Hotel Dieu Hospital, Kingston v. O.P.S.E.U.

, 1978 CarswellOnt 832

1978 CarswellOnt 832, 17 L.A.C. (2d) 358

1978 CarswellOnt 832

Ontario Arbitration

Hotel Dieu Hospital, Kingston v. O.P.S.E.U.

1978 CarswellOnt 832, 17 L.A.C. (2d) 358

Hotel Dieu Hospital Kingston (hereinafter called the "Hospital")

v. Ontario Public Service Employees Union (hereinafter called the
"Union"); Grievance of Rita Carmichael (hereinafter called the "Grievor")

R.H. McLaren, R. Cochrane, G.F. Pike

Judgment: March 2, 1978

Counsel: Appearing for the Hotpital, Paul Ryan.

Appearing for the Union, George Richards.

Subject: Labour

Related Abridgment Classifications

Labour and employment law
I Labour law
I.6 Collective agreement
I.6.l Employee benefits
I.6.l.i Health and welfare plans
I.6.l.i.D Entitlement

Headnote
Labour Law --- Collective agreement Employee benefits Health and welfare plans Entitlement
Illness related to pregnancy.

An employee lodged a grievance alleging the employer breached the obligations under the collective agreement to
provide sick leave benefits. The employee was pregnant and suffered the complication of a placental separation
which was aggravated by a pre-existing condition of a retroverted uterus. The union on behalf of the employee
argued that the complications of the pregnancy took the case outside the normal healthy pregnancy situation which
would entitle the employee only to maternity leave and resulted in the employee being ill, thereby entitling her to
sick benefits. The employer argued that sick benefits, and maternity leave were separate and distinct categories and
that the lengthy period of time given for maternity leave took account of any illnesses related to pregnancy and that
the employee should not be entitled to sick leave. Held, the grievance should be allowed. There was no reason to
treat an illness arising because of pregnancy differently from an unrelated illness which happened to occur during
the condition of pregnancy.

Per Curiam:

AWARD

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

1 The subject matter of this award involves a grievance by Mrs. Rita Carmichael alleging that the Hospital breached
Article 27 of the Collective Agreement. The grievance was not settled during the grievance procedure and so forms the
subject matter of this award.

2 A hearing in relation to this matter was held in Kingston, Ontario on February 14th, 1978 at which time the parties
were given the opportunity to present evidence and make argument concerning the grievance. At that time, there was no
objection to the Board's jurisdiction to hear the matter nor as to the arbitrability of the matter.

3 The Union called as witnesses, the grievor and Mrs. Lorna MacHattie, the president of the Union.

4 The Hospital did not call any witnesses.

5 The grievor is employed as a junior technician level 2 in the X-ray department of the Hospital since July of 1976.
She became pregnant in June of 1977 and informed her employer of this fact in early August. She is expecting the arrival
of her baby in mid March, 1978.

6 The grievor reported for work on September 1st, 1977. Shortly after her arrival she began to experience pains in
the abdomen and in the lower back. At noon on that day, she went to the Emergency Department and was seen by Dr.
Spotswood. After an examination in the Emergency Department, she went to see her Gynecologist, Dr. Van Cott. He
has been her Gynecologist since early 1975 and handled her previous pregnancy.

7 Dr. Van Cott ordered the grievor to undergo a ultra-sonic scan at the Kingston General Hospital that afternoon. As
a result of this procedure, it was discovered that the grievor was suffering from a placental separation. Dr. Van Cott then
ordered the grievor to go home and have complete bed rest. On September 3rd, 1977 Mrs. Carmichael was awakened
with cramps and back pain which led to her seeing Dr. Van Cott at the Emergency at the Kingston General Hospital. He
conducted a further examination and discovered that the separation of the placenta from the uterine wall had increased
and furthermore that it was posterialy attached which was causing the back pain. He sent her home again prescribing
bed rest and instructing her that if any bleeding should occur, she was to immediately admit herself to the Hospital.
Later that afternoon she did begin to bleed and was subsequently admitted to the Hospital around 5:00 p.m. September
3rd happened to be the Labour Day holiday weekend and accordingly, she remained in the hospital for the weekend.
It was thought that there was a high degree of probability that because the placental separation had occurred so early
in the pregnancy that she would abort.

8 A further scan was done on September 6th, 1977 which revealed that her condition had stabilized. As a result, Dr.
Van Cott instructed her to remain in bed and have total bed rest for an indefinite period in order to enable the separation
to heal if that was going to occur. She was released from the Hospital on September 7th, 1977.

9 Prior to her discharge, Dr. Van Cott discussed the subject of whether she might be able to return to work. He
indicated to her that after some period of complete bed rest if things stabilized she might be able to go back to work.
However, he also indicated that she would have to have light work. The grievor is an X-ray Technician and her job
involves a great deal of lifting, pushing and pulling to position patients under the various X-ray equipment. Accordingly,
there is no light work which she would likely be able to do in the X-ray Department of the Hospital.

10 The grievor having reported to the Hospital that she was sick had been paid sick pay for September 2nd, 3rd and
4th. Her next scheduled work day would have been September 8th, 1977. She phoned her Supervisor at the Hospital
and indicated that she would not be able to come into work on September 8th. She indicated that it was quite likely that
she would not be returning to work until after the baby was born. The grievor, having had treatment of total bed rest
prescribed, had requested Mrs. MacHattie, the Union President, to go and pick up a medical certificate and give it to
the Hospital. This certificate is required in order to be eligible for benefits under the sick plan.

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

11 On September 19th, 1977, the grievor was informed through the Chief Union Steward that the Hospital was not
going to pay her for the days which she had been away from work after September 4th, 1977. The grievor discussed the
Hospital's position with the Union President and Chief Union Steward and indicated that she was quite willing to allow
them or the hospital officials to talk to Dr. Van Cott and ascertain the exact nature of her condition and complaints.

12 The grievor testified that she thought the certificate that Mrs. MacHattie had delivered to the Hospital was
sufficient to qualify her to be eligible for the benefits under the sick plan. The grievor never talked directly to the hospital
officials concerning her complaints other than indicating that she would not be coming to work on September 8th, 1977.
Similarly, the various administrators in the Hospital never talked directly to the grievor concerning their decision to not
pay her under the Sick Leave Plan.

13 The grievor was confined to bed for five to six weeks after her discharge from the Kingston General Hospital.
She then gradually worked up to being able to sit in a chair and finally to being mobile. According to a letter submitted
in evidence from Dr. Van Cott (who did not appear at the hearing) indicating that the progressive increase of activity
of the grievor had reached a state by the 26th of January where she was able to be considered as having a reasonably
normal and healthy pregnancy from that time onward. The letter from Dr. Van Cott further indicated that during an
examination in August, 1977, the grievor had a retroverted uterus.

14 Mrs. Carmichael had applied on September 13th, 1977 to obtain her pregnancy leave and had not been paid any sick
pay from September 5th, 1977 onwards. It was as a result of these actions by the Hospital that the grievance was filed.

ARGUMENT:

15 On behalf of the Union, it was argued that a placental separation is a disease of pregnancy which occurs in one
out of 100 cases and is a complication which is abnormal in pregnancy. It was also argued that the grievor's pre-existing
condition of a retroverted uterus aggravated the pregnancy abnormality. Both conditions required the same treatment
of absolute bed rest and confinement. It was argued that the proper characterization of such a condition is that it is a
sickness entitling the grievor to benefits of the Sick Leave Plan of Article 27 of the Collective Agreement. Arbitration
jurisprudence indicates that a normal healthy pregnancy would not be considered an illness, thereby, merely entitling the
grievor to the rights of Article 15 concerning Maternity Leave However, the grievor's problems of a placental separation
and retroverted uterus make the facts of this case one in which the general line of arbitral jurisprudence does not apply
in that the pregnancy was not a normal healthy pregnancy. It was argued that the grievor's complaints resulted in her
being ill and that she was, therefore, entitled to sick benefits up to January 26th, 1978.

16 The provisions of the Collective Agreement on which the Union relied, read as follows:

Article 15 - Maternity Leave

It is agreed that the Hospital will adhere to the provisions of the Employment Standards Act, Ontario, as amended,
regarding maternity leave, or existing Hospital practice whichever is better. Such leave of absence as provided under
the Employment Standards legislation for pregnancy will be extended to an aggregate of six months under the same
conditions as provided in this Agreement if such extention is requested prior to the commencement of the leave. It is
understood that during any such leave, credit for service or seniority for the purposes of salary increment, vacations,
sick leave or any other benefits under any provisions of the Collective Agreement or elsewhere shall be suspended
during such leave and the employee's anniversary date adjusted accordingly.
.....

Article 27 - Sick Leave

The Hospital agrees to provide the Hospital of Ontario Disability Income Plan and the benefits and regulations
pertaining thereto.

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

The Hospital agrees to pay 75% towards the cost of the billed premium for the Long Term Disability Insurance
Benefits for each employee who is eligible for the plan.

17 In support of it's argument, the Union urged the Board to consider the following cases: Re: Hotel Dieu of St.
Joseph Hospital, 13 L.A.C. (2d) 177 (O'Shea, 1977): Re: Bendix-Eclipse, 22 L.A.C. 387 (Weatherill, 1971; Re: Borough
of New York, 22 L.A.C. 389 (H.D. Brown 1971 and Re: Central Newfoundland Hospital Corporation, 9 L.A.C. (2d) 264
(Woolridge, 1975).

18 On behalf of the Hospital, it was argued that Articles 27 and 15 of the Collective Agreement create two separate
and distinct categories. Article 15 dealing with maternity leave as the result of pregnancy provides for the Hospital to
comply with the Employment Standards Act 1974, S.O. 1974, c. 112 and further extends the period of maternity leave
provided for in that statute to a period of six months without pay. It was argued that the purpose of extending the
maternity leave to a period of six months was to take account of The fact that certain complications and sickness related
to maternity might arise requiring an employee to be absent from work. It was argued that this lengthy period of time
was to take account of any illnesses related to pregnancy and the result was that the grievor should not be entitled to the
benefits of the sick leave, Article 27 of the Collective Agreement. It was further argued that the pre-existing condition of
a retroverted uterus was not sufficiently proved to be considered as part of the facts of the grievor's case.

19 The Hospital relies on the same provisions of the Collective Agreement as set out above. In support of it's position,
the Hospital also relied on the same cases as cited by the Union.

ISSUE:

20 What is the relationship between Articles 15 and 27 in the Collective Agreement? Depending upon that relationship
and the proper characterization of the grievor's condition is she entitled to the benefits of Article 27 of the Collective
Agreement? If there is entitlement to such benefits, for what period of time was she so entitled?

DECISION:

21 Article 27 incorporates by reference the Hospitals of Ontario Disability Income Plan and its benefits and regulations.
This plan was developed by the Ontario Hospital Association. The scheme of the Hospitals of Ontario Disability Income
Plan provides for two separate types of benefits. The first is a 75 day basic sick pay benefit. The requirement for eligibility
for sick pay benefits are that the employee has been "a full-time employee for at least three months and the absence from
work is due to disability". The second type of benefit under the plan is a "long-term disability benefit". This latter benefit
is insured by a private insurance carrier with Article 27 of the Collective Agreement defining how and who is to pay the
premiums of the Plan. This "long-term disability benefit" is not involved in the present grievance.

22 The first question to be determined is whether the grievor is eligible to claim the "standard sick pay benefit" under
the Hospitals of Ontario Disability Income Plan requirements. The only requirement which the grievor may not have
met to make her entitled to the benefit is whether as the plan requires, her absence from work is "due to disability". It
therefore, becomes necessary to place an interpretation on the word "disability" as used in the Plan. The Plan is known
as the 'Hospitals of Ontario Disability Income Plan" having both a 75 day, "sick pay benefit" and a "long-term disability
benefit". The eligibility of the sick pay benefit requires absence "due to disability". Therefore, when the word disability is
used under the sick pay benefit it is used in its broadest sense, i.e. it is to cover both disabilities which may subsequently
be entitled to the long-term disability benefit as well as illnesses which never develop into entitlement for the long-term
disability. Therefore, it is concluded that the meaning of "absence from work due to disability" eligibility requirement of
the plan is to be interpreted in its broadest sense and includes illness.

23 The next question to determine is whether the grievor was ill so as to say she was eligible for the Hospitals of Ontario
Disability Income Plan sick pay benefit because she was "absent from work due to disability". The inference from the
arbitration cases seems to be that a normal healthy pregnancy is not an illness within the commonly understood meaning

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

of that term. See Re: Thompson Products, 21 L.A.C. 125 (Weiler), 1970; Re: Bendix-Eclipse, 22 L.A.C. 387 (Weatherill,
1971); Re: Hotel Dieu of St. Joseph Hospital, 11 L.A.C. (2d) 130 (Ferguson, 1976).

24 What those cases further suggest is that pregnancy entitled an employee to sick pay only if there is some additional
disability or abnormal condition. Two other cases have held that the terms "illness" or "disability" are broad enough to
cover normal pregnancy. See: Re: Borough of York, 22 L.A.C. 389 (H.D. Brown, 1971 and Re: Central Newfoundland
Hospital, 9 L.A.C. (2d) 264 (Woolridge, 1975 - Nfld.)

25 However, on the facts of this case, these latter two cases do not have to be considered on this point as the grievor
has an additional disability or abnormal condition. The grievor had an additional disability or abnormal condition
resulting from a pregnancy in that she had a placental separation. The Encyclopedia Britannica in Volume XIV of the
Macropedia published in 1974 beginning at Page 968 under the heading "Diseases of Pregnancy" at Page 980 states:
"Abruptio placentae...It also is correctly referred to as 'premature separation of the normally implanted placenta' and is
called 'accidental hemorrhage' in Great Britain. It occurs in approximately 1 in 100 pregnancies. The cause is unknown.
It is more common in women who have borne several children..." Therefore, the grievor can be considered to be sick or
ill in that she did not have a healthy normal pregnancy and this condition resulted in her absence from work due to a
disability within the meaning placed upon that requirement in the Hospitals of Ontario Disability Income Plan sick pay
benefit as that requirement has been interpreted by this Board.

26 Having established the grievor's eligibility to obtain the sick benefit of the Hospitals of Ontario Disability Income
Plan, it must be determined what the proper interpretation and relationship is between Article 27 and Article 15 of the
Collective Agreement. It was urged upon the Board by Counsel for the Hospital that the Maternity Leave provisions of
Article 15 and the Sick Leave provisions of Article 27 created two separate and distinct regimes and that there was no
overlapping. The board must reject this argument. If an employee had a medical condition ante dating pregnancy but
having nothing to do with pregnancy and it reappeared during pregnancy, any absence related to this condition would
be considered an illness which is clearly eligible for sick leave benefits. Similarly, if that medical condition accelerated
the point in time when the employee had to leave work because of the pregnancy, there would be eligibility for sick leave
benefits. This later proposition is established in the Thompson Products, case, supra. In that case, the employee's condition
of varicose veins resulted in her leaving work earlier than she would have had to merely because of the pregnancy and she
was considered eligible for sick leave benefits for the period between the accelerated leaving and when she would have
left but for the condition. Similarly, if an employee became ill with some totally unrelated illness during the pregnancy
such illness would make the employee eligible for sick leave benefits. Therefore, what the Hospital is arguing is that
in the one case where the illness is pregnancy related, rather than an unrelated illness or a pre-existing condition, that
the only provision available to the grievor is the Maternity Leave, Article 15. That in this one case Article 15 and 27
are two separate and distinct categories with no overlap. In the case of pre-existing conditions and unrelated illness,
there is overlap between the two Articles. There does not appear to be any contract language to support the Hospital's
proposition of two separate regimes in the one situation where the grievor's illness is pregnancy related, when the two
articles are not separate regimes for other situations arising during pregnancy. If the grievor's complaints were not an
illness, as this Board has found them to be, but complaints in the normal course of a healthy normal pregnancy, then the
hospital would be correct in its argument. Article 15 in such a case provides for a sufficiently lengthy period of time to
take account of varying human tolerances of the pregnant condition and the employee would merely be entitled to the
benefits of Article 15. However, in a case such as the present one, there is no reason to treat an illness arising because
of pregnancy differently to an unrelated illness which happens to occur during the condition of pregnancy. If there was
such an intention to do so, the wording would have to be direct and precise in indicating this to be the case. No such
wording being present, the grievor is entitled to the benefits of Article 27 for the period of her illness.

27 The grievor's illness arose on September 1st, 1977. The maximum period for which the grievor can claim the sick
pay benefit under the terms of the Hospitals of Ontario Disability Income Plan is fifteen weeks. That period would expire
on December 15th, 1977. Therefore, the grievor should receive whatever the appropriate amount of benefits under the
formula in the plan may be, less the days from September 2nd to 4th for which she has already been paid.

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

28 The evidence establishes that by December 15th, 1977, the grievor was mobile and her activity was showing
a progressive increase prior to that time. The letter from Dr. Van Cott indicates that by his examination on the 26th
day of January, the foetus was growing at a normal rate. The Board concludes that the grievor could be considered as
having a normal healthy pregnancy by that date if not some earlier date. Taking into account that the grievor applied
for Maternity Leave under Article 15 on September 13th, 1977 and the fact that the grievor has not worked at any time
up to the date of the hearing, it seems appropriate and fair that the grievor should be considered as having been absent
from work under the provisions of Article 15 concerning Maternity Leave from December 15th, 1977.

29 The Board, therefore, upholds the grievance of Mrs. Carmichael and orders the hospital to pay the grievor the
compensation to which she is entitled by virtue of this award.

30 As was agreed by the parties on the day of the hearing, the Board retains jurisdiction to deal with the implementation
of the compensation aspect of this award should the parties be unable to reach an agreement as to the proper amount
of compensation.

G. F. Pike, Hospital Nominee:

DISSENT

31 Having read the Chairman's Award, Professor R. H. McLaren, I am of the opinion that in order for the grievor to
be eligible for sick benefits under the Hospitals of Ontario Disability Income Plan a pre-existing condition must have been
established by the Union in evidence before the Board. As the Union were unable to establish this fact, the Board should
then turn to the Collective Agreements which clearly identifies the agreement between the parties in separate articles of
how to deal with sick payments under the Hospitals of Ontario Disability Income Plan, Article 27 and Maternity Leave,
Article 15. The parties setting out the two Articles in the Collective Agreement, separately, are clearly indicating that the
Agreement was to deal with maternity leave and sick leave payments separately.

32 In the Arbitration Case Windsor Raceway Holdings Ltd. and Hotel Restaurant Employee's Union Local 743 under
G. R. Stewart, Chairman, the Board found the following:

33 As to the Union's submission that absence due to complications involved with a pregnancy should entitle an
employee to sick leave, the Board noted that, in certain circumstances, entitlement might arise:

...there can, indeed, be some pregnancy-related complications such as would properly qualify, under some collective
agreements, as sickness and would thereby, under those agreements entitle the employee to claim the sick-leave
benefits therein provided.

34 In this case, there had been no pre-existing condition established. In the second case, which was discussed at the
hearing J. D. O'Shea, Chairman, first ruled that, pregnancy, per se, was not a sickness:

It is a normal biological function. It would be both a distinction and an insult to characterize a pregnancy as a
"sickness". While a pregnant women may suffer real illness because of pregnancy, the pregnancy itself cannot be
construed as an illness. Although the parties to a Collective Agreement may agree to treat a pregnancy as an illness
for the purpose of the payment of sick leave, it is clear that the parties in this matter have not agreed to do so.

35 In this case and other cases identified by the Union at the hearing a pre-existing physical abnormalities was proved
to exist prior to the pregnancy and was then aggravated by the pregnancy. The case before us now has not established
that a pre-existing condition existed prior to the pregnancy.

36 I am of the opinion that Mrs. Carmichael should have been granted maternity leave under the terms and conditions
agreed to in the Collective Agreement. This would enable Mrs. Carmichael to have the six months leave of absence plus
any time required following the delivery in March of 1978 in accordance with the Employment Standards Act.

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Hotel Dieu Hospital, Kingston v. O.P.S.E.U., 1978 CarswellOnt 832
1978 CarswellOnt 832, 17 L.A.C. (2d) 358

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