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HomeMy WebLinkAboutGrievor 20-11-25In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: ORILLIA SOLDIERS’ MEMORIAL HOSPITAL -and- ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 383 Privacy Breach Grievance OPSEU File 2019-0383-0002 Arbitrator: Randi H. Abramsky Appearances For the Employer: Scott T. Williams Counsel For the Union: Lauren Tarasuk Counsel Elie Waitzer Student-at-Law Hearing: November 11, 2020, via teleconference AWARD 1. At issue is whether the Employer, Orillia Soldiers’ Memorial Hospital, breached the Grievor’s rights under the collective agreement, the Personal Health Information Privacy Act (“PHIPA”) and the Occupational Health and Safety Act (“OHSA”) by directing its Occupational Health department to release the Grievor’s Occupational Health file to its outside counsel, without the Grievor’s consent or an arbitral order to do so. Facts 2. The parties’ proceeded by way of an Agreed Statement of Facts and relevant documents, as follows: 1. The Ontario Public Service Employees Union (the “Union”) and the Orillia Soldiers’ Memorial Hospital (the “Hospital”) are parties to the collective agreement that is attached at Tab 1. 2. The Hospital maintains an Occupational Health and Safety Policy and Procedure with a Confidentiality of Employee Health Information Policy which is attached at Tab 2. 3. The Grievor was hired at the Hospital in or around January 1994. The Grievor was originally employed in the housekeeping department until she was hired as a Clerk in or around July 1999. 4. As a Clerk, the Grievor’s job duties include but are not limited to: answering and directing phone inquiries, booking transportation, record keeping, printing/faxing/photocopying, maintaining patient charts, maintaining and ordering supplies. 5. On or about February 28, 2017, the Hospital modified operations and extended shifts in the newly consolidated IMRS (Integrated Medical Rehab Services) unit to include 12 hour extended tours. 6. The Grievor alleges that she has migraines that were exacerbated by the change of extended shifts. The Grievor sought accommodation and submitted medical documentation to the Hospital on or around July 24, 2017 outlining her restrictions including a maximum of 8 hour shifts. 7. On or about October 25, 2017, the Union on behalf of the Grievor filed Grievance alleging that the Hospital violated Article 18 Hours of Work, Article 19 Premium Payment, and Article 4 Management Rights, including an applicable Articles, Labour Laws, Statutes or Legislation in that her schedule changed to include 12 hour shifts in the absence of a Memorandum of Agreement for Extended Tour Agreement in pace. The grievance is attached at Tab 3. 8. On or about November 17, 2017, the Union on behalf of the Grievor filed a grievance alleging that the Hospital violated Article 4 of the Collective Agreement and breached legislation as it failed the duty to accommodate. The grievance is attached at Tab 4. 9. On or about February 23, 2018, the Union on behalf of the Grievor filed a grievance alleging that the Employer violated Articles 4 and 6 of the Collective Agreement along with the Ontario Human Rights Code by entering the Grievor in the Attendance Management Program and holding a Step 1 and Step 2 meeting as a form of disciplinary action while not providing accommodation. The grievance is attached at Tab 5. 10. On or about September 6, 2018, the Union on behalf of the Grievor filed a grievance alleging that the Hospital violated Article 4 of the Collective Agreement and refused to follow proper legislation in a duty to accommodate in a reasonable period of time which left the Grievor unable to accumulate sick time and forced her to take time banked or vacation time in order to get paid for actual sick time. The grievance is attached at Tab 6. 11. These 4 grievances were consolidated and referred to arbitration before Arbitrator Barry Stephens. The first date before Arbitrator Stephens was scheduled for February 12, 2019. The Hospital retained Andrew Zabrovsky (“Zabrovsky”) of Hicks Morley to represent the Hospital in this proceeding. 12. On or about January 10, 2019, Amy Hope, Manager of Human Resources for the Hospital, requested that Wendy Tolbini, Abilities Management and Wellness Specialist (“Tolbini”) provide a copy of the Grievor’s occupational health file to Zabrovsky. Hope’s email to Tolbini is attached at Tab 7. That email states as follows: From: Amy Hope Sent: Thursday, January 10, 2019 3:25 PM To: Wendy Tolbini Cc: Andrew Zabrovsky [email omitted]; Sarah Kitchen, Kirsten Payne Subject: OH File Request – [name omitted] Importance: High Hi Wendy, We are preparing for Arbitration. Please provide a copy of the Occ. Health file for [the Grievor] to our legal counsel, Andrew Zabrovsky [email omitted] at your earliest convenience. Thank you, Amy Amy Hope CHRL Interim Manager, Human Resources Orillia Soldiers’ Memorial Hospital … 13. Tolbini couriered the documents attached at Tab 8 (now indexed for convenience) to Zabrovsky. The Hospital provided the file to Zabrovsky without seeking the Grievor’s express consent and without seeking an order from Arbitrator Stephens. Tolbini did not share the documents with HR. The file contains a great deal of medical information relating to the Grievor’s requests for accommodation, but includes many other health records, immunization records, medical notes and discussions from the start of her employment in 1994 until it was disclosed in early 2019. 14. On or around February 6, 2019, Indika Chandeskara, Grievance Officer for the union wrote to Tolbini seeking production of a copy of the Grievor’s Occupational Health and Safety File and included an executed release authorizing disclosure of the Grievor’s personal health information to the Union. A copy of the correspondence and release is attached at Tab 9. 15. In or around February 2019, the Union received the Grievor’s Occupational Health and Safety file in preparation for arbitration of the Grievances referred to arbitration before Arbitrator Stephens. 16. In or around February 2019, Tolbini confirmed by email to Chandeskara that the Grievant’s occupational health and safety file was sent both to the union and to Zabrovsky. A copy of the correspondence is attached at Tab 10. The email chain shows that on February 11, 2019, Ms. Chandeskara sent an email to Ms. Tolbini, asking her to confirm whether she provided a copy of the occupational health file to Mr. Zabrovsky, as well as Amy Hope, Sarah Kitchen and Kristen Payne. The following day, Ms. Tolbini responded: Good morning. Yes, OSMH legal has a copy of the file. I understand that the file was sent electronically to you yesterday. Amy Hope and Sarah Kitchen have not requested a copy and it is not our practice to release OH files to HR. Kirsten is the Occ Health admin. She is the one who sent the electronic file to you and to OSMH legal. 18. The Union filed Grievance 2019-0383-0002 Dated March 4, 2019 alleging: “I grieve specifically, but not exclusively, Article 4 – Management Rights of our Collective Agreement, violation of PHIPA, the Occupational Health and Safety Act and failure by the Employer to follow their own Privacy Policies furthermore breaching my confidentiality by releasing my entire medical file to the Hospital Lawyer without my consent to do so, but also providing in excess of what would have been deemed absolutely necessary, including any other applicable Articles, Labour Laws, Statutes or Legislation that may apply.” A copy of this grievance is attached as Tab 11. 19. The Hospital denies that it has breached the collective agreement or any applicable law. Relevant Collective Agreement Provisions, Policies and Statutes 1. Collective Agreement ARTICLE 4 – MANAGEMENT RIGHTS 4.01. The right to manage and conduct the business of the Hospital resides with the Hospital and its administration except to the extent specifically modified by the provision of this Agreement. 2. Policies POLICY AND PROCEDURE – Occupational Health and Safety Subject: Confidentiality of Employee Health Information Policy PURPOSE: To establish guidelines for the collection, retention, storage, security access, disclosure, transmittal, reproduction and destruction of identifiable employee health information held by the Occupational Health Department of OSMH. POLICY: 1. All employee health information gathered by, communicated to/provided to/ received by Occupational Health by means of verbal, written, fax or e-mail communication, medical reports or test results is confidential. 1.1.All information is maintained in a confidential Occupational Health Employee Health File for each employee, as required through Occupational Health standards of practice and confidentiality guidelines. 1.2.Employee Health Files are kept separate from the Employee Record to ensure that health and medical information is under the protection of an Occupational Health professional who, through his/her respective Professional Standards of Practice, is required to maintain the confidentiality of such information. 2. All members of Occupational Health sign a specific Occupational Health Pledge of Confidentiality. 3. Employees are required to sign a Consent for Authorization to RELEASE/OBTAIN Employee Information (Appendix A), for access to and/or release of employee health information from the Employee Occupational Health File. A member of Occupational Health is to meet with the employee, review relevant information with the employee and obtain the employee’s written consent prior to: 3.1.Releasing confidential employee health information or records; 3.2.Requesting employee health information or records from an outside agency. Exception: Circumstances which may dictate the disclosure of information without the employee’s consent include: 3.3 when authorized by established law to disclose (statutory requirements to disclose); 3.4 when a judge/equivalent legal authority directs disclosure of information; 3.5 when public interest or safety overrides the duty of confidentiality because of clear danger to the employee, fellow employees or the public. … SCOPE: This policy is applicable to all employees, students and volunteers who work in the Occupational Health Department. … DEFINITIONS Access: The right and opportunity to examine, know, copy and transmit the information contained in the Employee Health File. It is limited to the Occupational Health Department staff who has a specific need for access. Ownership: This means that the Employee Health Files compiled by members of Occupational Health for OSMH are the property of OSMH. Property ownership does not give right of access. Content ownership belongs to the employee. PROCEDURE: 1. Documentation The Occupational Health Professional documents health assessment and interventions including, but not limited to: illness assessment, injury, immunization, lab tests, blood pressure readings, health related discussions, Employee Assistance program (EAP) referrals and medication administration. 2. Accessing Employee Health Information 2.1.A member of Occupational Health obtains an employee’s written consent prior to: 2.1.1. Releasing employee health information … … 3. Statutes Personal Health Information Protection Act, 2004, S.O. 2004 Ch. 3, Schedule A. Part 1 – Interpretation and Application Purposes 1. The purposes of this Act are, (a) To establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care; … Definitions 2. In this Act, … “disclose”, in relation to personal health information in the custody or under the control of a health information custodian or a person, means to make the information available or to release it to another health information custodian or to another person,… … “health care” means any observation, examination, assessment, care, service or procedure that is done for a health-related purpose and that, (a) Is carried out or provided to diagnose, treat or maintain an individual’s physical or mental condition, (b) Is carried out or provided to prevent disease or injury or to promote health, or (c) Is carried out or provided as part of palliative care, … … “health information custodian” has the meaning set out in section 3. … “personal health information” has the meaning set out in section 4. … “proceeding” includes a proceeding held in, before…an arbitrator or a mediator. … Health information custodian 3(1) In this Act, “health information custodian”, subject to subsections (3) to (11), means a person or organization described in one of the following paragraphs, who has custody or control of personal health information … … 1. …. 2. … 3. … 4. A person who operates one of the following facilities, programs or services: i. A hospital within the meaning of the Public Hospitals Act, … … Personal health information 4(1). In this Act, “personal health information”, subject to subsections (3) and (4), means identifying information about an individual in oral or recorded form, if the information, (a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family, (b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual. (c) is a plan of service within the meaning of the Home Care and Community Services Act, 1994, for the individual. … Mixed records (3). Personal health information includes identifying information that is not personal health information described in subsection (1) but that is contained in a record that contains personal health information described in that subsection, Exception (4). 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 (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. … Occupational Health and Safety Act, R.S.O. 1990, Ch. 0.1 … Information confidential 63 (1). Except for the purposes of this Act and the regulations or as required by law… (f). no person shall disclose any information obtained in any medical examination, test, or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case. Employer access to health records (2). 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. … Medical Emergencies (5). Subsection 1 does not apply so as to prevent any person from providing any information in the possession of the person, including confidential business information, in a medical emergency for the purpose of diagnosis or treatment. Conflict (6) This section prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. Positions of the Parties Union 3. The Union submits that the Employer violated the collective agreement, PHIPA, OHSA and its own policies when it sent a copy of the Grievor’s occupational health file to its outside counsel, without obtaining the Grievor’s consent or an arbitral order. 4. The Union argues that an employee’s occupational health file contains “personal health information” under PHIPA which cannot be disclosed without the employee’s consent or an arbitral order. It relies on Re London Health Sciences Centre and Ontario Nurses’ Association (Employee Medical Information), 2016 CarswellOnt 20744, 274 L.A.C. (4th) 167 (Slotnick), for that proposition, and the decision in Re Hooper v. College of Nurses Ontario, 81 O.R. (3d) 296 (On Div. Ct.), relied on in that case. It also cites to Re North Bay General Hospital and OPSEU, 2006 CarswellOnt 8751, 154 L.A.C. (4th) 425 (Randall), and Re Society of Energy Professionals and Ontario Power Generation, 2009 CarswellOnt 5637 (Etherington). 5. In this case, it is agreed that there was no consent, or even an attempt to obtain consent, and no order for production from Arbitrator Stephens. The Union asserts that the information contained in the file was of the utmost sensitivity and was provided to Occupational Health in confidence, with the expectation that it would remain confidential. It also asserts that the information in the file went well beyond the issues raised in the grievance, and included medical documents from the start of her employment in 1994. 6. The Union argues that arbitrators have long recognized the confidentiality of medical information and employees’ rights to limit the disclosure of such information, citing Re Hamilton Health Sciences and Ontario Nurses’ Association, 2007 CarswellOnt 9197, 167 L.A.C. (4th) 122 (Surdykowski); Re Labourer’s International Union of North America, Local 607 and Aecon Mining Inc., 2016 CarswellOnt 2292, [2016] O.L.R.B. Rep 23 (McLean). 7. It submits that the proper procedure for obtaining access to occupational health files was set out in Re Sunnybrook Health Sciences Centre and Ontario Nurses’ Association, 2006 CarswellOnt 9538 (Davie), and should have been followed in this case. It submits that an arbitrator can balance the privacy interests of the Grievor with the litigation needs of the Employer, and require limitations on the disclosure. The Union contends that the mere filing of a grievance about an alleged failure to accommodate does not permit an employer access to an employee’s health records without their consent, or an arbitrator’s order. It cites to Re The Ottawa Hospital and C.U.P.E., Local 4000, 2011 CarswellOnt 12121 (Slotnick). 8. The Union does not accept the Employer’s interpretation of Section 62(2) of OHSA as being limited to third-party providers of medical information. In its view, OHSA expressly prohibits the Employer from disclosing the Grievor’s occupational health file without her written consent. To the extent of any conflict, the Union asserts that OHSA prevails. Employer 9. The Employer submits that the prohibition contained in Section 62(5) of OHSA – which states that “[n]o employer shall seek to gain access … to a health record concerning a worker without the worker’s written consent” is meant to preclude the Employer from seeking medical documents about the worker from a third-party – that employee’s doctor, clinic, or treatment provider, which is not the case here. In its view, it did not seek to “gain access” here. It submits that the broad arbitral pronouncements concerning Section 62(5) of OHSA were made without careful analysis of the actual words used in the statute. It also asserts that a broad interpretation would prohibit an employer from releasing medical information during an emergency. The issue here, it asserts, did not involve the Employer seeking to “gain access”; instead, it was the disclosure of the information, which it asserts it was permitted to do under PHIPA. 10. Although it acknowledges that the Hospital is a “health information custodian”, it contends that the employee’s occupational health file is not “personal health information” under Section 4(4) of the Act, as the file falls within the exception contained in that provision. In its view, the occupational health file is “primarily” an employment-related file – with the information used for sick leave administration, accommodation and return to work matters – all of which are employment-related issues. It acknowledges that an occupational health file might be used for some health-related purposes, but asserts that its “primary” purpose is employment-related. Hence, it submits, that the file is not “personal health information.” In this regard, it cites to Decision 15 of the IPC, 2015 CanLII 54751 (ON IPC), in which the Privacy Commissioner disagrees with Hooper and finds it to be obiter, and adopts a more narrow view of “health care”. The Employer also relies on Order PO-3272 (Sunnybrook Health Sciences Centre), 2013 CanLII 70440 (ON IPC) and Re OPSEU and Treasury Board Secretariate, GSB No 2014-3708, 2018 CanLII 55851 (ON GSB). In its view, Occupational Health does not provide “health care” within the meaning of PHIPA, and therefore it was not precluded from disclosing the file. 11. The Employer submits that because the disclosure did not violate either OHSA or PHIPA, management’s action in releasing the file was not unreasonable under Article 4 of the collective agreement. It also notes that personal health information may be disclosed where the Hospital is a party or a witness in litigation, which is the case here. It submits that the file was disclosed only to Employer counsel. It also denies that the scope of the disclosure exceeded the issues involved in the litigation, submitting that the absence of migraines in the past is arguably relevant to her claim of migraines in 2017. Reasons for Decision 12. The issue here is whether the Employer violated the collective agreement, PHIPA and OHSA by sending a copy of the Grievor’s entire occupational health file to outside counsel in preparation for arbitration, without the Grievor’s consent and without an arbitral order. For all of the reasons that follow, I am persuaded that the answer is “yes”, on all counts. 13. My analysis starts with the basic premise, enshrined in both arbitral decisions and statute, that personal medical information is confidential. As stated by Arbitrator Surdykowski in Re Hamilton Health Sciences and ONA, supra at par. 20: Both subjectively and objectively, personal medical information is confidential personal information. The confidentiality of the doctor/patient relationship and personal medical information is universally and legislatively recognized as one of the most significant privacy rights in modern Canadian society. … Although the right to privacy is not a right listed in the Canadian Charter of Rights and Freedoms or the Human Rights Code, there is privacy protection legislation that addresses and reflects the prevailing society notions of privacy rights with respect to personal health information. This legislation ‘occupies the field’ and overtakes any common law notion of a right to privacy. The Personal Health Information Protection Act, 2004 (“PHIPA”…) is a comprehensive piece of health care privacy legislation. The Occupational Health and Safety Act (the “OHSA”) contains a medical information privacy provision which prevails over PHIPA (section 63(6)… 14. That is the starting point, and informs, as it must, any analysis of both PHIPA and OHSA. 15. In this case, it is undisputed that the Hospital is a “health information custodian” under PHIPA– both as to patients and its employees. PHIPA does not distinguish between its dual roles. It is also not disputed, and it is clear from even a brief review, that the Grievor’s occupational health file contains “identifying information” that “relates to the physical or mental health of the individual” and “to the providing of health care to the individual”, from 1994 when she began her employment until 2019, when it was disclosed to counsel. It is also undisputed that some of the records in the file are “mixed records” which are also covered by PHIPA. 16. The Employer argues, however, that occupational health records fall within the “exception” under Subsection 4. That provision states (emphasis added): Exception (4). Personal health information does not include identifying information contained in a record that is in the custody or the control of a health information custodian if, (a) the identifying information contained in the record relates primarily to one of more employees or other agents of the custodian; and (b) the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employee or other agents. 17. The Employer submits that the occupational health record is maintained primarily for employment-related purposes – sick leave benefit administration, accommodation and return to work issues. Consequently, it asserts that it should not be considered “personal health information” protected by PHIPA, and it was free to disclose it to counsel. 18. The same argument was raised in Re Hooper v. College of Nurses of Ontario, 81 O.R. (3d) 296 (Div. Ct., 2006), in a unanimous decision written by Justice Swinton. In that case, after the Hospital terminated Ms. Hooper’s employment, it was required to and did report incidents of professional misconduct to the College of Nurses which began an investigation. The investigator requested and obtained parts of the nurse’s file from the Hospital’s Occupational Health and Safety Department, without the nurse’s consent. 19. The College took the position that the documents were not “personal health information” under PHIPA and therefore, there was no statutory restriction on the release of the information. It asserted that the Occupational Health department did not provide any medical treatment to the individual, and that the OHS file was predominantly an employment file. 20. Justice Swinton reviewed the documents that had been disclosed, and stated, at pars. 25- 28: I am of the view that the documents are personal health information within s. 4 of PHIPA. A review of the documents shows that the file was not primarily an employment file. It was maintained by the OHS Department, not a human resources department, and a number of the documents were created for a health-related purpose. More precisely, the documents deal with the applicant’s mental health status and capacity to return to work. While they include discussion of her behaviour, among the documents is a report from her personal physician provided to the OHS Department after she had signed a release. There are also assessments of her condition by the OHS physician, as well as observations about her health and behaviour made by other members of the Department and references to her medication. Although [the Hospital] stated that the Department provided no medical treatment, in my view, it was providing “health care” within the meaning of s. 2 of PHIPA: it was making observations and assessments for a health-related purpose in order to evaluate her physical and mental condition and to determine if and how she could return to work safely. Indeed, in [the Hospital’s] words, The OHS Department was required to determine whether Ms. Hooper had a medical condition that impacted on her fitness to carry out her duties as a nurse and to clear her for a safe return to work when appropriate, and, if necessary, on certain limitations. Such an assessment of fitness to work safely is an assessment for a health-related purpose and, in the words of s.2, is carried out to “maintain an individual’s physical or mental condition.” 21. Justice Swinton concluded, at par. 29: “Therefore, given the information contained in the OHS documents, I conclude that they were personal health information within s. 4 of PHIPA.” 22. This decision was relied on by Arbitrator Slotnick in Re London Health Sciences Centre and Ontario Nurses’ Association, supra. Again, the argument was made by the Hospital that although it was a “health information custodian” and the information in the occupational health files would fit the definition of “personal health information”, such documents fell within the exception in Section 4(4) of the Act. It argued, at par. 25, “that the entire purpose of the occupational health department is to bring the hospital, as an employer, into compliance with its obligations under the Human Rights Code, Occupational Health and Safety Act, Workplace Safety and Insurance Act, and its collective agreements.” It was “dealing with employment-related issues, such as the provision of sick benefits or the accommodation of employees returning to work after an absence…” 23. Arbitrator Slotnick, at par. 30, stated that although he “appreciate[d] the employer’s argument that its occupational health files are not kept “primarily” to diagnose, treat or maintain the employee’s health”, he relied on Re Hooper because “[t]he court addresses exactly the issue that was raised in this hearing, and considered whether the exception in Section 4(4) applied to occupational health files of exactly the sort in evidence here. The court concluded that the exception did not apply.” He also determined, at par. 32, that he was “bound by a court decision squarely on point on a question of statutory interpretation.” 24. The Employer cites to Decision 15 of the Privacy Information Commission, supra, which questioned Re Hooper, and determined that its conclusion about Section 4(4) was obiter and therefore did not have to be followed. The Adjudicator recognized, at par. 31, that the Court determined that the information in the occupational health file was personal health information, but stated: 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. 25. With respect, I do not agree. Had Justice Swinton accepted the College’s argument concerning Section 4(4), PHIPA would not have applied at all to the disclosure of the occupational health file because it would not be considered “personal health information” under the Act. There would have been no basis to consider whether the release of the documents to the College of Nurses under Section 43(1)(b) and Section 9(2)(e)1 was appropriate. It was only because the Court determined that the documents were “personal health information” protected under PHIPA, that the second issue arose. The Court did not decide the issue “in the alternative.” The Court stated at par. 30, right after determining that the documents were “personal health information” under Section 4 of PHIPA, that “[n]evertheless, PHIPA permitted the Hospital to release them to the College under s.43(1)(b) and s. 9(e).” (emphasis added). Consequently, the Court’s determination under Section 4(4) was pivotal; it was not obiter. 26. 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. 27. In my view, there is no valid basis to distinguish it, and, moreover, the decision in Hooper was the right decision. Justice Swinton considered the definition of “health care” under PHIPA in the context of the role of occupational health. It is defined as follows: 1 Section 9(2)(e) states: “Nothing in this Act shall be construed to interfere with, … (e) the regulatory activities of a College under the Regulated Health Professions Act, 1991, the College under the Social Work and Social Service Work Act, 1998 or the Board under the Drugless Practitioners Act; ….” Section 43(1)(b) provides: “A health information custodian may disclose personal health information about an individual…(b) to a College within the meaning of the Regulated Health Professions Act, 1991, for the purpose of the administration or enforcement of the Drug and Pharmacies Regulation Act, the Regulated Health Professional Act, 1991 or an Act named in Schedule 1 to that Act;” “health care” means any observation, examination, assessment, care, service or procedure that is done for a health-related purpose and that, (a) is carried out or provided to diagnose, treat or maintain an individual’s physical or mental condition, (b) is carried out or provided to prevent disease or injury or to promote health… 28. As Justice Swinton found, Occupational Health reviews employee medical information for a “health-related” purpose – not to diagnose or treat the individual, but to “maintain an individual’s physical or mental condition” or to “prevent… injury or to promote health.” The role of Occupational Health, in the accommodation process and return to work process, is to ensure that the employee can do the essential tasks of the job, with or without accommodation, yet maintain their physical or mental health without risking further injury or harm. It is a combined employment and health-related role; not “primarily” an employment- related role. Occupational Health nurses and doctors are under professional responsibilities that go beyond the employer’s interests, and include the health and safety of the employee. 29. The exception under Section 4(b), moreover, states that the record is exempt if “it is maintained primarily for a purpose other than the provision of health care or assistance in the provision of health care to employees or other agents.” Consequently, even if one were to disagree that the role of Occupational Health includes the “provision of health care”, it would certainly fall under the category of providing “assistance in the provision of health care to employees.” For this reason as well, Occupational Health records do not fall within the exception of Section 4 of PHIPA. 30. The decision in Re North Bay General Hospital, supra, supports this view of Occupational Health. In that case, during a flu outbreak, the Hospital’s Occupational Health administrator disclosed the grievor’s vaccination information to management, and then again during management’s investigation, without the grievor’s consent. The arbitrator stated, at par. 73-74: 73. Occupational Health nurses are health professionals, who have privileged access to personal health information. Though employed by the Employer, when they give care to an employee and/or are in receipt of personal health information respecting an employee, they are duty-bound not to disclose that information to the Employer or its representatives, absent written consent (or a Court or tribunal order or other statutory duty). …. 74. OHS nurses, as employees of the Employer, have to be particularly careful in this regard because the guarantee of confidentiality is fundamental to a successful occupational health service. As the Ministry’s “Health and Safety Guidelines respecting ‘Confidentiality of Worker Health Records’ notes: ‘without this trust, frank and honest communication between a worker and the heath professional will not take place and the assessment and care of employees will be compromised.’ 31. This view of Occupational Health is also supported by Re Society of Energy Professionals, supra at par. 116, which relies on Re Hooper, supra, to conclude that “OPG Health Services health care practitioners who are collecting personal health information in order to assess [employees’] physical and mental condition for the purpose of administering sick leave benefits are in a similar position and meet the definition of health information custodian under s. 3.1 of PHIPA.” 32. The Employer’s policy on the confidentiality of medical records contained in the Occupational Health file underscores this. Under the policy, “[a]ll employee health information gathered by, communicated to/provided to/received by Occupational Health by means of verbal, written, fax or e-mail communication, medical reports or test results is confidential”, and “kept separate from the Employee Record to ensure that health and medical information is under the protection of an Occupational Health professional who, through his/her respective Professional Standards of Practice, is required to maintain the confidentiality of such information.” Under the policy, “[a]ll members of Occupational Health sign a specific Occupational Health Pledge of Confidentiality.” This policy is clear – the medical information provided to Occupational Health is submitted in confidence and is to be treated as confidential. The policy also states that “[a] member of Occupational Health obtains an employee’s written consent prior to: [r]eleasing employee health information…” 33. Arbitrator Surdykowski stated in Re Hamilton Health Sciences, supra at par. 21: There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. … 34. If accepted, the Employer’s argument that the medical records in occupational health files are “primarily” employment-related would negate all protection for employee health information because PHIPA would not apply. The exception would completely swallow the rule. The Employer could, as it did here, send an employee’s entire occupational health file to its counsel, or an outside consultant, or anyone else. That interpretation would fundamentally negate the very protection that PHIPA is designed to protect. As an “exception”, it should be narrowly, not expansively, interpreted. 35. The Adjudicator in Decision 15, supra, was concerned that a broad interpretation of “health-care” could expand the use of “assumed implied consent” under Section 20(2) of PHIPA. That may be a valid concern in other contexts, but I do not see it being applicable to employee health files maintained by Occupational Health. In my view, the role that Occupational Health plays in regard to employee health and safety falls within the literal wording relating to “health-care” in Section 4 of PHIPA. 36. I also find IPC Order PO-3272, supra, to be distinguishable. In that case, in dispute were eight pages from the employee’s Occupational Health file, which dealt with an incident and investigation of a harassment complaint. The adjudicator determined at par. 8, that the document was “created for the primary purpose of addressing the affected party’s concerns about the harassment she was suffering at the hands of the appellant and not for the provision of health care…” Why such a document was maintained in the Occupational Health file, rather than a human resources file, was not explained. It may be, therefore, that some documents contained within an Occupational Health file may not be “health-care” related, but that argument has no relevance here. The Grievor’s entire occupational health file was disclosed, including clearly personal health information. 37. Finally, I find Re OPSEU and Treasury Board Secretariate, supra, to be distinguishable. The Union there challenged the definition of “health care” contained in the Employer’s health information policy, which it asserted was more narrow than that provided under PHIPA and therefore could lead to inappropriate and unnecessary disclosure of health information. The Board assumed without deciding that PHIPA applied and determined, at par. 21, that it was “necessary to examine the facts to determine whether the ‘primary purpose” for which the Employer collects health information relates to the provision of health care to its employees.” On the facts there, the Board held at par. 27, that there was “no evidence that the employer in the instant matter provides any health care to its employees even in the broader sense.” For the reasons set out above, I find that the role of Occupational Health in regard to accommodation, return to work and other areas, does constitute the provision of health care, or assistance in the provision of health care within the meaning of PHIPA. 38. The determination in this decision is not to suggest that an employer, when facing a grievance concerning accommodation, where the information contained in the occupational health file is arguably relevant, is not entitled to that information in order to advise its client and prepare its defense. It is entitled to it, and there are many arbitral cases which have ordered the production of the grievor’s occupational health file. That is the irony of this case. The Grievor’s occupational health file (or at least the relevant portions of it) would have been provided to Employer counsel, either with the Grievor’s consent or by arbitral order. What the Hospital was precluded from doing, however, was to disclose the file to counsel without the Grievor’s consent or an arbitral order. 39. In regard to the Employer’s OHSA arguments, I am not persuaded by the Employer’s contention that Section 62 only prohibits the Employer from seeking to “gain access” to a health record from a third-party concerning a worker without the worker’s written consent. That provision states: Employer access to health records (2). 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. 40. It also states in subsection (6), that “[t]his section prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004.” 41. Without question, OHSA prohibits an employer from obtaining – gaining access to - a health record from a third-party without the employee’s written consent. But it is not limited to third-parties. That limitation does not appear in the provision. By its terms, an employer may not seek to “gain access” to an employee’s health record without the employee’s written consent. When the purpose of the statute and this particular provision is considered, it should be read broadly to include internal access. Indeed, the Hospital’s own policy defines “access” to mean: “the right and opportunity to examine, know, copy and transmit the information contained in the Employee Health File. It is limited to the Occupational Health department staff who has a specific need for access.” I find that Section 62 (2) precludes the Employer, including its agents such as counsel, from gaining access to those records, in the absence of the employee’s written consent or an arbitral order. 42. The Employer’s argument that a broad reading of Section 62 would preclude the disclosure of medical information in an emergency is answered by Section 62(5). That provision appears to allow the disclosure of medical information in an emergency medical situation. 43. In light of PHIPA and OHSA, and the Employer’s own policy on the “Confidentiality of Employee Health Information”, the Employer’s release of the Grievor’s occupational health file to counsel, without obtaining her consent or without an arbitral order was unreasonable. Conclusion: 44. For all the reasons set out above, the grievance is allowed. The disclosure of the Grievor’s occupational health record to outside counsel, without obtaining the Grievor’s consent or an arbitral order, violated PHIPA, OHSA and the Employer’s own policy on the “Confidentiality of Employee Health Information” and was therefore unreasonable and a violation of Article 4 of the collective agreement. 45. The parties agreed to bifurcate the issue of remedy, and I remit that matter back to the parties. I shall remain seized. Issued this 25th day of November, 2020. Randi H. Abramsky ___________________________ Randi H. Abramsky, Arbitrator