Attached are the cases and the instructions. For the referencing style, we want to use the McGill citation guide, it is not listed in the options.
CITATION: Attorney General for Ontario v. Information and Privacy Commissioner, 2020 ONSC 5085 DIVISIONAL COURT FILE NO.: 456/19 DATE: 20200827 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Swinton, Penny and Kristjanson JJ. BETWEEN: ) ) Attorney General for Ontario Applicant – and – Information and Privacy Commissioner and Canadian Broadcasting Corporation Respondents – and – Centre for Free Expression, Canadian Journalists for Free Expression, The Canadian Association of Journalists and Aboriginal Peoples Television Network Intervenors ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Judie Im and Nadia Laeeque for the Applicant William S. Challis for the Information and Privacy Commissioner Justin Safayeni and Spencer Bass for the Canadian Broadcasting Corporation Daniel Sheppard for the Intervenors ) ) ) HEARD: May 21, 2020 Penny J. Overview [1] In this application the Attorney General for Ontario seeks judicial review of Order PO – 3973, made on July 15, 2019 by Brian Beamish, the Information and Privacy 20 20 O N S C 5 08 5 (C an LI I) http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/ Page: 2 Commissioner of Ontario, under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. In this Decision the IPC ordered disclosure to the requester, Canadian Broadcasting Corporation, of mandate letters from the Premier, Doug Ford, to each of his ministers who, together with the Premier, comprise the Executive Council. The Cabinet Office opposed disclosure on the basis of the Cabinet privilege exemption under s. 12(1) of the Act. [2] There are three issues to be resolved on this application for judicial review: (1) the standard of review; (2) whether the IPC’s interpretation and application of s. 12(1) of the Act was unreasonable; and (3) whether the IPC imposed an unreasonable burden of proof on the Cabinet Office. [3] For the reasons that follow, I find that the standard of review is reasonableness and that the Decision was reasonable. The application for judicial review is therefore dismissed. Background [4] The mandate Letters which are at the heart of this application are addressed to each minister and set out the policy priorities of the Premier with respect to each minister’s mandate. They include the Premier’s advice, instruction and guidance to each minister in carrying out his or her ministerial duties and responsibilities. [5] A journalist with the CBC made an application under the Act for disclosure of the Letters. The Cabinet Office opposed disclosure, relying on the introductory wording of the Cabinet records exemption under s. 12(1) of the Act, which provides that, “A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees…”. While subparagraphs 12(1)(a) to (f) enumerate specific records that are exempt from disclosure, it is common ground that none of these specific subparagraphs are applicable in this case. Thus, the issue to be determined before the IPC turned on the introductory language of s. 12(1). [6] Cabinet Office’s position was that the disclosure of the Letters would reveal the substance of deliberations: 1) of the Premier in setting Cabinet’s policy priorities which are inherently part of the deliberative process of Cabinet; 2) at the initial meeting of Cabinet where the Letters were first delivered to each minister; and 3) at future Cabinet meetings where the policy priorities set out in the Letters would be further discussed. [7] The parties engaged in a lengthy process of written submissions to the IPC. Following deliberation, the IPC issued lengthy and detailed reasons, in which he found that disclosure of the mandate Letters would not reveal the substance of any Cabinet deliberations and so he ordered that the Letters be released. 20 20 O N S C 5 08 5 (C an LI I) apple Highlight Page: 3 [8] In his decision, the IPC found that the applicable test was whether disclosure of the Letters would reveal the substance of deliberations of Cabinet or its committees or would permit the drawing of accurate inferences with respect to those deliberations. The IPC further found that for the exemption in the introductory words of s. 12(1) to apply, the institution had the evidentiary burden of establishing a “linkage” between the content of the record and the actual substance of Cabinet deliberations, past or future. There is no controversy about these principles. [9] The IPC found that the introductory words of s. 12(1) were not intended to protect the “outcome” of a deliberative process but rather communications within the deliberative process itself. The IPC found that because the Letters did not reveal any details about meetings, discussions, issues, opinions or consultations relating to the formulation of the Premier’s policy priorities and goals, or the Cabinet’s consideration of them, the Letters were more appropriately considered the endpoint or the product of the Premier’s deliberations and were therefore not exempt. [10] The IPC also found that the Letters being placed before Cabinet provided some, but not necessarily determinative, evidence that disclosing the Letters would reveal the substance of deliberations of Cabinet. Because the Letters did not reveal any views, opinions, thoughts, ideas or concerns expressed by Cabinet ministers (or any deliberations by the Premier for that matter), in the absence of any evidence of what transpired at the meeting, the Letters could only be considered “at best” to contain” topics” that may have arisen at the Cabinet meeting. There was no such evidence of what transpired at the meeting. [11] Finally, the IPC found that the limited evidence available established only that the subject matter of some unspecified policy initiatives identified in the Letters would, assuming they were pursued, likely be considered at some point in future Cabinet meetings. However, the IPC concluded that this was insufficient to bring the Letters within the protection of s. 12(1). The IPC found that making accurate inferences about the substance of future deliberations would require the substance of any minister’s actual proposals, plans for implementation or the results of consultations, program reviews or opinions, none of which was put before the IPC in support of the Cabinet Office’s position. Analysis of the Issues [12] As noted earlier, there are three issues to be resolved on this application for judicial review. 1 1 Counsel for the IPC filed a factum which, although addressing standard of review, was almost entirely focused on the merits of the IPC’s Decision. The Court questioned whether this was appropriate in light of the factors set out in para. 59 of the decision of the Supreme Court of Canada in Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44, [2015] S.C.R. 147, and declined to hear oral submissions from counsel for the IPC on issues other than standard of review. 20 20 O N S C 5 08 5 (C an LI I) Page: 4 Standard of Review [13] The analysis of the standard of review starts with a presumption that “reasonableness” is the applicable standard. This presumption is rebuttable in two instances: 1) where the legislature has chosen a different standard (usually by way of appeal); and 2) where the “rule of law” requires a standard of correctness, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 17. [14] The Attorney General argues that the rule of law exception applies in this case. The interpretation of s. 12(1) of the Act involves Cabinet privilege and confidentiality, issues which have significant legal consequences for the justice system as a whole and for other institutions of government. [15] I cannot agree. [16] This case involves a straightforward issue of statutory interpretation of one specific provincial statute and the scope and application of the s. 12(1) protection against disclosure to specific documents. The rule of law exception is not engaged simply because “the question, when framed in a general or abstract sense, touches on an important issue,” Vavilov para. 61. There is no issue of the “rule of law” or of constitutional law engaged in this case which removes the analysis from the presumed standard of reasonableness. [17] Reasonableness is the appropriate standard of review in this case. The reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. Was the IPC’s Interpretation of s. 12(1) Unreasonably Narrow and Restrictive? [18] The fundamental precepts of statutory interpretation which are applicable in this case are not controversial. The modern approach to statutory interpretation requires the words of an enactment 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 the legislature. The underlying purpose of this Act as a whole is to facilitate transparency and promote accountability in government. The underlying purpose of the exemption under s. 12(1) is to promote free and frank discussion among Cabinet members without concern for the chilling effect that might result from disclosure of their statements or the material on which they were deliberating. [19] It is also accepted by the parties and the IPC that in order for the exemption under s. 12(1) to apply, disclosure of the record must “reveal the substance of deliberations” of Cabinet or “permit the drawing of accurate inferences” about past or future Cabinet deliberations. It is also accepted that the use of the term “including” in the introductory words of s. 12(1) means that any record which would reveal the substance of deliberations or permit the drawing of accurate inferences qualifies for the exemption; the specifically enumerated categories of record in subparagraphs (a) to (f) must be 20 20 O N S C 5 08 5 (C an LI I) Page: 5 interpreted as providing an expanded definition of, or at the very least the removal of any ambiguity about, the types of records that are exempt from disclosure. [20] Notwithstanding these broad areas of interpretive agreement, the Attorney General submits that the IPC’s interpretation of s. 12(1) and its application to the