Court File and Parties

2025 ONSC 7099

DIVISIONAL COURT FILE NO.: 795/24-JR

DATE: 2025-12-29

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Backhouse, Lococo and Kaufman JJ.

BETWEEN:

ATTORNEY GENERAL FOR ONTARIO Applicant

– and –

INFORMATION AND PRIVACY COMMISSIONER, REQUESTER #1, DR. BROOKS FALLIS and THE HONOURABLE DOUGLAS FORD Respondents

Counsel: Judie Im, Jennifer Boyczuk and Mariam Gagi, for the Applicant Linda Chen, for the Information and Privacy Commissioner of Ontario Paul Champ, for Dr. Brooks Fallis Gavin Tighe, K.C. and Stephen Thiele, for the Honourable Douglas Ford

HEARD at Toronto on December 10, 2025

REASONS FOR JUDGMENT

By The Court

Overview

[1] The applicant Attorney General for Ontario (the “AG”) seeks judicial review of two Final Orders (the “Decisions”) dated November 29, 2024 of the Information and Privacy Commission (“IPC”) made by Adjudicator Justine Wai (the “Adjudicator”), being Final Order PO-4576-F reported at 2024 ONIPC 122372 and Final Order PO-4577-F reported at 2024 ONIPC 122366. The Decisions found the Cabinet Office had control over those entries of Premier Ford’s personal cellphone call logs that related to government or departmental matters under s. 10(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). The AG, supported by Premier Ford, submits that the IPC unreasonably concluded that the requested records are in the control of the Cabinet office.

[2] It is now widely accepted that access to government information laws are vital tools of democratic practice, contributing to transparency, accountability and meaningful participation in public debate and political decision-making. The Decisions raise the important question of whether shielding phone logs from a personal cellphone that relate to departmental matters from public access would undermine the purposes of FIPPA.

[3] The IPC found that only those call logs related to government or departmental matters were in the control of Cabinet Office, not those relating to personal or constituency matters. The Decisions provide that the right to access the phone logs identified as government or departmental matters remains subject to any exemptions or exclusions in FIPPA.

[4] Deference is owed to the specialized knowledge and institutional expertise and experience of the IPC and its adjudicators in dealing with public officials using private devices for public business. The Decisions demonstrate a coherent and rational connection between the relevant facts, the outcome of the Decisions and the reasoning process that led the Adjudicator to that outcome. The Decisions are transparent, intelligible and justified. There is no basis on which this court should intervene. For the reasons set out below, the application is dismissed.

Background

[5] The respondents, Dr. Brooks Fallis and an unnamed journalist[^1] (together, “the Requesters”), submitted access requests under FIPPA seeking the Premier’s official government cellphone call‑log records. Dr. Fallis sought records for 47 specified days in late 2020 and early 2021. The journalist sought records for the period from October 31 to November 6, 2022. Specifically, they sought the name and phone number of each caller and the time and length of each call.

[6] Cabinet Office issued an access decision in response to their request for the Premier’s official government cellphone, releasing the monthly invoices for November 2020, December 2020, and January 2021. However, the invoices showed there was no phone call activity on the Premier’s official phone. Cabinet Office confirmed that no phone calls were made on the Premier’s government cellphone during these periods.

[7] The Requesters then contacted some of the Premier’s constituents, who advised that the Premier used his personal cellphone for public business in his role as Premier and the Requesters obtained the Premier’s personal cellphone number. The Requesters next submitted a request for the call logs relating to the Premier’s personal cellphone number on the basis that the invoices produced for the Premier’s government cellphone established that the Premier used another phone for public or government business.

Cabinet Office’s Denial of Both Requests

[8] Cabinet Office denied both requests. Upon the Requesters’ appeal of the denials to the IPC (discussed further below), Cabinet Office submitted that previous instances in which the IPC found that personal records to be under an institution’s control should be distinguished for the following reasons, as set out in each of the Decisions, at para. 16:

• The affected party’s personal cell phone logs are not in the physical possession of Cabinet Office.

• The appellant’s claims that the contents of the call logs are related to Cabinet Office matters are speculative and do not meet the National Defence test for control [see Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 (“National Defence”)]. Cabinet Office refers to Order MO-3607 in which the IPC held that general or speculative statements are not sufficient evidence that responsive records exist in a personal account. Cabinet Office submits that the call logs are inherently personal in nature and, therefore, have no concrete link to institutional business.

• There is a clear expectation of privacy with respect to the call logs. As such, it would be unreasonable and unwarranted for Cabinet Office to ask the affected party [the Premier] to provide Cabinet Office with his personal cell phone logs. Cabinet Office refers to Order MO-3068, in which the IPC determined that disclosing the City of Vaughan’s call logs between the city and the personal phone numbers of the City’s former mayor and manager would be an unjustified invasion of personal privacy. In that decision, the IPC found that calls from the former mayor and manager were made from their personal phone numbers and therefore, disclosing the information would reveal personal information.

IPC Decisions dated November 29, 2024

The Requesters’ submissions

[9] The Requesters appealed the Cabinet Office’s decisions to the IPC. The Requesters acknowledged on the appeal that the privacy of citizens is of the “utmost importance” and should be respected and upheld under FIPPA. However, they submitted that FIPPA also exists to promote transparency and argued that accountability can only be maintained when there is transparency. They contended that the Premier skirted transparency by choosing to use his personal cellphone while conducting public business on behalf of the people of Ontario. They submitted that the Premier should not be permitted to use personal privacy and his personal device to avoid transparency obligations.

Cabinet Office’s submissions

[10] In its submissions to the IPC, Cabinet Office relied upon the “control test” in National Defence and relevant factors in the IPC jurisprudence. It submitted that the call logs could not relate to a departmental matter and it would not be reasonable to obtain them (or request them) in the circumstances. It asserted that personal and constituency matters were outside the scope of FIPPA and the Premier, and individuals he spoke to, had a reasonable expectation of privacy over the call logs. Further, there was no “concrete evidence” linking a series of “bare telephone numbers” with a Cabinet Office matter, nor could that be ascertained from the record itself. Rather, it was not possible to determine the purpose of each call without conducting a “highly personally invasive”, “fishing expedition.” Moreover, the phone number was not assigned to a government account and Cabinet Office did not monitor or pay for or have any responsibility or authority over the call logs.

The Premier’s Submissions

[11] In addition to supporting the submissions of the AG, the Premier submitted that the request was an “impermissible and unjustified invasion of privacy” to which he did not consent. He further submitted that the office of the Premier was not an “institution” under FIPPA and constituency and personal matters were not Cabinet Office matters.

The Decisions

[12] The IPC cited s. 10(1) of FIPPA, the “control test” from National Defence, and certain factors in the IPC jurisprudence and held that some of the “entries in the [call logs] related to government business are under the control of Cabinet Office.” The IPC ordered Cabinet Office to obtain those entries from the Premier.

[13] The IPC found that both parts of the control test per National Defence were met and it would be contrary to the purpose of FIPPA to find that entries relating to Cabinet Office matters on the call logs were not in Cabinet Office’s control.

[14] The IPC accepted that the Premier’s personal cellphone was used for personal and constituency matters but found it reasonable to conclude that it was also used for Cabinet Office matters because:

(1) there were no calls on his government-issued cellphone for the same time period;

(2) he provided his personal cell number to members of the public; and

(3) it was unlikely that he received no Cabinet Office matter related calls on either phone.

[15] The IPC accepted that the Premier’s cellphone was paid for by him and contains his personal information and that of other callers. The AG acknowledged that had the Premier been using his government issued cellphone, the records created in relation to Cabinet Office matters were producible. The IPC concluded that, because it was reasonable for Cabinet Office to obtain records created in relation to Cabinet Office matters conducted on a government-issued cell phone, it would also be reasonable for it to obtain records created in relation to Cabinet Office matters conducted on a personal cellphone.

[16] The IPC found the entries in the call logs relating to government business are under the control of Cabinet Office and that the call logs that relate to any calls pertaining to the Premier’s personal or constituency matters are not under the control of Cabinet Office. The Adjudicator held that Cabinet Office could reasonably expect that the Premier would produce the entries in the call logs that relate to government business on his personal cellphone if requested. It further found that it is reasonable to expect the Premier would produce information relating to government business from his personal call logs upon request.

[17] The IPC found that the entries relating to departmental matters and therefore under the control of Cabinet Office may still be excluded from the application of FIPPA by s. 65 or may be subject to an exemption from the general right of access. In other words, the information that the IPC found under the custody or control of Cabinet Office may still be subject to the personal privacy exemption in s.21(1) of FIPPA which also would have been the case if the Premier had made calls on his government-assigned cellphone. Accordingly, the IPC found that, despite the claims of Cabinet Office and the Premier, there was no infringement of the personal privacy rights of any individuals, including the Premier. Rather, the Decisions stand for the proposition that information relating to government or departmental matters is under the control of the appropriate institution to ensure the public has a right of access to it, subject to any exemptions or exclusions in FIPPA.

[18] The IPC ordered that Cabinet Office consult with the Premier to identify which entries relate to government or departmental matters. Further, under s. 28(1) of FIPPA, Cabinet Office was ordered to provide written notice to the Premier of the potential disclosure of the call log entries that relate to government or departmental matters and allow him the opportunity to provide his views on their potential disclosure. Cabinet Office was ordered to then issue an access decision on any responsive records that are provided to it by the Premier, in accordance with the requirements of FIPPA.

Relevant Statutory Framework

[Freedom of Information and Protection of Privacy Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f31/latest/rso-1990-c-f31.html)

[19] Freedom of information legislation recognizes the importance of providing the public with a right of access to information held by public institutions. This broad right of access promotes transparency and accountability by allowing public scrutiny of institutions’ activities. This goal is explicitly recognized as one of the two overarching purposes of FIPPA:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

[20] The presumptive right to access information held by public institutions is found at s.10 of FIPPA, which provides that:

10. (1) Subject to subsection 69(2), every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,

(a) the record or the part of the record falls within one of the exemptions under sections 12 to 22; or

(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

[21] While not absolute, the right of access to information held by public institutions has been found by the Supreme Court of Canada to be quasi-constitutional in nature as a derivative right under the freedom of expression guaranteed in s. 2(b) of the Charter:[^2] Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 30.

[22] Transparency and access to information about the operations of institutions are critical to enabling the public to participate in the democratic process. The question of whether an institution has custody or control of a requested record is therefore to be interpreted broadly and liberally: National Defence, at para. 48.

[23] Once a record has been found to be in the custody or under the control of the institution, the record may still be protected from disclosure. The record may be subject to one of the exclusions in s. 65 of FIPPA that remove it from the application of FIPPA altogether, or to one of the exemptions from disclosure in ss. 12-22. Exemptions from the right of access in FIPPA include the mandatory exemption in s. 21(1)(f) from disclosure of personal information to third parties where disclosure would constitute an unjustified invasion of personal privacy (the “personal privacy exemption”) and the mandatory exemption in s. 12 for records that would reveal the substance of Cabinet deliberations (the “Cabinet records exemption”).

Court’s Jurisdiction and Standard of Review

[24] The court has jurisdiction over this judicial review under ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[25] The presumptive standard of review on judicial review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 25. There is no dispute that the reasonableness standard of review applies in this case.

Issues

1. Were the Decisions unreasonable in finding that the Premier used his personal cellphone for Cabinet Office matters?

2. Were the Decisions unreasonable in finding that call logs can relate to a departmental matter for the purposes of the National Defence test?

3. Did the Decisions unreasonably fail to consider all the relevant factors at part two of the National Defence test?

4. Were the Decisions unreasonable in applying the purpose of FIPPA?

Issue 1: Finding the Premier used his personal cellphone for Cabinet Office matters was not unreasonable

[26] The AG and the Premier argue:

(1) It was unreasonable for the IPO to conclude that the Premier used his personal cellphone for government business. They argue that this conclusion rested on an unfounded assumption and that there was no direct evidence to support it.

(2) The Decisions did not consider that alternative methods of communication, like video conferencing applications or the landline at the Premier’s constituency office, could be used instead of a cell phone.

(3) The Decisions misapprehended the evidence that the Premier gave out his personal number to conclude that he conducted cabinet office business on his personal cellphone because any communications with individuals from his personal phone would be in his personal capacity or his capacity as an elected representative.

[27] The conclusion that the Premier used his personal cellphone to conduct Cabinet Office matters is a finding of fact that attracts a high degree of deference. The AG and the Premier argue that this finding was based on hearsay and speculation submitted by the Requesters. Administrative decision makers may admit and consider hearsay evidence unless their enabling statute prohibits the admission of such evidence.[^3] The Supreme Court of Canada in Vavilov emphasized that reviewing courts should avoid interfering with findings of fact by administrative decision makers:

[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: …. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: . [Citations omitted.]

[28] The inference that the Premier used his personal phone for government business was a reasonable inference from other proven facts and the totality of the evidence that was available to the Adjudicator. The rules of evidence are clear that a court or other decision-maker does not require direct evidence to reach a certain finding of fact. In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2023 BCCA 70, 91 B.C.L.R. (6th) 58 (“Angel Acres”), at para. 172, the British Columbia Court of Appeal recently provided a summary of the law with respect to inferences:

[172] A factual inference is a conclusion as to the existence of further facts that may, not must, drawn from a proven fact or group of proven facts: David Watt, Watt's Manual of Criminal Evidence (Toronto: Thomson Reuters, 2021) at 126; R v Munoz (2006), 86 O.R. (3d) 134, 2006 ONSC 3269 at para. 24 and note 9. “[A] judge must rely on logic, common sense and experience, taking into account the totality of the evidence, when deciding whether to draw an inference”: Rain Coast Water Corp. [v. British Columbia, 2019 BCCA 201, 25 B.C.L.R. (6th) 316] at para. 69, citing R. v Calnen, 2019 SCC 6 at para.112. If there is no evidentiary basis for an invited inference, that is, if the inference does not flow logically and reasonably from established facts, the inference cannot be drawn: J.P. at para. 341, citing R. v Morrissey (1995), 97 C.C.C. (3d) 193 at 209, 1995 ONCA 3498. Doing so would amount to speculation or conjecture: J.P. at paras. 339–341; Rain Coast Water Corp. at para. 69.

[173] The evidence may support more than one inference. Further, to be relevant, it “need not prove conclusively the proposition of fact for which it is offered.” It need only “render the fact it is tendered to establish slightly more or less probable” than would be the case without it: R. v Evans, 2019 ONCA 715 at paras. 184-185.

[29] The Adjudicator relied on certain proven facts to draw an inference. In that regard, there was no dispute that there was no activity on the Premier’s government issued cellphone for the relevant periods. Further, it was undisputed that the Premier would use his personal cellphone for non-personal reasons, such as, for example, publicizing it so constituents and others could call him directly. Moreover, in its submissions to the IPC, Cabinet office submitted that it was likely that “many” of Premier Ford’s personal cellphone calls were for a personal purpose or a constituency matter, and that it was speculative to conclude that “all the telephone numbers […] related to a core, central and basic functions of the Cabinet Office”.[^4] Based on these facts, it was open to the Adjudicator to draw the inference that the Premier would sometimes use his personal cellphone for departmental or business matters. Put in another way, it is not “speculative” to make a factual inference that flows logically and reasonably from other established facts.

[30] The AG and the Premier argue that there was no “specific actual evidence” or “concrete evidence” that the Premier made departmental calls on his personal cellphone. Again, direct evidence is not required for a finding of fact because a decision maker can draw an inference. In addition, the Premier did not put forward an affidavit positively affirming that he refrained from making business calls on his personal phone. In many of the other IPC cases cited by the AG and the Premier, the government respondent submitted an affidavit, as contemplated by the IPC’s Practice Direction #6 – Affidavit and Other Evidence, IPC (Sept. 2024).[^5]

[31] Counsel for the Premier submitted that it was unreasonable to draw an adverse inference because no affidavit was submitted by the Premier. He submitted that the Premier was under no obligation to submit an affidavit.

[32] There is no basis for the submission that an adverse inference was drawn because no affidavit was submitted by the Premier affirming that he did not make government calls on his personal cellphone. The Premier was not required to submit an affidavit, but he clearly knew the case to meet. The fact that a party adduces evidence from which the judge is invited to draw an inference does not shift the burden of proof to the opposing party: Snell v. Farrell, 1990 SCC 70, [1990] 2 S.C.R. 311, at pp. 329-330. The opposing party has a choice. It may choose to adduce its own evidence on the point, but it is not obliged to do so. It is for that party to assess its risk in deciding whether or not to adduce evidence. Once all the evidence is in, the trier of fact will weigh it and determine whether to draw the invited inference: Angel Acres, at para. 172.

[33] In the absence of any direct evidence one way or the other regarding the Premier’s use of his personal cellphone for departmental business, it was not unreasonable for the Adjudicator to draw an inference based on the facts available.

[34] Finally, the AG and the Premier claim that there was evidence that the Premier’s constituency office had a landline, and his office conducted meetings on MS Teams that the Adjudicator did not consider. The Premier’s submissions to the Adjudicator noted only that his constituency office has a landline. They did not state that he uses it. Similarly, suggesting that the Premier may participate in virtual meetings on the Teams application does not preclude the use of his cellphone. These claims are not inconsistent with the Premier’s use of his personal cellphone for government business.

[35] The IPC is entitled to a high degree of deference on findings of fact and weighing of evidence: Vavilov, at paras. 75, 92-93; Newfoundland & Labrador Nurses' Union v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 15; Miller Transit Ltd. v. Ontario (Information and Privacy Commissioner), 2013 ONSC 7139, 118 O.R. (3d) 290 (Div. Ct.), at para. 23. This court should “not interfere unless the party seeking review has positively shown that the decision was unreasonable”: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 48.

[36] The Decisions were not unreasonable in finding that the Premier used his personal phone for Cabinet Office matters.

Issue 2: Were the Decisions unreasonable in finding that call logs can relate to a departmental matter for the purposes of the National Defence test?

[37] The Adjudicator in reaching her conclusion considered the two-part test posed by the Supreme Court of Canada in National Defence:

(1) Do the contents of the record relate to a departmental matter?

(2) Could the government institution reasonably expect to obtain a copy of the document upon request?

[38] At paragraph 43 of the Decisions, the Adjudicator quoted from para. 48 of National Defence in considering the concept of “control”:

[“Control”] should be given its ordinary and popular meaning. Further in order to create a meaningful right of access to government information it should be given a broad and liberal interpretation…In reaching a finding of whether records are “under the control of a government institution”, courts have considered “ultimate” control a well as “immediate” control, “partial” as well as “full” control, “transient” as well as “lasting” control, and “de jure” as well as “de facto” control. While “control” is to be given its broadest possible meaning, it cannot be stretched beyond reason. In this case, “control” means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a “partial” basis, a “transient” basis, or a “de facto” basis. The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act.

[39] The AG submits the Decisions were unreasonable in concluding that the call logs met the first part of the National Defence test because it is impossible to tell if call logs, which only list the telephone number and duration of a call, relate to a “departmental matter” or government business. Counsel for the Premier argues that a call log, unlike an email, is not a record with any substance.

[40] The AG argues that this step of the National Defence test is a threshold issue that must be determined with regard to the function of the institution (in this case, Cabinet Office) and the context and the creation of the record. It then argues that Cabinet Office supports the cabinet in executing its function and the call logs themselves cannot relate to any decision-making process because it is impossible to discern how any information in a call log relates to a departmental matter.

[41] The AG further argues that the only way to tell if the call logs related to a departmental matter is if the Premier annotated or supplemented the calls logs, which makes the Decisions unreasonable.

[42] The AG submits that in the absence of specific evidence of how the call logs relate to a departmental matter, the first step of the National Defence test is not met. The AG analogizes to IPC Order MO-3072, cited as Timmins Police Service Board (Re), 2014 ONIPC 41422 (“Timmins Police”), where the IPC found, at para. 39, that a police officer’s personal phone records were not held or under the control of the Timmins Police Service, with the result that they did not relate to a departmental matter.

The Decisions were not unreasonable in concluding that call-log records satisfy the first part of the National Defence test

[43] The IPC submits that the AG and the Premier did not raise this issue before the IPC. The Decisions cannot be said to be unreasonable for failing to directly consider an argument that was not raised.

[44] In any case, IPO Order MO-2821 cited as Toronto (City) (Re), 2012 ONIPC 81955 relied upon by the AG and the Premier, is distinguishable. Unlike in the municipal context where IPC jurisprudence has held that councillors are not employees or agents of the city, the Premier does carry out work for the Cabinet Office.

[45] The Adjudicator’s finding in the Decisions that the call logs contain government business is also otherwise distinguishable from Timmins Police and other cases where evidence could not reasonably be found to support a conclusion that a record is related to government business.

[46] In Timmins Police, the issue was whether the institution conducted a reasonable search for records, including the personal call logs of a police officer. Accordingly, there was only a brief statement in that decision related to the institution’s control over the personal call logs. The adjudicator noted, at para. 39, there was no evidence, besides a bald allegation, that there was any information in the personal call logs that related to the police officer acting in their professional capacity.

[47] The AG and the Premier also rely on IPC Order MO-3068, cited as Vaughan (City) (Re), 2014 ONIPC 38670 (“Vaughan 2”). That decision did not consider the issue of whether the institution had control over call logs. In that case, the call logs related to the personal cellphone of a former mayor and the home phones of the former mayor and a former city manager. The issue in that appeal was whether the call logs were exempt from disclosure under FIPPA’s personal privacy exemption. There was no evidence that the call logs at issue related to city business. The call‑log records at issue related to the former mayor’s personal cellphone and home phone for a period well after he left office. That is distinguishable from the facts in this case where the Premier was not a former premier and the evidence was that there were no calls whatsoever on the Premier’s government-issued phone.

[48] The Decisions require only that the Cabinet Office consult with the Premier to identify and obtain from him the entries on the call logs on his personal cellphone that relate to government or departmental matters. There is no requirement on the Premier to annotate or supplement.

[49] The AG concedes that had the Premier used his government-issued cell phone, these phone logs would be producible. The Premier is assigned a government cellphone for his use in carrying out work for Cabinet. If he used his government phone, its call logs would have related to departmental matters.

[50] It is expressly contemplated by ss. 24(1)(b) and 57(1)(a) of FIPPA that officials should expend “reasonable effort” to “locate” a record, which in this case would be sorting through the logs and making necessary inquiries to identify the relevant callers. Section 57(1) of FIPPA provides for fees to be paid by the requester for the costs of complying with a request for access to a record.

[51] The AG urges a strict and narrow interpretation of “departmental matter” at the first stage of the National Defence test to determine whether a record is under an institution’s control. This is contrary to para. 43 of National Defence which holds that in order to create a meaningful right of access to government information, “control” should be given a broad and liberal interpretation.

[52] The Adjudicator found that “the entries in the call logs that resulted from the [Premier’s] government-related calls are the very type of information [FIPPA] was created to ensure public access to, subject to limited and specific exemptions such as the personal privacy exemption”: Final Order PO-4576-F, at para. 51. The IPC has had considerable experience in dealing with public officials using private devices for public business. Deference is owed to the “specialized knowledge” and “institutional expertise and experience” of the IPC and its adjudicators in reaching this conclusion: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, 488 D.L.R. (4th) 1, at para 18.

[53] In Vaughan (City) (Re), 2012 ONIPC 44412 (“Vaughan 1”) there was a request for freedom of information related to a personal cellular device of the then still sitting mayor and a former employee, for telephone logs created when both were employees of the city. The adjudicator held that calls made to or from telephone numbers that relate to the city including the mayor, city employees and other city organizations, would not constitute personal information for the purpose of s. 21(1) of FIPPA (para. 33). The adjudicator held that it was possible to review the listed telephone numbers and identify calls made to or from telephone numbers that relate to the city for the purpose of the request for freedom of information for telephone logs (para. 33). It was not unreasonable for the Adjudicator to reach the same conclusion in the Decisions in this case. Contrary to the AG’s submission, we do not agree that Vaughan 1 is distinguishable on its facts, as noted further below.

[54] In light of prior court decisions and IPC jurisprudence, we conclude that it was not unreasonable for the Adjudicator to conclude that call‑log records satisfy the first part of the National Defence test.

Issue 3: Did the Decisions unreasonably fail to consider all the relevant factors at the second step of the National Defence test?

[55] The AG submits that the Decisions were unreasonable in relying on Cabinet Office’s ability to obtain call‑log records for a government‑issued phone to conclude that it could also obtain the Premier’s personal call logs. The AG further argues that the Adjudicator failed to consider all relevant factors in reaching this conclusion.

[56] The AG submits that call logs from government-issued phones are fundamentally different than call logs from the Premier’s personal cell phone because Cabinet Office is already in control of the call logs from government-issued call logs. It argues that personal records, political, and constituency records are not “public records” under the Archives and Recordkeeping Act, 2006, S.O. 2006, c. 34, Sched. A. The AG also argues that who pays for the cell phone should be determinative of the matter.

[57] Under the second step of the National Defence “control” test, the decision maker must consider “all relevant factors” to determine whether the government institution could reasonably expect to obtain a copy of the document on request. The Supreme Court identified the main factors as “the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder”: National Defence, at para. 56. IPC jurisprudence has identified other non-exhaustive factors.

[58] The AG submits that in Vaughan 1, unlike the facts here where the Premier paid for his own cellphone, the adjudicator relied on the fact the city reimbursed the mayor for his cell phone accounts and city policy required him to retain his records in coming to its conclusion on “control”.

[59] The AG acknowledges that the Adjudicator identifies some relevant factors but claims that the key ones for the institution ‒ the phone was owned and paid for by the Premier and the logs could contain personal information ‒ were given “no weight”.

[60] We do not agree. We see no unreasonableness in the IPC’s analysis.

[61] A fair review of the Decisions demonstrates that the Adjudicator attached significant weight to the fact the phone was owned by the [Premier] and “the call logs could contain the personal information of the affected party and other individuals who called or received calls from the affected party the [Premier] regarding personal matters”: Final Order PO-4576-F, para. 48. However, the Adjudicator’s analysis turned on the fact that this was essentially a problem of the Premier’s making because he made no effort to separate his personal calls from his business calls. As the IPC stated in the Decision PO-4576-F, at para. 52:

[52] The government-issued cell phone was provided to create and log all government-related phone calls and provide a clear separation between the affected party’s [the Premier’s] personal matters, his constituency matters, and his government or department-related matters. I acknowledge it can be challenging to separate the different roles the affected party plays as an elected official and private citizen. Nonetheless, it is incumbent upon elected officials to use their various devices in their various roles appropriately, to protect the public’s right of access under the Act, and to effectively separate government business from their personal and constituency matters. In this case, it appears the affected party did not make such distinctions between personal and professional matters as he made no calls on his government-issued cell phone. In light of the unique circumstances in this appeal, I find Cabinet Office has control over the call log entries that relate to government or departmental matters.

[62] The AG refers to several other factors that it suggests should have been considered. However, the caselaw is clear that not all factors may apply or be relevant in a specific case: see Children's Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2017 ONSC 642, 16 Admin. L.R. (6th) 125 (Div. Ct.), at para. 95.

[63] As noted above, the AG also argues that, pursuant to the Archives and Record Keeping Act, the Premier’s personal phone call logs could not be public records. However, it is not clear that the authority relied on by the AG (a publication by Archives Ontario on “Minister’s Public Records”[^6]) supports that conclusion. That report highlights that personal records that contain government business may be a “public record” if they are not maintained separately:

Personal, political and constituency records are not subject to the Archives and Recordkeeping Act, 2006 or the Freedom of Information and Protection of Privacy Act (FIPPA) when they are maintained and stored separately from ministers' public records. The Information and Privacy Commissioner has ruled, however, that these records may fall under the jurisdiction of FIPPA if they are integrated with the public records of the minister (Order P-267). Care should therefore be taken to ensure that ministers' and parliamentary assistants' personal, political and constituency records are organized, maintained and stored separately from ministers' public records. (Underline emphasis added. Bold in original.)

[64] We conclude that the AG has not established that the Decisions unreasonably failed to consider all the relevant factors at the second part of the National Defence test.

Issue 4: Were the Decisions unreasonable in applying the purpose of FIPPA?

[65] The AG submits the Decisions unreasonably concluded that granting limited access to the Premier’s personal cellphone records would be consistent with the purpose of FIPPA and that Decisions unreasonably failed to consider the practicalities of the orders.

[66] The AG submits that the Decisions failed to consider the paramount importance of privacy, one of the twin objectives of FIPPA, in giving effect to its intent. The AG argues that communications between an elected official and their constituents is private for both the constituent and the representative and the IPC failed to address how disclosing this kind of information is consistent with the purposes of FIPPA.

[67] In Final Order PO-4576-F, at para. 53, the IPC expressly held that Cabinet Office did not have control over personal or constituency matters. As a first step, the Adjudicator directed the Cabinet Office to obtain only “government or department related entries” from the Premier’s phone logs and to review them before making any access decision. That does not involve a public disclosure. While this will potentially involve some personal information being reviewed by Cabinet Office, government departments regularly process, store and protect confidential personal information. This is not inconsistent with protection of privacy under FIPPA. The exemption prohibiting disclosure of personal information in the possession of government institutions recognizes that fact.

[68] The Adjudicator reasonably concluded that the “control” test must be interpreted and applied in light of the statutory purpose of ensuring the public has a right of access to government information subject to exemptions such as the personal privacy exemption. The Adjudicator’s concern was that finding the records were not within the control of the Cabinet Office would undermine that purpose, as found at para. 51 of Final Order PO-4576.

[69] The Decisions were reasonable in their consideration of FIPPA’s purpose. The Decisions adequately weighed the purpose of access to information and how not granting that access would interfere with a citizen’s right to fully participate in democracy. The Adjudicator considered privacy and was careful to protect personal privacy. Finally, the work required to identify the government business in the call logs would not impair effective government. This is no different than when an institution is required to search voluminous records to find records that are responsive to a request. This work would not have been necessary if the Premier used his government phone.

Procedural Fairness

[70] The parties did not make submissions at the hearing on procedural fairness. The Premier in his factum appears to allege that the Adjudicator was biased towards him. He also submits that the Adjudicator failed to consider his supplementary submissions or share them with the parties.

[71] The Premier has not established any procedural unfairness toward him. The Adjudicator did not seek or request supplementary submissions from the Premier and he submitted them on his own initiative. In addition, the Premier could have but did not request the IPC to reconsider its order based on the supplementary submissions, which would have cured any defect.

Disposition

[72] The application is dismissed. As no parties are seeking costs, no costs are awarded.

Backhouse J.

Lococo J.

Kaufman J.

Released: December 29, 2025

[^1]: The journalist is not a participant in this judicial review. [^2]: Canadian Charter of Rights and Freedoms, 1982, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^3]: Although the IPC is not bound by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) which explicitly provides in s. 15 that hearsay can be accepted by the tribunals to which the SPPA applies, FIPPA gives the IPC broader discretion to manage its own processes and FIPPA does not prevent the IPC from admitting hearsay evidence in its adjudicative processes. [^4]: Decision PO-4576-F, at para 26. [^5]: For comparative example, see Cabinet Office (Re), 2025 ONIPC 38316, at para 16; and Springwater (Springwater) (Re), 2018 ONIPC 46658, at paras. 75, 78 and 80, where the Mayor made “unequivocal statements” that he did not use his personal accounts for conducting the business of the town and did not share information “outside official channels of communication.” Final Order PO-4576-F, at para. 26. [^6]: Archives of Ontario, Government of Ontario Common Records Series on Minister’s Public Records (11 August 2011), p. 16 (Online).