APPEAL COURT ENDS SECRECY OF PAYMENTS TO ONTARIO’S TOP-BILLING DOCTORS

‘We do not accept these submissions’

In another chapter of a four-year legal battle that began with a Star Freedom of Information request, the province’s top court has paved the way for physician-identified OHIP payments to be made public, ruling against the doctors’ argument that the information would be an invasion of personal privacy

Ontario’s highest court has dismissed an appeal from doctors to keep secret how much the top OHIP billers are paid from the public purse.

In a unanimous decision released Friday, the Court of Appeal for Ontario rejected all arguments from three doctors’ groups, including the Ontario Medical Association, which have been trying to block the Toronto Star from learning the identities of the highest paid doctors.

“We do not accept these submissions,” a three-judge panel wrote in reference to all arguments made by the doctors who were seeking to have a unanimous lower court decision overturned.

The doctors’ main argument was that physician-identified OHIP billings constitute “personal information” and that their release would be an “unjustified invasion of personal privacy.”

But the appeal court found otherwise, noting that business revenue is not the same as personal income.

Out of their gross revenue, physicians pay office, personnel, lab equipment, facility and hospital expenses.

“In our view, where, as here, an individ- ual’s gross professional or business income is not a reliable indicator of the individual’s actual personal finances or income, it is reasonable to conclude not only that billing information is not personal information … but also that it does not describe an individual’s finances (or) income,” the 10-page decision states.

“As a result, we are not persuaded that … the adjudicator erred in concluding that the billing information was not personal information,” continues the ruling by Associate Chief Justice Alexandra Hoy, and Justices Paul Rouleau and Mary Lou Benotto.

The decision marks a key chapter in the more than four-year quest by the Star to get access to the names of doctors who receive the most money from the taxpayer-funded Ontario Health Insurance Plan. The battle started with a Freedom of Information request to the health ministry and was followed by three appeals, including the most recent one, all of which favoured the Star.

The Star’s lawyer, Paul Schabas, said that Friday was a “good day” for access to information.

"This (information) request serves only as a distraction from a . . . health-care system which, for the past six years, has failed to put patients first." NADIA ALAM OMA PRESIDENT "The court clearly finds that, like everyone else who receives money from the government, the public has a right to know and question payments to doctors." PAUL SCHABAS LAWYER FOR TORONTO STAR OHIP continued on A14

“The decision is a clear rejection of the assertion that doctors are somehow different. The court clearly finds that, like everyone else who receives money from the government, the public has a right to know and question payments to doctors.

“That’s good for government accountability and democracy. Which is why we have access to information laws.”

The first appeal ruling came in June 2016 when John Higgins, an adjudicator with the Office of the Information and Privacy Commissioner of Ontario, found in favour of the Star in ordering that the names be released. He wrote in his decision that public disclosure is in the best interest of transparency and accountability.

But the doctors sought a judicial review of the order, arguing that Higgins erred by departing from previous decisions by the information commission, which found that names constitute personal information.

The Ontario Divisional Court last year denied the doctors’ re- quest to quash the information commission’s order. And now the Court of Appeal has upheld the lower court’s ruling.

Both courts awarded costs to the Star, the most recent in the amount of $25,000.

Lawyers representing the doctors said they are reviewing the latest court decision and are uncertain whether they will seek leave to appeal to the Supreme Court of Canada. Because decisions of the nation’s highest court are final, such an appeal would be a last resort for the doctors.

The names of the highest billing doctors will remain under wraps until the next legal steps are decided.

However, according to ministry data, in one fiscal year alone — 2012-13 — the top 100 billers took in a combined $191million. The highest biller alone claimed more than $6 million, while the second and third highest billers each claimed more than $4 million. Nineteen doctors received payments of more than $2 million each.

In a written statement, OMA president Dr. Nadia Alam said that publishing physician bil- lings without context does not paint an accurate picture of the physician pay structure.

“On average, 30 per cent of a doctor’s gross pay goes to overhead. Doctors pay staff salaries out of billings and employ nearly 100,000 people across the province. We cover the costs of our infrastructure, equipment, out-of-hospital operating rooms, and everything right on down to chairs, desks and examining tables. “None of this is mentioned when an Excel sheet is printed in a newspaper to generate clicks. This request serves only as a distraction from a bureaucratic and inefficient health-care system which, for the past six years, has failed to put patients first.”

In the past, the OMA has said that the public would not understand the difference between physician income and OHIP payments.

The OMA represents 28,100 practising physicians in the province.

The other two doctors’ groups involved in the case describe themselves as “Several Physicians Affected Directly by the Order” and “Affected Third Party Doctors.”

The Star had to argue a motion in Divisional Court to learn more about the membership of these two latter groups. They are made up of a total of 34 doctors, all of them men, more than half of whom practise in the GTA. Approximately onethird are radiologists and another third are ophthalmologists. These specialty groups are among the top OHIP billers.

The case originated in early 2014 with a Freedom of Information request from the Star to Ontario’s health ministry for physician-identified data on the top 100 OHIP billers.

In its FOI request, the Star asked for physician-identified billing data on the top 100 billers for the most recent five years available, which back then was 2008 to 2012, inclusive. The request captures about 160 doctors.

Requests for billing data have been made by media outlets for decades. The ministry responded to the Star’s request the same way it had to previous requests. It granted partial access — payments and most medical specialties — but withheld physician names, deeming their release would be an unjustified invasion of privacy.

This time the Star decided to appeal the decision to the information commissioner, arguing there is a public interest in disclosure of the names.

Other jurisdictions already release physician-identified billing data annually. New Brunswick began doing so last year, the United States in 2014 (for Medicare payments), Manitoba in 1996 and British Columbia in 1971.

The Court of Appeal’s decision is significant because it will likely affect how much data on physician billings can be released in future. Pending the outcome of this case, the information commissioner has put on hold another appeal by the Star, this one seeking the release of physician-identified billings for all Ontario doctors.

OHIP from A1