The Human Rights Tribunal of Ontario has set out criteria that an employer must satisfy in order to use its own Occupational Health and Claims Management file to defend itself in a human rights complaint.
An employee filed an Application with the HRTO alleging that the employer, through its Occupational Health and Claims Management department, discriminated against him by requiring unnecessary medical information, improperly administering his sick benefit claims, and failing to properly accommodate his disability.
The employer asked the HRTO to order that the employer was authorized to access and use the employee’s personal health information contained in the Occupational Health and Claims Management file, for the purposes of responding to the employee’s human rights complaint.
The HRTO was satisfied that the employer required access to the documents in order to meaningfully respond to the employee’s human rights complaint.
It appears that the reason for the employer’s request for access to the Occupational Health and Claims Management file (instead of simply accessing its own file without seeking the HRTO’s permission) was subs. 63(2) of the Occupational Health and Safety Act, which provides:
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.
The HRTO ordered that the employer was permitted to access its Occupational Health and Claims Management file on the employee, provided that:
- the employer provide a copy of the file to the employee;
- the employer ensure that its advisors, individuals giving instruction to counsel, and potential witnesses are the only persons permitted to access, review and use the documents; and
- counsel for the employer is required to state and confirm with all persons with whom the health information is “canvassed” that the persons are required to strictly maintain confidentiality of the health information.
Coutts v. Toronto Transit Commission, 2016 HRTO 7 (CanLII)
