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

Frederick Ho Canadian Union of Public Employees Local 1750 National Representative

FOR THE EMPLOYER

Eric Kupka Workplace Safety and Insurance Board Counsel

HEARING

April 9, 2015

Decision

1An Order for production of medical information was issued in this matter on November 19, 2014. Productions were to be provided “prior to December 31, 2014”. At commencement of proceedings on April 9, 2015, I was advised by counsel for the Employer, Mr. Eric Kupka, that he had not yet received any material from the Union pursuant to that Order.

2Mr. Fred Ho for the Union advised that the Union had made its best efforts to comply with the Order, however, the Grievor had, due to privacy and other concerns, failed to consent to the release of the medical information. He indicated, however, that, on advice of her union representatives, she was now prepared to do so.

3Although the Grievor had then signified her intention to execute the necessary medical consent(s), it was appropriate, nonetheless, to comment on the matter of privacy and the possible consequences in circumstances such as pertained in this case. Although an employee may prefer to maintain the privacy of his/ her medical information, the failure to consent to provide relevant medical material in a case such as that before me would likely be prejudicial to the outcome of the matter. In particular, since the Grievor’s allegations and the success of her case here in large measure rest upon medical information, a failure to produce the relevant documentation would undermine the Union’s ability to meet the onus on it and its ultimate success on her behalf.

4In the circumstances, Mr. Kupka advised that his client was prepared to indulge an extension of the Order for production on condition that the date(s) for delivery to the Union of the Grievor’s consent as well as for the production itself be specified in a revised Order.

5Finally, having considered the issues addressed by counsel, and my concerns regarding possible disrespect of the Board’s process, I issued a verbal Order which I now confirm 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. Such consent to be provided to the Union on or before Friday, April 17, 2015.

2. The Union shall disclose the documents referred in paragraph 1 to Counsel for the Employer on or before Friday, May 15, 2015.

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.