GSB#2013-0723

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario

(Szewczyk)

Association

• and -

The Crown in Right of Ontario

(Ministry of Environment)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Stephen Krashinsky

Sack Goldblatt Mitchell LLP

Barristers and Solicitors

Counsel

FOR THE EMPLOYER

Lisa Compagnone

Ministry of Government Services

Legal Services Branch

Counsel

HEARING

January 10, 2014

Decision

1This is a discharge case. The Association made a limited opening statement. The employer deferred making any such statement, but, in view of the position advanced by the Association, sought an order for the production of certain medical information prior to the continuation of the hearing in this case, some eight months from now in September 2014. This decision relates to that request.

2For the purposes of this decision, I rely on the facts as asserted by the Association (in fairness, counsel made every effort to identify where facts would likely be in dispute). I also rely on a limited number of documents filed as exhibits on consent of the parties. These included two medical reports from the complainant’s family physician. The first is a one page report dated January 30, 2013. This report was in the employer’s possession when it determined, on February 27, 2013, to terminate the complainant’s employment. The second is a two page report with seven pages of attachments. It is dated September 13, 2013, some seven months after the termination.

3It is important to note that any reliance upon facts adverted to herein is solely for the purpose of the instant decision. Neither party should necessarily be seen as being prevented from adducing additional, even contrary facts, in the ultimate litigation of the matter.

4I do not intend to review the grounds for termination in any detail. It is sufficient for our purposes to note that this was a disciplinary discharge. And although the complainant had no prior discipline on file, the employer was of the view that the alleged misconduct was sufficiently grave to warrant termination. In its opening, the Association advanced, broadly speaking, two assaults on the propriety of the termination. The first is quite simple: even assuming the complainant did all the things the employer has alleged (and there may, ultimately, be little dispute on the point) and even if some discipline was warranted (and, at least on this branch of the Association’s case, they may be little dispute on this point either), discharge was too severe a penalty and should be modified to one which preserves the employment relationship.

5The second branch of the Association’s case, as identified in opening statement, is more complicated. Again, I will refrain from elaborate detail. It is sufficient to note that the Association asserts that the complainant was suffering from (at least one) mental health disability at the material times and that there was a nexus between that disability and the conduct which gave rise to the termination. In that context, the complainant’s conduct cannot properly be characterized as culpable and the employer’s decision to discharge for culpable misconduct is fundamentally flawed. And the employer, having received the first of the two medical reports adverted to earlier was aware or, at a minimum, was put on notice of the possibility of a disability requiring its attention. Despite that the employer paid inadequate attention to this information and inappropriately forged ahead with a disciplinary discharge. Further, any doubt about the existence of the disability and its relationship to the complainant’s impugned conduct is fully answered by the more recent of the two medical reports.

6It is this latter set of assertions which provokes the employer’s request for the production of certain medical information. Essentially, the employer disputes that the first medical note was sufficient to establish the existence of any disability and, perhaps more importantly, the existence of any causal connection between the disability and the conduct that gave rise to the discharge. And, apparently neither is its scepticism in that regard assuaged by the second medical report. Indeed, the employer signals that its consent to mark the two medical reports as exhibits is subject to its right to insist that their author be made available for cross-examination. This is an evidentiary battle to be fought, if need be, on another day.

7In the interim, however, the employer submits that since the complainant has put his health in issue, by asserting the existence of a disability, the Association ought to produce, by order of this Board, if necessary, all relevant medical information related to the claimed disability.

8The Association resists the production. It is fair to say, however, that the Association’s resistance perhaps relates more to timing than principle. There was no dispute with the general proposition that where an employee’s health is placed in issue by the employee or his/her bargaining agent, an employer will be entitled to the disclosure of relevant medical information. The Association urges, however, that, in the present case, the employee’s health has not (at least yet) been put in issue. That will not happen, unless and until, the Association opts to call medical or other evidence that puts the question of the employee’s health in issue. And that will not happen until after the employer puts in its case. The employer has proceeded with a disciplinary discharge. It will be required to proceed first to establish the basis for the termination. It, presumably, will not raise any health related issue. Once the employer calls its case, the Association will decide what evidence, if any, it intends to call. It may elect to call no evidence at all, in which case any production ordered at this stage in the proceedings may prove to have been both premature and unnecessary.

9I am unable to adopt the Association’s position. First and perhaps the simplest answer is that the two medical reports in question have already been marked as exhibits in these proceedings, thus the complainant’s health has already been put in issue. But even apart from that, the Association has clearly expressed its view that the complainant was, at the material times, suffering from a disability. While there is, strictly speaking, a theoretical possibility that the Association will opt to decline to call any evidence supporting that assertion, that is a likelihood that would, based on the Association’s opening remarks, appear very far from probable.

10Among the cases referred to, the Association pointed to Jones and Ministry of Community Safety and Correctional Services PSGB-2005-3536 (Leighton), as providing support for the delay of any production until after the employer has put in its case. The production in that case was to be made one month prior to the start of the complainant’s case. What that meant precisely in the scheduling and unfolding of the hearing in that case is not clear – the Board merely observed that counsel would be best placed to estimate the timeline. What is clear from the decision, however, is that the employer was scheduled to commence or continue its case some two to three weeks after the date of the decision. Thus, to require production to have been completed before the hearing continued may well have placed scheduled hearing dates in jeopardy.

11Whether, to what extent and on what conditions production of sensitive medical information will be directed are matters to be considered in the specific circumstances of individual cases. Had the employer in our case been scheduled to commence its case within two or three weeks, I might have taken a different view of directing production be effected prior to the continuation of the hearing, particularly if such an order might have resulted in an adjournment of scheduled hearing days. In our case, however, there are many months until the next scheduled day of hearing. In view of the limitations I will shortly place on the extent of the production order sought by the employer, it may be that production will be an ongoing process, one which need and, in my view, ought not await the conclusion of the employer’s evidence. Both parties will be better served by the full disclosure of medical evidence. Indeed, neither would I preclude the possibility that such disclosure may permit the parties to examine the case afresh and thereby reassess not only their strategic litigation choices, but perhaps even the possibility of settlement options.

12The employer has sought a very broad production order though, in fairness, not as broad as it might have been. I am not persuaded (at least not yet) that there is any need to search medical records for the decades the employer seeks. I will therefore restrict my order to the following. The Association is to produce the following:

1. From Dr. Vavougios:

• Dr. Vavougios’ clinical notes insofar as these are relevant to the complaint’s mental health issues and treatment.

• Any diagnostic testing results or specialist reports upon which Dr. Vavougios relied in the preparation of his reports dated January 30, 2013 and September 13, 2013.

• A list of all physicians, specialists or service providers who have been involved in the care and treatment of the complainant while he has been under Dr. Vavougios’ care.

2. From Windsor Regional Hospital: All relevant material contained in the files retained by the Problem Gambler Program at the Windsor Regional Hospital, including any relevant material contained in the file of any related psychiatrist.

13This order will be subject to the usual undertakings, the specific terms of which I leave to counsel. I also trust that counsel will cooperate to seek the most reasonable and economical manner of effecting the production directed herein. If there are issues regarding either of these points, I may be spoken to.

14Finally, this order does not preclude the employer, once it has had the opportunity to review the relevant documents, from seeking further production should the need arise.