Loading...
HomeMy WebLinkAbout1991-2855.Wilson.95-02-22 ONTARIO EMPLOY~_S DE LA COURONNE ~; ~; CROWN EMPLOYEES DE L 'ONTARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TELEPHONE.. (476) 326- I388 ~0, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ8 FACSIMILE/TEL~-COPlE ,. ,/4 16) ?26-~396 GSB# 2855/91 OPSEU# 92C021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wilson) Grievor -- - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE~ O. Gray Vice-Chairperson J. Carruthers Member D. Montrose Member FOR THE J. Monger UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE W. Hayter EMPLOYER Counsel Genest Murray DesBrisay Lamek Barristers & Solicitors HE]tRING November 16, 1994 December 6, 1994 REASONS FOR ORDER On December 6, 1994, we orally granted the employer's application for an order that the grievor submit to a psychiatric examination. This decision con- firms that order and sets out our reasons for making it. Background The grievance in this matter is dated December 23, 1991. It reads as fol- lows: STATEMENT OF GRIEVANCE I grieve that the employer has failed to provide satisfactory working conditions and the tools to enable me to perform my duties .effectively as an Aftercare Coordinator at Queen Street Mental Health Centre. I further grieve that the employer is discriminating against me. SETTLEMENT DESIRED That the employer establish and maintain "coverage" for my role as Aftercare Coordinator on Unit 1. That I be treated equally and be given the same consideration as the other Aftercare Coordinators at QSMHC. In his opening statement on the first day of the hearing in this matter, counsel for the union alleged that the employer had violated the management rights clause of the parties' collective agreement by treating the grievor differently from other employees "for no legitimate business purposes" and had, additionally, violated Article 18.1 of the agreement, which provides that 18.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Although the grievor has filed a complaint with the Ontario Human Rights Commission alleging racial discrimination, counsel for the union indicated that the union does not allege violation of Article A. 1 of the parties' collective agree- ment and makes no allegation of racial discrimination in these proceedings. The grievor is a registered nurse with advanced knowledge of psychiatric nursing. When she filed her grievance she was employed as the Aftercare Coor- dinator in Unit 1 of the Queen Street Mental Health Centre ("QSMHC") in To- ronto, and had been so employed since 1982. Part of the job of an Aftercare Co- ordinator (as defined in the Position Specification dated June 1, 1990) is to pro- vide aftercare service to an outpatient population by acting as primary therapist or case coordinator. Any outpatient in that program was a patient of QSMHC, and had to have an attending psychiatrist who took responsibility for the psychi- atric aspect of the patient's case, including required periodic reviews and pre- scribing of medication. The grievor could not take on a client in the Unit I aftercare program without there being a psychiatrist prepared to provide the necessary psychiatric coverage for that patient. There v~as no one particular staff psychiatrist respon- sible for providing coverage for whatever clients might be taken into the Unit 1 aftercare program. Coverage had to be arranged on a client by client basis. By contrast, the aftercare program in Unit 2 at QSMHC was organized in such a way that one of the staff psychiatrists spent part of his/her time as the psychia- trist who would provide coverage to the program during the mornings, and other staff psychiatrists in Unit 2 took part in a roster in which they rotated respon- sibility for providing coverage during the afternoons. It is the grievor's view, and the impression of the coordinator of the aftercare program in Unit 2, that the grievor had a good deal more difficulty getting psychiatric coverage for potential clients whom others wished to refer to her than the coordinator in the aftercare program in Unit 2 did. Management's failure to provide the grievor's program with psychiatric coverage arrangements similar to those made for the aftercare program in Unit 2 is the basis of the union's complaint that the employer breached the management rights clause of the collective agreement. Some of the union's allegations concerning the grievor's difficulties with psychiatric coverage are summarized in the passage from a letter filed by union counsel in connection with the employer's request that we order the grievor to submit to a psychiatric examination: Over the course of roughly l0 years, it became increasingly difficult for the grievor to get the coverage that she required in order to do her job. The grievor's skills - through no fault of her own - were increasingly under-utilized. More significantly, the lack of available coverage meant that the griever could never be sure that she would be able to secure psyctdatric coverage, where such coverage was required for the well being of her patients. She had to search for coverage throughout the Unit. This posed a particular difficulty ff community visits were required. On occasion, as the griever has testified, this led to crisis situations in which necessary coverage could not be secured. From 1989 onwards, securing coverage became increasingly problematic. Without coverage, she was unable to take new referrals to her programme. As a result, over an extended period of time, she watched her client base erode, and perceived that her job was going with it. She experienced increasing resistance from Psychiatrists within Unit 1 to support her programme, as any coverage they provided to her had the effect of increasing their workload. Mrs. Wilson frequently raised her concerns about the viability of the Unit 1 Aftercare programme with her supervisors, and informed them of the difficulty she was having with getting coverage. No workable solutions were presented by management, and the griever was, to a large extent, left to attempt to solve the problem herself through negotiations with individual psychiatrists. In 1991, the employer was expressly in_formed that the situation was causing Mrs. Wilson considerable stress. During his opening statement, union counsel alleged that the lack of psy- chiatric coverage for the Unit 1 aftercare program, management's lack of concern about the griever's difficulties in that regard and the differential treatment of her position in relation to other Aftercare Coordinators left the griever feeling undervalued, frustrated and professionally humiliated. He alleged that the work enviromnent created by the employer had caused the griever to become increas- ingly depressed. She sought treatment for this depression from her family phy- sician, Dr. Broughton and from a clinical psycl~ologist, Dr. Wood, in August of 1992. Shortly thereafter her Aftercare Coordinator position was declared redun- dant and she was transferred to another position. At around this time she com- menced a medical leave of absence because of her depressed state. Dr. Wood continued to treat her with respect to her depression. In January or February of 1993, she began seeing a psychiatrist, Dr. Eisen, with respect to her mental state, and began seeing Dr. Wood less frequently. The griever returned from her medical leave of absence in July in 1993, and is currently working in another nursing position at QSMHC. It is the union's position that the employer created a work environment for the griever that caused her stress, and failed to adequately respond when advised that she was finding it stressful. The union says this amounts to a viola- tion to Article 18.1 of the collective agreement. The relief sought, as outlined by counsel for union in his opening statement, includes: · A declaration that the employer violated Article 18.1 of the collec- tive agreement by failing to make reasonable provisions for the grievor's health and safety and failing to cooperate. · A declaration that management violated the management rights clause of the collective agreement by treating the grievor's after- care program differently from other aftercare programs in the in- stitution. · A direction that should the grievor be returned to a position equivalent to that of Aftercare Coordinator, proper psychiatric cov- erage be provided so that these health and safety concerns do not arise again. · An order that the employer pay the grievor damages covering the following: · Loss of vacation credits used to top up her short term disability benefits during her absence due to the depression she says was caused by the employer. · Cost of the psychological counseling she received from and after August 1992. · The short fall between the short term disability benefits and the wages she would have earned had she been able to continue working during the period of her absence due to the depression she says was caused by the employer. · Damages for mental anguish. (Having regard to the board's decisions in Lister, 340/89 (Samuels), Riggles- worth, 637/90 (Fisher) and Johnston, 1225/91 (Tacon), we should note that we have not been asked to determine as a preliminary matter whether, having re- gard to the scheme of compensation established under the Workers Compensa- tion Act, we could have (as a matter of law) or do have (as a matter of interpre- tation) jurisdiction under Article 18.1 to award compensatory or general dam- ages for a workplace injury of the sort alleged here.) In the course of hearings conducted January 18, May 3 and May 5, 1993 and September 8 and October 4, 1994 the union called three witnesses: the grievor, Maurice Archer (Aftercare Coordinator in Unit 2) and Dr. Wood. Dr. Wood testified about his treatment of the grievor and his opinion that the clinical depression which the grievor suffered in and after August 1992 was caused by the employer acts and omissions about which the grievor told him. Union counsel had initially indicated that the union would also be calling Dr. Broughton. Dr. Wood's testimony was completed on October 4, 1994. The next scheduled hearing day was November 16, 1994. At some point between those two hearing dates, counsel made an agreement that the union would not be relying on the written report of Dr. Broughton which had been put before us, that it would not be call- ing Dr. Broughton and that the employer would not invite us to draw any ad- verse inference from the union's failure to do so. In that same interval, counsel for the employer advised counsel for the union that he would be asking the board to make an order requiring that the grievor submit to psychiatric examination. We heard the arguments of counsel on that request on November 16, 1994. Argument Counsel for the employer argued that this board has the power to order a grievor to submit to a psychiatric examination when she has put her mental condition in issue, in order to ensure a fair hearing. He cited Re Maritime Paper Products Ltd. and Canadian Paper Workers Union, Local 1520 (1991), 19 (4th) i (MacDonald) and Re Corporation of City of Calgary and Calgary Police Association (Tomblin) (1993), 36 L.A.C. (4th) 5 (Tettensor). He submitted that on the facts of this case it would be unfair to alloW the union to put the grievor's medical condition in issue and then shield her from any test of that condition. He argued that we should either allow a psychiatric examination by an independent psychiatrist selected by the employer or refuse the union the right to rely on its own expert evidence with respect to the grievor's medical condition. He noted that this is not a case in which the issue of the grievor's mental condition is being raised by the employer. He argued that the power to order a psychiatric exami- nation must be inferred from the powers conferred by the Crown Employee's Col- lective Bargaining Act. He invited the board to consider Section 105 of the Courts of Justice Act and rule 33 of the Civil Rules of Procedure with respect to the medical exam/nat/on of parties, as a guide to the appropriate exercise of a juris- diction to order such an examination. He submitted that the question whether the grievor's work environment caused her depressive episode and the question whether that environment would or could have had a similar effect on anyone else are very much in issue in this proceeding and that it would be hampered in responding on those questions unless it had the same opportunity as the union to obtain expert evidence with respect to the grievor's condition. Counsel for the union argued that this board has no jurisdiction to order a psychiatric examination. He observed that the Courts o[dustice Act has no appli- cation to these proceedings and that the statutory framework for arbitration in Nova Scotia, where Maritime Paper Products Ltd. was decided, expressly authorizes an arbitration board to order a party to submit to a physical or men- tal examination where the physical or mental condition of the party is an issue. He argued that nothing in the collective agreement gives the board the power to make such an order and that the powers conferred on an arbitration board by Section 45 of the Labour Relations Act (which he conceded are available to the board in this case) do not expressly or impliedly confer the power to make such an order or to apply the provisions of the Courts o[ Justice Act to which counsel for the employer had referred. Counsel noted that subsection 8.1 of section 45 of the Labour Relations Act confers on arbitrators and arbitration boards the power, among others, "to make such orders or give such directions in proceedings as he, she or it considers appropriate to expedite the proceedings or to prevent the abuse of the arbitration process." He submitted that an order requiring the grievor submit to psychiatric examination would neither expedite the proceed- ings nor prevent abuse of the arbitration process. Indeed, he suggested that the making of such an order might be characterized as an abuse of the arbitration process. Counsel for the union referred to the award in Re Humber Memorial Hospital and Ontario Nurses Association (Tomlinson) (1993), 37 L.A.C. (4th) 125 (Kaufman), where at page 128 the arbitrator made the observation that It is doubtful that an arbitrator has the authority to order a person to submit to a medical or psychiatric examination. Counsel for the union questioned the motivation for the employer's re~ quest. He observed that the grievor had been on sick leave from August 1992 to July 1993 and that the employer had never questioned the legitimacy of the grievor's sick leave or suggested that she was not suffering from a depressive in. cident, as she claimed. Moreover, since her return to work no one had questioned her ability to perform her work. He observed, that questions asked in cross- examination of Dr. Wood suggested that the grievor might suffer from a para- noid personality disorder. If she does, union counsel observed, then she should not be working with clients. He suggested that the real reason for the employer's request was to get support for this "shot in the dark" at her competency to pert form her work. He submitted that the board should not permit the employer to conduct such a "fishing expedition." : Union counsel also questioned the efficacy of any psychiatric examination which might be conducted at this stage. He observed that the alleged injury was done in the period up to August of 1992 and that the resulting depressive epi- sode, in so far as it had incapacitated the grievor, had lasted until July 1993. He asked rhetorically how a psychiatric examination conducted today could speak either to the cause of injury or to the nature of its consequences. He further ar- gued that the request for an order that an examination be conducted was un- timely. It ought to have been made, he said, when this case began, while the grievor was still suffering from the condition in question. Counsel for the union noted that the conclusion to which the arbitration board came in the City of Calgary case was that it was appropriate to exercise a jurisdiction to require an independent medical examination "where the board was satisfied that the medical evidence before it was inadequate for equivocal." He invited us to find that the evidence which he had put before us on this issue was neither inadequate nor equivocal, and that therefore an independent medi- cal exam was not needed. Union counsel made reference to awards which addressed the question whether an employer could require a medical examination as a condition of a re- turn to work: Re Canadian National Railway Co. and Brotherhood of Mainte- nance of Way Employees (1988), 2 L.A.C. (4th) 92 (M. G. Picher); and, Re Lauren~ tian Hospital and Canadian Union of Public Employees, Local 161 (1990) 15 L.A.C. (4th) 340 (Charney). He argued that the issue here is analogous to the is- sue raised and dealt with in those cases. The board asked counsel for the union whether he would invite us to dis- count the evidence of any expert called by the employer to address the psycho- logical and psychiatric issues in this matter if that expert had not examined the griever. He answered in the affirmative. There was further discussion about the precise nature of the issues in this case. Counsel for the union then asked for the opportunity to consider whether it could narrow or define its case in such a ways as to demonstrate that a "defense" psychological examination of the griever was not required. Counsel for the employer consented to the union's having that op- portunity, provided it was understood (as it was) that this was most likely to delay the conclusion of the hearing in this matter whatever the outcome of the request then before us. The next scheduled hearing day was December 6, 1994. That morning counsel for the union delivered a letter dated December 4, 1994 (from which we quoted earlier at page 2) setting out the following definition of its case: The Union's legal position on the Health and Safety issue is straightforward. The employer is obligated by article 18.1 to make reasonable provisions for the health .and safety of its employees. It is submitted that this requires the employer take reasonable steps to protect employees from reasonably foreseeable workplace harm. This includes taking reasonable steps to ensure protection from stressors in the workplace where exposure to those stressors can foreseeably cause psychological harm. In determining whether the employer has met its obligation pursuant to Article 18.1 in relation to the issue before this Board, the following questions should be determined: 1) Was the griever exposed to workplace stressors? 2) Was the employer aware or ought it have been aware of the existence of these stressors? 3) Was it reasonably foreseeable that exposure to these stressors could cause p sychotogical hat m? 4) Did the Employer fail to "make reasonable provisions" to protect the griever l~om the stressors? 5) Did the griever suffer harm as a result of exposure to the stressors, in the form of a psychiatric disorder for which the employment related circumstances were significant contributing factor. It is submitted that a determination of whether the collective agreement has been violated can be determined by answering the first four questions. The answer to the final question is primarily relevant to the issue of remedy. In the case at hand, and without prejudice to any position that might be taken in another case, the Union takes the position that in determining whether psychological harm is a reasonably foreseeable result of exposure to the stressors (question 3), the Grievance Settlement Board ought to follow the lead of the Workers' Compensation Appeals Tribunal in its determination of whether a compensable stress related injury has occurred. Thus, the Board should ask whether a reasonable person in a similar situation would find the stressors to be potentially disabling or harmful. The word "potential¥' is used in recognition of the fact that all "reasonable people" will not have the same psychological response to stressors. In making this determination, the subjective "reasonableness" of the grievor is irrelevant. In the case at hand, Mrs. Wilson has provided evidence as to the stressors that she has been subjected to at the workplace, the fact that the employer was aware that she was exposed to these stressors, and as to the lack of activity on the part of the employer to alleviate the stressors. She also provided a description of her understanding of the effect that the stressors had upon her. Dr. Wood's evidence described the history of Mrs. Wilson's treatment and explained her depressive condition as he observed it. He provided his clinical opinion as to the nature of Mrs. Wilson's condition (reactive depression), and the cause of her condition (workplace stressors identified by Mrs. Wilson were a significant contributory factor to this depression). He also provided his expert opinion that a reasonable person in a similar situation would find the stressors to be potentially disabhng or harmful. As can be seen from the above, in the Union's view the determination of whether the collective agreement has been violated does not turn upon the grievor's subjective response to the stressors she has identified. It will turn on how a reasonable person could potentially have been affected. It is submitted that ff the Board accepts this approach to the issues as appropriate, it ought not order that Mrs. Wilson be examined by Mr. Hayter's expert, as that expert will be able to render an opinion on the potential effect on the reasonable person of the stressors to which Mrs. Wilson was exposed. If it is found that the employer did violate the collective agreement on the basis of this test, a declaration ought to be issued to that effect. The Board will then have to determine whether the workplace stressors were a significant contributing factor in the development of the psychiatric disorder experienced by Mrs. Wilson, in order to determine whether she has suffered harm which is compensable under the collective agreement. Having had an opportunity to consider the letter, counsel for the employer advised the board it was still his position that an order should go requiring the grievor to submit to examination by Dr. Hy BloOm. The union does not challenge either Dr. Bloom's psychiatric qualifications or his independence. Jurisdiction To Require A Physical or Mental Examination The doubt expressed by the arbitrator in Humber Memorial Hospital, su- pra, may have been obiter dicta, since the balance of the paragraph in which that - lO- doubt is expressed suggests that the arbitrator thought it was premature to ex- ercise any authority she might have in that regard: It is doubtful that an arbitrator has the authority to order a person to submit to a medical or psychiatric examination. At this point it remains to be seen whether such evidence is or will become necessary or desirable. I therefore decline to order the grievor to undergo a psychiatric examination. That award is brief, for reasons explained in it. There is no other mention of the matter of jurisdiction in the award, no indication of the arguments made on that issue of jurisdiction, and no explanation of the basis for the arbitrator's doubt. The observation in the second sentence of the passage just quoted may be related to this earlier observation (at p. 126 of the report of the award): I understand that the grievor alleges that she was under duress and/or alternatively suffering ~om depression when she signed a memorandum of agreement on December 18, 1992. If this correctly states her position, then the onus rests upon her to establish what she contends in evidence. It is only after she has established this on a prima [acie basis that the hospital would be required to call evidence to rebut her contention(s). The Nova Scotia legislation which governed the proceedings in Maritime Paper Products gave the arbitration board there the same powers as a judge un- der that province's Civil Procedural Rules. Those rules expressly conferred the power to order a party to submit to a physical or mental examination when the physical or mental condition of the party was in issue, in terms similar to those of subsecti6n 105(2) of Ontario's Courts of Justice Act. There is no similar express provision in any legislation applicable to our proceedings. The board of arbitration in City of Calgary was asked to order an inde- pendent medical examination before its hearing commenced. No statute ex- pressly conferred on it the power to make such an order. The board nevertheless concluded that it had the power to do so. At page 8 o.fthe report of the award, the board stated that: On the basis of these authorities and others cited, the board was unanimously of the view that it had jurisdiction to require an independent medical examination in appropriate circumstances. It was of the view that appropriate circumstances would exist where the board was satisfied that the medical evidence before it was inadequate or equivocal. An order should not be made until a board is satisfied that such evidence would be essential to a fair hearing. Since the board did not have any evidence before it at the time the request was made, it ruled it would not then make the order requested. One of the authorities referred to and relied upon by the board in City of Calgary was Re University of British Columbia and Association of University and College Employees, Local I (1984), 15 L.A.C. (3d) 151 (McColl). That award dealt with a pre-hearing application for an order that the grievor attend a physician designated by the employer for the purposes of providing the employer with a medical assessment of the grievor to be used by the employer in preparing its de- fense in the arbitration. The arbitrator had before him the allegations of the parties concerning the subject matter of the grievance. He concluded that the medical state of the grievor was relevant to the proceedings. He had then to con- sider whether an arbitrator has the jurisdiction to order a party to a proceeding to submit to an independent medical examinatiOn by the party adverse in inter- est. After observing that the B.C. Supreme Court Rules expressly conferred such a power on that province's courts, he made these observations at pages 159-60 of the report of the award: The Canadian experience has largely been based upon an interpretation of the various local rules or statutes which specifically provide for the right of access to a medical examination. A general analysis would indicate that whatever the particular wording, the purpose and intent is to provide "equality" in access to expert medical opinions to all parties in a dispute where medical evidence is anticipated. In Great Britain, on the other hand, similar rules were not prevalent in the result that initially a party was not bound to submit to a medical examination by a physician appointed by the party adverse in interest. This does not mean to say, however, that medical examinations per se were refused. "As the law developed in England, it was decided that if a plaintiff unreasonably refused to submit to a medical examination required by a defendant the Court would stay the action. It was later decided that if a plaintiff was examined at the behest of a defendant it was fair that he should receive a copy of the report" per Aikins J. A., Bates v. Stubbs (1979), 101 D.L.R. (3d) 623 at p. 629, 15 B.C.L.R. 65 at p. 72. The law developed to the point that the authors of 17.Hals., 4th ed., p. 64, para. 85, are able to say: If a plaintiff is unwilling to submit to a medical examination by a defendant's doctor, an order that the action be stayed will ordinarily be made on the terms that the defendant should provide the plaintiff with a copy of the report of such an examination. It is usually incumbent upon a plaintiff to afford a reasonable opportunity for medical examination. In Great Britain, therefore, where the courts relied upon the common law development, the position was that where a party refused to submit to a medical examination by a physician appointed by the other side, the court could, and often would stay the proceedings where it thought it just and reasonable to do. In Edmeades v. Thames Board Mills Ltd., [1969] 2 All E. R. 127 at p. 129, Lord Denning M.R., stated: "It can, therefore, order a stay ff the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not." However, a dissertation on whether or not the jurisdiction claimed arises by virtue of common law or statute is not necessarily helpful to labour arbitrators in British Columbia. The powek, ff it exists, is not one which is specifically provided in the Labour Code, R.S.B.C. 1979, c. 212, the legislative sanction to an arbitrator's authority. This does not mean to say, however, that all powers given to labour arbitrators in the province must be specifically provided within the framework of the legislationr It is sufficient to observe that if the power exercised is one which is recognized at common law, or one which relates to the powers of the courts to ensure a just and fair hearing, the power is one which is perhaps properly exercisable within the inherent jurisdiction of an arbitrator unless there is specific language to negate this authorization. From what follows this passage in his award, it is apparent that what arbitrator McColl speaks of as "the inherent jurisdiction of an arbitratoF' is not something which arises independent of the statute and collective agreement from which his or her jurisdiction is otherwise derived. Rather, it is that jurisdiction which is in- herent in or implied by the express conferral of authority to make a final and binding determination of a dispute and the attendant requirement that this be '~' done in a fair manner. Arbitrator McColl was careful to observe that the issue before him was not whether the employer had a contractual right to require an employee to submit to a medical examination during the course of his or her employment or in order to enable him or her to regain that employment after a period of absence due to illness. He concluded that awards which addressed that issue were not germane to the question he had to address. The issue before him, he said, was "what amounts to a fair hearing." With respect to that question he said It is sufficient, I think, to say that where there is a substantive issue as to whether or not a medical report is rehable in terms of its diagnosis or conclusions, and that issue is bound to be determined by an impartial tribunal, a party adverse in interest is entitled to have the benefit of an independent expert for the purpose of properly presenting its case to the impartial tribunal. It is apparent that by "benefit of an independent expert" he meant the benefit of an independent expert who had had the opportunity to examine the party whose condition is in issue in the proceeding. He concluded that he did have the juris- diction to direct that the grievor attend a medical examination. Subsection 7(3) of the Crown Employees' Collective Bargaining Act, S.O. 1993, c. 38, requires (as did Section 19 of the previous Act) that every collective agreement relating to Crown employees shall be deemed to provide for final and binding settlement by arbitration by the Grievance Settlement Board ("the GSB') of all differences arising out of the interpretation, application, admini- stration or alleged violation of the agreement. Subsection 48(I) of that Act states that the GSB "shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions." The union agrees that. the GSB has all the powers con- ferred on arbitrators and arbitration boards by subsections 8 and 8.1 of the La- bour Relations Act, R.S.O. 1990, c. L.2, as amended, which provide, in part, as follows: (8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers: 1. To determine the nature of the differences in order to address their real substance. 2. To determine all questions of fact or law that arise. 3. To interpret and apply the requixements of human rights and other employment-related statutes, despite any conflict between those requirements and the terms of the collective agreement. 4.To grant such interim orders, including interim relief, as the arbitrator or arbitration board considers appropriate. (8.1) An arbitrator or board of arbitration has the following powers: 1. To require any party to furnish particulars before or during a hearing. 2.To require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing. 3. To enter any premises where work is being done or has been done by the employees or in which the employer Carries on business or where anything is taking place or has taken place concerning any of the differences submitted to the arbitrator or arbitration board and inspect or view any work, material, machinery, appliance or article at the premises and interrogate any person about any of the differences or about any work or thing. 4.To authorize any person to do anything that the arbitrator or arbitration board may do under paragraph 3 and to report to him, her or it about it. 5. To make such orders or give such directions in proceedings as he, she or it considers appropriate to expedite the proceedings or to prevent the abuse of the arbitration process. The issue before us was not whether the employer had a contractual right to require the grievor to undergo a psychiatric examination. The issue was whether it should have the opportunity of an independent examination for pur- poses of this proceeding. We agree with arbitrator McColl that where the reliabil- ity of one party's expert's opinion about the physical or mental condition of that party is challenged and that issue is bound to be determined by an impartial tri- btmal, a party adverse in interest is entitled to have the benefit of an examina- tion by an independent expert for the purpose of properly presenting its case to the impartial tribunal. Fairness requires it. The Ontario Legislature clearly in- tended that arbitrators and arbitration boards generally, and the GSB in par- ticutar, have the powers necessary to conduct a fair hearing. It seems to us that the board's power to require, in an appropriate case, that a grievor or other part~' submit to independent medical examination at the behest of a party opposite in interest is implicit in the conferral on it of the power and duty to arbitrate dis- putes in a fair and expeditious manner. If it were necessary to point to some statutory provision other than the one which gives the board the authority to de- termine its own practice and procedure, we would say that clause 5 of subsection 45(8.1) of the Labour Relations Act addresses the matter. Anything which makes the arbitration process unfair is an abuse of that process. The power to give such orders or directions as may be appropriate to prevent the abuse of the arbitra- tion process is a power to give such orders or directions as may be necessary to ensure a fair hearing. For these reasons, we concluded that we had the power to require that the grievor submit to examination by a qualified psychiatrist independent of the employer. Whether The Jurisdiction Should Be Exercised The power to order an independent mental or physical examination is not one which should be exercised lightly. It should only be exercised when the arbi- trator or arbitration board is satisfied that the fair conduct of a hearing requires it. evidence based on an examination conducted now would not be entitled to any weight. The union also argued that the request should be denied because of the employer's delay in making it, The issues in arbitration proceedings are often not as clearly defined be- fore a hearing begins as they are before a trial commences in the civil courts. For this and other reasons, arbitrators may be more reluctant than the courts would be to order an independent mental or physical examination on an opposed appli- cation at a pre-hearing stage. In both Maritime Paper Products and City of Cal. gary, arbitration boards rejected a employer request made before or early in the hearing, but later granted such a request after hearing the union's evidence (Maritime Paper Products, supra, at pp. 2-3; City of Calgary, supra, at pp. 8-9, 30 and 33-4). A party in the employer's position might be forgiven for having adopted a similar "wait and see" approach. We think it would have been preferable if the employer's request had been made earlier, but did not agree that the delay was a sufficient reason to deny the request. The resultant delay in completing the hearing was not of critical concern in a case in which the parties agreed to cancel four heating dates scheduled for November and December 1993 and did not request that they be rescheduled until several months thereafter. Counsel for the union expressed concern about the employer's motivation in seeking an independent examination, suggesting that the results of such an examination might be used for some purpose unconnected with these proceed- ings. We would have thought it implicit in the granting of an order requiring that a grievor submit to an independent examination that the beneficiary of the order could make use of the results of the examination only for purposes of the proceed- ings in which the order was granted. Our formal order will make that explicit. In the arbitration of labour relations issues it is generally understood that the hearing of issues of liability and compensation will be bifurcated, so that the initial hearing focuses on whether the responding party committed a breach for which it should be ordered to pay compensation to the opposite party, leaving issues relating solely to the amount of compensation to be addressed in a subse- quent hearing if there is a finding of liability to pay compensation and the par- ties are unable thereafter to resolve the issue of.quantum. Sometimes the arbi- trator or arbitration board determines, usually on agreement of the parties, that the hearing of issues other than quantum should also be deferred. There was no specific agreement or determination in this proceeding that we would defer the hearing of evidence relevant to any matters other than the quantum of compen- sation. In his letter of December 4, 1994 union counsel proposed, for the first time, that the hearing of further evidence on the question whether the griever actually suffered harm as a result of the alleged acts or omissions of the em- ployer ("the actual harm issue") should be deferred until after we determine whether the employer committed acts or omissions which it could have foreseen might harm someone in the griever's position ("the foreseeably harmful conduct issue"). If we adopted that approach, he said, then we should also delay ordering an independent examination, since the employer's expert could opine on the fore- seeably harmful conduct issue without having examined the griever. It was im- plicit in counsel's suggestion, and in the way the union had presented its case, that the foreseeabty harmful conduct issue and. the actual harm issue are both properly the subject of expert testimony. The union was able to and did have its expert address both issues at one time. If we had adopted union counsel's sug- gestions, the employer would not have had the same opportunity. It would have been put in a position in which it might have had to call its expert twice. Adopt- ing union counsel's suggestions would also have delayed the independent exami- nation with respect to the actual harm issue. That did not seem a fair approach in the circumstances. We were not prepared tO'defer the hearing of further evi- dence with respect to the actual harm issue. We concluded that the employer should have the opportunity of an inde- pendent psychiatric examination of the griever with respect to the nature and cause of the depressive episode which formed the reason for her sick leave from roughly Augus~t 1992 to July 1993. There being no objection to the qualifications or independence of Dr. Bloom, we accepted the employer's request that he be authorized to conduct the examination. i8- Related Matters Having been advised that we would order that the grievor submit to ex- amination by Dr. Bloom, counsel for the employer asked that we also order that she submit to psychological testing in such manner and by such psychologists as Dr. Bloom might consider appropriate after he has begun his own examination. Counsel said Dr. Bloom had told him it was possible that he might wish to have the benefit of such testing. We declined to make that additional order, which would have had the effect of delegating our jurisdiction in this regard to Dr. Bloom. If Dr. Bloom concludes that such testing is desirable, he will not doubt tell employer counsel what tests he thinks should be conducted, and by whom. We would expect employer counsel to then discuss the matter with union coun- sel, in an effort to secure agreement. It would only be in the event that the grievor refused to submit to testing requested by Dr. Bloom that we would have to return to this issue. Counsel for the employer also requested that the clinical notes of Dr. Broughton and Dr. Eisen be produced for review by Dr. Bloom in connection with his examination of the griever. Counsel for the union agreed, on the grievor's half, to production of Dr. Broughton's notes on terms similar to those imposed. when we earlier ordered Dr. Wood to produce his clinical notes for examination by employer counsel. Union counsel opposed the production of Dr. Eisen's notes, however, on the ground that the union was not relying on any report or testi- mony by Dr. Eisen. Dr. Eisen was treating the grievor for the depressive episode which she says the employer caused, during the period or sick leave in respect of which the grievor claims compensation. His clinical notes are arguably relevant both to the issues and to the examination to be conducted by Dr. Bloom. They should be pro- duced. It would have been inappropriate to directly order Dr. Eisen to produce the notes, since he had no formal notice that such an order was being sought. We ordered that the grievor direct Dr. Eisen to provide union counsel with copies of his clinical notes on the grievor, and that counsel then produce those documents on terms as to limited readership similar to those which we applied earlier to the production of Dr. Wood's notes. Formal Orger We hereby confirm our oral orders of December 6, 1994 that 1. The grievor shall submit to psychiatric examination by Dr. Hy Bloom for the purpose of his preparing a medical legal report on the nature and cause or causes of the depressive episode which formed the reason for her sick leave from roughly August 1992 to July 1993. 2. The grievor shall direct Dr. Eisen and Dr. Broughton to provide union counsel with copies of their clinical notes on the grievor. Union counsel shall provide counsel for the employer with one set of legible copies of those notes. Employer counsel may make one set of copies of the notes for Dr. Bloom's use, ~but no others. 3. An acknowledgment in the form annexed hereto as Appendix "A" is to be signed by any persons who review the aforesaid n°tes or the notes of Dr. Richard Wood produced earlier :~. these proceedings. Except with the consent of the ion, or upon further ora:r of this Board, only the following individuals will be permitted to review any of those notes: Mr. William J. Hayter, Dr. Hy Bloom, Ms. Vered Gorewicz. 4. Except with the consent of the union, or upon further order of this Board, only the grievor, union counsel, Mr. William J. Hayter and Ms. Voted Gorewicz shall be permitted to review or be told of the contents of any report of Dr. Bloom. Except with the consent of the union, or upon further order of this Board, no use shall be made of any report of Dr. Bloom concerning his examination of the grievor except for purposes of these proceedings. Dated at Toronto this 22day of February, 1995. Gr~ D. Montrose, Member ers,' Member Appendix "A" I acknowledge that I have reviewed clinical notes prepared by Dr. Richard Wood, Dr. Eisen and/or Dr. Broughton in connection with Ms. Fay Wilson and that, by order of the Grievance Settlement Board, I am not to disclose the notes or the content or subject matter of the notes to anyone and that I am not to dis- cuss the content of these notes with anyone except counsel in this proceeding, Mr. William J. Hayter, and Ms. Vered Gorewicz, Human Resources Consultant, Ministry of Health. I understand that breacl~ of this order constitutes a contempt whictx is punishable at law as it' it were a contempt of court. Dated this day of ,1995.