by Written on behalf of Wise Health Law August 15, 2018 4 min read

A request was made of the Ontario government that they divulge the top 100 physician billers to the Ontario Health Insurance Program (OHIP). The request was for the years 2008 through to 2012. The doctor’s specialities and dollar amounts billed per annum were also sought. The Ontario Court of Appeal (OCA) confirmed the decisions below which had approved the request. As a result, the doctor’s gross billing and specialities information was disclosed.

Background:

The tale begins with the request from a Toronto Star reporter made to the Ministry of Health and Long Term Care (Ministry) pursuant to the Freedom of Information and Privacy Act (Act). An adjudicator from the Information and Privacy Commission (IPCO) approved the request. A judicial review was advanced to the Divisional Court which affirmed the decision . The Ontario Medical Association (OMA) and the affected doctors appealed to the OCA.

The Issues:

The central debate was whether the information sought was “personal information” as defined in section (2) (1) of the Act. If it was, it could not be disclosed except pursuant to section 21(1) of the Act, but only if the disclosure of the personal information did not constitute an unjustified invasion of personal privacy.

Purpose of the Act:

  1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

Definition of personal information:

2 (1) In this Act,

“personal information” means recorded information about an identifiable individual, including,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

(3) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

Is the request for personal information?

It was accepted throughout the litigation that the proper test was the two-step test as set out in Order PO-2225; Ontario (Rental Housing Tribunal), <2004 O.I.P.C. No. 8.>

(1) In what context do the names of the individuals appear?

(2) Is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual?

Both the adjudicator and the Divisional Court concluded that the questions should be answered as follows:
  • The context was clearly the provision of medical services which is the doctors business activity and their billing and receiving payment was a part of that business process and occurred in a context removed from the personal sphere;
  • The information sought did not reveal anything personal about the physicians; it was a business activity and did not reveal their actual income.

Appellant’s arguments:

The standard of review was accepted to be one of “reasonableness” of the decisions below. The question then was whether the adjudicator’s application of the two-step test was reasonable. The appellant's submitted it was not for the following reasons:
  • IPCO decisions in the past had concluded that physicians names were personal information and the adjudicator was bound by stare decisis to follow those precedents;
  • He failed to consider the Cory Report of 2005 which led to amendments to the Health Insurance Act;
  • He failed to consider the Charter of Rights privacy values which would be prohibit the disclosure of individuals names;
  • The presumption of prejudice in section 21(3) of the Act makes it clear that the disclosure of an individual’s name connected with their finances is prohibited. The fact that it reveals only gross income does not detract from it being personal information.

Analysis in the Court of Appeal:

  • The adjudicator is not bound by stare decisis. Tribunals, when acting within their jurisdiction, may solve problems in a way judged to be most appropriate;
  • This Cory Report was first raised at the Divisional Court. It dealt with audits of physicians billings and does not assist with the issues here;
  • Charter values are only considered where there is a real ambiguity in an Act and there is none here as the purposes of the Act are very clear. The Act clearly calls for a balance between disclosure and the protection of privacy;
  • As for the presumed invasion of privacy about an individual’s finances section 21(3)(f) provides:

Presumed invasion of privacy

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.

The adjudicator, in applying the second part of the test determined that the gross billings did not reveal anything of a personal nature about the individual. Gross billings do not reveal actual income after expenses. As there was evidence before the adjudicator that these expenses varied between the physicians and therefore their gross billings were not a reliable indicator of net income for any of them. It was not therefore personal information within the meaning of section 2(1) nor does it describe and individuals finances within section 21(3)(f). At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.


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