Numéro de sentence arbitrale 08-005

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Award Date:	2008-06-16
Arbitre:	Shime, O. Voir les prix par Shime, O.
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Procedural Issues, Evidence, Evidence, Evidence
Plaignant:	Tracey Rudback
Comparutions:	B. Symes and others, pour l'Association M. Hines and others, pour l'employeur
Longueur:	20 pp
Référence conventions collective
Référence législative	The Mental Health Act, R.S.O. 1990, c.M.7 s. 35

Sommaire

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Procedural Issues   Production of documents - Board grievance concerning recovery of overpayment from former police officer - Board seeking production of file created by Association official who represented employee before workers’ insurance tribunal and appeals tribunal - Board also seeking production of materials held by psychiatric facility and records held by academic institutions relating to employee’s attendance at institutions - Association file privileged - Psychiatric records to be disclosed to Board counsel only - Academic records to be produced - Interim award.

Evidence   Privilege - Board seeking production of personal health information relating to former police officer - Prohibition against disclosure in Mental Health Act - Section 35(9) of MHA not applying to pre-hearing request for production of personal health information - Arbitrator has jurisdiction to order production of health information subject to relevance - Integrity of psychiatric evaluations in doubt due to scope of information made available to physicians - Psychiatric records relevant - Records to be disclosed to Board counsel only - Interim award.

Evidence   Privilege - Board seeking production of Association file prepared for purpose of representing police officer before WSIB and WSIAT - Association no longer a party - Board proceeding only against former employee - File privileged - No voluntary or implied intention on the part of employee to waive privilege - Request for production of Association file denied - Interim award.

Evidence   Relevance - Board grievance concerning recovery of overpayment from former police officer - Employee’s educational activities, at a time when she declined modified duties, relevant - Request for production of academic records allowed - Interim award.

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Réalités

Tracey Rudback had been employed by the Toronto Police Service as a police officer. A Workers Safety and Insurance Board (WSIB) claims adjudicator determined that she was entitled to loss of earnings benefits. Ms. Rudback’s benefits were terminated after she refused modified duties offered by the Board. She then took courses at York University between January and April 2002, and began Teachers’ College in the fall of 2002. While Ms. Rudback was attending Teachers’ College she appealed the termination of her WSIB benefits. The WSIB made arrangements for her to be assessed at the Centre for Addiction and Mental Health (CAMH). As a result of a report forwarded by CAMH her benefits were restored retroactively. However, in September 2003 the claims adjudicator learned that Ms. Rudback had been attending Teachers’ College. The claims adjudicator requested a further report from CAMH. After receiving this report he inactivated her claim, creating a recoverable overpayment. Ms. Rudback’s appeal to the Workers Safety and Insurance Appeals Tribunal (WSIAT) was denied. Thereafter the Board filed a grievance against Ms. Rudback to recover the payment of monies which, as a Schedule 2 employer, it had been required to make. The Board brought a preliminary motion for pre-hearing production of documents, specifically: 1) the WSIB/WSIAT file created by the Association official who represented Ms. Rudback before the WSIB and the WSIAT; 2) documents held by CAMH pertaining to whether Ms. Rudback disclosed her academic pursuits to CAMH; and 3) production of documents from academic institutions which Ms. Rudback attended. Counsel for the Board acknowledged that the Association file was privileged. The production of the file thus turned on whether the privilege had been waived, due to a statement made by Association counsel. At the hearing Association counsel indicated that the Association had no knowledge of Ms. Rudback’s activities which were in issue. The Board then indicated that it was proceeding against Ms. Rudback only. Opposing counsel, who had appeared for the Association and for Ms. Rudback, continued to represent Ms. Rudback. The production of CAMH documents turned on whether there was a statutory impediment to disclosure -that is, whether s. 35(9) of the Mental Health Act (MHA) prohibited disclosure - and whether the records were relevant. Section 35(9) prohibited disclosure of patient information in a court proceeding or a proceeding before “any body” except where the court or, in the case of another body, the Divisional Court, determined after a closed hearing that disclosure “is essential in the interests of justice” (s. 35(9)(c). However, s. 35(5) permitted disclosure of patient information where required pursuant to a summons in a “court of competent jurisdiction or under any Act”. The production of Ms. Rudback’s school records turned on their relevance.

Argument

Counsel for the Board argued that any privilege which attached to the Association file had been waived as a result of the statement by counsel for the Association. Counsel argued that s. 35(5) of the MHA required disclosure and there was no requirement to go to Divisional Court for a production order. Counsel for Ms. Rudback argued that the Board had to apply to Divisional Court for production of the psychiatric records, since the arbitration proceeding was not a proceeding before a court. Counsel for Ms. Rudback and counsel for CAMH were of the view that it was up to the Divisional Court, not a board of arbitration, to balance the competing interests of patient privacy and the interests of justice. With respect to Ms. Rudback’s school records, counsel for Ms. Rudback asserted that the WSIAT decision was sufficient and the school records were unnecessary.

# de sentence arbirale

Communications between union representatives and employees were generally regarded as privileged. Although the privilege could be waived, in this case there was no evidence that Ms. Rudback had in fact waived her privilege. The statement made by counsel was made on behalf of the Association, which was no longer a party. The Arbitrator accordingly denied the request for production of the Association representative’s file. The Arbitrator did not have jurisdiction to consider whether disclosure of the personal health information was “essential in the interests of justice”; that determination belonged to the Divisional Court. Moreover, the Board would have to obtain a prior order from the Divisional Court if the Board sought to examine or cross-examine a witness about the information during the arbitration proceeding. Section 35 appeared to contain an internal contradiction, with s. 35(5) permitting disclosure of patient information, while s. 35(9) prohibited disclosure. Nevertheless, the contradiction might be more apparent than real. Amendments to the MHA resulted in legislation which was now more “permissive” in tenor, permitting disclosure in specified circumstances (p. 15). In addition, there was some case law in support of the Board’s argument that the prohibition in s. 35(9) applied only to disclosure in court, and not to pre-trial inspection. Reading the two sections together, the Arbitrator determined that s. 35(9) did not apply to pre-hearing matters, and that he had jurisdiction to order pre-hearing production of personal health information, subject to relevance. The psychiatric evaluations had a direct bearing on Ms. Rudback’s receipt of benefits. Therefore what she told CAMH officials/physicians about her ability to work and her activities was relevant, particularly since she had declined modified duties. The reports suggested that she was permanently disabled from police work, which provided the justification for her refusal of modified duties. The WSIAT doubted whether she had told CAMH physicians about her attendance at Teachers’ College. In all the circumstances, the basis for the physicians’ conclusions and recommendations was in doubt. The psychiatric records were relevant, and should be disclosed to counsel for the Board only. As for the school records, there was no agreement at this stage that the WSIAT decision should be treated as determinative for purposes of the arbitration. Furthermore, Ms. Rudback’s educational pursuits at a time when she declined modified work were relevant, and the records should be disclosed.

Autorités cité

· Blank v. Canada (Minister of Justice) [2006] 22 S.C.R. 319 · S.K. Processors Ltd. v. Campbell Ave. Hiring Producers Ltd. [1983] B.C.S. No. 1499 (B.C.S.C.); [1983] W.W.R. 72 · T.T.C. v. A.T.U. Local 113 [2004], O.L.A.A. No. 578 (Tacon) · R. v. Coon (1992), 74 C.C.C. (3rd) 146 (Gen. Div.) · Everingham v. Ontario (1992) 7 O.R. (3d) 291, 88 D.C.R. (4th) 464 (Gen. Div.) · R. v. LePage [1994] O.J. No. 2126, 23 C.R.R. (2d) 81 (Gen. Div.) · Ahmed v. Stefaniu et al. (2005), 72 O.R. (3d) 590 ** This award has been selected for publication in Labour Arbitration Cases.

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