COURT FILE NO.: 63/2004
DATE: 2005/10/25
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Peter CURRIE (Applicant)
AND
BERNARD MORROW, Information and Privacy Commissioner of Ontario, and city OF toronto and The cathedral church of st. james (RESPONDENTS)
BEFORE: Justice Epstein
COUNSEL: David S. Goodis, for Bernard Morrow, Information and Privacy Commissioner of Ontario (moving party)
Glenn K. Chu, for the City of Toronto
Jason Murphy, for the Rector and Churchwardens of The Cathedral Church of St. James
Peter Currie, Self-Represented (D. Grange, Agent)
HEARD: October 14, 2005
E N D O R S E M E N T
EPSTEIN J.
[1] The Information and Privacy Commissioner seeks relief relevant to the record that will be put before the Divisional Court for the purposes of a pending judicial review as well as a ruling with respect to joinder. The issues of primary concern pertain to what should be in the Public and what should be in the Private Record before the Divisional Court.
[2] A brief background to the matters before me is as follows.
[3] The applicant (the “Church”) has applied for judicial review to set aside an order of the Commissioner dated May 4, 2005. There is a history to this order.
[4] On December 16, 2002 Mr. Currie made a request to the City under the Municipal Freedom of Information and Protection of Privacy Act for access to a legal opinion. The legal opinion is 6 pages in length but at some point, early in this process, 4 pages were attached to it, making the document in issue, at least physically, 10 pages in length.
[5] On February 28, 2003 the City denied access to the document (all 10 pages) on the basis of solicitor and client privilege – an exemption found under s. 12 of the Act. Mr. Currie appealed this decision to the Commissioner.
[6] On January 19, 2004 the Commissioner issued Order MO-1742, which upheld the City’s decision to deny access to the records.
[7] On February 9, 2004 Mr. Currie brought an application for judicial review of this decision (the “First Judicial Review”). On January 24, 2005 the Commissioner issued Order MO-1900-R in which he reversed his earlier decision, identified the record in issue as only the 6-page letter and ordered the City to disclose the opinion in full to Mr. Currie.
[8] On February 7, 2005 the Church served the Commissioner with a notice of application for judicial review of MO-1900-R on the grounds that the Church had not been made a party to the proceedings (the “Second Judicial Review”).
[9] On February 10, 2005 the Commissioner addressed the Church’s concerns by inviting and receiving its submissions on the application of s. 10 and 12 of the Act.
[10] Upon considering the Church’s submissions the Commissioner found no basis to alter its conclusion in Order MO-1900-R and on May 4 2005 it issued the order (MO-1923-R) from which the Church now seeks judicial review on substantive grounds (the “Third Judicial Review”).
[11] Pursuant to s. 10 of the Judicial Review Procedure Act, the Commissioner is required to file the Record of Proceedings for use on the hearing of the application for judicial review.
[12] The Commissioner has assembled two records, a Private Record of Proceedings and a Public Record of Proceedings. Because of the unusual nature of the case, particularly the extensive history, the Commissioner decided to include the entire file in the Records.
The Issues
[13] Against this background the Commissioner seeks an Order essentially blessing the manner in which he has assembled the two Records. The City and the Church support the Commissioner’s position in this respect.
[14] Mr. Currie takes objection to the fact that the Private Record contains the first 4 pages that were attached to the legal opinion as well as certain so-called confidential representations of the City and the Church.
[15] Mr. Currie says:
- The 4 pages that accompanied the legal opinion as well as certain excised portions of the City’s and Church’s representations should be in the Public Record.
- The First Judicial Review should be heard with the one before the Court, the Third Judicial Review.
[16] As an additional issue the Commissioner has asked me to sanction its removing from the record an internal City memorandum that was erroneously included in the record before the Commissioner.
Analysis
[17] With respect to the first issue, the Church advises me that the focus of its judicial review is to persuade the Divisional Court that the record in question should be identified as all 10 pages and that this record should not be disclosed. It follows that the 4 pages in question are key to its judicial review. I accept the argument of the Commissioner, the City and the Church that to order the 4 pages in question to be part of the Public Record would have the effect of predetermining a portion of the judicial review application.
[18] Similarly, I am satisfied that to disclose the excised portions of the submissions of the Church and the City would have the same effect since those portions apparently directly refer to the legal opinion and their placement in the Public Record would partially disclose the contents of the record in issue. I accept the submissions that the minimum amount was redacted – just enough to protect the content of the legal opinion pending the judicial review.
[19] In order to preserve the issues that the Church has brought forward in the Third Judicial Review the content of the Private Record will be as proposed by the Commissioner.
[20] With respect to the relevance of the First Judicial Review, except for the issue of costs, it is moot. The parties are attempting to resolve the issue of costs. If they do not, this matter can be brought to the attention of the Divisional Court at the same time as the Third Judicial Review is being heard.
[21] I now turn to the additional issue of whether the Commissioner can exclude from the Record the internal City memorandum that was erroneously before the Commissioner.
[22] Section 10 of the JRPA states that the decision maker must “file in the court for use on the application, the record of the proceedings in which the decision was made.” The “record of proceedings” is not defined in the JRPA.
[23] In Payne v. Ontario Human Rights Commission (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315, [2000] O.J. No. 2087 (C.A.), Sharpe J.A. addressed the scope of s. 10 of the JRPA at paras. 160-161:
The content of the court record for an application for judicial review is defined by the Judicial Review Procedure Act, R.S.O. 1990, c. J-1 and by the Rules of Civil Procedure. The process begins with the notice of application: Rule 68.01(1). Upon being served with the notice of application for judicial review, the decision-maker is required by s. 10 of the Judicial Review Procedure Act, to file with the Divisional Court "the record of the proceedings in which the decision was made." The "record" is not defined by the Act.
An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed.
[24] It can be argued that the internal memorandum was not used in making the decision; however, this is a question for the Divisional Court to determine. It would not be appropriate for me to sanction an edit of the record that was before the Commissioner. The memorandum should be in the record before the Divisional Court.
Conclusion
[25] An order will issue in accordance with these reasons allowing the Commissioner to include in the Private Record all 10 pages of the document in question and the confidential submissions of the Church and the City. The Public Record will include all documentation that was before the Commissioner, including the internal memorandum. The order will contain the usual provisions concerning the undertaking.
[26] Success has been divided. There will be no order as to costs.
EPSTEIN J.
DATE: October 25, 2005