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HomeMy WebLinkAboutVan Woudenberg 21-01-16IN THE MATTER OF AN ARBITRATION B E T W E E N ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union” or “OPSEU”) AND SHERIDAN COLLEGE (the “College”) Grievance of Dr. van Woudenberg Termination grievance filed on March 4, 2017 2016-02444-0023 Arbitrator Jules B. Bloch Appearances: OPSEU: Chris Bryden, Counsel, Manprit Singh, Counsel Alexander Zamfir, OPSEU Grievance Officer Dr. Maximiliaan van Woudenberg, Grievor SHERIDAN COLLEGE Daniel J. Michaluk, Counsel, Brianne Taylor, Counsel, Deborah Metrakos, Director Employment Relations and Talent Acquisition, Gurleen Lamsar, Employment Relations. This motion was heard by video conference on January 14, 2021. 2 IN THE MATTER OF AN ARBITRATION B E T W E E N ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union” or “OPSEU”) AND SHERIDAN COLLEGE (the “College”) Grievance of Dr. van Woudenberg Termination grievance filed on March 4, 2017 2016-02444-0023 1. This motion is brought by OPSEU requesting that I quash three summonses to witnesses I signed, compelling the attendance of Dr. Black as custodian of certain of Dr. van woudenberg’s medical records; Ms. Burgess a Counsellor who created the record held by Dr. Black as custodian; and Dr. Green to attend and give evidence before this Board of Arbitration. Second, OPSEU is requesting that I find that the evidence of Gurleen Lamsar, about testimony that was proffered by Dr. van Woudenberg before Arbitrator Leighton in a previous arbitration, be found to be inadmissible before me. 2. The College discharged the Grievor, Dr. van Woudenberg, on February 28, 2017 because, “since October 2013, he has engaged in a course of conduct directed towards management that has been harassing, insolent and insubordinate”. 3. The medical evidence that the College wishes to put before this Board of Arbitration is necessary to prove its pleading at paragraph 29 of its pleading which states: Similarly, the College relies on consideration the Grievor gave to quitting the College in the Summer 2014 as evidence that, today, a “fresh start” is best for all. In June, the Grievor told Ms. Burgess, his counsellor, that he was considering the option of changing careers. In response, Ms. Burgess recommended he read the job hunting and career change book “What Colour is Your Parachute.” And right around the time the Grievor re-emerged from his silence in early September, the Grievor also had a conversation with his psychiatrist, Dr. Green, about whether the College was the right organization to work for. 4. Ms Lamsar’s evidence about what the grievor said in open hearing before the Leighton Board of Arbitration is necessary to prove the Employer’s pleading which is found at paragraph 4 and 5 which is reproduced below: 3 In any event, you should not order reinstatement. Since 2013, The Grievor has filed 16 complaints, grievances and human rights tribunal applications alleging wrongs perpetrated by the College and nine members of management (see Appendix A). His dealings with the College and his testimony reveal a deep distrust and disrespect for the College and its management, an inability to agree or cooperate on the simplest of matters and no interest in restoring a relationship that functions normally. In a hearing just several weeks ago, the Grievor declared: If I could go back would I do things differently? I would pay attention to my health issues, not work in a union, take a job at a better institution, not Sheridan… I would change a lot. This is not a pleasant experience. The Grievor’s animosity runs too deep. The employment relationship is clearly ruptured beyond repair. 5. The College asserts that Ms. Lamsar’s evidence is necessary and forms the underpinning of the College’s evidence about the inappropriateness of the remedy of reinstatement in this case. Notably the evidence does not relate to the issue of just cause. 6. The Union raises three arguments in its request that I quash the summons to witness and not admit into evidence the medical records held by Dr. Black and Dr. Green and the testimony of Dr. Green and Ms Burgess. These three arguments are found below. 7. First, OPSEU relies on the consent order, the body of which is reproduced below and posits that this Board of Arbitration is bound by the Leighton Board’s consent order: At the earliest opportunity, the Grievor, Dr. Maximiliaan van Woudenberg, shall obtain his medical files in their entirety for the period of 15 December 2013 to 20 February 2015 from the following health professionals: Dr. Black Dr. Green Dr. Murphy Ms Burgess Once obtained, Dr. van Woudenberg shall sign any necessary medical release forms, and provide the files to his OPSEU representative, Ms. Avril Dymond, and counsel for Sheridan College, Mr. Daniel Michaluk, as soon as possible before the hearing date of 29 March 2016. These medical files are to be used for the purposes of arbitration only, and copies may not be distributed to other members of the Union or Management. 8. Second, that the probative value of the evidence does not outweigh Dr. van Woudenberg’s right to privacy. 9. Third, the Summons to Witness is overly broad in its current form. 10. In the alternative, if I grant the production of the documents pursuant to these summonses to witness, I must issue direction on strict restriction and conditions about their use. 4 11. The Union in support of its position relies on the following cases: 1.West Park Hospital (1993), 37 L.A.C. (4th) 160 (Knopf, Ch.). 2. Oliver Paipoonge (Municipality) (1999), 79 L.A.C. (4th) 241 (Whitaker). 3. Niagara College, 2019 CarswellOnt 19999 (Stout). 4. Clarke Institute of Psychiatry (1995), 45 L.A.C. (4th) 284 (Knopf, Ch.). 5. Heritage Nursing Home Ltd. (1978), 18 L.A.C. (2d) 243 (Abbott, Ch.). 6. Canada Post Corp. (1992), 24 L.A.C. (4th) 436 (Shime). 7. Sunnybrook Hospital (1987), 32 L.A.C. (3d) 381 (Brown, Ch.). 12. The Union’s first argument cannot succeed as no Arbitrator can circumscribe the jurisdiction of another Arbitrator. Arbitrator Leighton is creating restrictions around the medical records that are being proffered before her panel. Consequently, any restrictions or limitations she has directed are limited to her jurisdiction and cannot affect my jurisdiction in any way to accept evidence necessary to prosecute the case before me. 13. The Union’s second argument also fails because to prohibit this evidence from being proffered would stop the College from proving its case about the inappropriateness of the remedy of reinstatement. 14. I find that the medical records and the evidence necessary to prove and explain the medical records are essential to the College in proving its pleading. As with the Leighton panel, I will also create restrictions and protections about what the parties appearing before me can do with the medical records. 15. Finally, the summons to witness relates to a very narrow temporal request which I find appropriate in the circumstance because these summons to witness are not overly broad. 16. I adopt the restrictions and limitations as found in the consent order above at paragraph 7. I note that all limitations and restrictions apply to the parties before me but do not bind any other adjudicator who may have reason to require that these medical records be entered into evidence in another proceeding. 17. Further, the Union objects to the evidence of Ms Lamsar being proffered before me as it relates to evidence that Dr. van Woudenberg testified to before the Leighton panel. Ms Lamsar had taken notes of that testimony and the College wishes to enter the notes into evidence. 18. The Board of Arbitration Chaired by Arbitrator Leighton never opined on the evidence the College is seeking to have entered in evidence before me. OPESU posits that Ms Lamsar’s notes do not form a record and therefore cannot be adduced into evidence for the truth of the matter asserted. 19. I agree with OPESU that Ms Lamsar’s notes are not a transcript and do not represent the record of the evidence at arbitration. Even the Arbitrators notes are not compellable because they are not a record of the proceeding. The only record of the proceeding is the decision and the evidentiary findings within the decision. 20. Ms Lamsar’s evidence about what she saw and heard at the arbitration is evidence that can be adduced before me. The notes taken by Ms Lamsar, once counsel takes her through the evidentiary rules, may be used as an aide memoire (present memory refreshed or past memory recollected) should such notes be needed in aid of her testimony before me. The notes under the 5 right circumstances may be entered into evidence as an aide memoire and do not form evidence on their own. 21. We have not reached the point in the proceeding where I have to make evidentiary rulings about the notes. These rulings will depend on how Ms Lamsar’s evidence takes shape and the necessity of an aide memoire. 22. In light of the above, I will not comment on the College’s arguments regarding OPSEU’s abuse of process or OPSEU’s alleged failure to make its position on the evidence in question known in a reasonable amount of time. 23. To conclude, the notes in Dr. Black’s possession may be entered into evidence and commented upon by Ms. Burgess who is the author of the notes. Second, Dr. Green’s notes and testimony is admissible before me. Finally, Ms Lamsar may testify about what she heard Dr. van Woudenberg say before the Leighton panel. I will release the notes I have in escrow in a separate e mail which will include the password. 24. This matter is to continue on January 18, 2021 via Zoom @ 11:00 am EST. 25. I am seized of the application, interpretation and implementation of this direction. Dated in Victoria this 16th Day of January 2021. ————— Jules B. Bloch Arbitrator