



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673

DATE: 20180803

DOCKET: C64567, C64568 & C64569

Hoy A.C.J.O., Rouleau and Benotto JJ.A.

BETWEEN

C64567

Ontario Medical Association

Applicant (Appellant)

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 Theresa Boyle

Respondents (Respondents)

AND BETWEEN

C64568

Several Physicians Affected Directly By the Order

Applicants (Appellants)

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 Theresa Boyle

Respondents (Respondents)

AND BETWEEN

C64569

Affected Third Party Doctors

Applicants (Appellants)

and

Theresa Boyle (Requestor), Information and Privacy Commissioner of
    Ontario, The Honourable Eric Hoskins, Minister of Health and Long-Term Care, 
    (Respondent Head), Ministry of Health and Long-term Care (Institution)

Respondents
    (Respondents)

Joseph Colangelo and
    Jennifer Gold, for the Ontario Medical Association

Chris Dockrill, for Several
    Physicians Affected Directly By the Order

Linda Galessiere, for
    Affected Third Party Doctors

Paul Schabas, Iris Fischer
    and Skye Sepp, for Theresa Boyle

Heather Burnett, for the Minister
    of Health and Long-Term Care

William Challis, for the Information
    and Privacy Commission of Ontario

Heard: June 12, 2018

On appeal from the
    orders of the Divisional Court (Justices Frances P. Kiteley, Ian V.B. Nordheimer
    and David L. Edwards), dated June 30, 2017, with reasons reported at 2017 ONSC
    4090, affirming an order of the Information and Privacy Commissioner of
    Ontario, dated June 1, 2016, with reasons reported at [2016] O.I.P.C. No. 99.

REASONS FOR
    DECISION

Overview

[1]

A reporter for the Toronto Star requested access to information from the
    Ministry of Health and Long-Term Care (the Ministry) pursuant to the
Freedom
    of Information and Protection of Privacy Act
,
R.S.O. 1990, c. F.31 (the Act). She sought access to the
    names of the top 100 physician billers to the Ontario Health Insurance Program
    (OHIP) for the 2008 to 2012 fiscal years and a breakdown of the physicians
    medical specialties and the dollar amounts billed.

[2]

An adjudicator assigned by the Information and Privacy Commissioner (the
    IPCO and the Adjudicator) directed the Ministry to disclose the physicians
    names, the amounts billed and the physicians fields of specialization, if
    applicable. The Divisional Court upheld the Adjudicators order on judicial
    review.

[3]

The Ontario Medical Association (OMA) and two groups of physicians now
    appeal. They argue that a physicians name is personal information and
    thereby exempt from disclosure by s. 21(1) of the Act.

[4]

Section 21(1) states, in part: 
A head shall refuse to
    disclose
personal information
to any person other than the individual to whom the information relates
    (emphasis added). Section 21(1)(f) of the Act permits disclosure of personal
    information 
if the disclosure does not
    constitute an unjustified invasion of personal privacy.

[5]

Section 2(1) of the Act defines personal information as follows:

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 individuals 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.

Decisions Below

[6]

The Adjudicator determined that the requested information did not
    constitute personal information within the meaning of s. 2(1) and, therefore,
    the s. 21(1) exemption from disclosure did not apply.

[7]

In analyzing whether the records at issue constituted personal
    information, the Adjudicator applied the two-step test 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?

[8]

At the first step, the Adjudicator determined that the context was the
    provision of medical services. He concluded that this was a professional or
    business activity because submitting bills to OHIP, and receiving payment,
    occurred in a context removed from the personal sphere.

[9]

At the second step, the Adjudicator concluded that the information did
    not reveal something of a personal nature about the physicians. He emphasized
    that the payments received were in relation to a business or profession and the
    amounts billed and received do not reflect actual personal income.

[10]

The
    Divisional Court determined that the Adjudicators decision was reasonable and
    dismissed the application for judicial review.

Analysis

[11]

On
    appeal to this court, the appellants agree that the standard of review is
    reasonableness and that it was appropriate for the Adjudicator to apply the
    two-step test from
Ontario (Rental Housing Tribunal)
.

[12]

They
    submit, as they did before the Divisional Court, that the Adjudicators application
    of the two-step test was unreasonable because: (i) he departed from
    long-standing IPCO decisions concluding that physicians names are personal
    information and therefore did not apply
stare decisis
;
(ii) he failed to consider a report the
    Honourable Peter deC. Cory prepared for the Minister of Health and Long-Term
    Care in 2005 (the Cory Report), which resulted in amendments to the
Health
    Insurance Act
, R.S.O. 1990, c. H.6; (iii) he failed to consider
Charter
values; and (iv) the presumption of prejudice in s. 21(3) of the Act makes
    it clear that disclosure of a name in conjunction with an individuals finances
    is prohibited.

[13]

We
    do not accept these submissions.

[14]

We
    agree with the Divisional Courts conclusion that the Adjudicator was not bound
    by the principle of
stare decisis.
As Iacobucci J. explained in
Weber
    v. Ontario Hydro,
[1995] 2 S.C.R. 929, at para. 14:

Courts must decide cases according
    to the law and are bound by
stare decisis
. By contrast, tribunals are
    not so constrained. When acting within their jurisdiction, they may solve the
    conflict before them in the way judged to be most appropriate.

[15]

We
    also agree with the Divisional Court that the Adjudicator did not ignore the
    prior IPCO decisions. He made specific reference to these earlier decisions and
    observed that there was a split in the IPCOs jurisprudence. His decision
    addressed this dichotomy.

[16]

We
    reject the appellants argument that this courts decision in
Ontario

(Attorney
    General) v. Pascoe
(2002
),
    166 O.A.C. 88 (C.A.) stands for the proposition that a physicians identity
    cannot be disclosed. In that case, the IPCO was not satisfied that information
    as to the top ten items billed by the highest paid general/family practitioner
    in Toronto was personal information. The Divisional Court and this court
    agreed that the IPCOs decision was reasonable.

[17]

The
    appellants submit it is implicit in the courts decisions that had the
    physicians names been requested, this would have constituted personal
    information. We do not agree. The particular information at issue in
Pascoe
was different from the information sought in this case. The courts analyses
    are therefore inapplicable.

[18]

The
    appellants raised the Cory Report for the first time on appeal to the
    Divisional Court. It was not provided to the Adjudicator, nor argued before
    him. We agree with the Divisional Court that it is therefore difficult to
    criticize the Adjudicator for not referring to or relying on it. In any event,
    the Cory Report dealt with audits of physicians billings. That issue is not raised
    in this appeal, nor does it assist in this appeals determination.

[19]

The
    appellants further rely on the Adjudicators failure to consider
Charter
values.
    They argue that the protection of privacy is a fundamental value and the disclosure
    of physicians names would be inconsistent with this privacy value.

[20]

As
    the Supreme Court made clear in
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62, when interpreting a statute,
Charter
values are only considered in circumstances of genuine ambiguity. Far from
    being ambiguous, the purposes of the Act are clearly set out in s. 1:

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.

[21]

The
    balancing of access to information against the protection of individuals privacy
    with respect to personal information is therefore already built into the Act.

[22]

Lastly,
    the appellants submit that the Adjudicator erred by failing to implement the
    presumption in s. 21(3)(f) that information about a persons finances is
    private. That section 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 individuals finances, income, assets,
    liabilities, net worth, bank balances, financial history or activities, or
    creditworthiness.

[23]

Essentially, the appellants argue that, while s.
    21(3) only applies to personal information as defined in s. 2(1), it informs
    the interpretation of personal information and the Adjudicator erred by
    failing to have regard to it. They submit that the billing information sought
    describes a physicians finances or income and, because s. 21(3)(f) provides
    that disclosure of such information is presumptively an unjustified invasion of
    personal privacy, the only reasonable interpretation is that the billing
    information is personal information as defined in s. 2(1). They say that it
    is of no moment that the billing information reflects the gross revenue of the
    physicians practice, and not the physicians actual, personal income.

[24]

We do not agree.

[25]

The Adjudicator applied the second step of the
    test from
Ontario (Rental Housing Tribunal)

which
    involves looking to the nature of the information to determine if it would
    reveal something of a personal nature about the individual. The information
    sought was the affected physicians gross revenue before allowable business
    expenses such as office, personnel, lab equipment, facility and hospital
    expenses. The evidence before the Adjudicator indicated, however, that, in the
    case of these 100 top billing physicians, those expenses were variable and
    considerable. As a result, applying the second part of the
Ontario
    (Rental Housing Tribunal)

test, the Adjudicator concluded
    that disclosure of this billing information would not reveal something of a
    personal nature about the physician and was therefore not personal information.

[26]

In our view, where, as here, an individuals
    gross professional or business income is not a reliable indicator of the
    individuals actual personal finances or income, it is reasonable to conclude
    not only that the billing information is not personal information as per s.
    2(1), but also that it does not describe an individuals finances [or]
    income", for the purpose of s. 21(3)(f). As a result, we are not persuaded
    that s. 21(3)(f) demonstrates that the Adjudicator erred in concluding that the
    billing information was not personal information.

Conclusion

[27]

For
    these reasons, the appeal is dismissed with costs of $25,000.00 all-inclusive
    to the respondents in accordance with the agreement between the parties.

Alexandra
    Hoy J.A.

Paul
    Rouleau J.A.

M.L. Benotto J.A.


