Fuda v. Privacy Commr., (2003) 174 O.A.C. 174 (DC)

• Judge: Lang, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 24, 2003
• Jurisdiction: Ontario
• Citations: (2003), 174 O.A.C. 174 (DC)

Fuda v. Privacy Commr. (2003), 174 O.A.C. 174 (DC)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JL.026

Salvatore (Sam) Fuda v. Information and Privacy Commissioner of Ontario and Toronto Police Service

Salvatore (Sam) Fuda v. Information and Privacy Commissioner of Ontario and Minister of Finance

(Nos. 796/01 and 797/01)

Indexed As: Fuda v. Information and Privacy Commissioner (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lang, J.

July 4, 2003.

Summary:

Fuda was a businessman who, although no charges were ever laid, was subject to al­legations that he was involved in organized crime. To determine the source of the al­legations against him and to correct the information, Fuda requested access to per­sonal information about him in the posses­sion of the Ministry of Finance (Ontario Securities Commission) (OSC) and the Toronto Police Service (Police). Fuda's requests proceeded under the Freedom of Information and Protection of Privacy Act (Ont.), for the OSC information, and the Municipal Freedom of Information and Protection of Privacy Act (Ont.), for the Police information.

The OSC and the Police refused to disclose certain information. Fuda complained to the Information and Privacy Commissioner of Ontario under the provisions of both Acts.

The Commissioner ordered limited dis­closure of OSC records. He refused to order disclosure of Police records, but ordered the Police to disclose whether such records exist. Fuda applied for judicial review. The Com­missioner moved under s. 137(2) of the Courts of Justice Act (Ont.) for an order sealing part of the Commissioner's record in these applications for judicial review. The sealing order was not opposed but an issue arose as whether Fuda's counsel should be permitted access to the sealed part of the record (the private record) upon providing an undertaking not to disclose its contents to anyone, including Fuda. Fuda's counsel sought access so that he could properly prepare for the judicial review of the Com­missioner's decision.

The Ontario Divisional Court, per Lang, J., ordered that the Commissioner provide access to the private record to Fuda's coun­sel upon the signing of an undertaking not to disclose. The court expanded the form of undertaking so that the relevant counsel agreed not to act for their client in any other outstanding or subsequent proceeding arising out of the information.

Crown - Topic 7146

Examination of public documents - Office of commissioner - Investigative powers - Ruling on an application for judicial re­view of decisions by the Information and Privacy Commissioner of Ontario, the Ontario Divisional Court, per Lang, J., stated that in performing his or her legis­lative function, a municipal or provincial Commissioner was performing an in­quisitorial function that, by legislation, did not mandate a public hearing - See para­graph 28.

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal information - [See Crown - Topic 7288 ].

Crown - Topic 7241

Examination of public documents - Free­dom of information - Judicial review and appeals - General - The Information and Privacy Commissioner of Ontario upheld, with certain changes, the refusal by the Ontario Securities Commission and the Toronto Police Service to disclose certain personal information requested by Fuda - Fuda applied for judicial review - By consent, part of the Commissioner's record (the private record) was ordered sealed - Fuda's counsel sought access to the private record, upon giving an undertaking not to disclose, so that he could properly prepare for the judicial review - The Ontario Divi­sional Court, per Lang, J., in allowing counsel's request for access, stated: "A balancing is needed; a balancing between, on the one hand, ensuring that a court operating in an adversarial context has the benefit of full and informed submissions, and, on the other hand, ensuring that high­ly sensitive information is not improperly accessed, particularly where such access would cause harm to uninvolved third parties" - See paragraphs 28 to 35.

Crown - Topic 7288

Examination of public documents - Free­dom of information - Practice - Access by counsel to confidential information - The Information and Privacy Commissioner of Ontario upheld, with certain changes, the refusal by the Ontario Securities Commis­sion and the Toronto Police Service to disclose certain personal information re­quested by Fuda - Fuda applied for judicial review - By consent, part of the Commis­sioner's record (the private record) was ordered sealed - Fuda's counsel sought access to the private record, upon giving an undertaking not to disclose, so that he could properly prepare for the judicial review - The Ontario Divisional Court, per Lang, J., allowed counsel's request for access where: (1) most of the information was dated; (2) counsel had little informa­tion about the types of documents in­volved; (3) concerns about disclosure of surveillance techniques and information about the source of sensitive information were not sufficient to preclude the limited disclosure requested here; and (4) limited disclosure here would not have a "chilling effect" on other investigations.

Cases Noticed:

MacIntyre v. Nova Scotia (Attorney Gen­eral) and Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 8].

887574 Ontario Inc. v. Pizza Pizza Ltd., [1994] O.J. No. 3112 (Gen. Div.), leave to appeal refused, [1995] O.J. No. 1645 (C.A.), refd to. [para. 8].

P.S. v. D.C. (1987), 22 C.P.C.(2d) 225 (Ont. H.C.), refd to. [para. 9].

Ontario (Attorney General) v. Information and Privacy Commissioner (Ont.), [1998] O.J. No. 5015 (Div. Ct.), refd to. [para. 11].

Gravenhurst (Town) v. Information and Privacy Commissioner (Ont.) (1993), 13 O.R.(3d) 531 (Div. Ct.), refd to. [para. 12].

Ontario (Attorney General) v. Hale (1995), 85 O.A.C. 229 (Div. Ct.), refd to. [para. 12].

Workers Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.) (1995), 23 O.R.(3d) 31 (Div. Ct.), revd. (1998), 112 O.A.C. 121; 41 O.R.(3d) 464 (C.A.), refd to. [para. 12].

N.E.I. Canada Ltd. v. Information and Privacy Commissioner (Ont.) (1990), 40 O.A.C. 77 (Div. Ct.), refd to. [para. 13].

Rubin v. Information and Privacy Com­missioner (Ont.), [1991] O.J. No. 3562, refd to. [para. 13].

Maislin Industries Ltd. v. Minister for Industry, Trade and Commerce, Regional Economic Expansion (1984), 10 D.L.R.(4th) 417 (F.C.T.D.), refd to. [para. 14].

Bland v. National Capital Commission et al. (1988), 20 F.T.R. 236 (T.D.), refd to. [para. 14].

Information Commissioner (Can.) v. Cana­da (Minister of Industry) (1999), 166 F.T.R. 299 (T.D.), refd to. [para. 14].

Ruby v. Royal Canadian Mounted Police et al. (2002), 295 N.R. 353; 219 D.L.R.(4th) 385 (S.C.C.), consd. [para. 20].

Fuda v. Royal Canadian Mounted Police et al. (2003), 228 F.T.R. 274 (T.D.), refd to. [para. 23].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 30].

Pocklington Foods Inc. v. Alberta (Pro­vincial Treasurer), [1993] 5 W.W.R. 710; 135 A.R. 363; 33 W.A.C. 363 (C.A.), refd to. [para. 30].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 30].

Hunter v. Canada (Minister of Consumer and Corporate Affairs), [1991] 3 F.C. 186; 127 N.R. 214 (F.C.A.), consd. [para. 33].

Hunter v. Canada (Minister of Consumer and Corporate Affairs) (1990), 35 F.T.R. 75 (T.D.), refd to. [para. 33].

Counsel:

John Swaigen, for the Information and Privacy Commissioner, moving party;

Kim Mullin, for Salvatore (Sam) Fuda, applicant/responding party;

Darrel A. Smith, for the Toronto Police Service, respondent;

Sara Blake, for the Attorney General for Ontario, intervenor;

Alexandra Clark, for the Ministry of Fi­nance, respondent.

This application was heard at Toronto, Ontario, on June 24, 2003, by Lang, J., of the Ontario Divisional Court, who delivered the following decision on July 4, 2003.