Canadian Lawyer

May 2020

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Page 42 of 59 41 upholding the lower court's decision. "In my view, the provisions of the collective agreement are 'strange' and 'unique' because the employer has contractually bound itself to provide employees with the coverage . . . and to resolve coverage disputes by arbitra- tion, even though the LTD coverage itself is provided by a third party," wrote Chief Justice George Strathy in the decision, with justices Robert Sharpe and Lois Roberts concurring. Like the agreement in Campos v. Sun Life Assurance Company of Canada, 2009 CanLII 43186 (ON SC), Strathy said that, while provisions of the collective agreement may be described as "strange" and "unique," he could understand why the union may have negotiated the way it did. "It permits disabled employees to resolve their LTD disputes by grievance and arbi- tration with their employer, rather than by litigation against the insurer. The arbitra- tion process is faster, more cost effective and engages the experience of expert arbitrators." Hutton had "no entitlement to resort to the court for additional compensation from the insurer," the panel of appeal court judges ruled. "[T]he true substance of her dispute is a disagreement with her employer over her entitlement to LTD benefits as outlined in the collective agreement," wrote Strathy. "Here, the dispute was resolved through the appeals and grievance process stipulated in the agreement." Deborah Anschell, an arbitrator and medi- ator at ADR Chambers in Toronto, who was not involved in the case, says she wasn't surprised by the Court of Appeal's decision, noting that Strathy's reasoning was "sound." "It's really not a new issue. It's something that's been already dealt with more than once by the Supreme Court of Canada with respect to LTD benefits — saying that the labour arbitration regime has exclusive jurisdiction," she says. "Yes, the plaintiff has been precluded from proceeding with this action in the courts. But still, there was relief available to her." But Zaltz says that the reality facing clients 1968 Hospitals of Ontario Disability Income Plan was created 1981 Central collective bargaining process between OHA and the Ontario Nurses' Association raises concern that third- party insurance coverage would preclude access to arbitration 1995 Weber v. Ontario Hydro requires the court to determine "whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement" 1998 Donald Brown and David Beatty's book, Canadian Labour Arbitration, sets out four categories for deciding the arbitrability of benefit entitlement claims EARLY HISTORY OF LONG-TERM DISABILITY JURISDICTION

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