J.R. of P-1027 Order: P-1027
Court File No: 743/95

Ontario Court (General Division)
Divisional Court

(White, Feldman and MacPherson JJ.)

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

AND IN THE MATTER OF Order P-1027 of the Information and Privacy Commissioner of Ontario ordering disclosure of certain records pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended

Catherine Adams, Sandra Costa, Sylvia Mitchell, Gail Beatty
and William Arbuckle

Donna Guidolin
for the applicants
- and -

Donald Hale, Inquiry Officer, Information and Privacy Commissioner/Ontario,
Ministry of the Solicitor General and Correctional Services and Roger Reid


W. Challis and D. Goodis for the respondent Donald Hale, Inquiry Officer

S. Kearney, for the respondent Roger Reid
) Heard: March 3, 1996  


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:


Any right or power conferred on an individual by this Act may be exercised,


where the individual is deceased, by the individual's personal representative if exercise of the right or power relates to the administration of the individual's estate;

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:

I find that the appellant is able to initiate an action against the hospital solely because he is the husband of the deceased. His cause of action is derived from that relationship. There exists, accordingly, some measure of concurrence between the rights of his deceased wife and those which the appellant can exercise as a result of her death. In addition, I find that there do not exist any adverse interests between the appellant and the estate of the deceased, in fact, the appellant is acting in the interests of the surviving family members.

In previous orders, the Commissioner's office has adopted the very narrow definition of the term "personal representative" found in the Estates Act and the Trustees Act. By taking this approach, close family members have been denied access to personal information about their deceased spouses, children and parents as they did not fall within this definition of "personal representative" of the deceased. I find that this has resulted in prejudice to families without significant assets for whom an application for letters of administration would not make economic sense. Close family members, regardless of their economic status, ought to have a similar right of access to information about their deceased spouse, child or parent as those families who have sufficient assets to require the appointment of an administrator for the deceased's estate.

I find, therefore, that there exists a sufficient degree of overlap between the rights which the appellant is exercising on behalf of himself and his children with those of the estate such that the husband can be likened to a personal representative of his deceased wife, and can act in this capacity for the purposes of the Act.

Later in the reasons, at p. 4, the Inquiry Officer makes the following reference to the requester:

As the appellant is acting in a capacity akin to that of a "personal representative" of the deceased, he is entitled to access to the personal information relating to her medical history, diagnosis, condition, treatment and evaluation which is contained in the records.

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 examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction. U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1088/9.

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 , [1995] 1 S.C.R. 157 at p. 179:

The goal is to determine whether the legislature intended that the question in issue be ultimately decided by the tribunal, or rather by the courts.

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:

We therefore conclude the commissioner's decisions, already protected by the lack of any right of appeal, ought to be accorded a strong measure of curial deference even where the legislature has not insulated the tribunal by means of a privative clause. (p. 783).

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):

The words of the statute are clear. There is nothing in the section to confuse the presumption in s. 21(3) with the balancing process in s. 21(2). There is no other provision in the Act and nothing in the words of the section to collapse into one process, the two distinct and alternative processes set out in s. 21. Once the presumption has been established pursuant to s. 21(3), it may only be rebutted by the criteria set out in s. 21(4) or by the "compelling public interest" override in s. 23. There is no ambiguity in the Act and no need to resort to complex rules of statutory interpretation. The commissioner fundamentally misconstrued the scheme of the Act. His interpretation of the statute is one the legislation may not reasonably be considered to bear. In purporting to exercise a discretion in the form of a balancing exercise, he gave himself a power not granted by the legislation and thereby committed a jurisdictional error. (p. 783/4)

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:

"personal representative" means an executor, an administrator, or an administrator with the will annexed.

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:

"personal representative", where used with reference to holding shares in that capacity, means an executor, administrator, guardian, tutor, trustee, receiver or liquidator or the committee of or curator to a mentally incompetent person.

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:


Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

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:

The appellant is interested in finding out what caused his wife's death and whether the hospital or its staff may have been negligent in their treatment of her. The appellant also argues that if deficiencies in the treatment of emergency patients at the hospital exist, it is in the public interest that such problems be exposed and, if necessary, corrected. I agree that it is important that public confidence and public safety are assured at this particular facility. I find that this is a factor weighing in favour of the disclosure of the requested information.

And at paragraph 8, page 7:

The appellant has also made reference to his interest in determining what caused the death of his wife, for his own satisfaction, as well as that of his children. In my view, this is also a consideration, albeit an unlisted factor, in balancing the privacy interests of one of the affected persons against the appellant's right of access.

Finally he concludes at page 7:

The balancing of competing interests under section 21(2) of the Act is usually difficult, and this case is no exception. I have carefully weighed the factors favouring the protection of privacy of one of the affected persons against the right of the appellant, standing in the position of the deceased, to access to the requested records. I find that, on balance, the disclosure of the remaining information contained in the records would not result in an unjustified invasion of the personal privacy of one of the affected persons. I find that the appellant's right to know the circumstances which led to his wife's death outweigh the privacy concerns of this affected person and that the information should be disclosed to the appellant. [emphasis added]

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:

The next question to be determined is whether the appellant's request for access to the information contained in the records "relates to the administration of the estate". A personal representative acting on behalf of an estate itself has no cause of action for the wrongful death of a deceased as a result of section 38(1) of the Trustee Act. Accordingly, the value of the estate would not be enhanced should the appellant be successful in an action against the hospital. The appellant does not, therefore, require the information requested in order to assist in the winding up or gathering of the assets of the estate.

In my view, however, the phrase "relates to the administration of the individual's estate" can be read so as to encompass information which would enhance decision making relating to matters involving the estate. The question to be addressed is whether granting access to the requested information would enable the deceased's personal representative to make a more informed decision about matters which relate to the estate. In this case, I find that obtaining access to the requested information would enhance the appellant's ability to make an informed choice about whether to proceed with a Family Law Act derivative action on behalf of himself and his children for the loss of the deceased's care, guidance and companionship. As this right is derived as a result of the death of the appellant's wife, I conclude that in the circumstances of this appeal, the exercise of the right of access to information relating to the deceased by the appellant relates to the administration of her estate within the meaning of section 66(a) of the Act. The appellant is, accordingly, entitled to stand in the position of the deceased person with respect to the requested information.

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.