CITATION: Brown v. Information and Privacy Commissioner of Ontario, 2021 ONSC 8081

DIVISIONAL COURT FILE NO.: 117/21

DATE: 2021/12/10

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Douglas Brown, Applicant

AND:

Information and Privacy Commissioner of Ontario and Toronto Police services Board, Respondents

BEFORE: Sachs, Backhouse and Mandhane JJ.

COUNSEL: Nick Papageorge and Ashley Wilson, for the Applicant

Linda H-C Chen, for the Respondent, Information and Privacy Commissioner of Ontario

David A. Gourlay, for the Respondent, Toronto Police Services Board

HEARD at Toronto by videoconference: December 7, 2021

ENDORSEMENT

SACHS J.

[1] The Applicant, Douglas Brown, seeks judicial review of two decisions of the Information and Privacy Commissioner (the “IPC”) – the Decision dated October 2, 2020 and the Reconsideration Decision dated January 27, 2020. As a result of these decisions the Applicant’s appeal was dismissed as the doctrines of issue estoppel and collateral attack were found to apply to the Applicant’s request.

[2] On this judicial review application, the Applicant challenges the IPC’s findings with respect to issue estoppel and collateral attack. He also alleges that the IPC’s decision was procedurally unfair.

[3] The parties agree that the reasonableness standard applies to the first two issues and that no standard of review analysis is required with respect to the third issue.

Did the IPc Unreasonably apply the doctrine of issue estoppel?

[4] The IPC’s framework for its analysis on this issue is the two-step process prescribed by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. At the first step of the analysis the decision-maker is required to consider whether three conditions have been satisfied: (1) that the same question has been decided in a prior proceeding; (2) that the decision that is said to create the estoppel was final; and (3) that the parties to the prior decision (or their privies) were the same parties in the proceeding at issue. If these three conditions are met, the decision-maker must consider whether it should exercise its residual discretion not to apply the doctrine. This requires balancing the public interest in the finality of litigation with the public interest in ensuring that justice is done in a particular case.

[5] The Applicant does not challenge the IPC’s legal framework for its analysis. Rather, he submits that its findings with respect to the first and second of the three conditions was unreasonable as was its finding on whether to exercise its residual discretion.

The First Condition – Was the same question decided in the prior proceeding?

[6] In a prior IPC proceeding, known as the 2003 Request, the Applicant requested access to Toronto Police Service Board (“TPSB”) records relating to an investigation and his arrest for multiple accounts of sexual assault while he was a teacher at Upper Canada College.

[7] In response to the 2003 Request the police identified approximately 4200 pages of documents, but denied access to them on the basis of the exemption for personal privacy contained in the Municipal Freedom of Information and Privacy Act[^1] ("MFIPPA”). In 2005 the IPC ordered that the police disclose certain records. The TPSB and the Attorney General sought to judicially review that decision. In 2013 the IPC, on its own motion, reconsidered its initial decision, found that there had been some errors in that decision and made a new order for disclosure. Once the 2013 Reconsideration Decision was issued, the judicial review applications were abandoned.

[8] In 2010 the Applicant made another request for records to the TPSB, which he described as an update of his 2003 Request. In that request he was seeking records for the period after the period covered by the 2003 Request ie from 2003 to 2010. That request resulted in one record being produced consisting of a 6-page email exchange. The police withheld portions of that email chain on the basis of certain MFIPPA exemptions, including the privacy exemption. The Applicant appealed that decision and argued that the police had not made a reasonable search for records. That appeal resulted in the issuance of four decisions, none of which were challenged by way of judicial review.

[9] In February of 2018 the police sent the Applicant a letter enclosing four pages of index and 160 pages of documents that they identified as relating to the 2010 Request. They also stated that they were withholding certain portions of these records based on the privacy exemption. The Applicant appealed to the IPC.

[10] In response to the Applicant’s appeal the IPC asked for the parties’ representations on the use by the police of the privacy exemption and the reasonableness of the police’s search for responsive records.

[11] In his representation, the Applicant pointed out that the records at issue related to the 2003 Request, not the 2010 Request. The IPC then asked the parties to make representations on whether the 160 records enclosed with the 2018 letter had been the subject of previous appeals or orders by the IPC.

[12] The police responded by acknowledging that the records at issue all related to the period prior to 2003 and that they had erred when they stated otherwise. The records had nothing to do with the 2010 Request. They also responded by saying that all of the records had been considered and adjudicated upon in the 2003 Request proceedings.

[13] In the Decision under review the IPC found as follows with respect to the 160 records:

[35] I have reviewed the records. They do not fall within the time-frame of the 2010 request and I accept the appellant’s evidence that they relate to the 2003 requests. Based on my review of the records and the circumstances, I am satisfied that they were the subject of proceedings related to the 2003 requests. The 2003 requests, which also included search issues, were addressed in Order MO-1908-I and Reconsideration Order MO-1968-R, both of which were subject to applications for judicial review. Those Orders were further reconsidered in Reconsideration Order MO-2953-R, and the applications for judicial review were abandoned. In support of my conclusion, I note that the records all bear the type of numbering discussed by the appellant albeit quite faintly on some pages, indicating that they were contained in a record of proceedings for judicial review before the Divisional Court of Ontario that arose from Order MO1908-I and Reconsideration Order MO-1968-R.

[14] In other words, the IPC made a finding that the records at issue in the appeal before him had been the subject of prior adjudication by the IPC. He did so based on the parties’ representations that the records related to the 2003 Request time period, and the numbering that he observed on the records that indicated that they had been part of a judicial review proceeding record that was brought in response to IPC dealing with the 2003 Request. Given this, he found that the first condition for issue estoppel had been satisfied.

[15] The Applicant submits that this determination was unreasonable because the IPC did not refer to or have all the records that were the subject of the 2003 Request and the 2013 reconsideration adjudication concerning that request. According to the Applicant, different records raised different questions and without reviewing the individual records that were the subject of the 2003 Request, the IPC cannot make a finding that that proceeding had decided the same question.

[16] I disagree. As set out in Danyluk, supra, at para. 54 “the estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that ‘issue’ in the prior proceeding.” The appeal before the IPC concerned 160 records that the adjudicator found were part of the records produced in the 2003 proceeding and the subject of the decisions made in that proceeding. That finding was based on evidence that the IPC set out, including the numbering on the records. There was also no evidence to the contrary. The questions before the IPC with regards to the 160 records were questions that were clearly questions in the 2003 Request proceedings – namely the use of the privacy exemption with respect to the records (including the 160 records produced in 2018) and the reasonableness of the police search for records. Thus the IPC reasonably concluded that the issues, which were issues of mixed fact and law, were the same in both proceedings.

The Second Condition – Finality

[17] The Applicant argues that the IPC unreasonably decided that the second condition for issue estoppel was met as the 2013 Reconsideration Decision stated that if there were issues of compliance with that decision it could be brought back to the adjudicator who made that decision. This meant that the decision was not a final one.

[18] The fact that the adjudicator reserved issues of compliance with his order to himself does not mean that his decision with respect to the issues he was asked to decide was not a final one. He made a final decision about what documents the police had to disclose and the nature of the redactions they could make to those documents. His decision in that regard has not been judicially reviewed and no compliance issues have in fact arisen.

Residual Discretion

[19] The Applicant submits that the IPC unreasonably failed to exercise its residual discretion not to apply the doctrine of issue estoppel. This submission is based on an allegation that when the 2003 Request was reconsidered in 2013 the adjudicator in that proceeding told the Applicant that he would have the opportunity to make submissions once the adjudicator had received submission from the police. In fact, he was never given the opportunity to make submissions, which fundamentally undermined the fairness of the prior proceeding.

[20] This submission ignores the fact that prior to the 2005 IPC decisions all parties had had the opportunity to make extensive submissions concerning the issues in the 2003 Request. Once the arbitrator who did the reconsideration in 2013 had the opportunity to review those submissions he decided that he did not need to receive further arguments from any of the parties. He advised the parties of this and no challenge to the process used was brought by the Applicant or anyone else after the 2013 Reconsideration decision was issued.

[21] Given that the issues and the nature of the case had not changed between 2005 and 2013 there was nothing unfair about the 2013 adjudicator’s approach to his task.

Conclusion

[22] For these reasons I find that there is no basis to challenge the reasonableness of the IPC’s decision with respect to issue estoppel.

Was the IPC’s Decision with respect to Collateral attack unreasonable?

[23] The Applicant argues that he was under the impression that he could address the 2010 Requests in the appeal. He got this impression both from the file number that the IPC used with respect to the appeal and from the fact that he was asked to make submissions with respect to the redactions made by the police to the documents enclosed with their 2018 Letter.

[24] I agree that there was some confusion created by the police’s letter of 2018. However, as outlined above, the Applicant himself took steps to clarify that confusion. As he pointed out the records disclosed in 2018 were not from the period encompassed by the 2010 Request. They were from the period at issue in the 2003 Request. Once this was clear to the IPC, it changed the focus of the appeal from the 2010 Request to determining whether the records had been subject to a prior adjudication in the 2003 Request proceedings.

[25] The IPC had made four orders in relation to the 2010 Request, including orders concerning the adequacy of the police search for records. The Applicant sought to relitigate the issues raised in the 2010 Request, issues that the IPC had already decided. While the Applicant may have thought it was legitimate for him to make these submissions (although this is difficult to understand since he conceded that the records giving rise to the appeal had nothing to do with the 2010 Request period), this has no bearing on the fact that it was reasonable for the IPC to find that the Applicant’s submissions were a collateral attack on the IPC’s prior orders in the 2010 Request proceedings.

Procedural Fairness

[26] The Applicant submits that he was denied procedural fairness because the IPC did not provide the assistance he should have received as a self-represented litigant and failed to give him notice of the fact that it was considering dismissing his appeal on the basis of issue estoppel.

[27] First, it is to be noted that the Applicant did not raise any procedural fairness issues in his request for reconsideration. This is significant as, if he had, the IPC could have considered whether it should take steps to remedy any perceived unfairness. It is inappropriate to allow a judicial review on the basis of a procedural fairness concern that could have been raised and dealt with by the adjudicator below.

[28] Second, the IPC did give clear notice of the issue that it wanted addressed – that is, whether the records at issue had been the subject of a prior adjudication. The Applicant made submissions on that issue, which was the crucial one for the purpose of the issue estoppel determination.

[29] Third, the Applicant, while self-represented, is a sophisticated litigant when it comes to proceedings before the IPC.

Conclusion

[30] For these reasons the application for judicial review is dismissed. In accordance with the agreement of the parties, the Applicant is to pay the TPSB its costs of this proceeding, fixed in the amount of $5000.00, all inclusive.

Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Mandhane J.

Date: December 10, 2021

[^1]: RSO 1990, c. M.56.