Administrative law – Freedom of information and protection of privacy – Privacy commissioner – Disclosure – Invasion of personal privacy – 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. 4813, Ontario Court of Appeal, November 26, 2004, Abella, Moldaver and Goudge JJ.A.
This appeal arose in the context of a dispute between an individual and Ontario’s Ministry of Health and Long-Term Care over the level of public funding provided by the Minister for the home care for that individual. The individual took his case to the Public Services Board, which was empowered to adjudicate the dispute. When the individual withdrew his appeal, two journalists applied under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c. F.31, for access to any records that would explain the withdrawal, including the details of any settlement made by the Ministry with the individual. The Minister responded to both requests by relying on section 21(5) of the Act, which provides that: “A Head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy.”
Both of the journalists appealed to the Information and Privacy Commissioner, and in both cases the Commissioner declined to uphold the Minister’s decision to refuse to confirm or deny the existence of any records. In his Reasons, the Commissioner held that 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 records exist (or do not exist) would in itself convey information to the requestor, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.
The Divisional Court, on judicial review, held that the proper standard of review was that of reasonableness. A majority of that court found that the Commissioner’s two-part test was an interpretation of section 21(5) that the language of the subsection cannot reasonably bear because the second part of the test became a statutory test not found in the subsection. The majority overturned the Commissioner’s Order to disclose the contents of the specific record.
The first issue considered by the Court of Appeal was the proper standard of review. Employing the pragmatic and functional analysis, the Court first considered whether there was a privative clause. The Act did not speak expressly to the role of the Court in reviewing the administrative decision. The second factor was the relative expertise of the Commissioner and the Court both in relation to the Act generally and to the particular decision under review. The majority held that the Commissioner was created as a specialized decision maker, implying that the legislature saw the Commissioner as the appropriate reviewer of disclosure decisions by government. The disclosure decision under review here required the striking of a delicate balance between the two fundamental purposes of the Act, providing the public with the right of access to information held by government and protecting the privacy of individuals with respect to that information. This was not a task for which the Courts could claim the same familiarity or specialized experience as the Commissioner. Finally, the Commissioner was called on, not just to decide individual appeals, but to give general policy advice and this was another reflection of the Commissioner’s relative expertise that suggested the need for judicial deference.
In the third contextual factor, the Court considered the broad purpose of the Act as a whole and of section 21(5) in particular, and held that the Act was conceived as a mechanism to advance the right of the public to access information in the hands of government and to protect the privacy of individuals with respect to that information, and to balance the tension between those two objectives. The Commissioner’s role was held to be central to advancing that legislative purpose. This was a dispute that was more polycentric than bipolar and the broad purpose of the Act as a whole and section 21(5) in particular, was consistent with a less searching, rather than a more searching standard of review.
The fourth factor was the nature of the problem before the Commissioner. While interpreting the meaning of section 21(5) was a pure question of law, the Commissioner was being required to determine the reach of the Minister’s discretion in light of the Act’s two fundamental purposes. Even though the nature of the problem before the Commissioner involved a pure question of law, that did not dictate strict scrutiny by the Court. The factors, viewed together, suggested that a moderate deference be accorded to the Commissioner’s decision and this was held to be the standard of reasonableness.
The Court proceeded to consider the reasonableness of the Commissioner’s statutory interpretation. The majority found that the Commissioner’s interpretation constrained the Minister’s discretion in a way that reflected the Act’s two basic purposes and struck the same balance between them that is found elsewhere in the Act. The interpretation was rationally supportable by reasons that could stand up to a somewhat probing examination.
The Respondent on appeal also challenged the Commissioner’s finding on the merits. This finding was held to fall squarely within the Commissioner’s expertise and it deserved significant deference. The Commissioner’s finding (that revealing the existence of any reports responsive to the requests would not constitute an unjustified invasion of personal privacy) was not unreasonable. This ground of appeal failed.
A final issue of appeal was the Commissioner’s decision to order that, assuming a particular report exists, the Minister would have to disclose its contents because to do so would not be an unjustified invasion of personal privacy. The Commissioner was not unreasonable in reaching this conclusion since the decision involved the application of certain statutory provisions to the facts of the case, which were at the core of the Commissioner’s expertise. The majority would interfere with this conclusion only with the exercise of significant deference, and there was no basis to interfere with his conclusion on the facts.
In a dissenting opinion, Abella J.A. agreed with the appropriate standard of review, but disagreed as to whether the standard had been met in this case. Her Ladyship disagreed with the second stage of the test from section 21(5) proposed by the Commissioner, holding it to be an unreasonable interpretative stretch based on the language of section 21(5) which was neither vague, ambiguous, nor contextually anomalous. She would have dismissed the appeal.
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