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Document
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PO-2381
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File #
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PA-040221-1
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Institution/HIC
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Ontario Realty Corporation
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Summary
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NATURE OF THE APPEAL: The Ontario Realty Corporation (ORC) is designated by Ontario Regulation 460 as an institution subject to the Freedom of Information and Protection of Privacy Act (the Act ). The ORC received a request under the Act for the following information: A copy of the Planning Study referred to in the attached letter from [a named lawyer at a named law firm] for the ORC. This Planning Study was to be commissioned by the ORC in 2003, for the purpose of identifying all of the alternatives available to the ORC in respect to these lands [referring to an attached legal description of a property]. [Emphasis in original]. The ORC identified as responsive to the request a seven-page planning study prepared by a planning consultant for the ORC, including four attachments. It issued a decision denying access to the entire planning study (the study) pursuant to the exemptions from the duty of disclosure found in sections 13 (1) (advice and recommendations), 18(1)(a), (c), (d), and (e) (economic and other interests of government), and 19 (solicitor-client privilege) of the Act. The requester (now the appellant) appealed the ORC’s decision to deny access to the requested record. Also, the appellant stated his concern that the decision-maker was the President and Chief Executive Officer of the ORC, as he believes that this individual has a conflict of interest which renders him unable to make an impartial decision. During the mediation stage of this appeal, the mediator had conversations with the appellant and the ORC. The appellant narrowed his request “to include only that part of the planning study which addressed the study’s finding as to whether the described property is, or is not, landlocked”. The mediator reviewed the record with the ORC, which confirmed that in its opinion the entire study including the attachments relates to the study’s findings as to whether the property is landlocked. The appellant advised that in addition to the contents of the study he is seeking the name of its author. The mediator advised the ORC of this request. The ORC did not offer to disclose the name of the study’s author. The appellant confirmed during mediation that he is still concerned that the decision- maker had a conflict of interest when making this decision. The ORC advised the mediator that it was no longer relying on the exemption in section 13(1) of the Act as a basis for refusing access to the record. Therefore, the remaining issues are whether the exemptions in section 18 (economic and other interests) and 19 (solicitor-client privilege) apply to the record at issue, and whether the decision-maker who refused access was biased, or, alternatively, whether there is a reasonable apprehension of bias. As no further mediation was possible, the appeal entered the adjudication stage. I issued a Notice of Inquiry setting out the facts and issues in this appeal, which was sent to the ORC with an invitation to provide representations. The representations of the ORC were provided to the appellant with a Notice of Inquiry, and the appellant was invited to provide representations. The appellant provided representations on January 4 and January 6, 2005. On January 11, 2005, the appellant asked that his appeal be put on hold to permit him to obtain and submit some additional evidence. On February 28, March 8, and March 21, 2005, the appellant provided additional representations. I did not consider it necessary to invite the ORC to reply to any of these representations. DISCUSSION: CONFLICT OF INTEREST/BIAS Would an informed person, viewing the matter realistically and practically, think that it is more likely than not that the decision-maker who made the access decision in this case would not decide the matter fairly? The person who made the decision to deny access to the study is the President and Chief Executive Officer (the CEO) of the ORC. The appellant alleges that that there is an issue of bias and/or conflict of interest in relation to the decision-making process that took place within the institution in relation to the decision made in this case. In his letter appealing the decision, the appellant states: Request has been denied by [the CEO] who has a conflict with this application. Should have stepped aside. Analysis and findings A decision-maker must not be biased as “no one shall be a judge in his own cause”. In other words, an individual with a personal interest in the disclosure or non-disclosure of a record must not be the decision-maker who makes the determination with respect to disclosure. A breach of this fundamental rule of fairness will cause a statutory delegate, such as a delegated head under the Act , to lose jurisdiction. [Order M-1091]. There is a right to an unbiased adjudication in administrative decision-making. It is not necessary to prove an “actual bias”. The test most commonly applied by the courts is whether there exists a “reasonable apprehension of bias”. The test for reasonable bias enunciated by the Supreme Court of Canada is “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?” [Order MO-1519] However, the requirement for impartiality in the actions of an administrator is not the same as for an adjudicator. To treat an administrator the same as an adjudicator “overlooks the contextual nature of the content of the duty of impartiality which, like that of all of the rules of procedural fairness, may vary in order to reflect the context of a decision-maker’s activities and the nature of its functions”. The obligations of such a decision-maker “are not equivalent to the impartiality that is required of a judge or an administrative decision-maker whose primary function is adjudication.” Imperial Oil Ltd. v. Quebec (Minister of the Environment) (2003), 231 DLR (4 th ) 577 at paragraphs 31 and 34 (SCC). The context in which the CEO made his decision on the appellant’s request is can be described as follows. At the time the access decision was made, the ORC (which the CEO represents not only as the decision-maker under the Act , but also as its President and Chief Executive Officer) was engaged in a dispute with the appellant over whether it was legal for the ORC to refuse the appellant’s offer to purchase the land to which the study relates. Before making his decision to deny access, the CEO had himself taken certain actions designed to further the disposition of the land in question on favourable terms to the ORC. These actions are set out on pages 3 and 4 of the appellant’s January 4, 2005 representations as evidence of the CEO’s alleged conflict of interest. On page 1 of his representations dated January 6, 2005, the appellant cites certain other actions taken by the CEO in the context of determining the disposition of the land in question as additional evidence of conflict of interest. He states: Surely [the CEO’s] unprecedented personal involvement clearly indicates that a conflict of interest exists. [The CEO] has gone well beyond the norm... . The ?Guidelines and Procedures For Real Estate and Sales’ rules were put in place to protect the people of Ontario provide an accountability framework for the disposition of real estate assets on behalf of the Province of O
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Legislation
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FIPPA
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18(1)(a)
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18(1)(c)
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18(1)(d)
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18(1)(e)
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Section 19
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Subject Index
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Signed by
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John Swaigen
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Published
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Apr 13, 2005
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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