IN THE MATTER OF AN ARBITRATION B e t w e e n:

TORONTO HYDRO-ELECTRIC SYSTEM LIMITED

(the "Employer”)

- and -

SOCIETY OF UNITED PROFESSIONALS

(the “Society”)

and in the matter of a policy grievance concerning the Attending Physician Statement. Russell Goodfellow – Sole Arbitrator APPEARANCES FOR THE EMPLOYER: Sonia Regenbogen, counsel Elena Kaminsky Kim Cooper Meg Bolohan APPEARANCES FOR THE SOCIETY: Kate Hughes, counsel D. Guterman, student-at-law Andre Kolompar Henry Quach

AWARD

The Society represents a bargaining unit of professional engineers. On July 11, 2017, it filed

the following policy grievance:

SOCIETY POLICY GRIEVANCE TOHY2017-0054: APS FORMS AND CONSENT STATEMENT OF GRIEVANCE Recently, Toronto Hydro's "Non-Work Related Attending Physician's Statement" (APS) has come to Society's attention. As a condition of Toronto Hydro's short term disability program, employees are required to submit a fully completed APS after six days of continuous absence due to illness and are told that failure to submit that fully completed APS, signed by a medical doctor, within the required time will result in the employee's absence being unpaid as well as any further absence being unpaid. Part 1 of the APS form requires the employee to provide very broad consent to the release of confidential medical information to Toronto Hydro Health Services (and its suppliers), including providing consent to Health Services and its suppliers to communicate directly with the employee's physician should they require further information. As well, though the form indicates the consent to provide information is for the purpose of determining functional ability, the Society is aware of a recent case (Grievance TOHY2017-0053) where the medical information provided was used for the purpose of determining eligibility (and denying it) for short term disability benefits. Part 2 of the form (to be completed by the employee's attending physician) requires the employee's physician to provide a broad range of confidential medical information, including with respect to diagnosis, medication, prognosis and treatment. Please be advised that the Society of Energy Professionals hereby grieves Toronto Hydro's use of the APS form as a violation of Article 19 and other related (sic) the collective agreement, applicable legislation, as well as being contrary to a long line of arbitral jurisprudence. More specifically, with respect to the information required in the APS, such as diagnosis, treatment plan and medication, this is confidential medical information that an employer should not be privy to at this early level of inquiry for STD. Also, as noted above, the consent form says that the requested information is being released for the purpose of determining the employee's "functional ability"; it does not say it is for the purpose of assessing the entitlement to benefits though that is how it has been used in at least one case of which the Society is aware. As you may know, arbitrators have distinguished these 2 issues between assessment for "functional ability" to return to work, and assessment for eligibility for sick leave. As well, the consent is overly broad for assessing eligibility for STD.

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RESOLUTION SOUGHT By way of a remedy the Society seeks to have the APS form significantly revised to bring it into compliance with the collective agreement, the law and arbitral jurisprudence. More specifically, the Society seeks the following remedies for Society members:

1. a declaration of the breach of the Collective Agreement and/or privacy rights;

2. an order that Toronto Hydro cease and desist from requiring the

disclosure of confidential medical information, including diagnosis, on the APS forms at early stage of sick leave;

3. an order that Toronto Hydro cease and desist from requiring blanket

consent to communicate with the employee's physician; 4. an order that APS forms which have been completed to present, and

are in the possession of Toronto Hydro, be sealed and not relied upon or referred to by Toronto Hydro Management staff such as Supervisors and Managers;

5. an order that Toronto Hydro pay specific and general damages to

members who were required to provide APS forms in breach of the Collective Agreement and privacy rights; and

6. an order that the filled APS form shall be sent directly to the Toronto

Hydro Health and Wellness staff, and not to Supervisor or Manager, since this is confidential medical information which is protected under Privacy Rights.

7. such further remedies as may be appropriate or necessary.

The policy grievance was referred to arbitration together with an individual grievance. The

individual grievance was the “recent case” referred to in paragraph two of the policy grievance.

The parties settled the individual grievance on the first day of hearing.

Between the first and second day of hearing the Employer revised the APS. The revision

eliminated the reference to “suppliers” in the terms of consent referred to in the second

paragraph of the grievance. It did not, however, address the other concerns identified by the

Society. Accordingly, the policy grievance proceeded to hearing with the revised APS taking the

place of the original APS. The APS and accompanying Functional Abilities Form (“FAF”) are

attached as an Appendix to this award.

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The following letter, which was sent to the individual grievor, is typical of what is sent to

employees enclosing the APS:

Dear [employee], Subject: Request for Attending Physician’s Statement (APS) I understand that your absence commencing on May 4, 2017 may reach and/or exceed six (6) continuous working days. As per Toronto Hydro's short term disability program, you are required to submit a fully completed APS after six (6) continuous days of absence due to illness: The APS form is enclosed with this letter. You are responsible for completing Part 1, which is your consent to release medical information to Health Services and allow communication with the Attending Physician. You are also responsible to ensure your Attending Physician completes the remainder of the form. Failure to submit the fully completed APS within this time will result in your absence being unpaid and any further absence will also be unpaid. The confidential fax number for Health Services is [Health Services fax number]. As outlined in the Compensation Program Guide, your performance pay is based on full calendar months worked if your absence is once (sic) continuous month or greater payout will be pro-rated based on full calendar months worked. Should you have any questions concerning the completion of the APS, please contact Health Services at [Health Services telephone number]. Sincerely, [employee’s supervisor]

The following is the relevant collective agreement provision:

ARTICLE 21

SICK LEAVE 21.1 Employees with a sick time balance will be required to draw from

those credits in the event of an illness or non-work related injury. 21.2 Employees who do not have a current sick bank will be advanced six

(6) sick days annually that are non-cumulative and have no cash value.

21.3 Employees with a sick time balance who run out of sick time credits

during the course of a year will be advanced one (1) sick day for

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every two (2) months remaining in the calendar year to a maximum of six (6) days.

21.4 New employees will be advanced one (1) sick day per two (2)

completed months of service to a maximum of six (6) days. 21.5 No sick days will be advanced until current remaining sick bank is

used. 21.6 Payment of 75% of basic earnings commences with supporting

medical certification as follows: on the first day of absence due to an accident, or on the fourth day of absence due to illness (you will use 3 sick day credits).

21.7 Where the Employer requires that an employee provide medical

documentation, the Employer shall bear the cost of additional required documentation beyond the initial request.

[Bold type in original representing recent amendment to collective agreement.]

The following is the relevant portion of an 11-page "Benefits Overview" document, which

summarizes the benefits available to employees under the collective agreement:

Your sick days You are eligible for six (6) sick days per year. New Hires are granted one (1) sick day per two (2) months of completed service to a maximum of six (6) days per year. Unused sick days cannot be carried over to the following year and have no cash value. Your short-term disability coverage The Short-Term Disability plan (STD) is designed and intended as an income protection plan during times of extended illness and non-work related injury. The maximum STD period is 26 weeks. You are eligible for STD after six (6) months of continuous employment. This plan is administered internally by Toronto Hydro. Salary continuance of 75% of your base salary to a maximum of 26 weeks, subject to medical evidence will be provided:

• On the first (1st) day of absence due to an accident or emergency (unplanned) hospitalization, or

• On the fourth (4th) day of absence due to an illness (after using three (3) sick day credits - if you have no sick days available, six (6) sick days will be advanced annually that are non-cumulative and have no cash value)

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• All your group benefits coverage (medical, dental, insurance, LTD) continues while you are on STD

• Your normal contributions to the OMERS pension plan will continue to be deducted from STD payments

• Upon completion of a STD, if a subsequent absence is required within

two (2) weeks of completion of the leave that is directly related or a continuation of the original claim, it will be considered the same claim. If a subsequent absence occurs after two (2) weeks from the completion of a STD claim, it will be treated as a new claim

• Coverage automatically ceases once an employee has completed the elimination period for long-term disability (LTD) or once medical evidence no longer supports the absence

Note: Employees who have grandfathered sick days may apply the sick days to continue STD payments of 100%.

[Italics in original.]

Two witnesses testified for the Employer. The Society led no evidence of its own.

The Employer’s first witness was Meg Bolohan. Ms. Bolohan is a lawyer and the Manager

of the Employer’s Labour and Employment Law Department. Ms. Bolohan testified in support of

an estoppel argument. The argument was based on the negotiations for the present collective

agreement.

The Employer’s chief negotiator was Helia Ralph. Ms. Ralph, who is now retired, was the

Employer’s long-time Director of Employee and Labour Relations.

On the second day of negotiations Ms. Bolohan was present and took notes. Among the

Society’s proposals was an increase to the number of available sick days. Another was for the

Employer to pay for any and all requested medical documentation. The notes record Ms. Ralph

as having addressed the latter proposal as follows:

Item #12: Sick Time - Doctor's Notes: First, it's our position that we can ask for medical documentation at any point. After the first day, the second day, third day and so on. That's not something we're prepared to move off of, we have that right to ask for medical documentation when we deem it necessary.

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Paying for a medical certificate is not somewhere we are willing to go, for the initial medical. We will absolutely pay for any subsequent medical, but not the initially required documentation, be it a note or an APS. That's the employee's responsibility.

Ms. Bolohan testified that the Union did not ask for the APS or inquire about its contents.

On the fifth day of negotiations Ms. Bolohan was again present but another member of

management took notes. The notes record Ms. Ralph as having begun the day by expressing

disappointment that all 25 of the Society's original proposals were still on the table, while

management had only two. The following discussion ensued:

HR: … In an interest to move our negotiations forward, I have a response to your proposal on sick leave. [HR distributes Management proposal] HR: In response to your proposal under Article 21: Sick Leave, we have a new clause [reads 21.7]. As we've been discussing, this is consistent with our longstanding practice, but for clarification and to respond to your proposal, we have this proposal for you to consider. AT: For clarification, you talk first of all about medical documentation, requiring medical documentation. And then saying, referring to additional required medical documentation beyond the initial one - is a doctor's note medical documentation? HR: Yes. AT: What would be the additional medical documentation? HR: It could be an APS. That could also be the first medical documentation required, depending on the case. If someone has broken a leg, we would require more than a certificate to determine restrictions, so the initial requirement may be a medical certificate or an APS, which is our longstanding practice. Whatever that initial requirement may be, certificate or APS, if the APS is required initially we may not get sufficient information to accommodate, so additional medical information may be required beyond the initial. AT: We understand if there's a doctor's note and it costs money, you would not pay for that for the first one. But you would pay if there was some other additional medical documentation required?

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HR: That's correct: medical certificate, note, or APS. That's, as I said, consistent with our practice and how we deal with our other employee groups. Same practice. AT: Ok

["HR" is Ms. Ralph. "AT" is Andrew Todd, the Society’s Chief Negotiator.]

Once again, Ms. Bolohan said, the Society made no request to see the APS.

On the sixth day of negotiations Ms. Bolohan was again the note-taker. Her notes include

the following:

HR: We had also given you our response to your proposal on the sick leave.... AT: It doesn't address the issue we're raising. My guess would be that the number of people in the Bargaining Unit in a given year who go to the doctor after a period of 4 days or more of an absence, and therefore require a doctor's note, would be a pretty small number. Let's say as a guess it's a third. Let's say there are 15 people. The average doctor's note is $30. It's not exactly a "break the bank" item for you. So we're saying where you require a note following an illness of more than 4 days and it requires a note for which the doctor charges - not all of them do - that you pay. This is not a high cost item; it's a low cost item. The part that you propose is even less than that. How many people end up having to pay a doctor for some kind of consultation or confirmation of treatment greater than a normal visit to the doctor? The frequency of that, and therefore the benefit of that, is pretty low. I don't know if you have an example of where an employee had to pay money other than OHIP coverage for the kind of thing you're describing. The application is minimal. It also doesn't deal with the issue that we raise, which does occur with greater frequency but is still not a significant number. I would guess it's not more than 15 times a year at $30. If we can't agree about things like this, we'll have a tough time with things that are a lot more costly and apply to a lot more people. We want to try to get this off the ground starting with things that are low cost. HR: Let me make some points on the sick leave. The numbers that I talked about earlier in response to your proposal about increasing the number of sick days, which you have since dropped, I know, those were the numbers that didn't support the need for additional sick days because the number we currently have in the CA is more than sufficient. Most employees in the society are at around two days. It's our position that we can ask for medical at any time. But the initial note - in order to receive the sick leave benefit - is at the employee's expense. Any subsequent medical we require, even if it was an APS to begin with, we need to ensure that we have the appropriate medical for a safe return to work. In any event, whether it's starting with a medical

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certificate to start with, or an APS, the initial is paid by the employee. It's no different than any other group. Regardless of what the cost is or how often - that's not the issue here. That initial is required by the employer as necessary and is paid by the employee. That's consistent with how we manage our STD plan with other groups, and very consistent in our industry. That's been our message all along. So I agree with you, Andy. We're back today, Day 6, and we're still on these small issues. Flex Time. What's the issue here? If it's working for the employees, as it is why do we need it in the CA? We'll definitely have a look at it, but why do you need it in the CA it it's working? And now we're back at the sick leave and you can't even agree to something as simple as this which is consistent with every other employee group we have, and with the industry.

Ms. Bolohan’s notes also record Mr. Todd’s response, which was no less direct in

expressing the Society’s view of the Employer's approach to bargaining. It did not, however,

address the sick leave issue, nor, Ms. Bolohan said, did the Society request the APS or inquire

about its contents. Indeed, Ms. Bolohan said, "never in the 2016 negotiations did [the Society]

ask for a copy of the APS". Ms. Bolohan added, however, "it's not really what we were

discussing – the details of the form or the form itself – we were more discussing who would

pay".

Ms. Bolohan was cross-examined. She was first asked about the Employer's Attendance

Management Policy ("AMP"). The AMP identifies a number of "Action Steps", one of which

concerns the need for follow-up meetings with employees who are experiencing attendance

difficulties:

• The employer may require additional information through medical

documentation, maintained by Toronto Hydro's Occupational Health Professional that may be utilized if accommodation is required.

Later, under the heading "Continuous Follow Up", the AMP states:

Medical Certificates: Where warranted, based on review of individual circumstances, medical certificates may be required to support any or all future absences. Upon receiving the medical certificate, the Supervisor/Manager will check the date of issue versus the absenteeism period. Some medical certificates are issued at the end of an illness. Not all medical certificates need to be accepted. Health Services may be required to assist in acquiring the proper information.

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Expenses associated with medical certification required for absences due to illness shall be the responsibility of the employee. This does not apply to Work Place Safety and Insurance Board (WSIB) related requirements. [Bold type in original]

Ms. Bolohan acknowledged that the AMP does not refer to an "APS" and that the newly

added Article 21.7 could have the effect of modifying the payment obligation set out in the

AMP.

Ms. Bolohan agreed that Ms. Ralph's comments in the first negotiating session above were

about "an APS" not "the APS” and that the Employer did not pass an APS “across the table” to

the Society. Indeed, Ms. Bolohan said she was "not aware” of the Employer ever having given

the Society a copy of the APS.

Ms. Bolohan acknowledged that the Employer made no proposal in bargaining concerning

medical documentation or an APS. She further acknowledged that in the second negotiating

session above the APS references were in respect of "accommodation", which means "returning

to work with medical restrictions". Ms. Bolohan agreed that the Society’s interest was "cost".

Society counsel directed Ms. Bolohan’s attention to the APS that was in use at the time. Like

the revised APS, it stated immediately under the heading, "For Temporary/Permanent

Accommodations". In addition, Ms. Bolohan agreed, the consent for disclosure of medical

information set out in the APS states that it is "for purposes of determining my functional

ability".

Ms. Bolohan acknowledged that the collective agreement and Benefits Overview document

do not refer to an "APS". She stated, however, that the Employer considers the APS to fall within

the reference to "medical certification" in Article 21.6.

Ms. Bolohan was asked about the operation of Article 21. She explained that an employee

with three sick leave credits would be paid 100% of wages for the first three days of illness,

followed by 75% of wages for up to 26 weeks thereafter.

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The Employer’s second witness was Kim Cooper. Ms. Cooper is an RN and an Occupational

Health Nurse. Her title is “Health and Wellness Specialist”. Ms. Cooper testified about the use of

the APS and accompanying FAF.

Ms. Cooper said that Health Services reviews the medical information to determine if there

is "support for the employee’s absence". In addition, Ms. Cooper said, the Employer is "always

looking for return to work opportunities". Ms. Cooper testified that the APS is used to determine

if the absence is "supported" and there is an entitlement to STD benefits and to assess whether

the employee can return to work in the employee’s own job or in a modified capacity. The APS

is typically sent to employees on the fourth day of absence.

Ms. Cooper was asked how medical information is stored. She testified that it is kept in

"double-locked" cabinets in a locked room in a building that requires a security pass to enter. For

electronic storage, the Employer uses the familiar "Park Lane" database. Describing the

information as "very confidential", Ms. Cooper said that only nurses, a physician, and the

administrative assistant have access to it. Management is only given a return to work date and

any restrictions or limitations.

In determining whether an absence is supported and benefits are payable, Ms. Cooper said,

the Employer requires "objective medical evidence". It needs to know that “the medical evidence

is complete and that it aligns with all of the information provided on the APS".

Ms. Cooper spoke about the Benefits Overview document referred to above. She stated that

the Employer relies on the medical evidence to adjudicate STD benefits entitlement, while

emphasizing that the Employer is also “always looking for early and safe return to work

opportunities". The "restrictions and limitations provided" help determine if the employee can be

"safely accommodated".

The Employer has been using a similar APS since 2003. A different form was in use before

that. Ms. Cooper reviewed a document that compared the key features of the form, which has

gone through several iterations, over the years.

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The consent has become more elaborate. Ms. Cooper stated that the reference to "functional

ability" means physical or cognitive abilities: what the employee can and cannot do. Ms. Cooper

noted the relationship between functional ability and return to work, which would mean no "need

to maintain STD benefits". Ms. Cooper testified that it might be necessary to communicate with

the employee's physician to clarify any medical restrictions or the possible duration of the

absence.

Ms. Cooper testified that the Employer’s Chief Physician becomes involved in "more

complex" cases with “more complicated medical diagnoses or treatment". The physician is also

involved in longer projected absences, such as three months or more. The physician’s opinion is

sought both in respect of STD benefits and return to work opportunities. The physician might

need to consult, either verbally or in writing, with the employee's physician.

Ms. Cooper reviewed the second part of the APS, which is completed by the employee's

physician.

In respect of Part 2 A (iii), Ms. Cooper was asked what "additional information" the

Employer might be seeking. She said that it could be anything that might "help us understand the

complete condition", such as whether an employee who is "suffering from depression or anxiety"

is also having to "look after an aging parent in a care-giving" role.

As for Part 2 B, “Diagnosis”, Ms. Cooper testified that the Employer needs to understand the

"main condition we are dealing with – what medical condition is being addressed". She added

that “sometimes there is just one condition but more and more there are a number, and having

two or three diagnoses helps us look at the whole situation".

Ms. Cooper testified there could be a "current" diagnosis and a "primary" diagnosis, which

are different. For example, an employee being treated for heart disease might also have an

underlying, primary, diabetic condition. Ms. Cooper testified that diagnoses are growing more

complex and "mental health” is increasingly primary.

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In adjudicating STD benefits claims, Ms. Cooper testified, the Employer looks at diagnosis

"but not in isolation". "As much information as possible" is needed "to fairly adjudicate the

situation". The Employer also "look[s] at the symptoms, the treatment and whether it would

support total disability", Ms. Cooper said.

Ms. Cooper was asked what information the Employer would need if “diagnosis” was not

permitted. After first stating that “diagnosis” was “critical”, Ms. Cooper said, “if we had to look

at something similar or by another name, we could look at ‘nature of illness’”. Ms. Cooper stated

that it would "not be the same in some cases but it would be a close second".

Ms. Cooper was asked about Part 2 B (iii), concerning “subjective symptoms”, in particular

the last line, which asks, “what is preventing the patient from returning to work”. Describing this

as "very important", Ms. Cooper said that it involves the "barrier" and "we are looking for

anything we can do to decrease the barrier". Also emphasizing that "return to work is critical”,

Ms. Cooper pointed out that the Employer has an "Early and Safe Return to Work Program". The

goal of the program is to return employees to work as early and safely as possible. Functional

abilities are reviewed for that purpose.

Part 2 C (i), dealing with “treatment”, was considered next. Describing it as "an important

part of the whole medical information", Ms. Cooper said that it is used along with “diagnosis" to

determine “what is preventing the employee from returning to work". Ms. Cooper said, "we

need to know that proper and appropriate treatment is aligned with the diagnosis so that

employees are getting better".

Knowing the "treatment plan" is also necessary, Ms. Cooper said, to ensure that it is "safe

for [the employee] to be at work". "Safety is the number one concern", Ms. Cooper emphasized.

Asked why it is not enough to know that the employee is being treated, Ms. Cooper said the

Employer needs to know that “it is safe for the employee to be at work with the particular

treatment". By way of example, Ms. Cooper referred to heart disease being treated by cannabis.

Ms. Cooper testified that the treatment plan is also relevant to adjudicating benefits

entitlement. Knowing that "appropriate treatment is aligned with the diagnosis" helps with the

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“adjudication process". Knowing only that the employee "is being treated doesn't tell us exactly

what the treatment is to support the diagnosis", Ms. Cooper explained.

The Employer also needs to know that the treatment plan is being followed, Ms. Cooper

said. Not following a prescribed plan of treatment would simply "prolong the absence", Ms.

Cooper noted. If an employee "chooses not to follow the plan and improve their health”, Ms.

Cooper said, “our adjudication would be that the absence is not supported”. Benefits would be

denied.

According to Ms. Cooper, it is important for the Employer to know that "everything is

aligned". "You can't just look at prognosis or treatment or diagnosis and make a determination".

The Employer also needs to know if there are “any restrictions – the functional abilities". "All of

the information together helps us make a very thorough evaluation of the medical provided", Ms.

Cooper stated.

Referring to Part 2 C (ii), Ms. Cooper described "prognosis" as important for the same

reasons and because management needs to know whether it is dealing with a short or long-term

situation.

Ms. Cooper testified that Part 2 C (iii), concerning possible return to work timing, is meant

to help determine "what a return to work would look like". The goal is to set up and provide an

appropriate accommodation.

Part 2 D, dealing with "restrictions", is to the same effect. Ms. Cooper again noted that the

Employer is “always looking for early and safe return to work possibilities”. The accompanying

FAF is meant to provide further "details” with "specific restrictions”. All of this is "very

important" to returning the employee to work safely, Ms. Cooper said.

Ms. Cooper explained that the “Early and Safe Return to Work Program” involves meetings

between management (usually the employee's supervisor), the employee, Health Services, and a

Society representative. Medical information is not discussed; only functional abilities are. The

employee’s supervisor prepares a return to work plan, based on the FAF, and reviews it with the

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employee. The plan can involve a gradual return to work, until the employee achieves "medical

maximum recovery", or a “permanent accommodation”.

Ms. Cooper was cross-examined.

Ms. Cooper was asked when is it that employees who are off sick are asked to provide

medical documentation. She replied, "usually when people are off for a couple of days a medical

certificate is expected”. The APS is sent on day four, in the form of a letter from the employee's

supervisor (see above). It must be completed after day six, which is the point at which it is used

to adjudicate claims.

Ms. Cooper acknowledged that the Benefits Overview document does not refer to

"permanent disability", an "APS", or even "objective medical evidence"; it only refers to

"medical evidence". Similarly, Article 21.6 refers to "medical certification".

Ms. Cooper acknowledged that the Employer does not copy the Society on the letter to

employees enclosing the APS. Like Ms. Bolohan, Ms. Cooper said she was unaware of the

Employer ever having given the Society a copy of the APS.

Comparing the APS that was in place when the grievances were filed with the revised APS,

Ms. Cooper agreed that both refer to "Temporary/Permanent Accommodations". Neither

mentions sick leave or STD benefits adjudication.

Ms. Cooper stated that the only consent obtained from the employee is on the APS. She

testified that as an RPN she is aware of the need to obtain "informed consent" and to observe

"medical confidentiality". Ms. Cooper agreed that following the Personal Health Information

Privacy Act (“PHIPA”) is a College of Nurses requirement and part of the Standards of Nursing

Practice. Describing it as "very important", Ms. Cooper acknowledged that the consent must be

knowledgeable and relate to the specific condition. Medical information cannot be collected

without it.

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Ms. Cooper also agreed that the "vast majority" of cases of time off for work for illness or

injury by Society members do not exceed six days. In the last decade, for example, such

instances would "definitely" be less than 100, possibly only "a couple per year".

Ms. Cooper agreed that Health Services is not part of the ill or injured employee’s "circle of

care". She added, however, that “we do work with the employee and the treating physician" to

"bring the employee back to work".

Ms. Cooper was asked about the information solicited on the APS. She agreed that

"Diagnosis" is important to the employee's clinical care, which, of course, the Employer does not

provide. However, she said that it is also necessary to adjudicate STD benefits entitlement.

When it was suggested to Ms. Cooper that all the Employer really needs to know for that

purpose is, for example, that the employee has had "surgery" and cannot lift more than a certain

number of pounds, not what the particular surgery was – that it was a “hysterectomy”, for

example – Ms. Cooper replied, "it depends". She said, "the condition is important", perhaps not

by itself but "as part of everything else". She stated that, "in some areas, I'd need to know more

than ‘surgery’”, for example, to understand "recovery time".

Ms. Cooper did not agree that such information was the exclusive purview of the employee's

physician and that a return to work date was all the Employer needs. She said, “we want the

information to see if we agree on the length of time the employee is to be off work for the

surgery and to see if the employee can come back sooner". Ms. Cooper pointed out that the

employee's physician might not "know what options there are for that". The return to work date

might say "three months” but that could be because the employee’s physician does not know that

“we could give work to the employee that could make it six weeks”.

Ms. Cooper also did not agree that the request on the APS for "additional complications or

conditions" is "more intrusive than diagnosis", adding that it is necessary to adjudicate STD

benefits claims. Ms. Cooper was asked, "why do you need to know that an employee has vaginal

discharge or blood in her stools to determine entitlement to STD benefits"? Ms. Cooper replied,

"it helps to determine the severity of the illness, which is an important part of the process". The

same question was asked and the same answer given in respect of the “treatment” regimen.

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In essence, Ms. Cooper said, all of the information on the APS is necessary to determine

benefits entitlement and to assess and develop early and safe return to work opportunities. The

Employer needs to know that everything is “aligned”.

Submissions

As the parties were aware, this is far from the first time that the permitted scope of employer

requests for employee medical information in the “first instance” have been dealt with at

arbitration. A great deal has already been written on the subject. It is also far from the first time

that evidence of the kind given by Ms. Cooper has been put forward in support of such requests.

As such, as part of their closing submissions, counsel were asked to provide, and did provide,

annotated versions of the APS: annotated for the cases, and passages in the cases, together with

any statutory provisions, relied on in support of or against its disputed aspects. Employer counsel

also provided a written version of her closing argument.

Society

The Society submits that the starting point for any analysis of the issues is that employee

medical information is private and confidential and any intrusions on that privacy must be

specifically negotiated by the Employer. The Society does need to negotiate restrictions.

Under this collective agreement, the Society submits, the only relevant provision is Article

21, which identifies the benefits employees are entitled to receive, the timing of that entitlement,

and what employees must provide in order to obtain them. Article 21.6 refers to "supporting

medical certification". Article 21.7 speaks of "medical documentation". Neither refers to an APS.

The Society submits that Ms. Bolohan's evidence adds nothing to the Employer’s case. It

establishes that there was no bargaining about an APS and that the Employer never gave the

Society a copy of its APS. The bargaining was exclusively about who would pay for medical

documentation.

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The Benefits Overview document also does not assist the Employer, the Society submits. It

simply repeats the collective agreement entitlements, referring to "medical evidence", while also

making no mention of an “APS”.

The Attendance Management Program takes the Employer no further, according to the

Society. Its purpose is accommodation. The Society does not dispute that additional information

might be needed for accommodation and return to work, depending on the circumstances, but not

in the “first instance”. The AMP, like the collective agreement, also does not refer to an “APS”.

It simply refers to "medical documentation" and “medical certificates”.

The Society notes that the Employer sends its APS to employees by day four of absence,

requiring that it be completed after day six. Although paragraph two of the letter refers to the

Employer's "short term disability policy", we have only the Benefits Overview document, the

Society notes, and nowhere does it say what the letter says: that the employee is "required to

submit a fully completed APS after six (6) continuous days of absence due to illness".

Society counsel undertook a detailed review of the case law concerning the disclosure of

employee medical information in the first instance, including the use of forms. Counsel referred

to the following: Ontario Nurses' Assn. v. St. Joseph's Health Centre, 76 O.R. (3d) 22 (Div Ct);

York County Hospital Corp. v. S.E.I.U., Local 204, 1992 CarswellOnt 1178; Ottawa Citizen v.

Ottawa Newspaper Guild, Local 205, 1996 CarswellOnt 5766 (Dumoulin); Brant Community

Healthcare System, [2008] O.L.A.A. No. 116 (Harris); Hamilton Health Sciences Corp. v.

Ontario Nurses' Assn. (Sick Leave Benefits Grievance), [2007] O.L.A.A. No. 733 (Surdykowski);

Society of Energy Professionals v. Ontario Power Generation (Mar Grievance), [2009]

O.L.A.A. No. 348 (Etherington); OLG Point Edward Casino v. Teamsters, Local Union 879

(Beaupre Grievance), [2011] O.L.A.A. No. 412 (Jesin); Greyhound Canada Transportation

Corp. v. Amalgamated Transit Union, Local 1415 (Medical Chart Notes Grievance), [2011]

O.L.A.A. No. 655 (Levinson); Bluewater Health v. Ontario Nurses' Assn. (Medical Leave of

Absence Policy Grievance), [2016] O.L.A.A. No. 272 (Sheehan); Toronto East General Hospital

v. Ontario Nurses' Assn. (Union Grievance), [2014] O.L.A.A. No. 414 (Devlin); Providence

Care, Mental Health Services v. Ontario Public Service Employees Union, Local 431, [2011]

O.L.A.A. No. 661 (Surdykowski); Toronto Hydro-Electric System Ltd. and Power Workers'

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Union (2012-040), 2017 CarswellOnt 13304 (Davie); Columbia Forest Products v. United

Steelworkers Local 1-2010 (Weekly Indemnity Forms Grievance), [2017] O.L.A.A. No. 314

(Gedalof); London Health Sciences Centre and ONA (Employee Medical Information), 2016

CarswellOnt 20744 (Slotnick); PIPEDA Case Summary No. 233, 2003 CarswellNat 5775;

PIPEDA Case Summary No. 257, 2003 CarswellNat 5798; PHIPA DECISION 54, HC15-74.

Drawing on that law, the Society alleges numerous flaws in the APS, all of which will be

identified and addressed below. The basic thrust of the Society’s argument, however, is that the

consent is both inadequate and excessive and that the APS demands far too much information in

the first instance.

The Society asks that I find and declare the APS to be in breach of employee privacy rights

and that I grant the same remedies as were granted in OPG (Mar), supra. It asks that I identify

the specific areas of the APS that are prohibited, that I order the Employer to cease using the

APS, and that I require the Employer to create separate forms for benefits administration

purposes and accommodation/return to work purposes.

Employer

The Employer submits that the grievance should be dismissed “first and foremost” on

estoppel grounds.

The Employer submits that the evidence establishes that an APS, in similar form, has been in

use since at least 2003. While not asserting that the Society was aware of it, or that it should be

taken to have been aware of it, the Employer describes such use or “practice” as the

“background” to Ms. Ralph’s “repeated references” in the 2016 collective agreement

negotiations to “an” APS or “the” APS. In response, the Society did not ask for a copy APS or

inquire about its contents. The Employer submits that the Society’s “silence” in this regard

amounts to a representation that the Employer’s use of the APS was acceptable. The Employer

submits that it relied on that representation to its detriment by assuming that no specific

authorization was required for the APS in the collective agreement. The Employer asks that the

19

Society be estopped from taking the contrary position prior to the expiry of the current

agreement and its next opportunity to bargain about the matter.

The Employer refers to: Brown and Beatty, Canadian Labour Arbitration, para. 2:2211;

Bowater Pulp & Paper Canada Inc. v. I.U.O.E., Local 865, [2002] O.L.A.A. No. 749

(Surdykowski); Agropur Division Natrel v Milk and Bread Drivers, Dairy Employees, Caterers,

and Allied Employees, Local 647, 2013 CanLll 57442 (ONLA) (Surdykowski); Brock University

v. BUFA (Isla), 2014 CarswellOnt 6407, 243 L.A.C. (4th) 240 (Knopf); and Viterra and GSU

(ILWU Canada, Local 1), 2014 CarswellNat 6814 (Ish).

In the alternative, if no estoppel is found, the Employer submits the grievance should be

dismissed on its merits.

The Employer notes that the APS is used for three purposes: (i) to determine whether an

absence is medically supported; (ii) to adjudicate STD benefits entitlement; and (iii) to determine

whether an early and safe return to work is possible and whether accommodation is required and

available, which also involves the FAF.

The Employer notes that after six days of absence due to illness employees must submit a

completed APS. The APS provides the basis upon which an entitlement of up to six months of

STD benefits at 75% of wages is determined. The Employer submits that the case law supports a

requirement for “objective medical evidence”. The APS is the source of that evidence.

The Employer notes that the parties “explicitly agreed to the requirement for medical

information to substantiate absence due to illness”: Articles 21.6 and 21.7. According to the

Employer, Article 21.6 gives it a “broad and unfettered right to obtain employee medical

information”. Such information is treated highly confidentially, the Employer points out, and is

not shared with management.

The Employer undertook its own review of the case law, focusing on the awards of Arbitrator

Surdykowski in Hamilton Health Sciences, supra and Canadian Bank Note Co. and IUOE, Local

772, 2012 CarswellOnt 10489, and Arbitrator Knopf in Central Care Corp. v. C.L.A.C., 2011

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CarswellOnt 1682 (Knopf), which deal with the scope of employee medical information that may

be requested “in the first instance”. The Employer submits that, “in the absence of a collective

agreement provision or legislation that provides otherwise”, an employer is entitled to the

following at first instance:

a. When the illness began or accident occurred;

b. When the employee became unable to attend work;

c. Whether the illness or injury was work related;

d. The expected return to work date;

e. Statement from a physician that states he/she has assessed the employee;

f. Statement that the employee is incapable of performing the regular duties of his/her occupation due to illness or injury for a specified period;

g. The general nature of the illness or injury;

h. That the employee is under the physician’s active and continuous care;

i. A description of the treatment supplied and the treatment plan;

j. An attestation that the employee is following the treatment plan, and;

k. The anticipated return to work date and potential restrictions.

In addition, counsel submits, “employers are entitled to request but are not entitled to

require”:

a. Information about an automobile insurer

b. A physician’s primary or secondary diagnosis or description of symptoms;

c. Particulars of the employee's medical history;

d. Results of tests or other investigations performed;

e. A prognosis other than the expected return to work date, and;

f. Any accommodation required when the employee returns to work.

Beyond that, the Employer submits, employers must "demonstrate a legitimate need for

specific information on a case-by-case basis”. Such information can be required to be produced

“to the extent specifically permitted or required by legislation or the collective agreement” or as

may be “reasonably necessary to a legitimate purpose in the circumstances”. “Additional

confidential medical information can be requested and required” when an employer “is

21

attempting to assist an employee’s return to work or planning an appropriate workplace

accommodation”. This would include, the Employer submits, “additional information regarding

an employee’s diagnosis and treatment”. The Employer refers to the following cases in support:

Canadian Bank Note Co., supra, Central Care Corp., supra (Knopf) and OLG Point Edward

Casino, supra.

With respect to employee consent, the Employer acknowledges that it cannot be “open-

ended”; “some limitations” apply. However, the Employer submits, the consent may “stipulate”

that “further communication” may be engaged in “for the purpose of obtaining additional

information with respect to the specific purpose for which the [initial] consent was given”.

Employer counsel referred to an award of Arbitrator Davie between this Employer and

another of its unions, the PWU, regarding the same APS that was originally in issue here: see

Toronto Hydro-Electric System Ltd. and Power Workers' Union 2017 CarswellOnt 13304

(Davie) (hereinafter the “PWU case”). Although the collective agreement in that case

specifically authorized the use of an APS, the Employer notes that the consent was upheld in all

but one respect, which has since been corrected. The Employer referred to an award of Arbitrator

Dissanayake in Treasury Board Secretariat and OPSEU, 2017 CarswellOnt 11994, 132 C.L.A.S.

102, which enumerates seven basic principles of consent.

Referring to the evidence of Ms. Cooper, the Employer went on to apply the principles that,

it submits, emerge from the case law in respect of all aspects of the APS. Important to the

Employer’s overall submissions, however, is the assertion that one form requested in the first

instance – the present APS (and accompanying FAF) – is permissible because it is used to both

adjudicate STD benefits entitlement and determine early and safe return to work possibilities.

In sum, the Employer submits that the grievance should be dismissed on estoppel grounds or,

in the alternative, on the merits. In the further alternative, if I were to find that “some of the

information on the APS is not permitted at first instance”, the Employer asks that it only be

required to revise its cover letter to employees, telling them that certain information is “not

required at the first instance, rather is only required when a return to work is engaged”. In the

further and final alternative, if an entirely new APS is thought to be required, the Employer asks

22

that it be afforded an opportunity to construct it, in the light of any “guiding principles” I might

outline, while I remain seized of implementation.

Society Reply

Much of the Society’s reply concerned the Employer’s legal analysis of its APS, including

the list of principles identified above. Suffice it to say that the Society does not accept all of the

principles as accurate or as applicable in any event.

As for the Employer’s estoppel argument, the Society submits that it is both unsupported by

the evidence and that estoppel cannot apply to statutory rights. As to the first, the Society

submits there is no evidence of a representation because there is no evidence the Society was

aware of the APS prior to bargaining and the discussions at bargaining concerned payment for

medical information, not the form or content of such information. The Society submits that it

was under no obligation to request any APS to which the Employer might have been referring

and that not pursuing Ms. Ralph’s APS references does not amount to a representation that it had

no objections to whatever APS might have been referring. The Society submits that there is also

no evidence of any detrimental reliance. Finally, the Society submits that estoppel or estoppel-

type arguments, based on what it describes as better evidence, were tried but failed in Hamilton

Health Sciences Corp., supra, and Ontario Power Generation, supra.

Decision

Estoppel

I am unable to find a sufficient basis for estoppel.

At least when employed as a “shield”, estoppel requires a representation by a party with a

collective agreement right that the right will not be asserted, which representation is then relied

upon, and which representation is intended by the party making it to be able to be relied upon, by

the other party, with the other party suffering a detriment if the representation were allowed to be

23

withdrawn. The representation can be express or implied, including in the form of silence, but it

must be clear and unequivocal; it cannot be uncertain, ambiguous or incomplete.

By definition, the possibility of estoppel only arises if the APS is flawed; that is, if there is

merit to the Union’s grievance. However, insofar as the estoppel argument was advanced as the

primary basis for dismissal, I will address it first. The following analysis assumes, therefore, but

does not yet decide, that the APS and/or its uses are flawed in one or more ways.

The Employer does not assert that the Society either knew or should be taken to have known

of the APS prior to the 2016 collective agreement negotiations. While pointing out that similar

versions of the APS had been in use since 2003, the Employer did not suggest that the Society

was aware of that fact or should be taken to have been aware of it. Prior knowledge of the APS

by the Society was neither asserted nor proved by the Employer. The necessary representation

was not said to reside in any knowing failure by the Society to object to the Employer’s past use

of the APS over a period of collective agreement renewals but, rather, in the exchange between

Ms. Ralph and Mr. Todd at the bargaining table.

At bargaining the Society advanced a proposal for the Employer to pay for any and all

medical documentation. In addressing that proposal, Ms. Ralph, on behalf of the Employer, made

several references to “an APS”, “the APS”, or, simply “APS”, amongst other things. Mr. Todd,

on behalf of the Society, did not take up those references. He did not say, for example, “Hold on

a minute. What’s that you say – an APS? What are you talking about? We’re not aware of any

‘APS’, nor do we think you’re entitled to use one. We want to see it.”

The Employer submits that this “silence” by Mr. Todd amounts to a representation that its

use of the APS was acceptable. The Employer submits that it relied on that representation to its

detriment by not seeking clearer or more specific authorization in the collective agreement and

an estoppel should apply.

With respect, I disagree. Assuming, but certainly without deciding, that estoppel can apply to

statutory rights, which underlie much of the legal analysis that follows, the evidence falls well

short of establishing any such representation.

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At stake in this case are significant collective agreement and statutory rights: the right of the

Employer to administer its STD benefits plan and, it submits, its early and safe return to work

program, and the right of employees to access STD benefits in the context of statutorily

supported medical privacy. In St. Joseph's Health Centre, supra, the Divisional Court noted that

privacy of medical records is “assured by the regulations applicable to health care professionals”

and that the doctor-patient relationship is “among the most private in Canadian Society”.

The evidence concerning the 2016 collective agreement negotiations does not establish that

the Society communicated, still less that it intended to communicate, that whatever “APS” the

Employer might have been referring to, and to whatever specific uses it might or might not be

putting it or wish to put it, was either acceptable to the Society or would not be challenged by the

Society. No sophisticated labour relations professional, who, in my experience, certainly

includes Ms. Ralph, would ever have come to such a conclusion. The Employer’s references

were too few and too non-specific to conjure up any reasonable belief that in failing to address

them Mr. Todd was communicating that the Society was either agreeable to or had no concerns

about any APS to which Ms. Ralph might have been referring. And, of course, neither Ms. Ralph

nor anyone else came forward to say they actually drew any such conclusion. It was left to

counsel to assert it in final argument. In my view the proposition does not stand up.

Put more particularly in the spirit of the estoppel case law, the Society, in my view, can no

more be said to have lain in the weeds waiting to ambush the Employer about its APS post-

bargaining than the Employer can be so said to have done so by never having given the Society a

copy of the APS, never having described its contents, and never having told the Society about its

specific uses. Both parties were entitled to rest, and appear to have chosen to rest, entirely on

whatever legal rights they possess.

The Employer’s estoppel argument is dismissed.

25

Uses and Content of the APS

Some cases and basic observations

The law in relation to almost all of what follows has been written, and well written, by other

arbitrators. Two or three decisions stand out and bear quoting at length.

The first is that of Arbitrator Surdykowski in Hamilton Health Sciences Corp., supra. This

decision represents the first and most comprehensive treatment in this province of the issues

concerning employer requests for employee medical information in the “first instance”. The

following paragraphs are important:

27. The several layers of legitimate employer interests suggest that there is more than one stage to the process that is engaged when an employee seeks the benefit of the sick leave provisions in a collective agreement. It also suggests that the employer will generally be entitled to less information at the initial stage than at a subsequent stage. The employer's desire for more information, or its genuine concern for an employee's well-being or desire to assist the employee, do not trump the employee's privacy rights. Nor do questions of expediency or efficiency. In the absence of a collective agreement provisions or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because she is ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies that an employee is away from and unable to work for a specified period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise, it will also be sufficient to qualify the employee for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee's privacy. In order to obtain additional confidential medical information, the employer must demonstrate a legitimate need for specific information on an individual case-by-case basis. That is, for sick benefits purposes an employer has no prima facie right to an employee's general medical history, a diagnosis, a treatment plan, or a prognosis other than the expected date that the employee will be able to return to work with or without restrictions. ... 29. A diagnosis or statement of the nature of an illness is undoubtedly confidential medical information. There is a broad and consistent arbitral and judicial consensus that in the absence of contractual provision binding on the employee an employer has no right to a diagnosis. I agree. The British Columbia jurisprudence draws a distinction between a "diagnosis" and a statement of the "nature of the illness". Is there a meaningful distinction between "diagnosis" and "nature of the illness" such that an employer is entitled to the latter in the first instance?

26

30. Santerre testified that the "primary diagnosis and systems" requirement reveals the nature of the illness. That is undoubtedly so, but the reverse is not necessarily the case. Taher's Cyclopedeic Medical Dictionary defines "diagnosis" as "the term denoting the name of the disease or syndrome a person has or is believed to have" based on medical tests or an examination of symptoms. That is, a diagnosis is a formal statement that specifically identifies a disease or injury based upon an application of medical scientific methods. It is a medical conclusion that is the product of a process of identifying or determining the nature and cause of an illness or injury from an examination and evaluation of the patient. There are many kinds of "symptoms" (e.g. objective, subjective, cardinal and constitutional), but the term generally refers to any perceptible change in the body or its functions which indicates disease or injury. "Nature of illness" is not a medical term. Having an "illness" or "injury" is the state of being sick or injured, as the case may be. In this context "nature" refers to the kind, class or essential qualities of a disease or injury. Accordingly, "nature of the illness" (or injury) suggests a general statement of a person's illness or injury in plain language without any technical medical details, including diagnosis or symptoms. Although revealing the nature of an illness may suggest the diagnosis, it will not necessarily do so. "Nature of illness" and "diagnosis" are not congruent terms. For example, a statement that a person has a cardiac or abdominal condition or that she has undergone surgery in that respect reveals the essence of the situation without revealing a diagnosis. Once again, what information the employer (or its agent) is entitled to in that respect beyond that described in paragraphs 24 and 27, above, is a matter of contract and legislation. ... 32. But in the absence of a statutory or collective agreement requirement, a diagnosis or description of symptoms or treatment goes beyond the certification of illness or incapacity that is legitimately required in the first instance. It is only where the employer has a statutory or collective agreement right to more information, or where the employer has reasonable cause to suspect the genuineness, accuracy or quality of the information provided to substantiate an absence that it is entitled to additional information. For example, if the employer has an objective reason to doubt that the doctor who signed a medical certificate actually saw or made any professional evaluation of the employee or that the doctor was qualified to provide the assessment in the certificate, or suspects that the employee had gone "doctor shopping", or has information that casts doubt on the bona fides of the alleged illness or injury that the employer is entitled to seek additional information that is specific to and reasonably necessary to address its concerns (see, for example, York County Hospital Corp. v. S.E.I.U., Local 204 (1992), 25 L.A.C. (4th) 189 (Ont. Arb.) (Fisher, Chair) at page 193). But these are issues that can arise in individual cases, and is not the more general first instance issue before me in these policy grievances.

33. The issue in this case concerns the extent of the confidential medical information that the employer can require an employee to provide in the first instance. This subsumes the consent issue because the employer cannot require the employee to consent to a release of more confidential personal medical information than it is entitled to for sick leave justification or benefits

27

purposes. The employer can always ask an employee if she is willing to volunteer more information than the employer is actually entitled to, but an employer cannot coerce an employee into “consenting" to provide broader disclosure, and is not entitled to take disciplinary or other steps against, or deny sick benefits to, an employee who declines to provide more medical information than the employer is entitled to. An employer cannot require an employee to consent to a release of more confidential medical information than is permitted or required by statute or the collective agreement, and that is demonstrably necessary for the particular purpose. 34. Further, the intensely personal nature of confidential medical information, the individual, societal and institutional interests in preserving the confidentiality of such information, and the protections that have been legislated to protect its privacy and use, suggest a conservative approach. Accordingly, collective agreement provisions that speak to the information than an employee must provide to the employer in order to satisfy the employee's obligation to justify an absence or to obtain STD benefits in that respect should be strictly construed. 35. In the first instance for STD benefits purposes, therefore, in the absence of statutory or collective agreement authorization an employer cannot require an employee to consent to the release of more than certification that she is absent and unable to work because she is ill or injured, the general nature of the illness or injury, that the employee has and is following a treatment plan (but not the plan itself), the expected return to work date and what work the employee can or cannot do. The consent must be both focused on the particular purpose and limited to the particular medical professional. A consent that must be provided for the purpose of STD benefits should not include return to work accommodation considerations other than whether there are likely to be any restrictions on the anticipated return to work date. A "basket" consent that purports to authorize anyone who the employer may ask to release confidential medical information is not appropriate. Nor is it appropriate to require an employee to sign a forward-looking consent that may exclude her from the confidential medical information loop. The overwhelming weight of the arbitral jurisprudence takes a dim view of consents that purport to give an employer prospective permission, particularly where the consent purports to permit the employer to unilaterally (with or without notice to the employee) initiate direct contact with a doctor or other custodian of confidential medical information. Every contact should be through or at the very least with the knowledge and consent of the employee, a separate consent should be required for every contact, and every consent should be limited to the completion of the appropriate form or the specific information required, as appropriate. 36. In the absence of collective agreement authorization a "one size fits all" medical certificate of disability form for STD benefits purposes will necessarily be limited in scope in the first instance. Such a consent should identify the medical professional or custodian of medical information, specify the period it relates to, and although it can ask, the employer cannot require an employee to consent to a release of the employee's general medical history, a primary or secondary diagnosis, a treatment plan (as distinct from the fact that

28

there is one and that it is being followed), or any medical prognosis other than an expected return to work date. 37. What an employer can require of an employee should not be mixed into the same form or same section of the form as what it can ask an employee to volunteer. If a single form is used, it must clearly distinguish between what information is required (i.e. what the employer or its agent is entitled to) and what the employee is being asked to volunteer (i.e. what information the employer or its agent would like to have if the employee is willing to allow the employer to access).

Many of the specific points made above will be applied below. I note here, however, that in a

subsequent case Arbitrator Surdykowski modified his view as to the need for a fresh consent

each and every time additional information is sought from an employee’s physician: see

Canadian Bank Note Co, supra.

A second, no less thorough, treatment of the issues is found in the award of Arbitrator

Etherington in Ontario Power Generation (Mar Grievance), supra. After quoting from another

helpful award – that of Arbitrator Harris in Brant Community Healthcare System, supra –

Arbitrator Etherington wrote:

98. I fully endorse Arbitrator Harris' correction of the reasoning in paragraph 22 of the West Costal Energy Inc. decision, which he quotes in the above excerpt. A careful reading of the decisions referred to in that paragraph, and the Ottawa Citizen decision in particular, supports the statement made by Arbitrator Harris that arbitrators have generally held that the employer has no right to the medical information unless the collective agreement grants a right and the employee consents to its release. I would simply add that in the absence of collective agreement language clearly requiring the provision of the personal medical information, there are several decision that have applied the KVP Co. Ltd. requirements to determine whether a unilateral employer policy that requires the provision of the personal medical information can be justified as a reasonable necessary company rule to protect important employer business interests. I will return to that issue before when addressing the employer's argument based on KVP Co. Ltd. 99. In my view the collective agreement language in this case does not support the employer's right to request specific personal medical information such as diagnosis. While the relevant articles of the agreement and the Sick Leave Plan clearly contemplate the provision of a medical note or a MAR form to support entitlement to sick leave benefits, they do not prescribe the provision of any specific personal medical information. As such they cannot be said to contemplate a requirement to provide more than what could be seen as reasonably necessary to be provided by all employees at the first stage of proof of sick leave entitlement, under this agreement after five days of absence.

29

Another way of putting this is that in the absence of specific statements of the information to be provided in the MAR or a medical note, the language of the agreement and the Sick Leave Plan must be interpreted as only requiring the provision of the medical information that is necessary for the administration of the Sick Leave Plan at this initial stage of the process, after the five days of absence. In my view this is implicit in the language in the agreement in article 42 and 42A which contemplates the requirement for the employee to provide a medical note or a MAR form without indicating the content of such documents. This implies that the employee may be required to provide sufficient medical information to establish, at the five day point, that their absence from work is due to illness or injury that prevents them from reporting to work. 100. On the issue of what type of medical information maybe (sic) viewed as reasonably necessary for the administration of the sick leave plan and determining entitlement, both the evidence provided at the hearing and the existing arbitral jurisprudence appear to demonstrate that a statement of diagnosis by all employees who are absent for 5 days is not necessary to the administration of the Sick Leave Plan … Further, when Ms Stevenson gave the reasons why it was necessary to have diagnosis information, she referred to several uses including assisting in accommodating the worker, ensuring a safe and speedy return to work for both the employee and co-workers, and helping OHNs to provide better service as health professionals. But she did not refer to diagnosis as being necessary to be able to determine if the employee was legitimately ill and eligible for sick leave benefits as a reason for requiring diagnosis on the 5 day MAR form, and she also admitted that the personal treating physician would be in the best position to confirm inability to report to work due to illness or injury. 101. Although it could no doubt prove useful to the employer to have diagnostic information at the 5 day point for a variety of other purposes apart from administering sick leave benefits, and I have no doubt that it provides much greater administrative convenience and efficiency for the employer to have as much personal medical information as possible as early as possible for the purposes of administering several other employer obligations (i.e. its duty to accommodate, gathering information on the effectiveness or need to Wellness programs etc.), the employer did not demonstrate that this information was reasonably necessary for the administration of sick leave benefits, and in particular determining entitlement to sick leave benefits for all claimants after 5 days of absence. In this respect I note that the union did not deny that additional personal medical information may be necessary in individual cases, particularly in cases of extended absences and in cases where there are reasonable grounds for suspicion of abuse of sick leave. But the arbitral cases are very consistent in holding that enhancement of administrative convenience for other purposes related to dealing with absenteeism management, a safe return to work, or human rights obligations, are not sufficient to demonstrate reasonable necessity for the collection of diagnosis information at the first state of demonstrating sick leave entitlement (see for example, Hamilton Health Sciences, supra and Ottawa Citizen, supra). 102. This conclusion also dictates rejection of the employer's argument that the requirements of the current MAR can be justified under the principles of KVP Co. Ltd., supra. Among the criteria for a valid unilateral company rule

30

established in that case are the requirements that the rule must not be inconsistent with the collective agreement and must not be unreasonable. Given what I have found about the extent of medical information that may be required under the collective agreement after five days of absence under the sick leave provisions, it can be argued that the requirements of the current MAR in the requirement of the diagnosis is not consistent with the collective agreement. However, even if that is not the case, the requirement for diagnosis and a very broad consent can not be viewed as reasonable. The standard for reasonableness under the KVP Co. Ltd. criteria has generally been vested on the basis of whether the rule or policy is reasonably necessary to serve the legitimate business purpose that lies behind the rule's adoption. As indicated above, the employer has failed to demonstrate that the requirement for diagnosis in the current MAR form is reasonably necessary at the five day point for the administration of the sick leave plan. 103. In my view the same analysis just completed for the diagnosis requirement should also apply to the requirement to provide information concerning "underlying or other relevant medical conditions" which is found within the diagnosis box on the current MAR. Just as this was included in the same box in the agreed upon MAR and therefore subject to the unconditional proviso that it could be withheld at the employee's request on that form, the requirement that the provision of diagnosis should be made subject to the discretion of the employee in the current MAR should extend to information concerning underlying or other relevant medical conditions. This type of information is very similar in type and relationship to privacy concerns as diagnosis and I have seen nothing in the evidence before me to demonstrate that it reasonably necessary to establishing sick leave entitlement for a five day absence. …

105. Similarly, the requirement that the MAR form report whether the employee has been referred to another physician, and if so, when and to whom, would appear to also go beyond what is necessary for the reasonable administration of the sick leave plan at the initial 5 day threshold. Such information also presents a significant risk of revealing a diagnosis by virtue of the physician named in the referral. However, I note that this provision was present in a slightly altered form ion the agreed upon MAR. 106. In my view the same analysis as that applied to the diagnosis requirement can be applied to the requirement for the very broad and extended consent contained in the current MAR form. The agreed upon MAR (Tab 2, page 15) contains a very brief and narrow consent, restricted to a consent to their physician to release to OPG the information on the form and the release of restrictions to OPG line management. The consent on the current form goes far beyond what is reasonably necessary to the administration of the sick leave plan at the point of justifying 5 days of absence by providing an open ended consent to an ongoing exchange of personal health information between the employee's healthcare professional and OPG Health Services for a wide variety of purposes, including several that have nothing to do with the administration of the Sick Leave Plan. I note in this respect that despite the fact the consent on the current form appears to cover an ongoing exchange of information between personal physicians and OPG Health Services, Ms Stevenson testified that in her

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experience the OPG officials would ask for a new consent if they felt the need to have some kind of follow up contact with the physician subsequent to receiving the MAR. This, when combined with the absence of evidence of problems arising under the agreed upon MAR, would again seem to demonstrate that there is no reasonable necessity for the broad, open-ended and multi-purpose consent found on the current MAR. The consent on the agreed upon MAR will suffice for the purposes of the reasonable administration of the sick leave plan in terms of dealing with establishing entitlement to sick leave after 5 days of absence. … 108. I hasten to add here that there is nothing in the arguments of the union or this decision, that addresses or attempts to define the limits of the employer's ability to require more personal health information and broader consent to access to such information in cases where there are reasonable grounds to suspect abuse of sick leave or reasonable grounds to have concerns about the safety of returning an individual employee to work following a significant absence or repeated absences. Consistent with the findings of arbitrators in the plethora of cases submitted by the union, my findings herein are limited to the issue of what information the employer can require from all sick leave claimants seeking to establish entitlement to sick leave benefits at the threshold of a 5 day absence. 109. Similarly this decision does not deal with the medical information that may be required in order to accommodate the return to work of an employee who is unable to perform their regular duties do (sic) to a disability within the meaning of human rights legislation. In cases where an employee seeks an accommodation under human rights legislation the employee has a duty to cooperate with the employer and the union in seeking a reasonable accommodation of her disability and, depending on the circumstances, this may require personal medical information beyond that required to justify entitlement to sick leave benefits for a five day absence. But the employer cannot rely on the fact that it may have accommodation obligations under human rights legislation in individual cases to demonstrate the reasonable necessity of requiring diagnosis or a broad blanket consent in all cases of claims for sick leave benefits for 5 day absences (See Hamilton Health Sciences, Tab 1), supra and Ottawa Citizen (Tab 5), supra). The employer urged that I should find support for the provision of diagnosis and other medical information in the current MAR on the basis of the Honda Canada Inc. (SCC), supra, and Coast Mountain Bus Company (BCHRT), supra, decisions concerning the accommodation obligations of employers and statements therein concerning the need for employers to acquire relevant medical information in order to comply with their accommodation duties … The fact that an employer may, in fulfilling its accommodation obligations in cases like Honda Canada Inc., be justified in requiring more extended personal medical information and perhaps even require the employee to attend a meeting with a company appointed doctor due to a record of extreme absenteeism, does not demonstrate the necessity of requiring all sick leave claimants to provide extensive confidential medical information at the first level of establishing medical proof of entitlement to sick leave benefits. The logic of that argument, if pursued to its fullest extent, would justify allowing employers access to complete personal medical records as a condition of employment to enhance the administrative convenience of efficiency with

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which employers meet their various employment statute obligations and would render the recognition and protection of individual privacy interests nugatory. 110. Therefore, I have found that the current MAR is inconsistent with the proper interpretation of the collective agreement provisions concerning sick leave and well established arbitral principles concerning the balancing of employee privacy interests and legitimate employer business interests …

A final decision of more localized import is the PWU case, supra, which involved this

Employer’s use of the same APS in respect of its much larger inside and outside bargaining

units. The focus of the case was on the terms of consent and the request for “diagnosis”.

Outstripping, in terms of possible effect, the estoppel argument here, in the PWU case the

Employer relied on evidence of bargaining history to argue that the parties had agreed on the use

of the APS through an amendment to the sick leave article. Previously the article had called only

for a “medical certificate” to be provided after three days of illness. In the most recent round of

bargaining the parties added the following: “After ten (10) continuous days of absence due to

illness the Employee must provide the Health Centre with a fully completed Attending

Physician’s Statement that consents to release medical information to the Health Centre and

allows communication with the Attending Physician”. Based on extrinsic evidence, Arbitrator

Davie concluded this was a reference to the APS the Employer had been using, which had been

appended to an earlier iteration of its proposed amendment.

Arbitrator Davie next addressed an argument by the union that it could not, legally, have

agreed to the use of the APS, given its disputed elements. After concluding that the union had the

authority to bargain an APS, provided the result could not be said to be “for an unlawful

purpose, or a purpose that was inconsistent with or contrary to privacy legislation such as

PHIPA”, Arbitrator Davie wrote:

124. With respect to the issue as to whether the information required to be disclosed on the APS form (including diagnosis) or the consent required to be signed, is unlawful and contrary to PHIPA, I have determined that the APS form and its consent (without reference to "and its suppliers") required after ten (10) continuous days of absence due to illness does not contravene that privacy legislation. I have been persuaded by the Employer's submissions that both the stage at which the APS is required to be completed, and the purpose for which the APS is required, distinguish this case from those relied upon by the Union.

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125. This is not a case in which the information in the APS form, or the consent to communicate with the Attending Physician, is required at the outset of an absence due to illness or after one (1), three (3) or five (5) days of absence. Neither is the APS and its consent to communicate required for the purpose of establishing entitlement to sick leave benefits. 126. The arbitral jurisprudence relied upon by both parties recognizes "that there is a continuum along which an employee's obligation to provide detailed medical information increases with the length of absence." (See Brant Community Healthcare System v. O.N.A., [2008] O.L.A.A. No. 116 (Ont. Arb.) (Harris) at paragraph 24). There is a similar, interrelated continuum along which an employee's obligation to provide medical information increases depending on the purpose for which it is sought. Disclosure of medical information at the initial stage of an absence from work for the purpose of establishing entitlement to sick leave benefits is quite different than disclosure of medical information after a two (2) week absence for the purpose of determining functional ability and fitness to return to work or accommodation. 127. These two factors, the stage at which the APS is required, and the purpose for which it is to be used, are relevant to any determination as to whether the Employer's use of the APS form is reasonable and strikes of proper balance between the employee's privacy interests and the Employer's business interest, and whether it is consistent with privacy legislation such as PHIPA. 128. The Union argues that the Employer's use of the APS is prohibited by privacy legislation because the APS requires the disclosure of a diagnosis in every case of an absence of ten (10) consecutive days even though that medical information may not always be necessary. The Union does not argue that PHIPA prohibits an Employer from obtaining diagnostic information. It concedes that there may be circumstances where the request to provide a diagnosis is appropriate. It submits however that this matter must be determined on an individual basis. 129. PHIPA does not specifically deal with the disclosure of diagnostic medical information and does not specifically address the circumstances under which information with respect to a diagnosis may be collected, used or disclosed. Instead, section 30(2) of PHIPA directs the healthcare provider and custodian of health information such as Ms. Cooper to collect, use or disclose no more personal health information "than is reasonably necessary to meet the purpose of the collection or use." I accept that what is "reasonably necessary" is dependent on the stage at which the request for disclosure is made and the purpose for the disclosure. 130. In this case the APS is not required until the circumstances are well along the continuum referred to by arbitrator Harris in Brant Community Healthcare System v. O.N.A., supra. Articles 24.14 and 24.15 of the collective agreement provide for a progression in which employees need not provide any medical information at the first or initial stages of an absence due to illness. At the second stage of the absence, which is defined by article 24.14 as after three (3) full working days, the employee is required to disclose only

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limited information (prognosis, anticipated date of return and any restrictions). It is only when employees have been continuously absent for a much longer period of time that the APS form (and the disclosure of a diagnosis) is required. Then it is required not to establish entitlement to sick leave benefits or to confirm the continuation of such benefits. Instead the purpose for requesting the information is clearly stated on the form itself to be "for the purpose of determining any functional abilities (e.g. fitness for work, appropriate work accommodation, and/or work re-entry initiatives)." 131. In the absence of any evidence that any employee has ever been cut-off or denied continued sick leave benefits because they failed to provide a fully completed APS form I am unable to accept the Union's submission that the purpose of the APS form is to deal with entitlement to sick pay merely because article 24.15 is found in a part of the collective agreement entitled "sick pay credit" which commences with the sentence "accumulated sick time will be granted under the following conditions". The evidence before me indicates that the purpose of the APS is not to determine if the employee is legitimately ill and entitled to sick pay. On the APS form itself the purpose is otherwise articulated. 132. The Union submits that the APS form serves different purposes. That is true in the sense that the form is used not only when employees have been off for more than ten (10) consecutive days but also when employees who have not been absent request accommodation. However, there is no evidence be