Court File and Parties

BARRIE COURT FILE NO.: 16-0267 DATE: 20160519 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hydro One Networks Inc., Applicant AND: Ontario Provincial Police, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: R. Ryan, Counsel for the Applicant H. Evans, Counsel for the Respondent

HEARD: April 26, 2016

Endorsement

[1] Every year, Hydro One Networks Inc. (Hydro One) sustains damages to hydro poles and related equipment as a result of motor vehicle accidents. When its forces are involved, the Ontario Provincial Police (O.P.P.) collects and retains pertinent information about drivers in these accidents, pursuant to its obligations under the Highway Traffic Act, R.S.O. 1990, c. H.8. The novel question raised in this application is whether Hydro One is entitled to receive this information as of right from the O.P.P. upon request or whether it must bring an application each time this information is sought.

[2] Within this application, Hydro One seeks unredacted accident reports with respect to nine specific motor vehicle accidents. The O.P.P. does not oppose providing the unredacted information requested by Hydro One with respect to these specific accidents.

[3] The O.P.P. does object to a broad-based order that would require it to provide all future accident reports involving Hydro One. As the O.P.P. sets out in its Factum at para. 2:

The second type of relief sought in the application is a broad, future oriented order declaring that the O.P.P. is obliged to produce to Hydro One unredacted MVARs related to any future accident in the future in which Hydro One is a party suffering a loss. There is no temporal component in the order sought. The proposed order would require the O.P.P. to provide personal information to Hydro One and perpetuity, without regard for the circumstances of any particular accident.

The Position of Hydro One

[4] Hydro One relies on the mandatory disclosure obligations under the Highway Traffic Act. Section 200(1) of the Highway Traffic Act provides as follows:

200(1) Where an accident occurs on a highway, every person in charge of a vehicle or a street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

(b) render all possible assistance; and

(c) upon request, give in writing to anyone sustaining loss or injury, or to any police officer, or to any witness, his or her name, address, driver’s license number and jurisdiction of issuance, motor vehicle liability insurance policy, insurer and policy number, name and address of the registered owner of the vehicle, and the vehicle permit number.

[5] Thus, if the O.P.P. has jurisdiction where the accident occurred, it is required to collect and maintain this information.

Disclosure of Personal Information

[6] The O.P.P. submits that as the record-keeper of this information under the Highway Traffic Act, it is constrained by the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA) as to what information it may disclose, absent a court order. Section 21(3)(b) of the FIPPA provides as follows:

Presumed invasion of privacy

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that the disclosure is necessary to prosecute the violation or to continue the investigation.

Legal Analysis

[7] Unredacted police accident reports are often sought and obtained on consent, pursuant to the provisions of Rule 30(10). Such motions are brought by the litigant. Police forces will often consent to such an order, provided that the order contains certain limiting conditions. The following clauses are often seen in such orders:

(a) Names and contact information for individuals who are not parties to the underlying action will be included, however any personal information of non-parties including social insurance numbers, employment information, dates of birth, next of kin names, driver’s license information, personal health information, etc. will be redacted.

(b) Any information which could compromise law enforcement interests, including confidential law enforcement material and informant information, CIPC and FPS numbers and other confidential police codes and identifying numbers will be redacted.

(c) Any information over which privilege is claimed will be redacted.

(d) In the event that the records are found to include any information subject to the provisions of the Youth Criminal Justice Act (“YCJA), that information will only be disclosed in accordance with the YCJA.

[8] However, it should be noted that in this case, Hydro One is not a party to proceedings; the request sought is more akin to a Norwich order, or a form of pre-action discovery. The Ontario Court of Appeal extensively reviewed this issue in GEA Group AG v. Ventra Group Co., 2009 ONCA 619, 96 O.R. (3d) 481. In granting the order on the particular facts of that case, the Court sounded this cautionary note:

The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy (para. 91).

Practicality

[9] There is no doubt that Hydro One suffers losses to its equipment in hundreds of motor vehicle accidents each year. As it sets out in its Factum at para. 39:

Continual motions for third party productions will unnecessarily add to the time and expense involved in litigation, which litigation might altogether be avoided, in any event, if Hydro One is able to contact the drivers/owners prior to commencing litigation to attempt resolution of its damage claims.

[10] On the other hand, the O.P.P. noted in para. 31 of its Factum:

The courts have noted that proceedings seeking records from individuals or organizations who are not parties to existing or anticipated litigation are commonplace. These proceedings exist to balance the needs of parties to litigation with the various interests that are engaged by a request for non-party records. It is not impractical to require a litigant to convince a court that it is entitled to individuals’ personal information. Rather, such a requirement is in the interests of justice.

Conclusion

[11] Section 200(1) of the Ontario Highway Traffic Act requires persons involved in motor vehicle accidents to provide certain information to any police officer or anyone sustaining loss or injury. There is no doubt that if a representative of Hydro One was on the scene, Hydro One would be entitled to receive that information from the person in charge of the vehicle. However, I am satisfied that the Highway Traffic Act does not obligate the O.P.P. to provide that information to Hydro One, given its responsibilities under the FIPPA legislation, absent a court order. An application to the court provides judicial oversight when such information is sought from non-parties, such as Hydro One. The issues of personal information can be reviewed on a case-by-case basis.

[12] Absent a change in the legislation under s. 200 of the Highway Traffic Act, such a broad-based order as sought by Hydro One would have potential implications for many other third parties, such as utilities or municipalities that sustain damages as a result of motor vehicle accidents. It would also have implications for other police forces in Ontario, in jurisdictions not involving the O.P.P.

[13] I, therefore, dismiss Hydro One’s broad-based application for a Norwich-type order. Hydro One’s application for unredacted reports with respect to nine specific accidents is granted on consent.

Costs

[14] Both parties submitted that this application raised novel issues. Neither side sought costs. No costs are ordered.

MULLIGAN J. Date: May 19, 2016