When are medical files producible in advance of an arbitration hearing?
Arbitrator Luborsky considered this in Dufferin Concrete v Teamsters Local Union Local 230, 2015 CanLII 68945 (ON LA). Counsel for the employer made the following request:
We are writing to request production of the Grievor’s complete medical file from Dr. [name] for the period from January 1, 2014 to and including July 1, 2015.
The requested material is necessary for our client’s preparation of its case. Following our review of that material, we will advise whether we require you to produce Dr. [name] for the purpose of answering questions which may be raised in the file material.
At the hearing, the employer clarified that it was only seeking production of “arguably relevant” documents in the medical file.
As put by the arbitrator the issue was whether:
.... the Employer is entitled to production of appropriate portions of the Grievor’s medical file in advance of the hearing of the Union’s grievance, and if so, the scope of such entitlement.
The grievance arose when the “grievor was not immediately returned to work” when certain medical was provided.
The employer argued that it was necessary to review the medical file in order to determine whether it would be necessary to cross-examine the doctor and to prepare its case. The union opposed the production request on the basis, in part, that more recent arbitration awards gave “more weight to privacy interests of employees in considering demands for employee medical information and have properly become more circumspect about ordering production of such information.”
The question was whether the records were “absolutely necessary”.
The arbitrator reviewed the case law and set out a number of principles applicable to these cases and requests:
There is arbitral consensus that an employee’s medical information is prima facie confidential absent an express provision in a contract of employment or a statutory entitlement to the contrary. See Arbitrator Surdykowski’s discussion at paras. 20 – 21 in Hamilton Health Sciences, supra, and his comment at para. 49 that the “modern approach…emphasizes the employee right to keep confidential medical information private except where it is absolutely necessary to disclose it”. However, that case arose in the context of the general quality of medical information that the employer (through its insurance carrier) could insist upon from an employee in order to grant benefits under a collective agreement as opposed to a specific situation of a questioned entitlement of an employee to the benefit. In that latter regard the arbitrator noted at para. 32: “It is only where the employer has a statutory or collective agreement right to more information, or where an 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”.
The cases also confirm that requests that amount to a “fishing expedition” “in the sense of being used “to discover whether (a party) has a case to be pursued or a defence to be mounted” will be declined. In other words, the documents requested must be arguably relevant to some issue in dispute.
Some information in medical records will, of course, be sensitive. But that does not, on its own, mean that production will be denied. Arbitrator Knopf in West Park Hospital, noted that production of such medical information may be appropriate “where the following conditions are satisfied”:
First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board must be satisfied that disclosure will not cause undue prejudice....
Furthermore, “[T]he production of medical information generally and a direction to a grievor to submit to a medical examination, should only be made where it is clear that the fact of the grievor’s health is being put in issue by the union, or, where the employer needs the information sought to prove its case.” (see Oliver Paipoonage (Municipality)  O.L.A.A. No. 282.
The considerations were summarized in Becker Milk Co.  42 C.L.A.S. 354and are set out in detail at paragraph 26 of the Dufferin Concrete v Teamsters Local Union Local 230 case.
Arbitrator Luborsky put the matter as follows:
Thus the authorities indicate that production of inherently private medical information should only be ordered if “arguably relevant” to the matters directly placed in issue by the circumstances and claims of the grievance. There must be demonstration of a clear nexus of the specific documentation requested to the factual matters in dispute that is real as opposed to notional or potential, with minimal intrusion into the employee’s medical affairs, so to properly reflect the appropriate balancing of important interests where the private information of an employee is involved. An employer’s request for the production of personal medical documentation must also be sufficiently particularized and not unduly prejudicial to the employee, failing which a request of this nature should be denied.
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... once the Grievor and/or Union has placed medical notes before the Employer (and ultimately the arbitrator), the Union has opened the door to the proper admission of all of the documentation that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor’s medical file arguably related thereto.
In the circumstances, the arbitrator ordered production of all “arguably relevant” documentation in the doctor’s medical file and directed the grievor to authorize this production. However, the arbitrator read “arguably relevant” narrowly and limited the production order to:
.... those clinical notes, records of examinations, tests, descriptions by the Grievor, and the like, forming the basis of Dr. [name’s] conclusions and/or recommendations in the six medical notes that were voluntarily filed with the Employer on October 8, November 10, December 18, 2014, January 19, February 27 and June 1, 2015, only.
The arbitrator also made an order regarding the use to which the documents could be put and the safeguards that should surround the production order:
I also order that its dissemination be restricted to the Employer’s counsel and its key advisors having carriage of the grievance on behalf of the Employer, with the further dissemination of those relevant parts of the documentation on a “need to know basis” to support potential responding evidence by the Employer, including the possibility of its referral for expert assessment and testimony, all of which is conditional on the deemed undertaking of all recipients of the medical information that the documentation will be kept confidential and only used for purposes of the present grievance proceedings, at the conclusion of which all such documentation in the Employer’s possession or control shall be returned to the Grievor or destroyed.
The case is the most recent word on pre-hearing production of medical records at arbitration and is yet another example of situations in which arbitrators seek to balance competing interests (the employer’s ability to prepare its case and the grievor’s privacy interest).