Alberta Union of Provincial Employees v Alberta Health Services, 2016 ABQB 46

Court of Queen ’ s Bench of Alberta Citation: Alberta Union of Provincial Employees v Alberta Health Services, 2016 ABQB 46 Date: 20160122 Docket: 1501 04143 Registry: Calgary Between: Alberta Union of Provincial Employees Applicant - and - Alberta Health Services Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ Background [ 1 ] Gillian Rennie was a licenced practical nurse. During her brief career she was employed primarily by Alberta Health Services (“AHS” or the “Employer”).

She was a member of the Alberta Union of Provincial Employees (“AUPE” or the “Union”). [ 2 ] Ms. Rennie’s life was a troubled one. Her work history with AHS featured repeated periods of sick leave, injuries and reports of abuse. She also suffered from drug and alcohol dependency. [ 3 ] In late 2009, Ms. Rennie applied for short term disability, as she was entitled to do under her terms of employment with

AHS. Disability benefits were provided by AHS, through Great West Life (“GWL”). That company provided administration only service to AHS in respect of short term disability. Claims beyond 2 years were not self-insured by AHS, but were instead insured by GWL. [ 4 ] Ms. Rennie’s disability claim was initially honored by GWL. Between December 8, 2009 and May 24, 2010, she received approximately $9,000. During the claim review process, however, GWL learned that Ms. Rennie had taken employment as an LPN with another employer while collecting disability benefits.

It sent a letter dated May 19, 2010 advising that based on the information on file, Ms. Rennie’s “condition” was not of sufficient severity to prevent her from performing the duties of her occupation. The letter stated that the medical information on file provided a primary diagnosis of recurrent abdominal pain and nausea. It went on to note that Ms. Rennie had recently traveled to Las Vegas for a bachelorette party, but could not remember the events of the trip due to alcohol and drug consumption; that Ms.

Rennie was a user of drugs and alcohol in Calgary; and that she was then employed by CBI Home Health Care (“CBI”) as an LPN. [ 5 ] The May 19, 2010 letter went on to describe Ms. Rennie’s appeal options. The first was to appeal to GWL with additional evidence. The information required was both medical (ie.

Physicians notes and reports) and non-medical (details of employment with CBI, Workers’ Compensation Board information regarding an injury claim during her employment at CBI, and “any current police records, if applicable”). [ 6 ] The second appeal option was to appeal the decision to GWL based on the “existing information on file”. The letter went on to state that: “All appeals must be received by May 9, 2012.” [ 7 ] For the following year, it appears that Ms. Rennie (who by then had married and changed her name to Gillian Brodrick) had a number of telephone conversations with GWL.

In November 2010, she was advised, by letter, that her disability claim had been terminated and that she would not be eligible for further benefits without providing the information requested earlier by GWL in respect of her alternate employer. [ 8 ] On March 14, 2011, a more detailed letter was sent following a telephone conversation with Ms. Rennie. In it, GWL made it clear that it had concluded that Ms. Rennie had received short term disability during a time period when she was working with another employer.

It demanded its money back, and went on to state that: “You are currently not eligible for further consideration of disability benefits as you were not eligible for Short Term Disability benefits (as outlined above) and you have not returned to active employment to qualify for a new claim.” [ 9 ] The March 14, 2011 letter did not mention any right of appeal, nor did it even refer to the May 19, 2010 letter in which the claim was initially denied. Unlike previous 2010 correspondence, it was copied to AUPE. [ 10 ] In August, 2011, Ms.

Rennie died. [ 11 ] On behalf of her estate, the Union filed a letter dated December 21, 2011, in respect of what it described as “the continued appeal” of the late Gillian Rennie. The letter took great umbrage with the conduct of GWL, suggesting that GWL was both reckless and negligent in ending benefits to Ms. Rennie, given its knowledge of her longstanding medical issues (including a brain injury). The letter attached information regarding treatment received by Ms. Rennie for alcohol and drug abuse during 2011. On behalf of Ms.

Rennie’s estate, the Union sought disability benefits (including life insurance) for the period of December 8, 2010 to August 21, 2011. [ 12 ] By letter dated January 20, 2012, GWL responded that the additional information could not be taken into consideration as Ms. Rennie was not eligible for coverage during the time period in question (December 8, 2010 to August 21, 2011). The reason provided was that Ms. Rennie had taken an unpaid leave of absence from work in May, 2010, and had waived her right to pay premiums beyond June 1, 2010.

Thus, she was not eligible to apply for new disability benefits, beyond those that had been provided earlier, and for which reimbursement had been sought by GWL. (This reason was also contained in GWL’s letter of March 14, 2011 to Ms. Rennie). [ 13 ] In a Grievance Form dated February 2, 2012, the Union grieved GWL’s refusal of short and long term benefits. It sought payment of benefits, as well as damages and declaratory relief. The Arbitration [ 14 ]

Article 37.05(

b) of the Collective Agreement sets out deadlines for submission of grievances. It requires that an individual grievance be submitted within 15 days of the date the employee first became aware of, or reasonably should have become aware of, the occurrence of the act causing the grievance. [ 15 ] At an early stage in the grievance process, the Employer reserved the right to argue that the grievance was filed too late to be properly arbitrated. The parties later agreed to have that argument considered as a preliminary issue by the Arbitrator, Mr. David Tettensor.

An Agreed Statement of Facts was presented and arguments received. [ 16 ] By decision dated December 5, 2014, the Arbitrator found that the grievance had been filed too late. [ 17 ] He held that the operative date for the grievance period to commence to run was, at the earliest, on May 19, 2010, when the claim was rejected, (subject to appeal) and at the latest March 14, 2011, when the disability claim was terminated and the employee was advised that no new claim could be considered, as she had not returned to active employment. [ 18 ] The Arbitrator found that it was on the latter date that the issue “crystalized” for the purpose of exercising a grievance right under the Collective Agreement.

The Positions of the Parties [19] The parties agree that the applicable standard of review in this case is that of reasonableness. They disagree on whether theArbitrator met that standard. [20] The Union argues that he did not. It contends that the Arbitrator made several mistakes. [21] First, it is argued that the act giving rise to the grievance in this case was not the denial of benefits to Ms. Rennie in 2010 and2011, but rather the January, 2012, decision by GWL in which it dismissed the Union’s appeal of Ms. Rennie’s claim.

The Union saysthat it was only at this time that an arbitral decision existed, and it was only then that the time period for filing a grievance commenced torun. [22] Second, the Union argues that the Arbitrator’s characterization of the March 14, 2011 letter as “crystalizing” the issue wasunreasonable. It says that the letter was substantively no different than earlier correspondence, which contained similar messages.

Theresult is that any of those letters could be said to crystalize the issue, leading to the impractical conclusion that each could, and should,have been grieved. [23] Third, the Union argues that the decision to impose retrospectively a tight deadline for a grievance was unfair andunreasonable, given that the Employer’s agent (GWL) advised Ms. Rennie that she had two years in which to appeal.

In support of thatargument, the Union says that the Employer is estopped from relying on the terms of the Collective Agreement. [24] The Employer argued that the Arbitrator’s decision was within the bounds of reasonableness and that it is the duty of theCourt to defer to the Arbitrator’s findings. [25] It says that the assured’s remedy of an appeal (or an action against GWL) is different in form and substance from the Union’sremedy of grieving the decision under the Collective Agreement.

The two remedies operate independently, making it logical for them tobe separately pursued. [26] The Employer argues that “the act causing the grievance” here (as that phrase appears in the Collective Agreement) was thedenial of benefits by GWL – not GWL’s rejection of the Union’s appeal of that denial. [27] The Employer also argues that there is no internal inconsistency in the Arbitrator’s selection of March 14, 2011 as the“crystalizing” denial of benefits, versus earlier rejections.

It says that the Arbitrator found that the time for grieving could havecommenced as early as May 19, 2010 or as late as March 14, 2011, and then went on to find that in either case, the grievance was filedtoo late. [28] Regarding the issue of estoppel, the Employer contends that the argument ought to have been made before the Arbitrator (butwas not). It also contends that the Union could have filed the grievance in a timely manner, and that the Union was not at all misled as tothe remedies available.

Findings [29] Judicial review of decisions by expert tribunals (such as the Arbitrator in this case) on matters within their expertise (such asthe Collective Agreement) attract a standard of review of reasonableness. Both parties agreed with that, and presented argumentsaccordingly. [30] In the seminal case of Dunsmuir, the Supreme Court of Canada described the reasonableness standard as follows: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the processof articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within arange of possible, acceptable outcomes which are defensible in respect to the facts and the law.

The standard requires not only a “somewhat probing examination”, but the outcome must also be one acceptable on the evidence and thelaw. [Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1SCR 190 para 47] [31] The judiciary is steeped in a tradition of making findings of fact from conflicting documentary evidence and testimony, andpronouncing principles of law after sorting and sifting through diverse arguments, sometimes relying on different and conflicting lines ofprecedent.

It is second nature to dive into an assessment of the facts of a case against existing case authority and statutes and to makefindings as to the correct legal result. Given this tradition, judicial deference to expert tribunals that are tasked with the same duties maybe much easier to expound upon than to implement. [32] In this case, the Arbitrator was the beneficiary of able submissions, on behalf of sophisticated litigants.

A number ofreasonable arguments could be, and were, advanced and a number of reasonable outcomes were available. [33] The Arbitrator could reasonably have found that in the circumstances of this case the 15 day grievance period should start torun only after the 2 year period for appeal of the decision to GWL had run its course.

He could reasonably have held that to require agrievance to be filed prior to the appeal having run its course would tend to invite inefficiency of process and inconsistency of result.This is essentially the argument advanced by AUPE in this judicial review. [34] The Arbitrator could also have reasonably found that the act giving rise to the grievance was the denial of disability benefits

in May 2010. At that time, it was incumbent on her, presumably with the support of the Union, to file a grievance if she wished to rely onher collectively bargained rights. That could have been pursued independently or adjourned pending appeal to GWL, depending on herwishes and strategic imperative.

Multiple remedies are not unusual under statutory or collectively-bargained dispute resolution processes,and it would not be unreasonable to find that the act giving rise to a right of grievance, for the purpose of a remedy within the CollectiveAgreement, was the denial of benefits, as opposed to the eventual decision to reject the Union’s attempted appeal of that decision onbehalf of Ms. Rennie’s estate. [35] The Arbitrator decided that another reasonable (and more lenient) date to use was March 14, 2011, when the last of a series ofletters to Ms.

Rennie unequivocally stated that her benefits had been terminated, that she was not entitled to pursue a new claim given heremployment status, and when the record clearly showed that her Union had been apprised of the decision. He found that the operativedate would therefore be May 1, 2010 at the earliest and March 14, 2011 at the latest. In either case, the claim was out of time. [36] In my view, the decision of the Arbitrator was within the bounds of reasonable outcomes. The process utilized wasprocedurally sound, and in fact agreed to by the parties.

The Arbitrator fairly summarized the facts and arguments before him, andexplained why he considered the grievance to have been commenced out of time. He chose a time frame within which he considered theissue to have been clearly crystalized and the result communicated to the Employee and the Union. The Arbitrator’s decision istransparent, intelligible and justified. [37] Whether it is the decision this Court would have made is irrelevant. The decision is not mine. It is the Arbitrator’s and I willnot interfere with it simply because the result may not accord with my own views.

That is what deference means and what deferencerequires. [38] In closing, I will also comment briefly on two arguments advanced by the Applicant that do not relate directly to thereasonableness of the decision, but more to its fairness: [39] The first argument was that the Employer was estopped from challenging the timeliness of the grievance, as GWL (its agent)led Ms.

Rennie to believe that she had 2 years to appeal the decision, and implicitly, an additional time period following denial of theappeal, to file a grievance. [40] The initial letter denying benefits (May 19, 2010) could and in my view should have been clearer. It would have beenpreferable if GWL had stated that in addition to appealing the denial to GWL, Ms. Rennie had the right to contact her Union for adviceregarding remedies, if any, under the Collective Agreement. However, there was no similar need to do so in March of 2011, when theUnion itself was placed on notice of the denial of benefits.

At that time, the Union was in a position to advise Ms. Rennie to file agrievance in accordance with the Collective Agreement.

It failed to do so. [41] Leaving aside the question of whether the estoppel argument ought properly to have been made to the Arbitrator, rather thanon judicial review, in the circumstances I do not consider that either the Employee or the Union were unfairly misled regarding the needto file a grievance in a timely manner, if that was the remedy that they sought to pursue. [42] The second fairness argument made was that the decision was unfair because it was not in accordance with past practice – inparticular the Davin case (Alberta Union of Provincial Employees v Alberta Health Services, (AB GAA), in which agrievance was arbitrated following denial of an appeal by GWL in similar circumstances.

This may well have happened in Davin, but itwas not the only reasonable process available; hence the need for the Union to protect its members by counselling them to take a cautiousapproach in abiding by the collectively bargained grievance deadlines. [43] The application is dismissed. Dated at Calgary, Alberta this 22nd day of January, 2016. R.A. Neufeld J.C.Q.B.A. Appearances: Micah J. Field for the Applicant

Jacqueline LaViolette For the Respondent