CITATION: The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario, 2022 ONSC 6227

DIVISIONAL COURT FILE NO.: DC-22-00000020-0000

DATE: 2022/11/07

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Sachs, R.D. Gordon JJ.

BETWEEN:

The Corporation of the City of Mississauga

Applicant

– and –

Information and Privacy Commissioner of Ontario, John Doe, Requestor

Respondents

Daron L. Earthy, for the Applicant

Linda Hsaio-Chia Chen, for the Respondent, Information and Privacy Commissioner of Ontario

Spencer Bass, for the Respondent, John Doe Requestor

Jane Doe and Joan Doe, Intervenors, on their own behalf

HEARD at Brampton by videoconference: October 17, 2022

Sachs and R.D. Gordon JJ.

Overview

[1] The Applicant, the City of Mississauga, seeks an order quashing Order MO-4176 of the Respondent, Information and Privacy Commissioner (“IPC”), in which the Applicant was ordered to disclose to John Doe Requestor (the “Requestor”), an electronic recording spreadsheet form containing information about all of the voters who received a ballot in Ward 7 in the October 22, 2018 municipal election in the City of Mississauga (the “Requested Record”). There is no issue that the Requested Record contained personal information of over 11,000 residents in Ward 7. This information consisted of each resident’s full name, address, ward, voter ID number, type of occupancy, school designation, the date they attended a polling station and received a ballot, and which polling station they attended.

[2] The IPC found that the disclosure of the Requested Record was required under the Municipal Freedom of Information and Privacy Act, R.S.O. 1990, c. M.56, as amended (“MFIPPA”) as it met one of the exceptions to the personal privacy exemption that prohibits disclosure of another individual’s personal information. This exception requires disclosure of personal information where “an Act of Ontario or Canada…expressly authorizes the disclosure.” The IPC found that the Municipal Elections Act, 1996, S.O. 1996, C. 32 (“MEA”) expressly authorized the disclosure of the Requested Record.

[3] The City’s application was supported by the Intervenors, who are two Ward 7 residents that are affected by the IPC decision.

[4] For the reasons that follow we would dismiss the application for judicial review.

Background

Events Leading to the IPC Decision

[5] The Requestor is a resident of Ward 7 and was a candidate for city councillor in the October 22, 2018 Mississauga municipal election.

[6] The Requested Record was prepared by the clerk from other records prepared pursuant to the clerk’s role under the Municipal Elections Act.

[7] The Requestor (along with other Ward 7 councillor candidates) was given access to a list that contained the same information as the Requested Record, but only for 3,465 Ward 7 voters who voted on advance polling days or on election day prior to 2pm. On November 20, 2018, approximately one month after the election, the Requestor requested access to the information of the remaining 7,603 voters, who voted after 2 p.m. on election day.

[8] On December 6, 2018, the City provided its response, denying access to the Requested Record because it contained personal information and advising the Requestor to make a request under MFIPPA.

[9] On December 31, 2018, the Requestor appealed the denial to the IPC. The matter then proceeded through the IPC proceedings and the IPC decision was released on March 18, 2022.

The IPC Decision

[10] The IPC began its decision by noting that s. 36(1) of MFIPPA gives individuals a right of access to their own personal information held by an institution. However, s. 38(b) provides that where a record contains personal information of both a requestor and another individual, and disclosure of the information would be an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requestor.

[11] Any information that falls within any of the subparagraphs of s. 14(1) of MFIPPA is not an “unjustified invasion” of personal privacy and therefore, the information is not exempt under s. 38(b). One of the subparagraphs of s. 14(1) is subparagraph (d), which provides:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, under an Act of Ontario or Canada that expressly authorizes the disclosure.

[12] The issue before the IPC was whether s. 88(5) of the MEA expressly authorizes the disclosure of the Requested Record. The Requestor argued that it did. The City and the other affected parties submitted that it did not. Section 88(5) states:

Despite anything in the Municipal Freedom of Information and Protection of Privacy Act, documents and materials filed with or prepared by the clerk or any other election official under this Act are public records and, until their destruction, may be inspected by any person at the clerk’s office at a time when the office is open.

[13] Section 88(1) and (2) of the MEA provide that the documents referred to in s. 88(5) need only be retained for 120 days and after that they can be destroyed. Section 88(6) makes it clear that s. 88(5) does not apply after the 120-day period has expired. The IPC specifically found that this provision was not applicable because the Requestor had made his request well before the expiry of the 120-day period. Section 88(7) gives a party inspecting any records referred to in s. 88(5) the right to make extracts from them and to make copies of them.

[14] Before the IPC the City argued that in order to qualify as an Act that “expressly authorizes” disclosure under s. 14(1)(d), the Act cannot contain limitations regarding the use or the subsequent publication of the information that is disclosed. The MEA does contain such limitations. Most notably s. 88(10) prohibits a person who obtains any information pursuant to s. 88(5) from using it except for election purposes and s. 88(11) prohibits a voter’s list (which would include the Requested Record) from being posted in a public place, being posted on an Internet website or being posted through any other print or electronic medium of mass communication.

[15] The City also argued that the twin purposes of the MFIPPA – to provide a right of access and to protect the privacy interests of people whose personal information is held by public institutions - favoured non-disclosure of the Requested Record.

[16] The IPC found that s. 88(5) of the MEA did expressly authorize the disclosure of the Requested Record. In doing so it relied on the Divisional Court’s decision in Gombu v. Ontario (Information and Privacy Commissioner), 2002 53259 (ON SCDC), 59 OR (3d) 773, leave to appeal granted but appeal discontinued 2002 Carswell Ont 2874 (Gombu). In Gombu, the IPC had denied the request of a reporter to access a list of donors to municipal election candidates in electronic format. The electronic database at issue had been created from paper records in order to properly administer the donation rebate programme under the MEA. The IPC in Gombu found that the electronic database was not “required to be prepared by the clerk” under the MEA and therefore the disclosure of that database was not authorized under s. 88(5). The Divisional Court disagreed, finding that the “issue is not whether the Clerk is ‘required’ to prepare the database, but whether, as section 88(5) provides, the material is, in fact, prepared ‘under the Act’.” The Divisional Court held that the electronic database had been prepared under the MEA and therefore it was required to be disclosed. In the case at bar, the IPC found that the Requested Record was also an electronic record that had been prepared under the MEA and therefore, it too had to be disclosed.

[17] In reaching its decision the IPC made a distinction between disclosing information and the subsequent use of that information. Section 88(5) provides for the disclosure of the Requested Record and the other sections of the MEA, such as s. 88(10) and (11) put limitations on the use that can be made of that information. The IPC noted that the same distinction had been made in another IPC decision. The IPC found that the limitations on use did not take the Requested Record outside the exception in s. 14(1)(d) of MFIPPA. As put by the IPC:

I find that the sections of the MEA relied upon by the city restrict the use and further publication of the voter spreadsheet and not access to or disclosure of it.

Standard of Review

[18] All parties, except the Intervenors, agree that the reasonableness standard should be applied in a review of the IPC’s Decision.

[19] The Intervenors submit that the IPC’s interpretation of the MEA should be reviewed on the less deferential standard of correctness, since the MEA is not the IPC’s “home statute.” In making this argument the Intervenors rely on a 2004 decision of the Divisional Court in Municipal Property Assessment Corporation v. Mitchinson, (2004) 2004 17632 (ON SCDC), 71 OR (3d) 303. Subsequent to that decision the Supreme Court found in Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1SCR 674 that where the IPC is required to interpret another statute for the narrow purpose of applying a provision of one of the IPC’s home statutes, this interpretation is “intimately connected to her core functions” (para. 27) and should be reviewed on a standard of reasonableness.

[20] In this case, the IPC was interpreting the MEA for the narrow purpose of applying s. 14(1)(d) of MFIPPA, its home statute. Therefore, its decision on this question should be reviewed on a standard of reasonableness.

Analysis

[21] The Applicant City argues that the IPC’s decision is unreasonable because (a) the Requested Record (if it had been at the polling station in paper form) would have had to be put in the ballot box and sealed after the election and, as such, is not subject to disclosure under s. 88(6.1) of the Municipal Elections Act; (b) the IPC unreasonably relied on a decision of the Divisional Court (“Gombu”) in making its decision; and (c) the Decision was unreasonable in the context of the MEA. Among other things, it was unreasonable to order disclosure of the Requested Record when any election purpose for inspecting it ended after the period for challenging the results of the election and the only purpose it serves is to give the Requestor an information advantage in the upcoming election. The City also submits that the IPC unreasonably failed to consider that the amendments to the MEA that come into force on January 1, 2023 run contrary to the result of its decision.

Is the IPC Decision Unreasonable because the Requested Record Should Have Been Treated the Same Way as the Contents of a Ballot Box?

[22] Section 55 of the MEA requires a deputy returning officer to, among other things, as soon as possible after an election, “place the ballots and all other material and documents related to the election, except the original statement of results, in the ballot box” and then to seal the ballot box and deliver it to the clerk.

[23] Section 86(6.1) states that s. 88(5) “does not entitle a person to inspect the contents of a ballot box”.

[24] According to the City and the Intervenors, while the Requested Record was not literally contained in any ballot box, it ought to be considered to be part of the contents of the ballot box for the purposes of s. 88(6.1).

[25] No one raised this argument before the IPC. Neither the City’s representations, nor its reply representations, before the IPC made any mention of s. 88(6.1). Instead, when referencing the 120-day time frame for making a request and the right to destroy a record after that time frame, the City noted in its representations that the Requestor’s access request was “submitted within 120 days of the election in question.” The only mention that the City made to the IPC of s. 88(6.1) was in relation to another access request from a different requestor for different documents that the City was responding to at the same time.

[26] The IPC Decision notes the existence of s. 55 and s. 86(6.1), but specifically states that neither section is applicable. This confirms that no one relied on these sections in making their submissions on the access request at issue in the application. The argument is being advanced for the first time on judicial review.

[27] In Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 at para. 42, this court summarized the rationale for declining to consider an issue that is raised for the first time on judicial review:

The rationale for declining to hear such an argument rests on many considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision-maker to make such decisions; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision-maker on the issue; avoiding any unfair prejudice to the responding party; and ensuring there is an adequate evidentiary record to decide the question (A.T.A. v. Alberta (Information and Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.) at paras. 22-26).

[28] All of these concerns are present in this case. There is no reason why the City could not have raised this argument before the IPC, ensuring that this Court could have had the benefit of its decision on the matter.

[29] Reasonableness review must be alive to the context before the decision-maker, including the positions and submissions of the parties. As the Supreme Court held in Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900:

[52] The Appeals Officer did not refer to s. 135(1). The foregoing argument was not made before him; it was raised for the first time before the Court of Appeal by an intervenor. The fact that the Appeals Officer did not refer to s. 135(1) in his analysis does not render his interpretation unreasonable. Administrative decision makers – and for that matter, judges – are not required, on their own account, to consider every aspect of the statutory context that might bear on their decision. In our system, the parties frame the arguments to be considered. Failure to consider a particular piece of the statutory context that does not support a decision maker’s statutory interpretation analysis will not necessarily render the interpretation unreasonable. The impact of such an omission will be case-specific and will depend on whether the “omitted aspect causes the reviewing court to lose confidence in the outcome reached.” (Citations omitted).

[30] The failure of the IPC to consider s. 55 and s. 88(6.1) does not cause us to lose confidence in its decision.

[31] For these reasons, we decline to consider the argument put forward by the City and the Intervenors that the IPC decision was unreasonable because the Requested Record should have been considered to be part of the contents of the ballot box.

Was the IPC’s Reliance on the Gombu Decision Unreasonable?

[32] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court specifically states that if there are precedents on an issue before an administrative decision maker, these will act as a constraint on what that decision maker can reasonably decide. As put by the Supreme Court at para. 112:

Any precedents on the issue before the administrative decision maker on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision has been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent.

[33] In Gombu, the Divisional Court was dealing with the interaction of s. 14(1)(d) of MFIPPA and s. 88(5) of the MEA. The same issue was before the IPC. It would have been unreasonable for the IPC to render its decision without considering and applying Gombu, unless it could be distinguished.

[34] Before us the City (and the Intervenors) take the position that the reasoning in Gombu is inapplicable to the facts in this application because of the fundamental difference between the records at issue in that case (campaign finance records) and records at issue in this application (voter lists). Included in the list of differences is the fact that the information in the former is given by consent, while the information in the latter is not.

[35] To the extent that these arguments are being raised for the first time in this Court. for the reasons given above, it is inappropriate for us to consider them. Certainly, it is inappropriate for us to find that the failure to consider arguments that were never made constitute a “gap” in the IPC reasons that undermine their reasonableness.

[36] Before the IPC the City sought to distinguish Gombu solely on the basis that the documents ordered to be disclosed under Gombu were not “fettered” by any other provisions in the MEA, whereas the documents at issue in this case were “fettered” by s. 88(10) and (11) of the MEA.

[37] The IPC considered this argument and rejected it. It found that there was a distinction to be made between the right to access and the right to use the documents at issue. Section 88(5) governed the right to access the documents at issue, while ss. 88(10) and (11) governed the right to use those documents. In doing so the IPC relied on IPC jurisprudence that had made the same distinction between the right to access and the right to use and publish. There is nothing unreasonable about relying on this distinction.

[38] In Gombu, the Divisional Court held that where documents are prepared under the MEA as contemplated by s. 88(5) of the MEA, they are a “public record and must be disclosed, notwithstanding anything in the [MFIPPA]” (Gombu, para. 16, emphasis in original). The IPC reasonably concluded that this holding applied in the case before it and the Requested Record was prepared under the MEA – a fact that the City did not contest and which could not reasonably be contested.

[39] To the extent that there is an assertion that the IPC failed to conduct its interpretative exercise by taking into account the two broad purposes of MFIPPA – providing access to public records while at the same time preventing unjustified invasions of personal privacy- we reject that argument. Reading the IPC decision as a whole it is clear that the IPC took into account that balancing and deferred to the legislative choices that had been made in that regard – namely to provide broad access to the documents in question, while at the same time providing restrictions on the use that may be made of those documents. This is clear from the following paragraphs in the IPC Decision:

[72] As the Court found in Gombu, I find that section 88(5) of the MEA explicitly overrides the privacy interests otherwise required to be considered under the Act. While section 88(5) only provides for in-person inspection by members of the public while the clerk’s office is open and does not expressly contemplate disclosure in the context of an access request, it broadly indicates that documents and materials prepared under the MEA, such as the voter spreadsheet, are intended to be available to the public. This public availability is sufficient to establish that disclosure of the voter spreadsheet in the context of an access request is “expressly authorized” by section 88(5) of the MEA. Therefore, I find that section 44(1)(d) applies and disclosure is not an unjustified invasion of personal privacy. Consequently, I find that the voter spreadsheet is not exempt from disclosure under section 38(b). (Footnotes Omitted).

[73] The city argues that the IPC should exercise its discretion under section 43(3) of the Act to order that the voter spreadsheet only be used for election-related purposes and not be shared publicly. While I appreciate the city’s concerns, based on the circumstances of this appeal, I find that it is not necessary for me to make such an order, because sections 88(10) and (11) of the MEA, along with section 9 of O Reg 101/97 already impose these conditions. The subsequent use or disclosure of information obtained under the access provisions of the Act is subject to any other restrictions imposed by law outside of the Act. Furthermore, as noted above, the appellant submits that he is requesting the voter spreadsheet for election purposes, and he is aware of the restrictions placed on its use by the MEA and O Reg 101/97.

[74] While the determination of compliance with and enforcement of the provisions of the MEA are outside of the IPC’s jurisdiction, I note that pending amendments to the MEA slated to come into effect on January 1, 2023, specifically the addition of sections 23(7) and (8), impose restrictions on election officials and certified candidates who receive copies of the voters’ list, as well as on those persons they share the voters’ list with. Section 23(7) requires a written acknowledgment from persons provided with a copy of the voters’ list that they will follow the restrictions in section 23(7) and rules in section 23(8). Another addition, section 88(7.1), prohibits that making of extracts or copies of the voters’ list under section 88(7), unless authorized by court order. I note, however, that the legislature had chosen not to put these restrictions in place at the present time. It is not the role of this office to pre-empt the legislature by prematurely imposing similar restrictions which, in any event, are already addressed in general terms by the current limitations in sections 88(10) and 88(11) of the MEA. Accordingly, I reject the city’s submission that I should order restrictions on the use of the voter spreadsheet at issue, once it is disclosed to the appellant.

[40] In these paragraphs the IPC considers whether the disclosure authorized is an unjustified invasion of personal privacy and finds that given that the disclosure is expressly authorized under the MEA, it is not an unjustified invasion of personal privacy. This analysis is consistent with the structure of MFIPPA, particularly s. 14 thereof. That section provides exceptions to the restriction on disclosing the personal information of third parties. One of those exceptions is the one at issue in this case, disclosure that is expressly authorized by an act of the legislature (s. 14(1)(d)), and the other is the exception at s. 14(1)(f), “if the disclosure does not constitute an unjustified invasion of personal privacy.” If the exception in s. 14(1)(d) applies, there is no need to consider whether the invasion is unjustified. As the IPC recognized, if the legislature authorizes the invasion, it cannot be unjustified.

[41] Further, the IPC acknowledged the concerns expressed by the City and the Intervenors in this case about the use that could be made of this information. In doing so it recognized that the Legislature had taken steps to meet these concerns – by specifically restricting the use that could be made of the information that is disclosed. These restrictions included specifying that the information cannot be used for anything other than election purposes and that it cannot be disseminated by being posted in a public place, being posted on an Internet website or being posted through any other print or electronic medium of mass communication. The IPC also recognized that there were other laws that provided for the enforcement of these use restrictions.

[42] Finally, the IPC found that the Legislature had taken further steps to restrict the use that could be made of the information. We pause here to note that the legislative choice post Gombu, was not to amend s. 88(5), thereby restricting access, but to put further restrictions on the usage of the information. The IPC found that the Legislature had chosen to delay the application of these further restrictions until January 1, 2023 and that it was not the IPC’s role to override the Legislature’s choice in that regard. These findings are reasonable.

[43] For these reasons, we find that the IPC’s reliance on Gombu was reasonable.

Is the IPC Decision Unreasonable in the Context of the MEA?

[44] The Applicant argues that the decision of the IPC is untenable in the context of the MEA for three reasons: (1) There is no compelling objective achieved by the disclosure of the final voter lists; (2) Disclosure gives an unfair and prohibited advantage to the recipient; and (3) Impending amendments to the MEA run contrary to the decision.

[45] With respect to the objective achieved by the disclosure of the final voter lists, we note that this argument was not raised before the IPC. To decide that issue in this forum without a proper evidentiary foundation and without a decision of the IPC in the first instance would be inappropriate. We also note that s. 88(5) (the disclosure section of the MEA) makes no mention of the need for an election purpose. This does not mean that the legislature ignored the requirement for an election purpose. That requirement is present. However, it is present in s. 88(10) – one of the sections that governs the use that may be made of a record that is disclosed under s. 88(5).

[46] With respect to an unfair and prohibited advantage being gained by the recipient, this argument is also raised for the first time on this application and for the same reasons will not be considered. However, we do note that the essence of this argument relies on the fact that the disclosure ordered by the IPC is being made well after the 120-day time period specified in the MEA. However, as the City acknowledged in its submissions before the IPC, the Requestor’s request for disclosure was made within that time period. It was the IPC proceedings that stretched the matter out. To accept this aspect of the City’s argument could allow municipalities to avoid their disclosure obligations simply by contesting requests for disclosure for records prepared under the MEA and then delaying any proceedings for at least 120-days – which would easily occur through the regular operation of relevant timelines.

[47] With respect to the impending amendments to the MEA, section 56(1) of the Legislation Act, 2006, S.O. 2006, c.21, Sched. F, specifically provides that the repeal, revocation or amendment of an Act or regulation does not imply anything about the previous state of the law. Having regard to this provision, it was entirely reasonable for the IPC to have determined the issues before it based upon the state of the law as it then existed.

Other Arguments Raised by the Intervenors

[48] To the extent that the Intervenors argue that the clerk erred in both the extent of the information provided to candidates during the election and by providing candidates with the list of voters who voted prior to 2 p.m. on election day, those issues are not properly before this Court. If the Intervenors object to the actions of the clerk during the election, they must pursue these concerns through other avenues.

[49] The Intervenors also base their arguments on the fact that the clerk was not required to create the Requested Record under the MEA. However, as this Court held in Gombu, s. 88(5) contains no provision stating that the record can only be disclosed if the clerk was required to create the record at issue. Section 88(5) authorizes disclosure if the record was in fact created under the MEA, not if it was required to be created.

[50] The Intervenors argue that the applicable precedent in this case was this Court’s decision in Municipal Property Assessment Corporation v. Mitchinson, (2004) 2004 17632 (ON SCDC), 71 O.R. (3d) 303 (“Mitchinson”). It is true that the Court in Mitchinson was also dealing with s. 14(1)(d) of MFIPPA. However, it was not dealing with s. 88(5) of the MEA. It was considering whether the information at issue in that case was expressly authorized under s. 39 of the Assessment Act. Section 39 of the Assessment Act contains very different language than s. 88(5) of the MEA. Furthermore, the Court in Mitchinson considered Gombu and noted the differences in the wording and context of the two provisions. It also noted the differences in the legislative purposes of the two schemes. As put by the Court in para. 19 of Mitchinson:

In Gombu, the court emphasized the importance of transparency in the democratic process, and observed that the legislative scheme under consideration “constitutes a policy that recognizes that public accountability in the election process should, where necessary, override individual privacy interests.” In contrast, there are no compelling public policy considerations that override the privacy interests at stake in the case before us.

[51] Based on Mitchinson, the Intervenors submit that there is no overriding public interest in the disclosure of the Requested Record. However, the issue that the IPC had to decide was whether s. 88(5) expressly authorized the access to the Requested Record. It was not required to go further and consider whether the public interest demanded that the record be disclosed. The Legislature, in enacting s. 88(5) has already engaged in considering and balancing the interests involved. In doing so, as the IPC recognized, it has chosen to provide broad access, while limiting use.

Conclusion

[52] For these reasons we would dismiss the application. As the successful party the Requestor is entitled to its costs of this application against the City, which we would fix in the amount of $9000.00. This is the amount the City would have claimed against the Requestor if it had been successful.

Sachs J.

R.D. Gordon J.

Aston J. (dissenting)

[53] In Gombu v. Ontario (Assistant Information and Privacy Commissioner), 2002 53259 (ON SCDC), 59 O.R. (3d) 773, leave to appeal granted but appeal discontinued 2002 Carswell Ont 2874, the Requestor, a journalist with the Toronto Star, had attended the City Clerk’s office to examine campaign finance statements filed by candidates for municipal office in the 1997 election. Those records included the names and addresses of their donors. While sorting through thousands of pages of paper records, Mr. Gombu learned that the Clerk also maintained an electronic database, containing the same information, created for the collateral purpose of administering a donation rebate program under the Municipal Elections Act (MEA) regulations.

[54] To facilitate his research into possible breaches of the contribution limits in the MEA, Mr. Gombu requested a computer diskette containing the donation information. The City admitted the paper copies in the Clerk’s office were available for inspection under s. 88(5) of the MEA but denied his request for an electronic copy.

[55] Assistant Commissioner Mitchinson upheld that decision on the basis that the diskette contained personal information about the donors that was exempt from disclosure pursuant to s. 14 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). More specifically, the Assistant Commissioner found that the exception in s. 14(d) of the Act did not apply because s. 88(5) of the MEA did not apply to the database, only to the paper copies in the Clerk’s office.

[56] Section 14(d) of the MFIPPA reads as follows:

The head shall refuse to disclose personal information to any person other than the individual to whom the information relates except …(d) under an act of Ontario… that expressly authorizes the disclosure. (Emphasis Added)

[57] Section 88(5) of the MEA reads:

Despite anything in the [MFIPPA] documents and materials filed with or prepared by the Clerk… under this act are public records and, until their destruction, may be inspected by any person at the Clerk’s office at a time when the office is open.

[58] The Divisional Court set aside the Assistant Commissioner’s decision and ordered disclosure of the database. The Court of Appeal granted leave to appeal in Gombu v Mitchinson, 2002 Carswell Ont 2874 (September 3, 2002) but apparently that appeal did not proceed.

[59] Key to the Divisional Court’s decision in Gombu is its finding that the database (not merely the paper copies filed) “was prepared under the MEA” to facilitate the Clerk’s mandated duties and therefore was a “public record” available to the public “despite anything in the MFIPPA” (paragraphs 15, 16 and 17 of Gombu).

[60] In this case, the IPC found the facts were analogous and it adopted the Divisional Court’s reasoning and conclusion. The ratio of its decision is found in paragraphs 70 and 72 of the reasons:

[70] With respect to the appellant’s right of access to the voter spreadsheet under s. 88(5) of the MEA, I find that the circumstances of Gombu are analogous to the facts before me in this appeal and I adopt the Court’s reasoning…

[72] As the Court found in Gombu, I find s. 88(5) of the MEA explicitly overrides the privacy interests otherwise required to be considered under the Act. While s.88(5) only provides for an in-person inspection by members of the public while the Clerk’s office is open and does not expressly contemplate disclosure in the context of an access request, it broadly indicates that documents and materials prepared under the MEA, such as the voter spreadsheet, are intended to be available to the public. This public availability is sufficient to establish that disclosure of the voter spreadsheet in the context of an access request is ‘expressly authorized’ by s.88(5) of the MEA.

[61] On this application both the City and the Intervenors submit that the IPC failed to address their submission that Gombu is distinguishable; that it was open to the IPC to come to an opposite conclusion and that it should have done so. I respectfully disagree with the majority (paragraphs 34-35 above) that this argument was raised for the first time in this court.

[62] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 128, the Supreme Court of Canada states “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”.

[63] From paragraph 102 of Vavilov “reasons that simply repeat the statutory language, summarize arguments made and then state a peremptory conclusion will rarely assist a reviewing court in understanding the rationale underlying a decision”. In other words, mere recitation is not justification. A decision is unreasonable if it fails to address key issues or central arguments. A peremptory conclusion is not a reason.

[64] From the perspective of the Intervenors (also representing the interests of the affected parties whose personal information is made public by the IPC’s decision) there is a world of difference between Gombu and this case.

[65] In Gombu, campaign donors made a voluntary decision to provide personal information about themselves knowing that it would be available as part of the public record. Even in 1997 donors could not make anonymous contributions to candidates. However, the personal information that appears on the Responsive Record in this case is not information that was provided voluntarily. It is information gleaned from the voters list, a list not publicly available.

[66] The result of the IPC’s decision is that conscripted personal information in the Responsive Record, not voluntarily given, will be available to any person. The only recourse for citizens who object to providing that personal information to anyone who asks for it is to take the necessary steps to be removed from the voters list and give up their democratic right to vote. That is radically different from the Gombu case in which donors chose to make donations knowing that their personal information would be public knowledge, while retaining the right to participate in the democratic electoral process.

[67] Mr. Gombu’s reason for requesting the electronic database was directly linked to ensuring transparency and accountability in the election process. In this case the requestor’s identity is (ironically) kept secret and the affected parties are not advised before, or even during, the hearing process why the person wants to access their personal information. Although the Requestor has now been anonymously identified as a candidate in the 2018 municipal election, the precedent set by the IPC decision means that any person can obtain personal information about anyone who voted in a municipal election, without having to reveal the purpose of the request for that information. The fact that the MEA limits the use a Requester can make of their personal information is hardly reassuring to them.

[68] The Intervenors also submit that times have changed dramatically in the last 20 years in a way that ought to invite a reconsideration of Gombu. Identity theft, hackers, hucksters, invasive marketing and the like have created the need for increased vigilance when it comes to private information of the nature found in the Responsive Record.

[69] The affected parties have other apparently legitimate concerns, found in the IPC’s Record of Proceeding, that are not addressed anywhere in the IPC’s reasons. One affected party, for example, represented that her name would itself reveal not only her ethnic background but a linked concern about past harassment and a professed fear that the release of her personal information could result in further harassment and possible violence. This person refers to anger at the Chinese government resulting in random Chinese persons being assaulted just because of their ethnicity and the person concludes “I am gobsmacked that I could be put in that kind of position because I voted in an election which is a duty and a right of all citizens.”

[70] The IPC’s reasons frame the issue as a contest between the City and the Requestor. However, the pith and substance of this case is the competing interests of the affected parties and the Requestor. The interpretation of the phrase “expressly authorized” in s. 14(d) of the MFIPPA engages a balancing of the competing purposes spelled out in s. 1 of that Act.

[71] The Gombu decision emphasized the importance of a contextual consideration at paragraphs 20 to 22:

[20] In evaluating the reasonableness of the Commissioner’s interpretation it is essential to bear in mind the importance of the context in which legislation was being interpreted…

[21] The context in this case is in relation to a request for information that would assist in evaluating the integrity of a municipal election. The overarching purpose of access to information legislation is to facilitate democracy. It is fundamental to a healthy democracy that its process be easily scrutinized by the public that its process is designed to serve. The importance of transparency and accountability in the democratic process cannot be overemphasized…

[22] A further important contextual consideration is the purpose of the legislation itself. The MEA, the regulations made under the MEA and the MFIPPA cumulatively provide a scheme designed to ensure the integrity of the democratic process and the accountability of those who seek public office. The stated purposes of the MFIPPA are set out in s.1. They underscore the objectives of providing public access to information and limiting the necessary exemptions from access, while at the same time protecting the privacy of individuals. The collective legislative scheme constitutes a policy that recognizes that public accountability in the election process should, where necessary, override individual privacy interests. [Emphasis Added]

[72] The IPC briefly recited the submissions of the affected parties in summary fashion at paragraph 40 of its reasons. However, it never explained why it dismissed their submissions out of hand in paragraph 72 (quoted above) except to say that “s.85(5) of the MEA explicitly overrides the privacy interests otherwise required to be considered”. The IPC decision does acknowledge that the disclosure of the Responsive Record in this case is not “expressly authorized” for public disclosure, but it simply adopts the broad interpretation of that phrase from Gombu without reference to any of the distinctions highlighted by both the City and the Intervenors in their submissions.

[73] The Canadian Oxford Dictionary describes “expressly” as “definitively stated, not merely implied”. Black’s Law Dictionary (7th Ed) defines “expressly” as “directly stated; clearly and unmistakably communicated”.

[74] The word “expressly authorized” are arguably stretched to the limit in Gombu. That broad interpretation is justified by the context and purpose of Mr. Gombu’s request – as the Divisional Court took pains to point out at paragraphs 20 to 22, quoted above. Gombu addressed why it was “necessary” to adopt a broad interpretation of “expressly authorized”. This decision does not.

[75] The reasons in this case fail to meaningfully address the submission that Gombu is distinguishable and do not justify a summary dismissal, without discussion or analysis, of the concerns expressed by the City and the Intervenors. A purposive and contextual interpretation of the MFIPPA might lead to a more restricted interpretation of the phrase “expressly authorized” in s.14(d) of the MFIPPA. It might not. But at least the argument for a narrower interpretation respecting the particular records in this case needs to be considered.

[76] I would quash Order MO-4176 of the Information and Privacy Commissioner and remit the matter for a reconsideration of the interpretation of the words “expressly authorized” in s.14(d) of the MFIPPA.

[77] A reconsideration could also include the fresh arguments raised by the City on this judicial review which we have declined to entertain. I agree with the majority that we should not consider those fresh arguments. However, the IPC’s expertise ought to be engaged in considering the City’s submission that Gombu is distinguishable on the basis of the form or format of the Requested Record.

[78] In Gombu the City admitted that the paper copies of the documents were captured by s.88(5) of the MEA and the Divisional Court simply extended that section to include an electronic version of the paper copy. In this case the City does not make that concession. If a paper copy had been created, it would have been unavailable for inspection because it would have been placed in the sealed ballot box when the polls closed. That is the reason the City took the position the Requestor could not inspect the Requested Record at its offices and needed to make an application under MFIPPA. It would be instructive to have the IPC’s view on whether this is a meaningful distinction.

Aston J. (Dissenting)

Released: November 7, 2022

CITATION: The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario, 2022 ONSC 6227

DIVISIONAL COURT FILE NO.: DC-22-00000020-0000

DATE: 2022/11/07

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Sachs, R.D. Gordon JJ.

BETWEEN:

The Corporation of the City of Mississauga

Applicant

– and –

Information and Privacy Commissioner of Ontario, John Doe, Requestor

Respondents

REASONS FOR JUDGMENT

Sachs J.

Aston J. (Dissenting)

Released: November 7, 2022