Court File and Parties
DIVISIONAL COURT FILE NO.: DC11-335-JR
DATE: 20131127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(Central West Region)
MATLOW, ASTON and DONOHUE JJ.
IN THE MATTER of an Order of the Ontario Information Privacy Commissioner dated October 20, 2011, made against The Fort Erie Economic Development and Tourism Corporation
BETWEEN:
FORT ERIE ECONOMIC DEVELOPMENT AND TOURISM CORPORATION Applicant
– and –
ONTARIO (INFORMATION AND PRIVACY COMMISSIONER) Respondent
- and –
REQUESTOR
Counsel:
David A. Hurren, for the Applicant
Lawren Murray, for the Respondent
HEARD: October 1, 2013 at Hamilton
Reasons for Decision
ASTON, J.:
Introduction
[1] Fort Erie Economic Development and Tourism Corporation (“FEEDTC”) brings this judicial review application to challenge two decisions of the Information and Privacy Commissioner (“IPCO”).
[2] In the first decision, October 20, 2012, the IPCO found that FEEDTC was an “institution” under the Municipal Freedom of Information and Protection Privacy Act (“MFIPPA”) and ordered it to respond to a request for information made under that Act (Order MO-2659).
[3] On June 24, 2013, the second IPCO decision confirmed Order MO-2659, notwithstanding the repeal of the regulation underpinning the first decision (Order MO-2904-R).
[4] The issue is whether FEEDTC is an “institution” under MFIPPA and therefore required to respond to a request for information initiated in May 2010.
Background Facts and Legislative History
[5] FEEDTC was incorporated under the Corporations Act, without share capital, in 1992. Its name captures its objectives. There are disputed facts, but ultimately the issue of whether FEEDTC is an institution under MFIPPA is more an exercise in statutory interpretation.
[6] Section 2(1) of MFIPPA provides that an “institution” under that Act includes any corporation “designated as an institution in the regulations”.
[7] The starting point is O. Reg. 392/91 under MFIPPA. At the time of the request for information, and the decision in Order MO-2659, s. 1(1)4 of that regulation provided that a “community development corporation incorporated under s. 109 of the Municipal Act, 2001” is designated as an institution under MFIPPA “ if
(i) the corporation receives assistance from a municipality . . . or
(ii) one or more of the corporation’s directors are nominated by the council of a municipality . . .”
[8] The IPCO found, on the facts, that FEEDTC fall within the scope of this regulation. That was the crux of Order MO-2659.
[9] However, approximately six months later, while FEEDTC was challenging Order MO-2659 by a judicial review application, s. 1(4)4 of O. Reg. 372/91 was revoked. As a consequence the IPCO initiated her own reconsideration of Order MO-2659.
[10] By Order MO-2904R the IPCO affirmed the basis of the original decision, but went on to find that FEEDTC also was deemed to be an institution under a different regulation, O. Reg. 599/06 under the Municipal Act, 2001. Section 20 of that regulation states that a corporation “whose business or activities include the provision of administrative services” to a municipality is deemed to be an institution for the purposes of MFIPPA.
[11] In determining that FEEDTC was a municipal service corporation the IPCO examined the nature of the services it provided to the Town of Fort Erie. The primary focus of FEEDTC is on economic development and promotion. However, the IPCO’s decision assumed that FEEDTC’s primary activity does not foreclose the possibility it is also providing “administrative services” to the municipality. These different services are not mutually exclusive. The IPCO’s factual determinations in this regard are subject to curial deference and are reasonable. We would not interfere with her factual conclusion at para. 53 of the decision which states:
…I am satisfied that the FEEDTC’s activities and services, which include tourism. Promotion, venture coordination and business development services amount to the management of public affairs by the FEEDTC. I also find that it provides these services to the public on the town’s behalf, often with funding provided by the town, and that at least some of these services are ones the town itself could provide. Accordingly, given my finding that the FEEDTC provides administrative services to the town, I find that the substantive requirement of section 20 of Ontario Regulation 599/06 is met.
[12] However, The Commissioner also had to consider whether s.20 or O.Reg 599/06 was applicable as a question of law.
[13] Section 2(3) of O. Reg. 599/06, limits the application of s. 20 to situations when the municipality “uses or expects to use” at least one of a list of enumerated powers in relation to the corporation. The enumerated powers are found in ss. 3, 4(2), 4(3) and 5(1) of the regulation. Only s. 4(2) could apply on the facts of this case. The IPCO found that s.4(2) applied because the Town of Fort Erie “may use the power referred to in paragraph 2 of sub-section 203(12) of the [Municipal] Act [2001] to nominate or authorize a person to act as an incorporator” of the corporation.
[14] In determining as a fact that the municipality had effectively nominated or authorized the mayor to act as an incorporator of FEEDTC in 1992 the IPCO made a finding of fact that was open to her on the evidence. However O. Reg. 599/06 under the Municipal Act, 2001 was not in force when FEEDTC was incorporated in 1992. It is self-evident that the “power to nominate or authorize a person to act as an incorporator” can only actually be exercised before incorporation.
[15] Counsel for the IPCO submits that it was open to the IPCO to give retrospective effect to s. 4(2) of O. Reg. 599/06 because it uses the words “the power referred to” rather than “the power under” s. 203(12) of the Municipal Act, 2001, the statutory authority granting municipalities the capacity to act through corporations. We reject that submission. In 1992, when FEEDTC was incorporated under the Corporations Act, the municipality may have nominated or authorized the mayor to act as an incorporator as a matter of fact, but it did not purport to do so under any statutory power then in effect.
[16] The IPCO erred in law in giving retrospective effect to O. Reg. 599/06. Section 20 of that regulation does not apply because s. 2(3) does apply. Section 2(3) specifies that s. 20 applies only if the municipality “uses or expects to use” one of the enumerated powers that follow. In this case a factual finding that the municipality had used such a power before it had ever that power is an unwarranted extension of the regulation.
[17] Because O. Reg. 5099/06 fails to provide an alternative basis upon which to find FEEDTC to be an institution under MFIPPA, it is necessary to examine the IPCO’s original decision in Order MO-2659. Does s. 1(1)4 of O. Reg. 372/91 support the IPCO’s conclusion and, if so, does the repeal of O. Reg. 372/91 override that conclusion.
[18] As already noted, s. 1(1)4 of O. Reg. 372/91 brings into MFIPPA certain “community development corporations”, specifically those “incorporated under s. 109 of the Municipal Act, 2001” which “receive assistance from a municipality under s.109(4) of that Act” or have “one or more of the corporation’s directors . . . nominated by the council of a municipality” under s.109(10) of that Act.
[19] At para. 24 of the IPCO’s first decision she acknowledged that s. 109 of the Municipal Act, 2001 had been repealed. It was repealed effective January 1, 2007. However, s. 1(1)4 of O. Reg. 372/91 was not formally revoked until April 2012 some six months after her first decision. The IPCO determined that the repeal of s.109 of the Municipal Act, 2001 did not diminish the relevance of s.109 in determining whether FEEDTC is an institution under O. Reg. 372/91. Many community development corporations established before the repeal of s.109 of the Municipal Act, 2001, would thus continue to be subject to MFIPPA if those corporations fell within s. 1(1)4 of O. Reg 372/91 – at least until the revocation of that section of that regulation in April 2012.
[20] It was open to the IPCO to find as a fact on the evidence in this case that the Town of Fort Erie provided financial assistance to FEEDTC on a regular and on-going basis. However, counsel for FEEDTC submits it was not open to the IPCO to find that FEEDTC was “incorporated under s. 109 of the Municipal Act, 2001”. The corporation had been incorporated in 1992 under the Corporations Act.
[21] When FEEDTC was incorporated in 1992 there was a provision in the Municipal Act, R.S.O. 1990 c. M.45 (The “Municipal Act, 1990”) which mirrors s. 109 of the Municipal Act, 2001. Sections 112.2, (1) (2) and (3) of the Municipal Act, 1990 afforded power to municipalities to incorporate community development corporations in language that is indistinguishable from s. 109 of the Municipal Act, 2001.
[22] In this case the IPCO effectively read in the words “or its predecessor, s. 112.2 of the Municipal Act, 1990” when determining that FEEDTC was “incorporated under s. 109 of the Municipal Act, 2001”.
[23] Absent any wording to suggest a legislative intent to discontinue the applicability of MFIPPA to economic development corporations already established under s. 112.2 of the Municipal Act, 1990 there is no reason to impute such an intention. That is particularly so when the relevant language of s. 109 is the Municipal Act, 2001 is virtually identical to the language in s. 112.2 of the Municipal Act, 1990.
[24] The IPCO’s interpretation, and her conclusion that s. 1(1)4 of O. Reg. 371/91 captures FEEDTC as an institution for the purposes of MFIPPA is a reasonable interpretation of the IPCO’s home statute.
[25] The final question is whether the repeal of O. Reg. 372/91 effectively annuls the first decision, Order MO-2659.
[26] Order MO-2659 was correctly decided on the law as it was at the time it was decided. There is no evidence the government simply forgot to repeal or revoke s. 1(1)4 O. Reg. 372/91 in 2001 when the Municipal Statute Law Amendment Act, 2006 repealed s. 109 of the Municipal Act, 2001. In fact the evidence suggests the contrary. Absent any expression of an intention to exclude economic development corporations from MFIPPA retrospectively to January 2007, such a result should not be read into the revocation of s. 1(1)4 of O. Reg 372/91. Rather, the revocation should be assumed to take effect April 2012.
[27] This application is, therefore, dismissed.
[28] Counsel may make written submissions with respect to costs by exchanging them and leaving them in triplicate at the office of the Court at Hamilton within one month of the date of release of these reasons, failing which no award of costs will be made.
ASTON J.
MATLOW J.
DONOHUE J.
Released: November 27, 2013
DIVISIONAL COURT FILE NO.: DC11-335-JR
DATE: 20131127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, ASTON and DONOHUE JJ.
BETWEEN:
FORT ERIE ECONOMIC DEVELOPMENT AND TOURISM CORPORATION Applicant/Appellant
- and
ONTARIO (INFORMATION AND PRIVACY COMMISSIONER) Respondent
- and
REQUESTOR Respondent
REASONS FOR JUDGMENT
THE COURT
Released: November 27, 2013