On appeal from the order of the Divisional Court (Justices E. Patrick Hartt, Michael R. Meehan and Lawrence C. Kozak) dated March 20, 2000.

SIMMONS J.A.:

[1]  These three appeals, which were heard together, arise from three unrelated requests by individuals (`requesters') for access to information in the possession of Ontario government ministries. In each case, the responsible government official denied access to the records on the basis that the records fell within s. 65(6) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (the `Act') and were not therefore subject to the Act. In each case, the Assistant Privacy Commissioner sitting on appeal from that decision held that the records did not fall within s. 65(6) and were therefore subject to the Act. The respective ministries challenged each ruling by way of judicial review application. The Divisional Court heard the applications together and, applying a reasonableness standard of review, dismissed the applications. This court granted leave to appeal. I would allow the appeals. In my view, the Assistant Privacy Commissioner's rulings are reviewable on a correctness standard. On the correct interpretation of s. 65(6), the Act does not apply to the records sought by the requesters.

[2]  The Act provides rights of access to records in the custody or control of Ontario government `institutions'. It also protects the privacy of personal information contained in such records. When a person requests access to records in the custody or control of an institution, the `head' of the institution is responsible for determining whether the records should be disclosed in accordance with the principles set out in the Act.

[3]  Although in the custody or control of an Ontario government institution, records relating to "[p]roceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution" are excluded from the Act by s. 65(6)1. Similarly, records relating to "[m]eetings, consultations, discussions, or communications about labour relations or employment-related matters in which the institution has an interest" are excluded from the Act by s. 65(6)3 even though in the possession of a government institution.

[4]  In each of these three appeals, the head of the relevant institution determined the records in issue were excluded from the Act by s. 65(6)3. In one instance, the head determined the records were also excluded by s. 65(6)1.

[5]  On appeal, the Assistant Privacy Commissioner determined that the words `in which the institution has an interest' as found in s. 65(6)3 of the Act refer to `a legal interest', in the sense of `having the capacity to affect the legal rights or obligations of the institution'. He also found there were no employment-related issues pending or reasonably foreseeable in relation to the records forming the subject matter of any of the three requests. He accordingly ruled that the respective ministries no longer have an interest in the records requested and that the records are not therefore excluded from the Act by s. 65(6)3. In the case also involving s. 65(6)1, the Assistant Privacy Commissioner determined the exclusion provided by that subsection did not apply because there were no existing proceedings or anticipated proceedings before a court, tribunal or other entity. He ordered the respective ministries to deliver a decision concerning disclosure in accordance with the principles set out in the Act.

[6]  In a brief endorsement the Divisional Court determined the standard of review of the Assistant Privacy Commissioner's decisions is reasonableness, but in any event, confirmed his interpretation of s. 65(6) of the Act if the appropriate standard of review is correctness.

[7]  Applying a correctness standard of review, in my view the Assistant Privacy Commissioner erred in his interpretation of s. 65(6) in two respects, first, by restricting the meaning of 'interest' to 'legal interest' in s. 65(6)3, and second, by introducing an erroneous time element into both s. 65(6)1 and s. 65(6)3.

Background

[8]  The factual circumstances surrounding the three requests for disclosure and a brief summary of the decision of the Assistant Privacy Commissioner in relation to each request are set out below.

Request to Ministry of the Solicitor General and Correctional Services for Information Relating to the Take-Over of Municipal Policing duties by the O.P.P. -- PO-1658

[9]  The requester sought disclosure of the following information:

[10]  The Ministry provided the requester with certain information about the rank determination process. It also advised him that `the rank Determination Board has concluded that Chiefs of Police be appointed at the ranks of Constable, Sergeant, Staff Sergeant, and Inspector.' It denied access to additional information on the basis that the specific information requested was excluded from the Act pursuant to s. 65(6)3.

[11]  The requester appealed the Ministry's decision to the Privacy Commissioner. The requester clarified that he was not seeking information about individual former municipal Chiefs of Police. Rather, he wanted to know the number of former Chiefs assigned to each rank at the time of joining the OPP, and the numbers who had achieved particular levels of formal education at that time.

[12]  The Assistant Privacy Commissioner reviewed the provisions of sections 65(6) and 65(7) of the Act. Those sections provide as follows:

[13]  He determined that "[t]he interpretation of sections 65(6) and (7) is a preliminary issue which goes to the application of the Act to the requested records." He found those subsections "record-specific and fact-specific" in that a record would remain within "the Commissioner's jurisdiction" if it fell within one of the exceptions listed in s. 65(7), even though it initially fell within s. 65(6). He found the requested records met the first two criteria set out in s. 65(6)3 in that i) they were collected, prepared, maintained or used by the Ministry or on its behalf and ii) the collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications. He found the records also clearly related to an employment-related matter. He considered the real issue was whether it was an employment related matter in which the Ministry "has an interest".

[14]  On that issue, he said the following:

[15]  In the result, the Assistant Privacy Commissioner ordered the Ministry to issue a decision letter to the requester concerning his request.

Request to Ministry of the Solicitor General and Correctional Services for a Copy of a Public Complaint File relating to a Complaint made by the Requester and her Husband to the Police Complaints Commission -- PO-1618

[16]  In 1992, the requester's husband alleged he had been assaulted. He subsequently complained that OPP officers assigned to the matter failed to thoroughly investigate the incident. When the OPP determined his complaint about the officers was not substantiated, the requester's husband asked for a review by the Police Complaints Commissioner. The requester later asked for a copy of the Police Complaints Commission file. The Ministry denied the request on the basis that the records were excluded from the Act by sections 65(6) 1 and 3¹.

[17]  The Assistant Privacy Commissioner analyzed section 65(6)3 in essentially the same fashion as outlined above. He concluded that the OPP had an obligation under the Police Services Act, R.S.O. 1990, c. P.-15 to investigate the complaint against the police officer[s] and that "this constituted a legal interest in an employment-related matter at the time of the investigation." However, he found that as six years had passed and he had not been provided with any evidence to suggest "there is an outstanding interest in the investigation that has the capacity to affect the OPP's legal rights or obligations ... there is no matter pending or reasonably foreseeable which has the capacity to affect the Ministry's legal rights or obligations." He also found the records were not excluded by s. 65(6)1 of the Act as there were no existing proceedings or anticipated proceedings before a court tribunal or other entity. He ordered the Ministry to deliver a decision letter to the requester concerning her request.

Request to Ministry of the Attorney General for a Copy of all Records Relating to a Job Competition for the Position of Legal Counsel Ministry of Consumer and Commercial Relations Legal Services Branch -- PO-1627

[18]  The requester was an unsuccessful candidate for a position posted on the Association of Law Officers of the Crown Job Transfer List, namely, legal counsel with the Legal Services Branch of the Ministry of Consumer and Commercial Relations. He requested access to a copy of all records relating to the job competition that was conducted under the Public Service Act, R.S.O. 1990, c. P.47, including copies of the job description, of the questions used at his interview, of the model answers, of the answers he provided as recorded by the panel, and of the draft model factum and legal opinion. The Ministry denied the request on the basis that the records fell outside the Act by virtue of s. 65(6)3. It subsequently clarified that a job description, model factum and model answers were not prepared for the competition.

[19]  Again, the Assistant Privacy Commissioner analyzed s. 65(6)3 in the same fashion as outlined above. He accepted that the Ministry's responsibilities as an employer to adhere to the Ontario Human Rights Code during the recruitment process "constituted a legal interest in an employment-related matter at the time of the job competition." However, he found that the "recruitment process has been completed, and the appellant has provided convincing arguments that there are no outstanding interests in this job competition process that have the capacity to affect the Ministry's legal rights or obligations." He said, "there is no employment-related matter pending or reasonably foreseeable which has the capacity to affect the Ministry's legal rights or obligations ..." He found that the Ministry had not demonstrated a "sufficient legal interest in the records to bring them within the ambit of s. 65(6)3". Again, he ordered the Ministry to deliver a decision letter to the requester concerning his request.

Other Relevant Provisions of the Act

[20]  The purposes of the Act are set out in section 1 which provides:

[21]  The general right of access to records "in the custody or under the control of an institution" is set out in s. 10 of the Act. Sections 12 to 22 of the Act provide both mandatory and discretionary exemptions from disclosure. Section 23 provides for an override of certain exemptions "where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption." Section 65 contains a miscellaneous list of records that are excluded from the Act. Without exception, the exclusions are framed as records to which the "Act does not apply".

Divisional Court Decision

[22]  The Divisional Court delivered reasons applicable to all three applications by endorsement in the application relating to the request for disclosure of the Police Complaints Commission file. The relevant portions of that endorsement are as follows:

Analysis

Standard of Review

[23]  The Ministries contend the appropriate standard of review is correctness while the Privacy Commissioner contends that the appropriate standard of review is reasonableness.

[24]  Rather than focusing on classifying issues as jurisdictional or otherwise, the Supreme Court of Canada has adopted a `pragmatic and functional approach' to determining the appropriate standard of review of the decisions of administrative tribunals. In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at 1004-1005, Bastarache J. set out the general principles governing this approach and also confirmed the emergence of "reasonableness" as a third recognized standard, in addition to the traditional standards of "correctness" and "patent unreasonableness", within the spectrum of standards of review:

[25]  He then reviewed the factors to be considered in the course of the analysis and a variety of considerations applicable to each³. Those factors, and the considerations applicable to them that are relevant for the purposes of this appeal, may be conveniently summarized as follows:

[26]  The Privacy Commissioner submits the Supreme Court of Canada has thus signalled that reviewing courts must proceed cautiously when assessing the jurisdiction of administrative tribunals. Though charged with the important task of ensuring tribunals do not exceed their legislated mandate, courts must be careful not to limit a tribunal's functions in a manner not intended by the legislature. The provisions of a tribunal's enabling statue do not always admit of one "correct" meaning. In order to promote the public policy reflected in the statute, logically, such provisions should be left with the tribunal for an interpretation informed by its specialist perspective⁴.

[27]  The Privacy Commissioner says the records now excluded by s. 65(6)⁵ are ones over which she formerly exercised decision-making authority. The interpretation of s. 65(6), like the interpretation of the exemption provisions⁶, engages the Privacy Commissioner in a "context sensitive", "record by record", determination aimed at reflecting the legislature's choice between the competing values of access and confidentiality. She relies on the fact that courts have consistently held that the standard of review of her decisions relating to the interpretation of rights of access and exemptions under the Act is reasonableness. Balancing the objectives set out in the Act lies at the heart of her specialized expertise. She asserts the legislature cannot be presumed to have intended she should now have lesser expertise or be accorded lesser deference. The applicable standard of review of her interpretation of s. 65(6) should therefore be reasonableness.

[28]  In my view, an application of the Pushpanathan factors to the circumstances of this case indicates that the appropriate standard of review is correctness.

[29]  Relative expertise is no doubt a highly significant factor in the determination of the appropriate standard of review. This court recognized the expertise of the Privacy Commissioner in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 164 D.L.R. (4th) 129 (Ont. C.A.) as follows:

[30]  While acknowledging the relative expertise of the Privacy Commissioner in matters requiring it, in my view the very wording of s. 65(6) indicates her expertise is not engaged in its interpretation. By using the words "this Act does not apply", the legislature has distinguished exclusions from exemptions, and has declared that the "delicate balanc[ing] between the need to provide access to government records and the right to protection of personal privacy", which engages the expertise of the Privacy Commissioner, plays no role in relation to the enumerated records. Accordingly, relative to the court, the Privacy Commissioner possesses no particular expertise that is significant to the interpretation of the section. In my view, this wording also signifies the legislature's intention that the Privacy Commissioner not have a determinative say in the interpretation of the section. Had it viewed the matter otherwise, it would not have excluded the enumerated records from the operation of the Act.

[31]  In short, when applied to the particular circumstances presented, I consider the Pushpanathan factors favour correctness as the appropriate standard of review. This conclusion appears to be consistent with the decision of this court in Walmsley, supra. There, Goudge J.A. found s. 10(1) of the Act to be jurisdiction-limiting, in the sense that records not "in the custody or under the control of" an institution are not subject to the Act and are therefore beyond the jurisdiction of the Privacy Commissioner. Using a functional and pragmatic approach, he determined the appropriate standard of review of a decision interpreting s. 10(1) to be correctness, based on that finding, the absence of a privative clause, and the conclusion that no particular expertise was required for the interpretation of the operative words of the section. Particularly in the latter respect, s. 10(1) and s. 65(6) share a common characteristic. Was the Assistant Commissioner's Interpretation of ss. 65(6)1 and 3 of the Act Correct?

[32]  In my view, the Assistant Commissioner erred in his interpretation of s. 65(6) in two respects:  first, by restricting the meaning of "interest" to "legal interest" in s. 65(6)3; and second, by introducing a time element into the section, when none exists. He introduced a time element into sub clause 1⁸ by requiring that any proceedings "be current, anticipated, or in the reasonably proximate past" and into sub clause 3⁹ by requiring that an institution "establish an interest that has the capacity to affect its legal rights ... and that there ... be a reasonable prospect that this interest be engaged".

[33]  I will repeat the relevant provisions for ease of reference:

[34]  In arriving at the conclusion that the words "in which the institution has an interest" in s. 65(6)3 must be referring to "a legal interest" in the sense of having the capacity to affect an institution's "legal rights or obligations", the Assistant Privacy Commissioner stated that various authorities support the proposition that an interest must refer to more than mere curiosity or concern.¹⁰ I have no difficulty with the latter proposition. It does not however lead to the inevitable conclusion that "interest" means "legal interest" as defined by the Assistant Privacy Commissioner.

35]  As already noted, section 65 of the Act contains a miscellaneous list of records to which the Act does not apply. Subsection 6 deals exclusively with labour relations and employment related matters. Subsection 7 provides certain exceptions to the exclusions set out in subsection 6. Examined in the general context of subsection 6, the words "in which the institution has an interest" appear on their face to relate simply to matters involving the institution's own workforce. Sub clause 1 deals with records relating to "proceedings or anticipated proceedings relating to labour relations or to the employment of a person by the institution" [emphasis added]. Sub clause 2 deals with records relating to "negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution" [emphasis added]. Sub clause 3 deals with records relating to a miscellaneous category of events "about labour-relations or employment related matters in which the institution has an interest". Having regard to the purpose for which the section was enacted¹¹, and the wording of the subsection as a whole, the words "in which the institution has an interest" in sub clause 3 operate simply to restrict the categories of excluded records to those records relating to the institutions' own workforce where the focus has shifted from "employment of a person" to "employment-related matters". To import the word "legal" into the sub clause when it does not appear, introduces a concept there is no indication the legislature intended.

[36]  As for the time element introduced into subsection 6, I note that in dealing with the request for access to the Police Complaints Commission file, the Assistant Privacy Commissioner acknowledged the stated purpose of the package of amendments by which Section 65(6) was added to the Act in 1995 and articulated a purposive approach to the interpretation of the section:

[37]  As already noted, the records described in s. 65(6) are expressly excluded from the Act. Though the Act as a whole provides a context for understanding the words of a specific section, the purposes section of an act does not mandate introduction of language into a statutory provision that is otherwise clear.¹³

[38]  In my view, the time sensitive element of subsection 6 is contained in its preamble. The Act "does not apply" to particular records if the criteria set out in any of sub clauses 1 to 3 are present when the relevant action described in the preamble takes place, i.e. when the records are collected, prepared, maintained or used. Once effectively excluded from the operation of the Act, the records remain excluded. The subsection makes no provision for the Act to become applicable at some later point in time in the event the criteria set out in any of sub clauses 1 to 3 cease to apply.

[39]  This interpretation also makes practical sense for the purposes of administration of the Act. Institutions are required by s. 39(2) of the Act to give notice to affected individuals "[w]here personal information is collected on behalf of the institution". Retention and disposal of personal information is to be dealt with as prescribed by regulation. In the absence of clear language one would not expect that institutions are required to continually review their records on an ongoing basis to assess the applicability of the Act.

[40]  In my view, therefore, the Assistant Privacy Commissioner was wrong to limit the scope of the exclusions in the way that he did.

Conclusion

[41]  For the reasons given, I would allow the appeals and quash the decisions of the Assistant Commissioner. Insofar as PO-1618 is concerned, I would quash the decision of the Assistant Commissioner only as it relates to part 2 of the request, being the only portion of the request in issue on this appeal.

[42]  In my view, it is not for this court on an application for judicial review to make any form of declaration as to whether the records are, or are not, excluded from the Act. The effect of quashing the decisions of the Assistant Privacy Commissioner will simply be that the decisions of the heads of the respective Ministries will be restored.

[43]  I would make no order as to costs.

SIMMONS J.A.
CATZMAN J.A. -- I agree.
DOHERTY J.A. -- I agree.

Released: Aug 08 2001

      The following is the text of a corrigendum released by the Court: