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Document
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P-1311
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File #
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P_9600238
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Institution/HIC
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Ministry of Finance
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Summary
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BACKGROUND: The appellant has had an ongoing dispute with the Ministry of Finance (theMinistry) and its predecessors concerning the assessment of his property formunicipal realty tax purposes. The appellant believes that errors have beenmade in his assessment because of an over measurement and that, as aconsequence, he has paid too much in property taxes. He submitted a request to the Ministry under the Freedom of Informationand Protection of Privacy Act (the Act ), for the following records: (1)Records confirming that the finished basement was measured; (2)A particular Assessment Review Board (ARB) order paper; (3)Notes taken by the Ministry's Valuation Officer of a telephoneconversation with another named individual, relating to the status of theappellant's complaint about his assessment; (4)Notations on several slips of paper, made by various assessors; (5)Records relating to actions taken by the Valuation Officer in connectionwith the appellant's complaint to the Ontario Ombudsman; (6)A directive specifying that calls concerning the appellant'sdisagreement with the Ministry be passed on to a named Ministry lawyer, or anyother correspondence referring to this issue; and (7)A copy of the correction of an alleged error in a letter to theOmbudsman by an Assistant Deputy Minister at the Ministry. The Ministry responded that access was refused because "we are of theopinion that your request is part of a pattern of conduct that amounts to anabuse of the right of access or would interfere with the operations of theMinistry". The appellant filed an appeal of this decision. After receiving the appeal,this office sent a Confirmation of Appeal/Notice of Inquiry to the Ministry. This notice indicated that the Ministry has the preliminary onus of establishingthat the request in question is either frivolous and/or vexatious, and that therules of procedural fairness require that the appellant be able to adequatelyrespond to the case put forward by the institution. In this case, once the representations of the Ministry were received, thisoffice provided the appellant with information about the Ministry's case, andthe opportunity to make representations. After receiving this information, theappellant submitted representations to this office. I have considered allmaterials submitted by the parties in reaching my decision in this appeal. DISCUSSION: FRIVOLOUS OR VEXATIOUS REQUESTS Several provisions of the Act and Regulation are relevant to theissue of whether the request is frivolous or vexatious. The provisions of the Act relating to "frivolous or vexatious" requests were addedby the Savings and Restructuring Act, 1996 . Regulation 460 (theRegulation), made under the Act , was amended shortly thereafter to addthe provision reproduced below. Section 10(1)(b) of the Act specifies that every person has a rightof access to a record or part of a record in the custody or under the control ofan institution unless the head of an institution is of the opinion on reasonablegrounds that the request for access is frivolous or vexatious. Sections 27.1(1)(a) and (b) of the Act indicate that a head whorefuses to provide access to a record because the request is frivolous orvexatious, must state this position in his or her decision letter and providereasons to support the opinion. Sections 5.1(a) and (b) of the Regulation provide some guidelines fordefining the terms frivolous and vexatious. They prescribe that a head shallconclude that a request for a record or personal information is frivolous orvexatious if: (a)the head is of the opinion on reasonable grounds that the request ispart of a pattern of conduct that amounts to an abuse of the right of access orwould interfere with the operations of the institution; or (b)the head is of the opinion on reasonable grounds that the request ismade in bad faith or for a purpose other than to obtain access. On appeal, the ultimate burden of demonstrating that there are reasonablegrounds for concluding that the request was frivolous or vexatious rests withthe institution, in this case the Ministry (Orders M-850 and M-860). The language used in the Ministry's decision letter is almost a verbatimquote of section 5.1(a) of the Regulation. In its representations, however, theMinistry states: The Ministry claims that this request is frivolous and vexatious under theauthority of section 5.1(b) of Regulation 460 ... I will therefore consider both parts of section 5.1 in assessing theMinistry's claim that the request is frivolous or vexatious. The submissions of the parties are lengthy and complex. To facilitate theanalysis of the submissions, I will begin by summarizing them. In my summary, Iwill dispose of submissions which, in my view, are either not of assistance, ornot substantiated. I will then consider those which are relevant in my subsequent analysis, under separate headings, of whether theMinistry has made out a case under sections 5.1(a) and (b) of the Regulation. The Ministry's Case The Ministry's counsel begins the Ministry's representations by stating asfollows: It is my conclusion that the Ministry made mistakes, but it made everyeffort to correct them available under the law. Having incorrectly assessed theproperty, the Ministry went to the municipality to ask them to change theassessment for prior years and to refund the taxes. The municipality would onlydo so for two previous years. It is very difficult to return taxes after theyhave been spent in a jurisdiction which literally finances itself one year at atime. Given the imprecise nature of assessments generally, wide refund policiescould bring municipalities to their knees. The law provides no recourse for oldmistakes. Attached to the Ministry's submissions is a letter to the appellant from theOntario Ombudsman. The letter indicates that the Ombudsman's investigation, inresponse to a complaint by the appellant, revealed "discrepancies" inthe way the appellant's assessment was handled, but not any intention to harassthe appellant as he had alleged. In addition, the Ministry argues that: ... this request has a purpose other than to obtain access[;] that purposeis to extend the appellant's assessment complaint into yet another forum (theIPC and from there the Criminal Court) and to show another forum how theAppellant was victimized by the incorrect assessment. Needling and annoying theMinistry is his only hope at this point by wasting of the Ministry's time on anassessment matter which was res judicata in 1993. In essence, these arguments appear to be aimed at suggesting that, becausethe Ministry is of the view that no further recourse is available to theappell
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Legislation
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FIPPA
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10(1)(b)
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27.1(1)(b)
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Section 27.1 (1)(a)
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Subject Index
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Signed by
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John Higgins
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Published
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Dec 02, 1996
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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