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Home My WebLink About2016-1915.Grievor.19-02-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2016-1915 UNION# 2016-5112-0131 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Diane Gee Arbitrator FOR THE UNION Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING May 14 and December 18, 2018 -2- DECISION [1] This matter is grievance in which it is alleged that the Employer failed to accommodate the grievor from June 2015 to April 2016. The parties have agreed that the grievor’s name will not appear in decisions issued in this matter. [2] This decision concerns three preliminary matters. A. The Production of Medical Documents [3] The parties were able to agree on many of the conditions sought by the Union on the use and disclosure of the grievor’s medical documents with the exception of those conditions considered herein. The Union asks that counsel for the Employer be provided with the medical documents on the condition that they will be shared with one instructing advisor only and, should the Employer wish to disclose them to any additional persons, such as a medical expert, the Employer would be required to obtain, either the consent of the grievor, or an order from the Board. In addition, the Union requests an order sealing any medical documents entered into evidence. [4] The Union argues that the individual, societal and institutional interests in preserving the confidentiality of personal and sensitive medical information have been recognized in the arbitral jurisprudence (see: OPSEU v. Ontario (Treasury Board Secretariat) 2017 CanLII 52709 (ON GSB) (Dissanayake)). In the course of deciding whether to exercise their discretion to impose restrictions or limitations on who can see medical documents, and the use to which they can be put, arbitrators balance the grievor’s privacy interest with policy considerations such as the Employer’s right to know the case it has to meet and prepare for litigation (see: Stelco Inc., Hilton Works v. U.S.W.A., Local 1005, 1994 CarswellOnt 1290 at para. 14 and OPSEU v. Ontario (Ontario Clean Water Agency), 2005 CarswellOnt 7881 at para. 12). In some instances the balance has been struck by submitting the documents to the arbitrator who would then provide only relevant excerpts to employer counsel (see: Enbridge Gas Distribution Inc. and Unifor, Local 975, 2015 CarswellOnt 19100). In other instances, the balance has been struck by limiting the number of persons who can review the documents, as is being requested in this case. In many cases between these parties a condition has been imposed that medical documents can be reviewed by employer counsel and only one advisor (Ontario (Ontario Clean Water Agency), supra; OPSEU (O’Brien) v. Ontario (Ministry of Community Safety and Correctional Services) 2011 CanLII 49513 (ON GSB); OPSEU (Culos) v. Ontario (Ministry of Community Safety and Correctional Service) 2012 CanLII 34667 (ON GSB); OPSEU v. Ontario (Ministry of Health and Long-Term Care), November 29, 2018 (Anderson). The Union further requests an order sealing any medical documents entered into evidence in this case as was done in Nicol v. Treasury Board (Service Canada), 2014 PSLREB 3; OFL and COPE, Local 343 (Edwards), 2015 CarswellOnt 16058 and OPSEU and Ontario (Ministry of Health and Long-Term Care) 2017 CanLII 52714 (ON GSB). -3- [5] The Employer agrees I have the power to order the production of medical documents with conditions placed on their disclosure but submits that, initially, it should be permitted to disclose the medical documents to more than one person. It is argued that both Counsel and the ERA need to see the documents in order to provide advise in the course of their respective responsibilities and the documents may need to be shared in order to get an expert medical opinion, prepare witnesses and seek instructions. The Employer argues that limiting disclosure to one person is too restrictive. [6] I am advised that the grievor’s medical documents contain sensitive and highly personal information about the grievor that they do not want disclosed any further than absolutely necessary. The Employer needs to be able to know the case it has to meet and prepare for the hearing; however, the scope of persons it has identified as potentially needing to be advised as to the contents of the medical documents may be broader than is necessary to meet this need. There have been a number of decisions in which disclosure has been restricted to counsel and one advisor and it is my determination that such is appropriate, at this stage, in the instant matter. Should a need arise for counsel to disclose the documents to a potential witness, for the purposes of getting instructions, or in order to get an expert medical opinion, the grievor’s consent can be requested and, if denied, an order can be sought from the Board. [7] Having regard to the parties’ agreements on disclosure and my decision above, I hereby order the grievor’s medical documents provided to counsel for the Employer on the following conditions: i. The documents or material will only be released to Employer counsel for this grievance proceeding and one instructing advisor. ii. The documents or material produced must be maintained as confidential. iii. The documents or material produced must not be disclosed to any person or party not a participant in these proceedings. iv. The documents or material produced can only be used for purposes relating to this proceeding and not for any other purpose or proceeding. v. Documents or material produced shall only be photocopied for purposes relating to this proceeding. B. Provision of Particulars [8] The Union asks for an Order that the Employer provide particulars and relies on Ontario Clean Water Agency, supra, in support. The Employer objects on the basis that it is not the way these parties or the Board routinely operate; the parties do not have a practice of requiring particulars from the party that does not bear the -4- onus. The Employer suggested that the Union’s request is akin to the Employer seeking particulars from the Union in a termination case, which is not done. [9] Unlike a termination case, in a case where there is an allegation of a failure to accommodate, there is a shifting onus. The individual who alleges a failure to accommodate is required to establish a prima face case of discrimination (they have a disability; they were adversely impacted in their employment; and the disability was a factor in the adverse impact). Once the individual has established a prima facie case of discrimination, the onus shifts to the employer to provide a non-discriminatory explanation or justification for the conduct in question. See, for example, Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) and Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII) at para. 52. [10] In this case, the Employer does not contest that the grievor has a disability; was adversely impacted in their employment; and the disability was a factor in the adverse impact. The proceedings are now at the stage where the Employer has the onus of providing an explanation for its conduct. Particulars serve many purposes from improving the chances of settlement to ensuring the hearing can be conducted efficiently. The party that bears the onus is routinely directed to provide particulars. It is my determination that, having regard to the stage of this proceeding, it is appropriate to direct the Employer to provide the Union with particulars of all steps it took to accommodate the grievor following a request in May 2015. C. Production of a Memorandum of Settlement [11] Finally, the grievor entered into a settlement of a claim for LTIP benefits that were denied following a six month short time sick leave that commenced in or about November 2013. The settlement was reduced to writing in a Memorandum of Settlement that contains a provision that the terms of the MOS be kept confidential. Having regard to the arguable relevance of the terms of the Minutes of Settlement, I hereby confirm my oral order that the Union provide a copy of the Memorandum of Settlement to the Employer. Dated at Toronto, Ontario this 5th day of February, 2019. “Diane Gee” ______________________ Diane Gee, Arbitrator