Court File and Parties

CITATION: Watson v. The Corporation of the Municipality of Stirling-Rawdon, 2021 ONSC 2436

DIVISIONAL COURT FILE NO.: 564/20

DATE: 20210331

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SARI WATSON, Applicant

AND:

THE CORPORATION OF THE municipality OF STIRLING-RAWDON and the integrity commissioner THE municipality OF STIRLING-RAWDON, Respondents

BEFORE: Penny J.

COUNSEL: Nancy J. Tourgis and Laney Paddock for the Applicant

Suzanne E. Hunt for The Corporation of the Municipality of Stirling-Rawdon

ENDORSEMENT

[1] This is a motion for directions by Ms. Watson to settle the record to be filed on her pending application for judicial review. In her application, the applicant seeks to set aside a report of the Integrity Commissioner for Stirling-Rawdon, dated October 21, 2020 and the subsequent acceptance of that report by the Stirling-Rawdon municipal council on November 5, 2020. In the report, the Commissioner, following an investigation under Part V.1 (Accountability and Transparency) of the Municipal Act, 2001, S.O. 2001, c. 25: a) found that the applicant had breached provisions of the municipality’s code of conduct by-law; and, b) recommended sanctions against the applicant to the municipality.

[2] The applicant seeks an order requiring the Commissioner to file, as part of the record in her application, the entire record of proceedings upon which his report was based or, in the alternative, an order requiring the Commissioner to file a record of proceedings that includes all of the supporting records with respect to the facts, evidence and conclusions set out in the Commissioner’s report.

[3] The issue in part turns on the relationship between the Commissioner’s obligation under the Judicial Review Procedure Act and Statutory Powers Procedure Act to file the “record of proceedings” before him and the Commissioner’s obligation to preserve the confidentiality of all matters that came to his knowledge in the course of exercising his duties under Part V.1, as prescribed by s. 223.5 of the Act.

[4] The merits of the complaints referred to the Commissioner, of the Commissioner’s decision and of the application for judicial review are, of course, not relevant to the motion presently before the court. The background can therefore be succinctly summarized as follows.

[5] The applicant is a member of municipal council for Stirling-Rawdon. Stirling-Rawdon has a code of conduct under Part V.1 of the Act. Complaints were made about whether the applicant’s conduct in her role as an elected member of municipal council violated the code. The Commissioner investigated these complaints. In the course of his investigation, the Commissioner interviewed 32 people and reviewed numerous documents and other material. The applicant was made aware of complaints against her and was one of the people interviewed by the Commissioner.

[6] The Commissioner prepared a draft report in which he set out the substance of the complaints and the basis for his findings with respect to those complaints, i.e., that the applicant had breached certain obligations under the code. Neither the draft nor the final report identified the complainants and other witnesses. Nor did these reports set out all the details of the evidence provided by these witnesses for each specific alleged breach. The sufficiency of the disclosure contained in the draft report (which was provided to the applicant in order to solicit her response) is at the heart of the procedural fairness ground of her application for judicial review.

[7] A copy of the draft report was provided to the applicant. The applicant responded to the draft report by, among other things, delivering a 48-page written submission. This submission was not filed on this motion. Nor is there any evidence that the applicant raised concerns about her ability to respond to the complaints before delivering her written submission. The Commissioner finalized his report on October 21, 2020. His report reflects the submissions of the applicant but his findings remained essentially unchanged. The final report also included the Commissioner’s recommended sanctions. The matter came before municipal council on November 5, 2020. Again, the record before me on this motion does not disclose whether the applicant had the opportunity, on or before November 5, 2020, to make further submissions to council about the Commissioner’s final report, findings and recommendations.

[8] Council accepted the Commissioner’s report, confirmed the findings of the Commissioner regarding the applicant’s breaches of the code and accepted the Commissioner’s recommendations regarding sanction.

[9] The application for judicial review challenges the Commissioner’s report, and the municipality’s adoption of the report, on grounds of lack of jurisdiction and denial of procedural fairness. It is the latter ground, the alleged denial of procedural fairness, which gives rise to the present motion for disclosure of the Commissioner’s entire file.

[10] Section 20 of the SPPA (which is incorporated by reference into Part V.1 by virtue of s. 23.5 of the Act) prescribes the content of the record of proceedings. Section 20 states:

A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

[11] The Commissioner’s duty to preserve secrecy is set out in s. 223.5 of the Act:

The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part.

[12] Section 223.6(2) of the Act sets out a discretionary exception to s. 223.5:

If the Commissioner reports to the municipality or to a local board his or her opinion about whether a member of council or of the local board has contravened the applicable code of conduct, the Commissioner may disclose in the report such matters as in the Commissioner’s opinion are necessary for the purposes of the report.

[13] The applicant’s first argument is that, because the Commissioner’s report discloses some of the facts and evidence considered or relied on by the Commissioner, he has “engaged the statutory exception to the duty to preserve secrecy with respect to the evidence”. As such, the argument goes, there is no longer a statutory duty to preserve the secrecy of any evidence obtained by the Commissioner during his investigation. Further, by virtue of being referred to in the report, the applicant argues, it must be inferred that all the evidence is therefore “necessary for the purposes of the Report” within the meaning of s. 223.6(2) of the Act and ought to be disclosed.

[14] I do not accept this argument. The discretion about what is “necessary” to disclose and what is not is conferred on the Commissioner, not the court. Mandamus generally does not lie to compel the exercise of discretion. More importantly, if accepted, the applicant’s argument would rob the confidentiality obligations of the Commissioner under s. 233.5 of all meaning. Every integrity commissioner’s report is going to make some reference to the evidence uncovered in an investigation. If this constituted, in every case, an effective waiver of the “secrecy” requirement for everything gathered by the commissioner in the course of an investigation, the entire purpose of the enactment of s. 233.5 and the discretion afforded in s. 233.6 would be defeated.

[15] The applicant’s second argument is that s. 233.5 ceases to have force where there is subsequent litigation about the Commissioner’s report which, as here, engages the sufficiency of disclosure by the Commissioner of the case to be met. The applicant argues that it cannot be determined whether she was denied procedural fairness by insufficient disclosure without knowing the details of all the evidence available to the Commissioner, including what she was not given.

[16] In making this argument, the applicant relies on a decision of this Court in Fuda v. Information and Privacy Commissioner et al, 2003 12661 (ON SCDC), [2003] O.J. No. 2790. In obiter, the court “noted” that in performing his or her legislative function, a privacy commissioner is performing an inquisitorial function that does not mandate a public hearing. Once a privacy commissioner’s decision is brought to court, however, the review process changes from inquisitorial in nature to adversarial. Absent specific provisions to the contrary, the court went on to say, denial of information in a court setting is the exception and not the norm because, in court proceedings, the presumption of openness applies subject to sound reasons to the contrary.

[17] Thus, the applicant argues, the duty to preserve secrecy under the Act should not minimize or qualify the duty to file in her application for judicial review the full record of all the evidence and other material that was available to the Commissioner.

[18] I cannot accept this argument. Fuda has no application to this case. Fuda was concerned with the general principle of “open” court proceedings, at common law and under s. 135 of the Courts of Justice Act. Fuda did not involve s. 233.5 of the Act or any comparable provision. Fuda acknowledged that the “open-ness” principle must yield to, among other things, “specific provisions to the contrary.” Here, s. 233.5 is a specific provision to the contrary.

[19] More apt in this context is the decision of Marrocco A.C.J.S.C., writing for this Court in DiBiase v. Vaughan (City), 2016 ONSC 5620. In the course of his reasons, the former associate chief justice considered ss. 233.5 and 223.6 of the Act, observing that these sections provide a commissioner with “significant autonomy” regarding the disclosure of information obtained during an investigation. Section 233.5 recognizes that when deciding how much information must be disclosed, a commissioner may take into account specific local concerns associated with disclosure that may require confidentiality or protection of informant’s identities. A commissioner, he wrote, is not required to identify the witnesses or disclose the documents provided by them. He went on to cite the famous passage from Lord Denning in Selvarajan v. Race Relations Committee, [1976] 1 All E.R. 12 (Eng. C.C.) at p. 19, to the effect that a subject of an investigation is entitled to know the case against her and be afforded a fair opportunity of answering it. The investigator is the master of his own process, however, and “need not put every detail of the case” forward in disclosure. It is sufficient if the “broad grounds” are given.

[20] In DiBiase, there is no indication that the Court, in ruling on the sufficiency of disclosure of the “case to be met”, required or had access to the undisclosed, confidential details of the commissioner’s investigation. On the record before me on this motion, I am in no position to evaluate the sufficiency of the disclosure given by the Commissioner at the time nor is that my role. Whether there was sufficient disclosure of the case to be met will be for the panel hearing the application to consider and decide. At this point, I am not prepared to order disclosure of material protected under s. 233.5 and considered by the Commissioner not to be necessary for the purposes of his report. It has not been shown, as a matter of law or procedural fairness, that s. 233.5 can or should be overridden. Section 20 of the SPPA specifically contemplates circumstances where some or all of the evidence available to the tribunal will not be part of the record of proceedings because it is subject to a limitation expressly imposed by another Act. Section 233.5 is such a provision.

[21] Accordingly, the motion is dismissed.

[22] Costs are awarded to the municipality, payable by the applicant, in the amount of $1,500 inclusive of fees, disbursements and applicable taxes.

Penny J.

Date: March 31, 2021