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Court of Queen’s Bench of Alberta

Citation: Caritas Health Group v. Alberta (Information and Privacy Commissioner),


2009 ABQB 186

Date: 20090327
Docket: 0803 17642
Registry: Edmonton

In the Matter of Orders F2008-012 and H2008-003


Issued by the Office of the
Information and Privacy Commissioner

Between:

Caritas Health Group

Applicant
- and -

Office of the Information and Privacy Commissioner and Dr. Abilio S. Nunes

Respondents

_______________________________________________________

Reasons for Judgment


of the
Honourable Mr. Justice Brian R. Burrows
_______________________________________________________

[1] The Information and Privacy Commissioner ordered Caritas Health Group to give
Dr. Abilio S. Nunes access to two records. Caritas seeks to have that order quashed.

[2] The records are an e-mail written on January 25, 2006 to the Chief of Staff of a hospital
under Caritas’ jurisdiction by a member of the medical staff (referred to in the application as
Dr. B.) and a letter of January 20, 2006 written by another member of the medical staff (referred
to as Dr. A.) to Dr. B. and forwarded by Dr. B. with the e-mail to the Chief of Staff. Dr. Nunes
sought access to the records because he understood they contained complaints about him.

[3] When Caritas denied Dr. Nunes’ request for the records, Dr. Nunes applied to the
Information and Privacy Commissioner for a review of Caritas’ decision. The Commissioner
Page: 2

delegated his inquiry obligations to an “adjudicator” in the Commissioner’s office. She


conducted an inquiry on the basis of representations made in writing and issued her decision on
October 30, 2008.

[4] The materials provided to the adjudicator by the parties included an affidavit by the Chief
of Staff and an affidavit by Dr. Nunes each of which, at the request of the party submitting it,
was received “in camera”. Neither party has seen the affidavit submitted by the other.

[5] At the conclusion of her reasons, the adjudicator ordered Caritas to produce copies of the
records to Dr. Nunes excepting only the name of a patient contained in the January 20, 2006
letter.

[6] Caritas submits that the adjudicator made three errors in her decision.

Alleged Error #1: Finding that disclosure of the records would not be an unreasonable
invasion of a third party’s privacy

[7] The first suggested error relates to the adjudicator’s conclusion under s. 17 of FOIP that
disclosure of personal information contained in the records would not be an unreasonable
invasion of a third party’s personal privacy.

[8] It is not disputed that the records contain “personal information” within the meaning of
s. 1(n) of FOIP. Some of the personal information is about Dr. Nunes. Some of it is about the
authors of the records. Some of it is about other persons. The adjudicator found that the
personal information fell within s. 17(4)(g). Therefore the presumption created by s. 17(4), that
disclosure of the information would be an unreasonable invasion of a third party’s privacy,
arose.
[9] As contemplated in s. 17(5), the adjudicator proceeded to consider all the relevant
circumstances in order to determine whether the s. 17(4) presumption was rebutted in this case.
She noted that the list of factors in s. 17(5) is not exhaustive. All relevant circumstances
including those listed are to be considered. In respect of each of the two records sought to be
disclosed, the adjudicator found three elements of the circumstances to be relevant to her
determination.

[10] First, the adjudicator noted that the Hospital Act, s. 17 requires a hospital to adopt bylaws
governing the conduct of medical staff. The bylaws of the hospital in question required the
Chief of Staff to review complaints as to the conduct of a member of the medical staff. The
bylaws also provided:

A copy of a written complaint, or the substance of the complaint when received


verbally shall immediately be provided to the Member in question.

[11] The adjudicator noted that under s. 1(1)(c) of the Interpretation Act this bylaw has the
status of a regulation. She observed:
Page: 3

The fact that a regulation authorizes disclosure of information is a factor that may
be considered when weighing whether disclosure of personal information would
be an unreasonable invasion of personal privacy of a third party under section
17(5).

[12] Second the adjudicator concluded that the information in the records sought by Dr. Nunes
was relevant to a fair determination of Dr. Nunes’ rights. This is the factor listed in FOIP
s. 17(5)(c). The in camera evidence filed by Dr. Nunes included a letter written by the Chief of
Staff. In her decision, the adjudicator noted, “The third paragraph of this letter indicates that the
Applicant’s reappointment has been affected by concerns of colleagues that were brought
forward.” She observed that the Chief of Staff’s letter indicates that the decision made about
Dr. Nunes’ rights had been based on concerns of the type raised in the records sought to be
disclosed. She reasoned that the records sought would be “necessary for the Applicant to
prepare for his challenge of this decision”. She held that this factor weighed strongly in favour
of disclosure.

[13] Third the adjudicator considered the fact that the author of the e-mail record, Dr. B., had
indicated in his e-mail that he was writing in strict confidence. That personal information is
supplied in confidence is a factor list in s. 17(5)(f). The adjudicator reasoned that Dr. B., who is
a “site leader and a member of the medical staff”, would be required to be aware of the bylaws
and would therefore know that the Chief of Staff would be required to disclose the e-mail to
Dr. Nunes. The bylaws do not contemplate the Chief of Staff taking action other than under the
bylaws. Dr. B. clearly wrote so that the Chief of Staff would take action. Therefore, Dr. B.,
though he purported to write in confidence, did not have a reasonable expectation of
confidentiality. The adjudicator held that in the case of the e-mail the confidence factor did not
therefore weigh significantly in maintaining the s. 17(4) presumption.

[14] In the case of the letter written by Dr. A. and attached to the e-mail, there was no
indication that Dr. A. had expected confidentiality.

[15] The adjudicator held that the factors she considered relevant rebutted the presumption
created by s. 17(4) and justified disclosure of the records to Dr. Nunes though they contained the
personal information of others, except for the name of a patient mentioned in Dr. A.’s letter.

Standard of Review

[16] There is no dispute that the standard of review applicable to this issue is
“reasonableness”. Here, the adjudicator was involved in applying the law set out in her “home
statute” to the facts. This is the very function which the Legislature assigned to the
Commissioner or his delegate. The law requires the Court to defer to the reasonable decisions of
the Commissioner or his delegate made in this context. Stubicar v. Alberta (Office of the
Information and Privacy Commissioner) (2008) 97 Alta. L.R. (4th) 23 (C.A.) at paras. 22, 23,
24; University of Alberta v. Alberta (Information and Privacy Commissioner) 2009 ABQB 112
at para. 90.
Page: 4

[17] As to the application of the “reasonableness standard”, in Minister of Citizenship and


Immigration v. Khosa 2009 SCC 12, Binnie J., writing for five members of the Court, said:
(para. 59)

Reasonableness is a single standard that takes its colour from the context. . . .
Where the reasonableness standard applies, it requires deference. Reviewing
courts cannot substitute their own appreciation of the appropriate solution, but
must rather determine if the outcome falls within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, at
para. 47). There might be more than one reasonable outcome. However, as long
as the process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to substitute its
own view of a preferable outcome.

Assessment of Adjudicator’s Decision on this Issue

[18] Caritas first submits that the adjudicator erred in finding that the disclosure requirement
of the bylaw was relevant. It submitted that the Chief of Staff had elected not to treat either the
e-mail or the letter attached to it as a complaint. Rather he had elected to treat them as
expressions of concern. He had therefore not been obliged to provide them to Dr. Nunes.

[19] In my view this submission has no merit. The bylaws themselves do not create two
classes of communications about the conduct of a staff member, complaints and concerns. They
contemplate only complaints. They do not provide that the Chief of Staff may choose to treat a
communication containing criticism of the conduct of a staff member as anything other than a
complaint. The only process for dealing with such communications permitted by the bylaws
requires disclosure. The Chief of Staff apparently believes he should have more flexibility than
the bylaws give him. The adjudicator reasonably assessed the procedure that actually exists, not
an alternative procedure that does not.

[20] In my view the adjudicator’s assessment of and conclusion regarding the disclosure
requirement of the bylaw and its significance to her inquiry were reasonable.

[21] Caritas next submits that the adjudicator erred in concluding that the contents of the
records are relevant to a fair determination of Dr. Nunes’ rights - the element listed in s.
17(5)(c). Caritas notes that the letter exhibited to Dr. Nunes’ in camera affidavit describes the
sources of the information upon which the Chief of Staff relied in making the decision
announced in the letter. The records sought to be disclosed are not mentioned. Further, the
Chief of Staff in his in camera affidavit said:

The e-mail, with the attached letter, was not treated as a complaint, did not lead to
an investigation, and has not been placed on Dr. Nunes’ personnel file at the
hospital.

[Counsel for Caritas expressly waived any confidentiality that might attach to this paragraph.]
Page: 5

[22] Caritas submits that the records sought to be disclosed did not in fact figure into the
determination of Dr. Nunes’ rights and that the adjudicator therefore erred in concluding that
s. 17(5)(c) was engaged.

[23] This submission is also without merit. The records contained information of the same
nature as that referenced in the Chief of Staff’s letter to Dr. Nunes. Though they were not
expressly mentioned in that letter, neither did the letter purport to identify the specific sources of
the concerns that motivated the Chief of Staff’s decision. The records fit into the general
description contained in the letter. The Chief of Staff did not swear that the contents of the
records were not considered in determining Dr. Nunes’ rights. He swore only that the records
had not been placed on Dr. Nunes’ personnel file. It was reasonable for the adjudicator not to
infer the former from the latter.

[24] Further the adjudicator observed that even if the information in the records was not taken
into account in the Chief of Staff’s determination of Dr. Nunes’ rights, it was certainly relevant
to that determination and would be relevant in the proceedings initiated by Dr. Nunes to
challenge that determination. Clearly the factor listed in s. 17(5)(c) is present here. The
adjudicator’s analysis of that factor was reasonable.

[25] Caritas also submits that Dr. B.’s expectation that his communication would be held in
confidence should have been accepted as weighing against disclosure. Caritas submits that it is
important to patient safety that there be a means by which members of the medical staff can raise
concerns about the conduct of other members in confidence. As noted, however, the bylaws
enact a different policy, a policy of transparency and openness in the resolution of conflicts
arising among professional medical staff. Again it was reasonable for the adjudicator to place
the emphasis she did on the policy reflected in the bylaws in preference to a policy not reflected
in the bylaws however desirable some might believe the latter to be.

[26] In my view the adjudicator’s decision with respect to this issue was entirely reasonable.

Alleged Error #2: Breaches of Procedural Fairness

[27] Caritas alleges that the adjudicator made three errors in the procedure she followed in her
inquiry. It alleges that these amounted to breaches of procedural fairness and for that reason the
decision should be quashed.

[28] The alleged breaches of procedural fairness are:

a) that in her assessment of the issue under s. 17, the adjudicator considered and
relied on the factor listed in s. 17(5)(c) though Dr. Nunes did not expressly raise it
in his submissions.

b) that the adjudicator determined that Dr. Nunes’ evidence in his in camera
affidavit was preferable to the evidence of the Chief of Staff in his in camera
affidavit but gave no reasons for this credibility finding.
Page: 6

c) that the adjudicator relied on Dr. Nunes’ in camera affidavit, which was
submitted by Dr. Nunes as rebuttal evidence, though Caritas had no opportunity
to respond to it.

[29] The Court does not defer to a decision of an administrative tribunal made in breach of the
principles of procedural fairness.

[30] The first and third matters raised in this context are clearly not breaches of procedural
fairness.

[31] FOIP s. 69(1) authorizes the Commissioner (and his delegate) to decide all questions of
fact and law arising in the course of the inquiry. There is no requirement that the question be
expressly raised by a party. In this case the point clearly arose out of the evidence.

[32] FOIP s. 69(3) provides that “. . . no one is entitled . . . to have access to or to comment on
representations made to the Commissioner by another person”. That which the statute expressly
requires cannot be a breach of the principles of fairness.

[33] As to the second matter raised in this context, the suggestion that the adjudicator made a
credibility finding against the Chief of Staff is not accurate. Caritas submits that the
adjudicator’s finding that the Chief of Staff’s letter indicated “. . . that the Applicant’s
reappointment has been affected by concerns of colleagues that were brought forward . . .”
and “. . . contains information that could be interpreted as referring to the information in the
email . . .” (para. 57) constitutes a rejection of the Chief of Staff’s evidence that the documents
sought to be disclosed had not been put on Dr. Nunes’ personnel file.

[34] This is an inaccurate interpretation of the adjudicator’s decision. The Chief of Staff did
not swear that the contents of the documents sought to be disclosed had no significance to the
determination announced in the Chief of Staff’s letter. That the information in the documents
sought to be disclosed is of the nature described in the Chief of Staff’s letter is obvious to
anyone who has read all three documents (which includes the Chief of Staff and counsel for
Caritas). The adjudicator did not reject or otherwise comment on the Chief of Staff’s evidence
that the documents sought to be disclosed had not been placed on Dr. Nunes’ personnel file. She
did not suggest that evidence was not credible. There is no conflict between that evidence and
the finding the adjudicator made. Her decision does not constitute a rejection of the Chief of
Staff’s evidence. There was no breach of procedural fairness in her failure to give reasons for
something she did not do.

[35] It is not necessary for me to deal with the submission made by Dr. Nunes that at least the
second complaint of procedural unfairness is really an attempt to challenge a finding of fact to
which the court would be obliged to defer. I find that even if it is characterized as a breach of
fairness, to which the court does not defer, it is entirely without merit.

Alleged Error #3: Finding that the records were not protected from disclosure by a legal
privilege
Page: 7

[36] Caritas initially submitted that the adjudicator erred in failing to find that the records
sought to be disclosed were protected from disclosure by two legal privileges: confidential
informer privilege, and “case-by-case” privilege.

[37] At the hearing of this application counsel for Caritas acknowledged that it is clear from
the record that Dr. Nunes knows the identity of Dr. A. and Dr. B. Therefore the only thing that
confidential informer privilege is intended to protect, the identity of this informer, is not capable
of being protected in this case. Counsel conceded that confidential informer privilege need not
be considered further.

[38] As to case-by-case privilege, Caritas submits that the adjudicator erred in holding that the
four Wigmore criteria which must be present for case-by-case privilege to arise, are not present
in this case.

[39] The parties do not agree as to the standard of review applicable to this issue. Caritas
submits that the determination of whether the Wigmore criteria are satisfied is a question of law
upon which the adjudicator has no special expertise to which the Court is required to defer.
Counsel for Dr. Nunes and the Commissioner, referring to FOIP s. 27(1)(a) which brings the
determination of legal privileges within the statute, submit that no deference is due to the
adjudicator’s determination as to what the applicable law is, but that deference is due to the
findings of fact and law made in the course of applying the law of privilege.

[40] It is not necessary for me to resolve this dispute. In my view the adjudicator’s
determination on this issue was correct. It was therefore also reasonable.

[41] The adjudicator addressed each of the four Wigmore criteria individually and set out her
reasons for holding that none of them were satisfied. (See paras. 101 to 104 of her decision).
She relied fundamentally on the disclosure requirement of the bylaw. In effect she found that the
existence of a case-by-case Wigmore privilege was impossible given the bylaw requirement that
the Chief of Staff disclose complaints received to the subject of the complaint. None of the four
Wigmore elements could exist where a bylaw which had the force of a regulation required
disclosure.

[42] I conclude that there is no basis upon which to quash the adjudicator’s decision. The
application is dismissed.

[43] I award Dr. Nunes costs as against Caritas.

Heard on the 18th day of March, 2009.


Dated at the City of Edmonton, Alberta this 26th day of March, 2009.
Page: 8

Brian R. Burrows
J.C.Q.B.A.

Appearances:

Lorne I. Randa, Brownlee LLP


for Caritas Health Group

Ritu Khullar, Chivers Carpenter


for the Office of the Information and Privacy Commissioner

Tim J. Ryan, Gowling Lafleur Henderson LLP


for Dr. Abilio S. Nunes