To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes. The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA.
Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.” Is a s. 44 examination subject to that exemption? The federal Office of the Privacy Commissioner has considered this exemption as being applicable to a wide range of processes. However, in keeping with the interpretation of the statute as conferring quasi-constitutional rights, the OPC has nevertheless required an element of formality to any process. For example, an insurance ombudsman was not subject to any formal process, and therefore the exemption did not apply: PIPEDA Report of Findings #2016-006. In that decision, the OPC described the formal process requirement as follows:
- The formal process requirement mandates the presence of a framework or structure, either legislated or agreed to by the parties to the dispute; in other words, the resolution of the dispute must take place in accordance with recognized rules.
Grievances and complaints have, in certain circumstances, been held to have sufficient formality to engage the exemption in clause 9(3)(d) of PIPEDA: Eg., PIPEDA Case Summaries #2003-147 and #2006-330.
Under the SABS regulation under the Insurance Act, the insurer will respond to an application for accident benefits with a notice of a s. 44 examination only in instances where the insurer refuses to pay, at least a refusal to pay or grant benefits without the examination. For example, under s. 45(3) of SABS, an insurer can respond to an application for catastrophic impairment status (and therefore a larger range of accident benefits) by (a) giving a notice determining that the impairment is catastrophic, or (b) by giving a notice determining that an impairment is not catastrophic, and, if the insurer requires, advising the claimant of the need to undergo a s. 44 examination. Thereafter, pursuant to s. 45(5) the insurer must provide a copy of the report within 10 business days and providing notice of the insurer’s decision on the catastrophic impairment. If the insured further contests this decision, the next step is an arbitration under s. 280(1) of the Insurance Act.
As personal injury lawyers know, the SABS process is extremely formal and is regulated by legislated rules. A s. 44 examination is not an open-ended private contractual process. It involves timelines, provision of personal medical records, and sanctions for failure to attend.
Although there is no specific decision on s. 44 SABS examinations, there are a large number of regulatory dispute resolution processes in Canada, and the OPC has not had an opportunity to decide on the application to them. The principle of statutory interpretation expressed in the Latin maxim, specialia generalibus derogant (also stated in the negative, generalia specialibus non derogant), means that the specific statute must prevail over the general. The legislative framework of PIPEDA is open to ceding the field to specific subject matter legislation, both federally and provincially. This means that an attempt to employ PIPEDA to get around a formal process under SABS should not be permitted.
Moreover, under s. 12(1) of PIPEDA, the OPC also has the discretion not to investigate a complaint if there already exists a procedure under provincial law to deal with the issue. While past results are not necessarily indicative of future results, Gilbertson Davis has previously obtained rulings from the OPC declining to intervene where there is an active SABS dispute.