OCA says Children’s Lawyer records not under MAG’s custody or control

On June 18th the Court of Appeal for Ontario held that the Ministry of the Attorney General is not in custody or control of records in a Children’s Lawyer litigation file even though the Children’s Lawyer, for administrative purposes, is part of MAG. The finding turns on the Children’s Lawyer’s independence and the privacy interests of the children it represents. These kind of contextual factors are important to the custody or control analysis. As stated by the Court, “an organization’s administrative structure is not determinative of custody or control for purposes of FIPPA.”

This decision is consistent with other law that suggests records within an institution are not always in custody or control of an institution – e.g., certain faculty records and personal e-mails. Custody or control is therefore no simple concept to administer and is prone to dispute. At least for now IPC decisions will be subject to judicial review on the correctness standard, another (surprising) finding the Court of Appeal made in rendering its decision.

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII).

Div Ct. quashes IPC decision for failure to identify PI under consideration

On December 18th, the Divisional Court quashed an IPC/Ontario order that affirmed a municipal institution’s decision to apply the public interest override in disclosing an internal investigation report. The Court held that the IPC erred by not identifying the personal information under consideration in its reasons:

[67] The Commissioner is essentially asking this court to undertake the detailed analysis of the information in the Report described above, decide what portions of the Report fall within the s. 14 personal information exemption, and then assess the reasonableness of the Commissioner’s application of the s. 16 test based on that conclusion. That is not the role of this court. That complex analysis goes beyond supplementing the reasons. It amounts to asking this court to review the reasonableness of the Commissioner’s decision based on our own assessment of what was exempted under s. 14 rather than based on what the Commissioner decided was exempted.

[68] Given the acknowledged need to disclose only that portion of the exempted information that meets the s. 16 “clearly outweighs” balancing test, each piece of personal information that is exempted under s. 14 must form part of the analysis that the section requires. In this case, we do not know what the Commissioner was weighing as against the public interest. This is not a matter of considering what reasons could be offered in support of the decision; it is a matter of not knowing what his decision was on that complex issue, which is prerequisite to the application of s. 16. This is especially important in regard to the application of s.16 because the public interest override, which is rarely used, can have a major impact on individuals whose personal information would normally be protected by a statutory exemption.

Barker v. Ontario (Information and Privacy Commissioner), 2017 ONSC 7564 (CanLII).

Court affirms IPC decision on doctor payments

On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.

The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.

Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.

Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).

Reasonable necessity not enough to justify collection under Ontario’s public sector statutes

Section 38(2) is an important provision of Ontario’s provincial public sector privacy statue. It requires institutions to satisfy a necessity standard in collecting personal information. Ontario’s municipal public sector privacy statute contains the same provision.

On May 4th, the Divisional Court dismissed an Liquor Control Board of Ontario argument that the Information and Privacy Commissioner/Ontario had erred by applying a higher standard than “reasonable necessity” in resolving a section 38(2) issue. The Divisional Court held that the Court of Appeal for Ontario’s Cash Converters case establishes just such a standard:

The LCBO relies upon Cash Converters to support its submission that the IPC erred in not interpreting “necessary” as meaning “reasonably necessary.” However, Cash Converters does not interpret “necessary” in this way. In fact, it suggests the opposite. Arguably, something that is “helpful” to an activity could be “reasonably necessary” to that activity. Yet, the Court of Appeal makes it clear that “helpful” is not sufficient.

It’s hard to fathom a legislative intent to prohibit a practice that is, by definition “reasonable.” If the LCBO seeks and is granted leave to appeal this could lead to an important clarification from the Court of Appeal on a strict interpretation of section 38(2) that has stood for some time. The LCBO practice at issue – which involves collecting the non-sensitive information of wine club members to control against the illegal stockpiling and reselling of alcohol – is a good one for testing the line.

Liquor Control Board of Ontario v Vin De Garde Wine Club, 2025 ONSC 2537.

FOI matter moot because the stated reasons for a request spent

On December 15, the Alberta Court of Appeal held that an FOI matter was moot, in part, because the stated reasons for a request were spent. It said:

Second, the dispute about whether certain records can remain private is of no further consequence or practical utility. The ATA wanted SBEBA’s records for reasons that are, now, purely academic. There is no longer any need for the ATA “to gain a full understanding of the operation of SBEBA with its member school boards”; there is no longer any risk of the ATA not “following correct procedures related to the SBEBA” or “interfering with or being seen to interfere with the SBEBA”. Further, the collective agreement entered into between the ATA and Buffalo Trail has long since expired, such that there is no longer any need “to act fully on” it. SBEBA was not revived for the most recent collective bargaining process and will not be the bargaining agent for, or otherwise negotiate on behalf of, Buffalo Trail in any future such process or dispute.

The Court also held that the OIPC lacked standing to pursue an appeal because the issue under appeal did not go to its jurisdiction.

This is another example of the very tough go the OIPC has had in the Alberta courts.

Alberta Teachers’ Association v Information and Privacy Commissioner, 2014 ABCA 432 (CanLII).

Review of IPC exclusion decisions now (officially) subject to reasonableness review

A friend just brought a notable FIPPA judicial review from February 24th to my attention. In it, the Divisional Court affirmed an IPC order to disclose the full names of FRO employees in response to a request for personal information.

The IPC held that the employment-related records exclusion in FIPPA did not apply to certain records containing employee names – records of services provided to the requester. The Court reviewed this on the reasonableness standard, finding that pre-Alberta Teachers‘ case law supporting a review on the correctness standard no longer applies. On the application of the exclusion, the Court rejected an argument that the records of service provided were employment-related in the context:

To qualify for the exclusion, the record must be about labour relations or employment-related matters. The dictionary definition of the word “about” requires that the record do more than have some connection to or some relationship with a labour relations matter. “About” means “on the subject of” or “concerning”: see Concise Oxford English Dictionary, 11th ed., 2004, s.v. “about”. This means that to qualify for the exclusion the subject matter of the record must be a labour relations or employment-related matter.

Adopting the Ministry’s broad interpretation of “about” would mean that a routine operational record or portion of a record connected with the core mandate of a government institution could be excluded from the scope of the Act because such a record could potentially be connected to an employment-related concern, is touched upon in a collective agreement, or could become the subject of a grievance. This interpretation would subvert the principle of openness and public accountability that the Act is designed to foster.

This should be read to be consistent with the Divisional Court’s earlier decision that there need only be “some connection” with excluded subject matter for the exclusion to apply: see Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII). Records that have some connection (i.e. a partial connection) to excluded subject matter are arguably still excluded, but the connection must be real, not speculative and not driven by the context in which a request is made.

The Court also affirmed the IPC’s finding that full name information is not exempt under the “unjustified invasion of personal privacy” exemption.

Question. Why not argue that the information at issue – full names or identifying information – is not “personal information” to which the right of access to personal information applies? The right of access to personal information applies to information and not whole records. In the absence of a special context, the identity of employee/service provider names should not constitute the requester/service recipient’s personal information.

Ministry of Community and Social Services v Doe et al (2014), 120 O.R. (3d) 451.

Div Ct affirms decision to give access to government contract

On December 2nd the Divisional Court affirmed an IPC/Ontario decision that granted access to a municipal contract. The decision is an administrative law decision, but the Court does summarize the principles that govern access to government contracts as follows:

absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not “supplied” by the third party under section 10(1) of the Act [and therefore potentially subject to exemption]
the inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure
the immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs

Under these principles government contracts are very accessible, so much so that the IPC has suggested that Ontario access legislation be amended so contract requests give rise to fewer disputes.

On administrative law, the Court applied Newfoundland Nurses and held that the IPC’s “conclusory” reasons were not sufficient grounds for review in light of the record.

Miller Transit Limited v Information and Privacy Commissioner of Ontario, 2013 ONSC 7139 (CanLII).

[Here’s another contract case from November 28th, also written by Justice Himel but too fact specific to warrant a post. Partial access appeal decision affirmed: HKSC Developments LP v Infrastructure Ontario and Information and Privacy Commissioner of Ontario, 2013 ONSC 6776 (CanLII).]

Judicial review not the regular means to challenge PIPEDA investigation reports

On January 15th the Federal Court dismissed two judicial review applications brought by a self represented applicant who took issue with two OPC investigation findings made under under PIPEDA. The Court held that an application under section 14 of PIPEDA, which invites a de novo hearing, was an adequate alternative remedy to judicial review:

In conclusion, I find that there is an adequate alternative remedy provided by section 14 of the PIPEDA that would have been the appropriate recourse to deal with all matters raised concerning the complaint, the OPC reports and the investigation that followed. When comparing the recourse provided by section 14 of the PIPEDA with the possibilities offered by judicial review, which is discretionary and extraordinary in nature and limited to the review of the reports and the documentation contained in the certified record, I find that the former is the appropriate recourse as the intent of the legislator to this effect is clear. I will not therefore exercise my discretion to judicially review the reports of the Privacy Commissioner, and I will dismiss both applications for judicial review.

In making this finding the Court suggested that a judicial review application to allege bias or that the OPC committed some other procedural injustice might be amenable to judicial review.

Kniss v Canada (Privacy Commissioner), 2013 FCC 31.

Judicial review petitition moot after requester loses interest in obtaining access to record

On January 8th, the Supreme Court of British Columbia dismissed a British Columbia Lottery Corporation petition for judicial review because the requester was no longer interested in receiving a copy of the policies and procedures manual at issue. It rejected the BCLC’s argument that the petition should be heard because of the prejudice it would face in dealing with future requests for the same record, stating “If, in the future, some other party seeks production of the Manual, the Commissioner will have to decide the matter based on the law and evidence as it then exists.”

British Columbia Lottery Corporation v Dyson, 2013 BCSC 11 (CanLII).

BC access decision quashed for improper consideration of expert evidence

On January 8th, the Supreme Court of British Columbia quashed an access decision because the Commissioner admitted opinion evidence, but did not consider it to be expert evidence.

The Court differed with the Commissioner in finding that the opinion was “necessary” to resolve an issue about whether the disclosure of sales data, by postal code, could reasonably be expected to cause economic harm to the British Columbia Lottery Corporation. The Commissioner held that the opinion was unnecessary because it went to the very question before her. The Court held that the opinion was necessary because it went to constituent facts such as whether the data had monetary value and could provide grey market competitors with a competitive advantage. Given the opinion met the criteria for admissibility, the Court held the Commissioner erred in law by failing to consider it as expert evidence. It said, “Opinion evidence is only admissible as expert evidence.”

British Columbia Lottery Corporation v Skelton, 2013 BCSC 12 (CanLII).