I recently blogged about a recent decision from the Nova Scotia Court of Appeal that held individual physician billing information should not be disclosed under the province's Freedom of Information and Protection of Privacy Act (See: The Canadian Privacy Law Blog: Doctors' billings in Nova Scotia is private information under FOIPOP). This is a different result than that reached in Manitoba and British Columbia and is an important interpretation of the Act in Nova Scotia.
The decision is not yet up at the Courts' website, but here's a copy:
2006 NSCA 59
Counsel: Cynthia Scott for Appellant
Edward Gores, Q.C. for Respondent, Her Majesty the Queen
Graham Steele for Respondent, Joanna Redden
Ms. Redden applied under Nova Scotia's Freedom of Information and Protection of Privacy Act for disclosure of records with the provincial Department of Health showing named physician billings from 2000 to 2004, later revised to 2002-2004. The Supreme Court ordered disclosure. Doctors Nova Scotia, representing physicians, appeals. Doctors Nova Scotia says that the disclosure of named physicians' individual billings would unreasonably invade the physicians' privacy. It is common ground that the request is for personal information. There are two issues. (1) Does the requested information reveal details of "a contract to supply services to a public body" (which is deemed not to unreasonably invade privacy) under s. 20(4)(f) of the Act? (2) If not, does a consideration of the circumstances cited in s. 20(2) rebut the statutory presumption that disclosure would unreasonably invade the physicians' privacy?
The Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, as am. ("Act") prescribes the procedure for access to records possessed by public bodies, including provincial government departments. On July 21, 2004, the respondent Joanna Redden applied under s. 6(1) of the Act for copies of records possessed by the Department of Health showing "the total physician billing, by physician, in Nova Scotia from 2000 to the present." Ms. Redden is on staff with the New Democratic Party.
Under s. 22 of the Act, the Department of Health gave notice of Ms. Redden's request to the appellant Doctors Nova Scotia ("DNS"). DNS represents physicians in the Province, and was formerly known as the Medical Society of Nova Scotia. DNS objected to Ms. Redden's request. DNS said the disclosure would unreasonably invade physicians' privacy.
The Department of Health responded to DNS with a letter of September 17, 2004 stating:
DNS filed a request for a review of the Department's decision. The review officer wrote a report dated January 28, 2005. The report notes:
The review officer concluded that the requested information revealed details of a contract to supply a service to the provincial government. By s. 20(4)(f) of the Act, such a disclosure is deemed not to unreasonably invade privacy. The review officer recommended disclosure.
DNS appealed to the Nova Scotia Supreme Court under s. 42(1) of the Act. Section 42(1) states that the Supreme Court "determines the matter de novo." Justice Douglas MacLellan heard the appeal on August 8, 2005. DNS filed an affidavit of Dr. Gary Ernest, the director of DNS. Ms. Redden filed an affidavit of Lori Errington, a researcher with the NDP caucus office.
The chambers judge issued a decision on August 30, 2005, dismissing DNS' appeal (2005 NSSC 244). He ruled that the disclosure was deemed not to be an unreasonable invasion of privacy by s. 20(4)(f). This provision reads:
Later I will discuss the chambers judge's reasoning. He determined:
DNS appeals to this court. DNS' factum defines the issue as follows:
The Act says nothing of appeals from the Supreme Court. Section 38(1) of the Judicature Act, R.S.N.S. 1989, c. 240 states that, except where otherwise provided, an appeal lies to the Court of Appeal from any decision of the Supreme Court. Section 38(1) permits an appeal from a Supreme Court decision made under s. 42(1) of the Freedom of Information and Protection of Privacy Act: O'Connor v. Nova Scotia, 2001 NSCA 132, at ¶ 30; Dickie v. Nova Scotia (Department of Health),  N.S.J. No. 116 (C.A.).
Standard of Review
This is an appeal from a de novo determination by the Supreme Court, not from a judicial review of a decision by an administrative tribunal. So the pragmatic and functional approach does not determine the standard of review. Rather, the standard of review for the Court of Appeal is that which normally applies to a civil appeal from a decision of first instance by a lower court. In O'Connor, at ¶ 28 - 34, Justice Saunders summarized the principle:
The issues turn on s. 20 of the Act. The pertinent wording is:
In Dickie, at ¶ 4 - 18, Justice Cromwell outlined the analytical approach to s. 20. To similar effect: Re House and 144900 Canada Inc. 2000 Carswell N.S. 429 (NSSC) per Moir, J. at ¶ 6. In summary, the court should ask the following questions:
Those are the issues before a Supreme Court judge. The issue in the Court of Appeal is whether the chambers judge committed an appealable error under the standard of review respecting these four questions.
The first and third questions are not in contention on this appeal:
The argument in this court focussed on the second and fourth questions. Those are the issues I will address.
Contract to Supply Services to a Public Body - s. 20(4)(f)
The chambers judge disposed of the claim under s. 20(4)(f), which deems the disclosure not to unreasonably invade the physicians' privacy if the disclosure reveals details "of a contract to supply . . . services to a public body".
The only contract in evidence, or considered by the chambers judge, was the Agreement dated April 1, 2004 between the Medical Society of Nova Scotia (now "DNS") and Her Majesty the Queen in right of the Province ("Contract"). The Contract provides a Fee Tariff for "Insured Medical Services".
Some medical services are provided under arrangements other than fee for service under this Contract. Article 3.1 of the Contract mentions the collective agreement between PARI-MP (which represents medical residents in the Maritime Provinces) and various healthcare facilities. "Alternative Funding Programs" are defined by article 1(1) as:
Article 12.5 notes that physicians may provide insured medical services pursuant to a salaried arrangement with district health authorities.
Ms. Redden's request for information relates only to services by physicians on a fee for service basis as prescribed in the Contract of April 1, 2004. No other contract is in evidence. I express no opinion whether any such other contract, be it a collective agreement involving PARI-MP or an Alternative Funding Program or a salaried arrangement, is or is not a "contract to supply services to a public body" under s. 20(4)(f).
Concerning the requested information under the Contract, the chambers judge began by posing the question:
Clearly the Contract of April 1, 2004 was a "contract", the disclosure would reveal financial details deriving from that contract, and physicians provide medical "services". The issue under s. 20(4)(f) is whether, under the Contract, physicians provide those services "to a public body".
The chambers judge noted repeatedly that physicians' services are provided to individual patients:
The chambers judge found that the service provided by physicians was "not for the Department of Health but for residents of the Province". Nowhere does his decision say that physicians provided a service to the Department of Health.
The chambers judge then said:
The chambers judge arrived at his conclusion by interpreting s. 20(4)(f) as if it read:
The chambers judge has, with respect, misread the provision. The point is not whether the Contract is signed with a public body. Under the Contract, the services must be supplied to a public body.
In his able submission, counsel for Ms. Redden urged the court to interpret s. 20(4)(f) "purposively", instead of "literally", to promote disclosure. The court is to interpret the Act. The words of the Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the legislature: R. v. Sharpe,  1 S.C.R. 45 at ¶ 33 per McLachlin, C.J.C., and authorities cited. The starting point is the "grammatical and ordinary sense of the words". The legislature has chosen to enact that the deeming by s. 20(4)(f) applies only when the disclosure relates to details of a contract to provide "services to a public body". Section 2 of the Act lists the statutory objects to include both promotion of public access to records and protection of privacy for personal information. The court cannot ignore the clear statutory direction simply to promote disclosure per se. It is the function of the legislature, not the court, to decide whether or not the words "services to a public body" should cease to qualify the deeming in s. 20(4)(f).
A review of the Contract and its enabling legislation establishes that the physicians' services involved in this appeal, provided on a fee for service basis, are not "services to a public body" and the Contract does not "supply services to a public body".
The Contract provides the mechanism for negotiating a Fee Tariff. Article 1(6) defines "Fee Tariff" as a tariff for "Insured Medical Services". Article 1(9) defines "Insured Medical Services" as "the medical services that Insured residents are entitled to receive under the provisions of the Health Services and Insurance Act . . ." [emphasis added]. "Insured Residents" are defined by article 1(8) of the Contract as "residents of Nova Scotia as defined by the Health Services and Insurance Act . . ."
The Health Services and Insurance Act, R.S.N.S. 1989, c. 197, as amended, ("HSIA") s. 2(h)(a) defines "insured professional services" as "the services with respect to which a resident is entitled to receive insurance under the provisions of this Act and the Regulations". "Resident" is defined by s. 1(l) as "resident of the Province as defined in the Regulations". Various provisions [e.g. ss. 17(2)(a), (b) and (d); 27(1); 28(1); 29(1) ] state that the insured professional service is rendered "to a resident". Nothing in the HSIA says physicians' services are to the Province. Section 3(2), the heart of the HSIA, states:
Section 13(1)(a) authorizes the Minister of Health to negotiate "compensation for insured professional services on behalf of the Province with the professional organization representing providers". Section 13(A) authorizes the Minister of Health to "enter into an agreement with the Society [now DNS] on behalf of all duly qualified medical practitioners in the Province who provide insured medical services concerning compensation for insured medical services . . .". These provisions that enable the Contract are subject to s. 23 of the HSIA:
In my view, the Contract and HSIA display the following dynamics. The Contract establishes a Tariff for "insured medical services", and defines "insured medical services" to mean services to the patient. The Contract is authorized by the HSIA. Under that HSIA, "insured professional services" are services to the patient. The Province insures the patient for the cost of the services to the extent of the tariffs. The Act does not interfere with, or inject the Province into, the individual choices of the patient and physician to engage in the professional relationship - confirmed by s. 23. The Department and the physician (through DNS) contract to establish the tariff, and the Province as insurer pays the physician directly. But the physician provides the medical service to the patient, not to the Province.
The chambers judge (¶ 29 - quoted earlier) noted that "the Department of Health speak[s] for residents of Nova Scotia." It is unclear how this proposition channelled the chambers judge's reasoning. It appears that the chambers judge may have characterized the Department as an agent for the residents/patients. To this I have two comments. First, the HSIA does not express an agency role for the Department. The HSIA describes the Province as an insurer. Second, even if there is an implied or constructive agency (about which I express no opinion), that does not redirect the physicians' medical services to the Province. An agency does not bestow on the agent the benefit of a service rendered to the principal.
Counsel for Ms. Redden says that it should not matter who "consumes" the service. Counsel cited examples of contracts with government to build roads, schools and hospitals. Another example discussed at the hearing would be a contract with government for garbage collection. Counsel says the contractor provides these services to the government. In my view, these examples differ in principle from physicians' services. In these examples the contract with the public body is the source of the third party's commitment to build the road, school or hospital or collect garbage. So the service may be provided to the public body though it benefits individuals. The Contract of April 1, 2004 systemizes the Province's role as insurer, but is not the source of a physician's commitment to provide medical service. That commitment results from the individual dealings between physician and patient, as acknowledged by s. 23 of the HSIA.
This was not a contract to supply medical "services to a public body". Section 20(4)(f) does not apply. The standard of review for errors of law is correctness. With respect, the chambers judge erred in law by ruling that s. 20(4)(f) deemed this disclosure not to be an unreasonable invasion of the physicians' privacy.
Rebuttal of Presumption - s. 20(2)
Ms. Redden's factum acknowledges that, if s. 20(4)(f) does not apply, then s. 20(3)(f) does apply. The requested disclosure involves personal information describing physicians' "income". Section 20(3)(f) presumes this to be an unreasonable invasion of the physicians' privacy, unless rebutted under s. 20(2). I will turn to s. 20(2).
The chambers judge did not consider s. 20(2). There is no issue of appellate deference on that topic.
In Dickie, this court considered the approach to the rebuttal of the presumption. Justice Cromwell stated:
The s. 20(2) analysis is a balancing exercise, but not from a level scale. It begins with the weighted presumption under s. 20(3)(f) that the disclosure would unreasonably invade the physicians' privacy. The question is whether the circumstances cited in s. 20(2) overcome this presumption. The proponent of rebuttal must define and establish her proposition.
Section 20(2) is quoted earlier (¶ 11). In the circumstances here, there is nothing in ¶ 20(2)(c) through (h) to support the rebuttal of the presumption that disclosure would unreasonably invade the physicians' privacy. The questions are whether the presumption is rebutted by a consideration of "all the relevant circumstances" in the prefix, whether the disclosure would better subject government to public scrutiny under s. 20(2)(a) and whether the disclosure would promote public health under s. 20(2)(b).
Ms. Errington's affidavit says that the requested information is public in British Columbia and Manitoba, and that in Nova Scotia incomes of civil servants, teachers and professors are publicized. Her affidavit says that the Nova Scotia government spends over half a billion dollars per annum for medical payments and grants. Ms. Redden's factum repeats these submissions. Nothing in the evidence or Mr. Redden's factum focuses on the listed factors in s. 20(2). The Province's factum does cite s. 20(2)(a).
Physicians' billing data is publicized in British Columbia and Manitoba under specific statutory provisions that do not exist in Nova Scotia: Financial Information Act, R.S.B.C. 1996, c. 140 and Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 22(4)(g); Public Sector Compensation Disclosure Act, C.C.S.M. 1996, c. P265, s. 5. In Nova Scotia, the disclosure of incomes of teachers, civil servants and professors does not involve the issues under s. 20 that determine the outcome of Ms. Redden's request for the physicians' billings.
The Province spends over half a billion dollars annually on medical services. If the question was simply "Should there be disclosure of how the government spends over half a billion dollars per annum?" I would agree. Disclosure would promote public scrutiny of the spending activities of the government in the field of public health. This would engage s. 20(2)(a) and (b). But that is not the question. DNS does not object to the disclosure of the requested information, provided only that the names of individual physicians are deleted (or replaced with numbers). Disclosure of global funding, or categories of funding, or details (other than names) of funding for physicians' insured services is not contested. The only question is whether the names of individual physicians should be included (or replaced by numbers). If the names were deleted, the billings data, to the extent that the information would not then relate to an identifiable individual, would not be "personal information" and s. 20 would not bar disclosure.
The evidence contains nothing to support the conclusion that the disclosure of the names of individual physicians would better subject the government to public scrutiny or improve public health.
At the hearing of his appeal, counsel for Ms. Redden referred to passages in the transcript of his submissions to the chambers judge. Counsel said to the chambers judge, "I'm not going to give evidence", but then described "hypotheticals". An example is a hypothetical municipality that considers whether to levy a tax to replace a physician or entice a physician to locate in the community. The physician's income would be relevant to the policy choice of the municipal council - to calculate the level of the special tax. Counsel concluded by saying to the chambers judge: "I make no claims about how close these are to actual fact situations in Nova Scotia."
Counsel may hypothesize how the name of a physician might connect to a government decision. But there is no support in the evidence for this speculation. Free-wheeling conjecture does not establish a proposition to rebut the statutory presumption. In my view, the consideration of the circumstances under s. 20(2) here does not rebut the presumption under s. 20(3)(f) that the disclosure would unreasonably invade the physicians' privacy.
The disclosure of the names of individual physicians would be an unreasonable invasion of the physician's privacy. By s. 20(1), the names of individual physicians should not be disclosed, and I would allow the appeal in that respect. The parties should bear their own costs.