CITATION: Children's Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2017 ONSC 642
DIVISIONAL COURT FILE NO.: 443/15 DATE: 20170202
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, C. HORKINS & EMERY JJ.
BETWEEN:
CHILDREN'S LAWYER FOR ONTARIO
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, THE ATTORNEY GENERAL FOR ONTARIO and JOHN DOE, REQUESTER
Respondents
Ian Ross and Jane Long, for the Applicant
Lawren Murray, for the Respondent Information and Privacy Commissioner of Ontario
Sara Blake and Jon Bradbury for the Respondent Attorney General for Ontario
HEARD at Toronto: December 1, 2016
C. hORKINS J.
introduction
[1] The Attorney General for Ontario ("MAG") received an access request from the Requester under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31 ("FIPPA"). The Requester sought production of records from the Children's Lawyer for Ontario ("Children's Lawyer") relating to a custody and access dispute before the court. Some of the records are privileged. The Requester is a parent of the children that the Children's Lawyer represented in the custody and access dispute.
[2] MAG asked the Children's Lawyer to review the access request and provide a response. The Children's Lawyer advised MAG that it would not respond because in her view FIPPA does not apply to private litigation files relating to her representation of a child under s. 89 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In this capacity, the Children's Lawyer states that she represents the private legal interests of the child and does not act on behalf of MAG.
[3] MAG informed the Requester of the Children's Lawyer's position that FIPPA does not apply to his request because MAG does not have custody or control of the records under s. 10(1) of FIPPA. As a result, the request for the records was denied.
[4] Subsection 10(1) of FIPPA deals with access to records and states in part that "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" subject to certain exemptions and whether the request for access is frivolous or vexatious.
[5] The Requester appealed MAG's decision to the Information and Privacy Commissioner of Ontario ("the IPC").
[6] On August 7, 2015 the IPC issued order PO-3520 (“the Order”). The Adjudicator found that the records are in "the custody or under the control" of MAG and ordered MAG to issue an access decision to the Requester.
[7] The Children's Lawyer seeks judicial review of the Order. MAG supports the Children's Lawyer’s position.
the Decision under review
[8] The Adjudicator's detailed reasons review the statutory framework, her findings of fact and an analysis of why s. 10(1) applies to the records in issue. The reasons are reviewed below.
[9] The Adjudicator reviewed the following background facts leading up to the request for records.
[10] In the Requester's custody and access dispute, the court made an order under s. 89(3.1) of the Courts of Justice Act requesting that the Children's Lawyer appoint counsel for the children. The dispute involved two separate court proceedings: one in Thunder Bay and a second in Milton. In each proceeding, the Children's Lawyer appointed counsel in the community to represent the children, as agent for the Children's Lawyer.
[11] The Adjudicator noted that an order under s. 89(3.1) to appoint counsel, creates a solicitor-client relationship between the child and the Children's Lawyer. This is different from a court order under s. 112 of the Courts of Justice Act, when the Children's Lawyer assigns a clinical investigator. During a s. 112 investigation, there is no solicitor-client relationship between the child and the Children's Lawyer.
[12] The Requester sought production of the following records from the custody and access proceedings involving his children. Only some of these records are privileged:
• Privileged and non-privileged reports relating to his two children and an identified court file in the Superior Court of Justice in Thunder Bay.
• All documents filed with the court, including settlement reports, medical reports, psychological and educational reports, conversations and notes and transcripts.
• All notes and information relating to the duties of a named lawyer in an identified Milton court file, including notes, court documents and assessments.
• In addition to the named lawyer in Milton, the requester specified he was seeking the records of two named individuals representing the Children's Lawyer in Thunder Bay, one being the Children's Lawyer’s legal agent and the other a social worker.
[13] MAG issued a decision letter to the Requester denying the request. The letter explained that the Children's Lawyer "has taken and continues to take the position that [FIPPA] does not apply to litigation files in which services are provided to children by the Children's Lawyer." As a result, MAG told the Requester that the records are not in its custody or under its control. The Requester appealed to the IPC.
[14] The Adjudicator noted that the sole issue on the appeal was whether MAG has custody or control of the records. Section 10(1) of FIPPA provides a right of access to a record or part of a record in the custody or control of an institution. A record will be subject to FIPPA if it is in the custody or under the control of an institution.
[15] The reasons explain that if a record is in the custody or under the control of an institution, this does not necessarily mean that a requester will be provided access to it. A record may be excluded from the application of FIPPA under s. 65, or may be subject to a mandatory or discretionary exemption in ss. 12 through 22 and s. 49. As well, through s. 67, a record may be subject to an overriding confidentiality provision enacted in another statute.
[16] The parties agreed on the following key facts. FIPPA applies to institutions and this includes MAG. The Children's Lawyer is a branch of MAG and within the formal structure of MAG, the Children's Lawyer operates as a branch within the Victims and Vulnerable Persons Division. There is no separate administrative structure for the Children's Lawyer established under any statute. Its legal counsel and executive, administrative and clinical/investigative staff are all employed by MAG.
[17] Further, as a branch of MAG, the Children's Lawyer is accountable to MAG for the expenditure of public funds. The Children's Lawyer is subject to directives such as the Travel, Meal and Hospitality Expenses Directive, the Business Planning and Allocations Directive, the General Expenses Directive, and the Procurement Directive. The Children's Lawyer acknowledged that records related to all these matters are subject to FIPPA.
[18] The Adjudicator described the Children's Lawyer’s position. In essence, the Children's Lawyer argued that "while it is 'part of' the ministry for the purposes of the Act with respect to some of its records, it is not 'part of' the ministry for others", specifically when it appoints counsel for a child under s. 89(1) of the Courts of Justice Act. The Adjudicator found no "factual or legal support for such a conclusion." At para. 59, the Adjudicator stated:
… The Act applies to "institutions". Accepting that a branch of an institution is part of an institution, I find no basis for differentiating between different aspects of the operations of that branch for FIPPA purposes. Whether the records of the [Children's Lawyer] are generated for the purpose of discharging its financial and other accountabilities to the ministry, in the course of providing clinical services, or in the course of legal representation, all such records are connected with that office's core mandate, within the broader umbrella of the ministry's supervision of the administration of justice.
[19] The Adjudicator explained at para. 61 that FIPPA does not support the Children's Lawyer's position:
The result urged by the [Children's Lawyer] would treat some of its records as excluded from the Act when it is engaged in certain functions, while other records would be subject to the Act. While the Act itself provides for such a result, through the exclusion of some categories of records, the [Children's Lawyer's] submissions would, in effect, amount to indirect recognition of an additional exclusion which has not been explicitly legislated.
[20] The Children's Lawyer argued that its fiduciary duty to the child as client is incompatible with the access rights under FIPPA. Specifically, when the Children's Lawyer provides counsel to a child it acts "completely independent" from MAG. The Children's Lawyer’s records are kept separate from MAG's records, MAG has no access to the records and the Children's Lawyer is solely responsible for the creation, maintenance and disposition of the records. Given the solicitor-client relationship, the Children's Lawyer stated that her records belong to the client and are under the client's control, not the control of the Children's Lawyer or MAG.
[21] The Adjudicator rejected this argument. She found that the confidentiality concerns "can be addressed by exemptions under [FIPPA]." Specifically s. 19(a) states that a head of an institution "may refuse to disclose a record that is subject to solicitor-client privilege". The Adjudicator relied on Montana Indian Band v. Canada, 1988 9466 (FC), [1988] F.C.J. No. 339 where the records in issue were those of an Indian Band, generated within a fiduciary relationship between the Crown and the Band. The court found that the federal government's fiduciary obligations in relation to the Band's financial information did not negate government control over the records at issue. Like FIPPA, the equivalent federal privacy act allowed the government to refuse disclose confidential records.
[22] The Adjudicator rejected the argument that FIPPA creates an inherent conflict of interest for the Children's Lawyer. The Children's Lawyer argued that if MAG reviews the records to make an access decision, this would interfere with the independence of the Children's Lawyer and breach the solicitor-client privilege. Alternatively, if the Children's Lawyer makes the access decision there is an intolerable conflict of interest. This is because the duties owed to the client would prevent the Children's Lawyer from disclosing records to a third party, if it was against the client's best interests to do so. As a result, the Children's Lawyer argued that she is unable to properly exercise discretion under FIPPA, or submit to MAG's exercise of that discretion, because the Children's Lawyer is bound by her fiduciary and common law duties as a solicitor to always adopt a position favourable to her clients.
[23] In rejecting this argument, the Adjudicator noted that in January 1998, the head of MAG signed a Delegation of Authority giving the Children's Lawyer all power and authority to make decisions under FIPPA. Pursuant to this delegation, the Children's Lawyer has responded to requests for records under FIPPA as a branch of MAG and for over two decades has made the necessary access decisions. The IPC has issued more than a dozen orders in appeals from these access decisions in relation to the Children's Lawyer's records.
[24] While the Adjudicator agreed that past practice is not determinative of the issue of whether the records at issue are covered by FIPPA, it was clearly relevant as the Adjudicator explained at para. 64:
… This past practice, however, is relevant in assessing the claim that the [Children's Lawyer] could be placed in an "intolerable conflict" in responding to access requests. The [Children's Lawyer] has indicated that it has had sole decision-making power under the Act with respect to litigation files involving children. Given this practice, the existence of the delegation, and no suggestion that the ministry has ever sought to exercise decision-making power over those types of records, I find it difficult to give much weight to the [Children's Lawyer]'s submissions of "intolerable conflict". If there were examples of such cases, I would have expected to have been given evidence to this effect. This past practice demonstrates, however, that the independence accorded to the [Children's Lawyer] to perform its functions is not incompatible with its obligations under the Act. I see no reason the [Children's Lawyer] cannot continue to exercise delegated authority from the Attorney General to make decisions under FIPPA, as it has done in the past.
[25] The Adjudicator identified and assessed the factors that are typically used to determine if the record is in the custody or under the control of an institution.
[26] The Adjudicator rejected the Children's Lawyer's argument that she should apply the two part test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25. This test applies when the institution does not have physical possession of the records. The Adjudicator explained that the argument was premised on the Children's Lawyer being a separate entity from MAG. Since the Adjudicator found that the Children's Lawyer is a branch of MAG, she explained that it "would be redundant to ask whether the [Children's Lawyer] 'could reasonably be expected' to obtain the records at issue."
[27] The Adjudicator concluded that the records "are in the custody or control of an institution under the Act" and directed MAG to issue an access decision to the Requester"which decision may be made by the [Children's Lawyer] under its delegation."
STANDARD OF REVIEW
[28] The parties do not agree on the standard of review. The Children's Lawyer asserts that the standard of review is correctness. MAG agrees with this position. The IPC asserts that the standard of review is reasonableness. As explained below, I agree that the standard of review is reasonableness.
[29] The Children's Lawyer advances two arguments in favour of a correctness standard of review. First, she argues that this court is bound by previous jurisprudence that describes s. 10(1) as a “jurisdiction- limiting provision”. This jurisprudence applied a correctness standard of review. Second, the Children's Lawyer argues that the issue on review has broad significance to children across Ontario and therefore requires a correctness standard of review.
The Previous Jurisprudence
[30] The Children's Lawyer relies on three decisions where the meaning of the phrase "in the custody or under control" was in issue and a correctness standard was applied: Walmsley v. Ontario (Attorney General) (1997), 1997 3017 (ON CA), 34 OR (3d) 611 at 7-8 (C.A.) (“Walmsley”), Ottawa (City) v. Ontario (Information and Privacy Commissioner), 2010 ONSC 6835 (Div. Ct.) at para. 20, leave to appeal to the CA refused, M39605 (March 30, 2011) and Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner), 2011 ONSC 172 (Div. Ct.), at paras. 22-24.
[31] The Children's Lawyer states that these decisions have decided the standard of review and this court is bound to follow the same approach. I will briefly review these decisions and then explain why a reasonableness standard of review applies.
[32] In Walmsley a request was made for access to records that were in the possession of members of the Judicial Appointments Advisory Committee. The Adjudicator in Walmsley determined that for the purpose of s. 10 of FIPPA, the records were under the control of MAG and directed MAG to obtain copies of the records. The Adjudicator made clear that this decision left open the question of whether access to the records could be denied under FIPPA.
[33] On review, the Court of Appeal held that a decision as to whether the records were "in the custody or under the control of an institution" under s. 10(1) of FIPPA, was a question of jurisdiction and one that did not require the specialized expertise of the IPC. As a result, the court held that the Adjudicator’s decision was reviewable on a standard of correctness. The court described s. 10(1) of FIPPA as "a jurisdiction-limiting" provision "in the sense that records under the control of an institution are subject to the workings of the Act, both as to access and as to protection of privacy. Records not under the control of an institution are not so subject and are beyond the jurisdiction of the commissioner or his designee."
[34] In the second case, Ottawa (City) v. Ontario (Information and Privacy Commissioner), the City of Ottawa received a request to produce the private emails of an employee who used his work email address for matters unrelated to work. The City permitted incidental use of the City email system, subject to certain conditions. In particular, the City retained the right to monitor the emails for security breaches and non-compliance with policies. The employee in question volunteered on the Board of the local Children's Aid Society and used his work email to send and receive emails relating to this volunteer position. The Requester was seeking the employee's emails to and from the Children's Aid Society. The City refused the request because the records were not within its custody or control and therefore fell outside the scope of the Municipal Freedom & Protection of Privacy Act, R.S.O. 1990, c. M.56 ("MFIPPA"). MFIPPA is the municipal equivalent of FIPPA.
[35] The requester appealed. An arbitrator conducted a hearing and found that the City had custody or control over the emails under s. 4(1) of MFIPPA. This section is the municipal equivalent of s. 10 in FIPPA. Disclosure of the emails was ordered. Like s. 10 in FIPPA, s. 4(1) states that "[e]very 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" subject to the exemptions in the Act.
[36] On review, the court held that the standard of review was correctness. Although this standard was not contested, the court nevertheless explained why correctness rather than reasonableness applied. The court acknowledged at para. 17 that Walmsley was decided before the Supreme Court of Canada's decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190"a decision that fundamentally changed the law with respect to the standard of review of administrative tribunals". The court also noted that Dunsmuir states it is unnecessary to revisit the standard of review where previous jurisprudence has already determined the standard "in a satisfactory manner".
[37] The court concluded at para. 20 that the standard of review was correctness because the heart of the issue under s. 10 was "a jurisdictional question - whether the Act has any application at all to the documents in question." As well, the issue was "a legal question of broad significance for thousands of individuals across the province, going well beyond the interests of the particular parties before the court."
[38] Finally, in the third case Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner), 2011 ONSC 172 (Div. Ct.), a requester sought production of reports that were requested and designed by the Chief Justice of the Ontario Court of Justice for judicial management purposes. The Adjudicator decided that certain reports were in the custody of MAG under s. 10(1) of FIPPA and ordered disclosure. On judicial review, the court followed Walmsley without any reference to Dunsmuir and simply applied a standard of correctness.
[39] I appreciate that the Court of Appeal in Walmsley described s. 10 as "a jurisdiction-limiting" provision and acknowledge that this was followed in two subsequent decisions. However, these decisions are inconsistent with the specific direction in Dunsmuir that has been repeated and clarified in more recent appellate jurisprudence. This jurisprudence supports my conclusion that s. 10 does not raise a true question of jurisdiction that would require a correctness standard of review.
[40] I start with Dunsmuir and the direction at para. 59 that a true question of jurisdiction “is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry”. The court explained that it was moving away from the “extended definitions” of jurisdiction adopted in earlier jurisprudence.
[41] Further, Dunsmuir directs that it is unnecessary to revisit the standard of review where previous jurisprudence has already determined the standard "in a satisfactory manner" (para. 62). I reject the Children's Lawyer’s argument that the three cases reviewed above have determined the standard of review for s. 10(1) “in a satisfactory manner”.
[42] In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, para. 48, the court explained what is meant by "in a satisfactory manner". The court instructed that the standard of review analysis must be redone "…if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review." This is such a case.
[43] After Dunsmuir, courts offered further guidance to determine what a true question of jurisdiction is. In Toronto Hydro-Electric System Ltd. v. Ontario (Energy Board), 2010 ONCA 284, the court warned against falling into the "Jurisdiction Trap" by embracing a wide definition of jurisdiction. The court stated at paras. 22 and 24:
22 Further guidance in terms of defining exactly what constitutes "true" questions of jurisdiction can be gleaned from the reasons of Abella J. in VIA Rail. At para. 91, she cited Pasiechnyk v. Saskatchewan (Workers' Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890, at para. 18, for the proposition that "[t]he test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by legislators to be left to the exclusive decision of the Board?" In the same paragraph, Abella J. also referred to U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1087, where Beetz J. held that "the only question which should be asked [is], 'Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?'"
24 Courts should hesitate to analyze the decisions of specialized tribunals through the lens of jurisdiction unless it is clear that the tribunal exceeded its statutory powers by entering into an area of inquiry outside of what the legislature intended.
[Emphasis added.]
[44] In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 18, the court explained that "Dunsmuir expressly distanced itself from the extended definition of jurisdiction and restricted jurisdictional questions to those that require a tribunal to ‘explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter’ (para. 59; see also United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at para. 5)."
[45] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 34 and 39 ("Alberta Teachers"), the court explained that “[i]n one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction.”
[46] In Alberta Teachers the court emphasized that true questions of jurisdiction are “narrow and will be exceptional." Questions of true jurisdiction are so rare that as of 2011 the court noted in Alberta Teachers that it had not seen a true question of jurisdiction since Dunsmuir. Absent a true question of jurisdiction, Alberta Teachers states that “the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.”
[47] Subsequently, in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 56 and 58, the court stated that "a true question of jurisdiction now refers to whether the tribunal had authority to make the inquiry in the first place" or put another way as "having no jurisdiction to even start an inquiry".
[48] Finally in the recent decision of Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 26, the court once again emphasized that a true question of jurisdiction is rare:
26 This category is "narrow" and these questions, assuming they indeed exist, are rare (Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33-34). It is clear here that the Board may hear a complaint about a municipal assessment. The issue is simply one of interpreting the Board's home statute in the course of carrying out its mandate of hearing and deciding assessment complaints. No true question of jurisdiction arises.
[49] In summary, Dunsmuir explained the narrow nature of a true question of jurisdiction. The jurisprudence that followed amplified and expanded this important point.
[50] The three decisions that the Children's Lawyer relies upon are inconsistent with the current state of the law as reviewed above. Walmsley was decided before Dunsmuir. Ottawa (City) v Ontario (Information and Privacy Commissioner) and Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner) were decided in the early days of Dunsmuir and before most of the jurisprudence that followed. These decisions do not decide the standard of review for s. 10(1) in a “satisfactory manner”.
[51] The s. 10(1) issue cannot possibly be characterized as a true question of jurisdiction because s.10 is the starting point for all access requests under FIPPA. Section 10(1) defines the right of access and when it does not apply as follows:
- (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.
[52] The phrase "in the custody or under the control of an institution" is repeated throughout the Act (i.e. s. 24 the access procedure; s. 42 disclosure of personal information; s. 52 (4) the power of the IPC to review records).
[53] The IPC must carry out its mandate and decide if the records are "in the custody or under the control of an institution". This question is one that “was intended by legislators to be left to the exclusive decision” of the IPC.
[54] Disputes about whether a record is "in the custody or under the control of an institution" are not rare. As part of its mandate, the IPC is called upon to interpret s. 10 on a regular basis. If the head of an institution refuses a request for a record, the Requester may appeal to the IPC. If an inquiry under Part IV of FIPPA is required, s. 54 (1) directs that the IPC "shall make an order disposing of the issues raised by the appeal."
[55] The exercise of interpreting and applying s.10(1) is no different than interpreting and applying an exclusion in FIPPA as occurred in Ontario (Ministry of Community and Social Services) v. John Doe, 2014 ONSC 239. In this case, the IPC interpreted s. 65(6)3 of FIPPA. This section excluded certain information from the Act. Although pre-Dunsmuir cases had applied a correctness standard to the IPC's interpretation of this section, the Divisional Court found that this was not a true question of jurisdiction, given Alberta Teachers.
[56] In summary, the Adjudicator was interpreting a section in the home statute with which she has particular familiarity. The task of interpreting s. 10(1) falls squarely within the Adjudicator’s specialized area of expertise. This is not a true question of jurisdiction. Deference is owed to the Adjudicator and a reasonableness standard of review applies.
A Matter of Broad Significance
[57] Dunsmuir recognized that a standard of correctness will continue to apply to questions of law that are “both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise” (para 60). The Children's Lawyer argues that the issue on review falls within this category of cases because it has broad significance to children across Ontario. I disagree.
[58] The Order has a narrow focus. It simply directs MAG to issue an access decision to the Requester. The head of MAG delegated this decision making authority to the Children's Lawyer. The Order does not require the Children's Lawyer to produce privileged documents to the Requester. When the access decision is made, disclosure of a solicitor-client privileged document can be refused under s.19 of FIPPA. In these circumstances, there is no basis for concluding that the decision under review raises a question of law of “central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise”.
Conclusion re Standard of Review
[59] In summary, the Adjudicator’s interpretation of s. 10(1) was simply an interpretation of the home statute in the course of carrying out her mandate under the Act. This falls squarely within the Adjudicator’s specialized area of expertise. The review does not raise a true question of jurisdiction or question of law of central importance to the legal system. As a result, the standard of review is reasonableness.
[60] As stated in Dunsmuir at para 47, a reasonableness standard directs the court to inquire "into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes." The inquiry is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The grounds of judicial review
[61] The Children's Lawyer argues that the Order should be quashed or set aside. Four grounds are advanced. While the Children's Lawyer frames the grounds as errors of law and applies a correctness standard, the standard of review is reasonableness.
[62] First, the Children's Lawyer states that the Adjudicator erred because the decision creates two untenable situations. It requires the Children's Lawyer to disclose the child's client records to MAG so that it can make an access decision. The Children's Lawyer states that this is a breach of solicitor-client privilege and contravenes her duty to maintain confidentiality of her client's files. Alternatively, if the head of MAG delegates the access decision to the Children's Lawyer, it places the Children's Lawyer in an intolerable conflict of interest. The fiduciary duty that the Children's Lawyer owes to her clients precludes her from balancing the interests of the Requester (with whom the child may have an adverse interest) and the interest of the public in disclosure.
[63] Second, the Children's Lawyer states that the Adjudicator’s interpretation of the phrase "in the care custody and control" in s. 10 of FIPPA does not comply with the rules of statutory interpretation.
[64] Third, the Children's Lawyer states that the Adjudicator erred in her consideration of the relevant factors related to "custody or control" of records under FIPPA.
[65] Fourth, the Children's Lawyer argues that the decision is not consistent with current case law.
analysis
[66] The standard of review is reasonableness. As explained below, the decision clearly falls within a range of possible and acceptable outcomes which are defensible in respect of the facts and law. I add that if a higher court should apply a standard of correctness, the decision is also correct.
The Untenable Situations - Breach of Solicitor-Client Privilege and Intolerable Conflict of Interest
[67] The Children's Lawyer argued the same untenable situations before the Adjudicator. The Adjudicator’s reasons are set out above. Before this court, the Children's Lawyer is simply making the same arguments that the Adjudicator rejected.
[68] The Children's Lawyer argues that she cannot comply with the Adjudicator’s Order without disclosing the records to MAG and states that this would be a breach of solicitor-client privilege. This would contravene the duty to maintain confidentiality of the client's files and would be a breach of the Rules of Professional Conduct.
[69] The Children's Lawyer argues that FIPPA does not explicitly authorize the Children's Lawyer to breach solicitor-client privilege and the Adjudicator’s decision implies that this can be done. Further, she states that solicitor-client privilege is a fundamental policy of law that cannot be abrogated by inference in the legislation.
[70] The importance of solicitor-client privilege is not disputed. However, I see no basis for concluding that compliance with the Adjudicator’s Order would require the Children's Lawyer to disclose records protected by solicitor-client privilege. The Adjudicator simply ordered MAG to issue an access decision.
[71] As the Adjudicator explained, the head of MAG signed a Delegation of Authority that gives the Children's Lawyer the power and authority to make all access decisions regarding the Children's Lawyer's records. This process does not require the Children's Lawyer to release privileged documents to MAG. For over two decades, the Children's Lawyer has responded to requests for records under FIPPA and has made the access decisions. There is no evidence that the Delegation of Authority has ever interfered with solicitor-client privilege.
[72] The importance of solicitor-client privilege is recognized in s. 19 (1) of FIPPA where it is specified as a ground for refusing to disclose a record. The Adjudicator recognized this fact when she stated that the Children's Lawyer's confidentiality concerns could be addressed through the FIPPA exemptions.
[73] It is important to remember that many of the records that the Requester seeks are not subject to solicitor-client privilege. Therefore, the alleged untenable situation is not relevant to much of the request and yet the Children's Lawyer refused to respond to the entire request.
[74] The Children's Lawyer also argues that compliance with the Adjudicator’s Order creates an intolerable conflict of interest. The duty to a client requires an undivided loyalty to the client's interests. The Children's Lawyer states that the duty of loyalty precludes her from balancing the interests of the Requester (with whom the child client may have an adverse interest) and the interests of the public. This ground of appeal is simply a repetition of the argument that the Children's Lawyer made before the Adjudicator.
[75] The Children's Lawyer argues that her position is supported by Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner) (2003), 2003 72347 (ON SCDC), 66 O.R. (3d) 692 (Div. Ct.). I disagree. This case was raised before the Adjudicator. It is clearly distinguishable on the facts. In this 2003 decision, the Children's Lawyer had acted for a minor in litigation. When the minor client reached the age of majority, she asked the Children's Lawyer for her files because she was dissatisfied with the representation that the Children's Lawyer had provided. The Children's Lawyer treated the request as one made under FIPPA. The court questioned why the client's request was diverted into the FIPPA regime. This was not explained to the court. Relying on the solicitor-client privilege exemption under s. 19(1) of FIPPA, the Children's Lawyer refused to release the files to the client. The Court found that the Children's Lawyer could not use s. 19(1) to justify the refusal to release records to the client. This was the focus of the case. It does not assist the Children's Lawyer on this judicial review application.
[76] The Adjudicator stated that while the Children's Lawyer argued that the delegation of authority created an intolerable conflict, no examples were provided. The Adjudicator reasonably noted that since the Children's Lawyer has made the access decisions for over two decades, one would expect there to be some examples of conflict, if the Delegation of Authority actually created a conflict.
[77] In summary, the Adjudicator fully considered the alleged untenable situations. Her decision which is reviewed above is justified, transparent and intelligible.
The Statutory Interpretation of s. 10(1)
[78] The Children's Lawyer argues that the Adjudicator erred in her interpretation of "in the custody or under that control of" in s. 10(1). Specifically, the Children's Lawyer states that the Adjudicator did not follow the guiding principle of statutory interpretation, that the "words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at p. 41 (quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[79] The Children's Lawyer raises three points to support this argument: first that the Adjudicator’s analysis does not "comply with the text of FIPPA"; second, that the Adjudicator’s interpretation of s. 10(1) frustrates the scheme of FIPPA; third, that the interpretation does not promote the purpose of access to information. For reasons set out below, I reject these arguments.
1. The analysis complies with FIPPA
[80] The Children's Lawyer argues that the Adjudicator’s analysis does not comply with the text of FIPPA because she improperly focused on whether the Children's Lawyer has custody or control of the records. The Children's Lawyer states that the focus should have been on MAG and not the Children's Lawyer because the public has a right of access to records under the custody or control of named institutions, in this case, MAG. Since the Children's Lawyer is not a named institution, she argues that the Adjudicator’s analysis was wrong and this resulted in a flawed decision.
[81] There is no merit to this argument. The Adjudicator’s consideration of s. 10(1) was consistent with the text of FIPPA and the facts.
[82] The Children's Lawyer is part of MAG. As the Adjudicator stated in her decision, the office of the Children's Lawyer is a branch of MAG. The Children's Lawyer operates within the formal structure of MAG, within the Victims and Vulnerable Persons Division. Further, the head of MAG delegated the authority to the Children's Lawyer to make all access decisions concerning the Children's Lawyer's records. Section 62(1) of FIPPA gave the head of MAG the power to delegate this authority. These facts were not disputed.
[83] Given this context, it was not unreasonable for the Adjudicator to focus on the Children's Lawyer when she considered the application of s. 10(1). To do otherwise would have been contrary to the facts and the statutory framework of FIPPA.
2. The Adjudicator’s interpretation of s. 10(1) does not frustrate the scheme of FIPPA
[84] The second point is connected to the first point. The Children's Lawyer argues that because the Adjudicator’s analysis of s. 10(1) improperly focused on the Children's Lawyer, this resulted in an interpretation of s. 10(1) that frustrates the scheme of FIPPA.
[85] The Children's Lawyer explained why the scheme of the Act is frustrated. She states that FIPPA designates the head of the institution as the person responsible for compliance with the Act and, in particular, making all access decisions. The decision frustrates the scheme of FIPPA because MAG has no authority to compel the Children's Lawyer to produce records. Therefore, MAG cannot make the access decision. Finally, the Children's Lawyer states that FIPPA only operates coherently when the head of an institution has the power to obtain and review a record and decide whether or not it will be disclosed.
[86] With respect, this argument is divorced from the facts and specifically the Delegation of Authority that the head of MAG gave the Children's Lawyer years ago. The Adjudicator set out the facts and many were not contested. She applied the facts to s. 10 (1) and reached a reasonable decision that does not frustrate the scheme of FIPPA. To the contrary, the decision recognizes the scheme of the Act that allows delegation of authority to make access decisions and the ability to refuse access when a record is protected by solicitor-client privilege.
3. The Adjudicator’s interpretation promotes the purpose of access to information
[87] The Children's Lawyer’s third point can be summarized as follows. The records in question are the "personal litigation records of children" and providing a parent with access to these records does nothing to promote the purposes of FIPPA.
[88] Section 1 of FIPPA sets out the purpose of the Act:
(a) to provide a right of access to information under the control of institutions in accordance with the principles that,
(i) information should be available to the public,
(ii) necessary exemptions from the right of access should be limited and specific, and
(iii) decisions on the disclosure of government information should be reviewed independently of government; and
(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.
[89] The Adjudicator considered the purposes of FIPPA. She stated that in determining whether records are in the custody or control of an institution, the relevant factors "must be considered contextually in light of the purpose of the legislation". This is exactly what the Adjudicator did.
[90] The Adjudicator addressed the Children's Lawyer's argument that disclosure of the records would not serve "any public policy purpose". At para. 65 the Adjudicator stated:
I wish to address the [Children's Lawyer's] submission that providing public access to children's private litigation files serves no public policy purpose, such as enabling citizens to participate in democracy. This submission ignores the other "overarching" public policy purpose served by access to information legislation which is "to ensure … that politicians and bureaucrats remain accountable to the citizenry." Without expressing a view on the merits of his beliefs, I observe that the appellant's representations reflect concerns about accountability of the [Children's Lawyer] and/or its agents.
[91] The Adjudicator went on to state at para. 66 that the Children's Lawyer's argument was "misplaced, to the extent that it seeks to create an exclusion from the Act that the Legislature itself has not enacted." Further, the Adjudicator explained:
- … The Legislature deemed it appropriate to define the scope of the Act with reference to the records held by "institutions", subject to specifically delineated exclusions. It could have explicitly excluded the [Children's Lawyer], as a branch of the ministry, from the Act, or explicitly excluded some of the records of the [Children's Lawyer]. I also observe that the Legislature could have enacted an overriding confidentiality provision covering categories of the [Children's Lawyer's] records, as it has done in other cases.
[92] One of the "other cases" that the Adjudicator referred to in para. 66 are the records covered by s. 89 of the Legal Aid Services Act, 1998, S.O. 1998, c. 26 (i.e. communications between legal aid lawyers and their clients).
[93] Finally, I note that the Public Guardian and Trustee (the "PGT"), like the Children's Lawyer, is subject to FIPPA. The PGT acts as a litigation guardian or legal representative of individuals who lack sufficient capacity to properly instruct a lawyer. There is no debate that the PGT's records are subject to the FIPPA and its designated "head" is MAG.
[94] In summary, I reject the above arguments that the Adjudicator’s interpretation of s. 10(1) was in any way flawed.
The Adjudicator reasonably considered the Custody and Control Factors
[95] There are numerous factors that may be relevant when assessing if an institution has custody or control over a record under s. 10(1) of FIPPA. The Adjudicator listed the factors in paras. 13-16 of her decision. They may not all apply in a given case.
[96] The Children's Lawyer does not take issue with the list of factors, but rather how the Adjudicator applied the factors in this case. The Children's Lawyer argues that when the Adjudicator considered the factors, she failed to accept that MAG and the Children's Lawyer are separate entities and this resulted in a flawed assessment of the factors.
[97] To address the Children's Lawyer's argument, I will consider two factors as an example:
• Was the record created by an officer or employee of the institution?
• What use did the creator intend to make of the record?
[98] The Children's Lawyer argues that she created the records and they were not created for or on behalf of MAG. Turning to the second factor, the Children's Lawyer states the records were created solely for use in the custody and access litigation. The records were created on behalf of the child and were not created for MAG's use.
[99] The Children's Lawyer states that if each relevant factor is considered, with the acceptance that MAG and the Children's Lawyer are separate entitles, this will demonstrate that the records are not in the custody or under the control of MAG.
[100] This ground of review fails. As I have already explained above, the Adjudicator rejected the Children's Lawyer's argument that "while it is 'part of' the ministry for the purposes of the Act with respect to some of its records, it is not 'part of' the ministry for others", specifically when it appoints counsel for a child under s. 89(1) of the Courts of Justice Act. The Adjudicator found no "factual or legal support for such a conclusion" (paras. 58-59). Further, I repeat that the Adjudicator explained at para. 61 why the Children's Lawyer's position is contrary to FIPPA.
[101] The Adjudicator applied the relevant factors in a way that was consistent with the facts and FIPPA. This was clearly explained in her reasons that are transparent and justifiable.
The Current Case Law
[102] The Children's Lawyer argues that the Adjudicator’s decision is not consistent with the recent decision in Fontaine v. Canada (Attorney General), 2016 ONCA 241 ("Fontaine"). Fontaine was released after the Adjudicator’s decision. The decision in Fontaine is distinguishable on the facts and does not affect the reasonableness of the Adjudicator’s decision.
[103] In Fontaine, the court considered, among other things, whether certain records that the Indian Residential Schools Adjudication Secretariat (the "Secretariat") held, were within the control of the federal department of Aboriginal Affairs and Northern Development Canada ("AANDC").
[104] By way of background, the Secretariat was created as part of the settlement of class proceedings arising from the residential schools (the Indian Residential Schools Settlement Agreement or "IRSSA"). The IRSSA provides for an Independent Assessment Process (the "IAP") to compensate survivors who suffered sexual abuse, physical abuse or serious psychological harm at residential schools.
[105] The IAP allows a survivor to apply for additional compensation above the minimum given to class members. The Secretariat adjudicates the claims through oral and other evidence.
[106] The federal government is a defendant in each IAP, responsible for paying compensation awarded under the IAP, and represented through AANDC lawyers who, in some cases, challenged IAP claims on behalf of the Government of Canada. After receiving all the evidence in a given IAP claim, an adjudicator of the Secretariat releases a decision, awarding compensation in appropriate cases. Residential schools survivors were given assurances of the confidentiality of the IAP process.
[107] Within the IAP process, highly confidential documents are created: survivors' application forms, the written and audio records of their own evidence about their abuse and suffering and the compensation decisions written about their claims by the adjudicators ("IAP Documents").
[108] A dispute arose over whether the IAP documents should be archived or destroyed and who controlled the documents for the purpose of making the decision.
[109] The Court of Appeal found that the IAP was formally structured under AANDC because the parties to the IRSSA recognized that the federal government's administrative infrastructure was required to implement that settlement. However, the IAP was not a federal government program. Rather, the IAP was overseen by the court through the Chief Adjudicator of the Secretariat, who is a court-appointed officer. In essence, the Secretariat was performing a court-like role, adjudicating mini-trials for compensation arising from the IRSSA.
[110] The fundamental difference between the Secretariat and the Children's Lawyer is that the Secretariat performs a judicial function. As the Court stated in Fontaine at para. 180"[t]he Secretariat, overseen by the Chief Adjudicator, enjoys significant, judicially-mandated and judicially-protected independence from AANDC for the administration of the IAP. IAP Documents in its possession are simply not under the control of AANDC."
[111] Although Fontaine was not before the Adjudicator, the Children's Lawyer sought to compare the judiciary with the Children's Lawyer when considering the concept of control. The Adjudicator rejected this comparison at para. 60 as follows:
The [Children's Lawyer] is unlike the judiciary, which has a separate existence and constitutionally distinct function from the ministry. It is also unlike the Judicial Appointments Committee considered in Walmsley, above, in that the Committee under consideration in Walmsley consisted of individuals who were neither employees nor officers of the ministry and whose role was to provide arms-length advice directly to the Attorney General independent of the Ministry.
[112] In contrast to the facts in Fontaine, the Children's Lawyer does not hold itself out to be independent of MAG. It does not have its own website. Rather, it has a section in MAG’s website, where the Children's Lawyer is described as "a law office of the Ministry of the Attorney General". Letters from the Children's Lawyer are sent on MAG's letterhead. Employees who work at the Children's Lawyer's office are employed by MAG. The Children's Lawyer's mail is delivered through the Ministry of Government Services mail delivery system. The Children's Lawyer has advised parties, including the Requester that information provided to the Children's Lawyer is subject to FIPPA. Lastly, under the Delegation of Authority, the Children's Lawyer has operated on the basis that it is part of MAG and subject to FIPPA for over two decades.
[113] In summary, Fontaine is distinguishable from the facts that the Adjudicator relied upon and is not a basis upon which to question the reasonableness of the Adjudicator’s decision.
conclusion
[114] The application for judicial review is dismissed.
[115] The parties have agreed that there shall be no costs order.
_________________________ C. Horkins J.
I agree:
Swinton J.
I agree:
Emery J.
Released: February 2, 2017
CITATION: Children's Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2017 ONSC 642
DIVISIONAL COURT FILE NO.: 443/15 DATE: 20170202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, C. HORKINS & EMERY JJ.
BETWEEN:
CHILDREN'S LAWYER FOR ONTARIO
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, THE ATTORNEY GENERAL FOR ONTARIO and JOHN DOE, REQUESTER
Respondents
REASONS FOR JUDGMENT
C. Horkins J.
Released: February 2, 2017