CITATION: Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 848

DIVISIONAL COURT FILE NO.: 445/22

DATE: 20230203

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DR. AKBAR KHAN, Appellant/Responding Party

AND:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and the ONTARIO PHYSICIANS AND SURGEONS DISCIPLINE TRIBUNAL, Respondent/Moving Party

BEFORE: Nishikawa J.

COUNSEL: Dr. Akbar Khan, in person

Amy Block for the Respondent/Moving Party, the College of Physicians and Surgeons of Ontario

HEARD at Toronto: January 31, 2023 (in writing)

ENDORSEMENT

Overview

[1] The Appellant, Dr. Akbar Khan, appeals from the findings and penalty decisions of the Ontario Physicians and Surgeons Discipline Tribunal (the “Tribunal”). The Respondent, the College of Physicians and Surgeons of Ontario (the “College”) brings a motion for an order that all exhibits before this Court which contain personal health information and information that could identify patients in this proceeding be treated as confidential, sealed, and not form part of the public record. The College also requests that the non-publication order imposed by the Tribunal of the College be continued before this Court.

[2] The College submits that the requested order is necessary to protect important public interests, namely the confidentiality of health records and personal health information or other identifying information of patients. In particular, the College seeks:

(a) An Order that the Exhibits identified in Appendices I and II and any appeal documents containing copies of the Exhibits (including Appeal Books and Compendia) shall be sealed and shall not form a part of the public record;

(b) An Order that the parties shall file two versions of the Exhibit Books and Appeal Books: one version which is to be complete and which is to be treated as confidential, sealed and which shall not form a part of the public record; and another version which is to form part of the public record, which is to omit all sealed Exhibits as listed in Appendix I, and which is to contain redacted versions of all sealed Exhibits as listed in Appendix II; and

(c) An Order confirming that the non-publication order under s. 45(3) of the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, issued by the Tribunal on January 20, 2020, remains in effect on appeal and applies to the materials and reasons on appeal; and

(d) An order confirming the parties are permitted to reference information contained in the sealed exhibits in their facta, provided the information does not identify patients in the proceeding, in accordance with the non-publication order under s. 45(3) of the Code.

[3] In November 2022, the College delivered notice to the media, as required under Part V of the Superior Court’s Consolidated Practice Direction. No material has been received from any member of the media in response to the notice or in opposition to the motion.

[4] The Appellant opposes the order sought by the College and requests a “redaction order” to protect patients’ identifying information. The Appellant’s position is that redaction will fully protect the privacy and confidentiality of personal patient information and that once the documents are redacted, a sealing order or publication ban would not further protect privacy or serve the public interest. The Appellant submits that a sealing order would preclude public scrutiny of a large number of documents and the Respondents’ alleged misconduct. The Appellant further submits that certain photographs that the College wishes to seal are already in the public domain.

[5] For the reasons that follow, the motion is granted.

Analysis

The Applicable Principles

[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.

[6] Under ss. 135 and 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court may impose an order requiring that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

[7] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[8] All three requirements must be met for a limit on court openness to be ordered.

Application

[9] The evidence that was before the Tribunal that the College requests be subject to a sealing order includes exhibits that contain personal information and personal health information regarding patients of Dr. Khan and their family members. This includes medical records, OHIP billing records, and photographs of patients obtained by the College during investigation. The records contain extensive, sensitive personal health information. In addition to highly personal medical information, the records include identifying and sensitive information such as OHIP numbers and personal addresses. The identities of the patients to whom these records relate are subject to the non-publication order made by the Tribunal.

Court Openness Poses a Serious Risk to an Important Public Interest

[10] In Sherman Estate, at para. 73, the Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.” The Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner”: Sherman Estate, at para. 79. Patient health information, which is ordinarily confidential, strikes at the biographical core of an individual and is “sufficiently sensitive” to warrant the order sought: Sherman Estate, at para. 35.

[11] The confidentiality of patient records and of individuals’ personal information (including health information) is an important public interest. The importance of maintaining confidentiality of health records is enshrined in legislation, such as the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A (“PHIPA”), which permits disclosure of personal health information (including OHIP numbers) only in limited circumstances. Confidential patient health information strikes at the biographical core of an individual and is sufficiently sensitive to warrant the order sought: Sherman Estate, at para. 35.

[12] In this case, there is also a public interest in ensuring that confidential records obtained by the College by virtue of its statutory investigative powers remain protected. To fulfil its public protection mandate, the College has been granted sweeping powers to obtain records, including confidential personal health information “despite any provision in any Act relating to the confidentiality of health records.”: Code, s. 76(4). Confidential patient records may be obtained by the College and entered into evidence without the patient’s knowledge or consent. The public expects that, except in limited circumstances, their medical records will remain confidential: Osif v. College of Physicians and Surgeons of Nova Scotia, 2008 NSCA 113, at para. 22. This gives rise to a heightened duty to protect the privacy interests of patients and other third parties who have no say in whether their personal health information forms part of the evidentiary record.

[13] The Divisional Court has recognized that sealing orders respecting confidential patient medical records are routine in cases involving discipline of health professionals: Dr Kadri v. College of Physicians and Surgeons, 2020 ONSC 5296, para. 7.

[14] Accordingly, I am satisfied that court openness poses a serious risk to an important public interest.

The Order Sought is Necessary to Prevent This Serious Risk

[15] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.

[16] The Appellant submits that a redaction order would be sufficient to protect the patient information.

[17] The College submits that in this case, redaction is not feasible because of the volume of patient records and the risk of omitting to redact personal identifying information. The College has sought to distinguish those documents for which redaction is possible, which would be available in the public record (Appendix II), and those for which it would not be (Appendix I).

[18] The exhibit book consists of almost 4,500 pages containing numerous patient records with identifying information. In Osif, at para. 33, the Nova Scotia Court of Appeal found that redaction of such records was “neither a practical nor reasonable alternative.” In this case as well, the process would be time-consuming, subject to error and would delay the hearing of the appeal, which is scheduled to proceed in a couple of weeks.

[19] As a result, I am not satisfied that there are reasonable alternative measures available that would prevent the risks identified above. In fact, by categorizing the exhibits into those that can be redacted (Appendix II) and those that cannot (Appendix II), the College has proposed a reasonable alternative to sealing the entire record.

The Benefits Outweigh the Negative Effects

[20] In my view, the benefits of the order requested by the College outweigh the negative effects.

[21] First, a sealing order will protect the public disclosure of information identifying patients and their sensitive personal health information.

[22] Second, the negative effects of the order proposed are few. The College does not seek a sealing order over the entire record but has limited the documents for which a sealing order is sought to those that cannot be disclosed, even in redacted form because they contain sensitive personal health and identifying information (Appendix I). The public interest in open and accessible court proceedings does not extend to having access to individual patients’ clinical records or other sensitive personal information. Moreover, it is unlikely that the medical records at issue would be readily comprehensible to lay members of the public.

[23] The public will have access to those records that can be disclosed in redacted form (Appendix II) and the transcripts of the hearing before the Tribunal. The College further requests that the parties be permitted to refer in their facta to information contained in the sealed exhibits, as long as the information does not identify patients, in accordance with the non-publication order granted by the Tribunal under s. 45 of the Code. Needless to say, a complete record, including the sealed documents, will be available to the court.

[24] The hearing of the appeal would be open to the public and the media would be able to be present at the hearing and report all aspects of the case, besides the identities of patients and their family members, and their personal health information. The values underlying freedom of expression, including truth-seeking, would remain unimpeded: Osif, at para. 33. While the Appellant argues that a sealing order would shield the College’s misconduct from public scrutiny, he has not demonstrated how patient identities and personal health records would shed light on the College’s conduct.

[25] I do not accept the Appellant’s argument that a publication ban is not necessary because at least one document is already in the public domain. The photograph appears to have been published in breach of the publication ban ordered by the Tribunal.

[26] Similarly, I do not accept the Appellant’s submission that the records should be publicly available as a source of instruction to the medical community. The court file is for the purposes of adjudicating this proceeding in a manner consistent with the open court principle. Moreover, disclosure of patient records is permitted only in limited circumstances as set out in PHIPA.

[27] In my view, the order sought is as narrow as possible in the circumstances and protects the personal health information of patients while minimizing the impact on freedom of expression and the open court principle.

Conclusion

[28] Based on the foregoing analysis, the three parts of the Sherman Estate test have been met. The motion for a sealing order and continuation of the non-publication order of the Tribunal is granted.

[29] No costs of the motion were sought and none are ordered.

“Nishikawa J.”

Date: February 3, 2023