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
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
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
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.
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