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

HEARING

By way of written submissions completed on April 30, 2021

DECISION

1The Board is seized with eight grievances filed by Mr. Fred Finn (“grievor”), one dated May 7, 2017 relating to a letter of discipline, and the others dated June 30, 2017 alleging failure to accommodate, discrimination and harassment. Following a preliminary motion by the employer, by decision dated March 11, 2019, the Board ruled that a number of the allegations in the June 30, 2017 grievances were untimely, and therefore inarbitrable.

2Following the Board’s decision the parties exchanged particulars and disclosure relating to issues that remained before the Board. The union’s disclosure included the grievor’s medical file, with redactions of information which the union considered to be not relevant to the remaining issues. The employer was content at the time to accept the disclosure with the redactions, but reserved the right to object to particular redactions.

3Thus, there was no dispute about the extent of the disclosure per se. However, there was a dispute about the extent to which employer counsel may share information in the grievor’s medical file. By a second decision dated March 26, 2019, the Board disposed of that dispute.

4The hearing on the merit of the grievances commenced on December 18, 2019. During the opening statement employer counsel stated that the issue before the Board was now limited to the employer’s alleged failure to accommodate the grievor’s restrictions, discrimination, and harassment in the period January 2016 to February 2018, and that any remedial orders would also be limited to that window of time. Union counsel agreed.

5The union’s second witness was Dr. Marilyn Robertson, who at the time had been the grievor’s family physician for 28 years. The hearing day February 3, 2021 ended part-way into her testimony in chief. Following that day, the employer sought a conference call during which counsel argued that the Board should order that the union disclose to the employer Dr. Robertson’s complete medical file on the grievor going back to 2012, when the grievor suffered a back injury. The union objected. This decision relates to that dispute.

6The employer points out that Dr. Robertson had testified that the grievor’s back pain and related symptoms experienced in the period covered by the grievances were a result of a recurrence of a pre-existing injury. Employer counsel relied on five specific questions posed by union counsel to the doctor and her answers, to point out that when she made recommendations in the 2016-2018 period Dr. Robertson had access to, and had reviewed, the grievor’s medical file going back to 2012. It was submitted that the employer has the right to review that same information in the medical file.

7Union counsel pointed out that the grievor’s WSIB file from 2012 and the 2013 Ergonomic Assessment Report had been disclosed to the employer. These would establish that the grievor had chronic back issues following the 2012 injury. Those documents, together with the records from the doctor’s medical file in the 2016-2018 period have been disclosed. It was submitted that to order production of the entire medical file gong back to 2012 would be extremely intrusive in the circumstances.

8Referring to the need to ensure confidentiality of medical information, in its decision dated March 26, 2019, at para. 5 the Board wrote, “… this requires 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”. Both counsel agreed that this principle equally applies to the present disclosure request.

9On a review of Dr. Robertson’s testimony to date, it is clear that she had access to the grievor’s entire medical file. She testified in some of her responses that she reviewed the file in the pre-2016 period. In answer to some other questions she said that she “probably” did. What this indicates is that the doctor did not ignore the grievor’s medical history. This should not come as a surprise to anyone – that a doctor would consider the history and context of a patient’s medical information on file in diagnosing treating and making recommendations. In balancing the interests, I do not find that evidence that the doctor considered the grievor’s medical history from 2012 justifies the disclosure of the grievor’s entire medical file. This is so even acknowledging that the information is about a physical back use, which is not as sensitive or private as information about a more critical disability or mental health issue as employer counsel argued. The only specific evidence I find about the information the doctor reviewed in the grievor’s file was the x-ray in 2012. Based on that review, she opined that the grievor’s symptoms in 2016 were “probably” a re-injury. The union had indicated its preparedness to disclose that x-ray.

10In relation to the allegation of failure to accommodation, the issue is about what restrictions the grievor presented in the 2016-2018 period and what action the employer took or failed to take. The employer’s ability to cross-examine Dr. Robertson as to the basis of medical restrictions she placed on the grievor, and her recommendations, is not prejudiced in the absence of the grievor’s complete medical file, as would justify its disclosure. I conclude that in all of the circumstances, and having regards to the balancing of interests required, the broad disclosure sought by the employer is not justified and is denied. The union is directed to disclose the 2012 x-ray. This disclosure of course is also subject to the conditions ordered and/or agreed to between the parties, designed to maintain confidentiality.

11The Board remains seized.