Lambton Kent District School Board v. Workplace Safety and Insurance Board, 2013 ONSC 839

CITATION: Lambton Kent District School Board v. Workplace Safety and Insurance Board, 2013 ONSC 839 DIVISIONAL COURT FILE NO.: 209/12 DATE: 20130226 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT kent, swinton and harvison young jj. B E T W E E N: ) ) LAMBTON KENT DISTRICT SCHOOL BOARD, HAMILTON WENTWORTH CATHOLIC SCHOOL BOARD, GREATER ESSEX DISTRICT SCHOOL BOARD, TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD AND DISTRICT SCHOOL BOARD OF ONTARIO NORTH EAST Applicants - and - WORKPLACE SAFETY AND INSURANCE BOARD Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) ) ))) Alexandra V.

Mayeski , for the Applicants Eric Kupka , for the Respondent ) )) HEARD AT TORONTO: January 31, 2013 Swinton J.: Overview [ 1 ] The applicants, all school boards, have brought this application for judicial review to challenge the refusal of the Workplace

Safety and Insurance Board (“the WSIB”) to disclose information from individuals’ claims files to them. The main issue to be determined in this application is whether the statutory right to subrogation conferred on

Schedule 2 employers by s. 30(11) of the Workplace Safety and Insurance Act , 1997 , S.0. 1997, c. 16,

Schedule A (“the WSIA ”) gives such employers the right to acquire medical and other information about claimants. [ 2 ] For the reasons that follow, I would dismiss this application, as s. 30(11) does not confer a right to information. As well, to the extent that this application calls into question the WSIB’s

interpretation of freedom of information obligations, it is premature, given an alternative process whereby the applicants can seek access by way of a freedom of information request. Factual Background [ 3 ] The applicants are

Schedule 2 employers under the WSIA . Thus, they are responsible to pay the costs of the benefits paid to their employees under the WSIA. Subsection 30(11) confers a right of subrogation on such an employer if a worker is injured by a third party but elects to claim benefits under the WSIA . Subsection 30(11) provides: If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a

Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the worker or survivor in respect of the action. The employer is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms. [ 4 ] Subsection 30(10) confers a similar right of subrogation on the WSIB with respect to workers employed by

Schedule 1 employers who elect to receive benefits under the WSIA . According to an affidavit filed in this application, the WSIB seeks the consent and cooperation of a worker when it asserts its right to subrogation. [ 5 ] The applicants have retained the David Law Firm (“DLF”) to pursue claims against Asbestos Compensation Trust Funds in the United States. These trust funds were established to handle claims of victims of asbestos-related diseases by companies formerly involved in manufacturing and supplying materials containing asbestos.

DLF is pursuing subrogated claims on the applicants’ behalf respecting payments to their former workers or survivors for asbestos-related injuries. [ 6 ] In order to pursue claims against the trusts, a proof of claim form must be filed.

The form requires the claimant to disclose certain personal information relating to the person’s name, social security number, death certificate (if applicable), medical documentation that confirms the diagnosis of an asbestos-related disease, and work history showing employment that exposed the claimant to asbestos. [ 7 ] Despite the applicants’ attempts to obtain the consent of workers or their estates to allow access to the workers’ medical and employment information, only one consent has been obtained.

There has been no response to the other requests. [ 8 ] As a result, the applicants have sought the necessary information directly from the WSIB, requesting access to information in the claim files of the applicants’ injured workers. The WSIB has refused to provide such access, suggesting that the appropriate way of proceeding is by a freedom of information request, if consent is not forthcoming. [ 9 ] The Hamilton Wentworth Catholic School Board made such a request.

The request was denied by the Freedom of Information Coordinator of the WSIB on the basis that the employee information sought is personal information of the person concerned. The disclosure of medical and employment history is presumed to constitute an unjustified invasion of the individual’s personal privacy under s. 21(3) (

a) and (

d) of the Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 (“ FIPPA ”). That decision has been appealed to the Information and Privacy Commissioner (“IPC”), but the appeal has been stayed pending the outcome of this application for judicial review. The Issues [ 10 ] The applicants raise the following issues: 1. Did the WSIB unreasonably conclude that the applicants were not entitled to the employee information under s. 30(11) of the WSIA ? 2.

Did the WSIB err in finding that the disclosure of the information was contrary to the privacy provisions of the FIPPA ? [ 11 ] The WSIB argues that this Court should not grant judicial review, as there has been no “decision” by it that is capable of being judicially reviewed. Alternatively, the WSIB argues that the relief of mandamus sought by the applicants is not appropriate, as the WSIB has no statutory duty to disclose the employee information. In the further alternative, the WSIB argues that the application is premature, as there is an adequate alternative remedy available under the FIPPA .

Finally, and again in the alternative, the WSIB argues that its

interpretation of the WSIA was reasonable. [ 12 ] Both parties agree that the WSIB’s

interpretation of the WSIA is reviewable on a standard of reasonableness, as the WSIB is interpreting its home statute. [ 13 ] The applicants argue that the WSIB’s

interpretation of the FIPPA is reviewable on a standard of correctness. Given our conclusion that the determination of the FIPPA issue is premature, it is not necessary to determine this question. Analysis Is there a decision to review? [ 14 ] While the WSIB argues that there is no decision before this Court capable of being judicially reviewed, it did refuse to grant

the applicants access to the worker information. That was a refusal that is open to review by this Court. Moreover, the applicants seekrelief in the nature of mandamus. In order to decide that claim, it is necessary to determine if the WSIB has a duty to release informationpursuant to s. 30(11). Is there an employer right to information under s. 30(11) of the WSIA? [15] I turn now to the issue of the

interpretation of s. 30(11) by the WSIB. The applicants argue that their right to subrogation in s.30(11) puts them in the shoes of the workers who elected benefits under the WSIA. They argue that they are subrogated to all rights ofworkers or their dependents “in respect of the injury to the worker”. [16] I note that this statement in their factum is not strictly accurate.

The legislation states that the employer is subrogated to therights of the worker or survivor “in respect of the action.” It does not state that the rights are in respect of the injury. [17] The applicants argue that “fundamental to the notion of subrogation is the right to receive the benefit of all rights andremedies of the assured as against third parties, which if satisfied, will extinguish or diminish the ultimate loss sustained” (Factum, para.43).

They cite no authority to support their assertion that the right to subrogation includes a right to information. [18] The applicants rely on a passage from Somersall v. Friedman, 2002 SCC 59 , [2002] 3 S.C.R. 109, which describesthe main purposes of subrogation at paragraph 50: subrogation preserves the principle of indemnity by ensuring that the “insuredreceives no more and no less than full indemnity”, and it ensures that “the loss falls on the person who is legally responsible for causingit”.

In my view, it is noteworthy that the Court goes on to state, “The doctrine of subrogation operates to ensure that the insured receivedonly a just indemnity and does not profit from the insurance.” Thus, this passage does not assist the applicants in the present case. [19] Indeed, despite the applicants’ broad assertion respecting the scope of subrogated rights, their right of access to employeeinformation under the WSIA must be determined in accordance with the terms of the applicable legislation.

Do the words of s. 30(11),read in the context of the WSIA as a whole, give an employer right of access to a worker’s personal information? [20] The parties both refer to the modern approach to statutory

interpretation, which requires that the words of a statute be read incontext and in their grammatical and ordinary sense and in harmony with the object and scheme of the legislation and the intention of thelegislature (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21). [21] The words of s. 30(11) confer a right of subrogation to the rights of a worker in respect of an action. There is nothing explicitin the words of the subsection conferring a right of access to information pertaining to that worker, nor is there a duty to cooperate by theworker.

Therefore, the plain wording of the provision does not assist the applicants. [22] Moreover, when that provision is read within the context of the WSIA as a whole, it is evident that it is inappropriate to read inan employer right of access to information under that subsection. It is significant that ss. 58 and 59 deal explicitly with an employer’srights to obtain information about a worker held by the WSIB. The employer can seek access pursuant to s. 58(1) only if there is an“issue in dispute” – that is, an issue regarding a worker’s entitlement to benefits.

The WSIB will then determine which documents arerelevant. Before giving access, the WSIB must, pursuant to s. 59(1), notify the worker and give him or her an opportunity to object. Anappeal lies to the Appeals Tribunal from a determination under these provisions.

As well, s. 59(6) imposes a duty of confidentiality onthe employer and its representatives not to disclose any health information obtained “except in a form calculated to prevent theinformation from being identified with a particular worker or case.” [23] Thus, the WSIA has dealt specifically with the employer’s right to worker information in ss. 58 and 59, including a noticerequirements and safeguards for the worker’s privacy.

The right of access claimed by the applicants under s. 30(11) would not besubject to any notice requirement or protection for the privacy interests of the worker. [24] It is noteworthy that some of the other provinces have explicitly dealt with a worker’s duty to cooperate and provideinformation where there is a subrogated right of action. For example, s. 22(9) of the Alberta Workers’ Compensation Act, R.S.A. 2000,c.

W-15 explicitly requires cooperation by the worker when an action vests in the Workers’ Compensation Board, including a duty tosecure and provide any or all information or evidence. [25] Subsection 30(11) of the WSIA does not include any language that suggests a right of the employer to have access to aworker’s personal information. Nor does the subsection confer any duty on the WSIB to disclose information. Therefore, the WSIBcorrectly concluded that the applicants had no right to obtain workers’ information under s. 30(11).

Is this application for judicial review premature? [26] The applicants also submitted that the WSIB has the authority to release the employee information because it has theauthority, pursuant to s. 118(1) of the WSIA, to decide all matters and questions arising under the WSIA, except where the Act providesotherwise. They argue that the WSIB misinterpreted provisions in the FIPPA respecting the disclosure of personal information. Inparticular, they rely on s. 42(1)(

c) of the FIPPA, which provides that personal information can be disclosed “for the purpose for which itwas obtained or compiled or for a consistent purpose”.

Section 43 defines a “consistent purpose” in circumstances where personalinformation has been collected directly from the person to whom it relates: the purpose of the use or disclosure is a consistent purpose“only if the individual might reasonably have expected such a use or disclosure.” [27] The WSIB argues that the applicants’ proper course of action is to pursue a freedom of information request under the FIPPA,as one of the school boards has done. Accordingly, it submits, this application for judicial review is premature. [28] Judicial review is a discretionary remedy.

Where an applicant has an adequate alternative remedy, failure to pursue thatremedy may preclude relief by way of judicial review. For example, in Volochay v. College of Massage Therapists of Ontario, 2012ONCA 541, the Court of Appeal rejected an application for judicial review of an investigation by the College of Massage Therapists, asthere was an adequate alternative remedy available through the Health Professions Appeal and Review Board. The Court of Appeal

described an alternative remedy to be adequate if the alleged defect is capable of being raised before the reviewing body, and the reviewing body is capable of curing the defect (at para. 73). [ 29 ] The applicants have an alternative remedy to pursue in seeking the personal information of the workers by bringing a freedom of information request. One of the applicants has commenced this process, but has not yet proceeded with the appeal to the IPC.

While the applicants argue that the IPC will not consider the application of ss. 42 and 43 in the context of an appeal, it is not evident that this will be the case. [ 30 ] It is preferable that the appeal of the earlier denial of access to information be determined by the IPC, a process that is less costly and likely to be more convenient than a court proceeding. If the applicants are not successful, they can then pursue an application for judicial review of the IPC decision.

For this Court to determine the scope of the provisions of the FIPPA and their interaction with the WSIA in the present proceeding risks an inconsistent decision with that of the IPC. [ 31 ] Therefore, this application for judicial review, to the extent it challenges the WSIB’s

interpretation of the FIPPA , is premature. Conclusion [ 32 ] Accordingly, this application for judicial review is dismissed. The applicants shall pay costs to the WSIB fixed in the amount of $3,430.20, an amount agreed upon by the parties. ___________________________ Swinton J. ___________________________ Kent J. ___________________________ Harvison Young J. Released: February 26, 2013 CITATION: Lambton Kent District School Board v. Workplace Safety and Insurance Board, 2013 ONSC 839 DIVISIONAL COURT FILE NO.: 209/12 DATE: 20130226

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT kent, swinton and harvison young jj. B E T W E E N: LAMBTON KENT DISTRICT SCHOOL BOARD, HAMILTON WENTWORTH CATHOLIC SCHOOL BOARD, GREATER ESSEX DISTRICT SCHOOL BOARD, TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD AND DISTRICT SCHOOL BOARD OF ONTARIO NORTH EAST Applicants - and - WORKPLACE SAFETY AND INSURANCE BOARD Respondent REASONS FOR JUDGMENT _________________________________________ Swinton J. Released: February 26, 2013