Ministry of Community and Social Services v. Doe et al.

[Indexed as: Ontario (Ministry of Community and Social Services) v. Doe]

Ontario Reports

Ontario Superior Court of Justice,
Divisional Court,

Sachs, Wilton-Siegel and Nolan JJ.

February 24, 2014

120 O.R. (3d) 451 | 2014 ONSC 239

Case Summary

Administrative law — Freedom of information — Exemptions from disclosure — Grievance Settlement Board ordering Family Responsibility Office ("FRO") to adopt policy that employees were only required to provide their first name and original identification number to public — Information and Privacy Commission ("IPC") subsequently ordering ministry to disclose full names of FRO employees contained in requester's file — IPC reasonably concluding that FRO employees' full names were not excluded from disclosure pursuant to ss. 65(6)3, 14(1) (e) or 20 of Freedom of Information and Protection of Privacy Act — Compliance with IPC order not requiring contravention of Grievance Settlement Board order — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3, ss. 14(1)(e), 20, 65(6)3.

In 2000, a Grievance Settlement Board ("GSB") order was made on consent which provided that the Family Responsibility Office ("FRO") would adopt a policy that FRO employees were only required to provide their first name and a unique identification number to the public. That order was made after a mediation of individual grievances by employees who were concerned about their safety because of their employment at the FRO. The Information and Privacy Commission ("IPC") subsequently ordered the ministry to disclose the full names of FRO employees contained in the requester's file. The ministry brought an application for judicial review of that decision. [page452]

Held, the application should be dismissed.

The IPC reasonably concluded that the exemption from disclosure in s. 65(6)3 of the Freedom of Information and Protection of Privacy Act did not apply. To qualify for that exemption, the record must be "about" labour relations or employment-related matters. A record connected with the core mandate of a government institution cannot be excluded from the scope of the Act because it could potentially be connected to an employment-related concern, is touched upon in a collective agreement or could become the subject matter of a grievance. The records sought by the requester were not about labour relations or employment-related matters. The IPC also reasonably concluded that the exceptions in s. 14(1)(e) and s. 20 of the Act did not apply as there was no evidence that the requester posed any threat to the health or safety of the FRO officers in question. Complying with the IPC order would not put the ministry in breach of the GSB order. The minister cannot consent to an arrangement that has the effect of contracting out of his or her obligations under the Act. It was a necessary inference that the parties did not intend that the GSB order override the provisions of the Act. There was no operational conflict between the IPC order and the GSB order.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2003] O.J. No. 4123, 178 O.A.C. 171, 2003 16894, 126 A.C.W.S. (3d) 185; Ontario (Ministry of Correctional Services) v. Goodis (2008), 2008 2603 (ON SCDC), 89 O.R. (3d) 457, [2008] O.J. No. 289, 290 D.L.R. (4th) 102, 233 O.A.C. 245, 77 Admin. L.R. (4th) 133, 168 A.C.W.S. (3d) 643 (Div. Ct.), consd

Duncanson v. Toronto (Metropolitan) Police Services Board, 1999 18726 (ON SCDC), [1999] O.J. No. 2464, 175 D.L.R. (4th) 340, 124 O.A.C. 170, 87 C.P.R. (3d) 94 (Div. Ct.), distd

Other cases referred to

Appeal PA-980251-1, November 24, 2003 (unreported); British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., 1995 101 (SCC), [1995] 2 S.C.R. 739, [1995] S.C.J. No. 54, 125 D.L.R. (4th) 443, 183 N.R. 184, J.E. 95-1352, 31 Admin. L.R. (2d) 169, 55 A.C.W.S. (3d) 937; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Happy Adventure Sea Products (1991) Ltd. v. Newfoundland and Labrador (Minister of Fisheries and Aquaculture), [2006] N.J. No. 300, 2006 NLCA 61, 277 D.L.R. (4th) 117, 260 Nfld. & P.E.I.R. 344, 22 B.L.R. (4th) 1, 154 A.C.W.S. (3d) 1064; Maple Lodge Farms Ltd. v. Canada, 1982 24 (SCC), [1982] 2 S.C.R. 2, [1982] S.C.J. No. 57, 137 D.L.R. (3d) 558, 44 N.R. 354, J.E. 82-725, 15 A.C.W.S. (2d) 215, affg 1980 4163 (FCA); Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), 2005 34228 (ON CA), [2005] O.J. No. 4047, 202 O.A.C. 379, 34 Admin. L.R. (4th) 12, 50 C.L.R. (3d) 189, 43 C.P.R. (4th) 1, 142 A.C.W.S. (3d) 711 (C.A.).

APPLICATION for judicial review of an order of the Information and Privacy Commission.

Lise Favreau and Tom Schreiter, for applicant.

William Challis and David Goodis, for respondent Information and Privacy Commissioner.

David R. Wright and Jane Letton, for respondent Ontario Public Service Employees Union.

The judgment of the court was delivered by

SACHS J.: —

Introduction

[1] This is an application to judicially review the October 7, 2010 order [[2010] O.I.P.C. No. 125] (the "IPC order") of the Information and Privacy Commission of Ontario ("IPC") that required the Ministry of Community and Social Services (the "Ministry") to disclose the full names of employees of the Family Responsibility Office ("FRO") contained in the file of a John Doe. According to the Ministry, the IPC order conflicts with the order of the Grievance Settlement Board ("GSB order") that has been in effect since November 7, 2000.

[2] The GSB order was made on consent following a mediation of 82 individual grievances filed by FRO employees who were concerned about their safety because of their employment at FRO. The GSB order provides that FRO adopt a policy whereby employees are only required to provide their first name and a unique identification number to the public in telephone communications and in non-court documents. FRO has followed this policy and practice since 2000.

[3] On this application, the Ministry's position is that the IPC did not have the jurisdiction to order the disclosure of FRO employees' full names because this information is excluded from disclosure pursuant to s. 65(6)3 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (the "Act"). Section 65(6)3 provides that the "Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to . . . [m]eetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest".

[4] In the alternative, the Ministry argues that the IPC erred in finding that the discretionary exemptions in ss. 14(1) (e) and 20 of the Act do not apply. These exemptions provide that the head of an institution may refuse to disclose a record because of health and safety concerns.

[5] Finally, the Ministry asserts that if this court refuses to set aside the IPC order, this court will be left with valid decisions of two statutory tribunals that are in direct operational conflict. According to the Ministry, this requires the court to review the decisions and establish their relative precedence. Given that the GSB order is about the health and safety of FRO employees, that order should prevail over the IPC order.

[6] The Ontario Public Service Employees Union ("OPSEU"), a party affected by this decision, supports the Ministry's position. Letters were sent to the FRO employees who were affected by the IPC order. Some employees contacted counsel, but advised that they did not wish to seek separate standing in the application. John Doe, the person who requested the records at issue, did not appear at the application for judicial review.

[7] In its factum, OPSEU argued that the full names of FRO employees are "personal information" within the meaning of s. 2(1) of the Act and that disclosure of this information would constitute an unjustified invasion of personal privacy. At the hearing of the application, OPSEU indicated it was no longer pursuing this argument.

[8] For the reasons that follow, I would dismiss the application.

Factual Background

[9] The FRO employees affected by this application are all members of OPSEU. In 2000, OPSEU filed 82 grievances alleging that the grievors' rights to health and safety were violated by the Ministry's full name policy at the time.

[10] According to OPSEU, the work of FRO enforcement officers requires them to regularly interact with volatile clients. These clients have subjected staff to harassment, abuse and threats, and may pose a real danger to those enforcement officers and their families.

[11] The grievances gave rise to the GSB order, which was a consent order. In the 12 or so years since the GSB order became effective, FRO employees can choose to identify themselves, to the public by first name and identification number only in all telephone communications and in non-court documents.

[12] From 2002 to 2006, there were 24 documented threats to FRO staff by FRO clients: one in 2002; two in 2003; eight in 2004; three in 2005; and ten in 2006. Some of these threats were directed at FRO staff generally and consisted of threatening to "bring a fucking bomb down there", threatening to "drive my truck through your building", threatening "something that will make the news", and threatening to "shoot people at FRO". Other threats were directed at individual FRO staff members, one of which was a specific threat to bomb a FRO employee's apartment.

[13] According to OPSEU, there were 12 further documented threats to FRO staff between 2006 and August 2011. Some FRO clients have used the information about the identity of enforcement officers to obtain their home addresses and phone numbers and to contact them or their family members at home.

[14] In March 2007, John Doe, a support payor, made a request to the Ministry under the Act to access all his records in his FRO file. FRO is part of the Ministry. The Ministry granted access to many of the records, but refused to disclose some records, including any portions of the records that disclosed the full names of FRO employees.

[15] John Doe (the "requester") appealed the Ministry's decision to deny access to the records that were withheld to the Office of the IPC. Mediation did not resolve the appeal and it moved to the adjudication stage.

[16] The IPC held an inquiry during which the requester, the Ministry and OPSEU were given the opportunity to make representations. The IPC order directed the disclosure of a number of records that were not the subject of this application for judicial review. The Ministry seeks to review only the portion of the IPC order that mandated the disclosure of the full names of FRO employees.

Standard of Review

[17] There is no issue about the standard of review applicable to the IPC's decision concerning whether the exemptions set out at ss. 14(1)(e) and 20 of the Act apply. All the parties accept that the standard is reasonableness.

[18] The Ministry and OPSEU assert that the standard of review applicable to the question of whether the records are excluded from the application of the Act by virtue of s. 65(6)3 is one of correctness. They do so on the basis of a number of decisions, including the Ontario Court of Appeal's decision in Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 2001 8582 (ON CA), 55 O.R. (3d) 355, [2001] O.J. No. 3223 (C.A.), at paras. 28-31, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 509. Relying on Solicitor General, the Divisional Court applied the standard of correctness in Ontario (Ministry of Correctional Services) v. Goodis (2008), 2008 2603 (ON SCDC), 89 O.R. (3d) 457, [2008] O.J. No. 289 (Div. Ct.), at para. 19.

[19] In Solicitor General, the Court of Appeal found that questions involving the application of an exclusion under s. 65(6) of the Act were subject to review on a standard of correctness. It did so on the basis that such questions, unlike questions involving the application of exemptions, do not engage the specialized expertise of the IPC: see Solicitor General, at para. 30.

[20] Solicitor General was decided before Dunsmuir v. New Brunswick, 2008 SCC 9 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., 2011 SCC 61. As a result of Dunsmuir and Alberta Teachers, it is clear that when a tribunal is interpreting its home statute the correctness standard will not apply unless the question is a constitutional question, a question of law that is of central importance to the legal system as a whole and outside of the adjudicator's expertise, a question regarding the jurisdictional lines between two or more competing specialized tribunals, or a "true" question of jurisdiction.

[21] In this case, the Ministry and OPSEU submit that whether the Act applies is a true question of jurisdiction and whether the IPC can make an order in the face of the GSB order is a question regarding the jurisdictional lines between two competing specialized tribunals.

[22] I disagree. Alberta Teachers, at paras. 33-34, establishes that true questions of jurisdiction involving the interpretation of a home statute are rare; so rare that as of 2011, the Supreme Court of Canada had not seen a true question of jurisdiction since Dunsmuir. As part of its mandate, the IPC is called upon to interpret s. 65(6) on a regular basis. Furthermore, interpreting this section in this case does not involve determining the jurisdictional lines between two competing specialized tribunals.

[23] For these reasons, I find that the standard of review applicable to the issue involving s. 65(6)3 of the Act is reasonableness.

Did the IPC unreasonably conclude that FRO employees' full names are not excluded from the Act by virtue of s. 65(6)3?

[24] The key finding of the IPC on this issue was stated as follows, at p. 15 of its decision [at para. 60]:

In this case, the records at issue were prepared by FRO staff as part of the normal business of the office. They were collected, prepared, maintained or used by the ministry in relation to meetings, consultations, discussions or communications that were "about" enforcing a support order in accordance with FRO processes. These meetings, consultations, discussions or communications were not "about" labour relations or employment-related matters. The institution and the union have entered into a consent award with respect to the disclosure of FRO employees' full names, but this does not transform the records into those excluded by section 65(6)3.

[Emphasis in original]

[25] The Ministry acknowledges that the records were created to enforce a support order, but claims that given the GSB order and the FRO policy endorsed by the GSB order, the names of the employees and management's use of documents containing the names of employees are related to communications about labour relations matters in which the Ministry has a strong and compelling interest.

[26] The Ministry also submits that the legal implications of the request make it clear that disclosing FRO employee names is an employment-related or labour relations matter.

[27] In Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21, Iacobucci J. set out the current approach to statutory interpretation citing Elmer Driedger.

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[28] In my view, the Ministry's arguments require a distortion of the plain language of the exclusion in s. 65(6)3 of the Act.

[29] To qualify for the exclusion, the record must be about labour relations or employment-related matters.

[30] Adopting the Ministry's broad interpretation of "about" would mean that a routine operational record connected with the core mandate of a government institution could be excluded from the scope of the Act.

[31] In this regard, it is important to keep in mind the purposes of the Act set out at s. 1.

(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.

[32] This concern about undermining the purpose of the Act drove the Court of Appeal's reasoning in Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), 2005 34228 (ON CA).

[33] In Goodis, the government argued that all records relating to allegations of misconduct against government employees were excluded.

[34] The Divisional Court rejected this interpretation.

[35] Swinton J., writing on behalf of the court, concluded that the type of records excluded are documents related to matters in which the institution is acting as an employer.

[36] This conclusion was reinforced by the legislative history of s. 65(6) and (7).

[37] On proclamation of Bill 7, the Management Board of Cabinet responded that the change ensured confidentiality of labour relations information.

[38] The Court of Appeal's decision in Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), 2003 16894 (C.A.) illustrates the point.

[39] Accordingly, a purposive reading of the Act dictates that if the records arise in the context of a provincial institution's operational mandate rather than as employer, the exclusion does not apply.

[40] For these reasons, I find that the IPC's decision that FRO employees' full names are not excluded by s. 65(6)3 of the Act was reasonable.

Did the IPC unreasonably fail to apply the exemptions under ss. 14(1)(e) and/or 20 of the Act?

[41] Section 14(1)(e) exempts disclosure where it could reasonably be expected to endanger life or physical safety.

[42] The IPC accepted that FRO employees were law enforcement officers.

[43] However, the IPC found no evidence the requester posed any threat.

[44] The Ministry argued the GSB order itself acknowledged safety concerns.

[45] The Ministry argued disclosure would breach the GSB order.

[46] It also argued the requester’s interests could be met by disclosure of first name and ID number.

[47] The requester made the request under s. 47(1) of the Act.

[48] Requests under s. 47 are driven by protection of the privacy of individuals with respect to personal information about themselves.

[49] Accordingly, a requester under s. 47 starts with a presumption of entitlement.

[50] First, the requester's need for information is irrelevant unless explicitly specified.

[51] Second, disclosure under s. 47 is not disclosure to the world.

[52] Therefore arguments about lack of need or fear of broader disclosure are inconsistent with the scheme of the Act.

[53] The GSB order constitutes some evidence of past safety concerns.

[54] However, there was no evidence this requester posed any threat.

[55] The Ministry relied on Duncanson v. Toronto (Metropolitan) Police Services Board, 1999 18726 (ON SCDC).

[56] The argument that the GSB order alone met the exemption threshold is problematic.

[57] The GSB order resolved grievances alleging violations of health and safety provisions.

[58] Under the policy employees may choose how they identify themselves to the public.

[59] The policy does not mention requests under the Act.

[60] Taken in context, the sentence relied on by the Ministry applies to staff responding to public inquiries.

[61] Therefore complying with the IPC order would not breach the GSB order.

[62] This conclusion is reinforced by additional considerations.

[63] There is no suggestion that the Act was considered when the GSB order was made.

[64] Further, deciding whether to apply an exemption requires an individual exercise of discretion.

[65] It follows the parties did not intend the GSB order to override the Act.

[66] For these reasons, the IPC's decision regarding ss. 14(1)(e) and 20 was reasonable.

Operational Conflict

[67] In British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., 1995 101 (SCC), the Supreme Court held courts determine precedence where operational conflict exists between tribunal decisions.

[68] An operational conflict occurs where compliance with one tribunal requires violating the other.

[69] Here, compliance with the IPC order does not require violating the GSB order.

Conclusion

[70] For these reasons, the application for judicial review is dismissed. Since no one sought costs, none are ordered.

Application dismissed.

End of Document