CITATION: Several Physicians v. Information and Privacy Commissioner, 2016 ONSC 7386

DIVISIONAL COURT FILE NO.: 306/16

DATE: 20161128

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SEVERAL PHYSICIANS AFFECTED DIRECTLY BY THE ORDER Applicants

AND

INFORMATION AND PRIVACY COMMISSIONER FOR ONTARIO, THE HONOURABLE ERIC HOSKINS, MINISTER OF HEALTh AND LONG-TERM CARE, THE MINISTRY OF HEALTh AND LONG-TERM CARE and teresa boyle Respondents

BEFORE: NORDHEIMER J.

COUNSEL: A. Risk, for the moving party C. Dockrill, for the applicants L. Murray, for the respondent, Information and Privacy Commissioner for Ontario L. Favreau & K. Chatterjee, for the respondents, The Honourable Eric Hoskins and The Ministry of Health and Long-term Care P. Schabas & I. Fischer, for the respondent, Teresa Boyle

HEARD at Toronto: written submissions

ENDORSEMENT

[1] The moving party, the applicants, and the respondents, have all requested an order, on consent, adding another party to this judicial review application. The terms of the consent order sought would permit this individual to participate in the application without identifying his/her identity and would be added to the Title of Proceeding as “Another Physician Affected Directly by the Order”.

[2] I am not prepared to grant the consent order, at least not at this time, for two reasons. First, there is nothing in the material filed in support of the requested order that demonstrates that any members of the media have been given notice of this request. As was made clear by the Supreme Court of Canada many years ago in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, any form of publication ban should normally only be granted after members of the media have been given notice and have had the opportunity to make submissions. While the requirement for notice to the media is not absolute, it is the default, or standard, procedure.

[3] Second, there is a serious issue raised as to whether this application was properly commenced with the Title of Proceeding listing the applicants as “Several Physicians Affected Directly by the Order”. Even where the court gives permission for a party to proceed without identifying themselves, there is still a requirement that there be some information in the court file that would, if necessary, reveal who the ultimate party is, should that become relevant. As this proceeding currently stands, there no way for the court itself to determine who the applicants are, or even how many applicants there are.

[4] Consequently, the parties are directed to file a formal motion to be brought before me, not only to address the request to add the proposed party, but also to address the issue surrounding the current description of the applicants in the Title of Proceeding. Notice of the motion shall be given to the media in accordance with the court’s Consolidated Provincial Practice Direction respecting requests for publication bans. A date for the hearing of that motion can be arranged by counsel through the Divisional Court office.

NORDHEIMER J.

Date: November 28, 2016