Court File and Parties
CITATION: Carling (Township) v. Ontario (Information and Privacy Commissioner), 2024 ONSC 3297
DIVISIONAL COURT FILE NO.: 189/23-JR
DATE: 2024/06/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Myers and Sheard JJ.
BETWEEN:
Township of Carling Applicant
– and –
Information and Privacy Commissioner of Ontario and Elisabeth McWalter Respondents
COUNSEL:
Sylvain Rouleau and Kelin Algayer, for the Applicant
James Schneider and Linda Chen, for the Respondent, Information and Privacy Commissioner of Ontario
Elisabeth McWalter, Self-Represented
HEARD at Toronto: March 21, 2024
REASONS FOR JUDGMENT
L Sheard J.
I. Introduction
[1] The Respondent, Elisabeth McWalter (“Requester”), submitted a request under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended, (the “Act”). The Requester asked for copies of the employment contracts of the Chief Administrative Officer (CAO), Chief Building Official (CBO), the planner, and the treasurer of the Township of Carling (the “Township”). In particular, she was seeking copies of the clauses relating to termination or severance.
[2] The Township withheld disclosure of the information, relying upon the mandatory personal privacy exemption set out at s. 14 (1) of the Act. The Requester appealed the Township’s decision to the Information and Privacy Commissioner of Ontario (the “IPC”).
[3] The IPC is responsible for overseeing the Act. Section 1 of the Act sets out its two purposes: 1) to provide the public with access to information under the control of public institutions, in accordance with certain stated principles and subject to limited exemptions; and, 2) to protect the privacy of individuals with respect to personal information about themselves held by institutions.
[4] By Order MO-4335, dated February 22, 2023 (the “Order”), Adjudicator Lan An determined that some, but not all, of the requested information was “personal information” as defined under s. 14(1) of the Act.
[5] Section 14(1) requires institutions to withhold personal information unless an exception applies. The relevant exemption is s. 14(1)(f), which permits disclosure of personal information if the disclosure does not constitute an “unjustified invasion of personal privacy”.
[6] Section s. 14(4)(a) provides that disclosure does not constitute an unjustified invasion of personal property if it “discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution” (emphasis added).
[7] The Adjudicator concluded that the information relating to termination or severance constituted “benefits” and was subject to the exemption in s. 14(4)(a) of the Act. On that basis, the Adjudicator issued the Order, requiring the Township to disclose the requested information to the Requester.
[8] The Township brings this application for judicial review of the Order.
[9] On its appeal before the IPC and on this application, the Township submits that in past decisions, the IPC has determined that information concerning retirement packages or severance agreements negotiated at the end of the employment relationship to be personal information and not “benefits” whereas termination entitlements negotiated as part of an initial employment agreement are “benefits” and ought to be disclosed pursuant to the s. 14(4)(a) exemption.
[10] The Township submits that the IPC jurisprudence has created an artificial distinction based on when the entitlement is negotiated rather than the nature of the employment benefit or entitlement, which requires the intervention of this court.
[11] For the reasons below, I would dismiss the judicial review application.
II. Factual background
[12] By letter of December 11, 2020, the Township denied the Requester’s request for production of the termination clauses contained in the Township’s employment contracts with its CAO, CBO, planner, and treasurer.
[13] The Requester’s appeal to the IPC proceeded to the adjudication stage of the appeal process, where an adjudicator may conduct an inquiry under the Act.
[14] During the inquiry, the Township, the Requester and the four affected parties [employees] were invited to provide representations. Representations were made by the Township, the Requester and two of the affected parties. The two affected parties who made representations stated that they did not consent to the disclosure of any personal information or their employment contracts.
[15] The appeal was subsequently transferred to Adjudicator An, who reviewed the representations and proceeded to make the Order.
Statutory Framework
[16] Section 2(1)(a) to (h) of the Act defines “personal information” to mean “recorded information about an identifiable individual, including,” information relating to the individual’s history.
[17] Section 14(1) of the Act directs that a request for disclosure of “personal information” shall be refused except if the disclosure falls within the exemptions listed at ss. 14(1) (a) to (f). The exemption at s. 14(1)(f) is “if the disclosure does not constitute an unjustified invasion of personal privacy”.
[18] Section 14(2) sets out the criteria to be considered in determining whether a disclosure of personal information constitutes “an unjustified invasion of personal privacy”.
[19] Section 14(3) of the Act reads as follows:
Presumed invasion of privacy
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if 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.
[20] Section 14(4) of the Act creates exemptions to s. 14(3). It reads as follows:
(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;
(b) discloses financial or other details of a contract for personal services between an individual and an institution; or
(c) 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.
The Township’s Position
[21] On its appeal to the IPC, the Township argued that the information requested contained “personal information”. The Township relied on IPC Order MO-2478 in which the adjudicator had found that an “individual’s future entitlements, such as severance and retirement benefits” constituted employment history for the purposes of s. 2(1) and/or s. 14(3)(d) of the Act.
[22] The Township’s position before the IPC and on this application, is that in determining whether information is a benefit and disclosable, the IPC jurisprudence has created an “absurd and unreasonable distinction” between information contained in early retirement packages or severance agreements that were negotiated at the end of an employment relationship, which have been treated as “personal information” but not “benefits, and, therefore, not subject to disclosure under the Act, and entitlements arising upon termination or severance, negotiated as part of the employee’s employment agreement, which are treated as “benefits” and, as such, subject to disclosure.
[23] The Township submits that it is “illogical, irrational and lacks common sense” to determine whether personal information relating to early retirement packages or severance agreements is protected from disclosure on the basis of timing: that is, if negotiated after termination, disclosure of the information is considered to be an unjustified invasion of personal privacy under s. 14(3), but if negotiated as part of the employee’s employment contract, disclosure of the information falls under the s. 14(1)(f) exceptions, and does not constitute an unjustified invasion of personal privacy.
[24] The Township submits that the disclosure of this information is “an unjustified invasion of personal privacy” and that, if termination clauses are disclosed, confidential and private employee information will become publicly available, which will have a “ripple effect” in small, rural municipalities and may cause employees to “leave their positions and enter private sector roles, where their termination and severance agreements would not be the subject of public scrutiny.”
The IPC’s Position
[25] On this application, the IPC submits that the central issue in dispute “is the reasonableness of the Adjudicator’s finding that severance entitlements provisions contained in four contracts of employment constituted ‘benefits’ of employment”, such that they are subject to s. 14(4)(a) of the Act and “the personal privacy exemption in s. 14(1) cannot apply to exempt this information from disclosure”.
[26] The IPC agrees with the conclusions reached by Adjudicator An, who rejected the interpretation that the Township sought to give to s. (14)(a), noting that such an interpretation could go beyond severance entitlements and could include other entitlements found in employment contracts that only become effective postemployment such as, for example, “death and pension benefits.”[^1]
[27] The IPC submits that in finding such entitlements to be a form of “benefit” under s. 14(4)(a), Adjudicator An “followed and adopted the reasons from previous orders of the IPC, namely Order M-23[^2] and Order MO 4060.”[^3] In Order MO-4060, the Adjudicator adopted the reasoning in Order M-23 “that ‘benefits’ should be given a fairly expansive interpretation as ‘benefits’ are being paid from the public purse.”[^4]
Position of Requester
[28] In her submissions before this court, the Requester submitted that there is a valid public interest in the disclosure of the severance provisions of the affected parties’ employment contracts as the severances must be funded by local taxpayers, who have a right to understand their exposure to future costs and obligations arising from such contracts.
[29] The Requester submits that disclosure is a core purpose of the Act and that even if this court were to determine that Adjudicator An erred in concluding that s. 14(4) applies, disclosure ought to be made pursuant to s. 16 of the Act, which directs that an exemption from disclosure does not apply “if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.”
The Order
[30] In the Order, Adjudicator An determined that:
“the termination entitlements derived from the original employment with the affected parties”;
they constituted “benefits” for the purposes of s. 14(4)(a) of the Act; and
s. 14(4)(a) of the Act applied to this personal information; and
under s. 14(1)(f) of the Act, its disclosure was not considered to be an unjustified invasion of personal privacy and, as a result, the s. 14(1) exemption [to disclosure] did not apply and the Township was ordered to disclose the requested information: Order, at paras. 45-46.
[31] Adjudicator An found that the subject termination clauses did contain personal information relating to the financial arrangements of the employees’ departure from the Township which qualified “as their personal information within the meaning of paragraphs (b) and (h) of the definition of personal information in section 2 (1) of the Act”.
[32] Adjudicator An disagreed with the Township’s interpretation of the IPC jurisprudence, and disagreed with the Township’s submission that in the decisions it cited, Order M-23 and MO-1332, the IPC had concluded that benefits, which only become effective after termination has occurred, do not constitute a “benefit.” The Adjudicator noted that in Order M-23, Commissioner Wright stated that benefits included “sick leave, vacation, leaves of absence, termination allowance, death and pension benefits” – the latter two of which are entitlements received only after employment has ended.
[33] With respect to Order MO-1332, Adjudicator An noted that Assistant Commissioner Liang concluded that the benefits were negotiated as part of an early retirement package and, as such, “instead of being benefits “received as a result of being employed” by the City, they are benefits received as a result of having employment terminated…”: Order, at para. 44.
[34] Adjudicator An also found that the earlier IPC decisions were distinguishable from the current appeal because the termination entitlements in those cases did not derive from the original contract of employment.: Order, at para. 45.
III. Issues to be determined
[35] The Township identifies two issues for judicial review:
(a) Were the Adjudicator’s reasons adequate?
(b) Was the Adjudicator’s decision reasonable?
IV. Jurisdiction and standard of review
[36] The parties agree that the applicable standard of review is reasonableness. The following general principles to be applied in determining reasonableness are found in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), which provides that:
(a) a reviewing court must ask whether the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision (at para. 99);
(b) [T]he burden is on the party challenging the decision to show that it is unreasonable…. The reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. The court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable” (at para. 100);
(c) [T]he role of courts … is to review, and…as a general rule to refrain from deciding the issues themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempted to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem…Instead, the reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable (at para. 83); and
(d) to be reasonable, a decision must be based on reasoning that is both rational and logical” (at para. 101).
V. Analysis
Issue #1: Were the Adjudicator’s reasons adequate?
[37] The Township submits that Adjudicator An’s reasons were inadequate, submitting that the Adjudicator failed to respond to the Township’s submissions and arguments.
[38] I disagree.
[39] As noted in Vavilov, “reviewing courts cannot expect administrative decision makers to ‘respond to every argument or line of possible analysis’ but a failure to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” (at para. 128)
[40] The Order identifies the position taken by the Township, considers its submissions, including its reference to previous IPC decisions, and provides a detailed and cogent explanation for the conclusions reached by Adjudicator An.
[41] For example, the Adjudicator considers, and rejects, the Requester’s submissions that the termination clauses at issue do not contain personal information as defined under s. 2 of the Act. The Adjudicator accepts the submissions made by the Township that the termination clauses do contain personal information of identifiable individuals concerning financial arrangements related to the employees’ departure from the Township which, the Adjudicator found, qualified as personal information within the meaning of paras. (b) and (h) of the definition of personal information under s. 2(1) of the Act: Order, at paras. 25, 26).
[42] The Adjudicator notes that the Township conceded that portions of the contracts did not contain personal information but submitted that disclosing that information would serve no meaningful purpose. The Adjudicator considered the Township’s submissions and concluded that only personal information could be withheld under s. 14(1) and, in the absence of any other grounds raised by the Township, ordered disclosure of those subsections that contained no personal information.
[43] The Adjudicator went on to consider whether the mandatory personal privacy exemption under s. 14 (1)(f) applied to the information at issue and, if so, whether the exceptions under s. 14 (4) applied.
[44] As noted above, the Adjudicator did consider the Township’s submissions concerning the interpretation given in other IPC decisions – Order M-23 and Order MO-1332 – and found those cases to be distinguishable. The Adjudicator did not accept the Township’s argument that benefits that only become effective after termination do not constitute a benefit: Order, at paras. 40-42.
[45] In my view, the Adjudicator identified and did “meaningfully grapple with key issues and central arguments raised by the parties.”
Issue #2: Was the Adjudicator’s decision reasonable?
[46] The Adjudicator gave reasons for rejecting the Township’s argument that for s. 14 (4)(a) to be triggered, the salary and benefits need to be set out in the same clause. The Adjudicator referenced Order M-23, which found that although the salary range was in one clause and the benefits in a different clause, both were subject to the provisions of s. 14(4)(a): Order, at para 43.
[47] The Adjudicator specifically considered the purpose of the Act, which included providing transparency about monies being paid from the public purse.
[48] Before the Adjudicator, and on this application, the Township seeks an interpretation that other IPC orders have created an “absurd” distinction between benefits negotiated in the context of an employment agreement and those derived from negotiations following termination. The Adjudicator did not accept those submissions.
[49] The Adjudicator rejected the Township’s allegation that different treatment was given to benefits in previous IPC decisions based on the timing of the contract negotiation. The Adjudicator concluded that it was the nature of the contract being negotiated – one dealing with a contract of employment and the other dealing with a contract following the termination of employment – that explained why termination entitlements were found not to be benefits in other IPC decisions.
[50] It is not for this court to review other IPC decisions, with which the Township takes issue. Rather, it is for this court to consider whether, in this case, the Adjudicator has acted reasonably.
[51] I see nothing unreasonable in the conclusions reached by the Adjudicator. Those conclusions are based on internally coherent reasoning and bear the hallmarks of reasonableness. Applying the principles set out in Vavilov, I find that the Adjudicator’s reasons were justifiable, transparent and intelligible; the Adjudicator considered the purposes of the Act, and, based on the facts presented, how the conclusions in the Order were reached.
V. Disposition
[52] For the reasons set out, I would dismiss the application for judicial review.
[53] As agreed by the parties, no costs are awarded.
Sheard J.
I agree _______________________________
Lococo J.
I agree _______________________________
Myers J.
Released: June 12, 2024
CITATION: Carling (Township) v. Ontario (Information and Privacy Commissioner), 2024 ONSC 3297
DIVISIONAL COURT FILE NO.: 189/23-JR
DATE: 2024/06/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Myers and Sheard JJ.
BETWEEN:
TOWNSHIP OF CARLING
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO and ELISABETH MCWALTER
Respondents
REASONS FOR JUDGMENT
L. SHEARD J.
Released: June 12, 2024
[^1]: Order MO-4335 at para. 41. [^2]: Gravenhurst (Town) (Re), 1992 4255 (Ont. I.P.C.) [^3]: Tay Valley Township (Re), 2021 52049 (Ont. I.P.C.) [^4]: Order MO-4335 at para. 41.