Saturday, 23 March 2013

Privacy Rights and the WSIB

Can an employer of a worker receiving WSIB benefits obtain access to that worker's personal information and medical records?

In a case decided earlier this year by the Ontario Divisional Court, Lambton Kent District School Board v. Workplace Safety and Insurance Board, 2013 ONSC 839 (CanLII), the answer would appear to be not unless the worker consents.


The case concerned an application brought by a number of school boards for a court order that the Workplace Safety and Insurance Board ("WSIB") give them certain personal information about their injured workers after the WSIB refused to disclose information from individual workers’ claims files to them.

The motivation for the request was that the school boards had retained lawyers to pursue claims against Asbestos Compensation Trust Funds in the United States. Those trust funds were established to handle claims of victims of asbestos-related diseases by companies formerly involved in manufacturing and supplying materials containing asbestos. The boards’ lawyers were pursuing claims on behalf of the boards respecting payments to their former workers or survivors for asbestos-related injuries.

In order to pursue claims against the trusts, a proof of claim form must be filed. The form requires the claimant to disclose certain personal information relating to the person’s name, social security number, death certificate (if applicable), medical documentation that confirms the diagnosis of an asbestos-related disease, and work history showing employment that exposed the claimant to asbestos.

Despite the boards’ attempts to obtain the consent of workers or their estates to allow access to the workers’ medical and employment information, only one consent had been obtained. There had been no response to the other requests.

As a result, the boards sought the necessary information directly from the WSIB; requesting access to information in the injured workers' claim files. The WSIB refused to provide such access, suggesting that the appropriate way of proceeding was by a freedom of information request.

The Hamilton Wentworth Catholic School Board made such an access to information request. That request was denied by the WSIB's Freedom of Information Coordinator on the basis that the employee information sought was personal information. The disclosure of medical and employment history is presumed to constitute an unjustified invasion of the individual’s personal privacy under s. 21(3)(a) and (d) of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31. The HWCSCB appealed that decision to the Information and Privacy Commissioner, but the appeal was placed on hold pending the outcome of the decision contemplated in this post.

Legal Analysis and Reasons for Decision

As set out by the Honourable Justice Katherine Swinton, the legal issue that the court was asked to answer was “… whether the statutory right to subrogation conferred on Schedule 2 employers by subsection 30(11) of the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Schedule A (“the WSIA”) gives such employers the right to acquire medical and other information about claimants.”

Justice Swinton’s decision, with which the Honourable Justices Kent and Harvison Young agreed, was that section 30(11) does not confer such a right.

For the sake of context, "Schedule 2 employers" (such as the school boards) are those employers that are responsible for paying the costs of the benefits paid to their employees under the WSIA. Subsection 30(11) gives the legal right to such employers to collect their payments from someone else if one of their workers was injured by that third party but the worker elected to claim benefits under the WSIA. The actual wording of subsection 30(11) is as follows:
If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the worker or survivor in respect of the action.  The employer is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms.

In deciding that the wording of section 30(11) does not confer a right to information on employers Justice Swinton wrote:
[21] The words of s. 30(11) confer a right of subrogation to the rights of a worker in respect of an action.  There is nothing explicit in the words of the subsection conferring a right of access to information pertaining to that worker, nor is there a duty to cooperate by the worker.  Therefore, the plain wording of the provision does not assist the applicants.
[22] Moreover, when that provision is read within the context of the WSIA as a whole, it is evident that it is inappropriate to read in an employer right of access to information under that subsection.  It is significant that ss. 58 and 59 deal explicitly with an employer’s rights to obtain information about a worker held by the WSIB.  The employer can seek access pursuant to s. 58(1) only if there is an “issue in dispute” – that is, an issue regarding a worker’s entitlement to benefits.  The WSIB will then determine which documents are relevant.  Before giving access, the WSIB must, pursuant to s. 59(1), notify the worker and give him or her an opportunity to object.  An appeal lies to the Appeals Tribunal from a determination under these provisions.  As well, s. 59(6) imposes a duty of confidentiality on the employer and its representatives not to disclose any health information obtained “except in a form calculated to prevent the information from being identified with a particular worker or case.”
[23] Thus, the WSIA has dealt specifically with the employer’s right to worker information in ss. 58 and 59, including a notice requirements and safeguards for the worker’s privacy.   The right of access claimed by the applicants under s. 30(11) would not be subject to any notice requirement or protection for the privacy interests of the worker.

In the result the application was dismissed and the school boards were ordered to pay the WSIB costs.


Most of Justice Swinton’s legal analysis focuses on the rights of a subrogated party and what rights, if any, section 30(11) confers by virtue of the boards being a subrogated party. For those wishing that analysis I would encourage you to read the decision in full.

My sense is that given Justice Swinton’s analysis on that point of law and the amount of money likely in issue, this case will likely be appealed to the Court of Appeal for Ontario.

On the issue of access to personal information, it is heartening to read that the court will not confer an unfettered and unchecked right to personal information.While I appreciate the boards’ motivation for seeking this information, (they have paid a great deal of money for a problem they did not entirely create, and a pot of money to reimburse them has been established if only they could make a claim for it) that fact does not mean that the boards should automatically be furnished with personal information about its former workers without the law permitting such access. (According to Justice Swinton, Alberta does confer such rights to employers: see section 29 of the Alberta Workers’ Compensation Act.)


For workers receiving WSIB benefits the decision should provide some comfort in the fact that (a) the WSIB will not simply hand over personal information about that worker to the employer simply because the employer asks for it; and (b) the courts will not grant such rights either.

The takeaway for employers looking to advance such subrogated claims is that where such information is required it will be necessary to either: (a) obtain the cooperation and consent of the worker; (b) make a request pursuant to section 58 of the WSIA; or, maybe depending on what the Information and Privacy Commissioner has to say, (c) make a an access to information request.

As mentioned however, somehow I suspect this is not the final chapter in this story and further appeals are yet to come.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.

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