Date: 20031127
Docket: A-31-03
Citation: 2003 FCA 462
CORAM: STRAYER J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
IMS HEALTH CANADA
Appellant
and
RONALD G. MAHEU
Respondent
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
Heard at Vancouver, British Columbia, on November 27, 2003.
Judgment delivered from the Bench at Vancouver, British Columbia, on November 27, 2003.
REASONS FOR JUDGMENT OF THE COURT BY:EVANS J.A.
Date: 20031127
Docket: A-31-03
Citation: 2003 FCA 462
CORAM: STRAYER J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
IMS HEALTH CANADA
Appellant
and
RONALD G. MAHEU Respondent
and
THE PRIVACY COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on November 27, 2003)
EVANS J.A.
[1] This is an appeal by IMS Health Canada from a decision of the Motions Judge allowing an appeal from a Prothonotary, who had ordered Ronald D. Maheu to provide security for costs pursuant to rule 416(1)(g) of the Federal Court Rules, 1998, SOR/98-106, in respect of an application for judicial review. The Judge's decision is reported as Maheu v. IMS Health Canada, 2003 FCT 1.
[2] The question in this appeal is whether the Judge erred in concluding that Mr. Maheu could not be required to provide security for costs in the underlying application for judicial review on the ground that the application was frivolous and vexatious because he had an improper motive for making the application: the furtherance of a commercial dispute with IMS, a business competitor of Mr. Maheu. In our view, the Judge did not err.
[3] Rule 416(1)(g) provides:
| Where, on the motion of a defendant, it appears to the Court that
(g) there is reason to believe that the action is frivolous and vexatious and the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so,
the Court may order the plaintiff to give security for the defendant's costs.
|
Lorsque, par suite d'une requête du défendeur, il paraît évident à la Cour que l'une des situations visées aux alinéas a) à h) existe, elle peut ordonner au demandeur de fournir le cautionnement pour les dépens qui pourraient être adjugés au défendeur :
g) il y a lieu de croire que l'action est frivole ou vexatoire et que le demandeur ne détient pas au Canada des actifs suffisants pour payer les dépens s'il lui est ordonné de le faire.
|
[4] Mr. Maheu had complained to the Privacy Commissioner alleging that IMS Health was selling information about physicians' prescribing practices without their consent, in breach of the Personal Information Protection and Electronic Document Act, S.C. 2000 c. 5 ("PIPEDA"). The Commissioner investigated the complaint and dismissed it on the merits. He concluded that the information in question was not personal information about the physicians for the purpose of the Act. Mr. Maheu made an application for judicial review of the Commissioner's conclusion that his complaint was not well founded.
[5] In determining whether there is reason to believe an application for judicial review to be frivolous and vexatious for the purpose of rule 416(1)(g), the Court is only entitled to consider whether there is any possibility that the application could succeed. Thus, if there was any possibility at all that Mr. Maheu might satisfy the reviewing Court that the Commissioner had erred in his interpretation of the words "personal information" in this context, it could not in law have appeared to the Court on a motion under rule 416 that there was reason to believe that the application was frivolous and vexatious.
[6] It is conceded that Mr. Maheu had standing to make his complaint to the Privacy Commissioner. If he had standing to complain to the Commissioner, then he surely had standing to seek judicial review of the Commissioner's disposition of his complaint. The Commissioner did not dismiss the complaint on the ground of the Respondent's motive, even though the Commissioner may decline to prepare a report if satisfied that a complaint is "trivial, frivolous or vexatious or made in bad faith": PIPEDA, paragraph 13(2)(d).
[7] It is, of course, within the discretion of the Court hearing an application for judicial review to determine what, if any, relief to grant, even if the applicant establishes a reviewable error. The motive of an applicant in making an application for judicial review might be relevant to the exercise of the remedial discretion. However, the possibility that the Court hearing the application for judicial review might so conclude cannot constitute a reason to believe that the application is frivolous and vexatious for the purpose of rule 416(1)(g).
[8] For these reasons, we are all of the view that the Motions Judge did not err in allowing the appeal and in reversing the Prothonotary's order requiring Mr. Maheu to provide security for costs in respect of his application for judicial review.
[9] Accordingly, the appeal will be dismissed with costs payable by IMS Health to Ronald G. Maheu.
(Sgd.) "John Maxwell Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:A-31-03
(APPEAL FROM AN ORDER OF TRIAL DIVISION DATED JANUARY 3, 2003 NO. T-1967-01)
STYLE OF CAUSE: IMS Health Canada v. Ronald G. Maheu et al.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 27, 2003
REASONS FOR JUDGMENT OF THE COURT:Strayer, JA: Noël, JA: Evans, JA
DELIVERED FROM THE BENCH BY:Evans, JA
APPEARANCES:
| Mr. T. Murray Rankin, Q.C. |
FOR THE APPELLANT
|
| Mr. Paul Bigioni |
FOR THE RESPONDENT - Ronald C. Maheu |
Mr. Steven J. WelchnerFOR THE RESPONDENT - Privacy Commissioner of Canada
SOLICITORS OF RECORD:
| Arvay Finlay, Victoria, B.C. |
FOR THE APPELLANT |
| Bigioni, Markham, ON |
FOR THE RESPONDENT - Ronald C. Maheu |
Nelligan O'Brien Payne, Ottawa, ONFOR THE RESPONDENT - Privacy Commissioner of Canada