St. Joseph’s Health Centre v. Ontario Nurses’ Association
1508-01-HS; 1509-01-HS St. Joseph’s Health Centre, Applicant v. Ontario Nurses’ Association, Joy Campbell, Canadian Union of Public Employees, Local 1144, Brewery General & Professional Workers Union, and Ministry of Labour, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; October 12, 2001
1Board File Number 1508-01-HS is an application filed with the Board for an order suspending an order made by an inspector in accordance with section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.O-1 as amended (the “Act”).
2The appeal itself concerns one individual employee and her refusal to provide medical information to the employer. The employer contends that it is entitled to more information than the employee has provided and her trade union (on her behalf) contends that it is not. The employee’s position is that the employer is not entitled to any additional information. A grievance has been filed in relation to this matter.
3By decision dated October 2, 2001 the Board allowed one of the parties, Canadian Union of Public Employees, Local 1144, an opportunity to respond to the suspension request. It has chosen not to do so and the Board will deal with that request on the basis of the submissions provided by the other parties.
4The factors to be considered when assessing whether a suspension order is appropriate are described in the decision of Adjudicator Herman in General Motors of Canada Limited (Board File No. 3666-96-HS, June 2, 1997). These three factors have generally been considered by adjudicators when determining whether a suspension of an order is warranted in the circumstances:
(a) whether the suspension of the order would endanger worker safety;
(b) the prejudice to the parties if the order is or is not suspended; and,
(c) whether there is a strong prima facie case for a successful appeal of the order.
5In this case the applicant is seeking the suspension of order #989379 dated July 25, 2001 of an Inspector which reads as follows:
No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute to a health record concerning a worker without the worker’s written consent
6The order in substance and in form is simply the words of the statutory provision contained in section 63(2) of the Act.
7The employer provides submissions on each of the three factors noted above to be considered in a suspension request. First, it asserts that the suspension would not endanger worker safety. That is only disputed by the Ontario Nurses’ Association (“ONA”) and not the other responding parties including the Ministry of Labour. I am not ruling on this aspect of the case as the majority of the responding parties do not take issue with it.
8Second, on the issue of prejudice the employer contends that since the Inspector mirrored the language of the statute that suggests that the employer acted in contravention of the Act. It asserts that if it is not able to obtain complete medical information from employees, then its operation will be prejudiced specifically in relation to its attendance management program. The Ministry of Labour does not object to the suspension of the Order but asserts that the Order does not prevent the employer from making requests of its employees for medical information nor does it prejudice the employer in a general sense being made in the context of these specific facts. On the issue of prejudice, the Brewery General & Professional Workers Union and ONA also contend that the employer is not prejudiced by the refusal to suspend the Order.
9Finally, on the issue of strong prima facie case on the merits, the employer contends that it has not, by asking for additional medical information from this worker, violated the provisions of section 63(2) and further it asserts that the documents protected by the statutory provision are only those that are within the employer’s control and not the documents here at issue.
Decision
10The employer’s request to suspend is denied. The main thrust of this case involves one employee and the contest between her (her trade union on her behalf) and her employer (which contest may as a consequence affect other employees and other trade unions in the workplace). The parties in their suspension material have spoken primarily of the main issue in dispute regarding the employer’s rights and the employee’s obligations in respect of medical information. That dispute will be heard before a Board of Arbitration and the appeal of the Inspector’s Order will be scheduled before this Board. The parties are governed by the statute and suspending an order that mirrors the statute is not warranted. There is no prejudice to the employer in respect of that dispute in allowing the order to stand. In light of these considerations there is no good reason to vary the Inspector’s order at this time.
“Marilyn Silverman”
for the Board