Administrative law – Freedom of information and protection of privacy – Disclosure – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter
Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner),  O.J. No. 2601, Ontario Superior Court of Justice, June 26, 2003, Blair, Lang and C. Campbell JJ.
Two journalists (the “Requesters”) applied under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, for access to any information and records that would explain the withdrawal of an individual’s appeals to the Health Services Board over the level of funding and at-home care provided for the individual by the Ministry of Health and Long term Care. Specifically, the Requesters sought details of any pre-hearing settlement. The Ministry refused to confirm or deny the existence of any responsive records in relation to the requests, relying on the ground that to do so would constitute an unjustified invasion of personal privacy within the meaning of s.21(5) of the Act. On appeal to the Information and Privacy Commissioner, the Assistant Commissioner refused to uphold the Ministry’s decision based on what he interpreted to be a two-part test under section 21(5). The reasonableness of that interpretation was at issue in the Ministry’s application for judicial review.
The standard of review respecting decisions of the Commissioner concerning the interpretation and application of its statute was “reasonableness simpliciter”.
A head may refuse to confirm or deny the existence of a record if disclosure of the record or disclosure of the existence of the record would constitute an unjustified invasion of personal privacy.
The Commissioner applied a two-pronged test in its interpretation of section 21(5). In order to substantiate a section 21(5) claim, the Ministry must provide sufficient evidence to establish that: (1) Disclosure of the records (if they exist) would constitute an unjustified invasion of personal privacy; and (2) Disclosure of the fact that the records exist (or do not exist) would in itself convey information to the requester, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.
The majority of the court found that the two-part interpretation given by the Commissioner was neither the correct interpretation nor one that the language of the Act, read as whole, could reasonably bear. The interpretation “is not supported by any reasons that can stand up to a somewhat probing examination”: Law Society of Nova Scotia v. Ryan,  S.C.J. No. 17, para.55. The effect of the Commissioner’s two-stage interpretation was to elevate what was in substance a factor for a head to consider to the level of a statutory test.
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