IN THE MATTER OF AN ARBITRATION PURSUANT TO  
THE LABOUR RELATIONS ACT, 1995  
Between:  
ABBEYLAWN MANOR LIVING INC.  
(“the Employer”)  
and  
SEVICE EMPLOYEES INTERNATIONAL UNION,  
LOCAL 1 CANADA  
(“the Union”)  
RE: GRIEVANCES OF TD  
THE EMPLOYER’S MOTION TO DISMISS  
ARBITRATOR:  
Peter Chauvin  
APPEARANCES FOR THE EMPLOYER:  
Jamie VanWiechen  
Erin Payne  
Counsel  
Counsel  
David Stein  
Jessica White  
Joy Frani  
Lou LaFrance  
Anita Mensah  
Delores Thwaites  
Executive Director  
Acting Director of Care  
Assistant Care Co-ordinator  
Health and Safety  
Registered Practical Nurse  
Personal Support Worker  
APPEARANCES FOR THE UNION:  
Robert M. Church  
Maria DaSilva  
TD  
Counsel  
Union Representative  
Grievor  
Mediations and arbitrations conducted on December 20, 2019, November 9, 2020,  
May 21, June 4, 9 and 10, July 27, 2021 and April 21 and May 5 and 9, 2022, and June 6, 2022.  
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AWARD  
[1] This Award pertains to the Employer's motion to dismiss on the grounds that the Grievor (referred  
to herein as “TD”) has twice clearly stated that she will not comply with the Production Order that I have  
issued requiring her to produce certain medical records. The background to this matter is relatively long  
and quite complex. A very brief summary of the background is as follows.  
The Grievances and the Complaints  
[2] The parties have appointed me as the sole Arbitrator for the following six Grievances (referred to as  
Grievance Nos. 1 to 6) that have been filed regarding the Grievor:  
1. No. 100-233-837 - dated May 29, 2019 – Written warning  
2. No. 100-233-838 - dated May 29, 2019 – Three-day suspension  
3. No. 100-234-489 - dated Aug. 1, 2019 – Unpaid administrative leave  
4. No. 100-236-086 - dated Feb. 12, 2020 – Harassment by co-workers  
5. No. 100-236-087 - dated Feb. 12, 2020 – Harassment by management  
6. No. 100-236-196 - Feb. 26, 20 – Uniform pay, vacation pay, credit check letter and ROE  
[3] In addition to these six Grievances, between March 7 and July 19, 2019 the Grievor also filed over  
30 written Complaints (“the Complaints”) against several of her co-workers, members of management, and  
her Union Representatives, that generally claim that: she is being bullied and harassed by them; they are  
not performing their jobs properly; they are interfering with her ability to perform her work, and; she is  
having great difficulty working with those people.  
[4] A summary of the allegations in some of the Grievor’s Grievances and Complaints is as follows  
(unless stated otherwise, all dates are in 2019):  
[5]  
[6]  
On August 28, 2018 the Grievor commenced employment as a Personal Support Worker.  
On March 7, 2019, the Grievor was involved in an incident with a resident, that resulted in a  
resident complaint. Following an investigation, the Grievor admitted that she had communicated in an  
unacceptable and aggressive manner to the resident. The Employer gave the Grievor a written warning  
regarding her inappropriate interaction with the resident. The Grievor filed Grievance No. 1 regarding this.  
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[7]  
On March 8 the Grievor was observed distressed and rocking in a chair and hyperventilating,  
necessitating that she leave work two hours early.  
[8]  
On March 14 the Grievor attended an Organization Meeting. She became anxious, upset and  
disruptive, and had to leave her shift early.  
[9]  
On March 15 the Employer placed the Grievor on a medical leave of absence and required that  
the Grievor have her treating physician complete a Functional Abilities Form (FAF) that the Employer  
provided to the Grievor. The FAF states that [bolding added]:  
The Grievor recently exhibited a number of behaviors and actions that are a serious cause  
for concern in light of our significant obligations under the Retirement Homes Act, 2010  
(RHA) to ensure resident care. The behaviors and actions include the following:  
Unprofessional and unprovoked conduct on March 7 in connection with the content and  
manner of speaking with a resident;  
On March 8 the Grievor was observed rocking in her chair and hyperventilating,  
necessitating her leaving her shift [2 hours early];  
And on March 14 in connection with attendance at an Organization Meeting the Grievor left  
the floor at 11 AM as a result of her anxious and uncontrolled state which led to her leaving  
her shift [early].  
Further to the incidents listed above, it has been brought to our attention by a fellow co-worker  
of the Grievor, that the Grievor disclosed to her that she suffers from a medical condition and  
requires medication that we understand she is not taking as prescribed.  
In light of these circumstances, we are concerned for our expansive obligations under the  
HRA, the level of care our vulnerable residents are entitled to, as well as our concern for the  
Grievor’s health and well-being, we have placed the Grievor on a paid medical leave of  
absence effective March 15 to permit her to secure appropriate medical attention.  
Accordingly, we are seeking particulars from you regarding her ability to safely attend at  
work and perform the essential duties of her job, particularly in light of the fact that she is  
responsible for caring for a vulnerable population, as well as any accommodation she may  
require. Please note that until we receive this information, we cannot permit her to return to work.  
[10]  
Regarding this FAF, the Employer only received a brief response from a family physician that  
only stated that the Grievor was able to return to work on April 8, 2019. The family physician did not  
provide any other medical information.  
[11]  
On April 8 the Grievor returned to work. The Grievor was absent for over three weeks, from  
March 15 to April 8.  
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[12]  
On April 19 the Employer alleges that the Grievor: left the floor she was working on unattended  
without permission and without advising anyone; spoke to the charge person in a “clearly aggressive and  
loud” manner; used her cell phone to take photographs of resident care information sheets, and; texted  
excessively so as to interfere with her ability to do her work. The Employer gave the Grievor a final written  
warning and a three-day suspension for her alleged continuing failure to comply with the Employer’s  
policies. The Grievor filed Grievance No. 2.  
[13]  
On May 17 the Grievor commenced a second medical leave of absence. The Grievor was absent  
for three weeks, from May 17 June 7.  
[14]  
From July 11 to 14 the Grievor requested a third medical leave of absence. Regarding these three  
medical leaves of absence, the Grievor generally claimed that she could not work, due to the alleged  
“bullying and harassment” and improper work performance by several of her co-workers and members of  
management. Also during the four-month period from March 7 to July 11, the Grievor left work early and  
as well took days off on a number of occasion.  
[15]  
On July 12 the Employer wrote to the Grievor regarding this request for a third medical leave of  
absence from July 11 to 14, and also regarding her behaviour. The Employer informed the Grievor that  
prior to returning to work she would have to provide a medical certificate stating that she is “physically  
and mentally fit to work, and free of communicable diseases”.  
[16]  
On July 15 the Grievor provided a note from a family physician that only stated that the Grievor  
“Is fit to work and is free of communicable diseases”. The note did not specifically address the Grievor’s  
“physical and mental” fitness to work. The Grievor returned to work on July 15.  
[17] By July 15 the Grievor had filed over 30 written Complaints against several of her co-workers  
and members of management, claiming that she was being bullied and harassed by them, that they are not  
performing their jobs properly, and that she was having great difficulty working with them.  
[18] On July 16 the Employer assigned the Grievor to work in the laundry room, hoping that the laundry  
room would provide less opportunity for any conflicts between the Grievor and her co-workers. However,  
there were further difficulties with the Grievor’s work with her co-workers and members of management,  
and with the performance of her work.  
[19]  
On July 19 the Employer wrote to the Grievor, stating that [bolded added]:  
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In light of current circumstances where you appear to be taking issue with many co-workers  
and management personnel as well as your duties and responsibilities, we are left with no  
other option but to place you on an administrative unpaid leave effective immediately. Please  
do not report for work tomorrow (July 20) or thereafter until we have determined an  
appropriate course of action. We will be in touch with you in due course.  
We also require you to cease sending texts and emails to co-workers and management  
personnel employees while you were on this administrative leave.  
[20] The Grievor has not worked since July 19. Grievance No. 3 was filed on August 1.  
[21] On February 12, 2020 the Grievor filed Grievances Nos. 4 and 5 which claim that her co-workers  
and members of management had harassed her.  
[22] On February 26, 2020 the Grievor filed Grievance No. 6, claiming that the Employer had failed to:  
pay uniform allowance and vacation pay; provide a credit check letter, and; provide an amended ROE  
(referred to as “the Uniform Allowance Grievance”).  
The Hearing on the Merits  
[23]  
So far, there have been two days of mediation and six arbitration hearing days regarding the merits  
of the Grievances. During the six hearing days, the Employer has called four witnesses, and the Union has  
called the Grievor. The Grievor’s testimony has spanned over four hearing days.  
[24]  
To date, the Parties have focused on Grievances Nos. 1, 2 and 6. However, the other Grievances  
have also been entered into evidence and have been referred to throughout the six hearing days. The Parties  
agree that the same or additional witnesses can be called when the Parties focus on Grievances Nos. 3, 4  
and 5, over any future hearing days. Several more hearing days will be required, if this matter proceeds  
further. One final Award would be issued only after all of the Grievances have been fully arbitrated.  
[25]  
In addition to the Grievances, the Grievor’s numerous Complaints have also been considered  
throughout the six hearing days that have been conducted so far, because they are intertwined with and are  
relevant to the Grievances. All of the witnesses, and in particular the Grievor, have testified in detail  
regarding the Grievor’s Complaints, and how they pertain to the Grievances. On many occasions, the  
Grievor has read her Complaints verbatim in support of her testimony and her positions.  
[26]  
The Complaints are numerous, and the allegations the Grievor makes in them are lengthy. It is not  
necessary to provide a detailed account of all of them. Rather, the following summary is sufficient to assess  
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the relevance of the Complaints to the motion to dismiss. The following forty of the Grievor’s Complaints  
can be grouped as follows [bolding added]:  
a)  
b)  
Three complaints against Kimberlee Ramsunder (a co-worker) regarding disputes over linen  
changes and an issue with a resident in Oct, Nov. and Dec. 2018.  
Four complaints against Jessica White (a member of management) and Kim Jimmo-Shields  
(the Executive Director) regarding adjusting the Grievor’s schedule and a meeting held at the  
end of the Grievor’s shift on March 7, 2019.  
c)  
d)  
Five complaints against Jessica White and Kim Jimmo-Shields regarding a meeting held on  
March 14 to discuss the events of March 7, 2019.  
Ten complaints, from March to June, 2019, against Delores Twaites, Evette, Shereen Davis,  
Anita and Kimberlee Ramsunder (all are co-workers) and Kim Jimmo-Shields, Joy Frani (a  
member of management) and David Stein (the current Executive Director) regarding arguments  
between the Grievor and these employees, and Ms. Jimmo-Shields’, Ms. Frani’s and Mr.  
Stein’s failure to respond to her Complaint, to her satisfaction. The Grievor stated that she left  
work to avoid what she described as “bullying and harassment” by her co-workers.  
e)  
f)  
Two complaints against Jessica White and Kim Jimmo-Shields for their failure to act in a  
timely manner to one of her Complaints in March 12, 2019.  
Two complaints against Jessica White because Ms. White requested that meetings be held with  
another Manager present, and because Ms. White posted a Memo in a public place on March  
14, 2019. The Grievor objected to the posting.  
g)  
h)  
i)  
Eight complaints against Jessica White and Kim Jimmo-Shields regarding their request for  
medical information pertaining to the Grievor’s physical and mental fitness to work.  
Two complaints against David Stein and Cindy Jones (a member of management) for placing  
the Grievor on modified duties in July, 2019.  
Four complaints against employees of Abbeylawn while acting in their role as Union  
Representatives and attempting to represent the Grievor throughout 2019.  
[27]  
The Grievor alleged, in her numerous Complaints, that the “bullying and harassment” of her, by  
her co-workers and management, came in many forms, including: disrespectful, aggressive, and  
intimidating behaviour towards her; setting unrealistic goals; implementing a new floater routine; forcing  
her to stay late without pay; withholding information; forcing her to attend unpaid meetings; belittling,  
minimizing, and ignoring her concerns; lying to her; changing meeting topics; making inappropriate  
presumptions about her; targeting her in a public memo; forcing her to present false statements; isolating  
her; interfering with her duties; publicly complaining about her; permitting gossip; forcible confinement;  
scolding her; placing her on modified duties without her request; reprisal; discrimination; and failing to  
prevent the bullying and harassment of her.  
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[28]  
In considering the motion to dismiss, it is important to be aware of the allegations that have been  
made by the Grievor and the Employer regarding the Grievances and the Complaints. However, it is also  
important to be aware that these allegations have not yet been proven. Although six hearing days have been  
conducted so far, the hearing is still far from over. However, these allegations in the Grievances and the  
Complaints are still relevant to the issue of whether it is appropriate to dismiss the Grievances, due to the  
Grievor’s decision to not comply with the Production Order, because these allegations identify the facts  
and issues that are relevant in this case, and the facts and issues that the Employer must address.  
[29] In view of the Grievor’s allegations in the Grievances and her Complaints, the Grievor’s mental  
disposition has been an issue in the six arbitration hearing days so far. Generally, one issue has been whether  
the Grievor’s allegations are credible and reasonable, or whether the testimony of the people the Grievor is  
accusing of engaging in wrongdoing should instead be accepted. An issue that could be relevant to that is  
whether the Grievor has any mental disposition that could cause her perception of a situation, or her reaction  
to it, to be less than reasonable.  
[30]  
As such, questions have been asked regarding the Grievor’s perception of the situations she refers  
to in her Grievances and her Complaints, and her reaction to those situations that she is complaining of.  
The Employer has asked the Grievor whether she has any mental or other condition that would have caused  
her to perceive and react to those situations so strongly. Generally, the Grievor has testified that: her primary  
medical condition is psoriasis; she has some anxiety; she has some migraines that are triggered by stress;  
she had a panic attack on March 15, 2019; she disagreed with the statement in the Request for Medical  
Information that she “requires” medication; she has an ongoing daily prescription for marijuana; she takes  
no other prescriptions; she was not healthy enough to work for over six months after she left the Employer  
on July 19, 2019, and; she is immune compromised so she could not work during COVID. The Grievor did  
not disclose anything else.  
[31]  
However, a week prior the sixth hearing date on April 21, 2022, the Union provided a number of  
new documents to the Employer. These new documents included a document in which only three lines of  
the document can be seen. The rest of the document had been covered in paper, and then photocopied, so  
that the rest of the document cannot be seen (“the redaction”). The three lines that can be seen state:  
Diagnosis  
a. DMS-5 CODE:: F34.1 - Persistent depressive disorder (dysthymia)  
b. DMS-5 CODE:: F41.1 - Generalized anxiety disorder (Cluster B Personality traits)  
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[32] The Employer expressed concern that this medical document, that appeared to be highly relevant,  
had only been produced a week before the April 21, 2022 hearing date. The Employer noted that in October  
2020, before the arbitration commenced, it made a request for all relevant documents, and that both the  
Union and the Employer had produced and entered into evidence numerous documents throughout the  
previous five days of arbitration. The Employer questioned why such an important document had not been  
produced earlier, especially in view of its earlier production request, and the questions that had been asked  
throughout the earlier five days of arbitration regarding the Grievor’s mental disposition, and the answers  
that the Grievor has given.  
[33] In response to this, Union counsel stated that this document had only very recently been brought to  
his attention, and that he provided it to the Employer immediately. The Employer accepted that assertion  
as being truthful, and has not submitted that the Union or the Union’s counsel has acted in any way that  
was improper at any time throughout this arbitration.  
[34] However, the Employer did object to the fact that the document had been so severely redacted, and  
noted that due to this it was impossible to ascertain the full meaning of the document, and its full  
significance to this proceeding. In view of this, the Employer requested a Production Order requiring that  
the Grievor produce her medical records that are relevant to the two diagnoses of Persistent Depressive  
Disorder (Dysthymia) and Generalized Anxiety Disorder (Cluster B Personality Traits) (“the requested  
medical records”) that are set out in the document. The Union objected to this Production Order, so the  
Employer brought a motion for a Production Order.  
[35] At the April 21, 2022 hearing, I informed the Grievor that failure to comply with a Production Order  
could result in the dismissal of her Grievances.  
[36]  
On May 2, 2022 I repeated this warning in an email to the Union, which the Grievor was given.  
The Production Order  
[37] The Employer’s motion for a Production Order was heard on May 5, 2022, which was the seventh  
hearing day. On May 6, 2022 I issued an Award granting the Employer’s requested Production Order, which  
is reported at 2022 48095 (ON LA) (“the Production Order Award”). I will now briefly review the  
key aspects of the Production Order hearing and Award.  
[38]  
The Employer presented excerpts from the DSM-5 Psychiatric Manual for the diagnosis of  
Persistent Depressive Disorder (Dysthymia) and noted that this diagnosis causes poor concentration or  
8
difficulty in making decisions and feelings of hopelessness that can cause “clinically significant distress or  
impairment in important areas of functioning”.  
[39]  
The Employer also presented excerpts from the DSM-5 Psychiatric Manual for the diagnosis of  
Generalized Anxiety Disorder (Cluster B Personality Traits) and noted that this diagnosis manifests with  
excessive anxiety and worry in which the individual finds it difficult to control the worry and experiences  
feeling: restless, keyed up or on edge; difficulty concentrating or mind going blank, and; irritability. The  
DSM-5 also states that [bolding added]:  
The anxiety, worry or physical symptoms cause clinically significant distress or impairment  
in social, occupational or other important areas of functioning.  
[40]  
The Employer also provided an article from Saint Joseph's Healthcare Hamilton regarding  
Generalized Anxiety Disorder (“GAD”) that states that Generalized Anxiety Disorder is characterized by  
chronic and excessive worry about a number of different topics that feels uncontrollable and interferes with  
a person's day-to-day life , including having difficulty working, socializing and enjoying themselves, and  
making it difficult for the individual to perform tasks at work and engage in interpersonal relationships.  
The article also states that individuals with Generalized Anxiety Disorder pay more attention to signs of  
potential threat than others do, and notice unhappy or critical facial expressions on other people more than  
they notice neutral facial expressions, and interpret ambiguous situations as being dangerous, and thereby  
overestimate the actual degree of threat or rejection, thus making them feel that there is much more to worry  
about than there is in reality.  
[41]  
The Employer submitted that these predispositions are highly relevant to assessing the Grievor’s  
Grievances and Complaints, which primarily pertain to interpersonal conflicts with co-workers and  
management. The Employer submitted that the requested medical records are relevant and required to  
determine whether the Grievor has in fact been diagnosed with these diagnoses, which the Grievor has  
denied during the six hearing days so far.  
[42] The Employer summarized that the requested medical records are highly relevant to this arbitration:  
(1) because a central issue is whether the Grievor’s mental disposition contributed to her conduct at work,  
and is therefore relevant to the merits of her more than 30 Complaints against her co-workers and members  
of management, and the six Grievances she has filed, and; (2) because the Grievor has testified that she did  
not have any such mental disposition. In view of this, the Employer submitted that it requires the requested  
medical records so that it can properly assess these issues, cross-examine the Grievor, and in all other ways  
9
prepare its defence to the six Grievances. The Employer submitted that it would be unfair, and a denial of  
natural justice, to preclude the Employer from obtaining the requested medical records.  
[43]  
The Union did not dispute that the requested medical records are relevant to the matter. However,  
the Union submitted that the requested medical records should still not be provided to the Employer: (1)  
because there are two WSIB forms in evidence that state that the Grievor experiences anxiety that gets  
worse under stressful conditions at work, and in view of this the Grievor’s mental disposition is not a new  
issue and does not require the production of the Grievor’s medical records, and; (2) because the Grievor’s  
privacy interests in not disclosing the medical records to the Employer outweigh the Employer’s interests  
in obtaining the medical records. The Union also submitted that should I rule that the medical records must  
be produced, I should place conditions upon the Employer's use of the medical records, to ensure that the  
Grievor’s privacy is protected to the greatest extent possible.  
[44]  
I ruled that the requested medical records are relevant to: (1) the Grievor’s conduct at work; (2) the  
merits of the Grievor’s more than 30 Complaints and her six Grievances against her co-workers, members  
of management, and Union representatives; (3) the Employer’s decision on July 12, 2019 to inform the  
Grievor that prior to returning to work she would have to provide a medical certificate stating that she is  
physically and mentally fit to work, and; (4) to the Employer’s decision on July 19, 2019 to place the  
Grievor on an unpaid administrative leave.  
[45] I also ruled that in view of the Grievor’s testimony that she did not have any mental disposition that  
interfered with her ability to work and to interact with her co-workers and members of management, the  
Employer requires the requested medical records so that it can properly assess those issues, cross-examine  
the Grievor, and in all other ways prepare its defence to the six Grievances. I ruled that the two WSIB forms  
are insufficient to change this, and do not preclude the production of the medical records.  
[46] I also ruled that the Grievor’s privacy interests in not disclosing the requested medical records do not  
outweigh the Employer’s interests in obtaining the medical records. Ultimately, I ruled that it would be  
unfair, and a denial of natural justice, to preclude the Employer from obtaining the requested medical  
records, and that it is essential that the arbitration be conducted in a manner that is fair and just to all of the  
Grievor, the Union and the Employer.  
[47]  
As such, I Ordered the Grievor to, by May 10, 2022: (1) produce to the Union specified medical  
records that are in her possession, and; (2) sign a consent letter directing specified medical professionals  
to provide to the Union specified medical records.  
10  
[48] Finally, I agreed with the Union that to ensure that the Grievor’s privacy is protected to the greatest  
extent possible, conditions would be placed upon the Employer's use of the medical records, and I made  
the following Orders:  
1. The Grievor must produce to the Union, by May 10, 2022, all of the medical records in her  
possession, dated from January 1, 2018 to present, that are relevant to the two diagnoses of  
“persistent depressive disorder (dysthymia)” and “generalized anxiety disorder (Cluster B  
Personality traits)” (“the two diagnoses”).  
2. The Union must prepare, and the Grievor must sign, by May 10, 2022, a consent letter directing  
all of the medical professionals who have in any way provided her with services that are relevant  
to the two diagnoses, to provide to the Union, as soon as possible, all of their medical records, dated  
from January 1, 2018 to present, that are in any way relevant to the two diagnoses.  
3. Upon receiving those medical records, the Union can redact whatever information in the medical  
records it considers to be not relevant to this arbitration, and must provide those redacted documents  
to the Employer. If the Employer has any disputes regarding the redactions, the Employer and the  
Union must attempt to resolve all such differences. If the Union and the Employer cannot resolve  
all such differences, those differences can be put to me for resolution.  
4. To protect the privacy of the Grievor regarding the medical records, the following procedures  
must be followed:  
a) The Employer's legal counsel must maintain custody of the medical records and must  
ensure that they remain confidential.  
b) The Employer's legal counsel can disclose the medical records only for the purpose of  
preparing for the arbitration, and only to persons who must review the medical records to  
provide instructions to counsel or prepare for this arbitration.  
c) Any person who views the medical records must keep them confidential.  
d) The medical records can be used only for the purposes of this arbitration.  
e) No copies can be made of the medical records, except for the purposes of this arbitration.  
f) No copies of the medical records can be circulated to third parties, except as is necessary  
for the conduct of this arbitration, and once that purpose is completed, the copies must be  
retrieved from third parties.  
g) The medical records must be destroyed at the conclusion of this arbitration.  
The Case Management Award  
[49]  
As stated above, I Ordered the Grievor to, by May 10, 2022, produce to the Union specified medical  
records in her possession, and to sign a consent letter directing medical professionals to provide to the  
Union specified medical records. I also set out a procedure for the redaction of those medical records, and  
conditions on how the Employer could use those records.  
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[50]  
However, on May 9, 2022 Union counsel informed me and the Employer that he had provided my  
Production Order to the Grievor, and the Grievor had stated that [bolding added]:  
The Grievor has confirmed to [the Union] and myself that she will not be providing any  
documents set out in the Award, and will not be signing a consent …  
[51]  
In view of the Grievor’s stated decision to not comply with the Production Order, the Employer  
stated that it will be bringing a motion requesting that the Grievances be dismissed, and requested an  
immediate Case Conference to address how this motion will proceed. That Case Conference was held on  
May 10, 2022, at which I ruled that: (1) the hearing dates scheduled for May 12 and 13, 2022 were cancelled;  
(2) the motion to dismiss will be heard on June 6, 2022, and if necessary, on June 7, 2022 as well, and; (3)  
the Parties must file written Factums regarding the motion.  
[52]  
I incorporated these rulings into a Case Management Award dated May 10, 2022 that is reported at  
2022 47960 (ON CA) (“the Case Management Award”). In that Award, that has been provided to  
the Grievor, I stated that:  
1. I informed the Grievor at the April 21, 2022 hearing that failure to comply with a Production  
Order could result in the dismissal of her Grievances;  
2. I repeated this warning in an email to the Union dated May 2, 2022, which the Union has  
shared with the Grievor, and;  
3. I again warned the Grievor, in my May 10, 2022 Case Management Award, that should she  
fail to comply with the Production Order set out in my May 6, 2022 Production Award, this  
could result in the dismissal of her Grievances.  
The Hearing for the Employer’s Motion to Dismiss  
[53]  
The Employer’s Motion to Dismiss was held on June 6, 2022. During the hearing, I asked the Union  
whether the Grievor had changed her position that “she will not be providing any documents set out in the  
Award, and will not be signing a consent”, and instead would now comply with the Production Order. The  
Union caucused privately with the Grievor. When they all returned, the Union informed me that the Grievor  
had not changed her position and would still not be complying with the Production Order.  
[54]  
Also, I later asked Union counsel whether, if I find that the Grievances could be dismissed due to  
the Grievor’s failure to comply with the Production Order, whether the Grievor will be requesting that she  
be granted “one last chance” to reconsider her position, and to decide to comply with the Production Order,  
12  
before I actually dismiss the Grievances. Again, the Union caucused privately with the Grievor. When they  
all returned, Union counsel informed me that the Grievor is not making such a request for “one last chance”  
to reconsider her position, but rather she had made a final decision to not comply with the Production Order.  
THE EMPLOYER’S SUBMISSIONS  
[55]  
Regarding the motion to dismiss, the Employer noted that an Arbitrator has the authority to issue a  
production order, and to dismiss a grievance where a party refuses to comply with a production order. The  
only issue, the Employer submitted, is whether I should exercise that authority in this case.  
[56]  
In this regard, the Employer relied upon: National-Standard Co. of Canada Ltd. v. CAW, Local  
1917, 1994 CarswellOnt 1248 (Palmer) (National-Standard”); Budget Car Rentals Toronto Ltd. v.  
U.F.C.W., Local 175, 2000 50165 (ON LA) (Davie) (“Budget Car Rentals”); Rio Tinto Alcan  
Primary Metal v. CAW-Canada, Local 2301 (J. Steeves), 2011 CarswellBC 2534, (“Rio Tinto”), and;  
Baycrest Centre For Geriatric Care and Ontario Nurses’ Association, 2021 39447 (ON LA)  
(Geldof) (“Baycrest”). The Employer submitted that the following principles are established in these cases:  
1. The grievance and arbitration process was established to settle employment disputes in an  
expeditious and inexpensive manner.  
2. The grievor must comply with lawful orders of the arbitrator, such as a production order.  
3. If a grievor fails to comply with such a lawful order of the arbitrator, the grievance can be dismissed.  
4. An arbitrator should not lightly dismiss a grievance for this reason. However, where the grievor’s  
failure to comply amounts to an abuse of the arbitration process, or prejudices the employer, the  
grievance should be dismissed.  
[57]  
The Employer noted that in my Production Order I found that the requested medical records were  
relevant to the Grievor’s conduct at work, to the merits of her numerous Complaints and Grievances, and  
to the Employer’s decision to place the Grievor on an unpaid administrative leave.  
[58]  
The Employer also noted that I as well found that because the Grievor had testified that she did not  
have any mental disposition that would affect her ability to work, the Employer requires the requested  
medical records so that it can properly assess this issue, cross-examine the Grievor, and in all other ways  
prepare for this matter, and that it would be unfair, prejudicial and a denial of natural justice, to preclude  
the Employer from obtaining the requested medical records.  
13  
[59]  
The Employer submitted that the DMS-5 establishes that if the Grievor experiences Persistent  
Depressive Disorder (Dysthymia) and Generalized Anxiety Disorder, this could have very much affected  
her ability to work, and her relationships with residents, co-workers and members of management, because  
these diagnoses cause irritability and feeling keyed up or on edge, and impair functioning at work, and  
could have impaired her relationships with those persons, and could have caused her perception of her  
interaction with those persons to be distorted.  
[60]  
As such, the Employer submitted the Grievor’s decision to not comply with the Production Order  
prevents the Employer from knowing: whether the Grievor has been diagnosed with those diagnoses;  
whether she was following any recommended treatment plan; whether she should have disclosed these  
diagnoses to the Employer, and; the effect that these diagnoses had upon her behavior, her perception of  
and reaction to interactions with people at work, and her filing of the six Grievances and her numerous  
Complaints. The Employer submitted that all of this is fundamentally relevant and crucially important, and  
that the Grievances must be dismissed due to the Grievor’s refusal to comply with the Production Order.  
[61]  
The Employer noted that s. 24.01(d) of the Collective Agreement states that the Employer may  
request proof of illness for any absence in excess of 3 days, and that the Medical Fitness section of the  
Employee Handbook states that all employees must submit a medical certificate after an illness in excess  
of 3 days, confirming that the employee is physically and mentally fit to work.  
[62]  
The Employer noted that it sought a medical certificate from the Grievor on three separate  
occasions: in March, May and July 2019. In particular, the Employer noted that it made a detailed request  
for medical information in March 2019, due to various incidents involving the Grievor, that clearly  
requested information regarding the Grievor’s ability to work. The Employer noted that in response to these  
requests, the Grievor only provided medical notes from a family physician, and at no time provided any  
medical notes from any psychiatrist, and that there is no evidence that the family physician was aware of  
any mental diagnosis, and took such a diagnosis into account when she provided the medical notes and  
confirmed that the Grievor was fit to work.  
[63]  
The Employer submitted that the Grievor’s decision to not comply with the Production Order  
precludes its ability to assess whether the Grievor fulfilled her obligation to provide an appropriate medical  
certificate, to cross-examine the Grievor, and defend itself in this arbitration.  
[64]  
The Employer noted that the Grievor has testified that her only medical conditions are psoriasis,  
and some anxiety and migraines, and that the only thing that she had been prescribed during her employment  
was cannabis and a topical treatment for psoriasis. The Employer submitted that it is unable to properly  
14  
cross-examine the Grievor and defend itself in this matter without the production of the medical records,  
because the Employer must know what diagnoses the Grievor in fact had, what treatments she was  
undergoing, whether she was maintaining her treatment plan, and whether that those diagnoses and  
treatments impacted her fitness to work and her interactions with other people. The Employer submitted  
that the Grievor’s decision to not comply with the Production Order affects all six Grievances, as the  
credibility of the Grievor is at issue in all of the Grievances.  
[65]  
The Employer also provided submissions regarding possible damages and the mitigation of any  
such damages. The Employer noted that he Grievor testified that she was too ill to look for work from the  
commencement of the unpaid administrative leave on July 19, 2019 until January 2020, and that she  
obtained new employment only in February 2020, shortly after she was well enough to work again. The  
Employer also noted that he Grievor testified that that she could not work from March 2020 and thereafter,  
during COVID, because she was immune compromised, and that she cannot work as a PSW, because the  
Grievances have not yet been dealt with, and that this causes her stress. The Employer submitted that the  
Grievor’s decision to not comply with the Production Order blocks information regarding her fitness to  
work, possible damages, and the mitigation of any possible damages.  
[66]  
In view of all of this, the Employer submitted that the Grievor’s decision to not comply with the  
Production Order, and her failure to provide any information regarding the possible diagnoses, is a severe  
abuse of process that completely precludes the Employer from defending itself against the Grievor’s  
Grievances, and causes the Employer irreparable harm. Accordingly, the Employer submitted that all six  
of the Grievances must be dismissed.  
[67]  
In the alternative, the Employer submitted that if any one of the Grievances is not dismissed, it  
should be only Grievance No. 6 that alleges that the Employer did not fulfill its obligations to pay uniform  
allowance and vacation pay, and to provide a credit check letter and an amended ROE. The Employer  
submitted that it could be argued that the Grievor’s possible disposition is not as relevant to Grievance No.  
6. However, the Employer noted that its concerns regarding its ability to properly cross-examine the  
Grievor, and to test her credibility, apply equally to Grievance No. 6, thus giving grounds to dismiss  
Grievance No. 6 as well. The Employer stated that if Grievance No. 6 is not be dismissed, the Employer  
expects, based on the finite issues in Grievance No. 6, that it can be resolved expeditiously.  
THE UNION’S SUBMISSIONS  
[68]  
The Union stated that it does not dispute that the Grievor will not comply with the Production  
Order, and that an Arbitrator has the authority to dismiss grievances on a summary basis due to such a  
15  
refusal. However, the Union submitted that such a dismissal would be inappropriate in this case, because  
such a dismissal should only result in the clearest of cases, which is not this case. The Union submitted that  
the Employer's motion to dismiss should not be granted for the following reasons.  
[69]  
First, because the Union has provided at least some medical information, such as: a 2018 medical  
note stating that the Grievor has psoriasis; two 2019 notes from her family physician stating that two of the  
Grievor’s absences from work were for medical reasons; numerous receipts for the purchase of cannabis,  
which the Grievor testified she took for medicinal purposes; two medical reports dated November 12, 2019  
and January 28, 2020 regarding the Grievor’s subsequent WSIB claim; a lab report dated January 28, 2020;  
pages from a web search pertaining to psoriasis, intrinsic factors and depression, and; a highly redacted  
letter, stamped by a Service Canada Centre on February 21, 2020, that only shows that it was written and  
signed by a Psychiatrist and a Clinical Fellow. The Union also noted that the Grievor has testified that she  
had informed the Employer about the stress and migraines that experienced as a result of the numerous  
negative interactions she had with her co-workers and members of management.  
[70]  
Second, the Union submitted that the Employer has failed to demonstrate a clear case of abuse of  
process so as to justify the dismissal of the Grievances. The Union noted that in Budget Car Rentals  
Arbitrator Davie stated that [bolding added]:  
14. In my view, an arbitrator should not lightly dismiss a grievance by reason of any "abuse  
of process", and outright dismissal of a grievance by reason of an alleged abuse of process  
should only occur in the clearest cases. In exercising the jurisdiction or discretion to dismiss  
a grievance by reason of an abuse of process however, it must also be remembered that the  
grievance and arbitration process was established to settle employment related disputes  
in a relatively expeditious and inexpensive manner. Within this context, it is reasonable to  
expect that the grievor, who is a party to that process, cooperate with reasonable requests  
made of him by his union, attend and participate in the hearing set up to deal with his grievance,  
and comply with the directions or orders of the arbitrator. In this case, the grievor's failure  
to attend, and his subsequent failure to comply with the order made in the interim award, has  
resulted in additional time and expense, to both the Union and the Employer.  
[71]  
The Union noted that in Serco DES v. USW (Bartley) 2014 CarswellOnt 1151 Arbitrator Luborsky  
set out, at para. 48, the following things that should be considered in a motion to dismiss [bolding added]:  
(a) an arbitrator has authority to allow or dismiss a grievance without a hearing on the merits  
in response to a party's non-compliance with a clear production or other valid procedural or  
evidentiary order;  
(b) provided such non-compliance is shown to arise out of a deliberate disregard for the  
arbitrator's order;  
16  
(c) which is an extraordinary sanction that should only issue in the clearest of cases where  
other less extreme measures could not fairly remedy the offending party's decision to not comply,  
such as (but not limited to) drawing adverse inferences, prohibiting the admission of a document  
that has not been produced supporting the offending party's side, granting an adjournment or  
possibly awarding costs, etc., subject to the provisions of a collective agreement on these matters.  
[72]  
The Union submitted that in this case these criteria are not met. First, the Union submitted that the  
Grievor has “co-operated” in this arbitration so far, by having collected and produced hundreds of other  
documents, and that the Grievor’s decision to not produce the Ordered documents does not amount to a  
“deliberate disregard for the Arbitrator's Order”. The Union noted that it was only when the Production  
Order included essentially all medical documents relevant to the Grievor’s mental status that she declined  
to comply with the Production Order. The Union submitted that Grievor’s decision to not comply is  
understandable, given that the requested documents are sensitive, and related to her mental status.  
[73]  
Third, the Union submitted that the Grievor does not have to comply with the Production Order for  
the reasons stated in McGee v. London Life, 2010 ONSC 1408 [bolding added[:  
9.  
The whole of a relevant document must be produced except to the extent it contains  
information that would cause significant harm to the producing party or would infringe  
public interests deserving of protection. I respectfully adopt as applicable in Ontario the  
statement of Lowry J., as he then was, in North American Trust Co. v. Mercer International  
Inc., 1999 4550 (BC SC) at para. 13:  
Under the rules of this court, a litigant cannot avoid producing a document in its  
entirety simply because some parts of it may not be relevant. The whole of a  
document is producible if a part of it relates to a matter in question. But where what  
is clearly not relevant is by its nature such that there is good reason why it should  
not be disclosed, a litigant may be excused from having to make a disclosure that  
will in no way serve to resolve the issues. In controlling its process, the court will  
not permit one party to take unfair advantage or to create undue embarrassment  
by requiring another to disclose part of a document that could cause considerable  
harm but serve no legitimate purpose in resolving the issues.  
10. Lowry J. referred to a number of authorities, some of which were referred to by London  
Life in the motion before me, and observed, at para. 11:  
In the cases to which I have been referred, litigants have been relieved from  
disclosing the whole of a document related to a matter in question where, but only  
where, the part withheld has been clearly not relevant to the issues and, because of  
its nature, there has been good reason why that part should not be disclosed. With  
reference to the decisions of this court specifically, good reason is apparent in the  
private nature of the affairs of a company recorded in the minutes of its directors'  
meetings, or the personal sensitivity of a person's medical records, diary  
notations, or familial communications, and much the same can be said where  
expurgated disclosure of a document has been upheld in the cases cited from other  
17  
jurisdictions. Statements to the effect that only the relevant parts of a document need  
be produced, such as in Jervis Court Development [Jervis Court Development Ltd.  
v. Ricci, [1992] B.C.J. No. 2932] at para. 24 and [K.L.V. v. D.G.R.], [1993] B.C.J.  
No. 1662] at para. 10, must be read in the context of what was decided.  
[74]  
The Union submitted that the personal medical information required in the Production Order has  
the potential to cause significant harm to the Grievor, and that she therefore has a good reason to not disclose  
that information. The Union submitted that even if the disclosure of the medical information is not  
objectively harmful, the Grievor subjectively feels she will be harmed by disclosure given the sensitivity  
of the information. As such, the Union submits that the Grievor’s decision to not disclose the medical  
information lacks improper or malicious intent, is understandable, and falls short of the behaviour required  
to justify the dismissal of her Grievances.  
[75]  
Fourth, the Union submitted that the Employer has failed to inform the Grievor in writing of its  
investigation into the Grievor’s harassment Complaints as required by section 32.0.7(1)(b) of the  
Occupational Health and Safety Act (OHSA). The Union submitted that it would be unjust to dismiss the  
Grievances if the Employer was not in compliance with this section.  
[76]  
Fifth, the Union submitted that the issues of whether harassment occurred, and whether there was  
just cause for the discipline and the administrative suspension, do not turn on the Grievor’s medical  
information, and can instead be assessed based only on the Grievor’s testimony, without any reference to  
that medical information. Based on this, the Employer submitted that a fair hearing on the merits can still  
occur, and there is no reason or need to dismiss the Grievances due to the Grievor’s decision to not provide  
the medical information. In this regard, the Union relied on the following passage in R v. Gruenke, [1991]  
3 S.C.R. 263 [bolding added]:  
One of the primary aims of the adversarial trial process is to find the truth. To assist in that  
search, all persons must, if requested, appear before the courts to testify about acts and  
events in the realm of their knowledge or expertise.”  
[77]  
The Union noted that the Grievor has already testified extensively, and will continue to do so. The  
Union submitted that this is sufficient, that the truth of what happened at work can be found through the  
Grievor’s testimony and the evidence already adduced, and that a fair hearing on the merits can still occur.  
[78]  
Sixth, and similarly, and in the alternative, the Union stated that it will agree to proceed with the  
Grievances, but without relying on the requested medical evidence. The Union submitted that if this is done,  
a fair hearing of the merits is still possible, based on the information the Grievor has already provided,  
18  
coupled with the Arbitrator’s authority to draw appropriate inferences pertaining to the Grievor’s decision  
to not comply with the Production Order. Based on this proposed agreement, the Union submitted that the  
Grievor’s decision to not comply with the Production Order is no longer relevant, and should not result in  
the dismissal of any of the Grievances.  
[79]  
In the further alternative, the Union submitted that the dismissal request is overbroad and moot in  
so far as it applies to the written warning, the three-day suspension and the uniform allowance Grievances.  
The Union submitted that even if the Grievor’s failure to comply with the Production Order justifies the  
dismissal of some of the other Grievances, these three Grievances should be unaffected and should proceed  
forward, because the Grievor’s medical information has no bearing on these Grievances, and the request  
for that information is too broad. The Union submitted that the Grievor’s privacy interests outweigh the  
Employer’s procedural fairness considerations, and that the Grievor’s decision to not comply with the  
Production Order is warranted. As another alternative, the Union submitted that the request for information  
is improper and moot because the evidence is complete for the first three Grievances. The Union submitted  
that the parties cannot now rely on any additional information, so the issue is moot.  
[80]  
The Union referred to College of New Caledonia (2019), 301 L.A.C. (4th) 189 (Saunders) and  
Ontario (Ministry of Children and Youth Services) (2006), 150 L.A.C. (4th) 149 in which the employers’  
requests for medical documents were denied, on the grounds that the request was too broad and was not  
necessary to defend the grievances. The Union also referred to Brock University (2019), 305 L.A.C. (4th)  
238 (Davie) which noted that in ordering production related to harassment complaints, the rights and  
confidentiality of complainants must be balanced against the rights of the other party. The Union also  
referred to: West Park Hospital v. O.N.A. (1993), 37 L.A.C. (4th) 160 (Knopf); Northern Youth Services  
(2011), 212 L.A.C. (4th) 318 (Carrier); Toronto (City) (2012), 229 L.A.C. (4th) 82 (Goodfellow), and; Telus  
Inc. and T.W.U. (Gonder), [2011] C.L.A.D. No. 279 (Goodfellow). The Union submitted that the  
Employer’s request for the medical information was so broad that it amounted to a “fishing expedition”,  
and should be denied.  
[81]  
Finally, the Union did not submit that there were any human rights issues in this matter, or that the  
Ontario Human Rights Code had been violated or was relevant in any way.  
THE EMPLOYER’S REPLY  
[82]  
First, and importantly, the Employer noted that most of the Union’s arguments in actuality pertain  
to whether the requested documents are relevant. The Union noted that this is not an issue in this hearing  
19  
regarding the motion to dismiss. Rather, the Employer noted that the relevancy of the requested documents  
has already been fully argued by the parties at the hearing regarding the Production Order, and has been  
ruled upon, as being relevant, in the Production Order Award. The Employer submitted that it is improper  
for the Union to be attempting to re-litigate that issue now. As such, the Employer submitted that all of the  
Union’s arguments that in fact pertain to the relevancy of the requested documents should be dismissed.  
[83]  
Also, the Employer noted that at the Production Order hearing the Union did not dispute that the  
requested documents were relevant, but rather argued that the Grievor should not be Ordered to produce  
the requested documents for other reasons. In view of this, the Employer submitted that it is particularly  
inadmissible for the Union to argue that the requested documents are not relevant.  
[84]  
The Union noted that the actual issue in this hearing, regarding the motion to dismiss, is whether  
the Grievor has acceptable grounds for refusing to comply with the Production Order. The Employer  
submitted that the Grievor has no acceptable grounds because in the Production Order Award I dismissed  
all of the Union’s arguments for why the Grievor should not be Ordered to produce the requested  
documents, I granted the Union the right to request the redaction of the documents, and I placed restrictions  
upon how the documents will be provided to and used by the Employer. In view of this, the Employer  
submitted that the Grievor has no acceptable grounds for refusing to comply with the Production Order.  
[85]  
The Employer submitted that in arguing that the requested documents are not relevant, and in  
failing to appropriately address and provide acceptable grounds for why the Grievor is refusing to comply  
with the Production Order, the Union has effectively conceded that the Grievor does not have any  
acceptable grounds for refusing to comply with the Production Order  
[86]  
With regard to the Union’s argument that the Grievor’s decision to not comply with the Production  
Order does not amount to an abuse of process, the Employer noted that Serco DES at paras. 13, 55 and 56,  
Baycrest Centre at para. 20, Budget Car Rentals at para. 14, and other cases make it perfectly clear that a  
grievor must comply with the lawful orders of the Arbitrator, and where the grievor refuses to comply with  
a production order, an arbitrator can find this to be an abuse of process, and dismiss the grievance. The  
Employer submitted that the Grievor’s decision to not comply with the Production Order amounts to an  
abuse of process, is very prejudicial to the Employer, and justifies the dismissal of the Grievances.  
[87]  
The Employer noted that Serco DES at para. 55 states that the integrity of the arbitration process  
requires that all parties respect the Arbitrator's Orders, even when they disagree with the Order, and that to  
allow a party to deliberately disregard an Arbitrator's Order, without consequences, would seriously  
undermine the integrity of the dispute resolution process, and warrants the dismissal of the grievance.  
20  
[88]  
The Employer disputed the Union’s submission that the Grievor’s conduct lacks improper or  
malicious intent. Very much to the contrary, the Employer noted that the Grievor has stated, on two  
occasions, that she is refusing to comply with the Production Order, and that she does not require any more  
time to reconsider he position. The Employer noted that there is no evidence that the Grievor cannot fulfill  
her obligation to comply with the Production Order, but rather she is simply refusing to comply with the  
Production Order, with a deliberate disregard for the Production Order.  
[89]  
Furthermore, the Employer noted that the Grievor has withheld medical documents that are  
relevant, notwithstanding the request for all relevant documents that was made before the hearing  
commenced, and notwithstanding the questions that have been asked of her throughout the six hearing days  
in this arbitration. The Employer also noted that the Grievor answered those question in a way that appears  
to be inconsistent with the new medical document that was provided only a week before the in April 21,  
2022 hearing date. The Employer submitted that this raises concerns that there has been improper or  
malicious intent, and that there may be other relevant documents as well that the Grievor is withholding.  
The Employer submitted that that makes it all more prejudicial that the Grievor has refused to comply with  
the Production Order, and all the more warranted that the Grievances be dismissed.  
[90]  
The Employer acknowledged that the medical documents that the Grievor is required to produce  
pursuant to the Production Order may be sensitive, and may touch on matters outside her employment, and  
that in some cases litigants have been relieved from disclosing the whole of a document where, but only  
where, the part withheld is clearly not relevant to the issues and, because of its nature, there is good reason  
why that part should not be disclosed.  
[91]  
However, the Employer noted that a detailed process has been established in this case, as part of  
the Production Order, to deal with these issues, being that it has been Ordered that the documents first be  
provided only to the Union, and that the Union has been given the right to first redact whatever information  
in the medical records it considers to be sensitive and not relevant, and then safeguards have been put in  
place to ensure the confidentiality of any parts of the medical records that are ultimately provided in the  
Employer, both during and after the arbitration. The Employer submitted that given these procedures and  
safeguards that are included expressly in the Production Order, the sensitivity of the medical documents is  
fully protected, and the Grievor has no legitimate grounds to refuse to comply with the Production Order.  
[92]  
Furthermore, the Employer noted that the case law, such as McGee v. London Life, states that even  
sensitive documents, if relevant, must be produced. Also, as stated in North American Trust Co. v. Mercer  
International Inc., which was relied on by the Court in McGee v. London Life, at para. 10, the Employer  
21  
noted that litigants have been relieved from disclosing the whole of a document “where, but only where”,  
the part withheld was clearly not relevant to the issues, and there were good reasons why that part should  
not be disclosed. As such, the Employer reiterated that McGee v. London Life states that relevant portions  
of a documents must be produced, even if they are sensitive to the Grievor.  
[93]  
The Employer submitted that it is irrelevant whether the Union states that it will not rely on the  
requested documents, because the requested documents have already been found to be relevant. The  
Employer submitted that the Union’s proposal that a fair hearing can still occur if the Union agrees to not  
rely on the requested documents is without merit. The Employer noted that Canadian Workers’ Union v.  
Frankel Structural Steel Ltd., 1976 CarswellOnt 508, at para. 62, states that the Union is required to produce  
the documents, even if it does not intend to rely on them, and that the Employer is entitled to review the  
requested documents to determine whether it wishes to rely on them, and that determination cannot be made  
until the documents are produced. The Employer submitted that Union cannot unilaterally decide what  
documents it will not produce, based upon whether it will be relying on them. The Employer submitted that  
this would grant the Union the unilateral power to control what documents are entered into evidence,  
effectively giving the Union total control over the arbitration.  
[94]  
Also, the Employer submitted that the Union’s proposal that the Grievor’s decision to not comply  
with the Production Order can be dealt with by drawing adverse inferences is wholly inadequate, given the  
importance of the requested documents to this arbitration.  
[95]  
The Employer noted that there is no evidence that the Employer failed to prepare and produce a  
written report of an investigation into one or more of the Grievor’s harassment Complaints, or has failed to  
produce any other relevant document. As such, the Employer submitted the it would be improper for this  
to be a reason to not dismiss the Grievances.  
[96]  
With regard to the Union’s argument that that the request to dismiss is moot and overbroad in so  
far as it applies to the first three Grievances regarding the written warning, the three-day suspension and  
the uniform allowance Grievance, the Employer notes that inherent in the Union’s argument is an admission  
that the documents are relevant to the remaining three Grievances.  
[97]  
The Employer submitted that the requested documents are clearly relevant to the first three  
Grievances, noting that in March 2019 the Employer provided the Grievor with a FAE Form to be  
completed by her treating physician regarding the Grievor’s conduct on March 7 and 14, 2019, that was the  
reason for the written warning and the three-day suspension that gave rise to Grievances Nos. 1 and No. 2.  
22  
The Employer noted that these Grievances pertain to the Grievor’s conduct at work, and that the requested  
documents are relevant to that conduct.  
[98]  
The Employer also noted that a pre-existing condition and causation are an issue in this Arbitration,  
as was the case in O.P.S.E.U. v. Ontario Clean Water Agency, 2005 CarswellOnt 7881 (GSB, Abramsky)  
which states, at para. 13, that [bolding added]:  
In this case, I find that the balance favours disclosure. It is clear that not only is the  
grievor's mental and physical health at issue, but causation is also a very significant  
issue. The Union alleges that events and harassment at the workplace  
directly caused the grievor to become ill and unable to work. Assuming that the grievor  
is unable to work due to stress and anxiety, the question of causation remains. Was his  
situation caused by events at the workplace for which the Employer  
is arguably liable, or did it result, in whole or in part, from a pre-existing condition,  
such that the Employer, arguably, is not liable? In these circumstances, the grievor's  
pre-existing medical condition is a relevant subject of inquiry, as is  
the ongoing treatment due to his claim of future lost earnings, and the OHIP summary  
will assist in determining what treatment the grievor has sought.  
[99]  
The Employer submitted that it cannot determine whether the Grievor has a pre-existing condition  
or disposition that caused or contributed to the Grievor’s conduct without obtaining the documents.  
[100]  
Finally, the Employer refuted the Union’s position that the evidence is complete with respect to  
the first three Grievances, and that the issue regarding the production of the requested documents for those  
first three Grievances is therefore moot. The Employer submitted that to accept this argument one would  
have to ignore the fact that the requested documents should have been produced prior to the commencement  
of the arbitration, that the requested documents have been found to be relevant to these three Grievances,  
and that evidence regarding the first three Grievances can be given when the second three Grievances are  
being heard, because no ruling on any of the Grievances will be rendered until the entire hearing is  
completed. The Employer also noted that the arbitration with regard to the second three Grievances has  
not even started yet, so there is no good reason to say that the evidence is complete with respect to the first  
three Grievances. As such, the Employer submitted that there is no merit to the Union's argument.  
ANALYSIS AND RULINGS  
[101]  
National-Standard (1994, Palmer), Budget Car Rentals (2000, Davie), Rio Tinto (2011, Steeves),  
Serco DES (2014, Luborsky) and Baycrest (2021, Gedalof) make it clear that grievors must comply with  
lawful orders of the Arbitrator, such as a production order, and if a grievor fails to comply with such a  
lawful order, the Arbitrator can dismiss the grievance, especially where the grievor’s failure to comply  
23  
amounts to an abuse of the arbitration process, or prejudices the employer. These cases also state that an  
Arbitrator should not lightly dismiss a grievance for this reason, but rather should do so only in the clearest  
of cases. For instance, in Budget Car Rentals Arbitrator Davie stated that [bolding added]:  
14. In my view, an arbitrator should not lightly dismiss a grievance by reason of any "abuse  
of process", and outright dismissal of a grievance by reason of an alleged abuse of process  
should only occur in the clearest cases. In exercising the jurisdiction or discretion to dismiss  
a grievance by reason of an abuse of process however, it must also be remembered that the  
grievance and arbitration process was established to settle employment related disputes  
in a relatively expeditious and inexpensive manner. Within this context, it is reasonable to  
expect that the grievor, who is a party to that process, cooperate with reasonable requests  
made of him by his union, attend and participate in the hearing set up to deal with his grievance,  
and comply with the directions or orders of the arbitrator. In this case, the grievor's failure  
to attend, and his subsequent failure to comply with the order made in the interim award, has  
resulted in additional time and expense, to both the Union and the Employer.  
[102]  
I find that this is one of those clearest of cases, where the most appropriate action to take is to  
dismiss five of the six Grievances. Some of the reasons for this are in the following summary of the most  
important events and issues (all dates are in 2019, unless otherwise stated):  
a) Between March 2019 and Feb. 2020 the Grievor filed six Grievances and over 30 written  
Complaints claiming that she was being “bullied and harassed” by her co-workers, members of  
management, and her Union Representatives. The Grievances and Complaints disclose that the Grievor  
was having a great deal of difficulty working with those people.  
b) The Grievor admitted that she communicated in an aggressive manner to a resident, and was given  
a written warning. The Grievor filed Grievance No. 1 regarding this.  
c) The Grievor was seen rocking in a chair and hyperventilating, and had to leave work early.  
d) The Grievor became anxious and disruptive at a Meeting, and had to leave work early.  
e) Due to “the Grievor exhibiting a number of behaviors and actions that are a serious cause for  
concern”, the Employer placed the Grievor on a paid medical leave and required that the Grievor have  
her treating physician complete a FAE Form and provide “particulars [regarding the Grievor’s] ability  
to safely attend at work and perform … her job”.  
f) In the FAE letter the Employer also informed the physician that: “Further to the incidents listed  
above, it has been brought to our attention by a fellow co-worker of the Grievor, that the Grievor  
disclosed to her that she suffers from a medical condition and requires medication that we understand  
she is not taking as prescribed”.  
g) The Employer only received a brief response from a family physician that only stated that the  
Grievor could return to work, without providing any other information.  
h) The Grievor returned to work, after a three-week absence, from Mar. 15 to Apr. 8.  
24  
i) From May 17 to June 7 the Grievor took a second three-week medical leave.  
j) The Employer gave the Grievor a three-day suspension for leaving her floor unattended and  
speaking to the charge person in an “aggressive and loud” manner. On May 29 the Grievor filed  
Grievance No. 2 regarding this.  
k) The Grievor also left work early and took days off on a number of other occasions between March  
7 to July 10 because she felt harassed and that she could not work.  
l) The Grievor took a third medical leave from July 11 to 14, claiming that she could not work due  
to alleged bullying and harassment and improper work performance by several of her co-workers and  
members of management.  
m) The Employer wrote to the Grievor on July 12 regarding this third medical leave, and her  
behaviour, stating that prior to returning to work she would have to provide a medical certificate stating  
that she is “physically and mentally fit to work”.  
n) The Grievor provided a note from a family physician that only stated that the Grievor “Is fit to  
work and is free of communicable diseases”. The note did not specifically address the Grievor’s mental  
fitness to work.  
o)  
The Grievor returned to work on July 16, and was assigned to work in the laundry room, hoping  
that would provide less opportunity for conflicts with her co-workers, but there were further conflicts.  
p)  
The Employer wrote to the Grievor on July 19, stating that she was “taking issue with many co-  
workers and management personnel” and that the Employer was “left with no other option but to  
place you on an administrative unpaid leave”.  
q)  
The Employer also said “we also require you to cease sending texts and emails to co-workers  
and management”. The Grievor had been sending texts and emails to co-workers and management”.  
r)  
s)  
t)  
The Grievor has not returned to work since July 19.  
On Aug. 1 the Grievor filed Grievance No. 3 regarding this unpaid leave was filed  
On Feb. 12, 2020, while she was not at work, the Grievor filed Grievances Nos. 4 and 5 claiming  
that her co-workers and members of management had bullied and harassed her.  
u)  
On Feb. 26, 2020 the Grievor filed Grievance No. 6 (“the uniform allowance Grievance”).  
v)  
So far, there have been two mediation days and six hearing days. The Employer has called four  
witnesses. The Union has called the Grievor, who’s testimony has spanned over four hearing days.  
w)  
To date, the Parties have focused on Grievance Nos. 1, 2 and 6. However, the other Grievances  
have been entered into evidence and will be addressed if this matter proceeds.  
x)  
The Grievor’s numerous Complaints are intertwined with the six Grievances and have also been  
considered with the six Grievances throughout the six hearing days.  
y)  
The Grievor has testified, among other things, that her co-workers and management have bullied  
and harassed her in connection with her Grievances and her Complaints.  
25  
z)  
A relevant issue is whether the Grievor has any mental disposition that could affect her behaviour  
and her ability to work with other persons, or cause her perception of events to be inaccurate and not  
credible. The Grievor has testified that she does not have any such mental disposition.  
aa) In October 2020, prior to the commencement of the hearing, the Employer requested that the  
Union produce all relevant documents. The Parties have produced numerous documents to each other.  
bb) However, on April 14, 2022, one week before the sixth hearing date, the Union provided a new  
document - the highly redacted document that refers to the DMS-5 Diagnoses of Persistent Depressive  
Disorder (dysthymia) and Generalized Anxiety Disorder (Cluster B Personality traits).  
cc) Union counsel stated that this document had only very recently been brought to his attention.  
The Employer accepted that assertion.  
dd) The Employer brought a motion for a Production Order for all records relevant to these two  
diagnoses. The Union opposed the Motion.  
ee) At the April 21, 2022 hearing I informed the Grievor that failure to comply with a Production  
Order could result in the dismissal of her Grievances.  
ff)  
On May 2, 2022 I repeated this warning in an email that was shared with the Grievor.  
gg) On May 5, 2022 the Production Order motion was heard, and was fully argued.  
hh) The Employer presented excerpts from the DSM-5 Psychiatric Manual and noted that the two  
diagnoses can cause excessive anxiety, worry, irritability, feeling on edge, and “clinically significant  
distress or impairment in social, occupational or other important areas of functioning”, and submitted  
that these symptoms are highly relevant to the Grievances and Complaints, which pertain to  
interpersonal conflicts with co-workers and management.  
ii) The Union did not dispute that the requested medical records are relevant to this matter. Rather,  
the Union submitted that they should still not be provided because: (1) there are some other documents  
already in evidence that touch upon the Grievor’s mental state, and; (2) the Grievor’s privacy interests  
outweigh the Employer’s interests. The Union submitted that should I require the production of the  
medical records, I should place conditions upon the Employer's use of them, to ensure that the Grievor’s  
privacy is protected to the greatest extent possible.  
jj) On May 6, 2022 I issued the Production Order Award, ruling that the requested medical records  
are relevant, and are required so that the Employer can properly cross-examine the Grievor, and in all  
other ways prepare its defence to the six Grievances. However, to protect the Grievor’s privacy, I placed  
strict conditions upon the Employer's use of the records.  
kk) By May 10, 2022, I Ordered the Grievor to: (1) produce to the Union specified medical records  
that are in her possession, and; (2) sign a consent letter directing specified medical professionals to  
provide to the Union specified medical records. I also set out a procedure for how those specified  
medical records could be redacted by the Union.  
ll)  
On May 9, 2022 the Union informed me that the Grievor had stated that “she will not be  
providing any documents set out in the Award, and will not be signing a consent”.  
26  
mm) On May 10, 2022 a Case Conference regarding the motion to dismiss was held, after which I  
issued my Case Management Award, in which I again warned the Grievor that a failure to comply  
with my Production Order could result in the dismissal of her Grievances.  
nn) Accordingly, I have informed the Grievor, on the following three occasions in 2022, that failure  
to comply with the Production Order could result in the dismissal of her Grievances:  
4. On Apr. 21 - At the sixth day of hearing on the merits.  
5. On May 2 - In an email.  
6. On May 10 - In my Case Management Award  
oo) On June 6, 2022 the motion to dismiss hearing was held, during which I asked whether the  
Grievor had changed her position that “she will not be providing any documents set out in the Award,  
and will not be signing a consent”. The Union informed me that the Grievor had not changed her position  
and would still not be complying with the Production Order.  
pp) On June 6, 2022 l also asked the Union whether the Grievor would be requesting to be given one  
last opportunity to comply with the Production Order, if I were to rule that the Grievor’s decision to not  
comply could result in the dismissal of the Grievances. Again, the Union informed me that the Grievor  
is not requesting to be given one such last opportunity to comply.  
[103]  
In view of all of this, I find that  
1. The records compelled in the Production Order are relevant to this matter. The Grievor has  
deliberately decided that she will not comply with the Production Order, notwithstanding the processes  
set out in the Production Order to protect her privacy.  
2. This has interfered with the arbitration of the six Grievances in that it has, at a minimum, interfered  
with the Employer’s ability to prepare for the arbitration, and interfered with the Employer’s ability to  
cross-examine the Grievor. This is prejudicial to the Employer.  
3. Also, it has as well added days to the arbitration, due to the need to incur significant additional time  
and arbitration days to prepare for and argue the motion for the Production Order, the Case Management  
Conference, and the motion to dismiss. In view of the Grievor’s decision to not comply with the  
Production Order, this has added additional expense, for both the Employer and the Union. All of this  
amounts to an abuse of process.  
4. As such, for the reasons to be discussed more fully later, I am dismissing Grievances Nos. 1 through  
5, because the Grievor’s mental disposition is clearly relevant to these 5 Grievances. I am not dismissing  
Grievance No. 6, because the Grievor’s disposition is not relevant to Grievance No. 6.  
5. I do not take my decision to dismiss Grievances Nos. 1 through 5 lightly. Rather, I consider this to  
be a clearest of cases. The grievance and arbitration process is a fundamentally important process that  
has been established to ensure that disputes between unions, grievors and employers can be addressed  
and resolved in a fair, productive and efficient manner. Fairness is fundamental to the process. In this  
case, it would be unfair and prejudicial to require the Employer to continue with Grievances Nos. 1  
through 5 in the face of the Grievor’s decision to not comply with the Production Order. In view of the  
Grievor’s decision, the only fair course of action is to dismiss Grievances Nos. 1 through 5.  
27  
[104] I will now address some of the arguments presented by the Parties. Many of the Union’s arguments  
pertain to whether the requested documents are relevant. The Employer submitted that I should not consider  
these arguments, because the relevancy of the requested documents is not the issue in this hearing, regarding  
the motion to dismiss, given that the relevancy issue has already been fully argued by the Parties at the  
Production Order hearing, and that the requested documents have already been ruled upon to be relevant.  
However, notwithstanding that, I have still considered the Union’s relevancy arguments, on two levels.  
First, I have again examined the issue of whether the requested documents are relevant, and I again conclude  
that they are relevant to the Grievances. Second, I have considered whether the Grievor nevertheless  
believes that the requested documents are not relevant to the Grievances, or should not have to be produced  
for other reasons, and whether this gives the Grievor acceptable grounds for not complying with the  
Production Order. For the reasons stated herein, I find that this does not give the Grievor acceptable grounds  
for not complying with the Production Order.  
[105] The main issue in this hearing, simplified, regarding the motion to dismiss, is whether the Grievor  
has acceptable grounds for not complying with the Production Order. The DMS-5 indicates that if the  
Grievor experiences Persistent Depressive Disorder (Dysthymia) and Generalized Anxiety Disorder, this  
could have affected her relationships with residents, co-workers and members of management, and could  
have caused her perception of her interaction with those persons to be less than accurate. This is very  
relevant to the Grievor’s ability to work with others, and to her Grievances. As was discussed in Ontario  
Clean Water Agency, a pre-existing condition and causation are relevant issues in this Arbitration. The  
Employer cannot determine whether the Grievor has a pre-existing condition or disposition that caused or  
contributed to the Grievor’s ability to work with others without obtaining the requested documents. As  
such, the Grievor must have acceptable grounds for not complying with the Production Order. I find that  
she does not have such acceptable grounds, and that her decision to not comply is not justified, and  
substantially interferes with and prejudices the Employer’s ability to defend itself against the Grievances.  
[106] The Collective Agreement grants the Employer the right to request proof of illness and  
confirmation that the employee is physically and mentally fit to work. The Employer requested such a  
medical certificate from the Grievor on three separate occasions in 2019, due to various incidents involving  
the Grievor and other people. In response to this, the Grievor only provided medical notes from a family  
physician, that did not address her mental state. Also, throughout the hearing the Grievor was asked  
questions regarding her mental state. The Grievor testified that she does not have any mental condition that  
affects her ability to work with others. Against that history, the Grievor now will not comply with the  
Production Order, and produce the requested documents. This amounts to an abuse of process. It interferes  
28  
with the Employer’s ability to prepare its defence to the Grievances, and seriously prejudices the Employer  
in connection with Grievances Nos. 1 to 5, that pertain to the Grievor’s ability to work with others.  
[107] Grievance No. 6 does not appear to pertain to the Grievor’s ability to work with others. Rather, it  
alleges that the Employer did not fulfill its obligations to pay uniform allowance and vacation pay, and to  
provide a credit check letter and an amended ROE. These appear to be relatively objective issues that should  
not be significantly affected by the Grievor’s ability to work with others. Notwithstanding the Employer’s  
submissions that the Grievor’s decision to not comply with the Production Order equally interferes with its  
ability to properly cross-examine the Grievor and defend itself against Grievance No. 6, I find that  
Grievance No. 6 should not be dismissed, and any concerns regarding prejudice to the Employer can be  
address as Grievance No. 6 is arbitrated. I also note that it is the Employer’s expectation, based on the  
nature of the issues grieved in Grievance No. 6, that it can be resolved expeditiously. In doing so, it appears  
that any claim for uniform allowance and vacation pay would be based upon the Grievor’s employment up  
to July 19, 2019, and not thereafter.  
[108] I do not accept the Union’s argument that the motion to dismiss should not be granted because the  
Grievor has already provided some medical information regarding her mental status. The medical  
information referred to by the Union that the Grievor has provided so far is extremely limited. In some of  
the cases, rather than answer questions regarding the Grievor's mental status, the very limited and redacted  
information only raises more questions. This is the case with the highly redacted letter, stamped by a Service  
Canada Centre on February 21, 2020, that is so redacted that it only shows that it was signed by a  
Psychiatrist and a Clinical Fellow. It provides no information at all regarding the Grievor’s mental state.  
To the contrary, it raises unanswered questions regarding the Grievor’s mental state. In other cases, the very  
limited information does not appear to be directly or significantly relevant to the issue at hand, such as the  
2018 medical note that only states that the Grievor has psoriasis. Providing this very limited information  
does not exempt the Grievor from complying with the Production Order. Rather, it makes compliance with  
the Production Order all the more important, because it raises legitimate questions regarding the Grievor’s  
mental state. The Grievor cannot unilaterally decide what she will, and will not, produce. Rather, the  
Grievor must produce all relevant documents, and must comply with the Production Order.  
[109] I accept that the Grievor feels that the medical information required in the Production Order is  
sensitive to her, and that she believes that it has the potential to cause privacy and other harm to her, and  
that she therefore feels that she has a good reason to not wanting to disclose that information. However, a  
detailed process was granted in the Production Order, to address and protect the Grievor’s privacy concerns.  
Given these protections to the Grievor’s privacy, and the basic requirement to comply with a Production  
29  
Order, I do not accept that the Grievor’s feelings and beliefs referred to above are acceptable grounds to  
not comply with the Production Order. As stated in Serco DES at para. 55, the integrity of the arbitration  
process requires that all parties respect the Arbitrator's Orders, even when they disagree with the Order, and  
that to allow a party to deliberately disregard an Arbitrator's Order, without consequences, would seriously  
undermine the integrity of the dispute resolution process. The Grievor has stated, twice, that she will not  
comply with the Production Order, and that she does not require any more time to reconsider her position.  
In view of all of this, it is appropriate to dismiss Grievances Nos. 1 to 5.  
[110] I do not accept that a fair hearing can be based only on the Grievor’s testimony, or subject to the  
Union’s proposal that it will not make any reference to the requested medical information. Neither of these  
proposals resolve the Employer’s concerns regarding the Grievor’s failure to comply with the Production  
Order. It is true that the Grievor has appeared and testified extensively at the hearing. However, that is not  
sufficient. Also, the Union is required to produce relevant documents, even if it does not intend to rely on  
them. And the Employer is entitled to review the relevant documents to determine whether it wishes to rely  
on them, and that determination cannot be made until the documents are produced. The Grievor cannot  
unilaterally decide what evidence will be considered in this hearing, either by: (1) basing the hearing only  
on her testimony, and what she decides to testify about, or; (2) agreeing that it will not make any reference  
to the requested medical information. This is particularly true in view of the Employer’s concerns regarding  
the Grievor's testimony so far, and her failure therein to disclose anything that would cause her to have  
difficulty working with other people. The Union’s proposals could have the effect of allowing the Union to  
unilaterally exclude the requested documents from the hearing, which I have found to be quite relevant to  
this hearing. Similarly, the Union’s proposal that the Grievor’s decision to not comply can be dealt with by  
drawing adverse inferences is inadequate. Given the importance of the requested documents to this  
arbitration, this would not be an appropriate way to decide this matter. And I am also not satisfied that any  
other measures, less severe than dismissal, would be appropriate to resolve this matter.  
[111] In this regard, the Grievor has withheld medical documents that are relevant, notwithstanding the  
request for all relevant documents that was made before the hearing commenced, and notwithstanding the  
questions that have been asked of her throughout the six hearing days. Also, the Grievor answered those  
questions in a way that appears to be inconsistent with the new medical document that was only recently  
provided. This makes it all more problematic that the Grievor has now also stated that she will not comply  
with the Production Order, and all the more warranted that the Grievances be dismissed.  
[112] McGee v. London Life states that even sensitive documents, if relevant, must be produced, and that  
litigants have been relieved from disclosing the whole of a document “where, but only where”, the part  
30  
withheld was clearly not relevant to the issues, and where there were good reasons why that part should not  
be disclosed. The Production Order already addresses the sensitivity of the requested records. It contains a  
process by which the documents are first provided only to the Union, and then can be redacted by the Union,  
which redactions are subject to my final determination, and then places restrictions upon the Employer’s  
use of the documents. This already provides protection to the Grievor of not having to disclose portions of  
a document that are not relevant to the arbitration, and provides protection for the Grievor’s privacy.  
[113] There is insufficient evidence that the Employer failed to prepare and produce a written report of  
an investigation into one or more of the Grievor’s harassment Complaints, or has failed to produce any  
relevant documents. In any event, even if this were the case, this is an issue that could be addressed in the  
arbitration, and is not a sufficient ground to justify the decision to not comply with the Production Order.  
[114] The evidence and the hearing is not complete with respect to the first three Grievances, and the  
issue regarding the production of the requested documents for those first three Grievances is not moot. The  
requested documents should have been produced prior to the commencement of the arbitration. Also,  
evidence regarding the first three Grievances can be given when the second three Grievances are being  
heard, because no ruling on any of the Grievances will be rendered until the entire hearing on all of the six  
Grievances is completed. The arbitration regarding the second three Grievances has not started yet. There  
are no strong grounds to say that the evidence is complete with respect to the first three Grievances.  
[115] Finally I wish to commend both the Union and the Employer, and their counsel, for the most  
thorough and capable manner in which they have presented their cases throughout this proceeding, since it  
commenced with the first mediation on December 20, 2019. Their most professional conduct throughout  
this lengthy and complex matter has eminently served both of the sides, and has greatly assisted me  
throughout this proceeding.  
[116] To summarize, Grievances Nos. 1 to 5 are dismissed. Grievance No. 6 is not dismissed. Hopefully,  
given the issues in Grievance No. 6, the Parties will be able to productively and expeditiously resolve  
Grievance No. 6. However, if the Parties are not able to do so, this arbitration will continue to consider only  
Grievance No. 6, subject to my comments above regarding Grievance No. 6. I remain seized of this matter.  
Signed at Toronto on July 5, 2022.  
_________________________  
Peter Chauvin, Arbitrator  


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