Supreme Court of Canada

Appeal Heard: April 18, 2023 Judgment Rendered: February 2, 2024 Docket: 40078

Parties

Between:

Attorney General of Ontario — Appellant

and

Information and Privacy Commissioner of Ontario and Canadian Broadcasting Corporation — Respondents

— and —

Attorney General of British Columbia, Attorney General of Alberta, Canadian Civil Liberties Association, BC Freedom of Information and Privacy Association, Centre for Free Expression, Canadian Journalists for Free Expression, Canadian Association of Journalists and Aboriginal Peoples Television Network — Interveners

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O'Bonsawin JJ.

Reasons for Judgment: (paras. 1 to 64) Karakatsanis J. (Wagner C.J. and Rowe, Martin, Jamal and O'Bonsawin JJ. concurring)

Concurring Reasons: (paras. 65 to 83) Côté J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Indexed as: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)

2024 SCC 4

File No.: 40078.

2023: April 18; 2024: February 2.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O'Bonsawin JJ.

on appeal from the court of appeal for ontario

Headnote

Access to information — Exemptions — Cabinet records — Mandate letters — Cabinet records exempted by provincial legislation from general right of public access to government‑held information — Cabinet records exemption applicable when disclosure would reveal substance of cabinet deliberations — Whether cabinet records exemption protects mandate letters prepared for cabinet ministers by premier from disclosure — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, s. 12(1).

A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018. The letters set out the Premier's views on policy priorities for the government's term in office. Cabinet Office declined the journalist's request. It claimed the letters were exempt from disclosure under the Cabinet records exemption in s. 12(1) of Ontario's Freedom of Information and Protection of Privacy Act ("FIPPA"), which protects, in its opening words, the confidentiality of records that would reveal the "substance of deliberations" of Cabinet or its committees. The CBC appealed to the Information and Privacy Commissioner of Ontario ("IPC or Commissioner"), who found that the letters were not exempt and ordered their disclosure. On judicial review, the Divisional Court found that the IPC's decision was reasonable and a majority of the Court of Appeal agreed.

Held: The appeal should be allowed and the order of the IPC set aside.

Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O'Bonsawin JJ.: The mandate letters are protected from disclosure under s. 12(1) of FIPPA. The opening words of s. 12(1) demand a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations. Statutory text, purpose, and context lead inexorably to the conclusion that the mandate letters are protected from disclosure under s. 12(1)'s opening words. The mandate letters reflect the view of the Premier on the importance of certain policy priorities and mark the initiation of a fluid process of policy formulation within Cabinet. The letters are revealing of the substance of Cabinet deliberations.

Freedom of information legislation strikes a balance between the public's need to know and the confidentiality the executive requires to govern effectively. All such legislation across Canada balances these two essential goals through a general right of public access to government‑held information subject to exemptions or exclusions — including those for Cabinet records or confidences. In Ontario, s. 12(1) of FIPPA exempts a list of records, as well as any other records that would reveal the substance of deliberations of Cabinet or its committees. The legislative context shows that this exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality. But beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention. Because s. 12(1) was designed to preserve the secrecy of Cabinet's deliberative process, the constitutional dimension of Cabinet secrecy is crucial context in interpreting s. 12(1).

In Canada's constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility. Responsible government is a fundamental principle of Canada's system of government and the most important non-federal characteristic of the Canadian Constitution. Cabinet secrecy derives from the collective dimension of ministerial responsibility, which requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny. This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced. These purposes are referred to as the candour and solidarity rationales for Cabinet confidentiality. There is also a third rationale for the convention of Cabinet confidentiality: it promotes the efficiency of the collective decision-making process. Thus, Cabinet secrecy promotes candour, solidarity, and efficiency, all in aid of effective government.

The prerogative to determine when and how to announce Cabinet decisions is grounded in the harmful impact that premature disclosure of policy priorities can have on the deliberative process. The efficiency of the deliberative process justifies keeping Cabinet proceedings confidential until a final decision is made and announced. Publicizing Cabinet's decision-making process before the formulation and announcement of a final decision would increase the public pressure that stakeholders put on ministers and give rise to partisan criticism from their political opponents; this scrutiny would ultimately paralyze the collective decision-making process. The substance of Cabinet deliberations also encompasses discussion of when and how to communicate government priorities.

Cabinet's deliberative process consists of discussion, consultation, and policy formulation between the Premier, individual ministers, and Cabinet as a whole. The first minister, as head of Cabinet, enjoys extensive powers within Cabinet's deliberative process. In many regards, the role and activities of the Premier are inseparable from Cabinet and its deliberations. First ministers preside over Cabinet, set Cabinet agendas, determine Cabinet's membership and internal structure, set Cabinet procedures, and have the right to identify the consensus and determine what Cabinet has decided. Agenda‑setting, which occurs at an early stage, is a crucial part of the decision-making process. Though deliberative processes have changed over time at both the provincial and federal levels, the critical role of agenda-setting and the central involvement of the first minister in this exercise have remained constant. Not all stages of Cabinet's deliberative process take place sitting around the Cabinet table behind a closed door. The decision-making process in Cabinet extends beyond formal meetings of Cabinet or its committees. The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet's deliberative process, and will be revealing of the substance of Cabinet deliberations when compared against subsequent government action.

In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive to the vital importance of public access to government-held information but also to Cabinet secrecy's core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity. They must also be attentive to the dynamic nature of executive decision-making, the function of Cabinet itself and its individual members, the role of the Premier, and Cabinet's prerogative to determine when and how to announce its decisions.

In the instant case, it is not necessary to resolve the issue of standard of review, as the same conclusion follows regardless of whether the standard of review of the IPC's decision is correctness or reasonableness. The narrow zone of protection for Cabinet deliberations created by the IPC's interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness. The IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process. As a result, the IPC's narrow interpretation of the "substance of deliberations" was unreasonable, as was his application of the provision to the mandate letters.

Per Côté J.: There is agreement with the majority's interpretation of s. 12(1) of FIPPA, and with its conclusion that the mandate letters at issue are exempt from disclosure under that provision. However, there is disagreement with the majority's statement that it is not necessary to resolve the question of the applicable standard of review.

The Court has recognized that correctness review is necessary to resolve general questions of law — such as the appropriateness of limits on solicitor-client privilege and the scope of parliamentary privilege — that are of fundamental importance and broad applicability, with significant legal consequences for the justice system as a whole. The scope of Cabinet privilege is not a question particular to Ontario's specific regulatory regime and there is no principled reason why Cabinet privilege should be treated any differently — or is any less important to the legal system as a whole — than solicitor‑client privilege or parliamentary privilege. The scope of Cabinet privilege is a question of central importance to the legal system as a whole. It must be reviewed for correctness because courts, when conducting a reasonableness review, cannot provide the single determinate answer that such questions require.

In the instant case, there is disagreement with the majority that the same conclusion follows regardless of whether the standard of review is correctness or reasonableness. The Commissioner's reasons were intelligible and transparent and a number of relevant factors weigh in favour of the Commissioner's interpretation of s. 12(1). The fact that the majority would have reached a different conclusion does not make the Commissioner's decision unreasonable. A court conducting reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached. The majority fails to apply this methodology in practice.

However, there is agreement with the majority's interpretation of the scope of Cabinet privilege, which is the correct interpretation, and with its conclusion that the mandate letters are exempt from disclosure under s. 12(1). The "substance of deliberations" encompasses Cabinet's deliberative process from beginning to end, including directives and policy priorities communicated by the Premier to individual ministers. By concluding otherwise, the Commissioner adopted an incorrect interpretation.

Cases Cited

By Karakatsanis J.

Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Carey v. Ontario, [1986] 2 S.C.R. 637; Order PO-1725; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3; Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Conway v. Rimmer, [1968] A.C. 910.

By Côté J.

Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat), 2001 NSCA 132, 197 N.S.R. (2d) 154; Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) (1998), 111 B.C.A.C. 95; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.

Statutes and Regulations Cited

Access to Information Act, R.S.C. 1985, c. A‑1, s. 69.

Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A‑1.2, s. 27.

Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20, ss. 13 to 14.

Access to Information and Protection of Privacy Act, C.S.Nu., c. A‑20, s. 13.

Access to Information and Protection of Privacy Act, S.Y. 2018, c. 9, s. 67.

Act respecting Access to documents held by public bodies and the Protection of personal information, CQLR, c. A-2.1, ss. 30 to 38.

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39.

Freedom of Information and Protection of Privacy Act, C.C.S.M., c. F175, s. 19.

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 22.

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 12.

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss. 1(a)(ii), 12(1), 16, 20, 21.

Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 13.

Freedom of Information and Protection of Privacy Act, S.P.E.I. 2001, c. 37, s. 20.

Freedom of Information and Protection of Privacy Act, S.S. 1990‑91, c. F‑22.01, s. 16.

Authors Cited

Bakvis, Herman. "Prime Minister and Cabinet in Canada: An Autocracy in Need of Reform?" (2000), 35:4 J. Can. Stud. 60.

Brooks, Stephen. Canadian Democracy, 9th ed. Don Mills, Ont.: Oxford University Press, 2020.

Campagnolo, Yan. Behind Closed Doors: The Law and Politics of Cabinet Secrecy. Vancouver: UBC Press, 2021.

Campagnolo, Yan. "The Political Legitimacy of Cabinet Secrecy" (2017), 51 R.J.T.U.M. 51.

Canada. Privy Council Office. A drafter's guide to cabinet documents. Ottawa, 2013.

d'Ombrain, Nicholas. "Cabinet secrecy" (2004), 47 Can. Pub. Admin. 332.

Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law & Politics, 2nd ed. Don Mills, Ont.: Oxford University Press, 2014.

Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2023 (updated 2023, release 1).

Ontario. Commission on Freedom of Information and Individual Privacy. Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy. Toronto, 1980.

Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 21, 1st Sess., 33rd Parl., July 12, 1985, pp. 753-55.

Ontario. Office of the Premier. A Government for the People: Speech from the Throne, July 12, 2018 (online: https://news.ontario.ca/en/speech/49713/a-government-for-the-people; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC4_1_eng.pdf).

Schacter, Mark, and Phillip Haid. Cabinet Decision-Making in Canada: Lessons and Practices. Ottawa: Institute on Governance, 1999.

White, Graham. Cabinets and First Ministers. Vancouver: UBC Press, 2005.

APPEAL from a judgment of the Ontario Court of Appeal (Gillese, Lauwers and Sossin JJ.A.), 2022 ONCA 74, 160 O.R. (3d) 481, 465 D.L.R. (4th) 707, 93 Admin. L.R. (6th) 17, [2022] O.J. No. 430 (Lexis), 2022 CarswellOnt 859 (WL), affirming a decision of Swinton, Penny and Kristjanson JJ., 2020 ONSC 5085, 93 Admin. L.R. (6th) 1, [2020] O.J. No. 3606 (Lexis), 2020 CarswellOnt 12185 (WL), affirming a decision of the Information and Privacy Commissioner of Ontario, Order PO‑3973, [2019] O.I.P.C. No. 155 (Lexis). Appeal allowed.

Counsel

Judie Im, Nadia Laeeque and Jennifer Boyczuk, for the appellant.

William S. Challis and Linda Chen, for the respondent the Information and Privacy Commissioner of Ontario.

Justin Safayeni, Spencer Bass and Dustin Milligan, for the respondent the Canadian Broadcasting Corporation.

Tara Callan, Tamara Saunders and Layli Antinuk, for the intervener the Attorney General of British Columbia.

Sean McDonough and Melissa Burkett, for the intervener the Attorney General of Alberta.

Iris Fischer and Gregory Sheppard, for the intervener the Canadian Civil Liberties Association.

Sean Hern, K.C., and Benjamin Isitt, for the intervener the BC Freedom of Information and Privacy Association.

Jessica Orkin and Adriel Weaver, for the interveners the Centre for Free Expression, the Canadian Journalists for Free Expression, the Canadian Association of Journalists and the Aboriginal Peoples Television Network.

Reasons for Judgment

The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O'Bonsawin JJ. was delivered by

Karakatsanis J. —

I. Introduction

[ 1 ] Freedom of information (FOI) legislation strikes a balance between the public's need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.

[ 2 ] Access to information promotes transparency, accountability, and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to "improve the workings of government" by making it "more effective, responsive and accountable" to both the legislative branch and the public (Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 63).

[ 3 ] However, in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play "critical and complementary roles in our constitutional democracy" and "each branch will be unable to fulfill its role if it is unduly interfered with by the others" (Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution "to perform its constitutionally-assigned functions" (British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is "essential to good government" (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet's deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, [1986] 2 S.C.R. 637, at pp. 658-59).

[ 4 ] All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario's Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the "substance of deliberations" of Cabinet or its committees. The interpretation of "substance of deliberations" by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.

[ 5 ] The access to information dispute in this appeal arises out of a Canadian Broadcasting Corporation (CBC) journalist's request to access 23 letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018 (Letters). These Letters, commonly called "mandate letters", set out the Premier's views on policy priorities for the government's term in office. Cabinet Office declined the journalist's request, claiming the Letters were exempt from disclosure under s. 12(1) of FIPPA.

[ 6 ] The CBC appealed to the IPC, who found that the Letters were not exempt and ordered their disclosure (Order PO-3973). On judicial review, the Ontario Divisional Court found that the IPC's decision was reasonable and a majority of the Ontario Court of Appeal agreed (2020 ONSC 5085, 93 Admin. L.R. (6th) 1; 2022 ONCA 74, 160 O.R. (3d) 481). In dissent, Lauwers J.A. would have found that the decision was unreasonable for several reasons, but mainly because it eroded the sphere of Cabinet privilege that s. 12(1) is designed to preserve.

[ 7 ] As I shall explain, I conclude that the IPC's decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet's decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded "outcomes" of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.

[ 8 ] Moreover, even on the Commissioner's interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC's characterization of the Letters as containing only non-exempt "topics" or final "outcomes" of the Premier's deliberative process did not account for the broader context of the Cabinet's deliberative process. For one, as head of Cabinet, the Premier's deliberations cannot be artificially segmented from those of Cabinet. And far from being mere "topics" like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.

[ 9 ] I would allow the appeal and set aside the decision of the IPC.

II. Reasons of the IPC

[ 10 ] Before the IPC, Cabinet Office submitted the Letters should be protected for three reasons: (1) the Letters were placed on the agenda of Cabinet's initial meeting, provided to each minister during the meeting, and the Premier's key messages on policy initiatives would have been discussed at that meeting; (2) the Letters reveal the deliberations of the Premier in setting policy priorities for Cabinet, which are inherently part of the deliberative process of Cabinet; and (3) disclosure of the Letters would reveal the substance of future Cabinet deliberations because many priorities outlined in the Letters require deliberation by Cabinet and its committees before implementation (paras. 26-29). Cabinet Office submitted that prematurely disclosing policy initiatives could endanger free and frank discussion of these initiatives in future Cabinet meetings, and stressed the prerogative of the Premier "to determine the manner and timing by which the government will disclose its policy priorities" (paras. 30 and 32).

[ 11 ] The IPC found the Letters were not protected by s. 12(1) and ordered they be disclosed. The IPC began by examining the purpose of the Cabinet records exemption, given two underlying rationales for preserving the confidentiality of Cabinet deliberations: ministerial candour and solidarity. He found that the purpose was "to promote the free and frank discussion among Cabinet members of issues coming before them for decision, without concern for the chilling effect that might result from disclosure of their statements or the material on which they are deliberating" (para. 86).

[ 12 ] The IPC rejected the CBC's argument that "substance of deliberations" should be restricted to records revealing discussion of the pros and cons of a course of action. He recognized that "the exemption may extend more generally to include Cabinet members' views, opinions, thoughts, ideas and concerns" expressed in the deliberative process and to documents that "were intended to serve, or did serve, as . . . the basis for discussions by Cabinet as a whole" (paras. 98 and 113; see also paras. 116, 119 and 131). The IPC noted that, generally, "[s]ection 12(1) is designed to protect deliberative communications occurring within" Cabinet's policy-making process, not the "outcomes" of that process (i.e. the decisions themselves) or mere "subjects" or "topics" of deliberation (paras. 92 and 104). Still, he recognized that topics or subject matters will be exempt where "the context or other additional information would permit the reader to draw accurate inferences" as to Cabinet deliberations (para. 100, quoting Order PO-1725, at p. 16). Later in his decision, the IPC relied on past precedent interpreting s. 12(1)(a) to hold that records not falling within the specific exemptions at s. 12(1)(a) to (f) will only qualify for protection where it is likely disclosure "would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting" (paras. 94, 101 and 121).

[ 13 ] In the application, the IPC held the Letters were not protected because nothing suggested they were intended to serve, or served, as the basis for discussions by Cabinet as a whole (paras. 113-14). At most, the Letters indicate topics that may have arisen during a Cabinet meeting, or the subject matter of unspecified policy initiatives that may be considered in future meetings (paras. 115 and 119). Moreover, rather than being revealing of the views, opinions, thoughts, ideas, and concerns of ministers, the IPC held that the Letters represent "the end point of the Premier's formulation of the policies and goals to be achieved by each Ministry" — or, "the product of his deliberations" — and fell outside the ambit of s. 12(1) (paras. 132 and 134; see also para. 79).

III. Analysis

[ 14 ] Section 12(1) protects the confidentiality of records that "would reveal the substance of [Cabinet] deliberations". Similar exemptions are found in FOI legislation across the country.[^1] The opening words of s. 12(1) provide that "[a] head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations" of Cabinet or its committees. The paragraphs of the provision protect listed records, which need not meet the standard set out in s. 12(1)'s opening words to qualify for protection. Section 12(1) is reproduced in full in the attached Appendix. Only the opening words of the provision are at issue.

[ 15 ] Here, the sole issue is whether the public should have access to the Premier's mandate letters. This turns on the IPC's interpretation of the opening words of s. 12(1) and its application on these facts. The parties submit that this Court should review the IPC's decision for reasonableness. We are not bound by that agreement as a "reviewing judge's selection and application of the standard of review is reviewable for correctness" (Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47).

[ 16 ] We note, however, that the case was argued and decided by the courts below based on reasonableness review. Dissenting at the Court of Appeal, Lauwers J.A. raised, without deciding, serious questions as to whether the standard of review ought to be correctness in this case given the constitutional conventions and associated traditions and practices engaged by s. 12(1) (paras. 106-8). In this case, the same conclusion follows regardless of whether the standard of review is correctness or reasonableness. The narrow zone of protection for Cabinet deliberations created by the IPC's interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness. In light of this conclusion and considering that the parties had not raised the issue of the applicable standard of review before this Court, it is not necessary to finally resolve the issue here. We therefore make no comment about the "thorny question" raised by Lauwers J.A. (at para. 108) and proceed on the basis of reasonableness review.

[ 17 ] Reasonableness review focuses both on the decision maker's reasoning process and the outcome (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-84). A reasonable decision is "justified in relation to the constellation of law and facts that are relevant to the decision"; the legal and factual contexts thus "operate as constraints on the decision maker in the exercise of its delegated powers" (para. 105). Relevant contextual constraints may include "the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker . . .; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual" (para. 106).

[ 18 ] In conducting reasonableness review, reviewing judges must "be attentive to the application by decision makers of specialized knowledge" and "institutional expertise and experience" (para. 93; see also paras. 232-34). Judges must not reweigh and reassess the evidence considered by the decision maker, absent a fundamental misapprehension or failure to account for some aspect of the evidence (paras. 125-26). Reasonableness review thus entails deference to the decision maker, and, throughout, I examine the reasons offered by the IPC in light of the parties' arguments and the context of the proceedings.

[ 19 ] The appellant Attorney General of Ontario submits the IPC's decision was unreasonable on several bases, including: (1) the IPC's interpretation of s. 12(1) is inconsistent with the purpose of the exemption, because it fails to protect records that would reveal the deliberative process of Cabinet; (2) the IPC's characterization of the Letters as "outcomes" of the deliberative process was unreasonable; and (3) the IPC's application of s. 12(1)'s opening words unreasonably required a link to a specific Cabinet meeting.

[ 20 ] The respondent CBC seeks to uphold the IPC's decision, noting that the IPC was alive to the purpose of the exemption and reasonably concluded that disclosure of the Letters would not impair that purpose. The respondent IPC submits that the IPC applied a reasonable interpretation of s. 12(1) that is consistent with the text, context, and purpose of the provision, including the constitutional conventions surrounding Cabinet confidentiality.

[ 21 ] As I will explain, I agree with the Attorney General of Ontario that the Commissioner did not adequately grapple with the broader legal and factual context in interpreting s. 12(1). As a result, his narrow interpretation of the provision and his application of it to the Letters were unreasonable.

[ 22 ] I proceed by assessing the reasonableness of the IPC's interpretation of s. 12(1) against the legislation and the legal backdrop of Cabinet confidentiality. I then assess the Commissioner's characterization and application of s. 12(1) to the mandate letters.

A. The IPC's Interpretation of Section 12(1)

[ 23 ] A reasonable decision is justified in relation to the salient aspects of the statute's text, context, and purpose, in line with the modern principle of statutory interpretation (Vavilov, at paras. 118-20). Both the IPC's interpretation of s. 12(1) and his application of it to the Letters must be shown to be reasonable for this Court to uphold the decision.

[ 24 ] In my view, the IPC's decision demonstrates careful regard for the text of s. 12(1) — for example, noting the meaning of the words "substance", "deliberations", "including", and "would" in the context of the provision (paras. 84-93). However, despite the explicit acknowledgment of some statutory context and purpose, the IPC's analysis of the purpose of the Cabinet records exemption was too narrow in two important ways.

[ 25 ] The parties submit that the purposes informing the legislation were key considerations to the IPC's interpretation of s. 12(1). FIPPA was enacted in 1987 based on recommendations made by the Ontario Commission on Freedom of Information and Individual Privacy, informally known as the Williams Commission. Its mandate was to recommend reforms to Ontario's access to information and privacy protection rules. As the Divisional Court noted, the Williams Commission "addressed the balance between access to information and Cabinet confidentiality at some length" (at para. 96). The Commission recommended a Cabinet records exemption that would protect Cabinet records from access, but exempt information that did not reveal the substance of deliberations.

[ 26 ] The legislative context shows FIPPA's Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality. The Ontario Legislature's debates show legislators understood that the Cabinet records exemption plays a role in protecting the confidentiality of Cabinet deliberations in the interest of good governance, in addition to respecting individual ministers' right to speak freely without those communications being disclosed.

[ 27 ] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts but are nonetheless considered binding (Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at pp. 880-83; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57). The constitutional dimension of Cabinet secrecy is crucial context in interpreting legislation, like s. 12(1), that was designed to preserve the secrecy of Cabinet's deliberative process.

[ 28 ] In our constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility. Responsible government is a fundamental principle of Canada's system of government and the most important non-federal characteristic of the Canadian Constitution (Reference re Resolution to amend the Constitution, at pp. 878-79). Responsible government requires Cabinet ministers to act collectively and to be collectively responsible to the legislature, and through the legislature, to the public (Chagnon, at para. 21; Babcock, at paras. 14-15). The Prime Minister (or Premier) and Cabinet are responsible as a group for all decisions made by Cabinet, even if some ministers disagreed with a decision in private. This principle of collective responsibility requires ministers to stand together in public, regardless of what was said in private, and to be held responsible as a whole.

[ 29 ] Cabinet secrecy derives from the collective dimension of ministerial responsibility (Y. Campagnolo, "The Political Legitimacy of Cabinet Secrecy" (2017), 51 R.J.T.U.M. 51, at p. 59). Collective responsibility requires confidentiality of Cabinet communications so that ministers can speak freely in Cabinet discussions without fear of reprisal (N. d'Ombrain, "Cabinet secrecy" (2004), 47 Can. Pub. Admin. 332, at pp. 332-34; see also Babcock, at para. 18). The ability of ministers to speak freely and frankly in Cabinet is often referred to as "ministerial candour". Equally, Cabinet ministers must publicly support the government's collective position — and not their individual position in Cabinet discussions — so that the public can hold them accountable. The ability of ministers to publicly stand together regardless of private disagreements is often referred to as "ministerial solidarity". Cabinet secrecy is necessary to promote both ministerial candour and ministerial solidarity.

[ 30 ] Scholars also refer to a third rationale for the convention of Cabinet confidentiality: it promotes the efficiency of the collective decision-making process (see Campagnolo (2017), at p. 68). The efficient operation of the collective decision-making process requires that Cabinet be free to deliberate, discuss, and make decisions without external interference and without those deliberations being made public before they are finalized. Cabinet confidentiality allows the Cabinet to reach consensus by keeping the deliberative process free from public scrutiny.

[ 31 ] Cabinet confidentiality is therefore "not just a convenient political dodge; it is essential to effective government" (see G. White, Cabinets and First Ministers (2005), at p. 139; see also p. 138). Our jurisprudence focuses broadly on the purposes of good governance and effective government in discussing the importance of Cabinet secrecy, as does the FIPPA scheme. Babcock describes Cabinet secrecy as grounded in "effective government" (para. 15). In Carey v. Ontario, this Court held that the disclosure of Cabinet discussions "would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could act if the advice its members got was blandished about" ([1986] 2 S.C.R. 637, at pp. 658-59).

[ 32 ] The IPC demonstrated appreciation for the import of the candour and solidarity rationales supporting Cabinet confidentiality, citing this Court's decision in Babcock (see para. 87). These rationales are important to the democratic process. However, the Commissioner's "engagement with the convention of Cabinet confidentiality essentially stopped there" (to borrow the phrase of the Divisional Court at para. 101). The Commissioner did not sufficiently engage with the "efficiency" rationale underpinning Cabinet confidentiality.

[ 33 ] Ministerial candour and solidarity are components of effective governance, to be sure, but they are only part of the foundation on which Cabinet confidentiality and effective governance rests — the third rationale, efficiency of the collective decision-making process, is also fundamental. This matters for two reasons.

[ 34 ] First, had the IPC recognized that the fundamental focus of deliberative secrecy is effective government, the Commissioner could not have framed the purpose to focus only on "free and frank discussion among Cabinet members of issues coming before them for decision" (para. 86). The IPC focused on the effect of disclosure on individual ministers' ability to speak freely (the candour and solidarity rationales), and on specific deliberations at specific Cabinet meetings. The broader purpose — efficiency of the collective decision-making process — would require examining whether the Letters are revealing of Cabinet's deliberative process more broadly.

[ 35 ] Second, had the IPC framed the purpose of s. 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s. 12(1). Cabinet Office argued that, along with candour and solidarity, s. 12(1) protects Cabinet's prerogative to determine when and how to announce its decisions. In Carey v. Ontario, this Court found that disclosing Cabinet deliberations:

[The premature disclosure of Cabinet secrets] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could act if the advice its members got was blandished about.

(Carey, at pp. 658-59)

[ 36 ] The prerogative to determine when and how to announce Cabinet decisions is grounded in the harmful impact that premature disclosure of policy priorities can have on the deliberative process. As I noted, the efficiency of the deliberative process is a core purpose of Cabinet confidentiality. Premature disclosure can paralyze the collective decision-making process by creating public pressure or partisan criticism before a final decision is made, and so undermine the efficiency of government. This prerogative is part of Cabinet confidentiality.

[ 37 ] Because the IPC largely did not engage with this important argument, he did not acknowledge Cabinet Office's submission that determining "when and how" to communicate policy priorities to the public is part of Cabinet's prerogative. Although the Commissioner found that the Speech from the Throne — delivered the day after the Letters were issued to ministers — did contain some of the policy priorities from the Letters, he did not consider what disclosure of the Letters would mean for the government's ability to determine the manner and timing of its disclosures.

[ 38 ] That is what happened in this case. The day after the Letters were distributed to Cabinet ministers, the Lieutenant Governor delivered the new government's Speech from the Throne in the Ontario Legislature, which disclosed many of the same policy priorities communicated in the Letters. Both documents were written by the Premier's office and were part of the same coordinated roll-out of the government's policy priorities. But the decision of when and how to disclose the policy priorities remains part of Cabinet's deliberative process.

[ 39 ] The failure to engage meaningfully with Cabinet Office's arguments about the fundamental underpinnings of Cabinet confidentiality had implications for the IPC's interpretation of the scope of s. 12(1). The Commissioner's approach to the purpose of s. 12(1) led him to an unduly narrow interpretation of the "substance of deliberations". Specifically, the IPC held that s. 12(1)'s opening words do not protect "final outcomes" of the deliberative process, but only "deliberative communications occurring within" Cabinet's policy-making process (para. 92). An overly narrow understanding of the scope of Cabinet confidentiality and what it is designed to protect shaped the Commissioner's too-narrow interpretation of the "substance of deliberations" protected by s. 12(1).

[ 40 ] As Vavilov makes clear, failing to meaningfully grapple with central arguments raised by the parties is a marker of unreasonableness (para. 128); and overlooking a salient part of statutory context constitutes a reviewable error (para. 106). Here, the IPC failed to meaningfully grapple with — or even address — the efficiency rationale for Cabinet confidentiality. The Commissioner also did not address Cabinet's prerogative to determine when and how to disclose its decisions, nor its implications for interpreting the scope of Cabinet privilege under s. 12(1) of FIPPA.

B. The IPC's Application of Section 12(1) to the Letters

[ 41 ] In considering how the exemption applied to the Letters, the IPC's reasons also did not sufficiently engage with important conventions and traditions surrounding the Cabinet decision-making process — in particular, the role of the Premier in Cabinet's deliberative process and the dynamic nature of that process.

[ 42 ] Before the IPC, Cabinet Office relied on IPC precedent recognizing that constitutional conventions surrounding the Premier make his role of establishing the priorities and agenda for Cabinet inseparable from the Cabinet's decision-making process (para. 42 of the IPC decision, quoting Order PO-2208). However, the IPC did not give these constitutional conventions meaningful weight in his analysis.

[ 43 ] The IPC held that the Letters were not revealing of the Premier's deliberations nor of future Cabinet deliberations. The Commissioner concluded that the Letters did not disclose the substance of Cabinet deliberations because they were not "shared before Cabinet or its committees" and were not intended to form the basis for discussions by Cabinet as a whole. Rather than being revealing of the Premier's deliberations, the IPC held that the Letters represented "the end point of the Premier's formulation of the policies and goals to be achieved by each Ministry" — the product of his deliberations rather than a record of his deliberations (paras. 79 and 131-34).

[ 44 ] I agree with the CBC that, on a generous reading of the reasons, the IPC did not understand the deliberative process to be limited to discussions at a specific meeting of Cabinet. Still, the IPC did not give adequate attention to the dynamic and fluid nature of Cabinet's deliberative process or to the role of the Premier within that process.

[ 45 ] In my view, this reasoning and the conclusions the Commissioner drew about the Letters are not justifiable, given two key contextual constraints: the nature of the Cabinet decision-making process and the role of the Premier within that process.

[ 46 ] To begin, Cabinet's deliberative process consists of discussion, consultation, and policy formulation between the Premier, individual ministers, and Cabinet as a whole — informed by the advice of public servants. Cabinet's decision-making process is dynamic and fluid. It does not follow a neat sequence; it is a continuous process of deliberation, consultation, and policy development that may not conclude with a specific vote or decision (John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, at para. 58).

[ 47 ] As this Court recognized in John Doe, "the policy-making process include[s] false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of proposals" (para. 58). Policy-making in Cabinet "continues until government decides to take action in the form of legislation, regulation, or some other output" (para. 58). Policies are not developed in the abstract or by a single actor, but through an iterative process that involves the entire Cabinet.

[ 48 ] Agenda-setting, which occurs at an early stage, is "a crucial part" of the decision-making process (S. Brooks, Canadian Democracy (9th ed. 2020), at p. 241). The role of the first minister and Cabinet has evolved from the more collegial model of past decades to a more hierarchical and centralized model in which the first minister has outsized influence over government (see generally H. Bakvis, "Prime Minister and Cabinet in Canada: An Autocracy in Need of Reform?" (2000), 35:4 J. Can. Stud. 60, at pp. 60-64). This trend toward prime ministerial government is well documented. Although the degree of centralization has varied with different governments and different first ministers, the critical role of agenda-setting and the central involvement of the first minister in this exercise have remained constant.

[ 49 ] The dynamic and fluid nature of Cabinet's deliberative process also means that not all stages of the process take place sitting around the Cabinet table behind a closed door. The decision-making process in Cabinet extends beyond formal meetings of Cabinet or its committees. Different forms of Cabinet consultation include bilateral discussions between the first minister and individual ministers, discussion in Cabinet committees, briefings provided by public servants, and communications between ministers and their staff. Constitutional conventions also acknowledge the first minister's role in initiating the Cabinet's deliberative process and in determining the pace and contours of that process. The first minister presides over Cabinet, sets Cabinet agendas, determines Cabinet's membership and internal structure, sets Cabinet procedures, and has the right to identify the consensus and determine what Cabinet has decided (White, at p. 38; M. Schacter and P. Haid, Cabinet Decision-Making in Canada: Lessons and Practices (1999), at pp. 5-6; A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 67).

[ 50 ] The IPC ostensibly recognized the role of the Premier in Cabinet's decision-making process, citing past IPC precedent which recognized that "by virtue of the Premier's unique role in setting the agenda and priorities of Cabinet, the Premier's deliberations are inseparable from those of the Cabinet itself" (Order PO-3973, at para. 42, quoting Order PO-2208). The IPC acknowledged that the Premier is an integral part of Cabinet and its deliberations. However, the IPC did not give this convention adequate weight in his reasons.

[ 51 ] For one, in characterizing the Letters as non-exempt outcomes of the Premier's deliberative process, the IPC drew an artificial dichotomy between the Premier's deliberative process, and the rest of Cabinet's deliberative process. Given that the Premier's deliberations are constitutionally inseparable from those of Cabinet, a record that would shed light on the Premier's policy formulation necessarily reveals the substance of Cabinet deliberations.

[ 52 ] The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet's deliberative process, and are subject to change. Ministers may seek to persuade the Premier that their Minister's priorities should be different, or even that the government's overall priorities should be different. Cabinet may adopt different policies than those initially communicated in the Letters. The Letters, as an early stage of Cabinet's deliberative process, reveal information about the substance of Cabinet's deliberations.

[ 53 ] The Letters on their face contain communications between the Premier and Cabinet ministers about policy priorities, many if not most of which would require decisions from Cabinet, both as to their content and their timing. Each Letter sets out the Premier's views on the policy priorities for the government's term in office, for each minister and their ministry. These are not mere topics — the Letters reflect the Premier's views on the importance of certain priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. It would be difficult to describe a communication between the Premier and Cabinet ministers about what the Premier believes should be the priority of each Cabinet minister and their ministry as merely a "topic" or subject matter of deliberations.

[ 54 ] Relatedly, to the extent the IPC required evidence linking the Letters to "actual Cabinet deliberations at a specific Cabinet meeting", that approach was unreasonable. Such a requirement is far too narrow given the dynamic and fluid nature of the Cabinet decision-making process.

[ 55 ] I agree with the CBC that the IPC did not adopt this test throughout his reasons. Still, his focus on actual deliberations at a specific Cabinet meeting underscored his finding that the fact that some of the Letters' priorities were before Cabinet in the future did not, on its own, make the Letters exempt (paras. 119-20). This reasoning — which looks only at whether a communication relates to a Cabinet decision at a specific meeting — fails to account for the broader deliberative process of Cabinet, where the first minister's communications with ministers are an integral part of the Cabinet deliberative process as a whole.

[ 56 ] Finally, the IPC concluded that the Letters were not exempt because even the priorities that would return to Cabinet in the future constituted mere "topics" or subject matters of potential future deliberations (paras. 115 and 119). As noted, the IPC held that a "topic" is only exempt where "the context or other additional information would permit the reader to draw accurate inferences as to Cabinet deliberations" (para. 100).

[ 57 ] As noted, the Letters are communications between the Premier and his Cabinet colleagues relating to policy priorities that are or will be before Cabinet; they cannot be written off as mere "topics" or "subject matters". They reveal the Premier's views on the importance of certain policy priorities and mark the initiation of the Cabinet deliberative process. When compared against subsequent government action, the content of the Letters would be revealing of Cabinet's deliberations on those priorities.

C. Conclusion

[ 58 ] In sum, the IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process. As a result, the IPC's narrow interpretation of the "substance of deliberations" was unreasonable, as was his application of the provision to the mandate letters.

[ 59 ] I would add this. There can be no doubt that, as the CBC submits, public access to government-held information is vital to our democratic process (see R.F., at para. 49, citing John Doe, at para. 51). And access to information about the priorities guiding government decision-making is particularly important. But the constitutional dimension of Cabinet confidentiality ensures Cabinet is also protected from undue interference in the deliberative process. These two essential goals must be carefully balanced through a substantive, contextual analysis of the requested records.

[ 60 ] Given the key role Cabinet confidentiality plays in the proper functioning of our Westminster system of government, cases about its proper scope raise important issues for the stability and legitimacy of our constitutional democracy. This Court noted in Babcock that Cabinet secrecy is "essential to good government" (para. 15). There is certainly significant public interest in understanding how government decisions are made. But it is equally important that Cabinet be given the latitude to deliberate freely, without premature interference.

[ 61 ] In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive not only to the vital importance of public access to government-held information but also to Cabinet secrecy's core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity. They must also be attentive to the dynamic nature of executive decision-making, the function of Cabinet itself and its individual members, the role of the Premier, and Cabinet's prerogative to determine when and how to announce its decisions.

[ 62 ] Such an approach reflects the opening words of s. 12(1), which mandate a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations. Statutory text, purpose, and context lead inexorably to the conclusion that the mandate letters are protected from disclosure under s. 12(1)'s opening words.

[ 63 ] As to remedy in this case, where "the interplay of text, context and purpose leaves room for a single reasonable interpretation", it "would serve no useful purpose" to remit the question to the decision maker (Vavilov, at para. 142). The Letters are protected by the Cabinet records exemption in s. 12(1) of FIPPA. Remitting the matter to the IPC would be futile.

[ 64 ] I would allow the appeal and set aside the order of the IPC, with costs to the appellant payable by the CBC. The private record of proceedings filed with this Court will remain in the Court file and will not be made public.

Concurring Reasons

The following are the reasons delivered by

Côté J. —

I. Introduction

[ 65 ] I agree with my colleague's interpretation of s. 12(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("Act"), and with her conclusion that the mandate letters at issue are exempt from disclosure under that provision. I write separately because, respectfully, I cannot agree that it is unnecessary to resolve the question of the applicable standard of review.

II. Standard of Review

[ 66 ] A reviewing judge's selection and application of the standard of review are reviewable for correctness (Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 10). As my colleague noted, the parties agree that the applicable standard of review is reasonableness. We are not bound by this agreement. The question of the applicable standard of review is a question of law that courts must resolve for themselves.

[ 67 ] Following the teachings of Vavilov, "a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate answer" (2019 SCC 65, [2019] 4 S.C.R. 653, at para. 17). Correctness review is required "where the question raises issues of constitutional interpretation, polycentric questions affecting multiple jurisdictions, or is of fundamental importance to the legal system as a whole" (Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at para. 38; Vavilov, at para. 17; Horrocks, at para. 33).

[ 68 ] In Vavilov, our Court recognized that "correctness review is necessary to resolve general questions of law that are of 'fundamental importance and broad applicability', with significant legal consequences for the justice system as a whole" (Vavilov, at para. 59, quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60). As examples, our Court cited "the applicability and scope of solicitor-client privilege" (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247) and "questions of parliamentary privilege" (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 24) (Vavilov, at para. 59).

[ 69 ] There is no principled reason why Cabinet privilege should be treated any differently — or is any less important to the legal system as a whole — than solicitor‑client privilege or parliamentary privilege. First, the scope of Cabinet privilege is not particular to any specific regulatory regime but is a fundamental feature of the Canadian Constitution itself. Second, the scope of Cabinet privilege has significant legal consequences for the justice system as a whole: it determines whether the courts can override Cabinet's claim of privilege and thereby be effective "check[s] on executive authority" (Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 37). Third, the IPC's interpretation of s. 12(1) is likely to have a ripple effect throughout Canadian jurisdictions, since all Canadian jurisdictions have enacted access to information legislation with similar Cabinet records exemptions (see O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat), 2001 NSCA 132, 197 N.S.R. (2d) 154; Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) (1998), 111 B.C.A.C. 95). Fourth, as I explain below, requiring uniformity in the interpretation of the scope of Cabinet privilege justifies correctness review (Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20; Vavilov, at para. 61).

[ 70 ] The scope of Cabinet privilege is not a question particular to Ontario's specific regulatory regime (see Vavilov, at para. 61; Canadian National Railway Co., at para. 37). Cabinet privilege is a constitutional convention in all Canadian jurisdictions. Applying correctness review to the scope of Cabinet privilege would ensure that this protection is applied consistently, regardless of which province is before which administrative decision maker or court. Because the scope of Cabinet privilege is a constitutional convention protecting effective government in Canada's Westminster system, inconsistencies in its interpretation would risk undermining responsible government across the country.

[ 71 ] For these reasons, I would find that the scope of Cabinet privilege is a question of central importance to the legal system as a whole that requires a final and determinate answer. In both Chagnon and MacKeigan, this Court applied correctness review to the scope of constitutional conventions related to legislative and judicial privilege, respectively. The same should hold true for Cabinet privilege.

III. A "Reasons First" Approach

[ 72 ] As I stated at the beginning of these reasons, I do not agree that the same conclusion follows regardless of whether the standard of review is correctness or reasonableness. It must never be forgotten that "the role of reasonableness review is not to find better reasons that the reviewing court would have provided" (Vavilov, at para. 96; see also Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 97).

[ 73 ] What distinguishes reasonableness review from correctness review "is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached" (Vavilov, at para. 83). While a court conducting correctness review is free to interpret the law anew and impose its view of the "right answer", a court conducting reasonableness review must start with — and remain focused on — the decision under review. "Certain decisions may call for the reviewing court to explain its understanding of the relevant law before turning to consider the reasonableness of the decision" (para. 120). But such a preliminary interpretation serves only as a lens through which to evaluate the decision maker's reasons — not as an independent basis for overturning the decision.

[ 74 ] With respect, my colleague fails to apply this methodology in practice. She conducts her own interpretation of s. 12(1), and of the importance and nature of Cabinet privilege, and then measures the Commissioner's decision against her interpretation. This effectively transforms the reasonableness review into a correctness review. Reasonableness review "is not about whether the court agrees with the [decision maker's] conclusions" but about "whether those conclusions are properly justified" (Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, at para. 63).

IV. Analysis

[ 75 ] I agree with my colleague's interpretation of the scope of Cabinet privilege, which is the correct interpretation, and with her conclusion that the mandate letters are exempt from disclosure under s. 12(1). However, I would reach this conclusion by applying correctness review, not reasonableness review.

[ 76 ] My colleague conducts her own interpretation of the scope of Cabinet privilege under s. 12(1) (see paras. 1‑4, 24‑33, 36, 46‑49 and 59‑62) and uses her conclusions as a yardstick against which she measures the Commissioner's decision. Respectfully, in doing so, she has applied what amounts to correctness review. The methodology my colleague employs does not accord with reasonableness review as articulated in Vavilov.

[ 77 ] After her comprehensive discussion of the purpose of Cabinet privilege, my colleague finds that it was "critical that the [Commissioner] fully consider the function of Cabinet within our system of governance, including the efficiency rationale for Cabinet confidentiality" (para. 34). But in evaluating the Commissioner's decision from that standard, she fails to begin from the Commissioner's reasons. The Commissioner's reasoning is as follows:

Cabinet Office and the appellant each make submissions on the interpretation of the opening words of section 12(1). Both accept that these words should be interpreted in light of their underlying purposes, which they identify as: (1) ensuring free and frank deliberation in cabinet meetings; (2) preserving the tradition of cabinet solidarity and collective ministerial responsibility; and (3) protecting cabinet's capacity to develop policy free from premature public disclosure. Cabinet Office submits that the Commissioner should interpret section 12(1) consistently with these purposes.

(Order PO‑3973, at para. 86, quoting Babcock, at para. 18)

[ 78 ] At para. 87, the Commissioner justified his reading of Babcock as follows:

I note that Babcock involved an appeal from the dismissal of an application brought in the course of a civil law suit to compel the production of records that had been certified by the Clerk of the Privy Council as Cabinet confidences. The Supreme Court of Canada's consideration of the purpose of Cabinet confidentiality in that context is instructive but not determinative.

[ 79 ] My colleague says that the Commissioner's "engagement with the convention of Cabinet confidentiality essentially stopped there" (para. 32). Respectfully, I cannot agree. After his consideration of Babcock, the Commissioner went on to note that, in the IPC's view, s. 12(1) is "designed to protect deliberative communications occurring within Cabinet's policy-making process, not the outcomes of that process (i.e. the decisions themselves) or the subjects or topics of deliberation".

[ 80 ] In her conclusion, my colleague finds that the interplay of statutory text, context and purpose leads "inexorably" to a single reasonable interpretation of s. 12(1) (para. 63). It may sometimes be the case that there is a single reasonable interpretation of a statutory provision. But, in my view, this is not one of those cases.

[ 81 ] However, in this case, there are a number of relevant factors weighing in favour of the Commissioner's interpretation, many of which my colleague does not consider in her review of his reasoning. The Commissioner's decision was transparent, intelligible and justified in relation to a number of elements of FIPPA's text, context, and purpose.

[ 82 ] As Sossin J.A. noted for the majority of the Court of Appeal, the Ontario Information and Privacy Commissioners' consistency in their long‑standing approach to their governing statute may be taken as a factor that provides some support for the reasonableness of their decisions (2022 ONCA 74, at para. 43; Vavilov, at para. 132). While this factor does not definitively establish the reasonableness of any decision, it does weigh in favour of the reasonableness of the Commissioner's decision.

[ 83 ] While I agree with my colleague's interpretation of s. 12(1), it is exactly that — her interpretation. Correctness review, in addition to being required by Vavilov, serves to eliminate my concern that, applying reasonableness review in this case, we are substituting our view for the Commissioner's, contrary to what is required under reasonableness review. The scope of Cabinet privilege is of central importance to the legal system as a whole, and mandates correctness review. Applying that standard, I agree that the mandate letters are protected under s. 12(1) of FIPPA and that the appeal should be allowed.

Appendix

*Freedom of Information and Protection of Privacy Act*, R.S.O. 1990, c. F.31

Cabinet records

12 (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees;

(b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees;

(c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, if the Executive Council or its committees have not yet made a decision;

(d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers of the Crown; and

(f) draft legislation or regulations.

Appeal allowed.

Solicitor for the appellant: Ministry of the Attorney General, Crown Law Office — Civil, Toronto.

Solicitor for the respondent the Information and Privacy Commissioner of Ontario: Information and Privacy Commissioner of Ontario, Toronto.

[^1]: The following access to information legislation contains similar Cabinet records exemptions: Access to Information Act, R.S.C. 1985, c. A‑1, s. 69; Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A‑1.2, s. 27; Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20, ss. 13 to 14; Access to Information and Protection of Privacy Act, C.S.Nu., c. A‑20, s. 13; Access to Information and Protection of Privacy Act, S.Y. 2018, c. 9, s. 67; Act respecting Access to documents held by public bodies and the Protection of personal information, CQLR, c. A-2.1, ss. 30 to 38; Freedom of Information and Protection of Privacy Act, C.C.S.M., c. F175, s. 19; Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 22; Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 12; Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 13; Freedom of Information and Protection of Privacy Act, S.P.E.I. 2001, c. 37, s. 20; Freedom of Information and Protection of Privacy Act, S.S. 1990‑91, c. F‑22.01, s. 16.