GSB# 2021-2179

UNION# 2021-0285-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Martin-Watson)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Cogswell Liquor Control Board of Ontario Counsel

HEARING

September 1, 2023

Decision

1The matter presently before me for decision arose during the course of a case management discussion with counsel on September 1, 2023. The case on the merits relates to an allegation that the Grievor was terminated without just cause. The termination on October 25, 2021 was based on allegations of inappropriate conduct and/or behavior by the Grievor which might generously be characterized as erratic behavior.

2During preliminary discussions, Union counsel, Ms. Anjana Kashyap, advised that in the Grievor’s defence or as an explanation of her alleged conduct the Union intended to introduce a medical report prepared by a clinical psychologist dated November 8, 2021 and signed on November 9, 2021 by clinical psychologist, Kristen Deuzeman. It was the Union’s intention to rely on that report during the course of proceedings, however, in offering the document much of the body of the report had been redacted. Indeed a glance through the redacted copy indicates that at least as much as half of the document had been redacted ostensibly to protect the Grievor’s privacy since allegedly many areas of the document could be embarrassing to the Grievor and in some cases prejudicial to her in the workplace should she be reinstated pursuant to these proceedings.

3Employer counsel, Andrew Cogswell, challenges that the document ought not to be redacted in any way since the Employer had not requested any medical documents of the Union or the Grievor. Rather, this is a case in which the Union had volunteered the report and was not entitled to set the parameters on the examination of that report, or, indeed, of the author of that report. Rather, to attempt to determine in advance the elements of that report which might or might not have been relevant to the doctor’s ultimate conclusions is to put ourselves in the position of the doctor in determining what elements were relevant to her ultimate conclusions.

4In brief, the issue is whether or not it is appropriate at this stage in proceedings to receive only the redacted medical report or to peruse the document as the Union suggests line by line to determine whether or not the redacted portions have been legitimately excluded as unnecessary and irrelevant. Ms. Kashyap argues that it is appropriate in assessing medical documentation that an arbitrator take into consideration a balancing of the interests of the parties in having the full report versus the privacy interest of the Grievor in eliminating those portions which might be embarrassing and/or prejudicial to her.

5In support of their respective positions counsel provided the following authorities.

For the Employer:

1. West Park Hospital v O.N.A., 1993 CanLII 16806 (ON LA), 1993 CarswellOnt 1283, [1993] O.L.A.A. No. 1212, [1993] O.L.A.A. No. 12, 32 C.L.A.S. 469, 37 L.A.C. (4^th) 160 (Knopf);

2. Dufferin Concrete and Teamsters Local Union 230 (Ross Storey), October 27, 2015, (Luborsky);

3. Hendrickson Spring Stratford Operations and United Steelworkers of America, Local 8773 (Paul Ewaniuk), June 2, 2006 (Solomatenko).

For the Union:

1. Stelco Inc. (Hilton Works) and United Steel Workers of America, Local 1005, 1994 CanLII 18600 (ON LA), 42 L.A.C. (4^th) 270, (Dissanayake);

2. Re Ontario (Ont. Clean Water Agency) and OPSEU, 2005 CanLII 94103 (ON GSB), 2005, 141 L.A.C. (4^th) 329.

The Decision and Rationale

6While I initially considered that a balancing of interests between the parties is common in addressing medical information, I have since considered the authorities provided by counsel as well as their well-articulated submissions and have concluded that in this particular case it is not appropriate to allow the Union to rely upon a redacted medical report offered on behalf of the Grievor in the circumstances where it was not produced at the Employer’s insistence. Of the various authorities referred to by counsel it would appear that only the decision in the Hendrickson Spring case (supra) by arbitrator Solomatenko specifically deals with the situation where a Union has sought to introduce and rely on a medical report which had not been requested or solicited by the Employer or Employer counsel. Here, the report was prepared on November 8, 2021, just days after the Grievor had been terminated on October 25^th of that year. It was only on or about July 12, 2023 that the redacted copy of the psychological assessment was provided to Employer counsel. It was at that time that Union counsel advised that it was the Union’s intention to rely on the redacted document in support of the Grievor’s case.

7In all the circumstances, I am satisfied where, as in this case, the Union has unilaterally offered a medical report it would be inappropriate to allow it to provide and rely on only the redacted copy in support of its ultimate position. Indeed, as argued by the Employer, asking this board to approve the redacting of elements of the report prior to the hearing would put this Board in the position of determining what elements of the history and the information then before the psychologist were or were not relevant to her ultimate conclusions. In my view, it is only the person who made that report and assessment who is in a position to confirm what information in that report either assisted or did not assist her in drawing the conclusions set out therein.

8In the Hendrickson Spring case (supra) arbitrator Solomatenko amongst other things was faced with a situation in which the Union had produced one or more medical reports prepared by a Dr. Brooks on the Grievor’s behalf but at the request of the Union itself. Since it was the Union that had requested the medicals, amongst other things, the Employer sought the Union’s correspondence with the doctor wherein it requested medical report(s) on behalf of the Grievor. The Union objected to that request. Additionally and more importantly the Employer sought access to Dr. Brooks’s entire medical file for the Grievor in as much as it might have relevance to the report as produced.

9In dealing with the second issue regarding Dr. Brooks’ files which was the third of three issues he dealt with, arbitrator Solomatenko expressed his views as follows in paragraphs 2 and 3 on page 13 of his decision as follows:

The third and final preliminary issued raised by the union was its objection to the employer’s request to produce Dr. Brooks’ entire medical file for the grievor. As noted already, the union opened the entire issue of the grievor’s medical condition by serving the employer with a medical report that it had requested to be prepared on the grievor’s behalf. Having opened the subject of the grievor’s medical condition, the union cannot now unilaterally set the parameters by which that evidence will be examined in the context of these hearings. Counsel for the employer has argued that there is sufficient basis from which to conclude that the doctor’s file is either relevant, or at minimum arguably relevant, to the issues at hand.

I concur with the employer’s request that the doctor’s files for the grievor be produced and should be available prior to the deliberation of that evidence during the hearing and prior to [sic] Doctor Brooks being called as a witness. That is not a [sic] unusual practice with respect to medical evidence in the course of arbitral proceedings and, in my experience, not only does it minimize the amount of time that the physician is required to testify but it greatly focuses the parties’ attention as to the relevant issues to be determined within the hearing itself.

10In the case before me we are not dealing with all of the Grievor’s medical files as in the Hendrickson Spring case, but only that report prepared by the psychologist at or about the time the Grievor was terminated. A fortiori here, the Employer is entitled to review the entirety of that report and should the doctor be called as a witness to examine the doctor in order to assess the reasons for the conclusions ultimately reached in that report. It is my view that the entirety of the report at this stage is arguably relevant if not entirely relevant to the matters to be determined in this case.

11In summary, since the Union has itself introduced and intends to rely on the subject medical report for its own purposes, the entirety of that report in unredacted form must be available for all purposes to the Employer in these proceedings.