Union claims victory in ruling on health premium

Premier Dalton McGuinty’s government is back in the hot seat over its health premium after three judges upheld a ruling that an employer — a nursing home in Guelph — must pay the tax for its unionized staff.

It’s the first time a case over the controversial premium of up to $900 per person has gone to judicial review and the decision could set a new standard in how those disputes are settled, lawyers said yesterday. The judges’ decision in Divisional Court, confirming an earlier ruling by an arbitrator, challenges repeated government statements that individuals are responsible for paying the premium of up to $900 annually.

“ This is definitely a victory for the union,” said Toronto lawyer John Stout, who represented the United Food and Commercial Workers union in the case against Lapointe- Fisher Nursing Home in Guelph. About 70 workers would have their premiums paid under the ruling, which could still be challenged before the Ontario Court of Appeal.

“ Obviously, I’m disappointed in the decision,” said Toronto lawyer Doug Gray, who represented the nursing home and must now decide whether to try to appeal.

While Stout acknowledged the court decision does not set a traditional precedent for similar disputes, which hinge on specific language in workplace contracts, it could be influential in cases where arbitrators have ruled that contract language can be reasonably interpreted as requiring the employer to pay a health tax on behalf of staff.

Last October, arbitrator Anne Barrett ruled that the nursing home should pay the premium despite the fact it is collected through the income tax system and not paid separately.

“ It cannot be said that arbitrator (Anne) Barrett’s award is anything short of reasonable,” justices John O’Driscoll, Tamarin Dunnet and John Jennings wrote in their 13- page ruling released late Monday. Gray challenged Stout’s view of their ruling. “ What that means in other decisions is highly debatable,” he said.

Lawyers for both unions and companies say there have been dozens of arbitrations over who pays the health premium, with more decisions favouring employers than employees. A handful of companies have agreed to pay the premium in settling labour contracts. Tom Hudson, administrator of the nursing home, said he wants the legislation fixed so that companies, which already pay an employer health tax imposed when premiums for the Ontario Health Insurance Plan were scrapped in 1991, won’t be left on the hook.