Brandon Harder
Regina Leader-Post
Someone had concerns about Damon Giesbrecht being behind the wheel. He wanted to know who.
And while a judge previously ruled that SGI would have to fork over the confidential report it received, which questioned Giesbrecht’s fitness to drive, that decision has now been overturned by Saskatchewan’s highest court.
“[SGI] is entitled to fulfil the promise of confidentiality that it made to the person who submitted the Report,” reads a Jan. 28 decision.
The appeal decision, written by Chief Justice Robert Leurer, with Justices Neal Caldwell and Jeffery Kalmakoff in agreement, notes that this is due to a section of a provincial law called the Health Information Protection Act (HIPA).
The saga dates back to May of 2019, when Giesbrecht received a letter from SGI telling him he had to have his doctor fill out a medical report for him or his license would be suspended.
Giesbrecht was told the report was due within one month and needed to cover “any underlying medical conditions and use of prescribed or non-prescribed treatments which could be causing impairment of functional ability to drive — such as medical marijuana.”
He did as he was told and his licence was not suspended or restricted. But he wanted to know who’d sent the confidential report to SGI.
When a Court of King’s Bench judge ruled SGI needed to hand the report over, SGI appealed that judge’s decision.
HIPA specifies that information such as the report could be withheld from Giesbrecht if disclosing it “could interfere with a lawful investigation or be injurious to the enforcement of an Act or regulation.”
While the lower court judge considered this, he decided that such a report could only be withheld if disclosure “could interfere with an existing or identifiable prospective investigation.” The investigation into Giesbrecht’s fitness had concluded by the time he wanted to see the report.
Leurer wrote that the lower court judge got it wrong on that front.
Withholding information is permitted if disclosure “could interfere with any lawful investigation,” Leurer wrote.
“There is no requirement that the investigation be existing or presently identifiable.”
Further, the lower court judge did not rule correctly in relation to the word “could,” the appeal decision states.
It states that the lower court judge required SGI to prove that doctors or others would “avoid reporting on driver unfitness if their reports were not received in confidence.”
The law doesn’t require proof that something will happen, only that it could, according to Leurer. The law, he wrote, “requires simply that there is a possibility that this result could follow.”
Leurer’s own assessment of the evidence of the case led him to the finding that disclosure of the report “might interfere with future lawful investigations” into traffic safety violations and the ability to enforce traffic laws.
As a result, SGI won its appeal and now does not need to provide Giesbrecht with the report he sought.
