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Document
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PO-1999
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File #
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PA-000046-2
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Institution/HIC
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Ministry of Correctional Services
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Summary
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NATURE OF THE APPEAL:
The Ministry of Correctional Services (the Ministry) received four requests under the Freedom
of Information and Protection of Privacy Act (the Act) for access to records relating to certain
named and unnamed individuals. All the requests sought access to records relating to allegations
of sexual abuse in Cornwall, Ontario and were made by a representative of the media.
The Ministry located and identified a number of responsive records and denied access to them
on the basis that section 65(6) of the Act applied. The requester appealed the decisions to deny
access. These appeals were resolved through the issuance of Order PO-1905 in which Senior
Adjudicator David Goodis held that section 65(6) did not apply to the records at issue. As a
result, the Ministry was ordered to provide the appellant with an access decision. The Ministry
initiated an application for the judicial review of the decision in Order PO-1905 on the basis that
the records are excluded from the scope of the Act as a result of the application of section 65(6).
In accordance with the order provisions of Order PO-1905, the Ministry issued a decision and
applied the discretionary exemptions in sections 13(1) (advice or recommendations) and 19
(solicitor-client privilege), along with the mandatory exemption in section 21(1) (invasion of
privacy) to the records. In support of its contention that the records are exempt under sections
21(1), the Ministry relies on a number of presumptions in section 21(3) of the Act, as well as
certain considerations listed in section 21(2) of the Act.
The appellant appealed the Ministry’s decision and also made reference to the possible
application of the “public interest override” provision in section 23 of the Act. Mediation of the
appeal was not possible and the matter was referred to the adjudication stage of the process. I
decided to seek the representations of the Ministry, initially. The Ministry made submissions in
response to the Notice, which were shared with the appellant, in their entirety. The Ministry
withdrew its reliance on the advice or recommendations exemption in section 13(1) of the Act.
As this is a discretionary exemption, it will not be necessary to address its application to the
records further. The appellant was then invited to make submissions in response to a revised
Notice of Inquiry and did so. The representations of the appellant were then shared with the
Ministry, who declined to make additional reply submissions.
RECORDS AT ISSUE:
The records at issue in this appeal consist of notes, correspondence, newspaper articles,
pleadings, investigation reports, facsimiles, e-mails and various other documents. The records
have been grouped by the Ministry on the basis of their place of origin in its record-holdings.
Record Groups A and B, consisting of 50 and 28 pages of documents respectively, were located
in the Ministry’s Community and Young Offender Services Division. Record Group C,
consisting of 381 pages of documents originated in a litigation file compiled by the Ministry’s
Legal Services Branch.
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[IPC Order PO-1999/March 13, 2002]
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
The Ministry takes the position that all of the records at issue in this appeal are exempt from
disclosure under the solicitor-client privilege exemption in section 19 of the Act. It argues that
the records qualify for the privilege as they represent confidential communications between a
solicitor and client or they are subject to “litigation privilege”. Section 19 states:
A head may refuse to disclose a record that is subject to solicitor-client privilege
or that was prepared by or for Crown counsel for use in living legal advice or in
contemplation of or for use in litigation.
Section 19 encompasses two heads of privilege: (1) solicitor client communication privilege;
and (2) litigation privilege.
The Submissions of the Parties with Respect to Section 19
The Ministry submits that:
The exempt records reflect confidential communications between the Ministry
and Crown counsel responsible for responding to civil actions on behalf of the
Ministry. Several of the responsive records also reflect confidential
communications with a Crown Attorney. The exempt information also consists
in part of communications which directly relate to the seeking of legal advice by
the Ministry and the provision of legal advice by Crown counsel.
. . .
The Ministry has also applied section 19 to confidential communications between
Legal Counsel representing other parties and the Ministry. Release of this
information would reveal legal advice. The Ministry submits that the content of
the records exempted under section 19 is supportive of this position.
The exempt information was also prepared by or for Crown counsel for use in
giving legal advice, in contemplation of litigation and for use in past, current and
potential future litigation relating to allegations of misconduct involving Ministry
employees.
. . .
It should be noted that three civil actions have been brought against the Ministry
in relation to allegations of sexual abuse in Cornwall, Ontario involving former
Ministry employees. Two of the civil actions, involving a number of plaintiffs,
are currently before the courts. In one of the outstanding cases, the Court has
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[IPC Order PO-1999/March 13, 2002]
ordered a publication ban and as such, more detailed comment in this submission
would be inappropriate.
The Ministry submits that it is not aware of any circumstances which would
suggest that solicitor-client privilege has been waived with respect to any of the
records exempted in accordance with section 19.
The appellant makes the following representations on the application of section 19 to the
records. She states:
Since the request in this case was made before the institution of civil litigation,
there must exist records which were prepared before litigation was contemplated.
Even if these records are now concerned in the litigation, it cannot be said that
they were prepared to assist litigation.
Solicitor-Client Communication Privilege
Solicitor-client communication privilege protects direct communications of a confidential nature
between a solicitor and client, or their agents or employees, made for the purpose of obtaining
professional legal advice. The rationale for this privilege is to ensure that a client may confide in
his or her lawyer on a legal matter without reservation (Order P-1551).
The Supreme Court of Canada has described this privilege as follows:
... all information which a person must provide in order to obtain legal advice and
which is given in confidence for that purpose enjoys the privileges attaching to
confidentiality. This confidentiality attaches to all communications made within
the framework of the solicitor-client relationship ... [Descôteaux v. Mierzwinski
(1982), 141 D.L.R. (3d) 590 at 618, cited in Order P-1409]
The privilege has been found to apply to “a continuum of communications” between a solicitor
and client:
... the test is whether the communication or document was made confidentially
for the purposes of legal advice. Those purposes have to be construed broadly.
Privilege obviously attaches to a document conveying legal advice from solicitor
to client and to a specific request from the client for such advice. But it does not
follow that all other communications between them lack privilege. In most
solicitor and client relationships, especially where a transaction involves
protracted dealings, advice may be required or appropriate on matters great or
small at various stages. There will be a continuum of communications and
meetings between the solicitor and client ... Where information is passed by the
solicitor or client to the other as part of the continuum aimed at keeping both
informed so that advice may be sought and given as required, privilege will
attach. A letter from the client containing information may end with such words
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[IPC Order PO-1999/March 13, 2002]
as “please advise me what I should do.” But, even if it does not, there will
usually be implied in the relationship an overall expectation that the solicitor will
at each stage, whether asked specifically or not, tender appropriate advice.
Moreover, legal advice is not confined to telling the client the law; it must include
advice as to what should prudently and sensibly be done in the relevant legal
context [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in
Order P-1409].
Solicitor-client communication privilege has also been found to apply to the legal advisor=s
working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery
Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, cited in Order M-729].
Litigation Privilege
Litigation privilege protects records created for the dominant purpose of existing or reasonably
contemplated litigation [Order MO-1337-I; General Accident Assurance Co. v. Chrusz (1999),
45 O.R. (3d) 321 (C.A.).
In Solicitor-Client Privilege in Canadian Law by Ronald D. Manes and Michael P. Silver,
(Butterworth’s: Toronto, 1993), pages 93-94, the authors offer some assistance in applying the
dominant purpose test, as follows:
The “dominant purpose” test was enunciated [in Waugh v. British
Railways Board, [1979] 2 All E.R. 1169] as follows:
A document which was produced or brought into
existence either with the dominant purpose of its
author, or of the person or authority under whose
direction, whether particular or general, it was
produced or brought into existence, of using it or its
contents in order to obtain legal advice or to
conduct or aid in the conduct of litigation, at the
time of its production in reasonable prospect,
should be privileged and excluded from inspection.
It is crucial to note that the “dominant purpose” can exist in the
mind of either the author or the person ordering the document’s
production, but it does not have to be both.
. . . . .
[For this privilege to apply], there must be more than a vague or
general apprehension of litigation.
In Order MO-1337-I, Assistant Commissioner Tom Mitchinson found that even where records
were not created for the dominant purpose of litigation, copies of those records may become
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[IPC Order PO-1999/March 13, 2002]
privileged if they have “found their way” into the lawyer’s brief [see General Accident; Nickmar
Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (S.C.); Hodgkinson v.
Simms (1988), 55 D.L.R. (4th) 577 (B.C. C.A.)]. The court in Nickmar stated the following with
respect to this aspect of litigation privilege:
. . . the result in any such case depends on the manner in which the copy or
extract is made or obtained. If it involves a selective copying or results from
research or the exercise of skill and knowledge on the part of the solicitor, then I
consider privilege should apply.
In Order MO-1337-I, the Assistant Commissioner elaborated on the potential application of the
Nickmar test:
The types of records to which the Nickmar test can be applied have been
described in various ways. Justice Carthy referred to them in General Accident as
“public” documents. Nickmar characterizes them as “documents which can be
obtained elsewhere”, and [Hodgkinson] calls them “documents collected by the ...
solicitor from third parties and now included in his brief”. Applying the
reasoning from these various sources, I have concluded that the types of records
that may qualify for litigation privilege under this test are those that are publicly
available (such as newspaper clippings and case reports), and others which were
not created with the litigation in mind. On the other hand, records that were
created with real or reasonably contemplated litigation in mind cannot qualify for
litigation [privilege] under the Nickmar test and should be tested under “dominant
purpose”.
Findings
Communications between Opposing Counsel
As noted above, the Ministry takes the position that communications between “Legal counsel
representing other parties and the Ministry” are exempt from disclosure under section 19 as their
release “would reveal legal advice”. Specifically, I find that the records comprising Records 13
to 17 of Record Group B and Records 3-4, 29-33, 149-155 and 221-222 (which is duplicated at
233-234) of Record Group C represent communications between the Ministry (and its in-house
and outside counsel) and counsel representing the plaintiffs or potential plaintiffs in the actions
referred to in the Ministry’s representations.
At common law, communications between opposing parties, even in contemplation of litigation,
are not considered privileged unless made with a view to settlement [see, for example, Flack v.
Pacific Press Ltd. (1971), 14 D.L.R. (3d) 334 (B.C. C.A.); Strass v. Goldsack (1975), 58 D.L.R.
(3d) 397 at 426-427 (Alta. C.A.)]. In Solicitor-Client Privilege in Canadian Law (Toronto:
Butterworths, 1993), R.D. Manes et al. explain the rationale for not extending privilege to cover
this circumstance (at page 148):
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[IPC Order PO-1999/March 13, 2002]
The key to holding that privilege cannot possibly attach to communications
between opposing parties is that in the making of such a communication, there
cannot have been an intention of confidentiality, and that the production ... cannot
violate a confidential relationship between the defendants and their solicitors.
Thus, there is no room for privilege to attach. The denial of privilege operates on
principles similar to those in waiver of privilege, in that by communicating to the
other side, the communicating party could be said to have waived privilege with
respect to that communication.
In my view, this common law principle also applies to Records 13 to 17 of Record Group B and
Records 3-4, 29-33, 149-155 and 221-222 (which is duplicated at 233-234) of Record Group C,
and accordingly, no privilege attaches to them.
Records Subject to Solicitor-Client Communication Privilege
As noted in the Ministry’s representations, the Ministry and a number of its employees were
named as defendants in three separate actions brought by former young offenders who were
supervised by the Ministry’s probation office based in Cornwall. In defending these actions, the
Ministry, retained the services of an outside law firm and also relied upon its own in-house legal
counsel to provide advice. In doing so, counsel prepared or responded to various
correspondence with the Ministry and generally advised the Ministry as to how to conduct the
defence of the actions. The records at issue in this appeal include these communications
between counsel, both inside and outside the Ministry, and various Ministry officials and formed
part of the “continuum of communications between a solicitor and client”.
I have reviewed the contents of the records and find that Records 5-6 from Record Group A,
Records 11, 12-17 and 18-20 of Record Group B and Records 1-2, 7, 10-13, 14, 19, 25-27, 28,
44-45, 51-52, 61, 62, 63-66, 67-68, 81-84, 85-90, 95, 100, 101-102, 103, 117-122, 134, 148,
156-163, 166, 168-169, 170-171, 172-173, 174, 176, 179, 180-181, 186, 187, 191-193, 194-196,
197, 199-201, 219-220, 223-224, 225-228, 230-232, 236-240, 261-262, 263, 264, 339, 340, 360,
365, 374-376, 377 and 378 from Record Group C qualify for exemption under the solicitor-client
privilege component of section 19. Each of these records represents a confidential
communication between a solicitor, either employed by the Ministry or retained externally, and a
client, a Ministry lawyer or employee. In addition, these communications pertain to a legal issue
relating to the Ministry’s defence of the three actions brought against it. They contain either
legal advice to, or a request for, the provision of such advice from the client. Accordingly, I find
that all of the records enumerated above are exempt from disclosure under the solicitor-client
communication privilege component of section 19.
In addition, I find that certain of the records meet the criteria set out in Susan Hosiery, cited
above, as they represent the legal advisor=s working papers directly related to seeking,
formulating or giving legal advice. Specifically, I find that Records 1-2 from Record Group A,
Records 1-7 and 8-10 from Record Group B and Records 5-6, 8, 8a, 9, 15-18, 20-23, 34-43, 46-
49, 50, 164, 165, 167, 175, 178, 188-189, 190, 198, 215, 216-217, 235, 241-248, 249-260, 343,
353-356, 357-359, 361-364 and 379 to 381 from Record Group C are various newspaper articles,
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[IPC Order PO-1999/March 13, 2002]
Ministry Issue Notes, handwritten notes by counsel and copies of court decisions which were
compiled by Ministry solicitors to assist in the formulation and giving of legal advice.
Records Subject to Litigation Privilege
During the progress of the Ministry’s defence of the actions, its solicitors, both in-house and
external, requested and were provided with a number of documents generated by the Ministry
which may bear some relation to the facts alleged in the plaintiffs’ Statements of Claim. As a
result, Ministry staff made a number of inquiries and finally located a large number of records,
some dating back many years, which pertain to the events which gave rise to the litigation.
These records were not prepared in contemplation of litigation and do not, accordingly, qualify
under the “dominant purpose” test for litigation privilege. Rather, I am obliged to determine
whether they qualify under the test enunciated in Nickmar and Order MO-1337-I, which are
referred to in my discussion above. The question to be answered is whether these records
qualify as “others which were not created with the litigation in mind” within the meaning of
Assistant Commissioner Mitchinson’s discussion in MO-1337-I.
I find that Records 3-4, 7, 8, 9-10, 11-12, 14-19 (which is duplicated at 37-42 and 265-270 of
Record Group C), 20-27 (which is duplicated at 43-50), 28-35 (which is duplicated at 366-373 of
Record Group C) and 36 of Record Group A, Records 21 and 22-28 of Record Group B and
Records 70-80, 124-125, 135-147 (which is duplicated at 202-214), 328 and 329-338 of Record
Group C are documents which were not created with litigation in mind but which were gathered
by the solicitor for inclusion in the litigation brief. These records relate to the fact-finding and
investigation process undertaken by counsel in formulating the Ministry’s response to the actions
brought against it. The inclusion of these records in the litigation brief served to inform the
solicitor of the Ministry’s evidence in order to assist in the preparation of its defence.
Accordingly, I find that these records qualify under the litigation privilege component of section
19 using the criteria described in Nickmar and reiterated in Assistant Commissioner
Mitchinson’s reasoning in Order MO-1337-I.
Further records at issue in the appeal were created directly in response to the litigation as part of
the Ministry’s attempts to gather information for the preparation of a defence and in order to
meet its obligations with respect to undertakings which it entered into in the course of
Examinations for Discovery. These records must be examined with a view to determining
whether the “dominant purpose” for their creation was to assist the Ministry in its defence of the
legal proceedings brought against it.
I find that Record 13 of Record Group A and Records 24, 69, 91-94, 96, 97, 98-99, 114-116
(which is duplicated at 350-352), 123, 126-133, 177, 182-184, 185, 218 and 229 were created for
the dominant purpose of assisting the Ministry in its defence of the litigation then underway.
The records primarily describe the Ministry’s efforts to locate in its record-holdings any
information which would assist the Ministry in its defence or to respond to its undertakings
entered into at the Examinations for discovery stage of the litigation. As such, I find that they
qualify for exemption under the litigation privilege component of section 19.
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[IPC Order PO-1999/March 13, 2002]
By way of summary, I find that all of the records which are at issue in this appeal, with the
exception of those documents which were sent to or received from opposing counsel, are exempt
under either the solicitor-client communication or the litigation privilege head of section 19. I
will now address whether the records which are not exempt under section 19, Records 13 to 17
of Record Group B and Records 3-4, 29-33, 104 (duplicated at Record 341), 105 (duplicated at
Record 342), 106 (duplicated at Record 344), 107-110 (duplicated in part at Record 345 and
346), 111-113 (duplicated at Record 347-349), 149-155 and 221-222 (which is duplicated at
233-234) of Record Group C may qualify for exemption, in whole or in part, under the
mandatory invasion of privacy exemption in section 21(1) of the Act.
PERSONAL INFORMATION
Section 2(1) of the Act defines the term “personal information” to include, in part, recorded
information about an identifiable individual.
The Ministry takes the position that each of the records contain information which pertains to
identifiable individuals, including Ministry employees, young offenders, members of the public
and others. The Ministry recognizes that some of the information relating to Ministry employees
does not qualify as their personal information, but rather, is more properly characterized as
relating to them in their professional capacity. Relying on the decision of former Assistant
Commissioner Irwin Glasberg in Order P-721, the Ministry submits that because some of the
records involve an evaluation of a Ministry employee’s conduct or performance, these records
are considered to contain the employee’s personal information.
The appellant points out that in many previous orders of the Commissioner’s office, it has been
held that “information about an employee does not constitute that individual’s personal
information where the information relates to the individual’s employment responsibility or
position.”
I have reviewed the contents of Records 13 to 17 of Record Group B and Records 3-4, 29-33,
104 (duplicated at Record 341), 105 (duplicated at Record 342), 106 (duplicated at Record 344),
107-110 (duplicated in part at Record 345 and 346), 111-113 (duplicated at Record 347-349),
149-155 and 221-222 (which is duplicated at 233-234) of Record Group C and make the
following findings:
• Records 13-17 of Record Group B (duplicated at Records 29-33 of Record Group C), along
with Record 3-4, 149-155 and 221-222 (duplicated at Record 233-234) of Record Group C
contain the personal information of two former Ministry employees who are now deceased.
In the context of the creation of these records, the information does not refer to these
individuals in their professional or employment capacity. Rather, it describes the
involvement of these individuals in alleged improper conduct. As a result, I find that the
references to these individuals contained in these records to be their personal information
within the meaning of the definition of that term in section 2(1)(h).
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[IPC Order PO-1999/March 13, 2002]
• Record 13-17 of Record Group B (duplicated at Records 29-33 of Record Group C), Records
3-4, 105 (and 342), 111-113 (and 347-349), 149-155 and 221-222 (and 233-234) of Record
Group C contain information relating to individuals who were under orders of probation and
were supervised by the Ministry. I find that this information qualifies as “personal
information” within the meaning of section 2(1)(b) as it relates to the criminal history of
these individuals. In addition, Records 13-17 of Record Group B and 221-222 and 233-234
of Record Group C also make reference to the psychological, medical and employment
history of the Ministry clients (section 2(1)(b)).
• Record 13-17 of Record Group B (and 29-33 of C), along with Records 104, 105, 106, 107-
110 and 111-113 of Record Group C contain references to Ministry employees, past and
present. In the circumstances, I find that the involvement of these individuals was not
“personal” in nature. These persons are named in the records in their employment or
professional capacities as Ministry staff and are not referred to in their private or personal
capacities. As a result, I find that these records do not contain their personal information.
• None of the records contain the personal information of the appellant.
In summary, I find that only Records 13-17 of Record Group B (and its duplicate, Records 29-33
of Record Group C), along with Records 3-4, 105 (and 342), 111-113 (and 347-349), 149-155
and 221-222 (duplicated at Record 233-234) of Record Group C contain information which
qualifies as personal information as that term is defined in section 2(1). Records 104 (and its
duplicate at 341), 106 (which is duplicated at 344), 107-110 (duplicated in part at 345 and 346),
112 and 113 from Record Group C contain no personal information within the meaning of
section 2(1). As only personal information can be exempt from disclosure under section 21(1),
and no other mandatory exemptions apply to these records, they will be ordered disclosed to the
appellant.
INVASION OF PRIVACY
Where a requester seeks personal information of another individual, section 21(1) of the Act
prohibits an institution from releasing this information unless one of the exceptions in
paragraphs (a) through (f) of section 21(1) applies. In my view, the only possible exception
which may apply in the present circumstances is section 21(1)(f), which reads:
A head shall refuse to disclose personal information to any person other than the
individual to whom the information relates except, if the disclosure does not
constitute an unjustified invasion of personal privacy.
Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal
information would result in an unjustified invasion of the personal privacy of the individual to
whom the information relates. Section 21(2) provides some criteria for the institution to
consider in making this determination. Section 21(3) lists the types of information the disclosure
of which is presumed to constitute an unjustified invasion of personal privacy. Section 21(4)
refers to certain types of information the disclosure of which does not constitute an unjustified
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[IPC Order PO-1999/March 13, 2002]
invasion of personal privacy. The Divisional Court has stated that once a presumption against
disclosure has been established, it cannot be rebutted by either one or a combination of the
factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993),
13 O.R. (3d) 767].
A section 21(3) presumption can be overcome if the personal information at issue falls under
section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling
public interest exists in the disclosure of the record in which the personal information is
contained which clearly outweighs the purpose of the section 21 exemption. [Order PO-1764]
If none of the presumptions in section 21(3) applies, the Ministry must consider the application
of the factors listed in section 21(2), as well as all other considerations that are relevant in the
circumstances of the case.
The Ministry relies on the "presumed unjustified invasion of personal privacy" in sections
21(3)(a), (b), (d), (f) and (g) of the Act and the factors listed under sections 21(2)(e), (f), (h) and
(i) of the Act.
These sections state:
(2) A head, in determining whether a disclosure of personal information
constitutes an unjustified invasion of personal privacy, shall consider all
the relevant circumstances, including whether,
(e) the individual to whom the information relates will be exposed unfairly to
pecuniary or other harm;
(f) the personal information is highly sensitive;
(h) the personal information has been supplied by the individual to whom the
information relates in confidence; and
(i) the disclosure may unfairly damage the reputation of any person referred
to in the record.
(3) A disclosure of personal information is presumed to constitute an
unjustified invasion of personal privacy where the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis,
condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation into a possible
violation of law, except to the extent that disclosure is necessary to
prosecute the violation or to continue the investigation;
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[IPC Order PO-1999/March 13, 2002]
(d) relates to employment or educational history;
(f) describes an individual's finances, income, assets, liabilities, net worth,
bank balances, financial history or activities, or creditworthiness;
(g) consists of personal recommendations or evaluations, character references
or personnel evaluations; or
The appellant submits that neither of the presumptions in section 21(3)(b) or (f) apply to the
information at issue as the police investigations into these matters have long since been
completed. The appellant also suggests that any reference to payments received by Ministry
employees as retirement packages cannot be described as information about that individual’s
“finances, income, assets, net worth, financial history or financial activities”, as is required by
section 21(3)(f). The appellant adds that the disclosure of the personal information of a deceased
individual would not result in an unjustified invasion of that person’s personal information as a
deceased individual would not be exposed unfairly to pecuniary or other harm (section 21(2)(e)),
nor would disclosure damage a deceased person’s reputation (section 21(2)(i)).
Application of the Presumptions in Section 21(3)
In my view, the presumptions in section 21(3) apply in a limited fashion to the remaining
information. Specifically, I find that Records 3-4 and 221-222 (and 233-234) of Record Group
C contain information which relates to the medical, psychiatric or psychological history,
diagnosis, condition, treatment or evaluation of several former Ministry clients under section
21(3)(a). As such, I find that these records are subject to the presumption in section 21(3)(a). In
addition, I find that Record 221-222 (and 233-234) contain information relating to the
employment history as of a former Ministry client. This information is subject to the
presumption in section 21(3)(d).
However, I find that the other records remaining at issue were not compiled, nor are they
identifiable, as part of a law enforcement investigation within the meaning of section 21(3)(b).
The records were created long after the involvement of the police in the matter had concluded.
Rather, the records were created as part of the Ministry’s response to the civil proceedings
initiated by several former Ministry clients. As such, I find that section 21(3)(b) has no
application to these documents. In addition, I find that none of the remaining records contain
information which falls within the presumptions in sections 21(3)(f) or (g).
Factors Favouring Privacy Protection Under Section 21(2)
Section 21(2)(e)
I find that the disclosure of the personal information remaining at issue would not result in an
individual being unfairly exposed to pecuniary or other harm under section 21(2)(e). The
Ministry simply states that it is relying on the content of the records in support of this contention.
Based on my review of the information in these particular records, however, I cannot agree. In
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[IPC Order PO-1999/March 13, 2002]
my view, the disclosure of the information, other than that which is subject to the presumptions
in sections 21(3)(a) or (d), could not reasonably be expected to result in harm, pecuniary or
otherwise, to any individual.
Section 21(2)(f)
I accept the Ministry’s characterization of the information remaining at issue as being “highly
sensitive”, as contemplated by section 21(2)(f). The records contain references to civil
proceedings which were instituted by young offenders who made allegations of abuse by staff
employed by the Ministry. In my view, the records are by their very nature, highly sensitive
within the meaning of section 21(2)(f). I find that the references to the young offenders and the
Ministry staff accused of harming them contained in Records 13-17 of Record Group B
(duplicated at Record 29-33 of Record Group C), Records 3-4, 105, 111, 150-155 and 221-222
(duplicated at Record 233-234) of Record Group C is “highly sensitive” information.
Section 21(2)(h)
Records 3-4 and 221-222 (and 233-234) of Record Group C are letters from counsel for a group
of former Ministry clients to the Ministry advising that legal action on their behalf was being
contemplated. These letters give no explicit indication that they were submitted with an
expectation of confidentiality or on a “without prejudice” basis, under section 21(2)(h). In the
case of Record 3-4, however, counsel for the individual Ministry clients indicated his intention
to seek an order banning the publication of their names. In my view, this fact points to an
expectation on the part of the writer of the letter that at least the names of the individuals were
being provided in confidence. I am satisfied, accordingly, that the names of the former Ministry
clients included in the claim was supplied to the Ministry in confidence and that the
consideration listed in section 21(2)(h) applies to this information.
Section 21(2)(i)
I further find that the disclosure of the contents of Records 3-4 and 221-222 (and 233-234) could
reasonably be expected to result in unfair damage to the reputations of the former Ministry
clients whose names appear therein, within the meaning of section 21(2)(i). The claims set out
the nature of the allegations made against Ministry staff and the involvement of the former
clients in exploitative relationships. I find that the factor listed in section 21(2)(i) is a relevant
consideration weighing against the disclosure of Records 3-4 and 221-222 (along with 233-234)
from Record Group C.
Factors Weighing in Favour of Disclosure Under Section 21(2)
The appellant has not made any specific reference to the application of the considerations listed
in section 21(2) to the information in the records. Her arguments in favour of a public interest in
the disclosure of the records under section 23 are, however, equally applicable to the factor
described in section 21(2)(a) as:
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[IPC Order PO-1999/March 13, 2002]
the disclosure is desirable for the purposes of subjecting the activities of the
Government of Ontario and its agencies to public scrutiny.
I find that this is a consideration which merits significant weight in favour of the disclosure of
the information in those records which relate to the Ministry’s response to the allegations made
concerning its employees’ conduct. However, the information in the records which are under
consideration in this discussion does not relate to the actual activities or the conduct of the
Ministry in response to the allegations. Rather, it is more narrowly focussed on the allegations
themselves and the Ministry’s fulfillment of its legal responsibilities in responding to the clients’
lawsuits. As such, I find that the consideration in section 21(2)(a) is of little relevance to the
personal information contained in these particular documents.
Balancing the Considerations Under Section 21(2)
In my view, the considerations weighing in favour of the non-disclosure of the information
contained in Records 3-4 and 221-222 (along with 233-234) from Record Group C are more
cogent than the factors favouring disclosure. I find, therefore, that the disclosure of the personal
information in these records would result in an unjustified invasion of the personal privacy of the
former Ministry clients. The personal information contained in these records is, accordingly,
exempt under section 21(1).
Similarly, I find that the references to the Ministry’s former clients, including their names and
other identifying information, along with that of the persons who were accused of abuse, found
in Records 13-17 of Record Group B and in Records 105, 111 and 149-155 of Record Group C
would constitute an unjustified invasion of the personal privacy of these individuals.
Accordingly, the personal information contained in these records should not be disclosed as it is
exempt under section 21(1).
I find, however, that the disclosure of the remainder of the information in Records 13-17 of
Record Group B and in Records 105, 111 and 149-155 of Record Group C (those portions which
do not contain personal information) would not constitute an unjustified invasion of personal
privacy. As the section 21(1) exemption does not apply to these portions of the records, and no
other mandatory exemptions apply to them, they ought to be disclosed.
I have provided the Ministry with highlighted copies of Records 13-17 of Record Group B and
in Records 105, 111 and 149-155 of Record Group C. The highlighted portions of these records
are not to be disclosed to the appellant.
PUBLIC INTEREST IN DISCLOSURE
The appellant submits that, in the circumstances of this appeal, there exists a compelling public
interest in the disclosure of the information contained in the records at issue under section 23 of
the Act, which reads:
- 14 -
[IPC Order PO-1999/March 13, 2002]
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21
does not apply where a compelling public interest in the disclosure of the record
clearly outweighs the purpose of the exemption.
The “public interest override” provision in section 23 does not apply to records which are
subject to the section 19 solicitor-client privilege exemption. As the vast majority of the records
at issue in this appeal have been found to be exempt under that section, I will only address the
application of section 23 to those records and parts of records which I have found to be exempt
under section 21(1).
For section 23 to apply, two requirements must be met. First, there must exist a compelling
public interest in the disclosure of the records. Second, this interest must clearly outweigh the
purpose of the exemption [Order P-1398, upheld on judicial review in Ontario (Ministry of
Finance) v. Ontario (Information and Privacy Commissioner), [1999] O.J. No. 488 (C.A.)].
Is There a Compelling Public Interest?
In Order P-984, Adjudicator Holly Big Canoe discussed the first requirement referred to above:
“Compelling” is defined as Arousing strong interest or attention” (Oxford). In
my view, the public interest in disclosure of a record should be measured in terms
of the relationship of the record to the Act’s central purpose of shedding light on
the operations of government. In order to find that there is a compelling public
interest in disclosure, the information contained in a record must serve the
purpose of informing the citizenry about the activities of their government,
adding in some way to the information the public has to make effective use of the
means of expressing public opinion or to make political choices.
If a compelling public interest is established, it must then be balanced against the purpose of any
exemptions which have been found to apply. Section 23 recognizes that each of the exemptions
listed, while serving to protect valid interests, must yield on occasion to the public interest in
access to information which has been requested. An important consideration in this balance is
the extent to which denying access to the information is consistent with the purpose of the
exemption.[Order P-1398]
In support of her contention that there exists a public interest in the disclosure of the records, the
appellant submits that:
. . . there has been a significant, if not overwhelming public concern about the
allegation of abuse of authority by Ministry officials with respect to sexual abuse
of minors. At risk is the safety of the children of Canadian communities. The
conduct of not only the employees of the ministry, but other people in authority in
Cornwall is a matter of public concern, not only to discover the truth of the
situation, but to allow communities to take measures to prevent any such
untoward events repeating themselves. The Ministry can only have an interest in
- 15 -
[IPC Order PO-1999/March 13, 2002]
protecting itself from the revelation of the potentially abusive activities of its
employees. If the information sought does not reveal improper conduct, then the
public should be aware of this in order to exonerate the individuals concerned. It
is the submission of the [appellant] that section 23 should apply in this case to
negate exemptions sought by the Ministry of Corrections. Two of the individuals
about whom information is sought are deceased and therefore cannot be harmed
by the revelation of information. Given the substantial and justified public
interest in the question of the conduct of public officials in Cornwall, it is the
submission of the [appellant] that the public interest outweighs the purpose of the
exemption.
There can be no dispute that the subject matter of the records at issue has been the subject of a
great deal of public interest over the past number of years. I have no difficulty in agreeing with
the position taken by the appellant that there exists a compelling public interest in the disclosure
of the information contained in the records at issue in this appeal, taken as a whole. It should be
noted, however, that section 23 has potential application only to those records which I have
found, in whole or in part, to be exempt under section 21(1).
Does the Public Interest Outweigh the Purpose of the Section 21(1) Exemption?
It is important to note that section 21 is a mandatory exemption whose fundamental purpose is to
ensure that the personal privacy of individuals is maintained except where infringements on this
interest are justified. In my view, where the issue of public interest is raised, one must
necessarily weigh the costs and benefits of disclosure to the public. As part of this balancing, I
must determine whether a compelling public interest exists which outweighs the purpose of the
exemption. [Order PO-1705]
Under section 1 of the Act, the protection of personal privacy is identified as one of the central
purposes of the Act. It is important to note that section 21 is a mandatory exemption whose
fundamental purpose is to ensure that the personal privacy of individuals is maintained except
where infringements on this interest are justified.
Commenting generally on the personal privacy exemption under the Freedom of Information
scheme, the drafters of Public Government for Private People: The Report of the Commission
on Freedom of Information and Individual Privacy/1980, vols. 2 and 3 (Toronto: Queen’s
Printer, 1980) (the Williams Commission Report) indicated that the legislation must take into
account situations where there is an undeniably compelling interest in access, situations where
there should be a balancing of privacy interests, and situations which would generally be
regarded as particularly sensitive in which case the information should be made the subject of a
presumption of confidentiality. In this regard, the Williams Commission Report recommended
that [a]s the personal information subject to the request becomes more sensitive in nature ... the
effect of the proposed exemption is to tip the scale in favour of non-disclosure”.[Order MO-
1254]
- 16 -
[IPC Order PO-1999/March 13, 2002]
In my discussion of section 21(1) above, I found that the contents of Records 3-4 and 221-222
(and 233-234) in their entirety, and the undisclosed portions of Records 13-17 of Record Group
B and in Records 105, 111 and 149-155 of Record Group C are highly sensitive as they identify
both the victims and the alleged perpetrators, of sexual abuse. I find this information to be of the
most sensitive type. As a result, in balancing the public’s right to have access to the information
contained in these records against the privacy of the victims and the alleged perpetrators, the
privacy interests must prevail. I find that the public interest in the disclosure of the information
contained in these records, however compelling, does not outweigh the principles of privacy
protection enshrined in section 21(1). Section 23, does not, therefore, have any application in
the circumstances of this appeal.
ORDER:
1. I order the Ministry to disclose to the appellant those portions of Records 13-17 of Record
Group B and Records 105, 111 and 149-155 of Record Group C which are not highlighted,
along with Records 104 (and its duplicate at 341), 106 (which is duplicated at 344), 107-
110 (duplicated in part at 345 and 346), 112 and 113 from Record Group C, in their
entirety.
2. I uphold the Ministry’s decision to deny access to the remaining records at issue in this
appeal.
3. My order for disclosure of records under Provision 1 of this order is stayed pending the
disposition by the Supreme Court of Canada of the current judicial review of Orders
PO-1618, PO-1627 and PO-1658.
4. In order to verify compliance with the provisions of this order, I reserve the right to require
the Ministry to provide me with a copy of the records that are disclosed to the appellant
pursuant to Provision 1.
Original Signed By: March 13, 2002
Donald Hale
Adjudicator
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Legislation
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Signed by
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Donald Hale
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Published
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Mar 13, 2002
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Type
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Order
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Orders and Reports Considered
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PO-2102-R
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Judicial Review
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Institution's and Requester's applications dismissed January 29, 2008
Ontario (Ministry of Correctional Services) v. Goodis, [2008] O.J. No. 289, 89 O.R. (3d) 457, 290 D.L.R. (4th) 102 (Div. Ct.)
Divisional Court Decision
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