Wyndowe v. Rousseau & Anor.

R received long-term disability benefits from an insurer, Maritime Life (“ML”). Pursuant to the terms of that insurance policy, ML had the right to commission an independent medical examination (“IME”) of R. ML retained the services of W to complete an IME on R.

Following completion of the IME, W sent a formal written report to ML. R requested and was sent a copy of the report. R also requested a complete copy of W’s file, which was composed solely of W’s notes which he had taken during the IME. W refused to grant access to the notes. ML did not have access to the notes either. Subsequent to, and because of, W’s report, ML terminated R’s long-term disability benefits.

R complained to the Office of the Privacy Commissioner regarding W’s refusal to disclose the notes. The Privacy Commissioner recommended that W disclose his notes to R. W refused.

R applied to the Federal Court for an order that W’s notes be provided to him and that application was granted (2006 FC 1312).  W appealed that decision.

The issue before the court was whether handwritten notes, taken by a doctor during an IME of an insured person at the request of his insurance company, were personal information under the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“Act”). If they were, the insured person would have the right to access the notes.

[Adapted from INTERIGHTS summary, with permission]

The Court held that R was entitled and had a right under the Act to seek access to the notes, regardless of motivation. Moreover, the Act overrides common law on the issue of the right of access to one’s personal health records. R had a right to access the portion of the notes taken by W which constituted his personal information, though not all of the information contained within the notes was personal to R. R had 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. However, the process of getting to the final opinion from the initial personal information of R belonged to the doctor.

[Adapted from INTERIGHTS summary, with permission]

"I am not persuaded that at common law an insured has no right of access to his medical records. In any event, it is my view that the common law should not prevail where the very purpose of the PIPED Act is to provide new privacy protections to Canadians not otherwise enjoyed under the common law. The PIPED Act has expressly addressed “personal health information”, first in the definition section, then in the transitional provisions section (section 30), and finally in Principle 9 – Individual Access, where Principle 4.9.1 in Schedule I provides that “…the organization may choose to make sensitive medical information available through a medical practitioner”. If there was common law on this issue, it was clearly overridden by the statute." Paras. 27-28.

"In light of the Privacy Commissioner’s recognition that there are in the notes information which is personal to Mr. Rousseau and information which is not, it may be said that in the end, 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." Para. 49.