Passing Schedules 16 and 20 of Bill 46 risks Ontarians’ access and privacy rights
The Information and Privacy Commissioner of Ontario has pushed back against the passage of Schedules 16 and 20 of Bill 46 (Protect Ontario by Cutting Red Tape Act, 2025) in a submission addressed to Laurie Scott, chair of the Legislative Assembly of Ontario’s standing committee on heritage, infrastructure and cultural policy.
Schedule 16 seeks to authorize the red tape reduction minister to obtain, use, and share personal information to facilitate public consultations regarding burdens or proposed instruments governed by the Modernizing Ontario for People and Businesses Act, 2020. Schedule 20 aims to grant the minister of the environment, conservation and parks the power to exclude information about Ontario’s producer responsibility waste diversion regime from right of access under the province’s freedom of information scheme.
Commissioner Patricia Kosseim wrote that the bill could infringe on Ontarians’ access and privacy rights under the Freedom of Information and Protection of Privacy Act.
In the ministry’s Ontario Regulatory Registry post, the proposed change to Schedule 16 would “supplement existing authorities under FIPPA, specifically section 38(2).”
She pointed out that section 38(2) limited overreach by permitting the government to collect only information that were specifically needed for lawfully authorized purposes.
“While the objective of facilitating public consultation is a very good thing, the breadth of personal information that might be collected under this provision is troubling,” Kosseim wrote in the submission. “Section 38(2) of FIPPA already permits institutions to collect personal information that is ‘necessary to the proper administration of a lawfully authorized activity.’ By creating a broad and explicit collection authority over and above section 38(2), government would be sidestepping the critical condition of ‘necessity’ that is the backstop to unbridled collection.”
She said the Ontario government had displayed a “concerning” trend of “creating such broadly-worded statutory authorities to collect personal information, instead of relying on the appropriate provisions already provided for in FIPPA.” She highlighted IPC submissions in relation to Bill 27’s (the Working for Workers Act, 2021) Schedule 4 and Bill 79 (the Working for Workers Act, 2023).
“It is particularly worrisome in Schedule 16, as the collection of personal information would be from people participating in public consultations -- an important component of a healthy democracy,” Kosseim wrote. “Giving the government carte blanche to decide what personal information individuals must share when they provide critical comment on government policies or programs is too high a price Ontarians have to pay for public participation.”
Meanwhile, Schedule 20 pitches reforms to the Resource Recovery and Circular Economy Act, 2016. Under these changes, the minister of the environment, conservation and parks can order the Resource Productivity and Recovery Authority to obtain specific information about the province’s producer responsibility waste diversion regime, such as contracts and agreements, correspondence, fees and costs, revenues, information about the operation of a waste disposal site or waste management system, and any other information specified by the minister.
The schedule also proposes a FIPPA override that leaves solely to the minister the decision of whether or not to grant access to the information collected, moving it beyond FIPPA’s access rights and independent oversight, per the submission. Kosseim said this would take away Ontarians’ right to access through a statutory override provision under a parallel law.
“FIPPA enshrines the public's right of access to government-held information. As a counterbalance to that right, FIPPA includes reasonable safeguards to protect commercial confidentiality and government economic interests,” Kosseim wrote. “In other words, FIPPA already protects records, including the ones referenced in Schedule 20, from disclosure, provided they legitimately meet the necessary criteria to shield them from public scrutiny.”
She pointed to Bill 212 (Reducing Gridlock, Saving You Time Act, 2024), which shielded records regarding priority highway projects from freedom of information requests.
“A statutory clause that categorically excludes from FIPPA an entire class of government-held records about Ontario’s waste management and resource recovery programs (or priority highway projects, in the case of Bill 212) is not a minor administrative change,” Kosseim wrote. “It is a significant erosion of a quasi-constitutional right, weakening one of the core transparency and accountability mechanisms Ontarians rely upon to participate in, and remain informed about, government activities and decision-making processes.”
She called on the Ontario government to reduce rather than create new barriers to information access.
