GSB# 2004-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Union Grievance)

Association

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell Barristers and Solicitors

FOR THE EMPLOYER

David Strang Acting Associate Director Ministry of Government Services

HEARING

July 8, December 15, 2004; January 4 & 5, April 12, May 5, September 23 and October 18, 2005.

Decision

This grievance was filed on March 2, 2004. The parties’ dispute concerns the interpretation of certain benefit provisions in the collective agreement. AMAPCEO took the position that the language of the collective agreement was clear and unambiguous. The employer asserted otherwise. Further to an interim ruling dated July 7, 2004 I heard evidence of the bargaining history and practice between the parties. There is actually little dispute between the parties as to the facts. They differ significantly however in their characterization of those facts and the impact of those differences on the proper interpretation of the collective agreement.

There are three issues. The first deals with the interpretation of the words “all prescription drugs” and the related language in Article 34.2(a) of the collective agreement. The second relates to the meaning of “diagnostic procedures” in Article 34.2(c). Both fall under the Supplementary Health and Hospital Insurance coverage in the collective agreement. The third issue centres on the definition for “dependent child” in the dental plan. Although the collective agreement references “dependent children” in Article 35 (Dental Plan) it does not contain a definition of the term. The parties agreed that a fourth issue dealing with subrogation of benefits would not be dealt with in these proceedings.

The relevant provisions of the collective agreement provide:

ARTICLE 31 – BENEFIT PLANS FOR FULL TIME EMPLOYEES

31. Benefits - General

31.1 "Benefit Plans" in Articles 31-36 means [sic] the Basic Life Insurance Plan, the Supplementary & Dependent Life Insurance Plan, the Supplementary Health and Hospital Insurance Plan, (including vision and hearing aid coverage), the Dental Plan, and the Long Term Income Protection Plan in force as of September 1, 1997 with the Great West Life Assurance Company or any successor Plan.

31.2 Subject to the provisions of this Agreement, the benefits contained in the Benefit Plans as they were constituted on September 1, 1997 shall be provided to full time employees on the same terms and conditions as were in place on September 1, 1997. These benefits and terms and conditions may only be altered by mutual agreement of the parties.

31.5 The benefits contained in the Benefit Plans are supplemented by the provisions of Articles 32-36. Where a conflict exists between the provisions of a Benefit Plan and this Agreement, the provisions of this Agreement shall prevail.

Article 34 -- Supplementary Health and Hospital Insurance

34.2 The Supplementary Health and Hospital Insurance Plan shall include reimbursing employees for the following:

(a) ninety percent (90%) of the cost of all prescription drugs that by law require a physician's prescription, including injectable drugs, and medicines prescribed by a licensed physician or other licensed health professional who is legally authorized to prescribe such drugs, and dispensed by a licensed pharmacist or by a physician legally authorized to dispense such drugs and medicine. For clarity, life-sustaining drugs shall continue to be covered on the same basis as under the previous collective agreement. Provided that a generic drug is listed in the Canadian Pharmaceutical Association Compendium of Pharmaceuticals and Specialties, reimbursement for drugs covered by the Plan will be based on the cost of the lowest priced generic version of the drug that the dispensing pharmacist can readily provide, unless the prescribing physician or health professional stipulates no substitution, in which case the reimbursement will be based on the cost of the drugs prescribed.

(c) one hundred percent (100%) of the cost of diagnostic procedures, and radiology;

THE BARGAINING HISTORY

This grievance was filed pursuant to the terms of the collective agreement in operation from April 1, 2001 to March 31, 2004. It was the second collective agreement between the parties. However the language relevant to this