Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.), (1998) 112 O.A.C. 121 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: September 03, 1998
• Jurisdiction: Ontario
• Citations: (1998), 112 O.A.C. 121 (CA);1998 CanLII 7154 (NS CA);1998 CanLII 7154 (ON CA);41 OR (3d) 464;164 DLR (4th) 129;82 CPR (3d) 166;9 Admin LR (3d) 224;[1998] CarswellOnt 3445;[1998] OJ No 3485 (QL);112 OAC 121

WCB v. Privacy Commr. (1998), 112 O.A.C. 121 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. SE.017

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

And In The Matter of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31

And In The Matter of order P-373 (Appeals P-910306, P-910307, P-910308, P-910309 and P-910310) of the Assistant Information and Privacy Commissioner (Ontario), dated November 24, 1992

Workers' Compensation Board (applicant/respondent in appeal) v. Tom Mitchinson, Assistant Information and Privacy Commissioner (Ontario) (respondent/appellant) and Attorney General of Ontario (intervener)

(C22695)

Indexed As: Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.)

Ontario Court of Appeal

Osborne and Labrosse, JJ.A. and Blair, J.(ad hoc)

September 3, 1998.

Summary:

The Assistant Information and Privacy Commissioner directed the Workers' Com­pensation Board to release five records pursuant to a request made under the Free­dom of Information and Protection of Pri­vacy Act. The Workers' Compensation Board applied for judicial review, seeking to quash the order.

The Ontario Divisional Court, in a decision reported 85 O.A.C. 43, allowed the applica­tion and quashed the decision. The Commis­sioner appealed. The WCB cross-appealed.

The Ontario Court of Appeal allowed the appeal, set aside the Divisional Court's decision, restored the Commissioner's deci­sion and dismissed the cross-appeal.

Crown - Topic 7206.1

Examination of public documents - Free­dom of information - Bars - Tax infor­ma­tion - The Assistant Information and Pri­vacy Commissioner ordered the Workers' Compensation Board (WCB) to release records containing: (1) the names, addresses and amounts of surcharge, pen­alty or fine for the 50 companies with the highest penalty ratings for 1991 under three WCB programmes; and (2) the names and addresses of the 50 companies with the highest penalties, fines or penalty ratings for 1990 under two other WCB programmes - The Commissioner found that the records were not exempt from disclosure under s. 17(2) of the Freedom of Information and Protection of Privacy Act, which exempted information "obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax" - The Ontario Court of Appeal affirmed that WCB assessments were not a "tax" and s. 17(2) clearly did not apply - See paragraphs 29 to 39.

Crown - Topic 7207

Examination of public documents - Free­dom of information - Bars - Confidential­ity - The Assistant Information and Privacy Commissioner ordered the Workers' Com­pensation Board (WCB) to release records containing: (1) the names, addresses and amounts of surcharge, penalty or fine for the 50 companies with the highest penalty ratings for 1991 under three WCB pro­grammes; and (2) the names and addresses of the 50 companies with the highest pen­alties, fines or penalty ratings for 1990 under two other WCB programmes - The Commissioner found that the records were not exempt on the basis of confidentiality - The Ontario Court of Appeal affirmed the Commissioner's decision where it was not unreasonable - See paragraphs 19 and 28.

Crown - Topic 7214.1

Examination of public documents - Free­dom of information - Bars - Commercial, financial or labour relations information - The Assistant Information and Privacy Commissioner ordered the Workers' Com­pensation Board (WCB) to release records containing the names and addresses of the 50 companies with the highest penalties, fines or penalty ratings for 1990 under two WCB programmes - The Commissioner concluded that because the records con­tained only the names and addresses of employers, they were not commercial, financial or labour relations information or trade secrets and were not exempt from disclosure under s. 17(1) of the Freedom of Information and Protection of Privacy Act - The Ontario Court of Appeal af­firmed the Commissioner's decision where it was not unreasonable - See para­graphs 19 and 28.

Crown - Topic 7220.04

Examination of public documents - Free­dom of information - Bars - Reasonable expectation of probable harm - The Assist­ant Information and Privacy Commissioner ordered the Workers' Compensation Board to release information respecting the safety records of certain companies - The Com­missioner concluded that the records were not exempt from disclosure under the Freedom of Information and Protection of Privacy Act, s. 17(1)(a) or 17(1)(c) - The Commissioner stated that parties resisting disclosure "must present evidence that is detailed and convincing, and must describe a set of facts and circumstances that could lead to a reasonable expectation that one or more harms described in s. 17(1) would occur" - The Ontario Court of Appeal stated that the Commissioner did not act unreasonably - The words "detailed and convincing" simply described the quality of evidence required to satisfy the onus of establishing reasonable expectation of harm - See paragraphs 19 to 28.

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - The Assistant Infor­mation and Privacy Commissioner directed the Workers' Compensation Board to release five records pursuant to a request made under the Freedom of Information and Protection of Privacy Act - The WCB applied for judicial review - The Ontario Divisional Court applied a patently unrea­sonable test - The Ontario Court of Appeal concluded that appropriate standard of review of the Commissioner's decision in this case was simple reasonableness - See paragraphs 9 to 18.

Workers' Compensation - Topic 1141

Boards - Disclosure of information - General - [See Crown - Topic 7206.1 , Crown - Topic 7207 and Crown - Topic 7214.1 ].

Cases Noticed:

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.), refd to. [para. 10].

Doe et al. v. Information and Privacy Commissioner (Ont.) (1993), 64 O.A.C. 248; 13 O.R.(3d) 767 (Div. Ct.), refd to. [para. 10].

Ontario (Attorney General) v. Fineberg (Inquiry Officer) (1994), 73 O.A.C. 311; 19 O.R.(3d) 197 (Div. Ct.), refd to. [para. 10].

Toronto (City) v. Information and Privacy Commissioner (Ont.) (1995), 86 O.A.C. 368 (Div. Ct.), refd to. [para. 10].

Board of Education of Toronto v. Burk et al. (1996), 90 O.A.C. 315 (Div. Ct.), refd to. [para. 10].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 11].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 11].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140; 102 D.L.R.(4th) 402, refd to. [para. 17].

Ontario (Attorney General) v. Information and Privacy Commissioner (Ont.) et al. (1997), 101 O.A.C. 140; 34 O.R.(3d) 611 (C.A.), dist. [para. 18].

Massey-Ferguson Industries Ltd. et al. v. Saskatchewan, [1981] 2 S.C.R. 413; 39 N.R. 308, appld. [para. 30].

Workmen's Compensation Board v. Cana­dian Pacific Railway Co. (1919), 48 D.L.R. 218 (B.C.P.C.), refd to. [para. 32].

Royal Bank v. Workmans' Compensation Board (N.S.), [1936] 4 D.L.R. 9 (S.C.C.), refd to. [para. 32].

Ontario Cancer Treatment and Research Foundation v. Ottawa (City) et al. (1998), 106 O.A.C. 253; 38 O.R.(3d) 224 (C.A.), refd to. [para. 38].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 10(1), sect. 17(1)(a), sect. 17(1)(c), sect. 17(2), sect. 23 [para. 4].

Counsel:

William S. Challis and David S. Goodis, for the appellant;

J. Thomas Curry and Tacho M.J. Manson, for the interveners, Employers' Advo­cacy Council, Canadian Manufacturers' Association and Council of Ontario Con­struction Associations;

Leslie M. McIntosh, for the intervener, Attorney General of Ontario;

Jeff G. Cowan, for the respondent, Workers' Compensation Baord.

This appeal and cross-appeal were heard on April 15 and 16, 1998, before Osborne and Labrosse, JJ.A., and Blair, J.(ad hoc), of the Ontario Court of Appeal. Labrosse, J.A., released the follow­ing decision for the court on September 3, 1998.