WHITE J.    (Orally)

Background

There is an application pending before the Divisional Court for judicial review of Order M-91, made by the Information and Privacy Commissioner/Ontario, dated March 2, 1993. In support of the application was filed an affidavit of Brenda Stokes Verworn, sworn April 27, 1993. Ms. Verworn is a solicitor employed by the applicant for judicial review, the Lincoln County Board of Education. In her affidavit, she deals with different matters and, in paragraphs 10, 11, 12 and 16, 17 and 19, she, in effect, argues the reasons supporting the position of the applicant, the Lincoln County Board of Education, as to why there was error on the part of the Information and Privacy Commissioner/Ontario in making Order M-91.

The grounds of the substantive application for judicial review are that the responding Commissioner erred in law in ordering the applicant to disclose portions of certain psychometric test material, containing the concerned student's answers, and scores, and the psychologist examiner's comments thereon, in that:

What lead to Order M-91, is that the parents of a student enrolled in one of the schools under the control of the Lincoln County Board of Education wanted information pertaining to the psychometric test scores of their child. An objection was made by the Board to the disclosure of such information and, in Order M-91, some of the information in the psychometric test scores was ordered to be made available to the parents of the student.

The Three Motions Before This Court:

I have before me today, sitting as a Motions judge in Divisional Court, three motions that have to do with the record that will go before the Divisional Court, when it considers on its merits the Lincoln County Board of Education's application, for judicial review of Order M-91 of the Commissioner.

The First Motion:

The first motion is one made by the Commissioner to strike out the affidavit of Brenda Stokes Verworn, on the basis that it presents arguments that were not before the Tribunal of first instance. The general principle is that the record that goes before the court hearing an application for judicial review should essentially be the material that was before the Commissioner. The case that supports that proposition is Broda v. Edmonton (City) (1989), 102 A.R. 255, (at 259 (Q.B.)).

The material that was before the Commissioner consisted of a series of letters between the Lincoln County Board of Education, the Information and Privacy Commissioner/Ontario and the parents of the student. I agree with counsel for the Commissioner that, at least in part, the affidavit of Brenda Stokes Verworn should be struck. Since paragraphs 10, 11, 12, 16, 17 and 19 are essentially argumentative, and really re-state, perhaps with elaboration, the positions and arguments contained in the correspondence that was before the Commissioner, I am of the opinion that those paragraphs should be excised from her affidavit, in the record that goes before the Divisional Court.

The Second Motion:

The next motion is brought by the Commissioner requesting that the Commissioner's record be sealed. All counsel consent to such an order being made. That is the type of order that is usually made; and, consequently, an order sealing the record will go.

Included in the Commissioner's motion to seal the record is the request that certain correspondence which had, by error and omission, been left out of the Commissioner's record of proceedings before him, be added to that record. The correspondence in question was correspondence between the Board of Education and the Commissioner; and, certainly, that correspondence should be added to the Commissioner's record. Of course, I have already indicated that the Commissioner's record should be sealed, so after the Commissioner's record has been so amended, it should be sealed.

The Third Motion:

There is one more motion, and that is a cross-motion brought by the Intervenor, the Association of Test Publishers. That motion seeks to have added to the record that is to go before the Divisional Court, correspondence between the Board of Education and the Commissioner, subsequent to the rendering of the Commissioner's Order M-91. Order M-91 contained the reasons of the Commissioner for making the order.

Counsel for the moving party on this cross-motion, takes the position that two letters found at tabs "B" and "C" of the cross-motion record, should be part of the record that goes before the Divisional Court or the substantive application. The first letter is one from the Board of Education to the Commissioner, dated March 26, 1993, acknowledging receipt of a copy of Order M-91, and requesting a reconsideration of the decision. The jurisprudence would indicate that, notwithstanding the absence of any specific provision in the relevant statute authorizing the Commissioner to reconsider his decision, that he does have the jurisdiction to do so. The letter from the Board of Education, dated March 26, 1993, to the Commissioner, sets out propositions, point-by-point, supporting, in the Board of Education's view, grounds for the Commissioner to reconsider, and vary, his order.

The second of these letters is a letter dated April 2, 1994, from the Commissioner to the Board answering, point-by-point, the propositions set out in the Board's letter and giving reasons for not accepting such propositions and arguments supporting them, for varying the decision which he incorporated in Order M-91.

I regard the letter of the Commissioner, dated April 2, 1993, to constitute supplementary reasons for decision to those stated by the Commissioner in Order M-91. Further, I am of the view that, in order to comprehend the supplementary reasons contained in the letter of the Commissioner, dated April 2, 1993, one also has to read the letter of the Board to the Commissioner, dated March 26, 1993.

Counsel for the Commissioner objects to the inclusion, in the record to go before the Divisional Court, the letter from the Board to the Commissioner dated March 26, 1993, and the letter of Commissioner to the Board, dated April 2, 1993, on the basis that they constitute fresh material and, in principle, only the material that was before the Commissioner, namely the correspondence between the parties preceding the decision of the Commissioner, should go before the Divisional Court. I agree in principle that only that which was before the Commissioner should form part of the record for judicial review, with one exception, and that exception is that, if the additional material falls within the category of supplementary reasons of the Commissioner for his decision, then that material should form part of the second going before the court charged with judicial review.

I find support for this view in the text book David Folkes, Administrative Law, 5th ed., Butterworths, dealing with the subject of certiorari for error on the face of the record. The substantive application pending before the Divisional Court is one of judicial review, but the particular appellation of that application is in common law terminology certiorari. The basis of the application is that the statutory tribunal, (the Commissioner), has erred in law on the face of the record. Professor Folkes, at p. 263, addresses what is the particular record of proceedings that one takes into consideration, when one is concerned whether that record contains error of law, on its face, at p. 263:

The case mentioned in the foregoing passage by Professor Folkes is R. v. Greater Birmingham Supplementary Benefit Appeal Tribunal, ex parte Khan, [1979] 3 All E.R. 759, a decision of the Queen's Bench Division, sitting as a Divisional Court, consisting of Chief Justice Lord Widfery, and Lords Justices Shaw, and Lloyd. A statutory tribunal had given short reasons for its decision, and then, the concerned person/solicitor wrote to the tribunal, setting out certain questions: and the tribunal wrote to the solicitor setting out certain reasons supporting its decision which had not been contained in its original short reasons; those supporting reasons purported to justify the tribunal's decision.

The issue that the Divisional Court dealt with, that is of concern to me, is whether the record before the Divisional Court should include the correspondence between the solicitor and the tribunal, subsequent to the making of the tribunal's decision. This is dealt with in the court's reasons at p. 762:

It is my view, therefore, that the cross-motion of the Intervenor, the Association of Test Publishers, should be allowed and the post-decision correspondence, to which I have alluded, should be part of the record that goes before the Divisional Court, on the substantive motion for judicial review of the Commissioner's order.

This is not a matter for costs in respect of all three motions (including a cross-motion) before this court.

WHITE J.

LINCOLN COUNTY BOARD OF EDUCATION v. INFORMATION AND PRIVACY COMMISSION/ONTARIO

Divisional Court File No. 289/93

Endorsement of Southey, J.
September 12. 1994

I am satisfied that the members of this Association of Test Publishers ("ATP") have a direct financial interest in the outcome of the judicial review proceedings brought by the Lincoln County Board. The utility and cost of their tests may be significantly affected. The outcome is also one of public importance. Consistent with the decision of this Court adding a local industry association as an intervenor in Temagami Wilderness Society v. Ontario (Minister of Environment) (1989), 33 O.A.C. 356, an order will go granting leave to ATP to intervene as an added party, but without the right to file any evidence on the application (see Keeprite (1980), 114 D.L.R. (3d) 162 at 170.)

ATP may deliver a factum within 30 days after service of the factum. The time for delivering the factum of the Commissioner is extended for 30 days after delivery of the ATP factum.

Counsel for ATP may have access to the sealed material on the same basis respecting confidentiality as counsel for the Board.

No order as to costs.

Southey, J.

ENDORSEMENT

Application is allowed and the decision of the Assistant Commissioner is set aside. No order as to costs.

REASONS

This is an application for judicial review of an order by the Assistant Information and Privacy Commissioner (the "Commissioner") under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56 (the "Act").

The requester sought disclosure of information relating to a standard intelligence test administered to one particular student. Specifically, disclosure was requested of fourteen pages from an answer booklet which contained questions, suggested correct answers, student's answers and examiner's comments.

Pursuant to s.42(13) of the Act, the Commissioner, by notice, gave the parties an opportunity to make representations. In the notice, the Commissioner described the record in issue and stated that the issues were whether the discretionary exemption in s.11(h) or the mandatory exemption in s.10 applied to that record. The requester, the Board, and another party all made representations. The requester narrowed the scope of the request to include only the student's answers and scores and the examiner's comments. The Commissioner therefore deleted from the record under consideration the questions and the suggested answers. The Board and the other affected party were not aware of the deletion and had made their representations on the basis of the whole record in issue being disclosed. (The requester had earlier informed the Board, but not the other party, that he would be satisfied if he had access to the questions under Board supervision provided he received disclosure of the answers). It should be noted that some extraneous wording was not deleted which the intervener submitted would disclose part of the structure of the test.

The Commissioner then considered the applicability of the exemption in s.11(h). He considered the amended record which now contained only the student's answers, her score and the examiner's comments. He found that the amended record did not contain "questions that are to be used in an examination or test", and concluded that s.11(h) did not apply.

Turning to s.10, the Commissioner said:

He accordingly found that the exemption did not apply.

Both s.10 and s.11(h) empower the Board to refuse to disclose a record. In this case the record was 14 pages of a booklet. Section 4(2) permits a head to disclose as much of a record "as can reasonably be severed, without disclosing the information that falls under one of the exemptions". In this case the information was questions (s.11(h)), and trade secrets (s.10). The deletion of part of the record raised a new issue as to whether the remaining part disclosed exempt information.

With respect, we consider that the Commissioner approached the issues too narrowly. He looked at the amended record and determined that it contained neither questions nor trade secrets and accordingly there was no exemption. In our view he should first have considered whether the record (the booklet) contained questions (s.11(h)) or revealed trade secrets (s.l0). If he found that it did, he should have gone on to consider whether disclosure of the amended record disclosed information that fell under the exemptions (s.4(2)). In our opinion the Commissioner failed to consider relevant and important issues. His decision was patently unreasonable and cannot stand (see Oakwood Development Ltd. v. Rural Municipality of St. Francois Xavier (1985), 20 D.L.R. (4th) 641 (S.C.C.)).

The order of the Commissioner is set aside. The requester did not appear in these proceedings. In the circumstances we consider it appropriate not to remit the matter back to the Commissioner.

The process under the Act requires the maintenance of confidentiality throughout. This puts considerable administrative and other burdens on the Commissioner. His task is not an enviable one. He cannot hold a hearing with all interested parties present. He cannot provide each party with the representations of the others. The language of his decision must be restricted to preserve confidentiality. While it is not a basis for the decision to set his order aside, we are of the view that in this case the Commissioner ought to have invited representations on the issue that emerged when the record was amended as a result of the representations of the requester. The other parties should have been asked to make representations as to whether the answers, scores and comments alone would have disclosed exempt information. That was the issue that was joined following the first round of representations.

It is recognized that asking for further representations is cumbersome, costly and delays the process. The person conducting the inquiry must exercise judgment to keep the process within reasonable and workable limits. In a proper case, soliciting further representations is justified because of the importance of the disclosure issues that are at stake. In this case the Board and the other interested party were not given an opportunity to make representations on a crucial issue. It would have been too much to expect them to anticipate the possibility of deletions especially where the Commissioner has no specific power to sever.

McMURTRY C.J.O.C.
SAUNDERS
WINKLER JJ.

July 5, 1995