Re The Crown in right of Ontario (Ministry of Children and Youth Services) and Ontario Public Service Employees Union

[Indexed as: Ontario (Ministry of Children and Youth Services) and O.P.S.E.U. (Hyland) (Re)]

File Nos. 2005-2549; 2005-2550; 2005-2561 Ontario Crown Employees Grievance Settlement Board K. Petryshen

Heard: April 10, 2006 Decision rendered: April 20, 2006

INTERIM AWARD

In previous decisions I have addressed grievances filed by Mr. Hyland in which he claimed that the Ministry of Correctional Services had failed to accommodate him properly. Mr. Hyland has asthma and is particularly sensitive to cigarette smoke. In a decision dated June 21, 2004, I directed the Employer to place Mr. Hyland in a position at the Brookside Youth Centre ("Brookside") where he is employed now as a Youth Service Officer. Brookside is now within the Ministry of Children and Youth Services. Mr. Hyland has filed accommodation grievances at Brookside. Prior to the hearing on April 10, 2006, the parties attempted to resolve certain production issues, as well as issues about particulars. The discussion of these matters continued at the hearing. One issue that the parties did not resolve concerned the Employer's request for medical documentation. Counsel made submissions on this matter at the hearing and this decision addresses that issue.

The particulars provided by the Union indicate that Mr. Hyland's complaint has two features. The first is that Brookside's smoking policy does not provide adequate protection for his disability. Mr. Hyland takes the view that a policy which only prohibits "smoking in the presence of youth, in all buildings on the facility property and in Ministry vehicles" is inadequate. He takes the position that the Ministry should adopt a policy prohibiting smoking on facility grounds, like the policy that applies to adult correctional institutions. The second feature of Mr. Hyland's complaint is that the Brookside policy is not being enforced. He asserts that he has witnessed smoking in prohibited areas and that he has been exposed to cigarette smoke on a number of occasions. The particulars refer to instances where Mr. Hyland was absent from work because of exposures to cigarette smoke. There are a couple of occasions where it is alleged that Mr. Hyland was absent due to stress attributable to the regular exposure to cigarette smoke and the lack of action by management to deal with the problem. Mr. Hyland is alleging, in effect, that his experience at Brookside is not unlike the experiences he had at the Toronto East Detention Centre and the Toronto Jail in that his health has been affected detrimentally by exposures to cigarette smoke resulting in absences from work. Medical evidence tendered in earlier proceedings indicated that limited exposure to cigarette smoke could trigger an asthmatic reaction for Mr. Hyland.

The Employer's request for medical documentation has two aspects. It requests that Mr. Hyland provide a decoded OHIP summary covering the period from June 1, 2004 to the present, the time Mr. Hyland has been at Brookside. It also requests for the same period the clinical notes and records of any medical practitioner, specialist and therapist that Mr. Hyland has seen.

Counsel for the Employer submitted that this request is reasonable in the circumstances. He noted that the request focuses on a brief period and argued that it is necessary because Mr. Hyland's health is a critical feature of this dispute. Counsel argued that the Employer is entitled as a matter of fairness to obtain a complete picture of Mr. Hyland's health and that the documentation requested is arguably relevant having regard to the issues in this case. In support of the Employer's position, counsel placed considerable reliance on Re Ontario (Ontario Clean Water Agency) and O.P.S.E.U. (Richard), GSB 2000-1220 (Abramsky) dated June 20, 2005 [reported 141 L.A.C. (4th) 329]. Counsel also referred to the following decisions: Derynck v. Chevalier Estate, [2002] O.J. No. 641 (QL), 111 A.C.W.S. (3d) 1102 (S.C.J.), Re Ontario (Ministry of Transportation) and O.P.S.E.U. (Vangou) (2005), [138 L.A.C. (4th) 58 (Dissanayake)], Re Greater Essex County District School Board and O.S.S.T.F, District 9 (Lebert) (2002), [109 L.A.C. (4th) 379 (Knopf)], Re University of Saskatchewan and University of Saskatchewan Faculty Assn. (Caulkett) (2002), [107 L.A.C. (4th) 115 (Pelton)], and Re Toronto District School Board and C.U.P.E., Loc. 4400 (2001-B-01) (2002), [109 L.A.C. (4th) 20 (Shime)].

The Union does not dispute that Mr. Hyland's health is an issue in this proceeding and that the Employer is entitled to some medical documentation for the period suggested by the Employer. However, counsel for the Union took the position that the breadth of the Employer's request is extreme and unnecessary in the circumstances of this case. Counsel argued that the balancing of Mr. Hyland's right to privacy and the Employer's interest in securing arguably relevant medical information could be met without providing the Employer with Mr. Hyland's complete medical history since June of 2004.

Counsel noted that Mr. Hyland has other medical issues that are unrelated to this dispute. He has not been absent from work because of the other medical issues and he has not made a claim against the Employer with respect to them. Counsel argued that the primary issue in this case, as it was in other proceedings involving Mr. Hyland, is whether the Employer has taken reasonable precautions for his safety, given his disability. He submitted that this should be the focus of any order to produce medical documentation. Counsel also submitted that the facts in Re OPSEU (Richard), supra, are fundamentally different from the facts in this proceeding and therefore this matter warrants a different approach. As an alternative to the Employer's request, counsel submitted that a medical report that is responsive to specific questions could be obtained from Mr. Hyland's family doctor. Without setting out all of the questions counsel proposed to ask the doctor, the report would focus on any treatment the grievor received for asthma, for exposures to cigarette smoke, for exposures to cats and dogs and any treatment relating to stress. The doctor would be asked to provide detailed information on these matters. Counsel argued that this approach would satisfy the interests of both parties.

Since both counsel focused on Re OPSEU (Richard), supra, I will review this decision in some detail. The Union claimed that due to harassment at the workplace between February of 1998 and mid-2000, the grievor was unable to work because of illness caused by stress and anxiety. It was clear that the grievor had experienced stress and anxiety, including panic attacks, predating the allegations against the employer. The employer requested the grievor's decoded OHIP summary from January of 1996, two years prior to the first alleged occurrence at work, until May 2005. It argued that the grievor's physical and mental health were in issue and the summary was needed to disclose the medical assistance sought by the grievor and to provide a complete picture of the grievor's pre-existing condition. In ordering disclosure of the grievor's OHIP summary, the Vice-Chair wrote as follows [pp. 333-34 L.A.C.]:

... 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 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 his 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 in 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.

The issue for determination as framed by counsel is whether the Employer is entitled to an order directing Mr. Hyland to produce documentation about his entire medical history from June 1, 2004. In dealing with this issue, it is necessary to balance Mr. Hyland's interest in not disclosing personal and confidential medical information with the Employer's interest in obtaining disclosure of arguably relevant medical information that is necessary to defend the grievances. After considering the submissions of counsel, it is my conclusion that the Employer's request is too invasive and that it is not warranted having regard to the facts and the issues in this case. Mr. Hyland again complains that the Employer, albeit at a different institution, has failed to accommodate properly his asthmatic condition. He claims that he continues to encounter cigarette smoke, and perhaps other allergens, in the workplace and that these exposures have caused adverse reactions resulting in absences from work. Therefore, the issues in this proceeding appear to focus primarily on Mr. Hyland's exposure to cigarette smoke in the workplace and stress arising from these circumstances.

As Vice-Chair Abramsky noted in Re OPSEU (Richard), supra, each case depends on its own facts and it is not always the case that a grievor will be required to disclose his or her entire medical history upon alleging that the employer's misconduct caused illness. I agree with the submission that the circumstances of this case are significantly different from those in Re OPSEU (Richard), supra. In contrast to the grievor in that case, Mr. Hyland is not making a generalized claim which places his entire medical history in issue. There is not an issue about causation like there was in that case. The Employer has not identified any defense which demonstrates that it is necessary for the Employer to have access to documentation relating to Mr. Hyland's other medical issues. Accordingly, I find that counsel for the Union's proposal is preferable in the circumstances. I therefore direct Mr. Hyland to provide the Employer with a medical report from his family doctor which responds to the questions counsel indicated at the hearing that he would ask the doctor. As counsel for the Union offered at the hearing, he shall review these questions with counsel for the Employer, and consider any suggestions he may have, before sending the doctor the request for a medical report. The general purpose of the medical report will be to address issues relating to Mr. Hyland's asthmatic condition, his absences from work and any stress related problems that he has reported and the cause of such problems.