1.      The parties agree that I am properly constituted as an arbitration board, with jurisdiction to determine the issues in dispute. This matter was filed to arbitration pursuant to section 104 of the Code with a brief timeline extension granted by counsel due to exigent circumstances. The parties proceeded via written submissions accompanied by significant documentation.

2.      The issue in this matter is whether the Employer violated Section 49.1 of the Employment Standards Act R.S.B.C. 1996 c.113 [the “Act”] by refusing to pay employees (with service greater than six months) for absences due to illness or injury, including COVID-19 related absences, especially where the absences would be paid by an employee-funded plan administered by the Union.

3.      At the material times, the parties were governed by the terms and conditions of their 2020 – 2021 Collective Agreement which included Article 12.3 Sick Leave and Gratuity Plan. Article

4.      Article 12.3B. Short-Term Non-Occupational Illness or Injury Plan establishes a system to allow paid benefits for authorized sick leave absences. The first 4 days of sick leave are not paid by the Employer. Instead, per Article 12.3B.(1) the Union undertakes responsibility for the wages covering the first four (4) shifts of any non-occupational illness or injury and, has created a fund for that purpose [the “Fund”].

5.      Under the negotiated system, the Employer directly pays the employee’s net pay for the 4 days of absence due to non-occupational illness or injury then invoices the Fund.

6.      The Fund is created from Union member contributions and is based on a percentage of base salary; the exact amount is established by the Union based on its Vancouver Fire Fighters, International Association of Fire Fighters, Local 18 Membership Policies. [the “Union Policies”].

7.      The Union Policies established a Sick Leave Premium Structure where premiums are based on usage. Individual usage [2014 to date] is tracked by the Union and captured on spreadsheets entitled Local 18 Sick Fund Members Sick Premiums and Expenses and Sick Funds Year to Date. Article 12.3C(2) also indicates: “A deduction is made from the current year’s gratuity credits for all hours absent on sick leave with pay…”.

8.      Sections 49.1(1)(2)(3) and (4) of the Act read [emphasis added]:

9.  In addition to the Act, counsel also referenced the following legislation (as well as references to several related Debates of the British Columbia Legislative Assembly [the “Hansards”]):

10.   Part 7.02, Article 45.031 Illness or Injury Leave of the Regulations, indicates that “for the purposes of Section 49.1(1)(a) of the Act, the prescribed number of days is 5 days”.

11.   Bill 13 amended Section 49.1 of the Act; repealing subsection (1) and replacing it with:

12.   Originally the Act contained Sections 3(2) and (3) Scope of This Act which required analysis of certain provisions (special clothing, hours of work or overtime, statutory holidays, annual vacation or vacation pay, seniority retention, recall, termination of employment or layoff). If those provisions, read together, met or exceeded the collective agreement provisions, they replaced the Act requirements; if not, the named provisions of the Act were deemed incorporated into the collective agreement.

13.   Bill 13 added “paid personal illness or injury leave” to the meet or exceed provisions of a collective agreement to be considered together when assessing the Act requirements.

14.   Bill 19 removed the meet or exceed exceptions to the Act and repealed the reference to “each employment year” in Section 49.1(1) of the Act, substituting: “each calendar year”. The Explanatory notes for Bill 19 pertaining to Section 3 of the Act, indicate: “the paid personal illness or injury leave requirements of the Act are minimum requirements that apply even if a collective agreement contains provisions that meet or exceed those requirements”.

15.   The Employer made the 5 paid days of sick leave available to employees with less than six months of service. The Employer denied the option of using the five days of paid sick leave

16.   In a December 22, 2021 email, the Employer indicated it had “undertaken a review of the VFU collective agreement and determined that the existing provisions meet or exceed the requirements of [the Act]”. On December 24, 2021, the Union sought further clarification and detailed data but did not receive a response.

17.   On May 5, 2022, the Union advised of its conclusion that the Employer was “statutorily required to provide employees with the prescribed number of paid sick days at a minimum”.

18.   On May 31, 2022, the Employer issued a message to Fire Department personnel indicating that the effect of March 21, 2022 changes to the Act was to “expand the benefit to additional employee groups who are now eligible and will require us to change our current practices and processes at the City. There would be no change in entitlement for employees who already receive at least five days of paid sick leave per calendar year…”.

19.   On June 1, 2022, the Employer provided the Union with its position regarding the legislative changes and indicated there would not be any changes to the administration of Collective Agreement sick days.

20.   On June 15, 2022, the Union filed a grievance challenging the Employer’s decision and on September 14, 2022, the matter was moved to expedited arbitration under the Code.

21.   The Union argues that all employees must have access the five paid sick days under Bill 13 and Bill 19 prior to accessing the Fund because the Employer does not have discretion to refuse payment to any individual member for statutory entitlements. The Union relies on the Employment Standards Branch Guideline, particularly: “Illness or injury leave is an employee-initiated leave. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer…employees decide whether they are requesting paid or unpaid leave”.

22.   The Union further submits that the change to the meet or exceed test was in force from January 1, 2022 because the timeline changed from employment year to calendar year.

23.   The Union relies on the March 29, 2022 Bill 19 Hansard statements by the Minister of Labour and argues that the comments clearly establish that the Legislature intended to expand entitlement to include employees covered by collective agreements.

24.   The Union further asserts that the presence of the Fund (financed by members’ wages) cannot operate to undermine the Employer’s obligations to provide five Employer-paid sick days and additional benefits over and above the minimum five sick days must remain intact.

25.   The Union submits that the use of the 5 days cannot result in a reduction in gratuity days because the penalty is a disincentive that limits access to a statutory entitlement.

26.   The Union relies on its spreadsheet entitled “ESA Days Covered by Sick Fund” which compares sick leave shifts taken by an employee with the days that should have been

27.   The Union relies on: Excel Transportation and USW, Local 1-2017 (Overtime Grievance), [2021] BCCAAA No. 117 (Matacheskie)(affirmed in 2021 BCLRB 175); B.C.G.E.U v B.C. Government Personnel Services Division, 1987 CanLII 2723 (BC CA), [1987] BCJ No. 391; and, Rizzo and Rizzo Shoes Ltd. 1998 CanLII 837 (SCC), [1998] 1 SCR 27.

28.   The Union submits that ten other Fire Departments have the same or similar schemes where the first few days of sick leave are unpaid but covered by funds pooled by employees. Eight of those areas have filed grievances that are being held in abeyance. The Union notes that the City of Burnaby has implemented the legislative changes and started to pay sick leave under the Act prior to requiring employees to access unpaid leave.

29.   The Union requests that the grievance be upheld and seeks:

30.   In support of its damage claims The Union relies on Vancouver (City) and IAFF, Local 18 (Craven) 2021 CarswellBC 835 (Glass) and particularly Arbitrator Glass’ conclusions that arbitrators have the jurisdiction to award punitive damages and deterrence from future violations and an encouragement to find systematic improvements to avoid future violations can be meaningful elements of a damage award.

31.   The Employer argues that the principles of statutory interpretation (and a review of the Bill 13 Hansard comments) support its interpretation of Section 49.1 of the Act; demonstrating that the legislature intended only to protect workers who are not entitled to any paid sick leave and who would face a loss of income if they stayed home from work due to illness. In particular, the Employer says the Bill 13 Hansards clearly show the legislature’s intention in introducing paid COVID-19 related and other sick leave in Section 49.1, was to ensure workers did not have to choose between going to work ill or staying home without pay.

32.   The Employer points to the following Bill 13 Hansard comments (May 12, 2021, page 1770) by the Honourable Minister of Labour:

33.   According to the Employer, employees are already entitled to 5 paid sick days and therefore, are not subjected to the type of mischief that the legislature cured in the Bills. The Collective Agreement provisions demonstrate that the Union’s members already have paid sick days.

34.   The Employer says that the comments of the SCC in Rizzo, supra, are a clear endorsement of the use of use of Hansards as long if they are not used to override specific text and intention. Counsel points to the recent R v. Khill, 2021 SCC 37, in which the Court confirmed extrinsic evidence is not more important than the legislative text and its role should not be overstated.

35.   The Employer further submits that Hansard comments cannot be relied upon to override specific text in legislation, and it is not the role of an adjudicator, engaged in interpreting a statute, to add words to a statute via the process of statutory interpretation.

36.   The Employer further asserts that actual words of the statute must not be distorted and should be read harmoniously with the scheme of the statute, its objects and the intention of the legislature role so as to avoid making the provision say something it does not [Telus Communications v Wellman 2019 SCC 19 (CanLII), [2019] S.C.J. 19].

37.   The Employer submits that there is no support in the language of the provision or any of the legislative debates (Bill 13 or Bill 19) for the idea that the legislature intended to give 5 more sick days to workers who already had at least 5 paid sick leave days, or that the legislature intended to give employees the right to elect which types of sick leave to take.

38.   According to the Employer, Bill 19 then addressed a reported trend that employers were relying on alternative sick leave provisions (i.e., short term disability plans) to show that their situation “meets or exceeds” the Bill 13 requirement. However, the Employer says employees in the current matter have 5 days of sick leave, paid from the first day of illness.

39.   Counsel relies on the March 29, 2022 Minister of Labour’s Bill 19 Hansard comments (page 5412): “To strengthen the paid sick leave entitlement and ensure that all workers covered by the Employers’ Standard Act receive that benefit, the second part of these legislative changes will remove

40.   The Employer argues it is clear that Bill 19, the current legislative scheme, was intended to provide 5 paid sick leave days to those employees covered by collective agreements who do not currently receive at least 5 paid sick leave days, but the current employees already receive this benefit and are not entitled to additional days.

41.   The Employer submits the Union’s interpretation would lead to an absurd result, violating well-established principles of statutory interpretation that avoid absurd consequences such as consequences that are ridiculous, frivolous, extremely unreasonable, inequitable or defeat the purpose of a statute or render some aspect of it pointless or futile. The Employer submits that illogical, incoherent, internally incompatible interpretations should also be avoided.

42.   The Employer further denies that there is any basis for the Union’s damage claims. Counsel further asserts that the Union has not provided any explanation as to why it would be appropriate to award punitive damages in addition to compensatory damages.

43.   The Employer argues that it is not unusual or malicious when parties simply disagree about statutory or collective agreement interpretation and the fact that one of them might be wrong in hindsight does not merit punitive damages. The Employer submits that the Union’s claim of $12,500 has been plucked out of thin air, is without foundation and must be denied.

44.   The Employer submits that the grievance must be dismissed.

45.   In reply, the Union submits that the Employer’s positions are contrary to the plain wording of Section 49.1 of the Act and its legislative history including the effect of Bill 19 which clearly ended the “meets or exceeds” test for illness or injury leave. The Union argues that employees do not have access to any paid sick leave whatsoever and have to make a financial choice. They cannot access paid sick leave without exhausting a four-shift unpaid waiting period. The presence of the Fund is irrelevant to the Employer’s statutory duty.

46.   The Union further asserts that where the bargaining unit members are able to access paid sick leave, the sick leave is issued in an amount or manner that does not meet the requirements of the Act. The Union points to Section 49.1(4) which mandates that employees be paid “an amount equal to at least the amount calculated in accordance with the regulations” based on the calculation established under Section 49.1(3).

47.   The Union submits that the Employer erred in suggesting that the meets or exceeds test is met simply by accessing whether the employees have access to paid sick days and instead requires a broader review such as consideration of the facts that: employees may lose a shift through gratuity reduction; monies from the Fund are based on rank so there is a loss to employees in acting ranks; and, sick leave access is based on credits in a bank, the level of which can change during the year as sick leave is used. The Union further asserts that

48.   The Union maintains that the facts support damages and administrative penalties.

49.   The parties presented fulsome written arguments each of which was reviewed and fully considered. Due to the sheer volume of the total submissions and documents, this decision is provided in a summary manner due to the expedited nature of the proceeding.

50.   Section 49.1(1) of the Act provided each employee with paid leave for up to 5 days for personal illness or injury after 90 consecutive days of employment. Bill 13 expanded Section (3)(2)(3) of the Act to include analysis of “paid personal illness or injury leave” provisions of collective agreements. Where the provisions of a collective agreement, considered together, meet or exceed the requirements those provisions replace the requirements under the Act. If not, then that part of the Act is deemed incorporated into the collective agreement.

51.   It is not disputed that the purpose of Bill 13 is to provide paid sick leave coverage to employees in order to encourage sick employees to remain off work (i.e., in order to prevent the further spread of COVID-19 during a global pandemic). An illustrative example of the purpose of Bill 13 is shown in the May 12, 2021 Hansards, where the Honourable Minister of Labour states that more than 50% of employees in the Province do not have paid sick leave coverage and must choose between going to work sick and infecting others or losing pay. such comments as these (outlined in great detail by counsel in their submissions), elucidate (i.e., as opposed to distort) the actual words of the statute, when read harmoniously with its scheme, its objects and the intention of the legislature [Telus, supra].

52.   The current parties have negotiated specific paid sick leave coverage: the first four days are paid by the Fund then paid by the Employer (from a sick bank). Article 12.3A. provides sick leave in the form of ten-shift credits on June 30 and December 31 of each year. The Act requires at least five shifts; a threshold clearly met by the ten-shift credits.

53.   The Union points to the potential differential rate of pay (which may be lower than prescribed) and the impact on gratuity days. However, I note that the employee receives sick leave at the rate of pay attributed to their rank and receives it without a waiting period. The Employer then invoices the Fund for reimbursement. These factors alone - part of an overall scheme negotiated by the parties - are insufficient to ground a conclusion that the Bill 13 requirements are not met or exceeded.

54.   Employees have access to a significant and comprehensive sick leave coverage. The coverage includes five paid sick leave days from the beginning of their illness paid for directly by the Employer and, in the case of the first four days, refunded to the Employer from the Fund. Therefore, objectively, members do have instant access to paid sick days. The arrangement that provides payment is part of the overall benefits scheme that the parties created and is based, at least in part, on the negotiated agreements reached by the parties in collective

55.   The Union also points to the 0.5% increases in required employee contributions that are incurred at various points depending on the member’s usage. However, this administration of the Fund is unilaterally determined by the Union’s membership and, as outlined in the Union Policies, its membership has agreed to those rules. This situation – outside the scope and purview of the Employer - is insufficient to permit a conclusion that the Collective Agreement does not meet or exceed the requirements of the Bill 13.

56.   In my view, to conclude otherwise would require me to expand the scope of the intended coverage and interpret in a way that is inconsistent with the purpose of Bill 13:

57.   In conclusion, a review of the relevant Collective Agreement provisions, taken as a whole, leads me to the conclusion that the negotiated sick leave provisions meet or exceed the requirements of Bill 13. Therefore, I have concluded that the employees covered by the Fund are not entitled to the additional sick leave coverage as outlined in Bill 13.

58.   In my view, Bill 19 purposely expanded the scope of employees entitled to 5 employer-paid sick days under the Act by removing the meets or exceeds test from consideration of entitlement under Section 49.1(1). The effect was to ensure that each worker has five sick days fully paid by the Employer per calendar year regardless of whether the Collective Agreement contains sick leave provisions. This conclusion is consistent with the stated purpose of the legislation, as outlined throughout the Hansards (i.e., the Minister of Labour’s comment in the March 29, 2022 Hansards, page 799: “Nobody should be forced to make that decision to go to work sick or stay home and lose wages”.)

59.   The Bill 19 sick days are 5 fully-paid sick days, renewed each calendar year, used the first 5 days of illness. They prevent each employee from having to bear any financial risk that could encourage attendance work with an illness (i.e., COVID-19).

60.   I agree with the Union’s conclusion that the sick days conferred by the Act are qualitatively different sick days; they are fully-paid sick days; sick days without penalties (i.e., loss of gratuity days or Fund penalties). The parameters are based on the formula in Section 49.1(3) and (4) of the Act. Unlike group benefit plans which contemplate trade-offs and allow for cost sharing or payment reductions under sick banks, this is an individual statutory entitlement not a collective one and therefore, the rate of pay received by an employee cannot be reduced through negotiation by the parties.

61.   Finally, the Union has argued that the change to the meet or exceed test should be in force from January 1, 2022 due to the change from calculation by employment year to calendar year. I do not agree that the switch from employment year to calendar year, in itself would be sufficient to ground such an expansion of the right. If the legislature sought to make the entitlements retroactive to January 1, 2022, it would have used explicit language to indicate this expansion. To impose retroactivity, I would be required to effectively add language to the legislation, a task that exceeds my jurisdiction and is also contrary to the clear limitations on interpretation outlined in the case law (see, for example: Telus Communications, supra). Therefore, the entitlement begins on the date of the Royal Assent of Bill 19: March 31, 2022.

62.   The Union has produced some of the information relied on for its quantum (monies due to the Fund and individual employees) with a caveat that the information emanated directly or indirectly from the Employer’s payroll or from invoices to the Fund. The Union has noted that such information was therefore potentially incomplete.

63.   In light of the number of potential variables the Union is provided with a further opportunity to review the information, obtain clarification of the same and reach a final quantum. I order the Employer to provide access to relevant information. Accordingly, I refer the issue of quantum back to the parties for resolution and retain jurisdiction if it cannot be resolved.

64.   The Union has argued in favour of damages including punitive damages and cites the need for deterrence as a principle in City of Vancouver, supra. However, in my view, damages are an extraordinary remedy, and this matter is distinguishable from the 2021 matter. First, the current matter involved the interpretation and administration of a legislative change imposed without any implementation period. Second, the 2021 matter included “a prolonged history of authorized deductions going back at least to 2012”. The Employer has not exhibited any such action in the current matter.

65.   Moreover, in the 2021 matter, the City had exhibited a “lack and focused corporate will to address the problem in an organized way…”. In the current matter, the Employer promptly implemented the additional entitlement for all new employees not covered by the jointly negotiated health and welfare plan and the current delay for other employees was the result of a different (but reasoned) opinion; albeit one that differed from the Union’s conclusion.

66.   The Union points to delays in response and explanations from the Employer. While it may have been preferable to have faster, detailed explanations, I am satisfied based on arguments presented by the Employer (which are consistent with the information the Union received from Human Resources) that the impact of any delay was minimal overall, and analysis of position was outlined for the Union within a reasonable time after the grievance was filed.

67.   Under the circumstances, I decline to award damages.

68.   In summary: