INVESTIGATION REPORT
INVESTIGATION PC-980040-1
A College of Applied Arts and Technology
November 29, 1999
INTRODUCTION
Background of the Complaint
This investigation was initiated as a result of a complaint concerning a College of Applied Arts and Technology (the College).
The complainant has been employed as a teacher by the College since 1975. According to the complainant, in January 1998, he suffered a medical trauma. As a result, he began a medical leave of absence from the College. In a letter dated September 21, 1998, the complainant informed the College that he felt the College's treatment of him "has been such as to engender and maintain great stress in [his] life" and "that by engaging in such conduct, Management has breached various articles of the Collective Agreement, the Charter [of Rights and Freedoms], and various common-law and equitable duties owing to an employee".
On September 25, 1998, the College's Human Resources Manager (the HR Manager) wrote to the complainant seeking his consent to access the portions of his medical file in the Occupational Health Office pertaining to his current absence. In her letter, the HR Manager stated: "... if I do not receive from you the enclosed signed Release within five (5) days of today's date, the College will be taking action to terminate your employment forthwith for cause."
On October 7, 1998, the complainant's legal counsel replied to the HR Manager stating "... [the complainant] has complied with your demand to release medical information to you. However, [the complainant] is releasing this information under protest, under threat of being dismissed today if he refused."
Subsequently, the complainant made a complaint to the Ontario Human Rights Commission (OHRC) against the College, alleging that its management was harassing and discriminating against him on the basis of his handicap.
In the context of his complaint to this Office, the complainant states that he had no objection to his file being reviewed by the Occupational Health Nurse, but that the HR Manager is a personnel officer with no health care expertise or training, and is unqualified to read and understand the file. He goes on to argue that the purpose of the College's request to access his medical file goes beyond the original purpose for which the these medical records were obtained or compiled. In the complainant's view, the medial records were obtained and compiled for the purpose of determining benefit coverage while he was on medical leave from the College.
The complainant asserts that his privacy was unjustifiably invaded, contrary to the Freedom of Information and Protection of Privacy Act (the Act), when the HR Manager was granted access to his personal and highly sensitive medical files.
The College explains in its submissions that the Occupational Health and Safety Nurse, who had been the only staff person with access to the complainant's health records, resigned in September 1998. Following this resignation, the College explains that:
... the Human Resources Manager was designated by the President of the College as the person responsible for managing medical information, return to work activities, WSIB [Workplace Safety and Insurance Board] and other absences. The use of the medical records by the Human Resources Manager is and was consistent with the purpose for which the records were obtained.
In response to the complaint, the College submits that the Act does not apply to the records contained in the complainant's medical file because those records fall within the scope of section 65(6), and therefore are outside the jurisdiction of the Act. The College states that records covered by section 65(6) of the Act, and do not meet the requirements of any exceptions listed in section 65(7), are outsider the Commissioner's jurisdiction, and may not be the subject of a privacy complaint investigation.
Issues Arising from the Investigation
The following issues were identified as arising from the investigation:
(A) Do the records involved in this complaint fall within the parameters of sections 65(6) and (7) of the Act? If not,
(B) Was the information in question "personal information" as defined in section 2(1) of the Act? If yes,
(C) Was the personal information disclosed from the College's Occupational Health Office to the HR Manager, in compliance with section 42 of the Act?
RESULTS OF THE INVESTIGATION
Issue A: Do the records involved in this complaint fall within the parameters of sections 65(6) and (7) of the Act?
On November 10, 1995, Bill 7, the Labour Relations and Employment Statute Law Amendment Act, 1995 came into force. This bill amended the Act by adding sections 65(6) and (7). The legislation placed various categories of records concerning labour relations and employment-related matters outside the scope of the Act.
These sections state:
(6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:
Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.
Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.
(7) This Act applies to the following records:
An agreement between an institution and a trade union.
An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.
An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.
An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.
Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular complaint, and none of the exceptions listed in 65(7) are present, then the record is excluded from the operation of the Act and not subject to the Commissioner's jurisdiction. (Order P-1223)
Section 65(6)1
In Order P-1223, I set out the requirements an institution must establish in order for a record to fall within the scope of section 65(6)1. They are as follows:
the record was collected, prepared, maintained or used by the College or on its behalf; and
this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and
these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the College.
This approach to the interpretation of section 65(6)1, which applies equally to section 52(3)1, the equivalent provision in the Municipal Freedom of Information and Protection of Privacy Act, has been adopted and followed in a number of subsequent orders (see, for example, Orders M-815, P-1243, M-832, P-1253 and P-1257).
Although this test was established in the context of an appeal under Part II of the provincial Act, in my view, as a threshold jurisdictional issue, it is equally applicable in the context of records which are the subject of a complaint under Part III of that Act.
I will now apply this test to the circumstances of the present complaint.
Requirement 1
The College explains that the records consist of medical reports, nurses notes and other notes and correspondence contained in the complainant's medical file in the Occupational Health Office of the College, which pertain to the complainant's current absence from the College. The College submits that all of these records were collected or prepared, and are being maintained and used by or on behalf of the College. Copies of these records were included with the College's submissions.
I have examined the records and I am satisfied that they were collected, prepared, maintained and/or used by the College. Therefore, the first requirement has been established.
Requirements 2 and 3
The College submits that the records have been and continue to be maintained and used by the College in relation to proceedings or anticipated proceedings before a court or tribunal relating to either labour relations or the employment of the complainant by the College.
The following are selected quotations from the College's submissions on these two requirements of section 65(6)1:
As noted in the September 25, 1998 letter of [the HR Manager], the complainant has strongly demonstrated an unwillingness to return to work with the College following multiple leaves of absence. Since 1997, he has initiated over 40 grievances under the Collective Agreement between the College and [the union which represents the complainant].
The complainant has filed a human rights complaint against the College. ... This complaint gives rise to proceedings under the Human Rights Code before the [OHRC], and potentially before a Board of Inquiry appointed under the Code. The medical records now in question directly relate to this human rights complaint. ...
The complainant also commenced a Court Application in January 1998 seeking an extension of a paid leave of absence and/or secondment to [another college]. He sought leave to appeal to the Divisional Court which was denied. ...
The complainant has clearly demonstrated that he is litigious. In view of this, his continued employment and his entitlement to remain on a medical leave is an issue which will likely be the subject of proceedings before any or all of the courts, a grievance arbitration board or boards, the Labour Relations Board, and the Human Rights Commissioner and/or a Board of Inquiry appointed under the Human Rights Code. ... The maintenance and use of the Occupational health Office records which pertain to his medical leave of absence is related to both current proceedings as well as anticipated proceedings.
... [The complainant's grievances] are being pursued by his union on his behalf. These proceedings clearly relate to labour relations. The substance of his human rights complaint relates directly to his employment. ... The College further anticipates that the complainant will either file a grievance, initiate another human rights complaint, or begin a proceeding in court with respect to his entitlement to remain on a medical leave of absence, and to receive disability benefits during such a leave. Both of these issues relate directly to his employment.
Counsel for the complainant acknowledges that the medical records were collected by the College's Occupational Health Nurse, but submits that they:
... were not collected within the context of labour relations or employment-related issues. [The complainant's] medical records were not compiled in response to any complaints about treatment or an investigation of his performance within the work place. Rather, [the complainant's] medical records were put together for the purposes of determining benefits while he was on medial leave from the College.
With respect to sections 65(6) and 65(7), the complainant further submits that:
These sections do not apply to this matter. [The complainant's] medical files were not collected in anticipation of any proceedings before a court, tribunal or other entity relating to labour relation or an employment grievance, nor were they related to anticipated negotiations relating to labour relation or the employment of [the complainant] at [the College]. If the Legislature had intended all employee health records to be exempted, it could easily have said so. These medical records are private. [The complainant] consented to their disclosure only to the Occupational Health Nurse, and the Human Resources department at [the College] does not have an interest in [the complainant's] health records.
The complainant's submissions also make reference to the need to establish that the College "has an interest" in the records in order for them to fall within the scope of section 65(5). Although this wording is used in section 65(6)3, it is not present in section 65(6)1, and it is not necessary to establish "an interest" on the part of the College in order for records to meet the requirements of section 65(6)1.
In Order P-1314, Inquiry Officer Donald Hale made the following findings with respect to records contained in the appellant's personnel file, his "fact" file and other documents related to the quality of his work:
In my view, while the records were created prior to the institution of the appellant's grievance and OHRC complaint, they are now being used and maintained by the Ministry in relation to the continuing proceedings before the GSB [Grievance Settlement Board] and OHRC. For this reason, I find that these documents are being "used and maintained" in relation to these proceedings within the meaning of section 65(6)1.
In the draft investigation report, which was provided to both the complainant and the College for comment, I stated the following:
In my view, the findings of Order P-1314 are equally applicable to the circumstances of this complaint. I accept that the records at issue in this complaint were not originally collected or prepared in the context of proceedings or anticipated proceedings before a court or tribunal. However, that is not determinative of whether the requirements of section 65(6)1 are present. Section 65(6) has application where records are maintained or used by or on behalf of an institution in relation of proceedings or anticipated proceedings, regardless of whether they were originally collected or prepared in other contexts or circumstances. This finding is also consistent with a number of other previous orders (see, for example, Orders M-861, P-1438, P-1541, P-1554, P-1566).
In his response, counsel for the complainant argues that the draft report "fails to take proper account of the purpose for which the medical files were originally prepared". He further submits the following:
First, an examination of the purpose of maintaining or using documents is required in order to ensure the stated purpose of the Act is achieved. Indeed, this is consistent with the Interpretation Act which states that legislation for the public good "shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent meaning and spirit." ...
Therefore, in interpreting whether "maintained and used" in the Act should be interpreted as meaning "maintained or used for a specific purpose", or as meaning "maintained or used for any purpose" the Commission must decide whether this is consistent with the stated purpose of the Act. It is our submission that these words can only be interpreted as meaning "maintained or used for a specific purpose" in order to be consistent with the stated purpose of the Act. If this were not the case, any employer could render the protection afforded by the Act meaningless by maintaining and using records, and even acquiring them for a mala fides purpose, knowing that it could create a "proceeding or anticipated proceeding" to deprive the employee the protections found within the Act.
Moreover, it has been repeated by the Commission that section 65(6) is "record-specific" and "fact-specific". This must entail an examination of the facts relating to the original purpose of acquiring the records at issue, and comparing that purpose with the stated "labour-relations" purpose offered by the employer.
...[I]n order to examine whether the medical record "was maintained or used in relation to a proceeding or anticipated proceeding relating to labour relations" it is necessary to look at the original purpose for maintaining or using the medical record. The original purpose must be examined in order to ensure that the object and purpose of the Act is not contravened. ... When the original purpose of the maintaining or using the medical record is examined, it cannot be concluded that [the complainant's] records were maintained or used in relation to any proceeding or anticipated proceeding relating to labour relations.
With respect to the third requirement under section 65(6)(1), the complainant's counsel submits the following:
... Arguably, and as the College argues, the medical records will be relevant to [the complainant's] entitlement to long-term disability benefits. However, this is a potential dispute [the complainant] will have with the insurer, [named insurance company], not the College, and is therefore an insurance issue, not a labour-relations issue. ...
It is submitted the contents of the medical file are not relevant to any existing grievance or Human Rights complaint, given that the purpose of providing them was to determine benefits while on medical leave from the College. This is again an insurance concern, not a labour relations concern.
The complainant argues that a "purpose" test must be applied to the section 65(6) exclusion, that the relevant purpose is the original purpose for which the records were "produced" or created, that the records must be prepared, collected, maintained or used for a single purpose, and that the original purpose is determinative of whether section 65(6) applies to exclude the records from the Act. The complainant also argues that the records were not "produced" for the purposes of a proceeding or anticipated proceeding and that they are records in relation to an insurance matter and not in relation to a labour relations or employment related matter.
In Order P-1618, I stated the following:
In my view, section 65(6) must be understood in context, taking into consideration both the stated intent and goal of the Labour Relations and Employment Statute Law Amendment Act (Bill 7) - to restore balance and stability to labour relations and to promote economic prosperity; and overall purposes of the Act - to provide a right of access to information under the control of institutions and to protect the privacy of and provide access to personal information held by institutions.
However, consideration of the purposes of the statute as a whole cannot lead to the "reading out" of a provision in which the Legislature clearly intends to exclude certain matters from the ambit of the Act.
In order to fall within the exclusion, section 65(6) requires that the records, be prepared, collected, maintained or used in relation to specific purposes as set out in paras 1, 2 or 3. The provision does not in my view require that the specific purpose be confined to the original purpose for which the records were created and compiled, nor that the original purpose be in relation to any of the three categories of activity in paragraphs 1, 2 or 3.
The purpose for the creation of a record which is claimed to fall within the exclusion is relevant, and may be determinative where the institution claims only that the record was "prepared" in relation to a matter set out in paragraphs 1, 2 or 3. However, in my view, the purpose for creation or preparation could not be solely determinative where the institution claims that the record is being compiled, maintained or used.
The listed activities are "compiled, prepared, maintained or used". Because the word "or" is disjunctive, and therefore each of the listed activities is separate, a record may fall within the exclusion where it is prepared or compiled or maintained or used in relation to the matters in paragraphs 1 to 3. Where a record is compiled or maintained or used in relation to the matters, that is sufficient for the exclusion - it need not also have been specifically prepared in relation to the matters.
The complainant has provided citations of cases where the words "maintain" and "use" have been interpreted in their particular contexts. He submits that "maintain" and "use" have been judicially considered to mean the maintenance and use in relation to a single purpose. I have obtained and read the cases. Each of the cases interprets the words within a specific statutory or contractual provision and context, such as the use of rooms in an apartment, (R. v. Grandview Holdings (1965) 1965 CanLII 824 (BC SC), 53 W.W.R. 308), the use of a car under an insurance contract (Findlay v. Madill 1981 CanLII 2983 (ON CA), 111 D.L.R (3d) 180) and the maintenance of a highway (Haydon v. Kent County Council, [1978] 2 All E.R. 97 at p. 109), and are not interpretations of the words at large. The decisions are not helpful in interpreting the use and maintenance of records by an institution and would not in my opinion assist the complainant in his contention that "maintenance" and "use" are limited in law to a single purpose.
In examining the meaning of "maintained", in the Oxford Concise Dictionary, 8th ed., the main definition reads: "cause to continue; keep up, preserve ...". I adopt the Dictionary definition, so that for the purposes of section 65(6) maintained means "continued, kept up, preserved ..."
Applying this definition to the provision, if an institution prepares records, or obtains records from one or more than one sources, or keeps, or preserves and keeps them in relation to the matters in paragraphs 1, 2 or 3, the records would be excluded. The purpose for the activity is relevant - it must be "in relation" to the following paragraphs. The original purpose for the creation of the record may be relevant evidence in determining whether the records are being compiled, maintained or used "in relation to" the matters in paragraphs 1 to 3. The result is that records which may originally have been protected under Part III of the Act, lose their character as protected records once the institution, in accordance with section 65(6), decides to collect, maintain or use them in relation to the purposes identified in paragraphs 1 to 3.
In previous orders involving section 65(6) (or section 52(3) of the municipal Act), I made the following interpretations of some of the terms used in the section:
I am of the view that a dispute or complaint resolution process conducted by a court, tribunal or other entity which has, by law, binding agreement or mutual consent, the power to decide the matters at issue would constitute "proceedings" for the purpose of section 65(6)1. (Order P-1223)
In my view, in order to fall within the definition of [the term anticipated proceedings], there must be a reasonable prospect of such proceedings at the time of the preparation of the record - the proceedings must be more than just a vague or theoretical possibility. (Order P-1223)
A number of tribunals have been established by statute as part of the administrative justice system in Ontario. The Ontario Labour Relations Board, the Workers' Compensation Board and the Environmental Assessment Board are some of the more well-known examples, but there are dozens of other bodies performing similar functions outside the regular court system. What distinguishes these bodies as "tribunals" is that they have a statutory mandate to adjudicate and resolve conflicts between parties and render decisions which affect legal rights or obligations. In my view, this is the appropriate definition for the term "tribunal" as it appears in section 52(3)1. (Order M-815)
In the context of section 65(6), I am of the view that if the preparation (or collection, maintenance or use) of a record was for the purpose of, as a result of, or substantially connected to an activity listed in sections 65(6)1, 2 or 3, it would be "in relation to" that activity. (Order P-1223)
I find that "labour relations" for the purposes of section 65(6)1 is properly defined as the collection relationship between an employer and its employees. (Order P-1223)
In Order P-1618, I also considered whether the provision in section 65(6)1, is "time sensitive". I found that:
... in order for section 65(6)1 to apply to these records in the context of the present appeal, it must be established that the proceedings or anticipated proceedings referred to are current or are in the reasonably proximate past so as to have some continuing potential impact for any ongoing labour relations issues which may be directly related to the records.
Hearings before an arbitrator or arbitration board and the OHRC have also been recognized as proceedings before a tribunal for the purposes of sections 65(6)1/52(3)1 (Orders M-832, M-861 and P-1314).
Applying these various interpretations to the particular circumstances of this complaint, I find that:
- the grievance and/or human rights complaint processes involving the College and the complainant constitute proceedings before a tribunal for the purposes of section 65(6)1;
- the College is currently maintaining the records in question in relation to the current, as well as anticipated proceedings dealing with these grievances and human rights complaint;
- the records are being maintained for the purpose of or substantially connected to these proceedings and anticipated proceedings, and are therefore "in relation to" these activities;
- the proceedings involving the complainant's grievances relate to the collective relationship between an employer and its employee and therefore fall within the definition of "labour relations"; and.
- proceedings involving the complainant's human rights complaint relate to the "employment of a person" within the meaning of section 65(6)1, as the complainant's employment by the College gave rise to the proceedings before the OHRC.
Therefore, I am satisfied that the College has established Requirements 2 and 3.
In summary, I find that the College has established all three parts of the test for exclusion under section 65(6)1. I have also reviewed the exception at section 65(7) and find that it does not apply in the circumstances of this complaint.
Conclusion: Section 65(6)1 of the Act applies to the records contained in the complainant's medical file. As such these records are removed from the scope of the Act and fall outsider the Commissioner's jurisdiction.
Because the records fall outside the jurisdiction of the Act, the remaining two issues arising from this investigation are no longer applicable.
SUMMARY OF CONCLUSIONS
- Section 65(6)1 of the Act applies to the records contained in the complainant's medical file. As such these records are removed from the scope of the Act and fall outsider the Commissioner's jurisdiction.
November 29, 1999
Tom Mitchinson Assistant Commissioner