Civil Litigation

Winkler successful in accessing disciplinary hearing record

By AdvocateDaily.com Staff

Decisions like a recent case that applied the open-court principle to a doctor’s disciplinary proceedings contribute to a better informed Canadian public, says Toronto lawyer and mediator Howard Winkler.

Winkler, principal and founder of Winkler Dispute Resolution, acted for a major Canadian magazine after it ran into difficulty during its investigation into a disgraced gynecologist, helping the publication gain access to files and exhibits filed during the doctor’s disciplinary hearing at the College of Physicians and Surgeons of Ontario (CPSO), which ultimately ended in the revocation of his licence.

“Without that access, the story that was ultimately published would not have been as fulsome in terms of this physician’s previous disciplinary record, and the full extent of his misconduct would have remained unknown,” he tells AdvocateDaily.com.

According to the magazine feature, the author began his in-depth investigation in mid-2018 after the CPSO posted a brief notice to its website announcing the doctor’s licence to practice had been stripped from him.

But when the writer contacted the regulator about viewing the case file and related exhibits, the college’s hearing division asked him to make legal submissions to back up his access request.

That’s when they called in Winkler, a longtime counsel to the magazine who says he’s normally asked to carry out pre-publication legal reviews and conduct litigation on their behalf.

Winkler’s formal request for the full disciplinary file was opposed not only by the doctor, who objected to the impact on his privacy rights but also by the CPSO itself, which expressed concern about identifying hospital staff and other witnesses who played a part in the original proceedings.

“We had a battle to gain access to those records, but ultimately, we were successful in obtaining everything we asked for, and the documents were only redacted to the extent necessary to protect the identity of the patients involved,” Winkler says.

He says the magazine’s case was built on the foundation of a landmark 2018 Superior Court judgment that effectively extended the open-court principle to the province’s administrative tribunals, including disciplinary bodies for Ontario’s self-regulating professions.

The judge in that case ruled that certain provisions of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), which tribunals relied on to block or delay public access to their files, were unconstitutional.

“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” the judge wrote in a decision that went unchallenged by the provincial government, adding that the law’s emphasis on privacy at the expense of openness “not only has a negative impact on the press but also affects other stakeholders.”

The magazine story printed by Winkler’s client eventually revealed extensive details about the once highly respected gynecologist’s checkered disciplinary history with the CPSO, and his practice of administering drugs to pregnant patients without their consent in order to induce delivery — typically at the weekend, when he was able to charge OHIP a higher rate for his services.

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