GSB#2013-1965

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 (GAM)

Association

• and -

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

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

James K. McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Robert Fredericks Ministry of Government Services Legal Services Branch Counsel

HEARING

June 6, 2014

Decision

1The issue in this early stage of this matter is whether the complainant (whom the parties have asked me to refer to as “GAM”) ought to be permitted to testify in support of her claim. While, in the normal course, one might find any suggestion to the contrary surprising, the employer has mounted a credible and thoughtful case for the blanket exclusion of GAM’s oral evidence in this case. As will be seen, however, and for the reasons that follow, I have not found the employer’s case to be persuasive and, subject to what follows, I am declining to rule, at this stage, that GAM’s viva voce will not be received.

2The employer’s position commences with and is centred in the assertion that this is not a typical arbitration case. I agree.

3GAM has applied for and has been denied long term disability benefits. She claims she was totally disabled for a period which spans October 2010 to December 2011 (and perhaps extends some eight weeks further into 2012, at least on a partial basis, during a period of time it is claimed she was capable of returning to work on a graduated basis).

4On the basis of documents placed before me, it appears that her claim has been rejected on three separate occasions (May 5, 2011; that denial was then the subject of an appeal which was denied in October 12, 2011; and a further appeal was denied on March 11, 2013). And, at the hearing in this matter, I was told that further medical information has recently been provided to the insurance carrier. The parties agreed to proceed with the instant case, although a further determination is apparently pending from the carrier.

5Article 31 of the collective agreement is titled “Benefits-General”. Articles 31.1 and 31.2 provide that, among other “Benefit Plans”, the Long Term Income Protection Plan (“LTIP”) continues to cover full time employees.

Article 31.5 is as follows:

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

6I will turn to Article 32 shortly as its provisions are central to the issue currently before me.

7Articles 33 – 36 each deal with different benefit plans. LTIP is the subject of Article 36. Little in that Article was identified as either controversial or particularly relevant for the instant purposes.

8It is Article 32 – “Joint Benefits Committee” which is at the heart of the instant procedural dispute. Articles 32.1 and 32.2 constitute the committee and establish its mandate which, among other things, includes making “decisions on complaints or differences involving the denial of benefits … to an individual”. Article 32.2.2 goes on to deal with “Claims Reviews” and outlines the procedural route and parameters which lead to this matter being brought before me.

32.2.2.1. All complaints by individuals that they have not received proper entitlement to benefits under the Benefit Plans shall be made to the Committee.

32.2.2.2. Where the claim dispute, and/or Committee related procedural issues, cannot be resolved by consensus of the Committee, the parties will be joined by a seventh member who shall be a mutually agreed upon independent third-party. The selection of the independent third party shall be made on agreement of the parties from the GSB Roster provided for under the collective agreement.

32.2.2.3. The Committee, with signed authorization from the employee, shall be entitled to full disclosure from the Carrier(s) when claims are refused under a Benefit Plan.

32.2.2.4. Appropriate impartial medical consultants shall be available to the committee in an advisory capacity to provide information on the nature of specific illnesses or disabilities.

32.2.2.5.1 The fees and expenses of the medical consultants referred to in this Article and the independent third-party referred to in this Article shall be divided equally between the Employer in the Association.

32.2.2.6 The Employer shall provide relevant information on the claim denial to the Committee for its consideration.

32.2.2.7 The independent third party shall have the powers of a Vice Chair of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act. He or she shall adopt such procedures as he or she considers appropriate in the circumstances having regard to the nature of the dispute, the need for a fair process of dispute resolution, and the desirability of ensuring the resolution of the dispute in an expeditious and informal manner. This may include limiting the nature and extent of the evidence; determining the manner in which the complaint shall be resolved, with or without an oral hearing; and imposing such other conditions as he or she considers appropriate.

32.3 The Carrier(s) shall provide additional information for the Committee’s consideration as may be reasonably requested by a member of the Committee.

32.4 Membership on the Committee shall be for a one (1) year period, and is renewable at the discretion of the nominating party. The term of the independent third party shall be for as long as the terms and conditions of this Agreement continue, unless the parties determine otherwise.

32.5 Decisions of the committee or, where the Committee cannot reach consensus, decisions of the independent third party referenced in Article 32.2.2 are final and binding on the Employer, the Association, the employees and the Carrier.

9The employer asserts that oral evidence ought not to be received. It makes that submission in a bold and unqualified manner and, alternatively, with a narrower reach. Such evidence ought not to be heard in any cases of this type, i.e., those in which an “independent third party” is called upon to break a committee deadlock. Making the same submission alternatively and with a progressively narrower focus, it asserts that oral evidence ought not to be heard in cases involving benefit claims for LTIP or, finally, in the particular circumstances of the present case. Such matters are to be determined on the basis of the “paper file” only, the record of the carrier and any other relevant documents reviewed by the committee.

10Counsel provided a skeletal outline of the paper file in the instant case and urged that, keeping within the letter and spirit of the provisions reproduced above, the hearing in this matter ought to be restricted to a consideration that “paper file”, a copy of which was provided to me.

11The employer offers two slightly different paths leading to that same conclusion.

12First, this is not a typical arbitration process under the parties’ collective agreement. Special rules apply. And a proper appreciation of the specific provisions the parties have agreed are to govern this proceeding suggests a joint commitment to an expeditious procedure. Further, when one considers the process leading up to my involvement, the detailed information and the access to that (or other) information afforded to the committee, one ought not to conclude that the parties intended the hearing before me to be conducted de novo. Rather this is a twofold appeal – it is an appeal of the carrier’s denial and an appeal of (or at least a mechanism to resolve) the committee’s deadlocked response to the complaint. The work has been done, all of the evidence has been gathered in documentary form. Article 32.2.2.7 explicitly recognizes “the desirability of ensuring the resolution of the dispute in an expeditious and informal manner”. To treat this proceeding as a de novo hearing and to receive the complainant’s oral evidence (which would, in turn, open the door, at least in other cases, to hearing other oral evidence, potentially including the conflicting testimony of medical personnel and other experts) would render the parties’ shared objective of expedition elusive indeed.

13The second and related concern raised by the employer pertains to the treatment of “new evidence”. It has now been well over a year since the last denial of GAM’s claim. The documentary file (which, of course, includes her submissions to the carrier) is complete and the current litigation ought not to be an opportunity to augment the record. The instant decision ought not to be based on new evidence that was not previously available to the Joint Benefits Committee. The instant determination ought to be made on the same basis as the Committee’s decision (or deadlock). And that returns us to the “paper file” which is the sum total of all of the documentary evidence that was available to the committee. Counsel did note, however, that if there truly is new information relative to the claim, GAM can provide that to the carrier for its review. The carrier would then make a fresh determination (which, if need be, could then presumably be the subject of fresh deliberations by the committee and, if the committee was unable to decide the matter, could then be referred to the independent third party).

14The Association, of course, views matters differently. It, too however, rests its submissions on two points.

15First, it asserts, quite simply, that had the parties truly wished to restrict the instant matter to a review and consideration of the paper file, they could have done so. However, nothing in Article 32, which governs the instant process, either contemplates or requires a paper hearing without the possibility of any oral evidence. And absent any such strict requirement, the proposition that there ought to be a blanket prohibition on the reception of relevant evidence from the very employee affected by the ultimate determination cannot be seen as promoting the salutary goal of fairness. Whether by virtue of the provisions of the collective agreement or the statutory framework upon which it is built, I have a broad range of discretion with respect to the conduct of the hearing in this matter and the reception or exclusion of evidence. There simply is no blanket rule precluding the exclusion of oral evidence.

16Further, and lest there be any question regarding the relevance of the evidence the Association seeks to adduce, I was referred to a line of arbitral and judicial authority. It supports the proposition that the evidence of a claimant in case where the issue is whether s/he is/was totally disabled is not merely relevant, but can be of critical importance. It is not necessary for me to review these cases in any detail. Their flavour is encapsulated in the following extract from Norwood on Life Insurance in Canada, 2d ed. (Scarborough: Carswell, 1993) p. 378 (cited in Kevin Drew Lumsden v The Government of Manitoba (2007), 160 A.C.W.S. (3d) 282 at para 102):

It is possible that even where there is no objective, measurable evidence of disability, an insured may establish a real and compensable total disability due to subjective pain, depression, fear of work, etc.

17In fairness to the employer, its submissions were not premised on any asserted lack of relevance. Rather, as I have indicated, its position flows from its conception of the type of proceeding the parties have constructed for the resolution of benefits claims generally and this claim in particular.

18With respect, I am constrained to reject the employer’s submissions, at least insofar as they urge a broad general and absolute prohibition on the receipt of oral evidence in all cases, or, even merely all LTIP cases, referred, pursuant to the terms of the parties’ agreement, to an “independent third party”.

19In rejecting these submissions, I need go no further than the words of Article 32.2.2.7:

The independent third party shall have the powers of a Vice Chair of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act. He or she shall adopt such procedures as he or she considers appropriate in the circumstances having regard to the nature of the dispute, the need for a fair process of dispute resolution, and the desirability of ensuring the resolution of the dispute in an expeditious and informal manner. This may include limiting the nature and extent of the evidence; determining the manner in which the complaint shall be resolved, with or without an oral hearing; and imposing such other conditions as he or she considers appropriate.

20I need not even consider the opening sentence which confirms that I have all of the statutory powers of a Vice Chair of the GSB. The balance of the article makes clear that I have a discretion to adopt such procedures as I consider appropriate. In making that determination I am to consider the circumstances and nature of the dispute, the need for a fair process and the desirability of expedition and informality. I may limit the nature and extent of the evidence, determine whether or not to hold an oral hearing and impose such other conditions as I consider appropriate.

21There is no doubt that the parties have provided me with the authority to exclude the receipt of oral evidence, should I consider that to be appropriate. I am not persuaded, however, that there is any blanket or invariable rule precluding the receipt of oral evidence in these types of benefit cases, including those relating to LTIP claims.

22It may, however, be appropriate to decline to receive oral evidence in individual cases. I am not persuaded that it is necessary to come to any such conclusion in the instant case at the present time. There are two reasons for my reluctance.

23First, although the employer provided a skeletal review of the paper file to provide me with an outline of the nature of the dispute, the argument before me was largely generic in nature. I do not know, except in the most general of terms, the nature or substance of the evidence the Association wishes to adduce through GAM’s testimony.

24Following upon that, I believe that it is appropriate at this stage to adopt a procedure which may reconcile any (actual or potential) conflicts between the collective agreement goals of fairness and expedition in these proceedings. This process may (or may not) render it unnecessary to receive GAM’s evidence in the form of oral testimony.

25I hereby direct the Association to prepare a detailed statement outlining the evidence it expects GAM would give if she were to testify in these proceedings. This statement is to be provided to employer counsel not less than thirty days prior to the next hearing date in this matter. The parties are to review this statement and to confer with each other as to the use to which it ought to be put and the need, if any, for oral testimony. The Association may, for example, conclude that it still wishes GAM to testify. The employer may, for example, wish to have the opportunity to cross-examine. If the parties are unable to agree as to how to proceed, I will deal with the issue at the next day of hearing. In any event, in the interests of expedition, and barring any agreement to the contrary, the parties should attend at the next hearing date prepared to examine and cross-examine GAM, as the case may be.

26Before concluding, I wish to note that I have not ignored the employer’s concerns regarding new evidence, although in this case that may not be a real issue, as the parties advised that they have agreed to proceed with this matter notwithstanding a pending fresh determination from the carrier. However, the employer suggested that new evidence can always be provided to the carrier along with a request for a review of entitlement and that should always precede the reference to an independent third party. Indeed, in the present case the carrier, in its last denial letter to GAM specifically enumerated the documentation it was requesting in the event GAM wished her claim to be reviewed again.

27This scenario is somewhat troubling from the perspective of the conduct of proceedings before an independent third party. The employer has underscored the value of expedition but also appears to posit (at least theoretically) an infinite series of reviews and appeals to the carrier. The value of expedition is surely undermined if it does not include a reasonable measure of finality. Article 32.5 makes a decision of an independent third party final and binding on the parties, the employee and the carrier. I can only speculate that it is in search of this finality that the parties have agreed to continue with the instant matter notwithstanding a pending further determination from the carrier.

28The parties should contact the Registrar with a view to fixing continuation date(s) in this matter.