Award Number 97-029

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Award Date:	1997-10-23
Arbitrator:	Kirkwood, B. View awards by Kirkwood, B.
Municipality:	Port Hope View awards from Port Hope
Region:	Central View awards from Central
Classifications:	Insurance and Welfare Plans, Arbitrability, Benefits
Grievor:	A. Davis and B. Johns
Appearances:	J. Dunn and others, for the Association T. Whyte, C. Clifford, Student-at-Law and others, for the Employer
Length of Award:	11 pp
Collective Agreements Cit.	Uniform: Art. 19; Civilian: Art. 13
Statutory Cit.

Summary

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Insurance and Welfare Plans   Incorporation into collective agreement - Uniform and civilian members - Short-Term Disability benefits - Incorporation of insured plan into collective agreement not achieved by provision for top-up to benefits - Eligibility not arbitrable matter.

Arbitrability   Collective agreement limitations - Uniform and civilian members - Entitlement to Short-Term Disability benefits - Eligibility subject to terms of insurance plan - Plan not incorporated into collective agreement - Eligibility not arbitrable matter.

Benefits   Insurance plans - Uniform and civilian members - Denial of Short Term Disability by insurance carrier - Board obligated to provide plans and pay premiums - Board not responsible for benefits as long as policy consistent with standards set out in collective agreement.

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Facts

Grievor Davis was a member of the uniform service. Grievor Johns was a member of the civilian service. The grievors alleged that the denial of Short-Term Disability (STD) benefits by the insurance carrier (Great West Life) and top-up payments by the Board were in violation of the collective agreement.

Until the insurance carrier discontinued benefits, the grievors received payments from the Board for the first 7 days and benefits at the rate of 66.7% of salary from Great West Life thereafter, with a supplement of 33.3% of salary from the Board.

Article 19 of the uniform agreement and Art. 13 of the civilian agreement stated that the Board "shall provide" a weekly indemnity benefit programme and pay 100% of the premiums, with the following proviso: "It is understood that eligibility for benefits pursuant to the programme shall be subject to the terms of the plan itself." Both articles provided for the Board to top-up benefits to 100% of salary.

Argument

The Board raised a preliminary objection that the grievances were inarbitrable. The Board argued that its obligation was limited to paying the premiums for the plan. It was not liable for benefits. The plan was not part of the collective agreement. Eligibility was determined by the insurance carrier and was a matter arising outside the collective agreement.

The Association argued that the Board was obligated to provide disability coverage, either by supplementing payments or by paying the entire amount if the insurance company failed to make payments. The Association relied on the recent Ontario Court of Appeal decision in Pilon in contending that the denial of benefits to the grievors was arbitrable.

Award #

The Arbitrator analyzed the collective agreements using the "four category" matrix for insured plans as described in Brown & Beatty (para. 4:1400).

The Board was obligated to provide a policy that conformed with the collective agreement, but not to provide benefits. The parties had explicitly subjected determinations of eligibility to the plan itself. The plan was not incorporated into the collective agreement, and the provision for top-up by the Board was a supplement to, not a substitute for, benefits. The provision for top-up thus did not have the effect of

incorporating the plan by reference.

There was no evidence that the parties intended the Board to be a guarantor of benefit payments. In fact being a guarantor was inconsistent with the Board's undertaking to pay premiums.

The Pilon decision did not stand for the broad proposition that all issues of insured benefits under collective agreements were within the exclusive jurisdiction of labour arbitrators. The Pilon decision was distinguishable by the incorporation of the policy into the collective agreement in that case.

Provided the policy was consistent with the standards set out in the collective agreement, the Board was not responsible for benefits. Issues of eligibility were not otherwise matters arising under the collective agreement and were therefore not arbitrable.

Authorities Cited

* Brown & Beatty, Canadian Labour Arbitration para. 4:1400
* Re A.E. McKenzie Co. Ltd. and United Food & Commercial Workers Union, Local 832, 37 L.A.C. (4th) 129 (W.D. Hamilton)
* Re Canada Safeway Ltd. and United Food & Commercial Workers Union, Local 1518, 52 L.A.C. (4th) 295 (Hope)
* Re Dominion Tanners and United Food & Commercial Workers Union, Local 832, 56 L.A.C. (4th) 392 (Hamilton)
* Re Green Valley Fertilizer Ltd. and United Food & Commercial Workers Union, Local 1528, 22 L.A.C. (4th) 417 (Hope)
* Re Coca-Cola Bottling Ltd. and United Food & Commercial Workers International Union, 44 L.A.C. (4th) (Swan)
* Pilon v. International Minerals and Chemical Corporation (Canada) Ltd. et al. 31 O.R. (3d) 210 (Ont. Ct. of Appeal)
* St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219 [1986], 1 S.C.R. 704, 28 D.L.R. (4th) 1
* Weber v. Ontario Hydro [1995], 2 S.C.R. 929, 30 C.R.R. (2d) 1.

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