Ontario Public Service Employees Union (Latimer) v. The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), 2000 CanLII 20465

GSB # 0131/95, 0132/95, 2132/95

OPSEU # 95A500, 95A501, 96C063

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Latimer)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of the Solicitor General and Correctional Services)

Employer

BEFORE Susan D. Kaufman Vice Chair

FOR THE Nelson Roland

GRIEVOR Barrister & Solicitor

FOR THE Ajamu Boardi

EMPLOYER Staff Relations Officer Ministry of the Solicitor General and Correctional Servicescs

HEARING January 17, 18, 19, 31, 2000

FIFTH INTERIM RULING

In December, 1999, shortly after a brief hearing of argument which resulted in the Fourth Interim Ruling in this case, the Union requested that a teleconference call take place in order for it to present a motion for interim relief for the grievor. The employer agreed that the matter be handled by conference call. On December 23, 1999 a teleconference call took place. The participants were Mr. Roland as Counsel for the Union, and the grievor Noella Latimer, and Larry McGregor and Peter Slee for OPSEU, and Mr. Boardi for the Employer and Supt. Roger Chenard, and me, as Vice-Chair. The grievor had been absent from work since May 9, 1999. She had received short term sickness plan benefits thereafter, which were exhausted, for the purpose of this motion for interim relief only, on or about November 7, 1999. There is some outstanding question as to the exact date. She had applied for Long Term Income Protection (L.T.I.P.) benefits but was not yet in receipt of them.

The grievor’s counsel requested the following relief on December 23, 1999:

---an interim order directing the employer to continue to pay the grievor short term sickness plan benefits and directing that if the grievor receives L.T.I.P. benefits while receiving short term sickness plan benefits from the employer, the grievor will be required to reimburse the employer for any overpayment of benefits which may result from her receipt of both benefits;

---a ruling that the employer’s request for a mandatory medical is not appropriate as the grievor is off work and applying for L.T.I.P.;

---alternatively, if the grievor is directed to attend the mandatory medical examination requested by the employer, an interim order directing the employer to extend her short term sickness plan benefits until the date that the medical report resulting from the mandatory medical examination is received;

---alternatively, an interim order directing the employer to grant the grievor paid leave of absence.

It was not in dispute that in 1997, prior to the commencement of the hearing of the evidence pertaining to the grievances now before me, the grievor had applied for L.T.I.P. benefits and that on or about August 6, 1997, the employer had agreed to place her on a leave of absence with pay for a period of one month, subject to certain conditions, (see Consent Order dated August 6, 1997, in the First Interim Ruling dated February 3, 1998), pending the determination of her L.T.I.P. application. The details of any further financial arrangements to assist the grievor financially pending the determination of her L.T.I.P. entitlement in 1997 are not part of the evidence before me. The grievor returned to work around the beginning of December, 1997, having been off work for medical reasons since about April 4, 1997.

The employer resisted the Union’s request for interim relief. Counsel for the Union stated that the Union’s information was that the previous occasion in which the grievor applied for L.T.I.P., the employer submitted that she was not disabled. No documentary evidence for this statement was submitted. However, as Supt. Chenard replied “we haven’t done that this time” to Union Counsel’s statement, I find it reasonable to infer that Union Counsel’s statement regarding the circumstances which formed the background to the employer’s agreement to place the grievor on paid leave of absence in 1997 was correct. Supt. Chenard specifically denied that the employer had opposed the grievor’s current application for L.T.I.P.

With respect to the request for a ruling that the request for a mandatory medical examination was not appropriate, the Employer’s representative said that he was surprised by the Union’s request and that he did not see the connection between the Union’s submissions and the relief he was requesting.

The Union implied that the grievor had not yet received her L.T.I.P. benefits and was without an income as a result of some action or default on the part of the employer. These suggestions were not supported by any documentation and were resisted by the Employer. The December 23, 1999 teleconference call was adjourned when the parties were unable to indicate the status of the grievor’s application for L.T.I.P. benefits and the reasons for any delay in its determination and why the grievor was without income from other sources to which she may have had some entitlement (Employment Insurance and Canada Pension Plan disability benefits), and when Union Counsel advised that he had to catch a plane. The parties agreed to a further teleconference call on these matters early in the New Year.

A further teleconference call took place on January 5, 2000 with the same participants. It can be characterized as in part a fact-finding effort, with argument. The parties had forwarded copies of some documents and correspondence to me and to one another regarding the request for a Mandatory Medical examination and the LTIP application by January 5, 2000, and affidavits by January 31, 2000, which, together with their unsworn statements and the submissions of their representatives on December 23, 1999, and January 5 and 31, 2000, enable me to conclude the following as a factual background, which I have separated into two issues, the grievor’s request for an interim order that the employer provide a form of income continuance subsequent to the cessation of her short term sick benefits in November, 1999 and the request for a ruling regarding the Mandatory Medical examination sought by the employer.

A) The Request for Income Continuance

On September 27, 1999 the employer wrote a letter addressed to the grievor saying that the Ministry was “applying for Long Term Income Protection Plan benefits on [her] behalf”. The letter instructed her to complete the Claimant’s Statement Form and to have the Attending Physician’s Statement form completed by her doctor. It said that a 1999 Personal Tax Credit Return was enclosed and that it was to be completed and forwarded to the Insurance Company. It contained the following paragraph:

Please return with the above forms, a copy of your Canada Pension Plan

“Award” or “Decline” letter. If you have not yet received this letter, send

in the above forms and attach a note that you will send the Canada Pension Plan letter when received. If you have not yet contacted the Canada Pension Plan office with regard to your eligibility for a disability allowance, you should do so. It is located at 319 Lasalle Blvd. (Taxation Bldg)

The letter advised the grievor that she had the option, applying for LTIP benefits, of having the carrier withhold the estimated CPP portion and paying her the balance of the LTIP entitlement, or receiving the full 66 2/3% salary from the carrier and repaying the CPP portion when the CPP award has been approved. The letter requested her to complete an attached “CPP agreement”. The letter was signed by Karen East, Office Manager.

The grievor said that she did not receive the September 27, 1999 letter. The letter was prepared by Ms. East. Ms. East did not provide an affidavit. The affidavit of Sherry Loiselle, Personnel Clerk, sworn January 28, 2000, speaks, on information and belief, to Ms. East having signed a letter dated September 27, 1999 addressed to Ms. Latimer. It does not speak directly to the letter having been sent or the manner in which it was sent. I am therefore unable to ascertain with any certainty, on the basis of the grievor’s statements made on January 5, 2000 and on the statements in the affidavit of Sherry Loiselle, that the September 27, 1999 letter, which was clearly prepared by Ms. East, was sent to or received by the grievor.

Supt. Chenard advised that in the ordinary case, the employer can start an LTIP application in the fifth month of absence, and the claim will be honoured without a lapse in benefits coverage. It was not in dispute that the Union does not have the necessary forms to commence an LTIP application. He advised that if an employee wants to commence at LTIP application earlier than the fifth month, he or she can request the forms from the employer.

An Employer’s Statement appears to have been prepared for Manulife Financial. E. Pedron’s name is indicated as the “authorized official” certifying that Ms. Latimer was “insured in accordance with the above particulars”. The date of September 30, 1999 appears on the Employer’s Statement.

A letter dated October 5, 1999 from Jane Culp, Claims Adjudicator, Toronto Group Disability Claims, Manulife Financial to Mr. Pedron, marked “cc. Ms. Noella Latimer” acknowledges receipt of the Employer’s Statement and states:

This claim has been pended awaiting receipt of the Attending Physician’s Statement and Claimant’s Statement.

The October 5, 1999 letter also requests the employer to confirm whether the LTIP premium payments continue to be maintained, and states that they should be maintained until Manulife Financial renders a decision, and if premium payments have ceased, requests the employer to provide the last date of payment and reasons for cessation of premium payments.

The statements, submissions and affidavits did not establish whether the employer responded to the request for information regarding the maintenance of the LTIP premiums at any time. There is, however, insufficient information before me to conclude that this possible lapse interfered with the determination of the grievor’s entitlement to LTIP benefits.

A letter dated October 22, 1999 from Jane Culp, Claims Adjudicator, Toronto Group Disability Claims, Manulife Financial to Mr. Pedron, for the employer, marked “cc. Ms. Noella Latimer” advised Mr. Pedron that she wrote to him on October 5, 1999 requesting additional information necessary for the continued handling of the grievor’s LTIP claim and has not received a response. A note to Ms. Latimer appears at the bottom of this letter beside “cc. Ms. Noella Latimer”

Please submit the Attending Physician’s Statement and Claimant’s Statement as soon as possible.

Sherry Loiselle stated in her affidavit that she understood from her telephone conversation with Ms. Culp following receipt of the October 22, 1999 letter that Manulife Financial did not require any further information from the employer, and that Manulife was awaiting further information from Ms. Latimer.

The grievor did not indicate that she had not received the letters from Manulife dated October 5 and 22, 1999. For the purposes of this interim proceeding, I therefore conclude that she probably received them.

On November 9, 1999, Ms. Culp for Manulife wrote to Mr. Pedron, for the employer, “cc. Ms. Noella Latimer” acknowledging “that the claim submitted on behalf of the above-named insured was received in our office on November 8, 1999”. Ms. Culp’s letter stated that the claim “has been pended awaiting our review of the documentation provided. Should any additional medical information be required you will be notified.” Ms. Culp’s letter again requested the employer, this time in boldface type, to confirm whether the LTIP premium payments continue to be maintained, and that they should be maintained until Manulife Financial renders a decision, and if premium payments have ceased, please provide the last date of payment and reasons for cessation of premium payments.

No statements or submissions were made, orally or by affidavit, with respect to Manulife’s request for information on October 22, 1999 regarding the maintenance of the LTIP premium payments.

The grievor did not indicate that she had not received the November 9, 1999 letter from Manulife. For the purposes of this interim proceeding, I therefore conclude that she probably received it.

On November 10, 1999, Ms. Loiselle, then Personnel Clerk in training at the Sudbury Jail under the supervision of Ms. Sandy Anderson, wrote to Ms. Latimer on behalf of the employer advising her that as of October 18, 1999 she “will be receiving 75% pay” and effective November 7, 1999, her short-term sick credits “are exhausted” and she “will be taken off the payroll”. The letter also stated “If necessary, you may apply for employment insurance benefits.” Ms. Loiselle enclosed an Option to Make Pension Contributions While on Leave of Absence Without Pay and asked her to indicate which benefits she wished to keep in force. Paragraph 14 of Ms. Loiselle’s affidavit states that she also enclosed with the November 10, 1999 letter a Leave of Absence request/authorization which was apparently prepared for Ms. Latimer to sign.

In paragraph 15 of her affidavit, Ms. Loiselle states that “on or about November 10, 1999” she had a telephone conversation with the grievor and informed her that she was going to send the November 10, 1999 letter that she had written and “told her what the letter said”. In paragraph 16 of her affidavit, Ms. Loiselle stated that she “mailed” Ms. Latimer her letter of November 10, 1999 “on or about November 16, 1999” and also states:

On or about November 16, 1999, I made a notation on the top right corner

of a copy of my November 10, 1999 letter. I made the notation to remind myself when I had sent Ms. Latimer my November 10, 1999 letter.

However, the handwritten note on the November 10, 1999 letter from Ms. Loiselle states “sent by Purolator Nov. 16/99. Bill lading 1582 928 8099”. On January 5, 2000, the grievor stated that she had never received it, and her counsel said that he had not seen the November 10, 1997 letter from Ms. Loiselle until the employer produced it recently. He and the grievor had been in attendance at the continuation of the hearing of the grievances before me in Sudbury on November 17 and 18, 1999, he pointed out. Any attempt at delivery on those days would have been difficult, and he pointed out that the employer had previously assumed that deliveries had occurred which had not been the case. The Union’s information was that Purolator had returned the letter as undeliverable. He submitted that the employer sent it on a day when it knew the employee was at a hearing. There was no evidence to support the latter two allegations.

A signed Bill of Lading with the signature of the recipient was not produced. Some question remains, as a result of the fact-finding exercise, notwithstanding Ms. Loiselle’s affidavit, as to whether the delivery of the November 10, 1999 letter had been effected. I am unable to conclude with any certainty on the information before me that Ms. Latimer received the letter from Ms. Loiselle dated November 10, 1999.

On or about November 16, 1999, Ms. Culp for Manulife wrote to Mr. Pedron for the employer, cc. Ms. Noella Latimer and stated

We have completed our review of the documentation provided and have

determined that, unfortunately, the present medical information is insufficient to enable us to determine Ms. Latimer’s eligibility for total disability benefits.

We have, therefore, written directly to the insured’s physician for additional medical information in order to determine the extent of Ms. Latimer’s disability.

We will notify you of our decision as soon as we have received and assessed the requested information.

The “cc.” to Ms. Latimer in the November 16, 1999 asked her to “complete and return the enclosed Claimant’s Questionnaire to this office. Kindly complete and forward consents to respective physicians.”

On January 5, 2000, the grievor said “with the November 16 letter they sent me releases for two other doctors” and said that the Claimant’s Questionnaire and two releases “came in a package between November 16 and 24, 1999” and that she returned the Claimant’s Questionnaire shortly after December 6, 1999.

Ms. Latimer stated on January 5, 2000 that she provided a release to one doctor on November 25, 1999, a release to a second doctor on December 6, 1999, and a release to a third doctor on December 10, 1999. She also said that she understood that as of January 4, 2000, Manulife had not yet received a report from Dr. Morelli, although she had provided a release to him. She said she had seen Dr. Morelli on December 10, 1999. She said that she believed she had applied for C.P.P. Disability benefits at the beginning of October and that on January 4, 2000 she had received a letter requesting further information regarding her application for those benefits. She said that she had not applied for Employment Insurance benefits at that point, January 5, 2000, “because it was two weeks for LTIP”. I conclude from her affidavit that she had applied for Employment Insurance benefits by January 17, 2000, the date of her Affidavit.

According to paragraphs 10 and 11 of Ms. Loiselle’s affidavit, the grievor received a paycheque on November 25, 1999 for the period from November 1 to 14, 1999 and she received more money for the period October 18 to November 14, 1999 than she was entitled to under the collective agreement. No documentation was presented to support this statement and I draw no conclusions as to whether the grievor was paid appropriately or inappropriately for this period.

On January 5, 2000, Mr. Chenard stated that the employer was not a banking institution, that the grievor was seeking differential treatment as compared to the manner in which other employees experiencing a lapse between short term and long term coverage were treated, and that assisting the grievor would give rise to other employees bringing similar claims to the employer. He said he did not have the authority to agree to any payment of the grievor pending the outcome of her LTIP claim.

On or about January 24, 2000, Ms. Rhonda Fraser, Disability Adjudicator, on behalf of Manulife Financial, informed the employer by letter “in accordance with the terms and conditions of this policy, no benefits are payable to the insured” and that the grievor could submit a written request for reconsideration of the claim along with any documentation she may wish to have Manulife include in the review.

B) The Request for a Mandatory Medical examination:

From the same sources, I am able to conclude the following regarding the request that the grievor participate in a Mandatory Medical examination.

The grievor was on leave of absence for health reasons, and receiving short term sickness benefits under Art. 44, following an unfortunate and regrettable incident which occurred on May 9, 1999, in which she feels she had been harassed by a member of management. There is no grievance before me concerning that incident. She believes that the conduct to which she was subjected on May 9, 1999 caused her condition to worsen and caused her to become extremely ill. That incident arose while a hearing before me into a number of grievances brought by the grievor alleging that she was being harassed and discriminated against by the employer was ongoing. Her physician, Dr. P., filled out a Request for Employee Health Information Form dated May 31, 1999 in which he indicated that there are “medical/health conditions which account for absences from the workplace or would affect the employee’s ability to perform his/her duties” and, in the space in which he was asked to describe the employee’s specific work-related limitations and/or restrictions, he indicated that she would be off work for 2 - 3 months “for medical reasons which are confidential”.

The employer has agreed that it is not entitled to know the medical reason for the grievor’s inability to work, and that the grievor has the right that the reason remain private and confidential. It has not asked for a diagnosis or for the identification of any medication which may be prescribed for the grievor.

The May 31, 1999 Employee Health Information Form states that the duration of limitation(s) and/or restrictions is temporary and that the expected duration is “unknown at this time”. The Form asks whether further absences from work are anticipated at this time and Dr. P. responded “yes”. In the space provided for Dr. P. to “specify” regarding further absences from work, the words “further instigation” were entered. Dr. P. stated the date of his next assessment is “one month”.

In a letter dated August 31, 1999, Supt. Chenard wrote the grievor and, among other statements, indicated that the Request for Employee Health Information Form provided dated May 31, 1999 by her physician “does not provide clarity and is somewhat contradictory to previously received information” and “does not satisfy the requirements of the Ministry” and stated that the grievor was required, “in accordance with Article 44.9 of the Collective Agreement” to “be examined by a physician at the expense of the Ministry in order to obtain a prognosis of your present and future status as a Correctional Officer and the specifics of any accommodation required”. He offered the names of three physicians who had agreed to examine her and asked her to choose one, and enclosed a Medical Release Form for her to sign and return, along with the name of the physician she had chosen, by September 17, 1999. The letter indicated that once he had received the results of the examination, he would hold a meeting with her to develop a return-to-work plan. One of the three physicians offered was in Scarborough, another in Toronto, and the other was in North Bay. The grievor had been examined for a Mandatory Medical in 1997 by Dr. McMullen, who is located in Sudbury, Ontario, on mutual consent of the parties. The letter was silent with respect to how travel arrangements would be handled. No information was provided by statement, submission or affidavit regarding the proposed physicians.

By letter dated September 23, 1999, the grievor responded to Supt. Chenard’s letter. She expressed her view of the treatment by the employer of confidential medical information it had received and of her treatment as an employee. She alleged “the misuse and abuse of this medical information has contributed greatly to deteriorate my emotional and physical well-being.” She also agreed to be examined by a physician in accordance with Art. 44.9. She stipulated that she would deliver to Mr. Chenard the physician’s “findings of the prognosis of my present and future status also any specifics of my accommodations required.” She offered the names of three physicians, including Dr. P., who had completed the May 31, 1999 Request for Employee Health Information Form which Mr. Chenard had indicated did not satisfy the requirements of the Ministry, and the names of two others, including Dr. McMullen. At this point, the grievor was still in receipt of short term sickness plan benefits under Art. 44.

For purposes of this proceeding for interim relief only, the grievor’s entitlement to short-term disability benefits ended around November 7, 1999. On the information and documentation provided, I make no determination as to the exact date upon which her entitlement to those benefits ended.

The employer responded to the grievor’s agreement to attend a Mandatory Medical examination on December 7, 1999, when Deputy Supt. Richard Smith wrote a letter to the grievor and indicated that the employer was agreeable to the grievor being examined by Dr. McMullen. He advised in the letter that an appointment had been arranged for her to see Dr. McMullen on December 21, 1999 at 2:30 p.m. and advised that a copy of the Functional Abilities Form has been forwarded to Dr. McMullen along with printed information pertaining to the duties and responsibilities of a Correctional Officer at the Sudbury Jail and enclosed Release forms for her to sign and give to Dr. McMullen. Mr. Smith sent a letter to Dr. McMullen on December 7, 1999 requesting a Functional Abilities Assessment “to clarify the individual’s medical situation with respect to accommodation needs and the length or permanency of the modified work required”. It indicated “All the described duties can be modified in order to accommodate the worker provided that physical restrictions are indicated and specific.” It requested him to forward a report of the medical examination to Senior Medical Consultant Dr. Paul Humphries and the grievor’s personal physician.

Supt. Chenard advised that the employer had not responded to the grievor’s letter until December 7, 1999 because it had been occupied with other matters. He said that the employer wanted the grievor to return to work and wanted to know what accommodations were necessary to effect that.

The grievor did not attend the December 21, 1999 appointment with Dr. McMullen. I gather that she did not attend it in the mistaken belief that the issue of whether she was required to do so was determined in the course of a proceeding before me on December 8, 1999. As well, OPSEU Staff Representative Peter Slee wrote to Deputy Superintendent Smith on December 13, 1999, with a copy to Ms. Latimer:

Apparently the nature of Ms. Latimer’s medical information to the employer is currently under review by the Grievance Settlement Board. Once the Board has determined what information should be provided, Ms. Latimer will proceed with required medical.

I gather that Ms. Latimer was guided in part by Mr. Slee’s letter and believed, erroneously, that the Board was asked to determine “what information should be provided”. I gather, as well, that Ms. Latimer did not attend the December 21, 1999 appointment in the belief, as argued by her Counsel on December 23 and in January, 2000, that as she was no longer in receipt of short term sickness benefits when the employer selected Dr. McMullen and advised her, and because she and perhaps her physician are of the view that she is unable to work for the Ministry in any institution or capacity, that the request for the Mandatory Medical was “out of time” and therefore “not appropriate” under Art. 44.9, and that she was not required to attend a Mandatory Medical examination in all the circumstances. I understand from submissions that she also objected to the employer having contacted Dr. McMullen and having made the appointment. The basis of this objection was not made clear.

The relations between the parties were further strained, I gather, when on December 13, 1999, the employer denied Ms. Latimer’s grievance, OPSEU 99-617-200,

which is not one of the grievances before me, following a second stage meeting which took place between the employer and OPSEU Representative Peter Slee (the grievor did not attend that meeting). I note this as background information and make no finding with respect to the determination at the second stage of that grievance.

On January 5, 2000, Supt. Chenard stated that he agreed to “suspend” the request for a Mandatory Medical examination “pending the outcome of the grievor’s LTIP application.” He also stated, in reference to the employer having provided some interim financial assistance to the grievor while she was awaiting the determination of her LTIP claim in 1997, that the employer had provided financial assistance “the last time” “because” the grievor had agreed to attend a Mandatory Medical examination. On the information provided, I make no finding as to whether this was one of the reason(s) behind the employer having agreed to provide financial assistance to the grievor in 1997 while awaiting the determination of her LTIP claim in that year.

On January 5, 2000, neither party responded to the suggestion that the possibility could be explored that the grievor might at this time be medically able to work for the Ministry at another institution such as Cecil Facer Youth Centre in Sudbury, if she was unable for medical reasons to work at the Sudbury Jail.

The Union submitted that an interim order should be issued, directing the employer to place the grievor on paid leave of absence from November 7, 1999 to March 13, 2000, subject to the proviso that the grievor is to repay the employer any benefits she receives.

The employer submitted that no order requiring the employer to provide the grievor with any income should be made in all the circumstances, and made submissions with respect to when the grievor should repay the employer, in the event that such an order is made. The union submitted that the time for repayment should be determined at the outcome of the grievances.

The employer argued that the Board did not have jurisdiction to make the interim order requested, that there was no grievance on the record before the Board upon which to base such an interim order, that the request for interim relief had been put forward “in isolation” and was based on the employer’s processing of the LTIP claim and when the request for the Mandatory Medical examination had been made. It was submitted that the employer has not done anything in this case deserving an order of this nature, and requiring it to act as a bank for the grievor. It submitted that the situation is the fault of the grievor and there has to be someone at fault here, and it is not the employer and the employer is being penalized. The Board should consider the cost to the employer. The employer is being asked to pay the employee while she is off work and the grievor is asking to be paid for doing nothing. The Union and the grievor have failed to push the claim along. None of the grievances before this Board have any relevance to the request for interim relief before it. Short term credits must be earned. They were earned and used up and there is no jurisdiction to award an employee short term sick credits other than those agreed to by the parties in the collective agreement. The employer can understand the union asking for “forward pay” but not retroactive pay. Evidence of hardship should be produced for the interim relief requested.

The Union submitted that the Board has jurisdiction to maintain the status quo in an interim ruling, and thereby to make it possible to make an effective final order and prevent irreparable harm in the relationship between the grievor and the employer.

Initial Submissions January 31, 2000:

By The Employer:

The Employer’s representative initially submitted that in view of the grievor’s LTIP application having been denied, there was no need for the Union to proceed before the Board in its application for interim relief, that the Union should simply proceed with the grievor’s LTIP appeal, that a decision will be made by LTIP shortly, and that it is a waste of the Board’s and the employer’s time to go through the process of an order to pay the grievor pending the LTIP decision, notify CORPAY to direct a cheque to the grievor, only to have the grievor pay back the money to the employer in a week or so. He further submitted that if the grievor has provided all the appropriate medical information already, it was unlikely that Manulife would overturn it’s own decision on the appeal. He objected to proceeding with the Union’s motion for interim relief for essentially the following reasons:

a) the grievor’s LTIP claim has been refused;

b) the Union has expanded its request from a cease and desist order to a request for an extension of sick leave benefits;

c) there was no need for proceeding with it;

d) Manulife would make its decision soon;

e) it was a waste of the Board’s time to engage in this process.

By the Union:

Counsel for the Union responded that he understood that the grievor had received a letter from Manulife which is more detailed than the letter the employer received. The grievor had been instructed to contact her OPSEU representatives and deal with Membership Benefits staff, and the appeal may be in motion at this point. The grievor’s health circumstances are similar to the previous occasion in which she applied for LTIP, wherein the LTIP was granted on the day she returned to work and there is little difference between this and the previous application for LTIP. Considerable information has been supplied to Manulife and the situation is complex. There are arguable issues and questions of interpretation. The grievor will require further treatment from Dr. M. and then from a third unnamed doctor. Dr. M. cannot complete his final report (Dr. M. had provided one report which was not final) until a final visit from Ms. Latimer, and the other two physicians’ reports are dependent upon Dr. M.’s final report. Manulife’s delayed but ultimate rejection of the grievor’s application was most likely based on medical information which was fragmentary, but insurers are willing to look at more complete medical information, and that will be probably available in the near future. Manulife is in the business of providing of long-term income benefits and in making money, and their opinion may be questionable, which is why the appeal system is in place (see Art. 22.9.2 and authority of the Claims Review Subcommitee of the Joint Insurance Benefits Review Committee described in Appendix 4, incorporated by reference in Art. 22.9.2). As days go by, the crisis for the grievor increases and her doctors’ opinions are she remains unable to work, and as a result, the major issue for the grievor has not disappeared. The critical factor of her return to work was an assurance, backed by legal force, that the conduct of the employer on May 9, 1999 which preceded her absence from work for medical reasons would not recur. There is no Order, and that’s a problem for the grievor. The guidelines issued by the Board are not sufficient. The Union’s position was that its request for interim relief should proceed.

I ruled that the motion would proceed for reasons which I gave orally, concluding that to adjourn the motion would deny the grievor a full hearing of the issues and constitute a denial of natural justice.

Further Submissions January 31, 2000:

By the Union:

Counsel for the Union advised that the Union was requesting that the grievor be given “extended short-term benefits”. The Union had provided an affidavit, which, it was submitted, asserts that the grievor is suffering continuing and increasing hardship and is unable to work. The relief sought, it acknowledged, is not in the collective agreement. It urged the Board to take the extraordinary step of directing the employer to continue short term benefits. The requirements set out in Stewart 1000/94 are satisfied. The Union seeks this relief for labour relations reasons and to prevent unusual hardship to someone who is unable to work and is experiencing an ongoing, continuing and chronic problem from the traumatic experience of May 9, 1999.

The Grievance Settlement Board has the power to accept oral or written evidence, whether admissible in a court of law or not, under s. 47(12) of the Ontario Labour Relations Act. Affidavit evidence is often relied upon in various proceedings which do not allow for full viva voce evidence. The Board should also consider the unsworn information which had been submitted. A considerable amount of the damages claimed by the grievor could be set off against the money the employer alleges it would be risking in giving the grievor financial assistance at this time. The Union is confident of its success on appeal of the LTIP claim, and that would be another source from which to repay the employer.

The Union advised that it was requesting the extension of the short term benefits at least until the LTIP appeal and the Art. 22.9.2 procedures are exhausted. The Board was asked to remain seised of any order it makes in respect of LTIP and any other avenue of redress under the collective agreement or elsewhere, as there may be other considerations at a later date.

By the Employer:

The onus is on the grievor to convince the Board as to why interim relief should be granted. Concrete evidence, not mysterious sentences, should support this claim. The grievor is responsible to make the LTIP claim and demonstrate that she has mitigated her damages. She must also make sure all medical documentation is provided.

The Board does not have the jurisdiction to extend sick credits. Art. 44.4 states:

An employee who has used leave of absence with pay for one hundred and thirty (130) working days in a calendar year under Article 44.1 must complete twenty (20) consecutive working days before he or she is entitled to further leave under Article 44.1 in the next calendar year.

The collective agreement is clear. The employee must earn these sick leave credits by working 20 days. That is what the parties negotiated in the collective agreement. The Board cannot expand upon their agreement.

An application for interim relief is not the appropriate time to examine the merits. The Board must not base any decision for interim relief upon any incident about which it has heard evidence pertaining to the grievances before it. The decision should be based on a balance of inconvenience test, by comparing harm to both parties. It would exceed the board’s jurisdiction to rule on the interim request based on allegations pertaining to the May 9, 1999 incident. In Stewart, supra, the Board stated

The application for interim relief is not the time to examine the merits of the case.

In Stewart, the tests of whether interim relief should be granted were stated to be

(a) the existence of an arguable case in the main application and

(b) the balance of potential harm or inconvenience to the parties.

The employer concedes that there is an arguable case in the main application.

With regard to the balance of convenience, the grievor must show specific evidence of hardship. Vague assertions are not sufficient. In Stewart, the Board stated

8. There should be a “showing of some specific inconvenience being

suffered to the grievor apart from what may generally be presumed…”

There is no evidence of specific inconvenience before the Board. The same principles apply to a grievor out of work as apply to a grievor seeking reinstatement. The grievor has failed to provide you with evidence of any of the “additional consequences” found in Stewart, supra, at p. 7 - 8, number (1) through (4). In Stewart, the Board considered “extensive evidence” from the grievor regarding her unsuccessful attempts to find alternative employment. Although this Board need not seek evidence of attempts to find alternative employment, it should require evidence of mitigation, i.e. that the grievor took steps to mitigate her damages. This Board should be provided with evidence of the nature provided in Stewart, wherein the details of the grievor’s husband’s difficulties arising from the grievor’s lack of income, and threat of legal proceedings if mortgage payments are not made immediately, with a likelihood of power of sale unless she has an income from work. The grievor has not presented evidence of specific hardship beyond what might be generally presumed. It is not known whether she has a mortgage, or savings upon which she could draw.

The grievor’s assertion that she has been without income or benefits is contradicted by the affidavit of Sherri Loiselle for the employer which states that the grievor received a paycheque from the employer on November 10 and November 25, 1999. This goes to the level of inconvenience and harm which the grievor suffered. The employer extended her pay, by paying her 100% of her pay unintentionally, rather than the level of pay to which she was entitled under the collective agreement at the time.

The grievor has not stated in her affidavit when she applied for C.P.P. benefits. The letter dated September 27, 1999 tells her to apply to C.P.P. for disability benefits if she has not yet done so, and it provided an address. The November 10, 1999 letter says that she can apply for Employment Insurance benefits if necessary. It appears that the grievor has not applied for these benefits in a timely manner. There is no documentation showing when she applied.

The grievor has failed to mitigate her losses by applying to LTIP in a timely manner and has failed to show the Board that she has done so in a timely manner. Counsel for the grievor stating that Dr. M. has not provided his final report and that there is further information coming is not sufficient. The grievor must see her doctor and get the information over to Manulife. The grievor urges that the Board grant her interim relief while saying she has not been able to provide Manulife with the information that she should have provided. The grievor must show that she has pursued these matters in a timely way. There is no evidence, so the employer does not know whether she went to her doctors.

With respect to harm to the employer, the employer is being asked to give the grievor money in exchange for nothing. In Stewart, supra, and in Leeder, 2498/93 etc. the grievor was seeking interim reinstatement and the employer in those cases would receive work from the employee for the money it paid the employee. The harm to the employer in this case would be greater than in the reinstatement cases as it is receiving no work in return for the money paid to the employee.

The grievor has failed to provide appropriate evidence to support her request. The balance of convenience favours the employer.

By the Union:

While the employer is correct with respect to the normal circumstances which must be present in order for an employee to receive payment while off sick, this is definitely not a normal situation.

Arbitrators have powers, in addition to their authority under the collective agreement, under s. 48 (12) (i) “to make interim orders concerning procedural matters” and under s. 48 (13) they are not able to reinstate an employee. The Grievance Settlement Board has a broad jurisdiction regarding interim orders, which has been recognized as such by reviewing courts. In Stewart, supra, the authority to grant interim relief was set out at page 2, and the two tests for interim relief attributed therein to United Food and Commercial Workers’ International Union, Local 175/633 and 810048 Ontario Limited c.o.b. as Loeb Highland, [1993] OLRB Rep. March, 197 (McCormack) were set out (see above, employer submissions). The employer has conceded that the first test (a), above has been met, and its arguments pertaining to the second test:

(b) the balance of potential harm or inconvenience to the parties.

The Board should consider all the criteria at pages 4 and subsequent in Stewart, supra, in determining whether to grant the relief requested.

With respect to “2. The granting of interim relief is not limited to rare and exceptional circumstances.”, exceptional circumstances are present. With respect to “3. The granting of interim relief in a labour relations context requires a consideration of ‘a very specific social and economic landscape’ ”, the conference call provided the Board the landscape. With respect to “4. There can be no ‘boilerplate’ or ‘one-size-fits-all’ approach to granting interim relief.”, the Board must look at the grievor’s specific circumstances. She has set that out in her affidavit and in her testimony to date, that she is sick. It is obvious. The Board must have reference to “5. A board of arbitrations must ‘consider both what harm may occur if an interim order is not granted, and what harm may occur if it is.’ Reference to Loeb at p. 9 of Leeder, where emphasis was added. ”

With respect to item 6 in Stewart, supra, the threshold the grievor must meet is lower than the “irreparable harm” test.

With respect to item 7 in Stewart, that case dealt with a request for reinstatement following a disciplinary dismissal. The Board stated that the employer’s concerns with regard to the prospective effect of an interim order should be considered, but are not dispositive of whether the relief will be granted. A properly worded interim order will address the issues of concern.

With respect to item 8 in Stewart, “There should be a ‘showing of some specific inconvenience being suffered to the grievor apart from what may generally be presumed… ’ .” detailed submissions regarding this have been given.

Item 9 states “Delay in making the application may be a factor in denying it.” Item 10 states “Where issues of safety are raised on an application for interim relief, ‘there should be evidence before the Board which would lead the Board to believe that there is a risk of unsafe conduct occurring should the employee be reinstated for the interim period pending the disposition of the main application.’ See United Food and Commercial Workers’ International Union v. Shirlon Plastics Inc. OLRB (Shouldice), dated August 8, 1994, referred to a pp. 18-19 of Leeder, where emphasis was added.”

The Board must consider a number of different issues. The hurdle is not nearly as high as the employer suggests. The Board must look at the special labour relations issue giving rise to the request.

With respect to the suggestion that the Board is being asked to look at the merits of the main grievances, an interim order is being sought. It is a fact that the grievor is off work for medical reasons and does not have an income. It is not difficult to find who is at fault, but that would be going into the merits. We walk a fine line. The Board should not enter into a complete finding of the merits of the grievances. However, it can find that the May 9, 1999 incident precipitated the grievor’s absence from work. The employer will not state that the May 9, 1999 incident did not precipitate the grievor’s absence, but will only state that she was absent from work after May 9, 1999. The Board does not have to make a finding as to the merits in order to determine this motion. Nothing in the employer’s affidavit and submissions challenges the causality of the grievor’s condition. Where there is a lack of awareness, a certain shifting onus occurs. Although the employer has submitted that the grievor has failed to mitigate, the employer must prove that the grievor has not mitigated, that there is something flawed in her representations.

The evidence with respect to the May 9, 1999 incident and the grievor’s affidavit were presented for the purpose of determining motions, not the grievances. In consequence, the Union is not seeking a ruling with regard to the merits, but rather, asking the Board to exercise its authority under s. 48 (12) (i) of the Labour Relations Act.

Regarding the balance of inconvenience test and circumstances 8 to 10 which boards may consider, and particularly item 8 in Stewart, “There should be a ‘showing of some specific inconvenience being suffered to the grievor apart from what may generally be presumed… ’ .” it is generally presumed that it’s an inconvenience to be without income. In Stewart, in the context of a disciplinary dismissal, the Board had to find something special. Our case is distinguishable by the fact that the grievor is medically disabled from doing her job. That is as special as you can get. It becomes even more special, extra special, when the precipitating situation was work-related. The grievor was held back from leaving the institution in the face of the opinion of the nurse, the most senior medical person on staff. The circumstances are not parallel to a “run-of-the mill” firing.

The grievor and the Union reasonably assumed that she stopped receiving her pay around November 7, 1999, and learned of the employer’s view that an overpayment had occurred shortly before Ms. Loiselle’s affidavit (dated January 28, 2000) was presented. The Union has been unable to check into it. The Union alleges that the grievor received her Record from the employer some time in the week ending January 28, 2000. The employer is contradicting the grievor’s affidavit as to when she ceased receiving an income from the employer with a belated statement, and is saying that the grievor’s affidavit is in some way misleading. The errors regarding payment referred to in Ms. Loiselle’s affidavit are the employer’s errors.

While the employer says that the grievor hasn’t applied for other benefits in a timely manner, it too must come to the Board with “clean hands”. While the employer submits that the grievor’s affidavit is insufficiently specific, and she had failed to mitigate and did not get her medical reports, the Union submits that the grievor has been without income since November, 1999, is too ill to work, has applied for C.P.P. benefits and Employment Insurance and LTIP. The grievor’s affidavit does not say she has applied for welfare yet. Unless there is another way she can receive some income, that is the next step.

With regard to Dr. M.’s reports, the grievor has two different purposes in attending on her doctor. One purpose is to provide medical information for her LTIP application, but more importantly, the second purpose is to obtain a reasonable course of treatment for her illness. The grievor wants to get well. The LTIP Insurer’s request for information overlaps with the course of treatment that she is receiving. It would be unfortunate to try to rush the treatment procedure in order to create documents for the LTIP insurer. The delay is not purposive. It’s a matter of several doctors reviewing her medical situation. If that delays all the medical information being provided to Manulife, it is because precedence is being given to treatment over the provision of medical information.

The employer’s submission regarding not receiving the benefit of work from the grievor if ordered to provide her an income, as opposed to a situation where someone who was terminated for being so “bad” is forceably reinstated, is prejudicial to employees who are too sick to work. Further, the employer submits that the grievor has to be poor to be entitled to interim relief. This is an unfortunate argument and contradictory. The grievor cannot overcome these submissions.

Union counsel advised that he was without instructions as to whether the grievor would be medically able to work in another institution for the employer. He submitted that certain individuals’ actions in the Sudbury Jail “precipitate” her illness and that she may be able to work in another institution, that she may take comfort from working elsewhere, where she would not need a cease and desist order, and this may be worth exploring.

Counsel for the Union requested that the Board consider the parties’ unsworn statements, which he characterized as a tangled web of assertions, counter-assertions and denials which would have to be sorted through.

By the Employer:

The Union has changed its position with respect to the circumstances under which the grievor could return to work. Her insistence upon a cease and desist order, as opposed to reasonable assurance that the May 9, 1999 events would not reoccur is a contradiction which goes to the credibility of the grievor’s claim that she is too sick to work. The onus is on the Union to demonstrate that the grievor is too sick to return to work at the Sudbury Jail, and there has been no medical information to that effect since November 7, 1999. While the Union alleges that the employer’s position discriminates against employees who are too sick to work, there is no evidence that the grievor is too sick to work. An LTIP ruling has been made. The grievor was asked to attend a Mandatory Medical examination and she did not do so. The onus regarding mitigation is on the Union, although the union seeks to shift it to the employer. That is the usual procedure regarding mitigation. The Union provided evidence of mitigation in Stewart, supra. The details are within the grievor’s knowledge.

There is no cross-obligation to provide the fullest possible information re potential harm and balance of inconvenience. Neither of the affidavits before the Board provides much of that. Further, it is the employer’s position that it is unlikely that the grievor’s sworn statement at paragraph 8 of her affidavit that she had been without income since November 7, 1999 was a misapprehension.

The Union’s position is that s. 48 (12) (i) of the Labour Relations Act gives the Board the power to extend sick credits. To award benefits greater than provided for in the collective agreement would exceed this Board’s jurisdiction. Such an award would not constitute a procedural order.

Although Stewart states that entitlement to interim relief is not limited to rare and exceptional circumstances, it is not appropriate here. When the Board considers the economic and social landscape and considers that the employer is being asked to pay the grievor without receiving work in return, that is a reason not to grant interim relief.

The employer indicated it would only be willing to explore the issue of whether it can make a position available to the grievor at another institution on the condition that the grievor first give an indication that she is interested in working at another institution.

The employer indicated that the Board should consider the unsworn information provided in the teleconference call as evidence.

The Considerations:

The Ontario Divisional Court has stated that the Grievance Settlement Board has broad jurisdiction, subject to certain provisos, to make interim orders. The endorsement on the Application Record of the case of Her Majesty the Queen in Right of Ontario as represented by The Ministry of Labour v. Grievance Settlement Board, et al (in reference to the decisions of Vice Chairs Roberts and McKechnie in Nield, 1471/96) states

The central issue in the grievance is whether Mr. Nield has a conflict of interest. Neither of the Interim Orders decides that issue, or makes a finding relevant to its determination. The interim Orders remove the urgency of a decision of the central issue by permitting Mr. Nield to retain his investment in his body shop until determination of the merits of the grievance, provided he avoids involvement in the inspection of auto body shops. In our judgment, these Interim Orders deal with procedural matters within the meaning of s. 48 (12) (i) of the Labour Relations Act, 1995.

Section 48 (13) of that Act provides that an arbitrator shall not make an interim order under s. 48 (12) (i) requiring an employer to reinstate an employee in employment. Subsection (13) indicates that the legislature gave a broad meaning to the words “procedural matters” in s. 48 (12) (i).

I therefore conclude that this Board has the jurisdiction to consider and determine the request for interim relief under s. 48 (12) (i) of the Labour Relations Act, provided that it does not decide the central issue(s) and does not make a finding relevant to its determination.

The relevant provisions of the collective agreement are

ARTICLE 42 - LONG TERM INCOME PROTECTION

42.2.2 The L.T.I.P. benefit to which an employee is entitled … shall be reduced by the total of other disability … benefits payable under any plan toward which the Employer makes a contribution…

42.2.3 The L.T.I.P. benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day-to-day basis after the six month period.

42.2.4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of … her normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which … she is reasonably fitted by education, training or experience.

42.4 A record of employment, if required in order to claim Employment Insurance sickness and disability benefits, will be granted to an employee and this document shall not be considered as termination of employment.

ARTICLE 43 - JOINT INSURANCE BENEFITS REVIEW COMMITTEE

43.1 The parties agree to continue the Joint Insurance Benefits Review Committee. The terms of reference are set out in Appendix 4 (Joint Insurance Benefits Review Committee) attached.

ARTICLE 44 - SHORT TERM SICKNESS PLAN

44.9 Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer.

Appendix 4 of the Collective Agreement indicates, among other things, that one of the duties of the Joint Insurance Benefits Review Committee is:

Review of contentious claims and recommendations thereon, when such claim problems have not been resolved through the existing administrative procedures.

The parties have negotiated extensive provisions in Art. 44 with respect to entitlement to leave of absence with pay for an employee who is unable to attend to his or her injuries due to sickness or injury. It is not necessary to set them out in this ruling.

From the above provisions I conclude that the parties, in negotiating their collective agreement, have considered the possibility of delays arising in the course of establishing any particular employee’s entitlement to L.T.I.P. benefits. They have addressed the availability (and ultimate deductibility from L.T.I.P.) of “other disability … benefits payable under any plan,” etc. in Art. 42.2.2, including, I conclude, Canada Pension Plan disability benefits. The definition of total disability is set out in Art. 42.2.4. Art. 42.4 specifically contemplates the employer providing a Record of Employment for a claim by an L.T.I.P. applicant for Employment Insurance sickness and disability benefits without termination of employment. In this context, Art. 42.2.3 must be read as indicating that entitlement to benefits arises after a qualification period of six months and that L.T.I.P benefits do not necessarily begin to be paid after six months of short term sickness plan benefits. There is no requirement in the collective agreement that the employer pay an employee L.T.I.P. benefits while the claim is being processed. The provisions in the collective agreement suggest that in the usual case, the employee who experiences a lapse in benefits coverage must look to Employment Insurance and Canada Pension Plan Disability benefits.

This is not a usual case. This is a very special case and a very special request in very unusual circumstances.

The Board should be mindful of the Divisional Court’s remarks set out above, and as well, apply the two-fold test in Stewart, supra, stated above, and have regard to the considerations for the determination of the balance of potential harm or inconvenience set out therein at pp. 4-6:

1. The application for interim relief is not the time to examine the merits of the case.

2. The granting of interim relief is not limited to rare and exceptional circumstances.

3. The granting of interim relief in a labour relations context requires a consideration of “a very specific social and economic landscape.”

4. There can be no “boilerplate” or “one-size-fits-all” approach to granting interim relief.

5. A board of arbitrations must “consider both what harm may occur if an interim order is not granted, and what harm may occur if it is.” …

6. The principles utilized by some courts governing the granting of interlocutory injunctions, being the test of “irreparable harm” has been rejected in favour of “a balancing of harm done to the parties.”

7. An employer’s concerns “with respect to prospective discipline, compensation issues and morale, … which will most probably arise every time that interim relief is requested … will be part of the board’s consideration but should not be reasons for rejecting a request for interim relief.” (Leeder at p. 13) An employer’s concern that other employees (and others, such as inmates in this case) will misinterpret the return to work of a grievor as part of the granting on an application for interim relief and assume that an employee, in this case the Grievor, can “get away” with culpable behaviour and be returned to her employment, can be dealt with by such information disseminating measures as the posting of appropriate notices that set out the authority for the order and explain its nature. There should be no automatic assumption that such notification will be incapable of conveying the message that no decision has been made on the merits, and that the return of a grievor to work is an interim measure that has no bearing on the outcome of the case.

8. There should be a “showing of some specific inconvenience being suffered to the grievor apart from what may generally be presumed

9. Delay in making the application may be a factor in denying it.

10.Where issues of safety are raised on an application for interim relief, “There should be evidence before the Board which would lead the Board to believe that there is a risk of unsafe conduct occurring should the employee be reinstated for the interim period pending the disposition of the main application.”

However, the Board must also bear in mind that the above statements are matters to be considered, none of which, taken individually, is determinative of the balance of potential harm or inconvenience. The determination of the balance of potential harm or inconvenience is a discretionary exercise. Each case will be determined on its own facts.

Effect of reinstatement (7) and issues of safety (10) were not raised and will not be addressed.

It is not in dispute that the grievor had used up her accumulated credits and short term sickness plan entitlements some time in November, 1999.

It is regrettable that the grievor’s L.T.I.P. claim was not commenced earlier than September 27, 1999, particularly in view of the grievor’s and employer’s experience in relation to her L.T.I.P. claim in 1997. The employer commenced its application in the 5^th month of the grievor’s absence from work under Art. 44.1. There is no indication that the employer applied any procedure or timing of the commencement of the grievor’s L.T.I.P claim other than that used for all its employees “in the ordinary case”. Its judgment, in viewing the grievor’s circumstances as the ordinary case, can, in hindsight, be seen as less than comprehending of the grievor’s circumstances, particularly in view of the employer’s and grievor’s experience with her LTIP claim in 1997.

While the selection of the end of September, 1999 for the commencement of the grievor’s application for L.T.I.P. may have contributed to the delay in processing her application, and while the grievor may not have received the September 27, 1999 and November 10, 1999 letters produced by the employer, it cannot be concluded on the evidence before me that there was deliberate intention on the part of the employer to hinder her L.T.I.P. application or her applications for other benefits.

The grievor is represented by OPSEU representatives who were able to advise her of her entitlements and assist her in pursuing her entitlements under the collective agreement and to Employment Insurance. I accept that the grievor applied for Canada Pension Plan Disability benefits at some point in the fall of 1997 and that she was asked to supply further information in January, 2000, and that no determination of her entitlement to those benefits had been made by January 17, 2000. The grievor, unfortunately enough, for reasons which are not clear, did not apply for Employment Insurance benefits, although these benefits are specifically named in the Collective Agreement in Art. 42, until some time between January 5 and January 17, 2000. There is no evidence that this late application was deliberate on her part or due to a sense of entitlement on her part to financial assistance from the employer.

While delay is a consideration, in all the circumstances, it is not determinative in this case of whether interim relief will be granted.

The Union contends that the grievor’s medical condition is complex and that she requires further treatment, and, I gather, further medical assessment, before final reports can be provided to Manulife for reconsideration of her L.T.I.P. claim. On the information before me, the initial outcome of the grievor’s L.T.I.P. application cannot be attributed to any action or lack thereof on the part of either the grievor or the employer.

The grievor’s position essentially is that but for the actions of the employer on May 9, 1999, she would not be unable to work, (i.e. she would be able to work) and that therefore the employer should be ordered to continue her salary at some level, until she establishes that she is entitled to L.T.I.P. or other benefits. The grievor’s position assumes that the Board can accept as fact her statement that she has been unable to work at the Sudbury Jail, and in the absence of any indication from her to the contrary, unable to work in any position for the Ministry since her short term sick benefits ceased in November, 1999. Unfortunately, the most recent medical evidence before the Board is the Request for Health Information Form dated May 31, 1999. The grievor is expressing a medical opinion to this Board regarding the continuation of the medical condition she was determined by Dr. P. to be suffering from on May 31, 1999 which caused her to be unable to work at that time, in maintaining that she remains unable to return to work at this time due to “illness”.

There is nothing in the documents and information presented that would suggest that the grievor’s position, stated in her affidavit, that she has remained ill and been unable to work at the Sudbury Jail since May 9, 1999 to date is false or a “hoax”. That view, however, is implicit in some of the employer’s submissions.

The employer received Dr. P.’s form in early June, 1999. It does not appear, on the information before me, that the employer, presumably not satisfied with Dr. P.’s information when it was received, asked Dr. P. in June or July, 1999, for further and more detailed information from him, or requested the grievor to attend a Mandatory Medical examination at that time. By the same token, it does not appear that grievor, when her entitlement to short term sickness benefits ceased and if her physician determined that she was still unable to return to work, provided the employer at that time or since then with a further Request for Employee Health Information form from Dr. P. or any of her physicians documenting that she was unable to return to work. The absence of timely communication on the part of both parties is apparent.

This Board, in the absence of any evidence to the contrary of Dr. P.’s statement in the May 31, 1999 Health Information Form, accepts that as of May 31, 1999, the grievor was suffering from an unnamed medical condition which prevented her from returning to work. The grievor has been absent from work and says that she has been unable to perform her duties for reasons of health since May 9, 1999, a period of 10 months. While the employer did not move quickly under Art. 44.9, in the context of this proceeding, its request for a Mandatory Medical examination was not unreasonable.

For the purposes of the motion for interim relief, the Board accepts that the grievor has been without an income from the employer since some time in November, 1999 and that she is specifically inconvenienced by the lack of income, which inconvenience is exacerbated by her being unable to obtain other benefits or income from any other source. Again, there is no evidence that she is not too sick to work.

While sympathetic to the grievor’s situation, the Board cannot rely on the grievor’s bare statement as to her inability to work at this time. To rely on her bare statement, in the course of determining the balance of potential harm or inconvenience of an order directing the employer to provide her with some form of income over some interim period, would be to decide one of the central issues in the grievances, the grievor’s personal credibility. The Board requires a medical opinion.

Both parties are obliged in these interim proceedings to make as full and detailed disclosure as possible of the impact on each of providing the relief requested and of not providing it. Disclosure has been less than full and detailed. Nevertheless, the parties require direction as to how to proceed.

The grievor wishes to protect her privacy regarding the identification of her medical condition. The employer maintains that it respects her privacy in that regard. The employer does not believe that she is unable to work. The employer’s position in that regard is purely speculative. However, at the same time, the grievor has not provided any medical documentation to support her position. The employer states that it wants the grievor to return to work and does not wish to provide her an income without receiving the benefit of her services at work.

The parties have clearly reached an impasse. No compromise, no surrender.

The function of an interim ruling in such an unusual case is to overcome the obstacles preventing each party from attaining their legitimate objectives and enable them to continue the hearing with a minimum of ill will. Its function is not to penalize either party, but to enable them, if possible, to maintain a reasonable relationship pending the final resolution of the grievances.

The Ruling:

In view of all of the above considerations, the following interim order shall issue :

1. The Employer is ordered and directed to promptly provide the grievor a blank Request for Employee Health Information form.

2. The Employer is ordered and directed to promptly identify in writing to Union Counsel and the grievor the positions at Cecil Facer Youth Centre which the grievor’s education, training and experience would possibly qualify her to fill, and to promptly provide them with a written description of the duties of the positions, similar to the requirements of the postings at the Sudbury Jail which the Employer has provided to Dr. McMullen.

3. Union Counsel is ordered and directed to send a written request to Dr. P. (with a copy to the employer) advising him that the grievor will promptly provide him with a further Request for Employee Health Information form and requesting him to fill it out, providing his detailed answers to the questions therein, with the exception of identification of the grievor’s medical condition and medication, if any, and asking him to indicate on the form or in a written report or on an additional page his opinion as to whether the grievor is currently able to take up duties at either the Sudbury Jail or at Cecil Facer Youth Centre, and providing him with a copy of the information regarding the duties of the various postings at each of these institutions Union Counsel has received from the Employer, and asking him to describe what accommodation, if any, she will require at a position in either institution.

4. The grievor is ordered and directed to take the Request for Employee Health Information form to Dr. P. promptly upon notification by her Counsel that the written request has been sent to him.

5. The completed Request for Employee Health Information form, once completed, is to be forwarded promptly to the Employer and Union Counsel by either Dr. P.’s office or the grievor .

6. If Dr. P. indicates on the form that the grievor is medically able to assume a position at the Sudbury Jail, or indicates that the grievor is medically able to assume a position at Cecil Facer Youth Centre but not the Sudbury Jail, and indicates the accommodation, if any, that the grievor requires and if that accommodation can be provided within the requirements of the Ontario Human Rights Code, the Employer is ordered and directed to promptly place, assign or transfer the grievor temporarily into such position at the institution Dr. P. identifies and maintain her in that employment with such accommodations as may be modified by Dr. P. from time to time, until the final resolution of these proceedings, and the Employer is ordered and directed to pay the grievor her salary and benefits as a Corrections Officer in accordance with her entitlement under the collective agreement, commencing fourteen days after its receipt of the form from Dr. P. until the final resolution of these proceedings.

7. If Dr. P. indicates that the grievor is not medically able to return to work at either the Sudbury Jail or Cecil Facer Youth Centre, the Employer is ordered and directed to pay the grievor her regular salary from the date upon which the Employer receives the form from Dr. P. until such further time as Dr. P. indicates in writing that she is able to return to work at one of the institutions and the grievor commences duties, or until the final disposition of these proceedings, or until a further interim order by the Board, whichever is earliest, subject to the proviso that if the grievor receives C.P.P. disability or L.T.I.P. benefits while in receipt of payment from the employer under this paragraph, she will be required to reimburse the Employer promptly for the amount of the benefits received.

8. If within one week (seven days) of receipt of the form from Dr. P. by the Employer, the Employer requests the grievor to attend a Mandatory Medical examination, which request shall be conveyed in writing to the grievor and Union Counsel within that time, the grievor is ordered and directed to attend at a Mandatory Medical examination to be conducted by Dr. McMullen, at the expense of the Employer as contemplated in Art. 44.9 and the Employer is ordered and directed to provide Dr. McMullen the same information regarding positions at Cecil Facer Youth Centre as it provided Union Counsel for Dr. P.

9. In furtherance of the Mandatory Medical, if requested within the time indicated in paragraph 8,

a) The Employer is ordered and directed to promptly provide the grievor and Union Counsel a copy of all consents, releases and/or authorizations that the grievor will be required to sign for the Mandatory Medical examination, at least one week prior to the examination taking place, to enable him to consider them and advise the grievor.

b) The grievor is ordered and directed to sign all necessary (as determined by Union Counsel) consents, releases and/or authorizations to enable the Mandatory Medical examination to take place.

c) The Employer is ordered and directed to arrange the appointment for the Mandatory Medical examination with Dr. McMullen in consultation with the grievor.

d) The Employer is ordered and directed to make a further written request for the Mandatory Medical examination in the same terms as in its letter to Dr. McMullen dated December 7, 1999, with the addition of the words “and Cecil Facer Youth Centre” at the end of the third paragraph.

10. The parties are ordered and directed to cooperate with one another regarding the implementation of these terms.

11. I will remain seised with respect to the implementation of this interim order.

This ruling is being issued during “March break”. If Dr. P. is not available, the completion of the Request for Employee Health Information form by another physician of the grievor who is treating and/or assessing her in relation to the medical condition referred to by Dr. P. in the Employee Health Information form dated May 31, 1999 and its prompt provision to the employer will be considered compliance with the above orders and directions.

I am assuming that by the date of delivery of this decision to the parties, the grievor will have received or will be about to receive approximately fifteen weeks of Employment Insurance sick benefits which she applied for in January, retroactively from November 8 or 25, 1999. I may be spoken to if this is not the case.

The remaining evidence and argument are scheduled to be heard over eight days of hearing in March and April, 2000, which dates have been agreed to by the parties previously.

Dated at Toronto, Ontario this 13^th day of March, 2000.