COURT OF APPEAL FOR ONTARIO

2015 ONCA 107

DATE: 20150217

DOCKET: C59060 & C59062

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

C59060

Ministry of Community and Social Services

Appellant

and

John Doe, Requester, Affected Party, Ontario Public Service Employees Union, and Information and Privacy Commissioner

Respondents

AND BETWEEN

C59062

Ministry of Community and Social Services

Respondent

and

Ontario Public Service Employees Union

Appellant

and

John Doe, Requester, Affected Party, and Information and Privacy Commissioner of Ontario

Respondents

Lise Favreau and Erin Rizok, for the Ministry of Community and Social Services

David R. Wright and Jane Letton, for the Ontario Public Service Employees Union

Lawren Murray, for the Information and Privacy Commissioner of Ontario

Heard: January 20, 2015

On appeal from the judgment of the Divisional Court (Justices Harriet E. Sachs, Herman J. Wilton-Siegel and Mary Jo Nolan), dated February 24, 2014.

Hoy A.C.J.O.:

[1] The appellants, the Ministry of Community and Social Services (the “Ministry”) and the Ontario Public Service Employees Union (“OPSEU”), appeal the order of the Divisional Court, dismissing their application for an order setting aside Order PO-2917 (the “Order”) made by Adjudicator Steven Faughnan of the Information and Privacy Commissioner of Ontario (the “Commissioner”) under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (the “Act”).

[2] The Order requires the Ministry to disclose records that include the full names of some employees of its Family Responsibility Office (“FRO”) to an individual (the “Requester”) who had requested personal information about himself in FRO’s files pursuant to s. 47(1)[^1] of the Act. That section provides an individual with a right of access to his or her own personal information held by the government.

[3] For the reasons below, I would dismiss this appeal.

Overview

[4] FRO’s employees are responsible for enforcing court orders providing for the payment of child support and spousal support in the context of family law proceedings. These employees have direct contact with sometimes volatile support payors and payment recipients. The Requester was a support payor. He alleged that FRO had mismanaged his file and sought to discover the cause of the mismanagement. He did not appear on the application to the Divisional Court for judicial review or on this appeal. OPSEU is the bargaining unit that represents the FRO employees.

[5] The documents sought by the Requester are “all records in [his] FRO file from the beginning”, and include court documents, letters between FRO staff and the Requester or his lawyer, and internal FRO records. Some FRO employees’ names appear in some of these documents.

[6] Under the Act, the minister (the “Minister”) who presides over the Ministry was entitled to refuse to disclose the records sought by the Requester if the disclosure could reasonably be expected to endanger the life or physical safety (s. 14(1)(e)[^2]) or seriously threaten the safety or health (s. 20[^3]) of FRO employees. The Minister relied on this provision in releasing certain records with the names of FRO employees redacted. The Commissioner concluded that the Minister was not entitled to redact the names of the FRO employees under these provisions.

[7] The appellants argue the Divisional Court incorrectly concluded that the Order was reasonable. They renew the arguments they made to the Divisional Court. The appellants say the Commissioner’s conclusion was unreasonable for two principal reasons.

[8] First, the appellants submit the Commissioner acted unreasonably in refusing to accept the appellants’ evidence as sufficient evidence that disclosure could reasonably be expected to endanger the life or physical safety or seriously threaten the safety or health of the FRO employees.

[9] The appellants’ evidence included the order of the Grievance Settlement Board (the “GSB Order”) issued on the consent of The Crown in Right of Ontario (Ministry of the Attorney General) (“MAG”)[^4] and OPSEU in November of 2000 to reflect their “without prejudice and precedent” settlement of grievances filed by FRO employees. The grieving employees alleged that the Ministry’s then-existing policy that they identify themselves to the public by their full names violated the provisions of the collective agreement requiring the employer to take reasonable measures for the protection of employee health and safety. As a result of the settlement and the GSB Order, FRO employees are permitted, but not required, to identify themselves to the public by first name and employee identification number only. According to the appellants, the fact that MAG and OPSEU agreed on the need for protection of employees from the disclosure of their full names is evidence of the existence of a reasonable risk of harm if full names are disclosed.

[10] The appellants’ evidence also showed that between 2002 and 2006 there were 24 documented threats made to FRO staff generally or to individual FRO employees. Those threats included FRO clients saying: they would “bring a fucking bomb down there”; they would “strap a bomb to self and teach court a lesson”; “are you afraid of being shot in the head”; and “if you don’t reinstate my driver’s licence… Columbine in there.” Further, OPSEU represented that its members have reported that FRO clients who somehow obtained the names of FRO employees have used the information to make unsolicited contact with the employees in their homes.

[11] Second, the appellants submit the Commissioner failed to consider that the Act does not impose any constraints on the use of records following their disclosure and the Requester could broadly disseminate the names of the FRO employees after obtaining the information. Instead, they argue, the Commissioner only considered whether the Requester himself could reasonably be expected to endanger the life or physical safety or seriously threaten the safety or health of the FRO employees. The appellants contend that disclosure to an individual under s. 47(1) of the Act should be considered “disclosure to the world”, and as such that the generalized risk to FRO employees as a result of disclosure should be considered.

[12] The appellants also argue the Divisional Court erred in concluding that the Order and the GSB Order are not in operational conflict. According to the appellants, the two orders are in direct operational conflict and the GSB Order, which is about the health and safety of FRO employees, should take precedence.

[13] Below, I address the arguments advanced by the appellants.

Was the Order reasonable?

The Order

[14] The Commissioner referred to the evidence that between 2002 and 2006 there had been 24 documented threats against FRO employees by FRO clients. He also considered the GSB Order, which OPSEU argued was proof of acknowledged risk to the health and safety of FRO employees associated with the disclosure of employees’ names. He noted OPSEU’s evidence that, in relation to threats, it was aware of “more frequent verbal abuse directed towards FRO staff especially over the course of telephone conversations with clients.”

[15] The Commissioner noted there was no indication that the Requester had uttered any threats to FRO employees and there was nothing in the records to indicate that the Requester posed “any type of threat of any kind to FRO employees.” Indeed, “[t]here is, in fact, a clear recognition that he does not.”

[16] He also noted there was no evidence that FRO employees whose names were in the requested records had been subject to any kind of threat or endangerment. The Commissioner concluded there was also no evidence that the FRO employees’ job function required anonymity; the situation was different from that in Duncanson v. Toronto (Metropolitan) Police Services Board (1999), 1999 CanLII 18726 (ON SCDC), 124 O.A.C. 170 (Div. Ct.). In that case, disclosure of the names of all police officers employed by the police was sought. The Divisional Court held that disclosure of all the names should not be provided. Such disclosure would include the names of officers working undercover or in plain clothes assignment, where anonymity was critical. Here, the FRO employees’ job assignment did not require that they remain anonymous.

[17] The Commissioner considered the evidence in light of Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Ministry of Labour, Office of the Worker Advisor) (1999), 1999 CanLII 19925 (ON CA), 46 O.R. (3d) 395 (C.A.): the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated. However, while the expectation of harm must be reasonable, it need not be probable: see Ontario (Ministry of Labour), at para. 25.

[18] The Commissioner concluded that the Ministry had not met this evidentiary threshold.

The Divisional Court’s reasons

[19] In response to the appellants’ argument that the Commissioner failed to consider that, in this digital age, disclosure to the Requester would amount to “disclosure to the world”, the Divisional Court wrote, at para. 52, that the scheme of the Act:

…requires demonstration that disclosure of the requested information to the particular requester would pose a risk to the health or safety of the identified individuals by the requester, rather than by the public at large, before the exemptions in ss. 14 or 20 can be relied upon. This result flows from the fact that disclosure to the requester is not presumed to be disclosure to the public.

[20] While the GSB Order amounted to some evidence of health and safety concerns associated with disclosing FRO employees’ names to the public in the past, there was no evidence that complying with the Requester’s disclosure request posed a health and safety threat to the employees whose names were in the records requested. The Divisional Court explained, at para. 54:

First of all, as the [Commissioner] noted, there was no evidence that this Requester had engaged in threatening or violent behaviour. Second, there was no evidence that any of the employees whose names were going to be disclosed had ever been the subject of any threats by the Requester or anyone else. Third, there was nothing potentially inflammatory in the records themselves. Fourth, as mentioned, the evidence that other employees had been threatened in the past is not relevant to a request under s. 47(1)(b), which requires a consideration of the risk presented by disclosure to the requester. Moreover, to the extent that such evidence can be considered, it is insufficient to allow someone to do anything more than speculate that disclosing the Requester’s records would pose a health and safety risk to the employees whose full names were in those records.

[21] At para. 55, the Divisional Court noted that Duncanson is not authority for the proposition that demonstration of a generalized risk is sufficient in all cases. The Court in Duncanson recognized that whether generalized risk is sufficient is dependent on the facts of each case.

[22] Further, the GSB Order, properly interpreted, was not intended to override the provisions of the Act. (I summarize the Divisional Court’s reasons for so concluding below, in considering the appellants’ argument that the Order conflicts with the GSB Order.)

[23] The Divisional Court concluded the Order was reasonable.

Analysis

[24] I agree with the Divisional Court that the Order is reasonable. The Order falls within a “range of reasonable administrative choices”: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 153. And I agree almost entirely with the Divisional Court’s reasoning.

[25] The Commissioner considered all of the evidence, including the GSB Order, in concluding that the Ministry had not satisfied its evidentiary burden. Since the Commissioner and the Divisional Court rendered their decisions, the Supreme Court has clarified what is meant by “could reasonably be expected to” where that phrase appears in the Act, including in ss. 14(1)(e) and 20: see Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674, at para. 54. The Court held in Ontario (Community Safety and Correctional Services) that the “could reasonably be expected to” standard provides “a middle ground between that which is probable and that which is merely possible”: para. 54. It went on to write, at para. 54:

An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground. [Citations omitted.]

[26] The Commissioner’s analysis of the evidence accords with this formulation.

[27] While any threat to an employee is of concern, the evidence before the Commissioner was that in the period between 2002 and 2006 during which FRO employees received 24 documented threats, FRO employees would have handled an estimated 2.988 million calls. It was accepted that the Requester himself posed no threat to FRO employees. As to the risk arising if the Requester disseminated the names of FRO employees disclosed in the records, as the Commissioner and Divisional Court both noted, there was no evidence that the FRO employees whose names were going to be disclosed had ever been the subject of threats by the Requester or anyone else. Further, the Requester had the names of at least seven employees and had not disseminated that information. And, as the Divisional Court noted, there was nothing inflammatory in the records that suggested the behaviour of the Requester would change after reviewing the records sought.

[28] The appellants cite a number of orders of the Commissioner that they say support their argument that disclosure to a requester under s. 47(1) of the Act should in all cases be treated as disclosure to the world. In my view, none of the orders cited by the appellants presumptively accord this factor the weight the appellants argue for. Order PO-3133, [2012] O.I.P.C. No. 232 comes nearest to doing so. There, the Commissioner acknowledged the possible consequences of disclosure, but concluded that the risk of broader dissemination should not be given much weight in the circumstances.[^5] At para. 81, the Commissioner wrote:

I am not persuaded that “disclosure under the Act is disclosure to the world” is a factor that should be given much weight in the circumstances of this appeal. This factor is implicit in any access decision made under the Act. In my view, the Legislature tacitly acknowledges the possible consequences of disclosure.

[29] I reject the appellants’ argument that the Commissioner did not consider the risk that the Requester might disseminate the names of the FRO employees in the records. The Commissioner’s observation that there was no evidence that FRO employees whose names were in the requested records had been subject to any kind of threat or endangerment and his consideration of Duncanson both clearly indicate that he was alive to the appellants’ submission. Essentially, the Commissioner did what the adjudicator in Order PO-3133 did: he considered the possible risk of broader dissemination and concluded that it was not a significant factor in the circumstances.

[30] Nor in my view do the Divisional Court’s reasons, properly read, indicate that the risk that an individual who requests information under s. 47(1) of the Act will disseminate that information is not a proper factor in assessing whether the disclosure to the requester “could reasonably be expected to” endanger the life or physical safety or seriously threaten the safety or health of a person or group of persons. To the extent they may be read otherwise, I disagree. In my view, the risk that a requester will share the information provided to him or her is a relevant factor, to be assessed with all of the other relevant factors, in determining whether or not the evidentiary threshold established by the Supreme Court in Ontario (Community Safety and Correctional Services) has been met. And this, in my view, was what the Commissioner did.

[31] Finally, while the appellants point out that the Requester did not provide an undertaking as to confidentiality, the Act does not require that a requester provide one and it is not clear to me that it had been suggested that he provide one. However, the provision of an undertaking as to confidentiality by an individual requesting access to information under s. 47(1) of the Act could be relevant in considering the weight to be given to the risk arising from broader dissemination in assessing the risk alleged under ss. 14 or 20 of the Act.

Does the Order conflict with the GSB Order?

[32] Where it is impossible to comply with two administrative decisions because they are in direct operational conflict, the courts must determine which decision should take precedence: see British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., 1995 CanLII 101 (SCC), [1995] 2 S.C.R. 739, at paras. 47, 53. The appellants argue that compliance with the Order would necessitate the violation of paragraph 4 of the GSB Order.

[33] As indicated above, the GSB Order was taken out on the consent of OPSEU and MAG, the FRO employees’ employer, to reflect a “without prejudice and precedent” settlement of grievances filed by FRO employees pertaining to the use of their full names in the course of their employment. Paragraph 1 of the GSB Order indicates that the “Employer” agrees to implement the new policy regarding the use of names by staff at FRO. The new policy is attached to the GSB Order as Appendix A.

[34] The attached policy provides: employees may identify themselves on the telephone or on their voicemail by their first name and identification number only; documents prepared for use in court, such as affidavits, shall include the employee’s full name; in non-court documents, employees may generally identify themselves by their first name and identification number only; and where the Minister determines that the use of a full name is required, for non-court documents, employees will use their first name and ID number as well as the full name of their manager.

[35] Paragraph 4 of the GSB Order provides:

The Employer will inform all staff who may give out the names of FRO employees in response to inquiries form (sic) the public of the terms of the new policy provided by this settlement. Anyone disclosing the name of another FRO bargaining unit employee will be required to use the person’s 1^st name and I.D. number only. [Emphasis added.]

[36] The appellants say that the word “anyone” includes the Minister, and paragraph 4 therefore prohibits the Minister from releasing records containing the full names of FRO employees in response to a request for information under s. 47(1) of the Act.

[37] The Divisional Court provided thorough and cogent reasons for its conclusion that the Order does not conflict with paragraph 4 of the GSB Order:

• The words “without prejudice and precedent” signify “that the GSB Order was meant to be confined to the specific circumstances giving rise to that order.” (para. 57)

• The policy provides FRO employees with “a choice as to how they identify themselves to members of the public when they are dealing with the public over the telephone or in written correspondence (other than court documents).” (para. 58)

• Taken in context, paragraph 4 of the GSB Order applies “to other staff who may be faced with inquiries from the public about the names of fellow staff members. This is clear from the first sentence, which deals with the need to inform all staff about the new policy, and the use of the word “another” in the second sentence. By virtue of this word “anyone” should be read as meaning “anyone who is also a FRO bargaining unit employee”. Accordingly, “anyone” does not extend to the Minister for this purpose.” (para. 60)

• There is no suggestion that when the GSB Order was made, the provisions of the Act and its important public policy goals were considered. “[N]o inference can be drawn that the GSB Order was intended to override the provisions of the Act.” (para. 64)

• Under the Act, the request for information is made to the head of the institution – in this case, the Minister. Whether or not to apply an exemption under the Act requires an exercise of discretion by the Minister that cannot be fettered in advance. “[T]he Minister cannot consent to an arrangement that would have the effect of contracting out of his or her obligations under the Act.” (para. 65)

[38] I agree with the Divisional Court’s reasoning and conclusion. The Order does not necessitate violation of the GSB Order.

Disposition

[39] I would accordingly dismiss this appeal. Costs were not sought and none are ordered.

Released: February 17, 2015 (A.H.)

“Alexandra Hoy A.C.J.O.”

“I agree K. van Rensburg J.A.”

“I agree David Brown J.A.”

[^1]: Section 47(1) of the Act reads:

Right of access to personal information

s. 47(1) Every individual has a right of access to,

(a) any personal information about the individual contained in a personal information bank in the custody or under the control of an institution; and

(b) any other personal information about the individual in the custody or under the control of an institution with respect to which the individual is able to provide sufficiently specific information to render it reasonably retrievable by the institution.

[^2]: Section 14(1)(e) of the Act reads:

Law enforcement

14. (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(e) endanger the life or physical safety of a law enforcement officer or any other person;

It is conceded that FRO employees constitute law enforcement officers.

[^3]: Section 20 of the Act reads:

Danger to safety or health

20. A head may refuse to disclose a record where the disclosure could reasonably be expected to seriously threaten the safety or health of an individual.

[^4]: While the Ministry is responsible for the operation of FRO, FRO employees are employees of MAG, not the Ministry.

[^5]: In Order PO-3133, the parents of a young man who died in a boating accident at a party sought records disclosing the son’s personal information (the details of his death) relying on the “compassionate reasons” limitation in s. 21(4)(d) of the Act. The adjudicator declined to disclose information that related “solely to other individuals at the party or other witnesses that do not directly impinge on the circumstances of the deceased’s death”: para. 87.