In Rousseau v. Canada (Privacy Commissioner), 2008 FCA 39 , the insured, Jacques Rousseau, had been receiving long-term disability benefits from Maritime Life.  A dispute arose as to his continued eligibility, and Maritime Life subjected Mr. Rousseau to an independent medical examination (IME) in accordance with the terms of its policy.  Dr. Jeffrey Wyndowe performed the IME.  The purpose and nature of the IME was explained to Mr. Rousseau, and he signed a consent form permitting disclosure of the doctor’s report to Manulife.

Based on the report, Manulife terminated Mr. Rousseau’s long-term disability benefits.

Manulife provided Mr. Rousseau with a copy of the report at Mr. Rousseau’s request, however it did not have access to the doctor’s notes.  Dr. Wyndowe refused to provide a copy of the notes to Mr. Rousseau.

Mr. Rousseau eventually applied to the federal Office of the Privacy Commissioner with respect to the doctor’s refusal, and the complaint was allowed, with the Commissioner recommending the release of the notes.  Dr. Wyndowe refused.

Mr. Rousseau applied further to the Federal Court Trial Division pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.  Mr. Justice Teitelbaum granted Mr. Rousseau’s application, and Dr. Wyndowe appealed to the Federal Court of Appeal.

Decary, J.A. reasoned that notes made by a doctor in the course of an IME made at the request of an insurance company falls within the purview of “commercial activity” by the insurance company and is therefore subject to the Act.   In addition, personal health information is a subset of “personal information”.  Notes taken by a doctor in the course of an IME are clearly personal health information, and therefore subject to disclosure upon application by the person about whom they pertain.

In that case, the Plaintiff was involved in a motor vehicle accident.  She received various soft tissue injuries and was prescribed physiotherapy as a result.  She underwent treatment for nearly 47 months following the accident, and all treatments were paid for either by her Section B insurer or by the Nova Scotia Medical Services Insurance program.

After that time, she was reassessed by her insurer’s medical examiner and by her own doctor.

The conclusion of the reassessment was that her treatments should continue.  When 4 years had elapsed since the date of the accident, her insurer refused further payment, even though over $10,000 remained under her Section B coverage limit.

In Nova Scotia, the relevant section of the Standard Auto Policy reads as follows:

Section B – Accident Benefit

The Insurer agrees to pay to or with respect to each insured person as defined in this section who sustains bodily injury or death by an accident arising out of the use or operation of an automobile:

Subsection 1 – Medical Rehabilitation and Funeral Expenses

(1) All Reasonable expenses incurred within four years from the date of the accident, as a result of such injury for necessary medical, surgical, dental, chiropractic, hospital, professional nursing and ambulance service and for any other service within the meaning of insured services under the Health Services and Insurance Act and for such other services and supplies which are, in the opinion of the physician of the insured
person’s treatment occupational retraining or rehabilitation of said person, to the limit of
$25,000 per person.  [emphasis added]

The Adjudicator found that even though certain treatments were given after the 4 year limit under the policy, and that those treatments would continue for some time thereafter, the insurer was still required to pay for them.

In doing so, the Adjudicator followed the Nova Scotia Supreme Court decision in MacLeod v. Lumbermen Mutual Casualty Company, 121 N.S.R. (2d) 146.  the Adjudicator’s reasoning was that where 4 years had elapsed from the date of the accident, the impugned Section B expense was “incurred” within the 4 year limitation when

1. they happen as a result of treatment given within 4 years of the accident;
2. they are part of an ongoing treatment plan, part of which was deferred to a later date; or
3. they are treatments which are certain to exist at some point past the 4 year limitation.

On the last point, the treatments must be a certainty, as opposed to mere speculation or possibility.  In addition, they must be mandatory treatment, and not treatments that are optional.

This reasoning is a reminder to counsel settling cases where ongoing treatment is anticipated.  If the plaintiff’s Section B coverage limit has not been exhausted, counsel should ensure that the Section B insurer contributes to the full extent of the proposed future treatment, up to its coverage limit.