Physician in Ontario? Your Annual Income Could Be Public Information.

The Court of Appeal for Ontario recently ruled that the public has a general right know the names of top billing doctors within the providence. In reaching its decision, the Court upheld the Information and Privacy Commissioner’s (IPC) decision to release the names of top billing doctors, finding that a person’s gross business or professional income is not ‘personal information” under the Freedom of Information and Protection of Privacy Act (FIPPA).

This case goes back to 2014, when Theresa Boyle, a reported for the Toronto Star, requested the names, specialties, and amounts billed to the Ontario Health Insurance Plan (OHIP) of the top 100 billing doctors for the years 2008 through 2012 from Ontario’s Ministry of Health and Long-Term Care. The ministry released billing amounts and some specialties but would not disclose the names of the doctors associated with the records, under the “personal information” exemption under FIPPA.

Boyle appealed the Ministry’s decision up to the IPC, which also heard submissions from the Ontario Medical Association (OMA) and affected doctors. Then, in 2016, and IPC adjudicator overturned the prior decision and held that the names should be disclosed. The adjudicator found that the record requested did not contain personal information and that there was no evidence that third-party harms would occur from the disclosure. However, even if either of those existed, the public interest override would apply. He believes that because the money received by physicians in a business or professional capacity is a gross income and not their net personal income, the information does not reveal “other personal information about the individual” as defined by s. 2(1) of FIPPA.

The OMA and groups of affected physicians then brought an application for judicial review to the Divisional Court, which upheld the IPC decision.

The OMA and affected doctors then appealed to the Ontario Court of Appeal, arguing that the IPC had not only misinterpreted FIPPA, but also had unreasonably departed from prior decisions that had found doctors’ billings were personal information and failed to take into account the value of privacy found in the Canadian Charter of Rights and Freedoms.

The Court unanimously dismissed the arguments, however, holding,

“In our view, where, as here, an individual’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 the billing information is not personal information… but also that it does not describe ‘an individual’s finances [or] income’”

This seems to mark the third providence where physician-identified billing data is public, as Manitoba and British Columbia have legislated the disclosure of such billing data. According to the IPC decision, where billing information is requested in the context of providing medical services in a professional and business capacity under OHIP, that information is removed from the personal sphere.

While in America, we do have the Sunshine Act which requires some disclosure, it does not require complete disclosure of physician income. It is also important to remember some distinguishing factors between Canada and America, such as the principle of transparency between government spending and contract in Canada. While physicians are not considered public servants, in Canada, the services physicians provide are under an umbrella of public funding.

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