Canadian Lawyer

May 2020

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42 like his has changed in the years since the Supreme Court last addressed the issues in Hutton's case. "Paths to justice existed between the imple- mentation of this arbitration clause in 1981 and the implementation of the exclusive model of arbitral jurisdiction as a matter of the labour relations regime in the 1995 Supreme Court of Canada decision. And, so, in the interim, you have complaints by the hospitals that this is unfair in a contrac- tual sense that they're both having to pay the premiums but also liable to have these claims enforced against them by way of arbitration," he says. "But the issue becomes one that is fatal to LEGAL REPORT ALTERNATIVE DISPUTE RESOLUTION basis that the essence of your claim is that it is against a third-party insurer.'" When the claim by the insurer also could not move forward — because of that griev- ance process — Zaltz argued that his client was "wholly deprived of remedy." "The adequacy of arbitration as a dispute resolution forum is going to be predicated on the tools that arbitrators have to enforce the proper remedies," he says. Anschell, however, questioned whether the case presented an access-to-justice issue, noting that Hutton received a settle- ment less than a year after Manulife's final decision on benefits. "Ms. Hutton had already accessed her remedies provided in the collective agree- ment," notes Anschell. "Ms. Hutton filed a grievance with her employer following the grievance procedure set out in the collective agreement. Her grievance with her employer was settled." 2000 Ontario Court of Appeal applies Brown and Beatty categories in London Life Insurance Co. v. Dubreuil Brothers Employees Assn. 2006 Supreme Court in Bisaillon v Concordia University holds that third parties will not be bound by awards 2009 Campos v. Sun Life Assurance Company describes the "strange" and "unique" nature of the collective agreement provisions 2016 Arbitrator in Health Sciences North v Ontario Nurses' Association questions whether an insurance policy "was truly a contract" since the insurer "was free of any obligation to perform its side of the bargain" RECENT HISTORY OF LONG-TERM DISABILITY JURISDICTION access to justice for union members after the implementation of the exclusive jurisdiction model because, in that scenario, the union members are forced to seek recourse against the hospitals." He says that, because arbitrators have jurisdiction only over the parties to the collec- tive agreement, they can't bind third-party insurers and any remedy that the arbitrator grants against the insurer isn't going to be enforceable. (Manulife declined to comment to Canadian Lawyer on the ruling). "You have this access-to-justice conun- drum," he says. "After the denial of her long- term disability benefit claim by the insurer, she goes to her union steward and asks, 'What do I do?' The union steward says, 'Well, you have to commence a grievance and proceed through to arbitration.' "So that's what she does. She shows up at the bargaining table represented by her union . . . and they say, 'Well, let's settle this on the "Yes, the plaintiff has been precluded from proceeding with this action in the courts. But still, there was relief available to her." Deborah Anschell, ADR Chambers

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