HomeMy WebLinkAbout2012-3928.Sparkes.19-04-24 Decision
Crown Employees Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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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
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Sparkes) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Gail Misra Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Debra Kyle
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 15, 2019
- 2 -
Interim Decision
[1] The seventeen grievances filed by the Union on behalf of Constance Sparkes
have been referred to the Board for arbitration. These matters have now been
scheduled for three days of hearing, but litigation has not commenced.
[2] The Employer has requested authorization for its advisor and instructor to review
the Grievor’s medical file, which has been produced, with redactions, to counsel
for the Employer. On behalf of the Grievor, counsel for the Union objected to the
disclosure of the medical file to the two individuals the Employer named as
needing to work with its counsel in preparation for this case, Ms. Laura
McCready and Ms. Rhonda Franks. Union counsel argued that the file contains
sensitive medical information which should not be reviewed by anyone other than
Employer counsel. Should I find otherwise, the Union urges that the medical
information be treated carefully.
[3] Some of the grievances raise issues that will require the Grievor and Union to
rely on Ms. Sparkes’ medical file. As such, it would be impossible for Employer
counsel to properly prepare for the litigation of these grievances without access
to the medical file. It is also insufficient for Employer counsel to have access
without the ability to seek guidance from her advisor and instructor regarding
both facts that the Union will rely upon and the alleged impact on the Grievor’s
health that the Union will be claiming.
[4] As such, pursuant to the authority of s. 48(12)(b) of the Labour Relations Act,
1995, S.O. 1995, c. 1, Sch. A, I hereby order the Union and the Grievor to
forthwith produce to counsel for the Employer all arguably relevant medical
records for Ms. Sparkes subject to the following conditions:
1. Counsel for the Employer, her advisor and her instructor, Ms. Laura
McCready and Ms. Rhonda Franks, are permitted to access and use
the medical records solely for the purposes of this hearing, and
subject to the following conditions:
(a) Any person permitted to access and use these documents will
keep them strictly confidential except for documents entered
as exhibits in the hearing and subject to any further orders in
that regard; and,
(b) To the extent that those identified above are provided with
copies of these documents, upon completion of this case, all
physical documents will be returned to the Union's counsel or
destroyed.
2. Counsel may make copies of the medical record, or any portion of
the medical record, in order to submit the document(s) into evidence.
- 3 -
3. Any documents produced pursuant to this order and not submitted
into evidence shall be returned to Union counsel, or destroyed, at the
conclusion of these proceedings.
[5] I note that the Employer has retained the right to make arguments regarding the
redactions made to the medical records. If the Employer objects to the
redactions, and needs this issue resolved by the Board, such a motion must be
made well in advance of the next hearing day so that this matter can proceed as
scheduled.
[6] The Employer also seeks to have some of the Grievor’s particulars struck before
the commencement of the hearing. Having regard to the parties agreement, I
now direct the following exchange of submissions:
- The Employer’s submissions are to be filed with the Board and copied to
counsel for the Union by June 28, 2019;
- The Union’s response submissions are to be filed with the Board and copied
to counsel for the Employer by September 13, 2019;
- The Employer’s reply submissions are to be filed with the Board and copied
to counsel for the Union by October 18, 2019; and,
- The Union’s sur-reply submissions, if any, are to be filed with the Board and
copied to counsel for the Employer by November 8, 2019;
[7] I remain seized.
Dated at Toronto, Ontario this 24th day of April, 2019.
“Gail Misra”
Gail Misra, Arbitrator