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Arbitrator Upholds College’s Requirement that Employee be in Receipt of Employment Insurance Benefits to Receive SUB Payments
Date: July 21, 2021
In Re Niagara College v. Ontario Public Service Employees Union, Arbitrator Schmidt held that revisions to pregnancy and parental leave provisions in the 2017 – 2021 academic collective agreement did not extend entitlement to Supplementary Unemployment Benefits (SUB) where an employee’s entitlement to employment insurance (EI) benefits had been exhausted.
In the 2017 negotiations, the College Employer Council (CEC) and OPSEU (Union) negotiated changes to Article 22 concerning pregnancy and parental leave and SUB. The relevant portion of the amended language provided:
22.02 C Payments made according to the Supplementary Unemployment Benefit Plan will consist of the following:
(i) for the waiting period of the first leave taken under Article 22.01 A and/or
22.01 B and or 22.01 C, as applicable, during which the employee is serving the Employment Insurance waiting period, a payment equivalent to 93% of the regular salary which the employee would otherwise have earned during the period;
and
(ii) for up to a maximum of 51 additional weeks while the employee is on pregnancy and/or parental leave, and provided the employee is eligible to receive Employment Insurance (E.I.) benefits pursuant to Sections 22 or 23 Employment Insurance Act, S.C. 1996, c.23, as amended from time to time, or was eligible to receive such E.I. benefits but has received the maximum number of weeks payable, payments equivalent to the difference between the sum of the weekly E.I. benefits the employee is eligible to receive and any other earnings received by the employee, and 93% of the regular salary which the employee would otherwise have earned during such period. The weekly top-up payment will be calculated using the weekly E.I. benefit that would be payable to the employee (i.e. 55%) without regard to any election by the employee to receive a lower E.I. benefit spread over a longer period of time as may be permitted under the Employment Insurance Act. [emphasis added]
The Union argued that the amendment entitled employees to SUB where they had otherwise exhausted their entitlement to EI benefits. The Union’s argument was based on a plain reading of Article 22.02 C (ii). In the case at hand, the grievor and his wife had shared the entitlement to parental leave. The grievor took nine weeks of parental leave. Owing to the fact that his wife had already taken some parental leave, the grievor qualified for EI benefits only during the first six weeks of his parental leave and not during the last three weeks because the entitlement to EI had been exhausted. The Union argued that the passage in Article 22 “or was eligible to receive such E.I. benefits but has received the maximum number of weeks payable” meant that the grievor was entitled to receive SUB for the last three weeks of his parental leave notwithstanding that he did not receive EI benefits for those weeks.
The College argued that the Arbitrator should have regard to the circumstances in which the amendments to the provision had been negotiated. Specifically, the federal government had reduced the EI waiting period from two weeks to one and had provided for reduced EI benefits for up to 63 weeks. The College argued that considering this context, the parties intended to adjust only their existing language to take account of the legislative change and not to extend a wholly new parental leave SUB entitlement to employees.
Significantly, Arbitrator Schmidt held that she was required to give full consideration to the circumstances in which the parties negotiated their agreement in order to “divine the mutual and objective intentions of the parties as expressed in the language of the collective agreement.” The Arbitrator applied the principles expressed by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. and reasoned that “a consideration of the context in which the written agreement was made is an integral part of the interpretative process and is not something that is resorted to only where the words viewed in isolation suggest some ambiguity.”
Arbitrator Schmidt found that the Union’s argument might be sound if she were to consider only “the words of Article 22.02 C with none of the context in which those words were negotiated.” She accepted the College’s argument that “the words ‘or was eligible to receive such E.I. benefits but has received the maximum number of weeks payable’ were not aimed at conferring upon employees a new entitlement to SUB payments in the absence of actual receipt of E.I. benefits” and reasoned:
28. … The College argues that those words were added solely to preserve the full 52-week entitlement for employees who continue to be on leave that week and who had received the maximum 50 weeks of EI benefits. I agree that that is the most plausible of the two competing interpretations advanced by the parties. It is the interpretation that is consistent with the words of Article 22 as a whole and consistent with what the parties knew and understood at the time they entered into their bargain. The parties were faced with legislative amendments that required them to reassess the language of Article 22.02 C in order to preserve the employee entitlements to SUB in their entirety. … The fact of the matter is that the language in issue does not support the Union’s position in the context of the statutory changes whose impact is clearly reflected in the language changes that were written into Article 22.02 C.
The arbitration was argued by Hicks Morley’s Tim Liznick and Natasha Monkman. The decision is important for Colleges in that it recognizes the requirement that an employee be in receipt of EI benefits in order to receive SUB and the importance of giving effect to the context in which language is negotiated in determining its meaning.
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