Facts of the Case

In these proceedings, GIFRIC Inc. (“GIFRIC”) defines itself in the following terms: “[TRANSLATION] Appellant GIFRIC Inc. (Groupe interdisciplinaire freudien de recherches et d'interventions cliniques), hereinafter “GIFRIC,” is a non-profit legal person established in 1977 that brings together some forty professionals from various disciplines, including psychoanalysis, human sciences, health sciences and the arts.”

On July 14, 2007, the journalist J. Jacques Samson wrote an article in the daily newspaper Journal de Québec about a treatment centre operated by GIFRIC known simply as “388.” GIFRIC and its directors deemed the article slanderous, resulting in a dispute between the parties.  

Matter in Dispute

The Court of Appeal was apprised of Justice Alicia Soldevila’s interlocutory judgments respecting objections raised in the examinations on discovery.  

Of interest here is specifically the objection that was raised during the examination of one of GIFRIC’s psychoanalysts who worked at “388.” At the time, the Journal de Québec’s lawyer was trying to obtain a list containing the names of members sitting on the clinic’s committee of the patients’ parents.  

At trial, Justice Soldevila dismissed the objection on the grounds that the parents’ identity would not result in identification of the children, since in Québec they do not necessarily bear the same surname as their parents. She was therefore satisfied that the children’s right to professional privilege had not been violated. Even so, she did require that the list of parents be kept in court under seal until trial.  

Court of Appeal Judgment

The Court of Appeal first set aside the argument that disclosing the parents’ names would not allow the children to be identified. In fact, according to article 51 C.C.Q., a child’s name necessarily stems from its parents’ names. The Court of Appeal also maintained that information that can be used to identify the children (who are patients of the clinic) is also protected by the principle that users’ records are confidential under section 19 of the Act respecting health services and social services, R.S.Q., c. S-4.2.

The Court of Appeal also relied on section 56 of the Act respecting access to documents held by public bodies and the Protection of personal information, R.S.Q., c. A-2.1 to establish its reasoning that, in this context, the parents’ names become confidential information on the child-patients:  

[TRANSLATION][33] Moreover, pursuant to section 56, a natural person’s name is personal information “where it appears in conjunction with other information concerning him.” In the case at bar, it is the fact that the persons whose names Respondents are seeking to obtain are the parents of the patients of “388” that constitutes the “other information” spoken of in section 56.  

[34] This is not trivial information, since it could possibly allow, as I have already mentioned earlier, the patients of “388” to be identified.  

[35] I am consequently of the opinion that the list of parent names requested by Respondents contains personal information that is confidential and protected under section 5 of the Charter of Human Rights and Freedoms.

This said, while the information may be confidential, the Court of Appeal can still choose to order its communication if that information is required for the purposes of a trial. The court based its response to this choice on the rule of relevancy, which must be assessed broadly, especially when it comes to examinations on discovery. The Court of Appeal determined that in this case the information was relevant:  

[TRANSLATION][49] Even though this is not one of the most important elements of the dispute between the parties, it remains nonetheless one of the factors to be considered when deciding the existence and quantum of damages that Appellants may have incurred following publication of the article mentioned in paragraph 43 of the motion to institute proceedings. In order to be able to exercise their right to a full and complete defense, Respondents, I believe, are entitled to obtain the information contemplated by objections ODB-15, OWA- 3 and OWA-4.  

However, the Court of Appeal concluded with the finding that Justice Soldevila had taken insufficient measures to adequately protect the information’s confidentiality. The Court of Appeal ordered that the list of parents be communicated only to the lawyers, who were required to agree not to communicate the list to their client (Journal de Québec).  

Comments

It is interesting to see the Court of Appeal apply the notion of personal information in a practical framework where the information does not specifically identify the person concerned, but allows that person to be identified. This analysis should be monitored more closely in order to truly identify what constitutes personal information in a particular environment and to ensure compliance with the associated obligations incumbent on both private businesses and public bodies.

This decision should give public bodies’ food for thought about processing access to information requests in situations where simply crossing off names is not considered sufficient protection of personal information. Assessing context has become all the more important since GIFRIC.

As for the vast breadth of the notion of personal information, this decision closely parallels the Federal Court judgment rendered a year earlier in Gordon v. Canada (Health), 2008 FC 258, in which the court finds in favour of Health Canada regarding the latter’s response to an access to information request. Health Canada had provided the requested database, only it deleted the “province” field in the belief that this information would allow the persons concerned to be identified. The Federal Court declared that it was satisfied with Health Canada’s explanation, and applied the following standard (suggested by the Privacy Commissioner of Canada) to determine whether or not information is personal:  

[ORIGINAL ENGLISH] Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.

As for the communication of personal information, in the context of civil proceedings, GRIFIC is in keeping with civil law case law1 that maintains that the relevancy rule is the determining factor. But the courts have become increasingly aware that additional steps must be taken to protect personal and confidential information despite the existence of the implied rule of confidentiality of the contents of examinations on discovery held under the Code of Civil Procedure of Québec, as stated by the Supreme Court in Lac d'Amiante du Québec Ltée v. 2858- 0702 Québec Inc., [2001] 2 S.C.R. 743.

The broad notion of personal information, in GIFRIC as in Gordon, has been applied to information deemed to be highly sensitive, namely health information. It will be interesting to see whether this point of view will also be applied to less sensitive information. And when it comes to protecting information, one might do well to question the courts’ stance if the parties are not represented by counsel, seeing as courts cannot issue orders where the communication of information is restricted “for lawyers’ eyes only.”