Applicant needed leave to appeal interlocutory ruling, court says
The Court of Appeal for Saskatchewan has quashed an appeal involving access to records from a critical incident investigation, finding the applicant required leave to appeal from an interlocutory decision of the Court of King’s Bench and had not obtained it.
The dispute in Gordon Estate v Regina Qu’Appelle Regional Health Authority, 2026 SKCA 83 arose after the Regina Qu’Appelle Regional Health Authority withheld some records the applicant requested, including records relating to a critical incident investigation conducted under The Regional Health Services Act.
The Health Authority maintained that the withheld records were protected by statutory privilege under s. 58 of the Regional Health Services Act or s. 10 of The Evidence Act. The applicant appealed the Health Authority’s decision under s. 50 of The Health Information Protection Act, taking the position that the Health Authority was a trustee of the personal health information at issue.
Before the appeal proceeded, the parties sought a preliminary determination from the Court of King’s Bench. The judge was asked to determine whether the exceptions to the right of access to personal health information in s. 38 of The Health Information Protection Act formed a complete code, or whether a trustee could also rely on exceptions under other statutes, including The Evidence Act and The Regional Health Services Act.
The judge concluded that, assuming the records contained personal health information, s. 38 did not represent a complete code of exceptions that rendered other statutes meaningless. The judge noted that the questions of whether the requested records constituted personal health information and whether the Health Authority could successfully assert privilege under The Health Information Protection Act, The Evidence Act or The Regional Health Services Act would be determined later.
The applicant appealed that decision without seeking leave. The Health Authority then applied to quash the appeal under Rule 46.1(1)(a)-(d) of The Court of Appeal Rules.
The Court of Appeal held that leave was required because the King’s Bench decision was interlocutory. Although the decision resolved a legal question concerning the interaction between the access provisions of The Health Information Protection Act and exceptions under other statutes, the underlying question of whether the requested records would be disclosed remained unresolved.
The court also rejected the argument that Rule 7-1(5), which provides that a determination is final and conclusive for the action, converted the decision into a final order for appeal purposes. It said the rule does not confer appellate jurisdiction or alter the statutory requirement for leave under s. 8 of The Court of Appeal Act, which requires leave to appeal an interlocutory decision.
The court also declined to grant leave nunc pro tunc. It concluded the proposed appeal lacked sufficient merit and was “destined to fail.” The court further noted that the applicant had not sought leave when initiating the appeal, did not formally apply for leave nunc pro tunc, and had been given notice by the Health Authority that the requirement for leave was an issue.
Ultimately, the court granted the Health Authority’s application to quash the appeal and awarded it costs, with certain items excluded as duplicative or relating to an appeal that was not argued.
