CITATION: Youbi-Misaac v. Information and Privacy Commissioner of Ontario, 2024 ONSC 5049
DIVISIONAL COURT FILE NO.: DC-23-389- JR DATE: 20240911
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BACKHOUSE, RYAN BELL, O’BRIEN JJ.
BETWEEN:
DIMITRI YOUBI-MISAAC Self-Represented Applicant Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO CATHY HAMILTON (ADJUDICATOR) Respondent
James Schneider, for the Respondent
HEARD at Toronto: September 11, 2024
REASONS FOR DECISION
Ryan Bell J. (Orally):
[1] The applicant applies to judicially review two decisions of Adjudicator Hamilton of the Information and Privacy Commissioner of Ontario: Order PO-4383, dated April 27, 2023 (the “Order”) and Reconsideration Order PO-4404-R, dated June 13, 2023 (the “Reconsideration Order”).
[2] The applicant appealed to the IPC from a decision made by Seneca College of Applied Arts and Technology regarding the applicant’s request for access to information under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). The applicant’s request was for records relating to a ridesharing service provided at the College. At the outset of the adjudication stage of the IPC appeal process, the Adjudicator issued a Notice of Inquiry to the College which identified the issue of whether the College had conducted a reasonable search for responsive records and provided directions to the College on representations and information that would assist the Adjudicator in determining this issue. The directions included the following:
This information is to be provided in affidavit form. The affidavit should be signed by the person or persons who conducted the actual search. It should be signed and sworn or affirmed before a person authorized to administer oaths or affirmations.
[3] The College submitted an affidavit from the College’s Privacy Officer outlining the steps she took to coordinate the College’s search for responsive records across multiple departments. In his representations to the Adjudicator, the applicant argued that the description of searches undertaken by various College employees should be “back[ed] up” through separate affidavits from each staff member who conducted searches for records.
[4] In the Order, the Adjudicator rejected the applicant’s position and found that “it was sufficient for the college to provide its evidence to the IPC by way of one affidavit sworn by the college’s Privacy Officer on its behalf.” The Adjudicator upheld the College’s search for records as being reasonable.
[5] The applicant sought reconsideration of the Order. In addition to his earlier arguments, the applicant argued that the Adjudicator’s failure to require affidavits from each of the staff members who conducted the searches was inconsistent with the directions set out in the Notice of Inquiry, resulting in a fundamental defect in the adjudication process. In the Reconsideration Order, the Adjudicator confirmed her decision with respect to the affidavit evidence and found that the applicant had not established a ground for reconsideration.
[6] On the application for judicial review, the applicant argues that by accepting the affidavit evidence of the College’s Privacy Officer on the issue of whether the College conducted a reasonable search for responsive records, the Adjudicator committed an error of law, exercised her discretion in bad faith, failed to take statutory requirements into account, and breached the rules of natural justice and procedural fairness.
[7] The applicable standard of review for decisions of the IPC is reasonableness. With respect to procedural fairness, the question is whether procedural fairness was accorded.
[8] Section 10(1) of FIPPA grants the public a right of access to a record in the custody or under the control of an institution unless one of the statutory exemptions applies. An institution must issue an access decision to the requestor with respect to records identified in its search. Where a requestor believes additional records exist beyond those identified by the institution, they may appeal the decision to the IPC.
[9] As the Adjudicator correctly observed, FIPPA does not require the institution to prove with absolute certainty that records, or additional records, do not exist – to discharge its statutory obligations, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate any records that are responsive to the request.
[10] The IPC’s decision concerning the institution’s search for responsive records meets the reasonableness standard of review where: (i) the adjudicator applied established and well-reasoned principles to assess the reasonableness of the institution’s search; (ii) the adjudicator considered all the relevant evidence in coming to their conclusion; and (iii) the applicant provided no reasonable basis for concluding that additional responsive records existed: Whitney v. Information and Privacy Commissioner of Ontario, 2013 ONSC 996, at para. 12.
[11] The Adjudicator applied established and well-reasoned principles to assess the reasonableness of the College’s search. The affidavit evidence before the Adjudicator addressed in detail the relevant experience of the employees who conducted the searches for responsive records, the criteria for and the parameters of those searches, and the areas searched. The Adjudicator’s review of the evidence and the law and her findings are consistent with rulings of this Court upholding the IPC’s decisions on reasonable search.
[12] The Adjudicator was entitled to find the College had provided sufficient evidence to establish that reasonable searches were conducted for responsive records. Based on the evidence before her, the Adjudicator found that “at least six employees knowledgeable in the subject matter of the request expended a reasonable effort to locate approximately 325 records that were responsive to the request.” The Adjudicator specifically addressed and ultimately rejected the applicant’s position that each staff member who conducted searches should have sworn separate affidavits. The Privacy Officer’s affidavit was detailed and comprehensive. The Privacy Officer coordinated the search for records. Her affidavit outlined the departments and employees the Privacy Officer identified to assist with the search for responsive records, the employees she met with, the dates of the meetings, the instructions she provided on the scope of the searches, her discussions with various employees, and the records she received from the employees after conducting the searches. Copies of the notices and emails she exchanged during the search for records were attached to the affidavit.
[13] The Adjudicator’s conclusion that the College had conducted a reasonable search for responsive records was reasonable.
[14] The Adjudicator denied the applicant’s request for reconsideration on the basis that he failed to establish a requisite ground for reconsideration. The decision of whether or not to grant a reconsideration request is discretionary and is entitled to deference: Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275, at para. 127. The applicant argued that there was a fundamental defect in the adjudication process because the affidavit evidence provided by the College was inconsistent with the Notice of Inquiry.
[15] The Adjudicator rejected the applicant’s argument that there was a fundamental defect in the adjudication process. The Adjudicator noted that the Privacy Officer was involved in responding to the applicant’s request for records, coordinated the steps taken in the College’s search effort, and was in a position to explain the scope of the search based on her own knowledge of responding to requests and her belief of the steps taken and by whom in the search for records in this case. The Adjudicator affirmed that she accepted the College was in the best position to choose the appropriate person to provide evidence regarding its search.
[16] There is no statutory, regulatory, or procedural obligation that limited the Adjudicator’s exercise of discretion in accepting the Privacy Officer’s affidavit and not requiring affidavits from multiple staff members. The IPC’s Code of Procedure explicitly provides for flexibility in the conduct of individual inquiries. In addition, Rule 20.01 provides that “The IPC may waive or vary any of the procedures prescribed by or under this Code, including any requirements or time period specified in any written communications from the IPC, if it is of the opinion that it would be advisable to do so in order to secure the just and expeditious determination of the issues.”
[17] The IPC’s Code of Procedure does not create any binding requirements regarding a Notice of Inquiry – it is a procedural tool used by the presiding adjudicator to manage the hearing process. The Adjudicator recognized that she had the authority to control the inquiry process. The Adjudicator concluded that the content of the College’s affidavit evidence satisfied the test for a reasonable search. The Adjudicator’s decision in this regard was reasonable as was her conclusion that there was no fundamental defect in the adjudication process.
[18] For the same reasons, we conclude that there was no denial of natural justice and that the applicant was accorded procedural fairness.
[19] In his submissions to this Court, the applicant has raised new arguments and seeks to expand the record of proceeding. The new arguments are not properly before us because they were not before the Adjudicator. We have disregarded the applicant’s efforts to expand the record because the proposed evidence fails to meet the test in Keeprite Workers’ Independent Union v. Keeprite Products Ltd..
[20] For these reasons, the application for judicial review is dismissed. In accordance with the agreement of the parties, there shall be no order as to costs.
Ryan Bell J.
I agree:
Backhouse J.
I agree:
O’Brien J.
Oral Reasons Released: September 11, 2024 Written Endorsement Released: September 19, 2024
CITATION: Youbi-Misaac v. Information and Privacy Commissioner of Ontario, 2024 ONSC 5049
DIVISIONAL COURT FILE NO.: DC-23-389- JR DATE: 20240911
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BACKHOUSE, RYAN BELL, O’BRIEN JJ.
BETWEEN:
DIMITRI YOUBI-MISAAC Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO CATHY HAMILTON (ADJUDICATOR) Respondent
ORAL REASONS FOR DECISION
Ryan Bell J.
Oral Reasons Released: September 11, 2024 Written Endorsement Released: September 19, 2024