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HomeMy WebLinkAbout2004-0050.Union Grievance.05-11-15 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-0050 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (Umon Gnevance) Association - and - The Crown In RIght of Ontano (Mimstry of Government ServIces) Employer BEFORE Manlyn A. Nairn Vice-Chair FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell BarrIsters and SOlICItorS FOR THE EMPLOYER DavId Strang ActIng AssocIate DIrector Mimstry of Government ServIces HEARING July 8 December 15 2004 January 4 & 5 Apn112, May 5 September 23 and October 18 2005 2 DeCISIon ThIS gnevance was filed on March 2, 2004 The partIes' dIspute concerns the InterpretatIOn of certaIn benefit provIsIOns In the collectIve agreement. AMAPCEO took the posItIOn that the language of the collectIve agreement was clear and unambIguous The employer asserted otherwIse Further to an Intenm rulIng dated July 7 2004 I heard eVIdence of the bargaInIng hIStOry and practIce between the partIes There IS actually lIttle dIspute between the partIes as to the facts They dIffer sIgmficantly however In theIr charactenzatIOn of those facts and the Impact of those dIfferences on the proper InterpretatIOn of the collectIve agreement. There are three Issues The first deals wIth the InterpretatIOn of the words "all prescnptIOn drugs" and the related language In ArtIcle 34 2(a) of the collectIve agreement. The second relates to the meamng of "dIagnostIc procedures" In ArtIcle 34 2(c) Both fall under the Supplementary Health and HospItal Insurance coverage In the collectIve agreement. The thIrd Issue centres on the defimtIOn for "dependent chIld" In the dental plan. Although the collectIve agreement references "dependent chIldren" In ArtIcle 35 (Dental Plan) It does not contaIn a defimtIOn of the term The partIes agreed that a fourth Issue dealIng wIth subrogatIOn of benefits would not be dealt wIth In these proceedIngs The relevant provIsIOns of the collectIve agreement proVIde ARTICLE 31- BENEFIT PLANS FOR FULL TIME EMPLOYEES 31 Benefits - General 311 "Benefit Plans" in Articles 31-36 means [sic] the Basic Life Insurance Plan, the Supplementary & Dependent Life Insurance Plan, the Supplementary Health and Hospital Insurance Plan, (including vision and hearing aid coverage), the Dental Plan, and the Long Term Income Protection Plan in force as of September 1 1997 with the Great West Life Assurance Company or any successor Plan. 31.2 Subject to the provisions of tins Agreement, the benefits contained in the Benefit Plans as they were constituted on September 1, 1997 shall be provided to full time employees on the same tenus and conditions as were in place on September 1, 1997 These benefits and tenus and conditions may only be altered by mutual agreement of the parties. 3 31 5 The benefits contained in the Benefit Plans are supplemented by the provisions of Articles 32-36 Where a conflict exists between the provisions of a Benefit Plan and this Agreement, the provisions of this Agreement shall prevail. Article 34 -- Supplementary Health and Hospital Insurance 34.2 The Supplementary Health and Hospital Insurance Plan shall include reimbursing employees for the following: (a) ninety percent (90%) of the cost of all prescription drugs that by law require a physician's prescription, including injectable drugs, and medicines prescribed by a licensed physician or other licensed health professional who is legally authorized to prescribe such drugs, and dispensed by a licensed pharmacist or by a physician legally authorized to dispense such drugs and medicine For clarity life-sustaining drugs shall continue to be covered on the same basis as under the previous collective agreement. Provided that a generic drug is listed in the Canadian Pharmaceutical Association Compendium of Pharmaceuticals and Specialties, reimbursement for drugs covered by the Plan will be based on the cost of the lowest priced generic version of the drug that the dispensing pharmacist can readily provide, unless the prescribing physician or health professional stipulates no substitution, in which case the reimbursement will be based on the cost of the drugs prescribed. (c) one hundred percent (100%) of the cost of diagnostic procedures, and radiology' THE BARGAINING HISTORY ThIS gnevance was filed pursuant to the terms of the collectIve agreement In operatIOn from Apnl 1 2001 to March 31 2004 It was the second collectIve agreement between the partIes However the language relevant to thIS dIspute was negotIated by the partIes In respect of theIr first collectIve agreement whIch expIred on March 31 2001 Those negotIatIOns began In 1996 contInued through 1997 and Into the late spnng of 1998 wIth ratIficatIOn occurrIng near the end of May 1998 Those negotIatIOns were complex and lengthy and the partIes were reqUIred to develop a sIgmficant famIlIanty wIth a multItude of Issues Robert Stambula, Vice-PresIdent of AMAPCEO and Michael Mitchell, counsel for AMAPCEO were members of the AMAPCEO bargaInIng commIttee and took the lead, on behalf of AMAPCEO In negotIatIng benefit Issues Heather Dnver partIcIpated on the AMAPCEO team. The composItIOn of the negotIatIng commIttee for the employer changed 4 dunng the course of bargaInIng. Dunng the dIscussIOns regardIng benefits, Bnan Garrah began as employer lead. Nancy FIsher took over towards the end of that process Ray Ladner then Labour RelatIOns AssIstant wIth NegotIatIOns Secretanat, and LInda Barber from Corporate Staff RelatIOns partIcIpated throughout the benefit plan negotIatIOns on behalf of the employer These partIes are SophIstIcated. They exchanged multIple proposals, took notes, and utIlIzed medIatIOn servIces I have receIved and revIewed the relevant proposals and the notes from theIr negotIatIOns and have heard the eVIdence of partIcIpants from both sIdes The folloWIng constItutes a bnef summary of, and my findIngs wIth respect to the relevant eVIdence As a general descnptIOn, the employer's first proposal on benefits, made In November 1996 undertook to contract wIth an Insurance carrIer for certaIn specIfied plans but dId not delIneate the detaIls of plan coverage AMAPCEO's first proposal, made on February 18 1997 took the OpposIte approach. It sought to Include sIgmficant detaIl regardIng the specIfics of benefit plan coverage At the tIme Mr Mitchell also artIculated AMAPCEO's phIlosophIcal approach as an Interest In greater consultatIOn and a less confrontatIOnal relatIOnshIp resultIng In what It vIewed as greater stabIlIty In labour relatIOns The employer's stated goal In negotIatIOns was to ensure a cost-neutral result for the benefit package WhIle the umon understood that to be the employer's posItIOn, AMAPCEO dId not accept that posItIOn and commumcated ItS VIew to the employer On August 7 1997 the negotIatIng teams met WIth the assIstance of EdwIn Harngan, a benefits specIalIst In the OPS He compared the lIfe Insurance proposals for the benefit of the partIes LInda Barber's, Ray Ladner's, and Heather Dnver's notes all reflect that the employer IdentIfied ItS cost neutral approach If there was any confusIOn as to the umon's posItIOn on August 7 1997 It was clanfied on August 12, 1997 In reVIeWIng the umon's proposal, Mr Garrah noted that the umon was lookIng for some enhancements He reIterated the employer's negotIatIng premIse that any enhancements would need to be offset by decreases In other areas Ms Barber's notes (as do Mr Garrah's) record Mr Mitchell's response as adVISIng that the umon dId not accept that there was a cost envelope, or that a zero sum result was the goal As Ms Ladner testIfied, Mr Mitchell was "qUIte passIOnate" on August 12 1997 statIng that AMAPCEO dId not accept that the employer could bargaIn only wIthIn a "zero envelope" 5 Pnor to negotIatIOns the employer provIded AMAPCEO wIth copIes of the eXIstIng Insurance plans and a copy of a benefit booklet (dated August 1992) prepared by the employer and dIstnbuted to employees The benefit booklet outlIned the scope of benefit coverage In lay terms and In some sIgmficant detaIl The IntroductIOn to that booklet made It clear that should there be any dIfference between the booklet and the terms of the vanous Insurance plans, the plans prevaIled. (a) The "all prescnptIOn drugs" Issue On August 12, 1997 the partIes dIscussed the "all prescnptIOn drugs" Issue AMAPCEO noted that Its proposal Included reference to "other lIcensed health professIOnals" as a means to proVIde greater chOIce to ItS members In CIrcumstances where care mIght be proVIded by for example, a nurse practItIOner who would also be lIcensed to prescnbe drugs Mr Stambula went on to dISCUSS what was not In the umon's proposal Ms Barber on behalf of the employer recorded the enSUIng dIscussIOn between the partIes as follows (Ex. 64) [Stambula] In 56(b )(i) we have not included the words customary and reasonable prescnptlOn drugs. You may think tlris broadens - we just didn t want to limit possibilities of unusual [treatments] ordered by physician who knows the patient and Iris/her needs [Harrigan] no - prescription [sic] speaks of reasonable & customary charges and medically necessary [Garrah] We re also concerned about your addition of the phrase injectable drugs - too broad & doesn t take into account the qualifiers in the policy [Stambula] I will review the policy and consider it. medically necessary - how does the carrier assess tlris? Eg. What if MD prescribes a drug to treat a condition for wlrich it is not normally used. Also there are cost savings (hard to quantify) to the [employer] when preventative drugs are prescribed. [Garrah notes that the employer will check into this] Also on medically necessary - there are governing bodies who oversee the practice of the specific health professionals - why does [insurance company] also look into medically necessary [Barber] What s your practical [solution]? [Stambula] 1 Ensure that carrier does provide a reason for not covering service/drug, when [employee] asks. 2 Don t allow carrier to second guess physician decision on medically necessary Mr Garrah's notes (Ex. 43) also record that the umon was of the VIew that the cost consequences were "IndIfferent to [the employer]" based on Mr Stambula's broader VIew that, for example preventatIve drugs could reduce lost work tIme IncIdence FolloWIng some dIscussIOn of the qualIfiers found In the Insurance plan (those beIng, reImbursement for drugs that are "medIcally necessary" for a "dIagnosed Illness or InJury" and payable at "customary and 6 reasonable charges") and In the context of the umon's concerns about delay and the potentIal scope of coverage, Mr Garrah noted Mr Stambula as statIng We ve said all [prescription] drugs" & put onus on medical [practitioners] - boards that regulate their conduct. AgaIn on August 18 1997 In the context of a dIscuSSIOn about "other lIcensed health professIOnals" and prescnptIOn drugs, Mr Mitchell reIterated the umon's posItIOn that If a drug was wIthIn the scope of the health professIOnal to prescnbe, It should be paid for by the benefit plan. That comment was made In response to the employer statIng that It preferred to remaIn wIth the language of the polIcy (whIch Incorporated the qualIfiers and lImIted the reImbursable prescnptIOn to one comIng from a physIcIan) AMAPCEO made the pOInt that an employee should not have to go to a physIcIan merely to get a prescnptIOn that theIr treatIng practItIOner could have prescnbed. At the same seSSIOn, Mr HarrIgan provIded the umon wIth InformatIOn regardIng how the Insurance carner Interpreted the term "medIcally necessary" that It was not In the habIt of second-guessIng the physIcIan. He noted that drugs for cosmetIc purposes were not covered (on the basIs that they were electIve rather than medIcally necessary) and that audIts were done from tIme to tIme partIcularly In the case of narcotIc prescnptIOns AlternatIve treatments could be paid at standard treatment rates Expenmental treatments generally reqUIred the carner to InqUIre further from the physIcIan. Mr Mitchell responded that the umon's proposal then shouldn't be a problem. He appears to have Interpreted thIS InformatIOn as reflectIng lIttle cost Impact for the employer by the umon's proposal The employer appears to have Interpreted hIS remark as some kInd of acceptance of the plan qualIfiers On September 25 1997 AMAPCEO tabled another benefit proposal ThIS proposal relIed on the wordIng of the plan documents that the partIes had exchanged, reVIewed, and dIscussed, and attempted to freeze those provIsIOns In ItS proposed ArtIcle 53 1 (whIch ultImately became ArtIcle 31 1) What was left to descnbe In ItS proposal, accordIng to AMAPCEO were thIngs not In the plan documents or thIngs whIch It was seekIng whIch were dIfferent from the plan. Mr Garrah's, Ms Barber's and Mr Stambula's notes record Mr Mitchell's comments as referencIng these two elements Mr Mitchell reVIewed proposed ArtIcles 53 1 53 2 and 53 5 (now ArtIcles 31 1 31.2, and 31 5 of the collectIve agreement quoted above) and IdentIfied the IntentIOn that 7 the collectIve agreement "supplemented" the terms of the benefit plans and that the collectIve agreement provIsIOns would prevaIl over any conflIct between the two There was no apparent mIsunderstandIng of those terms However It IS at thIS stage that, In retrospect, one can see that the partIes developed dIfferent assumptIOns regardIng the negotIatIOns In reVIeWIng AMAPCEO's new proposal and In reference to the supplementary health and hospItal Insurance provIsIOn, Mr Mitchell IdentIfied that the umon had made three changes to the "exIstIng plan" (see Ex. 64 [Barber] Ex. 28 [Stambula], Ex. 48 [Ladner]) However In relatIOn to prescnptIOn drug coverage, what, In fact, AMAPCEO had done was amend ItS earlIer proposal SpecIfically WIth respect to ItS proposed ArtIcle 562(a) the umon had added the words "who IS legally authonzed to prescnbe such drugs" to supplement ItS proposal to Include "other lIcensed health professIOnals" AMAPCEO's February 1997 proposal had already sought to amend the language of the Insurance plan whIch expressly Included the vanous qualIfiers IncludIng "medIcally necessary" "reasonable and customary charges" and "for the treatment of a dIagnosed Injury or Illness" and whIch contaIned certaIn specIfic exceptIOns from coverage It was on that basIs that the conversatIOns concermng the qualIfiers occurred between the partIes In August 1997 AMAPCEO's proposed language In that regard dId not change It contInued to form the basIs of ItS new proposal subject only to the above-noted amendment. AMAPCEO's language In ItS September 25 1997 proposal regardIng the "all prescnptIOn drugs" Issue was dIfferent from ItS earlIer proposal only to the extent of seekIng to proVIde greater certaInty and comfort regardIng the parameters of the actIOns taken by a "lIcensed phYSICIan or other lIcensed health professIOnal" However the employer appears to have taken the words "changes to the eXIstIng plan" as representIng a move by AMAPCEO to adopt the terms of the Insurance plan subject only to certaIn changes, one beIng, recogmtIOn of "other lIcensed health profeSSIOnals who are legally authonzed to prescnbe drugs" Internally the employer IdentIfied AMAPCEO's new proposal on benefits as a "sIgmficant reposItIOmng" of ItS earlIer proposal It IS less clear that It saw the proposal as artIculatIng "dIfferences" from the plan as opposed to merely statIng "addItIOns" to the plan. (see Ex. 49 -Garrah's notes and comments from bnefing meetIng wIth KevIn Wilson folloWIng the September 25 1997 negotIatIOns) 8 At the same tIme, AMAPCEO IdentIfied thIS change as one that dId not Involve any cost element. Taken In the lImIted nature of an amendment from ItS pnor proposal, thIS IS no doubt accurate However the employer Interpreted that comment through the lens that It belIeved AMAPCEO was adoptIng the terms of the plan. It appears to have adopted that conclusIOn wIthout further regard to the dIfferences In language between AMAPCEO's proposal and the terms of the Insurance plan. For example AMAPCEO's proposal contInued to run counter to the employer's earlIer stated posItIOn that It would not consIder reImbursement for Injectable drugs as It vIewed that InclUSIOn as an enhancement to the plan. There was no dIscussIOn about whether the UnIon contInued to treat thIS language In ItS broader scope as elImInatIng the plan qualIfiers, partIcularly the carner's query of "medIcally necessary" The employer dId not questIOn AMAPCEO or seek any clanficatIOn on the pOInt. The partIes also had dIscussIOns on September 25 1997 about the umon's proposed Increases to semI-pnvate coverage, chIropractIc coverage, and heanng aid coverage Mr Mitchell agaIn reIterated that the umon dId not accept the notIOn of a cost 'envelope' At thIS Juncture AMAPCEO also IndIcated that the umon mIght be wIllIng to look at tradIng-off a pre- eXIstIng health and safety provIsIOn regardIng eye exams for employees USIng VDT' s An employer draft proposal dated September 30 1997 noted AMAPCEO' s proposed ArtIcles 53 1 53.2, and 53 5 as agreed to by the employer Further dIscussIOn on these Items dId not occur however untIl November 1997 Between September and November 1997 Mr Garrah left and was replaced by Ms FIscher On November 26 1997 the employer tabled ItS counter- proposal on benefits It advIsed AMAPCEO that It was able to agree wIth, among others, ItS proposed ArtIcles 53 1 53 2, 53 5 and 56 2(a) It noted that It was stIll explonng other formulae and cost reductIOn optIOns In respect of semI-pnvate, chIropractIc, and heanng aid coverage ArtIcle 56 2(a) provIded 56.2 The Supplementary Health and Hospital Insurance Plan shall include reimbursing employees for the following: (a) ninety percent (90%) of the cost of all prescription drugs, including injectable drugs, and medicines prescribed by a licensed physician or other licensed health professional who is legally authorized to prescribe such drugs, and dispensed by a licensed pharmacist or by a physician legally authorized to dispense such drugs and medicine (ArtIcle 56.2 became ArtIcle 34.2 In the first collectIve agreement and remaIned so 9 numbered In the collectIve agreement before me ) In costIng InformatIOn attached to Its November 26 1997 proposal, the employer IdentIfied mandatIng genenc drugs and elImInatIng over-the-counter drugs from coverage as two areas of potentIal cost-savIng under drug coverage The umon sought clanficatIOn of these Items and ultImately on January 8 1998 the partIes negotIated lImIts on drug coverage by provIdIng for reImbursement of the value of the genenc verSIOn of the drug unless the prescnptIOn stIpulated that there be no SubstItute That lImItatIOn was added to the already agreed to language of ArtIcle 56 2(a) In conjUnctIOn wIth the partIes' final negotIatIOns WIth respect to the other benefit 'cost' Items noted earlIer (semI-pnvate, chIropractIc and heanng aid coverage) By early 1999 and dunng the operatIOn of the first collectIve agreement, the partIes became aware that they held dIffenng VIews as to the scope of ArtIcle 34 2(a) as a result of theIr dIscussIOns at theIr JOInt Benefits RevIew CommIttee (dIscussed below) In theIr second round of negotIatIOns, for the 2001-04 collectIve agreement, the partIes agreed to elImInate reImbursement for certaIn over-the-counter drugs by addIng the words, "mnety percent of the cost of all prescnptIOn drugs that by law reqUIre a physIcIan's prescnptIOn" In the opemng phrase of ArtIcle 34 2(a) subject to the added proVISO that "lIfe- sustaInIng drugs or medICIneS shall contInue to be covered on the same basIs as under the prevIOUS collectIve agreement" Tom Rouse, a Semor Account Manager wIth Great West LIfe Assurance Co ("GWL") and responsIble for the Insurance plan covenng AMAPCEO members, agreed that GWL has a dIscretIOn to reImburse for the cost of a drug If, tYPIcally In a lIfe-threatemng sItuatIOn a drug has been prescribed outsIde a norm of "reasonable and customary treatment" (b) The "dIagnostIC procedures" Issue The dIscussIOn of the Issue of "dIagnostIC procedures" began on September 25 1997 In ItS earlIer proposal AMAPCEO had put forward that the employer pay 100% of the cost of "dIagnostIC procedures, radIOlogy blood transfUSIOns, oxygen and ItS admInIstratIOn" Its September 25 1997 proposal In ArtIcle 56.2(c) contemplated that the employer reImburse 10 employees for "one hundred percent (100%) of the cost of diagnostIc procedures, and radIOlogy" AMAPCEO explaIned thIS shortened proposal on the basIs that they had found thIS coverage In the benefit booklet but, specIfically could not find reference to "dIagnostIcs" or "radIOlogy" In the Insurance plan. Therefore AMAPCEO had made express reference to these Items In ItS proposal AMAPCEO had no partIcular InformatIOn as to the scope of thIS coverage AMAPCEO stated that the proposal had been Included because of ItS presence In the benefit booklet and It had assumed there was substantIve meamng to the language In ItS counter proposal on November 26 1997 (whIch was adapted from AMAPCEO's September 25 1997 proposal) the employer would not agree to AMAPCEO's proposed language In ArtIcle 56.2(c) on the basIs that the benefit booklet was out of date and that the language was redundant because dIagnostIC procedures and radIOlogy were covered by OHIP Ms Ladner's notes of November 26 1997 record Mr Mitchell as commentIng that the umon had "assumed that [there] must be some not covered" In the context of a dIscuSSIOn about dIagnostIC procedures and OHIP Mr Stambula took the employer at ItS word, as It was also responSIble for runmng OHIP AMAPCEO understood the proposal to provIde coverage for any dIagnostIC procedure or radIOlogy not covered by OHIP and, based on the employer's InfOrmatIOn, understood It to be a "Just-In-case" clause AMAPCEO pursued InclUSIOn of the clause on the basIs that there could be changes to OHIP even though the employer stated that It dId not antIcIpate any such changes The employer belIeved the clause to be cost neutral on the basIs that It referred to dIagnostIC procedures and radIOlogy whIch were covered by OHIP Ms Barber's notes (Ex. 65) record that on November 26 1997 the employer IndIcated that It felt that the provIsIOn was redundant; however It had "no problem leavIng It In" Ms Barber testIfied that the employer understood that AMAPCEO dId not consIder thIS provIsIOn to be an enhancement. AMAPCEO was seekIng to maIntaIn a benefit that the employer was already provIdIng accordIng to the benefit booklet, although there was no reference to It In the Insurance plan. However there was no dISCUSSIOn between the partIes as to the specIfic matters captured by the words "dIagnostIC procedures" The umon dId not create or provIde a lIstIng of dIagnostIC procedures Mr Stambula took the words as "self-eVIdent" The employer dId not IdentIfy those dIagnostIC procedures captured by the benefit reflected In the benefit booklet. The language was sIgned off on January 8 1998 wIth no further substantIve dISCUSSIOn. 11 Mr Rouse testIfied that GWL IS able to provIde dIagnostIc coverage In an Insurance plan but that It tYPIcally Includes a narrow band of Items He further testIfied that such coverage has not been part of the OPS Insurance plan dunng the penod of hIS expenence from 1984 He produced a lIst of Items typIcally Included In dIagnostIc coverage That lIst reflected examples drawn from propnetary medIcal adjudIcatIOn manuals created by GWL That lIst was not shared wIth the umon dunng negotIatIOns, nor IS there any eVIdence that the employer had reference to It. Nor IS the lIst publIshed by GWL Mr Rouse agreed that an Insurance contract tYPIcally would not IdentIfy the coverage specIfically rather the reference would lIkely be to "dIagnostIc, x-ray and lab tests" Darryl Leach IS a consultant In the desIgn, fundIng, and admInIstratIOn of benefit plans The employer IS one of hIS firm's larger clIents He agreed that a carner would not tYPIcally reVIew speCIfic dIagnostIc coverage wIth a clIent and noted that ItS cost IS usually Ignored In planmng. He was also aware of the evolvIng lIst of dIagnostIc coverage found In the manuals kept by Insurance compames but had not had any opportumty to reVIew such lIsts because of theIr propnetary nature Mr Rouse and Mr Leach both testIfied In chIef that eye exams and audIOlogIcal tests, If covered by an Insurance plan, would lIkely be found In the VISIOn and heanng aid provISIOns of the plan, rather than under dIagnostIcs coverage In cross-eXamInatIOn they both agreed that eye exams had never been covered In the OPS plan In any category Mr Rouse noted that speCIfic provISIOn for eye exams for those USIng VDTs In the OPS was admInIstered as a specIal benefit outSIde the Insurance plan. Although Mr Leach had never seen reference to eye exams In dIagnostIc coverage he noted that lIsts are tYPIcally not exhaustIve To the extent that Mr Leach had seen eye exams covered under VISIOn care WIthIn an Insurance plan, that coverage arose only after March 1998 when eye exams were first partIally delIsted from OHIP He assumed that pnor to March 1998 benefit plans In Ontano dId not cover eye exams Although not an expert, Mr Rouse dId agree that an ECG a PH test, and an eye exam would be conSIdered dIagnostIc procedures wIthIn the normal meamng of that term. Mr Leach noted that, broadly speakIng, there were many Inqumes that could be descnbed as attemptIng to dIagnose a condItIOn, such as chIropractIc or psychologIcal servIces, whIch one would not expect to see covered under a provISIOn for dIagnostIcs None of thIS was dIscussed at the bargaInIng 12 table (c) The "dependent chIld" defimtIOn In the dental plan There were no specIfic dISCUSSIOns In bargaInIng regardIng the defimtIOn of "dependent chIld" for purposes of the dental plan. AMAPCEO's proposal of September 25 1997 was eventually accepted by the employer wIth the addItIOn of certaIn opemng words In ItS proposed ArtIcle 572 whIch are not relevant here In preparatIOn for negotIatIOns however Mr Stambula had been proVIded wIth a copy of what the employer represented as the dental plan then In effect and the 1992 benefit booklet. The GWL dental plan defined a "dependent chIld" SImply (in thIS respect) as one less than twenty-five years old. There was no specIfic defimtIOn In the benefit booklet for the dental plan. The benefit booklet, In ItS general Introductory defimtIOns, Incorporated a 'student' qualIfier a reqUIrement that a 'dependent chIld' be between the ages of twenty-one and twenty-sIx years and In regular full-tIme attendance at an accredIted educatIOnal InstItutIOn. Although Mr Rouse was unable to proVIde any detaIls of any specIfic claims, he confirmed that GWL would adhere to the terms of the Insurance plan rather than any provIsIOn In the booklet. The date noted on the defimtIOn page of the dental Insurance plan proVIded to Mr Stambula was January 1 1994 On May 1 1996 havIng had the matter brought to hIS attentIOn by GWL, Mr Harngan authonzed GWL to amend the' dependent chIld' defimtIOn In the dental plan to Introduce the 'student' reqUIrement for a dependent between the ages of twenty -one and twenty-sIx years That amendment took effect ImmedIately and brought the dental plan In lIne wIth the defimtIOn In other benefit plans There was no dIspute that the dental plan, ImmedIately pnor to thIS amendment, dId not contaIn thIS qualIficatIOn. There was no dIspute that the amendment occurred dunng the 'freeze' penod between the partIes AMAPCEO was not advIsed of thIS change to the dental plan, nor dId It consent to the change AMAPCEO learned of the change to the dental plan In response to a demal of a claim by a member In the fall of 2003 THE PRACTICE Once the first collectIve agreement was In place, the partIes establIshed the JOInt Benefits RevIew CommIttee ("JBRC") as contemplated by ArtIcle 32 of the collectIve agreement. It IS 13 made up of equal numbers of representatIves from the employer and AMAPCEO The benefits provIded to AMAPCEO members (sImIlarly to the broader OPS) are self-Insured, that IS, although the employer utIlIzes GWL, an Insurance carrIer to admInIster the plans, nsk and lIabIlIty for payment of the benefits rests entIrely WIth the employer The dutIes of the commIttee are set out In the collectIve agreement and Include a claims reVIew process In cIrcumstances where a benefit claim has been demed by the Insurance carrIer In admInIstenng the terms of the plans The collectIve agreement provIdes for the resolutIOn of claims by JBRC IncludIng, If necessary a referral of the claim to an Independent arbItrator for determInatIOn. AMAPCEO first became aware of Issues regardIng prescnptIOn drug coverage when It learned that certaIn drug claims had been demed by the carner The "all prescnptIOn drugs" Issue was raised as early as February 26 1999 at JBRC In May 1999 AMAPCEO's posItIOn on the Issue was artIculated. The partIes were dISCUSSIng the demal of a claim for a prescnbed Injectable drug. GWL had advIsed, and the employer reIterated, that the drug was not a reasonable and customary treatment for the specIfied condItIOn. AMAPCEO responded that the IntentIOn In bargaInIng had been to remove such ambIgUIty On July 5 1999 AMAPCEO agaIn questIOned that GWL had Incorporated a notIOn of reasonable and customary treatment In ItS reVIew and demal of a drug claim. On that day AMAPCEO IndIcated that It would be prepared to consIder a staged approach that excluded vanous expenmental drugs In lIght of Mr Harngan's expressed concern In that regard. By August 13 1999 the employer had prepared a bnefing note that set out the full parameters of the dIspute between the partIes That dIscussIOn contInued whIle at the same tIme the partIes were able to resolve IndIVIdual cases In a settlement dated July 28 1999 the employer agreed to pay a claim for an arguably expenmental drug on a one-tIme only basIs and wIthout prejUdICe to eIther party's posItIOn on the language of the collectIve agreement. In a settlement dated December 15 1999 the employer agreed to pay the claim for the Injectable drug on a one-tIme only basIs and sImIlarly wIthout prejUdICe to eIther party's posItIOn. In a later case the carner had demed a claim for Viagra because It had been prescnbed to a female for a lIfe-threatemng respIratory condItIOn. When AMAPCEO learned of the demal It agaIn raised the matter at JBRC for reVIew In a settlement dated February 20 2002 the employer agreed to pay 50% of the claim PartIal reImbursement was accepted by AMAPCEO In order to 14 resolve the matter qUIckly gIven that the patIent had SInce passed away and the settlement was satIsfactory to the AMAPCEO member the patIent's spouse AgaIn that settlement was wIthout prejUdICe to eIther party's posItIOn on the language of the collectIve agreement. AMAPCEO was not aware of any Issue concermng the scope of the "dIagnostIcs" coverage untIl the fall of 2003 and dunng the lIfe of the second collectIve agreement. AMAPCEO first became aware of an Issue when a member complaIned that coverage for audIOlogIcal testIng had been demed. At that pOInt Mr Stambula became aware that audIOlogIcal testIng had been partIally delIsted from OHIP SInce that tIme, other claims have been raised wIth AMAPCEO and brought forward to JBRC An employee was Informed that GWL had advIsed that only a PSA test (a blood test for prostate cancer) was covered under thIS provIsIOn. Apparently the employer had at some pOInt gIven InstructIOn to GWL to reImburse for thIS test. Other claims rejected by the carner Included a PH test to determIne aCId bUIld-up In the oesophagus, a 24-hour blood pressure momtonng, and, the delI stIng of eye exams from OHIP has been raised. The partIal delI stIng of eye exams from OHIP In 1998 dId not result In any claims beIng brought to AMAPCEO's attentIOn. The employer suggested that AMAPCEO dId not understand coverage to be as broad as It was now assertIng based on ItS conversatIOns wIth members at ratIficatIOn of the first collectIve agreement. Mr Stambula testIfied that members had the words of the collectIve agreement and some may have had copIes of the old benefit booklet. He noted that members would have understood that both the benefit booklet and the plan would be subject to the terms of the collectIve agreement. An attempt to develop a benefits booklet for AMAPCEO-represented employees In 1999 had faIled. FolloWIng negotiatIOns for the second collectIve agreement, the employer agaIn tned to develop a benefits booklet for dIstnbutIOn to AMAPCEO members ImtIally the employer determIned to draft the booklet wIthout AMAPCEO's partIcIpatIOn. AMAPCEO objected and over a penod of dIscussIOns the partIes engaged In a more collaboratIve exerCIse However AMAPCEO came to the conclusIOn that the partIes' dIfferences on these three Issues could not be resolved for purposes of completIng the booklet. As a result, the partIes agreed to certaIn notatIOns In the booklet regardIng theIr dIsputes and AMAPCEO filed thIS gnevance 15 THE PARTIES' POSITIONS The Umon In very bnef summary AMAPCEO argued that there IS no ambIgUIty In the collectIve agreement. It relIed on the words of ArtIcles 342 (a) and (c) In conjUnctIOn wIth ArtIcles 31 2 and 31 5 of the collectIve agreement. If a partIcular benefit plan IS In conflIct WIth the terms of the collectIve agreement, AMAPCEO argued, the collectIve agreement provIsIOn prevaIls Furthermore, It argued, ArtIcle 31 5 contemplates that the collectIve agreement provIdes enhancements to what IS found In the Insurance plan. If there IS ambIgUIty argued AMAPCEO the eVIdence of negotIatIOns and practIce supported ItS asserted InterpretatIOn. On the prescnptIOn drug Issue, AMAPCEO had dIscussed ItS unwIllIngness to adopt the plan qualIfiers In the summer of 1997 Its proposed language, whIch was ultImately accepted, dId not change on that pOInt. The partIes recogmzed In 1999 that they had a dIspute regardIng the prescnptIOn drug Issue and sought to proceed as best as possIble wIthout the need for lItIgatIOn. When that proved ImpossIble to aVOId, thIS gnevance was filed. On the Issue of dIagnostIcs, AMAPCEO IdentIfied four outstandIng claims, audIOlogIcal tests, a PH test, a blood pressure momtor and eye exams AMAPCEO argued that there IS nothIng In the Insurance plan whIch lImIts or IS at odds wIth ArtIcle 34 2 (c) The clause was added to the collectIve agreement at AMAPCEO's InSIstence and acts, AMAPCEO argued, as a supplement to the Insurance plan. No qualIfiers appear In the clause argued AMAPCEO so eVIdence of standard Insurance coverage IS Irrelevant. AMAPCEO argued that the scope of the clause must be denved from the ordInary meamng of the words used and referred to a number of dIctIOnary defimtIOns to argue that 'dIagnostIc procedures" covered any procedure used to 'aid In dIagnosIs' With respect to the dental plan, AMAPCEO argued that the change to the defimtIOn of 'dependent chIld' In the plan was made whIle the partIes were In a freeze posItIOn, wIthout notIce and wIthout AMAPCEO's agreement, contrary to the provIsIOns of the Crown Employees Collective Bargaining Act As a result, It argued, the employer cannot rely on that alleged IllegalIty to assert the more lImIted defimtIOn as the one In effect as of September 1 1997 the 16 pOInt at whIch the terms of the dental plan were frozen by the agreement of the partIes Thus, argued AMAPCEO the employer cannot rely on the amendment. ThIS, AMAPCEO argued, went beyond a mere representatIOn by the employer In bargaInIng, and thereby goes beyond merely creatIng an estoppel However AMAPCEO argued, In the alternatIve, the employer would be estopped from relYIng on the amendment untIl such tIme as the partIes had negotIated theIr next collectIve agreement. The Emplover Also In very bnef summary the employer relIed on the eVIdence of negotIatIOns and practIce to argue the eXIstence of both patent and latent ambIgUItIes On the prescnptIOn drug Issue, It argued that the agreement was to contInue the Insurance plans In place unless amended by the partIes There was nothIng to suggest, It argued, that the normal caveats, typIcal to any Insurance plan, were to be removed. If the language IS clear argued the employer then the changes In ArtIcle 34.2(a) merely expand the lIst of lIcensed health professIOnals to be recogmzed and recogmze lImItatIOns on cost where genenc drugs are avaIlable AlternatIvely If one takes the Insurance plan, havIng been Incorporated Into the collectIve agreement, and the collectIve agreement language together the employer argued, AMAPCEO's InterpretatIOn reflected an ambIgUIty The employer noted the change In proposals by AMAPCEO It argued that the umon presented a proposal that It had drafted and told the employer that the change reflected an expanSIOn as to who would be recogmzed as able to prescnbe drugs There was no suggestIOn that the partIes were to lose the plan caveats or that thIS was a cost Item There was, argued the employer no dIscussIOn about massIvely expandIng the drug benefit. In the negotIatIOns regardIng dIagnostIcs, the employer argued, AMAPCEO was seekIng to ensure that It dId not lose anythIng. It raised dIagnostIcs as a matter found In the benefit booklet and the clause must therefore be Interpreted In that context. It must be lImIted, the employer argued, to what was covered by the terms of the benefit booklet. That, argued the employer gave nse to a latent ambIgUIty The employer relIed on the eVIdence of Mr Rouse to note that, tYPIcally 'dIagnostIc' benefits In a group Insurance plan represent a very lImIted lIst of low-cost tests In negotIatIng dIagnostIcs the employer said It was redundant because the Items 17 were covered by OHIP and on that basIs were prepared to put It In. The umon agreed and the employer relIed on that representatIOn. Mr Stambula was candId, argued the employer that the InclUSIOn was to protect members from an undetermIned loss No one, argued the employer expected It to pay for more than before The partIes understood the reference to dIagnostIcs to refer to matters covered by OHIP so at ItS hIghest, coverage was lImIted, argued the employer to that smaller category of Items The employer also relIed on the eVIdence of Mr Leach and Mr Rouse to argue that eye exams and audIOlogIcal testIng were covered by VISIOn and heanng care provIsIOns, not dIagnostIc coverage and, as thIS coverage was not provIded for In those provIsIOns of thIS collectIve agreement or the Insurance plan, AMAPCEO could not attempt to obtaIn the coverage under diagnostIcs Further the employer argued, AMAPCEO dId nothIng to challenge the employer's open and notonous practIce regardIng both prescnptIOn drug claims and claims for dIagnostIc procedures, leadIng to the conclusIOn that It conformed to the employer's VIew of the collectIve agreement language The Issue of the applIcatIOn of the qualIfiers In the drug plan was known to AMAPCEO In 1999 gIven the demal of claims AMAPCEO was therefore aware that the employer was gIVIng InstructIOns to the carner to apply the caveats and had not challenged the employer's practIce In any real way untIl thIS gnevance was filed. Thus, the employer argued, any ambIgUIty should be resolved on the basIs of upholdIng the plan caveats If AMAPCEO wanted to change the employer's practIce, the employer argued, the onus was on the umon to bnng forward a clear demand. The employer also noted that the prescnptIOn drug Issue was not hIghlIghted In the proposed benefit booklet In the same manner as the dental and diagnostIcs dIsputes, suggestIng that It was not an Issue for AMAPCEO SImIlarly AMAPCEO had raised no claim to eye exams as a diagnostIc procedure dunng the first collectIve agreement even though eye exams had been partIally delIsted from OHIP In 1998 SImIlarly audIOlogIcal tests had been delIsted In 2001 pnor to completIng negotIatIOns for the second collectIve agreement WIth no claim havIng been filed. With respect to the dental plan, the employer acknowledged that It had provIded an Inaccurate copy of the plan to the umon In advance of the negotIatIOns In that It dId not reflect the amended defimtIOn. However It argued that what was frozen as of September 1 1997 18 Incorporated the change to the plan. There was no eVIdence, the employer argued, that the umon specIfically relIed on the earlIer plan provIsIOn or had agreed to It In bargaInIng. Employees would not have known of any dIfference In the defimtIOn because they referred to the booklet whIch contaIned a defimtIOn wIth the lImItatIOn. That was the benefit whIch they were reCeIVIng. Thus, argued the employer the umon agreed to freeze benefits whIch members were reCeIVIng at the tIme The umon dId not raise any Issue dunng the first collectIve agreement. So at most, the employer argued, It must contend wIth the fact that It gave the umon an Inaccurate document. DECISION ThIS case gIves nse to the applIcatIOn of the most basIc pnncIples of contract InterpretatIOn. The task before me IS to determIne the IntentIOn of the partIes by InterpretIng the language of the collectIve agreement. Words are to be gIven theIr ordInary meamng. The partIes are assumed to have meant what they said. ExtnnsIc eVIdence may only be consIdered If there IS an ambIgUIty In the language "Doubtful meamng" does not nse to the level of legal ambIgUIty As noted by Vice-Chair DIssanayake In The Crown in Right of Ontario v Ontario Liquor Boards Employees Union (Pallotta) GSB# 1185/00 decIsIOn dated August 17 2001 Patent ambiguity is ambiguity on the face of the language of the document to be interpreted. Therefore, by its very nature, one can decide whether or not a patent ambiguity exists by examining the document itself .A latent ambiguity is an ambiguity not on the face of the document, but in its application to a particular set of facts. Extrinsic evidence will disclose a latent ambiguity in what otherwise appears to be a clear provision. (at page 5) I have also had regard to the folloWIng comments In Re Coast Hotels Ltd and Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40 (1995) 50 L.A.C (4th) 1 (Chertkow) In that regard, we adopt the views of arbitrator H. Allan Hope where he held The onus is upon the union to establish that the employer has agreed in clear and unequivocal terms to provide a money benefit to the employees as part of the compensation they are to receive .In Noranda Mines it was concluded that it was unlikely that an employer would select obtuse, unclear or ambiguous language in which to reflect an intention to confer a money benefit. The reasoning expressed in the decision is that parties can be expected to address the cost provisions of their collective agreement with particularity But the decision does not contemplate that a money benefit requires express language or that such provisions invoke some special interpretive standard 'Of course, the fact that the employer did not intend the result alleged by the union does not defeat the union interpretation if the language agreed upon dictates that result. I simply observe that, in my preliminary consideration of the language, I find it inherently unlikely that the employer would express the intention to confer substantial monetary benefits on employees in language from which the intention emerges obliquely or by inference (pages 11-12 Quicklaw) 19 As a general matter the fact that the collectIve agreement may provIde a benefit whIch IS greater than that provIded by the Insurance plan In eXIstence at September 1 1997 does not create any ambIgUIty The collectIve agreement contemplates that It may contaIn conflIcts or enhancements The partIes have provIded for that CIrcumstance In ArtIcle 31.2 and, more partIcularly In ArtIcle 31 5 ArtIcle 31.2 IS clear that the benefits contaIned In the September 1 1997 Insurance plan are frozen, "subject to" the terms of the collectIve agreement. ArtIcle 31 5 recogmzes that the collectIve agreement "supplements" the plan, that IS, It provIdes addItIOnal matenal, and further provIdes that the collectIve agreement terms prevaIl over the plan In the event of any conflIct between the two (a) The "all prescnptIOn drugs" Issue Contrary to the assertIOns of the employer a plaIn readIng of ArtIcle 34 2(a) dIscloses no ambIgUIty There IS a clear dIrectIOn that the Supplementary Health and HospItal Plan "shall Include" reImbursement for "mnety percent (90%) of the cost of all prescnptIOn drugs that by law reqUIre a phYSICIan's prescnptIOn " In cIrcumstances where the drug and medICIne IS a) prescnbed by a lIcensed phYSICIan or other health professIOnal legally authonzed to prescnbe such drugs, and b) the drug and medICIne IS dIspensed by a lIcensed pharmacIst or by a phYSICIan legally authonzed to dIspense such drugs There IS a recogmzed lImItatIOn that the plan need only reImburse drugs on the basIs of the cost of the lowest pnced genenc verSIOn of the drug unless the prescnbIng health professIOnal stIpulates no SubstItutIOns The language of "all prescnptIOns drugs" IS reInforced by clanfYIng that "Injectable drugs" are also Included. There are no other lImItatIOns or qualIfiers In respect of reImbursement such as those reflected by the plan. In lIght of ArtIcle 31 5 of the collectIve agreement, thIS dIrectIOn for payment prevaIls over the terms of the plan. The employer has argued that an ambIgUIty anses because the terms of the Insurance plan have been Incorporated by reference Into the collectIve agreement and effectIvely therefore, create a conflIct between the plan terms and ArtIcle 342(a) It argues that, because the plan forms part of the collectIve agreement, conflIcts cannot be resolved by ArtIcle 31 5 as neIther can be Said to prevaIl The argument does not reflect a reasonable readIng of the language The Insurance plan IS IdentIfiable as a pre-exIstIng document; ItS terms frozen as of September 1 1997 Its language IS not reproduced In the collectIve agreement. The collectIve agreement 20 references dIfferences from that plan and seeks to have those dIfferences prevaIl To find otherwIse would be to find that a conflIct eXIsted between all dIfferences, for example the payment of semI-pnvate hospItal coverage or chIropractIc servIces, an absurd result, and contrary to the IntentIOn and effect of ArtIcle 31 5 of the collectIve agreement. The eVIdence of negotiatIOns does not dIsclose a latent ambIgUIty It does dIsclose that the partIes were not of one mInd when they agreed to thIS language In the drug benefit. To the extent that the extnnsIC eVIdence sheds any lIght on the proper InterpretatIOn to be gIven to the language the eVIdence arguably supports the umon' s posItIOn. The Insurance plan specIfically artIculated the qualIfiers whIch the employer says contInue to apply AMAPCEO's first proposal In February 1997 used dIfferent language Use of dIfferent language In and of Itself tnggers the query If not the assumptIOn, that the Intended meamng IS also dIfferent. Furthermore In dIscussIOns In the summer of 1997 concernIng the umon's February proposal, the umon specIfically IdentIfied those dIfferences by raiSIng ItS concerns regardIng the carner "second-guessIng" the physIcIan. Mr Harngan obtaIned clanficatIOn from the carrIer as to ItS approach to determInIng "medIcally necessary" There were vanous dIscussIOns They Included concerns raised by the employer about the InclUSIOn of Injectable drugs AMAPCEO raised concerns about the carrIer makIng decIsIOns regardIng expenmental drugs or drugs used In treatments not consIdered to be standard by the carrIer AMAPCEO expressed concerns about delays In reImbursement and a lack of reasons provIded by the carrIer for demals On August 12, 1997 although Mr Stambula appeared to IndIcate that he would reVIew the polIcy wIth an eye to the Injectable drug Issue, there can be no doubt that the umon IdentIfied that ItS proposal In then ArtIcle 56 2(a) was Intended to be dIfferent from the Insurance plan drug benefit. It noted that the employer mIght thInk that ItS language broadened the plan. There was some confusIOn regardIng termInology Mr Stambula advIsed that the umon's proposal dId not Include the words "customary and reasonable" In the context of explaInIng that the umon dId not want to lImIt the possIbIlIty of unusual treatments havIng been ordered by the attendIng physIcIan. Although Mr HarrIgan pOInted out that the terms used In the plan were "medIcally necessary" and "reasonable and customary charges" It appeared that the carner dId address a 21 form of "reasonable and customary treatment" In asseSSIng whether a partIcular prescnptIOn was "medIcally necessary" The employer's notes from the negotIatIOns make clear that the umon's solutIOn to these problems was two-fold, 1) ensure the provIsIOn of reasons by the carrIer and 2) not allow the carrIer to second-guess the physIcIan decIsIOn on "medIcally necessary" That second pOInt reqUIres the elImInatIOn of the "medIcally necessary" qualIfier HavIng IdentIfied those dIfferences from the plan, the umon tabled ItS second proposal on September 25 1997 Its proposed ArtIcle 562(a) was IdentIcal to ItS first proposal save the addItIOn of the words, "who IS legally authonzed to prescnbe such drugs" However In explaInIng ItS new proposal, the umon IdentIfied what It felt were changes to the eXIstIng "plan" The employer Interpreted that statement as meamng that the umon had sIgmficantly repOSItIOned Itself In respect of supplementary health and hospItal benefits At the same tIme It was aware that the umon had merely amended ItS proposal from February In respect of ArtIcle 56.2(a) The new proposal also clearly contInued to Include coverage for Injectable drugs AccordIng to Ms Ladner's notes, Mr Mitchell made reference to AMAPCEO's earlIer proposal as applYIng to "lIcensed health professIOnals" The employer ImplIed that that was the only dIfference from the plan's language Yet there had been much broader dIscussIOns concernIng the earlIer proposal and that earlIer language contInued to form the basIs of AMAPCEO's second proposal The employer agreed to that language on November 26 1997 The employer belIeved that It was agreeIng to a proposal that now Included the qualIfiers found In the Insurance plan. The umon belIeved otherwIse The partIes subsequently agreed to further language whIch bases the amount to be reImbursed on the cost of the genenc drug, subject to no SubstItutIOns havIng been dIrected by the prescnbIng health professIOnal Does the eVIdence of negotiatIOns reflect any representatIOn made by AMAPCEO upon whIch the employer relIed to ItS detnment In agreeIng to ArtIcle 34.2(a)? As noted earlIer the only suggestIOn of any representatIOn that mIght lead the employer to conclude that the umon was acceptIng the qualIfiers In the Insurance plan was the comment by Mr Mitchell on September 25 1997 that AMAPCEO's new proposal represented changes from the eXIstIng "plan" and that the umon dId not VIew ItS amendment to the proposed ArtIcle 56 2(a) as a cost Issue Does that amount to a representatIOn In law? I am not so persuaded. GIven the InformatIOn contaIned In the documents and the partIes' dIscussIOns, at ItS hIghest, AMAPCEO sent a contradIctory message to the employer The September 25 1997 amendment to proposed ArtIcle 22 562(a) dId not represent an addItIOnal cost from AMAPCEO's earlIer proposal The umon re- tabled proposed ArtIcle 56 2(a) subject only to words added to ensure that the prescnbIng health professIOnals were to be actIng wIthIn the scope of theIr authonty It IS dIfficult to see how the employer understood thIS change to the proposal as reflectIng a change to the "exIstIng plan" The Insurance plan made no reference to "other lIcensed health professIOnals" The proposed change to ArtIcle 56.2(a) on September 25 1997 would have had lIttle meamng applIed dIrectly as an amendment to the plan. The partIes understood that the umon was referencIng ItS earlIer proposal to Include "other lIcensed health professIOnals" and was attemptIng to proVIde greater certaInty regardIng the scope of theIr actIvItIes On the face of the documents before the partIes there was an InCOnsIstency between the plan and the plaIn words of the umon's proposal as to the scope of the drug benefit. The umon's September 25 1997 proposal also contaIned the proposed ArtIcles 31.2 and 31 5 In a dIfferent and more dIrect format from ItS February proposal Mr Mitchell revIewed those provIsIOns for the employer The umon's stated IntentIOn was that the collectIve agreement provIsIOns would prevaIl over the terms of the Insurance plan. Thus the umon commumcated that ItS proposed ArtIcle 56 2(a) would prevaIl over the Insurance plan In any conflICt. As noted earlIer the documents and dIscussIOns of September 25 1997 must also be vIewed In the context of the partIes' prevIOUS dIscussIOns about the umon's February 1997 proposal and the plan qualIfiers The employer was aware of the umon's concerns regardIng the qualIfiers The umon contInued to advance the same language In the new proposal as It had In the February proposal, subject only to addItIOnal words added to ensure that the health professIOnals were to be actIng wIthIn the scope of theIr authonty Even apart from the apparent contradIctIOns between the plan language and the proposal, It IS dIfficult to see how the addItIOnal language In the September 25 1997 proposal could be seen to sIgmfy acceptance of the qualIfiers In lIght of those earlIer dIscussIOns If anythIng, the proposed amendment confirmed the omISSIOn of the "medIcally necessary' qualIfier by seekIng to ensure that the health professIOnal would be actIng wIthIn the scope of theIr authonty and that the carner's reVIew would therefore be unnecessary Thus, whIle I am left wIth the VIew that the employer Interpreted the umon's September 25 1997 proposal as a "sIgmficant reposItIOmng" on the Issue of the drug coverage I am not persuaded that the umon made any representatIOn to the employer to that effect. 23 The practIce of the partIes WIth respect to prescnptIOn drug coverage also does not reflect any ambIgUIty In the negotIated language Nor does It reflect any representatIOn. The collectIve agreement was ratIfied In mId-1998 By early 1999 the umon had raised concerns about the carner's demal of certaIn drug claims By August 1999 the partIes had each revIewed theIr posItIOns at bargaInIng and each maIntaIned ItS VIew of the language NotwIthstandIng the employer's suggestIOn otherwIse, AMAPCEO cannot be faulted for not purSUIng a polIcy gnevance In CIrcumstances where IndIVIdual gnevances were beIng resolved to ItS satIsfactIOn, albeIt on a wIthout prejUdICe basIs NothIng can be drawn from the fact that AMAPCEO dId not InSISt on ItS dIspute regardIng drug coverage beIng reflected In the new benefit booklet. That was consIstent WIth ItS posItIOn that the collectIve agreement language was clear I note too that earlIer reference In the booklet to 'medIcally necessary' reflects the fact that other servIces and/or benefits appear to be so qualIfied. AMAPCEO had artIculated ItS preference to work collaboratIvely wIth the employer where possIble and not to rush to lItIgatIOn where that was not necessary Both partIes were aware of the dIspute gOIng Into the second round of negotIatIOns There was no onus on the umon to seek to clanfy the language In ItS VIew the language supported ItS posItIOn. The employer could have forced the Issue by refusIng to resolve a claim brought to JBRC Both partIes were content to Wait to see whether the problem would become unmanageable The employer relIed on the decIsIOn In Fort McMurray Catholic Board of Education and Alberta Teachers Assn, Local 48 (Vyboh Grievance) [1999] AG.AA No 49 to argue that In InterpretIng ArtIcle 34.2(a) one could not conclude that the partIes' Intended to exclude the normal plan caveats However In that case the collectIve agreement dId not contaIn a lIke provIsIOn to ArtIcle 31 5 nor dId the arbItratIOn board find a conflIct between the provIsIOns In that case the arbItratIOn board concluded that the partIes had negotIated the provIsIOn of a standard Insurance polIcy whIch Incorporated caps on payment. The decIsIOn IS therefore dIstIngUIshable I find therefore that ArtIcle 34 2(a) of the collectIve agreement reqUIres the employer to reImburse employee drug claims provIded only that the claim meets the reqUIrements of that provIsIOn of the collectIve agreement, that IS, that the drug and medICIne (whIch by law reqUIres 24 a physIcIan's prescnptIOn) has been prescribed by a lIcensed physIcIan or other lIcensed health professIOnal legally authonzed to prescnbe such drugs, and that It IS dIspensed by a lIcensed pharmacIst or a phYSICIan legally authonzed to dIspense such drugs and medICIne (The qualIfiers wIthIn ArtIcle 34.2(a) regardIng reImbursement for genenc SubstItutIOns and lIfe-sustaInIng drugs are not specIfically before me ) (b) The "dIagnostIc procedures" Issue On the face of the words used In ArtIcle 34 2(c), there IS no ambIgUIty They can be gIven theIr ordInary meamng, If necessary by reference to usual dIctIOnary meamngs The words express a procedure performed for purposes of obtaInIng a dIagnosIs In the context of a supplementary health and hospItal plan, one would properly Interpret such a dIagnosIs to be In connectIOn wIth a medIcal condItIOn, whether physIcal or psychologIcal In Van Maele v Alberta Blue Cross Benefits COlp [2004] AJ No 367 the Alberta Court of Queen's Bench cIted the Shorter Oxford DIctIOnary meamng of "dIagnostIc" as 'pertaInIng to dIagnosIs" whIch In turn was defined as a "determInatIOn of the nature of the dIsease condItIOn, IdentIficatIOn of a dIsease by InVestIgatIOn of ItS symptoms and hIStOry also the formal statement of thIS" (at para. 39) The eVIdence of negotIatIOns does not reveal a latent ambIgUIty That extnnsIC eVIdence does not dIsclose that the partIes Intended the words to have a partIcular meamng whIch can be gleaned from a reVIew of the extnnsIC eVIdence Although both partIes dIscussed the proposal as maIntaInIng the benefit represented by the words In the benefit booklet, the partIes dId not IdentIfy the scope of that pre-exIstIng benefit. There was no dIscussIOn between the partIes as to the specIfic scope of the words "dIagnostIC procedures and radIOlogy" (The term 'radIOlogy' does not appear to be In dIspute between the partIes) AMAPCEO took the employer at ItS word that, whatever the term "diagnostIC procedures" captured, those matters were paid by OHIP As It had been advIsed that dIagnostIC procedures and radIOlogy were covered by OHIP at the tIme AMAPCEO saw the provIsIOn as "Insurance" should OHIP coverage change As It turns out, OHIP dId not and does not cover all dIagnostIC procedures However at the tIme AMAPCEO belIeved they were covered and therefore understood that It was agreeIng to Insurance for dIagnostIC procedures should they not be covered by OHIP The employer understood the clause as proVIdIng Insurance only for those dIagnostIC procedures and radIOlogy 25 referenced by the pre-exIstIng benefit and/or for dIagnostIc procedures then covered by OHIP There are three possIble InterpretatIOns reflected by the partIes' dISCUSSIOns The decIsIOn In Sterling Trucks v CA. W Local 1001 [2004] O.L.A.A. No 676 (Rayner) IS of lImIted, If any assIstance In that case the employer had made a statement In negotIatIOns confirmIng that tIme spent on lay-offs would not be counted towards wage progressIOn In accordance wIth ItS past practIce unless the partIes negotIated the matter otherwIse The umon accepted that statement. No negotIatIOns regardIng the matter were held. In findIng the collectIve agreement language ambIguous, the arbItrator consIdered that extnnsIC eVIdence The ambIgUIty was resolved havIng regard to and In favour of the employer's comment. In thIS case, there IS no eVIdence of acceptance of the same meamng to be gIven to words that, on theIr face, appear to mean somethIng else The employer argued that as the language had denved from the benefit booklet, It must be lImIted to what was referenced by the benefit booklet. The scope of that benefit was not artIculated In negotIatIOns The booklet provIdes no further descnptIOn. There was no reference to "dIagnostIc procedures" In any eXIstIng OPS Insurance plan. The documents reveal no ambIgUIty nor are they of any InterpretIve assIstance EVIdence of 'tYPIcal' coverage IS also of no assIstance FIrstly It formed no part of the partIes' dIscussIOns Secondly there IS no eVIdence that the benefit reflected In the booklet was 'tYPIcal' coverage ThIrdly the eVIdence was speculatIve and related, at best, to a penod folloWIng these negotIatIOns There IS no eVIdence to suggest that the partIes Intended that eye exams and audIOlogIcal tests, both dIagnostIC procedures, were to be covered only wIthIn the terms of ArtIcle 34.2( d) That provIsIOn allows for reImbursement of the cost of certaIn devIces, that IS, eye glasses and heanng aids (Any dIscussIOn of eye exams In negotIatIOns was lImIted to those exams whIch were provIded for VDT operators under a separate health and safety provIsIOn and are Irrelevant to the Issues before me ) The eVIdence of practIce does not dIsclose a latent ambIgUIty The employer noted the lack of any claims for eye exams folloWIng theIr partIal delI stIng In 1998 and dunng the operatIOn of the first collectIve agreement. It argued that claims had not surfaced untIl 2003 leadIng one to conclude that, In negotIatIOns, the umon understood and had not Intended the language to be as broad as It was now assertIng. However AMAPCEO receIved no claims or 26 concerns regardIng coverage for dIagnostIc procedures untIl 2003 at whIch tIme It pursued them. The umon IS not oblIged to 'beat the bushes' for claims to pursue When presented wIth an Issue regardIng dIagnostIc coverage It ImmedIately raised the matter wIth the employer and ultImately pursued that and other Issues In the context of thIS gnevance What representatIOns, If any dId the partIes make? AMAPCEO had represented to the employer that It wanted to achIeve the pre-exIstIng benefit found In the benefit booklet. It dId not know what that benefit was The employer told AMAPCEO that dIagnostIc procedures and radIOlogy referenced by the booklet were covered by OHIP The employer dId not tell AMAPCEO that the booklet dId not Incorporate coverage for "all" dIagnostIc procedures It IS not apparent that the employer turned ItS mInd to the pOInt. AMAPCEO took the employer at ItS word and, based on the general language, assumed It covered "all" dIagnostIc procedures AMAPCEO also knew that the employer belIeved that IncludIng the clause would not generate any ImmedIate cost to the employer They both treated the proVIsIOn as Insurance should OHIP change The partIes never however addressed or answered the questIOn of what was to be Included by the words "dIagnostIc procedures" AMAPCEO effectIvely agreed that the coverage captured those dIagnostIC procedures then covered by OHIP However AMAPCEO belIeved all dIagnostIC procedures were then covered by OHIP There IS no eVIdence to suggest that AMAPCEO was anythIng other than mIstaken In ItS belIef, based In large part on InformatIOn It receIved from the employer AMAPCEO's actIOns dId not amount to a representatIOn In law that was Intended to affect the partIes' legal relatIOns and upon whIch the employer relIed to ItS detnment In agreeIng to the words found In ArtIcle 34.2(c) of the collectIve agreement. Thus I find that ArtIcle 34 2( c) of the collectIve agreement IS to be Interpreted accordIng to the plaIn meamng of the words used. The claims raised by AMAPCEO all appear to relate to procedures utIlIzed In order to aSSIst In obtaInIng a dIagnosIs and are therefore, caught by ArtIcle 34 2( c) (c) The "dependent chIld" defimtIOn In the dental plan There IS no dIspute that, from the pOInt of voluntary recogmtIOn In 1995 and throughout 27 the penod of the negotIatIOns for theIr first collectIve agreement, the partIes were In a "freeze" pursuant to the terms of the Crown Employees Collective Bargaining Act IncorporatIng the provIsIOns of the Ontario Labour Relations Act, 1995 (the "LRA") SectIOn 86 of the LRA (and ItS predecessor) prohIbItS the employer from altenng " any other term or condItIOn of employment or any nght, pnvIlege or duty of the employees" except wIth the consent of the trade umon, dunng the tIme frame, essentIally In whIch the partIes are engaged In negotIatIOns There IS also no dIspute that at the tIme AMAPCEO was voluntanly recogmzed In 1995 the dental plan defimtIOn of "dependent" contaIned no reqUIrement that a chIld over twenty and less than twenty-sIx years of age be In regular full-tIme attendance In an accredIted educatIOnal InstItutIOn. Rather the plan sImply covered dependent chIldren who were less than twenty-five years old. The employer Instructed GWL to amend that defimtIOn In May 1996 to Incorporate the 'student' component, wIth the result that the benefit changed, and arguably became more restncted. To charactenze the document provIded to the umon as Inaccurate IS a mIsnomer The document provIded to the umon reflected the defimtIOn In place at the tIme notIce to bargaIn had been gIven. It was, In fact, entIrely accurate It contaIned a specIfic benefit; a "nght" or "pnvIlege" held by employees at the tIme of AMAPCEO's voluntary recogmtIOn, found In the terms of the dental Insurance whIch the employer had been provIdIng to these employees ThIS IS not a case where the nature of the benefit IS unclear or subject to vanatIOn dependIng on busIness eXIgenCIes of the employer Employees were entItled to be reImbursed for certaIn dental expenses Incurred on behalf of dependent chIldren. The genenc defimtIOn found In the benefit booklet IS Irrelevant. That document has no legal supenonty to the Insurance plan between GWL and the employer Nor IS there any eVIdence to support a conclusIOn that the benefit at the tIme of notIce to bargaIn was, In practIce, as descnbed by that genenc defimtIOn. SectIOn 86 of the LRA creates a stnct lIabIlIty There need not be any Improper motIve on the part of the employer In altenng terms and condItIOns of employment dunng the penod of the freeze for It to be found In vIOlatIOn of the sectIOn. Its legIslatIve purpose IS to provIde a stable foundatIOn from whIch the partIes may bargaIn. In May 1996 the employer umlaterally changed 28 the defimtIOn of dependent chIldren In the dental plan and altered a pre-exIstIng nght or benefit. It dId not seek or obtaIn AMAPCEO's consent. That umlateral change, I find, was In vIOlatIOn of sectIOn 86 of the Labour Relations Act, 1995 (a matter that I am reqUIred to determIne In the context of thIS dIspute and further to my authonty under the Crown Employees Collective Bargaining Act IncorporatIng sectIOn 48(12)0) of the Labour Relations Act, 1995) How does the employer's actIOn In 1996 affect the partIes' negotIatIOns In 1997 when they agree In ArtIcles 31 1 and 31.2 that the benefit plans are those In place as of September 1 1997? The employer argued that as of September 1 1997 the collectIve agreement Incorporated the change to the dental plan. There was no eVIdence, the employer argued, that the UnIon specIfically relIed on the earlIer plan provIsIOn or had specIfically agreed to It In bargaInIng. That appears to be the case The employer noted that employees would not have known of any dIfference In the defimtIOn because they referred to the booklet whIch contaIned a defimtIOn wIth the lImItatIOn and that thIS was the benefit whIch they were reCeIVIng. I have no eVIdence of practIce to show what employees were In fact reCeIVIng. On the other hand, Mr Rouse testIfied that GWL would have paid any claims on the basIs of the terms of the plan and not the booklet. The fact that the umon dId not specIfically rely on the provIsIOn In negotIatIng the dental plan IS of no consequence That has no beanng on what terms eXIsted as of the date of provIdIng notIce to bargaIn folloWIng voluntary recogmtIOn. I note that had the umon been asked to reVIew ItS matenal and specIfically advIse what It Intended the dependent chIld defimtIOn In the dental plan to be as of September 1 1997 It would have had reference In all lIkelIhood, to the document provIded to It by the employer That IS In fact how thIS dIspute arose, folloWIng an InqUIry from a member and a subsequent demal of hIS claim. There IS no basIs on whIch the employer may now seek to rely on the amended defimtIOn. NotwIthstandIng the fact that the amendment was made at the suggestIOn of the Insurer In order to have It conform to other plans, It was amended In vIOlatIOn of the LRA. The employer cannot rely on ItS own Improper actIOns The vIOlatIOn must be remedIed by placIng the partIes In the posItIOn they would have been In but for the vIOlatIOn. I find therefore that the relevant portIOn of the defimtIOn of "dependent chIld" In the dental plan between the partIes references the defimtIOn eXIstIng ImmedIately pnor to the May 29 1996 amendment, and contaInS no reqUIrement that a chIld less than 25 years old be In regular full-tIme attendance In an accredIted educatIOnal InstItutIOn. CONCLUSION (a) The "all prescnptIOn drugs" Issue I find that ArtIcle 34.2(a) of the collectIve agreement reqUIres the employer to reImburse employee drug claims proVIded only that the claim meets the reqUIrements of that provIsIOn of the collectIve agreement, that IS, that the drug and medICIne (whIch by law reqUIres a phYSICIan's prescnptIOn) has been prescnbed by a lIcensed phYSICIan or other lIcensed health professIOnal legally authonzed to prescnbe such drugs and that It IS dIspensed by a lIcensed pharmacIst or a phYSICIan legally authonzed to dIspense such drugs and medICIne (The qualIfiers wIthIn ArtIcle 342(a) regardIng reImbursement for genenc SubstItutIOns and lIfe-sustaInIng drugs are not specIfically before me ) (b) The "dIagnostIc procedures" Issue I find that ArtIcle 34 2 (c) of the collectIve agreement IS to be Interpreted accordIng to It usual and plaIn meamng to proVIde reImbursement for 100% of the cost of dIagnostIC procedures, and radIOlogy The claims raised by AMAPCEO In thIS proceedIng all appear to relate to procedures utIlIzed In order to assIst In obtaInIng a dIagnosIs and are therefore caught by ArtIcle 34.2(c) The employer IS hereby dIrected to reImburse employees for those claims (c) The "dependent chIld" defimtIOn In the dental plan I find that the relevant portIOn of the defimtIOn of "dependent chIld" In the dental plan between the partIes references the defimtIOn eXIstIng ImmedIately pnor to the May 1996 amendment, and contaInS no reqUIrement that a chIld less than 25 years old be In regular full- tIme attendance In an accredIted educatIOnal InstItutIOn. The proper defimtIOn IS that found In sectIOn 6 (b) (iv) of the dental plan (ExhIbIt 17) dated January 1 1994 30 HavIng regard to all of the above, thIS gnevance IS hereby allowed. I hereby remIt the matter to the partIes to determIne the appropnate outcomes of the specIfic claims based on thIS award. I wIll remaIn seIzed wIth respect to any Issue ansIng from the ImplementatIOn of thIS award. Dated at Toronto Ontano thIS 15th day of November 2005