PRIVACY |
Maheu v. IMS Health Canada
T-1967-01
2003 FCT 1, Lemieux J.
3/1/03
24 pp.
Appeal of Prothonotary's order requiring applicant to post security for costs pursuant to Federal Court Rules, 1998, r. 416 on ground reason to believe application frivolous, vexatious--Applicant president of Pharma Communications Group Inc. (Pharma)--Privacy Commissioner's report arising from complaint by applicant that information-gathering practices of IMS Health Canada (IMS) breaching Personal Information Protection and Electronic Documents Act-- Pharma and IMS business competitors collecting and analyzing prescription data and statistical health care information--Applicant contending IMS purchasing information taken from prescriptions without knowledge or consent of prescribing doctor--Privacy Commissioner concluding information collected by IMS not personal information about physicians and therefore not subject to protections of Act--Applicant applying for review of Privacy Commissioner's decision--Privacy Commissioner intervening to make argument on new legislation underpinning application at hearing of IMS's motion to strike out proceedings or for an order requiring applicant to post security for costs--IMS arguing application brought for improper purpose, to abuse Court's process by using review procedures of the Act to advance commercial interests and not to protect personal information--Prothonotary finding applicant abusing process of Court, although not so far as to warrant striking out application but enough to attract security for costs-- Prothonotary finding root of litigation is commercial matter-- Noting no decided cases determining whether Act extending to commercial dispute--Act establishing code for protection of personal information, setting out operating rules for private organizations in context of commercial activities--Relying on case law in bankruptcy field indicating that extending Act for arguably improper purpose, i.e. obtaining commercial advantage, not fair and honest use of Court's process and thus frivolous and vexatious--Prothonotary finding appearance of reason to believe Act used for collateral and improper purpose --Privacy Commissioner concerned that Prothonotary ruling on right of applicant to bring application--Submitting nothing in Act limiting complaint process to individuals directly affected; nothing prohibiting individual representing business from making complaint--Appeal concerning whether reason to believe application frivolous and vexatious--"Reason to believe action is frivolous and vexatious" lower and different standard than that required to strike out pleading--Standard of proof should be same as that contained in "reasonable grounds to believe," which is less than balance of probabilities but still connoting bona fide belief in serious possibility based on credible evidence--Prothonotary erring in law by misinterpreting Act when concluding reason to believe application for improper purpose, i.e. attempt to obtain commercial advantage--Prothonotary's finding possibly also affected by misapprehension of who was complainant before Privacy Commissioner--Complainant was individual having right to apply to Federal Court, Trial Division for hearing, following determination complaint not well founded, not Pharma Communications--Irrelevant that applicant's personal information not at stake--Act establishing code of conduct for organizations to collect, use or disclose personal information in course of commercial activities--Regulatory in nature-- Providing means of enforcement through complaints, Privacy Commissioner's investigation and report, and right of appeal to Federal Court--Application seeking determination whether IMS's practices comply with law--Irrelevant that applicant is President of Pharma Communications, competitor of IMS-- Disqualification of competitor from access to Act's enforcement mechanisms not contemplated by Parliament-- IMS not entitled to security for costs--Appeal allowed-- Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5--Federal Court Rules, 1998, SOR/98-106, r. 416(1)(g).