CBSA employee granted confidentiality order to shield medical records from man she accused of sexual harassment, assault

Canada Border Services Agency. Photo: Hermes Rivera/Unsplash

A Canada Border Services Agency (CBSA) worker who doesn’t want the man she accused of sexually harassing and assaulting her during employment to view her private medical records has been granted an order for limited confidentiality.

“I accept that there is a real and substantial risk that the disclosure of all of her personal medical records to the respondent (MP) will cause undue hardship to the Complainant,” the Canadian Human Rights Tribunal said in its ruling.

The complainant, LN, had disclosed her redacted medical records from 2017-2019 to legal counsel of the opposing parties in preparation for an inquiry into her complaints against CBSA and MP, whom she accuses of sexual harassment and assault during her employment.

LN filed a motion under section 52(1) of the Canadian Human Rights Act, seeking to restrict the disclosure of her medical records solely to the counsel for the respondents and the Canadian Human Rights Commission, barring MP from accessing them. She expressed concerns over undue hardship and psychological distress if he were to view her complete medical records.

The Tribunal, acknowledging the sensitivity of the case, agreed to issue a ruling for limited confidentiality, citing the real and substantial risk of undue hardship to the complainant if her full medical records were disclosed to MP. This decision, while allowing necessary access for legal representatives, aims to protect the complainant’s privacy and mental well-being.

“She says he sexually harassed and assaulted her during her employment and because of these events she experienced depression and symptoms of PTSD,” it said in the ruling.

“The Complainant argues that disclosing private and sensitive medical information to the person who assaulted her will compound the violation she has already experienced and will result in added psychological trauma in the form of humiliation, triggers and flare-ups of her depression and PTSD symptoms, and panic attacks.”

CBSA argued that while the disclosure would cause LN discomfort and hardship, it did not rise to the level of “undue hardship” as required by section 52.

But the Tribunal disagreed, saying allowing MP to view the full records would cause her psychological distress.

“The Complainant’s interactions with the parties and Tribunal during case management has at times demonstrated that her mental health has been fragile,” it said.

Tribunal’s order

The Tribunal rules that LN’s medical records can be disclosed only to counsel for the respondents and to the commission, with the exception of medical records that any party seeks to adduce as evidence as determined by their legal counsel.

It also ordered CBSA to appoint a designated representative to review the proposed evidence and provide instructions to counsel and that no copies be made.

It also said LN’s medical records “may not be used for any purpose outside of the present inquiry and must be returned to the Complainant at the conclusion of the hearing.”

For more information, see Nordhage-Sangster v. Canada Border Services Agency and Pridmore, 2023 CHRT 45 (CanLII).

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