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Document
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P-1295
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File #
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P-9600257 and P-9600272
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Institution/HIC
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Ontario Insurance Commission
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Summary
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NATURE OF THE APPEALS: The requester asked the Ontario Insurance Commission (the OIC) for a copy ofthe "current private passenger automobile rates and rating rules" offour named insurance companies. The requester, which is itself an insurancecompany, offers motor vehicle policies and operates an insurance quotationservice for consumers. Following the receipt of this request, the OIC notified the four insurancecompanies. It advised the companies that, while the information sought was verylikely accessible under the Freedom of Information and Protection of PrivacyAct (the Act ), components of the records might exist whosedisclosure could significantly prejudice the position of the companies. Two ofthe insurance companies consented to the disclosure of their rates and ratingschedules. The other two advised the OIC that they objected to the release ofthese records. The OIC subsequently advised the latter two companies that it considered theinformation in question to be publicly accessible and, therefore, that theexemptions in the Act did not apply to the records in question. It theninformed the companies that it had disclosed these records to the requester. The two insurance companies appealed the OIC's decision to theCommissioner's office. They took the position that the rates and ratingschedules had been disclosed contrary to the mandatory exemptions found insections 17(1)(a), (b) and (c) of the Act (third party information). The companies also contended that the OIC had failed to meet its obligationsunder section 28 of the Act (notification of third parties). On appeal, the two insurance companies now ask that the Commissioner'soffice overturn the OIC's decision and direct the OIC to (1) comply with theprovisions found in section 28 in the future and (2) obtain the immediate returnof the records which have been disclosed to the requester. The issues arising in these appeals could not be mediated. As a result, theCommissioner's office sent a Notice of Inquiry to the requester, the OIC and thetwo insurance companies. All parties provided representations. The records at issue in these appeals consist of the private passengerautomobile rates and rating rules provided to the OIC by the two insurancecompanies. Given that these two appeals raise similar issues, I have decided to dealwith them both in a single order. In the course of this decision, I will referto the insurance company which objects to the disclosure of its records inAppeal Number P-9600257 as Company (X) and to the company opposing disclosure in Appeal P-9600272 as Company (Y). DISCUSSION: JURISDICTION OF THE COMMISSIONER'S OFFICE TO PROCEED WITH THESEAPPEALS Was the Request Made Under the Act? In its submissions, the OIC takes the position that the Commissioner'soffice lacks the jurisdiction to proceed with these appeals since the requesternever made a formal request under the Act . In the OIC's view, for arequest to be properly constituted under the Act , a party mustspecifically state that it is made "under the Freedom of Informationand Protection of Privacy Act ". The OIC further contends that thisproposition is valid despite the fact that it may have processed requests forsimilar information under the Act in the past. The OIC then argues that since a request under the Act was neverfiled, it follows that the OIC did not have an obligation to issue third partynotices to the insurance companies under section 28 of the Act . Furthermore, since the companies were never sent notices under this provision,they lack the right to appeal the OIC's disclosure "decision" undersection 50(1) of the Act . To state the OIC's position somewhat differently, since its decision todisclose the rates and rating rules was made outside the scope of the Act ,no appeal rights exist and the Commissioner's office lacks the jurisdiction tobecome involved in these files. The requester approaches this issue somewhat differently. It notes that ithas already obtained access to the records at issue. This means that there isno longer a decision to appeal. The requester also submits that the OIC'sfailure to advise Companies (X) and (Y) of their appeal rights under the section28 does not constitute a reviewable decision. In the alternative, the requester argues that, even if there is a decisionwhich can be appealed, it has already obtained access to the responsive records. On this basis, the requester submits that no practical purpose would be servedby proceeding with these appeals. It then contends, based on the principles setout in the Supreme Court of Canada decision in Borowski v. The AttorneyGeneral of Canada (1989), 57 D.L.R. (4th) 231, which I will discuss shortly,that the present appeals are moot and should be dismissed. Companies (X) and (Y), on the other hand, submit that both the originalaccess request and the OIC's subsequent letter to the companies dated November27,1995 make reference to the provisions of the Act . On this basis,they submit that both the conduct and intent of the parties illustrate that theywished the request to be treated under the Act . The companies contend,therefore, that the Commissioner's office holds the requisite jurisdiction todecide these appeals. The two companies then argue that their appeals are not, in fact, moot. Inthis regard, Company (X) points out that, on two separate occasions since itsappeal was filed, the OIC has disclosed its rates and rating rules to otherthird parties. In these instances, it states that there was no advance noticeto the company nor any opportunity to make submissions to the OIC. Both companies emphasize that, in order to deal with similar requests in thefuture, it is imperative for the Commissioner's office to decide whether suchinformation should be disclosed. They also ask that this office dispose of thetwo appeals on their merits. I will first consider whether I have the jurisdiction to proceed with theseappeals. In making this determination, I will review the wording of sections50(3), 54(1) and 54(3) of the Act , as well as the court decisions whichhave discussed the scope of the Commissioner's jurisdiction to decide appeals. Section 50(1) provides, in part, that a person who is given notice of arequest under section 28(1) may appeal any decision of a head under the Act to the Commissioner's office. Sections 54(1) and (3) set out the scope of theCommissioner's order making powers. Section 54(1) specifies that: After all of the evidence for an inquiry has been received, theCommissioner shall make an order disposing of the issues raised by the appeal. Section 54(3) goes on to provide that, subject to the Act , theCommissioner's
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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24(1)(a)
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28(1)(a)
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28(2)
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28(5)
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28(8)
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28(9)
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Nov 19, 1996
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Type
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Order
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