Judge denies doctors’ secrecy plea
The Star has been seeking the names of the top-billing physicians since 2014
The identities of the province’s topbilling physicians must be disclosed to the court, a Toronto judge has ruled, adding that details about some of them must also be made available to the public.
In a seven-page decision released Monday, Superior Court Justice Ian Nordheimer denied a request to keep the court and public in the dark about the doctors, pending a judicial review of an order from the province’s privacy commissioner to make the names public.
“The court must always have access to the entire (record of proceedings), for the purposes of the hearing of these applications for judicial review,” he wrote.
His decision is the latest development in a three-year quest by the Toronto Star for information on the 160 highest paid fee-for-service doctors.
In 2014, the Star filed a Freedom-ofInformation request to the province’s Health Ministry about the largest billers to the taxpayer-funded Ontario Health Insurance Plan.
The ministry provided information about medical specialties and payments, but denied access to physician names, reasoning the release would be an unjustified invasion of privacy.
(Payments to physicians are not the same as income as they do not take into account expenses for office rent, staff salaries and supplies.)
The Star successfully appealed that decision to the privacy commissioner. Now three separate groups of doctors are seeking a judicial review of the privacy commissioner’s order. It will be heard before a three-judge panel on June 19 and 20.
Last Friday, Nordheimer heard procedural motions, mostly related to how much of the court record should be kept under wraps, pending the outcome of the review.
Though it is unusual for anyone who commences a court proceeding to do so anonymously, in this case all parties agree the doctors should be permitted to proceed without publicly revealing their identities, otherwise the case would be moot. Lawyer Chris Dockrill, representing a group of doctors described only as “Several Physicians Affected by the Order,” argued that the names should also be withheld from the judges. He said their identities are not relevant to the judicial review and expressed a concern the judges could be compromised if they came across the names of any doctors they recognize.
But Nordheimer concluded the court must have access to the same material that the privacy commissioner’s office used to reach its decision. The relevance of the information cannot be determined until the judicial review is conducted, he said.
Nordheimer turned down a request from lawyers for two of three groups of doctors to proceed without revealing to the court the names of their clients or making public any details about them. To date, the two applicants have used pseudonyms: “Several Physicians Affected by the Order” and “Affected Third Party Doctors.” (The third group is the Ontario Medical Association, which represents the province’s 34,000 physicians and medical students.)
“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,” Nordheimer wrote.
He granted the Star’s request for public disclosure of details about the two groups using pseudonyms, namely the number of doctors seeking the judicial review, their specialties, gender and general information about where they work.
“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,” he wrote.
Nordheimer said the information should be provided in a “generalized and categorized” way so as not to identify any individual. He suggested, for example, that a breakdown be provided showing the total number of males, total number of females, total from each involved medical specialty and total from each geographic region.
Star lawyer Paul Schabas said he is happy with the decision:
“We’re pleased that Justice Nordheimer has treated the doctors like all other litigants and rejected their extraordinary demand to be secret — even to the court and counsel. His decision confirms the basic principle that if you want to use the courts, you have to tell the courts who you are.”