A federal Health and Safety Officer’s file was not absolutely privileged, and a labour arbitrator may order parts of it produced to parties in an arbitration, an arbitrator has decided.

A safety issue arose between the employer and two unionized employees. A federal Health and Safety Officer got involved and issued a Direction to the employer.  The union alleged that the employer had retaliated against the employees, contrary to the collective agreement. 

The employer subpoenad the federal Health and Safety Officer to testify at the arbitration hearing.  Human Resources and Skills Development Canada got involved, and the Health and Safety Officer was instructed not to produce his file.

HRSDC argued, before the arbitrator, that the Health and Safety Officer’s file was “absolutely privileged” because of sections 144(5) and 144(5.1) of the Canada Labour Code.  Those sections provide:

Information not to be published

144. (5) No person shall, except for the purposes of this Part or for the purposes of a prosecution under this Part, publish or disclose the results of an analysis, examination, testing, inquiry, investigation or sampling made or taken by or at the request of an appeals officer or a health and safety officer under section 141.

Personal  information

(5.1) If the results referred to in subsection (5) contain information within the meaning of Part 4 of the Department of Human Resources and Skills Development Act, the disclosure of that information is governed by Part 4 of that Act.

The arbitrator concluded that the intent of section 144(5) was to “safeguard the integrity of HSO investigations”, but that section does not refer to “privilege”. Instead, that section placed ”limited prohibition on publication and disclosure”.  Section 144(5) was a confidentiality provision, not a privilege provision. Unlike privileged information, confidential information may be subject to production in litigation.  Also, in the arbitrator’s opinion, the confidentiality created by that provision expires once the Health and Safety Officer has provided the “results” to the parties.

As such, the arbitrator denied HRSDC’s objection to the production of the Health and Safety Officer’s file.  The arbitrator ordered that the hearing resume in camera for the purpose of considering “ways and means of dealing with any privileged personal information contained in the HRSDC file.”

The decision may be accessed here.