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Document
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PO-1709
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File #
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PA-980331-1
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Institution/HIC
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Ministry of Health
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Summary
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BACKGROUND
Naturopathy has been a regulated health profession in Ontario since the early 1920s. It is presently
governed by the Drugless Practitioners Act and a regulation under that statute. The profession=s
governing body is the Board of Directors of Drugless Therapy. Naturopaths also have a professional
association called the Ontario Association of Naturopathic Doctors (the Association).
The Health Professions Regulatory Advisory Council (the Advisory Council) is established under
the Regulated Health Professions Act, 1991 (the RHPA; portions are attached as an appendix to this
order) and its primary duty is to advise the Minister of Health (the Minister) on matters relating to
the regulation of health professions (section 11). In January 1994, the then Minister made a referral
to the Advisory Council, under section 12 of the RHPA, concerning the regulation of naturopathy, as
follows:
... During the RHPA legislative process, certain decisions and commitments were
made with respect to the profession of naturopathy. Specifically, the Government
wishes to consider introducing a Naturopathy Act under the [RHPA]. However, this
cannot be done until the scope of the practice of the profession can be determined.
The terms of reference respecting this issue are as follows:
(i) how should the scope of the practice of naturopathy be
defined;
(ii) what controlled act(s), if any, should members of the
profession be authorized to perform.
In response, the Advisory Council sought input on the issues raised by the referral from a number of
participants, including patients, practitioners, the Canadian College of Naturopathic Medicine, the
Association and various health profession colleges regulated under the RHPA.
In July 1996, the Advisory Council issued a report to the (new) Minister, entitled ANaturopathy
Referral Advisory Memorandum’. The report sets out the Minister=s referral to the Advisory
Council, briefly describes naturopathy, Aarticulates the public interest principles which guide the
Advisory Council=s deliberations and advice’, Asummarizes the components of the scope of
practice framework under the RHPA’ and Adiscusses the criteria the Advisory Council developed
for assessing whether a profession should be regulated under the RHPA’.
In February 1999, the Minister referred the matter back to the Advisory Council, requesting that it
review the advice and recommendations set out in its July 1996 report.
NATURE OF THE APPEAL:
Counsel for the Association (the appellant) submitted a request under the Freedom of Information
and Protection of Privacy Act (the Act) to the Ministry of Health (the Ministry) for access to the
report (the record) .
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[IPC Order PO-1709/August 27, 1999]
The Ministry denied access to the record on the basis of section 13(1) (Aadvice or
recommendations’) and 18(1) (Aeconomic interests of Ontario’). The Ministry explained:
... [the record] contains [the Advisory Council=s] advice and recommendations to the
Minister of Health with respect to the regulation of naturopaths. The advice and
recommendations are still under consideration by the Ministry.
The Information and Privacy Commission has in the past determined that Athis
exemption applies to records that if released would inhibit the free flow of advice
and recommendations within the deliberative process of government decision making
and policy making’ (Order M-83). Disclosure of the report at this time would make
it difficult for [the Council] to provide candid advice regarding the regulation of
health professions in the future.
... Clause 18(1)(g) has been used to support [the section 18 exemption]. Disclosure
of the information contained in the report at this time would result in premature
disclosure of pending policy decisions regarding the regulation of naturopaths.
The appellant appealed the Ministry=s decision to deny access to the record. In his letter of appeal,
the appellant made submissions which suggested the possible application of the section 23 Apublic
interest override’ to the record.
During the mediation stage of the appeal, the appellant advised that the Association has been
working with the Ministry since 1994 to have its members recognized as distinct health
professionals, apart from drugless practitioners. The appellant explained that both the Ministry and
the Advisory Council undertook a review of this matter during which input was sought from his
client. Pursuant to earlier requests, the Ministry (according to the appellant) had advised that the
record Ahad not yet been finalized’ and that Athe whole matter was being reviewed by the newly
constituted Advisory Council.’
I sent a Notice of Inquiry setting out the issues in the appeal to the appellant and the Ministry. I
received representations from both parties.
DISCUSSION:
ADVICE OR RECOMMENDATIONS
Introduction
Section 13(1) of the Act states:
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-1709/August 27, 1999]
A number of previous orders have established that advice or recommendations for the purpose of
section 13(1) must contain more than mere information. To qualify as Aadvice’ or
Arecommendations’, the information contained in the records must relate to a suggested course of
action, which will ultimately be accepted or rejected by its recipient during the deliberative process
[Order P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario
(Information and Privacy Commissioner), Toronto Doc. 721/92 (Ont. Div. Ct.); Order P-883, upheld
on judicial review in Ontario (Minister of Consumer and Commercial Relations) v. Ontario
(Information and Privacy Commissioner) (December 21, 1995), Toronto Doc. 220/95 (Ont. Div.
Ct.), leave to appeal refused [1996] O.J. No. 1838 (C.A.)]. Information that would permit the
drawing of accurate inferences as to the nature of the actual advice or recommendation given also
qualifies for exemption under section 13(1) of the Act (Order P-233).
In Order 94, former Commissioner Sidney B. Linden commented on the purpose and scope of this
exemption. He stated that it A... purports to protect the free-flow of advice and recommendations
within the deliberative process of government decision-making and policy-making’. Put another
way, the purpose of the exemption is to ensure that:
... persons employed in the public service are able to advise and make
recommendations freely and frankly, and to preserve the head=s ability to take
actions and make decisions without unfair pressure [Orders 24, P-1363 and P-1690].
Ministry=s representations
The Ministry submits that the legislative scheme under the RHPA supports its position that section
13(1) applies in the circumstances. The Ministry refers specifically to sections 7, 11, 12 and 14 of
the RHPA, which establish the Advisory Council, set out its duties, describe the mechanism by
which the Ministry makes referrals to it and explain that the function of the Advisory Council is
Aadvisory only’. The Ministry submits that the above Aplaces [the Advisory Council] squarely
within the entities intended to be covered by’ section 13(1).
The Ministry argues that the record should be exempt on the basis that it is a draft document:
... the report is a provisional document, a draft, that was returned to [the Advisory
Council] for further review and consideration. This means that the entire document,
including background information, the presentation of facts, [the Advisory
Council=s] analysis and the conclusions and recommendations must be considered
within an ongoing deliberative process. [emphasis in original]
The Ministry cites Orders P-324 and P-1573 to support its contention that, in certain cases, a draft
document Amay be exempt’ under section 13(1).
The Ministry states:
Because the same issues have been referred back to [the Advisory Council], the
Ministry takes the position that the current record is only a draft. However, it does
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[IPC Order PO-1709/August 27, 1999]
contain advice and recommendations which the Minister may accept or reject
depending upon the content of the subsequent report received from [the Advisory
Council]. As noted by the Minister=s referral of the report back to [the Advisory
Council], she has neither accepted or rejected the advice and recommendations in the
record; therefore they still constitute part of the deliberative process.
Deliberations on the draft will be undertaken at two levels, by [the Advisory
Council] itself, and then again by the minister when it is eventually re-submitted.
The first set of deliberations, by [the Advisory Council], will encompass the entire
report including the presentation of background and factual information, as well as
the specific advice and recommendations. The second deliberation by the minister
will focus more on the specific advice and recommendations of [the Advisory
Council] regarding the future of this health profession.
The fact that [the Advisory Council] has been re-constituted since the report was first
prepared and sent to the Minister is an important consideration. A different
committee may have a different perspective than the first committee, may be more
liberal or conservative in their approach to matters of regulation. This means that the
content of the [record], from its background and factual information to the discussion
of issues and eventual advice and recommendations, could undergo only subtle
changes, or a complete re-working.
Due to the current status of the report it must therefore be characterized as a draft
document, the very content of which may be accepted or rejected as it is being
deliberated upon by [the Advisory Council] and then by the Minister. The entire
process is thus still at the advisory stage and disclosure of the record at this time
would interfere with the free flow of advice necessary to the next steps in the
deliberative process [emphasis in original].
The Ministry also submits that the record contains very specific advice and recommendations, which
are interspersed throughout the record. In addition, the Ministry states that much of the background
and factual information in the record is presented in such a manner that disclosure of this
information would reveal the substance of the advice and recommendations through the ability to
draw accurate inferences. The Ministry explains that the background, discussions and analysis Alead
directly to the
the advice and recommendations’ of the Advisory Council.
The Ministry cites examples from the record which it says either clearly constitute advice or
recommendations on their face, or which would reveal the advice or recommendations contained
elsewhere in the record.
The appellant=s representations
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[IPC Order PO-1709/August 27, 1999]
The appellant submits that section 13(1) of the Act must be interpreted Apurposively to ensure that
not every communication between public servants is exempted from disclosure as advice or
recommendations.’ The appellant states that the exceptions to the right of access should be
Alimited’ and Aspecific’, and cites section 1 and Order 94 to support this position. The appellant
further states:
The right of access is necessary to ensure the accountability of government
institutions in a free and democratic society. Any restrictions placed on that right of
access necessarily undermines the accountability of government institutions to those
whom their decisions affect.
The appellant goes on to submit that in order to qualify as Aadvice’ or Arecommendations’ under
section 13(1), the information must contain Amore than mere information and must prescribe a
course of action which will ultimately be rejected or accepted by the Minister of Health in the
deliberative process: descriptions of the purpose of the memorandum, the methodology of the
investigation or research, issues identified during the research, summaries of interviews obtained
from persons during investigation or research, and any supporting documentation cannot be
exempted under this section.’ The appellant cites Orders 118 and P-658 in this regard.
The appellant further submits that if the record Ais merely a study of the naturopathic profession, it
cannot be exempted from disclosure under section 13(1). If the memorandum merely raises issues or
problems with respect to the regulation of naturopaths under the RHPA it does not qualify for an
exemption under this section (Order P-547). If the memorandum merely contains findings or
conclusions as opposed to a suggested course of action, it cannot be exempted under section 13(1)
(Order 165).’
The appellant argues that even if the record is Aprescriptive’, it must suggest a Asingle course of
action’ in order to be exempt, and that if it suggests several options regarding the regulation of
naturopaths but Adoes not advocate one in particular, it cannot be exempted from disclosure (Orders
118, 398). If the memorandum merely analyses the merits of regulating naturopaths under the
RHPA and suggests alternatives to that mode of regulation, it cannot be exempted under this section
(Order 493).’
Findings
I accept the Ministry=s position that the role of the Advisory Council in submitting the record to the
Minister was Aadvisory’ in nature. This is borne out by the relevant provisions of the RHPA as
discussed above. I also accept that the record contains information which clearly, on its face,
constitutes advice or recommendations to the Minister on the matter of regulation of naturopaths.
This information includes but is not limited to information contained under headings incorporating
the words Aconclusions’ and Arecommendations’. In addition, I accept that much of the
information which is not on its face Aadvice’ or Arecommendations’ would, if disclosed, enable the
appellant to ascertain the nature of the advice or recommendations contained elsewhere in the
record.
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[IPC Order PO-1709/August 27, 1999]
I do not, however, accept the Ministry=s contention that the entire document is exempt under section
13(1) on the basis that it is a Adraft’. First, there is no indication on the face of the record that it
constitutes a Adraft’. I note that the covering letter to the Minister from the Advisory Council
enclosing the report also contains no indication that the record is a Adraft’. Second, the fact that the
Minister decided to refer the matter back to the Advisory Council for further consideration does not
itself lead to the conclusion that the record is a Adraft’. Even if the record could be characterized as
a draft, this alone does not bring it within the parameters of section 13(1). As stated by Adjudicator
Holly Big Canoe in Order PO-1690 in the context of a request for a draft environmental report :
The orders identified by the Ministry do not state that draft papers, by their very
nature, fall within section 13(1): they simply state that advice or recommendations
have been found within draft documents. In Order 128, all eight records at issue
were found to A... identify policy options or models, and most of them include a
discussion of the Apros’ and Acons’ of a particular option or model and the
recommendations of the author regarding a preferred course of action to be followed
by the institution ...’ Order P-320 dealt with small severances of advice within draft
documents, and Order P-1290 involved a 60-page record of comments received about
suggested changes to a draft document.
A draft document is not, simply by its nature, advice or recommendations [Order P-
434]. In order to qualify for exemption under section 13, the record must
recommend a suggested course of action that will ultimately be accepted or rejected
during the deliberative process of government policy-making and decision-making.
Although I am satisfied that the final version of this report is intended to be used
during the deliberative process, it simply does not contain advice or
recommendations, nor does it reveal advice or recommendations by inference.
Accordingly, I find that section 13(1) does not apply.
Accordingly, I find that only the portions of the record as described above fall within the scope of
section 13(1). For the reasons set out below, it is not necessary for me to describe more specifically
the portions of the record which contain this information.
EXCEPTIONS TO THE ADVICE OR RECOMMENDATIONS EXEMPTION
Introduction
I will now consider whether any of the mandatory exemptions contained in section 13(2) of the Act
apply to the record. In the circumstances of this case, section 13(2)(k) may be applicable. That
section reads:
Despite subsection (1), a head shall not refuse under subsection (1) to disclose a
record that contains,
a report of a committee, council or other body which is attached to an
institution and which has been established for the purpose of
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[IPC Order PO-1709/August 27, 1999]
undertaking inquiries and making reports or recommendations to the
institution;
Former Assistant Commissioner Irwin Glasberg in Order P-726 stated the following with respect to
the exceptions at paragraphs (f) and (g) of section 13(2):
Sections 13(2)(f) and (g) are unusual in the context of the Act in that they constitute
mandatory exceptions to the application of an exemption for discrete types of
documents, namely reports on institutional performance or feasibility studies. Even
if the report or study contains advice or recommendations for the purposes of section
13(1), the Ministry must still disclose the entire document if the record falls into one
of the section 13(2) categories.
Although Order P-726 did not consider section 13(2)(k), in my view, former Assistant
Commissioner Glasberg=s statements are equally applicable here since each of sections 13(2)(f), (g)
and (k) refer to discrete documents, whether they be Areports’ or Astudies’. As a result, if I find
that section 13(2)(k) applies, the entire record cannot qualify for exemption under section 13(1),
despite the fact that I have already found that it contains Aadvice’ and Arecommendations’.
Ministry=s representations
With respect to the section 13(2)(k) exception, the Ministry submits:
It is important to recall as per the RHPA scheme as described [earlier in] these
submissions, that the [Advisory Council] is not a Acommittee’, Acouncil’ or Aother
body’ that is Aattached’ to the Ministry, rather it its an independent body whose
duties are to advise the Minister on issues regarding the regulation of health
professions ... [The Advisory Council] does not provide advice to the Ministry; its
advice is provided to the Minister.
As mentioned [earlier in] this submission the role of [the Advisory Council] is
analogous to that of the Drug Quality and Therapeutics Committee. In the past the
IPC/O has found that Athe advice and recommendations of a drug advisory body,
created to assist a Minister, are included in this section’.
Earlier in its representations, the Ministry referred to Orders 68 and 128 to support its latter point
regarding the Drug Quality and Therapeutics Committee (DQTC).
Analysis
Areport’
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[IPC Order PO-1709/August 27, 1999]
The first question under section 13(2)(k) is whether the record qualifies as a Areport’. Previous
orders of this office have defined the word Areport’, as contained in section 13(2) as well as in other
sections, as follows:
The word Areport’ is not defined in the Act. However, it is my view that in order to
satisfy the first part of the test i.e. to be a report, a record must consist of a formal
statement or account of the results of the collation and consideration of information.
Generally speaking, results would not include mere observations or recordings of
fact. [Orders 200, M-265, P-363, upheld on judicial review in Ontario (Human
Rights Commission) v. Ontario (Information and Privacy Commissioner), Toronto
Doc. 721/92 (Ont. Div. Ct.)]
Here, although the record is entitled Amemorandum’, it consists of the Advisory Council=s formal
statement of the results of its collation and consideration of information it received from various
sources, including through research it had conducted and through input from various individuals and
groups it consulted. I also note that the cover letter from the Advisory Council accompanying the
record refers to the record as a Areport’. Further, in its representations, the Ministry used the word
Areport’ in a number of instances to describe the record. The fact that the Minister, after receiving
the report, decided to refer the matter back to the Advisory Council for Aadditional advice’ does not
negate the record=s characterization as a Aformal statement or account of the results of collection
and consideration of information.’
Acommittee, council or other body’
The Ministry submits that the Advisory Council is not a Acommittee’, Acouncil’ or Aother body’.
However, the name of this organization suggests the contrary. Moreover, by using the word Aother
body’, in my view, the Legislature did not intend the very restrictive view offered by the Ministry.
Rather, the wording of the provision suggests that it was intended to apply to any entity, body or
organization of a similar nature, as long as the other elements of paragraph (k) are met.
Aattached’
The Ministry argues that the Advisory Council is not Aattached’ to the Ministry, but is Aan
independent body whose duties are to advise the Minister on issues regarding the regulation of
health professions.’ The Ministry=s representations suggest that an Aindependent body’ cannot, by
definition, be considered Aattached’ to an institution, and that the two concepts are mutually
exclusive.
The word Aattached’ is defined as follows:
A term describing the physical union of two otherwise independent structures or
objects, or the relation between two parts of a single structure, each having its own
function ... [emphasis added]
Black=s Law Dictionary, 6th ed. (St. Paul: West, 1990), p. 125
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[IPC Order PO-1709/August 27, 1999]
In my view, the above definition indicates that two entities may be Aattached’ or joined in a
Aunion’, while still remaining Aotherwise independent’. Had the Legislature intended that section
13(2)(k) exclude bodies with some degree of independence, it could have used language to suggest
this, such as referring to the body as a Adepartment’, Abranch’ or Apart’ of the institution (see, for
example, section 2(3) of the Act=s municipal counterpart).
There are a number of factors which indicate that the Advisory Council is Aattached’ to the
Ministry, although it maintains some degree of independence. These factors are listed below:
$ the RHPA, the Advisory Council=s enabling legislation, is administered by
the Ministry [RHPA, section 1(1)];
$ the Advisory Council=s members are appointed by the Lieutenant Governor
in Council on the Minister=s recommendation [RHPA, section 7(2)];
$ the Advisory Council reports directly to the Minister [RHPA, section 11;
Advisory Council=s World Wide Web site ];
$ the Minister has a duty to notify the Councils of every health profession
College where the Minister suggests an amendment to the RHPA, a health
profession Act or a regulation under any of those Acts or a suggested
regulation under any of those Acts; submissions in response to a suggestion
are then made to the Advisory Council, as opposed to the Minister [RHPA,
section 13];
$ the Advisory Council appoints a Secretary, who carries out functions and
duties assigned by the Minister or the Advisory Council [RHPA, section 17];
$ the Advisory Council is a listed institution under the Act, whose designated
head is the Minister [Ontario Regulation 460, Schedule item 84.1];
$ the Government of Ontario Telephone Directory 1999, the Ontario
Government=s KWIC Index to Services 1999 and Management Board
Secretariat=s Directory of Records under the Act all list the Advisory
Council under the main heading AMinistry of Health’;
$ the Advisory Council is listed as a ASchedule I’ agency under the Ministry
of Health by the Ontario Government=s Public Appointments Secretariat;
Schedule I agencies are Amost closely associated with the government’ and
Aplay a direct role in achieving the government=s policies and programs [A
Guide to Agencies, Boards and Commissions 1992/19993; Secretariat=s
World Wide Web site ];
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[IPC Order PO-1709/August 27, 1999]
$ the Advisory Council is funded directly by the Consolidated Revenue Fund
(Ministry=s representations);
$ the Advisory Council=s employees are employed under the Public Service
Act and paid by the Ministry [RHPA, section 16(1); Ministry=s
representations];
$ the Advisory Council refers to itself as Aan agency of the Ministry of
Health’ [Advisory Council=s World Wide Web site ].
Thus, the above factors support the view that the Advisory Council, while it may maintain some
degree of independence, is Aattached’ to the Ministry for the purpose of section 13(2)(k) of the Act.
In addition, there is some doubt as to whether the Advisory Council has the degree of independence
suggested by the Ministry. The notion of independence is not readily apparent from the RHPA, and
it does not appear that there is a need for a high degree of independence. In this respect, the
Advisory Council is unlike the Judicial Appointments Advisory Committee (as it then was) in
Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.), where decisions regarding
the recommendation for judges for appointment were required to be made Aindependently and at
arm=s length from the Ministry’ (page 619), so as to avoid political influence over the selection of
members of the judiciary. In the case at bar, there is no comparable need for independence. I note
also that the relevant issue in Walmsley was whether the advisory body was a Apart’ of the
Ministry, which implies a closer relation than does the word Aattached’.
In my view, the relation between the Ministry and the Advisory Council is exactly the type of
relation that was intended to be captured by section 13(2)(k) of the Act.
Aestablished for the purpose of undertaking inquiries and making reports or recommendations’
As mentioned above, the Advisory Council=s chief duty is to advise the Minister on matters relating
to the regulation of health professions [RHPA, section 11]. To support this function, the Advisory
Council has the power to receive submissions from Councils of health professions Colleges [RHPA,
section 13(2)] and to engage experts or professional advisors to assist it [RHPA, section 16(2)]. In
the case of this referral, the Advisory Council Asought widespread public input’ from Aa large
number of participants’ who made Adetailed oral and/or written presentations’ to it. Ultimately, the
Advisory Council issued a report setting out the results of its inquiries and its recommendations.
Based on the above, it is clear that the Advisory Council is Aestablished for the purpose of
undertaking inquiries and making reports or recommendations.’
Ato an institution’
The Ministry submits that section 13(2)(k) does not apply because the Advisory Council provides
advice to the Minister, as opposed to the Ministry. In my view, this is a distinction without
substance. While section 13(2)(k) refers to reports or recommendations Ato an institution’, I do not
accept that this would not encompass a report or recommendation to the Minister, the individual who
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[IPC Order PO-1709/August 27, 1999]
presides over and has charge of the institution and all its functions [Ministry of Health Act, section
3(1)]. Moreover, the Act describes the Minister as the Ahead’ of the Ministry [paragraph (a) of the
definition of Ahead’ in section 2(1)], which supports the position that the Minister and the Ministry
are not distinguishable for this purpose. In my view, the Ministry=s interpretation would lead to an
absurd result where, for example, a report was made to a Deputy Minister or other senior Ministry
official and thus held not exempt under section 13(1), while a report of a similar nature would be
exempt under section 13(1), simply by virtue of it being made to the Minister.
Application of previous orders
The Ministry submits that the role of the Advisory Council is analogous to that of the DQTC and
that this office has found that Athe advice and recommendations of a drug advisory body, created to
assist a Minister, are included in’ section 13(1) of the Act. The Ministry refers to Orders 68 and
128 in this regard.
I would first point out that the Commissioner is not bound by the principle of stare decisis, and thus
is entitled to depart from earlier interpretations [Hopedale Developments Ltd. v. Oakville (Town)
(1964), 47 D.L.R. (2d) 482 (Ont. C.A.); Portage la Prairie (City) v. Inter-City Gas Utilities (1970),
12 D.L.R. (3d) 388 (Man. C.A.)].
In addition, both Orders 68 and 128 may be distinguished on their facts. At issue in Order 68 were
minutes of DQTC meetings, not characterized as reports. While Order 128 involved records which
might be characterized as reports, the only exception under section 13(2) that was considered was
paragraph (a); paragraph (k) does not appear to have been raised or considered. As a result, I am not
persuaded that section 13(2)(k) should be found inapplicable based on past orders cited by the
Ministry.
Conclusion
Based on the above, I conclude that all of the required elements for the exception at section 13(2)(k)
have been established. Accordingly, the record is not exempt under section 13(1) of the Act.
PROPOSED PLANS OF AN INSTITUTION
The Ministry claims that the record qualifies for exemption under section 18(1)(g) of the Act, which
reads:
A head may refuse to disclose a record that contains,
information including the proposed plans, policies or projects of an
institution where the disclosure could reasonably be expected to
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[IPC Order PO-1709/August 27, 1999]
result in premature disclosure of a pending policy decision or undue
financial benefit or loss to a person;
In order to qualify for exemption under section 18(1)(g) of the Act, an institution must establish that:
1. the record contains information including proposed plans, policies or
projects; and
2. disclosure of the information could reasonably be expected to result in:
(i) premature disclosure of a pending policy decision; or
(ii) undue financial benefit or loss to a person.
[Order P-229]
In Order P-726, former Assistant Commissioner Glasberg considered the application of section
18(1)(g) to two reports which together constituted a business review of the provincial parks system.
In this order, former Commissioner Glasberg stated:
I will turn first to the second part of the [section 18(1)(g)] test. In Order M-182,
Inquiry Officer Holly Big Canoe considered the municipal equivalent of section
18(1)(g) of the Act. In this decision, she found that the term Apending policy
decision’ contained in the second part of the test refers to a situation where a policy
decision has been reached, but has not yet been announced. More specifically, the
phrase does not refer to a scenario in which a policy matter is still being considered
by an institution.
The Ministry disagrees with this interpretation and submits that the appropriate
definition of a pending policy decision Acontemplates a situation that has started but
remains unfinished.’ I have carefully reflected on this argument.
The intent of section 18(1)(g) is to allow an institution to avoid the premature release
of a policy decision where that disclosure could reasonably be expected to harm the
economic interests of the institution. In my view, it follows that for this section to
apply, there must necessarily exist a policy decision which the institution has already
made. In the absence of such a determination, the assessment of harm would be an
entirely speculative exercise. In addition, the first part of the section 18(1)(g) test
makes specific reference to proposed policy decisions. In my view, the nature of this
wording also contemplates that the type of decision referred to in the second part of
the test will be one that has already been made.
For these reasons, I do not accept the interpretation which the Ministry has advanced
and prefer to follow the approach articulated in Order M-182.
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[IPC Order PO-1709/August 27, 1999]
To complete this analysis, I must determine whether the disclosure of the information
contained in the reports could reasonably be expected to result in undue financial
benefit or loss to a person. Following a careful review of the Ministry's
representations, I find that I have not been provided with sufficient evidence to
establish that such results are likely to occur.
Since the Ministry has failed to establish that either the first or second aspects of the
second part of the section 18(1)(g) test have been met, it follows that this exemption
does not apply to the information found in the two reports.
Applying this approach here, I find that disclosure could not reasonably be expected to result in
premature disclosure of a pending policy decision, since a policy decision has not yet been reached.
The Ministry has submitted that the matter of regulation of naturopaths is currently being deliberated
upon by the Advisory Council and the Minister, and that the Minister may adopt Asome, all or
none’ of the recommendations in the record. As a result, paragraph (i) of the second part of the test
does not apply.
The second part of the section 18(1)(g) test may still apply if it is established that disclosure of the
record Acould reasonably be expected to result in undue financial benefit or loss to a person’ under
paragraph (ii). The Ministry makes no specific submissions on this part of the test, and based on the
material before me I find that it does not apply.
Since the Ministry has failed to establish that either paragraph (i) or (ii) of the second part of the
section 18(1)(g) test applies, I find that this exemption does not apply to the record.
PUBLIC INTEREST IN DISCLOSURE
Because of my findings above, it is not necessary for me to consider the application of section 23 of
the Act in this appeal.
ORDER
1. I order the Ministry to disclose the record to the appellant in its entirety by September 20,
1999.
2. In order to verify compliance with this order, I reserve the right to require the Ministry to
provide me with a copy of the record which is disclosed to the appellant pursuant to
Provision 1.
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[IPC Order PO-1709/August 27, 1999]
Original signed by: August 27, 1999
David Goodis
Senior Adjudicator
APPENDIX
Regulated Health Professions Act, 1991 [excerpts]
1. (1) In this Act,
AAdvisory Council’ means the Health Professions Regulatory Advisory Council;
ACollege’ means the College of a health profession or group of health professions
established or continued under a health profession Act;
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[IPC Order PO-1709/August 27, 1999]
ACouncil’ means the Council of a College;
Ahealth profession’ means a health profession set out in Schedule 1;
Ahealth profession Act’ means an Act named in Schedule 1;
Amember’ means a member of a College;
AMinister’ means the Minister of Health.
2. The Minister is responsible for the administration of this Act.
3. It is the duty of the Minister to ensure that the health professions are regulated and
co-ordinated in the public interest, that appropriate standards of practice are
developed and maintained and that individuals have access to services provided by
the health professions of their choice and that they are treated with sensitivity and
respect in their dealings with health professionals, the Colleges and the Board.
7. (1) The Advisory Council is established under the name Health Professions
Regulatory Advisory Council in English and Conseil consultatif de réglementation
des professions de la santé in French.
(2) The Advisory Council shall be composed of at least five and no more than seven
persons who shall be appointed by the Lieutenant Governor in Council on the
Minister's recommendation.
(3) The Lieutenant Governor in Council shall designate one member of the Advisory
Council to be the chair and one to be the vice-chair.
8. A person may not be appointed as a member of the Advisory Council if the person,
(a) is employed in the public service of Ontario or by a Crown agency as
defined in the Crown Agency Act; or
(b) is or has been a member of a Council or College.
9. (1) Members of the Advisory Council shall be appointed for terms of two years.
(2) A person appointed to replace a member of the Advisory Council before the
member's term expires shall hold office for the remainder of the term.
(3) Members of the Advisory Council are eligible for reappointment.
(4) The initial members of the Advisory Council may be appointed for terms of one,
two or three years.
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[IPC Order PO-1709/August 27, 1999]
10. The members of the Advisory Council shall be paid the remuneration and
expenses the Lieutenant Governor in Council determines.
11. (1) The Advisory Council's duties are to advise the Minister on,
(a) whether unregulated professions should be regulated;
(b) whether regulated professions should no longer be regulated;
(c) suggested amendments to this Act, a health profession Act or a
regulation under any of those Acts and suggested regulations under
any of those Acts;
(d) matters concerning the quality assurance programs undertaken by
Colleges; and
(e) any matter the Minister refers to the Advisory Council relating to the
regulation of the health professions, including any matter described in
clauses (a) to (d).
(2) It is the Advisory Council=s duty to monitor each College=s patient relations
program and to advise the Minister about its effectiveness.
12. The Minister shall refer to the Advisory Council any issue within the matters
described in clauses 11(1)(a) to (d) that a Council or person requests the Minister to
refer to the Advisory Council unless, in the Minister=s opinion, the request is not
made in good faith or is frivolous or vexatious.
13. (1) If the Minister refers a suggested amendment to this Act, a health profession
Act or a regulation under any of those Acts or a suggested regulation under any of
those Acts to the Advisory Council, the Minister shall give notice of the suggestion
to the Council of every College within ten days after referring it.
(2) A Council may make written submissions to the Advisory Council with respect to
a suggestion within forty-five days after receiving the Minister=s notice of the
suggestion or within any longer period the Advisory Council may specify.
14. The function of the Advisory Council is advisory only and no failure to refer a
matter or to comply with any other requirement relating to a referral renders anything
invalid.
15. (1) The Advisory Council shall sit in Ontario where and when the chair
designates.
- 17 -
[IPC Order PO-1709/August 27, 1999]
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Legislation
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Signed by
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David Goodis
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Published
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Aug 27, 1999
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Type
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Order
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Judicial Review
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Institution's application dismissed by Divisional Court November 14, 2000
Ontario (Minister of Health) v. Goodis, [2000] O.J. No. 4944, Toronto Doc. 684/99 (Div. Ct.)
Divisional Court Decision
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