CITATION: Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Government Services), 2015 ONSC 275
DIVISIONAL COURT FILE NO.: 53/14
DATE: 20150121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Spence, Sachs and Harvison Young JJ.
BETWEEN:
ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL CROWN EMPLOYEES OF ONTARIO
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD
Respondents
Steven Barrett, for the Applicant
Robert Fredericks and Omar Shahab, for the Respondent
HEARD at Toronto: January 7, 2015
H. Sachs J.:
Introduction
[1] The Applicant seeks judicial review of a decision of the Grievance Settlement Board (the “Board”), dated November 5, 2013. The question before the Board concerned the interpretation of the collective agreement of the parties and, more particularly, whether that agreement provided for 100% reimbursement of the amount paid for a report prepared by a private psychologist that diagnosed the grievor’s child with autism.
[2] In reaching its decision, the Board relied on a clause in a subsequent agreement entered into by the parties (the “Implementation Agreement”) that neither party had made any submissions about.
[3] The Applicant seeks to set aside the Board’s decision on two bases; first, that the Board breached the rules of procedural fairness when it based its decision on a clause that the Applicant would have no reason to anticipate was relevant to the proceedings and that the Applicant had no opportunity to address; and second, that the Board’s decision was unreasonable.
[4] For the reasons that follow, I find that the Board’s decision was unreasonable and should be quashed with a direction that the grievance be heard in front of a differently-constituted panel. In view of this finding, there is no need to rule on the procedural fairness issue.
Background
The Facts Giving Rise to the Grievance
[5] A pediatrician suspected that the grievor’s son might have attention deficit disorder and sensory integration disorder, which fall under the spectrum of autism disorders. Following a referral from the pediatrician, the boy attended five appointments with a child psychologist for the purposes of testing. The psychologist concluded that a diagnosis of autism spectrum disorder was appropriate and made various recommendations.
[6] The psychologist’s assessment cost $2000.00. The grievor made a claim under the supplementary health insurance provisions of the collective agreement and was reimbursed the sum of $800.00 by the insurer. The Applicant grieved, claiming that under Article 34.2(c) of the collective agreement, the grievor should have been reimbursed the full cost of the assessment.
Article 34.2 of the Collective Agreement
[7] The relevant portions of Article 34.2 of the collective agreement provide as follows:
34.2 The Supplementary Health and Hospital Insurance Plan shall include reimbursing employees for the following:
(c) one hundred percent (100%) of the cost of diagnostic procedures and radiology;
(f) the services of a psychologist, at the rate of forty dollars ($40) per half hour, to an annual maximum of fourteen hundred dollars ($1400). Coverage shall also include services rendered by a social worker with a Master’s Degree in Social Work, where such services are equivalent to the services that would be provided by a psychologist;
[8] In the case at bar, instead of being reimbursed the full amount of the claim pursuant to Article 34.2(c), the grievor was reimbursed at the rate of $40 per half-hour, for a total of $800 under Article 34.2(f).
The Implementation Agreement
[9] In 2005, the parties appeared before the Board on another grievance that also raised a number of issues concerning the interpretation of Article 34.2 of the collective agreement, including the meaning of the phrase “diagnostic procedures” in Article 34.2 (c). Although the import of the Board’s 2005 decision was arguably more general in application, the specific procedures that appear to have been the subject of the claim under Article 34.2 were eye examinations and audiological tests. The Board found that the claims at issue were caught by Article 34.2(c), because they were all procedures employed to assist in obtaining a diagnosis.
[10] Following the release of the Board’s 2005 decision, the parties entered into the Implementation Agreement titled, “Implementation of AMAPCEO Benefits Policy Dispute”. The Implementation Agreement arose after the parties had “met for the purposes of attempting to resolve implementation issues arising from the GSB award (GSB#2004-0050) dated November 15, 2005” (Implementation Agreement, Application Record, p. 57).
[11] The Implementation Agreement contained three clauses under the heading “Diagnostics”. They are:
- The following diagnostic procedures as recognized in the November 15, 2005 GSB decision (routine eye examinations, audiology tests, blood pressure monitoring and Bravo PH tests) will be paid provided that:
a) the procedure was ordered or performed by:
i) a licensed physician, or
ii) a licensed practitioner regulated under the Regulated Health Professionals Act,
iii) any paramedical practitioner listed in the collective agreement,
iv) a licensed health facility.
who is practicing within the scope of their profession or license.
b) the expense for the procedure was incurred on or after January 1, 2003 except in the case of claims for reimbursement for routine eye examinations, the procedure was performed or expense incurred on or after November 1, 2004;
c) the procedure is not covered by OHIP, however if any portion of the procedure is covered by OHIP, the uncovered portion is reimbursable to the extent legally permitted;
d) after the first routine eye examination which is reimbursable hereunder, at least 24 months must pass from the date the first expense was incurred before another claim is eligible for reimbursement for the eligible person (and for clarity, one claim per eligible person per 24 month period thereafter).
- The cost of routine eye examinations will be administered as part of the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan. However, the cost of routine eye examinations is:
a) not subject to any premium payment by employees and will not be included in any experience rating of vision care coverage;
b) is excluded from the cap on reimbursement for vision or hearing care under the plan;
c) available to all employees including those who decline the optional Vision and Hearing Aid coverage under the Supplementary Health and Hospitalization Plan.
For clarity, the parties acknowledge that routine eye examinations are a diagnostic procedure and that delivery of same under the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan is for administrative purposes only.
- In addition to the specified diagnostic procedures listed in paragraph 3, GWL will be instructed to pay for diagnostic procedures defined as follows: ‘procedures utilized in order to assist in obtaining a diagnosis.’
[12] During the hearing giving rise to this judicial review, the Applicant argued that clauses 3 and 5 of the Implementation Agreement were relevant to the issue that the Board had to decide. The Respondent submitted that the Implementation Agreement was irrelevant to the Board’s decision. In the alternative the Respondent argued, if the Board did find that the Implementation Agreement was relevant, the full amount of the psychological assessment in issue should not be reimbursed as the procedure was one that was covered by OHIP and, therefore, paragraph 3(c) of the Implementation Agreement applied.
The Board’s Decision
[13] The Board held that the psychological assessment at issue constituted both “diagnostic procedures” under Article 34.2(c) and “psychological services” under Article 34.2(f) of the collective agreement. The Board then went on to reject the parties various arguments about which of these two clauses should prevail and found, instead, that the clearest evidence of the parties’ intentions was the Implementation Agreement.
[14] The Board then relied on paragraph 4 of the Implementation Agreement (which neither party had suggested was relevant) to resolve the dispute before it and found as follows:
[39] In the Implementation Agreement, the parties did turn their minds to this issue of ambiguity between reimbursement for diagnostic procedures and the existence of a cap on reimbursement. Paragraph 4 b) of the Implementation Agreement expressly provides that the cost of routine eye examinations, found in the earlier award to be a diagnostic procedure, are to be ‘excluded from the cap on reimbursement for vision…care under the plan’. Article 34.2 (d) of the collective agreement provides for vision coverage (subject to a deductible) of ‘up to three hundred and forty dollars ($340.00) per person in any consecutive twenty-four month period’. In the Implementation Agreement, the parties expressly agree that the cost of routine eye examinations will be reimbursed at 100% notwithstanding the cap on vision coverage in the collective agreement, provided that the procedure otherwise meets the conditions set out in paragraph 3 of the Implementation Agreement.
[40] This exclusion from the cap on vision coverage appears to have been agreed to so that routine eye examinations could be administered as part of the Vision and Hearing Aid section of the Health and Hospitalization Plan. However, also in the Implementation Agreement, the parties negotiated paragraph 3, and specifically sub-paragraph 3 a), which requires that a diagnostic procedure be ordered or performed by, inter alia, a ‘licensed practitioner regulated under the Regulated Health Professionals Act’. That paragraph does not go on as the parties did in paragraph 4 of the Implementation Agreement to agree that the cost of a diagnostic procedure performed by a licensed practitioner regulated under the Regulated Health Professionals Act was excluded from any cap on reimbursement for the services of such a practitioner. By expressly excluding the application of a cap in one circumstance and, at the same time, not doing so in another, leads me to conclude that the parties intended that the cap would continue to apply in the latter circumstance.
[41] This, frankly, is the clearest evidence of the parties’ intention in circumstances where I have no evidence of bargaining history other than that recorded in the earlier award and where other rules of contract interpretation have provided little assistance. It reflects a reading of the collective agreement as a whole, including what the parties agree are conditions applicable to any claim for reimbursement of diagnostic procedures.
[42] Having regard to all of the above, I find that reimbursement of this claim for a diagnostic procedure under Article 34.2(c) of the collective agreement is limited by the cap on reimbursement for the services of a psychologist under Article 34.2(f) of the collective agreement. This grievance is therefore dismissed.
Standard of Review
[15] I accept that the interpretation of a collective agreement lies at the heart of the Board’s jurisdiction and, thus, the Board’s decision is reviewable on the standard of reasonableness. This standard demands that I assess the decision with a view to ascertaining whether it is intelligible, transparent, and justifiable and whether the result “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47). Further, “[t]he fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 17).
Analysis
[16] In order to assess the reasonableness of the Board’s decision, it is necessary to examine its reasoning process in more detail. After reaching the conclusion that the work at issue could properly be characterized as both “the provision of the services of a psychologist” within the meaning of Article 34.2(f) of the collective agreement and a “diagnostic procedure” within the meaning of Article 34.2(c) of the agreement, the Board then went on to consider which of these two provisions should apply when it came to the question of reimbursement.
[17] The Board first examined the argument advanced by both parties that one provision took precedence over the other based on “the interpretative rule that a specific provision overrides a general provision”, but found that it could not be said that one of the sub-paragraphs in question was more specific or general than the other (Board Decision, para. 34). Therefore, that interpretative rule was of no help.
[18] The Board then dealt with the Respondent’s argument before it that, in the absence of clear and unambiguous language, it could not be assumed that the employer intended to confer a monetary entitlement. It found that, in this case, the employer had clearly conferred two monetary entitlements and that the ambiguity only arose because the services in question fell within both the conferred entitlements.
[19] The Board then asked itself whether the two provisions could be read together in harmony. In this regard, the Respondent employer argued that if both provisions applied, diagnostic services would be fully reimbursed, but to a cap of $40 per half-hour and $1400 per year. The Board found that “[h]aving a lesser benefit override a better benefit may not be a good example of harmony.” The Applicant, on the other hand, submitted that Article 34.2(c) applied when the psychological services related to diagnostic procedures and that all other psychological services were covered under Article 34.2(f). The Board stated that this reading of the agreement was “arguably a more palatable example of harmony” (Board Decision, at para. 36).
[20] The Applicant also argued that the right to be fully reimbursed for diagnostic procedures was clear in the collective agreement and that it would take clear language to restrict that right. The Board dealt with this submission by noting that the collective agreement did contain clear language that would limit that right; namely, Article 32.4 (f), which “does not exclude ‘diagnostic procedures’ from its application. The only question is whether the parties intended that provision to apply in these circumstances” (Board Decision, para. 37).
[21] The Board then found that the terms of the Implementation Agreement modified the collective agreement and spoke to the parties’ intention. It was at this point that the Board turned to paragraph 4 of that agreement, a paragraph that neither party had adverted to in their submissions (although the whole agreement was filed as evidence by the Applicant). For ease of reference, I will reproduce that paragraph again:
- The cost of routine eye examinations will be administered as part of the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan. However, the cost of routine eye examinations is:
a) not subject to any premium payment by employees and will not be included in any experience rating of vision care coverage;
b) is excluded from the cap on reimbursement for vision or hearing care under the plan;
c) available to all employees including those who decline the optional Vision and Hearing Aid coverage under the Supplementary Health and Hospitalization Plan.
For clarity, the parties acknowledge that routine eye examinations are a diagnostic procedure and that delivery of same under the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan is for administrative purposes only.
[22] The Board reasoned that because paragraph 4(b) refers to excluding the cost of routine eye examinations (a diagnostic procedure) from the cap on reimbursement for vision or hearing care under the plan, this was clear evidence that the parties had addressed their minds to the issue of the “ambiguity between reimbursement for diagnostic procedures and the existence of a cap on reimbursement” (Board’s Decision, para. 39). Having expressly excluded that cap on reimbursement for routine eye examinations and not having done so with respect to other diagnostic procedures, the Board found that the parties must have intended that the other caps set out in the collective agreement were to apply to all other diagnostic procedures, including the psychological assessment at issue.
[23] The problem with this reasoning is that it fails to put the words in paragraph 4(b) of the Implementation Agreement in context and, in particular, fails to deal with the clear wording in that paragraph that it is directed to a matter that purely relates to how routine eye examinations are to be administered under the plan and that the paragraph has no other purpose. This is clear from the first part of paragraph 4, which states that “[t]he cost of routine eye examinations will be administered as part of the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan” and the last part of paragraph 4 that reads “For clarity, the parties acknowledge that routine eye examinations are a diagnostic procedure and that delivery of same under the Vision and Hearing Aid section of the Supplementary Health and Hospitalization Plan is for administrative purposes only” (emphasis added).
[24] Taken in context, it is apparent that paragraph 4 has nothing to do with any other diagnostic procedures. It is only directed at routine eye examinations (which was one of the specific services in dispute in the arbitration giving rise to the Implementation Agreement) because as a matter of administration only, the parties had agreed that those examinations, in spite of the fact that they were diagnostic procedures, could be administered as part of the Vision and Hearing Aid section of the supplementary health care plan.
[25] Having made this agreement, the parties then had to clarify three things. First, that since employees pay extra premiums for vision care coverage, the cost of those premiums would not go up because routine eye examinations were being administered as part of vision care coverage (see paragraph 4(a) of the Implementation Agreement). Second, that since the employees who pay premiums for vision care coverage have a cap on what they can be reimbursed for, that cap would not be affected by the fact that routine eye examinations would now be administered as part of vision care coverage (see paragraph 4(b) of the Implementation Agreement). Third, the parties needed to make it clear that routine eye examinations were available to all employees, not just the ones who paid extra coverage for vision care. In other words, routine eye examinations were still diagnostic procedures that were fully recoverable under the collective agreement for all employees in spite of the fact that, for administrative purposes only, these examinations were being administered as part of the optional vision care plan (see paragraph 4(c) of the Implementation Agreement).
[26] Given the wording and clear intent of paragraph 4 of the Implementation Agreement, it cannot be used as an aid to interpreting the question that the Board had to decide. Presumably, that is why neither party adverted to it in their submissions as it had no relevance to the issue at hand, which had nothing to do with routine eye examinations.
[27] Unfortunately, the Board’s decision turns on its application of paragraph 4, an interpretation that is unreasonable given the actual language of the paragraph. It is not clear what the Board would have done if it had not made this error. If anything, up to the point of the error in question, it would appear that the Board was favouring the interpretation of the Applicant as “arguably” being the one that produced a more harmonious reading of the collective agreement.
Conclusion
[28] For these reasons, we are ordering that the Board’s decision be quashed and that the matter be sent back to a different panel of the Board to be determined in accordance with these reasons.
[29] Pursuant to the agreement of the parties, we order the Respondent to pay the Applicant its costs of this application, fixed in the amount of $6000.00, all inclusive.
SPENCE J.
H. SACHS J.
HARVISON YOUNG J.
Released: 201501
CITATION: Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Government Services), 2015 ONSC 275
DIVISIONAL COURT FILE NO.: 53/14
DATE: 20150121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Spence, Sachs and Harvison Young JJ.
BETWEEN:
ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL CROWN EMPLOYEES OF ONTARIO
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD
Respondents
REASONS FOR JUDGMENT
H. SACHS J.
Released: 20150121