) ) TIMMINS v. DISTRICT HOSPITAL, 2013 ONSC 6002

CITATION : Timmins and District Hospital v. Ontario Nurses’ Association, 2013 ONSC 6002 DIVISIONAL COURT FILE NO.: 596/12 DATE: 20130923 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT PARDU, HIMEL AND RAMSAY JJ. BETWEEN: ) ) TIMMINS AND DISTRICT HOSPITAL Applicant – and – ONTARIO NURSES’ ASSOCIATION, AND WILLIAM A. MARCOTTE Respondents )) )) )) )) ))) Richard J. Nixon and Karen R. Bock , for the Applicant Kate A. Hughes and Danielle C.

Bisnar , for the Respondents ) ) ) HEARD at Toronto: September 23, 2013 pardu j. (orally) [ 1 ] The Timmins and District Hospital bring this application for judicial review of the decision of an arbitrator settling the amount of long-term disability payments owing to Tarja Bouchard under the Hospital of Ontario Disability Insurance Plan, 1980 (“HOODIP 1980”). The hospital submits that the disability benefits should be reduced by an amount equal to the amount Ms.

Bouchard would receive as a retirement disability pension if she terminated her employment. [ 2 ] The HOODIP long-term disability plan provides that: The amount of disability payments which are available to you under any other plan towards which your employer contributes, such as Workmens’ Compensation, Canada Pension Plan (primary benefits) or your employer’s pension plan are to be deducted from the LTD payments. [emphasis added] [ 3 ] Disabled employees like Ms. Bouchard also have benefits provided by a pension plan (“HOOPP”): (

i) She can elect to remain an employee. If she does so, both her own and her employer’s contributions to her pension plan are waived and she continues to accrue pension entitlements but she does not receive the pension until she retires; (ii) She can elect to terminate her employment and take a disability pension. If she does so, she will not accrue further pension entitlements. [ 4 ] Importantly, for Ms.

Bouchard, if she terminated her employment, she would lose coverage for medications and other health care benefits amounting at times to $4,000 per month for chemotherapy and $1,700 every three months for medication. [ 5 ] Ms. Bouchard chose not to terminate her employment and selected the first option. The hospital takes the position that

because she could have terminated her employment, the retirement disability pension was “available” to her and $1,035 should thereforebe deducted from her monthly long-term disability payments. [6] The arbitrator disagreed and concluded: In applying the above approach to the matter at hand, this is not a circumstance where the grievor simply chose not to avail herself of herHOOPP pension, or, where she seeks a form of “double-recovery” Re Lacoste, supra. Rather, she exercised an option to her under herHOOPP for free accrual of her pension contributions and not to receive an HOOPP pension.

By continuing her employment status, thegrievor is able to avail herself of health benefits of financial significance, chemotherapy costs of $4,000 per month and medicationscosting $1,700 every three months. Had she elected to receive her pension of $1,035 approximately per month, she would no longer beable to avail herself of the health benefits she is eligible for under the free accrual option. [7] The

interpretation of the language of this collective agreement falls squarely within the expertise of the labour arbitrator andthe standard of review is reasonableness. The fact that a court might be called upon to interpret a similar expression in an insurance lawcontext does not make this interpretive issue in relation to a collective agreement a matter of general legal importance. [8] In MAHCP v.

Nor-Man Regional Health Authority Inc., 2011 SCC 59 , [2011] 3 S.C.R. 616 at paras. 45 and 51, theCourt observed: Labour arbitrators are authorized by their broad statutory and contractual mandates and well equipped by their expertise to adapt thelegal and equitable doctrines they find relevant within the contained sphere of arbitral creativity.

To this end, they may properly developdoctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes ofthe statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of thegrievances of which they are seized. Reviewing Courts must remain alive to the distinctive features of the collective bargaining relationship, and reserve to arbitrators theright to craft labour specific remedial doctrines.

Within this domain, arbitral awards command judicial deference. [9] Here, the arbitrator’s decision was logically justified, transparent and intelligible and “falls within a range of possible,acceptable outcomes which are defensible in respect of the facts and law”. (See Dunsmuir v. New Brunswick 2008 SCC 9 ,[2008] 1 S.C.R. 190 at para. 47). [10] The arbitrator’s application of principles of contractual

interpretation was reasonable. [11] Here, the arbitrator’s decision was consistent with the decision of another arbitrator confronted with the same problem.(Cambridge Memorial Hospital v. ONA (2011) 108 C.L.A.S. 246 (Gray)). [12] As noted in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd., 2013 SCC34 , [2013] S.C.J. No. 34 at para. 78: Respect for prior arbitral decisions is not simply a nicety to be observed when convenient.

On the contrary – where arbitral consensusexists, it raises a presumption – for the parties, labour arbitrators and the courts that subsequent arbitral decisions will follow thoseprecedents. [13] Both arbitrators concluded that a disability pension was not “available” to the employee where it could only be obtained ifhe/she terminated his/her employment and where it meant giving up health care benefits of significant value. [14] There was no issue of double recovery here. Ms.

Bouchard receives no more than seventy percent of her income in the formof long-term disability benefits and the Canada Pension Plan Disability Pension (agreed to be deducted) precisely the benefit provided bythe collective agreement. [15] This is not a case where an employee is entitled without cost or change of status to apply for a benefit and has refrained fromdoing so. There was an ample factual and legal basis to support the arbitrator’s conclusions. [16] Accordingly, the application is dismissed.

COSTS [17] I have endorsed the back of the Application Record, “This application is dismissed for reasons delivered orally. Style of causeamended to substitute Timmins and District Hospital as applicant and to delete reference to Local 010 in the name of the Respondent. Costs to the respondent fixed at $10,000.”

PARDU J. HIMEL J. RAMSAY J. Date of Reasons for Judgment: September 23, 2013 Date of Release: September 26, 2013 CITATION : Timmins and District Hospital v. Ontario Nurses’ Association, 2013 ONSC 6002 DIVISIONAL COURT FILE NO.: 596/12 DATE: 20130923 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT PARDU, HIMEL AND RAMSAY JJ. BETWEEN: TIMMINS AND DISTRICT HOSPITAL Applicant – and – ONTARIO NURSES’ ASSOCIATION AND WILLIAM A. MARCOTTE Respondents ORAL REASONS FOR JUDGMENT PARDU J.

Date of Reasons for Judgment: September 23, 2013 Date of Release: September 26, 2013