CITATION: Aecon Construction Group Inc. v. Information and Privacy Commissioner of Ontario, 2015 ONSC 1392
DIVISIONAL COURT FILE NO.: 197/14
DATE: 20150302
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
AECON CONSTRUCTION GROUP INC. and SNC-LAVALIN NUCLEAR INC. Applicants
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondent
Catherine Beagan Flood and Nicole D. Henderson, for the Applicants Lawren W. Murray, for the Respondent
HEARD at Toronto: March 2, 2015
SACHS J. (ORALLY)
Nature of Proceeding
[1] This is an application for judicial review of an Order by an Adjudicator on behalf of the respondent Information and Privacy Commissioner of Ontario (“the Commissioner”). In February 2014, the Commissioner ordered the partial disclosure of the applicant companies’ contracts for refurbishing the Darlington Nuclear Generating Station, pursuant to the Freedom of Information and Protection of Privacy Act (“FIPPA”).
[2] The applicants argue that:
(i) the Commissioner violated procedural fairness; and
(ii) the Commissioner erred in her interpretation and application of s. 17(1) of FIPPA.
Standard of Review
[3] All parties agree that the standard of review with respect to the Commissioner’s interpretation and application of s. 17(1) of FIPPA is reasonableness. With respect to the breach of the duty of fairness, no standard of review analysis is required. The court must determine whether the duty of fairness has been breached. However, in considering claims of breach of procedural fairness, courts should be “respectful of the agency’s choices” in how they meet their duty of procedural fairness. (Re Sound v. Fitness Industry Council of Canada, 2014 FCA 48; Gravenhurst (Town) v. Ontario (Information and Privacy Commissioner), [1994] O.J. No. 2782).
Did the Commissioner Breach the Duty of Fairness?
[4] The applicants submit that the duty of procedural fairness was breached in two ways. First, the Commissioner failed to provide them with a copy of the revised index of records in issue (“the Revised Index”), which emerged from the mediation between the Requestor and Ontario Power Generation (“OPG”) (the institution to whom the FIPPA request was directed). As a result of that mediation, the scope of the records that the Requestor was seeking was narrowed and OPG prepared a Revised Index to reflect that narrowing.
[5] According to the applicants, they were not provided with a copy of the Revised Index by the Commissioner and as a result, they were not in a position to focus their submissions to the Commissioner in the way that they would have liked.
[6] The first point to be made about this submission, is that there is no suggestion by the applicants that the Commissioner adjudicated more than they thought she was going to adjudicate and that that adjudication included issues they were never given the ability to address. Rather, they argue that the Commissioner adjudicated less than they thought she would and that in their submissions they addressed more issues than were actually necessary.
[7] There is a real question as to whether having the opportunity to be heard on more issues than are actually decided constitutes a breach of the duty of procedural fairness. Assuming that it does constitute such a breach, we agree with the respondent that in this case, even without being in possession of the Revised Index, the applicants knew the substance of what records were in issue. We say this because the Notice of Inquiry that the Commissioner served on the applicants explained that the Requestor’s request had been narrowed through mediation such that “the focus of his request is records relating to the cost of the project to OPG, timelines, penalties for failing to complete the project on time, and potential for cost overruns to be passed on to OPG.”
[8] We also agree with the respondent’s submission that the applicants’ failure to obtain the Revised Index lies at their own feet. On December 3, 2012, the Commissioner told the applicants in writing that if they had any questions about the records in dispute they should contact a particular person at OPG. Instead of doing so, the applicants wrote to another person at OPG on December 11, 2012 and received no reply. On December 12, 2012, the applicants wrote to the Commissioner and requested a copy of the Revised Index. On the same day the Commissioner told them to contact the same person that the Commissioner had told them to contact on December 3, 2012. The applicants never did so and never advised the Commissioner that they had been unable to obtain the Revised Index from OPG. Nor did they indicate that they were in any way unable to focus their submissions to the Commissioner because they had been unable to obtain the Revised Index.
[9] The applicants argue that the duty of procedural fairness is one that was owed to them by the Commissioner and not by OPG. Thus, it was no answer for the Commissioner to tell them to contact OPG to obtain the Revised Index. This submission ignores the provisions of s. 55 of FIPPA and the procedures which the Commissioner has adopted to deal with their obligations under this provision to which deference is owed by this Court. Section 55 requires the Commissioner not to disclose “any information that comes to their knowledge in the performance of their powers, duties and functions under this or any other Act.” The Revised Index was prepared by OPG and did contain some descriptive information concerning the provisions of the disputed records. In order to avoid being in breach of s. 55, the Commissioner has developed a general practice of not disclosing any records itself. Instead, it gets the institutions whose records they are to disclose the records. If they do not do so on consent, steps can be taken by the Commissioner to order that disclosure. In this case, presumably, if the Commissioner had known that OPG had not disclosed the Revised Index to the applicants, it could have asked for OPG’s consent to disclose the Revised Index to the applicants themselves, or it could have ordered OPG to make that disclosure. Having said this, since the applicants and OPG took the same position on the FIPPA appeal and OPG adopted the applicants’ submissions on the appeal, it is hard to believe that OPG would not have provided the Revised Index to the applicants had the applicants directed their request to the right person.
[10] The applicants’ second submission on the procedural fairness issue is that the Notice of Inquiry was confusing as to the test that the Commissioner intended to apply under s. 17(1). In this respect, the applicants state that they read this notice and came to the conclusion that their tender documents would be covered by the inferred disclosure exception.
[11] We see no merit to this submission. There is nothing inaccurate in the Notice of Inquiry. The Notice of Inquiry makes specific reference to previous decisions of the Commission dealing with tender documents that the applicants could have obtained from the Commission’s website. The duty of procedural fairness does not include anticipating the arguments that a party may choose to make and correcting any false assumptions that those arguments may be based on.
Did the Commissioner Unreasonably Interpret and Apply Section 17(1) of FIPPA?
[12] In our view, taken as a whole, the Commissioner’s decision on the interpretation and application of s. 17(1) was well articulated, justifiable, intelligent and transparent. It also fell well within the range of reasonable and accepted outcomes.
[13] The Commissioner’s interpretation of s. 17(1) of FIPPA was consistent with the jurisprudence developed by the Commission, jurisprudence which has been specifically upheld by this Court, six times. In Miller Transit Ltd. v. Ontario (Information and Privacy Commissioner), 2013 ONSC 7139, this Court dealt with a submission that the Commission’s approach to s. 17(1) is no longer good law given the Supreme Court of Canada’s decision in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3. The same submission was made before us. For the reasons cited by Himel J. in Miller, we reject that submission. Unlike this case, Merck did not deal with a request for the disclosure of a government contract. As the Court in Miller observed at para. 44:
“…public access to information contained in government contracts is essential to government accountability for expenditures of public funds.”
[14] Thus, narrowing exemptions for the disclosure of government contracts is entirely consistent with the purposes of FIPPA.
Conclusion
[15] For these reasons, the application is dismissed.
[16] I have endorsed the Application Record, “This application is dismissed for reasons given orally by Sachs J. As per the agreement of the parties, there shall be no order as to costs.”
___________________________ SACHS J.
HAMBLY J.
M. EDWARDS J.
Date of Reasons for Judgment: March 2, 2015
Date of Release: March 5, 2015
CITATION: Aecon Construction Group Inc. v. Information and Privacy Commissioner of Ontario, 2015 ONSC 1392
DIVISIONAL COURT FILE NO.: 197/14
DATE: 20150302
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
AECON CONSTRUCTION GROUP INC. and SNC-LAVALIN NUCLEAR INC. Applicants
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 2, 2015
Date of Release: March 5, 2015