BC FIPA Intervener’s Factum in SCC 34828 (appeal from 2012 ONCA 125)

BC FIPA’s intervener’s factum in SCC 34828 (case docket at SCC website).  BC FIPA takes the position that greater deference to the adjudicative tribunal should have been taken by the lower court and that

“access to information legislation, such as in Ontario and British Columbia, fulfils a particularly critical role in nourishing our democracy. It creates specialized tribunals, which are independent of government, yet which enjoy quantitative and qualitative experience with the workings of government. The Commissioners are officers of the legislature and are undeniably expert as concerns the interpretation and application of the various exceptions to access rights.”

Download Factum (pdf).

This is an appeal from an Ontario Court of Appeal decision: Ontario (Finance) v. Ontario (Information and Privacy Commissioner), 2012 ONCA 125 (CanLII) and from Ontario Supreme Court decision: Minister of Finance (Ont.) v. Smith, 2011 ONSC 2030 (CanLII).

Headnote from the ONCA decision (CanLII):

Administrative law — Freedom of information — Exemptions to disclosure — Advice or recommendations of public servant — Adjudicator erring in finding that s. 13(1) of Freedom of Information and Protection of Privacy Act only applies where there is evidence that information in records actually went to final decision-maker and only applies to suggestion of single course of action ultimately adopted or rejected by decision maker — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 13(1).

The requestor sought records relating to advice to the Minister of Finance leading up to a decision by the Minister about the effective date of certain amendments to s. 2 of the Corporations Tax Act, R.S.O. 1990, c. C.40. The adjudicator held that [page758] s. 13(1) of the Freedom of Information and Protection of Privacy Act, which gives the Minister 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”, did not apply and that the requested documents should be released. The Divisional Court upheld that decision (except in one respect). The Minister appealed.

Held, the appeal should be allowed.

The adjudicator made two fundamental errors in her interpretation of s. 13(1) of the Act which led to an unreasonable decision. The first error was in holding that there must be evidence that the information in the records actually went to the final decision-maker. Section 13(1) protects the deliberative process. Advice and recommendations in drafts of policy papers that are part of the deliberative process leading to a decision are protected by s. 13(1). The evidence in this case was overwhelming that all of the records sought were part of the deliberative process that led to a decision by the Minister, based on the advice and recommendations in the records. The second error was in holding that s. 13 only applies to the suggestion of a single course of action ultimately adopted or rejected by the decision maker. Such an interpretation would denude s. 13(1) of any real meaning and was unreasonable.