Executive Summary: Key Legal and Evidentiary Issues

• Whether SGI lawfully withheld a confidential medical report under section 38(1)(f) of The Health Information Protection Act (HIPA).

• Interpretation of “could interfere with a lawful investigation” under HIPA and whether it requires an ongoing or prospective investigation.

• Clarification of the evidentiary standard imposed by the word “could” in statutory exemptions.

• Assessment of whether SGI demonstrated an objective possibility of harm from disclosure.

• Evaluation of whether the lower court applied an incorrect legal standard and burden of proof.

• Determination that SGI’s confidentiality assurance was essential to effective enforcement under The Traffic Safety Act (TSA).

Facts of the case

The dispute began when Saskatchewan Government Insurance (SGI) received a confidential report in 2019 questioning Damon Giesbrecht’s medical fitness to drive. SGI, acting under its authority as administrator of driver licensing under The Traffic Safety Act (TSA), requested Mr. Giesbrecht to submit a medical report. He complied, and SGI determined no action was needed to restrict his licence.

Following this, Mr. Giesbrecht requested access to the original complaint under The Health Information Protection Act (HIPA), which gives individuals the right to access personal health information in the custody of a trustee, subject to exemptions. SGI declined the request, citing section 38(1)(f) of HIPA, which permits withholding disclosure if it “could interfere with a lawful investigation or be injurious to the enforcement of an Act or regulation.”

Mr. Giesbrecht initially pursued disclosure through the Saskatchewan Information and Privacy Commissioner, who recommended release of the report. When SGI declined, he appealed under section 50 of HIPA to the Court of King’s Bench. The Chambers judge ruled that SGI could not rely on section 38(1)(f), holding that the exemption applied only if an investigation was current or prospectively identifiable and if SGI could prove a likelihood of harm. The judge ordered disclosure and awarded costs to Mr. Giesbrecht.

Outcome of the appeal

The Saskatchewan Court of Appeal unanimously allowed SGI’s appeal and reversed the lower court’s disclosure order. The Court held that the Chambers judge had committed two errors of law.

First, the judge wrongly interpreted section 38(1)(f) as applying only to current or identifiable prospective investigations. The Court clarified that the statute contains no such limitation. Based on Supreme Court of Canada precedents (such as Lavigne and Ruby), the Court emphasized that statutory exemptions for lawful investigations are not restricted to ongoing or specific cases.

Second, the Court found the judge applied the incorrect standard of proof. Section 38(1)(f) uses the word “could,” which establishes a low threshold: SGI needed to show only an objective possibility, not a probability, that disclosure might interfere with a lawful investigation or enforcement. The judge had mistakenly required SGI to prove a more likely than not outcome.

SGI had submitted extensive evidence through affidavits and statistical data showing that confidentiality was vital to encouraging reports from medical professionals and other third parties. The evidence demonstrated that a lack of confidentiality could deter reporting, thereby undermining SGI’s ability to assess and enforce driver fitness requirements under the TSA. The Court found this evidence met the standard of an objective possibility of harm.

As a result, the Court upheld SGI’s refusal to disclose the report and rescinded the lower court’s cost order. However, acknowledging the public importance of the legal issues and the fact that key evidence was introduced for the first time in the lower court proceedings, the Court made no order for costs against Mr. Giesbrecht.

The final disposition: Appeal allowed; SGI not required to disclose the report.