Workplace Wire

SYNDICAT DES EMPLOYÉS DES INSTALLATIONS PORTUAIRES, TCA, section locale 1946 et RIO TINTO ALCAN INC., INSTALLATIONS PORTUAIRES (AZ-50850462) is a case in which the grievor had been terminated for fraud and embezzlement (to the tune of roughly $480,000) and raised an alleged gambling addiction to contest the termination. 

The union sought to have a psychologist give an expert opinion to establish that the grievor had a gambling addiction. The employer objected to the union’s raising the issue without providing an expert medical opinion prepared by a psychiatrist. 

In a prehearing conference, the union had undertaken to provide the employer with the diagnoses of the grievor’s treating physicians in relation to the alleged gambling addiction as well as the report of any psychiatrist who had examined the grievor. 

The union later gave the employer a complete copy of the grievor’s medical file in relation to the therapy he received following his dismissal. In the context of that therapy the grievor’s family doctor diagnosed him with a gambling addiction. However, the union never provided an expert psychiatric report as it had promised. Instead, the union gave the employer the report of a psychologist who concluded that the grievor suffered from a gambling addiction.

Union’s Arguments

The union submitted that a psychologist could provide an expert opinion as to gambling addiction even if he was not a physician, citing article 37 of the Québec Professional Code as well as the code of ethics applicable to psychologists. According to the union, it was clear that a psychologist could diagnose a “mental disorder” and since a gambling addiction is a mental disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM), a psychologist could diagnose it.

The union also pointed out that the psychologist in question was a specialist in gambling addiction, which other arbitrators had recognized. Indeed, the psychologist in question had been retained by the American Psychiatric Association as a consultant for the revision of DSM-IV concerning gambling addiction.

Employer’s Arguments

The employer argued that the union could not unilaterally avoid its undertaking to provide a psychiatrist’s opinion and requested that it be required to provide that by a certain date failing which it would be prevented from invoking gambling addiction in the arbitration.

Further, according to the employer, only a psychiatrist could legally provide a diagnosis of gambling addiction because gambling addiction is a psychiatric illness. The employer pointed out that the Québec Medical Act indicates that a medical diagnosis is reserved for physicians. Secondly, the Professional Coderecognizes that medicine is a profession which can only be exercised by physicians. By contrast, the employer added, there is no regulation by the Ordre des médecins du Québec (professional governing body of physicians) authorizing psychologists to make a medical diagnosis.

The employer recognized that a psychologist could give a psychological diagnosis but asserted that he could not give a medical diagnosis.

The Arbitrator’s Decision

The arbitrator noted that several decisions recognized gambling addiction as a psychiatric illness.

According to the arbitrator, given that gambling addiction is an illness, only a physician could legally make such a diagnosis because under article 31 of the Québec Medical Act the activity of diagnosing illnesses is reserved to physicians. Further, a medical diagnosis is reserved exclusively to physicians under articles 31 to 34 of the Professional Code.

By contrast, the arbitrator found that no law or regulation authorized psychologists to diagnose illnesses. The arbitrator recognized that psychologists could perform psychological evaluations, prepare expert psychological reports and give psychological diagnoses. However, psychologists were not, according to the arbitrator, authorized to diagnose illnesses.

The arbitrator also found that this was not only the law but it also appeared from most of the decisions relied upon by the parties that, generally, the health professionals which appeared most capable of providing a diagnosis of gambling addiction or contesting such a diagnosis were psychiatrists.

The arbitrator continued that it useful to note that the diagnosis of gambling addiction under DSM-IV-TR multi-axial. That is, it takes into account the psychiatric condition of the patient, his personality, his medical condition (axis III), psychosocial stressors and environmental stressors and a global assessment of functioning. The arbitrator found it obvious that axis III fell within the realm of medicine in general and axes I and V fell under psychiatric medicine in particular. According to the arbitrator, a psychiatrist is the only health professional who can provide a diagnosis and a complete treatment to a patient on all of the biological, psychological and social levels.

The arbitrator further found that the grievor’s family doctor, who was a physician, but not a specialist, could testify at the hearing about his diagnosis but could not do so as an expert witness since he was not a psychiatrist and since he was the treating physician.

The arbitrator also found that it is important that the diagnosis of gambling addiction be provided by an expert in the field of psychiatric practice because such a diagnosis, if accepted by the arbitrator, could lead to consideration of whether there was discrimination based on a disability and, if so, whether the employer fulfilled its duty to accommodate to the point of undue hardship.

The arbitrator indicated that the psychologist could testify as a psychological expert, for example, to give his opinion with respect to pertinent psychological tests and interpretation of those tests in order to explain psychological therapies and his opinion as to the level of success in the use of such therapies.

Finally, the arbitrator noted the union’s undertaking given in the prehearing conference. He found that there was agreement as to the evidence which the union would provide and the arbitrator determined that he had the power to give effect to that agreement.

Could an Ontario labour arbitrator come to a similar conclusion?

There is no question that Ontario labour arbitrators (and courts) have in the past considered the evidence of psychologists in relation to issues before them. On the other hand, I am also aware of at least one case in which an arbitrator determined that an employer acted reasonably in rejecting a psychologist`s opinion that an employee was fit to return to work and in insisting that the employee submit to a psychiatric evaluation on that issue (Shell Canada Products Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 848 (Jennings Grievance) [2000] O.L.A.A. No. 293). However, I am unaware of any case in which the sorts of arguments advanced in the Québec decision under review have been raised and decided in Ontario.

We cannot fully explore here how those sorts of arguments might play out in the Ontario context. However, we can make a number of observations as to how arguments similar to those raised in the Québec decision might be raised in an Ontario labour arbitration. And we can point out where further research would have to be performed if this sort of debate arose in that context.

In Ontario, under section 27 of the Regulated Health Professions Act generally no person can perform a “controlled act” unless he is a member authorized by a health profession Act to perform it. And a “controlled act” includes the following in respect of an individual:

Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis.

Under section 3 of the the Ontario Medicine Act the practice of medicine is “the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction.”

Under the same Act, section 4 provides, among other things:

In the course of engaging in the practice of medicine, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following:

1. Communicating a diagnosis identifying a disease or disorder as the cause of a person’s symptoms.

Under the Psychology Act, 1991, section 3 states:

The practice of psychology is the assessment of behavioral and mental conditions, the diagnosis of neuropsychological disorders and dysfunctions and psychotic, neurotic and personality disorders and dysfunctions and the prevention and treatment of behavioral and mental disorders and dysfunctions and the maintenance and enhancement of physical, intellectual, emotional, social and interpersonal functioning.

Section 4 of the Psychology Act,1991also provides:

In the course of engaging in the practice of psychology, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to communicate a diagnosis identifying, as the cause of a person’s symptoms, a neuropsychological disorder or a psychologically based psychotic, neurotic or personality disorder.

So, in Ontario, it appears that psychologists can diagnose a disorder but, like in Québec, not a disease.

In the Québec decision the union advanced the argument that since gambling addiction is a disorder under DSM, a psychologist could diagnose it. However, that argument failed because the Québec case law had come to see gambling addiction as more in the nature of an illness, or put another way, a disease.

I am unaware of any Ontario case law which has drawn out a distinction between diseases and disorders in the same way as the Québec decision under review, specifically in relation to whether a psychologist could provide an expert diagnosis of gambling addiction. This is an issue that would require further research.

Some further legislation may be noted, which could also colour the context of such a debate.

To begin, in Ontario it is clear that the legislature has reserved a special place for physicians and psychiatrists, as opposed to psychologists, in dealing with more serious cases of mental illness, as, for example, is evidenced by the provisions of the Mental Health Act dealing with the admission of an involuntary patient to a psychiatric facility.

On the other hand, the Ontario legislature has decided that psychologists may determine questions of an individual`s capacity to provide consent as evidenced by the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992. This is important because in the employment context, a key issue is often the employee`s capacity to make voluntary choices as to how to conduct himself in the workplace. 

Further, in the context of a human rights complaint, the Ontario Human Rights Codehas a broad definition of what constitutes a “disability” and this would include a “mental disorder”, which may suggest that Ontario psychologists would not face the same hurdles as raised in the Québec decision reviewed. On the other hand, the Human Rights Code does not expressly define what a “mental disorder” is and a number of arbitration and Human Rights Tribunal cases have required medical evidence to establish a disability. Incidentally, the Mental Health Act defines a “mental disorder” as any “disease or disability of the mind”, which may also be seen to favour an analysis along the lines of that seen in the Québec decision under review.

It may also be asked: what of an Ontario psychologist in an arbitration under the Canada Labour Code, where the Canadian Human Rights Act is in play and not the Ontario Human Rights Code? Under the federal legislation, the definition of disability is not worded the same as under the Ontario legislation and, as we have seen, an arbitrator under the federal legislation could require a psychiatric diagnosis as opposed to a psychological one.

Having the above in mind, it seems that the sorts of arguments which were raised in the Québec decision could, in theory, be raised in Ontario. However, it is not clear that the same result would obtain in Ontario. There are some unknowns requiring further research, such as whether a gambling addiction would be seen, as a matter of law, to be more in the nature of a disease or a disorder. And there are other unanswered and complex questions that could be asked if this sort of issue arose in an Ontario labour arbitration.

If a gambling addiction can properly be seen as a disorder, and not a disease, then it would appear doubtful that an Ontario psychologist`s diagnosis of a gambling addiction causing workplace misconduct could be excluded as a matter of law in a labour arbitration. In that case it is more likely that an arbitrator would not exclude the psychologist’s opinion and rather would consider the respective weight of it and any competing psychiatrist`s opinion. 

Although the answers to these sorts of questions are not definitively decided by the Québec decision under review, it certainly raises some interesting issues and may merit consideration in some future Ontario labour arbitration.