Disclosure of record; Workers compensation - Benefits - Subrogated actions; Freedom of information and protection of privacy - Disclosure of records; Judicial review - Disclosure of records - Compliance with legislation - Applications - Premature

Lambton Kent District School Board v. Ontario (Workplace Safety and Insurance Board)

The Applicant school boards unsuccessfully appealed the decision of the Respondent Workplace Safety and Insurance Board denying the Applicants access to their employees’ information.

[2013] O.J. No. 815

2013 ONSC 839

Ontario Superior Court of Justice

J.C. Kent, K.E. Swinton and A.L. Harvison Young JJ.

February 26, 2013

The Applicant school boards are “employers” under Schedule 2 of the Workplace Safety and Insurance Board (the “Board”). The Applicants are responsible for paying benefits to their injured employees. Section 30(11) of the Workplace Safety and Insurance Act confers a right of subrogation on such an employer if their employee was injured by a third party but still claims benefits from the Board.

The Applicants retained a law firm (the “Firm”) to pursue claims against Asbestos Compensation Trust Funds in the United States. In order to claim against these funds, certain personal information needs to be provided about the injured parties. Only one of the injured employees of the Applicants has provided the information needed for the Firm to pursue the claims from the funds.

The Applicants asked the Board for the information necessary to pursue the claims. The Board refused to provide the information and suggested a freedom of information request be made. One of the Applicants made a freedom of information request and the request was denied. The freedom of information decision was under appeal at the time the Divisional Court heard this application for judicial review.

The Applicants made this application to the Court. The Court had to decide whether the Board unreasonably concluded that the Applicants were not entitled to the employee information, pursuant to the subrogation provision of the Act. The Court held it was premature to consider whether the Board erred in finding the disclosure would have been contrary to the provisions of the Freedom of Information and Protection of Privacy Act.

The Applicants argued that the right of subrogation put them “in the shoes of” the workers who elected benefits under the Act. The Applicants relied on the fundamental notion of subrogation in making this argument; they did not cite any authority for the proposition that the right of subrogation included a right to information.

The Court considered whether the words of the statute, read in context, conferred a right to the information being requested by the Applicants. The Court held that the specific section in issue did not assist the Applicants. The Court then noted that the Act did contain provisions relating to an employer’s access to employee information. Those provisions impose a duty of confidentiality on employers.

The Court concluded that the Board correctly concluded that the Applicants had no right to obtain the workers’ information pursuant to section 30(11) of the Act. The Court therefore dismissed the application for judicial review and ordered that the Applicants pay costs.