GSB#2016-1342

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (NC)

Association

• and –

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Christine Davies Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 11, 2017

Decision

1I have been appointed under article 32.2.2 of the collective agreement with respect to a claims review filed by a member of AMAPCEO (hereinafter referred to as “NC”). This decision deals with two preliminary issues. First, whether or not NC should be allowed to testify and/or submit a “Will Say” statement, and second, whether AMAPCEO should be allowed to introduce into evidence two scientific articles.

2Article 32.2.2 reads:

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. 2014 CanLII 48012 (ON GSB)

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.

32.6 Leaves of absence with no loss of pay and no loss of credits shall be granted to a member of the Association who participates in meetings of the Joint Benefits Committee provided that no more than three (3) employees at one time shall be permitted such leave. Leaves of absence granted under this Article shall also include reasonable travel time.

3NC went off work on May 21, 2014 following an accident. Her claim for long term income protection (LTIP) benefits with respect to the “own occupation” period of November 22, 2014 to November 21, 2016, was denied by the insurance carrier (“Great West”) on the grounds that she was not totally disabled during that time. NC complained to the Joint Benefits Committee (“Committee”). Her complaint was not resolved by consensus of the Committee and was referred to me as the independent third party under article 32.2.2.2.

4ISSUE 1: Whether NC should be allowed to provide viva voce testimony, and/or submit a “Will Say” statement.

The Association’s position is that I should receive the “Will Say” statement of the complainant, and in addition allow NC to supplement it with brief viva voce testimony. Counsel agreed that the employer should be entitled to cross-examine NC. Employer counsel takes the position that I should rely only on the information Great West and the Committee had before them, and opposed the receipt of a “Will Say” statement or testimony from NC.

5Voluminous material including five binders have been filed with me. There is no dispute that this material constitutes all of the information that was before Great West and the Committee. The Association had provided to the employer in advance of the instant hearing, the “Will Say” statement it wishes to file. A copy was also provided to me.

6Employer’s Submissions

Employer counsel’s objection is essentially grounded upon the provisions of the collective agreement, and not on the basis of relevance. He submitted that article 32 does not contemplate “a full blown de novo hearing” before the ITP. That is exactly what the Association is seeking. Article 32.2.2.2 states that an ITP would “join” the Committee. The ITP, therefore, is to be a member of the committee who would be the “tie-breaker”. It is contemplated that this tie breaker role should be carried out “in an expeditious and informal manner”. Allowing NC to provide new information, through testimony or “a will say” statement would be inconsistent with that intent. Counsel stated that NC had a period of some two years to submit to Great West, any information in support of her claim.

7Counsel noted that the proposed “Will Say” statement in any event indicates that NC wishes to testify about symptoms and feelings she experienced up to the present time. He pointed out that NC’s claim was only with respect to a specific 2 year period which ended on November 21, 2016. It is not a claim for ongoing entitlement. The only issue is whether or not NC was totally disabled during that two year period. Therefore information relating to the period after that would be not of any assistance. It would only unnecessarily delay the resolution of this matter.

8Employer counsel acknowledged that article 32.2.2.7 confers upon the ITP, the powers of a Vice-Chair of the Grievance Settlement Board, and that a Vice-Chair has broad discretion to decide what processes to use and what evidence to receive. He submitted that having regard to the expeditious and informal resolution contemplated by the collective agreement, I should exercise that discretion to disallow the proposed evidence.

9Counsel submitted that I have all of the information needed to determine the issue before me, and urged me to make a decision based on that complete record. To do otherwise would be to allow NC to add to the information Great West and the Committee had in an attempt to bolster the claim. In the alternative, counsel submitted that if I allow testimony and/or the “Will Say” statement, no information outside the two year claim period should be accepted.

Association’s submissions

10Referring to medical documents, counsel pointed out that the symptoms NC experienced following the accident were post-concussion syndrome, headaches, pain, and cognitive difficulties. Due to their very nature, these are not objectively measurable. They are highly subjective and medical professionals have to largely rely on self-reporting. Therefore, in order to decide whether NC was totally disabled, the decision-maker needs to have an understanding of how NC felt in the period following the injury. This would require findings on NC’s credibility, which can only be done by hearing directly from her.

11Association counsel briefly reviewed some of the conclusions reached by medical professionals who treated NC, treatment received, and the tests she was subjected to. She submitted that while I have all of the paper information relating to those, I should in addition hear from NC about the impact all of that had on her ability to work. NC would be testifying that doing the medical tests by itself was very exhausting and difficult for her.

12Counsel submitted that the proposed “Will Say” is a summary of the information NC wishes to be considered by me. It touches on her employment background; her duties and responsibilities; the head injury she suffered and how it impacted her ability to work and carry out even her daily activities at home; the financial impact resulting from the injury; the mental stress she experienced as a young woman forced to stay home; and how she herself initiated a return to work.

13Counsel submitted that in this proceeding the Association was offering up to date information going beyond the 2 year claim period, not with the intention of claiming benefits for NC beyond the 2 year period. It is offered only to show that the evidence in the post claim period is consistent with NC’s claim that she was totally disabled during the claim period. It would show that her claim is credible.

14Counsel noted the employer’s acknowledgment that the collective agreement authorizes the receipt of a claimant’s testimony and/or a will say statement at the ITP’s discretion. In exercising the discretion, that article requires the ITP to have regard to three factors, (1) the nature of the dispute, (2) the need for a fair process of dispute resolution; and (3) the desirability of ensuring the resolution of the dispute in an expeditious and informal manner. Counsel submitted that while AMAPCEO does not seek to admit evidence from claimants in every claim review proceeding before ITP’s, in considering the three factors, this is an appropriate case to do so. She requested that I exercise the discretion in favour of admitting such evidence. If so allowed, NC would adopt the “Will Say” statement as true under oath, and supplement that information with brief viva voce evidence.

15Employer’s Reply

Counsel reiterated that if NC had crucial information to offer, she could and should have submitted that to Great-West and the Committee. Having chosen not to do so, she should not be allowed to offer this “crucial” information for the first time at the very end of the process before the ITP.

16Employer counsel reiterated that NC should not be allowed to add to the information put to the Committee, claiming that information to be crucial. There is no suggestion that the information she now states is crucial, was not available at the time she filed her claim with Great-West, or during the deliberations of the Committee. The only information that may not have been available would be that relating to the period after the two year claim period. That information is irrelevant in any event. He submitted that the attempt here is to relitigate the matter before the ITP because the Association and NC are unhappy with the outcome of the process agreed to in the collective agreement.

17Employer counsel referred to the Association’s argument that NC should be allowed to testify because it would assist me to assess NC’s credibility. He submitted that none of the medical professionals’ reports in the five voluminous binders of documents have questioned NC’s credibility. Rather, they have reached different conclusions based on their expertise and experience.

18Conclusion on Issue 1

The parties submitted very few decisions of the Board, which indicates that there have not been many proceedings before the Board relating to benefit claim review under article 32.2. In a decision dated October 27, 2010, Re Ms. R.G. (AMAPCEO) and the Ministry of Community and Social Services, (Briggs) (No Board File number in the decision) a written statement authored by Ms. R.G. was included in the documents provided to the ITP on consent, with the parties reserving the right to take a contrary position in the future. In that proceeding the Association submitted, inter alia, that if the Board believes Ms. R.G.’s written statement the claim must be allowed. The employer disagreed, and contended that the test is whether a claimant is totally disabled in accordance with the definition of that term in the policy and the provisions of the collective agreement, and not on the basis of how Ms. R.G. views her abilities. The Board at pg. 29 wrote:

The Association urged that if I believe the claimant’s written statement I must uphold her claim of total disability. While that assertion might have initial attraction, the claimant’s view of how her condition affects her ability to work is not the test. The determination as to whether an individual is wholly and totally disabled is far more complex. That is not to say that the claimant’s view is disregarded. Indeed, her statement was studied, given weight and considered along with other documents.

19In a preliminary decision dated July 3, 2014, in Re GAM, (AMAPCEO) and Ministry of Government Services, 2013-1965 (Herlich), the Board rejected the employer’s submission that there is a broad general and absolute prohibition on the receipt of oral evidence in all cases referred to an ITP under article 32.2. At para. 21, Mr. Herlich concluded:

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.

20However, in that case, before determining how that discretionary authority ought to be exercised having regard to “any conflicts between the collective agreement goals of fairness and expedition in these proceedings”, the Board directed the Association to prepare and provide to the employer in advance of the next hearing date, “a detailed statement outlining the evidence it expects GAM would give if she were to testify in these proceeding” and to attempt to agree as to “the use for which it ought to be put, and the need, if any, for oral testimony”.

21As Mr. Herlich observed in Re GAM (supra) at paragraph 20, article 32.2.2.7 not only confers on an ITP, all of the statutory powers of a Vice-Chair of the GSB, including the discretion to adopt such procedures as the ITP considers appropriate, it explicitly states that in exercising that discretion the ITP is to consider three criteria. They are, the circumstances and nature of the dispute, the need for a fair hearing, and the desirability of expedition and informality.

22In the present proceeding, the employer stressed on the criterion of expedition and informality, while the Association emphasised the nature of the claim and the need for a fair hearing. In my role as ITP, I have the task of using a process which best reconciles the conflicting interests emphasized by the parties.

23The Association’s primary justification for hearing viva voce testimony from the claimant, is the fact that, unlike in cases of physical injury, due to the very nature of NC’s illness, its impact on her ability to work is not objectively measurable, as in cases of physical injury. It was argued that, therefore, the ITP needs to hear from NC about how she felt. I disagree that the fact that the impact of an illness is not objectively measurable is by itself justification for receiving viva voce evidence or even a “Will Say” statement. First, it is fair for an ITP to assume that the claimant would have self-reported to the medical experts how he/she felt, and that those experts would have taken into account that self-reporting in coming to their conclusions. Second, if I accept the Association’s reasoning, ITP’s would receive testimony from claimants routinely because often the inability to perform work in claims resulting from physical injury are also based on self-reporting about the degree of pain resulting from the physical injury. The degree of pain is not often objectively measurable by tests. To follow this path would be to disregard the expedition and informality contemplated by the collective agreement.

24In the present case, I have had the opportunity to review NC’s proposed “Will Say” statement. Having regard to its contents, I will receive it subject to conditions set out below. There would be no need to call NC to adopt the “Will Say” under oath. I will accept counsel’s statement that it was authored by NC and that it represents the testimony she would have adduced if allowed.

25The acceptance of the “Will Say” is subject to the following conditions.

1. The “Will Say” statement shall be revised to delete all information that does not relate to the two year claim period. Such information would be of no assistance in determining whether or not NC was totally disabled during the claim period, which is the issue in dispute.

2. Paragraphs 39 and 40 of the “Will Say” shall also be deleted. They relate to the quantum of the claim. If the claim is upheld, I would be referring the matter back to the parties to attempt to agree upon NC’s remedial entitlement. It need not be part of the proceeding at this stage.

3. The employer, if it so wishes, would be allowed to require that NC present herself for cross-examination on the content of the “Will Say” statement.

26The Association is directed to revise the “Will Say” statement in compliance with the foregoing, and to provide a copy to employer counsel at least five days prior to the next scheduled hearing date or other mutually agreed to date. Any unresolved disagreement about compliance with the revisions directed herein will be dealt with at the commencement of the hearing.

27Counsel for the Association stated that the “Will Say” sets out the information NC wished to put before me for consideration. However, other than assure that the proposed additional viva voce testimony by NC would be brief, there was no elaboration of what that evidence would be, and why that was necessary in addition to the “Will Say”. Given the expedition and informality contemplated by the collective agreement, a party requesting that viva voce evidence be allowed in these proceedings must provide compelling reasons why that is justified. That has not been done here. No viva voce testimony will be received from NC besides any cross-examination and re-examination on the Will say statement.

ISSUE 2 Whether or not the Association should be allowed to introduce into evidence two scientific articles

28The two articles in question had been co-authored by a neurologist who treated NC. In one of his reports which form part of NC’s documentary record, the neurologist sets out citations to those articles. There is no discussion in the medical reports about the content of the articles or how they relate to NC’s health issues. Copies of the articles had not been provided to Great-West or the Committee. While stating that this case will not turn on the content of the articles, Association counsel submitted that since the neurologist who had treated NC has referred to the articles he had co-authored in a report relating to NC’s health issues, they may assist me to better appreciate the neurologist’s opinions on NC’s health issues.

29I am convinced that the articles ought not be received. It is highly unlikely, and it is not suggested, that either Great-West or the Committee researched the articles because citations were set out in one of the reports. More importantly, merely filing the articles in evidence would not be of any assistance to me. Someone with some knowledge and expertise on the subject must interpret their content and explain how they relate to NC’s situation. The two lawyers attempting to do so, or my attempting to do so myself would be an utterly useless exercise. Only the neurologist would be able to speak to the complex subject matter in the articles, and how they apply to NC. The Association did not suggest that it be allowed to call the neurologist. If it did, the Board would have declined, because that would completely go against the expedition and informality of these proceedings contemplated by the collective agreement. Therefore the two articles will not be received.

30I remain seized. The proceeding will continue on the dates scheduled.