CITATION: Attorney General for Ontario v. Information and Privacy Commissioner, 2020
ONSC 5085
DIVISIONAL COURT FILE NO.: 456/19
DATE: XXXXXXXXXX
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Penny and Kristjanson JJ.
BETWEEN: )
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Attorney General for Ontario
Applicant
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Information and Privacy Commissioner and
Canadian Broadcasting Corporation
Respondents
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Centre for Free Expression, Canadian
Journalists for Free Expression, The
Canadian Association of Journalists and
Aboriginal Peoples Television Network
Intervenors
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Judie Im and Nadia Laeeque for the
Applicant
William S. Challis for the Information and
Privacy Commissioner
Justin Safayeni and Spencer Bass for the
Canadian Broadcasting Corporation
Daniel Sheppard for the Intervenors
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) HEARD: May 21, 2020
Penny J.
Overview
[1] In this application the Attorney General for Ontario seeks judicial review of Order PO –
3973, made on July 15, 2019 by Brian Beamish, the Information and Privacy
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intra.judicialsecurity.jus.gov.on.ca/NeutralCitation
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Commissioner of Ontario, under the Freedom of Information and Protection of Privacy
Act, R.S.O. 1990, c. F.31. In this Decision the IPC ordered disclosure to the requester,
Canadian Broadcasting Corporation, of mandate letters from the Premier, Doug Ford, to
each of his ministers who, together with the Premier, comprise the Executive Council.
The Cabinet Office opposed disclosure on the basis of the Cabinet privilege exemption
under s XXXXXXXXXXof the Act.
[2] There are three issues to be resolved on this application for judicial review:
(1) the standard of review;
(2) whether the IPC’s interpretation and application of s XXXXXXXXXXof the Act was
unreasonable; and
(3) whether the IPC imposed an unreasonable burden of proof on the Cabinet Office.
[3] For the reasons that follow, I find that the standard of review is reasonableness and that
the Decision was reasonable. The application for judicial review is therefore dismissed.
Background
[4] The mandate Letters which are at the heart of this application are addressed to each
minister and set out the policy priorities of the Premier with respect to each minister’s
mandate. They include the Premier’s advice, instruction and guidance to each minister in
ca
ying out his or her ministerial duties and responsibilities.
[5] A journalist with the CBC made an application under the Act for disclosure of the
Letters. The Cabinet Office opposed disclosure, relying on the introductory wording of
the Cabinet records exemption under s XXXXXXXXXXof the Act, which provides that, “A head
shall refuse to disclose a record where the disclosure would reveal the substance of
deliberations of the Executive Council or its committees…”. While subparagraphs
12(1)(a) to (f) enumerate specific records that are exempt from disclosure, it is common
ground that none of these specific subparagraphs are applicable in this case. Thus, the
issue to be determined before the IPC turned on the introductory language of s. 12(1).
[6] Cabinet Office’s position was that the disclosure of the Letters would reveal the
substance of deliberations: 1) of the Premier in setting Cabinet’s policy priorities which
are inherently part of the deliberative process of Cabinet; 2) at the initial meeting of
Cabinet where the Letters were first delivered to each minister; and 3) at future Cabinet
meetings where the policy priorities set out in the Letters would be further discussed.
[7] The parties engaged in a lengthy process of written submissions to the IPC. Following
deliberation, the IPC issued lengthy and detailed reasons, in which he found that
disclosure of the mandate Letters would not reveal the substance of any Cabinet
deliberations and so he ordered that the Letters be released.
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[8] In his decision, the IPC found that the applicable test was whether disclosure of the
Letters would reveal the substance of deliberations of Cabinet or its committees or would
permit the drawing of accurate inferences with respect to those deliberations. The IPC
further found that for the exemption in the introductory words of s XXXXXXXXXXto apply, the
institution had the evidentiary burden of establishing a “linkage” between the content of
the record and the actual substance of Cabinet deliberations, past or future. There is no
controversy about these principles.
[9] The IPC found that the introductory words of s XXXXXXXXXXwere not intended to protect the
“outcome” of a deliberative process but rather communications within the deliberative
process itself. The IPC found that because the Letters did not reveal any details about
meetings, discussions, issues, opinions or consultations relating to the formulation of the
Premier’s policy priorities and goals, or the Cabinet’s consideration of them, the Letters
were more appropriately considered the endpoint or the product of the Premier’s
deliberations and were therefore not exempt.
[10] The IPC also found that the Letters being placed before Cabinet provided some, but not
necessarily determinative, evidence that disclosing the Letters would reveal the substance
of deliberations of Cabinet. Because the Letters did not reveal any views, opinions,
thoughts, ideas or concerns expressed by Cabinet ministers (or any deliberations by the
Premier for that matter), in the absence of any evidence of what transpired at the meeting,
the Letters could only be considered “at best” to contain” topics” that may have arisen at
the Cabinet meeting. There was no such evidence of what transpired at the meeting.
[11] Finally, the IPC found that the limited evidence available established only that the subject
matter of some unspecified policy initiatives identified in the Letters would, assuming
they were pursued, likely be considered at some point in future Cabinet meetings.
However, the IPC concluded that this was insufficient to
ing the Letters within the
protection of s XXXXXXXXXXThe IPC found that making accurate inferences about the substance
of future deliberations would require the substance of any minister’s actual proposals,
plans for implementation or the results of consultations, program reviews or opinions,
none of which was put before the IPC in support of the Cabinet Office’s position.
Analysis of the Issues
[12] As noted earlier, there are three issues to be resolved on this application for judicial
eview.
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Counsel for the IPC filed a factum which, although addressing standard of review, was almost
entirely focused on the merits of the IPC’s Decision. The Court questioned whether this was
appropriate in light of the factors set out in para. 59 of the decision of the Supreme Court of
Canada in Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44, [2015]
S.C.R. 147, and declined to hear oral submissions from counsel for the IPC on issues other than
standard of review.
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Standard of Review
[13] The analysis of the standard of review starts with a presumption that “reasonableness” is
the applicable standard. This presumption is rebuttable in two instances: 1) where the
legislature has chosen a different standard (usually by way of appeal); and 2) where the
“rule of law” requires a standard of co
ectness, Canada (Minister of Citizenship and
Immigration) v. Vavilov, 2019 SCC 65 at para. 17.
[14] The Attorney General argues that the rule of law exception applies in this case. The
interpretation of s XXXXXXXXXXof the Act involves Cabinet privilege and confidentiality, issues
which have significant legal consequences for the justice system as a whole and for other
institutions of government.
[15] I cannot agree.
[16] This case involves a straightforward issue of statutory interpretation of one specific
provincial statute and the scope and application of the s XXXXXXXXXXprotection against
disclosure to specific documents. The rule of law exception is not engaged simply
ecause “the question, when framed in a general or abstract sense, touches on an
important issue,” Vavilov para. 61. There is no issue of the “rule of law” or of
constitutional law engaged in this case which removes the analysis from the presumed
standard of reasonableness.
[17] Reasonableness is the appropriate standard of review in this case. The reasonableness
eview finds its starting point in judicial restraint and respects the distinct role of
administrative decision-makers.
Was the IPC’s Interpretation of s XXXXXXXXXXUnreasonably Na
ow and Restrictive?
[18] The fundamental precepts of statutory interpretation which are applicable in this case are
not controversial. The modern approach to statutory interpretation requires the words of
an enactment to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the intention of
the legislature. The underlying purpose of this Act as a whole is to facilitate transparency
and promote accountability in government. The underlying purpose of the exemption
under s XXXXXXXXXXis to promote free and frank discussion among Cabinet members without
concern for the chilling effect that might result from disclosure of their statements or the
material on which they were deliberating.
[19] It is also accepted by the parties and the IPC that in order for the exemption under s.
12(1) to apply, disclosure of the record must “reveal the substance of deliberations” of
Cabinet or “permit the drawing of accurate inferences” about past or future Cabinet
deliberations. It is also accepted that the use of the term “including” in the introductory
words of s XXXXXXXXXXmeans that any record which would reveal the substance of
deliberations or permit the drawing of accurate inferences qualifies for the exemption; the
specifically enumerated categories of record in subparagraphs (a) to (f) must be
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interpreted as providing an expanded definition of, or at the very least the removal of any
ambiguity about, the types of records that are exempt from disclosure.
[20] Notwithstanding these
oad areas of interpretive agreement, the Attorney General
submits that the IPC’s interpretation of s XXXXXXXXXXand its application to the