AHS v Cardinal, 2021 ABQB 678

Court of Queen’s Bench of Alberta Citation: AHS v Cardinal, 2021 ABQB 678 Date: 20210825 Docket: 2003 13783 Registry: Edmonton Between: Alberta Health Services Applicant - and - Preston Cardinal and Information and Privacy Commissioner of Alberta Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S.

Leonard _______________________________________________________ [ 1 ] This is an application by Alberta Health Services (“AHS”) for judicial review of a decision of an Adjudicator (the “Adjudicator”) of the Office of the Information and Privacy Commissioner of Alberta (the “OIPC”), dated July 24 2020. [ 2 ] The Respondent, Preston Cardinal, made a correction request for AHS to remove information recorded in his health records. He asked that the following be removed: a.

The italicized part of this statement contained in a record of a visit to a community hospital in Lac La Biche: “Supposedly was hit by a vehicle ( whilst pointing a gun @ them )”; and b. Two references to a gun from records of his visit to the University of Alberta Hospital Emergency Department (collectively, the “Statements”). [ 3 ] The correction request was refused. Mr. Cardinal submitted a complaint to the OIPC. In addition to the correction request, Mr. Cardinal also argued that collection of the Statements was not in compliance with the provisions of the Health Information Act , RSA c.

H-5 (the “ Act” ). [ 4 ] The OIPC agreed to hold an inquiry that resulted in Order H2020-05 (the “ Decision” ). The inquiry Adjudicator considered five separate issues, only one of which is at issue in this judicial review. The Adjudicator ordered as follows: I order AHS to determine whether there is any likelihood that the statements at issue could be accessed and then used or disclosed in the

future. If it determines that there is any possibility that the information could be used again, then AHS should take steps to ensure that the information is not accessible, or to amend it to warn future users that the information may not be sufficiently reliable for use or disclosure unless reasonable steps are first taken to ensure its accuracy. (the “ Order ”) [ 5 ] It is this Order that is the subject of the judicial review. For the reasons that follow, AHS’s application for judicial review is dismissed. Background [ 6 ] The Adjudicator summarized the events leading up to Mr.

Cardinal’s request for a correction as follows: The Applicant called 911 in his community. When EMS arrived, the Applicant told them that his neighbours had run over his legs with their car. He then crawled to his trailer and dialed 911. EMS found the Applicant to have an open tibia/fibula fracture. The EMS documented the Applicant’s account and his injuries in a report, which the Applicant submitted for the inquiry. EMS took the Applicant to the emergency room at the local hospital. The physician at the local hospital wrote “supposedly hit by a car (whilst pointing a gun at them)” in her notes.

This physician apparently has no recollection as to who made this reference initially, but believes it to be either EMS or the RCMP. This physician did not provide evidence for the inquiry; however, AHS referred to statements she made in its submissions as to indicating that the source was either EMS or the RCMP. The Applicant was transported to the emergency room at the University of Alberta Hospital, which is more than 200 km away from his community. A note was made in the Applicant’s chart regarding a gun.

In a statement made for this inquiry, the physician indicated that this note was written after speaking with the EMS employees who brought the Applicant to the University of Alberta Hospital Emergency Department. The Applicant requested deletion of both notes on the basis that they are not true. Legislative Provisions [ 7 ] The purposes of the Act are contained in

section 2, and include the following: 2 The purposes of this Act are (

a) to establish strong and effective mechanisms to protect the privacy of individuals with respect to their health information and to protect the confidentiality of that information, (

b) to enable health information to be shared and accessed, where appropriate, to provide health services and to manage the health system, (

c) to prescribe rules for the collection, use and disclosure of health information, which are to be carried out in the most limited manner and with the highest degree of anonymity that is possible in the circumstances, (

d) to provide individuals with a right of access to health information about themselves, subject to limited and specific exceptions as set out in this Act, (

e) to provide individuals with a right to request correction or amendment of health information about themselves, (

f) to establish strong and effective remedies for contraventions of this Act, and (

g) to provide for independent reviews of decisions made by custodians under this Act and the resolution of complaints under this Act. [ 8 ]

Section 13 provides a framework for requests for correction. 13

(1) An individual who believes there is an error or omission in the individual’s health information may in writing request the custodian that has the information in its custody or under its control to correct or amend the information . . .

(6) A custodian may refuse to make a correction or amendment that has been requested in respect of (

a) a professional opinion or observation made by a health services provider about the applicant, or (

b) a record that was not originally created by that custodian. [ 9 ]

Section 61 provides that a custodian has a duty to take reasonable efforts to ensure information is accurate before it is used or disclosed.

Section 61 provides as follows: 61 Before using or disclosing health information that is in its custody or under its control, a custodian must make a reasonable effort to ensure that the information is accurate and complete. [ 10 ] Section 77(1) provides that the Commissioner, in this case the Adjudicator, “. . . may decide all questions of fact and law

arising in the course of the inquiry.” [ 11 ]

Section 80 enumerates the powers of a Commissioner (in this case, the Adjudicator) in an inquiry.

Section 80 provides as follows: 80(1) On completing an inquiry under

section 77 , the Commissioner must dispose of the issues by making an order under this

section . . .

(3) If the inquiry relates to any other matter, the Commissioner may, by order, do one or more of the following : . . . (

d) confirm a decision not to correct or amend health information or specify how health information is to be corrected or amended . . . Decision of the Adjudicator [ 12 ] The Adjudicator made several findings that are not being challenged but are nonetheless relevant to the issues before the Court. She found that the collection and use of Mr. Cardinal’s information, including the Statements, complied with the provisions of the Act . She also found that the use of the Statements in an emergency setting complied with

section 61 of the Act . [ 13 ]

Section 61 requires a custodian to make reasonable efforts to ensure information is accurate and complete before it is used. She acknowledged that in the emergency setting, a “health services provider may have to record and make decisions based on the information provided, without knowing whether it is true” ( Decision at para. 30). The Adjudicator interpreted

section 61 as “requiring information to be accurate and complete enough for the purpose for which it will be used or disclosed” ( Decision at para. 31). [ 14 ] The Adjudicator acknowledged the need to protect the integrity of health records, noting that the correction process “is one in which it may be as important to preserve the errors in medical reporting as it is to ensure information is accurate” ( Decision at para. 46).

Thus, not all requests for amendment or correction will be granted. [ 15 ] The Adjudicator interpreted the correction process as being “directed to the future use to which health information may be put, rather than to correct past mistakes” ( Decision at para. 47). She illustrated this through the use of an example where a patient’s left arm is treated rather that the intended right arm. The record cannot be corrected to indicate that the right arm was treated because to do so would obliterate evidence of the error.

However, if the record was used to provide future care, a correction or amendment would be required to ensure compliance with

section 61 ( Decision at para. 48). [ 16 ] Cognizant of the need to balance the integrity of records against the possibility of records being used in the future to provide care, the Adjudicator concluded: ...where it is foreseeable that the information may be used in the provision of treatment, and there is an error, omission, or inaccuracy in the records that could affect treatment given if a custodian relies on it... then the custodian should correct or amend the information or take steps to ensure that it is sufficiently accurate for the purposes for which it foresees the records could be used. ( Decision at para. 51) [ 17 ] With respect to Mr.

Cardinal’s circumstances, the Adjudicator noted that, “AHS does not know whether the information it recorded accurately reflects the Applicant’s activities at the time he received his injuries” ( Decision at para. 63). The Adjudicator therefore concluded that if the Statements are used in the future provision of health services, their use may not meet the requirements of

section 61. [ 18 ] The Adjudicator acknowledged that she did not have authority to order the destruction of the Statements, given that they were collected in compliance with the Act . However, having found that future use of the Statements would not comply with

section 61 of the Act , the Adjudicator then considered whether AHS properly refused to correct or amend Mr. Cardinal’s information. [ 19 ] With respect to the request that the Statements be corrected or amended, the Adjudicator concluded “that if there is any likelihood that the information could be used again when future health services are being provided, the information should either be corrected or amended to reflect that the original source of the information is unknown...” ( Decision at para. 73). Position of the parties AHS [ 20 ] AHS argues that the Adjudicator did not apply prior

interpretations of

section 13 of the Act .

According to AHS, section 13(6) “specifically addresses the circumstances in which a custodian... may refuse to make a correction or amendment...” Instead of applying this section, the Adjudicator “read obligations into the HIA for custodians,” requiring that they consider “specific factors when evaluating a request for correction or amendment.” In so doing, the Adjudicator did not indicate whether these factors replaced section 13(6), how they interact with this provision, or how a custodian would evaluate a request using these factors [ 21 ] AHS also argues that it was unreasonable for the Adjudicator to order AHS to either make the information inaccessible or add a warning to future users that that the information is not sufficiently reliable for use is unreasonable.

The focus on the truthfulness of the information is misplaced and misconstrues the purpose for which the information is recorded. AHS contends that if the information is

accurately recorded by a health care provider, it should be permitted for future use. This approach is consistent with the provisions of the Act and aligns with the provisions that allow a custodian to refuse to make a correction or amendment. [ 22 ] Finally, the position of AHS is that the Adjudicator exceeded her authority under section 80(3) of the Act by creating a test for correction or amendment requests. Her approach was a departure from existing authorities regarding

section 13 and places an unreasonable burden on AHS to assess whether the information might be used in the future and also investigate to assess its accuracy. Mr. Cardinal [ 23 ] Mr. Cardinal’s position is the Adjudicator balanced the necessity of ensuring the accuracy of information against the need to preserve the integrity of health records. The adjudicator considered section 13(6) and concluded that the information at issue in this case did not constitute the type of opinion contemplated by that section.

As such, section 13(6) did not apply to the circumstances of this case. [ 24 ] The Adjudicator considered the harm that could come to Mr. Cardinal if the Statements were used in his future care and considered the requirement in

section 61 that a custodian “must make a reasonable effort to ensure the information is accurate and complete.” The Adjudicator’s Order was reasonable and within the scope of the authorities granted to her in

section 80 of the Act . The OIPC [ 25 ] The OIPC’s position is that section 13(6) of the Act did not apply to the circumstances of this case because the Statements were neither a professional opinion or observation, nor did they come from a record that was created by AHS. The Adjudicator’s Order reflects a reasonable

interpretation of

section 13, the purposes of the Act , the duty on custodians to ensure information is accurate and complete, and the powers of an Adjudicator contained at section 80(3) of the Act . Preliminary Issue [ 26 ] At the outset of the oral hearing, the OIPC sought leave to make submissions on the merits of the judicial review. I heard from the parties and granted the OIPC standing with reasons to follow. These are those reasons. [ 27 ] Mr. Cardinal agreed that the OIPC should be granted standing because of its expertise in the subject area. AHS was opposed to the application on the basis that Mr.

Cardinal was represented by counsel and was more than able to make fulsome arguments on the issues. AHS’s position was that the OIPC’s role should be limited to addressing the applicable standard of review and the relevant provisions of the Act . [ 28 ] The OIPC is the regulator of information and privacy rights in Alberta.

In the context of the Personal Information Protection Act (“ PIPA ”), the Court of Appeal has previously held that the OIPC has “a wide-ranging responsibility to implement [ PIPA ] , to develop privacy policy, to educate, investigate and adjudicate upon complaints:” Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 at para. 30 [ 29 ] The OIPC argues that its role with respect to the Act is similar to its role with respect to PIPA .

In Leon’s Furniture , the Court found that the OIPC is “very close to being a true party.” I find that the same holds true in this case. [ 30 ] The “permissible role of a tribunal in a ... proceeding is in the discretion of the court, and depends on the ... context:” Leon’s Furniture at para. 26.

A Court must “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality:” Ontario (Energy Board) v Ontario Power Generation Inc ., 2015 SCC 44 at para. 57 (“ OEB ”). [ 31 ] The need for a discretionary approach was explained by the Supreme Court of Canada in OEB : Several considerations argue in favour of a discretionary approach. Notably, because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.

For example, a tribunal may be able to explain how one

interpretation of a statutory provision might impact other provisions within the regulatory scheme, or the factual and legal realities of the specialized field in which they work. Submissions of this type may be harder for other parties to present. [ 32 ] Each case that comes before the OIPC for inquiry turns on its own facts and merits. I have no concerns about the OIPC’s ability to remain impartial in future applications that come before it. Based on the circumstances of this application, I am prepared to allow the Commission some latitude in the submissions it can make on the merits of this application, and in particular with respect to the

interpretation of the statutory provisions contained in the Act .

Standard of review [ 33 ] The parties agree that the Adjudicator’s decision is reviewable on the standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para. 16-17 (“ Vavilov ”). [ 34 ] A reviewing Court must consider whether “the decision as a whole is reasonable.” The decision must be “internally coherent,” follow a “rational chain of analysis” and be “justified in relation to the facts and law that constrain the decision maker:” Vavilov at para. 85 . [ 35 ] A reviewing Court must take a “reasons first” approach.

This requires the Court to examine the reasons of the decision maker

and seek “to understand the reasoning process:” Vavilov at para. 84 . [ 36 ] In this case, AHS has the burden of showing that the decision of the Adjudicator is unreasonable: Vavilov at para. 100 . This burden will be met where: ...the reviewing court [is] satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.

It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable: Vavilov at para. 100 . Issues [ 37 ] The following issues are raised by this application: 1) Was the Adjudicator’s

interpretation of

section 13 of the Act unreasonable? 2) Was the approach used by the Adjudicator to determine whether AHS should be required to amend or correction the Statements reasonable? Analysis 1) Was the Adjudicator’s

interpretation of

section 13 of the Act unreasonable? [ 38 ] This judicial review turns on whether the Adjudicator made a finding that section 13(6) of the Act does not apply to the circumstances of this case. If Statements are not a professional opinion or an observation made by a health services provider, then section 13(6) does not apply and many of the arguments raised by AHS fail. [ 39 ] AHS contends that the Statements are a professional opinion or observation made by a health services provider pursuant to section 13(6) of the Act .

AHS argues that the Adjudicator did not make a finding to the contrary and that if the Adjudicator indeed found that the Statements were not an opinion or professional observation made by a health services provider, then the Adjudicator should have expressly stated this. Her failure to do so renders the decision unreasonable. [ 40 ] On the basis that section 13(6) applies, AHS argues that it was unreasonable for the Adjudicator to conclude that the Act contains no criteria as to when health information should be corrected. AHS argues that prior

interpretations of section 13(6) of the Act have held that professional observations can include information that is heard by a health care provider from a patient or someone other than a patient. [ 41 ] Mr. Cardinal contends that the only reasonable

interpretation of the Adjudicator’s decision is that section 13(6) does not apply to the circumstances of this case because the Statements were not a professional opinion or observation made by a health services provider. The OIPC’s position is that the Statements in this case are neither professional opinions nor observations by a health services provider: they are not the opinions or observations of the physicians that authored them. [ 42 ] If section 13(6) does not apply, the inquiry turns to whether the Adjudicator’s analysis in the context of the Act , as a whole, is reasonable.

The OIPC argues that the Adjudicator’s analysis flows logically from this finding and reflects the purposes of the Act , the duty to ensure that information is accurate and complete, and the scope of the Commissioner’s authority to issue orders specifying how health information is to be corrected or amended. [ 43 ] The Adjudicator’s characterization of the Statements sought to be corrected or removed is an important first step in the analysis. Section 13(6)(

a) allows a custodian to refuse to make a correction or amendment in respect of “a professional opinion or observation made by a health services provider.” The Adjudicator’s analysis was therefore dependent on her characterization of the information that was being sought to be removed. [ 44 ] The Adjudicator found that the source of the Statements was unknown. The physician at the community hospital did not recall the original source of the information ( Decision at para. 21). The University of Alberta physician recalled hearing the EMTs make the statement ( Decision at para. 21).

In its submissions, AHS described the Statements as having come from either the RCMP or EMS ( Decision at paras. 52-58). The uncertainty regarding the Statements was captured by the Adjudicator at para. 63 of her decision where she said: ...[it] is unclear whose view of events is being recorded and questioned in the statement. Is the term “supposedly” being used to cast doubt on an account given by the RCMP, the MTs, or the Applicant? Who are the “they” in the statement?

Does the person who offered the account that is the subject of the statement have first-hand or second-hand knowledge of what happened, or any knowledge at all? Who provided that statement in the first place? Does the statement accurately record what was originally said, or does it record what someone thought was said? [ 45 ] Because the source was unknown, it was not clear whether the information was recorded as a fact or opinion. The Adjudicator

said at para. 61: AHS’s submissions are also unclear as to whether the information at issue was intended to record facts, or to record an opinion. If it was an opinion, it is unknown how or why the opinion was formed or whose it was. [ 46 ] I agree that the Adjudicator’s subsequent analysis makes it clear that she was of the view that the Statements were not a professional observation as contemplated in section 13(6). As such, section 13(6) does not apply. [ 47 ] The Adjudicator first reviewed the provisions of

section 13 and concluded that the Act does not contain criteria as to when health information should be corrected or amended. She said the following at para. 37 of her decision: The HIA creates a right to request correction or amendment of health information. It also creates a duty in a custodian to make a decision and respond to the correction request within a specified time period.

However, the HIA contains no criteria as to when health information should be corrected and it contains no requirement that a custodian correct or amend health information, even if health information is demonstrated to be inaccurate or incomplete. [ 48 ] She then compared the Act to the corresponding Ontario legislation. She noted that whereas the Act does not contain criteria as to when health information should be corrected or amended, the Ontario legislation does.

She noted that the Ontario legislation “explains the circumstances in which health information must be corrected and what an applicant must do in order to require the custodian to make a correction.” ( Decision at para. 38) [ 49 ] The Adjudicator went on to consider the decision in Order H2005-006 (“ Osinchuk ”) , where Commissioner Work noted that, “opinions may be corrected or amended under the HIA ” ( Decision at para. 44). In Osinchuk , the applicant sought to have Dr. Osinchuk correct or amend health information contained in his notes. Dr.

Osinchuk explained that the information contained in his notes was from the Applicant’s patient visits to his office and consisted of his opinions and observations of those visits. [ 50 ] Commissioner Work gave examples of opinions and observations noting: …the physician’s notations of “paranoid” and “personality disorder” were professional opinions and the physician’s notation of “unable to get along with people” was a professional opinion or observation that the physician could refuse to correct.” Section 13(6)(

a) of HIA allows a custodian to refuse to correct or amend a professional opinion or observation, but a custodian is not prohibited from making such a correction or amendment… [ 51 ] Having reviewed the decision in Osinchuk , the Adjudicator then concluded as follows: In the foregoing order, former Commissioner Work found that a custodian will properly exercise discretion to refuse to correct a professional medical opinion.

However, he left it open that other kinds of opinions contained in health records may be the subject of correction or amendment . [emphasis added] [ 52 ] Implicit in this statement is the Adjudicator’s finding that the Statements are not professional opinions or observations of a health service provider. [ 53 ] AHS argues the Adjudicator failed to consider prior

interpretations of

section 13 with respect to what constitutes a professional opinion or observation of a health services provider. AHS points to the decision in Osinchuk and argues that the Adjudicator failed to apply the definition of an observation in the context of section 13(6). Osinchuk held that an observation was “a comment based on something someone has seen, heard or noticed.” Further, subsequent decisions of the OIPC have held that an observation can include information provided by an applicant or someone else about events in the community. [ 54 ] I reject the argument that the Adjudicator failed to consider prior

interpretations of section 13(6). It is evident that the Adjudicator considered Osinchuk but distinguished it from the facts of this case. The information at issue in Osinchuk was factually different from the Statements being dealt with by the Adjudicator in this matter. Whereas Dr.

Osinchuk was able to describe the source of the information in his patient notes, nothing is known about the source of the Statements in this case, whether they are an opinion or an observation, and who’s opinion or observation they might be. [ 55 ] Further, as explained in Osinchuk , for section 13(6) to apply, the observation must be an observation “of a health services provider.” In this case, it is not known whether the observation was made by EMS or the RCMP.

Section 13(6) would not apply if the observations were made by the RCMP. [ 56 ] The Adjudicator found that the Statements are not a professional opinion or observation. As such, section 13(6) did not apply. This was a reasonable conclusion that was available to the Adjudicator. 2) Was the approach used by the Adjudicator to determine whether AHS should be required to amend or correction the Statements reasonable? [ 57 ] Having found that section 13(6) does not apply and having concluded that

section 13 does not articulate a procedure to be followed when a request is made to amend health information that is something other than a professional opinion or observation of a medical services provider, the Adjudicator considered the Act more broadly to determine whether an applicant could nonetheless obtain a correction or amendment. [ 58 ] The Adjudicator reviewed the provisions of sections 2 and 61 of the Act and concluded that “the right to request correction may be seen, in part, as supporting

section 61, as it allows applicants to request that custodians make reasonable efforts to ensure that health information that could be used or disclosed in the future is reasonably accurate and complete” ( Decision at para. 47).

[ 59 ] The Adjudicator was concerned that if “the information were to be used in the future to provide medical treatment, then it could potentially have a negative effect on the way medical services are provided to the Applicant” ( Decision at para. 65). [ 60 ] She therefore concluded that the following questions should be asked when evaluating a request for correction or amendment: 1. Is the information likely to be used in the future?

For example, is the information located in a paper record to which no one has access, or is the information part of an electronic health record accessible by many health service providers? 2. If it is likely that the information will be used or disclosed in the future, for what purpose is the information likely to be used or disclosed? For example, could the information be used to provide medical treatment in the future? 3. Is the information sufficiently accurate and complete to be reasonably used for those purposes?

For example, could the information in question as it is written have a negative effect on treatment in the future or result in unfairness? [ 61 ] AHS objects to this approach and raises a number of arguments upon which to find that the Adjudicator’s decision is unreasonable. As set out below, I am not satisfied that these arguments disclose any shortcomings in the decision nor do they reveal fatal flaws in the decision’s overarching logic.

a) Do the evaluative questions proposed by the Adjudicator exceed her jurisdiction? [ 62 ] AHS asserts that the Adjudicator created a “Future Use Test.” AHS argues this was unreasonable because it exceeded the Adjudicator’s jurisdiction and was not consistent with the principles of statutory

interpretation. AHS contends that the effect of the Order is that when faced with a correction request, a custodian will have to make the correction, make the information inaccessible, or add a notation that the health information is not sufficiently reliable for use and disclosure. This places an unreasonable burden on AHS and will require it to engage in an investigatory process to validate the information contained in health records. [ 63 ] Mr. Cardinal contends that the Adjudicator’s Order applies the Act to provide reasonable protection to Mr.

Cardinal from any prejudice that may result from the apparent error in the information. Mr. Cardinal further asserts that the Order does not purport to apply to any application outside the specific facts of this case. It does not set out a mechanical formula to be applied in all future cases and it does not change existing law with respect to the application of the Act .

The OIPC’s position is that the Adjudicator was empowered pursuant to section 80(3) to determine “how” the health information should be corrected or amended. [ 64 ] I agree that the Adjudicator’s approach strikes a balance between the requirement that records be preserved, the right of an individual to request a correction or amendment, and the duty to ensure that information is accurate and complete.

b) Does the Adjudicator’s approach encroach upon the record custodian’s discretion? [ 65 ] AHS argues that the Adjudicator’s approach removes “the ability of a custodian to refuse to make a request for correction where that request relates to a professional opinion or observation.” [ 66 ] I find that there is nothing in the Adjudicator’s decision that suggests this is the case. To the contrary, the Adjudicator’s approach in this case arose from the fact that the Statements were not a professional opinion or observation and the Act did not provide a remedy.

c) Did the Adjudicator improperly create criteria as to when health information should be corrected? [ 67 ] AHS argues that it was “unreasonable for the Adjudicator to read in requirements with respect to” the correction or amendment of health information. AHS also contends that the Adjudicator was not empowered to “read in the criteria as to when health information should be corrected.” [ 68 ] I find that section 80(3)(

d) of the Act provides a complete answer to these concerns by granting an inquiry adjudicator the power to “specify how health information is to be corrected or amended.”

d) Is the Adjudicator’s approach contrary to the legislative intent? [ 69 ] AHS argues that the absence of a provision in the Act dealing with the criteria as to when health information can be corrected should be interpreted as a specific legislative choice not to include such a provision. [ 70 ] I find that this argument fails to consider the other relevant provisions of the Act . Section 77(1) provides that an inquiry Commissioner may “decide all questions of fact and law arising in the course of the inquiry.” Further, section 80(1) provides that a Commissioner “must dispose of the issues by making an order under this section” Section 80(3)(

d) then provides that an inquiry Commissioner may “specify how health information is to be corrected or amended.” When the Act is considered as a whole, it is clear that the Adjudicator acted within her authority.

e) Does the Adjudicator’s approach require information to be deleted? [ 71 ] AHS asserts that the Adjudicator’s requirement that the information be made inaccessible “results, effectively, in the deletion of the information.” [ 72 ] AHS’s

interpretation of the Adjudicator’s approach is not correct. The Adjudicator did not order that the information be deleted. AHS has led no evidence to suggest that in order to make information inaccessible, it must be deleted. Further, the Order clearly states that AHS must consider whether there is any likelihood that the information could be used again in the future. If so, then the

information can be either made inaccessible or amended to reflect that the original source of the information is unknown. AHS is given a choice as to how best to proceed so as to ensure that Mr. Cardinal is not prejudiced by future use of the information.

f) Does the Adjudicator’s approach place an unreasonable burden on AHS? [ 73 ] AHS argues that it is impossible for it to determine what information may be used in the future. Requiring AHS to undergo this speculative analysis is not reasonable. In oral argument, AHS acknowledged that the information would be used in the future. [ 74 ] If this concession is accepted, then the next step is for AHS to either make the information inaccessible or add a notation to reflect that the information is unknown.

There is no evidence that these options place an unreasonable burden on AHS. [ 75 ] AHS further argues that the requirement that the information be “sufficiently accurate” is vague and that there is nothing that explains what constitutes “reasonable steps.” AHS will have to expend resources and engage in an investigatory process to validate the accuracy of information. [ 76 ] I find that while these may be legitimate concerns, the practical reality is that

section 61 of the Act places a duty on the custodian to “make a reasonable effort to ensure that the information is accurate and complete.” The Adjudicator’s Order that AHS consider whether the information is sufficiently accurate and complete to be reasonably used in the future is consistent with

section 61. In crafting the Order, it was reasonable for the Adjudicator to rely on this

section of the act. The Order places no greater burden on AHS than that already existed by virtue of the provisions of the Act . Conclusion [ 77 ] The Adjudicator found that section 13(6) of the Act did not apply to the information at issue in this case because the information was not a professional opinion or an observation of a health services provider.

Section 13 does not contemplate a circumstance where an amendment request or correction is made in respect of information that does not come within section 13(6). Because

section 13 did not address the issue before her, she considered the purpose of the Act , the duty to ensure information is accurate, and the scope the powers of the Commissioner under

section 80. The approach she adopted in this case to address information that does not fit within the scope of section 13(6) was reasonable and consistent with the provisions of the Act . [ 78 ] Read holistically and contextually, the Adjudicator’s decision demonstrates a rational chain of analysis. The conclusions reached are within the range of possible outcomes that were reasonably available. AHS has not met the burden of demonstrating that the Adjudicator’s decision was unreasonable. [ 79 ] AHS’s application for judicial review is dismissed. Heard on the 21 st day of May, 2021.

Dated at Edmonton, Alberta this 25 th day of August, 2021. S. Leonard J.C.Q.B.A. Appearances: Sarah Louw for the Plaintiff Erika Norheim Glenn Solomon for the Defendants