Neither public nor private sector employees in Ontario have statutory privacy rights. This has been lamented by the IPC itself.
Ontario unions, however, often rely on the Ontario privacy statutes – FIPPA and PHIPA – to forward privacy grievances. This reliance is unnecessary given arbitrators recognize implicit privacy rights, and has caused the jurisprudence to become incredibly muddled. The worst case is the Divisional Court’s Hooper decision, a (non-labour) case that the IPC has effectively said is wrongly decided. I agree. Hooper needs to be challenged and decisively overruled.
In the interim, we’ll have litigation like that in a recent case decided by the GSB. It’s hard to distinguish Hooper, but Arbitrator Dissanyake distinguished Hooper as follows:
It is apparent, therefore, that in each of those cases, the employer was found to be providing some form of health care to its employees. For that purpose it was held that “health care” is not limited to making a diagnosis. It was broader. There is no evidence that the employer in the instant matter provides any health care to its employees even in the broader sense. It does collect some types of health information related to employees, but the purpose is not in any way related to provision of health care. The purpose is to deal with workplace implications of employees’ health issues on the rights and obligations under the collective agreement and legislation.
I suppose the practical lesson for employers is to be very clear about the purpose of the occupational health function, saying things like this:
- This white coat you are dealing with is a specialist that is part of our human resources team.
- This is about assessing you to meet our human resources needs, not helping you get better.
- Sure we’ll keep your information secure and treat it as confidential, but we’ll also use it for all our occupational health purposes, providing our employees and agents with access in accordance with the “need to know” principle.
- Please understand. Your personal physician is your source of health care.
Tell your employees. Tell your occupational health staff. Say it loud. Say it proud.
Ontario Public Service Employees Union (Union) v Ontario (Treasury Board Secretariat), 2018 CanLII 55851 (ON GSB).