Basaraba v. Manitoba, (2009) 237 Man.R.(2d) 71 (QB)

• Judge: Cummings, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 04, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 237 Man.R.(2d) 71 (QB);2009 MBQB 28

Basaraba v. Man. (2009), 237 Man.R.(2d) 71 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. FE.027

Timothy Mark Basaraba (applicant) v. Government of Manitoba (respondent)

(CI 07-02-01957; 2009 MBQB 28)

Indexed As: Basaraba v. Manitoba

Manitoba Court of Queen's Bench

Brandon Centre

Cummings, J.

February 4, 2009.

Summary:

Basaraba applied for an order requiring the government of Manitoba to unseal his medical record under the Mental Health Act. The Crown moved under Queen's Bench Rule 25.11(d) to dismiss the application as disclosing no reasonable cause of action.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2008), 227 Man.R.(2d) 87, granted the Crown's motion. Basaraba appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - [See Practice - Topic 2230 ].

Hospitals - Topic 5105

Mental hospitals and psychiatric wards - Clinical records - Disclosure - [See Practice - Topic 2230 ].

Medicine - Topic 3083

Relation with patient - Charts, records, opinions and reports - Access to by patient - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Basaraba brought an application against the government seeking disclosure of his clinical files under the Mental Health Act and disclosure of his personal health information - Basaraba acknowledged that he had not "engaged" the statutory procedures for accessing health records or information, but asked the court to exercise its inherent jurisdiction to make the requested order - The Crown's motion under Queen's Bench Rule 25.11(d) to dismiss the application as disclosing no reasonable cause of action was granted - The Manitoba Court of Queen's Bench dismissed Basaraba's appeal - The Mental Health Act provided that a request for clinical records was to be made to the medical director, an appeal to Mental Health Review Board and a further appeal to the court - The request for personal health information was to be made to a trustee under the Freedom of Information and Protection of Privacy Act, an appeal to the Ombudsman and a further appeal to the court - Basaraba had to comply with those remedies and procedures and could not, instead, avoid the roadmap set out in the legislation and bring an action against the government - Nothing prevented Basaraba from taking advantage of the legislative schemes for disclosure.

Cases Noticed:

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 10].

Tenning v. Manitoba (1983), 25 Man.R.(2d) 179 (C.A.), refd to. [para. 12].

Corbin v. Manitoba et al. (1996), 108 Man.R.(2d) 248 (Q.B.), affd. (1996), 110 Man.R.(2d) 192; 118 W.A.C. 192 (C.A.), refd to. [para. 13].

Counsel:

T.M. Basaraba, appeared in person;

Sean Boyd, for the respondent.

This appeal was heard by Cummings, J., of the Manitoba Court of Queen's Bench, Brandon Centre, who delivered the following judgment on February 4, 2009.