ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

Saunders J.

ONTARIO FEDERATION OF ANGLERS AND HUNTERS

and

DONALD HALE, INQUIRY OFFICER, OFFICE OF THE
INFORMATION AND PRIVACY COMMISSIONER/ONTARIO et al.

ENDORSEMENT

Order to go in terms of paragraph (a) of notice of motion. Balance of motion is adjourned sine die to be brought on on proper notice not before November 15, 1994.

In my opinion the statute (Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31) does not provide confidentiality for the identity of the requester if he seeks to be a party before the court on a judicial review application. The court may provide anonymity to a known party but only in rare and special circumstances. I am not persuaded that such circumstances exist in this case.

In this proceeding the requester is a proper party as he has the greatest interest in upholding the decision under review. Counsel for the applicant submits that as he does not know the identity of the requester he is unable to fully deal with his request for status a year after the application was launched. He may wish to question the bona fides of the requester. The statute does not provide any condition on which a request may be made and does not deal with the bona fides of the requester. The recipient of a request can give no consideration to the motive for it and neither can the Commissioner. It seems to me that if it is an issue at all, it should be raised in the context of the application or perhaps on any argument on access in preparation for the hearing. The requester should have status if identity is revealed.

The requester seeks an adjournment to consider whether to provide identity. If the requester becomes a party, the issue of access to his counsel will have to be determined.

ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

White. J.

ONTARIO FEDERATION OF ANGLERS AND HUNTERS

and

DONALD HALE, INQUIRY OFFICER, OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER/ONTARIO et al.

ENDORSEMENT

Mr. Danson, counsel for the Ontario Federation of Anglers and Hunters, objects to Mr. Sherry, counsel for the Chippewas of the Nawash First Nation, seeing the sealed material since Mr. Sherry acts for other First Nations than the Chippewas of Nawash. Mr. Danson relies on Gravenhurst (Town) v. Ontario (Informtion and Privacy Commissioner)(1993), 13 O.R. (3d) 531 (Div. Ct). I distinguish that case in as much as there is no other litigation extant, in which Mr. Sherry is included, affecting the parties now before the Court. The general rule set out inNEI Canada Ltd. v. Information and Privacy Comrnissioner (Ont.)(1990), 40 O.A.C. 77 (Div. Ct.) should apply.

Mr. Sherry in my opinion should have as full access to all relevant material as other counsel in the matter. It would not be just to call on him to argue whether the Commissioner was correct in his ruling, unless he had an opportunity to review the material in respect of which the ruling was made.

An order will go on consent that the name of "John Doe" in the style of cause in all proceedings herein be changed to "the Chippewas of the Nawash First Nation" and that Chippewas of the Nawash First Nation be Respondents rather than proposed respondent.

An order will further go that Mr. Danson as counsel for the Ontario Federation of Anglers and Hunters, and that Mr. Sherry as counsel for the Chippewas of the Nawash First Nation shall have access to the sealed record of documents for the purpose of preparing for the hearing of the application for judicial review which challenges the Commissioner's ruling, on their providing to the Commissioner of an undertaking in writing that (1) they shall use the disclosed material only for the purpose of preparing for the application for judicial review and for no other purpose; and (2) they will not disclose that information to their respective clients, or any other person provided however that should the Divisional Court refuse to grant judicial review of the Commissioner's order, they may make disclosure of such material in accordance with the Commissioner's order.

An order shall therefore go in the form I have approved.

ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

Rosenberg, Borins and Adams JJ.

ONTARIO FEDERATION OF ANGLERS AND HUNTERS

and

DONALD HALE, INQUIRY OFFICER et al.

ENDORSEMENT

The application is dismissed.

We are not persuaded that there is any reason to interfere with the decision of the Privacy Commissioner. Costs to the respondent Chippewas of Nawash First Nations against the applicant fixed at $3,500.00.