GSB# 2016-2754

UNION# 2016-0411-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Horning)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 28, 2019

Decision

1The grievance before me filed on behalf of Mr. P. Horning is dated November 21, 2016. The grievance alleges that the Employer discriminated against Mr. Horning in relation to his request for workplace accommodation. Mr. Horning and the Union intend to rely on medical reports from two medical professionals to support their position that Mr. Horning’s request for accommodation was reasonable and should have been granted by the Employer in a timely fashion. The Employer seeks an order directing Mr. Horning and the Union to provide it with the clinical notes from the medical files of the two medical professionals. The Union opposed the Employer’s request. This decision deals with the Employer’s request for the disclosure of clinical notes relating to Mr. Horning as well as some other issues raised by the Union during its submissions on the Employer’s motion.

2Mr. Horning is a Correctional Officer (“CO”) who moved to the Ottawa Carleton Detention Centre (“OCDC”) in 2004. He was on short term sick leave starting on October 23, 2013, and he was approved for long term income protection (“LTIP”) on April 24, 2014. As of January of 2016, Mr. Horning began to discuss a return to work with his psychologist. A return to work plan was developed with Manulife that would have returned Mr. Horning to work with the Ministry as of September 12, 2016. The return to work plan consisted of some restrictions, the main one being that Mr. Horning not return to OCDC. Mr. Horning’s psychologist recommended that he return to work at the St. Lawrence Valley Correctional and Treatment Centre (“SLVC”). Mr. Horning’s LTIP benefits ended as of November 11, 2016. Mr. Horning eventually secured a position as a CO at the SLVC, but this did not occur until at least two years after the return to work date selected by his psychologist. The essence of Mr. Horning’s complaint is that the Employer had failed in its duty to properly accommodate him in light of his restrictions from September of 2016 until his assignment to SLVC.

3In support of their positions on the merits of the grievance, the Union and Mr. Horning intend to rely on medical reports prepared by Dr. G. Kambites, Mr. Horning’s family physician, and Dr. H. Searles, a Registered Psychologist. The Union may also call these medical professionals as witnesses. It is with respect to these reports that the Employer requested disclosure of the complete medical files, or in other words, the clinical notes. I note that Mr. Horning also had an independent medical examination (“IME”) by Dr. W Quan, a Psychiatrist.

4Given the nature of the issues before me, I find it unnecessary to review the submissions from counsel and the decisions I was referred to in any detail. The Union took the position that the clinical notes requested by the Employer were not relevant to the key issues in dispute. In the alternative, the Union objected to the scope of the Employer’s request. It argued that there should be a narrow time period and a focus only on the relevant information. Union counsel submitted that strict conditions should be attached to any direction I might make to protect the confidentiality of the highly sensitive medical information relating to Mr. Horning. Counsel also suggested that the Employer should be responsible for the cost of photocopying the extensive medical file that Dr. Searles has