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Document
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MO-1342
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Institution/HIC
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City of Toronto
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Summary
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NATURE OF THE APPEAL: The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to a copy of the requester's Employee Health Services file from June 1, 1997 to the date of the request. The City denied access to all responsive records, claiming that they fell outside the jurisdiction of the, pursuant to section 52(3). The requester, now the appellant, appealed the City's decision. The City advised the appellant that, notwithstanding their position that the Act did not apply to the records, all records addressed to or prepared by her would be disclosed. Mediation of the appeal was not successful. I first sent a Notice of Inquiry to the City, and received representations. I then sent the Notice to the appellant, together with the non-confidential portion of the City's representations. The appellant also submitted representations. RECORDS: The records not otherwise provided to the appellant which remain at issue in this appeal, consist of visit forms, return to work schedules, doctor's notes, physiotherapy continuation forms, medical assessments and diagnoses, correspondence and memoranda. DISCUSSION: JURISDICTION Sections 52(3) and (4) read, in part, as follows: (3) Subject to subsection (4), 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: 1. 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. ... 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (4) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. 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. 3. 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. 4. 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 52(3) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act . Section 52(3)3 In order for a record to fall under the scope of paragraph 3 of section 52(3), the City must establish that: the records were collected, prepared, maintained or used by the City or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the City has an interest. [Order P-1242] Requirements 1 and 2 The City provided a detailed outline of the appellant's employment with the City, which began in 1985. The principal focus of this outline is the appellant's medical/injury, attendance and Workers' Compensation Board (WCB) (now Workers' Safety and Insurance Board (WSIB)) history. The City identifies a number of injuries and WCB claims made by the appellant throughout the employment period. The City also summarizes the actions taken as a result of an injury sustained by the appellant in 1997, and reviews the records in relation to that injury. This injury is the subject of a WSIB claim. The City submits that the records were all collected, prepared, maintained or used by the City's Occupational Health, Safety and Rehabilitation Services department and the City's consulting physiotherapist and other staff, with respect to the employee's medical condition, WCB/WSIB claims and appropriate workplace accommodation. The City also states: City staff held a number of meetings and discussions to discuss the employee's injuries and recurrences, and special schedules. The medical assessments and evaluations, physiotherapy continuation sheets, return to work information forms etc. were prepared and used by the City for these meetings and discussions. Letters and memoranda were exchanged between staff and the WCB/WSIB. I am satisfied that there have been on-going issues between the appellant and the City for a number of years which relate to injuries and WCB/WSIB claims, and that the requested records were collected, prepared, maintained and used in relation to meetings, consultations, discussions and communications about the appellant in this context. Therefore, I find that the first two requirements of section 52(3)3 have been met. Requirement 3 Section 52(3)3, requires that the meetings, consultations, discussions or communications must be "about labour relations or employment-related matters". The City submits: It is clear that medical assessments and evaluations of the employee's injuries and her subsequent ability to perform her duties are employment-related matters. Similarly, the City's efforts to find suitable accommodation and correspondence in this regard, as well as discussions relating to modified work schedules are also employment-related matters. (Please see Order MO-1267). Matters before the WSIB also relate to the employment of an individual. The appellant, through her representative, states:
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Legislation
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Subject Index
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Published
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Sep 26, 2000
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Type
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Order
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