Case Report – Doctors’ Association a “trade union” for the purposes of FIPPA

On September 9th, the Divisional Court dismissed an application for judicial review of an Information and Privacy Commissioner/Ontario order in which parts of a memorandum of agreement between the Ontario Medical Association, the Canadian Medical Protective Association and the Ministry of Health and Long Term Care were ordered to be disclosed.

On a point relating to the IPC’s jurisdiction over the MOU, the Court held that the MOU was “an agreement between an institution and a trade union” and therefore not excluded from FIPPA as a record of communications about labour relations.  It relied heavily on the Ontario Court of Appeal’s 2003 finding that negotiations between the OMA and the Ministry were a matter of “labour relations” for the purposes of applying the exclusion itself, therefore making a similarly-broad interpretation of the exception to the exclusion proper in the name of coherence.

The Court also considered the applicants’ attempt to distinguish the terms of the MOU from the terms of a standard supply contract, which are routinely denied protection from public access on the principle that information produced by a negotiation cannot be “supplied” by a third-party.  The IPC’s key factual finding, deferred to by the Court, was that certain actuarial assumptions provided by the CMPA and written into the MOU were a matter of negotiation when viewed in light of the parties’ custom. (Presumably these assumptions determined the cost of insurance, the subject matter of the MOU.)

Finally, the Court affirmed the IPC’s finding that certain information had not been supplied with a reasonable expectation of confidentiality.

Canadian Medical Protective Association v. Loukidelis, 2008 CanLII 45005 (Ont. Div. Ct.).