On February 22nd, Ontario arbitrator George Surdykowki held that the Court of Appeal for Ontario’s recognition of an “intrusion upon seclusion” tort does not change rights and obligations related to the use of employee medical information for employment purposes. He said:
I agree with the Union that Jones v. Tsige reinforces the premium value of privacy in Canadian society. But the decision does not establish an additional premium or value
in that respect.
I agree with the Employer that whatever Jones v. Tsige actually stands for in terms of the non-legislated or non-contractual right to privacy, it does not stand for the proposition that asking for or even demanding that an employee disclose confidential medical information for a legitimate purpose constitutes an improper or actionable intrusion on the employee’s right to privacy. Jones v. Tsige does not posit any absolute right to privacy. Although, Jones v. Tsige does mean that the comments about the common law of privacy in paragraph 20 of Hamilton Health Sciences #1 are no longer completely accurate, it does not otherwise alter the fundamental analysis in that case (or in Providence Care, Mental Health Services and other decisions following or flowing from Hamilton Health Sciences #1). It remains the case that an employer is entitled to request and receive an employee’s confidential medical or other information to the extent necessary to answer legitimate employment related concerns, or to fulfill its obligations under the collective agreement or legislation, including the human rights or health and safety legislation (for example). I agree with the Employer that nothing in Jones v. Tsige alters its right to manage its workplace(s), or to obtain confidential medical or other information as required or permitted by legislation or the collective agreement, or which it reasonably requires for a legitimate purpose. Of course, it remains the case that the employer is only entitled to the confidential information necessary for the legitimate purpose. Even then the employee can refuse to disclose her confidential medical or other information, although if she does she must accept the consequences of exercising that right of refusal. Refusing to allow access to necessary confidential medical information may justify the employer’s refusal to allow the employee to continue or return to work, or stymie the accommodation process, result in the loss of disability benefits, or even lead to the loss of employment.
It’s nice to have a clear and strong statement like this “out of the gate.” The medical information management arbitral jurisprudence that deals with justification for collection is well-settled and well-calibrated. Jones v Tsige doesn’t and shouldn’t make a difference.