Confidentiality breach proves expensive for federal government

The federal government and two employees who worked for an Employee Assistance Program were ordered to pay nearly $175,000 for breaching the rights of an employee who sought their assistance in a case that underlines the importance for employers and personnel to safeguard confidential information.

“Employers must draw lessons from this ruling on how to deal with confidential and private information of employees,” said Sébastien Lorquet, a labour and employment lawyer with Fasken Martineau DuMoulin LLP. “They must understand that if confidential and private information is disclosed and that it causes harm to an employee, then employers and employees at fault can be held liable for damages incurred by the employee who suffered harm.”

Five years ago J.T., a “discreet and competent” software programmer who worked for the federal government for 18 years, sought help from an Employee Assistance Program (EAP) offered by the government after having two nightmares over a period of a couple of weeks in which she dreamt of killing her father. The nightmares occurred shortly after she refused to financially help her father, a compulsive gambler. The counsellor, who worked for the EAP for a little more than a decade, was not fully bilingual and misinterpreted J.T.’s French-spoken admission. She mistakenly thought that J.T. “had two plans to kill her father,” which was not the case. The counsellor interrupted the consultation and asked her supervisor, a social worker in charge of the EAP program, to call police because “this is serious.” When police arrived, J.T. tried to explain that it was a misunderstanding but to no avail. J.T. was then escorted by police to a hospital where she was seen by a mental health counsellor who concluded that J.T. posed no danger to herself or to her father and she was released from the hospital that same evening.

When J.T. went to work the following day, her supervisor informed her that following the revelations she made, she was not authorized to be in the workplace without a medical certificate demonstrating she was mentally fit. J.T. returned to work a month later, and had the impression that her colleagues knew what took place. She transferred to another department, and she believed that her new colleagues too were aware of the events that transpired. She then stopped working altogether.

It turned out that the social worker ended up calling more than just police. She had informed her employer, including security, human resources, and a ministerial committee on workplace violence “even though the situation was not related to work,” notes Quebec Superior Court Justice Carole Therrien in her 38-page ruling in J.T. v. Barber 2014 QCCS 4726. All told, more than a dozen people knew what took place.

The case was mishandled on several fronts, concluded Justice Therrien. The counsellor who misinterpreted J.T.’s revelation did not meet her professional obligation to fully understand the language spoken by the client. “A helping relationship demands more than a functional mastery of the client’s language,” said Justice Therrien. “In this context, a counsellor has the duty to understand the client’s discourse, with all its subtleties. Each word has a precise meaning and the message cannot be understood in part or poorly decoded.”

The counsellor also “erroneously” breached her confidentiality obligations, added Justice Therrien. Before breaching their confidentiality obligations, a counsellor must “fear” that a client will execute their homicidal ideas before taking appropriate steps. While the counsellor argued that she did not possess the skills to evaluate the risk J.T. represented, Justice Therrien noted that her employer gave her the responsibility to determine the level of potential danger when responding to clients involved in crises. “An EAP client has the right to expect that a counsellor who she confides in has the requisite skills to correctly manage their difficulties,” added Justice Therrien.

But even if the counsellor was justified in believing that J.T. should be evaluated by a doctor or psychiatrist, she failed to follow steps outlined by the EAP policy and Quebec’s Civil Code, pointed out Justice Therrien. Under s. 27 of the Civil Code, a person may be placed under preventative confinement if the danger is grave and immediate, without the authorization of the court, as provided for in the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (Act). However under s. 8 of the Act, a peace officer may, without the authorization of the court, take a person against his will to an institution only if there is no member of a crisis intervention unit available in due time to assess the situation. The EAP policy also states that counsellors are expected to refer patients to the appropriate resources. But the counsellor did not take steps to contact a crisis intervention center and nor she did ask J.T. whether she would consent to going to a hospital and consult with a doctor or psychiatrist.

“One of the interesting things about the case is that the government put in place a policy to avoid these situations and it seems that the employees did not follow the procedures,” remarked Lorquet. “It’s important for employers who implement such policies around confidential information that they train its employees and ensure employees respect such policies.”

The Attorney General of Canada argued that the two EAP employees – even though they worked as a service provider for the government – “represented the employer” and that as a result had the responsibility to ensure the security of the workplace. The social worker’s decision to inform their supervisors was therefore fully justified. But Justice Therrien dismissed the argument, pointing out that the “State cannot invite employees to take advantage of a confidential service for their personal problems and then oblige its counsellors to…divulge information to the employer.”

Justice Therrien concluded that by “illicitly and intentionally” breaching their confidentiality obligations, the two EAP employees as well as the federal government infringed J.T.’s rights under the Canadian Charter of Rights and Freedoms. Justice Therrien awarded J.T., a self-represented litigant, nearly $175,000, including $109,000 for loss of salary, $60,000 for breaching her integrity, and $8,000 in expert fees.

“The issue of confidential information in the workplace is continuously evolving, and represents a risk to employers,” noted Lorquet. “Employers who implement an employee assistance program have an obligation to ensure that its employees are trained and qualified.”

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