On September 12, the Alberta Court of Queen’s bench issued a decision in which it held that the Alberta Health Information Act may apply to information about individuals other than those who receive a health service that is collected when a health service is provided to an individual.
The case involves an FOI request filed by the daughter of two residents of a health facility. The daughter sought records of her personal information in the custody of the facility after it imposed conditions on her visitation privileges. The facility denied access to a number of records on the basis that references in the records to the daughter constituted the health information of her parents. The Court agreed, and said the following:
These hypotheticals suggest that “other information about an individual that is collected when a health service is provided to the individual” includes, at the very least, information about the mental or physical health of others that relates to the physical and mental health of an individual or a health service provided to an individual and is collected when a health service is provided to an individual. It may affect the diagnosis or the health service provided to the patient.
Using this standard to determine whether any of the information in the records of Covenant Health about Ms. McHarg is classified as health information under the Health Information Act, the adjudicator must ask two questions. First, is there any information in Covenant Health’s records about Ms. McHarg that relates to or may directly affect the physical and mental health of Ms. McHarg’s parents or a health service provided by Covenant Health to Ms. McHarg’s parents? Second, if so, was this information collected when Covenant Health provided a health service to her parents?
The Court also addressed two issues pertaining to the application of exemptions under the Alberta Freedom of Information and Protection of Privacy Act. It found in favour of the facility on all issues and quashed the OIPC’s disclosure order.
Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562 (CanLII).
On June 9, Arbitrator Marcotte dismissed an employer grievance that alleged a breach of confidence by its union.
In preparing for a discipline grievance that related to service provided to a client of the employer, a union business agent contacted the client for information. The employer grieved, claiming both a violation of the collective agreement and PIPEDA. The collective agreement did not contain an express confidentiality clause. The employer relied on a number of other collective agreement provisions to support an “implied right” and ground arbitral jurisdiction, including a purpose clause that called for “orderly and harmonious relations.”
Arbitrator Marcotte held that the employer was not alleging the breach of a right granted by the collective agreement. He also held that PIPEDA does not apply.
Recall Canada and Teamsters, Local 938 (9 June 2014, Marcotte).
There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.
On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.
Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.
The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.
Look for an appeal on this very principled and important issue.
Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).
On July 14th, the Supreme Court of British Columbia dismissed a privacy breach claim against a public body as being within the exclusive jurisdiction of the Office of the Information and Privacy Commissioner for British Columbia.
The plaintiff sued the ICBC and others for wrongs arising out of the collection and use of his personal information. He framed his action in a number of valid legal bases including breach of contract and breach of confidence. The claim referred to duties under the British Columbia Freedom of Information and Protection of Privacy Act; the plaintiff said these references were simply recitations of “material facts.”
The Court found that significant parts of the claim (in their essence) addressed subject matter governed exclusively by FIPPA and its complaint resolution process. It said:
In summary, I conclude that FIPA is an exhaustive legislative scheme for the investigation and adjudication (subject to judicial review) of complaints related to the collection, use and disclosure of personal information in this province. Investigations of complaints about how a public body such as ICBC has collected, used or disclosed personal information are prescribed in FIPA. I am unable to find a role for the civil courts in these matters (except for judicial review).
This issue has been litigated in Ontario. For a case in which the Ontario Superior Court of Justice struck a claim based solely on a breach of MFIPPA, see Sampogna v Smithies. For a more recent case in which the Ontario Superior Court of Justice allowed a privacy breach claim to proceed against an health information custodian and others despite an argument that the Ontario Personal Health Information Protection Act covered the field, see Hopkins v Kay. Hopkins has been appealed to the Court of Appeal for Ontario.
Cook v The Insurance Corporation of British Columbia, 2014 BCSC 1289.