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Document
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PO-1663
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File #
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PA-980204-1
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Institution/HIC
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Pension Commission of Ontario
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Summary
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BACKGROUND: The Pension Benefits Act (the PBA ) regulates pension plans provided for employees in Ontario. Regulation 909 contains various requirements for the funding of pension plans registered under the PBA . Regulation 909 originally specified that where a plan contained a solvency deficiency, the employer was required to make special payments to achieve an appropriate level of funding. On November 26, 1992, Ontario Regulation 712/92 (the Regulation) amended Regulation 909. The effect of the amendment was to exempt employers with pension plans valued at more than $500 million from the special payment obligations. In the period leading up to the amendment, the (then) Ministry of Financial Institutions (the Ministry) (now the Ministry of Finance) and the Pension Commission of Ontario (the Commission) (now part of the Financial Services Commission of Ontario) assembled a team of individuals to draft the amending Regulation. This drafting team included the Ministry's Actuarial Consultant and the Commission's Actuary and Senior Legal Counsel. This group prepared drafts of the Regulation and related technical documents, and received and analysed input from selected organizations within the pension industry who were consulted on the Regulation. The drafting team took direction from senior officials within the Ministry, including its Senior Policy Advisor. Once the drafting team completed its draft of the Regulation, it was taken to Legislative Counsel, which provided advice and finalized the document. Finally, the draft Regulation was recommended by the Minister, approved by Executive Council (Cabinet) and ordered into force by the Lieutenant Governor in Council. NATURE OF THE APPEAL: The Commission received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to (i) submissions from "unions and other labour organizations", and notes and responses relating to those submissions, up to the date the Regulation came into effect; and (ii) records identifying individuals or organizations who had access to "the Stelco bargaining unit pension plan for members of the United Steelworkers of America Registration No. 0354878 between June 14, 1996 and July 27, 1997", and the dates and times of such access. Within 30 days of receiving the request, the Commission advised the requester that it estimated the fees for access to be $1515. The Commission also advised the requester of its preliminary view that the exemptions in sections 12 (cabinet records), 13 (advice or recommendations), 17 (third party information) and 19 (solicitor-client privilege) applied to the records. The Commission stated that a final decision would be rendered upon receipt of a deposit of 50% of the fee estimate. Approximately three weeks after receiving the interim decision, the requester paid the deposit amount, but the Commission neither provided the records nor provided a final decision on access. The requester appealed the Commission's deemed refusal to this office pursuant to sections 29(4) and 50(1) of the Act , and Appeal Number PA-980159-1 was opened. Approximately five months after the fee was received, the Commission issued its decision letter. It advised that the Commission had located 19 responsive records, and that it had agreed to grant access in whole to Record 11, and in part to Records 1, 10 and 12. The Commission stated that it was denying access to the balance of the records under sections 12, 13, 17, 19 and 21 (personal information) of the Act , except for the withheld portion of Record 1 which it said was not responsive to the request. The Commission further indicated that the final fee was $1,686.80, and that upon receipt of the balance of $929.30, the non-exempt information would be sent to the requester. The Commission included a detailed index of records with its second decision, setting out the nature of each record and, where relevant, the basis on which it was claimed to be exempt. On the basis of the Commission's final decision, this office closed Appeal Number PA-980159-1. The requester (now the appellant) appealed the Commission's decision to this office and Appeal Number PA-980204-1 was opened. During the mediation stage of the appeal, the Commission specified on which particular subsections under section 12 it was relying for each relevant record. The 17 records at issue responsive to the first part of the request consist of letters, draft letters, memoranda and notes, mainly concerning submissions made by members of the consultation group. Record 10, the only record responsive to the second part of the request, is entitled "Plan Viewing Appointment" form. The Commission withheld from this record the name of the individual on the form, and the name, address and telephone number of the individual's organization. A Notice of Inquiry setting out the issues in the appeal was sent to the appellant, the Commission and 14 affected persons. Representations were received from the appellant, the Commission and three affected persons. The Commission's representations relied extensively on a previous decision (Order P-771) involving the Ministry and a request for the same or similar records, as well as a decision of the Ontario Court (General Division) Divisional Court on judicial review quashing that order [ Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1997), 102 O.A.C. 71]. Since this case is highly relevant to the issues in this appeal, but was not referred to in the Notice of Inquiry, I contacted the appellant's counsel to notify her of the fact that the Commission was relying on these two decisions. I further indicated to her which records were common to both cases (Records 2, 6, 7, 15, 17 and 19 in the current appeal, referred to as Records 38, 38, 39, 50, 22, 24 in the earlier case). Finally, since the Commission submitted for the first time in its representations that the consultation submissions from non-labour organizations attached to Record 19 were not responsive, I advised the appellant's counsel of this fact. The appellant's counsel made supplementary representations on these matters. DISCUSSION: FEES Under section 57(1) of the Act an institution is required to charge a requester fees for (among other things) time spent locating responsive records and preparing rec
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Legislation
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FIPPA
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12(1)
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29(4)
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57(1)
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Section 19
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Section 26
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17(1)
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27(1)
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Subject Index
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Signed by
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David Goodis
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Published
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Mar 30, 1999
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Type
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Order
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