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Document
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PO-1789
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File #
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PA-990226-1
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Institution/HIC
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Ministry of the Solicitor General
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Summary
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BACKGROUND AND NATURE OF THE APPEAL An uninsured driver was killed in a motor vehicle accident in June 1994. A passenger injured in this accident commenced an action against the uninsured driver. Because no defence was filed, the passenger notified the Motor Vehicle Accident Claims Fund (the Fund). The Fund then appointed legal counsel to defend the action on behalf of the estate of the deceased driver. The purpose and workings of the Fund were described by Adjudicator Holly Big Canoe in Order P-538 as follows: The Fund was created in the 1960s to provide relief for persons injured by uninsured motorists. Where an accident occurs in which a person is injured by an uninsured driver, the injured party has the option of making an application for payment from the Fund or of commencing an action against the uninsured driver. In cases where the injured party chooses to commence a legal action against the uninsured driver, the uninsured driver often does not file a defence. The injured party (the plaintiff) notifies the Fund that the defendant is in default in defending the claim and the Fund responds to the claim and defends or settles the action. All acts done by the Fund in accordance with the lawsuit are deemed to be the acts of the defendant. Where the Fund cannot settle the action directly, it often retains counsel to conduct the defence of the action. After settlement or trial, the Fund pays the claim to the plaintiff after a judgment is taken out and assigned to the Minister, to whom the Fund is responsible. The Fund then attempts to recover the money from the defendant. Counsel for the Fund submitted a request to the Ministry of the Solicitor General and Correctional Services (now the Ministry of the Solicitor General) (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for a copy of the Coroner's Report regarding the deceased driver. The Ministry identified a one-page responsive record titled "Coroner's Investigation Statement" dated August 24, 1994, and denied access to it pursuant to section 21 of the Act . The Ministry relied on the "presumed unjustified invasion of personal privacy" under sections 21(3)(a) and (b) and the factor listed under section 21(2)(f) in support of this exemption claim. The requester (now the appellant) appealed the Ministry's decision claiming that "[i]n order to fully and properly defend the Estate of [the deceased], we require a copy of the coroner's report concerning the death of [the deceased]." During mediation, it became apparent that the appellant was relying on section 8 of the Motor Vehicle Accident Claims Act (the MVACA ), which gives the Minister of Finance (the member of the Executive Council assigned responsibility for administering the MVACA ) certain powers to defend claims made against the Fund. I sent a Notice of Inquiry to the Ministry and the appellant, and received written representations from both parties. I also received unsolicited submissions from a third party involved in the litigation. In its representations, the Ministry withdrew its reliance on 21(3)(b) of the Act . DISCUSSION: What rights does the Fund have, by virtue of the MVACA , to access personal information of a deceased individual whose interests are being represented by the Fund? Sections 7 and 8 of the MVACA provide, in part: 7. (1) Subject to section 8, where a person recovers in any court in Ontario a judgment for damages on account of injury to or the death of any person or loss of or damage to property occasioned in Ontario by a motor vehicle owned or operated by the judgment debtor within Ontario, upon the determination of the proceeding, including any appeals, the person may apply, in the form prescribed by the Lieutenant Governor in Council, for and the Minister shall pay the amount of the judgment or of the unsatisfied portion thereof out of the Fund, provided that, in respect of a judgment for loss of or damage to property, only that amount by which the judgment exceeds $100 is payable out of the Fund. (2) Where an application is made to the Minister under subsection (1), the Minister at any time within thirty days of the receipt of the application or within such further time as may be allowed upon application to a judge of the Ontario Court (General Division) [Superior Court of Justice] give written notice to the applicant of any objection to payment of the judgment or part of the judgment, and, where the Minister gives the notice, the applicant may apply to a judge of the Court for a finding or determination in respect of any matter in connection with the application for payment out of the Fund. (3) The Minister shall not pay out of the Fund any amount in respect of a judgment unless the judgment was given in an action brought against all persons against whom the applicant might reasonably be considered as having a cause of action in respect of the damages in question and prosecuted against every such person to judgment or dismissal. 8. (1) Section 7 does not apply in the case of a judgment that has been signed in an action in which, (a) [Repealed] (b) the defendant did not file a statement of defence; or (c) the defendant did not appear in person or by counsel at the trial; or (d) the defendant did not appear in person at an examination for discovery; or (e) judgment was signed upon the consent or with the agreement of the defendant, unless the Minister has been given notice of such failure, consent or agreement and has been afforded an opportunity to take such action as he or she may consider advisable under subsection (2). (2) Within thirty days after receiving notice under subsection (1), the Minister may file a defence, make payment into court, appear by counsel at the trial or take such other action as he or she considers appropriate on behalf and in the name of the defendant, and may thereupon, on behalf and in the name of the defendant, conduct the defence, and may, where he or she considers it advisable to do so, consent to judgment in such amount as he or she may conside
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Legislation
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FIPPA
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21(1)(d)
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21(3)(a)
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66(a)
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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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May 24, 2000
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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