IPC - Office of the Information and Privacy Commissioner/Ontario

Français

Site Map

Advanced Search

Subject Index Listing

Reconsideration Table

Judicial Review of Municipal Orders

Judicial Review of Provincial Orders

Judicial Review of Privacy Complaint Reports

The Acts

Recent Orders

P-474

Document		P-474


File #		P-9200463


Institution/HIC		Ontario Hydro


Summary		ORDER BACKGROUND: A request was made to Ontario Hydro (Hydro) under the Freedom of Information and Protection of Privacy Act (the Act ) for access to documents relating to 23 projects originally considered by Hydro staff for inclusion in the rehabilitation of the Bruce-A Nuclear Generating Station, and which were subsequently excluded from that project. Hydro issued an interim decision in which it proposed to grant partial access to the records at issue. Hydro also provided the requester with a fee estimate of $11,340 for search time and for the preparation of the relevant records. The requester subsequently sought a fee waiver from Hydro on the basis that dissemination of the records would benefit public health or safety pursuant to section 57(4)(c) [previously section 57(3)(c)] of the Act . Hydro decided not to waive the fee, and the requester appealed both the amount of the fee estimate, and the decision not to waive the fee. Through mediation, the request was narrowed significantly to focus upon eight projects identified by the appellant. Hydro revised its fee estimate to $4,240 and then to $1,335 following final confirmation from the appellant that the number of records sought had been reduced. Further mediation was not possible, and notice that an inquiry was being conducted to review Hydro's decision was sent to the appellant and to Hydro. Written representations were received from both parties. PRELIMINARY MATTER Hydro's representations raise an issue respecting the standard of review under the Act which should apply in appeals involving an institution's decision to deny a fee waiver. Hydro specifically states that: Section 57(3) [now 57(4)] of the Freedom of Information and Protection of Privacy Act states that all or part of a fee may be waived where "in the head's opinion, it is fair and equitable to do so" after considering certain circumstances. It is respectfully submitted that discretion with respect to the application of fee waivers is consigned to the head of an institution. It is further submitted that denial of an application for waiver should be reversed only on a finding of arbitrary or capricious abuse of discretion . In this instance, denial of the fee waiver is based upon information received from the Manager of the Bruce NGS A Rehabilitation Section, who has knowledge of both the records and the decision-making process. [Emphasis added]. Hydro submits that the scope of review for the Commissioner's Office in these matters is limited to ascertaining whether the head's discretion to not grant a fee waiver, is "arbitrary or capricious". In support of its position, Hydro cites two American cases decided under the provisions of the United States Freedom of Information and Protection of Privacy Act , 5 U.S.C. 552 (the U.S. FOI Act ). These are Burke v. Department of Justice , 432 F. Supp. 251 (1976) aff'd 559 F.2d 1182 (10th Circ 1977) and Ely v. United States Postal Service 753 F.2d 163 (1985). Having reviewed these cases, it appears that the nature of the test being advanced derived not from the court's reasoning that decisions of this nature should be accorded a high level of deference but simply because a broader standard of review was not available under the U.S. FOI Act . Under the U.S. FOI Act , where an individual disagrees with a fee waiver decision, that individual is entitled to file an appeal with the appropriate U.S. District Court. Prior to 1986, this court did not have the express statutory jurisdiction to review fee waiver decisions issued by government institutions. These rulings could only be overturned on the narrower grounds of judicial review at common law. One of these grounds was whether the agency which issued the decision had exercised its discretion in an arbitrary or capricious manner. Since the two cases cited by Hydro were decided prior to 1986 and were based on a standard of review which derived from a specific statutory context, I do not consider them to be applicable to the present appeal. In Ontario, an appellant, by virtue of section 57(5) of the Act , has the right to ask the Commissioner to review an institution's decision not to waive a fee. The Commissioner may then either confirm of overturn this decision based on a consideration of the criteria set out in section 57(4) of the Act . In my view, the standard of review which should apply to the review by the Commissioner or his delegate to decisions issued under section 57(4) of the Act is one of correctness. I have reached this conclusion based on a consideration of the scheme of the Act as a whole and, more particularly, on a review of the following provisions: 1. Section 1(a)(iii) of the Act which states that decisions on the disclosure of government information are to be made independently of government. 2. Section 50 (1) of the Act which provides the Commissioner with the authority to review any decision of the head of an institution. 3. Sections 51 and 52(1), (4) and (8) of the Act which provide the Commissioner with broad investigative powers and which contemplate the receipt and consideration of fresh evidence. 4. Section 54(1) of the Act which prescribes that, after all the evidence for an inquiry has been received, the Commissioner shall make an order disposing of the issues raised in the appeal. In addressing the appropriate standard of review, I have also considered the significance of the phrase "in the head's opinion" which is found in the introductory part of section 57(4) of the Act . The leading case on the meaning of this type of wording is the Supreme Court of Canada's decision of Gana v. The Minister of Manpower and Immigration (1971) 13 D.L.R. (3d) 699. There, the court considered an Immigration Appeal Board decision made under the Regulations of the Immigration Act . More particularly, the court was required to determine whether a conclusion reached "in the opinion of an immigration officer" was subject to review. In addressing this issue, Spence, J. offered the following analysis: It is said, on behalf of the Minister, that the review is prohibited by the opening words of the Regulation, s. 34(3)(f), "in the opinion of an immigration officer". I am not of the opinion that those words in the Regulation preclude a review of that opinion by virtue of a statutory


Legislation		FIPPA Section 51 1(a)(iii) 50(1) 52(4) 54(1) 57(4) 57(4)(c) 57(5)


Subject Index		Standard of Review fair and equitable fee less than $5.00 standard of review public health or safety


Signed by		Irwin Glasberg


Published		Jun 10, 1993


Type		Order


<< Back

Main Menu