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Cabinet privilege

Ontario

,

Canada

Cabinet Privilege In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74, at issue in the appeal was whether the public was entitled to access the mandate letters provided to Cabinet ministers by the Premier of Ontario following the formation of the new government after the 2018 provincial election. Procedural History A journalist with the CBC had requested access to the 23 letters sent by the newly elected Premier, Doug Ford, to Ontario’s Cabinet ministers who, together with him, comprised the Executive Committee, commonly known as the Cabinet. Cabinet Office refused the CBC’s request. The CBC appealed the refusal to the Information and Privacy Commissioner of Ontario (the “IPC”).Mediation did not resolve the issues and so the parties proceeded to the adjudication stage, where they engaged in a lengthy process of written submissions. The Cabinet Office opposed disclosure of the letters on the basis of the Cabinet privilege exemption under s. 12(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). By Order PO–3973; Cabinet Office (Re), [2019] O.I.P.C. No. 155, the Commissioner, Brian Beamish, ordered the letters to be disclosed to the requester, the CBC. The Divisional Court dismissed the Attorney General for Ontario’s application for judicial review of the IPC Order, who now appeals to this court. Appeal Dismissed Section 12 of FIPPA states that a head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees. The IPC accepted that, where a record discloses deliberations by the Premier, this record may be exempted under s. 12(1). In other words, IPC recognized the distinct role of the Premier in relation to Cabinet. But the IPC rejected the AGO’s view of the deliberative process as unduly broad.On this point, the IPC found on the record before him that the “disclosure of the policy initiatives in the mandate letters would not provide any insight into the deliberative considerations or consultative process by which the Premier arrived at them.”The Court of Appeal agreed with the IPC and the Divisional Court. The scheduling book at issue in Order PO-1725, which the IPC agreed ought not be disclosed, was far closer to the Premier’s deliberative process than the letters at issue in this case. The scheduling book contained references to particular Bills or pending legislation, and more generalized references to possible programs and initiatives. It was apparent that the IPC applied s. 12(1) in Order PO-1725 because the scheduling book revealed the thoughts and opinion of the Premier and, consequently, Cabinet.Conversely, the letters were the culmination of that deliberative process. While they highlighted the decisions the Premier ultimately made, they did not shed light on the process used to make those decisions, or the alternatives rejected along the way. Accordingly, the letters did not threaten to divulge Cabinet’s deliberative process or its formulation of policies.The Court of Appeal held that the application of s. 12(1) by the IPC to the letters was reasonable, and the Divisional Court committed no error in so finding.The AGO argued that the IPC’s reference to the “public interest” as a balancing factor, relying in part on the Nova Scotia Court of Appeal in O’Connor v. Nova Scotia, 2001 NSCA 132, 197 N.S.R. (2d) 154, constituted a reversible error.The Court of Appeal disagreed.The IPC did not inject a new balancing test into the analysis of s. 12(1). Rather, the IPC, relying on O’Connor, recognized that s. 12(1) itself strikes a balance between a citizen’s right to know what government is doing and a government’s right to consider what it might do behind closed doors. The Court, at para. 1 in O’Connor, stated that this context calls for an interpretation of FIPPA that attempts to balance these two public rights. Where there is substantial evidence that the records at issue would reveal Cabinet deliberations, the reference to the balance reflected in FIPPA is appropriate.The Court of Appeal found no error in the IPC’s reference to these general observations by the Nova Scotia Court of Appeal in O’Connor as part of its analysis. His reference focused on the Court of Appeal’s analysis linking the records at issue with the substance of deliberation. That is exactly the thrust of the opening words exception in s. 12(1).

April 14, 2022
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74 (CanLII)