Whether a child-client’s litigation records with the Children’s Lawyer for Ontario are subject to a parent’s freedom of information request

Administrative law – Decisions reviewed – Privacy Commissioner – Custody and control – Judicial review – Appeals – Standard of review – Reasonableness – Correctness – Freedom of information and protection of privacy – Disclosure of records – Public body – Solicitor-client privilege

Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), [2018] O.J. No. 3249, 2018 ONCA 559. Ontario Court of Appeal, June 18, 2018, P.S. Rouleau, M.L. Benotto and L.B. Roberts JJ.A.

Children were the subject of a custody and access dispute between their parents.

In the course of that dispute, the Children’s Lawyer of Ontario (the “Children’s Lawyer”) was appointed to conduct an investigation, report, and make recommendations pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). The Children’s Lawyer provided legal representation to the children.

Following the resolution of the underlying dispute, the father made a freedom of information request for records in the Children’s Lawyer’s litigation files regarding the children, including privileged and non-privileged reports, reports filed with the court, and notes and documents regarding the duties of the lawyers acting for the Children’s Lawyer.

The Ministry of Attorney General took the position that the applicable freedom of information legislation, the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, did not apply to private litigation files involving the provision of services to children, the records were not in the custody or control of the Ministry of Attorney General, and denied the request.

On appeal, the Information and Privacy Commissioner (“IPC”) determined the requested records were within the possession and control of the Ministry of Attorney General, and requested the Ministry of Attorney General provide an access decision to the applicant father.

On judicial review to the Divisional Court, the Court upheld the IPC’s decision on the basis it was reasonable to conclude the records were within the custody or control of the Ministry of Attorney General, and confidentiality concerns could be addressed through statutory exceptions, for example, for solicitor-client privilege.

On appeal to the Court of Appeal, the Court allowed the appeal, finding the Children’s Lawyer does and must operate separately from the Ministry of Attorney General, it was an error to find the Children’s Lawyer’s litigation files were within the custody or control of the Ministry of Attorney General as it was not part of that institution under the applicable legislation, and to allow a parent to have access to a child’s records would negatively impact the child’s privacy interest and be contrary to the best interests of the child.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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