Maheu v. IMS Health Canada, 2003 FCT 647

Date: 20030527

Docket: T-1967-01

Neutral citation: 2003 FCT 647

BETWEEN:

                                                               RONALD G. MAHEU

                                                                                                                                                     Applicant

                                                                                 and

                                                         IMS HEALTH CANADA and

                                      THE PRIVACY COMMISSIONER OF CANADA

                                                                                                                                            Respondents

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  The judicial application underlying this motion is by Ronald Maheu, President of Pharma Communications Group Inc. ("Pharma") who wishes review of a complaint, denied by the Privacy Commissioner, involving what he perceives to be a breach of the Personal Information Protection and Electronic Documents Act, 2000, c. 5, by IMS Health Canada Inc. (IMS). IMS and Pharma are competitors in business of collecting and analysing prescription data that providing that information to clients in government and in industry.

[2]                  These reasons arise out of two motions. The Applicant seeks, among other things, answers and documents requested on 5 September 2002 cross-examinations of Dr Roger Korman, who is President of IMS and several subsidiaries. In the event that Dr Korman is required to produce certain documents, the Respondent, IMS, by the second motion seeks a confidentiality order. The second motion has become moot because IMS is not required, by these reasons and the related order, to produce any of the documents sought by the Applicant.

CONSIDERATION

Some Basic Law

[3]                  There is no dispute as to the general test to apply when determining what questions a witness can be required to answer during cross-examination on an affidavit. It was set out by Mr Justice Rothstein, as he then was, in Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1994), 75 F.T.R. 97 at 99 (F.C.T.D.):

[4]                  More recently this passage was quoted and applied by Mr Justice Evans, as he then was, in Zündel v. Canada (Attorney General) (1998), 157 F.T.R. 59 at 62 (F.C.T.D.).

[5]                  The scope of cross-examination on an affidavit is perhaps contentious. Counsel for the Applicant submits that such an examination extends not only to what is set forth in the subject affidavit, but also to lateral questions upon which deponent can fairly be expected to have knowledge, so long as the questions relate to the principle issue in the proceeding upon which the affidavit touches, here referring to Bland v. National Capital Commission, (1989), 29 F.T.R. 232 at 235. However I must also keep in mind that cross-examination on an affidavit in a judicial review matter is narrower than in the case of examination for discovery. Indeed, Mr Justice Richard, he was then, took a very restrictive view of cross-examination on an affidavit in Hoffmann-La Roche Ltd. v. Canada (Minister of National Health and Welfare) (1997), 72 C.P.R. (3d) 362 at 364 (F.C.T.D.):

This concept has been modified to some degree. From time to time judges have set the standard as being a requirement to answer questions on matters set out in affidavits, together with collateral questions arising from the answers of the witness. For example, in Monsanto Canada Inc. v. Novopharm Ltd. (1996), 118 F.T.R. 92 (F.C.T.D.) Mr Justice MacKay quoted a passage from an unreported decision of Madam Justice Reed in Castlemore Marketing Inc. v. Intercontinental Trade and Finance Corporation (1996), 108 F.T.R. 306 (F.C.T.D.), to that effect. Included in that passage was also the proposition that cross-examination on an affidavit was not confined to the four corners of an affidavit (pages 93 and 94 in Monsanto). However Mr Justice Mackay kept cross-examination firmly confined by making certain that the questions were relevant. This leads to the basic principle of cross-examination as set out in Mr Justice Hugessen in Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997), 80 C.P.R. (3d) 550 at 555 (F.C.T.D.):

Here I would emphasize both that a witness being cross-examined on an affidavit cannot be required to inform himself or herself and that the witness can only be required to produce documents over which the witness has custody or control.

[6]                  In Merck Frosst (supra) Mr Justice Hugessen put much emphasis on relevance, being formal relevance and legal relevance, issues defined by affidavits in judicial review, there being no pleading as such. This led to the observation that "... cross-examination of the deponents of an affidavit is limited to those facts sworn to by the deponent and the deponent of any other affidavits filed in the proceeding." (pages 555 and 556). Mr Justice Hugessen then pointed out that cross-examination questions must not only be formally relevant but also legally relevant.

[7]                  In both Merck Frosst (supra), Mr Justice Hugessen, and Unitor ASA v. The Seabreeze I, an unreported 1 May 2001 decision, court file T-1705-00, 2001 FCT 416, Mr Justice Rouleau, went on to look further at relevance in the context of formal relevance and legal relevance. While some of that analysis might well apply to the present instance and indeed I have concerns about the relevance of some of the questions asked and the material sought, the emphasis here was on duty to inform and to produce documents which were not attached to or referred to directly in the Dr Korman's affidavit. By way of example of the documents which appear clearly irrelevant and not more than a fishing expedition for a commercial advantage would be the copy of the contract with Shoppers' Drug Mart and copy of the research product which IMS sells to various pharmaceutical companies.

[8]                  The last general concept I will consider, before turning to the questions in the context of the present motion, is whether a witness may be called upon to inform himself or herself. Counsel for the Applicant relies upon Bland (supra), at page 236 where Mr Justice Martin, discounting the then most recent decision in a line of cases, accepted a trend for broadening the scope of cross-examination on affidavits, including requiring witness to inform themselves, so long as to do so was not unduly oppressive. The decision which Mr Justice Martin rejected was that of Mr Justice Walsh in Laflamme Fourrures (Trois-rivieres) Inc. v. Laflamme Fourrures Inc. (1986), 8 C.P.R. (3d) 315 at 318, where Mr Justice Walsh said:

This view by Mr Justice Walsh is the same as that taken by Mr Justice Hugessen in Merck Frosst (supra). I prefer the view set out by Mr Justice Hugessen, that the person being examined being a witness, it is perfectly acceptable for a witness to refuse to answer a question on the basis of absence of knowledge, for a witness cannot be required to inform himself or herself. Mr Justice Hugessen's decision was upheld by the Court of Appeal (2000), 3 C.P.R. (4^th) 286,but without comment on the scope of cross-examination on an affidavit. Merck Frosst was followed in The Seabreeze I (supra) and again applied by Mr Justice Hugessen in Ward v. Samson Cree Nation No. 444, 2001 FCT 990, [2001] F.C.J. No. 1383 (F.C.T.D.).

[9]                  The result here, that a witness being cross-examined on an affidavit need not seek additional knowledge, might be different if the deponent, instead of being a witness, was an agent, however counsel for the Respondent makes the point that Dr Korman was not an agent, but rather was a witness and that Dr Korman was not asked to admit that he was an agent or a representative of the Respondent. I now turn to the questions for which the Applicant seeks answers.

Answers to Questions

[10]            Counsel for the Respondent submits that no undertakings were given, but rather all the unanswered questions are as a result of refusals. Here I accept exchange between counsel, at page 29 of the transcript of the cross-examination of Dr Korman to be to that effect. Certainly what is referred to as an undertaking, line 23, page 48 is, at best, an attempt to impose an undertaking, a gambit which was not taken up. However, to the contrary, at line 4 on page 52 Dr Korman undertook to confirm that the aggregations referred to in CompuScript went down as far as aggregations by province, with no smaller groups. This is a different question from that posed as page 51, line 9, which asked as to the minimum number of doctors per aggregated group, a question taken under advisement and which I will deal with later. Thus I treat the remaining nine questions, referred to in the list attached as Schedule "A" to Mr Maheu's 21 November 2002 affidavit, as being refusals.

[11]            Question 1, line 4 page 52, involves a clear undertaking to make certain that certain aggregate groups are no smaller than the group contains in a province. That question is to be answered, not because Dr Korman has a duty to search for an answer, but because he agreed to do so, without any demurrer from counsel: that is to be compared with the related question, lines 7 through 16 at page 52, in which counsel specifically did not agree to undertaking to provide anything.

[12]            Question 2, line 23 at page 48 sets out a supposed undertaking that Dr Korman determine whether the aggregation of doctor data in the Promap was in groups of 10 doctors or in groups of 30 doctors. The question came about because on cross-examination on his affidavit Dr Korman answered hypothetical questions based on groups of 30 prescribing doctors, while on the web site of IMS refers to groups of at least 10 physicians. I would refer to a passage from Ward (supra) to the effect that if the deponent of an affidavit, being cross-examined, cannot elucidate upon any of the facts deposed to, that goes to credibility: see paragraph 3 of Ward. Thus the inability of Dr Korman to advise whether the groups are of 10 or more, as suggested in the company web site or of 30 doctors, may be unsatisfactory, that does not mean he must make enquiries, but merely that the hearing judge may have questions as to credibility of a portion of his evidence.

[13]            Questions 3, 4 and 7 are in connection with documents: I will deal with those later. I now turn to question 5, a refusal at page 23, line 10 of the transcript, where Dr Korman was asked as to the geographic areas defined by a product called Xponent. Dr Korman's answer was that he did not have that information available. A witness not having to make enquiries, that is as far as the matter goes.

[14]            Question 6, at page 28, line 21, deals with non-aggregated information about the prescriptions of doctors in Ontario in 1996. Dr Korman did not have that information in hand. As a witness he is not required to go to IMS in search of an answer.

[15]            Question 8 deals with the minimum number of doctors per aggregate group, the question appearing in page 51, line 9. In contrast to the question beginning line 25 of page 51 and ending line 6, page 52, there was no undertaking given. Question 8 deals with a product called Prescriber Rx Data. The witness, Dr Korman, advised that he was not familiar with that particular product. Dr Korman need not make enquiries.

[16]            Question 9, page 53, line 14, contains a request to determine whether MD numbers or ID particulars are included within CompuScript. Dr Korman has answered the question so far as it relates to the identification number of an individual physician. He has also answered the question, relating to MD numbers, by saying that the lowest aggregation as presented in CompuScript are either provinces or whole physician specialties, as in general practitioners. Not only does the question appeared to be answered, but to go farther, would require Dr Korman to inform himself which, as a witness, he cannot be required to do.

[17]            At question 10, page 56, line 23, Dr Korman was asked about defining geographic areas with respect to the Xponent product. Dr Korman said " [to] specifically answer your question would require more information than I have available to me at this moment.". Thus the question pose at page 56, line 23, need not be researched by Dr Korman. I now turn to the documents requested.

Production of Documents

[18]            Counsel referred to question 3, dealing with a copy of the IMS policy as to providing information to professional associations, regulatory bodies, health economists, scientific researchers in universities and elsewhere, public interest groups and the media general. That question begins at page 7, line 9 and commentates at page 8, line 11, with counsel for IMS taking up the issue under advisement which, by reason of the exchange at page 29 is certainly not an undertaking to provide the document. Counsel for Mr Maheu submits that the document is relevant as it goes to business practices and specifically a provision of low-cost or no-cost information. Counsel for IMS referred to Canadian Shipowners Association v. Canada (1996), 124 F.T.R. 81 (F.C.T.D.) in which Prothonotary Morneau said, in response to a request for a draft report and notes:

This view is reflected in Ward (supra) at paragraph 3 where Mr Justice Hugessen said:

Mr Justice Hugessen went on to observe that production of documents, during cross-examination, could only be required if the witness had custody or control of the document in question.

[19]            In the present instance the apparently written IMS policy as to provision of information to various groups was not part of the affidavit of Dr Korman, nor was the policy either referred to or in the possession of Dr Korman.

[20]            Counsel for Mr Maheu does refer several decisions in which witnesses have been compelled, on cross-examination, to produce documents. All of those decisions pre-date Mr Justice Hugessen's decision in Ward (supra). I must also keep in mind that the first of those decisions, Ethicon Inc. v. Cyanamid of Canada Ltd. (1997), 35 C.P.R. (2d) 126 (F.C.T.D.), was under the old Rules. Further, Ethicon certainly pre-dates Ward. Moreover, the editorial note to the case observes that it was interesting that the Court was prepared to entertain an application to permit discovery in a trademarks case. In my view Ethicon has been overtaken by more current case law.

[21]            Bland (supra), upon which the Applicant relies for the proposition that a witness may be ordered to produce documents on cross-examination, deals to the larger extent with a witness informing himself however, among 25 specific orders, two appeared to deal with documents, which were required to be produced as part of the cross-examination on affidavit. It is a bare order which is neither discussed nor borne out in the several pages of reasons.

[22]            Finally, counsel for the Applicant refers to Bank of Scotland v. The Nel, an unreported decision in T-2416-97 of 19 October 1998, [1998] F.C.J. No. 1499. In that decision I referred to Bally-Midway Manufacturing Co. v. M.J.Z. Electronics Ltd. (1984), 75 C.P.R. (2d) 160 for the proposition that a deponent of an affidavit must, on cross-examination, produce documents relating to issues relevant to interlocutory motions, but the cross-examination might not be used in order to obtain all of the documents which might be useful at a full trial. I also observed that The Nel was a special situation, for priorities to ship sale proceeds were often dealt with in a trial setting, in which instance there would be full discovery of documents, rather than in a motion setting, with more limited production. I allowed limited production of documents, for The Nel was a special case, which ought to be limited to similar circumstances. That is not the situation here.

[23]            Dr Korman does set out in his affidavit that "in addition to his commercial clients (which include pharmaceutical companies and governments), I.M.S. has a policy of providing to professional associations, [and other non-commercial groups]... generally at a nominal cost or no cost where possible.". Here I have considered whether this puts the documents requested in some other category, a category which ought to be produced, it being referred to as a written policy, an "IMS Code of Practice". I have concluded that this request for production is governed by principles set out by Mr Justice Hugessen, in Merck Frosst (supra) that it need only be produced if it is in the custody or control of the witness. While Dr Korman may well, among his own documents, have a copy of the Policy, that question was not put to him. Without that information I am not prepared to require production of Policy on the assumption that Dr Korman indeed has a copy of the Policy. It need not be produced.

[24]            At paragraph 4 of his affidavit Dr Korman sets out that "one set of I.M.S.'s information products is based on disclosure by pharmacies, in six provinces, of extracts from their computerized prescribing records.". From this statement counsel for the Applicant went on to establish that IMS paid pharmacies in order to obtain raw data and that this was done pursuant to written contracts. However there is no reference to written contracts in Dr Korman's affidavit. Counsel then went on to ask Dr Korman to provide a copy of a written contract, for Shoppers' Drug Mart. Counsel does not establish whether Dr Korman has such in his possession. Again, on the basis of Merck Frosst (supra), custody or control of the document not being established in Dr Korman, it need not be produced.

[25]            The final request for production, referred to as question 7, is at pages 33 through 36, lines 24 through 12. At this point in the cross-examination counsel for the Applicant referred to the transcript of the cross-examination of some other witness, in some other legal proceeding and from that led into a request that IMS provide, as documents or as computer records, exactly what IMS provided to its customs who purchased Xponent service, including that the material be in the format provided to customers. Again, on the basis that material only need to be produced if the witness has custody or control, which is not established, that material need not be produced.

CONCLUSION

[26]            The outcome of this motion has been decidedly in favour of the Respondent. In that the Applicant requested costs, it is only fair that the Respondent now have its costs, payable at the end of the day.

[27]            In that no documents are to be produced, the motion of IMS, for a confidentiality order, has become moot.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

27 May 2003

                                                  FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTIONS DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-1967-01

STYLE OF CAUSE:                        Ronald G. Maheu v. IMS Health Canada and The Privacy Commissioner of Canada

REASONS FOR ORDER OF:      Hargrave P.

DATED:                                                27 May 2003

WRITTEN REPRESENTATIONS BY:                              

SOLICITORS ON THE RECORD: