A BC arbitrator recently imposed conditions restricting the pre-hearing disclosure of an employee’s medical and psychological records on the grounds of protecting the grievor’s privacy interests. The issue before the arbitrator was the grievor’s entitlement to short term disability benefits. The records in dispute disclosed a medical and psychological history involving prior sexual and physical abuse.
The employer made a pre-hearing application for disclosure of the records, arguing that, as a general rule of practice in collective agreement arbitration, all medical and psychiatric evidence should be disclosed without conditions, other than that the documents be used solely for the purposes of the litigation. The union took the position that disclosure of such evidence should be subject to restrictions designed to protect an individual’s personal privacy and right to security of the person under Section 8 of the Canadian Charter of Rights and Freedoms.
The arbitrator found that the issue of the grievor’s entitlement to disability benefits raised “past and current issues of post-traumatic stress arising from [the grievor’s] previous childhood memories and workplace events”. He determined that the disputed records were relevant to this issue. However, he concluded that, given the grievor’s privacy interests, it was not unreasonable for the union and the grievor to have the opportunity to review the records and to delete irrelevant material. Any information considered “borderline” as to relevancy would have to be disclosed. Further, the employer would have the right to question and receive an explanation for the deletion of any particular material.
The arbitrator imposed the following additional terms on his interim order for disclosure of the records:
- only counsel for the employer and its medical experts could view the unedited records;
- any person viewing the records would have to keep the contents confidential;
- the records would be used only for the purposes of the hearing;
- only one copy of the records would be made;
- all of the records would be destroyed at the conclusion of the hearing; and
- either party would be entitled to apply to re-examine the conditions if circumstances warranted.
British Columbia v. British Columbia Government and Service Employees’ Union (M.B. Grievance),  BCCAAA No. 85, March 26, 2004, (Lanyon).