Comments on: Has a recent Queen’s Bench decision put the damper on future complaints of privacy breaches in Alberta, especially in the health care setting? http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/ Tue, 07 Sep 2010 02:52:02 +0000 http://wordpress.org/?v=2.3.3 By: anonymous http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-72219 anonymous Wed, 30 Sep 2009 11:21:05 +0000 http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-72219 To be complete, I really only care about fareness. Yes, we will agree to disagree. Dr. Lycka felt he was treated unfairly and appealed to the Court of Quenns bench. Mr Justice Verville agreed with Dr. Lycka and quashed the Privacy Commisioners decision. This will have implications for the Privacy Commissioners' office. You can state all you want about supposed errors. The facts remain and for now stand. To be complete, I really only care about fareness. Yes, we will agree to disagree. Dr. Lycka felt he was treated unfairly and appealed to the Court of Quenns bench. Mr Justice Verville agreed with Dr. Lycka and quashed the Privacy Commisioners decision. This will have implications for the Privacy Commissioners’ office.
You can state all you want about supposed errors. The facts remain and for now stand.

]]> By: Brian Seaman http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64669 Brian Seaman Wed, 24 Jun 2009 17:06:36 +0000 http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64669 Anonymous, I continue to assert the inapplicability of the decision in Brewer v. Fraser, Milner, Casgrain LLP because I think it is distinguishable because of the privative clause issue. In any event, I think the QB judge in Lycka made a legal errors himself in: i) not granting deference to the Privacy Commissioner's interpretation of the relevant legislation; but more seriously, ii) in applying the correctness standard and finding the PC erred in his interpretation of relevant legislation, which of course the judge was able to do when he found that Lycka was denied procedural fairness by not knowing the names of the two complainants. On the other hand, in a different vein, were somebody to bring an allegation of professional misconduct against Dr. Lycka, indeed against any health care professional, then the identity of the complainant would be relevant because of the serious repercussions that would befall the health care professional if a finding of misconduct was made against that person. Since these repercussions could, depending on the seriousness of the allegation (egs: negligence or a sexual impropriety), involve the loss of a licence and thus the loss of a doctor's livelihood, then that would invite the need for the doctor's lawyer to cross-examine the complainant. Also, the seriousness of the allegation would invite, in accordance with a long line of judicial authority, a hearing that would be quasi-judicial in nature, with the various procedural requirements that are attendant to that. Also, an allegation of professional misconduct, of course, would not involve the Privacy Commissioner but the applicable professional standards board, (the Alberta College of Physicians and Surgeons, for example, if the complaint was against a doctor) and, of course, a different piece of legislation. Evidently, then, we are going to agree to disagree. I do appreciate the feedback though, because it indicates that somebody is reading my writing, and is concerned enough to care to write. Anonymous, I continue to assert the inapplicability of the decision in Brewer v. Fraser, Milner, Casgrain LLP because I think it is distinguishable because of the privative clause issue. In any event, I think the QB judge in Lycka made a legal errors himself in: i) not granting deference to the Privacy Commissioner’s interpretation of the relevant legislation; but more seriously, ii) in applying the correctness standard and finding the PC erred in his interpretation of relevant legislation, which of course the judge was able to do when he found that Lycka was denied procedural fairness by not knowing the names of the two complainants.

On the other hand, in a different vein, were somebody to bring an allegation of professional misconduct against Dr. Lycka, indeed against any health care professional, then the identity of the complainant would be relevant because of the serious repercussions that would befall the health care professional if a finding of misconduct was made against that person. Since these repercussions could, depending on the seriousness of the allegation (egs: negligence or a sexual impropriety), involve the loss of a licence and thus the loss of a doctor’s livelihood, then that would invite the need for the doctor’s lawyer to cross-examine the complainant. Also, the seriousness of the allegation would invite, in accordance with a long line of judicial authority, a hearing that would be quasi-judicial in nature, with the various procedural requirements that are attendant to that. Also, an allegation of professional misconduct, of course, would not involve the Privacy Commissioner but the applicable professional standards board, (the Alberta College of Physicians and Surgeons, for example, if the complaint was against a doctor) and, of course, a different piece of legislation.

Evidently, then, we are going to agree to disagree. I do appreciate the feedback though, because it indicates that somebody is reading my writing, and is concerned enough to care to write.

]]> By: anonymous http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64476 anonymous Mon, 22 Jun 2009 01:35:33 +0000 http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64476 Your perspective is indeed skewed, my friend. The file clearly proved Dr. Lycka's perspective and hence the ruling of the Privacy comissioner was over turned. Justice was denied because Dr. Lycka could not provide his documentation without reference to whom Jane Doe was. That my friend, is not justice. In fact, not one but two errors were found by the judge. Two legal errors were found by the presiding judge. Hence, the verdict overturned. In the future, the privacy commissioner will have to be more careful. If it were appealed, which I believe is not allowed by the legislation, the same result would occur. A person is entitled to know who his attacker is to launch a defence. A doctor keeps copious notes about his clients in order to defend himself. Without them, he cannot launch a proper defence. This is the primary problem with the privacy commissioner's decision hence the honorable judge overturned the privacy commisioner's decision. Your perspective is indeed skewed, my friend. The file clearly proved Dr. Lycka’s perspective and hence the ruling of the Privacy comissioner was over turned. Justice was denied because Dr. Lycka could not provide his documentation without reference to whom Jane Doe was. That my friend, is not justice. In fact, not one but two errors were found by the judge. Two legal errors were found by the presiding judge. Hence, the verdict overturned. In the future, the privacy commissioner will have to be more careful.
If it were appealed, which I believe is not allowed by the legislation, the same result would occur. A person is entitled to know who his attacker is to launch a defence. A doctor keeps copious notes about his clients in order to defend himself. Without them, he cannot launch a proper defence. This is the primary problem with the privacy commissioner’s decision hence the honorable judge overturned the privacy commisioner’s decision.

]]> By: Brian Seaman http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64034 Brian Seaman Tue, 16 Jun 2009 03:50:01 +0000 http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-64034 Hi anonymous. To equate these two breaches of personal privacy with rape, the most serious of sexual assaults, indicates a lack of knowledge of law, or a serious lack of perspective, or both. We don't have the benefit of the file before us, but, presumably, Dr. Lycka was provided with the evidence of the two persons in question having duly ticked off the forms indicating they did not wish to receive any unsolicited information. The names of the people would therefore be completely irrelevant to a determination of whether the doctor breached the pertinent portions of the Health Information Act and the Personal Information Protection Act. Also, this was not a question of "Jane Doe's interpretation" of the relevant legislation. That is the mandated duty, among others, of the Privacy Commissioner, who was owed a higher degree of deference than the court chose to give his office. You've said the law prohibits an appeal in this matter. You must be alluding to the 2008 decision of the Alberta Court of Appeal in Brewer v. Fraser, Milner, Casgrain LLP 2008 ABCA 160, a decision that I think is distinguishable from the present case on its both on facts and law, but especially law. The Brewer decision concerned an appeal from a decision of the Human Rights Commission, which gets its legislative authority from the provincial Human Rights, Citizenship and Multiculturalism Act. There's no privative clause in the Human Rights Act, which means, essentially, an aggrieved party who disagrees with the decision of the Human Rights Commission has an automatic right to get a review of the decision. The Privacy Commissioner has a different statutory grant of authority. The most relevant act in the Lycka decision was the Health Information Act. In that act, there is a privative clause, which says that an order of the commissioner is final. Thus, there is no automatic right to a review; rather, an aggrieved party has to apply for a judicial review, which should mean that, in the absence of a legal error, there should be no quashing of an order of the commissioner. Hopefully, this issue will come up before the Privacy Commissioner again. If it does, and the Commissioner isn't granted the deference his office is owed in interpreting and applying the relevant privacy legislation I'd like to see the Commissioner launch an appeal. Hi anonymous. To equate these two breaches of personal privacy with rape, the most serious of sexual assaults, indicates a lack of knowledge of law, or a serious lack of perspective, or both. We don’t have the benefit of the file before us, but, presumably, Dr. Lycka was provided with the evidence of the two persons in question having duly ticked off the forms indicating they did not wish to receive any unsolicited information. The names of the people would therefore be completely irrelevant to a determination of whether the doctor breached the pertinent portions of the Health Information Act and the Personal Information Protection Act. Also, this was not a question of “Jane Doe’s interpretation” of the relevant legislation. That is the mandated duty, among others, of the Privacy Commissioner, who was owed a higher degree of deference than the court chose to give his office. You’ve said the law prohibits an appeal in this matter. You must be alluding to the 2008 decision of the Alberta Court of Appeal in Brewer v. Fraser, Milner, Casgrain LLP 2008 ABCA 160, a decision that I think is distinguishable from the present case on its both on facts and law, but especially law. The Brewer decision concerned an appeal from a decision of the Human Rights Commission, which gets its legislative authority from the provincial Human Rights, Citizenship and Multiculturalism Act. There’s no privative clause in the Human Rights Act, which means, essentially, an aggrieved party who disagrees with the decision of the Human Rights Commission has an automatic right to get a review of the decision. The Privacy Commissioner has a different statutory grant of authority. The most relevant act in the Lycka decision was the Health Information Act. In that act, there is a privative clause, which says that an order of the commissioner is final. Thus, there is no automatic right to a review; rather, an aggrieved party has to apply for a judicial review, which should mean that, in the absence of a legal error, there should be no quashing of an order of the commissioner. Hopefully, this issue will come up before the Privacy Commissioner again. If it does, and the Commissioner isn’t granted the deference his office is owed in interpreting and applying the relevant privacy legislation I’d like to see the Commissioner launch an appeal.

]]> By: anonymous http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-63772 anonymous Sat, 13 Jun 2009 02:14:21 +0000 http://ablawg.ca/2009/06/12/has-a-recent-queen%e2%80%99s-bench-decision-put-the-damper-on-future-complaints-of-privacy-breaches-in-alberta-especially-in-the-health-care-setting/#comment-63772 The case is this: Jane Doe accused Dr. Lycka of violating the laws of Alberta. Dr. Lycka could have defended himself if he knew who his accuser was - he could have accessed his chart to confirm or deny the accusations. But the privacy commissioner denied him this right. It is akin to a person being charged with rape, without knowing his accuser. It is impossible to defend such as situation. It is for this reason the judge ruled against the privacy commissioner - he denied Dr. Lycka the ability to defend himself and in doing so denied hin justice. Is it possible the accuser was lying? Is it possible the accuser had ulterior motives? Could the accusor be a competitor to Dr. Lycka who wanted to cause him grief? The privacy commissioner did not have all the information but chose to accept Jane Doe's interpreation. That is not justice but rather prejudice. Also, the law prohibits an appeal from the privacy commissioners office. The case is this: Jane Doe accused Dr. Lycka of violating the laws of Alberta. Dr. Lycka could have defended himself if he knew who his accuser was - he could have accessed his chart to confirm or deny the accusations. But the privacy commissioner denied him this right.
It is akin to a person being charged with rape, without knowing his accuser. It is impossible to defend such as situation. It is for this reason the judge ruled against the privacy commissioner - he denied Dr. Lycka the ability to defend himself and in doing so denied hin justice.
Is it possible the accuser was lying? Is it possible the accuser had ulterior motives? Could the accusor be a competitor to Dr. Lycka who wanted to cause him grief?
The privacy commissioner did not have all the information but chose to accept Jane Doe’s interpreation. That is not justice but rather prejudice.
Also, the law prohibits an appeal from the privacy commissioners office.

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