Counsel say the court’s ruling interpreting the scope of the Cabinet records exemption in Ontario’s statute is expected to be far-reaching as similar exemptions are found in freedom of information laws across Canada.
Supreme Court Justice Andromache Karakatsanis
The Ontario courts below upheld as “reasonable” a 2019 decision of Brian Beamish, Ontario’s then-information and privacy commissioner, that the 23 mandate letters sought by the respondent, CBC — and which set out the premier’s views on the policy priorities for his government’s term in office — were not exempt from disclosure under the freedom of information law. Cabinet Office (Re), [2019] O.I.P.C. No. 155.
However, the Supreme Court of Canada held unanimously that the information commissioner too narrowly interpreted the s. 12(1) Cabinet records exemption when he determined that there was nothing to suggest that the mandate letters served, or were intended to serve, as the basis for discussion by the Cabinet as a whole; rather he reasoned that the letters were an endpoint of the premier’s formulation of the policies and goals to be achieved by each of the ministries, and did not reveal the views, opinions, thoughts, ideas and concerns of the Cabinet ministers. On judicial review, the commissioner’s decision was upheld by the Divisional Court and by a majority of the Ontario Court of Appeal: Attorney General for Ontario v. Information and Privacy Commissioner, 2020 ONSC 5085 and Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74.
Justice Karakatsanis ruled, however, that the information and privacy commissioner’s disclosure order had to be set aside as unreasonable, while commenting in obiter that “the same conclusion follows regardless of whether the standard of review is correctness or reasonableness.”
Justice Karakatsanis said the mandate letters reflected the view of Premier Ford on the importance of certain policy priorities and marked the initiation, rather than the end, of a fluid process of policy formulation within Cabinet, and were revealing of the substance of Cabinet deliberations.
“The narrow zone of protection for Cabinet deliberations created by the information and privacy commissioner’s interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness,” Justice Karakatsanis wrote. “Here statutory text, purpose, and context lead inexorably to the conclusion that the Letters are protected from disclosure under s. 12(1)’s opening words.” The judge ordered CBC to pay the appellant province’s legal costs.
The Supreme Court was asked to interpret the opening words of s. 12(1), which protects the confidentiality of records that “would reveal the substance of [Cabinet] deliberations.”
“Freedom of information legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively,” Justice Karakatsanis explained. “Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.”
The judge said that “in approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationale of efficiency, candour, and solidarity”.
“Such an approach reflects the opening words of s. 12(1), which mandate a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations, rather than categorically excluding certain types of information from protection,” the judge explained. “Thus, ‘deliberations’ understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action.”
Moreover, “decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context,” she advised. “The identification and discussion of policy priorities in communications among Cabinet members are more likely to reveal the substance of deliberations, especially when considered alongside other available information, including what Cabinet chooses to do.”
Here the Commissioner “paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality,” Justice Karakatsanis wrote. “His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s.12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process.”
Justice Karakatsanis, the court's senior puisne judge who from 2000 to 2002 was Ontario’s top public servant and Secretary of the Ontario Cabinet and Clerk of the Executive Council, explained “Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded ‘outcomes’ of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.”
Justice Karakatsanis reasoned that even on the information commissioner’s own interpretation of s. 12(1), his application of the standard to the mandate letters was unreasonable. His characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the premier’s deliberative process “did not account for the broader context of the Cabinet’s deliberative process,” she wrote. “For one, as head of Cabinet, the Premier’s deliberations cannot be artificially segmented from those of Cabinet. And far from being mere ‘topics’ like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.”
In her concurrence, Justice Côté said she did not agree with her colleagues that the same conclusion followed, regardless of whether the standard of review applied was correctness or reasonableness. Noting reasonableness and correctness review are methodologically distinct, the judge said “what distinguishes reasonableness review from correctness review ‘is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision-maker’s place.’”
The issue on this appeal — the scope of Cabinet privilege — is “a general question of law of central importance to the legal system as a whole” which therefore had to be reviewed on a standard of correctness, Justice Côté held.
“With respect, my colleague fails to apply this methodology in practice. She conducts her own interpretation of s.12(1), and of the importance and nature of Cabinet privilege, and then measures it against that of the Commissioner. The fact that my colleague would have reached a different conclusion than that of the Commissioner does not make the Commissioner’s decision unreasonable. However, on the basis of my colleague’s reasons, which in my view involve a de facto correctness review, I conclude that the Commissioner’s decision is incorrect.”
At press time, the appellant Ontario Ministry of the Attorney General and its counsel had not responded to requests for comment.
Justin Safayeni, Toronto’s Stockwoods LLP
Thompson added CBC News “will continue to fight for open access to government-held information. We believe the media's coverage of the Ontario Greenbelt controversy, which included information the provincial government sought to keep private, illustrates the high public value of transparency and open access to information.”
Speaking on his own behalf, Justin Safayeni of Toronto’s Stockwoods LLP, who with Spencer Bass represented CBC, told Law360 Canada “the court’s decision reflects a broader interpretation of Ontario’s cabinet records exemption than the information and privacy commissioner has applied for the past 30+ years — one that must now accord with the nebulous contours of the Cabinet secrecy convention and its underlying rationales.”
Safayeni added that the court’s reasons “also suggest that information and privacy commissioner decisions interpreting and applying the cabinet records exemption will be subjected to stricter scrutiny by reviewing courts, whether labelled as reasonableness (as the majority did) or correctness (as per the concurrence).”
Both developments “will further restrict public access to cabinet records, which are already one of the hardest categories of information to obtain,” he said. “That is a disappointing development for those in favour of greater public transparency when it comes to the body in charge of some of the province’s most consequential decisions.”
Iris Fischer of Blake, Cassels & Graydon LLP
FIPPA begins with a presumption that government information should be available to the public, subject only to “necessary exemptions” that are “limited and specific,” she noted.
“The purpose of access legislation is to allow media and the public to have the information necessary to hold government to account,” she said. “CCLA submitted that the s. 12(1) FIPPA exemption for the disclosure of Cabinet documents that would reveal the ‘substance of deliberations’ should be interpreted narrowly, in accordance with FIPPA’s purpose, in a way that would exempt from disclosure only documents revealing who said what during the Cabinet deliberative process. This principled submission was based on the Cabinet secrecy convention, which is limited in scope.”
Instead of adopting this principled approach to interpreting s. 12(1), Fischer said the Supreme Court took the approach to interpreting “substance of deliberations” as covering a broad sweep of Cabinet discussions, ending only when a final decision on a policy issue is formulated and publicly announced. “The CCLA is concerned that this approach will result in many more government records being withheld from the public than was previously the case,” Fischer said.
She noted that decades ago, Canada was a leader in freedom of information legislation, a time that has long since passed.
“Unfortunately, today’s decision represents the continuation of a trend where courts pay lip service to the important transparency goals of freedom of information legislation, while continuing to incrementally expand the scope of exemptions.”
Moreover, as Justice Côté pointed out in her concurring reasons, “the majority’s approach effectively amounts to a disguised correctness review of the information and privacy commissioner’s decision,” Fischer suggested.
“The information and privacy commissioner gave careful and thorough reasons, relying on the purpose of FIPPA, the principle that exemptions should be limited and specific, previous Supreme Court decisions, appellate jurisprudence across Canada, and many past administrative decisions,” she said. “From an administrative law standpoint, today’s decision overturning that approach also introduces new uncertainty into the reasonableness standard.”
Photo of Justice Andromache Karakatsanis: Supreme Court of Canada Collection
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.