Ontario (Minister of Finance) v. Smith et al., (2014) 320 O.A.C. 135 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 06, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 320 O.A.C. 135 (SCC);2014 SCC 36;[2014] 2 SCR 3;457 NR 40;[2014] ACS no 36;373 DLR (4th) 601

Ont. v. Smith (2014), 320 O.A.C. 135 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] O.A.C. TBEd. MY.031

John Doe, Requester (appellant) v. Minister of Finance for the Province of Ontario (respondent)

Information and Privacy Commissioner of Ontario (Diane Smith, Adjudicator) (appellant) v. Minister of Finance for the Province of Ontario (respondent) and Attorney General of Canada, Attorney General of British Columbia, Information and Privacy Commissioner of Alberta, Freedom of Information and Protection of Privacy Commissioner [Review Officer] for Nova Scotia, Information and Privacy Commissioner of Prince Edward Island, British Columbia Freedom of Information and Privacy Association, Information and Privacy Commissioner of British Columbia and Canadian Civil Liberties Association (interveners)

(34828; 2014 SCC 36; 2014 CSC 36)

Indexed As: Ontario (Minister of Finance) v. Smith et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.

May 9, 2014.

Summary:

The Minister of Finance for Ontario appealed from an Ontario Divisional Court decision that upheld, except in one respect, the decision of an Adjudicator under the Freedom of Information and Protection of Privacy Act (Act) to release the requested records to the requester. See [2011] O.A.C. Uned. 251. The records related to advice to the Minister leading up to a decision by the Minister about the effective date of certain amendments to s. 2 of the Corporations Tax Act. The case turned on s. 13(1) of the Act, which gave the Minister, as head of the institution, the discretion to refuse to disclose a record "where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by the institution." In holding that the documents had to be disclosed the Adjudicator relied upon two Ontario Court of Appeal decisions.

The Ontario Court of Appeal, in a decision reported at 289 O.A.C. 61, allowed the appeal, set aside the decisions of the Divisional Court and the Adjudicator and remitted the matter to the Information and Privacy Commissioner to reconsider the requester's application in light of the court's reasons. The court held that in deciding to release the requested records, the Adjudicator misinterpreted and misapplied the court's decisions, resulting in an unreasonable decision. The court made no order for costs. The requester appealed.

The Supreme Court of Canada dismissed the appeal.

Crown - Topic 7208

Examination of public documents - Freedom of information - Bars - Advice or recommendations by public servants - The requester sought disclosure of drafts of policy options for purposes of a decision as to when amendments to Ontario legislation to eliminate a loophole for tax haven corporations should take effect, in particular, to what extent the amendment should have retroactive effect - At issue was whether policy options such as these constituted advice or recommendations, thus qualifying them for exemption from disclosure under s. 13(1) of the Freedom of Information and Protection of Privacy Act - The Supreme Court of Canada answered the question in the affirmative - "The policy options in the Records in this case present both an express recommendation against some options and advice regarding all the options. Although only a small section of each Record recommends a preferred course of action for the decision maker to accept or reject, the remaining information in the Records sets forth considerations to take into account by the decision maker in making the decision. The information consists of the opinion of the author of the Record as to advantages and disadvantages of alternative effective dates of the amendments. It was prepared to serve as the basis for making a decision between the presented options. These constitute policy options and are part of the decision-making process. They are 'advice' within the meaning of s. 13(1)" - See paragraphs 19 to 47.

Crown - Topic 7208

Examination of public documents - Freedom of information - Bars - Advice or recommendations by public servants - The Supreme Court of Canada stated that "A recommendation, whether express or inferable, is still a recommendation. 'Advice' must have a distinct meaning. I agree with Evans J.A. in 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 ..., that in exempting 'advice and recommendations' from disclosure, the legislative intention must be that the term 'advice' has a broader meaning than the term 'recommendations' ... Otherwise, it would be redundant." - See paragraph 24.

Crown - Topic 7208

Examination of public documents - Freedom of information - Bars - Advice or recommendations by public servants - Section 13(1) of the Information and Protection of Privacy Act gave the head of an institution the discretion to refuse to disclose a record "where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by the institution." - The Supreme Court of Canada held that a record did not need to be communicated in order for s. 13(1) to apply - "Protection from disclosure would indeed be illusory if only a communicated document was protected and not prior drafts. It would also be illusory if drafts were only protected where there is evidence that they led to a final, communicated version. In order to achieve the purpose of the exemption, to provide for the full, free and frank participation of public servants or consultants in the deliberative process, the applicability of s. 13(1) must be ascertainable as of the time the public servant or consultant prepares the advice or recommendations. At that point, there will not have been communication. Accordingly, evidence of actual communication cannot be a requirement for the invocation of s. 13(1). Further, it is implicit in the job of policy development, whether by a public servant or any other person employed in the service of an institution or a consultant retained by the institution, that there is an intention to communicate any resulting advice or recommendations that may be produced. Accordingly, evidence of an intention to communicate is not required for s. 13(1) to apply as that intention is inherent to the job or retainer." - See paragraphs 48 to 51.

Crown - Topic 7208

Examination of public documents - Freedom of information - Bars - Advice or recommendations by public servants - The Supreme Court of Canada held that the word "advice" in s. 13(1) of the Freedom of Information and Protection of Privacy Act included opinions of a public servant as to the range of alternative policy options - The court held that this accorded with the balance struck by the legislature between the goal of preserving an effective public service capable of producing full, free and frank advice and the goal of providing a meaningful right of access - See paragraph 46.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Minister of Finance for Ontario appealed from a Divisional Court decision that upheld, except in one respect, the decision of an Adjudicator under the Freedom of Information and Protection of Privacy Act (Act) to release the requested records to the requester - The Court of Appeal allowed the appeal, set aside the decisions of the Divisional Court and the Adjudicator and remitted the matter to the Information and Privacy Commissioner (IPC) - The requester appealed - The Supreme Court of Canada stated that "The parties agree, and the case law supports, that the applicable standard of review is reasonableness." - The court held that "The IPC is owed deference in interpreting and applying its enabling statute ..." - See paragraph 17.

Statutes - Topic 2266

Interpretation - Presumptions and rules in aid - Against legislative redundancy - [See second Crown - Topic 7208 ].

Words and Phrases

Advice - The Supreme Court of Canada discussed the meaning of this word as found in s. 13(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31 - See paragraphs 20 to 46.

Words and Phrases

Recommendations - The Supreme Court of Canada discussed the meaning of this word as found in s. 13(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31 - See paragraph 23.

Cases Noticed:

Ontario (Minister of Transportation) v. Cropley et al. (2005), 202 O.A.C. 379 (C.A.), refd to. [para. 8].

Ontario (Minister of Northern Development and Mines) v. Information and Privacy Commissioner (Ont.) et al. (2005), 203 O.A.C. 30 (C.A.), refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 17].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 17].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 17].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 18].

3430901 Canada Inc. et al. v. Canada (Minister of Industry), [2002] 1 F.C. 421; 282 N.R. 284; 2001 FCA 254, apprvd. [para. 24].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 37].

Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245; 168 F.T.R. 49 (T.D.), apprvd. [para. 44].

Osborne, Millar and Barhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 45].

Ontario Public Service Employees Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 45].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 12(1)(b) [para. 35, Appendix]; sect. 13(1) [para. 7, Appendix]; sect. 13(2) [para. 29, Appendix]; sect. 23 [para. 37, Appendix].

Authors and Works Noticed:

Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People (Williams Commission Report) (1980), generally [para. 37]; pp. 289, 290 [para. 43].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th ed. 2008), pp. 1 [para. 18]; 419 [para. 40]; 612 to 614 [para. 36].

Williams Commission Report - see Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People.

Counsel:

Alex D. Cameron, Alan M. Schwartz, Q.C., and Kevin H. Yip, for the appellant, John Doe;

William S. Challis, for the appellant, the Information and Privacy Commissioner of Ontario;

Sara Blake, Malliha Wilson and Kisha Chatterjee, for the respondent;

Sharlene M. Telles-Langdon, for the intervener, the Attorney General of Canada;

Richard M. Butler and John Tuck, for the intervener, the Attorney General of British Columbia;

Jillian Harker, for the interveners, the Information and Privacy Commissioner of Alberta, the Freedom of Information and Protection of Privacy Commissioner [Review Officer] for Nova Scotia and the Information and the Privacy Commissioner of Prince Edward Island;

Brent B. Olthuis and Andrea A. Glen, for the intervener, the British Columbia Freedom of Information and Privacy Association;

Nitya Iyer, for the intervener, the Information and Privacy Commissioner of British Columbia;

Ryder Gilliland and Nickolas Tzoulas, for the intervener, the Canadian Civil Liberties Association.

Solicitors of Record:

Fasken Martineau DuMoulin, Toronto, Ontario, for the appellant, John Doe;

Information and Privacy Commissioner of Ontario, Toronto, Ontario, for the appellant, the Information and Privacy Commissioner of Ontario;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Winnipeg, Manitoba, for the intervener, the Attorney General of Canada;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Office of the Information and Privacy Commissioner of Alberta, Edmonton, Alberta, for the interveners, the Information and Privacy Commissioner of Alberta, the Freedom of Information and Protection of Privacy Commissioner [Review Officer] for Nova Scotia and the Information and Privacy Commissioner of Prince Edward Island;

Hunter Litigation Chambers, Vancouver, British Columbia, for the intervener, the British Columbia Freedom of Information and Privacy Association;

Lovett Westmacott, Vancouver, British Columbia, for the intervener, the Information and Privacy Commissioner of British Columbia;

Blake, Cassels& Graydon, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association.

This case was heard November 6, 2013, by McLachlin,  C.J.C.,   LeBel,  Abella,  Rothstein, Cromwell, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. Rothstein, J., delivered the following decision for the court in both official languages on May 9, 2014.