William Stephen Challis

The Information and Privacy Commissioner appealed a Divisional Court decision which held that confidential mediation and settlement records involving the Liquor Control Board of Ontario were exempt from disclosure under the Freedom of Information and Protection of Privacy Act (FIPPA).

The Court of Appeal dismissed the appeal, finding that the term 'litigation' in the second branch of s. 19 of FIPPA includes both mandatory and consensual mediation.

The court held that the exemption is not limited to documents falling within common law litigation privilege, and therefore the disputed records were protected from disclosure.

At the opening of a judicial review hearing, the applicant moved for leave to adduce fresh evidence and subsequently sought an adjournment to bring the new evidence before the Information and Privacy Commissioner for reconsideration.

The respondents did not oppose the adjournment.

The Divisional Court vacated a prior order to permit the motion and granted the adjournment.

A reporter sought access under the Freedom of Information and Protection of Privacy Act to records of communications among Ministry of the Attorney General officials regarding an ongoing, high-profile criminal prosecution of police officers.

The Ministry refused, relying on the exclusion in s. 65(5.2) for records relating to an ongoing prosecution.

An adjudicator ordered the records produced for an inquiry, interpreting the exclusion narrowly to require a 'substantial connection' and limiting it to documents in the Crown brief.

On judicial review, the Divisional Court quashed the order, holding that the adjudicator erred in law by reading in a substantial connection requirement and that the exclusion applied broadly to protect the integrity of ongoing criminal proceedings.

The applicant applied for judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of mediation and settlement materials.

The materials had been prepared for the mediation of ongoing litigation between the applicant and the respondent.

The Divisional Court granted the application, holding that the records were exempt from disclosure under both the common-law settlement privilege and section 19 of the Freedom of Information and Protection of Privacy Act.

The court emphasized that the public interest in encouraging settlement trumps the public interest in transparency of government action in these circumstances.

The Ministry of the Attorney General sought judicial review of two Information and Privacy Commissioner decisions ordering the disclosure of police records.

The Ministry argued the records were exempt under s. 19(b) of the Freedom of Information and Protection of Privacy Act because copies of the records were contained in the Crown brief.

The Divisional Court dismissed the applications, holding that s. 19(b) does not exempt records in the possession of the police that were created during an investigation merely because copies later became part of the Crown brief.

A journalist made a freedom of information request for anonymized data from police databases to investigate racial profiling.

The police refused, arguing that extracting the data required creating a new algorithm, which meant the requested information was not a 'record' under s. 2(1)(b) of the Municipal Freedom of Information and Protection of Privacy Act.

The adjudicator ordered the police to respond to the request, but the Divisional Court quashed the order.

On appeal, the Court of Appeal restored the adjudicator's order, holding that where requested information can be produced from an institution's existing computer software by means of technical expertise normally used by it, it constitutes a record under the Act.

The applicant sought judicial review of an Adjudicator's decision upholding the Ministry of Natural Resources' disclosure of certain records to a requester.

The applicant argued the records were exempt from disclosure under s. 17(1) of the Freedom of Information and Protection of Privacy Act as they contained confidential commercial information.

The Divisional Court dismissed the application, finding the Adjudicator's conclusion that the information was negotiated rather than 'supplied' in confidence was reasonable.

The Ministry of Correctional Services and a journalist (Jane Doe) both brought applications for judicial review of decisions by the Information and Privacy Commissioner (IPC) regarding access to records relating to allegations of abuse by Ministry employees.

The Divisional Court held that the IPC correctly interpreted the employment-related exclusion in s. 65(6) of the Freedom of Information and Protection of Privacy Act, finding it did not apply to records of civil litigation where the Crown is vicariously liable for employee torts.

The Court also upheld the IPC's findings on solicitor-client and litigation privilege under s. 19, and personal privacy under s. 21.

However, the Court found the IPC erred by failing to apply the public interest override in s. 23 to records exempted under s. 19, and referred the matter back to the IPC.

The Toronto Police Services Board was successful in its application to quash an order issued by the Information and Privacy Commissioner.

The Board sought costs against the respondent, James Rankin.

The Divisional Court rejected the respondent's arguments that he was successful on the majority of issues and that the matter was novel and of public interest.

Costs were awarded to the Board on a partial indemnity basis fixed at $15,000.

The Ministry of the Attorney General sought judicial review of two orders by the Information and Privacy Commissioner requiring the disclosure of total dollar figures for legal services rendered to other ministries.

The Ministry argued the information was protected by solicitor-client privilege under s. 19 of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the applications, finding the IPC correctly applied the rebuttable presumption of privilege test from Maranda v. Richer and reasonably concluded the presumption was rebutted because disclosing the aggregate amounts would not reveal privileged communications.

A journalist requested electronic data from the police board's databases, asking that names be replaced with randomly-generated unique numbers.

The board refused, arguing this would require the creation of a new record.

The Information and Privacy Commissioner ordered the board to issue access decisions.

On judicial review, the Divisional Court quashed the Commissioner's order, finding that the Assistant Commissioner failed to consider whether the requested record could be produced by means 'normally used by the institution' as required by section 2(b) of the Municipal Freedom of Information and Protection of Privacy Act.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of specific information in a record.

The applicant argued that disclosure would cause competitive harm and reduce incentives to submit comprehensive proposals in future tenders.

The Divisional Court dismissed the application, finding the Commissioner's conclusions reasonable, as there was an absence of detailed and convincing evidence to support the allegations of competitive harm.

The Toronto Star made a freedom of information request for data from two police firearms databases, SOURCE and FATE.

The Adjudicator ordered partial disclosure of the SOURCE database but denied access to the FATE database under the law enforcement intelligence exemption.

Both the Ministry and the Star sought judicial review.

The Divisional Court upheld the Adjudicator's decision regarding the FATE database but quashed the order disclosing the SOURCE database, finding that the Adjudicator unreasonably interpreted the 'law enforcement matter' exemption.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner denying his request under the Municipal Freedom of Information and Protection of Privacy Act for access to notes made by an independent investigator appointed by the City of Toronto.

The investigator had been retained to review the procurement process for the Union Station redevelopment.

The Divisional Court upheld the Commissioner's decision, finding that the investigator was an independent contractor, not an employee or agent of the City.

Applying the correctness standard of review, the court concluded that the requested records were not in the custody or under the control of the City, and therefore were not subject to disclosure under the Act.

The application for judicial review was dismissed.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner dismissing his privacy complaint without an investigation.

The applicant alleged his privacy rights were breached by references to him in a municipal report regarding the Union Station redevelopment.

The Divisional Court dismissed the application, holding that the Commissioner's role in privacy matters under the Municipal Freedom of Information and Protection of Privacy Act is advisory rather than adjudicative, and therefore the Commissioner has no statutory duty to investigate and decide such complaints.

The applicant sought judicial review to quash two decisions of the Information and Privacy Commissioner dismissing her complaints of privacy breaches under the Municipal Freedom of Information and Protection of Privacy Act.

The applicant argued the Commissioner had a statutory duty to investigate and adjudicate her complaints.

The Divisional Court dismissed the application, holding that the Commissioner's role regarding privacy complaints is advisory to the Legislature, not adjudicative.

Furthermore, the court found that the Commissioner's activities in gathering information for her annual report fall within parliamentary privilege and are not subject to judicial review.

The applicant sought judicial review of decisions by the Information and Privacy Commissioner denying him access to certain government and police records related to his 1982 prosecution for fraud.

The applicant sought the records for use in a civil action for malicious prosecution.

The Divisional Court dismissed the application, finding that the Assistant Commissioners reasonably applied the statutory exemptions for advice to government and personal privacy under FIPPA and MFIPPA.

The court affirmed that the applicant's private interest in civil litigation did not constitute a compelling public interest sufficient to override the privacy exemptions.

The Ministry of Correctional Services appealed an order granting a requester's counsel access to records subject to a claim of solicitor-client privilege for the purpose of arguing a judicial review application under the Freedom of Information and Protection of Privacy Act.

The Supreme Court of Canada allowed the appeal, holding that records subject to a claim of solicitor-client privilege may only be disclosed where 'absolutely necessary'.

The Court found no such absolute necessity in this case.

The Court also held that while the procedural provisions of the Access Act prohibiting disclosure apply to the Commissioner, courts on judicial review are governed by their own procedural rules but must adopt procedures to protect confidentiality until a substantive decision is made.

Following his conviction for assaulting his wife, the requester sought access to the Crown brief and related documents under the Freedom of Information and Protection of Privacy Act.

The Ministry denied access under the solicitor-client exemption in s. 19 of the Act.

The adjudicator ordered disclosure, finding that the exemption under the second branch of s. 19 terminated when the litigation ended and that privilege was waived for documents disclosed to defence counsel.

On judicial review, the Divisional Court quashed the decision, holding that the statutory exemption in s. 19 does not terminate with the litigation and is not waived by the Crown's mandatory Stinchcombe disclosure.

The applicant sought judicial review of an order by the Information and Privacy Commissioner requiring the Ministry of the Attorney General to disclose records provided under the Casino Rama Revenue Agreement.

The applicant argued the records contained commercial information and their disclosure would cause harm.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's finding that the records related to the administration of funds, not commercial operations, and that the applicant failed to provide sufficient evidence of expected harm.

The application for judicial review was dismissed.