Date:
20080201
Docket: A-551-06
Citation: 2008 FCA 39
CORAM: DÉCARY
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
JEFFREY P. WYNDOWE
(Psychiatric Assessment Services Inc.)
Appellant
(Respondent)
and
JACQUES ROUSSEAU
Respondent
(Applicant)
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
This
appeal raises the following issue: whether the handwritten notes of a doctor,
taken during an independent medical examination (IME) of an insured person
performed in Ontario by the doctor at the request of an insurance company, are
personal information under the Personal Information Protection and
Electronic Documents Act (the PIPED Act) (S.C. 2000, c.5). If they are, the
insured person has the right to access the notes.
Background
[2]
Mr.
Rousseau (the insured person) was receiving long-term disability benefits from
Maritime Life (the insurer). As part of his insurance policy, Maritime Life was
entitled to have Mr. Rousseau subjected to an IME. A dispute arose
regarding Mr. Rousseau’s continued eligibility for benefits. Maritime Life
retained the services of Dr. Wyndowe (through his corporation, Psychiatric
Assessment Services Inc.) to perform an IME of Mr. Rousseau. Dr. Wyndowe
explained the purpose and nature of the insurer’s examination to Mr. Rousseau
and Mr. Rousseau signed a “Form 14” consent whereby he consented to the
disclosure of the doctor’s report to the insurer.
[3]
Following
completion of the IME, Dr. Wyndowe sent a formal written report to Maritime
Life. A copy of that report was eventually sent to Mr. Rousseau, at his
request, by Maritime Life. Mr. Rousseau also requested a complete copy of
Dr. Wyndowe’s file. The file was composed only of the doctor’s notes taken
during the IME. Dr. Wyndowe refused to grant access to the notes. The insurer,
as far as we know, did not have access to the notes.
[4]
Subsequent
to, and because of the doctor’s report, Maritime Life terminated Mr. Rousseau’s
long-term benefits.
[5]
Mr.
Rousseau complained to the Office of the Privacy Commissioner (the Privacy
Commissioner) with respect to Dr. Wyndowe’s refusal to disclose the notes. The
complaint was allowed and the Privacy Commissioner recommended that Dr. Wyndowe
disclose his notes to Mr. Rousseau. Dr. Wyndowe refused.
[6]
Pursuant
to section 14 of the PIPED Act, Mr. Rousseau applied to the Federal Court for
an order that Dr. Wyndowe’s notes be provided to him. The Privacy Commissioner
was granted, under paragraph 15(c), leave to be added as a party
respondent.
[7]
Mr.
Justice Teitelbaum granted Mr. Rousseau’s application and ordered he be given
access to the notes (2006 FC 1312).
[8]
Hence the
within appeal.
Preliminary observations
[9]
a) the
motivation of Mr. Rousseau
We have been informed at the
hearing that as a result of a successful claim filed by Mr. Rousseau with the
Ontario Superior Court of Justice, the matter between Mr. Rousseau and his
insurer was settled. However, Mr. Rousseau is still seeking access to the
notes. He is entitled to or he has a right under the PIPED Act to pursue his
application, regardless of motivation. (see Canada (Information Commissioner)
v. Canada (Minister of Citizenship and
Immigration)
2002 FCA 270 at para. 9). He did not file any representations in this appeal
and his interests are defended by the Privacy Commissioner.
[10]
b) the
personal information at issue
In her factum and at the
hearing, the Privacy Commissioner recognized that she is not seeking access to
the totality of the notes made by Dr. Wyndowe. She is seeking access rather to
parts of the notes which record Mr. Rousseau’s answers to Dr. Wyndowe’s
questions or which record Dr. Wyndowe’s observations of the behaviour of Mr.
Rousseau. That concession had not been made before Mr. Justice Teitelbaum.
[11]
Counsel for both
parties agreed that if the Court ended up ordering access to only parts of the
notes, the severance process would be undertaken by the Privacy Commissioner
with the full cooperation of counsel for the appellant.
[12]
c) the
section 9(3) exemption
Before the Federal Court, the insurer
relied on the exemptions for “solicitor-client privilege” (para. 9(3)(a))
and for an ongoing “formal dispute resolution process” (para. 9(3)(d)).
The exemptions were found by Justice Teitelbaum to be inapplicable. This
finding was not appealed.
[13]
d) constitutional issue
Despite the fact that Dr. Wyndowe argues
in his factum that general legislative jurisdiction over health belongs to the
provinces subject to Parliament’s ancillary or emergency powers (see Schneider
v. The Queen, [1982] 2 S.C.R. 112 at 137; Bell
Canada v. Québec (Commission de la santé et de
la sécurité du travail du Québec),
[1988] 1 S.C.R. 749 at 761 and Chaoulli v. Québec (Attorney General),
[2005] 1 S.C.R. 791, at paras. 16-18), he falls short of arguing that personal
health information of the type at issue in this appeal could not, for
constitutional reasons, be regulated by federal legislation. I, therefore,
express no opinion on this issue.
[14]
e) Ontario legislation
Subsection 30(1) of the PIPED Act
provides that Part I does not apply “to any organization in respect of personal
information that it collects, uses or discloses within a province whose
legislature has the power to regulate the collection, use or disclosure of the
information”. A province is allowed three years from the entry into force of
section 30 (i.e. January 1, 2001), under subsection 30(2), to adopt such
legislation. If it does not, Part I will apply.
[15]
Subsection 30(1.1) of
the PIPED Act provides that Part I does not apply “to any organization in
respect of personal health information that it collects, uses or discloses”,
but only for a year from the entry into force of section 30 (i.e. January 1,
2001) (subsection 30(2.1)).
[16]
Paragraph 26(2)(b)
of the PIPED Act empowers the Governor in Council, if satisfied that
legislation of a province that is substantially similar to Part I of the PIPED Act
applies to an organization or an activity, to exempt by order that organization
or activity from the application of Part I within that province.
[17]
Subsequent to the
events that led to this appeal, Ontario adopted the Personal Health
Information Protection Act, 2004 (S.O. 2004, c. 3, Sched. A). The Act
applies to health care and to “health information custodians”. It is common
ground that it does not apply to doctors performing an IME.
[18]
On November 28, 2005,
the Governor in Council, being “satisfied” that the Ontario Act was
“substantially similar to Part I of PIPEDA”, adopted an Order exempting from
the application of Part I of the PIPED Act “any health information custodian to
which the [Ontario Act] applies”, (SOR 2005-399). It is common ground that this
exemption does not apply to doctors performing an IME in Ontario.
[19]
f) work
product information
Dr. Wyndowe has not directly argued that
the notes can be described as what is known in privacy law as “work product
information”.
[20]
A useful definition
of “work product information” is found in section 1 of the Personal
Information Protection Act of British
Columbia (SBC 2003, c. 63):
“work
product information” means information prepared or collected by an individual
or group of individuals as a part of the individual’s or group’s
responsibilities or activities related to the individual’s or group’s
employment or business but does not include personal information about an
individual who did not prepare or collect the personal information.”
[21]
British Columbia has excluded “work product information”
from the definition of “personal information”. Alberta has declined to do so,
“reasoning that the current contextual approach allows for greater flexibility
than a categorical exclusion” (Final Report, dated November 2007, of the
Alberta Select Special Personal Information Protection Act Review Committee, p.
25, 26).
[22]
On the federal stage,
the Standing Committee on Access to Information, Privacy and Ethics, in its
Fourth Report tabled in the House of Commons on May 2, 2007, made the following
recommendation:
Work Product Information
Recommendation 2
“The Committee
recommends that PIPEDA be amended to include a definition of ‘work product’
that is explicitly recognized as not constituting personal information for the
purposes of the Act. In formulating this definition, reference should be made
to the definition of ‘work product information’ in the British Columbia Personal
Information Protection Act, the definition proposed to this Committee by
IMS Canada, and the approach taken to professional information in Quebec’s An
Act Respecting the Protection of Personal Information in the Private Sector”.
[23]
In its Response to
the Report, the Government opted for further consultation before accepting the
recommendation:
Response
The government
recognizes that the issue of work product information is of great significance
to a number of stakeholders. In its Report, the Committee has acknowledged the
call from private sector interests to provide more clarity and certainty to
PIPEDA in this area in order to facilitate business planning and to assist them
in their efforts to comply with the Act.
At the same time, the
government must consider the concerns expressed by the Privacy Commissioner and
others regarding the risk of any unintended negative consequences to privacy
that may result from an exemption of work product information.
In keeping with the
general approach of PIPEDA, it is important to balance the need for a
business-friendly privacy regime with the need for maintaining the existing
level of privacy protection currently provided by the Act. In light of this,
the government will commit to consult further and consider how organizational
needs respecting collection, use, and disclosure of work product information
can be accommodated in a manner that poses the least degree of risk to privacy
protection.
As proposed by the
Committee, consideration will be given to various approaches, including those
proposed in submissions to the Committee and those contained in provincial
privacy laws.
[24]
In these
circumstances, it would have been at least premature for the appellant and
unwise for this Court to rely on an implicit exclusion of “work product
information” from the definition of “personal information”.
Analysis
[25]
To the extent that
the questions before us are either pure questions of law (the interpretation of
the statute) or questions of law extricable from questions of mixed law and
fact, the standard of review of correctness applies.
[26]
A) the
common law
The appellant first submits that as the PIPED
Act does not clearly and unambiguously override the common law respecting the
right of access to one’s personal health record, the common law should apply.
At common law, as the argument goes, the right to inspect one’s medical records
is only recognized where there is a fiduciary relationship between physician
and patient (see McInerney v. MacDonald, [1992] 2 S.C.R. 138. As there
is no fiduciary relationship between the insured and the insurer’s doctor
performing an IME (see X(Minors) v. Bedfordshire County Council, [1995]
3 All E.R. 353 (H.L.), the insured has no right of access to his medical
records.
[27]
I am not persuaded
that at common law an insured has no right of access to his medical records. In
any event, it is my view that the common law should not prevail where the very
purpose of the PIPED Act is to provide new privacy protections to Canadians not
otherwise enjoyed under the common law.
[28]
The PIPED Act has
expressly addressed “personal health information”, first in the definition
section, then in the transitional provisions section (section 30), and finally
in Principle 9 – Individual Access, where Principle 4.9.1 in Schedule I provides
that “…the organization may choose to make sensitive medical information
available through a medical practitioner”. If there was common law on this
issue, it was clearly overridden by the statute.
[29]
B) commercial
activity
According to paragraph 4(1)(a) of the
PIPED Act, Part I applies to personal information collected, used or disclosed
“in the course of commercial activities”.
[30]
“Commercial activity”
is defined in subsection 2(1):
|
“commercial activity” means any particular
transaction, act or conduct or any regular course of conduct that is of a
commercial character, including the selling, bartering or leasing of donor,
membership or other fundraising lists.
|
« activité
commerciale » Toute activité régulière ainsi que tout acte isolé qui
revêtent un caractère commercial de par leur nature, y compris la vente, le
troc ou la location de listes de donneurs, d’adhésion ou de collecte de
fonds.
|
[31]
The appellant questions the commercial character
of an IME, and whether it is sufficient to bring Dr. Wyndowe’s notes within the
realm of the PIPED Act. The appellant relies on Canada (Information Commissioner)
v. Canada (Transportation Accident Investigation and Safety Board), 2006
FCA 157 at paragraph 69, where Desjardins J.A. was considering the paragraph
20(1)(b) third party information exemption to the disclosure obligation
of the Access to Information Act, and where she stated:
[69] Common sense
with the assistance of dictionaries (Air Atonabee Ltd v. Canada (Minister of
Transport) (1989), 37 Admin. L.R. 245 (F.C.T.D.) (Air Atonabee), at page 268)
dictates that the word “commercial” connotes information which in itself
pertains to trade (or commerce). It does not follow that merely because NAV CANADA is in the
business of providing air navigation services for a fee, the data or
information collected during an air flight may be characterized as “commercial”.
[32]
Paragraph 20(1)(b) of the Access to
Information Act states:
|
20. (1) Subject to
this section, the head of a government institution shall refuse to disclose
any record requested under this Act that contains
. . .
(b) financial,
commercial, scientific or technical information that is confidential
information supplied to a government institution by a third party and is
treated consistently in a confidential manner by the third party;
|
20.
(1) Le responsable d’une institution
fédérale est tenu, sous réserve des autres dispositions du présent article,
de refuser la communication de documents contenant :
(…)
b) des renseignements financiers, commerciaux,
scientifiques ou techniques fournis à une institution fédérale par un tiers,
qui sont de nature confidentielle et qui sont traités comme tels de façon
constante par ce tiers;
|
[33]
Obviously, paragraph 20(1)(b) of the Access
to Information Act is very different from the “commercial activity” term
found in section 4 of the PIPED Act. Keeping in mind the principles in Englander
v. Telus Communications Inc., 2004 FCA 387, it would simply not be appropriate
to apply an interpretation of paragraph 20(1)(b) to a PIPED Act
provision which is, in any event, not couched in the same terms.
[34]
There is
no doubt on the record that Dr. Wyndowe collected the information from Mr.
Rousseau while conducting the IME for the insurer. In this case Dr. Wyndowe
seems to fit exactly the definition in paragraph 4(1)(a): he collected
Mr. Rousseau’s information “in the course of” conducting his IME.
[35]
The
question is whether the IME transaction was of a “commercial nature”, as
defined in section 2. The transaction between Dr. Wyndowe’s corporation and
Maritime Life, who was paying for the IME, is of a commercial nature. Mr.
Rousseau’s relationship between himself and Maritime Life is also clearly of a
commercial nature: it is governed by a contract between Mr. Rousseau and his
insurer, where Mr. Rousseau presumably paid some premiums (or his employer paid
the premiums as part of Mr. Rousseau’s compensation for employment) and he
therefore may or may not be entitled to benefits.
[36]
In the
context of these two commercial relationships – between Dr. Wyndowe’s
corporation and Maritime Life on the one hand and between Mr. Rousseau and
Maritime Life on the second hand – I find it hard to believe that by
introducing a third relationship – between Dr. Wyndowe and Mr. Rousseau – the
commercial nature of the overall transaction is defeated. In my view, Dr.
Wyndowe is merely the medical agent of Maritime Life. If Dr. Wyndowe worked as
a full time doctor for Maritime life, there would be no question the
transaction is commercial; being examined by him would merely be a step which Mr.
Rousseau had to follow to collect his benefits. In that sense the examination
would be akin to filling out a form required by Maritime Life in order to begin
collecting benefits. Just because Dr. Wyndowe is an independent consultant
hired by Maritime Life does not change the fact that the overall transaction retains
its commercial nature. It also does not change the fact that Mr. Rousseau was
only doing what his contract with Maritime Life required him to do to maintain
his benefits, i.e. submitting to an IME.
[37]
It is clear from the
Debates of the Senate on November 4, 1999 (2nd Session, 36th
Parliament, Volume 138, Issue 6) and from the Proceedings of the Standing
Senate Committee on Social Affairs, Science and Technology, on November 25,
1999 (Issue 1), that members of Parliament were concerned both with the constitutional
implications of the PIPED Act and the propriety of applying the Act to the
health care sector. Concerns were also expressed with respect to the practicability
of separating, in the health care sector, commercial from non-commercial
activity. Ms. Perrin, from Industry Canada, acknowledged that the bill “covers
organization engaged in commercial activity” and “that would include such
players as insurance companies who, at this time, have not been covered by
medical privacy bills at the provincial levels…”. She added :
“…it is
very important to cover that entire medical file when it arrives in the
insurance company’s dossiers. That is what this bill will do”. (November 25,
1999)
[38]
Mr.
Binder, Assistant Deputy Minister at Industry Canada, added:
“We
are talking about data in commercial enterprises. Medical activities that are
not involved in commercial activity are not covered by this bill”.
[39]
My
conclusion that notes taken by a doctor in the course of an IME made at the
request of an insurance company are taken “in the course of a commercial
activity” is not, therefore, at odds with what appears to have been
contemplated by Parliament.
[40]
C) personal
information
Personal information is
defined in subsection 2(1) of the PIPED Act as meaning “information about an
identifiable individual”. The Act is therefore very far reaching.
[41]
“Personal
health information” is also defined:
|
"personal
health information"
«renseignement personnel sur la santé »
"personal
health information" , with respect to an individual, whether living or
deceased, means
(a)
information concerning the physical or mental health of the individual;
(b)
information concerning any health service provided to the individual;
(c)
information concerning the donation by the individual of any body part or any
bodily substance of the individual or information derived from the testing or
examination of a body part or bodily substance of the individual;
(d)
information that is collected in the course of providing health services to
the individual; or
(e)
information that is collected incidentally to the provision of health
services to the individual.
|
«renseignement
personnel sur la santé »
"personal health information"
«renseignement
personnel sur la santé » En ce qui concerne un individu vivant ou décédé :
a) tout renseignement ayant trait à sa santé
physique ou mentale;
b) tout renseignement relatif aux services de
santé fournis à celui-ci;
c) tout renseignement relatif aux dons de
parties du corps ou de substances corporelles faits par lui, ou tout renseignement
provenant des résultats de tests ou d’examens effectués sur une partie du
corps ou une substance corporelle de celui-ci;
d) tout renseignement recueilli dans le cadre
de la prestation de services de santé à celui-ci;
e) tout renseignement recueilli fortuitement
lors de la prestation de services de santé à celui-ci.
|
This
definition, particularly paragraph (a), is remarkably encompassing.
[42]
Even though the two
expressions are defined in the Act without reference one to another, it is
clear that “personal health information” is a subset of “personal information”.
[43]
The only
place other than in the definition section where “personal health information”
is referred to in the PIPED Act is in subsections 30(1.1) and 30(2.1), which
are transitional provisions delaying the application of the PIPED Act to
“personal health information” until one year after section 30 comes into force.
The reason for the delay, one can easily assume, was to allow practitioners who
were to be covered by the provision to prepare for the application of the PIPED
Act.
[44]
That
“personal health information” is a subset of “personal information” is confirmed,
also, by Principle 9 which deals with individual access. As previously noted, Principle
4.9.1 allows an organization to “choose to make sensitive medical
information available through a medical practitioner” (my emphasis).
Clearly, therefore, “medical information”, which is “personal health
information”, is “personal information”.
[45]
There is
also no doubt, and I have not heard the appellant suggest otherwise, that the
notes taken by a doctor in the course of an IME form part of the medical
records of the person being examined. And there is no doubt that “personal
health information” includes the medical records of a person.
[46]
Counsel
for the appellant relies heavily on the decision of the Federal Court in Canada
(Privacy Commissioner) v. Canada (Labour Relations Board) (T.D.),
[1996] 3 F.C. 609 where it was found that working notes taken by Board members during
a Canada Labour Relations Board hearing were not “personal information” for the
purposes of the Privacy Act. That decision was confirmed by the Federal Court
of Appeal, but on another ground (2000) 180 F.T.R. 313 (C.A.).
[47]
The thrust
of that decision is that the disclosure of the notes would offend the
adjudicative privilege, also termed judicial immunity, that could be claimed by
administrative tribunals and would compromise the operation of the Board and be
injurious to the conduct of lawful investigations within the meaning of the
exemption found in paragraph 22(1)(b) of the Privacy Act.
[48]
This
decision, therefore, is hardly applicable to the facts of this case.
[49]
In light
of the Privacy Commissioner’s recognition that there are in the notes
information which is personal to Mr. Rousseau and information which is not, it
may be said that in the end, Mr. Rousseau has a right of access to the
information he gave the doctor, and to the final opinion of the doctor in the
form of the report to the insurer. In accordance with Principle 4.9.1. of
Schedule I to the PIPED Act, this enables Mr. Rousseau to correct any mistakes
in the information he gave the doctor or which the doctor noted, as well as any
mistakes in the doctor’s reasoned final opinion about his medical condition.
But the process of getting to that final opinion from the initial personal
information of Mr. Rousseau belongs to the doctor.
[50]
This
Court, in Canada (Information Commissioner) v. Canada (Minister of Citizenship and
Immigration)
(above, at para. 8), has recognized that “the same information can be
“personal” to more than one individual” (at para. 15). It may well be, in the
end, that some information in the notes will be personal to both Mr. Rousseau
and Dr. Wyndowe. A balancing exercise similar to that proposed in our ruling in
Canada (Information Commissioner) would then need to be
performed.
Conclusion and Disposition
[51]
I
therefore reach the conclusion that Mr. Rousseau has the right to access the
portions of the notes taken by Dr. Wyndowe which constitute his personal
information.
[52] I would allow the appeal in
part, set aside in part the decision of the Federal Court, allow in part the
application of Mr. Rousseau and grant Mr. Rousseau access to the notes to the
extent that they constitute his “personal information”.
[53]
I would
return the matter back to the Privacy Commissioner so that she, in consultation
with counsel for Dr. Wyndowe, determines which parts of the notes should be
communicated to Mr. Rousseau.
[54]
No costs
were sought by either party.
“Robert Décary”
“I agree.
M. Nadon
J.A.”
“I agree.
Johanne
Trudel J.A.”
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