Enercare Home Services v Unifor, Local 975, 2019

IN THE MATTER OF AN ARBITRATION

Under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A

B E T W E E N:

ENERCARE HOME SERVICES

 (the “Company”),

– and –

UNIFOR, LOCAL 975

 (the “Union”),

AND IN THE MATTER OF THE GRIEVANCE OF GRANT WEBER REGARDING ALLEGED IMPROPER DENIAL OF DISABILITY BENEFITS.

SOLE ARBITRATOR:               Gordon F. Luborsky

APPEARANCES

For the Union:                  J. James Nyman, Counsel

                                                Andrew Steenson, Vice President and Unit Chair

For the Company:           Sarah C. Crossley, Counsel

                                                 Laura J. Freitag, Counsel

                                                 Satnam Chana, Director of Labour Relations

                                                 Lauren Black, Sr. Legal Counsel, Litigation and Dispute Resolution

                                                 Liz MacNabb, HR Director

                                                Jane Walker, Director, Human Resources

HEARD:                                       November 2, 2017, May 11, 2018; Written Submissions received November 15, November 30 and December 7, 2018

                                                         Toronto, Ontario

DECISION:                                 June 5, 2019

PRELIMINARY AWARD

1.                  Introduction

[1]               The question addressed in this preliminary award is whether the Union’s grievance alleging that the Grievor was improperly denied disability benefits is arbitrable.

[2]               Article 15.01 of the parties’ collective agreement dated April 1, 2014 to March 31, 2017, in effect when the grievance was filed, provides in relevant part that: “Eligible employees will receive Sickness, Disability and Rehabilitation benefits in accordance with the terms and conditions contained in the SDR Plan Text, a copy of which has been supplied to the Union.  The SDR Plan forms part of this collective agreement. (PT)” The initials, “SDR” refers to “Sickness, Disability and Rehabilitation”, and “PT” at the end of a clause denotes that the provision applies to employees in both the full-time and part-time bargaining units, which were consolidated in the previous collective agreement between the parties dated April 1, 2011 to March 31, 2014.

[3]               The Grievor, Mr. Grant Weber, claims he became totally disabled and was entitled to the income replacement benefits specified in the SDR Plan, but denied by the third party long-term disability (“LTD”) insurer purportedly responsible for its administration and payment. The Union’s grievance dated September 6, 2016 consequently alleges that, “the Company has violated the Collective Agreement including but not limited to Article 15 and the incorporated SDR Plan by failing to pay [the Grievor] benefits as prescribed by the SDR Plan.”  It seeks as remedy: “(1) A declaration that the Company has violated and continues to violate the collective agreement; (2) An order directing the Company to cease and desist violating the collective agreement; (3) An order directing the Company to fully compensate [the Grievor] for all losses sustained; [and] (4) such further relief as may be appropriate in the circumstances.”

[4]               The Company (also referred to as “Enercare”) challenges my jurisdiction to adjudicate the merits of the Union’s grievance on three grounds:  First, it asserts the collective agreement requires only that the Company pay the premiums for an insurance policy providing the benefits stipulated in the collective agreement or SDR Plan and, since it claims that the Company has paid those premiums for the negotiated benefit coverage, any question of whether the Grievor received all of his entitlement under the SDR Plan is a matter between the Grievor and the third party insurer alone that is enforceable between those parties in the civil courts.  Second, even if the Company was responsible for providing the long-term disability or income replacement benefits, it alleges that the Company has been paying full premiums for LTD benefit coverage by a third party insurer with the acquiescence of the Union over the terms of many collective agreements that the Company has relied upon to its detriment, thus giving rise to an estoppel against the Union’s attempt to enforce its strict rights in the matter.  And third, in any event the Company contends the Union’s grievance was filed beyond the mandatory three-year time limit stipulated for bringing the Grievor’s claim under the express terms of the SDR Plan, rendering his claim unrecoverable.

[5]               The determination of the preliminary dispute thus turns on the proper identification of the SDR Plan and “the terms and conditions contained” in that Plan text as incorporated within the collective agreement in effect on the date of the grievance.  There is much disagreement between the parties on what, exactly, is the applicable SDR Plan for purposes of the present grievance, and what the “terms and conditions” of the Plan text require.

[6]               After presenting opening statements in the course of which the parties referred to many documents filed on consent, including prior collective agreements between the Company and Union (under their previous and successor Company and Union names), as well as different alleged versions of the SDR Plan, the parties agreed to argue the preliminary issues going to my jurisdiction in writing, which they submitted in accordance with a consensual timetable.

1.                Decision

[7]               Having considered the agreed facts, documents and representations of the parties, I have concluded that I have jurisdiction over the merits of the grievance which is unaffected by any estoppel and/or timeliness claims, and consequently the Company’s preliminary objection must be dismissed.  My reasons are as follows

III.               Agreed Statement of Facts

[8]               The parties argued the preliminary question from an agreed statement of facts and supporting documentation filed during the parties’ opening oral presentations along with an accompanying Book of Documents (referred to as “Enercare BOD”) which were set out in the Company’s written submissions at paragraphs 10 to 46, reproduced below exclusive of references to specific tab and page numbers in the Enercare BOD.

 

PART II:  THE AGREED STATEMENT OF FACTS

10. The parties have agreed to a statement of facts.  Such facts are found at paragraphs 11 to 46, inclusive.  The agreed to statement of facts consists of the documents submitted by the parties at the first day of hearing with the exception of Enercare’s document which was provided to [theArbitrator] as an aid.  The parties further agreed that it is not necessary for Enercare to call evidence to prove the facts set out at paragraphs 11 to 46, inclusive.

11. This matter concerns a grievance filed by the Union on or about September 9, 2016 on behalf of the Grievor.

12. At the time the grievance was filed, Enercare and the Union were bound by a Collective Agreement [dated April 1, 2014 to March 31, 2017].

13. The Grievor has been employed with Enercare (and its predecessor entities) since November 6, 2000 as an Installer (for Enbridge Services Inc., operating as Enbridge Home Services as set out in paragraph 30).

14. On October 19, 2010, the Grievor suffered a work-related lower back injury for which he took a leave of absence and received benefits from the Workplace Safety and Insurance Board.  On December 28, 2010, the Grievor returned to work to perform modified duties.

15. On September 10, 2012, the Grievor’s modified duties pay was terminated, and sick pay under Article 15.05 of the collective agreement commenced.  While this sick pay was supposed to terminate after the short period of time prescribed by the collective agreement and eventually replaced by STD benefits (under Article 15.04), the Grievor was subsequently involved in a motor vehicle accident on October 5, 2012 and the Company continued to pay the Grievor, on a gratuitous basis, at 100% of his pay.

16. After the motor vehicle accident, the Grievor returned to work temporarily to attempt modified duties without success.  His last day worked was sometime in December of 2012.  The Grievor continued to receive sick pay at 100% during this time.

17. On or about October 8, 2014, the Grievor was advised that he could apply for LTD benefits from Manufacturers Life Insurance Company (“Manulife”).  He applied for such benefits; however, by decision dated August 25, 2015, Manulife declined the Grievor’s claim beyond October 19, 2012 because his medical documentation did not preclude him from performing sedentary duties.  This decision also included the procedure for appealing Manulife’s decision, which set an outside absolute deadline of August 25, 2016.

18. A subsequent review of additional medical documentation by Manulife confirmed the August 25, 2015 decision, pursuant to which Manulife issued a renewed decline decision on October 15, 2015.  This decision advised the Grievor of the procedure for appealing the decision, which included an initial deadline for requesting a review of the decision within 60 days from the date of the letter and a revised outside absolute deadline of October 15, 2016.

19. Notwithstanding this denial of LTD benefits, Enercare continued to pay the Grievor sick benefits at 100% of his pay, in error, until approximately April 18, 2016.  While the Grievor was not advised that such payments were an errorper se,Enercare advised the Grievor that it continued to pay in “in good faith”.  Enercare subsequently converted the Grievor to STD benefits at 66-2/3% of his pay until July 18, 2016.  After July 18, 2016, Enercare ceased paying STD benefits to the Grievor.

20. The Grievor missed the initial 60-day deadline to request a review of Manulife’s October 15, 2015 decision.

21. On March 4, 2016, the Grievor’s personal injury lawyer requested that Manulife redeliver its October 15, 2015 decision because the Grievor could not locate it.  Manulife delivered this letter to the Grievor’s counsel later that day on March 4, 2016.

22. On May 4, May 10, and July 5, 2016, Enercare sent the Grievor letters, copying Andrew Steenson, the Union’s Vice President, reminding the Grievor of his impending LTD appeal deadline of October 15, 2016.  In between these formal letters, there were several phone calls and emails from both Enercare and Manulife respecting the Grievor’s LTD application.  Manulife also delivered a copy of the Grievor’s file, which included the October 15, 2015 decision, to Union counsel on or about June 10, 2016.

23. Commencing in January 2015, John Philp of Preszler LLP began writing to Enercare to advise that he had been retained by Mr. Weber to represent him in a civil law suit related to a motor vehicle accident seeking lost income and damages.  In that regard, Preszler LLP requested Enercare to provide information in respect of Mr. Weber’s employment so as to substantiate the claim for loss they were seeking.  Enercare responded to such requests by Preszler LLP at the time and ongoing into 2016.

24. The Union filed the Grievance on September 9, 2016, which alleged:

        I, Grant Weber, protest and grieve that the Company has violated the Collective Agreement including but not limited to Article 15 and the incorporated SDR Plan by failing to pay me benefits as prescribed by the SDR Plan.

25. An excerpt of Article 15 of the Collective Agreement has been provided.

26. Mr. Steenson and Enercare’s Director of Labour Relations, Satnam Chana, agreed to place the Grievance in abeyance pending the result of the Grievor’s LTD appeal application.

27. The Grievor failed to submit the required appeal documents to Manulife by the deadline.  And, despite Enercare’s request, Manulife has since refused to reopen the appeal period.

28. The Union referred this matter toarbitration on or about December 8, 2016.

29. Enercare is the product of successive corporate acquisitions.  The earliest predecessor entity, Consumers’ Gas Company Ltd. (“Consumers’ Gas”) dates back to 1848.  This business later changed its name to Enbridge Consumers’ Gas in 1998 and then later was referred to only as Enbridge Gas.  Enbridge Gas still operates today but isnot related in any way to Enercare.  In 1999, as part of the deregulation of the industry, a new entity – Enbridge Services Inc., was created.   Enbridge Services Inc. operated as Enbridge Home Services.  From 1999 forward, both Enbridge Home Services and Enbridge Consumes Gas existed and ran separate and distinct operations.  Then, in 2002, a parent company of Direct Energy Marketing Ltd. (operating as Direct Energy) purchased Enbridge Services Inc. and later began to operate as Direct Energy Essential Home Services.  For additional clarity, Direct Energy Marketing Ltd. only acquired Enbridge Home Services (not Enbridge Consumers’ Gas).  In October 2014, Enercare Home and Commercial Services Limited Partnership purchased the assets of a portion of Direct Energy Essential Home Services of Ontario, which is now operating as Enercare Home Services.

30. In 2000, the Grievor was hired and commenced employment with Enbridge Services Inc., operating as Enbridge Home Services (notEnbridge Consumers’ Gas).

31. The Enbridge Youfirstdocument was distributed to unionized employees during the onboarding process in or about 1999.  At this time, Enbridge employees received LTD benefits through Great West Life.

32. The Direct Energy Youfirstdocument was provided to unionized employees after the acquisition and brand changeover from Enbridge.  Enbridge became Direct Energy in 2002, and the Direct Energy Youfirstdocument was distributed in 2005. At this time, LTD benefits were provided through a third party insurance company.  Direct Energy employees received LTD benefits through RBC Insurance.

33. Enercare distributed its “enercare for me” Benefits Booklet in or around, 2016.  At this time, LTD benefits were provided through a third party insurance company.  At that time and currently, Enercare employees receive LTD benefits through Manulife.

34. Documents listing unionized employees receiving LTD benefits from a third party insurer are set out at Enercare’s BOD at Tab 12.  The first document is a list of unionized employees who had been off on LTD and receiving benefits since 2005 onwards.  Enercare received this information as part of the due diligence process leading up to the acquisition.  The second document at Tab 12 of Enercare’s BOD lists other unionized employees who became disabled on May 12, 2012 and received LTD benefits.  The third document indicates three unionized employees who were in receipt of LTD benefits from a third party insurer as a result of disabilities sustained in 2007 and 2008.  The Union did not have access to these documents until they were produced in the course of this hearing.

35. Tab 13 of Enercare’s BOD is a seniority list (which the Union would have received) indicating unionized employees in receipt of STD or LTD benefits.  LTD benefits were provided by the third party insurer.

36. Enercare’s Group Benefits Policy with Manulife is located at Tab 6 of Enercare’s BOD.  Enercare pays the premiums for LTD benefits for its unionized employees.  Manulife has paid such LTD benefits.

37. To Enercare’s knowledge, the Union has not grieved the introduction and/or distribution of the documents at Tabs 8 [“Youfirst” document naming “Direct Energy” as Employer], 9 [“Youfirst” document naming “Enbridge Services” as Employer] or 10 [“Benefits Booklet” naming “Enercare” as Employer] of Enercare’s BOD.

38. To Enercare’s knowledge, no grievances have been filed in relation to LTD benefits.  However, two unionized employees whose LTD claims were declined subsequently reached settlements with the relevant third party insurers – [B.M.] obtained a settlement with RBC insurance in 2012 (initially approved for LTD as of November 8,, 2006) and [L.P.] who commenced a leave on July 11, 2001 and subsequently settled with Great West Life.  The Union has no knowledge of these settlements, nor did it participate in the discussions in relation to either settlement.

39. The Grievor’s Manulife file is located at Tab 4 of Enercare’s BOD.

40. Various email correspondence regarding the Grievor from September 12, 2012 to November 4, 2016, is at Enercare’s BOD Tab 3. At pages 63 to 65, inclusive, Mr. Chana attempted to contact the Grievor to discuss the August 25, 2015 decline decision from Manulife as both Manulife and Robert Ibrahim, Total Value Program Manager, were having difficulty reaching Mr. Weber.  Mr. Chana further attempted to call the Grievor on September 21 and 22, 2015.  Mr. Chana spoke with the Grievor on September 22, 2015 about Manulife’s decision to decline his request for LTD benefits.

41. Mr. Chana and Mr. Ibrahim spoke with Manulife and advised they had informed Mr. Weber of Manulife’s decision.  Mr. Chana further communicated that Mr. Weber may not, in fact, be able to perform sedentary duties based on discussions with Mr. Steenson. The Case Manager indicated Manulife would conduct further medical reviews to determine LTD eligibility.

42   An invitation to discuss this matter was sent from Mr. Ibrahim to Mr. Weber, Mr. Steenson and Mr. Chana.  Mr. Chana recalls discussing his claim and Mr. Weber thanking the Company for being supportive of his claim.  It was explained that additional information needed to be provided to Manulife.  In preparing for this arbitration and reviewing Manulife’s file, Manulife provided a second decline letter dated October 15, 2015.

43. The Union filed the grievance on September 9, 2016.

44. Mr. Chana and Mr. Steenson agreed to hold the grievance in abeyance pending a resolution of Mr. Weber’s claim for LTD benefits.  When Manulife declined the claim, the matter proceeded toarbitration.

45. Further to the Union’s request, from what Enercare has been able to determine, there were no discussions at the bargaining table from 2000 to the filing of the grievance.

46. Mr. Weber, through counsel as Preszler LLP, continues to pursue a civil law suit.

 

[Emphasis in original]

1.    Relevant Contractual Provisions

[9]               As noted above, the parties filed a number of documents on consent at the first day of the hearings into this matter, which included copies of successive collective agreements from February 1, 1993 to the present date between the Company and the Union under their predecessor and current names.  The following provisions of the April 1, 2014 to March 31, 2017 collective agreement between “Essential Home Services, a division of Direct Energy Marketing Ltd.” (hereinafter “Essential Home Services”) and “Unifor Local 975”, under which I derive my authority as arbitrator in the instant case, are immediately relevant to the parties’ preliminary dispute on the question of my jurisdiction to hear the merits of the grievance.

               ARTICLE 14

               EMPLOYEE BENEFITS

               …

               14.03      Hospital, Surgical, and Medical Benefits

1. A)   Employees are eligible to enroll in the Provincial Government’s Health Insurance Plan in conformity with Provincial Legislation.   The Company will pay 100% of the cost of such plan.  In the event of elimination of the (Provincial) O.H.I.P. plan the Company will provide comparable coverage.

1. B)   Employees after three (3) months service will be eligible to enroll in the extended health benefits plan and the semi-private hospital coverage plan for employees and their dependents.  The Company will pay 100% of the cost for such plans.

2014. C)   Improve Vision Care to $200 from $180 every twenty-four (24) consecutive months, as outlined in the Health and Dental care plan, effective April 1, 2014.

1. D)   Add Hearing Aid coverage ($500 every five (5) years) as outlined in the Health and Dental care plan, effective following ratification.

               14.04      Group Life Insurance

1. A)   Employees must enroll in the Company’s Group Life Insurance Plan, which will provide for the payment of $40,000 to the beneficiary in case of the death of a participating employee. The Company will pay 100% of the cost for such plan.

1. B)   An employee may elect to apply for Optional Life Insurance coverage in accordance with the terms and conditions of the Life Insurance Plan.  Such Optional Life Insurance will become effective after three (3) months of employment and shall be fully paid for by the employee.

1. C)   An employee may elect to apply for Optional Dependent Life Insurance to insure a spouse and each dependent child in accordance with the terms and conditions of the Life Insurance Plan.  Such optional insurance shall be effective after three (3) months of employment and shall be fully paid for by the employee.

               14.05      Dental Plan

 

                                Upon the completion of three (3) months employment an eligible employee will be enrolled in a Dental Plan which will provide dental benefits for employees and dependents.  The Company will pay 100% of the premium of such plan.

               …

               ARTICLE 15

SICK BENEFITS

 

15.01      Eligible employees will receive Sickness, Disability and Rehabilitation Benefits in accordance with the terms and conditions outlined in the SDR Plan Text, a copy of which has been supplied to the Union.  The SDR plan forms part of this collective agreement. (PT)

15.02      An employee will be eligible for Sickness, Disability and Rehabilitation Benefits after three (3) continuous months of employment. (PT)

15.03      The Company reserves the right to demand reasonable proof of illness before paying any benefits.  The Company will reimburse the cost of any medical certificate requested.   Consistent with the Company’s Attendance Management Program, employees will not be disciplined for absence due to legitimate illness or injury. (PT)

15.04      An employee absent on account of illness or accident shall receive basic pay from the first day of absence.  Sickness, Disability and Rehabilitation Benefits will be paid in accordance with the following Schedule for any one illness or accident. (PT)

               SERVICE                                             SDR BENEFIT

               Less than one year                             Full pay for 2 weeks

                                                                                66 2/3% pay after 2 weeks

                                                                                Nil pay after 26 weeks

               1 year to 2 years                                 Full pay for 6 weeks

                                                                                66 2/3% pay after 6 weeks

               2 years to 4 years                                Full pay for 8 weeks

                                                                                66 2/3% pay after 8 weeks

               4 years to 6 years                                Full pay for 12 weeks

                                                                                66 2/3% pay after 12 weeks

               6 years to 8 years                                Full pay for 16 weeks

                                                                                66 2/3% pay after 16 weeks

               8 years to 10 years                              Full pay for 20 weeks

                                                                                66 2/3% pay after 20 weeks

               10 years and over                              Full pay for 26 weeks

                                                                                66 2/3% pay after 26 weeks

               The term “pay” in the table above for task-rated employees will be based on:

1. a)   the downtime rate for the first two (2) weeks of any absence; and
2. b)   the employee’s Daily Average Task Rate for any absence in excess of two (2) weeks.

15.05      An employee who is absent on account of illness or other causes must notify the employee’s immediate manager (or designate) prior to the start of the absence or as soon as physically possible indicating the duration and nature of such absence.  In the case of failure to so report, the absence will be considered to commence only from the time that proper notification is received for the purpose of computing sick benefits under Article 15.04.  If the original notification reported the absence to be less than one (1) week and subsequently such absence is extended, notification shall be given to the Company of such extension as soon as it is known.  Employees must report progression of illness every seven (7) calendar days on an illness or disability extending over a period unless other notification is arranged with the Employee’s immediate manager (or designate). (PT)

15.06      An employee who is injured at work will receive a full days’ pay for the day of the accident. (PT)

15.07      An employee receiving benefits under the terms of the Workplace Safety and Insurance Board benefits will receive an amount necessary to make up normal net pay, which for task-rated employees shall be based on the employee’s Daily Average Task Rate. (PT)

15.08      Employees incapacitated by reason of advanced age or general impairment of health for the efficient performance of their regular duties may be placed in any job they are capable of filling, regardless of seniority, by mutual agreement of the parties to this Agreement.   Employees thus re-assigned to a lower classification shall be red-circled. (PT)

 

ARTICLE 25

GRIEVANCE PROCEDURE

25.01      A grievance may arise only from a dispute concerning the interpretation, application, and administration of alleged violation (sic) this agreement.  An earnest effort will be made on the part of both parties to settle such a grievance promptly through the following steps. (PT)

25.02      Step 1.

               If an employee has a grievance, the first step is to advise the appropriate Supervisor/Manager within five (5) working days of the employee being aware of the act originating the grievance and if desired may have the assistance of a steward.  If a settlement is not arrived at within three (3) working days the employee may proceed to the next step. (PT)

25.03      Step 2

               The grievance will be submitted in written form to the appropriate Supervisor/Manager by the employee and a Steward, The Manager will respond in writing within seven (7) working days.

…

25.04      Step 3

               An appeal from that decision may be made in writing within seven (7) working days by the Union.  Both parties agree that upon request by either party for a meeting that such a meeting shall take place within ten (10) working days.  The Company will give its decision in writing within ten (10) working days after the date of such meeting.  If the decision does not bring a satisfactory settlement of the grievance, either party may refer it to arbitration.

…

ARTICLE 26

ARBITRATION

…

26.04      It is agreed that the Board of Arbitration shall not have any authority or jurisdiction to alter this Agreement or to deal with any matter not covered by this Agreement. (PT)

[Emphasis added]

1.      The Evolving Collective Agreement Context

[10]           Paragraph 29 of the parties’ Agreed Statement of Facts describes the history of “successive corporate acquisitions” beginning with the 1848 Consumers’ Gas Company Ltd. (“Consumers’ Gas”) that changed its name in 1998 to “Enbridge Consumers’ Gas” (also referred to as “Enbridge Gas”) which after the deregulation of the Ontario energy sector in 1999 continues in business under that name to the present date, but (as noted in the Agreed Facts) “is not related in any way to Enercare”.  At the time of deregulation, The Consumers’ Gas Company Ltd. had two central business activities:  the first was the distribution of gas to households and other facilities, and the second was the installation and servicing of gas furnaces and appliances along with the sale of gas appliances (referred to as “white goods”).

[11]           Elaborating on that history, the collective agreements filed by the parties at the outset of the hearing indicates there was a split at the time of the name change in or about 1998 or 1999 between that portion of the original Consumers’ Gas business providing direct gas delivery services (under the name Enbridge Gas, which continued to be subject to government regulation) from the home installation, servicing and sale of white goods portion of the business that was deregulated under the name, “Enbridge Services Inc.” and carried on business as “Enbridge Home Services”.  The Grievor began his employment for that latter corporate entity as an Installer on November 6, 2000, which was within the bargaining unit governed by a collective agreement then between Enbridge Services Inc., operating as Enbridge Home Services and Communications, Energy and Paperworkers Union (“CEP”), Local 975, which was a predecessor of the current Unifor Local 975.

[12]           In 2002 the Agreed Facts state a parent corporation of “Direct Energy Marketing Ltd.” referred to as “Direct Energy”, purchased Enbridge Services Inc. that it subsequently operated as, “Direct Energy Essential Home Services” and was party to the April 1, 2014 to March 31, 2017 collective agreement with Unifor Local 975.  The Grievor’s status as an employee (who was not actively at work) was continued under that corporate entity at the time.  Completing the corporate history to the present date, the Agreed Statement of Facts recount that, “In October 2014 Enercare Home and Commercial Services Limited Partnership purchased the assets of a portion of Direct Energy Essential Home Services in Ontario, which is now operating as Enercare Home Services”.  The Union’s September 9, 2016 grievance was filed under the collective agreement between Direct Energy Essential Home Services and Unifor, Local 975, from which I derive my essential authority in this case.  Enercare Home Services became the successor employer in or about October of 2014 (thereby inheriting the April 1, 2014 to March 31, 2017 collective agreement), with current potential liability in the matter.

[13]           The corporate ownership and collective agreements have thus evolved in a number of discrete stages from: (1) Consumers’ Gas Company Ltd. before 1999; to (2a) the continuation of Consumers’ Gas Company Ltd. under the name, Enbridge Consumers’ Gas for the distribution of regulated gas services with (2b) the establishment of a new entity known as Enbridge Services Inc., operating as Enbridge Home Services between 1999 and 2002 providing installation, maintenance and sales of related white goods; when (3) Direct Energy Essential Home Services acquired the Enbridge Home Services portion of the Enbridge Consumers’ Gas business (operating as “Essential Home Services”); that (4) has since October 2014 continued through the acquisition of certain assets by Enercare Home and Commercial Services Limited Partnership, to operate as Enercare Home Services.

[14]           Notwithstanding changes in the Company and Union identities over the years brought about by corporate acquisitions and union amalgamations, the collective agreements filed by the Union on consent also reveal a chain of continuity or at least similarity in the language of both article 15 and article 26.04 in the 2014 – 2017 collective agreement under which the instant grievance arose since at least 1993, which was prior to the 1998 renaming and later split of gas distribution from the installation, servicing and sales functions performed by Consumers’ Gas and Enbridge Home Services.  An understanding of the development of the relevant collective agreement text in the context of the corporate reorganizations and its relationship to the Company’s claims of changing SDR Plans, considered below, is necessary to appreciate the roots of the present preliminary controversy between the parties.

[15]           The first collective agreement in this chain of successive corporate acquisitions is between “The Consumers’ Gas Company Ltd.” and “Communication, Energy and Paperworkers Union, Local 513” that was in effect from February 1, 1993 to January 31, 1995.  Article 1, entitled “Union Recognition”, confirmed CEP Local 513 “as the sole bargaining agency of all office, clerical, sales and laboratory employees in the Metropolitan Toronto area, and the Districts of East Central, West Central, North Central, and Georgian Bay”, save and except categories of employees not relevant for immediate purposes.

[16]           Article 20 of that collective agreement is entitled, “Sick Benefits”.  While not exactly the same as article 15.01 of the collective agreement at issue in the present case in all respects, the language of article 20.01 in the 1993 – 1995 collective agreement is materially similar, stating that: “Employees will be eligible for SDR Benefits in accordance with the terms and conditions of the SDR Plan text. The Union will be supplied copies of the SDR Plan text yearly and after any amendment.  The SDR Plan forms part of this Collective Agreement.” Article 20 of that collective agreement is set out in its entirety below:

Article 20

SICK BENEFITS

 

20.1        Employees will be eligible for SDR Benefits in accordance with the terms and conditions of the SDR Plan text.  The Union will be supplied copies of the SDR Plan text yearly and after any amendment.  The SDR Plan forms part of this Collective Agreement.

20.2        An employee will be eligible for Sickness, Disability and Rehabilitation Benefits after three (3) continuous months of employment.

20.3        The Company reserves the right to demand reasonable proof of illness before paying any benefits.

20.4        An employee absent from work on account of illness or accident shall be paid at basic pay from the first day of absence.  Employees with less than 5 years’ service will be paid from the first day of absence for four (4) instances of absence in a twelve (12) month period and subsequent absences will not be paid for the first day.  Sickness, Disability and Rehabilitation Benefits will be paid in accordance with the following schedule for any one illness or accident.

               SERVICE                                             SDR BENEFIT

               Less than one year                             Full pay for 2 weeks

                                                                                66 2/3% pay after 2 weeks

                                                                                Nil pay after 26 weeks

               1 year to 2 years                                 Full pay for 6 weeks

                                                                                66 2/3% pay after 6 weeks

               2 years to 4 years                                Full pay for 8 weeks

                                                                                66 2/3% pay after 8 weeks

               4 years to 6 years                                Full pay for 12 weeks

                                                                                66 2/3% pay after 12 weeks

               6 years to 8 years                                Full pay for 16 weeks

                                                                                66 2/3% pay after 16 weeks

               8 years to 10 years                              Full pay for 20 weeks

                                                                                66 2/3% pay after 20 weeks

               10 years and over                              Full pay for 26 weeks

20.5        Employees who, after 10 years continuous service are laid off permanently because of technological improvements shall be paid any accumulated benefits accrued except the benefit will not exceed the following schedule:

               Service                                                Cumulative Benefit

               10 to 14 years                                      6 weeks at full pay

               15 to 19 years                                      8 weeks at full pay

               20 to 24 years                                      10 weeks at full pay

               25 years or more                                 13 weeks at full pay

20.6        In the event that an employee is receiving benefits under the terms of the Workers’ Compensation Act, or the Post Discharge Order of 1941, amended, the employee shall receive an amount necessary to make up to normal net pay.

20.7        Employees incapacitated by reason of advanced age or general impairment of health for the efficient performance of their regular duties may be placed in any job they are capable of filling, regardless of seniority, by mutual agreement of the parties to this Agreement.

20.8        An employee absent from work on account of illness or accident must, if at all possible, report personally by telephone to their Supervisor within one hour of the start of a normal working day indicating the nature and duration of such absence.  If the immediate Supervisor is not available, a message will be left for the Supervisor.

               In the case of failure to so report, the absence will be considered to commence only from the time proper notification is received for the purpose of computing sick benefits under Article 20.4.

               If the original notification reported the absence to be less than one (1) week and subsequently such absence is extended, notification shall be given to the Company of such extension as soon as it is known.  Employees must report progression of illness every seven (7) calendar days on an illness or disability extending over a period unless other notification is arranged with the employee’s Supervisor.

[17]           Also noteworthy is article 22 of the 1993 – 1995 collective agreement entitled, “Employee Benefits”, which corresponds to article 14 in the 2014 – 2017 collective agreement, reproduced in relevant part as follows:

Article 22

EMPLOYEE BENEFITS

               22.1        In the event that the existing Government Health Care Programme is eliminated, the Company will provide comparable coverage.

               22.2        Employees after 3 months’ service will be eligible for enrollment in the extended health benefit plan and semi-private hospital plan for employees and their dependents.  The Company will pay 100% of such plans.

               22.3        Employees on entering the Company’s service will be enrolled in the Company’s Group Life Insurance Plan, which will provide for the payment of $40,000 to the beneficiary in case of death of a particular employee.  The Company will pay 100% of the cost of such plan.

               22.4        An employee may elect to apply for Optional Life Insurance coverage in accordance with the terms and conditions of the Life Insurance Plan.  Such optional life insurance will become effective after three months’ employment and shall be fully paid for by the employee.

               22.5        An employee may elect to apply for Optional Dependent Life Insurance to insure a spouse and each dependent child in accordance with the terms and conditions of the Life Insurance Plan.  Such optional insurance shall be effective after three months’ of employment and shall be fully paid for by the employee.

               22.6        After three months’ employment, eligible employees will be enrolled in a Dental Plan which will provide dental benefits for employees and dependents.   The Company will pay 100% of the premiums for such plan.

               …

[18]            Finally, the equivalent to article 26.04 of the 2014 – 2017 collective agreement in the 1993 – 1995 collective agreement is article 17.11 (within Article 17 of the collective agreement entitled, “Grievance Procedure”), which states:

17.11      The Board of Arbitration shall judge the issue as presented but shall not modify, enlarge, or amend the Agreement or deal with any matter not covered by this Agreement.

[19]           The foregoing provisions of the 1993 – 1995 collective agreement between what was then The Consumers’ Gas Company Ltd. and CEP, Local 513 can be traced and changes, if any, recognized from the documentation filed by the parties at the outset of the instant arbitration proceedings through the shifting corporate ownerships and union amalgamations over the subsequent years to the present date as follows.

[20]           By order of the Ontario Labour Relations Board dated August 25, 1994, filed by the Union at the outset of these proceedings, the then five bargaining units of the Communications, Energy and Paperworkers Union operating in different locations or regions within Ontario serviced by The Consumers’ Gas Company Ltd., were combined into the single “Local 975” bargaining unit.  The parties, being Enbridge Consumers’ Gas and CEP, Local 975, subsequently negotiated a collective agreement covering all employees within the new amalgamated bargaining unit that was in effect from April 1, 1998 to March 31, 2000, which included the gas distribution and non-gas distribution employees.

[21]           Articles 14 and 15 of that 1998 – 2000 collective agreement are identical in relevant part to articles 14 and 15 of the April 1, 2014 to March 31, 2017 collective agreement between Direct Energy Essential Home Services and Unifor, Local 975, reproduced above, under which the Union’s instant grievance was filed.

[22]           It is also apparent from the collective agreements submitted by the parties that with the change in name from The Consumers’ Gas Company Ltd. to Enbridge Consumers’ Gas, along with that corporation’s later divestment of the installation, service and sales of white goods portion of its business to Enbridge Home Services Inc. which operated from 1999 to 2002, section 69 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, under the heading, “Successor Rights”, mandated the continuation of the collective agreement in effect at the time for that part of the Enbridge Consumers’ Gas business acquired by Enbridge Home Services, which was the corporate entity that initially employed the Grievor when he commenced working as an installer on November 6, 2000.

[23]           The relevant portions of section 69 of the Labour Relations Act, 1995, supra (“LRA”), are reproduced below:

69. (1)Definitions.– In this section,

“business” includes a part or parts thereof;

“sells” includes leases, transfer and any other manner of disposition, and “sold” and “sale” have corresponding meanings.

69. (2)Successor employer.– Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, or her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.

…

[24]           The separate collective agreements that were subsequently negotiated by CEP Local 975 (which was renamed Unifor, Local 975 as a result of the merger of CEP with the Canadian Auto Workers on August 31, 2013) with the successive employers filed by the parties in these proceedings, are notable for their differences in the description of sick benefits under article 15 of those collective agreements.

[25]           Those records show that on November 18, 2000, Enbridge Consumers’ Gas and CEP Local 975 executed a renewal collective agreement covering only those employees engaged in the gas distribution portion of the former consolidated business.  That renewal collective agreement, which had commencement and expiry dates of April 1, 2000 to March 31, 2002, eliminated the previous reference to the “SDR Plan”, replacing it with a short-term disability or “STD Plan” incorporated into the collective agreement (and making other apparent changes to the level of benefit coverage).  Article 15 in that collective agreement is reproduced below:

SICK BENEFITS

15.01      Eligible employees will received Short Term Disability Benefits in accordance with the terms and conditions outlined in the STD Plan Text, a copy of which has been supplied to the Union.  The STD plan forms part of this Collective Agreement.

15.02      An employee will be eligible for Short Term Disability Benefits effective upon their date of hire.

15.03      The Company reserves the right to demand reasonable proof of illness before paying any benefits.  The Company will reimburse the cost of any medical certificate requested.

15.04      A) An employee absent on account of illness or accident shall receive basic pay from the first day of absence.  Short Term Disability benefits will be paid in accordance with the following schedule for any one illness or accident.

SERVICE                                             STD BENEFIT

                              Less than one year                             Full pay for 2 weeks

                                                                                               66 2/3% pay after 2 weeks

                                                                                               Nil pay after 26 weeks

                              1 year to 2 years                                 Full pay for 6 weeks

                                                                                               66 2/3% pay after 6 weeks

                              2 years to 4 years                                Full pay for 8 weeks

                                                                                               66 2/3% pay after 8 weeks

                              4 years to 6 years                                Full pay for 12 weeks

                                                                                               66 2/3% pay after 12 weeks

                              6 years to 8 years                                Full pay for 16 weeks

                                                                                               66 2/3% pay after 16 weeks

                              8 years to 10 years                              Full pay for 20 weeks

                                                                                               66 2/3% pay after 20 weeks

                              10 years and over                              Full pay for 26 weeks

                                                                                               66 2/3% after 26 weeks

15.04      B) Effective July 1, 2001, an employee absent on account of illness or accident shall receive basic pay from the first day of absence.  Short Term Disability benefits will be paid in accordance with the following schedule for any one illness or accident.

                              SERVICE                                             STD BENEFIT

                              Less than one (1) year                       Full pay for 6 weeks

                                                                                               60% pay after 20 weeks

                              1 year to 5 years                                 Full pay for 6 weeks

                                                                                               60% pay after 13 weeks

                              10 years and over                              Full pay for 26 weeks

15.05      An employee who is absent on account of illness or other causes must notify the Company as directed on the inside front cover of this agreement prior to the start of such absence or as soon as physically possible indicating the duration and nature of such absence.  In the case of failure to so report, the absence will be considered to commence only from the time that proper notification is received for the purpose of computing sick benefits under Article 15.4.  If the original notification reported the absence to be less than one (1) week and subsequently such absence is extended, notification shall be given to the Company of such extension as soon as it is known.  Employees must report progression of illness every seven (7) calendar days on an illness or disability extending over a period unless other notification is arranged with the employees’ Supervisor.

15.06      An employee who is injured at work will received a full days’ pay for the day of the accident.

15.07      Employees incapacitated by reason of advanced age or general impairment of health for the efficient performance of their regular duties may be placed in any job they are capable of filling, regardless of seniority, by mutual agreement of the parties to this Agreement.  Employees thus re-assigned to a lower classification shall be red-circled.

[26]           In addition to the foregoing changes to the “Sick Benefits” provision in what was renumbered to article 15 in the 2000 – 2002 collective agreement between Enbridge Consumers’ Gas and CEP Local 975 (from the previous article 22 in The Consumers’ Gas Company Ltd. collective agreement), article 14.03 under the heading “Employee Benefits”, also underwent a change from the pre-1999 Consumers’ Gas Company Ltd. collective agreement describing the employee benefits as set out in Article 20, reproduced above.  The new article 14.03 provided a “flex benefit plan” for hospital, surgical and medical benefits, which was further described in “Letter of Intent #3” under the title, “Flex Credit Formula”, as follows:

14.03      Hospital, Surgical, and Medical Benefits

               Employees will be eligible to enroll in the Flexible Health benefits plan coverage as described in the Company Booklets and benefit plan documents.

…

 

LETTER OF INTENT #3

FLEX CREDIT FORMULA

It is the objective of the company to provide all bargaining unit employees with a flex credit formula that is equitable and competitive.  These Flex credits and the costs/prices will be established July 1, 2001.   These costs and prices will remain in effect from July 2001 for a period of eighteen months.

[27]           The documentation filed by the parties indicates the first post – 1999 collective agreement between Enbridge Home Services and CEP, Local 975, was executed on May 23, 2001 (i.e. more than six months after the first Enbridge Consumers’ Gas collective agreement after the split of gas distribution from installation, servicing and sales), that is dated April 1, 2001 to March 31, 2003, under which the Grievor was employed.

[28]           However, unlike the earlier 2000 – 2002 collective agreement between Enbridge Consumers’ Gas and CEP, Local 975, the first post-split collective agreement between Enbridge Home Services and CEP, Local 975 did not include any of the changes made to articles 14 and 15 of the 2000 – 2002 Enbridge Consumers’ Gas collective agreement referring to Short Term Disability (STD) Benefits signed on November 18, 2000.  Nor did it introduce the concept of flexible benefits in article 14.03.

[29]           Rather, article 15 in the 2001 – 2003 Enbridge Home Services and CEP, Local 975 collective agreement continued the same language as the previous 1998 – 2000 collective agreement between Enbridge Consumers’ Gas and CEP, Local 975 referring to “Sickness, Disability and Rehabilitation Benefits in accordance with the terms and conditions outlined in the SDR Plan Text, a copy of which has been supplied to the Union”.

[30]           Similarly, no changes were negotiated to article 14 of the 1998 – 2000 collective agreement in the 2001 – 2003 Enbridge Home Services collective agreement from the predecessor agreement.

[31]           Thus both articles 14 and 15 continued unchanged in the six post-1999 collective agreements over a period of 19 years between the Union (under the names, CEP, Local 975 or Unifor, Local 975) and Enbridge Home Services dated April 1, 2003 to March 31, 2005, Direct Energy Essential Home Services dated April 1, 2005 to March 31, 2007, April 1, 2007 to March  31, 2009, April 1, 2009 to March 31, 2011 and April 1, 2011 to March 31, 2014, and finally to the Direct Energy Essential Home Services collective agreement in effect from April 1, 2014 to March 31, 2017, under which the current grievance was filed.

1.    The Purported Changing SDR Plans

[32]           The materials presented by the parties indicate the Sickness, Disability and Rehabilitation (“SDR”) Plan in effect when the 1993 – 1995 collective agreement between The Consumers’ Gas Company Ltd. and CEP, Local 513 was operative, is contained in a document entitled, “Sickness, Disability and Rehabilitation Plan for Unionized Employees of Consumers’ Gas Company Ltd. (As Amended and restated as of April 1, 1991)” that was prepared by the actuarial and benefits consulting firm of “William M. Mercer Limited”.

[33]           Although that document is dated “March 1992”, in fact on inspection the front page is stamped with the logo of the CEP, Local 975, which only assumed representation rights for the amalgamated bargaining unit of employees at The Consumers’ Gas Company Ltd. following the order of the Ontario Labour Relations Board dated August 25, 1994, described above.  The presence of the logo on the SDR Plan document indicates it was known by the CEP, Local 975 as of or after that date (and no-doubt earlier through its predecessors).

[34]           The March 1992 SDR Plan is 18 pages in length.  It comprehensively itemizes in nine separate sections the eligibility criteria for employees (referred to as “Members”), the procedure for making claims for benefits, details of the “Income  Benefits” provided by the Plan and its administration under the following headings:  “Establishment of the Plan” (Section 1), “Definitions” (Section  2), “Administration of the Plan” (Section 3),  “Eligibility” (Section 4),  “Benefits” (Section 5), “Claims” (Section 6), “Payment of Benefits” (Section 7), “Rehabilitation Benefits” (Section 8) and “Exceptions and Limitations” (Section 9).

[35]           For immediate purposes focusing on the jurisdiction of an arbitrator to interpret and enforce the SDR Plan provisions, along with the requirements for amending its terms and the time limits mandated under the Plan, the following portions of that SDR Plan text are relevant:

SECTION 1 – ESTABLISHMENT OF THE PLAN

1.01            The Sickness, Disability and Rehabilitation Plan has been established by the Consumers’ Gas Company Ltd. for certain of its Employees effective April 1, 1979.  Members shall be entitled, after the Effective Date, to the Benefits provide by this Plan.

1.02            Effective April 1, 1991, the Plan is amended and restated as set out herein.  Benefits payable under the Plan in respect of claims arising prior to April 1, 1991 will be paid in accordance with the terms of the Plan as it was constituted at that time.

1.03            The Plan may be amended or terminated only through mutual agreement between the Union and the Company.  Any amendment or termination of the Plan will not affect the entitlement to Income Benefits thereunder of a Member who has suffered a Disability prior to the date of amendment or termination.

…

 

SECTION 2 – DEFINITIONS

…

2.04        “Disability” or “Total Disability” shall mean:

(a)     during the first 24 months  of Benefit payments, a state of incapacity due to Sickness or Injury or Pregnancy which prevents the Member from performing the essential duties of his own occupation; and

(b)     thereafter, a state of incapacity due to Sickness or Injury or Pregnancy which prevents the Member from earning at least 66-2/3% of his basic Earnings at the beginning of the Disability.

…

2.06        “Effective Date” shall mean April 1, 1979 or such later date or dates as may be applicable for employees covered by Collective Agreement (sic).

…

2.08        “Income Benefit” and “Benefit” shall mean the Benefit payable under the Plan.

…

2.12        “Member” shall mean an Employee who satisfies the eligibility requirements for membership in the Plan.

…

 

SECTION 3 – ADMINISTRATION OF THE PLAN

3.01            The Administrator of the Plan shall be the Company which shall determine all questions relating to the length of service, eligibility, rates and amounts of earnings, Benefit entitlement and all other matters required to be determined for the purposes of the Plan, except as provided in paragraph 6.06.  The decision of the Company on all matters relating to the administration, interpretation and application of the Plan shall be subject to the Grievance Procedure.

…

SECTION 5 – BENEFITS

5.01 A   Member who suffers a Disability will be eligible, subject to the provisions of Section 6, to claim for Income Benefits in accordance with the following service related schedules during the period of Disability:

                                                               Benefit Period and

Length of at                                       Amount of Income Benefit

Date of Disability                              as a Percentage of Earnings                                        …

(b)     All Other Employees

                                       Less than 1 year                          100% up to 2 weeks

                                                                                                66-2/3% after 2 weeks

                                                                                                Nil after 26 weeks

                                        1 Year to 2 Years                        100% up to 6 weeks

                                                                                                66-23/% after 6 weeks

                                       2 Years to 4 Years                       100% up to 8 weeks

                                                                                                66-2/3% after 8 weeks

                                       4 Years to 6 Years                       100% up to 12 weeks

                                                                                                66-2/3% after 12 weeks

                                       6 Years to 8 Years                       100% up to 16 weeks

                                                                                                66-2/3% after 16 weeks

                                       8 Years to 10 Years                    100% up to 20 weeks

                                                                                                66-2/3% after 20 weeks

                                       10 Years and Over                     100% up to 26 weeks

                                                                                                66-2/3% after 26 weeks

               Note:  Income Benefits after 26 weeks will not exceed $13,000 per month.

5.02        The Income Benefit will be increase each December by 55% of the change in the Consumer Price Index.

…

SECTION 6 – CLAIMS

6.01        The Company, at its expense, shall have the right to require a Member, either as a prerequisite to receiving Benefits or during the receipt of Benefits, to undergo a physical and/or psychological examination by a Physician of its choice and rehabilitation assessment and/or counselling at the location of its choice, when and so often as may be deemed necessary.

…

6.06        In the event a Member disputes the Company’s final adjudication of his claim for Benefits in excess of twenty-six weeks, the Member’s entitlement to Benefits will be decided by a panel composed of a Physician appointed by each of the Company and the Member and a third Physician mutually agreeable to the other two Physicians.  The decision of the majority of the panel shall be final and binding on both the Company and the Member.

6.07        The Union will be involved in any appeal of the Company’s final adjudication under Section 6.06 whenever such case involves a Member of the Bargaining Unit.  The Union reserves the right to grieve any decision arising from the application of Section 6.06 whether or not it participated in the process.

6.08        No liability shall attach to the Company under this Plan except for the recovery of Income Benefits herein.

6.09        No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from the beginning of the Disability or Total Disability and any such action must be taken within the three years following the beginning of the Disability or Total Disability.

…

[Emphasis added]

[36]           Paragraph 45 of the Agreed Statement of Facts is consistent with the Union’s assertion made on the first day of the instant arbitration hearing that in connection with any alleged changes to the SDR Plan text as reflected in the March 1992 William M. Mercer document, “there were no discussions at the bargaining table from 2000 to the filing of the grievance”.  It is not disputed that the March 1992 text of the SDR Plan was in effect at least until 1999 when deregulation of the energy sector and the split of the gas distribution function from the associated installation, service and sales of gas appliances business occurred.  The question of whether that document was properly replaced at or about that time with a new SDR Plan that is binding on the parties is a central issue in considering the Employer’s preliminary objection.

[37]           Paragraph 31 of the Agreed Statement of Facts identifies a benefits booklet entitled, “Youfirst” written in the style of a handout that was distributed to unionized employees of Enbridge Services Inc. operating as Enbridge Home Services “during the onboarding process in or about 1999” (referred to as the “1999 Enbridge SDR Plan” or “1999 Youfirst Booklet”). Paragraph 31 further states that, “At this time, Enbridge employees received LTD benefits through Great West Life”.  The “onboarding process” is understood to be part of the hiring and/or orientation period for new employees.  There is no evidence that the 1999 Youfirst Booklet was ever supplied to the Union at the bargaining table during negotiations for the first post-deregulation collective agreement between Enbridge Home Services and CEP, Local 975 in effect from April 1, 2001 to March 31, 2003.

[38]           The purported 1999 Enbridge SDR Plan filed in these proceedings with the words, “Youfirst” in bold script on its left-front cover, is a 31–page document (with single-spaced writing on both halves of the page in relatively small print) entitled, “Enbridge Services Non-exempt employees Benefits, Savings and Pension Programs”. It is understood that “non-exempt employees” includes the bargaining unit members of CEP, Local 975.  The first page of the Booklet, which is in italics for emphasis, contains the following apparent disclaimer:

This booklet provides you with an overview of your Benefits Program, the Savings Plan and Pension Plan.  It has been prepared for “non-exempt” employees based in the Province of Ontario. Non-exempt refers to those employees covered by a collective agreement.  All references in this booklet to “employees” is deemed to mean “non-exempt” employees. The term “variable-hour” employees also refers to “part-time” employees covered by a collective agreement. 

 

Every effort has been made to ensure the accuracy of the information provided herein.  The complete terms of any coverages are contained within the individual group contracts, policies and Pension Plan documents.  The programs are governed by the provisions of those documents, Enbridge Services policy and relevant government legislation.  If there is any discrepancies between the information herein and the official documents, the terms of the official documents will apply.  The Pension Plan is registered as the Pension Plan for The Employees Of The Consumers’ Gas Company Ltd. and Designated Affiliated, Associated and subsidiary Companies.   

 

Enbridge Services Inc. provides these programs and plans with the intention that they continue indefinitely.  The Company reserves the right to modify or discontinue any benefit plan or program at any time.  In such case, the pension benefits you have accrued to the date of modification or discontinuance will be preserved as required by law.  

 

[Emphasis added]  

 

[39]           The individual group contract setting out the express terms of the 1999 Enbridge SDR Plan, referred to in the foregoing disclaimer as one of the “official  documents” related to that Plan (along with unidentified “Enbridge Services policy and relevant government legislation”), was not filed in these arbitration proceedings.  Nor was there any evidence submitted to suggest that such “official documents” in relation to the 1999 Enbridge SDR Plan were provided to the Union in the course of bargaining the 2001 – 2003 or any subsequent collective agreement between Enbridge Home Services and CEP, Local 975.

[40]           Of the 31 pages in the 1999 Youfirst Booklet, in fact only four pages are dedicated to the description of the Sickness, Disability and Rehabilitation (SDR) Plan (set out at pp. 8 – 11 of the document).  The remaining pages of the Booklet outline terms of the “Health and Dental Care Benefits” (at pp. 2 – 7), “Survivor Benefits” (at pp. 12 – 17), “Pension Benefits” (at pp. 18 – 26) and the “Employee Savings Plan” (at pp. 27 – 31).

[41]           The text describing the 1999 Enbridge SDR Plan in the Booklet are set out under a number of headings that include: “Who is eligible?”, “Who pays for the plan?”, “The SDR Plan”, “How is total disability defined?”, “What is the elimination period under Stages Three and Four?”, “How are earnings defined?”, “What is the reinstatement period?”, “Coordination with other sources of disability income”, “What about rehabilitation?”, “What happens if I seek damages from a third party?”, “When do SDR benefit payments stop?”, “What disabilities are not covered by the plan?”, “When coverage ends”, “How to claim SDR benefits”, and “What happens to my other benefits while I am disabled?”.

[42]           The following provisions in the 1999 Youfirst Booklet, beginning on page 8, are most relevant or were referred to by one of the parties in considering the Company’s preliminary objection to the aribtrability of the present grievance.

…

The SDR Plan is comprised of four basic stages of disability benefit payments, as follows:

•      Stage One:  Where you are eligible, the first 26 weeks of absence is paid on normal pay days.  The level of the payment is based on your years of service.
•      Stage Two:  Where you are eligible, the next 26 weeks of absence is paid at 66 2/3% of your regular basic rate of pay.
•      Stage Three:  Where you are eligible, the next 52 weeks of absence is paid monthly at 66 2/3% of your regular basic rate of pay.  Eligibility will be based on your inability to perform your own job.
•      Stage Four:  Where you are eligible, the remaining period of your absence is paid monthly at 66 2/3% of your regular basic rate of pay. Eligibility will be based on your inability to earn at least 66 2/3% of your pre-disability basic rate of pay in any job.

…

Who pays for the plans?

Enbridge Services pays the full cost of Stages One and Two, and the full premium cost associated with Stages Three and Four.

Stages One and Two of the SDR Plan are fully funded and administered by Enbridge Services.

Stages Three and Four of the SDR Plan are currently provided through the insurance company.

As the entire SDR Plan is fully paid for by Enbridge Services, the benefit income is subject to income tax deductions. 

 

The SDR Plan

Stages One and Two of the Enbridge Services SDR Plan pay, on regular pay days, a minimum of 66 2/3% of your regular earnings for up to 52 weeks for any one cause of disability.  The amount you receive will depend on your length of service, according to the following tables.

When you are eligible, Stages Three and Four of the SDR Plan pay, monthly in arrears up to 66 2/3% of your regular earnings.  Benefit payments for this portion of the plan are paid through the insurance company.

All benefit payments made for Stages Two, Three, and Four are subject to a monthly maximum payment of $17,000.

…

How is total disability defined?

Under Stages One, Two and Three of the SDR Plan, Total Disability is defined as your inability to perform the essential duties of your own occupation as the result of a covered sickness or accident.

Under Stage Four of the SDR Plan, Total Disability is defined as you inability to earn at least 66 2/3% of your pre-disability earnings in any job.

…

How to claim SDR benefits

…

In the event you have a dispute with the Company’s decision on your claim for Stage Two disability benefits, your future benefit entitlement will be decided by a panel composed of a physician appointed by yourself at no cost to the Company, and a physician appointed by the Company, and a third physician agreed upon by the other two physicians.  The decision of the majority of the panel shall be final and binding upon both you and the Company.

No liability shall attach to the Company under Stages One and Two of the SDR Plan except for the recovery of disability benefits.

No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from your date of disability, and any such action must be taken within three years following the date you first become disabled.  

…

 

What happens if I seek damages from a third party?

Stages Three and Four of the SDR Plan include a “Subrogation” provision.  This provision’s purpose is to coordinate financial damages you may recover from a third party as a result of a personal injury for which you are receiving benefits under Stages three and  Four of the SDR Plan.

The insurance company reserves the right of recovery from you up to a maximum equal to the benefit payments made under Stages Three and Four of the SDR Plan.

The insurance company may, in connection with its right of recovery, require that you sign a Reimbursement Agreement.  This Agreement must be signed and returned to the insurance company within 30 days of the date you receive the request.   Failure to return the completed form within the required time frame may result in the suspension or termination of your benefit payments.

…

[Emphasis added]

[43]           After Direct Energy acquired the Enbridge Home Services Business in 2002 and thereafter operated under the name, “Direct Energy – Essential Home Services”, paragraph 32 of the Agreed Statement of Facts states that Direct Energy published its own “Youfirst” Booklet that was distributed to unionized employees commencing in 2005 (referred to as the “2005 Direct Energy SDR Plan” or “2005 Youfirst Booklet”) and that, “At this time, LTD benefits were provided (to employees) through a third party insurance Company” identified as “RBC Insurance”.

[44]           As with the 1999 Enbridge SDR Plan, there is no evidence on the Agreed Facts that the 2005 Youfirst Booklet was ever provided to the Union when the first and subsequent collective agreements between Direct Energy – Essential Home Services and CEP Local 975 were negotiated, beginning with the contract dated April 1, 2003 to March 31, 2005 up to and including the April 1, 2009 to March 31, 2011 collective agreement in effect when the Grievor suffered a work-related lower back injury on October 19, 2010 (per paragraph 14 of the Agreed Statement of Facts).  Nor is there evidence of any discussions on the matter during negotiations leading to the April 1, 2014 to March 31, 2017 collective agreement between those parties, under which the current grievance was filed on September 9, 2016.

[45]           On inspection the 2005 Youfirst Booklet entitled, “Direct Energy Non-exempt Employees Benefits, Savings and Pension Programs”, is substantially identical to the 1999 Youfirst Booklet, reviewed above.  (The differences appear to be primarily confined to changes in the name of the Company to “Direct Energy”).  As with the 1999 Booklet, the 2005 Benefits Booklet is emblazed on the left side of its front cover with the words, “Youfirst” under the “Direct Energy” logo.  It is a 27 – page document that describes in terms directed to the employee, the “Health and Dental Care Benefits” (at pp. 1 – 6), “Sickness, Disability & Rehabilitation Plan” (at pp. 7 – 10), “Survivor Benefits” (at pages 11 – 16), “Pension Benefits” (at pp. 17 – 22) and “Employee Savings Plan” (at pp. 23 – 27).  Only four pages are dedicated to the description of the Sickness Disability and Rehabilitation (SDR) Plan.

[46]           The 2005 Youfirst Booklet also contains, on its very first page of text, an italicized disclaimer provision that is materially identical to the 1999 Youfirst Booklet describing the 1999 Enbridge SDR Plan, except for changing references from Enbridge to Direct Energy as appropriate.  Like the 1999 Enbridge Booklet, the disclaimer in the 2005 Youfirst handout for Direct Energy expressly states that the Booklet provides “only an overview” of the “Benefit Program, the Savings Plan and Pension Plan”. And, as in the 1999 Youfirst Booklet, the information in its text is subject to the “official documents” of the actual “individual group contracts” for each program or plan described therein (which were not filed by the parties), as expressed by the disclaimer in the following terms:

Every effort has been made to ensure the accuracy of the information provided herein.  The complete terms of any coverages are contained within the individual group contracts, policies and Pension Plan documents.  The programs are governed by the provisions of those documents, Direct Energy policy and relevant government legislation.  If there are any discrepancies between the information herein and the official documents, then the terms of the official documents will apply. The Pension Plan is registered as the Pension Plan For The Employees Of Direct Energy Marketing Limited.    

[Emphasis added]

[47]           No evidence was presented in these arbitration proceedings indicating whether any of the “official documents” related to the 2005 Direct Energy SDR Plan were ever provided to the Union during any round of collective agreement bargaining commencing with the first collective agreement between Direct Energy – Essential Home Services and CEP Local 975 after Direct Energy acquired the Enbridge business (or when the Grievor experienced his first “disability” resulting in his absence from work on October 19, 2010), up to and including the April 1, 2014 to March 31, 2017 collective agreement under which the present grievance was filed.

[48]           The “overview” of the Sickness, Disability & Rehabilitation (SDR) Plan, at pp. 7 – 10 of the 2005 Direct Energy Youfirst Booklet is also substantially the same as in the previous 1999 Enbridge SDR Plan document, and for purposes of the immediate consideration of the Employer’s preliminary objection, they are identical.  Thus, under the heading, “Who pays for the plans?” the 2005 Direct Energy SDR Plan states at p. 7 (also in somewhat small print):  “Stages Three and Four of the SDR Plan are currently provided through the insurance company” (emphasis added) and that “the full premium cost associated with Stages Three and Four” are paid by the Company (emphasis added).  In the Section entitled, “The SDR Plan”, the text states:  “Where you are eligible, Stages Three and Four of the SDR Plan pay, monthly in arrears up to 66 2/3% of your regular earnings.  Benefit payments for this portion of the plan are paid through the insurance company” (emphasis added). Under the heading, “What happens if I seek damages from a third party?” the text states:  “The insurance company reserves the right of recovery from you up to a maximum equal to the benefit payments made under Stages Three and Four of  the SDR Plan.”  And, like the 1999 Enbridge SDR Plan, in describing “How to claim SDR benefits”, the 2005 Direct Energy Youfirst Booklet provides, “No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from your date of disability, and any such action must be taken within three years following the date you first become disabled” (emphasis added).

[49]           Paragraph 33 of the Agreed Statement of Facts recounts events after Enercare Home and Commercial Services Limited Partnership acquired that portion of the Direct Energy – Essential Home Services business in or about October of 2014 and thus became the successor employer of the collective agreement under which the Grievor was employed, with potential continuing liability for the Grievor’s vested claims under the prior SDR Plan.  The Agreed Facts state that in or around 2016 Enercare distributed a Benefits Booklet to its unionized employees entitled, “enercare for me” (lowercase intentional), which is further described as, “Your Guide to Enercare’s Employee Benefits Program”. Like the previous 1999 Enbridge and 2005 Direct Energy Youfirst Booklets, the 2016 Enercare document states that it provides “a summary” of all group benefits available for the employees, under the titles, “Health care”, “Dental  care”, “Disability Insurance”, “Life insurance”, “Optional Accidental Death and Dismemberment (AD&D) insurance”, along with “Other benefits” identified as “Employee and Family Assistance Program”, “Employee Share Purchase Plan”, “Voluntary Savings and Retirement” and “Defined Contribution Pension Plan”.

[50]           There is no reference in the Enercare Benefits Booklet to a specific “Sickness, Disability and Rehabilitation” or “SDR” Plan, as identified in the previous 1999 Enbridge and 2005 Direct Energy Youfirst Booklets (and expressly referred to in the many collective agreements filed in these proceedings including the April 1, 2014 – March 31, 2017 collective agreement that was in effect when Enercare became the successor employer from Direct Energy, notwithstanding the fact that article 15.01 of the continuing collective agreement still refers to a Sickness, Disability and Rehabilitation Plan).  Rather, it appears that the SDR Plan has been replaced in the Enercare Booklet with “Disability Insurance”.  There is no evidence of any discussions between the Company and Union on the matter of long-term disability (LTD) coverage (as distinct from the coverage under the prior SDR Plan), that is described on page 12 of the Booklet  as follows:

Disability insurance

 

The Disability plan consists of Short-Term Disability and Long-Term Disability.  The program provides income-replacement benefits for eligible employees in the event of an extended absence from work due to a non-occupational illness or injury that last longer than five (5) consecutive days.  The maximum Short-Term Disability period is 365 days.  If your disability claim is expected to last longer than the maximum Short-Term Disability period, you will need to separately apply for Long Term Disability benefits.

Short-term disability insurance

…

Long-term disability insurance

Long-term disability (LTD) insurance provides a taxable monthly income if you remain unable to return to work after 365 days of illness or injury, and is paid monthly by the LTD insurer, Manulife Financial.  The amount of monthly benefit is 66.67% of your gross monthly pre-disability earnings.

[51]           However, as in the prior 1999 Enbridge and 2005 Direct Energy Youfirst Booklets, the description of benefits in the “enercare for me” handout is expressly subject to a similar disclaimer at the outset that is italicized for emphasis, which states in relevant part:

 

This guide is intended to provide a summary of Enercare’s Benefits Program (“the program”).  The full provisions of the program are contained in the official insurance carrier policy documents.  If there are any discrepancies between the official policy documents and this guide, the terms of the policy documents will apply in all cases.  Copies of the official policy document are available at www.manulife.ca/planmember. 

[Emphasis added]

VII.     The Parties’ Arguments

(a)               The Company

[52]           On behalf of the current successor Company, Enercare Home Services, Ms. Crossley advanced three arguments in support of its position that I am without jurisdiction, or ought to properly decline authority to adjudicate the present grievance.

[53]           First, the Company submitted there were four versions of the SDR Plan at various times during the transition from the pre-1999 Consumers’ Gas Company to the October 2014 acquisition of some of its assets by Enercare Home Services (thereby assuming liability for the Grievor’s claim), identified as: (1) the 1992 Consumers’ Gas SDR Plan; (2) the 1999 Enbridge SDR Plan; (3) the 2005 Direct Energy SDR Plan; and (iv) the 2016 Enercare SDR Plan.  The questions are asked:  Which SDR Plan applies to the Grievor and what are the Company’s obligations under that Plan?

[54]           In considering the effect of a document in the nature of an SDR Plan that provides a form of income replacement or long-term disability (LTD) benefits, which is outside the collective agreement itself, and in particular whether its substantive terms are enforceable through the grievance and arbitration procedure under the collective agreement, the Company referred to the “four categories” of ancillary documents described in Brown, Donald J. M. & David M. Beatty, Canadian Labour Arbitration, 4th ed. (Toronto: Thomson Reuters, 2006), s. 4:1400 – “Form and Content of the Collective Agreement”, as follows:

Pension, insurance and welfare plans are types of extrinsic documents or agreements which are commonly found physically separate from collective agreements.  Whether they form part of the agreement or are otherwise relevant as aids to interpretation depends upon the surrounding circumstances, together with the specific language used in the collective agreement.  Commonly, the relationship between such ancillary documents and the collective agreement will fall into one of four categories.  In one, the plan or policy is not mentioned in the agreement.  In the second, the collective agreement specifically provides for certain benefits, while in the third it only provides for the payment of premiums.  In the last, specific plans or policies are incorporated by reference into the agreement.

Where the collective agreement contemplates that the employer will arrange and pay the premium for an insurance policy and also provides for the benefits in varying degrees of detail, disputes can arise as to whether the arrangement falls within the second category, in which case grievances over the benefits will be arbitrable.  Alternatively, it may be asserted that the parties contemplated that the arrangement fell within the third category, in which case the dispute is not arbitrable.  In some such cases, the collective agreement provisions in question have been labelled “hybrid”.  Nevertheless, as always the issue is one of construction of the provisions of the collective agreement to determine the intention of the parties….

[Emphasis added]

[55]           The Company submitted that both the 1999 Enbridge Youfirst and 2005 Direct Energy Youfirst Booklets issued to employees during the “onboarding” process constitute a “Category 3” type of ancillary insurance policy under the Brown and Beatty classification scheme that limits the Company’s obligations to the payment of premiums to an insurance company for a form of LTD policy covering employees who qualify as being disabled under the terms of that Plan.  In both the 1999 and 2005 Youfirst Booklets, the Company is expressly responsible to pay the full cost of income replacement benefits for absences up to 52 weeks due to short term disability (identified as “Stage One” and “Stage Two”).  But under the heading “Who pays for the plans?” in the Youfirst Booklets, employees were informed that: “Stage Three and Four of the SDR Plan are currently provided through the insurance company” (emphasis added) with “the full premium costs associated” with those Stages paid by the Company.

[56]           “Stage Three” and “Stage Four” as outlined in those Booklets were said to describe a form of LTD benefits providing a disabled employee (as defined under the Plan) who has been off work for 52 weeks with up to an additional 52 weeks’ of income replacement at 66 2/3% of the employee’s regular basic rate of pay where the employee is unable to perform his or her own job (“Stage Three”).  Thereafter, under “Stage Four” of the SDR Plan, the Youfirst Booklets state the employee receives 66 2/3% of his or her regular basic rate of pay if the employee continues to be unable “to earn at least 66 2/3% of [the employee’s] pre-disability basic rate of pay to any job”, which continues until the employee reaches age 65 or is otherwise ineligible for benefit coverage under the terms of the LTD Plan.  The employees are also informed through the Youfirst Booklets that in the event they receive damages from a third party for a personal injury while the employee is receiving disability benefits under Stage Three and/or Four of the SDR Plan, that the “insurance company reserves the right of recovery” of the benefits paid under the Plan, which evidences an intention to have the LTD benefits provided through a policy of insurance as opposed to being paid directly by the Company, according to the Company.

[57]           The express references to an “insurance company” and limitation of the Company’s obligations to pay the premiums required for the appropriate coverage in the YoufirstBooklets is in the Company’s submission determinative on the question of my jurisdiction.  In application to the facts of the present case, the Company argued that the Grievor’s claim of being disabled and thereby eligible for Sickness, Disability and Rehabilitation benefits occurred when he was employed by Direct Energy – Essential Home Services, that was subject to the provisions of the SDR Plan set out in the 2005 Direct Energy Youfirst Booklet, which the Employer characterized as a Category 3 type of benefit.  As such, the Company argued its only obligation was to pay the premiums for the appropriate insurance coverage described in that Booklet for LTD coverage as opposed to providing the benefits themselves or paying for both a policy of insurance and providing the benefits themselves if the insurance company refused payment that the Company submitted would be “highly unlikely”.  Instead, having made the required premium payments for an insurance policy providing the benefits mandated under the collective agreement, the Company claimed any dispute between the Grievor concerning the sufficiency of benefits (including whether he was eligible for the benefit coverage) was a matter between the Grievor and the applicable insurance company only, which had changed from RBC Insurance while the Grievor was employed by Direct Energy to Manulife when Enercare Home Services acquired the business as the successor Company in October 2014.

[58]           Thus, when Manulife concluded the Grievor was not disabled under the terms of the applicable SDR Plan and therefore not entitled to the enumerated “Stage Four” or LTD benefits, the Company argued the present dispute was between the Grievor and the insurance company to be determined exclusively by the civil courts, not by arbitrationunder the parties’ collective agreement.  This result was supported by article 26.04 which states that, “the Board of Arbitration shall not have any authority or jurisdiction to alter this Agreement or to deal with any matter not covered by this Agreement”, which the Company submitted conclusively established that an arbitrator is without jurisdiction to hear the Union’s grievance because the dispute over the Grievor’s eligibility for the insured benefits in its essential character “did not arise from the interpretation, administration or alleged violation of the collective agreement” but rather under an appropriate contract of insurance paid for by the Company through premiums, that was not incorporated within the collective agreement.

[59]           Second, in the event I found that neither the 1999 nor 2005 Youfirst Booklets established the terms of the applicable SDR Plan forming part of the collective agreement, but instead concluded the 1992 Consumers’ Gas SDR Plan continued in effect as of the date of the Grievor’s claimed entitlement to SDR Benefits, the Company submitted in the alternative that the Union “should be estopped from relying upon the 1992 Consumers Gas SDR Plan” in enforcing its strict rights on behalf of the Grievor in the matter.

[60]           According to the Company, the evidence shows that the 1999 and 2005 Youfirst Booklets were consistently and openly provided to new employees during their “onboarding” process which the Union must be imputed to have had knowledge of at the time.  Those Booklets were given to employees over the terms of at least six collective agreements between the parties (or their predecessors) covering a period of approximately 19 years.  The Agreed Facts were also conclusive that no grievance had ever been filed by the Union to challenge the accuracy the 1999 or 2005 Youfirst Booklet texts when it came to the description of the SDR or LTD plans, and that the Union had effective notice (through at least its knowledge of the seniority lists that were filed in these arbitration proceedings) of the names of employees in receipt of LTD benefits through a third party insurance company (instead of income continuation from the Company directly), without raising any concerns.  The Company also submitted that with reasonable diligence the Union should have known that members of its bargaining unit had been receiving LTD benefits from an insurance company since at least 1999, notwithstanding its acknowledgement that the Union was never provided with actual documentation from the Company identifying the bargaining unit employees who had independently negotiated direct settlements of their disputed disability claims with the applicable insurance company, without the assistance of the Union (per paras. 34 and 38 of the Agreed Statement of Facts).

[61]           Having permitted the Company to openly administer the SDR Plans, and specifically the LTD benefits referred to therein in accordance with the 1999 Enbridge SDR Plan and the successor 2005 Direct Energy SDR Plan for some 19 years without objection, the Company submitted the effect of the Union’s silence “was to represent that it would not insist upon the strict adherence to the 1992 Consumers’ Gas SDR Plan” but rather had acquiesced to the terms of the SDR Plans set out in those Youfirst Booklets, which the Company reasonably relied upon to its detriment in not negotiating an explicit change to the parties’ collective agreement on the matter.  Consequently, the Company pleaded, “it would indeed be inequitable to permit the Union to now resile from its 19-year representation and assert successfully its interpretation of article 15 as requiring the application of the Consumers’ Gas SDR Plan,” giving rise to the proper application of the equitable doctrine of estoppel to prevent the Union from insisting upon its strict rights in enforcing the Grievor’s claim under the 1992 Consumers’ Gas SDR Plan.

[62]           Third and as its final argument, which applied regardless of my conclusion on the applicable SDR Plan and its terms, the Company submitted that the Union’s grievance was simply out of time.  Section 6.09 of the 1992 Consumers’ Gas SDR Plan expressly stated that, “No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from the beginning of the Disability or Total Disability and any such action must be taken within the three years following the beginning of the Disability or Total Disability”.  This three-year limitation on the time for making a claim is substantially repeated in both the 1999 and 2005 Youfirst Booklets under the heading, “How to claim SDR benefits” which as reproduced above states in relevant part:  “No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from your date of disability, and any such action must be taken within three years following the date you first became disabled.”

[63]           On the Agreed Statement of Facts, the Grievor first became disabled as the result of a workplace injury to his lower back on October 19, 2010 for which he received benefits from the Workplace Safety and Insurance Board (“WSIB”) for a period of time, returning to modified duties on December 28, 2010 which ended on September 12, 2012 when the Company began paying the Grievor sick pay under article 15.05 of the collective agreement.  He became disabled again as a result of a motor vehicle accident on October 5, 2012.  Although Manulife determined that the Grievor’s earlier workplace injury on October 19, 2010 constituted “the date (he) first became disabled” for purposes of the SDR (or LTD) Plan, the Company submitted that the three-year time limit for taking “legal action against the Company for the recovery of any claim” was either October 19, 2013 (i.e. three years after his lower back workplace injury) or October 5, 2015 (i.e. three years following his injuries arising out of an automobile accident).

[64]           Since the Union did not file its grievance demanding SDR Benefits for the Grievor until September 9, 2016, which was almost three years after the express deadline for bringing an action arising out of the October 19, 2010 lower back injury and 11 months beyond the time limits for making a claim following the October 5, 2012 motor vehicle accident, the Company submitted that the Union’s grievance on behalf of the Grievor was expressly barred by the clear terms of Section 6.09 of the 1992 Consumes’ Gas SDR Plan (along with its successor Plans), and consequently must be dismissed on that basis alone.

[65]           In support of its submissions the Employer also referred to Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, London Life Insurance Co. v. Dubreuil Brothers Employees Assn., 2000 CanLII 5757 (ON CA), [2000] 49 O.R.  (3d) 766 (CA), Re Cocoa-Cola Bottling Ltd. and United Food & Commercial Workers International Union,1994 CarswellOnt 6094, [1994] O.L.A.A. No. 31, 37 C.L.A.S. 124, 44 L.A.C. (4th) 151 (Ont. Arb.) (Swan), Toronto Star v. IAM & AW, Local 235 (2004), 79 C.L.A.S. 265 (Ont. Arb.) (Kaplan), Canadian Broadcasting Corporation v. National Association of Broadcast Employees and Technicians, 1997 CanLII 1078 (ON CA), [1997] 155 D.L.R. (4th) 159 (Ont. CA), Re O.N.A. and Sault Area Hospital (2012), 219 L.A.C. (4th) 105 (Ont. Arb.)(Steinberg), Re Algoma Community Care Access Centre and ONA (Robinson), 2004 CarswellOnt 10159, [2004] O.L.A.A. No. 224 (Ont. Arb.) (Rose), Re Wabi Iron and Steel Corp. and USWA, Local 2020 (Perry), 2007 CarswellOnt 10603, 88 CLAS 352 (Ont. Arb.)(Hetz), Owen Sound (City) Commissions of Police v. Police Assn. (Owen Sound), 1984 CarswellOnt 2395, [1984] O.L.A.A. No. 49, 141 L.A.C. (3d) 46 (Ont. Arb.)(Picher),Re Tembec Industries Inc. and IWA-Canada, Local 1000, 2003 CarswellOnt 9809, 73 C.L.A.S. 136 (Ont. Arb.)(Marcotte), Westfair Foods Ltd. v. U.F.C.W., Local 401, 2001 CarswellAlta 1921, 65 C.L.A.S. 211, 99 L.A.C. (4th) 117 (Alta. Arb.)(Hornung), Re Maple Leaf FreshFoods (Brandon) and UFCW, Local 832, 2010 CarswellMan 874, [2010] M.G.A.D. No. 38, 104 C.L.A.S. 113 (Man. Arb.)(Wood), Re Federated Co-operatives Assn. Ltd. and UFCW, Local 649 (2011 H0-08), 2014 CarswellSask 829, 121 C.L.A.S. 349 (Sask. Arb.)(Wallace), Uniroyal Goodrich Canada Inc. v. U.S.W.A., Local 677, 1998 CarswellOnt 5570, [1998] L.V.I. 2973-4, 54 C.L.A.S. 212 (Ont. Arb.)(Gorsky) and CAW – Canada, Local 127 v. Dajcor Aluminum Ltd., 2011 CarswellOnt 15752, [2011] O.L.A.A. No. 40, 105 C.L.A.S. 51 (Ont. Arb.) (Walters).

(b)               The Union

[66]           Counsel for the Union, Mr. Nyman, disputed all three grounds of the Company’s challenge to my jurisdiction or authority to properly adjudicate the Grievor’s claim for income replacement benefits under the SDR Plan.

[67]             First addressing the question of the applicable SDR Plan and its requirements at the time of the grievance dated September 9, 2016, the Union emphasized there was no evidence to support the conclusion that the Company (inclusive of its predecessors) ever provided the Union (or its forerunners) with a copy of an SDR Plan different than the 1992 Consumers’ Gas SDR Plan in effect when deregulation occurred in 1999 precipitating the split between the gas distribution function (through Enbridge Consumers’ Gas) and the installation, servicing and sales part of the business, initially through Enbridge Home Services in 1999 that was acquired by Direct Energy – Essential Home Services in or about 2002 and was continued as of October 2014 by Enercare Home Services.  In paragraph 45 of the Agreed Statement of Facts the Company conceded that, “from what Enercare has been able to determine, there were no discussions at the bargaining table from 2000 to the filing of the grievance” related to the SDR Plan.  The Union submitted that in the acknowledged absence of such discussions, the Company was unable to discharge its burden to show that the Union was notified of any changes (or proposed changes) from the 1992 Consumers’ Gas SDR Plan to any other form of SDR or LTD coverage which was the Company’s obligation under article 15.01 during negotiations for that and all succeeding collective agreements between the parties (and their predecessors) to the present date.

[68]           To highlight this point and the reasonable inferences drawn from the available documentary evidence, the Union noted that after deregulation in 1999, the new Enbridge Consumers’ Gas and CEP Local 975 negotiated amendments to article 15 that effectively replaced the then existing SDR Plan with a new Short Term Disability (or “STD”) provision which along with changes in article 14 regarding “Employee Benefits” indicated the parties to that first post-deregulation collective agreement dated April 1, 2000 to December 31, 2002 covering employees in gas distribution, had explicitly put their minds to establishing a new STD scheme that included changes to other benefit coverage under article 14 as well.

[69]           That did not occur in the first post-deregulation collective agreement between Enbridge Home Services and the same CEP Local 975 in effect from April 1, 2001 to March 31, 2003 where no changes were made to article 15 (or 14) providing for an SDR Plan or the identification of any new form of SDR or STD Plan.  This, according to the Union, supported a conclusion that the parties intended the then existing 1992 Consumers’ Gas SDR Plan to continue in the first and all subsequent post-deregulation collective agreements dealing with the installation, servicing and sales component of the business to the date of the current grievance and relevant collective agreement between Direct Energy – Essential Home Services and Unifor 975 dated April 1, 2014 to March 31, 2017, under which I derive my jurisdiction to determine the grievance in the instant case.  It was also submitted this result was the logical application of the successor rights provisions under section 69 of the Ontario Labour Relations Act, 1995, supra, where a contractual chain of entitlement to the 1992 Consumers’ Gas SDR Plan could be traced through all successive collective agreements covering the Grievor’s employment and subsequent grievance dated September 9, 2016.

[70]           In the absence of evidence to the contrary that the Company was unable to furnish, the 1992 Consumers’ Gas SDR Plan must under section 69 of the LRA, thus be presumed to continue for purposes of the present grievance, according to the Union.  In reviewing the terms of the 1992 Consumers’ Gas SDR Plan, which were expressly incorporated into the collective agreement under article 15.01 of the applicable 2014 – 2017 collective agreement which states, “The SDR Plan forms part of this collective agreement”, the Union submitted that an arbitrator clearly had primary jurisdiction to interpret and apply the terms of the SDR Plan, including the question of whether the Grievor was entitled to the benefits under that Plan.  This express incorporation by reference of the then existing SDR Plan as a term of the collective agreement, undermined the Company’s claim that the SDR Plan constituted a Category 3 type of benefit limited to the Company’s obligation to maintain premium payments to an insurance company for the negotiated level of coverage.  Rather, the Union asserted that the provisions of article 15.01 and express incorporation of what could only be the 1992 Consumers’ Gas SDR Plan, contemplated either or both of “Category 2” and/or “Category 4” under the Brown and Beatty classification system, that in both cases supported the jurisdiction of an arbitratorto determine disputes of the present nature where the Company (through its insurer) has denied coverage to the Grievor for the negotiated SDR Benefits.

[71]           Second, the Union challenged the Company’s claim that in the event I found that the 1992 Consumers’ Gas SDR plan was applicable in the present case, that the equitable doctrine of estoppel intervened to prevent the Union from insisting upon its strict legal rights in the circumstances.  While not disputing the underlying precepts of the doctrine requiring the party relying on it to show:  (a) the existence of a clear, sometimes called “notorious” representation (that could be through the silence of a party in some instances) of a practice, policy or interpretation of a provision of the collective agreement that was contrary to an express terms or terms in that provision; and (b) the demonstration of actual (as opposed to theoretical) detrimental impact on the relying party, the Union denied the existence of an estoppel to prevent application of the strict contractual provisions incorporating the 1992 Consumers’ Gas SDR Plan for the following reasons.

[72]           In the Union’s submission the evidence did not support the finding of a clear, if any, representation made by the Company (or its predecessors), of a practice or interpretation of the collective agreement that conflicted with an express applicable term.  In this regard the Union noted that contrary to article 15.01 of the collective agreement that a copy of the SDR Plan “has been supplied to the Union”, in fact the evidence was conclusive that other than the 1992 Consumers’ Gas SDR Plan clearly known to the parties (or their predecessors) for many years prior to deregulation in 1999, there was nothing in the Agreed Statement of Facts to suggest the Company ever provided a copy of any alternate SDR Plan to the Union in the course of any bargaining session between the parties from 1999 to the 2014 – 2017 collective agreement.  The purpose of a provision like 15.01, with its express requirement for the Company to supply the Union with a copy of the current SDR Plan, is to open the door to contract negotiations between the parties in the event the Company wanted to make material changes, according to the Union.  That failure deprived the Union of a negotiating opportunity that is contemplated under article 15.01, which the Union submitted could not now be relied upon to the benefit of the Company.

[73]           To the extent the Company now argued its unilateral introduction of the Youfirst Booklets issued to new employees during their “onboarding process”, beginning in 1999 by Enbridge and continuing in 2005 by Direct Energy constituted a clear representation of a practice that was contrary to the provisions of the collective agreement, the Union noted the following:  (a) that there was no evidence the Union ever received a copy of any Youfirst document identified as setting out the terms of the SDR Plan then in operation; and (b) notwithstanding paras. 34 and 35 of the Agreed Statement of Facts identifying employees who were receiving LTD, and the settlement of at least two claims by employees with the insurer, the Union had no knowledge of those circumstances other than the names of employees on the seniority list identified in para. 36 of the Agreed Facts (and an accompanying seniority list) who were not at work because of an LTD absence, which it was submitted the Union would not consider noteworthy since the seniority list did not indicate that the employees were receiving LTD through an insurance company as opposed to directly from the Company, nor did it disclose any of the terms of the benefit coverage contrary to the 1992 Consumers’ Gas SDR Plan.

[74]           The Company’s primary contention that the Union should have known that the Youfirst Booklets in both the 1999 Enbridge and 2005 Direct Energy SDR Plans described a Category 3 type of benefit from the statement in those Booklets that, ‘Stages Three and Four of the SDR Plan are currently provided through the insurance company” (emphasis added) was also challenged by the Union because, in the Union’s submission, there was nothing inconsistent with the  Company’s obligation to provide the SDR Plan benefits while at the same time limiting its own exposure by insuring its potential loss through an insurance company.  In this regard the Union emphasized that even if I found the 1999 and 2005 Youfirst Booklets described the terms of an SDR Plan or Plans that were binding on the Union, there was nothing in the language of those Booklets excluding the Company’s continuing responsibility for the SDR Plan benefits related to income protection for employees who had sustained a long term disability, even where the Company had paid the premiums for a policy of insurance to cover its own exposure to that liability.  The fact that the Booklets used the word, “currently” in stating that Stages Three and Four of the SDR Plans were provided through an insurance company, did not preclude the Company’s ability to exercise its discretion to cease paying such premiums at any time in order to come up with an alternate form of funding for its potential liability for such claims.  In the absence of clear language in the collective agreement or in the Youfirst Booklets indicating that the Company’s liability for such benefits was limited to the payment of premiums alone to an insurance company providing the negotiated level of coverage, the Company could not characterize the SDR Plans described in the Youfirst Booklets as a Category 3 obligation under the Brown and Beatty typology, according to the Union.

[75]           Thus in the foregoing circumstances, the Union contended its silence or failure to file a grievance to challenge the Company’s unilateral introduction of the YoufirstBooklets issued to new employees from 1999 through the next six collective agreements covering a timeframe of approximately 19 years, could hardly be unexpected because nothing in those Booklets contradicted any of the essential terms of the Company’s obligations under the subsisting 1992 Consumers’ Gas SDR Plan and article 15.01 of the collective agreement.  As such the Union submitted the Company failed to establish a clear, unambiguous representation arising out of the Union’s silence in reaction to the Youfirst Booklets, which was a necessary first step in supporting the application of the doctrine of estoppel in preventing the Union from insisting on the Grievor’s strict rights to the negotiated SDR benefit coverage.

[76]           Finally, the Union disputed the Company’s submission that regardless of whether the 1992, 1999 or 2005 SDR Plans applied in the circumstances of the present case, the Union’s grievance must be dismissed because it was filed by the Union outside of the express time limits mandated under those Plans for bringing such claims.  Whether the Grievor’s disability occurred on October 9, 2010 (when he suffered a lower back workplace injury for which he initially received WSIB benefits) or October 5, 2012 (as a result of a motor vehicle accident), the Company asserted that his claim was many years beyond the mandatory three-year time limit for the bringing of an action under the SDR Plan when the Union filed his grievance dated September 9, 2016, and consequently not arbitrable.

[77]           However, the Union answered that both of those dates (the earlier one having apparently been relied upon by Manulife in rejecting the Grievor’s LTD claim on August 25, 2015 and his later appeal of that decision on October 15, 2015) are not appropriate for measuring the three- year time limit under the SDR Plan.  To do so, in the Union’s submission, would lead to an absurdity because the Grievor was not advised to apply for LTD benefits by Manulife until October 8, 2014 which was after the three-year period that it later applied against the Grievor’s claim (per para. 17 of the Agreed Facts).  Moreover, the Grievor’s full salary was continued from the date of his initial workplace injury “until approximately April 18, 2016” that the Company claimed was “in error”, notwithstanding that, “the Grievor was not advised that such payments were an error [but rather] advised the Grievor that [the Company] continued to pay “in good faith”” (per para. 19 of the Agreed Statement of Facts).   Even then the Grievor received LTD or income replacement benefits calculated at 66 2/3% his usual rate of pay until July 18, 2016 when, “Enercare cease paying STD benefits to the Grievor” (also at para. 19).

[78]           In order to avoid such an absurd result, the Union submitted the proper interpretation of the commencement date for the purpose of measuring the limitation period under either the 1992 or 1999/2005 SDR Plans was the date that the Grievor engaged the claims procedure, when he knew or ought to have reasonably known he would likely suffer a potential reduction or loss of income. According to the Union, that date could have been October 8, 2014 when the Grievor was advised to apply for LTD or on April 18, 2016, when his salary was reduced to 66 2/3% of its usual rate or on July 18, 2016 when his salary was cut off entirely.  In all cases, the Union’s grievance dated September 9, 2016 was well within the three-year time limit for bringing its claim to arbitration.

[79]           In the alternative, the Union submitted that the Company’s failure to challenge the timeliness of the Union’s September 9, 2016 grievance which it asserted was not raised throughout the grievance procedure up to and including its referral to arbitration, but rather has only been pursued by the Company in claiming that an arbitrator is without jurisdiction to hear the matter (which the Union further alleged it hadn’t received advance notice of until just before the first hearing date in this case), that it was simply too late to raise the issue which the Company, through its conduct, had waived.  And in the further alternative, the fact that the Company continued paying the Grievor his full salary until April 18, 2016, supported a claim that the Company was now estopped from denying the claim on the grounds of timeliness by virtue of its own conduct in lulling the Grievor to a false sense of security on the matter, thereby inducing the Grievor to forgo initiating any action against the Company while he continued to receive his full salary.

[80]           Nevertheless, even if the Union’s grievance was filed beyond the time limits of the applicable SDR Plan, the Union submitted I had the authority and ought to apply the discretion granted to arbitrators by section 48(16) of the LRA to extend the time for filing the grievance.  Except where the collective agreement states it does not apply, that subsection permits arbitrators to extend the time for taking any step in the grievance procedure, “where the arbitrator…is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension”.  The exercise of such discretion was appropriate in the present case where: (a) it was submitted that the delay in filing the claim was primarily attributable to the Company’s conduct in continuing the Grievor’s salary (purportedly by mistake or “in good faith”) beyond the three-year time limit; and (b) the Company could point to no substantial prejudice suffered by the Company as a result of the extension, while the consequences to a disabled Grievor was of great significance at a time of understandable vulnerability due to his inability to work.

[81]           The Union also relied upon the following authorities in support:  Eacom Timber Corporation, Timmins Division and United Steelworkers Local 1-2010  (USW), 2017 CanLII 61490  (ON LA) (Goodfellow), Re Domtar Inc. and CEP, Local 74, 2002 CarswellOnt 9328, 68 C.L.A.S. 199 (Ont. Arb.)(Herman), Re Lac des Iles and USW (Room Sharing), 2015 CarswellOnt 13854, 124 C.L.A.S. 258, 258 L.A.C. (4th) 327 (Ont. Arb.)(Randall), Ontario (Attorney General) v. Assn. of Law Officers of the Crown, 2006 CarswellOnt 11581, 151 L.A.C. (4th) 409, 86 C.L.A.S. A178 (Ont. Arb.)(R. Brown), Alcor Investment Group Inc. and Anthony Kliankis, 2003 CanLII 38213 (ON LRB)(Silverman) and Re Niagara General Hospital and O.N.A., 1982 CarswellOnt 1881, [1981] O.L.A.A. No. 2, 1 L.A.C. (4th) 1 (Ont. Arb.)(Schiff).

VIII.   Reasons for Decision

(a)               What is the Applicable SDR Plan and Its Obligations?

[82]           The identification of the applicable SDR Plan and the question of whether that Plan falls within Category 3 of the Brown and Beatty classification system limiting the Company’s obligation to pay premiums for a policy of insurance coverage, as urged by the Company, or a different Category or Categories requiring the Company to be primarily responsible for the payment of the negotiated benefits to the Grievor in the present case, as submitted by the Union, are the first issues raised by the foregoing facts and submissions.

[83]           If the Plan describes solely a Category 3 type of obligation, the arbitral jurisprudence indicates I do not have jurisdiction to decide the matter where the Company has paid the appropriate premiums to an insurance company to provide the negotiated benefit coverage.  However, I have jurisdiction to determine disputes if the SDR Plan falls within Category 2 or Category 4 or combined Categories including one of those two.

[84]           The proper classification of an ancillary document within one or another of the Brown and Beatty categories, nonetheless, is ultimately determined by interpreting the terms of the collective agreement which is always the primary source of the arbitrator’s authority, as Arbitrator Swan noted in Re Cocoa-Cola Bottling Ltd. and United Food &Commercial Workers International Union, 1994 CarswellOnt 6094, [1994] O.L.A.A. No. 31, 37 C.L.A.S. 124, 44 L.A.C. (4th) 151 (Ont. Arb.) at paras. 8 – 9:

¶ 8.         Many of these cases take as a starting point the discussion of the issue in Brown and Beatty, Canadian Labour Arbitration, 3rd ed., looseleaf, para. 4:1400.  That analysis, as it is found in one edition or another of this textbook, appears in most of the cases as a list of four categories into which documents ancillary to the collective agreement, in the nature of insurance plans, might be fit by virtue of their relationship to the collective agreement itself.  The categories are as follows:

1.   A plan or policy not mentioned in the collective agreement.

2.   A collective agreement that specifically provides for the payment of benefits in certain circumstances.

3.   A collective agreement which provides only for the payment of premiums for an insurance plan.

4.   A policy or insurance document incorporated by reference into the collective agreement.

¶ 9.         While these categories are of assistance, it is necessary in every case to assess the particular provisions of the collective agreement which the parties themselves have negotiated, and to understand them in the general context of the collective agreement.  For the purposes of the present case, it might be more helpful to approach that problem by asking whether it was within the contemplation of the parties that the employer should bear the primary liability for the payment of long-term disability benefits, whether or not it reinsures its risk by taking out a long-term disability policy from an insurance carrier, or whether the parties intended that the employer could entirely meet its obligations under the collective agreement by negotiating and paying for a long-term disability insurance plan, to be administered by a carrier who would be a stranger to the collective agreement, the terms of which plan would not be amenable to the  arbitration process.  This recasting of the question to be asked is appropriate because, the collective agreement and the ancillary insurance document here at issue do not fit readily into any of the four relationships specified by Brown and Beatty.

[Emphasis added]

[85]           Also at paras. 14 – 15, Arbitrator Swan focusing on the intention of the parties gleamed from the collective agreement, stated the following in explaining the interplay of a clause in a collective agreement that sets out the details of the benefit overage that the parties have agreed upon with the employer’s purchase of an appropriate disability plan from an insurance company, and the employer’s obligations for the direct payment of those benefit if the insurance company refuses to pay on an employee’s claim:

¶ 14.      …In context, therefore, the parties must have intended to set out the details of the benefits in the letter of agreement as minimum standards by which to judge the employer’s negotiation of a long-term disability plan, rather than to establish a primary liability on the employer to pay these premiums whether or not the insurance company, interpreting its policy, agrees to pay them.

¶ 15.        Such provisions must be understood in context, because insurance programs are a standard way for parties to a collective agreement to provide benefit coverage for employees covered by that agreement.  For the employer, they offer a mechanism for commuting the risk of providing these benefits to a certain regular premium payment, and it is unlikely that an employer would willingly place itself in a position of both paying premiums to an insurer to have these benefits provided, while taking on primary liability for the payment of the benefits in this case.

            [Emphasis added]

[86]           Consistent with the foregoing observations, the Ontario Court of Appeal has elaborated on the determination of an arbitrator’s jurisdiction in cases of the present nature in London Life Insurance Co., supra. That case arose in the context of collective agreement language that was found by the arbitrator to have expressly limited the employer’s obligation to pay premiums for a policy of insurance satisfying the negotiated level of benefit coverage and to maintain that policy during the term of the collective agreement.  Notwithstanding the arbitrator’s conclusion that the applicable contractual language fell within Category 3 of the Brown and Beatty classification system that only requires an employer to pay premiums for an insurance policy providing the negotiated benefits (which on the facts the employer had satisfied), the arbitrator nevertheless held that the application of common law principles obliged the employer to be ultimately responsible for paying the insured benefits, which was quashed on judicial review by the Ontario Divisional Court as an unreasonable outcome based on the arbitrator’s contrary interpretation of the relevant terms of the collective agreement.

[87]           On further appeal, the Ontario Court of Appeal unanimously upheld the Divisional Court’s decision, setting the framework for the appropriate analysis in disputes concerning the aribtrability of benefit entitlement claims as follows at para. 10 (per Goudge, J. A.):

¶ 10.      On judicial review the Divisional Court approached the matter differently.  It acknowledged that arbitration jurisprudence has over the years developed a well understood method of deciding the aribtrability of benefit entitlement claims.  This involves determining into which of four categories the language of the particular collective agreement falls. These four categories were originally identified in Brown and Beatty, Canadian Labour Arbitration, 3^rd ed. (1988) and are as follows:

1.   where the collective agreement does not set out the benefit sought to be enforced, the claim is inarbitrable;

2.   where the collective agreement stipulates that the employer is obliged to provide certain medical or sick-pay benefits, but does not incorporate the plan into the agreement or make specific reference to it, the claim is arbitrable;

3.   where the collective agreement only obliges the employer to pay the premiums associated with an insurance plan, the claim is inarbitrable; and

4.   where the insurance policy is incorporated into the collective agreement, the claim is arbitrable.

[Emphasis added]

[88]           Mr. Justice Goudge then went on to summarize the applicable law in cases of this nature at paras. 19 – 21:

¶ 19.      In my opinion, the arbitrator erred in his interpretation of the common law.   Rather, that law properly applied yields the conclusion that this dispute does not arise out of the collective agreement and hence is beyond the exclusive jurisdiction of the arbitrator.

¶ 20.       It was in [Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929] that McLachlin J. for the Supreme Court of Canada first elaborated the concept of the exclusive jurisdiction of an arbitrator as encompassing those disputes which arise out of the collective agreement.  While the arbitrator’s jurisdiction also includes certain tasks specifically imposed by legislation (such as enforcement of the Employment Standards Act, R.S.O. 1990, c. E. 14, where there is a collective agreement)k none of those are relevant to this case.  However, the collective agreement and the disputes arising from it remain the core of that exclusive jurisdiction. The question is how such disputes are to be defined.  In Weber, McLachlin J. made clear that not every dispute between an employer and employee, nor every dispute that arises in the workplace comes within that exclusive jurisdiction.  At p. 957 she posed the fundamental issue in these words:

The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

¶ 21.      Bastarache J. elaborated on the Weber approach in determining aribtrability and jurisdiction in Regina Police Assn Inc. v. Regina (city) Police Commissioners, 2000 SCC 14 (S.C.C.)(CanLII).  At para. 25 he put it this way,

 To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements:  the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character.  This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed:  see Weber, supra, at para. 43.  Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject-matter that is covered by the collective agreement.  Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations.  It is clear that the collective agreement need not provide for the subject-matter of the dispute explicitly.  If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide [Emphasis added.]

[Emphasis added]   

[89]           Applying the above-mentioned two-step analytical framework in assessing the Company’s objection to my jurisdiction in the present case, with its primary purpose in ascertaining the intentions of the parties from the provisions of the collective agreement considered as a whole and in proper context, it is evident that the essential character of the dispute before me concerns the Company’s obligations in connection with the provision of a Sickness, Disability and Rehabilitation (SDR) Plan (which includes LTD or income replacement benefits) for employees who are unable to work due to illness or injury.  Is the Company’s responsibility limited to paying premiums for an insurance policy providing the negotiated benefit coverage thereby ousting an arbitrator of jurisdiction where the level of the negotiated coverage has been satisfied? Or are the Company’s obligations for benefit coverage described by Categories 2 or 4 in the Brown and Beatty typology (or a combination of Categories including at least one of those two), in which case I have jurisdiction under the collective agreement to determine the dispute?

[90]           To summarize from the above jurisprudence, the focus of my inquiry into those questions must be on the terms of the 2014 – 2017 collective agreement itself under which I derive my authority with a view to determining what was in the contemplation of the parties from the language they have agreed upon; particularly under article 15 which establishes the primary obligations in connection with the SDR Plan.

[91]           In my opinion, article 15 of the collective agreement is generally clear in evidencing the parties’ intentions.  Before considering article 15.01 that expressly incorporates the terms of an SDR Plan into the collective agreement, it is noteworthy that the body of the remaining provisions in the article describe the essential negotiated terms of the SDR Benefits Plan that contemplates the Company’s direct and active involvement in its administration and responsibility for payments under the Plan.

[92]           In this regard article 15.03 states, “The Company reserves the right to demand reasonable proof of illness before paying any benefits”, expressing the parties’ intention that the Company is entitled to that information in its own right, and bringing with it the need to properly assess the medical evidence for determining the employee’s eligibility, “before paying any benefits”, which likewise infers that the Company is ultimately responsible for the actual payment.  That article also obliges the Company to, “reimburse the cost of any medical certificate requested” in satisfying its demand for “reasonable proof of illness”, reinforcing its active involvement and payment obligations by the Company in that process as well.

[93]           Consistent with that interpretation, article 15.04 provides the detailed terms of the parties’ agreement with respect to the level of benefit coverage “that will be paid in accordance” with a very detailed, agreed-upon schedule tied to the employee’s service which was the product of the direct negotiations between the parties.  In context this language also points to the Company as bearing the primary responsibility for making those payments.

[94]           Then article 15.05 obliges an employee who is absent from work on account of illness or other causes for which the employee is eligible for SDR Benefits to “notify the employee’s immediate manager (or designate) prior to the start of the absence or as soon as physically possible indicating the duration and nature of such illness”, failing which it is the Company alone that is conferred the express discretion to delay the calculation of the appropriate amount of payment under the benefit plan, “to commence only from the time that proper notification is received”.  And in this regard the party that “received” the “proper notification” is the Company, not a third party insurer.

[95]           On the face of such language alone, it is apparent that disputes between the parties on whether the Company’s demand of “reasonable proof of illness” for purposes of determining employee eligibility before “paying any benefits” under article 15.03 in accordance with the agreed-upon schedule of payments in article 15.04 and/or a question of whether the  Company is obliged to pay for “any medical certificate” requested under article 15.03, and/or over the legitimacy of a decision by the Company to delay the employee’s receipt of SDR Benefits for the alleged lack of proper notice of absence by the employee in the exercise of the Company’s discretion conferred by article 15.05, are explicit terms of the collective agreement that an arbitrator has inherent jurisdiction to decide in the event of any disputes that clearly arise from “the interpretation, application, administration or violation of the collective agreement” itself (per McLachlin, J. in Weber v. Ontario Hydro 2 S.C.R. 929 at p. 957).  It is my view that such explicit contractual language initially describes a Category 2 type of benefit under the Brown and Beatty typology, stipulating that the Company is obliged to assess the eligibility of employees and, if considered eligible, to then be responsible for paying the income protection benefits listed therein, without considering the incorporation of any of the specific SDR Plan details within the collective agreement.

[96]           The question to ask in the foregoing contractual context, is whether article 15.01 changes that result by imposing an SDR Plan purportedly ceding the Company’s explicit authority under articles 15.03, 15.04 and 15.05 to an insurance company through the payment of premiums for a policy of insurance providing the minimum SDR benefit coverage negotiated by the parties, which is the position advanced by the Company on the strength of statements made in the 1999 and 2005 Youfirst Booklets issued to new employees.  Certainly there is nothing in article 15 itself to support the Company’s ability to limit its obligations to the payment of premiums for the purchase of an appropriate insurance policy without the agreement of the Union, which is to be viewed in contrast to the language the parties have used to describe the Company’s obligations and entitlements in connection with the provision of “Employee Benefits” under article 14, also reproduced above.  Where the parties have intended that the Company could fulfill its obligation to provide its employees with certain medical benefits, group life insurance and a dental plan by paying the premiums for a policy of insurance, they have done so with explicit contractual language to that effect.

[97]           Thus under article 14.03 entitled, “Hospital, Surgical, and Medical Benefits”, the parties have expressly confined the Company’s obligation in connection with the ability of employees to “enroll in the provincial Government’s Health Insurance Plan in conformity with Provincial Legislation” to “pay 100% of the cost of such plan” and only in the event of the elimination of the Government’s Plan is the Company obliged to “provide comparable coverage” at its own expense.  Similarly, article 14.04 limits the Company’s obligation to provide eligible employees with life insurance that will pay “$40,000 to the beneficiary in the case of the death of a participating employee” by paying “100% of the cost for such plan”, thereby limiting the Company’s exposure for providing the actual $40,000 payment. And in the case of a benefit to cover dental services for employees who have more than three months of employment, article 14.05 expressly qualifies the Company’s responsibility to “pay 100% of the premiums of such [dental service] plan” only, as opposed to paying for those benefits directly.

[98]           Such contractual language demonstrates that where the parties have intended that the obligation to provide employees with certain health and welfare benefits will be satisfied by the Company’s payment of premiums alone to an insurance company for the negotiated level of benefit coverage, thereby establishing a Category 3 type of requirement under the Brown and Beatty classification scheme, they have done so clearly in the primary language of the collective agreement, as in articles 14.03, 14.04 and 14.05.  But they have not done so in article 15 when dealing with the Company’s undertakings in connection with Sickness, Disability and Rehabilitation (SDR) Benefits, which in my view is a significant insight into the parties’ intentions in the matter.

[99]           Rather, as a provision containing no substantive detail on the contemplated terms of the SDR Plan itself, article 15.01 of the collective agreement states that employees “will receive Sickness, Disability and Rehabilitation Benefits in accordance with the terms and conditions outlined in the SDR Plan Text, a copy of which has been supplied to the Union.  The SDR Plan forms part of this collective agreement (PT)” (emphasis added).  Three observations may be made of this provision impacting its proper interpretation and interrelationship with the express substantive terms of the other subparagraphs of article 15.  

[100]      First, as a general provision with no details other than to identify an ancillary document known as an “SDR Plan” that expressly “forms part of this collective agreement”, the interpretation of article 15.01 is subject to the principle that a specific provision (as set out in the other sub-paragraphs of article 15) takes precedence over a general one.  This canon of contract interpretation was described as follows by Ronald M. Snyder in Collective Agreement Arbitration in Canada, 6th ed. (LexisNexis Canada Inc., 2017) at para. 2.21:

¶ 2.21.   It is a general rule of interpretation that a specific provision takes precedence over a general one, although such an analysis is not required where the two provisions are harmonious.  Among other things, this principle means that the preamble cannot override a specific provision of the agreement, and explains why a management rights clause cannot be used to undermine or negate specific provisions of the agreement.  A general provision, however, may provide guidance regarding how the parties should approach the interpretation of a particular clause.

[101]      The foregoing principle supports a presumption that any interpretation of the terms of the ancillary document known as the SDR Plan referred to in  article 15.01 would be consistent with the specific stipulations in the substantive contractual provisions that follow, and in particular with articles 15.03, 15.04 and 15.05 that, as reviewed above, indicate the active participation by the Company in determining an employee’s eligibility for SDR benefits as well as its direct responsibility for the payment of those benefits.

[102]      Consequently, to the extent the SDR Plan Text (in the form of the 2005 Youfirst Booklet advanced by the Company) is contrary to or purports to override the negotiated agreement of the parties reflected by the sub-articles within article 15 concerning its administration and responsibility for the payment of benefits by the Company, it is my opinion that such contradictory provisions cannot be inferred, but rather must be stated in reasonably clear and unequivocal terms to override what would otherwise be negotiated obligations of the Company under the collective agreement. In the present case, for the reasons stated above, I find that the obligations included within the substantive text of articles 15.03, 15.04 and 15.04 contemplate the Company’s direct administration of the substantive aspects of the obligation to provide a Sickness, Disability and Rehabilitation Plan, including determinations affecting the eligibility of employees to claim the negotiated entitlements under the Plan, and the primary responsibility for the actual payment of the required benefits themselves.

[103]      Second, article 15.01 is explicit that the benefits received by the employees will be “in accordance with the terms and conditions outlined in the SDR Plan Text, a copy of which has been supplied to the Union.”  Under the general rubric of, “the party that asserts must prove”, the onus is on the Company to show on a balance of probabilities standard that a copy of what it claims to be the operative SDR Plan for purposes of the present grievance, “has been supplied to the Union”.  On this point, there is no evidence of the Company ever providing what it asserts to be the operative “2005 Direct Energy SDR Plan” (or its predecessor “1999 Enbridge SDR Plan”) included within the “2005 Youfirst Booklet” (or the prior “1999 Youfirst Booklet”).  Instead, para. 45 of the Agreed Statement of Facts is consistent with the Union’s contention that, “from what [the Company] has been able to determine, there were no discussions at the bargaining table from 2000 to the filing of the grievance” on the topic of the SDR Plan.

[104]      More importantly is the express requirement of article 15.01 that the document supplied to the Union in fact sets out the “SDR Plan Text” in effect between the parties, which must be interpreted as being the actual SDR Plan itself, because that document then becomes a primary source of defining the parties’ entitlements and obligations. To the extent the Company points to the 2005 Youfirst Booklet (or its 1999 predecessor) as containing the terms of the applicable “SDR Plan Text” establishing the Company’s purported limited obligation to pay the premiums for an LTD policy of insurance coverage for what those Booklets identify as “Stage Three” and “Stage Four” under the SDR Plan, the evidence before me is conclusive that both the 1999 and 2005 versions of the “Youfirst” Booklets are not in fact actual SDR Plans at all.  Rather, there is a disclaimer on the first page of each of the 1999 and 2005 Youfirst Booklets warning its readers that, “This booklet provides you with an overview of your Benefits Program…”, and that, “while every effort has been made to ensure the accuracy of the information provided…[the] complete terms of any coverages are contained within the individual group contracts, policies and Pension Plan documents…[that are]…governed by the provisions of those documents, [Company] policy and relevant government legislation.”  This disclaimer goes on to state that, “If there is any discrepancies (sic) between the information herein and the official documents, the terms of the official documents apply”.  And, while the disclaimer notes it is the Company’s intention that the programs and plans described in the 1999 and 2005 Youfirst Booklets “continue indefinitely”; nevertheless, “The Company reserves the right to modify or discontinue any benefit plan or program at any time”, which purports to be an unfettered prerogative to cancel all benefit coverage for employees whenever it wants.

[105]      There is no evidence before me, or even a suggestion in the Agreed Statement of Facts that the actual contractual documents constituting the entire and “official” SDR Plan purportedly set out in the Youfirst Booklets was ever supplied to the Union.  Nor was one filed before me.  The only relevant evidence related to the Grievor’s claim for SDR benefits is a copy of the 2005 Youfirst Booklet that Direct Energy gave to its employees during their “onboarding” process (that likely did not include the Grievor who was already employed by that date), which by its express terms is merely an “overview” of the actual SDR Plan details that is subject to whatever is stated in the “official documents” and “Company policies” governing the Plan.

[106]      Given the specific disclaimer in the 2005 Youfirst Booklet, which the Company asserts as the document establishing the operative SDR Plan Text when the Grievor claimed Sickness, Disability and Rehabilitation Plan payments, I must conclude that even if the Company had established in the evidence that it provided the Youfirst Booklets to the Union, the document does not comply with the Company’s obligations under article 15.01 of the collective agreement.  That article, reasonably interpreted, requires the Company to supply the Union with the actual SDR Plan Text, not an “overview” of the “official documents” constituting the SDR Plan itself, which is all that the 2005 YoufirstBooklet (and its predecessor) provides, that the Company further “reserves the right to modify or discontinue…at any time”.  The idea that the Union would likely agree to a term of its collective agreement (within which the SDR Plan is incorporated) giving the Company the unilateral right to “modify or discontinue” any of the Company’s commitments contained within the SDR Plan, seems such an extraordinary proposition to require the Company to show, in clear terms, the intention of the Union to be bound by that qualification, for which the evidence is entirely lacking.

[107]      Rather, the evidence in the form of the Agreed Facts and documents before me supports the finding that the only SDR Plan ever supplied to the Union (or its predecessors) by the Company (or its predecessors) complying with the Company’s obligations under article 15.01, was the 1992 Consumers’ Gas SDR Plan in effect at the time of deregulation in 1999, which was the actual SDR Plan known to both parties.  Without the showing of any other SDR Plan supplied to the Union, I must conclude that the 1992 Consumers’ Gas SDR Plan (as expressly incorporated in accordance with article 20.1 of the pre-deregulation 1993 – 1995 collective agreement between The Consumers’ Gas Company and CEP, Local 513, reproduced above) continued in effect after deregulation in 1999 by virtue of the successor rights provisions of subsection 69(2) of the LRA (or its equivalent in effect at that time).  Under that subsection a chain of continuity of the 1992 Consumers’ Gas SDR Plan through the successive collective agreements covering employees engaged in the installation, servicing and sales part of the Company’s original business, can be traced from the first Enbridge Home Services collective agreement dated April 1, 2001 to March 31, 2003 governing the Grievor’s initial employment to the 2014 – 2017 collective agreement under which I derive my authority to determine the Union’s’ grievance dated September 9, 2016.

[108]      The fact that Enbridge Gas and the CEP, Local 975 negotiated amendments to the collective agreements after 1999 covering the gas distribution employees (effectively changing the SDR Plan to one covering Short Term Disability only), while Enbridge Home Services and CEP, Local 975 did not make changes to the provisions of article 15 of the collective agreement referring to the “SDR Plan”, supports the Union’s submission that the parties to what evolved into the 2014 – 2017 collective agreement, did not intend to alter the entitlements and obligations of the parties from the then existing 1992 Consumers’ Gas SDR Plan to the present date.  Since the 1992 Consumers’ Gas SDR Plan was incorporated as a term of the collective agreement under article 15.01, the Company was required to negotiate any changes to the SDR Plan if it wanted to alter its primary responsibility for the actual SDR Plan benefits by paying the premiums for an insurance policy.  It could not, through unilateral action, simply change the terms of the existing 1992 Consumers’ Gas SDR Plan without the Union’s express consent during bargaining, which on the evidence I find never occurred.

[109]       The third stipulation of article 15.01 that, “The SDR Plan forms part of this collective agreement” leads the present analysis back to the essential question of whether the SDR Plan in effect at the time of the grievance is properly recognized as a Category 3 benefit plan under the Brown and Beatty classification system limiting the Company’s obligation to pay the premium costs of a policy of insurance providing the negotiated level of benefit coverage, thereby rendering the grievance inarbitrable before me, or falls within one or the other of Categories 2 and 4 in the Brown and Beatty typology, which the Ontario Court of Appeal in London Life Insurance Co., supra, has recognized as supporting the exclusive jurisdiction of an arbitrator appointed under the parties’ collective agreement to interpret and enforce.

[110]      Having determined from the foregoing analysis that the 1992 Consumers’ Gas SDR Plan continued in effect after the 1999 deregulation through to the 2014 – 2017 collective agreement under which I derive my authority, inasmuch as article 15.01 provides that the parties have agreed, “The SDR Plan forms part of this collective agreement”, I conclude that the 1992 Consumers’ Gas SDR Plan constitutes an ancillary document expressly incorporated into the collective agreement corresponding to Category 4 under the Brown and Beatty typology, thereby rendering its terms arbitrable before me.  This does not diminish the implications of my earlier determination that the language of article 15 of the collective agreement itself, without the express incorporation of the applicable SDR Plan, also contemplates a Category 2 kind of benefit entitlement in its own right.

[111]      In considering the relevant terms of the 1992 Consumers’ Gas SDR Plan to the question of my jurisdiction in the present case, it is significant that Section 1.03 of the SDR Plan states:  “The Plan may be amended or terminated only through mutual agreement between the Union and the Company”.  Given the status of that SDR Plan as forming part of the collective agreement in accordance with article 15.01 (which was numbered as article 20.1 of the 1993 – 1995 collective agreement in effect before deregulation), I find it was not open to the Company to change its terms as reflected in the 1999 and 2005 Youfirst Booklets without the express agreement of the Union during contract bargaining, which on the Agreed Facts never occurred.  To the extent the Company purportedly changed the 1992 Consumers’ Gas SDR Plan through its unilateral introduction of its Youfirst Booklets during the employee “onboarding” process, the provisions therein are unenforceable as terms of any collective agreement between the parties or their predecessors, particularly where those 1999 or 2005 Booklets do not include the actual SDR Plan that is claimed to be in effect at those times.

[112]      Rather, the parties have expressly agreed in Section 3.01 of the incorporated 1992 Consumers’ Gas SDR Plan that: “The Administrator of the Plan shall be the Companywhich shall determine all questions relating to the length of service, eligibility, rates and amounts of earnings, Benefit entitlement and all other matters required to be determined for the purposes of the Plan, except as provided in paragraph 6.06.  The decision of the Company on all matters relating to the administration, interpretation and application of the Plan shall be subject to the Grievance Procedure” (emphasis added).  Section 6.06 of that SDR Plan states that the “final adjudication of [the employee’s] claim for Benefits in excess of twenty-six weeks” is made by the Company, thereby conferring on the Company the right to determine eligibility of employees for long-term income replacement benefits, which is the situation facing the Grievor in the instant case.  The language of Section 6.07 then goes on to explicitly authorize the Union “to grieve any decision arising from the application of Section 6.06 whether or not it participated in the process”.  Those Sections are repeated below for ease of immediate reference.

6.06        In the event a Member disputes the Company’s final adjudication of his claim for Benefits in excess of twenty-six weeks, the Member’s entitlement to Benefits will be decided by a panel composed of a Physician appointed by each of the Company and the Member and a third Physician mutually agreeable to the other two Physicians.  The decision of the majority of the panel shall be final and binding on both the Company and the Member.

6.07        The Union will be involved in any appeal of the Company’s final adjudication under Section 6.06 whenever such case involves a Member of the Bargaining Unit.  The Union reserves the right to grieve any decision arising from the application of Section 6.06 whether or not it participated in the process.

[Emphasis added]

[113]      Given that the Union’s grievance dated September 9, 2016 is related to the Grievor’s eligibility for SDR Plan benefits, questions of eligibility as well as all matters related to the administration, interpretation and application of the incorporated SDR Plan are, by the express agreement of the parties reflected by Sections 3.01, 6.06 and 6.07, subject to the grievance procedure under the collective agreement. Consequently I conclude that I have jurisdiction to determine the present grievance because the dispute (to adopt the principles stated in London Life Insurance Co., supra, at para. 21) in its essential character “arises either explicitly, or implicitly, from the interpretation, application or violation of the collective agreement”, through its explicit incorporation of the terms of the 1992 Consumers’ Gas SDR Plan by virtue of article 15.01.

[114]      In coming to that result, I have reviewed the arbitration awards submitted by the Company in support of its various propositions, which are distinguishable on their own facts and different contractual terms from the circumstances before me.  The Company emphasizes the decision of Arbitrator Kaplan in Toronto Star, supra, who in the context of contractual language that provided comprehensive details of the employer’s commitment to provide long term disability coverage for its employees, but also stated that, “The Employer agrees to pay 100 per cent of the Short Term Disability Plan and Long Term Disability Plan”, held at para. 12 that, “having reviewed the relevant collective agreement provisions, there was no shared intention to make the denial of LTD a matter for grievance arbitration.”  Instead the arbitrator found that the parties’ “bargain entitles the employer to self-insure for LTD or pay premiums to a carrier [and it] has chosen the latter”.  Then having considered the features of the LTD plan set out in the collective agreement in the context of the provisions of the collective agreement as a whole, he concluded: “it is clear that the employer’s obligation is to pay the premiums” (also at para. 12).  In arriving at that conclusion the arbitrator expressly followed Arbitrator Swan’s viewpoint in Re Cocoa-Cola Bottling Ltd., supra, and in particular the quotation from paras. 9 and 15 of that arbitration decision, set out above, that while the Brown and Beatty categories “are of assistance, it is necessary in every case to assess the particular provisions of the collective agreement which the parties themselves have negotiated, and to understand them in the general context of the collective agreement”.

[115]       In the other arbitration decisions referred to by the Company touching on a dispute over the provision of employee benefits, each arbitrator came to a determination on whether the employer had fulfilled its obligations to provide a form of benefit coverage by paying the premiums for a policy of insurance or was directly responsible for the payment of those benefits, based on the arbitrators’ interpretation of the relevant contractual provisions considered as a whole.  Consequently, on that basis, Arbitrator Steinberg held in Sault Area Hospital, supra, where the language of the collective agreement stated that, “The Hospital agrees to pay 100% (or 75%) of the billed premiums towards” various forms of health and welfare coverage, that it was the language of the collective agreement itself “driving home the point that the Employer’s promise (under the applicable contractual provision) is not a promise to pay or provide benefits directly, but to fund, by way of premium payments, insurance coverage” (at para. 24).   Similarly, inAlgoma Community Care Access Centre, supra, Arbitrator Rose held that the medical emergency travel benefits in issue did not fall squarely within Brown and Beatty’s Category 3, but rather on his interpretation of the language and structure of the relevant contractual provisions that the benefit represented a hybrid of Categories 2, 3 and 4, thereby rendering the overall dispute arbitrable (per para. 16).  In another case dealing with an employee’s claim for short-term disability that had been denied by the insurer,Arbitrator Hetz concluded in Re Wabi Iron, supra, from his interpretation of the applicable language of the collective agreement that, “the parties intended for the company only to obtain insurance coverage to provide the benefits outlined in [the relevant contractual provision] and did not intend for the company to guarantee the benefits” (at para. 30).  In arriving at that conclusion the arbitrator explicitly followed, “the approach taken by Arbitrator Swan in Cocoa-Cola, supra,…that the true intention of the parties needs to be determined” from the terms of the collective agreement (also at para. 30).

[116]      I have adopted the same approach in analyzing the collective agreement before me, and in considering the factual circumstances surrounding the various purported SDR Plans. Having found that the 1992 Consumers’ Gas SDR Plan was expressly incorporated by reference as a term of the 2014 – 2017 collective agreement by article 15.01, and in the process rejecting the Company’s submission that the 2005 Direct Energy SDR Plan (or its 1999 predecessor) was applicable, it is clear that the parties’ shared the intention that the Company would be responsible for the payment of the benefits under the SDR Plan.  Whether the Company then decided to insure itself against that risk by entering into a contract with an insurance company is not contrary to the collective agreement, but its decision to do so does not insulate the Company from being primarily liable to the bargaining unit employees for the negotiated Sickness, Disability and Rehabilitation benefits.  Given my earlier finding that the language in the body of article 15 (independent of article 15.01) evidences the parties’ intention to establish a Category 2 benefit under the Brown and Beatty classification scheme, the addition of the express incorporation by reference under article 15.01 of the terms of what I have determined to be the 1992 Consumers’ Gas SDR Plan is consistent with and fortifies their mutual resolve that any disputes respecting the interpretation, administration and/or alleged violation of that SDR Plan would be within the exclusive jurisdiction of an arbitrator appointed under their collective agreement in the manner of a Category 4 type of benefit, as well.

[117]      Thus even if I agreed with the Company’s submission and accepted the language in the 2005 Youfirst Booklet as the appropriate SDR Plan which includes the statement that “the full premium cost associated with Stages Three and Four” are payable by the Company and that, “States Three and Four of the SDR Plan are currently provided through the insurance company”, the most that I could find is that a hybrid of Categories 2, 3 and 4 in the Brown and Beatty typology was created by the addition of those stipulations, when viewed in the context of the negotiated provision concerning the SDR benefits in article 15 of the collective agreement.  Similar to the conclusion reached by ArbitratorRose in Algoma Community Care Access Centre, supra, that specific combination of Brown and Beatty Categories retains the overall character of arising explicitly or implicitly from the interpretation, application, administration or violation of the collective agreement, and thus in the case of disputes between the parties concerning their respective rights and obligations, remains within the exclusive jurisdiction of an arbitrator.

[118]      Therefore, the Company’s first argument that its obligation to provide an SDR Plan for purposes of the present grievance is defined by the 2005 Youfirst Booklet issued by Direct Energy (or its 1999 Enbridge predecessor) which limits the Company’s liability to the payment of premiums for an appropriate policy of insurance coverage, must be denied.

(b)               Does the Equitable Doctrine of Estoppel Apply?

[119]      It is thus necessary to consider the Company’s second argument that even if the 1992 Consumers’ Gas SDR Plan continued in effect for purposes of the 2014 – 2017 collective agreement and is applicable in the grievance before me, that the equitable doctrine of estoppel nevertheless prevents the Union from relying upon its strict legal rights in the matter.

[120]      The parties filed a number of arbitration decisions describing the principles underlying the equitable doctrine of estoppel as applied in various situations, which are each distinguishable from the contractual language and factual circumstances presented before me, with limited utility for present purposes.  The principles underlying the doctrine are nevertheless well established by those authorities, as summarized by Arbitrator M. Picher in Owen Sound (City) Commissioners of Police, supra, at para. 21:

¶ 21.      …The doctrine of estoppel applies when a number of essential elements are established.  Firstly, there must be a course of conduct or a statement by one party to a collective agreement to the other which amounts to a representation that it will not insist upon the strict application of its rights under the agreement.  The representation must be made and be received as intended to alter the legal relations of the parties.  Secondly, the party to whom the representation is made must rely on it, and so change its position in reliance upon the representation that it would suffer prejudice if the representation were withdrawn, with a return to the enforcement of the strict rights of the parties under the agreement.  When the foregoing conditions are established a board ofarbitration may view either a grieving party or a responding party as estopped from advancing a condition inconsistent with that which it has previously adopted:  see Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 4 L.A.C. (3d) 236, 82 C.L.L.C. para. 14,163, 1981 CanLII 1888 (ON SC), 34 O.R. (2d) 385, sub nom. Re C.N.R. Co. et al. and Beatty et al. (Ont. Div. Ct.).   

[121]       The Owen Sound, supra, decision is often cited for the proposition that a representation supporting the first step in the establishment of an estoppel may be made by silence or conduct by the estopped party in failing to challenge a consistent practice that violates the collective agreement over a sufficient period of time to constitute a representation of its acquiescence in the matter; but only in narrow factual circumstances.

[122]      In that case, the employer police department adopted an erroneous interpretation of its obligations under the collective agreement concerning the calculation of sick leave credits for its officers, which was contrary to the negotiated contractual terms but had been consistently applied for at least 25 and possibly as many as 32 years, without the association bargaining agent ever challenging that practice.  One important consideration was also the fact that records setting out an employee’s accumulated sick-leave credits were kept by the staff sergeants in charge of each shift, and available for inspection by officers to show the number of days deducted for sick-leaves taken and days credited, which inquiring officers had openly accessed over the years.  Although the arbitrator made the express finding that the employer’s practice of calculating the sick-leave credits was contrary to the collective agreement, he concluded at para. 27 that “in these circumstances, it would be most inequitable to allow the association to assert successfully an interpretation of the sick-leave credits provision that is inconsistent with its many years of apparent acceptance of a contrary interpretation applied by the [employer].”  While thearbitrator noted at para. 30 that there was no evidence the association actually knew of the employer’s erroneous practice in computing sick-leave credits, the arbitrator found that, “given the figures (respecting the sick-leave credits for each officer) which were at all times available to the association that it reasonably should have known how (the applicable contractual provision) was being applied”, or as the arbitrator then stated:  “To put it differently, for many years the association had constructive notice of the employer’s calculation of sick-leave credits (emphasis added).  It would be inequitable to let it now assert the rights of an ignorant party which has just discovered a violation of its rights”.

[123]      It is apparent that the key factors from the foregoing analysis in Owen Sound, supra, having immediate relevance to the instant case are: (a) that the employer’s consistent practice in computing sick-leave credits was contrary to the terms of the collective agreement; and (b) that the employees had regular and open access to the records of their sick-leave credits and a number of them had actually consulted those records, from which they would have seen how the employer calculated the employee’s sick-leave credits which was imputed to the “constructive knowledge” of the bargaining agent.  Can the same be said of the factual circumstances in the case before me?

[124]      The first matter to consider is whether the Company’s practice of paying the premiums for a policy of insurance covering a form of long-term disability for its disabled employees (referred to as Stage Three and Stage Four in the 2005 Youfirst Booklet), in itself, is contrary to any term of the collective agreement?  In my opinion it is not.  There is nothing in article 15 of the collective agreement preventing the Company from insuring its own risk against reimbursing a disabled employee for the loss of income arising out of a qualifying disability.  But the Company can’t shift its contractual obligation under that article to be primarily responsible for the payment of such benefits to an insurance company by unilaterally deciding to pay premiums without the agreement of the Union.  It may be as Arbitrator Swan opined in Cocoa-Cola Bottling Ltd., supra, at para. 15, that an employer would not likely be willing to “place itself in the position of both paying premiums to an insurer to have those benefits provided, while taking on primary liability for the payment of the benefits in any cease”.  However, any conclusions on that matter must be informed by the relevant terms of the collective agreement itself which, as I have found above, establishes in its own right a Category 2 type of benefit that brings with it the responsibility of the Company to make, or certainly to guarantee if the task is assigned to another paymaster in the form of an insurance company.  The fact that both the 1999 and 2005 Youfirst Booklets state that the Company would pay, “the full premium cost associated with Stages Three and Four” is not contrary to the Company’s commitments under article 15 for primary responsibility for the actual payment of those benefits.  As such, unlike the circumstances in Owen Sound, supra, even if the Union could be said to have had “constructive notice” of the fact that the Company was making those premium payments, it would have no reason to complain unless it became aware of the Company’s practice of also relinquishing its responsibility for the negotiated disability payments to an eligible employee, which has not been established on the Agreed Statement of Facts or in any of the documents presented to me.

[125]      It is also noteworthy for the purpose of assessing what the Union would have constructively understood from the 1999 and 2005 Youfirst Booklets that, at most, they alert the reader to the fact that, “Stages Three and Four of the SDR Plan are currently provided through the insurance company”.  Such qualification by the word, “currently”, brings with it the spectre of the Company simply choosing to cancel that arrangement, which is consistent with the statement in the opening disclaimer clause of the Booklets purporting to reserve to the Company, “the right to modify or discontinue any benefit or program at any time”.  Viewed in context, this is not a representation of any permanent arrangement regarding the payment of the contractually obligated SDR benefits outside of the Company otherwise saying: ‘We are doing it this way for now, but in the future we may change our mind and do it another way or eliminate the benefit entirely as we deem appropriate’.  That is hardly analogous to the situation in Owen Sound, supra, where there was a consistent practice over a period up to 32 years, with no suggestion that the police department would or could change its practice at any time in its sole discretion.

[126]      Not only does the foregoing language in the 1999 and 2005 Youfirst Booklets respecting SDR benefits undercut any sense of a clear and unequivocal practice of sufficient permanency amounting to a representation that might support the first step in establishing an estoppel against the Union’s correct interpretation of the relevant contractual terms, but the physical location of those statements in the Booklets themselves is also an important factor in assessing what “constructive knowledge” could be reasonably expected of the Union on the matter.  In Owen Sound, supra, the staff sergeant of every shift carried a list of each officer’s sick-leave entitlements that was openly accessed by interested employees wanting to know the number of available sick days to their credit.

[127]      However in the present case, the information that the Company paid “the full premium costs associated with Stages Three and Four” and that those Stages, “are currently provided through the insurance company”,  are set out in two short lines on page 7 of the 2005 Youfirst Booklet, and in somewhat small print, buried within the body of a 27-page description of all of the benefits purportedly available to employees (while subject to the earlier disclaimer and reservation of the right to cease any of those benefits in the Company’s discretion).  In my view, it seems unlikely that an individual employee would, during his or her “onboarding”, take much if any notice of the kind of statement on page 7 of the 2005 Youfirst Booklet respecting the payment of SDR benefits through an insurance company.  Rather it would seem that any scrutiny of those specific terms would not occur until the individual employee had a need to access those benefits as a result of suffering a disability in the course of employment, and then only if the insurance company failed to provide the expected (or any) level of benefit coverage in compliance with the SDR Plan.

[128]      It is therefore difficult to ascribe a form of “constructive notice” to the Union of the Company’s practice of transferring the responsibility for the payment of disability benefits to an insurance company through the payment of premiums for a policy of such insurance from the statements in the 1999 and 2005 Youfirst Booklets alone, without something more tangible flowing to the Union from which it would have reasonably or ought to have known about that practice. In para. 34 of the Agreed Statement of Facts, the Company refers to documents listing the name of unionized employees receiving LTD benefits from a third party insurer that were filed in these arbitration proceedings, including: (i) a “list of unionized employees who had been off on LTD and receiving benefits since 2005”; (ii) a list “of other unionized employees who became disabled on May 12, 2012 and received LTD benefits”; and (iii) a document identifying “three unionized employees who were in receipt of LTD benefits from a third party insurer as a result of disabilities sustained in 2007 and 2008”.  Paragraph 38 of the Agreed Facts also names two unionized employees who independently settled their claims for disability benefits directly with the insurance company, without the assistance of the Union.

[129]      Yet paras. 34 and 38 indicate that the Union was never provided with any of those lists or specific information from which the Union might reasonably have suspected that the Company was no longer considering itself bound to pay or at least remain primarily responsible for the payment of the SDR Plan benefits.  At most, para. 35 refers to the seniority list that the Union unquestionably received, “indicating unionized employees in receipt of STD or LTD benefits.”  Although the Agreed Facts in para. 35 go on to state that, “LTD benefits were provided by the third party insurer”, that statement does not go so far to suggest that the Union ever suspected from any of the direct information provided to the Union by the Company that the Company interpreted its obligations under the collective agreement to be limited to the payment of premiums for the maintenance of appropriate policy of insurance.

[130]      In the foregoing factual circumstances it is in my opinion unreasonable to impute any actual or “constructive notice” of the Company’s intention through the articulation of a clear, unambiguous and permanent practice over many years, not to be bound by the terms of the collective agreement and the incorporated 1992 Consumers’ Gas SDR Plan, but rather to shift the primary responsibility for the payment of such benefits to an insurance company with the Company’s obligation limited to the payment of premiums to maintain an appropriate policy of insurance coverage.  This is much different than the circumstances before Arbitrator Picher in Owen Sound, supra, where the police department’s practice that was contrary to the collective agreement was sufficiently consistent, notorious and open, for up to 32 years, thereby supporting the finding of “constructive notice” to the association as a result.

[131]      Instead, I must find on the Agreed Facts and documents filed in these proceedings that the Company has failed to show even a remotely comparable level of actual or constructive notice to the Union of a practice that was contrary to the terms of the 2014 – 2017 collective agreement by paying the premiums for a policy of insurance to cover the losses of employee disability claims.  Given that finding, it is unreasonable to conclude that the first step towards invoking the equitable doctrine of estoppel against the Union’s attempt to enforce the strict rights of the Grievor as a disabled employee under the negotiated terms of the collective agreement has been established on the evidence and submissions presented.

[132]      Consequently, the Company’s second argument that the equitable doctrine of estoppel applies to prevent me from hearing the merits of the Union’s grievance, must also be denied.

(c)               Was the Claim Outside the Mandatory Time Limits?

[133]      This leaves the Company’s third and final argument that I am without jurisdiction to determine the Union’s grievance because it was filed outside of what is said to a mandatory three-year time limit from the date of the Grievor’s disability for making a claim under the express terms of the SDR Plan.

[134]      That time limit is set out in Section 6.09 of the 1992 Consumers’ Gas SDR Plan (and is substantially repeated in each of the other three SDR Plans proffered by the Company), which for ease of immediate reference is repeated below:

6.09        No legal action against the Company for the recovery of any claim shall be commenced until sixty days have expired from the beginning of the Disability or Total Disability and any such action must be taken within the three years following the beginning of the Disability or Total Disability.

[135]      The following Agreed Facts, and inferences to be drawn from those Facts, must also be considered in addressing the Company’s timeliness objection:  The Grievor was hired on November 6, 2000 by Enbridge Home Services as an installer (para. 13).  He suffered a work-related lower back injury on October 19, 2010 for which he took a leave of absence and received benefits from the Workplace Safety and Insurance Board, returning to modified duties on December 28, 2010 (para. 14).  I infer from those Agreed Facts that the WSIB accepted the Grievor had sustained a disability arising out of a workplace accident for which he was entitled to statutory compensatory benefits and other guarantees concerning the Grievor’s continuing employment status conferred by the applicable legislation.  The Grievor’s modified duties assignment was terminated on September 12, 2012 and he began receiving sick pay under article 15.05 of the collective agreement.  By that time the Grievor would have been an employee for almost 12 years, who has not returned to active employment since.  Article 15.04 of the collective agreement provides that in such circumstances he would be entitled to receive, “Full pay for 20 weeks” and “66 2/3% pay after 26 weeks”.  While on sick leave and presumably receiving “full pay”, the Grievor was involved in a motor vehicle accident on October 5, 2012, “and the Company continued to pay the Grievor, on a gratuitous basis, 100% of his pay” (para. 15).  Although the Agreed Facts state that the continuation of the Grievor’s full pay was “gratuitous”, there is no evidence that anyone in the Company told the Grievor or the Union that his salary would not be reduced to “66 2/3% pay after 26 weeks” in accordance with article 15.04.  Instead, the Grievor continued receiving 100% of his pay, “until approximately April 18, 2016”, which the Company states was done “in error” and that: “While the Grievor was not advised that such payments were an error per se, Enercare advised the Grievor that it continued to pay “in good faith” (para. 19).  The Agreed Facts go on to note that, “Enercare subsequently converted the Grievor to STD benefits at 66 2/3% of his pay until July 18, 2016 [after which] Enercare ceased paying STD benefits to the Grievor” (para. 19).

[136]      The foregoing Agreed Facts thus indicate that for a period of five years and six months from the date of the Grievor’s initial lower-back injury on October 19, 2010, he was continuously in receipt of either statutory workers’ compensation benefits or “sick benefits at 100% of his pay” until April 18, 2016, when those benefits were reduced to 66 2/3% of his pay until July 18, 2016, at which time, “Enercare ceased paying STD benefits to the Grievor” altogether.  While the Agreed Facts state that the continuation of the Grievor’s full salary by the Company was at various times, “gratuitous” and at other times, “in error”, the Agreed Facts fail to disclose any conversations with the Grievor and/or Union, prior to October 8, 2014, from which the Grievor and/or the Union would have or reasonably should have known that the Company was questioning the legitimacy of what was then the Grievor’s de facto status as an employee who was on a disability leave of absence (and whose name presumably appeared on the Union’s seniority list reflecting that status).

[137]        In the midst of the 5 ½ years of full salary continuation for the Grievor while he remained off work, para. 17 of the Agreed Statement of Facts indicates that on October 8, 2014 the Grievor was advised that “he could apply for LTD benefits from (Manulife)”.  It cannot be mere coincidence that the current Company,  Enercare Home Services, had taken over the portion of the Direct Energy business that had employed the Grievor at about that time as well, thus assuming liability for any benefits to which the Grievor might be entitled.  To put the matter another way, it seems apparent on the Agreed Facts that Direct Energy (or its insurance company) never challenged the Grievor’s disability while it was in control.

[138]      Paragraphs 17 and 18 of the Agreed Facts go on to recount that the Grievor’s subsequent application for benefits was declined by Manulife on August 25, 2015, and his appeal from that decision was declined again by Manulife on October 15, 2015.  Paragraph 17 expressly states that, “Manulife declined the Grievor’s claim beyond October 19, 2012 because his medical documentation did not preclude him from performing sedentary duties”.  Nowhere in the Agreed Facts is there a statement that Manulife ever considered that the Grievor’s claim for benefits was “untimely” and thus could be denied on that ground as well, regardless of the merits of his medical condition.  Nevertheless, the fact that the Company continued to pay the Grievor his full salary until April 18, 2016, whether “gratuitously” or “in error”, begs the question:  How were the Grievor and the Union ever to know before being specifically told that the Grievor’s claim for disability benefits was ever denied, that it would be necessary to file a grievance to enforce what the Union believed to be the Grievor’s entitlement under the collective agreement?  Even after being told that the Grievor’s application for benefits had been denied by Manulife (following the second “decline letter” dated October 15, 2015), the Company’s actions in continuing to pay the Grievor’s full salary until April 18, 2016 added considerable ambiguity to what exactly the Company was telling the Grievor and Union about the Grievor’s status.

[139]      What am I to make of these “Agreed Facts” and the reasonable inferences to be drawn from them?  Before considering Section 6.09 of the 1992 Consumers’ Gas SDR Plan and/or the other 1999 and 2005 Youfirst Booklets that refer to the same three-year limitation period following the beginning of the Disability or Total Disability “for the recovery of any claim”,  but instead focusing on the Company’s negotiated obligations under article 15 of the collective agreement, I conclude from the Agreed Facts that the only thing the Grievor and Union could have reasonably understood from the conduct of the Company at least until October 8, 2014, was that the Grievor’s “claim” for  Sickness, Disability and Rehabilitation benefits under article 15 of the collective agreement had been accepted; and all the better for the Grievor  when the Company failed to reduce the “SDR Benefit” payments as an employee with “8 years to 10 years” of service under article 15.04 from full pay after 20 weeks to 66 2/3% pay after 20 weeks.”

[140]      What is strikingly apparent when looking at article 15 as a whole, is that there is no time limitation on when a grievance can or cannot be brought under the collective agreement for an alleged violation of any of the terms in that article.  Instead, the appropriate timing of grievances is regulated by article 25 of the collective agreement, which sets out a typically standard requirement in article 25.02 (“Step 1”) that the Grievor is to make his grievance known to his Supervisor/Manager “within five (5) working days of the employee being aware of the act originating the grievance”  with subsequent time limits established  at “Step 2” and “Step 3” where, failing satisfactory settlement, the grievance may be referred to arbitration.

[141]      On the Agreed Facts before me, the Union’s grievance was filed on September 9, 2016 (para. 24) and it was referred to arbitration “on or about December 8, 2016” (para. 28).  There is no suggestion in the Agreed Facts or in any of the submissions of the parties that the Company ever raised an objection on the grounds of timeliness of the grievance itself under the collective agreement to challenge my jurisdiction to consider the Union’s complaint. Rather, to the extent the Company may have had a legitimate objection in that regard (which, on the facts, would likely have been difficult to sustain), the Company clearly acquiesced in the matter.

[142]      Consequently, I must conclude that at least for purposes of dealing with an alleged violation of article 15 of the collective agreement, which I have determined to contemplate a Category 2 type of benefit under the Brown and Beatty typology that is enforceable in its own right, the Union’s grievance dated September 9, 2016 is timely.  To the extent that article 15.01 denotes the parties’ further agreement to incorporate the terms of the 1992 Consumers’ Gas SDR Plan, the review of the case-law canvassed above indicates that an ancillary document purporting to set out specific terms of a policy of insurance or benefit coverage must be consistent with, and more particularly, cannot be contrary to the express terms of the collective agreement.  This has traditionally been understood in cases involving health and welfare benefits to require that the benefits provided under the policy of insurance satisfy the minimum level of benefit coverage set out in the body of the collective agreement itself.

[143]      Therefore to the extent that Section 6.09 of the 1992 Consumers’ Gas SDR Plan and substantially identical provisions in the subsequent Youfirst Booklets have been interpreted by the Company as requiring the Grievor  to bring his “claim” that includes his grievance herein, within three years of October 19, 2010, the date he was initially determined to be disabled as the result of a workplace accident by the WSIB and in receipt of statutory compensation benefits (i.e. by October 19, 2013), or October 5, 2012 when the Grievor was injured in an automobile accident for which he is pursuing an independent claim in the civil courts  (i.e. by October 5, 2015), any suggestion of those provisions overriding the terms of the collective agreement on the timing of the filing of a grievance must be rejected.  Under article 25.02 (Step 1) of the grievance procedure, the Grievor was only required to file his grievance “within five (5) working days of the employee being aware of the act originating the grievance”.

[144]      Given the Company’s conduct in continuing the Grievor’s full pay for a period of more than five years to April 18, 2016, and then at the reduced rate of 66 2/5% his usual salary which is far later than it might have reduced those payments under article 15.04 in circumstances reviewed above, I conclude that the first time the Grievor and/or Union would have reasonably been aware of an act of the Company that allegedly violated article 15 of the collective agreement was when the Company terminated all benefit payments to the Grievor on July 18, 2016, which was approximately six weeks before the Union actually filed its September 9, 2016 grievance in the present case.

[145]      Since there is no evidence or suggestion in the parties’ submissions before me that the Company objected on timeliness grounds to the alleged late filing of the instant grievance, if that defence was available considering that the time limits under article 25 of the collective agreement appear, in my opinion, to be of a directory rather than mandatory nature; but rather as I have found that the Company acquiesced by its conduct in the matter throughout the course of the grievance procedure, I conclude the Union’s grievance before me is timely, and that I have jurisdiction to determine its merits.

[146]      If  I am wrong in my conclusion that the terms of article 25 of the collective agreement trump the time limits set out in the ancillary SDR Plan for bringing a claim (which includes a grievance) to the extent of any inconsistency between the two, in interpreting Section 6.09 of the 1992 Consumers’ Gas SDR Plan (and the same language in its Youfirst Booklet counterparts), I have adopted the premise that, as an incorporated provision of the collective agreement my essential task is to determine the intention of the parties by construing the words used in Section 6.09 in their “normal or ordinary sense unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement or unless the context reveals that the words are used in some other sense”, and that “where there is no ambiguity or lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive” (per Brown, Donald J.M. and David M. Beatty, Canadian Labour Arbitration, supra, at para. 4:2110).

[147]      As reproduced above, “Step 1” of the grievance procedure in the collective agreement is triggered under article 25.02 “within five (5) working days of the employee being aware of the act originating the grievance.”  Under Section 6.09 of the 1992 Consumers’ Gas SDR Plan, any claim against the Company “must be taken within the three years following the beginning of the Disability or Total Disability”.   Under a strict reading of those words, the Company argues that the “clock” for calculating the three-year limitation period begins either on October 19, 2010 when the Grievor suffered a compensable workplace injury, or October 5, 2012 when he was injured in an automobile accident.  In either case the Union’s grievance of September 9, 2016 is beyond that three-year limitation stated in Section 6.09 and thus it is submitted that I am consequently without jurisdiction to consider the case.

[148]      However, the fatal flaw in the Company’s submission is that in construing the words of Section 6.09 the Company has not considered that those words must be reconciled with the other terms of the collective agreement that the parties are presumed to have intended to operate consistently or in harmony with each other.  The Company’s analysis doesn’t take into account the stipulation in article 25.02 that imputes actual knowledge by the Grievor that he has a claim against an alleged violation of the collective agreement.  On the Agreed Facts of the present case, I have found that the Grievor would not have reasonably become “aware of the act originating the grievance” (to use the language of article 25.02) until July 18, 2016 when the Company terminated his disability benefits.  And even as of that date, it is likely he might not have realized the alleged breach of contract for a reasonable period of time after that date.

[149]      The requirement of the Grievor “being aware” of actions by the Company violating his rights under the collective agreement imparts a subjective test, which is likely tempered by a reasonableness standard requiring the Grievor to file his grievance with the time limits stipulated in the grievance procedure when he actually or reasonably ought have been aware of the alleged breach of contract by the Company.  In the factual circumstances of the present case, it would not have been unreasonable for the Grievor, who was not in the workplace when the Company ceased paying him disability benefits, to require an additional interval of time to digest and consider the Company’s actions before “being aware” of a potential breach of contract; thereby extending the time for the filing of a grievance under the collective agreement by several days if not weeks.

[150]      Interpreting Section 6.09 in a manner that is in harmony with article 25.02, and so as not to create an inconsistency in the operation of the time limits under the collective agreement, I therefore conclude that the parties could have only intended that the three-year time limit in Section 6.09 would not become operative until the Grievor actually or should have reasonably known that the Company was allegedly acting in violation of the collective agreement with respect to the payment of disability benefits.  Thus, operating in harmony, Section 6.09 must be interpreted in a manner consistent with article 25.02 to include the implied term that the “clock” counting out the three-year time limit for bringing “a legal action against the Company for the recovery of any claim” (to quote from Section 6.09) doesn’t begin until the Grievor actually knew or reasonably ought to have known that he had a claim in the form of a grievance against the Company.  It would indeed be an absurdity to think that the parties would have intended the Grievor to bring a claim under the SDR Plan before he actually knew or even reasonably suspected that he had one, which would be the effect of the Company’s interpretation of Section 6.09 in the present case.

[151]      A practical illustration of the Company’s interpretation of Section 6.09 leading to an absurd result that could not have been intended by the parties is to consider the definition of “Disability” and “Total Disability” in Section 2.04  of the 1992 Consumers’ Gas SDR Plan,  which is repeated below:

 2.04      “Disability” or “Total Disability” shall mean:

(c)     during the first 24 months  of Benefit payments, a state of incapacity due to Sickness or Injury or Pregnancy which prevents the Member from performing the essential duties of his own occupation; and

(d)     thereafter, a state of incapacity due to Sickness or Injury or Pregnancy which prevents the Member from earning at least 66-2/3% of his basic Earnings at the beginning of the Disability.

[152]      It is readily apparent from the definition of “Disability” or “Total Disability” that an employee may be considered disabled during the first two years and in receipt of disability benefits where the employee’s illness or injury “prevents the Member from performing the essential duties of his own occupation”.

[153]      However, that same employee can only continue to receive benefits if the state of incapacity “prevents the Member from earning at least 66-2/3% of his basic Earnings at the beginning of the Disability”, and under that definition, the Company may determine that the employee is no-longer disabled because he or she is capable of earning at least 66 2/3% of the prior earnings in another job or vocation.  While an employee may be found to be disabled to perform in his or her own occupation, after two years that same employee may be capable of performing work in another job, and provided it pays at least 66 2/3% of the pre-disability salary the employee is no longer considered disabled within the definition of “Disability” or “Total Disability” in Section 2.04 of the SDR Plan.

[154]      Yet under the Company’s interpretation of the three-year time limit in Section 6.09, which is calculated from the beginning of the disability, the employee who is disabled for the first two years and properly receiving SDR Benefits will have those years counted against him or her for purposes of calculating the three-year limitation period if the Company later decides that the employee is not disabled from any occupation paying the required threshold salary in the third year of disability and beyond.  Such a result would mean that in order to take advantage of the full three-year limitation period in which to make a claim, the employee would have to know he or she had a claim during the first two years while the employee was considered incapable of performing his own job and properly receiving SDR Benefits.  That would be an absurd outcome arising out of the Company’s literal and restrictive interpretation of Section 6.09 (based on the first day of disability) that the parties could not have reasonably intended.

[155]      Therefore, applying the principles of contract interpretation reviewed above, even if article 25.02 of the collective agreement doesn’t override the time limits in Section 6.09, thereby rendering the three-year time limitation period in the SDR Plan of no effect, the presumption that the parties would have intended article 25.02 of the collective agreement and Section 6.09 which is incorporated into the collective agreement to act in harmony and the aversion to inconsistencies, requires an interpretation of Section 6.09 delaying the commencement of the three-year time limit to the date that the Grievor knows or ought to reasonably have become aware “of the act originating the grievance” consistent with article 25.02.  That interpretation leads to the conclusion that the Union’s grievance was timely.

[156]      But in any event, I agree with the Union that the factual circumstances of this case compel the exercise of my discretion under section 48(16) of the LRA to extend the time limits for the filing of the Union’s grievance.  There are “reasonable grounds for the extension” where the Grievor’s alleged delay in filing his grievance was attributable to the Company’s actions in continuing the Grievor’s salary for 5 ½ years from the original workplace injury. Whether “gratuitously” or “in error” (and without ever telling the Grievor that was the case), the Company’s actions would have reasonably caused the Grievor to believe his disability claim was accepted and thus he would have no reason to file a grievance until his salary was either reduced on April 18, 2016 or ceased on July 18, 2016.  There is also no evidence that the Company, which is contractually responsible for providing a Sickness, Disability and Rehabilitation Plan to all of the employees in the bargaining unit, “will be substantially prejudiced by the extension” for this one Grievor where the Company contributed to the delay in filing the grievance, while the implications to the Grievor as a disabled employee being prohibited on timeliness grounds from pursuing what may be a valid claim, would be dire.

1.    Disposition

[157]      Thus for the reasons canvassed above, I conclude that I am authorized under the parties’  collective agreement to determine the merits of the Union’s grievance dated September 9, 2016, and consequently the Company’s objection to my jurisdiction is hereby dismissed.

[158]      Hearings to consider the merits of the Union’s grievance will accordingly be scheduled in the usual course.

DATED AT MARKHAM, ONTARIO THIS 5TH DAY OF JUNE, 2019.

                                                                                                “G. F. Luborsky”             

                                                                                               Gordon F. Luborsky,

Sole Arbitrator