Canada: Employer Liable For Disclosure Of Employee Confidential Medical And Employment Information

Last Updated: April 14 2016
Article by Stringer LLP

The law has become increasingly sensitive to the need for the protection of personal information from public disclosure.  This is of particular concern for employers, who often possess a wealth of personal information about their employees.  With this possession comes responsibilities that can trigger legal liability if not fulfilled.

In the recent case of St. Patrick's Home of Ottawa v CUPE, an arbitrator was asked to deal with the ramifications of an unauthorized disclosure of employee medical and employment information in a unionized workplace.

The employee had asked for accommodation, and as a result, the employer St. Patrick's Home of Ottawa ("SPHO") had asked for a medical note.  That medical note was provided, and stated that the employee could perform all of the duties of the job without accommodation.

The employee was simultaneously employed by another employer West End Villa ("WEV") in substantially the same position.  The employee also asked WEV for significant accommodation, and provided a medical note to WEV indicating that the employee could not perform the large majority of her duties.

In the process of investigating the employee's accommodation request, WEV contacted SPHO, requesting information on the employee's attendance and restrictions. SPHO ultimately provided that information, including an unredacted copy of the medical note the employee had provided.

Eventually, the employee's employment with WEV was terminated due to an inability to accommodate her disability.

The employee brought a grievance against SPHO, demanding compensation for the breach of her privacy.  The grievance dealt only with the question of whether the disclosure of the medical note to the other employer had given rise to such damages.

The arbitrator confirmed that the disclosure of medical records by SPHO violated prohibitions in the Occupational Health and Safety Act respecting the disclosure of employee health records as well as SPHO's confidentiality policy.

SPHO claimed that the disclosure, while not permitted under the collective agreement, was innocuous, since the medical note that had been disclosed did not contain any actual diagnosis, and in fact, referred to an absence of medical restrictions.  The arbitrator rejected that argument, finding that the disclosure of any medical information, even negative medical information, is very disrespectful and offensive.  In fact, under SPHO's policies, such disclosure constituted harassment.

The arbitrator found that the employee had shown that the employer's actions constituted, in law, the tort of intrusion on seclusion, and that consequently the employee was entitled to monetary damages (see our update on the case that established the tort here.)

While the arbitrator accepted that SPHO had committed the tort, she also found that the employee was unable to show that she had suffered any direct economic consequences from the disclosure. Although her employment was terminated from WEV, the disclosure did not lead to the termination. In addition, SPHO had offered an apology, but the fact that it was offered at a late stage in the proceedings reduced its weight as a mitigating factor.

As a result the arbitrator issued a damage award of $1,000 to the employee, and issued a number of orders requiring the employer to modify its policies and ensure they were enforced.

What Employers Should Know

Employers as a matter of course possess important and private information concerning their employees.  This is particularly so when employees are seeking accommodation.  The sensitive nature of this information makes it subject to a complex web of rules that make any sort of disclosure outside of the organization potentially unlawful.  It is critical that when faced with requests for the disclosure of employee information, employers either ensure the employee consents, or alternatively, that they have canvassed the potential legal ramifications of disclosing the information.

As this case shows, even employers without malicious motives can be subject to legal liability for impermissible disclosure.  While in this case, the amount of compensation ordered for this single incident was relatively small, other cases involving unlawful and repetitive disclosure of personal information may be much more expensive. One need only imagine a situation in which multiple disclosures were made pursuant to a flawed privacy policy to conceive of a situation in which significantly greater liability could have easily been incurred.

At the 17th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., labour lawyer Jeff Murray will provide employers with guidance on the continually evolving law of privacy and what it means for employers. The Ontario Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga on June 2, 2016. We look forward to seeing you and helping you apply the latest employment and labour law changes. Come and learn the latest!

This blog was first publised on First Reference Talks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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