Canada: Divisional Court Upholds Decision Requiring Unionized Employer to Pay Ontario Health Premium

Last Updated: December 13 2005
Article by Dave McKechnie and H.P. Rolph

Originally published in the Employment and Labour Relations Bulletin October 2005

In a somewhat controversial case, the Ontario Divisional Court recently upheld an arbitrator’s decision requiring an employer to pay the Ontario Health Premium on behalf of its employees.

In Lapointe-Fisher Nursing Home v. United Food and Commercial Workers International Union, Local 175/633, a three-judge panel of the Divisional Court found that the arbitrator’s decision was not "patently unreasonable" given the language of the collective agreement between the employer and the union.1

While the Court did not expressly state that it agreed with the arbitrator in Lapointe-Fisher, its language certainly showed strong sympathy for her view, which until now has only been shared by a minority of arbitrators who have considered the issue.

The employer or the union can apply for judicial review of an arbitrator’s decision, but a Court will only intervene if it is of the opinion that the arbitrator’s interpretation of the collective agreement was patently unreasonable. Unlike an appeal, the Court’s role is limited to determining whether the arbitrator’s interpretation was reasonable given the language of the collective agreement. The Court may not agree with the arbitrator’s decision, but the court will not interfere unless the arbitrator was significantly mistaken in his or her interpretation.

Given this standard of review, the Court in Lapointe-Fisher did not find the arbitrator’s decision patently unreasonable. The collective agreement stated that the "Employer agrees to pay 100% of the O.H.I.P premiums for all full-time employees." This language, which originated when individuals were required to pay O.H.I.P. premiums, had remained in the collective agreement over several renewals notwithstanding the elimination of those premiums in 1989. When the new Ontario Health Premium came into effect in 2004, the union argued that the employer was responsible to pay it on behalf of its employees.

The Court relied heavily on another arbitration award, Ontario Power Generation Inc. and Power Workers’ Union, in which it was found that this type of "left-over" language was sufficient to ground the claim for payment of the current premium. The arbitrator in Ontario Power found that by not amending the language, the parties must have intended that if a similar type of premium was introduced in the future, it would be the employer’s responsibility to pay on behalf of individual employees.

The Court stated that such reasoning was "logical, reasonable and compelling," and given the similarities between the language of the collective agreements in the Ontario Power case and in Lapointe-Fisher, the Court found that the arbitrator’s decision was not patently unreasonable.

However, the Court engaged in very little analysis of its own, and while the Lapointe-Fisher decision may lend some support to a union’s claim that the employer is responsible for paying the premium on behalf of its employees, each case will turn on the language of the potential collective agreement in issue. It should be noted that a majority of arbitral decisions in this area have held that the employer is not liable to pay the Ontario Health Premium on behalf of its employees. Arbitrators have done so either by characterizing the Ontario Health Premium as a tax (which, it should be noted, appears to have been the intent of the government in enacting the Ontario Health Premium), or by disagreeing with the reasoning of the arbitrators in Ontario Power and Lapointe-Fisher. Generally, those arbitrators have held that while the parties intended that the employer pay O.H.I.P. premiums when the language was first inserted into the collective agreement, such language does not address any possible future premiums that might be imposed.

It is not certain that the Divisional Court’s decision in Lapointe-Fisher will constitute a binding precedent in these types of cases, given that the Court expressly stated that the arbitrator was "reasonable" as opposed to correct in her conclusion. However, it is a major cause for concern to employers who are parties to collective agreements containing provisions to the effect that the employer will pay any O.H.I.P. premiums. An employer can only hope that the employer will appeal the decision, though given the standard of review there is no guarantee that the Court of Appeal will reverse the decision. Ontario’s Provincial Government could fix the problem by amending the legislation that created the Ontario Health Premium if had the political will to do so.

If you have any questions about the Lapointe-Fisher case or the Ontario Health Premium, please do not hesitate to contact any member of the Employment & Labour Relations group.


1 For more information on the arbitrator’s decision and the Ontario Health Premium, please see our November 2004 Bulletin, "Ontario’s New Health Premium: Robbing Peter to Pay Dalton?" by David Elenbaas and Ivan Luksic.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2005 McMillan Binch Mendelsohn LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dave McKechnie
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.