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Document
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MO-1426
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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 appellant had been a long-term municipal employee, first with the former City of Etobicoke and then with the City of Toronto (the City). He was dismissed from employment in January 2000 for unauthorized absence from work, apparently connected to a specific medical problem. He submitted a request to the City under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for all records pertaining to his employment with the City of Etobicoke and the City, while he reported to named individuals. The request included his Employee Health and Employee Assistance Program (EAP) records. The City denied access to the responsive records in their entirety on the basis that they fell outside the scope of the Act pursuant to sections 52(3)1 and 52(3)3 of the Act . The appellant appealed the City's decision. In his letter of appeal, the appellant indicates that he was dismissed from employment without severance and has requested the records to assist in a hearing relating to unemployment insurance benefits. This office sent a Notice of Inquiry to the City, initially. The City submitted representations in response and the non-confidential portions of them were then sent to the appellant along with the Notice of Inquiry. The appellant also submitted representations. The City indicates in its submissions that during the preparation of the submissions, additional records were located. The City attached the records to its submissions and states that they also fall outside the scope of the Act pursuant to section 52(3). These records are included in the description of records below. RECORDS: The records at issue in this appeal include correspondence, memoranda, notes/chronology in the Employee Assistance file, e-mails, performance evaluations, Multi-Focus Reviews, Application for Employment, Employment and Salary Verifications, Requests for Leave, a Letter of Understanding and other employment and health-related documentation. DISCUSSION: APPLICATION OF THE ACT If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, section 52(3) has the effect of excluding the records from the scope of the Act. Section 52(3) is record-specific and fact-specific. The test is whether the section applies to a specific record in the circumstances of a particular appeal. If the section does apply to a record and none of the exceptions listed in section 52(4) is present, then the section 4(1) right of access does not apply to that record. In this case, it was not submitted that section 52(4) is relevant and I am satisfied that it does not apply. The City has relied on paragraphs 1 and 3 of section 52(3) in denying the appellant access to the records. These sections provide: 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. Section 52(3)3 To qualify under 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. Requirements 1 and 2 The City submits that it collected, prepared, maintained or used the records at issue in relation to meetings, consultations, discussions or communications about the appellant, specifically about the medical problems affecting his attendance and his ability to perform his duties, the events leading to his eventual termination and the efforts of the City to obtain treatment for him both before and after his termination. The appellant argues on the other hand that the requested records are those collected prior to his dismissal as part of the City's normal practice of maintaining a Personnel File. The records fall into two categories: those which would have been routinely created as part of the normal employment practices of the City, such as the appellant's application for employment and the various performance appraisals that were conducted over the term of his employment; and those that were created by various staff relating to issues arising in connection with the appellant's medical problems, such as the notes made by the EAP counsellor and e-mails pertaining to the appellant's attendance at work and participation in treatment programs. The second category of records was clearly prepared and used in relation to meetings, consultations, discussions and communications about the appellant and the difficulties he was experiencing in the workplace arising from his medical problems. The first category of records relates to the appellant's ability to perform in the workplace and assessment levels of that performance. It is reasonable to expect that these types of records would be used by an institution in considering and assessing an employee's performance once problems arise. I am satisfied that the first category of records was collected, prepared, maintained or used by the City in relation to these meetings, discussions, consultations and communications about the appellant and his continued employment with the City. Accordingly, I find that the first two requirements have been met. Requirement 3 Section 52(3)3 requires that the meetings, consultations, discussions or communications must be "about labour relations or employment-r
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Legislation
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Subject Index
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Published
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Apr 27, 2001
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Type
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Order
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