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Document
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PO-1936
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File #
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PA-000209-2
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Institution/HIC
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Office of the Public Guardian and Trustee
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Summary
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NATURE OF THE APPEAL:
The Office of the Public Guardian and Trustee (the PGT) received a request under the Freedom
of Information and Protection of Privacy Act (the Act) from a lawyer representing the Consul
General of Croatia for access to “information from the records held by the Public Guardian and
Trustee which will assist the Consulate General and its Foreign Ministry in Zagreb in Croatia, in
locating the next-of-kin of [a named individual].”
The PGT identified a number of responsive records, and denied access to them under section
21(1) of the Act (invasion of privacy).
The requester, now the appellant, appealed the PGT’s decision.
On appeal, the appellant indicated that he had initially made a request to the PGT outside of the
Act, and under the provisions of Article 37 of the Vienna Convention. The PGT responded to
this initial request by stating that it was actively seeking the next-of-kin of the deceased and that
Article 37 of the Vienna Convention did not apply. The appellant then submitted his request
under the Act, which resulted in this appeal. In his letter of appeal, the appellant raised the
possible application of the public interest override in section 23 of the Act, and the application of
section 42(e) of the Act for the purpose of complying with Articles 5 and 37 of the Vienna
Convention.
Mediation was not successful, and the appeal proceeded to the adjudication stage. I sent a Notice
of Inquiry initially to the PGT setting out the issues on appeal, and the PGT provided
representations in response. I then sent the Notice to the appellant along with a complete copy of
the PGT’s representations, and the appellant also provided representations. I then provided the
PGT with a Supplementary Notice of Inquiry, seeking representations on certain aspects of
section 21(1) not addressed in the original Notice. I also provided the PGT with a copy of the
appellant’s representations. The PGT provided additional representations in response to the
Supplementary Notice.
RECORDS:
There are a total of 165 records at issue in this appeal. [Record 8 is a duplicate of Records 17
and 71, Record 6 is a duplicate of Record 72, and Record 5 is a duplicate of Record 73]. The
records consist of copies of the social insurance card, health card, marriage certificate, a
Statement of Death form, memoranda, correspondence and copies of an address book, all of
which concern the deceased individual identified in the appellant’s request.
DISCUSSION:
PERSONAL INFORMATION
The section 21 personal privacy exemption applies only to information which qualifies as
“personal information”, as defined in section 2(1) of the Act. “Personal information” is defined,
in part, to mean recorded information about an identifiable individual, and includes the following
specific types of information:
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[IPC Order PO-1936/August 1, 2001]
(a) information relating to the race, national or ethnic origin, colour, religion,
age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric,
psychological, criminal or employment history of the individual or
information relating to financial transactions in which the individual has
been involved,
(c) any identifying number, symbol or other particular assigned to the
individual,
(d) the address, telephone number, fingerprints or blood type of the
individual,
(f) correspondence sent to an institution by the individual that is implicitly or
explicitly of a private or confidential nature, and replies to that
correspondence that would reveal the contents of the original
correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name where it appears with other personal information
relating to the individual or where the disclosure of the name would reveal
other personal information about the individual;
The PGT submits that the records contain personal information:
The record[s] which the Appellant is seeking includes information about the
deceased’s place and date of birth, social insurance number, health and other
cards and numbers, “long-form” death registration (to which public access is
restricted by the Registrar General of Ontario), marital status information and
information about the deceased=s maiden name, immigration … status details and
personal history including whether she was survived by a spouse, children or
siblings. As well, the record contains internal memoranda and correspondence
about the administration of the deceased’s estate and searches for her next-of-kin
by the Public Guardian and Trustee and her agents. It also includes information
obtained by the Public Guardian and Trustee about the deceased=s assets and
liabilities, her friends and neighbours and their views about the deceased.
The record also contains direct information about the deceased’s next-of-kin, their
names, current address, date and place of birth and marriage and death.
The appellant’s representations do not deal specifically with this issue.
- 3 -
[IPC Order PO-1936/August 1, 2001]
Having reviewed the records, I find that all of them contain the personal information of the
deceased individual identified by the appellant, including her social insurance number and health
card number [paragraph (c)], citizenship and immigration information [paragraph (a)], heir
information collected by the PGT [paragraphs (a), (f), (g) and (h)], and copies of the deceased
individual’s personal correspondence and personal records [paragraphs (c), (d) and (h)]. I also
find that some records contain personal information of other individuals, including heirs and
relatives of the deceased identified by the PGT, as well as friends and neighbours contacted by
the PGT for purposes of the administration of the deceased’s estate.
As far as the Statement of Death form is concerned, I find that it contains the personal
information of the deceased individual, including her name, date of birth, age, sex, address at the
time of death, ethnic origin, marital status, occupation, social insurance number, and other
information relating to her funeral and burial arrangements [paragraphs (a), (c) and (d)]. I also
find that this record contains the personal information of the “informant” (the term used to
describe the individual who provided the information contained on the record), including her
name, address and relationship with the deceased [paragraphs (a) and (c)]. Finally, I find that the
record contains the names of the deceased’s husband, as well as her parents and the parents‘
country of birth. Although the parents’country of birth may be known by the appellant, it is
technically the personal information of the mother and father under the Act [paragraph (a)]. The
information concerning the deceased’s husband is his personal information [paragraph (h)]. The
information relating to the funeral home and certification details concerning Ministry officials is
professional in nature and does not qualify as “personal information”.
The records do not contain any of the appellant’s personal information.
Section 2(2) of the Act states:
Personal information does not include information about an individual who has
been dead for more than thirty years.
The deceased died in 1999, so section 2(2) has no application to her personal information. I also
have nothing to indicate that any of the other individuals whose personal information is
contained in the records has been dead for more than 30 years. Given the age of the deceased at
the time of her death, if is reasonable to assume that her parents have been dead for a longer
period of time, and perhaps as long as 30 years, but I do not know this for certain based on the
information before me in this appeal. I also have no information to indicate that the deceased’s
husband has been dead for 30 years.
APPLICATION OF SECTION 42(E)
The appellant claims that section 42(e) of the Act permits the PGT to disclose the information.
Section 42(e) states:
An institution shall not disclose personal information in its custody or under its
control except,
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[IPC Order PO-1936/August 1, 2001]
for the purpose of complying with an Act of the Legislature or an
Act of Parliament or a treaty, agreement or arrangement
thereunder;
The appellant argues that Articles 5 and 37 of the Vienna Convention on Consular Affairs
authorizes the disclosure of the personal information at issue in this appeal, in particular the
following portions of these Articles:
Article 5
CONSULAR FUNCTIONS
Consular functions consist in:
(g) safeguarding the interests of nationals, both individuals and bodies
corporate, of the sending State in cases of succession mortis causa
in the territory of the receiving State, in accordance with the laws
and regulations of the receiving State;
(i) subject to the practices and procedures obtaining in the receiving
State, representing or arranging appropriate representation for
nationals of the sending State before the tribunals and other
authorities of the receiving State, provisional measures for the
preservation of the rights and interests of these nationals, where,
because of absence or any other reason, such nationals are unable
at the proper time to assume the defence of their rights and
interests;
Article 37
INFORMATION IN CASES OF DEATHS, GUARDIANSHIP OR
TRUSTEESHIP, WRECKS AND AIR ACCIDENTS
If the relevant information is available to the competent authorities of the
receiving State, such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to
inform without delay the consular post in whose district the
death occurred;
The appellant made the following submissions in support of his section 42(e) argument.
The position of the Appellant is that Article 37 does have the force of law in
Canada. We have been advised by officials of the Department of Foreign Affairs
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[IPC Order PO-1936/August 1, 2001]
and Trade that this is indeed the case and that Article 37 does have the force of
law in Canada but that Article 37 is not binding on the Public Guardian and
Trustee where the deceased intestate is a citizen of Canada.
Inasmuch as Article 37 of the Convention refers to “the case of the death of a
National of the Sending State” it is our position that the interpretation of this
Section by the Department of Foreign Affairs and Trade of Canada is not correct.
It is our position that the word “National” has a much broader meaning than the
word “citizen”.
Inasmuch as Article 37 of the Vienna Convention refers to “the case of the death
of a National of the Sending State” it is the position of the Consulate General of
the Republic of Croatia that there is also an obligation on the part of the
Government of Ontario (and the office of the Public Guardian and Trustee) to
report the death of an individual intestate where it would appear probable that the
next-of-kin of that individual reside in a country represented by Embassies or
Consulates of General of Sending States.
The PGT disagrees with the appellant’s position. It submits:
It is the Public Guardian and Trustee’s position that the provisions of the Vienna
Convention which are applicable in Canada, do not require this Office to provide
personal information to the consular authorities, either in addition to or in lieu of
conducting our own inquiries for next-of-kin. Article 37 was not incorporated in
the Foreign Missions and International Organizations Act and is therefore not
law in this county. The Public Guardian and Trustee asserts that Canada did not
agree to be bound to notify the consulate of a receiving State of incidents that
were outlined in Article 37. Notification regarding succession matters is not
included in Article 37. It is included in Article 5, which defines consular
functions but does not set out a positive duty to the receiving State in succession
matters.
In Order M-96, I made the following comments with respect to section 32(e) of the Municipal
Freedom of Information and Protection of Privacy Act, which is equivalent to section 42(e):
Section 32 is contained in Part II of the [Municipal] Act. This Part establishes a
set of rules governing the collection, retention, use and disclosure of personal
information by institutions in the course of administering their public
responsibilities. Section 32 prohibits disclosure of personal information except in
certain circumstances; it does not create a right of access. The [appellant’s]
request to the [institution] was made under Part I of the [Municipal] Act, and this
appeal concerns the [institution’s] decision to deny access. In my view, the
considerations contained in Part II of the [Municipal] Act, and specifically the
factors listed in section 32, are not relevant to an access request made under Part
I.
- 6 -
[IPC Order PO-1936/August 1, 2001]
[See also Orders P-679, P-940, M-1118]
Similarly in the present appeal, section 42(e) appears in Part III of the Act and, applying the
reasoning in Order M-96 and other subsequent orders of this Office, I find that this section is not
relevant in considering an access request, such as the appellant’s request, that is made under Part
II of the Act. Accordingly, I find that section 42(e) and Articles 5 and 37 of the Vienna
Convention are not relevant to my determination of whether or not the appellant is entitled to
responsive records in this appeal.
INVASION OF PRIVACY
Where an appellant seeks the personal information of another individual, section 21(1) of the Act
prohibits an institution from disclosing this information unless one of the exceptions in
paragraphs (a) through (f) of section 21(1) applies. In this case, the PGT claims that disclosing
the records would constitute an unjustified invasion of the personal privacy of the deceased and
the other individuals identified in the records, pursuant to section 21(1)(f). This section 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 personal privacy. 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; and section 21(4) refers to certain types of information the disclosure of which
does not constitute an unjustified 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).
Section 21(3)
The PGT relies on the presumptions contained in sections 21(3)(a), (f), (g) and (h), which read:
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;
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[IPC Order PO-1936/August 1, 2001]
(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
(h) indicates the individual’s racial or ethnic origin, sexual
orientation or religious or political beliefs or associations.
The PSG submits:
In this particular record, the following personal information would be presumed to
constitute an unjustified invasion of personal privacy under section 21(3):
1. there is information in the record with respect to opinions
by other persons about the deceased’s psychological history
(clauses (a) and (g));
2. there is information in the record with respect to the
deceased=s finances, income, assets, liabilities, net worth,
and financial history;
3. there is information in the record that indicates the
deceased=s ethnic origin and possibly her political beliefs,
particularly in the citizenship, immigration … records.
Having reviewed the records, I find that:
1. the information concerning the race, birthplace and original
citizenship of the deceased, her parents, or any other
individual indicates their “ethnic origin” and therefore falls
within the scope of section 21(3)(h), regardless of the fact
that some of this information may already be known by the
appellant (portions of Records 5, 6, 8, 10, 12, 13, 16, 17,
18, 19, 23, 25, 29-39, 46, 61, 62, 63, 70, 71, 72, 73, 78, 84,
86, 87, 88, 101, 113, 118, 119, 120, 121, 122 and 132);
2. Record 201 contains information concerning the deceased’s
finances and net worth at the time of her death, which
brings this information with the scope of section 21(3)(f);
and
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[IPC Order PO-1936/August 1, 2001]
3. references in the records to the psychological history of the
deceased fall within the scope of section 21(3)(a) (Records 79,
80 and 81).
I find that disclosure of all of the information falling within these three categories would
constitute a presumed unjustified invasion of the privacy of the deceased, her parents, or other
identifiable individuals. None of the requirements listed in section 21(4) apply to this
information and, as state above, a combination of factors under section 21(2) cannot outweigh a
presumption under section 21(3). Subject to my discussion of section 23 of the Act, this
information qualifies for exemption under section 21 of the Act and should not be disclosed.
Section 21(2)
The information which does not qualify under section 21(3), and remains at issue, consists of
information pertaining to the heirs which was collected by the PGT, the deceased individual’s
health and social insurance card information, certain information about the deceased and her
parents on the Statement of Death form, and other documents and/or correspondence created by
the PGT or provided to the PGT by others in the context of the administration of the deceased’s
estate, include correspondence to and from the deceased and copies of her address book.
The PGT submits that the factors listed in sections 21(2)(e), (f) and (h), which favour privacy
protection, are present and relevant with respect to the remaining information, and that section
21(2)(a) is not a relevant consideration in the circumstances of this appeal.
The appellant’s representations do not speak to any listed factors under section 21(2) which
favour disclosure, but the appellant does dispute the application of section 21(2)(e).
The relevant portions of section 21(2) read:
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,
(a) the disclosure is desirable for the purpose of subjecting the
activities of the Government of Ontario and its agencies to
public scrutiny;
(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;
- 9 -
[IPC Order PO-1936/August 1, 2001]
The PGT’s representations include the following submissions:
1. The request is not intended to allow the public scrutiny of the activities of the
Public Guardian and Trustee. There has not been any allegation by the
Appellant or his client that the activities of the Public Guardian and Trustee in
locating the next-of-kin have been in any way negligent or indicative of poor
administration of the estate.
2. With respect to records obtained from the next-of-kin in Europe, from Human
Resources Canada and the Registrar General of Ontario and other such
holders of personal information, the information is highly sensitive and has
been supplied by the record holder to the Public Guardian and Trustee or her
agent (or to the Deceased, during the Deceased=s lifetime), in confidence.
3. The Appellant represents a person claiming to be one of the next-of-kin and is
therefore in a position to verify the accuracy of allegations of the existence of
other next-of-kin of the same relationship of the deceased.
In addition, in considering whether disclosure of the personal information constitutes
an unjustified invasion of personal privacy, the Public Guardian and Trustee as head
of the institution, is required to consider her fiduciary duty as Estate Trustee
according to the applicable estate laws in Ontario, to search for the heirs and protect
the assets of the estate from unnecessary fees and expenses. If information is released
about the next-of-kin which lead other persons to locate and contact them ahead of
the Public Guardian and Trustee, the heir of the estate may be exposed to unnecessary
expense and diminution of the value of the estate ultimately paid to the heir. The
Public Guardian and Trustee asserts that a pecuniary harm to the heirs of the estate is
in effect a pecuniary harm to the estate itself.
The legal obligation to protect the assets of the estate applies to all estate trustees.
However, other estate trustees in the private sector are not subject to the provisions of
the Act and furthermore are not subject to the interest of third parties such as heir
tracers who wish to locate heirs first, ahead of the estate trustee, and obtain the heirs’
consent to a retainer agreement for their own commercial purposes.
The appellant objects to the PGT’s practice of out-sourcing private law firms to assist in locating
foreign heirs, and submits that use of embassies and consulates would be more expeditious and
cost-effective. He goes on to discuss his experience with a number of estates involving various
consular clients, and submits the following in support of his position that section 21(2)(e) does
not apply:
Fees charged by Embassies and Consulates General have always been considered
to be reasonable fees. I do not recall when an objection has ever been raised with
regard to legal fees allowed by an Embassy or a Consulate General.
- 10 -
[IPC Order PO-1936/August 1, 2001]
An important point which is being overlooked by the office of the Public
Guardian and Trustee is the fact that the fees charged by Embassies and
Consulates General and the legal fees allowed by an Embassy and Consulate
General (by way of agreements) are consistent with all estates, regardless of
value. [appellant’s emphasis]
There have been many estates finalized where the estates have been very small
estates. In many instances, estates have been finalized where the amount
available for distribution has been less than $5,000.00. In many instances, the
amount distributed has been substantially less than $5,000.00. In these instances,
regardless of how much time and effort goes into these estates, the fees of the
Embassy or Consulate General and the legal fees are set by way of agreement,
and in most instances, these fees will not exceed 10% of the net value of a small
estate.
Section 21(2)(a) - public scrutiny
The appellant has not raised this factor, and I find that it is not a relevant consideration in this
appeal.
Section 21(2)(e) - pecuniary or other harm
The parties have submitted conflicting representations on this factor. Based on the material
before me, I do not accept that this factor is applicable to the remaining information that relates
to the deceased individual. As far as the heirs or potential heirs are concerned, I accept that in
circumstances where an estate has not escheated to the Crown, that heirs or potential heirs could
be contacted by the PGT, private heir tracers and/or a consulate, and that different fees could be
involved, depending on circumstances. However, based on the appellant’s representations in this
case, I am not persuaded that any fees charged by his client in this regard would expose any heirs
or potential heirs to pecuniary or other harm or, more particularly, that any such exposure would
be unfair. Accordingly, I find that section 21(2)(e) is not a relevant consideration in this appeal.
Section 21(2)(f) - highly sensitive
In order for section 21(2)(f) to apply, the disclosure of the information at issue must reasonably
be expected to cause excessive personal distress to the individuals in question (Orders M-1053,
P-1681 and PO-1736). This factor has been found to apply, for example, to information about
professional misconduct (Order M-1035) and in circumstances involving allegations of
workplace harassment (Order P-685). In addition to some information which I have already
determined qualifies under the section 21(3) presumptions, I find that the deceased’s address
book, and information concerning the immigration process whereby the deceased entered
Canada, if disclosed, could reasonably be expected to cause personal distress to the individuals in
question, and section 21(2)(f) is a relevant consideration with respect to the portions of records
containing this type of information. While there may be some degree of sensitivity regarding the
other remaining personal information, it is not comparable to the types of information that have
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[IPC Order PO-1936/August 1, 2001]
been found to meet the section 21(2)(f) threshold, and I find that this factor does not apply to this
other personal information.
Section 21(2)(h) - supplied in confidence
Section 21(2)(h) requires that the personal information be supplied by the individual to whom it
relates in confidence. I find that none of the information at issue in this appeal was supplied to
the PGT by the deceased. Most of the other information was also obtained by the PGT through
the course of administering the deceased’s estate and not from the individuals to whom it relates.
Subject to two exceptions, there is no basis in the circumstances for a finding that any of it was
supplied in confidence by any of these other individuals.
The first exception is the information contained in Records 69, 70 and 71, which I have already
determined qualifies under the section 21(3)(a) presumption.
The second exception is the information contained on the Statement of Death form. Based on
the nature of this record and the circumstances under which it was created, I accept that an
“informant” would have a reasonably held expectation that the information provided would be
kept confidential except when used for purposes connected to the death of an individual, and that
this would include the administration of estates. However, given the nature of the information
and the need to use it in ways which would require disclosure in order to effectively administer
estates, I find that the section 21(2)(h) factor carries low weight in these circumstances (Order
PO-1923).
Unlisted Factor - diminished privacy interest after death
The factors listed in section 21(2) are not exhaustive. Unlisted factors may also be relevant,
depending on the particular circumstances of an appeal. One such unlisted factor was described
by me in Order PO-1717 as follows:
I agree with the statement made by former Commissioner Tom Wright in Order
M-50, that:
Although the personal information of a deceased individual
remains that person’s personal information until thirty years after
his/her death, in my view, upon the death of an individual, the
privacy interest associated with the personal information of the
deceased individual diminishes. The disclosure of personal
information which might have constituted an unjustified invasion
of personal privacy while a person was alive, may, in certain
circumstances, not constitute an unjustified invasion of personal
privacy if the person is deceased.
A decision to consider this factor, and the assessment of the weight to be given to
it in a particular appeal, must be made in the context of section 2(2).
- 12 -
[IPC Order PO-1936/August 1, 2001]
In that section, the legislature makes it clear that information about an individual
remains his or her personal information until thirty years after death, signalling a
strong intention to protect the privacy rights of deceased persons.
In addressing this unlisted factor, the PGT submits:
The Act contains no provisions or suggestions to the effect that, as an “unlisted
factor”, the clear language of the Act can be ignored and that the privacy interest
associated with the personal information of the deceased individual is somehow
diminished during that thirty-year period.
…
The Public Guardian and Trustee did not appeal IPC Order PO-1717 because it
only ordered, in effect, disclosure of the simple fact of escheat or distribution to
unnamed beneficiaries within the context of an escheated estate of an individual
dead for 23 years … The practical impact on the policy and practices of the PGT
were minimal, since the estate had escheated and the PGT was no longer actively
searching for heirs.
However, IPC Order PO-1736 and the subsequent reconsideration orders
expanded the scope of the disclosure to include address, last occupation and place
and date of death of the deceased in the context of estates not yet escheated, that
is, disclosure of personal information from the estates of individuals who had died
as recently as 1998 and were still being actively administered.
Order PO-1736 and this request, deal with very recent estates which have not
escheated and where the PGT is actively administering the estate and searching
for heirs. The impact of disclosure of the requested records in Order PO-1736
and in this request in particular would have a significant impact on the estate, on
the PGT’s duty to search for heirs, on the privacy rights of the deceased and third
parties, and potentially on the heirs themselves.
The Assistant Commissioner, in his letter to the Ministry dated June 5, 2001,
quotes former Commissioner Tom Wright in Order M-50 on the argument of
“diminished privacy interest after death”. The former Commissioner clearly
states that such disclosure “may” be justified “in certain circumstances”. The
Public Guardian and Trustee respectfully submits that in the circumstances of this
case, more particularly because of the nature of the information in the records
requested, there is no justification for disclosure based on any unlisted factors. …
Consistent with the past orders identified by the PGT, I have determined in this case that, because
the deceased has not been dead for 30 years, the information about her and others contained in
the records falls within the scope of section 2(2). I also accept that the unlisted factor
“diminished privacy interest after death” should be applied with care, given the wording of this
section. Each case must be carefully considered on its particular facts and circumstances.
- 13 -
[IPC Order PO-1936/August 1, 2001]
In the present case, the deceased died in 1999, which means that she has only been dead for
approximately two years. This is similar to the situation faced by Senior Adjudicator David
Goodis in Order PO-1736, where he was dealing with individuals who were dead for a relatively
short period of time. Orders PO-1717 and PO-1923, on the other hand, dealt with situations
where the deceased had been dead for more than 20 years. As far as the deceased is concerned,
in my view, the unlisted factor of “diminished privacy interest after death” is relevant in this
appeal, as it was in Order PO-1736. However, unlike Orders PO-1717 and PO-1923, where this
factor reduced the privacy interests of the deceased significantly, in this case, I find that the
privacy interests of the deceased, like those in Order PO-1736, are only moderately reduced, and
not eliminated. Given that the husband and the parents of the deceased have likely been dead for
longer, I find that their privacy interests have been reduced to a more significant degree but, in
the absence of any evidence to establish that any of them has been dead for 30 years, these
interests have also not been eliminated.
Unlisted factor - benefit to unknown heirs
In Order PO-1717, I also refer to another unlisted factor when I state:
The appellant identifies another unlisted factor. He submits that disclosure of the
requested information pertaining to the deceased=s estate will help unknown heirs
recover funds that they would otherwise be unlikely to receive. I considered this
factor in Order P-1493, involving a request by an heir tracer to the Ministry of
Consumer and Commercial Relations for access to marriage and death records. In
Order P-1493, I stated:
In the appellant=s view, disclosure of the records would serve to
benefit individuals who would otherwise never know and never be
able to prove their entitlement under an estate. Although not
directly related to any of the section 21(2) considerations, I find
that this is an unlisted factor favouring disclosure.
Similarly, I find that this unlisted factor is a relevant consideration in the present
appeal.
In the present appeal, the appellant states:
Croatia and a number of other European countries, and China, have had a special
interest in estates, and in matters arising out of the death of individuals who
immigrated to Canada and who in many instances have left their families,
including in some instances wives and children, in the countries from which they
came. The Embassy and Consulate General of the Republic of Croatia as well as
other European countries, and China, have for many years taken a special interest
in reporting the death of one of their Nationals to relatives in the country of
origin, whether or not there is any estate. In matters where there is an estate,
regardless of the value of the estate, they have been active in locating and
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[IPC Order PO-1936/August 1, 2001]
representing the next-of-kin and heirs-at-law. This is a recognized diplomatic
function as set out in Article [sic] of the Vienna Convention and is evidenced in
the letter dated February 10, 1995 from the Consul General of Great Britain.
The present practice of the Ministry of the Attorney General and the Office of the
Public Guardian and Trustee and their reluctance to involve the Embassies and
Consulates General in the administering of these estates will undoubtedly result in
a very substantial percentage of intestate estates remaining undistributed with the
rightful heirs never receiving the proceeds of these estates to which they are
entitled.
The PGT distinguishes the facts in Order PO-1717 to those in the present appeal, and in
particular points out that the file in this previous appeal had escheated to the Crown without heirs
having been located. The PGT notes that the records at issue in the present appeal and in Order
PO-1717 are different. In responding to the appellant, the PGT submits, in part:
The potential benefit to unknown heirs [in PO-1717] from disclosure of limited
information about escheated estates, is considerably different from the situation in
this case where the deceased died a short period of time before the request for
disclosure, where the PGT was actively searching for the heirs - and in fact, was
ultimately successful in locating them.
…
… the [PGT] as estate trustee discloses the name of the deceased to the
individuals that are identified as relatives. They are advised of the documentation
currently on hand, thus avoiding duplication of searches and additional cost to the
next-of-kin who may have a higher claim to the estate. They are told about the
documentation that still needs to be provided to the [PGT] in order to finalize
their claim. They are also advised of the approximate value of the estate, in order
to make a fully informed decision about seeking and paying for assistance from a
fee-for-service agent to assist them with their claim. The PGT respectfully
submits that without this information at hand, the next-of-kin may enter into a
representation and fee agreement that may not be in their best interests …
The appellant was advised by the PGT on June 29, 2000 that he and/or his clients
would be provided with personal information about a deceased for any estates
where the PGT’s own searches had been unsuccessful or would not be costeffective
in the circumstances. The PGT has in fact provided such information to
the appellant or his clients and to the diplomatic offices of other countries in a
number of estates where these circumstances apply. As estate trustee, the PGT
has the authority to disclose such information under section 66 of the Act.
…
In considering any “potential benefit to heirs” as an unlisted factor, the Assistant
Commissioner should also consider the likelihood of a conflict of interest between
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[IPC Order PO-1936/August 1, 2001]
the appellant’s clients and other potential heirs who may rank ahead of or equally
with the appellant’s clients under the rules for intestate distribution. If the
appellant’s consulate clients manage to locate and obtain powers of attorney on
behalf of some of the deceased’s next-of-kin, they stand to benefit by receiving a
percentage of the estate distribution, if the claim is successful. They have an
obvious interest in protecting and maximizing their own and the claimants’
financial interests. It would be contrary to their own and their clients’ best
interests for the appellant and the consul general to expend additional resources to
search for next-of-kin of a higher degree, who may in fact reside in another
country. By contract, [the PGT] has a legal duty to satisfy herself that all
potential heirs of a higher degree than the claimants represented by the appellant,
have been accounted for. This is best accomplished when [the PGT] conducts its
own searches, using professional, independent genealogists and researchers.
The PGT also submitted an affidavit from an employee who explains the current operations on
the PGT in this regard, including the policies and procedures used in searches for next-of-kin in
both Ontario and abroad.
Applying similar reasoning to that followed in Orders PO-1717, PO-1736 and PO-1923, I find
the possibility that disclosure of personal information about the deceased might result in
individuals successfully proving their entitlement to assets of estates is a relevant factor
favouring disclosure. While I acknowledge that the appellant is not a private heir tracer, his
rationale for seeking access to the record is analogous to that of a private heir tracer. The
appellant’s client is the Consulate of Croatia that is seeking access to information for the purpose
of locating potential heirs to the estates of individuals who died in Ontario but who may have
heirs in Croatia. I also acknowledge that the appellant’s client has other responsibilities, but in
the circumstances of this appeal, in my view, the Consulate of Croatia is performing a function
akin to a private heir tracer; attempting to identify and locate individuals who could be entitled to
the proceeds of an estate that would otherwise escheat to the Crown. Therefore, I find that the
considerations found relevant in past orders concerning private heir tracers apply in the same
manner to the appellant in the circumstances of this appeal.
I also accept that the PGT can reasonably require some evidence that a consulate requesting
records for the purpose of searching for next-of-kin has reason to believe that the deceased
individual was at one time a national of the country represented by the consulate. In some
instances, including this appeal, the requested records themselves may contain the necessary
evidence on their face.
Considering the particular circumstances of this appeal and the contents of the specific records
being requested by the appellant, I find that the potential for disclosure of certain information
contained on the Statement of Death form to assist individuals to prove their entitlement to assets
of estates which they may not have been able to otherwise is a relevant factor. The weight of this
factor varies according to the extent to which a particular item of personal information assists in
the identification of potential heirs. In the circumstances of this appeal, the names of the
deceased’s parents and husband, as well as the date of death, place of death, age, date of birth,
- 16 -
[IPC Order PO-1936/August 1, 2001]
martial status and occupation of the deceased could reasonably be expected to assist in the
identification of potential heirs. Applying similar reasoning to that followed by Senior
Adjudicator Goodis in Order PO-1736 and by me in Order PO-1923, I find that this unlisted
factor applies to a high degree as it relates to the date of death; to a moderate to high degree to
the place of death, date of birth, age, marital status and occupation of the deceased, and to the
names of the deceased’s husband and parents; and not at all to the deceased’s social insurance
number or any personal information of the informant.
Having reviewed the rest of the records, and in light of my decisions regarding the information
contained on the Statement of Death form, I find that the “benefit to unknown heirs” factor is not
a relevant consideration with respect to any personal information contained in the other records
at issue in this appeal.
Analysis of Factors
I found above that there is one listed factor favouring non-disclosure of the deceased’s address
book and information concerning the immigration process whereby the deceased entered Canada
(highly sensitive); and another listed factor favouring non-disclosure of certain personal
information contained on the Statement of Death form (supplied in confidence). I also found that
there is one unlisted factor favouring disclosure of the personal information of the deceased and
her parents (diminished privacy interest after death); and another unlisted factor favouring
disclosure of certain portions of the Statement of Death form (benefit to unknown heirs).
The PGT in its submissions suggested that I give very little weight to the two unlisted factors. It
states:
… The PGT respectfully submits that in this case, the deceased’s privacy
interests and those of other persons identified in the PGT file, far outweigh the
appellant’s access interests, which are commercial rather than personal, and any
benefit to unknown heirs.
The key consideration in determining the weight to be given to these unlisted
factors is the nature of the record that has been requested.
Decisions in Order PO-1717, Order P-1493, Order P-1187 and Order 71 all dealt
with escheated estates, where the deceased had been dead for at least 10 years,
where the [PGT] had not been successful in locating heirs, and where the PGT
was not in the process of actively searching for heirs. The IPC ordered the
disclosure of lists of names of estates that fell within certain parameters, or to
confirm the status of an escheated estate. That is a very different situation from
the matter under consideration in this Appeal, where the appellant is seeking
access to 165 pages from the estate file, containing such deeply personal and
sensitive information as the deceased’s health and social insurance numbers, her
marriage information, maiden name, letters from friends, refugee, immigration
and citizenship information, details about her family and events during World
- 17 -
[IPC Order PO-1936/August 1, 2001]
War II, information about her assets and liabilities, and information about the
[PGT’s] searches for her next-of-kin and contact information about the next-ofkin
themselves. A number of these records were obtained in confidence from
other record holders such as the Registrar General and immigration authorities.
Taking all representations and considerations into account, I have accorded the following
weights to the various factors:
• highly sensitive (section 14(2)(f)) - favours non-disclosure - moderate to high
weight
• supplied in confidence (section 14(2)(h)) - favours non-disclosure - low weight
• diminished privacy interest after death - favours disclosure - low weight for
personal information of deceased; moderate to high weight for personal
information of the deceased’s parents; no weight for personal information of the
informant
• benefit to unknown heirs (only relevant to Statement of Death form) - favours
disclosure - high weight for deceased’s date of death; moderate to high weight for
the names of the deceased’s husband and parents, and for the deceased’s date of
birth, place of death, age, marital status and occupation; no weight for the
deceased’s social insurance number and the personal information of the
informant; no weight for personal information contained in all other records
In balancing the various factors present in this appeal, I find that the factors favouring disclosure
outweigh the factor favouring privacy protection for certain specific information contained on
the Statement of Death form, but that the balance favours privacy protection for all other records.
Specifically, I find that disclosure of the date of death, date of birth, place of death, age, marital
status and occupation of the deceased, and names of the deceased’s husband and parents
contained on the Statement of Death form outweigh the privacy interests of the deceased and her
husband and parents in the circumstances. Although all of the information on the Statement of
Death form may have been provided by the “informant” in confidence, the information described
above is not highly sensitive and much of it may already be known by the appellant and others
familiar with the deceased during her lifetime. On the other hand, this information would be of
value in identifying potential estate heirs, which is an important public policy objective.
Accordingly, I find that disclosure of the date of death, date of birth, place of death, age, marital
status and occupation of the deceased, and the names of the deceased’s husband and parents
would not constitute an unjustified invasion of the privacy of the deceased or her parents within
the meaning of section 21(1)(f), and this information is therefore not exempt under section 21(1)
and should be disclosed to the appellant.
There are no factors favouring disclosure of the personal information of the “informant”
contained in the Statement of Death form, and I find that disclosure of this information would
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[IPC Order PO-1936/August 1, 2001]
constitute an unjustified invasion of her privacy. This information does not qualify for the
section 21(1)(f) exception, and is therefore exempt under section 21(1) of the Act.
I will provide the PGT with a highlighted version of the record identifying the portions that
should not be disclosed, either because they contain information that falls within the scope of one
of the presumptions under section 21(3) or because disclosure would constitute an unjustified
invasion of the privacy of the “informant”.
COMPELLING PUBLIC INTEREST
In his representations, the appellant argues that section 23 of the Act applies. Section 23 of the
Act states:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 , 21
and 21.1 does not apply where a compelling public interest in the disclosure of the
record clearly outweighs the purpose of the exemption.
I have found that certain personal information of the deceased and other identifiable individuals
falls within the scope of the sections 21(3)(a), (f) and (h) presumptions; that the personal
information of the “informant” and the social insurance number of the deceased contained in the
Statement of Death would constitute an unjustified invasion of privacy under section 21(1); and
that all other records qualify for exemption under section 21 of the Act. It is this information that
is subject to consideration under section 23 of the Act.
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), 118 O.A.C. 108 (C.A.),
leave to appear refused (January 20, 2000), Doc. 27191 (S.C.C.].
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 (Order P-984).
If a compelling public interest is established, it must then be balanced against the purpose of any
exemptions that 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 that 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).
The appellant provides lengthy submissions on what he views as the compelling public interest
in disclosure of information concerning deceased individuals to embassies and consulates in
order to assist in the identification of potential heirs. In my view, the appellant’s arguments have
- 19 -
[IPC Order PO-1936/August 1, 2001]
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Legislation
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Signed by
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Tom Mitchinson
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Published
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Aug 01, 2001
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Type
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Order
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Judicial Review
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Institution's application abandoned June 20, 2002
Public Guardian and Trustee v. Tom Mitchinson, Assistant Information and Privacy Commissioner, and John Doe, Requester, Tor. Doc. 543/01 (Div. Ct.)
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