llness and Absenteeism.com - March 2012 Newsletter

In this edition you will find...

Feature Article - Privacy Principles Considered Following Jones v. Tsige

  • Does the recently recognized privacy tort of intrusion upon seclusion preclude an employer’s request for confidential medical information that it requires for a legitimate purpose?
  • What is the arbitral law regarding medical information normally required for accommodation purposes?
  • Are the Ontario Human Rights Commission policies merely entitled to arbitral deference, or are they enforceable as though they had been legislated?
  • Is a flawed accommodation process sufficient to constitute a breach of the employer’s duty to accommodate? •
  • What impact does the Ontario Evidence Act have on the introduction of medical evidence in grievance arbitration proceedings?

The Tort of Intrusion Upon Seclusion

The Ontario Court of Appeal, in Jones v. Tsige, recognized a limited common law right to privacy. The decision, delivered in January, 2012, held that the defendant’s invasion of the plaintiff’s privacy must be intentional, the defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification, and the defendant’s actions must be such that they would cause a reasonable person to regard the invasion as highly offensive, causing distress, humiliation or anguish.

Complex Services Inc., has now held that the court’s decision in Jones v. Tsige did not alter an employer’s entitlement “to request and receive an employee’s confidential medical or other information to the extent necessary to answer legitimate employment related concerns, or to fulfill its obligations under the collective agreement or legislation, including the human rights or health and safety legislation …

[Nothing] in Jones v. Tsige alters [an employer’s] right to manage its workplace(s), or to obtain confidential or other medical information as required or permitted by legislation or the collective agreement, or which it reasonably requires for a legitimate purpose … [While an] employee can refuse to disclose her confidential medical or other information, … if she does she must accept the consequences of exercising that right of refusal. Refusing to allow access to necessary confidential medical information may justify the employer’s refusal to allow the employee to continue or return to work, or stymie the accommodation process, result in the loss of disability benefits, or even lead to the loss of employment.

Medical Information Normally Required for Accommodation Purposes

In Complex Services Inc., arbitrator Surdykowski summarized the arbitral law regarding medical information that is normally required for accommodation purposes:

The cases demonstrate that the following otherwise confidential medical information will generally be required for accommodation purposes:

  1. The nature of the illness and how it manifests as a disability (which may include diagnosis, particularly, in cases of mental illness).
  2. Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for same).
  3. The restrictions or limitations that flow from the disability (i.e. a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative duties). 
  4. The basis for the medical conclusions (i.e. nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect).
  5. The treatment, including medication (and possible side effects) which may impact on the employee’s ability to perform her job, or interact with management, other employees, or “customers”.

In the context of the employer’s right to obtain particulars of the disability, the arbitrator stated:

I don’t know how an employment accommodation can even begin much less properly proceed unless the employer has some information of the nature of the disability. That is particularly true in cases of mental illness. There are many kinds of mental illness. Further, a particular mental illness may manifest differently in different individuals, and may require differential treatments, which may include medication which may have significant side effects. Some mental illnesses, particularly those with psychotic features or symptoms, may raise legitimate workplace health and safety concerns for the disabled individual, other employees, or customers or clients …

The decision reviews the principles regarding disclosure of confidential medical information and affirms that “more information is generally required and a concomitantly greater intrusion on an employee’s privacy is therefore necessary when accommodation is the issue than when a short-term absence or sick leave benefits are in issue.”

The arbitrator commented that the employee’s view of her rights coloured the entire process:

I am satisfied that the employee … wrongly believes that she knows her rights. She clearly does not, and as a result, the employee has taken a rigid and unrealistic view that she has an absolute right to the accommodation she has identified without full appropriate medical disclosure (which at the accommodation stage may include diagnosis and treatment).

Status of the Ontario Human Rights Commissions Policies

Arbitrator Surdykowski took issue with the applicability of the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate; specifically that portion that listed one of the employee’s obligations as being to “advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is). (emphasis added [by arbitrator]). He commented that the Policy “has been cited with deference by courts and arbitrators … There is no doubt it is entitled to deference, but the policy is just that. It is not legislation, and like any policy it is not binding or conclusive either generally or in a particular case. Every case must be determined by applying the law (i.e. the Code and any binding court decisions or other authorities) to the facts of the particular case.”

The arbitrator also took issue with that portion of the Commission’s Guidelines that dealt with an independent medical examination:

The employer is entitled to seek confirmation or additional information from an appropriate medical health professional to obtain further information if there is a reasonable and bona fide basis for doing so. The Human Rights Commission’s Policy states that no one can be forced to undergo an Independent Medical Examination (“IME”). Although technically correct, it is, with respect, clearly wrong as a practical matter. Although an IME is a resource of last resort, there are cases in which one is necessary and appropriate. An employee who exercises her right to refuse to the incontestably intrusive IME when one is objectively justified may find herself unable to continue or return to work.

The Impact of a Flawed Accommodation Process

The decision also considers whether a flawed accommodation process is sufficient to constitute a breach of the employer’s duty to accommodate. It concludes that:

Although a flawed process is more likely to lead to a flawed result, it will not necessarily do so. The purpose of the process is to facilitate an employee’s substantive rights and the employer’s substantive obligations under the Code. Neither the procedural nor the substantive components of the duty to accommodate are ‘one size fits all.’ That is, what is necessary in terms of both process and substance depends on the circumstances. If accommodation to the point of undue hardship is demonstrably impossible the employer’s procedural failings will not constitute a breach of the Code.

The Ontario Evidence Act

The union had grieved that if the grievor’s position had not been upheld, an oral hearing should be held and the grievor, the union representatives, and if necessary, her medical specialists could be called as witnesses. The arbitrator stated that the union’s submission seemed to be suggesting a “how am I doing so far” approach.

In rejecting the union’s submission, the arbitrator referred to section 52 of the Ontario Evidence Act, stating that in the case of an arbitration, the Act “provides non-mandatory but nevertheless useful guidelines with respect to the introduction of medical evidence in grievance arbitration proceedings.” He noted that

Section 52(4) suggest[s] that a party should not be permitted to call a medical health professional to give oral evidence unless it has first provided a complete medical report in that respect to the other party, and section 52(5) suggests that calling a medical health professional to testify is to be avoided except where the evidence could not as effectively [be] provided in a medical report from that medical health professional.

In this case, the union had failed to produce sufficient evidence of the expert witnesses or reports that they would call at the hearing. The union’s grievance was dismissed. In doing so, the arbitrator found that the employer was entitled to an independent review of the employee’s medical documentation by a specialist designated by the arbitrator. He ordered that the employee remain off work until the contemplated accommodation process had been completed.


Recent Decisions of Interest

  1. Damages in the amount of $20,000 for pain and mental distress were awarded to an employee who was harassed by reason of her disabilities.Although the employer had accommodated the employee’s disabilities for many years, the appointment of a new school principal resulted in a considerable degree of animus being directed toward the employee. She was subjected to a number of unproven allegations, with the employer’s Wellness Officer suggesting that the employee should “just retire.” Although the employee had been accommodated, she was found to have been “the subject of harassment by reason of her disabilities …” A claim for punitive damages was rejected.The arbitrator commented that an employer-imposed gag order set-forth in the employer’s letter of suspension was either beyond the authority of the employer or alternatively, amounted to an abuse of any such authority. Ottawa-Carleton District School Board (2012), 216 L.A.C. (4th) 333 (Weatherill)
  2. Damages in excess of $45,000 (after reduction for contingencies) were awarded where the employee, who was ultimately found to be entitled to receive workers’ compensation benefits for her injury, had that determination delayed, and suffered consequent loss, by reason of the employer’s negligence.The employer challenged the employee’s claim with the Saskatchewan Worker’s Compensation Board on the basis that her bilateral carpal tunnel syndrome was not work related. The claim was ultimately allowed after having been twice denied. The union then filed a grievance alleging that the employer had misled the Board regarding the employee’s claim and, as a result, she experienced acute financial stress, severe emotional harm, lost opportunities and additional expenses.The arbitrator concluded that while bad faith had not been established, the employer had, among other errors, misstated the employee’s workload and, despite having been advised of this error after the first Board refusal, failed to check its facts and correct the record.

    The arbitrator awarded $35,000 for a housing and renovation grant that the employee had been unable to access because she was without income, moving expenses and loss of damage deposits that were occasioned by her inability to pay rent and her subsequent evictions ($3000), a portion of her cell phone expenses in the amount of $1,114.41, a portion of the employee’s NSF charges, $500 for utility hook-up and deposit expenses, $5000. for lost contract income relating to the additional work that may have been performed with this or another employer, and hotel expenses ($250). Damages of $15,000 for mental distress were also awarded. All of the foregoing amounts were reduced by a contingency factor of 25%. Canada Post Corp. (2012), 217 L.A.C. (4th) 181 (Peltz). Note that this decision awards damages flowing from the “main award” (see (2010), 197 L.A.C. (4th) 180 (Peltz)).

  3. Documents created after the date that litigation was anticipated are not automatically protected from disclosure by reason of litigation privilege.It was accepted that “to meet the test for non-disclosure on the grounds of litigation privilege, the documents must fulfil two requirements: they must have been created at a time where litigation was pending or reasonably anticipated; and they must have been created for the dominant purpose of that litigation.” The issue here was the employer’s contention that all documents created after the date of anticipated litigation were automatically protected from disclosure by litigation privilege. While the arbitrator acknowledged that there was some support for that approach, he found that “in the context of labour arbitration, a party claiming litigation privilege for a document created after litigation is anticipated must still establish that the document’s “dominant purpose” was the litigation.” He commented that “placing a blanket protection over interview notes and statements made during the ensuing litigation would insulate from production documents that are normally disclosed in termination cases … Furthermore, it would undermine the firmly established trend toward greater pre-hearing production in labour arbitration … [which] include[s] the narrowing of issues, facilitation of settlement and the avoidance of delays when documents are requested and produced for the first time during the hearing.” Peel District School Board (2012), 216 L.A.C. (4th) 352 (Slotnick)
  4. Privilege protecting the production of student records pursuant to s 266(2) of the Education Act (Ontario) must be read in light of section 51 of that province’s Municipal Freedom of Information and Protection of Privacy Act. Production was ordered of student documents subject to the imposition of conditions intended to protect the privacy of the affected students. Ottawa Carlton District School Board (2012), 216 L.A.C. (4th) 31 (Baxter)
  5. An employee whose disability prevented her from ever returning to work was awarded severance pay under provincial legislation despite the employer’s refusal to take active steps to terminate her employment.The arbitrator accepted that while the doctrine of frustration had no application to a collective agreement, sections 56(1)(a) and 63(1)(a) of the Employment Standards Act (Ontario) should be read to imply the concept of “active employment”. On that basis, the notion of termination of employment as a pre-condition for payment was expanded by inferring an active component, so that the words “unable to continue employing” were interpreted to read “unable to continue actively employing.” Chelsea Park Retirement Community (2012), 216 L.A.C. (4th) 69 (Rayner)
  6. An employer’s application to dismiss a grievance because the union allegedly provided a false particular in response to an employer request was in itself dismissed on the basis that the particular was not a falsehood calculated to deliberately mislead the employer.The arbitrator also accepted that counsel can cross-examine a witness on a matter that need not be proven independently provided that there was a good faith basis for putting the question(s) to the witness. The case provides a useful guide to the scope of cross-examination. Rio Tinto Alcan Primary Metal North America (2012), 217 L.A.C. (4th) 131 (Steeves)
  7. An employee who was terminated for absenteeism, arising from an arrest due to his breach of an outstanding court order, was subsequently re-instated, with the parties left to work out any remedial issues arising from the termination. The arbitrator concluded that the employer’s denial of a leave of absence, “was not a reasonable exercise of the employer’s discretion given the consequence of termination.” ATCO Structures & Logistics Ltd. (2012), 217 L.A.C. (4th) 152 (Sims)
  8. An arbitrator upheld an unpaid suspension (for abuse of sick leave) where the employee had submitted an illness claim for the same period for which her holiday request had been denied.The employee’s medical note was cursory, and she refused her employer’s offer to be examined by an independent physician to verify her claim of illness. The arbitrator stated that the question was not the type of information that the employer was entitled to require but rather whether the employer was entitled to discipline the employee for abuse of sick leave. Neither the employee nor her doctor testified, and the arbitrator found that employee’s assertions in correspondence with her employer “were not made under oath or subject to cross-examination, such that they [were] not entitled to be given any weight as a rebuttal to the circumstantial evidence presented by the Employer …” Halifax Herald (2012), 217 L.A.C. (4th) 222 (Kydd)
  9. An arbitrator rejected a probationary employee’s complaint that she had been treated adversely because of the grievor’s disability (epilepsy).The grievor had disclosed her disability but advised that she did not require accommodation. She acknowledged on cross-examination that neither her epilepsy nor her medication had “any thing to do” with the majority of her performance issues. The arbitrator further found that it was not possible to accommodate the employee to permit her to perform crisis hospital calls, which calls were an essential and integral duty of her crisis worker responsibilities.This case, which was released contemporaneously with the arbitrator’s decision in Complex Services Inc., serves as a useful reminder that the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, while entitled to deference, “is not legislation, and like any policy, it is not binding or conclusive either generally or in a particular case. Every case must be determined by applying the law (i.e. the Code and any binding court decisions or other authorities).”This case also concludes that the Meiorin and Grismer decisions of the Supreme Court of Canada cannot be considered as authority for the “general proposition that the onus is on an employer to establish in every case that it has met separate procedural and substantive duties to accommodate an employee with a disability to the point of undue hardship.” Canadian Mental Health Assn. (2012), 217 L.A.C. (4th) 250 (Surdykowski)