SCC to address cabinet records exemption in Ontario’s Freedom of Information statute

Case deals with Premier Doug Ford's refusal to grant CBC access to his cabinet mandate letters

SCC to address cabinet records exemption in Ontario’s Freedom of Information statute
Justin Safayeni, Stockwoods

The Supreme Court of Canada is hearing a case addressing the cabinet records exemption in Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) next week.

The case will set the scope of the exemption and determine how powerful a tool it will be for the government to prevent documents from being disclosed in the future, says Justin Safayeni, a partner at Stockwoods and counsel for the CBC, which is a respondent in the case.

“The approach that's taken to this cabinet records exemption could have real implications for how robust Ontario's access to information regime is,” he says. “The appellant, [the Attorney General of Ontario], has proposed quite a broad reading of the exemption. If that takes root, it could be much more difficult for the media or the public to get their hands on government records.”

The SCC is scheduled to hear Attorney General for Ontario v. Information and Privacy Commissioner of Ontario, et al., on Tuesday, April 18, at 9:30 am.

A spokesperson from the Ontario Ministry of the Attorney General, speaking on behalf of Crown counsel, declined Law Times’ request for comment, saying that as the matter is before the courts, it would be inappropriate to do so.

In 2018, the CBC filed a freedom of information request for 23 mandate letters Ontario Premier Doug Ford sent his cabinet following the 2018 election. Mandate letters are instructions from the premier delineating the objectives and priorities the minister will focus on over the next term.

Ontario denied access, arguing the letters were protected by the cabinet records exemption under s. 12(1) of FIPPA.

In July 2019, the Information and Privacy Commissioner of Ontario found that the mandate letters were not protected by the exemption and ordered the Cabinet Office to disclose them to the CBC. The Attorney General for Ontario applied for judicial review but was denied by a unanimous Divisional Court in August 2020. A split Court of Appeal confirmed the ruling, and the AG appealed to the Supreme Court of Canada.

Ontario argues that disclosing the mandate letters would “reveal the substance of deliberations and deliberative process of the Premier and Cabinet.” The AG says the Cabinet Office relied on “the opening words” of the exemption under s. 12(1), which allows refusal of disclosure “where the disclosure would reveal the substance of deliberations of the Executive Council or its committees.”

Ontario argues that the IPC took a “narrow and restrictive approach” that was “unreasonable and inconsistent with the purposes of the Act and Exemption.” A broad protection of communication between cabinet ministers on “matters of policy development and decision-making” is essential to cabinet’s proper functioning and was what the legislature intended. The IPC’s interpretation will “fundamentally change” how cabinet ministers communicate with each other, says Ontario.

The cabinet records exemption is used frequently, and is powerful once invoked because there is no way to override it or balance it against the public interest, says Safayeni.

The case also has significance for administrative law; around reviewing the decisions of administrative decision-makers, he says.

“This case also raises that issue very squarely. How do you review the IPC decision as a review in court? How much deference are you going to give to it? And what does a reasonableness review look like in this context?”

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