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HomeMy WebLinkAbout2010-0031.Hussain.12-07-30 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#2010-0031 UNION#2010-0542-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hussain) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Joseph D. Carrier Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Benjamin Parry Ministry of Government Services Labour Practice Group Counsel HEARING July 16, 2012. - 2 - Decision [1] On July 6th, this Board released an Interim Award in this matter confirming my oral ruling of June 25th wherein I declined an adjournment motion by the Union. The written decision at paragraphs 14, 15 and 16 read as follows: “[14] The Doctor’s note was not in any way satisfactory. As Mr. Parry argued, it did not speak to the limitations or restrictions we must assess in order to exercise our discretion in Mr. Hussain’s favour either through adjournment or accommodation. Further, although it identified a time frame, it gave no indication as to what triggered Mr. Hussain’s unidentified symptoms or when and how they might resolve themselves or be resolved. Indeed, there is no indication of any treatment whatsoever. [15] In the circumstances, the adjournment motion is denied pending production of compelling reasons and/or compelling medical evidence confirming the Grievor’s inability to have attended June 25th and, if still pursued, for the requested adjournment going forward. The Union is directed to produce this information, or supporting documentation on or before July 9, 2012. [16] Failure to do so, especially if the Grievor fails to attend at the next scheduled hearing date in July, will have dire consequences for the Grievor’s position before this Board.” [2] The matter reconvened on July 16, 2012 as scheduled at which time: 1. Mr. Hussain did not attend; 2. Ms. Letton for the Union sought an extension of the July 9th time limit set out in my oral ruling of June 25th; 3. In the circumstances, Mr. Parry, for the Employer, sought: (a) an order dismissing Mr. Hussain’s grievance; or alternatively (b) (i) an order confirming that any adjournment be declined and (ii) that the Union be required to proceed with its case notwithstanding the Grievor’s absence. [3] At the July 16th proceedings, Ms. Letton did produce a scribbled response from a physician (Dr. NN) to a letter she had addressed to him/her on June 26, 2012. That was, of course, immediately following my oral ruling of June 25th. In her letter Ms. Letton sought answers to questions she had framed with a view to satisfying the June 25th order. Indeed Ms. - 3 - Letton confirmed that she had Mr. Hussain’s consent to pursue that information directly with his physician. In any event, there was no formal response by the doctor; rather, on June 26th, the doctor had simply scribbled responding notes directly on Ms. Letton’s letter. Regrettably, those answers, such as they were, provided no useful or additional information to that provided in the rejected medical note predating my June 25th order. It did, however, provide a diagnosis which Ms. Letton had specifically excluded from her request and which I will not duplicate here. [4] I have referred above to the responding physician as doctor NN since it was under his/her letterhead that the original June 20th medical note had been issued and, apparently, signed. However, below the signature line were the names of two different physicians, Dr. NN and a second physician who I will refer to as Dr. YP. Ms. Letton advised that, upon receipt of Dr. NN’s scribbled response to her June 26th letter, she sought a more comprehensive response. However, her request was declined on the basis that Dr. YP, who was then on vacation until July 20th, was more directly involved in Mr. Hussain’s ongoing care. Any further information would have to be deferred until his/her return. [5] Mr. Parry, for the Employer, took the position that this new scribbled note ought not to be formally admitted or relied upon in any way for its content. Indeed, he insisted that reliance upon it, if any, be deferred unless and until the physician who authored it was called upon to testify in these proceedings. [6] I agree with Mr. Parry that the physician’s pencilled notes on and in reply to Ms. Letton’s letter of June 26th are not reliable for our purposes. Indeed those notes add little of value to the - 4 - substance of the June 20th note except a diagnosis which was not helpful and which, I have noted, would not be duplicated here. [7] Consequently, I am again in a similar situation to that of June 25th when my original Order was issued except that, on this occasion, Mr. Hussain has failed to fulfil the terms of that earlier Order. In the circumstances, aside from prejudice to the employer by reason of the delay, there are two considerations which are at stake: 1. Notwithstanding that this matter ought to proceed expeditiously, if Mr. Hussain is legitimately unfit to attend and participate, it would not be appropriate to proceed in his absence. 2. On the other hand, there is concern that his failure to comply with my earlier Order represents potential disrespect and/or an abuse of this Board’s process, that is, if Mr. Hussain is not legitimately unfit to attend and participate. The Discussion [8] There continues to be inadequate medical information available to reasonably determine the fitness of Mr. Hussain to have attended and participated and, for that matter, to attend and to participate going forward in these proceedings. I note that the Union was not recalcitrant in seeking further medical information in compliance with my Order of June 25th. That it was not forthcoming appears to have largely been due to the unavailability of the Grievor’s physician(s) or, perhaps, their failure to recognize the importance of their advice. [9] In the circumstances, I am not persuaded that the dismissal of the matter would be an appropriate option at this stage. Furthermore, to require the Union to proceed in the Grievor’s absence when he yet may be legitimately unfit may constitute a denial of natural justice. - 5 - [10] Nonetheless, I am reluctant to adjourn or delay these proceedings further without confirmation that Mr. Hussain has been and continues to be unfit to attend and participate. However, there now appears to be little option but to do so. Following the July 16th hearing date, there remained only three days of scheduled hearings, July 26, 30 and 31. Since we had been advised that Mr. Hussain’s primary physician, Dr. YP, was not scheduled to return from vacation until July 20th, he/she would have been unable to attend and speak to relevant matters whether medical or otherwise at least until that time. Although July 26th might have been a potential target date, I was reluctant to put an unrealistic deadline on production of further medical information and/or the physician him/herself if that deadline could not be reasonably achievable. It was and is my view doubtful that the Union would be or would have been successful in arranging to obtain and produce a more comprehensive and satisfactory medical report prior to a July 26th deadline especially if the physician’s attendance was to be required at the proceedings. Since that was and continues to be a strong possibility in this case, it is doubtful that the Doctor’s attendance could have been achieved for any of our remaining July dates. In anticipation of that dilemma, I have already contacted the Parties and advised them of the cancellation of those July dates. [11] In the meantime, I am not content to have cancelled those dates and delayed these proceedings without consequence. Indeed, notwithstanding Ms. Letton’s unsuccessful efforts following June 26th to obtain further and satisfactory medical information to support the requested adjournment in this case, there was no submission or information that Mr. Hussain himself was medically unable to assist in any way with his physician’s offices to facilitate the production of such information. Surely, Dr. NN who works with Dr. YP in the same clinic, although ostensibly not Mr. Hussain’s primary physician, had access to the Grievor’s medical - 6 - files and could have produced a more satisfactory reply to Ms. Letton’s letter. Almost four weeks passed between June 26th and our next hearing day July 16th without any further production beyond the scribbled reply of Dr. NN. While Ms. Letton herself might have been helpless to obtain anything further, Mr. Hussain, the patient, if not totally disabled, could have made independent and direct efforts to satisfy the Board’s Order. We have no evidence or information that he did so. With great reluctance in these circumstances, I have cancelled the remainder of the July dates. The Order and Conditions [12] I now confirm the cancellation and adjournment of the remaining July dates in this matter subject to the following: 1. The delay in proceedings occasioned here by the Grievor will be considered in the ultimate assessment of damages, if any, in the cause of this matter. 2. The Union/Grievor will produce medical information in substance satisfying my oral ruling of June 25th as confirmed in this Board’s July 6, 2012 Award. 3. Amongst other things the medical evidence will address and support the Grievor’s inability to attend and participate in these proceedings from June 25 up to and including July 31, 2012. 4. The fresh medical information required, if not already made available, will be produced and provided to Employer counsel reasonably promptly following release of this award and at least two (2) weeks prior to September 11, 2012 which is now our next scheduled hearing day. 5. Consideration of the fresh evidence to be produced will be dealt with when these proceedings reconvene. The foregoing constitutes my Order and disposition of this matter. Dated at Toronto this 30th day of July 2012. Joseph D. Carrier, Vice-Chair