Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4 (February 2, 2024)
Category: Selection of standard of review (general questions of central importance).
Context: From the Court’s headnote:
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.
Issue: (1) What is the standard of review? (2) Did the Commissioner’s interpretation of “substance of deliberations” satisfy the standard?
Holding: For a majority of 6, Karakatsanis J concludes that the standard of review is reasonableness, though “…the same conclusion follows regardless of whether the standard of review is correctness or reasonableness” [16]. She concluded that the Commissioner’s decision was unreasonable because he failed to consider the relevant “legal and factual constraints operating on s.12(1) which “implicate constitutional conventions and traditions governing Cabinet confidentiality and Cabinet’s deliberative process” [21]. Karakatsanis J declined to remit, because the “statutory text, purpose, and context lead inexorably to the conclusion that the Letters are protected from disclosure under s.12(1)…” [63].
Côté J concurred, but would have applied a correctness standard because the issue of the scope of Cabinet privilege is a “general question of law of central importance to the legal system as a whole” [65]. In addition, she faulted Karakatsanis J for conducting disguised correctness review, failing to afford appropriate deference to the Commissioner’s reasons [74.]
Analysis: I will put aside the general interpretive question—I generally agree with Lauwers JA and the unanimous Supreme Court that the “substance of deliberations” must be read broadly to encompass the letters. On standard of review, this case is like a jigsaw puzzle, but in the end, the pieces do not seem to fit in the majority opinion. Reading this case along with Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (see Issue #108), there seems to be a conceptual blurring between reasonableness and correctness review, based on the Court’s appreciation of the “importance” of the stated issue. Côté J is alive to this in her excellent—in my view, at least—opinion, insisting that reasonableness review is “methodologically distinct from correctness review [65, Vavilov, at para 12]. If it isn’t, then we could stop talking about standard of review, and acknowledge the possibility of one contextual reasonableness standard that is less categorical, as advocated by Abella J’s obiter remarks in Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 . To be clear, I prefer the distinction between reasonableness and correctness, and think it should be preserved; but it is easy to erode the distinction, which gives the impression that the whole thing is a shell game.
On the majority’s account, within the reasonableness standard, the legal and factual constraints operating on the decision “implicate constitutional conventions and traditions governing Cabinet confidentiality and Cabinet’s deliberative process” [21]. This indicates a broad scope for “context” under the reasonableness standard, to implicate systemic and constitutional norms that might, otherwise, fit into one or more correctness categories. Here, reasonableness review is prescribing one resolution, much like correctness review.
The other option, presented by Côté J, was more straightforward: apply the correctness standard, because Cabinet privilege is similar to solicitor-client privilege or parliamentary privilege, both of which have been considered “general questions of central importance” [69]. Both of these privileges have been recognized as having a quasi-constitutional character, as does Cabinet privilege [71]. As a result, applying the correctness standard makes sense, because Cabinet privilege—like its “cousin” parliamentary privilege—raises “a sweeping, transcendent point suffused with constitutional or quasi-constitutional principle” (see Portnov v Canada (Attorney General), 2021 FCA 171 (Issue #7)).
I use “cousin” intentionally because, as Philipe Lagasse notes in his excellent Substack newsletter “In Defence of Westminster”, Cabinet privilege can be seen as one of a triad of privileges that protect the scope of action for each branch of government (see also para 3 of the majority opinion). These privileges are related to a doctrine of the separation of powers [3]. They, by their nature, carry force beyond the immediate statute, given the status of the separation of powers as an organizing principle of the constitutional order.
By highlighting this very fact, Karakatsanis J seems to undermine her own holding. If Cabinet privilege is rationalized as a constitutive aspect of the separation of powers, the case for correctness review becomes stronger. The doctrine of the separation of powers both carries constitutional significance and, as Côté J demonstrates, transcends this FOI regime, and affects other FOI regimes across the country, even touching the Canada Evidence Act [70]. Because Cabinet privilege fulfills each of the conditions—constitutional or quasi-constitutional significance and transcending the immediate stautory regime— it is a matter that should fall to correctness review (see, again, Portnov, at para 17).
The failure to recognize correctness review in these circumstances seems to back Karakatsanis J into a corner. All judges agree with Lauwers JA in the ONCA that the “ ‘substance of deliberations’ encompasses Cabinet’s deliberative process from beginning to end, including directive and policy priorities communicated by the Premier to individual ministers” [75, see Lauwers JA at para 94 in the ONCA decision]. On Côté J’s view, this should be the end of the matter on the correctness standard—the Commissioner adopted an incorrect view of Cabinet privilege. But because Karakatsanis J cannot rely on this standard, but nonetheless agrees that the term “substance of the deliberations” is broadly protective of Cabinet’s deliberative process, she must closely parse the Commissioner’s reasons to get to the conclusion; and, as if applying correctness review, she declines to remit.
For that reason, her parsing leads to her fault the Commissioner for failing to properly consider a particular definition of Cabinet privilege. Despite admitting that “the Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality” [7], Karakatsanis J faults the Commissioner for not addressing one aspect of Cabinet privilege, informed in part by academic views (see para 76 of Côté J’s reasons). And this is in the face, in Côté J’s view, of relatively cogent reasons by the Commissioner (see para 81).
This leads to the larger point about the methodological distinction between reasonableness and correctness review. Seeing the quasi-constitutional concept of the separation of powers as simply a part of the context, Karakatsanis J adopts the reasonableness standard. This same thinking seemed to inform Mason, in which the international law issue was raised and decided by the Court de novo (see Klos v Canada (Attorney General), 2023 FCA 205); and even, perhaps, Commission scolaire, 2023 SCC 31 (Issue #117) in which Charter values—imposing a procedural duty of consideration, supposedly assessed under reasonableness review—can be reweighed by the Court on judicial review. All of this is happening under reasonableness review, even though the actual review is functionally similar to correctness review. If this is how the review is conducted, why not just call it what it is—correctness review?
It is true that, sometimes, reasonableness review can prescribe only one resolution. But in these cases, there is usually no clear option for correctness review. One can be forgiven for thinking that, when correctness review is conducted under the guise of reasonableness, standard of review is a shell game. The result of trying to force these issues into the reasonableness standard suggests a fear of correctness review in appropriately limited circumstances. This is not to say Mason, raising a question of international law, was a case of correctness review—quite the opposite, in fact, which is why Jamal J’s willingness to decide the issue de novo in the case is at least odd, though the IRPA itself may prescribe this outcome (see Klos at para 8, suggesting that Mason cannot be taken to permit de novo review in this manner). Ideally, the intensity of review should not turn on the Court’s own appreciation of the importance of the issue, without due regard for the established Vavilov framework. In this case, recognizing Cabinet privilege as a general question of central importance reinforces the separation between standards of review. But this view did not carry the day, and “context” under the reasonableness standard is doing much heavy lifting.
Anderson v Strathcona (Regional District), 2024 BCCA 23 (January 24, 2023)
Category: Selection of standard of review (general questions).
Context: From the Court’s summary:
The appellant appeals a judicial review upholding the board of directors of the respondent’s decisions to censure her for disclosing confidential board information to her lawyer and declining to indemnify her for legal costs reasonably incurred in defending a petition to disqualify her from holding office.
Issue: (1) What is the standard of review? (2) On the substance, the question is whether the Board’s censure decision was incorrect because it violated s.117 of the Community Charter, which requires council members to keep council records in “confidence” (ie) does “confidence” prevent sharing with a lawyer?
Holding: (1) On standard of review, the Court concludes that “whether a director breaches their duty under the Community Charter…by disclosing confidential Board information to a lawyer to obtain personal legal advice raises a general question of law of central importance to the legal system” [67]. The Court, therefore, applies the correctness standard.
The Court also concludes that s.117 does not preclude a Board member from disclosing confidential Board information to their own lawyer to obtain personal legal advice without prior authorization.
Analysis:
This cases raises, yet again, the tricky category of “general questions of central importance.” It is true that, under Vavilov, the scope of solicitor-client privilege was recognized as an established question subject to correctness under this category. But this is not the ground on which the Court, in this case, applies the correctness standard [68]. Rather, for the Court, the question is whether s.117 limits a director’s right to obtain legal advice at all, which implicates full and ready access to the legal system, attracting correctness review [68-69].
I’m not so sure this follows, and given that this is a close call, I prefer to preserve Vavilov’s recognized boundaries in the name of doctrinal stability. This issue does not carry the same constitutional significance that say, Cabinet privilege, might. The Court therefore must rest its conclusion on the potential impact of this question on other contexts and in other statutes. However, I fear the Court fell into the trap that Vavilov identified: we cannot identify a question of central importance simply by framing it in a “general or abstract sense” so that it “touches in an important issue” (Vavilov, at para 61). It is true that, in a general sense, whether an individual can properly access legal advice is a deeply important issue. But the question, in my view, is narrower: it is whether the resolution of this legal question—what “confidentiality” means in this statutory context— will necessarily impact other statutory regimes. What it means to “keep something in confidence” might be necessarily conditioned differently in different statutory regimes. The same phrase may arise in different statutes with different purposes, or altered by different textual indications, which could change the nature of the question. At the very least, one cannot analogize this to solicitor-client privilege, making this a close call.
No matter the standard, the Court’s statutory interpretation analysis is convincing. Looking to the text, context, and purpose, the Court concludes that s.117 only shields information from public disclosure, which means that disclosure to a lawyer does not fall within s.117. Here, the text is relatively prescriptive: since “[c]onfiding in a lawyer does not involve public disclosure of any kind,” one can keep the information “confidential” for the purposes of the statute even if disclosing to a lawyer [89]. And this links to the purpose of the provision. Its purpose is to “enable municipal governments to function effectively,” it would not be stymied by permitting an individual to obtain legal advice [92].
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.