GSB# 2017-0553; 2017-1286; 2017-1287; 2017-1288; 2017-1289; 2017-1290; 2017-1312; 2017-1313

UNION# 2017-0201-0006; 2017-0201-0009; 2017-0201-0010; 2017-0201-0013; 2017-0201-0014;

2017-0201-0015; 2017-0201-0011; 2017-0201-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Finn)

Union

• and -

The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Esther Song Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

TELECONFERENCE

March 21, 2019

DECISION

1The Board is seized with a number of grievances filed by the grievor, Mr. Fred Finn, alleging failure to accommodate.

2This decision relates to a dispute relating to the extent of disclosure of the grievor’s medical file. The medical file has been disclosed to the Employment Relations Advisor and the Disability Accommodation Specialist with redactions by the union of content which it deems not relevant to the issues in these grievances.

3The union is opposed to employer counsel sharing any content of the file with her instructing client (a senior manager) and an employer witness (a manager). The union takes the position that if disclosure of specific information to either individual becomes necessary, the employer should be required to obtain consent from the grievor, and if the grievor objects, seek an order for disclosure from the Board.

4Employer counsel advised the Board that the redacted version of the file will be accepted at this time. However, she retained the right to object to particular redactions if deemed necessary. Counsel argued that the restrictions sought by the union would significantly prejudice the employer’s ability to prepare and defend against the allegations in the grievances. Counsel noted that the medical file relates to a physical (back) issue, which is not as sensitive information as compared to conditions such as mental or psychiatric conditions or other serious illnesses.

5The parties have agreed to a number of conditions on the manner of use of the medical information designed to ensure confidentiality. They agree that at this time it is not necessary to set out those conditions in a Board order. The only issue for the Board is whether employer counsel may share the documents or information in the medical file with the instructing client and the witness. Determination of this issue required a balancing of the grievor’s right to privacy of medical information and the need to avoid undue prejudice to the employer’s ability to defend the grievances.

6There is no dispute that the contents of the medical file are at least arguably relevant. I am of the view that the union’s proposal that the employer obtain the grievor’s consent each time employer counsel needs to share a document or information from the file in order to obtain instructions or prepare the witness is not workable. It will lead to significant inefficiency and delay. This case is about accommodation of a disability and the information relates to that disability. Therefore it is very probable that employer counsel would need to share that information in order to obtain appropriate instructions and prepare the employer’s case. The conditions agreed to between the parties, supplemented by limitations on sharing in the order that follows will ensure that the information will be shared only to the extent necessary for purposes of litigation. That would be the proper balance in the particular circumstances of this case.

7Therefore, it is ordered as follows:

(a) Employer counsel may share documents in the grievor’s medical file and/or information in the documents with the instructing client for the purposes of obtaining instructions and/or preparation for the hearing.

(b) Employer counsel may share documents in the grievor’s medical file and/or information in the documents with the witness to the extent necessary for preparing witness testimony.

(c) The instructing client and the witness referred to in (a) and (b) above may not share any document in the grievor’s medical file or information therein with anyone else.

(d) Employer counsel may not share any documents in the grievor’s medical file or information therein with anyone other than the instructing client and the witness, without consent from the union or an order from the Board.

8The Board remains seized with the instant grievances.