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Home My WebLink About2022-11289.Ranganathan.24-08-09 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-11289 UNION# 2022-0551-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ranganathan) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING August 7, 2024 - 2 - Decision [1] This is an interim decision. It records certain agreements between the parties and determines an outstanding production issue. The grievance challenges the Employer’s decision to terminate the Grievor’s employment. The production request [2] By email dated June 4, 2024 Employer counsel sought production of seven categories of documentary materials. Further to discussions between the parties, subsequently reviewed at the hearing, it is hereby confirmed that those materials in the Grievor’s possession relating to items one through six inclusive are to be produced to the Employer by no later than August 30, 2024. (I do not intend to reproduce the detailed description of those items here. The materials relate to the Grievor’s mitigation efforts, personal circumstances and medical records and there is no dispute that this material is arguably relevant to the Issues in dispute in this proceeding.) Medical records [3] Item six includes a broader request for medical records from treating practitioners related to an assertion of depression and/or anxiety and related treatment including prescribed medications. The parties agree that this material is arguably relevant to the issues in dispute. The Grievor confirmed that she will provide any necessary consent for the release of her medical files in relation to these medical concerns. [4] I therefore direct that medical records in the possession of the Grievor’s family practitioner and any medical specialist regarding the Grievor’s medical condition as it relates to the consideration and/or diagnosis of depression and/or anxiety and any accompanying treatment plan, including prescribed medications be produced to the Employer by no later than September 13, 2024. This Order is intended to alleviate the issuing of a summons to attend and produce the relevant medical records. Any questions may be directed to Union counsel. Should any issues arise, counsel is to advise. A copy of this decision is to be provided to the health practitioner(s) from whom the relevant records are sought. The production of electronic notes/calendar entries [5] The Employer sought production of “any notes/calendar entries referencing claims and/or treatments on [the Grievor’s] phone or other electronic device”, arguing that, as the Grievor reported that she had used her phone and/or receipts when submitting electronic claims, such electronic data/records were arguably relevant. The Employer advises that any receipts in the Grievor’s possession have already been requested and produced. - 3 - [6] The Union opposed this request on two grounds. First, it argued that the request is too late and is therefore prejudicial in the extreme. It argued that the request comes two years after the decision to terminate the Grievor’s employment and was not made at the time. There was no notice or opportunity for the Grievor to preserve any electronic files and the evidence would be that access is no longer available. In these circumstances there is prejudice to the Grievor in that it inappropriately gives rise to an opportunity to assert that an adverse inference be drawn against her should these records no longer be available, argued the Union. At best, the request is premature, argued the Union. [7] Second, the Union argued that the requested notes/entries are irrelevant to the Employer’s decision to terminate the Grievor’s employment. They were not available at the time the decision was made although the Employer could have asked for them had it chosen to consider her explanation regarding the disputed claims, argued the Union. This request seeks to expand the grounds for discharge by attempting to rely on facts that were not considered at the time of discharge, argued the Union. [8] The Employer argued that the Grievor raised various issues in her defence at the time of the Employer’s investigation, including her poor record-keeping, matters that the Employer was entitled to challenge in relation to the issues of just cause and penalty. The material requested was arguably relevant to these issues and the Employer argued that it was entitled to the production requested or be advised that there was nothing to be produced. The material was not privileged, noted the Employer, and the test for production remained arguable relevance to the issues in dispute between the parties. [9] In its decision to terminate the Grievor’s employment, the Employer concluded that the Grievor knowingly filed false health benefits claims. The termination letter states that the Employer considered the Grievor’s claim of personal hardship, of not keeping accurate information, and that she did not have all the receipts for services claimed. The Union has put the Employer to the strict proof of its claim that it had cause to discipline the Grievor and that the appropriate penalty was the termination of her employment. [10] I am not persuaded by the Union’s argument asserting the lateness of the request post-termination. A Grievor has some responsibility to preserve relevant evidence once they are on notice of an Employer’s decision and files a grievance challenging that decision. [11] To the extent that any failure or omission to retain this material occurred earlier, there is already an overriding Union concern as to the Employer’s delay in advancing its claims. The parties have agreed that the Employer may lead evidence pertaining to all the claims set out by Manulife. However, this is without prejudice to the Union’s right to make argument in final submissions that no weight should be given to any evidence regarding claims made more than a year prior to Manulife notifying the Grievor that it was investigating her past claims. Those issues of delay will be heard in due course and the Union will be able to make its - 4 - argument with respect to asserted prejudice in that context and in the context of all of the evidence. The issue at present is the arguable relevance of the materials requested. [12] It is incumbent on the Employer to establish that the services claimed were not rendered as claimed in order to support its decision. The Employer has identified and relies on 81 health benefit claims that it asserts were false. Calendar entries or electronic notes that reference claims and/or treatments may speak to matters such as whether an appointment was booked, who was to receive care (the Grievor or one of her children), where the service was to be provided, and/or whether the service was cancelled. This is information arguably relevant to whether health care services that were claimed for certain dates were provided as claimed. The fact that it was not relied on earlier in circumstances where the Employer was not in a position to require its production does not render the material irrelevant. Nor does it expand the grounds for discharge as the request can be related to the claims already relied on by the Employer. [13] The fact that the material is in electronic format is immaterial. If entries were on a wall calendar, there likely would be little dispute that the hard copy was properly to be produced and if not retained, it would be open to the parties to explore that in examination of the witness, making final submissions as necessary regarding what weight should attach and/or whether inferences should be drawn. [14] In the result, I find that the material sought to be produced; that being, ‘any notes/calendar entries on the Grievor’s phone or other electronic device, referencing health benefit claims and/or treatments’ is arguably relevant to the issues in dispute and is subject to being produced. I therefore order that said material be produced to the Employer by no later than August 30, 2024. [15] For purposes of the next hearing date of October 4, 2024, I anticipate the Employer may provide an opening statement. Subject to its opportunity to have reviewed the production ordered, that statement may be limited to the Employer’s position with respect to the issue of cause for discipline, with the Employer reserving its right to provide a more fulsome opening, including its position regarding the issue of penalty, at the next scheduled date in November 2024. In any event, it is expected that the hearing of viva voce evidence will commence on October 4, 2024. Dated at Toronto, Ontario this 9th day of August, 2024. “Marilyn A. Nairn” Marilyn A. Nairn, Arbitrator