CITATION: Metrolinx v. Amalgamated Transit Union et al, 2022 ONSC 4828

DIVISIONAL COURT FILE NO.:: DC-21-692-JR

DATE: 20220823

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Edwards, D.L. Corbett, and O’Brien JJ.

BETWEEN:

METROLINX - GO TRANSIT

Applicant

– and –

AMALGAMATED TRANSIT UNION, LOCAL 1587 AND THE GRIEVANCE SETTLEMENT BOARD

Respondents

F. Cesario and G. Lemoine, for the Applicant

K. Ensslen and N. Abraham, for the Respondent, Amalgamated Transit Union, Local 1587

The Grievance Settlement Board, Unrepresented

HEARD: June 14, 2022 at Toronto by videoconference

REASONS FOR DECISION

O’Brien J.

Overview

[1] This application for judicial review relates to an employer’s practices in contracting out and administering employee sick leave. The employer, Metrolinx – GO Transit, retained a third-party benefits administrator, Oncidium Inc. It required employees to communicate with Oncidium at the first instance of requesting a sick leave. It also required employees to complete certain forms if absent for more than five days and if seeking an accommodation on return to work.

[2] The union, Amalgamated Transit Union, Local 1587, initiated a policy grievance to challenge the employer’s practices as contrary to the bargained terms of the collective agreement. In its submission, the relevant provisions of the collective agreement were aimed at protecting union members’ privacy. The union submitted that the employer’s practices violated the parties’ agreement, were overly intrusive, and were inconsistent with established arbitral jurisprudence.

[3] The Arbitrator of the Grievance Settlement Board (the “Board”) agreed. First, the Arbitrator determined that the employer could not require employees to communicate with Oncidium in the first instance of claiming sick leave and short-term disability benefits. Instead, the Arbitrator applied language in the collective agreement which required the employee to communicate with their supervisor.

[4] Second, the employer could not require employees absent for five or more days to complete a medical form created by Oncidium. According to the Arbitrator, the employer was limited to requiring completion of a medical certificate as defined in the collective agreement.

[5] Third, the Arbitrator found that the form used by Oncidium to collect medical information where an employee sought accommodation on return to work was more intrusive than necessary, contrary to the relevant jurisprudence. Finally, the Arbitrator concluded that it was a breach of the collective agreement in some circumstances for the employer to require employees to pay for the completion of the form used to seek accommodation. Specifically, pursuant to the terms of the collective agreement, the employer was required to pay for the completion of the form if it required an examination of the employee.

[6] The employer brings this application for judicial review of the decision issued by the Board. The employer argued that recourse to a third-party consultant, like Oncidium, is common practice for many employers, and brings with it many advantages, including better protection of confidential health information for workers, and professional claims assessment by persons qualified to undertake that task. Whatever may be thought of the merits of these arguments, this was not the issue before the Arbitrator. It was not the Arbitrator’s task to assess the merits of the employer’s approach to these issues, but rather what the parties had agreed to in the collective agreement in respect to these issues.

[7] There is no dispute that the standard of review for a decision of the Board is reasonableness. The Arbitrator’s conclusions are derived from the terms of the parties’ agreement and are not defeated by arguments respecting the substantive merit of the approach taken by the employer. As further detailed below, I find the Board’s decision to be reasonable.

Requirement to Communicate with Supervisor

[8] The employer submits the Board’s conclusion on the first issue, regarding whether an employee could be required to communicate with Oncidium in the first instance of a sick leave, was unreasonable. It emphasizes that an employer’s right to contract out the administration of its sick leave plan is firmly entrenched in the case law. In the employer’s submission, the reference to “supervisor” in the collective agreement does not amount to a prohibition on the right to retain a third-party administrator. It is simply a practical description of the person to whom employees should provide their medical certificate. Further, in the employer’s submission, the Board constructed a “false dilemma” between employee privacy and contracting out the provision of employee information. Instead, the employer submits, contracting out information-gathering to a third party ensures better protection of employee privacy.

[9] In my view, the Arbitrator’s conclusion that the employer could not require communication with Oncidium was open to her. The Supreme Court of Canada has provided detailed guidance on how courts are required to apply the reasonableness standard. It has emphasized that “reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), at para. 75. The role of the courts is restricted to review; they must refrain from deciding the issue themselves: Vavilov, at para. 83. To that end, a decision is reasonable as long as its reasoning is internally coherent and justified in the context of the relevant factual and legal context.

[10] Here, the Arbitrator found the words in the collective agreement to be “unequivocal.” In her view, the collective agreement clearly provided that, at least in the first instance of a sick leave absence, employees were entitled to provide information to and deal with their own supervisor.

[11] In my view, The Arbitrator’s conclusion was reasonable in the context of the wording of the collective agreement. The collective agreement specifically used the term “Supervisor” several times in the context of the process to deal with an initial sick leave. In those provisions, the “Supervisor” may request an employee to provide a medical certificate. If the employee has been absent for more than five days, he/she shall provide a satisfactory medical certificate to the “Supervisor.” The provisions are set out in their entirety below, with the references to “Supervisor” highlighted:

B6.06 Medical Certificates

(i) When a Supervisor requires verification, the Supervisor may request an employee to provide a medical certificate from a qualified Ontario medical practitioner for absences of five (5) days or less. Such requests will not be made in a discriminatory manner, and provided that such medical certificate satisfies the criteria set out in Article B6.6, $10.00 will be paid by the employer. There will be no payment for a medical certificate that does not meet the requirements outlined in article (iii), nor will there be duplication of payment for the same period of illness.

(ii) The Supervisor may make this request during the absence and prior to the employee’s return. If the employee does not abide by this request to produce the medical certificate, then the employee will not receive sick pay benefits for the absence, but will be allowed to return to work providing there are no further extenuating circumstances.

(iii) The medical certification must, as outlined below, state the following:

(a) date the employee was first seen by physician and confirmation that the employee is under doctor’s care;

(b) prognosis of return to work date and confirmation that employee cannot work;

(c) for return to work, that the employee is now fit to resume his/her full duties.

(v) When an employee is absent for a period of more than five (5) consecutive work days, he/she shall provide his/her Supervisor with a satisfactory medical certificate. Failing this requirement, he/she will not receive sick pay benefits and will not be allowed to return to work. This protects both the individual from harm and GO Transit from any liability due to further complications of the sickness or injury.

The employer may require that the employee submit to a medical examination at the expense of the employer, where for reasons of health, an employee is frequently absent or unable to perform his duties.

(emphasis added)

[12] The Arbitrator relied on the principle of interpretation that all words in a collective agreement are presumed to have meaning and they ought to be given their plain meaning. Here, the term “Supervisor” was expressly used several times. As the Arbitrator noted, this wording was unlike other cases where the language did not refer specifically to communication between an employee and the employee’s supervisor.

[13] The Arbitrator did not decide that the employer was prevented from contracting out the administration of sick leave benefits generally. Instead, she expressly acknowledged at para. 58 of her decision that, in general, there is nothing to prevent an employer from contracting out the information gathering or assessment of medical information. Indeed, it was acknowledged by both parties in this case that the employer was entitled to use Oncidium’s services for the purpose of assessing a request for accommodation, as discussed below. The Arbitrator’s finding instead was restricted to the specific communications at the outset of an employee’s sick leave.

[14] The related case law does not militate a different conclusion. The employer relies on Revera Long Term Care Inc (Stoneridge Manor) v Canadian Union of Public Employees, Local 2564, 2014 58768 (ON LA) (“Revera”). In Revera, the key provision of the collective agreement only required the employee keep the “Employer” advised as to the reason for any absence from work. The use of the term “Employer” is more generic. It more easily permits an interpretation that would include the employer’s benefits administrator than does the use of the more specific term “Supervisor.”

[15] Finally, although there is an argument that disclosure to a third party may better protect an employee’s privacy, the Arbitrator concluded that this was not the method these parties chose. Instead, she found the union bargained for the right to provide limited information (as set out in the defined medical certificate) to the employee’s own supervisor. She stated: “[t]his is an entitlement the Union has negotiated for its members and I find they cannot be compelled to provide information to a third party such as Oncidium….” While this may not be the only way to address an employee’s privacy, given the specific and repeated use of “Supervisor” in the collective agreement, it was reasonable to conclude this is the method chosen by these parties.

Requirement to Use Medical Certificate

[16] The employer also disputes the Arbitrator’s conclusion that it was restricted to using a “medical certificate” as defined in the collective agreement to obtain information when an employee would be absent for more than five days. The employer’s practice, instead, was to require employees to complete a much more comprehensive form entitled Attending Physician Statement – STD/Sick Leave (the “STD/sick leave form”). This form was comprised of three pages: a consent, a series of questions regarding the employee’s absence, and a series of checkboxes inquiring about the employee’s current functional restrictions and limitations.

[17] Article B6.06 of the collective agreement, reproduced in relevant part above, defines “medical certificate.” The term is first used in para. B6.06(i), which deals with absences of five days or less. Under that provision, the supervisor is entitled to request that the employee provide a medical certificate. The contents of the medical certificate are then defined in para. B6.06(iii). Those contents are limited. The employee is to provide only the following: (a) the date they were first seen by a physician and confirmation that they are under a doctor’s care; (b) prognosis of their return-to-work date and confirmation that they cannot work; and (c) when returning to work, confirmation that they are now fit to resume their full duties. The employee is not required to provide details of their medical condition.

[18] The employer submits that the medical certificate required when an employee is absent for more than five consecutive days, as set out in para. B6.06(v), is of a different order. It submits that not only is the context different, since the employee will be away for a longer period, but the requirement in that provision is for a “satisfactory medical certificate.” In its submission, this wording signals a different meaning than the form defined at para. B6.06(iii).

[19] In my view, the Arbitrator’s interpretation of “medical certificate” in para. B6.06(v) was reasonable. The Arbitrator reasoned that the parties had chosen to use the same term, “medical certificate,” in both paragraphs of article B6.06. In her view, article B6.06 did not differentiate between the terms. Paragraph B6.06(v) only required that the medical certificate be “satisfactory,” which she interpreted to mean compliant with the requirements of para. B6.06(iii). She was justified in relying on the principle of contractual interpretation that where the same word is used twice, it is presumed to have the same meaning. As she stated, if the parties had intended to require a more comprehensive document for absences of longer than five days, they could have indicated as much.

[20] The employer submits that the Arbitrator’s decision was not justified in the context of the relevant case law. It relies primarily on Amalgamated Transit Union – Local 1587 v. Ontario (Greater Toronto Transit Authority), 2008 19767 (ON GSB) (“ATU 2008”). This was a 2008 decision between these parties that addressed the same language in a previous collective agreement. However, the narrow question in that case was whether the employer would be required to pay for the completion of a form requiring further medical information after the employee provided the first medical certificate and prior to being permitted to return to work. The specific question of whether the “satisfactory” medical certificate required when an employee was returning to work was different from the defined medical certificate in what is now para. B6.06(iii) was not before him.

[21] In addition, the Arbitrator’s decision is fully consistent with broader principles in the arbitral case law. She relied, for example, on the seminal decision of Hamilton Health Sciences Corp. v. O.N.A., 2007 73923 (ON LA). The arbitrator in that case held at para. 27 that in the absence of a collective agreement provision that says otherwise, an employer seeking to verify sick leave is entitled to know only that the employee is unable to work due to illness or injury, the expected return to work date, and what work the employee can or cannot do. These requirements have been repeated in the arbitral jurisprudence and are not far from the defined requirements of the “medical certificate” in the current case. In other words, it is standard for an employer to be limited to receiving this type of information when an employee is returning to work. The arbitral jurisprudence also recognizes situations in which more information may be required, for example when a medical leave is extended or there is a request for accommodation. But there is no requirement in the arbitral jurisprudence for more information just because an employee has been absent for more than five days.

[22] The employer also submits that the Board’s decision does not reasonably address the question of a return to work that requires accommodation. In its submission, a “satisfactory medical certificate” must require something more because additional information would be required for an accommodation. In my view, the Arbitrator squarely addressed this point. First, there was no dispute that the provision of the collective agreement addressing accommodation requests, article 8.8, required more comprehensive information about the employee’s circumstances. Specifically, article 8.8 requires an employee who cannot fulfill the requirements of their own classification to establish this “through a medical practitioner.” The question here was when article 8.8 was triggered. The Arbitrator accepted the union’s argument that it was triggered during the course of an absence only if an employee was seeking accommodation on return to work. She rejected the employer’s position that article 8.8 authorized it to seek this more comprehensive information at the first instance of a sick leave, when it was not known if accommodation would be required. I do not find any basis to interfere with the Arbitrator’s decision on this point.

Accommodation Form

[23] The employer also contests the Board’s conclusion that the form used when an employee was seeking accommodation (the “Accommodation form”) was more intrusive than necessary. It submits that the Arbitrator erred in finding the inquiry must be tailored to the employee’s own job duties. Further, in its submission, the Arbitrator unreasonably concluded that the Accommodation form required the disclosure of personal information unrelated to the current absence.

[24] I also do not find a basis to interfere in the Arbitrator’s conclusions on this point. With respect to tailoring the inquiry to the employee’s own job duties, the Arbitrator considered the wording of the collective agreement. She found that article 8.8 focused first on returning the employee to their own position. It was only when this option was not available that the parties engaged in a search for alternative positions.

[25] This interpretation is reasonably supported by the wording of article 8.8. Paragraph 8.8(2)(i) first provides that where an employee is temporarily unable to fulfill all the requirements of their own classification, they may be allowed to return to work in their own classification with modified duties and responsibilities. Then, para. 8.8(2)(ii) provides that when an employee is temporarily unable to continue to fulfill the requirements of their own classification, they may be placed in another classification. In other words, read in sequence, these provisions can reasonably be interpreted to suggest that the first inquiry relates only to accommodating the employee in their own classification. Only if that is not possible, the inquiry turns to accommodating in another classification.

[26] The Arbitrator also relied on jurisprudence which calls for employers to take an incremental and tailored approach with respect to the medical information needed to facilitate a return to work. Indeed, this Court has cautioned against unnecessarily requesting sensitive medical information. In Ontario Nurses’ Association v. St. Joseph’s Health Centre(2005), 2005 24239 (ON SCDC), 76 O.R. (3d) 22 (Ont. S.C.J.), which was relied on by the Arbitrator in this case, this Court overturned an arbitrator’s award that required a nurse to provide answers to mental health questions before being allowed to return to work following gynecological surgery. The majority of the Court emphasized at para. 26 that the arbitrator was required to provide a justification “before insisting on… intrusive questions being answered.” Overall, the Court endorsed the weight of arbitral jurisprudence that inquiries must be narrow and tailored. As stated at para. 20, “no broad inquiry as to health is allowed.”

[27] It is important therefore to ensure requests for information are tailored to the specific question in issue. Applying this principle and considering the sequence of provisions in article 8.8(2), it was open for the Arbitrator to conclude that the employer was first only entitled to information about the employee’s current duties.

[28] The Arbitrator was also entitled to find that the Accommodation form, as drafted, failed to focus on the employee’s current absence. The employer did not disagree that the form should focus only on the employee’s current absence. However, its argument in this Court was that the form did so.

[29] Like the STD/Sick Leave form described above, the Accommodation form is three pages. There are some references in it to the employee’s “current” injury or illness. For example, in the first paragraph of the authorization on the first page, the employee authorizes the release of information “related to the illness or injury which is currently impacting on [their] ability to work.”

[30] However, this is one sentence in four paragraphs. Other sentences read more broadly. For instance, the authorization also states that the employee authorizes Oncidium to “provide [their] Employer with a functional case summary which may include information related to medical restrictions and limitations, and modifications necessary for [them] to continue to work.” In this portion of the authorization, there is no specific reference to the current illness.

[31] On the next page, to be completed by the health care practitioner, some of the questions focus on the illness or injury currently impacting the employee’s ability to work. Others venture further, asking, for example about co-morbidities. The Arbitrator found the most significant problem to be with the third page, which provided a checklist for functional restrictions and limitations. This checklist included numerous questions about the employee’s “behavioural/cognitive limitations,” with no caution that answers should relate only to the employee’s current absence from work. The Arbitrator was of the view that “behavioural/cognitive limitations…ought not be made available in all but the clearest circumstances due to their potential to unreasonably stigmatize the employee.”

[32] In sum, there was no clear restriction either in the authorization on the first page or on the third page, limiting the completion of the full check list, including all questions about behavioural cognitive limitations. The Arbitrator found the form to be overly broad, especially in that it asked for the employee’s cognitive behavioural/cognitive limitations, without, as she said, “qualification or limitation of any sort.” The Arbitrator’s reading of the form, which was that these questions would be answered as a matter of course, was available to her. Her overall conclusion that the form was overly broad, both in that it was neither limited to the current absence nor to the employee’s own job duties, was reasonable.

Payment for Accommodation Form

[33] Finally, the employer takes issue with the Arbitrator’s determination that it was required to pay for the Accommodation form in some circumstances. It submits both that her conclusion is inconsistent with ATU 2008 and that she failed to decide the issue.

[34] In my view, the Board’s decision is on all fours with ATU 2008. There, although the arbitrator was addressing a different form, the specific issue before him was whether the employer was required to pay for the completion of the form. The question was whether, when the employer asked for the form to be completed, it triggered the provision in the collective agreement requiring the employer to pay for a medical examination. For convenience, I reproduce that provision, which is found at the end of article B6.06:

The employer may require that the employee submit to a medical examination at the expense of the employer, where for reasons of health, an employee is frequently absent or unable to perform his duties.

[35] The arbitrator in ATU 2008 did not agree that completion of the form was tantamount to requiring that the employee undergo an examination. However, he also noted that on a case-by-case basis, completion of the form could require the attending physician to perform an examination.

[36] The Arbitrator in this case agreed. She found that completion of the Accommodation form alone does not require payment by the employer unless a new medical examination is required for the form to be completed. If no medical examination is required to complete the form, any minimal cost is borne by the employee. However, if a new medical examination is required to complete the form, the employer must pay. Her reasoning is the same as found in ATU 2008.

[37] Further, contrary to the employer’s submission, the Arbitrator did not fail to decide the issue. Her decision simply requires an understanding in each case of whether an examination was needed to complete the form. While this means that the outcome will depend on the individual circumstances of each case, it is not a failure to decide the issue. Presumably the physician involved could easily indicate whether an examination was needed in the circumstances of an individual case to assist in minimizing further disputes.

[38] Overall, the Arbitrator’s conclusions on this point were intelligible and justified. Her decision was consistent with ATU 2008 and did not represent a failure to reach a conclusion. I do not find a basis to interfere in this aspect of her decision.

Disposition

[39] The employer has not demonstrated that the Board’s decision was unreasonable. The application is dismissed.

[40] Pursuant to the agreement between the parties, the employer shall pay costs of $7,500 to the union.

O’Brien J

I agree _______________________________

Edwards J.

I agree _______________________________

D.L. Corbett J.

Released: August 23, 2022

CITATION: Metrolinx v. Amalgamated Transit Union et al, 2022 ONSC 4828

DIVISIONAL COURT FILE NO.:: DC-21-692-JR

DATE: 20220823

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Edwards, D.L. Corbett, and O’Brien JJ.

BETWEEN:

METROLINX - GO TRANSIT

Applicant

– and –

AMALGAMATED TRANSIT UNION, LOCAL 1587 AND THE GRIEVANCE SETTLEMENT BOARD

Respondents

REASONS FOR DECISION

O’Brien J.

Released: August 23, 2022