IN THE MATTER OF AN ARBITRATION

BETWEEN: VIA RAIL CANADA INC.

AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS’ UNION

(CAW/TCA CANADA)

AND IN THE MATTER OF A POLICY GRIEVANCE RELATING TO THE DENTAL PLAN

ARBITRATOR: J.F.W. Weatherill

A hearing in this matter was held at Montréal on January 27, 2012. Written arguments were submitted on February 14 and 17, 2012.

A. Rosner, for the Union.

P. Lamarre, for the Corporation.

AWARD

In an interim Award dated December 1, 2011, I determined that I had jurisdiction to decide the particular question before me, which was formulated as follows, at p. 7 of the Award:

DISPUTE:

The amount of insurance coverage for scaling teeth as a result of the memorandum of agreement dated June 26, 2010.

JOINT STATEMENT OF ISSUE:

The memorandum of agreement dated June 26, 2010 provided that there would be a “co-pay of 20% on endodontic and periodontal services”.

The Union contends that the change set out at clause 6 (c) has no application to the “cleaning and scaling of teeth”, a prophylactic procedure which continues to be reimbursed at 100%.

The Corporation contends that a single unit of scaling is preventative and is eligible for coverage at 100%. Multiple units of scaling are periodontal treatment and are eligible for coverage at 80% with co-pay by the employee at 20%.

The Union submits the Corporation’s position and practice is in violation of the terms of the Dental Plan Agreement (specifically Appendix A, sub-section A.1(a)(ii) thereof) as amended by the June 26, 2010 Memorandum of Agreement. The Union requests a declaration to this effect and that any affected employees be made whole.

The Corporation submits that the insurance coverage provided for scaling teeth is in accordance with the memorandum of agreement of June 26, 2010. It follows the standard application of periodontal procedures of the insurer and is in keeping with generally accepted dental standards and practices. The Corporation asks that the grievance be dismissed.

For dental claims which originate on or after October 20, 2010, each Eligible Employee , subject to the provisions of article IV.4 [which describes maximum yearly coverage] shall be entitled to claim as follows:

(a) Basic Dental Plan

For basic dental services, reimbursement of costs incurred up to 100% of Covered Expenses, except for periodontal and endodontic treatments which are reimbursed up to 80% of Covered Expenses, as shown in Appendix “A”;

(b) Major Dental Plan

For major dental services, reimbursement of costs incurred up to 50% of Covered Expenses as shown in Appendix “A”.

Basic Expenses

100% reimbursable up to maximum limit

Routine treatment rendered or prescribed by a Physician, Surgeon, Dentist or Oral Surgeon, or rendered by a Dental assistant under the direct supervision of a Physician, Surgeon, Dentist or Oral Surgeon, or rendered by a Dental Mechanic:

(a) The following services (i) to (iv) inclusive, each limited to once every nine (9) months effective January 1, 2008.

(i) oral examination;

(ii) prophylaxis (the cleaning and scaling of teeth);

(iii) bite-wing x-rays;

(iv) topical application of fluoride solutions;

(b) Full-mouth series of x-rays, provided - - - .

(c) Extractions and alveolectomy at the time of tooth extraction.

(d) Amalgam, silicate, acrylic and composite restorations.

(e) Dental surgery.

(f) Diagnostic x-ray and laboratory procedures required in relation to dental surgery.

(g) General anaesthesia required in relation to dental surgery.

(h) Necessary treatment for relief of dental pain.

(i) The cost of medication - - - .

(j) Space maintainers - - - .

(k) Consultations - - - .

(l) Surgical removal of tumors, cysts, neoplasms.

(m) Incision and drainage of an abscess.

80% reimbursable up to maximum limit:

(a) Periodontal treatment - the treatment of gums and bone surrounding the teeth.

(b) Endodontic treatment - diagnosis and treatment of diseases of the nerve, including root canal therapy.

The portions of article A.1 set out in bold type were added as a result of the negotiations leading to the current collective agreement and the current Dental Plan.

The issue in the instant case has arisen because the Service Organization - the institution appointed by the Corporation as contemplated by article 1(h) of the Dental Plan Agreement (that is, the insurer) - has refused to reimburse 100% of costs incurred for the cleaning and scaling of teeth in cases where such procedure exceeds one unit (15 minutes). Cleaning and scaling in excess of one unit is now considered by the Corporation and the insurer to be periodontal treatment, and is accordingly reimbursed at 80% (except, it seems, for the first unit). The question of whether or not a particular claim is to be paid, or at what rate, is not before me, as has been determined in the interim Award in this matter. The question properly before me is whether or not, in arranging insurance which provides for the reimbursement of scaling and cleaning in this revised way (there is no doubt that it was previously reimbursed in its entirety at 100%), the Corporation has met its obligation under the collective agreement and the Dental Plan.

The Corporation called evidence both with respect to the meaning of the terms in question as they appear in dental codes throughout Canada, and with respect to the negotiations which led to the current collective agreement and Dental Plan.

With respect to the first issue, it was the evidence of Dr. Montminy, a dentist, that the term “prophylaxis” means, as a general term, the prevention of disease. That is certainly in accordance with its common use. In dental usage, it was his evidence that it was synonymous with polishing. “Scaling”, he testified, was not prophylaxis but “can be an initial portion of periodontic treatment”. “Prophylaxis”, he stated, “never includes scaling”, and so the description of prophylaxis in article A.1(a) of Appendix “A” to the Dental Plan is “wrong”. Dr. Montminy agreed that “periodontal treatment” referred to treatment of gums and bone surrounding the teeth. The evidence did not deal with the question of how cleaning and scaling, reimbursed at 100% for one unit of time, becomes periodontal treatment when it is carried out for more than one unit.

Having regard to the evidence, it does not appear to me that the scaling of teeth is necessarily a periodontic procedure, although I do not doubt that it may be an initial portion of such treatment in some cases. More significantly, however, I do not consider that the evidence is relevant to the particular question before me. The parties themselves, even if they are “wrong” from a professional point of view, have given their own definition to the terms used in Appendix “A”. The cleaning and scaling of teeth is the dental-care activity which, the parties have agreed, is to be reimbursed at 100%. Such work is obviously “prophylaxis” in a general sense, but more importantly, it is the particular work agreed to be reimbursed in full.

With respect to the negotiations leading to the agreement, the evidence, again, is not in dispute. The union was seeking a Health Care Spending Account. This was an expensive item, and changes to the existing benefits plans were suggested which would at least partially offset that cost. These changes included an increase in the deductible for prescription drugs, the substitution of generic drugs, and a change from 100% to 80% reimbursement for periodontal and endodontic treatments in the Dental Plan. The Corporation obtained, through its consultants, an estimate of the cost savings which would result from these changes. The union was advised what the estimate was. Negotiations continued, and the ultimate agreement included the changes to the Dental Plan set out above. The idea that one unit of “prophylaxis” was to be reimbursed at 100% and multiple units at 80% was not discussed, and the application of that policy was not known, apparently to either party, until a grievance was filed. Having regard to this evidence, I cannot agree with the argument of the Corporation that

No such mutual intention appears in the collective agreement or in the Dental Plan. Appendix “A” continues the provision for 100% coverage of “prophylaxis (the cleaning and scaling of teeth)”, while adding the exception for 80% coverage of periodontal and endodontic treatment. A reading of the Plan gives no suggestion that, as a change to previous coverage, “scaling” becomes “periodontal treatment”, after one unit of activity. This reading of Appendix “A” respects both the continuing and the new language. The Corporation’s interpretation involves a contradiction: if, as its evidence would lead one to conclude, all scaling is periodontal treatment, the reimbursement at 100% of the first unit of such treatment would be unnecessary - it should all be at 80%. In that case, the provision for 100% reimbursement of “prophylaxis” (at least insofar as it involves scaling) would become meaningless.

To return briefly to the evidence regarding scaling: I have no doubt that Dr. Montminy is correct in saying that scaling creates (in whatever degree), bleeding from the gums. It does not follow from that (nor was this explicitly the evidence) that any dental work touching the gums is necessarily “periodontal”. Of course article A.1(b) of Appendix “A” defines periodontal treatment as “the treatment of gums and bone surrounding the teeth”. It is important to note that it is “treatment” that is referred to. A glance at the “basic expenses” listed in sub-paragraphs (a) to (m) of article A.1 of Appendix “A” makes it clear (no expertise is required) that these are procedures - all covered at 100% - which would necessarily involve some contact with the gums. They are not, simply for that reason, “the treatment of gums” (within the meaning of subparagraph (a)), and thus periodontal treatments which would be covered at 80%. Otherwise, most of those provisions would, again, be meaningless.

For all of the foregoing reasons, I conclude that the plain meaning of the provisions of the Dental Plan agreed to by the parties pursuant to the collective agreement must prevail. The Corporation’s obligation is to provide insurance which will reimburse the costs of cleaning and scaling teeth up to 100%, subject to the limitations set out in the Plan. Insurance which covers only the first unit of such work at 100%, and which is reduced to 80% thereafter, is not, I find, insurance which meets the requirements of the dental plan. Accordingly, the grievance succeeds.

It is my award that the Corporation is in violation of the collective agreement and that employees adversely affected are entitled to compensation. I remain seised of the matter for the purpose of determining any compensation which may be payable, and to complete the award.