HomeMy WebLinkAbout2017-0553.Finn.19-03-26 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2017-0553; 2017-1286; 2017-1287; 2017-1288; 2017-1289; 2017-1290; 2017-1312; 2017-1313
UNION# 2017-0201-0006; 2017-0201-0009; 2017-0201-0010; 2017-0201-0013; 2017-0201-0014;
2017-0201-0015; 2017-0201-0011; 2017-0201-0012
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Finn) Union
- and -
The Crown in Right of Ontario
(Ministry of Agriculture, Food and Rural Affairs) Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Esther Song
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Caroline Cohen
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
TELECONFERENCE March 21, 2019
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DECISION
[1] The Board is seized with a number of grievances filed by the grievor, Mr. Fred
Finn, alleging failure to accommodate.
[2] This decision relates to a dispute relating to the extent of disclosure of the grievor’s
medical file. The medical file has been disclosed to the Employment Relations
Advisor and the Disability Accommodation Specialist with redactions by the union
of content which it deems not relevant to the issues in these grievances.
[3] The union is opposed to employer counsel sharing any content of the file with her
instructing client (a senior manager) and an employer witness (a manager). The
union takes the position that if disclosure of specific information to either individual
becomes necessary, the employer should be required to obtain consent from the
grievor, and if the grievor objects, seek an order for disclosure from the Board.
[4] Employer counsel advised the Board that the redacted version of the file will be
accepted at this time. However, she retained the right to object to particular
redactions if deemed necessary. Counsel argued that the restrictions sought by
the union would significantly prejudice the employer’s ability to prepare and
defend against the allegations in the grievances. Counsel noted that the medical
file relates to a physical (back) issue, which is not as sensitive information as
compared to conditions such as mental or psychiatric conditions or other serious
illnesses.
[5] The parties have agreed to a number of conditions on the manner of use of the
medical information designed to ensure confidentiality. They agree that at this
time it is not necessary to set out those conditions in a Board order. The only
issue for the Board is whether employer counsel may share the documents or
information in the medical file with the instructing client and the witness.
Determination of this issue required a balancing of the grievor’s right to privacy of
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medical information and the need to avoid undue prejudice to the employer’s
ability to defend the grievances.
[6] There is no dispute that the contents of the medical file are at least arguably
relevant. I am of the view that the union’s proposal that the employer obtain the
grievor’s consent each time employer counsel needs to share a document or
information from the file in order to obtain instructions or prepare the witness is
not workable. It will lead to significant inefficiency and delay. This case is about
accommodation of a disability and the information relates to that disability.
Therefore it is very probable that employer counsel would need to share that
information in order to obtain appropriate instructions and prepare the employer’s
case. The conditions agreed to between the parties, supplemented by limitations
on sharing in the order that follows will ensure that the information will be shared
only to the extent necessary for purposes of litigation. That would be the proper
balance in the particular circumstances of this case.
[7] Therefore, it is ordered as follows:
(a) Employer counsel may share documents in the grievor’s medical file and/or
information in the documents with the instructing client for the purposes of
obtaining instructions and/or preparation for the hearing.
(b) Employer counsel may share documents in the grievor’s medical file and/or
information in the documents with the witness to the extent necessary for
preparing witness testimony.
(c) The instructing client and the witness referred to in (a) and (b) above may not
share any document in the grievor’s medical file or information therein with anyone
else.
(d) Employer counsel may not share any documents in the grievor’s medical file
or information therein with anyone other than the instructing client and the witness,
without consent from the union or an order from the Board.
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[8] The Board remains seized with the instant grievances.
Dated at Toronto, Ontario this 26th day of March, 2019.
“Nimal Dissanayake”
______________________
Nimal Dissanayake, Arbitrator