A recent arbitration decision from Ontario has again placed the spotlight on the definition of “spouse”. In South East Community Care Access Centre and ONA (Greene),119 C.L.A.S. 42, the Ontario Nurses Association (“ONA”) brought a grievance on behalf of one of its members who was denied a paid bereavement leave when the person she considered her “son-in-law” passed away as a result of a workplace accident in 2013.
As expected, the governing collective agreement contained provisions setting out when paid bereavement leave would be granted. The provisions in question provided that the death of an “immediate family” member would entitle the employee to a maximum of three paid days of leave. “Immediate family” was deemed to include sons-in-law. More generous leave entitlements were available for closer family members. The death of the employee’s “spouse”, for example, would entitle her to a maximum of five paid days of bereavement leave.
Importantly, “spouse” was defined within the provision granting bereavement leave for the death of the employee’s spouse to include a “same sex partner or common law partner”. The term “spouse” was not defined in the provision granting leave for immediate family members, nor anywhere else in the bereavement leave provisions.
The South East Community Care Access Centre (the “CCAC”) denied the employee’s leave request and argued the grievance on the basis that the term “son-in-law” did not include common law spouses of children. The CCAC asked the arbitrator to respect the “narrowly defined” list of individuals whose death would entitle the employee to paid leave. In the CCAC’s view, the plain and ordinary meaning of the term “in-law” was restricted to legal marriages of family members.
Furthermore, the CCAC argued that the parties had turned their minds to the issue of common law relationships and decided to extend the definition of spouse to include common law relationships only for the spouse of the employee. As support for this proposition, the CCAC noted that the term “spouse” was defined and deemed to include common law relationships only in the provision respecting leave for the death of the employee’s spouse; the term was not defined in the other provisions.
ONA argued that the only definition of “spouse” anywhere in the collective agreement was the definition contained in the bereavement leave provision respecting the death of a spouse and that definition should govern the use of the word “spouse” throughout the collective agreement. In any event, ONA argued that the provision granting paid bereavement leave for sons-in-law should be given a large and liberal construction, i.e. “son-in-law” naturally includes both legally married and common law spouses of children regardless of the definition of spouse in the other provision. ONA also relied upon the Ontario Human Rights Code.
The arbitrator sided with ONA and ordered the CCAC to reimburse the employee for her lost bereavement pay. It is noteworthy that the arbitrator recognized that the definition of “spouse” in our society has undergone a transformation in our recent past and that while the definition may not have included common law partners when the collective agreement provisions were first drafted, the expanded definition of “spouse” was in full force the last time the collective agreement was negotiated. The arbitrator held as follows:
In Ontario, in the second decade of this millennium, the plain and ordinary meaning of “son-in-law” is the male spouse of one’s child. The male spouse of the child of an employee is her son-in-law whether he is her child’s spouse according to common law or statute law. This may not have been the common understanding when this clause was first introduced into the collective agreement but it has become the common understanding and that is the context in which the collective agreement was last negotiated.
The decision in this case is not surprising. It clearly demonstrates that the interpretation of collective agreements is subject to changing societal norms, especially those touching on the modern family. This decision will likely be relied upon in other grievances where an entitlement under a collective agreement is contingent upon a relationship of marriage.
