The judgment of the Court was delivered by

[1] SAUNDERS J. (Orally):— The nature of the process under review [the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M-56] requires the maintenance of confidentiality.There can be no hearing in the usual sense and the statute limits access to representations (s. 41(13)).In considering the procedure adopted by the Commissioner, this court should accord curial deference in light of the difficult circumstances faced by the Commissioner subject, of course, to the overriding concerns of procedural fairness.

[2] In our view, the process should not preclude the Commissioner and members of his staff from discussing submissions with the parties, including referring to earlier decisions that have been made by the Commissioner.The letter of January 28, 1992 did no more, in substance, than try to ascertain whether the requestors were going to make submissions and draw to their attention, the Town of Listowel decision by the Commissioner as a relevant case.In the end, the Commissioner followed that decision in this case by refusing to disclose the salary.In effect, he applied Listowel in favour of the applicant Municipality.If, instead, the Commissioner had considered not following Listowel, then it would have been appropriate, in accordance with his announced policy, to have referred the decision to the Municipality for its comments.

[3] We, therefore, do not consider it to have been necessary for the Commissioner, in the interest of natural justice, to have sent a copy of the letter of January 28, 1992 to the Municipality or to have referred it to the Listowel case.Further, it was in the discretion of the Commissioner to extend the time that he had previously stipulated for making submissions by the requestors.

[4] The Municipality was specifically given an opportunity to address the claim that the document was relevant to a fair determination of the requestors' rights and, in fact, did so.In those circumstances, it is our view that the Commissioner was under no obligation, in the interest of fairness, to refer the submissions received from the requestors to the extent that he might have considered them relevant to the issue raised by s. 14(2)(d).He had already received the submissions from the Municipality on that issue.In any event, a reading of the decision of the Commissioner, indicates clearly that he, in no way, relied on s. 14(2)(d) in ordering disclosure.He reviewed s. 14(2), as he was required to do, to ascertain if there was anything in that subsection that might lead to a conclusion that there was any unjustified invasion of personal privacy.Section 14(2)(d) was irrelevant to that review as it sets out a factor in favour of disclosure.

[5] So far as the substance of the decision is concerned, we are satisfied that, in interpreting the statute and applying it to the situation before him, the Commissioner acted reasonably and there is no basis for this court to intervene.

[6] Even if we had found an irregularity in the process or an error in the application of the statute, we would have been inclined to exercise our discretion and dismiss the application because of the surrounding circumstances.

[7] The application is therefore dismissed.

HARTT J.
SAUNDERS J.
MOLDAVER J.

ONTARIO COURT OF JUSTICE (GENERAL DIVISION)

DIVISIONAL COURT

ENDORSEMENT

Order to go:

REASONS:

The issue on this interim application is the extent of access to a sealed record that should be granted to counsel for the purpose of preparing for the main application.

The main application is brought by the Corporation of the Town of Gravenhurst (the "Municipality") for judicial review of an order for disclosure made by the Information and Privacy Commissioner (the "Commissioner"). The respondent solicitors, Weir & Foulds (the "Solicitors") support the disclosure order.

The Solicitors requested information from the Municipality which it refused to disclose. This resulted in the order under review. The Solicitors represent an individual client (the "Client") who has been engaged in various proceedings with the Municipality arising out of his loss of office. Currently, the Client is applying for judicial review of a decision by the Municipality and has also brought a civil action in the nature of a wrongful dismissal claim. In all these proceedings, he has been, and continues to be, represented by the Solicitors.

Pursuant to s.137(2) of the Courts of Justice Act, R.S.O. 1990, c.C-43, the record of the Commission is to be sealed and not form part of the public record. This is because public disclosure would predetermine the judicial review and render it nugatory.

A problem arises because the Solicitors need access to the sealed portions of the record to prepare for the argument on the judicial review application. The Municipality is familiar with most of the record but the Solicitors are not. In several previous cases, this problem has been solved by permitting access to counsel on the undertaking that confidentiality will be maintained even with respect to the client. I pause to remark that such an undertaking has the potential of placing counsel in a difficult, if not intolerable, position.

The Solicitors say that they need access for only this application and to only a limited part of the record (one document). They do not intend to use the information for any other purpose, including in any of the other proceedings in which the Client is involved with the Municipality. They are aware that they might unexpectedly come across something that might be useful to the Client. They have discussed this with the Client. They say he is prepared for such an eventuality but has nevertheless instructed them not to disclose any of the information and to give the required undertaking.

The contents of the document are unknown. It is uncertain whether they would be otherwise available to the Solicitors through the operation of s.51 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M-56. I was not invited to inspect the documents. I doubt it would have been helpful if I had done so. With my limited knowledge of the dispute, it is not for me to pass on the significance of the documents without the assistance of counsel. The Municipality is not prepared to consent to access. I must assume the possibility that the documents would contain information that would be of assistance to the Client in the other proceedings. If use were made of that information, the whole purpose of the judicial review application would be frustrated.

The Solicitors say they would honour their undertaking and I have no doubt that they would make their very best efforts to do so. The difficulty is that circumstances might render compliance impossible. The Solicitors could not disabuse their minds of any significant information during the subsequent proceedings. They could not compartmentalize their minds so as to screen out what has been disclosed by the access and what has been acquired elsewhere (see MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 1261). Furthermore, there would remain the perception of a possibility of non-compliance with the undertaking.

I, reluctantly, conclude that if the Solicitors want access they must retain independent counsel who must provide the undertaking in the form proposed. Such counsel, or another independent counsel, must thereafter represent the Solicitors on this judicial review application. A balance must be struck between the need to preserve the integrity of the privacy legislation and the interests of the Client. The Client is deprived of counsel of his choice and will be put to some additional expense. However, in the context of the dispute between the parties, the additional costs ought not to be great. I am of the opinion that the inconvenience to the client is outweighed by the need to preserve the confidentiality of the material until a decision is made by this court.

My reluctance is based not only on the inconvenience to the Client but also on the opportunity it gives to a party in the position of the Municipality to force a change of counsel in almost every case. It is not possible to assess whether the opposition is well founded. That will only occur when the main application is determined. If the engagement of a new counsel turns out to have been unnecessary, a client may be compensated in costs.

Released: June 1, 1993

SAUNDERS