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HomeMy WebLinkAboutS.G. 19-06-10IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act, R.S.O. 1990 c. 15 BETWEEN NIAGARA COLLEGE (the “College”) And ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 242 (the “OPSEU” or the “Union”) GRIEVANCES OF S.G. (GRIEVANCES # 22-2018, 23-2018, 24-2018, 27-2018) SOLE ARBITRATOR: John Stout APPEARANCES: For the Employer: Timothy P. Liznick, Hicks Morley LLP For the Union: Alexander Zamfir, Grievance Officer - OPSEU ISSUE ADDRESSED BY CONFERENCE CALL ON JUNE 7, 2019 2 INTERIM PROCEDURAL AWARD [1] This matter concerns four grievances filed by OPSEU on behalf of S.G. (the “Grievor”). All of the grievances allege that the College violated the Collective Agreement and the Ontario Human Rights Code R.S.O. 1990, c. H.19, by failing to accommodate the Grievor with modified work.1 [2] The College has requested particulars and pre-hearing production of the Grievor’s medical records. [3] The Union takes the position that particulars are unnecessary as the College has physician’s notes that indicate that the Grievor can be returned to modified work. The Union does not object to producing the additional medical records sought by the College, but they seek an undertaking or an order to protect the confidential nature of the medical records being produced. [4] The Union also requests particulars from the College as to why they have not returned the Grievor to work in an accommodated position. [5] A conference call was convened on June 7, 2019, in advance of the scheduled June 10, 2019 hearing. I was provided with brief written submissions (emails) that also attached caselaw and copies of relevant documents. [6] After hearing submissions, it became apparent that proceeding with the hearing on June 10, 2019 would not be a productive use of resources. Therefore, it was agreed that the matter would be adjourned. I also advised the parties that I would review the caselaw and issue a brief interim award addressing the preliminary issues. 1 The issues raised by the grievance concern the medical condition of the Grievor. In these circumstances, I have decided that it is prudent to anonymize the Grievor. 3 DECISION [7] After carefully considering the parties’ submissions, I am granting the order for particulars and production of the medical records, subject to limitations and an order protecting the confidentiality of the medical records. My reasons are set out below. [8] There is no dispute that an Ontario arbitrator has the power to make interim orders concerning procedural matters, including but not limited to requiring any party to furnish particulars or produce documents that may be relevant to the matter being heard, see s. 48 (12) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (as amended). In exercising the power to make interim procedural orders, an arbitrator is guided by the general principle that the parties are entitled to an expeditious fair hearing. [9] In terms of the request for particulars, it is well accepted that in litigation parties are entitled to know in advance the case they have to meet, so that they may prepare their evidence and submissions, see Re Stelco Inc. and USWA, Loc. 1005 (1994) 42 L.A.C. (4th) 270 (Dissanyake). In this case, the grievances assert a failure by the College to accommodate the Grievor, although the grievances do not particularize the exact nature of the accommodation being sought. [10] I appreciate that the College has some physician’s notes outlining the Grievor’s medical restrictions. However, the Union has not provided me with any details as to what type of accommodation is being sought. In order for the hearing to proceed in an expeditious and fair manner, I am of the view that the Union must provide the College with particulars of what job or work the Grievor could perform either in totality or with modifications. I direct the Union to provide such particulars within a reasonable time and copy me. [11] I also agree with the Union that the College must also provide particulars of their position that the Grievor is not capable of performing any work, modified or 4 otherwise, and why accommodation cannot be provided in these circumstances. The College is to provide their particulars within a reasonable period of time after the Union has provided their particulars and copy me. [12] Turning to the College’s request for production of the Grievor’s medical records, I am of the view that the Union’s request for an order protecting the confidentiality of the records is appropriate and necessary to safe guard the Grievor’s reasonable expectation of privacy. [13] The College is seeking production of medical records. The Union is not denying the College’s request for production. Rather, OPSEU is merely seeking to protect the Grievor’s privacy interests. [14] OPSEU’s concern about the Grievor’s privacy interest in the medical records is understandable and legitimate. Medical records contain very sensitive personal and private information, which is confidential and not normally disclosed without the consent of the patient, see Carleton University and Carleton University Academic Staff Association, unreported award dated March 29, 2019 (Pamela Cooper Picher). [15] I note that the confidential nature of health information and the privacy interests of patients in their medical records is recognized and protected by specific legislation in the Province of Ontario, see the Personal Health Information Protection Act, 2004 S.O. 2004 c. 3. [16] In order to protect the Grievor’s reasonable expectation of privacy in the medical records, OPSEU seeks an order restricting the use of the medical records, relying on the award of Arbitrator Diane Gee in Ontario Public Service Employees Union and the Crown in right of Ontario (Ministry of Community Safety and Correctional Services) 2019 CanLII 21739. [17] I note that it is not unusual to make orders protecting the confidentiality of certain documents in arbitration proceedings. Confidentiality orders are almost 5 always sought in relation to the production of an employee’s medical records. The terms of medical production orders and their confidential limitations find their genesis in the Supreme Court of Canada’s decision M.(A.) v. Ryan [1997] 1 SCR 157 (“Ryan”). In Ryan, the majority of the Supreme Court of Canada dismissed an appeal of a British Columbia Court of Appeal order requiring the production of certain medical records that was subject to four conditions: • That inspection be confined to Dr. Ryan’s solicitors and expert witnesses and Dr. Ryan could not see them • That any person who saw the documents should not disclose their contents to anyone not entitled to inspect them • That the documents could only be used for the purposes of the litigation • That only one copy could be made by Dr. Ryan’s solicitors, to be passed on as necessary to Dr. Ryan’s expert witnesses. [18] The majority of the Supreme Court of Canada found that the production order granted by the British Columbia Court of Appeal, subject to “stringent conditions”, was appropriate and not made in error. [19] In this case, the College seeks less restrictions than those requested by the Union and found to be appropriate in Ontario Public Service Employees Union and the Crown in right of Ontario (Ministry of Community Safety and Correctional Services), supra. The College advises that they may require an expert to assist them in evaluating the Grievor’s medical condition. Counsel also indicates that the Dean and Associate Dean have been involved in the accommodation process and they may need to review medical records to prepare their evidence and respond to the Union’s case. [20] In my experience, direct supervisors are never granted access to medical records. In normal circumstances, an employer’s occupational health or third-party insurer will review the medical records and make any determination about the legitimacy of the absence and what, if any, accommodation may be required for an employee. The only information disclosed to a direct supervisor would be 6 whether the claim for sick pay was legitimate and what, if any, restrictions were required to accommodate an employee in the workplace. [21] I am not satisfied that counsel needs to discuss the Grievor’s medical records with the Dean and Associate Dean in order to reply to the grievance. Counsel will have the right to discuss the records with one advisor, the College’s occupational health department and a medical expert, if they so choose. In my view, limiting access of the medical records to these individuals will not prejudice the College. Rather, it will put them in the same position as any other employer who is required, by law, to accommodate an employee who suffers from a disability. [22] I acknowledge Arbitrator Picher’s decision in Carleton University and Carleton University Academic Staff Association, supra, where she granted production but also permitted redaction of information and a process for addressing any redactions. Relevant to this matter, Arbitrator Picher also permitted the sharing of medical records with “key advisors”. However, I note that the dispute between the parties in the case before her appears to have been more focused on disclosure generally and the limitations do not appear to have been in dispute. In any event, I am not convinced that the decision somehow creates a precedent that I ought to follow. [23] In my view, crafting restrictions to protect an employee’s reasonable expectation of privacy in their medical records is a matter of discretion and arbitrators are not bound by previous awards. Rather arbitrators ought to consider the specific facts and issue an order that suits the needs of the parties in the matter before them. I am of the opinion, that when balancing the right of an employee to privacy in their medical records and the right of the employer to respond to a grievance, an arbitrator ought to be conservative in who they grant access to such personal and private records. [24] In this case, I am not satisfied that the Dean or Associate Dean need to have access to the medical records. That being said, counsel is free to discuss 7 what, if any, medical information either the Dean or Association Dean have seen prior to the grievances being filed and what, if any, restrictions were indicated by any healthcare professional. If counsel is of the view that they require more latitude, then they may contact me to convene a conference call to address the issue. [25] Therefore, after considering the parties’ submissions, I order that the Union produce the Grievor’s medical records within a reasonable time. The medical records are to remain confidential and are subject to the following confidentiality conditions: a) All medical records are to be kept confidential as among the parties; b) The medical records shall be produced to counsel and they may share the medical records with one advisor and the College’s occupational health department and a third-party external medical consultant, subject to the medical records being kept confidential; c) No copies shall be made of any medical record except for the purpose of the hearing of these grievances; d) No copies of the medical records are to be circulated to third-parties save and except a medical expert retained as necessary for the conduct of the litigation, and once that purpose has been completed, the copies are to be retrieved from the third party medical experts; e) The medical records are to be used only for the purposes of this hearing and for no other or improper purpose. Specifically, the medical records are not to be used in any other proceeding and are not to be shown or provided to any other party or person once the hearing is completed; f) All copies of the medical records are to be returned to the provider of the medical records or destroyed at the conclusion of this proceeding and any judicial review proceedings arising out of this proceeding, save for one copy to be retained by each counsel in her or his file; and g) No personal information contained in any of the medical records, and in particular no medical information found in any document, shall be disclosed to any person except for the purposes of this proceeding, or except as required by law. 8 [26] Either party may apply to me for further orders and directions with respect to the production of the medical records, including seeking amendments to this order, if necessary, to ensure a fair hearing. [27] My office shall schedule dates for this matter to continue. Dated this 10th day of June 2019 in the City of Toronto, Ontario. _________ John Stout, Arbitrator