7b:I[968242,["/_next/static/chunks/0b_72f-e25kv0.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2dqzcpp0iv_65.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2-gzvss-l6hsb.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0_th5qbdbp7fv.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/3pxtaj7c8rs55.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/1fr-v8sx5ap_7.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2_zpbictxcli5.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2yad5-4ibvk0m.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0rilgbl3o5bv-.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/21ewgwknlgeas.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2ov37zop16n27.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0tof0ca8-y5uc.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/3sl10ogzeq_4f.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/1oye9k9wdtez4.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2qpeh4lw4hds4.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/23d_j_uhqaepb.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2qthtgzpqespl.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/2ey3x-m-xrf30.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/1l1-kbc27ddmr.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/06sx6w4g9hwyu.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/3abc7e_uryvi3.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0257p7bsqes76.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0hfvn4ww_ph62.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/15-zu1noqxrht.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0ovufyqn1ws-o.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/08dzzn4r58_fn.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/0ce8qgl2n3g61.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs","/_next/static/chunks/3au34nv6rkr0s.js?dpl=dpl_H8fa34K2y3EDSTdf3i9FJMPaByNs"],"SidebarDataSetter"] 7c:T77da,GSB#2012-2508, 2012-2988, 2013-0597 UNION#12-64, 12-65, 13-32 ## IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD # BETWEEN Canadian Union of Public Employees - Local 1750 (Goulet) ## Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Joseph D. Carrier Vice-Chair FOR THE UNION Frederick Ho Canadian Union of Public Employees – Local 1750 Counsel FOR THE EMPLOYER Eric Kupka Workplace Safety and Insurance Board Counsel HEARING December 11, 2013; February 25, March 17, May 15, July 3, November 6, 2014; April 9, June 26, 2015 Decision [1] On June 26, 2015, Mr. Eric Kupka on behalf of the Employer pursued a motion in this matter to dismiss all grievances before me which were filed by or on behalf of Ms. Goulet. The Employer’s motion is premised on the non-compliance by the Union and the Grievor with two production orders issued by this Vice-Chair, the first in the November, 2014 and the second in April 2015. Briefly, it is the Employer’s position that non-compliance with those orders constitutes an abuse of this Board’s process which in the circumstances warrants dismissal of these proceedings. [2] For its part the Union, represented by Mr. Fred Ho, opposes the motion and seeks instead an adjournment of the matter sine die, that is, with no continuation date to be scheduled for the time being. [3] Attached as Schedule “A” to this Award is a copy of my Order dated November 19, 2014 directing the production of medical notes and records respecting the Grievor relevant to the issues in this matter. [4] On April 9, 2015 the matter reconvened at which time I was advised that there had been no compliance with that Order. Mr. Ho explained that the Union had been unable to produce the documents in accordance with the earlier order due to the Grievor’s reluctance to provide her consent to the release of her detailed medical records. Notwithstanding that reluctance, Mr. Ho, on advice from the Grievor, asserted that she was now prepared to provide that consent so that the Order could be fulfilled. [5] In the circumstances and in view of the Employer’s indulgence at that time, I verbally granted an extension to the Order together with specifics concerning the dates for delivery to the Union of the Grievor’s written consent as well as productions to be provided to the Employer. [6] That Order was subsequently reduced to writing in an Award dated April 15, 2015 a copy of which is attached as Schedule “B” to this Award. [7] It was clear in my verbal order and reiterated in writing that the Grievor’s consent was to be provided to the Union by April 17, 2015 with productions delivered to the Employer by May 15. Additionally there were safeguards built in to the Order to protect the Grievor’s privacy. Material received from doctors’ offices was to be vetted by counsel for relevance and admissibility with disputes to be referred to me for resolution. [8] Notwithstanding those protections for the Grievor and her earlier agreement to provide her consent in order to facilitate the production process, Ms. Goulet again failed to provide her consent to the release of the medical information as ordered. [9] It was clear during proceedings on June 26, 2015 that the Grievor had no current intention to provide her consent and that her refusal was deliberate. Further there was no indication from the Union or the Grievor suggesting that the Grievor had any intention to comply with the directions issued at some future point in time. [10] By way of explanation and in support of his submission that this matter should be adjourned sine die, Mr. Ho produced a “Report” dated June 23, 2015, three days before these proceedings, authored by a Dr. Sharleen McDowall, a registered psychologist. While the letter or report itself was relatively brief, I am reluctant to set it out in substance since it identifies the specifics of the Grievor’s diagnosis. It goes on to express the doctor’s views concerning the effect of these proceedings and others upon Ms. Goulet’s mental health. Most pertinent to the proceedings now before me is the doctor’s conclusion which reads as follows: As such, Ms. Goulet has been processing her feelings of violation in therapy and therefore it would not be in her best interest at this time to consent to disclose all records and clinical data related to her mental health condition. In fact, the release of ten years of medical history would compromise the current psychological treatment. THE DISCUSSION AND DECISION [11] As outlined in the introduction to this Award, Mr. Kupka took the position that the failure to comply with the Orders constituted an abuse of the Board’s processes and warranted a dismissal of the grievances before me. With respect to the recently received “medical report”, it was his position that it should neither be admitted in these proceedings or relied upon in any way to rationalize a further adjournment. Indeed, since it was produced as late as the eve of the January 26^th hearing, he has had no opportunity to consider its ramifications nor, more importantly, to require the attendance and examination of the author which in this case he would clearly require in order to address the issues that letter raised. [12] For his part, as indicated earlier, Mr. Ho argued that the circumstances here, in particular, the Grievor’s mental status at the time of this hearing warranted an adjournment sine die, that is, with no continuation date set, to allow the Grievor time to adjust to the proposition of exposure of private information concerning her mental health. That position, Mr. Ho argued was reinforced by the medical report tendered at this time. [13] In addition to the foregoing, a supplementary issue arose concerning whether or not a dismissal of proceedings, if granted, should be ordered with or without prejudice to the Grievor’s rights to pursue the merits of her grievances in another forum. That issue was not a matter of significant disagreement between counsel. In the circumstances, I confirm my view that a dismissal, if ordered as requested here, would be granted neither “with” nor “without prejudice”. It would simply be a dismissal. That decision would no doubt be viewed as final by this Tribunal should there be any attempt to have it brought on again before the Grievance Settlement Board. On the other hand, the determination as to whether or not the dismissal here in these circumstances would be prejudicial before some other forum, such as the Human Rights Tribunal of Ontario, would be a matter for determination in that forum. Jurisdiction here does not extend to making such a determination which might undermine the authority of a tribunal having concurrent jurisdiction regarding the issues raised. I arrived at a similar result in another matter before this Board between the OPSEU (Amurao) and the Crown in Right of Ontario (Ministry of Community and Social Services) GSB No. 2010-0007, 2010-0029, which was released on the 23^rd day of May 2012. In that award I concluded at paragraph 24 as follows: In any event, taking into consideration the submissions of the parties, the status of this matter, and the authorities, it is my view that the grievor, Ms. Amurao, is entitled to withdraw her grievance at this time neither “with” nor “without prejudice”; it is simply a withdrawal. An attempt to bring it on again in some way before this Tribunal would presumably be viewed as inappropriate. However, other tribunals such as the Ontario Human Rights Tribunal may take a different view should the matter properly come before them. In all the circumstances, the grievance and all issues concerning the Grievor’s termination which were before me are hereby considered and confirmed as withdrawn by the Union and Grievor. Consequently, if granted, the dismissal here will be neither with nor without prejudice to the Grievor’s rights to pursue her complaints before another tribunal. [14] With respect to the request for the dismissal presently before me counsel referred to the following arbitral jurisprudence: 1. Budget Car Rentals Toronto Ltd. v. United Food and Commercial Workers, Local 175 (Botan Grievance), [Source decision](https://www.minicounsel.ca/olaa/2000/50165), [2000] O.L.A.A. No. 33, 87 L.A.C. (4^th) 154 (L.M. Davie). 2. National Standard Co. of Canada v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, CAW-Canada, Local 1917 (Alfred Grievance), [1944] O.L.A.A. No. 37; [Source decision](https://www.minicounsel.ca/olaa/1994/18625), 39 L.A.C. (4^th) 228 (Palmer). 3. Serco Des Inc. (c.o.b. Drivetest) v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied and Industrial Service Workers International Union, Local 9511 (Bartley Grievance), [2014] O.L.A.A. No. 27; 241 L.A.C. (4^th) 194; 117 C.L.A.S. 252; 2014 CarswellOnt 1151(Luborsky). 4. Inco Ltd. v. United Steelworkers of America, Local 6500 (Bujold Grievance), [2003] O.L.A.A. No. 634; 75 C.L.A.S. 163; L.A.X./2004028, (Luborsky). 5. Inco Ltd. v. United Steelworkers of America, Local 6500 (Rheal Bujold) unreported March 9, 2005, (Luborsky). 6. Hamilton Wentworth Catholic District School Board and Ontario English Catholic Teachers’ Association (Grievance of Darrell Hicks), unreported, July 22, 2014 (Susan Tacon). [15] For the Union, Mr. Ho did not disagree that the Grievance Settlement Board has the power to dismiss a matter for the failure of a party to comply with a production order such as that currently at issue. However, he submitted that Tribunals exercised that power only in certain circumstances and that such circumstances do not pertain in this case for the following reasons: 1. The Grievor in the matter before us has produced documented medical reports concerning her disorder. 2. The current report of June 23, 2015 although introduced late to these proceedings, was not pursued by the Union until it became clear in mid-May that the Grievor would not be providing the consent which had been ordered. Unfortunately, that report was not available until June 23. In the circumstances, and despite its late production, Mr. Ho submitted that the views expressed in the letter provide a basis upon which an indefinite adjournment should be granted to allow the Grievor further opportunity to come to grips with her mental distress so that she might make an informed decision. In the circumstances here, the Grievor’s refusal ought not to be found to be deliberate or a rational wilful decision. Accordingly Mr. Ho suggested that the adjournment be indefinite until that time. [16] Alternatively it was Mr. Ho’s position that I should exercise my discretion by applying what has been referred to as the one year rule of thumb adopted by the Ontario Labour Relations Board in cases involving delay similar to that now before me. Similar circumstances pertained in the Inco case of March 9, 2005 wherein arbitrator Luborsky, having previously ordered productions which went undelivered for an extensive time-frame (see the reported Bujold award from 2003) did recognize that rule as fitting on the facts before him. However, in that case more than one year had transpired when considering the rule such that he found or concluded in favour of the dismissal. The factual situation before arbitrator Luborsky in the Inco case was little different than that currently before me with respect to the medical productions sought by the Employer and the Grievor’s ultimate refusal to consent to the release of those productions. It was, however, a termination case in the sense that, although the Grievor had retired from Inco on a disability pension, he grieved that his retirement was in effect a constructive dismissal based upon improper conduct of the employer causing diagnosed anxiety and stress disorder. [17] Mr. Ho sought to distinguish that case from the matter before me on the basis that there had been no formal diagnosis or medical report provided before arbitrator Luborsky, whereas here, there was such a report. However, in paragraph 3 of the award arbitrator Luborsky in describing the process before him at the initial hearing reported as follows: After opening statements, Employer counsel requested an order requiring the Grievor to produce copies of all relevant medical records in the possession of the Employer’s medical department touching on the Grievor’s alleged mental distress. Following a short recess, the Union consented to the Employer’s request and I accordingly made that order. The remaining first day of hearing was spent receiving the Grievor’s evidence in chief, which he completed, and in the course of which the Grievor produced selected reports from physicians who had examined him, but not the relevant record from the Employer’s medical department required by the production order. [18] In the circumstances, it is clear that some medical reports were received by arbitrator Luborsky with respect to the grievor’s alleged condition, however, what was sought was the broader relevant record from the employer’s medical department. Furthermore, as I understood the decision, the grievor had retired from Inco on a disability pension which had been presumably supported by medical reports relevant to his mental condition. That, in my view, is not much different than the situation presently before us where the Grievor has produced selected medical reports from physicians supporting absences and conduct relating to stress based anxiety. The Order here as in the Inco case sought a more comprehensive record being the notes and records of physicians underpinning the diagnosis for the Grievor’s condition(s). Accordingly, I am not satisfied that the Inco case is distinguishable from that before me with respect to the existence or not of a medical diagnosis. Both Grievors provided selected medical information. They do, however, differ with respect to their respective employment status. The Grievor before me is still an employee whereas in the Inco case the Grievor was not. That distinction is relevant with respect to delay and the “rule of thumb” and will be addressed later in this award. [19] With respect to Mr. Ho’s additional argument that the Grievor’s failure to consent to the release of the additional medical productions is not necessarily deliberate or wilful in the sense that her current psychological status has interfered with her ability to wilfully refuse that order and/or that the release of those documents “would compromise the current psychological treatment” as suggested in the June 23^rd letter from Dr. McDowall, there was no mention of such concern nor any supporting documentation for those issues when the original Order was issued in November of 2014 and renewed and extended in April of 2015. Indeed, the Grievor had even signified her intention to execute the required consent at that later time. It is more than surprising that such a suggestion should be forthcoming only on the eve of a hearing scheduled to consider a dismissal motion brought by the Employer. Frankly, it is my view that it is too little and too late to consider that submission as a sound basis to adjourn this matter for an indefinite period of time. [20] In my view, the reliability of the document is questionable not only because it was introduced at the last minute before the Employer’s motion but also since it fails in substance to satisfy or provide a sound medical rationalization for the presumed consequences to the Grievor’s treatment. While its suggested that her consent to the disclosure “would not be in her best interest” while in therapy, there is no clear explanation as to how the disclosure “would compromise the current psychological treatment”. This is of particular concern since the Grievor has herself provided medical reports identifying her medical issues. It is difficult to understand how the production of only those medical notes and records relevant to those medical reports could somehow prejudice her treatment. This is especially so since the medical notes and records sought are presumably supportive and relevant to medical reports provided by the Grievor. Indeed, any extraneous medical notes and records not relevant to matters at issue before me are subject to a screening process such that the Grievor’s privacy is not unduly compromised. [21] Finally, as in the case of the other medical reports, the Employer here is entitled to medical notes and records relevant to this latest report and, without the Grievor’s consent, would be unable to make a full and fair defense without access to those documents. It is simply another report being relied on by the Union in this case. As such, the Employer is entitled to receive and consider the background notes and records relevant to that document. None of those have been forthcoming. It would be counter-intuitive to rely on that report to further adjourn this matter. That is especially so when there is concern regarding prejudice to the Employer as exists in the circumstances here with respect not only to reliance upon that unsatisfactory report but also to the delay that reliance would occasion. [22] In the circumstances, I am not prepared to rely on that letter as a basis to further adjourn this matter for an indefinite period of time. [23] This brings me to a consideration as to whether or not to follow the “one year rule of thumb” applied in the Inco case following the practice at the Ontario Labour Relations Board. At paragraphs 11 to 13 of his decision arbitrator Luborsky outlines the powers of an arbitrator to order production and describes the Ontario Labour Relations Board approach to matters entailing unreasonable delay by a Grievor in complying with production orders as follows: [11] Section 48(12)(b) of the Labour Relations Act, 1995, supra, confers upon arbitrators the authority “to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing”. The parties do not dispute that the order for the production of the Grievor’s medical information was proper. The failure or refusal of the Grievor to consent to the release of his medical information has effectively frustrated the arbitration process, making it impossible to proceed with his grievance. In similar circumstances, arbitrators have held it appropriate to dismiss a grievance for refusal by the grieving party to comply with a valid production order. See, for example, National-Standard Co. of Canada Ltd. and C.A.W., Loc. 1917 (1994), [Source decision](https://www.minicounsel.ca/olaa/1994/18625), 39 L.A.C. (4^th) 228 (Palmer), at pp. 234-235, relying upon the earlier case of Re Thompson Products Employees Assn. and Thompson Products Ltd. (1970), [Source decision](https://www.minicounsel.ca/olaa/1970/1593), 22 L.A.C. 85 (Roberts). That authority is derived from the arbitrator’s obligation to control the procedures of the arbitration hearing to ensure its fundamental fairness. [12] Unreasonable delay by the Grievor in complying with my production order is an appropriate factor to consider in exercising such authority to dismiss the grievance. The Ontario Labour Relations Board has developed a “one year rule of thumb” when considering whether to dismiss a proceeding before the Board for delay, which is described by Vice-Chair Surdykowski in Torbridge Construction Ltd. [1997] OLRB Rep. July/August 751, at paras. 23-25, as follows: ¶23 ¶The jurisprudence demonstrates that the Board’s approach to delay, whether when considering whether an application or complaint should be entertained at all or when considering questions of remedy, is not a mechanical one. Each situation is examined and determined according to the merits of the particular case. ¶24 As a general matter, however, the Board recognizes that situations are not always as clear at the time that events are unfolding as they are (or appear to be) in hindsight. In some cases, it is only with the passage of time that the basis for a complaint to the Board becomes apparent. It has long been accepted that delay is inimical to labour relations, and that the speedy resolution of labour relations disputes is both a matter of public interest and in the interest of those who are directly involved (see, for example, Journal Publishing Co. of Ottawa v. Ottawa Newspaper Guild, Local 205, OLRB et al., [1977] O.J. No. 8, 1 A.C.W.S. 817 (Ontario Court of Appeal); The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 920, Re Dhanota and U.A.W. Local 1285 (1983), [Source decision](https://www.minicounsel.ca/scj/1983/1655), 42 O.R. (2d) 73, a decision of the Ontario Divisional Court dismissing an application for judicial review of the Board’s decision in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan 113; Re United Headwear and Biltmore-Stetson (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), (1983), [Source decision](https://www.minicounsel.ca/scj/1983/1852), 41 O.R. (2d) 287; Dayco Canada Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993 SCC minicounsel 53](https://www.minicounsel.ca/scc/1993/144), [1993] 2 S.C.R. 230 (Supreme Court of Canada). But speed is not the only objective, and justice and fairness demands that someone who may be aggrieved have a reasonable opportunity to recognize that s/he may have a complaint, to formulate a position and plan of action, to seek legal advice or representation, and to actually plead and file a complaint. ¶25 Accordingly, and while there is no fixed rule, in cases which involve a loss of employment or employment opportunities, the Board has developed a one year rule of thumb. When dealing with a motion to dismiss on the basis of delay, the Board will generally not dismiss a complaint which makes out a prima facie case where the delay is measured at less than one year, unless the responding party demonstrates actual prejudice resulting from the delay, the applicant offers no satisfactory explanation for it, and the Board is satisfied that it would not be unfair or otherwise inappropriate to permit the matter to proceed. On the other hand, where the delay exceeds one year, prejudice to the responding party is presumed, and the onus shifts to the applicant to provide a satisfactory explanation. [13] In my opinion, the foregoing rule of thumb provides sufficient flexibility and balancing of interests to be an appropriate standard to adopt in the circumstances before me. [24] As indicated in the cited Torbridge award at paragraph 23 “each situation is examined and determined according to the merits of the particular case”. Later in paragraph 25 of that award Vice-Chair Surdykowski notes that the rule of thumb may apply when dealing with a motion to dismiss on the basis of delay “in cases which involve a loss of employment or employment opportunities” and where a complaint “makes out a prima facie case”. [25] In the case at hand, the Grievor’s employment is not itself at risk. I understand that, although she may not yet have returned to work following the delivery of her child, her employment is still intact. The issues before me relate to pain and suffering occasioned by actions or inaction of the Employer which caused or contributed to the Grievor’s medical issues. Furthermore, while the Employer here may not be challenging the Grievor’s mental distress, the central issue concerning the cause and effect relationship between her disabilities and the actions of the Employer is central to the case. It could not in these circumstances be said that a prima facie case had been made out in that regard. [26] In the circumstances, it is not clear that it would be appropriate to apply the so called rule of thumb in the case before me. Be that as it may, assuming the rule were to be applied here, as at November 19, 2015, the Grievor will have had a full year’s grace from the issue of the original Order of November 19, 2014. If one counts the delay from that date, prejudice to the Employer is presumed as at November 19, 2015 and the onus then shifts to the Grievor to provide a satisfactory explanation. Since the explanation provided rests upon an inadequate and unsatisfactory “medical report” for the reasons addressed earlier, I am not prepared to further adjourn these proceedings beyond November 19, 2015. [27] That date approaches within days of the release of this Award or, perhaps has already arrived. In so far as I am aware, the Grievor has yet to provide her consent to authorize fulfillment of the Production Order. There continues to be no satisfactory explanation for her refusal. For the reasons outlined I am not prepared to rely upon the most recent medical note as a satisfactory explanation for further delay. There is no indication medical or otherwise to the effect that the Grievor does not have the mental capacity to provide informed consent. In similar circumstances arbitrator Luborsky at paragraph 14 of the Inco award applied the one year rule of thumb as follows: Applying the “one year rule of thumb” described in Torbridge Construction Ltd., supra, the Employer is presumed to have been prejudiced by the Grievor’s significant delay in complying with my order. There has been no rebuttal of that presumption and no explanation for the excessive delay except for an assertion of mental distress that remains unsubstantiated. [15] While reluctant to extinguish potential rights under the collective agreement except in the clearest cases, I conclude from the foregoing that for reasons known only to the Grievor, he is unwilling to provide his written consent to the release of the required medical documents, effectively frustrating my production order. That order was intended to ensure the opportunity for both Employer and Union to fairly present their cases at arbitration consistent with the requirements of natural justice. In such circumstances, the integrity of the arbitration process and practical need for finality of the parties’ dispute justifies the dismissal of the grievance. The Grievor has been given substantial latitude to comply with my production order in deference to his alleged, but unproven, mental distress. Even if the Grievor were now to come forward with the necessary written consent, the passage of time has been of sufficient duration to also deny the grievance for presumed prejudice to the Employer that has not been rebutted, caused solely by the Grievor’s unreasonable delay. [28] In the case at hand, the Grievor’s refusal to provide her consent represents a disrespect for this Board and its practices. Unless the Union can produce evidence that the Grievor has, prior to November 19, 2015, put it in a position to comply with the Production Order by signing and delivering the requisite consent, the grievances and all matters before me are deemed dismissed as at that date. [29] In the event the requisite consent is or has been forthcoming within the time prescribed, that is, November 19^th, and is filed with the Grievance Settlement Board at or before November 30^th, this matter may be reconvened upon request of either party. Matters concerning continuation and the process to be followed can be addressed at that time. Dated at Toronto, Ontario this 17^th day of November 2015. SCHEDULE “A” Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-0597 UNION#13-32 ## IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD # BETWEEN Canadian Union of Public Employees - Local 1750 (Goulet) ## Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Joseph D. Carrier Vice-Chair FOR THE UNION Fred Ho Canadian Union of Public Employees – Local 1750 National Representative FOR THE EMPLOYER Eric Kupka Workplace Safety and Insurance Board Counsel HEARING November 6, 2014 Decision [1] Official openings in the matter of Ms. Goulet’s complaints that she was treated unjustly, harassed and discriminated against in her work with the WSIB were presented in part on November 6, 2014. [2] Amongst other things it was the Grievor’s position that, as a result of her mistreatment in the workplace, she has suffered emotional and mental injury and or that an existing disability of that nature has been aggravated. In support of that position Mr. Ho, for the Union, and, on her behalf, sought to rely on a series of medical notes and reports relevant to Ms. Goulet’s mental health. [3] For the Employer, Mr. Kupka, took the position that, since Ms. Goulet’s mental state had been put directly in issue by her and the Union, all medical information relating to the Grievor’s mental health during the period in issue was relevant to these proceedings. [4] Having heard and considered the submissions of Counsel I was satisfied that the Production Order requested by the Employer was warranted. [5] I therefore confirm my Order as follows: 1) The Grievor shall provide her consent for the release to the Union of the clinical notes and records of all physicians and therapists seen by the Grievor, relating to the Grievor’s mental health status and/or condition and to the effects on her mental health of her pregnancy in 2013, for the period from January 2004 until the present. 2) The Union shall disclose the documents referred in paragraph 1 to Counsel for the Employer prior to December 31, 2014. 3) Counsel shall communicate and agree, in so far as possible, as to which, if any, such material is relevant and admissible. 4) Any dispute between Counsel concerning #3 above may be referred to me for resolution. 5) Any copying costs charged for the production of the documents referred to in paragraph 1 shall be shared equally by the Union and the Employer. Dated at Toronto, Ontario this 19^th day of November 2014.31:["$","$L7b",null,{"caseData":{"id":199738,"body":"$7c","year":2015,"court":{"id":26,"name":"Grievance Settlement Board","slug":"ogsb","abbreviation":"OGSB"},"issues":[{"id":406177,"outcome":"granted — grievances deemed dismissed as of November 19, 2015, unless the requisite consent is provided by that date","description":"Whether the grievances should be dismissed due to the grievor's failure to comply with orders to produce medical records.","issue_index":0}],"judges":[],"source":"https://www.canlii.org/en/on/ongsb/doc/2015/2015canlii102141/2015canlii102141.html","lawyers":[],"parties":[{"id":264626,"name":"Canadian Union of Public Employees - Local 1750 (Goulet)","role":"respondent"},{"id":263653,"name":"The Crown in Right of Ontario (Workplace Safety and Insurance Board)","role":"applicant"}],"summary":"The employer brought a motion to dismiss the grievances due to the grievor's repeated failure to comply with orders to produce medical records relevant to her claim of mental distress. The union sought an adjournment sine die, relying on a late-filed psychological report suggesting that disclosure would compromise the grievor's treatment. The arbitrator rejected the report as a basis for further delay, noting its late introduction and lack of medical rationalization. Applying the Ontario Labour Relations Board's 'one year rule of thumb' for delay, the arbitrator found presumed prejudice to the employer. The arbitrator ordered that the grievances be deemed dismissed unless the grievor provided the required consent by the one-year anniversary of the original production order.","citation":"Canadian Union of Public Employees - Local 1750 (Goulet) v Ontario (Safety and Insurance Board), 2015 OGSB minicounsel 165","court_id":26,"keywords":["abuse of process","delay","medical records","mental distress","motion to dismiss","one year rule of thumb","production order"],"province":{"id":1,"name":"Ontario","abbreviation":"ON"},"one_liner":"Grievances deemed dismissed for unreasonable delay after grievor repeatedly failed to produce ordered medical records.","case_types":["motion"],"date_heard":"2013-12-11","cited_cases":[{"id":890359,"url":"https://www.minicounsel.ca/olaa/2000/50165","title":"Budget Car Rentals Toronto Ltd. v. United Food and Commercial Workers, Local 175 (Botan Grievance), 2000 CanLII 50165 (ON LA)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890360,"url":"https://www.minicounsel.ca/olaa/1994/18625","title":"National Standard Co. of Canada v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, CAW-Canada, Local 1917 (Alfred Grievance), 1994 CanLII 18625 (ON LA)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890361,"url":"","title":"Serco Des Inc. (c.o.b. Drivetest) v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied and Industrial Service Workers International Union, Local 9511 (Bartley Grievance)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890362,"url":"","title":"Inco Ltd. v. United Steelworkers of America, Local 6500 (Bujold Grievance)","polarity":"neutral","treatment":"considered","relationship_kind":"treatment"},{"id":890363,"url":"","title":"Hamilton Wentworth Catholic District School Board and Ontario English Catholic Teachers’ Association (Grievance of Darrell Hicks)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890364,"url":"","title":"OPSEU (Amurao) and the Crown in Right of Ontario (Ministry of Community and Social Services) GSB No. 2010-0007, 2010-0029","polarity":"positive","treatment":"followed","relationship_kind":"treatment"},{"id":890365,"url":"","title":"Torbridge Construction Ltd. [1997] OLRB Rep. July/August 751","polarity":"positive","treatment":"applied","relationship_kind":"treatment"},{"id":890366,"url":"","title":"Journal Publishing Co. of Ottawa v. Ottawa Newspaper Guild, Local 205, OLRB et al.","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890367,"url":"","title":"The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 920","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890368,"url":"https://www.minicounsel.ca/scj/1983/1655","title":"Re Dhanota and U.A.W. Local 1285 (1983), 1983 CanLII 1655 (ON HCJ)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890369,"url":"","title":"Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan 113","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890370,"url":"https://www.minicounsel.ca/scj/1983/1852","title":"Re United Headwear and Biltmore-Stetson (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), (1983), 1983 CanLII 1852 (ON HCJ)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":890371,"url":"https://www.minicounsel.ca/scc/1993/144","title":"Dayco Canada Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), 1993 CanLII 144 (SCC)","polarity":"neutral","treatment":"cited","internal_case":{"id":83301,"year":1993,"court_id":4,"canonical_year":1993,"citation_scheme":"source","decision_number":144,"canonical_path_id":"144"},"internal_case_id":83301,"relationship_kind":"treatment"},{"id":890372,"url":"https://www.minicounsel.ca/olaa/1970/1593","title":"Re Thompson Products Employees Assn. and Thompson Products Ltd. (1970), 1970 CanLII 1593 (ON LA)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"}],"disposition":"granted","has_dissent":false,"legal_tests":[{"name":"One year rule of thumb","slug":"oneyearruleofthumb","context":"Applied to determine whether to dismiss the grievance for unreasonable delay in complying with a production order.","source_citation":"Torbridge Construction Ltd. [1997] OLRB Rep. July/August 751"}],"panel_split":false,"source_slug":"/en/on/ongsb/doc/2015/2015canlii102141/2015canlii102141.html","times_cited":0,"areas_of_law":[{"id":10001,"name":"Administrative Law","slug":"administrative-law"},{"id":10010,"name":"Employment and Labour Law","slug":"employment-and-labour-law"}],"file_numbers":[{"id":200304,"file_number":"2012-2988"},{"id":200305,"file_number":"2013-0597"},{"id":200303,"file_number":"GSB#2012-2508"}],"party_string":"Canadian Union of Public Employees - Local 1750 (Goulet) v. The Crown in Right of Ontario (Workplace Safety and Insurance Board)","tax_metadata":null,"document_kind":"decision","fact_patterns":[{"id":7593,"name":"failure to comply","slug":"failure-to-comply"},{"id":11161,"name":"grievance arbitration","slug":"grievance-arbitration"},{"id":1405,"name":"medical records","slug":"medical-records"},{"id":8039,"name":"mental distress","slug":"mental-distress"},{"id":6649,"name":"motion to dismiss","slug":"motion-to-dismiss"},{"id":1701,"name":"production order","slug":"production-order"}],"hearing_dates":["2013-12-11","2014-02-25","2014-03-17","2014-05-15","2014-07-03","2014-11-06","2015-04-09","2015-06-26"],"canonical_year":2015,"date_judgement":"2015-11-17","decisionMakers":[{"id":6923,"name":"Joseph D. Carrier","role":"sole","slug":"josephdcarrier","title":"Vice-Chair"}],"external_links":[{"id":218345,"url":"https://www.canlii.org/en/on/ongsb/doc/2015/2015canlii102141/2015canlii102141.html","label":"Source","domain":"www.canlii.org","url_path":"/en/on/ongsb/doc/2015/2015canlii102141/2015canlii102141.html"}],"noindex_reason":null,"citation_scheme":"minicounsel","decision_number":102141,"final_judgement":"Grievances deemed dismissed as of November 19, 2015, unless the requisite consent is provided.","representatives":[{"kind":"lawyer","name":"Eric Kupka","role":"for the Employer","lawyerId":25221,"lawyerSlug":"eric-kupka","lawyerUsername":"erickupka"},{"kind":"union_rep","name":"Frederick Ho","role":"for the Union"}],"source_language":"unknown","expert_witnesses":[{"id":12160,"name":"Dr. Sharleen McDowall","slug":"dr-sharleen-mcdowall","title":"registered psychologist","retained_by":"respondent","expertise_area":"psychology","court_reception":"rejected","opinion_summary":"Opined that the grievor was processing feelings of violation in therapy and that consenting to disclose all mental health records would compromise her current psychological treatment.","reception_rationale":"The report was introduced at the last minute, failed to provide a sound medical rationalization for the presumed consequences to treatment, and the employer was denied the opportunity to cross-examine the author.","alignment_with_retainer":"supportive"}],"canonical_path_id":"m165","financial_outcomes":null,"parties_anonymized":false,"statutory_provisions":[{"id":468805,"topic":"arbitrator's power to order production of documents","section":"s. 48(12)(b)","statute":"Labour Relations Act, 1995"}],"certification_outcome":"not_certification","legislation_citations":[]},"tocEntries":[{"id":"in-the-matter-of-an-arbitration","text":"IN THE MATTER OF AN ARBITRATION","level":2,"children":[]},{"id":"union","text":"Union","level":2,"children":[]},{"id":"in-the-matter-of-an-arbitration-1","text":"IN THE MATTER OF AN ARBITRATION","level":2,"children":[]},{"id":"union-1","text":"Union","level":2,"children":[]}],"relationships":{"same_proceeding":[],"appeal":[]},"podcastInitial":{"kind":"none"},"citingTreatmentSummary":[]}] 34:E{"digest":"NEXT_REDIRECT;replace;/ogsb/2015/m165;308;"}