HomeMy WebLinkAbout2000-1220.Richard.05-06-20 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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Suite 600 Bureau 600 Ontario
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GSB# 2000-1220
UNION# 2000-0154-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Richard) Union
- and -
The Crown In RIght of Ontano
(Ontano Clean Water Agency) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION GavIn Leeb
BarrIster and SOlICItor
FOR THE EMPLOYER Len HatzIs
Counsel
Management Board Secretanat
HEARING June 14 2005
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Award
On the mormng of the second day of heanng In thIS matter a dIspute arose In regard to
the productIOn of documents SpecIfically the Employer seeks the gnevor's decoded OHIP
summary for the penod from January 1 1996 to May 2005 The Umon opposes that request.
Facts
In ItS gnevance and partIculars, the Umon asserts that due to a number of occurrences and
harassment at the workplace between February 1998 and mId-2000 the gnevor expenenced
substantIal stress and anxIety became III and was unable to work. It further alleges that the
gnevor remaInS unable to work. It seeks a number of remedIes IncludIng lost wages, damages
and future loss of earmngs untIl age 65
Dunng opemng statements by counsel for the Umon, and In examInatIOn-In-chIef of the
gnevor dunng the first day of heanng, It became clear that the gnevor has long expenenced
stress and anxIety - IncludIng pamc attacks - whIch substantIally predate the allegatIOns agaInst
the Employer
The Employer then requested the gnevor's decoded OHIP summary from January 1996-
two years before the first alleged occurrence at the workplace - untIl May 2005 the start of the
heanng. The Umon opposed that request, and the partIes' argued theIr respectIve posItIOns
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Position of the Parties
The Employer argues that the gnevor should be reqUIred to produce hIS decoded OHIP
summary from January 1996 to May 2005 It submIts that thIS summary IS "arguably relevant"
to the Issues In thIS case SInce the gnevor's physIcal and mental health, both pnor to and after
1998 has been put Into Issue It argues that It has the nght to explore what medIcal assIstance the
gnevor sought for hIS anxIety and stress from January 1996 forward. DetermInIng the extent of
the gnevor's pre-exIstIng condItIOns, In the Employer's submIssIOn, IS vItal to ItS case and the
determInatIOn of lIabIlIty It contends that the summanes are needed to ensure a complete pIcture
of the gnevor's pre-exIstIng condItIOn. The Employer asserts that ItS request for the two-year
penod before the first allegatIOn IS lImIted and reasonable In all the CIrcumstances
In supports of ItS request, the Employer cItes to the folloWIng cases. Derynck v
Chevalier Estate [2002] OJ No 641 (Ont. Sup Ct. JustIce) Re Toronto Distict School Board
and Canadian Union of Public Employees, Local 4400 (2002) 109 L.AC (4th) 20 (ShIme)
OPSEU (Wilson) and Ministry of Health (1995), GSB No 2855/91 (Gray) OPSEU (Fabro) and
Ministry of Industry Trade & Technology (1992) GSB No 755/89 et al (Roberts)
The Umon opposes the Employer's request. It argues that the request IS premature In that
the Employer has made no attempt yet to access the clImcal records of the gnevor's doctors,
whIch mIght provIde the InformatIOn sought. The Umon acknowledges that the gnevor's mental
health IS at Issue and accepts that, as a result, the Employer IS entItled to probe the eXIstence of
pre-exIstIng condItIOns, but It asserts that It may do so by seekIng the records of the medIcal
practItIOners IdentIfied by the gnevor - not by havIng blanket access to the gnevor's OHIP
summary It further argues that the request IS overbroad In that It wIll reveal personal,
confidentIal medIcal InformatIOn wholly unrelated to the gnevor's stress and anxIety The Umon
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argues that an employee who alleges that the Employer's actIOns have physIcally or mentally
harmed hIm should not, as a result, lose all nght to confidentIalIty of hIS medIcal InfOrmatIOn and
hIStOry If so It suggests that the vIctIm would be vIctImIzed tWIce - first by what happened,
then by the release of confidentIal medIcal InformatIOn. The Umon further argues that the
Employer IS on a fishIng expedItIOn. It submIts that a hIgher standard must be met when a party
request medIcal records because of the substantIal pnvacy Issues at stake
In support of ItS posItIOn, the Umon cItes to the folloWIng cases Re Municipality of
Oliver Paipoonge and Labourers International Union of North America, Local 607 (1999), 79
L.AC (4th) 41 (WhItaker) Re Becker Milk Co Ltd and Milk & Bread Drivers, Dairy
Employees Caterers and Allied Employees, Local 647 (1996) 53 L.AC (4th) 420 (Joyce) Re
Share Family and Community Services Society and Health Sciences Association of British
Columbia (2002) 109 L.AC (4th) 289 (Lanyon)
In the alternatIve, the Umon argues that the document should first be revIewed by the
Board to determIne If InformatIOn relevant to any pre-exIstIng condItIOn IS revealed or addItIOnal
doctors dIsclosed, then that InfOrmatIOn may be revealed to counsel for the Employer In
support, the Umon relIes on Re Centre for Addiction and Mental Health and OPSEU (2004) 133
L.AC (4th) 178 (Nairn) where the arbItrator first revIewed copIes of emaIls In order to make her
determInatIOn on dIsclosure
In reply the Employer asserts that relYIng on the names of doctors provIded by the
gnevor IS InSUfficIent. It asserts that dunng hIS testImony on the first day of heanng, the
Employer learned of a new doctor that the gnevor had seen, and that there may be others whom
the gnevor does not remember at thIS tIme It argues that the cases relIed upon by the Umon are
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dIstIngUIshable and that based on the eVIdence and allegatIOns In thIS case, It has a nght to
explore the full extent of the gnevor's pre-exIstIng medIcal Issues
Decision
The cases provIded by the partIes adopt vanous standards In regard to the dIsclosure of
documents In Re Toronto District School Board, supra, ArbItrator ShIme adopted a "lIberal"
approach to dIsclosure, statIng at p 32 that "[a]ll documents whIch are arguably or seemIngly
relevant or have a semblance of relevance must be produced." That case however dId not deal
wIth the Issue of medIcal records In Derynck v Chevalier Estate supra, a cIvIl actIOn, the Court
ordered the plaIntIff to produce a decoded OHIP summary for a penod of two years pnor to the
motor vehIcle accIdent at Issue, sInce the defendant had alleged a pre-exIstIng InJury and "the
plaIntIff has put hIS entIre physIcal and emotIOnal health In Issue" In Re Becker Milk Co Ltd
supra, ArbItrator Joyce ruled that the standard for dIsclosure IS "arguably relevant" but stated
that "a hIgher onus" may be reqUIred for mental heath InformatIOn because that InformatIOn
"nghtly or wrongly may tend to stIgmatIze the IndIVIduals " He ruled that the requestIng party
must "satIsfy the arbItrator as to why thIS InformatIOn IS essentIal" In Re Municipality of Oliver
Paipoonge supra at p 245 the arbItrator held that mental health records and submIssIOn to a
psychIatnc eXamInatIOn may only be "undertaken at the pOInt In tIme when they are In fact
necessary or essentIal for purposes of the adJudIcatIOn of the gnevance "
The document requested here, a decoded OHIP summary IS not a "mental health record"
although It does contaIn personal and confidentIal medIcal InformatIOn. AccordIngly I do not
find that standard of "necessary or essentIal" applIes Instead, I agree wIth the statement In Re
Becker Milk Co Ltd. supra at p 428 regardIng dIsclosure of medIcal records
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In ordenng the dIsclosure of medIcal records, arbItrators must be sensItIve to the
fact that such records may mclude personal and confidentIal mformatIOn. In
exercIsmg the reqUIred dIscretIOn, the mdIvIdual's mterest m the non-dIsclosure
of personal and confidentIal medIcal mformatIOn must be balanced wIth the
polIcy consIderatIOns that suggest that dIsclosure IS useful and necessary
In thIS case I find that the balance favours dIsclosure It IS clear that not only IS the
gnevor's mental and physIcal health at Issue, but causatIOn IS also a very sIgmficant Issue The
Umon alleges that events and harassment at the workplace dIrectly caused the gnevor to become
III and unable to work. Assummg that the gnevor IS unable to work due to stress and anxIety the
questIOn of causatIOn remams Was that sItuatIOn caused by events at the workplace for whIch
the Employer IS arguably lIable, or dId It result, m whole or m part, from a pre-exIstmg
condItIOn, such that the Employer arguably IS not lIable? In these cIrcumstances, the gnevor's
pre-exIstmg medIcal condItIOn IS a relevant subject ofmqUIry as IS the ongomg treatment due to
hIS claim of future lost earmngs, and the GRIP summary wIll assIst IS determmmg what
treatment the gnevor has sought.
I cannot agree wIth the Umon's argument, under the facts of thIS case, that dIsclosure
means that the vIctIm IS bemg vIctImIzed tWIce Nor does It mean, m every case, that a gnevor
who alleges that the employer's mIsconduct caused them to become III must dIsclose theIr whole
medIcal hIStOry Each case depends on ItS facts In thIS case, the gnevor has had a long hIStOry
of stress and anxIety mcludmg pamc attacks It IS thIS fact, and ItS sIgmficance to the
Employer's defense and the Issues m dIspute, that entItles the Employer to explore the gnevor's
medIcal hIStOry through the GRIP summary
In so rulIng, I conclude that the Employer need not rely on the gnevor's recollectIOn of
the physIcIans he saw over the years, or first seek the clImcal notes of the doctors he has named
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There IS no assurance that the gnevor's recollectIOn IS complete, whereas the GHIP summary
would be a relIable mdIcator Although the summary may also mclude medIcal treatments
unrelated to thIS case ( e g a VISIt to a podIatnst) It may also mclude mformatIOn whIch IS
hIghly relevant to the Employer's defense m thIS case
In regard to the Umon's alternatIve argument, I find It unnecessary for thIS Board to first
reVIew the GHIP summary However a number of condItIOns wIll be Imposed to address some
of the pnvacy concerns FIrst, only counsel for the Employer and one advIsor may reVIew the
document. Second, no copIes may be made ThIrd, the document may only be used m
connectIOn wIth the Employer's defense of thIS gnevance and for no other purpose
Conclusion
For all of the reasons set forth above the Employer's request for the gnevor's decoded
GHIP summary from January 1996 to May 2005 IS granted, under the condItIOns outlIned
ImmedIately above
Issued at Toronto thIS 20th day of June, 2005