For Immediate Release: Ontario Superior Court Dismisses Appeal Seeking Disclosure of Employment Records of Non-Party with a Disability

Toronto, April 13, 2021: The Ontario Superior Court of Justice recently released a decision that engaged with the privacy interests of workers with disabilities. In particular, in Commercial Spring and Tool Company v Barrie Welding, 2021 ONSC 2591, the Court found that privacy is a factor that the court may consider in assessing proportionality in the context of document disclosure in litigation.

The issue arose in the context of a commercial dispute between two companies. The plaintiff company alleged, among other claims, that the defendant company was negligent in the repair of a piece of machinery. As part of the claim, the plaintiff alleged that one of the defendant’s employees, who was known to have an addictions disability, was at least in part responsible for the negligence. Despite the employee not being a party to the litigation, the plaintiff company sought disclosure of that employee’s employment record, which may have included documentation about his disability.

The case raised important issues about the privacy interests and human rights of workers with disabilities, especially for those who are non-parties to the action. ARCH represented the lone intervenor, Ontario Network of Injured Workers (ONIWG), in the appeal providing the perspective of workers with disabilities, who are often subject to stigma and stereotyping and other invidious barriers in the workplace.

Quoting from ONIWG’s submissions, the Court stated “… workers with disabilities have the right to full participation in the workplace on an equal basis to others and should not be targeted on the basis of their disability. Being identified in litigation and targeted for the production of his employee file, on the basis of his disability and without evidence of particular incident, cannot be said to be equal basis.”

“This is an important decision for workers with disabilities, who share sensitive and personal health information with their employers to access accommodations at work,” said Janet Paterson, President at ONIWG. “For workers who have suffered permanent injuries at work, they go on to experience stigma at many levels and it is this stigma that makes them a target. All workers should be able to access accommodations in their workplaces in confidence and should not be unjustifiably targeted for disclosure requests should the employer be engaged in litigation.”

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Contacts:

Jessica De Marinis, Staff Lawyer
ARCH Disability Law Centre
Toll-free: 1-866-482-2724 ext. 2232
Email: jessica.demarinis@arch.clcj.ca

Mariam Shanouda, Staff Lawyer
ARCH Disability Law Centre
Toll-free: 1-866-482-2724 ext. 2224
Email: mariam.shanouda@arch.clcj.ca