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Home My WebLink About1995-2289.GIDDINGS98_06_01 ./ ONTARIO EMPLOYES DE LA COURONNE ,- CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACS/MILE/TELECOPIE (416) 326-1396 GSB#2289/95 OLB#O 14/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (GIddmgs) Grievor - and - The Crown m RIght of Ontano (LIquor Control Board of Ontano) Employer BEFORE W Kaplan Vice-ChaIr FOR THE Julia Noble UNION Legal Counsel Ontano LIquor Board Employees Umon FOR THE Michael Sherrard EMPLOYER Counsel, Ogilvy Renault Barnsters & 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 Engmeer employed by the LeBO, was denied L TIP In order to prepare for that case, the umon sought dIsclosure of the grIevor's LTIP file That matter came before the Board m a heanng held In Toronto on July 25, 1996 After consIdermg the submisSIOns of the parties, and counsel for the insurer, Great West Life, I concluded, applymg 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." In the aftermath of that deasIOn, and m the context of a SImIlar set of CIrcumstances i but in an entIrely unrelated case, the scope of my earlIer award was brought mto issue. i Accordingly, and at the request of the parties, and Great West Life, a hearing was convened m Toronto Submissions of the Parties In brief, the umon 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 matenals, WIth the grievor's own doctor In I " r order to understand the baSIS upon which LTIP had been denied. As unIOn counsel I pomted 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 bemg made - and that meant contactmg the grIevor's physicIan t and showing hIm or her all or parts of the file. MakIng use of the documents m thIS way, and solely for the purpose of a proceedmg 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 I gIven an expanded meaning. Referrmg to that award, employer counsel pointed out ! I /' ./' 3 that access was lrmited to union counsel for the purpose of obtammg mstructIons from the gnevor Any addItional access, such as for the purpose of having the documents reviewed by one of the grievor's physIcians should, m management's VIew, be made the subject of dIscussion between the partIes, failmg 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 clanfication 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 appropnate for uruon counsel, as part of obtainmg mstructions from the gnevor, to share documents found m the file With one or more of the grievor's physIcIans m 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 r be disclosed - will result m the union pursumg a clarm. ~ t l As part of the process of obtaIrung mstructIons from her clIent, unIOn counsel will , i v ~, ineVItably speak with the gnevor's doctor Limiting disclosure of relevant documents i , , to counsel for the purposes of dIscussmg them solely with the gnevor would, in most f r r situations, be of little or no use The Glddmgs case, where the grievor was apparently i f suffermg from a mental illness, simply serves to buttress thIS pomt. Gettmg , , t instructions from a clIent must necessanly mclude obtaIrung appropnate expert l advice. f ! , ! " f. ! I i r ~ ! [ ~ 4 Accordmgly, 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 obtammg mstructIons from the gnevor for the purpose of proceedmgs before this Board, share docwnents found m the msurer's file WIth the grievor's physiaan or other retaIned specialists alter havmg, of course, explamed that the docwnents had been disclosed solely for the purposes of a proceeding before thIS Board. There is no need, in the circwnstances Just outlined, to seek the consent of the msurer or anyone else before doing so Dated at Toronto thIS 1"1 day of June 1998 ~I 1--- ~ I WillIam Kaplan V Ice-Chairperson