Administrative law – Workers Compensation Board – Disclosure of third party records – Confidentiality – Freedom of information and protection of privacy – Invasion of personal privacy – Personal information – definition – Judicial review – Disclosure – Compliance with legislation – Public interest
Halifax Herald Ltd. v. Nova Scotia (Workers’ Compensation Board),  N.S.J. No. 541, Nova Scotia Supreme Court, December 8, 2008, G.M. Warner J.
Halifax Herald Ltd. (the “Herald”), appealed from the Workers’ Compensation Board’s refusal to provide the names of employers with the most workplace injuries and related disclosures.
The Herald requested names of 25 companies with the highest number of injuries reported in the years 2004 to 2006 and answers to four related questions. WCB refused to provide the names of the employers. Further, WCB stated that it could only answer two of the four questions, namely the numbers and types of accidents reported by the 25 employers and the cost of claims paid by WCB for injuries for the 25 employers. WCB refused to answer questions about the size of the 25 workforces and each employer’s safety rating compared to their industry average.
WCB argued that information which was not disclosed was confidential and protected under the Freedom of Information and Protection of Privacy Act (FOIPPA). The request was reviewed by a Review Officer who recommended the release of the requested information in its entirety. The WCB declined to answer the request and the Herald appealed to the Court.
The Court accepted that there may be circumstances where release of non-personal information, when combined with other information held by a member of the public, might lead to identification of personal information about an individual. The Court was obligated to consider this factor.
The burden was on the person requesting release of the information to establish on a balance of probabilities that the disclosure of any such information would not be an unreasonable invasion of the third parties’ personal privacy (in this case, the personal privacy of an injured worker).
The Court concluded, however, that there was no factual basis for the submission that the release of the names of the 25 employers, out of the 18,508 registered with WCB, would lead to the identification of an individual and, more importantly, to the release of information about that individual constituting an unreasonable invasion of personal privacy.
Accordingly, the Herald was entitled to disclosure of the names of the employers and related information, unless WCB could establish an exemption under section 21, FOIPPA.
The claim for the exemption required WCB to show that disclosure:
1.a) would reveal labour relations or financial information about the 25 employers,
1.b) would reveal information supplied implicitly or explicitly in confidence, and
1.c) could reasonably be expected to harm significantly the employers’ competitive position, or result in similar information no longer being supplied to WCB when it is in the public’s interest that it is supplied.
The first issue was whether the information was about labour relations.
WCB submitted that the Workers’ Compensation Act (“WCA”) which WCB administers applies to the worker-employer relationship in respect of workplace safety and, in particular, involves workers who suffer an injury by accident arising out of and in the course of employment (s. 10(1)). The information requested was “labour relations” information.
The Court agreed with WCB and held that Herald’s request dealt directly with the employer-worker relationship and, in particular, workplace safety.
However, the Court disagreed with WCB’s argument that the information sought to be disclosed was information supplied by the employers. The Herald sought disclosure of the names of 25 employers with the highest number of workplace accidents. This information was tabulated by WCB and was not supplied by the employers.
Despite its conclusion in this regard, the Court considered whether the information was supplied in confidence.
In the Court’s view, the fact of the accident is not something that one would expect, as a matter of common sense, viewed on an objective standard, to meet the narrowly interpreted entitlement to secrecy, where privacy trumps access. Other than the bald general assertion in affidavits that confidentiality was expected, there was no evidence upon which it was reasonable to expect confidentiality with respect to the fact that a workplace accident has occurred in a particular workplace.
Although specifics were not put in evidence, the Court recognized that there are more reasons than simply employer’s poor attitude to workplace safety that may affect the number of workplace injuries. It may simply be that the employer has a very large workforce in comparison to the other 15,507 employers. Further, not all employment involves the same risk to employees. Some employers’ work activities are inherently more risky. On this basis, the Court held that employers whose names might be disclosed by reason that they have very large workforces, or are involved in inherently risky industries, would not be embarrassed by disclosure, unless their incidence of workplace injuries is worse than their competitors.
Accordingly, the Court rejected the unsubstantiated assertion that disclosure would embarrass the employers and significantly harm their competitive position. On the contrary, the Court held that disclosure should encourage a workplace with a comparatively poor safety record to improve its safety record, and logically should make that employer more competitive in terms of attracting employees, reducing its WCB rate, and attracting customers.
Thus, on the evidence before it, the Court concluded that the public interest was better served by disclosure, and granted the application.
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