A federal Health and Safety Officer's file was not
absolutely privileged, and a labour arbitrator may order parts of
it produced to parties in an arbitration, an arbitrator has
A safety issue arose between the employer and two unionized
employees. A federal Health and Safety Officer got involved and
issued a Direction to the employer. The union alleged that the
employer had retaliated against the employees, contrary to the
The employer subpoenad the federal Health and Safety Officer to
testify at the arbitration hearing. Human Resources and Skills
Development Canada got involved, and the Health and Safety Officer
was instructed not to produce his file.
HRSDC argued, before the arbitrator, that the Health and Safety
Officer's file was "absolutely privileged" because of
sections 144(5) and 144(5.1) of the Canada Labour Code.
Those sections provide:
Information not to be published
144. (5) No person shall, except for
the purposes of this Part or for the purposes of a prosecution
under this Part, publish or disclose the results of an analysis,
examination, testing, inquiry, investigation or sampling made or
taken by or at the request of an appeals officer or a health and
safety officer under section 141.
(5.1) If the results referred to in
subsection (5) contain information within the meaning of Part 4 of
the Department of Human Resources and Skills Development Act, the
disclosure of that information is governed by Part 4 of that
The arbitrator concluded that the intent of section 144(5) was
to "safeguard the integrity of HSO investigations", but
that section does not refer to "privilege". Instead, that
section placed "limited prohibition on publication and
disclosure". Section 144(5) was a confidentiality provision,
not a privilege provision. Unlike privileged information,
confidential information may be subject to production in
litigation. Also, in the arbitrator's opinion, the
confidentiality created by that provision expires once the Health
and Safety Officer has provided the "results" to the
As such, the arbitrator denied HRSDC's objection to the
production of the Health and Safety Officer's file. The
arbitrator ordered that the hearing resume in camera for
the purpose of considering "ways and means of dealing with any
privileged personal information contained in the HRSDC
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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