On August 31st, Arbitrator Russel Goodfellow issued an order relating to the production of a grievor’s occupational health file before a pending arbitration hearing. In doing so, he opined as follows:
The employee – in taking on the employment relationship with Telus, in seeking benefits under the collective agreement that applies to her, in providing medical documents to Telus Health directly or through her health care providers, in tacitly agreeing to the collection and/or creation of such documents from and by others, and/or in seeking to enforce her statutory rights to accommodation – does not cede ultimate control or dominion over the documents or the information that they contain. The information remains, in a fundamental sense, hers: see eg. McInerney v. MacDonald,  2 S.C.R. 138. To paraphrase the Court, the fact that the individual may have chosen, or have even been required, to make personal information available to others in order to obtain certain benefits does not mean that she has abandoned her “basic and continuing interest in what happens to this information, and in controlling access to it.” The grievor retains fundamental control over this “highly private and personal” information that goes to her “personal integrity and autonomy”. The requirement of consent is real, it is not a matter of convenience or superstition, and there is no suggestion, for example, that the employee has somehow waived that requirement here…
Before leaving this issue, I would comment that it is unfortunate, but perhaps understandable in the light of the parties’ history, that this matter could not have been resol
ved on agreement. There is a rapidly developing convention, at least amongst large unionized employers in this province, which I wholeheartedly endorse. That convention is for the entire file to be requested by the union, just as the Union did here, with the consent of the grievor, sometimes from the Occupational Health Department of the employer (where that function is performed “in-house”) directly, and for “Occ.Health” to then hand over the file, in its entirety, to the union. Sometimes, though less often, it is the employer that initially seeks production of the file, and that request is typically made either by way of a request by the employer for the grievor’s consent or for an order from the arbitrator made to Occ. Health. Sometimes the two processes go hand in hand.
Though this framework has been endorsed by at least one other Ontario arbitrator, I question whether there is really such a convention and posit that most Ontario employers would take a similar position to that taken by the employer in this case – that an occupational health file is a company file that contains sensitive employee personal information and may be used (and accessed), pursuant to prior obtained consent, for the purpose its contents were collected.
Administering employee medical information in a special file, separate from other employee information, has an important security-related benefit; it creates a “privacy screen” to ensure that access to sensitive information is limited to the occupational health staff who require access for routine use. It should not preclude employer access for non-routine uses that are consistent with the purpose for establishing the file, including non-routine uses such as preparing for arbitration. If employers are required to obtain express consent to prior to accessing their own occupational health files for such a purpose, they face a greater restriction than health care providers face in accessing personal health information that is regulated by the Personal Health Information Protection Act. (See ss. 37(1)(h) and 41(1)(a).) This can’t be correct.
The stakes may be low in dealing with pre-hearing preparation and production (which is probably why some employers seek express consent), but other legitimate uses of occupational health files (such as workplace risk management) cannot be frustrated by a view that regards an important employer file as a locked box that can only be accessed by persons outside of the occupational health department with express employee consent. Arbitrators have been tempted to treat occupational health files as akin to a health care files, but such a conception can cause internal confusion, conflict between occupational health staff and line management and, in construction and heavy industry, can lead to deadly consequences.
[The views expressed are mine alone.]