B. WRIGHT J.:— Under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ("Act")a journalist, in October, 1996, submitted a request to the Ministry of Finance for access to, "all documents on the economic, social and Ontario budget impacts of Quebec independence compiled since Jan. 1, 1995".The Ministry identified 11 records that responded to the request but denied access to them relying on exemptions found in ss. 13(1), 15(a) and 18(1)(d).

On May 27, 1997, the respondent, John Higgins, an Inquiry Officer under the Act granted Order P-1398 ordering the Ministry to disclose Records 8, 9 and 11 in their entirety, and parts of Records 1, 2, 3, 4, 5, 6 and 7.The Ministry has disclosed Record 8 but refused to disclose the remaining Records. The Ministry applies for Judicial Review of that Order.

The Inquiry Officer first determined whether the Records came within exemptions set out in ss. 13(1), 15(a) and 18(1)(d) of the Act.

Section 13(1) Advice or Recommendations

The section states:

The Inquiry Officer decided:

Section 15(a) Relations With Other Governments

The section reads:

With respect to Records 1-7 and Record 9, the Inquiry Officer decided they were exempt under s. 15(a) because, "... if the records were disclosed, there would be a reasonable expectation of prejudice to intergovernmental relations between Ontario and Quebec".He further decided that Records 10 and 11 were not exempt under s. 15(a).

Section 18(1)(d) Economic or Other Interests

The section states:

The Inquiry Officer found that all the Records were exempt under s. 18(1)(d).In the event of Quebec independence or a "Yes" victory in a referendum on that subject he held that, "... if the records were disclosed, there would be a reason able expectation of injury to the ability of the Government of Ontario to manage the economy of Ontario".

In summary, portions of Records 1, 6 and 7 and Record 10 in its entirety are exempt under s. 13(1).Records 1-7 and Record 9 are exempt under s. 15(a).All of the Records are exempt under s. 18(1)(d).

The Inquiry Officer turned next to a consideration of the "public interest override" in s. 23 which states:

The Inquiry Officer concludes that there is a "compelling public interest" in disclosure of the Records.He stated:

The gist of his conclusion is:for the past two decades there has been public debate on Quebec independence which indicates a strong interest or attention by the public in the subject; and, therefore, the compelling public interest relates to the need for informed public discussion and the disclosure of the Records, "... would introduce information into the public domain which would enhance the ability of the public to formulate and express opinions about the possibility of Quebec independence, and to make political choices in that regard".

Having decided that the Records should be disclosed because of a compelling public interest, the Inquiry Officer turned his mind to the question whether a compelling public interest in the disclosure of the Records "clearly outweighs" the purpose of the exemptions.

With respect to the s.13(1) exemption, the Inquiry Officer said,

Considering the s.15(a) exemption, the Inquiry Officer decided:

When he applied the s. 18(1)(d) exemption the Inquiry Officer decided that parts of the Records which he highlighted were exempt from disclosure because public disclosure did not clearly outweigh the purpose of the exemption.As a result, parts of Records 1, 2, 3, 4, 5, 6 and 7 and Record 10 in its entirety are exempt from disclosure. His reasoning was:

Standard of Review

In Right to Life Association v. Metropolitan Toronto District Health Commission (1991), 86 D.L.R. (4th) 441 (Ont. Div. Ct.), a steering committee submitted to the health council a proposal for the creation of a women's community health centre.This court upheld the Commissioner's decision refusing to disclose the names of the members of the steering committee.At p.444 the court stated:

With specific reference to s. 23 of the Act the court commented:

I conclude from this case that the Commissioner must give an interpretation of the Act which can be rationally supported and give to a section of the Act a meaning that was intended by the section, otherwise, the court would find the interpretation to be incorrect.

In John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Div. Ct.), the majority decision of this court held that the Commissioner's decisions ought to be accorded "a strong measure of curial deference".Campbell J., writing for the majority, said:

In this case a judge had acquitted an accused and stated that the four police officers involved in the case should be charged with fabricating evidence.A report of the Ontario Provincial Police exonerated the four police officers. The judge requested a copy of the report.The commissioner under the Act directed that the report be disclosed.On an application for Judicial Review this court quashed the commissioner's decision.

Despite the court's statement that the commissioner's decision should be accorded "a strong measure of curial deference", the court in a majority decision held that the commissioner misinterpreted the Act.At pp. 783-784, Campbell J., for the majority, stated:

While the commissioner had jurisdiction to determine whether the report should be disclosed, he misapplied sections of the Act to rebut the presumption of an unjustified invasion of personal privacy.Simply put, the commissioner misinterpreted the Act and gave an interpretation of the Act which could not be rationally supported, to use the language in Right to Life.

Neither of the above decisions enunciate a standard of review of "correctness" or "patently unreasonable".

However, our Court of Appeal has ruled that decisions made under the Act will be held to a standard of correctness.In Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.), the issue was whether certain records came within s. 10(1) of the Act which reads:

The assistant commissioner decided that records in the possession of individual members of the Judicial Appointments Advisory Committee were records in the control of the Ministry of the Attorney General.This court dismissed an application to quash that decision.Goudge J.A., in quashing the decision, commented on the standard of review at p. 618:

There may be some question as to what was meant by the term "jurisdiction-limiting".There is no question that if the records did not come within s. 10(1) the assistant commissioner lacked jurisdiction to deal with them under the Act. However, the assistant commissioner had jurisdiction to determine whether the records came within s. 10.He had to make the correct decision.Since he did not, his decision was quashed.

Of greater importance is the comment that, "... the test found in s. 10(1), namely, `custody or control', is not one requiring a specialized expertise to interpret".In my view there is a parallel between s. 10(1) and s. 23 of the Act.In my view an Inquiry Officer must correctly determine the test for a s. 23 override; this function requires no special expertise to interpret.

This court made a somewhat contrary finding in a short endorsement in Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636, December 3, 1996, (Div. Ct.).The endorsement states:

The view that the interpretation and application of the public interest override in s. 23 of the Act, "lie at the heart of the Commissioner's specialized expertise ..." would seem to me to be overly broad and generous.An Inquiry Officer has no special expertise to interpret the public override test.

In order to get the flavour of the decision being upheld by this court it is necessary to go to the decision of Assistant Commissioner Mitchinson, Order P-1190, May 27, 1996. He ordered that the most recent peer evaluation report for each of the five nuclear plants operated by Hydro be disclosed.Dealing with the "compelling public interest" in disclosure, he stated at p. 7:

He relied on a comment made by Commissioner Tom Wright in Order P-270.That order concerned the disclosure of agendas and minutes of the Senior Ontario Hydro/Atomic Energy of Canada Limited Technical Information Committee.At p. 7 he quoted from Commissioner Wright:

With respect to whether the compelling public interest in disclosure "clearly outweighs" the purpose for exemption he commented at p. 8:

Although I question the one statement of this court, as noted above, I agree with the decision of the court in upholding the decision of Assistant Commissioner Mitchinson. The issue involved an important matter of public safety. There was a rational basis for the decision.

In my view the same cannot be said for the Inquiry Officer's decision in this case.There is no rational basis to support his decision that there is a compelling public interest in the disclosure of the Records which clearly outweighs the purpose of the exemptions.Certainly there was no rational basis expressed by him in his decision, but rather an unsupported conclusion.

The stark contrast between the two decisions points up the lack of any specialized expertise to interpret and apply s. 23 of the Act.Because the Inquiry Officer has no specialized expertise to interpret s. 23, the standard of review is correctness.

I now turn to a discussion of the Inquiry Officer's decision.

Compelling Public Interest

The word "compelling" has various dictionary meanings. I suggest that in the s. 23 context the plain meaning is:the public needs (in the sense it requires) to have the information in order to take some action or to use the information for their benefit.It is puzzling that the Inquiry Officer would use a secondary meaning of "compelling" as set forth in the Concise Oxford Dictionary, namely "rousing strong interest or attention or feeling of admiration" without justifying such use.That this is a secondary meaning is clearly illustrated when one reviews the definitions in the more definitive Oxford English Dictionary or The Shorter Oxford Dictionary.

In a decision rendered December 5, 1989, (Order 128), Commissioner Sydney Linden held that the need for public debate, in and of itself, was not sufficient to outweigh the purpose of an exemption under s. 13(1) (advice and recommendations).At pp. 6 and 7 of his decision he stated:

In that case the request concerned information exchanged between the Ministry of Labour and the Workers' Compensation Board on the subject of Bill 162.At p. 4 of the decision the Commissioner sets out the purpose of s. 13(1):

The Commissioner concluded:

With respect to what the public would do with the information in the present case, the Inquiry Officer said that the information, "... would enhance the ability of the public to formulate and express opinions about the possibility of Quebec independence, and to make political choices in that regard".

However, the public in Ontario have had no political choices to make on Quebec independence as provided for in the last two referendums.It was only the public resident in Quebec who had the political choice to vote either "Yes" or "No" to "Quebec independence".

How can there be a compelling public interest in disclosure of government information where the Ontario public has no real power to do anything with the information except to continue to discuss and debate the issues?There is no evidence that the general public needs or even wants the information contained in the Records.The public may have an interest in the question of Quebec independence but, there is no "compelling" public interest in the disclosure of these Records when "compelling" is given its more appropriate meaning.

In my view the Inquiry Officer has failed to provide sufficient reasoning to support his decision that there is a "compelling" public interest in the disclosure of the Records.

But, even if it is assumed that there is a compelling public interest in disclosure, has the Inquiry Officer shown that the compelling public interest in disclosure "clearly outweighs" the purpose of the exemptions?

"Clearly Outweighs"

A close reading of the Inquiry Officer's decision reveals that he places significantly more emphasis on the "compelling public interest" and, in my view, does not properly balance that interest with the purpose of the exemptions and, gives little weight to the word "clearly" in "clearly outweighs".

For example, in dealing with the s. 13(1) exemption he said, "Moreover, it is clear that the formulation of government policy on this subject will proceed, as necessary, even if the records at issue are disclosed".As true as that statement may be, if the current Records are to be disclosed, then the continuing formulation of government policy on Quebec independence will fall into the same category and be required to be disclosed.The Inquiry Officer did not consider whether such disclosure might place a damper on the advice and recommendations sought by government including research and papers prepared.The government may be circumspect in the type of information it requests and perhaps leery of having too much information produced in written form because of the possibility that the information would have to be disclosed. One may also question that a logical extension of the Inquiry Officer's reasoning would be that to overcome the public interest override, the government would have to demonstrate that disclosure would compel it to cease seeking advice.

The Inquiry Officer made a similar statement in relation to the s. 15(a) exemption.He stated, "It is also clear that the contacts between the governments of Quebec and Ontario will continue, of necessity, even if the records are disclosed". Again, as true as that statement may be, the Inquiry Officer did not address the distinct disadvantage to Ontario in its future contacts and negotiations with Quebec if Ontario's confidential information is disclosed.The Quebec government would have knowledge of Ontario's positions on various issues but Ontario would not have similar information from Quebec. The Inquiry Officer has failed to consider the possible prejudice to the conduct of intergovernmental relations by the Government of Ontario which is the very purpose of the s. 15(a) exemption.Neither has the Inquiry Officer considered the broader implications of the information being disseminated across Canada.It can be assumed that the Government of Ontario and the governments of the other provinces of Canada, along with the Federal Government, do not wish to see Quebec separate from Canada.In fact, the Provincial and Federal Governments appear to be discussing ways to keep Quebec in Canada without the necessity of future referendums.It can also be assumed that these discussions are very sensitive with research and documents being prepared by the Provincial and Federal Governments.

Should all that information which finds its way into Ontario material be made public?The Inquiry Officer has given little thought to the political repercussions of his decision. If the requested information is disclosed to the media, the Ontario Government views would be disseminated across Canada.How would that information be used in Quebec by either the "Yes" or "No" sides?How would that information be used by other Provincial Governments and the Federal Government?Could the information harm the seeking of a consensus between governments outside of Quebec to find a way to keep Quebec in Canada?

As for the s. 18(1)(d) exemption, the Inquiry Officer appears to have concluded that Ontario's ability to manage the economy would be impaired by the revelation of some of the material.However, as to the rest, he concludes without explanation that some should be disclosed without seeing if the balance falls clearly in favour of a compelling public interest.

The Act clearly establishes that certain confidential and sensitive information is exempt from disclosure, unless there is a compelling public interest in disclosure which clearly outweighs the purpose for the exemptions.

In reference to Records 1-7 and Record 9 the Inquiry Officer stated:

Dealing with all of the Records he said:

I have difficulty rationalizing those strong statements for exempting the Records from disclosure with his weak and unconvincing reasons which he provides for his decision that the compelling public interest "clearly outweighs" the purpose for the exemptions.In my view the Inquiry Officer has failed to provide appropriate reasons why the compelling public interest "clearly outweighs" the purpose of the exemptions.

The Inquiry Officer was clearly wrong in ordering disclosure.If the standard of review is not correctness, on the facts of this case the decision is patently unreasonable. There is a public interest in the general topic of Quebec independence but there is no "compelling public interest" which warrants disclosure of the information contained in these government records.Furthermore, there is no compelling public interest in disclosure which "clearly outweighs" the purpose of the exemptions.Order P-1398 made May 27, 1997 is quashed without costs.

B. WRIGHT J.
FARLEY J.

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REASONS FOR JUDGEMENT

MacDOUGALL, J. (dissenting):—

BACKGROUND FACTS:

The Minister of Finance brings this Application to quash the order of Inquiry Officer John Higgins ("Inquiry Officer") made May 27th, 1997 ("the Order") under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("the Act").

On October 3rd, 1996 the Requester, a journalist, submitted a request to the Applicant Ministry of Finance for access to "all documents on the economic, social and Ontario budget impacts of Quebec independence compiled since January 1st, 1995".The Ministry identified 11 records (referred to individually as records number 1 through 11) that responded to the request.The Ministry denied access to these records relying on the exemptions contained in sections 13(1) (advice to government), 15(a) (relations with other governments) and 18(1) (d) (economic interests of Ontario) of the Act.

Subsequently, the Ministry indicated it would disclose record 8 to the Requester.The ten remaining records, as summarized by the Inquiry Officer, consisted of analytical summaries of agreements and other relations between the government of Ontario and Quebec and the respective communities, a paper on the possible economic consequences of Quebec independence, a summary of possible models for division of Canada's national debt, and a paper setting out strategies for relations with Ontario's creditors in the event of Quebec independence.

The Requester appealed the Ministry's decision to the Ontario Information and Privacy Commission.

In the Ministry's representation to the Inquiry Officer the Ministry requested that the Inquiry Officer issue,

The Inquiry Officer noted in his order that the Ministry's representations were detailed and that he had not elaborated on them in order to avoid disclosing the contents of the records.

With respect to portions of records 1, 6 and 7 and record 10 in its entirety, the Inquiry Officer accepted the Ministry's submission that they qualified for exemption under s. 13(1) of the Act.This section gives the head of an institution a discretion to refuse to disclose a record where this would reveal the advice or recommendations of a person employed in the service of an institution.With respect to records 1 to 7 and record 9 the Inquiry Officer held that disclosure of those records could reasonably be expected to prejudice the Ontario government's position in negotiations between Ontario and Quebec in the event of a "Yes" victory over Quebec's independence and that this in turn could reasonably be expected to prejudice inter-governmental relations between Ontario and Quebec.The Inquiry Officer agreed with the head of the institution's decision that these records were found to qualify for exemption under s. 15(a). This section allows a head the discretion to refuse to disclose a record where the disclosure could reasonably be expected to prejudice the conduct of inter-governmental relations by the government of Ontario or an institution.

With respect to record 10 concerning relations between Ontario and its investors, and record 11 concerning possible relations between the governments of Quebec and Canada, the Inquiry Officer found that neither of these records were sufficiently linked to relations between the government of Ontario and another government so that their disclosure could reasonably be expected to prejudice the conduct of such relations and therefore the s. 15(a) exemption did not apply.

Under the provisions of s. 18(1)(d) the Inquiry Officer found that all of the records at issue in the appeal qualified for the exemption under this section.Under this section a head may refuse to disclose a record that contains information where the disclosure could reasonably be expected to be injurious to the financial interests of the government of Ontario or the ability of the government of Ontario to manage the economy of Ontario.

The Inquiry Officer then went on to consider the effect of the section 23, "public override" provision. Section 23 of the Act provides that exemptions under sections 13, 15 and 18 do not apply, "where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption".

The Inquiry Officer described in his reasons the test which must be met to evoke the s. 23 "public override":

The Inquiry Officer then conducted an independent review of the records and concluded that there was a "compelling public interest" in their disclosure.He stated:

STANDARD OF JUDICIAL REVIEW

The Ministry submits that the appropriate standard of review in this case is "correctness".The Respondents submit that the proper test is that the court should only interfere with the decision of the Inquiry Officer as it relates to the public interest override if the decision was patently unreasonable or clearly wrong.

In the Supreme Court of Canada case, Pezim v. B.C. (Superintendent of Brokers), 114 D.L.R. (4th) 385, Iacobucci, J. at 404, in discussing the principles of judicial review, stated:

Iacobucci, J., in discussing the spectrum ranging from the standard of reasonableness to that of correctness stated:

In the Pezim case the court was dealing with the provincial British Columbia Securities Act.In reviewing the "where it considers it to be in the public interest", the court stated:

After reviewing the provisions of the British Columbia Securities Act, particularly the provisions dealing with the Commission's "public interest mandate", Iacobucci, J. stated:

Iacobucci, J. continued:

There have been a number of cases where this court has commented on the standard of review of the Privacy Commissioner's decision under the Freedom of Information and Protection of Privacy Act.These cases have been helpfully summarized in 18 Adv Q. 427 by G. Fahey and D. Goodis.

In the case of Right to Life Assn. of Toronto and Area v. Metropolitan Toronto District Health Council (1991), 86 D.L.R. (4th) 441 (Div. Ct.) the issue before the court was whether the Commissioner erred in finding that a list of names of persons in a record was "personal information" within the meaning of s. 2(1) of the Provincial Act.In considering the scope of review of the Commissioner's decision, Callaghan, C.J.O.C. adopted the oft-quoted passage from the judgment of Dickson, J. in S.E.I.U., Local 33 v. Nipawin District Staff Nurses Assn. (1991), 86 D.L.R. (4th) 444:

The court went on to consider whether the Commission's interpretation of "personal information" in s. 2(1) was a "construction and interpretation which may reasonably be considered to bear", and concluded that it was.

It was argued by the Applicant in that case that the Commissioner erred in his application of s. 23.

The court noted that the Commissioner set out the two requirements in s. 23 that there must be a compelling public interest in disclosure, and this compelling interest must clearly outweigh the purpose of the exemption, as distinct from the value of disclosure of the record in question.

The court made only a very brief referral to the Commissioner's finding.The court stated:

The court further stated:

In Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (1993), 102 D.L.R. (4th) 602, the court considered the Commissioner's interpretation and application of the law enforcement exemption in the Act.The issue was whether the Commissioner had erred in finding that a record was not a "law enforcement report" for the purpose of s. 14(2)(a) of the Provincial Act. In reviewing the appropriate standard of review the court adopted the statement of Callaghan, C.J.O.C. in the Right to Life Assn. case where the court refused to interfere with the decision of the Commissioner where the decision could be rationally supported on a construction which the relevant legislation may reasonably bear.The court concluded that the Commission is a specialized and expert tribunal with respect to decisions interpreting the exemptions from the right of access:

The court concluded that the interpretation of s. 14(2)(a) of the Act was within the specialized expertise of the Privacy Commissioner and that his interpretation was one that the section could reasonably bear.

In John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Ont. Div. Ct.), the issue before the court was whether the Commissioner erred in interpreting the personal privacy exemption provision.The court analyzed decisions of the Supreme Court of Canada, including Canada (Attorney-General) v. Mossop (1993), 100 D.L.R. (4th) 658, [1993] 1 S.C.R. 554.In the Mossop decision the court was considering a decision of a tribunal appointed under the Canadian Human Rights Act (C.H.R.A.) which issued a decision interpreting the term "family status" in s. 3 of that Act.LaForest, J., in discussing the nature of C.H.R.A. tribunal's expertise stated:

In discussing the Mossop case, the court in John Doe v. Ontario distinguished the function and duties of the Privacy Commissioner from that of the CHRA.

In the John Doe case the appellant had submitted to the court that the Right to Life case was no longer good law because of the Supreme Court of Canada case of Canada (Attorney General) v. Mossop.The court in John Doe proceeded to cite the decision of Callaghan, C.J.O.C. and stated:

The court drew an analogy between the Commissioner's role and that of other specialized tribunals. The court determined that:

This standard of deferring to the Commissioner's interpretation and application of its statute, in particular the interpretation of the exemptions from the right of access, so long as the construction is one that the statute can reasonably bear has been consistently applied by the courts. In several other cases the courts have upheld the Commissioner's interpretation and application of various other provisions of the Act.These include the definition of personal information, in Toronto (City) v. Hale, Inquiry Officer, Toronto Doc. 743/92 (October 25, 1994, Ont. Div. Ct.), the exemptions for personal privacy, in Ministry of Government Services v. Ontario (Mitchinson, Assistant Information & Privacy Commissioner) Toronto Doc. 839329 (February 11, 1994, Ont. Div. Ct.), the exemptions for cabinet records, in Ontario (Minister of Consumer & Commercial Relations) v. Fineberg, (December 21, 1995, Ont. Div. Ct.) leave to appeal refused [1996] O.J. No. 1838 (C.A.), advice and recommendations, in Ontario Human Rights Commission v. Ontario, unreported, Toronto Doc. 721/92 (March 25, 1994, Ont. Div. Ct.), law enforcement, in Ontario (Attorney General) v. Ontario (Information & Privacy Comm. Inquiry Officer) (1994), 116 D.L.R. (4th) 498, 19 O.R. (3d) 197, 73 O.A.C. 311 sum nom. Ontario (Attorney General) v. Fineberg (Div. Ct.), leave to appeal refused September 12, 1994, solicitor-client privilege, in Ontario (Minister of Consumer & Commercial Relations) v. Fineberg, supra, and danger to safety or health, in Toronto (City) v. Ontario (Information and Privacy Commissioner) (1995), 86 O.A.C. 368 (Div. Ct.).

The Ontario Court of Appeal recently reviewed the standard of review in a judicial review of a decision of the Ontario Privacy Commissioner in Walmsley v. Ontario (Attorney-General) 34 O.R. (3d) 611 (Ont. C.A.).This case dealt with a request for access to records relative to the appointment of a specific individual as a judge of the Ontario Court (Provincial Divisions).The issue was whether the documents that were in the personal possession of individual members of the Judicial Appointments Advisory Committee were under the control of the Ministry of the Attorney General for the purposes of s. 10(1) of the Act.The Commissioner had found that they were.

The Court of Appeal, in deciding whether s. 10(1) of the Act stretched to the documents in question, determined that s. 10(1)

The court, after referring to the statement of Iacobucci, J. in Pezim, found that,

The court went on to say:

In summary therefore, it appears clear that a court reviewing the Commission's decisions in considering the applicability of the exceptions under ss. 13(1), 15(a) and 18(1)(d) of the Act should exercise a strong measure of curial deference.

Should this same curial deference apply to the exercise of the Commissioner's duty in considering the public override provisions in section 23?In other words, does this aspect of the Commissioner's duty fall within a different category than the Commissioner's consideration of the exemption provisions?

Returning to the "pragmatic or functional approach" adopted by Iacobucci, J.A.C. in Pezim, in considering this question the court should examine:(1) the wording of the enactment conferring jurisdiction on the administrative tribunal; (2) the purpose of the statute creating the tribunal; (3) the reason for its existence; (4) the area of expertise of its members; and (5) the nature of the problem before the tribunal.

(1) The Wording of the Enactment Conferring Jurisdiction on the Commission:

With respect to the context of this case, in setting out the purposes of the Act s. 1 provides that the Act is a) to provide a right of access to information under the control of institutions in accordance with the principle that,

S. 50 of the Act provides that any person who has made a request for access to a record may appeal any decision of a head to the Commissioner.The Commissioner is then required to conduct an inquiry to review the head's decision (s. 52).After all of the evidence for an inquiry has been received, the Commissioner is required to make an order disposing of the issues raised by the appeal (s. 54).The Commissioner is entitled to make an order that "may contain any terms and conditions the Commissioner considers appropriate".(s. 54(3)).The commissioner under s. 59 has broad powers to order an institution to cease collection practises and destroy collections of personal information that contravene this Act (s. 59(b)) and in appropriate circumstances, authorize the collection of personal information otherwise and directly from the individual (s. 59(c)); engage in or commission research into matters affecting the carrying out of the purposes of this Act s. 59(d)); conduct public education programs and provide information concerning this Act and the Commissioner's role and activities (s. 59(e)) and; receive representations from the public concerning the operation of this Act (s. 59(f)).

Section 70 provides that the Act binds the Crown.

(2) The Purpose of the Statute Creating the Commission:

As stated above, s. (1) of the Act specifically sets out the purposes of the Act:

The public's entitlement to access to information in the hands of the government, subject to specific limitations, has recently been commented upon by the Supreme Court with reference to the Federal Access to Information Act (A-1).The federal legislation describes the purpose of that Act in terms very similar to the Ontario Act. In Dagg v. Canada (Minister of Finance) [1997], 2 S.C.R. 403 at p. 432 LaForest, J. stated:

( 3) The Reason for the Commissioner's Existence:

The court in Ontario (Solicitor-General) v. Ontario (Assistant Information and Privacy Commissioner) 102 D.L.R. (4th) 602 (Ont. Div. Ct.) helpfully summarized the reason for the Commissioner's existence:

(4) The Area of Expertise of its Members:

The Commissioner's primary "day-to-day" responsibilities in the area of requests for information is to weigh the competing interests of the public's right to access to information and the government's interest in confidentiality of government records.Before considering the public override provision, the balancing process requires the Commissioner to begin with the premise of the Act that the public has a right to government information unless one of the exemptions apply.For example, under s. 15 the Commissioner would weigh the public's right to know against whether the disclosure could reasonably be expected to prejudice the conduct of inter-governmental relations by the government of Ontario or an institution.Under s. 14 the weighing is between the public's right to know and whether the disclosure could reasonably be expected to interfere with law enforcement matters.Under s. 15 the weighing is between the public's right to know and whether the disclosure could reasonably be expected to prejudice the defence of Canada or any foreign state, allied or associated with Canada, or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism.Under s. 18(1)(a), the weighing is between the public's right to know against a record that contains trade secrets or financial, commercial, scientific or technical information that belongs to the government of Ontario or an institution that has monetary value or potential monetary value, or a weighing where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution, or whether disclosure could reasonably be expected to be injurious to the financial interests of the government of Ontario or the ability of the government of Ontario to manage the economy of Ontario.Under s. 20 the weighing is between the public's right to know against whether the disclosure could reasonably be expected to seriously threaten the safety or health of an individual.

If after determining that the public's right to know is "out-balanced" by the exemptions, the Commissioner is then required to determine if there is a compelling public interest to release the information to the public which clearly outweighs the purpose of the exemption.

(5) The Nature of the Problem Before the Court:

The problem before the court is the decision of the Inquiry Officer to apply the s. 23 override provision of the Act and order disclosure of certain records he found to be otherwise exempt from disclosure.In other words, the Inquiry Officer found that there was a compelling public interest in disclosing certain records that clearly outweighed the purposes of the exemptions that he agreed applied to the records.

The courts have previously commented on the s. 23 public override review required by the Commissioner.

In John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Div. Ct.) at p. 783 the court stated:

In Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.); leave to. appeal refused [1997] O.J. No. 694 (C.A.), the court stated:

In applying the pragmatic or functional approach, I am satisfied that the Commissioner has been given a broad discretion to continually weigh the public's right to obtain information in the government's hands against the need for the government's ability to operate effectively in developing policy in a confidential environment and to protect the valuable working relationship with intergovernmental contacts and to protect Ontario's economic security.The Commissioner, in performing the necessary weighing of opposing interests, is required in two other sections of the Act to consider the "public interest".In s. 11 there is a mandatory provision for disclosure if there are reasonable and probable grounds to believe that it is in the public interest to do so and the record reveals a grave environmental, health or safety hazard to the public.

Under s. 17(1)(b) there is a mandatory refusal requirement to disclose a record from a third party after taking into account "the public interest".

In my opinion, the balancing exercise required by s. 23 is a similar exercise although it requires the application of a much higher standard.

The criteria to be applied in s. 23, however, does not affect the standard of review to be applied.The balancing exercise required by s. 23, although employing a much a higher standard, involves the same opposing interests.

As this case turns on a question of interpretation of the governing statute and falls squarely within the area of expertise of the Commission it is my opinion that the appellate court should give curial deference to the opinion of the Inquiry Officer on the issue before it.

The appropriate standard to apply, therefore, is not whether the Inquiry Officer was correct, but whether his interpretation and application of s. 23 is one which the section can reasonably bear.

Did the Inquiry Officer reasonably interpret and apply s. 23 by ordering disclosure of certain records and portions of other records otherwise found exempt under s. 13(1), 15(a) and 18(1)(d) of the Act?

The first consideration is to review the Inquiry Officer's finding that there was a compelling public interest in disclosure of the records.

The Inquiry Officer applied the Oxford Dictionary definition of "compelling" as meaning "rousing strong interest or attention" from an earlier decision in Order P-984.In Order P-984/August 28, 1995, the Inquiry Officer who decided that matter stated at p. 4:

The Ministry submits that the Inquiry Officer should have used the definition for the verb "to compel" which is defined as - "to constrain, force, drive forcibly" - rather than the adjectival definition for "compelling" defined as - "raising strong interest or attention".

In my view, the Inquiry Officer's definition of the modifying word "compelling" before the words "public interest" is reasonable.The level of public interest to be found would, in this interpretation, be similar to the use of the modifying word compelling in describing "compelling evidence".That is, "strong" or "weighty" or "very cogent evidence".

It cannot, in my opinion, be said that the definition applied by the Inquiry Officer in determining the meaning of "a compelling public interest" is unreasonable or incorrect.

The Ministry further submits that the Inquiry Officer adopted too low a threshold test for identifying a "compelling public interest".The Ministry submits that "the need for informed public debate" is insufficient to meet the test for a "compelling" public interest.

In considering whether there was a compelling public interest shown by the public in releasing the information, the Inquiry Officer took note of the fact that,

He also adopted the Ministry's submissions that,

The Inquiry Officer considered the "need for informed public debate" in the context of the issue.The issue was the economic, social and Ontario budget impacts of a "Yes" vote in the Quebec referendum or Quebec separation.The Inquiry Officer noted that, as previously stated, this was a,

The Inquiry Officer then went on to find that,

The statement of LaForest, J. in Dagg v. Canada (Minister of Finance) referred to earlier, bears repeating in this context:

The Canadian author and philosopher John Ralston Saul in his recent book Reflections of a Siamese Twin - Canada at the End of the 20th Century (1997) (Viking Publication) at p. 460 makes a similar comment:

I also note that, coincidentally, several days after the court heard submissions, the Government of Ontario ran a series of prominent newspaper advertisements with large, bold headlines, stating:"IF YOU WANT TO BE HEARD YOU HAVE TO SPEAK UP".The advertisement stated,

The "Calgary Frameworks" for discussion was then summarized.The advertisement then stated:

Within days householders in Ontario received a questionnaire entitled "ONTARIO SPEAKS - A DIALOGUE ON CANADIAN UNITY".The questionnaire asked citizens of Ontario for "their ideas, opinions and input into the national unity question to help the Ontario government develop its policy on this issue".

This is a noteworthy example of the importance of the citizens' participation in setting government policy and the related necessity for information to be available to the public, subject only to certain limited exemptions.

In considering whether there was a compelling public interest in the disclosure of the records, the Inquiry Officer set out his reasoning as follows:

The Inquiry Officer first described the topic, i.e. the possible consequences of Quebec independence.He then proceeded to characterize the "subject" in terms of its seriousness to the citizens of Ontario.He noted that the subject had been a "prominent feature of discussion in this Canadian media and among members of the public".He also noted that this discussion and debate had gone on for "much of two decades".

He described the debate as having been "characterized by strongly held views, often expressed in an impassioned way".He pointed out that much of the discussion about the results of Quebec separating focused on the "economic and legal difficulties" that would result.As well, he noted the discussion of the possible consequences of Quebec separating, which focused on "the potential for a diminished international presence for Canada and a host of other significant consequences, many of which could clearly affect Ontario and its residents".

The Inquiry Officer, in my view, gave a reasoned and perhaps an understated characterization of the topic to which the records related.It cannot be said that he was in error in his description of the topic nor of the description of the debate and discussion that has existed and does exist in the media and among the citizens of this province.

As a result of determining that there was "strong interest or attention" by the public he was satisfied that, given the significance of the issue, there was a compelling public interest in disclosure of information about this subject.He then related this compelling public interest to the "need for informed public discussion" and found that the records at issue were related to the compelling public interest he identified.

The Inquiry Officer, who had the benefit of reviewing the records, went on to find that in his opinion, in the circumstances of the appeal, the disclosure of the particular records in issue would,

Can it be said that it was unreasonable for the Inquiry Officer to conclude that the strong public interest in information concerning the economic consequences on the citizens of Ontario of a "Yes" vote in the Quebec referendum or of Quebec's separation from Canada was not a "compelling public interest"?

In considering the nature of important issues or subjects where information might come within the category of a "compelling public interest" in a s. 23 public override context, one might think of possible environmental, health or safety hazards.However, as previously stated, s. 11 of the Act requires a mandatory disclosure of any record where there are reasonable and probable grounds to believe that it is in the public interest or there is a grave environmental, health or safety hazard.

In the case of Ontario Hydro v. Mitchinson, supra the court was dealing with a request for access to a copy of all peer evaluation reports for each of the five nuclear plants operated by Hydro.The requester was a newspaper reporter.In the Inquiry Officer's findings he stated:

The Inquiry Officer went on to adopt the comments of his colleague Inquiry Officer Tom Wright, who discussed the issue of nuclear safety and the s. 23 public override in Order P-270.That appeal,

The Divisional Court, in upholding the decision of its Inquiry Officer stated in a very terse endorsement:

In a political and economic context, however, where there is the possible dissolution of the country as a result of a province neighbouring Ontario containing approximately 15% of Canada's entire land mass and representing 25% of the country's population and approximately 23% of Canada's Gross Domestic Product withdrawing from the Canadian Federation, one would be hard-pressed to come up with an subject of greater public interest.

Having determined that the disclosure of the information to the public was a compelling public interest, the Commissioner then proceeded to consider and analyze whether this compelling public interest "clearly outweighed" the prejudice and injury against which the exemptions were designed to protect.

The Ministry submitted that the Inquiry Officer "failed to consider and analyze" how the public interest in disclosure "clearly outweighed" the prejudice and injury against which the exemptions were designed to protect.I adopt the submissions of the Respondents on this issue.I find that the Inquiry Officer clearly turned his mind to this issue.While recognizing that "formulation of government policy in a confidential environment" and "protecting intergovernmental working relationships" were also important public policy concerns, the Inquiry Officer found it "clear" that even if its records are disclosed, "the formulation of government; policy on this subject will proceed as necessary" and "contracts between the governments of Ontario and Quebec will continue of necessity".

With reference to records found exempt under s. 18(1)(d) the Inquiry Officer proceeded to distinguish information which would disclose the Ontario government's negotiation strategies, or detailed information about potential impacts on affected sectors of the Ontario economy, from other information.The Inquiry Officer found that maintaining the confidentiality of these strategies and impact studies was "vital" to the government's ability to protect the Ontario economy and that the public interest in disclosure did not outweigh the purpose of the exemptions from this information.The Inquiry Officer did not order the disclosure of these portions of the records.On the other hand, information about Ontario/Quebec agreements and impacts on Ontario/Quebec relations was found to be "not as closely linked to achieving this important public interest".

In weighing these various factors in the balance, the Inquiry Officer noted that minimisation of any potential negative effects on Ontario's economy would "represent an important public interest for Ontarians".

I am satisfied that the Inquiry Officer did engage in the analysis required by s. 23 and articulated a reasoned and rational basis for applying the public interest override.

The Ministry made reference to an earlier decision of the Inquiry Officer in Order 128, December 5, 1989, where it was held that the "need for informed public debate" was insufficient to meet the test for a "compelling" public interest.

In that case the Inquiry Officer was dealing with draft legislation amending the Workers' Compensation Act and the requester sought copies of all background papers and other related material.The Inquiry Officer held that the records fell within the s. 13 exemption.In considering the s. 23 override provision he held that "the need for public debate in and of itself is sufficient to outweigh the purpose of this exemption".

I agree with the submissions of the Respondents that this decision did not purport to lay down a general proposition that the need for public debate can never override the purpose of an exemption.Rather, this case was decided with reference to the specific records at issue.The subject matter and the surrounding circumstances must be considered.

In my view, the Inquiry Officer was reasonable and not clearly wrong.I agree with the observations of Inquiry Officer Tom Wright that

The Ministry submitted that given the decision of the Inquiry Officer all future studies or reports on the broad issue of the economic impact of Quebec's separation on Ontario will become public.I note that in the Inquiry Officer's reasons, in my opinion, he has specifically limited his comments to these particular records that were prepared within a specific time period and were no doubt related to the time of the 1995 Quebec referendum.The finding of a compelling public interest in the information contained in the records was directly related to the enhancement of the ability of the public "to formulate and express opinions about the possibility of Quebec independence, and to make political choices in that regard".

It is important to recall that over the last 20 years there have been several attempts by the federal and provincial governments to devise policies to resolve Canada's "national unity" crisis.Proponents of Quebec's separation have argued that the rest of Canada is not "interested or willing to make the necessary changes to accommodate Quebec's aspirations".

As previously noted, the premiers of the provinces outside Quebec, along with the territorial leaders, are making a further attempt to persuade the citizens of Canada outside Quebec to discuss changes that might be acceptable to the majority of citizens in quebec.It is reasonable to assume if this latest "Calgary Framework" is not successful, further proposals will be offered before any "Quebec separation".

Given these circumstances, and having particular regard to the acknowledged significant consequences of Quebec becoming an independent state, surely information obtained by the Province of Ontario directly bearing on an extremely important aspect of this subject, i.e., the economic impact on Ontario of a Quebec separation, is information that should be in the public domain at this time.Government leaders are asking for public input by the citizens on this very issue. The citizens of Ontario are being required to make political choices on the Ontario government's stance in changes being proposed to further the national unity debate.

Considering the standard to apply on this judicial renew I am satisfied that the consideration and analysis of the Commissioner was appropriate.His analysis was reasoned and he did apply a rational basis for the public interest override.It is obvious to me that the approach taken by the Commissioner as set out in his reasons which were, at the request of the Ministry, to be in "couched language" set out an acceptable reasoned process.The adequacy of a Commissioner's reasons has been considered by the court in Toronto (City) v. Information and Privacy Commissioner (Ont.).In that case, the City had asked the commissioner not to make public details of an alleged incident of violence because this might serve to endanger a City employee.in considering the city's subsequent objection to the Commissioner's alleged failure to consider this incident at all, this Court found the Commissioner's Order equivocal on its face, but dismissed the objection citing two decision of the Supreme Court of Canada.Reference is made to the Nipawin case, [1975] 1 S.C.R. 382; 41 D.L.R. (3d) 6, at p. 13:

A tribunal is not required to make an explicit written finding on each constituent element, however subordinate, leading to its final conclusion.

In another decision of the Supreme Court of Canada, Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102; 28 D.L.R. (3d) 489, at p. 492, the following is found in the reasons of Laskin, J.:

In my opinion, the Application for judicial review should therefore be dismissed.

MacDOUGALL, J.