Ontario Public Service Employees Union (Jones) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 42778

GSB# 2005-2769, 2006-0164

UNION# 2005-0530-0045, 2006-0530-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jones)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Mary Lou Tims

Vice-Chair

FOR THE UNION

T. Stephen Lavender Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Benjamin Parry Counsel Ministry of Government Services

HEARING

November 30, 2006.

Decision

There are two grievances before me. The first, dated September 20, 2005, pertains to denial of sick leave, and the second, dated February 28, 2006 alleges unfair dismissal.

On the first day of hearing in June 2006, the parties reached agreement that a consent order in the following terms should be issued:

(1) Pursuant to the Union’s request to consolidate the grievances filed by the above-mentioned grievor, the parties agree to list both grievances before the Vice-Chair. The parties agree that the grievance dated February 28, 2006 will be determined first and the grievance dated September 20, 2005 will be determined upon completion of the February 28, 2006 grievance. The Employer reserves the right to raise and argue preliminary matters.

(2) The parties will provide one another with particulars of their respective positions pertaining to grievance #2006-0530-0009 (GSB File #2006-0164) and grievance #2005-0530-0045 on or before September 15, 2006.

(3) The parties will produce to one another all documentation in their possession relevant to grievance #2006-0530-0009 (GSB File #2006-0164) and grievance #2005-0530-0045, including medical documentation in their possession relevant to either grievance.

(4) Both parties reserve the right to seek further particulars and further production, and to challenge the sufficiency of the particulars and productions received pursuant to this Order.

(5) I retain jurisdiction over both grievances referenced in paragraph (1) herein.

An interim order incorporating the parties’ agreed upon terms was issued June 12, 2006.

The Union subsequently sought and obtained from the Employer agreement to extend the deadline for the delivery of particulars to September 30, 2006. Employer Counsel indicated that he was advised that the Union required this additional time to allow the grievor to locate a personal diary relevant to these proceedings.

By letter dated September 29, 2006, the Union produced a number of documents and provided to the Employer particulars of the grievances.

The Employer advised the Union by e-mail dated November 21, 2006 that such particulars and production were insufficient in its view.

On November 23, 2006, the Union provided the Employer with a medical report dated November 14, 2006 from Dr. R. Hull. The Union stated:

“It is the union’s position that Dr. Hull need not be called to give viva voce testimony, and that if the employer insists on him being called, it is responsible for arranging his attendance. Alternatively, it is the union’s position that the hearing where he testifies should be held in Peterborough.”

The Employer responded by e-mail dated November 28, 2006, stating in part:

“It is the Employer’s position that the report is inadmissible. If it is found to be admissible, we will argue that no weight should be afforded to the report unless the Union tendered the Dr. for cross-examination.

In addition, the Employer will be challenging the admissibility and probative value of the 2 Dr.s’ notes . . . . We would certainly expect that the Dr. who is alive be tendered by the Union for cross-examination. The deceased Dr.’s notes would be inadmissible for the truth of the contents therein.”

The Union’s representative advised by further e-mail dated December 1, 2006, that it “withdraws its claim that the employer should arrange and pay for Dr. Hull’s attendance,” but maintains that the hearing should be convened in Peterborough if and when Dr. Hull testifies.

This interim award deals with three preliminary issues raised by the parties when the hearing was reconvened on November 30, 2006. There were no objections with respect to my jurisdiction to determine such preliminary matters.

Dr. Hull’s November 14, 2006 Report

As stated above, the Union provided to the Employer a copy of a November 14, 2006 report prepared by Dr. R. Hull, a psychiatrist at the Peterborough Regional Health Centre.

The Employer takes the position that Dr. Hull’s report is inadmissible in these proceedings as it was acquired for purposes of this hearing and was not provided to the Employer prior to the termination of the grievor’s employment. The parties were of the view, however, that such objection should be argued and decided at a later point in these proceedings.

At issue before me at this time is the venue of the hearing if and when Dr. Hull testifies.

If Dr. Hull’s report is admitted despite the Employer’s objection, the Employer takes the position that Dr. Hull must be made available to be cross-examined. A number of authorities were referenced, and the Union does not take issue with the Employer’s position.

Initially, the parties were in dispute as to whether it would be the Union or the Employer that would be required to arrange for and pay for Dr. Hull’s attendance, but the Union withdrew its claim that it was the Employer who would bear such obligation.

The Union argues, however, that if Dr. Hull gives evidence in these proceedings, the hearing on that day should be convened in Peterborough so as to minimally disrupt the doctor’s practice and his availability to see patients. The Employer argues against this, suggesting that it is an “overreaction with broad implications” to change the venue of the hearing to accommodate a single witness.

After considering the parties’ submissions, I am of the view that in the circumstances of this case, the hearing should be convened in Peterborough Ontario on the day that Dr. Hull is to testify, if in fact he gives evidence in these proceedings. I so order.

Particulars

The Employer challenges the sufficiency of the particulars provided by the Union September 29, 2006, relying upon both the June 12, 2006 interim order as well as article 22.14 of the parties’ collective agreement, set out in part as follows:

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

Specifically, Employer Counsel argues that the Union is required to particularize the “when, where, how and who” of the assertions upon which it seeks to rely, and that it has in numerous instances failed to do so. While the Employer questions the relevance of certain matters particularized by the Union and reserves its right to challenge the admissibility of evidence that may ultimately be called, it nonetheless argues that to the extent that the Union seeks to rely on the alleged facts set out in the particulars, it is required to fully particularize them.

The Employer addressed a number of specific provisions of the particulars which it suggests are inadequate. It requests that I find that the Union is in breach of the June 2006 interim order. It also seeks an order that the Union is to deliver further particulars within five business days.

The Employer relies upon the following authorities in support of its position: OPSEU (Deeger et al) and Ministry of Community Safety and Correctional Services (2006) GSB #2004-1803 (Gray); OPSEU (Barillari) and Ministry of Community, Family & Children’s Services (2003) GSB #2002-2390 (Dissanayake); OPSEU (Moreau) and Ministry of Community Safety and Correctional Services (2005) GSB #2002-2536, 2002-2537 (Stephens); OPSEU (Singh) and Ministry of Community Safety and Correctional Services (2005) GSB #2001-1070 (Abramsky); and OPSEU (Group Grievance, Klonowski et al) and Ministry of Finance (2002) GSB #1799/99 (Fisher).

The Union urges me to decline to order further particulars. It suggests that the particulars furnished to the Employer are in some measure merely “narrative” leading up to the filing of the grievances. It argues that the essence of the case before me is that the grievor suffers from a medical condition related to her work at the Toronto Jail that requires accommodation. The particulars already provided are sufficient, in the Union’s submission, for the Employer to know that the grievor allegedly could not work at the Toronto Jail because of illness. If I am inclined to order the delivery of further particulars, the Union seeks an opportunity to address the timeframe for compliance with any such order.

In considering the Employer’s request for further particulars, I recognize that I may at some later point in these proceedings be asked to rule on the relevance and the admissibility of evidence which the Union may lead in an effort to prove what it refers to as “the narrative” leading up to the grievances before me. That said, to the extent that the Union seeks to rely on the alleged facts set out in the particulars, I accept that the Employer is entitled to full particulars of such assertions. I agree with the Employer that the Union has failed in some instances to provide such particulars, and has thus not fully complied with the June 2006 interim order.

The Employer addressed specific particulars which it suggests are lacking in sufficiency insofar as they fail to specify the “who, what, where and when” of the matters asserted. I accept the Employer’s argument that the Union has not provided full particulars with respect to paragraphs 8, 10, 11, 13, 14, 15, 16, 18, 36 and 37 of its September 29, 2006 correspondence, and I order the Union to provide further particulars where available.

I remit the question of timing for the delivery of further particulars to the parties but I retain jurisdiction to deal with such issue upon request of the parties.

The Employer in these proceedings referred to various decisions of the Board that address the repercussions of unexplained failure to comply with an order to deliver particulars. It noted that arbitrators have been prepared in the appropriate circumstances to dismiss grievances, or at the very least order that a party will be precluded from adducing evidence on matters not particularized. The Employer submits and I accept that the unexplained failure of the Union or the grievor to comply with the Board’s orders to deliver full particulars, may lead to what Vice-Chair Gray described in OPSEU (Degeer), supra, as “serious adverse consequences.” (at p. 5)

Production of Documents

The Union produced to the Employer six documents referenced in its September 29, 2006 correspondence. Employer Counsel submits that the Union has failed to fully comply with my June 12, 2006 interim order, however, and asks that I so declare. The Employer seeks compliance by the Union with my June 2006 interim consent order requiring production of all relevant documentation in the parties’ possession, and further production as well.

The Employer notes that the Union did not produce to it any of the correspondence that it had forwarded to the grievor. The June 2006 consent order requires the production of all relevant documentation in the parties’ possession. The Employer suggests that the Union is not excused from compliance with this order solely on the basis that it believes certain documents to already be in the Employer’s possession. The Employer argues that all relevant documents must be produced, and asks me to so order.

Further, the Employer notes that although it was asked to extend the time limit for the filing of particulars in September 2006 to allow the grievor an opportunity to locate a personal diary that contained relevant entries, no diary was produced. The Employer seeks an order that the grievor and the Union produce the grievor’s diary. As the Union asserts that the diary contains in part entries not relevant to the subject matter of these proceedings, Counsel suggests that he and the Union’s representative, or alternatively, I can review the diary to determine which excerpts are arguably relevant.

The Employer also notes that the parties met on July 8, 2005, with four representatives of the Union present. It believes that notes were taken by Ms. Janet Holowka, an OPSEU official, and Mr. Croisier, the Local President. The Employer seeks an order that the Union produce such notes, as well as any notes taken at this meeting by the grievor and by her partner, Mr. Cole.

The Employer refers to the particulars furnished by the Union, and to the November 14, 2006 medical report of Dr. Hull. Counsel asserts that the grievor’s medical condition and her mental health status have been placed in issue by the Union here, and that further medical documentation should be produced as arguably relevant.

The Employer seeks the decoded OHIP summary relating to the grievor, together with supporting documents, for the period from 1989 to the present.

The Employer notes that the Union has produced correspondence from the grievor’s now deceased family physician, Dr. Price. It takes the position that such correspondence together with Dr. Price’s clinical notes are inadmissible in these proceedings. The parties were in agreement, however, that such objection should not be addressed until a later point in the proceedings. The Employer presently seeks an order that the Union must nonetheless produce Dr. Price’s medical file as it pertains to the grievor’s mental health status from January 1, 2003. In addition, it seeks any notes or documents received by Dr. Price regarding the grievor’s mental status as it relates to anxiety of driving, claustrophobia, panic attacks, heart palpitations, headaches, nervous breakdown and stress from 1989 onward.

The Employer also seeks an order that the Union produce Dr. Hull’s medical file pertaining to the grievor. It maintains its position, however, articulated in its November 28, 2006 e-mail to the Union that Dr. Hull’s November 2006 report and his notes are inadmissible in these proceedings.

Counsel notes that the Union’s particulars refer to an independent medical examination of the grievor in June 2004. The Employer, I am told, has only a summary of the IME report, but not the final report itself. It seeks production of same.

Similarly, the Union’s particulars (paragraph 23) reference the grievor’s application for W.S.I.B benefits. The Employer seeks an order that the Union produce such application and supporting documentation. In addition, the Employer suggests that the grievor applied for LTIP, and it seeks such application and supporting documentation as well.

The following arbitral authorities are relied upon by the Employer in support of its position that further production should be ordered here: Re National-Standard Co. of Canada Ltd. and C.A.W., Loc. 1917 (1994), 1994 CanLII 18625 (ON LA), 39 L.A.C. (4th) 228; Re Budget Car Rentals Toronto Ltd. and U.F.C.W., Loc. 175 (2000), 2000 CanLII 50165 (ON LA), 87 L.A.C. (4th) 154; OPSEU (Richard) and Ontario Clean Water Agency (2005) GSB #2000-1220 (Abramsky); Re Oliver Paipoonge and LIUNA, Loc. 607 (1999), 1999 CanLII 35857 (ON LA), 79 L.A.C. (4th) 241 (Whitaker); Re West Park Hospital and ONA (1993), 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160; Re Becker Milk Co. Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Loc. 647 (1996) 1996 CanLII 20358 (ON LA), 53 L.A.C. (4th) 420 (Joyce) and ATU (Blake) and Toronto Area Transit Operating Authority (1988) GSB # 1276/87 (Shime).

The Union’s representative indicates that he understands that the grievor “gave everything she had” to the Union, and that the Union in turn fully disclosed such materials to the Employer. The Union’s representative noted, however, that he was prepared if directed to once again check the Union’s records in this regard.

The Union states that there is no basis upon which I should order production of documents to the Employer already in the Employer’s possession.

The Union’s representative stated that he was prepared to make inquiries of Ms. Holowka and Mr. Croisier to determine if they have notes of a July 8, 2005 meeting between the parties regarding the grievor, and to produce same if they exist.

The Union does not deny that it sought an extension of time for delivering particulars and productions to the Employer to permit the grievor the opportunity to locate a diary that included information relevant to these proceedings. The Union’s representative notes that the grievor objects to producing the diary. In the event that I am inclined to order the diary produced, the Union asks that I review the diary in its entirety to determine which, if any, excerpts are relevant to these proceedings.

The Union challenges the Employer’s request for further production of medical records. Its representative suggests that “arguable relevance” is not an adequate basis upon which to order such production, and that a higher standard is contemplated in the arbitral jurisprudence before production of medical records, and particularly psychiatric records, is ordered.

The Union notes that it has produced the November 14, 2006 report of Dr. Hull, and suggests that the doctor’s clinical notes would add nothing.

The Union notes that the grievor’s former family physician, Dr. Price, is now deceased. Its representative advises that he will ultimately ask me to admit Dr. Price’s reports in these proceedings, but argues that his clinical notes need not be produced, as they may be prejudicial given the fact that the doctor cannot be called to testify. He relies upon the decision in McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] S.C.J. No. 57 in support of the Union’s position.

The Union submits as well that the Employer’s request for a decoded OHIP summary amounts to a fishing expedition and should be rejected.

The Union notes that the grievor went for an IME in June 2004. Its representative advises that he has not seen the IME report. The Union points out, however, that the Employer did not have the IME report at the time that the grievor’s employment was terminated. As stated above, the Employer argues that Dr. Hull’s November 2006 report is not admissible, as it was prepared after the termination of the grievor’s employment. The Union suggests that if that rationale should ultimately be accepted when argued, the same should apply to the IME, rendering it inadmissible as well. The Union’s representative argues that it would not then be appropriate to order that the IME report be disclosed at this time in these circumstances.

Again, to the extent that I am prepared to order further production, the Union seeks the opportunity to address the time limits for compliance with any such order.

After considering the submissions of the parties and the authorities relied upon, I am of the view that certain production orders are appropriately made at this time.

In addressing the specific production requests made by the Employer in these proceedings, I wish to be clear, however, that the parties agreed to the terms ultimately incorporated, on consent, in my June 2006 interim order. They are bound to comply with that order, and to the extent that the parties are in possession of documentation relevant to the grievances, they have agreed to produce same, and remain obliged to do so. Nothing herein should be understood as excusing either party from compliance with such order.

I further order the Union and the grievor to produce to the Employer any notes taken by the grievor, her spouse, Ms. Holowka or Mr. Croisier at a July 8, 2005 meeting between the parties relating to the grievor.

I order the grievor to produce to the Union’s representative and to Employer Counsel her personal diary which I am advised contains entries relevant to these proceedings. I recognize that the said diary may contain references irrelevant to the matters here in dispute, and that the Union expressed the preference that the diary be produced to me for my review.

It seems to me that at this stage of the proceedings, it is the parties’ representatives who should review the diary and endeavour to agree upon those portions thereof that are arguably relevant to the grievances before me. In the event that they are not entirely successful in doing so, however, I retain jurisdiction to make any necessary rulings upon request of the parties. The order to produce the diary to Employer Counsel is made upon the same conditions imposed by Vice-Chair Abramsky in OPSEU (Richard), supra, with respect to a decoded OHIP summary. That is, absent agreement of the Union or further order of this Board, Employer Counsel and one advisor only may review the diary. No copies of the diary can be made, and finally, the diary may be used and its contents may be disclosed only to the extent necessary for purposes of these proceedings.

The Employer seeks further production of medical documentation. It suggests that the grievor’s medical status has clearly been placed in issue by the Union and that the documents it seeks are arguably relevant and should be produced. Specifically, the Employer seeks a copy of the report of the independent medical examination conducted in June 2004, copies of the grievor’s application for WSIB and LTIP benefits, together with supporting documents, a decoded OHIP summary, and Dr. Price’s and Dr. Hull’s medical files pertaining to the grievor.

Without prejudice to the Employer’s right to request production of these materials at a later point in these proceedings, I am not prepared to order that the Union and grievor produce them at present unless already encompassed by the terms of the parties’ consent order.

In reaching this conclusion, I have carefully considered the arbitral authorities relied upon by the Employer, and particularly the decision of Arbitrator Whitaker in Re Oliver Paipoonge and LIUNA, supra. After reviewing the arbitral jurisprudence pertaining to production of medical records, Arbitrator Whitaker noted:

“Firstly, the production of medical information generally . . . should only be made where it is clear that the fact of the grievor’s health is being put in issue by the union, or, where the employer needs the information sought to prove its case….

The second proposition revealed by these awards is that where mental health records are in issue, some, higher standard than ‘arguably relevant’ should apply in determining whether they should be produced. . . .

The third proposition found in these awards is that an arbitrator should decline to order the production of medical records until the point in the proceedings where the information in fact becomes necessary. In other words, such a production request by an employer may be premature where it is the case that such records or information “may” only become necessary at some later point. . . .

Although I have broken out three separate propositions from the awards reviewed here, the essence of the reasoning in issue is at bottom, the same. The obligations to produce mental health records and to submit to a psychiatric examination are prima facie highly intrusive…. In recognition of this reality, it appears arbitrators have fairly consistently said that such inquiries will only be undertaken at the point in time when they are in fact necessary or essential for purposes of the adjudication of the grievance.” (at pp. 244-245)

I agree with such analysis. I recognize that the Union has expressly placed in issue the grievor’s medical status in the present case, and has produced certain medical reports. In the circumstances before me, however, I am not satisfied that the further production sought by the Employer should be ordered at this time. The Employer has indicated here that it will take the position, not yet argued, that the medical records of Dr. Price and the November 2006 report and the “notes” of Dr. Hull are inadmissible in these proceedings. I recognize that it is only the request for a production order that need be decided now, and not the ultimate admissibility in these proceedings of the evidence in question. I am of the view that it would nonetheless be inappropriate to order the broad disclosure of Dr. Price’s and Dr. Hull’s records sought by the Employer at this stage where the Employer’s objections regarding admissibility of same have yet to be argued. The Union suggests as well that if the Employer successfully convinces me that Dr. Hull’s November 2006 report should not be admitted on grounds that it was not available at the time that the decision to terminate employment was made, the same rationale arguably would apply to the IME report also not available to the Employer at the time of termination. Again, I am not satisfied that an order to produce such report at this time is appropriate under these circumstances. The Employer seeks a decoded OHIP summary for the grievor. I am not convinced based on what I have heard to date that such order is at present warranted. Finally, the Employer seeks copies of the grievor’s WSIB and LTIP applications and supporting documentation. It is not clear whether or not the reports of Dr. Price and Dr. Hull referred to above are the supporting documentation in issue, and thus, for the reasons set out above I am not satisfied that such production should be ordered at present.

To be clear, it may well be that any or all of the orders sought by the Employer for further medical documentation may be properly made at some later point in these proceedings, and my decision not to grant such orders at present is without prejudice to the Employer’s right to renew its request as it considers necessary.

To the extent that further production has been ordered as set out above, I again remit to the parties the question of the appropriate timeframe for compliance with such orders, and failing agreement, I retain jurisdiction to issue any further direction required.

Again, as requested by the Employer, I note that the authorities referred to in these proceedings are clear that arbitrators in the appropriate circumstances have been prepared to dismiss a grievance in the face of unexplained noncompliance with a production order. Should the Union or the grievor fail to fully comply with the June 2006 interim order or the orders set out herein, it will of course be open to the Employer to argue before me the consequences that properly flow from any such breach.

I retain jurisdiction over these grievances, and the hearing will resume as scheduled.

DATED AT TORONTO, ONTARIO this 22nd day of December, 2006