Ontario occupational health record law in deep need of correction

Dan Michaluk1

In November 2020, an Ontario arbitrator held that an employer violated the law by providing its
records to its legal counsel without first obtaining a grievor’s consent. She did so by applying a
line of case law we must correct lest other employers face a similar incursion into the solicitor-
client relationship.

The muddled case law

The facts in OPSEU v Orillia Soldiers Memorial Hospital2 are unremarkable. The hospital faced
four grievances that alleged a failure to accommodate a medical condition. It retained external
counsel, and its occupational health department unilaterally sent counsel the grievor’s medical file.
It sent the same file to OPSEU, who grieved a violation of the collective agreement, the Personal
Health Information and Protection Act (PHIPA) and the Occupational Health and Safety Act (the
OHSA) upon learning of the disclosure to hospital counsel. Arbitrator Abramsky upheld the
grievance.

Ms. Abramsky’s finding turned on a narrow reading of a provision in PHIPA that deems
information in certain records held by health information custodians not to be “personal health
information.” Section 4(4) of PHIPA says:

Personal health information does not include identifying information contained in

a record that is in the custody or under the control of a health information custodian
if,

(a) the identifying information contained in the record relates primarily to one or
more employees or other agents of the custodian; and

1
Information and data security lawyer and partner at BLG. These are my views alone, and do not necessarily reflect
the views of my firm or its clients. I welcome feedback at dmichaluk@blg.com.
2
Orillia Soldiers’ Memorial Hospital v Ontario Public Service Employees’ Union, Local 383, 2020 CanLII 91949
(ON LA), https://canlii.ca/t/jbrr2.

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 (b) the record is maintained primarily for a purpose other than the provision of
health care or assistance in providing health care to the employees or other agents.

Halayna Perun and the other authors of the Guide to the Ontario Personal Health Information Act
explain that the legislature meant this provision to establish equal treatment of employers who are
health information custodians and all other employers, who are not subject to PHIPA in their
handling of medical information.3

Nonetheless, Ms. Abramsky held that she was bound to follow a Divisional Court finding in a
2006 case called Hooper in which the Court held that a hospital’s occupational health department
carried out a fitness for work assessment primarily for health care purposes – i.e., to “maintain an
individual’s physical or mental condition.” According to the Court, the hospital was therefore in
custody of a record of personal health information subject to PHIPA.4

Like other arbitrators before her, Ms. Abramsky held that she was bound to follow Hooper. She
said:

I also agree with Arbitrator Slotnick, at par. 32, that an arbitrator is “bound by a
court decision squarely on point on a question of statutory interpretation.”
Consequently, I am bound by the Court’s interpretation of PHIPA, unless it may be
distinguished.5

Ms. Abramsky was not persuaded by the position now clearly taken by the Information and Privacy
Commissioner/Ontario (the IPC), who has held a handful of times that PHIPA does not govern
records created in the course of a medical assessment.6 The IPC’s most recent finding post-dates

3
Halayna Perun et al, Guide to the Ontario Personal Health Information Act (Toronto: Irwin Law, 2005) at 87. Ms.
Perun and her co-authors were the primary legal counsel to the Ministry of Health and Long-Term Care in its
development of PHIPA. The authors explain separately that employers to not become health information custodians
by virtue of handling medical information: at 43. Their conflicts with a decision of Arbitrator Etherington, who
followed Hooper in holding that Ontario Power Generation was subject to PHIPA in its handling of employee medical
information: Society of Energy Professionals v. Ontario Power Generation, 2009 CarswellOnt 5637.
4
Hooper v. College of Nurses of Ontario, 2006 CanLII 22656 (ON SCDC), at para 27, https://canlii.ca/t/1nw38#par27.
5
Orillia Soldiers’, at para 26, https://canlii.ca/t/jbrr2#par26.
6
See Adjudication Summary: Return to work program not a health information custodian (HC-050014-1), Morris
(Re), 2015 CanLII 54751 (ON IPC), https://canlii.ca/t/gkzf4 and Sunnybrook Health Sciences Centre (Re), 2021
CanLII 70452 (ON IPC), https://canlii.ca/t/jhd2v.

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the Orillia Soldiers’ decision. In it, the IPC simply declines to follow Hooper in its application to
the facts.7 For reasons I explain below, Ms. Abramsky ought to have done the same.

Ms. Abramsky also held that the hospital breached section 63(2) of the OHSA:

No employer shall seek to gain access, except by an order of the court or other
tribunal or in order to comply with another statute, to a health record concerning a
worker without the worker’s written consent.

Ms. Abramsky read this text – which includes the ambiguous words “access” and “health record”
– literally, noting the absence of language that would suggest section 63(2) of the OHSA applies
only to records held by third-parties: “That limitation [from application to third parties] does not
appear in the provision.”8

We must set the law straight

The Orillia Soldiers’ case is important because it illustrates why the law requires correction. As
interpreted by Arbitrator Abramsky, PHIPA and the OHSA preclude an employer from providing
its own records to its legal counsel for counsel’s legitimate purpose. The prohibition would
seemingly apply equally to advisory purposes and litigation purposes. In the context of litigation,
employer counsel is blinded from looking at their client’s own records and must rely on union
counsel to produce. This perverse consequence conflicts with good public policy.

Every Canadian privacy statue allows for personal information to flow between a custodian and
its legal counsel, some expressly protecting this important information flow. Section 37(h) of
PHIPA, for example, allows for non-consensual use of personal health information, via counsel:

…for the purpose of a proceeding or contemplated proceeding in which the

custodian or the agent or former agent of the custodian is, or is expected to be, a
party or witness, if the information relates to or is a matter in issue in the proceeding
or contemplated proceeding.9

7
Sunnybrook Health Sciences Centre, at para 45, https://canlii.ca/t/jhd2v#par45.
8
Orillia Soldiers’, at para 41, https://canlii.ca/t/jbrr2#par41.
9
See also, e.g., Personal Information Protection Act, SBC 2003, s.18(1)(m).

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Ms. Abramsky did not consider this express allowance, the apparent purpose of either the PHIPA
or OHSA provisions at issue or the public policy in fostering the integrity of solicitor-client
relationships. This well-recognized public policy is why courts will only sparingly order counsel’s
eyes only protective orders.10 It is also why courts will not read a statute to abrogate solicitor-client
privilege except based on clear, precise and unequivocal language.11 Going forward, we must
invite a more policy-focused and purposive analysis.

Hooper is not binding

The problem in the law originates with the Divisional Court’s finding in Hooper.

Hooper was an application for review of investigatory action taken by the College of Nurses. The
applicant - a nurse discharged by her hospital employer - applied for a review of the College’s act
of acquiring records from her employer’s occupational health department. The College responded
to the application and the hospital was not a party. Accordingly, the employer who had custody of
the records at issue and who could speak to the function of its occupational health department was
not present. It was in this context that Court made its mixed finding of fact and law – i.e., the Court
applied the legal standard set out in section 4(4) of PHIPA to a particular set of facts.

Mixed findings of fact and law are not binding on lower courts, let alone binding on administrative
tribunals who are not subject to the stare decisis principle. Despite Hooper, labour arbitrators have
a duty to examine the facts and evidence and reach a determination as to whether or not section
4(4) of PHIPA applies.12 This is how the IPC has addressed Hooper; it has declined to follow the
Divisional Court’s mixed finding of fact and law in its application to new facts. The IPC’s
approach is valid, and labour arbitrators should adopt it.

10
See e.g., M.P. Group Ltd. v. Skyservice Business Aviation Inc., 2013 ONSC 4956 (SCJ-Master) at para. 22 and
PharmaScience Inc. v. GlaxoSmithKline Inc., 2007 FC 360 (CanLII), 2007 F.C. 360 at para. 1.
11
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII), [2008] 2 SCR 574,
at para 26, https://canlii.ca/t/1zhmr#par26.
12
Halifax Employers Association v. International Longshoremen's Association, et al, 2004 NSCA 101 (CanLII), at
para 82, https://canlii.ca/t/1hq97#par82.

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Hooper misconstrues the role of a medical assessor

Whatever facts were before the Divisional Court in Hooper, they led to a conclusion that is at odds
with the role of a medical assessor – a medical professional retained in consulting capacity by a
person other than the assessee. The primary duty of an assessor is therefore to their retaining
principal. The assessor is not in a doctor-patient relationship nor is an assessor a fiduciary to their
assessee. This is the law in Ontario as set out in K. (H.V.) v. Children's Aid Society of Haldimand-
Norfolk. 13

In H.V.K, the plaintiff claimed damages arising out of an assessment conducted by a doctor
retained by a Children’s Aid Society. The plaintiff claimed a breach of fiduciary-duty based on an
allegation that the doctor formed an “unprofessional alliance with the Society.” Justice Himel
struck the claim as disclosing no reasonable cause of action because there was no doctor-patent
relationship and no fiduciary duty. She explained:

44 Although her assessment involved an interview or examination of the

plaintiffs, she did not have a general duty of care to them. A duty of care is owed
by an assessor to the retaining party: X (minors) v. Bedfordshire County Council,
[1995] 3 All E.R. 353 (U.K. H.L.), at 383-4; Kapfunde v. Abbey National, [1998]
EWCA Civ 535 at 7-8. In X (minors) v. Bedfordshire County Council (U.K. H.L.),
supra, the defendant psychiatrist interviewed a child and as a result of a disclosure
by the child, believed that the child was abused by the mother's current boyfriend.
It was later determined that the abuser was the cousin. The local authority removed
the child from the mother's care. The mother brought a claim against the local health
and child protection authorities and the psychiatrist. The House of Lords struck out
the claim against the psychiatrist because the psychiatrist owed no duty to the child
or the mother when advising the local authority that the child should be taken into
care. Lord Browne-Wilkinson said at 383-4:

The social workers and the psychiatrist were retained by the local authority
to advise the local authority, not the plaintiffs. The subject matter of the

13
K. (H.V.) v. Children's Aid Society of Haldimand-Norfolk, 2003 CarswellOnt 1487 (SCJ). See also Branco v.
Sunnybrook & Women's College Health Sciences Centre, 2003 CarswellOnt 3160 (SCJ).

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 advice and activities of the professionals is the child. Moreover, the
tendering of any advice will in many cases involve interviewing and, in the
case of doctors, examining the child. But the fact that the carrying out of the
retainer involves contact with and a relationship with the child cannot alter
the extent of the duty owed by the professionals under the retainer from the
local authority. The Court of Appeal drew a correct analogy with the doctor
instructed by an insurance company to examine an applicant for life
insurance. The doctor does not, by examining the applicant, come under any
general duty of medical care to the applicant. He is under a duty not to
damage the applicant in the course of the examination: but beyond that his
duties are owed to the insurance company and not to the applicant. ....In my
judgment in the present cases, the social workers and the psychiatrist did
not, by accepting the instructions of the local authority, assume any general
professional duty of care to the plaintiff children. The professionals were
employed or retained to advise the local authority in relation to the well-
being of the plaintiffs but not to advise or treat the plaintiffs.

45 In the case of Kapfunde v. Abbey National, supra, at 8, the England and Wales
Court of Appeal held that there was no special relationship between a physician
who had been asked by an employer to review an employee's medical history and
who assessed the employee as not suitable for employment and the employee. No
duty of care was created with the employee and the physician's duty was to the
retaining body and not to the subject matter of the assessment.14

This understanding of an assessor’s role and duty is essential to the efficacy of the assessor-
assessee relationship; without it, the assessor would be in a conflict of interest. And when one
understands the role and duty of an assessor this way, it is improper to conclude that a record
produced by an occupational health department on behalf of an employer is “maintained primarily
for a purpose other than the provision of health care.” In other words, it is improper to make the
same finding made by the Divisional Court in Hooper.

14
Supra, at paras 44, and 45.

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Correction is consistent with legislative intent and privacy protection

Viewing the assessor-assessee relationship as producing records excluded from PHIPA is

consistent with the apparent legislative intent. Around the time the province enacted PHIPA, the
Ministry of Health and Long-Term Care gave the following guidance about the scope of the term
“health care”:

The definition of “health care” refers to an examination, procedure, etc. “that is

done for a health-related purpose.” The inclusion of this language, “health related
purpose,” limits the scope of the definition of “health care” so as to exclude many
activities, etc. from “health care.” If the sole way in which a person would be
captured by the definition of “health information custodian” would be through the
language “a person whose primary function is to provide health care for payment”
in the definition of “health care practitioner,” it is necessary to consider whether
the services that [the person] provide[s] are performed for a “health-related
purpose.” Transportation services, for example, are generally not provided “for a
health related purpose.” Similarly, assessments of potential parents performed to
assist an adoption [agency] to decide whether to place a child with the potential
parents are not provided “for a health related purpose.” Therefore, the services of
the person in question and the services to be provided must be considered to
determine whether he or she is a “health information custodian.”15

Viewing the assessor-assessee relationship as producing records excluded from PHIPA is also
consistent with the need to protect employee privacy. It is indisputable that employers owe
important confidentiality duties to employees regarding their health information. PHIPA imposes
such duties in section 49 – the “recipient” duty provision. The duty of a recipient is to use and
disclose information only for the purposes it was obtained and only as necessary for the purposes
it was obtained. It is a flexible duty that gives employers the ability to stipulate their legitimate
occupational health purposes (in policies and consent forms) and use information on an as needed

15
Ontario, Personal Information Protection Act 2004: An Overview for Health Information Custodians (Toronto:
Ministry of Health and Long-Term Care, August 2004) at 34. Halayna Perun explain, that the Ministry had the health
sector as its focus and the term “health care” should “not be interpreted so as to broaden the scope of the Act so that
it no longer has the health care sector as its focus”: Perun et al, at 41.

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basis. It would not preclude the disclosure to counsel that led to the troubling outcome in Orillia
Soldiers’.

Conclusion – employers must do better

Although this writing is firstly a case law critique, employers must understand that they share
responsibility for the problem. Employers (a) have failed to properly articulate that they hire
occupational health professionals as consulting experts to assess employees and provide advice to
human resources, (b) sometimes assign occupational health professionals health care duties (e.g.,
administering flu shots or first aid) without clearly delineating these duties and without clearly
separating the resulting records and (c) have self-imposed restrictions on using personal health
information using “person-based” rather than “purpose-based” consent forms.

In Hooper, for example, the applicant signed a consent that allowed her treating physician to
transfer information to her employer’s occupational health department. The consent said, “I
understand that this information is privileged and confidential and intended only for the use of
staff in the Occupational Health & Safety Department.”16 Is it any wonder that this person-based
consent led the Divisional Court to treat the hospital’s occupational department as if it were a
separate legal entity from the hospital? And without a purpose statement in the consent, how can
one be too critical of Divisional Court for blurring the line between assessment and health care?

The good news, then, is that employers have the power to fix this problem themselves. They can
do so by:

 re-writing their policies to clearly articulate that they employ occupational health
professionals as consulting experts with a primary duty to the organization;

 declining to assign health care duties to occupational health professionals without taking
special efforts to delineate this function and keep health care record holdings separate; and

16
Hooper v. College of Nurses of Ontario, 2006 CanLII 22656 (ON SCDC), at para 15,
https://canlii.ca/t/1nw38#par15.

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  using purpose-based consent forms that clearly set out all legitimate occupational health
purposes, including a purpose related to resolving legal disputes.

We have lived with the burden of Hooper for over 15 years. The time for employers to help correct
course starts now.

November 15, 2021

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