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
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,
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
Dentons is the world's first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world's largest law firm, Dentons'
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
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. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).