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)

Association

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Mark Wright Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Legal Services Branch Counsel

HEARING

January 28, August 21, September 20, 2013

Decision

1This grievance is a claim for supplementary health benefits. Although initially filed on behalf of two individuals, AMAPCEO (the “Association”) has pursued only the claim made by Mr. S. (the “grievor”). The grievor’s claim was paid pursuant to Article 34.2(f) of the collective agreement. It is the Association’s position that the claim should have been paid pursuant to the terms of Article 34.2(c) of the collective agreement. There is no dispute as to my jurisdiction to hear and determine the grievance.

2Those provisions of the collective agreement state:

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;

3The hearing proceeded on the basis of agreed facts. The grievor is employed in the OPS and is covered by the collective agreement between the Crown and the Association. In late 2002 the grievor’s spouse gave birth to triplets. One of the triplets went through a number of tests at North York and Sick Kids hospitals in his early years. Although autism was suspected, no formal diagnosis was then made. The grievor’s son also had access to some services through York Region and had an individual education plan (“IEP”) at school, which did not reflect an autism diagnosis. An educational assistant at his school verbally recommended to the grievor and his spouse that they consider a private assessment to clarify their son’s diagnosis. Such assessments are available through the school board however those typically take 12-18 months to arrange. As a practical matter, many parents go through private psychologists in order to obtain the documentation necessary to access appropriate special education services and appropriate accommodations.

4A pediatrician suspected that the grievor’s son might have attention deficit disorder and sensory integration disorder, which fall under the spectrum of autism disorders. By referral dated April 15, 2011, the pediatrician indicated that the boy required “psychoeducational testing by a licensed child psychologist”, describing this as “a diagnostic procedure that can aid in our ability to treat this patient”. The referral further indicated, “to diagnose attention deficit disorder and sensory integration issues”.

5It appears that the grievor’s son attended five appointments with a child psychologist, Dr. C. Kushnir, for purposes of testing. Dr. Kushnir is a licensed psychologist regulated under the Regulated Health Professionals Act. By letter dated June 7, 2011 Dr. Kushnir stated that “[a]ll of the sessions have been part of the diagnostic procedure and none have involved or will involve any treatment”. As part of the process leading to her report, Dr. Kushnir also consulted with an occupational therapist, an educational assistant, a childcare employee, and a special education teacher, all of whom had worked with the child. On May 24, 2011, she met with the grievor and his spouse to discuss her findings, at which time she also made a number of recommendations. On June 28, 2011 Dr. Kushnir provided a comprehensive eleven-page report which was filed in evidence and which records that she administered the following tests over the course of the sessions:

• Stanford-Binet Intelligence Scale, 5th Ed.
• Woodcock-Johnson III, Tests of Cognitive Abilities (WJ-III)
• Wide Range Assessment of Memory and Learning -2 (WRAML-2)
• Wechsler Individual Achievement Test, Third Ed. (WIAT –III)
• Achenbach Child Behaviour Checklist (CBCL), Parent and Teacher Forms
• Behaviour Rating Inventory of Executive Function (BRIEF), Parent and Teacher Forms
• Autism Diagnostic Observation Schedule (ADOS)
• Autism Diagnostic Interview-Revisited (ADI-R)
• Sentence Completion
• Drawings
• Clinical Interview

6Dr. Kushnir concluded that a diagnosis of autism spectrum disorder was appropriate. She made various recommendations in her report in connection with schooling, ongoing professional support, and tax credit assistance for the family.

7As a result of the report, the grievor’s son was able to access Applied Behavioural Analysis (ABA) therapy through a government-funded agency called Kerry’s Place. He had no prior access to this therapy. Kerry’s Place requires that all persons referred to its autism services must have proof of diagnosis within the spectrum of autism. In addition, the boy’s IEP was changed and he was placed in a small, special education class in a community school with additional educational assistant support. The report also enabled the grievor to obtain a disability certificate for his son allowing the grievor to claim a disability tax credit. No psychological treatments or further assessments have been conducted since Dr. Kushnir’s June 2011 report.

8The parties put certain materials in evidence from various agencies and ministries dealing with autism. The Autism Ontario website notes that “early diagnosis is associated with dramatically better outcomes for individuals with autism”. Those materials also state that:

An accurate diagnosis must be based on observation of the individual’s communication, behaviour, and developmental levels…The characteristics of a disorder vary so much, that a child should be evaluated by a multidisciplinary team…

9The December 2012 “Autism Advisor” brochure published by Autism Ontario notes that:

A diagnosis provided by a medical doctor (e.g, psychiatrist) or a psychologist employed in a healthcare setting is covered under OHIP. The services of psychologists in community settings are covered under some employee benefits plans, but not by OHIP. These employee benefit plans may not fund the entire cost of a diagnostic assessment…

10Dr. Kushnir’s work was not covered by OHIP. There was no suggestion that the referral to and work done by the psychologist was other than medically appropriate.

11The assessment cost $2000. The claim submitted by the grievor was paid by Great-West Life (“GWL”) under Article 34.2(f) of the collective agreement at the rate of $40 per half hour for a total of $800. There is no dispute that this decision by the insurer is properly before me. The Association claims that the grievor should have been reimbursed the full cost of the assessment under the terms of Article 34.2(c) of the collective agreement.

12An earlier award of this Vice-Chair (reported at AMAPCEO v. Ontario (MGS), [2005] O.G.S.B.A. No. 140) was filed in evidence. Following the release of that award, which dealt with a number of issues under Article 34.2 of the collective agreement, including Article 34.2(c), the parties entered into an agreement titled “Implementation of AMAPCEO Benefits Policy Dispute” (the “Implementation Agreement”). That agreement states:

The Employer and AMAPCEO representatives on the Joint Benefits Review Committee (JBRC) have met for the purposes of attempting to resolve implementation issues arising from the GSB award… Accordingly, the parties have agreed and understand the following:

Dental Plan

1. The definition of “dependent child” in the Dental Plan shall be applied until the ratification of the next collective agreement…

2. Effective on the ratification date of the next AMAPCEO collective agreement, the definition of a dependent child is amended by replacing section 6 (b) (iv)…

Diagnostics

3. 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 expenses 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;

4. 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..:

a) …

b) is excluded from the cap on reimbursement for vision or hearing care under the plan;

c) …

For clarity, the parties acknowledge that routine eye examinations are a diagnostic procedure…

5. 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”.

13There was no dispute that the conditions in paragraph 3 of the Implementation Agreement applied to those diagnostic procedures referenced in paragraph 5 of that agreement. There was also no dispute that paragraph 5 was not limited to those procedures specifically referenced in paragraph 3 of the Implementation Agreement. Notwithstanding that those provisos do not expressly appear in Article 34.2(c) of the collective agreement, there was no suggestion but that those conditions applied to the claim at issue.

14The parties also agreed that the issue of remedy, if any, should be remitted to them.

15It was the position of the Association that this claim really gave rise to a factual question, that being, was Dr. Kushnir’s work a procedure administered in order to obtain a diagnosis? The Association argued that the evidence confirmed that all of the tests and interviews done as part of the assessment were done by Dr. Kushnir for the purpose of arriving at a diagnosis. Her report concluded, noted the Association, that the grievor’s son’s behaviour fit the DSM-IV criteria for a diagnosis of autism. She provided no treatment, noted the Association. The purpose of the assessment governed its characterization, argued the Association. Therefore, argued the Association, as a diagnostic procedure, it fell within the clear and unambiguous language of Article 34.2(c) of the collective agreement. As a result of that diagnosis, noted the Association, the grievor’s son was only then able to access a number of educational, therapeutic, and financial services and supports. One can’t access treatment, argued the Association, without the diagnosis.

16Further, argued the Association, this assessment met the conditions set out in paragraph 3 of the Implementation Agreement, having been performed after 2003 by a licensed practitioner regulated under the Regulated Health Professionals Act and it was not covered by OHIP. The Association relied on the definition set out in the earlier arbitration award at pages 24 and 29, which described “procedures utilized in order to assist in obtaining in diagnosis” as being caught by Article 34.2(c), as well as the discussion in that award. It further relied on paragraph 5 of the Implementation Agreement, which, it noted, repeated that same definition of “diagnostic procedures”.

17The Association argued that a finding that this assessment fell under Article 34.2(f) of the collective agreement would read out any diagnostic work performed by a psychologist from coverage under Article 34.2(c), even though diagnoses by all other health care professionals would be captured. Such a result would be perverse, argued the Association, and would require clear, exclusionary language. Where there was a clear right in the collective agreement, argued the Association, the construction to be preferred is one that preserves the right and does not limit or otherwise restrict that right. Articles 34.2(c) and (f) were properly read as a whole, argued the Association and in a manner in which they do not conflict. Absent 34.2(f), argued the Association, there would be no coverage for psychological services except those diagnostic services that fell within Article 34.2(c). Article 34.2(f) added to the benefit package, it argued, by providing certain coverage for psychological services in addition to diagnostics. In support of its arguments the Association referred to the decisions in Real Canadian Superstore, (2008) 2008 ABCA 210, 172 L.A.C. (4th) 289 (Alta. C.A.); Re Tung-Sol of Canada Ltd., (1964) 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville); The Corporation of the City of Etobicoke and the Etobicoke Professional Firefighters’ Association, unreported decision of Arbitrator McLaren dated July 28, 1987; Re Sutton Place Hotel and United Steelworkers of America, (2001) 2001 CanLII 61970 (ON LA), 107 L.A.C. (4th) 370 (Armstrong); and The Corporation of the Town of Richmond Hill and the Richmond Hill Firefighters Association, unreported decision of Arbitrator Herman dated December 6, 2011.

18The Employer made four arguments. Firstly, it argued that a careful review of the report disclosed that what was done was not a discrete, specific diagnostic procedure but was the provision of psychological services within the meaning of the collective agreement. The report, argued the Employer, indicates that the work went beyond diagnostics and included recommendations and advice regarding accessing treatment, services and equipment, and included information regarding accessing a tax credit.

19Second, it argued that, if the services provided were determined to be, in whole or in part, a diagnostic procedure, those services still constituted the provision of ‘psychological services’ and fell within Article 34.2(f) of the collective agreement. If the services were captured by both Articles 34.2 (c) and (f), argued the Employer, contract interpretation rules would require a finding that sub-paragraph (f) properly applied and not sub-paragraph (c). Those principles, argued the Employer, were, firstly, that a specific clause trumped a general clause, also described as a more directed provision prevailing over a broader clause. In this case, the Employer argued, both ‘procedures’ and ‘services’ were broad terms. It was necessary therefore, it argued, to focus on the terms ‘diagnostic’ and ‘psychological’, further arguing that the term ‘diagnostic’ was a more general term, encompassing a large number of exercises performed by a large range of health care practitioners, whereas psychological services were something only a psychologist provided. Second, argued the Employer, where there is a dispute over a monetary entitlement, the dispute must be determined against the union unless the union can point to clear and unambiguous language indicating that the Employer intended to confer that entitlement. There was no evidence, argued the Employer, from which to conclude that the Employer intended to confer this entitlement in negotiations. If the provisions are mutually exclusive and it is not clear which prevails, argued the Employer, the Association must lose, as it would be inappropriate to assume that such an entitlement was intended. Similarly, argued the Employer, the contra proferentem rule cannot be applied, as there was no evidence regarding which party actually drafted the disputed language.

20In the third alternative, the Employer argued that the provisions could be read in harmony. That is, it argued, if services that are clearly psychological services were also diagnostic and paid at 100% under sub-paragraph (c), they would also be subject to sub-paragraph (f), which caps payment at $40.00 per half hour to a maximum of $1400. So, argued the Employer, these services, even if diagnostic would be paid at 100% under sub-paragraph (c) but only up to the cap under sub-paragraph (f).

21Fourthly, argued the Employer, if those arguments were rejected, it was still necessary to parse the work done and order the full cost only to those services that were clearly diagnostic in nature, suggesting that that matter be remitted to the parties.

22It was the Employer’s further position that the Implementation Agreement was irrelevant to this dispute, as the application of Article 34.2(f) did not arise during the prior proceedings from which the Implementation Agreement flowed. Nothing in that Implementation Agreement, argued the Employer, suggested that the Employer was limiting its reliance on sub-paragraph (f). Alternatively, argued the Employer, these psychological services can be provided in circumstances that are covered by OHIP so the condition in paragraph 3 is not met.

23In support of its arguments, the Employer referred to Black’s Law Dictionary, 8th ed., The Concise Oxford Dictionary of Current English, 8th ed., and the decisions in College of Opticians of British Columbia and Moss, [2011] B.C.J. No. 528; OPSEU v. Ontario (LCBO), [2011] O.G.S.B.A. No. 96 (Harris); OPSEU Union Pension Trust v. OPSEU, Local 568, (2001) 2001 CanLII 62122 (ON LA), 101 L.A.C. (4th) 336 (Abramsky); DDM Plastics Inc. v. IAM, Local 2792, (2000) 2000 CanLII 29501 (ON LA), 88 L.A.C. (4th) 299 (Solomatenko); MacDonald’s Consolidated v. UFCW, Local 401, (2003) 2003 CanLII 89585 (AB GAA), 119 L.A.C. (4th) 397 (Sims); H.E. Vannatter Ltd. v. United Automobile, Aerospace and Agricultural Workers of America (UAW-CLC), Local 251, (2002) 2002 CanLII 79008 (ON LA), 106 L.A.C. (4th) 242 (Williamson); National Car Steel Ltd. v. USW, Local 7135, (2007) 161 L.A.C. (4th) 182 (Burkett); Newfoundland Assn. of Public Employees v. Newfoundland, (1994) 1994 CanLII 18680 (NL LA), 40 L.A.C. (4th) 372 (Oakley); Nova Scotia Union of Public Employees, Local 2 v. Halifax, (2002) 2002 CanLII 79110 (NS LA), 110 L.A.C. (4th) 258 (Christie); Selkirk and St. Andrews Regional Library v. CUPE, Local 336, (2003) 2003 CanLII 89525 (MB LA), 119 L.A.C. (4th) 141 (Hamilton); LCBO v. Ontario Liquor Control Boards Employees’ Union, GSB File #2001-0555, decision of Vice-Chair Tims dated November 3, 2003; OPSEU v. Crown in Right of Ontario (MGS) (Union Grievance), GSB File #2010-0405, decision of Vice-Chair Abramsky dated February 8, 2012; OPSEU v. The Crown in Right of Ontario (MGS) (Union Grievance), GSB File #2010-0405, decision of Vice-Chair Abramsky dated May 10, 2011; OPSEU v. The Crown in Right of Ontario (MGS) (Vitorino et al), GSB File #2009-1293 et al., decision of Vice-Chair Abramsky dated November 30, 2010; and OPSEU v. The Crown in Right of Ontario (MNR) (Hymers et al.), GSB File #2002-0104 et al., decision of Vice-Chair Kirkwood dated January 18, 2005.

24In reply, the Association asserted that both the prior award and the Implementation Agreement used broad language to define the term ‘diagnostic procedures’ as including "procedures utilized in order to assist in obtaining a diagnosis" and that the Employer was attempting to relitigate the prior award through any submission that sought to narrow the scope of that term. A purposive approach was required, argued the Association; the language did not say “solely for diagnosis” and this work assisted in obtaining a diagnosis. The fact of recommendations made did not take away from that conclusion, argued the Association. The Implementation Agreement is a guide, argued the Association, to help the parties understand when Article 34.2(c) applied and is therefore both relevant and decisive, as it confirms a broad, purposive definition. This work was done to assist in obtaining a diagnosis, was done by a licensed practitioner, and was not covered by OHIP, and therefore meets the conditions set out in the Implementation Agreement, argued the Association.

25The Association agreed that a general rule of construction is that the specific trumps the general, but only where there was a conflict between the two provisions. It asserted no conflict between sub-paragraphs (c) and (f). Article 34.2(c) applied with respect to diagnostic procedures, argued the Association, and psychological services, other than diagnostics, were covered under Article 34.2(f). Even in the face of a conflict, argued the Association, the ‘diagnostic procedures’ language was more specific. In terms of monetary entitlement, argued the Association, there was clear entitlement to payment for 100% of diagnostic procedures. In that circumstance of a very clear benefit, reiterated the Association, it would require clear language to read down the benefit. There was nothing here, argued the Association, to suggest that the ‘diagnostic procedure’ benefit was restricted.

26The Association agreed that the collective agreement language must be read as a whole. It argued that reading the provisions together in the manner suggested by the Employer would effectively read out the ‘diagnostic procedures’ provision. Finally, with respect to ‘parsing’ the work, the Association relied on its position that the language used in the prior award and the Implementation Agreement to define ‘diagnostic procedure’ was very broad and that overwhelmingly, the report prepared by the psychologist showed that the work was done for providing a diagnosis.

27It is the case that the work in issue is properly characterized as the provision of psychological services. There was no suggestion but that this work falls within the usual ambit of services provided by a licensed psychologist in the normal course of that professional practice.

28It is also the case that, at a minimum, administration of the various tests and the consultations with, and background provided by other professional service providers and the parents were “procedures utilized in order to assist in obtaining a diagnosis”, a definition used in the prior award and reiterated by the parties in the Implementation Agreement. The materials submitted from Autism Ontario show that autism spectrum disorder is difficult to diagnose and requires this kind of multi-faceted review and analysis of behaviour, cognition, language, and function in order to make an appropriate diagnosis.

29The Implementation Agreement is relevant. The document confirms that, further to meeting “for the purposes of attempting to resolve implementation issues”, the parties “have agreed and understand the following”. The parties then limit and/or clarify the application of certain benefits under the collective agreement in light of the earlier arbitration award. So, for example, in paragraphs 1 and 2 of the Implementation Agreement, the parties agreed that a more limited “dependent child” definition in the dental plan would take effect upon ratification of the next collective agreement. With respect to diagnostic procedures, paragraph 3 of the Implementation Agreement introduced conditions that the parties agreed had to be met in order for the cost of the diagnostic procedure to be reimbursed.

30In that regard, the facts confirm that this assessment met the first two criteria in paragraph 3 of the Implementation Agreement. The work was performed by a licensed practitioner regulated under the Regulated Health Professionals Act, practicing within the scope of that license. The expense was also incurred after January 1, 2003.

31The Employer latterly asserted that, if the Implementation Agreement was relevant, Dr. Kushnir’s work did not meet the terms of paragraph 3 c) of the Implementation Agreement as the assessment could have been performed in circumstances where it would have been covered by OHIP. These assessments are, at best, a procedure covered by OHIP only in certain circumstances. Given my conclusion, however, I need not determine this issue and will assume that the assessment met the conditions of paragraph 3 of the Implementation Agreement.

32Therefore, at least most of this work was both a “diagnostic procedure” and provision of “the services of a psychologist” within the terms of Article 34.2 of the collective agreement. Contrary to the Employer’s first submission, this work cannot properly be solely characterized as the services of a psychologist. Article 34.2(f) references the health care professional administering the service within their usual scope of practice. Article 34.2(c) references the nature of the procedure, regardless of who conducts that procedure (subject to the terms of the Implementation Agreement). In the particular circumstances here, work done by Dr. Kushnir was both a diagnostic procedure and provision of the services of a psychologist.

33How, then, does one apply the terms of the collective agreement in these circumstances, recognizing that, while applying standard principles of interpretation, the goal is to ascertain the intention of the parties.

34Both parties attempted to assert that one provision took precedence over the other based on the interpretive rule that a specific provision overrides a general provision. It cannot be said, however, that one of these sub-paragraphs is more specific in relation to the generality of the other. In order to draw any conclusion regarding the specific over the general, both must relate to some common discussion point. These provisions address different things. Sub-paragraph (c) deals with diagnostic procedures. Sub-paragraph (f) deals with psychological services. And each may exist as a sub-set of the other. That is, diagnostic procedures may include psychological services and psychological services may include diagnostic procedures. Neither is more specific that the other. The issue of the application of these provisions arises because of a differing rate of reimbursement. However, like their characterization, it cannot be said that one rate is more specific than the other. Both are specific. They are simply different. Thus, that interpretive rule is of no assistance.

35The Employer argued that, in a dispute regarding monetary entitlement, absent clear and unambiguous language indicating that the Employer intended to confer that entitlement, one cannot assume the entitlement. However, there is no doubt that the Employer has conferred two monetary entitlements. It has agreed to provide a supplementary health and hospital insurance plan that “shall” reimburse members of this bargaining unit 100% of the cost of diagnostic procedures. That entitlement is reinforced by the parties’ Implementation Agreement, and particularly by paragraph 5 which states that the insurer “will be instructed to pay for diagnostic procedures defined as...procedures utilized in order to assist in obtaining a diagnosis”. The Employer has also agreed that the benefit plan “shall” reimburse the cost of the services of a psychologist at a fixed rate to a stated maximum. Individually, those entitlements are not ambiguous and have been conferred. Ambiguity arises only because the service in this case falls within both entitlements.

36Can the provisions be read together, in harmony? The Employer argued that if both provisions applied, diagnostic services would be paid at 100% but only to the cap of $40 per half hour to a maximum of $1400. It is not unreasonable to assume that a cap on reimbursement is likely to reflect a lesser benefit than a rate of reimbursement at 100%. Thus, that interpretation would have the effect of reading out the entitlement under Article 34.2(c) in any case where the cost of the diagnostic procedure exceeded the rate allowed by the cap. Having a lesser benefit override a better benefit may not be a good example of harmony. The Association’s proposed ‘harmonious’ reading would result in the lesser benefit being subsumed by the greater benefit, arguably a more palatable example of harmony.

37In that regard, the Association argued that a clear right in the collective agreement to be reimbursed 100% of the cost of diagnostic procedures would require clear language to restrict its application. But that is precisely the problem. There is clear language that applies in the circumstances that would act to limit that right. Article 34.2(f) does not exclude ‘diagnostic procedures’ from its application. The only question is whether the parties intended that provision to apply in these circumstances.

38Following the release of the earlier award, the parties negotiated the Implementation Agreement. The parties agree that the conditions established by that agreement with respect to the reimbursement of diagnostic procedures apply, notwithstanding that they are not expressly included in the collective agreement. In effect, the terms of the Implementation Agreement modify the collective agreement. At a minimum, those terms speak to the parties’ intention.

39In 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.

40This 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.

41This, 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.

42Having 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.