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Summary
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O R D E R BACKGROUND: In February, 1991, a request under the Municipal Freedom of Information and Protection of Privacy Act for access to personal information was received by The Regional Municipality of Ottawa-Carleton. The request was forwarded to the Ottawa-Carleton Regional Transit Commission ("OC Transpo"), which had the information. On March 20, 1991, OC Transpo wrote to the requester, advising him of its position that the Municipal Freedom of Information and Protection of Privacy Act (the Act ) did not apply to it, but that it had adopted a policy which "mirrored" the provisions of the Act . The letter stated that access was granted to some of the information requested, but denied to the balance of the information pursuant to section 4(1) of the policy. In February, 1991, OC Transpo adopted a Freedom of Information and Protection of Privacy Policy, and designated the Chairman of the Transit Commission as the "head" for the purposes of this policy. As part of the policy, OC Transpo offered an arbitration system for requesters who disagreed with decisions made under the policy. The requester appealed the decision of OC Transpo under section 39(1) of the Act , which gives a person who has made a request for access to a record under section 37(1) of the Act , a right to appeal any decision of a head of an institution to the Information and Privacy Commissioner. He also appealed the decision of OC Transpo that the Act did not apply to it. OC Transpo is the Regional Transit Authority for the Ottawa-Carleton Region. The Transit Commission provides passenger transport in the regional area as designated under section 1 of the Regional Municipality of Ottawa Carleton Act , R.S.O. 1990, c. R. 14. This regional area includes the Township of Cumberland, the City of Gloucester, the Township of Goulborn, the City of Kanata, the City of Nepean, the Township of Osgoode, the City of Ottawa, the Township of Rideau, the Village of Rockcliffe Park, the City of Vanier, and the Township of West Carleton. OC Transpo is an incorporated body consisting of nine members of Regional Council. Sections 11 and 12 of the Regional Municipality of Ottawa-Carleton Act give the Commission the right to maintain and operate passenger transport services in the regional area. In addition to service in the regional area, OC Transpo offers bus service into Hull, Quebec, as part of its regular service. It is the contention of OC Transpo that, because it offers passenger service into Quebec, it is an interprovincial undertaking, and therefore, the Municipal Freedom of Information and Protection of Privacy Act does not apply to it, and therefore it is not an institution under the Act . Six other appeals have been received by this office respecting decisions of OC Transpo to deny access to requested records. The appeals involve four other appellants. OC Transpo responded to the request giving rise to the first appeal under the Municipal Freedom of Information and Protection of Privacy Act . Upon receipt of notification by this office of the appeal, OC Transpo stated that the Municipal Freedom of Information and Protection of Privacy Act did not apply to it. It responded to the other requests, including the one giving rise to this appeal, by stating that the Act did not apply to it, and it applied its internal information and privacy policy to the requests. Notice that an inquiry was being conducted to review the head's decision respecting the constitutional issue of whether the Municipal Freedom of Information and Protection of Privacy Act applies to OC Transpo was sent to the appellant, the institution, and four affected parties. The affected parties are the other appellants who have appealed decisions of OC Transpo to deny them access to requested records. An Appeals Officer's Report, which is intended to assist the parties in making representations concerning the subject matter of the appeal, accompanied the Notice of Inquiry. In addition, a Notice of Constitutional Question was sent to the appellant, the institution, the affected parties, the Attorney General of Canada, and the Attorney General of Ontario. Written representations were received from the appellant, the institution, the Minister of Justice, the Attorney General of Ontario and the four affected parties. In the circumstances of this appeal, I decided to permit an exchange of representations among the parties. The sole question for me to decide in this Interim Order is whether the application of the Municipal Freedom of Information and Protection of Privacy Act to OC Transpo is constitutionally valid. ISSUE 1 : Whether OC Transpo is a federal or interprovincial undertaking. It is the position of OC Transpo, the appellant, the Attorney General of Ontario and the federal Department of Justice that OC Transpo is a federal undertaking. I agree. Under the Constitution Act, 1867 (formerly the British North America Act ), legislative power over transportation and communication is divided between the federal and provincial governments. Under section 92, the province is granted the power to regulate "Local Works and Undertakings." However, section 92.10(a) sets out the exceptions to the provincial power to legislate in relation to transportation: In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of subjects next hereinafter enumerated; that is to say, - .... 10. Local Works and Undertakings other than such as are of the following classes:- (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province ; [emphasis added] Section 91.29 grants authority to the federal Parliament for these enumerated entities which have been excepted from provincial jurisdiction: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to
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