Court File No: 743/95
Ontario Court (General Division)
(White, Feldman and MacPherson JJ.)
This is an application for judicial review of a decision of Inquiry Officer Hale of the office of the Privacy Commissioner. The circumstances involve the unfortunate and untimely death of Mrs. Reid, the wife of the requester, at the Belleville General Hospital. Mrs. Reid died intestate. Mr. Reid submitted to the Inquiry Officer that because of the small value of his wife's estate, it was unnecessary for him to be appointed administrator. However, he has commenced a derivative action under the Family Law Act, R.S.O. 1990, c. F.3, against the hospital and certain of its staff on his own behalf and as litigation guardian on behalf of his children for the loss of the care, guidance and companionship of Mrs. Reid as wife and mother. The records at issue consist of the interview notes and summaries of interviews conducted by the Regional Coroner with hospital staff after the death.
Although several issues were raised in the factum, only one issue was pursued in argument, and that was whether s. 66(a) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("Act") is a jurisdictional provision requiring an inquiry officer to be correct in its interpretation. This section provides as follows:
In particular, the applicants submit that the term "personal representative" is a limiting term in the Act with a specific meaning in law which cannot be deviated from in the application of the Act. A similar position is taken with respect to the phrase "administration of the individual's estate".
Interpretation of "Personal Representative"
There is no definition of "personal representative", nor of "administration of the individual's estate" nor of "estate" in the Act. The Inquiry Officer's finding on this issue is set out on p. 2 of the decision as follows:
Later in the reasons, at p. 4, the Inquiry Officer makes the following reference to the requester:
From a review of his reasons, it is clear that the Inquiry Officer did not attempt to define the term "personal representative", and then find that Mr. Reid came within that definition. Rather, he engaged in an analysis of the relationship of the requester to the deceased, that is, husband and wife, found that there was no conflict with the estate, analogized the rights of the requester and his children to the rights of the estate, and then concluded, not that Mr. Reid is the personal representative of the deceased, but that he "can be likened to a personal representative", and "can act in this capacity for the purposes of the Act." Later he is referred to as "acting in a capacity akin to that of a 'personal representative'."
The Act requires that a deceased's rights or powers can only be exercised by his or her personal representative. To disclose personal information of the deceased to someone who is not and is not found to be her personal representative is beyond the jurisdiction of the Commissioner. As a result, the Inquiry Officer was incorrect in deciding that Mr. Reid was entitled to the information and his decision should be quashed.
If one wishes to consider that the inquiry officer did make a finding that the husband was the personal representative of the deceased "for the purposes of the Act", then the question becomes what is the standard of review of an inquiry officer in applying s. 66(a), and in particular the requirement that only the personal representative of the deceased can exercise her rights and powers, and then only in relation to the administration of her estate.
In setting out to answer this question, the court is required to take a practical and functional approach to interpreting the Act:
The court must analyze, within the context of the Act, whether the interpretation of the particular provision is something intended to be within the overall discretion of the Commission in its administration of the Act, or whether its interpretation and application is in effect a limitation placed on the Inquiry Officer by the legislature. Iacobucci J. described the issue this way in Canadian Broadcasting Corporation v. The Canada Labour Relations Board ,  1 S.C.R. 157 at p. 179:
The Act is administered by the Privacy Commission, with decisions made by the Commissioner and his Inquiry Officers on appeals from the various government agencies asked to disclose information contained within their agencies. The Commission is given very broad powers under the Act to determine, for example, if disclosure of information would be an unjustified invasion of privacy (s. 21(2),(3),(4)), or if certain presumptions apply, and to weigh and balance competing interests regarding disclosure versus non-disclosure (s. 49(b)), as was done in another part of this decision. The Commission's expertise, to which deference is to be accorded, is in the area of appropriate disclosure of government-held information within the parameters set out in the Act. The purpose and function of the Act is to provide a framework for the disclosure and withholding of such information, and the Commission is in charge of the proper and fair administration of that function.
In John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767, a majority of the Divisional Court panel concluded:
However, in that case, the majority went on to hold that the Commissioner was in error when he entered into a balancing process under s. 21(2) in order to rebut the presumption created by s. 21(3):
In my view a similar error was made in this case. Although there is no definition of "personal representative" in the Act, when that phrase is used in connection with a deceased and the administration of the deceased's estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act, R.S.O. 1990, c. E.22, s. 1, the Trustee Act, R.S.O. 1990, c. T.23, s. 1; and in the Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1:
The term "personal representative" can have other meanings when it is not applied to a deceased or the administration of a deceased's estate, such as in the Business Corporations Act, R.S.O. 1990, c. B.16, s. 1, where the term is defined as follows:
There is no ambiguity in the term "personal representative" of a deceased or in the phrase "administration of the individual's estate". As stated by the Divisional Court in the John Doe case, supra, there is no need for complex rules of statutory interpretation. The Legislature has used clear language to signify who may exercise the rights of an individual to have access to information under the Act. The determination of whether any person applying for information should be entitled to it under the circumstances, is a precondition for any application under the Act.
The question to be decided is whether the person seeking the information is the personal representative of the deceased individual with the power and authority to administer the deceased's estate. Only if so, does the Commissioner go on to decide if the purpose for which the information is sought is for the administration of that estate. If this criterion is satisfied, the Commissioner then applies his expertise to the provisions of the Act, which allow him to determine whether and to what extent there should be disclosure of information in the case at hand.
In seeking to determine the intent of the Legislature in s. 66(a) in limiting access to information of a deceased individual to the personal representative for the purpose of the administration of the estate, it is instructive to note s. 38(1) of the Trustee Act which provides:
This provision makes it clear that damages for wrongful death will not form part of the estate of the deceased, but go to the individual family member plaintiffs. Mr. Reid and his children in this case have brought a wrongful death action under the Family Law Act and any damages they recover will not form part of the deceased's estate.
In his decision, the Inquiry Officer suggests that previous decisions that used the "very narrow definition" of "personal representative" from the Estates Act and from the Trustee Act denied access to personal information to close family members about their deceased spouses, children and parents, and that this resulted in prejudice to families without significant assets "for whom an application for letters of administration would not make economic sense". Before us, counsel for the requester advised that the cost of letters of administration was approximately $200, an amount significantly less than the normal cost of responding to a judicial review application in the Divisional Court.
Furthermore, this reasoning of the Inquiry Officer demonstrates that in deciding whether a requester is a personal representative of the deceased individual exercising the individual's right to personal information for the purpose of the administration of the deceased's estate, he assumes that close family members are entitled to information about a deceased relative regardless of its relationship to the administration of the deceased's estate. This is a clear misconstruction of the section and of the scheme of the Act.
In fact, the executor of a deceased's estate may not be a family member, but may be a trust company or a family friend or advisor, or a family member who is not the spouse or child of the deceased. The executor may require certain financial information for the administration of the estate, or even certain personal information in order to pursue a lawsuit on behalf of the estate. At the same time, other family members may want other personal information for their own lawsuit. In such a situation, the commissioner may wish to decide that there is more than one personal representative of the deceased individual in order to implement the policy considerations articulated in this case.
However, the Act assures the public of Ontario of protection of the privacy of an individual by limiting the circumstances and the type of information that may be disclosed after death. It is not open to the Commissioner to grant access to personal information of a deceased to anyone but that individual's personal representative. The Commission is not granted carte blanche to divulge and withhold information in accordance with its current view of whether the particular requester should have access to the information about a deceased individual, or whether the individual would have wanted the information released to the particular requester.
On the issue of whether the requester is the personal representative, the Commission must be correct because the Legislature has designated that limit and not left a discretion in the Commission to release personal information to anyone else. Several other passages from the decision of the Inquiry Officer indicate that he misconstrued his function and decided, for reasons which may be relevant when an individual is applying for release of her or his own personal information, to release information to someone who was not a personal representative with the authority to administer the estate. At pages 6-7 of the reasons in paragraph 7, the Inquiry Officer says:
And at paragraph 8, page 7:
Finally he concludes at page 7:
The Inquiry Officer clearly felt that it was right and appropriate that the husband of the deceased have access to information concerning her death to which she would have had access, and that he have it on compassionate grounds, for example, for the husband's own satisfaction. These considerations may be appropriate if the information were being disclosed to the deceased's personal representative in relation to the administration of her estate. In this case, it is not. Therefore the decision was made beyond the jurisdiction of the Inquiry Officer and must be quashed. If I am wrong and the issue is whether the Inquiry Officer's decision was reasonable, in my view, his interpretation of the term "personal representative" was patently unreasonable.
Interpretation of "In Relation to the Administration of the Individual's Estate"
If the requester is the personal representative of the deceased individual, then the Commissioner must decide whether the information is requested in relation to the administration of an individual's estate. That is a question that the tribunal is entitled to decide, and the decision must not be patently unreasonable. In my view, because the husband is not the personal representative of the deceased, and because the estate of the deceased was not being administered by anyone, the decision of the Inquiry Officer that the power to access that information was being exercised "in relation to the administration of the individual's estate" was patently unreasonable. The reasons of the Inquiry Officer on this point are set out at p. 2-3:
Again the Inquiry Officer recognizes that the information is needed for an action which is a derivative action for next of kin directly and not for the estate, but finds that information relating to the deceased relates to the administration of her estate "within the meaning of s. 66(a) of the Act", without saying what that meaning is or how or why it diverges from the well-understood meaning of that term. The Inquiry Officer may have had a compassionate motive for holding that the exercise of a power to request information relates to the administration of the deceased's estate, while recognizing that it in fact relates to the needs of the requester, not related to the administration of the estate, however, that motive does not make the decision a reasonable one in the context of the role of the Commissioner to interpret and apply the Act.
The decision is therefore quashed. In all of the circumstances including the novelty of point, this is not an appropriate case for costs.