IN THE MATTER OF AN ARBITRATION  
B E T W E E N  
UNILEVER CANADA INC.  
And  
(“the employer”)  
UNITED FOOD AND COMMERCIAL WORKERS UNION,  
LOCALS 174 AND 633  
(“the union”)  
Medical Forms Grievance  
Grievance No. R617-1643  
SOLE ARBITRATOR - Colin Johnston  
FOR THE EMPLOYER:  
Brett Christen, Counsel  
Stephen Choo, Co-Counsel  
Olajide Osuntubo, Manager, Unilever  
FOR THE UNION:  
Mary Hurley, Counsel  
Matt Davenport, Union Representative  
Mario Tardelli, Union Representative  
Paul Sheppard, Chief Steward  
Hearing conducted in person on October 1, 2019 and January 30, 2020 and by way of video  
conference on March 30, April 14 and 15, October 1, 2 and 20, 2021  
AWARD  
BACKGROUND  
1. The employer operates a food manufacturing facility in the Town of Simcoe that  
produces the popular ice cream brand, Good Humour. The plant employs approximately  
245 full-time permanent and 65 seasonal employees. Seasonal employees work during  
the peak season (February 1 to August 31) but may be called upon to work during the  
off-season as replacements for the permanent workforce. The collective agreement  
provides sick pay for permanent full-time employees for the fourth and fifth day of illness  
and weekly indemnity benefits for a total of twenty-six weeks of sick benefits. Seasonal  
employees are not entitled to sick pay or weekly indemnity benefits.  
2. The employer uses a third-party administrator to manage its benefit plans, including  
weekly indemnity benefits, self-insured by the company. Since as early as 1995, the  
weekly indemnity benefits were administered by Manulife. Sometime in late 2017, the  
employer switched plan administrators to Morneau Sheppel (“Morneau”).  
3. The union filed a policy grievance in September 2017, which challenges the medical  
forms that Morneau uses to assess entitlement to weekly indemnity benefits and to  
substantiate absences for seasonal employees.  
4. Although there are several aspects to this grievance, the main thrust of the dispute  
involves the information collected on the medical forms. The grievance also raises  
issues with other documents included in the package of material sent to employees  
along with the medical forms. One such document is Morneau's standalone consent  
form, which permits the release of the medical file to the employer if a dispute arises  
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over entitlement to benefits. Finally, the grievance challenges aspects of the employer’s  
Attendance Policy.  
5. The issues raised in this case are very much in line with the medical forms cases that  
begin with Arbitrator Surdykowski’s decision in Hamilton Health Science infra. The union  
relies on the principles set out in those cases for the proposition that the employer and  
its agent, Morneau is, restricted in the type of medical information it can compel from an  
employee in the first instance. It alleges that the disputed medical forms used by  
Morneau request far more information than is reasonably necessary.  
6. The employer, for its part, submits that the parties negotiated language in the collective  
agreement, which gives the company broad discretion to request medical information.  
The benefits booklet is incorporated into the collective agreement and mandates that the  
employee’s doctor completes the Attending Physician Form. The parties are free to  
negotiate what medical proof is necessary under the collective agreement; therefore, the  
language takes precedence over the privacy principles recognized in the case law. The  
employer questions why the union objects to Morneau’s medical forms when it did not  
oppose similar forms used by Manulife and the other previous plan administrators. The  
employer does not raise an estoppel argument but relies on this practice to support its  
interpretation of collective agreement.  
7. In the alternative, if I consider the privacy principles set out in the case law, the employer  
submits that the forms comply with those principles. The employer cautions me that the  
case law on medical privacy is inconsistent from one arbitration decision to the next.  
The case law is also flawed in that it misapplies the Personal Health and Information  
Protection Act (“PHIPA”) that has no application to employers or plan administrators.  
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THE FACTS  
8. The key evidence, in this case, is the medical forms and other documents which are at  
the heart of this dispute which include the following documents,  
a. Attending Physician Form  
b. Mental Health Attending Physician Form  
c. Medical Information Form Mental Health  
d. Letter to the Attending Physician  
e. Letter to the Employee/ “What to do next” pamphlet  
f. Attendance Policy  
9. I heard evidence from two witnesses, Sandi Trinder and Matt Davenport. Ms. Trinder is  
the former Head of People Experience at Unilever’s Simcoe plant and was employed  
with the company for forty-one years, thirty of which were in the human resources  
department, before her retirement in 2020. Her role over the years included the  
administration of sick leave benefits in coordination with Morneau, Manulife, and the  
earlier plan administrators. She was responsible for attendance management in the  
plant and helped draft the employer’s Attendance Policy. She was also involved in  
labour relations and conducted grievance meetings with the union.  
10. Ms. Trinder explained that employees are not entitled to sick pay for the first three days  
of absence unless hospitalized or their absence results from a workplace accident.  
Permanent full-time employees are entitled to sick pay for the fourth and fifth day of  
illness, paid directly by the employer. Both sick pay and weekly indemnity benefits are  
paid at 2/3 of an employee’s regular pay rate. Employees must provide a doctor’s note  
supporting the fourth and fifth day of illness. The doctor’s notes are submitted directly to  
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human resources; the company will reimburse the cost of the note if the employee  
provides proof of payment.  
11. On the sixth day of illness, the employee is referred to Morneau, who administers the  
weekly indemnity portion of sick benefits. Morneau will contact the employee to conduct  
an intake interview and send out a package of material, including the Attending  
Physician Form for the employee’s doctor to complete. The package includes the  
standalone consent form, and letters to the employee and physician. If Morneau  
determines that an employee is off work due to mental illness during the intake interview,  
it will send out a separate mental health form for the employee to bring to their doctor.  
12. Because the employer operates as a food manufacturer, it is subject to several  
regulatory requirements. Ms. Trinder explained that the regulations enforced by the  
Canadian Food Inspection Agency require employees to provide medical clearance  
confirming they are free of communicable disease. The employer does not use the  
medical forms for this purpose as a doctor’s note will suffice. The employer will  
reimburse the cost of the doctor’s note if the employee provides proof of payment. The  
employer has never reimbursed employees for the cost of medical forms submitted in  
support of weekly indemnity benefits.  
13. Ms. Trinder identified three separate medical forms used by Manulife since in 1995,  
similar to Morneau’s Attending Physician Form. They collect the same information,  
including diagnosis, details of treatment plans, and a list of medical restrictions. She  
testified that the union never challenged the use of these forms until it filed this  
grievance in 2017.  
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14. She also referred to the benefits booklet, a document produced by Manulife dated  
September 2010. The employer explained that when Morneau began administering  
benefits, the company provided it with a copy of the Manulife booklet and asked that it  
administer the same benefits level. Morneau has not produced its own updated benefits  
booklet.  
15. The parties agree that the booklet is incorporated into the collective agreement.  
However, the union submits that the company did not share a copy of the booklet until  
after the hearing commenced.  
16. The parties entered a copy of the employer’s Attendance Policy which was introduced in  
2016. Ms. Trinder assisted in drafting the policy and its subsequent revisions. The  
union was not involved in this process, but was given a copy of the policy. Copies were  
also made available to all employees and were posted on the employer information  
board.  
17. Before 2018, the medical forms were used exclusively for weekly indemnity benefits.  
Sometime in late 2017, Morneau began sending the forms to seasonal employees for  
completion. Seasonal employees do not qualify for sick benefits under the collective  
agreement.  
18. In addition to working the peak season (February 1 to August 31), I heard evidence that  
seasonal employees can also work during the off-season to cover for sick leave, long-  
term disability, vacation, and other approved leaves among the permanent staff. Ms.  
Trinder explained absenteeism was a problem with some seasonal staff who would book  
sick throughout the off-season. The employer began using Morneau to validate these  
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absences. She explained that seasonal employees are not required to fill out a medical  
form for every absence.  
19. She further clarified that the company does not use the medical forms to confirm an  
employee’s fitness to return to work and that a simple doctor’s note would suffice for that  
purpose. Moreover, the company does not use medical forms for accommodation  
purposes. Ms. Trinder understood that Morneau had a separate form to address  
accommodation issues.  
It is worth noting that the attending physician’s statement  
includes a section that asks the doctor to list the employee’s restrictions.  
20. The collective agreement contemplates that the company offers weekly indemnity  
benefits through an insured plan. The employer, however, has always self-insured this  
benefit as long as Ms. Trinder could recall.  
21. Ms. Trinder conceded that the company did not send the union copies of the different  
medical forms that Manulife used or the forms used by the previous plan administrators.  
The forms were provided to its members whenever they filed claims for weekly indemnity  
benefits.  
22. The union called Matt Davenport as its witness. Mr. Davenport is a union representative  
with Local 175 and was the servicing representative for members at Good Humour  
between 2013 and 2020. As a union representative, he was involved in collective  
bargaining and attended final step grievance meetings.  
23. He testified that the employer’s Attendance Policy first came to his attention in 2016. He  
recalled reviewing the policy and having some concerns with its wording but explained  
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that it was the union’s practice not to file grievances unless and until the policy  
negatively affected one of its members. The usual practice was to send notice to the  
employer advising that the union reserved its right to challenge the policy in the future.  
On August 29, 2016, he emailed the employer putting them on notice that the union was  
reserving its rights to challenge the policy.  
24. As to the medical forms in dispute, Mr. Davenport testified that he had never seen the  
forms used by Morneau or Manulife until after the grievance was filed. The union was  
not involved in adjudicating weekly indemnity benefits and would only get involved if a  
member filed a grievance. The union was not privy to the information in an employee’s  
medical file unless it needed the information for an arbitration hearing. It did not always  
get a copy of the medical file as the parties often settled the grievances before  
arbitration.  
25. He explained that the dispute in this case first arose when the employer began sending  
the medical forms to seasonal employees to complete. As seasonal employees are not  
entitled to weekly indemnity benefits, the union felt it was unreasonable to require them  
to fill out a detailed medical form to support an unpaid absence. The grievance,  
however, was filed on behalf of all members challenging the use of the detailed medical  
forms.  
26. Mr. Davenport was familiar with the employer’s concerns about seasonal employees  
booking off sick during the off-season but felt that this was best dealt with on a case-by-  
case basis and not through the use of a comprehensive medical form sent to all  
seasonal employees.  
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Evidentiary Ruling  
27. At the close of the union’s evidence, the employer sought to call Sandy Trinder back to  
the stand to respond to Mr. Davenport’s claim that he did not know about the contents of  
the medical forms or the practices of the previous plan administrators.  
28. The union objected to the employer calling Ms. Trinder back to the stand, arguing that it  
was not proper reply evidence. It submitted that the employer could have called this  
evidence in chief but failed to do so. The employer should have also put this evidence to  
Mr. Davenport during his cross-examination. To permit the employer to introduce this  
evidence would be both unfair and prejudicial to the union.  
29. I permitted the employer to call the evidence with the option for the union to call  
evidence in sur-reply, if necessary. I came to this conclusion based on the proper order  
of proceedings. In the ordinary course, the union would have led its evidence first, as it  
has the onus to prove a violation of the collective agreement. The employer volunteered  
to go first with its evidence to avoid a dispute over this issue. At that time, I advised the  
parties that I would provide the employer an ample opportunity to call reply evidence.  
30. I agree with the union that the employer could have led this evidence in chief. It should  
not have assumed that Mr. Davenport would simply concede the employer’s past  
practice. The reply evidence, in my opinion, would not prejudice the union as it had the  
opportunity to respond in sur-reply. I appreciate that this may not be the most efficient  
way to call evidence, but it would be unfair to the employer to deny them the opportunity  
to state their case fully. The employer should not be disadvantaged for volunteering to  
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go first with its evidence, particularly when I said at the outset that I would provide them  
with an ample opportunity to reply.  
31. The employer recalled Ms. Trinder and reviewed several arbitration awards that were  
litigated between the parties over the years. The employer submits that these cases  
demonstrate that the union was aware of how weekly indemnity claims were adjudicated  
and the use of the disputed forms. Some decisions challenge the Attendance Policy,  
which begs why the union did not litigate this issue in the past.  
32. The union objected to introducing these prior awards on the basis that there was no  
proper foundation for the evidence. It also challenged the relevance of the previous  
decisions to the dispute in this case.  
33. Over the union’s objection, I allowed the witness to review the awards. There is, in my  
view, nothing improper in putting copies of previous arbitration awards between the  
parties in front of a witness if it relates to the issues in dispute. As it was unclear what  
relevance the cases had, I reserved what weight the awards would carry, if any. Many of  
these awards pre-date Mr. Davenport’s tenure as a servicing representative for the unit.  
Ms. Trinder identified the union stewards who were present at these hearings.  
34. The employer also put into evidence redacted medical forms completed by individuals  
who Ms. Trinder identified as union stewards with Local 175. Ms. Trinder conceded that  
some of these individuals were not union stewards when the forms were completed.  
35. The union did not call any evidence in sur-reply.  
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PARTIES’ SUBMISSIONS  
36. The parties made detailed submissions on the multiple issues in dispute in this case,  
including a line-by-line review of the medical forms and other contested documents.  
What follows is a non-exhaustive summary of the parties’ arguments on the major points  
in dispute follows. I have also incorporated some of the arguments in the analysis  
section.  
UNION’S POSITION  
37. The union submits that this grievance raises important issues regarding its member’s  
medical privacy. These privacy rights are enshrined in the arbitral case law reflected in  
the line of cases that begins with Arbitrator Surdykowski’s seminal award in Hamilton  
Health Sciences infra. The case law seeks to balance an employers legitimate business  
interests with an employee’s right to medical privacy.  
38. The test applied in these arbitration awards is objective reasonableness, that an  
employee must provide sufficient objective medical evidence to satisfy a reasonable  
employer of proof of illness. This posits that the employer will take the least intrusive  
approach in requesting the necessary medical information.  
Past Practice  
39. As to the past practice, the union maintains that it was not privy to the forms used by the  
previous plan administrators, and it only became aware of the contents of these forms  
after it filed the grievance. The medical forms are sent directly to its members to bring to  
11  
their physician for completion. The union had no role in this process and would only get  
involved if a grievance was filed.  
40. If the employer is relying on past practice to interpret the collective agreement, it must  
show that the union was aware of this practice. There is no evidence that the union had  
knowledge or acquiesced in this practice. The employer cannot impute knowledge to  
the union when it is not privy to the information collected on the forms. The fact that  
union stewards were provided copies of the forms is not evidence that the union  
acquiesced in the practice.  
41. Moreover, there is no practice of using the forms with seasonal employees. Morneau  
was the first to use the forms in this way. The same is true for the standalone consent  
form which Morneau introduced. There is no evidence that the prior plan administrators  
used a similar standalone consent form.  
42. As to the medical forms themselves, the union submits there was no consistent format to  
the earlier forms. The contents of the forms were all over the map and varied from one  
plan administrator to the next. Some of the earlier forms were, in fact, compliant with the  
case law; for example, the 1999 medical form requested the “nature of illness” and not a  
diagnosis, which is an approach endorsed by most arbitrators.  
43. In the alternative, the union submits that even if it was aware of the content of the  
medical forms, it could not negotiate away the privacy rights of its members. The right to  
medical privacy is an individual right conferred by statute (PHIPA), and the parties  
cannot bargain away a right vested in the individual employee. Accordingly, even if the  
12  
company could prove that the union acquiesced in the practice, it is not relevant to the  
outcome in this case.  
Collective Agreement Language  
44. The union submits that the language in Article 26.01, which requires an employee to  
provide proof of his illness satisfactory to the Companyrefers to payment for the fourth  
and fifth day of illness and does not apply to weekly indemnity benefits.  
45. The language in this article is silent on what medical proof is necessary to establish  
entitlement to weekly indemnity benefits. In the absence of collective agreement  
language, the appropriate standard is objective reasonableness.  
46. If it is wrong in this interpretation, the union asserts that the language “proof of his illness  
satisfactory to the Company” is not a subjective standard that gives Morneau the  
unfettered right to medical information. Arbitrators have interpreted similar language,  
including the phrase “proof satisfactory to the employerand have concluded that such  
language applies an objective reasonableness standard.  
47. Similarly, the language in Article 26.02 only applies to entitlement to the two sick pay  
days and fitness to return to work and does not apply to weekly indemnity. Proof of  
fitness to return to work is only required when an employee is medically cleared to  
return. Article 26.02(a) also provides that an employee “may” be required to provide  
proof of illness which implies that a medical note is unnecessary for every absence.  
Benefits Booklet  
13  
48. The union does not dispute that the collective agreement incorporates the benefits  
booklet, but the booklet was not shared with the union until after the arbitration  
commenced. The union has never conceded the employer’s interpretation of the  
booklet.  
49. In addition, the union asserts that Morneau has not been applying the terms of the  
booklet. The employer cannot cherry-pick what parts of the booklet it wishes to enforce  
and ignore.  
Personal Health Information Protection Act  
50. There was much debate between the parties regarding the application of PHIPA. Both  
parties made detailed submissions on the legislation, and I do not intend to summarize  
all of these arguments here. Some of the arguments are set out in the union’s reply  
submissions and are found in the analysis section of the award.  
51. In general, the union submits that the Act applies to both the employer and its agent,  
Morneau. Morneau is a health information custodianunder the Act based on its role in  
collecting and assessing employees’ medical information to determine benefit  
entitlement, fitness to return to work, and its role in the accommodation process. The  
union relies on the Ontario Superior Court’s decision in Hooper infra and numerous  
arbitral awards supporting its position.  
52. The union relies on several sections in the legislation, including section 18, which  
requires a patient’s knowledgeable consent to release medical information. It also relies  
on sections 30 and 49, which provide that both health information and non-health  
14  
information custodians shall not collect or disclose more personal health information  
than is reasonably necessaryto meet the purpose for which it is used.  
Attending Physician Form  
53. The union raises several issues regarding the information requested on the medical  
forms, including the diagnosis, detail of treatment, list of medical restrictions, and the  
broad nature of the consent section. It provided a line-by-line review of the Attending  
Physician Form which is detailed in the analysis section of this award.  
54. The union submits that the offending sections should be struck out if it is correct on  
these points. It objects to the employer’s proposal that the questions be made voluntary.  
An employer cannot coerce an employee into consenting to the release of medical  
information, which it is not entitled to in the first place.  
55. The union further argues that the definition of disability on page two of the Attending  
Physician Form does not conform with the definition of “totally disabled” in the benefits  
booklet.  
Single Purpose  
56. The union maintains that the medical form must serve a single purpose; if an employee  
is applying for weekly indemnity benefits, the form should only contain the medical  
information necessary to support entitlement to that benefit. Morneau’s form collects  
information for multiple purposes, including entitlement to benefits, fitness to return to  
work, accommodation, and substantiating unpaid absences for seasonal employees.  
15  
57. The information needed to support a claim for weekly indemnity is not the same as that  
required to assess a claim for accommodation or affirm an employee’s fitness to return  
to work. The medical form should only collect as much information as necessary to  
support the employee’s specific claim and nothing more. This concept is rooted in the  
idea of informed consent that an employee should not be asked to authorize the release  
of medical information, which has nothing to do with their current claim. A form that  
seeks to collect information for multiple purposes undermines this principle.  
58. In the alternative, if I conclude that medical forms can be used for multiple purposes,  
then the union asserts that the form should direct the physician only to complete those  
sections that are relevant to the employee’s claim.  
First Instance  
59. There is some dispute whether the medical forms represent a request for medical  
information in the first instance. The union does not dispute that the longer an employee  
is off work, the more medical information a company may request to support an ongoing  
illness. The employer may also request further information if a doctor's note is  
inadequate or questionable.  
60. The current practice is for Morneau to send out the medical form following the sixth date  
of absence. The union submits that a request at this early stage is a request at first  
instance. Arbitrators recognize that the medical proof required at first instance is  
minimal. At this stage, the employer is only entitled to medical confirmation that the  
absence is due to a medical illness and its expected duration.  
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61. Similarly, arbitrators have generally accepted that minimal medical proof is required to  
secure an employee’s safe return to work unless evidence suggests that the employee  
presents a health and safety risk.  
62. Finally, it argues that the requirement to provide medical information under Article  
26.02(a) only arises when the employee can return to work and not sooner. The  
employee’s physician should not disclose medical restrictions until the employee is  
medically capable of returning to work.  
Mental Health Forms  
63. The union challenges Morneau’s use of separate medical forms for claims relating to  
mental illnesses. The union provided a line-by-line review of the mental health forms,  
which is set out in the analysis section of the award.  
64. The mental health forms represent a much more insidious incursion into its members'  
privacy rights. It asks the doctor to provide a full DSM assessment and includes  
questions relating to secondary diagnosis, substance use, psycho-social factors, and  
other information such as legal or financial problems. These questions go far beyond  
the requested information on the more general Attending Physician Form.  
65. None of this information is reasonably necessary to support proof of illness or  
entitlement to benefits. These questions are nothing more than a fishing expedition that  
seeks to gather the most intimate details about an employee’s private life. It asks  
rhetorically, did the parties intend for employees to reveal this much private information  
to qualify for weekly indemnity benefits.  
17  
66. The union further questions the need for two separate forms to assess physical and  
mental illness. Employees with mental illness should not be singled out or stigmatized  
by having their doctor complete a different form. This could have a chilling effect.  
Employees may choose not to apply for benefits to avoid sharing their medical history  
with the employer. It requests that I direct the employer to merge these forms into a  
single document.  
67. Finally, the union asserts that the mental health form does not comply with the benefits  
booklet as the definition of “total disability” described on the form differs from the  
definition in the booklet.  
Seasonal Employees  
68. The union challenges the use of the form for seasonal employees as they are not  
entitled to weekly indemnity benefits. It argues that seasonal employees should only be  
required to provide a doctor’s note that confirms their illness with an estimated return to  
work date. There is no basis in law or in the collective agreement language to compel a  
seasonal employee to complete a comprehensive medical form.  
69. If the employer has concerns that some seasonal employees book off sick for the entire  
off-season, they should address this issue on a case-by-case basis. The employer can  
request further medical information if a doctor’s note raises legitimate concerns. There is  
no need to require that all seasonal employees complete a detailed medical form for  
every absence. Furthermore, it is unreasonable to expect seasonal employees to pay  
for these forms when their sick time is unpaid.  
Standalone Consent Form  
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70. The union contests the standalone consent form sent to employees as part of the  
package of material sent along with the medical form. The standalone form gives  
Morneau authority to communicate directly with the employee’s physician on an ongoing  
basis and obtain information from other health care providers. If Morneau wishes to  
follow up with the employee’s physician, it must notify the employee and obtain fresh  
consent, according to the union.  
71. Morneau is not permitted to request prospective consent from an employee to  
communicate with other health care professionals. The form also authorizes Morneau to  
speak with an employee’s physician about other medical conditions that are unrelated to  
the absence.  
72. Most concerning for the union is that the form allows Morneau to share an employee’s  
medical information with the employer if there is a dispute over a claim. In effect, the  
standalone consent form provides the employer with a back door to obtain a copy of the  
employee’s entire medical file. This violates s.63(2) of the Occupational Health and  
Safety Act (“OHSA”), which requires an employer to obtain written consent directly from  
an employee before accessing their employee health file.  
73. The union challenges the employer’s assertion that the form is meant to provide  
administrative convenience to Morneau, for example, to permit it to transfer information  
to the LTD carrier to avoid any interruption in benefits. It points out that seasonal  
employees are not entitled to LTD benefits, yet they too are sent a copy of the consent  
form to sign. In any event, administrative convenience is not an excuse to violate an  
employee’s right to medical privacy.  
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74. It raises concern that the consent form may cause a chilling effect whereby some  
employees may choose not to apply for benefits knowing that the employer could gain  
access to their medical file. It was never the intention of the parties to permit the  
employer to have such unfettered access to an employee's medical history for the sake  
of twenty-six weeks of weekly indemnity entitlement.  
75. Finally, the union notes that there are no temporal limits on the form itself, which implies  
that Morneau is authorized to communicate with an employee’s physician indefinitely. It  
submits that the consent should only be valid when the employee qualifies for weekly  
indemnity benefits.  
Reimbursement for Medical Notes  
76. The union seeks reimbursement for the cost of having the medical form completed by a  
doctor. The union is not claiming payment for medical notes submitted in support of  
weekly indemnity benefits under Article 26.01. However, if an employee must have their  
doctor fill out a medical form before they return to work, the employer must reimburse  
them for that cost as per Article 26.02(b).  
Attendance Policy  
77. In addition to challenging the medical forms, the union contests various aspects of the  
employer’s Attendance Policy. For example, the policy stipulates that the company can  
discipline employees for non-compliance, including not providing a medical form  
diagnosis. The union asserts that employees should not be penalized for enforcing their  
privacy rights. The union’s submissions on the policy are detailed in the analysis  
section.  
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Dear Employee Letter  
78. The union contests the Dear Employeeletter sent to employees as part of the package  
of material along with the medical form. It submits that this letter is coercive in that it  
threatens discipline for non-compliance. It seeks to amend the letter to align with the  
privacy principles described in the arbitral case law.  
79. The union seeks to amend the pamphlet titled “What to do next” which is included in the  
same material. The details of its objections are set in the analysis section.  
Remedy  
80. By way of remedy, the union asks that I order the employer to direct Morneau: to amend  
the medical forms and other documents in accordance with the union’s detailed  
submissions on point; to use a single Attending Physician Form for both physical and  
mental illnesses; to stop using the medical forms for seasonal employees; to stop using  
the standalone consent form for all employees and to comply with the language of the  
benefits booklet.  
81. It further requests an order that the employer amends its Attendance Policy in  
accordance with the union’s detailed submissions on point.  
82. The union relies on the following authorities to support its submissions in this case:  
I.A.M., Local 1740 v. John Bertram & Sons Co., 1967 CarswellOnt 782 (Weiler), O.N.A.  
v. St. Joseph’s Health Centre, 2005 CarswellOnt 2981 Ontario Superior Court of Justice  
(Divisional Court), Hamilton Health Sciences Corp. v. O.N.A., 2007 CarswellOnt 9197  
(Surdykowski), Brant Community Healthcare System v. O.N.A., 2008 CarswellOnt 10318  
21  
(Harris), Society of Energy Professionals v. Ontario Power Generation, 2009  
CarswellOnt 5637 (Etherington), C.E.P., Local 1-S v. SaskTel, 2011 CarswellSask 514  
(Pelton), Canadian Bank Note Co. and IUOE, Local 772, Re, 2012 CarswellOnt 10489  
(Surdykowski), Toronto East General Hospital and ONA, Re, 2014 CarswellOnt 19060  
(Devlin), Revera Long Term Care Inc. and CUPE, Local 2564 (3-15-10), Re, 2014  
CarswellOnt 14010 (Goodfellow), Rocktenn Co. of Canada Inc. and USW, Local 1-830  
(Weekly Indemnity Benefits), Re, 2015 CarswellMan 547 (Peltz), Peterborough (County)  
v. CUPE, Local 4911, 2015 CarswellOnt 11164 (Bendel), OPSEU and Ontario (Treasury  
Board Secretariat), Re, 2017 CarswellOnt 11994 (Dissanayake), Toronto Hydro-Electric  
System Ltd. and Society of United Professionals (Attending Physician Statement), Re,  
2019 CarswellOnt 12143 (Goodfellow), Inergi LP and Society of United Professionals  
(2019-0258), Re, 2020 CarswellOnt 14912 (Stout).  
EMPLOYER’S POSITION  
83. The employer began its submission with the proposition that the parties are entitled to  
what they bargained for in the collective agreement, nothing more and nothing less. As  
Arbitrator Surdykowski stated in Petro Canada infra, there is a presumption in the arbitral  
law that the parties meant what they wrote and that arbitrators must give meaning to the  
words used in the collective agreement. It is not the role of the arbitrator to save the  
parties from the consequences of the bargain they made.  
84. The parties bargained for several benefits, which come at a high cost to the employer.  
As part of the trade-off for providing such benefits, the parties negotiated language that  
vests in the employer authority to decide what information is required to establish  
entitlement to benefits. This is described in Articles 26.01 of the collective agreement,  
22  
which provides that an employee claiming weekly indemnity benefits must provide  
medical proof of his illness satisfactory to the Company.”  
85. The onus is on the employee to establish entitlement to sick benefits. The same is true  
for an unpaid absence; an employee cannot absent themselves without providing proper  
medical proof when called upon to do so.  
86. The employer has the right to control absenteeism in the workplace. It also has an  
obligation to provide accommodated work if a disabled employee requires modified  
duties.  
The employee has a corresponding obligation to cooperate in the  
accommodation process by providing information to support their medical restrictions.  
87. The employer argues that the medical forms sent out by Morneau are not requests for  
medical information in the first instance, as the forms are sent out after the employee’s  
sixth working day of illness. By the time the form is completed, the employee will be off  
work for more than a week, if not longer. Arbitrators have recognized that the longer an  
employee is off work, the more medical information is necessary to support an ongoing  
absence.  
88. The case law is replete with decisions that question the value of note-pad style doctors  
notes which state little more than an employee is off work due to illness. The purpose of  
a detailed medical form is to avoid the problems associated with these types of doctor’s  
notes.  
89. Morneau is in the business of assessing medical information and is in the best position  
to determine what medical information is necessary to support a claim for benefits.  
23  
Arbitrators have no medical expertise and should not be deciding what medical proof is  
needed to substantiate an illness.  
90. Using third-party administrators increases an employee’s medical privacy as it removes  
the employer from the decision-making process who has no access to the submitted  
medical information. Once Morneau receives the medical information, it is restricted in  
its disclosure.  
Past Practice  
91. The employer maintains that Morneau's medical forms are no different from the forms  
used by previous plan administrators. This is a practice that goes back over thirty years.  
The employer does not rely on this practice to argue estoppel. The practice represents  
a common understanding between the parties regarding the proper interpretation of  
Articles 26.  
92. Mr. Davenport’s claim that he was unaware of the medical forms used is irrelevant, as  
the local union leadership was privy to this information. The company provided a list of  
UFCW stewards who have had their doctors fill out forms similar to Morneau’s form.  
The union cannot plead willful blindness as there is no dispute that these forms were  
used in the past.  
93. Although the forms have gone through various iterations over the years, from one plan  
administrator to the next, the contents of the forms have remained relatively consistent.  
The company provided a chart summarizing the information on the previous medical  
forms; although there are slight differences, the contents of the forms are similar to those  
24  
used by Morneau. The union never took issue with the forms until the grievance was  
filed.  
94. The employer also relies on several arbitration awards between the parties, which  
demonstrate that the union was familiar with the medical adjudication process and the  
employer’s Attendance Policy. Some of these decisions directly challenge the policy  
itself, and the union cannot raise issues with certain aspects of the policy when it failed  
to do so in prior arbitration hearings.  
Collective Agreement Language  
95. What sets this case apart from all of the other “medical form” cases is the language of  
the collective agreement. Articles 26.01 and 26.02 refer to medical proof satisfactory to  
the Company, representing a subjective standard. The union's case law relies on  
collective agreement language that applies an objective reasonableness standard.  
96. Arbitrators, including Surdykowski in Hamilton Health Sciences supra, have endorsed  
the view that the parties are entitled to negotiate their own standard regarding the  
medical information required to support proof of illness. This is what the parties have  
done in Articles 26.01 and 26.02. If the union is not happy with this arrangement, it can  
negotiate something different at the bargaining table.  
97. The language in Articles 26.01 requires that the employee provides “proof of his illness  
satisfactory to the Company”; Article 26.02 applies a similar standard, “proper medical  
proofsatisfactory to the Company”. Both use a subjective standard that vests  
authority in the employer to decide what medical information is required to satisfy a  
claim.  
25  
98. The employer concedes that it cannot act in bad faith or arbitrarily when requesting such  
information. Still, short of those restrictions, it is not bound by the objective  
reasonableness standard applied by arbitrators in the “medical forms” cases.  
99. This was the bargain struck when the parties negotiated Articles 26 over thirty years  
ago. The union has the authority to bind its members through the language it negotiates.  
If employees do not wish to provide the information requested, they can choose to forgo  
the benefit.  
100.  
The employer reviewed other provisions in the collective agreement which use  
objective language including: “reasonable times” in Articles 5.03 and 5.05, “reasonable  
period” in Article 5.06, “approval will not be withheld unreasonably” in Article 18.01,  
“reasonable number of employees” in Article 19.05), or hybrid terms such as “without  
reasonable justification, satisfactory to the Company.These are all examples of  
objective language used by the parties that contrast with Article 26.  
Benefits Booklet  
101.  
The employer also relies on the language in the benefits booklet incorporated  
into the collective agreement. The booklet stipulates that the employees doctor must  
complete the Attending Physician Form. Ms. Trinder’s unchallenged evidence was that,  
on average, nearly sixty forms are submitted each year by UFCW members. This  
practice continued unchallenged for over thirty years.  
102.  
In the employer's view, the language in the benefits booklet is a complete answer  
to the grievance. Much of the information requested on the medical forms flows directly  
26  
from the booklet, which requires not only proof of “total disability” but that employees are  
under the continuing care of a physician. The questions on the form relating to the  
frequency of doctor’s appointments and visits to other health practitioners are all relevant  
to the continuity of care; so too are the questions regarding referrals to specialists and a  
listing of the medications taken.  
103.  
The booklet also defines “recurrent disabilities” as illnesses separated by less  
than two weeks or involving the same medical condition. If an illness is recurring, it is a  
single illness for entitlement purposes. The questions on the forms relating to when the  
symptoms first arose the timing of the first doctor’s visit are relevant to determining  
whether an illness is recurring.  
PHIPA  
104.  
There was much debate between the parties regarding the application of PHIPA.  
The employer observes that arbitrators have elevated PHIPA to almost constitutional-like  
status and have used the legislation to scrutinize medical forms line-by-line to ensure  
compliance.  
105.  
According to the employer, arbitrators have wrongly applied the legislation to  
employers and plan administrators. The statute focuses on the use, collection, and  
disclosure of medical information by “health information custodians” as defined in the  
Act. This includes hospitals, nursing homes, family doctors, among others healthcare  
providers, but not employers and plan administrators.  
106.  
Plan administrators like Morneau, fall within the definition of a “non-health  
information custodian” as per section 7(1)(b)(ii) of the Act. The Act contemplates that a  
27  
non-health custodian is an entity that receives health information from a health  
information custodian such as a family physician. The restrictions placed on non-health  
information custodians are two-fold; first, they are not permitted to disclose information  
received from a health information custodian without the patient's consent; and second,  
they can only use the information for the purposes it was collected.  
107.  
The employer referred me to section 18(1)(b) of the Act, which defines the term  
“knowledgeable consent” and is commonly cited by arbitrators to justify revising the  
consent section on the medical form. Some arbitrators have stated that to be  
knowledgeable consent, the patient must be informed of the actual medical information  
to be disclosed. Arbitrators have also used this rationale to prevent employers from  
seeking prospective consentwhich permits a plan administrator to communicate with  
the employee’s doctor directly or with other healthcare providers without obtaining  
another signed consent form.  
108.  
The employer asserts that this analysis is wrong. To be knowledgeable consent,  
an employee need only be aware of the purpose of the medical disclosure and not what  
information is actually disclosed. Most employees have no idea of what information  
exists in their medical file. The term “knowledgeable consent” is defined under section  
15 of the Act, which provides that consent is knowledgeable if the person knows the  
reasons for the disclosure. The individual does not need to know the specific  
information disclosed.  
109.  
Furthermore, employees are entitled to withdraw their consent at any time as set  
out in section19 of the Act. If Morneau were required to obtain fresh consent every time  
28  
a doctor released new medical information there would be no need for an employee to  
withdraw their consent.  
110.  
Section 30 of PHIPA provides that health information custodian shall not collect  
more health information that is reasonably necessaryfor the purpose collected.  
Arbitrators have relied on this section to limit the information on medical forms. The  
employer asserts that section 30 of the Act has no application to non-health information  
custodians. This section may limit what information an employee’s doctor may disclose,  
but it does not restrict the information that Morneau can collect as a non-health  
information custodian.  
111.  
I asked the employer to comment on the Divisional Court’s decision in Hooper v.  
College of Nurses of Ontario, 2006 22656 (ON SCDC) which involved the  
improper release of a nurse’s occupational health file to an investigator of the College of  
Nurses (“CNO”). The Court, in that case, concluded that the hospital’s occupational  
health department was a health information custodian under PHIPA. The employer  
maintains that the Court’s findings on that point are obiter. It further submits that the  
facts, in that case, are very nuanced. The Court found that the hospital’s occupational  
health department was a health information custodian because its physician had done a  
health assessment of the nurse under investigation by the CNO.  
facts that are before me in this case.  
These are not the  
112.  
In further support of its position, the employer relies on a publication put out by  
the Privacy Commission of Ontario titled, A Guide to PHIPA, written by the  
Commission’s former chair, Ann Cavoukin. The publication describes who is and is not  
a health information custodian under the Act, and it clarifies that employers are not  
29  
health information custodians. It also explains that benefit providers and insurance  
companies are not health information custodians under the legislation.  
113.  
Finally, the employer notes that the Province introduced the PHIPA legislation in  
2004. If the union believed that the employer’s actions violated the statute, why did it not  
raise a grievance earlier?  
Attending Physician Form  
114.  
The employer maintains that there are a lot of inconsistencies in the case law  
regarding what information an employer may collect on a medical form and what runs  
afoul of privacy rights. There is no consensus in the law on these issues. Even  
Arbitrator Surdykowski has walked back some of his early pronouncements in the  
Hamilton Health Sciences supra case, going so far as to suggest that the employer may  
request a diagnosis so long as the request is not coerced.  
115.  
Like the union, the company provided a line-by-line analysis of the medical forms  
in dispute. I have included those submissions in the analysis section. The employer  
submits that if any parts of the medical form run afoul of an employee’s medical privacy,  
it can correct this by clarifying that the information requested is voluntary and the  
employee’s doctor can choose to answer the question or not. It notes that both  
Arbitrators Surdykowski and Stout endorsed this option in Hamilton Health Sciences  
supra and Inergi supra, respectively.  
Single Purpose  
116.  
The employer maintains that there is nothing improper in using the medical forms  
for multiple purposes, so long as the consent section on the form describes those  
30  
purposes. There is no reason why Morneau cannot use a single medical form to collect  
information to assess weekly indemnity entitlement and determine whether an employee  
can return work on modified duties. Having the employee’s physician fill out multiple  
forms makes little sense.  
117.  
This will only cause delays in employees receiving benefits and interrupt  
employees returning to work. It would also increase costs to the employee who would  
have to pay for each additional medical forms completed.  
118.  
There is also nothing improper with the employer requesting information  
regarding an employee’s medical restrictions at the outset to determine if the employee  
can return to modified work. The employer has the right to manage absenteeism in the  
workplace by offering modified duties, and employees are obliged to cooperate in the  
accommodation process.  
Mental Health Form  
119.  
The employer submits that the information collected on Morneau’s mental health  
form is reasonable given the difficulties in assessing mental illness, which is often based  
exclusively on the subjective reporting of symptoms. Arbitrators have endorsed the  
view that more information is generally required to evaluate a claim based on mental  
illness.  
120.  
The employer explains that the mental health form collects information about an  
employee’s primary and secondary diagnosis, substance use, financial and legal  
problems, and other psycho-social factors because these factors often delay the  
31  
treatment of mental health conditions. Morneau will consider all of this information when  
deciding whether an employee needs more time off to achieve recovery.  
121.  
The benefit booklet stipulates that the employer may send an employee for a  
mental health evaluation. This reflects that mental illness is challenging to assess and  
may require further expert evaluation. It also explains why Morneau requests more  
information at the front end of the process.  
Seasonal Employees  
122.  
The employer states there is nothing wrong with using the medical forms for  
seasonal employees. The employer relies on seasonal employees to meet its  
production needs even in the off-season. The company can schedule seasonal  
employees year-round to meet their production demands if no permanent employees are  
on layoff. More frequently, seasonal employees are utilized during the off-season to  
replace permanent employees who are off work due to illness, pregnancy, or parental  
leave or are on other approved leaves.  
123.  
It explained that some seasonal employees are not interested in working during  
the off-season and will provide doctors’ notes claiming illness for the entire off-season.  
The employer is entitled to further medical information in these circumstances. The  
employer is entitled to know if their absence is medically supported and whether they  
can offer modified duties based on the employee’s medical restrictions.  
124.  
Seasonal employees are not required to submit a medical form for every  
absence. The company uses the medical forms to evaluate absences that are longer in  
32  
duration or are questionable.  
The medical forms that are used to validate these  
absences are therefore not a request for medical information, in the first instance.  
125.  
The employer does not rely on Article 26 to support the use of medical forms for  
seasonal employees. The right to request medical proof of illness for any absence,  
including unpaid absences, is a management right.  
Standalone Consent Form  
126.  
As to the standalone consent form, the employer explains that the form is used to  
ensure compliance with PHIPA. The purpose of the standalone consent form is to avoid  
the need to obtain additional signed consent to transfer medical information to other  
parties, such as the LTD carrier. This ensures no interruption of benefits during the  
transition from weekly indemnity to long-term disability benefits.  
127.  
The form also permits Morneau to transfer the file to the employer if there is a  
dispute over entitlement. The form does not give the employer a carte blanche right to  
receive medical information unless litigation is contemplated. The employer reminds me  
that it could seek this information through a production order at the arbitration stage.  
The form simply provides some administrative convenience in that Morneau does not  
have to obtain fresh consent whenever it discloses the file to third parties.  
128.  
It further clarifies that employees are not required to sign the form, and there is  
no penalty if they choose not to sign. If they do sign the form, they can withdraw their  
consent at any time.  
Reimbursement  
33  
129.  
The employer asserts that employees are only entitled to reimbursement for  
medical notes it specifically requests to confirm an employee is medically cleared to  
return to work. This is set out in Article 26.02(b). The company is a food manufacturer  
regulated under the Food and Drugs Act R.S.C. 1985, c.F-27, and the Regulation  
requires that employees report to work free of communicable disease. Article 26.02(b)  
was added to the collective agreement to reimburse for medical notes required by  
Regulation.  
130.  
The employer has never paid for medical forms submitted in support of weekly  
indemnity or used for accommodation purposes. What the union seeks by way of  
reimbursement is contrary to nearly thirty years of company practice.  
Attendance Policy  
131.  
The employer challenges the union’s demands to amend its Attendance Policy.  
Its submissions on that point are detailed in the analysis section.  
“What to do next” Pamphlet  
132.  
Finally, the pamphlet titled “What to do next” states that employees have ten  
days to submit their medical information. The employer submits that this is a reasonable  
time limit, and the employer typically pays the benefit while Morneau awaits the medical  
form. Alternatively, the employer could choose not to pay the benefit until it receives  
proper medical proof, but that is not in anyone’s interest.  
133.  
The employer asks that the grievance be dismissed for all of these reasons.  
34  
134.  
The employer relied on the following authorities in support of its submissions:  
Petro Canada Lubricants Inc. and Unifor, Local 593 (Thornton), Re 2019 CarswellOnt  
10685 (Surdykowski), UAW v Young Spring & Wire Corp. of Canada, 1965 CarswellOnt  
671 (Lane), St. Jean de Brebeuf Hospital v CUPE, Local 1101, 1977 CarswellOnt 1846  
(Swan), Nanaimo Regional General Hospital and HEU (Bertram), 1999 CarswellBC  
3008 (Hope), Ontario Power Generation Inc and Society of Energy Professionals, 2000  
CarswellOnt 9080 (Bloch) May 8, 2000, Atlantic Technical & Communications Works  
Union v Aliant Telecom Inc, 2005 CarswellNat 2483 (Archibald), TRW Linkage &  
Suspension Division v TPEA, 2005 CarswellOnt 6375 (Hinnegan), BA International Inc v  
CEP, Local 588G, 2000 CarswellOnt 7243 (Brown), CEP, Local 1-S v SaskTel, 2011  
CarswellSask 514 (Pelton), Ontario Power Generation Inc and Power Workers’ Union  
(CUPE, Local 1000), 2015 CarswellOnt 3642 (Davie), Inergi LP and Society of United  
Professionals (2019-0258), 2020 CarswellOnt 14912 (Stout), Inergi LP and Society of  
United Professionals (2019-0258) 2021 23723 (Stout), Providence Care,  
Mental Health Services and OPSEU, Local 431 (Winton), 2011 CarswellOnt 15998  
(Surdykowski), Teamsters, Local 879 v OLG Point Edward Casino, 2011 CarswellOnt  
9274 (Jesin), Central Care Corp v CLAC, 2011 CarswellOnt 1682 (Knopf), Complex  
Services Inc v OPSEU, Local 278, 2012 CarswellOnt 3177 (Surdykowski), Insurance  
Corp of British Columbia and COPE, Local 378, 2010 CarswellBC 4097 (Burke), EPCOR  
Utilities Inc and CSU52 (Medical Forms), 2021 CarswellAlta 1426 (Casey), A Guide to  
the Personal Health Information Protection Act (Information and Privacy Commissioner,  
Ontario, December 2004).  
UNION’S REPLY  
135.  
In reply, the union asserts that nothing in the employment relationship gives an  
employer the inherent right to demand that employees compromise their privacy rights.  
35  
The right to medical privacy does not flow solely from PHIPA; the right to privacy has  
been recognized in the arbitral jurisprudence for decades.  
136.  
Arbitrators have not ignored the collective agreement language when applying  
the concept of medical privacy. In his seminal decision in Hamilton Health Sciences  
supra, Arbitrator Surdykowski considered the language in the HOODIP brochure, which  
is incorporated into the hospital’s collective agreement. The brochure provides that the  
hospital is entitled to medical “proof satisfactory to the employer” to support a claim for  
sick benefits. Arbitrator Surdykowski reviewed the language and concluded that it  
applied an objective reasonable standard. Other arbitrators have come to the same  
conclusion.  
137.  
The arbitration awards between UFCW and Good Humour that the employer  
relies upon, reveal nothing about the union’s knowledge of a past practice relevant to  
this case. The awards, including those that challenge the Attendance Policy, raise  
issues not covered in this grievance. The union is not barred from litigating disputes that  
were never adjudicated in the past.  
138.  
As to the benefits booklet, the union does not dispute that it is incorporated into  
the collective agreement, but the booklet only references a medical form; it does not  
stipulate what is on the form. The union does not object to using a medial form; it  
objects to the information collected on the form. Nothing in the booklet suggests that the  
employer has the carte blanche right to ask for whatever it wants on the forms without  
consideration of privacy rights. The union further submits that Morneau has not been  
applying the terms set out in the booklet. The employer cannot rely on the terms of a  
booklet that Morneau has never fully administered.  
36  
139.  
The employer has put forward no authorities supporting its claim that Morneau is  
not a health information custodian under PHIPA. Arbitrators have come to the opposite  
conclusion finding that both employers and plan administrators are health information  
custodians under the legislation.  
The Ontario Superior Court came to the same  
conclusion in Hooper supra.  
140.  
PHIPA is remedial legislation that arbitrators should interpret broadly. The  
statute's purpose is to protect an individual’s right to medical privacy, and the legislation  
is not limited to health information custodians.  
141.  
The information that Morneau manages is a private medical file. Morneau's  
material includes a letter to the physician describing its role in managing confidential  
medical information used in the return to work process. This is no different from the  
information managed by the hospital in Hooper supra. The Court’s decision, in that  
case, is binding authority. The employer’s suggestion that the Court erred in its findings  
is not for me to decide as I do not sit in appeal of that decision.  
142.  
Employers have raised similar arguments regarding the non-application of  
PHIPA, which arbitrators have rejected. The arbitral consensus is that the legislation is  
applicable and that plan administrators are health information custodians under the Act.  
There is no reason to depart from the arbitral consensus.  
143.  
As to the Privacy Commission’s Guide to PHIPPA, the union observes that this  
publication is not legally binding authority. It does not take precedent over the Court’s  
ruling in Hooper supra or the arbitral case law.  
37  
144.  
In the alternative, the union submits that even if I find that Morneau is not a  
health information custodian, the employer still violates PHIPA. Section 7(1)(b)(ii) of the  
Act provides that the use and disclosure of health information apply to non-health  
information custodians. Section 49(2) provides that non-health information custodians  
may only collect what is “reasonably necessary” to achieve the purpose for which the  
information is collected.  
145.  
In the further alternative, the union submits that an arbitrator’s jurisdiction to  
apply privacy principles does not flow solely from PHIPA. Arbitrators have applied  
principles regarding medical privacy independent of the statute, and numerous  
arbitration awards apply the same privacy principles without reference to PHIPA.  
146.  
Regarding reimbursement, the union clarifies that it is not arguing that employees  
are entitled to repayment for the cost of medical notes used in support of weekly  
indemnity claims. If the medical form is required to support an employee’s return to  
work, then the employee is entitled to reimbursement under Article 26.02(b).  
147.  
The union relies on the following additional authorities in support of its reply  
submissions: Orillia Soldiers’ Memorial Hospital v. Ontario Public Service Employees  
Union, Local 383 (Privacy Breach Grievance), [2020] O.LA.A. N0. 305 (Abramsky),  
London Health Sciences and Ontario Nurses’ Assn. (Employee Medical Information  
Grievance), [2016] O.L.A.A. No. 503 (Slotnick).  
38  
ANALYSIS  
148.  
I begin by considering some general principles that flow from the arbitral case  
law. It is well-settled that an employee who seeks entitlement to sick pay under a  
collective agreement has the onus to provide sufficient medical information to establish  
entitlement to that benefit. Proof of illness for short absences generally requires a  
standard doctor’s note confirming illness.  
149.  
An employer may request proof of illness regardless of whether an employee is  
entitled to sick benefits or not, as part of its right to manage absenteeism in the  
workplace. Again, the medical proof necessary to confirm a brief illness is generally  
minimal.  
150.  
The longer an employee is off work, the more medical information an employer  
may request regarding the absence. Similarly, if an employer has genuine concerns  
regarding the legitimacy of an absence, it may request further medical proof.  
151.  
An employee who is off work for longer durations may be required to provide  
proof of fitness to return to work. In addition, if an employee’s return to work presents a  
potential health and safety risk, the employer may request medical information to assess  
that risk.  
152.  
Finally, an employee who returns to work and seeks accommodation may be  
required to provide proof of their medical restrictions. In all of these situations, the onus  
rests on the employee to provide sufficient medical information to support their claim.  
39  
153.  
An employer is entitled to use a third-party administrator to assess the medical  
information submitted in support of a claim for sick benefits, accommodation, or to  
substantiate an unpaid absence. The advantage of using a third party to administer  
medical claims is that it creates a wall between management and the medical  
information collected. Furthermore, most employers do not have the expertise to assess  
the medical information submitted and benefit from the services of a third-party  
specialist.  
154.  
By acting as an agent for the employer, a third-party administrator steps into the  
employer's shoes in the sense that they enjoy the same rights and obligations as the  
employer concerning the use, collection, and disclosure of medical information. If an  
employer cannot request specific medical information, its agent is similarly bound by the  
same restriction. Arbitrator Surdykowski discussed this concept in Hamilton Health  
Science supra at paragraph 28,  
28 As a general matter there is nothing to prevent an employer from contracting  
out the information gathering or assessment of medical information function, as  
the Hospital has done in this case. But the party to whom the employer has  
contracted out this function stands in the shoes of the employer and has no  
greater right to or need for information than the employer has if it performs the  
function itself. And the employer is responsible for the conduct of any third party  
that performs such a function for it. However, the insertion of such a third party,  
which is a stranger to the workplace and beyond the direct reach of the collective  
agreement, may raise suspicions and increase an employee’s reluctance to  
provide confidential personal medical information.  
155.  
The idea that employees enjoy a certain right to privacy is not a new proposition.  
The concept of privacy rights in the workplace has existed in the arbitral case law for  
40  
many years. Arbitrator Etherington discussed the pervasiveness of privacy rights in the  
arbitral jurisprudence dating back to the early 1960s,  
This case deals with the appropriate balancing of employee privacy interests with  
the legitimate business interests of the employer in the context of a requirement  
to provide confidential personal health information to establish entitlement to  
short term sick leave benefits at the point of a five day absence. The arbitral  
jurisprudence going back to the 1960’s is replete with decisions dealing with the  
balancing of these interests in many different contexts ranging from the search of  
employees or their effects, drug and alcohol testing, video surveillance of  
employee activity, employer access to employee medical information, lie detector  
tests, police security checks, and most recently, the use of biometric identification  
devices for security and payroll purposes. The common theme running  
throughout the long line of jurisprudence that has evolved in all these different  
contexts, is an arbitral recognition that individual employees have important  
privacy interests that must be balanced with the legitimate business interests of  
employers when assessing an employer policy or company rule that may  
interfere with employee privacy interests. Thus where unions have been able to  
demonstrate that the privacy interests of affected employees are threatened by  
an employer policy or directive, whether the rule deals with employee searches,  
video surveillance, or drug and alcohol testing, employers have been called upon  
to demonstrate that the rule or policy is reasonably necessary, considered on an  
objective basis, to protect legitimate employer business interests or to prove that  
the rule or policy has been agreed to in the collective agreement. And in some  
areas, as noted by the union herein, human rights or privacy legislation has  
intervened to prevent the parties from agreeing to a practice or policy that is  
contrary to that legislation. However, I note that in most cases the legislation has  
also recognized that the rights provided for therein are not absolute and some  
mechanism is provided for employers to demonstrate that they would suffer  
undue hardship or unreasonable detriment to their business interests if their  
policies or directives were to be struck down. Finally, if one looks at the many  
decisions on these issues in the various contexts referred to above, in  
determining the appropriate balancing of interests between privacy and business  
concerns in particular cases, there is a proportionality principle that is implicit in  
41  
much of the jurisprudence. The appropriate balancing point in terms of whether  
the employer rule or policy will be held to be reasonably necessary and how  
much interference with employee privacy might be allowed, is significantly  
affected by the level of intrusiveness of privacy interests that would result from  
the rule and the importance of the employer business interest at stake. The  
higher the degree of intrusiveness and interference with privacy that results from  
the employer policy, the more the employer will be called upon to demonstrate  
the importance of the business interest that would be threatened or lost without  
the policy.  
156.  
Similarly, the concept of medical privacy has been recognized in the case law  
before there was legislative recognition of a patient’s right to medical confidentiality. The  
Ontario Divisional Court endorsed the concept of medical privacy in St. Joseph’s Health  
Centre supra and cited with approval arbitration decisions that pre-date the enactment of  
PHIPA in 2004.  
157.  
In the years that followed, several arbitration awards starting with Arbitrator  
Surdykowski’s 2007 decision in Hamilton Health Sciences supra, began to apply the  
principles of medical privacy in the context of third-party medical forms similar to those  
used by Morneau in this case.  
158.  
What can be gleaned from the early case law is that an employer is only entitled  
to sufficient medical proof of illness to satisfy a reasonable objective employer. In the  
context of medical privacy, what is reasonably objective is the least intrusive medical  
information necessary to support an absence or entitlement to benefits.  
42  
159.  
It is worth quoting the Hamilton Health Sciences supra case at length, as many of  
the principles discussed in that case have been adopted and applied by arbitrators in  
subsequent awards,  
20 Both subjectively and objectively, personal medical information is confidential  
personal information. The confidentiality of the doctor/patient relationship and  
personal medical information is universally and legislatively recognized as one of  
the most significant privacy rights in modern Canadian society. There appears to  
be a general societal notion that the right to privacy is a basic human right,  
particularly in a modern democratic society. But employer and employee rights in  
that respect do not arise out of the air. It is far from clear that there is a common  
law right to privacy (although there is some American jurisprudence that seems  
to suggest there is see, for example, Holloman v. Life Ins. Co. of Virginia, 192  
S.C. 454, 7 S.E.2d 169, 127 A.L.R. 110 (U.S. S.C. Sup. Ct. 1940)), but I think it  
unnecessary to digress into that discussion (particularly when the parties did not  
do so). Although the right to privacy is not a right listed in the Canadian Charter  
of Rights and Freedoms or the Human Rights Code, there is privacy protection  
legislation that addresses and reflects the prevailing societal notions of privacy  
rights with respect to personal health information. This legislation “occupies the  
field” and overtakes any common law notion of a right to privacy. The Personal  
Health Information Protection Act, 2004 (the “PHIPA”; see Appendix “D”,  
attached) is a comprehensive piece of health care privacy legislation. The  
Occupational Health and Safety Act (the “OHSA”) contains a medical information  
privacy provision which prevails over the PHIPA (section 63(6); sec Appendix  
“E”, attached).  
21 There is nothing in the mere existence of an employment relationship that  
gives the employer any inherent right to compel its employees to compromise  
their legitimate right to keep personal medical information confidential. An  
employer only has a right to an employee’s confidential medical information to  
the extent that legislation or a collective agreement or other contract of  
employment specifically so provides, or that is demonstrably required and  
permitted by law for the particular purpose. Except where required or permitted  
43  
by law an employer cannot seek and a doctor cannot give out any patient  
medical information without the patient’s freely given informed specific  
authorization and consent. But there are few if any things that are confidential for  
all purposes or in all circumstances and the privacy right that attaches to  
confidential medical information is not absolute. The dispute between the parties  
reveals the tension between an employer’s right to or legitimate need for  
information in order to properly manage its business and the workplace, and to  
meet its statutory and collective agreement obligations, and an employee’s right  
to personal privacy.  
22 The law that applies to privacy issues includes the “law” that the parties to a  
collective agreement of individual contract of employment create for themselves.  
Of course this party created law must fit within the mandatory parameters  
created by legislation. There is some legislation that parties cannot contract out  
of (the Labour Relations Act, 1995 and the Employment Standards Act, for  
example), and there is legislation that the parties can contract out of (the  
Arbitration Act, for example). Parties cannot contract out of the PHIPA or the  
OHSA.  
25 As a matter of general principle in that latter respect, what is required is  
sufficient reliable information to satisfy a reasonable objective employer that the  
employee was in fact absent from work due to illness or injury, and to any  
benefits claimed (see, Arbitrator Swan’s comments in St. Jean de Brebeuf  
Hospital v. C.U.P.E., Local 1101 (1977), 16 L.A.C. (2d) 199 (Ont. Arb.), at pp.  
204-206). As a general matter, the least intrusive non-punitive interpretive  
approach that balances the legitimate business interests of the employer and the  
privacy interests of the employee is appropriate. But what the employer is entitled  
to, and concomitantly what the employee is required to provide, will first and  
foremost depend on what the collective agreement or legislation provide in that  
respect.  
44  
160.  
There are several takeaways from the Hamilton Health Sciences supra case: that  
privacy rights are not absolute; that an arbitrator must balance the competing interests of  
the employee and employer; that the parties can negotiate their own standard of medical  
proof; and that those standards must comply with any legislative requirements.  
161.  
Much like the earlier case law on privacy rights, the focus here is on balancing of  
interests between an employee’s right to maintain medical privacy and an employer’s  
legitimate interests in ensuring that it has sufficient information: to support entitlement to  
benefits, to ensure fitness to return to work, to substantiate an unpaid absence, or to  
confirm the need for accommodation. Arbitrators have attempted to strike this balance  
by limiting the employer's right to detailed medical information in the first instance when  
an employee first goes off work. Arbitrator Surdykowski discusses this in Complex  
Services supra at paragraph 84,  
An employee's personal medical information is generally acknowledged to be  
private and confidential. However, it is well established (and should be obvious)  
that an employer is entitled to access sufficient such information for legitimate  
purposes, including to be assured that the employee is able to continue or return  
to work, or to provide necessary appropriate accommodation - to ensure that the  
employee can work without jeopardizing her safety, or that of other employees  
(or the employer's "customers"). An employer is entitled to only the least such  
information necessary for the purpose and an employee should generally not be  
required to disclose their medical files, or even the diagnosis or treatment.  
However, exactly what is required will depend on the circumstances and purpose  
- and may very well include diagnosis, or treatment, or other information.  
162.  
This concept that an employer is entitled to the least information necessary is  
rooted in the notion of reasonableness. This assumes that the employer can only  
request information relevant to the employee’s current illness. The medical form should  
45  
not collect information on the employee's general state of health. Requests for more  
detailed medical information may be necessary later, but are not justified in the first  
instance.  
First Instance  
163.  
There is a dispute between the parties whether the medical forms represent a  
request for information in the first instance. The employer reminded me that Morneau  
only sends the medical forms out after the sixth working day of absence. At this point,  
the employee has already submitted a doctor’s note confirming the fourth and fifth day of  
illness. The information on the form is meant to support ongoing entitlement. The  
employer asserts that arbitrators have endorsed the view that the longer an employee is  
off work, the more medical is justified to support their absence.  
164.  
The union, for its part, submits that arbitrators have already addressed this issue.  
On that point, I note that Arbitrator Stout considered a similar objection by the employer  
in Inergi supra where the requirement to submit a medical came on the fifth day of  
absence,  
51 There have been a number of arbitral awards that have considered issues  
arising from an employer’s request for medical information in the “first instance.”  
The Company submits that in this case the MAR Form is not a request in the first  
instance under this Sick Pay Plan because employees are not required to submit  
a MAR until after five (5) days. I disagree with the Company’s submission on this  
point. The most relevant awards addressing issues relating to employer requests  
for medical information in the “first instance” all relate to requests under short  
term disability or sick plans after five (5) days, which is the same situation as the  
matter before me.  
46  
165.  
I agree with Arbitrator Stout’s conclusion that the request for medical information  
on the sixth day of absence is in line with other arbitral decisions and is still a request in  
the first instance. A request for medical evidence on the sixth day of illness does not  
require much information to satisfy proof of illness unless the employer has reason to  
doubt the legitimacy of the illness or the information provided.  
Collective Agreement Language  
166.  
I agree with the employer that the parties are free to negotiate what medical  
evidence is necessary to establish entitlement to a benefit under the collective  
agreement. Arbitrator Surdykowski endorsed this view in Hamilton Health Sciences  
supra,  
26 I note that the privacy legislation provision is written to require that (subject to  
exceptions stipulated) the person concerned is the one who must provide an  
appropriate consent to the disclosure of her confidential medical information. This  
does not necessarily mean that the person concerned is the only one who can  
consent to the release of confidential personal medical information for the  
purpose of establishing the bona fides of an absence form work or an entitlement  
to paid benefits in that respect. In this jurisdiction a union which holds bargaining  
rights for a bargaining unit of employees has the exclusive right to represent  
those employees in all employment related matters. Ail employee cannot bargain  
directly with her employer in that respect Indeed, it is an unfair labour practice for  
an employer and an employee to bargain directly with respect to any term,  
condition or other matter related to the employee’s employment in the bargaining  
unit (sections 70 and 73 of the Labour Relations Act, 1995). Accordingly, the  
Union is entitled to negotiate both collective agreement benefits entitlements and  
the preconditions to such entitlements, including the information that must be  
provided in order to obtain a particular benefit. That is, as the exclusive  
bargaining agent the Union can effectively consent to the release of the  
confidential personal medical information that is required in order to establish  
entitlement to an STD benefit payment on behalf of bargaining unit employees  
47  
(subject of course to a bargaining unit employee declining available STD  
benefits).  
167.  
The employer asserts that the parties negotiated language, which effectively  
contracts out of the presumption of privacy in the case law and instead applies a  
subjective standard. It relies specifically on the phrase “proof of his illness satisfactory to  
the Companyfound in Article 26.01(b) and proper medical proof satisfactory to the  
Company” found in Article 26.02(a). The union submits that this language only applies  
to the fourth and fifth day of illness and not to weekly indemnity benefits. In my view, the  
union’s interpretation is partially correct. The relevant language in Article 26 provides,  
26.01 The Company will pay the full premium cost to provide the following  
insured benefits, in keeping with the regulations of such plans, for all regular full  
time employees who have completed their probationary period:  
(b) Weekly Indemnity  
The Company will provide a booklet outlining the benefits for the  
information of employees. Employees will receive updated information  
periodically as required by changes in the plan from time to time. Should  
the Company register the plan with E.I. , any rebate would flow to the  
Company.  
In the case of personal illness, insured Weekly Indemnity payments  
commence on the sixth (6th) working day. The Company will pay the  
normal daily rate equal to the weekly indemnity rate divided by five (5) to  
employees absent due to personal illness on the fourth (4th) and fifth (5th)  
working day provided the employee provides proof of his illness  
satisfactory to the Company.  
All employees hired after ratification date, October 26, 2013, will be  
required to Contribute a co-payment of 15% for welfare benefits.  
48  
26.02 (a) An employee who is absent from work due to accident or illness  
may be required to provide proper medical proof satisfactory to the  
Company covering such illness or accident before being allowed to return  
to work and/or in order to qualify for Company sick pay.  
(b) As a condition of his return to work the Company may request a  
physician’s statement, attesting to the employee’s recovery.  
The  
Company will reimburse the employee for the fee charged by the  
physician for the above statement.  
168.  
The last sentence in the second paragraph of Article 26.01(b) provides that the  
employer will pay for the fourth and fifth day of illness if the employee provides sufficient  
proof to satisfy the company. As written, the phrase “proof of his illness satisfactory to  
the Company” only modifies the last sentence and not the first sentence in that  
paragraph, which outlines entitlement to weekly indemnity. This is in accord with the  
employer’s practice. I heard evidence that an employee is required to submit a doctor’s  
note directly to the employer to claim payment for the two days, and it is the employer  
(not Morneau) that assesses the claim.  
169.  
The language in Article 26.02(a) is somewhat different in that it refers to the  
proper medical proof satisfactory to the Company…in order to qualify for Company sick  
pay”. The employer submits that the phrase “proper medical proofrefers to the  
requirement that the medical proof must come from a qualified medical practitioner. I  
agree with this interpretation.  
170.  
The requirement to provide “proper medical proof satisfactory to the Company” is  
a prerequisite for an employee returning to work if the employer requests medical proof.  
49  
It is also the proof required to qualify for company sick pay. The term “company sick  
pay” is, in my view, broad enough to include both sick payments for the fourth and fifth  
day of illness and weekly indemnity. The evidence from Ms. Trinder is that the employer  
pays both benefits as the latter is self-insured.  
171.  
Together they represent the total package of short-term sick pay offered by the  
company. In the end, I accept that the phrase proper medical proofsatisfactory to  
the Company” is the standard applied to all short-term sick benefits, including weekly  
indemnity.  
172.  
In passing, I note that the employer does not rely on Article 26 for its authority to  
request medical proof from seasonal employees and instead relies on the management  
rights provision for this authority. In the absence of language in the collective  
agreement, arbitrators have endorsed the objective reasonableness standard. This is in  
accord with the principle that an employer does not have an inherent right to demand  
that an employee reveal private medical information as discussed in Hamilton Health  
Sciences supra.  
173.  
I now move on to consider whether the phrase proper medical  
proofsatisfactory to the Company” applies a subjective standard as the employer  
submits. Arbitrator Surdykowski interpreted similar wording in Hamilton Health Sciences  
supra, where the hospital’s collective agreement incorporated the language of the 1980  
HOODIP brochure, which reads,  
Proof of your total disability satisfactory to your employer such as a doctor’s  
certificate is required for absences of three days’ duration or over, and is subject  
to a periodic review thereafter.”  
50  
174.  
Arbitrator Surdykowski considered whether the phrase proof satisfactory to the  
employer” was meant to apply a subjective or objective standard of medical proof. In  
paragraph 58 he wrote,  
58 Under the 1980 HOODIP, all that is required to establish “total disability” for  
STD benefit purposes is proof “satisfactory to your employer such as a doctor’s  
certificate”. “Satisfactory to your employer” does not imply either a subjective test  
or broad employer discretion with respect to the proof that can be required. The  
test is one of objective reasonableness. Further, the phrase is modified by “such  
as a doctor’s certificate”, which must be interpreted in light of the significant  
privacy protections legislated for confidential personal medical information.  
Accordingly, this provides an example of what is deemed to be objectively  
reasonable proof for 1980 HOODIP STD purposes: namely, a doctor’s certificate  
or the equivalent, which I am satisfied means a certificate from a medical health  
professional qualified to make the medical assessment attested to. That is, in the  
first instance under the 1980 HOODIP, the employer is not entitled to more than  
a certificate from a qualified medical health professional that states that s/he has  
assessed the employee as being incapable working at her occupation due to  
illness or injury for a specified period, the general nature of the illness or injury,  
that the employee is undergoing treatment (without specifying what it is), and the  
anticipated return to work date. The employer can only obtain additional  
confidential medical information if it has objectively reasonable grounds to doubt  
the accuracy, truth or adequacy of the certificate. There is nothing in the  
legislation or the collective agreement (which includes the 1980 HOODIP) which  
entitles the employer to a diagnosis or recital of symptoms, a medical history, the  
tests or other investigations performed, the treatment plan, or a prognosis other  
than the expected return to work date and identification of any accommodation  
requirements at that time.  
175.  
In the end, he concluded that the phrase “proof satisfactory to the employer”  
imposed an objectively reasonable standard and was subject to the privacy principles  
51  
laid out in that award. Arbitrator Surdykowski is not the only arbitrator who has come to  
this conclusion. In Brant Community Healthcare supra, Arbitrator Harris made a similar  
finding,  
26 As set out above, the doctor’s certificate required under both brochures must  
be “satisfactory to the employer”. I agree with Arbitrator Surdykowski in Hamilton  
Health Sciences v. ONA, at paragraph 58, that that phrase “does not imply either  
a subjective test or a broad employer discretion with respect to the proof that can  
be required. The test is one of objective reasonableness”. Put differently, the  
doctor’s certificate must be of such a nature that the Hospital can objectively  
satisfy itself that the claim is legitimate.  
176.  
As I have stated, the parties can decide what standard of proof is necessary to  
establish entitlement to a benefit. But that is not what the parties did in this case. There  
is nothing in the language of Article 26 to indicate that the parties chose to contract out  
of the presumption of medical privacy which is enshrined in the arbitral case law. The  
parties could have chosen language that expressly described the type of information that  
could be requested on a medical form but chose not to do so. If the employer wished to  
contract out of these privacy principles, it would require much clearer language to  
achieve that result.  
177.  
In Hamilton Health Sciences supra, Arbitrator Surdykowski endorsed the  
proposition that the collective agreement language should construed strictly in favor of  
protecting an employee’s medical privacy,  
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 that an employee must  
52  
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.  
178.  
Even a liberal reading of the language in Article 26 does not support the  
interpretation put forward by the employer.  
179.  
The employer further relies on the language in the benefits booklet, which  
mandates that the employee’s doctor must complete the Attending Physician Form to  
qualify for benefits. This, according to the employer, is a reference to the forms that  
Manulife has been using since 1995. I agree with the employer that this practice is in  
line with the employer’s position. If this were a case involving estoppel, I would have no  
hesitation affirming the employer’s claim. The employer, however, is not raising an  
estoppel argument in this case.  
180.  
I do not think the booklet supports the employer’s interpretation of Article 26 as  
the language is not ambiguous. Standing on its own, the language in the booklet simply  
refers to the use of an Attending Physician Form; it does not list the type of information  
that may be requested on the form.  
181.  
The fact that the benefits booklet stipulates the use of a medical form as part of  
the adjudicative process does not give the employer a carte blanche right to request  
whatever information it deems fit on the form.  
182.  
However, there are some provisions in the booklet that I think are relevant to the  
information collected on the forms. The booklet refers to the employee's obligation to  
remain under a physician's continuing care, and it also refers to recurring disabilities  
53  
separated by two weeks or involving the same illness. I accept that these references in  
the booklet are relevant to some of the information collected on the medical form, which I  
will discuss later in this award.  
183.  
In the end, however, there is nothing in the collective agreement or the benefits  
booklet to suggest the parties agreed to contract out of the medical privacy rights  
recognized in the arbitral case law.  
Past Practice  
184.  
The employer argues that the parties have had a shared understanding  
regarding the type of medical forms used to support entitlement to weekly indemnity  
benefits for thirty years. The medical forms used by previous plan administrators are  
nearly identical to those used by Morneau.  
185.  
Until the filing of this grievance, the union had never challenged the use of these  
forms. The company provided a detailed chart outlining the type of information  
requested on the medical forms used by previous plan administrators dating back to  
1995. Much of the information on the current forms, existed in one way or another on  
the previous medical forms.  
186.  
The union submits that it was not aware of the contents of the medical forms  
used by previous plan administrators and relies on the evidence of Mr. Davenport for  
that purpose. On that point, I accept Mr. Davenport's evidence that he was unaware of  
the contents of the medical forms before the filing of the grievance. When the  
administrator sends out a medical form to an employee, the employee has their doctor  
complete the form. It is then sent back to the plan administrator and may not be seen  
54  
again unless a dispute arises. The union only gets involved at the grievance stage. It is  
not unusual for a union to only request a copy of the medical file once the matter is  
referred to arbitration. Even then, the grievance may resolve before the file is received.  
187.  
It is, therefore, conceivable that a union staff representative may never see a  
copy of the medical forms used by a third-party administrator. In her evidence, Ms.  
Trinder conceded that the company did not always share copies of the new medical  
forms with the union when they moved from one plan administrator to the next.  
188.  
However, it is equally clear from the evidence that many of the union’s stewards  
in the workplace would have been familiar with the forms. The employer put into  
evidence a list of stewards and former stewards who had over the years submitted  
medical forms in support of weekly indemnity claims. Some of the individuals listed had  
held union positions on and off for some time.  
189.  
The employer also reviewed several arbitral decisions between the parties. It  
submits that this is further proof that the union was aware of the medical forms used by  
plan administrators. Some of the awards involve grievances challenging the employer’s  
Attendance Policy. The employer argues the union had every opportunity to challenge  
the policy in these earlier hearings and chose not to, thus forfeiting its right to do so in  
the future.  
190.  
I have reviewed the awards and do not find them particularly helpful. Although  
some of the cases involve the denial of sick pay, there is nothing on the face of those  
decisions to suggest that the union was familiar with the medical forms used by the  
55  
previous plan administrators. In at least two cases, the arbitrator refers to doctor’s notes  
and not medical forms.  
191.  
In the end, I do not see how any of this matters. The employer is not relying on  
this practice to advance an estoppel argument. The grievance was filed in 2017; the  
parties have since concluded two subsequent collective agreements. The application of  
estoppel would have expired some time ago.  
192.  
Instead, the employer submits that this longstanding practice is relevant to the  
interpretation of Article 26 and the shared understanding between the parties regarding  
the type of medical forms the employer could use to assess entitlement to weekly  
indemnity benefits.  
193.  
The hospital in Hamilton Health Sciences supra raised a similar argument before  
Arbitrator Surdykowski, relying on a longstanding practice of using similar medical forms  
over several years. In paragraph 55, the arbitrator provided his thoughts on the  
relevance of this longstanding practice,  
55 But none of that is really significant. The fact that the Union did not complain  
about an EHS form that required similar disclosure or that individual employees  
have given broad consent and access to their confidential medical records in the  
past, with or without the knowledge or participation of the Union is neither here  
nor there. The personal nature of confidential medical information is such that  
permission to access it may be revoked at any time, subject to the consequences  
of doing so. Except where the issue is one of interpretation of collective  
agreement provisions in that respect, the concepts of past practice or estoppel  
do not apply. That is, the fact that an individual employee or bargaining unit  
employees as a group have voluntarily permitted an employer broad access to  
56  
confidential information in the past, or that their union has acquiesced to this,  
does not mean that either the employees or the Union must continue to do so.  
194.  
I agree with Arbitrator Surdykowski that the past practice is not determinative, but  
for different reasons. The past practice is only relevant if there is an ambiguity in the  
language of the collective agreement. I do not believe any ambiguity exists. The  
requirement for employees to provide medical proof satisfactory to the employer is  
common collective agreement language. The employer has put forward no case law to  
support its claim that the language offers a subjective standard and is, therefore,  
insulated from the privacy principles set out in the arbitral case law.  
195.  
I would say that the opposite is true. As I have stated, some of the arbitral  
decisions which apply medical privacy involve collective agreement language similar to  
the language before me.  
Personal Health Information Protection Act  
196.  
The parties dispute the application of PHIPA. The employer suggests that  
arbitrators have misapplied the statute by wrongly assuming that employers and their  
plan administrators are “health information custodians” as defined under the legislation.  
On that point, I note that a similar argument was raised before Arbitrator Etherington in  
Ontario Power Generation supra and rejected,  
116 I should note here that I do not agree with the employer’s argument that  
sections 29 and 30 may not apply to OPG Health Services nurses and physicians  
because they do not meet the definition of ‘health information custodian’ found in  
s. 3 of the Act. In my view this case is more analogous with the situation faced by  
the Divisional Court of Ontario in Hooper v College of Nurses of Ontario (2006),  
81 O.R. (3d) 296 (Ont. Div. Ct.), which held that officials in an employer’s  
57  
occupational health and safety department, when dealing with the collection, use  
and disclosure of an employee’s personal health information, met the definition of  
health information custodians and were subject to the restrictions imposed on  
them. They found that even though the OHS official was not providing medical  
treatment they were providing health care within the meaning of PHIPA because  
they were making observations and assessments for health related purposes in  
attempting to assess the physical and mental condition of the worker to  
determine when she could return to work safely. In my view OPG Health  
Services health care practitioners who are collecting personal health care  
information in order to assess their physical and mental condition for the purpose  
of administering sick leave benefits are in a similar position and meet the  
definition of health information custodian under s. 3 (1) of PHIPA.  
197.  
Arbitrator Etherington concluded that a health practitioner working in the  
company’s health services department qualified as a health information custodian as per  
section 3(1)1 of the Act. A health practitioner could include a doctor or a nurse. The  
Court in Hooper supra came to a similar conclusion finding that the employer’s  
occupational health department was a health information custodian. The employer  
submits that the Court’s interpretation of PHIPA is not binding on me because the  
comments on point are obiter and the facts, in that case, were more nuanced.  
198.  
Other arbitrators have considered the application of Hooper supra. In the  
London Health Sciences supra, Arbitrator Slotnick rejected the hospital’s submission that  
the Court’s finding in Hooper supra did not bind him. The employer, in that case, argued  
that the employer’s occupational health department was not involved in the care or  
treatment of patients and therefore fell under an exception under section 4 of the Act,  
which exempts employee files. In paragraphs 29, 30, and 32, the arbitrator wrote,  
58  
[29] The hospital in the case before me now argues that I am not bound by this  
decision, and in any event, it is distinguishable. It says the hospital’s  
occupational health department is doing nothing to “diagnose, treat or maintain  
an individual's physical or mental condition,” to use the words of the Act’s  
definition of health care. Instead, it is performing tasks such as assessing  
whether employees are entitled to sick pay, or assessing whether and with what  
restrictions disabled employees can return to work. That must mean that the files  
are “maintained primarily for a purpose other than the provision of health care,”  
and therefore fall within the Section 4 (4) exception to the definition of “personal  
health information.”  
[30] While I certainly appreciate the employer’s argument that its occupational  
health files are not kept “primarily” to diagnose, treat or maintain the employee’s  
health – that is mainly the task of the employees’ own health care providers I  
cannot see any principled basis on which to distinguish the Hooper decision from  
the situation before me. The description in the Hooper decision of the role of that  
hospital’s occupational health department and the contents of its files matches  
precisely the kind of evidence that was presented in this case. This is not  
surprising, as occupational health departments at all large employers are dealing  
with the same range of issues including sick pay, accommodation, return to  
work and others that require those departments to gather and  
keep medical information about employees. The court addresses exactly the  
issue that was raised in this hearing, and considered whether the exception in  
Section 4 (4) applied to occupational health files of exactly the sort in evidence  
here. The court concluded that the exception did not apply.  
[32] Furthermore, I believe I am bound by a court decision squarely on point on a  
question of statutory interpretation. As Brown and Beatty, Canadian Labour  
Arbitration, puts it (at paragraph 1:3300), “...where a court shares jurisdiction to  
interpret statutes with arbitrators, prior judicial decisions as to the meaning of  
such legislation or other propositions of applicable law are accepted as binding.”  
In support of that statement the authors cite numerous arbitration awards,  
including Re Toronto Police Services Board and Toronto Police  
Association (2014) 245 L.A.C. (4th) 91 (Kaplan) and Re Cameco Corp. and  
59  
United Steelworkers (2007) 164 L.A.C. (4th) 155 (Surdykowski), where Ontario  
arbitrators considered themselves bound by court decisions interpreting  
statutes.  
199.  
Arbitrator Abramsky came to the same conclusion in Orillia Soldiers’ Memorial  
Hospital supra at paragraph 26,  
26. I also agree with Arbitrator Slotnick, at par. 32, that an arbitrator is “bound by  
the court decision squarely on point on a question of statutory interpretation.”  
Consequently, I am bound by the Court’s interpretation of PHIPA, unless it may  
be distinguished.  
200.  
I have no evidence that Morneau staff who assess the medical claims are health  
practitioners, but if they are, then I see no reason why the Court’s decision in Hooper  
supra is not binding on me. Similarly, I see no reason to depart from the arbitral  
consensus reflected in the above awards.  
201.  
Even if I were to accept that Morneau is not a health information custodian, this  
would still not end the analysis. As the union quite rightly pointed out, section 49(2) of  
the Act provides that “non-health information custodians” have similar limitations,  
including the restriction that they only collect medical information that is “reasonably  
necessary” for its purpose.  
202.  
Section 18 of the Act provides that a health information custodian cannot use,  
collect or disclose medical information without the “knowledgeable consent” of the  
individual. If Morneau is not a health information custodian, the employee’s doctor  
meets the definition as a health care practitioner. The doctor is obliged not to disclose  
information unless their patient has provided knowledgeable consent as defined in that  
60  
section. A medical form that requires the physician to disclose information in violation of  
section 18 is still contrary to the Act.  
203.  
If I am wrong in this interpretation, I believe that my jurisdiction to enforce the  
privacy principles in the case law does not flow exclusively from the legislation. As an  
arbitrator, my authority flows from the collective agreement, and is guided by the  
interpretative principles which have evolved over the years. This includes the  
interpretative principle, which presumes the right to medical privacy.  
As Arbitrator  
Surdykowski stated in Hamilton Health Sciences supra, in the absence of a statutory  
right or collective agreement provision, an employer has no right to compel private  
medical information from an employee.  
204.  
These principles flow not only from the statute but from an arbitrator’s authority to  
interpret and apply the collective agreement. Support for this proposition is found in  
paragraph 111 of the Ontario Power Generation supra case,  
111 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. In this respect a declaration  
along the lines requested by the union is warranted without resort to the union’s  
arguments based on the privacy legislation found in the provincial PHIPA or the  
federal PIPEDA. However, the parties provided significant arguments on the  
relevance and application of the privacy statutes and I will offer some views on  
the application and effect of that legislation, although I do not regard it as  
necessary for the purposes of upholding the grievance.  
61  
205.  
I agree and adopt Arbitrator Etherington’s comments on this point. Even if the  
provisions of PHIPA do not apply (a proposition I do not accept), my authority to decide  
this issue is not impeded by that fact.  
Single Purpose  
206.  
The union submits that the medical forms should serve a single purpose. The  
forms are currently used for multiple purposes to: assess entitlement to weekly  
indemnity benefits, to substantiate unpaid absences for seasonal employees, and to  
determine whether an employee can return to modified duties. The union cites the  
principle that a medical form should only collect medical information that is reasonably  
necessary. A form used to collect information for multiple purposes offends this  
principle. It reminds me that the original intent of the form was to collect information in  
support of weekly indemnity benefits. Employees who are not entitled to weekly  
indemnity (namely seasonal employees) should not be required to complete the same  
form.  
207.  
Moreover, there is no reason to ask questions about an employee’s medical  
restrictions if they are not ready to return to work. The union relies on the decision of  
Arbitrator Devlin in Toronto East General Hospital supra in support of this position. In  
paragraph 63, the arbitrator wrote,  
63 As the Request for Medical Information forms are used for purposes of  
accommodation, I find that the employee’s physician should be asked at the  
outset whether the employee will be returning to regular duties or returning to  
work with restrictions. Only if the employee is returning to work with restrictions is  
it appropriate to request information regarding the nature of the restrictions. In  
reaching this conclusion, I recognize that the Hospital, rather than the  
employee’s physician, is familiar with the work available and the way in which  
62  
duties or hours of work may be modified to accommodate the employee.  
Nevertheless, in my view, it is not appropriate to begin by asking for information  
about an employee’s restrictions without any indication as to whether the  
employee will be returning to work on modified duties. In this regard, I note that in  
some cases, Request for Medical Information forms are sent to employees where  
no return to work date is specified on the Attending Physician’s Statement. In  
these circumstances, it is not clear that the employee’s physician would have  
completed Part C of the Statement, which deals with physical and cognitive  
limitations. Moreover, if the Hospital has a reasonable basis to question the  
physician’s opinion regarding the employee’s inability to return to work, it may  
well be appropriate for the Hospital to seek additional medical information. That,  
however, is a matter to be decided in the circumstances of the individual case.  
Accordingly, the Hospital is directed to amend Exhibit 12 to request information  
regarding the employee’s return to work status at the outset and to advise the  
employee’s physician to complete the portion of the form dealing with restrictions  
only if the employee is returning to work or has returned to work on modified  
duties or with modified hours.  
208.  
I do not read Arbitrator Devlin’s decision prohibiting an employer from requesting  
medical restrictions on a medical form used to assess entitlement to sick pay. The  
parties should not assume that just because an employee is off work, they cannot return  
to modified duties in some capacity. The evidence is that Morneau sends the forms out  
after the sixth day of absence. It is not unreasonable for an employer to canvas the  
possibility of returning to work on modified duties after that length of time.  
209.  
If the employee has medical restrictions, the employer (or Morneau) can assess  
The duty to  
whether they can accommodate them in the workplace or not.  
accommodate extends to both permanent and temporary disabilities. An employee has  
a duty to cooperate in the accommodation process by providing information about their  
medical restrictions.  
63  
210.  
I appreciate that employees should not feel pressured to return to work. But this  
can be remedied by including an instruction to the doctor only to fill out the restrictions if  
the employee can return to modified duties. If one would suffice, it makes little sense to  
have the employee’s doctor fill out two different forms. The requirement to fill out  
multiple forms would only increase the costs to the employee. It will also result in delays  
in getting an employee back to work.  
Seasonal Employees  
211.  
The union objects to the use of the forms in their entirety for seasonal  
employees. I reject this submission for the following reasons. The employer has the  
right to substantiate an employee’s absence regardless of whether they are entitled to  
sick pay or not. Arbitrator Surdykowski recognized this in Hamilton Health Sciences  
supra at paragraph 24,  
Also as a general matter, even if there are no paid benefits available, or the  
employee elects to forgo them, the employer is entitled to notice of the fact and  
expected duration of an absence for the legitimate business purposes of work  
force management and absenteeism control purposes. Both the employee and  
the employer have a legitimate interest in and an obligation to facilitate as early a  
return to work as possible, with accommodation as appropriate where reasonably  
available. The employer also has a legitimate interest in investigating suspicious  
absences and information provided by an employee in that respect.  
212.  
An employer is entitled to request medical information to confirm an employee’s  
absence even if that absence is unpaid. Again the medical proof necessary to support a  
brief illness is minimal and is generally satisfied with a doctor’s note.  
64  
213.  
The employer also has the right to manage absenteeism in the workplace,  
including the right to canvas whether an employee who is off work due to illness can  
return to modified duties. If an employee has been off work for six working days, it is  
reasonable for the employer to inquire about returning to work on modified duties.  
214.  
Finally, the employer has indicated that Morneau does not use the medical form  
to confirm every absence for seasonal employees but only those of longer duration or  
questionable absences. If the union suggests that this is not the case, I did not hear any  
evidence to show otherwise. I see no reason why the employer cannot continue to use  
the medical form for seasonal employees for the reasons described above.  
Attending Physician Form  
215.  
I now turn to the general Attending Physician Form and will begin by reviewing  
the consent portion on the form, which reads,  
Authorization  
I authorize the release of medical information, including consultation reports,  
hospital  
records  
and  
test  
results,  
pertaining  
to  
my  
present  
impairment/illness/disability to my employer’s health service/consultants, as  
required. All information will be treated as Medically Confidential. I authorize my  
employer, and/or my employer’s health service/consultant to share information  
with my health care provider.  
216.  
The union argues that this consent is inappropriate as it applies a basket  
approachthat permits Morneau to request files from multiple health providers. It also  
allows Morneau to communicate with the employee’s treating physician at any time. The  
union asserts that if Morneau wishes to follow up with the employee’s doctor or contact  
65  
other health practitioners, the administrator must obtain fresh consent from the  
employee for each new contact.  
217.  
According to the union, the consent also violates section 18 of PHIPA, which  
requires the patient’s authorization to be knowledgeable. The consent section must  
explain the purpose of collecting the information. An employee cannot provide  
prospective consent to release medical information in the future and must be made  
aware of the information disclosed.  
218.  
The Union relies on several arbitral decisions that challenge a “basket approach”  
to requesting the release of medical information, including Hamilton Health Sciences  
supra and SaskTel supra.  
In the Hamilton Health Sciences supra, Arbitrator  
Surdykowski rejected the consent used by the hospital’s plan administrator. In  
paragraph 35, he wrote,  
35 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.  
66  
219.  
In SaskTel supra, Arbitrator Pelton took a similar approach in revising the  
consent section on a medical form,  
141. The statements under the headings “Authorization Request” and “Medical  
Information” on page 1 of the form must be amended to make it clear that Great-  
West Life is not entitled to contact the Employee’s Doctor directly. Similarly, the  
Authorization on page 3 of the form must be revised to ensure that Great-West  
Life does not exchange an Employee’s personal information with third parties.  
This revision will, in part, bring the form into line with Great-West Life’s practice  
as Ms. Apperley indicated that Great-West Life does not contact an Employee’s  
Doctor directly and Ms. Warner stated that Great-West Life does not provide  
SaskTel with the personal information of Employees, other than notifying it when  
an Employee has been approved for Extended Sick Leave benefits.  
220.  
The employer, for its part, submits that there is nothing wrong with consent or  
authorization, which allows the plan administrator to seek clarification from the  
employee’s doctor or request relevant information from other treating physicians.