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HomeMy WebLinkAbout1995-2289.Giddings.98-06-01;~L;dS;E L4 CouRoNNE COMMISSION DE RliGLEMENT DES GRIEFS 180 DUNDAS S7REfl WES7; SUITE SOa, TORONTO ON MSG 128 TELEPHONEllkiPHONE : (416) 326-1388 1 &I, RUE DUNDAS OUES 7; BLJR.54 U 600, TORONTO (01’9 MSG I.78 FACSIMILEIT~LiCOPIE : (416) 326-1396 GSB#2289/95 OLB#O 14/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGATNTNG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Giddings) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE W. Kaplan Vice-Chair FOR THE Julia Noble UNION Legal Counsel Ontario Liquor Board Employees Union FOR THE Michael Sherrard EMPLOYER Counsel, Ogilvy Renault Barristers & Solicitors FOR GREAT Graham Nattress WEST LIFE Legal Counsel, Great West Life HEARING May 19, 1998 , ,’ 2 Introduction Several years ago, Mr. John Giddings, a Stationary Engineer employed by the LCBO, was denied LTlP. In order to prepare for that case, the union sought disclosure of the grievor’s LTIP file. That matter came before the Board in a hearing held in Toronto on July 25,1996. After considering the submissions of the parties, and counsel for the insurer, Great West Life, I concluded, applying the “arguably relevant” test, that the entire file should be disclosed. In my reasons for decision, I subjected that release to conditions consistent with those of Rule 30.1 and directed that “union counsel...preserve the security of that file and...only disclose the contents of it to the grievor to the extent necessary to obtain instructions from him.” ln the aftermath of that decision, and in the context of a similar set of circumstances but in an entirely unrelated case, the scope of my earlier award was brought into issue. Accordingly, and at the request of the parties, and Great West Life, a hearing was convened in Toronto. Submissions of the Parties In brief, the union took the position that it needed to share documents found in the insurer’s files, documents such as functional abilities evaluations, doctor’s and surveillance reports, and other related materials, with the grievor’s own doctor in order to understand the basis upon which LTIl? had been denied. As union counsel pointed out, she was not a doctor and needed help to understand the documentation in the insurer’s file - to decide, for example, whether to proceed with the case or to challenge the decision being made - and that meant contacting the grievor’s physician and showing him or her all or parts of the file. Making use of the documents in this way, and solely for the purpose of a proceeding before this Board, was not only necessary but, the union argued, fully consistent with Rule 30.1 and my earlier award. In the employer’s submission, however, the earlier award was clear and should not be given an expanded meaning. Referring to that award, employer counsel pointed out 3 that access was limited to union counsel for the purpose of obtaining instructions from the grievor. Any additional access, such as for the purpose of having the documents reviewed by one of the grievor’s physicians should, in management’s view, be made the subject of discussion between the parties, failing which the parties should go before a panel of the Board for additional directions. The award was not, employer counsel argued, capable of an expanded interpretation and the employer asked me to make a declaration to that effect. For its part, counsel for the insurer took the position that it simply required clarification of the earlier award. Decision Having carefully considered the submissions of the parties, and having carefully reviewed my earlier award, I am of the view that it is entirely appropriate for union counsel, as part of obtaining instructions from the grievor, to share documents found in the file with one or more of the grievor’s physicians in order to satisfactorily inform herself of the case. As union counsel pointed out, she is not a doctor and obviously requires expert assistance in order to fully understand the basis upon which a claim was denied. There may be situations where this process will lead the union not to pursue a grievance; there may other situations where the information found in the file - and it should be noted that in the earlier award I directed that the entire file be disclosed - will result in the union pursuing a claim. As part of the process of obtaining instructions from her client, union counsel will inevitably speak with the grievor’s doctor. Limiting disclosure of relevant documents to counsel for the purposes of discussing them solely with the grievor would, in most situations, be of little or no use. The Giddings case, where the grievor was apparently suffering from a mental illness, simply serves to buttress this point. Getting instructions from a client must necessarily include obtaining appropriate expert advice. 4 Accordingly, and for the foregoing reasons, it is my view that the earlier award must be applied in a way that makes practical and legal sense. The union and its lawyer must be able, as part of the process of obtaining instructions from the grievor for the purpose of proceedings before this Board, share documents found in the insurer’s file with the grievor’s physician or other retained specialists after having, of course, explained that the documents had been disclosed solely for the purposes of a proceeding before this Board. There is no need, in the circumstances just outlined, to seek the consent of the insurer or anyone else before doing so. Dated at Toronto this 1” day of June 1998. William Kaplan Vice-Chairperson