GSB# 2021-0271; 2021-0439

UNION# 2021-0999-0015; 2021-0999-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

James Craig Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

HEARING CONFERENCE CALL

July 20, 2022; October 11, 2023; July 11, 2024

Decision

1I have two Union grievances before me that are identically worded. The grievance filed under the Unified Collective Agreement is dated April 9, 2021, and the grievance filed under the Corrections Collective Agreement is dated April 28, 2021. A reference in this decision to the “Union grievance” includes both grievances. The statement of grievance reads as follows:

The Union grieves that the Employer has violated the Collective Agreement Articles 2 (“Management Rights”), 3 (“No Discrimination/ Employment Equity”), and 39 (“Supplementary Health and Hospital Insurance”), and any other applicable Articles, and any other applicable legislation as well as Memorandum of Settlement dated December 15, 2009, by failing to provide insured benefits that have been contracted for. Specifically, the Employer has failed to provide coverage for reimbursement of the cost of diagnostic procedures.

The settlement desired is set out as follows:

1. A declaration that the Employer breached Article 39;

2. An order that the Employer provide coverage for reimbursement of one hundred percent (100%) of the cost of diagnostic procedures;

3. An order to make whole any employee negatively affected; and

4. Any other remedy deemed appropriate by the Arbitrator.

2The essence of the grievance is a claim that the Employer contravened the Collective Agreement and a Memorandum of Settlement dated December 15, 2019 (the “2009 MOS”) by not providing insured benefits contracted for, namely by not providing coverage for the cost of diagnostic procedures.

3The Employer has made two motions that request the dismissal of the Union grievance. In its first motion it takes the position that the Union has failed to establish a prima facie case for a breach of the Collective Agreement. The essence of the Employer’s position on its second motion is that I do not have the jurisdiction to provide the remedy sought by the Union because the parties have agreed that the real subject matter of the grievance, namely the denial of four individual claims, are to be addressed by the Claims Review Subcommittee, a subcommittee of the Joint Insurance Benefits Review Committee (“JIBRC”) as set out in Appendix 4 of the Collective Agreement.

4The Union and the Employer each filed a book of documents. Since no oral evidence was called on the motions, the material in the books of documents provided the factual context for dealing with the Employer motions. Some of the materials included in the books of documents are as follows. There is the Union grievance as set out above which, among other things, seeks a declaration for the violation of the Collective Agreement. There are two letters of particulars provided by Union counsel, one dated July 16, 2022, and a second one dated September 30, 2022. In the first letter, the Union indicated at paragraph 2 that, …“Some OPSEU members who have had diagnostic procedures used to obtain a diagnosis, which have been recommended by a doctor, which are not covered by a government plan (e.g. OHIP), have had their claims for reimbursement denied.” At paragraph 4, after noting that it was aware of a handful of instances where members have had reimbursement claims for medically necessary diagnostic procedures denied, the Union set out four examples. The examples related to a hearing test, an MRI, an ERA test and a Covid-19 anti-body test. The remedies sought as set out in paragraph 5 were orders directing the Employer to adhere to the 2009 MOS and directing the Employer to reimburse the four members in its examples for out of pocket expenses related to the diagnostic procedures. I was advised that the denial of reimbursement claims of the four OPSEU members had not yet been referred to the Claims Review Subcommittee for determination.

5The material provided included article 39 of the Collective Agreement, which contains the Supplementary Health & Hospital Plan (“SH&H Plan”) and the Liberalization List dated May 1, 2003