CITATION: Mann v. Ontario (Ministry of the Environment), 2017 ONSC 1056

DIVISIONAL COURT FILE NO.: 202/14 DATE: 20170213

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, NORDHEIMER and SPIES JJ.

BETWEEN:

JOHN R. MANN III

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ENVIRONMENT AND INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO

Respondents

Daniel C. Santoro, for the Applicant

Jeremy Glick, for the Respondent Her Majesty the Queen in the right of Ontario, as represented by the Ministry of the Environment

Lawren Murray, for the Respondent Information and Privacy Commissioner of Ontario

HEARD at Toronto: February 13, 2017

NORDHEIMER J. (Orally)

[1] John Mann applies for judicial review of a decision of the Information and Privacy Commissioner that denied him a fee waiver for information that he sought from the Ministry of the Environment (the “MOE”) through a freedom of information request. It is not, in my view, necessary to review the background facts in order to decide this application.

[2] It is sufficient to note that the applicant made a freedom of information request to the MOE that necessitated the review of thousands of pages of records. Before completing this review, the MOE advised the applicant that it would likely cost in excess of $600 to respond to his request. He was asked if he wished to proceed with the request. The applicant was also provided with the opportunity to work with the MOE to re-scope the request to reduce the cost. The applicant did not seek to narrow the scope of the request. He was charged a fee of $660.

[3] The applicant appealed that decision to the Office of the Information and Privacy Commissioner of Ontario (the “IPCO”). An Adjudicator of the IPCO found that the fee charged by the MOE was too high and reduced the fee by more than 40% to $385. The Adjudicator, however, rejected the applicant’s request that the fee be waived. Among other things, the Adjudicator found that the applicant did not work with the MOE to focus the request to reduce costs.

[4] The parties agree that the standard of review to be applied to the decision is that of reasonableness. Reasonableness is established by demonstrating that the decision in question “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” – Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.

[5] In deciding whether the fee should be waived, the Adjudicator applied s. 57(4) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, which reads:

(4) A head shall waive the payment of all or any part of an amount required to be paid under subsection (1) if, in the head’s opinion, it is fair and equitable to do so after considering,

(a) the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1);

(b) whether the payment will cause a financial hardship for the person requesting the record;

(c) whether dissemination of the record will benefit public health or safety; and

(d) any other matter prescribed in the regulations.

[6] As is apparent from the plain wording of the subsection, waiver of “all or any part” of an amount required to be paid is mandatory, if the head determines, in his or her opinion, that it is fair and equitable to do so, after considering the factors outlined in the subsection.

[7] I do not agree with the respondents that the subsection involves a two part test, although I accept that one could approach the analysis in two stages. There is only one requirement in the subsection for waiver of all or any part of a fee and that is whether, in the opinion of the head, it is fair and equitable to do so. The head is guided in that determination by the factors set out in the subsection, but it remains the fact that the sole test is whether any waiver would be fair and equitable.

[8] The Adjudicator considered the facts of this particular case. She found that the dissemination of the records would benefit public health or safety, but concluded, nonetheless, that it would not be fair and equitable to grant a waiver. In reaching that conclusion, the Adjudicator began by noting that the fee provisions in the Act established a user-pay principle, which is:

… founded on the premise that requestors should be expected to carry at least a portion of the cost of processing a request.

[9] The Adjudicator then went on to set out a number of factors that might be considered in deciding whether it was fair and equitable to waive the fees. She noted that the applicant had not addressed this issue directly in his submissions. She also noted that the applicant had not attempted to work with the MOE to narrow the scope of his request. She further noted that she had already reduced the fee that the applicant would have to pay from $660 to $385. Contrary to the applicant’s submission, it is clear that the Adjudicator considered the “overcharging” in reaching her conclusion regarding what was fair and equitable in this case.

[10] While the applicant has attempted to compartmentalize the Adjudicator’s reasons in an effort to show error, the fact is that he has not been able to point to any error or omission in the Adjudicator’s overall analysis. Rather, he asserts simply that the fee should be waived because the information sought would benefit public health and safety. The applicant’s position would be correct if s. 57(4) required a waiver solely on that basis. However, it does not. It requires that the waiver be fair and equitable in the opinion of the head. A finding that the former exists does not dictate that the latter must follow.

[11] The requirement that a waiver must be fair and equitable gives the head a broad range of discretion in reaching his/her opinion. I am unable to find anything in the record, in this case, that could sustain a finding that the Adjudicator’s decision did not fall within a range of possible, acceptable outcomes that are defensible.

[12] The application for judicial review is dismissed.

COSTS – Sachs J.

[13] I have endorsed the Application Record as follows: “This application is dismissed for the reasons given orally by Nordheimer J. The Respondent MOE is entitled to its costs of this application. While we do not condone the reference to “fraudulent misrepresentation” in the Notice of Application, the allegation was not pursued and, thus, we decline to make an award of substantial indemnity costs in the circumstances of this case. Therefore, we award the MOE its partial indemnity costs, which we fix in the amount of $4,000.00, all inclusive.”

___________________________ NORDHEIMER J.

I agree

SACHS J.

I agree

SPIES J.

Date of Reasons for Judgment: February 13, 2017

Date of Release: February 14, 2017

CITATION: Mann v. Ontario (Ministry of the Environment), 2017 ONSC 1056

DIVISIONAL COURT FILE NO.: 202/14 DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, NORDHEIMER and SPIES JJ.

BETWEEN:

JOHN R. MANN III

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ENVIRONMENT AND INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO

Respondents

ORAL REASONS FOR JUDGMENT

NORDHEIMER J.

Date of Reasons for Judgment: February 13, 2017

Date of Release: February 14, 2017