Case Report – FCA raises the question of mixed personal information under PIPEDA

16 Feb

On February 1, the Federal Court of Appeal ordered a matter back to the Privacy Commissioner so that she could determine what parts of notes taken by a doctor in the course of providing an independent medical examination were the examination subject’s personal information.

The dispute arose under PIPEDA, and was about access to information in notes taken by a doctor in the course of providing an IME. The most significant part of the decision is the Court’s response to the doctor’s argument that the information in his working notes was not the subject’s personal information. The Court said:

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.

This Court, in Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration) [in a decision under the Access to Information Act], 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.

I believe this is the first time that a court has considered the matter of access to “mixed” personal information under PIPEDA. Mixed personal information is personal information about more than one person, and can be difficult to deal with in an access request. It is often created in the course of investigations where a person who is interviewed gives an opinion or recounts facts about another.

The Court did not mention section 9(1) of PIPEDA, which reads, “Despite clause 4.9 of Schedule 1, an organization shall not give an individual access to personal information if doing so would likely reveal personal information about a third party.” It also mentioned the issue of “work product” information earlier in the award, but did not address whether the doctor’s working notes were likely to speak about him in his professional rather than personal capacity and, hence, be work product rather than personal information. Given these limitations, the award speaks more about things to come than lay down any authority on the meaning of personal information.

Other parts of the award are interesting if not notable. For example, I believe it contains the most detailed discussion by a court about the meaning of “in the course of commercial activity,” the key trigger language for the application of the Act.

Wyndowe v. Rousseau, 2008 FCA 89 (CanLII).

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