Late apology and lack of correction results in increased privacy damages award

14 Mar

There has been some public discussion of the recent arbitration award by Arbitrator Knopf in which she awarded an employee $1,000 in damages for breach of privacy. The following is my view about what organizations should take from Ms. Knopf’s award.

The case is about one employer who shared a medical note with another employer. The other employer also employed the employee and wanted to confirm its understanding of her fitness for work and need for accommodation.

The note the employer disclosed stated, “pt is able to perform the duties of Dietary Aide at St. Pat’s home.” The disclosure was made by a contractor who managed the employee. He also told the other employer that the employee (a) was not currently being accommodated, (b) had no work-related restrictions and (c) was working her regularly scheduled shifts.

The employer admitted liability, and it appears that damages were awarded based only on the disclosure of the medical note. This is notable because it is debatable whether it was wrong for the employer disclose “a” and “c” as noted above. The information I’ve noted as “a” is not received from a health information custodian and therefore is not regulated by statute. The information I’ve noted as “c” is also note received from a health information custodian and is also arguably not personal information. I’m not suggesting the employer was clearly right in disclosing “a” and “c,” but it was also not clearly wrong.

The most important part of the award is the damages analysis, most notably Ms. Knopf’s comments the employer’s delayed apology and lack of corrective action. She said:

This Employer has apologized to the Grievor in the course of these proceedings and affirmed its desire to maintain and to continue a positive relationship with the Grievor. However, this apology was only offered once the Union refined and narrowed the claim for relief in the course of preparation for this hearing, even though the breach of the Confidentiality Policy was apparent from the outset. Therefore almost three (3) years had gone by. The evidence also disclosed that the Employer had not required its contractors to abide by this Policy and there is no evidence to suggest that it has done so to date. Employers often criticize grievors who do not offer timely apologies in situations of wrongdoing. Employers should be held to the same standard. The apology from the Employer is clearly meaningful and significant, but it did come very late and it lacks completion, given the apparently continuing failure to insist on compliance with its Confidentiality Policy by the contractors who serve the residents and interact with the members of this bargaining unit.

The most common and preferred strategy for responding to a loss of data is to conduct a good early assessment and “take lumps” – including by issuing an appropriate apology and committing to corrective action. This case supports the use of that strategy.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA).

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