(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.
Docket: A-551-06
Citation: 2006 FCA 422
Present: RICHARD C.J.
BETWEEN:
(Psychiatric Assessment Services Inc.)
Appellant
(Respondent)
and
JACQUES ROUSSEAU
Respondent
(Applicant)
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
REASONS FOR ORDER
[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.
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
REASONS FOR ORDER: Richard C.J.
APPEARANCES:
|
John A. Dent |
FOR THE APPELLANT
|
|
|
ON HIS OWN BEHALF
|
SOLICITORS OF RECORD:
|
Toronto, Ontario |
FOR THE APPELLANT
|
|
Toronto, Ontario |
ON HIS OWN BEHALF
|