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

Summary:

In this case, the Grievor, Ms. B.A. worked as a Regular Part-Time Dietary Aid at St. Patrick’s Home of Ottawa (St. Pat’s). In addition to working at St. Pat’s the Grievor worked at West End Villa Extendicare (West End Villa) as a part-time Dietary Aid/Dishwasher. In August 2013, St. Pat’s requested that the Grievor provide a medical certificate indicating her fitness and ability to perform her position at St. Pat’s. This request was made in response to the Grievor’s comments that she required accommodation at her other workplace, West End Villa. In September, a medical certificate was supplied to St. Pat’s which read as follows: “pt is able to perform the duties of Dietary Aid at St Pat’s home”. In October of 2013 West End Villa began to question whether the medical restrictions that the Grievor was presenting were legitimate. West End Villa, knowing that the Grievor was employed at St Pat’s, contacted St. Pat’s and requested information about the Grievor’s work situation including whether she had worked her regularly scheduled shifts, whether she had requested any workplace accommodations or provided any work related restrictions, her hours of work and length of shifts and whether St. Pat’s had in fact been accommodating her. After considering this request, St. Pat’s disclosed to West End Villa that the Grievor was not currently being accommodated, had no work-related restrictions and that she was working her regularly scheduled shifts. In addition, St. Pat’s provided a copy of the medical note the Grievor had supplied to West End Villa. After this disclosure of information by St. Pat’s to West End Villa, St. Pat’s apologized to the Grievor indicating that the disclosure of information was wrong. In this case it was found that St. Pat’s breached the Occupational Health and Safety Act in the disclosure of medical information. In addition it was found that the release of the Grievor’s medical information to West End Villa constituted harassment and that the sharing of medical information amounted to the Tort of Invasion of Privacy or Intrusion on Seclusion.

Questions to be Determined:

1. Does the sharing of the medical information amount to a breach of the Occupational Health and Safety Act?

2. Does the release of the medical information constitute Harassment?

3. Does the sharing of the medical information amount to the Tort of Invasion of Privacy or Intrusion on Seclusion?

Findings:

1. Does the sharing of the medical information amount to a breach of the Occupational Health and Safety Act?

YES

2. Does the release of the medical information constitute Harassment?

YES

3. Does the sharing of the medical information amount to the Tort of Invasion of Privacy or Intrusion on Seclusion?

YES

Reasoning:

1. In this case it was found that the sharing of medical information amounted to a breach of the Occupational Health and Safety Act.

Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case. The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor. Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute. The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it. Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it (p. 14).

2. In this case it was found that the release of medical information constituted harassment under the definitions provided in the collective agreement.

The release of medical information about one’s personal health, regardless of the contents of the note, is objectively offensive and embarrassing. It can also cause humiliation. It is not sufficient for this Employer to say that the contents of the note in question do not disclose any medical conditions that would stigmatize or cause embarrassment to a reasonable person. Any medical information is personal, private and must remain confidential. The nature and extent of information that may be revealed in a medical note may have a bearing on the remedy available when there has been improper disclosure, but the disclosure of personal medical information of any kind is very disrespectful and offensive and therefore amounts to harassment as defined by these parties in this Collective Agreement (p. 14-15).

3. In this case it was determined that the sharing of medical information amounted to the Tort of Invasion of Privacy or Intrusion on Seclusion.

The Agreed Facts reveal that although this Employer’s Human Resources department and contractor acted in the honest belief that they were doing no wrong, the release of medical information was done deliberately and done without regard to the Employer’s Confidentiality Policy and without seeking legal advice. Therefore, it was reckless and improper. This was an intrusion into the Grievor’s private medical affairs. Any reasonable person would be offended by such conduct and would suffer distress as a result. Accordingly, the elements of “intrusion on seclusion” or invasion of privacy have been established. However, the Court of Appeal also made it clear that such a finding will not normally result in significant monetary damages (p. 16).

Remedy:

  1. The Employer is ordered to require any of its contractors or agents that have any interaction with residents or staff to abide by its Confidentiality Policy and to sign its Confidentiality Agreement;
  1.  I declare that by disclosing the Grievor’s confidential medical information without her consent, the Employer breached the Collective Agreement, the Occupational Health and Safety Act and committed the tort of Intrusion on Seclusion;
  1. The Employer is ordered to comply with and require compliance with its Confidentiality Policy; and
  1. The Grievor shall be paid the sum of $1,000.00 as damages as a result of the above.