Ontario Medical Association v. Ontario (Information and Privacy Commissioner)

CITATION: Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2017 ONSC 1650

DIVISIONAL COURT FILE NO’s.: 305/16; 306/16 & 312/16

DATE: 2017-03-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ONTARIO MEDICAL ASSOCIATION v. INFORMATION AND PRIVACY COMMISSIONER FOR ONTARIO and others

SEVERAL PHYSICIANS AFFECTED BY THE ORDER v. INFORMATION AND PRIVACY COMMISSIONER FOR ONTARIO and others

AFFECTED THIRD PARTY DOCTORS v. THERESA BOYLE (REQUESTOR) and others

BEFORE: NORDHEIMER J.

COUNSEL: J. Colangelo & J. Gold, for the applicant, Ontario Medical Association C. Dockrill, for the applicants, Several Physicians Affected by the Order L. Galessiere, for the applicants, Affected Third Party Doctors L. Murray, for the respondent, Information and Privacy Commissioner for Ontario P. Schabas, for the respondent, Theresa Boyle K. Chatterjee, for the respondents, The Honourable Eric Hoskins, Minister of Health and Long-Term Care and the Ministry of Health and Long-Term Care

HEARD at Toronto: March 10, 2017

ENDORSEMENT

[1] I have two procedural motions before me, all relating to three applications for judicial review. The underlying applications seek to review the order of an adjudicator, of the Information and Privacy Commissioner for Ontario, who ordered the release of records, held by the Ministry of Health and Long-Term Care, that would disclose the amount of the top 100 annual payments to physicians, under the Ontario Health Insurance Plan, for the years 2008-2012, along with the names and specialities of the physicians on those lists.

[2] The procedural motions begin with a motion from the IPCO that seeks the following relief:

(a) an order that the three applications for judicial review be heard at the same time;

(b) an order that the IPC may file one Record of Proceedings (“ROP”) for all three applications;

(c) an order that the parties to all three applications may file one set of materials in respect to all three applications;

(d) an order that the portion of the ROP identified as “PRIVATE” be sealed and not form part of the public record in these applications;[^1]

(e) an order that the portion of the ROP identified as “PUBLIC” shall form part of the public record in these applications, except for claimed confidential information that has been edited by the IPCO;

(f) an order determining which (if any) parties and/or their counsel will be granted access to the Private ROP, and;

(g) an order determining whether the unnamed applicants in Court File No. 306/16 and Court File No. 312/16 can continue to be identified as “Several Physicians Affected by the Order” and “Affected Third Party Doctors”, respectively, and whether the identity of those applicants must be disclosed to the Court under seal or otherwise.

[3] The other motion is brought by the applicants, Several Physicians Affected by the Order, for an order “recognizing and directing” that the Toronto Star is not a party to these proceedings, and an order striking the affidavit of Winnie Wong, that was filed on behalf of the respondent, Theresa Boyle.

[4] All of the parties agree with the relief that is sought in paragraphs (a) through (c) of the IPCO’s motion. It makes sense for these three applications for judicial review to be treated, and heard, as one matter, and for the parties to each file just one factum on those applications.

[5] While there was no general agreement by the applicants, initially, with respect to the relief that is sought in paragraphs (d) and (e), as the hearing progressed, general agreement was reached. It is common practice for the ROP in these types of proceedings to be split into a private portion and a public portion, because of the confidential nature of the information that the IPCO may deal with. It is also common practice for the private ROP to be sealed and the public ROP used for the purposes of the argument of the matter. In permitting this arrangement, the parties, of course, retain the right to challenge any editing that has been done by the IPCO, once they receive and review the public ROP.

[6] These normal arrangements notwithstanding, the court must always have access to the entire ROP, for the purposes of the hearing of these applications for judicial review. All of the material that was put before the adjudicator, whose decision is being reviewed, must be put before the reviewing court. Whether, and to what extent, any of the private portion of the ROP may be relevant to the judicial review, cannot be determined until the applications are heard. The fact that the private ROP may not need to be referred to, on the hearing of the applications, does not change the fact that the court cannot receive only a portion of the material, that was before the decision maker, when the decision is being reviewed.

[7] The applicants object to counsel, or the parties, having access to the private ROP. In my view, there is no sufficient reason, in this case, to prevent counsel from having access to the private ROP. My starting point for that conclusion is the basic principle that, if the court must have access to the entire ROP, then counsel must also have access to it: see, for example, Fuda v. Ontario (Information and Privacy Commissioner) (2003), 65 O.R. (3d) 701 (Div. Ct.) at para. 28. Except in the most extraordinary circumstances (confidential informant issues, for example), counsel for the various parties cannot be denied access to material, that the court may use to determine the matter, in which those parties are directly involved. It also does not make sense, from a practical point of view, to defer granting permission to counsel to have access to the private ROP, until an issue arises that requires the court to look at the private ROP. Waiting until that point in time would interrupt the proceedings, potentially for some period of time, while counsel familiarized themselves with the relevant contents of the private ROP. That would, in turn, create potential problems for the completion of the applications in a timely way.

[8] I appreciate, as is pointed out in Fuda, that exceptions may be made to this general approach. However, the information in issue here is not the type of information that is referred to in Fuda, such as police investigative techniques, or privileged material. By saying that, I do not diminish the privacy interests that the individual applicants may have in the information being sought. I am simply acknowledging the reality that there are always degrees of privacy involved, and consequently, degrees of protection required, depending on the nature of the information that is at issue.

[9] I appreciate the concern raised by the Ontario Medical Association about the potential for leaks of the information, if even counsel have access to the private ROP. However, that is a concern in any case where private information is involved. That possibility cannot be the only factor to be considered because, if it was, denial of access would be the norm, rather than the exception.

[10] In my view, this case falls within the usual type of case, with which the IPCO and this court are familiar, and which are normally dealt with on the basis that counsel will have access to the private ROP, on the signing of an appropriate undertaking. I am not persuaded that there is a sufficient reason, in this case, to depart from that usual approach.

[11] That said, there is still the issue whether access to the private ROP should expand beyond just counsel. In other words, should, in some circumstances, access include the client. In this case, counsel for the respondent, Boyle, seeks permission to have the in-house counsel, and the Managing Editor, of the Toronto Star, also have access to the private ROP. The respondent, Boyle, works for the Toronto Star, and she sought the information, at issue, for the purpose of her employment with the Toronto Star. There is no suggestion that Ms. Boyle, herself, would have access to it.

[12] When we come to this issue, the usual practice is different. It is not the usual practice to allow parties to have access to the information. Indeed, it is frequently a requirement, of counsel’s undertaking, that they will not reveal the information to their client. The reason for this is obvious. In many instances, revealing the private information to the client would undermine the very issue that is to be determined. It would be difficult, and generally not satisfactory, to pretend that clients would rid their minds of the private information, if the ultimate result of the application was an order maintaining the information as private. A further consideration, in terms of the recognition and enforcement of the undertaking, is that counsel are officers of the court; clients are not. The obligation to maintain the confidentiality of the information, and the consequences of not doing so, as between the two, is distinctly different. I say that without meaning, in any way, to call into question the integrity of the in-house counsel, or the Managing Editor, of the Toronto Star. I make this point as a general observation about clients being given access to such information.

[13] Another problem arises with respect to this request, and that is, that the Toronto Star is not a party to these applications. Theresa Boyle is the party. While I appreciate that Ms. Boyle is a reporter for the Toronto Star, is employed by the Toronto Star, and sought the information in that capacity, that does not change the fact that the Toronto Star is not a party. While I accept that there may be situations where the court would allow access, to the private information, not only to counsel but to the client as well, I have difficulty conceiving of a situation where the court would permit access to a non-party.

[14] In response to that concern, counsel for the respondent, Boyle, suggested that the Toronto Star could simply be added as a party to the applications for judicial rview. That suggestion did not find favour with the applicants. In any event, it would be inappropriate to add the Toronto Star as a party based simply on a request by counsel, and not as the result of a formal motion brought for that purpose.

[15] Lastly on this point, even if these other issues could be overcome, it is not clear to me, at this juncture, that there is a demonstrated need, for these two individuals, to have access to the private ROP, in order for counsel for the respondent, Boyle, to properly obtain instructions. I accept, for the purposes of this discussion, that the “real” client is the Toronto Star. None of the counsel (other than counsel for the IPCO) have seen the private ROP and, therefore, it is unknown whether any issues may arise where access to the private ROP, by clients, would be necessary in order for counsel to properly obtain instructions. In that respect, I view this request as premature. I conclude, therefore, that, at this stage, access to the private ROP should be confined to counsel for the various parties. If, at a later date, a situation presents itself whereby access by any client is seen as necessary, in order to properly address the main applications, a motion can be brought for that relief. If such a motion is brought, and it causes a need to add the Toronto Star as a party, a motion for that relief can be brought as well.

[16] The next issue raised is whether the two applicants “Several Physicians Affected by the Order” and “Affected Third Party Doctors” ought to be permitted to continue their two applications for judicial review, using those pseudonyms, without revealing their identities to anyone, including the court.

[17] None of the other parties take issue with the basic proposition that these physicians ought to be able to proceed, with their applications, without revealing their identities publicly, since, to proceed otherwise, would make the core issue raised in the applications moot. That rationale for permitting pseudonyms does not, however, extend to justifying the maintenance of anonymity to the court itself. In my view, no person should be able to utilize the court’s process without revealing their identity to the court. It is fundamentally inappropriate for the power and authority of the court to be invoked by an unknown person. There are a number of reasons for that conclusion. One is that the court must be satisfied that the person has a legitimate interest in employing the court’s process. For another, the court must know who the parties to a proceeding are, so that any order that the court might make can be enforced. For yet another, there may be relief granted by the court, a costs order for example, that another party will wish to enforce. How does another party enforce such an order, when no one knows who the first party is?

[18] In fairness, the applicants, Several Physicians Affected by the Order and Affected Third Party Doctors, ultimately accepted that their identities had to be revealed to the court. The issue became the extent of the information that had to be provided and what portions, if any, of that information would be required to be made public.

[19] In terms of the court, the names of all of the applicants must be provided along with confirmations from counsel that each of those applicants is a physician, whose name is listed in the records. The latter requirement is necessary since, if any applicant was not a physician, whose name is listed in the records, there would be an issue raised as to the standing of that person to seek judicial review of the adjudicator’s order. As a result, the names of the applicants are to be filed with the court, but under seal, and the information is to remain sealed unless, and until, the court orders otherwise. The confirmations, however, are to be provided to counsel for all of the parties.

[20] The respondent, Boyle, contended that other information, in addition to the confirmations, ought to be provided. She sought the medical specialty of each applicant physician; the number of applicants in the group that are male, the number that are female; and the number that identify as other, if applicable; and the number of applicants that practice in each Local Health Integration Network.

[21] On this issue, I start with the basic proposition that proceedings in our courts must be open to the public. That includes not only what goes on in courtrooms, but also all documents that are filed as part of the court process. As Fish J. said in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at para. 4:

It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. [emphasis in original]

[22] If these applications had been brought in the normal way, the identities of the physicians/applicants would be public, as would all other information relating to those applicants, as might be revealed by the materials filed in support of the applications. It would seem to me to be self-evident that, through that material, the gender of the applicants, their medical specialities, and where they practice, would be revealed for some, and likely all, of the applicants. Consequently, that information should be publicly available, unless there is a good and sufficient reason to make it private. I repeat that latter point. The question is not why the information should be made public. Public is the default position. The question is why the information should be made private. In answering that question, the Dagenais/Mentuck test is to be applied.[^2] That test, briefly stated, is whether secrecy is necessary in order to prevent a serious risk to the proper administration of justice, and whether the salutary effects of concealment outweigh the deleterious effects on the rights and interests of the parties and the public.

[23] I appreciate that information, other than names, may serve as identifiers of individuals. Recognizing that reality, it is not requested that this information be provided individually for each and every applicant. Rather, what is sought is generalized or categorized information. The individual applicants have failed to establish that generalized information, regarding the them, would, in any way, reveal their actual identities. By generalized information, I mean providing the above-noted information but not linked to the individual applicants. For example, if there were thirty applicants, providing the information that fifteen are male and twelve are female does not reveal who any of the individual applicants are. By way of another example, saying that fifteen are radiologists, and ten are neurosurgeons, and five are general practitioners, also does not reveal who any of the individual applicants are. By way of yet another example, saying that twenty practice in Toronto, five in Ottawa, and five elsewhere in Ontario, also does not reveal who any of the individual applicants are.

[24] In providing those examples, I implicitly offer two protections. One protection is that, to the degree that any of the applicants does not identify as male or female, that information does not have to be provided. While I acknowledge that, by simple arithmetic, the number in a category of “other” will be revealed, that number will not identify any individual person, so that privacy is protected. The other protection is that, insofar as any of these applicants are not from a large urban area, and thus someone might be able to figure out, in a small centre, who a physician is, because there are only one or two medical specialists of that type in the centre, that information does not have to be provided. The medical specialties information can be provided by categories reflecting the different large urban areas, and then the rest of the Province.

[25] That leaves the motion brought by the applicants, Several Physicians Affected by the Order, for an order “recognizing and directing” that the Toronto Star is not a party to these proceedings and an order striking the affidavit of Winnie Wong that was filed on behalf of the respondent, Theresa Boyle. I have already dealt above with the fact that the Toronto Star is not a party to these applications. There is no basis for the first relief sought, which is almost equivalent to a declaration. The parties to the applications for judicial review are clear from the title of proceedings in each application. It would be inappropriate to make any order regarding who is not a party.

[26] In terms of the Wong affidavit, it is an affidavit that was filed to put some material before the court. That is a common, if not always technically correct, practice. While there may be some argument about whether the Wong affidavit is properly filed, based on information and belief, the issue itself is of no moment. Nothing turns on that issue for the purposes of these motions and, in any event, Ms. Boyle subsequently filed an affidavit that confirmed the contents of the Wong affidavit. For both of those reasons, I decline to strike the affidavit.

[27] Two other issues should be addressed. One is the contents of the undertaking that is to be provided by counsel so that they can access the private ROP. I have not been provided with the proposed undertaking. However, it would seem to me that it ought to include the following terms:

(i) that the confidentiality of the contents of the private ROP will be preserved at all times;

(ii) the contents of the private ROP will be accessed only by counsel who are engaged on these applications and who have signed the required undertaking;

(iii) all information in the private ROP, that is not already in the possession of counsel, as of the date of the undertaking, shall be maintained in strict confidence throughout the proceeding, and the physical security of such materials shall be ensured;

(iv) it is expressly understood that no disclosure of the private ROP shall be made by counsel to his or her client, unless such disclosure is first authorized by the court, and;

(v) that, upon the expiry of the time period provided for under the Rules of Civil Procedure for any appeal from the disposition of the applications for judicial review, all copies of the private ROP, as well as all materials referring to any contents of the private ROP, which are subject to the undertaking, will be returned to the IPCO, or otherwise disposed of by order of the court.

[28] I appreciate that there may be other terms that are necessary and to which I have not referred above. I provide the above only in the hope that it will be of assistance. I assume that the parties can work out mutually acceptable terms for the undertaking but, if that proves to be a problem, counsel can arrange for the matter to be spoken to before me.

[29] The other matter is that I am directing the parties to file with the Divisional Court office, no later than the Friday prior to the hearing of the applications for judicial review, an agreed division of the time, as among the parties, that has been allocated for the hearing (two days or less).

[30] Finally, I assume that the parties will be able to craft the formal order based on the above. However, if any issues arise in that regard, or in the actual implementation of the order, I can also be spoken to.

[31] None of the parties sought any costs of the motions and, accordingly, no costs are ordered.

NORDHEIMER J.

DATE: March 13, 2017

[^1]: Notice of this motion was given to the media in accordance with the court’s process for so doing. [^2]: The test is derived from the decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442