Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2017 CanLII 52714

GSB#2016-0770

UNION#2016-0580-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL July 20, 2017

SUBMISSION July 14, 2017

Decision

1The parties raised a number of disputes in terms of production requests and particulars in this matter. Having read through the documents provided, the case law submitted and having heard their submissions in a conference call, I hereby ORDER as follows:

1. The Implied Undertaking concerning the disclosure of the Grievor’s medical records.

2The parties were at an impasse concerning the use that the parties could make concerning the medical documents disclosed in this proceeding. Specifically, the Employer sought to require the Union to agree that neither it nor the Grievor would assert, based on those documents, that the Employer was now “on notice” of her medical issues and therefore has an obligation to accommodate her. It seeks an express acknowledgement, or order, that the documents cannot be used to trigger a duty to accommodate. Alternatively, the Employer requests that the Employer be allowed to use the documents for purposes of accommodation that may be required on a go-forward basis.

3The Union opposes that request, contending that the implied undertaking associated with the disclosure of medical records does not apply to the party providing the records, and the producing party does not lose the right to use the documents for other purposes. It submits that the implied undertaking is to protect the privacy interests of the individual disclosing the information. It also asserts that the Board has no jurisdiction to limit the Grievor’s future actions in regard to her own medical records, and that any issue that arises in regard to accommodation should be dealt with then, not at this juncture. In support, the Union cites to Re U.S.W.A and Maxi, 1998 CarswellOnt 6128 (OLRB, Chapman); Re Goodman and Rossi, 1995 CanLII 1888 (ON CA), 1995 CarswellOnt 146 (Ont. CA); Re AMAPCEO and Ontario (Ministry of Government Services), 2012 CarswellOnt 662, [2012] O.S.G.B. No. 21 (Dissanayake).

4The case law establishes that the “implied undertaking” that documents disclosed as a result of a litigation only be used in connection with that litigation is designed to protect the confidentiality of a party’s documents. As set out by the Ontario Court of Appeal in Re Goodman v. Rossi, supra at par. 23:

[T]he principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the court. The necessary corollary is that this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place.

5Here, the Employer seeks to limit the Grievor’s use of her medical records to claim that the documents establish “official knowledge” of her medical condition, which triggers an obligation for it to accommodate her. With respect, I do not believe that I can preclude the Grievor from making such a claim in the future. In my view, in this situation, simply providing the documents does not, by itself, trigger the obligation to accommodate. There would have to be a request for accommodation. Such a request, however, could be based on the medical documents submitted in connection with this arbitration. Consequently, I decline to expressly limit the Grievor from using her own medical records solely for the purposes of this litigation and for no other purpose.

6In regard to the Employer’s alternative argument – that it be allowed to use the documents for the purpose of accommodation that may be required on a go-forward basis - I find it to be unnecessary. Should the Grievor make a request for accommodation, the Employer may request to be able to rely on the documents submitted in this proceeding.

7The Union also requests that the Employer’s implied undertaking continue even after the documents are introduced into the record. Normally, such an implied undertaking ends when the document is introduced because it is no longer confidential in the same sense. Re U.S.W.A. and Maxi, supra at par. 13. It is common for an arbitrator to order that the disclosed medical documents be used only for the purpose of this arbitration and for no other or improper purpose, and that order continues throughout the arbitration process. I so order here.

2. Employer’s Request for T4s an Tax Returns

8The Employer seeks the Grievor’s tax returns, since 2010, in order to verify outside employment that the Grievor had, which may have contributed to her medical issues. It accepts that the actual numbers may be redacted, but asserts that the T4s and tax returns are the most reliable source of that information. The Union opposes that request, arguing that the tax returns and T4s contain highly confidential, private information, and that there are less intrusive means of obtaining that information. In support, the Union cites to Re OPSEU (Hunt) and Ontario (Ministry of Attorney General), 2010 CarswellOnt 1762, GSB No. 2001-0534 (Abramsky, Vice- Chair).

9At this point, I do not find that the Grievor’s T4s and tax returns to be “arguably relevant.” The Employer may seek particulars about the Grievor’s outside employment and the nature of that work, including physical demands and/or injuries. Although T4s and tax returns would provide a list of other employers, there are privacy interests contained in those documents, and the information that matters is not the identity of those other employers but the nature of the work, including physical demands and/or injuries.

3. Part-time Work Discussions Particulars

10The Employer has sought the following particulars in regard to discussions concerning the Grievor’s part-time employment:

a. When, where, and to whom did the Grievor disclose she was working on a part-time basis outside the OPS?

b. To whom did the Grievor mention the part-time job during her interview for HBS? What specifically did the Grievor say about the part-time jobs at that time?

c. When and how often did Ms. Evora allow the Grievor to adjust her working hours to let the Grievor leave early to go to her second job? What information did the Grievor provide to Ms. Evora to gain this flexibility in her paid hours of employment?

11The Union opposes this request on the basis that it is not “arguably relevant.” In the alternative, the Union requests that the Employer undertake not to discipline her in regard to the failure to submit a Conflict of Interest form. The Employer, during the conference call, agreed to that limited restriction.

12In my view, the particulars set out above are “arguably relevant” because they go to the relationship between Ms. Evora and the Grievor, and because they pertain to her secondary employment which, as set out above, I do find potentially relevant to the issues in this case. The Employer has agreed that it will not base any discipline on the conflict of interest forms in connection with this outside employment.

4. Other Issues

13There are several other issues to be decided, which will follow after a further conference call. One of those issues is whether the Grievor’s name should be anonymized, which the Union seeks and which the Employer opposes. On a without prejudice basis, the Employer agreed that this Decision could be released without any reference to the Grievor’s name.