General

• Where the Commission has issued an Order indicating that an exemption claimed by an institution does not apply, the institution may charge fees under the Act to the requester for access to those records. The Act is based on a user-pay principle and there is a mandatory requirement to charges fees [see s.45(1) MFIPPA \ s.57(1) FIPPA]. In addition, from the perspective of the access system as a whole, a decision that a government organization must issue a fee estimate in situations where it reasonably believes that the records to which the request will be withheld from disclosure would not facilitate the efficient processing of access requests. As a result, where an institution has decided not to disclose records that are subject to an access request and the Commissioner's office subsequently orders that these records be disclosed, the institution has the right to require that the appellant pay the requisite fee before releasing the records. In these situations, the institution would not be required to disclose the records until the payment was received or the reasonableness of the amount charged is resolved in a subsequent appeal. (Order M-372)

• Where the institution has not made any submissions in respect of the exemptions that may apply to records in an appeal, the Commission may order the institution to disclose the records with severances made regarding the applicable mandatory exemptions. (Orders #P-304, M-374)

• The introduction by the head of new or different grounds for refusing access to records at the appeal stage will be permitted. It is preferable, however, to set out the grounds in full, prior to an appeal. (Orders #P-15, P-22)

• The institution may be asked to provide an affidavit outlining the steps it took to locate the requested records. (Orders #P-58, P-59)

• The compliance auditor can conduct a review of the correspondence tracking procedures followed in the Minister's office as a result of an appeal. (Order #P-58)

• In keeping with the policy of the Act, the Commissioner may consider facts that have arisen subsequent to the head's decision. The institution is also free to change a decision in light of subsequent circumstances. All relevant facts must be considered. (Order #P-67)

• Where an institution failed to provide representations, the Commissioner may order the institution to respond by affidavit within 20 days. (Order #P-92)

• Where an institution fails to make submissions, the Commission on an appeal will consider any relevant information that might be contained in the records themselves. (Order #M-77)

• The Commissioner may make an interim Order. (Order #P-86)

• In circumstances yet to be fully established, the Commissioner has the jurisdiction to determine a Charter challenge to the Act during an appeal. (Order #P-254, P-301)

• Inherent in the powers granted to the Commissioner and his delegates, is the power to determine questions of bias on the part of heads of institutions. In its capacity as an administrative tribunal with certain legislative functions, the Commissioner is required to ensure that the rules of natural justice govern the access to information regime in Ontario. (Order #P-1115)

• The Commissioner may defer the final determination of an appeal until he or she receives further submissions. (Order #P-92)

• The Commission may reopen an Order and reconsider the application of exemptions where, through oversight, all affected parties had not had an opportunity to make submissions. (Order #P-435)

• The Commissioner may order an institution to provide access without a fee charge where the institution could not justify a time extension. (Order #P-855)

• The Commission found that where it had ordered the head to seek the consent of the Executive Council regarding access to a Cabinet record, it had made a jurisdictional error and reconsidered the order. (Order #P-1390)

• The fact that the Commission has ruled on a previous appeal does not mean the issue cannot be discussed again. The doctrine of issue estoppel does not apply to appeals under the Act. If an individual continuously requests the same or similar information, the institution could decide that the request was frivolous or vexatious. In addition, the Commission may dismiss an appeal if it involves the same parties, issues and records previously considered. (Order #P-1392)

• The Commission is not bound by previous decisions and is entitled to depart from earlier interpretations of the Act. (Order #P-1551)

• The Commission reopened an Order and reconsidered the application of an exemption which, through oversight, was not reflected in the wording of the order. The requester had not been given an opportunity to make submissions on the application of s.49(b). (Order #P-1594r)

• Where a decision did not require the exercise of discretion or an evaluation of the merits of the request by the delegated head, the question of potential conflict of interest as a result of bias on the part of the person who rendered the decision was diminished. (Order #M-1091)

(a.)

• The possession by a requester of copies of papers from Probate Court indicating that the requester was required to petition the court for reimbursement of costs for a deceased next of kin's funeral was insufficient evidence that the requester was a personal representative.(Order #M-1092) Where the will had not been probated and there was no intention to do so, a notarized copy of the deceased individual's will in which the requester is named as the Executor Trustee was not sufficient evidence to find the requester was the personal representative under the Act, and had the requisite authority to act under this section.(Order #M-1410)

 

Application for Reconsideration

• A tribunal may reconsider a decision it made and its flexibility to do so is greater than that of a court. See Chandler v. Assn. of Architects (Alta.) (1989), 40 Admin.L.R. 128 (SCC), Grillas v. Minister of Manpower and Immigration (1972), SCR 577 (SCC), Severud v. Canada (Employment and Immigration Commission) (1991), 47 Admin.L.R. 190 (FCA), Re City of Kingston and Mining and Lands Commissioner et al. (1977), 18 OR (2d) 166 (Div.Ct.)

• The Information and Privacy Commission has issued a "Policy Statement" concerning when reconsideration of a decision may be made. It states as follows: There is no express statutory provision in the Acts which permits the Office of the Information and Privacy Commissioner (IPC) to reconsider an order. However, it is the IPC policy that decision makers may reconsider orders in exceptional circumstances. The circumstances in which an order may be reconsidered are summarized in this policy statement. When an application for reconsideration of an order is received, the order should be reconsidered only where: 1. there is fundamental defect in the adjudication process (for example, lack of procedural fairness) or some other jurisdictional defect in the order, or; 2. there is a typographical or other clerical error in the order which has a bearing on the decision or where the order does not express the manifest intention of the decision maker. An order should not be reconsidered simply on the basis that new evidence is provided, whether or not that evidence was obtained at the time of the inquiry.In this case, the Commission did reconsider an earlier decision in P-612. (Order #P-892)

• Third parties were granted reconsideration where they were not originally notified. Consequently a new Notice of Inquiry was sent to the institution and parties involved for representations. (Order #M-510)

• The Commission's policy on reconsideration is consistent with the leading Supreme Court of Canada decision on this topic (Chandler vs Alta Architects). (Order #M-938)

• The Act does not permit the Commission to reopen an inquiry based solely on the existence of new evidence, regardless of whether or not the evidence was available at the time of the inquiry. (Order #M-938)

• Incorrect conclusion about the applicability of s.65(6)FIPPA/52(3) MFIPPA to records is grounds for reconsideration. (Order #P-1326)

• The fact that a third party company was neither informed nor given the opportunity to make representations regarding issues in an appeal is a fundamental defect in the adjudication process, namely a lack of procedural fairness. Accordingly, the Commission reconsidered its decision of a previous order. (Order #M-972)

• Because the Commission failed to address the possible application of each exemption claimed by the institution to each record or part of a record, there was a fundamental defect in the adjudication process and the Order was reconsidered. (Order #P-1497r, P-1516)

• The Commission reconsidered an Order because the original decision was based on a incorrect fact situation. The institution responded to the requester's amended request during the appeal process without informing the Commission. (Order #M-1051r)

• In this case, subsequent to issuing the original order the adjudicator was made aware that a document containing the names and addresses of witnesses was in the possession of the applicant. The adjudicator then determined that the entire basis for his decision in Order PO-1757 was premised on incomplete information and no longer correct. The adjudicator rescinded the original order and replaced it with PO-1762. (Order #PO-1757)and PO-1762)

• The IPC decided to reconsider its order that the Public Guardian and Trustee (the PGT) disclose the Names, Addresses, Last Occupation, Place and Date of Death of deceased individuals whose estates it was administering despite the fact that the reconsideration request was based only on "new evidence". The IPC decided to reconsider its order because "the interests of affected persons (deceased individuals and potential heirs) are affected by the appeal and the issues raised in the PGT's reconsideration request, yet in the circumstances these individuals cannot be notified."(Order # PO-1790-R)