Court File and Parties
CITATION: LifeLabs LP v. Information and Privacy Commr. (Ontario), 2022 ONSC 5751
DIVISIONAL COURT FILE NO.: 053/21
DATE: 20221011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
LIFELABS LP
Alexandra E. Cocks, Gillian P. Kerr and Amanda d. Iarusso, for the Applicants
Applicant/Moving Party
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
Linda Hsiao-Chia Chen, for the Respondent and as agent for IPC (BC)
Respondent/Responding Party
Shahana Kar, for AG Ontario
Catherine J. Boies Parker, for IPC (BC)
HEARD at Toronto (by videoconference): January 21, 2022
REASONS FOR DECISION
D.L. Corbett J.
[1] This case concerns investigations by the Privacy Commissioners of Ontario and British Columbia into alleged unauthorized disclosure of personal information stored on computer systems of the applicant, LifeLabs LP, as a result of an alleged criminal cyber-attack. Most affected LifeLabs customers reside in either Ontario or British Columbia.
[2] In the wake of the cyber-attack, LifeLabs had to respond to inquiries from federal, provincial and territorial privacy commissioners across Canada and to respond to eleven proposed class proceedings in Ontario and British Columbia.
[3] LifeLabs reported the disclosure of personal information to the privacy commissioners of Ontario and British Columbia, as it was required to do. Both of these commissioners launched investigations. In the course of these investigations, both commissioners required LifeLabs to produce various documents. LifeLabs produced some of these documents but declined to produce other documents on the basis that the documents are privileged. Two bases of privilege were asserted: litigation privilege and solicitor-client privilege.
[4] By decision dated March 30, 2020, Ontario IPC ordered LifeLabs to produce documents over which LifeLabs asserts claims of privilege (ReLifeLabs LP, 2020 24923 (PHIPA Decision 114)). LifeLabs produced documents in accordance with the production order, while asserting claims of both confidentiality and privilege in respect to the documents.
[5] On May 19, 2020, the Commissioners issued a joint "request for representations" to LifeLabs about information the Commissioners proposed to include in their final investigation report. On June 9, 2020, LifeLabs provided written submissions including argument that certain documents over which claims of confidentiality and privilege were asserted should not be included in the public version of the final investigation report. These submissions were supported by a sworn declaration from a lawyer, LifeLabs interim General Counsel, explaining the basis of LifeLabs' claims of privilege and confidentiality.
[6] On June 25, 2020, the Commissioners released a "Joint Privilege Decision" and a "Joint Investigation Report". In the Joint Privilege Decision, the Commissioners rejected all of LifeLabs' claims of privilege and confidentiality.
[7] LifeLabs commenced applications for judicial review of the Joint Privilege Decision in both Ontario and British Columbia.
Issues on the Application in this Court
[8] In its factum on this motion, LifeLabs describes the issues on the application as follows:
The Joint Privilege Decision was the product of an unfair process, including;
(i) unprecedented and improper collaboration between the Ontario IPC and the BC IPC;
(ii) unreasonable order requiring LifeLabs to produce confidential and privileged documents without a hearing or an opportunity to respond to the order;
(iii) unreasonable and unnecessarily expedited timelines for responses from LifeLabs;
(iv) a decision based on irrelevant considerations including the impending retirement of the Ontario IPC; and
(v) rejection of LifeLabs' evidence about privilege and confidentiality "without affording… a fair opportunity to respond."
There are other issues raised in the Notice of Application – such as a challenge to the jurisdiction of the Commissioner to decide questions of privilege – but I proceed on the basis that the relief claimed on this motion is based on the grounds for the application that are referenced in the factum and were raised during oral argument. In other words, I decide this motion on the basis on which it was argued.
[9] LifeLabs takes the position that, in addition to the Record of Decision produced by the Commissioner, it requires additional disclosure from the Commissioner for the purposes of this application, including:
(a) any documents, including background policies and internal memoranda, that governed the decision-making process of the Ontario IPC resulting in the Joint Privilege Decision;
(b) the documents that the Ontario IPC considered and generated during the decision-making process of the Ontario IPC resulting in the Joint Privilege Decision;
(c) all correspondence, including with the BC OIPC, about the decision-making process for the Joint Privilege Decision and/or about the drafting and content of the Joint Privilege Decision; and
(d) all correspondence, including with the BC OIPC, relating to the timing of the Joint Privilege Decision, and the timing of the release of the Joint Investigation Report.
[10] The Ontario Commissioner takes the position that none of the requested documents ought to be ordered produced as part of the record of Decision in this case because all of the requested documents are protected from compelled disclosure by (a) solicitor-client privilege; (b) common interest privilege; and/or (c) adjudicative privilege (sometimes called "deliberative secrecy").
[11] For the reasons that follow, the motion is dismissed. The requested documents are not properly part of the Record before this court. All are protected by deliberative privilege.
Analysis
The Record of Proceedings
[12] Section 10 of the Judicial Review Procedure Act (the "JRPA") provides:
When a notice of application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.[^1]
The JRPA is silent on what is included in the "record of proceedings."
[13] "An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court."[^2] For some tribunals, the required content of the record is specified in the Statutory Powers Procedure Act (the "SPPA").[^3] However, these requirements do not apply in this case: proceedings before the Commissioner are not ones "where the tribunal is required… to afford the parties to the proceeding an opportunity for a hearing before making a decision."[^4]
[14] The "record" then, in this case, is a matter of common law. About seventy years ago, Lord Denning stated that the record "has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings…. [It] must contain at least the document which initiates the proceedings."[^5] By way of analogy to a trial in a court of record, the record should contain the pleadings or analogous documents, the evidence that was before the decision-maker, and transcripts (if oral evidence was taken and recorded for purposes of transcription). This court may insist upon production of an adequate record for purposes of review, and this court has the power to order the decisionmaker below to complete the record.[^6]
Deliberative Privilege
[15] Sitting as a single judge of this court, Perrell J. reviewed principles of deliberative secrecy (or adjudicative privilege) as follows:
[76] Under the doctrine or principle of deliberative secrecy, which promotes adjudicative independence, collegial debate, and the finality of decisions, a judge or an administrative tribunal adjudicator cannot be compelled to testify about the deliberations or the substance of the decision-making process or how or why a particular decision was reached by the court or administrative tribunal: Re Clendenning and Board of Police Com'rs for City of Belleville (1976), 1976 696 (ON SC), 15 O.R. (2d) 97 (Div. Ct.); Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (H.C.J.); 156621 Canada Ltd. v. The City of Ottawa (2004), 70 O.R. (3d) 291 (S.C.J.).
[77] The substance of the decision-making process includes what material was considered or not considered by the adjudicator, whether the adjudicator pre-judged the matter, and the extent to which the adjudicator was influenced by the views of others: Agnew v. Ontario Association of Architects, supra, at p. 17.
[78] Deliberative secrecy would cover the involvement of independent counsel unless there was good reason and a factual foundation to believe that counsel transgressed the limits of fairness and natural justice: Rudinskas v. College of Physican and Surgeons of Ontario, 2011 ONSC 4819(Div. Ct.); Aronov v. Royal College of Dental Surgeons of Canada, [2001] O.J. No. 1927 (Div. Ct.); Stevens v. Canada (Attorney General), 2003 FC 1259.
[79] Deliberative secrecy extends to the administrative aspects of the decision-making process, including the assignment of the adjudicator(s) to particular cases: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2007), 2007 NSCA 37, 282 D.L.R. (4th) 538 at paras. 15-18 (N.S.C.A.); Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952.
[80] Under the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), supra. In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra at para. 16, Cromwell, J.A., as he then was, noted that, although the principle of deliberative secrecy does not apply as strongly to administrative tribunals as to courts, the Supreme Court of Canada has confirmed that deliberative secrecy is the general rule for administrative tribunals.
[81] The testimonial immunity of deliberative secrecy for the administrative aspects of the decision-making process is not absolute and will yield where it is alleged that the right of natural justice has been infringed: Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952; Payne v. Ontario (Human Rights Commission) (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.).
[82] The testimonial immunity of deliberative secrecy can be lifted if a litigant can show clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice or procedural fairness: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra; Payne v. Ontario (Human Rights Commission), supra; Agnew v. Ontario Association of Architects), supra, at p. 15.[^7]
I accept and adopt this summary.
[16] In this case, LifeLabs argues that it has alleged breaches of natural justice and procedural fairness that ground its request for additional documents to complete the record. I do not accept this argument.
[17] The onus rests on the litigant seeking to displace adjudicative privilege and this onus is not discharged on the basis of speculation, conjecture or simple allegation alone: there must be a foundation before the court for the allegation that not only raises an issue of procedural fairness, but also justifies displacing the privilege in order to adjudicate the procedural fairness issue.[^8]
[18] I now consider the four categories of documents sought by LifeLabs in light of the principles set out above.
(a) any documents, including background policies and internal memoranda, that governed the decision-making process of the Ontario IPC resulting in the Joint Privilege Decision
[19] Narrowly construed, one document in this category has been produced by the Ontario IPC. That document is the PHIPA Code of Procedure, and in particular section 18 of this Code, which addresses claims of confidentiality for documents provided to the IPC during an investigation. This material was disclosed to LifeLabs during the investigation and may be properly included in the Record.[^9]
[20] LifeLabs has not identified any other documents or category of documents that "governed the decision-making process". During oral argument, reference was made to internal policy documents, precedents, memos to the IPC from staff, and other similar documents that were argued to be producible as part of the record. I reject this argument. By analogy, parties to an appeal are not entitled to a bench brief or memo written by a judicial law clerk, a standard benchbook, a list of textbooks available to the judge, or any other aspect of the internal processes at the court supporting the judge in doing her work. These are all covered by adjudicative privilege. Such documents do not "govern" the decision-making process, and they are well within the cone of adjudicative privilege. The PHIPA Code of Procedure, by contrast, is a code that contains principles that guide the decision and can be said to "govern" it, much in the same way the the Rules of Civil Procedure constrain and govern proceedings in court.
[21] No basis is stated to defeat adjudicative privilege in respect to this category of documents (other than the Code of Procedure). They would be irrelevant to the bases alleged for procedural unfairness (listed in para. 8, above).
(b) the documents that the Ontario IPC considered and generated during the decision-making process of the Ontario IPC resulting in the Joint Privilege Decision
[22] The record should include the evidence considered by the IPC. This would include submissions received by the IPC (which have been included in the record) and any other documents relied upon by the IPC to establish the facts upon which it based its decision. This would not include internal documents "generated" by IPC staff in reviewing documents relied upon to establish facts. Thus, if the IPC reviewed documents available on the internet and relied on those documents, or reviewed policies and reports from other Canadian privacy commissioners to establish the facts, those must be disclosed as part of the record. Staff analysis or reports on this research are not producible. The evidence on this motion is that all of the information gathered by the IPC's staff that was relied on to establish the facts has been disclosed by citation in the Privilege Decision.
(c) all correspondence, including with the BC OIPC, about the decision-making process for the Joint Privilege Decision and/or about the drafting and content of the Joint Privilege Decision
[23] LifeLabs takes the position that it was improper for the Ontario and BC Commissioners to engage in a joint process in this case. The Commissioners take a contrary position, and also argue that LifeLabs may not raise this issue on judicial review because they did not raise it during the proceedings below. Those are issues for decision by a panel of this court on the main application.
[24] LifeLabs' request for production of communications between the two Commissioners is premised on its argument that the joint decision-making process was unlawful or unfair. Assuming, without finding, that the joint decision-making process was lawful and fair, then this request, on its face, strikes at the heart of adjudicative privilege. It is akin to seeking communications between panel members of this court on an appeal of a decision of this court to the Court of Appeal.
[25] Until a court finds that the Commissioners should not have conducted a joint investigation, the impugned decisions are taken to be correct.
[26] If a panel of this court concludes that the impugned decision should not have been made by way of a process of joint investigation and decision-making, then that panel can consider what the appropriate remedy should be. Unless and until that happens, adjudicative privilege applies to this category of documents, and it is not defeated by an allegation that the process ought not to have been joint. Further, this decision should not be taken to imply that adjudicative privilege is lost if the two Commissioners should not have proceeded jointly: that issue, to the extent that it may need to be addressed, is a matter for the panel to decide.
(d) all correspondence, including with the BC OIPC, relating to the timing of the Joint Privilege Decision, and the timing of the release of the Joint Investigation Report.
[27] This request is a subset of the request in issue (c). It is denied for the same reasons request (c) was denied. It raises one additional point – allegations of procedural unfairness as a result of procedural decisions taken in this case allegedly because of the retirement date of the Ontario IPC.
[28] First, deadlines imposed, and the schedule followed, were either fair or unfair to LifeLabs. The Commissioner's retirement date would not justify imposing a schedule that was procedurally unfair.
[29] LifeLabs' argument seems to be that there was an oblique motive that coloured the process in this case. Real scheduling constraints faced by a decisionmaker are not oblique motives. Neither are they justifications for following a process that is unfair. The focus of the procedural unfairness argument, in this court, is on the process followed and its impact on the parties. This does not justify inquiring into internal constraints under which the decision-maker was operating.
[30] The Ontario IPC argues that LifeLabs' argument on this point is mere speculation. The retirement of the IPC is not speculation. Wondering whether it impacted scheduling decisions is speculative because LifeLabs cannot do more than speculate about this point without disclosure. I would not order the disclosure because, even if a pending retirement was a factor taken into account in setting a schedule, that would neither justify a process that was unfair to LifeLabs, nor would it render unfair a process that was, in substance, fair to LifeLabs. In other words, the pending retirement of the IPC is not, on its face, relevant to whether the process was fair to LifeLabs.
[31] Finally, I note LifeLabs' argument that the decision itself was "rushed". Alacrity of decision-making is not a reviewable ground in this court. Whether a process is fast or slow, the analysis in this court is on procedural fairness and substantive reasonableness.
Disposition
[32] For these reasons the motion is dismissed. As agreed by the parties, there shall be no order respecting costs.
[33] The parties are directed to provide this court by email by October 31, 2022, with their consent schedule for the balance of steps left to ready this application for hearing before the panel.
D.L. Corbett J.
Released: October 11, 2022
DIVISIONAL COURT FILE NO.: 053/21
DATE: 20221011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
LifeLabs LP
Applicant/Moving Party
- and -
Information and Privacy Commissioner (Ontario)
Respondent/Responding Party
REASONS FOR DECISION
D.L. Corbett J.
Released: October 11, 2022
[^1]: Judicial Review Procedure Act, RSO 1990, c. J.1, s.10. [^2]: Payne v. Ontario Human Rights Commission (2000), 2000 5731 (ON CA), 192 DLR (4th) 315, para. 161 (Ont. CA); Endicott v. Ontario (Director, Office of the Independent Police Review), 2014 ONCA 363, para. 44. [^3]: Statutory Powers Procedure Act, RSO 1990, c.S.22, s.20. [^4]: SPPA, s.3(1). [^5]: R. v. Northumberland Compensation Tribunal ex parte Shaw, [1952] 1 KB 338 ay 351-2 (Eng. CA); quoted with approval in Endicott v. Ontario (Director, Office of the Independent Police Review), 2014 ONCA 363, para. 43. [^6]: Payne v. Ontario Human Rights Commission (2000), 2000 5731 (ON CA), 192 DLR (4th) 315, para. 161 (Ont. CA), quoting with approval from R. v. Medical Appeal Tribunal, ex parte Gilmore, [1957] 1 QB 574 at 583 (Eng. CA), per Denning LJ. [^7]: Summit Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), paras. 76-82. [^8]: Payne v. Ontario (Human Rights Commission) (2000), 2000 5731 (ON CA), 192 DLR (4th) 315, para. 172 (Ont. CA); Tremblay v. Quebec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 SCR 952 at 966. [^9]: The Code is a public document, available on the IPC's web site.