Municipal Property Assessment Corporation v. Mitchinson, 2004 CanLII 17632 (ON SCDC)

Municipal Property Assessment Corporation v. Mitchinson, Assistant Information and Privacy Commissioner et al. [Indexed as: Municipal Property Assessment Corp. v. Ontario (Assistant Information and Privacy Commissioner)]

71 O.R. (3d) 303

[2004] O.J. No. 2118

Court File No. 647/03

Ontario Superior Court of Justice

Divisional Court,

Benotto S.J., Dunn and McCombs JJ.

May 21, 2004

Municipal law -- Freedom of information -- Municipal Property Assessment Corporation gathering personal information for municipal [page304] assessment rolls and for other purposes -- Collection agency requesting copy of electronic records from Municipal Property Assessment Corporation -- Order of Information Commission requiring disclosure quashed -- Municipal Property Assessment Corporation Act, 1997, S.O. 1997, c. 43 -- Assessment Act, R.S.O. 1990, c. A.31, ss. 14, 15, 39 -- Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, ss. 2(1), 14(1)(d), 15(a).

The Municipal Property Assessment Corporation ("MPAC") was a not-for-profit corporation created under the Municipal Property Assessment Corporation Act, 1997, to administer a province-wide property valuation system. MPAC's responsibilities included creating an assessment roll for each municipality. The assessment roll, which would be available for inspection by the public, included, amongst other things, the names of persons liable for assessment. Pursuant to other statutes, MPAC also collected information about gender, citizenship, date of birth, spousal relationship, disabilities and mailing address. The information is gathered to allow for the creation of assessment rolls for municipalities, identify those entitled to vote in municipal elections, create an annual school support list and generate a list of eligible potential jurors.

Security Recovery Group Inc. ("SRG") was a collection agency registered under the Collection Agencies Act, R.S.O. 1990, c. C.14. SRG asked MPAC for an electronic record containing the personal information of more than 10 million Ontario residents. MPAC refused and, pursuant to the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA"), SRG appealed to the Information and Privacy Commissioner.

Purporting to follow the authority of Gombu v. Mitchinson, which held that an electronic database of municipal election campaign contributors should be disclosed to a journalist, the Assistant Commissioner held that disclosure to SRG was authorized by s. 39 of the Assessment Act and, therefore, s. 14(1)(d) of MFIPPA applied. Section 14(1)(d) provides that personal information shall not be disclosed to any person other than the individual to whom the information relates except under an Act of Ontario or Canada that expressly authorizes disclosure. The Assistant Commissioner also found that MPAC was not entitled to rely on s. 15(a) of MFIPPA, which provides for a refusal to disclose a record if the record or the information contained in the record has been published or is currently available to the public.

The Assistant Commissioner allowed the appeal and ordered MPAC to provide the electronic record free of charge. MPAC applied for judicial review. The Attorney General intervened in support of MPAC.

Held, the application for judicial review should be granted.

Gombu v. Mitchinson was distinguishable and the Assistant Commissioner erred in finding that there was legislation that expressly authorized MPAC to disclose the information it had gathered. In Gombu, s. 88(5) of the Municipal Elections Act, 1996, S.O. 1996, c. 32 mandated disclosure of the electronic record. In the immediate case, however, the Assessment Act contained no such mandate. The Assessment Act neither obligates nor authorizes MPAC to do anything besides making the municipal rolls available to the municipal clerk. To override the important privacy interests addressed in MFIPPA, MPAC must have express authorization to disclose. In finding that Gombu was indistinguishable, the Assistant Commissioner erred by failing to consider properly the differing contexts and the different purposes of the legislative schemes under consideration. As a result [page305] of these two errors, the Assistant Commissioner erred by finding that since the information was available on paper, the electronic version of the information must also be disclosed. He also erred in holding that MPAC was not entitled to refuse disclosure relying on s. 15(a) of MFIPPA. It followed from these conclusions that the decision must be quashed and the matter remitted to the Commissioner for a new hearing upon proper criteria.

APPLICATION for a judicial review of an order made under the Municipal Freedom of Information and Protection of Privacy Act.

Gombu v. Mitchinson (2002), 2002 53259 (ON SCDC), 59 O.R. (3d) 773, 214 D.L.R. (4th) 163, 31 M.P.L.R. (3d) 277, 21 C.P.R. (4th) 96 (Div. Ct.) [Leave to appeal granted, [2002] O.J. No. 3309 (C.A.)], distd Other cases referred to Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, 209 N.R. 20, 71 C.P.R. (3d) 417; John Doe v. Ontario (Information & Privacy Commissioner) (1993), 1993 3388 (ON SCDC), 13 O.R. (3d) 767, [1993] O.J. No. 1527, 106 D.L.R. (4th) 140 (Div. Ct.); Right to Life Assn. of Toronto and Area v. Metropolitan Toronto District Health Council, 1991 8250 (ON SCDC), [1991] O.J. No. 2129, 86 D.L.R. (4th) 441, 53 O.A.C. 231, 7 Admin. L.R. (2d) 306 (Div. Ct.) Statutes referred to Assessment Act, R.S.O. 1990, c. A.31, ss. 13, 14, 15, 16, 39, 53 Collection Agencies Act, R.S.O. 1990, c. C.14 Education Act, R.S.O. 1990, c. E.2 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 9 Municipal Act, 2001, S.O. 2001, c. 25 Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 88 Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, ss. 2, 11, 14, 15 Municipal Property Assessment Corporation Act, 1997, S.O. 1997, c. 43, ss. 9, 12 Provincial Land Tax Act, R.S.O. 1990, c. P.32

Mahmud Jamal and Jennifer Lynch, for applicant. William S. Challis, for Tom Mitchinson (Assistant Commissioner). Tamar Witelson and Louis Sokolov, for Security Recovery Group Inc. Leslie McIntosh, for Attorney General of Ontario.

BY THE COURT:--

Introduction

1The Assistant Information and Privacy Commissioner has ordered a government agency, the Municipal Property Assessment Corporation ¹ ("MPAC"), to hand over to a collection agency an electronic record containing personal information concerning [page306] more than ten million Ontario residents. The collection agency, Security Recovery Group Inc. ("SRG"), ² asked MPAC for the information, stored on eight CDs, to use to help it find judgment debtors. When MPAC refused, SRG appealed to the Information and Privacy Commissioner. The respondent, Assistant Commissioner Mitchinson ("the Commissioner"), allowed the appeal and ordered MPAC to provide the electronic record to SRG, free of charge. ³

2MPAC now applies for judicial review of the Assistant Commissioner's order. The Attorney General for Ontario has intervened in support of MPAC. ⁴

Background

(a) MPAC'S legislative authority

3MPAC is a not-for-profit corporation created under the Municipal Property Assessment Corporation Act, 1997, S.O. 1997, c. 43, as amended ("MPAC Act"). MPAC administers a province- wide property valuations system based on current value assessment. Among its responsibilities is the annual creation of a municipal assessment roll for each municipality for its use in calculating property taxes. MPAC's mandate to prepare the annual assessment rolls is governed by the Assessment Act. Section 14 of the Assessment Act specifies the information that MPAC is required to include on the assessment roll. It includes the following:

-- A description of the property sufficient to identify it;

-- The name and surnames, in full, of all persons liable to assessment in the municipality;

-- The person's religion, if they are a Roman Catholic;

-- The type of school board the person supports under the Education Act;

-- The number of acres, or other measures showing the extent of the person's land; [page307]

-- The current value of the parcel of land;

-- The value of land leased to tenants; and

-- The name of every tenant who is a supporter of a school board.

4MPAC also collects other personal information about property owners or occupiers pursuant to its duties under other statutes. ⁵ The information includes gender, citizenship, year and month of birth, spousal relationship of the owner/occupant, the mailing address of the property, and whether the owner/ occupant is disabled or a senior. ⁶ Failure to comply with MPAC's lawful demand for information is an offence under s. 13 of the Assessment Act.

5MPAC uses forms to gather personal information from individuals. The forms reassure their recipients that the information will be "protected", and used for limited purposes. The following is an example from a "Municipal and School Board Elections" form: ⁷

Note: This information is collected under the authority of section 15 of the Assessment Act and is protected under the Municipal Freedom of Information and Protection of Privacy Act. It will also be used for planning purposes by your municipality and local school board, to generate a list of potential jurors, to update information on Ontario's population and to update property assessment records.

6MPAC is required to "deliver the assessment roll to the clerk of the municipality", who then must "make it available for inspection by the public during office hours". ⁸

7Only a paper copy of the assessment roll is provided by MPAC to the clerk of each municipality. The paper copy is provided for a fee based on a statutory formula. ⁹ If the municipality wants the roll in electronic format, it must purchase it from MPAC for an additional fee. ¹⁰ [page308]

8MPAC is also authorized to sell information to members of the public for a fee set by MPAC, and upon terms set by MPAC. ¹¹ The information that MPAC sells to the public under this authority is, however, stripped of personal information; it is also subject to licence agreements that limit the purposes for which the information may be used, and prohibit its sale or transfer to others. ¹²

(b) The commissioner's decision

9The Commissioner ordered MPAC to hand over to SRG an electronic record containing the personal information of millions of Ontarians, essentially free of charge and without being subject to the usual licence agreements. The Commissioner accepted that the electronic record contained the personal information of individual residential property owners, pursuant to s. 2(1) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 ("MFIPPA"), but found that the exception under s. 14(1)(d) of MFIPPA applied. Section 14(1)(d) prohibits a head of an institution from disclosing personal information unless another statute expressly authorizes disclosure. The section reads:

14(1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates, except

(d) under an Act of Ontario or Canada that expressly authorizes the disclosure.

10The Commissioner found that s. 39 of the Assessment Act expressly authorizes the head of MPAC to disclose the electronic record. That section provides:

Delivery of roll to clerk

39(1) The assessment corporation shall deliver the assessment roll to the clerk of the municipality and shall do so on or before the date fixed for the return of the roll.

Inspection by public

(2) Immediately upon receipt of the assessment roll, the clerk shall make it available for inspection by the public during office hours.

11The Commissioner also found that MPAC was not entitled to rely on s. 15(a) of MFIPPA which provides that a head may refuse to disclose a record if the record or the information contained in the record has been published or is currently available to the public. [page309]

Issues

12There are three main issues in this appeal:

(i) Did the Commissioner err in concluding that s. 39 of the Assessment Act expressly authorizes disclosure of personal information, thereby engaging s. 14(1)(d) of MFIPPA?

(ii) Did the Commissioner err in finding that MPAC was not entitled to rely on s. 15(a) of MFIPPA and refuse to disclose the record on the basis that it had already been published or is currently available to the public?

(iii) Did the Commissioner err in failing to invite submissions or to consider whether disclosure of the electronic record would harm the economic or other interests of MPAC so as to fall under exemptions from disclosure under s. 11 of MFIPPA?

Standard of Review

13It has been established that the courts should accord a high degree of curial deference to the decisions of the Information and Privacy Commissioner, whose authority to determine freedom of information and protection of privacy issues has been conferred by the legislature. ¹³ Generally, the appropriate standard of review of the Commissioner's decision is one of reasonableness, and the court should not interfere unless the commissioner's decision was clearly wrong. ¹⁴ Where, however, the issue on appeal is the interpretation of an external statute not within the commissioner's particular expertise, the standard of review is one of correctness. See: Gombu v. Mitchinson (2002), 2002 53259 (ON SCDC), 59 O.R. (3d) 773, 214 D.L.R. (4th) 163 (Div. Ct.), at paras. 10-11, leave to appeal granted, [2002] O.J. No. 3309 (C.A.). ¹⁵ Moreover, where the issue on appeal is the interpretation of judicial precedent, the standard of review is also one of correctness. [page310]

Analysis

A. Did the Commissioner err in finding that there is legislation that expressly authorizes MPAC to disclose information for the purposes of s. 14(1) of MFIPPA?

14Section 14 of MFIPPA begins with the general principle that a head "shall refuse to disclose personal information to any person other than the individual to whom the information relates". However, the section specifies certain exceptions to the general rule prohibiting disclosure. The relevant exception in this case is s. 14(1)(d), which permits disclosure where an Act of Ontario or Canada "expressly authorizes the disclosure". ¹⁶

15The Commissioner, in finding that the Assessment Act expressly authorizes disclosure, held that he was governed by the decision of this court in Gombu, supra. That case dealt with disclosure to an investigative journalist of an electronic database containing the names, addresses and telephone numbers of municipal election campaign contributors. The list had been prepared under the Municipal Elections Act, 1996, supra. Under s. 88(5) of that Act, such contribution lists are "public records", and are required to be disclosed regardless of the privacy provisions of MFIPPA. The section reads:

88(5) Despite anything in the Municipal Freedom of Information and Protection of Privacy Act, documents and materials filed with or prepared by the clerk or any other election official under this Act are public records and, until their destruction, may be inspected by any person at the clerk's office at a time when the office is open.

16The principal issue before the court in Gombu was whether or not the electronic database was caught by s. 88(5) of the Municipal Elections Act, 1996, and if so, whether that section expressly authorized the disclosure of the database, within the meaning of s. 14(1) of MFIPPA. The court held that the electronic database had been prepared by the clerk under the Municipal Elections Act, and accordingly s. 88(5) applied and MFIPPA had no application. Moreover, the court held that because of the importance of transparency of the democratic process, and the diminished expectation of privacy with respect to the subject information, it was not reasonable for the commissioner to refuse to direct disclosure of the electronic database. [page311]

17We have concluded that, by holding that Gombu was indistinguishable and thus determinative of the issue before him, the Commissioner erred in three respects:

(i) by finding that s. 39 of the Assessment Act expressly authorized the disclosure of the electronic record sought by SRG,

(ii) by failing to properly address the purposes of the statutes and the nature of the disclosure requests in both cases, and

(iii) as a result of the first two errors, by finding that since the information sought was available on paper, the electronic version of the information must also be disclosed.

(i) Statutory authorization under s. 39 of the Assessment Act

18In Gombu, s. 88(5) of the Municipal Elections Act, 1996, mandated disclosure of the electronic record. In this case however, the Assessment Act contains no such mandate. The Assessment Act neither obligates nor authorizes MPAC to do anything besides making the municipal rolls available to the municipal clerk. We do not accept the Commissioner's submission that because the "head" and the "clerk" are part of the same institution, it does not matter who is named in the statute as having the authority to disclose the information. To override the important privacy interests addressed in MFIPPA, MPAC must have express authorization to disclose.

(ii) Purpose of the statutes and the nature of the disclosure requests

19In our view, in finding that Gombu was indistinguishable from this case, the Commissioner erred by failing to properly consider the differing contexts of the two cases, and the very different purposes of the legislative scheme under consideration. In Gombu, the court emphasized the importance of transparency in the democratic process, and observed that the legislative scheme under consideration "constitutes a policy that recognizes that public accountability in the election process should, where necessary, override individual privacy interests". ¹⁷ In contrast, there are no compelling public policy considerations that override the privacy interests at stake in the case before us. Indeed, the information being sought by the respondent SRG, a collection agency, [page312] would be used by it for purely commercial purposes. The information contained in the electronic database was obtained by statutory compulsion and the individuals providing it were told that the information was "protected" under MFIPPA. ¹⁸ Clearly, members of the public who were required to provide the personal information in question would reasonably expect their legitimate privacy interests to be protected. The information at stake here was gathered for four main purposes: to allow for the creation of assessment rolls for municipalities (Assessment Act, s. 14); to identify those entitled to vote in municipal elections (Assessment Act, s. 15); to create an annual school support list (Assessment Act, s. 16); and to generate a list of eligible potential jurors (MPAC Act, s. 9(2)).

(iii) Paper vs. electronic records

20The Commissioner held that since the requested data in this case was electronic and was also available in paper form, Gombu required its disclosure. We have already explained why this interpretation was incorrect, given the differing statutory contexts. Gombu did not purport to hold that if paper records were required to be disclosed, it followed that electronic records should as well. Gombu held that, in the context of protecting the integrity of the democratic process, the difference between electronic and paper records was not a sufficient basis for refusing to disclose them in electronic form. In the case before us, the context and the competing interests are obviously quite different.

21The errors that we have already identified require that we quash the Commissioner's order. We will therefore discuss the remaining two issues only briefly.

B. Did the Commissioner err in holding that MPAC was not entitled to rely on s. 15(a) of MFIPPA?

22Section 15(a) of MFIPPA provides:

15. A head may refuse to disclose a record if,

(a) the record or the information contained in the record has been published or is currently available to the public.

(Italics added)

23The Commissioner held that the record in question in this case does not qualify for exemption under s. 15(a) of MFIPPA. Although the electronic record itself is not available to the public, [page313] the information contained in the record is available in paper form for the public to inspect. We are of the view that in these circumstances, s. 15(a) confers authority upon the head to prohibit disclosure under MFIPPA.

C. Did the Commissioner err in failing to invite submissions or to consider whether disclosure of the electronic record would harm the economic or other interests of MPAC so as to fall under exemptions from disclosure under s. 11 of MFIPPA?

24The Commissioner submits that we should not address this issue for two reasons. The first is that it has been raised for the first time on appeal. The second and more compelling submission is that the s. 11 exemption raises significant issues about the ownership of government information and harm to the economic or other interests of an institution. These issues, it is submitted, should not be addressed in this court at first instance. In light of the conclusions we have reached upon other grounds raised in this appeal, it is not necessary to consider this issue and we decline to do so.

Conclusion

25In light of the conclusions that we have reached, it follows that the decision of the Commissioner must be quashed. The matter is remitted to the Commissioner for a new hearing upon proper criteria.

Costs

26All parties (except the intervenor) requested costs. The public interest issues here, coupled with the issues of statutory and precedent interpretation make this a novel case. Costs are not appropriate. Each party will bear its own costs.

Footnotes

1. 1The information is prepared for each municipality pursuant to the provisions of the Assessment Act, R.S.O. 1990 c. A.31.
2. 2SRG is registered under the Collection Agencies Act, R.S.O. 1990, c. C14.
3. 3Order MO-1693, the September 20, 2003 decision of the respondent, Assistant Information and Privacy Commision Tom Mitchinson, Public Record, Vol. 2, p. 488.
4. 4The Attorney General is entitled to intervene as of right, under s. 9(4) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
5. 5The statutes include the Municipal Elections Act, 1996, S.O. 1996, c. 32, as amended; the Education Act, R.S.O. 1990, c. E.2, as amended; the Municipal Act, 2001, S.O. 2001, c. 25 as amended; and the Provincial Land Tax Act, R.S.O. 1990, c. P.32, as amended.
6. 6Public Record, vol. 1, pp. 38, 39, 41, 42, 57.
7. 7Public Record, vol. 1, p. 177.
8. 8Section 39(1) and (2) of the Assessment Act.
9. 9Sections 12(1) and (2), MPAC Act.
10. 10Such additional fees are authorized by s. 12(5) of the MPAC Act.
11. 11Section 12(5) of the MPAC Act, and s. 53(5) of the Assessment Act.
12. 12Public Record, vol. 1, p. 187, and vol. 2, p. 392.
13. 13Right to Life Assn. of Toronto and Area v. Metropolitan Toronto District Health Council, 1991 8250 (ON SCDC), [1991] O.J. No. 2129, 86 D.L.R. (4th) 441 (Div. Ct.) and John Doe v. Ontario (Information and Privacy Commissioner) (1993), 1993 3388 (ON SCDC), 13 O.R. (3d) 767, [1993] O.J. No. 1527 (Div. Ct.)
14. 14See Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, at pp. 776-77 S.C.R., p. 19 D.L.R.
15. 15The appeal was subsequently abandoned.
16. 16Section 14(d) is reproduced in para. 9, above.
17. 17Gombu, supra, at para 22.
18. 18See para. 5, above.