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HomeMy WebLinkAbout1983-0418.Sekhon.84-08-24180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598-0688 418/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : Before: OPSEU (Jagjit Sekhon) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer E. B. Jolliffe, Q.C. Vice Chairman K. Preston Member I. J. Thomson Member For the Grievor: R. Wells, Counsel Gowling & Henderson Barristers & Solicitors For the Employer: P. Mooney Staff Relations Officer Management Board of Cabinet Hearing Date: December 13, 1983 -1- DECISION This is another case in which the result becomes inevitable in light of the Divisional Court judgment in Hooey 348/81 , delivered on May 18, 1984. On' an application by the Union for judicial review, the Court unanimously affirmed this Board's decision, authored by Chairman Weatherill, in which it was held that the grievor's claim for long term income protection benefits could not succeed against the employer, although the insurer's obligation to pay proper claims would be enforceable at law. In this case the grievor, Ms. Jaggit Sekhon, on April 15, 1983, grieved the denial of long term insurance benefits. Her benefits had been terminated by the insurer, Confederation Life Insurance Company, effective January 31, 1982. The matter was somewhat confused by the employer's decision to dismiss Ms. Sekhon. On April 1, 1982, the Director of the Operations Branch in the Ministry of Health wrote her (Exhibit 4) as follows; We acknowledge receipt of a medical report from Dr. Eric M.W. Reid, dated March 1, 1982. He indicates you would be unable to work at your previous job of keytape operator ever again. In addition, he con- siders you totally disabled for any gainful employment in the future. -2- In view of this medical report and since you are no longer eligible for benefits under the Long Term Insurance Plan, we have no alternative but to release you in accordance with the public Services Act section 22(3). Your release is effective April 1, 1982. If you should be reinstated with benefits under the Long Term Insurance Plan we will be prepared to consider reinstating your employee status with the Ministry ,of Health. We would suggest you may wish to forward the current medical information concerning your disability to the Insurance Company for review of your LTIP status. Nevertheless, the grievance before us relates to the termination of benefits; it is not a grievance against dismissal. In 1982 and 1983 various arrangements were made by the grievor and the insurer for a series of medical examinations, most of which occurred after the On May 14 and June 14, 1982, and again on March 21, 1983, the insurer wrote the grievor (Exhibits 6, 7 and 8) stating that there was not sufficient evidence of total disability to support her claim. The next letter (Exhibit 12) was from the Chief, Bene- fits Policy at the Civil Service Commission. On July 5, 1983, he wrote Ms. Sekhon as follows: The most recent medical information obtained from an examination carried out in British Columbia has now been fully reviewed by the medical consultants of Confederation Life Insurance Company. The results show that you are not totally disabled as defined under the Long Term Income Protection plan. -3- At a meeting of the Joint Insurance Benefits Review Committee on June 27, 1983, the committee was advised that you are ineligible for benefits and your grievance is therefore denied. The grievor had initially qualified for benefits under the collective agreement in force from January 1, 1980, to December 31, 1981, but her disqualification occurred during the period commencing January 1, 1982, when the subsequent agreement has been effective. There were some amendments embodied in the latter agreement, but not in the definition of "total disability" which reads (now in Article 41.2.4) as follows: Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and thereafter during the balance of the bene- fit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience. Also of some importance is the following provision in Article 41.5. 41.5 inate at the end of the calendar month in which an employee ceases to be a civil servant. If the em- ployee is totally disabled on the date his insurance terminates, he shall continue to be insured for that disability. Long Term Income Protection coverage will term- When the matter came on for hearing in December, 1983, the employer's representative made an argument that the grievor was -4- not entitled to arbitration under Section 18 and 19 of the Crown Employees Collective Bargaining Act because she had not been an "employee" since April 1, 1982. There is no need for us to deal with that argument because it is clear that the grievance cannot succeed as against the employer for the reasons set out in Hooey, supra. Hooey had been heard in November, 1982, and the decision is dated January 17, 1983. At the hearing of this case, the Board was aware that an application had been made for judicial review of Hooey and it became apparent that our decision of Ms. Sekhon's grievance should be reserved pending the result. The employer's representative, Mr. Mooney, had given notice in advance of a preliminary objection that the grievance is not arbitrable, and the issue was argued fully, Mr. Wells contending for the grievor that Hooey is not applicable. In Hooey, the majority of the panel chaired by Mr. Weatherill reached the following conclusions at pages 8-9: The collective agreement requires that a policy of insurance be provided. It is not itself a policy of insurance. In the instant case the employer has provided an appropriate policy of insurance. The grievor's claim for payment of benefits under that policy is not a claim arising under the collective agreement, but is rather one under the policy. It is the insurer's obligation to pay proper claims, and that obligation will be enforceable at law. It is not the employer's obligation to meet claims for benefits where it has, -5- as the collective agreement requires, provided insur- ance to cover such claims. Disputes, such as that in the instant case, relating to claims for benefits under the policy are not matters relating to the interpretation, application, administration or alleged contravention of the collective agreement itself, and are not arbitrable. For the foregoing reasons the preliminary objection is sustained and the grievance must be dismissed. The Union's application for judicial review of Hooey was dismissed by the Divisional Court on May 18 of this year. Mr. Justice Southey endorsed the record as follows: We are all of the view that the majority correctly interpreted the collective agreement as requiring the employer to provide insurance, not to provide the benefits referred to in the agreement. The parties are in agreement that a policy of insurance was pro- vided, which provided the benefits called for under the collective agreement. That being so, the em- ployee's claim should be against the insurer, not against the employer. We think the majority was correct in its ruling on the preliminary objection. The application is dismissed with costs. The Board was called on to consider a similar problem in Fairman 266/82, where the grievance alleged "medicine benefits" to be payable under Article 43.2 of the collective agreement. For the reasons given in Hooey, supra, the Board lacked jurisdiction to decide the merits in that case. It bears repeating that we have not been asked to adjudicate on the dismissal of Ms. Sekhon more than two years ago. What she sought was the restoration of her benefits, and -6- she did so by way of a grievance against the employer. The Board lacks jurisdiction to decide the merits of her case. If she has a claim for benefits, it can be pursued against the insurer, not the employer. The Board is of the opinion that the issue raised by the preliminary objection in this case is the same as the issue raised by the preliminary objection in Hooey. The principle explained in that decision has been affirmed by the Divisional Court and must be respected. In the result the employer’s preliminary objection is sustained and Ns: Sekhon’s grievance is dismissed. Dated at Rockwood this 24th day of August, 1984. EBJ:sol/pc Chairman K. Preston, Member (See attached addendum) I. J. Thomson, Member ADDENDUM 4/8/83 Jagjit Sekhon = Grievor Because of the decision in Hooey, I am compelled to agree with the Award. It is regrettable that the matter must end here with a possible injustice to the Grievor. Because of the Court decision, we are prevented from determining the facts in this matter. Surely the Employer did not intend that the Insurance Carrier should have the final determination as to whether an Employee is eligible for benefits or not. If they did, I would urge them to consider changes in their policy to allow the two parties to the Agreement to make the determination or some other body to do so. Anyone who had any dealings with Companies providing this form of Insurance knows that in most instances they are a cold, unfeeling body with little compassion. It was stated that the Grievor would have to proceed against the Insurance Company. In my opinion, this would be very difficult and costly and the average employee would be reluctant to set out on this path. I. Thomson