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Document
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M-415
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Institution/HIC
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Township of Temagami
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Township of Temagami (the Township) received a request for access to: - copies of the minutes of meetings of the Temagami Non-Profit Housing Corporation (the Housing Corporation) for a specified period of time; - the by-law incorporating the Housing Corporation; and - a letter sent from a solicitor to the Housing Corporation. Pursuant to section 18 of the Act , the Township transferred the request to the Housing Corporation. The Housing Corporation responded to the request by stating that it was not an institution as defined in the Act and was, therefore, not subject to any of the provisions of the legislation. The requester appealed this decision. During mediation, the appellant withdrew his request for access to the solicitor's letter. He is continuing to seek access to the other two categories of information on the basis that the Housing Corporation is subject to the Act . Notice that an inquiry was being conducted to review the decision of the Housing Corporation was sent to the Housing Corporation, the Township and the appellant. Representations were received from all three parties. DISCUSSION: APPLICATION OF THE ACT The access provisions of the Act apply to all municipal "institutions". That term is defined in section 2(1) of the Act as follows: "institution" means, (a) a municipal corporation, including a metropolitan, district or regional municipality of the County of Oxford, (b) a school board, public utilities commission, hydro electric commission, transit commission, suburban roads commission, public library board, board of health, police commission, conservation authority, district welfare administration board, local services board, planning board, local roads board, police village or joint committee of management or joint board of management established under the Municipal Act , (c) any agency, board, commission, corporation or other body designated as an institution in the regulations; ("institution") The Housing Corporation does not qualify as an "institution" under clause (c) of the definition. However, the appellant maintains that the Housing Corporation is subject to the Act on two grounds. The appellant's first contention is that the Housing Corporation is a local services board and thus falls under clause (b) of the above definition. In the alternative, he maintains that the Housing Corporation could be deemed to be a part of the Township (which is an institution under clause (a) of the definition) by virtue of section 2(3) of the Act . This provision states: Every agency, board, commission, corporation or other body not mentioned in clause (b) of the definition of "institution" in subsection (1) or designated under clause (c) of the definition of "institution" in subsection (1) is deemed to be a part of the municipal corporation for the purposes of this Act if all of its members or officers are appointed or chosen by or under the authority of the council of the municipal corporation . [my emphasis] I will first consider the application of section 2(3) of the Act . In this case, there is no doubt that the Housing Corporation qualifies as a "corporation" under section 2(3). However, the issue which I must now determine is whether all of the members or officers of the Housing Corporation were "appointed or chosen by or under the authority of the council of the municipal corporation ", i.e. Township Council. If I find that this is the case, section 2(3) of the Act will apply and the Housing Corporation will be deemed to be part of the Township (and thus an institution) for the purposes of the Act . In order to address this issue, I will consider the following matters: (1) a review of the general background of the Housing Corporation in the context of section 2(3) and the relevant provisions of the Corporations Act ; (2) the definition of the term "officers" as found in section 2(3) of the Act ; (3) the meaning of the phrase "under the authority of ..." as found in section 2(3) of the Act ; and (4) the meaning of the phrase "municipality itself" as found in section 9 of By-Law No. 1 of the Housing Corporation. (1) General Background The Housing Corporation is a corporation without share capital which was created by Letters Patent issued by the Lieutenant-Governor on October 2, 1987. This type of corporation is governed by Part III of the Corporations Act . Corporations without share capital are generally set up to pursue objects other than those of a strictly "business" or "for profit" nature; the Corporations Act says that such a corporation is to be run "without the purpose of gain for its members" (sections 118 and 126 of the Corporations Act ). In this case, the original objects of the Housing Corporation included providing and operating housing accommodation for persons of low or moderate income at rentals below the "median current rental market". (2) The Definition of the Term "Officers" as Found in Section 2(3) of the Act Section 2(3) of the Act does not refer to directors; as I have noted above, it speaks of "members" and "officers". For the purposes of this order, I will first consider whether the directors of the Housing Corporation can be considered to be "officers" within the meaning of section 2(3). The terms "members" and "officers" are nowhere defined in the Act . However, the term "officer" has been very broadly defined in law, particularly in the public law context. For example, the Dictionary of Canadian Law defines "officer" as including the position of a corporation director. In my view, the use of the term "officers" along with "members" in section 2(3) is intended to identify the principal directing or controlling minds of a wide variety of entities, including "every agency, board, commission, corporation or other body not mentioned in sub
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Legislation
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Subject Index
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Published
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Nov 02, 1994
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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