P-2005-3536
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Jones
Complainant
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Deborah J.D. Leighton
Vice-Chair
FOR THE COMPLAINANT
Ruth P. Orton-Pert Mousseau DeLuca McPherson Prince LLP Barristers and Solicitors
FOR THE EMPLOYER
Ferina Murji Ministry of Government Services Counsel
HEARING
January 19, 2010.
Decision
1The complainant in this matter has applied to the board under the Public Service of Ontario Act, alleging that her dismissal from employment was without just cause. At the outset of the hearing, counsel for the employer presented a motion for production of certain medical documents. The employer seeks the production of the following documents:
All copies of the clinical notes and records of the grievor’s general practitioner and any and all specialists from the date April 1,2007 to October 31, 2009;
The complete file of Dr. Felicity Davies, the complainant’s psychiatrist, from April 1, 2007 to October 31, 2009 including all clinical notes and records, charts, tests and any other record or note including correspondence from the grievor’s counsel;
The decoded OHIP form for the grievor from April 1,2007 to October 31, 2009.
The employer reserved the right to ask for additional documents depending on the results of the production from the complainant. The complainant opposes the production of these medical documents, primarily on the basis of arguable relevance and privacy concerns. This decision therefore addresses the motion for production of medical documents.
Submission of the Employer
2Counsel for the employer argued that the issue before the parties in this application is a narrow one. The issue is whether or not the complainant abused her short term sick leave when she attended school. The complainant takes the position that attending school while she was on short term sick was part of a treatment plan recommended to her by her psychiatrist, who will be testifying to that opinion. Counsel for the employer argued that since the complainant has placed her health and wellbeing at issue in the grievance, the employer is entitled to the medical production it requests. Counsel argued that it is arguably relevant, that it has been requested with sufficient particularization and that it is not merely a fishing expedition.
3Counsel for the employer also noted that another factor in assessing whether or not production ought to be made in these cases is whether there would be undue prejudice to the complainant. She noted that there had been no disclosure of any prejudice to the grievor. Counsel argued further that when a grievor put her medical health at issue, she was not entitled to pick and choose as to what medical evidence would be presented to the board. Counsel argued that the Grievance Settlement Board decisions have held that a party relying on a medical document cannot do so in a vacuum and that the individual must provide all medical documents that form the basis of such an opinion or document. Finally, the request for damages for pain and suffering also supports an order for production of medical documentation. Counsel relied on the following cases in support of her submission: Sysco Food Services of Toronto and Teamsters, Local 419 [2006] O.L.A.A. No. 340 (Briggs); Stelco Inc. v. U.S.W.A., Local 1005 [1994] 42 L.A.C. (4th) 270 (Dissanayake); Celgar Pulp Inc. v. P.P.W.C, Local 1 1999 CanLII 35876 (BC LA), [1999] 85 L.A.C. (4th) 436 (Hickling); British Columbia and B.C.G.E.U. 2003 CanLII 89602 (BC LA), [2003] 120 L.A.C. (4th) 46 (Germaine); Hendrickson Spring and United Steelworkers of America, Local 8773 2006 CanLII 93288 (ON LA), [2006], 151 L.AC. (4th) 245 (Solomatenko); OPSEU (Fabro) and Ministry of Industry, Trade & Technology) GSB 1989 -0755 et al. (Roberts) 1992; Kulpinski v. Toronto Transit Commission [2000] 0.J. No. 169 (SCJ); Becker Milk Co. and Milk & Bread Drivers, Local 647, 1996 CanLII 20358 (ON LA), [1996] 53 L.A.C. (4th) 420 (Joyce); OPSEU (Atkins/Taylor) and Ministry of Transportation, GSB 1993 -2035 et al. (Kaufman) 1996; Thermal Ceramics and U.S.W.A. 1993 CanLII 16811 (ON LA), [1993] 32 L.AC. (4th) 375 (Gray); Toronto (City) and Toronto Civic Employees Union, Local 416 [2002] CarswellOnt 5139 (Starkman); OPSEU (Richard) and Ontario Clean Water Agency, GSB 2000 -1220 (Abramsky) 2005.
4In summary, counsel argued that the case law was clear that where a grievor puts her health at issue in a complaint, either where the remedies relate to health or where a grievor has challenged a termination on the basis of health, then the employer ought to get full and complete medical disclosure. The arbitration decisions show that fairness and natural justice require that the employer get all medical information. Counsel also noted in closing that the employer agreed to the kind of order made in the Richard, supra, to restrict who has access to the medical documentation. She argued, in the alternative, if I was of the view that the request for medical information was too broad, the employer sought documentation from April 1,2008 to October 31, 2009.
Submission of the Complainant
5In response to the employer’s motion, counsel for the complainant reserved her right to respond to the motion that her own letters provided to Dr. Davies be produced. She noted that this issue had been raised for the first time on the day of the motion and she was not in a position to argue against it. There was no objection to this by the employer counsel. Thus this decision will not address the issue.
6In response to the motion for production of medical documentation, counsel for the complainant reviewed the particulars as outlined in Appendix A of the complainant’s application to the board. She noted that in addition to the complaint of wrongful dismissal, the grievor here is alleging a breach of the MOS signed February 20, 2007. It is the complainant’s position that an offer of work in the Western Regional Office made on May 30, 2008 was made in bad faith, was a breach of the MOS, and lead to the grievor going off on sick leave on June 8, 2008. Her doctor provided monthly reports to the employer while the grievor was on short term sick leave through the summer and fall of 2008.
7During the fall the complainant attended a college in North Bay at the recommendation of her psychiatrist, Dr. Davies. When the short term sick leave was about to end, the employer contacted the complainant, who at that time advised that she was going to school and needed a leave. Upon learning that the complainant had been attending school and collecting sick benefits the employer launched a CISU investigation and subsequently terminated her employment. Counsel submits that it is ironic that when the complainant sought to provide medical information to the employer before the decision was made to terminate her employment the employer was not willing to wait for the information.
8Counsel’s main argument in opposing the production as requested by the employer was that it was not arguably relevant. The request went well beyond the subject of the complainant’s mental health in seeking all her medical information for the period identified and really amounts to a fishing expedition. Counsel also argued that the medical information should not be produced until the employer has put in its case, since it has the onus of proof here. She submitted further that where medical records are sought, particularly psychiatric records, there is a higher standard applied than arguable relevance and that the order should not be made until it is clear that it is necessary. Counsel relied on the following cases in support of her submission: OPSEU and Ministry of Community Safety and Correctional Services, GSB 2005-2769 et al (Tims) 2006; Winchester District Memorial Hospital and ONA 1989 CanLII 9368 (ON LA), [1989] 8 L.A.C. (4th) 342 (Bendel); Ministry of Correctional Services and OPSEU 1994 CanLII 18662 (ON GSB), [1994] 39 L.A.C. (4th) 205 (Kirkwood); Keating and Ministry of Community and Correctional Services, PSGB 2005-2315(O’Neil).
Decision
9Having carefully considered the submissions of the parties I have decided to grant the employer’s motion for production of documents in part. I am persuaded that the clinical notes and all records for the complainant from Dr. Felicity Davies’ file, from April 1, 2008 to October 31, 2009 should be produced to the employer. If the complainant was seen by any other specialist regarding her mental health during the same period, that is, April 1, 2008 to October 31, 2009, then these documents must also be produced. If the complainant was not seen by another specialist regarding her mental health, counsel for the complainant should advise the employer forthwith. These documents do not have to be produced before the commencement of the hearing into this matter at the end of April, but should be produced one month before the start of the complainant’s defence to the employer’s case. Counsel will be in the best position to estimate the timeline here. As agreed by the employer, I hereby order that certain conditions, as imposed in Richards, supra, will apply here. Only counsel for the employer and one advisor may review the documents. Further, the documents may only be used for the purposes of the current complaint and no copies may be made of any of the documents.
10I am not persuaded that it would be appropriate to order the other documents requested by the employer, at least at this time. The complainant has put her mental health at issue in this case and has clearly indicated that her psychiatrist will testify in these proceedings as to the advice that the complainant should attend school as part of a treatment plan. Thus, the psychiatrist’s notes and records or other specialist’s notes and records pertaining to the complainant’s mental health are arguably relevant. While privacy concerns here are still valid, it is also necessary to balance the employer’s rights to natural justice and a fair hearing.
11In making this decision I have kept in mind this statement from Becker Milk, supra:
In ordering the disclosure of medical records, arbitrators must be sensitive to the fact that such records may include personal and confidential information. In exercising the required discretion, the individual’s interest in the non-disclosure of personal and confidential medical information must be balanced with the policy considerations that suggest that disclosure is useful and necessary. (p. 428)
In balancing these interests I have decided that the rest of the complainant’s medical information, at least at this point, is not useful or necessary. To order all of it to be produced would be wrong in my view. I am persuaded that the notes and records of the complainant’s general practitioner and the decoded OHIP form are over broad and not warranted. In Richards the GSB ordered a decoded OHIP form where the grievor’s recollection of doctors that he had seen over the years regarding his medical issue was not clearly complete. The only way to ascertain this information was to get the OHIP form. It was arguably relevant and clearly necessary. This is not the case before me. I am not convinced, as counsel for the employer argued that given the nature of the case, the complainant cannot be trusted to forward all relevant medical documents relating to her mental health during the identified period, so that only an OHIP form will satisfy. There is no evidence to support such a finding.
12Thus, for the reasons noted above the employer’s motion is granted in part.
Dated at Toronto this 8th day of April 2010.