GSB# 2019-3028; 2020-1924

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (McCallum)

Association

• and –

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Christine Davies Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 15, 2021

Decision

1Having heard the submissions of the Parties with respect to the Employer’s request for production of the Complainant’s medical documentation, I order the following:

A. Scope of Production

2The Union is ordered to produce to the Employer’s counsel a copy of the Complainant’s medical records from Dr. Curtis for the period June 1, 2019 to October 5, 2020, inclusive, which are arguably relevant to the particulars of the Dispute dated October 30, 2020 (the “Medical Records”). The Complainant also agrees to provide a list of any and all treating physicians and specialists she was seeing during the above-noted period.

B. Redaction of Records and Dispute Resolution

3The Union may redact the Medical Records to remove documents or portions of documents that are not arguably relevant to the particulars. To the extent that the Union redacts documents or portions of documents in the Medical Records, sufficient information shall be left unredacted to disclose the general nature of the redacted documents or portions.

4If the Employer does not accept that one or more of the redactions have been limited to matters not arguably relevant to the particulars, it shall promptly give notice of its challenge(s) to the Union. The Union shall forthwith provide the Arbitrator with unredacted copies of the challenged documents for comparison with the redacted copies. The Arbitrator will determine what further portions of the documents, if any, shall be produced in an unredacted form to the Employer.

C. Confidentiality of Medical Records

5The disclosure of Medical Records on the terms set out in this Order is for the sole purpose of these proceedings. The Medical Records may not be accessed, disclosed, used or disseminated, in whole or part, for any purpose other than for these proceedings and on the terms as set out in this Order or otherwise as may be directed by the Arbitrator.

6The disclosure of the Medical Records as provided for in this Order is for the purposes of this hearing and is not a waiver of any privilege that the Complainant might have with respect to the Medical Records or any other document related to the Medical Records or referred to in the Medical Records.

D. Disclosure of Medical Records to Employer’s Counsel

7Within thirty (30) days of this Order, the Union shall provide the Medical Records to the Employer’s counsel in an electronic and password protected format.

E. Secure Maintenance of Medical Records

8The Employer’s Counsel shall maintain the Medical Records in a secure manner such that the Medical Records may only be accessed as set out in this Order, e.g. saved electronically with password protection. Any hard copy of the Medical Records must be securely stored and may only be accessed as set out in this Order. For clarity, the requirements of secure storage set out in this Order apply to any document book or exhibit book that includes any of the Medical Records.

F. Review of Medical Records by Employer Representatives

9For the sole purpose of obtaining instructions and advice regarding this matter, Employer’s counsel may provide a copy of the Medical Records to each of Jacqueline Abergel (Employee Relations Advisor) and Karen Shaw (Ministry instructing client) (collectively the “Employer Representatives”), as set out below.

10For clarity, the Employer Representatives shall treat the information reviewed as confidential, shall not make additional copies, and shall securely store the Medical Records (whether electronically or in hard copy) in a manner that will not permit access by other staff, and shall not use or disclose any information they learned from their review of the Medical Records for any purpose other than instructing/advising Employer counsel in connection with this proceeding.

11If a change in the identity of the Employer Representatives is necessary, the Employer will inform AMAPCEO as soon as reasonably possible. AMAPCEO will have seven (7) days to indicate whether it has any concerns with this change in Employer Representative. If AMAPCEO has a concern about the change in Employer Representative, it will advise the Employer of the reason for the concern and the Parties will seek an Order from the Arbitrator with respect to the issue.

12The Medical Records shall be returned to the Complainant or destroyed at the conclusion of the proceeding, including any judicial review, save for one copy retained in each counsel’s file.

13For clarity, the requirements of this Order do not apply to any documents already in the Employer’s possession.

G. Use of Medical Documents in Hearing

14A witness, or potential witness, who is to be shown the Medical Documents in the course of their evidence may review the Medical Records with counsel in advance of their testimony.

15Given the circumstances of the pandemic, the review will take place by remote videoconference, with the electronic copy of the Medical Records viewable through use of screenshare by Employer counsel. The witness will not make a copy of the Medical Records or any part of the Medical Records, including by photograph or screenshot, nor will they disclose the contents of the Medical Records, in whole or in part, to anyone.

16If and when circumstances permit an in-person meeting, the Employer’s Counsel may review the Medical Records with the witness in person. The witness may view a copy of the Medical Records in the presence of Employer Counsel but will not make or retain a copy of the Medical Records or any part of the Medical Records, nor will they disclose the contents of the Medical Records, in whole or in part, to anyone.

17A witness may be shown the Medical Documents in the course of their testimony.

18Witnesses shall be cautioned that they may not make or retain a copy of the Medical Records or any part of the Medical Records (including by photograph/screenshot in the event of remote video proceedings), nor will they disclose the contents of the Medical Records, in whole or in part, to anyone. For clarity, any witnesses shown the Medical Records in whole or part in the course of their testimony shall treat the information reviewed as confidential, and shall not use or disclose any information they learned from their review of the Medical Records for any purpose other than providing evidence in this proceeding.

H. Compliance and Enforcement

19The parties to the arbitration are directed to comply with the terms of the Order.

20The Arbitrator is seized with any issues of interpretation or compliance/ enforcement of this Order, and remedies for any issues of compliance/ enforcement.

21Both Parties have reserved their right to seek an amendment to this order, either through agreement or through a motion to the Arbitrator.