A recent decision by Ontario’s Divisional Court means that the province’s hospital sector is bound to provide long-term disability coverage to unionized employees who work past age 65.

While the court’s ruling dealt only with the collective bargaining agreement between Markham Stouffville Hospital’s site at Uxbridge and the Canadian Union of Local Employees’ Local 1999, the decision will cut a broad swath.

“The determinative language in the agreement is central to some 54 hospitals who have collective agreement with CUPE, 33 service-employee agreements and nine agreements with institutions where Unifor is the bargaining agent,” says Mark Wright, a partner at Goldblatt Partners LLP in Toronto. “Getting the additional coverage is going to be expensive.”

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Unlike many cases centred on providing LTD benefits beyond age 65, the decision didn’t turn on human rights considerations. “It was all about the language of the collective agreement,” says Wright. “We didn’t make the human rights argument because we didn’t have to.”

Ironically, the text of Markham Hospital LTD plan’s master policy did provide for termination of coverage at age 65. But the majority of the arbitration board that decided the case concluded the parties’ intention was to extend the coverage beyond age 65 because the LTD provision in the collective agreement referred specifically to a 1992 booklet that summarized the plan but made no reference to the master policy or to coverage ending at age 65.

“The specific reference to the booklet made it easy for the arbitrator and the Divisional Court to agree that the booklet was the central document — and that turned the thing on its head, because usually it is the master policy to which collective bargaining agreement point as the central document,” says Wright.

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The unique situation arose because of the realities of province-wide bargaining.

“You can’t have separate master agreements for all 54 of the CUPE hospitals, so the parties used the booklet as a template,” says Wright. “And because they did, the master plan had to conform to the booklet, rather than having the booklet conform to the master plan.”

The Divisional Court reached its conclusions despite the fact that the 1992 booklet was the first to omit reference to the master plan — all previous versions back to 1980 had made direct reference to it.

In essence, the court adopted the arbitration board’s conclusion, as summarized by Justice Nancy Backhouse, who wrote the reasons for a unanimous Divisional Court. “The board found that article 13.01(a) (of the collective agreement refers to) the 1992 booklet for the purposes of the LTD provision,” she wrote. “It contrasted the wording in article 13.01(a) to that in article 18 where the parties refer to certain health and welfare plans, not booklets and those plans have been incorporated into the collective agreement and, therefore, been used to determine eligibility.

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“The board found that it must be presumed they said something different in article 13.01(a) because they meant something different. It reasoned that the fact that the plan is mentioned in some places in the booklet and not others only demonstrates that it may be relevant to understanding those sections but does not mean that the whole booklet is to be read in the context of the plan. It held that the plan is not incorporated into the collective agreement through the booklet and cannot be relied upon to reduce the benefit provided in the collective agreement.”

As Backhouse saw it, the board’s logic was within the range of reason. “I conclude that the board’s decision fits within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law and that their reasons for reaching that decision are intelligible, transparent and justifiable,” she wrote.

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Copyright © 2019 Transcontinental Media G.P. Originally published on benefitscanada.com

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Dave Patriarche:

I think I understand the technicalities of the ruling, but I am curious who will insure a benefit beyond age 65 and for how long.

If an employee is still eligible to apply for LTD benefits past the standard termination age (65), does it become a 5 year, 2, or 1 year benefit? or is it disability to death or retirement?

This could be the start of a degradation of LTD benefits to a shorter fixed term (such as 5 years) that the entire industry has been trying to avoid. Doing so would leave employees with very long or permanent disabilities severely disadvantaged over current benefit plans.

Monday, October 28 at 11:35 am | Reply

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