The Court of Appeal granted the Respondent College’s application to seal the appeal book in order to protect the privacy interests of the Appellant’s patients. The Court of Appeal also granted the Respondent College’s application for a publication ban on the names of the patients and their family members that were identified during the hearing of the appeal. The privacy interests in this case outweighed the negative effects of the sealing order and publication ban.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Professional governance and discipline – Publication ban – Judicial review – Disclosure of third party records – Medical records – Confidentiality – Freedom of information and protection of privacy – Public interest

Osif v. College of Physicians and Surgeons of Nova Scotia, [2008] N.S.J. No. 539, Nova Scotia Court of Appeal, December 5, 2008, L.L. Oland J.A.

In January 2006, a patient complained to the Respondent College (the “College”) about the Appellant physician (“Dr. Osif”). Dr. Osif was investigated by the College and this investigation was broadened to include an audit of Dr. Osif’s emergency room records as well as a clinical assessment of her emergency room skills. The matter proceeded to a hearing before the College’s Hearing Committee.

At the outset of the hearing in October 2007, the College applied for a ban on the publication of the names of third party patients and family members. This application was not opposed by Dr. Osif or any media representatives. The application was granted.

In the Hearing Committee’s decision, the third party patients and family members were identified using only their initials. Dr. Osif filed a notice of appeal and proceeded, in September 2008, to file the appeal book. The appeal book contained the transcript of the hearing, which identified the third party patients and, in some instances, their family members. The appeal book also contained exhibits, which included patient charts and records with identifying information.

In November 2008, Dr. Osif’s counsel filed their factum and it identified third party patients and family members by name. In response, the College applied to seal the appeal book and for a publication ban on the names of patients and family members identified during the hearing. Dr. Osif did not oppose this application and neither did any media representatives.

The Court of Appeal referred first to the Dagenais/Mentuck test and preferred the way this test was framed in the Sierra Club decision. The Court of Appeal continued to apply the two-part test as outlined below.

First, the interests at stake were the confidentiality of medical records, the integrity of the College and its hearing process, and freedom of information. The disclosure of the patient names would affect the first two interests at stake. The sealing of the appeal book was necessary to protect these interests because a redaction of the appeal book and exhibits was an alternative but not a realistic one in the circumstances of this case.

Second, in balancing the competing interests, the protection of the first two interests at stake outweighed the negative effect on the open court process. This was the case because the courtroom would still be open and the sealing order and publication ban did not relate to the central issues in the appeal.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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