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Document
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PO-2028
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File #
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PA-010239-1
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Institution/HIC
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Ministry of Northern Development and Mines
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Summary
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NATURE OF THE APPEAL:
The Ministry of Northern Development and Mines (the Ministry) received a request under the
Freedom of Information and Protection of Privacy Act (the Act), for access to:
… records connected to Northern Ontario Heritage Fund project No. 17113,
involving a $1.5 million contribution to [an identified corporate third party] for the
calendar year 2000.
The requester went on to specify the particular types of information in more detail.
The Ministry initially provided a fee estimate decision, and the requester paid the fee. The
Ministry identified 28 responsive records and, after notifying the third party of the request and
receiving no response, the Ministry issued a decision to the requester, providing him with access
to 24 records in their entirety and portions of two other records.
The requester (now the appellant) appealed the Ministry’s decision to deny access to the four
remaining records and the undisclosed portions of the two partially released records.
As a result of mediation, all issues were resolved with the exception of the application of the
exemption in section 13 of the Act (advice or recommendations) to the undisclosed portions of
one record.
This appeal was transferred to the adjudication stage. I sent a Notice of Inquiry to the Ministry
initially, and received representations in response. I then sent the Notice to the appellant, along
with the Ministry’s representations. The appellant chose not to provide representations.
RECORD:
The only record that remains at issue in this appeal is Record 16, an Evaluation Report dated
February 25, 2000. Most of the record has already been disclosed to the appellant. The
undisclosed portions consist of two paragraphs under the heading “Potential Issues”, one on page
4 and the other on page 5; and a number of listed “Funding Options” on page 9 and the top
portion of page 10, together with pros and cons for each option.
DISCUSSION:
General
Section 13(1) of the Act reads:
A head may 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 an institution.
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[IPC Order PO-2028/June 28, 2002]
Interpretation of “advice or recommendations”
Introduction
In previous orders, this office has found that the words “advice” and “recommendations” have
similar meanings, and that in order to qualify as “advice or recommendations” in the context of
section 13(1), the information in question must reveal a suggested course of action that will
ultimately be accepted or rejected by its recipient during the deliberative process of government
policy-making and decision-making [see, for example, Orders P-118, P-348, P-883, P-1398 and
PO-1993]. In addition, adjudicators have found that advice or recommendations may be
revealed in two ways: (i) the information itself consists of advice or recommendations; or (ii) the
information, if disclosed, would permit one to accurately infer the advice or recommendations
given [see Orders P-1037 and P-1631].
Ministry’s submissions
The Ministry takes issue with this approach, and makes extensive representations on the
interpretation of the word “advice”, drawing particular attention to its relation to the word
“recommendations” as these words are used in section 13(1). The Ministry argues that “advice”
must be defined differently from “recommendation”. It states:
Since section 13(1) of the Act refers to “advice or recommendations” and one
must interpret statutes based on their actual words, the Ministry contends that
these terms must mean different things, or else there would be no need for two
terms instead of one. To give effect to all of the words of this provision, “advice”
must mean something different than “recommendation”.
Since the definition of “advice” includes a recommendation, the meaning of
advice in section 13(1) must mean something else. Webster’s Collegiate
Thesaurus lists the following for “advice”:
1. recommendation regarding a decision
2. news; information; intelligence
Related: direction, guidance, instruction, caution, warning
It is the Ministry’s position that “advice” includes information, notification,
cautions, or views where these relate to a government decision-making process,
the advice is communicated from government employees to a government
decision-maker and the decision-maker has the discretion to accept or reject the
advice in making the decision.
The Ministry contends that both advice and recommendations of government
employees need to be protected in order to protect the free flow of ideas and to
allow advisors to freely inform and caution decision-makers about matters that
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[IPC Order PO-2028/June 28, 2002]
need to be considered in rendering on a decision on particular course of action.
The Ministry also submits that recent orders of this office have narrowed the application of
section 13(1) “to the point where advice or recommendations are essentially the same thing”.
The Ministry continues:
This narrow interpretation also undermines the “purposive approach” to the
exemption that former Commissioner Linden applied and which the IPC still
quotes in its orders, which is to “protect the free flow of advice within the
deliberative process of government decision making.” Protection of only
specified suggested courses of action does not serve the stated purpose. Other
formats for providing necessary and frank advice are used in the deliberative
process that do not end with “you should do this”. The Ministry submits that the
disclosure of advice because of its format rather than its content defeats the
purpose of the exemption.
If information at issue is a government employee’s communication to a
government decision maker about matters that are relevant and that should be
considered in the deliberative process, surely this is the employee’s “advice” to
that decision maker.
Analysis
I do not accept the Ministry suggested interpretation of “advice or recommendations”, for a
number of reasons.
First, the Ministry’s submission flies in the face of a long line of jurisprudence from this office
that has been endorsed by the courts. Order P-118 is the seminal order on the interpretation of
section 13(1). In that early order, former Commissioner Sidney B. Linden stated:
The general purpose of the section 13 exemption has been discussed in Order 94
(Appeal Number 890137) released on September 22, 1989. At page 5, I stated
that:
... in my view, section 13 was not intended to exempt all
communications between public servants despite the fact that many
can be viewed, broadly speaking, as advice or recommendations.
As noted above, section 1 of the Act stipulates that exemptions
from the right of access should be limited and specific.
Accordingly, I have taken a purposive approach to the
interpretation of subsection 13(1) of the Act. In my opinion, this
exemption purports to protect the free flow of advice and
recommendations within the deliberative process of government
decision-making and policy-making.
. . . . .
In my view, “advice”, for the purposes of subsection 13(1) of the Act, must
contain more than mere information. Generally speaking, advice pertains to the
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[IPC Order PO-2028/June 28, 2002]
submission of a suggested course of action, which will ultimately be accepted or
rejected by its recipient during the deliberative process.
My interpretation of “advice” would appear to be consistent with the way in
which the word has been defined by the Quebec Commission d'accès à
l'information (the “Commission”) when interpreting a similar provision in its
legislation entitled, An Act respecting Access to documents held by public bodies
and the protection of personal information, R.S.Q. Chapter A-2.1. According to
an analysis by Dussault and Borgeat in Administrative Law, A Treatise, 2nd
Edition, Vol. 3, Carswell, 1989 at page 347 the Commission defined “advice” in
its decision in the case of J. v. Commission scolaire Jacques-Cartier (1985) 1
C.A.I. 82 as follows:
... advice is “an opinion expressed during debate”, the action of
debating being the fact of “studying in view of a decision to be
made”. Advice is thus not an opinion “that a person is made aware
of to keep him informed”, but rather “to invite that person to do or
not to do a certain thing”. Considering therefore, that advice
implies a decision-making process in progress, the Commission
concluded “advice is counsel or a suggestion as to a line of conduct
to adopt during the process. Logically, it takes place after research
and examination into the facts, i.e. study, has taken place” [Tr.].
In Order P-348, I applied the reasoning in Order P-118 and stated that the words “advice” and
“recommendations” should be “viewed in the same vein”.
This approach has been followed for several years and applied by a number of different
adjudicators in various contexts.
The Divisional Court reviewed my interpretation and application of section 13 in Order P-363,
and found that the interpretation was “amply supported by the legislation” [Ontario (Human
Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994),
Toronto Doc. 721/92]. The Divisional Court also considered this office’s interpretation and
application of section 13 in its review of Order P-883 in Ontario (Minister of Consumer and
Commercial Relations) v. Fineberg (December 21, 1995), Toronto Doc. 220/95, and commented:
… we are satisfied that the applicant has failed on either standard of review [i.e.
patent unreasonableness or a high standard of deference] and there is no reason to
interfere with the interpretation given by the [adjudicator] nor the results reached
in connection with the records relating to the sections outlined above.
The Court of Appeal for Ontario refused the Minister’s application for leave to appeal the
Divisional Court’s ruling in Ontario (Minister of Consumer and Commercial Relations) ([1996]
O.J. No. 1838 (C.A.)).
The purpose and scope of the section 13 exemption as interpreted by this office was also
implicitly endorsed by the Court of Appeal in the judicial review of Order P-1398 [Ontario
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[IPC Order PO-2028/June 28, 2002]
(Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C.
108 (C.A.), leave to appeal refused [1999] S.C.C.A. No. 134].
I should also touch briefly on the Ministry’s reference to previous orders that draw a parallel
between the word “avis” used in the French version of Quebec’s freedom of information
legislation, and whether this word should properly be translated as “advice” or “opinion”. The
Ministry takes the position that, because the French word “avis” is properly translated as
“opinion” rather than “advice”, former Commissioner Linden’s interpretation in Order P-118
(which has been applied in a number of subsequent orders) is incorrect. I do not accept the
Ministry’s position. The former Commissioner did not base his decision in Order P-118 on the
wording of the Quebec statute. Rather, he simply pointed to the similar language and
interpretation used in another jurisdiction as being consistent with his conclusion that “advice
must be more than mere information”. Moreover, the Ministry’s argument overlooks the fact
that the approach articulated by former Commissioner Linden acknowledges that “avis” means
“opinion”, albeit an opinion “expressed during debate”.
The Ministry states that recent orders of this office have narrowed the application of section
13(1) “to the point where advice and recommendations are essentially the same thing.” In my
view, the Ministry is incorrectly characterizing the application of a common interpretation to a
varied set of records and circumstances, as a change in interpretation. This office has
consistently interpreted “advice and recommendations” in a similar vein, and the fact that
different conclusions have been reached in various situations is no indication of a “narrowing” of
section 13(1).
The broad distinction between the meaning of the two words, as suggested by the Ministry, is not
consistent with the approach to the “advice and recommendations” exemption claim articulated
in Public Government for Private People: The Report of the Commission on Freedom of
Information and Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (the Williams
Commission). In discussing the policy rationale for including an exemption of this nature, which
is commonly present in freedom of information legislation, the Williams Commission stated, at
page 292:
A second point concerns the status of material that does not offer specific advice
or recommendations, but goes beyond mere reportage to engage in analytical
discussion of the factual material or assess various options relating to a specific
factual situation. In our view, analytical or evaluative materials of this kind do not
raise the same kinds of concerns as do recommendations. Such materials are not
exempt from access under the U.S. act, and it appears to have been the opinion of
the federal Canadian government that the reference to “advice and
recommendations” in Bill C-15 would not apply to material of this kind [16].
Similarly, the U.S. provision and the federal Canadian proposals do not consider
professional or technical opinions to be “advice and recommendations” in the
requisite sense. Clearly, there may be difficult lines to be drawn between
professional opinions and “advice.” Yet, it is relatively easy to distinguish
between professional opinions (such as the opinion of a medical researcher that a
particular disorder is not caused by contact with certain kinds of environmental
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[IPC Order PO-2028/June 28, 2002]
pollutants, or the opinion of an engineer that a particular high-level bridge is
unsound) and the advice of a public servant making recommendations to the
government with respect to a proposed policy initiative. The professional
opinions indicate that certain inferences can be drawn from a body of information
by applying the expertise of the profession in question. The advice of the public
servant recommends that one of a possible range of policy choices be acted on by
the government.
The Williams Commission uses the words “advice” and “recommendations” as if they are
interchangeable, and the discussion contains no suggestion that the words carry substantively
different meanings. This supports the position that they should have similar meanings and
application in the context of section 13(1) of the Act.
In Order PO-1993, Adjudicator Laurel Cropley applied this office’s interpretation of section
13(1), and discussed the purpose of the exemption. Adjudicator Cropley examined the records at
issue in that appeal, and identified the context in which the decisions regarding the awarding of
certain contracts were made. She reviewed the scoring process used by the Ministry in that
appeal, and noted the difficulty she had in identifying any “advice”, given the context within
which the decisions were made. She went on to state:
I do not accept the Ministry’s argument that these scores represent the judgment
of the scorer for the purpose of making a recommendation to senior staff. In
applying the pre-set criteria to the information contained in the proposals, the
evaluators are essentially providing the factual basis upon which any advice or
recommendations would be developed. Broadly viewed, the Ministry’s approach
could be taken to mean that every time a government employee expresses an
opinion on a policy-related matter, or sets pen to paper, the resultant work is
intended to form part of that employee’s recommendations or advice to senior
staff on any issue.
As I noted above, the purpose of the exemption in section 13(1) is to protect the
free flow of advice or recommendations within the deliberative process. The
importance of protecting this type of information is to ensure that employees do
not feel constrained by outside pressures in exploring all possible issues and
approaches to an issue in the context of making recommendations or providing
advice within the deliberative process of government decision-making and policymaking.
Ultimately, it is the recipient of the advice or recommendations who will
make the decision and thus be held accountable for it.
After quoting from the Williams Commission report, and pointing out that the government
employees in her case were simply establishing the factual basis for ultimately making advice
and/or recommendations, Adjudicator Cropley went on to state:
Even if a broader definition were adopted for “advice” and “recommendations”,
to include, for example, all expressions of opinion on policy-related matters, I
would not find the Project Supervisor scores exempt because they are, as I noted
above, primarily of a factual or background nature. In and of themselves, they do
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[IPC Order PO-2028/June 28, 2002]
not “advise” or “recommend” anything, nor can they be seen as predictive of the
advice or recommendations that would ultimately be given. It would not be
accurate to view them as advice or recommendations in the sense required by
section 13(1). On this basis, I find that section 13(1) does not apply to the records
at issue or the records in their entirety.
I agree with Adjudicator Cropley’s articulation of the purpose and proper interpretation of the
term “advice”, and adopt it for the purposes of this appeal.
The Ministry’s submission also is not supported by the ordinary meaning of the words “advice”
and “recommendations”. In its representations, the Ministry identifies some definitions of the
word “advice” that, in my view, support the position that the words “advice” and
“recommendations” are closely associated terms with similar meanings. For example, the entry
from Webster’s Collegiate Thesaurus referred to by the Ministry lists “recommendation
regarding a decision” as an interpretation of “advice”. Other dictionary definitions also use the
two words to define each other. For example:
Advice
“Recommendation regarding a decision or course of conduct” (Webster’s Third
New International Dictionary, Philip Babcock Gove, ed., (Springfield, MA:
Merriam-Webster Inc., 1986))
Recommend/Recommendation
“Advise (course of action or treatment, person to do, that thing should be done)”
(The Concise Oxford Dictionary of Current English, 6th ed., J.B. Sykes, ed.
(Oxford: Oxford University Press, 1976))
“Recommendation refers to any action which is advisory in nature rather than one
having any binding effect” (Black’s Law Dictionary, 6th ed., J. R. Nolan et al. (St.
Paul, MN: West Publishing Co., 1990))
From a statutory interpretation perspective, it is important to point out that different words in a
statute may, at times, have the same or similar meaning. Driedger on the Construction of
Statutes, 3rd ed., by R. Sullivan (Toronto: Butterworth’s, 1994) states (at p. 163):
Drafters with knowledge of the outcome the legislature wants to achieve may
anticipate potential misunderstandings or problems in the administration of the
legislation. In an effort to forestall these difficulties, they may resort to repetition
or the inclusion of unnecessary detail and direction. Repetition or superfluous
words may also be introduced to make the legislation easier to read or to work
with or, in the case of bilingual legislation, to preserve parallelism between the
two language versions. Where there is reason to believe that the tautologous
words were deliberately included in the legislation, the presumption [against
tautology] is rebutted.
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[IPC Order PO-2028/June 28, 2002]
Again, this supports this office’s view that “advice” and “recommendations” are to be interpreted
similarly.
This office’s approach to section 13 is consistent with a decision of the Supreme Court of
Canada. In Thomson v. Canada (Deputy Minister of Agriculture) (1992), 89 D.L.R. (4th) 218 at
242-243, the court made the following comment on the definition of “recommendation”, which
again includes the word “advice”:
The contention of the respondent should not, in my view, be accepted. The
simple term “recommendations” should be given its ordinary meaning.
“Recommendations” ordinarily means the offering of advice and should not be
taken to mean a binding decision.
Conclusion
To summarize, the Ministry’s position that “advice” should be broadly defined to include
“information, notification, cautions, or views where these relate to a government decisionmaking
process” flies in the face of a long line of jurisprudence from this office defining the
term “advice and recommendations” that has been endorsed by the courts; conflicts with the
purpose and legislative history of the section; is not supported by the ordinary meaning of the
word; and is inconsistent with other case law.
A great deal of information is frequently provided and shared in the context of various decisionmaking
processes throughout government. The key to interpreting and applying the word
“advice” in section 13(1) is to consider the specific circumstances and to determine what
information reveals actual advice. It is only advice, not other kinds of information such as
factual, background, analytical or evaluative material, which could reasonably be expected to
inhibit the free flow of expertise and professional assistance within the deliberative process of
government.
Application of section 13(1) to the record at issue
Background
As far as the present appeal is concerned, the Ministry identifies that the record is a Project
Evaluation Report prepared by an employee of the Ministry (working within the Regional
Economic Development Branch) and provided to the Board of Directors of the Northern Ontario
Heritage Funding Corporation (the NOHFC). This Board had the authority to make a decision
regarding funding for the project being evaluated, and the Ministry identifies that the Evaluation
Report was provided to the Board for the sole purpose of assisting the Board in making this
decision.
The Ministry also provides a review of the authority and mandate of the Board, and identifies the
process by which an applicant submits a project application. In that regard, applicants are
encouraged to discuss their projects with appropriate Ministry staff members, who assist and
support economic development by promoting programs, assessing proposals and monitoring
projects.
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[IPC Order PO-2028/June 28, 2002]
With respect to the type of record at issue in this appeal, the Ministry states:
[Ministry] staff (Northern Development Advisors and Northern Development
Officers) provide the Evaluations to the NOHFC so that its Board can determine
if the proponent’s project will be approved for funding by the NOHFC and the
terms of that funding. The Evaluation is the mechanism by which [Ministry] staff
assess and evaluate the proposal and provide advice to the Board …. This advice
is considered by the Board in its deliberations to determine potential assistance if
any, the amount and the type of assistance, from the NOHFC. The funding
decision is made by the NOHFC Board, which may or may not act on the advice
given in the Evaluation in reaching its decision on whether or not to approve a
project for funding.
As described by the Ministry, I accept that NOHFC, as an operational service agency of the
Ministry and through its Board, performs a decision-making function relating to the funding of
projects within the scope of its program mandate. I also accept that the role of employees in the
Ministry’s Regional Economic Development Branch, as public servants, is to provide advice to
the Board within the context of this decision-making process, and that Ministry staff did in fact
prepare and communicate the information in the Evaluation Report to the Board. Although one
step removed from the actual direct program delivery responsibilities of the Ministry, I am also
persuaded that the information contained in the record relates to the actual business of the
Ministry in supporting economic development in Northern Ontario, and that the type of record at
issue in this appeal is connected to the deliberative process of this government decision-making
activity.
In my view, the key remaining contextual issues that are determinative of the section 13(1) claim
in the circumstances of this appeal are: (1) whether the record, or any portion of it, consists of
advice; and (2) if not, whether disclosure of the record, in whole or in part, would allow one to
accurately infer any advice.
The record as a whole
The Ministry’s first position is that Record 16 in its entirety qualifies as “advice”. The Ministry
states that, in considering the appellant’s request, it first determined that the record fell within the
scope of section 13(1) and then exercised its discretion to disclose all of the record except for the
portions of the four identified pages. It states:
It is the Ministry’s position that the entire Evaluation contains advice that relates
to a decision on a specific course of action. The recipient of the advice is the
Board and the suggested course of action is whether or not to fund the project,
which has been evaluated. A footnote at the bottom of the first page of the
Evaluation reads:
This document contains information of a confidential nature made
available during the consultation and evaluation process, and is
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[IPC Order PO-2028/June 28, 2002]
provided solely for the purpose of assisting the Board of Directors
of the Corporation to render a decision.
The Ministry’s first position highlights the difficulty in applying the overly broad definition of
“advice” suggested by the Ministry. Adjudicator Cropley succinctly identified the dangers of
taking this approach in PO-1993, where she stated:
Broadly viewed, the Ministry’s approach could be taken to mean that every time a
government employee expresses an opinion on a policy-related matter, or sets pen
to paper, the resultant work is intended to form part of that employee’s
recommendations or advice to senior staff on any issue.
Similarly in this appeal, the Ministry’s view that the entire record qualifies as advice for the
purpose of section 13(1) is casting the net too widely. The “catch-all” footnote in the record
referred to by the Ministry also underscores the importance of reviewing the actual information
contained in the record to determine whether or not any of it actually consists of “advice”, or
allows one to accurately infer any advice; calling something “advice” does not make it so.
Simply stated, in my view, the portions of the record already disclosed by the Ministry constitute
“mere information”. They do not advise or recommend anything, nor would they allow one to
accurately infer any advice or recommendations actually given. Therefore, section 13(1) does
not apply.
Specific portions of the records
The Ministry provides a second position:
In the alternative, the Ministry submits that the severed portions of the Evaluation
(certain of the Potential Issues and the Funding Options) are clearly advice, not
just a compilation of factual matter. These portions of the Evaluation should be
exempt as advice by government employees to a government decision-making
body (the NOHFC Board) for the purpose of deciding on a specific course of
action within the core business of that body.
Pages 4 and 5: “potential issues”
The severances on pages 4 and 5 each consist of a paragraph listed under the heading “Potential
Issues”. The Ministry submits that they contain advice, and states:
With respect to the severed “Potential Issues”, there is certainly an implied
suggestion that these are matters which the decision-makers should take into
consideration in reaching a decision on whether or not to approve the project for
funding. The suggested course of action in this section is that the decision-makers
should take the issues into account during the deliberative process.
I do not accept the Ministry’s position on these two severances. In my view, these paragraphs
simply draw matters of potential relevance to the attention of the decision-maker. They do not
advise or recommend anything, nor do they permit one to accurately infer any advice given.
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[IPC Order PO-2028/June 28, 2002]
Pages 9 and 10: “options”
The severances on pages 9 and 10 are listed under the heading “Funding Options”, and include a
series of “pros” and “cons” identified by Ministry staff for each option. The Ministry submits:
The “Funding Options” are advice to the decision-makers about the methods of
funding the project if it is approved. The advisors are not in a position to
recommend to the decision-makers how they are to decide on funding or the
financing options, but the options with pros and cons are also matters that should
be considered by the NOHFC Board as part of its decision to approve or not
approve the project for funding. The immediate suggested action is for the
decision-makers to consider these options in their deliberations.
The issue of whether or not “options” qualify as “advice or recommendations” for the purpose of
section 13(1) has been considered in a number of previous orders. The Ministry’s
representations refer to two of them: Orders P-529 and P-1037.
In Order P-529 former Assistant Commissioner Irwin Glasberg had to determine whether certain
records relating to the evaluation of proposals for the delivery of bus services to the Ministry of
Transportation qualified for exemption under section 13(1). Three of them contained different
lists of options, and he found that only one record qualified for exemption as containing
“advice”. The basis for distinguishing this one record was that, in addition to listing options, this
record contained an assessment of the anticipated results or probable outcomes, and, in the
circumstances, this information was found to reveal by inference a particular suggested course of
action.
In Order P-1037, Adjudicator Cropley considered whether a record containing various options
for dealing with proposals for a housing project administered by the Ministry of Health qualified
for exemption. After considering the facts and argument provided in that appeal, she identified
that “some of [the options] include observations about the possible consequences of
implementing the particular option to which they are attached”, but rejected the section 13(1)
exemption claim on the basis that no preferred option was identified and, therefore, the record
did not contain “advice or recommendations”. In other words, given the particular context she
was facing, Adjudicator Cropley was not persuaded that the content of the various options would
reveal a suggested course of action.
Two other appeals not identified by the Ministry also provide examples of how records
containing options have been treated in past orders.
In Order P-1631, Senior Adjudicator David Goodis examined records used for the purpose of
obtaining directions relating to settlement discussions for litigation involving the Ministry of
Natural Resources and the Ministry of the Attorney General. In finding that certain records
containing “proposed options and courses of action” qualified as “advice or recommendations”
for the purposes of section 13(1), he relied on the fact that the options were accompanied by
“pros and cons” that could be taken into account by the decision-makers in the settlement
negotiations. Senior Adjudicator Goodis determined, based on the facts and arguments presented
to him in that appeal, that the consequences of implementing a particular option outlined in the
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[IPC Order PO-2028/June 28, 2002]
“pros and cons” discussion could be interpreted as revealing a suggested course of action, and
found that they qualified as “advice”.
Finally, in Order P-1034, former Adjudicator Anita Fineberg considered whether portions of a
record containing options for implementing a non-tax revenue strategy qualified for exemption
under section 13(1). She rejected the exemption claim, based on the fact that the options did not
include any “pros and cons”; that the author of the record was not “recommending or advising
the senior managers that one option should be adopted in preference to the others”; and that the
options were not mutually exclusive.
What is clear from these cases is that the format of a particular record, while frequently helpful
in determining whether it contains “advice” for the purposes of section 13(1), is not
determinative of the issue. Rather, the content must be carefully reviewed and assessed in light
of the context in which the record was created and communicated to the decision maker. In
circumstances involving options that do not include specific advisory language or an explicit
recommendation, careful consideration must be given to determine what portions of a record
including options contain “mere information” and what, if any, contain information that actually
“advises” the decision maker on a suggested course of action, or allows one to accurately infer
such advice. If disclosure of any portions of a record would reveal actual advice, as opposed to
disclosing “mere information”, then section 13(1) applies.
Applying this approach to the severed portions of pages 9 and 10, I find they do not contain
“recommendations” or “advice”. The Ministry acknowledges in its representations that the role
of Ministry staff in providing support to NOHFC does not extend to “recommending a particular
course of action to be followed”. In my view, the description of each option itself is “mere
information”. The description simply states the various factual components of the option broken
down into various pre-determined categories. It contains no information that could be said to
“advise” the NOHFC in making its decision on funding, nor, in my view, would disclosure allow
one to accurately infer any advice given. The “pros and cons” description that accompanies each
option also do not contain any explicit advice. There is no statement recommending that
NOHFC chose a particular option and no explicit indication as to which option is preferred by
the authors of the Evaluation Report.
The next question is whether disclosure of these portions would allow one to accurately infer any
advice given. When considered as a whole and in the context of the roles played by Ministry
staff in providing support to the NOHFC and the Board of that organization as a decision-making
body for Northern Ontario project funding, I find that disclosure of the “pros and cons” for the
various options would not permit accurate inferences to be drawn as to the nature of any advice
implicitly contained in these portions of the record. In my view, in comparing the various “pros
and cons” it would not be reasonable to infer a suggested course of action by Ministry staff,
which will ultimately be accepted or rejected by the Board during the deliberative process.
Accordingly, I find that the “pros and cons” portions of pages 9 and 10 do not consist of or allow
one to accurately infer any advice or recommendations. Therefore, section 13(1) of the Act does
not apply.
- 13 -
[IPC Order PO-2028/June 28, 2002]
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jun 28, 2002
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Type
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Order
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Judicial Review
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Institution's application dismissed January 19, 2004
Institution's appeal to the Court of Appeal dismissed September 26, 2005
Institution's application for leave to appeal to the Supreme Court of Canada dismissed April 13, 2006
Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2005] O.J. No. 4048, Tor. Docs. C42072 and C42073 (C.A.); affirming [2004] O.J. No. 163, 181 O.A.C. 251, Tor. Docs. 433/02 and 25/03 (Div. Ct.); application for leave to appeal dismissed, [2005] S.C.C.A. No. 564, File No. 31226 (S.C.C.)
Divisional Court Decision - Motion to Combine
Divisional Court Decision
Court of Appeal Decision
Supreme Court of Canada Decision
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