GSB# 2024-00159; 2024-00504; 2025-00446; 2025-00928

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

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

Association

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 10, 2025

Decision

1The Association of Management, Administrative and Professional Crown Employees of Ontario, hereinafter (“AMAPCEO”) filed a dispute on January 15, 2024, on behalf of a member (hereinafter “ N”). The relevant portion of the dispute relevant for the present purposes are as follows:

AMAPCEO asserts that the following Collective Agreement articles have been violated:

• Article 2 – Non-Discrimination;

• Article 3 – management Rights;

• Article 37 – Short-Term Sickness Plan;

• Article 44 – Salary;

• The Employer’s Disability Accommodation Policy; and

• Any other Collective Agreement provision, employer policy, or law applicable to this dispute.

Given that N was cleared to return to work as of October 26, 2023, by Dr. C and yet the Employer has not allowed her to return to work nor attempted to accommodate her, we seek the following redress:

• That N be paid retroactive to October 26, 2023, 100% of her salary;

• That N’s sick days and vacation credits used since October 26, 2023, be returned to her;

• That N be allowed to immediately return to full-time work with an interim accommodation to work from home while the parties attempt to put in place a formal accommodation plan;

• That the Employer pay N. $20,000.00 in human rights damages for injuring her dignity, feelings and self-respect;

• That N be given access to the compassionate transfer process; and

• Any other redress necessary to make the Complainant whole.

2This decision deals with a request by the employer for pre-hearing disclosure of the complete medical file of N which is opposed by AMAPCEO. The employer’s letter of request dated October 3, 2025, reads:

At this time, the Employer is requesting the disclosure of any and all medical records in relation to the Complainant’s chronic medical condition which may impact her ability to perform the full duties of her position and/or require accommodation for the period of September 2022 and May 26, 2025, including but not limited to records from her family doctor and rheumatologist.

The Employer agrees that the Complainant has a disability with restrictions and limitations. However, to the extent that the Union claims that the Employer didn’t ask the right questions with respect to her restrictions and limitations, it is relevant to what information the “right” questions would have yielded. Separately, the Union has asserted not only a procedural breach but also a substantive breach, which puts at issue whether the Complainant could have been accommodated based on her medical condition. Further, the Complainant is expected to cooperate with respect to accommodation; relevant information on her restrictions and limitations appears to have been withheld from the Employer, including but not limited to information on her cognitive limitations. As well, the Union has asserted that employer’s decision to not issue a merit increase is discriminatory because of her disability contributed to her poor work performance.

3The parties added two other disputes to the main dispute set out above. The employer’s request for medical disclosure pertains to all four grievances, and particulars for all four have been provided.

4The second dispute dated February 7, 2024, alleges violation of the Human Rights Code of Ontario; Article 3; Article 15.5.9; Article 45 of the collective agreement and the Employee Performance Policy. The third grievance alleges the following violations: Article 2; : the OPS Disability Accommodation Policy; the OPS Health Reassignment Program Guide; the Joint Employment Accommodation Sub-Committee Terms of Reference; the Ontario Human Rights Commission’s “Policy and Guidelines on Disability and the Duty to Accommodate”; the Human Rights Code of Ontario; Article 37.1.

5The parties jointly requested that names of all persons who were involved in this matter, including the complainant, be anonymized in this decision, and agreed that the cut-off date for admissible evidence is May of 2025.

Employer Submissions

6Counsel noted that in the request for medical disclosure the employer has specifically stated that it is open to discuss with AMAPCEO conditions relating to the use and confidentiality of the medical information.

7Counsel referred to information AMAPCEO has set out in its particulars and submitted that it has clearly put N’s health from around September of 2022 into issue. Counsel referred to paragraphs 91-92 where AMAPCEO asserts that the employer’s treatment of N, particularly by removing her from her position, constitutes prima facie discrimination because she had a well-established diagnosis. AMAPCEO has alleged that she suffered adverse treatment by the employer after her treating physician Dr. C declared her medically fit to return to work from October 26, 2023, and the adverse treatment was a result of N’s disability.

8Counsel pointed out that AMAPCEO claims that the employer has mischaracterized what the doctor wrote in a questionnaire submitted in December 2023. For instance when the doctor wrote that the complainant was required to lie down for 15 minutes at a time every 2 hours, that the employer wrongly characterized that restriction as meaning that N was unable to execute the essential duties of her position, and that the doctor later clarified that N could perform the duties, if she is able to lie down periodically for 15 minutes to alleviate muscle pain and fatigue.

9Employer counsel referred to another questionnaire dated December 17, 2022, N submitted in support of her request for accommodation to work from home. In it Dr. C set out the following limitations/restrictions: temporary restriction on walking sitting and standing; (10 minutes at a time/ 3 hours in a day); avoid lifting, bending, twisting squatting and kneeling. The doctor added a note “the patient is diagnosed with an auto immune condition which is not curable and has periods of flare-ups and remissions”. The following was noted as details of the health condition, which were of indeterminate duration and temporary. “Chronic pain limiting mobility, requiring frequent changes in position, breaks, stretches, rest and pain management; chronic fatigue as a side effect of medical condition and immunosuppressants; Immunosuppression due to medications”.

10Employer counsel went on to review several other medical notes and questionnaires from doctors and medical practitioners, including a Health Information Questionnaire dated November 9, 2023.

11Counsel referred to a document dated December 1, 2023, it prepared in which all of the medical information it had received from N’s health professionals. It was specifically noted the requirement that N would need to lie down for 15-minute periods, up to 2 hours each workday means that she would be executing duties only for 5.25 hours each workday and would use 2 hours of STSP credits per day.

12The employer documents further noted that the doctors have also found that N had cognitive limitations, including difficulty with completing work with time deadlines or on short notice, doing multiple tasks or working beyond normal hours.

13Counsel submitted that after reviewing all the medical information, the employer reasonably concluded that since it has an obligation to accommodate N to the point of undue hardship, it would be seeking advice and guidance on how best to accommodate her in the OPS, either within the MOF or in the broader OPS, and that in the meantime N would remain on leave using STSP credits. N was encouraged to consider applying for LTIP benefits, to take time off to focus on treatment and her health.

14Counsel noted that AMAPCEO has indicated that it would be taking issue with the employer’s interpretation of the medical information it had received with respect to N’s physical and cognitive limitations.

AMAPCEO submissions

15Counsel submitted that in substance the dispute between the parties in the accommodation and health reassignment grievances is the same. That is, the legitimacy of the employer’s decision to remove N from her level 6 position on the grounds that she was not able to perform the duties of that position. The task of the Board at this stage is to determine whether there is a nexus between the medical information the employer wants produced and the issue in dispute between the parties.

16Counsel referred to the description of the issue in dispute in AMAPCEO’s particulars, (supra para.2) which employer counsel had referred to in her submissions. Counsel submitted that this is not a case where the employee is initiating an issue that she is unable to do some aspect of her job due to disability. It is the employer seeking more medical information where the employee has been found by her doctor to be able to do her duties with accommodation, and she wants to work in her position, provided her disability is accommodated. Referring to documents filed, counsel pointed out that it was the employer that decided to remove N from her position and move her to another position on health reassignment on the ground that she could not do her own job due to her restrictions. The employer took the position that if N was allowed to continue in her own position that would have resulted in undue hardship to the employer as well as other staff. In effect the employer was asserting undue hardship if N was allowed to continue in her own job with the requested accommodation. Referring to documents filed, counsel pointed out that it was the employer that decided to remove N from her position and move her to another position on health reassignment, on the basis that she could not do her own job due to her restrictions. The employer took the position that if N is allowed to continue in her position, that would result in undue hardship to the employer as well as to other staff. In effect the employer was asserting undue hardship if the complainant was allowed to continue in her position with the requested accommodation.

17Counsel pointed to the documentary evidence that the employer kept asking for more medicals, and N complied with all requests, despite the stress and the time involved. Counsel stated that the employer got everything it requested.

18Counsel also submitted that the employer did not at anytime assert that the medicals provided by the doctors were wrong or unreliable. There is no evidence that N was withholding any information. Despite having all the information it requested and needed, the employer failed to explore options for accommodating N’s restrictions in violation of procedural rules under the OHRC and failed substantially to accommodate N to the point of undue hardship as it was obliged to do by law.

19Counsel submitted that it is up to the employer to establish undue hardship, and it has all the medical information it needs to do that. The employer must satisfy the Board that the medical restrictions in the information it had received, do not allow it to accommodate N without suffering undue hardship.

20Counsel submitted that to prove undue hardship the employer does not need N’s whole medical file. Given what it has already requested and received, seeking anything more is a fishing expedition. There should be no dispute that at least at this stage of the proceeding, the employer has all the medical information it needs. If later in the proceeding it becomes apparent that some additional relevant information is missing, the employer should be able to request it. At this stage such a broad request for the whole medical file, which would contain irrelevant confidential information would result in unnecessary waste of time, disproportionate and prejudicial to N.

21The employer relied on the following authorities. Dufferin Concrete and TC Local 230 (2015) 264 L.A.C. (4^th) 1 (Luborsky); Carleton University and CUASA (2019) 306 L.A.C. (4^th) 282 (P. Picher); Re OPSEU (Sparkes) and Ministry of Community Safety and Correctional Services (GSB) 2019 Carswell Ont 6494 (Misra); AMAPCEO (Szewczyk) and Ministry of Environment; (2014) 8296 (Ont); GSB (Herlich); United Steelworkers, L. 7656 and Mosaic Potash Colonsay ULC, 2016 18320 (Sask LA) (Hood); Stelco Inc. (Hilton Works) and USWA, Local 1005, 1994 CanLII 18600 (ON LA), 42 L.A.C (4^th) 270 (Dissanayake).

22AMAPCEO relied on the following authorities:

OPSEU (Ranger) v Crown (MCSCS) 2010 7275 (GSB) (Leighton); Gaisiner v Method Integration Inc. 2014 HRTO 1718; Ontario Liquor Board Employees’ Union (Sanfilippo) and LCBO, 2005 CanLII 55184 (ON GSB) (Watters); Vancouver Shipyards Co. Ltd. V Marine and Ship Builders, Local 506 2022 ,100825 (BCLA); West Park Hospital v Ontario Nurses’ Association, 1993 CanLII 16806 (ON LA) , 37 L.A.C. (4th) 160, (Knopf); Unite Here Local 75 v Fairmont Royal York 2004 (Rogers); Oliver Paipoonge (Municipality) and LiUNA Local 607 (Koutney Grievance) 1999 CanLII 35857 (ON LA), 79 L.A.C. (4^th) 241, 1999 CarswellOnt 3359 (Whittaker); Dufferin Concrete v Teamsters, Local 230 (Storey) 2015 OLAA No. 417 (Luborsky); OPSEU (Kopec) Ontario Attorney General, 2022 CanLII 47251 (ON GSB) (Hewat); OPSEU (Horning) v Ontario Solicitor General, 2020 20375 (Petryshen); Ontario (MYCS) and OPSEU (Hyland), 2006 CanLII 93277 (ON GSB) (Petryshen); OPSEU (Grievor) v MCSCS 2019 CanLII 21739 (ON GSB) (Gee).

Analysis and Conclusion

23The grievances before the Board themselves are about the employer’s decision to remove N from her level 6 position. AMAPCEO claims in the grievance that the health restrictions N had at that time did not prevent her from working in her position, if the employer had accommodated her restrictions as it was obliged to do. It is alleging that the employer violated the duty to accommodate, procedurally and substantially, by failing to properly consider whether it was possible to allow N to continue in her position despite her restrictions, without causing undue hardship to itself or other staff.

24The employer and AMAPCEO agree that N had a disability. The employer does not dispute that it had the legal obligation to accommodate her to the point of undue hardship. The disagreement is whether the point of undue hardship had been reached at the time the employer decided to remove N from her position.

25This decision however is not about the merits of that grievance. That will be done at hearings on the merits of the dispute scheduled on future dates. My present task is to determine whether the employer is entitled to disclosure of N’s medical file in advance of the future hearing on the merits.

26For purposes of this decision, I rely on the facts asserted by AMAPCEO in its particulars and the documentary evidence, including medical documents produced to the employer and communications between the employer, AMAPCEO, N, and her doctors, entered on consent. It is important to note that my reliance on those facts is solely for the purposes of this decision, and neither party is prevented from leading contrary evidence at the hearing on the merits, if otherwise admissible.

27I have reviewed the extensive case law relied upon by each of the parties. Many of the authorities were about the law on the duty to accommodate disabled or sick employees. My focus at this stage is only about the employer’s request for more production of medical information. I will refer to general principles relating to the duty to accommodate and the authorities on those principles only to the extent they are relevant to the production issue before me.

28The thrust of the employer’s submission was to the effect that by seeking accommodation on the grounds that she was disabled, N has put her health in issue, and once she does that, the employer is entitled to full medical disclosure. Counsel argued that the employer is not required to accept an employee’s claim of disability without satisfying itself that the claim is supported by medical evidence. The employer is also not obliged to accept medical notes or other information provided by an employees’ health professionals at face value. It is entitled to make sure that those medical documents were based on accurate objective medical investigation. This can only be done if it is able to review the whole medical history of the employee.

29I do not agree that any time an employee seeks health related accommodation the employer is entitled to full medical disclosure. The arbitral jurisprudence is well established that medical disclosure depends on a balancing of the need to keep medical information confidential, and the need for employers to defend when faced with accommodation grievances. To achieve this balance, arbitrators have established certain factors that have to be considered before the medical disclosure is ordered.

30The often-cited decision in West Park Hospital (supra) was also dealing with a request for pre-hearing disclosure of medical information. At paragraph 47, the Board wrote:

“However, where the disclosure is contested, the following factors should be taken into consideration. First, information requested must be arguably relevant. Second, the information requested 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 position in dispute at the hearing. Further, the Board should be satisfied that the disclosure will not cause undue prejudice”.

31In West Park Hospital, the grievance was about the discharge of the grievor for alleged incompetency. The Board, after acknowledging the importance of keeping medical information confidential, at p. 168 concluded that “In this case, it is easy to speculate that the medical information relating to the grievor may become relevant during the course of the case. But at this stage of the proceeding, where the grievor has been discharged for competency related issues, we are not satisfied that medical information is even arguably relevant at this stage”.

32In Toronto Transit Commission, and ATU Local 113, 2016 CanLII 87623 (ONLA) Arbitrator Stout, at paragraphs 24-25, referred to a decision by Arbitrator Shime in Toronto District School Board and CUPE, Local 4400, (2022) 2002 CanLII 79047 (ON LA), 109 L.A.C. (4^th) 20. Dealing with production of documents in general, Arbitrator Shime stated that “all documents which are arguably relevant or seemingly relevant or have some semblance of relevance must be produced”. Arbitrator Stout described this as a more liberal and expansive approach to production of documents which Arbitrator Shime found to be more consistent with that of the courts in civil and criminal matters. Arbitrator Stout reviewed arbitrator Knopf’s approach in West Park Hospital, and at paragraph 35 wrote:

“While I feel that the TDSB liberal approach is no longer appropriate, I am also not convinced that a test based on relevance is the answer. I am of the view that some component of discovery must be recognized, and arbitrators must exercise their discretion in a balanced and reasonable manner to ensure that the parties receive a fair, but expedited hearing. I appreciate that the production of documents can sometimes lead to discussions to resolve the matter. However, document production should not be a license for party to engage in a fishing expedition to determine if they have a case. Rather, document production should assist the parties in organizing their case so that it may be heard in the most expedited manner”.

33In adopting the approach in West Park Hospital, (supra) Arbitrator Stout stated that it is a “more balanced, practical and pragmatic approach to the issue of production. This approach recognises an element of discovery but also places limits on broad requests that can cause delay and unnecessary costs”.

34Arbitrator Shime’s comment in TDSB was stated to be “in dealing with production documents in general”. I am convinced that currently, at least as far as production of medical documents is concerned, the expansive liberal test of even “remote possibility of arguable relevance” is not appropriate. When the requested production involves medical information an added element of the need to maintain confidentiality as much as possible must be given serious consideration. The factors in West Park Hospital were set out in the context of a request for medical production, whereas the TDSB was not. Therefore, there is more compelling reason to prefer the more balanced approach in that decision. Those factors must be applied and considered on a case-by-case basis, considering the particular facts, the scope of the request for medical information and the positions of the respective parties.

35In Becker Milk Co. and Bread Drivers, Dairy Employees, Caterers & Allied Employees, L. 647, (1996) 1996 CanLII 20358 (ON LA), 53 L.A.C. (4^th) 420 (Joyce), at paragraphs 24-26, the arbitrator reviewed the arbitral jurisprudence, including West Park Hospital, and summarized the factors arbitrators apply where pre-hearing production of employee medical records are requested. Having set out the six factors in West Park Hospital, Arbitrator Joyce added a 7^th factor as follows: “Where on reasonable grounds the employer is not satisfied with the certification offered by the employee, the employer may demand that the employee secure additional certification or undergo further medical examination”.

36There is now arbitral consensus that an employee’s medical information is prima facie confidential unless there is entitlement in a collective agreement or statute. However, arbitrators allow for production of medical information where they are satisfied that the employer in a particular case has reasonable grounds to doubt the reliability of the medical certification provided by the employee. In Hamilton Health Sciences and O.N.A. (2007) ONLA (Surdykowski), this exception was illustrated as follows:

“For example, if the employer has an objective reason to doubt that the doctor who signed the medical certificate actually saw or made any professional evaluation of the employee, or that the doctor was qualified to provide the assessment in the certificate, or suspects that the employee had gone “doctor shopping” or has information that casts doubt on the bona fides of the alleged illness or injury, the employer is entitled to seek additional information that is specific to and reasonably necessary to address its concerns”.

37I now turn to determine whether the employer’s request for pre-hearing production in the instant case should be ordered in the exercise of my discretion, in light of the relevant facts before me, and the positions of the respective parties. The employer’s position is that since N’s health is in issue as a result of her claim that the employer has violated its duty to accommodate the employer is entitled to her complete medical file. This is inconsistent with the decisions I have reviewed above.

38AMAPCEO does not dispute that N has health related restrictions and that the employer is entitled to medical disclosure. AMAPCEO’s position is that in the particular circumstances of this case, the employer is not entitled to any more production than what it has already received. N’s claim for accommodation puts into issue only her ability to do the duties of her own position. Her restrictions are clearly set out in the medical disclosure the employer has requested and received. The employer has not disputed that she has those restrictions. In fact in its request for disclosure itself (supra) it states that “The employer agrees that the complainant has a disability with restrictions and limitations.” The employer also knows the duties that form part of N’s position. The employer also has not asserted that it has reason to believe that the medical certifications of those restrictions are incorrect or unreliable. Nor has the employer alleged any bad faith on N’s part.

39In its request the employer has asserted that “relevant information on her restrictions and limitations appears to have been withheld from the employer, including, but not limited to information on her cognitive limitations”. However, it has not put forward on what basis it suspects that N selectively withheld any medical information. The employer had the opportunity to request whatever medical information it needed. It used that opportunity as evidenced by the many requests including multiple detailed questionnaires that were completed by N’s doctors. There is no assertion that they were not provided any of the information requested. The employer has not suggested that the doctors who certified the medical information lacked qualifications or had not actually been treating N. There is no concern about “doctor shopping”, or that the medical certifications were not objective and genuine. The employer has accepted N had the medical restrictions as certified by the medical professionals. Therefore, N’s health is not in issue between the parties. Unlike in Dufferin Concrete here there was no suggestion that N refused or objected to any of the requests for medical information made by the employer.

40An overriding principle relating to production is that the information requested must be arguably relevant. Here, the employer has received production relating to N’s specific medical restrictions which it has accepted, and it knew the job duties of the position at issue. As noted, there is no allegation of bad faith about the claimed restrictions or the medical certification of the existence of those restrictions. Yet, the employer has not particularized what information is still lacking. The employer has not pointed out why the whole medical history of the complainant is required for it to decide whether it is able to accommodate N in her position given her known restrictions and duties of the position concerned.

41There is no nexus between the request for the whole medical file and the issue in dispute at this stage of the proceeding. More medical information may become relevant and subject to production, depending on the positions taken and evidence tended by AMAPCEO at the hearing on the merits. At this stage the request for disclosure of the whole medical file is nothing more than a fishing expedition.

42N’s medical history over several years may, and very likely will include health information that has nothing to do with the grievances she has filed. Even if conditions are agreed to or ordered by the Board to limit its use and sharing, inevitably confidential medical information not arguably relevant will be exposed to some management and labour relations staff. That goes against the principle that medical information should not be shared unless arguably relevant and necessary. That clearly is not the case here.

43I have no hesitation given the circumstances of this case that at this stage of the proceeding the employer is not entitled to any further production of medical information. The employer’s motion is therefore dismissed, and the Board remains seized.