DAMON J. GIESBRECHT, APPLICANT - v. -, 2023 SKKB 80

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 80 Date: 2023 04 19 Docket: QBG-RG-00771-2022 Judicial Centre: Regina BETWEEN: DAMON J. GIESBRECHT, APPLICANT - and - SASKATCHEWAN GOVERNMENT INSURANCE, RESPONDENT Counsel: Damon Giesbrecht on his own behalf Amanda M. Quayle, K.C. for the respondent ___________________________________________________________________________ JUDGMENT CLACKSON J. April 19, 2023 ___________________________________________________________________________ I.

BACKGROUND [ 1 ] Saskatchewan Government Insurance’s Medical Review Unit [MRU] received a confidential report raising a concern about Mr. Giesbrecht’s fitness to drive [Report]. The Report precipitated a letter from MRU to Mr. Giesbrecht dated May 23, 2019 in which Mr. Giesbrecht was asked to provide a medical report to MRU respecting “any underlying medical conditions and use of prescribed or nonprescribed treatments which could be causing impairment of functional ability to drive - such as medical marijuana”. The letter warned that Mr.

Giesbrecht’s licence to drive would be suspended if the medical report was not received by June 22, 2019. The letter included a blank form to be completed by Mr. Giesbrecht’s medical professional and advised Mr. Giesbrecht that the medical report would be provided at no expense to him. [ 2 ] Mr. Giesbrecht complied with the request and after receipt of the medical report MRU decided that no further action was necessary. Mr. Giesbrecht’s licence was not suspended or restricted in any way. [ 3 ] On May 30, 2019, Mr.

Giesbrecht submitted a request to the MRU under the provisions of The Freedom of Information and Protection of Privacy Act , SS 1990-91, c F-22.01 [ FOIP ], for disclosure of the Report. Mr. Giesbrecht’s stated objective in making his request was to learn the identity of the person who submitted the Report to MRU. [ 4 ] SGI responded to Mr. Giesbrecht’s request by way of a letter dated June 28, 2019. In the letter SGI invoked the provisions of s. 7(4) of FOIP stating that the Report sought is exempt from access under FOIP and refusing to confirm or deny the existence of the Report.

[ 5 ] On July 4, 2019, Mr. Giesbrecht sought a review of SGI’s response by the Office of the Saskatchewan Information and Privacy Commissioner [Commissioner]. On August 12, 2020, the Commissioner determined that Mr. Giesbrecht’s request engaged the provisions of The Health Information Protection Act , SS 1999, c H-0.021 [ HIPA ], rather than FOIP and recommended that SGI respond to Mr. Giesbrecht’s request in accordance with s. 36 of HIPA . [ 6 ] In a letter dated September 9, 2020, SGI responded to Mr. Giesbrecht’s request by invoking the provisions of s. 38(1)(

f) of HIPA and refused to disclose the Report on the basis that “disclosure of the information could interfere with a lawful investigation or be injurious to the enforcement of

an Act or regulation”. [ 7 ] Mr. Giesbrecht again sought a decision by the Commissioner on whether the latest response from SGI was appropriate. In a review report dated February 17, 2022, the Commissioner determined that SGI had failed to demonstrate that Mr. Giesbrecht had no right to access the Report and recommended that SGI release the Report to Mr. Giesbrecht. [ 8 ] SGI declined to follow the Commissioner’s recommendation and advised Mr. Giesbrecht of that decision in a letter dated March 8, 2022. [ 9 ] Mr.

Giesbrecht now appeals SGI’s decision to this court pursuant ss. 50 and 51 of HIPA . [ 10 ] Preliminary to the hearing of Mr. Giesbrecht’s appeal SGI sought and received an order pursuant to s. 51(3) of HIPA granting SGI permission to file a copy of the Report in camera and under seal. I reviewed the Report to ascertain the form in which it was made and its author. II. STANDARD OF REVIEW [ 11 ] According to s. 50 of HIPA the focus of this appeal is SGI’s refusal to follow the recommendations made in the Commissioner’s Review Report of February 17, 2022.

The recommendations themselves are not under review nor is the Commissioner’s decision. [ 12 ] Section 51(1) (

a) of HIPA provides that: 51(1) On an appeal, the court: (

a) shall determine the matter de novo ; and (

b) may examine any record in private in order to determine on the merits whether the information in the record may be withheld pursuant to this Act. [ 13 ] Section 58(1) of FOIP contains almost precisely the same wording as s. 51(1) of HIPA .

At paragraph 47 of the decision in Leo v Global Transportation Hub Authority , 2020 SKCA 91 , Richards C.J.S. addressed the nature of a de novo appeal in these words, “The de novo nature of an appeal pursuant to s. 57 speaks to the fact that no deference is owed by a Chambers judge to the decision under appeal and that the record on which the Chambers judge makes his or her decision is to be developed afresh.” [ 14 ] I am satisfied that in an appeal under s. 51 of HIPA the appeal court is not limited to the record before the Commissioner and may consider any additional evidence either party cares to advance. III.

ISSUES [ 15 ] SGI relies on s. 38(1) (

f) of HIPA as the basis for its refusal to disclose the Report to Mr. Giesbrecht. No issue is taken with the Commissioner’s conclusion that the provisions of HIPA rather than FOIP are engaged in Mr. Giesbrecht’s request for disclosure and SGI concedes that it bears the burden of proving it is entitled to refuse disclosure of the Report. IV. ANALYSIS [ 16 ] Section 38(1) (

f) of HIPA provides: 38(1) Subject to subsection (2), a trustee may refuse to grant an applicant access to his or her personal health information if: … (

f) disclosure of the information could interfere with a lawful investigation or be injurious to the enforcement of

an Act or regulation. [ 17 ] To succeed in this appeal SGI must prove either that disclosure of the Report could interfere with a lawful investigation or that disclosure could be injurious to the enforcement of

an Act or regulation. Could disclosure of the Report interfere with a lawful investigation? [ 18 ] There is no evidence of a current or impending investigation relating to the matters in the Report. Certainly, the Report precipitated an investigation into Mr. Giesbrecht’s medical fitness to operate a vehicle, but that investigation is long concluded and did not result in any restrictions on Mr.

Giesbrecht’s driver’s licence. [ 19 ] As the administrator of The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ], SGI bears the responsibility for assessing and overseeing the licensure of drivers, that responsibility includes assessing competency and fitness to operate a vehicle. As administrator of the TSA , SGI may suspend or revoke a driver’s licence if the driver suffers a medical condition that will make it dangerous for the driver to operate a vehicle.

There are only two groups of people who are required by the TSA to report drivers suffering medical conditions affecting driver fitness [driver fitness report(s)]. One group is composed of duly qualified medical practitioners and

optometrists [medical practitioners] and the other group is the affected drivers themselves. Drivers are obligated to self-report by s. 51(1) of the TSA [self-reports] and medical practitioners are obligated to report by ss. 283(1) and (2) of the TSA [practitioner reports]. [ 20 ] Reports concerning driver medical fitness are received by SGI’s MRU. MRU is responsible to investigate such reports and take appropriate measures with a view to promoting road safety. In addition to self-reports and practitioner reports MRU receives complaints about driver medical fitness from other agencies and individuals.

These reports are voluntarily made. It is MRU’s policy to accept complaints from these additional sources in confidence. While s. 283 of the TSA obligates medical practitioners to submit practitioner reports, it is MRU’s policy to permit medical practitioners to make practitioner reports in confidence if the medical practitioner wishes to do so. There is no provision in the TSA permitting practitioner reports to be made in confidence. Receiving driver fitness reports in confidence is a policy choice by MRU, which it adopted to encourage reporting.

If a driver fitness report is received in confidence, MRU initiates an investigation by sending a letter to the subject of the report similar to the letter Mr. Giesbrecht received. The Report in this case was made in confidence. [ 21 ] SGI argues that disclosure of the Report would negate the promise of confidentiality, and thus interfere with its ability to identify and assess the medical fitness of drivers. Leaving aside for the moment the question of whether SGI has established a factual basis for this assertion, the initial question to be answered is whether s. 38(1)(

f) permits SGI to refuse disclosure of this Report on the basis that doing so could impact future investigations or its investigative process. [ 22 ] SGI cites the decisions in Lavigne v Canada (Office of the Commissioner of Official Languages) , 2002 SCC 53 , [2002] 2 SCR 773 [ Lavigne ] , and Ruby v Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 SCR 3 [ Ruby ] , as authority for the proposition that the exemption in s. 38(1)(

f) is broad in its application and permits a trustee of a personal health record to refuse disclosure of the record to the person to whom it relates if disclosure could interfere with any current or prospective investigation, future investigations generally, or the investigative process itself. Applying this argument to the facts of this case, it is SGI’s position that it is entitled to refuse disclosure of the Report because disclosure could interfere with future investigations of drivers generally and with the efficacy of such future investigations. [ 23 ] Both Lavigne and Ruby considered the application of s. 22(1) (

b) of the Privacy Act , RSC 1985, c P-21 [ Privacy Act ]. That

section provides that: 22(1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) … (

b) the disclosure of which could reasonably be expected to be injurious to … the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (

i) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation; ... . [ 24 ] Addressing the scope of that provision, the court in Lavigne considered whether the phrase “lawful investigations” was intended to mean only existing and identifiable prospective investigations or included future investigations as well. The court noted that the definition of “investigation” set out in the Privacy Act did not limit the meaning of the word only to current or specific investigations. It was also observed that s. 22(1) (

b) provided a non-exhaustive list of the types of investigations that would be considered “lawful investigations”. The court concluded that the nature of the enumerated investigations also indicated that “lawful investigations” was to be understood in a broad sense. Lastly, the court observed that the nature of the investigation referenced in s. 22(1) (b)(ii) appeared to contemplate the need to protect future investigations.

On these bases, the court concluded that the phrase “lawful investigations” meant that an applicant’s personal information would be exempt from disclosure if it could reasonably be expected to be injurious to the conduct of an existing investigation, an identifiable prospective investigation, or future investigations generally. This conclusion was affirmed by the Supreme Court a few months later in Ruby . [ 25 ] In my view, Lavigne and Ruby do not assist SGI on its argument. The wording of s. 38(1) (

f) of HIPA is different from the wording in s. 22(1) (

b) of the Privacy Act : 1. Section 22(1)(

b) refers to investigations in the plural sense thus implying a future element to the phrase. Section 38(1)(

f) refers to investigation in the singular sense implying a current investigation or an investigation already in contemplation.

Section 22 of the Privacy Act defines “investigation” in a general sense and among the types of investigations that would qualify as “lawful investigations” according to s. 22(1)(

b) is a reference in subparagraph (

i) to “a particular investigation”. The implication of this reference is that a singular particular investigation is a subset of the overall group of investigations that would be regarded as “lawful investigations” under the section.

Section 38 does not define “investigations” nor identify in any way whether a specific investigation or investigations in general are intended by the section. [ 26 ] Finding no assistance in the decisions in Lavigne and Ruby , I turn to the provisions of HIPA itself to tease out the meaning and intent of s. 38(1) (f). I do so by applying the principle of statutory

interpretation codified in s. 2 - 10 of The Legislation Act , SS 2019, c L-10.2 . That

section provides: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects.

[ 27 ] The

preamble to HIPA , which forms part of the Act (see s. 2 - 19(2) of The Legislation Act ), reflects its intent and purpose (see Gordon Estate v Regina Qu’Appelle Regional Health Authority , 2017 SKQB 291 at para 35 ). The

preamble states: THAT personal health information is private and shall be dealt with in a manner that respects the continuing interests of the individuals to whom it relates; THAT individuals provide personal health information with the expectation of confidentiality and personal privacy; THAT trustees of personal health information shall protect the confidentiality of the information and the privacy of the individuals to whom it relates; THAT the primary purpose of the collection, use and disclosure of personal health information is to benefit the individuals to whom it relates; THAT, wherever possible, the collection, use and disclosure of personal health information shall occur with the consent of the individuals to whom it relates; THAT personal health information is essential to the provision of health services; THAT, wherever possible, personal health information shall be collected directly from the individual to whom it relates; THAT personal health information shall be collected on a need-to-know basis; THAT individuals shall be able to obtain access to records of their personal health information; THAT the security, accuracy and integrity of personal health information shall be protected; THAT trustees shall be accountable to individuals with respect to the collection, use, disclosure and exercise of custody and control of personal health information; THAT trustees shall be open about policies and practices with respect to the collection, use and disclosure of personal health information. [ 28 ] Considering these

preamble statements and the terms of HIPA itself I conclude that the Act is intended to cover the field with respect to the creation and management of personal health information. Such information may not be collected or disseminated except in accordance with the Act. Under the scheme embodied in HIPA the person to whom the information relates always retains an interest in it and is entitled to know the personal health information in the possession of any of the entities listed in s. 2(

t) of the Act. The default position under the Act is disclosure and accountability to the person to whom the information relates. Trustees of personal health information have no independent rights with respect to disclosure. The individual’s right to disclosure is overridden only by the specific circumstances identified in s. 38 of HIPA . [ 29 ] Exceptions to the disclosure of personal information are generally narrowly construed ( see Lavigne at para 55 ) and s. 2 - 10(2) of The Legislation Act instructs me that HIPA should be construed as remedial and thus given “… the fair, large and liberal

interpretation that best ensures the attainment of its objects”. As I stated, the object of HIPA is to place the collection and dissemination of personal health information under the control of the person to whom it relates except in specific instances. [ 30 ] With these principles in mind I turn to consideration of the scope of the phrase “a lawful investigation” as it appears in s. 38(1) (

f) of HIPA . In my view that phrase is capable of two

interpretations. On the one hand, it could mean that disclosure may be refused only if it could interfere with an existing or identifiable prospective investigation.

On the other hand, it could mean that disclosure may be refused if disclosure could interfere with investigations generally; current or future, known or unknown. [ 31 ] Ascribing ordinary meaning to the words used in the section, considering the objects of HIPA stated above, and construing the provisions of HIPA liberally in favour of those objectives and the exception narrowly as a derogation of those rights, I conclude that a trustee may refuse disclosure of personal health information to the person to whom it relates only if disclosure could interfere with an existing or identifiable prospective investigation. [ 32 ] As no such investigation is demonstrated in this case, I find that SGI may not refuse disclosure of the Report on the basis that disclosure could interfere with a lawful investigation.

Having reached this conclusion, I now turn to consideration of SGI’s second reason for refusing disclosure of the Report. Could disclosure of the Report be injurious to the enforcement of

an Act or regulation? [ 33 ] SGI argues that identifying drivers who are medically unfit to drive is important to ensuring the safe operation of vehicles on Saskatchewan roads. Promoting the safe operation of vehicles is one of the objectives of the TSA .

SGI contends that if the promise of confidentiality is overridden by HIPA then medical practitioners and others, who would prefer to make driver fitness reports confidentially, would not make such report, which could be injurious to enforcement of the safety objectives of the TSA . [ 34 ] I am not persuaded by this argument. [ 35 ] Under the TSA an assessment of medical fitness to drive may be initiated in one of two ways; self-reports and practitioner reports.

Section 51(1) of HIPA imposes a self-reporting obligation on drivers if they suffer a medical condition that “ may make it dangerous to operate a vehicle” [my emphasis]. Subsections 283(1) and (2) of the TSA impose an obligation on medical practitioners to report drivers with medical conditions that “ will make it dangerous for that person to operate a vehicle” [my emphasis]. These are the provisions intended by the Legislature to achieve the safety objectives of the TSA with respect to drivers whose medical fitness is called into question. The TSA does not cloak driver fitness reports with confidentiality.

In fact, even though practitioner reports

enjoy a measure of privilege, that immunity evaporates if the report is not made in good faith (see s. 283(4) TSA ). Legislators could have conferred confidentiality on practitioner reports in addition to immunity but did not. The obvious conclusion to be drawn from the absence of such a provision is that confidentiality was not considered necessary to achieve the safety objectives of the TSA regarding driver fitness reports. [ 36 ] In my view granting confidentiality to driver fitness reports would unbalance the competing interests involved in an assessment of a driver’s medical fitness.

The loss of a driver’s licence has significant practical, psychological and sociological impacts for the affected driver. Drivers obviously have a significant interest in maintaining their right and ability to drive. At the same time, road users and others have a significant interest in ensuring that vehicles are operated safely so as to prevent injury and damage to drivers and others. By imposing an obligation on medical practitioners to report patients only if they conclude that the patient’s medical condition will make it dangerous for them to drive, s. 283 balances these interests.

The requirement that a medical practitioner have more than a belief that a patient’s medical condition may make it dangerous to operate a vehicle before making a driver fitness report, when coupled with the loss of immunity if the driver fitness report is not made in good faith, ensures that only those drivers whose medical condition truly impacts their ability to drive will be subjected to scrutiny under the TSA . Permitting reports to be made in confidence upsets this balance.

It subjects a driver to assessment under the TSA even if the medical practitioner is uncertain of the impact of the driver’s medical condition on the driver’s ability to operate a vehicle, is careless as to the extent of the impact, or is simply being vindictive, all while protecting the medical practitioner from any repercussions. [ 37 ] It should also be remembered that the provisions of s. 38(1) (

f) of HIPA are applied only with respect to the Report in question, not all such reports in general. Disclosure of the Report in this case does not mean that all such reports must be disclosed. Confidentiality may still be offered to medical practitioners and others but that confidentiality will be tempered by the limitations imposed by HIPA . This point was made in the Lavigne case, where confidentiality was not only promised by the investigating body but statutorily mandated.

At paragraph 61 of the decision Gonthier J. stated: …Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given. It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by the Privacy Act and the Official Languages Act [RSC 1985, c 31 (4th Supp)]. ... [ 38 ] I conclude that disclosure of the Report would not be injurious to enforcement of the TSA .

Is there evidence that lack of confidentiality will result in fewer driver fitness reports? [ 39 ] Even if I am wrong in the above analysis, I am not convinced on the evidence presented that an inability to offer complete confidentiality with respect to driver fitness reports will result in fewer such reports. [ 40 ] In her affidavit, Leann Nixon sets out statistics with respect to the volume of practitioner reports made between 2017 and 2021. The upshot of this statistical analysis is that in this period 6.4 percent of all practitioner reports were received by the MRU in confidence.

This is not evidence that 6.4 percent of medical practitioner reports would not have been made but for the offer of confidentiality, only that if the lack of confidentiality has a chilling effect on reports it would have that effect on a maximum of 6.4 percent of all reports made between 2017 and 2021. [ 41 ] Ms. Nixon’s affidavit also exhibits a March 2015 report of the Manitoba Law Reform Commission, which she says addresses the issue of under-reporting under Manitoba’s equivalent to s. 283 of the TSA .

The Commission’s report does not address the matter in issue here except to acknowledge that some sources suggest that confidentiality may encourage reporting. The Commission’s report does not grapple with the issue of whether a lack of confidentiality has a chilling effect on reporting. [ 42 ] Exhibits “F” through “J” of Ms. Nixon affidavit are studies conducted with respect to mandatory reporting of driver fitness by medical professionals. These studies suggest that driver fitness is under-reported by these medical professionals.

Many reasons are identified for this phenomenon including that such reports violate doctor/patient confidentiality, lack of skills or training in detecting unfit drivers, unclear reporting requirements, reluctance to discuss driving fitness with a patient, and the potential that reporting may adversely affect the relationship with the patient.

None of these studies reference empirical data tending to show that medical professionals avoided reporting legitimate concerns about a patient’s medical fitness to drive because the report could not be made in confidence. [ 43 ] In an attempt to identify the reasons for under-reporting SGI conducted a survey of occupational therapists and optometrists. The survey results are also exhibited to Ms. Nixon’s affidavit.

Each group was asked, “What are the likely reasons that you would elect to keep your report confidential?” In response to this question, over half of each group identified a negative impact on the patient relationship as a reason to request confidentiality. While these surveys identify the reasons for requesting confidentiality, they do not address the issue underlying SGI’s argument: would medical practitioners avoid reporting driver fitness to SGI if the practitioner report cannot be made in confidence? This is the evidence SGI must adduce to prove its premise.

The statistics, reports and studies offered into evidence do not provide an answer to this question. On the other hand, 93.6 percent of the practitioner reports made to SGI between 2017 and 2021 were made without the assurance of confidentiality. [ 44 ] There is no evidence before me concerning the likelihood of receiving driver fitness reports from other agencies or individuals with or without the promise of confidentiality. V. CONCLUSION [ 45 ] SGI has not demonstrated that it is entitled under s. 38(1) (

f) of HIPA to refuse disclosure of the Report to the appellant. SGI is therefore ordered to disclose the Report in its entirety to the appellant within 30 days of the date of this decision. [ 46 ] The appellant shall be entitled to the costs of this appeal.

J. C.D. CLACKSON