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
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 theOccupational 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
"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
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