Update for Professionals

Number 12 – October, 2007

Divisional Court Strikes Down Costs Order of Colleges’ Discipline Committee

By Kate Hughes

On September 28, 2007, the Divisional Court set aside a decision of the College of Nurses of Ontario’s Discipline Committee which awarded costs against a member in a discipline proceeding. In that case, although the costs were very minimal ($100.00), the Divisional Court set aside the decision of the Discipline Committee as unreasonable.

The Discipline Committee of the College ordered costs against the Member after a short discipline hearing that proceeded entirely by way of an Agreed Statement of Facts and Joint Submission on Penalty. The Discipline Committee, on its own motion, ordered the costs and relied on a rule that they had created (“Rule 6") that stated if the Committee was not informed of a settlement at least 10 days prior to the hearing date, they could order costs against “the party responsible for the delay”. The Committee then ordered costs against the individual nurse, not the College. The facts were that both parties were negotiating the agreement in good faith right up until the day before the hearing, the member was not responsible for the delay, and in fact had contacted the College promptly after receiving late disclosure from the College.

While the nurse was successful in having the costs award struck down, the Divisional Court decided to set aside “for another day” the decision whether the rule itself should be struck down. The rule appears to be inconsistent with the Regulated Health Professions Act that limits the authority of the Committee to order costs in “an appropriate case”, and the Statutory Powers Procedures Act (“SPPA”) that prohibits an order for costs unless the conduct of a party has been “unreasonable, frivolous, or vexatious” or a party has acted in “bad faith”. The Court declined at this point to rule on this issue, given they found the particular decision to be unreasonable.

Although on its face, the rule appears to be applicable to both Colleges and Members, in practice, the rule would only be enforceable against Members. This is because Colleges are protected against most cost orders. The Regulated Health Professions Act Procedural Code states that no order may be made against a College unless it is shown that “commencement of proceedings were unwarranted”. This is a difficult test to meet even in cases where the College fails to prove professional misconduct. It would be impossible to meet in a case where the member acknowledges professional misconduct and the matter proceeds by way of agreed facts and penalty (and thus presumably the commencement of the proceedings were “warranted”). The effect of the Discipline Committee’s rule is that, as this case illustrated, the rule impacts only the individual member for costs even though the College may also be responsible for “delay” in reaching a negotiated settlement.

Further, an order of costs in circumstances where a Member has acted reasonably and reached a settlement with the College, but has not provided the requisite notice of settlement under the rule, is questionable when the settlement avoids a contested hearing, and often results in a saving of costs to the College.

The issue of costs against members in discipline proceedings before a number of Colleges has become particularly troubling for members. Costs awarded have been extremely high with respect to a number of colleges, many of whom have made precedential costs decisions at proceedings where the members are unrepresented or on basis of egregious facts. Unfortunately these case are causing some College’s Discipline Committee to, as a matter of course, order costs awards against members. This court challenge in the recent College of Nurses case was an attempt to put a halt to this tide of cases where costs are now becoming increasingly common. Although the costs award was not high in this case, it was struck down by the Court and hopefully will send a signal to future Discipline Committees who may be contemplating costs awards.

If you have any questions or concerns regarding costs awards of professional colleges, please do not hesitate to contact Kate Hughes.

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The Dupont/Daniel Inquest commences

By Janina Fogels

Lori Dupont was a Registered Nurse working at Hotel Dieu-Grace Hospital in Windsor, Ontario when she was murdered by Dr. Marc Daniel, on November 12, 2005. Daniel, an Anaesthesiologist at the same Hospital, was found unconscious in his car from a drug overdose shortly after, and died a few days later. A Coroner’s Inquest began on September 24, 2007 and is expected to last eight weeks. Approximately 50 witnesses will testify, including nurses and doctors who worked with Dupont and witnessed Daniel’s allegedly escalating harassing behaviour.

The main purpose of the inquest is to inquire into the circumstances of these deaths and determine the cause of death. Following all of the testimony, a jury will make recommendations with a view to avoiding future deaths in similar circumstances.

The prevention and response to workplace harassment and violence will be at the forefront of the Inquest. The jury will hear about the actions of the Hospital to allegations raised by nurses and family members of threatening behaviour on the part of Daniel, directed at Dupont as well as other staff members. Links between domestic and workplace violence will also be an important issue, including the response of the criminal justice system prior to the death of Dupont.

The material issues to be examined at the Inquest, include governance of medical staff at hospitals under the Public Hospitals Act and the Regulated Health Professionals Act and what role medical staff shortages may have played in determining Daniel’s readiness to work after a suicide attempt, nine months before their deaths. Doctors’ hospital privileges are governed primarily by the Public Hospitals Act. The Hospital Board has the power to, amongst other things, revoke or suspend a member of the medical staff. Hospitals in Ontario typically have Medical Advisory Committees which make recommendations to the Board of Directors. In this case, Daniel’s privileges were revoked but then reinstated a few months later.

While workplace violence initiatives in the province have been stepped up recently, many stakeholders view the response by Employers as still requiring significant improvement. Were reasonable precautions taken by Hospital administration? Should there be better information-sharing systems between justice partners, counselors and employers regarding “high risk” cases? Is the Ministry of Labour’s response under the Occupational Health and Safety Act sufficient when it comes to complaints of workplace violence?

As other Canadian provinces have developed specific legislation or provisions in their Occupational Health and Safety legislation prescribing policies and methods for reducing or eliminating the risk of workplace violence, one wonders why workplace violence is not addressed under Ontario law. Another consideration put to the jury will likely be the question of when an act becomes “violence” – that is, does the act have to result in physical injury or can it include variations on psychological violence such as ongoing harassment, intimidation, taunts, and emotional abuse?

Parties with standing at the inquest include the Dupont family, the Daniel family (Estate of Marc Daniel), the Ministry of Labour (Ontario), Hotel Dieu Grace Hospital, the Ontario Hospital Association, the Essex County Crown Attorney's Office, and the Ontario Nurses’ Association (ONA). Liz McIntyre and Janina Fogels are representing ONA.

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SARS Commission’s Recommendation of the “Precautionary Principle” Results in New Regulation Mandating Better Protective Equipment for Hospital Employees

By Kate Hughes

The Government of Ontario has recently introduced new regulations and initiatives that provide improved protective equipment for health care professionals. These measures are in part, the result of the comprehensive review of the SARS outbreak conducted by the Honourable Mr. Justice Archie Campbell.

In December 2006, Mr. Justice Campbell released his report regarding the SARS outbreak in Ontario entitled, “Spring of Fear”. He opened his Executive Summary of this report by stating:

“SARS was a tragedy. In the space of few months, the deadly virus emerged from the jungles of central China, killed 44 in Ontario and struck down more than 330 others with serious lung disease. It caused untold suffering to its victims and their families, forced thousands into quarantine, brought the health system in the Greater Toronto Area and other parts of the province to its knees and seriously impacted health systems in other parts of the country.

Nurses lived daily with the fear that they would die or infect their families with a fatal disease. The nine-year old daughter of one nurse asked:

Mommy, are you going to die?

Respiratory technicians, doctors, hospital workers, paramedics and home care workers lived with the same fear.”

Mr. Justice Campbell made a number of important recommendations to avoid future outbreaks of infectious diseases. He stated the most important lesson of SARS was implementing the “precautionary principle”, which was described as follows:

Where there is reasonable evidence of an impending threat to public harm, it is inappropriate to require proof of causation beyond a reasonable doubt before taking steps to avert the threat...that reasonable efforts to reduce risk need not await scientific proof.

Mr. Justice Campbell held that this principle should be adopted as a guiding principle throughout Ontario’s public health and worker safety systems.

One clear problem in the SARS outbreak identified by the Commission was the lack of adequate protective equipment for health care professionals. A small step in this regard was recently made by a new regulation under the Occupational Health and Safety Act (Regulation 474/07, introduced in August 2007) mandating Hospitals to take measures to prevent needlestick/sharps injuries. The evidence of Nurses and others being injured by needlestick/sharps and being put at risk of infections by blood borne pathogens is widespread across the province. Numerous studies have indicated the critical need for such new needle safety regulations.

The new regulation mandates that hospitals must provide safety engineered needles, or a needleless system in all hospitals as of September 1, 2008. These new protective safety engineered medical devices (referred to as SEMDs) will be mandated in long-term care facilities, psychiatric facilities, laboratory and specimen collection centres in 2009 and other health care workplaces including home care, doctor’s offices, and ambulances in 2010.

The new needlestick regulation is found at www.e-laws.gov.on.ca/html/source/regs/ english/2007/elaws_src_regs_r07474_e.htm.

Another recent development in protective equipment for healthcare workers, is the Ontario government’s recent announcement on August 24, 2007 that it would be purchasing up to 55 million “N95 respirators”. These respirators provided a significantly higher level of respiratory protection for health care workers during the SARS outbreak, as opposed to the inadequate surgical masks used by many Hospitals. Mr. Justice Campbell called the N95 respirators one of the most contentious issues in the SARS outbreak. Although the Occupational Health and Safety Act has required since 1993 that anyone using a N95 mask be properly trained and fitted to ensure full protection, few Hospitals complied with the Act and some even denied its existence. Fit testing was the subject of official confusion and heated public debate and many Labour Board complaints and grievances were initiated by ONA, OPSEU and other unions. Mr. Justice Campbell called it a “lightening rod” for all the underlying problems of worker safety in Hospitals.

If you have any questions regarding this new regulation under the Occupational Health and Safety Act, the SARS recommendations or issues of protective equipment for workers, please contact Kate Hughes or Elizabeth McIntyre.

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A Duty to Explain to the Employer When Potential for Self-Incrimination: BC Ferry Muddles the Already Murky Waters

By Elichai Shaffir

Re British Columbia Ferry Services Inc. and B.C.F.M.W.U., (2007) 159 L.A.C. (4th) 165 (BC Ferry) marks the latest addition to the ongoing debate about an employee’s obligation, if any, to provide an employer with an explanation for alleged misconduct. At the heart of this matter lies the balancing of competing interests. On the one hand, an employee has an interest in “remaining silent” when he or she may be liable to subsequent criminal charges, as any self-incriminating admissions made during a workplace investigation would not be privileged and admissible as evidence in a criminal proceeding. On the other hand, the employer has an interest in having an employee explain suspicious circumstances and to conduct an investigation into alleged misconduct.

There is no consensus within the arbitral jurisprudence on this matter. While one line of reasoning maintains that an employee cannot be disciplined for failing to explain situations that appear suspicious, another line of reasoning suggests the opposite. According to the latter, an employee’s refusal to explain can amount to an act of insubordination which is punishable independent of any alleged misconduct. Unfortunately, BC Ferry does not resolve these different lines of reasoning.

Discipline Cannot Result From a Failure to Explain

For those who maintain that an employee has the right to remain silent, the obligation to give an explanation has been described as an opportunity and not a duty. It is up to the employer to discover and subsequently prove its case without the employee’s assistance. As stated in Re Tober Enterprises Ltd. and U.F.C.W. Local 1851, [1990] B.C.L.R.B.D. No. 51 (Bruce) (Tober Enterprises), “it is the proven substantive misconduct, and not the failure to explain which constitutes just and reasonable cause for discipline or discharge. The failure to explain, without more, simply cannot be regarded as culpable behaviour.”

An employee’s right to privacy has also been relied upon to support the principle that an employee has the right to remain silent. It is now widely accepted that absent contractual requirements, an employee need not submit himself or herself to a search of his or her person or possession. As some arbitrators have noted, if an employee need not submit to a search, he or she should similarly not be required to make a statement which may implicate himself/herself.

Discipline Can Result From a Failure to Explain

The second line of reasoning holds that failure to explain alleged misconduct may constitute separate misconduct and deserving of discipline in and of itself. In these cases, arbitrators have upheld discipline for a failure to explain in a number of circumstances, including the following: where an employee is found to be in possession of company property; where the employer is able to make out a prima facie case of misconduct; and and mostly recently in BC Ferry, where the employer’s legitimate business interests outweigh the employee’s personal freedoms.

Without expanding upon the first two scenarios in any great level of detail, suffice it to say that proponents here maintain that suspicious circumstances require an explanation. When a prima facie case of employment misconduct has been made out, the burden of proof shifts to the employee to provide an adequate explanation for his or her actions. If an employee fails to provide an explanation, disciplinary action may be merited.

Another line of cases, culminating with BC Ferry, holds that an employee’s right to remain silent can be abrogated in light of the legitimate business interests of his or her employer.
The facts of BC Ferry were as follows. Following the sinking of a vessel, the British Columbia Ferry Services Inc. established a Divisional Inquiry Panel to investigate and report on the accident. Based on the advice received from independent legal counsel, two crew members refused to answer any questions about the critical period of time before the vessel’s grounding because any statements given could be admitted in future criminal proceedings. Their silence was seen as a continuing act of insubordination and, accordingly, both employees were held out of service without pay. There were no criminal charges or investigation at the time of the employee’s refusal. The Union grieved their suspensions.

In reaching his conclusion, arbitrator Foley maintained that “The two employees’ refusal to provide the Divisional Inquiry with any information about the critical period has to be balanced against the Company’s legitimate business interests in obtaining their testimony about the critical period and then making public its complete report.” In balancing these interests, arbitrator Foley noted that the Employer had made no particular allegations of wrongdoing against either employee. Additionally, he maintained that any future repercussions resulting from testifying were far outweighed by the Company’s “legitimate entitlement to have available information about what occurred during the vessel’s voyage, so that it can make a full public disclosure on the incident.” Accordingly, the grievances were denied.

Implications and Conclusion

The extent to which this case will contribute to the larger debate about an employee’s obligation to explain remains to be seen. Arguably, almost anything can be categorized as a company’s legitimate business interest. That being said, arbitrator Foley seemed to inextricably link the Company’s legitimate business interest to a public purpose of full disclosure. And, when balancing the competing interests, the fact that neither employee had been criminally charged nor were either of them under investigation seemed particularly relevant.

How an arbitrator will apply the legitimate business interests exception in future cases is uncertain. For that matter, and on a more general level, it is also uncertain which line of authority an arbitrator will adopt when confronted with an employee’s failure to explain. This area of the law remains in a state of flux and BC Ferry has added uncertainty to this debate with its added element of “the legitimate business interest” of the Employer as balanced against the right of an employee to remain silent.

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First Decision under the Newly Amended Public Sector Labour Relations Transition Act: Board Protects Labour Relations Stability in Health Services Restructuring

By Patrick Groom

In the first decision to be issued under the newly amended Public Sector Labour Relations Transition Act, 1997 (PSLRTA), the Board ruled that there is "no doubt" that PSLRTA is intended to apply to restructuring in the health sector. The Ontario Labour Relations Board (OLRB), broadly interpreted the application of PSLRTA to various forms of restructuring in the health services sector.

This decision addresses union representation rights in the context of the recently-passed Bill 36 which introduced the Local Health Services Integration Act (LHSIA) and amended the PSLRTA. The LHISA provides a mechanism for the re-organization of the delivery of health services through Local Health Integration Networks (LHINs). Under this statute, the LHINs and the Minister of Health and Long Term Care have broad powers to integrate and in other ways restructure a wide variety of health services. The LHISA also contemplates that individual health service providers may voluntarily integrate their services with those provided by other providers.

The protections offered by the PSLRTA include the continued application of the original Collective Agreement to the newly restructured workplace for approximately one year. This helps protects unions during restructurings by keeping bargaining units intact, protecting union representation rights, and defining the collective agreement(s) that will apply to transferred bargaining units. This is also intended to save both unions and employers from having to litigate whether the restructured workplace is related to the previous employer. It also assists employers by allowing them to predict their costs and draw up their budgets for the newly restructured health services, as they know the labour costs in the applicable Collective Agreements.

This decision arose out of a Hospital restructuring in Thunder Bay, where the Thunder Bay Regional Health Sciences Centre (TBRHSC) was closed and all 60 of the interim long-term care beds were moved into another facility, the Thunder Bay Interim Long Term Care Centre (TBILTC). Central Care Corporation, which operates several nursing home and long-term care facilities in the region, took over the operation of the new facility. The nurses that worked at TBRHSC, represented by the Ontario Nurses' Association (ONA), were covered by the Union's province-wide Hospital Agreement, but the employer at TBILTC applied ONA's province-wide Nursing Home Agreement to the nurses at the new facility.

The Union applied to the OLRB for a determination whether the newly-modified PSLRTA applied to this Hospital restructuring. The Union argued that this restructuring between two heath service providers constituted a health services integration, and that the integration triggered the protections offered to the bargaining unit under the PSLRTA. OLRB Chair Whitaker agreed with ONA and declared that a local health integration had occurred and that the protections of the PSLRTA applied. In arriving at this conclusion, Chair Whitaker wrote:

"Very clearly there are significant labour relations consequences inherent in this particular transaction and more broadly in this class of transactions. These consequences require some process by which the effects on unions, employees, and employers can be rationally managed and resolved, by the provision of labour relations stability and to the benefit of all.

The PSLRTA makes it clear that the "sale of business" provisions in the [Labour Relations Act, 1995] do not apply to health services integrations. In the absence of the application of the PSLRTA, there is no statutory mechanism under which these types of changes can be managed in an orderly and predictable fashion."

This decision will help to protect heath sector workers' rights during the major upheaval that Ontario's health services system is presently undergoing. The Board recognized the significant labour consequences of health care services restructuring, and how PSLRTA is intended to manage the transition of bargaining units, and the rights of Unions and employees in an orderly and predictable fashion. This decision goes a long way to ensure that health care workers' rights will be protected in the future.

Liz McIntyre argued the case on behalf of the Ontario Nurses' Association.

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Internet Surfing and Facebook: Twice the Risk for Professionals

By Kate Hughes

Professionals should be warned that they face double the risk of others when found to be using workplace internet for inappropriate purposes. Professionals can be found to be in violation of School Board, Hospital, and other workplace policies and subject to discipline by Employers in workplaces, but as regulated professionals, they run the added risk of putting their professional licences at risk.

A number of Unions are warning their members to avoid using the social networking website, “Facebook”, personal blogs, or similar websites on the job. With respect to Facebook and other popular websites, young professionals in particular, who use such websites frequently may not fully appreciate that if they put inappropriate workplace jokes or images (or even state their opinions of their employers) on such websites or blogs, they are putting both their employment and professional licences at risk. There have been an increasing number of investigations and discipline imposed by Employers in Ontario and across the country relating to the misuse of such internet sites.

This new minefield of social networking websites adds to pre-existing cases where Employers like Government Ministries, School Boards, Academic Institutions, Hospitals, Nuclear Plants and others have performed audits resulting in discipline of professional employees who use workplace computers to access the internet to view or distribute offensive material such as pornography, sexist, racist or other inappropriate material.

Professionals who are most at risk are those who work with young persons, including teachers or health professionals who care for children. Numerous professional Colleges, have issued decisions imposing penalty ranging from revocation to lengthy suspensions:

  • In some cases involving teachers, there have been a number of revocations by the Ontario College of Teachers where teachers were found guilty of allegations dealing with surfing the net, downloading child pornography or other pornographic/offensive material. The College has found that teachers found to have accessed, downloaded or distributed pornography are “not suitable to be in a position of trust and authority over children” and have held they must impose the penalty of revocation.
  • In other cases involving child pornography or anything that could be construed as child pornography (such as trying to access questionable websites) have also resulted in harsh penalties short of revocation. For example, surfing the net and not actually downloading pornography will result in findings of professional misconduct. In the case of teachers, they often receive lengthy suspensions and must, at their own expense, attend sensitivity training that is monitored by the College’s registrar, and obtain psychological assessments. They must also provide reports prior to returning to the classroom to establish that there is no risk to students and/or the community. Other Colleges appear to be less harsh, generally imposing one to three months’ suspensions, publicizing the finding, as well as sometimes requiring counselling and monitoring.

Professional Colleges have found the professional guilty of both professional misconduct and “disgraceful, dishonourable and unprofessional conduct”. Professionals are no longer able to claim that they were not aware that such conduct is considered inappropriate. Professional Colleges take the position that professionals should know that such behaviour is considered unprofessional, even absent a specific publication of employer policy dealing with pornography in the workplace. Given that Colleges have now published decisions on their publications or website on internet misuse, Members of the College are deemed to know that such conduct is a transgression of Professional Standards.

Unlike at arbitration, Discipline Committees do not consider factors such as whether other professionals are engaging in similar conduct, whether there is widespread abuse in certain workplaces, or whether the Employer has condoned misuse of the internet. This type of evidence has been admitted at arbitration to convince Arbitrators to return employees to the workplaces where Employers have turned a blind eye to employees circulating jokes and accessing pornography during slow periods at work.

For instance, both the Ministry of Corrections and Ministry of Natural Resources of the Ontario Government performed a sweep of employees computers and a large number of employees were disciplined, and some terminated, for either receipt or distribution of pornographic material on work computers. Arbitrators adjudicating individual grievances have reduced discipline and returned employees to the workplace when they found that certain employees’ conduct was not more serious than the conduct of other employees, or where the Employer had known about such conduct and not acted on it previously. Professional Colleges do not enter into this line of reasoning.

Colleges consider mitigating certain circumstances, such as no prior discipline history, evidence of remorse, whether the member has insight into the problem, received therapy, and whether the matter was an isolated incident in the individual’s history. They also consider aggravating circumstances, such as whether the professional denied the unprofessional conduct when it was brought to their attention, whether the professional exposed other employees to the downloaded materials by distributing it, whether the professional attempted to implicate others, and whether the professional was well-regarded by their employer.

Even if the abuse of the internet is widespread or condoned in the workplace, this is not a defence recognized by Colleges. As well, Discipline Committees at Colleges will not decline to discipline because an employer has already taken disciplinary action. Professionals should be warned that they will face discipline proceedings likely not once, but twice, when found to have misused the internet.

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Arbitrator finds Hospital Violated the Privacy Rights of Nurses applying for Sick Benefits

By Sharan Basran

In a recent decision, an Arbitrator ordered a Hospital to stop requiring nurses to complete a form requesting excessive confidential medical information to qualify for sick leave benefits. Hamilton Health Sciences Centre and Ontario Nurses’ Association (October 5, 2007, G. Surdykowski) considers the fundamental privacy rights of employees in the context of the administration of sick benefits, and the limitations on what confidential medical information Employers may request from employees to justify receipt of sick benefits.

This case concerns the confidential medical information that the Hamilton Health Sciences Centre (“the Hospital”) required nurses to provide in an initial application for sick benefits. The Hospital decided to outsource the administration of the sick leave plan to a private sector company. The Company required every nurses who applied for sick benefits to submit a “Medical Certificate of Disability”. The Company stated that the provision of the consent and medical information on the form were mandatory. If a nurse did not complete the form, nurses were advised they would not be entitled to sick benefits.

The Ontario Nurses’ Association challenged two aspects of the form: a consent signed by the nurse authorizing individuals to release medical information to the Company, and the medical information required on the form:

  • The Medical Certificate required a nurse to sign a blanket consent that had few limitations, both in terms of the persons to whom the consent related, and the extent of information that could be released. The form requested a nurse to sign a consent that allowed any party involved with the treatment of the nurse, including a health care professional, WSIB, or an Automobile Insurer to disclose information to the Company. The consent did not restrict what medical information could be disclosed, so long as it related to the claim for sick benefits.
  • The form also required the nurses’ physician to provide extensive and detailed medical information on a whole host of issues, including diagnoses, symptoms, medical history, findings of medical investigations, treatment and prognosis.

The Arbitrator commenced his decision by situating the dispute within the legal context of privacy rights. He recognized that “...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”. The Arbitrator ultimately found that the Hospital violated the privacy rights of nurses and the Collective Agreement by requiring medical information far in excess of what was necessary for a routine application of sick benefits.

In arriving to this conclusion, Arbitrator Surdykowski confirmed general principles of arbitral law respecting sick leave:

  • Employers are only entitled to limited information in the initial application for sick leave benefits in the absence of a Collective Agreement provision providing otherwise. Practically, this would mean an employee is only required to provide medical certification of illness or a medical certificate verifying that the employee is unable to work because of illness.
  • Employers are generally not entitled to other more detailed information such as diagnosis, a description of symptoms, medical history, treatment plan, unless the Collective Agreement specifically requires employees to disclose such information, or the employer has reasonable grounds to question the accuracy of information provided by an employee in an individual case.

In applying these principles to the situation faced by nurses at Hamilton Health Centre, the Arbitrator reviewed the Collective Agreement, and held that the Hospital was not entitled to more than a basic medical certificate verifying an employee’s absence due to illness. The Hospital was not entitled to require highly detailed, invasive, and confidential medical information on its application form for sick benefits, such as the employee’s medical condition, history, treatment. The Hospital could only obtain such extensive medical information if it had a demonstrable basis to doubt the accuracy of the medical certificate provided.

The Arbitrator also found that the blanket consent that nurses were required to sign was too far reaching and also violated the Collective Agreement. The case set out guidelines for the provision of consent:

  • The Arbitrator found that the unrestricted access on the certificate to all information concerning any medical condition relative to the claim, went beyond the permissible bounds of disclosure. He found that generally any consent requested by an Employer must be limited to that medical information an employee would otherwise be entitled to or required by law for a sick claim, and to the purpose for which it is sought (for a particular claim of sick benefits). In other words, the consent cannot be used as a means to obtaining indirectly what could not be obtained directly from the medical certificate.
  • The Arbitrator found that the “basket” consent on the form, that did not identify the specific health care professional, and allowed the Hospital to receive medical information from anyone involved in treatment was not appropriate. The consent ought to be limited to the treating physician and a separate consent ought to be required for each physician.
  • The Arbitrator found that the potential for unrestricted and direct contact between the Hospital and her/his treating physicians without the knowledge of the employee, as provided for in Medical Certificate, was improper. He held that in general every contact between an administrator and a physician, should be through 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


At a time, when Canadians are faced with an increasingly aging workforce amongst health care professionals, who are more susceptible to becoming ill, this case is of significant importance to ensuring that the privacy rights of employees are not disregarded through invasive access to confidential medical information. Employers must be conscientious in administering sick benefit plans in a manner that restricts its access to limited medical information necessary to establish a claim for sick benefits. In the normal course, this means that Employers are only entitled to basic medical information establishing impairment and not the particulars of the medical condition. This case sends the message that Employers seeking other extraneous or intrusive medical information that interferes with the privacy rights of employees will not be tolerated.

Kate Hughes represented the Ontario Nurses Association.

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New Rules of Practice for the Health Professions Appeal and Review Board

By Mia London

The Health Professions Appeal and Review Board (“HPARB”) has recently announced new Rules of Practice governing its reviews, appeals, and hearings. HPARB is the statutory tribunal whose mandate is to review certain decisions made by the Complaints and Registration Committees of the Regulated Health Colleges. When it receives a request for a review by either the Member or the Complainant of a decision of a College’s Complaints Committee, it has the power to review the decision provided that there has not been a referral to the Discipline Committee or to the Executive Committee for a potential referral to the Fitness to Practice Committee.

HPARB has the power to confirm all of part of the decision. If it finds that the investigation has been inadequate or the decision unreasonable, it has the power to make recommendations to the Complaints Committee or to require the Complaints Committee to take any action it should have taken other than to request the Registrar to conduct an investigation.

The Rules of Practice have been updated and revised to be clearer and more accessible to members of the public. Cavalluzzo Hayes Shilton McIntyre and Cornish has extensive experience in representing regulated health professionals. For advice regarding the new Rules of Practice or for questions about specific requests for reviews or appeals at HPARB, please contact Mia London.

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Update for Professionals Archives | Cavalluzzo website | Human Rights Update

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