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Home My WebLink About2012-3907.Grievor.18-09-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2012-3907; 2017-0647 UNION#2013-0338-0001; 2016-0338-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel TELECONFERENCE September 7, 2018 - 2 - Decision [1] The Claimant, the Grievor, has filed an appeal regarding the denial of Long Term Disability Benefits. This matter has been through the Joint Insurance Benefit Review Committee (“JIBRC”) process and, in accordance with a Memorandum of Settlement dated June 15, 2015 (“the Memorandum”) and the Terms of Reference agreed to by the parties, it is now before me as Chair of the Claims Review Subcommittee (CRS). [2] The Employer has raised a preliminary issue. It takes the position that I am not permitted to hear submissions in this proceeding on the viva voce medical evidence that was called before me during the hearing of the Grievor’s termination grievance. This issue was addressed during a conference call held on September 7, 2018. Employer counsel filed written submissions on the issue in advance of the conference call and he and Union counsel also filed material for me to review prior to the conference call. [3] The Grievor’s employment as a Probationary and Parole Officer was terminated on January 14, 2013. A grievance was filed challenging the termination which included the allegation of discrimination based on human rights grounds. The arbitration proceeding required many hearing days throughout 2013, 2014 and 2015, during which I heard extensive evidence of the Grievor’s medical conditions. The parties resolved the grievance by entering into the Memorandum. The parties agreed that the Grievor shall be reinstated for the purpose of LTIP and that the date of eligibility commenced on January 14, 2013. The Grievor’s application for LTIP was denied. For the purposes of this motion, the relevant paragraphs of the Memorandum are as follows: 4. Should the Grievor’s LTIP benefits be terminated at any time she retains all rights of appeal, including an appeal to the Claims Review Subcommittee, in accordance with the terms of the Collective Agreement and the settlement… 5. The parties agree that Vice-Chair Ken Petryshen shall be appointed as the independent third party of the Claims Review Subcommittee established by s. 6 of Appendix 4 of the Collective Agreement to hear and determine any appeal, grievance or any other claim regarding the Grievor’s entitlement to LTIP benefits - 3 - and, in so doing, he may consider and rely upon the medical evidence heard to date in these proceedings. [4] The essence of the Employer’s position on this preliminary issue is set out in the following paragraphs of Employer counsel’s written submissions: 1. The preliminary issue before you, as the Chair of the Claims Review Subcommittee (CRS), is the proper interpretation of paragraph 5 of a memorandum of settlement dated June 15, 2015 between the parties… 2. The Employer submits that paragraph 5 does not permit you to hear submissions on the viva voce medical evidence from the GSB hearing relating to the termination grievance. In accordance with paragraph 5 of the settlement, this hearing sits as a meeting of the CRS and therefore is governed by the Terms of Reference for the CRS. These Terms of Reference specifically limits the scope of the parties’ CRS presentations to the information/record on file before the insurance carrier at the time the matter is removed from the JIBRC, with one other narrow exception. The language of Paragraph 5 does not override this restriction. Rather, the reference to “consider and rely” upon the evidence is simply giving effect to the practical reality that viva voce evidence heard at the GSB cannot be “unheard.” 3. The Employer’s interpretation is also consistent with the jurisprudence that the JIBRC/CRS process is a process that is concurrent but separate from a claim that is made under the Grievance Procedure of the collective agreement. Therefore, any application of paragraph 5 of the June 15, 2015 settlement should be interpreted in such a way as to avoid the commingling of the separate Grievance and JIBRC/CRS processes. [5] I note that the Terms of Reference provides that “Presentations by both parties will be based upon the information/record on file before the insurance carrier at the time the matter is removed from the JIBRC, the employee statement if any and MBS’s response to the statement.” [6] The Union’s position on this preliminary matter is simply that I am bound to give full effect to the agreement of the parties as contained in paragraph 5 of the Memorandum. The Union does not disagree with the Employer’s characterization of the JIBRC/CRS processes. However, it maintains that paragraph 5 of the Memorandum creates an exception for the purposes of this proceeding. The Union maintains that it was precisely because I heard extensive medical evidence relating to the Grievor during the GSB hearing that the parties agreed that I would be the Chair of the CRS and could consider and rely on that medical evidence when determining the Grievor’s entitlement - 4 - to LTIP benefits. Union counsel referred me to Collective Agreement, statutory and general administrative law principles to support the Union’s position that I can entertain submissions on the viva voce medical evidence that I heard during the GSB arbitration proceeding. Counsel also argued that the language of paragraph 5 of the Memorandum indicates that parties intended that I could hear submissions relating to that medical evidence. [7] Employer counsel relied on OPSEU (Dales) and Ministry of Correctional Services (2002), GSB No. 1280/00 (Mikus). Union counsel relied on the following decisions: OPSEU (Union) and Treasury Board Secretariat (2017), GSB No. 2017-1802 (Parmar); OPSEU (Union) and Treasury Board Secretariat (2018), GSB No. 2016-0901 (Briggs); Quebec Labour Relations Board v. Canadian Ingersoll Rand Co. Ltd. et al., [1968] S.C.R. 695; Re Downing and Graydon, 92 D.L.R. (3d) 355 (Ont. CA); and, Construction Workers Union, Local 151 v. Saskatchewan (Labour Relations Board), 2017 SKQB 197. [8] In considering this preliminary issue, I have carefully reviewed the material provided to me by counsel, including article 22.9 and Appendix 4 of the Collective Agreement, the Terms of Reference dated July 20, 1999 and the Addendum dated September 2000. I have also considered the submissions of counsel. It is my conclusion that the Employer’s motion on this preliminary matter cannot succeed. [9] It is clear that this is a CRS proceeding and that as a general matter it is governed by the Terms of Reference and the Addendum. I say as a general rule because it is always open to the parties to make exceptions to the usual procedures if they feel it is appropriate to do so in a given case. In my view, this is precisely what the parties did when they agreed to paragraph 5 of the Memorandum. They agreed that I would be appointed as the independent third party of the CRS and that I may consider and rely on the medical evidence I heard in the GSB proceeding when determining a claim about the Grievor’s entitlement to LTIP benefits. That evidence consisted of oral testimony and documents. Although the Terms of Reference does not permit the reliance of information that was not on file with the insurance carrier at the time the matter is removed from JIBRC, it is clear that the parties agreed in paragraph 5 of the - 5 - Memorandum that I could consider and rely on the type of medical evidence that the CRS process would not normally entertain. The wording in paragraph 5 of the Memorandum does more than simply give “effect to the practical reality that viva voce evidence heard at the GSB cannot be unheard.” In the normal course in a CRS proceeding, the parties would be entitled to make submissions on the evidence that is properly before the Chair. As a result of paragraph 5 of the Memorandum, the medical evidence, including the viva voce medical evidence that I heard in the GSB hearing is properly before me in this CRS proceeding. It would be quite odd for the parties to agree that I can consider and rely on such medical evidence but that the parties could not make submissions with respect to that evidence. The requirement for procedural fairness dictates that the Employer and the Union should have the opportunity to make submissions on any evidence before me upon which I can rely and consider. In my view, this includes the viva voce medical evidence relating to the Grievor that I heard during the GSB hearing. [10] It is for the above reasons that the Employer’s motion on the preliminary issue is hereby dismissed. Dated at Toronto, Ontario this 17th day of September, 2018. “Ken Petryshen” Ken Petryshen, Arbitrator