GSB# 2010-2380

UNION# 2010-0224-0031

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lefkowitz)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Eric del Junco Counsel

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Counsel

HEARING

February 21, 2013.

Decision

1The grievor, Marsha Lefkowitz is a Registered Nurse who worked at the Owen Sound Jail until its closure. During the course of her employment she filed a grievance that alleged various violations of the collective agreement and statute as a result of being verbally assaulted by the Operational Manager. It was said by the Union that the incident constituted an egregious act of misconduct causing significant emotional harm.

2By way of remedy the grievor is seeking, amongst other things, an amount of fifty thousand dollars in general damages for the “stress, embarrassment humiliation and violation of her rights.”

3The Union has put the Employer on notice that it intends to call the grievor’s physician to testify. A reporting letter from Dr. John S. Lindsay was provided to the Employer. It was stated therein that Dr. Lindsay is a medical doctor with a practice limited to mental health and psychotherapy. He saw the grievor for a period in 2003 and 2004 and again in 2011 after the incident that gave rise to this grievance. His report is an account of his experience treating the grievor.

4After receiving the reporting letter the Employer requested production of Dr. Lindsay’s clinical notes regarding the grievor’s mental health from 2003 to present. The Union took issue with aspects of this request.

5This decision deals only with the issue of whether the clinical notes of Dr. Lindsay from the 2003 and 2004 period should be given to the Employer. The Union does not suggest that the clinical notes beginning in 2011 are inappropriate for production.

6It was the Employer’s contention that because the Union is asserting that the incident at issue in this matter has caused damage to the grievor’s mental health, it is entitled to know the complete medical history known to Dr. Lindsay. It was stated in the Medical Report that the grievor had a pre-existing condition of Post Traumatic Stress Disorder. Dr. Lindsay also wrote that the PTSD was triggered again by the incident. Accordingly, the Employer said, the facts leading to that initial diagnosis and treatment are highly relevant to the matter at hand.

7The Union asserted that the clinical notes from the grievor’s treatment in 2003 and 2004 cannot shed any assistance on what harm occurred in 2010 and for that reason it should not be produced to the Employer. The earlier clinical notes deal with issues that are historical and personal and therefore cannot assist in the Board’s determination of this grievance. The material must be necessary and essential and not merely arguably relevant. The Employer’s request does not meet that accepted arbitral test in the Union’s view.

8In the alternative, it was the Union’s position that the “personal information pertaining to the grievor, her family and any third parties which is not material to the issues in this case” should be redacted.

9As set out in Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Jones) GSB#2005-3536 (Leighton), and in other decisions from this Board, where the grievor has put her mental health at issue and has indicated that a psychiatrist (or psychotherapist in this case) will give evidence, the notes and records of that attending physician pertaining to the grievor’s mental health should be produced to the Employer. I am of the view that it is particularly necessary in this case to disclose the clinical notes from 2003 and 2004 because of the grievor’s pre-existing condition.

10The Union noted that much of the information found in the clinical notes is highly personal and private. I am sympathetic to the grievor’s concern regarding an invasion of her privacy but I am of the view that the Employer’s right to a fair hearing outweighs that concern.

11The Employer stated in its request for production that it was content to be held to the conditions set out in Re Jones (supra). Accordingly, one copy of the file will be sent to Mr. Dailleboust. He is allowed to have only one advisor review the file. None of the documents can be copied. Finally, the documents can be used only for the purpose of this matter and the entire contents of the file shall be returned to the grievor upon completion of this litigation.

12I expect that this information can be produced in sufficient time so as to allow this matter to continue on our next scheduled hearing day. If there is a problem in that regard, the Board should be notified.