Privacy, rights of workers with disabilities at issue in commercial dispute over alleged negligence

Addictions disabilities carry “pervasive stigma,” says staff lawyer with ARCH Disability Law

Privacy, rights of workers with disabilities at issue in commercial dispute over alleged negligence
Jessica De Marinis, Mariam Shanouda: ARCH Disability Law Centre

The Ontario Superior Court recently dismissed an appeal in which the plaintiff in a commercial dispute sought the disclosure of the employment records of a non-party, raising issues of privacy and the human rights of workers with disabilities.

Commercial Spring and Tool Company, an automotive parts manufacturer, brought an action against Barrie Welding, alleging the machine repair and maintenance business was negligent in work it had carried out on two of the plaintiff’s stamp presses. Commercial Spring also alleged one Barrie Welding employee involved in the work was “impaired by alcohol and had a history of alcoholism,” said the decision. The employee, who is a senior press technician and had been employed by the defendant for more than 30 years, was not a party to the action but Commercial Spring sought production of his personnel file.

The Case Management Master had dismissed the request, finding it a “profound intrusion on the employee’s privacy” and not in keeping with the proportionality requirements in the Rules of Civil Procedure. Commercial Spring appealed.

Barrie Welding’s position was that the dispute concerned whether the job was done improperly, not why it was allegedly done improperly.

Intervening on the appeal, the Ontario Network of Injured Workers’ Groups, submitted that the Master, while “not expressly” contemplating the human rights of the worker, made a finding which reflects the Human Rights Code’s requirement that workers with disabilities have a right to full and equal participation in the workplace. Workers with disabilities should not be targeted on the basis of their disability. By demanding production of his employee file, “without evidence of particular incident,” the employee in question was not being treated in an equal manner, said ONIWG.

The employee had gone on a “disability-related leave,” around the time the work was happening, says Jessica De Marinis, staff lawyer at ARCH Disability Law Centre, who acted for ONIWG. It was “particularly alarming and problematic” that the plaintiff used the existence of the disability to make “broad assumptions” that it must have been connected to the alleged error, she says.

“They are basing that assessment on stereotypical assumptions of employees with disabilities,” says De Marinis. "Particularly addictions disabilities, which carry with them such pervasive stigma. And so, that perspective was really important for us to advance in this case.”

In providing leave for the employee in question, Barrie Welding was, arguably, following a duty, under the Human Rights Code of Ontario, to accommodate their worker’s disability, says Mariam Shanouda, a staff lawyer at ARCH Disability Law Centre. The disclosure request implied the company was negligent for accommodating the disability, a proposition which would not make for good law, she says.

“So in a way, we almost saw this request and the way that the request was framed as weaponizing that duty to accommodate, which is very concerning,” says Shanouda.

Superior Court Justice Jana Steele found that the employee’s privacy would be breached if sensitive information related to his health were divulged in producing the personnel file. Justice Steele agreed with the Master that the circumstances did not justify such an invasion of privacy and found now error with the Master’s evaluation of proportionality. She dismissed the appeal.

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