IN THE MATTER OF AN ARBITRATION

BETWEEN:
HALIFAX EMPLOYERS ASSOCIATION
(the Employer)
-andTHE HALIFAX LONGSHOREMENS ASSOCIATION, LOCAL 269 ILA
(the Union)

RE: GRIEVANCE NUMBER: 2014-L-39

APPLICATION AND ADMINISTRATION OF
THE SUBSTANCE ABUSE PROGRAM

ARBITRATOR:

MICHEL G. PICHER

APPEARANCES FOR THE EMPLOYER:

Brian G. Johnston, Q.C.
- Counsel
Rick Dunlop
- Counsel
Richard Moore
- President and Chief Executive
Officer, HEA
Angela Charlton
- Representative for the HEA
Kevin McCabe
- Representative for the HEA
APPEARANCES FOR THE UNION:
Ronald A. Pink, Q.C.
- Counsel
Bettina Quistgaard
- Counsel
Kevin Piper
- President, ILA Local 269
Craig Messervey
- Vice-President, ILA Local 269
Brad McCrate
- Union Executive, ILA Local 269
Ronald Hill
- Union Executive, ILA Local 269
Employee M
- Member, ILA Local 269
A hearing in this matter was held in Halifax, Nova Scotia on
April 21, 2015.

AWARD
This arbitration concerns a grievance filed by the Union which represents a
substantial challenge to the administration of the Employers Substance Abuse
Program, and in particular to the referral of employees to counselling by a counsellor
referred to herein as Counsellor J. The nature and scope of the grievance is best
reflected in the text of the grievance itself which reads as follows:

This grievance concerns the HEAs application and

administration of the Substance Abuse Program (SAP)
under the HEA Policy on Employee Safety and Assistance
which is in violation of the Collective Agreement and the
Personal Information Protection and Electronic Documents
Act (PIPEDA).
The Union and affected employees grieve the following
aspects of the HEAs application and administration of the
SAP:
(1)

The HEAs mandatory referral of bargaining

unit employees who test positive for drugs
and/or alcohol to [Counsellor J], who is not
properly trained or qualified to either assess
whether an employee is dependent on drugs
and/or alcohol or recommend an appropriate
treatment program;

(2)

The
mandatory
requirement,
on
recommendation by [Counsellor J], that
employees attend counseling sessions with
[Counsellor J], which is inappropriate and gives
rise to a conflict of interest; and

(3)

The indiscriminate and excessive disclosure to

the HEA, and collection and use by the HEA, of
personal information about employees who are
referred for assessment and substance abuse
treatment, which is an unwarranted intrusion
into employee privacy, and extends far beyond
1

the consent given by employees on the

Referral Form.
By these actions, the HEA is acting arbitrarily, unreasonably
and beyond the scope of its Management Rights. The HEA
is in violation of Articles 2.03 (Management Rights), 13.02
(Return to Work from Illness or Disability), and any other
applicable provisions of the Collective Agreement. The
improper and excessive disclosure, collection and use of
personal information is a violation of PIPEDA.
Relief Sought:
By way of remedy, the Union and affected employees
request the following:
(1)

A declaration that the HEAs actions are in

violation of the Collective Agreement;

(2)

An order that the HEA never again refer any

bargaining unit member to [Counsellor J] for
assessment and/or treatment;

(3)

An order that all reports and communications

from [Counsellor J] to Shepell.fgi and/or the
HEA concerning affected employees be
removed from employee files and destroyed;
and

(4)

For each affected employee, damages for

mental distress;

(5)

Lost wages for employees

diagnose[d] as dependent.

who

were

It is noted that the Union did not pursue in the arbitration the alleged violation of either
article 13.02 or any other additional provision of the collective agreement.

1.

BACKGROUND:

Certain material facts do not appear to be disputed. Pursuant to article 2.03 of

the Collective Agreement, the Management Rights clause, within its Policy on Employee
Safety and Assistance, the HEA adopted and applied the Substance Abuse Program
(SAP) and the Structured Relapse Protection Program (SRPP) which are part of the
Employee Assistance Program (EAP). It appears that since February of 2007 HEA has
contracted for EAP services with Medavie Blue Cross, which itself has subcontracted to
an EAP provider, Shepell-FGI Consultants Corp.

Of significance for the instant case is the monitored referral program,

contemplated within the policy as the Monitored Referral Procedure (MRP). The MRP,
described as one of the EAP services made available under the HEA-Medavie contract,
deals with the role of the EAP Co-ordinator, which in the case at hand was Counsellor J,
as reflected in sections 6.1 6.3 of the policy, as follows:
x
x

The EAP Coordinator, [which is Shepell-FGI], will assess, or

have assessed each Employee referred to EAP pursuant to
the provisions of this Policy.
The EAP Coordinator may, in consultation with other
professionals who may be involved in the Employees
rehabilitation program, design an individualized treatment
program for the Employee
The EAP coordinator will report to the HEA on a regular
basis in order to confirm that the Employee is meeting the
requirements of any EAP, aftercare or treatment program
(the Program) in which the Employee may be participating
and which may be a condition of the Employees return to
work.

The MRP includes the SAP, which is applied when an employee tests positive for
drugs and alcohol, as well as the SRPP, a long term follow-up program to prevent
relapses.

The HEA policy on Employee Safety and Assistance (ESA) contains a number of
provisions respecting the EAP. Paragraphs 6.1 and 6.3 of the policy make specific
reference to the role to be played by the EAP Coordinator, as reflected in the following
provisions:

6.1

6.3

The EAP Coordinator will assess, or have assessed,

each Employee referred to EAP pursuant to the
provisions of this Policy. The EAP Coordinator may,
in consultation with other professionals who may be
involved in the Employees rehabilitation, design an
individualized treatment program for the Employee
(the treatment program). During the time that the
Employee is participating in the treatment program,
and to the extent that such participation requires the
Employee to be off work, the Employee will be
excused by the HEA to attend provided that:
(a)

the Employee fully complies with the

requirements of the treatment program; and

(b)

the [Employee] does not otherwise violate any

of the provisions of this Policy.

The EAP Coordinator will report to the HEA on a

regular basis in order to confirm that the Employee is
meeting the requirements of any EAP, aftercare or
treatment program (the Program) in which the
Employee may be participating and which may be a
condition of the Employees return to work. In the
event that an Employee is not meeting the
requirements of the Program, including having a
Positive Drug Test or a Positive Alcohol Test during
the course of the Program, or [otherwise] is in
4

violation of this Policy, the Employee may be subject

to disciplinary measures, up to and including
discharge.
At all times material to this grievance the EAP Coordinator was Counsellor J who
was retained by Shepell-FGI.

As part of his submission counsel for the Union draws to the attention of the
Arbitrator certain provisions of the delivery agreement made between the HEA and
Medavie Blue Cross, dated February 1, 2007, in respect of what is referred to as the
inConfidence Employee Family Assistance Program.

The inConfidence program,

administered by Medavie Blue Cross, contains, in part, the following description under
section 2.0 General Services in which, it does not appear disputed, the HEA was a
Plan Sponsor:

inConfidence is intended to guide, counsel and

assist Eligible Users who, independently on their own
initiative, seek assistance from inConfidence; and
where it is appropriate to refer Eligible Users for
specialized additional guidance, counseling and
assistance to specialists and community resources.
There will be no mandatory referrals by the Plan
Sponsor.
At the request of the Plan Sponsor the EFAP will
provide a monitored referral procedure (MRP) which
will enable the Plan Sponsor to assist certain Eligible
Employees who need professional counseling, to
access inConfidence (in accordance with the
provisions of Section 3.7).
Medavie Blue Cross, the Plan Sponsor and the
Service Provider will adopt and maintain safeguards
to ensure the inConfidence counseling is conducted
5

in a manner designed to preserve the privacy of

Eligible Users and to ensure that conversations and
other contacts between the Service Provider and
Eligible Users are kept confidential.
Employee
counseling, except traumatic response counseling,
will not be rendered on the Plan Sponsors premises.

With respect to the quality of HEAs program, its counsel notes that the HEA has
at all times contracted with a recognized provider of benefits, having assigned the
administrative delivery of the EAP to Medavie Blue Cross, which itself contracted with
Shepell-FGI, which administers a reputable EAP known as inConfidence. Further to the
execution of that standard, he notes that the contract between HEA and Medavie Blue
Cross expressly recognizes that Shepell-FGI is a duly qualified assistance plan
provider, fully certified under the Employee Assistance Society of North America and
accredited with the Council of Accreditation.

2.

POSITION OF THE UNION:

The substance of the Unions grievance is that Counsellor J lacked the proper

qualifications, experience, expertise and competence to properly fill the role of EAP
Coordinator. The fundamental position of the Union is that by retaining and utilizing the
services of Counsellor J the HEA effectively violated the privacy and confidentiality
rights of the employees who were dealt with by Counsellor J at the behest of the HEA.

a.

Position of the Union Regarding the Qualifications of Counsellor J:

It does not appear disputed that at one point in time Counsellor J was a member of
the Canadian Counselling and Psychotherapy Association. As related by the Union, his
credentials as a member of the Association were as follows:
x
x
x

M. Ed., RPC (Registered Professional Counsellor),

MPCP (Master Practitioner of Counselling Psychology),
CCPCP (Canadian College of Professional Counsellors
and Psychotherapists).

The Union takes exception to what it characterizes as the limitation of Counsellor

Js qualifications.

It stresses that he did not qualify as a specialist in addictions

counselling and was not certified as an alcohol and drug counsellor from the Canadian
Addiction Counsellors Certification Federation.

He was not, the Union stresses,

registered or licenced under the Nova Scotia Counselling Therapists Act or the Nova
Scotia Psychologists Act. The Unions position is that Counsellor J was not trained or
qualified to assess an employees dependence on drugs or alcohol, or to make
appropriate recommendations in respect of treatment programs.

b.

Position of the Union Regarding an Alleged Conflict of Interest in

Counsellor Js Role as Counsellor:
The Union takes particular exception to the fact that on a number of occasions

Counsellor J assessed employees who had been referred to him, found them to be
dependent on drugs or alcohol and then recommended that they attend counselling
sessions with him. The duality of those roles, that of assessment and treatment, in the
Unions view, constituted a conflict of interest contrary to ethical standards which govern
the practice of counsellors and psychotherapists. Counsel for the Union described the
7

by-product of these allegedly conflicting roles as a cash cow, citing as an example

Counsellor Js dealings with Employee M, requiring the employee to attend for
counselling with himself on a once a week basis for a substantial period of time.

c.

Position of the Union Regarding Alleged Breaches of Confidentiality in

Reports Issued to the HEA:
Counsel for the Union submits that the actions and practices of Counsellor J and

the sharing of personal and confidential information with the HEA through Counsellor Js
reports constitute a violation of the Personal Information Protection and Electronic
Documents Act (PIPEDA), S.C. 2000, c. 5. Counsel refers the Arbitrator to certain
principles found within the model code for the protection of personal information under
PIPEDA which, he submits, govern the HEA as reflected in paragraphs 4.2.4, 4.3.2 and
4.4.1 of the principles established under the model code for the protection of personal
information. Counsel summarizes those principles as follows:
x

The purposes for which personal information is

collected must be identified by the organization at or
before the time the information is collected: Principle
2.
This allows organizations to determine the
information they need to fulfill these purposes: 4.2.2.
If information is to be used for some other purpose
not previously identified, the new purpose must be
identified prior to use: 4.2.4.
The knowledge and consent of the individual are
required for the collection, use, or disclosure of
personal information: Principle 3. Organizations must
make a reasonable effort to ensure that the individual
is advised of the purposes for which the information
will be used to make consent meaningful: 4.3.2.

The collection of personal information shall be limited

to that which is necessary for the purposes identified
by the organization. Information shall be collected by
fair and lawful means: Principle 4. Organizations
shall not collect personal information indiscriminately:
4.4.1. Both the amount and the type of information
collected must be limited to that which is necessary to
fulfil the purposes identified: 4.4.1.

The Union maintains that Counsellor J improperly shared intimate and personal
information about employees, including their personal histories, relationships and
personal health issues. By way of example for its allegation of questionable reporting
on the part of Counsellor J and the violation of his obligation of confidentiality, counsel
draws to the Arbitrators attention Counsellor Js report in respect of Employee M.
Counsel stresses that Counsellor Js report to the HEA contains clearly confidential
information with respect to the employees personal and family relations including,
among other things, express reference to his recent diagnosis and lung surgery dealing
with cancer. The Union emphasizes that Employee M did not wish to have revealed to
the HEA either his cancer diagnosis or his surgery. Counsel vehemently submits that
conveying that information to the Employer violates the standard of confidentiality and
ethical dealing which should have governed the actions and reports of Counsellor J. In
the Unions submission the information related to the HEA by Counsellor J far exceeded
the scope of information consented to by employees on the standard consent form for
the release of information to the HEA.

d. The Union Position Regarding Alleged Unprofessional Conduct by

Counsellor J as Revealed by the Location of his Office:
One of the unprofessional attributes ascribed to Counsellor J by the Union is the
fact that, in the Union' view, he did not maintain a proper office. Counsellor J conducted
counselling sessions in the living room of his home, which is something that the Union
submits caused discomfort to the employees who, it stresses, felt required to comply
with Counsellor Js approach as a condition of maintaining their employment.

e. The Unions Position Regarding Alleged Breaches by Counsellor J of

the Employees Entitlement to Privacy In Respect of their
Counselling:
It appears that Counsellor J assessed Employee M as alcohol dependent and
recommended that he attend weekly two-hour sessions with Counsellor J for a period of
over a year. The Will Say Statement of Employee M relates, among other things, that
some of his sessions with Counsellor J involved going to public locations such as Tim
Hortons or Home Depot and, on one occasion, walking on the waterfront.

In his

statement filed with the Arbitrator, Employee M comments, in part:

When we were out together, I always felt uncomfortable,
especially at Tim Hortons. One of the Tim Hortons we went
to was one that my father goes to. I was always terrified of
running into people I know. A couple of times we did, and I
didnt know how to introduce [Counsellor J]. Again, there
was no confidentiality.
The Arbitrator notes that in Counsellor Js Will Say Statement he did not dispute having
dealt with Employee M in public places, such as Tim Hortons and Home Depot, and
stated that he viewed those opportunities as positive for dealing with Employee Ms
discomfort at being in public places.
10

f.

Position of the Union Regarding Counsellor

Unprofessional Communications with Employees:

Js

Alleged

The Union has filed with the Arbitrator a number of employees statements which
contain examples of the alleged indiscretions by Counsellor J. By way of one example,
among others, Employee M relates that upon learning that he had no lock on his door at
home Counsellor J proceeded to comment:

What if you are in the bathroom

[masturbating], your roommate could come in and catch you anytime. It is noted that in
his own Will Say Statement Counsellor J categorically denies having made that
statement.

Another example of the Unions view of the verbal indiscretions of Counsellor J

concern Employee E and Employee C. It appears that Employee E, who was assessed
by Counsellor J as drug dependent, was present on Counsellor Js premises when the
latter proceeded to answer the telephone and speak with employee C about that
employees highly personal matters, all of which was overheard by Employee E.

g.

Position of the Union Regarding the HEAs Claim of Estoppel:

Counsel for the Union rejects the suggestion of the HEA that the doctrine of
estoppel should apply to the grievance by reason of what the Employer views as the
Unions consistent acceptance of Counsellor J over the years. Counsel submits that
acquiescence or estoppel cannot be grounded where, as in the instant case, there was
no actual knowledge on the part of the Union with respect to the actions and misconduct
which are the basis of the instant grievance. There was not, he submits, any knowing
acquiescence to Counsellor J, to his actions or to the disclosure, collection and use of
11

personal information. In that circumstance, counsel submits that estoppel simply does
not apply as a bar to the instant grievance. Additionally, he maintains that individual
acquiescence by Union members cannot ground an estoppel against the Unions own
grievance. In that regard he cites Re Skeena Sawmills and International Woodworkers,
Local I-71, (1988), 5 L.A.C. (4th) 214 (Bird). Additionally, counsel asserts that estoppel
cannot be raised as a bar to statutory rights, citing Re British Columbia Institute of
Technology and British Columbia Government & Service Employees Union, (1997), 62
L.A.C. (4th) 168 (Kelleher).

Finally, with respect to the Union having agreed to

Counsellor Js services being included under a last chance agreement for Employee
C, the Union reflects that it made no objection to the selection because that
arrangement was acceptable to the employee in question.

Further authorities on the issue cited to the Arbitrator by the Union include the
following: Re Taggart Services Ltd. and United Food & Commercial Workers Union,
Local P818, (1989), 6 L.A.C. (4th) 279 (M.G. Picher); Canadian National Railway and
Teamsters Canada Rail Conference (Love), (2013), 240 L.A.C. (4th) 100; Alberta v.
Alberta Union of Provincial Employees (Privacy Rights Grievance), [2012[ A.G.A.A. No.
23; Re Molson Breweries and Canadian Union of Brewery and General Workers,
(2005), 142 L.A.C. (4th) 84; Nammo v. TransUnion of Canada Inc., [2012] 3 F.C.R. 600
and Chitrakar v. Bell TV, [2013] F.C.J. No. 1195.

h.

Position of the Union Regarding Remedy:

12

In light of what it characterizes as extensive violations of the rights of its

members by the practices and actions of Counsellor J, the Union seeks the following
remedy. It asks for an order that all of the reports and communications of Counsellor J
made either to Shepell-FGI or to the HEA be removed from employee files and
destroyed, with certification of such removal and destruction. The Union then asks that
damages for mental distress and harm to dignity and privacy be granted to each
affected employee, which damages should be substantial, particularly in the case of
Employee M. Additionally, the Union seeks for the affected employees compensation
for any lost wages by reason of lost work opportunities resulting from recommendations
of Counsellor J which caused those employees to attend counselling sessions,
treatments or other programs.

The Union disputes the assertion of the HEA that any remedy must be limited to
the seven day period prior to the date of the grievance. It stresses that the breaches of
the collective agreement and PIPEDA which are the subject of this dispute are in fact
ongoing, with certain personal information in dispute having been seen by Employer
representatives and remaining in employee files. Nor, the Union argues, is it possible to
cut off any remedy in respect of emotional or psychological distress which accumulated
over time, as it affected the employees, to a period of harm limited to seven days before
the date the grievance was filed. Counsel stresses that the Employer was aware as
much as four years ago of one employees alleged inappropriate encounters with
Counsellor J.

Alternatively, counsel argues that compensation for lost work

opportunities should run from the time the Union first raised concerns about Counsellor

13

J with the Employer, referring to a conversation in the spring of 2014 between Union
Local President Kevin Piper and Ms. Nadine Wentzell, a consultant to the HEA.

3.

POSITION OF THE HALIFAX EMPLOYERS ASSOCIATION:

a.

Position of the HEA Regarding Alleged Inarbitrability:

The HEA asserts that certain of the allegations made by the Union are
inarbitrable. In that regard it identifies paragraphs 19, 20, 21, 25, 26, 27, 28 and 30 of
the Unions Statement of Issues submission as being improperly advanced. Paragraph
19 deals with the fact that Counsellor J conducted counselling sessions in the living
room of his private home, which allegedly made employees uncomfortable. Paragraph
20 is the allegation that Counsellor J asked employees questions in relation to their sex
lives which were allegedly irrelevant. Paragraph 21 implicitly suggests a conflict of
interest in that employees were required by the HEA to see Counsellor J in furtherance
of the counsellors own recommendations.

Paragraph 25 touches on the fact that

Counsellor J allegedly violated confidentiality by conducting a number of therapy

sessions out of his office, including public places such as Tim Hortons restaurants,
Home Depot and public walking areas.

Paragraph 26 goes to the allegation that

Counsellor J made Employee M uncomfortable by insisting on driving Employee M to

counselling sessions. Paragraph 27 alleges that during those sessions with Employee
M Counsellor J made inappropriate references to masturbation and other sexual
activities and that he helped Employee M in and out of his coat in a manner which was
overly intimate. Paragraph 28 concerns a statement of the stress felt by Employee M
and the suggestion that Counsellor Js sessions in fact prompted him to relapse in the

14

management of his dependency condition.

Paragraph 30 relates that Employee E,

having completed an outpatient detox program, refused to deal with Counsellor J any
longer by reason of his alleged unprofessional conduct, which included the counsellor
talking openly to another client on the phone while Employee E was present. Employee
E was eventually referred to another counsellor.

b.

Position of the HEA Regarding the Qualifications of Counsellor J:

The HEA categorically asserts that Counsellor J is qualified for the counselling
tasks which were assigned to him and was recognized as such by Shepell-FGI. In
support of that assertion the HEA cites the following qualifications held by Counsellor J:
x
x
x
x
x
x

a masters degree in education;

over 25 years of experience working in a counselling setting;
a member in good standing with the Canadian Counselling
and Psychotherapy Association;
a member in good standing with the Canadian Professional
Counsellors Association;
completion of a 1 year internship with the Nova Scotia Drug
Dependency Commission; and
employment for 30 years with Corrections Services of
Canada during which he was involved in the coordination of
substance abuse cases with the inmate populations.

The HEA stresses that the Union has cited no legislative, regulatory or medical
basis for its position that a person in Counsellor Js position must be a specialist in
addiction counselling to be qualified for the work that he does and contends that nothing
in the Nova Scotia Counselling Therapists Act or the Nova Scotia Psychologists Act

15

would prohibit Counsellor J from providing the counselling services which he does. Nor,
counsel emphasizes, did Counsellor J ever hold himself out as a psychologist or purport
to practice psychology, contrary to the Psychologists Act.

As well, with respect to the Unions assertion that Counsellor J was not properly
trained to assess whether an individual is dependent on drugs and/or alcohol, the HEA
notes that no individual was in fact identified by the Union who was allegedly improperly
assessed as dependent by Counsellor J. In that regard counsel points to documented
confirmation of the substance abuse and dependence status of a number of employees
dealt with in the material placed before the Arbitrator including Employee C, Employee
M, Employee E and Employee N.

Accordingly, the HEA stresses that Counsellor J was at all material times a
qualified counsellor in accordance with the standards of the Canadian Professional
Counsellors Association and the Canadian College of Professional Counsellors and
Psychotherapists and strongly disputes the Unions suggestion that there was any
impropriety in the HEA utilizing Counsellor J or in providing his services to employees.

c.

Position of the HEA Regarding an Alleged Conflict of Interest in his

Role as Counsellor:

The Employer rejects the suggestion of any conflict of interest on the part of
Counsellor J on the basis that he himself counselled employees following his own
assessment and recommendations.

The HEA stresses that Counsellor J never

16

recommended himself as necessarily being the person to provide counselling and that
in all cases it was Shepell-FGI which independently made the determination as to
whether an employee should be counselled by Counsellor J, following Counsellor Js
assessment of that individual.

d. Position of the HEA Regarding Alleged Breaches of Confidentiality

Relating to Disclosures Made in Reports to the HEA:
The HEA disputes the Unions allegations with respect to the alleged excessive
disclosure of personal information to the HEA by Counsellor J. With respect to the
impugned action of Counsellor J in revealing to the HEA that Employee M had been
diagnosed with lung cancer, the HEA responds that the disclosure was in keeping with
section 5(3) of the Personal Information Protection and Electronic Documents Act,
(PIPEDA) which provides as follows:

5. (3) An organization may collect, use or disclose personal

information only for purposes that a reasonable person
would consider are appropriate in the circumstances.
Counsel submits that the information provided to HEA by Shepell-FGI was
expressly contemplated in the consent sections of the Referral Forms for the Substance
Abuse Program and Structured Relapse Prevention Program of the Unions members.

Based on the precedent of PIPEDA case summary number 287, the HEA argues
that the collection of what might otherwise be viewed as sensitive personal information
may be justified in the context of ensuring safety where the employee in question

17

occupies a safety sensitive position. In that regard, the HEA suggests that the cancer
diagnosis of Employee M could fairly be viewed as an impediment to the resolution of
his substance dependency, having regard to his history.

In the foregoing context counsel stresses that the HEA is responsible for the
safety of employees in a substantially safety sensitive workplace. That, he submits,
raises critical sensitivities with respect to the circumstances of substance dependent
employees who may be at risk of relapsing. Counsel stresses that the potential for
relapse was in fact part of a substantial argument made by the Union in a submission
made to the Arbitrator in respect of another employee who grieved his dismissal,
Employee AC.

With respect to the disclosure of information concerning the individual employees

to the HEA, its counsel further draws to the Arbitrators attention what it views as
elements of consent by employees to the release of their personal information to the
HEA. That consent, he submits, flows from section 7(1) of PIPEDA as well as clause
4.3 of the schedule of PIPEDA. By way of example, reference is made to Employee M
who signed an SAP Referral Form which confers that the HEA representative is to
receive information in respect of attendance, assessment results, treatment
compliance/completion, random drug testing recommendations and other information as
may be specified. Further, the SRPP Referral Form, such as was signed by Employee
M, expressly provides that certain forms of information will be provided to an HEA
representative, including such matters as attendance, treatment goals, treatment

18

compliance, case concerns, progress and impediments for resolution, referrals to

outside resources to address the problem and aftercare recommendations.

Essentially, the HEA submits that it is entitled to know of circumstances which

could trigger a relapse in an employee who has been found to have a dependency. The
HEA argues that the information which was related to HEA in respect of Employee Ms
cancer diagnosis and surgery was proper and relevant, since Employee Ms cancer
condition could properly go to the issue of a potential relapse in respect of his
dependency problem with alcohol. In those circumstances, the HEA submits, it was not
indiscriminate or excessive for Counsellor J to disclose to the HEA Employee Ms
cancer diagnosis, since it could have impacted the resolution of his substance
dependency and possibly triggered a relapse.

e.

Position of the HEA Regarding Its Claim of Estoppel:

In an alternative submission, the HEA raises the doctrine of estoppel in respect

of the grievance to assert that the Union should not be permitted to now take a wholly
different position from the position it has consistently taken over years with respect to
Counsellor Js qualifications and the HEAs utilization of his counselling services. The
HEA asserts that for many years, without any apparent objection until the grievance was
filed on April 17, 2014, the Union acquiesced in all elements of the HEAs utilization of
Counsellor J as its EAP Coordinator, which included his making assessments of Union
members and then subsequently providing the recommended treatment and
counselling. The HEA further emphasizes that the acceptance of Counsellor J was

19

evidenced as recently as April 3, 2014 when it approved of Counsellor J as an

acceptable counsellor in the terms of a last chance agreement as part of a settlement in
the case of Employee AC.

Reference is made by the HEA to communications between the Union Locals

President and the President of the HEA concerning the Union Local Presidents own
involvement in communicating with Counsellor J in relation to a particular Union
member. Counsel for the HEA stresses that during his discussions with the HEAs
President, the Union Locals President gave no indication that the Union had concerns
in relation to the qualifications or services of Counsellor J. According to counsel, at
most a passing reference to concerns with Counsellor J may have been made in the
winter of 2014, but following that, on April 3, 2014, the Union Locals President signed a
last chance agreement which expressly designated Counsellor J as the individual who
would deal with an employee in difficulty, highlighting that it was the Union Locals
President who made the specific suggestion regarding Counsellor J. Additionally,
counsel for the HEA emphasizes that by the very nature of the services provided by
addiction counsellors, the HEA has no knowledge whatsoever of the details of
counselling sessions and the services being provided by the counsellor.

With respect to the HEAs assertion of an obligation on the part of the Union to
clearly and promptly express its concerns or objections to the manner in which an
employer has proceeded reference is made to the decision of Arbitrator Weiler in Re
Corporation of the City of Penticton and Canadian Union of Public Employees, Local

20

608, (1978), 18 L.A.C. (2d) 307 (Weiler). Reference is further made to the decision of
Arbitrator MacDowell in Re Consolidated-Bathurst Packaging Ltd. and International
Woodworkers of America, Local 2-242, (1982), 6 L.A.C. (3d) 30 (MacDowell).

Counsel points out that it was only with the filing of the grievance on April 17,
2014 that the HEA was first advised that the Union believed that Counsellor J was
unqualified, was in a conflict of interest position and improperly disclosed personal
information to the HEA. Its counsel stresses that the HEA was therefore deprived of the
ability to address alleged problems with Counsellor J prior to the filing of the grievance
on April 17, 2014.

Counsel for the HEA submits that the Unions failure to object to Counsellor J
until April of 2014 and its specific agreement to him as the designated counsellor for an
employee in a settlement agreement made on or about April 3, 2014, amounts to a
representation by the Union that in its view Counsellor J was acceptable. Counsel
maintains that the HEA has effectively relied, to its detriment, on what for all purposes
was conduct and representations by the Union to the effect that Counsellor J was in fact
generally acceptable to the Union. (On the question of detrimental reliance further
reference is made to the affirming decision of the Supreme Court of Canada in Nor-Man
Regional Health Authority Inc. v. Manitoba Assn. of Health Care Professionals, 2011,
S.C.C. 59; Nor-Man Regional Health Authority Inc. v. Manitoba Assn. of Health Care
Professionals [2011] 3 S.C.R.) 616.) The HEAs counsel submits that the fact that no
meaningful protest was made to the HEA with respect to Counsellor J prior to the filing

21

of the grievance effectively prevented the HEA from considering and dealing with the
issue. It was only when the HEA became aware of certain Union objections to
Counsellor J that it was able to immediately take steps, without prejudice, to assign a
different counsellor.

Finally, counsel for the HEA maintains that in all the circumstances, given the
Unions consistent acceptance of Counsellor J over the years, it should be concluded
that the Unions motivation for filing the grievance was solely an attempt to have
negative employee reports filed by Counsellor J thrown out so they would all get their
jobs back.

h.

Position of the HEA Regarding Remedy:

In respect of the remedy requested by the Union, counsel for the HEA notes that

the Unions request that the HEA not refer any further bargaining unit members to
Counsellor J is now academic, given that the HEA has, without prejudice, ceased to
refer employees to Counsellor J. With respect to the request for an order that reports
and communications from Counsellor J concerning all employees be removed from the
employee files and destroyed, counsel submits that such an extraordinary order could
only be justified if the Union has shown that the reports in question are inaccurate or
otherwise tainted by reason of Counsellor Js alleged deficiencies, something that
counsel submits has not been established in this matter.

22

As regards the Unions request for damages for mental distress for employees
counselled by Counsellor J, the HEA draws to the Arbitrators attention judicial
precedents which indicate the need for medical evidence and/or documentation to
establish the alleged distress. In that regard reference is made to the decision of the
Supreme Court of Canada in Keays v. Honda Canada Inc., [2008], S.C.C. 39, as well as
Macdonald-Ross v. Connect North America Corp., (2010), CarswellNB 373.

Counsel for the Employer further submits that there is no basis to award lost
wages for employees diagnosed as dependent absent clear evidence that they were in
fact not dependent. Implicit in that argument is the suggestion that there is no evidence
to that effect, and no real controversy as to the substance dependence of the
employees who may have, by reason of that condition, suffered some loss in wages.

Counsel for the HEA submits that any damages in the instant case and any
related remedy must be limited to a period calculated within seven days of the filing of
the grievance. In that regard the HEA refers the Arbitrator to the provisions of articles
11.02 and 11.05 of the collective agreement, as follows:

11.02 Alternatively, the union may commence a grievance

concerning the application of this agreement at this
Step II, by submitting the required written notice within
seven (7) days of the alleged violation. Such notice
must include a statement of the grievance, together
with the adjustment desired, if applicable.
11.05 Failure to follow the above shall be conclusive
evidence of the abandoning or non-existence of a
dispute or grievance. The time limits set forth in
23

11.02 exclude Saturdays, Sundays and holidays and

may be extended by mutual agreement between the
Union and the Halifax Employers Association. If, at
any step, a reply is not received with the time limits,
the other party shall consider this to be a negative
reply and must process the grievance accordingly,
unless it is abandoned.
With respect to the issue of the appropriate time frame for a remedial award the
HEA relies on a number of prior awards including, International Longshoremens
Association, Local 269 and The Halifax Employers Association, an unreported award of
Arbitrator Outhouse dated July 9, 2001; Re Parking Authority of Toronto and Canadian
Union of Public Employees, Local 48, (1974), 5 L.A.C. (2d) 150 (Adell) and First Air and
Canadian Union of Public Employees, Airline Division, [2005], C.L.A.D. No. 496 (Knopf).

5.

THE DECISION OF THE ARBITRATOR:

a.

DECISION REGARDING THE SCOPE OF THE GRIEVANCE:

The Arbitrator turns to consider the merits of the dispute as submitted. At the

outset it is important to determine the scope of issues to be addressed and, if

appropriate, remedied by this Award.

This Board of Arbitration is not a Royal

Commission vested with the authority to investigate all aspects of alleged irregularities
in the administration of the Substance Abuse Program which operates under the HEAs
Policy on Employee Safety and Assistance. The Arbitrator agrees with the HEA that the
text of the grievance itself is critical in determining the scope of matters to be dealt with.

24

Drawing on the text of the grievance, reproduced above, the Arbitrator is satisfied
that there are four basic grounds upon which the HEA is said to have acted arbitrarily,
unreasonably and beyond the scope of its management rights as articulated in article
2.03. The first is whether Counsellor J, retained by the HEA, is properly qualified to
diagnose or treat issues of drug and/or alcohol dependency. The second is whether,
following Counsellor Js assessment of an employee, his recommendations that
employees attend counselling sessions with him were inappropriate and caused a
conflict of interest. The third issue raised in the grievance concerns the question of
whether alleged breaches of confidentiality through alleged improper disclosures to the
HEA of personal information about employees went beyond the degree of consent given
by employees, i.e. whether there was improper and excessive disclosure of personal
information in violation of PIPEDA and the fourth is whether Counsellor J breached the
employees entitlement to privacy respecting their counselling and/or otherwise acted in
an unprofessional manner in his provision of counselling services.

b.

DECISION REGARDING THE HEAS ASSERTION OF INARBITRABILITY:

The Arbitrator cannot sustain the HEAs objections with respect to the alleged

inarbitrability of these issues. The HEA objected to the arbitrability of matters set out in
paragraphs 19, 20, 21, 25, 26, 27, 28 and 30 of the Unions Statement of Issues, which
have been detailed in secton 3 of this Award regarding the position of the HEA. In the
Arbitrators view these parts of the evidence tendered by the Union and objected to by
the HEA go to the core of the Unions effort to support or demonstrate the allegations
which are central to its grievance, that being that Counsellor J is not properly trained or

25

qualified to assess or treat the drug and/or alcohol dependence of employees and that
his actions in counselling employees have been both unprofessional and in breach of
the collective agreement and PIPEDA. To put it differently, the disputed allegations go
to the substance of the grievance. For these reasons, the Arbitrator is compelled to
reject the submission of the HEA that the allegations raised in paragraphs 19, 20, 21,
25, 26, 27, 28 and 30 of the Unions brief are inarbitrable.

c.

DECISION REGARDING THE QUALIFICATIONS OF COUNSELLOR J:

The first issue of substance which the Arbitrator intends to address is the

allegation that Counsellor J was not properly trained or qualified to either assess
whether an employee is dependent on drugs and/or alcohol or recommend an
appropriate treatment program as alleged by the Union. The Arbitrator has difficulty
with that submission of the Union. As reflected in the materials before the Arbitrator,
Counsellor J has a Master of Education degree, with qualification as a Registered
Professional Counsellor (RPC). He held that status while he was a member in good
standing of the Canadian Counselling and Psychotherapy Association, as well as the
status of Master Practitioner of Counselling Psychology (MPCP) and a member in the
Canadian College of Professional Counsellors and Psychotherapists (CCPCP). It is
further undisputed that Counsellor J was a member in good standing of the Canadian
Professional Counsellors Association. As confirmed in the unchallenged submission
contained in the HEAs materials, the Nova Scotia Counselling Therapists Act and
Psychologists Act contain no provisions which would prohibit Counsellor J from
providing the services he did with the qualifications he possessed. The Arbitrator is

26

satisfied in the correctness of the HEAs assertion that Counsellor J did not hold himself
out as a psychologist or practice psychology contrary to the Psychologists Act.
Moreover, the Arbitrator considers it significant, as stressed by the HEA, that Counsellor
J has over 25 years of experience in counselling, including a one year internship with
the Nova Scotia Drug Dependency Commission, in addition to his 30 years of
experience with Correctional Services of Canada.

The unchallenged evidence before the Arbitrator further establishes that in a

contract between the Halifax Employers Association and Medavie Blue Cross, ShepellFGI Consultants Corp., which employs Counsellor J, is described as a duly qualified
employee assistance plan provider certified within the Employee Assistance Society of
North America and accredited with the Council of Accreditation.

In the Arbitrators view the standing and background of Counsellor J, and the
qualifications reviewed at greater length above, confirm that Counsellor J did have the
formal training and qualifications to perform the duties which were assigned to him by
Shepell-FGI Consultants as a substance abuse counsellor for the HEA. The Arbitrator is
unable to sustain the Unions allegation that by retaining Shepell-FGI together with
Counsellor J and having employees referred to him for assessment and treatment
following positive tests for drugs and/or alcohol, the Employer has acted in a manner
that is unreasonable, arbitrary or constitutes an excessive exercise of managements
rights, as contained in the collective agreement.

27

Whatever may be said of the judgment or specific actions of Counsellor J in any

given case, the Arbitrator cannot sustain the submission of the Union that Counsellor J
was not professionally qualified, and that part of the grievance must be dismissed.

d.

DECISION REGARDING COUNSELLOR JS ALLEGED CONFLICT OF

INTEREST:
The Arbitrator must also prefer the position of the HEA with respect to the

allegation that Counsellor J was in a conflict of interest in his relations with employees
referred to him.

That allegation, in the Arbitrators opinion, fails to appreciate the

necessary dynamics of the referral process. Obviously, the first step in dealing with an
employee with an alleged addiction problem is proper assessment. The evidence is
clear that because the HEA utilized the services of Shepell-FGI, Counsellor J, who
worked for Shepell-FGI, was repeatedly utilized to assess whether an employee of the
HEA was drug or alcohol dependent and whether treatment should be recommended.
Of particular significance, the unchallenged material before the Arbitrator confirms that it
was not Counsellor J himself, but rather the appropriate officer of the service provider,
Shepell-FGI, who made the specific referral of any given employee to Counsellor J for
both the assessment and subsequent counselling treatment. Accordingly, if there was a
conflict of interest arising from Counsellor J performing the assessment and providing
the follow-up treatment, (which I specifically do not find) it was not a conflict of interest
created by Counsellor J.

28

The Union alleges that in any event when Counsellor J both conducted
assessments of an employees dependence and also recommended treatment by
himself he acted contrary to the ethics and standards of practice for counsellors and
psychotherapists.

In the Arbitrators view, however, it is less than clear from the

wording of the Code of Ethics promulgated by the Canadian Professional Counsellors

Association and appended to the Unions materials presented to the Arbitrator that
Counsellor Js engagement in both assessment and counselling constituted either a
breach of the Code of Ethics or a conflict of interest.

The Code of Ethics of the Canadian Professional Counsellors Association by

which Counsellor J should be guided, includes the following:

Code of Ethics
1. I will make every effort which appropriate (e.g.
except when the client is in crisis) to complete a
comprehensive standard Clinical Assessment at
the beginning of the counselling relationship;
2. If I do not have the skill level to provide the help
needed, I will refer a client to other qualified
professionals;
3. I will preserve the clients right to confidentiality
and will not release any identifying information
verbally or in writing without the clients signed
permission (excepting the threat of suicide, homicide
or suspected child abuse or when requested by a
Court of law);
4. I will not engage in any relationship with the
client
other
than
the
counsellor-client
relationship;
29

5. I will not touch a client and convey any message

which might be interpreted as expressing sexual
feelings for the client;
6. I will avoid statements to the client which suggest
possible causes (e.g. childhood sexual abuse) of
current difficulties but will allow insight and recovery
of memories to come from the client;
7. I will inform the client that mental images which
emerge during hypnosis or guided imagery may not
be memories of actual events;
8. I will provide
counselling;

safe,

private

setting

for

[emphasis added]
The terms of the Code of Ethics anticipate that a counsellor will engage in both
assessments and counselling. The Code does not draw a wall between the two
services. In all the circumstances, the Arbitrator cannot accept the Unions allegation
that Counsellor J acted through a conflict of interest in his assessment of employees
when it was recommended that those he found to be substance dependent should
attend counselling sessions with himself. Moreover, even if it was Counsellor J who
recommended that he should carry out the counselling for an employee he had
assessed, the Arbitrator has been made aware of no professional or ethical standard in
the field which would prevent a professional counsellor from both assessing a subject
and recommending that that same subject pursue a program of counselling with him or
her, absent fraud or bad faith, which are not alleged here. Accordingly, the Unions
allegation of a conflict of interest must be dismissed.

30

e.

DECISION REGARDING ALLEGED UNPROFESSIONAL CONDUCT IN THE

LOCATION OF COUNSELLOR JS OFFICE:
The Union asserts that Counsellor J conducted himself in an unprofessional

manner and in a fashion which compromised the personal privacy rights of the
employees referred to him, because Counsellor J received employees for counselling
sessions within his own home. It is noted that there is no suggestion in the evidence
that anyone else was present in Counsellor Js home during the course of any
counselling session with any employee.

While it is clear from the documentation reviewed above that the counsellors
obligation of confidentiality is paramount, there is nothing on its face which would
suggest that meeting privately and alone with a client within his or her home would
constitute a violation of confidentiality or privacy on the part of a counsellor. Home
offices are not uncommon in many professions and the use of a home to provide
professional services is far from unheard of.

Even apart from the fact that no employee seems to have specifically objected to
attending at counselling sessions in Counsellor Js home, the Arbitrator can find nothing
objectionable, in and of itself, in the fact that Counsellor J had his counselling office in
his home. The Union has directed the Arbitrator to no law, regulation or guideline which
would prohibit a professional counsellor from utilizing his or her home to meet with or
deal with clients, particularly when there is no other person present during his or her
provision of counselling services and where no indiscretion or violation of the obligation
of confidentiality has been demonstrated.
31

On the basis of the foregoing, the Arbitrator, therefore, cannot sustain the
Unions suggestion that meeting and counselling employees in his home was of itself
unprofessional or improper on the part of Counsellor J. Accordingly, this aspect of the
Unions grievance is dismissed.

f.

DECISION REGARDING ALLEGED BREACHES OF CONFIDENTIALITY

THROUGH DISCLOSURES MADE TO THE HEA:
The Union asserts that Counsellor J acted in breach of his duty of confidentiality

and in violation of Employee Ms rights of privacy when he disclosed that Employee M

was diagnosed with lung cancer.

The HEA characterizes Employee Ms cancer diagnosis as an obvious

impediment to the resolution of his substance dependency based upon his past history.
That question is further touched upon in the Will Say Statement of Counsellor J in which
he states: I advised HEA about the cancer treatment because it related to the risk of
relapse. For the HEA and Counsellor J to make such a connection between a cancer
diagnosis and a heightened expectation of relapse, without supporting psychological or
medical evidence, which is not presented in this case, causes substantial concern for
the Arbitrator.
On what basis, then, can a counsellor who is bound by an obligation of
confidentiality share with an employer private personal information, including a sensitive
diagnosis such as cancer? Naturally, any number of personal stressors, such as the

32

loss of a parent or the serious illness of a child, can have a bearing on the mental state
and potential stability of any person. However, to tie the disclosure of Employee Ms
diagnosis of cancer and surgery to concerns for the potential for relapse, standing on its
own, is simply too facile to justify the disclosure and, in the Arbitrators view, violates the
counsellors obligation of confidentiality toward the employee entrusted to him.

Obviously, Counsellor J would have been in a position to properly advise the

HEA of concerns should Employee M in fact suffer an actual relapse, a matter which
would clearly go to his ability to perform work in a safety sensitive position.

With

respect, however, speculative musing about a possible relapse by reason of a particular

medical diagnosis, or any other fact which is extremely sensitive and private, cannot of
itself justify the sharing of such information with the individuals employer.

The

Arbitrator considers that this aspect of the evidence discloses a serious breach of the
confidentiality and privacy rights of Employee M that, on its face, would appear to be a
violation of Employee Ms right to confidentiality as reflected in paragraph 3 of the
Code of Ethics of the Canadian Professional Counsellors Association, set out above.
Employee M had every reason to believe that sharing confidential information with
Counsellor J could be done in the knowledge that it would not go any further. The
Arbitrator is satisfied that Counsellor Js failure to respect that expectation of
confidentiality could foreseeably undermine the trust that is essential to the viability of
the counselling process itself.

33

Accordingly, on the basis of the foregoing, the Arbitrator must agree with the
Union that Counsellor J blatantly exceeded the limits of confidentiality when, in his
written report in relation to Employee M dated April 1, 2014, he expressly disclosed that
Employee M had recently been diagnosed with lung cancer.

g.

DECISION REGARDING ALLEGED BREACHES BY COUNSELLOR J OF THE

EMPLOYEES ENTITLEMENT TO PRIVACY IN RESPECT OF THEIR
COUNSELLING:
Upon reviewing the evidence, additional concerns in respect of the actions of

Counsellor J arise with respect to the variety of public locations he chose for carrying
out some of his counselling services. The unchallenged evidence confirms that a
number of counselling sessions conducted with Employee M occurred outside
Counsellor Js home, including various Tim Hortons locations in Halifax, as well as in
the course of walking openly on the Halifax waterfront.

Other instances of public

exposure during the counselling of Employee M in the company of Counsellor J, which

also appear to be unchallenged, involved visits to Home Depot, a bank and a grocery
store.

The Arbitrator appreciates that there may be limits to what an employer can do to
respect rights of confidentiality. For example, when an employee is required in the
workplace to provide a cheek swab or a urine sample as part of an appropriate drug
testing program, it may not always be possible for that process to unfold without some
degree of observation or knowledge by others, no matter what precautions may be
taken. When, however, individuals are referred to professionals for assessment and
34

treatment, whether to a physician, a social worker or a counsellor such as Counsellor J,

there is every reason to expect that full confidentiality will be respected in the manner in
which the referral is made and the assessment or treatment process itself unfolds. In
considering this aspect of the evidence, the Arbitrator considers it important to realize
that the employees themselves, who had reason to believe that Counsellor J could
affect their ongoing employment, were not in a position to easily object to anything he
might propose, including conducting their counselling in public places.

The Arbitrator is satisfied, on the whole, that Counsellor J genuinely cared about
his clients and acted in good faith. However, the inescapable conclusion which the
Arbitrator is compelled to draw is that on a number of occasions Counsellor J did fail in
the duty of confidentiality and privacy which he owed to all of the employees in his care
by placing himself and employees he was counselling in a variety of public places
where the employees were exposed to being seen by the public in the company of
Counsellor J.

In the Arbitrators view, the above described failing on the part of Counsellor J
must be viewed as serious and expressly contrary to the confidentiality requirements of
the Code of Ethics of the Canadian Professional Counsellors Association, reproduced
above, and arguably contrary to the spirit, if not the letter, of PIPEDA. In the Arbitrators
opinion nothing in the collective agreement, or in the law generally, would expressly or
impliedly authorize the Employer to compel its employees to engage with a professional
offering services in the obviously sensitive area of substance abuse counselling in

35

circumstances where those services are rendered in public places, in a manner that
fails to respect the privacy and dignity of employees by not maintaining rigorous
standards of strict confidentiality.

While the Arbitrator has reviewed the explanation for his actions provided in the
Will Say Statement of Counsellor J, the Arbitrator cannot accept that he had any
legitimate purpose in violating the confidentiality of employees under his care, by
effectively communicating to the world at large that they were being counselled by him,
as occurred for example in the case of Employee M who was compelled to undergo
counselling sessions at Tim Hortons restaurants, a Home Depot location and during the
course of Counsellor Js grocery shopping. There is nothing before the Arbitrator that
would mitigate the following assertion contained in the submission of the Union This
experience was extremely stressful and uncomfortable for [Employee M], who did not
want to be seen in public with his counsellor and was always fearful of running into
someone he knew. That is clearly confirmed in the Will Say Statement of Employee M
himself, as follows:

When we were out together, I always felt uncomfortable,

especially at Tim Hortons. One of the Tim Hortons we went
to was one that my father goes to. I was always terrified of
running into people I know. A couple of times we did, and I
didnt know how to introduce Counsellor J. Again, there was
no confidentiality.
In the circumstances, the Arbitrator is compelled to conclude that by conducting
counselling in public places Counsellor J departed from the requirements of paragraph

36

8 of the Code of Ethics which mandates a safe and private setting for counselling, along
with the expectation of privacy found in PIPEDA, which I am also satisfied is implicit in
any employment relationship and in the collective agreement.

h. DECISION REGARDING ALLEGED UNPROFESSIONAL COMMUNICATIONS

WITH EMPLOYEES:
A number of employees have provided statements expressing their concern in
respect of their communications with Counsellor J. For example, Employee E relates
that during counselling sessions in Counsellor Js home he was asked by Counsellor J
questions relating to how often the employee and his wife had sex. Employee E
responded that it was none of Counsellor Js business, which brought the matter to an
end. Another employee, Employee N, relates that during counselling sessions with
Counsellor J he was asked a number of questions about whether he was sleeping with
his former common-law spouse, a line of questioning which caused him to complain to
his Union representative. Shortly thereafter he was assigned to another counsellor.

As significant as these concerns about Counsellor Js alleged indiscretion and lack

of professionalism may be, as well as others in the Unions position, they do not go to
the issue of privacy and confidentiality, which is the focus of this grievance, being
comments made privately within a counselling session. I therefore do not consider it
necessary to deal with these any further. However, I must conclude that Employee Cs
privacy and right to confidentiality was violated when Counselor J spoke to that
employee on the telephone while Employee E was present and overheard their

37

conversation. That was plainly unprofessional on the part of the counselor. In my view
it also deeply offended the rights of Employee E who would have every reason to doubt
his ability to communicate at any time thereafter in confidence with Counsellor J.

i. SUMMARY OF CONCLUSIONS REGARDING COUNSELLOR JS CONDUCT

AS A COUNSELLOR:
What, then, does the evidence disclose?

Firstly, the Arbitrator considers it

important to stress that Counsellor J, who is the focal subject of much of the grievance,
is a properly qualified and experienced professional in the field of counselling. The
Arbitrator is satisfied that as a general matter he proceeded in good faith in the delivery
of his services.

While the Arbitrator does not find that there was anything inappropriate in
Counsellor J interviewing employees in his own home or occasionally giving them a ride
in his car, the Arbitrator has determined that Counsellor Js inclusion of such highly
personal and private medical information as a cancer diagnosis in his report to the HEA
and speaking openly on the telephone with one employee while in the presence of
another constituted a serious breach of the confidentiality requirements of the Code of
Ethics and a breach of the protections of PIPEDA.

Moreover, the Arbitrator must agree with the Union that in certain other specifics,
and on some occasions, Counsellor Js actions and statements did violate the right of
privacy and confidentiality to which the employees under his care were entitled,

38

including as set out under the Code of Ethics. As noted above, the Arbitrator finds that
that is specifically established in his having counselled employees in public places such
as Tim Hortons restaurants, where they were clearly uncomfortable by reason of the
risk of being seen by others.

In fairness to the HEA, it would appear that for some time at least the HEA was
unaware of certain of the serious allegations now being made in respect of Counsellor
J. The Arbitrator accepts as truthful the Will Say Statement of HEA President Richard
Moore that it was only at a grievance meeting on or about April 17, 2014 that he
became aware of the allegation of Counsellor J asking employees inappropriate
questions about their sex lives. Further to that question, he relates, and the Arbitrator
accepts, that the allegations relating to Employee Ms counselling by Counsellor J were
never brought to his attention until after the grievance was filed and Employee Ms Will
Say Statement was produced. Be that as it may, however, in the Arbitrators view it
cannot be seriously argued that the HEA can disclaim all responsibility for the actions of
Counsellor J on the basis that it did not specifically know of them or endorse them.

The HEA assigned the administrative delivery of the EAP to Medavie Blue Cross,
which itself contracted with Shepell-FGI which administers a reputable EAP service
known as inConfidence and employed Counselor J as the EAP Coordinator.
Accordingly, the fact is that Counsellor J was effectively chosen as a counsellor by the
HEA and that consequently employees found to be drug or alcohol dependent had little
alternative but to deal with Counsellor J, the counsellor retained by their employer. The

39

employer cannot disavow or escape responsibility for the actions of its chosen agent
and must bear liability for any violation, in the course of his duties, of the rights of the
employees in the bargaining unit for which he was responsible.

While the Arbitrator has been compelled to make some difficult determinations,
this Award should not be understood as a wholesale condemnation of Counsellor J and
the services which he provided. There is uncontroverted evidence before the Arbitrator
that Counsellor J did provide valuable counselling as acknowledged by a number of the
employees themselves. This Award must be understood as dealing strictly with those
proven instances where the privacy and confidentiality rights of employees were,
whether by oversight or otherwise, denied to employees in their dealings with
Counsellor J and his communications with their employer.

The conclusive fact, which the Arbitrator cannot ignore, is that certain
transgressions of privacy and confidentiality did occur in a manner which can be
assumed to have caused distress to any reasonable employee. As noted above, the
Arbitrator is also compelled to conclude that the actions of Counsellor J did depart from
the professional guidelines in respect of confidentiality which governed him, as well as
the overall protections of PIPEDA and the specific protection of personal information
reflected in section 5(3) of that statute which provides:

An organization may collect, use or disclose personal

information only for purposes that a reasonable person
would consider are appropriate in the circumstances.

40

For the reasons related, in a number of instances, the actions of Counsellor J violated
the above-noted standards.

j. DECISION REGARDING THE HEAS CLAIM OF ESTOPPEL:

While it is not entirely clear to the Arbitrator what role motive can play in
assessing the merits of a grievance, counsel for the HEA nevertheless suggests that
there are underlying unstated reasons for the grievance now before the Arbitrator, which
is effectively to force the removal of negative reports and documents from the records of
employees as a means of eradicating the record and related discipline registered
against them.

Counsel also questions why, in the example of Employee M, the

employee continued to undergo weekly counselling by Counsellor J for more than a

year without raising any objection to the quality of the counselling being provided.

In approaching this aspect of the grievance, the Arbitrator is satisfied that there is
a degree of merit to the assertion of the HEA with respect to the weight to be given to
the Unions own acceptance of Counsellor J over a period of years. As reflected in the
material reviewed above, for several years and in a number of instances, the Union
handled the cases of a number of employees who were assessed by Counsellor J in the
knowledge that he would both assess them and would provide the counselling
recommended in his own report.

41

Notwithstanding the foregoing considerations, the Arbitrator cannot sustain the

suggestion of the HEA that the Union is estopped from succeeding in this grievance by
reason of its own occasional acceptance of Counsellor J as a service provider in certain
past settlements it agreed to or its general acceptance of Counsellor J over the years.
The Union, in the Arbitrators opinion, is entitled to receive and evaluate such new
information as may come to it and to grieve where that information justifies it. Having
previously agreed to the services of Counsellor J, the Union is not forever precluded
from grieving new information in respect of his actions.

In the result, for the reasons set out, the Arbitrator declines to accept the HEAs
claim of estoppel. Accordingly, the Arbitrators findings of breaches of the various
employees rights to confidentiality and privacy, as set out, must stand .

j.

DECISION REGARDING REMEDY:

By way of initial remedy, the Arbitrator awards the following declaration, that

being that Cousellor J acted in breach of his obligations regarding confidentiality and
privacy in respect of some of the employees he counselled by (1) including in his
reports to the HEA unduly personal and private information inclusive of medical
diagnoses; (2) by carrying out counselling sessions with various employees in public
places, and (3) by engaging in some professionally indiscreet communications with
various employees, inclusive of openly discussing over the telephone the circumstances
of another employee in front of one of the grievors.

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There are four additional remedies that have been sought by the Union: First, the
Union seeks damages for mental distress and harm to dignity and privacy for the
affected employees. Second, the Union requests that the Arbitrator make an order for
the removal of all reports and communications made by Counsellor J to Shepell-FGI
and/or the HEA in respect of the employees affected, as well as the destruction of those
documents. Third, the Union requests compensation for lost wages in respect of lost
work opportunities which resulted from being required, on the recommendations of
Counsellor J, to attend counselling sessions, treatment or other programs. Fourth, the
Union asks for an order directing that no bargaining unit employees ever again be
referred to Counsellor J for assessment and/or treatment.

Regarding damages, Union counsel submits that the remedy in the instant case
should recognize the violation of the privacy and confidentiality rights of the employees,
including the violations of the provisions of PIPEDA.

Noting the time employees were

compelled to spend with Counsellor J, counsel submits that Employee M should receive
damages in the amount of $10,000.00, while the others, Employee C, Employee N and
Employee E, should be compensated at the level of $5,000.00 each.

As a matter of principle, it is not inappropriate to direct the payment of damages

for the loss of an employees privacy and dignity. That is confirmed, for example, by the
decision of this Arbitrator in Canadian National Railway and Teamsters Canada Rail
Conference (Love), (2013), 240 L.A.C. (4th) 100 (M.G. Picher). In that case the results
of employees drug tests were left in public view in the office of the employer.

At

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paragraph 8 of that Award, which resulted in monetary damages of $500 to the

employees affected, the Arbitrator commented as follows:

While I appreciate the argument made by the

Companys representatives that it was the Companys
service provider, Driver Check, which was indiscreet in the
communication of the information sent by fax, the fact
remains that the method of drug testing and the
communication of drug testing results remain within the
prerogative of the Company and the agents which it may
engage for that purpose. It does not lie within the mouth of
the employer to suggest that any violation of the grievors
privacy rights was not the employers fault to the extent that
the disclosure of the information on an open fax machine
was instigated by the Companys agent, Driver Check. It is
incumbent upon the employer to make arrangements with its
service provider to ensure that no such indiscretion can
occur.
In the Arbitrators view the Unions request for damages has merit, given the
findings made above to the effect that Counsellor J did commit indiscretions which
clearly violated the rights to privacy and confidentiality of a number of employees.
Moreover, I cannot accept the submission of the HEA to the effect that any remedy
must be limited to a period of seven days prior to the grievance. In my view the Union is
correct in its submission that the violations of the privacy and confidentiality rights of its
members were and are ongoing, to the extent that reports of Counsellor J remain in
employee files.

The Arbitrator does, however, have some doubt with respect to the amounts of
compensation sought by the Union in respect of the employees involved. In the
Arbitrators view the measure of damages must be kept in reasonable perspective.
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There is no medical evidence or other documentary material filed by the Union before
the Arbitrator to suggest or confirm that the employees affected suffered substantial
medical impacts, such as clinical depression, by reason of their dealings with
Counsellor J. What the case before the Arbitrator reveals is repeated instances of
errors in judgment and insensitivity on the part of Counsellor J which did, as the
Arbitrator has found, fail to respect the rights of privacy and confidentiality of these
employees. Bearing in mind that an arbitrators jurisdiction is to award damages which
are compensatory, and not punitive, the Arbitrator is of the view that the amounts
suggested by counsel for the Union are beyond what is necessary for that purpose.

In the result, the Arbitrator deems it appropriate to direct, and does direct, that
Employee M be compensated in the amount $5,000.00 and that Employee C be
compensated by the payment of an amount of $2,500.00,

such amounts being in

relation to the violation of their rights of privacy and confidentiality as a result of the
actions and reports of Counsellor J.

I further award an amount of $1500 in damages

for Employee E by reason of his being exposed to Counselor Js unprofessional

communication with employee C in the presence of Employee E.

I am satisfied that

that exposure would undermine Employee Es due expectation of privacy and

confidentiality in communications with Counsellor J. I make no order of compensation
respecting Employee N as the evidence, at most, discloses an alleged indiscretion
regarding comments made within a private consultation by the counsellor, and not a
violation of the privacy or confidentiality rights of employee N.

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Regarding the removal and destruction of reports, the Union urges the Arbitrator
to order the redaction and destruction of the reports of Counsellor J through ShepellFGI in respect of all four grievors, being Employee M, Employee C, Employee N and
Employee E. The Arbitrator has substantial concern with the breadth of the Unions
request and considers that it would be going too far. The Union has not challenged, for
example, the determinations made by Counsellor J in the case of a number of
employees to the effect that they were in fact substance dependent. On what basis
should those determinations, which are effectively unchallenged, be removed from the
Employers records and destroyed? The Arbitrator can see no responsible basis for
such a direction.

In contrast, however, the Arbitrator does find that there is reason for legitimate
concern with respect to the nature and extent of the personal and private information
which may be contained in reports which Counsellor J made to the HEA. One obvious
example of such a problem was the communication to the HEA by Counsellor J of
confidential information concerning an employee having been diagnosed with lung
cancer.

Such communications should plainly not be in the employees files.

The

Arbitrator therefore directs that the parties work together to review the reports of
Counsellor J provided to Shepell-FGI or the HEA in respect of each employee with
whom he dealt.

Where such reports are found to contain inappropriate personal

information, such as a private medical diagnosis, they shall be purged accordingly. In

the event that the parties cannot agree on the review and purging of any particular file,
the Arbitrator retains jurisdiction to deal with the specifics. The Arbitrator does not,

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however, consider it appropriate to order a wholesale removal and destruction of all

reports and communications provided to the HEA by Counsellor J.

Turning to the Unions request for compensation for lost wages, the Arbitrator
finds no basis for awarding compensation for lost wages in respect of alleged lost work
opportunities resulting from the actions of Counsellor J or for the loss of work time
during his counselling. No facts have been placed before the Arbitrator to justify such a
remedy. Finally, as the unchallenged representations before the Arbitrator would
indicate that the counsellor in question is no longer retained by the HEA, no order in
respect of his continued retainer appears to be necessary. For the purposes of clarity,
however, had it been necessary to do so the Arbitrator would have made such a
direction.

On the basis of the foregoing and for the reasons set out, the grievance is
allowed in part and denied in part. The Arbitrator retains jurisdiction in respect of the
grievances considered herein in the event of any dispute between the parties
concerning the interpretation or implementation of this Award or the fashioning of the
remedies ordered.

Dated at Ottawa, Ontario this 18th day of June, 2015.

Michel G. Picher
Michel G. Picher
Arbitrator
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