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HomeMy WebLinkAbout1992-3155.Howe,Dalton.Loach.95-08-29 / / ~.. ;;..- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ON TA RIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT ~ " BOARD DES GRIEFS 180 DY~"'-DAS,SffiEFT ~UfTE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONEIT~L~PHONE (416) 326-1388 \'1.::;':" -----;~~'VED EAU2100. TORONTO (ONTARIO) M5G IZ8 FACSIMILEITELECOPIE (416) 326-1396 REC .. GSB # 3155/92, 643/93, 656/93, 2168/93 . .... . OPSEU # 93A242, 93D868, 93D869, 930905, 94A038 I\UG 2 9 1995 IN THE MATTER OF AN ARBITRATION PUBLI\..J ~ERV\CE BOARDS Under APPEAL THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Howe/Dalton/Loach) Grievor .. and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE N Dissanayake Vice-Chairperson T. Browes-Bugden Member M Milich Member FOR THE B Symes GRIEVOR Counsel Eberts, Symes & Street Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 26, 1995 'i .;. 2 INTERIM DECISION The Board is seized with five individual grievances filed by three female grievors While the grievances raise several aspects and issues, for the purpose of this decision it suffices to observe that the grievors have alleged that they were subjected to sexual harassment and sexual discrimination at work. Ms. Diane Howe is one of the grievors. She filed two grievances on April 19, 1993, one alleging a violation of article 27.10 (Sexual harassment) and the other a violation of article A (discrimination on the grounds of sex). In her opening statement, union counsel stated that the evidence will show that Ms. Howe, as the only female classified correctional officer at the Haileybury jail, faced a wall of resistance from several of her male colleagues because of their belief that women did not belong in corrections, that they humiliated and tormented her by unwanted touching, pushing and pinching, that they spread degrading rumours about her and incited inmates against her and that unwanted comments were made to her It was stated that this treatment caused Ms Howe to seek medical treatment resulting in a leave of absence starting November 1992 By way of remedy, the union stated that it will be seeking inter alia, general damages for mental anguish, 3 punitive damages for failure to act adequately once the employer became aware of the situation and compensation for all losses, including the difference between the STD benefits Ms. Howe received and the earnings she would have had, if she had been able to work during the period of her absence. This proceeding commenced on October 14, 1994 The union called a number of witnesses including Ms. Howe and the psychiatrist who treated her, Dr. Alex Bell Prior to Ms Howe being sworn in, union counsel advised the Board that she would be filing a number of medical reports through Ms Howe, that employer had been provided notice as required by the Evidence Act and that employer counsel had sought and received an undertaking that the author of the reports would be produced for cross-examination. Ms. Howe testified about numerous alleged incidents of sexual harassment and discrimination she had to endure since she commenced as a correctional officer at the Haileybury Jail She also testified about problems she had in her personal life including abuse by a relative, the death of a child, and a financial crisis she and her husband faced Ms Howe further described the medical assistance she sought and received in order to cope with her depression 4 Dr Alex Bell, a psychiatrist, treated Ms Howe and wrote the medical reports which were filed in evidence He testified about Ms Howe's medical visits, his assessment of her condition during those visits and the treatment he gave her, including counselling provided by nurse Brenda Holbein under his supervision. He testified about his diagnosis and his prognosis for Ms. Howe's recovery Dr. Bell was cross-examined in detail about the medical conclusions he had reached in his reports, as well as the opinions he expressed during his testimony. Specifically, he was cross-examined at length about the basis upon which he determined the cause or causes which precipitated Ms. Howe's depression. The union called a total of 15 witnesses and rested its case on April 19, 1995. At that point, the employer made a motion that the Board make the following orders: (a) Tha t Ms Howe submit to a psychiatric examination by Dr Hy Bloom for the purpose of preparing a medical legal report on the nature and cause or causes of the depressive episodes which formed the reason for Ms Howe going on STD on November 12, 1992 and subsequently on LTD on May 12, 1993 (b) That Ms Howe shall direct Dr Alex Bell and Nurse Brenda Holbein to provide union counsel with copies of their clinical notes on the grievor 5 (C) That Dr Bloom be provided with copies of all medical documents with respect to Ms Howe, which are in evidence in this proceeding Employer counsel agreed that the orders requested in (b) and (c) above would become relevant only if the Board allows the order for a psychiatric examination requested in (a) above Counsel submitted that if the order for a psychiatric examination is issued, and if, following the examination, Dr. Bloom determines that Ms. Howe should be subjected to psychological testing, the employer would be seeking a further order in that regard, unless Ms. Howe voluntarily agrees. Counsel agreed that the Board should attach conditions and safeguards to any orders made in order to ensure that only medical information pertinent to the issues in this proceeding are disclosed and that such disclosure is limited for the use of persons authorized by the Board, and limited for the purposes of this proceeding The parties addressed two issues relating to the request for an order to submit to a psychiatric examination (a) Whether the Board had jurisdiction to make such an order (b) If so, whether the Board should exercise its jurisdiction in the circumstances of this particular case The union reserved its right to challenge Dr Bloom's qualifications as an expert witness and his status as an "independent" expert 6 Jurisdiction to order submission to a psychiatric examination The employer submits that this Board has already decided that it possessed jurisdiction to order a submission to a psychiatric examination where it is deemed necessary to ensure a fair hearing Reliance was placed on Re Wilson, 2855/91 (Gray) . In that case the grievor, a registered nurse, alleged that by failing to provide psychiatric coverage for patients under her responsibility and by subjecting her to differential treatment, the employer had violated article 18.1 of the collective agreement which required the employer to "continue to make reasonable provisions for the safety and health of its employees", as well as the management rights clause. It was alleged that the work environment created by the employer had caused the grievor to become increasingly depressed, resulting in a lengthy medical leave of absence The grievor sought, inter alia, compensation for all losses resulting from her absence from work, as well as general damages for mental anguish In Wilson, the union had called one of the doctors who had treated the grievor to testify about his treatment of the grievor and his opinion that the clinical depression which the grievor suffered in the relevant period was caused by the employer conduct alleged by the grievor {, 7 The employer requested that the Board order that the grievor submit to a psychiatric examination by a physician selected by the employer It was argued that since the grievor had put his mental state into issue, fairness required that the employer be allowed to have an independent psychiatric examination of the grievor. The Board examined the legislative provisions from which it derived its jurisdiction, as well as arbitral decisions on the issue, and concluded that it possessed the jurisdiction to make the order requested by the employer. At p. 14 it wrote: 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 purposes of this proceeding We agree with arbitrator McColl that where the reliability 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 tribunal, a party adverse in interest is entitled to have the benefit of an examination by independent expert for the purpose of properly presenting its case to the impartial tribunal. Fairness requires it The ontario Legislature clearly intended that arbitrators and arbitration boards generally, and the GSB in particular, 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 party 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 disputes 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 determine 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 8 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 arbitration 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. Relying on the Blake principle, employer counsel submits that we should similarly conclude that the Board had the jurisdiction to make the order requested. Union counsel took the position that in the absence of consent by the grievor or specific statutory authority, the Board lacked jurisdiction to direct that the grievor submit herself to a psychiatric examination Union counsel submitted that the physical and mental integrity of a person is part of the right to privacy protected by section 7 of the Canadian Charter of Rights and Freedoms She contended that to force a person to undergo a psychiatric examination, with the potential for further psychological testing, was intrusive of this sacred right to privacy that every person is guaranteed Counsel referred to a number of statutes in support of her argument that intrusions into a person's privacy through medical examinations are generally not acceptable and that where such intrusions were deemed justified, the legislature had specifically allowed it in clearly defined circumstances 9 and subject to very strict conditions and safeguards Reference was made to The Freedom of Information and Protection of Privacy Act, The Requlated Health Professions Act, The Mental Health Act, The Public Hospitals Act, The Child Protection . Act, The Children's Law Reform Act, The Substitute Decisions Act. Referring to S. 105 of the Courts of Justice Act, counsel pointed out that even the courts, despite its inherent jurisdiction and plenary powers, was relying on specific statutory authority when ordering medical examinations Counsel argued that there was nothing in the Crown Employees Collective Bargaininq Act, the Labour Relations Act, or the Statutory Powers Procedure Act, which conferred upon the Board the jurisdiction to order a psychiatric examination Counsel submitted that the Wilson decision was manifestly wrong when it inferred a power to make such an intrusive and extra-ordinary order from the general powers confer+ed upon the Board by statute She submitted that the Board cannot seize jurisdiction that it does not have under the statutory framework, merely because it felt that such power was useful or necessary in order to ensure fairness Counsel pointed out that the Board in Re Wilson was not referred to the decision of the Divisional Court in Re Balanyk and Greater Niagara General Hospital, (1988) 64 0 R (2d) 102 10 According to her, the Wilson decision is inconsistent with the court's decision in Re Balanyk. Counsel also relied on Re De Havilland Aircraft Co. of Canada (1989) 6 LAC ( 4 th ) 269 It is not necessary for us to determine whether the Board in Re Wilson was manifestly wrong, in deciding that it had jurisdiction to make the order for an independent psychiatric examination. For the reasons set out below, we have concluded that assuming that we had the necessary jurisdiction, this is not an appropriate case to exercise such jurisdiction Exercise of the iurisdiction It is common ground between the parties, and it was also 'recognized by the Board in Re wilson, that the jurisdiction to order an independent mental examination is to be exercised at the discretion of the Board. In Re Wilson, the Board stated that such jurisdiction is "not one which should be exercised lightly". In the particular circumstances of that case the Board decided in favour of exercising its jurisdiction At p 15 the Board observed An order that a grievor submit to an independent physical or mental examination for purposes of the arbitration of his or her grievance should not be made unless the arbitrator is satisfied that the grievor's past or present physical or mental state is clearly in issue in the arbitration proceeding and could properly be the subj ect of expert evidence based upon such an examination There may be other circumstances in which an arbitrator could fairly refuse to grant such an order when those conditions are met There are no such other circumstances here, however 11 The determination of whether to exercise the Board's jurisdiction to order an independent psychiatric examination must take into account all of the relevant factors in each particular case The paramount consideration in our view, must be the balancing of the interests of the person to be subjected to the examination and the interests of the party requesting it. Many factors may come into play when those interests are balanced in a particular case What is clear is that such an order should not automatically follow in every case where a person's mental state is an issue in dispute. This is a case where the grievor has alleged sexual harassment and discrimination on the basis of gender. The union and the employer have recognized in article 27.10.1 that all employees have a right to freedom from harassment in the workplace because of sex In article A 1 they have incorporated the prohibition against discrimination on the basis of sex, as defined in the ontario Human Riqhts Code. In addition, the employer is subject to a very extensive Workplace Discrimination and Harassment POlicy, which clearly prohibits sexual harassment and discrimination in the workplace and provides for a formal complaint procedure These provisions and policies are consistent with the general recognition of the existence of sexual harassment and discrimination in the workplace and the need to eradicate the same 12 In weighing the factors in favour of and against the ordering of a psychiatric examination, the nature of this case must be given due consideration. Medical examinations of any type are necessarily intrusive of the person's privacy psychiatric examinations are no exception Indeed, psychiatric examinations may have a more traumatic effect on the subject than physical medical examinations or blood tests. That by itself is a very good reason not to direct psychiatric examinations except where there are extremely compelling reasons for doing so. The Board should also consider the chilling effect, psychiatric examinations, ordered at the request of the opposite party, will have on the remedies offered to employees through the sexual harassment policy and the collective agreement The workplace Discrimination and Harassment Policy and the sexual harassment provisions in the collective agreement are effective only to the extent that the enforcement procedures are effective. We have evidence that even as a general matter women face a number of deterrents against coming forward with complaints of sexual harassment We are of the view that if the Board were to order psychiatric examinations routinely in sexual harassment cases, it would discourage women from coming forward That would be counter- productive to what the collective agreement and the Workplace Discrimination and Harassment Policy seek to achieve, i e 13 eliminate sexual harassment from the workplace Therefore, the Board must be careful in deciding when to accede to a request for such an order As a general rule, the ability of the employer to defend itself is a legitimate and significant consideration in determining whether a psychiatric examination should be ordered. However, given the factors weighing against such orders, there must be a very careful examination in each case as to how necessary or useful such an examination would be. In the present case Ms. Howe's treating physician had examined her and prepared reports, not specifically in preparation for litigation, but in the course of treating her as her physician The union presented the medical reports and called the doctor to be cross-examined. He gave his professional opinion that "for most part" , Ms Howe's depression was caused by the work environment The doctor was thoroughly cross-examined as to his awareness of non-work related stresses that Ms Howe had faced He was persistently questioned as to how, given the existence of those sources of stress, he concluded that the major cause of Ms Howe's illness was the work situation He was questioned on the extent of his knowledge as to what specific incidents of sexual harassment Ms Howe had allegedly 14 been subjected to, in order to be able to reach the conclusion as he did Based on that evidence the employer would be able to make submissions to the Board as to how reliable the doctor's opinion is. We are seriously sceptical about the potential weight and usefulness of a psychiatric examination conducted some three years after the illness set in In Re Wilson the Board stated that it was unable to say until the doctor had carried out the psychiatric examination and given his testimony, that the evidence would not be entitled to any weight. While we cannot make such a definitive finding in this case either, the proposed psychiatric examination would take place some three years after Ms Howe's depression was first medically diagnosed Employer counsel suggested to Dr Bell and Dr Bell admitted under cross-examination, that there is no definitive test such as an x-ray, to determine the cause or causes of a person's depression Dr. Bell conceded that he had to rely to a large extent on what Ms. Howe told him as to what was causing her depression Since that time, much has happened in the life of Ms. Howe She has received medical treatment and counselling She lodged a Workplace Discrimination and Harassment Policy complaint which was investigated and a report issued She launched a grievance, which ultimately carne before this Board Ms Howe testified and was cross-examined by employer counsel Some of these 15 subsequent events may have relieved Ms Howe's depression to a lesser or greater degree Some of the other events may have caused her additional stress There can be no doubt that these events would have affected Ms Howe's mental state one way or the other. In the circumstances we have serious doubts as to what weight, if any, may be attached to an opinion based I upon an examination conducted at this time We strongly feel that any weight called for would be minimal - not sufficient to outweigh the countervailing interests of the grievor in not being subjected to an intrusive psychiatric examination A possible, if not probable, scenario is that once we hear the evidence, we may decide that no weight or very little weight ought to be attached to that opinion evidence. If that happens, there would be no way to redress the unnecessary intrusion that would have taken place. In the circumstances, we are not inclined to order a psychiatric examination pending a determination as to the weight to be attached to the resulting opinion evidence In Re Wilson, the union raised the delay of the employer's request and the resulting delay in the completion of the hearing as a grounds for not ordering a psychiatric examination The Board concluded that that was not sufficient reason to deny the order In the present case also, the union raised the issue of delay, but for a different reason It was pointed out that the employer had received advance notice of 16 the contents of Dr Bell's reports and specifically his opinion that Ms. Howe's depression was caused for most part by the alleged incidents at work. Union counsel submits that in those circumstances, if the employer intended to test Dr Bell's opinion through an independent expert, it should have made the request for an order for an independent examination, before Dr Bell completed his testimony Counsel submitted that the rule in Browne vs. Dunn, required that the employer confront Dr. Bell with any contrary expert opinion it had, so that Dr. Bell would have an opportunity to respond. Rather than do that, the employer waited until the union had closed its full case before making the request Union counsel submits that it would be fundamentally unfair now to order a psychiatric examination and receive contrary expert opinions from Dr. Bloom. Dr Bloom then would get an opportunity to com.ment upon and challenge Dr. Bell's evidence, but Dr. Bell would have no opportunity to comment upon or contradict Dr Bloom's expert evidence Counsel for the employer recognized the potential prejudice to the union, but suggested that any concerns about the non-compliance with the rule in Browne vs. Dunn may be alleviated by allowing the union to call Dr. Bell in reply The whole point of the rule in Browne vs. Dunn, however, is that a witness must have the opportunity, while he is on the witness stand, to respond to a challenge to his evidence The union ought not be required to recall Dr Bell, when the employer delayed making the request despite full 17 knowledge of the nature of the opinion evidence tendered by Dr. Bell This is an additional factor which weighs against the granting of the order requested at this time If the union had obtained a psychiatric examination and a professional opinion from Dr Bell in preparation for litigation, there would be a stronger case for allowing the employer the same opportunity to obtain a similar independent opinion based on a psychiatric examination by a physician selected by it. That was not the case here Dr Bell testified about his treatment and the conclusions he formed during the period he treated Ms Howe in the normal course as her treating physician That does not justify subjecting Ms. Howe to a further psychiatric examination at this time with the potential for a battery of further psychological tests.. The considerations of the intrusive effect of such an order on the grievor and the potential adverse impact of such an order on the effectiveness of the processes set up to fight sexual harassment and discrimination in the workplace through the collective agreement and the Workplace Discrimination and Harassment POlicy, in our view, far outweigh the possibility of any prejudice the employer may suffer as a result of the unavailability of a psychiatric examination at this time I 18 In all of the circumstances, the Board declines to exercise the jurisdiction to order that Ms Howe submit herself to an independent psychiatric examination As a result the employer's request for access to the clinical notes becomes irrelevant. We however remain open to consider a request by the employer, if it so wishes, to be permitted to call an expert of its own to testify generally about matters such as the causes of depression and the methods used to determine the causes of depression and/or to comment upon the evidence already before the Board in that regard That is not something that is foreclosed by this award Dated this 29th day of August, 1995 at Hamilton, ontario. ~~~ issa~ke Vice-Chairperson i} '7 c>,!/&rnc:4?cL T Browes ,J.augden Member "Dissenting" (Dissent to follow) M Milich Member ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUND.Jl.S STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONEIT,"LEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 september 27, 1995 AMENDMENT RE 3155/92, 643/93, 656/93, 2168/93 OPSEU (Howe/Dalton/Loach) and the Crown in Right of ontario (Ministry of correctional Services) Please attach the enclosed Dissent of Mr M. Milich to your copy of the above noted decision. Yours truly, Of/ / ( . // l::;;f;i t. .. ,,/,",-:-,,~ L stickland Registrar LS/dbg Encl " Dissent in the matter of OPSEU ( Howe/Dalton/Loach) and Ministry of Correctional Services Having reviewed the interim decision in this matter, I find that I cannot concur with my colleagues. I would have excercised the jurisdiction and ordered Ms Howe to submit to a psychiatric examination as requested by the employer While there are differences between the cases, the parallels between this case and Wilson are, in my view, compelling. Both grievors put their mental state in issue claiming that their depression was a result of their work environment. The time frames are similar Ms. Wilson went off work in August, 1992, while Ms. Howe did so in November, 1992. The issue regarding a psychiatric examination in both cases arose during arbitation hearings some three years later The key differences between the cases are that Ms. Wilson returned to work in Julie of 1993 while Ms. Howe remains off work. As well, Ms. Wilson brought her complaint forward as a health and safety grievance while Ms. Howe's grievance is one of sexual harassment. The nature of a case does not change or alter the criteria or principles applicable to the determination of whether an order for the grievor to submit to a medical or psychiatric examination is appropriate In short, the governing principles are the same regardless whether the case arises out of a health and safety grievance or one of sexual harassment. If I undestand Wilson correctly, there are three principles. Firstly, the grievor must have put hislher physical or mental state in issue The Board must then be satisfied that the past or present state of the grievor's health is in issue in the proceedings, and, finally, that as <P " . such could properly be subject to expert eV.ldence based upon an appropriate examination by an expert. There is no question that the case before us meets these criteria. This is not a case where the employer or third parties made an issue of the grievor's mental state Ms. Howe did so herself and in the process detailed her problems as did her treating psychiatrist. By putting her mental state in issue, the grievor has diminished the degree of intrusiveness that such and examination would otherwise have, and, therefore, cannot be as telling in the balancing of interests that my colleagues have undertaken. Having forayed out that door the grievor cannot now retreat behind it for the full scope of its protection. The purpose of ordering such examination is to ensure a fair hearing to all parties concerned in the current proceedings. Stating that such an order may have a chilling effed on the remedies sought in future cases is akin to the floodgate arguements that board's of arbitration have rarely "if ever supported. The fact that a remedy may not be easily achieved does not necessarily translate into a retunctance to bring forward a complaint or to request the remedy Further in balancing the interests of'the parties in terms of remedies, it should be borne in mind that the remedies sought in this case range from individual and systemic remedies to the dismissal of two management employees. These circumstances must also be taken in consideration in determining the appropriate balance required to ensure a fair hearing. Nor, can we assume that such orders would become routine in these cases. Wilson sets out clear and cogent critena which must be met before an order IS contemplated. As in Wilson, we cannot definitively assess the potential weight or usefulness of the examination at this time. The Board in Wilson faced with similar circumstances with respect to the time frames, changed circumstances, and treatment was uncomfortable with prejudging the possible outcome or value of the evidence that such an examination might generate I have the same '" '. misgivings in this case and would have followed the example set by the Board In Wilson. As I understand it, the rule in Browne vs. Dunn is meant to ensure a fair trial It is not meant to create a situation unfair to either party As a board of arbitration, we are not required to follow the rule blindly We have the authority to establish our own procedure to ensure that a fair hearing is held. Recalling Dr Bell in rebuttal, while perhaps inconvenient, is certainly not unfair In fact, it may even enhance the faimess of the proceeding since the grievor and her counsel would have the beneit of hearing the expert's evidence and preparing accordingly before Dr Bell is called in rebuttal. For these reasons, I would have ordered that the grievor to submit to a psychiatric examination by an independent expert. # aLYd1~J? Michael Milich I I I I