Ruling expected Thursday in battle over secret Algoma Public Health report

Canada's highest court will deliver a judgment this week on Dr. Kim Barker's five-year battle to block release of a forensic report about her time at Algoma Public Health.

The Supreme Court of Canada announced Monday that it will deliver its decision Thursday on the former APH chief executive officer's application to appeal a lower court's order that the full, unredacted document be released to SooToday/Village Media.

The KPMG forensic audit, originally commissioned by APH, is known to contain sensitive and possibly distressing personal information about Dr. Barker.

Algoma Public Health, Sault Ste. Marie Mayor Christian Provenzano, Ontario's Information and Privacy Commissioner, former MPP David Orazietti and former Minister of Health Dr. Eric Hoskins have all nonetheless called for the report to be made public.

The Ontario Court of Appeal ruled in April of this year that Barker's personal privacy interests are trumped by the "compelling public interest" in knowing whether a conflict of interest existed in 2013 when Barker hired Shaun Rootenberg as the health unit's interim chief financial officer.

Daughter of the beloved Canadian cartoonist Ben Wicks, Barker came to Sault Ste. Marie in August, 2013 as APH's CEO and medical officer of health.

As SooToday first revealed in January, 2015, Rootenberg had previously done time at Correctional Service Canada’s Beaver Creek Institution in Gravenhurst after pleading guilty to multiple counts of fraud involving more than $2 million.

After Rootenberg's criminal past was exposed, Barker submitted her resignation, forensic audits were ordered by both APH and the provincial government, and four members of the APH board were asked by Ontario's health minister to resign.

After leaving the Sault, Rootenberg was convicted of defrauding a divorced mother of two he met on the online dating site eharmony out of $595,000.

The CBC news program The Fifth Estate has reported that lawyers for the murdered billionaire philanthropist Barry Sherman filed documents in a court case accusing Rootenberg of "a fraudulent scheme" the day before Sherman and his wife Honey were last seen alive.

If Barker's application for leave to appeal is rejected Thursday by the Supreme Court of Canada, the KPMG forensic report will be immediately turned over to SooToday, which will review the document with our legal counsel before deciding how much of it can be made public on our website.

If the nine-judge court agrees to hear her appeal, we'll receive the KPMG audit only after a subsequent favourable decision.

Appeals to the Supreme Court of Canada can result in historic legal precedents but are generally considered long shots.

The court usually agrees to hear only about 80 appeals, selected from 500 to 600 applications submitted each year.

The Supreme Court is not required to give reasons for its decisions on leave applications.

The following is the court's summary of the SooToday/Algoma Public Health case, as released Monday:

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Kim Barker v. Information and Privacy Commissioner of Ontario and Algoma Public Health

(Ont.) (Civil) (By Leave)
(Sealing order)
 
Administrative law — Judicial review — Standard of review — Access to Information — Government records — Exemptions — Statutes — Interpretation — Decision of Information Commissioner — Public interest — Whether Court of Appeal misinterpreted and misapplied s. 16 of Municipal Freedom of Information and Personal Privacy Act, R.S.O. 1990, c. M.56, which restricts application of public interest override to exemptions from disclosure of personal information — Whether court applied wrong standard of review — Whether Court of Appeal formulated unworkable test for application or review of application of s. 16 of Municipal Freedom of Information and Personal Privacy Act.
 
Algoma Public Health commissioned a forensic investigation into a former interim chief financial officer’s conduct and whether there had been a conflict of interest in his hiring. Dr. Barker was the medical officer of health and chief executive officer of Algoma Public Health at the time of the chief financial officer’s tenure. The investigator’s report contains personal information of Dr. Barker that normally would be subject to an exemption from disclosure set out in s. 14(1) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

Algoma Public Health received a request for access to the report from a news service. It determined that s. 16 of the act allows disclosure because a compelling public interest in disclosure outweighs the purpose of the exemption. Dr. Barker appealed to the Information and Privacy Commissioner. The commissioner upheld Algoma Public Health’s decision and later declined to reconsider his decision. The Divisional Court of Ontario granted an application for judicial review, quashed the commissioner’s decisions, and ordered the commissioner to rehear the appeal. The Court of Appeal allowed an appeal.

Application for judicial review granted
December 18, 2017
Ontario Superior Court of Justice
Divisional Court
(Kiteley, Matheson, Tzimas JJ.)
2017 ONSC 7564
 
Appeal allowed
April 9, 2019
Court of Appeal for Ontario
(Rouleau, van Rensburg, Roberts JJ.A.)
2019 ONCA 275; C65372

Application for leave to appeal filed 
June 10, 2019
Supreme Court of Canada

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