GSB# 2012-3928; 2012-3929; 2013-3452; 2013-3453; 2013-3454; 2014-0970; 2014-0971; 2014-0972; 2014-1722; 2014-1723; 2014-1724; 2014-1725; 2014-1726; 2014-1727; 2014-1728; 2014-1729; 2014-1730

UNION#2012-0517-0117; 2012-0517-0118; 2013-0517-0026; 2013-0517-0027; 2013-0517-0028; 2014-0234-0116; 2014-0234-0117; 2014-0234-0118; 2014-0234-0279; 2014-0234-0280; 2014-0234-0281; 2014-0234-0282; 2014-0234-0283; 2014-0234-0284; 2014-0234-0285; 2014-0234-0286; 2014-0234-0287

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sparkes)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 15, 2019

Interim Decision

1The seventeen grievances filed by the Union on behalf of Constance Sparkes have been referred to the Board for arbitration. These matters have now been scheduled for three days of hearing, but litigation has not commenced.

2The Employer has requested authorization for its advisor and instructor to review the Grievor’s medical file, which has been produced, with redactions, to counsel for the Employer. On behalf of the Grievor, counsel for the Union objected to the disclosure of the medical file to the two individuals the Employer named as needing to work with its counsel in preparation for this case, Ms. Laura McCready and Ms. Rhonda Franks. Union counsel argued that the file contains sensitive medical information which should not be reviewed by anyone other than Employer counsel. Should I find otherwise, the Union urges that the medical information be treated carefully.

3Some of the grievances raise issues that will require the Grievor and Union to rely on Ms. Sparkes’ medical file. As such, it would be impossible for Employer counsel to properly prepare for the litigation of these grievances without access to the medical file. It is also insufficient for Employer counsel to have access without the ability to seek guidance from her advisor and instructor regarding both facts that the Union will rely upon and the alleged impact on the Grievor’s health that the Union will be claiming.

4As such, pursuant to the authority of s. 48(12)(b) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, I hereby order the Union and the Grievor to forthwith produce to counsel for the Employer all arguably relevant medical records for Ms. Sparkes subject to the following conditions:

1. Counsel for the Employer, her advisor and her instructor, Ms. Laura McCready and Ms. Rhonda Franks, are permitted to access and use the medical records solely for the purposes of this hearing, and subject to the following conditions:

(a) Any person permitted to access and use these documents will keep them strictly confidential except for documents entered as exhibits in the hearing and subject to any further orders in that regard; and,

(b) To the extent that those identified above are provided with copies of these documents, upon completion of this case, all physical documents will be returned to the Union's counsel or destroyed.

2. Counsel may make copies of the medical record, or any portion of the medical record, in order to submit the document(s) into evidence.

3. Any documents produced pursuant to this order and not submitted into evidence shall be returned to Union counsel, or destroyed, at the conclusion of these proceedings.

5I note that the Employer has retained the right to make arguments regarding the redactions made to the medical records. If the Employer objects to the redactions, and needs this issue resolved by the Board, such a motion must be made well in advance of the next hearing day so that this matter can proceed as scheduled.

6The Employer also seeks to have some of the Grievor’s particulars struck before the commencement of the hearing. Having regard to the parties agreement, I now direct the following exchange of submissions:

• The Employer’s submissions are to be filed with the Board and copied to counsel for the Union by June 28, 2019;

• The Union’s response submissions are to be filed with the Board and copied to counsel for the Employer by September 13, 2019;

• The Employer’s reply submissions are to be filed with the Board and copied to counsel for the Union by October 18, 2019; and,

• The Union’s sur-reply submissions, if any, are to be filed with the Board and copied to counsel for the Employer by November 8, 2019;

7I remain seized.