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Document
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PO-1855
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File #
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PA-000039-1
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Institution/HIC
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Ministry of the Attorney General
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Summary
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BACKGROUND: The Ministry of the Attorney General (the Ministry) provided background information, which is useful in understanding the context of this appeal: The information requested relates to consents executed by the Attorney General pursuant to s. 140 of the Courts of Justice Act . Subsection 140(1) provides that, where a judge of the Superior Court is satisfied, upon application, that a person has persistently and without reasonable grounds instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the judge may order that no proceedings may be instituted or continued by the person in any court. Subsection 140(2) provided that the written consent of the Attorney General was required prior to the commencement of any such application. Subsection (2) was repealed in December 1998, as part of a "red tape bill". ... The requesters were the subject of an application under s. 140 of the Courts of Justice Act . The application was instituted before s. 140(2) was repealed, and so, prior to the commencement of the application, the written consent of the Attorney General had to be obtained. In this case, two consents were provided. The first consent consented to the commencement of an application against the two individual requesters. The second consent consented to the commencement of an application against the requesters, their son, several corporations controlled by the requesters and/or their son, and another named individual. ... Prior to the initial hearing of the application, the requesters indicated that they intended to challenge the consent given by the Attorney General, and in February 1998 the requesters delivered a notice of constitutional question challenging the constitutionality of s. 140(2) of the Courts of Justice Act on the basis that it failed to set out minimal (or any) procedural requirements. The requesters and the other named individual purported to serve the Attorney General with a notice of examination, in an effort to cross-examine him on the consent given. ... The records responsive to this request are contained in the files of legal counsel in the Crown Law Office -- Civil and in the Constitutional Law Branch. Those files were maintained for the several purposes of (1) advising the Attorney General on the request for his consent under s. 140(2) of the Courts of Justice Act , and (2) advising the Attorney General with respect to a notice of examination served on him, (3) advising the Attorney General of the need to appear, through counsel, at the hearing of the application, and (4) preparing a response to the litigation challenging the constitutionality of s. 140(2) of the Courts of Justice Act . NATURE OF THE APPEAL: The Ministry received a request pursuant to the Freedom of Information and Protection of Privacy Act (the Act ) for access to all records for the period December 18, 1996 to March 13, 1998 including records relating to "the personal and corporations of [the requesters] in actions 96-CV-114359 and 98-CV-141167" in respect of a consent dated December 19, 1997. The request included access to factual information about the requesters and relating to "S140 of the CJA, brought by all applicants, including [another named individual]." The Ministry located 3367 responsive records, and made the following decisions: full access was granted to 19 records; access to 1512 records was denied under section 22(a) of the Act , on the basis that they consisted of court records and were currently available to the public (an index of these records was provided to the requesters); access to approximately 1692 records (drafts of the court documents), and 163 records (briefing materials, correspondence, Crown Counsels' notes, administrative forms and internal correspondence) under sections 49(a) and (b) of the Act , as they relate to sections 13(1), 19 and 21(1); Record 30 was denied on the basis that it contained information that was not responsive to the request. The requesters (now the appellants) appealed the Ministry's decision. As a result of mediation, the scope of the appeal was modified as follows: the appellants confirmed that they were not seeking access to the court documents withheld by the Ministry under section 22(a), thereby removing Records 1873-3384 from the scope of the appeal; the appellants confirmed that they were not seeking access to the drafts of court records, thereby removing Records 181-1872 from the scope of the appeal. Further mediation was not successful, so the appeal proceeded to the inquiry stage. I sent a Notice of Inquiry initially to the Ministry and two individuals whose interests may be affected by the outcome of this appeal - the appellants' son, and the other individual who had been a subject of the section 140 application (the affected person). I received representations from the Ministry and the affected person. The affected person did not consent to the disclosure of any records containing his personal information. The address provided to me for the appellants' son was the same as the appellant's address. Upon receipt of the Notice of Inquiry for their son, the appellants advised this Office that he had moved to the United States, however they were not prepared to provide me with his current address. As a result, I was unable to locate the appellants' son for the purpose of allowing him the opportunity to participate in this inquiry. I then sent the Notice of Inquiry to the appellants, together with the Ministry's representations. The appellants provided representations in response. In its representations, the Ministry withdrew their reliance on sections 49(a)/13(1) exemption claims. Because these are discretionary exemptions, I will not consider them further in this order. The Ministry also withdrew all exemption claims related to Records 93, 104, 105, 124, 125, 126, 154, 155 and 156. I will include a provision in this order requiring the Ministry to disclose these records to the appellants. RECORDS: A total of 163 records remain at issue in this appeal, as described in the body of this order. Included among these records is the portion of Record 30 which the Ministry claims is not responsive to the appellants' request. PRELIMINARY ISSUE: RESPONSIVENESS OF RECORD The Ministry claims that part of Record 30 is not responsive to the appellant's request. The Ministry submits: Page 30 is a memo from Crown Law Office -- Civil to the Constitutional Law Branch, forwarding two documents which are unrelated to each other. The second matter referred to in that memo was the Notice of Constitutional Question delivered by the requesters in February 1998. The first matter referred to in the memo was a separate legal proceeding, that had nothing to do with the requesters or the application under s. 140, and is, therefore, not responsive to the request. I accept the Ministry's position on this issue. The matter referred to in the first paragraph of Record 30 is not "reasonably related" to the appell
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Legislation
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FIPPA
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21(1)(f)
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Section 19
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jan 12, 2001
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Type
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Order
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