Disability-Management Specialist Facing Human Rights Complaint; Tribunal Grants Access to Health Files

A disability-management specialist working for the Toronto Transit Commission is facing a human rights complaint.  The complaint alleges that the specialist, who oversees the TTC’s transitional work program, subjected an employee to harassment and treated her differently compared to other employees on modified duties.

According to an interim decision of the Human Rights Tribunal of Ontario, in the human rights complaint, the employee alleged that the specialist “abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations against about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance.”

In order to respond to the complaint, the TTC and the specialist asked the Tribunal to permit them to have access, use and disclosure of the employee’s Occupational Health and Claim Management files.  They said that the Tribunal’s authorization was required because there may be a conflict between the standards required by the Personal Health Information Protection Act and the duty imposed on employers under the Occupational Health and Safety Act (they were likely referring to subsection 63(2) of the OHSA which states that “[n]o 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.”)

The Tribunal granted the TTC and the specialist access to the Occupational Health and Claim Management file, but only in respect of the period identified in the employee’s human rights complaint. The Tribunal limited access to the advisors, instructors and potential witnesses of the TTC and the disability-management consultant.

The case is a reminder to employers of the confidentiality obligations under section 63(2) of the OHSA.   In particular, where an employee does not consent, and there is doubt about the employer’s right to use an employee’s health file in a litigation matter, the employer should consider obtaining the permission of the court or tribunal in which the employee’s claim was made.

O’Brien v. TTC,  http://canlii.ca/en/on/onhrt/doc/2012/2012hrto170/2012hrto170.html

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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