health Insurance
Association me. ("CLHIA") issued a document titled "A Guide to
Supplementary Health Insurance", set out at tab 4 of the OPSEU
Arbitration Brief.
11. CLHIA also issued a "Medical Note" in May, 2002, which detailed
issues relating to Co-Ordination of Benefits, set out at tab 5 of the OPSEU
Arbitration Brief.
12. Still further,. CLHIA issued CLHIA Guideline No. 102 -
Coordination of Benekts, revised November, 1990, as set out at tab 6 of
the OPSEU Arbitration Brief.
13. The documents found at tabs 4 - 6, inclusive, of the OPSEU
Arbitration Brief [and referred to in the preceding three paragraphs lO-
13: the insurance industry discussion documents] are only tendered to
explain the insurance industry practice with respect to consideration of
benefits. It is not intended that the Board draw any inference from them
as to whether Surrey is obligated to provide internal coordination of
benefits in this case. Prior to the development of an insurance industry
practice with coordinated benefits, it was possible for the same claim to be
submitted to, and paid by, each of two insurance plans. Coordination of
benefits was intended to eliminate this practice.
14. Both the Grievor and the Employer agree that the Arbitration Panel
is properly constituted, that neither party is aware of any irregularity in
relation to the appointment or procedure leading up to the arbitration and
that the Arbitration Panel has jurisdiction to hear and detennine the issues
raised on this grievance, pursuant to the tenus of the Collective
Agreement.
The union asserts that Scott is entitled to his own Ilfamily benefits coverage"
becausc hc is an cmploy~~ with a "~PQ1,l~G" (Michelle). In the union's submission, those
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are the only requirements for IIfamily benefits coveragett under the collective agreement;
and Scott meets both of those criteria. The union argues that it would be a breach of the
collective agreement not to give Scott ttfamily benefitstt. The union says that the
employer has no discretion in this regard, nor is the employer entitled to adopt a cost
reduction upolicyll that contravenes the collective agreement.
In the union's submission, it does not matter that Michelle is also an employee of
Surrey Place, who already has benefits coverage. Nor does it matter that Michelle's
coverage already gives her access to the benefits prescribed in the collective agreement
(vision care, dental plan, etc.). The union argues that, under the terms of the collective
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agreement, Scott's position has to be looked at on its own, without regard to the position
of his spouse. Michelle's insurance arrangements are irrelevant.
In the union's submission, there are good reasons for seeking "family benefits
coverageH for both employees, because such double coverage. allows them to
t1coordinatell th~ir benefits claims, and thus enhance the value of the benefits payable to
both of them.
On the union's reading of the collective agreement, Scott and Michelle are .each
entitled to separate "family benefits coverage"; so that each employee-spouse should be
listed as a "dependent" of the other for claims pwposes. The union says that with two,
separate, "family coverages", both employees can claim reimbursement for any expense
incurred by either of them - thereby, between the two of them, gcnerating a greatcr
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subsidy (for the cost of eye glasses, say) than is mentioned in the collective agreement, or
is generally available to other, "urunarried", employees. In the umon's view, overlapping
"family coverage", provides an opportunity to make two valid claims for each expense
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incurred - what the union calls the "coordination of benefits".
The UIUon submits that if both employee-spouses have their own "family
coverage" they can, together, exceed the dollar limits attached to the individual items in
the benefit,plan. They can also blunt the "coinsurance features" of some of the insured
benefits. With separate "family benefits coverage" each employee can file a separate
claim for reimbursement - potentially doubling the monetary payout.
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The union argues. ,that .family benefits coverage is a contractual right of both
employees, and cannot be denied. Moreover, the union submits not only that this is the
correct reading of the collective agreement, but also that it would be unlawful - a breach
of the Human Rights Code - for the collective agreement (or the benefit plan) to provide
othenvise.
The union asserts that the employer is not entitled to deny "family benefits" to
Scott, merely because his spouse, Michelle, is also an employee with benefits. In the
unionts submission, such denial of "family benefitstl is rooted in a prohibited ground of
d{scrimination: spousal status and identity. Scott's entitlement cannot be "reduced" (as the
union puts it) because of the choices, identity or insurance status of his spouse. It is
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unlawful to make either spouse's benefits entitlement turn on the position of the other, or
to take into account the spousal status ofthe two employees.
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The union points out that if one of the spouses worked elsewhere, the two spouses
would be able to coordinate their benefits; and in the lUlion's submission, they cannot be
put in a worse position because they happen to work for the same employer. The union
submits that if the two spouses can pursue such "external coordination" of benefits, then
the law requires the "internal coordination of benefits" as well. Or to put the matter
another way: an employer cannot frame its benefits program so as to exclude that
possibility.
In summary, the union says that each employee's benefits entitlement must be
assessed on his/her own, and without reference to the position of ms/her spouse. The
position of one's spouse is an irrelevant and unlawful consideration - lUlsupported by the
collective agreement, and contrary to the Human Rights Code. Accordingly, Scott is
entitled to "family coveragel1 regardless of what happens to Michelle, and vice versa; and
because each of them is entitled to separate family coverage, each of them can make
claims under their own separate coverage.
The employer does not agree with the union's interpretation of the collective
agreement or the Human Rights Code.
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The employer submits that there is no obligation to provide (or pay for) a
"separate family coverage" for ScottJ when his spouseJ Michelle, is already covered by
the group plan. Since both employees are members of the same group to which the
benefit plan appliesJ Michelle cannot be both an insured employee in her own right, and a
dependent of someone' else - particularly when the purpose (so the union argues) is to
achieve a greater level of benefits than other members of the group (including other
spouses). The employer submits that the agreement does not contemplate that scenario;
nor is the employer obliged to shoulder the additional cost that Scott's "family benefit"
arrangement would entail.
As the employer sees it: what Sco.tt and Michelle wish to accomplish is IIdouble
reimbursement" - parallel claims by both spouses, in an effort to achieve a greater level
of benefits than is contemplated by the collective agreement. In the employer's
submission, that scenario is simply not contemplated by the collective agreement, or by
the benefit plan. It is not something that the union has bargained for.
The employer submits that under the program of benefits negotiated with the
union, all of the employees in the bargaining unit, are entitled to the same benefits for
themselves, and for each of their dependents. However, it is the benefits to which
individuals are entitled - not a particular category of insurance coverage. To focus on
fltype of coverage" is both erroneous and a red herring - it disregards the purpose of the
insurance arrangement (which is to provide defined benefits), and it overlooks the
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employer's right to arrange a cost effective g[!;lliJ2 insurance plan, that fairly meets that
purpose.
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The employer submits that its only obligation under the collective agreement, is to
arrange a &!:Q!!Q insurance plan that delivers the" negotiated benefits, to the identified
beneficiaries (employees and their dependents); then to pay the premiums for such plan.
So long as the group plan delivers the benefits negotiated, the union and the employees
have nothing to complain about. Nor do they have any right to control the way in which
the plan works, because the selection of the carrier and the mechanics of the plan are left
to the employer (who pays most of the cost) or the insurer to decide - provided always
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that the plan delivers what the Union has bargained for.
The employer points out that the benefit entitlements are specified in considerable
detail, and there are a number of conditions, and dollar limitations attached to each one.
In the employer's submission, these limitations apply equally to all employees and to
each of their dependents - Le. to all "insured persons". They also apply whether or not
certain employees happen to be "spousesl1 or "married" to each other.
In the employer's submission, each of the benefits is personalized to the individual
in need of the subsidy (whether employee or dependent); and neither the collective
agreement nor the benefit plan, permit the kind of Itdouble claim" that the union proposes.
On the contrary, each employee and each dependent is entitled to the same subsidy, for
the particular costs incurred '. up the limit that the union has bargained. No one can
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receive double that amount, nor can overlapping claims avoid the "caps" or "coinsurance"
features that are attached to so many of the benefit items.
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In the employer's submission, the employer is not obliged to provide 'lcoverage"
that facilitates such dual claims, and this collective "agreement does not in fact do so.
In the employer's view, its policy with resp~ct to employee-spouses is really quite
simple: Scott and Michelle can either be treated as individuals, with "individual
coverage"; or one of them (the employer doesn't care which one) can have "family
coverage:l. ~us, if Scott and ~ichelle wish to be treated as individuals, without regard to
their spousal relationship, they can be so treated. Alternatively, iftheyare "spousesll, in a
"family/marital relationship", then that status can also be recognized, and they can have
one "family coverage" for this one, nuclear, "family".
In the employer's submission, Scott and Michelle are not entitled to "two,
separate, family benefit coverages", nor is Scott entitled to "family coverage" applying to
Michelle, while Michelle retains her own "single coverage", Indeed, it is misleading to
even use that terminology, when it is not "coverage", but rather particular benefits, that
have been negotiated, and the employer has been left to make the insurance
arrangements. Employees are entitled to the negotiated subsidies - not some particular
insurance arrangement that facilitates double claims - and the kind of "coordination of
benefits" that the union seeks, is not supported by the collective agreement.
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The employer submits that the collective agreement provisions are quite clear in
this regard. However, if there is any ambiguity in that language, such ambiguity can be
resolved by looking at the benefit plan itself - a plan which has been in place for many
years, and forms the backdrop against which, it is said, the language of .the agreement
should be read.
The employer points out, for example, that where there is a dollar amount or other
limitation found in the collective agreement, one finds a matching ceiling or limitation
"per insured person" (i.e. whether emplovee or devendent) in the text of the benefit plan.
The wording of the collective agreement and the wording of the benefit plan are
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completely congruent. And, as the employer puts it, these provisions, read together,
"define away" the kind of claim that the union is now making.
In the employer's submission, the language that the union has negotiated does not
support the interpretation that. the union now proposes. Nor,. is that language
"discriminatOIy' or in ?~each of the Human Rights Code . Scott and Michelle are not
being "penalized" by their relationship to each other. There is no invidious
discrimination, stereotyping, stigma, negative connotation, depreciation of status, or
arbitrary disadvantage imposed because of their marital/spousal or family relationship.
Scott and Michelle are being treated in the same way, and in the same way as the other
employees in the bargaining unit. In fact, to the extent that one employee~spouse may be
able to gain access to benefits as a udependentll ofthe other (i.e. if one of them has family
coverage listing the other as a dependent), then the "dependent" so covered actually
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avoids the shared-premium obligations and the restrictions that apply to other employees
(see for example, Articles 45.2 or 50.4 of the Agreement, which apply to ordinary
employees but would not apply to an employee with access to benefits as a Ildependentlt).
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The employer1s policy respecting family benefits not only gives both employee~spouses
access to all of the benefits, but relieves one of them of the costs and restrictions that
would attach to single coverage.
As the employer sees it: Scott and Michelle are not disadvantaged by their
spousal relationship. Rather, they are seeking through this litigation, to obtain an
advantage that is not enjoyed.by their co-workers, that the union has not negotiated, and
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that is not supported by the language ofthe collective agreement.
The employer asserts that its approach does not involve any arbitrary or invidious
distinction between employees, and does not engage the Human Rights Code at all.
Employees are neither advantaged nor disadvantaged by their spousal relationships. All
employees are treated in exactly the same way: they ~e all entitled to the specific
benefits that the union has negotiated for employees and their family members, with
whatever limits or conditions are associated with those benefits. And, so long as the
employer provides a group insurance plan that delivers those benefits - equally, to all
employees - there is no breach of the collective agreement or the Ontario Human Rights
Code.
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In the employerts submission, what matters is not the kind of coverage that an
employee has, but whether all employees have equal access to the negotiated benefits.
And here they do.
In summary then: the employer acknowledges that if Scott and Michelle are
"spousesll) and thus a "family" for benefits purposes) then they are entitled to tlfamily
coveragel1 for themselves and any children that they may have. They may also have
some options that other bargaining unit members do not have. However in the employer's
submission, they are not entitled to two, separate, IIfamily coveragesll, They can either be
treated as individuals, or one of them can carry the llfamily coverage" for both members
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ofthis one "family"..
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As will be seen from the agreed statement of facts: the benefits status of Scott and
Michelle has changed over the years, and there may have been some confusion about
how they should be treated. However) in our view) the essence of the current grievance.
and the issue that we have to determine - is the propriety of the employer's current Jl.Q./.ig.
with respect to the two employee-spouses. That is confirmed by the following exce~ts
from the employer's response to Scott's grievance, dated March 18, 2002:
When the Center first became aware that both members of the same family
were seeking to enrol in Family Benefits) sometime in the fall of 2001,
both Scott Bark and Michelle Popynick were put on notice that the Center
was lll1aware that two members of the same family were both asking for
family coverage and that the Center would be investigating the practice
and determining whether or not we would pemlit this practice. (Michele
Popynick had family coverage since April 1996.) ArOlmd the same time, a
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second family were both inadvertently enrolled in family benefits and they
were also put on notice that this enrollment was accidental and the Center
was developing a policy that would only allow two members of the same
family to each have single benefits or for one member of the family to have
family benefits..... The union claims that to deny each member of the
same family access to family coverage is discriminatory since. as a result.
they are denied the opvortunityto coordinate benefits under each other's
plan. ".. During the grievance meeting the union requested that no
changes in coverage be implemented until the final outcome of the
grievance was determined. .since the union was put on notice since last
fall that this policy was under consideration, the parties are expected to
make a detennination before April I, 2002. They may each have single
coverage or one of them may have family coverage. If no preference is
stated. then Michele Popvnick's benefit coverage for health and dental will
be changed from family to single...
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Strictly speaking, this grievance is about Scott, who now has "single coverage"
and seeks "family benefits" fof the reasons outlined above. However, we do not think that
we can properly assess Scott's right to "family coverage'" without considering the policy
on which the employer's position is based - which means looking at the situation of both
spouses (as, in fact, both counsel did in the course of argument). Nor can we consider the
unionfs discrimination argument, without looking at the relationship between the two
employees, upon which that argument is based.
IT w The position of the parties in a little more detail.
The starting point for the union is a package of benefits (Articles 39 - 51 of the
collective agreement) which must to be provided to all employees because they are
employees - and which, the union argues, must also be provided to aU employees without
discrimination. The Ontario Human Rights Code prohibits discrimination on the basis of
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marital or family status, and so does Article 3 of the collective agreement. Accordingly,
compliance with the Human Rights Code is a contractual and a statutory requirement.
The union submits that we should interpret the language of the collective
agreement in a marmer that is consistent with those requirements. To the extent that there
is any ambiguity, we should prefer the interpretation that avoids discrimination rather
than one that permits it; and if there is an operating incompatibility between what the
collective agreement provides and what the statute requires, then it is in the statute that
must prevail. Moreover, if we find such incompatibility, we can require the employer to
bring its benefit plan into cqmpliance, because Article 3 of the collective agreement
requires it, and section 48(12) '0) of the Labour Relations Act gives us the jurisdiction to
make such orders.
As we have already noted, the union argues that the language of the collective
agreement (when properly interpreted), and the Ontario Human Rights Code, both require
what the union describes as the "internal coordination of benefits" : an arrangement
whereby each employee spouse has his/her own "family coverage" under the group
insurance plan, so that each employee spouse can make insurance claims on his/her own
behalf and in respect of each other - thereby enhancing (so the union contends) the value
of the benefits available to each of them.
The union argues that, as employees, Scott and Michele are both entitled to
"family benefits coverage" because UleYQQtl! nleet the only requirement for "family
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benefitst' set out in the collective agreement [having a spouse]; and under such "family
benefit coveragett, each employee must also each be treated as a "spousal dependent" of
the other, within the meaning of the benefit plan. This means (the union says) that Scott is
entitled to be both a "claimanttt in his own right for any insured expense that he incurs,
and also a "dependent/spouselt for the purposes of Michelle's coverage, so that Michelle
can also make a claim in respect of Scott's expenses. Similarly, Michelle can make an
individual claim for any expenditure that she incurs, and Scott can make a parallel claim
in respect of that same expense, under his "family coverage".
The union's position is that Scott and Michelle can be both dependents and
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insured employees at the same time, so that both employees are entitled to seek
reimbursement under the benefit plan for any amount expended by either of them. Two
subsidy claims can be made for each expense incurred.
The union illustrates its position by the following hypothetical example.
Suppose the benefit plan covers vision care and provides a subsidy for eyeglasses
with a limit of $200. Suppose further that Scott actually incurs a cost for his eyeglasses of
$500. As the union sees it:
(1) Scott should be able to put in an insurance claim, with accompanying
receipt, and receive the sum of$200 (the benefit plan limit); and,
(2) Michelle can also put in a claim all behalf of her dependent/spouse
Scott, supported by the same receipt, and likewise receive a payment of
$200 ( the benefit plan limit).
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The union submits that by making these IIcoordinated claimsll, the couple can obtain a
payment from the plan of $400 - double the prescribed maximum.
In practical tenns, that is what the union means by the "internal coordination of
benefitsll : the two spouses IIcoordinateU their benefit claims in respect of the same
expense, so as to effectively double their coverage limits, and halve any co-insurance
requirements. The union uses the term "intemalU because both employees are members of
the same grOUp, covered by the same benefit plan.
It is common ground that if two spouses (for simplicity, IIhusbandll and "wife")
work for different employers, under different group policies, they may be able to
coordinate their benefit claims in this way - what the union describes as an "external
coordination of benefitsll, involving separate claims for reimbursement under each plan.
In fact, that situation is so common these days, that the insurance industry has a worked
out rules for how such parallel claims will be handled, and which insurance plan must be
accessed first.
Under the prevailing insurance industry rules, the separate claimants can never
recover more than the total cost of the goods or services obtained. However, they may be
able to file separate claims and receive separate payments under each insurance policy,
up to the limits prescribed in each policy. Thus, if the husband works for one company
and is covered by one group policy, and the wife works for another company with a
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different policy but covering the same items (vision care, dental etc.)) both spouses may
be able to file claims under their respective coverages - thereby enhancing the aggregate
payments to the couple.
The union submits that Scott and Michelle "are entitled to do the same thing under
the single group plan of which they are both members.
The union submits that, when properly construed, the current agreement and the
benefit plan already permit the '1intemal coordination of benefits"; and that the company
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is seeking to avoid that consequence, by arbitrarily denying one employee-spouse (Scott)
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access to "family benefits coverage" - forcing Scott to access benefits either as an
individual or as a dependent under Michelle's family coverage. That is the purpose of the
employer's policy of permitting only one employee-spouse to have "family coverage; but
it produces results which) the union says, are arbitrary and perverse: despite being a
bargaining unit employee, Scott is put to the choice of either having no coverage in his
own right (i.e. having to access benefits only as a dependent of sOJlleone else), or being
treated, singly, as if he had no spouse at all. In the union1s submission) such restrictions
are both artificial and wrong.
The union argues that the collective agreement, properly construed, does not
permit such arbitrary exclusion from family coverage; but, on the contrary, permits the
internal coordination of benefits. The agreement does not support the "cost saving policyll
that the employer relies upon to refuse Scott family benefits, nor does it limit Scott's
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choices in this way. However, the union submits in the alternative, that even if the
collective agreement language does not provide for the internal coordination of benefits,
it must do so, because to do otherwise, would constitute unlawful "discriminationU on the
basis of tlfamily" or "marital status".
The union argues that, under the Human Rights Code, the employer is obliged to
structure its benefits program so as to pennit the "internal coordination of benefits ". The
benefit plan must put employee-spouses in the same position as if one of them worked
elsewhere and was covered by a different plan. The union argues that if an llexternal
coordination of benefits II is pennitted, then the "internal coordination of benefits II must be
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pennitted as well. Otherwise, the plan is a "discriminatory", and contrary to both Article
3 of the collective agreement and the Ontario Human Rights Code.
The union submits that in order to comply with the Human Rights Code, the kind
of benefits coverage available to Scott must be the same as other employees with
spouses, regardless of the identity of his particular spouse, and regardless of where his
particular spouse happens to work u which is to say, regardless of whether his spouse is,
an employee or already has access to those same benefits. As counsel puts it: .. if the
identity of one's spouse matters, then the reason for excluding Scott from family coverage
is discriminatory and unlawful".
In the union's submission, Scott is being singled out and disadvantaged because
his spouse is an employee; for if Michelle were she not an employee (i.e. if Michelle
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were not working at all, or were working elsewhere) Scott could get the "family
coveragel1 that applies to her. As the union sees it, Scott's benefits are being diminished
because of who he is married to.
In summary, the umon argues that the employer's policy is inconsistent with the
language of the collective agreement, and also with the Ontario Human Rights Code. As
an active employee with a spouse) Scott is entitled to separate I1family coverage", So is
Michelle. And between the two the them, they can coordinate their benefits, in order to
enhance the subsidies available to them.
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The company replies that, as a pure matter of interpretation, the collective
agreement does not, in fact, permit the "internal coordination of benefits": a situation
where tvvo employees under the same group plan can each claim "family coverage" willi
their spouse listed as a dependent, then file separate claims for reimbursement of the
same expense. The employer argues that the collective agreement language does not
support that scenario; and that the union's position is both linguistically and conceptually
flawed.
The employer submits that the collective agreement does not envisage separate
"plans" or "policies" for each employee, tailored to his/her personal circumstances.
Employees do not have their own individualized insurance plan or insurance policy, Nor
is there any contrachtal relationship between the employee and the insurance company.
Coven~ is not personalized in this way; and in fact, it is a misnomer to speak of
21
ItMichelle's family coveragell or ItScott's single coverage" as if these labels were
determinative of their benefits entitlement.
. .
These terms ("single coverage", "family coverage") are a useful shorthand to
describe the employee's situation and illustrate the resulting costs for the employer. But
that is all they are. They have no contractual force and are not categories of legal
entitlement.
In the employer's submission, there is only one gIQ!ill policy between Surrey
Place and its Insurer, which has been entered into in order to deliver prescribed benefits
- I
to a number of insured persons - be they employees, spouses or dependent children. The
employees obligation is to pay the premiums necessary to give the negotiated benefits to
those insured persons. And so long as those insured persons receive the benefits that
have been negotiated, the employer has fulfilled its obligations.
In the employers submission, talk of ScoWs entitlement to lIfamily coverage" is
simply misleading. What Scott is entitled to, is not "single coveragell or Itfamily
coveragelt, as such, but rather a stipulated list of subsidies for himself and his dependents;
and the way in which those benefits are delivered to the insured persons remains for the
employer to detennine. Provided that each employee is insured (i.e. "covered") and each
employee and dependent gets what is bargained for, the employer is entitled structure the
insurance plan in the manner that is most cost effective.
22
. f . .
""'.'~..;,-..~...~..J.."""'-"L';" C;,
In the employers submission, Article 28.9.4 of the collective agreement makes it
clear that the employer's sole obligation is to pay the premiums for the group plan:
For greater certainty, it is the Employer's obligation to pay its share of the
billed premium for insurance coverage. Disputes about insurance coverage
. .
not already covered by the collective agreement must be addressed to the
insurance carrier.
So long as the employer fulfills that obligation~ and the insurance plan delivers the
negotiated benefits to the persons identified, there can be no breach of the collective
agreement. The employer is not obliged to arrange or pay for "individualized coverages"
in the way that the union suggests.
The employer further ~oints out that the collective agreement and the benefit plan
\
are replete with maximums, ceilings, limitations and stipulations for co-insurance. They
are nwnerous and detailed ~ no doubt reflecting both the complexity of the arrangements,
and the intricate trade-offs associated with bargaining this p€lrt of the employees'
compensation package. For example, Articles 43.2.1 [vision care) and Article 44.1
(b)( c)( d) [dental plan] read~ in part, as follows:
"43,2.1 The Employer agrees to pay 50% of the monthly premiums of
vision care and hearing aid coverage under the Supplementary Health and
Hospital Plan, with the balance of the monthly premiums being paid. by
the employee through payroll deduction. This coverage includes a $10.00
(single) and $20.00 (family) deductible in any calendar year and provides
for vision care (maximum $250 per person in any 12 month period) and
the purchase of hearing aids (maximum $200 per person every five (5)
years for the emv[ovee and deTJendents) as per the employee booklet.
44.1 (a) This plan provides for basic dental care and includes such items
as examinations, consultations, specific diagnostic procedures, x-rays,
preventive services snch as scaling, polishing, and fluoride treatments~
fillings, extractions~ anaesthesia services, periodontal services, endodontic
23
services and surgical services~ as well as prosthodontics services necessary
for relining~ rebasing or repairing of an existing appliance (fixed
bridgework~ removable partial or complete dentures).
(b) (i) Payments under the plan will be in accordance with the current Ontario
Dental Association Schedule of Fees for the subscriber and eligible
dev en dents.
(ii) The Employer shall pay the full premiuins under this plan on the basis
of ninety percent/ ten percent (909/0110%) co-insurance. The employee
shall pay the cost of dental care directly and the carrier shall reimburse the
employee ninety percent (90%) based on the current Ontario Dental
Association Schedule of Fees.
(c) The Employer agrees to pay one hundred percent (100%) of the
monthly premium, for services relating to dentures and crowns on the
basis of fifty percent/fifty percent (50%/50%) co-insurance, in accordance
with the current Ontario Dental Association Schedule of Fees, up to a
calendar year maximum benefit of two thousand dollars ($2,000) for the
insured employee and kach eligible devendent. --
(d) Except for benefits described under Section 44.2 eligible
dependents shall include spouse~ unmarried children under twenty-one
(21) years of age, unmarried children between twenty-one (21) and
twenty-(25) years of age in full-time attendance at an educational
institution or on vacation there from, and children twenty-one (21) years
of age and over, mentally or physically infmn and who are dependent.
The employer argues that all of these detailed limitations would be negated if the
union's interpretation were accepted; and that such could not have been the parties'
intention. The employer submits, therefore, that these "caps" were intended to apply to all
employees, including those who are umarriedl1 to each other - and in fact, that the
maxImums apply to all plan beneficiaries. whether they are employees, spouses or
dependent children. In the employers submission, all persons insured under the group
plan are treated alike.
24
The employer submits that the collective agreement is clear in this regard. But ifit
is thought to be ambiguous, one can look at the benefit plan itself~ in order to see what the
bargaining parties were getting at. For as the employer puts it: the language of the
collective agreement and the language of the plan "define away" the possibility of the
kind of double claims which the union proposes.
The employer points~ for example~ to page 3 of the benefits plan book, where the
dental care limits are described like this:
The maximum amounts reimbursed per insured person are (i) unlimited
for basic treatments; (ii) $2000 per calendar year for major treatments; (ii)
$2000 lifetime maximum for orthodontic treatments. Covered expenses
are reimbursed according to the current fee schedule of the Ontario Dental
Association. Please refer to the descriptive pages for a summary of
covered expenses. [emphasis added]
According to the employer, the collective agreement and the benefit plan are completely
consistent. There cannot be an "internal coordination of benefits", that is: Ifdouble claims"
producing payouts beyond the negotiated limits, because those limits (like the Ulifetime
maximum") attach to the insured person, not the person filing the claim.
The employer concedes at that the existing benefit plan contemplates the external
coordination of benefits~ when spouses or dependents are covered by another policy with
another insurance company. There is a clause in the benefit plan, entitled "Coordination
and Limitation of Benefits", (page 13 ofthe plan booklet) that reads like this:
If you are insured WIder other group policies or government programs or
where coverage is required by stahlte, the benefits payable from all
;;ourcc~; cannot exceed one hundred percent of expenses incurred; th:'!t is,
25
benefits will not be payable with respect to that portion of any eligible
expense for which benefits are payable by another plan. Benefits for
eligible expenses incurred by your dependents who are insured under this
plan as well as another plan will be determined on the following basis:
-- Where your spouse is insured as a participant under another plan, that
portion of an expense which is eligible for reimbursement under such plan
will not be payable;
-- Where your child is insured as a defendant under another plan, benefits
will first be payable under the present plan if your birth date occurs earlier
in the calendar year in relation to that of your spouse.
However in the employers submission, these provisions have no application
where, as here, the employee-spouses are covered by the same a group plan, Moreover,
where the parties have expresply provided for the extenial coordination of benefits, but
\
have not provided for the internal coordination of benefits, the employer submits that an
arbitrator should not lightly imply internal coordination, Nor should we prefer a reading
of the agreement which would sanction "double dipping" or render nugatory so many of
the clearly negotiated ceilings on plan payouts.
The employer also concedes that the tenus of the collective agreement and the
benefit plan must confonu to the Ontario Human Rights Code. The employer
acknowledges that it must treat all employees equally, and without regard to the
enumerated grounds of discrimination. However, in the employer's submission, that is
what it has done: Surrey Place has entered into a group policy which delivers a prescribed
list of negotiated benefits (with prescribed maximums) in each area, for all employees
and all dependents who need such subsidies. There is no discrimination or preference.
26
/
." ... , ,'" . H.., c. .. -~ ...."_.~. .~.:..
The employer argues that Scott and Michelle are not disadvanta2ed by their
spousal relationship. They are not the object of invidious discrimination. Rather they are
seeking preferred treatment and additional advantages that have not been negotiated, and
. .
are not available to other employees. They are seeking to use their spousal relationship,
as a platfonn for a greater level of support from the employer than is available to other
employees or to other couples.
The employer submits that the collective agreement might have included this
additional advantage for employees who are spouses. The agreement might have provided
for the internal coordination of benefits - just as it recognizes the possibility of external
\
coordination. However, in the employers submission, the current coUective agreement
does not do so. Nor is it lUllawful that it does not.
The employer admits that employees with spouses working elsewhere under
another insurance plan, may be in a more advantageous position than spouses who work
for the same employer under the same group insurance plan. If Michelle worked for
someone else, the situation might be different, and Scott might well be entitled to claim
lIfamily benefitsu.
However, in the employers submission, that distinction does not constitute
unlawful I1discriminationll based on maritaVfamily status, because it is an erroneous
comparison: the different treatment flows not from the identity of the spouse per se, but
rather from where s/he works, the plan there in place (if any), thc particular bencfit items
27
. .~:"---;..'.'- ,..
covered, the limits or qualifications found in that other plan, and so on. What matters is
not the identity of the spouse, but where s/he works and the tenns of the benefit plan
applicable there - things over which the employer has no control.
. .
In the employer's submission, the fact that there can be an "external coordination
of benefits" under some other plan with some other employer, does not make Surrey
Place guilty of unlawful discrimination, nor require a revision of the Surrey Place Plan to
allow the internal coordination of benefits.
In summary, the employer submits that the grievance is unfounded and should be
~ \
dismissed, because there is no breach of the collective agreement or the Human Rights
Code.
***
We were referred to the following cases which deal with "coordination of
benefits" issues: Re Kirkland Lake Board of Education and Ontario Secondary School
Teachers Federation (1993),33 L.A.C. (4th) 137 (Burkett); Re Goodyear Canada Inc.&
U.R. W. Local 834 (unreported, August 27, 1995, Sarra); Re Reliance Electric Ltd. and
Reliance Electric Limited Employees Association (1995) 50 L.A.C. (4th)136 (Saltman);
Re Calgary Roman Catholic Separate School District No. 1 & Alberta Teachers
Association, Local 55 (1997), 68 L.A.C. (4th) 1 (Sims); Re Peel Regional Police Services
Board and Peel Regional Police Association (2000), 100 L.A.C. 4th (Kirkwood); and
most recently, Re Toronto Police Services Board and Toronto Police Association (2002),
105 L.A.C. (4th) 352 (Tacon).
28
However, while helpful, this arbitral jurisprudence does not point unequivocally
to the result in the present case. In Kirkland Lake and Reliance Electric, the arbitrators
(largely influenced by the parties' past practice) held that there was no intention to
provide for the internal coordination of benefits. III Goodyear, on quite similar language,
the arbitrator permitted such double claim. In Calgary Roman Catholic School Board the
arbitrator held that the failure to permit the internal coordination of benefits constituted
unlawful discrimination, contrary to human rights legislation. In Peel Regional Police
Services Board and Toronto Police Services Board, the arbitrators held otherwise.
Unfortunately, the arbitral jurisprudence is mixed, and does not provide an
unfailing guide to the results in the instant case; moreover, as both counsel pointed out:
the results in these decisions reflect not only the different collective agreement language,
but also differences of legal characterization and approach (particularly with respect to
the impact of human rights legislation, where the results of the cases are difficult to
reconcile), And, o[course, none of these decisions is binding upon us in a legal sense, nor
were the parties able to point to any judicial consideration of the "internal coordination of
benefits" issue.
Accordingly, we are left to glean the parties' intentions from the particular words
that they have used, then apply the Human Rights Code in a manner that is fair to both
language oftlle agreement and the context under review.
29
III - An aside on the nature of employee benefits
Before ruling on the parties' positions in the instant case, we think that it may be
useful to say something, briefly) about the general nature of employee "benefits"; for, as
. .
will be seen below: employee benefit plans have historical roots that do not sit easily with
modem notions of "discrimination") or with common collective bargaining practice. One
has to be quite careful about how one characterizes "discrimination" when the benefits
entitlements themselves are contingent upon family or spousal relationships, and not just
an individual's employment status or work contribution.
*
It is worth noting, as a starting point) that an employer is not required to provide
employees with benefits. There is no obligation to arrange for dental care) supplementary
medical coverage) disability insurance, subsidies for eyeglasses, and so on. Nor is there
any obligation to provide these things for an employee's spouse and children. Employees
may be compensated solely by the wages that they are paid for the work that they do.
Nevertheless) benefit plans are fairly common these days. However the items
covered and the level of coverage will necessarily vary from employer to employer,
depending upon such factors as: the employer's preference as between this and other
fonns of remuneration; the costs of the benefits in relation to the size and composition of
the employee group; the employer's ability to pay; and so on. And, of course, in a
collective bargaining environment, the benefit plan will usually be the product of
negotiations, which depend not only on the parties! priorities, but also on their relative
30
'/
".~.,. ., ~_~. ,_,.i:.' ;~.;,.-...
bargaining power; and, the level of benefits will typically involve a trade-off as between
wage and benefit items: better benefits for those who need them, may have to be
"purchasedll at the cost of lower wages for the bargaining unit as a whole. Employees
. .
may have to decide what they want, and bargain accordingly - recognizing that progress
in one area may- require restraint in another, 'and that the choice may have IIre_
distributive" effects within the employee group as a whole (e.g. pensions vs. wages)
It is common ground that employee benefit plans are a form of compensation (i.e.
they are lIeamedll benefits). It is also acknowledged that once an employer decides to
provide a benefit package, exclusion from such schemes may not be. made in a
,
discriminatory fashion. Seledtive compensation of this nature would collide with the
legal obligations contained in human rights legislation (and also with section 54 of the
Ontario Labour Relations Act).
On the other hand, it is also evident that this form of compensation is inherently
Itdiscriminatoryll, in the sense that the value of the benefits to a particular individual does
not depend only on his employment status, or upon his position, performance, or work
contribution. Rather, the value of the benefit to the individual employee depends upon
hislher individual needs, and, often, hislher personal or family relationships. Likewise
the cost to the employer.
When one takes benefits into consideration, two employees in the same
classification, perfonning the same work, and earning the same salary, may in fact
receive a different economic reward from their employer, if one of them happens to be
31
single, and the other is a married person with children. While the law normally requires
"equal pay for work of equal value", the two employees may actually receive different
levels of "real compensation", depending on how much they can draw upon employer~
financed benefits (a fact which may also be recognized for income tax purposes) or if
they have a number of dependents who can make claims on the plan. And from the
employer's perspective, the benefit costs may be different as well: an employer may be
required to spend more for a married employee with dependents than a single employee
with none - even though both individuals may be doing the same job and earning the
same salary. The additional cost to the employer reflects the additional value to the
employee associated with havipg the "family coverage".
\
This is not to say that there is anything inappropriate about this difference in
treatment between individuals who, as employees, are similarly situated. It is simply that
current industrial practice incorporates distinctions that in other contexts might be
problematic. Yet no one would say that this distinction is unlawful, just as no one would
say that it is unlawful to have no Itfamily benefitslt at all.
Human rights legislation prohibits "discriminationlt or invidious distinctions
between individuals because of their family or marital status. However, from a benefits
perspective, an employee may actually be better ofj; economically, because slhe has a
spouse or children, since that characteristic provides the basis for a benefit to which
someone else might not be entitled.
32
In other words, such employee is advantaged by a relationship which in other
contexts can be the basis for imposed (and unlawful) disadvantages. Yet no one suggests
that the single employee is "discriminated against" because a married employee with
children can extract more from the employer's pocket, or will receive a higher aggregate
level of subsidies. What matters is that the persons' insured by the group plan (employees,
spouses and children) all have equal access to the benefits bargained for.
It seems to us that we have to keep this in mind in the instant case, where the
employer asserts that it wants to treat all of its employees in the same way, so as not to
inappropriately provide an uadditional advanta~ell to employees who happen to be
\
Itmarriedlt to each other; and the union claims that the employerts attempt to _ equalize
treatment and control costs is "discriminatoryll, because it prevents employee-spouses
from claiming each other as dependents and thus doubling their benefit limits. The union
says that if the identity of your spouse matters in the administration of benefits, then the
plan is inherently discriminatory. To which the employer replies: how can we be
discriminating if we are treating all employees the same; and why should there be more
than one "family coveragel1 per "familyll?
It appears to us that it may also be useful to keep in mind the historical and
societal context in which these problems arise. In Re Calgary Roman Catholic Separate
School District, No.1, Arbitrator Sims put it this way:
TIlls relatively straightforward situation [husband and wife in the same
bargaining unit] raises several important issues. Employees are
individuals, but third party benefit plans often, as in tlus case, involve
33
family benefits. These plans emerged in an era when it may have
appeared safe to assume that each family had one (usually male)
breadwinner. Benefit plans earned by that breadwinner benefited the
whole family. There was little fear of overlap, partly because of the
assumption that the second spouse (usually female) did not work. Even if
she did work, it was often in a job that lacked benefit plans because of the
assumption that she, as a wife, would not need what her husband already
provided. Even historically these assumptions were often wrong, but
many plans were structured when such views held sway. They are now
having to adapt to an era were divorce and remarriage are fact of life, and
where two career families are commonplace.
This case involves a second area of some complexity. Our collective
bargaining systems are premised on the notion of the defined bargaining
unit. Group insurance plans, however, often (although by no means
always) apply to all employees of an employer, whether managerial,
unionized or non-unionized. This means that, unlike other tenns and
conditions of employment, the degree to which the tenns of these plans
are negotiated between ,a given union and the employer may be limited by
the fact that they exf~nd to non union employees as well as those
represented by one or nl;ore unions. This has led to a wide diversity in the
degree to which collective agreements mould plan structure, and the
remedies available through grievance arbitration to resolve disputes about
issues arising from such third party plans.
These two broad areas are then complicated by the development over the
last thirty years, of legislation designed to prevent discrimination based on
gender, age, and, (more recently), marital status and similar
characteristics. Such legislation almost invariably has an orientation
toward the individual as opposed. to the family or the group. This
orientation sometimes conflicts with the family and dependent~based
benefit programs offered through insurance, and with the group-based
assumptions and selection practices of the insurance industry. Put crudely,
if persons with a characteristic that costs more are excluded from group
coverage, such exclusion is almost inevitably seen by some as
discrimination against individuals who carry that characteristic.
It is against these broad legal and social issues (and the social and
demographic changes that underlie them) that this grievance arises.
Human rights legislation focuses upon the inherent worth of individl.la1s,
protecting them from g~bitl'ary disadvantagq based upon personal characteristics or
34
-/
relationships. Benefits schemes, by contrast, are rooted in the characteristics of
collectivities: the groups to which insurance plans apply; and the bargaining units defined
in collective agreements. Human rights are flUldamental and essentially non~negotiable,
while benefits arrangements, like other forms of compensation, are subject to infinite
variation, and exhibit the inherent "advantageous' discrimination" mentioned above: in
purely economic terms, they Itbenefitlt some employees more than others, even though, as
employees, the individuals are similarly situated. It creates, to say the least, rather tricky
legal terrain.
Nor should one forgft that since be~efit~ are a form of compensation for
employees and an element of cost to the employer, the ttrights" in issue here have a
concrete economic dimension. What Scott and Michelle seek to achieve by their
Itdiscrimination" argument, is a level of benefits beyond those available to other
employees - in effect, between the two of them, an additional form of compensation
because of their spousal relationship. Conversely, what the employer seeks to avoid by its
version of Itequal treatment'\ is the added cost of additional "family coverage", if it were
obliged to pay at that level for both Scott and Michelle. ill both cases, the issue of
"principle" has a direct monetary impact - affecting the wage-work bargain in a ma1ll1er
that does not seem to have arisen before for these parties (see paragraph 9 of the Agreed
Statement of Facts), but will ultimately have to be sorted out at the bargaining table.
*
With that background, then, we rerum to the issues put before us for
determination. It will be convenient to examinc thosc issues in two stages.
35
First, we will consider whether the language of the collective agreement (and the
benefit plan) requires the "internal coordination of benefits" - that is, whether, as a matter
of interpretation, the employer is a required to offer Scott "family benefits". On this
branch of the decision, we will also consider whether the collective agreement
contemplates that Scott can coordinate his insurance claims with Michelle, so as to
enhance the value of their benefits. If the answer to these questions is "yesll, then that is
the end of the matter, because the employer is not complying with its contractual
obligations. The grievance can be resolved solely as a matter of interpretation, and there
would be no need to consider the impact ofthe Human Rights Code.
\
However, if the answer to these questions is "no", we will go on to consider
whether that situation is "unlawfull1 - which is to say, whether under the Ontario Human
Rights Code, the collective agreement must be drafted so as to facilitate the "internal
coordination of benefits".
IV - Does the collective agreement give Scott a right to his own, separate, "family
benefits" coverage; and does the agreement also contemplate the "internal
coordination of benefits"?
Is Scott entitled to his own, separate, "family benefits coverage"; and does the
agreement also contemplate the "internal coordination of benefits", so that Scott and
Michelle can, together, secure payments from the plan beyond the negotiated maximums?
In our view, the answer to both questions is uno". While we accept much of what the
union says about the way that benefits arc srmctured; in the end, we do not think that the
36
collective agreement supports the unionts position. Nor does the agreement prohibit the
employer's policy of "one family coverage per family". In this regard, we prefer the
employer's proposed interpretation of the collective agreement, which we think is more
consistent with both the language that the parties have used, and the purpose of the
benefits provisions themselves.
*
In accordance with Article 38.1 of the collective agreement, the benefits described
in Articles 39-51 "appiy to (virtually] all full-time and regular part-time members of the
bargaining uni t". Benefi ts are a negotiated tenn of their employment. Employees become
eligible for benefits after a month of continuous service (Article 44.3) and coverage under
\
the benefit plan ceases on tennination of employment (Article 44.4).
We therefore agree with the union that all employees must have access to these
benefits; and in some cases, their dependents have access as well. Prima facie,
employees are treated in the same way with respect to access to coverage, then the nature
of that coverage is ascertained from their family status (a rough proxy for "need" - albeit
one that is historical, and may not reflect the modem work world or the actual situation of
any individual employee).
However, when the benefit package is read as whole, it is evident that the parties
have been quite careful to distinguish between those benefits that are wholly paid for by
the employer, and those which involve cost sharing or coinsurance. The parties have also
been quite careful to spell out the ceilings or conditions which apply to particular
37
benefits. Indeed, as counsel for the employer points out: unlike the agreements in some of
the cases to which we were referred, this collective agreement is replete with ceilings,
caps, conditions, maximums, and coinsurance features - all of which could be avoided if
. .
the unionts position were accepted. (see for example, the numerous dollar limits,
deductibles, and cost-sharing features in Article 43).
Against that background of meticulous detail, we do not think that we should
lightly conclude that these negotiated caps and conditions can be circumvented -
particularly when they are clearly intended to apply to each insured person, be slhe
employee, spouse, or dependent (a point to which we will return later).
I
,
We do not agree with the employers suggestion that the union's proposed
interpretation involves "pyramiding", of the kind that is expressly prohibited by Article
21 of the agreement. In our view, that clause deals only with the duplication of premium
payments and compensating leave. Nevertheless, in our view, the union's proposal is a
cwious and improbable construction - involving, as it does, both a kind of Itdouble
dipping" and a result that seems out of tune with the general structure of the benefit plan.
At the very least it seems odd to suggest that, because of their spousal
relationship, these employees should be relieved of restrictions that so clearly apply to
their coworkers (including other couples) - generating, in the result, a higher level ofreal
compensation than those co-workers are entitled to. This might be understandable if the
benefits where wholly financed by the employees' premiums - in which case the double
38
./
. ,. c' 't.. ,_ .". c.~.' ,.. ...,;-:,\.'. -.',
coverage would reflect the double premium. But that is not the case for most of the
benefits that the agreement provides.
. .
It also seems odd to say that the subsidy ceilings apply to others, but not to Scott
and Michelle; and it is not obvious to us why their spousal relationship should compel
this difference, in the absence of clear language saying so. And there is no such clear
language in the current collective agreement.
Now, this is not to say that an unusual result is precluded merely because it is
unusual, if the collective agreement language is clear and compelling. But here it is not.
\
Many of the benefits in the package ate lIinsured benefits", that are actually
provided through an insurance company. The employer does not furnish the benefits
itself. Nor does the employer actually administer the plan. Under the collective
agreement, the employer's obligation is: (1) to enter into an agreement with an insurance
company that delivers the benefits bargained for, and (2) to pay its proportion of the
premium associated with each benefit. That is confirmed by article 28.9.4 of the
collective agreement, reproduced above.
The mechanism for delivering the benefits is the contractual arrangement with the
insurance carrier. The employees and their dependents receive benefits in accordance
with that arrangement. In this sense, the insurance plan provides the framework for
benefit administration. But the employee are not direct parties to that insurance
39
agreement. They do not have "their own policyl1 or "their own insurance". Rather, the
employees are members of the W!ill. to which the plan applies.
. .
The employees and their dependents are "covered" by the group plan, and, as
such, are entitled to the benefits to which the plan relates - provided that they meet the
stipulated conditions. However, the collective agreement does not elaborate upon, or
guarantee, a particular kind of insurance coverage ~ just a particular list of benefits, and
then only subject to the conditions and limitations attached to each benefit. In particular,
the collective agreement does not say that Scott is entitled to "family coverage". What it
says is that under the. gro~p plan provided by the employer, Scott and his dependents
. ,
must have access to certain listed benefits, subject to certain listed conditions.
The collective agreement and plan documents, describe the employees and
beneficiaries in various ways: "membee'; "participant", "insured employee", or more
generally "insured person". However, these labels do not, in themselves, define any
psuticular status or entitlement to a category of "coverage". The focus of the collective
agreement is on defined benefits and defined beneficiaries ~ not on particular kinds of
"coverage". And in our view, so long as every employee is in fact "covered" in some
fashion - and thus is entitled to the benefits negotiated ~ then the obligations of the
collective agreement have been met: all employees and their dependents have access to
dental care, vision care, and so on.
40
To reiterate: the collective agreement envisages that members of the bargaining
unit will be members of the group plan, and thus entitled to "coverage". However, the
agreement and the plan do not specify a particular "kind of coverage" to which employees
are entitled. What the agf~ement says, instead, is that employees and their dependents are
entitled to a tlcoverage" (undefined) that will permit them to receive a particular level of
benefits (defined in considerable detail). "Coverage" is not a fixed or defined term - or at
least, cannot be given content without consideration of the actual benefits to which that
"coverage" relates; and so long as that lIcoverage" delivers the benefits bargained for, the
employee has no cause for complaint.
\
In the instant case, of course there is no dispute that Scott is "covered" by the plan
~ whether singly, as part of "a family, or purely as an insured person under Michelle's
coverage. There is no scenario in which Scott will not be "covered", one way of the other.
Nor is there any scenario in which Scott will not have access to the negotiated benefits,
up to the specified limits - just like the other employees and their dependents. The
impugned employer policy does not have that effect.
This is not a case in which someone has been excluded from benefits because of
hislher spousal relationship. What is at issue here is whether Scottts spousal relationship
with another employee actually puts both of them in a better position than other
employees, and effectively allows them to double their coverage limits or halve the
coinsurance requirements. That is why Scott claims that under the collective agreement
41
he is entitled to nfamily coverage" - because in the union's submission, if he has family
coverage, both he and Michelle can file a claim for any expense that Michelle incurs.
. .
The assumption, presumably, is that Scott will transfer his payment to Michelle,
in order to defray her personal costs, and vice versa - although there is no submission that
they are obliged to do so, nor do we see anything in the collective agreement to require it;
and absent such undertaking, the union's interpretation produces a windfall for Scott,
unconnected to any personal expenditures that he himself has incurred - surely an odd
result. Or to put that matter another way: while the union is asserting spousal
separateness for entitlement purposes (hence the alleged right to two family coverages),
\
embedded in the union1s argument is the notion that the spouses are really a single
economic unit, who, together, can achieve a higher level of benefits for them both.
However, in our view, what the agreement deals with is not categories of
coverage, but rather entitlement to particular benefits. That is the predominant and most
probable thrust of the language that the parties have used. For example: under Article
38.1, it is the "benefits described" which IImmJy to all full time and part time members of
the bargaining unitu. And, Article 28.9.1 begins II IIWhen an employee has a complaint
that they have been denied benefits, pursuant to the ensured plans specified....".
The negotiated entitlement is to particular benefits - spelled out in detail, and with
occasional caps and conditions. That entitlement is not tied to the form in which those
benefits are delivered, nor to any particular kind ofl'covera@".
42
"/
In our opinion, the agreement does not specify that each employee must be
enrolled in his/her own name for "single coverage" or "family coveragell. Those are
handy labels to describe the situation of vanous employees, and may be useful to
summarize the two-tiered cost structure imposed upon the employer. But these labels are
not linked to words of employee entitlement, under the collective agreement or in the
plan document. They are not Ucontractual rightsll in the way that the benefits themselves
are. They are words of description not obligation - a kind of shorthand, to delineate the
employee's position and highlight the employer's costs.
i
What the agreement does say. is that all employees have to be I1covered" in some
way, by the group plan, and all employees and their dependents have a right to the
benefits provided. But "the agreement leaves it to the employer to figure out how to
deliver those benefits in the most cost effective way - provided, once again, that all
employees have access to the full range of benefits bargained for.
As things now stand, Scott has "individual coveragetl and thus has access to all of
the benefits defined in the plan. So does Michelle. Both employees have the benefits
bargained for. Alternatively, the employer is prepared to pay family rates for one of them,
in which case, once more, both will employees be entitled to the full range of benefits
stipulated. And we see nothing in the collective agreement that requires anything else.
43
" ,'.' '.' '. .~... .... l '. I. ~~:"'" ....c.' .
In particular, we see nothing in the agreement that requires that both employees
have Ufamily coverage"; and even within the nomenclature preferred by the union, we
find that result improbable ~ which is to say, that the agreement compels TWO "family
coverages" for this ONE Itfamili'. It seems to us that If Scott and Michelle wish to
declare themselves as a "family unit", for benefits'purposes, (which the employer policy
entitles, but does not require, them to do), then they have to be treated as a single family
unit for the purposes of the &rQ!!Q plan. Within that W!ill they make up one family - not
two; and they are entitled under the group plan, to family benefits on that basis (which, as
we have already noted, does give one of them advantageous access, because no co-
,-
premiums are required and slhe avoids some of the employment-related limiting
\
conditions).
We do not think that the words of the collective agreement require overlapping or
"double familyll coverage ~ just coverage that delivers the benefits bargained for; and here
Scott will have that coverage on any scenario.
Similarly, we see nothing in the agreement that provides that employees must be
able to "coordinate their benefitsll and file duplicate Claims in order to avoid the caps and
coinsurance requirements. Not only is there nothing in the agreement that requires that
practice, but the fact th.at the plan specifically deals with the "external coordination" of
benefits, lends credence to the employers position that lIintemal coordination" is not
pemlitted.
44
We do not accept the union's submission that the "coordination of benefits
clause", found at page 13 of the benefits plan, actually applies to Scott and Michelle, and
actually sanctions the "internal coordinationu of benefits, as well as their Itexternal
. .
coordinationll, In our view, these plan provisions apply only where the claimants are
covered by different policies. The relevant clause, entitled COORDINA nON AND
LIMIT A nON OF BENEFITS, begins this way: "If you are insured under other group
policies or government programs.. ..II.
In our view, that clause has no application where the two potential claimants,
(Scott and Michelle) are covered by the SAME group policy. Accordingly, this clause in
the benefit plan provides no foundation for a claim to internal coordination of benefits. If
anything, the implication is to the contrary. Having provided specifically for the external
coordination of benefits between individuals covered by different plans, the parties have
indicated, implicitly, that there is no internal coordination, between individuals covered
by the same plan.
These parties know the kind of language that could be used to provide for an
internal coordination of benefits, But the collective agreement does not contain language
like that. And when we look to the benefits plan as an aid to interpretation, not only is
there no support for the wllon's position, but the language points in the opposite direction.
*
As we read it, the collective agreement distinguishes between insured employees
and eligible dependents. However, when these words are used in the collective
45
agreement, it is evident that the parties are distinguishing two different categories of
claimant (lIemployee or dependentsl1 in Article 43.3; "subscriber and eligible dependents"
in Article 44.1(b); "insured employee and each eligible dependent" in Article 44.1(c)) In
our view, the collective agreement does not contemplate that under the group plan,
someone could be both an "insured employee" and a "dependent" at the same time; and
the agreement certainly does not contemplate that anyone can receive double the
maximums provided for dental care and vision care (the two benefits in issue in this
grievance). Indeed, the presence of these express benefit limits, also militates against the
interpretation that the union urges upon us.
\, .
Article 43.2 of the collective agreement speaks of a "maximum $250 per person
in any 12 month period" ; and in our view, the "personll in question is the one in respect
of whom the vision care is needed (be slhe employee or dependent). If a person covered
by the plan needs eyeglasses, then the plan will provide a subsidy to, or in respect of,
that person, of $250 per year. In our view, the agreement does not contemplate a subsidy
of $500, in respect of that oerson's eyeglasses. Nor that anyone could recover double the
Itdollar limit per visitt1 payments (for a chiropractor, say) spelled out in Article 43.2.1.
Similarly, the dental plan language of the collective agreement provides, at
Article 44.1 (c) :
The Employer agrees to pay one hundred percent (100%) of the monthly
premiwn, for services relating to dentures and crowns on the basis of fifty
percent/fifty percent (50%/50%) co-insurance, in accordance with the
current Ontario Dental Association Schedulc of Fces, up to a calendar year
46
'/
maximum benefit of two thousand dollars ($2,000) for the insured
employee and each eligible dependent.
Once again, as we read it, the maximum payout is personalized to the person
. .
receiving the treatment. It applies to each employee and to each dependent; and it does
not contemplate either that someone could be both an "insured employeelf and lIeligible
dependent" at the same time, or that the payout could actuaIly be $4000 for a single
employee in a calendar year. Nor can we square language that contemplates 50%/50%
Ifcoinsurancell with the union's argument that, between the two of them, Michelle and
Scott can recover 100 % of their costs up to double the prescribed limit.
Now, while it may be possible to read the language in this way - to construe the
cap as a limit per claimant, then postulate dual claims for reimbursement in respect of the
same expense - we do not think that that is the more probable reading of the contract
language. Nor are we convinced that the agreement was intended to provide such
opportunity to employees who also happen to be spouses. The very number and
specificity of the benefit ceilings (which would be swept away on the union's reading of
the agreement) suggest that the union's proposed interpretation is improbable.
This is not to say that the consequences should be allowed to confute the clear
intention of the collective agreement, or that unforeseen consequences can undercut the
plain meaning of the words that the parties have used. However, where the agreement is
unclear and the consequences seem out of step with the collective agreement as a whole,
47
. .
.. ". --.... "--'.'.
we think that we can properly take that into account in deciding what the agreement
means.
In our vlew, the collective agreement as currently framed, simply does not
contemplate a scenario in which there can the double recovery or dual claims breaching
the negotiated maximums; and we are reinforced in that opinion by the language of the
benefit plan itself. There, too, the caps and ceilings relate to the expenditures or needs of
the insured person; and, in our view, do not contemplate double claims in respect of that
person or that expenditure.
i
The opening words of the benefit plan documents ("HEAL TH INSURANCE
FOR YOU AND YOUR DEPENDENTSII) signal the inclusive nature of the coverage
described; however when one turns to the terms of the plan itself, the caps and limitations
are much more specific, and run parallel those found in the collective agreement. Those
maximums apply in respect of each "insured person" - which includes both the employee"
and any dependents. Thus, the benefit plan documents have this to say about wha! ,,:ision
care expenses will be reimbursed:
Vision Care
The following vision care expenses prescribed by an ophthalmologist or
an optometrist [will be reimbursed): Prescription eyeglasses (frame and
lenses) or prescription contact lenses up to the maximum covered amount,
per insured person, specified in the sununary of benefits [namely) II vision
care: prescription eyeglasses (frame and lenses) up to a maximum of $250
per each consecutive 12 month periodll
And the plan documents say tIllS about dental care:
48
The maximum amounts reimbursed per insured person are: i) unlimited
for basic treatments; ii) $2000 per calendar year for major treatments; iii)
$2000 lifetime maximum for orthodontic treatments
It seems to us that the way in which the language is framed, makes it clear that the
"insured person" is the individual receiving the treatment; so in item (iii) for example, it
is his/her lifetime that is relevant for calculating the lifetime maximum. The hearing aid
benefit is limited in the same way Ifup to a lifetime maximum of $200". The payments for
podiatrists, chiropractors, and psychologists are also capped at a dollar amount per visit
by the person in need of their services.
In all of these instanc'es, the subsidy per beneficiary is limited to the amount
specified.
In our view, the language of the benefit plan clarifies and reinforces the language
of the collective agreement. What it means is that the expenses incurred for the care or
services needed by an insured person, can only be reimbursed up to the maximum
specified PER insured person. The plan does not contemplate that an individual can be
I1doubly insured" under the same group plan, or insured in two capacities at once, so as to
double the maximum pay-out from the plan. Each person covered is entitled to the same
benefits with the same conditions.
While the agreement does not expressly say that there cannot be an insured
employee claim and an insured dependent claim in respect of the same expense, we think
49
that is the effect of the t1per insured person" ceilings found in both the collective
agreement and the benefit plan documents.
In other words, what Scott and Michelle wish to do, is not provided for by the
language of the collective agreement or the benefit plan. These documents to do not
contemplate the llintemal coordination of benefits II.
In sununary, then, we do not think the terms of the collective agreement give
Scott an unqualified right to "family coverage It, nor do they contemplate the internal
coordination of benefits as between Scott and Michelle, so that they can exceed the
prescribed benefits payout limits. On the contrary, we agree with the employer that the
existing language Itdefines away" that possibility. Moreover, as we read the benefit plan,
even if Scott had Ilfamily coveragetl (i.e. if the employer were voluntarily prepared to pay
the extra amount) he would still encounter the above-mentioned limits per insured
person, making such family coverage redundant - which again suggests that the internal
coordination of benefits was not contemplated by the bargaining parties.
Finally, to look at the situation from another perspective: is there anything in the
collective agreement that prevents the employer from arranging its insurance in the way
which minimizes costs? More specifically, is the employer prohibited from embracing a
policy of "one family - one family benefits coverageU ? Once again, we do not think so.
50
"/
As we read the agreement, so long as each employee and each dependent has
access to the benefits bargained for, it is open to the employer to arrange and manage its
benefit plan, in a malUler that minimizes its costs. That is what flows from the general
reservation of Itmanagement rights" and also from the employer's right to choose the plan
and the insurer. The employer is not obliged to pay more for what would in any event be
redundant coverage for Scott; nor is it obliged to pay two Itfamily premiums", for a
"single familyll. It is entitled to take Scott and Michelle at their word that they are a
"family unit", and offer insurance coverage accordingly. It is not obliged to provide or
pay for two family coverages.
In our view, the employer's policy is not in breach of the collective agreement,
and in fact, strikes an appropriate balance: guaranteeing the benefits agreed upon, while
at the same time, preserving the maximum amount of employee choice. And as we read
the agreement, the two employees1 benefits will be the same in either case, because the
benefits and limits apply equally "per insured personll, in whatever category (single or
family) the insured person falls.
For the foregoing reasons, we do not think that the terms of the collective
agreement support the interpretation urged upon us by the union. Nor are we persuaded
that the employer's conduct breaches the collective agreement.
5 i
VI - Is the failure to permit the "internal co-ordination of benefits" a breach of the
Human Rights Code?
There is no dispute between the parties about the general legal standards that
must apply to their relationship. Article 3 of the collective agreement specifically
incorporates the requirements of the Human Rights Code; and sections 54 and 48(12)(j)
of the Labour Relations Act, allow this board to consider those questions. Where the
parties disagree, is whether the current benefits plan conforms with those standards.
As we have already noted, the Human Rights Code does not require .an employer
to provide employee benefits. Nor does the Code require an employer to extend those
benefits to non-employees. However, the union argues that once an employer does
undertakes to provide benefits for its employees and their dependents, the benefits should
be the same, regardless of who an employee's spouse is, or where slhe works.
The union asserts that the benefit to Scott should be the same, whether his spouse
is an employee or a non-employee; and that Scott should be entitled to "family benefits"
(and thus the opportunity to coordinate claims) regardless of who his spouse is. And so
should Michelle. To provide otherwise, the union says, is a "discriminatory breach" of the
Human Rights Code.
Similarly, the union contends that if the collective agreement contemplates the
possibility of the "external coordination of benefitstl - overlapping claims if a spouse
works elscwherc thcn thc Human Rights Code rcquircs the "internal coordination of
52
benefits as welrr. The union argues, once again, that the identity of their spouses should
not matter to either Scott or Michelle; and if it does, then the plan does not comply with
the Code. In the union's submission, the plan (and by inference, all benefit plans) must be
structured so that the two employee-spouses can coordinate their benefit claims, and thus
"top up" their benefit payments in the manner descnbed above.
***
We have considered the union's position, and the cases upon which it relies -
particularly, the opinion of ~bitrator Sims in the Calgary case. But on. bal~ce, we
prefer the employer's argument, and the approach taken by arbitrators Kirkwood and
Tacon in the Peel Regional Police Services and Toronto Police Services cases where the
employer had a benefits policy that is similar to those in issue before us (permitting
external coordination but prohibiting internal coordination), yet the arbitrators found no
violation of the Human Rights Code.
We agree with the union that the Surrey plan embodies distinctions between
single and 1fmarried" employees, and between employees that have dependent children
and those that do not. The plan has to make such distinctions when it extends benefits
beyond the employee, to those with whom s/he has a relationship - which is to say,
when the employer is conferring an economic advantage or subsidy on individuals who
are not employees at all. When the availability of benefits turns on more than the
singular status of "being an employee", then the employer has to look at thesc othcr
53
aspects of the employeets situation. However, this does not mean that whenever an
employer acts on these distinctions, it is engaging in unlawful discrimination. For
example, the employer cannot be said to be "discriminatingH when it pays the insurance
company twice as much in premiums for a married employee with children, than it pays
for a single employee with none. Indeed, that, very example underlies one of the
peculiarities of a Ubenefits regime": in order to equalize benefits to the insured person's
under a group plan, it is necessary to treat employees differently, and in this purely
economic sense, unequally.
We have difficulty with the union's position, that the plan is somehow
i
discriminatory" in3:dequate, or under inclusive, because one nuclear family does not have
two family coverages; or because employee.spouses are not treated better than other
employees with spouses ~ particularly when it is not employment, as such, that
determines the kind of benefit coverage in the first place. For in our view, what Scott and
Michelle are seeking here, it is not equal treatment without regard to family or marital
status, but rather more advantageous benefits than other employees and other couples.
What is also striking about the status quo, is the apparent absence of any of the
usual indicia of discrimination in a substantive sense, such as to bring into play the
purposes of the Code. While spouses (or some of them) might historically have been a
disadvantaged group, spouses with the same guaranteed access to benefits as all other
employees certainly are not; and we are unable to see how the current plan reflects the
stereotypical application of presumed group characteristics, or impinges on human
54
, /,
dignity or self-worth, or attaches some stigma to the spousal relationship. The present
case is not at al1like Brossard v. Quebec [1988] 2 S,C.R. 279 or Cashin v. Canadian
Broadcasting Corp. [1988] 3 F.C. 494 where individuals were denied access to
. .
employment because of their spousal relationships; nor is it like the more recent case of
Mr. Bet. al. v. Mr. A and Ontario Human Rights Commission (2000), 50 O.R. (3d) 737,
where an individual was fired because of his wife's dispute with the employer, and that
employer's consequent assumption that her husband would be unable to properly fulfill
his job functions.
Here neither access to employment nor access to benefits are in question. Indeed,
\
the employer is trying to ensure the equality of treatment for all insured persons under the
'group plan - so that all employees and their dependents will be equally indemnified.
What is claimed, therefore, is not the same treatment as other employees or other couples,
but rather a statutory right to better benefits than other employees in the bargaining unit
and other insured persons covered by the group plan. It is difficult to put that on par with
the kind of "arbitrary disadvantage" that engaged the Court's attention in Mr. A.
Now it is true that the concept of "marital status" (which here embraces all
"spousal relationships" including same-sex ones) may extend to the identity of one's
spouse (Mr. A, supra). It is also true that Scott and Michelle may see themselves as
"disadvantaged" in relation to a couple, one of whom works elsewhere, under a benefits
regime that permits the internal coordination of benefits. Howcvcr, Scott and Michelle
are in no different position than a single employee who is a member of the bargaining
55
unit (and can claim the benefits up to the maximums specified in the plan); and in no
different position from a umarried employee" whose spouse does not work; and in no
different position from a married bargaining unit employee whose spouse works
elsewhere, for a company that does not provide benefits. So the only situation in which
Scott and Michelle are apparently disadvantaged, -is vis a vis a "couple", one of whom
works for Surrey place and the other of whom: works for another employer II which has a
benefit plan II that covers the same benefit categories II and permits the external
coordination of benefits.
~,
However, for human rights purposes, we do not think that the distinction turns on
'I
I1marital statusU, in itself, because, if it did, all of the other "couple categorieslt would be
equally disadvantaged. What matters is not the identity of the spouse, alone, but the
identity of the spouse, together with the employment relationship in which that spouse is
engaged and the terms of employment attached to that relationship - none of which are
subject to influence or control by Surrey Place, or are even functionally related to the
terms of employment at Surrey Place. Yet it is discrimination in employment that the
union asserts.
In our view, the union has adopted an inappropriate comparator group,
incorporating characteristics that are not intrinsic to the concept of marital or spousal
status - even if one accepts that the identity of one's spouse is incorporated into that
concept. hI tins regard, we agree with the following observations made by Arbitrator
Tacon in Toronto Police Services:
56
I recognize that, generally, it is for the complainant to detennine the
appropriate comparator group [case citations omitted].But that is not an
immutable principle. There is no logical connection between the concept
of marital status and whether one's employer offers a benefit plan....1
agree that the identity of one's spouse is a relevant factor in considering
the reach of the concept of marital status. That flows from the reasoning
in Mr. A,' !;upra. It is one step further to import into marital status whether
or not one's spouse is employed. But that is not this case either.... What is
urged upon me -- and accepted in Calgary supra ~ is that the nature of
one's employment is also incorporated into the concept of marital status.
That is an elaboration of the protection accorded by the Code from
discrimination on the basis of marital status (or family status) which I do
not believe is appropriate... There is no nexus between marital (or family)
status and the presence or absence of a benefit plan offered by a onets
employer.
We might add that neither is there any nexus between marital status and the particular
coverage items,' coverage li~its, or claims possibilitieS permitted under that other
employer's benefit plan.
We do not think that the comparator group upon which the union bases its
argument is an appropriate one, or that the Surrey benefit plan arrangements are tainted
by invidious and unlawful discrimination based upon marital/spousal status. It is simply
not as generous as it might be - (no different it seems, than the plans applicable to the
married police officers in Peel and Toronto)
We have concluded, therefore, that the collective agreement does not provide for
the internal coordination of benefits, and there is no breach of the Ontario Human Rights
Code.
57
v- Concluding Observations
For the reasons outlined above, we are satisfied that this grievance should be
. .
dismissed. We are not persuaded that there has been any breach of the collective
agreement, or that the Ontario Human Rights Code requires the employer to provide the
employees with a plan that permits the internal coordination of benefits. In our view, the
agreement, as currently written, does not support the union's claim; and we do not think
the statute does either.
, However, it is also worth noting that the parties are currently (or soon will be) in
bargaining for a new collective agreement Accor9ing:ty, if the current language of the
\ ,
collective agreement, as interpreted by this decision, does not capture the parties' shared
intention, then the parties are able to address that question, directly, at the bargaining
table - where, of course, each of them can consider the costs and tradeoffs involved, and
can adjust their positions accordingly.
DATED AT TORONTO THIS -
) too~
"dissent to follow"
P. Munt-Madill
" ~ 93fi# "
Margot Blight
58
/
APPENDIX.. EXCERPTS FROM THE COLLECTIVE AGREEMENT, THE
BENEFITS PLAN, THE HUMAN RIGHTS CODE, AND THE LABOUR
RELATIONS ACT
From the collective Af!reemellt (emphasis added)
ARTICLE 3 - NO DISCRIMINATION
3.1 There shall be no discrimination practised by reason of race, ancestry, place of
origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age,
marital status, family status, or handicap, as defined in Section 9 (I) of the
Ontario Human Rights Code (OHRC).
ARTICLE 5 - MANAGEMENT RIGHTS
-
5.1 Except and to the extent specifically modified by this Agreement, all rights of
management are retained by the Employer and remain exclusively and without
limitation within the rights of the Employer and its management. Without limiting
the generality of the foregoing, the Employer's exclusive rights, power and
authority shall include, but shall not be confined to the right to:
(a) maintain order, discipline and efficiency.
(b) make and enforce and alter from time to time reasonable rules and
regulations to be observed by all employees.
(c) hire, assign duties, promote, demote, evaluate according to-the Joint
Job Evaluation System, layoff, recall, retire,. discharge, suspend or
otherwise discipline employees, provided that a claim that an employee
who has completed their probationary period has been discharged or
disciplined without just cause or has been dealt with contrary to the
provisions of this Agreement may be the subject of a grievance and
dealt with as hereinafter provided.
(d) determine the location and extent of the operations and their
designation, commencement, expansion, revision, curtailment or
discontinuance; to plan, direct, control and alter all operations;
determine in the interest of efficient operation and highest standards of
service, the direction of the working forces, the services to be provided
and the methods, procedures and equipment to be used in
connection therewith; deteIDline the descriptions of the jobs, the hours
of work, the work assignments, the methods of doing the work and the
59
working establishment for any servIce and the standards of
performance for all employees.
(e) determine the qualifications of employees, the number of employees required by
the Employer at anyone time; introduce new and improved methods,
facilities, equipment; control the amount of supervision necessary; to increase
or reduce personnel in any particular area.
*****
28.9 INSURED BENEFITS GRlEV ANCE
28.9, I Where an employee has a complaint that they have been denied
benefits pursuant to the insured benefits plans specified in Articles 39, 40, 41, 43
and 44, they shall first discuss the complaint with their supervisor within twenty
(20) days of first becoming aware of the complaint.
\
28.9.4 For greater certainty, it is tlte Employer1s obligation to pay its share
of the billed premium for insurance coverage. Disputes about insurance
coverage not already covered by the collective agreement must be addressed to
the insurance carrier.
PART B - EMPLOYEE BENEFITS
ARTICLE 38 - APPLICATION OF PART B, EMPLOYEE BENEFITS
38.1 Subject to the provisions of Article 21 (Term Employees), the benefits described
in Articles 39 to 51 apply to aU full time and regular partAtime members of the
b(ifgaining unit represented by the Ontario Public Service Employees Union.
However, part-time employees working fewer than fourteen (14) hours per week
shall not be entitled to benefits.
38.2 In Articles 39 to 51, salary means gross earnings from weekly hours of work;
exclusive of premium payments,
38.3 For the purposes of Part B (Insured Benefits) of this collective agreement,
"spouse" shall include a partner of the same sex.
ARTICLE 39 - BASIC LIFE INSURANCE
39.1 The Employer shall pay one hundred percent (100%) uf the monthly premium of
the basic life insurance plan,
60
39.2 The basic life insurance plan shall provide:
(a) coverage equal to seventy-five percent (75%) of annual salary or ten
thousand dollars ($10,000), whichever is greater:
. .
(b) where an employee is continuously disabled for a period exceeding six
(6) months, the Employer will continue to pay monthly premiums on
behalf of the employee Wltil the earliest of recovery, death, or the end
of the month in which the employee reaches age 65. Any premiums
paid by the employee for this coverage between the date of disability
and the date this provision comes into force shall be refunded to the
employee.
(c) a conversion option for terminating employees to be obtained without
evidence of insurability and providing coverage up to the amount for
which the employee was insured prior to termination (less the amount
of coverage provided by the Employer in the case of re~irement). The
premium of such policy shall be at the current rates of the insuring
company. A\pplication must be made within thirty-one (31) days of the
date of termination of insurance. The Employer will advise terminating
employees of this conversion privilege. The minimum amount that may
be converted is two thousand dollars ($2,000). -
The conversion options shall be:
I. Any standard life or endowment plans (without disability or
double-indenmity benefits) issued by the insurance carrier.
2. A one (1) year term insurance plan which is convertible to the
standard life or endowment plans referred to in 1 above.
3. A term to age sixty-five (65) insurance plan.
39.3 The amount of basic life insurance will be adjusted with changes in the
employee's salary from the date of approval of the increase or the effective date,
whichever is later, If an employee is absent from work because of sickness or
disability on the date an increase in insurance would have occurred, the increase
will not take effect until the employee returns to work on a full-time basis (i.e.,
for at least one (1) full day).
39.4 Basic life insurance will terminate at the end of the month in which an employee
ceases to be an employee unless coverage is extended under the total disability
provision. Employees who receive a monthly benefit from the Hospitals of
Ontario Pension Plan (HOOPP) are entitled to free coverage of two thousand
dollars ($2,000) not earlier than thirty~one (31) days aftt;r tht; first of the month
61
coinciding with or following date of retirement and this amount will be kept in
force for the remainder of the employee's life. For the employee extending
retirement beyond age 65, the Employer will pay the premium for the $2,000
coverage.
ARTICLE 40 - SUPPLEMENTARY AND DEPENDENT LIFE INSURANCE
40.1 (a)
Employees, at their option, may purchase Supplementary Life
Insurance in the amount of one'(1), two (2) or three (3) times annual
salary. The employee pays the full premium for this coverage.
(b) The employee1s Supplementary Life Insurance provides:
(i) a waiver of premium on disablement to become effective after
nine (9) months continuous disability or entitlement to Long Term
Income Protection benefits, whichever comes first, and to remain
in force while the employee is totally disabled until the earliest of
recovery, death, or the end of the month in which.the employee
reaches age 65. The premiums paid by the employee for this
coverage between the date of disability and the date the premium
waiver comes into force shall be refunded to the employee:
(ii) a conversion option on the employee's termination to be obtained
without evidence of insurability and providing coverage up to the
amount for which the employee was insured prior to termination.
The premium of such policy shall be at the current rates of the
insuring company. Application must be made within thirty-one
(31) days of the date of termination of insurance. The Employer
will advise terminating employees of this conversion privilege.
The conversion option shall be as stated in sub-section 39.2(c) of
Article 39 (Basic Life Insurance).
40.2 The amount of Supplementary Life Insurance will be adjusted with changes in the
employeets salary, subject to proof of insurability when required by the insurer,
from the date of the approval of the increase or the effective date, whichever is
later. If an employee is absent from work because of sickness or disability on the
date an increase in insurance would have occurred, the increase will not take
effect until the employee returns to work on a full~time basis (i.e., for at least one
(1) full day). In the event of a reduction in salary, an employee, at their option,
may maintain the insurance coverage at the former higher level.
40.3 Supplementary Life Insurance will terminate at the earlier of either the end of the
calendar month in which the employee ceases to be an employee or, if the
employee continues to be employed after age 65, on the first day of October
62
, I
~ -. --;, > ._'. "
following the employee's 65th birthday, except where coverage is provided under
total disability, as described in 40.1 (b )(i) above.
40.4 (a)
Employees, at their option, may purchase life insurance for dependants
in one of two manners: Option A: one thousand dollars ($1,000) on the
employee's spouse and five hundred dollars ($500) on each dep~l1dent
child, or Option B: two thousand dollars ($2,000) on the employee's
spouse and one thousand dollars ($1,000) on each dependent child. The
employee pays the full premium .for this coverage.
(b) Dependent Life Insurance will terminate at the earlier of either the end
of the calendar month in which the employee ceases to be an employee
or, if the employee continues to be employed after age 65, the first day
of October following the employee's 65th birthday, or the date a
dependent ceases to be an eligible dependent.
(c) Conversion option: When an employee terminates, Dependent Life
Insurance on a spouse may be converted to an individua~policy which
may be obtained without evidence of insurability and providing
coverage for the same amount for which the spouse was insured asa
dependent prior to termination. The premium of such policy shall be at
the current rates of the insuring company. Application for t~e
converted policy must be made within thirty-one (31) days of the date
of termination of insurance.
(d) Eligible dependents shall include spouse, unmarried children under
21 years of age, unmarried children between 21 and 25 years of age
and in full-time attendance at an educational institution or on vacation
therefrom, and children 21 years of age and over, mentally or
physically infinn and wh~ are dependent.
40.5 An employee who applies to purchase or increase this insurance including
increases pursuant to Article 40.2, at any other time must provide evidence of
insurability satisfactory to the insurer.
ARTICLE 41 - LONG TERM INCOME PROTECTION (L.T.I.P.)
41.1 The Employer shall pay eighty-five percent (85%) of the monthly premium of the
Long Term Income Protection Plan.
41.2 41.2.1 The Long Term Income Protection benefit is sixty-six and two-thirds
percent (66-2/3%) of the employeets gross salary at the date of disability,
including any retroactive salary adjustment to which the employee is entitled.
41.2.2 The Long Term Income Protection benefit to which an employee is
entitled under 41.2.1 shall be reduced by thc total of other disability or retirement
63
benefits payable under any other plan toward which the Employer makes a
contribution except for Workers1 Compensation benefits paid for an unrelated
disability, and such benefits are payable until recovery, death or the end of the
month in which the employee reaches age 65.
41.2.3 Long Term Income Protection benefits commence after a qualification
period of six (6) months from the date the employee becomes totally disabled.
. .
41.2.4 Total disability means the cpntinuous inability as the result of illness,
mental disorder, or injury of the insured employee to perform any and every duty
of their normal occupation during the qualification period, and during the first
twenty-four (24) months of benefit period; and thereafter during the balance of
the benefit period, the inability of the employee to perform any and every duty of
any gainful occupation for which they are reasonably fitted by education, training
or experience.
41.3 The Employer will continue to make pension contributions and premium
payments for the Dental Plan and for Supplementary Health an,!, Hospital on
behalf of.the employee, at no cost to the employee, while the employee receives
or is qualified to receive L.T.I.P. benefits under the plan; unless the employee is
supplementing a W.S.I.,s. award.
41.4 A record of employment, if required in order to claim Employment Insurance
sickness and disability benefits, will be granted to an employee and this document
shall not be considered as termination of employment.
41.5 Long Term Income Protection coverage will terminate at the end of the calendar
month in which an employee ceases to be an employee. Ifthe employee is totally
disabled on the date their insurance terminates, they shall continue to be insured
for that disability.
41.6 If, within three (3) months after benefits from the L.T.I.P. plan have ceased, an
employee has a recurrence of a disability due to the same or a related cause, the
L.T.I.P. benefit approved for the original disability will be reinstated
immediately.
41.7 Ifan employee who is in receipt ofL.T.I.P. benefits is resuming employment on a
gradual basis during recovery, partial benefits shall be continued during
rehabilitative employment. tlRehabilitative employmentU means remunerative
employment while not yet fully recovered, following directly after the period of
total disability for which benefits were received. When considering rehabilitative
employment benefits, L.T.I.P. will take into account the employee's training,
education and experience. The rehabilitative benefit will be the monthly L.T.I.P.
benefit less fifty percent (50%) of rehabilitative employment eamings. The
benefit will continue during the rehabilitalive employment period up to but not
64
more than twenty-four (24) months. Rehabilitative employment may be with the
Employer or with another employer.
41.8 The L.T.J.P. benefits under rehabilitative employment shall be reduced when an
employee's total earnings exceed one hundred percent (100%) of their earnings as
at the date of commencement of total disability. '
. .
41.9 Employees while on rehabilitative employment with the employer will earn
vacation credits as set out in Article 46 (Va'cations and Vacation Credits).
41.10 (a)
When an employee who has been receiving or was eligible to receive
L.T.I.P. benefits is able to return to full-time employment, the
provisions of Article 25 (Job Security), with the exception of
section 25.8, shall apply.
(b)
An employee who is assigned, under this section) to a vacancy in
accordance with sub-sections 25.2 of Article 25 shall, for a period of
six (6) months, be paid at the same step they had attained in the salary
range of the position they occupied prior to disability. At the end of
that period 'they shall be paid at a rate within the salary range of the
position' to which they have been assigned.
ARTICLE 42 - EMPLOYER HEALTH TAX
42.1 The Employer shall pay one hundred percent (100%) of Employer Tax levied on
employee earnings.
ARTICLE 43 - SUPPLEMENTARY HEALTH AND HOSPITAL INSURANCE
43.1 The Employer shall pay one hundred percent (100%) of the montWy premium of
the Supplementary Health and Hospital Plan.
43.2 The Supplementary Health and Hospital Plan shall provide for the reimbursement
of the cost of prescribed drugs and medicines by means of a prescription drug
card with a 35 cent deductible per prescription, one hundred percent (100%) of
the cost of semi-private or private hospital acconunodation to a maximum of
seventy-five dollars ($75) per day over and above the cost of standard ward care,
and one hundred percent (100%) of the cost for the following services:
(a) Charges for acconunodation, for employees 65 and over, in a licensed
chronic or convalescent hospital up to twenty-five dollars ($25) per day
and limited to one hundred and twenty (120) days per calendar year for
semi-private or private accommodation;
(b) Charges made by a licensed hospital for out-patient treatment not paid
for under a provincial plan;
65
(c) Charges for private-duty nursing in the employeets home, by a
registered nurse who is not ordinarily resident in the employee's home,
and who is not related to either the employee or their dependents,
provided such registered nursing service is approved by a licensed
physician or surgeon as being necessary to the employee1s health care:
(d) Charges for the services of a chiropractor, osteopath, naturopath,
podiatrist, physiotherapist, speech therapist, and masseur (if licensed
and practising within the scope of their licence), to a maximum of
eighteen dollars ($18) per visit for each visit not subsidized by
O.H.I.P.:
(e) Charges for the services of a psychologist or social worker up to
sixteen dollars ($16) per half-hour for individual psychotherapy and/or
testing and twelve dollars ($12) per visit for all other visits;
(f) Artificial limbs and eyes, crutches, splints, casts, trusses and braces;
(g) Rentals of \wheel chairs, hospital beds or iron lungs required for
temporary therapeutic use. A wheel chair may be purchased if
recommended by the attending physician and if rental cost would
exceed the purchase cost;
(h) Ambulance services 'to and from a local hospital qualified to provide
treatment, excluding benefits allowed under a provincial hospital plan;
(i) Oxygen and its administration;
G) Dental services and supplies, provided by a dental surgeon within a
period of eighteen (18) months following an accident, for the treatment
of accidental injury to natural teeth, including replacement of such
teeth or for the setting of a jaw fractured or dislocated in an accident,
excluding any benefits payable under any provincial medicare plan;
(k) Hearing aids and eyeglasses, ifrequired as a result of accidental injury;
(I) Charges for services of physicians, surgeons and specialists legally
licensed to practise medicine which, when provided outside the
Province of Ontario, exceed the O,H.I.P. fee schedule, the allowance
under this benefit being up to one hundred percent (100%) of the
O.M.A. fee schedule when added to govenunent payments under the
OJ-LI.P. fee schedule.
(m) Charges for surgery by a podiatrist, perfonncd in a podiatrist's office,
to a maximum of one hundred dollars ($100).
66
43.2.1 The Employer agrees to pay 50% of the monthly premiums of vision
care and hearing aid coverage under the Supplementary Health and Hospital Plan,
with the balance of the monthly premiums being paid by the employee through
payroll deduction. This coverage includes a $10.00 (single) and $20.00 (family)
deductible in any calendar year and provides for vision care (maximum $250 per
person in any 12 month period) and the purchase of hearing aids (maximum $200
per person every five (5) years for the employee and dependents) as per the
employee booklet.
43.2.2 The Union agrees that the Employment Insurance rebates of bargaining
unit members are to be assigned to the Employer to defray the cost of increases in
coverage for semi-private hospital coverage and coverage for services of a
chiropractor, osteopath, naturopath, podiatrist, physiotherapist, speech therapist
and masseur.
43.3 It is not necessary for ,an employee or dependents to be confined to ~hospital to be
eligible for benefits under this plan. If an employee is totally disabled or their
dependent is confined; to hospital on the date their Supplementary Health and
Hospital Insurance terminates, benefits shall be payable until the earliest of: the
date the total disability ceases, the date their dependent is discharged from
hospital, or the expiration of six (6) months from the date of termination of
insurance.
43.4 Where an employee is totally disabled, coverage for Supplementary Health and
Hospital Insurance will cease at the end of the month in which the employee
receives their last pay from the Employer, except as provided in section 41.3 of
Article 41 (Long Term Income Protection). If an employee wishes to have
Supplementary Health and Hospital Insurance continue, arrangements may be
made through the Human Resources Office. The employee shall pay the full
premIUm.
ARTICLE 44 - DENTAL PLAN
BENEFITS
44.1 (a)
This plan provides for basic dental care and includes such items as
examinations, consultations, specific diagnostic procedures, x-rays,
preventive services such as scaling, polishing, and fluoride treatments,
fillings, extractions, anaesthesia services, periodontal services,
endodontic services and surgical services, as well as prosthodontics
services necessary for relining, rebasing or repairing of an existing
appliance (fixed bridgework, removable partial or complete dentures).
67
(b) (i) Payments under the plan will be in accordance with the current
Ontario Dental Association Schedule of Fees for the subscriber and
eligible dependents.
(ii) The Employer shall pay the full premiums under this plan on the
basis of ninety percent! ten percent (90%/10%) co-insurance. The
employee shall pay the cost of dental care directly and the carrier shall
reimburse the employee ninety percent (90%) based on the current
Ontario Dental Association Schedule of Fees.
(c) The Employer agrees to pay one hundred percent (100%) of the
monthly premium, for services relating to dentures and crowns on the
basis of fifty percent!fifty percent (50%/50%) co-insurance, in
accordance with the current Ontario Dental Association Schedule of
Fees, up to a calendar year maximum benefit of two thousand dollars
($2,000) for the insured employee and each eligible dependent.
(d) Except for benefits described under Section 44.2 eligible dependents
shall include spouse, unmarried children under twenty-one (21) years
of age, ~arried children between twenty-one (21) and twenty-(25)
years of age: in full-time attendance at an educational institution or on
vacation therefrom, and children twenty-one (21) years of age and
over, mentally or physically infirm and who are dependent.
44.2 The Employer agrees to pay one hundred percent (100%) of the monthly
premium, for services relating to orthodontics, to apply only to dependent
unmarried children of the employee between the ages of six (6) and eighteen (18),
on the basis of fifty percent! fifty percent (50%/50%) co-insurance, in accordance
with the ClUTent Ontario Dental Association Schedule of Fees, up to a lifetime
maximum benefit of two thousand dollars ($2,000.00) for each such dependent
unmarried child.
ELIGIBILITY
44.3 Employees are eligible for coverage on the first day of the month following the
month in which the employee has completed one (I) month of continuous service.
CANCELLATION
44.4 All coverage under this plan will cease on the date oftennination of employment.
68
ARTICLE 4S - INSURED BENEFITS PLANS - GENERAL
COMMENCEMffiNTOFCOVERAGE
45.1 Employees will be insured for Basic Life, Supplementary and Dependent Life
(when elected), Long Term Income Protection, and Supplementary Health and
Hospital benefits effective the first of the month immediately following one (1)
month's continuous service.
COVERAGE DURING LEA VE-OF-ABSENCE WITHOUT PAY
45.2 During leaves-of-absence without pay, employees may continue participating in
Basic Life, Supplementary Life, Dependent Life, Supplementary Health and
Hospital, Long Term Income Protection, and the Dental Plan by arranging to pay
full premiums at least one (1) week in advance of the first of each month of
coverage through the Hmnan Resources Office.
DAYS OF GRACE
\
45.3 There is a thirty-one (31) day grace period following termination during which the
insurance remains in force for Basic, Supplementary and Dependent Life
Insurance.
ARTICLE 46 - EMPLOYEE BENEFITS COMMITTEE
46.1 The parties agree to continue the Employee Benefits Committee. The terms of
reference are set out in Appendix 3 attached.
ARTICLE 47 - VACATIONS AND VACATION CREDITS
47.1 An employee shall earn vacation credits at the following rates:
(a) One and one-quarter (1-1/4) days per month during the first five (5)
years of continuous service;
(b) One and two-thirds (1-2/3) days per month after five (5) years of
continuous service;
(c) Two and one-twelfth (2-1/12) days per month after ten (10) years of
continuous service;
(d) Two and one-half (2-1/2) days per month after twenty~nine (29) years
of continuous service,
69
47,2 An employee is entitled to vacation credits under section 47.1 in respect of a
month or part thereof in which they are at work or on leave with pay.
47.3 An employee accrues vacation credit under Section 47.1 in respect of a whole
month in which the employee is absent from duty, when the employee is absent
on:
(i) vacation leave of absence;
(ii) employer-paid leave-of-absence with pay; or
(Hi) pregnancy, parental or adoption leave,
but not otherwise. For greater certainty, employees do not accrue vacation credit
under Section 47 during absence on Workplace Safety and Insurance Board
Compensation, Long Term Income Protection Plan or unpaid employee leave of
absence unless listed above or provided in Article 47.2.
47.4 When an employee is not accruing vacation credit under SectIon 47.1, the
employee remains entitled to two weeks' vacation per year, with pay amounting to
four per cent (4%) of the employee's wages (excluding vacation pay) accrued by
the employee during the twelve (12) months for which the vacation is given.
47.5 An employee shall be credited with their vacation for a calendar year at the
commencement of each calendar year.
47.6 An employee may accumulate vacation to a maximum of twice their annual
accrual but shall be required to reduce their accmnulation to a maximum of one
(1) year's accrual by December 31 of each year.
47.7 On commencing employment an employee shall be credited with pro rata
vacation for the balance of the calendar year, but shall not be permitted to take
vacation until they have completed six (6) months of continuous service.
47.8 An employee with over six (6) months of continuous service may, with the
approval of their supervisor, take vacation to the extent of their vacation
entitlement and their vacation credits shall be reduced by any such vacation taken.
For this purpose, an employee may include any continuous service as a term
employee immediately prior to their appointment.
47.9 Where an employee has completed twenty-five (25) years of continuous service,
there shall be added, on that occasion only, five (5) days of vacation to their
accumulated vacation entitlement.
47.10 An employee who completes twenty-five (25) years of continuous service on or
before the last day of thc month in which they attain sixty" four (64) ycars of agc
70
is entitled to receive five (5) days of pre-retirement leave with pay in the year
ending with the end of the month in which they attain the age of sixty-five (65)
years,
, .
47.11 Where an employee leaves the Centre prior to the completion of six (6) months
service as computed in accordance with section 47.6, they are entitled to vacation
pay at the rate of four percent (4%) of the salary paid during the period of their
employment.
47.12 An employee who has completed six (6) or more months of continuous service
shall be paid for any earned and unused vacation standing to their credit at the
date they cease to be an employee, or at the date they qualify for payments under
the Long Term Income Protection plan as dermed under Article 41, and any
salary paid for unearned vacation used up to that time shall be recovered by the
Employer from any monies owing to that employee.
47.13 An employee who has completed their probationary period shall, upon giving at
least two (2) monthst written notice, receive, before commencing vacation, an
advance against the pay cheques that fall due during the vacation period, based
upon the following co~ditions:
(a) such an adv~ce shall be provided only where the employee takes at
least two (2) consecutive weeks' vacation;
(b) such an advance shall be in an amount equal to the employee's lowest
net regular pay cheque in the two (2) month period immediately
preceding commencement of their vacation leave, and rounded to the
closest ten dollars ($10) below such net amount:
(c) where more than two (2) pay cheques are due and payable during the
vacation period, in no case will the advance exceed twice the amOWlt
set out in (b) above.
Any additional amount due the employee as a result of the application of (b) and
(c) above will be paid to the employee in the normal manner.
ARTICLE 48 - SHORT TERM SICKNESS PLAN
48.1 An employee who is unable to attend to their duties due to sickness or injury is
entitled to leave-of-absence with pay as follows:
(i) witb regular salary for the first seven (7) working days of absence,
which period of time shall include sickness or injury of their dependent
children
']'
, 1
(ii) with seventy-five percent (75%) of regular salary for an additional one
hundred and twenty-three (123) working days of absence, in each
calendar year.
(Hi)
the Employer shall contact an employee who has been on short-term
sick leave for a period of ninety (90) days to advise them of their
benefit as provided for under Article 41 - Long Term Income
Protection Plan.
. .
48,2 An employee is not entitled to leave-of-absence with pay under section 48.1 of
this Article until they have completed twenty (20) consecutive working days of
employment.
48.3 Where an employee is on a sick leave-of-absence which commences in one
calendar year and continues into the following calendar year, they are not entitled
to leave~of-absence with pay under section 48.1 of this Article for more than one
hundred and thirty (130) working days in the two (2) years until they have
returned to work for twenty (20) consecutive working days.
48.4 An employee who has\ used leave-of-absence with pay for one hundred and thirty
(130) working days in a calendar. year under section 48.1 of this Article must
complete twenty (20) consecutive working days before they are entitled to further
leave under section 48.1 in the next calendar year.
48.5 The pay of an employee under this Article is subject to deductions for insurance
coverage and pension contributions that would be made from regular pay. The
Employer-paid portion of all payments and subsidies will continue to be made.
USE OF ACCUMULATED CREDITS
48.6 An employee on leave-of-absence under sub-section 48.1 (ii) of this Article may,
at their option, have one-quarter (114) of a day deducted from their accumulated
credits (vacation or overtime credits) for each such day of absence and receive
regular pay.
48.7 Where, for reasons of health, an employee is frequently absent or unable to
perform their duties, the Employer may require them to submit to a medical
examination.
48.8 After five (5) days' absence caused by sickness, the Executive Director or their
designee may request a medical certificate certifying that the employee is unable
to attend to their official duties. Failme to provide such certificate upon the
request of the Employer will result in withholding of pay. Notwithstanding this
provision, where it is suspected that there may be an abuse of sick leave, the
72
Executive Director or their designee may require an employee to submit a medical
certificate for a period of absence of less than five (5) days.
48.9 Any medical certificate requested by the Employer shall be paid for by the
Employer.
48.10 Employees returning from L.T.J.P. to resume employment in accordance with
Article 48.8 must complete twenty (20) consecutive working days of employment
to qualify for benefits under the Short Term Sickness Plan.
48,11 For the purposes of this Article twenty (20) consecutive working days of
employment shall not include vacation leave"of-absence or any leaves without
pay, but days worked before and after such leave shall be considered consecutive.
Notwithstanding the above, where an employee is unable to attend to their duties
due to sickness or injury, the days worked before and after such absence shall not
be considered consecutive.
ATTENDANCE REVIEW MEETINGS
48.12 Wher~ an employee i~ interviewed by a member or members of management in
respect 'of the employee's record of attendance at work, no evidence- of that
interview or of the particular aspects of the attendance record upon which that
interview was based shall be admissible before a Board of Arbitration or Sole
Arbitrator in the arbitration of a disciplinary grievance unless the employee was
given reasonable notice of the interview and of the right to have union
representation at that interview, and the employee either had such union
representation or declined that representation in writing prior to the interview.
ARTICLE 49 - SEVERANCE PAYMENT
49.1 An employee who has completed a minimum of one (1) year of continuous
service and who ceases to be an employee because of layoff under Article 25 is
entitled to severance pay for continuous service from and after October 1, 1987
equal to one (1) week of salary for each year of continuous service from and after
October 1, 1987.
49.2 (1)
The total of the amount paid to an employee in respect of severance
pay, shall not exceed one-half (1/2) of the annual salary of the
employee at the date when they cease to be an employee.
(2) The calculation of severance pay of an employee shall be based on the
regular salary of the employee at the date when they cease to be an
employee.
(3) Where a computation for severance pay involves part of a year, the
computation of that part shall be made on a monthly basis, and,
73
(a) any part of a month that is less than fifteen (15) days'shall be
disregarded; and
(b) any part of a month that is fifteen (15) or more days shall be
deemed to be a month.
. .
49.3 For purposes of determining qualification for severance pay and the amount of
severance pay to which an employee is entitled, an employee's continuous service
shall not include any period:
(a) when they are on leave-of-absence without pay for greater than thirty
(30) days, or for a period which constitutes a hiahls in their service,
I.e.:
(1) Political Activity
(2) Lay-off (Article 25, Job Security)
(3) Educational Leave:
(b r when they i are receiving benefits under the Long Term Income
Protection Plan;
(c) after the first six (6) months that they are receiving benefits pursuant to
an award under the Workplace Safety and Insurance Act, but this
clause shall not apply during a period when the accumulated credits of
the employee are being converted and paid to the employee at a rate
equal to the difference between the regular salary of the employee and
the compensation awarded.
49.4 An employee may receive only one (1) severance payment for a given period of
continuous service.
49.5 Notwithstanding section 49,4, an employee who has been released in accordance
with Article 25 (Job Security) and who is subsequently reappointed in accordance
with section 26.3 of Article 26 (Seniority) may, at their option, repay any
severance payments received under this Article to the employer, and, thereby,
restore severance pay entitlements for the period of continuous service
represented by the payment.
ARTICLE 50 - WORKPLACE SAFETY AND INSURANCE COMPENSATION
50.1 Where an employee is absent by reason of an injury or an industrial disease for
which a claim is made under the Workplace Safety and Insurance Act, their salary
shall continue to be paid for a period not exceeding thirty (30) days, If an award is
not made, any payments made under the foregoing provisions in excess of that to
74
which they are entitled under sections 48.1 and 48.6 of Article 48 (Short Term
Sickness Plan) shall be an amount owing by the employee to the Employer.
50.2 Where an employee is absent by reason of an injury or an industrial disease for
which an award is made under the Workplace Safety and Insurance Act, their
salary shall continue to be paid for a period 'not exceeding three (3) consecutive
months or a total of ';ixty-five (65) working days where such absences are
intermittent, following the date of the first absence because of the injury or
industrial disease, and any absence in respect of the injury or industrial disease
shall not be charged against their credits.
50.3 Where an award is made under the Workplace Safety and Insurance Act to
an employee that is less than the regular salary of the employee and the
award applies for longer than the period set out in section 50.2 and the
employee has accumulated credits, their regular salary may be paid and
the difference between the regular salary paid after the period set out in
section 50.2 and the compensation awarded shall be converted to its
equivalent time and deducted from their accumulated credits.
50.4 Where an employee repeives an award under the Workplace Safety and Insurance
Act, and the award applies for longer than the period set out in section 50.2 (i.e.
three (3) months), and the employee has exhausted all attendance credits, the
Employer will continue subsidies for Basic Life, L.T.I.P, Supplementary Health
and Hospital and the Dental Plan for the period during which the employee is
receiving the award.
ARTICLE 51 - ENTITLEl\1ENT ON DEATH
51.1 Where an employee who has served more than six (6) months dies, there shall be
paid to their personal representative or, their estate, the sum of their salary for the
period ofvacationJeave-of-absence and overtime credits that have accrued.
From the Benefits Plan
YOUR PERSONAL COVERAGE, ALL UNION AND NON - UNION EMPLOYEES
HEALTH INSURANCE FOR YOU AND YOUR DEPENDENTS.
Medical expenses
Reimbursement
~''1 t:
i J
Deductible: There is a combined deductible for hearing aids and vision care of $10 per
insured person, with a maximum of $20 per family, per calendar year. No deductible
applies to other covered expenses. The covered expenses are reimbursed at 100 %. The
maximum amount reimbursed, per insured person, for expenses incurred in Canada is
unlimited, [emphasis added]
, .
Covered Expenses
Covered expenses which are subject to maximums are indicated below:
Services of a podiatrist, up to $ I 8 per visit for each visit not subsidized by ORIP.
Services of a psychologist or social worker, up to $16 per half-hour for individual
psychotherapy and testing and $12 per visit for all other visits.
Hearing aids, up to a lifetime maximum of $200.
Vision care: prescription eyeglasses (frame and lenses) or prescription contact lenses up
to a maximum of$250 per pelwon each consecutive twelve-month period. .-
Hospitalization outside Canada in case of emergency, semiprivate room or private room,
maximum $75 per day and without any limit as to the number of days. For medical and
surgical expenses incurred outside the problems in case of emergency, the maximum
amount reimbursed per insured person is unlimited.
Please refer to the descriptive pages for a smnmary of covered expenses.
DENTAL CARE FOR YOU AND YOUR DEPENDENTS
The plan provides for the reimbursement of expenses for basic, major and orthodontic
treatments. No deductible applies. The covered expenses are reimbursed at: 90 % for
basic treatments; 50 % for major treatments, 50 % for orthodontic treatments.
The maximum amount reimbursed per insured person is are:
i) unlimited for basic treatment;
ii) $2000 per calendar year for major treatment;
iii) $2000 lifetime maximum for orthodontic treatments.
Covered expenses are reimbursed according to the current fee schedule the Ontario
Dental Association.
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PARTICULARS [definitions]
Dependents
. .
Your spouse or your children or your spouse's children, whether taken individually or
collectively. If dependents are insured under this policy, the words spouse and child
have the following meanings (details omitted). .
Employee
A person actually working in a permanent manner and receiving regular salary for
services rendered.
ELIGIBILITY
You must complete an application card supplied by your employer, for yourself and
your dependents, if any. You become eligible for insurance on the date "that you have
satisfied the eligibility peqod specified in the Summary of Benefits,
, I
Your dependents become eligible for insurance at the later of the following dates:
1. The day of which you become eligible.
2. The date on which you had a dependent for the first time,
If your dependents are already insured, any person who subsequently becomes a
dependent is immediately insured without any notice being required.
WSURANCEAGREEMENT
If as a result of accidental injury, illness or pregnancy, you or one of your dependents
incurred expenses for care and services described thereafter, the insurer will reimburse
the covered expenses, subject to the terms and conditions hereinafter specified.
The insurer reimburses these expenses subject of the deductible, the percentage of
reimbursement and the maximum covered amount specified in the Summary of Benefits.
COORDlNA TION AND LIMIT A TION OF BENEFITS
If you are insured under other group policies or government programs or where
coverage is required by stahlte, the benefits payable from all sources cannot
cxcecd onc hundred percent of expenses incurred; that is, benefits will not be
payable with respect to that portion of any eligible expense for which benefits arc
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payable by another plan.Benefits for eligible expenses incurred by your
dependents who are insured under this plan as well as another plan will be
determined on the following basis:
-- Where your spouse is insured as a participant under another plan, that portion
of an expense which is eligible for reimbursement under such plan will not be
payable;
-- Where your child is insured as a defendant under another plan, benefits will first be
payable under the present plan if your birth date occurs earlier in the calendar year in
relation to that of your spouse.
From the Legislation
THE ONTARIO LABOUR RELATIONS ACT
48(12)(j) An arbitrator or the chair of an arbitration board, as the case may be has power
to interpret and mmlY human rights and other employment related statutes, despite any
conflict between those statutes and the tenns of the collective agreenfent.(emphasis
added)
54. A collective agreement must not discriminate against any person if such
discrimination is contrary to the Human Rights Code, or the Canadian Charter of Rights
and Freedoms.
ONTARIO HVMAN RIGHTS COnE
5(1) Every person has a right to equal treatment with respect to employment without
discrimination because of race, ancestry, place or origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same
sex partnership family status, or handicap.
10 (1) Marital status means the status of being married, single, widowed, divorced or
separated and includes the status of living with a person of the opposite sex in a conjugal
relationship outside of marriage.
78
With all due respect to the Majority's carefully reasoned decision, I am unable to
agree with their conclusion.
The Collective Agreement does not prescribe the circumstances under which the
employer must provide 'family' benefit coverage to bargaining unit employees. The
employer has unilaterally decided to provide the family level of coverage to employees
based solely on their status as a 'married' person under the terms of the Collective
Agreement. The Grievor clearly falls within this category and therefore he should be
treated in the same manner as similarly situated individuals and provided with the same
level of coverage.
In this case, the employer has opted to exercise its discretion in a manner which
treats the Grievor differently than other similarly situated individuals. The employer has
based their decision on the Grievor's level of coverage on an assessment of his
coverage under his spouse's benefit plan. The employer has not based their decision
on the level of coverage for other married employees on this basis. In fact, it does not
appear the employer has made any attempt to ascertain what coverage other married
individuals have under their spouse's plans and therefore whether provision of family
coverage would result in benefits to these individuals above the limits set out in the
Collective Agreement. It is only in the Grievor's case that these factors have been
considered and therefore management's exercise of its rights in this instance is
discriminatory, \
Furthermore, I disagree with the Majority that the union is requesting 'extra
benefits' to be provided to the Grievor above those provided to other bargaining unit
members. I believe in fact the Grievor is requesting the same benefits as those
provided to other married individuals. The Board has noted that, by their very nature,
the provision of benefit packages to employees necessarily provides different levels of
benefits to different employees. Those with a family receive a potentially higher benefit
than those without a family. The same is true of the Grievor. Due to his personal
circumstances it may be that the benefits afforded to him under these provisions of the
Collective Agreement are greater than those provided to 'single' bargaining unit
employees, But, this is no different than the same levels of benefits afforded to other
married individuals who have dependents.
For these reasons, I would have allowed the union's grievance and required the
employers to base their decision on the Grievor's benefits on the same criteria that they
base their decisions regarding other similarly situated bargaining unit members. This
would therefore result in the Grievor being provided with family coverage.