Administrative law – Decisions reviewed – Privacy Commissioner – Freedom of information and protection of privacy – Disclosure of records – Public interest – Judicial review – Compliance with legislation – Standard of review – Reasonableness – Physicians and surgeons
British Columbia (College of Physicians and Surgeons) v. British Columbia (Information and Privacy Commissioner),  B.C.J. No. 407, 2019 BCSC 354, Supreme Court of British Columbia, March 15, 2019, B.D. MacKenzie J.
A registrant of the College of Physicians and Surgeons (the “College”) was the subject of a quality assurance program under section 6.1 of the Health Professions Act, RSBC 1996, c. 183 (“HPA”). The program involved feedback being obtained from the physician’s patients, peer physicians, and non-physician co-workers through questionnaires. After feedback was received by the College, the College provided the physician with an overall assessment, but not with the specific information contained in the questionnaires.
The physician made a request under s.52 of the Freedom of Information and Protection of Privacy Act, RSBC 1996, c.165 (“FIPPA”) that the College provide him with the questionnaires. The College withheld access on the basis that the requested information related to one of its quality assurance programs, and therefore FIPPA did not apply to that information by operation of section 26.2 of the HPA. The College’s position was that it was “vitally important to the integrity and efficacy of the [program] that the participant assessors be assured that what they say will be kept confidential in order to ensure they are open and candid in their assessments”.
The physician’s request was reviewed by an Information and Privacy Commissioner (“IPC”) adjudicator. The adjudicator ordered the College to disclose the requested questionnaires to the physician.
The College brought an application for judicial review of the adjudicator’s decision, seeking an order that the decision be quashed. The College’s focus was on the adjudicator’s interpretation and application of s.26.2 of the HPA.
The Court found that, in light of the jurisprudence, the appropriate standard of review was reasonableness. The Court agreed that the legislature would have expected the IPC to interpret and apply the exception to FIPPA’s access right created by s.26.2 of the HPA, as interpreting that provision is fundamental to the IPC carrying out the statutory mandate to adjudicate on access requests.
Nonetheless, the adjudicator’s decision was held to be unreasonable, as the Court was not satisfied that the adjudicator paid “sufficient attention to the scheme of the HPA, its object or the intention of the legislature, nor was the context of the words in issue appropriately recognized”. The Court held that the legislature clearly intended section 26.2 to shield quality assurance program records from disclosure to assessed registrants, and that any reasonable interpretation of that provision must give adequate weight to that intention, as well as the confidentiality and public protection objectives of the quality assurance provisions and the HPA as a whole.
Though the adjudicator correctly identified the modern approach to statutory interpretation, the Court held that her ensuing analysis was insufficiently thorough and failed to give appropriate weight to these considerations. Instead the adjudicator gave undue priority to the interests of the FIPPA applicant, which the Court held should be secondary to the public interest in the HPA context. Therefore, the adjudicator was held to have reached a conclusion that frustrated the purposes and policies of the HPA and that did not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The adjudicator’s order was therefore quashed.
This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact JoAnne G. Barnum at firstname.lastname@example.org.
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