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HomeMy WebLinkAbout1995-1880CODE97_08_29 ONrARIO EMPLOYES DE LA COUAONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M6G 1Z8 TELEPHONErrELEPHONE (41~) 32t1-1388 180, RUE DUNDAS OUEST BUREAU BOO, TORONTO (ON) M6G 1Z8 FACSIMILE/TELECOPIE (41t1) 32t1-13SHJ GSB # 1880/95 OPSEU # 95G259 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Code) Grievor - and - the Crown in Right of ontario (Ministry of Community & social services) Employer BEFORE F D Briggs Vice-Chair FOR THE R Murdock UNION Counsel Ryder, wright, Blair & DOYile Barristers & Solicitors FOR THE K Renison EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING August 16, 1996 The gnevor, MIchael Code, receIVed the followmg letter dated September 28, 1995 ThIS letter IS to advIse you of my deCISIon subsequent to the pre- dIscIplInary meetmg held on September 21, 1995 regardmg your unacceptable conduct m mappropnately mampulatmg the reschedulIng of your mutually agreed upon medIcal exammatIon WhICh had been scheduled by the employer wIth Dr Karen Stolee for August 22, 1995 Upon revIewIng all of the mformatIOn submItted to me, I have concluded that between July 27 and August 21, you mtentIOnally planned to deceIVe and mampulate two doctors and your employer four dIfferent tunes. When requested to explam your actIons to the employer at a meetmg on August 22, 1995, you were deceptIve once agam. The employer has shown undue patIence, perseverance and determmatIon m our efforts to assIst you m all ways possible, to unprove your attendance Through mutual agreement, at the recommendatIon of your umon, you were to attend the mandatory medIcal wIth Dr Stolee Your conduct unfortunately demonstrates deceIt and planned mampulatIon to counter the employer's efforts to obtam valuable mformatlon on your abilIty to defend your actIOns at the pre-dlscIplmary meetmg, you were unable to proVide a reasonable explanatIOn for your actIons. Your behaViour clearly Violates three standards of the MmIstry Standards of Conduct. Standard No 4 "ComplIance wIth SupervIsIOn" wherem you mtentIOnally planned not to comply wIth dIrectIOns of the employer Standard No 5 "Lawful and Honest Conduct" such a breach of trust and honesty has created an Irreconcilable breakdown of the mherent baSIC trust reqUired m any employee/employer relatIonshIp Standard No 7 as an employee of the RIdeau RegIOnal Centre, you represent the facilIty and the MImstry, your actIOns have placed the facilIty and the MmIstry m a precanous pOSItIon m terms of ItS reputatIOn wIth two local doctors. Under the powers delegated to me under the ReVised Statutes of Ontano, Chapter P 47, SectIOn 22(3) of the--PublIc ServIce Act, I find thIS IS Just cause for dIsmIssal. For the reasons stated above, you are dIsmIssed from employment at the RIdeau RegIonal Centre effective Fnday September 29, 1995 You are also advIsed that you have the nght to gneve thIS decIsIon as per Article 27 8.2 of the CollectIve Agreement. 1 2 The letter was sIgned by Wynn Turner, AdmInIstrator ofthe Centre The gnevor filed a gnevance the folloWIng day allegIng that he had been dIscharged wIthout Just cause. By way of remedy he asked to be reInstated and to be made whole In all respects. At the first day of heanng, a number of prelunInary matters were dealt wIth IncludIng dIsclosure and allegatIOns that the Employer attempted to expand the grounds of the dIscharge One of the matters raIsed by the Umon was an objection that certaIn eVIdence the Employer Intended to call dunng these proceedIngs was Improperly obtaIned and therefore inadmIssable. It was agreed that the partIes would provIde wntten submIssIons on thIS matter A bnef outlIne of the facts IS In order The gnevor has been Involved In the attendance reView program. It was agreed that the gnevor would undergo a mandatory medIcal assessment by Dr Stolee The gnevor sIgned an authonzatIOn whICh stated. Compulsory health eXamInatIOns dunng the course of employment wIth the Government of Ontano Include, among others, those ordered for repeated absences or the InabilIty of an employee to perform regular duties because of a confirmed or suspected health problem. The authontIes for these eXamInatIOns are a) For employees In the bargaInIng umt - Article 52.9 of the Collective Agreement between Management Board of CabInet and the Ontano PublIc ServIce Employees U mono b) For management and excluded employees, SectIOns 68(3) of RegulatIon 881 of the PublIc SefVIce Act. I, MIchael Code, am fully aware that I have been referred under the authonty described above on thIS release and that the examInIng physICian IS oblIged to submIt a report to the refernng officer III my MImstry I understand that the report only authorIZes the doctor to dISCUSS 3 conclusIOns and recommendatIons wIth the employer relatmg to my abilIty or mabilIty to contmue work wIth or wIthout modIficatIon of my present Job In sIgnmg thIS AuthonzatIon and Release, I certIfy that I have read thIS document and that I understand ItS contents. Further I authorIZe the phYSICIan to perform saId exammatIons, to prepare and submIt report of my condItIon and to make appropnate recommendatIons concermng me and my Job to my employmg MImstry Dunng the week of July 31, 1995, the gnevor spoke to Dr StoleeJs m her office. He mformed her that she had been chosen for the mdependent medIcal assessment and he asked her If the appomtment could be scheduled for October or November He was not successful III thIS request. On August 8, 1995, Faye Code (no relatIon to the gnevor) from the Employer's Human Resources department, spoke WIth Dr Stolee and was told of the gnevorJs attempt to schedule the assessment to a later tune The medIcal appomtment was establIshed for August 22, 1995, and the gnevor was mformed Via a regIstered letter Dr Stolee receIved the formal request for the medIcal assessment and the gnevor's authorIZatIon III a letter dated August 10, 1995 The gnevor ViSIted his personal phYSICIan, Dr Kerr, dunng the week of August 14, 1995, where he, accordmg to the Umon, "took the matter up WIth hun" Dr Kerr u1t1Illately left a telephone message on Dr Sto1ee's answenng machme requestmg that the mandatory medIcal be rescheduled. Dr Stolee's office called the gnevor on August 21, 1995 and told h1Ill that the appomtment had been rescheduled for October 10, 1995 The gnevor then telephoned two dIfferent supemsors to mform them of the reschedulIng. Accordmg to the Employer, one supemsor, Mr Hart, asked the gnevor If he knew why the appomtment had been rescheduled and the gnevor "stated that he dId not know why the appomtment had been cancelled and 4 suggested that perhaps vacatlOn schedulIng could have been the problem" Further, the gnevor IS alleged to have saId that, "he was sorry that the appomtment was cancelled as he wanted to get the mandatory medIcal over wIth" ThIS dISCUSSIon was r.epeated, more or less, wIth the second supel'Vlsor The followmg day there was a meetmg wIth members of management, the umon and the gnevor It was the U mon's assertlOn that dunng thIS dISCUSSIon It became apparent that the Employer had been speakmg wIth Dr Stolee and she had mformed them of her conversatlOn wIth the gnevor regardmg the reschedulIng. In fact, Ms. Faye Code had telephoned Dr Stolee's office to enqUIre as to why the gnevor's appomtment was rescheduled. Dr Kerr was also contacted. The Employer sent both Dr Kerr and Dr Stolee a wntten statement for SIgnature outlInmg Its understandmg of facts as told to Ms. Code Dr Sto1ee amended the document before sIgmng. Dr Kerr SIgned hIS statement unamended. In ItS wntten submISSIons, the Umon stated that the mformatIon solICIted from Drs. Kerr and Sto1ee was obtaIned by breachIng Mr Code's nght to pnvacy and confidentIalIty and that both doctors may be guilty of professlOnal mIsconduct. The College of PhYSICianS and Surgeons of Ontano IS currently InvestIgatmg Mr Code's complam regardmg Dr Stolee's conduct. Dr Kerr has retracted all oral and wntten comments made to the Employer, and the gnevor has reserved hIS nght to file a further College complam agamst Dr Kerr The prelunmary Issue, as charactenzed by the Umon, IS whether the mformatIon obtaIned from Drs. Kerr and Stolee IS pnvileged and/or confidentIal and therefore InadmIssible, and whether that renders the Employer's allegatlOns of mIsconduct VOId 5 ab m/no Accordmg to the Employer, the Issue IS whether Dr Sto1ee's knowledge of the gnevor's attempt to delay hIS mandatory medIcal assessment was pnvileged, and whether the Board should accept the eVIdence of thIS mformatIon gIven that It IS the foundation of management's reason for the dIsmIssal of the gnevor UNION SUBMISSIONS The U mon asserted that the gnevor has a nght to pnvacy over hIS own medIcal records. That nght has to be waIved by the gnevor before access can be obtamed by a thud party Once access IS properly obtamed, the mdIVIdual's nght of pnvacy still adheres to the records. That IS to say that the waIver IS always condItional and the nght of access IS always fettered. The nght to pnvacy IS found under the Freedom of InformatIOn and ProtectIOn of Pnvacy Act, R.S 0 1990, Chapter 31 (heremafter referred to as the "FOI") Section 39 states. Personal mformatIon shall only be collected by an mstItutIon duectly from the mdIVIdual to whom the mformatIon relates unless, (a) the mdIVIdual authorIZes another manner of collectIOn. It was the Umon's VIew that the Employer breached the prOVIsIon of the FOI when It solICIted pnvate mformatIOn about the gnevor He had not waIved hIS nght of pnvacy In the case of Dr Stolee, the gnevor had sIgned a hIgWy restnctIve release whIch dId not allow for the mformatIon at Issue to be dIsclosed. Accordmgly, the mformatIon was rrnproperly obtamed and the Employer cannot now rely on thIS mformatIon. Ms. Murdoch, for the U mon, argued that the Doctor - Patient pnvilege has long been 6 recognIZed as confidentIal m nature Failure to respect that pnvilege breaches the Regulations under the Health DIscIplInes Act Reg 548, sectlOn 29(23) The matter of schedulIng of appomtments falls mto the category of "professlOnal servIce" As such, any mformatlOn regardmg schedulIng cannot be dIsclosed wIthout the patient's consent. Drs. Kerr and Sto1ee breached then professlOnal responsibihties when they dIscussed the gnevor wIth the Employer The Umon referred to comments of Dubm J A. m a dIssent m Re Solicitor General of Canada et al v Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario [1981] 2 S C.R. 494 Members of the medIcal professlOn have a duty of confidentialIty wIth respect to then patients. They are under restramt not to volunteer mformatlOn respectlllg the condItion of then patients or any professlOnal semces performed by them wIthout then patient's consent. In the absence of such consent, members of the medIcal professlOn breach theIr duty If they dIsclose such lllformatlOn unless reqmred to do so by due process of law The gnevor had a reasonable expectation that the dISCUSSIon he had wIth Drs. Kerr and Stolee were pnvileged, accordlllg to the Umon. The matter of pnvilege IS not merely a dIspute over schedulIng mformation. The nature of the dISCUSSlOns was of a sensItive nature to both employee and Employer The gnevor's conduct arose from a need to protect hrmself from what the Umon suggests IS ongomg dIscrrmmatIOn. The gnevor expressed hIS concerns to the physIcIans and he felt that he dId so m confidence The expectatIOn of pnvacy IS crucIal to an effectIve doctor-patient relatIOnshIp Ms. Murdoch contended that because It IS the Employer that mtends to rely upon the mformatIOn obtamed from Drs. Kerr and Stolee, It bears the onus of showmg 7 comphance wIth the FOI. The Employer will be unable to show any authonzatlon from the gnevor for those dIScussIons. The hmlted authonzatlon gIven to Dr Stolee was not suffiCIent to allow for the mformatlon dIsclosed. It was suggested that the ~nevors pnvacy nghts WIth hIS doctors should be recogmzed by the Board m the same fashiOn as Sohcltor-chent pnvilege The Umon rehed upon Slavutych v. Baker et al [1976] 1 S C.R. 254, Re Shulman and College of Physicians & Surgeons of Ontario (1980), 20 O.R. (2d) 40; and Re Solicitor General of Canada et al v. Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario [1981] 2 S C.R. 494 EMPLOYER SUBMISSIONS Ms. Remson, for the Employer, submItted that the mformatlOn regardmg the scheduhng of an appomtment IS not "personal mformatlon" as consIdered ill SectiOn 2 of the FOI. SectiOn 2 defines personal mformatiOn as "recorded mformatIon about an Identifiable mdIVldual, mcluding (b) informatiOn relatmg to the educatlOn or the medIcal, psychlatnc, psychologIcal, cnmmal or employment hIStOry of the mdIVldual relatmg to finanCIal transactiOns m WhICh the mdIvIdual has been mvolved" In the event that the Board IS of the VIew that the scheduhng mformatiOn IS personal illformatlon, the Employer contended that It falls wIthm the exemptIon m s. 42( e) of the FOI. SectIon 42 (e) states that mformatIon may be dIsclosed "for the purpose of complymg WIth an Act of the LegIslature or an Act of Parhament or a treaty, agreement or arrangement thereunder" Section 52 of the Collective Agreement constitutes an agreement under thIS prOVIsIon. The Gnevance Settlement Board ill Re The Crown in Right of Ontario (Ministry of Community and Social Services) & 8 OPSEU (ChuanIPrommer) (April 7, 1992) unreported (Samuels), has recognIZed the FOI permIts dIsclosure of personal mformatlon when It IS for the purpose of complYlllg wIth the Collectlve Agreement. In Re The Crown in Right of Ontario (Ministry of Solicitor General- Correctional Services) & OPSEU (Stacey) (June 20, 1986) unreported (Knopt), the Board held that there was no lllvaSIOn of pnvacy when the Employer sohcIted lllformatIOn from a physIcIan regardlllg a modIfied job placement. The lllformatIon belllg requested was a clanficatIon of lllformatIOn preVIously provIded. It was urged by Ms. Remson that the mformatlon regardlllg the schedullllg of the gnevor's medIcal appomtment was merely clanficatIOn of why the appollltment had to be rescheduled. Regardlllg the Issue of medIcal pnvilege, It was asserted by the Employer that no such pnvilege eXIsts. The junsprudence IS clear that a doctor IS compellable m a court. The Employer rehed upon a number of authontIes mcludlllg Re D V National Society for the Prevention of Cruelty to Children [1977] 2 W.L.R. 201 (H.L.) Re Regina v R.S. (1985), 19 C.C.C. (3d) 115 (Ont. C.A.), J Sopmka, S Lederman and A. Bryant, "Doctor and PatIent" m The Law of EVIdence In Canada (Toronto Butterworths, 1992) (pages 712 - 718) Ms. Remson submItted that the Issue of whether Drs. Kerr or/and Stolee breached the gnevor's pnvacy thereby commIttmg profeSSIOnal mIsconduct IS a matter for the College of PhysIcIans and Surgeons to determme The Umon's objectIon ought not to be tolerated as a method of mtimIdatmg WItnesses to refuse to testIfy before the Board. The Employer argued that thIS Board IS expected to arnve at the truth of the matter and all relevant eVIdence should be heard to ensure that JustIce IS done If the 9 eVIdence IS determllled to be relevant, It should not be dIsallowed on the sole baSIS of confidentIahty The Supreme Court of Canada m Re Slavutych v. Baker (supra) allows courts to consIder the matter of pnvilege regardmg the admIsSIon of eVidence on a case by case basIs If the four cntena of the WIgmore test are met. Those cntena are - the commumcatIons must ongmate m a confidence that will not be dIsclosed - thIS element of confidentIahty must be essentIal to the full and satIsfactory mallltenance of the relatIonshIp between the partIes - the relatIon must be one whIch m the opimon of the commumty ought to be sedulously fostered - the lllJury that would mure to the relatIon by the dIsclosure of the commUnICatIons must be greater than the benefit thereby gamed by the correct dIsposal of htIgatIOn. Regardmg the first cntena, It was suggested by the Employer that ArtIcle 52 of the collectIve agreement mdlcates that the U mon agree that the scheduhng of the appomtment shall be done by the Employer and the employee. There IS also agreement that the Employer will send an assessment regardmg the work at Issue Further, It IS agreed that the report will be released to the gnevor and the Employer QuestIOns WhICh anse from scheduhng the assessment or obtammg results are part of the schedulmg process and therefore part ofthe mandatory medIcal process whIch was consensual. Further, there was never an explIcIt understandmg that confidentIalIty was guaranteed regardmg those dISCUSSIons. The Employer argued that confidentIahty IS not essentIal to the mamtenance of the doctor/patIent relatIOnshIp m thIS case Indeed, m Regina v R.S. (supra), It IS saId that even m cases of therapeutIc relatIonshIps, WhICh arguably requIre a greater level of confidentIalIty, there IS no eVIdence that patIents refram from treatment due to a 10 lack of pnvilege In the mstant matter, there was no "treatment" relatIOnshIp between the gnevor and Dr Stolee. The only contact that would occur was an exammatIon to determme fitness and report the findmgs. There was no mtentIon to contmue a relatIonshIp Regardlllg the thIrd cntena, Ms. Remson argued that pnvacy conSIderatIons cannot shIeld fraud or dIshonesty While It mIght be saId that the communIty expects doctors to be dIscrete about theIr patients, there IS no expectation that pnvacy extends to a dIshonest or unethIcal act. In the mstant matter, the gnevor told Dr Stolee that he wanted to put off the appomtment to get more dnVIng expenence m order to qualIfy for another pOSItIon outSIde hIS current department. The Employer submItted that the benefit of bemg allowed to present ItS case outweIghs any mJury caused to the gnevor The mformatIon about the schedulIng of the mandatory medIcal assessment was not a secret. Both partIes were entItled to the mformatIon. As the party InItially makmg the appomtment, the Employer was allowed to make enqUInes as to ItS reschedulIng. When the Employer sought mformatIon from the gnevor about the reschedulIng, he mdIcated that he dId not know why It was changed. The Employer then sought to find out why It was rescheduled and m domg so, dIscovered that the gnevor had been dIshonest. The Employer should not be foreclosed from callIng that eVIdence Ms. Remson asserted that the applIcatIOn of SectIon 24 of the Charter of RIghts and Freedoms m vanous cnmmal offenses prOVIdes helpful mSIght. One factor to conSIder IS whether eVIdence was available m any event. In Re Collins v. The Queen (1987), 33 C.C.C. (3d) 1 S C.C., at page 13, Lamer J stated ,"real eVIdence eXIsted Irrespective of the VIolatIOn of the Charter and ItS use does not render the tnal --~ 11 unfaIr" If Dr Stolee had mentioned the facts regardmg the reschedulIng of the appomtment m her report, there would have been no Issue of pnvacy or pnvilege The Employer also provIded the Board wIth Re The Queen v. Wray [1971] S C.R. 272, wherem It was stated at page 293 the exerCIse of a dIscretIon by the tnal Judge anses only If the admIssIon of the eVidence would operate unfaIrly The allowance of admIssible eVIdence relevant to the Issue before the Court and of substantial probatIve value may operate unfortunately for the accused, but not unfaIrly It IS only the allowance of eVidence gravely prejUdICIal to the accused, the madmIssibilIty of WhICh IS tenuous, and whose probatIve force m relation to the mam Issue before the Court IS tnflmg, WhIch can be saId to operate unfaIrly The GrIevance Settlement Board IS charged wIth determmmg whether the gnevor was dIscharged wIthout Just cause It IS necessary for the Employer to be allowed to present the eVIdence WhICh led It to Its deCISIon. It must be allowed as It goes not only to the truth of the gnevor's conduct but also to the reasons for the dISCIplIne DECISION The first Issue for thIS Board to address IS whether the mformatIon the Employer mtends to rely upon obtamed from dIScussIons wIth Drs. Sto1ee and Kerr IS confidential and/or pnvate In my VIew, the mformatIOn IS not pnvate accordmg to sectIon 2 of the FOI. Nothmg m the facts would lead me to find that the eVidence IS confidential as between doctor and patIent. Regardmg the eVidence of Dr Stolee, the entIre dISCUSSIon at Issue took place pnor to her even bemg mformed by the parties that she was charged WIth the responsibilIty of a medIcal assessment. The conversatIon was, m total, about the tImmg of the 12 appomtment. The dIScussIon was not pre-arranged. The gnevor went to Dr Stolee's office wIthout an appomtment for the purpose of dlscussmg the schedulIng of hIS medIcal assessment. The U mon submItted that the dIScussIon falls mto the rubnc of "profeSSIOnal sefVIces" I must dIsagree There was no profeSSIOnal servIce prOVIded. There was a dIscuSSIOn about when profeSSIOnal sefVIces would be rendered. Havmg decIded that the mformatIon at Issue IS not confidential or prIvate, I do not mtend to deal wIth the matter of whether the "AuthonzatIon and Release" form SIgned by the gnevor was sufficIently restnctIve to deny the mformatIon to the Employer Nor will I deal wIth the Issue of whether the physIcIans are guilty of profeSSIOnal mIsconduct. That IS a matter for the College of PhysIcIans and Surgeons. However, m the event that I am wrong and the mformatIon IS confidentIal, I would allow It to be admItted m any event. I agree wIth the Employer's submISSIons that the eVidence meets the cntena establIshed in the Wigmore test. The U mon submItted that thIS Issue was SImilar to the Re Slavutych case (supra) I dIsagree In that case, the gnevor was a UnIVersIty professor who was asked by hIS Employer to draft a "tenure form sheet" regardmg another employee The document Itself was clearly labelled "confidentIal" and there were dIrectIOns that It should be forwarded m a "sealed envelope marked "Confidential" Further, the gnevor was told that hIS document would be kept m the stnctest confidence The gnevor m that case was asked for mformatIon, told that It would be confidentIal and then dISCIplIned as a result of the report. Those facts are SIgnIficantly dIfferent from the matter at hand. FIrstly, there was no speCIfic dISCUSSIon about confidentIahty between the gnevor and eIther phYSICian. The UnIon argued that confidentIahtywas not dIscussed because the gnevor reasonably thought that any dISCUSSIon WIth phYSICIans were pnvileged. It IS dIfficult to understand why the gnevor would arnve at that VIew gIVen the subject ~ 13 matter of the dIScussIon. DIScussIon regardmg the schedulIng of an appomtment IS part of the admInIstratIve process of the medIcal assessment. It IS not a component of the actual medIcal reVIew nor does It anse out of the assessment. . Secondly, the dIScussIon was not mltIated by the Employer The partIes agreed to a medIcal assessment and agreed that the Employer would establIsh the appomtment. The gnevor could have slffiply awaIted notIficatIOn of the appomtment. Instead, he went to Dr Stolee's office to dISCUSS scheduhng. Further, he went to Dr Kerr's office and asked hIm to mtervene to have the appomtment rescheduled. The Employer learned of the dISCUSSIons subsequent to the reschedulmg. Further, the Employer first sought the mformatIon about reschedulmg from the gnevor, who claImed he dId not know the reasons for the change Accordmgly, the eVidence will be admItted. I will leave It to the partIes to argue m theIr final submIssIons the matter of what weIght, If any, should be afforded that eVIdence The partIes also raIsed the an Issue of alleged dISCrImmatIon. However, the UnIon dId not forward submISSIons regardmg thIS Issue. Accordmgly, we will deal wIth thIS matter on the next day of heaTIng or m advance of the heanng If that IS the preference of the partIes. Dated thIS Z9th day of ~gust, 1997 / i ~ ~ I j"?f -I - I' ) ( , ./ I 1 II I /1.'.-> I L Ie ivll11- /ff FelICIty D Bnggs V Ice Chau