Divisional Court brings greater certainty and predictability to IPC decisions

Jul 27 2020

Last week, the Divisional Court rendered a decision in Brockville (City) v. IPC that will likely have far-reaching impact for all stakeholders seeking to challenge my office’s access to information orders before the courts.

This is Ontario’s first FOI judicial review decision post-Vavilov. While the expression “post-Vavilov” has become a term of art for administrative law experts, it bears some explaining for the vast majority of others.  Let me start with some context…

Last December, the Supreme Court of Canada rendered a very significant decision in Canada v. Vavilov,  Vavilov set out a revised, more simplified framework for judges to use when reviewing decisions of administrative decision-makers — including tribunals like the IPC. Basically, the courts must adopt one of two standards when reviewing such decisions:

  1.  the “reasonableness” standard, which means that the judge must focus on the analysis adopted by the decision-maker and decide if it was a reasonable approach regardless of whether the judge would have come to a different answer
  2. the “correctness” standard, meaning that the judge has to put him or herself in the shoes of the decision-maker, re-do the analysis and essentially consider whether the tribunal’s decision was right or wrong at law

Of these two standards, the reasonableness standard is known as the more deferential standard. It is the presumptive standard by which courts ought to show more respect for the tribunal’s decisions and restrain from intervening or reversing them.

In Brockville, the Divisional Court considered the statutory regimes set out in FIPPA/MFIPPA, as well as the general nature of FOI requests. Using the Vavilov framework, it confirmed that judges should adopt the more respectful reasonableness standard when reviewing IPC’s decisions. In so doing, the court recognized the IPC’s significant experience and expertise in interpreting and applying Ontario’s access to information laws.

The significance of this decision is not who wins or loses in the end. Rather, what makes it blogworthy is the greater predictability it affords to IPC decisions in the future and the greater certainty it provides to all concerned knowing there is less chance of courts setting them aside.


Patricia