CITATION: Criminal Lawyers’ Association v. Ministry of Community Safety and Correctional Services, 2016 ONSC 6948
COURT FILE NO.: 504/14
DATE: 20161115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Then, Sachs and Warkentin JJ.
B E T W E E N:
CRIMINAL LAWYERS’ ASSOCIATION
Applicant
- and -
MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and THE INFORMATION AND PRIVACY COMMISSIONER
Respondents
Jessica Orkin and Natai Shelsen, for the Applicant
Sara Blake and Sandra Nishikawa, for the Respondent Ministry of Community Safety and Correctional Services; and
Lawren Murray, for the Respondent Information and Privacy Commissioner of Ontario
HEARD AT TORONTO: May 11, 2016
Warkentin J.
REASONS ON APPLICATION FOR JUDICIAL REVIEW
[1] This is an application for judicial review by the Criminal Lawyers’ Association (“CLA”) of decisions of the Information and Privacy Commissioner (“IPC” or “Commissioner”) under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA” or the “Act”). In the decisions under review, (Acting) Commissioner Beamish concluded that the Ministry of Community Safety and Correctional Services (the “Ministry”) had, on three successive occasions, improperly exercised its discretion in deciding to withhold certain parts of a record to which the CLA requested access (the “IPC Decisions”).
[2] The record at issue is a 318 page report (the “Report”) prepared by the Ontario Provincial Police (the “OPP”) in 1998. Of the entire Report, 271 pages consist of interviews conducted by the OPP with 11 individual witnesses who are police officers or Assistant Crown Attorneys.
[3] In spite of the IPC finding that the Ministry had demonstrated a repeated refusal to follow the guidance it provided, the Commissioner closed the CLA’s appeal file on the basis that he had no other recourse to address the Ministry’s improper exercise of discretion.
[4] The relevant sections of the Act at issue in this matter are sections 10, 14, 19, 20, 21, and 23. These sections are set out in Appendix A of these Reasons.
[5] The Applicant seeks to have this Court:
a) Quash the decision in Final Order PO-3402-F, by which the Commissioner closed the Applicant’s appeal file;
b) Quash the decision in Interim Order PO-3231-I, by which the Commissioner concluded that he was functus officio in respect of the applicability of the s. 14(2)(a) exemption to the OPP Report. Section 14(2)(a) permits a Minister to refuse to disclose a report that is “prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;….”
c) Order that the Ministry provide the CLA with access to the withheld portions of the OPP Report that remain at issue that do not qualify for exemption under s. 14(2)(a); or, in the alternative, remit the matter back to the Commissioner to determine, in accordance with the Court’s directions, whether the portions of the OPP Report that remain at issue qualify for exemption under s. 14(2)(a);
d) Declare that the Ministry disregarded the proper direction of the Commissioner with respect to the exercise of its discretion to claim the s. 14(2)(a) exemption in respect of the OPP Report; and
e) In the event that any withheld portions of the OPP Report that remain at issue might qualify for exemption under s. 14(2)(a), remit this aspect of the matter back to the Ministry, for the Ministry to exercise its discretion in accordance with the directions of the Court and the directions of the Commissioner as set out in Order PO-3231-I, Order PO-3322-I, and Final Order PO-3402-F.
[6] The Applicant submits that the following issues arise in this application:
a) The Commissioner breached the rules of procedural fairness in the process leading to his conclusion that he was functus officio regarding the question of whether the s. 14 exemption applied to all portions of the Report.
b) The Commissioner erred in law in concluding that he was functus officio to consider whether the s. 14(2)(a) exemption applied to all portions of the Report.
c) The s. 14(2)(a) exemption is inapplicable to at least some of the remaining withheld portions of the OPP Report.
d) The Commissioner erred in law when he decided to close the appeal files, despite his finding that the Ministry had again improperly exercised its discretion.
Background
[7] In 1998, the CLA made an information request under the Act for access to the Report.
[8] The Report detailed an investigation of police conduct that was triggered by a judgment of Justice Glithero in 1997 in which he stayed a murder prosecution after identifying 17 instances of “deliberate non-disclosure or suppression, of virtually every piece of evidence that was of probable assistance to the defence.”[^1]
[9] Upon completion of its investigation into the police conduct in 1998, the OPP issued a brief press release in which they stated that they had found no instances of improper police conduct. This outcome prompted the CLA to seek a copy of the Report and copies of two memoranda that were related to the investigation. To that end, the CLA submitted a FIPPA request to the Minister. That request was refused under ss. 14, 19, 20, and 21 of the Act. (Set out in Appendix A)
[10] The CLA appealed to the IPC on a constitutional challenge, arguing that s. 23 of the Act (the public interest override) violated s. 2(b) of the Charter, as a result of the failure to include a public interest review for records subject to the solicitor-client or law enforcement exemptions.
[11] In May 2000, Assistant Commissioner Mitchinson dismissed the CLA’s appeal. The Assistant Commissioner found that the s. 21 personal privacy exemption applied to the records, but held (under s. 23) that the public interest in disclosure of the records clearly outweighed the purpose of the s. 21 exemption. Notwithstanding this finding, he determined that the Report also qualified for exemption under s. 14(2)(a), and the two memoranda were found to qualify for exemption under s. 19 of the Act (the Solicitor/Client exemption) the Ministry’s decision was upheld. The Assistant Commissioner considered and dismissed the CLA’s constitutional challenge to s. 23.
[12] On judicial review, the Divisional Court upheld Assistant Commissioner Mitchinson’s decision.[^2] On appeal to the Court of Appeal, the decision was reversed on the basis that s. 23 was unconstitutional.[^3]
[13] The Ministry appealed to the Supreme Court of Canada. In that proceeding, there were a number of interveners including the Information Commissioner of Canada (the “ICC”). The ICC did not respond to the constitutional questions; however, it submitted the following:
“If a given exercise of discretion is unreasonable, if the relevant factors have been misconstrued or overlooked, or if a Charter violation is thereby created, the IPC and the courts are empowered to order that the discretion be exercised anew upon proper principles and having regard to the relevant factors…. In the case at bar, the Ministry’s exercise of discretion in claiming the ss 14 and 19 exemptions has not been scrutinized at any stage below, despite well-established IPC and administrative law precedents on this point. The ICC respectfully submits that the Ministry’s exercise of discretion in this case is unreasonable, fails to consider relevant factors including the public interest disclosure, and violates the Charter. …In the circumstances, it is appropriate to remit the matter to the Ministry, for the discretion to be exercised anew.”[^4]
[14] In its decision of June 17, 2010, the Supreme Court of Canada set aside the Court of Appeal’s decision and found that s. 23 of the Act did not violate s. 2(b) of the Charter. The Court also held that the s. 19 exemption had been properly applied to the two memoranda and therefore they were exempt from disclosure.[^5]
[15] With respect to the Report, however, the Court, in essence, agreed with the submissions of the ICC and found that the IPC had not properly reviewed the Ministry’s decision in claiming the s. 14(2)(a) exemption.[^6] The Court held that it was open to the Commissioner to review the Minister’s exercise of discretion under sections 14 and 19 of the Act (at para. 72).
[16] The Court ordered “that the claim under s. 14 of the Act be returned to the Commissioner for reconsideration in light of these reasons.”[^7]
[17] The matter was returned to the IPC and, in May 2011, the Commissioner sent a Notice of Inquiry (NOI) to the Ministry asking it to re-exercise its discretion under s. 14(2)(a) of the Act and determine which parts of the Report should be released to the CLA. The Commissioner informed the CLA that he was first seeking submissions from the Ministry and was not seeking submissions from the CLA at that time.
[18] In July 2011, the Ministry, after reconsideration, determined it would release parts of the Report to the CLA. In December 2011, the Ministry provided a redacted copy of the Report to the CLA. The redacted information was with respect to those individuals who had provided statements and other personal information and who did not consent to the release of that information. In refusing to release these parts of the Report, the Ministry claimed the exemption under ss. 14(2)(a), 21(1), 21(2)(f), and 21(3)(b), indicating it had made redactions in accordance with the wishes of the individuals to whose information those redactions applied.
[19] In August 2012, the Commissioner sent an NOI to the CLA, inviting submissions on the Ministry’s decision to release most, but not all of the Report to the CLA in December 2011. In its response to the NOI, the CLA argued that the Ministry had improperly exercised its s. 14 discretion by permitting the views of the individual witnesses to drive the Ministry’s exercise of discretion and by failing to take into account the professional basis for the involvement of the individuals in the investigation.
[20] The CLA also submitted that the IPC’s inquiry ought to include additional issues than those raised in its Notice. In particular, the CLA argued that the IPC had no jurisdiction to consider the Ministry’s claim that the s. 21 exemption and the s. 23 override had been dispositively addressed in Order PO-1779 and were not part of the subject-matter remitted for reconsideration by the Supreme Court. The CLA also argued that the Ministry had applied incorrect legal principles to the s. 14(2)(a) exemption and asked the IPC to review each portion of the Report to confirm their qualification as a “report” under s. 14(2)(a).
[21] The Ministry disagreed with all of the CLA’s submissions in its reply. Notwithstanding having requested an opportunity to respond further, the CLA was not provided an opportunity to consider the Ministry’s reply prior to the IPC rendering its decision.
[22] The IPC rendered its decision in Interim Order PO-3231-I (the “First Interim Order”). The Commissioner concluded, that the Ministry’s exercise of its s. 14(2)(a) discretion had been improperly exercised because it was based, in part, on irrelevant considerations and it failed to consider relevant factors. In reaching his conclusions, the Commissioner found that the Ministry had failed to consider the nature of the relationship between the interviewees and the government, and stated:
In my view, the Ministry has failed to consider the unique circumstances posed by this investigation. There is no basis to find that disclosure of information relating to interviews with individuals who are/were members of the public service, in their capacity as Crown attorneys, police officers or court officials could have the same “chilling effect” on public cooperation with future law enforcement investigations that would result from the disclosure of information received from the general public. The Ministry has offered no evidence that would support a finding that interviews with public servants relating to performing their professional duties will negatively impact the general public’s cooperation in future law enforcement investigations….
[23] The Commissioner commented that the Ministry’s exercise of discretion “appears to have been dictated by the interviewees’ positions regarding the disclosure of their information, rather than a reasoned consideration of all appropriate factors.” He ordered the Ministry to re-exercise its discretion in accordance with the analysis set out in his order, and to supply the CLA and the IPC with an explanation of the basis for exercising its discretion for each part of the Report.
[24] In response to that Order, the Ministry released an additional 17 pages or portions of pages of the Report, but otherwise maintained its prior position regarding its previous redactions. The rationale provided by the Ministry was set out in its “Second Revised Ministry Decision”, dated October 25, 2013. The Ministry stated that the redacted or withheld information fell within five categories of information:
i. Personal information to which former Assistant Commissioner Mitchinson found the public interest override did not apply in PO-1779 and to which the individual has not consented to disclosure;
ii. Information to which the publication ban [issued by Justice Glithero] applies;
iii. Information which may identify police informants;
iv. Statements or summaries of statements of witnesses who objected to the disclosure of any of their information; and
v. Statements or summaries of statements of witnesses who did not respond to the Ministry’s consultation letter.
[25] The Ministry stated that it “took into account the potential chilling effect the non-consensual disclosure of statements given as part of a criminal investigation could have on the public’s willingness to cooperate with the OPP in future investigations” and continued to withhold the portions of the Report containing the personal information of those individuals who had not provided express consent to its disclosure.
[26] The CLA informed the IPC that it wished to continue the reconsideration process and Commissioner Beamish proceeded to issue Interim Order PO-3322-1 (the “Second Interim Order”) on March 19, 2014, without soliciting additional submissions from the CLA.
[27] In his “Second Interim Order”, Commissioner Beamish upheld the Ministry’s exercise of discretion in three areas, namely with respect to (a) personal information to which the public interest override was found not to apply in Order PO-1779; (b) information to which a publication ban issued by Justice Glithero applied; and (c) information which may identify police informants.
[28] The Commissioner concluded, however, that with respect to the remainder of the withheld or redacted pages, the Ministry had continued to exercise its discretion improperly in withholding those portions of the Report that contained information from interviews where the witnesses had not consented to disclosure. He described those witnesses as members of the public service, in their capacity as Crown attorneys, police officers, and court officials and concluded:
There is no rational basis to find that disclosure of information relating to interviews with individuals who are/were members of the public service, in their capacity as Crown attorneys, police officers or court officials could have the same “chilling effect” on public cooperation with future law enforcement investigations that would result from the disclosure of information received from the general public.
[29] Commissioner Beamish determined that it was the consent of the interviewees that was the determinative — if not the only — factor in deciding whether to release the information. The Commissioner found that “the Ministry’s exercise of discretion was performed through the prism of the personal privacy exemption found at section 21 of the Act and not the law enforcement exemption as directed in my previous reconsideration order.”
[30] Commissioner Beamish again ordered the Ministry to re-exercise its discretion and provided the following direction:
I wish to guide the Ministry in its task. To be clear, any exercise of discretion in which the Ministry continues to withhold all parts of the six interviews (including the very fact that interviews were conducted with these individuals) where the interviewee either did not respond or objected to the disclosure of their interviews is improper and will not be upheld by this office. In such situations, the Ministry is not exercising its discretion. Instead, the Ministry is improperly delegating its discretion to third parties who may have a vested personal interest in withholding the information. The discretion is the Ministry’s to exercise, not the interviewees’.
[31] On May 26, 2014, the Ministry issued a “Third Revised Ministry Decision”, in which it disclosed additional portions of the report after obtaining the consent of two other witnesses but continued to withhold the portions corresponding to the statements of the three remaining individuals who had not provided their consent. There were 81 pages of the Report that continued to be withheld in their entirety: pages 18–20, 23, 42–44, 121–161, and 286–318.
[32] In providing its response to the Commissioner in that third revised decision letter, the Ministry stated:
[T]he fact that the individuals who were being interviewed as part of the criminal investigation were police officers and Assistant Crown Attorneys is irrelevant. They were, like a member of the public would be in any other criminal investigation, the subject of an investigation into potential breaches of the Criminal Code. To say that the disclosure of their statements, provided in that context, could not have the same chilling effect on future cooperation with future law enforcement investigations, as the disclosure of a statement made by a member of the public is ignoring the fact that they were in the very same position as any member of the public is when they are being interviewed in relation to alleged criminal behaviour….
Ensuring that individuals, including police officers and assistant Crown Attorneys who can also be the subject of such an investigation, continue to cooperate with police, they need to have confidence that the police will not voluntarily disclose the information outside the context in which it was provided, or to at least not do so without seeking their consent. It is in this context that the Ministry believes the opinions of the individuals who provided the statements are relevant, in this case, to the exercise of discretion pursuant to section 14 of the Act.
[33] The IPC then proceeded to render Final Order PO-3402-F (the “Final Order”). In this Final Order, Commissioner Beamish noted that the Ministry continued to dispute his finding, made in both interim orders, that disclosure of information obtained from members of the public service could not be expected to have the same “chilling effect” on public cooperation with future law enforcement investigations as would disclosure of information received from the general public. He concluded that the Ministry’s most recent treatment of this issue “contains a reiteration of its objections to re-exercising its discretion, rather than reflecting an actual re-exercise of discretion in respect of this factor.”
[34] The Commissioner also noted that in his two interim orders, he had “expressly disapproved of the manner in which the Ministry appeared to have fettered its discretion based on the interviewees’ positions on disclosure of their information.” He stated that he had held that, “by treating the consent of the interviewees as the determinative, if not the only, factor in deciding whether to disclose the information, the Ministry had failed to exercise its discretion” and concluded that there was “no evidence in the Ministry’s most recent decision that it treated the factor of consent any differently than it did in its two previous decision, which manner I found to be improper in my orders addressing these decisions.”
[35] Notwithstanding that the Commissioner concluded that the Ministry had improperly exercised its discretion, he closed the CLA’s appeal file and made the following comments:
In the circumstances, and given the absence of an adequate alternative remedy, I find there is no purpose in ordering yet another re-exercise of discretion. In the course of the original processing of this appeal and this reconsideration process, the Ministry has disclosed most of the report at issue, including portions relating to interviews with all but three individuals. Through the two interim orders and this final order issued on reconsideration of this appeal, this office has provided some guidance to institutions on the proper exercise of discretion. The Ministry’s revised decisions in response to these orders demonstrate a repeated refusal to heed this guidance. As a result, while I do not uphold the ministry’s exercise of discretion reflected in its May 26, 2014 revised decision, I find it would serve no useful purpose to return this matter to the Ministry for a further re-exercise of discretion based on principles the ministry has chosen to disregard. As I have no other recourse to address the Ministry’s improper exercise of discretion, I will close these appeal files without making further orders to the Ministry [emphasis added].
[36] This second application for judicial review was commenced shortly thereafter by the CLA.
Issues and the Law
[37] Most of the Report has now been disclosed. The parts that remain at issue are 66 pages that contain interview notes and summaries of information obtained from three witnesses who did not respond or objected to disclosure. The Ministry has withheld these pages under the s. 14(2)(a) exemption, which protects law enforcement investigations, on the basis that disclosing such information without the consent of interviewees would compromise future investigations.
[38] Section 14(2)(a) of the Act states:
A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;….
[39] The Ministry has claimed that s. 14(2)(a) applies to all portions of the Report; however, it exercised its discretion under the Act to release the 218 pages already released to the CLA.
[40] The CLA seeks access to the pages of the Report that the Ministry withheld on the basis that the witnesses did not provide their consent for disclosure of their statements or summaries of their statements. These pages are identified in Appendix B.
[41] While the Commissioner opposed this application for judicial review, counsel on behalf of the Commissioner was supportive of this Court declaring that the Ministry disregarded the proper direction of the Commissioner with respect to the exercise of its discretion to claim the s. 14(2)(a) exemption in respect of the OPP Report, and supportive of this Court making an order to remit the matter back to the Ministry and for the Ministry to exercise its discretion in accordance with the directions of the Court and the directions of the Commissioner as set out in Order PO-3231-I, Order PO-3322-I, and Final Order PO-3402-F.
[42] The Ministry opposes the Application in its entirety, claiming that it has exercised its discretion and that no further relief can or should be ordered. Its position is as follows:
a) The CLA is attempting to re-litigate the issue of whether the Report is exempt from disclosure under s. 14(2)(a), when that issue was finally decided by the IPC in 2000 and was or could have been argued by the CLA in their previous judicial review application. The doctrine of res judicata (cause of action estoppel) precludes re-litigation.
b) The only issue before the IPC, and therefore the only issue before this Court on judicial review, is the explanation of the Minister for exercising discretion to withhold the undisclosed portions of the Report. That was the only issue referred back to the IPC by the Supreme Court of Canada in their 2010 decision on the CLA’s prior application for judicial review.
c) The IPC’s decision to close its file was reasonable. The Act does not grant the IPC any remedial authority to overrule a Minister’s exercise of discretion. The Supreme Court was aware of the limits of the IPC’s authority when it referred the matter back. The Court’s purpose was to obtain an explanation of the Minister’s exercise of discretion. That purpose has been served.
d) The CLA has no legal right to disclosure of the Report, therefore it is not entitled to the remedies of mandamus, certiorari, or a declaration.
e) Through the process before the IPC, the Minister has provided substantial disclosure of the Report, along with thorough reasons for withholding the remaining pages that are at issue. The purposes of the Act, and the concerns raised by the Supreme Court as to the absence of reasons for the Minister’s exercise of discretion, have thus been served through the process before the IPC.
Supreme Court of Canada Decision
[43] In its decision in 2010, the Supreme Court of Canada remitted this matter back to the IPC for reconsideration to determine whether any or all of the Report should be disclosed. The Court did so because it was not clear if the “Assistant Commissioner, in applying the Act, fully considered the scope of his discretion under s. 14, the law enforcement provision” (at para. 7).
[44] The Court determined that the Ministry had failed to explain how or why it applied the exemptions to the Report and had not addressed the possibility of partial disclosure (at para. 13).
[45] The Court described the roles of the Commissioner and the Ministry under s. 14 of the Act and found that the Commissioner had failed to conduct an appropriate review of the Ministry’s decision. At paragraphs 66 to 74 of its decision, the Court set out as follows (emphasis in original):
(b) The Duty of the “Head” (or Minister)
[66] As discussed above, the “head” making a decision under ss. 14 and 19 of the Act has a discretion whether to order disclosure or not. This discretion is to be exercised with respect to the purpose of the exemption at issue and all other relevant interests and considerations, on the basis of the facts and circumstances of the particular case. The decision involves two steps. First, the head must determine whether the exemption applies. If it does, the head must go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosure should be made.
[67] The head must consider individual parts of the record, and disclose as much of the information as possible. Section 10(2) provides that where an exemption is claimed, “the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions”.
(c) The Duty of the Reviewing Commissioner
[68] The Commissioner’s review, like the head’s exercise of discretion, involves two steps. First, the Commissioner determines whether the exemption was properly claimed. If so, the Commissioner determines whether the head’s exercise of discretion was reasonable.
[69] In IPC Order P-58/May 16, 1989, Information and Privacy Commissioner Linden explained the scope of his authority in reviewing this exercise of discretion:
In my view, the head’s exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of law. It is my responsibility as Commissioner to ensure that the head has exercised the discretion he/she has under the Act. While it may be that I do not have the authority to substitute my discretion for that of the head, I can and, in the appropriate circumstances, I will order a head to reconsider the exercise of his/her discretion if I feel it has not been done properly. I believe that it is our responsibility as the reviewing agency and mine as the administrative decision-maker to ensure that the concepts of fairness and natural justice are followed. [Emphasis added; p. 11.]
[70] Decisions of the Assistant Commissioner regarding the interpretation and application of the FIPPA are generally subject to review on a standard of reasonableness (see Ontario (Minister of Finance) v. Higgins (1999), 1999 1104 (ON CA), 118 O.A.C. 108, at para. 3, leave to appeal refused, [2000] 1 S.C.R. xvi; Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 1999 19925 (ON CA), 46 O.R. (3d) 395 (C.A.), at paras. 15-18; Ontario (Attorney General) v. Ontario (Freedom of Information and Protection of Privacy Act Adjudicator) (2002), 2002 30891 (ON CA), 22 C.P.R. (4th) 447 (Ont. C.A.), at para. 3).
[71] The Commissioner may quash the decision not to disclose and return the matter for reconsideration where: the decision was made in bad faith or for an improper purpose; the decision took into account irrelevant considerations; or, the decision failed to take into account relevant considerations (see IPC Order PO‑2369‑F/February 22, 2005, at p. 17).
[72] In the case before us, the Commissioner concluded that since s. 23 was inapplicable to ss. 14 and 19, he was bound to uphold the Minister’s decision under those sections. Had he interpreted ss. 14 and 19 as set out earlier in these reasons, he would have recognized that the Minister had a residual discretion under ss. 14 and 19 to consider all relevant matters and that it was open to him, as Commissioner, to review the Minister’s exercise of his discretion.
[73] The Commissioner’s interpretation of the statutory scheme led him not to review the Minister’s exercise of discretion under s. 14, in accordance with the review principles discussed above.
[74] Without pronouncing on the propriety of the Minister’s decision, we would remit the s. 14 claim under the law enforcement exemption to the Commissioner for reconsideration. The absence of reasons and the failure of the Minister to order disclosure of any part of the voluminous documents sought at the very least raise concerns that should have been investigated by the Commissioner. We are satisfied that had the Commissioner conducted an appropriate review of the Minister’s decision, he might well have reached a different conclusion as to whether the Minister’s discretion under s. 14 was properly exercised.
[46] The Court ordered that the claim under s. 14 of the Act be returned to the Commissioner for reconsideration.
The Commissioner erred in law in concluding that he was functus officio to consider whether the section 14(2)(a) exemption applied to any or all portions of the Report
[47] The CLA submitted that the Commissioner erred in law when he concluded he was functus officio to consider whether the entire Report qualified as a “report” under s. 14(2)(a). The standard of review applicable on this issue is correctness.[^8]
[48] The Commissioner’s jurisdiction to undertake the reconsideration that gave rise to the present application is the result of the 2010 order of the Supreme Court of Canada remitting the matter back to the IPC. The interpretation of the scope of a Court’s remission order to a tribunal is a matter of law, and no deference is owed by a reviewing Court to the tribunal’s view on this issue.[^9]
[49] The reviewing Court’s directions, and hence the scope of the tribunal’s jurisdiction on reconsideration, “must be interpreted in light of the totality of their content and the context in which they were given”, including the relevant findings of the tribunal in its original decision, what the reviewing court found to be in error in the tribunal’s original decision, and what the reviewing court concluded and directed the tribunal to do.[^10]
[50] It was the position of the IPC and the Ministry that, because the CLA did not challenge the original decision of the IPC with respect to s. 14(2)(a) of the Act when it pursued the first judicial review that proceeded to the Supreme Court of Canada, it is now inappropriate for the CLA to attempt to re-litigate this issue.
[51] The Ministry argued that the doctrine of res judicata (cause of action estoppel) precludes litigation by installments. A party must bring forward their whole case in the first proceeding. The doctrine precludes re-litigation of issues that the parties raised or could have raised in the prior proceeding. The test is as follows:
i. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of "finality"];
ii. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of "mutuality"];
iii. The cause of action in the prior action must not be separate and distinct; and
iv. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.[^11]
[52] In its previous notice of application for judicial review, the CLA alleged that the IPC erred in applying s. 14(2)(a) to exempt the Report from disclosure. The IPC’s ruling that the Report was exempt under s. 14(2)(a) was the premise to the CLA’s constitutional argument. It is the position of the Ministry that having made the strategic choice to pursue only the constitutional argument, the CLA is not now entitled to revive its argument that the Report is not exempt under s. 14(2)(a).
[53] The Ministry also argued that the Supreme Court remitted back to the IPC only the Minister’s exercise of discretion and, as such, the Supreme Court’s order was premised on the Report falling under the exemption. It was the Ministry’s position that the issue of the application of s. 14(2)(a) to the Report was thus determined by the Supreme Court in the previous proceeding and is therefore now res judicata, which bars any further adjudication of this issue.
[54] Finally, the Ministry argued that the IPC’s Notice of Inquiry limited the issues to be adjudicated to the Minister’s exercise of discretion. The Ministry did not raise a “new issue” as alleged by the CLA. The Ministry simply replied to CLA’s attempt to re-open the question by pointing out that it had been finally determined. Given the doctrine of res judicata, the IPC had no obligation to request further submissions from the CLA on this issue. The Ministry argued that it was for these reasons that the issue of whether the Report falls under the exemption provided in s. 14(2)(a) of the Act was not before the IPC and is not properly before this Court on judicial review.
[55] For the reasons that follow, we reject the position of the Ministry and the IPC on this point.
[56] In the first judicial review, the CLA challenged the constitutionality of s. 23, the “public interest override” section of the Act, arguing that it constituted a breach of the CLA’s freedom of expression under s. 2(b) of the Charter. The Supreme Court upheld s. 23 of the Act, and then directed the parties on the application and discretionary nature of s. 14.
[57] When the matter was remitted back to the IPC by the Supreme Court it was with respect to the “s.14 claim under the law enforcement exemption”. There was no restriction as to what aspect of that claim was to be reconsidered.,
[58] We disagree with the position of the IPC and the Ministry that the CLA is estopped from raising an issue in this judicial review that was not raised in the prior judicial review. The Supreme Court considered and rejected the CLA’s claim regarding the constitutionality of s. 23 of the Act. It had before it arguments by all parties including interveners. After considering the arguments, the Court determined that, notwithstanding that it had rejected the CLA’s application, an error had occurred with respect to the manner in which the IPC had interpreted s. 14 of the Act and remitted the entire scope of the s. 14 review back to the IPC.
[59] The Supreme Court remitted to the IPC for reconsideration all aspects of the Ministry’s s. 14 claim, including the applicability of the s. 14(2)(a) exemption to the Report as well as the propriety of the Ministry’s exercise of discretion. This is clearly set out in paragraphs 7, 13, and 66 to 74 of the Supreme Court’s decision, as set out above. The Court could not have made a determination that the entire document constituted a “report” under s. 14 of the Act when it expressed its view that the Ministry had failed to explain how or why it applied the exemptions to the Report and had not addressed the possibility of partial disclosure (at paras. 7, 13).
[60] Similarly, the CLA was not in a position to argue whether or not the entire document constituted a “report” because they had seen none of the Report at that point and were not in a position to analyze what the Ministry claimed had qualified as a “report” within s. 14.
[61] In these circumstances, the scope of the IPC’s reconsideration jurisdiction must be determined by reference to the Supreme Court’s order, not by reference to what was adjudicated prior to or during the judicial review proceedings that led to the Supreme Court’s order.
[62] The Supreme Court clearly indicated that it expected that one of the possible outcomes of the reconsideration was that the Commissioner would determine that some or all of the Report should be ordered disclosed. Such an outcome would only be possible if the reconsideration that was intended by the Supreme Court included the issue of whether the s. 14 exemption applied to all portions of the Report.
[63] Under the terms of the Supreme Court’s remission order, the IPC was required to reconsider both the applicability of the s. 14(2)(a) exemption to the Report (and parts thereof) and the propriety of the Ministry’s exercise of discretion in claiming this exemption.
[64] The IPC, instead, misapprehended and narrowed the scope of the remittal and therefore failed to consider the question of the applicability of the s. 14(2)(a) exemption. As such, the Commissioner erred in law by failing to follow the Supreme Court’s order.
[65] We therefore set aside the decision of the IPC in Final Order PO-3402-F, in which the Commissioner closed that CLA’s file, and quash the decision in Interim Order PO-3231-I, in which the Commissioner concluded he was functus officio regarding the applicability of the s.14(2)(a) exemption to the Report.
The Matter is remitted back to the Commissioner to determine whether the portions of the Report that remain at issue qualify for an exemption under s. 14(2)(a) and to decide whether to return the matter to the Ministry to exercise its discretion in accordance with the directions of the Commissioner in Orders PO-3231-I, PO-3322-I, and PO-3402-F
[66] The CLA submitted that the s. 14(2)(a) exemption is inapplicable to at least some of the withheld portions of the Report. The CLA had made this submission to Commissioner Beamish; however, he did not address it, concluding instead that he was functus officio.
[67] It was the CLA’s position that the s. 14(2)(a) exemption is inapplicable to at least some of the withheld portions of the Report. The CLA noted that its ability to make precise submissions about the applicability of the exemption is limited by its lack of knowledge of the content of these portions of the Report.
[68] It is the Ministry that bears the burden of demonstrating “that the record or the part falls within one of the specified exemptions”, in this case s. 14(2)(a).[^12] The Ministry may exercise its discretion to withhold a record or part of a record only if an exemption properly applies to that record or part thereof. The standard of review regarding the exercise of discretion by the Ministry is reasonableness.
[69] In its “First Revised Ministry Decision”, the Ministry claimed that the s. 14(2)(a) exemption was applicable to the Report as a whole on the basis that s. 14(2)(a) is “a record-specific exemption” and “there is no obligation on the Ministry to consider severing the report.” When the Ministry released some parts of the Report, it claimed it was exercising its discretion to release those portions of the Report, notwithstanding the s. 14(2)(a) exemption. The Ministry maintained that it had considered the s. 14(2)(a) exercise of discretion in respect of each portion of the Report when it decided to release certain parts and not others.
[70] The CLA alleges that the Ministry has made two errors in its handling of the CLA’s request for disclosure:
a) The Ministry has not properly considered whether all parts of the Report actually qualify as a “report” within the meaning of s. 14(2)(a); and
b) The Ministry failed to properly exercise its discretion as required by s. 14(2)(a) to disclose those parts that do qualify as a “report” by basing its reasons for withholding parts of the Report on incorrect considerations and in violation of the directions from the IPC.
[71] The CLA argued that the Ministry’s decision to withhold the portions of the Report that remain at issue was based upon a legally erroneous position regarding the applicability of the obligation of severance to the s. 14(2)(a) exemption.
[72] Section 10 of FIPPA provides instruction to institutions when a request for information is received by a member of the public. Specifically, s. 10(1)(a) states that “every person has a right of access to a record or part of a record in the custody or under the control of an institution unless, (a) the record or the part of the record falls within one of the exemptions under section 12 to 22” (emphasis added). The obligation of severance set out in s. 10(2) applies to “a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22”.
[73] In our view, it is clear that section 10 required the Ministry to first consider whether each and every part of the 318-page OPP Report qualified as a “report” within the meaning of s. 14(2)(a). For every part of the Report that does not qualify as a “report”, the content cannot be withheld, subject to other considerations such as non-disclosure orders or release of personal information, which are not at issue in this proceeding.
[74] Similarly, the Ministry was required to consider whether or not those parts of the Report that qualify under s. 14(2)(a) should be released by way of severance because s. 10(2) expressly applies to “a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22”.
[75] The CLA submitted that the Ministry failed to conduct a review to first ascertain whether or not all parts of the document constituted a “report”; instead it declared the entire document was a “report” and then determined whether or not to exercise its discretion pursuant to s. 14(2)(a) in respect of any or all portions of the Report.
[76] The CLA argued that from their review of the portions of the Report that have been disclosed, the only portion of the Report that truly qualifies as a “report” within the meaning of s. 14(2)(a) is page 24. Page 24 contains a statement of the OPP investigators’ analysis and conclusions based on the information collected in the investigation. Page 24 was disclosed by the Ministry, with some limited redactions, in its “First Revised Ministry Decision”.
[77] The CLA argued that none of the transcripts of interviews conducted with the 11 individual witnesses, nor the associated summaries and synopses of those interviews, qualify as “reports” within the meaning of s. 14(2)(a).
[78] It was the CLA’s position that the withheld transcripts of interviews of the three individuals who did not consent to the release of that information are in fact investigative records that reflect or summarize facts, rather than providing an evaluative consideration of the information gathered in the investigation. The transcripts are witness statements, reduced to writing from an audio recording.
[79] The CLA asked this Court to consider the fact that the IPC has consistently held that a witness statement, whether in writing, audio, or video form, does not constitute a “report” within the meaning of s. 14(2)(a).[^13] Similarly, the associated summaries of each interview would therefore not qualify as “reports”, as these are merely recordings of observations and contain no evaluative content.[^14]
[80] Numerous IPC decisions have established that in order to qualify as a “report” within the meaning of s. 14(2)(a), each portion of a record must consist of “a formal statement or account of the results of the collation and consideration of information.” These past decisions have also held that such reports generally do not include mere observations or recordings of fact.[^15]
[81] The CLA argued, in the alternative, that even if any of the withheld portions of the Report that remain at issue are found to qualify for exemption under s. 14(2)(a), the Ministry did not exercise its discretion properly when it withheld the three witness interviews solely on the basis of the lack of consent from those witnesses.
[82] Commissioner Beamish issued three decisions, each time finding that the Ministry had improperly exercised its discretion by considering irrelevant factors and failing to consider relevant ones. In his Second Interim Order, Commissioner Beamish specified that any exercise of discretion in which the Ministry continued to withhold portions of the Report because it had not received the consent of the interviewees was improper and would not be upheld.
[83] In his Final Order, Commissioner Beamish concluded that the Ministry had twice refused to follow his guidance regarding the proper exercise of its discretion. Findings of this kind, involving the determination of questions of fact and the interpretation of the Commissioner’s home statute, are to be treated with deference by a reviewing court.[^16]
[84] Despite having concluded that the Ministry’s exercise of discretion was improper, the Commissioner closed the CLA’s appeal file by way of his Final Order and declared himself functus officio, both of which we have now set aside.
[85] This matter is therefore remitted back to the IPC to determine in accordance with our findings and direction set out in these reasons, whether the portions of the Report that remain at issue qualify for exemption under s. 14(2)(a).
The Ministry disregarded the proper direction of the Commissioner with respect to its exercise of its discretion to claim the s. 14(2)(a) exemption with respect to the Report.
[86] We also find that the Ministry exercised its s. 14(2)(a) discretion on the basis of an improper consideration with respect to the withheld portions of the Report that remain at issue and that this exercise of discretion was unreasonable in light of the IPC’s clear directions.
[87] We find that the Ministry failed to follow the direction of the IPC regarding the proper exercise of its discretion. It was improper for the Ministry to use the lack of consent of the interviewees as the basis for refusing to release the withheld portions of the Report. Had the three witnesses consented to the release of the information, the Ministry would have had no valid concerns regarding the release of the pages that remain at issue from the Report. We agree with the IPC’s position in this regard.
[88] Notwithstanding this finding, we do not have jurisdiction to remit the matter back to the Ministry for reconsideration. That authority belongs to the Commissioner. Therefore, if any of the withheld portions of the Report that remain at issue do qualify for an exemption under s. 14(2)(a), this issue is also remitted back to the IPC to decide whether to return the matter to the Ministry for reconsideration and to instruct the Ministry to exercise its discretion in accordance with the findings and directions of the Commissioner as set out in Orders PO-3231-I, PO-3322-I, and PO-3402-F.
[89] This court does have the jurisdiction to grant declaratory relief by virtue of s. 97 of the Courts of Justice Act.[^17]
[90] In Solosky v. The Queen, the Supreme Court of Canada adopted the following statement regarding the granting of declaratory relief: “The declaratory action is discretionary and the two factors which will influence the court in the exercise of its discretion are the utility of the remedy, if granted, and whether, if it is granted, it will settle the questions at issue between the parties.”[^18]
[91] In this case, there can be no doubt that the dispute that exists between the parties is the Ministry’s refusal to exercise its discretion in respect of the Report in accordance with the IPC’s instructions. The second factor considers whether a declaration is capable of having a practical effect on resolving the dispute.
[92] We have already found that the Ministry has refused to exercise its discretion properly, despite the Commissioner’s orders that it do so. We find that a declaration will serve a useful purpose and assist in the resolution of the dispute.
[93] We therefore declare that the Ministry disregarded the proper direction of the Commissioner with respect to its exercise of its discretion to claim the s. 14(2)(a) exemption with respect to the Report.
Conclusion
[94] Because of the Orders and Declaration we have made, we decline to exercise our jurisdiction to order the Ministry to provide the CLA with access to the withheld portions of the Report that do not qualify for an exemption under s.14(2)(a) of the Act.
[95] It is our view that this case does not fall within the class of exceptional cases in which it is appropriate for a reviewing court to render the decision that the tribunal ought to have rendered.
[96] Similarly, because the CLA’s application was granted with respect to the Commissioner’s decision to close the CLA’s appeal file and with respect to the Commissioner’s conclusion that he was functus officio, it is unnecessary for us to consider whether or not the rules of procedural fairness were breached.
[97] For the reasons set out above, we make the following orders and declaration:
a) The Commissioner’s decision in Final Order PO-3402-F to close the CLA’s appeal file is set aside;
b) The Commissioner’s conclusion in Interim Order PO-3231-I that he was functus officio in respect of the applicability of the s. 14(2)(a) exemption to the OPP Report is also set aside;
c) The matter is remitted back to the Commissioner to determine, in accordance with the Court’s directions as set out in these reasons, whether the portions of the Report that remain at issue qualify for exemption under s. 14(2)(a);
d) If any of the withheld portions of the Report that remain at issue do qualify for an exemption under s. 14(2)(a), this issue is also remitted back to the IPC to decide whether to return the matter to the Ministry for reconsideration and to instruct the Ministry to exercise its discretion in accordance with the findings and directions of the Commissioner as set out in Orders PO-3231-I, PO-3322-I, and PO-3402-F; and
e) We declare that the Ministry disregarded the proper interpretation and application of the right of access provisions and law enforcement provisions of the Act, as determined by the Orders of the Commissioner, with respect to the exercise of its discretion to claim the s. 14(2)(a) exemption in respect of the disputed pages of the OPP Report.
[98] As per the parties’ submissions, no costs are awarded.
Madam Justice B. R. Warkentin
Mr. Justice E. Then
Madam Justice H. Sachs
Released: November 15, 2016
Appendix A
PART II FREEDOM OF INFORMATION
Access to Records
Right of access
- (1) Subject to subsection 69 (2), every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,
(a) the record or the part of the record falls within one of the exemptions under sections 12 to 22; or
(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.
Severability of record
(2) If an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22 and the head of the institution is not of the opinion that the request is frivolous or vexatious, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.
Law enforcement
- (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
(d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source;
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(f) deprive a person of the right to a fair trial or impartial adjudication;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons;
(h) reveal a record which has been confiscated from a person by a peace officer in accordance with an Act or regulation;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime.
Idem
(2) A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;
(b) that is a law enforcement record where the disclosure would constitute an offence under an Act of Parliament;
(c) that is a law enforcement record where the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability; or
(d) that contains information about the history, supervision or release of a person under the control or supervision of a correctional authority.
Refusal to confirm or deny existence of record
(3) A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) apply.
Exception
(4) Despite clause (2) (a), a head shall disclose a record that is a report prepared in the course of routine inspections by an agency where that agency is authorized to enforce and regulate compliance with a particular statute of Ontario.
(5) Subsections (1) and (2) do not apply to a record on the degree of success achieved in a law enforcement program including statistical analyses unless disclosure of such a record may prejudice, interfere with or adversely affect any of the matters referred to in those subsections.
Solicitor-client privilege
- A head may refuse to disclose a record,
(a) that is subject to solicitor-client privilege;
(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation; or
(c) that was prepared by or for counsel employed or retained by an educational institution or a hospital for use in giving legal advice or in contemplation of or for use in litigation.
Danger to safety or health
- A head may refuse to disclose a record where the disclosure could reasonably be expected to seriously threaten the safety or health of an individual.
Personal privacy
- (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
(a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access;
(b) in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates;
(c) personal information collected and maintained specifically for the purpose of creating a record available to the general public;
(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;
(e) for a research purpose if,
(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,
(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and
(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations; or
(f) if the disclosure does not constitute an unjustified invasion of personal privacy.
Criteria re invasion of privacy
(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,
(a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;
(b) access to the personal information may promote public health and safety;
(c) access to the personal information will promote informed choice in the purchase of goods and services;
(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;
(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;
(f) the personal information is highly sensitive;
(g) the personal information is unlikely to be accurate or reliable;
(h) the personal information has been supplied by the individual to whom the information relates in confidence; and
(i) the disclosure may unfairly damage the reputation of any person referred to in the record.
Presumed invasion of privacy
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
(d) relates to employment or educational history;
(e) was obtained on a tax return or gathered for the purpose of collecting a tax;
(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or
(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.
Limitation
(4) Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,
(a) discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution or a member of the staff of a minister;
(b) discloses financial or other details of a contract for personal services between an individual and an institution;
(c) discloses details of a licence or permit or a similar discretionary financial benefit conferred on an individual by an institution or a head under circumstances where,
(i) the individual represents 1 per cent or more of all persons and organizations in Ontario receiving a similar benefit, and
(ii) the value of the benefit to the individual represents 1 per cent or more of the total value of similar benefits provided to other persons and organizations in Ontario; or
(d) discloses personal information about a deceased individual to the spouse or a close relative of the deceased individual, and the head is satisfied that, in the circumstances, the disclosure is desirable for compassionate reasons.
Refusal to confirm or deny existence of record
(5) A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy.
Exemptions not to apply
- An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.
Appendix B
Summary of Pages that Remain at Issue
Pages
Contents
9–23
Chapter Two: Investigation
• Pages 18–19 withheld in entirety: likely contain summaries of statements of 2 individuals — Ministry’s exercise of s. 14 discretion not upheld in Final Order
• Page 23 withheld in entirety: likely contain summaries of statements of one individual — Ministry’s exercise of s. 14 discretion not upheld in Final Order
25–46
Chapter Three: Disclosure Final Report
• Pages 42–44 withheld in entirety: likely contain summaries of the responses of certain witnesses providing their reasons for not disclosing certain information — Ministry’s exercise of s. 14 discretion not upheld in Final Order
• Page 47 withheld in entirety
48–318
In respect of 11 witnesses who were interviewed, a transcript of the interview, and two-page summary/synopsis of the information obtained in the interview
• Pages 121–161 withheld in entirety: individuals who did not provide consent for disclosure — Ministry’s exercise of s. 14 discretion not upheld in Final Order
• Pages 286–292 withheld in entirety: individuals who did not provide consent for disclosure — Ministry’s exercise of s. 14 discretion not upheld in Final Order
• Pages 308–318 withheld in entirety: individuals who did not provide consent for disclosure — Ministry’s exercise of s. 14 discretion not upheld in Final Order
CITATION: Criminal Lawyers’ Association v. Ministry of Community Safety and Correctional Services, 2016 ONSC 6948
COURT FILE NO.: 504/14
DATE: 20161115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CRIMINAL LAWYERS’ ASSOCIATION
Applicant
- and –
MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and THE INFORMATION AND PRIVACY COMMISSIONER
Respondents
REASONS ON APPLICATION FOR JUDICIAL REVIEW
Then J.
Sachs J.
Warkentin J.
Released: November 15, 2016
[^1]: R. v. Court (1997), 1997 12180 (ON SC), 36 O.R. 263 at 297 (Gen. Div.). [^2]: Criminal Lawyers' Association v. Ontario (Ministry of Public Safety and Security) (2004), 2004 18977 (ON SCDC), 70 O.R. (3d) 332 (Div. Ct.). [^3]: Criminal Lawyers' Association v. Ontario (Ministry of Public Safety and Security), 2007 ONCA 392, 86 O.R. (3d) 259. [^4]: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 [CLA, SCC] (Factum of the Intervener, the Information Commissioner of Canada, at paras. 2–3). [^5]: CLA, SCC, ibid, at para. 75. [^6]: CLA, SCC, ibid, at paras. 72–74. [^7]: CLA, SCC, ibid, at para. 76. [^8]: Canada Post Corporation v. Canadian Union of Postal Workers (2008), 2008 32313 (ON SCDC), 238 O.A.C. 195, at para. 13 (Div. Ct.); Grier v. Metro International Trucks Ltd. (1996), 1996 11795 (ON SC), 28 O.R. (3d) 67, at pp. 70–71 (Div. Ct.); Brockville Psychiatric Hospital v. O.P.S.E.U., Local 439 (2007), 220 O.A.C. 154, at para. 45 (Div. Ct.); Canadian Association of Film Distributors and Exporters v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235, 378 D.L.R. (4th) 742, at para. 58. [^9]: Bernard v. Canada (AG), 2012 FCA 92, [2012] 4 F.C.R. 370, at para. 31, aff’d 2014 SCC 13, [2014] 1 S.C.R. 227, at para. 35, per Abella and Cromwell JJ., at paras. 84–90, per Rothstein J., dissenting in part; Corlac Inc. v. Weatherford Canada Ltd., 2012 FCA 261, 440 N.R. 113, at para. 22; Shuchuk v. Alberta (Workers’ Compensation Board), 2012 ABCA 50, 522 A.R. 336, at para. 14. [^10]: Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125, at para. 67, per McLachlin C.J., dissenting on other grounds, citing Shuchuk, supra, at para. 23; Canada (Commissioner of Competition) v. Superior Propane, 2003 FCA 53, [2003] 3 F.C.R. 529, at para. 10. [^11]: Pixiu Solutions Inc. v Canadian General-Tower Ltd., 2016 ONSC 842, at paras. 25, 27; Gammie v South Bruce Peninsula (Town), 2014 ONSC 6209, at para. 56. [^12]: FIPPA, supra, s. 53. [^13]: IPC Order PO-1959 (October 17, 2001), at p. 7; IPC Order PO-3003 (October 18, 2011), at para. 45; IPC Order PO-2821 (September 3, 2009), at p. 8. [^14]: IPC Order PO-2054-I (October 21, 2002), at p. 20; IPC Order PO-2821 (September 3, 2009), at p. 8; IPC Order PO-2286-I (May 27, 2004), at p. 18; IPC Order PO-1845 (December 18, 2000), at p. 10; IPC Order MO-1341 (September 21, 2000), at p. 11; IPC Order PO-1819 (September 29, 2000), at pp. 7–9. [^15]: IPC Order MO-1238 (October 5, 1999); IPC Order PO-3003 (October 18, 2011), at paras. 35–38; IPC Order MO-1341 (September 21, 2000), at p. 11; IPC Order PO-1959 (October 17, 2001), at p. 5; IPC Order M-682 (January 5, 1996), at p. 4; IPC Order M-397 (October 4, 1994), at p. 4; IPC Order PO-2054-I (October 21, 2002), at pp. 19–20; IPC Order PO-2286-I (May 27, 2004), at pp. 16–18; IPC Order PO-1845 (December 18, 2000), at pp. 9–10. [^16]: CLA, SCC, supra, at para. 70. [^17]: Courts of Justice Act, R.S.O. 1990, c.43, s. 97: “The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right, whether or not any consequential relief is or could be claimed.” [^18]: 1979 9 (SCC), [1980] 1 S.C.R. 821, at p. 832.```