DATE: 2003-04-14

DOCKET: C38284

COURT OF APPEAL FOR ONTARIO

RE: Mona Cicciarella (Plaintiff (Respondent)) – and – Clarica Life Insurance Company and Toronto Transit Commission (Defendants (Appellant – Toronto Transit Commission)

BEFORE: ABELLA, LASKIN AND MOLDAVER JJ.A.

COUNSEL: Stephen F. Gleave and Glenn P. Christie, for the appellant (Toronto Transit Commission) S. Wayne Morris and D. Deravi, for the respondent

HEARD: March 26, 2003

On appeal from the order of Justice E. Loukidelis dated May 13, 2002.

E N D O R S E M E N T

Released Orally: March 26, 2003

[1] We are of the view that the motions judge erred in concluding that the terms in the collective agreement dealing with the provision of long-term disability benefits were within Brown & Beatty’s third category. The language of the collective agreement itself and of the Letter of Understanding between the Union and the TTC make it clear that the benefits plan is to be incorporated into the collective agreement.

[2] Nothing in the ASO agreement contradicts this clear intention. The collective agreement required the TTC to pay the benefits to their employees, to fund the plan, to comply with the terms of the plan as incorporated into the collective agreement and to submit differences over entitlement to benefits to the arbitration process.

[1] Accordingly, the appeal is allowed, the order of Loukidelis J. is set aside, and the action against the TTC is dismissed.

[2] The TTC is entitled to its costs on the appeal fixed on a partial indemnity basis in the amount of $5,000 inclusive of disbursements and GST. We agree with the submissions of the TTC that there should be no costs of the motion.

“R. S. Abella J.A.”

“John Laskin J.A.”

“M. J. Moldaver J.A.”