GSB# 2017-0616

UNION# 2017-0713-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Webb)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

M.V. Watters

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 11, June 23, 2020 (by teleconference calls)

DECISION

1Prior to the events giving rise to this grievance, the grievor worked as a Forest Technician-Forest Health as part of the Employer’s Biodiversity and Monitoring Section. At the time, the grievor worked out of the Rosslyn, Ontario office near Thunder Bay, Ontario. The Forest Technician-Forest Health position is a seasonal position that lasts approximately nine (9) months from April of a given year to January of the next calendar year. The grievor commenced work for the 2016 season as a permanent seasonal employee.

2The grievor experienced a serious illness in early January, 2017 in respect of which he was hospitalized for approximately forty (40) days at the Thunder Bay Health Sciences facility. The grievor has not worked since the onset of his illness. One (1) of the issues in this proceeding is whether the Employer has conducted a sufficient and timely search for modified work to accommodate the grievor’s restrictions and limitations.

3The initial date of hearing in this matter was January 31, 2018. The parties were then unable to mediate a resolution to the issues in dispute. Conference Calls were subsequently held on December 13, 2018, March 11 and October 24, 2019. A second hearing was held on December 3, 2019, following which a Decision was issued on December 10, 2019 requiring both parties to provide particulars. To date, there has been no start to the hearing on the merits.

4During the course of the proceedings described above, this Arbitrator was provided with the following medical documentation: a medical note from Dr. Joseph H. Behse, the grievor’s personal physician, dated April 19, 2017; a medical report from Dr. Behse dated March 26, 2018; a Functional Abilities Evaluation (FAE) dated April 29, 2019 prepared by Bayshore Therapy and Rehab; and a further report from Dr. Behse dated March 26, 2020. The final paragraph of this last report reads, in part:

“As of March 27, 2017, if a position was found that complied, and met the return to work modifications/criteria, set out in the Bayshore Functional Abilities assessment of April 29, 2019, then he could have returned to work as of March 27, 2017…………………………………………………………………”

5Conference Calls were conducted on June 11 and June 23, 2020 to address the parties’ requests for additional production and particulars.

6By email of May 25, 2020, the Union requested the following additional information from the Employer:

1. Additional particulars relating to dates when the Employer conducted any searches for potential accommodated positions, including but not limited to the positions identified in the Employer’s particulars dated April 3, 2020.

2. Additional particulars and production with respect to:

i) Any positions in the Ministry of Education and Ministry of Transportation that might meet the restrictions and limitations articulated in the April 29, 2019 FAE, and not limiting the search to exclusively seasonal positions, including postings from March 27, 2017 to the present;

ii) Any vacancies in the Ministry of Natural Resources and Forestry (MNRF) in the North-West Region from March 27, 2017 to the present in the following positions:

• GIS Database Technician (including predecessor positions as they existed under MNRF)

• Head Gate Attendant

• Park Clerk

• Senior Assistant Zone Ecologist (including predecessor positions as they existed under MNRF)

• Senior Park Interpreter (including predecessor positions as they existed under MNRF)

• Pay and Benefits Clerk

• Pay and Benefits Assistant

• Aircraft Operations Clerk

• Fire Business Admin Clerk

• Growth and Yield/Growth and Field Crew Lead

• Inventory Control Clerk

• Warehouse Shipper/Receiver

• Mail and Imaging Clerk SNL

• Student Services Assistant SNL.

3. Position Description Reports for the following positions:

• Head Gate Attendant

• Park Clerk

• Pay and Benefits Data Clerk

• Pay and Benefits Data Assistant

• Inventory Control Clerk

• Warehouse Shipper/Receiver

• Wildlife Assessment Technician

• Aquatics Monitoring Crew Member

• Human Dimensions Research Technician.

7By email of June 9, 2020, the Employer requested the following additional information from the Union:

• Medical documentation relating to Dr. Behse’s conclusion that the grievor could have returned to modified work as of March 27, 2017, including Dr. Behse’s clinical notes, the assessments prepared by the specialist Dr. Sweet, and the documentation from the grievor’s attendance at the Neurology Day Program in Thunder Bay.

During the course of the Conference Call of June 11, 2020, counsel for the Employer withdrew the request relating to Dr. Sweet’s assessments. He acknowledged that these materials had previously been received from the Union.

8It is the Union’s position that the Employer failed to conduct a sufficient and timely search for an accommodated position for the grievor. Union counsel submitted that all of the particulars and production requested are arguably relevant to the resolution of this issue. More specifically, he advanced the following arguments:

i) The extent of the job search conducted by the Employer is a live issue between the parties. From the perspective of the Union, the Employer was obligated to engage in an “expansive” assessment of positions in its efforts to find a suitable modified position for the grievor. Counsel argued that it is, therefore, entirely appropriate to seek information about regular and fixed-term positions, in addition to other seasonal positions;

ii) Counsel asserted that the information sought will address alleged gaps in the Employer’s Job Search Particulars of April 3, 2020. In a similar vein, such information will permit the Union to both review and assess positions which the Employer examined and then rejected;

iii) The information requested does not relate solely to remedy and the request for same is not premature. Rather, the particulars and production relate to both the merits of the dispute and to the ultimate remedy, if the grievance succeeds. Counsel noted that, to date, there has been no agreement or order to bifurcate this proceeding. Indeed, he suggested that it would be wrong to do so here, as it would serve to further prolong the hearing of this grievance. Counsel observed that this case started some two and one-half (2 ½) years ago and stressed that the Union is anxious to move forward;

iv) Counsel referenced Dr. Behse’s medical report of March 26, 2020 which expressed the opinion that the grievor would have been capable of performing modified work, within the scope of his restrictions and limitations, as of March 27, 2017. He argued that the request for disclosure back to March, 2017 is arguably relevant to the questions of when the grievor could have engaged in modified work and whether the Employer improperly delayed its search for accommodated positions;

v) The Union has particularized its request for further information with specificity. As a consequence, there can be no dispute as to what is being sought; and

vi) The request for particulars and production, as set out above, is not tantamount to a “fishing expedition”, as that term is commonly understood. The possibility that the information sought may expose the Employer to liability does not equate with the type of prejudice referenced in certain of the authorities.

9For all of the above reasons, Union counsel submitted that all of the material requested is arguably relevant to the issue as to whether the Employer has satisfied the obligations imposed by the duty to accommodate and should, accordingly, be disclosed. Counsel asked that the Employer be ordered to provide the particulars and production sought within forty-five (45) days.

10The Union relies on the following authorities in support of its request: Toronto District School Board and C.U.P.E., Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime); O.P.S.E.U. (Madan) and Ministry of Environment, GSB #2010-2112 et al. (Watters); O.P.S.E.U. (Manna et al.) and Ministry of the Solicitor General, GSB #2017-1792 (Hewat).

11In response, counsel for the Employer advised that the Employer is prepared to release the following information to the Union: Position Description Reports that were not previously provided in the Job Search Particulars of April 3, 2020; and information about postings for positions referenced in the aforementioned Job Search Particulars from November 20, 2019 going forward. In all other respects, the Employer opposes the Union’s request for further particulars and production for the following reasons:

i) The particulars requested go beyond seasonal positions and include regular and fixed-term positions. Counsel acknowledged that, to date, the Employer has focused on the suitability of seasonal positions given that the grievor was a seasonal employee prior to the onset of his illness;

ii) The Union is already informed as to the Employer’s efforts to identify modified work for the grievor in respect of the 2017, 2018 and 2019 seasons. More specifically, counsel advised that the Employer did not look for accommodated positions in 2017 given that the medical information indicated the grievor was not capable of returning to work in his regular position, or otherwise. Additionally, he noted that the Employer’s efforts with respect to the 2018 and 2019 seasons is fully documented in the Employer’s Particulars dated November 20, 2019 and in the Job Search Particulars of April 3, 2020;

iii) Dr. Behse’s medical report of March 26, 2020 does not “match up” with the FAE of April 29, 2019. Counsel argued it would be improper to conclude that the grievor could have returned to modified work in March, 2017 based on restrictions identified two (2) years later in the FAE. He also noted that in the interim period the grievor received treatment and rehab and that, as a consequence, his condition could have improved;

iv) The Union is not seeking clarification but, instead, is requesting information about positions it thinks the Employer could have considered but didn’t. Counsel argued that this request, together with the demand for particulars and production going back to March 27, 2017, is premature as it relates exclusively to remedy. This position is articulated as follows in the Employer’s written submissions dated June 18, 2020; “The Employer submits that the Union’s requests are premature, as it is seeking disclosure on the jobs that the Employer should have considered, as opposed to what it did consider. The arguable relevance of this request is only as a remedial issue, except that the Union has not established any entitlement to a remedy. Specifically, the Board has not yet issued a decision as to when the Grievor could have returned to modified work, including whether the Grievor could have returned to modified work as early as March 27, 2017 or whether this information was provided to the Employer in a timely manner. The Board also has not issued a decision whether the scope of search should include Regular and Fixed-Term positions.”

v) Granting the Union’s request for additional particulars and production will potentially result in an undue protraction of this proceeding.

12The Employer relies on the following authorities in support of its position: Tony Stacey Centre for Veterans Care and S.E.I.U., Local 1, [2009] O.L.A.A. No. 485 (Herlich); Paris Kitchens and L.I.U.N.A., 2009 CarswellOnt. 11877 (Gee).

13The factors that govern a request for disclosure is summarized in the following excerpt from the decision in West Park Hospital and O.N.A. (1993), 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160 (Knopf):

“Where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice.”

(page 167)

The above cited approach was accepted and applied by the GSB in the Decisions in Madan and Manna et al.

14A similar test was articulated in the Toronto District School Board Decision. There, the Arbitrator determined that all documents which are “arguably or seemingly relevant or have a semblance of relevance” must be produced. He further observed:

“The test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as to what may be relevant during the course of the hearing.”

(page 23)

15After considering the submissions of the parties, I find that the information requested by the Union is arguably relevant to the issue as to whether the Employer’s efforts to identify an accommodated position for the grievor were sufficient and timely. The resolution of this issue will necessarily involve a consideration of the following questions: was the Employer required, as part of its job search, to review and assess regular and fixed-term positions, in addition to seasonal positions; were the Employer’s efforts to locate suitable modified work timely, or did it unduly delay the start of its inquiry; and did the Employer fail to consider certain positions that might have matched up with the grievor’s restrictions and limitations and/or did it incorrectly reject positions during the course of its analysis. In my judgment, the further particulars and production sought by the Union are arguably relevant to the determination of these questions. It is readily apparent that the Union in this proceeding is challenging the extent and timeliness of the Employer’s job search. I am unable to agree that the particulars provided by the Employer to date fully answer the Union’s concerns.

16I have not been persuaded that the Union’s request relates exclusively to remedy and is, thereby, premature. The questions referenced in the preceding paragraph are all connected to the merits of the dispute and must be answered in order to determine whether the Employer complied with the duty to accommodate. I accept that the resolution of these questions may also impact the nature of any remedy, assuming the Union is ultimately successful with all or part of its case. This possibility, however, does not constitute a sufficient reason to reject the Union’s request.

17On my reading, the decisions in Tony Stacey Centre for Veterans Care and Paris Kitchens are factually distinct from the circumstances of the instant case. Neither of the decisions involved the duty to accommodate. In Tony Stacey Centre for Veterans Care, the Union’s policy grievance related to alleged unpaid retroactivity under an interest arbitration award. The Arbitrator denied the Union’s request for certain documents on the basis that the request was inappropriate and premature, as the information was sought for the purpose of assisting or facilitating the enforcement of any award he might ultimately make in the proceeding. In Paris Kitchens, an Alternate Chair of the Ontario Labour Relations Board declined a request for the production of documents relating to the mitigation efforts of four (4) individuals whose employment was terminated. She found the request was premature, as the Board had yet to decide whether the terminations were carried out in a manner that violated the Ontario Labour Relations Act. It is clear that in these two (2) decisions, the material requested did relate solely to remedy. To reiterate, I find that the information the Union seeks in this instance relates to both the merits of the dispute and to remedy.

18I note the Employer’s concern about Dr. Behse’s medical report of March 26, 2020 and, more specifically, that the opinion expressed therein was premised on a FAE conducted approximately two (2) years after the March 27, 2017 date. I consider this concern, or objection, to be more related to the merits of the dispute. In my judgment, the caution expressed by the Arbitrator in Toronto District School Board is applicable here.

19The request for further disclosure has been particularized by the Union to the extent that there can be no dispute as to what is being sought. I do not view the Union’s request as a “fishing expedition”. Rather, it is generally consistent with the position taken by the Union since the start of this proceeding. A clear nexus exists between the material sought and the positions that the parties will likely advance at the hearing of the merits. I have not been persuaded that the possibility the hearing may be prolonged by allowing the Union’s request is a sufficient reason to reject same in the circumstances of this case. Lastly, I do not accept that the Employer will suffer undue prejudice by an order for further particulars and production.

20For all of the above reasons, I find that the test for arguable relevance, as set out in West Park Hospital and Toronto District School Board, has been met.

21Turning to the Employer’s request, the Union agrees to provide the Employer with the medical documentation relating to Dr. Behse’s conclusion that the grievor could have returned to modified work as of March 27, 2017, including his clinical notes, and the documentation from the grievor’s attendance at the Neurology Day Program in Thunder Bay. The Employer agrees that the Union may redact any arguably irrelevant material from this documentation before disclosing same. Both parties agree that there should be a dispute resolution mechanism established in the event they have a difference concerning any of the redactions.

22The sole issue dividing the parties relates to the limits on who should be entitled to access and review the medical information disclosed.

23Counsel for the Union stressed that a balance must be struck between the grievor’s privacy interests and the need to provide for and ensure a fair hearing of the grievance. From the perspective of the Union, the appropriate balance here is to restrict access to the grievor’s personal medical information to Employer counsel and one (1) advisor. Counsel argued, however, that the grievor’s former Manager, Mr. Jay Wright, and possibly Mr. Wright’s superior, should not be permitted to review this material. He submitted that there is no basis to provide Mr. Wright with access to the medical information in question. Counsel premised this submission on two (2) grounds. First, he noted that Mr. Wright’s “area of responsibility” encompasses the grievor’s former position and other “physically intensive” positions out in the field. Counsel acknowledged that the grievor cannot perform the duties required in such positions given the nature and extent of his restrictions. He suggested that Mr. Wright would consequently have little or no knowledge of positions falling outside of his “sphere of managerial influence”. Second, counsel asserted there is nothing to suggest that the former supervisor possesses any specific insights with respect to interpreting the medical information. I was urged to conclude that the provision of access to Mr. Wright would amount to an unnecessary intrusion into the grievor’s privacy. Counsel observed that the Employer has not suggested disclosure to a Disability Accommodation Specialist. In his view, a person in such a position would be better equipped than Mr. Wright to inform a decision as to which jobs match up with the grievor’s restrictions and limitations. Lastly, counsel argued that Arbitrators have exercised caution about providing personal medical information to direct Managers.

24The Union relies on the following authorities on this aspect of the case: Peel District School Board and O.S.S.T.F., District 19 (2017), unreported (Nairn); O.P.S.E.U. (Grievor) and Ministry of Community Safety and Correctional Services, GSB#2016-1915 (Gee); British Columbia v. B.C.G.E.U. (2004), 2004 CanLII 94739 (BC LA), 127 L.A.C. (4th) 419 (Lanyon); C.O.P.E.U., Local 343 (Staff Unit) and Ontario Federation of Labour (2015), 263 L.A.C. (4th) 400 (Anderson); O.P.S.E.U. (Grievor) and Ministry of the Attorney General, GSB#2018-0676 (McLean); O.P.S.E.U. (Davis) and Ministry of Citizenship and Immigration, GSB#2013-3363 (Harris); Lady Dunn Health Centre and O.N.A., 2018 CarswellOnt. 15650 (Wilson); Unifor Local 975 and Enbridge Gas Distribution Inc. (2015), 263 L.A.C. (4th) 88 (Cummings); Niagara College and O.P.S.E.U., Local 242, 2019 CanLII 54739 (ON LA) (Stout).

25The Employer agrees that there should be some restrictions on who can access the grievor’s personal medical information. Counsel advised that he wants to disclose such information to both the assisting Employee Relations Advisor and to his instructing client, who might be Mr. Wright or his superior. He argued that to limit the disclosure to counsel and one (1) instructing client, as suggested by the Union, is overly restrictive and could impair the Employer’s ability to effectively respond to the grievance. Additionally, counsel maintained that the health issues relevant to the grievance are largely physical in nature and do not involve psychiatric or other sensitive issues that might be considered as “stigmatizing”. In his words, the grievor’s privacy interests are not as pronounced as was the case in certain of the authorities relied on by the Union. Ultimately, counsel submitted that there is no compelling reason in this instance to accept the limitation proposed by the Union. Lastly, he expressed concern that the Union, in substance, is attempting to dictate who the Employer can select as its instructing advisor. Counsel argued that the Union should not be granted such a right.

26The Employer relies on the following authorities in support of its request: University Health Network (Women’s Own Withdrawal Management Centre) and C.U.P.E., Local 5001, 2019 CanL11 103918 (Albertyn); O.P.S.E.U. (Morin) and Ministry of Government and Consumer Services, GSB#2012-0568 (Lynk); O.P.S.E.U. (Grievor) and Ministry of the Solicitor General, GSB#2019-2137 (Williamson); O.P.S.E.U. (Horning) and Ministry of the Solicitor General, GSB#2016-2754 (Petryshen).

27The Arbitrator in University Health Network (Women’s Own Withdrawal Management Centre) commented as follows with respect to the production of medical records:

“There are two interests regarding the production of the medical records. One is that parties are entitled to see all relevant documents so that they could fairly present their best cases. The other is the Grievor’s privacy interest regarding the information contained in the medical records. That information belongs to the Grievor. In reconciling these competing interests, there must be a reasonable balance between production of the medical records as arguably relevant documents and the Grievor’s privacy interest …………………………….”

(paragraph #6)

This statement is applicable here as the grievor’s right to privacy with respect to his medical records must be balanced against the Employer’s right to have sufficient information to fairly present its case.

28I note from a reading of the authorities provided that there is some variation as to the extent of permitted disclosure of medical information. By way of example:

• In Peel District School Board, access was limited to counsel and the Employer’s key advisors, with no further dissemination of the material except on a “need to know” basis:

• In O.P.S.E.U. (Grievor), GSB#2016-1915 and O.P.S.E.U. (Grievor), GSB#2018-0676, access was limited to counsel and one (1) advisor;

• In O.P.S.E.U. (Morin) and O.P.S.E.U. (Grievor), GSB#2019-2137, access was limited to counsel and two (2) advisors (one (1) Employee Relations Advisor and one (1) instructing client);

• In University Health Network (Women’s Own Withdrawal Management Centre), counsel for the Employer was permitted to share the medical records with two (2) advisors, namely the Employee Relations advisor and the Labour Relations advisor;

• In O.P.S.E.U. (Horning), the medical documentation released was not to be shared with anyone who was not a key advisor for the Employer; and

• In Niagara College, counsel was granted the right to discuss the medical records with one (1) advisor, the College’s Occupational Health Department and a medical expert.

29I think that the type of variance described above simply reflects the fact that Arbitrators, when exercising their discretion to arrive at an appropriate balance of the competing interests, focus on the specific facts and needs of the parties in the matter before them.

30The Arbitrator in Niagara College did not permit Employer counsel to discuss the grievor’s medical records with the Dean and Associate Dean. In this regard, he stated:

“In my experience, direct supervisors are never granted access to medical records. In normal circumstances, an employer’s occupational health or third-party insurer will review the medical records and make any determination about the legitimacy of the absence and what, if any, accommodation may be required for an employee. The only information disclosed to a direct supervisor would be whether the claim for sick pay was legitimate and what, if any, restrictions were required to accommodate an employee in the workplace.”

(paragraph #20)

Of all of the authorities referenced in this proceeding, Niagara College is the sole award which expressly determined that a direct Manager should not have access to medical information provided pursuant to an order.

31After considering all of the submissions, I have decided to limit access to Employer counsel and two (2) advisors (one (1) Employee Relations Advisor and one (1) instructing client). This decision is consistent with the approach taken in O.P.S.E.U. (Morin) and O.P.S.E.U. (Grievor), GSB#2019-2137. I am satisfied that in the circumstances of this case this resolution, together with the other conditions set out below, recognizes and addresses the grievor’s right to privacy in respect of his personal medical records and, at the same time, ensures that the Employer’s ability to prepare for and defend the grievance is not undermined. At this juncture, I am not inclined to interfere with the Employer’s selection of its instructing client.

32For all of the above reasons, I order as follows:

1. The Employer is to provide to the Union the additional particulars and production requested in the email of counsel for the Union dated May 25, 2020;

2. The Union is to provide to counsel for the Employer the medical documentation relating to Dr. Behse’s conclusion that the grievor could have returned to modified work as of March 27, 2017, including Dr. Behse’s clinical notes and the documentation from the grievor’s attendance at the Neurology Day Program in Thunder Bay;

3. Before providing the medical documentation to counsel for the Employer, the Union may redact any part thereof which it considers to be arguably irrelevant to the issues in this proceeding. If there is any disagreement about redactions, it will be addressed and resolved by this Arbitrator by way of a conference call;

4. Access to the medical documentation produced is limited to counsel for the Employer and two (2) advisors (one (1) Employee Relations advisor and one (1) instructing client);

5. The medical documentation produced must be maintained as confidential; must not be disclosed to any person or party not a participant in this proceeding; must only be used for purposes relating to this proceeding and not for any other purpose or proceeding; and shall only be photocopied for purposes relating to this proceeding; and

6. The additional particulars and production referenced in paragraph #1 above and the medical documentation described in paragraph #2 above is to be provided within forty-five (45) days from the date of this Decision.