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HomeMy WebLinkAbout1995-2289.Giddings.96-08-01I ONnwo CROWN EMPLOYEES GRIEVANCE mm BOARD SETTLEMENT t-dPL&tKg LA COWWNNE COMMISSION DE RliGLEMENT DES GRIEFS 180 DUNDAS STREET WESS; SUlTE 2700, TORONTO ON M5G lZ8 180, RUE DUNDAS OUES’I; BUREAU 2100. TORONTO (ON) A&G lZ8 TELEPHONE/7&iPHONE : (416) 326- 7388 FACSIMILEJT~LiCOPIE : (416) 326-1396 GSB # 2289/95 . . OLBEU # OLB014/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE: FOR THE GRIEVOR FOR THE M. Gage EMPLOYER Counsel Liquor Control Board of Ontario HEARING OLBEU (Giddings) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor W. Kaplan Employer Vice-Chairperson J. Noble Legal Counsel Ontario Liquor Boards Employees' Union July 25, 1996 INTERIM AWARD Introduction This case concerns the January 261996 grievance of Mr. John Giddings, a Stationary Engineer employed by the LCBO (hereafter “the employer”) since October 1992. The case proceeded to a hearing in Toronto at which time the parties asked me to deal with a preliminary issue in dispute. That issue can be readily summarized. The grievance concerns a denial of LTIP. The collective agreement provides for a LTIP plan setting out in Article 20.5 that LTIP will become payable if an employee becomes totally disabled. The collective agreement also contains a definition of total disability. The grievor is apparently suffering from mental illness, and he applied, but was denied, on December 28, 1995, the benefits of this provision. In order to prepare for the case, union counsel, as is customary in proceedings of this kind, served Great-West Life (hereafter “the insurer”) with a subpoena duces tecum. This subpoena sought “all documents relating to the disability benefits claim of John Giddings.” Counsel for the union and the insurer then engaged in some - correspondence. It is fair to say that what the union seeks is a copy of the grievor’s claims file containing medical records, correspondence and internally generated documentation. For its part, the insurer took the position, which it set out in a July 16, 1996 letter to union counsel, that other than the medical records already disclosed, and other medical records which it was willing to disclose, the remaining documents in the grievor’s file were internal in nature and not 3 relevant to the decision to be made by the GSB. When the case proceeded to a hearing, this preliminary matter was addressed. The employer did not take a position in the matter, while the union, citing the Board’s awards in Hvland 1062/89 (Ratushny) and Basso 2250/90 (Kaplan), as well as a number of other arbitral and legal authorities, argued the materials in question, namely, the contents of the grievor’s file, were “arguably relevant” and thus met the Board’s test and should be released. On behalf of the insurer, Mr. Nattress candidly admitted that the documents were not privileged and would, in a civil action, be released as part of the discovery process. However, the insurer was of the view that while the medical records per se were relevant, the administrative documents which led to the decision not to grant LTIP were unnecessary and should not, therefore, be released. Put another way, counsel argued that the medical records were what was relevant, and counsel stated that the insurer would continue to make available any new medical records which it received such as a forthcoming medical report which counsel stated was part of the claims process, but argued that the underlying administrative records which led to the denial of LTIP were not necessary for the Board to determine the case. What Great-West Life thought about the merits of the grievor’s LTIP application had nothing to do, counsel observed, with the issue that had to be determined by the Board. And that being so, counsel took the position that none of these other non-medical records should be disclosed. Exacerbating the situation from the insurer’s point of view is the fact that a civil action has been commenced on the grievor’s behalf, 4 although at this time only a demand letter has been sent. It did not make sense, nor would it be fair, counsel argued, for the file to be released without any restrictions. For her part, union counsel indicated that she would bewilling to accept restrictions consistent with Rule 30.1 of the Rules of Civil Procedure. Decision In my view, this case is an appropriate one to direct disclosure of the entire Great-West Life file containing medical reports, correspondence and internal documentation relating to the grievor’s LTIP claim. Counsel for the insurer conceded that there was nothing privileged in the file, and its contents are “arguably relevant” to the disposition of the issue before me and so this request meets the Board’s test. The file contains the information upon which the decision denying LTIP was based. It is that very decision which is the subject of this case. There is no element of a fishing expedition in this matter, and the case for directing disclosure is strengthened by the fact that the grievor is suffering from a mental illness and may not, therefore, be in a position to fully instruct counsel. It should also be pointed out that a very specific document has been identified, namely, the grievor’s file. Needless to say, whether the contents of that file are ultimately admissible is another matter. However, having ordered the release of these documents pursuant to the subpoena duces tecum, I find that this is an appropriate case to subject that release to conditions consistent with those of Rule 30.1. This case is a grievance proceeding to the GSB pursuant to the Crown Emolovees . . Collective Bargiunrng Act. This is not a civil case, and such a case would 5 not, in any event, involve these parties. However, while the union is entitled to a copy of the grievor’s Great-West Life file, no one else is and I direct union counsel to preserve the security of that file and to only disclose the contents of it to the grievor to the extent necessary to obtain instructions from him. Put another way, the file is not to be released, or the contents of it to be made known, to the counsel hired by the grievor to pursue his civil claim. The file is to be used solely for the purposes of this proceeding, and any proceeding arising out of it. Accordingly, and for the foregoing reasons, the insurer is directed to disclose forthwith, and certainly within no more than thirty days of the date of this award, all of its records and documentation relating to the grievor and his LTIP claim. Moreover, the insurer is further directed, as it continues to go about evaluating the grievor’s claim, to disclose any further documents it creates or obtains in that process. However, should the insurer take the position that any such further documents are privileged, it may withhold such documents and seek a ruling from the Board. This case can be scheduled on its merits upon application by either of the parties. I remain seized with respect to this matter. DATED at Toronto this 1 St day of August 9 1996 - A- William Kaplan Vice-Chairperson