John Doe v. Information and Privacy Commissioner (Ont.), (1993) 64 O.A.C. 248 (DC)

• Judge: Southey, Campbell and Dunnet, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 30, 1993
• Jurisdiction: Ontario
• Citations: (1993), 64 O.A.C. 248 (DC)

John Doe v. Privacy Commr. (1993), 64 O.A.C. 248 (DC)

MLB headnote and full text

In The Matter Of the Order P-237 of the Information and Privacy Commis­sioner, dated August 6, 1991;

And In The Matter Of Freedom of Information and Protection of Privacy Act, 1987, as amended;

And In The Matter Of the Judicial Review Procedure Act, R.S.O. 1990, c. J-1.

John Doe, James Doe, Jack Doe and George Doe (applicants) v. Information and Privacy Commissioner, Solicitor General of Ontario and Theodore Matlow (respondents)

(No. 525/91)

Indexed As: John Doe v. Information and Privacy Commissioner (Ont.)

Ontario Court of Justice

General Division

Divisional Court

Southey, Campbell and Dunnet, JJ.

June 30, 1993.

Summary:

The Ontario Provincial Police (OPP) in­vestigated four officers for fabrication of evidence and perjury at the suggestion of a judge. The OPP advised that it found no misconduct that would warrant charges. The judge sought a copy of the investigative report. The Solicitor General eventually decided to grant access to the entire report, except a small portion to protect the interests of an independent witness (Freedom of Information and Privacy Act, s. 21(3)(b)). The four officers objected to disclosure. The Information and Privacy Commissioner ordered disclosure. The four officers applied for judicial review of the decision.

The Ontario Divisional Court, Southey, J., dissenting, allowed the application, quashed the Commissioner's decision and ordered that access to the report be denied.

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference - [See Crown - Topic 7246 ].

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal information - An OPP investigative report contained personal information respecting four officers and was presumed under s. 21(3)(b) of the Freedom of Information and Protection of Privacy Act to be an unjustified invasion of personal privacy - The Ontario Divisional Court stated that disclosure was prohibited unless the pre­sumption was rebutted under s. 21(4) or where there was compelling public interest in disclosure (s. 23) - The court held that the Information and Privacy Commissioner erred in finding s. 21(2) could be applied to rebut the presumption - Where the presumption was not rebutted under s. 21(4) and there was no evidence of com­pelling public interest in disclosure, access to the report should have been denied - See paragraphs 55 to 63.

Crown - Topic 7215

Examination of public documents - Free­dom of information - Bars - Disclosure where public interest outweighs risk of harm - [See Crown - Topic 7206 ].

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - Curial deference - The Information and Privacy Commis­sioner ordered disclosure of information under the Freedom of Information and Protection of Privacy Act - Affected parties applied for judicial review - The Act contained no right of appeal and no privative or finality clause - The Ontario Divisional Court stated that "the manage­ment of information by the Commissioner is similar to the management of other commodities by other specialized tribunals which attracted curial deference by reason of the specialized nature of their work ... the Commissioner's decision, already pro­tected by the lack of any right of appeal, ought to be accorded a strong measure of curial deference even where the legislature has not insulated the tribunal by means of a privative clause" - The test on judicial review was whether the decision was patently unreasonable, not whether it was correct - See paragraphs 30 to 54.

Cases Noticed:

Keeprite Workers' Independent Union et al. v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), refd to. [para. 19].

Right to Life Association of Toronto and Area v. Metropolitan Toronto District Health Council et al. (1991), 53 O.A.C. 231; 86 D.L.R.(4th) 441 (Div. Ct.), appld. [para. 30].

Canada (Attorney General) v. Mossop (1993), 149 N.R. 1 (S.C.C.), refd to. [para. 30].

Ontario (Solicitor General) v. Mitchinson (1993), 64 O.A.C. 60 (Div. Ct.), refd to. [para. 34].

National Corn Growers Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81; 74 D.L.R.(4th) 449, refd to. [para. 34].

Canada (Attorney General) v. Public Ser­vice Alliance of Canada (1993), 150 N.R. 161 (S.C.C.), refd to. [para. 34].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [paras. 35, 51].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 35].

Dayco (Canada) Ltd. v. National Automo­bile, Aerospace and Agricultural Imple­ment Workers Union of Canada (CAW-Canada) (1993), 152 N.R. 1; 63 O.A.C. 1 (S.C.C.), refd to. [para. 36].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 37].

Canadian Pacific Ltd. v. Canadian Trans­port Commission (1987), 79 N.R. 13 (F.C.A.), refd to. [para. 38].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 39].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 1, sect. 2(1), sect. 4, sect. 14(1), sect. 14(2), sect. 21(1)(a), sect. 21(1)(e)(iii), sect. 21(1)(f), sect. 21(2), sect. 21(3), sect. 21(4)(a), sect. 21(5), sect. 23, sect. 24(1), sect. 50(1), sect. 50(4), sect. 51, sect. 52(1), sect. 52(2), sect. 52(3), sect. 52(4), sect. 52(8), sect. 52(9), sect. 52(10), sect. 52(13), sect. 52(14), sect. 53, sect. 54(1), sect. 54(2), sect. 54(3), sect. 54(4), sect. 56(1), sect. 58(1), sect. 58(2), sect. 59 [Appendix B].

Freedom of Information and Protection of Privacy Act, S.O. 1987, c. 25, sect. 28 [para. 6].

Metropolitan Toronto Police Force Com­plaints Act, S.O. 1984, c. 63, generally [para. 60].

Authors and Works Noticed:

Canadian Judicial Council, Commentaries on Judicial Conduct (1991), pp. 7, 86 [para. 58].

Counsel:

Ian Roland, for the applicants;

Donald J.M. Brown, Q.C., and Shemin Manji, for the respondent, Information and Privacy Commissioner;

Leah Price, for the Attorney General of Ontario.

This application was heard on March 17-18, 1993, before Southey, Campbell and Dunnett, JJ., of the Ontario Divisional Court.

On June 30, 1993, the judgment of the Divisional Court was released and the fol­lowing opinions were filed:

Campbell and Dunnet, JJ. - see para­graphs 1 to 64;

Southey, J., dissenting - see paragraphs 64 to 71.