GSB# 2024-00892

UNION# 2024-0520-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Zhao)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Kumail Karimjee

Arbitrator

FOR THE UNION

Ed Holmes Daniel Perez Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 21, 2026

Decision

INTRODUCTION

1This award addresses disputes relating to the production of the grievor’s medical records and information. The Union seeks restrictions on the distribution and use of the grievor’s medical records. The Employer seeks additional disclosure of medical records.

BACKGROUND

2This grievance alleges harassment, bullying, and preferential treatment of other employees resulting in an alleged lack of workplace opportunities and career advancement for the grievor.

3The grievance claims both the failure to accommodate and medical impacts of the Employer’s alleged treatment. Both the accommodation and medical impact claims rely on allegations of stress and anxiety. These are the “conditions” in issue. The grievance form itself refers to “…years of mistreatment causing undue stress & negatively impact my well-being.” The grievor relies on medical documentation in support.

ANALYSIS AND DECISION

4There is no dispute that certain medical records are arguably relevant. However, there is a dispute over the scope of production required and whether there should be restrictions on the use and dissemination of the records. In addition, the grievor initially objected to Farshad Mahlooji, Director, Community Services I & IT Cluster, acting as the Employer’s instructing client. The parties ultimately agreed that Mr. Mahlooji would continue to instruct the Employer. However, the grievor maintains that Mr. Mahlooji, despite acting as the Employer’s instructing client, should not be permitted to view her medical documentation and information. The Union clarified that by “medical information” it means references to the grievor’s medical issues within the Union’s particulars and it is in this sense that the term medical information is used in this decision.

5The Union produced some medical records. However, it appears that the grievor vetted the medical records (i.e. not Union counsel) before their release to Union counsel and the Employer. The medical records produced include a notation by the grievor’s doctor stating “she [the grievor] will specify what she wants and does not want included in the release.”

6The Employer points to what appear to be various gaps in the record produced. For example, some clinical notes start part way through an entry or end before an entry is complete. There are dates referenced in receipts for which there do not appear to be corresponding clinical notes. There is a reference to an email communication from the grievor to her doctor that has not been disclosed. None of the doctor’s communications with the Employer’s Disability Accommodation Specialist were produced. There are no visible redactions (i.e. blocked out areas) in the record produced. Redactions appear to have been made but it is not clear where or on what basis.

7The Union agreed to produce the grievor’s email communication to her doctor referenced in the record and does not object to the Employer accessing communications sent to the Employer’s Disability Accommodation Specialist.

8Both the Union and the Employer bring preliminary motions regarding the medical records and information.

9The Union seeks certain safeguards to address the grievor’s confidentiality and privacy concerns over the medical records and information produced. Specifically, it seeks an order:

a. That restricts the sharing of the grievor’s medical documentation and information with only the Employer’s Employee Relations Advisor, Disability Accommodation Specialist, and any medical expert retained.

b. That Mr. Mahlooji, the Employer’s instructing client, individuals named in the grievor’s Workplace Discrimination and Harassment Prevention (“WDHP”) complaints, and individuals whose conduct is the subject of this grievance do not receive any of the grievor’s medical documents and information.

c. That the grievor’s medical documentation and information only be used for the sole purpose of the arbitration of this grievance.

d. That all copies of the grievor’s medical documentation and information disclosed by the Employer as part of this arbitration, in any format, be destroyed or returned to Employer counsel by persons in possession of them at the end of the arbitration of this grievance.

10Further, the Union requests that if I order production of additional medical records (which the Union resists), that the same restrictions set out above apply and there be a process in place for redacting any personal and irrelevant information before disclosure.

11The Employer requests the disclosure of the complete files of Dr. Elisa Venier, and any other treating physician, from April 1, 2023 to September 30, 2025. The grievor’s allegations in this grievance go back to at least April 2023. The Employer submits that given that causation (of the grievor’s conditions) is in issue, it is reasonable to request records commencing April 1, 2023. Further, it submits that if there are redactions, the redactions should be clearly marked.

12In response to the Employer’s request, the Union states that the grievor’s position is that she has already provided all arguably relevant documents. The medical records produced commence in December 2023; however, the grievor represents that the first medical entry for anxiety and stress related issues is from December 2023.

13The parties relied on case law dealing with the disclosure of medical documents in matters before the Board and at labour arbitration. I accept that there is a need to balance the production of arguably relevant documents needed to ensure a fair hearing with the grievor’s privacy concerns. In my view, having considered the submissions of the parties and the case law relied upon, there is a need for further disclosure and also a need for safeguards to protect the grievor’s privacy interests. My reasons and specific order are as follows.

14First, it is not appropriate that the grievor herself control the vetting of the disclosure of the medical records. The Union is required to produce all arguably relevant documents. Union counsel has not had an opportunity to review the grievor’s full medical documents, determine what is arguably relevant, and ensure that the Union has met its disclosure obligations. As set out above, the grievor vetted the medical records before release to Union counsel.

15The actual records produced on their face appear to be missing parts of relevant entries; however, there are no clear markers of the redactions or reasons stated for the redactions. In my view, the Employer’s concern regarding whether it has in fact received all arguably relevant medical documents is valid. As such, I order that the Union produce all medical documents from the grievor’s doctor, Dr. Elisa Venier, for the period from April 1, 2023 to September 30, 2025, subject to redaction by the Union’s external counsel of any personal and medical information that is not arguably relevant to this proceeding.

16By way of process, release in the first instance of Dr. Venier’s clinical notes for the full period from April 1, 2023 to September 30, 2025 for the grievor will only be to the Union’s external legal counsel for the sole purpose of identifying the arguably relevant documents. In my view, determining what is arguably relevant to this case based on the Union’s very lengthy particulars requires the exercise of judgment and is not a matter that can be left to the grievor to direct and control. In addition to full clinical notes, Dr. Venier must also release directly to the Union’s external counsel any other notes, charts, memoranda, reports, emails, letters, or documentation relating to the grievor’s anxiety and stress conditions for the same period (April 1, 2023 to September 30, 2025). This includes Dr. Venier’s communications to the Employer’s Disability Accommodation Specialist. Again, Union counsel may redact any personal and medical information that is not arguably relevant to this proceeding before release to Employer counsel.

17To summarize, regarding the production of further medical records, I order:

a. Dr. Venier’s clinical notes for the full period from April 1, 2023 to September 30, 2025 for the grievor shall be released directly by Dr. Venier to the Union’s external counsel.

b. In addition, beyond clinical notes, any further notes, charts, memoranda, reports, emails, letters, or documentation for April 1, 2023 to September 30, 2025 from Dr. Venier’s medical records for the grievor relating to the grievor’s anxiety and stress conditions shall be released directly by Dr. Venier to the Union’s external counsel.

c. Union counsel may redact any personal information and medical information that is not arguably relevant to this proceeding before release to Employer counsel. Redactions shall include, a) any personal identification numbers and the grievor’s address, b) any references to medical conditions unrelated to the conditions of stress and anxiety, the medical conditions at issue in this case.

d. All redactions must be marked in a way that shows that redactions have been made (i.e. blocked out). If the Employer disputes any of the redactions, a case conference may be requested.

18Second, I accept the Union’s submission that limitations on the use and dissemination of the grievor’s medical records are required to address the grievor’s privacy concerns. I have considered the Union’s requests and find the framework set out in OPSEU (Sparkes) v. Ontario (Ministry of Community Safety and Correctional Services 2019 CanLII 42366 (ON GSB) (Misra) helpful.

19I am not persuaded that it is appropriate to prohibit the Employer’s instructing client from viewing documents that are relevant to this proceeding. Practically speaking, the instructing client, through attendance at the hearing, will hear any evidence called, including medical evidence. Further, the Board’s case law relied upon by both the Employer and Union, while supportive of safeguards to address privacy concerns relating to medical records, does not support prohibiting instructing clients from viewing relevant documentation. However, I am prepared to order that the sharing of medical documents and information with Mr. Mahlooji and for use generally in this proceeding shall be subject the following restrictions.

a. Employer counsel may only share the grievor’s medical documents and information with its instructing clients (Mr. Mahlooji and Employee Relations Advisor) and its Disability Accommodation Specialist for the purposes of obtaining instructions and/or preparation for the hearing. Employer counsel may also share the grievor’s medical documents and information with any medical expert retained.

b. If Employer counsel wishes to share the grievor’s medical documents and information with any witness, Employer counsel will advise the Union in advance of the witnesses with whom they wish to share medical documents and information and a case conference may be requested if there is an objection.

c. The individuals referred to in paragraphs 19. a. and b. above may not share any of the grievor’s medical documentation or information with anyone else.

d. Employer counsel may not share the grievor’s medical documents and information with anyone other than as provided for in paragraphs 19. a. and b. without consent from the Union or an order from the Board.

e. No copies shall be made of any medical documents or information except for the purpose of the arbitration of these grievances.

f. The grievor’s medical documentation and information shall only be used for the sole purpose of the arbitration of this grievance.

g. Any individual with access to the grievor’s medical documentation or information as a result of this arbitration must treat the information as confidential.

h. All copies of the grievor’s medical documentation and information disclosed in this arbitration by Employer counsel pursuant to paragraphs 19. a. and b. above, in any format, shall be destroyed or returned to Employer counsel by persons in possession at the conclusion of this arbitration and any judicial review.

20For the purposes of this Order, Employer counsel shall include any personnel within the Treasury Board Secretariat Legal Services Branch who may be involved in the arbitration of this grievance.