HomeMy WebLinkAbout2017-0553.Finn.21-05-10 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
HEARING By way of written submissions completed
on April 30, 2021
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DECISION
[1] The Board is seized with eight grievances filed by Mr. Fred Finn (“grievor”), one
dated May 7, 2017 relating to a letter of discipline, and the others dated June 30,
2017 alleging failure to accommodate, discrimination and harassment. Following a
preliminary motion by the employer, by decision dated March 11, 2019, the Board
ruled that a number of the allegations in the June 30, 2017 grievances were
untimely, and therefore inarbitrable.
[2] Following the Board’s decision the parties exchanged particulars and disclosure
relating to issues that remained before the Board. The union’s disclosure included
the grievor’s medical file, with redactions of information which the union considered
to be not relevant to the remaining issues. The employer was content at the time to
accept the disclosure with the redactions, but reserved the right to object to
particular redactions.
[3] Thus, there was no dispute about the extent of the disclosure per se. However,
there was a dispute about the extent to which employer counsel may share
information in the grievor’s medical file. By a second decision dated March 26, 2019,
the Board disposed of that dispute.
[4] The hearing on the merit of the grievances commenced on December 18, 2019.
During the opening statement employer counsel stated that the issue before the
Board was now limited to the employer’s alleged failure to accommodate the
grievor’s restrictions, discrimination, and harassment in the period January 2016 to
February 2018, and that any remedial orders would also be limited to that window
of time. Union counsel agreed.
[5] The union’s second witness was Dr. Marilyn Robertson, who at the time had been
the grievor’s family physician for 28 years. The hearing day February 3, 2021 ended
part-way into her testimony in chief. Following that day, the employer sought a
conference call during which counsel argued that the Board should order that the
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union disclose to the employer Dr. Robertson’s complete medical file on the grievor
going back to 2012, when the grievor suffered a back injury. The union objected.
This decision relates to that dispute.
[6] The employer points out that Dr. Robertson had testified that the grievor’s back pain
and related symptoms experienced in the period covered by the grievances were a
result of a recurrence of a pre-existing injury. Employer counsel relied on five
specific questions posed by union counsel to the doctor and her answers, to point
out that when she made recommendations in the 2016-2018 period Dr. Robertson
had access to, and had reviewed, the grievor’s medical file going back to 2012. It
was submitted that the employer has the right to review that same information in the
medical file.
[7] Union counsel pointed out that the grievor’s WSIB file from 2012 and the 2013
Ergonomic Assessment Report had been disclosed to the employer. These would
establish that the grievor had chronic back issues following the 2012 injury. Those
documents, together with the records from the doctor’s medical file in the 2016-2018
period have been disclosed. It was submitted that to order production of the entire
medical file gong back to 2012 would be extremely intrusive in the circumstances.
[8] Referring to the need to ensure confidentiality of medical information, in its decision
dated March 26, 2019, at para. 5 the Board wrote, “… this requires a balancing of
the grievor’s right to privacy of medical information and the need to avoid undue
prejudice to the employer’s ability to defend the grievances”. Both counsel agreed
that this principle equally applies to the present disclosure request.
[9] On a review of Dr. Robertson’s testimony to date, it is clear that she had access to
the grievor’s entire medical file. She testified in some of her responses that she
reviewed the file in the pre-2016 period. In answer to some other questions she
said that she “probably” did. What this indicates is that the doctor did not ignore the
grievor’s medical history. This should not come as a surprise to anyone – that a
doctor would consider the history and context of a patient’s medical information on
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file in diagnosing treating and making recommendations. In balancing the interests,
I do not find that evidence that the doctor considered the grievor’s medical history
from 2012 justifies the disclosure of the grievor’s entire medical file. This is so even
acknowledging that the information is about a physical back use, which is not as
sensitive or private as information about a more critical disability or mental health
issue as employer counsel argued. The only specific evidence I find about the
information the doctor reviewed in the grievor’s file was the x-ray in 2012. Based
on that review, she opined that the grievor’s symptoms in 2016 were “probably” a
re-injury. The union had indicated its preparedness to disclose that x-ray.
[10] In relation to the allegation of failure to accommodation, the issue is about what
restrictions the grievor presented in the 2016-2018 period and what action the
employer took or failed to take. The employer’s ability to cross-examine Dr.
Robertson as to the basis of medical restrictions she placed on the grievor, and her
recommendations, is not prejudiced in the absence of the grievor’s complete
medical file, as would justify its disclosure. I conclude that in all of the
circumstances, and having regards to the balancing of interests required, the broad
disclosure sought by the employer is not justified and is denied. The union is
directed to disclose the 2012 x-ray. This disclosure of course is also subject to the
conditions ordered and/or agreed to between the parties, designed to maintain
confidentiality.
[11] The Board remains seized.
Dated at Toronto, Ontario this 10th day of May, 2021.
“Nimal Dissanayake”
______________________
Nimal Dissanayake, Arbitrator