Ontario Nurses' Association v. St. Joseph's Health Centre

[Indexed as: Ontario Nurses' Assn. v. St. Joseph's Health Centre]

76 O.R. (3d) 22

[2005] O.J. No. 2874

Div. Ct. No. 213/04

Ontario Superior Court of Justice Divisional Court

Lane, Jennings and Swinton JJ.

July 6, 2005

Employment -- Labour relations -- Grievance arbitration -- Employer refusing to permit grievor to return to work after medical absence for surgery unless she provided information about diagnosis and treatment -- Arbitrator ruling that employer could return to work by having her doctor respond to five questions posed by employer -- Two of those questions relating to grievor's mental health and necessitating assessment by psychiatrist or psychologist -- Court quashing arbitrator's second award requiring grievor to provide answers to those questions -- Standard of review of award that of reasonableness -- Psychiatric or psychological examination should only be available to employers where necessity for it has been firmly established -- Arbitrator transforming requirement to ask treating doctor particular question into obligation to submit to examination by medical practitioner with whom grievor had no previous relationship in order to answer intrusive question for which there was no longer any apparent reason -- Award unreasonable.

The grievor, a registered nurse, took a leave from work at the respondent Health Centre in order to undergo surgery. Several months later, she was ready to return to work. The respondent required her to fill out a form authorizing the release of medical information from her physician and required her physician to [page 23] provide other specific information, including diagnosis and details of treatment. The grievor did not consent to the release of her medical information on the basis that it was an invasion of privacy. The respondent refused to permit her to return to work without the information. The grievor grieved this refusal. In the First Award, the arbitrator ruled that while the respondent could ask for reasonable information from an employee, it could not insist that employees fill out the particular form it had used. The arbitrator ruled that the grievor could return to work by having her physician respond to five questions posed by her employer. The grievor's treating physician, a gynecologist, provided the respondent with information, but the respondent deemed the answers to be incomplete and refused to return the grievor to work. The questions at issue were: (3) whether the grievors "mental status is normal with a minimum GAF score of 90" and (4) whether the grievor's judgment was impaired because of medication or for any other reason. The establishment of a GAF score entails a comprehensive psychological assessment, and a score of 90 is the highest possible ten-point gradation on the scale of mental health. A second arbitration ensued. In the Second Award, the arbitrator ruled that the questions had to be answered. The applicant union applied for judicial review of the Second Award.

Held, the application should be granted.

Per Lane J. (Swinton J. concurring): The standard of review of administrative decisions is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and of the provision in general; and the nature of the question. There was a privative clause in this case, a factor tending to a higher level of deference. The second factor, expertise, in general calls for deference to the arbitrator in dealing with the labour relations before him or her, but may be less important in view of the specific question. The third factor, the purpose of the Act, again calls for deference to the arbitrator who must fashion remedies suitable to achieve a measure of labour- management peace without stoppage of work. The major issue before the arbitrator on the second arbitration was the balancing of the interests of the employer in protecting staff and patients versus the privacy interests of the grievor in her health information. The doctor-patient relationship is among the most private in Canadian society. The nature of the question and the common law content of any analysis of it called for less deference, perhaps a standard of correctness on this factor. However, in combination, the four factors led to a standard of reasonableness for the present review.

The weight of the arbitral cases is that employers are entitled to seek medical information to ensure that a returning employee is able to return to work safely and poses no hazard to others. The employee's initial obligation is to present some brief information from the doctor declaring the employee is fit to return to work. If the employer has reasonable grounds on which to believe that the employee's medical condition presents a danger to herself and others, the employer may ask for additional information to allay the specific fears which exist. The request must be related to the reasons for absence; no broad inquiry as to health is allowed. In this case, question 3 was particularly intrusive as answering it required submission to an examination by a doctor with whom the grievor had no present relationship. A psychiatric or psychological examination is a highly intrusive and sensitive procedure and should only be available to employers in cases where the necessity for it has been firmly established. At the time of the First Award, the arbitrator was not aware of the reasons for the grievor's absence. However, by the time of the Second Award, it was clear that the grievor had been absent for physical and not mental reasons and there was no basis in the evidence supporting a reasonable and probable ground for believing that the condition which led to the absence had any potential psychiatric or psychological consequences for the grievor's ability to perform her job. Thus, no psychological or psychiatric information or examination was appropriate. By ruling that the employer was entitled to a response to the two questions, the arbitrator transformed a requirement to ask the treating doctor a particular question into an obligation to submit to an examination by a medical practitioner with no previous relationship to the grievor in order to answer an intrusive question for which there was no longer any apparent reason. The arbitrator did not, apparently, appreciate the important change he was making to the First Award, which expressly required only the asking of the grievor's physician, and the consequent need to articulate reasons for this additional intrusion into the privacy of the grievor. The Second Award was unreasonable.

Per Jennings J. (dissenting): The parties having accepted the First Award, that decision was final and binding upon the applicant, the respondent and the grievor. Before the arbitrator, neither the grievor nor the applicant submitted that the original decision should be varied, that the questions were inappropriate, or that there was new evidence suggesting the responses were no longer required. The position the applicant put to the arbitrator was that the questions had been answered. The issue of whether there was an unreasonable invasion of employee privacy interest was raised for the first time on the hearing of the judicial review application. It was inappropriate for the court to hear an argument which could and ought to have been made before the arbitrator. For the court to take the arbitrator to task for failing to determine a matter not submitted to him by the parties was an unfair and impermissible interference into the arbitral process agreed to by the parties. On the evidence before him, it was not only reasonable but inevitable that the arbitrator held that two of the five questions, answers to which were required by the First Award, had not been answered.

APPLICATION for a judicial review of an arbitration award.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201, apld Brinks Canada Ltd. v. Teamsters Union Local 141 (1994), 41 L.A.C. (4th) 422, consd Other cases referred to St. Lawrence Lodge v. O.N.A. (1985), 21 L.A.C. (3d) 65; Tele- Direct (Publications) Inc. v. O.P.E.I.U. Local 131 (1990), 73 O.R. (2d) 52, [1990] O.J. No. 874, 38 O.A.C. 288 (Div. Ct.), affg (1989), 8 L.A.C. (4th) 159; Thompson General Hospital v. Thompson Nurses M.O.N.A. Local 6 (1991), 20 L.A.C. (4th) 129; Voice Construction Ltd. v. Construction & General Worker's Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004] 7 W.W.R. 411, 2004 SCC 23, 29 Alta. L.R. (4th) 1, 14 Admin. L.R. (4th) 165; Windsor (City) v. C.U.P.E. Local 82 (1995), 51 L.A.C. (4th) 61 Authorities referred to Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, D.C.: American Psychiatric Assoc., 1994)

Elizabeth McIntyre, for applicant. John E. Brooks and Megan Telford, for respondent. [page 25]

[1] LANE J. (SWINTON J. concurring): -- This application for judicial review explores the interaction between the right of an employer to be satisfied that an employee returning from sick leave is fit to do so and poses no threat to the health of fellow employees or patients, and the right of the employee to privacy as to her medical information.

The Application

[2] The Ontario Nurses' Association (the "applicant") brings this application for judicial review of the arbitration award of Brian Keller (the "arbitrator") dated January 8, 2004 (the "Second Award"). The Second Award addressed the implementation of a prior award dated December 19, 2002 (the "First Award"). The Second Award, in effect, ordered the grievor, Joy Campbell (the "grievor"), to submit to a psychological examination by a doctor and deliver the result to her employer, St. Joseph's Health Centre (the "Health Centre") before she would be permitted to return to work.

[3] The Association requests that this court make an order quashing and setting aside the Second Award; declaring that the grievor has satisfactorily fulfilled the conditions set out in the First Award; declaring that the grievor is entitled to return to her employment at the Health Centre; declaring that the grievor is entitled to be compensated for the period from May 16, 2001, to July 6, 2001, as set out in the First Award; and awarding the Association its costs.

Background

[4] The grievor is a registered nurse. In January 2001, she took a leave from work at the respondent Health Centre in order to undergo necessary surgery. Since May 2001, the grievor has been healthy and willing to return to work with no restrictions. However, the respondent has refused to return her to work and has continued to request further medical information from her.

[5] When the grievor first sought to return to work, the respondent required that she fill out a form that authorized the release of medical information from her physician and required her physician to provide other specific medical information, including diagnosis and details of treatment. The grievor did not consent to the release of her medical information on the basis that it was an invasion of privacy. The respondent refused to permit her to return to work without the information. The grievor grieved this refusal and the first arbitration took place, resulting in the First Award. [page 26]

[6] In the First Award, the arbitrator ruled that while the Health Centre could ask for reasonable information from an employee, it could not insist that employees fill out the particular form it had used. The arbitrator ruled that the grievor could return to work "by having her physician respond to" five questions posed by the employer (emphasis added). The grievor's treating physician, Dr. Petersiel, a gynecological surgeon, provided a detailed letter dated April 16, 2003, in response to the First Award. It disclosed that the grievor's absence was due to gynecological surgery in February 2001. He wrote:

I next saw [the grievor] in March 2003. She had no abdominal problems neither had she any chest difficulty. She felt robust and well and indeed appeared extremely fit and well. At that point she asked again that I send her another letter indicating that she was well and able to return to work. I did so indicating that she had recovered completely, was fit, active and robust and pain free.

I could see no evidence that she suffered from any disorder that would prevent her from carrying out her previous workload. She did not appear to have any evidence of either a physical or emotional disability nor did she have any evidence of a disorder such as a communicable disease, which would prevent her returning to work.

[7] The Health Centre asserted that the answers were not complete and refused to return her to work. The second arbitration ensued.

[8] The questions to be asked of the grievor's physician which are now at issue were these:

3. [the grievor's] mental status is normal with a minimum GAF score of 90.

4. [The grievor's] judgment is not impaired because of medication or for any other reason.

[9] The evidence is that the establishment of a GAF score entails a comprehensive psychological assessment. GAF stands for Global Functioning Assessment and is described in DSM-IV[^1] as a "sophisticated tool intended to be used by qualified psychiatrists and psychologists", and requires the clinician's "expert understanding of a patient's condition and of mental disorders generally". The applicant's treating physician who was asked to answer the questions is neither a psychiatrist nor a psychologist and could not give the test himself. Consequently, the necessary effect of insisting on the answer to the mental health questions was to require the applicant to submit to a comprehensive psychological assessment by a doctor unknown to her. [page 27]

[10] In the Second Award, the arbitrator ruled that the two questions relating to mental health remained unanswered and that even though the information sought was beyond the expertise of her treating physician, "that does not alter the obligation to have the questions answered". As discussed above, the Second Award effectively requires the grievor to submit to an examination by a psychologist or psychiatrist with whom she has no previous or ongoing relationship.

[11] The applicant submits that the arbitrator's Second Award, that the grievor undergo a psychological examination by someone other than her treating physician, particularly when she was not off work for mental health reasons, is patently unreasonable as it failed to consider and respect her important and considerable privacy interests. The applicant also notes that the standard set for the applicant by the arbitrator is unreasonable. A score of 90 is the highest possible ten-point gradation on the scale of mental health, which denotes:

Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms[^2].

[12] A score in the 90th percentile and up is scarcely "normal" by any standard and the description above describes a very high standard indeed. Nothing in the reasons for either Award addresses this point. Nor does the arbitrator discuss the wide scope of the examination and consider the extent to which, if at all, it was a reasonable intrusion into the applicant's privacy.

[13] The respondent stresses that there was no judicial review of the First Award and asserts that it is therefore final and binding on the issue of answering these questions. Further, the respondent submits that the Second Award is reasonable because the respondent is a hospital and so bound to take measures to protect its staff and patients. This obligation is said to trump the privacy rights of the grievor. The witness, Dr. Lantos, a physician who specializes in occupational medicine and who works for the respondent on contract, testified that the questions were not answered and therefore they had to be answered.

Standard of Review

[14] In determining the standard of review, the court applies the analysis approved by the Supreme Court in a series of cases [page 28] of which Pushpanathan[^3] is a prominent example. In these cases, the Supreme Court has developed the "pragmatic and functional" approach to determining the standard of review of administrative decisions, and the degree of deference to be accorded to the various tribunals, which the courts are called upon to supervise. In this approach, the standard of review is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and of the provision in particular; and the nature of the question.

[15] At the hearing before us, the parties agreed that the standard of review was patent unreasonableness. On reflection, the court queried this agreement and asked for written submissions. Both submissions maintained the view that generally the standard of review of a labour arbitrator's decision involving a collective agreement continued to be patent unreasonableness, but the applicant's submission was that the fourth element in the analysis, the nature of the question, might, in the present case, lead to the standard of reasonableness. The applicant described the issue as whether the employer imposed an unreasonable invasion of employee privacy interests, and stated that the case therefore required the application of common law principles relating to the balancing of privacy interests.

[16] In my view, this characterization of the nature of the question is correct and bears also on the second issue, that of the expertise of the arbitrator relative to that of the court on the privacy issues. While arbitrators have some experience in such matters, the court, at the least, shares such an expertise with the arbitrator, so that, relative to the court, the arbitrator has no advantage requiring deference to his views on the scope of the privacy right. As well, the scope of the privacy right is a question of law outside of the arbitrator's "home legislation" on which the decision must be correct. In dealing with the balancing of rights (once they have been correctly ascertained), the arbitrator has a greater claim to deference because the balancing exercise draws upon his labour relations expertise.

[17] I turn to an analysis of the other factors with reference to the case before us. There is, as always in Ontario collective bargaining cases, a privative clause, a factor tending to a higher level of deference. It is stronger than the equivalent clause in the [page 29] Alberta legislation on which Voice Construction[^4] was decided, which expressly permitted a 30-day window for judicial review. The second factor, expertise, in general calls for deference to the arbitrator in dealing with the labour relations issues before him, but may, as noted, be less important in view of the specific question. The third factor, the purpose of the Act, again calls for deference to the arbitrator who must fashion remedies suitable to achieve a measure of labour-management peace, without stoppage of work.

[18] The major issue before the arbitrator on the second arbitration was the balancing of the interests of the employer in protecting staff and patients versus the privacy interests of the grievor in her health information. The privacy of one's medical records is assured by the regulations applicable to health care professionals. The doctor-patient relationship is among the most private in Canadian society. The nature of this question and the common law content of any analysis of it, call for less deference, perhaps a standard of correctness on this factor. However, in combination, the four factors of the pragmatic and functional analysis lead to a standard of reasonableness for the present review.

Arbitral Jurisprudence

[19] We were referred to a number of arbitral cases canvassing the issue of what information an employer can require of an employee returning from a medical leave. Not surprisingly, in view of the privacy interests involved, limits of reasonableness have been developed by arbitrators[^5].

[20] The weight of the arbitral cases is that employers are entitled to seek medical information to ensure that a returning employee is able to return to work safely and poses no hazard to others. The employee's initial obligation is to present some brief information from the doctor declaring the employee is fit to return. If the employer has reasonable grounds on which to believe that the employee's medical condition presents a danger to herself or others, the employer may ask for additional information to allay the specific fears which exist, explaining the reasons [page 30] to the employee. The request must be related to the reasons for absence; no broad inquiry as to health is allowed[^6]. In my view, these are sound principles.

[21] The outstanding questions refer to two aspects of mental health. Question 3 is particularly intrusive as answering it requires submission to an examination by a doctor with whom the grievor has no present relationship. A psychiatric or psychological examination is a highly intrusive and sensitive procedure and should only be available to employers in cases where the necessity for it has been firmly established. In Brinks[^7], the arbitrator held that, even though the employee carried a firearm in the course of his duties, it was not reasonable for the employer to demand a psychiatric evaluation as a condition of a return to work. After citing arbitral authority that an employer may, where reasonable and probable grounds exist, require the employee to submit to a physical examination, the arbitrator stated the issue as whether, in the circumstances, such grounds existed in the case before him. The relevant circumstances included the need for the employer to take the utmost care that the employee was capable of dealing with the responsibility of carrying the gun. However, it was necessary to take the employee's privacy interests into account. For this reason, less intrusive measures should be adopted if they were available and the employer acted unreasonably in insisting on a psychiatric examination without first exploring less intrusive options.

[22] The grievor does not carry a gun as part of her job, but, based on the arbitral jurisprudence, it is certainly reasonable for a hospital to take appropriate precautions to ensure that returning employees do not pose a hazard to patients or staff. In some circumstances, it may be clear from the outset that mental stability is an issue. In the present case, there is no such circumstance. At the time of the First Award, the arbitrator was not aware of the reasons for the grievor's absence and one can accept that there would be a tendency to cover all the possibilities in posing questions to the treating physician. However, by the time of the Second Award, it was clear that the grievor had been absent for physical and not mental reasons and there is no basis in the evidence supporting a reasonable and probable ground for believing that the condition which led to the absence had any potential psychiatric or psychological consequences for the grievor's ability to perform her job. Thus, based on the arbitral decisions we were [page 31] referred to, no psychological or psychiatric information or examination was appropriate.

Analysis

[23] In his reasons for the Second Award, the arbitrator observes:

It is useful to recall that at the time of the first hearing and award, neither the employer nor I was aware of the reason for the grievor having been off sick, the nature of the issue, nor the specialty or expertise of Dr. Petersiel. The [First] award talks of tension between the statutory rights and obligations of the employer and the right to privacy of the grievor and concludes that the questions put to the grievor comfortably deal with that tension. That remains the case today. The employer is still entitled to the responses it seeks.

[24] Later, the arbitrator stated, without analysis or reasons, that if Dr. Petersiel was unable to answer the third question, the obligation on the grievor was to ensure that it was responded to. With one sentence, the arbitrator transformed a requirement to ask the treating doctor a particular question, into an obligation to submit to an examination by a medical practitioner with no previous relationship to the grievor in order to answer an intrusive question for which there was no longer any apparent reason.

[25] This analysis contains two errors. The first is that the arbitrator, having noted that, at the time of the First Award, he did not know the reason for the grievor being off sick, or the nature of her medical issue, does not carry the point to its conclusion by considering whether the facts as he now knows them, actually justify enforcing further answers to the questions. He asserts that the situation remains the same, and the questions still need to be answered, but that assertion is not the result of any reasoning which appears in the award. In effect, he heard important new evidence and simply stated that nothing had changed; because Dr. Lantos had said the questions had not been answered, they had to be answered by the examination.

[26] Before insisting on these intrusive questions being answered, the arbitrator should have analysed the facts as he now knew them and articulated why the questions were still needed. The importance of the privacy principle required nothing less in order to achieve fairness to the grievor. An analysis of this sort would have taken into account that it was now known that the reason for the absence was surgery of a gynecological nature from which the grievor had fully recovered. Any fear that the problem had been one as to which a psychological or psychiatric report was necessary to assure the absence of risk to the staff or patients ought to have been fully allayed. But the [page 32] report of Dr. Petersiel goes further: it assures the reader that he saw no evidence of "any disorder" that would interfere with the grievor's work, or of any emotional disturbance. There may be a reason why these assurances, against the background of a surgical and not an emotional crisis, were unsatisfactory, but if there is, it is nowhere set out.

[27] The second error was the escalation, noted above, of the requirement that information as to the grievor's mental state be obtained from her own physician, into a much more intrusive third party examination. The arbitrator did not apparently appreciate the important change he was making to the First Award, which expressly required only the asking of the grievor's physician, and the consequent need to articulate reasons for this additional intrusion into the privacy of the grievor.

[28] In my opinion, the Second Award was unreasonable and cannot stand. On the facts as known at the time of that Award, there was no longer any rationale for any inquiry into mental status. The reason for the medical absence was known and did not implicate the grievor's mental or emotional soundness.

[29] For these reasons, I would allow the application for judicial review, set aside the Second Award and declare that the applicant has satisfied the reasonable requirements of the employer and is entitled to return to work. I would remit the issue of compensation to the grievor for being kept out of her job after April 29, 2003 to the arbitrator to fix an appropriate amount. The parties agreed at the hearing that an appropriate award of costs for whichever party succeeded would be $3,000 and the applicant will have costs accordingly.

[1] JENNINGS J. (dissenting): -- I regret that I am unable to agree with my colleagues as to their disposition of this application for judicial review. In my opinion, the facts giving rise to the application do not permit the exploration upon which they embark as set out in para. [1] of their decision. I specifically disagree with the statement in para. [2] that "the Second Award, in effect, ordered the grievor, Joy Campbell (the "grievor"), to submit to a psychological examination by a doctor and deliver the results to her employer ...". That issue was raised and determined in the First Award.

Background

[2] Much of the background is contained under that heading in the reasons of my colleagues. I would add only the following: [page 33]

The arbitration leading to the First Award proceeded upon an extensive statement of agreed facts beginning at p. 173 of the Record. Those facts indicate that:

(i) the grievor, working as a part-time registered nurse commenced an absence of work on January 27, 2001 indicating that she needed time off for surgery;

(ii) in February and March 2001, the Health Centre contacted the grievor on several occasions to facilitate her return to work. The grievor informed the Health Centre that she would not authorize her physician to fill out a short-term disability form allowing the release of medical information relevant to her present condition.

(iii) On May 3, 2001, after being absent from work for unknown medical reasons for more than three months, the grievor sought clearance to return to work. She was again requested to authorize her physician to complete the short-term disability form and release medical information relevant to her present condition. She refused. She would only provide her name, address and position at the Health Centre. She indicated that she would not authorize her physician to release information relevant to her present condition.

(iv) After the grievance was filed the applicant asked the Health Centre to set out in writing the information it sought in order to be satisfied that the grievor could return to work. By letter dated July 6, 2001, the Health Centre said that it wanted the grievor's physician to confirm five matters of which numbers 3 and 4 were:

(3) The grievor's mental status is normal with the minimum GAF score of 90; and

(4) The grievor's judgment is not impaired because of medication or for any other reason.

(v) The grievor chose not to have her physician supply the requested information and proceeded to arbitration. The issue referred to the arbitrator was whether the information required by the respondent Health Centre prior to allowing a return to work was a breach of the collective agreement.

(vi) After carefully reviewing the competing interests of the respondent wishing to ensure that the grievor was fit to return to work without risk of injury to herself or others, [page 34] and the grievor's right to privacy, the arbitrator found that in the circumstances pertaining authorizing a physician to provide the answers to the five questions referred to was not unduly invasive nor was it a violation of Ms. Campbell's rights to privacy. He accepted the opinion evidence of an expert in occupational health that answers to the questions were necessary.

(vii) In coming to that conclusion the arbitrator said:

With respect to the individual grievances of the grievor I find that she was less than helpful in attempting to resolve the dispute with her employer. Flexibility was shown by the employer in trying to fulfill its mandate: the flexibility was not reciprocated. The employer in the July 6 letter felt it could accomplish its objectives by asking the grievor's treating physician to respond to specific questions, none of which sought a diagnosis. The employer was not seeking to go beyond the grievor's physician. Indeed, it was simply asking him to attest, in a more specific way than he had previously done, that the grievor was able as of that date to return to work without constituting a danger to herself, her fellow employees or patients. The grievor chose not to have her physician respond to the questions. The grievor can choose to return to work if she wishes by having her physician respond to the questions in the July 6 letter.

(viii) The decision of the arbitrator was accepted by the parties.

Standard of Review

[3] For the reasons that follow, I disagree that the applicant has correctly described the issue "... as whether the employer imposed an unreasonable invasion of employee privacy interests ..." thereby engaging a comparison of the expertise of the arbitrator and the court on the privacy issue. Nevertheless, I accept the analysis of my colleagues and their conclusion that the standard of review is reasonableness.

Analysis

[4] The parties having accepted the First Award, by reason of both the collective agreement and the applicable legislation, that decision was final and binding upon the applicant, the respondent and the grievor.

[5] No question as to the appropriateness of the questions to be posed to the grievor's physician was ever raised before Arbitrator Keller. The issue referred to him on the second arbitration was simply whether there had been responses made to the five questions put. Clearly, there was no response to question 4 which, as the arbitrator noted in his reasons, required only a simple "yes" [page 35] or "no" (in their reasons, my colleagues do not appear to have considered the failure to respond to this question).

[6] To the extent that it was needed in order to determine the issue referred, the arbitrator had before him the uncontradicted evidence of Dr. Lantos that there had been no response to question 3.

[7] In my opinion, on the evidence before him, it was not only reasonable but inevitable that the arbitrator held on the issue referred to him that two of the five questions, answers to which were required by the First Award, had not been answered.

[8] As I understand the rationale for the decision of my colleagues, it is that notwithstanding his conclusion on the issue referred to him, the arbitrator ought to have gone on to revisit his earlier award and, in effect, vary it, presumably in the light of new evidence. Their position appears to me to have resulted from their acceptance of what in my view is an incorrect statement of the issue before this court.

[9] Before the arbitrator, neither the grievor nor the applicant submitted that the original decision should be varied, that the questions were inappropriate, or that there was new evidence suggesting the responses were no longer required. The position the applicant put to the arbitrator was that the questions had been answered. The issue of whether there was an unreasonable invasion of employee privacy interest was raised for the first time by the applicant on the hearing of this application before this court. In my opinion, it is inappropriate for this court to hear an argument which could and ought to have been made before the tribunal. I would have thought this to be especially true in labour relations matters where determining grievances in light of the collective agreement is at the core of an arbitrator's expertise. I agree with the respondent's submission that for this court to entertain a position in an application for judicial review not put to the arbitrator defeats the party's agreement to submit disputes under the collective agreement to binding arbitration. Further, accepting new arguments on judicial review deprives this court of the benefit of the arbitrator's expertise on the issues in dispute.

[10] Put another way, for this court to take the arbitrator to task for failing to determine a mater not submitted to him by the parties is in my opinion an unfair and impermissible interference into the arbitral process agreed to by the parties.

[11] Regardless, the record does not reveal that there was before the arbitrator on the second arbitration any new evidence relevant to the answer to question 3. It was known at the time of the First Award that the medical leave was for a surgical [page 36] procedure. On the first and second arbitrations the nature of the procedure was known only to the grievor, and, presumably, the applicant, neither of whom shared that knowledge with the arbitrator or the respondent. It was revealed by the time of the Second Award that the attending physician was a gynecological surgeon. In essence, what the applicant seeks on this judicial review, and what the decision of my colleagues grants, is a variation of the First Award, by means of a judicial review of the Second Award. I do not perceive that to be a proper function of this court.

[12] I would dismiss this application with costs in the amount agreed payable by the applicant to the respondent within 30 days.

Application granted.

[^1]: Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, D.C.: American Psychiatric Assoc., 1994), pp. 25-35. [^2]: Ibid., p. 32. [^3]: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46. [^4]: Voice Construction Ltd. v. Construction & General Workers Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2. [^5]: See for example: Tele-Direct Publications Inc. v. O.P.E.I.U., Local 131 (1989), 8 L.A.C. (4th) 159, affd (1990), 73 O.R. (2d) 52, [1990] O.J. No. 874 (Div. Ct.), per Farley J.; Thompson General Hospital and Thompson Nurses M.O.N.A. Local 6 (1991), 20 L.A.C. (4th) 129; St. Lawrence Lodge v. O.N.A. (1985), 21 L.A.C. (3d) 65. [^6]: Windsor (City) v. C.U.P.E. Local 82 (1995), 51 L.A.C. (4th) 61, at p. 65. [^7]: Brinks Canada Ltd. v. Teamsters Union, Local 141 (1994), 41 L.A.C. (4th) 422.