The Ontario Divisional Court recently held in the case of The Ottawa Hospital v. OPSEU Local 464 that a collective agreement provision:
"... discriminates against a worker with a partial disability, at least to the following extent: a worker who has returned to work part-time after using the short term disability provision and who works continuously but at a reduced level is unable to access a further period of short term disability, if he or she subsequently suffers from another short term disability."
The collective agreement provision in question provided as follows:
If you become Totally Disabled and are unable to work, you may receive a Sick Pay benefit from your employer of up to 100 percent of your earnings for up to the first 15 weeks of your disability. Your benefit amount will depend on your regular earnings and your length of service.
When you return to work after an absence due to a Total Disability and work for three continuous weeks, your benefit period of 15 calendar weeks will be reinstated in full. However, if within the three regular work weeks following your return to work you are disabled from the same or a related cause, only the remainder of the 15 calendar week benefit will apply.
In reaching the conclusion that the article was discriminatory in the sense mentioned above, the Court considered the Supreme Court of Canada case of Battlefords and District Co-operative Ltd. v. Gibbs.
