Horne case legal fees (Mar 4, 2007)

When is a legal bill legal advice?

When the Capital District Health Authority doesn’t want to disclose how many of your tax dollars it’s spent fighting a losing cause

My question was straightforward enough. I simply wanted to know how much the Capital District Healthy Authority had spent hiring outside legal firms to fight the Dr. Gabrielle Horne privileges cases.

Dr. Horne, you may recall, is the “globally pioneering” heart researcher whose multi-million-dollar research program the health authority cut off at the knees in October 2002 when it varied her hospital privileges on an “emergency” basis in order to protect what it called patient safety.

Four years and countless legal twists, turns, hoops and loops later, the authority finally conceded last September there was no legal basis to alter the doctor’s privileges.

This case has already cost the health authority — for which read you and me — plenty. And it’s likely to cost much more before it’s over. Horne is suing the authority for damages to her reputation and her research program. And the authority’s ham-fisted attempts at damage control — it claimed, even after admitting it couldn’t justify its original decision, that Horne was the author of her own misfortune because she wasn’t “collegial” enough — will also mean that, if she wins her case, the damages will certainly total millions.

Although Capital District has in-house lawyers, it hired at least two different top-dollar, local law firms — Boyne Clarke and McInnes Cooper — to work on aspects of this case. What we don’t know is how much it paid them.

When I asked a spokesman for Capital Health, he told me that was “outside of my scope and ability to respond,” and passed me on to the authority’s privacy officer, who invited me to file a freedom-of-information request. I did.

Specifically, I asked for names of all firms who’d provided advice in the case and “the amounts billed by each firm or individual” since 2002.

Last week, the CDHA turned down my request. It claimed the information I’d asked for was protected by solicitor-client privilege.

Huh?

I wasn’t asking what advice those firms gave the authority (though, Lord knows, given how the CDHA has handled this case, someone should!). I simply wanted to know how much the authority spent on them.

Solicitor-client privilege is an important legal principle whose purpose is to protect what a client tells a lawyer, or what a lawyer advises a client, from being used against the client in court. “A lawyer’s client is entitled to have all communications with a view to obtaining legal advice kept confidential,” the Supreme Court of Canada declared in 1982.

But the amount of a bill isn’t legal advice. And the bill in this case is being paid by taxpayers, to whom the health authority is supposed to be accountable.

In fact, the Supreme Court of Nova Scotia ruled in 1999 that reporter Dean Jobb and the Halifax Herald were entitled to know the amounts the department of justice paid private lawyers representing two men accused in connection with the Westray mine disaster. “The key,” noted the ruling, “is whether the information sought was a communication between solicitor and client given in confidence.”

It wasn’t. It was a legal bill. As is the information I requested.

So why is the health authority refusing to be accountable? Could it be because it doesn’t want Nova Scotians to know how much it has spent on a case it should never have pursued.

The authority did answer one of my related questions. We now know that Capital Health — which has its own in-house legal team — has spent an astounding total of $3.97 million just to hire private lawyers since the Horne case began. What we don’t is how much of that was flushed down the Horne drain.

But we do know what the health authority could have spent that money on instead of legal fees: 522 hip replacements, 323 bypass surgeries, 1,323 cataract operations…

I can appeal the authority’s refusal of my request. And I will.

But in the meantime, I would challenge the Capital District Health Authority’s CEO, Chris Power, to waive solicitor-client privilege in this case in the public interest, or, at the very least, publicly explain exactly what it is about the amount of money a publicly-funded body pays out to private lawyers that qualifies as “advice” meriting a claim of confidentiality.

Otherwise, we will be left to conclude that this refusal is what it is — yet another attempt by the health authority to avoid being accountable for the ways in which it spends our health care dollars.

Stephen Kimber, the Rogers Communications Chair in Journalism at the University of King’s College, is an award-winning author of five nonfiction books and a novel, Reparations.