GSB#2008-3753

UNION#2008-0502-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Louis)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

August 18 and October 27, 2011.

Decision

The Proceedings

1This Decision deals with evidentiary matters. The allegations herein include that the grievor was the victim of racial discrimination at the hands of co-workers. She says that she brought these concerns to the attention of her manager to no avail. The Union put the Employer on notice that it may seek to call evidence of another employee to the effect that they too brought such allegations to the same manager’s attention, again to no avail. The Employer objects to the introduction of such evidence.

2This Decision also deals with a request by the Employer that the grievor provide disclosure of her attending psychiatrist’s clinical notes and records, given that the relief claimed includes a claim for damages said to have arisen from the nexus between the manager’s actions and her medical condition.

3Finally, in the course of dealing with the alleged incidents at the time, the grievor contacted members of the Ontario Provincial Police and made complaints against some of her co-workers. The Employer seeks disclosure of the O.P.P. records in that regard. The Union does not resist that request. Accordingly, that Order will go as asked.

Issue #1: The Manager’s Propensity

4The Employer submitted that the only purpose of leading the evidence of the other employee is to establish that the manager was likely to have behaved in a similar fashion here. It is a form of similar fact evidence, the probative value of which is outweighed by its prejudicial effect. It is not related to the claims here and would greatly expand the scope of these hearings without adding probative value.

5The Union submitted that the general environment within which harassment and racial discrimination occurs is relevant, and the proposed evidence would support a finding that the manager did not help the grievor. The Union submitted that because racial discrimination is difficult to prove, wider latitude should be given in tendering general evidence; it goes to the grievor’s allegation that there was a poisoned work environment.

6In reply, the Employer submitted that the evidence is only being tendered to show the manager’s propensity to have engaged in the conduct alleged, which is not supported by the authorities.

Reasons for Decision on Issue #1

7The evidence sought to be introduced by the Union is to the effect that, like the grievor, a co-worker did not receive training. Others criticized the quality of her work at a meeting. The grievor rose to her defence, but the manager took no action. The co-worker believes that the lack of training and events at the meeting were racially motivated. The evidence is being led to establish that the manager has a propensity not to deal with such events, as is alleged here.

8In my view, this evidence is only being led to establish such a propensity. Accordingly, it is inadmissible. In OPSEU (Deprophetis) and Ministry of Labour GSB 2008-3994 (Dissanayake) the Board said the following at paragraph 7:

Now I turn to the second aspect of the proposed evidence to the effect that Ms New interfered with MP’s decision-making authority also. Union counsel characterized this as “admissible similar fact evidence”. While this Board is not bound by strict rules of evidence applied by courts of law, those rules have a rational basis and are helpful in the exercise of the discretion the Board has. Similar fact evidence that shows only that an individual is the type of person likely to have engaged in the conduct alleged is inherently fraught with danger, In criminal law, this has been described as “one of the most deeply rooted and jealously guarded principles” Maxwell v. D.P.P., [1935] A.C. 309 at 317 (H.L.). Similar fact evidence to become admissible, must meet the initial test that it has relevance for some purpose other than that it tends to show that the individual was the type of person likely to have engaged in the alleged conduct.

Issue #2: Disclosure of Medical Records

9To reiterate, the Union says that the grievor suffered racial discrimination at the hands of her co-workers, and the Employer did not intervene. She was denied a safe and healthy work environment. The grievor seeks damages for pain and suffering. She says that her psychiatric illness was caused by these events. The relief claimed includes that the Employer pay for professional counseling to treat these ills, and the grievor seeks reimbursement for vacation days she used to top-up days she took as sick leave at a reduced rate of pay.

10The Employer seeks disclosure of all arguably relevant documents in the possession of the grievor’s treating physicians. The Employer says that the documents are relevant to the remedies claimed by the grievor.

11The Union says that the grievor’s psychiatrist will provide a report, which should be sufficient disclosure. It resists disclosure of the psychiatrist’s clinical notes and records and any reports from the psychiatrist to the grievor’s general practitioner; it says that her medical privacy should be respected.

12In reply, the Employer submitted that the grievor has put her health into issue, and the documents requested must be produced because they are arguably relevant to that issue.

Reason for Decision on Issue 2.

13As was the case in Jones and Ministry of Community Safety and Correctional Services PSGB-2005-3536 (Leighton) the grievor here has put her mental health at issue. She claims general damages for the impact the Employer’s actions have been said to have had on her mental health. Thus, the psychiatrist’s notes and records and the notes and records of her treating physicians pertaining to her mental health are arguably relevant. “While privacy concerns here are still valid, it is also necessary to balance the Employer’s rights to natural justice and a fair hearing.” (Jones at paragraph 10). However, confidentiality conditions are appropriate. Only counsel for the Employer and one advisor may review the documents, no copies are to be made and the documents may only be used for the purposes of the current complaints. Any variation to these terms may be spoken to.