IPC decision highlights issues about threat assessment and PHIPA application

On January 31, 2024, the IPC/Ontario ordered the Ontario Medical Association’s Physician Health Program to provide a complainant with access to a draft assessment report, though it permitted the OMA to withhold behavioral information collected in preparing the report.

Many institutions have processes that support behavioral threat assessment – a process by which multi-disciplinary teams (often including medical clinicians) conduct a threat inquiry to gather behavioral information (usually indirectly), assess behaviors and determine whether someone poses a threat to themselves and/or others. The assessment can lead to interventions, medical and otherwise, that are of benefit to the person being assessed.

The OMA’s Physician Health Program appears to be a threat assessment program, though its mandate is vague, and involves “education; support and referral; assessment; and monitoring and advocacy.” And in responding to an IPC complaint about its access request denial, the OMA argued it was a health information custodian engaged primarily in the provision of health care. The IPC re-articulated the position as follows:

[16] The OMA PHP describes its monitoring function as “first and foremost a clinical service provided to an individual physician or learner to assist in the maintenance of their health in the context of recovery from a mental health or substance use disorder.” This may involve collecting clinical information, providing clinical opinions, and reviewing urine, hair, blood, or other toxicological tests.

[17] Overall, the OMA PHP states that its employees provide services “to maintain an individual’s mental condition, … to promote health, and in the case of clients already diagnosed, to prevent disease in the form of recurrence, all of which it states fall under the definition of “health care.”

This position drove the outcome given PHIPA has a very broad right of access to personal health information. The OMA was left with no valid basis to shield its draft report, even though the IPC has held that assessment is different than providing health care. The IPC did find that the (critical and sensitive) behavioral reports made to the OMA could be withheld on the basis of section 52(3), which applies to records “not… dedicated primarily to personal health information about the individual requesting access” and permits reasonable severance.

Threat assessment can and should be framed as beneficial to the person being assessed, which is important because it aligns threat assessment with the duty not to discriminate against individuals with disabilities. In other words, threat assessment is an aspect of accommodating disability and meeting institutional health and safety duties. Threat assessment is both a lawful and critical process.

This framing does not make threat assessment health care, nor should it ever be treated as health care in my view. The interventions that threat assessment invites are meant to help in the long and medium term, but in the short term they are about the restriction privileges (e.g., of practicing, working, attending school) based on the assessed risk. There is therefore a conflict in striving to be both a heath care provider and a threat assessor, and individuals under assessment must know the true nature of the process with which they are engaged. Are you my doctor? Or are you working for the institution? If threat assessment is framed as assessment, even if it is conducted by medical clinicians, PHIPA will not apply.

Ontario Medical Association Physician Health Program (Re), 2025 CanLII 9695 (ON IPC), <https://canlii.ca/t/k9ftg>, retrieved on 2025-07-17.

Privacy and the pandemic

I spoke today at the Schedule 2 Employers’ Group virtual speakers series about privacy and the pandemic. It was a good chance to describe all of the ways we use information to manage the risk of workplace exposure to COVID-19. We looked closely at the major information flows – screening, location tracking, exposure notification – and I even did a little riff on defense in depth. Slides below for your viewing pleasure.

One to watch – Drug testing case at Alberta CA

The Alberta Court of Appeal heard the Kellogg Brown & Root drug testing appeal on October 11th and has reserved judgement. The case will give Alberta’s highest court an important opportunity to consider the circumstances in which casual drug users are protected under human rights legislation based on the perceived disability doctrine. This has been an issue that has caused some uncertainty since the Ontario Court of Appeal’s landmark Entrop v. Imperial Oil judgement in 2000.

Kellogg Brown & Root is about an employee who was terminated 10 days into employment after a pre-employment drug test came back positive for cannabis. He was never impaired at work and testified that that he was only a casual marijuana user. In 2005, an Alberta Human Rights Panel dismissed the employee’s complaint because it was not based on any real or perceived disability and, alternatively, because the testing policy was not reasonably necessary.

In June 2006 the Alberta Court of Queen’s Bench reviewed all of the case law on perceived disability and acknowledged that there is a “difference of opinion” over the right of casual drug users to protection from discrimination. In the end, it chose to adopt the approach taken in Entrop, which allows for a finding of prima facie discrimination based on the circumstances in which the relevant distinction is made. As in Entrop, the Court held that the complainant was treated as if he was drug dependent and likely to report to work impaired. Recall that the policy in Entrop explicitly stated, “In the cycle of substance abuse, users frequently experimenting with drugs progress to the dependent user state later on.” The Court held that this approach to casual users could be implied in any zero tolerance policy and (criticizing a significant Canadian Human Rights Tribunal decision called Milazzo) held that an employer cannot defend against a discrimination claim by proving a subjective belief that the complainant was a casual user.

The Court then held that pre-employment testing was not reasonably necessary to satisfying the objective of “prohibiting workplace impairment.” Its reasoning is summarized in the following sentence: “While there is a rational connection between impairment and job performance, the link between a positive pre-employment urine test and workplace impairment is tenuous and uses predictions based on statistical risk to bar particular people.” More significantly, the Court suggested a number of ways by which the employer could have built a standard which was more accommodative and better connected to the goal of prohibiting (by predicting) workplace impairment.

Incidentally, and implicitly recognizing that the prima facie discrimination analysis in drug testing cases is tortuous, the Court commented that its okay that human rights legislation may be doing “the work of privacy rights.” Since Alberta employers are subject to employment privacy legislation (the Alberta Personal Information Protection Act) and since Oil Sands employers are clearly applying strict drug testing policies, we might expect a statement on drug testing from the Alberta Information and Privacy Commissioner in the near future. In fact, a PIPA complaint was filed against Kellogg Brown & Root that was recently dismissed on jurisdictional grounds. Until the Privacy Commissioner gets his chance to speak, the Kellogg Brown & Root Alberta Court of Appeal case is the one to watch.