A reporter requested access to information pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F31 (the “Act”) relating to the top 100 physician billers under the Ontario Health Insurance Program, a breakdown of the physician’s specialties and the amount billed

Administrative law – Decisions reviewed – Privacy Commissioner – Compliance with legislation – Freedom of information and protection of privacy – Disclosure of records – Judicial review – Appeals – Standard of review – Reasonableness

Ontario Medical Assn. v. Ontario (Information and Privacy Commissioner), [2018] O.J. No. 4107, 2018 ONCA 673, Ontario Court of Appeal, August 3, 2018, A. Hoy A.C.J.O., P.S. Rouleau and M.L. Benotto JJ.A.

An adjudicator of the Information and Privacy Commissioner (“IOPC”) directed that the information sought should be released. After applying the two-step test in Order OR-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C No. 8, the adjudicator concluded that the information requested was not “personal information” within the meaning of the Act. The Ontario Divisional Court upheld the adjudicator’s decision.

On appeal, the parties agreed that the standard of review was reasonableness and the adjudicator appropriately applied the two step test. The Court of Appeal did not accept the appellants’ four arguments.

First, the court concluded that the adjudicator appropriately engaged with prior IOPC decisions and addressed the dichotomy in the jurisprudence. The Court rejected the argument that previous jurisprudence held that a physician’s personal identity could not be disclosed. The Court observed that previous decisions did not conclude that the top items billed amounted to “personal information”.

Second, the appellants’ argued that the adjudicator did not consider a report that resulted in amendments to the Health Insurance Act, R.S.O. 1990, c H.6. This report was only raised on appeal to the Divisional Court. The Court of Appeal was not prepared to criticize the adjudicator for not considering the report and, if the adjudicator did consider the report, it was not directly applicable to the issues on appeal.

Third, the Court did not accede to the argument that the adjudicator did not apply Charter values. The Court noted that the Charter values are only considered when there is “genuine ambiguity” in the legislation. The Court assessed the Act finding that Charter values were already balanced in section 1 of the Act.

Finally, the Court rejected the argument that releasing billing information would amount to disclosure of personal information in that it would reveal a physician’s personal finances. The Court held that when gross income is not a reliable indicator of actual personal finances, it is reasonable to conclude that only billing information is not “personal information” under the Act.

The Court dismissed the appeal with costs.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at [email protected].

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