- Evidence (privacy of worker)
- Jurisdiction, Tribunal (production of documents)
- Procedure (production of documents)
- Summons
In this interim decision the Panel granted the deceased worker's representative's request for the Tribunal to issue a summons to compel the production of documents from the Ontario Ministry of Community Safety and Correctional Services (MCSCS).
The Tribunal has legal authority to issue the requested summons. Subsection 131(2) of the WSIA authorizes the Tribunal to "determine its own practice and procedure." The Panel considered whether the additional evidence sought by the worker was relevant to a determination of the issue in dispute under the Tribunal's Practice Direction entitled Summonses and Production of Documents. The Panel determined that the samples requested were arguably relevant to the worker's appeal, as the worker's entitlement to benefits involved a determination of the worker's occupational exposures on November 22, 2002, and whether that exposure significantly contributed to the development of her connective tissue disease and rheumatoid arthritis. However, the Panel found that the summons ought to be limited to the test results pertaining to blood and hair samples of the deceased patient.As the documents sought involved third party information of a personal and highly sensitive nature, the Panel also considered privacy concerns as per the Freedom of Information and Protection of Privacy Act (FIPPA). The Ministry is subject to the provisions of the FIPPA. It was noted that while the Ministry is obligated to comply with FIPPA and refuse the disclosure of the deceased individual's personal information, the Panel was satisfied that the Tribunal can nonetheless compel production (see Decision No. 601/11I). The Panel in Decision No. 601/11I noted that section 132 of the WSIA empowers the Tribunal to compel the production of documents in the same manner as a court. The Tribunal's power to compel production of a document falls within the scope of subsection 64(2) of the FIPPA.The Panel also referred to certain orders of the Information and Privacy Commission, which suggest that there is a diminished expectation of privacy or diminished privacy interest for persons who have been deceased for more than ten years. The Panel also considered Decision No. 3097/17, in which it was determined that the documents, once anonymized, did not constitute personal information within the meaning of FIPPA, as it was not reasonable that the individual could be identified from the information. Taking into account the specific circumstances of this case, the Panel found it appropriate to mitigate the privacy concerns by redacting any personal information pertaining to the deceased patient, and leaving only that information which is relevant to the present appeal.