CITATION: Joseph et al. v. Information and Privacy Commissioner of Ontario et al., 2023 ONSC 995
DIVISIONAL COURT FILE NO.: DC-22-2694
DATE: 2023/01/09
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: ELSA JOSEPH ET AL., Applicants (Respondents)
and
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, Respondent (Moving Party)
and
OTTAWA POLICE SERVICE, Respondent (Respondent)
and
PIERRE LEDUC, Respondent (Respondent)
BEFORE: Justice H. J. Williams
COUNSEL: Elsa Joseph, Self-represented
Linda Hsiao-Chia Chen, Lawyer for Information and Privacy Commissioner of Ontario
Shawn Cléroux, Lawyer for Ottawa Police Service
Marshall Jeske, Lawyer for Pierre Leduc
HEARD: February 7, 2023
ENDORSEMENT
[1] The Information and Privacy Commissioner of Ontario has brought a motion to seal a portion of its record of proceedings in an application for judicial review.
[2] “Elsa Joseph et al.” have sought judicial review of two IPC decisions under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56. The IPC had ordered disclosure of two records relating to a police investigation but had permitted the Ottawa Police Service to redact certain information under an exemption pertaining to “another individual’s personal privacy.” Ms. Joseph objects to the redactions.
[3] On the judicial review application, the IPC proposes to include the redacted records in the “public” record of proceedings it would serve and file. The IPC seeks an order sealing a “private” unredacted copy of the recording of proceedings which it would file but not serve.
[4] Ms. Joseph does not accept that the information the IPC seeks to seal is of a personal nature. She argues that the information is already public. She argues that the private interest of the party whose information was sealed does not justify a sealing order. She says the test for a sealing order is not met.
[5] Section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that “[a] court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.” The test for a sealing order is set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522 (“Sierra”) at para. 53. Sierra provides that such an order must be necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk. The salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, must also outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. The IPC does not suggest that this is a case involving a privacy interest predicated on human dignity. (Sherman Estate v. Donovan, 2021 SCC 25.)
[6] In Gravenhurst (Town) v. Ontario (Information and Privacy Commissioner), 1993 8485 (ON SC), the court sealed the record of the IPC, concluding that public disclosure would predetermine an upcoming judicial review application and render it “nugatory”, or pointless. Later, in Fuda v. Ontario (Information and Privacy Commissioner) 2003 12661 (ON SCDC), at para. 10 and 13, this court observed that sealing orders are to be granted only in limited circumstances but that in freedom of information cases, they may be granted to prevent premature release of information that is the very subject matter of the litigation.
[7] The information the IPC seeks to seal in this case is limited: There are two records of documents in issue: (1) an OPS General Occurrence Report; and (2) emails relating to the OPS General Occurrence Report. There are three redactions in the 18-page General Occurrence Report and one redaction in the 27 pages of emails. The redacted information is that which was found to be exempt from disclosure in the decisions that are subject to judicial review.
[8] The IPC is not at liberty to disclose the unredacted documents. Under s. 55(1) of the Freedom of Information and Protection of Privacy Ac, R.S.O. 1990, c. F. 31, which applies to appeals under MFIPPA, the [Information and Privacy] Commissioner is not permitted to disclose any information that comes to their knowledge in the performance of their powers, duties and functions under this or any other Act.
[9] The arguments Ms. Joseph has raised in response to the motion may be more relevant to the judicial review application but had little bearing on the motion. Although Ms. Joseph said in her submissions that the redacted information is already public, there was no evidence in support of this submission and Ms. Joseph admitted that she did not have unredacted versions of several of the documents in issue.
[10] I agree with the IPC that if the unredacted records are filed on the judicial review application, Ms. Joseph will be granted access to the very information she is seeking through the judicial review application. I also agree that a sealing order is necessary to prevent a serious risk to important interests, including the just determination of the issues on this judicial review application and the integrity of the judicial review process in freedom of information cases such as this in general. In cases such as this, the public interest in preventing the predetermination of the legal issues that are at stake must trump the public interest in open and accessible court proceedings. I am satisfied that the salutary effects of protecting the information which is at issue prior to the disposition of the judicial review application outweigh any deleterious effects of sealing the documents. If the record is not sealed in this case, the issues on the judicial review application will become moot.
[11] The “private” version of the record of proceedings provided to me on this motion, which contains unredacted versions of the documents in the “public” record of proceedings, shall be sealed and shall be provided directly to the panel hearing the application, or its designate. The “private” version of the record of proceedings shall not be filed with the court in the normal course and shall not become part of the public record.
[12] No party requested costs. There shall be no costs of this motion.
Justice H.J. Williams
Released: February 9, 2023
CITATION: Joseph et al. v. Information and Privacy Commissioner of Ontario et al., 2023 ONSC 995
DIVISIONAL COURT FILE NO.: DC-22-2694
DATE: 2023/01/09
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
BETWEEN:
ELSA JOSEPH ET AL.
Applicants (Respondents)
and
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
Respondent (Moving Party)
and
OTTAWA POLICE SERVICE
Respondent
and
PIERRE LEDUC
Respondent
ENDORSEMENT
Williams J.
Released: February 9, 2023