Table of contents
- Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
- Fonderie Horne c. Ministère de l'Environnement et de la Lutte contre les changements climatiques, 2023 QCCQ 10259
- American Iron & Metal Company Inc. v. Saint John Port Authority, 2023 FC 1267
- Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Justice and Public Safety), 2023 NLCA 27
- Savard c. Université de Montréal, 2023 QCCAI 237
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Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
Read more about the case: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
Facts
A journalist from the Canadian Broadcasting Corporation requested access to 23 mandate letters delivered by the Premier of Ontario to his ministers in 2018. These letters set out the Premier's views on policy priorities. The Cabinet Office declined the request, claiming that the letters were exempt from disclosure under the Cabinet records exemption in section 12(1) of Ontario's Freedom of Information and Protection of Privacy Act (FIPPA), which protects the confidentiality of records that reveal the substance of the Cabinet's or its committees' deliberations.
The Information and Privacy Commissioner of Ontario (IPC) found that the letters were not exempt and ordered their disclosure. The IPC's decision was upheld by the majority of the Court of Appeal for Ontario, which found the IPC's decision reasonable.
Decision
The appeal to the Supreme Court of Canada was allowed, and the IPC's order was set aside. The mandate letters are protected from disclosure under s. 12(1) of FIPPA.
The majority of the Supreme Court explained that, in addressing assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be mindful not only of the paramount importance of public access to government-held information, but also of the fundamental purpose of Cabinet secrecy to enable effective and responsible government, as well as the considerations of efficiency, candour and solidarity that underlie it. All freedom of information legislation across Canada balances these two essential objectives through a general right of public access to government-held information subject to exemptions or exclusions. Courts and decision makers must also be mindful of the dynamic nature of executive decision making (which goes beyond formal meetings of Cabinet and its committees, and includes priorities communicated by the Premier at the outset of his term), the function of Cabinet itself and its members, the role of the Premier, and Cabinet's prerogative to choose when and how to announce its decisions.
The majority found that, in this case, the narrow zone of protection for Cabinet deliberations created by the IPC's interpretation and application of s. 12(1) of FIPPA was not justified, even on a more deferential standard of reasonableness. The majority found that 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 majority found that the IPC's narrow interpretation of the “substance of deliberations” was unreasonable, as was the IPC's application of the provision to the mandate letters.
Key Takeaway
Freedom of information legislation strikes a balance between the public's need to know and the confidentiality that 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. The interpretation and application of s. 12(1) of FIPPA must not be limited in a manner that would provide an unreasonably narrow zone of protection.
Fonderie Horne c. Ministère de l'Environnement et de la Lutte contre les changements climatiques, 2023 QCCQ 10259
Read more about the case: Fonderie Horne c. Ministère de l'Environnement et de la Lutte contre les changements climatiques, 2023 QCCQ 10259
Facts
The appellant Fonderie Horne, who operates a major industrial facility in Rouyn-Noranda, appealed from the decision rendered by the Commission d'accès à l'information (the Commission) which denied its application for review of a decision to disclose a document.
The Ministère de l'Environnement et de la Lutte contre les changements climatiques (the Minister) agreed to disclose tables showing all measurements taken of various air emissions from the Horne smelter in Rouyn-Noranda for 2019 following an access request made by an interested party. Fonderie Horne referred the matter to the Commission, requesting a review of the Minister's decision to disclose the document.
Fonderie Horne claimed that the Commission committed a decisive error of law in its interpretation of the exception to the right of access provided for in section 28 of the Act respecting access to documents held by public bodies and the protection of personal information (the Access Act), by adopting a criterion of application that is not in accordance with the law. Further, the appellant argued that the Commission committed a decisive error of law in its interpretation of paragraph 4 of section 118.4 of the Environment Quality Act (EQA), which led it to erroneously conclude that it applied in this case.
Decision
The court concluded that s. 28 of the Access Act, which aims to avoid prejudicing investigations or potential investigations, is not a substitute or alternative for sections 23 and 24 of the Access Act, which deal with the protection of industrial or commercial secrets. The court pointed out that the document in dispute must be produced and transmitted to the Minister annually by the appellant under its ministerial authorization. According to the court, if the appellant's argument were to be accepted, the document in dispute could never be transmitted to an access requestor, even though it is clear that there is not and never could be any criminal prosecution against the appellant in relation to the contents of this document.
The court also interpreted s. 118.4(4) of the EQA, which grants any person the right to obtain the described information and documents, unless the exception provided in s. 28 of the EQA applies. The court highlighted that the Access Act does not override the provisions of other statutes that provide a more generous right of access. In the court's view, the legislator has clearly indicated that the EQA regime is more generous and is part of the complete framework, which promotes citizen participation in maintaining and improving environmental quality. The court found that there is no error of law in the Commission's decision that would justify overturning it.
For all these reasons, the court dismissed the appeal.
Key Takeaway
Section 28 of the Access Act, which aims to avoid prejudicing investigations or potential investigations, is not a substitute or alternative for ss. 23 and 24, which notably deal with the protection of industrial or commercial secrets.
Moreover, the Access Act does not override the provisions of other statutes that provide a more generous right of access. The EQA provides a more generous right of access, which is part of its legislative framework to promote citizen participation in maintaining and improving environmental conditions.
American Iron & Metal Company Inc. v. Saint John Port Authority, 2023 FC 1267
Read more about the case: American Iron & Metal Company Inc. v. Saint John Port Authority, 2023 FC 1267
Facts
The applicant American Iron and Metal Company Inc. sought a review under subsection 44(1) of the Access to Information Act (ATIA) of the decision by the Saint John Port Authority to disclose portions of a 2011 lease agreement and a 2017 lease renewal and amending agreement entered into between American Iron and the Port Authority. The decision was made further to a request by the Canadian Broadcasting Corporation under section 6 of the ATIA. The Port Authority determined that certain information was exempt from disclosure under the ATIA, but concluded that the remainder of the two documents should be disclosed to the CBC. American Iron disagreed and sought to exempt large portions of the documents from disclosure under paragraphs 20(1)(b), (c) and/or (d) of the ATIA.
Decision
The court found that the information was not exempt under paragraph 20(1)(b) because it was not “supplied” by American Iron to the Port Authority, but rather constituted terms and conditions that were negotiated between the parties. The court also found that American Iron failed to establish a reasonable expectation of probable harm arising from the disclosure of the information as required under paragraphs 20(1)(c) and (d). The court held that American Iron's evidence was insufficient, speculative and based on generalities, bald assertions and hypothetical risks. The court also rejected American Iron's reliance on anticipated negative media coverage as a basis for exemption.
Key Takeaway
The decision demonstrates that a third party objecting to the disclosure of information should give careful consideration to the nature and extent of evidence needed — in the particular context of the case — to demonstrate why disclosure should not be made.
Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Justice and Public Safety), 2023 NLCA 27
Read more about the case: Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Justice and Public Safety), 2023 NLCA 27
Facts
An applicant made an access to information request to the Minister of Justice and Public Safety (the Minister) regarding a complaint about environmental violations. The Minister disclosed all relevant documents except those withheld under specific provisions of the Access to Information and Protection of Privacy Act, 2015 (ATIPPA 2015). The applicant filed a complaint with the Information and Privacy Commissioner, challenging the Minister's refusal to disclose the withheld records. The Commissioner requested that the Minister provide a complete copy of the records and justify the claimed exceptions to disclosure. The Minister argued that the records were protected by solicitor-client privilege.
Decision
The first judge made two key findings. First, the Commissioner did not have the authority to compel the disclosure of solicitor-client records, such that the Minister was not required to comply with the Commissioner's recommendation for disclosure. Second, even if the Commissioner had the authority, the Minister had met the burden of proving that the applicant had no right to access the solicitor-client privileged records.
The Court of Appeal examined the Supreme Court's decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, to perform its analysis. The Court agreed with the first judge that the relevant provisions of ATIPPA 2015 do not explicitly grant the Commissioner the power to compel the production of records subject to solicitor-client privilege. The Court also considered the purpose and intent of the legislation, as well as the importance of solicitor-client privilege in the legal profession, in analyzing the burden of proof placed on the Minister to establish that the applicant had no right to access the privileged records.
The Court emphasized that the conclusion that the Commissioner cannot compel the production of solicitor-client records does not leave an applicant without recourse. In such cases, an applicant can appeal the refusal directly to the Supreme Court of Newfoundland and Labrador under section 52 of ATIPPA 2015. The courts would then address the issues associated with the claim of solicitor-client privilege, as is traditionally done.
Key Takeaway
This decision highlights the importance of solicitor-client privilege and the limits of an Information and Privacy Commissioner's powers in accessing privileged information.
Savard c. Université de Montréal, 2023 QCCAI 237
Read more about the case: Savard c. Université de Montréal, 2023 QCCAI 237
Facts
The petitioner applied to the Commission d'accès à l'information after the respondent only partially complied with his access request. Université de Montréal refused access to certain documents by invoking the protection of tests intended for comparative appraisal (section 40 of the Act respecting Access to documents held by public bodies and the Protection of personal information (the Act)) as well as the protection of information of a technical nature (section 22 of the Act).
Only the latter remains in dispute, which regards certain documents provided to students for identified courses. With respect to this matter, Université de Montréal maintained that in addition to certain documents containing both test and training elements, the disclosure of other requested documents (i.e., content of lectures, PowerPoint presentations, recorded courses) would likely cause financial loss to Université de Montréal or to provide an advantage to third parties.
Decision
The Commission ordered Université de Montréal to submit to the plaintiff all requested documents for which the defendant invoked s. 22 of the Act, stating that the loss of prestige is not an economic impact within the meaning of s. 22 of the Act; rather, the competition that exists between educational institutions is to attract the best candidates. Université de Montréal presented no evidence of any economic impact resulting from the fact that the candidates selected would no longer be the best in its opinion due to the disclosure of the teaching material that was the subject of the access request.
Key Takeaway
The loss of prestige is not an economic impact within the meaning of s. 22 of the Act.
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