The Information and Privacy Commission (IPC), as the independent oversight agency responsible for resolving access appeals under Ontario's Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, has jurisdiction to hear an appeal if the record or records involved are covered by the Acts, and to issue an order resolving the appeal.

In the vast majority of cases, an appeal ends when the IPC had successfully mediated a resolution or has issued an order. IPC decisions are not subject to appeal on the basis that a party disagrees with the outcome. IPC decisions in access appeals can only be challenged on limited grounds using a special type of court proceeding called "judicial review." There are three basic grounds for judicial review: (1) the IPC has no "jurisdiction" to decide the matter; (2) the IPC's process is not "fair;" and (3) the IPC's decision is "unreasonable" or "irrational."

Jurisdiction

The IPC's jurisdiction is established by the Acts. The Acts apply to all records in the custody or under the control of provincial and municipal institutions, except for certain records that are expressly excluded. If a record is covered by the Acts, the IPC has jurisdiction to hear an appeal and make an order. (The IPC has no jurisdiction to order disclosure of a record that is not in the custody or control of an institution.)

Fairness

The IPC's appeal process must be fair. This means that the IPC must notify the requester, the institution, and any other party directly affected by the appeal and give them an opportunity to make representations on the issues raised. Provided the appeal process meets these basic standards, the court allows the IPC to choose its own procedures to ensure an efficient and effective determination of the issues. (The IPC would be unfair if it ordered disclosure of an individual's sensitive personal information without first hearing from the individual.)

Reasonableness

The IPC must interpret the Acts reasonably in light of the wording used by the Legislature. The IPC's decisions must also be supported by the material presented by the parties and the information contained in the records. The court will not overturn an IPC decision just because it disagrees with the result, but only if the decision is unreasonable. (For example, the IPC would be unreasonable if it found that an individual's identifiable medical records are not personal information.)

The Process

Judicial review of an IPC decision is commenced by a notice of application issued out of Ontario's Divisional Court which must be served on all the parties and the Attorney General. If the application relates to an IPC order for the disclosure of records, the IPC may "stay" its decision in an appropriate case until the Court decides the matter. Alternatively, a party resisting disclosure can ask the court for a stay.

The IPC then files its record of proceedings in court, which consists of all of the material the IPC considered in reaching its decision. Since this frequently includes confidential material (like the records at issue), the IPC asks the court to "seal" the IPC's private record of proceedings so that it does not become part of the public court file. The applicant seeking judicial review then delivers its written argument (called a factum), followed by the other parties' written arguments. The court schedules a date for hearing the application after it receives the applicant's factum.

Judicial review applications are usually heard by three judges of the Divisional Court, although one judge may deal with the matter in cases of urgency. After hearing from the parties, who are usually but not always represented by legal counsel, the court may issue a decision the same day or may reserve its decision in more complicated cases to give the matter further thought.

If the court finds that the IPC's decision was made within jurisdiction, resulted from a fair process, and was not unreasonable, the application will be dismissed. If the IPC made one or more errors, the court will usually grant the application and set aside the entire IPC order, or the part that contains an error. In some cases, that will be the end of the matter. In other cases, the court may direct an issue back to the IPC to be decided according to the principles or processes laid down in the court's ruling.

A party who is dissatisfied with the Divisional Court's decision may apply for leave to appeal to Ontario's Court of Appeal. Leave to appeal is usually granted only if the case raises issues of public importance. A ruling of the Court of Appeal may be further appealed to the Supreme Court of Canada with the leave of the high court. In the first 15 years after the Freedom of Information and Protection of Privacy Act was passed, leave to appeal to the Supreme Court of Canada was only sought three times. In each case, the high court denied leave to appeal.

In the overwhelming majority of cases over the last several years, the IPC's orders have been upheld on judicial review or on further appeal from the Divisional Court. Where an IPC decision requiring the disclosure of records is upheld, the institution must comply with the IPC order forthwith. Wilful failure to comply with the IPC's order is an offence under the Acts.