Must an employer obtain permission from the Human Rights Tribunal of Ontario to access medical records held in the employer’s own file on an employee who filed a human rights complaint with the Tribunal? That question is raised by a recent Tribunal decision.
The employer submitted that Tribunal authorization was necessary “because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent indicates that the expectations and protections under the Personal Health Information Protection Act, 2004 . . . for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act . . . The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.”
The employer was likely referring to subs. 63(2) of the OHSA which states:
“No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”
Because the employee alleged disability-discrimination relating to her post-traumatic stress disorder, the Tribunal was satisfied that some but not all of the documents contained in the Occupational Health and Claims Management file were arguably relevant and that the employer required access to them in order to meaningfully respond to the employee’s human rights complaint. Access was granted.
The case illustrates that employers seeking to use information in an employee medical file for litigation purposes should proceed cautiously and should seek a court or Tribunal order if necessary.
Feres v. Toronto Transit Commission, 2014 HRTO 980 (CanLII)