HomeMy WebLinkAbout2010-2380.Lefkowitz.13-03-11 Decision2012 - OPSEU (Lefkowitz) and Ministry of Community Safety and Correctional Services, GSB#2010-2380, (Briggs)
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# 2010-2380 UNION# 2010-0224-0031 IN THE MATTER OF AN ARBITRATION
Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lefkowitz) Union -and -The Crown in Right of
Ontario (Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Eric del Junco Counsel FOR THE EMPLOYER Peter Dailleboust Ministry of
Government Services Counsel HEARING February 21, 2013.
-2 -Decision [1] The grievor, Marsha Lefkowitz is a Registered Nurse who worked at the Owen Sound Jail until its closure. During the course of her employment she filed a grievance that
alleged various violations of the collective agreement and statute as a result of being verbally assaulted by the Operational Manager. It was said by the Union that the incident constituted
an egregious act of misconduct causing significant emotional harm. [2] By way of remedy the grievor is seeking, amongst other things, an amount of fifty thousand dollars in general damages
for the “stress, embarrassment humiliation and violation of her rights.” [3] The Union has put the Employer on notice that it intends to call the grievor’s physician to testify. A reporting
letter from Dr. John S. Lindsay was provided to the Employer. It was stated therein that Dr. Lindsay is a medical doctor with a practice limited to mental health and psychotherapy. He
saw the grievor for a period in 2003 and 2004 and again in 2011 after the incident that gave rise to this grievance. His report is an account of his experience treating the grievor.
[4] After receiving the reporting letter the Employer requested production of Dr. Lindsay’s clinical notes regarding the grievor’s mental health from 2003 to present. The Union took
issue with aspects of this request. [5] This decision deals only with the issue of whether the clinical notes of Dr. Lindsay from the 2003 and 2004 period should be given to the Employer.
The Union does not suggest that the clinical notes beginning in 2011 are inappropriate for production.
-3 -[6] It was the Employer’s contention that because the Union is asserting that the incident at issue in this matter has caused damage to the grievor’s mental health, it is entitled
to know the complete medical history known to Dr. Lindsay. It was stated in the Medical Report that the grievor had a pre-existing condition of Post Traumatic Stress Disorder. Dr. Lindsay
also wrote that the PTSD was triggered again by the incident. Accordingly, the Employer said, the facts leading to that initial diagnosis and treatment are highly relevant to the matter
at hand. [7] The Union asserted that the clinical notes from the grievor’s treatment in 2003 and 2004 cannot shed any assistance on what harm occurred in 2010 and for that reason it
should not be produced to the Employer. The earlier clinical notes deal with issues that are historical and personal and therefore cannot assist in the Board’s determination of this
grievance. The material must be necessary and essential and not merely arguably relevant. The Employer’s request does not meet that accepted arbitral test in the Union’s view. [8] In
the alternative, it was the Union’s position that the “personal information pertaining to the grievor, her family and any third parties which is not material to the issues in this case”
should be redacted. [9] As set out in Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Jones) GSB#2005-3536 (Leighton), and in other
decisions from this Board, where the grievor has put her mental health at issue and has indicated that a psychiatrist (or psychotherapist in this case) will give evidence, the notes
and records of that
-4 -attending physician pertaining to the grievor’s mental health should be produced to the Employer. I am of the view that it is particularly necessary in this case to disclose the
clinical notes from 2003 and 2004 because of the grievor’s pre-existing condition. [10] The Union noted that much of the information found in the clinical notes is highly personal and
private. I am sympathetic to the grievor’s concern regarding an invasion of her privacy but I am of the view that the Employer’s right to a fair hearing outweighs that concern. [11]
The Employer stated in its request for production that it was content to be held to the conditions set out in Re Jones (supra). Accordingly, one copy of the file will be sent to Mr.
Dailleboust. He is allowed to have only one advisor review the file. None of the documents can be copied. Finally, the documents can be used only for the purpose of this matter and the
entire contents of the file shall be returned to the grievor upon completion of this litigation. [12] I expect that this information can be produced in sufficient time so as to allow
this matter to continue on our next scheduled hearing day. If there is a problem in that regard, the Board should be notified. Dated in Toronto this 11th day of March 2013. Felicity
D. Briggs, Vice Chair
-2 -
Decision
[1] The grievor, Marsha Lefkowitz is a Registered Nurse who worked at the
Owen Sound Jail until its closure. During the course of her employment she
filed a grievance that alleged various violations of the collective agreement
and statute as a result of being verbally assaulted by the Operational
Manager. It was said by the Union that the incident constituted an egregious
act of misconduct causing significant emotional harm.
[2] By way of remedy the grievor is seeking, amongst other things, an amount
of fifty thousand dollars in general damages for the “stress, embarrassment
humiliation and violation of her rights.”
[3] The Union has put the Employer on notice that it intends to call the grievor’s
physician to testify. A reporting letter from Dr. John S. Lindsay was
provided to the Employer. It was stated therein that Dr. Lindsay is a medical
doctor with a practice limited to mental health and psychotherapy. He saw
the grievor for a period in 2003 and 2004 and again in 2011 after the
incident that gave rise to this grievance. His report is an account of his
experience treating the grievor.
[4] After receiving the reporting letter the Employer requested production of Dr.
Lindsay’s clinical notes regarding the grievor’s mental health from 2003 to
present. The Union took issue with aspects of this request.
[5] This decision deals only with the issue of whether the clinical notes of Dr.
Lindsay from the 2003 and 2004 period should be given to the Employer.
The Union does not suggest that the clinical notes beginning in 2011 are
inappropriate for production.
-3 -
[6] It was the Employer’s contention that because the Union is asserting that the
incident at issue in this matter has caused damage to the grievor’s mental
health, it is entitled to know the complete medical history known to Dr.
Lindsay. It was stated in the Medical Report that the grievor had a pre-
existing condition of Post Traumatic Stress Disorder. Dr. Lindsay also
wrote that the PTSD was triggered again by the incident. Accordingly, the
Employer said, the facts leading to that initial diagnosis and treatment are
highly relevant to the matter at hand.
[7] The Union asserted that the clinical notes from the grievor’s treatment in
2003 and 2004 cannot shed any assistance on what harm occurred in 2010
and for that reason it should not be produced to the Employer. The earlier
clinical notes deal with issues that are historical and personal and therefore
cannot assist in the Board’s determination of this grievance. The material
must be necessary and essential and not merely arguably relevant. The
Employer’s request does not meet that accepted arbitral test in the Union’s
view.
[8] In the alternative, it was the Union’s position that the “personal information
pertaining to the grievor, her family and any third parties which is not
material to the issues in this case” should be redacted.
[9] As set out in Re The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services) and OPSEU (Jones) GSB#2005-3536
(Leighton), and in other decisions from this Board, where the grievor has put
her mental health at issue and has indicated that a psychiatrist (or
psychotherapist in this case) will give evidence, the notes and records of that
-4 -
attending physician pertaining to the grievor’s mental health should be
produced to the Employer. I am of the view that it is particularly necessary
in this case to disclose the clinical notes from 2003 and 2004 because of the
grievor’s pre-existing condition.
[10] The Union noted that much of the information found in the clinical notes is
highly personal and private. I am sympathetic to the grievor’s concern
regarding an invasion of her privacy but I am of the view that the
Employer’s right to a fair hearing outweighs that concern.
[11] The Employer stated in its request for production that it was content to be
held to the conditions set out in Re Jones (supra). Accordingly, one copy of
the file will be sent to Mr. Dailleboust. He is allowed to have only one
advisor review the file. None of the documents can be copied. Finally, the
documents can be used only for the purpose of this matter and the entire
contents of the file shall be returned to the grievor upon completion of this
litigation.
[12] I expect that this information can be produced in sufficient time so as to
allow this matter to continue on our next scheduled hearing day. If there is a
problem in that regard, the Board should be notified.
Dated in Toronto this 11th day of March 2013.
Felicity D. Briggs, Vice Chair