Topic: Legislation
Type: Submissions

TECHNICAL

SUMMARY: TECHNICAL

A “technical change” is a change which is required because of poor legislative drafting; an error, such as inconsistent wording, which has slipped into the Act during the process of drafting or publication. The result of the poor drafting may create difficulties either in itself, in relation to other sections of the Act, or with regard to the purposes of the Act. A technical change is not intended to affect substantive rights.

I. 1. The purposes of this Act are,

(a) to provide a right to access to information in the custody of under the control of institutions in accordance with the principles that,

II. 1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(iii) decisions on the disclosure of information should be reviewed independently of the institutions who have custody or control of the information;

III. 1. The purposes of this Act are,

(b) to protect the privacy of individuals with respect to personal information about themselves in the custody or under the control of institutions and provide individuals with a right of access to that information.

IV. 13.(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains,

(g) a feasibility study or other technical study, including a cost estimate, relating to a policy or project of an institution;

V. 24.-(2) If the request does not sufficiently describe the record sought, the institution shall inform the person seeking access of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

(3) The person seeking access may indicate in the request that it shall, if granted, continue to have effect for a specified period of up to two years.

(4) When a request that is to continue to have effect is granted, the institution shall provide the person seeking access with,

(b) a statement that the person seeking access may ask the Commissioner to review the schedule.

VI. 24.-(4) When a request that is to continue to have effect is granted, the institution shall provide the applicant with,

(b) a statement that the applicant may appeal to the Commissioner for a review of the schedule.

27.-(2) Where a head extends the time limit under subsection (1), the head shall give the person who made the request written notice of the extension setting out,

(c) that the person who made the request may appeal to the Commissioner for a review of the extension.

28.-(9) Where, under subsection (7), the head decides to disclose the record or a part thereof, the head shall give the person who made the request access to the record or part thereof within thirty days after notice is given under subsection (7), unless the person to whom the information relates appeals the decision to the Commissioner.

VII. 28.-(4) Where a head gives notice to a person under subsection (1), the head shall also give the person who made the request written notice of delay setting out,

(a) that the disclosure of the record or part may affect the interests of another party;

VIII. 41. An institution shall not use personal information in its custody or under its control except,

(a) where the individual to whom the information relates has identified that information in particular and consented to its use;

42. An institution shall not disclose personal information in its custody or under its control except,

(b) where the individual to whom the information relates has identified that information in particular and consented to its use.

IX. 40.-(4) A head shall dispose of personal information in the custody or under the control of the institution in accordance with the regulations.

44. A head shall cause to be included in a personal information bank all personal information in the custody or under the control of an institution that is organized or intended to be retrieved by the individual’s name or by an identifying number, symbol or other particular assigned to the individual.

46.-(3) Where the personal information in a personal information bank in the custody or under the control of an institution is used or disclosed for a use consistent with the purpose for which the information was obtained or compiled by the institution but the use is not one of the uses included under clauses 45(d) and (e), the head shall,

(a) …

(b) …

X. 49. A head may refuse to disclose to the individual to whom the information relates personal information,

(c) that is evaluative or opinion material compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of contracts and other benefits by an institution where the disclosure would reveal the identity of a source who furnished information to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence;

XI. 57.-(4) A person who is required to pay a fee under subsection (1) may appeal to the Commissioner for a review of the amount of the fee or the head’s decision not to waive the fee.

Detailed Discussion: Technical

A “technical change” is a change which is required because of poor legislative drafting; an error, such as inconsistent wording, which has slipped into the Act during the process of drafting or publication. The result of the poor drafting may create difficulties either in itself, in relation to other sections of the Act, or with regard to the purposes of the Act. A technical change is not intended to affect substantive rights.

TECHNICAL ISSUE I

Present section:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

Proposed amendment:

1. The purposes of this Act are,

(a) to provide a right of access to information in the custody or under the control of institutions in accordance with the principles that,

Reason for the proposed amendment:

(a) Nature of the problem to be addressed by the proposed amendment:

Under subsection 10(1), every person is given the right of access to a record or part of a record in the custody or under the control of an institution. Subsections 24(1), 25(1) and 52(4) and section 70 of the Act also refer to records in the custody and under the control of an institution. There does not appear to be any substantive reason why subsection 1(a) of the Act – the purposes provision – refers only to the right of access to records under the control of institutions.

(b) How the proposed amendment resolves the problem:

By providing that one of the purposes of the Act is to provide a right of access to information in the custody or under the control of institutions, the proposed amendment more accurately reflects the intention of the legislature which is evident from reviewing other provisions of the Act. It eliminates any confusion caused by inconsistent terminology and speeds the understanding of the Act.

TECHNICAL ISSUE II

Present section:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(iii) decisions on the disclosure of government information should be reviewed independently of government;

Proposed amendment:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(iii) decisions on the disclosure of information should be reviewed independently of the institutions who have custody or control of the information;

Reason for proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

It is clearly the intent of the Act, as is evident from a review of Parts II and IV of the Act in particular, that decisions not only of the government but also of any agency, board, commission, corporation or other body designated as an institution in the regulations should be reviewed independently of that institution. The purpose clause in subsection l(a)(iii) is therefore not technically accurate.

b) How the proposed amendment resolves the problem:

By providing that one of the purposes of the Act is to provide a right of access to information under the control of institutions in accordance with the principles that decisions on the disclosure of information should be reviewed independently of institutionswho have custody or control of the information, the proposed amendment is consistent with the intent that is evident from a review of Part II and IV of the Act in particular. The proposed amendment underscores the fact that the ambit of the Actextends beyond “government” in the strict sense.

TECHNICAL ISSUE III

Present section:

1. The purposes of this Act are,

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

Proposed amendment:

1. The purposes of this Act are,

(b) to protect the privacy of individuals with respect to personal information about themselves in the custody or under the control of institutions and provide individuals with a right of access to that information.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

The word “held” is a multiple meaning word. In itself it fails to make clear which meaning is intended and whether it requires possession or ownership. Consequently, it should be clarified.

b) How the proposed amendment resolves the problem:

The ambiguity which arises from the use of the word “held” in subsection l(b) can be resolved by the context. Under subsection 47(1), every individual has a right of access to “any personal information about the individual contained in a personal information bank in the custody or under the control of an institution;”.

It is evident from the context that the controls on an institution’s use and disclosure apply to personal information in its custody or under its control – sections 41 and 42. The proposed amendment reflects this and clarifies the meaning of the word “held” in the present subsection l(b).

TECHNICAL ISSUE IV

Present section:

13.-(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains,

(g) a feasibility study or other technical study, including a cost estimate, relating to a government policy or project;

Proposed amendment:

13.-(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains,

(g) a feasibility study or other technical study, including a cost estimate, relating to a policy or project of an institution;

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

Clearly, the ambit of the Act extends beyond the regulation of the information in the custody or under the control of “government” in the strict sense. It extends to information in the custody or under the control of any agency, board, commission, corporation or other body designated as an institution in the regulations under the Act. However, if subsection 13(2)(g) of the Act is read strictly, it is an exception to an exemption from the right of access which only applies to a record that contains a feasibility study or other technical study, relating to a government policy or project. This is not in accordance with the intent of the Act, as evident from a review of other sections of the Act.

b) How the proposed amendment resolves the problem:

The proposed amendment brings subsection 13(2)(g) of the Act in line with other provisions of the Act and eliminates any confusion that may result from the use of the word “government” in the provision. The proposed amendment is also consistent with the wording found in subsection 7(2)(f) of the Municipal Freedom of Information and Protection of Privacy Act, 1989 (the municipal Act). Subsection 7(2)(g) of the municipal Act is the equivalent of subsection 13(2)(g) of the Act.

TECHNICAL ISSUE V

Present sections:

24.– (2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

(3) The applicant may indicate in the request that it shall, if granted, continue to have effect for a specified period of up to two years.

(4) When a request that is to continue to have effect is granted, the institution shall provide the applicant with,

(b) a statement that the applicant may ask the Commissioner to review the schedule.

Proposed amendments:

24.– (2) If the request does not sufficiently describe the record sought, the institution shall inform the person seeking accessof the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

(3) The person seeking access may indicate in the request that it shall, if granted, continue to have effect for a specified period of up to two years.

(4) When a request that is to continue to have effect is granted, the institution shall provide the person seeking access with,

(b) a statement that the person seeking access may ask the Commissioner to review the schedule.

Reason for the proposed amendments:

a) Nature of the problem to be addressed by the proposed amendments:

The terminology in section 24 is inconsistent. Different words or expressions are used to denote the same thing. Subsection 24(1) refers to “(a) person seeking access to a record …”. Subsections 24(2), 24(3) and 24(4) refer to the “applicant”. Subsections 25(1)(b) and 27(2)(c) refer to “the person who made the request”. Section 26 refers to “the person who requests access”. The wording used in subsections 24(1), 25(1)(b) and 27(2)(c) to refer to the requester is either identical or very similar and it is not ambiguous. On the other hand, the reference to the “applicant” in subsections 24(2), 24(3) and 24(4) is confusing even though the meaning can be resolved by the context, in particular subsection 24(1).

b) How the proposed amendments resolve the problem:

The proposed amendments use the same words or expressions to denote the same thing, thereby eliminating any confusion.

TECHNICAL ISSUE VI

Present sections:

24.-(4) When a request that is to continue to have effect is granted, the institution shall provide the applicant with,

(b) a statement that the applicant may ask the Commissioner to review the schedule.

27.-(2) Where a head extends the time limit under subsection (1), the head shall give the person who made the request written notice of the extension setting out,

(c) that the person who made the request may ask the Commissioner to review the extension.

28.-(9) Where, under subsection (7), the head decides to disclose the record or a part thereof, the head shall give the person who made the request access to the record or part thereof within thirty days after notice is given under subsection (7), unless the person to whom the information relates asks the Commissioner to review the decision.

Proposed amendments:

24.-(4) When a request that is to continue to have effect is granted, the institution shall provide the applicant with,

(b) a statement that the applicant may appeal to the Commissioner for a review of the schedule.

27.-(2) Where a head extends the time limit under subsection (1), the head shall give the person who made the request written notice of the extension setting out,

(c) that the person who made the request may appeal to the Commissioner for a review of the extension.

28.-(9) Where, under subsection (7), the head decides to disclose the record or a part thereof, the head shall give the person who made the request access to the record or part thereof within thirty days after notice is given under subsection (7), unless the person to whom the information relates appeals the decision to the Commissioner.

Reason for the proposed amendments:

a) Nature of the problem to be addressed by the proposed amendments:

The terminology used in the provisions relating to access procedures is inconsistent. In this case, subsections 24(4), 27(2)(c) and 28(9) provide that the applicant, the person who made the request or the person to whom the information relates “may ask the Commissioner to review …”. In contrast, subsections 28(8)(a), 29(1)(b)(iv), 29(2)(d) and 29(3)(d) of the Act provide that the person to whom the information relates or the person who made the request may either “appeal to the Commissioner for a review of the decision” or “may appeal the decision to the Commissioner”.

b) How the proposed amendments resolve the problem:

The proposed amendments use the same words or expressions to denote the same thing, thereby eliminating any confusion with respect to the rights and powers that flow from “a review” as opposed to “an appeal”.

TECHNICAL ISSUE VII

Present section:

28.-(4) Where a head gives notice to a person under subsection (1), the head shall also give the person who made the request written notice of delay, setting out,

(a) that the record or part thereof may affect the interests of another party;

Proposed amendment:

28.-(4) Where a head gives notice to a person under subsection (1), the head shall also give the person who made the request written notice of delay setting out,

(a) that the disclosure of the record or part may affect the interests of another party;

Reason for the amendment:

a) Nature of the problem to be addressed by the proposed amendment:

There is a discrepancy between the wording contained in subsection 21(4)(a) of the Municipal Freedom of Information and Protection of Privacy Act, 1989 and the wording contained in its equivalent in the provincial Act – subsection 28(4)(a). The inclusion of the words “the disclosure of” in subsection 21(4)(a) of the municipal Act appears to be more accurate. The omission of the words “the disclosure of” in subsection 28(4)(a) appears to be a drafting error.

b) How the proposed amendment resolves the problem:

The proposed amendment removes the discrepancy between the wording contained in subsection 28(4)(a) of the provincial Actand subsection 21(4)(a) of the municipal Act. It corrects a drafting error.

TECHNICAL ISSUE VIII

Present sections:

41.– An institution shall not use personal information in its custody or under its control except,

(a) where the person to whom the information relates has identified that information in particular and consented to its use;

42. An institution shall not disclose personal information in its custody or under its control except,

(b) where the person to whom the information relates has identified that information in particular and consented to its disclosure;

Proposed amendments:

41.– An institution shall not use personal information in its custody or under its control except,

(a) where the individual to whom the information relates has identified that information in particular and consented to its use;

42. An institution shall not disclose personal information in its custody or under its control except,

(b) where the individual to whom the information relates has identified that information in particular and consented to its use.

Reason for proposed amendments:

a) Nature of the problem to be addressed by the proposed amendments:

The Act refers to both persons and individuals. The word “person” is not defined in the Act. The definition of the word “person” in the Interpretation Act includes corporations. However, Part III of the Act, in which subsections 41(a) and 42(b) are found, only protects the personal information of individuals.

b) How the proposed amendments resolve the problem:

Since Part III of the Act only applies to protect the personal information of individuals, the proposed amendments by referring to the individual and not to the person are consistent with the intent of Part III.

TECHNICAL ISSUE IX

Present sections:

40.-(4) A head shall dispose of personal information under the control of the institution in accordance with the regulations.

44. A head shall cause to be included in a personal information bank all personal information under the control of the institution that is organized or intended to be retrieved by the individual’s name or by an identifying number, symbol or other particular assigned to the individual.

46.-(3) Where the personal information in a personal information bank under the control of an institution is used or disclosed for a use consistent with the purpose for which the information was obtained or compiled by the institution but the use is not one of the uses included under clauses 45(d) and (e), the head shall,

(a) …

(b) …

Proposed amendments:

40.-(4) A head shall dispose of personal information in the custody or under the control of the institution in accordance with the regulations.

44. A head shall cause to be included in a personal information bank all personal information in the custody or under the control of an institution that is organized or intended to be retrieved by the individual’s name or by an identifying number, symbol or other particular assigned to the individual.

46.-(3) Where the personal information in a personal information bank in the custody or under the control of an institution is used or disclosed for a use consistent with the purpose for which the information was obtained or compiled by the institution but the use is not one of the uses included under clauses 45(d) and (e), the head shall,

(a) …

(b) …

Reason for proposed amendments:

a) Nature of the problem to be addressed by the proposed amendments:

The wording in the existing provisions is not consistent with subsection 47(1)(a) of the Act, i.e., “every individual has a right of access to personal information about the individual in a personal information bank in the custody and under the control of an institution; ” . Subsections 40(4) and subsection 46(3) and section 44 speak only about personal information “under the control of the institution” . This is also inconsistent with other provisions under Part III – section 41, section 42, subsection 47(1)(b) and subsection 48(1) which make reference to personal information “in the custody and under the control of the institution”.

b) How the proposed amendments resolve the problem:

The proposed amendments try to achieve consistency for the same expressions, in order to avoid confusion and speed up understanding of the Act.

TECHNICAL ISSUE X

Present section:

49. A head may refuse to disclose to the individual to whom the information relates personal information,

(c) that is evaluative or opinion material compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of government contracts and other benefits where the disclosure would reveal the identity of a source who furnished information to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence;

Proposed amendment:

49. A head may refuse to disclose to the individual to whom the information relates personal information,

(c) that is evaluative or opinion material compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for awarding of contracts and other benefits by an institution where the disclosure would reveal the identity of a source who furnished information to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence;

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

The reference in subsection 49(c) to “government contracts and other benefits” is confusing and is not in accord with the rest of the subsection and other provisions of the Act, which indicate that the reference should really be to “contracts and other benefits by an institution”. Clearly, the Act not only regulates the disclosure of information in the custody or under the control of “government” in the strict sense but it also regulates the disclosure of information in the custody or under the control of any agency, board, commission, corporation or other body designated as an institution in the regulations under the Act.

b) How the proposed amendment resolves the problem:

The proposed amendment clarifies subsection 49(c) of the Act and brings it in line with other sections of the Act. The proposed amendment is also consistent with subsection 38(c) of the municipal Act. Subsection 38(c) of the municipal Act is the equivalent of subsection 49(c) of the Act.

TECHNICAL ISSUE XI

Present section:

57.– (4) A person who is required to pay a fee under subsection (1) may ask the Commissioner to review the amount of the fee or the head’s decision not to waive the fee.

Proposed amendment:

57.– (4) A person who is required to pay a fee under subsection (1) may appeal to the Commissioner for a review of the amount of the fee or the head’s decision not to waive the fee.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

The terminology used in subsection 57(4) is inconsistent with that used in other similar provisions in the Act. Subsections 28(8)(a), 29(1)(b), 29(2)(d) and 29(3)(d) of the Act all use the words “may appeal the decision to the Commissioner” or “may appeal to the Commissioner for a review of the decision”.

b) How the proposed amendment resolves the problem:

The proposed amendment uses the same words or expressions to denote the same thing as in subsections 28(8)(a), 29(1)(b), 29(2)(d) and 29(3)(d) of the Act so as to eliminate any confusion with which may arise with respect to rights and powers that flow from “a review” as opposed to “an appeal”.

CLARIFICATION

SUMMARY: CLARIFICATION

A “clarification” may or may not affect substantive rights. The need for clarification of a vague term or the need to remove some other source of uncertainty has arisen as a result of the Commission’s experience in applying the Freedom of Information and Protection of Privacy Act, 1987.

I. 6.-(4) Part II of the Legislative Assembly Retirement Allowances Act, as amended, except sections 15 and 16 and 18(5) applies with necessary modifications to the Commissioner in the same manner as if the Commissioner were a member of the Legislative Assembly and for the purpose,

“average annual remuneration” means the average annual salary of the Commissioner during any thirty six months of his or her service, which months need not be consecutive, during which his or her salary was highest;

“remuneration” means the salary of the Commissioner.

II. 7. If the Commissioner dies, resigns or is unable or neglects to perform the functions of the Office of the Commissioner, the Lieutenant Governor in Council may appoint a Temporary Commissioner to hold office for a term of not more than six months who shall, while in such office, have the powers and duties of the Commissioner and shall be paid such salary or other remuneration and expenses as the Lieutenant Governor in Council may fix.

[The proposed amendment deletes the words “…, while the Legislature is not in session” on the first line.]

III. 8.-(2) The employee benefits applicable from time to time under the Public Service Act to civil servants who are not within a unit of employees established for collective bargaining under any Act apply or continue to apply, as the case may be, to the full-time permanent and probationary employees of the Commissioner and the Commissioner, or any person authorized in writing by him or her, may exercise the powers and duties of a deputy minister under that Act in respect of such benefits.

IV. 8.-(3) The Public Service Pension Act, 1989 applies to every person employed by the Commissioner after the 31st day of December, 1989 as though the Commissioner were a commission designated by the Lieutenant Governor in Council under subsection 2(1) of Schedule 1 of that Act.

V. 10.-(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22.

(3) The right of access under subsection (1) does not extend to written representations made by an institution to the Commissioner in the course of an inquiry by the Commissioner under this Act.

VI. 12.-(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record where,

(b) the record was prepared for the present Executive Council and the present Executive Council consents to access being given.

VII. 19. A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

VIII. 22. A head may refuse to disclose a record where,

(a) the record or the information contained in the record has been published or is currently available to the public, and the head has informed the requester of the specific location of the record or the information contained in the record;

IX. 22.-(1) A head may refuse to disclose a record where,

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

(2) Where a head refuses to disclose a record or the information contained in the record under clause (b) and subsequently learns that the record will not be published as scheduled, the head shall immediately give the person who made the request, written notice in accordance with section 26.

X. 29.-(1) Notice of refusal to give access to a record or a part thereof under section 26 shall set out,

(b) where there is such a record,

(i) a description of the record,

(ii) the specific provision of this Act under which access is refused,

(iii) the reason the provision applies to the record,

(iv) the name and position of the person responsible for making the decision, and

(v) that the person who made the request may appeal to the Commissioner for a review of the decision.

(3) Where the head refuses to disclose a record or part thereof under subsection 28(7), the head shall state in the notice given under subsection 28(7),

(a) description of the record of part thereof;

(b) the specific provision of this Act under which access is refused;

(c) the reason the provision named in clause (a) applies to the record;

(d) the name and office of the person responsible for making the decision to refuse access; and

(e) that the person who made the request may appeal to the Commissioner for a review of the decision.

XI. 39.-(2) Where personal information is collected on behalf of an institution, the head shall, unless notice is waived by the responsible minister, inform the individual to whom the information relates of,

(a) the specific legal authority for the collection;

XII. 48.-(2) Subsections 10(2) and 24(2) and sections 25, 26, 27, 28, 29 and 30 apply with necessary modifications to a request made under subsection (1).

Subsection 48(3) should be repealed.

XIII. Subsection 52(11) of the Act should be repealed.

XIV. 54.-(2) Where the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner shall not order the head to disclose the record or part.

(3) Notwithstanding subsection (2), where the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner may review the head’s exercise of discretion to determine whether it has been exercised within proper limits and on proper principles.

[The present subsections 54(3) and (4) would become subsections 54(4) and (5) respectively.]

XV. 57.-(1) Where no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay costs no greater than the following:

(a) a search charge for every hour of manual search required in excess of two hours to locate the record;

(c) computer and other costs incurred in locating, retrieving, processing and copying the record;

XVI. 4.-(4) The Commissioner shall appoint one or two of his or her employees to be Assistant Commissioners.

8.-(1) Subject to the approval of the Lieutenant Governor in Council, the Commissioner may employ such staff as the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions of employment.

56.-(1) The Commissioner may in writing delegate a power or duty granted to or vested in the Commissioner to any person, except the power to delegate under this section, subject to such limitations, restrictions, conditions and requirements as the Commissioner may set out in the delegation.

62.-(1) A head may in writing delegate a power or duty granted or vested in the head to an employee or employees of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation.

XVII. 65.-(2) This Act does not apply to a record in the custody or under the control of an institution in respect of a patient in a psychiatric facility as defined by clause 1(p) of the Mental Health Act, where the record, …

Detailed Discussion: Clarification

A “clarification” may or may not affect substantive rights. The need for clarification of a vague term or the need to remove some other source of uncertainty has arisen as a result of the Commissioner’s experience in applying the Freedom of Information and Protection of Privacy Act, 1987.

CLARIFICATION I

Present section:

6.-(4) Part II of the Legislative Assembly Retirement Allowance Act, except sections 15 and 16 and subsection 18(5) applies with necessary modifications to the Commissioner in the same manner as if the Commissioner were a member of the Legislative Assembly and for the purpose,

“average annual remuneration” means the average annual salary of the Commissioner during any five years of his or her service, which years need not be consecutive, during which his or her salary was highest; (“remuneration annuelle moyenne”)

“remuneration” means the salary of the Commissioner. (“remuneration”)

Proposed amendment:

6.-(4) Part II of the Legislative Assembly Retirement Allowance Act, as amended, except sections 15 and 16 and subsection 18(5) applies with necessary modifications to the Commissioner in the same manner as if the Commissioner were a member of the Legislative Assembly and for the purpose, “average annual remuneration” means the average annual salary of the Commissioner during any thirty six months of his or her service, which months need not be consecutive, during which his or her salary was highest;

“remuneration” means the salary of the Commissioner.

Reason for the proposed amendment:

a) Nature of the problems to be addressed by the proposed amendment:

It is not clear what effect, if any, the definition of “average annual remuneration” in subsection 14(a) of the Legislative Assembly Retirement Allowances Act,1984, has on the definition in subsection 6(4) of the Act.

It appears that subsection 6(4) of the Ombudsman Act provided a model for the wording of subsection 6(4) of the Act. The wording of subsection 6(4) of the Act is substantially the same as that contained in subsection 6(4) of the Ombudsman Act. It may be that the drafters of the Act, when drafting subsection 6(4), failed to take into account the fact that the definition in subsection 6(4) of the Ombudsman Act was outdated and had, in effect, been repealed and substituted by the definition of “average annual remuneration” as contained in subsection 14(a) of the Legislative Assembly Retirement Allowances Act.

The Ombudsman Act was enacted in 1975, prior to the enactment of the Legislative Assembly Retirement Allowances Amendment Act, 1977. At the time of the enactment of the Ombudsman Act, the Legislative Assembly Retirement Allowances Act, 1973, defined “average annual remuneration”, under Part II, as follows:

14. In this Part,

(a) “average annual remuneration” means the average annual remuneration of a person during any five years of his service, which years need not be consecutive, during which his remuneration was highest; (emphasis added)

The definition of “average annual remuneration” in subsection 14(a) of The Legislative Assembly Retirement Allowances Act, 1973 was incorporated into subsection 6(4) of the Ombudsman Act. The wording of subsection 6(4) of the Ombudsman Act is identical to the wording found in subsection 14(a) of The Legislative Assembly Retirement Allowances Act, 1973 except for the reference to the “Ombudsman” in place of “person” in the Ombudsman Act.

However, subsection 14(a) of The Legislative Assembly Retirement Allowances Act, 1973 was repealed in 1977 and the following provision substituted by section 2 of The Legislative Assembly Retirement Allowances Amendment Act, 1977:

(a) “average annual remuneration” means,

(i) in respect of a person who was in receipt of an allowance immediately before the 1st day of October, 1977, the average annual remuneration of the person during any five fiscal years of his service, which years need not be consecutive, during which his remuneration was the highest, or

(ii) in respect of a person who became entitled or who becomes entitled to an allowance on or after the 1st day of October, 1977, the average annual remuneration of the person during any three fiscal years of his service, which years need not be consecutive, during which his remuneration was highest. (emphasis added)

And, subclause 14(a)(ii) was amended, 1984, by subsection 2(1) of the Legislative Assembly Retirement Allowances Amendment Act, 1984, to read as follows:

(ii) in respect of a person who becomes entitled to an allowance on or after the first day of October 1977, the average annual remuneration of the person during any thirty-six months of his service, which months need not be consecutive, during which his remuneration was highest; (emphasis added)

Subsection 2(2) of the Legislative Assembly Retirement Allowances Amendment Act, 1984 provided that subclause 14(a)(ii) as amended by subsection 2(1) of the Legislative Assembly Retirement Allowances Amendment Act, 1984 “(did) not apply in respect of a person who became or becomes entitled to an allowance under the said Act before this section comes into force.”

The definition of “average annual remuneration” in subsection 6(4) of the Ombudsman Act was not explicitly repealed or amended to bring it in line with the new definition in subsection 14(a) of the Legislative Assembly Retirement Allowances Act, as amended.

However, given that subsection 6(4) of the Ombudsman Act stipulates, at the outset, that except for sections 15 and 16 and subsection 18(5) and clause 19(2)(a), the Legislative Assembly Retirement Allowances Act applies, with necessary modification to the Ombudsman in the same manner as if he were a member of the Legislative Assembly, it appears that while subsection 6(4) of the Ombudsman Act has not been explicitly repealed or amended to bring it in conformity with the revised definition in subsection 14(a) of the Legislative Assembly Retirement Allowances Act, as amended, the reference to the definition of “average annual remuneration”, by virtue of subsection 15(b) of the Interpretation Act, is deemed to refer to the definition by which it is substituted, i.e., the definition contained in subsection 14(a) of the Legislative Assembly Retirement Allowances Act, 1984.

Subsection 15(b) of the Interpretation Act provides:

15. Where an Act is repealed and other provisions are substituted by way of re-enactment, amendment, revision or consolidation,

(b) a reference in an unrepealed Act, or in a rule, order or regulation made thereunder to such repealed Act, shall, as regards any subsequent transaction, matter or thing be held and construed to be a reference to the provisions of the substituted Act relating to the same subject-matter, the repealed Act stands good and shall be read and construed as unrepealed in so far, and in so far only, as is necessary to support, maintain or give effect to such unrepealed Act, or such rule, order or regulation made thereunder.

Thus, given that subsection 6(4) of the Ombudsman Act provided the model for the wording of subsection 6(4) of the Act, it is likely that there has been an oversight in drafting when it came to the definition of “average annual remuneration”. The effect of amendment/substitution to the definition in the Legislative Assembly Retirement Allowances Act since 1975 was not considered. Accordingly, instead of subsection 6(4) providing that the Commissioner’s pension will be based on the best of three years of service (of those who became entitled after October 1977), the provision requires that it will be based on the best five years of service.

b) How the proposed amendment resolves the problem:

The proposed amendment will eliminate confusion caused by the differing definitions of “average annual remuneration”. The general intent of subsection 6(4) of the Act appears to be, for purposes of the Commissioner’s eligibility for a pension, that the Commissioner be treated as if he or she is a member of the Legislative Assembly. The proposed amendment would bring the definition of “average annual remuneration” in conformity with the definition of the term in subsection 14(a) of the Legislative Assembly Retirement Allowances Act which is applicable to a member of the Legislative Assembly.

CLARIFICATION II

Present section:

7. If, while the Legislature is not in session, the Commissioner dies, resigns or is unable or neglects to perform the functions of the Office of Commissioner, the Lieutenant Governor in Council may appoint a Temporary Commissioner to hold office for a term of not more than six months who shall, while in such office, have the powers and duties of the Commissioner and shall be paid such salary or other remuneration and expenses as the Lieutenant Governor in Council may fix.

Proposed amendment:

7. If the Commissioner dies, resigns or is unable or neglects to perform the functions of the Office of Commissioner, the Lieutenant Governor in Council may appoint a Temporary Commissioner to hold office for a term of not more than six months who shall, while in such office, have the powers and duties of the Commissioner and shall be paid such salary or other remuneration and expenses as the Lieutenant Governor in Council may fix.

Reason for the proposed amendment:

a) Source of uncertainty:

What happens in a situation where the Commissioner dies or resigns while the House is in session? The present section does not appear to allow for the appointment of a Temporary Commissioner by the Lieutenant Governor in Council in such a situation. It appears from a review of sections 4 and 7 as presently worded, that in a situation where the Commissioner dies or resigns while the House is in session, the Lieutenant Governor in Council is only able to appoint a Commissioner on the address of the Assembly for a term of five years. It cannot appoint a Temporary Commissioner. However, even while the House is in session, there may be a need for a temporary replacement while the selection process for a “permanent” Commissioner takes place.

b) How the proposed amendment resolves the problem:

The proposed amendment addresses the question of what happens in a situation where the Commissioner dies or resigns while the House is in session. It allows for the appointment of a Temporary Commissioner where the Commissioner dies or resigns while the House is in session and the selection process for a permanent Commissioner is underway.

CLARIFICATION III

Present section:

8.-(2) The employee benefits applicable from time to time to the public servants of Ontario with respect to,

(a) cumulative vacation and sick leave credits for regular attendance and payments in respect of such credits;

(b) plans for group life insurance, medical-surgical insurance or long term income protection; and

(c) the granting of leave of absence.

apply to the employees of the Commissioner and where such benefits are provided for in regulations made under the Public Service Act, the Commissioner, or any person authorized in writing by him or her, may exercise the powers and duties of a minister or deputy minister of the Civil Service Commission under such regulations.

Proposed amendment:

8.-(2) The employee benefits applicable from time to time under the Public Service Act to civil servants who are not within a unit of employees established for collective bargaining under any Act apply or continue to apply, as the case may be, to the full-time permanent and probationary employees of the Commissioner and the Commissioner, or any person authorized in writing by him or her, may exercise the powers and duties of a deputy minister under that Act in respect of such benefits.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

It is not clear whether employees of the Commissioner are entitled to receive all the benefits which civil servants receive under the Public Service Act.

Subsection 8(1) provides that the Commissioner, subject to the approval of the Lieutenant Governor in Council may determine the salary and remuneration and terms and conditions of employment of his or her employees. However, with respect to benefits, subsection 8(2) specifically sets out the type of benefits which apply to the employees of the Commissioner. Arguably, the specific list of benefits in subsection 8(2) prevents the Commissioner from granting his or her employees benefits which do not fall within the categories listed in subsection 8(2) of the Act.

Consequently, while subsection 8(2) may have originally* been drafted to incorporate all the same benefits as those applicable to public servants of Ontario, as new benefits are awarded to public servants, it appears from a review of section 8, that employees of the Commissioner may not be entitled to receive these new or additional benefits because of the specific wording of subsection 8(2). This could have a negative impact on the Commissioner’s ability to attract well qualified candidates from the provincial Civil Service and elsewhere to fill positions within his or her office.

(*Note: It appears that the wording of subsection 8(2) of the Act was taken from subsection 8(2) of the Ombudsman Act. The wording in subsection 8(2) of the Ombudsman Act has not changed since the Ombudsman Act was enacted in 1975.)

Secondly, the present wording of subsection 8(2) does not accord with current practice. According to a representative of the Human Resources Branch of the Office of the Assembly, at present, employees of the Commissioner receive all of the benefits which public servants receive. In practice, if any new benefits are made applicable to public servants (as they frequently are), these benefits are also made applicable to employees of the Commissioner.

b) Benefits applicable to employees of other Officers of the Legislative Assembly:

(1) The Provincial Auditor

The provision in the Audit Act which addresses the issue of employee benefits is broader than the one found in the Act. The employees of the Office of the Provincial Auditor are expressly provided with a right to all the benefits set out in the Public Service Act. The relevant provision in the Audit Act states as follows:

22.-(1) The employee benefits applicable from time to time under the Public Service Act to civil servants who are not within a unit of employees established for collective bargaining under any Act apply or continue to apply, as the case may be, to the Auditor, the Assistant Auditor and to the full-time permanent and probationary staff of the Office of the Auditor and the Board or any person authorized by the Board may exercise the powers and duties of the Civil Service Commission and the Auditor or any person authorized in writing by the Auditor may exercise the powers and duties of a deputy minister under that Act in respect of such benefits.

“Board” is defined in subsection l(d) of the Audit Act as “the Board of Internal Economy referred to in section 84 of theLegislative Assembly Act.

(2) The Chief Election Officer

The wording of the provision in the Election Act, 1984 is almost identical to subsection 22(1) of the Audit Act. The difference between section 115 of the Election Act, 1984 and subsection 22(a) of the Audit Act is that the former makes reference to the Chief Election Officer rather than to the Auditor.

(3) The Conflict of Interest Commissioner

The Members’ Conflict of Interest Act, 1988 makes employees who work for the Conflict of Interest Commissioner, members of the staff of the Office of the Assembly. Subsection 10(6) provides that:

The employees and officers that are necessary for the performance of the duties of the Commissioner shall be members of the staff of the Office of the Assembly.

Section 89 of the Legislative Assembly Act speaks to the question of the benefits of employees of the Office of the Assembly. It states:

(1) Subject to the approval of the Board of Internal Economy, the Speaker may,

(a) establish job classifications and salary ranges;

(b) provide a system of cumulative vacation and sick leave credits for regular attendance and payments in respect of such credits;

(c) provide for the establishment of plans of group life insurance, medical-surgical insurance or long-term income protection;

(d) provide for the granting of leave of absence; and

(e) prescribe any other terms and conditions of employment, for employees of the Office of Assembly.

(2) The employee benefits applicable from time to time to the public servants of Ontario with respect to matters referred to in clauses l(b), (c) and (d) apply or continue to apply, as the case may be, to the permanent and full-time employees of the Office of the Assembly until a plan or system in relation to the same subject-matter is provided by the Speaker under this Act, and where any such benefits are provided for in regulations made under the Public Service Act, the Speaker, or any person authorized in writing by him, may exercise the powers and duties of a Minister or Deputy Minister or of the Civil Service Commission under such regulations.

It appears that there is little difference between the benefits applicable to employees of the Office of the Assembly and the benefits applicable from time to time to public servants of Ontario. According to a representative of the Human Resources Branch of the Office of the Assembly, with respect to the majority of the positions in the Office of the Assembly, there is no substantive difference. With respect to a few positions, special benefits apply because of the peculiar circumstances under which these jobs must be performed, for example, chauffeur to the Premier.

(4) The Ombudsman

Again, the wording of subsection 8(2) of the Act appears to have been taken from subsection 8(2) of the Ombudsman Act.

c) How the proposed amendment resolves the problem:

The proposed amendment updates an outdated provision. It reflects the realities of the situation, i.e., that employees of the Commissioner receive all of the benefits which are applicable to public servants under the Public Service Act. The proposed amendment by specifically providing that employees of the Commissioner are entitled to benefits applicable from time to time to the public servants of Ontario will strengthen the Commissioner’s ability to attract employees from the Civil Service and elsewhere.

CLARIFICATION IV

Present section:

8.-(3) The Public Service Superannuation Act applies to the permanent and probationary staff of the Commissioner as though the Commissioner were a commission designated by the Lieutenant Governor in Council under section 28 of that Act.

Proposed amendment:

8.-(3) The Public Service Pension Act, 1989 applies to every person employed by the Commissioner after the 31st day of December, 1989 as though the Commissioner were a commission designated by the Lieutenant Governor in Council under subsection 2(1) of Schedule 1 of that Act.

Reason for the proposed amendment:

a) Source of uncertainty:

How do the changes to the Public Service Superannuation Act, specifically, the repeal of section 28 of that Act, effect the staff of the Commissioner? Do any parts of the Public Service Pension Act, 1989 apply to any or all of the staff of the Commissioner?

The majority of the provisions contained in the Public Service Superannuation Act, including section 28, were repealed on the 1st day of January, 1990 pursuant section 17 of the Public Service Pension Act, 1989. The Public Service Pension Act, 1989came into force on the 31st day of December, 1989. The Public Service Pension Act, 1989 applies to “every person employed after the 31st day of December, 1989 in the service of an employer”. Unlike the Public Service Superannuation Act, the Public Service Pension Act, 1989 applies to contract, as well as permanent and probationary staff of the government.

b) How the proposed amendment resolves the problem:

The proposed amendment expressly addresses the effect of the repeal of section 28 of the Public Service Superannuation Acton the staff of the Commissioner.

CLARIFICATION V

Present sections:

10.-(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22.

52.-(13) The person who requested access to the record, the head of the institution concerned and any affected party shall be given an opportunity to make representations to the Commissioner, but no person is entitled to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

Proposed amendment:

10.-(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22.

(3) The right of access under subsection (1) does not extend to written representations made by an institution to the Commissioner in the course of an inquiry by the Commissioner under this Act.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

The problem has arisen in the context of appeals involving requests made directly to institutions for representations that the institutions have made to the Commissioner in the course of inquiries under the Act. Some institutions have denied access to their representations and some have given copies to the requesters where the appeals have been resolved. In cases where the requests for representations have been denied, some requesters have appealed. It is an unsatisfactory situation where the Commissioner may in the course of an inquiry under subsection 52(13) of the Act refuse to allow an appellant to see the representations of the other party, and then have the appellant make a request directly to the institution who made the representations. The request would be refused and the Commissioner would have to make an Order in what would be a second appeal on a matter which the Commissioner has already decided.

The Act, as currently worded, appears to allow for such a situation to arise. This is an unusual way by which the Commissioner may be asked to re-consider his or her decision with respect to access to representations made to the Commissioner in the course of an inquiry. It not only undermines the authority of the Commissioner’s initial ruling but, in addition, it may result in the expenditure of a substantial amount of time and effort on the part of the institution in responding to the request and appeal.

b) How the proposed amendment will resolve the problem:

The Commissioner, under subsection 52(13) of the Act, is the only person in a position to control, in the course of an inquiry under the Act, the right of a party to be present during representations, the right to have access to them, and the right to comment on them. The proposed amendment will confirm and reinforce this fact, and will prevent the unsatisfactory situation which results when an appeal involving a request to an institution for representations made to the Commissioner is filed with the Commissioner from happening.

CLARIFICATION VI

Present section:

12.-(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record where,

(b) the Executive Council for which, or in respect of which, the record has been prepared consents to access being given.

Proposed amendment:

12.-(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record where,

(b) the record was prepared for the present Executive Council and the present Executive Council consents to access being given.

Reason for the proposed amendment:

a) Source of uncertainty:

As presently worded, the exception to the cabinet record exemption in subsection 12(2) only applies to the Executive Council for which or in respect of which the record has been prepared. One Executive Council cannot consent to the release of another’s record. What happens in a situation where the Executive Council for which or in respect of which the record has been prepared cannot be assembled because of unavailability or death of any or some of its members?

The need to assemble a previous Executive Council in order to seek consent to access being given to a record is unworkable. Unavailability, not to mention death of a member of the previous Executive Council, raises difficulties.

b) How the proposed amendment resolves the problem:

The proposed amendment makes the exception to the exemption workable.

CLARIFICATION VII

Present section:

19. The head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

Proposed amendment:

19. A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

Reason for the proposed amendment:

a) Source of uncertainty:

Does the definition of “Crown counsel” extend to any legal adviser to an institution or is the term restricted to an employee of an institution holding the specific position of “Crown counsel”?

The Commissioner addressed this issue in Orders No. 52 and 116 wherein he concluded that the definition of “Crown counsel” extended to any legal adviser to an institution covered by the Act.

b) How the proposed amendment resolves the problem:

The proposed amendment resolves the uncertainty. It codifies the Commissioner’s interpretation of the definition of “Crown counsel” in the context of section 19 of the Act. It is also consistent with the wording found in section 12 of the Municipal Freedom of Information and Protection of Privacy Act, 1989. Act. 1989, which is the equivalent of section 19 of the Act.

CLARIFICATION VIII

Present section:

22. A head may refuse to disclose a record where,

(a) the record or the information contained in the record has been published or is currently available to the public; or

(b) …

Proposed amendment:

22. A head may refuse to disclose a record where,

(a) the record or the information contained in the record has been published or is currently available to the public, and the head has informed the requester of the specific location of the record or the information contained in the record; or

(b) …

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

Subsection 22(a) does not expressly require the head of an institution, where he or she refuses to disclose a record under this provision, to inform the person requesting access to the record of the specific location of the record or information contained in the record. Notwithstanding this, is there a duty on the head to do so?

The purpose of this discretionary exemption is discussed at page 108 of Order No. 170:

…the purpose of the discretion conferred by section 22(a) relates to questions of convenience. Obviously, there is no other public interest to be served by withholding disclosure of information which is readily available elsewhere. Accordingly, the discretion to disclose is conferred for the evident purpose of enabling a head to avoid disclosure where that process merely involves expending the resources of the Ministry on the photocopying of material which is otherwise readily and, from the Ministry’s point of view, more conveniently available to the requester in another form.

As indicated above, the problem with this subsection is that it does not specifically require the head, where he or she refuses to disclose a record under this provision, to inform the requester of the specific location of the record or information contained in the record. When this exemption is claimed by an institution and the requester is not advised by the institution of the specific location of the record or information contained in the record, the requester will simply be sent on a fishing expedition to discern the location of the record or information contained in the record thought to be relevant by the Ministry. The knowledge that something relevant to the request is available is of no use if the information or record is not accessible due to ignorance over its location. Clearly, the purpose of the exemption is defeated under such circumstances.

This problem raised by the general wording of subsection 22(a) has been addressed by the Commissioner in several Orders – e.g. Orders. No. 123 and 124. The Commissioner has interpreted subsection 22(a) to require by necessary implication, the head to inform the requester of the specific location of the record that responds to the request or the information contained in the record. Specifically, the Commissioner has stated as follows:

Whenever an institution relies on subsection 22(a), the head has a duty to inform the requester of the specific location of the records or information in question.

b) Other jurisdictions:

While jurisdictions like Canada (federal), Manitoba and Australia currently do not have “location informing” detail requirements where access is requested to a record or information in a record which is available to the public, several Canadian provinces impose such a requirement:

i) Quebec

Quebec has the strongest requirement. Article 13 of An Act respecting Access to documents held by public bodies and the Protection of personal information provides:

Notwithstanding sections 10 and 11, the right of access to a document produced by or for a public body and subsequently published may be exercised by procuring enough information to enable the applicant to obtain or examine the document where it is available.

ii) New Brunswick

Subsection 4(1)(b) of the Right to Information Act, provides:

4(1) Where a request for information is granted by an appropriate Minister or a judge of the Supreme Court, the appropriate Minister shall

(b) where the information requested is published, refer the applicant to the publication,

iii) Nova Scotia

Subsection 8(1) of Freedom of Information Act, 1977, provides:

8.(1) Where a person applies for information which is published, the department may refer the applicant to the publication.

c) How the amendment resolves the problem:

The proposed amendment specifically requires a head, when claiming this exemption, to inform the requester of the location of the record or the information contained in the record. While it is our Office’s current policy to require an institution claiming the protection of the exemption under subsection 22(a) of the Act to provide the requester with the specific location of the record or information contained in the record, this requirement would have even more legitimacy if it was added to subsection 22(a) itself.

The policy implications of the proposed amendment to the rest of the Act are minimal. First of all, an institution will not be greatly inconvenienced by this requirement because the record is one which is in the custody or under the control of the institution and it is in the best position to know where the requester may most readily access it. Secondly, the proposed amendment merely codifies what is necessarily implicit from a review of subsection 22(a) of the Act.

CLARIFICATION IX

Present section:

22. A head may refuse to disclose a record where,

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

Proposed amendment:

22.-(1) A head may refuse to disclose a record where,

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

(2) Where a head refuses to disclose a record or the information contained in the record under clause (b) and subsequently learns that the record will not be published as scheduled, the head shall immediately give the person who made the request, written notice in accordance with section 26.

Reason for the proposed amendment:

a) Source of uncertainty:

What happens in a situation where the head has, in good faith, claimed the protection of subsection 22(b), and the record or the information contained in the record is in fact not published within ninety days or as scheduled? Is the requester required to make another access request for the same record? Can the institution continue to claim the exemption, even if the time for publication has expired and the record or information contained in the record has not in fact become available in published form?

b) How the proposed amendment resolves the problem:

The proposed amendment attempts to resolve the uncertainty. The proposed amendment does not require that the requester make another request for the same record. At the same time, it gives the head of an institution the requisite time within which to respond to the request, in light of the change in circumstances.

CLARIFICATION X

Present sections:

29.-(1) Notice of refusal to give access to a record or a part thereof under section 26 shall set out,

(b) where there is such a record,

(i) the specific provision of this Act under which access is refused,

(ii) the reason the provision applies to the record,

(iii) the name and position of the person responsible for making the decision, and

(iv) that the person who made the request may appeal to the Commissioner for a review of the decision.

(3) Where a head refuses to disclose a record or part thereof under subsection 28(7), the head shall state in the notice given under subsection 28(7),

(a) the specific provision of this Act under which access is refused;

(b) the reason the provision named in clause (a) applies to the record;

(c) the name and office of the person responsible for making the decision to refuse access; and

(d) that the person who made the request may appeal to the Commissioner for a review of the decision.

Proposed amendments:

29.-(1) Notice of refusal to give access to a record or a part thereof under section 26 shall set out,

(b) where there is such a record,

(i) a description of the record,

(ii) the specific provision of this Act under which access is refused,

(iii) the reason the provision applies to the record,

(iv) the name and position of the person responsible for making the decision, and

(v) that the person who made the request may appeal to the Commissioner for a review of the decision.

(3) Where the head refuses to disclose a record or part thereof under subsection 28(7), the head shall state in the notice given under subsection 28(7),

(a) a description of the record or part thereof;

(b) the specific provision of this Act under which access is refused;

(c) the reason the provision named in clause (a) applies to the record;

(d) the name and office of the person responsible for making the decision to refuse access; and

(e) that the person who made the request may appeal to the Commissioner for a review of the decision.

Reason for the proposed amendment:

a) Source of uncertainty:

Subsections 29(1)(b) and 29(3) do not specifically require that the contents of the notice given under section 26 and subsection 28(7) include a description of the record responding to the request. However, it appears from the context in which the provisions are found that they do. How can a requester make an informed decision about whether or not to appeal the decision of the head to the Commissioner, if the requester does not have some knowledge of the nature of the record?

In Order No. 81, the Commissioner held that in addition to the requirements explicitly set out in subsection 29(1)(b), subsection 29(1)(b) also requires that the contents of the section 26 refusal notice must include a general description of the records responding to the request.

b) How the proposed amendment resolves the problem:

The proposed amendments codify what is necessarily implicit from reviewing section 29 and the rest of the Act. It is necessary for the person who made the request to have some knowledge of the nature of the record so that the person can make an informed decision about whether or not to appeal the decision of the head to the Commissioner.

CLARIFICATION XI

Present section:

39.-(2) Where personal information is collected on behalf of an institution, the head shall, unless notice is waived by the responsible minister, inform the individual to whom the information relates of,

(a) the legal authority for the collection;

Proposed amendment:

39.-(2) Where personal information is collected on behalf of an institution, the head shall, unless notice is waived by the responsible minister, inform the individual to whom the information relates of,

(a) the specific legal authority for the collection;

Reason for the proposed amendment:

a) Source of uncertainty:

It is unclear from reviewing subsection 39(2) of the Act whether the legal authority for collection is required to be generally or specifically identified by the head.

The purpose of subsection 39(2), apparently, was to enable the individual to whom the information relates to verify or test the institution’s alleged authority for collection. This is difficult for the individual to do where the authority of the institution for collection is vaguely or generally identified.

In addition, a considered decision cannot be made by the individual to whom the information relates on whether or not to provide the requested information, if the consequences of failure to co-operate (i.e., penalties prescribed for breach of the law in question) cannot be determined where the specific statute and provision in question is not known.

b) How the proposed amendment resolves the problem:

The proposed amendment specifically requires the head to inform the individual to whom the information relates of the institution’s specific legal authority for collection.

CLARIFICATION XII

Present section:

48.-(1) An individual seeking access to personal information about the individual shall make a request therefore in writing to the institution that the individual believes has custody or control of the personal information and shall identify the personal information bank or otherwise identify the location of the personal information.

(2) Subsections 10(2) and 24(2) and sections 25, 26, 27, 28 and 29 apply with necessary modifications to a request made under subsection (1).

(3) Subject to the regulations, where an individual is to be given access to personal information requested under subsection (1), the head shall,

(a) permit the individual to examine the personal information; or

(b) provide the individual with a copy thereof.

Proposed amendment:

48.-(2) Subsections 10(2) and 24(2) and sections 25, 26, 27, 28, 29 and 30 apply with necessary modifications to a request made under subsection (1).

Subsection 48(3) should be repealed.

Reason for the proposed amendment:

a) Source of uncertainty:

Subsection 48(3) of the Act appears to qualify an individual’s (who is given access to a record or part thereof under the Act) general right to be given a copy of the record or part thereof under section 30 of the Act where personal information about the individual seeking access under subsection 48(1) of the Act is concerned.

Subsection 37(2) of the municipal Act, on the other hand, states that section 23 of the municipal Act (the equivalent of section 30 of the provincial Act) applies with necessary modifications to a request for personal information by the individual to whom it relates.

There does not appear to be a reason for the difference in wording between subsection 48(3) of the provincial Act and subsection 37(2) of the municipal Act.

As of January 1, 1991, pursuant to subsection 3(26) of Bill 52 (the Municipal Freedom of Information Statute Law Amendment Act, 1989) which amends section 57 of the provincial Act by adding a clause (la), a head is prohibited from charging an individual a fee for access to his or her personal information. If subsection 48(2) of the provincial Act is not amended to bring it in line with subsection 37(2) of the municipal Act, institutions covered under the provincial Act could opt for asking individuals who have requested personal information about themselves to view the information rather than providing them with copies of the same, even where it would be cost effective to provide copies.

b) How the proposed amendment resolves the problem:

The proposed amendment to subsection 48(2) of the provincial Act and proposed repeal of subsection 48(3) of the provincialAct would bring section 48 in line with section 37 of the municipal Act and ensure that both Acts are administered consistently.

CLARIFICATION XIII

Present section:

52.-(11) A person giving a statement or answer in the course of an inquiry before the Commissioner shall be informed by the Commissioner of his or her right to object to answer any question under section 5 of the Canada Evidence Act.

Proposed amendment:

Subsection 52(11) of the Act should be repealed.

Reason for the proposed repeal of subsection 52(11):

a) Nature of the problem to be addressed by the proposed repeal:

The purpose of subsection 52(11) of the Act is not clear. In our view, this subsection does not appear to be necessary in light of the protection afforded to a witness by section 13 of the Canadian Charter of Rights and Freedoms because, as a result of section 13 of the Charter, a witness need no longer claim protection pursuant to section 5 of the Canada Evidence Act.

Reasoning:

Section 5 of the Canada Evidence Act provides as follows:

(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence.

The Report of the Commission on Freedom of Information and Individual Privacy/1980 entitled “Public Government for Private People” does not discuss the inclusion of subsection 52(11) of the Act. Similarly, the clause by clause review of Bill 34 by the Standing Committee on the Legislative Assembly sheds no light on the rationale for the inclusion of this provision.

Although no guidance can be found in the legislative history of the Act, presumably, the framers of the Act thought that the provision was necessary to protect a person who is giving information in the course of an inquiry. Another possible purpose of the provision is to assist the Commissioner in obtaining information, since a person will be more willing to disclose information if he or she is afforded the protection set out in subsection 52(11) of the Act.

Although the purpose of subsection 52(11) is to protect the privacy of witnesses, this particular safeguard is no longer necessary in light of section 13 of the Charter. Section 13 of the Charter provides:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Section 13 of the Charter does not give a witness the right to refuse to answer a question on the ground that the answer might incriminate him or her. That right, which existed at common law, was abolished in Canada in 1893 by what is now subsection 5(1) of the Canada Evidence Act. Section 13 of the Charter does, however, give the witness “the right not to have any incriminating evidence so used to incriminate that witness in any other proceedings, except in a prosecution for penury or for the giving of contradictory evidence.”

It appears that section 13 of the Charter incorporates the principles contained in subsection 5(2) of the Canada Evidence Act, and goes one step further. It is no longer necessary to object at the earlier proceeding that the evidence may be incriminating. Court decisions interpreting section 13 of the Charter support this conclusion. (See Dubois v. The Queen, [1985] 2 S.C.R. 350 (Supreme Court of Canada), Re Donald and Law Society of British Columbia, (1983), 2 D.L.R. (4th) 385 (British Columbia Court of Appeal), R.v. Altseimer, (1982), 38 O.R. (2d) 783, 787 (Ont. C.A.))

The rationale for initially including provisions of the nature of subsection 5(2) of the Canada Evidence Act in the federal and provincial evidence acts was to override the common law, and to require witnesses to answer questions while still protecting their right not to have such information used against them in the future. It is perhaps for this historical reason that sections akin to subsection 5(2) of the Canada Evidence Act are still contained in the provincial acts. [See for example, subsection 9(2) of the Evidence Act, R.S.O. 1980, c. 145]

It is likely that subsection 52(11) of the Act refers to subsection 5(2) of the Canada Evidence Act as a result of tradition. Prior to the enactment of the Charter, it was logical to include reference to the Canada Evidence Act in a provincial statute which aimed at protecting witnesses from the use of incriminating evidence against them in future criminal proceedings. The OntarioEvidence Act only applies to civil proceedings. However, this historical reason is not sufficient to warrant the continued inclusion of subsection 52(11) of the Act.

b) How the proposed repeal of subsection 52(11) will resolve the problem:

Since subsection 52(11) appears to be redundant, it should not be included in the Act. It appears that the repeal of this provision will have no substantive effect on the rights of a person giving a statement or answer in the course of an inquiry before the Commissioner. As a result of section 13 of the Canadian Charter of Rights and Freedoms, it appears that a witness need no longer claim protection as he or she previously had to pursuant to section 5 of the Canada Evidence Act, in order to prevent the use of incriminatory evidence in other proceedings.

CLARIFICATION XIV

Present section:

54.-(2) Where the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner shall not order the head to disclose the record or part.

Proposed amendment:

54.-(2) Where the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner shall not order the head to disclose the record or part.

(3) Notwithstanding subsection (2), where the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner may review the head’s exercise of discretion to determine whether it has been exercised within proper limits and on proper principles.

[The present subsections 54(3) and (4) would become subsections 54(4) and (5).]

Reason for the proposed amendment:

a) Source of uncertainty:

While it is clear from a review of subsection 54(2) that, in the case of discretionary exemptions, the Commissioner cannot exercise the discretion in the place of the head of an institution and order disclosure, it is not equally clear whether the Commissioner can send the matter back to the institution asking it to reconsider the exercise of its discretion in the particular case.

b) How the proposed amendment resolves the problem:

The proposed amendment resolves an important matter of uncertainty. The proposed amendment reflects the position that the Commissioner has taken in his Orders to date. He has held that, while he may not have the authority to substitute his decision for that of the head, he has a duty under the Act to review the head’s exercise of discretion, in order to ensure that it is exercised within proper limits and on proper principles, i.e., with full appreciation of the facts of the case and having regard to the objects and purposes of the Act. interim Order No. 135; Order No. 72)

The Commissioner’s interpretation is consistent with the general intent and purpose of the Act, as expressed in subsection 1(a), which includes a clear intention by the Legislature to provide a means whereby decisions “on the disclosure of government information should be reviewed independently of government.” (subsection l(a)(iii))

In each case, at the conclusion of his inquiry under section 52 of the Act, the Commissioner is, as a result of the Commissioner’s inquiry, in a position where he or she has the necessary information and material to make a determination as to whether the discretion given to the head has been exercised in full appreciation of all the facts of the case and having regard to the objects and purposes of the Act. Accordingly, the Commissioner is able to make a determination as to whether the head exercised his or her discretion within proper limits and on proper principles.

CLARIFICATION XV

Present section:

57.-(1) Where no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay,

(a) a search charge for every hour of manual search required in excess of two hours to locate a record;

(c) computer and other costs incurred in locating, retrieving, processing and copying a record; and

Proposed amendment:

57.-(1) Where no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay costs no greater than the following:

(a) a search charge for every hour of manual search required in excess of two hours to locate the record;

(c) computer and other costs incurred in locating, retrieving, processing and copying the record; and

Reason for the proposed amendments:

a) Sources of uncertainty:

First of all, it is not clear from a review of section 57 as to whether the costs listed in subsections 57(1) are the only costs that a head of an institution may require the requester to pay.

Secondly, subsections 57(1)(a) and (c) refer to “a record”. It appears that this is a reference to the record that is the subject matter of the requester’s access request. However, the reference to “a record” may result in some confusion.

b) How the proposed amendments resolve the problems:

The proposed amendments to subsection 57(1) of the Act and section 5 of Ontario Regulation 532/87 address the above-noted sources of uncertainty. By specifically providing that a head may not require a person who seeks access to a record to pay costs greater than the amounts specified in subsection 57(1) and section 5 of Regulation 532/87, the proposed amendments ensure that neither subsection 57(1) of the Act or section 5 of Regulation 532/87 can be used as a means to deter requests for access to records. In Order No. 2, the Commissioner suggested that the amounts specified in section 5 of Regulation 532/87 should be viewed as maximums. He stated that it was important that an institution make every effort to prevent costs from being used as a deterrent to the use of the Act.

Secondly, by changing the present reference in subsection 57(1) from “a record” to “the record”, the proposed amendment confirms that the costs that a person who seeks access to a record is required pay are based on the time that it takes for an institution to manually locate the requested record (not any other record), and the computer and other costs incurred by the institution in locating, retrieving, processing and copying the requested record.

CLARIFICATION XVI

Present sections:

4.-(4) The Commissioner shall appoint one or two officers of his or her staff to be Assistant Commissioners.

8.-(1) Subject to the approval of the Lieutenant Governor in Council, the Commissioner may employ mediators and any otherofficers and employees the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions of employment.

56.-(1) The Commissioner may in writing delegate a power or duty granted to or vested in the Commissioner to an officer or officers employed by the Commissioner, except the power to delegate under this section, subject to such limitations, restrictions and requirements as the Commissioner may set out in the delegation.

62.-(1) A head may in writing delegate a power or duty granted or vested in the head to an officer or officers of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation.

Proposed amendments:

4.-(4) The Commissioner shall appoint one or two of his or her employees to be Assistant Commissioners.

8.-(1) Subject to the approval of the Lieutenant Governor in Council, the Commissioner may employ such staff as the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions of employment.

56.-(1) The Commissioner may in writing delegate a power or duty granted to or vested in the Commissioner to any person,except the power to delegate under this section, subject to such limitations, restrictions, conditions and requirements as the Commissioner may set out in the delegation .

62.-(1) A head may in writing delegate a power or duty granted or vested in the head to an employee or employees of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation.

Reasons for the proposed amendments:

a) Nature of the problems to be addressed by the proposed amendments:

First of all, subsections 4(4), 8(1), 56(1) and 62(1) make reference to “an officer” or “officers”. The distinction between an “officer” and an “employee” made in the Act by virtue of these provisions is difficult to understand and is confusing. This distinction among the staff of the Commissioner does not appear to serve any purpose.

Secondly, the specific reference to “mediators” in subsection 8(1) of the Act appears to be redundant. There appears to be no need for a specific reference in subsection 8(1) to “mediators”, since they would be part of the Commissioner’s staff and they would be considered a sub-set of the category of his employees.

The distinction between an “officer” and an “employee”

The distinction between an “officer” and an “employee” has a specific meaning in the context of corporate law. In that context, officers of a corporation play a defined role and have specific responsibilities and obligations under the corporations Acts.

In the context of administrative law, generally and in the context of subsections 4(4), 8(1), 56(1) and 62(1) of the Actspecifically, there does not appear to be any reason for the distinction among the staff of the Commissioner or an institution.

The term “officer” is defined in the Blacks Law Dictionary, West Publishing Company, 5th edition, 1979, as follows:

Person holding office of trust, command or authority in corporation, government, armed services, or other institution or organization.

In determining whether one is an “officer” or “employee”, important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only by agreement; whether it is created by appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a sum agreed upon by the contract of hiring.

Based on this definition, within the context of the Office of the Commissioner, it is difficult to draw a definitive line between those members of the Commissioner’s staff who may be classified as “officers” and those who are “employees”. Although it is true that some positions in the Office of the Commissioner carry a greater degree of responsibility than other positions, the incorporation of the concept of “officers”, which has been entrenched in the context of corporate law, and the attempt to apply it in the context of the Commissioner’s organization makes no sense.

It may be that the distinction made in subsections 4(4), 8(1), 56(1) and 62(1) of the Act among the Commissioner’s staff was a result of an oversight in drafting. According to a representative of the Legislative Counsel Services, Ministry of the Attorney General, the distinction between officers and employees, although of importance in the area of corporate law, is not applicable in other areas. According to the representative, when drafting current legislation, Legislative Counsel are trying to avoid the use of the term “officers” and only to use the term “employees”, and in her view the distinction made in the Act between ”officers” and “employees” was the result of an oversight in drafting.

b) How the proposed amendments will resolve the problems:

The proposed amendments to subsections 4(4), 8(1), 56(1) and 62(1) will eliminate the artificial distinction among the Commissioner’s staff between officers and employees. The removal of the reference to officers in these provisions will have no substantive effect, since it is merely a correction of an oversight in drafting and is consistent with the trend in legislative drafting away from the use of such terms for merely historical reasons.

The additional proposed amendment to subsection 8(1), i.e., the removal of the specific reference to “mediators”, will eliminate a superfluous term. Since there does not appear to be any reason for the specific reference to “mediators” in subsection 8(1), the removal of the term will not have any substantive effect.

CLARIFICATION XVII

Present section:

65.-(2) This Act does not apply to a record in respect of a patient in a psychiatric facility as defined by clause l(p) of the Mental Health Act, where the record, …

Proposed amendment:

65.-(2) This Act does not apply to a record in the custody or under the control of an institution in respect of a patient in a psychiatric facility as defined by clause l(p) of the Mental Health Act, where the record, …

Reason for the proposed amendment:

a) Source of uncertainty:

Subsection 65(2) is confusing. Since the Act does not cover all hospitals in the province that have psychiatric facilities, the provision when speaking about records is clearly not referring to records in the custody or control of hospitals that have psychiatric facilities which are not covered by the Act. It could only be referring to records relating to a patient in a psychiatric facility that are in the custody or under the control of an institution, as defined under subsection 2(1) of the Act.

b) How the proposed amendment resolves the problem:

The proposed amendment removes any confusion. It makes explicit the fact that subsection 65(2) refers to records relating to a patient in a psychiatric facility that are in the custody or under the control of an institution, as defined under subsection 2(1) of the Act.

POLICY

SUMMARY: POLICY

A “policy change” is a change that affects substantive rights. It may affect the Commissioner’s jurisdiction, duties or powers, or it may result in a change in a course or method of action which will have an affect on present and future decisions.

I. 4.-(3) The Commissioner shall hold office for a term of seven years and may be reappointed for a further term of seven years, but is removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly.

II. 4.-(4) The Commissioner may appoint one or more officers of his staff to be Assistant Commissioners.

III. 6.-(1) The Commissioner shall be paid a salary equal to the salary of a judge of the Ontario Court of Justice (General Division), other than the Chief Justice or the Associate Chief Justice of that Court.

(2) The salary of the Commissioner shall be charged to and paid out of the Consolidated Revenue Fund.

or

6.-(1) The Commissioner shall be paid a salary within the highest range of salaries paid to deputy ministers in the Ontario civil service and is entitled to the privileges of office of a senior deputy minister.

(2) The salary of the Commissioner, within the salary range referred to in subsection (1), shall be determined and reviewed annually by the Board.

“Board” means the Board of Internal Economy referred to in section 84 of the Legislative Assembly Act;

(3) The salary of the Commissioner shall be charged to and paid out of the Consolidated Revenue Fund.

IV. 4a. Before commencing the duties of his or her Office, the Commissioner shall take an oath, to be administered by the Speaker of the Assembly, that he or she will faithfully and impartially exercise the functions of his or her Office and that subject to this Act, he or she will not disclose any information received by him or her as Commissioner.

8a.-(1) Every employee of the Commissioner shall take an oath of secrecy upon becoming so employed.

(2) A breach of oath of secrecy is grounds for dismissal.

V. 2.-(1) In this Act,

“Board” means the Board of Internal Economy referred to in section 84 of the Legislative Assembly Act;

8.-(1) Subject to the approval of the Board, the Commissioner may employ mediators and any other officers and employees the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions.

VI. 8b.-(1) The Commissioner may make orders and rules for the conduct of the internal business of his or her office and, after a hearing, may suspend, demote or dismiss any employee of his or her office for cause.

(2) The provisions of the Public Service Act and the regulation thereunder that apply in relation to suspension from employment pending an investigation and in relation to a hearing by a deputy minister or his delegate as to cause for dismissal, other than as to notice to the Civil Service Commission, apply with necessary modifications where the Commissioner is of the opinion that there may exist cause for the suspension without pay, demotion or dismissal of an employee of the Office of the Commissioner, and, for the purpose, the Commissioner shall be deemed to be a deputy minister.

(3) A decision of the Commissioner to demote, suspend or dismiss an employee may be appealed by the employee, within fourteen days after the decision has been communicated to him or her, to the Public Service Grievance Board established under the Public Service Act.

(4) The Public Service Grievance Board may hear and dispose of an appeal under this subsection and the provisions of the regulation under the Public Service Act that apply in relation to a grievance for dismissal apply with necessary modifications to an appeal under this subsection, and, for the purpose, the Commissioner shall be deemed to be a deputy minister and the decision of the Public Service Grievance Settlement Board is final and the Public Service Grievance Board shall report its decision and reasons in writing to the Commissioner and to the applicant.

VII. 21.-(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(i) consists of an individual’s name together with the individual’s address or telephone number or both and it is requested for mailing list purposes.

VIII. 24a.-(1) Notwithstanding any provision in any Act, where any correspondence sent by,

(a) an inmate of any provincial correctional institution;

(b) a child who is held in a place of open custody under section 91 of the Child and Family Services Act, 1984;

(c) a person held in a place of secure or open custody designated under section 24 f the Young Offenders Act(Canada); or

(d) a patient in a provincial psychiatric facility,

is addressed to the Commissioner it shall be immediately forwarded, unopened, to the Commissioner by the person for the time being in charge of the institution, training school, place of secure or open custody or facility.

(2) The person for the time being in charge of an institution, training school, place of secure or open custody or facility, as the case may be, shall immediately forward, unopened, any correspondence sent by the Commissioner to a person described in clauses (1)(a) to (d).

[*Note: Companion amendments to the Ministry of Correctional Services Act and Regulation 649 under that Act, the Child and Family Services Act, 1984 and the Mental Health Act are also being proposed.]

IX. 29.-(5) Where a head fails to give the notice required under section 26 or subsection 28(7) concerning a record, the Commissioner may, on appeal, require the head to waive payment of all or any part of an amount required to be paid by the person who made the request for access to the record.

X. 43a. An institution shall ensure that personal information in its custody and under its control is protected by such security safeguards that are reasonable in the circumstances to prevent loss or unauthorized access, use, modification or disclosure.

XI. 50.-(2) An appeal under subsection (1) shall be made within thirty days after notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

(2a) Prior to, or after, the expiry of the thirty day period referred to in subsection (2), and where special circumstances exist, the Commissioner may extend the time for filing the appeal.

XII. 52.-(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site where it would not be reasonably practicable to reproduce the record or a part thereof by reason of its length or nature.

XIII. 54a. The Commissioner has exclusive jurisdiction to exercise the powers conferred upon him or her by or under this Act and to determine all questions of fact or law that arise in any matter before him or her and the action or decision of the Commissioner thereon is final and conclusive for all purposes.

XIV. 54b. The Commissioner may at any time if he or she considers it advisable to do so, reconsider a decision or order made by him or her and vary and revoke the decision or order.

XV. 59. The Commissioner may,

(ia) conduct a review of the access procedures of an institution or a review of records of personal information in the custody or under the control of an institution for the purpose of ascertaining whether an institution is complying with the requirements of this Act.

(iia) investigate an act or practice of an institution that may breach a privacy principle of this Act.

59a.-(1) For the purpose of the performance of the Commissioner’s function under subsection 59(ia) or subsection 59(iia) of the Act, an employee of the Commissioner, authorized by the Commissioner for the purpose of this section may, at any reasonable time of the day, after notifying the head of the institution of his or her purpose, enter the premises occupied by the institution and inspect any records that are kept at those premises and any systems and procedures that are in place at those premises and that are relevant to the performance of the function.

(2) The head shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of his or her function under subsection (1).

XVI. 59. The Commissioner may,

(b) after hearing the head, order an institution to,

(i) cease a use, disclosure, retention or collection practice, and

(ii) destroy collections of personal information,

that contravene this Act;

DETAILED DISCUSSION: POLICY

A “policy change” is a change that affects substantive rights. It may affect the Commissioner’s jurisdiction, duties or powers, or it may result in a change in a course or method of action which will have an affect on present and future decisions.

POLICY CHANGE I

Present section:

4.-(3) The Commissioner shall hold office for a term of five years and may be reappointed for a further term or terms,but is removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly.

Proposed amendment:

4.-(3) The Commissioner shall hold office for a term of seven years and may be reappointed for a further term of seven years, but is removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

The current five year term with the provision for re-appointment does not, in our view, adequately assure the independence of the Commissioner. The term is not sufficiently long to alleviate concerns that the actions of the Commissioner will, during his or her term in office, be directed towards the goal of re-appointment (since the Commissioner has no assurance that he or she will be re-appointed). In addition, the five year term may not provide sufficient job security to attract the most qualified candidates.

Independence of the Commissioner

As the Williams Commission pointed out in its Report on Freedom of Information and Individual Privacy/1980 entitled “Public Government for Private People” (Volume 2, Chapter 15, page 357), it is essential to the effectiveness of a freedom of information scheme that the appeal mechanism which is available to the public, is perceived as being truly independent of the government. The Act recognizes this in subsection l(a)(iii). Subsection l(a)(iii) provides:

(iii) decisions on the disclosure of government information should be reviewed independently of government;

Since the Commissioner is the key to this appeal mechanism, it is necessary that the Commissioner is independent and is seen to be independent from the government. He or she should be free and be perceived to be free from political pressure from the governing party. Such political pressure or the perception thereof would undermine the public’s confidence in the Commissioner’s ability to render impartial decisions.

Quality of the appointment

As Robert Macaulay states in his recent Report prepared for the Management Board of Cabinet entitled Directions – Review of Ontario’s Regulatory Agencies, September 1989, “tenure is a very significant reality which affects not only the appointment procedure but also the quality of the candidates who may consider an appointment” (page 8-17). Few persons of high calibre and with successful careers can give up their security and perhaps move out of town to accept a five year appointment.

b) Terms of other Officers of the Legislature performing a similar review function:

It is significant to note that the term of office of the Ombudsman is ten years. (Ombudsman Act, subsection 4(1)) The Ombudsman, like the Commissioner, is “independent” of the government and is accountable to the Legislature. The Ombudsman, like the Commissioner, provides an independent review of decisions of governmental agencies.

c) Other jurisdictions:

Most of the jurisdictions which have freedom of information and protection of privacy legislation that requires the appointment of an Information and/or Privacy Commissioner provide, in their relevant legislation, for a term of office for the Commissioner which is longer than five years.

Pursuant to the federal Access of Information Act and the federal Privacy Act, the Information and Privacy Commissioners hold office for a term of seven years. They may be re-appointed for one more term of seven years. (See Access to Information Act,R.S.C. 1985, c. A-1, subsections 54(2) and 54(3) and Privacy Act, R.S.C. 1985, c. P-21, subsections 53(2) and (3))

Pursuant to Quebec’s An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, S.Q. 1982, c. 30, all members of the Commission hold office for a term of five years and can be reappointed for two consecutive terms (section 105).

Pursuant to the Australian Privacy Act 1988, the Privacy Commissioner holds office for a term of seven years and is eligible for re-appointment. (See Privacy Act 1988, S.A. No. 119, section 20)

While the above-mentioned jurisdictions also provide for the possibility of reappointment and by doing so raise the concern that the Commissioner’s actions during his or her term in office may be directed towards the goal of re-appointment, this concern is alleviated to some extent because of the longer term.

d) How the proposed and alternate amendments resolve the problem:

i) The proposed amendment

The proposed amendment suggests that a longer term (7 years) would enhance the independence and job security of the Information and Privacy Commissioner. While it provides for the possibility of reappointment and by doing so raises the concern that the Commissioner’s actions during his or her term in Office may be directed towards the goal of re-appointment, this concern is alleviated because of the length of the term.

Although concerns may be expressed that a longer term is problematic where the Commissioner does not perform as anticipated, it should be noted that safeguards are present in the Act. In particular, subsection 4(3) of the Act provides that the Commissioner is “removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly”. Thus, the Commissioner is removable at any time if he or she is unable or neglects to perform the functions and duties assigned to him or her under the Act.

POLICY CHANGE II

Present section:

4.-(4) The Commissioner shall appoint one or two officers of his or her staff to be Assistant Commissioners.

Proposed amendment:

4.-(4) The Commissioner may appoint one or more officers of his or her staff to be Assistant Commissioners.

Reason for the proposed amendment:

a) Nature of the problems to be addressed by the proposed amendment:

First of all, despite the fact that subsection 4(4) of the Act has been amended by virtue of subsection 3(5) of Bill 52 so that, as of January 1, 1991, the Commissioner has more flexibility in deciding the structure of his Office, (i.e., he or she will be able to decide on the appropriate title to give the Assistant Commissioners and whether to appoint one or two Assistant Commissioners), the requirements of subsection 4(4), as amended, continue to impose some restrictions.

Pursuant to the requirements of subsection 4(4) as amended by Bill 52, the Commissioner will be unable to appoint more than two Assistant Commissioners and he or she must appoint at least one Assistant Commissioner. It is our view that the Commissioner should be free to set up his or her Office in such a fashion as the Commissioner sees fit and to retain the kind of staff the Commissioner thinks is necessary and appropriate. The Commissioner is the best person to evaluate the demand for his or her services and to determine the structure which would best meet the demand. For example, with the expansion of the Commissioner’s jurisdiction to cover municipalities, he or she may consider it appropriate to appoint more than two Assistant Commissioners.

The purpose of subsection 4(4)

The legislative history of subsection 4(4) of the Act sheds some light on the purpose of the provision. Subsection 4(4) of Bill 34, at first reading, stated as follows:

The Commissioner may appoint an officer of his or her staff to be Assistant Information and Privacy Commissioner.(emphasis added)

The then-Attorney General, who was the Minister responsible for introducing the legislation, commented on the intent of the provision as follows:

The purpose of 4(4) is to create a statutory officer who can perform his duties if for any reason he (referring to the Commissioner) is unavailable in the short term. It is really to create a deputy, rather than to divide up the work.

There is a lot to be said for trying to lay down an administrative framework in advance, but I would prefer to let the Commissioner decide that because I think he is going to learn in very short order a lot about his responsibilities that we cannot begin to know. (Wednesday June 25, 1985)

When the Bill was discussed by the Standing Committee on the Legislative Assembly, in its clause by clause review of the Bill, on March 24, 1987, Evelyn Gigantes, an NDP caucus member at the time, proposed that subsection 4(4) as set out in Bill 34 at first reading be amended. She proposed that the provision provide for the mandatory appointment of an Assistant Information Commissioner and an Assistant Privacy Commissioner. The wording that she proposed is the wording that was found in subsection 4(4) up to January 1, 1991:

(4) The Commissioner shall appoint an officer of his or her staff to be Assistant Commissioner and another officer of his or her staff to be Assistant Privacy Commissioner.

The Attorney General opposed Ms. Gigantes’ proposal by responding as follows:

“…I would prefer that the power, which is the Commissioner’s right now, be left to him to exercise….I think the Commissioner when he is appointed should take administrative responsibility for his system. If I were the Commissioner, I would want someone in charge of privacy and someone in charge of information. But if you compel them to have them, you then build in competing powers in the system, which is going to make the Commissioner’s job tough.

Notwithstanding the Attorney General’s objections, Ms. Gigantes’ proposal carried and was adopted.

This wording however, has been repealed, pursuant to subsection 3(5) of Bill 52 – the Municipal Freedom of Information Statute Law Amendment Act, 1989 effective January 1, 1991. The substituted wording is as follows:

(4) The Commissioner shall appoint one or two officers of his or her staff to be Assistant Commissioners.

The discussions in the Legislative Assembly and before the Standing Committee on the Administration of Justice, prior to the enactment of Bill 52, did not include a discussion of the repeal and substitution of subsection 4(4). Bill 52 was viewed primarily as a housekeeping measure, therefore, there was little discussion of its content. Presumably, it was recognized that the substituted wording would allow the Commissioner more control over the administration of the Office.

b) How the proposed amendment resolves the problems:

The proposed amendment by giving the Commissioner the power to decide whether or not he or she wants to appoint an Assistant Commissioner, and when, and the power to decide on the number of Assistant Commissioners, would increase the Commissioner’s flexibility in structuring the Office.

POLICY CHANGE III

Present section:

6.-(1) The Commissioner shall be paid a salary to be fixed by the Lieutenant Governor in Council.

Proposed amendment:

6.-(1) The Commissioner shall be paid a salary equal to the salary of a judge of the Ontario Court of Justice (General Division), other than the Chief Justice or the Associate Chief Justice of that Court.

(2) The salary of the Commissioner shall be charged to and paid out of the Consolidated Revenue Fund.

Alternative amendment:

6.-(1) The Commissioner shall be paid a salary within the highest range of salaries paid to deputy ministers in the Ontario civil service and is entitled to the privileges of office of a senior deputy minister.

(2) The salary of the Commissioner, within the salary range referred to in subsection (1), shall be determined and reviewed annually by the Board.

“Board” means the Board of Internal Economy referred to in section 84 of the Legislative Assembly Act;

(3) The salary of the Commissioner shall be charged to and paid out of the Consolidated Revenue Fund.

Reason for the proposed amendment:

a) Nature of the problems to be addressed by the proposed amendment:

First of all, the present subsection 6(1) states that the salary of the Commissioner is to be fixed by the Lieutenant Governor in Council. While subsection 6(2) provides that the salary of the Commissioner cannot be reduced except on the address of the Assembly, subsection 6(1) is still problematic.

In times of rising inflation, no increase in salary in effect amounts to a reduction in the amount of a person’s salary in real terms. Thus, although the Lieutenant Governor in Council does not have the power to reduce the Commissioner’s salary except on the address of the Assembly, it has the power to review the Commissioner’s salary to determine whether increases will be given. Through this power, the Lieutenant Governor in Council could or may be perceived to exert influence over the Commissioner, overtly or subtly.

Accordingly, the present section could undermine the public’s confidence in the Commissioner’s ability to render impartial decisions. It is essential to the effective execution of the Commissioner’s duties that he or she be perceived by the public as being truly independent of the government.

Secondly, there are no guidelines in section 6 or in the Act concerning the nature of the salary of Commissioner, (i.e., how his or her salary is to be determined and when the salary is to be reviewed).

The uncertainty caused by the lack of guidelines, again, reduces the independence of the Commissioner who may fear that an unpopular decision may effect the determination of salary.

The uncertainty could affect the quality of candidates who may consider an appointment to the position of Commissioner. Few persons of high calibre and with successful careers are likely to accept an appointment to a position which does not provide for future increases in salary.

The role that salary plays in ensuring independence has been discussed frequently with reference to judicial independence. [See for example, T.G. Zuber, Report of the Ontario Courts Inquiry, Toronto: Queen’s Printer, 1987, at pages 142-3 and P.W. Hogg, Constitutional Law of Canada, 2nd Edition, Toronto: The Carswell Company Limited, 1985, at pages 136-7]

One of the more recent discussions can be found in The Report of the Ontario Provincial Courts Committee, eds. Gordon F. Henderson, Mary Eberts and William C. Hamilton (Toronto: Queen’s Printer, 1988). The Report discusses the relationship between salary and independence (at pages 47-63). The Report emphasizes that there must be some method of determining judicial salary and increases which is independent from arbitrary interference. In addition, the Report recognizes the role that salary plays in ensuring that suitable candidates may be attracted. It is our submission that the same concerns are applicable to a determination of the salary of the Commissioner.

b) Salaries of other Officers of the Legislature:

The Ombudsman Act, the Election Act, 1984 and the Members’ Conflict of Interest Act, 1988 each contain the same provision as found in subsection 6(1) of the Act, i.e., that the salary of the Ombudsman, the Chief Election Officer or the Conflict of Interest Commissioner, like that of the Information and Privacy Commissioner, “shall be fixed by the Lieutenant Governor in Council”. The provision in the Audit Act, on the other hand, dealing with the salary of the Provincial Auditor, is useful as a model.

Section 5 of the Audit Act, first of all, deals with the concern with respect to the independence of an Officer of the Legislature by giving to the Board of Internal Economy, and not the Lieutenant Governor in Council the power to determine and review the salary of the Provincial Auditor.

Secondly, it eliminates the uncertainty caused by a lack of guidelines concerning the nature of the salary, (i.e., how salary is to be determined and when it is to be reviewed), by setting out a mechanism in the Act for the determination and review of the salary of the Auditor.

Section 5 of the Audit Act provides as follows:

5.-(1) The Auditor shall be paid a salary within the highest range of salaries paid to deputy ministers in the Ontario civil service and is entitled to the privileges of office of a senior deputy minister.

(2) The salary of the Auditor, within the salary range referred to in subsection (1), shall be determined and reviewed annually by the Board.

(3) The salary of the Auditor shall be charged to and paid out of the Consolidated Revenue Fund.

“Board” is defined in subsection l(d) of the Audit Act as the Board of Internal Economy referred to in section 84 of theLegislative Assembly Act R.S.O. 1980, c. 73.

Subsection 84 of the Legislative Assembly Act sets out the composition of the Board of Internal Economy:

84.-(1) There shall be a Board of Internal Economy composed of,

(a) the Speaker, who shall be the chairman;

(b) three commissioners appointed by the Lieutenant Governor in Council from among the members of the Executive Council; and

(c) three commissioners appointed,

(i) one from the caucus of the Government, by that caucus,

(ii) one from the caucus of the Official Opposition, by that caucus, and

(iii) one from the caucus of the party having the third largest membership in the Assembly other than a party referred to in subclauses (i) and (ii), by that caucus,

and the name of each person appointed shall be communicated to the Speaker within ten days after being appointed.

c) Other jurisdictions:

(1) Federal

Unlike subsection 6(1) of the Act, subsection 55(2) of the federal Access to Information Act and subsection 54(2) of the federalPrivacy Act provide a mechanism for determining and reviewing the salaries of the Access Commissioner and the Privacy Commissioner, and the salaries are not fixed by the Governor in Council:

55. (2) The Information Commissioner shall be paid a salary equal to the salary of a judge of the Federal Court of Canada, other than the Chief Justice or the Associate Chief Justice of that Court, and is entitled to be paid reasonable travel and living expenses incurred in the performance of duties under this or any other Act of Parliament.

The salaries of the federal Access and Privacy Commissioners are reviewed, automatically, every time salaries of judges of the Federal Court of Canada are reviewed .

(2) Quebec

Like the federal Act and unlike the Ontario Act, Quebec’s An Act respecting Access to documents held by public bodies and the Protection of personal information provides for an independent determination of the remuneration of members of the Commission D’Access A L’Information. Article 104 of the Quebec Act provides for the determination of the remuneration, social benefits and other conditions of employment of members of the Commission by a resolution of the National Assembly approved by not less than two-thirds of its members.

The Quebec Act, like the Ontario Act, is deficient in that it does not provide a specific guideline for the determination of the salary.

d) How the proposed and alternate amendments will resolve the problems:

i) The proposed amendment

The proposed amendment favours the method adopted in the federal Acts. The federal Acts set out a mechanism for the determination and review of the salary of the Commissioner by comparing the salary to that of a judge. They eliminate the problems caused by having the Cabinet responsible for determining the salary and the uncertainty caused by not having salary guidelines in the Act.

The proposed amendment compares the salary of the Commissioner to the salary of a judge of the Ontario Court of Justice (General Division). Pursuant to section 25 of the Judges Act, R.S., c. J-1, salaries of the judges of the Ontario Court of Justice (General Division) are reviewed annually. The formula for adjustment is set out in section 25.

The suggested codification of what is in fact the case, (i.e., that the salary of the Commissioner is to be charged to and paid out of the Consolidated Revenue Fund), is symbolic. It will reinforce the public’s perception of the independence of the Commissioner.

ii) Alternate amendment

The alternate amendment is modeled on section 5 of the Audit Act. Accordingly, it not only sets out a mechanism for the determination of the range of salary of the Commissioner, (i.e., that the Commissioner shall be paid a salary within the highest range of salaries paid to deputy ministers in the Ontario civil service), it also provides that the precise salary will be determined and reviewed by the Board of Internal Economy.

Similarly, like section 5 of the Audit Act in the case of the Auditor, the alternate amendment codifies what is in fact the case, i.e., that the salary of the Commissioner is to be charged to and paid out of the Consolidated Revenue Fund.

Accordingly, the alternate amendment, like Section 5 of the Audit Act, assures the independence of the Commissioner, who like the Auditor, is an Officer of the Legislature.

POLICY CHANGE IV

Proposed amendments:

4a. Before commencing the duties of his or her Office, the Commissioner shall take an oath, to be administered by the Speaker of the Assembly, that he or she will faithfully and impartially exercise the functions of his or her Office and that subject to this Act, he or she will not disclose any information received by him or her as Commissioner.

8a.-(1) Every employee of the Commissioner shall take an oath of secrecy upon becoming so employed.

(2) A breach of the oath of secrecy is grounds for dismissal.

Reason for the proposed amendments:

a) Nature of the problem to be addressed by the proposed amendment:

The current Act does not provide for the Oath of Secrecy to be administered to the Commissioner and/or the Commissioner’s staff. Due to the sensitive nature of the information or records that the Commissioner and his or her employees review on a daily basis in the performance of their duties, there may be some concern on the part of institutions regarding the disclosure of such information or records to the Office of the Commissioner.

b) Legislation governing other Officers of the Legislature performing a review function:

The Ombudsman Act provides for the Ombudsman to take the Oath of Secrecy (Section 13). In addition, in the last session of the Legislative Assembly, a bill Bill 80 – An Act to amend the Ombudsman Act and the Child and Family Services Act, 1984 – was introduced, which proposed an amendment that would have required the Oath of Secrecy to be administered to employees of the Ombudsman (Section 1). While Bill 80 died on the Order Paper in June 1990, the proposed amendment in the Bill which would have required the Oath of Secrecy to be administered to employees of the Ombudsman provides a useful model.

The Audit Act does not provide for the Provincial Auditor to take the Oath of Secrecy. However, it does require that every employee of the Office of the Auditor, before performing any duty as an employee of the Auditor, shall take an oath of office and secrecy. The wording of the oath of office and secrecy is set out in subsection 21(1) of the Audit Act. Subsection 21(3) requires that a copy of each oath administered to an employee of the Office of the Auditor shall be kept in the file of the employee in the Office of the Auditor.

Similarly, while the Election Act, 1984 does not provide for the Chief Election Officer or the Assistant Election Officer to take the Oath of Secrecy, it does require that every employee of the office of the Chief Election Officer, before performing any duty as such, shall take an oath of office and secrecy. (Section 114)

[While not applicable to Officers of the Legislature and their staff, the Public Service Act, provides that every civil servant shall take an oath of office and secrecy. (Section 10) The wording of the oath is set out in that Act.]

c) Other jurisdictions:

i) Federal

While the federal Access to Information Act and the federal Privacy Act do not require that the Commissioners and persons acting on behalf or under the direction of the Commissioners take a general oath of secrecy at the outset, they contain provisions that address the question. Section 61 of the Access to Information Act, which is virtually identical to section 62 of thePrivacy Act, provides as follows:

61. The Information Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any investigation under this or any other Act of Parliament shall, with respect to access to and the use of such information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of such information.

In addition, section 62 of the Access to Information Act and section 63 of the Privacy Act impose a duty of confidentiality on the Commissioners and persons acting on behalf or under the direction of the Commissioners. Section 62 of the Access to Information Act (which is virtually identical to section 63 of the Privacy Act) provides as follows:

62. Subject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.

ii) Quebec

Quebec’s An Act respecting Access to documents held by public bodies and the Protection of personal information, section 106, provides that all members of the Commission D’Access A L’Information, before entering into office, shall take an oath or solemn affirmation provided in Schedule B of the Quebec Act, before the President of the National Assembly.

However, the Quebec Act does not specifically provide for the oath of secrecy to be administered to employees of the Commission.

d) How the proposed amendments resolve the problem:

As indicated earlier, the current Act does not specifically provide for the Commissioner and the Commissioner’s staff to take the oath of secrecy. Although the Act implicitly requires that the information received and/or reviewed by the Commissioner and his or her employees must be kept confidential, unless the Commissioner is authorized to disclose it under the Act, there are benefits to specifically setting out this requirement in the Act.

A specific requirement in the statute, such as the one proposed, will enhance the confidence that institutions and the public have in the Commissioner. The effect of enhancing confidence in the Commissioner is that the goals of the Act will be better furthered since information will be more readily available.

The institutions could feel more comfortable releasing sensitive information or records to the Office of the Commissioner if there is some assurance that the information or records will be kept confidential and that any breach of confidentiality would be taken seriously.

A requirement in the statute and in particular, in the case of the Commissioner, a requirement that the oath to the Commissioner is to be administered by the Speaker of the Legislative Assembly, will underscore the seriousness with which privacy concerns are taken.

The taking of the oath by the Commissioner and the Commissioner’s staff, will also further the purpose of the Act as set out in subsection l(b):

to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with the right of access to that information.

[Most of the wording in the proposed amendments has been patterned on section 13 of the Ombudsman Act and the amendment which was proposed to the Ombudsman Act – section 1 of Bill 80 – An Act to amend the Ombudsman Act and the Child and Family Services Act, 1984, which was introduced in the last session of the Legislative Assembly and died on the Order Paper. The provisions have been adjusted to make them workable in the context of the Act.]

POLICY CHANGE V

Present section:

8.-(1) Subject to the approval of the Lieutenant Governor in Council, the Commissioner may employ mediators and any other officers and employees the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions.

Proposed amendments:

2.-(1) In this Act,

“Board” means the Board of Internal Economy referred to in section 84 of the Legislative Assembly Act;

8.-(1) Subject to the approval of the Board, the Commissioner may employ mediators and any other officers and employees the Commissioner considers necessary for the efficient operation of the office and may determine their salary and remuneration and terms and conditions.

Reason for the proposed amendments:

a) Nature of the problems to be addressed by the proposed amendment:

First of all, the present wording of subsection 8(1) of the Act makes the Commissioner’s hiring of employees for the Commissioner’s office and his or her determination of their salary and other terms of employment subject to the approval of the Lieutenant Governor in Council.

Through the power to approve the Commissioner’s budget, the government could or may be perceived to exert influence over the Commissioner’s decisions, subtly or overtly. It is necessary for the effective administration of the Act that the Commissioner is not only independent but is also perceived to be independent from the government, whose decisions the Commissioner reviews. Subsection 8(1) as presently worded compromises the independence of the Commissioner.

Secondly, the present wording of subsection 8(1) does not reflect reality. In fact, the Office of the Commissioner submits its budget annually to the Board of Internal Economy for approval. It is the Board of Internal Economy and not the Lieutenant Governor in Council that approves the budget.

b) Other Officers of the Legislature:

Since the wording of subsection 8(1) of the Act was taken from subsection 8(1) of the Ombudsman Act, subsection 8(1) of theOmbudsman Act suffers from the same problem regarding the public’s perception of the independence of the Ombudsman.

However, the relevant provisions governing the operation of the Office of the Provincial Auditor and the Office of the Chief Election Officer in the Audit Act and Election Act, 1984 do not pose the same problems. Like the Commissioner and the Ombudsman, the Provincial Auditor and the Chief Election Officer are also Officers of the Legislature.

Specifically, the relevant provision in the Audit Act – section 20 – provides as follows:

Subject to the approval of the Board and to sections 22, 25 and 26, the Auditor may employ such professional staff and other persons as the Auditor considers necessary for the efficient operation of the Office of the Auditor and may determine the salary of the Assistant Auditor and the salaries and remuneration, which shall be comparable to the salary ranges of similar positions or classifications in the public service of Ontario, and the terms and conditions of employment of the employees of the Office of the Auditor. (emphasis added)

The “Board” is defined in subsection l(d) of the Audit Act as “the Board of Internal Economy referred to in section 84 of theLegislative Assembly Act“.

The relevant provision in the Election Act, 1984 – section 113 – provides as follows:

113.-(1) Subject to the approval of the Board, the Chief Election Officer may employ such persons on his permanent staff as are necessary in the performance of his duties and for the efficient and proper operation of his office and may, for such employees, establish job classifications, and may determine the salary of the Assistant Chief Election Officer and the salaries and remuneration, which shall be comparable to the salary ranges of similar positions or classifications in the public service of Ontario, and the terms and conditions of employment of the employees on the permanent staff of his office and the Chief Election Officer shall present annually to the Board estimates of the sums of money that will be required for these purposes.

(2) The Board shall review and may alter as it considers proper the estimates referred to in subsection (1), and the chairman of the Board shall cause the estimates as altered by the Board to be laid before the Assembly and the Assembly shall refer the estimates laid before it to a committee of the Assembly for review.

(3) The moneys required for the purposes of this section shall be paid out of the moneys appropriated therefore by the Legislature. (emphasis added)

The “Board” is defined in subsection l(l)(c) as “the Board of Internal Economy referred to in section 84 of the Legislative Assembly Act“.

The above quoted provisions in the Audit Act and in the Election Act. 1984 promote the independence of the Provincial Auditor and the Chief Election Officer, both in perception and in fact.

c) How the proposed amendment resolves the problem:

By providing that the Board of Internal Economy and not the Lieutenant Governor in Council must approve of the hiring by the Commissioner of employees and the determination by him or her of the terms and conditions of their employment, the proposed amendment will enhance the independence of the Commissioner. This in turn will promote the public’s confidence in the operation of the office of the Commissioner and the employees who are hired to carry out the responsibilities of the office.

The proposed amendment will also reflect the realities of the operation of the Office of the Commissioner which at present submits its budget annually to the Board of Internal Economy for approval.

POLICY CHANGE VI

Proposed amendment:

8b.-(1) The Commissioner may make orders and rules for the conduct of the internal business of his or her office and, after a hearing, may suspend, demote or dismiss any employee of his or her office for cause.

(2) The provisions of the Public Service Act and the regulation thereunder that apply in relation to suspension from employment pending an investigation and in relation to a hearing by a deputy minister or his delegate as to cause for dismissal, other than as to notice to the Civil Service Commission, apply with necessary modifications where the Commissioner is of the opinion that there may exist cause for the suspension without pay, demotion or dismissal of an employee of the Office of the Commissioner, and, for the purpose, the Commissioner shall be deemed to be a deputy minister.

(3) A decision of the Commissioner to demote, suspend or dismiss an employee may be appealed by the employee, within fourteen days after the decision has been communicated to him or her, to the Public Service Grievance Board established under the Public Service Act.

(4) The Public Service Grievance Board may hear and dispose of an appeal under this subsection and the provisions of the regulation under the Public Service Act that apply in relation to a grievance for dismissal apply with necessary modifications to an appeal under this subsection, and, for the purpose, the Commissioner shall be deemed to be a deputy minister and the decision of the Public Service Grievance Board is final and the Public Service Grievance Board shall report its decision and reasons in writing to the and to the appellant.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

In the event of demotion, suspension or dismissal, employees of the Commissioner do not have recourse to any of the grievance procedures which are available to public servants under the Public Service Act and its regulations.

Furthermore, the Public Service Grievance Board does not have jurisdiction to hear grievances from the employees of the Commissioner by any other route.

While this means that the Commissioner is only required to adhere to the less onerous requirements prescribed by theEmployment Standards Act, and the common law, this also means that members of the provincial Civil Service who leave their jobs to work for the Commissioner, give up their job security. The grievance procedures available to public servants under thePublic Service Act are quite extensive and provide for appeal to the Public Service Grievance Board.

b) Grievance procedures applicable to employees of other Officers of the Legislative Assembly:

(1) The Provincial Auditor

Section 26 of the Audit Act brings employees of the Office of the Provincial Auditor under the conduct, discipline and grievance provisions of the Public Service Act and its regulations.

The wording of the proposed amendment has been taken directly from section 26 of the Audit Act. The only difference in the wording is that the proposed amendment refers to the Commissioner and section 26 of the Audit Act refers to the Auditor.

(2) The Chief Election Officer

The wording of section 116 of the Election Act, 1984 is almost identical to section 26 of the Audit Act. The only difference between section 116 of the Election Act, 1984 and section 26 of the Audit Act is that the former makes reference to the Chief Election Officer rather than to the Auditor.

(3) The Conflict of Interest Commissioner

Pursuant to subsection 10(6) of the Members’ Conflict of Interest Act, 1988, persons who work for the Conflict of Interest Commissioner are employees of the Office of the Assembly.

Employees of the Office of the Assembly are governed by the specific grievance procedure set out in subsections 91a to 91f of the Legislative Assembly Act. The procedure entitles employees to a hearing before a hearing board composed of a chairman (appointed by the Speaker after requesting and considering the views of the chairman of the Public Service Grievance Board), one member representing the Office of the Assembly, and one member representing the employee who required the hearing. The Speaker is required to carry out the recommendation of the hearing board.

(4) The Ombudsman

Not surprisingly, since the wording of Part I of the Ombudsman Act formed the basis of the wording of Part I of the Act, theOmbudsman Act is silent with respect to grievance procedures.

Consequently, in order to enhance the job security of its employees, the Ombudsman has developed its own quite elaborate grievance policy. This policy has been in place since February 1989 and sets out the scope and procedure for grievances for all employees of the Ombudsman.

The policy sets out a list of matters, creates an Employee Relations Committee to provide advocacy and resource assistance throughout the grievance process and sets out a step by step procedure to be followed in the event that an employee wishes to grieve a matter covered by the policy. The procedure allows for the presentation of a formal or informal grievance. In the event that the employee wishes to present the grievance formally, or is unhappy with the informal route, a four-step formal grievance process which culminates in binding arbitration is followed. [See “Administrative Procedures Manual, Office of the Ombudsman – Personnel grievances” dated February 1989]

c) How the proposed amendment resolves the problem:

The proposed amendment introduces into the Act a statutorily prescribed grievance procedure. While this means that the Commissioner will be subject to more onerous requirements when he or she wishes to discipline an employee, because the provision enhances the job security of employees of the Commission, it will strengthen the Commissioner’s ability to attract employees from the Civil Service and elsewhere.

The proposed amendment adopts, as do section 26 of the Audit Act and section 116 of the Election Act, 1984, the procedure set out in the Public Service Act, because the Commissioner can easily opt into the procedure. Opting into the procedure set out in the Public Service Act is more appropriate than opting into the procedure set out in the Legislative Assembly Act, since a grievance under the Legislative Assembly Act necessarily involves an appeal to the Speaker and the formation of a hearing board which is more cumbersome. The procedure under the Public Service Act is well established, it is likely to be less costly (in human and financial resources) and removes the formal resolution of the dispute from the Office of the Commissioner. It presents an option that will be least disruptive to the conduct of the day to day business of the Office of the Commissioner.

POLICY CHANGE VII

Proposed amendment:

21.-(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(i) consists of an individual’s name together with the individual’s address or telephone number or both and it is requested for mailing list purposes.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

There is no specific provision in the Act which prohibits disclosure by an institution of the names and addresses of individuals in its custody or under its control, for purely commercial purposes, or generally deals with the issue of mailing lists. A strict reading of the Act may make available for public access records in the custody or under the control of an institution containing individual, names and addresses, or even lists of names and addresses which departments of the institution maintain for their own administrative purposes.

The disclosure by an institution of the names and addresses of individual’s for mailing list purposes, in particular commercial mailing list purposes, without the consent of these individuals raises privacy concerns. Every individual, has an “interest” in controlling the information held by others about him or her or in “information privacy”. The Canadian Task Force on Privacy and Computers in its Report – Privacy and Computers (1972), Department of Communications and Department of Justice, Canada, 13-14, identified and defined ‘privacy in the information context’ in the following terms:

…is based essentially on a notion of the dignity and integrity of the individual,, and on their (sic) relationship to information about him. This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit…. Competing social, values may require that an individual, disclose certain information to particular authorities under certain circumstances (e.g. census information).

He may decide to make it available in order to obtain certain benefits. He may also share it quite willingly with his intimates. Nevertheless, he has a basic and continuing interest in what happens to this information, and in controlling access to it.

While the Act, in Part III, recognizes and protects this interest by restricting the use and disclosure of information collected by an institution, the protection does not appear to extend so far as allow individuals to exercise some control over the disclosure by the institution of their names and addresses for mailing list purposes and, therefore, over the plethora of unsolicited and unwanted mail.

b) Other jurisdictions:

i) Quebec

There is no express provision in the Quebec’s An Act respecting Access to documents held by public bodies and the Protection of personal information, which addresses the issue of mailing lists. Generally, names and addresses of individuals obtained by public bodies or given to public bodies by individuals themselves constitute personal information, which cannot be disclosed by the public bodies without the consent of the individuals the information concerns (sections 53 and 54 of the Quebec Act).

However, in exceptional cases, requests for names and addresses for mailing list purposes have been dealt with under section 68 of the Quebec Act. Subsection 68(2) provides:

68. A public body may, without the consent of the person concerned, release nominative information

(2) to a person or a body where exceptional circumstances justify doing so.

Any release of nominative information under this section shall be made under the terms of a written agreement.

The terms of a written agreement are provided for under section 70 of the Quebec Act:

70. Every agreement under section 68 or 68.1 must be submitted to the Commission for an opinion. The agreement comes into force on government approval.

The agreement and the Commission’s opinion are tabled in the National Assembly within 15 days of its approval, if the Assembly is in session, or, if it is not sitting, within 15 days after the opening of the next session, or of resumption.

The government may, after obtaining the opinion of the Commission, revoke the agreement at any time.

In summary, the release of personal information by public bodies for mailing list purposes is, generally, not authorized. In exceptional circumstances, (e.g., in order to enable charitable foundations to solicit donations), public bodies have made such information available under subsection 68(2), which requires that the release shall be made pursuant to the terms of a written agreement. The public bodies are able to control the use, security and/or confidentiality of such information by means of the agreement.

ii) Federal

There is no express provision in either the federal Access to Information Act, or the Privacy Act, which addresses the issue of mailing lists. Therefore, the federal Acts are of little assistance in trying to formulate a specific provision in the context of the Ontario Act.

However, the Treasury Board guidelines, which interpret the above-mentioned federal Acts and prescribe government policies to be followed in implementing these Acts, are helpful in this regard. On the issue of addresses and disclosure of the same for mailing list purposes, under Part III – Privacy, at page 58, paragraph 3.10, the Treasury Board of Canada Guide states:

An individual’s home address falls within the definition of personal information in paragraph 3(d) of the Privacy Act. As a general rule, therefore, it is not to be disclosed for mailing list purposes by a government institution. Exceptions are limited to the following situations:

(a) the compilation of mailing lists for distribution to specified government institutions or third parties is the purpose for which the addresses of individuals were collected and the individuals concerned have been so advised by the government institution;

(b) the individuals on the mailing list have consented by voluntarily providing their addresses to facilitate their receipt of information about certain subjects and events;

(c) the transmitting of information contained in mailing lists is authorized by an Act of Parliament or a regulation as provided for in paragraph 8(2)(b) of the Privacy Act; and

(d) in exceptional circumstances only, disclosure of this type of information may be justified under paragraph 8(2)(a), consistent use, or subparagraph 8(2)(m)(ii), individual benefit, or one of the provisions of subsection 8(2).

iii) Australia

Although there is no express provision in the Freedom of Information Act, 1982 which addresses the issue of mailing lists, Australia’s Senate Standing Committee on Legal and Constitutional Affairs, in its Report on the Operation and Administration of the Freedom of Information legislation, December 1987, Parliamentary Paper No. 441/1987, Australian Government Publishing Service, Canberra, appears to indicate that subsection 41(1) of the Freedom of Information Act 1982 has been used to review requests for information for mailing list purposes. This subsection provides as follows:

41. (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

There has been some debate as to whether the test of unreasonableness in subsection 41(1) should depend on the use which is to be made of the document. The Senate Standing Committee was of the view that because subsection 41(1) has as its controlling criterion the “reasonableness” of the consequences of disclosure, in many cases this will turn upon the way in which the requester will use the documents. (at page 191)

Because the Freedom of Information Act 1982 does not confer any power to exact any undertakings or impose conditions concerning the use which can be made of a document obtained under it, the Senate Standing Committee recommended in its Report to Parliament that the courts and the Administrative Appeals Tribunal “be empowered to release material which would otherwise be exempt under section 41 … in reliance upon specific undertakings as to how the documents and the information in these documents will be used.” (at page 192, paragraph 3.21)

iv) California

The Information Practices Act of 1977, (Civil Code Section 1798, et seq.) (Amendments to January 1988) specifically addresses the issue of access to information for mailing list purposes. Under Article 11 Miscellaneous Provisions – Sections 1798.60, 1798.61 and 1798.62 provide as follows:

ARTICLE 11
MISCELLANEOUS PROVISIONS
Release of names and addresses for commercial purposes prohibited.
1798.60 An individual’s name and address may not be distributed for commercial purposes, sold or rented by an agency unless such action is specifically authorized by law.

Release of Names and Addresses of Licensees and Applicants
1798.6 (a) Nothing in this chapter shall prohibit the release of only names and addresses of persons possessing licences to engage in professional occupations or of persons who are registered with, or are holding licences or permits issued by, the State Board of Equalization.

(b) Nothing in this chapter shall prohibit the release of only names and addresses of persons applying for licences to engage in professional occupations for the sole purpose of providing those persons with informational materials relating to available professional educational materials or courses.

Removal of Names from Mailing Lists
1798.62 Upon written request of any individual, any agency which maintains a mailing list shall remove the individual’s name and address from such list, except that such agency need not remove the individual’s name if such name is exclusively used by the agency to directly contact the individual.

The relevant provisions in the California Act, in their approach to the issue of mailing lists for commercial purposes, differ from the approach recommended in Australia and the approach which has been adopted in Quebec. In Australia and Quebec the terms of release will be set out specifically in undertakings or a written agreement. In California, the release is only permitted in the circumstances set out in the legislation.

v) United States

There is no express provision in the U.S. federal Freedom of Information Act, and Privacy Act, which addresses the issue of access to information for mailing list purposes. Section 552(a)(n) of the Privacy Act speaks about mailing lists but only with respect to an agency’s authority to sell or rent an individual’s name and address:

(n) MAILING LISTS. An individual’s name and address may not be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.

The limitation of this provision is that it only restricts the sale or rental of mailing lists and therefore it would not apply to the release of such information pursuant to a request for information.

Aside from this provision, government agencies have relied on provisions in the Freedom of Information Act to resolve requests for access to information for mailing list purposes. Agencies have used a number of exemptions to withhold requests for the names and addresses of individuals for mailing list purposes – Exemption (2) (with respect to requests for access to agency personnel lists) – namely, that the information is “related solely to the internal personnel rules and practices of an agency”, – Exemption 4 (with respect to requests for access to customer and supplier lists) – namely, trade secrets and commercial or financial information obtained from a person and privileged or confidential and – Exemption 6 (with respect to names and addresses of private individuals) – namely, “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”.

Of the exemptions used by agencies to withhold access to the names and addresses of private individuals for mailing list purposes, exemption 6 has been the most popular and the one most often accepted by the courts.

In almost all cases involving requests for compilations of names and addresses of private individuals solely for commercial purposes, the courts, in applying the “clearly unwarranted” test, have identified four factors to be balanced: (a) the requester’s interest in disclosure; (b) the public interest in disclosure; (c) the degree of invasion of personal privacy; and (d) the availability of alternate means of obtaining the requested information. However, they have relied on the requester’s proposed use to deny disclosure. They have taken the position that the requester, in seeking such information for a purely commercial purpose, does not thereby contribute any weight to the public interest side of the balance. [See Wine Hobby USA, Inc. v. United States Internal Rev. Serv., 502 F.2d 133 (1974) (U.S. Court of Appeals, Third Circuit); Minnis v. United States Dept. of Agriculture, 737 F.2d 784 (1984) U.S. Court of Appeals, Ninth Circuit); Multnomah County Medical Soc. v. Scott, 825 F.2d 1410 (1987) (U.S. Court of Appeals, Ninth Circuit) and HMG Marketing Associates v. Freeman, 523 F.Supp. 11 (1980) (U.S.D.C. S.D. New York)]

c) How the amendment resolves the problem:

The proposed amendment provides that the disclosure of an individual’s name and address where it is requested for mailing list purposes is presumed to constitute an unjustified invasion of personal privacy, for the purposes of subsection 21(1)(f) of theAct.

Based on a review of the Commissioner’s Orders interpreting the presumption provided by subsection 21(3), it appears that the implication of this proposed amendment is that it would require compelling circumstances to exist before the name and address of an individual, if requested for mailing list purposes, would be disclosed, since it would take compelling circumstances to outweigh the presumption. In Order No. 20 (Appeal No. 880075, dated October 7, 1988), the leading Order on the interpretation of the presumption provided by subsection 21(3), the Commissioner outlined the situations in which the presumption might be overcome. At page 9 of the Order, the Commissioner outlined the situations as follows:

It is clear that the types of information listed in subsection 21(4) operate to rebut the presumptions set out in subsection 21(3). The application of section 23 of the Act, …, may also result in disclosure. A further instance that is clear arises when a type of information listed under subsection 21(3) also triggers section 11 of the Act, …

I believe that it is premature at this stage of the development of the Act to state that only the application of subsection 21(4), section 23 and section 11 can effectively rebut the presumptions set out in subsection 21(3). It could be that in the unusual case, a combination of circumstances set out in subsection 21(2) might be so compelling as to outweigh a presumption under subsection 21(3). However, in my view, such a case would be extremely unusual.

It does not appear that the proposed amendment would automatically allow an institution to disclose the name and address of an individual for mailing list purposes to charitable foundations, who depend on mail solicitations for funding. The institution would have to apply the test that the Commissioner has established for the rebuttal of the presumption provided by subsection 21(3).

Unlike the legislation at the federal level, Quebec, Australia and United States, the proposed amendment deals directly with the disclosure of personal information for mailing list purposes. The proposed amendment confronts the problem head on – it states that generally such information would not be disclosed.

The proposed amendment extends the protection of an individual’s interest in controlling information held by institutions about him or her, provided by the Act.

POLICY CHANGE VIII

Proposed amendment:

24a.-(1) Notwithstanding any provision in any Act, where any correspondence sent by,

(a) an inmate of any provincial correctional institution;

(b) a child who is held in a place of open custody under section 91 of the Child and Family Services Act, 1984;

(c) a person held in a place of secure or open custody designated under section 24 of the Young Offenders Act(Canada); or

(d) a patient in a provincial psychiatric facility,

is addressed to the Commissioner it shall be immediately forwarded, unopened, to the Commissioner by the person for the time being in charge of the institution, training school, place of secure or open custody or facility.

(2) The person for the time being in charge of an institution, training school, place of secure or open custody or facility, as the case may be, shall immediately forward, unopened, any correspondence sent by the Commissioner to a person described in clauses (1)(a) to (d).

Proposed companion amendments:

a) The Ministry of Correctional Services Act R.S.O. 1980, chapter 275, as amended

and Regulation 649

1) Subsection 53(3)(b) of the Ministry of Correctional Services Act R.S.O. 1980, being chapter 275 as amended, is being amended by adding thereto the following clause:

53.-(3) A young person in custody has a right,

(b) to speak in reasonable privacy with and receive visits from,

(iv) the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act, 1987, and members of the Commissioner’s staff; and

2) Subsection 53(4)(d) of the Ministry of Correctional Services Act R.S.O. 1980, being chapter 275, as amended is being amended as follows:

53.-(4) Mail to and from a young person in custody, (d) shall not be opened and inspected under clause (a) or examined or read under clause (b) if it is from a person described in subclause (3)(b)(ii), (iii) or (iv).

3) Subsection 17(2) of Ontario Regulation 649 under the Ministry of Correctional Services Act, R.S.O. 1980, being chapter 275, is being amended by adding thereto the following clause:

17.-(2) Subsection (l) does not apply to a letter sent by an inmate to, or to an inmate from,

(f) the Information and Privacy Commissioner .

3) Subsection 17(5) of Ontario Regulation 649 under the Ministry of Correctional Services Act, R.S.O. 1980, being chapter 275, is being amended as follows:

17.-(5) A letter referred to in clause 2(e) and (f) shall not be opened, read or inspected for contraband by the Superintendent or the Superintendents designate.

b) The Child and Family Services Act, 1984, S.O. 1984, chapter 55

Section 99 of the Child and Family Services Act, 1984, is amended by adding thereto the following subsection:

99.-(1) A child in care has a right,

(b) to speak in private with and receive visits from,

(v) the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act, 1987 and members of the Commissioner’s staff.

(5) The service provider or a member of the service provider’s staff shall not read mail addressed to the Ontario Information and Privacy Commissioner from, or mail from the Information and Privacy Commissioner addressed to, a child described in clause 95(b).

c) The Mental Health Act, R.S.O. 1980, chapter 262

Subsection 20(3) of the Mental Health Act R.S.O. 1980, being chapter 262, is being amended by adding thereto the following clause:

(3) Subsection (2) does not apply to a communication written by a patient to, or appearing to be sent to a patient by,

(d) the Information and Privacy Commissioner and members of his staff.

Reason for the proposed amendments:

a) Nature of the problem to be addressed by the proposed amendments:

Presently, there is no provision in the Act which protects the confidentiality of correspondence or the privacy of communications between inmates of provincial correctional institutions, young offenders held in places of secure custody, children held in care, patients in provincial psychiatric facilities, and the Commissioner. Consequently, unlike other persons, it appears that these persons are unable to fully exercise their rights of appeal under the Act. Correctional institutions and the authorities of other places of secure custody have the power to read and inspect the mail of inmates. Therefore, they would become privy to anything said or any information supplied or documents produced by an inmate to the Commissioner in the course of an inquiry under the Act. The protections afforded a person under section 52 of the Act would, in effect, not apply to inmates of institutions since their communications are monitored or screened.

b) Other jurisdictions:

None of the other jurisdictions which have similar legislation to Ontario’s Freedom of Information and Protection of Privacy Act, 1987 have a provision protecting the confidentiality of communications, including correspondence, between institutional inmates

and the appellate bodies.

However, Ontario’s Ombudsman Act contains a provision that protects the confidentiality of correspondence between institutional inmates and the Ontario Ombudsman. Subsection 17(2) of the Ombudsman Act provides as follows:

17.-(2) Notwithstanding any provision in any Act, where any letter written by,

(a) an inmate of any provincial correctional institution;

(b) a ward of the Crown under the Training Schools Act;

(c) a person held in a place of secure or open custody designated under section24 of the Young Offenders Act (Canada); or

(d) a patient in a provincial psychiatric facility.

is addressed to the Ombudsman it shall be immediately forwarded, unopened, to the Ombudsman by the person for the time being in charge of the institution, training school, place of secure or open custody or facility.

Companion provisions are found in the Ministry of Correctional Services Act specifically, subsections 53(3)(b)(ii) and 53(4)(d) with respect to rights of a young person in custody to speak in reasonable privacy with and receive visits from the Ombudsman and her staff and the right of a young person to correspond with and receive mail from the Ombudsman without the mail being opened and inspected or examined or read.

Companion provisions are also found in Regulation 649 under the Ministry of Correctional Services Act, specifically under subsections 17(2)(e) and 17(5) of the Regulation with respect to the right of an inmate in a provincial correctional institution to confidentiality with respect to mail sent by an inmate to, or to an inmate from the Ombudsman.

Bill 80, An Act to amend the Ombudsman Act and the Child and Family Services Act, 1984, which received first reading on November 21, 1989, in the last session of the Legislative Assembly, but died on the Order Paper in June 1990, proposed, among other things, the repeal of subsection 17(2)(b) of the Ombudsman Act. It suggested that the reference to the Training Schools Act which has been repealed be removed and that reference should in its place be made to the Child and Family Services Act, 1984 . Specifically, subsection 8(1) of Bill 80 provided as follows:

8.-(1) Clause 17(2)(b) of the said Act, as re-enacted by the Statutes of Ontario, 1984, chapter 55, section 225, is repealed and the following substituted therefor:

(b) a child who is held in a place of open custody under section 91 of the Child and Family Services Act, 1984.

The Bill proposed, in section 15, a companion amendment to section 99 of the Child and Family Services Act, 1984:

15. Section 99 of the Child and Family Services Act, 1984, being chapter 55, is amended by adding thereto the following subsection:

(4) The service provider or a member of the service provider’s staff shall not read mail addressed to the Ontario Ombudsman from, or mail from the Ontario Ombudsman addressed to, a child described in clause 95(b).

In addition, Bill 80 attempted to strengthen the protection afforded to inmates by proposing the following addition to section 17 of the Ombudsman Act:

8.-(2) Section 17 of the said Act, as amended by the Statutes of Ontario, 1984, chapter 55, section 225, is further amended by adding thereto the following subsection:

(3) The person for the time being in charge of an institution, training school, place of secure or open custody or facility, as the case may be, shall immediately forward, unopened, any letter written by the Ombudsman to a person described in clauses (2)(a) to (d).

Currently, subsection 17(2) only protects the confidentiality of correspondence sent to the Ombudsman from an inmate. The proposed amendment, contained in subsection 8(2) of Bill 80, would have protected the confidentiality of correspondence from the Ombudsman to an inmate.

c) How the proposed amendments will resolve the problem:

The proposed amendment to the Act adopts the wording contained in subsection 17(2) of the Ombudsman Act and the improved wording which was suggested in section 8 of Bill 80, An Act to amend the Ombudsman Act and the Child and Family Services Act, 1984.

The proposed companion amendments to the Ministry of Correctional Services Act, as amended, Regulation 649 under theCorrectional Services Act and the Child and Family Services Act, 1984 extend the right of privacy of communications between inmates of institutions and certain specified individuals to the Commissioner and his or her staff.

The proposed amendments protect the confidentiality of correspondence and other communications between inmates and the Commissioner, to ensure that inmates are more fully able to exercise their rights under the Act.

POLICY CHANGE IX

Present section:

29.-(4) A head who fails to give the notice required under section 26 or subsection 28(7) concerning a record shall be deemed to have given notice of refusal to give access to the record on the last day of the period during which notice should have been given.

Proposed amendment:

add:

29.-(5) Where a head fails to give the notice required under section 26 or subsection 28(7) concerning a record, the Commissioner may, on appeal, require the head to waive payment of all or any part of an amount required to be paid by the person who made the request for access to the record.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

Part II of the Act does not provide a procedural mechanism to encourage adherence by an institution to the statutory time requirements. Currently, if an institution does not respond to a request for access to a record within 30 days after the request is received, or where there has been an extension of time limit under subsection 27(1) within the extended time limit or where there has been a written notice of delay under subsection 28(4) within 30 days after the notice is given, there is, in accordance with subsection 29(4), a deemed refusal.

However, if the deemed refusal is appealed, the institution, in accordance with subsection 50(3), is informed by the Commissioner of the notice of appeal and, in accordance with subsection 52(13), is given an opportunity to make representations to the Commissioner. The institution does not suffer any inconvenience or penalty for failing to adhere to the statutory time limits found in Part II. Thus, there is little incentive for an institution to comply with the initial 30-day time limit or specified time extension, as the institution may wait and respond later if the requester appeals.

As stated in The Report of the Commission on Freedom of Information and Individual Privacy/1980 entitled “Public Government for Private People”, Volume 2, Freedom of Information, at page 266, “(t)he effective implementation of a freedom of information statute is encouraged by the adoption of time limits within which responses to requests should be made.” The delay caused by the lack of a procedural mechanism within the Part II of the Act is a hinderance to the efficient operation of the Actand does not facilitate effective public access.

b) How the proposed amendment will resolve the problem:

The proposed amendment provides an institution with some incentive to adhere to the time limits established in Part II. The proposed amendment to subsection 29(4) is appropriate at this time because after 3 years of the operation of the Act, each institution should have developed the appropriate administrative machinery for dealing with requests and the 30 day period should not, at this stage, impose an onerous burden on an institution.

The proposed amendment gives meaning to the time limits that are established in Part II. It compensates the requester for unnecessary delay. In addition, it strengthens the Commissioner’s authority and effectiveness as a dispute resolving body.

POLICY CHANGE X

Proposed amendment:

43a. An institution shall ensure that personal information in its custody and under its control is protected by such security safeguards that are reasonable in the circumstances to prevent loss or unauthorized access, use, modification or disclosure.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

While subsection 60(d) of the Act gives the Lieutenant Governor in Council the power to make regulations “setting standards for and requiring administrative, technical and physical safeguards to ensure the security and confidentiality of records and personal information under the control of institutions”, and the Lieutenant Governor in Council has in fact exercised this power under subsection 60(d) (See section 4 of Ontario Regulation 516/90 under the Act), there is no provision in the Act which imposes a specific legal duty on an institution in respect of the security of the personal information in its custody or under its control.

Arguably, subsection 40(2) of the Act imposes such an obligation by necessary implication. Subsection 40(2) of the Actprovides as follows:

40.-(2) The head of an institution shall take reasonable steps to ensure that personal information on the records of the institution is not used unless it is accurate and up to date.

How can an institution ensure the accuracy of personal information on its records, if security measures surrounding the information are lax?

It is our view that the safekeeping of personal information is of sufficient importance to the protection of privacy of individuals that there should be a provision in the Act which imposes a specific duty on an institution to ensure the administrative, physical and technical security of personal information in the custody and under the control of the institution.

b) Other jurisdictions:

1) Quebec

Quebec has a specific provision in its statute – An Act respecting Access to documents held by public bodies and the Protection of personal information, which deals, in general terms, with a public body’s obligation to ensure the physical and technical security of personal information held by the body. Article 124 of the Quebec Act provides:

124. The Commission (D’Acces a L’Information) may prescribe conditions applicable to a personal information file with which the public body must conform and respecting, in particular,

(1) the kind of information that may be collected and the purposes for which it may be kept;

(2) the use to which the file may be put;

(3) the security measures that must be taken to ensure the confidentiality of nominative information;

(4) the categories of persons who have access to nominative information in the discharge of their duties, the persons who are exempted from registering pursuant to paragraph 3 of section 75, and, where such is the case, the special restrictions and conditions of access;

(5) the special conditions to which the maintenance of the file may be subject, where such is the case.

2) United States

The U.S. Privacy Act 1974, s. 552a(e)(10) requires federal agencies to set their own standards of security. It provides as follows:

(e) Agency requirements

Each agency that maintains a system of records shall

(10) establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;

3) Australia

Information Privacy Principle 4 of the Privacy Act 1988 deals in general terms with the duty of a “record-keeper” regarding storage and security of personal information:

A record-keeper who has possession or control of a record that contains personal information shall ensure:

(a) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorized access, use, modification or disclosure, and against other misuse; and

(b) that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorized use or disclosure of information contained in the record.

c) How the proposed amendment resolves the problem:

Like the Privacy statutes in Quebec, the United States and Australia, we are recommending that the Ontario Act contain a provision in the Act itself which imposes a duty on an institution to ensure the security of personal information.

The proposed amendment deals in general terms with security of personal information by fixing a standard of reasonable care on an institution to guard against accidental loss or unauthorized use of personal information. The provision adopts part of the wording contained in Information Privacy Principle 4 in the Australian Privacy Act 1988.

The proposed amendment will underscore the importance to the protection of individual privacy of the physical, technical and administrative security of personal information. It will provide a sound legal basis for section 4 of Ontario Regulation 516/90.

POLICY CHANGE XI

Present section:

50.-(2) An appeal under subsection (1) shall be made within thirty days after notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

Proposed amendment:

50.-(2) An appeal under subsection (1) shall be made within thirty days after notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

(2a) Prior to, or after, the expiry of the 30 day period referred to in subsection (2), and where special circumstances exist, the Commissioner may extend the time for f filing the appeal.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

A strict reading of subsection 50(2) indicates that the provision is mandatory (by the use of the word “shall” – seeInterpretation Act, subsection 30(34)). An appeal must be filed with the Commissioner within 30 days after notice was given of the decision. On its face, subsection 50(2) does not appear to allow the Commissioner to extend the 30-day appeal period even for a serious cause and where no one is prejudiced and the delay is reasonable. In addition, there is no other provision in theAct which allows the Commissioner to extend the 30-day period.

In Order No. 155, the Commissioner held, in effect, that he has the power to extend the 30-day appeal period in subsection 50(2) in certain circumstances, i.e., where the lapse of time after the date when an appeal should have been filed is not significant, and where no prejudice has been shown by the institution or any other person affected by the delay. The Commissioner interpreted subsection 50(2) liberally in favour of access to the process, rather than strictly to deny access. However, it is not clear that the Commissioner’s interpretation would survive judicial challenge.

b) Other jurisdictions:

Certain jurisdictions, specifically Quebec and Manitoba, have in their freedom of information legislation a provision which allows the appellate body – the Commission d’acces a l’information in Quebec’s case and the Court of Queen’s Bench in Manitoba’s case – the power to extend the time limit for appeal.

1) Quebec

Article 135 of An Act respecting Access to documents held by public bodies and the Protection of personal information, provides:

135. Every person whose request has been denied, in whole or in part, by the person in charge of access to documents or of protection of personal information may apply to the Commission for a review of the decision.

Every person who has made a request under this Act may apply to the Commission for a review of any decision of the person in charge concerning the time prescribed for processing the request, the mode of access to a document or information, the application of section 9 or the fee payable.

The application must be made within thirty days of the date of the decision or of the time granted by this Act to the person in charge of processing a request. However, the Commission may, for any serious cause, release the applicant from a failure to observe the time limit.

2) Manitoba

Subsections 30(1) and (2) of Manitoba’s The Freedom of Information Act, provide as follows:

30(1) An applicant who is refused access to a record and who has filed a complaint in respect thereof with the Ombudsman may appeal the refusal of access to the court by filing an originating notice of motion within 30 days of receiving the report of the Ombudsman under subsection 25(1) or subsection 27(1), or the notification referred to in subsection 29(2), as the case may be.

30(2) Prior to, or after, the expiry of the 30 day period referred to in subsection (1), and where special circumstances warrant, the court may extend the time for filing the appeal.

c) How the proposed amendment resolves the problem:

The proposed amendment expressly grants the Commissioner the power, in special circumstances (which he or she will define), to extend the 30-day appeal period in subsection 50(2), thereby removing any uncertainty as to whether he or she has or does not have the jurisdiction to extend the period under the present provision.

Situations will occur wherein there will be a legitimate need to extend the time limit under subsection 50(2). The proposed amendment gives credence to public concerns about equity and justice prevailing over strict adherence to time limits for no reason other than the inability to extend the time-limit for a lack of power. As long as the power is used in exceptional cases – where, for example, the delay is inconsequential, where there is no substantial prejudice to the parties involved, and where there is a good reason for the delay – then the underlying principles

of the Act will be well served by the giving of such a power to the Commissioner.

The proposed amendment by giving the Commissioner the power to extend the appeal period in “special circumstances” gives the Commissioner more flexibility. The Commissioner may look beyond the cause of the delay to the effect of the delay.

POLICY CHANGE XII

Present sections:

52.-(4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises

occupied by an institution for the purposes of the investigation.

(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site.

Proposed amendment:

(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site where it would not be reasonably practicable to reproduce the record or a part thereof by reason of its length or nature.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

A strict or plain reading of subsection 52(6), which qualifies the Commissioner’s power to require the production of a record in the course of an inquiry under subsection 52 (4), is that a head of an institution may, for any reason, require the Commissioner or his or her staff to examine the record at issue at the site of the record. In addition, a plain reading of subsection 52(6) indicates that where the head requires the examination of a record by the Commissioner of the original at its site, he or she may refuse to provide the Commissioner with a copy of the record.

Subsection 52(6) has the potential of being used by a head of an institution to delay the Commissioner’s review of the decision of the head regarding access. It has the potential of being used to defeat the purposes of the provisions in Part II and IV of theAct which impose precise time limits in order to facilitate effective public access. It also has the potential of being used to tax the resources of the Commissioner, particularly where the site of the original record is outside Metropolitan Toronto.

The potential for misuse of this provision by a head of an institution appears to have been recognized by the Freedom of Information and Privacy Branch, Management Board of Cabinet. In its Freedom of Information and Protection of Individual Privacy Manual, in the chapter entitled “Commissioner and Appeals” at page 6-2, the Freedom of Information and Privacy Branch suggests a narrowing of the scope of subsection 52(6):

The head of an institution may require that the examination of a record be of the original record and be conducted at the premises of the institution where the record is located (subsection 52(6). This power of the head might be invoked where, for example, a record is fragile or unique.

b) How the proposed amendment will resolve the problem:

The proposed amendment narrows the scope of subsection 52(6). It provides that a head may only require that the examination of a record by the Commissioner be of the original at its site where it would not “be reasonably practical to reproduce the record or part thereof by reason of its length or nature”. By necessary implication, the head, by reason of the proposed amendment, when read in conjunction with subsection 52(4), may only refuse to provide the

Commissioner with a copy of a record where it would not be reasonably practical to reproduce the record by reason of its length or nature.

The proposed amendment makes practical sense. It makes sense for a head to require that where a record could not survive being either transported to the Commissioner or being photocopied that the examination of the record by the Commissioner be of the original at its site. It also makes sense for a head to require that where a record is so large that the transportation of the record to the Commissioner would result in the expenditure of a lot of public funds or would be very cumbersome that the examination of the record by the Commissioner be of the original at its site.

Secondly, the proposed amendment is much less vulnerable to misuse by a head of an institution who wishes to delay proceedings or frustrate the efforts and resources of the Commissioner.

It is suggested that the proposed amendment also be incorporated into the Municipal Freedom of Information and Protection of the Privacy Act, 1989. The large number of municipalities and the geographic variety of locations of those municipalities across the province would make frequent visits an extreme strain on the Office of the Commissioner’s resources, (both time and financial). Further, until the municipalities learn to work with the municipal Act, there is

the distinct possibility that a provision such as subsection 52(6) of the provincial Act could be abused to delay compliance with the new municipal Act.

POLICY CHANGE XIII

Proposed amendment:

54a. The Commissioner has exclusive jurisdiction to exercise the powers conferred upon him or her by or under this Act and to determine all questions of fact or law that arise in any matter before him or her and the action or decision of the Commissioner thereon is final and conclusive for all purposes.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

A review of the legislative history of the Act reveals that the principal reasons why the legislature gave the appeal function to the Information and Privacy Commissioner were because the Commissioner would be accessible and he or she would be able to adjudicate quickly and at minimal cost. The lack of a privative clause, in our view, hinders these goals since, on the face of the Act, the grounds for judicial review are not limited.

The legislative history

In The Report of the Commissioner on Freedom of Information and Individual Privacy/1980, entitled “Public Government for Private People”, Volume 2, Freedom of Information, the Commission outlined a number of factors that must be considered in selecting a mechanism for reviewing decisions taken by institutions in response to requests for access to information. A couple of the factors identified were accessibility and timeliness of access:

Another important feature of the review process is its accessibility. An effective means of appeal should be afforded to individuals regardless of their geographical location within the province, their financial means and their sophistication in matters of legal procedure.

This suggests that, in the first instance, at least, the review body should be unencumbered by expensive or complicated procedural barriers to the initiation or processing of a request for a review of the initial decision.

In many situations, the timeliness, of access will be important to the individual. Accordingly, it would be desirable to implement appeal mechanisms capable of responding with a minimum of delay to a request for review. (page 358)

It appears from a review of the legislative history of the review process contained in the Act that it was intended that the Commissioner’s decisions be accepted by the parties as a final resolution of their dispute. However, as with other administrative tribunals subject to the laws of Ontario, judicial review of the decisions of the Commissioner would be possible only on very narrow grounds.

Most administrative tribunals subject to the laws of Ontario have, in their constituent pieces of legislation, clauses which indicate that the decisions of these tribunals are final and cannot be appealed – privative clauses. In the case of the Commissioner, the legislature omitted to include such a clause in the Act. the lack of a privative clause makes the Commissioner more vulnerable to application for judicial review than other administrative tribunals.

What is a private clause?

As indicated above, a privative clause indicates that there is to be no appeal from the tribunal’s decision-making. A privative clause gives to a tribunal the right to be wrong on questions of fact or law provided that such an error is made in the proper exercise of its jurisdiction. A privative clause will not protect from judicial review a jurisdictional error or an error of law on the face of the record (an error of law of great magnitude).

The reasons for the existence of such clauses in the constituent legislation of many tribunals is explained by Donald J.M. Brown in his article entitled “Privative clauses” in Recent Developments in Administrative Law, Toronto: Carswell Co. Ltd. 1987:

Time, expense, expertise, and a desire to avoid judicial attitudes are the common reasons given for seeking to insulate adjudicative decision-making by a special administrative agency from judicial review. (page 54)

Privative clauses reflect the rationale for administrative tribunals and the importance of finality and speed in the resolution of disputes. Although there is a lot of debate concerning the extent of protection afforded to a tribunal by a privative clause in its constituent legislation, in most cases the privative clause does have some effect. Depending on the view of the particular court, a privative clause will either make the courts very reluctant to interfere in all circumstances and almost never if the tribunal is acting within its jurisdiction, or the court may be at least somewhat reluctant to interfere in situations where the tribunal is acting within its jurisdiction. [See Metropolitan Life Insurance Co. v. I.U.O.E. [1970], S.C.R. 425 (S.C.C.), C.U.P.E., Loc. 963 v. New Brunswick Liquor Corporation [1979], 2 S.C.R. 227 (S.C.C.), S.E.I.U. Loc. 333 v. Nipawin District Staff Nurses Assn.[1975], 1 S.C.R. 382 (S.C.C.), Douglas Aircraft Co. of Canada v. McConnell [1980], 1 S.C.R. 245 (S.C.C.), Alberta Union of Provincial Employees, Branch 63 v. Board of Governors of Olds College, [1982] 1 S.C.R. 932 (S.C.C.), Syndicat des Employes de Production du Quebec et de L’Acadie v. C.L.R.B. (1984), 14 Admin. L.R. 72 (S.C.C.), O.P.S.E.U. v. Forer (1985), 15 Admin. L.R. 145, Re Windsor Western Hospital Centre Inc. and Mordowanec (1986), 56 O.R. (2d) 297 (Ont. Div. Ct.), CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 (S.C.C.) and American Farm Bureau Federation v. The Canadian Import Tribunal et. al, November 8, 1990, S.C.C., unreported.

Wording of clauses limiting court interference in provincial legislation

1) Pay Equity Act, 1987

Subsection 30(1) of the Pay Equity Act, 1987, provides:

30.-(1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

2) Workers’ Compensation Act, R.S.O. 1980, chapter 539, as amended

Subsection 86g of the Workers’ Compensation Act, as amended, concerning the Workers’ Compensation Appeals Tribunal provides:

86g.-(3) The Appeals Tribunal may make any order or direction that may be made by the Board and the order or direction of the Appeals Tribunal or a panel thereof is final and conclusive and not open to question or review in any court upon any grounds and no proceedings by or before the Appeals Tribunal or a panel thereof shall be restrained by injunction, prohibition or other process or proceeding in any court or be removable by application for judicial review, or otherwise, into any court.

3) Environmental Assessment Act, R.S.O. 1980, chapter 140, as amended

Subsection 18(19) of the Environmental Assessment Act, as amended, provides:

18.-(19) No decision, order, direction, resolution or ruling of the Board shall be questioned or reviewed in any court and no proceeding shall be taken in any court by way of injunction, declaratory judgement, certiorari, mandamus, prohibition, application for judicial review, quo warranto, or otherwise to questions, review, prohibit or restrain the Board or any of its decisions, orders, directions, resolutions or rulings.

4) Labour Relations Act, R.S.O. 1980 chap. 228

Section 108 of the Labour Relations Act which protects the decisions of the Ontario Labour Relations Board is almost identical to subsection 18(19) of the Environmental Assessment Act. In addition, the Labour Relations Act, in subsection 106(1), contains a finality clause. Subsection 106(1) and section 108 provide as follows:

106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes,…

108. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgement, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

The various clauses quoted above can be divided into two different types: the “finality” clause which is the type of clause employed by the Pay Equity Act, 1987 and subsection 106 (1) of the Labour Relations Act, and the “no certiorari” clause which is used by the Environmental Assessment Act, as amended, and section 108 of the Labour Relations Act. The

wording employed by the Workers’ Compensation Act, falls somewhere in between.

The English courts at one time made a distinction between “finality” and “no certiorari” clauses. Consequently, many provinces enacted legislation which protected the decisions of tribunals by using both of these clauses. For example, the Labour Relations Act contains both clauses.

The Ontario Court of Appeal in O.P.S.E.U. v. Forer held that a clause granting “finality” only is sufficient to give privative protection to a decision even without words explicitly taking away certiorari or judicial review. Therefore, even if distinctions have been made in the past it is questionable whether they will be made in the future.

b) How the proposed amendment will resolve the problem:

The proposed amendment, a finality clause, will underscore the legislative intention that the Commissioner’s decisions are to be accepted by the parties as a final resolution of their dispute.

Secondly, the proposed amendment, while not as strongly worded as a “no certiorari” clause, will limit, according to the Ontario Court of Appeal in its decision in Forer, the grounds for judicial review of the decisions of the Commissioner.

In summary, the proposed amendment will help to recognize and achieve the goals of the Commissioner which include being accessible, being responsive to policy concerns, and adjudicating, quickly and at a minimal cost to all parties.

POLICY CHANGE XIV

Proposed amendment:

54b. The Commissioner may at any time, if he or she considers it advisable to do so, reconsider a decision or order made by him or her and vary and revoke the decision or order.

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendment:

There is no specific provision in the Act which gives the Commissioner the power to review or rehear a decision or order already made.

It may be that the Commissioner has the power to correct “slips or inadvertent errors” even in the absence of express statutory authorization. (See Reid and David, Administrative Law and Practice, 2nd Edition, Canadian Legal Text Series, Butterworths, Toronto: 1978.)

Some courts have held that “where there is no right of appeal and the enabling legislation is beneficial, semble, the power (to reconsider) exists. The power may be implied by the tribunal’s exercising an “equitable” jurisdiction which is of a continuing nature.” (Reid and David, Administrative Law and Practice, (supra), at page 106; And, see for example, Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577)

However, in the recent decision of the Federal Court of Appeal in Ministre de l’Emploi et de l’Immigration v. Nabiye, 102 N.R. 390, the court discussed this continuing equitable jurisdiction but concluded that the Immigration Appeal Board had no jurisdiction to reopen an application for redetermination of refugee status, which it had already disposed of, solely in order to hear evidence of new facts. The continuing jurisdiction may only apply in situations where the initial decision was made contrary to the rules of natural justice or was otherwise null and void.

Thus, the Commissioner may have an implicit power to review or reconsider where he or she has exceeded his or her jurisdiction, or where there is a denial of natural justice, but this power is not assured or clear.

The absence of an explicit power to review or rehear on the part of the Commissioner is problematic for the following reasons:

1) there is no expeditious and informal way for the Commissioner to rectify substantive errors which he or she has made;

2) it is possible that a judicial review of the Commissioner’s order may result in the court pointing out an error which has been made. In that circumstance, the court may be inclined to send the issue back to the Commissioner with guidance as to what error was made. Without a specific clause contained in the Act, which allows the Commissioner to rehear such a matter, arguably the Commissioner would have no authority to hear the issue and the court would not send the matter back for reconsideration.

It is important to note that the express power to reconsider is not repugnant to an express provision that an order is final and binding, (i.e., a finality clause). A finality clause only operates vis a vis the law courts. In fact, it is the presence of a finality clause which strengthens the argument for a power to reconsider, since an appeal to the court would not be common, therefore, the tribunal should be able to reconsider or rehear matters in certain circumstances.

Accordingly, most tribunals which have in their enabling legislation finality clauses also have clauses giving them the power to review or reconsider their decisions. For example, with respect to the Pay Equity Hearings Tribunal, the Pay Equity Act, 1987contains both a finality clause and a clause giving the Tribunal the power to reconsider. Specifically, section 30 of the Pay Equity Act, 1987, provides:

30.-(1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

(2) The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order.

Similarly, with respect to the Ontario Labour Relations Board, the Labour Relations Act, combines the Board’s authority to make a final decision (the finality clause) with its power to reconsider the decision of the Board. Specifically, subsection 106(1) of theLabour Relations Act provides as follows:

106.-(1) The Board has exclusive jurisdiction to exercise powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

Although the power to reconsider as set out in the Pay Equity Act, 1987 and in the Labour Relations Act is broadly worded, it is likely limited to the extent that a tribunal cannot reverse a previous decision on the same facts. (See Reid and David,Administrative Law and Practice, supra, at page 113) This is to promote certainty while still allowing the tribunal flexibility to make changes where there is sufficient justification for doing so.

Moreover, most tribunals have interpreted their powers to reconsider very narrowly. For example, according to Sack and Mitchell in Ontario Labour Relations Board Law and Practice, (Toronto: Butterworth & Co., 1985), the Ontario Labour Relations Board has interpreted its power to reconsider in subsection 106(1) as follows:

The Board will generally not reconsider a decision unless:

(1) a party proposes to adduce new evidence and the new evidence is such that, if adduced, it would be practically conclusive, or

(2) a party wishes to make representations or objections not already considered by the Board that it had no opportunity to raise previously. (at page 532)

Robert Macaulay in his recent Report to the Management Board of Cabinet entitled “Directions – A review of Ontario’s Regulatory Agencies” recommends several restrictions on a tribunal’s use of the power to reconsider:

77.(2) In considering whether to rehear or review a proceeding or to vary or rescind an order made by it, the agency shall consider:

(a) whether that agency has made a material error of law or fact;

(b) whether material facts exist which were not considered by the agency at the time of the first proceedings;

(c) whether the issues of law or fact are such that the agency might have reached a different decision; and

(d) whether any party to proceedings or any other person, who has relied on the decision will be seriously, adversely affected by a revised decision. [Page 9-66]

Most of these guidelines reflect the considerations tribunals which have such clauses generally take into account when deciding whether to review decisions.

b) How the proposed amendment will resolve the problem:

The proposed amendment gives to the Commissioner the flexibility to correct his or her decisions or Orders where the need arises. It minimizes the need for recourse to the courts for the purposes of correction and at the same time ensures that wrong decisions or Orders are not perpetuated.

The wording of the proposed amendment is quite broad. It reflects the wording contained in the constituent legislation of most administrative tribunals. The broad wording allows each tribunal the flexibility to establish its own guidelines concerning the use of the power to reconsider. In the Commissioner’s case, the broad wording will give him or her the flexibility to establish guidelines which would be applicable in the context of the Act. He or she would establish the appropriate restrictions on the use of the power. These restrictions will ensure, on the one hand, that the certainty and finality of the decision-making process is not harmed and will provide, on the other hand, an expeditious, informal and inexpensive route by which material errors which have been made are corrected.

POLICY CHANGE XV

Proposed amendments:

59. The Commissioner may,

(ia) conduct a review of the access procedures of an institution or a review of records of personal information in the custody or under the control of an institution for the purpose of ascertaining whether an institution is complying with the requirements of this Act.

(iia) investigate an act or practice of an institution that may breach a privacy principle of this Act.

59a.-(1) For the purposes of the performance of the Commissioner’s function under subsection 59(ia) or subsection 59(iia) of the Act, an employee of the Commissioner, authorized by the Commissioner for the purposes of this section may, at any reasonable time of the day, after notifying the head of the institution of his or her purpose, enter the premises occupied by the institution and inspect any records that are kept at those premises and any systems and procedures that are in place at those premises and that are relevant to the performance of the function.

(2) The head shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of his or her function under subsection (1).

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendments:

There is no specific provision in the Act which gives to the Commissioner the power to review, at his or her own initiative and outside the context of an appeal, the access procedures of an institution, for the purpose of ascertaining whether the institution is complying with the requirements of the Act. In addition, there is no specific provision in the Act which gives to the Commissioner the power to review records of personal information in the custody or under the control of an institution or gives to the Commissioner the power to investigate an act or practice of an institution, at his or her own initiative or following a complaint, for the purposes of ascertaining whether the institution is complying with the requirements of Part III of the Actrelating to the collection, use, disclosure and retention of personal information.

On the other hand, there are provisions in the Act which impose a duty on the Commissioner to perform certain functions which cannot be performed in the absence of a power to review access procedures of an institution and a power to review records of personal information in the custody or under the control of an institution and a power to investigate an act or practice of an institution that may breach a privacy principle of the Act.

For example, under subsection 58(2)(b) of the Act, the Commissioner is obliged to make an annual report to the Speaker of the Assembly. In his or her report, the Commissioner is required to provide a comprehensive review of the effectiveness of theAct in providing access to information and protection of privacy, including an assessment of the extent to which institutions are complying with the Act. The Commissioner cannot accomplish this mandate if he or she does not have the power to independently review the access procedures of institutions, to independently review the records of personal information in the custody or under the control of institution, and to independently investigate the acts or practices of an institution, to determine if the institution is complying with the requirements of the Act.

Similarly, under subsection 59(b) of the Act, the Commissioner is given the power, after hearing the head of an institution, to order an institution to cease a collection practice, and destroy collections of personal information that contravene the Act. The Commissioner cannot accomplish this function if he or she does not have the power to independently review the records of personal information held by an institution or investigate the acts and practices of an institution, to determine if a collection practice of the institution is in accordance with sections 38 and 39 of the Act.

Arguably, these powers are necessarily implicit in the Act. Subsection 27(b) of the Interpretation Act, provides that in every Act, unless a contrary intention appears, where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of an act or thing. The provisions of the Interpretation Act apply to the Act.

In addition, the common law doctrine of implied jurisdiction which permits, in some cases, an agency to exercise powers which go beyond the powers explicitly set out in the legislation, may apply. The doctrine applies where the implied power as a matter of practical necessity is required for the agency to accomplish its mandate and where the implied power is not one to which the legislature has clearly addressed its mind. [See Reference Re National Energy Board Act (1986) 69 N.R. 174 (Federal Court of Appeal)] Both of these requirements are met in the case of the Commissioner. The Commissioner must as a matter of practical necessity have the power to conduct reviews of access procedures, to conduct reviews of records of personal information and to investigate complaints in order to accomplish an important part of his or her mandate. There are no provisions in the Actwhich clearly provide otherwise.

For certainty, however, the Act should contain a provision which expressly gives to the Commissioner the power to review access procedures of institutions, the power to review records of personal information in the custody or under the control of institutions, and the power to investigate the acts or practices of institution that may breach the privacy principles of the Act. The Commissioner should not have to rely on implied powers to perform an important part of his or her mandate.

In practical terms, the absence of express powers in the Act has meant that the Commissioner has sometimes had to rely on the good will of institutions to accomplish an important part of his mandate. This has had an effect on the manner and the timeliness in which he has been able to perform his function in ensuring compliance with the Act.

b) Other jurisdictions:

1) Federal

The federal Access to Information Act provides the Information Commissioner with the power to review access procedures of a government institution at his own initiative. Subsection 30(3) of the Access to Information Act provides as follows:

30.(3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act, the Commissioner may initiate a complaint in respect thereof.

The federal Privacy Act provides the federal Privacy Commissioner with broad powers to review records of personal information. Subsections 36(1) and (2) and 37(1) and (2) of the Privacy Act provide as follows:

36.(1) The Privacy Commissioner may, from time to time at the discretion of the Commissioner, carry out investigations of the files contained in personal information banks designated as exempt banks under section 18.

(2) Sections 31 to 34 apply, where appropriate and with such modifications as the circumstances require, in respect of investigations carried out under subsection (1).

37.(1) The Privacy Commissioner may, from time to time at the discretion of the Commissioner, carry out investigations in respect of personal information under the control of government institutions to ensure compliance with sections 4 to 8.

(2) Sections 31 to 34 apply, where appropriate and with such modifications as the circumstances require, in respect of investigations carried out under subsection (1).

Sections 31 to 34 of the Privacy Act deal with the Privacy Commissioner’s obligation to notify the head of the government institution concerned of his intent to conduct an investigation and his duty to inform the head of the substance of the complaint; the Privacy Commissioner’s authority to determine the procedure to be followed in the performance of his duties under thePrivacy Act; the Privacy Commissioner’s duty to conduct every investigation in private; the Privacy Commissioner’s duty to provide the parties with an opportunity to make representations; and the Privacy Commissioner’s powers to enable him to carry out of an investigation, i.e., to summon witnesses, to administer oaths, to receive and accept evidence, to enter premises occupied by any government institution, to converse in private with any person on any premises of the institution, and to examine or obtain copies of or extracts of books or other record found on the premises containing any matter relevant to the investigation.

Sections 4 to 8 of the Privacy Act cover the collection, retention and disposal of personal information.

2) Australia

Similarly, the Australian Privacy Commissioner is given broad express statutory authority and the duty, under the Privacy Act 1988, to conduct reviews of records of personal information maintained by agencies for the purposes of ascertaining whether the records are maintained according to Information Privacy Principles. (Subsection 27(1)(h)).

The Privacy Commissioner is also given the duty to investigate acts or practices of agencies, that may breach information privacy principles established under the Privacy Act 1988, and where the Commissioner considers it appropriate to do so, to attempt to effect settlements of the matters giving rise to the investigations. (Subsection 27(1)(a))

The agencies are required to provide the Commissioner and his or her staff with all reasonable facilities and assistance for the effective exercise of his or her powers. (Section 68)

3) Quebec

Under Article 127(1) of An Act respecting Access to documents held by public bodies and the Protection of personal information, the Commission D’Access a L’Information is given the statutory authority to conduct reviews of confidential files to determine whether personal information contained therein was entered and used in accordance with the conditions prescribed by the Commission:

127. The Commission may, of its own initiative or following a complaint from an interested person, investigate

(1) a confidential file to determine if the nominative information contained therein was entered and used in accordance with the order;

(2) whether the confidentiality of personal information contained in a file held by a public body respecting the adoption of a person has been respected.

c) How the proposed amendments will resolve the problems:

The proposed amendments adopt, in part, the wording found in subsections 27(1)(a) and (h) of the Australian Privacy Act, 1988. The wording in the above referenced provisions of the Australian Act, in our view, best reflects the intent of the Ontario legislature that is necessarily implicit from a review of duties imposed on the Ontario Commissioner under subsection 59(b) and subsection 58(2)(b) of the Act. The proposed amendments codify the Commissioner’s authority to conduct, at his own initiative or following a complaint, reviews of access procedures, reviews of records of personal information, and investigations of the acts or practices of institutions that may breach the privacy principles of the Act.

The proposed amendments will ensure the Commissioner’s ability to perform an important part of his or her mandate independently, efficiently and effectively. They will resolve any doubts or uncertainties that institutions may have as to whether or not they should allow the Commissioner and his or her staff access to their systems and procedures of records management and personal information banks.

POLICY CHANGE XVI

Present section:

59. The Commissioner may,

(b) after hearing the head, order an institution to,

(i) cease a collection practice, and

(ii) destroy collections of personal information,

that contravene this Act;

Proposed amendment:

59. The Commissioner may,

(b) after hearing the head, order an institution to,

(i) cease a use, disclosure, retention or collection practice, and

(ii) destroy collections of personal information,

that contravene this Act;

Reason for the proposed amendment:

a) Nature of the problem to be addressed by the proposed amendments:

While one of the purposes of the Act is “to protect the privacy of individuals with respect to personal information about themselves held by institutions …”, the Commissioner’s powers in ensuring that institutions comply with the privacy provisions and principles of the Act are limited.

Under the Act, the Commissioner has an obligation, on an annual basis, to make a report to the Speaker of the Assembly that would include recommendations with respect to the practices of particular institutions. In addition, the Commissioner has the power to conduct public education programs. However, the Act is silent with respect to what the Commissioner can do immediately, directly and effectively, in order prevent further contraventions, where institutions are using, disclosing or retaining personal information in their custody or under their control in a manner that contravenes Part III of the Act.

The current practice of the Commission is to enlist the support and co-operation of the alleged problem institution, prior to investigating a complaint of an interested person or commencing an investigation initiated by the Commission itself relating a possible contravention of section 41 or 42 of the Act. The Commission, after completing its investigation, would make recommendations regarding the complaint, if the complaint is supported by the Commission. These recommendations are generally adopted and implemented. However, this is not always the case. The Commission must, to some extent, rely on the good will of institutions to ensure compliance with a significant part of Part III of the Act.

b) Other jurisdictions:

1) Quebec

Under Article 128 of Quebec’s An Act respecting Access to documents held by public bodies and the Protection of personal information, the Commission D’Access a L’Information is given broad authority to make orders to enforce compliance with the Act, after investigating a personal information file or a confidential file. Article 128 provides:

128. The Commission may, after investigating a personal information file or a confidential file and after giving the public body responsible for the file an opportunity to submit written observations,

(1) order that nominative information be corrected or deleted from the file or that the use of the file made contrary to this Act, the order or the prescriptions of the Commission, as the case may be, be discontinued;

(2) order the public body to take the measures it considers appropriate to meet the conditions provided for by this Act or the prescriptions of the Commission;

(3) order the destruction of a personal information file established or used contrary to this Act;

(4) recommend to the Government that the order authorizing the establishment of a confidential file be amended or revoked.

2) Australia

Section 40 of Australia’s Privacy Act, 1988 provides that the Privacy Commissioner shall investigate complaints and may conduct investigations without complaints, where he or she thinks it is desirable that the act or practice be investigated. After investigating complaints, the Commissioner may make a wide variety of declarations to the improperly acting agency. Section 52 of the Privacy Act, 1988, in part, provides:

52. (1) After investigating a complaint, the Commissioner may:

(a) make a determination dismissing the complaint; or

(b) find the complaint substantiated and make a determination that includes one or more of the following:

(i) a declaration:

(A) where the principal executive of an agency is the respondent-that the agency has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; or

(B) in any other case-that the respondent has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iii) except where the complaint was dealt with as a representative complaint-a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;

(iv) a declaration that it would be inappropriate for any further action to be taken in the matter.

If the agency does not perform the action or course of conduct which is set out in the declaration, application may be made to court to seek an order that the declaration be followed (section 59). However, where the investigation is initiated by the Privacy Commissioner, the Privacy Commissioner only has the power to report to the responsible Minister and make recommendations (section 30).

3. The United States

The U.S. Privacy Act of 1974, contains a regime that includes civil remedies. As there is no equivalent Information and Privacy Commissioner in the United States, this type of scheme could be analogous to giving the power to the Commissioner. Section 552(g) of the Privacy Act describes a variety of agency breaches that entitle an individual to bring a civil action against the agency involved. The type of damages allowed include reasonable attorney fees, other litigation costs and the actual damages sustained.

In summary, the Quebec Commission, the Australian Privacy Commissioner and the U.S. courts, unlike Ontario’s Information and Privacy Commissioner, have broad remedial powers relating to privacy complaints.

c) How the proposed amendment will resolve the problems:

The order-making powers set out in the proposed amendment will provide substantive support to the enforcement of all of the privacy principles of the Act. Furthermore, these types of powers will underscore the importance given to the principles of privacy protection by the Province. By strengthening the remedial powers of the Commissioner, the proposed amendment will strengthen the substantive principles of the Act.