IMS Health Canada Ltd. v. Information and Privacy Commissioner,

• Judge: Hunt,Ritter,Smith
• Neutral Citation: 2005 ABCA 325
• Citation: (2005), 376 A.R. 336 (CA),2005 ABCA 325,376 AR 336,(2005), 376 AR 336 (CA),376 A.R. 336
• Date: 10 May 2005
• Court: Court of Appeal (Alberta)

IMS Health Can. v. Privacy Commr. (2005), 376 A.R. 336 (CA);

    360 W.A.C. 336

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.043

IMS Health Canada Limited (respondent/applicant) v. Information and Privacy Commissioner (appellant/respondent) and Alberta Medical Association, Alberta College of Pharmacists and Pharmacists' Association of Alberta (not parties to this appeal/respondents)

(0403-0075-AC; 2005 ABCA 325)

Indexed As: IMS Health Canada Ltd. v. Information and Privacy Commissioner

Alberta Court of Appeal

Hunt and Ritter, JJ.A., and Smith, J.(ad hoc)

October 7, 2005.

Summary:

IMS was a company involved in collecting and analyzing health care information. The Information and Privacy Commissioner (Alta.) notified IMS that he would be investigating disclosures by pharmacies to IMS (Health Information Act (Alta.), s. 84). IMS applied for judicial review. The Commissioner filed an initial return.

The Alberta Court of Queen's Bench, i.e., the case management judge, in a decision reported 350 A.R. 390, directed the Commissioner to include in his return documents which were "the foundation for his decision to investigate" (the first order). The Commissioner filed a supplementary return. The case management judge ruled that the Commissioner's supplemental return was in compliance with the first order, but ordered further disclosure (the second order). The Commissioner and IMS cross-appealed, the main issue being the content of the Commissioner's return.

The Alberta Court of Appeal allowed the appeal and cross-appeal in part.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record (incl. return) - What constitutes the "record" (incl. sufficiency of record or return) - The Alberta Court of Appeal discussed what constitutes the "record" for purposes of a certiorari application in Alberta courts and what had to be included in the return - See paragraphs 25 to 53.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record (incl. return) - What constitutes the "record" (incl. sufficiency of record or return) - Rules 753.12(1) and 753.13(1) of the Alberta Rules of Court provided that the return on a judicial review application had to include "all things touching the matter" - The Alberta Court of Appeal discussed what was meant by the phrase "all things touching the matter" - See paragraphs 35 to 53.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record (incl. return) - What constitutes the "record" (incl. sufficiency of record or return) - IMS was a company involved in collecting and analyzing health care information - The Information and Privacy Commissioner (Alta.) notified IMS that he would be investigating disclosures by pharmacies to IMS (Health Information Act (Alta.), s. 84) - IMS applied for judicial review - The Commissioner filed an initial return - The case management judge directed that the return should also include certain documents (the first order) - The Commissioner filed a supplementary return - The judge ruled that the Commissioner's supplemental return was in compliance with the first order, but ordered further disclosure (the second order) - The Commissioner appealed, arguing that the judge was functus officio when he made the second order - The Alberta Court of Appeal, stating that this was a question of law reviewable on the standard of correctness, held that the judge was not functus when he ordered additional items included in the return - The second order was simply a clarification of the first - The judge therefore did not issue a final order with the first order, rather he reserved the right to further examine the sufficiency of the material produced - See paragraph 20.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record (incl. return) - What constitutes the "record" (incl. sufficiency of record or return) - IMS was a company involved in collecting and analyzing health care information - The Information and Privacy Commissioner (Alta.) notified IMS that he would be investigating disclosures by pharmacies to IMS (Health Information Act (Alta.), s. 84) - IMS applied for judicial review - The Commissioner filed an initial return - The case management judge directed that the return should also include certain documents (the first order) - The Commissioner filed a supplementary return - The judge ruled that the Commissioner's supplemental return was in compliance with the first order, but ordered further disclosure, notwithstanding that IMS did not seek further disclosure (the second order) - The Commissioner appealed - The Alberta Court of Appeal noted that if the supplementary return was indeed sufficient as stated by the judge, the reference to "disclosure" had to be to the discovery provisions contained in Part 13 of the Rules of Court - The court stated that such an order was in error as IMS did not seek discovery and such an order was not called for in the circumstances - Therefore, the question to be addressed was whether the judge erred in his decision that the return was sufficient - The court held that in fact the judge had erred in concluding that the return complied with the first order - See paragraphs 11 to 24.

Administrative Law - Topic 5061

Judicial review - Certiorari - The record (incl. return) - Functions or powers of court respecting return (incl. when judge functus officio) - [See third and fourth Administrative Law - Topic 5060 ].

Courts - Topic 2189

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - [See third Administrative Law - Topic 5060 ].

Practice - Topic 4160

Discovery - General principles - When available - [See fourth Administrative Law - Topic 5060 ].

Practice - Topic 4556

Discovery - Production and inspection of documents - General - Proper procedure where privilege claimed or relevancy contested - IMS was a company involved in collecting and analyzing health care information - The Information and Privacy Commissioner (Alta.) notified IMS that he would be investigating disclosures by pharmacies to IMS (Health Information Act (Alta.), s. 84) - IMS applied for judicial review - The Commissioner filed an initial return - The case management judge directed that the return should also include certain documents (the first order) - The Commissioner filed a supplementary return - The judge ruled that the Commissioner's supplemental return was in compliance with the first order, but ordered further disclosure of all non-privileged documents created during a certain time frame (the second order) - The case management judge also privately examined some documents over which solicitor-client privilege was claimed - After hearing arguments on the issue, he found that the documents were privileged - IMS appealed, arguing that the case management judge erred in the process used to determine privilege - The Alberta Court of Appeal held that the procedure adopted by the judge was appropriate in the circumstances - See paragraph 21.

Trade Regulation - Topic 9429

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, reports and particular remedies) - Judicial review - What constitutes the "record" and sufficiency of return - [See fourth Administrative Law - Topic 5060 ].

Words and Phrases

All things touching the matter - The Alberta Court of Appeal discussed the meaning of this phrase as found in rules 753.12(1) and 753.13(1) of the Alberta Rules of Court - See paragraphs 35 to 53.

Cases Noticed:

R. v. Simpson (J.) (1998), 172 N.S.R.(2d) 182; 524 A.P.R. 182 (C.A.), refd to. [para. 19].

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234 (C.A.), refd to. [para. 19].

Guccione v. Alberta Veterinary Medical Association (1998), 238 A.R. 331 (Q.B.), refd to. [para. 19].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 20].

R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, [1952] 1 All E.R. 122 (C.A.), refd to. [para. 25].

Saskatchewan Insurance, Office and Professional Employees' Union, Local 397 v. Saskatchewan Government Insurance, [1984] 4 W.W.R. 668; 34 Sask.R. 2 (Q.B.), refd to. [para. 29].

Steel and Alberta Union of Provincial Employees v. Alberta and Public Service Grievance Board and Alberta (Minister of Government Services), [1978] 3 W.W.R. 63; 11 A.R. 1 (T.D.), refd to. [para. 31].

Alberta Union of Public Employees v. Alberta - see Steel and Alberta Union of Provincial Employees v. Alberta and Public Service Grievance Board and Alberta (Minister of Government Services).

Broda v. Edmonton (City) (1989), 102 A.R. 255 (Q.B.), refd to. [para. 32].

Robertson v. Edmonton Chief of Police et al. (2004), 355 A.R. 281 (Q.B.), refd to. [para. 33].

Ady v. Law Society of Alberta (1994), 29 Admin.L.R.(2d) 56 (Alta. C.A.), refd to. [para. 37].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 41].

Tremblay v. Commission des affaires sociales et autre, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 42].

Glengarry Memorial Hospital v. Pay Equity Hearings Tribunal (Ont.) et al. (1993), 60 O.A.C. 161; 99 D.L.R.(4th) 682 (Div. Ct.), leave to appeal denied (1993), 99 D.L.R.(4th) 706 (Ont. Div. Ct.), refd to. [para. 42].

Kuntz v. College of Physicians and Surgeons (B.C.) (1996), 73 B.C.A.C. 167; 120 W.A.C. 167; 21 B.C.L.R.(3d) 219 (C.A.), refd to. [para. 43].

Hammami v. College of Physicians and Surgeons (B.C.) (1996), 73 B.C.A.C. 205; 120 W.A.C. 205; 21 B.C.L.R.(3d) 267 (C.A.), refd to. [para. 43].

Waverley (Village Commissioners) et al. v. Kerr et al. (1994), 129 N.S.R.(2d) 298; 362 A.P.R. 298 (C.A.), refd to. [para. 44].

Canadian Utilities Ltd. v. Mannix Ltd. et al. (1959), 27 W.W.R.(N.S.) 508 (Alta. T.D.), refd to. [para. 49].

Czuy v. Mitchell et al. (1976), 1 A.R. 434; 72 D.L.R.(3d) 424 (C.A.), refd to. [para. 49].

Hopper v. Dunsmuir (1903), 10 B.C.R. 23 (C.A.), refd to. [para. 50].

Wismer v. Maclean-Hunter Publishing Co. and Fraser No. 2 (1953), 10 W.W.R.(N.S.) 625 (B.C.C.A.), refd to. [para. 50].

Cominco Ltd. v. Westinghouse Canada Ltd. (1979), 11 B.C.L.R. 142 (C.A.), refd to. [para. 50].

R. and Minister of Highways v. Wells (W.C.) Construction Co. (1969), 72 W.W.R.(N.S.) 121 (Sask. Q.B.), refd to. [para. 51].

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 51].

Steier et al. v. University Hospital Board et al., [1988] 4 W.W.R. 303; 67 Sask.R. 81 (C.A.), refd to. [para. 51].

Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.), refd to. [para. 52].

Statutes Noticed:

Health Information Act, R.S.A. 2000, c. H-5, sect. 84 [para. 18].

Rules of Court (Alta.), rule 753.12(1), rule 753.13(1) [para. 17].

Authors and Works Noticed:

Ellis, Ron, and Atterma, Paul, Deliberative Secrecy and Adjudicative Independence: The Glengarry Precipice (1994), 7 C.J.A.L.P. 171, generally [para. 42].

Counsel:

R.B. Drewry, Q.C., and J.E. Raaen, for the respondent/applicant;

D.P. Jones, Q.C., for the appellant/respondent.

This appeal and cross-appeal were heard on May 10, 2005, before Hunt and Ritter, JJ.A., and Smith, J.(ad hoc), of the Alberta Court of Appeal. Ritter, J.A., delivered the following reasons for judgment for the court on October 7, 2005.