Ministry of Community Safety and Correctional Services v. Information and Privacy Commissioner
CITATION: Ministry of Community Safety and Correctional Services v. Information and Privacy Commissioner, 2014 ONSC 3295
DIVISIONAL COURT FILE NO.: 249/13
DATE: 20140529
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. MORAWETZ, DAMBROT AND TOSCANO ROCCAMO JJ.
BETWEEN:
MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER and TORONTO STAR NEWSPAPERS LIMITED
Respondents
COUNSEL:
Sara J. Blake, for the Applicant
Lawren W. Murray, for the Respondent, Information and Privacy Commissioner of Ontario
HEARD at Toronto: May 29, 2014
ORAL REASONS FOR JUDGMENT
MORAWETZ R.S.J. (ORALLY)
[1] This application raises two issues. First, was there a breach of the duty of procedural fairness in failing to give notice to the victims or representatives of deceased victims? Second, was there an absence of a reasonable basis for the IPC’s conclusion that there is a compelling public interest in disclosure of the dates when DNA samples were collected, analyzed and reported to the National DNA database?
[2] On the first issue, although the IPC has discretion as to whether the IPC is to inform persons with an interest in the appeal, such discretion under s. 50(3) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 has to be informed having regard to the principles of natural justice, a point conceded by counsel to the IPC.
[3] In this case, the IPC informed Mr. Williams of the appeal but did not inform the victims or the direct representatives of deceased victims notwithstanding that the privacy rights of the victims and deceased victims were, in our view, clearly engaged.
[4] The failure to inform the victims and representatives of deceased victims constitutes, in our view, a breach of the duty of procedural fairness. Notice would have given the victims an opportunity to advise by letter whether or not they would suffer distress if the records were disclosed to the media and public.
[5] All four of the victims or their representatives were, in our view, denied the opportunity to make submissions on whether there was a compelling public interest in disclosure that clearly outweighed victims’ elevated rights to privacy.
[6] In our view, the duty of procedural fairness requires that the victims be given an opportunity to make submissions to the IPC.
[7] Notwithstanding the breach, the Applicant does not seek an order referring the matter back to the IPC for reconsideration on notice to the victims because, in the absence of a reasonable basis for the IPC’s conclusion that there is a compelling public interest in disclosure, the need to give notice to affected persons is not triggered.
[8] In our view, this outcome is not an appropriate remedy. In order to properly determine that there is a compelling public interest in disclosure requires a full and complete balancing of interests. This has not occurred due to the lack of information being provided to the victims and direct representatives of victims and the consequent incomplete record resulting from this oversight.
[9] The appropriate remedy is to allow the application and refer the matter back to the IPC for reconsideration on notice to the victims and representatives of victims.
[10] The applicant did not request costs. An order shall issue to reflect the foregoing.
[11] I have endorsed the Application Record as follows, “For oral reasons application allowed and referred back to IPC. No costs. All sealed materials to be resealed.”
MORAWETZ R.S.J.
DAMBROT J.
TOSCANO ROCCAMO J.
Date of Reasons for Judgment: May 29, 2014
Date of Release: June 18, 2014
CITATION: Ministry of Community Safety and Correctional Services v. Information and Privacy Commissioner, 2014 ONSC 3295
DIVISIONAL COURT FILE NO.: 249/13
DATE: 20140529
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ R.S.J., DAMBROT AND TOSCANO ROCCAMO JJ.
BETWEEN:
MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER and TORONTO STAR NEWSPAPERS LIMITED
Respondents
ORAL REASONS FOR JUDGMENT
MORAWETZ R.S.J.
Date of Reasons for Judgment: May 29, 2014
Date of Release: June 18, 2014