The URL can be used to link to this page

Home My WebLink About2016-2754.Horning.20-02-10 Decision Crown 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# 2016-2754 UNION# 2016-0411-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Horning) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING November 28, 2019 - 2 - Decision [1] The grievance before me filed on behalf of Mr. P. Horning is dated November 21, 2016. The grievance alleges that the Employer discriminated against Mr. Horning in relation to his request for workplace accommodation. Mr. Horning and the Union intend to rely on medical reports from two medical professionals to support their position that Mr. Horning’s request for accommodation was reasonable and should have been granted by the Employer in a timely fashion. The Employer seeks an order directing Mr. Horning and the Union to provide it with the clinical notes from the medical files of the two medical professionals. The Union opposed the Employer’s request. This decision deals with the Employer’s request for the disclosure of clinical notes relating to Mr. Horning as well as some other issues raised by the Union during its submissions on the Employer’s motion. [2] Mr. Horning is a Correctional Officer (“CO”) who moved to the Ottawa Carleton Detention Centre (“OCDC”) in 2004. He was on short term sick leave starting on October 23, 2013, and he was approved for long term income protection (“LTIP”) on April 24, 2014. As of January of 2016, Mr. Horning began to discuss a return to work with his psychologist. A return to work plan was developed with Manulife that would have returned Mr. Horning to work with the Ministry as of September 12, 2016. The return to work plan consisted of some restrictions, the main one being that Mr. Horning not return to OCDC. Mr. Horning’s psychologist recommended that he return to work at the St. Lawrence Valley Correctional and Treatment Centre (“SLVC”). Mr. Horning’s LTIP benefits ended as of November 11, 2016. Mr. Horning eventually secured a position as a CO at the SLVC, but this did not occur until at least two years after the return to work date selected by his psychologist. The essence of Mr. Horning’s complaint is that the Employer had failed in its duty to properly accommodate him in light of his restrictions from September of 2016 until his assignment to SLVC. [3] In support of their positions on the merits of the grievance, the Union and Mr. Horning intend to rely on medical reports prepared by Dr. G. Kambites, Mr. Horning’s family physician, and Dr. H. Searles, a Registered Psychologist. The Union may also - 3 - call these medical professionals as witnesses. It is with respect to these reports that the Employer requested disclosure of the complete medical files, or in other words, the clinical notes. I note that Mr. Horning also had an independent medical examination (“IME”) by Dr. W Quan, a Psychiatrist. [4] Given the nature of the issues before me, I find it unnecessary to review the submissions from counsel and the decisions I was referred to in any detail. The Union took the position that the clinical notes requested by the Employer were not relevant to the key issues in dispute. In the alternative, the Union objected to the scope of the Employer’s request. It argued that there should be a narrow time period and a focus only on the relevant information. Union counsel submitted that strict conditions should be attached to any direction I might make to protect the confidentiality of the highly sensitive medical information relating to Mr. Horning. Counsel also suggested that the Employer should be responsible for the cost of photocopying the extensive medical file that Dr. Searles has for Mr. Horning. The Union also raised the issue of not using Mr. Horning’s name in decisions. [5] Union counsel referred me to the following decisions: OPSEU (Jones) and Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 42778 (ON GSB) (Tims); Re College of New Caledonia and Faculty Assn. of the College of New Caledonia (2019), 301 L.A.C. (4th) 189 (Saunders); OPSEU (Hyland) and Ontario (Ministry of Children and Youth Services), 2006 CanLII 17669 (ON GSB) (Petryshen); and, OPSEU (Grievor) and Ontario (Ministry of Community Safety and Correctional Services), 2019 CanLII 21793 (ON GSB) (Gee). [6] On the matter of relevance, the Employer simply took the position that it should not have to accept the medical reports at face value and that the clinical notes were relevant for the purpose of illustrating how the medical professionals arrived at their opinions. Employer counsel argued that the Employer’s request was not overly broad in the circumstances. The Employer recognized that an order to disclose the clinical notes would be subject to reasonable conditions to protect the confidentiality of the sensitive information contained therein. Employer counsel argued that any costs - 4 - associated with the disclosure of arguably relevant documents should be borne by the party required to produce the documents. The Employer did not agree with the Union’s request that Mr. Horning’s name should not be used in decisions. [7] In support of the motion, Employer counsel referred me to the following decisions: Re Dufferin Concrete and Teamsters Local 230 (2015), 264 L.A.C. (4th) 1 (Luborsky); OPSEU (Davis) and Ontario (Ministry of Citizenship and Immigration, 2017 CarswellOnt 18564 (ON GSB) (Harris); AMAPCEO (Szewczyk) and Ontario (Ministry of Environment), 2014 CanLII 8296 (ON GSB) (Herlich); OPSEU (Sparkes) and Ontario (Ministry of Community Safety and Correctional Services), 2019 CarswellOnt 6496 (ON GSB) (Misra); Re Hendrickson Spring Stratford Operations and USWA, Local 8773 (2006), 151 L.A.C. (4th) 245 (Solomatenko); and, Re OPSEU and Ontario Clean Water Agency, 2005 CarswellOnt 7881 (ON GSB) (Abramsky). [8] In my view, the relevant jurisprudence suggests that the Employer’s request is an appropriate one in the circumstances of this case. The following comments by Arbitrator Luborsky in Re Dufferin Concrete at paragraph 32 apply equally to the instant case: …Once the Grievor and/or Union has placed medical notes before the Employer (and ultimately the arbitrator), the Union has opened the door to the proper admission of all of the documents that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor’s medical file arguably related thereto. In this case, the Employer is entitled to receive the relevant clinical notes that support the opinions of Drs. Kambites and Searles as contained in their medical reports. With respect to the relevant time frame, the relevant clinical notes should cover the time from when Mr. Horning started treatment with Drs. Kambites and Searles until he started to work at SLVC. I believe that the issue about who should bear the cost associated with reproducing the clinical notes in Dr. Searles file was resolved by the suggestion that these notes could be retrieved from Dr. Quan since he was provided with her clinical notes as part of the IME process. In any event, I agree with the Employer’s contention that any costs associated with the disclosure of arguably relevant documents should be borne by the Union, the party required to produce the documents. I do not see any - 5 - reason why Mr. Horning’s name should not be used in this decision given that no sensitive medical information is being disclosed. The Union can raise this issue again with respect to subsequent decisions. [9] Therefore, for the above reasons, I hereby direct Mr. Horning and the Union to produce to Employer counsel the relevant clinical notes in the medical files of Drs. Kambites and Searles that relate to Mr. Horning from the time he became a patient until he started work at SLVC. By relevant clinical notes, I refer to the clinical notes that are relevant to the reports of the medical professionals and the accommodation issues that arise from Mr. Horning’s grievance. The disclosure of the clinical notes and any other medical information disclosed to the Employer in this proceeding shall be subject to the following conditions: 1. The medical documents produced in this proceeding must be maintained as confidential and not be disclosed to any person not a participant in this proceeding. 2. The medical documents produced can only be used for purposes of this proceeding and not for any other purpose or proceeding. 3. The medical documentation released to Employer counsel shall not be shared with anyone who is not a key advisor having carriage of the grievance on behalf of the Employer. 4. The medical documents produced shall only be photocopied for purposes relating to this proceeding and any medical documentation produced and in the Employer’s possession shall be returned to Mr. Horning or destroyed at the conclusion of the proceeding. Dated at Toronto, Ontario this 10th day of February, 2020. “Ken Petryshen” Ken Petryshen, Arbitrator