This case involved a challenge to certain terms of the 1992 Hospitals of Ontario Disability Income Plan (“HOODIP”) that deal with the reinstatement of short-term sick pay benefits for employees returning to work from sick leave. The relevant terms provide that if an employee returns to work for three continuous weeks on regular duties, then their benefits will be reinstated in full. However, an employee who returns to work on a modified work plan (“MWP”) will not qualify for the reinstatement of their benefits, and in fact will continue to deplete their benefits. The Union argued that these terms of HOODIP are discriminatory and thus violate Articles 3.01 of the Collective Agreement as well the Ontario Human Rights Code.

The Board of Arbitration, chaired by Arbitrator Ken Petryshen, allowed the grievance. The Board found that the relevant terms of HOODIP discriminate against disabled employees who return to work on modified duties by not reinstating their benefits after three weeks of employment. This is in contrast to employees who return to regular duties ‚Äčfor more than three weeks, whose benefits are reinstated. In coming to its decision, the Board considered and followed the applicable case law, including Ottawa Hospital v. OPSEU, Local 464, [2008] OLAA No. 266 (Keller), upheld on judicial review in 2009 CanLII 9389 (Ont. Div. Ct.) and Rouge Valley Health System v. ONA, 2014 CarswellOnt6431 (Trachuk), noting that these cases “find that the HOODIP terms that preclude disabled employees returning to work on a MWP from having their short term sick leave benefits reinstated constitute discriminatory treatment within the meaning of the Code.”

In the result, the Board declared the relevant terms of HOOD IP to be discriminatory and directed the Hospital to “consider and comply with its Code obligations when dealing with employees on modified duties who are disabled as defined by the Code.”

This case is a useful precedent. There are several examples of hospitals refusing to follow the Ottawa Hospital and Rouge Valley decisions, which were litigated by OPSEU and ONA respectively, to members of CUPE. This case should ensure that all CUPE­represented employees are treated equally and equitably under HOODIP.