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Document
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M-919
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Institution/HIC
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Metropolitan Toronto Police Services Board
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Summary
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BACKGROUND: An individual was questioned by his employer with respect to a transfer ofcorporate funds. The individual then disappeared and the employer contacted theMetropolitan Toronto Police Services Board (the Police) to report an allegedfraud. A missing persons report was also filed with the Police. It wassubsequently discovered that the individual had apparently committed suicide. In this order, I will refer to this individual as the "deceased". The employer subsequently commenced an action against the estate of thedeceased. The deceased's wife (hereafter referred to as the "appellant")was also named as a defendant. Later, by consent order of the court, theappellant was appointed litigation administrator and was added in this capacityas a party defendant in the action. The court also ordered that the appellantbe added as a party defendant in the action in her personal capacity. NATURE OF THE APPEAL: Counsel acting for the appellant personally, and in her capacity aslitigation administrator, submitted a request to the Police under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ). Therequest was for access to copies of a Missing Persons Report, a Sudden DeathReport and a Fraud Report prepared by the Police in connection with thedeceased. At the request of the Police, counsel provided them with a copy of acourt order naming his client as litigation administrator. The Police issued a decision in which they denied access to the records onthe basis that disclosure would constitute an unjustified invasion of thepersonal privacy of the deceased pursuant to section 14(1) of the Act . In their decision, the Police also explained why, in their opinion, section54(a) of the Act (right of access of a personal representative) did notapply in the circumstances of this case. Counsel filed an appeal of this decision. A Notice of Inquiry was sent to the Police, the employer and counsel for theappellant in her capacity as litigation administrator. In addition, a copy ofthe Notice was sent to the appellant in her personal capacity. This office wassubsequently advised that the appellant had retained new counsel and,accordingly, a copy of the Notice of Inquiry was sent to this individual. Representations were received from the Police and counsel for the appellant. The records at issue are: (1)A Sudden Death Report dated March 19, 1996 (two pages). (2)A Supplementary Report to Record 1 dated March 20, 1996 (one page). (3)A Fraudulent Document Report dated March 20, 1996 (one page). (4)A Supplementary Report to Record 3 dated March 20, 1996 (one page). (5)A Homicide and Sudden Death Report dated March 18, 1996 (one page). (6)A Supplementary Report to Record 5 dated March 18, 1996 (five pages). (7)A General Property Report and Receipts dated March 18, 1996 (fivepages). (8)A Missing Persons Occurrence Report dated March 18, 1996 (three pages). (9)A Fraudulent Document Occurrence Report dated March 20, 1996 (one page). DISCUSSION: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE Section 2(1) of the Act defines "personal information", inpart, to include recorded information about an identifiable individual. Section2(2) provides that personal information does not include information about anindividual who has been dead for more than 30 years. Since the deceased diedlast year, section 2(2) does not apply in the circumstances of this case. I have reviewed the information contained in the records and find that itsatisfies the definition of personal information. I further find that theinformation contained in Records 1 and 8 contain the personal information ofboth the deceased and the appellant, while the balance of the records containthe personal information solely of the deceased. Based on the facts of this case, I will consider whether, under section54(a) of the Act , the appellant is entitled, as the litigationadministrator of the estate of the deceased, to exercise the same right ofaccess to the personal information contained in the records as the deceased. Under section 54(a), the appellant would be able to exercise the deceased'sright to request and be granted access to the deceased's personal information ifshe is able to: 1.demonstrate that she is the "personal representative" of thedeceased; and 2.demonstrate that her request for access "relates to theadministration of the deceased's estate". Personal Representative The meaning of the term "personal representative" as it appears insection 66(a) of the Freedom of Information and Protection of Privacy Act , the equivalent ofsection 54(a) of the Act , was considered by the Divisional Court in ajudicial review of Order P-1027 of this office. In Adams v. Ontario(Information and Privacy Commissioner) (1996), 136 D.L.R. (4th) 12 at 17-19,the court stated: Although there is no definition of "personal representative" inthe Act, when that phrase is used in connection with a deceased and theadministration of a deceased's estate, it can have only one meaning, which isthe meaning set out in the definition contained in the EstatesAdministration Act , R.S.O. 1990, c. E.22, s.1, the Trustee Act ,R.S.O. 1990, c. T.23, s.1; and in the Succession Law Reform Act ,R.S.O. 1990, c. S.26, s.1: 1(1) "personal representative" means an executor, anadministrator, or an administrator with the will annexed. ... The question to be decided is whether the person seeking theinformation is the personal representative of the deceased individual with thepower and authority to administer the deceased's estate. ... ... The executor may require certain financial information for theadministration of the estate, or even certain personal information in order topursue a lawsuit on behalf of the estate ... [emphasis added] Based on the court's analysis set out above, I am of the view that a person,in this case the appellant, would qualify as a "personal representative"under section 54(a) of the Act if he or she is "an executor, anadministrator, or an administrator with the will annexed with the power andauthority to administer the deceased's estate". I will first determine whether the appellant qualifies as "anadministrator with the power and authority to administer the deceased's estate". Black's Law Dictionary , 6th ed. (St. Paul: West Publishing Co.,1990), p.44 defines the term "administration of estates" as follows: Administration of estates. The management and settlementof the estate of an intestate decedent, or of a testator who has no executor,performed under the supervision of the court, by a person duly qualified andlegally appointed,
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Legislation
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Subject Index
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Published
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Apr 03, 1997
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Type
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Order
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