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Home My WebLink About1985-0033.McIlroy.86-11-04I. *i, I oNw?o cm EWLOYEES * GRIEVANCE SETTLEMENT BOARD IN TiiE MATTgR OF AN ARBITRATION - Under - THE CROWrj EMPLOYEES COLLECTIVE BARGAINING ACT Before \ THE GRIEVANCE SETTLEMENT BOARD Between: _. OPSEU (Donald McIlroy) - and - The Crown in Right of Ontario (The Ministry of Correctional Services) Before: ,R.J. Roberts, Vice-Chairman T. Traves, Member W. Lobraico. Member For the Grievor: Fcr the Employer: S. Ballantyne, Counsel Cavalluzzo, Hayes, Lennon Barristers and Solicitors .I. Hannah Staff Relations Branch .^ Grievor Employer Hearing: 2. INTWIM AWARD At the outset of the hearing in this matter, counse 1 for the Ministry objected to jurisdiction and requested that this objection be dealt with by the Board before proceeding to hear evidence on the merits.. We acceded to this request. The gist of the ,objection was that, essentially, the grievor was attempting to litigate under the Collective Agreement the re- jection by Confederation Life Insurance Company,of a claim for benefits.under the Employer's Supplementary Health and Hospital Insurance Plan. This, it was submitted, was a dispute between the insurance carrier and the grievor which should not be~the subject of an arbitration but rather a suit in civil court. For reasons which follow, the objection is d~ismissed. The grievance filed by the grievor raised a claim under Article 43.2 of the Collective Agreement, which reads, in pertinent part, as follows: The Supplementary Health and Hospital Plan provides for the reimbursement of ninety percent (90%) of the cost of prescribed drugs and medicines, one hundred percent (100%) of the cost of semi-private or private hospital accommodation to a maximum of twenty-five dollars ($25) per day over and above the cost of standard ward care, and‘one hundred percent. (100%) of the cost for the following services: . . . (c) Charges for private-duty nursing in the employee's home, by a registered nurse who is not ordinarily resident in the employee's home, and who is not related to either the employee or his dependents, provided such service was-recommended and approved by a licenced physician or surgeon: . . . :. It can be seen that under this provision the Employer was obligated 3. to provide a plan allowing an employee to.recover charges for private-duty nursing “provided such service was recommended and approved by a licenced physician or surgeon." (Emphasis suppl -The insurance plan that the Dmployer obtained, inter alia, to discharge its obligation under Article 43.2, supra, did not mirror this wording. It provided, in.pertinent part, as follows: _.. Eligible Expenses are those expenses incurred for services, treatments or supplies recommended as necessary by a physician that are reasonable and customary .(as determined by Confederation Life) in the area in which the employee resides. However, expenses incurred on an emergency basis outside Canada shall be treated as specified in the Eligible Expenses Clause. Eligible Expenses are restricted to the following items: ..& (D) Professional services of a registered graduate nurse in the employee's home, except any such nurse who is ordinarily a resident in the employee's home or who is related to the employee or his dependents. ied) Instead of covering charges for private-duty nursing whidh was "recommended and approved" by a physician, the policy covered private-duty nursing which was "recommended as necessary by a physician". This difference in wording constituted the nub of the dispute between the. parties. The Union claimed that the words "recommended as necessary" were more restrictive than 4. those used in the.Collective Agreesent, and accordingly the Employer was liable for having failed to carry out its obligation under Article 43.2(c) of the Collective' Agreement. Not surprisingly, counsel for the Ministry took the.position that Article 43.2 cc) had been satisfied because the wording of the policy reflected what was in the contemplation of the parties when they provided for coverage of private-duty nursing which was "recommended and approved" by a physician. Significantly, the claim of the Union was not based. upon the view that the Employer was obligated to provide the. benefits set forth in Article 43.2 of the Collective Agreement. The'only obligation of the Employer, it seemed to be agreed, .was to provide insurance which gave employees the benefits called for in the Collective Agreement. This was in accor~dance with the decision of this Board in Re Hooey and Ministry of Health (1983), G.S.B. #348/81 (weatherill). In that case, ths Board rejected a claim that a policy of~insurance that the employer was required to obtain was incorporated into the Collective Agreement so as to make arbitrable the claims of employees for benefits. Upon judicial review, the Divisional Court per Southey J.,' upheld this decision, stating, "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 provided, which provided the benefits called for under the Collective Agreement." - .I Endorsement of Southey J., May 18, 1984. 5. Considering the record as it now stands, the Board is unable to say whe,ther the Employer discharged its obligation to obtain a policy of insurance which provided the benefits called for under Article 43.2(c). The words "recommended and approved" are not specific in nature, and capable of wide inter- pretation., For example the word "recommend" has been defined as "to commend by favourable'representations; present as worthy .of confidence, acceptance, use." American College Dictionary, Random House, New York, at p. 1012. Likewise, the word "approve" has been defined as "to pronounce or consider good; speak or think favourably of." g., at p. 62. At first blush, then, it would appear that the obligation of the Employer under Article 43.2(c) was to provide insurance covering charges for private-duty nursing that a physician considered to be worthy of acceptance and a good or favourable thing to do in the circumstances. If it were the obligation of the Employer to furnish an insurance policy providing coverage of this breadth, it would have to be concluded that this obligation was breached. The words of the insurance policy,,providing~coverage for services which are "recommended as necessary" by a,physician, are much more restrictive in scope. The word "necessary" means, inter a, "something that cannot be dispensed with...[or] acting or proceeding.from compulsion or necessity". g. at p.~ 811. Clearly, it would not be enough for a physician to consider the services to be good or favourable: there would have. to be 6. some compulsion in the circumstances. In light of the above, the preliminary objection must be dismissed. The~grievance must be taken as raising a substantial issue whether the Employer discharged its obligations under Article 43.2(c) when it obtained the policy of insurance in question. At the moment, this is as far as the Board wishes to go in making any subs,tantive ruling. Specifically, the Board declines to make any ruling with respect to the actual scope of the Employer's obligation under Article 43.2(c). On this score, the Board did not have the benefit of any evidence bearing upon the actual' intent of the parties when they drafted the wording of this provision. We leave'open the possibility that what was in the contemplation of the parties might have been something more restrictive than indicated in the dictionary definitions of the words they chose to use. It.suffices to say that at this point, the Ministry did not show that it discharged its duty to furnish an insurance policy providing the benefits specified in Article 43.2(c) of the Collective Agreement. . The Board anticipates that on the next day of hearing in this' matter, it will hear evidence and argument touching upon the following issues: '(11. whether it was in the comtemplation of the parties at the.time of the Collective Agreement that the insurance coverage to be provided pursuant~to Article 43.2(c) ‘i._, 7. of the Collective Agreement was to be broader than private-duty nursing services recommended as necessary by a physician: (2) If so, whether the failure of the Employer to obtain coverage of appropriate,breadth resulted in the,denial of the grievor's claim. Of course, the parties will be free to raise any further issues that they deem essential to the disposition of this case. Dated at London, Ontario, this 4th day of November, . 1986. T. Traves, Member W. Lobraico, Member