Court of Appeal for Ontario

Date: 2017-02-09 Docket: C62302

Judges: Feldman, Gillese and Pepall JJ.A.

Between

Hydro One Networks Inc. Applicant (Appellant)

and

Ontario Provincial Police Respondent (Respondent)

Counsel

Robert Ryan, for the appellant

Christopher Diana and Hera Evans, for the respondent

Heard

February 3, 2017

On Appeal

On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated May 19, 2016.

Endorsement

[1] During the course of submissions, the court raised the issue of its jurisdiction to hear the appeal. Ultimately, the appeal was adjourned to receive written submissions on the jurisdiction issue. This is the court's endorsement respecting the adjournment.

[2] Hydro One brought an application against the Ontario Provincial Police ("OPP") to obtain a declaration that the OPP is required to provide to Hydro One, on request, when its property is damaged in a traffic accident, a copy of the accident report containing the names and addresses of the driver(s) and owner(s), the driver's licence number, insurance information and vehicle permit number. Hydro One requires this information to be able to seek compensation for its losses.

[3] Initially, the application related to nine specific accident reports as well as the general declaration, but the OPP either consented to or did not oppose the order in respect of the specific reports. Those orders having been made, the only matter left to be determined was the general declaration.

[4] The record consists of two affidavits filed by Hydro One, explaining that its property was damaged in each of the nine accidents and although it required the names of the parties to the accident and their contact information in order to be compensated for its loss, the OPP refused to provide a report containing all the necessary information without a court order. Therefore, in each case, Hydro One was required to commence court proceedings and obtain an order.

[5] The OPP filed no record. However, its position on the application, contained in its factum, is that because of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("FIPPA"), it will not provide such reports containing the personal information of the persons involved in the accidents without the protection of a court order.

[6] The court raised with counsel two issues respecting its jurisdiction to hear and determine the appeal as presented: 1) whether the court could make a declaration respecting the interpretation of a statute under rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 when there is no actual lis between the parties that is before the court; and 2) whether the court could make a declaration interpreting the provisions of the FIPPA when it is not hearing a judicial review of a decision of the privacy commissioner, and if it could, whether the privacy commissioner must be named as a party to the proceeding.

[7] The appeal is adjourned to allow the parties the opportunity to provide written submissions to the court on these two jurisdictional questions as well as whether the record before the court is sufficient to consider the issue raised by the application and the appeal. Each party may provide a factum of a maximum of 15 pages within 15 days of the release of this endorsement.

"K. Feldman J.A."

"E.E. Gillese J.A."

"S.E. Pepall J.A."