The Supreme Court of Canada’s recent decision in Bisaillon v. Concordia University has attracted attention, partly due to its potential to lead to multiple proceedings on the same matter. Concordia’s central issue was whether a labour arbitrator or a court should hear a dispute by union members over the use of funds by the University’s pension plan, which included both non-union and union members(covered by nine collective agreements). The plaintiffs wanted their complaint heard in court as a class action; however, the Court ruled the matter should be arbitrated using the grievance procedures under the collective agreements.
TRIAL OR ARBITRATOR
But on appeal by the estate, it was determined the court did have proper jurisdiction to hear the case. Using legal principles also applied in Concordia, the Court ruled the trial judge failed to determine the “essential character” of the dispute and whether it fell within the collective agreement’s scope, having regard to its provisions relating to group insurance. The dispute concerned plan administration whereas the agreement’s terms were limited to the employer’s payment of premiums. The Court concluded the parties didn’t intend such disputes to be governed by the agreement. Therefore, the Court, not an arbitrator, had jurisdiction. As the negligence findings weren’t appealed, Riverside had to pay damages(over $200,000), which notably, weren’t reduced by the amount previously paid in settlement by the insurer. Group benefit plans, when collectively bargained, are typically addressed in one of four ways. The collective agreement may: not mention the plan; require the payment of specified benefits; only impose an obligation on the employer to pay premiums; or, incorporate the actual plan or insurance policy by reference. Therefore, an employee’s ability to enforce benefit provisions, and the remedies available, can range from an outright ability to sue the employer in court to a requirement that all matters be arbitrated. Many agreements, though, provide for what is effectively a patchwork of remedies, with resulting uncertainty for all. Disputes over benefit coverage and administration may not have the profile of pension cases, but the time, energy and money consumed in resolving them can be equally draining. Rulings like Perlett should remind employers and unions alike that they can still control their fate with respect to the resolution of benefit disputes, which inevitably will arise. Anticipating potential conflicts and considering in advance the most appropriate jurisdiction for their resolution can go some distance to increasing the likelihood of an acceptable outcome.
Michael Wolpert is an associate in the pension and benefits department at Osler, Hoskin & Harcourt LLP in Calgary. firstname.lastname@example.org