GSB#2010-1155
UNION#2010-0154-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Flannery)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
BEFORE
Michael V. Watters
Vice-Chair
FOR THE UNION
Mihad Fahmy Peggy Smith Barristers and Solicitors
Counsel
FOR THE EMPLOYER
Caroline Cohen
Ministry of Government Services
Senior Counsel
HEARING
June 20, 2011.
DECISION
[ 1 ] At the outset of the hearing, the parties provided the following Agreed Statement of Facts:
The Grievor, Robert Flannery, is a Caseworker for the Ontario Disability Support Program, Southwest Region (Windsor Office), Operations Division, Ministry of Community and Social Services. He was hired into this role on May 1, 1989. The Grievor is 55 years old (and is eligible for pension at age 65).
The Grievor suffered a WSIB-approved workplace injury on December 3, 1990. The Grievor reported a reoccurrence to his original claim on June 9, 2005 and incurred intermittent lost time related to his injury from June 9, 2005, through September 10, 2009.
The Grievor’s claim is governed by the “pre-1998” workers compensation legislation.
In September 1991, the Grievor underwent surgery as a result of his workplace injury. After resuming regular work in late 1991, the Grievor continued to perform regular work through 1992, 1993 and 1994. Through this period, there was lost time directly attributed to the workplace injury and surgery.
The grievor was given a zero future economic loss (FEL) award on December 18, 1994, in relation to his absence in 1991, attributed to his injury and surgery.
The Grievor submitted a medical note dated September 10, 2009 which stated that he “can no longer work due to chronic, severe pain in his cervical spine. He will remain off work until his assessment with the neurosurgeon Dr. Maurisutti on January 12, 2010. We will re-evaluate his status following this appointment.”
The grievor remained off work from September 11, 2009 to January 17, 2010. He received full pay without use of vacation credits pursuant to article 41.2 until October 27, 2009. Thereafter, pursuant to article 41.3, he accessed his vacation credits to top up the amount he was receiving from WSIB, until his return to work on January 18, 2010.
The Grievor returned to work on January 18, 2010 with restrictions and limitations approved by the WSIB that the program area was able to accommodate, including working 4 consecutive days per week only indefinitely. The Grievor worked 4 hours per day for the first two weeks and six hours per day for the next two weeks, before returning to a full eight hour day. In accordance with these restrictions, the Grievor did not work on the following Fridays: January 22, 29, February 5, 12, 19 and 26. He used vacation credits for these days.
The employer has appealed the WSIB’s decision accepting the limitation that the grievor only work 4 consecutive days per week. The WSIB has not issued a decision on the appeal.
By letter dated December 18, 2010 (should read December 18, 2009) (letter attached) the WSIB advised the Grievor that “for all claims when the accident date is prior to January 1998 and a Non Economic Loss (NEL) Award is in order, a Future Economic Loss (FEL) award is then considered by the Board. This strictly relates to changes in earnings capacity as a result of the work injury.” His FEL benefit was approved by WSIB and is 90% of the difference between his pre-accident net average earnings (increased by the cost of living) and his projected net average earnings. The employee’s projected pre-accident net earnings are $592.66/week (as of December 16, 2009) and the employee’s projected net average earnings are $592.66/week. The FEL benefit is 90% of the difference less indexing requirements. Therefore, although the WSIB acknowledged that the employee experienced impairment due to his injury, there is no wage loss and the employee cannot be paid for hours missed.
On January 21, 2010 the Grievor advised his manager that the WSIB adjudicator confirmed the information in the December 18, 2010 letter (should read December 18, 2009) and no supplemental benefits would be paid for lost wages. The Grievor also advised his manager that the WSIB adjudicator had advised him that the calculation is not a decision and therefore could not be appealed.
On January 21, 2010 and February 3, 2010 the grievor’s manager verbally advised him that he should explore his WSIB appeal options and provided several contact names including the WSIB Specialist at OPSEU Corporate, Allen Jones.
The employer notified the grievor verbally on January 18th, 2010 and in writing on February 16, 2010 (letter attached) that in accordance with Article 41.5 of the Collective Agreement, he would not be compensated for his inability to work the 5th day of every week.
On February 26, 2010 the Grievor’s physician cleared him to return to work full time hours until the issue of payment for the 5th day could be resolved (letter attached).
Also by letter dated February 16, 2010 (letter attached), the WSIB advised the grievor that where his current earnings, working four days per week, do not result in a wage loss, he will not receive benefits.
The employee originally filed three grievances in relation to the issues above. One of the grievances, filed February 19, 2010, was resolved following Stage Two. There are two grievances proceeding to the Grievance Settlement Board.
Other than the issue of payment for his 5th shift, which is the subject of Grievance #1 dated February 17, 2010, there were no issues regarding his return to work in January 2010. In particular, it is agreed that employer could not have accommodated Mr. Flannery to enable him to work the 5th day.
In grievance #1: the Grievor alleges that he should be compensated by the Employer for his inability to work every 5th workday. The Grievor alleges that he is entitled to use STS credits on these days. The Employer’s position is that Article 41.5 of the OPSEU Collective Agreement prohibits the payment of STSP in these circumstances.
[ 2 ] The relevant provisions of the collective agreement read:
ARTICLE 41 – WORKPLACE SAFETY AND INSURANCE
41.1 Where an employee is absent by reason of an injury or an occupational disease for which a claim is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made, any payments made under the foregoing provisions in excess of that to which he or she is entitled under Articles 44.1 and 44.6 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer.
41.2 Where an employee is absent by reason of an injury or an occupational disease for which an award is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or occupational disease, and any absence in respect of the injury or occupational disease shall not be charged against his or her credits.
41.3 Where an award is made under the Workplace Safety and Insurance Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in Article 41.2 and the employee has accumulated credits, his or her regular salary may be paid and the difference between the regular salary paid after the period set out in Article 41.2 and the compensation awarded shall be converted to its equivalent time and deducted from his or her accumulated credits.
41.4 Where an employee receives an award under the Workplace Safety and Insurance Act, and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and the Dental Plans for the period during which the employee is receiving the award. The Employer shall continue to make the Employer’s pension contributions unless the employee gives the Employer a written notice that the employee does not intend to pay the employee’s pension contributions.
41.5 Where an employee is absent by reason of an injury or an occupational disease for which an award is made under the Workplace Safety and Insurance Act, the employee shall not be entitled to a leave of absence with pay under Article 44 (Short Term Sickness Plan) as an option following the expiry of the application of Article 41.2.
ARTICLE 44 – SHORT TERM SICKNESS PLAN
44.1 An employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows:
(a) with regular salary for the first six (6) working days of absence,
(b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year.
44.2 An employee is not entitled to leave of absence with pay under Article 44.1 until he or she has completed twenty (20) consecutive working days of employment.
44.3 Where an employee is on a sick leave of absence which commences in one (1) calendar year and continues into the following calendar year, he or she is not entitled to leave of absence with pay under Article 44.1 for more than one hundred and thirty (130) working days in the two (2) years until he or she has returned to work for twenty (20) consecutive working days.
44.4 An employee who has used leave of absence with pay for one hundred and thirty (130) working days in a calendar year under Article 44.1 must complete twenty (20) consecutive working days before he or she is entitled to further leave under Article 44.1 in the next calendar year.
[ 3 ] The initial day of hearing in this matter was on April 6, 2011. The issue between the parties, as then stated, was whether the grievor is entitled to use the Short Term Sickness Plan (STSP), and be compensated thereunder, in respect of his inability to work every fifth (5th) workday. The parties asked that I first determine whether article 41.5 of the collective agreement precludes such entitlement and to defer until the next hearing date any consideration as to the applicability of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.
[ 4 ] By way of a Decision dated April 21, 2011, I determined that the grievor’s circumstances, as set out in the Agreed Statement of Facts provided, fell squarely within article 41.5 and that, as a consequence, he is not entitled to resort to the STSP under article 44. In this subsequent proceeding, I must determine whether the Employer’s application of article 41.5 in respect of the grievor offends the provisions of the Human Rights Code.
[ 5 ] The relevant provisions of the Human Rights Code read:
(1) Employment.– Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(1) Definitions. – In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, a physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
“equal” means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; ………………………………………………………………
- (1) Constructive discrimination. – A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) Idem. – The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
[ 6 ] The non-discrimination provision in the collective agreement reads as follows:
3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).
[ 7 ] Counsel for the Union referenced the following facts pertaining to the grievor’s situation: the grievor suffered a work-related injury which has had long standing effects; as a consequence of the aforementioned injury, he is subject to medical restrictions permitting him to work only four (4) days each week; the parties agree that this represents a permanent accommodation; under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sch.A, as amended, the grievor is not eligible to be paid lost wages in respect of the fifth (5th) day he is unable to work; and the Employer, pursuant to article 41.5 of the collective agreement, will not permit the grievor to use the STSP in respect of these regular absences due to the fact he is an employee with a work-related injury. From the perspective of the Union, the Employer’s refusal to allow the grievor access to the STSP constitutes discrimination on the grounds of disability under both the Human Rights Code and the collective agreement. In this regard, counsel emphasized that the grievor has a work-related disability, but is denied access to the STSP. In contrast, other employees who have non-workplace injuries can resort to such plan if they require an accommodation. On counsel’s analysis, this amounts to differential treatment based on the type of disability.
[ 8 ] The Union relies on the following authorities in support of its position: Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566; Hotel Employees, Restaurant Employees Union, Local 75 v. Ontario Jockey Club (Szelba Grievance) (2000), 2000 CanLII 50231 (ON LA), 91 L.A.C. (4th) 146 (Adams), as upheld by the Ontario Superior Court of Justice, Divisional Court at [2001] O.J. No. 4319; and Ottawa Hospital v. Ontario Public Service Employees Union, Local 464 (Disability Grievance), [2008] O.L.A.A. No. 266 (Keller), as upheld by the Ontario Superior Court of Justice, Divisional Court at 2009 CanLII 9389 (ON SCDC), [2009] O.J. No. 809.
[ 9 ] In Gibbs, employees rendered physically unable to work were provided with income replacement pursuant to an insurance policy for as long as they were incapable of returning to their jobs. Benefits could be claimed up until age sixty-five (65). If, however, the cause of an employee’s inability to work was a mental illness or mental disability, the income replacement benefits would terminate after two (2) years, unless the employee remained in a mental institution. The issue before the Supreme Court of Canada was whether the insurance scheme’s differentiation between mentally disabled employees and physically disabled employees amounted to discrimination under the Saskatchewan Human Rights Code.
[ 10 ] Sopinka J., in the course of reaching his conclusion that the insurance plan was discriminatory, commented as follows:
“32 ………., in my opinion it was appropriate, in the circumstances, to compare the benefits received by the mentally disabled with those received by the physically disabled. The present case involves an allegation of an inadequate benefit. In order to assess the adequacy of the benefit, there must be a comparison between the benefits paid to the person with a mental disability and some other group. Clearly, if the comparator group is all persons without a disability, then a claim of discrimination on the basis of inadequate disability insurance benefits would seldom be successful. Such a result appears contrary to the underlying purpose of human rights legislation, ……………
33 ……….The first step is to determine, in all the circumstances of the case, the purpose of the disability plan. Comparing the benefits allocated to employees pursuant to different purposes is not helpful in determining discrimination-it is understandable that insurance benefits designed for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as the result of characteristics that are not relevant to this purpose, discrimination may well exist.
34 In the case at bar, it is apparent that the plan was designed to insure employees against the income-related consequences of becoming disabled and unable to work. The wording of the plan, for example, clause 10.1 of the policy, which is entitled ‘Employee Disability Benefit’, indicates that its purpose is to insure against disability generally. Furthermore, and more importantly, the insurance plan in substance, by providing benefits for a broad range of disabilities, provides income replacement for employees in the event of disability. Consequently, in determining whether clause 10.6, which limits the benefits extended to mentally disabled employees, discriminates against the mentally disabled, it is appropriate to compare their income replacement benefits with those receiving disability benefits generally,……………………….………
The mental disability and the physical disability insurance were designed for the same purpose: to insure against the income-related consequences of being unable to work because of disability. However, the benefits are limited if an employee has a mental disability. Clause 10.6 discontinues the benefits to the mentally disabled after two years unless they are institutionalized, yet there is no such restriction on the benefits available to the physically disabled. Consequently, the insurance plan provided by the appellant employer in the present case discriminates on the basis of mental disability and thus contravenes s.16 of the Saskatchewan Human Rights Code: a benefit is limited ‘because of’ disability.”
[ 11 ] Counsel for the Union submitted that the underlying purpose of the STSP is to protect an employee’s income if they become sick or ill and are unable to work. She asserted that the Plan is directed at all employees who find themselves in this situation. Counsel further argued that, in this instance, the treatment of the grievor should be compared with that accorded to employees with disabilities who have general access to the STSP. She emphasized that the grievor’s colleagues who have non-work-related disabilities have access to the STSP, while the grievor, with a work-related disability, does not. It was her submission that limiting the allowance on the basis of the origin of the disability is discriminatory under the Human Rights Code and inconsistent with the approach taken in Gibbs.
[ 12 ] In Ontario Jockey Club, the short and long term disability plans provided coverage for identifiable incident injuries but excluded coverage for gradual onset injuries. The grievor was denied benefits under both plans on the basis that her injury or disability did not arise from an identifiable incident that occurred out of and in the course of employment. On the evidence, the grievor’s injury, which rendered her unemployable for any occupation, was caused by progressive wear and arose gradually over the period during which she worked as a waitress for the Employer.
[ 13 ] Arbitrator G.W. Adams, who chaired the Board of Arbitration in Ontario Jockey Club, found that the purpose of the plans was to indemnify employees against occupational injuries and that, in determining the existence of discrimination, the comparison to be made was between employees who had suffered identifiable-incident occupational injuries and those who had experienced gradual-onset occupational injuries. On his analysis, after making such comparison, there was obviously discrimination in respect of employment. The question remaining was whether there was discrimination on a prohibited ground, namely, because of handicap.
[ 14 ] Arbitrator Adams rejected the reasoning of Arbitrator R. Ellis, in an earlier decision involving these same parties, to the effect that the plans were not discriminatory as they did not discriminate on the basis of handicap but only on the basis of the nature of the event or events that caused the injury. In this regard, Arbitrator Adams stated:
“94 Respectfully, we do not share Arbitrator Ellis’ analysis. In our view, it fails to give a large and liberal interpretation to the Ontario Human Rights Code……..……………………..…
……………….It is our view that the Code does not intend a ‘technical’ distinction between a handicap and bodily injury that caused the handicap or the nature of the events that caused the injury. Indeed, the latter are related terms and underlying events that give rise to handicaps. The Code is not (to) be pursed as a tax law might but is to be given a purposive and liberal interpretation. Employees who are injured gradually experience the same debilitating consequences as employees injured by identifiable incidents and they have the same income replacement needs. Indeed, employees who fall victim of gradual onset injuries may experience more serious injuries because the build-up of the injury or disease is silent until it strikes. By this time rehabilitation may be very lengthy and difficult or not possible at all. Moreover, because the absence of an obvious cause and effect, these employees may not be believed and may be suspected of malingering.
95 …………………………………………………………….
……………………., once an Employer decides to provide an employee benefit package, exclusions from such schemes may not be made in a discriminatory fashion. Discrimination between disablement on the basis of the events giving rise to them (i.e. identifiable incident vs. gradual onset) is no different than discriminating on the basis of pregnancy. All employees disabled by gradual onset injuries are disabled or handicapped in the same way as Chief Justice Dickson observed that all who become pregnant are women.”
The observation of Chief Justice Dickson noted in the above excerpt was made in Brooks v. Canada Safeway Ltd. (1989), 1989 CanLII 96 (SCC), 59 D.L.R. (4th) 321 (S.C.C.) in which the Supreme Court of Canada found that distinctions based on pregnancy were, in substance, “distinctions based on sex or, at least, strongly sex-related”.
[ 15 ] A majority of the Board of Arbitration chaired by Arbitrator Adams found that the plans discriminated against the grievor on the basis of her handicap contrary to both the Human Rights Code and the collective agreement. The identifiable incident restriction provided by the plans was struck down as void. Arbitrator Adams’ approach to this issue was subsequently upheld by the Ontario Superior Court of Justice, Divisional Court, on an application for judicial review.
[ 16 ] Counsel for the Union submitted that the distinction in the instant case between work-related injuries and non-work-related injuries and illnesses is similarly discriminatory, as it provides for differential treatment based on the nature of the handicap or the events giving rise to it. Counsel noted that the grievor, who suffers from a work-related injury, has the same income replacement needs as other employees unable to work due to non-work-related reasons and, consequently should be entitled to access the STSP to the same extent.
[ 17 ] In Ottawa Hospital, the Union alleged that the applicable Disability Income Plan provided for discriminatory treatment with respect to short term disability in two (2) respects. The first issue raised by the Union related to the initial fifteen (15) weeks of entitlement under the plan. If an employee did not work at all for the entire fifteen (15) weeks, they received income replacement coverage for that entire period. If they returned to work within the aforementioned period but suffered a recurrence over the next three (3) weeks, the “initial regime” would again apply. In both instances, the employee could potentially receive one hundred percent (100%) of earnings for up to fifteen (15) weeks. If, however, the employee was able to work part-time within this period, their entitlement monetarily would be less than that of an employee who had not been able to work at all. Simply stated, the former employee would receive a lesser amount reflecting the number of paid hours they were able to work. The Union in Ottawa Hospital argued that such treatment was discriminatory and that both groups of disabled employees were entitled to the same 562.5 hours of income replacement, even if this resulted in income replacement extending beyond fifteen (15) weeks. The second issue raised by the Union related to the ability of employees, who were able to return to work on a part-time basis, to access the re-qualification provision in the plan. The Union argued that, under the language of the plan, an employee who was able to work part-time during a period of disability would never meet the eligibility criteria in the case of a recurrence. The Employer there agreed that this was a possible result.
[ 18 ] Arbitrator M. B. Keller found against the Union on the first issue. The pertinent part of his award reads:
“16 ……………………………………………………….……
On its face, what the plan provides is income protection for a finite period of 15 weeks. The plan is designed to ensure that, for up to 15 weeks, a disabled employee is not financially penalized for their inability to work full time. The aim of the plan is to ensure that such employees continue to receive the income they would have received had they not been disabled. The plan is, thus, designed to ensure that disabled employees, whether they are totally incapable of working or whether they are capable of working part-time, continue to receive their full income as if they were not disabled. It is, simply, the guarantee of regular, full income for a period of up to 15 weeks. It is not, as suggested by the union, the guarantee of a pot of money that can be drawn down over an infinite period until the pot of money is exhausted.
17 Whether an employee who is disabled works 10 hours, 20 hours or no hours at all during the 15 weeks, the end result for each of these employees is precisely the same. Each employee will continue to receive their regular income as if they were not disabled. There is no discriminatory treatment because the result for all employees is exactly the same: each disabled employee continues to receive their regular income. Thus, although there can be a difference in the amount of money ultimately received by disabled employees from the plan, there is no difference between them as to their income for the period of disability: each will benefit precisely the same by continuing to receive their full income for the period of disability. In my view, in analyzing the plan and in considering the jurisprudence cited above, I cannot conclude that any of the principles have been infringed. The two groups of employees [those not able to work at all and those able to work part time] end up in precisely the same position. Therefore the plan is not discriminatory and this part of the grievance cannot succeed.”
[ 19 ] Arbitrator Keller came to an opposite conclusion on the second issue. He stated as follows:
“19 In the instant case, employees who are not able to work at all continue to have access to the disability scheme as described in the brochure as quoted above. The employer has acknowledged that disabled employees who work part-time during the period of disability may not have access to the recurrence provision of the disability scheme. The result, in my view, is to create a distinction between the two classes of disabled employees as was done to the two classes of disabled employees in the Battlefords case. As a result, I find, as the Court did in the Battlefords case, that the recurrence provision of the plan results in discriminatory treatment between disabled employees who are not capable of working at all and those who are able to work part-time.
20 ………………………………………………………….
To the extent that the plan exists as one of the means of accommodating disabled employees it must do so, in my view, equally to both classes of disabled employees.”
[ 20 ] The Employer in Ottawa Hospital applied for judicial review in respect of Arbitrator Keller’s determination on the second issue referenced above. The application proved unsuccessful. The reasoning of the Ontario Superior Court of Justice, Divisional Court, is captured in the following excerpt from the decision:
“14 For example, a full-time worker who experiences a disability (such as chronic fatigue) that reduces capacity to 90% of regular hours but does not preclude all work cannot meet the requirement of “three regular work weeks”. Workers in this position will run out of benefits after 15 weeks, and no matter how many hours they work or how long, they will never re-qualify for short-term benefits even if they subsequently suffer from an unrelated short term disability (such as a broken leg) and cannot work for several weeks. In contrast, employees whose disability allows them to return to work full-time can, after only 3 weeks, re-qualify for full short term disability benefits. This results in a sub-set of employees with ongoing disabilities being treated adversely when compared to other employees with respect to access to an important aspect of the disability scheme. The reason for the distinction is their disability, which prevents them from meeting the criterion of three weeks full-time work.
15 The purpose of the re-qualification provision is (to) allow a worker who has accessed the short term disability benefits previously, and has returned to work, to take advantage of the short term disability benefits again in the event of a new short term disability. The denial of any opportunity to re-qualify for those who return part-time and who experience another illness such as the one described above is inconsistent with the purpose of the plan.
16 We are therefore satisfied that the arbitrator’s decision that the re-qualification provision discriminates against those who are suffering partial disabilities is reasonable and is consistent with the Battlefords and District Co-operative decision. While his reasons may be unclear, we are satisfied the result is reasonable. This provision discriminates against a worker with a partial disability, at least to the following extent: a worker who has returned to work part-time after using the short-term disability provision and who works continuously but at a reduced level is unable to access a further period of short-term disability, if he or she subsequently suffers from another short-term disability.”
[ 21 ] Counsel for the Union noted that, with respect to the first issue in Ottawa Hospital, both sets of employees ended up receiving full income. She stressed that, in this instance, the grievor does not receive income protection for the Friday absences, contrary to the purpose of the STSP, and that he does not, unlike the situation in Ottawa Hospital, end up in the same position as other comparable employees off on that day due to non-work-related sickness or injury.
[ 22 ] Counsel for the Union argued that the underlying purpose of the STSP is to provide income protection for employees who are unable to work due to ill-health or injury. She asserted that this purpose must be defined broadly and in a manner consistent with human rights principles and the Human Rights Code. From her perspective, the purpose of the STSP is not fulfilled for the grievor, in contrast to other employees who receive the benefit for absences resulting from non-workplace injury or illness. Counsel submitted that the Employer’s administration of article 41.5 of the collective agreement treats the grievor less favourably than other employees and constitutes discrimination under both the Human Rights Code and the collective agreement based on disability. I was asked to so find, to remit the matter back to the parties to determine an appropriate course of action, and to remain seized.
[ 23 ] In response, counsel for the Employer submitted that the authorities relied on by the Union are all distinguishable in that they reference discrepancies or differences within a single plan of insurance, whereas the instant case involves two (2) distinct schemes having different purposes, namely, the statutory scheme provided for under the Workplace Safety and Insurance Act, 1997, as amended (WSIA) and the STSP provided by the Employer under the collective agreement. Counsel advised she was unable to locate a single case that concludes that a discrepancy between these two (2) separate schemes is discriminatory. Put another way, the authorities, in her submission, do not support the argument that an employer’s failure to make up for a shortfall under the statutory regime amounts to discriminatory treatment under the Human Rights Code.
[ 24 ] Counsel for the Employer noted that the grievor receives pay from the Employer for the four (4) days he works each week. Compensation for the fifth day is provided in accordance with the WSIA. Counsel emphasized that the shortfall here, in respect to the Friday absences, results from calculations made under the legislation and not from anything done by the Employer or within its control. It was her assessment that the grievor is limited to the negotiated improvements to the statutory scheme, as set out in articles 41.1, 41.2, 41.3 and 41.4 of the collective agreement, and that the Employer can properly rely on article 41.5 in support of its decision not to provide STSP benefits for the fifth day. Counsel maintained that it is not discriminatory to disallow an employee to access two (2) separate schemes for the same illness.
[ 25 ] Counsel observed that employees under the STSP receive seventy-five percent (75%) of regular salary after the first six (6) working days of absence, and that individuals in receipt of WSIA benefits get eighty-five percent (85%) of pre-accident earnings. She submitted that the Human Rights Code does not mandate that employees under different regimes must be accorded exactly the same benefits. From her perspective, it is not discriminatory to provide for differential treatment of employees covered by two (2) distinct schemes. On this point, counsel further noted that the Union has never claimed it is discriminatory for persons on either the STSP or on WSIA benefits to receive less than the full salary they would receive if working.
[ 26 ] Counsel for the Employer argued that the reasoning in Gibbs is inapplicable to the present dispute as the Union, here, is comparing the treatment received under two (2) separate schemes which have different purposes and objectives. On her analysis, unlike the situation in Gibbs, this case does not involve a comparison of a single scheme under which different types of disabilities are subject to differential treatment.
[ 27 ] It is the further position of the Employer that the issue raised in this case does not involve access to the workplace or the duty to accommodate. In this regard, counsel referenced paragraph 17 of the Agreed Statement of Facts which records the parties’ agreement that the Employer could not have accommodated the grievor to enable him to work the fifth (5th) day. On her analysis, this dispute relates to compensation and arises from the fact the grievor is on an unpaid leave of absence on Fridays. Counsel submitted, based on the applicable authorities, that differential treatment with respect to compensation, which is premised on work, is not discriminatory under the Human Rights Code.
[ 28 ] Lastly, counsel argued that the Employer could reduce the grievor to part-time status, with a consequent reduction in benefits, due to his inability to work full-time hours without violating the Human Rights Code. She noted that if this was done, the grievor would not receive pay for the fifth (5th) day. Counsel submitted that it cannot be a violation to maintain the grievor as full-time, with access to all of the full-time benefits, even though he is not working full-time hours. She observed that the only difference in this instance is that he cannot resort to the STSP for the day covered by the WSIA scheme.
[ 29 ] The Employer relies on the following authorities in support of its position: Toronto Real Estate Board v. Communications, Energy and Paperworkers Union of Canada, Local 87-M (Southern Ontario Newspaper Guild) (Sickness Benefits Grievance) (1998), 1998 CanLII 29976 (ON LA), 76 L.A.C. (4th) 90 (Albertyn); Messier-Dowty Inc. and International Association of Machinists and Aerospace Workers, Local 905 (Kingston Grievance) (1999), 1999 CanLII 35842 (ON LA), 80 L.A.C. (4th) 87 (Knopf); British Columbia v. British Columbia Government and Service Employees’ Union (Sheshka Grievance) (2002), 2002 CanLII 78968 (BC LA), 109 L.A.C. (4th) 1 (Lanyon); Domtar Inc. and Communications, Energy and Paperworkers Union of Canada, Local 31-X (Minor) (2004), 2004 CanLII 94817 (ON LA), 130 L.A.C. (4th) 150 (Kirkwood), overturned by the Ontario Superior Court of Justice, Divisional Court at (2005), 2005 CanLII 41378 (ON SCDC), 145 L.A.C. (4th) 129; Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital et al. (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 (Ont. C.A.); Ontario Public Service Employees Union (McNally) and The Crown in Right of Ontario (Ministry of Transportation), GSB No. 2000-0306, 2000-1542, October 16, 2003 (Brown); Ontario Public Service Employees Union (Donoghue) and The Crown in Right of Ontario (Ministry of Transportation), GSB No. 0725/95, December 3, 2002 (Brown); Ontario Public Service Employees Union (Eveleigh) and The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB No. 2008-2134, March 11, 2009 (Gray); Ontario Public Service Employees Union (Union Grievance et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2003-0167 et al., January 4, 2007 (Abramsky); Ontario Liquor Board Employees Union (Pound) and The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB No. 3278/92, February 8, 1996 (Briggs); Providence Care v. Ontario Public Service Employees Union, Local 431 (Thomas Grievance), [2008] O.L.A.A. No. 198 (Nairn).
[ 30 ] In Toronto Real Estate Board, the parties negotiated a collective agreement which provided for two (2) separate schemes for dealing with sickness absence from work. A short term disability program, described in article 18 of the collective agreement, dealt with sickness absences other than those arising from the workplace. Article 19 incorporated the Workers’ Compensation scheme with some slight modification. The material differences in the illness benefits under the two (2) articles were described as follows:
“7 There are various differences in the illness benefits under Articles 18 and 19. Under Article 18, a worker who is absent from work for reason of illness or injury unrelated to work will receive 100% of wages due for the first week of absence (subject to the limit in Article 17). Then from week 2 until week 16 (for the next 15 weeks) he or she will receive 2/3rds or 100% of salary as sick leave benefits.
8 If the sickness absence is work related, then, under Article 19, the worker will receive only an advance of 85% of 2 weeks’ salary, nothing more.
The Union, in short, objected to the absence of interim sickness benefits for employees pursuing Workers’ Compensation benefits, pending receipt of the compensation benefits. From its perspective, the difference in treatment was based on grounds of handicap. More specifically, the Union argued that such differential treatment was discriminatory under the Human Rights Code, as two (2) categories of disabled workers were treated differently, one less favourably than the other. It advanced the position that employees disabled by injury or illness at work should be compared, for purposes of the advance in question, to those disabled by injury or illness at home. The Union further argued that the purposes of articles 18 and 19 were, in essence, the same, as they were intended to compensate for illness or injury during the period an employee was off work. The fact that the cause of the illness or injury was work-related, or not, was only a secondary consideration.
[ 31 ] The Union’s position was rejected by a majority of the Board of Arbitration in Toronto Real Estate Board. The pertinent excerpts from the award read:
“24 The facts in this case are different. Here we do not have a situation in which employees are treated adversely in comparison to other employees purely because of their being on work-related sickness absence. We have schemes which are designed to meet two distinct contingencies: illness or injury arising in circumstances in which there is no statutory protection; and illness or injury when there is. The difference in the provision of benefits addresses what is in reality a distinction that is created by the statutory framework in which Workers’ Compensation is payable for work-based sickness absence and no statutory compensation is payable for non-work-based sickness absence.
26 Following the approach in Gibbs v. Battlefords and Distinct Co-operative Limited we ask the question, what is the purpose of the disability plan? We find that there are, in fact, two plans: a plan to deal with the statutory scheme provided under the Workplace Safety and Insurance Act (Article 19) and a separate plan to deal with disability which is not covered by the statutory scheme (Article 18). To use the language of Gibbs v. Battlefords and District Co-operative Limited, the benefits are allocated pursuant to different purposes: the purpose of Article 19 is to provide an advance to employees in respect of benefits which are determined outside of the Employer’s control in a statutory scheme applicable to all employers in Ontario; the purpose of Article 18 is to provide benefits for sickness absence for reasons unrelated to the workplace.
27 For there to be discrimination and a violation of the Human Rights Code, there must be differences within a scheme in which benefits are allocated for the same purpose, yet those benefits differ as the result of characteristics that are not relevant to the purpose. That is not the case here, as it was in Gibbs v. Battlefords and District Co-operative Limited. Here, the schemes are designed for quite different purposes. The difference in benefits under Articles 18 and is not occasioned as a result of characteristics which are not relevant to the purpose-the differences in benefits are relevant to different purposes………………………………..
28 In our view the Union’s argument (that an employer is not obliged to provide a sickness benefit scheme, but if it does, then it must apply the scheme equally as between those whose sickness absence is occasioned by a work-related cause and those whose sickness absence is not) is not sustainable. If that argument were upheld then an employer who provides no benefits whatsoever to its employees who are on sickness absence for reasons unrelated to their work, will be in a better position than those employers who are willing to grant such benefits on different terms from those provided under the Workplace Safety and Insurance Act. The employer who provides no benefits will be able to avoid any charge of discriminatory treatment by providing no benefits, but the employer who provides different benefits from those covered by the Workers’ Compensation statute will be acting in a discriminatory manner. That cannot be the proper result. The benefits provided by the different schemes are legitimately severable. They arise in different circumstances and they can be properly treated as being different benefits…………………………………………….....……..
29 The distinction between sickness absence on account of work-related illness or injury and sickness absence for another reason is not a distinction between different types of disability, as contended by the Union. It is a distinction between the circumstances in which disabilities may arise. Work-related illness or injury is compensable under a statute which determines the nature of the benefits payable, while non-work-related illness and injury is not compensable other than by agreement between the parties. That distinction in the source of the differential benefits is sufficient, in our view, to entitle the parties to draw the distinctions they have drawn between the benefits under the two articles.”
[ 32 ] In Messier-Dowty Inc., the issue concerned the accrual of vacation pay during a period of absence due to a compensable injury when the employee was receiving benefits from Workers’ Compensation, not wages from the employer. Arbitrator P. Knopf determined it could not be concluded that there was direct discrimination established in the case before her simply because those off work due to a compensable injury would have received less vacation pay than those actively at work. In the course of reaching this conclusion, she applied reasoning similar to that expressed in Toronto Real Estate Board. The award reads as follows:
“20 ……………………………………………………………
The Union has asked that there be a comparison drawn between the benefits available to employees on sickness and accident and those available to those with compensable injuries for purposes of finding discrimination. However, applying the analyses in Gibbs and the Orillia Soldiers Memorial Hospital cases the Union’s submissions cannot succeed. It is true that the vacation payment to both groups of employees under Articles 15.04 and 15.05 is for the purpose of income replacement. But the two insurance schemes have crucially different purposes. The Workers’ Compensation scheme provides unlimited and greater benefits to employees suffering industrial injuries and is statutorily mandated. It is funded by pooled employer contributions levied in accordance with their risk factors. The sickness-accident insurance scheme under Article 18.04 is a much more limited form of income replacement, privately funded, designed only to cover non-workplace related incapacities. Both the Supreme Court of Canada and the Court of Appeal have directed us that a comparison of the benefits allocated for different purposes does not in itself determine discrimination. The Courts have advised that insurance benefits designed for disparate purposes can differ without offending the provisions of the Human Rights Code. In the case at hand, we have two different forms of insurance schemes, designed to cover different purposes. The difference in the benefit is relevant to the reasons for the protections. Accordingly, there is nothing offensive about a collective agreement containing a provision that is different for an occupational sickness or injury as opposed to a non-occupational incapacity……………………….………..
[ 33 ] I note that the above two (2) authorities relied on by the Employer were cited with approval in British Columbia Government and Service Employees’ Union (Sheshka Grievance). Arbitrator S. Lanyon stated therein that these awards determined that workers’ compensation benefits and short-term and long-term disability benefits can be designed for different purposes without offending the provisions of the Human Rights Code.
[ 34 ] In Domtar Inc., the collective agreement provided benefits for employees on long-term disability who had not been injured at work for the lesser of the employee’s length of service or until age sixty-five (65). Workers injured in the workplace who received disability under the WSIA, in contrast, were only entitled to benefits for twenty-four (24) months. The grievor, who was determined to be permanently disabled by the WSIB, lost coverage for medical, surgical, drug and hospital plans for both himself and his family once he had been off work on WSIA benefits for twenty-four (24) months. Arbitrator B.A. Kirkwood determined that the grievor was at a disadvantage when compared to those employees who were disabled outside of the employment context and who had service in excess of twenty-four (24) months. She found that the grievor was part of two (2) similarly situated groups of employees who were disabled for the long term and concluded that he was discriminated against based on the prohibited ground under the Human Rights Code of disability. The relevant portion of the award reads:
“21 In my view, the Supreme Court in Gibbs, looked at the purpose of the disability plans, as it was the distribution of the benefits under the disability plan that was in issue. However in this case, it is not the distribution of benefits under the LTD plan and the WSIB plan that are in issue, but rather the distribution of benefits under the plan set out in Article 14.04. The issue is whether the employer’s obligations to contribute and provide coverage for its employees for medical, surgical, drug and hospital care as provided in Article 14.04 are discriminatory, in particular in its application to the treatment of the grievor. Therefore it is not the purpose of the LTD and the WSIB that governs whether the employer discriminated against the grievor, but the purpose of the plan set out in Article 14.04 and its distribution of benefits.
28 Similarly as in the Gibbs decision, the relevant comparator group, is not those at work, who may at one time in the future be eligible for benefits, but the other group of disabled employees. The grievor’s case falls within the group of employees who are covered under the WSIA, and his treatment must be compared with the treatment given to employees who are disabled, injured or ill from a situation not arising from their employment and who have accumulated more than twenty-four months service with the employer.
30 When the level of benefits as set out in Article 14.04 and Schedule E of the collective agreement is applied to these two groups, the level of benefits conferred upon those who are in receipt of WSIA benefits is less than those who do not. Therefore, the grievor, as an employee on compensable benefits under WSIA, and as part of the category of person protected by the Code, has received lesser benefits and has been discriminated against…………………………………………
[ 35 ] The arbitration award in Domtar Inc. was set aside by the Ontario Superior Court of Justice, Divisional Court on an application for judicial review brought by the employer. Swinton J., writing for the Court, accepted that the awards in Toronto Real Estate Board, Messier-Dowty Inc., and British Columbia Government and Service Employees’ Union (Sheshka Grievance) all stand for the proposition that it is not discriminatory to provide differential benefits for those with work-related versus non-work-related disabilities. In her judgment, the issue was whether the differential treatment caused disadvantage to those in receipt of WSIA benefits in a manner that was discriminatory. After considering the appropriate comparator groups and the nature of the two (2) schemes in question, the Court held that the arbitrator erred in holding that Article 14.04 of the collective agreement discriminated on the basis of disability. The pertinent excerpts from the decision read:
“23 The arbitrator compared two groups of employees-those receiving WSIA benefits who had worked for the company for more than two years and those receiving LTD benefits and who had worked for the company for more than two years. In my view, the arbitrator erred in making that comparison and failing to consider the two groups treated differently under Article 14.04-those with work-related injuries and illnesses who are in receipt of WSIA benefits and those with non-work-related injuries or illnesses who are covered by the private insurance scheme. Moreover, she erred in focusing on the allocation of one benefit to those on WSIA and LTD supported absences without considering how the other elements of the two schemes balance out.
25 A comparison of the two regimes reveals important differences between them. In general, employees in receipt of WSIA benefits are better off than individuals who receive LTD benefits. The LTD benefits are payable only for a period equivalent to the time that the individual worked for the company, while WSIA benefits are payable until the loss of earnings ceases or to age 65.
28 A comparison of the two groups-those in receipt of WSIA and LTD benefits-shows that they have different income replacement needs. Although recipients of WSIA benefits may have a shorter entitlement to drug and hospital benefits in certain circumstances, they also have significant advantages over those on LTD in other respects. When the broader context is considered, one can not conclude that those in receipt of WSIA benefits are disadvantaged, nor have they been the subject of discrimination within the meaning of the Code, merely because they receive different coverage by the employer under the drug and hospital plans.”
[ 36 ] In Orillia Soldiers Memorial Hospital, the employer, under the central collective agreement, was not required to contribute premiums to employee benefit plans after the employees had been receiving long-term disability payments for specified periods of time. The Ontario Court of Appeal held, inter alia, that this did not amount to discrimination on a prohibited basis under the Human Rights Code. The pertinent passages from the judgment read:
“In this passage, the court identified employee benefit plans as a form of compensation. In my view, employer contributions to such plans are similarly a form of compensation. The appellant provided no evidence to the contrary. Providing different levels of compensation to different groups of employees is not itself discriminatory within the meaning of the Code. Prohibited discrimination only occurs when the distinction is based on a prohibited ground. The prohibited ground alleged in this case is ‘by reason of handicap’ within the meaning of s.10. The appellant argues that the nurses are denied this form of compensation because they are handicapped. Thus, the violation of s.5(1) of the Code is established. I do not agree.
Disabled nurses do not receive this compensation because they are not providing services to their employer. It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not………..”
-and-
“In the case presently before the court, the purpose of the employer contributions to benefit plans is to provide an additional form of compensation in exchange for work. Having chosen to provide this form of compensation, the employer could not discriminate on a prohibited basis. However, the employer could distinguish based on the reason for providing the compensation: work. On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. But, in this context it makes no sense to compare working
employees with those not working. As Sopinka J. said, comparing the benefits allocated to employees pursuant to different purposes is not helpful in determining discrimination.
I also do not find it helpful to attempt to isolate different elements of the compensation package such as employer contributions to premiums, vacation pay, and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. When the employee is not working, different considerations and different forms of payment may apply. For instance, employees may receive workers’ compensation or long-term disability payments.”
(pages 10, 11 Quicklaw)
[ 37 ] The reasoning expressed in the above passages was applied in all of the following authorities relied on by the Employer: McNally; Donoghue; Eveleigh; Union Grievance et al.; Providence Care; Messier-Dowty Inc.; and British Columbia Government and Service Employees’ Union (Sheshka Grievance).
[ 38 ] The reply of Union counsel included the following submissions:
i. This case is premised on the adverse affect experienced by the grievor, as a result of the Employer’s application of article 41.5 of the collective agreement. The Union does not assert that the application of the aforementioned article will result in discrimination in all cases. Counsel maintained that the Union is not attempting to change the scheme negotiated by the parties. She stated that the instant matter would be a “one-off” if the Union is successful in the grievance;
ii. It is irrelevant if there is no case right on point. Counsel submitted that human rights law is not static and that it evolves over time. The decision in Gibbs was cited as an example of the evolution in the jurisprudence;
iii. The instant dispute focuses on only one (1) scheme, namely the STSP. Counsel argued that the decision here should turn on an analysis as to whether the Employer’s administration of that Plan in respect of the grievor contravened the Human Rights Code. It was her submission that the approach adopted in Gibbs is applicable and that Toronto Real Estate Board is distinguishable, as the latter matter involved the consideration of two (2) schemes. Additionally, counsel noted that the decisions in Ontario Jockey Club, which were issued subsequent to Toronto Real Estate Board, held that the nature of the event giving rise to the injury or illness amounts to a discriminatory distinction for purposes of the Human Rights Code; and
iv. The awards in McNally and Eveleigh, which determined that the Employer could change an employee’s status from full-time to part-time due to the person’s physical inability to work full-time hours, with a consequent loss or reduction of employment credits and benefits, are inapplicable to the present dispute given that the grievor has been a full-time employee throughout the period material to this dispute.
[ 39 ] The decisions in Gibbs, Ontario Jockey Club, and Ottawa Hospital all involved differential treatment under a single plan or scheme of insurance. In Gibbs, the insurance plan provided for differential treatment, in respect of income replacement, for physically disabled employees and mentally disabled employees. In Ontario Jockey Club, the differential treatment under the short and long-term disability plan was premised on whether the injury or illness was caused by an identifiable incident or was the result of a condition which onset on a gradual basis. In Ottawa Hospital, the differential treatment under the short-term disability plan was based on whether the employee was capable of working at all or was able to work part-time. In all of these cases, the treatment complained of was found to be discriminatory, as the entitlement to benefits differed as the result of characteristics that were not relevant to, and were inconsistent with, the purposes and objectives of the plans.
[ 40 ] In my judgment, all of the above authorities relied on by the Union are distinguishable from the circumstances existing in this case. Here, there are two (2) plans or schemes which must be considered, namely, the WSIA regime provided by statute, as augmented by articles 41.1, 41.2, 41.3 and 41.4 of the collective agreement, and the STSP provided for by the parties in article 44. These two (2) schemes are distinct and have separate purposes. The former provides, inter alia, for coverage or protection for loss of earnings for those employees who experience a work-related injury or illness. The latter offers short-term sickness benefits for those unable to attend to their duties because of a non-work-related sickness or injury. The two (2) plans are focused on disparate groups of employees and provide for income replacement through different mechanisms. In this case, I cannot disregard the fact that the grievor has received an award under the WSIA. I think it would be wrong to focus exclusively on the administration of the STSP, as suggested by the Union, particularly given that these two (2) plans are designed with different purposes in mind. To reiterate, I find that the present dispute is unlike Gibbs, and the authorities which subsequently adopted the approach taken therein, because it involves two (2) distinct plans with separate purposes. This matter does not arise in the context of a single plan or scheme under which different types of disabilities are subject to differential treatment.
[ 41 ] I have been persuaded that the reasoning expressed in the Toronto Real Estate Board and Messier-Dowty Inc. awards and in the Divisional Court’s judgment in Domtar is applicable here. In Toronto Real Estate Board, the Arbitrator recognized that the short-term disability plan contained in the collective agreement and the statutory plan then provided under the Workers’ Compensation Act (WCA) were distinct schemes designed to meet two (2) different contingencies, and that benefits were allocated thereunder for different purposes. He concluded, in substance, that it was not discriminatory to have distinctions between the treatment of non-work-related absences and those that were work-related and compensable under the WCA. The Arbitrator found that the benefits provided by the two (2) schemes were “legitimately severable” and that they arose in different circumstances and could be “properly treated as being different benefits”. I recognize that this award predated the decisions in Ontario Jockey Club. The latter case, however, was decided in the context of a single plan. Additionally, it did not have to address the impact of the WSIA scheme.
[ 42 ] The Arbitrator in Messier-Dowty Inc. similarly determined that the sickness and accident insurance plan under the collective agreement and the Workers’ Compensation scheme had “crucially different purposes”. She noted, from a review of the applicable authorities, that insurance benefits designed for disparate purposes can differ without offending the provisions of the Human Rights Code. Ultimately, the Arbitrator held that there was nothing offensive about a collective agreement containing a provision that is different for an occupational sickness or injury as opposed to a non-occupational incapacity.
[ 43 ] As previously mentioned, these two (2) awards were cited with approval in British Columbia Government and Service Employees’ Union (Sheshka Grievance). The Divisional Court in Domtar also accepted that they stand for the proposition that it is not discriminatory to provide differential benefits for those with work-related versus non-work related disabilities. In the application before the Court, Swinton J. held that the contractual provision in issue did not discriminate against the grievor on the basis of disability. In reaching this conclusion, the Justice had regard to the different purposes of the two (2) plans and the differing level of benefits provided thereunder.
[ 44 ] I accept the Employer’s submission that the shortfall in income in respect of the Friday absences results directly from calculations made under the WSIA and not from anything done by the Employer. The shortfall is entirely a function of the legislation. I am satisfied that there is no obligation on the Employer, in the circumstances of this case, to accommodate, or top up, the monetary shortfall. I am unable to conclude that the Human Rights Code mandates that employees under different regimes must receive the same level of benefits.
[ 45 ] I have concluded that the result in this case turns on the reasoning expressed in Toronto Real Estate Board and the authorities which subsequently adopted same, and that the authorities relied on by the Union are distinguishable. It is, therefore, unnecessary to address the Employer’s further argument, premised on the judgment in Orillia Soldiers Memorial Hospital, that it is not prohibited discrimination to provide different compensation to different groups of employees if the distinction is based on the employee’s absence from work. Similarly, it is unnecessary to respond to the Employer’s submission that it could change the grievor’s status to part-time from full-time. The Employer has not elected to take this step to date. Instead, the grievor has remained on full-time status throughout the period material to this dispute.
[ 46 ] For all of the above reasons, I find that the Employer has not offended either the Human Rights Code or the collective agreement by its refusal to permit the grievor to access the STSP in respect of the Friday absences. The grievance is accordingly dismissed.
Dated at Toronto, Ontario this 28th day of October 2011.