Date: 20061222
Docket: A-551-06
Citation: 2006 FCA
422
Present: RICHARD C.J.
BETWEEN:
JEFFREY P. WYNDOWE
(Psychiatric Assessment Services Inc.)
Appellant
(Respondent)
and
JACQUES ROUSSEAU
Respondent
(Applicant)
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
Heard at Ottawa, Ontario, on December
21, 2006.
Order delivered at Ottawa,
Ontario, on December
22, 2006.
REASONS FOR ORDER BY:
RICHARD C.J.
Date: 20061222
Docket: A-551-06
Citation: 2006 FCA 422
Present: RICHARD
C.J.
BETWEEN:
JEFFREY
P. WYNDOWE
(Psychiatric Assessment Services Inc.)
Appellant
(Respondent)
and
JACQUES ROUSSEAU
Respondent
(Applicant)
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
REASONS FOR ORDER
RICHARD C.J.
[1]
This is a motion by the Appellant for a stay
pending disposition of the appeal of the decision of Mr. Justice Teitelbaum
dated October 30, 2005, amended on November 6, 2006, (2006 FC 1312), whereby
the Appellant, Jeffery P. Wyndowe (Dr. Wyndowe) is ordered to provide the
Respondent, Mr. Jacques Rousseau (Mr. Rousseau), access to working notes (the
“Notes”) made by Dr. Wyndowe during his independent medical examination of Mr.
Rousseau.
[2]
The questions of law which the applications
judge was called upon to decide are as follows:
a) Do the Notes
produced by Dr. Wyndowe in the course of the independent medical examination
fall within the definition of “personal information” in the Personal
Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPED
Act)?
b)
If so, do the Notes fall within an exception in
subsection 9(3) of the PIPED Act?
[3]
The applications judge was satisfied that the
Notes constituted personal information within the meaning of the PIPED Act and
did not fall within an exception in subsection 9(3) in that they were not
produced for the purpose of litigation or as part of a formal dispute
resolution process. Accordingly, he ordered the Appellant to provide the
Respondent access to the Notes within 30 days of October 30, 2006.
[4]
The relevant test to be applied to an
application for a stay is set out in RJR-MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311. At the first stage, the applicant must demonstrate a
serious question to be tried; at the second stage, the applicant must
demonstrate that it will suffer irreparable harm if the relief is not granted;
and, the third stage requires an assessment of the balance of convenience.
[5]
The Appellant submits that the applications
judge erred in finding that the Notes made by Dr. Wyndowe during his
independent medical examination of Mr. Rousseau constitute “personal
information” within the meaning of section 2 of the PIPED Act. In the
alternative, the Appellant submits that the applications judge erred in failing
to address Dr. Wyndowe’s argument that, even if the Notes contain information
which constitutes “personal information” within the PIPED Act, the portion of
the Notes which contain remarks, observations, notations, annotations, margin
notes and the like made by Dr. Wyndowe to himself do not constitute “personal information”
of Mr. Rousseau under the PIPED Act, and therefore are not subject to access
under the legislation. Further, the Appellant submits that the order conflicts
with the common law respecting the duty of disclosure of the working notes of a
physician performing an independent medical examination.
Serious
Issue
[6]
In my opinion, the grounds of appeal raised by
the Appellant raise serious questions to be tried and are sufficient for
meeting the threshold for granting a stay.
Irreparable
Harm
[7]
Here, the Appellant argues that the purpose of
the stay pending appeal is to preserve the right of appeal pending
determination of a legal question that will affect those rights.
[8]
In Bisaillon v. Canada, (1999) 251 N.R.
225 (FCA), Létourneau J.A. held that the appeal of an order of the trial judge
would become moot or futile if Revenue Canada obtained the material requested before the appeal was decided on
its merits. Similarly, in Bining v. Canada (2003 FCA 286), Noël J.A.
stayed an order requiring the applicant to disclose information on the ground
that if the interim stay were not granted, the appeal would be rendered moot.
[9]
In this application, the ultimate issue is the
disclosure of the Notes. Accordingly, I find that the Appellant has
established that he will suffer irreparable harm if the Notes are disclosed to
the Respondent prior to the hearing of the appeal.
Balance of
Convenience
[10]
Absent a stay, the Appellant’s right of appeal
will be moot. Mr. Rousseau claims that the balance of convenience favours him because
he has commenced an action against Manulife in the Superior Court of Ontario
with a tentative trial date set in February 2007. However, it is open to his
counsel to seek production of the Notes in that action in accordance with the Ontario Rules of Civil Procedure.
[11]
Therefore,
I find that the Appellant has satisfied the three stage test in RJR-MacDonald.
Accordingly, the motion for a stay of the order of Mr. Justice Teitelbaum dated
October 30, 2005 as amended (2006 FC 1312) will be granted until the final
disposition of the appeal in this Court.
"J.
Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-551-06
MOTION FOR A
STAY PENDING APPEAL OF THE ORDER OF TEITELBAUM, J.A. DATED OCTOBER 30, 2006
STYLE OF CAUSE: Jeffrey
P. Wyndowe (Psychiatric Assessment Services Inc.) v. Jacques Rousseau and The
Privacy Commissioner of Canada
PLACE OF MOTION: Ottawa,
Ontario
DATE OF MOTION: December 21, 2006
ORDER: Richard C.J.
REASONS FOR ORDER: Richard C.J.
DATED: December 22, 2006
APPEARANCES:
|
Mary M. Thomson
John A. Dent
|
FOR THE APPELLANT
|
|
Jacques
Rousseau
|
ON HIS OWN BEHALF
|
SOLICITORS
OF RECORD:
|
McCarthy Tétrault LLP
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Jacques
Rousseau
Toronto, Ontario
|
ON HIS OWN BEHALF
|
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