Gordon v. Canada (Health), 2008 FC 258

June 2014

Summary: The Privacy Act defines personal information as information “about” an “identifiable” individual. In this case, the Federal Court decided that 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.

Facts: A reporter from the CBC made an Access to Information Act request for the Canadian Adverse Drug Reactions Information System (“CADRIS”) database maintained by Health Canada. CADRIS is a database containing information collected by Health Canada relating to suspected adverse reactions to health products marketed in Canada. Information regarding these reactions is collected on a voluntary basis through reports by health professionals and consumers, and on a mandatory basis from drug manufacturers. CADRIS contains approximately 125 data fields, with information about approximately 180,000 adverse reactions between 1965 and 2006.

Health Canada disclosed most of the fields in CADRIS to the CBC. It refused to disclose certain fields that directly identified individuals or for other reasons that were not contested. However, Health Canada also refused to disclose the “province” field, which referred to the province from which the report in question was received (not necessarily the province of residence of the individual who suffered the adverse health product reaction). Health Canada refused to disclose that field on the grounds that it could be used to identify the individual who suffered the adverse health product reaction. The Information Commissioner agreed with Health Canada, but the reporter applied to Federal Court to resolve the matter.

Result: The Federal Court agreed that the “province” field in combination with other publicly available information was personal information under the Privacy Act and should not be disclosed.

Decision: This case turned largely on the interpretation of the term “personal information” and what constitutes information “about” an identifiable individual. The Federal Court concluded that information is “about” an identifiable individual if it “permits” or “leads” to the possible identification of the individual, whether alone or combined with sources otherwise available – including sources publicly available. The Court summarized this principle as follows: “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.”

In this case, Health Canada filed three affidavits as evidence that the “province” field could be used to identify the individual who was the victim of the adverse reaction – particularly, but not exclusively, in smaller provinces or territories. The Court was satisfied that these affidavits were “substantial evidence that disclosure of the province field would substantially increase the possibility” that the individual could be identified.

The CBC also argued that the Minister of Health should have exercised his discretion to release the information because the public interest in releasing the information outweighed the privacy interests. The Court rejected that argument, refusing to second-guess the Minister’s good-faith discretionary decision.

Principles:

Information is about an identifiable individual – and therefore constitutes personal information – 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.

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