GSB# 2016-2701

UNION# 2017-0377-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cousins)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

May 14, 2018 by Telephone Conference Call

DECISION

1The Grievor, Ms. Holly Cousins, worked as a Casual Employee and was terminated from employment on February 22, 2017. Her letter of termination makes reference to her having been away from work due to medical reasons for a period of two years and ten months, her inability to perform work as a Customer Service Representative, and her having not provided the Employer with updated medical information, functional abilities information, and a prognosis for return to work. The Union filed a grievance on behalf of the Grievor on March 2, 2017, seeking Ms. Cousins’ reinstatement as an LCBO employee and to be made whole. This termination grievance came before the Board on January 12, 2018, at which time Ms. Cousins did not appear.

2At that time Union Counsel informed the Board that the Grievor had made a telephone call on the evening of January 11th in which she made reference to having sought emergency medical treatment following a medical procedure earlier in the week, and stated that it was unlikely she would be present at the hearing the next day. Following the receipt of submissions from the parties, and over the objection of the Employer, it was found appropriate to grant the hearing adjournment sought by the Union and to do so without imposing any conditions.

3The next hearing date was set for April 6, 2018. At that hearing Union Counsel advised the Board that shortly prior to the hearing day Ms. Cousins had notified him that she would not be attending the hearing as she was in too much pain to travel to Toronto because of a recent medical procedure and the need to constantly sit at the hearing, and that she would be providing Union Counsel with medical documentation. The parties agreed at that time to adjourning the hearing pending the receipt from her attending physician of certain medical documentation, and an Order was issued by the Board requiring Ms. Cousins to provide this by April 27, 2018.

4At the Hearing held by telephone conference call on May 14, 2018, Employer Counsel advised that the foregoing ordered medical documentation had not been received by the Employer as of April 27th, or since, and urged that the grievance of Ms. Cousins be dismissed forthwith. In support of its submission the Employer made reference to the following arbitral authorities: Re Canadian Union of Public Employees, Local 440 v. Toronto District School Board (Renaud Grievance), [2013] O.L.A.A. No 434 (Steinberg); Re Canadian Union of Public Employees, Local 440 v. Toronto District School Board (Renaud Grievance), [2014] O.L.A.A. No. 260 (Steinberg); Re Kraft Canada and Bakery Confectionary & Tobacco Grain Millers International Union Local 426, (2012), 112 C.L.A.S. 57 (Surdykowski); Re Ontario Public Service Employees Union (Randolph) v. The Crown in Right of Ontario (Ministry of Transportation) (2015), 264 L.A.C. (4th) 422 (Briggs); Re Ontario Public Services Employees’ Union (Savdie) v. The Crown in Right of Ontario (Ministry of Government Services) [2013], O.G.S.B.A. No. 122 (Harris); and to Re Ontario Public Service Employees Union (Ellis) v. The Crown in Right of Ontario (Ministry of Finance) [2001], O.G.S.B.A. No. 74 (Dissanayake).

5During the course of the May 14th Hearing, Union Counsel informed the Board that on April 25, 2018, he had received an e-mail from Ms. Cousins notifying him that medical information from a physician advising that she was under doctor’s care and not able to make the hearings had been sent to Union Counsel. This e-mail was entered into evidence. In this e-mail Ms. Cousins also stated that what had been sent may be incomplete as she is unsure just how much information she is to disclose and seeks clarification as to what is to be provided. In this e-mail Ms. Cousins noted that her doctors view the request for the specified medical information as invasive and advised her that she does not have to disclose every procedure and issue that is happening to her as some of it is personal. Union Counsel informed the Board that it is still not in receipt of any medical information from Ms. Cousins and seeks an extension of the time limit for production of the medical documentation.

6In support of its submission the Union made reference to the following arbitral authorities: Re The Corporation of the City of Hamilton and The Amalgamated Transit Union, Local 107 (Jovanovic) (2008), 93 C.L.A.S. 105 (Chauvin); Re Ontario Public Service Employees Union (Heathcote) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) [2013] O.G.S.B.A. No. 135 (Harris); Re Ontario Public Service Employees Union (Sitek) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2013), 116 C.L.A.S. 320 (Devins); and Re Blencoce v. British Columbia (Human Rights Commission), 2000 SCC 44, Supreme Court of Canada.

7Whether to grant an extension of the time limit is clearly a discretionary matter. This discretion is to be exercised taking into account all relevant factors with the ultimate objective of ensuring a fair hearing to both parties and balancing the prejudice to the parties. Having considered the facts of this case and the submissions of the parties I find myself of the view that the time limit for production of the requested documents ought to be extended one more time. The grievance at hand pertains to the matter of termination of employment and it would appear that the grievor has certain medical issues.

8The order dated April 6, 2018, seeks confirmation from a physician treating Ms. Cousins that she has a medical condition that precluded her from attending the scheduled April 6th arbitration hearing; to disclose the nature of this condition that prevented the hearing attendance; to provide the length of time the Grievor has been the physician’s patient; and to advise the anticipated date when Ms. Cousins could attend a Hearing and what, if any, accommodation would be required. The information sought in the order dated April 6, 2018, is relevant to the matter at hand, is general in nature, and cannot reasonably be seen to be intrusive.

9Accordingly, and for the foregoing reasons, the Decision in this matter is that the time limits are to be extended one further time in order to enable the Union to provide the Employer with the required medical documentation identified at the hearing held April 6, 2018. A revised Order incorporating the new timelines is set out below. This Order also provides clarification to Ms. Cousins as to what is required, and direction to her as to how to proceed should she have any further uncertainties or questions.

ORDER

10On a without prejudice or precedent basis, Union counsel shall provide to Employer counsel medical documentation from Ms. Holly Cousins’ treating health care professional(s) setting out the following information:

(a) Confirmation that the writer is Ms. Cousins’ treating health care professional and for how long they have been treating her;

(b) Confirmation that Ms. Cousins was unable to attend the scheduled Arbitration Hearing of April 6, 2018, due to a medical condition;

(c) The nature of the medical condition that prevented Ms. Cousins from attending this April 6, 2018, Arbitration Hearing (diagnosis need not be provided). A doctor’s note which simply states that Ms. Cousins was unable to attend for medical reasons without specifying the nature of the medical condition will not be considered satisfactory.

(d) The anticipated date that Ms. Cousins will be able to attend an Arbitration Hearing and, if applicable, what accommodation she may require in order to attend.

11Ms. Cousins is to provide, or arrange to provide, this above-referenced information so as to reach Union Counsel by no later than Tuesday, June 5, 2018. Should this information not be so provided by June 5, 2018, Ms. Cousins must understand that her termination grievance before this Board may be dismissed without any further Hearing or opportunity to be heard. Should Ms. Cousins not understand or not be clear as to what is required of her by this Order she is to contact Union counsel to seek clarification. Union counsel shall provide the above-noted documentation to Employer counsel as it is received and in no event later than Wednesday, June 6, 2018. The Board reserves the right to grant an extension to these time limits should it deem it to be reasonable and appropriate to do so in all the circumstances.

12The Arbitration Hearing shall be adjourned sine die, pending receipt of the above-referenced documentation and without prejudice to any position the Union or the Employer may take with respect to the Grievor’s failure to attend the hearing of April 6, 2018. The Employer specifically maintains and preserves the right to request, following receipt and review of the documentation, or in the event documentation is not provided in accordance with the criteria set out above, that the grievance be dismissed and/or to argue that these periods of adjournment resulting from the Grievor’s non-attendance be taken into account with respect to remedy should any liability be established.