CITATION: Liquor Control Board of Ontario v. Information & Privacy Commissioner of Ontario and Toronto Star, 2023 ONSC 4607
COURT FILE NO.: 570/22
DATE: 20230810
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
McWatt A.C.J.S.C., Backhouse and Howard JJ.
BETWEEN:
Liquor Control Board of Ontario (LCBO)
Applicant
– and –
Information and Privacy Commissioner of Ontario (IPC) and Toronto Star
Respondents
M. Jill Dougherty and Kelsey Ivory, for the Applicant
Linda Hsiao-Chia Chen, for the Respondent Information and Privacy Commissioner of Ontario
Patty Winsa, for the Respondent Toronto Star
HEARD: June 7, 2023, at Toronto by videoconference
Mcwatt a.c.j.s.c.
Overview
[1] In April 2019, a Staff Reporter for the Toronto Star (the “Requester”) requested the Liquor Control Board of Ontario (“LCBO”) to disclose the following records:
(i) The total annual number of recorded incidents of thefts/shoplifting from the LCBO province-wide, 2008 to present; and,
(ii) For each LCBO location in Toronto, the total number of recorded incidents of theft/shoplifting by month, January 2018 to present (the “Requested Records”).
[2] In a letter, dated May 13, 2019, the LCBO denied the Requester access in full to the Requested Records, citing the Freedom of Information and Protection of Privacy Act RSO 1990, c F 31 (“FIPPA) exceptions set out in sections 14, 18 and 20. On June 14, 2019, the Requester appealed the LCBO Decision Letter to the Information and Privacy Commissioner of Ontario (the “IPC”).
IPC Appeal
[3] Maintaining that the Requested Records met the discretionary exemptions in FIPPA, the LCBO filed news articles as well as two affidavits on the appeal: an affidavit of Martin Power sworn January 10, 2020, and an affidavit of Diane Brisebois sworn January 9, 2020. While both affidavits were sealed on February 21, 2023, by Madam Justice Matheson, they were before this panel.
[4] Mr. Power is the Director of the Resource Protection Department at the LCBO and is responsible for the safety and security of all physical and human assets at the institution. He outlined the LCBO’s strategy of “Deter, Secure and Educate” in response to “shop theft” at the LCBO. At page 115, paragraph 9, Mr. Power discussed the dangers inherent in shop theft, including the weaponizing of stolen alcohol and the bottles it is contained in.
[5] Mr. Power deposed, at page 117, paragraph 12, that, if the Requested Records are disclosed, criminals will be able to learn numerous aspects of the LCBO’s Deter, Secure and Educate strategy, and could evaluate the efficacy of the LCBO’s security measures to assess vulnerabilities in its retail store network. This, in turn, would place customers and staff at risk and increase financial losses, among other things. That evidence was unchallenged.
[6] Diane Brisebois is the Chief Executive Officer of the Retail Council of Canada (“RCC”), which represents over 45,000 storefronts of independent, regional, and national mass merchants and speciality retail businesses across Canada. Her affidavit stressed the trends towards increasing shop theft across Canadian retailers. She indicated that shoplifting poses a risk to the safety of customers and employees, the security of property and assets, and directly impacts financial interests of retailers. She indicated, at paragraphs 9 to 10 of her affidavit, that
These costs include the value of products stolen, the cost of new shipments and re-stocking and the additional costs of security measures. This impact on retail earnings can have negative effects on retail investment, on hiring, on wages and benefits for employees, on shareholder returns and on tax revenues for municipal, provincial and federal governments.
[7] Ms. Brisebois deposed that the requested data is highly guarded by retailers, as it includes year-to-year trends in shoplifting and the impact on specific stores and regions, which are considered highly sensitive and “[s]uch information will not be shared as its disclosure could be utilized by criminals in order to identify weaknesses in the retailer’s store network or vulnerabilities of particular types of products.” At page 124, paragraph 14 of her affidavit, she deposed that retailers do not share this information with the media due to the impact it would have on their economic interests and the potential for increased confrontation, with attendant risk of physical harm, in settings identified as being especially vulnerable to theft. This evidence was also unchallenged.
[8] The LCBO relied on sections 14(1)(e), (i) and (l) and 20 of FIPPA to exempt its disclosure of the Requested Records. The subsections in section 14 exempt the disclosure of records where it could “reasonably be expected to”, (e) endanger the life or physical safety of a law enforcement officer or any other person; (i) endanger the security of a building or the security of a vehicle carrying items, or of a system of procedure established for the protection of items, for which protection is reasonably required; and (l) facilitate the commission of an unlawful act or hamper the control of crime. Section 20 exempts disclosure where it could threaten the safety or health of an individual.
[9] The LCBO argued that, based on the affidavit evidence, publicly disclosing the records would increase the likelihood of theft. It argued that the risk of harm associated with the disclosure of the records related to a further or targeted harm which, in turn, would endanger the life or safety of law enforcement officers, LCBO employees and customers. Shop thieves use stolen bottles as weapons during the commission of shop thefts. The disclosure would allow potential thieves to determine the best times to carry out shop thefts and would allow them to target specific locations.
[10] The LCBO also argued that the disclosure of the records would endanger the security of the LCBO’s procedures established to combat shop theft. Disclosure of the records would facilitate shop theft by enabling individuals to pinpoint security weaknesses within the LCBO stores and determine which locations would be more vulnerable to theft. The LCBO’s evidence set out an increase in incidents of organized shoplifting, including thefts conducted by gangs and thefts-to-order incidents specific to certain products. The evidence was that gangs go on to sell merchandise on e-commerce sites such as Craigslist and Kijiji.
[11] Relying on sections 18(1)(c) and (d) of FIPPA, the Applicant argued that disclosure of the Requested Records could reasonably be expected to lead to prejudice to the economic interests of the LCBO and injury to the financial interests of the Government of Ontario and its ability to manage the economy. Since the LCBO is a Crown Corporation, responsible for operating a commercial enterprise and earning revenue for the province of Ontario, it has an economic interest in increasing profitability and keeping costs down while fulfilling its social responsibility mandate.
[12] In 2019, the LCBO remitted more than $2.3 billion to the Ontario government. It is one of the government’s largest revenue sources and remits most of its revenue in the form of a dividend to the province’s Consolidated Revenue Fund which, in turn, is used to support key public programs and services. Maximizing public revenue, then, depends in part on the LCBO’s ability to protect its assets in a competitive retail environment.
[13] The LCBO maintained that it competes for customers and market share with other private sector liquor retailers who also face challenges with respect to shop theft. However, those retailers are not subject to FIPPA. Information regarding losses from theft is closely guarded by other retailers and is generally not publicly disclosed. Therefore, requiring the LCBO to divulge its records with respect to shop theft creates a significant disadvantage and could result in reputational harms to the LCBO which would impact its competitive position.
[14] The LCBO is responsible for the protection of numerous properties and products, as well as maintaining the health and security of its thousands of full- and part-time employees. The Applicant argued that shop theft has a direct impact on the financial interests of retailers, including the costs from the value of products stolen, the cost of ordering new shipments and re-stocking products and the additional costs of security measures. These costs impact retail earnings and have financial implications for the LCBO’s investments into stores, on hiring, wages and benefits for employees, and for revenues the LCBO can generate for the province.
[15] The LCBO argued that it has expended considerable resources as part of its crime prevention strategy in response to shop theft and is proactive in deterring and preventing theft. A description of these resources is included in the LCBO’s confidential written representations and confidential written Reply representations. The LCBO maintains that disclosure of the Requested Records would lead to increased costs of business and a concomitant decrease in revenue.
[16] The Requester argues that disclosure of the records will make the public more aware of the thefts, which would put more pressure on the LCBO to do something about them. As a result, the employees and the public will be safer. She noted that after the first stories published on this issue in the past, the LCBO put more security personnel in some of its stores.
IPC Appeal Decision
[17] On September 16, 2022, the IPC adjudicator ordered the LCBO to disclose the Requested Records to the Requester. The adjudicator found that the LCBO’s evidence and submissions, including those that are confidential, focused on an “existing” risk of harm inherent to the LCBO’s business rather than any other type of real harm which would support one of the sections 14, 18 or 20 exemptions to disclosing the records.
[18] The adjudicator described the burden of proof on The LCBO as their having to “demonstrate that the risk of harm is real and not just a possibility, however, it does not have to prove that disclosure will in fact result in such harm.”
Statutory Framework
[19] The LCBO is the sole importer of liquor into the province pursuant to The Liquor Licence and Control Act, 201934 (the “LLCA”). The regulatory regime governed by the LLCA and Liquor Control Board of Ontario Act, 2019, (the “LCBO Act”) came into force on November 21, 2021. The prior regulatory regime was governed by the Liquor Control Act, RSO 1990, c L 18 (the “LCA”) and the Liquor Licence Act, RSO 1990, c L 19 (the “LLA”). At all times, the LCBO and the Alcohol and Gaming Commission of Ontario (the “AGCO”) have together been responsible for regulating the sale of liquor in Ontario, with the AGCO maintaining primary responsibility over the secondary stolen liquor market.
[20] All sales by persons or entities other than the LCBO are permitted, on a limited basis, pursuant to specific licences and permits. The LLCA prohibits the sale or supply of liquor to any person who is or appears to be intoxicated, or to any person who is under 19 years of age or appears to be under 19 years of age.
[21] Sections 34 and 39 of the LLCA also prohibits the possession of liquor by anyone under 19 years of age, and dictates that no person shall possess liquor unless (a) purchased from a retail store for an individual’s personal use, (b) possessed under the authority of a licence or permit, (c) manufactured by an individual, in accordance with the law, for that individual’s personal use or for service at an event at which liquor may be served under the authority of a permit, (d) was imported into Ontario in accordance with the regulations, or (e) is possessed by or under the authority of the LCBO.
[22] There are now, however, greater opportunities for liquor takeout, delivery of liquor products from The Beer Store, the expansion of the Farmer’s Market Program, among other changes. (AGCO, “Information Bulletin: Highlights of Recent Liquor Reforms to Support Businesses” (December 9, 2020), online: https://www.agco.ca/bulletin/2020/information-bulletin-highlights-recent-liquor-reforms-support-businesses).
[23] Section 77(2) of the LLCA sets out a confidentiality provision. It requires that information that would reveal the sales of an individual retail store or LCBO store and that is held by an institution is, for the purposes of section 17 of the FIPPA, third party financial and commercial information supplied in confidence to the institution.
[24] The Applicant argues that subsection 77(2) of the LLCA prevails over the provisions of FIPPA.
ISSUES AND LAW
[25] The issues on this application for judicial review are:
(a) Did the adjudicator misapply the standard of proof?
(b) Did the adjudicator misapprehend or fail to take evidence into account?
(c) Were the adjudicator’s reasons inadequate?
[26] The presumptive standard of reasonableness applies in this case (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], at paras 16-17, 23, 58-62); YUDC v Information and Privacy Commissioner, 2022 ONSC 1755, at paras 30-35).
[27] The Applicant submits that the IPC’s decision does not exhibit the requisite degree of justification, intelligibility and transparency and the flaws in the decision are more than merely superficial or peripheral to the merits of the decision. Therefore, the decision is unreasonable pursuant to Vavilov (at para 100).
[28] The LCBO’s underlying position in this matter is that the sale, supply and possession of alcohol should not be treated in the same way as the sale, supply or possession of other retail products. The LCBO plays an important public safety role in controlling the supply of alcohol to the public and has the singular task of promoting social responsibility in connection with liquor.
[29] The Applicant submits that, as noted by the Supreme Court of Canada in Childs v Desormeaux, 2006 SCC 18, at paras 19-21 [Childs], alcohol cannot be treated like an “ordinary commodity”. Its sale is tightly controlled and involves “additional steps to reduce the associated risks” such as measures designed to identify customers and ensure that the purchase complies with Ontario’s liquor laws, and security measures in place to deter theft.
[30] In Childs, the Court summarized the role of commercial vendors of alcohol as follows:
[T]he sale and consumption of alcohol is strictly regulated by legislatures, and the rules applying to commercial establishments suggest that they operate in a very different context than private-party hosts. This regulation is driven by public expectations and attitudes towards intoxicants, but also serves, in turn, to shape those expectations and attitudes. In Ontario, where these facts occurred, the production, sale and use of alcohol is regulated principally by the regimes established by the Liquor Control Act, R.S.O. 1990, c. L.18, and the Liquor Licence Act, R.S.O. 1990, c. L.19. The latter Act is wide-ranging and regulates how, where, by and to whom alcohol can be sold or supplied, where and by whom it can be consumed and where intoxication is permitted and where it is not.
These regulations impose special responsibilities on those who would profit from the supply of alcohol. This is clear by the very existence of a licensing scheme, but also by special rules governing the service of alcohol and, as noted above, special training that may be required. Clearly, the sale of alcohol to the general public is understood as including attendant responsibilities to reduce the risk associated with that trade.
The importance of this regulatory environment does not relate to the statutory requirements per se, but what they demonstrate about the nature of commercial alcohol sales and about the expectations of purveyors, patrons and the public. Selling alcohol is a carefully regulated industry. The dangers of over-consumption, or of consumption by young or otherwise vulnerable persons, means that its sale and service in commercial settings is controlled. It is not treated like an ordinary commodity sold in retail stores. The public expects that in addition to adherence to regulatory standards, those who sell alcohol to the general public take additional steps to reduce the associated risks. Furthermore, patrons are aware that these special responsibilities have very real and visible manifestations. The imposition of a “cut-off” at the bar is understood, and expected, as part of the institutionalization of these responsibilities. Similarly, in many establishments, “bouncers” both enforce admission and assist other members of the staff who might have to deal with patrons who may have become intoxicated.
[31] This concept is a persuasive factor, along with the evidence submitted by the LCBO, to grant this application.
(a) The IPC failed to properly apply the standard of proof
[32] The statutory burden of proof on the LCBO was whether the disclosure of the information at issue “could reasonably be expected to” cause the harms as outlined in sections 14, 18 and 20 of the FIPPA.
[33] The adjudicator cited the case of Merck Frosst, 2012 SCC 3 (Merck Frosst) in setting out the standard of proof she would apply to the evidence tendered by the LCBO. She said,
As the institution refusing access to a record, the LCBO bears the burden of proving its exemption claim. The LCBO must provide evidence that disclosure of the records could reasonably be expected to result in one or more of the harms in sections 14(e), (i) and (l). It must demonstrate that the risk of harm is real and not just a possibility, however, it does not have to prove that disclosure will in fact result in such harm.
[34] In the subsequent case of Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31, at para 54) the Court held that the “could reasonably be expected to” standard, which is applicable to sections 14, 18 and 20 of FIPPA, provides “a middle ground between that which is probable and that which is merely possible”. The Court set out that “An institution must provide evidence "well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground”.
[35] The LCBO maintains that, in describing this middle ground, the Supreme Court articulated a ceiling or cap on the standard of proof (that being what is “probable”), against which adjudicators can measure the evidence. Although the risk of harm must be “well beyond the merely possible”, it nonetheless need not be “probable” and must fall somewhere in between these two extremes.
[36] The adjudicator noted in her decision that the LCBO’s evidence did not demonstrate that the disclosure of the records “could reasonably be expected to result in a harm… that is well beyond the merely possible or speculative.” She wrote,
The LCBO’s arguments in its confidential representations are contingent on circumstances that may arise, but they do not convince me that it is the disclosure that could lead to the harms. The LCBO’s confidential arguments do not sufficiently connect the disclosure of the records at issue to the harms.
[37] Similarly, the adjudicator found,
The LCBO does not support […] with details or information that connect the risk of harm to the disclosure of the two records at issue” “These representations, about how disclosure could facilitate criminals’ ability to engage in shop theft, are insufficient to establish the application of section 14(1)(l)”, which exempts records from disclosure that could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime.
[38] The adjudicator repeatedly mentioned the failure to provide sufficiently detailed evidence and repeatedly stated that the LCBO “asserted” its position, implying that it failed to provide sufficient evidentiary support for its assertions.
[39] There is, however, direct evidence in the sealed documents and elsewhere, of the direct correlation with the publication of two previous articles, when this information was disclosed in the past, to an increase in shop thefts at the LCBO. This evidence went beyond speculation and mere assertions.
[40] The adjudicator failed to recognize that the “could reasonably be expected to” standard articulated in sections 14, 18 and 20, provides “a middle ground between that which is probable and that which is merely possible”, and instead looked for a causal link between the disclosure of the Requested Records and the harms outlined by the LCBO.
[41] She, in fact, imported an element of causation into her analysis by stating that the disclosure of the records would not “cause” increased costs or, put differently, were not “sufficiently connected” to the harms, and that the harms were “contingent on circumstances that may arise”.
[42] The LCBO need not demonstrate a causal link or demonstrate that the harms will occur. The Court of Appeal, in Ontario (Information and Privacy Commissioner, Inquiry Officer) v Ontario (Minister of Labour, Office of the Worker Advisor), 1999 19925 (Ont CA), at paragraph 25, has warned against introducing an element of probability into the section 14 and section 20 analyses:
The expectation of harm must be reasonable, but it need not be probable. […] Introducing the element of probability in this assessment is not appropriate considering the interests that are at stake, particularly the very significant interest of bodily integrity. It is difficult, if not impossible, to establish as a matter of probabilities that a person’s life or safety will be endangered by the release of a potentially inflammatory record. Where there is a reasonable basis for believing that a person’s safety will be endangered by disclosing a record, the holder of that record properly invokes ss. 14(1)(e) or 20 to refuse disclosure.
[43] In Bricklayers and Stonemasons Union Local 2 (Trustees of) v Ontario (Information and Privacy Commissioner), 2016 ONSC 3821, at para 67 [Bricklayers], which dealt with the same “could reasonably be expected to” standard as this case does, the Divisional Court found that the causation test for harm that was imposed by the adjudicator in that case was “too stringent when all the facts are viewed in context”. The panel wrote, at paragraphs 45 to 46:
Reasonable expectation of probable harm cannot be merely fanciful, imaginary or contrived. Such fears of harm are not reasonable because they are not based on reason. Conversely, requiring a party to demonstrate that harm is more likely than not to occur sets the legal burden too high. […] The difficulty inherent in this test is that an affected party is required to provide evidence relating to an event that has not yet occurred. The reasons or decision in Merck Frosst provide guidance as to what a party resisting disclosure needs to demonstrate to establish the possibility of future harm.
[T]hat disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm.
[44] The future harms the LCBO identified are clearly “possible” and are “based on reason”. The LCBO provided evidence that describes the precise nature of the harms that “could reasonably be expected” to occur upon disclosure of the records.
Section 14, 18 and 20
[45] I agree with the LCBO that the adjudicator did not deal with this upper-end limit of the articulated standard in her decision as it related to all of the exemptions claimed. Instead, she focused her analysis on determining whether the evidence went “well beyond the merely possible or speculative”, without articulating how far beyond the possible that evidence had to go.
[46] The adjudicator’s failure to articulate the appropriate standard was more than a superficial defect but was a failure to apply the correct standard. This error affected her decision, thereby rendering it unreasonable.
[47] The adjudicator also failed to consider the legal context of this matter. The LLCA, which came into force before the adjudicator made this order, explicitly states in section 77(2) that information with respect to sales is third party information exempt from disclosure, despite FIPPA. Nonetheless, in relying on a previous order she made (Liquor Control Board of Ontario (Re), 2020 82079 (Ont IPC) at Para 18)), she concluded that “the LCBO is a Crown corporation with a statutory monopoly over retail liquor sales in the province, the ability to control many aspects of the retailing of alcohol and a secure competitive position, despite the existence of private sector alcohol retailers.” The Applicant provided evidence of the competitive position in the liquor sales marketplace altered by the LLCA and LCBO Act, as well as AGCO policy changes.
[48] The LLCA demonstrates an intention on the part of the legislature to maintain the confidentiality of any record that would “reveal the sales of an individual retail store”, as this would constitute financial and commercial information. I accept that records that would reveal the thefts or loss of sales from an individual retail store also contain confidential financial and commercial information and ought not be disclosed pursuant to section 18 of FIPPA.
[49] The adjudicator failed to apply the appropriate standard and sufficiently apply it to the factual and legal contexts in this case. It resulted in an unreasonable decision.
(b) The IPC misapprehended or failed to take evidence into account.
[50] The LCBO presented specific and detailed evidence to the IPC.
[51] The statistical data provided to the IPC showed that the disclosure of the Requested Records would lead to more targeted harms. Despite this, the adjudicator found that the LCBO’s representations focused on “existing” harms and found that the data in the records did not convince her of the LCBO’s claims pursuant to sections 14 and 20 of FIPPA. The adjudicator found that the records themselves “do not contain any information about security procedures the LCBO refers to in its representations, and the LCBO does not explain how someone could deduce information on the efficacy of its security procedures from the records at issue.” She wrote that the LCBO’s representations, “do not address the specific information in the records or explain how disclosure of that specific information could reasonably be expected to injure the financial interests of the province.”
[52] These portions of the decision show that the adjudicator either ignored, failed to take into account or misapprehended the evidence in the materials before her. The LCBO did explain exactly how someone could learn its security procedures from the records. It further explained exactly how the information could injure the financial interests of the province.
[53] Part of the evidence in the materials before the adjudicator was in the form of data about store thefts. It is clear from that information, and the adjudicator accepted, that there is an ongoing problem for the LCBO regarding shoplifting of their products.
[54] There was also information by Mr. Power that when previous information of the type sought by the Toronto Star was disclosed and reported on (Toronto Star, December 28th, 2018), reported shop theft incidents in Toronto LCBO stores increased by 85% and losses increased by 49 % comparing 30 days before the article was published and 30 days after the article was published. After a similar disclosure and reporting by CBC News in Ottawa on August 6th, 2019, reported shop theft incidents in Ottawa increased by 82% and losses increased by 125% comparing 7 days before the information was disclosed to the public and 7 days after it was disclosed.
[55] In Ontario Cannabis Retail Corporation (Re), 2021 42425 (Ont IPC), at paras 32-33, the IPC similarly considered whether information that would reveal demand levels for legal cannabis per geographic location ought to be disclosed. It determined that the Ontario Cannabis Retail Corporation (“OCRC”) provided sufficient evidence to prove that it is reasonable to expect that members of the illicit market could use the information to be better equipped in their criminal activities and become more targeted in their criminal behaviour:
[the OCRC] provided sufficient evidence to prove it is reasonable to expect that members of the illicit market will use the information at issue to target vulnerable populations and specific geographic areas to sell illegal cannabis. […] Given the specific nature of the information at issue, I am satisfied by the OCRC’s claim that it could reasonably be used by criminal organizations to further target its sales and marketing of illegal cannabis. […] The OCRC has demonstrated that the illicit market is a sophisticated and dynamic economic enterprise and not deterred by laws and regulations. Given the circumstances, I find it reasonable to expect the players in the illicit cannabis market would use the information at issue to further their illegal enterprise.71
[56] The LCBO has demonstrated, not only that the Requested Records could reasonably be used by criminals to engage in criminal behaviour, but also that it has been used by criminals in 2018 in Toronto and 2019 in Ottawa, thereby putting the safety of individuals at risk.
[57] The adjudicator also misapprehended or failed to consider the economic and financial information in the record pursuant to the exemption under section 18(1)(c) and (d) of FIPPA. She ignored or misapprehended the evidence that disclosure of the records would cause a potential increase in costs. Instead, she found that it was the existence of a shop theft problem itself that may increase certain LCBO costs, depending on how the LCBO chose to address shop theft. This finding made no sense, especially in light of the unchallenged evidence from Mr. Power and Ms. Brisbois that disclosing the documents in question would lead to increased shop theft and financial loss to the LCBO.
[58] And the adjudicator’s failure to deal with the legislator’s overhaul of the regulatory liquor system (outlined in the AGCO, “Information Bulletin: Highlights of Recent Liquor Reforms to Support Businesses” (December 9, 2020)) seems to have led her to conclude that the LCBO had a statutory monopoly over retail liquor sales in the province. This, in turn, seems to have helped her conclude that any potential increase in costs would be negligible.
[59] In Vavilov, at paras 125-136, the Court held that, “absent exceptional circumstances, a reviewing court will not interfere with [a tribunal’s] factual findings”. Exceptional circumstances include, however, where a decision-maker has “fundamentally misapprehended or failed to take account of the evidence before it” or where it is demonstrated that the tribunal’s “conclusions were not based on the evidence that was before [it]” (Vavilov at paragraphs 125 – 136).
[60] The evidence and submissions put forward by the LCBO stand at odds with the adjudicator’s findings. The adjudicator failed to reconcile her findings with the evidence and submissions of the LCBO, and seemingly rejected the LCBO’s uncontradicted evidence without providing any analysis of that rejection. The decision fails to meet the standard of justification, intelligibility and transparency.
(c) The IPC’s reasons are inadequate
[61] The adjudicator’s reasons were conclusive without justification or explanation.
[62] In Barker v Ontario (Information and Privacy Commissioner), 2019 ONCA 275 [Barker], the Court of Appeal considered the adequacy of the IPC’s reasons and noted that the reasons must be responsive to the issues and positions of the parties:
[…] there is no set formula that the Commissioner must follow in drafting reasons […]. The level of specificity that may be required will depend on the circumstances, including the nature of the personal information and the provisions of the Act that are at play. The reasons should, however, be responsive to the issues raised and the positions advanced by the affected parties.
[63] This reasoning, released eight months before Vavilov, is echoed therein at paragraph 127. The Court in Vavilov expanded on the requirement of “responsive justification” and tied this requirement to the principles of procedural fairness:
The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[64] The adjudicator’s reasons fail to address the LCBO’s submissions and evidence with respect to the existing harms related to shop theft becoming more targeted in nature following the disclosure of the Requested Records and instead summarized the LCBO’s argument as being that the disclosure of the Requested Records would increase the likelihood of shop theft. The LCBO did not simply indicate that the disclosure would increase the “likelihood” of theft.
[65] The evidence put forward with regards to shop thefts becoming more targeted in nature following disclosure of the Requested Records was central to the LCBO’s entire submissions. In fact, it was the basis of its arguments with respect to sections 14, 18, and 20. The reasons were inadequate as a result.
ORDER
[66] The Application is granted. The IPC’s Order is set aside.
Costs
[67] On agreement of the parties, there shall be no order for costs as each party will bear its own costs.
McWatt A.C.J.S.C.
Howard J.
Released: August 10, 2023
Backhouse J. (Dissenting Reasons)
Overview
[68] The Liquor Control Board of Ontario (“LCBO”) seeks to judicially review Order P0-430220F[^1] made by an adjudicator of the Information and Privacy Commissioner of Ontario (“IPC”) under the Freedom of Information and Protection of Privacy Act.[^2] The Order adjudicated the appeal of an access to information decision made by the LCBO, an institution subject to FIPPA. The requester, a reporter at the Toronto Star who has written articles about thefts at LCBO stores (“shop thefts”), sought disclosure of the total number of shop thefts for each LCBO store located in Toronto during a certain time period (collectively, the “shop theft numbers”).
[69] The LCBO denied the request, relying on the exemption under FIPPA that permits an institution to withhold certain types of records that relate to law enforcement (section 14(1)). The LCBO also claimed the exemptions under FIPPA for records whose disclosure could reasonably be expected to harm the economic interests of the LCBO and the Ontario government (section 18(1)) or seriously threaten the health or safety of an individual (section 20).
[70] The adjudicator found that the shop theft numbers were not exempt under either sections 14(1), 18(1) or 20 of FIPPA and ordered them disclosed to the requester.
[71] The LCBO challenges the Order, arguing that the adjudicator did not properly apply the standard of proof, misapprehended the evidence and did not provide adequate reasons.
[72] My colleagues, McWatt A.C.J.S.C. and Howard J. (“the Majority”), conclude that the Order is unreasonable and should be set aside on the basis of the three grounds raid by the LCBO. I disagree.
[73] The adjudicator properly applied the standard of proof. The LCBO cites no authority for its suggestion that a decision is unreasonable for not identifying an upper threshold or identifying “how far beyond” the mere possibility of harm the evidence must be.
[74] The adjudicator’s findings of fact require a high standard of deference and a reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” as set out in Vavilov.[^3] Applying this standard, the findings of fact are reasonable.
[75] The reasons are adequate, taking into account the institutional context that some of the evidence and arguments made by the LCBO were kept confidential pursuant to the confidentiality provisions in FIPPA. The adjudicator made a number of references to reviewing and considering the parties’ complete representations while referring only to the non-confidential representations of the LCBO in her reasons.
[76] I would dismiss the application.
Analysis
The Adjudicator properly applied the standard of proof
[77] Turning to the first ground of appeal, the LCBO submits the adjudicator failed to acknowledge that the standard of proof for the exemptions under ss. 14, 18 and 20 of FIPPA operates as a middle ground between the mere possibility of harm and the likelihood that harm will occur on a balance of probabilities. The LCBO argues that the adjudicator subsequently applied the wrong standard of proof, repeatedly citing the LCBO’s failure to provide evidence to demonstrate a causal link or “sufficient connection” between disclosure and the risk of harm. The LCBO submits it put forward evidence and submissions that demonstrate a risk of harm that is not merely fanciful, imaginary or contrived.
[78] In the Order, the adjudicator applied the standard of proof according to the relevant jurisprudence that confirms the onus on the party claiming the exemption is not so high as to be a standard of “probable” but must be “well beyond the merely possible or speculative”. The LCBO cites no authority for its suggestion that a decision is unreasonable for not identifying an upper threshold or identifying “how far beyond” the merely possible the evidence must be. In the Order the adjudicator found that based on the representations before her and the records themselves, the LCBO had not established that the harms alleged were “well beyond the merely possible or speculative”. As discussed in more detail below, the adjudicator found that the LCBO had not adduced sufficiently detailed evidence or established a link between the alleged harms and the disclosure of the records.
[79] The LCBO in its factum points to some examples of where it argues that the adjudicator "imported an element of causation" into her application of the standard of proof. When the reasons are read as a whole, however, it is clear that the adjudicator found that the LCBO's representations failed to establish a sufficient connection or evidence between disclosure of the shop theft numbers and the alleged harms. In doing so, the adjudicator was not "introducing an element of probability" into her application of the legal test for these exemptions. Rather, the adjudicator was merely recognizing that the words "where the disclosure could reasonably be expected to..." required a connection or link between the disclosure of these particular records and the alleged harms. The adjudicator did not hold the LCBO to the standard of proving on a balance of probabilities that the harm will occur.
[80] As the adjudicator reasoned, some of the alleged harms arose from the realities of the shop thefts themselves, not from the prospective disclosure of the shop theft numbers. For example, the LCBO argued before the adjudicator that shop thefts pose risks to the health and safety of its employees and customers. While acknowledging the existence of these risks, the adjudicator found that the LCBO had not established that the disclosure of the shop theft numbers could reasonably be expected to lead to the risks to health and safety. The adjudicator reasonably required the LCBO to provide a link between the disclosure of the records and the alleged harms, not merely whether there was a reasonable expectation that the alleged harms could occur in general.
[81] The Supreme Court in Merck v. Frosst Canada Ltd v. Canada (Health)[^4] addressed what evidence can satisfy the threshold of harms that “could reasonably be expected to” result from the disclosure of particular information. It found that while there need not be a causal relationship as in tort law, there must be proof of a “clear and direct connection between the disclosure of specific information and the injury that is alleged.”[^5]
[82] The adjudicator found that the evidence and submissions before her did not meet the threshold of establishing that the exemptions applied. She found that the risk of harm resulting from the disclosure of the shop theft numbers was speculative and not "well beyond the merely possible." The adjudicator's approach is consistent with the courts' jurisprudence on what is required to establish a risk of harm under these exemptions. In making this finding, the adjudicator was clearly not assessing whether the disclosure of the records would, in fact, cause the harms alleged, but whether the LCBO provided sufficient evidence to establish that the harms “could reasonably be expected to” result if the shop theft numbers were disclosed.
[83] I conclude that the adjudicator properly applied the standard of proof.
Adjudicator’s factual findings are reasonable
[84] I turn to consider the second ground of appeal, that the adjudicator misapprehended the evidence. As noted by the Majority, the LCBO, in support of its position that the Requested Records met the discretionary exemptions in FIPPA, filed news articles as well as confidential evidence of spikes in shop thefts after articles appeared in the media about shop thefts at LCBO Toronto and LCBO Ottawa stores. While this part of the record before the adjudicator was confidential and was sealed, counsel for the LCBO made submissions in open court regarding it and accordingly it is necessary to consider it in these reasons as well as the IPO’s responding arguments.
[85] An article in the Toronto Star appeared on December 28, 2018, with the headline “LCBO thefts Surge in Toronto, often as staff stand and watch.” “They’re literally just walking away”. The article went on to refer to police telling staff not to intervene with thieves and the TPS being rarely dispatched which opened up a pathway to friction free larceny. A similar disclosure and reporting by CBC News in Ottawa occurred on August 6, 2019. The LCBO submitted that the statistics about the resulting surge in the shop thefts amounted to strong evidence about what would happen if the information in the Requested Records was released.
[86] This article did not rely on LCBO records but rather on publicly available police statistics. It is not surprising that an article which referred to “literally just walking away”, “friction free larceny” and the TPS being rarely dispatched would result in a surge of shop thefts. The IPC made reasonable arguments in the sealed part of their factum as to why this was not persuasive evidence of a connection between a spike in shop thefts after media reporting. The statistics covered a very short period, comparables were not provided for the same time in prior years and when another article was subsequently published, there was no spike noted.
[87] Due to the confidentiality and sealing of this part of the evidence, the adjudicator could not refer to this evidence explicitly in her reasons but made reasonable findings that the evidence before her did not show how the information in the Requested Records (as opposed to general reporting about shop thefts) could be used to facilitate or prevent shop theft. In other words, the adjudicator found there was insufficient evidence to show how release of the Requested Records could reasonably be expected to result in more thefts or reveal security measures at specific stores. There is nothing unreasonable in the adjudicator implicitly finding that the data is not as definitive or extensive as the LCBO suggests and that it did not provide the requisite link between the disclosure of the records and the alleged harms.
[88] This example demonstrates the difficulty of concluding that the adjudicator “ignored, failed to take into account or misapprehended the evidence in the materials before her” where she was constrained from referring to the evidence explicitly in her reasons because of the confidentiality of much of the submissions and evidence before her.
[89] I turn now to consider the adjudicator’s specific findings with respect to the arguments and evidence led by the LCBO in support of its claim to the FIPPA exemptions.
i. Section 14(1)(e) of FIPPA—endanger the life or physical safety of a law enforcement officer or any other person
[90] In the appeal before the IPC, the LCBO relied on the same arguments and evidence with respect to its claims regarding the risk of endangerment to the “life or physical safety of a law enforcement officer or any other person” (section 14(1)(e)), and serious threats to the “health and safety of an individual” (section 20). The adjudicator found that these exemptions did not apply:
[12] The LCBO’s representations, including those that are confidential, do not demonstrate that disclosure of the records could reasonably be expected to result in a risk of harm under section 14(1)(e) that is well beyond the merely possible or speculative. The representations focus on an existing risk of harm that is inherent to the LCBO’s business — its glass bottles being used as weapons to endanger physical safety – and the assertion that disclosure of the information in the records would increase the likelihood of shop theft, which would, in turn, endanger law enforcement officers, and LCBO employees and customers. I have considered the complete representations of the parties, including the LCBO’s confidential submissions. While I acknowledge the harms about which the LCBO is concerned, I find that the LCBO has failed to establish that it is the disclosure of the records at issue that could reasonably be expected to endanger the life or safety of individuals, as required for the application of section 14(1)(e) of the Act. Accordingly, I find that section 14(1)(e) of the Act does not apply to the records.
[91] The adjudicator considered the evidence before her, including the affidavit of the LCBO’s Director of the Resource Protection Department (“RPD Director”) (redacted). The non- confidential representations provided to the IPC by the LCBO demonstrated that the LCBO has trained and instructed its employees not to engage with any thieves during the commission of shop theft. While shop theft in general can potentially result in risks to the health and safety of LCBO employees and customers, the adjudicator found that this risk already exists and the specific harm of a thief potentially using a bottle as a weapon is inherent in the LCBO’s business, whether or not the records are disclosed. The adjudicator ultimately found that the LCBO had not established a sufficient link between the alleged harms and the disclosure of the shop theft numbers.
[92] In concluding that the adjudicator misapprehended or failed to take evidence into account, the Majority references Ontario Cannabis Retail Corporation (Re)[^6] relied upon by the LCBO where the IPC considered whether information that would reveal demand levels for legal cannabis per geographic location ought to be disclosed. It determined that the Ontario Cannabis Retail Corporation provided sufficient evidence to prove that it is reasonable to expect that members of the illicit market will use the information at issue to target vulnerable populations and specific geographic areas to sell illegal cannabis.
[93] IPC submitted that the facts in Ontario Cannabis Retail Corporation (Re) and the other IPC orders cited by the LCBO are distinguishable based on the quality and cogency of the evidence that was provided to the IPC in those appeals. The IPC relied upon Order PO-4057 referenced in the Decision where the IPC found that none of the section 14(1) (e) (i) and (l) exemptions applied to a statistical graph showing the LCBO’s 2019 reported shop theft losses and ordered the LCBO to disclose that statistical graph. The IPC also relied upon IPC Order PO-2455 upheld by this court[^7] where the Adjudicator found that information about the location of seized firearms did not satisfy him that section 14(1)(l) applied. He found that the general public was already aware that firearms are stored at police stations and that the institution’s predictions of theft resulting from disclosure of numbers of firearms stored at specific police stations was speculative and lacked detailed sufficient evidence.
[94] Ultimately it was up to the adjudicator to decide which authorities were relevant to the issues in this case.
ii. Section 14(1)(i) of FIPPA-- endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably require
[95] McWatt A.C.J.S.C. finds the failure of the adjudicator to address the LCBO’s evidence with regard to shop thefts becoming more targeted in nature should the Requested Records be disclosed rendered the reasons inadequate. I disagree.
[96] The adjudicator found that the LCBO had not established with “detailed” evidence that there is a risk to the “security of the [LCBO’s] procedures” or that disclosure of the information “would give criminals the opportunity to analyze the efficacy” of the LCBO’s security measures”[^8], i.e. targeting. After reviewing the confidential and non-confidential representations of the LCBO, the adjudicator found that the representations did not demonstrate that the risk of harm was “well beyond the merely possible or speculative”:
[15]…The records, which list the total annual incidents of shop theft from the LCBO province-wide and the monthly Toronto incidents of shop theft by LCBO location, do not contain any information about security procedures the LCBO refers to in its representations, and the LCBO does not explain how someone could deduce information on the efficacy of its security procedures from the records at issue. The LCBO’s arguments in its confidential representations are contingent on circumstances that may arise, but they do not convince me that it is the disclosure that could lead to the harms. The LCBO’s confidential arguments do not sufficiently connect the disclosure of the records at issue to the harms envisioned by section 14(1)(i) and they do not persuade me that the records qualify for exemption. I find that section 14(1)(i) of the Act does not apply to the records
[97] Further, the fact that the shop theft numbers are related to security generally is not sufficient to establish that section 14(1)(i) applies. This court upheld two related IPC orders that found the equivalent provision to section 14(1)(i) of FIPPA (found in section 8(1)(a) of the Municipal Freedom of Information and Protection of Privacy Act[^9]) did not apply to an assessment of the problems of a town’s IT system and the town’s IT service contracts.[^10] While the town urged the IPC to take notice of the general proliferation of cyberattacks, this court found that the IPC was reasonable in concluding that the exemption did not apply because the town did not explain how disclosure of those particular documents could reasonably be expected to endanger the security of the town’s buildings, vehicles or IT system.[^11]
iii. Section 14(1)(l) of FIPPA—facilitate the commission of an unlawful act or hamper the control of crime
[98] The LCBO argued and McWatt A.C.J.S.C. accepts that the statistical data provided to the IPC related to the “surge” in shop thefts after the media coverage showed that the disclosure of the Requested Records would lead to more targeted harms. The adjudicator with specialized expertise related to her home statute, came to the opposite conclusion which is a finding of fact to which deference is owed.
[99] The adjudicator found that the LCBO’s representations did not provide enough evidence to establish that disclosure of the records could reasonably be expected to facilitate shop theft. Before the adjudicator, the LCBO argued that disclosure of the records would:
…enable unscrupulous individuals to pinpoint vulnerabilities within the LCBO’s retail store network. Information on LCBO retail store locations is readily available online; if information regarding Shop Theft incidents at specific LCBO retail stores are disclosed, criminals will have the opportunity to corroborate information about which locations would be more likely to have security measures and which locations are more vulnerable to theft.[^12]
[100] As the adjudicator found, shop theft is a known problem at LCBO stores, including stores in Toronto. The evidence before the adjudicator included the records themselves and, on their face, she found that there was insufficient evidence that their disclosure could reasonably be expected to reveal information about the LCBO’s security measures and vulnerabilities at particular Toronto LCBO stores or other LCBO stores throughout Ontario. The adjudicator reasonably found that the LCBO representations about “disclosure could facilitate criminals’ ability to engage in shop theft” were insufficient.
iv. Section 18(1)(c) of FIPPA-- prejudice the economic interests of an institution or the competitive position of an institution, and Section 18(1)(d) -- prejudice the economic interests of an institution or the competitive position of an institution
[101] The Court of Appeal affirmed its earlier jurisprudence[^13] when addressing the economic interests exemption (section 18) in Ontario (Ministry of Transportation) v. Consulting Engineers of Ontario.[^14] The Court upheld the IPC’s finding in that case that speculative evidence of harm was not sufficient to establish the economic interests exemption.[^15]
[102] In the Order at issue, the adjudicator found that the LCBO’s representations regarding harm to its and the Ontario government’s economic interests was not connected to the disclosure of these specific records. The Order read in its entirety shows the adjudicator applied the correct test for the economic interests exemption by determining whether there was a “reasonable expectation of probable harm”[^16]. With respect to the effect of the disclosure of the LCBO’s shop theft numbers, the LCBO argued that this could “result in major reputational harms to the LCBO which would impact its competitive position.” The adjudicator found that the evidence before her did not show that it was more than merely possible or speculative that disclosure could, for example, force price reductions or deter customers from shopping at the LCBO.
[103] In terms of any increased expenditures by the LCBO to address shop thefts, the adjudicator found that the need to address shop theft already existed and the LCBO had not demonstrated with detailed evidence how the disclosure of the records could reasonably be expected to prejudice the LCBO’s economic interests (revenues) or injure the financial interests of the Ontario government or the ability of the Ontario government to manage the economy of Ontario.
[104] While there is no doubt that the LCBO’s retail operations result in substantial funds being transferred to the Ontario government, and that shop theft generally affects the LCBO’s profits, the adjudicator reasonably found that these general assertions were not sufficient evidence that disclosure of these particular records could reasonably be expected to be injurious to the Ontario government’s ability to manage the Ontario economy. Based on the evidence and arguments before her, this was a reasonable finding to make.
[105] The LCBO further argues that the adjudicator’s finding with respect to the economic interests exemption “failed to reconcile” LCBO’s statutory monopoly with “the legislature’s overhaul of the regulatory scheme.” As the LCBO notes, the “overhaul” occurred after the LCBO’s two sets of representations were submitted, but before the Order was released. It is settled law that an administrative decision will not be found unreasonable for failing to address an issue or argument that was never before it.[^17] Further, the LCBO now relies on evidence of the apparent changes that were not provided to the adjudicator. It should also be noted that the LCBO did not seek to submit this information to the IPC before the Order was released, nor did it seek a reconsideration of the Order.
[106] Considering the record as a whole, it cannot be said that the adjudicator ignored, failed to take into account or misapprehended the evidence in the materials before her.
Reasons in the Order are Adequate
[107] The third ground of appeal is that the adjudicator did not provide adequate reasons. As Vavilov confirmed, the written reasons of an administrative decision maker may take many forms and may be dissimilar from those drafted by a court.[^18] Vavilov further directed that:
A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do "not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred" is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.[^19]
[108] The institutional context at issue here includes that some of the evidence and arguments made by the LCBO were kept confidential pursuant to the confidentiality provisions in FIPPA[^20] that apply to inquiries undertaken by the IPC. When an adjudicator determines that representations from a party are confidential, the adjudicator will not share these representations with the other parties to the appeal and will not include information from confidential representations in her reasons.
[109] In the Order, the adjudicator makes a number of references to the confidential representations filed by the LCBO, including indicating that:
In this order, I refer only to the non-confidential representations of the LCBO, however, I have reviewed and considered the parties' complete representations.[^21]
[110] The Order makes clear that the adjudicator engaged with the confidential evidence and addressed it by referring to the general nature of the evidence in her reasons. For example, in reference to the LCBO's confidential representations, the adjudicator refers in paragraph 12 to "harms about which the LCBO is concerned" and in paragraph 15 to "information about security procedures." The adjudicator also refers in paragraph 18 to some confidential representations filed by the LCBO that she found amounted to "general arguments that address something other than the risk of harm posed by the disclosure of the specific information in the records."
[111] As discussed above, the adjudicator ultimately found that the evidence was not sufficient to establish that the disclosure of the shop theft numbers could reasonably be expected to result in the alleged harms. The adjudicator's findings must be read in conjunction with the confidential representations themselves so that the adjudicator's line of analysis can be fully understood.
[112] Deference means that even where there is more than one reasonable interpretation of a statutory provision, the administrative decision maker is entitled to choose from the reasonable interpretations, provided that she has properly justified her interpretation within the surrounding context.[^22] In this case, the adjudicator relied on legal tests consistent with the IPC's jurisprudence on the law enforcement exemption, the economic interests exemption, and the health and safety exemption.
[113] The LCBO essentially disagrees with the adjudicator's application of those tests to the facts before her, as well as her findings of fact. The LCBO’s arguments essentially ask this court to adjudicate the issues de novo which is not permissible in a review on the standard of reasonableness.
Access rights under FIPPA should be interpreted broadly
[114] The adjudicator's interpretation and application of the relevant tests to the facts before her aligns with one of the primary purposes of FIPPA, namely that access rights should be interpreted broadly and necessary exemptions from the right of access should be limited and specific:
In Miller Transit Limited v. Information and Privacy Commissioner of Ontario et al.,[^23] this Court found in a decision concerning a different exemption that also contains the language "could reasonably be expected to":
Access to information legislation must be interpreted within the context of its purpose which is to facilitate democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process and to hold politicians and bureaucrats accountable to the citizenry...According to s. 1 of the Act, statutory exemptions such as the third party exemption claimed in this case exist to protect privacy interests in "limited and specific" situations. Our courts have held that those exceptions from the general purpose of making government-held information available to the public are to be construed narrowly.
[115] The LCBO submits that, as noted by the Supreme Court of Canada in Childs v Desormeaux, 2006 SCC 18, at paras 19-21 [Childs], alcohol cannot be treated like an “ordinary commodity”. Its sale is tightly controlled and involves “additional steps to reduce the associated risks” such as measures designed to identify customers and ensure that the purchase complies with Ontario’s liquor laws, and security measures in place to deter theft.
[116] Nevertheless, the LCBO is bound by the provisions of the FIPPA relevant to this decision unless it brings itself within the specified exemptions and I am not persuaded that Childs is a basis to find the Order unreasonable. Moreover, s.77(2) of the Liquor Licence Control Act[^24] relied upon by McWatt A.C.J.S.C. was not argued before the adjudicator. If this section is to be relied upon for an exemption from disclosure, the matter should be returned for full argument to be made before the adjudicator.
Conclusion
[117] I would dismiss the Application.
Costs
[118] On agreement of the parties, there shall be no order for costs as each party will bear its own costs.
Backhouse J.
Released: August 10, 2023
CITATION: Liquor Control Board of Ontario v. Information & Privacy Commissioner of Ontario and Toronto Star, 2023 ONSC 4067
COURT FILE NO.: 570/22
DATE: 20230810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C., Backhouse and Howard JJ.
BETWEEN:
Liquor Control Board of Ontario (LCBO)
Applicant
– and –
Information and Privacy Commissioner of Ontario (IPC) and Toronto Star
Respondents
REASONS FOR JUDGMENT
Released: August 10, 2023
[^1]: Liquor Control Board of Ontario (Re), 2022 88665 (ON IPC) (“Order”). [^2]: R.S.O.1990, c. F.31 (“FIPPA”). [^3]: 2009 SCC 65 (“Vavilov”), at para. 124. [^4]: 2012 SCC 3, [2012] 1 SCR 23. [^5]: Ibid, at para.197. [^6]: 2021 42425 (Ont IPC). [^7]: Ontario (Community Safety and Correctional Services), 2007 46174 (ON SCDC), at paras. 27 and 77. [^8]: Order, at para. 13. [^9]: R.S.O. 1990, c. M.56. [^10]: Corporation of the Town of Arnprior v. Information and Privacy Commissioner of Ontario, 2016 ONSC 2904. [^11]: Ibid., at paras. 5, 8 and 36-39. [^12]: LCBO Representations, Public Record. [^13]: Workers’ Compensation Board v Ontario (Attorney-General), 1998 (ON CA)(“Workers’ Compensation Board"). [^14]: 2005 34228 (ON CA). [^15]: Ibid., at paras. 35-41. [^16]: Gartner Inc. v. Information and Privacy Commissioner of Ontario, 2017 ONSC 7181, at paras. 23-26. [^17]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654, at paras. 22-26; See also: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900, at para. 52; The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario, 2022 ONSC 6227, at paras. 27-30. [^18]: Vavilov, at para. 119. [^19]: Vavilov, at para. 91. [^20]: FIPPA, ss. 52(3) and 52(13); see also IPC Practice Direction no. 7 - Sharing of Representations (see, in particular, s. 5 that sets out criteria for confidentiality). [^21]: Order, at para. 5. [^22]: Vavilov, at para. 110. [^23]: 2013 ONSC 7139 at para. 45. [^24]: S.O. 2019, c. 15, Sched.22.