Arbitrator distinguishes Hooper, gives counsel direct access to disability management file

The Ontario law governing disability management and occupational health records is in disarray, though it did not stop an Ontario arbitrator from reaching the correct outcome in a decision released in November of last year. Arbitrator Colin Johnston held that neither the Personal Health Information Act nor the Occupational Health and Safety Act precluded a hospital from providing its disability management file to its legal counsel so counsel could review it for production purposes.

Although the right outcome, Arbitrator Johnston reached it through (understandably) conservative means, distinguishing the Orillia Soldiers’ Memorial Hospital case which precluded such a disclosure and the Divisional Court decision in Hooper. Further correction is required, as I argue here.

Health Sciences North v Ontario Nurses’ Association, 2022 CanLII 106545 (ON LA).

Ontario occupational health record law in deep need of correction

Here is the paper I submitted in participating on a panel at the LSO’s Human Rights Summit last week. The title speaks to the content, which is about the wart that is the Divisional Court finding in Hooper v. College of Nurses of Ontario. Time for Hooper to go.

View this document on Scribd

GSB finds PHIPA doesn’t govern occupational health information

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).

IPC says a physician acting as assessor is not a health information custodian

On August 25th the IPC/Ontario held that a physician retained to complete a Custody and Access Assessment Report was not acting as a health information custodian, thereby giving helpful guidance on an issue that has been subject to great confusion.

The IPC explained:

The definition of “health care practitioner” in section 3(1) is premised on the fact that the health care practitioner must be providing health care. Further, “health care” as defined in section 2 of PHIPA must be for a “health-related purpose.” In my view, on the facts of this particular case, the service provided by Dr. Morris was not provided for a health-related purpose, but rather for the purpose of assisting the parents, and possibly the courts, to develop a parenting plan which would function in the best interests of the child. Therefore, and for the further reasons set out below, I find that Dr. Morris was not providing health care when he provided a service in this capacity. Consequently, I find that Dr. Morris was not a “health information custodian” as defined in section 3(1) for the purpose preparing the Custody and Access Assessment Report. As set out below, this interpretation of PHIPA is consistent with the decision of this office in complaint number HC-050014-1, with the policy behind subsection 20(2) of PHIPA, with the decision of the Federal Court of Appeal in Wyndowe v. Rousseau, and with public guidance provided by the Ministry of Health and Long-Term Care in relation to the definition of “health care.”

The IPC also dealt with the Divisional Court decision that has contributed to the confusion – Hooper v College of Nurses of Ontario. The IPC said:

The Divisional Court held that pursuant to section 76 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, the investigator appointed by the College of Nurses of Ontario had the jurisdiction to request and use the records from the Sunnybrook and Women’s College Health Sciences Centre. The Divisional Court further held that the Sunnybrook and Women’s College Health Sciences Centre had the jurisdiction to disclose these records to the College of Nurses of Ontario. The Divisional Court stated that the Occupational Health and Safety Department was providing health care and therefore the information contained in the records at issue was personal health information as defined in section 4 of PHIPA. This decision does not discuss how this interpretation of “health care” would more broadly affect the collection, use, and disclosure of personal health information on the basis of assumed implied consent pursuant to section 20(2) of PHIPA.

On my review of this decision, it was not necessary for the Divisional Court to decide whether or not the Occupational Health and Safety Department was providing health care and therefore that the information contained in the records was personal health information. If they were not records of personal health information, the disclosure would not be subject to PHIPA. Alternatively, if they were records of personal health information, the disclosure would be permitted, as the Divisional Court noted, pursuant to sections 9(2)(e) and 43(1)(b) of PHIPA. As a result, the statement by the Divisional Court that the Occupational Health and Safety Department was providing health care and that the information in the records was personal health information is obiter dicta as it was unnecessary to the decision in the case.

The decision in Hooper is difficult to reconcile with that in Wyndowe, where the Federal Court of Appeal confirmed that physicians performing an independent medical examination are not “health information custodians” for the purpose of PHIPA. I note that in the Hooper case, the Divisional Court did not have this office’s interpretation of section 20(2) of PHIPA or the findings in HC-050014-1 before it. In all these circumstances, I am satisfied that the decision in Hooper, as it relates to what constitutes health care and personal health information, is not binding on me.

This is very helpful, in particular to employers who often face an argument that the health care practitioners they retain as assessors and consultants as subject to the “custodial” duties in PHIPA. The only section of PHIPA that typically binds employers and their assessor/consultants is section 49.

Morris (Re), 2015 CanLII 54751 (ON IPC).

BC employee medical information case of note

On August 7th, British Columbia labour arbitrator Julie Nichols issued a decision that addressed the discharge of an employee who refused to consent to an independent medical examination.

The decision is notable for two reasons.

First, the facts are common. The employee went off and provided medical evidence from a family physician that indicated he needed to change jobs on account of an “acute stress/anxiety reaction.” After receiving three communications from the family physician that were not helpful, the employer sought an IME based on a discretion set out in the collective agreement. Arbitrator Nichols held the employer acted reasonably in the circumstances because it had grounds to question whether the employee had “medicalized” a workplace issue.

Second, the award deals with the scope of information available to an IME provider. Arbitrator Nichols held that non-medical parties (employers, unions, employees) are not in a good position to determine the information needed to conduct an IME and that a reasonable IME process contemplates the collection of some extraneous information by the IME provider. The form at issue permitted the IME physician “to review copies of all medical and/or employment records related to my condition that will assist” and limited this permission by date range. Arbitrator Nichols held the form was reasonable.

Metro Vancouver v Greater Vancouver Regional District Employees’ Union, 2014 CanLII 74955 (BC LA).