Canadian Medical Protective Association v. Loukidelis et al., (2008) 241 O.A.C. 346 (DC)

• Judge: Lederman, Kiteley and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 09, 2008
• Jurisdiction: Ontario
• Citations: (2008), 241 O.A.C. 346 (DC)

CMPA v. Loukidelis (2008), 241 O.A.C. 346 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. SE.039

The Canadian Medical Protective Association (applicant) v. Daphne Loukidelis, adjudicator, John Doe, requester, Ministry of Health and Long-Term Care, The Ontario Medical Association and The Attorney General of Ontario (respondents)

The Ontario Medical Association (applicant) v. Daphne Loukidelis, adjudicator, John Doe, requester, Ministry of Health and Long-Term Care and The Attorney General of Ontario (respondents)

(461/06; 252/08)

Indexed As: Canadian Medical Protective Association v. Loukidelis et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lederman, Kiteley and Swinton, JJ.

September 9, 2008.

Summary:

A requester sought access under the Freedom of Information and Protection of Privacy Act (FIPPA), to a Memorandum of Understanding (MOU) between the Canadian Medical Protective Association (CMPA) (a non-profit medical mutual defence organization), the Ontario Medical Association (OMA) (a non-profit organization that represented the political, clinical and economic interests of the province's medical profession), and the Ministry of Health and Long-Term Care. The MOU dealt with financial arrangements between the government and physicians. The Minister declined to disclose the MOU. The requester appealed. An adjudicator reversed the Minister's decision. The OMA and the CMPA each applied for judicial review.

The Ontario Divisional Court dismissed the applications.

Crown - Topic 7103.5

Examination of public documents - General - Trade union defined - A requester sought access under the Freedom of Information and Protection of Privacy Act (FIPPA), to a Memorandum of Understanding (MOU) between the Canadian Medical Protective Association (CMPA) (a non-profit medical mutual defence organization), the Ontario Medical Association (OMA) (a non-profit organization that represented the political, clinical and economic interests of the province's medical profession), and the Ministry of Health and Long-Term Care - The MOU dealt with financial arrangements between the government and physicians - The Minister declined to disclose the MOU - The requester appealed - An adjudicator reversed the Minister's decision - The adjudicator found that the OMA was a "trade union" for purposes of s. 65(7)1 of the FIPPA and because the MOU was an agreement "between an institution and a trade union", FIPPA applied to the MOU and, therefore, the adjudicator had jurisdiction - The OMA and the Ministry challenged the adjudicator's determination - The Ontario Divisional Court held that the adjudicator's broad interpretation of "trade union" was correct, given the language of ss. 65(6)3 and 65(7)1, when read together and in light of the overall purpose of the FIPPA - Therefore, the adjudicator was correct in concluding that the MOU was not excluded from the FIPPA - See paragraphs 17 to 38.

Crown - Topic 7103.5

Examination of public documents - General - Trade union defined - Section 65(7)1 of the Freedom of Information and Protection of Privacy Act (FIPPA) provided that the Act applied to "an agreement between an institution and a trade union" - The Ontario Divisional Court interpreted the phrase "trade union" within the meaning of s. 65(7)1 using the modern approach - The court first considered the ordinary and grammatical sense of the term "trade union", looking at dictionary definitions and the French language version of the FIPPA ("syndicat") - The court noted that the Labour Relations Act (LRA) also translated the term "trade union" as "syndicat", but did not find the definition of "trade union" in the LRA determinative of the meaning of the term in the FIPPA, given the different context in which the term was used in the FIPPA - The court stated however that the presumption of coherence was of assistance in this case - To adopt a narrow interpretation of "trade union" in s. 65(7)1 would lead to a result that made no logical sense and that undermined the overall purpose of FIPPA - A broad interpretation of "trade union" was consistent with the purpose of FIPPA in general and s. 65(7)1 in particular - See paragraphs 17 to 38.

Crown - Topic 7103.6

Examination of public documents - General - Supplied defined - A requester sought access under the Freedom of Information and Protection of Privacy Act (FIPPA), to a Memorandum of Understanding (MOU) between the Canadian Medical Protective Association (CMPA) (a non-profit medical mutual defence organization), the Ontario Medical Association (OMA) (a non-profit organization that represented the political, clinical and economic interests of the province's medical profession), and the Ministry of Health and Long-Term Care - The MOU dealt with financial arrangements between the government and physicians and contained confidential actuarial assumptions and principles developed and used by the CMPA - The Minister declined to disclose the MOU, relying on the third party information exemption (FIPPA, s. 17(1)) - The requester appealed - An adjudicator reversed the Minister's decision, holding that while the MOU contained commercial and financial information within the purview of s. 17(1) of FIPPA, the main body of the MOU was not "supplied" to the Ministry, as it was the product of a negotiation process - However, a Table in the appendix was not the product or subject of negotiations and was, therefore, "supplied" by the CMPA to the Ministry, but the Table, although supplied, had not been supplied "in confidence" - The CMPA and OMA applied for judicial review - The Ontario Divisional Court dismissed the applications - The court interpreted the word "supplied", holding that the adjudicator's decision that none of the information in the MOU qualified for an exemption under s. 17(1) was reasonable - See paragraphs 39 to 64.

Crown - Topic 7164

Examination of public documents - Freedom of information - Legislation - Application of - [See first Crown - Topic 7103.5 ].

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - [See Crown - Topic 7103.6 and second Crown - Topic 7214.1 ].

Crown - Topic 7214.1

Examination of public documents - Freedom of information - Bars - Commercial, financial, labour relations, scientific or technical information - [See Crown - Topic 7103.6 ].

Crown - Topic 7214.1

Examination of public documents - Freedom of information - Bars - Commercial, financial, labour relations, scientific or technical information - Section 17(1) of the Freedom of Information and Protection of Privacy Act (FIPPA) provided that "A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to ..." - The Ontario Divisional Court interpreted the word "supplied" as used in s. 17(1) - The court opined that although the French language version of the statute had no equivalent to the word "supplied", the French version of s. 17(1) could be read in a way that implicitly included the notion of "supplied", as the purpose of s. 17(1) incorporated the idea that the exemption was designed to protect information "received from" third parties, a notion that conformed with the concept of "supplied" - Thus, the presence or absence of the verb "supplied" in the French version was not determinative, and the English and French versions could be read harmoniously - See paragraph 52.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Section 65(7)1 of the Freedom of Information and Protection of Privacy Act (FIPPA) provided that the Act applied to "an agreement between an institution and a trade union" - An adjudicator appointed under the FIPPA ruled that the Ontario Medical Association (OMA) was a "trade union" for purposes of s. 65(7)1 - Judicial review applications were filed - The Ontario Divisional Court held that the standard of review of the adjudicator's decision that the OMA was a "trade union" within the meaning of s. 65(7)1 was correctness, as it involved an issue of statutory interpretation going to the adjudicator's jurisdiction - See paragraph 22.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - An adjudicator appointed under the Freedom of Information and Protection of Privacy Act made a ruling on a third party exemption under s. 17(1) - The Ontario Divisional Court held that the appropriate standard of review of an adjudicator's decision on the applicability of the exemption was reasonableness - See paragraph 39.

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - [See second Crown - Topic 7103.5 and second Crown - Topic 7214.1 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - The Ontario Divisional Court, in interpreting s. 65(7)1 of the Freedom of Information and Protection of Privacy Act, adopted the modern approach as outlined in Sullivan and Driedger on the Construction of Statutes (4th) - In that text the modern approach was described as: "At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with legal norms; it is reasonable and just" - See paragraphs 23 and 24.

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes - [See second Crown - Topic 7103.5 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes - The Ontario Divisional Court referred to the description of the presumption of coherence as in Sullivan and Driedger on the Construction of Statutes (4th): "It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal" - See paragraph 33.

Words and Phrases

Supplied - The Ontario Divisional Court interpreted the word "supplied" as used in s. 17(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31 - See paragraphs 43 to 57.

Words and Phrases

Trade union - The Ontario Divisional Court interpreted the phrase "trade union" as used in s. 65(7)1 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31 - See paragraphs 25 to 38.

Cases Noticed:

Ontario (Minister of Health and Long-Term Care) v. Information and Privacy Commissioner (Ont.) (2003), 178 O.A.C. 171 (C.A.), refd to. [para. 20].

Ontario (Solicitor General) et al. v. Information and Privacy Commission (Ont.) et al. (2001), 148 O.A.C. 236; 55 O.R.(3d) 355 (C.A.), refd to. [para. 22].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 31].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 36].

Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.) (1998), 112 O.A.C. 121; 41 O.R.(3d) 464 (C.A.), refd to. [para. 39].

Boeing Co. v. Ontario (Minister of Economic Development and Trade) et al. (2005), 200 O.A.C. 134 (Div. Ct.), refd to. [para. 48].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 17(1) [para. 43]; sect. 65(6)3 [para. 18]; sect. 65(7)1 [para. 19].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 23].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 3 [para. 24]; 162 [para. 30]; 262 [para. 33].

Counsel:

Domenic A. Crolla and Maureen L. Murphy, for the applicant, The Canadian Medical Protective Association;

Robert L. Lee and Jennifer L. Gold, for the applicant, The Ontario Medical Association;

Christopher D. Bredt and Katherine J. Menear, for the respondent, Daphne Loukidelis, adjudicator;

Lise G. Favreau, for the respondent, Ministry of Health and Long-Term Care.

These applications were heard in Toronto, Ontario, on June 16 and 17, 2008, by Lederman, Kiteley and Swinton, JJ., of the Ontario Divisional Court. Lederman and Swinton, JJ., released the following decision, for the court, on September 9, 2008.