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HomeMy WebLinkAbout1982-0566.Fairman.84-09-06IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ,THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hear-ix: -- OPSEU (Douglas B. Fairman)' Gr i evor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman J. Best Member A. McCuaig Member James Hayes, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors Michael Milich Staff Relations Officer Civil Service Commission October 19, 1983 -l- DECISION Mr. Douglas 8. Fairman, a CO2 with the Ministry of Corrections at Millbrook, grieved "the failure of the employer to comply with Article 43, Supplementary Health and Hospital Insurance, of the collective agreement between the parties." He requested "payment of 90% of the cost of prescribed medicines as provided in Article 43." The agreement in effect at the time the problem arose had been made on July 28, 1980. It included the following pro- visions in Article 43.1 and 43.2: 43.1 The Employer shall pay one hundred percent (100%) of the monthly premium of the Suppiementary Health and Hospital Plan. 43.2 Tne Supplementary Health and Hospital Plan provides for the reimbursement of ninety percent (90%) of the cost of prescribed drugs and medicines..... As explained by counsel, the griever's problem was that his two infant daughters suffered from an affliction known as galactosemia, for which a physician had prescribed nutramigen, a substitute for milk. F'or some years (but not recently) the griever was reimbursed by the carrier of the Plan (Confederation - 2 - Life Insurance Company) for the cost of the product prescribed. Although neit!?er Article 43 nor the insurance policy explicitly say so, it is apparent from references in both to "dependents", that coverage of an employee was intended to c,over them as well. The definition of "dependent" in the policy isn- eludes unmarried children under 21 years of age, and Article 43.3 provides that "it is not necessary for an employee or dependent to be confined to hospital to be eligible for benefits under this plan." Mr. Fairman grieved when the insurer decided to d~isl continue reimbursement for the cost of the product prescribed. There is no testimony on the point, but the Board has been in- formed that the product was regarded as a food rather than a drug or medicine. By reason of the jurisdictional issue discussled hereafter, there is no need to decide the status of nutramigen. The parties waived time limits so that the matte- could be considered by the Joint Insurance Benefits Review Commititee (established under Article 45) bwt there it was not resolv<Td. Thus Mr. Fairman's grievance did not come on for hearing b{? this Board until October 19, 1983. Our decision was reserved pending judicial review of Hooey 348/81. That was a case in which'the griever protested the termination of long term income protection -3- benefits, 'provided by Articl~e 41 and also car-r-i.ed by Confederation Life. The majority decision, authored by Chairman~ Weatherill, as he then was, reached the following conclusions at page H-9: The collective agreement requires that a poliq 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 griever's claim for payment oft 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 ciaims for benefits where it has, as the ccllective agreement requires, provided insur- &cc 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 aileoed contravention of the collective agreement itself.anda&not arbitrable. For the foregoing reasons the preliminary objection i tained and the grievance must be dismissed. s sus- In Hooey, the union‘s application for judi cial review was dismissed by the Divisional Court on May 18, 1984~. The record was endorsed by Mr. Justice Southey as follows: 'We are all of the view that the majority correct1.y interpreted the collective agreement as requiring the employee to provide insurance, not to provide the benefits referred to in the agree- ment. The parties are in agreement that a policy of insurance was provided, which provided the benefits called for under the collective agreement. That being so; the employee's claim should be against the insurer, not against the employer. We think the malority was'correct in its ruling on the preliminary objection. The application is dismissed with costs. - 4 - In this case also, ,the employer raised a prelimi~nary objection, based iargcly on the Board's decision in Hoes. - Now that Hooel has been upheld, it is clear that such claims under the policy cannot he successfully pursued against the employer. If this seems unjust, it is not something which can be corrected by this Board. In support of his preliminary objection, Mr. Xilich, representing the employer, said he relied on Hooey. He referred also to Livinqston Industries, unreported (Burkett) which fcllowed Firestone Canada (1976) 11 L.A.C. (2D) 59 (O'Shea) and Canadian Ohio Brass (1973) 3 L.A.C. (Zdl 27 (Weatherill). He said also that drugs are defined by section 113(d) of the Health Di.sciplines Act. which does not include "focd." Since the Board lacks jurisdiction to decide whether Mr. Fairman's grievance was well-founded, no finding can be made as to the result of the distinction, if any, between a prescribed food and a prescribed drug. One comment is appropriate ---. and lt is only a comment. When a physician discovers that an infant cannot tolerate a food normally considered essential for infants, and accordingly instructs the parent to use a specific substitute, it seems absurd to deny that the substitute is a medical necessity. To that extent the.distinction between a food and a drug seems absurd, but ifi our opinion the absurdity could be rectified only by amending the collective agreements --- and the insurance policy. For the grievor, Mr. Hayes submitted that Hooey had -- adopted the private sector jurisprudence without taking into account section 271 of the Insurance Act and Section 11 of the Interpretation Act; that Hooey failed to recognize the parties had incorporated the Insurance Plan "by reference" into their agreement; that Article 43 had promised certain benefits and to the extent that the Confederation Life policy failed to match those benefits the employer should be held liable. He pointed out that Article 43 mentions "medicines," but that word is missing from the policy. Among the cases Mr. Hayes cited were Andres (1901) 30 L.A.C. (2d) 259 (Christic~): N.S. Civil Service Commission (19801 24 L.A.C. (2d) 319 at 326 !Christie); Orenda J&s (1969) 20 L.A.C. 337 (Christie): Fanshawe College (1976) - 12 L.A.C. (2d) 189 (O'Shea); Nelson Lumber (19801 30 L.A.C. (2di 132 (Williams); Lufkin Rule (1973) 3 L.A.C. (2d) 295 (Brown). This Board is of the opinion that t3e issue raised by the preliminary objection in this case i:-: the same as the issue raised by th\e preliminary objection in Hooey. The principle explained in that decision has been affirmed by the Divisional Court and must bf respected. 1 - 6 - A concluding comment on the matter may bc: in order. This case , like Hooey and also Sekhon 418/S:, brings to light a serious -.- I_- anomaly. Cinder Article 27 of the collective agreement (and the Crown Employees Collective Bargaining Act) an employee and also the Union have the right to process grievances and resort to arbi- tration for "finai and binding" decisions on the merits of disputes. Articles 39 to 44 of the agreement confer important benefits as of right on al1 civil servants in the bargaining unit. The ci'fect of these decisions regrettably is to deprive civil servants of their right to arbitration under Article 2 7 in respect of claimed insurance benefits. There is nothing this Board can d3 to correct that anomaly. In the result the employer's preliminary objection is sustained and Mr. Fairman's grievance is dismissed. Dated at Rockwood, Ontario, this 6th day of September , 1984. E. B. Jolliffe~, Q.C., Vice Chairman A. McCuaig, Member EBJ:sol J<.. i :* FAIRMAN 566/82 ADDENDUM While I concur with the chairman that we are bound by the Divisional Court decision in Hooey, I am still of the opinion that the collective agreement between the parties provides for more than the payment and that the matter should be of insurance premiums arbitrable. Article 43. 1 provides for the payment of insurance premiums for the Supplementary Health Hospital Plan. If this was the only provision in the collective agreement then I would agree that the employer had met its commitment in paying the premiums, and that the qrievor's claim would be with the insurance carrier and not with his employer. However, this agreement also outlines the benefits which will be paid in Article 43.2. Because of this provision I submit that the employer is not only required to pay the premiums but, further, to ensure that the negotiated provisions of the collective agreement are met, which in this case is 90% of the cost of prescribed drugs and medicines. Article 43 establishes a benefit and the conditions under which the benefit is to be paid. This article is negotiated between the union and the employer. I - . . -2- Under the terms of this agreement if the I insurer fails to honour a claim under the terms of its policy, then the responsibility should fall on the employer to reimburse a claim for a benefit it has agreed to in the collective agreement. nice Best