GSB# 2000-1220

UNION# 2000-0154-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Richard)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

June 14, 2005.

Award

On the morning of the second day of hearing in this matter, a dispute arose in regard to the production of documents. Specifically, the Employer seeks the grievor’s decoded OHIP summary for the period from January 1, 1996 to May 2005. The Union opposes that request.

Facts

In its grievance and particulars, the Union asserts that due to a number of occurrences and harassment at the workplace between February 1998 and mid-2000, the grievor experienced substantial stress and anxiety, became ill and was unable to work. It further alleges that the grievor remains unable to work. It seeks a number of remedies including lost wages, damages and future loss of earnings until age 65.

During opening statements by counsel for the Union, and in examination-in-chief of the grievor during the first day of hearing, it became clear that the grievor has long experienced stress and anxiety – including panic attacks – which substantially predate the allegations against the Employer.

The Employer then requested the grievor’s decoded OHIP summary from January 1996 – two years before the first alleged occurrence at the workplace – until May 2005, the start of the hearing. The Union opposed that request, and the parties’ argued their respective positions.

Position of the Parties

The Employer argues that the grievor should be required to produce his decoded OHIP summary from January 1996 to May 2005. It submits that this summary is “arguably relevant” to the issues in this case since the grievor’s physical and mental health, both prior to and after 1998, has been put into issue. It argues that it has the right to explore what medical assistance the grievor sought for his anxiety and stress from January 1996 forward. Determining the extent of the grievor’s pre-existing conditions, in the Employer’s submission, is vital to its case and the determination of liability. It contends that the summaries are needed to ensure a complete picture of the grievor’s pre-existing condition. The Employer asserts that its request for the two-year period before the first allegation is limited and reasonable in all the circumstances.

In supports of its request, the Employer cites to the following cases: Derynck v. Chevalier Estate [2002] O.J. No. 641 (Ont. Sup. Ct. Justice); Re Toronto Distict School Board and Canadian Union of Public Employees, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime); OPSEU (Wilson) and Ministry of Health (1995), GSB No. 2855/91 (Gray); OPSEU (Fabro) and Ministry of Industry, Trade & Technology (1992), GSB No. 755/89 et al. (Roberts).

The Union opposes the Employer’s request. It argues that the request is premature in that the Employer has made no attempt yet to access the clinical records of the grievor’s doctors, which might provide the information sought. The Union acknowledges that the grievor’s mental health is at issue and accepts that, as a result, the Employer is entitled to probe the existence of pre-existing conditions, but it asserts that it may do so by seeking the records of the medical practitioners identified by the grievor – not by having blanket access to the grievor’s OHIP summary. It further argues that the request is overbroad in that it will reveal personal, confidential medical information wholly unrelated to the grievor’s stress and anxiety. The Union argues that an employee who alleges that the Employer’s actions have physically or mentally harmed him should not, as a result, lose all right to confidentiality of his medical information and history. If so, it suggests that the victim would be victimized twice – first by what happened, then by the release of confidential medical information. The Union further argues that the Employer is on a fishing expedition. It submits that a higher standard must be met when a party request medical records because of the substantial privacy issues at stake.

In support of its position, the Union cites to the following cases: Re Municipality of Oliver Paipoonge and Labourers’ International Union of North America, Local 607 (1999), 79 L.A.C. (4th) 41 (Whitaker); Re Becker Milk Co. Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (1996), 1996 CanLII 20358 (ON LA), 53 L.A.C. (4th) 420 (Joyce); Re Share Family and Community Services Society and Health Sciences Association of British Columbia (2002), 2002 CanLII 79124 (BC LA), 109 L.A.C. (4th) 289 (Lanyon).

In the alternative, the Union argues that the document should first be reviewed by the Board to determine if information relevant to any pre-existing condition is revealed or additional doctors disclosed, then that information may be revealed to counsel for the Employer. In support, the Union relies on Re Centre for Addiction and Mental Health and OPSEU (2004) 2004 CanLII 94774 (ON LA), 133 L.A.C. (4th) 178 (Nairn), where the arbitrator first reviewed copies of emails in order to make her determination on disclosure.

In reply, the Employer asserts that relying on the names of doctors provided by the grievor is insufficient. It asserts that during his testimony on the first day of hearing, the Employer learned of a new doctor that the grievor had seen, and that there may be others whom the grievor does not remember at this time. It argues that the cases relied upon by the Union are distinguishable and that based on the evidence and allegations in this case, it has a right to explore the full extent of the grievor’s pre-existing medical issues.

Decision

The cases provided by the parties adopt various standards in regard to the disclosure of documents. In Re Toronto District School Board, supra, Arbitrator Shime adopted a “liberal” approach to disclosure, stating at p. 32 that “[a]ll documents which are arguably or seemingly relevant or have a semblance of relevance must be produced.” That case, however, did not deal with the issue of medical records. In Derynck v. Chevalier Estate, supra, a civil action, the Court ordered the plaintiff to produce a decoded OHIP summary for a period of two years prior to the motor vehicle accident at issue, since the defendant had alleged a pre-existing injury and “the plaintiff has put his entire physical and emotional health in issue.” In Re Becker Milk Co. Ltd., supra, Arbitrator Joyce ruled that the standard for disclosure is “arguably relevant” but stated that “a higher onus” may be required for mental heath information because that information “rightly or wrongly may tend to stigmatize the individuals…” He ruled that the requesting party must “satisfy the arbitrator as to why this information is essential.” In Re Municipality of Oliver Paipoonge, supra at p. 245, the arbitrator held that mental health records and submission to a psychiatric examination may only be “undertaken at the point in time when they are in fact necessary or essential for purposes of the adjudication of the grievance.”

The document requested here, a decoded OHIP summary, is not a “mental health record” although it does contain personal and confidential medical information. Accordingly, I do not find that standard of “necessary or essential” applies. Instead, I agree with the statement in Re Becker Milk Co. Ltd., supra at p. 428, regarding disclosure of medical records:

In ordering the disclosure of medical records, arbitrators must be sensitive to the fact that such records may include personal and confidential information. In exercising the required discretion, the individual’s interest in the non-disclosure of personal and confidential medical information must be balanced with the policy considerations that suggest that disclosure is useful and necessary.

In this case, I find that the balance favours disclosure. It is clear that not only is the grievor’s mental and physical health at issue, but causation is also a very significant issue. The Union alleges that events and harassment at the workplace directly caused the grievor to become ill and unable to work. Assuming that the grievor is unable to work due to stress and anxiety, the question of causation remains. Was that situation caused by events at the workplace for which the Employer is arguably liable, or did it result, in whole or in part, from a pre-existing condition, such that the Employer, arguably, is not liable? In these circumstances, the grievor’s pre-existing medical condition is a relevant subject of inquiry, as is the ongoing treatment due to his claim of future lost earnings, and the OHIP summary will assist is determining what treatment the grievor has sought.

I cannot agree with the Union’s argument, under the facts of this case, that disclosure means that the victim is being victimized twice. Nor does it mean, in every case, that a grievor who alleges that the employer’s misconduct caused them to become ill must disclose their whole medical history. Each case depends on its facts. In this case, the grievor has had a long history of stress and anxiety, including panic attacks. It is this fact, and its significance to the Employer’s defense and the issues in dispute, that entitles the Employer to explore the grievor’s medical history through the OHIP summary.

In so ruling, I conclude that the Employer need not rely on the grievor’s recollection of the physicians he saw over the years, or first seek the clinical notes of the doctors he has named. There is no assurance that the grievor’s recollection is complete, whereas the OHIP summary would be a reliable indicator. Although the summary may also include medical treatments unrelated to this case ( e.g., a visit to a podiatrist), it may also include information which is highly relevant to the Employer’s defense in this case.

In regard to the Union’s alternative argument, I find it unnecessary for this Board to first review the OHIP summary. However, a number of conditions will be imposed to address some of the privacy concerns. First, only counsel for the Employer and one advisor may review the document. Second, no copies may be made. Third, the document may only be used in connection with the Employer’s defense of this grievance and for no other purpose.

Conclusion

For all of the reasons set forth above, the Employer’s request for the grievor’s decoded OHIP summary from January 1996 to May 2005 is granted, under the conditions outlined immediately above.

Issued at Toronto this 20th day of June, 2005.