Rousseau v. Wyndowe, 2006 FC 1312

 

 

 

Date: 20061030

Docket: T-711-05

Citation: 2006 FC 1312

OTTAWA, Ontario, October 30, 2006

PRESENT:     The Honourable Mr. Justice Teitelbaum

 

 

BETWEEN:

JACQUES ROUSSEAU

Applicant

and

 

JEFFERY P. WYNDOWE (Psychiatric Assessment Services Inc.) and

THE PRIVACY COMMISSIONER OF CANADA

Respondents

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Mr. Rousseau, the applicant, claimed long-term disability benefits from Maritime Life. In the course of assessing Mr. Rousseau’s ongoing entitlement to benefits, Maritime Life exercised its rights under the insurance contract to arrange for an independent medical examination (IME) of Mr. Rousseau. This examination was done by Dr. Wyndowe, the respondent, for and on behalf of Maritime Life, on December 17, 2003. As a result of the examination, it is my understanding that Maritime Life terminated the payment of benefits to Mr. Rousseau which have now been reinstated after an action was taken by Mr. Rousseau against Maritime Life.

 

[2]               On several occasions in early 2004, Mr. Rousseau sought access to the notes (the “Notes”) made by Dr. Wyndowe during the examination. Dr. Wyndowe has not provided the Notes to Mr. Rousseau because he believes that the Notes are not subject to access under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the PIPED Act).

 

[3]               In February 2004, Mr. Rousseau filed a complaint with the Office of the Privacy Commissioner of Canada. The Assistant Privacy Commissioner issued her report to the parties in letters dated March 17, 2005.  She concluded that the Notes, while not necessarily part of Mr. Rousseau’s medical record, nevertheless contained Mr. Rousseau’s “personal information” as defined in the PIPED Act.  She also found that neither the solicitor-client privilege exception in section 9(3)(a) of the PIPED Act nor the exception for information generated in the course of a formal dispute resolution process in section 9(3)(d) of the PIPED Act applied to the Notes to exempt Dr. Wyndowe from the obligation under the PIPED Act to provide a copy of the Notes to Mr. Rousseau. The report concluded that Mr. Rousseau had a right to access the Notes under the PIPED Act.

 

[4]               Pursuant to section 14 of the PIPED Act, a complainant may, after receiving the Commissioner’s report, apply to the Federal Court for a hearing. Mr. Rousseau applied to the court in a notice of application dated May 12, 2005.

 

[5]               The relevant portion of the Personal Information and Electronic Documents Act states:

 

 

 

[6]               The issues which must be decided are as follows:

1.      Do the notes produced by Dr. Wyndowe in the course of the IME fall within the definition of “personal information” in the PIPED Act?

2.      If so, do the notes fall within an exception in section 9(3) of the PIPED Act?

 

[7]               The applicant submits in his written submissions and in his brief oral submissions that he has the right to access the Notes because they are part of his medical record and because the Notes contain “personal information” within the meaning of the PIPED Act.

 

[8]               The applicant submits that Dr. Wyndowe cannot deny access to the Notes since they do not fall within any of the exceptions laid out in section 9(3) of the PIPED Act. The applicant submits that there is no evidence to support a claim of solicitor-client privilege under section 9(3)(a) nor a claim under section 9(3)(d) for information generated in the course of a formal dispute resolution process.

 

[9]               The Commissioner submits that the decision of the Assistant Privacy Commissioner should be reviewed on the standard of correctness as the question at issue is one of interpretation under the PIPED Act (Morgan v. Alta Flights (Charters Inc.) and the Privacy Commissioner of Canada (2005), 271 F.T.R. 298 (F.C.) [Morgan]).

 

[10]           The Commissioner submits that the PIPED Act applies to the information Dr. Wyndowe collected during the examination. The PIPED Act requires “every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities” provide an individual with access to his or her own personal information (section 4(1) of the PIPED Act and section 4.9.1. of Schedule 1 of the PIPED Act). The PIPED Act applies to information collected in the course of Dr. Wyndowe’s IME of Mr. Rousseau because Dr. Wyndowe is considered an organization under section 2(1) of the PIPED Act; the IME he performed for Maritime Life was a commercial activity; and, the Notes contain “personal information” about Mr. Rousseau.

 

[11]           Dr. Wyndowe admitted that the Notes record “information yielded by the question[s]” he posed to Mr. Rousseau. The Commissioner submits that this indicates that the information in the Notes is “personal information” within the meaning of the PIPED Act. Moreover, the Commissioner submits that the definition of “personal information” in the PIPED Act should be interpreted broadly since the Supreme Court of Canada has referred to the Privacy Act’s definition of personal information as “deliberately broad” (Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, LaForest, dissenting on another point).

 

[12]           The Commissioner submits that the Notes do not fall into any of the exemptions in section 9(3) of the PIPED Act. The Commissioner does not dispute that the exemption of solicitor-client privilege set out in section 9(3)(a) is broad enough to include litigation privilege; however, the Commissioner submits that Dr. Wyndowe has no claim to litigation privilege. The test to show litigation privilege is a two-part test wherein it must be shown that there was a reasonable prospect of litigation at the time of the communication at issue was made and the litigation was the dominant purpose for the creation of such communication (Commercial Union Assurance Co. plc. v. M.T. Fishing Co. (1999), 244 N.R. 397 (F.C.A.) [Commercial Union]).

 

[13]           The Commissioner referred to a number of cases which discuss litigation privilege in situations where insurance companies request IMEs. These cases hold that information collected from the medical examination will not normally be protected by litigation privilege, unless the insurer can demonstrate that the dominant purpose for the request was related to litigation (Lavers v. Weeks Estate (1997), 151 Nfld. & P.E.I.R. 196 (Nfld. S.C.), Halteh et al. v. McCoy (1975), 6 O.R. (2d) 512 (H.C.), Dwyer et al. v. Chu et al. (1980), 29 O.R. (2d) 156 (H.C.)).

 

[14]           The Commissioner refers to even stricter case law which holds that an insurer’s investigation of a claim for benefits under an insurance policy does not attract litigation privilege until litigation is anticipated and therefore reports from an insurance adjuster to the insurer, prior to counsel bring retained, are not subject to litigation privilege (Breau v. Naddy, [1995] P.E.I.J. No. 108 (T.D.)).

 

[15]           The Commissioner submits that until a decision was made to deny a claim, the dominant purpose of an insurer’s communication is for the insurer to consider whether to deny liability (Pound v. Drake (1984), 8 C.C.L.I. 108 (B.C.C.A.), Hamalainen v. Sippola (1991) 62 B.C.L.R. (2d) 254 (C.A.)). Since the Notes were produced before the decision to deny benefits was made, the dominant purpose for the medical examination and, by extension collecting information in the course of the examination, was to gather information to aid in determining whether to deny benefits.

 

[16]           With regards to the section 9(3)(d) exemption claimed by Dr.Wyndowe, the Commissioner submits it is not available since Dr. Wyndowe’s Notes were not produced as part of a dispute resolution process. The Commissioner submits that assessing an insurance claim simply does not amount to a dispute. A dispute involves two parties who differ with one another in respect of some position or claim and at the time of the examination Maritime Life had not yet decided to terminate Mr. Rousseau’s benefits so there was no dispute. The Commissioner submits that the examination was arranged as part of Maritime Life ongoing right to assess and evaluate Mr. Rousseau’s claim for benefits, as authorized in writing by Mr. Rousseau at the time he made his claim.

 

[17]           The Commissioner submits that Dr. Wyndowe has the burden of proof to establish that the notes are exempt because they fall into one of the sub-sections of section 9 of the PIPED Act and that Dr. Wyndowe has failed to bring any evidence for either exception.

 

[18]           Dr. Wyndowe submits that the hearing pursuant to section 14 of the PIPED Act is a hearing de novo and that the applicant would be given a head start were the court to show any deference to the Commissioner’s report (Englader v. Telus Communications Inc. (2004), 247 D.L.R. (4^th) 275 (F.C.A.) [Englader]).

 

[19]           Dr. Wyndowe submits that his Notes fall outside the scope of the PIPED Act. He argues that principles of statutory interpretation suggest that the PIPED Act should be interpreted in a manner which is consistent with the common law and that since no section of the PIPED Act specifically addresses health records it must be presumed that the legislature intended provisions of the PIPED Act to be interpreted in a manner consistent with the common law respecting the right of patients to access their health care records.

 

[20]           The common law right of patients to access their medical records arises from a fiduciary relationship between patient and physician (McInerney v. McInerney (1992), 93 D.L.R. (4^th) 415 (S.C.C.) [McInerney]). Dr. Wyndowe submits that the relationship between himself and Mr. Rousseau was not one of a treating physician and patient and, therefore, no fiduciary duty arose between Dr. Wyndowe and Mr. Rousseau in the sense described in McInerney. Dr. Wyndowe submits that the duty owed by a physician performing an IME to the patient is simply to do no harm to the examinee in the course of the examination (Branco v. Sunnybrook & Women’s College Health Sciences Centre, [2003] O.T.C. 753 (S.C.J.)). Dr. Wyndowe submits that at common law he does not owe any duty to Mr. Rousseau which requires that he provide him with access to the notes and, therefore, the PIPED Act should be interpreted in a way that is consistent with this.

 

[21]           Moreover, Dr. Wyndowe submits that the PIPED Act should be interpreted with reference to the Personal Health Information Protection Act, 2004, S.O. 2004, c.3., (PHIPA), a similar piece of Ontario legislation. In the event that the Federal government declares PHIPA is be substantially similar to the PIPED Act, and it has been so declared, then complaints about the collection, use and disclosure of personal health information in Ontario will be dealt with under PHIPA. Unfortunately, Dr. Wyndowe does not provide a clear argument about which sections of PHIPA should be used in interpreting the PIPED Act.

 

[22]           Finally, Dr. Wyndowe submits that there are important policy reasons to support his position that patients should not have the right to access notes taken in the course of an IME.  A physician’s working notes are rough notes which may include speculative diagnoses and raw data from assessments and tests. Dr. Wyndowe submits that this raw information is of limited utility to the examinee and that its disclosure to the examinee could potentially undermine the integrity of the assessment tools.  Acceptance of this position is evidenced by the fact that the College of Physicians and Surgeons does not support patient access to a physician’s working notes arising from an IME and by that fact the PHIPA exempts health records containing raw data from standardized psychological tests from a patient’s right of access to health records.

 

[23]           If Dr. Wyndowe’s notes are found to be “personal information” within the meaning of the PIPED Act, he submits that the Notes fall under an exception within section 9(3), namely solicitor-client/litigation privilege or the exception relating to dispute resolution, and therefore access to the Notes does not need to be provided.

 

[24]           Dr. Wyndowe submits that the IME of Mr. Rousseau took place in the context of a litigious situation since the examination took place after Maritime Life had already commissioned a Transferable Skills Analysis Report which identified alternative occupations for Mr. Rousseau. This suggests that the IME was not part of the initial investigation but rather was done at a stage of investigation where Maritime Life was already contemplating terminating Mr. Rousseau’s benefits and anticipated litigation arising from the termination.

 

[25]           Dr. Wyndowe presents a number of analogous situations. First, he submits that this dispute is analogous to that of a physician performing a defence medical examination pursuant to section 105 of the Court of Justice Act and Rule 33 of the Ontario Rules of Civil Procedure which provides that the reports prepared by health practitioners must be provided under the rules but the rough notes of the physician need not be provided. Second, he submits that his working notes are analogous to the notes of an expert witness retained during litigation to provide expert evidence.  The working notes and draft reports of the expert witness are confidential and are protected by client-solicitor privilege.

 

[26]           Dr. Wyndowe also submits that his notes are exempt from access because they are protected under section 9(3)(d) of the PIPED Act in that they were generated in the course of a formal dispute resolution process. He submits that while there is no definition of “formal dispute resolution process” in the PIPED Act the need for an IME in the circumstances of this case arise because of a dispute between an insurer and the insured about the insured’s entitlement to benefits. He submits that in Lowe v. Guarantee Co. of North America (2005) 256 D.L.R. (4^th) 518, the Ontario Court of Appeal characterized is as an independent medical.

 

[27]           The Commissioner cited Morgan as authority that the standard of review should be correctness since an issue of interpretation of the PIPED Act was involved; however, in that case Mr. Justice Noël held that under section 14 of the PIPED Act the court exercises its discretion de novo.  There is also Federal Court of Appeal authority that hearings arising from section 14(1) of the PIPED Act are hearings de novo (Englader).  Moreover in Englader at paragraph 48 the Court held that “To show deference to the Commissioner’s report would give a head start to the Commissioner when PIPED Acting as a part and this could compromise the fairness of the hearing.”

 

[28]           Section 2 of the PIPED Act defines “personal information” as “information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.” As noted by the Commissioner, this definition is very broad. It is even broader then “personal information” within the Privacy Act, R.S.C. 1095 c. P-21 which is defined as “information about an identifiable individual that is recorded in any form.”

 

[29]           There is no case law that I was able to find on what the definition of “personal information” in the PIPED Act includes. I was told by counsel that the present case is the first of its kind. It is tempting to refer to the Privacy Act when interpreting provisions in the PIPED Act, as the Commissioner did in her submission when she noted that the Supreme Court of Canada has found that the definition of “personal information” is deliberately broad; however, one should be cautious to do so because the Court of Appeal noted in Englader that courts must be careful in using principles and rules of interpretation developed in the context of the Privacy Act to interpret the PIPED Act because of the dissimilarity between their two “purpose” provisions.

 

[30]           With that caveat in mind, I note that the definition of “personal information” in the Privacy Act includes medical history. Since the definition in the PIPED Act is broader than that in the Privacy Act it is reasonable to interpret the definition in the PIPED Act as broad enough to catch medical history and other medical information. Moreover, there is nothing in the PIPED Act to indicate that the definition of “personal information” may not include information about health.

 

[31]           The PIPED Act contains a definition of “personal information” as well as a definition of “personal health information.” It is unclear what the relationship is between the two definitions. The authors of The Personal Information Protection and Electronic Documents Act: An Annotated Guide[1] note this ambiguity but go on to write that the definition of “personal information” is broad enough to include all sorts of information including medical or health information. The authors argue that the key to the definition of “personal information” within the PIPED Act is that the individual must be identifiable so that truly anonymous information in not “personal information”[2].

 

[32]           I am satisfied that the definition is broad enough to include the kind of information contained in the Notes. The Notes include a wide variety of information which is of an extremely personal nature. Some of it may also be considered to be personal health information but this is not relevant here since the issue is whether the information is “personal information” as defined in the PIPED Act. In my view, the Notes contain “personal information” as defined in the PIPED Act.

 

[33]           Dr. Wyndowe submitted that there exist policy considerations as to why doctors should not have a duty to allow persons to access notes made by doctors in the course of IMEs. However compelling the policy arguments are, the PIPED Act is clear that persons should be given access to their personal information.  The PIPED Act does not lay out any kind of exception for doctor’s notes.

 

[34]           The parties are in agreement that the exception for solicitor-client privilege contained in section 9(3)(a) of the PIPED Act includes litigation privilege. The Supreme Court of Canada recently held in the case Blank v. Canada 2006 SCC 39 that solicitor-client privilege in the Access to Information Act, R.S.C. 1985, c. A-1, was intended to include litigation privilege. Based on this decision, it is reasonable to assume that it does the same in the PIPED Act.

 

[35]           I agree with the Commissioner that the test for litigation privilege is two-fold wherein it must be shown that there was a reasonable prospect of litigation at the time of the communication and that litigation was the dominant purpose for the creation of such communication (Commercial Union).[3] No evidence was adduced by Dr. Wyndowe to suggest that litigation was the dominant purpose for which the medical examination was done. Even if litigation was a purpose for the medical examination, there is no evidence that it was the dominant purpose. In my view, the dominant purpose for the independent medical exam was to determine whether Mr. Rousseau was still entitled to disability benefits.

 

[36]           The parties submitted numerous cases with regard to the issue of whether documents produced during investigations by insurers are subject to litigation privilege. In Moseley v. Spray Lakes (1996), 135 D.L.R. (4^th) 69, the Alberta Court of Appeal held that it is inappropriate to set down rules about whether specific fact situations always or never give rise to litigation privilege. Indeed, some of the cases submitted by the parties involved insurance adjusters’ investigations after serious car accidents. In my view, the facts are significantly different in this case and the case must be decided on its facts. The facts indicate that IMEs are a routine part of an insurance company’s business of doing ongoing assessments of a person’s entitlement to benefits. Dr. Wyndowe has not proved a claim to litigation privilege.

 

[37]           Similarly, Dr. Wyndowe has not made a case for the exception under section 9(3)(d) of the PIPED Act. There is no evidence to suggest that an IME requisitioned by an insurer is an indication of an ongoing dispute resolution process. On the contrary, the documents from Maritime Life suggest that submitting to medical examinations is a part of the insurance contract. The letter from Maritime Life which notified Mr. Rousseau of the decision to terminate his benefits indicated the decision could be appealed. The Assistant Privacy Commissioner in her report was correct in noting that this suggested that it was open to Mr. Rousseau to initiate a formal dispute resolution process by appealing the decision. As noted by the Assistant Privacy Commissioner, this process could only begin after the IME.

 

[38]           I am satisfied Dr. Wyndowe’s Notes constitute “personal information” within the meaning of the PIPED Act. The notes were not produced for the dominant purpose of litigation nor were they produced in the context of a formal dispute resolution process. The court orders Dr. Wyndowe to provide Mr. Rousseau access to the notes and this within 15 days of the date of this decision.

 

 

 

JUDGMENT

 

            The application is allowed. The Respondent, Dr. Wyndowe shall provide the Applicant access to the “Notes” within 15 days of today’s date.

 

            No costs are awarded to any of the parties. The Applicant was, at least at the beginning of the case, a self-represented litigant. The Respondents did not ask for costs.

 

 

 

“Max M. Teitelbaum”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET:                                          T-711-05

 

STYLE OF CAUSE:                          Jacques Rousseau v.     Jeffrey P. Wyndowe

(Psychiatric Assessment Services Inc.) and The Privacy Commissioner of Canada

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      October 26, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          TEITELBAUM J.

 

DATED:                                             October 30, 2006

 

APPEARANCES:

 

Morris Cooper                                                             For the Applicant

 

Mary Thomson                                                             For the Respondent

John Dent                                                                     Jeffrey P. Wyndowe

(Pychiatric Assesment Services Inc.)

 

Steven Welchner                                                          For the Respondent

Nathalie Daigle                                                             The Privacy Commissioner of Canada

 

SOLICITORS OF RECORD:

 

Morris Cooper                                                              For the Applicant

Barrister

Toronto, Ontario

 

McCarthy Tétrault LLP                                                For the Respondent

Barristers and Solicitors                                                Jeffrey P. Wyndowe

Toronto, Ontario                                                          (Psychiatric Assessment Services Inc.)

 

 

Welchner Law Office                                                    For the Respondent

Ottawa, Ontario                                                           The Privacy Commissioner of Canada