McNeil government withholding legal bill for case against Halifax cardiologist

Nova Scotia's information and privacy commissioner will review the McNeil government's refusal to tell CBC News how much it spent defending a health authority in a case against a Halifax doctor. 

Commissioner Tricia Ralph will begin her examination of the file on Nov. 24, which is the deadline for any final representations on the matter. It can take several months to get a final report.

The file dates to Sept. 16, 2016, when CBC asked for all information held by the Department of Health related to the costs of the court case involving Gabrielle Horne. 

In 2016, the Halifax cardiologist successfully sued the old Capital District Health Authority and others for damaging her professional reputation.

Horne had a high-profile research grant in 2002, and claimed that colleagues tried to add their names to her research papers. Horne said when she refused, her privileges at the Queen Elizabeth II Health Sciences Centre were changed so she was unable to do her research anymore. She sued the health authority for loss of reputation and career.

The case wound its way through the court for a decade before a 33-day trial in which a jury awarded her $1.4 million, but the Nova Scotia Court of Appeal reduced that to $800,000.

The province won't reveal how much taxpayers paid to defend Capital Health during that lawsuit.

In October 2016, the Department of Health did provide a two-page response to the CBC request. The two pages comprised an email string and an attachment that was completed blacked out.

The provincial government withheld the information citing section 17 of Nova Scotia's Freedom of Information and Protection of Privacy Act (FOIPOP). It allows for information to be severed because its release "would harm the financial or economic interests" of the body providing the information.

'Not in compliance'

The province also noted it did not include correspondence prior to 2008 because the Department of Health did not keep those records longer than eight years. It said that information was being held by the Nova Scotia Archives.

During a preliminary examination of that claim by an investigator in the Office of the Information and Privacy, investigator Karlie Gurski found the province was "not in compliance with FOIPOP."

Gurski noted the litigation had been concluded and "the public body (health authority) has not established the relationship between the cost of the court case and the public body's ability to negotiate settlements."

She also pointed to an information commissioner of Canada decision that "costs associated with a court case are generally considered 'neutral information' which must be disclosed."

She also noted the amounts being sought were "over 10 years old."

'Wildly under-responsive'

International privacy expert Toby Mendel was surprised by how little information the department claimed it had found in its search for the documents requested by the CBC.

"I find it almost unimaginable that there weren't a flow of e-mails between the (Department of Justice) and the health authority on matters related to costs," said Mendel, the executive director of the Centre for Law and Democracy.

"It seems to me to be wildly under-responsive."

Mendel said the response appeared to be part of a growing pattern of governments being less forthcoming when it comes to requests, and looking for reasons to exclude or sever information rather than provide it.

"Public bodies often are looking around for any exception that they can find to hang their hat on," he said. 

Mendel is also concerned that it has taken four years for the matter to make it to a review by the information and privacy commissioner.

"You can go through the courts in less than four years," said Mendel.

Because Ralph's findings are recommendation and not legally binding, the CBC may have to go to Nova Scotia's Supreme Court if the province sticks to its position the information should not be released.

In the lead up to the 2013 provincial election, then opposition leader Stephen McNeil pledged to change the law so that rulings by the commissioner would have full force, but as premier the Liberal leader has said that change was unnecessary.