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M-1164

Document		M-1164


Institution/HIC		Regional Municipality of Waterloo


Summary		BACKGROUND: The appellant was formerly a civilian employee with the Waterloo Regional Police Service (the Police). She was dismissed from employment in 1982. She subsequently lodged a complaint with the Ontario Human Rights Commission (the OHRC) and initiated a civil action for wrongful dismissal against the Police. The Regional Municipality of Waterloo (the Municipality), as the funding source for the Police, supplied legal counsel (the Regional Solicitor) to represent and advise the Police in all matters relating to these two actions. In 1984, following negotiations between the appellant (through her counsel) and the Regional Solicitor, the parties arrived at a settlement of all outstanding issues and claims by the appellant against the Police. NATURE OF THE APPEAL: The Municipality received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for all information relating to the appellant in its possession. The Municipality located responsive records and granted partial access to them. The Municipality denied access to the remainder on the basis that they fell outside the scope of the Act pursuant to section 52(3) of the Act . The Municipality also claimed the exemption found in section 14 (invasion of privacy) of the Act as well as section 52(3) to 13 pages. The appellant appealed the Municipality's decision. In addition, the appellant claims that there should exist an audio tape of a telephone conversation between herself and a named individual. The conversation was apparently taped by the other individual at her home. The parties are aware of the identity of the other individual. During the mediation stage of this appeal (and within 30 days from the Notice of Appeal), the Municipality issued a second decision letter in which it claimed the application of the exemption found in section 12 of the Act to a number of records. This claim was made "in the alternative", in the event that section 52(3) is found not to apply in the circumstances of this appeal. Also during mediation, the Municipality informed this office that the audio tape does not exist within its custody or control. Therefore, the reasonableness of the Municipality's search for this record is included within the scope of this appeal. This office provided a Notice of Inquiry to the appellant and the Municipality. Representations were received from both parties. After the Notice of Inquiry was issued, and while the issues in this appeal were being considered, this office released a number of orders dealing with the interpretation of section 52(3) and its provincial counterpart. Because these orders could have an impact on the present appeal, both parties were sent a Supplementary Notice of Inquiry and provided with an opportunity to make further representations. Additional representations were received from the Municipality. RECORDS: The records remaining at issue consist of occurrence reports, handwritten notes, memoranda, a transcript of a radio broadcast and correspondence, in draft and final form, primarily between the Regional Solicitor and other parties. PRELIMINARY MATTER: DELAY AND PREJUDICE TO THE INSTITUTION The Municipality objects to the delay in resolving this appeal as a result of recent developments in decisions being issued by this office. Although not expressly stated, the Municipality alludes to some prejudice to it as a result of these actions. In this regard, the Municipality states: In this appeal, the delay has had the effect of allowing the "case law" established by Commissioner's Orders to change and become a possible factor in the outcome of the appeal. At the time the decision on access and appeal of the request were made, directions set by Commissioner's Orders had allowed a broad, literal interpretation of the exclusion in subsection 52(3). Because of the Commission's delay in resolving the appeal, recent Orders have narrowed the interpretation of the exclusion and are now being raised in resolving this appeal. For institutions, this amounts to having to aim at a moving target in establishing positions in an appeal. I appreciate the concerns raised by the Municipality in this regard. Delay is something which the Commissioner's Office has made great efforts to avoid, and has, in fact, taken active steps to move appeals along in a timely fashion. However, the state of the law, especially in relatively new amendments to the legislation, tends to be very dynamic. As our experience and understanding of the issues and records to which they are applied develop, the need for flexibility in approaching new files must be recognized. The facts in this case, as well as in a number of other appeals, raised a number of interpretive questions stemming from a newly emerging direction which had been taken by this office. In order to fully and fairly adjudicate the issues in this appeal, it was necessary to allow the time to articulate the manner in which these types of appeals should be approached. In fairness to the parties, it was also necessary to go back to them to allow their input in the application of this new approach to their particular fact situations. As the Municipality indicates, this has resulted in an approximately four month delay. This delay is unfortunate, however, the determination in question is jurisdictional, thus critical to the matter, and the delay was necessary in the final determination. DISCUSSION: JURISDICTION: The first issue in this appeal is whether the records fall within the scope of sections 52(3) and (4) of the Act . These provisions read: (3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding o


Legislation		MFIPPA Section 12 14(1)(f) 14(2)(f) 14(2)(h) 22(1)(a) 52(3)1 52(3)3


Subject Index		time sensitive


Published		Dec 14, 1998


Type		Order


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