Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
Collection
Supreme Court Judgments
Date
2024-02-02
Neutral citation
2024 SCC 4
Case number
40078
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Ontario
Subjects
Access to information
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
Appeal Heard: April 18, 2023 Judgment Rendered: February 2, 2024 Docket: 40078
Between:
Attorney General of Ontario Appellant
and
Information and Privacy Commissioner of Ontario and Canadian Broadcasting Corporation Respondents
- and -
Attorney General of British Columbia, Attorney General of Alberta, Canadian Civil Liberties Association, BC Freedom of Information and Privacy Association, Centre for Free Expression, Canadian Journalists for Free Expression, Canadian Association of Journalists and Aboriginal Peoples Television Network Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 64)
Karakatsanis J. (Wagner C.J. and Rowe, Martin, Jamal and O’Bonsawin JJ. concurring)
Concurring Reasons: (paras. 65 to 83)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Attorney General of Ontario Appellant
v.
Information and Privacy Commissioner of Ontario and
Canadian Broadcasting Corporation Respondents
and
Attorney General of British Columbia,
Attorney General of Alberta,
Canadian Civil Liberties Association,
BC Freedom of Information and Privacy Association,
Centre for Free Expression,
Canadian Journalists for Free Expression,
Canadian Association of Journalists and
Aboriginal Peoples Television Network Interveners
Indexed as: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
2024 SCC 4
File No.: 40078.
2023: April 18; 2024: February 2.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for ontario
Access to information — Exemptions — Cabinet records — Mandate letters — Cabinet records exempted by provincial legislation from general right of public access to government‑held information — Cabinet records exemption applicable when disclosure would reveal substance of cabinet deliberations — Whether cabinet records exemption protects mandate letters prepared for cabinet ministers by premier from disclosure — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, s. 12(1).
A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018. The letters set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request. It claimed the letters were exempt from disclosure under the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”), which protects, in its opening words, the confidentiality of records that would reveal the “substance of deliberations” of Cabinet or its committees. The CBC appealed to the Information and Privacy Commissioner of Ontario (“IPC or Commissioner”), who found that the letters were not exempt and ordered their disclosure. On judicial review, the Divisional Court found that the IPC’s decision was reasonable and a majority of the Court of Appeal agreed.
Held: The appeal should be allowed and the order of the IPC set aside.
Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.: The mandate letters are protected from disclosure under s. 12(1) of FIPPA. The opening words of s. 12(1) demand a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations. Statutory text, purpose, and context lead inexorably to the conclusion that the mandate letters are protected from disclosure under s. 12(1)’s opening words. The mandate letters reflect the view 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.
Freedom of information legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. All such legislation across Canada balances these two essential goals through a general right of public access to government‑held information subject to exemptions or exclusions — including those for Cabinet records or confidences. In Ontario, s. 12(1) of FIPPA exempts a list of records, as well as any other records that would reveal the substance of deliberations of Cabinet or its committees. The legislative context shows that this exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality. But beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention. Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy is crucial context in interpreting s. 12(1).
In Canada’s constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility. Responsible government is a fundamental principle of Canada’s system of government and the most important non-federal characteristic of the Canadian Constitution. Cabinet secrecy derives from the collective dimension of ministerial responsibility, which requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny. This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced. These purposes are referred to as the candour and solidarity rationales for Cabinet confidentiality. There is also a third rationale for the convention of Cabinet confidentiality: it promotes the efficiency of the collective decision-making process. Thus, Cabinet secrecy promotes candour, solidarity, and efficiency, all in aid of effective government.
The prerogative to determine when and how to announce Cabinet decisions is grounded in the harmful impact that premature disclosure of policy priorities can have on the deliberative process. The efficiency of the deliberative process justifies keeping Cabinet proceedings confidential until a final decision is made and announced. Publicizing Cabinet’s decision-making process before the formulation and announcement of a final decision would increase the public pressure that stakeholders put on ministers and give rise to partisan criticism from their political opponents; this scrutiny would ultimately paralyze the collective decision-making process. The substance of Cabinet deliberations also encompasses discussion of when and how to communicate government priorities.
Cabinet’s deliberative process consists of discussion, consultation, and policy formulation between the Premier, individual ministers, and Cabinet as a whole. The first minister, as head of Cabinet, enjoys extensive powers within Cabinet’s deliberative process. In many regards, the role and activities of the Premier are inseparable from Cabinet and its deliberations. First ministers preside over Cabinet, set Cabinet agendas, determine Cabinet’s membership and internal structure, set Cabinet procedures, and have the right to identify the consensus and determine what Cabinet has decided. Agenda‑setting, which occurs at an early stage, is a crucial part of the decision-making process. Though deliberative processes have changed over time at both the provincial and federal levels, the critical role of agenda-setting and the central involvement of the first minister in this exercise have remained constant. Not all stages of Cabinet’s deliberative process take place sitting around the Cabinet table behind a closed door. The decision-making process in Cabinet extends beyond formal meetings of Cabinet or its committees. The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet’s deliberative process, and will be revealing of the substance of Cabinet deliberations when compared against subsequent government action.
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 rationales of efficiency, candour, and solidarity. They must also be attentive to the dynamic nature of executive decision-making, the function of Cabinet itself and its individual members, the role of the Premier, and Cabinet’s prerogative to determine when and how to announce its decisions.
In the instant case, it is not necessary to resolve the issue of standard of review, as the same conclusion follows regardless of whether the standard of review of the IPC’s decision is correctness or reasonableness. The narrow zone of protection for Cabinet deliberations created by the IPC’s interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness. The IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process. As a result, the IPC’s narrow interpretation of the “substance of deliberations” was unreasonable, as was his application of the provision to the mandate letters.
Per Côté J.: There is agreement with the majority’s interpretation of s. 12(1) of FIPPA, and with its conclusion that the mandate letters at issue are exempt from disclosure under that provision. However, there is disagreement with the majority’s statement that it is not necessary to resolve the question of the applicable standard of review.
The Court has recognized that correctness review is necessary to resolve general questions of law — such as the appropriateness of limits on solicitor-client privilege and the scope of parliamentary privilege — that are of fundamental importance and broad applicability, with significant legal consequences for the justice system as a whole. The scope of Cabinet privilege is not a question particular to Ontario’s specific regulatory regime and there is no principled reason why Cabinet privilege should be treated any differently — or is any less important to the legal system as a whole — than solicitor‑client privilege or parliamentary privilege. The scope of Cabinet privilege is a question of central importance to the legal system as a whole. It must be reviewed for correctness because courts, when conducting a reasonableness review, cannot provide the single determinate answer that such questions require.
In the instant case, there is disagreement with the majority that the same conclusion follows regardless of whether the standard of review is correctness or reasonableness. The Commissioner’s reasons were intelligible and transparent and a number of relevant factors weigh in favour of the Commissioner’s interpretation of s. 12(1). The fact that the majority would have reached a different conclusion does not make the Commissioner’s decision unreasonable. A court conducting 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. The majority fails to apply this methodology in practice.
However, there is agreement with the majority’s interpretation of the scope of Cabinet privilege, which is the correct interpretation, and with its conclusion that the mandate letters are exempt from disclosure under s. 12(1). The “substance of deliberations” encompasses Cabinet’s deliberative process from beginning to end, including directives and policy priorities communicated by the Premier to individual ministers. By concluding otherwise, the Commissioner adopted an incorrect interpretation.
Cases Cited
By Karakatsanis J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Carey v. Ontario, [1986] 2 S.C.R. 637; Order PO-1725, 1999 CanLII 14318; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3; Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Conway v. Rimmer, [1968] A.C. 910.
By Côté J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat), 2001 NSCA 132, 197 N.S.R. (2d) 154; Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) (1998), 111 B.C.A.C. 95; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
Statutes and Regulations Cited
Access to Information Act , R.S.C. 1985, c. A‑1, s. 69 .
Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A‑1.2, s. 27.
Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20, ss. 13 to 14.
Access to Information and Protection of Privacy Act, C.S.Nu., c. A‑20, s. 13.
Access to Information and Protection of Privacy Act, S.Y. 2018, c. 9, s. 67.
Act respecting Access to documents held by public bodies and the Protection of personal information, CQLR, c. A-2.1, ss. 30 to 38.
Canada Evidence Act , R.S.C. 1985, c. C-5, s. 39 .
Freedom of Information and Protection of Privacy Act, C.C.S.M., c. F175, s. 19.
Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 22.
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 12.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss. 1(a)(ii), 12(1), 16, 20, 21.
Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 13.
Freedom of Information and Protection of Privacy Act, S.P.E.I. 2001, c. 37, s. 20.
Freedom of Information and Protection of Privacy Act, S.S. 1990‑91, c. F‑22.01, s. 16.
Authors Cited
Bakvis, Herman. “Prime Minister and Cabinet in Canada: An Autocracy in Need of Reform?” (2000), 35:4 J. Can. Stud. 60.
Brooks, Stephen. Canadian Democracy, 9th ed. Don Mills, Ont.: Oxford University Press, 2020.
Campagnolo, Yan. Behind Closed Doors: The Law and Politics of Cabinet Secrecy. Vancouver: UBC Press, 2021.
Campagnolo, Yan. “The Political Legitimacy of Cabinet Secrecy” (2017), 51 R.J.T.U.M. 51.
Canada. Privy Council Office. A drafter’s guide to cabinet documents. Ottawa, 2013.
d’Ombrain, Nicholas. “Cabinet secrecy” (2004), 47 Can. Pub. Admin. 332.
Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law & Politics, 2nd ed. Don Mills, Ont.: Oxford University Press, 2014.
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2023 (updated 2023, release 1).
Ontario. Commission on Freedom of Information and Individual Privacy. Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy. Toronto, 1980.
Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 21, 1st Sess., 33rd Parl., July 12, 1985, pp. 753-55.
Ontario. Office of the Premier. A Government for the People: Speech from the Throne, July 12, 2018 (online: https://news.ontario.ca/en/speech/49713/a-government-for-the-people; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC4_1_eng.pdf).
Schacter, Mark, and Phillip Haid. Cabinet Decision-Making in Canada: Lessons and Practices. Ottawa: Institute on Governance, 1999.
White, Graham. Cabinets and First Ministers. Vancouver: UBC Press, 2005.
APPEAL from a judgment of the Ontario Court of Appeal (Gillese, Lauwers and Sossin JJ.A.), 2022 ONCA 74, 160 O.R. (3d) 481, 465 D.L.R. (4th) 707, 93 Admin. L.R. (6th) 17, [2022] O.J. No. 430 (Lexis), 2022 CarswellOnt 859 (WL), affirming a decision of Swinton, Penny and Kristjanson JJ., 2020 ONSC 5085, 93 Admin. L.R. (6th) 1, [2020] O.J. No. 3606 (Lexis), 2020 CarswellOnt 12185 (WL), affirming a decision of the Information and Privacy Commissioner of Ontario, Order PO‑3973, 2019 CanLII 76037, [2019] O.I.P.C. No. 155 (Lexis). Appeal allowed.
Judie Im, Nadia Laeeque and Jennifer Boyczuk, for the appellant.
William S. Challis and Linda Chen, for the respondent the Information and Privacy Commissioner of Ontario.
Justin Safayeni, Spencer Bass and Dustin Milligan, for the respondent the Canadian Broadcasting Corporation.
Tara Callan, Tamara Saunders and Layli Antinuk, for the intervener the Attorney General of British Columbia.
Sean McDonough and Melissa Burkett, for the intervener the Attorney General of Alberta.
Iris Fischer and Gregory Sheppard, for the intervener the Canadian Civil Liberties Association.
Sean Hern, K.C., and Benjamin Isitt, for the intervener the BC Freedom of Information and Privacy Association.
Jessica Orkin and Adriel Weaver, for the interveners the Centre for Free Expression, the Canadian Journalists for Free Expression, the Canadian Association of Journalists and the Aboriginal Peoples Television Network.
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.
[2] Access to information promotes transparency, accountability, and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to “improve the workings of government” by making it “more effective, responsive and accountable” to both the legislative branch and the public (Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 63).
[3] However, in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is “essential to good government” (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, [1986] 2 S.C.R. 637, at pp. 658-59).
[4] All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees. The interpretation of “substance of deliberations” by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.
[5] The access to information dispute in this appeal arises out of a Canadian Broadcasting Corporation (CBC) journalist’s request to access 23 letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018 (Letters). These Letters, commonly called “mandate letters”, set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the Letters were exempt from disclosure under s. 12(1) of FIPPA.
[6] The CBC appealed to the IPC, who found that the Letters were not exempt and ordered their disclosure (Order PO-3973, 2019 CanLII 76037). On judicial review, the Ontario Divisional Court found that the IPC’s decision was reasonable and a majority of the Ontario Court of Appeal agreed (2020 ONSC 5085, 93 Admin. L.R. (6th) 1; 2022 ONCA 74, 160 O.R. (3d) 481). In dissent, Lauwers J.A. would have found that the decision was unreasonable for several reasons, but mainly because it eroded the sphere of Cabinet privilege that s. 12(1) is designed to preserve.
[7] As I shall explain, I conclude that the IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. 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. 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.
[8] Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s 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. 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.
[9] I would allow the appeal and set aside the decision of the IPC.
II. Reasons of the IPC
[10] Before the IPC, Cabinet Office submitted the Letters should be protected for three reasons: (1) the Letters were placed on the agenda of Cabinet’s initial meeting, provided to each minister during the meeting, and the Premier’s key messages on policy initiatives would have been discussed at that meeting; (2) the Letters reveal the deliberations of the Premier in setting policy priorities for Cabinet, which are inherently part of the deliberative process of Cabinet; and (3) disclosure of the Letters would reveal the substance of future Cabinet deliberations because many priorities outlined in the Letters require deliberation by Cabinet and its committees before implementation (paras. 26-29). Cabinet Office submitted that prematurely disclosing policy initiatives could endanger free and frank discussion of these initiatives in future Cabinet meetings, and stressed the prerogative of the Premier “to determine the manner and timing by which the government will disclose its policy priorities” (paras. 30 and 32).
[11] The IPC found the Letters were not protected by s. 12(1) and ordered they be disclosed. The IPC began by examining the purpose of the Cabinet records exemption, given two underlying rationales for preserving the confidentiality of Cabinet deliberations: ministerial candour and solidarity. He found that the purpose was “to promote the free and frank discussion among Cabinet members of issues coming before them for decision, without concern for the chilling effect that might result from disclosure of their statements or the material on which they are deliberating” (para. 86).
[12] The IPC rejected the CBC’s argument that “substance of deliberations” should be restricted to records revealing discussion of the pros and cons of a course of action. He recognized that “the exemption may extend more generally to include Cabinet members’ views, opinions, thoughts, ideas and concerns” expressed in the deliberative process and to documents that “were intended to serve, or did serve, as . . . the basis for discussions by Cabinet as a whole” (paras. 98 and 113; see also paras. 116, 119 and 131). The IPC noted that, generally, “[s]ection 12(1) is designed to protect deliberative communications occurring within” Cabinet’s policy-making process, not the “outcomes” of that process (i.e. the decisions themselves) or mere “subjects” or “topics” of deliberation (paras. 92 and 104). Still, he recognized that topics or subject matters will be exempt where “the context or other additional information would permit the reader to draw accurate inferences” as to Cabinet deliberations (para. 100, quoting Order PO-1725, 1999 CanLII 14318 (Ont. I.P.C.), at p. 16). Later in his decision, the IPC relied on past precedent interpreting s. 12(1)(a) to hold that records not falling within the specific exemptions at s. 12(1)(a) to (f) will only qualify for protection where it is likely disclosure “would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting” (paras. 94, 101 and 121).
[13] In the application, the IPC held the Letters were not protected because nothing suggested they were intended to serve, or served, as the basis for discussions by Cabinet as a whole (paras. 113-14). At most, the Letters indicate topics that may have arisen during a Cabinet meeting, or the subject matter of unspecified policy initiatives that may be considered in future meetings (paras. 115 and 119). Moreover, rather than being revealing of the views, opinions, thoughts, ideas, and concerns of ministers, the IPC held that the Letters represent “the end point of the Premier’s formulation of the policies and goals to be achieved by each Ministry” — or, “the product of his deliberations” — and fell outside the ambit of s. 12(1) (paras. 132 and 134; see also para. 79).
III. Analysis
[14] Section 12(1) protects the confidentiality of records that “would reveal the substance of [Cabinet] deliberations”. Similar exemptions are found in FOI legislation across the country.[1] The opening words of s. 12(1) provide that “[a] head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations” of Cabinet or its committees. The paragraphs of the provision protect listed records, which need not meet the standard set out in s. 12(1)’s opening words to qualify for protection. Section 12(1) is reproduced in full in the attached Appendix. Only the opening words of the provision are at issue.
[15] Here, the sole issue is whether the public should have access to the Premier’s mandate letters. This turns on the IPC’s interpretation of the opening words of s. 12(1) and its application on these facts. The parties submit that this Court should review the IPC’s decision for reasonableness. We are not bound by that agreement as a “reviewing judge’s selection and application of the standard of review is reviewable for correctness” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47).
[16] We note, however, that the case was argued and decided by the courts below based on reasonableness review. Dissenting at the Court of Appeal, Lauwers J.A. raised, without deciding, serious questions as to whether the standard of review ought to be correctness in this case given the constitutional conventions and associated traditions and practices engaged by s. 12(1) (paras. 106-8). In this case, the same conclusion follows regardless of whether the standard of review is correctness or reasonableness. The narrow zone of protection for Cabinet deliberations created by the IPC’s interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness. In light of this conclusion and considering that the parties had not raised the issue of the applicable standard of review before this Court, it is not necessary to finally resolve the issue here. We therefore make no comment about the “thorny question” raised by Lauwers J.A. (at para. 108) and proceed on the basis of reasonableness review.
[17] Reasonableness review focuses both on the decision maker’s reasoning process and the outcome (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-84). A reasonable decision is “justified in relation to the constellation of law and facts that are relevant to the decision”; the legal and factual contexts thus “operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). Relevant contextual constraints may include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker . . .; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual” (para. 106).
[18] In conducting reasonableness review, reviewing judges must “be attentive to the application by decision makers of specialized knowledge” and “institutional expertise and experience” (para. 93; see also paras. 232-34). Judges must not reweigh and reassess the evidence considered by the decision maker, absent a fundamental misapprehension or failure to account for some aspect of the evidence (paras. 125-26). Reasonableness review thus entails deference to the decision maker, and, throughout, I examine the reasons offered by the IPC in light of the parties’ arguments and the context of the proceedings.
[19] The appellant Attorney General of Ontario submits the IPC’s decision was unreasonable on several bases, including: (1) the IPC’s interpretation of s. 12(1) is inconsistent with the purpose of the exemption to broadly protect Cabinet confidentiality, in line with tradition and constitutional convention; (2) the IPC unreasonably established a heightened test for s. 12(1) in requiring evidence that the Letters were connected to “actual Cabinet deliberations at a specific Cabinet meeting”; and (3) the IPC erred in concluding that the Letters were not exempt because they were “outcomes” of the Premier’s deliberative process, or mere “topics” and “subjects” of Cabinet meetings.
[20] The respondent CBC seeks to uphold the IPC’s decision, noting that the IPC was alive to the purpose of the exemption and reasonably concluded that disclosure of the Letters would not impair that goal. The CBC contends that the IPC’s decision did not turn on whether “actual” deliberations occurred at a “specific” Cabinet meeting. Rather, it was driven by a lack of evidence the Letters would disclose the substance of any deliberations at any Cabinet meeting. The CBC also argues that the IPC recognized that “outcomes” of a deliberative process may be exempt where they would permit accurate inferences to be drawn as to the substance of Cabinet’s deliberations, and reasonably found the Letters did not meet this test. As mandated by the statutory process, the CBC made its submissions without the benefit of viewing the Letters, which had been disclosed only to the IPC and reviewing judges in these proceedings.
[21] As I will explain, I agree with the Attorney General of Ontario that the Commissioner did not adequately grapple with the broader legal and factual context in interpreting s. 12(1). As a result, he unreasonably rejected the arguments of Cabinet Office as to the impact that disclosure of the Letters would have on Cabinet’s deliberative process. The legal and factual constraints operating on s. 12(1) implicate constitutional conventions and traditions governing Cabinet confidentiality and Cabinet’s deliberative process. Given the centrality of such traditions and conventions to the proper functioning of our democracy, it was vital that the IPC’s decision meaningfully consider this context. His failure to do so led him to an unreasonably narrow interpretation of s. 12(1) and caused him to mischaracterize the Letters themselves.
[22] I proceed by assessing the reasonableness of the IPC’s interpretation of s. 12(1) against the legislation and the legal backdrop of Cabinet confidentiality. I then assess the Commissioner’s characterization of the Letters, given the context advanced by Cabinet Office about the deliberative process and the role of the Premier.
A. The IPC’s Interpretation of Section 12(1)
[23] A reasonable decision is justified in relation to the salient aspects of the statute’s text, context, and purpose, in line with the modern principle of statutory interpretation (Vavilov, at paras. 117-22). A minor omission of some element of text, context, or purpose is unlikely to be a basis for finding the decision unreasonable. Still, a court will intervene where “the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker” (para. 122).
[24] In my view, the IPC’s decision demonstrates careful regard for the text of s. 12(1) — for example, noting the meaning of the words “substance”, “deliberations”, “including”, and “would” in the provision (paras. 9, 90-97 and 111). The IPC also noted FOI legislation’s general purpose of facilitating democracy (para. 106), and accounted for two of the purposes of Cabinet confidentiality: candour and solidarity (para. 87). But the IPC was not attentive to important legal context surrounding the exemption, which must inform the interpretation of its purpose and text. This omission led the IPC to an overly narrow interpretation of the exemption’s purpose and scope.
[25] The parties submit that the purposes informing the legislation were key considerations to the IPC’s interpretation of s. 12(1). FIPPA was enacted in 1987 based on recommendations made by the Ontario Commission on Freedom of Information and Individual Privacy, headed by Commissioner D. Carlton Williams, in 1980. As the IPC observed, FIPPA creates a general right of public access to government information, subject to necessary exemptions which are limited and specific (para. 107, citing s. 1(a)).
[26] The legislative context shows FIPPA’s Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality (see Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 21, 1st Sess., 33rd Parl., July 12, 1985, at pp. 753-55 (Hon. Ian G. Scott) (recognizing that FIPPA required “balanc[ing]” of competing interests and that the Cabinet records exemption protected “central institutions of representative government”)). In contemplating the enactment of FOI legislation in Ontario, the official report of the Williams Commission recognized that changes to access to government information practices had to be compatible with the province’s traditions and the constitutional conventions related to the effective functioning of Cabinet (Commission on Freedom of Information and Individual Privacy, Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy (1980) (Williams Report), at pp. 83 and 85).
[27] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution (A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 5; see also Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at p. 880). Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, th