The public has the right to know the names of the Ontario physicians who bill the most. This was stated by the Ontario Court of Appeal (the "Court") in its August 3, 2018 decision in Ontario Medical Association v. Ontario (Information and Privacy Commissioner) . The Court upheld the decision of the Information and Privacy Commissioner (the "IPC") to disclose the names of the physicians who charge the most, considering that business or professional income of a person did not constitute "personal information" within the meaning of the Freedom of Information and Protection of Privacy Act (the "Access to Information Act").

CONTEXT

In 2014, Theresa Boyle, a Toronto Star reporter , turned to the Ontario Ministry of Health and Long-Term Care (the "Ministry") to obtain the names and specialties of the 100 doctors who the most invoiced during the years 2008 to 2012, as well as the amounts they invoiced. The ministry provided anonymized billing amounts and some specialties, but declined to disclose the names of the doctors.

Under the Access to Information Act, the public has a right of access to information held by the government unless it is the subject of an exception. The ministry refused to disclose the doctors' names because of the "personal information" exception.

DECISIONS OF THE COMMISSIONER AND THE DIVISIONAL COURT

Ms. Boyle appealed the department's decision to the IPC, which also heard arguments from the Ontario Medical Association ("AMO") and some physicians involved. In 2016, an IPC mediator overturned previous decisions, in which the "personal information" exception had been applied to the amounts billed by physicians, and stated that the names should be disclosed, decisions made in other contexts distinguishing between business income and personal income.

The OMA and the affected physician groups filed an application for judicial review with the Divisional Court, which concluded that the IPC's decision was reasonable.

DECISION OF THE COURT OF APPEAL

The AMO and the doctors appealed the decision to the Ontario Court of Appeal, arguing that the IPC had erred for no reason from the decisions it had made previously and in which the amounts charged by the physicians were considered personal information, misinterpreted the Access to Information Act, and failed to consider the importance of privacy protection in the context of the Privacy Act. Canadian Charter of Rights and Freedoms .

The Court rejected these arguments unanimously, stating as follows:

"In our view, where, as is the case here, a person's gross business income or gross professional income is not a reliable indicator of his or her actual income or finances, It is reasonable to conclude not only that the billing information is not personal information ... but also that it does not describe 'the finances [or] actual income of a person'. "

CONSEQUENCES

The decision of the highest court in Ontario confirms the limited application of the "personal information" exception to questions that are inherently personal, and highlights the public interest in information relating to government expenditures. This decision is consistent with the objective of access to information legislation, which is to increase openness, transparency and accountability of government.

Theresa Boyle was represented in the Court of Appeal by Paul Schabas, Iris Fischer and Skye Sepp, lawyers for Blakes.

We wish to acknowledge the contribution of Paul Schabas to this publication.