The petitioner, Liquor Control Board of Ontario, sought judicial review of an Information and Privacy Commissioner of Ontario order that it cease its practice of collecting personal information in relation to the sale of alcohol to unlicensed clubs

Administrative law – Decisions of administrative tribunals – Liquor Licensing Board – Freedom of information and protection of privacy – Collection of records – Public body – Crown agents – Judicial review – Procedural requirements and fairness

Ontario (Liquor Control Board) v. Vin de Garde Wine Club, [2013] O.J. No. 5788, 2013 ONSC 5854, Ontario Superior Court of Justice Divisional Court , November 5, 2013, D.R. Aston, S.G. Himel and M.T. Linhares de Sousa JJ.

The Liquor Control Board of Ontario (“LCBO”) is a Crown agency and the sole importer of liquor into Ontario with authority to control the sale, transport, and delivery of liquor within the province. It reports to the Ministry of Finance. The LCBO sells liquor through its private ordering department. One aspect of that program is the sale of alcohol to private clubs. These clubs are not licensed and have no special status, entitlements, or recognition under the applicable legislation. Private clubs may make special orders on behalf of club members if they register with the LCBO and, once registered, follow the LCBO’s procedures and guidelines.

The respondent, Vin de Garde, a private club, registered with the LCBO in 2004. From 2004 to 2012, it stated that club members were not asked to provide personal information to the LCBO when the club submitted special orders. In 2012, the LCBO refused to process Vin de Garde’s special orders until it disclosed personal information of its members. Vin de Garde filed a privacy complaint with the Information and Privacy Commissioner of Ontario (“IPC”).

The IPC investigated and ruled that the LCBO had not established that the collection of personal information relating to private club purchases was necessary for the operation and management of the LCBO’s private ordering operations. The IPC ordered the LCBO to cease collecting personal information when special orders were made through clubs on members’ behalf and ordered the LCBO to destroy all personal information previously collected from that practice. The order, made under s. 59(b) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”), represented only the second time the IPC had made such an order since 1987. The LCBO applied for a judicial review to quash the IPC’s order.

On judicial review, the LCBO, with the support of the Ministry of Finance, argued that the IPC failed to comply with its duty of procedural fairness by failing to advise the LCBO and the Ministry that it was contemplating a remedy under s. 59(b) of FIPPA. This effectively deprived the LCBO and the Ministry of the opportunity to be heard on this point, an important aspect given the unusual nature of such an order.

The court held the IPC breached its duty of fairness, and remitted the matter for reconsideration. The court held the duty of procedural fairness applies to a public authority making an administration decision that affects the rights, privileges, or interests of an individual. A Crown corporation may be a holder of procedural rights, privileges, or interests protected by the duty of fairness. The duty of fairness includes a party’s right to adequate notice regarding the administrative proceeding they are involved in. Adequate notice includes knowing the consequences that may flow from an administrative proceeding. The LCBO was given an opportunity to make representations to the IPC’s investigative staff concerning the privacy complaint filed on behalf of Vin de Garde, but was not afforded a hearing regarding the s. 59 order. The Court held adequate notice of the nature of an investigation in these circumstances included possible consequences in order to ensure meaningful participation in the process. It held the IPC should have given the LCBO notice that it was considering an order under s. 59(b) as a potential remedy. This finding was supported by the wording of s. 59(b), which requires an institution to be heard before an order is issued, and by the fact that such an order is almost unprecedented as a remedy in the context of IPC privacy complaint proceedings. The court allowed the petition and remitted the matter to the IPC for reconsideration.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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