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opinion Privacy Act, somehow this would not be applicable to PIPEDA. This argument is difficult to countenance given the stat- utes are so clearly in pari materia. In light of this unanimous decision, therefore, the 2008 Federal Court of Ap- peal's Wyndowe v. Rousseau must be ad- dressed. There, another unanimous pan- el concluded that an individual receiving disability benefits from an insurer had the right of access to portions of the handwritten notes of a doctor retained by that insurer to perform an indepen- dent medical evaluation. The individual complained to the privacy commission- er when the physician refused to disclose his notes. Since the case involved access to one's medical records, the court had no trouble proclaiming that "the PIPED Act is to provide new privacy protections to Canadians not otherwise enjoyed un- der the common law." The notes taken by the physician were held to form part of the medical records of the person being examined; given the sensitive nature of the information at is- sue, this conclusion is hardly startling. The air traffic controllers case was not cited by the court. What is noteworthy is that, despite the fact that the "work product information" argument was not advanced directly by the physician, the court nevertheless addressed the concept as a "preliminary observation." The court stated that it would be "at least premature for the appellant and unwise for this court to rely on an implicit ex- clusion of 'work product information' from the definition of 'personal infor- mation' [in PIPEDA]." In effect, even in the absence of arguments from counsel, the court appeared to go out of its way to invite the government to provide an explicit definition of "work product in- formation" in PIPEDA, on the basis that the court was not the proper forum in which to do so. So where are we now? The most recent pronouncement of the Federal Court of Appeal, while not inconsistent with the earlier air traffic controllers case, dem- onstrates a continuing need to come up with a clearer answer to the question: how do we treat "work product informa- tion" in federal privacy legislation? The case-by-case evolution in this area has simply not provided the clarity that even the government has acknowledged to be essential. Therefore, PIPEDA should be amended to follow B.C.'s lead and clarify that "work product information" has no place in privacy legislation. As is the case in British Columbia, in the event of a complaint, an explicit definition in the act would provide the federal privacy commissioner with the policy parame- ters within which to determine whether the information at issue fits definition. On May 2, 2007 the Commons stand- ing committee on access to information, privacy, and ethics reached the same conclusion. It recommended "PIPEDA be amended to include a definition of 'work product' that is explicitly recog- nized as not constituting personal infor- mation for the purposes of the act." The government thought there needed to be further consultation before it could ac- cept the unanimous recommendation of the committee. It said it needed to con- sider "the risk of any unintended nega- tive consequences to privacy that may result from an exemption of work prod- uct information" — even though there have been no such problems at all under the B.C. legislation, and even though the government itself acknowledged "the call from private sector interests to provide more clarity and certainty to PIPEDA in this area in order to facilitate business planning and to assist them in their efforts to comply with the act." If there were really were "unintended negative consequences to privacy" that were somehow triggered by a legislative "work product information" exclusion, they could be readily addressed in the drafting process. Once again, this should not be one of the difficult privacy issues in PIPEDA. Although it may be surprising that it still calls out for legislative clarification, it clearly does. Murray Rankin is a partner in the Vic- toria office of Heenan Blaikie LLP. He has written and lectured extensively on PIPEDA. We stay on top of the rules British Columbia Annual Criminal Practice, 2009 Edition The Honourable Justice John C. Bouck, Ravi Hira, Q.C., The Honourable Justice William F. Ehrcke and The Honourable Judge Carol Baird Ellan This authoritative guide equips you for court with annotations and case law examples of the Acts and Rules, guiding you quickly and efficiently through the criminal process in British Columbia. 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