Court Of Appeal Summaries (July 30-August 3)

There were only three substantive civil decisions released by the Ontario Court of Appeal this week.

In Ontario Medical Association v. Ontario (Information and Privacy Commissioner), the Toronto Star requested access to information from the Ministry of Health and Long-Term Care pursuant to the Freedom of Information and Protection of Privacy Act. The newspaper wanted to know the names of the top 100 physician billers to OHIP and their area of specialty. The OMA resisted the request on the basis that the names of the doctors was "personal information". The court upheld the Privacy Commissioner's decision to release the information, finding it not to be "personal information". In doing so, the court confirmed that administrative tribunals are not bound by stare decisis.

In a 2-1 decision in Janicek v Janicek (van Rensburg dissenting), the court upheld the application judge's interpretation of a will that left it to the estate trustees to determine to whom a farm property should be sold.

In 58 Cardill Inc v Rathcliffe Holdings Limited, the court upheld the trial judge's interpretation of a three-month interest prepayment provision in a mortgage that was enforced through a receiver. The mortgagee was not entitled to the three months' interest.

There were also several criminal law decisions.

CIVIL DECISIONS

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

[Hoy A.C.J.O., Rouleau and Benotto J.J.A.]

Counsel:

Joseph Colango 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 Shabas, Iris Fischer and Skye Sepp, for T. B.

William Challis, for the Information and Privacy Commission of Ontario

Keywords: Administrative Law, Stare Decisis, Privacy Law, Freedom of Information, Personal Information, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss 2, 21, Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8

Facts:

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 (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. An adjudicator assigned by the Information and Privacy Commissioner directed the Ministry to disclose the physicians' names, the amounts billed and the physicians' fields of specialization. The Ontario Medical Association and two groups of physicians appealed, arguing that a physician's name is "personal information" and thereby exempt from disclosure by s. 21(1) of the Act.

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): (1) In what context do the names of the individuals appear? (2) Is there something about the particular information at issue and, if disclosed, would reveal something of a personal nature about the individual?

At the first step, the Adjudicator determined that the context was the provision of medical services and that this was a professional activity because the submitting of bills to OHIP, and receiving payment, occurred in a context removed from the personal sphere. At the second step, the Adjudicator concluded that the information did not reveal something of a personal nature about the physicians. The payments were received in relation to a business and the amounts billed do not reflect actual personal income.

The appellants submit that the Adjudicator's application of the 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 prepared for the Minister of Health and Long-Term Care (the "Cory Report"), which resulted in amendments to the Health Insurance Act; (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 individual's finances is prohibited.

Issues:

Did the Adjudicator err in determining that the requested information did not constitute "personal information" within the meaning of s. 2(1) of the Act?

Holding: Appeal dismissed.

Reasoning:

No. Tribunals are not bound by stare decisis. The Adjudicator did not ignore the previous...