Trustees of the Bricklayers and Stonemasons Union Local 2 Ontario Pension Plan v. Information and Privacy Commissioner of Ontario et al.The Canadian Bricklayers and Allied Craft Unions Members Pension Trust v. Information and Privacy Commissioner of Ontario et al.

[Indexed as: Bricklayers and Stonemasons Union Local 2 (Trustees of) v. Ontario (Information and Privacy Commissioner)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Sachs, Stewart and Horkins JJ.

August 22, 2016

132 O.R. (3d) 1 | 2016 ONSC 3821

Case Summary

Administrative law — Freedom of information — Representative of rival union seeking access to financial reports filed by trustees of union pension plans — Rival union intending to use reports in raiding unions — Privacy commissioner granting access — Commissioner finding that trustees had failed to provide sufficiently detailed and convincing evidence that disclosure could reasonably be expected to cause harm and that anticipated harm would be caused by raiding and not by disclosure — Application for judicial review of commissioner's decision allowed — Commissioner applying too burdensome standard of proof and too stringent test for causation of harm.

The applicants were trustees of multi-employer pension plans of which the members of two construction unions were beneficiaries. A representative of a rival union sought access to financial records and other confidential information of the pension plans filed by the applicants with the Financial Services Commission. The rival union intended to use these records during the construction industry's "raiding season", the period during which construction unions may file displacement applications to raid another union's membership. The Information and Privacy Commissioner granted access to the records after finding that the applicants had not provided sufficiently detailed and convincing evidence that the disclosure of the records could reasonably be expected to cause any of the harm set out in s. 17 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 and that the anticipated harm would be caused by raiding and not by the disclosure of the records. The applicants brought applications for judicial review of the commissioner's decision.

Held, the applications should be allowed.

Per Stewart J. (Horkins J. concurring): The commissioner applied too onerous a standard of proof in assessing whether the disclosure of the records would give [page2 r]ise to a reasonable expectation of harm, and too stringent a standard of causation of harm. The applicants were only required to establish a reasonable expectation of probable harm. Reasonable expectation of probable harm cannot be merely fanciful, imaginary or contrived but requiring a party to demonstrate that harm is more likely than not to occur sets the legal burden too high. The standard of proof is higher than mere possibility but lower than balance of probabilities. The disclosure of the records would reveal information that could be used by any competing union to justify its pension plan to its own members and persuade them not to move to another union; to create dissent among members of a target union; and to give rival unions a strategic advantage in a raid campaign. If these raids were to be successful, this would necessarily result in a financial loss to the applicants' pension plans and to their beneficiaries and contributing employers. These types of harm were to be reasonably expected in the circumstances. That the applicants could not show that this harm had happened in the past was of very little assistance in determining the degree of risk in these circumstances. The commissioner's decision was not reasonable.

Per Sachs J. (dissenting): The commissioner's decision was reasonable. The words "detailed and convincing evidence" were not used to describe a higher standard of proof. Rather, they spoke to the cogency and quality of the evidence required to establish a reasonable expectation of harm. The commissioner did not err in her causation analysis. She was entitled to find that there was no detailed and convincing evidence to support a direct connection between releasing documents about their pensions to union members and the increased likelihood of success of an otherwise unsuccessful displacement application.

Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 S.C.R. 23, [2012] S.C.J. No. 3, 2012 SCC 3, 426 N.R. 200, 2012EXP-388, J.E. 2012-214, 99 C.P.R. (4th) 65, 342 D.L.R. (4th) 257, 210 A.C.W.S. (3d) 385; Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 S.C.R. 674, [2014] S.C.J. No. 31, 2014 SCC 31, 457 N.R. 2, 2014EXP-1308, J.E. 2014-729, EYB 2014-236192, apld

Other cases referred to

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, 2009 SCC 12, 304 D.L.R. (4th) 1, 385 N.R. 206, 77 Imm. L.R. (3d) 1, 82 Admin. L.R. (4th) 1, EYB 2009-155418, J.E. 2009-481, 175 A.C.W.S. (3d) 7; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, [2013] S.C.J. No. 34, 2013 SCC 34, 285 C.R.R. (2d) 150, 445 N.R. 1, 2013EXP-2076, 2013EXPT-1167, J.E. 2013-1102, D.T.E. 2013T-418, 77 C.H.R.R. D/304, EYB 2013-223151, 404 N.B.R. (2d) 1, 52 Admin. L.R. (5th) 1, 359 D.L.R. (4th) 394, 231 L.A.C. (4th) 209, [2013] CLLC Â220-037, 228 A.C.W.S. (3d) 5; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Gencorp Canada Inc. v. Ontario (Superintendent of Pensions) (1998), 1998 2947 (ON CA), 39 O.R. (3d) 38, [1998] O.J. No. 961, 158 D.L.R. (4th) 497, 114 O.A.C. 170, 37 C.C.E.L. (2d) 69, 78 A.C.W.S. (3d) 170 (C.A.); John Doe v. Ontario (Finance), [2014] 2 S.C.R. 3, [2014] S.C.J. No. 36, 2014 SCC 36, 457 N.R. 40, 320 O.A.C. 135, 373 D.L.R. (4th) 601, 2014EXP-1471, J.E. 2014-826, EYB 2014-236837, 69 Admin. L.R. (5th) 289, 239 A.C.W.S. (3d) 1048; [page3 <]i> Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, 223 D.L.R. (4th) 577, 302 N.R. 1, J.E. 2003-713, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 172; Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 38 Admin. L.R. (5th) 255, 97 C.C.E.L. (3d) 199, 208 A.C.W.S. (3d) 435; O.S.S.T.F., District 39 v. Wellington (County) Board of Education (February 6, 1995), Toronto, Doc. 407/93 (Ont. Div. Ct.), leave to appeal refused October 16, 1995, Doc. M15357 (C.A.)

Statutes referred to

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss. 1(a)(iii), 14 [as am.], 17(1) [as am.], (a), (b), (c), 19 [as am.], 53, 67(1), (2)

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 162(3)

Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 1(1) [as am.], (3) [as am.], 29 [as am.]

Rules and regulations referred to

General, R.R.O. 1990, Reg. 990 [as am.], s. 6(4) (b)

Authorities referred to

Public Government for Private People — The Report of the Ontario Commission on Freedom of Information and Individual Privacy 1980, Vol. 2 (Toronto: Queen's Printer, 1980)

APPLICATIONS for judicial review of a decision of the Information and Privacy Commissioner.

David P. Jacobs and Steven G. Bosnick, for applicant trustees of the Bricklayers Stonemasons Union Local 2 Ontario Pension Plan.

Lorne A. Richmond and Kelly M. Doctor, for applicant Canadian Bricklayers and Allied Craft Unions Members Pension Trust.

Lawren Murray, for respondent Information and Privacy Commissioner of Ontario.

Sara Blake and Meagan Williams, for respondent Minister of Finance and the Financial Services Commission of Ontario.

D. Wray, for intervenor Joseph Maloney.

STEWART J. (HORKINS J. concurring): —

Nature of the Applications

[1] There are two applications for judicial review before this court which are being heard together and which seek the same relief.

[2] The applicants are trustees of multi-employer pension plans of which the members of two construction unions are [page4 b]eneficiaries. They request an order setting aside the decision and order of the Information and Privacy Commissioner of Ontario ("commissioner") dated March 24, 2015, which ordered that access to certain financial records and other confidential information of these pension plans prepared and filed by the applicants with the Financial Services Commission of Ontario ("FSCO") be given to a representative of a rival union. They submit that the commissioner erred in law in granting the order and that the decision to do so was unreasonable.

[3] The respondents the Minister of Finance ("MOF") and the FSCO support the position taken by the applicants on this review.

[4] The respondent IPC and the intervenor Joseph Maloney ("Maloney") take the position that the IPC's decision was reasonable and should be upheld.

Background

[5] The applicants oversee the administration of multi-employer pension plans for members of two unions: the Bricklayers and Stonemasons Union Local 2 ("Local 2") and the Canadian Bricklayers and Allied Craft Unions ("BACU"). The applicants are recognized as administrators of the pension plans under s. 1(1) of the Pension Benefits Act, R.S.O. 1990, c. P.8 for the purposes of their regulation.

[6] Section 1(3) of the Pension Benefits Act allows for the existence of multi-employer pension plans such as these. These special plans require the various and several employers of the plans' members to pay contributions into a single plan for their benefit.

[7] Ontario Regulation 990 promulgated under the Pension Benefits Act sets out a series of stringent reporting requirements that these pension plans must satisfy. Mandated regular reports are to be filed with the FSCO which operates under the authority of the MOF.

[8] In addition to the more general reporting requirements contained in the Pension Benefits Act, s. 6(4)(b) of Regulation 990 specifically requires the administrators of multi-employer pension plans to report to FSCO whenever there are any funding shortfalls.

[9] Among the materials and information that must be provided to FSCO by the applicants and others in similar situations are actuarial valuation reports of the plans for which they are responsible. According to the applicants, these actuarial valuation reports contain sensitive information about the plans, including assessments of the plan's financial viability and lists of the plan's assets and contribution requirements for employers. [page5 ]

[10] The parties acknowledge that the information which is the subject matter of the order of the commissioner under review is financial in nature.

[11] These actuarial valuation reports and other information required to be provided to FSCO are not generally available to the public. There is a short list of exceptions to this provision for general confidentiality in s. 29 of the Pension Benefits Act, which permits plan members, members' spouses, union representatives who are parties to the plan and employers to be given access to this information.

[12] It is therefore evident that the information under consideration for disclosure is sensitive financial information provided to the FSCO under compulsion of law and with the understanding that it will be held in confidence, subject to s. 29 of the Pension Benefits Act.

[13] The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers ("IBB") is a union that is a rival to Local 2 and the BACU. Maloney is the IBB's international vice-president.

[14] Every three years, the construction industry experiences a period known colloquially as "raiding season". This is a period during which construction unions may file displacement applications to raid another union's membership. As opposed to other industries where competing unions file displacement applications on a timeline based on the particular expiration date of an individual collective agreement, s. 162(3) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A requires most agreements within the construction industry to end every three years on April 30. Therefore, construction unions may only file displacement applications during the two months leading up to this deadline. The most recent raiding season, in 2016, has just ended.

[15] This relatively short window of opportunity is routinely rife with inter-union conflict. For instance, during the raiding season in 2013, approximately 170 displacement applications involving such unions were filed with the Ontario Labour Relations Board.

[16] It is within the context of these regular acrimonious raiding seasons that Maloney sought access from the MOF to the otherwise confidential financial information of the pension plans administered by the applicants for the benefit of beneficiaries of the plans, some of whom are members of certain unions rival to Maloney's union, the IBB. [page6 ]

Request for Access to Information

[17] On February 21, 2013, Maloney filed an access to information request with the MOF. In his request, Maloney asked for access to documents filed with the MOF between January 2007 and February 2013 involving pension plans administered by the applicants, including the following:

(a) audited financial statements;

(b) annual information returns;

(c) investment information summaries;

(d) actuarial valuations or other actuarial reports; and

(e) member information booklets.

[18] Maloney does not fall within the enumerated persons and organizations that are named exceptions in s. 29 of the Pension Benefits Act and therefore does not have specific statutory authority to have access to these records.

[19] In response to Maloney's request, the MOF identified 140 records considered responsive to the request. After obtaining submissions from the applicants (who were not informed as to the identity of the person who had requested access), the MOF granted access to Maloney to 66 of the 140 records. The records disclosed did not contain any sensitive financial information.

[20] The rest of the documents were withheld in reliance on ss. 17(1) and 19 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("FIPPA"), which protect third party information and solicitor-client privilege.

[21] On June 21, 2013, Maloney filed an appeal with the commissioner of the MOC decision to deny access to some of the records sought. After narrowing the issues on appeal and the relevant records in issue during mediation, the commissioner sent the affected parties notices of inquiry. These notices addressed matters such as the burden of proof, the issues on appeal and documentation that would be helpful to the commissioner.

[22] After the parties had made initial written submissions, the applicants and MOF were allowed to make reply submissions. Maloney was then allowed to make a sur-reply.

[23] Accordingly, the process before the commissioner was conducted purely on the basis of a documentary record and submissions by the parties made in writing. [page7 ]

Decision of the Commissioner

[24] By a decision dated March 24, 2015, the commissioner granted Maloney's appeal and ordered the MOF to release the remaining records at issue by no later than April 30, 2015.

[25] In making the order, the commissioner stated [at paras. 66-69]:

The main argument advanced by the ministry and the affected parties in regard to the harms contemplated in section 17(1) (a) and (c) is that the records could be used by other trade unions to displace or raid the trade union that represents the members of the plan, resulting in members transferring their pensions out of the plan. This raiding of pension assets, they submit, can cause financial harm to the beneficiaries who remain in the plan, by reducing their benefits. In addition, they argue that employers who continue to participate in the original plan may also be required to increase the level of their contributions, causing them undue harm as well. They also argue that the use of the records could weaken the position of the trade union in its bargaining with the employer over terms and conditions of the pension plan. One of the affected parties also argues that certain data contained in the records could be used by a rival union to discourage investment managers and funds in which the assets are invested from dealing with the pension plan.

In my view, all of the harms described, above, by the ministry and the affected parties could very well occur, but these events do not arise because of the disclosure of the records. Rather, these harms could result from the practice of one union successfully "raiding" another, as allowed by the Labour Relations Act. As advised by one of the affected parties, in the 2013 raiding period there were approximately 170 displacement applications filed with the Ontario Labour Relations Board. It is evident from the information provided by the parties that the ability of employees to choose their own union as part of this regime of "raiding" is permitted under the Labour Relations Act. In other words, based on the representations provided by the parties, the competitive practice of raiding is something that occurs in the construction trade industry. In my view, trade unions, including the affected parties, are familiar with this highly competitive practice of attempting to raid a rival union and I would imagine that various tactics are used by unions in an attempt to bolster their membership and make themselves more attractive to the members of rival unions.

However, I find that the ministry and the affected parties have not provided sufficiently detailed and convincing evidence that the disclosure of the records at issue could reasonably be expected to cause the harms they describe in their representations. For example, as previously described, the valuation reports filed by unions to FSCO are available under the PBA to those with an interest in the reports. Sections 29 and 30 of the PBA provide for the following individuals to be able to inspect and obtain a copy of a variety of records relating to the pension plans, including the records at issue:

-- member, former member, retired member;

-- spouse of a member, former member or retired member;

-- former spouse of member, former member or retired member in limited circumstances; [page8 ]

-- any other person entitled to pension benefits;

-- a representative of a trade union that represents members of the pension plan;

-- an employer;

-- a person required to make contributions under the pension plan on behalf of an employer;

-- an agent of a person described above who is authorized in writing; and

-- such other persons who may be prescribed.

Notwithstanding the fact that the PBA provides for limited disclosure, the number of individuals who could access the valuation report of their union's pension plan is not insignificant, and it would be possible for these reports to be disseminated within the trade union community, including between rival unions. However, the ministry and the affected parties have not been able to cite one instance where a valuation report that was somehow obtained by a rival union was used to cause the harms contemplated in section 17(1) to another union. I find, therefore, that the ministry's and the affected parties' arguments are speculative and not sufficiently detailed and convincing.

[Emphasis in original]

[26] The commissioner ordered that the actuarial valuation reports and other financial information be disclosed in their entirety.

[27] On May 8, 2015, the commissioner stayed enforcement of the order pending determination of the present applications for judicial review.

Jurisdiction

[28] On an application for judicial review, this court has jurisdiction to grant any relief that the applicants would be entitled to in proceedings by way of mandamus, prohibition or certiorari or proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power (Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)).

Standard of Review

[29] The parties agree that this decision of the commissioner should be reviewed on a standard of reasonableness. It is likewise accepted that the commissioner is owed deference in interpreting and applying its enabling statute (see Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, [2014] S.C.J. No. 36). [page9 ]

[30] Although the applicants framed as questions of procedural fairness certain aspects of the hearing process employed by the commissioner, and submitted correctly that no standard of review analysis is needed for such issues, these arguments were not actively pursued at the hearing of these applications.

[31] The MOF and the FSCO have made additional submissions with respect to whether deference must be given by the IPC to a decision by the MOF of this type. In view of the following decision and reasons, we consider it unnecessary to determine that issue.

Issues

[32] The principal issues raised on this application for judicial review are

(a) did the commissioner apply the appropriate legal test to determine whether disclosure of the actuarial valuation reports and other financial information could reasonably be expected to result in harm to the applicants; and

(b) was the commissioner's decision that the applicants had failed to show that disclosure of this information could reasonably be expected to result in harm to the applicants reasonable?

Analysis and Discussion

[33] Section 17(1) of FIPPA provides:

17(1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in the confidence implicitly or explicitly, where the disclosure could reasonably be expected to,

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or

(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.

[34] Accordingly, the legislation requires that a government institution must be satisfied, before it is able to withhold the [page10 ]release of a document based on the third party exception in s. 17(1), that

(1) the record reveals information that is a trade secret or scientific, technical, commercial, financial or labour relations information;

(2) the information was provided by a third party to a government institution with the understanding (either explicit or implicit) that it would be held in confidence; and

(3) the prospect of disclosure of the record gives rise to a reasonable expectation that one of the harms specified in para. (a), (b) and/or (c) of s. 17(1) will occur.

[35] The commissioner found that the first two parts of this test had been satisfied. However, the commissioner determined that the applicants and MOF had not provided "sufficiently detailed and convincing evidence" to support their position that disclosure of the records could reasonably be expected to cause the harms mentioned in s. 17(1)(a) and (c).

[36] In so doing, the commissioner concluded that the actuarial reports required to be filed with the FSCO under the Pension Benefits Act are available to a "not insignificant" number of individuals with an interest in them. From this, it was extrapolated that it would be possible for these reports to be disseminated within the trade union community, including to rival unions by such individuals.

[37] The commissioner further found that, given what was viewed as "not significant" potential access to and dissemination of the information, the inability of the MOF or the affected parties to cite any actual instance where such an actuarial valuation report had been used to cause the harms contemplated by s. 17(1) demonstrated that the nature of the risk raised by them was speculative only. The commissioner effectively found that, because the harm could not be shown to have happened in the past, the applicants had failed to show a reasonable expectation that there was sufficient risk that it would happen in the future if full access to the information were to be provided to Maloney.

[38] The applicants, MOF and FSCO argue that the commissioner's conclusion and reasons for it are unreasonable. They argue that the commissioner applied not only a too-burdensome standard of proof in assessing whether the disclosure of the records would give rise to a reasonable expectation of harm, but also a too-stringent standard of causation of such harm. [page11 ]

[39] The applicants, MOF and FSCO argue that there must only be shown a "reasonable expectation of probable harm" under s. 17(1) of FIPPA, and that the commissioner's reasoning and decision in this instance imposed a higher burden inconsistent with this legal test.

[40] In response, the commissioner (which took a very active and partisan role on this judicial review of its decision) and Maloney contend that the decision falls within a range of reasonable outcomes. The risk of harm from disclosure of the documents or information must be shown to be well beyond, or considerably above, a mere possibility and that test was not met. The commissioner and Maloney further submit that the stated requirement for "detailed and convincing evidence" is not an attempt to create a higher standard of proof but is only an affirmation of the obvious: that the commissioner needs adequate evidence upon which to draw a conclusion about reasonable prospects of harm.

[41] On a review of reasonableness, this court is charged with evaluating the justification, transparency and intelligibility of the commissioner's reasoning, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9).

[42] In assessing whether a decision is reasonable in light of the outcome and the reasons, courts must show respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. Courts should not substitute their own reasons but may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome (see Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62).

[43] It is therefore evident that the burden on the applicants -- to demonstrate that the decision of the commissioner reflects an error in application of the test to the facts such that the decision falls outside a range of possible, acceptable outcomes and is therefore unreasonable -- is a daunting one. We are not to grant relief on judicial review merely because we might have come to a different conclusion.

[44] In support of their position, the applicants, MOF and FSCO rely on the decision of the Supreme Court of Canada in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, [2012] S.C.J. No. 3. The Supreme Court found the standard for harm for the release of third party information under such statutory freedom of information provisions and in circumstances [page12 ]such as this is "reasonable expectation of probable harm". The commissioner and Maloney do not take issue with this articulation of the test, but submit that the commissioner applied it in this case.

[45] Reasonable expectation of probable harm cannot be merely fanciful, imaginary or contrived. Such fears of harm are not reasonable because they are not based on reason. Conversely, requiring a party to demonstrate that harm is more likely than not to occur sets the legal burden too high. In Merck Frosst, the court stated (at para. 204):

[W]hat is at issue is risk of future harm that depends on how future uncertain events unfold. Thus, requiring a third party (or, in other provisions, the government) to prove that harm is more likely than not to occur would impose in many cases an impossible standard of proof.

[46] The difficulty inherent in this test is that an affected party is required to provide evidence relating to an event that has not yet occurred. The reasons or decision in Merck Frosst provide guidance as to what a party resisting disclosure needs to demonstrate to establish the possibility of future harm (at para. 206):

[T]hat disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm.

[47] As further explained in Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674, [2014] S.C.J. No. 31, this standard of proof is higher than mere possibility, but is lower than balance of probabilities. The applicants, MOF and FSCO submit that it is this standard that should have been applied by the commissioner in this case, but was not.

[48] In Ontario (Community Safety and Correctional Services), a case that examined exemptions under s. 14 of FIPPA also based on a "reasonable expectation" of certain outcomes, the Supreme Court of Canada stated that the required inquiry is "contextual". How much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and inherent probabilities or improbabilities or the seriousness of the allegations or consequences.

[49] The applicants, MOF and FSCO argue that the commissioner's assessment that the evidence tendered by them was not sufficiently "detailed and convincing" and the resulting conclusion that it was therefore speculative and inadequate are contrary to the test articulated by the Supreme Court of Canada in Merck Frosst and Ontario (Community Safety and Correctional Services). [page13 ]

[50] Context here is significant. When the request for the documents was made in 2013, the IBB and the BACU were engaged in a fight over members. The BACU was seeking to displace the IBB's bargaining rights in Ontario. The solvency of the IBB pension plan, including the percentage of contributions being used to repay the IBB's pension debts, was an issue in that campaign. The IBB members seeking to join the BACU had a right of access to the IBB members' pension documents because they were beneficiaries of the IBB's pension plan. The IBB, however, did not have a corresponding independent statutory right of access to the BACU's members' pension documents. Through Maloney, the IBB thus initiated the FIPPA request.

[51] As has been referred to by the MOF and FSCO, the Pension Benefits Act is a remedial statute with a protectionist aim. It is public policy legislation establishing a carefully calibrated legislative and regulatory scheme prescribing minimum standards for all pension plans in Ontario, intended to benefit and protect the interests of members and former members of pension plans (see Gencorp Canada Inc. v. Ontario (Superintendent of Pensions) (1998), 1998 2947 (ON CA), 39 O.R. (3d) 38, [1998] O.J. No. 961, 158 D.L.R. (4th) 497 (C.A.)).

[52] There is no dispute that the information sought to be disclosed is in the nature of confidential financial information, accessible by statute only to certain enumerated persons. This legislated concern for preservation of confidentiality would further suggest that this financial information is not meant to be seen or used by persons not so authorized by statute, albeit subject to FIPPA disclosure.

[53] In addition, procedural safeguards are in place at the FSCO to ensure that whoever is accessing these files is a part of the prescribed group. For instance, when making an appointment with the FSCO to view the records filed, a party must specify who they are, and provide proof of plan membership. If a spouse is requesting access to the plan, he or she must provide evidence of the spousal relationship. Plan members must bring photo identification on the day of his or her appointment to see these records.

[54] Accordingly, the conclusion that there exists a "not insignificant" array of persons to whom this information may be available is overstated. The enumerated statutory exceptions to strict confidentiality of the information filed by pension plans, such as those administered by the applicants, supplemented by procedural safeguards, serve to demonstrate the degree to which this confidentiality is to be observed. Provision of this confidential information to unauthorized third parties by persons entitled to access [page14 ]under the Pension Benefits Act, for purposes at odds with the interests of the beneficiaries may be seen to be contrary to the spirit, if not the letter, of the legislated restrictions.

[55] It must also be remembered that it is the trustees of these plans who are the applicants in this case, not the unions. They are asserting the privacy interests of the beneficiaries of the assets of the plans, and not the interests of the members of the sponsor unions. Some of the beneficiaries of the plans are retired former union members or spouses or dependents of former union members who are reliant on the applicants to maintain the financial integrity and viability of these plans. Those individuals have no interest in and take no part in inter-union rivalry.

[56] By virtue of their role, the trustees of these pension plans have a fiduciary duty to the beneficiaries of the plan and must act prudently and even-handedly among those beneficiaries. It is reasonable to expect that, if a raiding union spreads information (or misinformation) about the pension plan in the context of a raid, the trustees will be required to expend resources to defend the reputation of the plans and to correct any misinformation that is being disseminated. The plans are then at risk of being drawn into a labour dispute in which they would not otherwise be involved, a risky and undesirable development causing unnecessary expense.

[57] It is also evident that the actuarial reports sought to be disclosed contain strategic information used to guide decision-making of the applicants as trustees of these plans. These decisions could affect the terms and conditions of employment of plans' members, as well as the obligations of contributing employers. The reports contain information about the financial health of the pension plans and provide recommendations to the plans' trustees about actions that need to be taken to keep the plans sufficiently funded. Any recommendation to increase employer contributions is a matter that will have to be addressed in collective bargaining. Any recommendation to decrease benefits payable will affect the conditions of work of working beneficiaries. They provide a wealth of financial information that could inform strategy for a union raid.

[58] The disclosure of the records at issue would reveal information that could be used by any competing trade union to justify its pension plan to its own members and persuade them from moving to another union, to create dissent among members of a target union or unions, and to give rival unions a strategic advantage in a raid campaign. If such raid or raids were to be successful, this would necessarily result in a financial loss to the applicants' pension plans and, by extension, to its beneficiaries [page15 ]and contributing employers. In my assessment, these harms are to be reasonably expected in these circumstances.

[59] Providing the actuarial reports to a competing union allows it to compare pension benefits and raise solvency issues in the raiding campaign. It also allows them to raise speculation about how the plans' trustees may respond to any concerns, thus politicizing the issues instead of permitting the plans' trustees to address them prudently and even-handedly as their fiduciary obligations require them to do.

[60] As noted, any use of this information to encourage pension plan members to leave the union may affect the financial state of the plan. The plan is funded by contributions made by employers based on an hourly contribution rate. If the number of working members decreases, there will be less money coming in to fund the plan's obligations. This can become problematic as a greater percentage of plan members reach retirement. In addition, when members leave the one union to join another, they may elect to transfer the commuted value of their pension out of the plan, thus depleting the value of the plans assets used to fund pensions for the remaining beneficiaries.

[61] Any resulting funding deficits are to be resolved by requiring employers to contribute more money to the plan, by reducing benefits or by a combination of both. Any reduction of benefits causes a loss to plan members whose pensions will be reduced. An increase in contribution amounts will cause loss to employers who will have to pay more. Both options will cause significant prejudice to the competitive position of the trade union and its members. The union will not be as able to attract new members if the pension it offers is reduced, or if a significant portion of employer contributions must go toward paying funding deficits rather than providing benefits. In our view, this must qualify as "undue loss" within the meaning of s. 17(1)(c).

[62] Likewise, the amount of employer contributions is negotiated through collective bargaining as part of the total compensation package. Therefore, an increase in employer contributions is liable to result in a decrease in other components of the total compensation package. This likewise would cause undue loss to the wage-earning beneficiaries of the plan.

[63] Although the identity of the person seeking access to information is not generally considered to be a relevant factor in determining whether documents must be disclosed under FIPPA, in this particular case the rival union connection of the requestor and the timing of the request are contextual facts that should assist in considering the extent of the risk that the harms alleged will materialize. [page16 ]

[64] In making the initial decision not to disclose, the MOF attempted to balance the public purpose of right of access to government information and the private interests engaged and affected in this case. As was so succinctly put by Cromwell J. in Merck Frosst, this involves a careful balance between the sometimes competing objectives of encouraging disclosure and protecting third party interests.

[65] In my view, the risk of the harms outlined by the applicants, MOF and FSCO arising out of the provision of the pension documents to the requesting party is more than just speculative when considered in the context of this bitterly competitive union rivalry within the construction industry and the demonstrated aggressive raiding season conflict which occurs every three years.

[66] Given this context, it is unreasonable, and perhaps naïve, to reject the expectation that it is more than possible that efforts would be made by individuals or entities provided with access to the information sought in this case to foment discontent among members of target unions and that the harms pointed to by the applicants, MOF and FSCO would be reasonably expected to occur.

[67] The fact that such harm, were it to occur, would be due to the use or misuse of the information by a raiding union does not serve to insulate the disclosure of the otherwise confidential information from being a necessary link in the chain of causation in this scenario.

[68] Similarly, the fact that it cannot be shown by the applicants, MOF and FSCO that this harm has happened before is of very little assistance in determining the degree of risk in these circumstances.

[69] We therefore agree with the submissions made by the applicants, MOF and FSCO that the standard of proof applied by the commissioner to the facts of this case was too burdensome on them. We also agree that the standard of causation test for harm imposed by the commissioner in this case was too stringent when all facts are viewed in context.

[70] As a result, we conclude that the decision by the commissioner falls outside the range of possible, acceptable outcomes defensible in respect of the facts and law and is therefore unreasonable. As such, it must be set aside.

Conclusion

[71] For these reasons, the applications for judicial review are allowed. The order of the commissioner is hereby set aside, and [page17 ]the issue is sent back to the commissioner for reconsideration and determination in light of these reasons.

Costs

[72] The parties have agreed that there will be no costs awarded to any party on these applications.

SACHS J. (dissenting): --

Introduction

[73] The central question on this application for judicial review is whether the commissioner unreasonably concluded that the disclosure of the actuarial valuations of the pension plans of the unions associated with the applicants could reasonably be expected to result in one of the harms listed in s. 17(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("FIPPA").

[74] The applicants' fear is that, if the requestor, Maloney, receives this information, he will disclose the information to members of the applicants' pension plans (who are entitled to receive this information under the Pension Benefits Act, R.S.O. 1990, c. P.8). This disclosure will lead a large portion of those members to leave the unions associated with the applicants and join Maloney's rival union. This, in turn, would have a harmful effect on the applicants' pension plans and financial well-being.

[75] The commissioner decided that the evidence before her of the risk of this harm was not well beyond or considerably above a mere possibility. The applicants now seek to convince this court, on the basis of the same evidence, that the commissioner acted unreasonably. In doing so, they argue that she made a number of errors, including applying the wrong test for assessing the risk of harm.

[76] I find that these arguments have no merit and find that the conclusion the commissioner reached about the quality of the evidence before her does not take her decision outside the range of possible, acceptable outcomes that are defensible in respect of the facts and the law. Thus, I would dismiss the applications.

The Reasonableness Standard of Review

[77] Where the standard of review is reasonableness, the reviewing court should not substitute its view of the interpretation and application of the statute for the tribunal's reasonably held view. In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, at para. 55, the Supreme Court of Canada explained reasonableness as follows: [page18 ]

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and the reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.

(Citations omitted)

[78] The Supreme Court has also instructed reviewing courts to refrain from engaging in a line-by-line analysis of a tribunal's reasons as part of a "treasure hunt for error": see Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, [2013] S.C.J. No. 34, 2013 SCC 34, at para. 54. The result is to be looked at in the context of the evidence, the parties' submissions and the process: see Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, at para. 18.

[79] On a reasonableness standard, it is not the function of the reviewing court to reweigh the evidence and to substitute its view for that of the administrative decision-maker. Provided the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and the law", the decision is entitled to deference. The reasonableness standard is a standard that accepts that there might be more than one reasonable outcome: see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, at paras. 59-60.

The Applicants' Position

[80] The applicants made the following submissions as to why the commissioner's decision is unreasonable:

(a) The commissioner failed to consider whether the documents at issue contained labour relations information, thereby tainting her analysis of the risk of harm.

(b) The commissioner failed to apply the proper tests for the standard of proof and causation.

(c) The commissioner unreasonably relied on the practice of "raiding" to avoid analyzing the harms under s. 17(1) of FIPPA.

(d) The commissioner unreasonably ignored Maloney's motivation when assessing the risk of harm under s. 17(1). [page19 ]

(e) The commissioner unreasonably ignored the scheme of the Pension Benefits Act when assessing the s. 17(1) harm.

[81] The applicants also argue that the commissioner made findings of fact based on evidence that was not before her and drew conclusions on those facts without putting the parties on notice that these were a consideration. In doing so, she breached her duty of procedural fairness. The parties agree that questions of procedural fairness and natural justice are not subject to a standard of review analysis.

[82] The MOF submits that the commissioner erred when it did not give deference to the MOF's decision to refuse the request for disclosure of the actuarial reports.

Failure to Consider whether the Documents Contain Labour Relations Information

[83] In considering whether the requestor, Maloney, should be provided with access to the pension valuation summaries, the commissioner set out and applied the established three-part test for the third party information exemption:

(1) the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information;

(2) the information must have been supplied to the institution in confidence, either implicitly or explicitly; and

(3) the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in para. (a), (b) and/or (c) of s. 17(1) of FIPPA will occur.

[84] The commissioner found that the first two parts of the test were satisfied, because the information being requested was financial information that had been supplied in confidence. She did not then go on to consider whether the information was also labour relations information. The applicants argue that by not doing so, she failed to appreciate the nature of the information contained in the documents and that this failure coloured her analysis of the risk of harm that could flow from disclosure.

[85] I find no merit to this submission. Having found that the pension valuation summaries contained "financial information", the first part of the test was satisfied. There was no need for the commissioner to then go on to consider whether the pension [page20 ]valuation summaries also contained other types of information, such as labour relations information.

[86] While the applicants assert that the commissioner's failure to consider whether the pension valuation summaries also contained labour relations information coloured her analysis, they do not go on to explain this claim except to allege that the information in the documents could be seized upon by a competing union in a raid. However, it is clear from reading the commissioner's decision that she fully appreciated the nature of the harm being asserted by the applicants -- a harm that they alleged flowed from the labour relations context they were operating in, a context that included raiding.

Failure to Apply the Proper Tests for Standard of Proof and Causation

[87] The applicants submit that the commissioner required them to satisfy a standard of proof that was inconsistent with the jurisprudence. As pointed out by the majority, the test to be applied is that articulated by the Supreme Court of Canada in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, [2012] S.C.J. No. 3, namely, "reasonable expectation of probable harm". This does not require demonstrating on a balance of probabilities that the harm will, in fact, occur. It does require doing more than showing that the harm is merely possible. The harm must be "well beyond the merely possible or speculative . . . " (Merck Frosst, at para. 206).

[88] The applicants argue that the commissioner applied an incorrect standard of proof when she used the words "clear and convincing evidence" and when she relied on the fact that the applicants and the MOF had "not been able to cite one instance where a valuation report that was somehow obtained by a rival union was used to cause the harms contemplated by section 17(1) to another union". According to the applicants, the commissioner effectively found that because the applicants failed to demonstrate that the harms had occurred in the past, they would not happen in the future. In doing so, the commissioner ignored the test in Merck Frosst, a test that specifically acknowledged the impossibility of establishing how future, uncertain events will unfold.

[89] The commissioner addressed the effect of Merck Frosst on the commissioner's requirement that the evidence to support a third party exemption claim be "clear and convincing" in Order PO-3472, at paras. 63-64:

. . . the appellant [requestor] and one of the affected parties [Bricklayers 2] discuss the Supreme Court of Canada's decision in Merck. In Order PO-3116, [page21 ]I considered the relevance of the Merck decision to this office's requirement that the evidence of harm in section 17(1) be "detailed and convincing". In doing so I stated:

In Merck, the Supreme Court of Canada engaged in a thorough examination of the elements of the third party information exemption in the ATIA. It may be that there are aspects of this decision that will inform this office's application of section 17(1). With respect to the particular argument made by the appellant here, I do not find anything in Merck which necessitates a departure from the requirement that a party provide aedetailed and convincing' evidence of harm in order to satisfy its burden of proof. As the Ontario Court of Appeal stated in the WCB decision, the phrase "detailed and convincing" is about the quality of the evidence required to satisfy the onus of establishing a reasonable expectation of harm:

. . . the use of the words "detailed and convincing" do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to describe the quality of evidence required to satisfy the burden of proof in civil cases. If the evidence lacks detail and is unconvincing, it fails to satisfy the onus and the information would have to be disclosed.

Therefore, I find that that there is nothing in the Merck case which necessitates a departure from the requirement that a party provide "detailed and convincing" evidence of harm in order to satisfy its burden of proof under section 17(1) of the Act.

(Citations omitted)

[90] Thus, the words "clear and convincing" are not used to describe a higher standard of proof. Rather, they speak to the quality and cogency of the evidence required to establish a reasonable expectation of harm. In the context of this case, there is nothing unreasonable about this approach.

[91] With respect to the commissioner's consideration of the fact that the applicants and the MOF had not been able to prove that there had been one instance where information of the kind at issue had been used to cause the harms alleged, this does not equate to a requirement that unless a party can prove that it happened in the past, the threshold for an exemption has not been met. In certain cases, it is relevant to consider whether an event has happened in the past. In this case, as the commissioner noted, raiding and displacement applications have been a part of the labour relations context for these unions in the past. It is also true that the information at issue is accessible to a number of people. Thus, it was not inappropriate to note that there was no evidence before her that a union had been successfully displaced by using this kind of information. Noting this does not equate to a need to demonstrate that it has happened in the past. It is just a reference to one type of evidence that can [page22 ]be used to demonstrate that the harm alleged is "well beyond the merely speculative".

[92] The applicants also allege that the commissioner erred in her causation analysis. In particular, after concluding that the harms alleged "could very well occur", the commissioner unreasonably stated that those harms were not caused by the disclosure, but by the practice of one union successfully raiding another. In the submission of the applicants, this ignores the direct link between the disclosure of the documents of a rival union, the use of those documents in a displacement campaign, and the outcome of the raid. Once it is demonstrated that the disclosure of the documents gives rise to a reasonable risk that an otherwise unsuccessful raid would succeed, the necessary causal link is established.

[93] The problem with this argument is that the commissioner found that there was no evidence to support these claims. As such, they were purely speculative. The only evidence that she had before her was that the IBB (i.e., the requestor's union) had never tried to raid the unions associated with the applicants, Local 2 and the BACU. Further, the only evidence in the record of an attempt to use pension information to displace a union was when the BACU tried unsuccessfully to use information about the IBB's pension plan to raid the bargaining rights held by the IBB.

[94] Thus, the commissioner found that she had no detailed and convincing evidence to support the direct connection between releasing documents about their pensions to union members (who could access the information in those documents on their own) and the increased likelihood of success of an otherwise unsuccessful displacement application. Given the evidence before her, it cannot be said that there is no line of analysis that could reasonably lead the commissioner to this conclusion.

Unreasonable Reliance on the Practice of Raiding

[95] According to the applicants, who are the trustees of Local 2's pension plan, the commissioner unreasonably relied on the practice of "raiding" when she concluded that the alleged harms could result from the practice of raiding, rather than from the disclosure of the records. The applicants assert that the commissioner never resolved the question of whether the "tactic" of using confidential information in a raid could reasonably be expected to significantly prejudice the competitive position of a rival union.

[96] This argument is essentially a restatement of the argument on causation dealt with above. As noted, the commissioner [page23 ]reasonably decided that the evidence before her did not meet the threshold required under FIPPA to establish that the disclosure of the pension valuation information could reasonably be expected to prejudice the competitive position of a rival union. While it is entirely possible that a union's pension plan could be adversely affected by a successful raid and displacement application, the suggestion that disclosing the documents in issue to a rival union would increase the chances of a successful raid did not extend well beyond the realm of mere speculation or possibility.

The Requestor's Motivation

[97] The applicants submit that the commissioner ought to have considered the reasons for the request when she was assessing the reasonable expectation of probable harm. According to the applicants, in the absence of a denial that the requester intended to cause the harm described by the applicants, the commissioner ought to have concluded that there was a reasonable expectation that such harm would be caused.

[98] Under FIPPA, there is a right to access the information, unless it can be shown that an exemption applies. As the legislative history makes clear, FIPPA does not impose a "needs" test that a requestor must meet. This is evident from the final report of the Commission on Freedom of Information and Individual Privacy: Public Government for Private People -- The Report of the Ontario Commission on Freedom of Information and Individual Privacy 1980, Vol. 2 (Toronto: Queen's Printer, 1980), at p. 233:

We think it unwise to restrict access to persons who can demonstrate a need for the information in question . . . To require individuals to demonstrate a need for information would erect a barrier to access resulting in unproductive disputes over the nature and value of a particular individual's interest in obtaining access to government information.

[99] In keeping with this principle, the commissioner has not required that a requestor justify or provide reasons for his or her request: see Order M-96, upheld on judicial review in O.S.S.T.F., District 39 v. Wellington (County) Board of Education (February 6, 1995), Toronto, Doc. 407/93 (Ont. Div. Ct.), leave to appeal refused October 16, 1995, Doc. M15357 (C.A.).

[100] The only limitation on this principle is that access may be refused if the request is found to be frivolous or vexatious. No suggestion of this kind is being made here.

[101] Consistent with this principle, the commissioner does not, except in unusual circumstances, consider the identity of a requestor since his or her identity is irrelevant. Rather, the commissioner presumes that disclosure to any requestor in response to a request for government records is "disclosure to the world". [page24 ]This flows from the fact that there are no restrictions on what a requestor can do with the information once it is disclosed. Thus, even if the requestor had no affiliation with another union, the commissioner would still assess the harms that may flow from disclosure by considering the possibility that the pension valuation summaries could be used by a rival union to successfully raid the unions associated with the applicants' pension plans.

[102] While the applicants assert that the failure of the requestor to provide a reason for his request leads to an inference that the information will be used to carry out the harms they suggest, the evidence before the commissioner was to the contrary. As already noted, the evidence was that the requestor's union had never attempted to raid any of the unions associated with the applicants. The commissioner also received evidence that the requestor's union's pension plan had a sizeable funding deficit, a fact used by the union associated with the BACU in its attempt to raid the requestor's union.

[103] This evidence could equally suggest that the requestor may have been requesting the information, not to raid the unions associated with the applicants, but to defend his own union from a possible raid. By obtaining the information at issue, the requestor may be able to verify whether claims made by the unions associated with the applicants about their pension plans are truthful.

The Scheme of the Pension Benefits Act

[104] The applicants argue that the commissioner unreasonably failed to consider if the Pension Benefits Act determines whether the disclosure of the pension valuation summaries could reasonably be expected to cause the s. 17(1) harms. Under that Act, the legislature has seen fit to restrict access to the records sought. According to the applicants, had the legislature wished to afford broad access to these records, it would have said so or not put in place such a strict scheme for access.

[105] There are several problems with this submission. First, s. 67(1) of FIPPA explicitly states that "[t]his Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise". Neither subsection (2) nor the Pension Benefits Act provide otherwise.

[106] Second, while the Pension Benefits Act gives certain classes of people a statutory right to information about certain pension plans, it does not prohibit other people from receiving the information, nor does it speak to any harms that may flow from the disclosure of pension valuation summaries. [page25 ]

[107] In short, the absence of a specific right of access to the requestor under the Pension Benefits Act does not trump his right of access under FIPPA.

The Applicants' Procedural Fairness Arguments

[108] The applicants allege that the commissioner breached her duty of procedural fairness by not making it clear that she was looking for examples where one union had used information about a rival union's pension plan valuation to successfully raid that union. The applicants also allege that she breached this duty by not giving them the opportunity to make submissions on any inferences she might draw from the failure to provide such examples.

[109] In this case, the commissioner explicitly asked the applicants to explain how the disclosure of the pension valuation summaries satisfied the harm requirements under s. 17(1) of FIPPA. She also cautioned them that to satisfy this part of the third party exemption test they should provide "detailed and convincing evidence". In other words, evidence amounting to speculation of possible harm would not be sufficient.

[110] In response, the applicants made their submissions that the harm requirements in s. 17(1) were satisfied because rival unions could use the pension valuation summaries to successfully raid the unions associated with the applicants' pension plans.

[111] The requestor then made his representations in which he pointed out that the applicants had failed to provide a single example of where a union had successfully used information about a rival union's pension plan to successfully raid that rival union. These representations were forwarded to the applicants for reply. In reply, no further evidence was provided by the applicants to support their theory.

[112] Given this process, it cannot be said that the commissioner breached her duty of procedural fairness by concluding that the applicants did not provide any detailed and convincing evidence to support what she found to be their speculative concerns of harm.

Deference to the MOF

[113] The MOF's main submission on this application is that the commissioner should have deferred to the ministry's decision to deny access to the pension valuation summaries.

[114] This argument was raised for the first time on the judicial review application. The MOF did not raise the issue before the commissioner. [page26 ]

[115] Generally, courts should exercise their discretion not to consider issues raised for the first time on judicial review where the issues could have been raised, but were not: see Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, at paras. 22-23. Two of the reasons for doing so are: (1) to show respect for the legislative decision to confer first line responsibility on the administrative decision-maker, and (2) to allow the court to benefit from a decision of the specialized decision-maker.

[116] In this case, the issue raised relates to the commissioner's specialized function and expertise, which is to interpret and apply FIPPA. Two provisions of FIPPA appear to be inconsistent with the MOF's position -- s. 1(a)(iii), which stipulates that "decisions on the disclosure of government information should be reviewed independently of government"; and s. 53, which provides that "[w]here a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head".

[117] If the MOF had raised the argument about deference during the commissioner's process, this court would have the benefit of the commissioner's expert reasons as to how this argument fits within the legislative scheme of FIPPA. To decide the issue without the benefit of those reasons would undermine the legislative decision to confer first line responsibility for the application of the FIPPA regime on the commissioner.

Conclusion

[118] For these reasons, I would dismiss the applications.

Applications allowed.

End of Document