CITATION: YUDC v. Information and Privacy Commissioner, 2022 ONSC 1755
DIVISIONAL COURT FILE NOS.: 133/20;134/20
DATE: 20220401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, MATHESON & COPELAND JJ.
BETWEEN:
YORK UNIVERSITY DEVELOPMENT CORPORATION Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, YORK UNIVERSITY and JOHN DOE/JANE DOE REQUESTERS Respondents
AND BETWEEN:
YORK UNIVERSITY Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, YORK UNIVERSITY DEVELOPMENT COPORATION and JOHN DOE/JANE DOE REQUESTERS Respondents
Jeffrey E. Feiner and Michelle Stephenson for York University Development Corporation, Applicant/Respondent
Christine L. Lonsdale and Alana Robert, for York University, Applicant/Respondent
Linda H-C. Chen, for the Respondent Information and Privacy Commissioner of Ontario, Respondent
Marcia Macaulay and Jody Berland, self-represented requesters, Respondents
HEARD at Toronto (by videoconference): January 18, 2022
Copeland J.:
REASONS FOR DECISION
Overview
[1] In these applications for judicial review, York University (“York”) and York University Development Corporation (“YUDC”) challenge the decision of the Information and Privacy Commissioner (“the IPC”) dated February 14, 2020, with reasons reported at 2020 15337, denying their request for reconsideration of an order requiring the production of certain records (the “Reconsideration Order”).
[2] The applicants argue that the IPC Adjudicator (“the Adjudicator”) committed reviewable error in her interpretation and application of the test for whether records are under the control of an institution pursuant to s. 10(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). They further submit that the Adjudicator committed reviewable error in her approach to reconsideration of a decision under s. 18 of the IPC Code of Procedure.
[3] For the reasons set out below, I find that the Adjudicator’s decision denying the request for reconsideration is reasonable, and dismiss the applications.
The Factual Background
[4] YUDC was created to assist York with the planning and development of York’s lands. York is YUDC’s sole shareholder. Two York professors (the “requesters”) sought records from both York and YUDC under the FIPPA. The access to information requests related to renovations to the York University Bookstore and to the York Lanes Pharmacy. York processed the requests regarding the bookstore renovations and York Lanes separately. These applications for review relate only to the access request relating to renovations to the bookstore.
[5] I note at the outset that the access request at issue was broader in scope than the records that remain in issue in the review. Only four records are still in dispute, records 2, 3, 6, and 11. My summary of the factual background is focussed on the history as it relates to those four records.
[6] In generic terms, the four records at issue are described in the IPC orders as follows:
• three memoranda (in their entirety) addressed to members of YUDC’s Board of Directors dated March 19, 2014 (record 2), September 15, 2015 (record 3), and December 16, 2015 (record 11);
• a document about York Lanes refinancing and projects (record 6).
The four records at issue were filed as part of the record on the applications for review, subject to a sealing order pending the decision on the applications.
[7] Section 10(1) of FIPPA provides for a right of access to records that are “in the custody or under the control of” an institution subject to FIPPA. York is an institution subject to FIPPA; however, YUDC is not. The central issue in this review turns on the statutory interpretation and application of “under the control of” an institution in s. 10(1) as it applies to the records at issue in the access request in this case. However, some further background is helpful to understand the issue.
[8] York’s Director, Information, Privacy & Copyright Office considered the access request. As part of its consideration of the access request, pursuant to s. 28 of FIPPA, York gave notice to YUDC as an affected party and an opportunity to make submissions in relation to records which might be covered by the s. 17 exemption for third-party information in FIPPA (Letter of March 24, 2016).
[9] In its submissions to York on the access request with respect to the four records in issue in this review,[^1] YUDC took the position that all four records qualified for the third-party exemption in s. 17 of FIPPA (Letter of April 1, 2016). YUDC made submissions on the various branches of the test for the exemption under s. 17 of FIPPA. In addressing the branch of the test under s. 17 regarding whether the information was supplied by the third party to the institution in confidence, YUDC’s submission stated:
YUDC’s Board of Directors memos and packages are only distributed to members of our Board of Directors, and not to any other parties inside or outside of the University. We have a reasonable expectation that the materials are provided in confidence.
[10] On April 23, 2016, York issued a decision granting access to the requesters to some records, and denying access to others (Decision Letter, April 23, 2016). The Decision letter advised that York had considered the representations of the third party (YUDC) and notified the third party that York had made a decision to grant access to some records, and claim exemptions for parts, notwithstanding the third party’s representations. The letter then explained that it enclosed an index of records which contained a general description of each record, indicated whether access was being granted or denied, and where access was denied in whole or in part, indicated the applicable section of FIPPA under which access was denied. As it relates to the records in issue in this review, records 2, 3, 6, and 11, access was denied pursuant the third-party information exemption in s. 17 of FIPPA. At the close of the letter, York’s Director, Information, Privacy & Copyright Office wrote:
The University reaffirms its position that the York University Development Corporation is a separate legal entity from York University. Records generated through operations of its affairs are under the custody and management of the YUDC’s Board of Directors, not under the control of the University, and are consequently not subject to FIPPA.
[11] In addition to the decision letter to the requesters, York also wrote to YUDC to advise it of the decision as it related to YUDC (Letter to YUDC, dated April 23, 2016). That letter advised that for some documents access was being granted, and for some access was being denied. It reported that three documents had been removed from the index on the basis that they were not responsive to the access request. With respect to the documents at issue in these reviews, the letter stated:
York University has also decided to deny access in full to those records deemed to be under the direct custody and control of the York University Development Corporation. These include document numbers 2, 3, [6], and [11].
[12] The requesters appealed York’s decision to the IPC. As part of its intake process, the IPC sent a request to York for documents related to the access request and decision (Letter dated May 27, 2016). York provided the requested documentation (Letter of June 13, 2016).
[13] Before the appeal proceeded, a mediation between York and the requesters was conducted pursuant to s. 51 of FIPPA. I will not summarize the mediation in detail, but I note that during the mediation York agreed to give access to portions of one document (record 4 – which is no longer in issue and has been disclosed), and clarified the scope of the exemptions it was relying on to deny access to the remainder of record 4 (Mediation Report, September 28, 2016, p. 3). In addition, the requesters agreed that they were not pursuing access to a number of specific records. This left five records as the subject of the IPC appeal, records 2, 3, 6, 11, and the withheld portions of record 4. At the close of the Mediation Report, the Mediator listed the only issue remaining in dispute as it related to records 2, 3, 6, and 11 as being whether the s. 17 third-party information exemption applied to those records. In the cover letters sent with the Mediation Report to York and to the requesters, the Mediator asked the parties to review the report and to contact her if there were any errors or omissions.
[14] Although YUDC was not formally a party to the mediation, it was consulted during the mediation. In the Mediation Report, the Mediator wrote (at p. 3): “During the mediation, the mediator had discussions with the appellant, the University and the affected third party.” Similarly, in the Reconsideration Order at paragraph 19, the Adjudicator noted that during the mediation stage, the mediator exchanged communications with the then-President of the affected party (YUDC) by phone and email.
[15] During the mediation, no party raised the issue of whether York had custody or control of the four records at issue in this review. Nor was the issue of custody or control of the records raised by any party after the Mediation Report was sent, despite the invitation by the Mediator for the parties to contact her about any omission in the report.
[16] Following the mediation, the appeal proceeded before the IPC Adjudicator. York and YUDC were given notice of the appeal and an opportunity to participate throughout. As a first step, the Adjudicator sent a Notice of Inquiry, dated October 30, 2017, to all parties, and sought representations from York and YUDC.
[17] The Notice of Inquiry included a summary of the history of the access request and decision, as well as the mediation, and the issues in the appeal. The Notice of Inquiry also included a discussion of the process for IPC appeals, and listed issues on which the Adjudicator was requesting representations.
[18] Importantly, the Notice of Inquiry listed the anticipated issues on the inquiry as the application of the exemptions in ss. 17 and 18 of FIPPA (third-party information and economic and other interests), and sought representations on the issue of the application of those exemptions. The Notice of Inquiry did not list the issue of custody or control by York of the four remaining records at issue as an anticipated issue on the appeal.
[19] In the October 30, 2017 cover letters sent with the Notice of Inquiry to all parties, the Adjudicator stated: “I am enclosing a Notice of Inquiry which summarizes the facts and issues in the appeal. If you believe there are additional factors which are relevant to this appeal, please refer to them” (emphasis added).
[20] Thus, as a first step in the appeal, the Adjudicator advised both York and YUDC that the issues in the appeal, as she saw them, were the application of the exemptions in ss. 17 and 18 of the FIPPA, and requested their submissions. She invited both York and YUDC to raise any other factors they believed to be relevant to the appeal. Neither York nor YUDC at any point during the inquiry raised the issue of whether the four records still at issue were in the custody or under the control of York.
[21] In its submissions to the Adjudicator on the inquiry, York addressed the issues of the application of the exemptions in s. 17 and s. 18. York did not take the position in its submissions that the four documents at issue were not under its control and thus not subject to FIPPA. YUDC did not make any new submissions in the IPC appeal process, but advised the adjudicator by phone, later confirmed by email, that its position was that York’s decision should be upheld.
[22] The Adjudicator subsequently requested submissions from the requesters, and also requested and received a further reply submission from York.
[23] In a decision rendered January 30, 2019, with reasons reported at 2019 8591, the Adjudicator ruled that neither of the exemptions relied on by York to withhold the records at issue applied. The adjudicator held that the mandatory s. 17(1) exemption did not apply to the records at issue because neither York nor YUDC had made the required evidentiary showing of reasonable expectation of the types of harms from disclosure listed in s. 17(1). Similarly, for the discretionary exemption in s. 18(1)(c), the adjudicator found that York had not made the required evidentiary showing of the type of harm covered by s. 18(1)(c). The adjudicator ordered disclosure of the five records then at issue.
[24] I note that the issue of the application of the ss. 17(1) and 18(1) exemptions is not before this court on review, as neither YUDC nor York has sought review of that aspect of the IPC Order.
[25] After the Adjudicator rendered her decision, YUDC and York sought a reconsideration of her decision pursuant to s. 18 of the IPC Code of Procedure. Section 18 permits an IPC adjudicator to reconsider an order or other decision where it is established that there was a fundamental defect in the adjudication process; some other jurisdictional defect in the decision; or a clerical error, accidental error or omission, or other similar error in the decision. By the time of the reconsideration request, only four records were still in dispute, as record 4 had been disclosed in accordance with the January 30, 2019 decision.
[26] In the application for reconsideration, both YUDC and York made the submission that the records at issue were not in the custody or under the control of York within the meaning of s. 10(1) of FIPPA, and as such, were not subject to FIPPA. The basis for the submission was the assertion that there was an error by staff of York in including the four documents as responsive to the request, because York’s then Vice-President Finance and Administration also sat on the Board of Directors of YUDC, and kept his YUDC documents in his York office.
[27] In an order rendered on February 14, 2020, the Adjudicator ruled that neither York nor YUDC had established that grounds existed to reconsider the initial order under s. 18.01 of the IPC Code of Procedure, and denied the reconsideration request. In coming to that conclusion, the Adjudicator found that York and YUDC had not shown that the records at issue were not “under the control of” York, within the meaning of s. 10 of FIPPA. I discuss the reasons of the Adjudicator for denying the reconsideration request in more detail in the analysis below.
[28] York and YUDC now seek review of the Adjudicator’s order to deny the request for reconsideration.
Issues raised in the review
[29] The applicants raise two central issues in the applications for judicial review:
(i) Did the Adjudicator err in her interpretation and application of the concept of whether records are “under the control of” an institution subject to FIPPA, within the meaning of s. 10(1)? In particular, did the Adjudicator err in failing to apply principles of corporate law in assessing whether the four records were under control of York, and did she err in failing to find that that York did not have control of the four records at issue because YUDC was a separate corporate entity from York?
(ii) Did the Adjudicator err in her interpretation of the threshold for granting reconsideration, including in placing the onus on York and YUDC to show, in the context of a reconsideration request, that the four records were not under control of York?
Standard of review
[30] YUDC and York submit that the standard of review on the issue of the interpretation and application of s. 10(1) of FIPPA is correctness. They submit the issue raises a question of law of central importance to the legal system that requires a single correct answer, that of separate corporate personality.
[31] I disagree. The analysis of standard of review starts with a presumption that reasonableness is the applicable standard. In order for an exception to the presumptive reasonableness standard of review to apply to a question of law, the issue must be a general question of law of central importance to the legal system as a whole. The fact that a question touches on an important issue is not sufficient to fall into this category of correctness review. Rather, the question must have broad applicability to the legal system as a whole, beyond the particular context in the review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paras. 16-17, 23, 58-62.
[32] The issue of the interpretation and application of whether records are “in the custody or under the control of” an institution in s. 10(1) of FIPPA is a question of statutory interpretation and application of the IPC’s home statute. Although the nature of the relationship between YUDC and York was a factor that the Adjudicator considered in her decision, she considered the nature of the relationship as one factor in the assessment of all of the circumstances in the context of interpreting and applying s. 10(1) of FIPPA. Further, the Adjudicator’s consideration of the relationship between YUDC and York was limited to the context of the particular records at issue in the access request, not the relationship more broadly between YUDC and York. The Adjudicator’s decision does not make general pronouncements about the law in relation to separate corporate entities, nor does it have application outside of the access to information context: Brockville (City) v. Information and Privacy Commissioner, Ontario, 2020 ONSC 4413, 3 M.P.L.R. (6th) 222 (Div. Ct.) at paras. 24-25.
[33] Accordingly, the presumptive standard of review of reasonableness applies to the issues about the interpretation and application of s. 10(1) of FIPPA in these applications.
[34] Neither York nor YUDC made specific submissions about the standard of review applicable to considering the denial of a request for reconsideration, with the exception that YUDC made submissions in relation to the burden of proof applied by the Adjudicator as it related to the assessment whether the records were under the control of York within the meaning of s. 10(1) of FIPPA. YUDC submits that the question of the onus of proof applied by the Adjudicator in the Reconsideration Order is an issue of central importance to the legal system as a whole because in this case the central issue in the reconsideration request related to the IPC’s jurisdiction, and thus the correctness standard of review should apply.
[35] I do not accept this submission. As I explain in more detail below, the issue in relation to the onus of proof relates solely to the onus imposed in the context of an application for reconsideration under the IPC Code of Procedure. This issue is limited to the access to information context, and further limited to the context of a party seeking reconsideration after an order has been made by an adjudicator. This issue involves the IPC interpreting its own Code of Procedure. It raises no issue of central importance to the legal system. The standard of review is reasonableness. I note as well that in a pre-Vavilov decision, the Ontario Court of Appeal recognized that reconsideration under the IPC Code of Procedure is a discretionary decision, and that a decision of the IPC on reconsideration is entitled to deference: Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275, 433 D.L.R. (4th) 514 at paras. 124-127.
Was the Adjudicator’s interpretation and application of s. 10(1) of FIPPA unreasonable?
[36] York and YUDC submit that if this court finds that the standard of review is reasonableness, as I have found above, the Adjudicator’s decision on the reconsideration was unreasonable. York and YUDC submit that the Adjudicator erred in failing to apply principles of corporate law in assessing whether the four records were under the custody or control of York. They submit that because YUDC was a separate corporate entity from York, the Adjudicator erred in finding that York and YUDC had failed to establish that York did not have control of the four records at issue.
[37] I find that the decision of the Adjudicator that four records at issue were under the control of York within the meaning of s. 10 of FIPPA is reasonable. I begin by summarizing the law in relation to assessing whether records are under the control of an institution subject to FIPPA. I then consider the reasons given by the Adjudicator for reaching the conclusion that the four records were under the control of York.
The Relevant law
[38] In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, the Supreme Court set out a two-part test for assessing whether records are under the control of an institution subject to access to information legislation (at paras. 49-60):
(i) Do the contents of the document relate to a department matter; and
(ii) Could the government institution reasonably expect to obtain a copy of the document on request?
[39] The parties agree that the test from National Defence is the applicable test to assess whether records are “under the control” of an institution subject to access to information legislation. The test from National Defence is the test that the Adjudicator applied in this case.
[40] In National Defence, the Supreme Court recognized the importance of interpreting the “control” provisions of access to information legislation in a manner consistent with the purpose of the legislation. As a result, the Court held that “the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information” (at para. 54). In light of this approach, the Court provided guidance on how each of the two steps of the analysis should be approached (at paras. 55 and 56):
Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. [emphasis in original]
[41] The factual context at issue in National Defence was different that the context in this case. National Defence involved the assessment of whether records in a ministerial office (which was not subject to federal access to information legislation) were under the control of a government department (which was subject to the legislation). Although the context was different, the problem is the same as in this case – when are records possessed by an entity not subject to access to information legislation in the custody or control of an institution subject to the legislation, such that the right of access applies?[^2] The test in National Defence is contextual and requires a decision-maker to consider all of the circumstances in assessing whether records are under the control of an institution subject to the act. Thus, it is flexible enough to apply to a variety of factual contexts.
Analysis of the reasonableness of Adjudicator’s reasons and conclusion
[42] Reasonableness review finds its starting point in judicial restraint, and respects the distinct role of administrative decision-makers. A reasonable decision is one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras. 82-86, 99-135; Attorney General for Ontario v. Information and Privacy Commissioner, 2020 ONSC 5085 (Div. Ct.) at para. 17. Thus, I begin my analysis of whether the Adjudicator’s conclusion was reasonable with the reasons she gave for that conclusion.
[43] After considering the scope of the grounds for reconsideration under s. 18 of the IPC Code of Procedure, the Adjudicator turned to the meaning of a record being “in the custody or under the control of” an institution under s. 10(1) of FIPPA.
[44] The Adjudicator first discussed the legal principles applicable to determining if records are in the custody or under the control of an institution subject to FIPPA. This discussion culminated in setting out the two-part test for control in National Defence. Neither of the applicants contends that there is any error in the Adjudicator’s explanation of the statutory interpretation of s. 10(1) of FIPPA or the legal test involved in its application.
[45] The Adjudicator summarized the submissions of York, YUDC, and the professors who had made the access request in relation to custody or control.
[46] The Adjudicator then explained that she was not satisfied that there was an error in the finding implicit in her original decision that York had custody or control of the records at issue.
[47] With respect to the custody branch of s. 10(1) of FIPPA, the Adjudicator accepted that York only had “bare possession” of the records at issue. This was based on her accepting the evidence of York’s former Vice-President Finance and Administration (“VPFA”), who also sat on the YUDC board, that he kept the records at his office at York only for convenience, because YUDC did not provide him with a dedicated office in his role as board member. She also accepted that he kept the records at issue and other documents relating to YUDC in separate binders from documents relating to his role as York’s VPFA (Reconsideration Order at para. 61).
[48] Under the “control” branch of s. 10(1), the Adjudicator found that there was substantial evidence before her that York had control of the records at issue, applying the two-part test from National Defence (Reconsideration Order at paras. 62-70). In coming to that conclusion, she considered the following factors:
• She recognized that a relevant factor in the analysis was whether the records at issue were created by an officer or employee of York (the institution subject to FIPPA). She accepted that the four records at issue in this case were created by YUDC, not by York, and that this was a factor pointing away from a finding of control.
• She found that the records satisfied the first branch of the National Defence test in that they related to York’s mandate to manage and lease its real property and to have any revenues applied to achieve its objects and purposes.
• She based this finding on the fact that the records relate to the renovation of York Lanes, a building on land owned by York, and provisions of the York University Act, 1965, S.O. 1965, c. 143, relating to York’s authority to manage and lease its real property (s. 16). She noted that the York University Act, 1965 also provided that all of the income, revenues, issues, and profits of all of York’s property (such as York Lanes) “shall be applied solely to achieving the objects and purposes of the university” (s. 21). She found that York had a direct interest in the progress and outcome of the renovation of York Lanes, as evidenced by record 4 (which had been disclosed), which was a memorandum from YUDC’s Director Commercial land Use to the York Board of Governors, Land and Property Committee discussing the Shoppers Drug Mart lease and the York Lanes General lease in relation to the long-term improvements to York Lanes.
• She noted that YUDC was created to assist York with the planning and development of York’s lands.
• She considered that if York had planned and developed York Lanes itself, without contracting out the work to YUDC, there would be no question that records in relation to the development would be within York’s custody and control, and subject to access request under FIPPA.
• She found that York could not divest itself of responsibility and accountability for records directly related to its statutory mandate by choosing to create a corporate entity to discharge its mandate to manage its real property in aid of achieving its objects and purposes. In this respect, relying on the decision of Ontario (Criminal Code Review Board) v. Doe, 1999 3805, 47 O.R. (3d) 201 (C.A.), she found that York could not avoid the application of FIPPA by entering into an arrangement with YUDC to assist it in carrying out an aspect of York’s statutory mandate.
[49] Based on these factors, the Adjudicator was satisfied that York could reasonably expect to obtain a copy of the four records at issue from YUDC on request.
[50] The Adjudicator also considered gaps in the records before her. She noted that a relevant factor in considering the issue of control is whether there are any provisions in any contracts between the institution subject to FIPPA and the entity in possession of the records which might shed light one way or the other on the institution’s right to obtain a copy of the records if requested. In this case, the Adjudicator had not been provided with any contractual or other documents setting out the terms upon which YUDC arranged for the renovations at issue, or addressing one way or the other York’s right to obtain documents from YUDC relating to the renovations of the bookstore. She also noted a gap in the record relating to the role of officers of York on the YUDC board. She noted that YUDC is a wholly-owned subsidiary of York, and it is mandated that five officers of York sit on YUDC’s board, and that at present only three of the eight board members of YUDC were independent of York. The submissions before her did not address what control the five officers of York who sat on the YUDC board exercised over YUDC’s organization. In the context of the burden on a party seeking reconsideration to establish one or more grounds for reconsideration is met, she found that it was up to York or YUDC to put forward all the necessary evidence to establish a ground for reconsideration, and this gap in the evidence was a factor in her finding that there were not grounds for reconsideration (Reconsideration Order at paras. 38, 67, 68).
[51] Based on reviewing the Adjudicator’s reasons, and the record before the court, I find that her decision is reasonable. She used the correct law for the scope of the control test under s. 10 of FIPPA, the test set out in National Defence. She then applied the relevant law to the facts before her. The assessment that the Adjudicator was required to make on the control issue pursuant to National Defence was a contextual one, considering all of the relevant circumstances. And that is what she did. She considered all relevant factors, as National Defence directs, including York’s mandate to manage its real property, the substantive content of the records at issue, the circumstances in which they were was created, and the nature of the relationship between the York (the institution subject to the Act) and YUDC (the record holder).
[52] The applicants’ submissions place significant weight on corporate law principles in relation to separate corporate entities. However, their submissions misconstrue the effect of the Adjudicator’s order. The Adjudicator accepted the separate corporate personality of YUDC. At paragraph 45 of her reasons, in summarizing the applicants’ submissions, she stated as follows:
The university and the affected party stress that they are separate entities. I agree, and I will not set out the parties’ representations on that issue in any detail. The issue is whether the university has custody or control of the records at issue, notwithstanding the fact that the affected party and the university are separate entities.
[53] The Adjudicator did not reason that because YUDC was a wholly-owned subsidiary of York, therefore York had control over the records at issue. Rather, her analysis was based on considering all of the relevant circumstances, as set out above. She referred to the fact of YUDC being wholly owned by York, and the make-up of YUDC’s board in the context of pointing to gaps in the records before her. It was one factor referred to among several factors in her contextual analysis.
[54] I accept that, the fact that YUDC is a wholly-owned subsidiary of York is not sufficient to establish custody or control by York of records in the possession of YUDC. The fact that a corporation is a wholly-owned subsidiary of an institution to which FIPPA applies is not sufficient to establish that the institution has custody or control of the corporation’s records – whatever the make-up of the corporation’s board. But that is not the analysis that the Adjudicator engaged in in this case.
[55] It is important not to overstate the nature of the Adjudicator’s finding. Considering all of the circumstances, as National Defence instructs, the Adjudicator found that York could reasonably expect to obtain a copy of each of the four records at issue from YUDC on request. Her finding was not a finding that York had a legal entitlement to obtain a copy of these records from YUDC, or that YUDC had a legal obligation to provide them to York. Rather, it was a finding that, considering all of the circumstances, one could reasonably expect that YUDC would provide York a copy on request. Further, the finding of the Adjudicator only applies to the four records at issue. It is not a finding that York could reasonably expect to obtain a copy of any record in possession of YUDC.
[56] The applicants submit that the Adjudicator erred in stating at paragraph 51 that law in relation to “piercing the corporate veil” was not relevant to the issue of whether York had custody or control of the records at issue. At paragraph 51, the Adjudicator stated:
The affected party [YUDC] makes lengthy submissions on the principles that corporations are distinct legal entities, the test for piercing the corporate veil and why the test for piercing the corporate veil has not been met in this case. I will not discuss these arguments as they are not relevant to the issue of whether the university has custody or control of the records.
[57] The applicants’ submission reads this passage as if it said that the fact that YUDC is a separate corporation from York is not relevant.
[58] With respect, the applicants are misconstruing what the Adjudicator stated at paragraph 51, and taking it out of context. The Adjudicator was not saying that the fact that YUDC was a separate corporate entity from York was irrelevant to the custody or control analysis. She was saying that test for piercing the corporate veil was not relevant, because that is a different legal issue from whether the four records were under the control of York within the meaning of s. 10(1) of FIPPA, despite YUDC being a separate corporate entity. This is clear when paragraph 51 is read in the context of the Adjudicator’s full analysis. At paragraph 45, she expressly accepted as a fact that York and YUDC are separate entities. She then stated: “The issue is whether the university has custody or control of the records at issue, notwithstanding the fact that the affected party [YUDC] and the university are separate entities” (emphasis added). In her analysis of whether the custody or control test was met for the four records at issue, the Adjudicator acknowledged and considered that YUDC was a separate corporation as part of her analysis.
[59] Simply, put, the fact that York and YUDC are separate legal entities, and that only York is an institution covered by FIPPA is why an analysis of whether York had custody or control of the four records at issue was required. The fact that they are separate legal entities is relevant to the control analysis, but it is not determinative. Nor was it necessary for the Adjudicator to apply the body of law relating to piercing the corporate veil in her assessment of whether the four records were under the control of York.
[60] The applicants submit that the Adjudicator erred in not following the approach in the British Columbia decision of Simon Fraser University v. British Columbia (Information and Privacy Commissioner), 2009 BCSC 1481, 6 Admin. L.R. (5th) 136 at para. 81, aff’d 2011 BCCA 334, 339 D.L.R. (4th) 32, and other British Columbia decisions which followed the reasoning similar to Simon Fraser. In the Simon Fraser case, the British Columbia Supreme Court held that the British Columbia Information and Privacy Commissioner (“BC IPC”) had erred in not applying common law principles related to piercing the corporate veil in considering whether records held by a corporate subsidiary of a university were under the control of the university and thereby subject to access to information legislation.
[61] The Simon Fraser decision is different from the current case. In Simon Fraser, the BC IPC had held that all records in the possession of the corporate subsidiary SFUniventures were under the control of Simon Fraser University based a finding by the Information Commissions that the university and SFUniventures should be treated as “one entity”, and that SFUniventures was “wholly within [the university’s] domination” (at para. 71, quoting from the BC IPC decision). Thus, it was a finding that the two entities were one. That was not the reasoning of the Adjudicator in this case.
[62] In this case, the Adjudicator did not reason that solely because YUDC is a wholly-owned subsidiary of York the four records were in York’s control. Rather, as I have outlined above, the Adjudicator in this case engaged in a contextual analysis of all of the relevant factors in coming to her conclusion. Further, the Adjudicator’s conclusion was not that York had control of all of YUDC’s records. Rather, it was a conclusion that given the subject-matter of the records at issue, York’s statutory mandate to manage its real property, and the nature of the relationship between York and YUDC, York had control of the four records at issue.
[63] I note as well that Simon Fraser was decided before both National Defence and Vavilov. The British Columbia Supreme Court in Simon Fraser did not have the benefit of the Supreme Court’s contextual approach to custody or control of records in the access to information context in National Defence. Further, the British Columbia Supreme Court in Simon Fraser applied a correctness standard of review, which I have found above is not the appropriate standard of review in this case.[^3]
[64] Further, without commenting on the correctness of the Simon Fraser decision on the record before the court in that case, the notion that the interpretation and application of the concept of custody or control of records under s. 10(1) of FIPPA should be determined by common law principles of corporate law is an uneasy fit with the modern rule of statutory interpretation enunciated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 837, and with both the pre- and post-Vavilov approach to a reviewing court considering a specialized tribunal’s interpretation of its home statute.
[65] York and YUDC also submit that the Adjudicator erred in not following the conclusion in another IPC order, PO-2738, reported at 2008 68864, involving York and a different corporate entity (although they acknowledge that IPC adjudicators are not bound by previous IPC orders). In that case, a different adjudicator found that records of the York University Foundation, a corporate subsidiary of York, were not in the custody or control of York.
[66] I find that the fact that the Adjudicator reached a different conclusion on the record before her than was reached in Order PO-2738 does not render her decision unreasonable. Importantly, in Order PO-2738, the control issue was framed as whether all of the records of the subsidiary corporation were under the university’s control. By contrast, the Adjudicator in this case focussed her assessment of the control issue on the question of whether the particular four records at issue were under control of York. As I have explained above, the Adjudicator reasonably concluded that the four records were under control of York, taking into consideration all of the circumstances, including York’s statutory mandate to manage and lease its property and use the proceeds to achieve its statutory objects, the subject-matter of the records relating to that mandate, and the nature of the relationship between York and YUDC.
[67] The control analysis from National Defence is contextual and fact-specific. It is in the nature of a contextual test that different results will sometimes be reached in different cases where, although there is some factual similarity, the facts of two cases are never identical. The Adjudicator in this case explained at paragraph 69 of the Reconsideration Order why she did not reach the same result as in Order PO-2738. I find no error in her reasons for reaching a different result. Further, this court has recognized that a tribunal’s decision will not be unreasonable for not following a previous tribunal decision in similar circumstances, where the tribunal provides a reasoned explanation for reaching a different result: Brockville at para. 41. This is particularly so in the context of these applications for review, where the control issue was raised in the context of a request for the discretionary remedy of reconsideration (which I discuss further below).
[68] The Adjudicator applied the correct legal test from National Defence. She considered all of the circumstances, and made the finding that York could reasonably expect to obtain a copy of the four records at issue from YUDC, and thus had control over the records at issue. On this basis, she found that neither of the applicants had established grounds for reconsideration. I am satisfied that this finding is reasonable.
Was the Adjudicator’s approach to reconsideration unreasonable?
[69] York and YUDC submit that the Adjudicator erred in her interpretation of the threshold for granting reconsideration. In addition, YUDC submits that the Adjudicator erred in placing the onus to show that the four records were not under the control of York on York and YUDC. As I have set out above, I find that these issues are reviewable on a standard of reasonableness.
[70] This issue is related to the issue of the interpretation and application of the custody or control test in s. 10(1) of FIPPA, in the sense that the substantive issue on the reconsideration was the custody or control test, but the procedural mechanism to access reconsideration was for the applicants to show that they met one of the grounds for reconsideration. Thus, the IPC’s s. 18 allowing for reconsiderations was the means by which York and YUDC raised the s. 10(1) issue. I separate out the analysis of this issue for purposes of clarity.
[71] Sections 18.01 and 18.02 of the IPC Code of Procedure provide as follows:
Grounds for Reconsideration
18.01 The IPC may reconsider an order or other decision where it is established that there is:
(a) a fundamental defect in the adjudication process;
(b) some other jurisdictional defect in the decision; or
(c) a clerical error, accidental error or omission or other similar error in the decision.
18.02 The IPC will not reconsider a decision simply on the basis that new evidence is provided, whether or not that evidence was available at the time of the decision.
[72] York and YUDC relied on all three branches of s. 18.01 in their request for reconsideration. In the Reconsideration Order, the Adjudicator considered each subsection. I will address the Adjudicator’s consideration of each subsection in the order followed in the Adjudicator’s reasons: (a), (c), and then (b).
[73] Before turning to each subsection of s. 18.01 of the IPC Code of Procedure, I underline that a decision whether or not to grant reconsideration is discretionary, and is owed deference on review: Barker at paras. 124-127; Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange, 2021 ONSC 528 (Div. Ct.) at paras. 17-19.
[74] With respect to s. 18.01(a), which is based on “a fundamental defect in the adjudication process”, the Adjudicator held as follows (at para. 22 of the Reconsideration Order):
Section 18.01(a) refers to a fundamental defect in the adjudication process. A fundamental defect would be a breach of procedural fairness, such as a party not being given notice of an appeal or not being given an opportunity to provide submissions during the inquiry [Citing in a footnote IPC Order PO-3960-R]. Neither the university nor the affected party has raised any breach of procedural fairness, and I am not satisfied that there was a defect in the adjudication process in this case. The parties in this appeal were given notice of the appeal and were given an opportunity to provide submissions during the inquiry. The miscommunication between and within the affected party and the university does not amount to a defect in the adjudication process.
[75] I find that the Adjudicator’s interpretation of s. 18.01(a) as applying to breaches of procedural fairness during the IPC inquiry and appeal process is reasonable, based on both the text of s. 18.01(a), and the context of the rest of s. 18.01. The language in subsection (a) of “a fundamental defect in the adjudication process” (emphasis added) speaks to procedural fairness. Further, because s. 18.01(b) addresses jurisdictional defects, it is reasonable to read s. 18.01(a) as not addressing jurisdictional defects.
[76] I further find no error in the Adjudicator’s conclusion under s. 18.01(a) that none of the issues raised by York or YUDC on the reconsideration established a breach of procedural fairness. Both York and YUDC were given procedural fairness during the inquiry in the form of notice and an opportunity to provide submissions. Thus, the Adjudicator reasonably found that neither York nor YUDC had established grounds for reconsideration under s. 18.01(a).
[77] With respect to s. 18.01(c), which is based on a clerical error, accidental error, or other similar error in the decision, the Adjudicator held as follows (at paras. 23-24 of the Reconsideration Order):
Section 18.01(c) refers to a clerical error, accidental error or other similar error in the decision. A clerical error, accidental error or other similar error would commonly be a typographical error in the decision or a misplaced word, such as “not”, in the decision. It is an error that generally originates with this office rather than with a party, and is usually obvious to the reader.
I understand that both the university and the affected party argue that a clerical error or accidental error occurred in Order PO-3922. They argue that the clerical error or accidental error was the university’s implicit position that it has custody and control of the records at issue. In my view, this is not a clerical error or accidental error in the order itself. As such, I am not satisfied that an accidental error or clerical error has occurred.
[78] I find that the Adjudicator’s interpretation of s. 18.01(c) is reasonable, in particular based on the text of the provision. The section speaks to a clerical, accidental, or similar error “in the decision”. I find that the Adjudicator reasonably interpreted the qualifier “in the decision” in s. 18.01(c) as limiting its application to errors originating with the IPC, in particular, errors in the decision, as the section states.
[79] The clerical or accidental errors put forward by York and YUDC, both in the reconsideration request and before this court, involve the asserted error that the assistant of the then VPFA of York, who was also a director of YUDC, mistakenly comingled documents that he possessed as a board member of YUDC with documents that he possessed as VPFA of York, and the failure of York to assert in the earlier proceedings that the records at issue were not in its custody or control. I find no error in the Adjudicator’s conclusion that these asserted errors were not clerical, accidental, or similar errors “in the decision”. Thus, the Adjudicator reasonably found that neither York nor YUDC had established grounds for reconsideration under s. 18.01(c).
[80] York relies on the decision of this court in Ontario (Employment Standards Officer) v. Metro International Trucks Ltd., 1996 12481, 28 O.R. (3d) 67 (Div. Ct.), in support of the submission that the Adjudicator erred in not granting the reconsideration request. I find that the circumstances in Metro International Trucks were different than in this case. In Metro International Trucks, the tribunal had refused to grant reconsideration on the basis that it did not have jurisdiction to reconsider a decision and was functus officio, in circumstances where there was no legislation or rule permitting reconsideration. In those circumstances, this court held that the tribunal erred in finding that it had no jurisdiction to grant reconsideration. In this case, the Adjudicator accepted that she had jurisdiction to grant reconsideration under the IPC Code of Procedure. Indeed, she referred to the leading Supreme Court of Canada decision on the issue, Chandler v. Alberta Assn. of Architects, [1989] 2 S.C.R. 848, 1989 41, and to Metro International Trucks (Reconsideration Order at para. 27). However, she exercised her discretion not to grant the requested reconsideration. I see no basis to interfere with her exercise of discretion, which was reasonable and considered all of the circumstances before her as well as the legislative context.
[81] In any event, the Adjudicator’s conclusion that the grounds for reconsideration in s. 18.01(a) and (c) were not established had no practical effect, because the Adjudicator accepted that the custody or control issue was capable of amounting to a jurisdictional defect in the decision under s. 18.01(b). Based on that finding, she considered the substance of York and YUDC’s submission in relation to reconsideration – that York did not have custody or control of the four records at issue – and rejected it. As I have outlined above at paragraphs 36-68, I find that the Adjudicator’s decision on the control issue was reasonable.
[82] This brings me to York and YUDC’s submission in relation s. 18.01(b) and the onus on a reconsideration application in relation to the issue of whether the four records at issue were under control of York within the meaning of s. 10(1) of FIPPA. Section 18.01(b) addresses “some other jurisdictional defect in the decision”.
[83] The fundamental distinct argument made by York and YUDC in relation to s. 18.01(b) is that the s. 10(1) arguments raised by York and YUDC relate to the IPC’s jurisdiction over the records, and as such, they submit, the Adjudicator erred in the Reconsideration Order in placing the onus on York and YUDC to show that the four records were not under control of York.
[84] I will not quote all of the Adjudicator’s reasons in relation to the onus as they are somewhat lengthy, and intertwined with her analysis of s. 10(1) of FIPPA, which I have addressed above. The key components of her analysis of the onus were as follows:
• York did not decide the initial access request on the basis that the records were not in its custody or control, but rather found that the ss. 17(1) and 18(1) exemptions applied to exempt the records from disclosure (Reconsideration Order at para. 13).
• Neither York nor YUDC raised the issue of whether York had custody or control of the records at issue in the original IPC appeal. She found that York and YUDC “had ample opportunity” to raise the custody or control issue in the appeal, and did not do so. She further found that the fact that York in its submissions took the position that the ss. 17(1) and 18(1) exemptions applied to the records at issue was implicitly a position that it had custody or control of the records (since the structure of FIPPA is such that there is no need to claim exemptions for records not in the custody of or under the control of an institution subject to FIPPA because FIPPA does not apply if records are not under the custody or control of an institution) (Reconsideration Order at paras. 14, fn 2, 26).
• She found that the reconsideration process is not intended to be a forum for parties to reargue their cases, relying on previous IPC orders on this issue as persuasive. One of the factors discussed in the previous orders she referred to is the importance of finality of proceedings before administrative tribunals (Reconsideration Order at paras. 27-29).
• She accepted that an error with respect to the issue of the institution’s custody or control of the records at issue could amount to a jurisdictional issue under s. 18.01(b). However, she held that since the custody or control issue was raised for the first time on the reconsideration request, and not during the appeal, York and YUDC bore the onus to show that the records were not in the custody of or under the control of York. She held that allowing the parties to raise the issue for the first time on reconsideration, and treat it as if it had been raised earlier, would undermine the principle of finality of the IPC’s orders (Reconsideration Order at paras. 30-32).
• She then explained why she found that York and YUDC had not established that the records were not in the custody or control of York (Reconsideration Order at paras. 32-71).
[85] I find that the Adjudicator did not err in allocating the onus to York and YUDC to show that the records were not in the custody of or under the control of York, in light of the context of the issue being raised in a request for reconsideration. The Adjudicator’s decision that, in the context of this issue being raised for the first time in the reconsideration request, the onus lay with York and YUDC to show that the records at issue were not in the custody or control of York is reasonable.
[86] The parties disagree on where the onus in relation to custody or control of the records under s. 10(1) of FIPPA would lie if the issue had been raised in the initial IPC appeal. The IPC position is that previous IPC orders place the onus on an institution to show that records subject to an access request are not in the custody of or under the control of the institution. The IPC submits that the reason for allocating the burden to the institution is that the institution has the information relevant to assessing whether the records are in the custody or control of the institution (i.e., a requester has no way to make this showing, since they have not seen the records and likely know nothing about how they are kept). Counsel for YUDC took the position that since custody or control of records by an institution is a threshold to the right of access existing, it must be established on a balance of probabilities that the records are in the custody or control of an institution subject to FIPPA. However, this issue was not fully argued by the parties, as it arose from questions from a member of the panel during oral argument. It is not necessary in this case for this court to decide the issue of where the onus would lie on the issue of custody or control if it had been raised at first instance in the IPC inquiry.
[87] The Adjudicator found that s. 18 of the IPC Code of Procedure places the onus on the party seeking reconsideration to show that there are grounds within one or more of s. 18.01(a), (b), or (c) to grant the reconsideration.
[88] I find that this is a reasonable interpretation of where s. 18 places the onus, based on both the text of s. 18.01, and the nature of a request for reconsideration.
[89] The opening words of s. 18.01 state: “The IPC may reconsider an order or other decision where it is established that there is [one of the grounds in (a), (b), or (c)]”. The underlined passage is reasonably interpreted to place the onus on the party seeking reconsideration to show that one of the grounds in s. 18.01(a), (b) or (c). Further, the context of a reconsideration also supports that the party seeking the reconsideration bears the onus to show that there are grounds for relief. Our system of justice, both in the courts and administrative tribunals, values efficiency of litigation, and finality. Where a party is seeking reconsideration of a decision, as here, which was made with the benefit of notice, an inquiry, and an opportunity to make submissions, the interests of efficient conduct of litigation and finality support an interpretation of this section as allocating the onus on a reconsideration to the party seeking reconsideration. This is an issue of interpretation by the tribunal of its own rules of procedure, as they apply to an issue under its home statute. The Adjudicator’s decision is owed significant deference in this context.
[90] Thus, I find that the Adjudicator’s decision that the onus was on York and YUDC to show that s. 18.01(b) (and indeed any of the grounds in s. 18.01) applied was reasonable. And as I have addressed above, her further conclusion that York and YUDC had not met their onus to show that the records were not in control of York was reasonable. The process before the IPC was fair, and the applicants have not shown any error by the Adjudicator.
Conclusion
[91] For these reasons, the applications are dismissed.
[92] As agreed by the parties, there is no order as to costs.
Copeland J.
I agree _______________________________
Lederer J.
I agree _______________________________
Matheson J.
Released: April 1, 2022
CITATION: YUDC v. Information and Privacy Commissioner, 2022 ONSC 1755
DIVISIONAL COURT FILE NOS.: 133/20;134/20
DATE: 20220401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, MATHESON & COPELAND JJ.
BETWEEN:
YORK UNIVERSITY DEVELOPMENT CORPORATION Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, YORK UNIVERSITY and JOHN DOE/JANE DOE REQUESTERS Respondents
AND BETWEEN:
YORK UNIVERSITY Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, YORK UNIVERSITY DEVELOPMENT COPORATION and JOHN DOE/JANE DOE REQUESTERS Respondents
REASONS FOR JUDGMENT
Released: April 1, 2022
[^1]: As I have noted above, in both IPC decisions, the four records at issue are referred to as records 2, 3, 6, and 11. In York’s notice and opportunity to make submissions to YUDC as a third party, the index of records is numbered differently than in York’s final decision on the access request sent to the requesters. The reasons for the different numbering are twofold. First, York only asked YUDC for submissions on records containing third-party information. Some of the documents that York refused to disclose to the requesters were refused on the basis of solicitor-client privilege and did not have to do with YUDC. Second, after receiving submissions from YUDC, York agreed that three documents under consideration in the access request were not responsive, and removed them from the index of responsive records. I point out the differences in the numbering systems because in both YUDC’s submission to York dated April 1, 2016, and the letter from York to YUDC dated April 23, 2016, the numbering used for the records is different than in York’s decision letter dated April 23, 2016 sent to the requesters, and in the IPC decisions (which uses the numbering system from the index in York’s decision letter sent to the requesters). Throughout these reasons, I refer to the four records using the numbering used in the IPC decisions (and in York’s decision to the requesters) as records 2, 3, 6, and 11. For purposes of cross-referencing, these records are referred to in the York letter requesting submissions from YUDC dated March 24, 2016, and YUDC’s response dated April 1, 2016 as, respectively records 2, 3, 10, and 16 (i.e., record 10 is ultimately renumbered 6, and record 16 is ultimately renumbered 11).
[^2]: Subject to any applicable statutory exemptions.
[^3]: Subsequent authority from the British Columbia Court of Appeal holds that reasonableness is the appropriate standard of review for the section of the British Columbia access to information legislation analogous to s. 10 of FIPPA: University of British Columbia v. Lister, 2018 BCCA 139, 9 B.C.L.R. (6th) 386 at paras. 22-24.