Since 2024, the legislature has tightened the rules regarding access to the medical files of workers suffering from an employment injury, notably by amending section 38 of the Act respecting industrial accidents and occupational diseases (the “Act”), which sets out the rules governing access to the medical record held by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”), and by introducing a specific fine for breaches of that provision. Accordingly, a health professional designated by the employer must receive a copy of the medical file sent by the CNESST and provide the employer with a summary. But what happens where the employer uses a means other than section 38 of the Act to obtain a medical file?
In a recent ruling [1], lthe Administrative Labour Tribunal (the « TAT ») was required to rule on a preliminary motion seeking to have two expert reports produced by an employer declared inadmissible. These reports were filed in the context of a dispute concerning a claim refused by the CNESST and contested by the worker. The TAT concluded that the reports were admissible, while nonetheless strongly criticizing the employer’s conduct.
The facts
In this case, a few days after receiving a medical certificate indicating an alleged employment injury, the employer asked the worker to sign an access request form authorizing her treating physician to transmit her complete medical file to the employer’s medical advisor, covering a period of approximately six months prior to the medical certificate. The worker signed the access authorization, and the medical file was transmitted directly to the employer’s disability management team.
A violation to privacy
First, the worker argued that the employer had contravened section 38 of the Act by obtaining a copy of her medical file. The TAT dismissed this argument, recalling that section 38 applies only where the employer directly requests from the CNESST a copy of the medical documents it holds in a claim file for an employment injury. In the present case, however, the employer had instead obtained the worker’s consent to obtain a complete copy of her medical file directly from her treating physician. As a result, the employer’s acquisition of the medical file fell outside the scope of section 38 of the Act.
The worker then turned to the Charter of human rights and freedoms (the « Charter»), alleging a breach of her right to professional secrecy and an infringement of her right to privacy.
The decision
The TAT determined that the worker’s consent to the transmission of her medical file was free and informed. Accordingly, the hospital centre that transmitted the medical file to the employer acted legitimately, given that the worker had expressly waived professional secrecy.
However, the TAT concluded that there had been an infringement of the worker’s right to privacy, in violation of the Charter and the Civil Code of Québec. Indeed, she had not consented to the transmission of medical documents to her employer, but rather to the physician designated by the employer.
The TAT also noted that no legislation authorizes an employer to obtain the medical information it received in this manner.
The TAT continued its analysis by determining that, in this specific case, the infringement of privacy was not justified.
First, it concluded that the employer had no legitimate interest in requesting the complete medical file, which necessarily contained information relating to medical conditions entirely unrelated to the one that was the subject of the employment injury claim. As such, the complete medical file was not relevant to enable the employer to respond to the worker’s appeal.
Moreover, the TAT stated that the worker’s consent was, in a way, flawed, since she had authorized transmission directly to the employer’s medical advisor and not to its disability management team.
The TAT then suggested other, less intrusive means the employer could have used to obtain medical information relevant to the dispute: upon receipt of the complete medical file, the employer should have forwarded it directly to its medical advisor, without placing it in the disability management file. The employer could then have asked its medical advisor to produce a summary of the file to identify the elements relevant to the dispute.
The TAT also noted that the employer could have asked the worker for an access authorization in its favor in order to directly obtain the medical information relevant to the dispute.
Finally, the TAT emphasized the possibility for the employer to obtain relevant medical documents through a subpoena.
The admissibility of reports as evidence
Despite this unjustified infringement of the worker’s right to privacy, the TAT admitted the two expert reports into evidence, finding that their admission did not bring the administration of justice into disrepute.
Although it characterized the violation as “serious” and “intentional,” the TAT noted that the information obtained had no relevance to the dispute before it. In this regard, it pointed out that the employer had not sought to file these documents as evidence and that the experts it retained did not rely on them in their reports.
Accordingly, the TAT concluded that the documents obtained in violation of the worker’s privacy had no impact on the fairness of the proceeding, as they were not relevant to the issue before the TAT , namely : was the worker the victim of an employment injury?
In this context, the TAT concluded that “justice would be further discredited by the inconvenience caused by excluding the two evaluations in a truth-seeking process, notwithstanding the infringement of a fundamental right without justification.” (our translation).
