GSB#2013-3363
UNION# 2013-0527-0047
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Davis)
Union
- and -
The Crown in Right of Ontario (Ministry of Citizenship and Immigration)
Employer
BEFORE
Daniel A. Harris
Arbitrator
FOR THE UNION
Avril Dymond Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Benjamin Parry Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING DATES
June 18, 2015, July 11, December 9, 2016, January 19 and July 10, 2017
DECISION
1These matters include allegations by the Union (OPSEU) arising from a grievance dated October 18, 2013 that the grievor, Arlene Davis, has been harassed and discriminated against by her employer, the Ministry of Citizenship and Immigration and International Trade. Her claims rest on various heads of the Ontario Human Rights Code. She has testified that she has been denied various career progression opportunities, despite her years of loyal service to the Ontario Public Service. Her allegations also include that under a new manager she had her responsibilities diminished to the point of what the common law would characterize as constructive dismissal. Further, the union alleges that these purported actions of the employer have damaged her mental health.
2The hearing into these matters began on June 18, 2015 with an attempt to mediate a solution, which efforts bore no fruit. A further mediation attempt by a different Vice-Chair of the Grievance Settlement Board (GSB) was also unsuccessful.
3The hearing continued on July 11, 2016, with opening statements and the commencement of the grievor’s examination-in-chief. The examination-in-chief continued on December 9, 2016 and continued on January 19, 2017. The cross-examination of the grievor began late that day. Early in the cross-examination, at mid-afternoon, the Employer requested production of the clinical notes and records of the grievor’s medical practitioners. After a brief union caucus, the union said that the grievor was in agreement with providing those documents to the union, which would then provide them to the employer.
4The hearing resumed on July 10, 2017. The grievor had failed to provide the union with the promised clinical notes and records of her medical practitioners. Four issues were addressed that day:
an employer request for on Order that the grievor produce her medical practitioners’ clinical notes and records
clarification of the caution given to the grievor that she was not to discuss her evidence with anyone because she was under cross-examination
continuation dates
the grievor’s ability to attend further hearings because of her mental frailty
5The employer renewed its request that the grievor provide access to her medical practitioners’ clinical notes and records; the union indicated that the grievor had not provided the necessary written consents to release the documents.
6Leading up to the July 10, 2017 date the Union requested an adjournment of a previously scheduled date. The Employer consented on the basis that the agreed-upon production would be provided prior to that date. Nothing was forthcoming.
7In June, 2016 the employer advised the union that it had no concerns with the caution given to the grievor regarding her ability to review the clinical notes and records with union counsel. Nonetheless, no medical documents were forthcoming.
8The employer submitted that it met the standard tests for the production of the documents it seeks. It said that they were arguably relevant, were particularized, were not a fishing expedition, had a nexus to the dispute and provided no undue hardship to the grievor or the Union. It carefully reviewed the grievor’s evidence and submitted that the union had clearly put the grievor’s purported health issues into the context of the employer’s management of the workplace as a central theme of its allegations that such management was contrary to the collective agreement and the Ontario Human Rights Code. The employer reserved its right to make a further production request for a decoded OHIP list that would catalogue her attendances for medical consultations, because of what it alleged to be inconclusive.
9The employer said it was entitled to sufficient temporal information so that it could assess the grievor’s alleged health decline. It said that the appropriate time-line would include the year and a half prior to the commencement of a secondment of the grievor out of her unit. She returned to her unit in June 2012. The Employer seeks production for this time period, which commences June 9, 2010, from the grievor’s current family physician, her retired family physician, any walk-in clinics, her attendance at the hospital following her episode at work and CAMH.
9The Employer relied upon Kulpinski and Toronto Transit Commission, [2000] O.J. No. 169; Sysco Food Services and Teamsters Local 419 (Holden) 2006, Carswell Ont 10857, [2006] O.L.A.A. No 340 (Briggs); OPSEU and Ontario Clean Water Agency (GSB #2000-1220, June 20, 2005, Abramsky); OPSEU and Ministry of Community Safety and Correction Services, (GSB #2003-1881, July 11, 2011, Leighton).
10The union submitted that it was not opposed to an Order from the Board to provide the documents requested. It said that the grievor is in possession of the documents requested on January 19, 2017. It said it was concerned with how far back an Order should extend. It said that the period that the grievor was on the secondment would be an adequate baseline. It also submitted that it would require an opportunity to redact any portions of the documents that are not arguably relevant.
11In reply, the employer submitted that the union’s backdate for production was not sufficient because it did not capture the period before the secondment, a time that the grievor had testified did not have the pressures that subsequently caused her illness and thereby her damage claim.
12As for the grievor’s ability to attend the hearing, the union said that it will provide medical substantiation. It was agreed that the next hearing day would be adjourned.
13I have carefully considered the evidence heard to date, the submissions of the parties and the authorities relied upon.
14The general approach of the Board, in situations where a course of conduct is said to be relevant, is to permit a party to reach back three years from the date of the grievance to establish such a course of conduct. Here, the grievance is dated October 18, 2013. The grievor was out of her unit, in a secondment, from approximately June 9, 2010 until June 2012. She said that upon her return, the unit felt like a hurricane had struck it. It took her 16 months to grieve the effect of the reorganization of the unit.
15Applying the three year yardstick, which is not a hard-and-fast, immutable measure, the employer would be entitled to production of documents back to October 2010, which would not capture the pre-secondment period from her home unit. On her evidence, there was a marked difference in the unit before and after her secondment. It is the union that has drawn the distinction between these two periods. In my view it would be unfair to the employer not to permit an exploration of the differences between these two periods as it relates to the grievor’s mental health and the damages she is alleged to have suffered at the hands of the employer.
16Fairness requires the inclusion of part of the period before her secondment in order to provide a basis of comparison for the pre and post secondment periods. However there must be limits to how far back a hearing can reach into such an historical period. This case involves different managers in the two periods and an admitted, significant reorganization of the workplace. In these circumstances, a one-year reach-back before the secondment will provide a sufficient basis to assess the grievor’s condition, before, during and after the secondment.
17I order that the grievor and the union provide the medical documentation from the practitioners listed above, subject to the union’s opportunity to redact any portions that are not arguably relevant. If there is any disagreement about the redactions, they may be brought back before me at an oral hearing for resolution.
18This matter is to continue on dates to be fixed by the Registrar.
Issued in Toronto this 20th day of November, 2017.