Attorney General for Ontario v. Information and Privacy Commissioner and Canadian Broadcasting Corporation

COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Ontario (Information and Privacy

Commissioner), 2022 ONCA 74

DATE: 20220126

DOCKET: C69150

Gillese, Lauwers and Sossin JJ.A.

BETWEEN

Attorney General for Ontario

Applicant (Appellant)

and

Information and Privacy Commissioner and Canadian Broadcasting Corporation

Respondents (Respondents)

Judie Im and Nadia Laeeque, for the appellant

Justin Safayeni and Spencer Bass, for the respondent Canadian Broadcasting

Company

William S. Challis, for the respondent Information and Privacy Commissioner

Daniel Sheppard, for the interveners Centre for Free Expression, Canadian

Journalists for Free Expression, The Canadian Association of Journalists,

Aboriginal Peoples Television Network, and News Media Canada

Heard: August 31, 2021 by video conference

On appeal from the order of the Divisional Court of Justices Swinton, Penny and

Kristjanson, dated August 27, 2020, with reasons reported at 2020 ONSC 5085,

affirming the decision of the Information and Privacy Commissioner, dated on

July 15, 2019, with reasons reported at PA18-390.

Page: 2

Sossin J.A.:

A. OVERVIEW

[1]

At issue in this appeal is whether the public is entitled to access the mandate

letters provided to Cabinet ministers by the Premier of Ontario following the

formation of the new government after the 2018 provincial election.

[2]

A journalist with the CBC requested access to the 23 letters sent by the

newly elected Premier, Doug Ford, to Ontario’s Cabinet ministers who, together

with him, comprise the Executive Committee, commonly known as the Cabinet.

[3]

Cabinet Office refused the CBC’s request. The CBC appealed the refusal to

the Information and Privacy Commissioner of Ontario (the “IPC”). Mediation did

not resolve the issues and so the parties proceeded to the adjudication stage,

where they engaged in a lengthy process of written submissions.

[4]

The Cabinet Office opposed disclosure of the letters on the basis of the

Cabinet privilege exemption under s. 12(1) of the Freedom of Information and

Protection of Privacy Act, R.S.O. 1990, c. F.31. By Order PO–3973; Cabinet Office

(Re), [2019] O.I.P.C. No. 155, the Commissioner, Brian Beamish, ordered the

letters to be disclosed to the requester, the CBC.

[5]

The Divisional Court dismissed the Attorney General for Ontario’s

application for judicial review of the IPC Order, who now appeals to this court.

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[6]

Aside from the AG Ontario and CBC, this court heard submissions from the

IPC on issues relating to the standard of review, the IPC process and the principles

governing the interpretation of the Act. This court also heard submissions by a

coalition of media and free-expression organizations as interveners. They

appeared to help illustrate how the IPC’s approach protects cabinet deliberations

and upholds the public right of access. The interveners Centre for Free Expression,

Canadian Journalists for Free Expression, The Canadian Association of

Journalists, and Aboriginal Peoples Television Network presented submissions

before the Divisional Court and were granted leave to intervene before this Court,

with the addition of News Media Canada.

[7]

For the reasons that follow, I would dismiss the appeal.

The Legislation

[8]

Section 12(1) of the Act is particularly at issue in this appeal. It provides:

12(1) A head shall refuse to disclose a record where the disclosure

would reveal the substance of deliberations of the Executive Council

or its committees, including:

a. an agenda, minute or other record of the deliberations or

decisions of the Executive Council or its committees;

b. a record containing policy options or recommendations

submitted, or prepared for submission, to the Executive

Council or its committees;

c. a record that does not contain policy options or

recommendations referred to in clause (b) and that does

contain background explanations or analyses of

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problems submitted, or prepared for submission, to the

Executive Council or its committees for their

consideration in making decisions, before those

decisions are made and implemented;

d. a record used for or reflecting consultation among

ministers of the Crown on matters relating to the making

of government decisions or the formulation of

government policy;

e. a record prepared to brief a minister of the Crown in

relation to matters that are before or are proposed to be

brought before the Executive Council or its committees,

or are the subject of consultations among ministers

relating to government decisions or the formulation of

government policy; and

f. draft legislation or regulations.

The Procedural History

Cabinet Office provided the IPC with a copy of the Cabinet agenda that

[9]

indicated the Letters were distributed on July 11, 2018.

[10] In detailed reasons, the IPC determined that the Letters did not fall within

the exclusion set out in s. 12(1) of the Act. With respect to the content of the

Letters, the IPC found:

[79] The mandate letters are directives from the Premier

to each of his ministers. They contain general statements

about the government’s overall priorities and provide

guidance to each minister as to each ministry’s priorities

and his or her own role.

[11] The IPC stated that the opening words of s. 12(1) required Cabinet Office to

provide sufficient evidence to establish a link between Cabinet deliberations and

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the content of the mandate letters, which are the records in issue. That is, if a

record does not appear in the list from sub-paras. (a) to (f), s. 12(1) applies only if

the record permits accurate inferences regarding actual Cabinet deliberations. It is

not enough that the documents reveal the outcome of those deliberations; they

must reveal its substance.

[12] The IPC found no evidence that the records were tabled at a Cabinet

meeting or that their contents were the subject of Cabinet deliberations. Even the

agenda provided by the Cabinet Office did not indicate that the Letters were tabled

for discussion. The Letters did not assess the reasons for or against a particular

course of action, nor did they outline the views, opinions, thoughts, or ideas of

cabinet members. Consequently, the Cabinet Office failed to show that the Letters

would reveal the substance of any Cabinet deliberations.

[13] The Divisional Court found the IPC’s decision to be reasonable. It

characterized the case as an application of well-settled principles to particular

facts. In the court’s view, the IPC used the absence of deliberation about the letters

as evidence that s. 12(1) did not apply, not as a means to narrow the scope of the

exclusion. Since the Letters did not disclose or invite any deliberation from Cabinet,

the IPC’s conclusion that they did not meet the exception in the opening words of

s. 12(1) was reasonable. Further, the Divisional Court found that the IPC did not

apply an unreasonably stringent test by requiring Cabinet Office to show that the

Page: 6

Letters would be placed before specific Cabinet meetings in the future. The IPC

simply found that the Cabinet Office had not discharged its burden to prove a link

between the Letters and the substance of future Cabinet deliberations.

B. DETAILED BACKGROUND

The Media Request

[14] The CBC made an access request to Cabinet Office under the Act for a copy

of each of the Letters sent by the premier to Cabinet Ministers for all of Ontario’s

22 ministries, and two non-portfolio responsibilities.

The Cabinet Office Response

[15] Cabinet Office denied the CBC access in full to the Letters, claiming the

application of the mandatory exemption in s. 12(1) of the Act (Cabinet records).

[16] Cabinet Office described the Letters in the following terms:

Mandate letters are customarily the first communication

to ministers through which the Premier translates party

values and policy priorities into a plan of action for the

government. For this reason, mandate letters outline the

key policy priorities of the Premier that each minister is

responsible for leading. Policy priorities are assigned to

each minister based on the operational and/or statutory

mandate of their ministry.

In addition, mandate letters can include advice,

instructions and guidance to each minister in carrying out

his or her ministerial duties and responsibilities. This

guidance is often placed in the context of the values that

are important to the Premier and party.

Page: 7

Each member of the Executive Council who receives a

mandate letter is accountable to the Premier and his or

her Cabinet colleagues for assisting the government to

achieve the priorities and objectives described in that

letter.

[17] Cabinet Office asserted that s. 12(1) applies “where records reflect the

policy-making and priority setting functions” of the Premier.

[18] Cabinet Office submitted that the Letters were distributed to the Ministers at

a July 11, 2018, meeting and took the position that disclosure of the Letters would

reveal deliberations that took place in relation to the Letters at that Cabinet

meeting.

[19] Cabinet Office also submitted that the Letters included “the substance of

deliberations of Cabinet” because the deliberations of the Premier, when setting

policy priorities for Cabinet, are inherently part of Cabinet’s deliberative process.

Cabinet Office further submitted that the Letters are exempt from disclosure

because they would reveal the substance of future deliberations of Cabinet.

The IPC Decision

[20] The IPC rejected Cabinet Office’s argument that the Letters were exempt

because they reflected the Premier’s policymaking and priority setting functions.

[21] The IPC reviewed evidence regarding the preparation of previous mandate

letters made publicly available in Ontario and elsewhere in Canada, and

concluded, “[t]his evidence contradicts the view that disclosure of letters of this

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nature would impinge on Cabinet deliberations; and I find no material difference in

the nature of letters in issue before me to suggest a different result in this case.”

[22] The IPC found no evidence to support Cabinet Office’s position that the

Letters would reveal prior deliberations by the Premier or Cabinet Ministers, that

they were discussed at a meeting of Cabinet, or that the Letters would be the basis

of discussion at future Cabinet meetings.

[23] After reviewing the submissions by the parties in detail, the IPC made the

following findings of fact:

a. There is nothing on the face of the Letters or in the representations of

Cabinet Office to indicate that the Letters themselves were intended to

serve, or did serve, as Cabinet submissions or as the basis for

discussions by Cabinet as a whole: at para. 113.

b. Cabinet Office provided no evidence that the Letters were themselves,

in fact, discussed at the Cabinet meeting when they were provided to

each minister or that they were tabled or made generally available for

discussion: at para. 114.

c. There is no evidence that the Letters were distributed to Cabinet as a

whole at that time or that any specific contents of the Letters were

actually the subject of the deliberations of Cabinet: at para. 114.

d. The Letters do not reveal any discussions weighing or examining the

reasons for or against a course of action with a view to making a

decision: at para. 115.

e. The Letters do not reveal any views, opinions, thoughts, ideas and

concerns expressed by Cabinet members in the course of the

deliberative process: at para. 115.

Page: 9

f. The Letters do not provide insight into the substance of any specific

deliberations that may have occurred among Cabinet ministers: at

para. 115.

g. There is no evidence that the Letters themselves would be placed before

Cabinet in future meetings: at para. 116.

h. The Letters do not reveal the substance of any material upon which

Cabinet members will actually deliberate in the future and do not reveal

the substance of any such future deliberations: at para. 119.

i. There is no persuasive evidence that disclosure would give rise to a

chilling effect on Cabinet deliberations: at para. 123.

j. The Letters do not reveal the substance of the Premier’s deliberations

but, rather, the product of his deliberations: at para. 134.

[24] Based on these findings of fact, the IPC held that s. 12(1) did not apply to

the records at issue, and ordered Cabinet Office to disclose the letters to the

appellant.

The Divisional Court Decision

[25] Assessing the IPC decision on a reasonableness standard, the Divisional

Court dismissed the application for judicial review brought by the AG Ontario.

[26] Writing for the Divisional Court, Penny J. explained that the Decision was

largely fact-based, and resulted from the absence of evidence led by the

AG Ontario that the Letters fell within the terms of s. 12(1) of the Act:

[24] I cannot agree with the Attorney General that there

is any fundamental error in the interpretation of the Act.

In my view this is entirely a case of the application of well-

settled principles to the particular facts. The burden of

proof was undeniably on the government to demonstrate

that the Letters fell within the s. 12(1) exemption. The

Page: 10

government chose to enter as evidence only the Letters

themselves and a heavily redacted copy of the agenda

for the meeting at which the Letters were, apparently,

delivered. The IPC simply held that, on this record, the

government had failed to satisfy its evidentiary burden.

This is a sufficiency of evidence case, nothing more.

[27] Throughout its decision, the Divisional Court relied on the IPC’s findings on

the record to determine that the IPC Decision was reasonable. For example, with

respect to whether the Letters were discussed at a Cabinet meeting, the Divisional

Court held:

[37] As is often said, inferences must be grounded in

evidence from which the suggested inference may

reasonably be drawn. Inferences unsupported by

evidence, or which do not reasonably follow from the

established facts, are mere speculation.

[38] Regarding the meeting agenda itself, the subject of

the Letters does not appear in the numbered list of

agenda items (there are seven, all completely redacted).

Rather, reference to the Letters appears at the end of the

agenda under a heading “Chair Notes: Mandate Letters”.

[39] Nothing about the content of this Note supports an

inference that the mandate Letters were discussed at the

Cabinet meeting. Rather, if anything, the content of the

Note suggests the opposite.

[40] As noted earlier, the Letters themselves do not

suggest they are drafts subject to negotiation or in any

way invite dialogue about their content. While it may be

true that some of the mandates identified would likely

require a return to Cabinet at some future time, this is

nowhere specified or contemplated.

[41] In these circumstances, there was a clear evidentiary

basis to reject the Attorney General’s argument that it

Page: 11

was “reasonable to expect” certain unspecified aspects

of the Letters “would have” been discussed at the initial

Cabinet meeting. The IPC’s decision to do so was not

unreasonable.

[28] With respect to whether the Letters would reveal deliberations of future

Cabinet meetings, the Divisional Court held:

[49] Again, the IPC based this conclusion on an

assessment of the evidence. The IPC simply found that

the Cabinet Office had not discharged its burden to prove

a link between the Letters and the substance of future

Cabinet decisions. Given the paucity of evidence

provided by the Cabinet office, this was not an

unreasonable conclusion.

[29] Finally, the Divisional Court rejected the AG Ontario submission that it was

unreasonable for the IPC to require “stringent” evidence from Cabinet Office to

support the argument that the Letters fell within the scope of s. 12(1) of the Act.

On this point, writing for the court, Penny J. stated:

[55] There is no merit to the Attorney General’s argument

on this issue. The IPC clearly recognized, and applied,

the correct standard of proof – it was the government’s

onus to demonstrate that it met the requirements to come

within the s. 12(1) exemption on a balance of

probabilities. The Attorney General’s submission

amounts to no more than an invitation for this Court to re-

weigh the evidence and overturn the findings of the IPC

with which the Cabinet Office disagrees. The IPC

identified the correct legal principles, applied them to the

interpretation of the opening words of s. 12(1), reviewed

the record and the submissions before him in light of that

legal test and explained the basis for his decision in

thorough and cogent reasons. There was nothing

Page: 12

unreasonable about the IPC’s approach to or conclusions

on the standard of proof.

C.

ISSUES ON APPEAL

[30] The AG Ontario raises the following three issues in this appeal:

a. The IPC erred in exercising the statutory authority to grant a right of

access that is inconsistent with the purposes of the Act and the Cabinet

records exemption;

b. The IPC erred in exercising the statutory authority to grant a right of

access based on an erroneous interpretation of s. 12(1) of the Act; and

c. The IPC erred in exercising the statutory authority to grant a right of

access based on an erroneous injection of a balancing test into s. 12(1)

of the Act.

[31] Each issue is addressed below.

D.

ANALYSIS

The Standard of Review

[32] On an appeal from an order of the Divisional Court concerning an application

for judicial review of an administrative decision, this court must determine whether

the Divisional Court identified the appropriate standard of review and applied it

properly. In order to make this determination, the court “steps into the shoes” of

the Divisional Court: see e.g., Canadian Federation of Students v. Ontario

(Colleges and Universities), 2021 ONCA 553, at para. 20; Longueepee v.

́

University of Waterloo, 2020 ONCA 830, 153 O.R. (3d) 641, at paras. 47-48,

Page: 13

applying Agraira v. Canada (Minister of Public Safety and Emergency

Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46.

[33] The AG Ontario submits that, in upholding the IPC’s interpretation of s.12(1)

of the Act, the Divisional Court failed to conduct a sufficiently “robust”

reasonableness review as required by the Supreme Court in Canada (Minister of

Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.

[34] I do not accept this submission.

[35] The Divisional Court acknowledged Vavilov as its point of departure for

reviewing the reasonableness of the IPC decision. In identifying reasonableness

as the standard of review, the Divisional Court stated, at para. 17:

Reasonableness is the appropriate standard of review in

this case. The reasonableness review finds its starting

point in judicial restraint and respects the distinct role of

administrative decision-makers.

[36] I see no error in the Divisional Court’s approach to the standard of review.

The IPC’s exercise of statutory authority to grant a right of

access was consistent with the purposes of the Act and the

Cabinet records exemption

[37] The IPC described his approach to the interpretation of s. 12(1) as protective

of communications within Cabinet’s deliberative process that would reveal the

substance of its formulation of government policies.

Page: 14

[38] The IPC emphasized, however, that without additional evidence or context

showing how the Letters would reveal the substance of deliberations, the

introductory words of s. 12(1) did not shield the policy choices themselves.

[39] The Divisional Court approached the issue as to the proper interpretation of

s. 12(1) as one on which the parties agreed:

[19] It is also accepted by the parties and the IPC that in

order for the exemption under s. 12(1) to apply,

disclosure of the record must “reveal the substance of

deliberations” of Cabinet or “permit the drawing of

accurate inferences” about past or future Cabinet

deliberations. It is also accepted that the use of the term

“including” in the introductory words of s. 12(1) means

that any record which would reveal the substance of

deliberations or permit the drawing of accurate

inferences qualifies for the exemption; the specifically

enumerated categories of record in subparagraphs (a) to

(f) must be interpreted as providing an expanded

definition of, or at the very least the removal of any

ambiguity about, the types of records that are exempt

from disclosure.

[40] The AG Ontario takes issue with this characterization. It argues that the IPC

erred by taking a narrow and restrictive view of the opening words of s. 12(1)

inconsistent with the purposes of the Act and of the Cabinet records exemption.

[41] The AG Ontario argues that s. 12(1) should be read in concert with the

specific examples of exclusions set out in the subparagraphs (a) through (f), and

in particular “(a) an agenda, minute or other record of the deliberations or decisions

of the Executive Council or its committees.”

Page: 15

[42] The AG Ontario submits that the use of the term “including” in the

introductory portion of s. 12 makes clear that the records set out in the

subparagraphs constitute records whose “disclosure would reveal the substance

of deliberations of the Executive Council or its committees.” It characterizes this

interpretive approach as the “illustrative approach.” Therefore, s. 12(1) exempts

the Letters from disclosure by analogy to the records described in subparagraphs

(a) to (f).

[43] In contrast, the CBC, in supporting the approach taken by the IPC as

reasonable, characterized the proper approach to the interpretation of s. 12(1) as

the “expansive approach.” Under the expansive approach, the use of the term

“including” in s. 12(1) indicates that the records specified in the following

subparagraphs expand on the general language in the introductory portion of

s. 12(1) by setting out records which, while not necessarily revelatory of the

deliberations of Cabinet or its committees, may be so in certain circumstances and

are, therefore, exempt from disclosure. Consequently, CBC argued that the letters

fall outside of s. 12(1)’s scope because they do not reveal the substance of Cabinet

deliberations or meet any of the expanded categories set out in subparagraphs (a)

to (f).

[44] As both the CBC and IPC note in their submissions, the expansive approach

is in keeping with a long line of decisions by the IPC dealing with exemptions under

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s. 12(1). For example, in Order P-266, [1991] O.I.P.C. No. 10, at p. 7, the IPC

explicitly stated that the “use of the word ‘including’ in subsection 12(1) of the Act

[sic] should be interpreted as providing an expanded definition of the types of

records which are deemed to qualify as subject of the Cabinet records exemption,

regardless of whether they meet the definition found in the introductory wording of

subsection 12(1)”: citing Order 22, [1988] O.I.P.C. No. 22 (emphasis added).

[45] Indeed, the IPC has used the same words to describe s.12(1) since Order

P-901, [1995] O.I.P.C. No. 148. In that decision, at p. 4, the IPC stated:

[T]he use of the term "including" in the introductory

wording of section 12(1) means that the disclosure of any

record which would reveal the substance of deliberations

of the Executive Council or its committees (not just the

types of records listed in the various parts of

section 12(1)), qualifies for exemption under section

12(1).

[46] Other orders have held that a record which has never been placed before

an Executive Council or its committees may nonetheless qualify for exemption

under the introductory wording of s. 12(1): see e.g. Interim Order PO-1742-I, [2000]

O.I.P.C., at para. 36; Order PO-2707; Ministry of Education, [2008] O.I.P.C.

No. 166, at para. 26. This result will occur where a government organization

establishes that the disclosure of the record would reveal the substance of

deliberations of an Executive Council or its committees, or that its release would

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permit the drawing of accurate inferences with respect to the substance of

deliberations of an Executive Council or its committees.

[47] As the Divisional Court highlighted, the subparagraphs of s. 12(1) “clarify

that the exemption applies to specific types of records that might otherwise be

thought to fall outside the opening words”: at para. 27.

[48] The IPC’s Order P-901 further stands for the proposition that s. 12(1) is not

limited to its subparagraphs. Any record can fall under the Cabinet records

exemption so long as it would reveal the substance of deliberation of an Executive

Council or its committees, or permit the drawing of accurate inferences.

[49] While previous IPC decisions do not bind the IPC in relation to future

interpretations of s.12(1), the IPC’s consistency in its approach to its governing

statute may be taken as an indicator of the reasonableness of this decision. As the

Supreme Court stated in Vavilov:

[129] Administrative decision makers are not bound by

their previous decisions in the same sense that courts are

bound by stare decisis. As this Court noted in Domtar, “a

lack of unanimity is the price to pay for the

decision-making freedom and independence” given to

administrative decision makers, and the mere fact that

some conflict exists among an administrative body’s

decisions does not threaten the rule of law: p. 800.

Nevertheless, administrative decision makers and

reviewing courts alike must be concerned with the

general consistency of administrative decisions. Those

affected by administrative decisions are entitled to expect

that like cases will generally be treated alike and that

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outcomes will not depend merely on the identity of the

individual decision maker — expectations that do not

evaporate simply because the parties are not before a

judge. [Citations omitted.]

[50] Even if this interpretation of s.12(1) were not long-standing, in my view, the

IPC would be acting reasonably in adopting it. The use of the term “including” prior

to setting out the ss. 12(1)(a) to (f) is ambiguous.

[51] In the face of ambiguous wording, the obligation on an administrative

decision-maker is to provide a reasoned explanation for the interpretation adopted

that is alive to the text, context and purpose of the provision; Vavilov, at para. 120.

The IPC has done this.

[52] The IPC’s approach to s. 12(1) is also consistent with the general purpose

of the Act, which is to “provide a right of access to information under the control of

institutions in accordance with the principles that…necessary exemptions from the

right of access should be limited and specific”. This is a point underscored by the

interveners, who argue that provisions of the Act which exempt access should

generally be interpreted narrowly.

[53] Before moving to the IPC’s exercise of statutory authority, I will briefly

address two of the AG Ontario’s arguments which were not put before the IPC.

[54] First, the AG Ontario points to the French translation of the term “including”

in the Act, which is “notamment,” as opposed to “en outre.” The AG Ontario argues

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that, in other statutory settings, “en outre” is used to indicate an expansive rather

than inclusive set of specified subsections.

[55] As the AG Ontario could have, but did not make this argument before the

IPC, it should not be determinative of a finding that the IPC acted unreasonably in

its interpretation: see Alberta (Information and Privacy Commissioner) v. Alberta

Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 22-26.

[56] However, even if it had been argued earlier, the French version of the

provision is not conclusive of a particular, proper interpretation of s. 12(1) of the

Act. The French dictionary definitions of “notamment” and “en outre” both refer to

“including”. Thus, neither rule in nor rule out either interpretive approach.

[57] Second, the AG Ontario raised the legislative history of s. 12(1), and the fact

that, in the debates surrounding draft legislation preceding the Act, the legislature

rejected a proposal to use the term “solely” rather than “including” to limit the

exemption to specific records. The AG Ontario argues that this aspect of the

legislative history provides further support for the illustrative approach.

[58] Again, this legislative history argument was not before the IPC. In any event,

this argument also fails to establish that the IPC’s adoption of the expansive

approach was unreasonable. While the legislative history establishes that the term

“solely” was not adopted, it does not lead to the conclusion that the term “including”

is capable of only one reasonable interpretation.

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[59] In my view, the AG Ontario has failed to establish that the IPC’s

interpretation of s. 12(1) was unreasonable, and that the Divisional Court erred in

finding the IPC’s interpretation reasonable.

The IPC’s exercise of its statutory authority under s. 12(1) of the

Act was reasonable

[60] The AG Ontario argues that the IPC’s decision to order disclosure of the

Letters was unreasonable as the letters represented “decisions” of the Premier

which would reveal the substance of the deliberations leading up to these

decisions. In its factum, the AG Ontario describes the Letters in the following terms:

[23] The Letters are a way by which this Premier has

chosen to discharge his constitutional duties as first

minister to develop and prioritize the policies and

operational agenda of the new government. The Letters

represent the first communication to the ministers from

the Premier to establish policy priorities and a plan of

action for their development and implementation over the

term of the current government.

…

[25] In addition to setting out the policy priorities of the

new government, the Letters also include opinion,

advice, instructions and guidance from the Premier to the

newly appointed ministers as to how to carry out their

new ministerial duties and responsibilities. Each member

of the Executive Council who received a Letter is

accountable to the Premier and their other Cabinet

colleagues for assisting the government in achieving the

policy objectives described in the Letters.

Page: 21

[61] The CBC takes the position that the AG Ontario has failed to lead any

evidence that the disclosure of the Letters would reveal the substance of

deliberations, either the Premier’s or Cabinet’s.

[62] Beside the Letters themselves, the AG Ontario relies on the agenda for the

July 11, 2018 Cabinet meeting, which refers to the distribution of the mandate

letters as a “Chair note.”

[63] As noted above, the AG Ontario argued before the IPC that the Letters meet

the threshold for excluded records under s. 12(1) of the Act on three grounds:

a. the Letters disclosed the deliberations of the Premier in setting Cabinet’s

policy priorities which are inherently part of the deliberative process of

Cabinet;

b. the Letters were the subject of deliberations at the meeting of Cabinet

where the letters were placed on the agenda; and

c. the deliberations at future Cabinet meetings where the policy priorities

set out in the letters would be further discussed.

[64] With respect to AG Ontario’s second argument and the reference to Letters

in a Cabinet agenda, the IPC’s interpretation of s. 12(1) precluded the argument

that all matters on a Cabinet agenda were presumptively excluded. Such a finding

might flow from the illustrative approach to the subsection s. 12(1)(a) to (f), and the

reference specifically in s. 12(1)(a) to “an agenda, minute, or other record of the

deliberations or decisions of the Executive Council or committees” (emphasis

added). However, the IPC rejected this approach.

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[65] Similarly, the IPC found no evidence to support AG Ontario’s first and third

arguments. The IPC reiterated that the mere stating of a policy priority does not

reveal the deliberations leading to that outcome.

[66] The IPC found that the AG Ontario provided no evidence that the Letters

were actually discussed at the Cabinet meeting where their distribution was

referenced in the agenda. Further, the IPC found that there was no evidence

offered for the assertion that the Letters were tabled for future discussion by

Cabinet.

[67] The IPC also found no basis for the argument that the Letters themselves

revealed the deliberations of the Premier.

[68] The AG Ontario argued before the IPC that the Premier’s articulation of

policy priorities represented a step in Cabinet’s deliberative “continuum” and

should not be seen as the culmination of the government’s policy decision-making.

According to the AG Ontario, the deliberative process of the Executive Council

continues once the Premier establishes and communicates his policy priorities to

ministers through the Letters. The policy priorities will involve further deliberation

and decision-making by Cabinet in future.

[69] The IPC accepted that, where a record discloses deliberations by the

Premier, this record may be exempted under s. 12(1). In other words, IPC

recognized the distinct role of the Premier in relation to Cabinet. But the IPC

Page: 23

rejected the AG Ontario’s view of the deliberative process as unduly broad. In its

decision, the IPC stated:

[121] The submission advanced by Cabinet Office that

the mandate letters “open the dialogue” and initiate a

continuum of the deliberative process as a “blueprint” for

future Cabinet discussions suffers from the same

deficiency. I am asked to accept that deliberations on

“nearly all” of the policy initiatives would take place at

some point in future Cabinet meetings. I am also asked

to find that section 12(1) applies to policy initiatives that

may never return to Cabinet at all or that may be altered

or amended in significant and unspecified ways. With

respect, Cabinet Office has it backwards. I must be

satisfied on the evidence of the likelihood that that

disclosure of the letters “would reveal” or, at a minimum,

permit accurate inferences to be drawn concerning the

substance of future Cabinet deliberations.

[122] That is not to say that deliberations will not ensue a

later date in relation to the subject matter of certain

priorities. However, any such deliberations would be in

relation to proposals or other materials yet to be

developed by individual ministers and later brought

before Cabinet. Such materials, when developed, may

well reveal the substance of future Cabinet deliberations

if and when they occur. However, the evidence before me

does not establish that disclosure of the mandate letters

themselves will permit accurate inferences to be drawn

in that respect. At most, Cabinet Office’s submissions

indicates that the subject matter of future deliberations

may be revealed by disclosure.

[70] On the question of the “continuum” approach to disclosure of deliberations,

Penny J. stated:

[29] As to the Attorney General’s “continuum” argument,

the introductory words of s. 12(1) do not protect all

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records leading up to any particular government decision;

they protect the substance of deliberations of Cabinet

(which includes, as found previously by the IPC, the

Premier’s deliberations in setting Cabinet’s priorities).

The Letters, on their face however, do not disclose or

invite any deliberative process. The Cabinet Office’s own

submissions describe the Letters as “the culmination of

an extensive deliberative process by the Premier [that]

reflect his/her determination, as first minister, of the

priorities of the new government”. In the absence of any

other evidence, the IPC’s conclusion that the Letters do

not disclose deliberative processes was a reasonable

one. [Emphasis in original.]

[71] The IPC also considered its own previous decisions with respect to the role

of the Premier’s Office. In Order PO-1725, [1999] O.I.P.C. No. 153, the IPC

considered a request for a scheduling book prepared by a Premier Office senior

staff member. After a lengthy review of the Premier’s role and the importance of

his or her staff, the IPC concluded that the records fell under s. 12(1).

[72] In this case, the issue for the IPC was not whether records which disclose

the deliberations of the Premier are caught by the exclusion under s. 12(1), but

rather whether the Letters and the agenda constitute sufficient evidence that the

deliberations of the Premier would be revealed by disclosure of the Letters.

[73] On this point, at para. 132, the IPC found on the record before him that the

“disclosure of the policy initiatives in the mandate letters would not provide any

insight into the deliberative considerations or consultative process by which the

Premier arrived at them.”

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[74] For the Divisional Court, Penny J. distinguished the IPC Order PO-1725 as

well, stating, at para. 31:

The decision of the IPC in Order PO – 1725 does not

support the Attorney General’s argument. Again, this is

on essentially factual and evidentiary grounds. In Order

PO – 1725, the IPC found that the Premier’s

“consultations with a view to establishing Cabinet

priorities are an integral part of Cabinet’s substantive

deliberative process” and that the records reflecting

those “consultations” constitute the “substance of

deliberations”. It was this deliberative or consultative

aspect of the Premier’s priority-setting process which lay

at the heart of the IPC’s decision in that case. There is no

evidence of any such consultative or deliberative process

in establishing the Premier’s priorities here. In fact, in

Order PO – 1725, the IPC specifically found that (apart

from the formal agenda document itself) the subject

matter of items considered or to be considered by

Cabinet will not “normally be found to reveal the

substance of Cabinet deliberations, unless either the

context or other additional information would permit the

reader to draw accurate inferences” as to actual

deliberations which took place at a particular Cabinet

meeting. [Emphasis added.]

[75] I agree with the IPC and the Divisional Court. The scheduling book at issue

in Order PO-1725 was far closer to the Premier’s deliberative process than the

Letters at issue here. The scheduling book contained “references to particular Bills

or pending legislation, [and] more generalized references to possible programs

and initiatives”: at p. 15. Therefore, it is apparent that the IPC applied s. 12(1) in

Order PO-1725 because the scheduling book revealed the thoughts and opinion

of the Premier and, consequently, Cabinet.

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[76] Conversely, the Letters are the culmination of that deliberative process.

While they highlight the decisions the Premier ultimately made, they do not shed

light on the process used to make those decisions, or the alternatives rejected

along the way. Accordingly, the Letters do not threaten to divulge Cabinet’s

deliberative process or its formulation of policies.

[77] In my view, this application of s. 12(1) by the IPC to the Letters was

reasonable, and the Divisional Court committed no error in so finding.

The IPC did not introduce a new balancing test into the exercise

of its statutory authority under s. 12(1) of the Act

[78] The AG Ontario argued that the IPC injected a balancing test into s. 12(1)

despite its exclusion from the “public interest override.”

[79] The AG Ontario refers to s. 23 of the Act which permits disclosure of exempt

records if there is “a compelling public interest in disclosure that clearly outweighs

the purpose of the exemption.” Section 23, however, expressly does not apply to

Cabinet records that are otherwise caught by s. 12.

[80] The AG Ontario argues that the IPC’s reference to the “public interest” as a

balancing factor, relying in part on the Nova Scotia Court of Appeal in O’Connor v.

Nova Scotia, 2001 NSCA 132, 197 N.S.R. (2d) 154, thus constitutes a reversible

error.

[81] I disagree.

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[82] In my view, the IPC did not inject a new balancing test into the analysis of

s. 12(1). Rather, the IPC, relying on O’Connor, recognized that s. 12(1) itself

strikes a balance between a citizen’s right to know what government is doing and

a government’s right to consider what it might do behind closed doors: Order PO-

3973, at para. 97. The Court, at para. 1 in O’Connor, stated that this context calls

for an interpretation of the Act that attempts to balance these two public rights.

[83] While the Divisional Court highlighted the factual distinctions between this

case and O’Connor, where there was substantial evidence that the records at issue

would reveal Cabinet deliberations, the reference to the balance reflected in the

Act is appropriate in the context of this case as well.

[84] I see no error in the IPCs reference to these general observations by the

Nova Scotia Court of Appeal in O’Connor as part of its analysis. His reference

focuses on the Court of Appeal’s analysis linking the records at issue with the

substance of deliberation. That is exactly the thrust of the opening words exception

in s. 12(1).

[85] Generally, the AG Ontario submits that the Divisional Court erred in failing

to conduct a proper Vavilov review of the IPC’s statutory analysis.

[86] I would not accept this submission.

[87] The Divisional Court committed no error arising from Vavilov in its finding

that the Decision was reasonable.

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DISPOSITION

[88] For the reasons set out above, I would dismiss the appeal.

[89] If the AG Ontario and CBC cannot agree on costs, brief written submissions

may be provided to the court (not to exceed three pages double-spaced) within

15 days of the release date of these reasons.

[90] Neither the interveners nor the IPC sought costs and I would order none.

“L. Sossin J.A.”

“I agree. E.E. Gillese J.A.”

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Lauwers J.A. (dissenting):

A.

OVERVIEW

[91] The Information and Privacy Commissioner ordered Cabinet Office to

disclose to the CBC the mandate letters Premier Ford gave to Cabinet ministers

at a Cabinet meeting. The distribution of the letters was on the meeting’s agenda.

The Commissioner determined that the exemption from disclosure for Cabinet

records set out in the Freedom of Information and Protection of Privacy Act¹did

not apply to the mandate letters. The issue is whether the Commissioner’s

interpretation of the exemption was reasonable.

[92] Section 12(1) of the Act sets out the relevant exemption from public

disclosure for Cabinet records: “A head shall refuse to disclose a record where the

disclosure would reveal the substance of deliberations of the Executive Council or

its committees, including…”. These opening words are followed by subparagraphs

(a) to (f), which list specific kinds of records that are exempted, such as agendas

or minutes of Cabinet deliberations.

[93] The purpose of the exemption is to establish a robust and well-protected

sphere of confidentiality within which Cabinet can function effectively, one that is

consistent with the established conventions and traditions of Cabinet government.

¹Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 12(1).

Page: 30

I conclude that the Commissioner’s interpretation was unreasonable because the

effect of his order, contrary to the legislature’s intention, was to breach, erode, or

undermine those traditions. I therefore dissent.

[94] Because the mandate letters are part of the Premier’s deliberative process,

in his role as head of Cabinet, and initiate Cabinet’s mandate going forward, they

are, perforce, part of Cabinet’s deliberative process. They are records that would

reveal the nature of Cabinet deliberations – understood as including the topics,

subject matters, things, or “body of information” Cabinet would be discussing, as

well as the deliberations themselves – within the meaning of “the substance of

deliberations” in the opening words of s. 12(1). This is dispositive of the appeal,

which I would allow on this basis alone.

[95] I would also allow the appeal on the grounds that the Commissioner

prescribes a new test that a record must meet to qualify for exemption from

disclosure under the opening words of s. 12(1): “If a record does not appear at

paragraphs (a) to (f), it will only qualify for the exemption if the context or other

information would permit accurate inferences to be drawn as to actual Cabinet

deliberations at a specific Cabinet meeting.”²This new test is fundamentally

incompatible with the text, context, and purpose of s. 12(1) of the Act.

²Order PO-3973; Cabinet Office (Re), [2019] O.I.P.C. No. 155, at para. 101 (emphasis added).

Page: 31

[96] Turning to my colleague’s reasons, he states that “[t]he use of the term

‘including’ prior to setting out the ss. 12(1)(a) to (f) is ambiguous.”³He takes the

position that this ambiguity opens up a policy choice that the Commissioner is

entitled to make under the Act between two competing approaches, one broad and

one narrow, and the Commissioner did not err in preferring the narrow approach

to limit the exemption.

[97] I disagree. The ostensible presence of an ambiguity in s. 12(1) of the Act

does not open up a policy choice for the Commissioner to make. The legislature

made the policy choice as to the reach of the protected sphere of Cabinet

confidentiality in enacting s. 12(1). The Commissioner’s task was to identify and

apply that legislative choice. This he failed to do, as did the Divisional Court.

B.

THE ISSUES

[98] I frame my analysis around this sequence of questions:

1) What are the relevant principles of statutory interpretation and what

is the applicable standard of review?

2) What is the pertinent context within which s. 12(1) of the Act is to be

interpreted?

3) What is the purpose of s. 12(1)?

4) In light of that context and that purpose, what interpretation of the

text of s. 12(1) should the Commissioner have adopted?

5) Is the Commissioner’s new test compatible with s. 12(1)?

6) Should the disclosure of the mandate letters be remitted to the

Commissioner for disposition in accordance with these reasons?

³Reasons of Sossin J.A., at para. 50.

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C.

THE ANALYSIS

[99] I begin with two observations. First, Cabinet mandate letters are a relatively

recent form of political document issued by prime ministers and premiers. They

have been used as a form of public letter to frame an area of public policy and

often reiterate campaign promises. Of course, prime ministers and premiers are

free to craft and issue such letters for public consumption. But the issue in this

case is different. Can the Commissioner compel the disclosure of mandate letters,

in the face of the exemption from disclosure for Cabinet records in s. 12(1) of the

Act, when the Premier chooses to keep them private? This issue engages

constitutional conventions and traditions surrounding the Premier’s role in matters

pertaining to Cabinet deliberations, and it has broader implications.

[100] My second observation is that an ultimate decision forcing disclosure of the

mandate letters in this case is likely to be a one-off. Why do I say that? Because

the Premier’s response in the future will predictably take one of three forms: to

draft mandate letters for purely public consumption as others have done; to tie

mandate letters even more closely to the Cabinet decision-making process in order

to better substantiate the claim to an exemption from public disclosure under

s. 12(1) of the Act; or to give up drafting mandate letters altogether.

[101] That said, the Commissioner’s incursion into the ordinary operations of

Cabinet is not benign or unimportant, and it should not be trivialized. The

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Commissioner overstepped and the Divisional Court was wrong to uphold his

decision. It was neither the legislature’s intention nor the purpose of s. 12(1) of the

Act to force Cabinet to change its customary way of operating. The basis on which

the Commissioner overstepped could give rise to future problems of a markedly

more serious nature than the disclosure of mandate letters might suggest.

[102] I now turn to the questions that frame my analysis.

What are the relevant principles of statutory interpretation and

what is the applicable standard of review?

[103] The interpreter’s task in statutory interpretation is to discern the legislature’s

intention in order to give effect to it.⁴The interpreter must attend to text, context,

and purpose.⁵

[104] Section 1 of the Act stipulates two purposes. The first purpose is: “(a) to

provide a right of access to information under the control of institutions in

accordance with the principles that, (i) information should be available to the public,

[and] (ii) necessary exemptions from the right of access should be limited and

specific”. The second purpose – to protect the privacy of individuals – is not

engaged in this appeal.

⁴Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1,

at paras. 117, 121.

⁵Vavilov, at paras. 118-24.

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[105] Section 12(1) of the Act sets out the relevant exemption from public

disclosure for Cabinet records. The interpreter must reconcile the public access to

information purpose of the Act set out in s. 1(a) with the purpose for the exemption

from disclosure for Cabinet records set out in s. 12(1).

[106] The standard of review to be applied to a specialized tribunal’s statutory

interpretation is ordinarily reasonableness.⁶However, because questions

regarding “the relationship between the legislature and the other branches of the

state… require a final and determinate answer from the courts,”⁷when the

interpretation engages a constitutional question, the standard is correctness.

[107] This case presents a conundrum. Constitutional conventions are engaged,

which gives a constitutional dimension to the interpretation exercise. But

constitutional conventions are not law beyond a legislature’s reach. Good

constitutional order requires at least a presumption that the legislature did not

intend to abrogate any constitutional conventions absent a clear signal to the

contrary. All the signals in the Act’s development and in its text are in the direction

of respect for those conventions and the associated traditions and practices.

[108] I conclude that the Commissioner’s interpretation of s. 12(1) was

unreasonable. I would leave for another day the thorny question of whether the

⁶Vavilov, at paras. 115, 119.

⁷Vavilov, at para. 55.

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constitutional overlay in this case – that is, the constitutional conventions and

associated traditions and practices surrounding the role of the Premier in matters

pertaining to Cabinet deliberations – requires the Commissioner to be correct in

his interpretation.

What is the pertinent context within which s. 12(1) of the Act is

to be interpreted?

[109] The word “context” in the phrase, “text, context, and purpose”, has an

external dimension, outside the Act’s text, which positions the legislation in the

larger world. The context also has an internal dimension by which the Act as a

whole must be given a coherent interpretation that reconciles its access to

information purpose in s. 1(a) with the purpose for the Cabinet records disclosure

exemption in s. 12(1). I begin with the external dimension and then turn to the

internal.

(a) The external contextual dimension

[110] In this section of the reasons, I consider the constitutional context and then

the policies supporting public access to government information.

(i)

The constitutional context

[111] The policy work behind the Act was largely done by the Commission on

Freedom of Information and Individual Privacy, which was headed by Dr. D.

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Carlton Williams.⁸The Williams Report noted that the “terms of reference directed

us to consider possible changes in public information practices which would be

‘compatible with the parliamentary traditions of the Government of Ontario.’”⁹

These include those constitutional conventions and traditions surrounding the role

of the Premier in matters pertaining to Cabinet deliberations. Such conventions

and traditions form the deep contextual backdrop, which must not be ignored,

forgotten, or paid mere lip service. The Report was sensitive to the political realities

of Cabinet government and to how access to information should function, as is the

Act, properly interpreted. The Commissioner was not similarly sensitive, nor was

the Divisional Court.

The Westminster model of responsible government in Canada

[112] The Constitution Act, 1867 established a modified Westminster model of

responsible government in Canada via the preamble, which mandates “a

Constitution similar in Principle to that of the United Kingdom.” As Professor Peter

Hogg notes: “[T]he rules which govern [responsible government in Canada] are

almost entirely ‘conventional’, that is to say, they are not to be found in the ordinary

legal sources of statute or decided cases.”¹⁰The various elements of the

⁸Public Government for Private People: The Report of the Commission on Freedom of Information and

Individual Privacy, vol. 2 (Toronto: Queen’s Printer of Ontario, 1980) (the “Williams Report” by the

“Williams Commission”).

⁹Williams Report, at p. 83.

¹⁰Peter W. Hogg, Constitutional Law in Canada, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada

Ltd., 2007), at para. 9-3. The most significant modification is the country’s federal structure. In this

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Westminster model form a tradition. A tradition is like an iceberg. The bulk of it is

not immediately visible. Understanding a tradition in order to do no harm to it

requires careful, attentive, and sensitive work.

[113] I accept Hogg’s general description of the Canadian version of the

Westminster model of responsible government. He observes that “the forms of

monarchical government are retained, but real power is exercised by the elected

politicians who give advice to the Queen and her representatives.”¹¹By

convention, the Governor General selects as Prime Minister the “person who can

form a government that will enjoy the confidence of the House of Commons.”¹²

Hogg notes: “Responsible government transfers the real power to the elected

Prime Minister”, who is the “political head of state”.¹³

[114] The Prime Minister has two significant powers. The first is “the power to

select the other ministers, and the power to promote, demote or dismiss them at

pleasure.”¹⁴The Governor General appoints the ministers on the Prime Minister’s

section, I pick out of Professor Hogg’s text some pertinent descriptive statements that are indisputable,

though not, as he points out, absolute or without exception. The concepts applicable to the federal

government apply with necessary modifications to the provinces; the Premiers are the Prime Minister’s

equivalent: Hogg, at paras. 9-1, 9-3. Ontario’s Executive Council, the provincial equivalent of the Privy

Council, is mandated by the Executive Council Act, R.S.O. 1990, c. E.25, although a number of other

pieces of legislation affect its composition and functions: see F.F. Schindeler, Responsible Government in

Ontario (Toronto: University of Toronto Press, 1969), at p. 30.

¹¹Hogg, at para. 9-1.

¹²Hogg, at para. 9-4.

¹³Hogg, at para. 9-1.

¹⁴Hogg, at para. 9-6.

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advice.¹⁵The second power is to seek dissolution for an election.¹⁶Hogg observes

that these powers, along with the “special authority” that comes from having won

an election, “ensures that the Prime Minister’s voice will be the most influential one

within the cabinet.”¹⁷

[115] The appointed ministers meeting together as a group constitute Cabinet,

which is “in most matters the supreme executive authority.”¹⁸Functionally, Cabinet

“formulates and carries out all executive policies, and it is responsible for the

administration of all the departments of government.”¹⁹Hogg adds that full

Cabinet’s role in decision-making “may depend in large measure upon the

discretion of the Prime Minister” because “the Prime Minister calls the meetings of

cabinet, settles the agenda, presides over the meetings, and ‘defines the

consensus’ on each topic.”²⁰Accordingly, “[t]he Prime Minister (or provincial

Premier) effectively controls the executive branch of government through his

control over ministerial appointments and over the cabinet.”²¹

¹⁵Hogg, at para. 9-4.

¹⁶Hogg, at para. 9-6.

¹⁷Hogg, at para. 9-6.

¹⁸Hogg, at para. 9-5.

¹⁹Hogg, at para. 9-5.

²⁰Hogg, at para. 9-5 (footnote omitted).

²¹Hogg, at para. 9-6.

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The separation of powers

[116] The constitutional doctrine of the separation of powers has applied since

Confederation. The courts have policed the division of powers and, since 1982,

also compliance with the Charter.²²Although the separation of powers in Canada

is not strict, Canadian constitutional law “recognize[s] and sustain[s] some notion

of the separation of powers.”²³

[117] The three branches are the executive, the legislative, and the judicial.²⁴Most

of the case law on the separation of powers has considered the line between the

judicial and the legislative branches, which is necessary to ensure impartial justice.

The line between the executive and the legislative is less distinct and has been

addressed less often.

[118] Karakatsanis J. observed: “All three branches have distinct institutional

capacities and play critical and complementary roles in our constitutional

democracy.”²⁵She added a relevant caution: “However, each branch will be unable

to fulfill its role if it is unduly interfered with by the others.” Karakatsanis J. cited the

words of McLachlin J.: “It is fundamental to the working of government as a whole

²²Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 43, at paras. 27-31,

a decision that concerned the appointment of amicus curiae by judges.

²³Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at paras. 10-11, per Lamer C.J.

And see Côté J.’s partially dissenting reasons in References re Greenhouse Gas Pollution Pricing Act,

2021 SCC 11, 455 D.L.R. (4th) 1, at para. 279.

²⁴The precise status in the constitutional pantheon of certain officials created by statute, such as the

Auditor General, the Ombudsman and the Information and Privacy Commissioner, is unclear.

²⁵Criminal Lawyers’ Association of Ontario, at para. 29.

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that all these parts play their proper role”, to which McLachlin J. added her own

caution: “It is equally fundamental that no one of them overstep its bounds, that

each show proper deference for the legitimate sphere of activity of the other.”²⁶

[119] A functional and purposive approach must be taken to the question of what

powers and privileges each branch has in relation to the others. The analysis must

engage what each branch functionally needs in order to perform its expected role

within the constitutional polity. This flows ineluctably from the nature of the

Westminster model of responsible government, as the cases have recognized.

The executive-legislative separation

[120] Some commentators, including Hogg, posit that in the Westminster model,

“there is no separation of powers between the executive and legislative branches”

because “[t]he head of the executive branch, the cabinet, draws its personnel and

its power to govern from the legislative branch, the Parliament; and the cabinet

controls the Parliament.”²⁷However, in my view, this position is insufficiently

nuanced because it ignores the realities of how responsible government functions

in practice and the constitutional conventions that hedge that practice about.²⁸

²⁶New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993]

1 S.C.R. 319, at p. 389, cited in Criminal Lawyers’ Association of Ontario, at para. 29.

²⁷Hogg, at para. 9-12.

²⁸These practical realities were well known to the Williams Commission, which took them into account.

See below at paras. 132-37.

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[121] Professor Dennis Baker disputes Hogg’s assertion that the separation of

powers between the executive and legislative branches would “make little sense

in a system of responsible government”.²⁹To the contrary, Baker states: “Far from

being antithetical to responsible government… the executive-legislative separation

is logically necessary for responsible government to work.”³⁰I agree with Baker.

[122] Bitter historical experience, Baker notes, made “neither legislative nor

monarchical absolutism… particularly appealing.” He explains:

While the pre-Civil War experience with Charles I

confirmed the fears of a king with absolute prerogatives,

the subsequent experience with the Long Parliament

raised serious doubts about legislative supremacy.

Following Montesquieu, Blackstone understood this

history as confirming the desirability of partial executive

and legislative independence since “either total union or

total disjunction would in the long run lead to tyranny.”³¹

[123] This insight led to the development of the mixed polity of the Westminster

model. Baker explains: “To fulfill its purpose of moderate government, the

separation of powers might permit significant inter-branch interactions, even

exertions of influence and control, but must prohibit arrangements that place one

power entirely in the hands of another.”³²

²⁹Hogg, at para. 7-15, cited in Dennis René Baker, Not Quite Supreme: The Courts and Coordinate

Constitutional Interpretation, (Montreal: McGill-Queens University Press, 2010), at p. 61.

³⁰Baker, at p. 61.

³¹Baker, p. 58 (emphasis in original; footnotes omitted).

³²Baker, p. 60. Apart from constitutional conventions, Baker notes, at pp. 61-62, that ss. 53 and 54 of the

Constitution Act, 1867 apportion responsibilities over public finances between the executive and

legislative branches, thus explicitly recognizing the separation of powers beyond the constitutional

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[124] Baker argues that “the separation of powers continues to play a vital [role]

in Canada‘s constitutional design”, albeit one that has been obscured by what he

calls “the exaggerated claim of executive-legislative fusion”.³³“Viewed through this

lens,” he notes, “the fundamental rule of the separation of powers (the power of no

branch may be wholly exercised by another) can be easily discerned.”³⁴Each

branch has a sphere of independence, but each is sufficiently hobbled to require

the support of the others, which leads to a measure of interdependence. For

example, the legislative branch has no executive capacity and the executive

branch cannot enact legislation.³⁵

[125] The concept of fusion implies that executive control of the legislative branch

is absolute, but this does not bear close scrutiny. It is more accurate to say that

there is “a considerable degree of integration” between the legislative and

executive branches.³⁶

[126] However, most telling, in my view, is Baker’s observation that: “[T]he subtle

interplay of formal and informal power maintains and animates an effective

conventions, citing Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political

Thought (Montreal and Kingston: McGill-Queen’s University Press, 2003), at p. 65.

³³Baker, at p. 83.

³⁴Baker, at p. 83.

³⁵See Baker, Chapter 3, especially pp. 61-63.

³⁶Wells v. Newfoundland, [1999] 3 S.C.R. 199, citing Attorney General of Quebec v. Blaikie et al., [1981]

1 S.C.R. 312, at p. 320. In Wells, the court also stated that even though the “separation of powers is not a

rigid and absolute structure”, the court “should not be blind to the reality of Canadian governance that,

except in certain rare cases, the executive frequently and de facto controls the legislature”: at para. 54.

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institutional separation between the legislature and the executive.”³⁷This is the

Anglo-Canadian version of constitutional checks and balances. It raises squarely

the issue of Cabinet functionality; Cabinet serves as a “connecting link” between

the two branches.³⁸

Cabinet, in functional terms

[127] I now look more closely at the role of Cabinet within the Westminster system.

In functional terms, Cabinet is to be understood as “a forum, presided over by the

Prime Minister, where Ministers meet to propose, debate and decide government

policy and action.”³⁹It is “the place where Ministers decide, as a group, how the

executive power should be exercised.”⁴⁰

[128] Several building blocks are essential for Cabinet to be able to function

effectively as a political body nested in Parliament or in the Legislative Assembly.

These building blocks are fostered and protected by constitutional conventions.

I focus on three: candour, solidarity, and confidentiality. Necessary and tight links

among these conventions make possible the proper functioning of our

³⁷Baker, at p. 83.

³⁸The description of Cabinet as a “connecting link” is drawn from Walter Bagehot’s The English

Constitution, 7th ed. (London: Kegan Paul, Trench, Trübner & Co., 1894), at p. 11. However, although

I accept this connecting link concept, I reject Bagehot’s overall executive-legislative fusionist view.

³⁹Yan Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017) 51:1 R.J.T.U.M. 51, at p. 60.

Campagnolo also explains, at pp. 60-61, that unlike the Privy Council, Cabinet has no legal existence or

power. Rather, it is “an informal advisory body”. Executive power is “exercised by the Governor in Council

or individual Ministers”, although “from a conventional perspective, the Governor in Council or individual

Ministers act on the advice of the Cabinet.”

⁴⁰Campagnolo, at p. 60.

Page: 44

parliamentary system in which the risk of a vote of no-confidence is ever-present.

This risk is particularly acute in minority governments but still exists in a majority,

if only as a more remote possibility. The Prime Minister and Cabinet must

accommodate Cabinet’s own internal tensions, occasionally balky bureaucrats,

hear from caucus and secure caucus support, marshal sufficient support in the

House (challenging in minority times), and attune the government’s program both

to day-to-day contingencies and to past and future electoral commitments

designed to secure re-election.

[129] Cabinet functionality depends on its members being free to communicate

with complete candour. As McLachlin C.J. noted: “Those charged with the heavy

responsibility of making government decisions must be free to discuss all aspects

of the problems that come before them and to express all manner of views, without

fear that what they read, say or act on will later be subject to public scrutiny”.⁴¹

Cabinet could not carry out its policy-making and policy-vetting responsibilities if

its members were inhibited in their debate by the prospect of public disclosure.

[130] As for solidarity, all ministers accept responsibility collectively for Cabinet

decisions and must resign or expect dismissal if they publicly dissent.⁴²Ministers

could not credibly offer public support and positive explanations for policy

⁴¹Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 18.

⁴²Sir W. Ivor Jennings, Cabinet Government, 2nd ed. (Cambridge: Cambridge University Press, 1951),

at pp. 257-58. See also Hogg, at para. 9-7.

Page: 45

decisions they opposed in Cabinet deliberations were that opposition to become

publicly known.

[131] Confidentiality links candour and solidarity. The confidentiality of Cabinet’s

deliberations enables frank discussion and dissent during its meetings while

preserving public-facing collective responsibility for its decisions.⁴³These three

essential constitutional conventions underwrite the protected sphere in Cabinet

within which government policy can be developed and debated, as the cases

recognize.⁴⁴

(ii) The policy context for access to information

[132] The Williams Report led to the enactment of the Act in 1988. The policy

development process was sensitive to the political realities of Cabinet government

and the functional issues because, to repeat, the terms of reference directed the

Commission to consider changes that were “compatible with the parliamentary

traditions of the Government of Ontario.”⁴⁵

[133] The Williams Report recognized the tension between “a compelling public

interest in open government”, on the one hand, and “a compelling public interest

⁴³See Campagnolo, at p. 63, and a publication from the Privy Council Office that, among other things,

summarizes the principles of Cabinet solidarity and confidentiality: Canada, Privy Council Office, Open

and Accountable Government (2015), online: <http://pm.gc.ca/eng/news/2015/11/27/open-and-

accountable-government>.

⁴⁴In addition to the text above, see below at paras. 163-65.

⁴⁵Williams Report, at p. 83.

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in effective government”, on the other, which recognizes “the critical needs of

government for confidentiality”.⁴⁶The Report did not set about to substantially

depart from Cabinet’s current practices or well-established traditions, which are

rooted in constitutional conventions, nor did its recommendations do so. The

Report, as an added example, noted the need to preserve the anonymity of public

servants,⁴⁷because not doing so “would mark a significant departure from this

well-established tradition”,⁴⁸which was not desired.

[134] The goal was to provide public accessibility to government documents in

order to facilitate “[i]ncreased access to information about the operations of

government”.⁴⁹The Williams Report recognized that there was a “need to render

government more accountable to the electorate”, and that “facilitating informed

public participation in the formulation of public policy” was desirable.⁵⁰Achieving

these ends would enhance the ability of the public to hold elected representatives

accountable and the ability of members of the legislature to hold the executive

accountable. The Report was confident that the “critical balance between the

public interest in access and the government need for confidentiality” could be

⁴⁶Williams Report, at p. 235.

⁴⁷Williams Report, at p. 86.

⁴⁸Williams Report, at p. 90 (emphasis added).

⁴⁹Williams Report, at p. 77.

⁵⁰Williams Report, at p. 77.

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“achieved by means of statutory exemptions from the general rule of public

access.”⁵¹

[135] Pertinent to the task of interpreting the exemption in s. 12(1) of the Act, the

Williams Report stated: “[I]t is obvious that the confidentiality of Cabinet

deliberations must be preserved in a freedom of information scheme”.⁵²The

question was “how an exemption relating to this matter should be drafted”.⁵³The

Report listed documents considered to be “Cabinet documents”:

[A]gendas, informal or formal minutes of the meetings of

Cabinet committees or full Cabinet, records of decision,

draft legislation, Cabinet submissions and supporting

material, memoranda to and from ministers relating to

matters before Cabinet, memoranda prepared by

Cabinet officials for the purpose of providing advice to

Cabinet, and briefing materials prepared for ministers to

enable them to participate effectively in Cabinet

discussions.⁵⁴

[136] The Williams Report noted: “The disclosure of many of these documents

would have the effect of disclosing the nature of Cabinet discussions and the

advice given or received by Cabinet members”, and accordingly “all such material

should be considered exempt under a freedom of information scheme.”⁵⁵

⁵¹Williams Report, at p. 277.

⁵²Williams Report, at p. 285.

⁵³Williams Report, at p. 285.

⁵⁴Williams Report, at p. 285 (footnote omitted).

⁵⁵Williams Report, at p. 285 (emphasis added).

Page: 48

[137] I now turn to the internal dimension of the context by which the Act as a

whole must be given a coherent interpretation that reconciles its purpose of

promoting access to information with the purpose of its s. 12(1) Cabinet records

exemption.

(b) The internal dimension

[138] Two observations: First, it was open to the legislature to enact legislation

requiring Cabinet to be much more forthcoming in its disclosure than Cabinet’s

prior practices or well-established traditions would permit or require.⁵⁶Instead, the

enacted legislation contains provisions that are substantially similar to those

proposed in the relevant sections of the Williams Report. Second, while providing

a right of access to government information, the Act shares the Report’s real

diffidence around “Cabinet records”.

[139] Against the rich background of the external dimension described above,

I look at s. 12(1) from the perspective of the text and the legislative history, which

together show the legislature’s intent.

[140] The full text of s. 12(1) provides:

(1) A head shall refuse to disclose a record where the disclosure

would reveal the substance of deliberations of the Executive Council

or its committees, including:

⁵⁶This is what the Nova Scotia legislature did, as I discuss below at para. 162.

Page: 49

(a) an agenda, minute or other record of the deliberations

or decisions of the Executive Council or its

committees;

(b) a

record

containing

policy

options

or

recommendations submitted, or prepared for

submission, to the Executive Council or its

committees;

(c) a record that does not contain policy options or

recommendations referred to in clause (b) and that

does contain background explanations or analyses of

problems submitted, or prepared for submission, to

the Executive Council or its committees for their

consideration in making decisions, before those

decisions are made and implemented;

(d) a record used for or reflecting consultation among

ministers of the Crown on matters relating to the

making of government decisions or the formulation of

government policy;

(e) a record prepared to brief a minister of the Crown in

relation to matters that are before or are proposed to

be brought before the Executive Council or its

committees, or are the subject of consultations among

ministers relating to government decisions or the

formulation of government policy; and

(f) draft legislation or regulations. [Emphasis added.]

The meaning of the underlined words – “the substance of deliberations” and

“including” – is hotly disputed in this case.

(i) The text

[141] The first perspective relates to the strength of the provision’s language. I

infer that the exemption in s. 12(1) for Cabinet records is intended to be especially

Page: 50

strong. The text in the opening words of s. 12(1) is imperative: “A head shall refuse

to disclose a record…” (emphasis added). This mandatory wording leaves the

head no discretion. Similar language is found in other sections such as s. 21

(personal privacy). Contrast this with the permissive and discretionary language

about records covered in certain other sections, including s. 13(1) (advice to

government), which the “head may refuse to disclose” (emphasis added). This

inference about the strength of the s. 12(1) exemption is reinforced by contrasting

s. 23 of the Act, which builds in flexibility and allows exemptions from disclosure to

be lifted where there is a “compelling public interest”. It is especially instructive that

the s. 23 public interest override does not apply to Cabinet records under s. 12(1),

even though it does to a refusal under s. 13. Nor does the purpose language in

s. 1(a) of the Act, which provides that “necessary exemptions from the right of

access should be limited and specific”, take priority over the s. 12(1) exemption.

(ii) The legislative history

[142] The second perspective on the text takes into account the legislative history,

which can provide guidance in statutory interpretation.⁵⁷The Attorney General for

Ontario points out that a proposed amendment to Bill 34 (the predecessor draft Bill

to the Act) would have limited the exemption from disclosure in s. 12(1) “solely” to

⁵⁷See 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at

paras. 12-14, citing Canada (Canadian Human Rights Commission) v. Canada (Attorney General),

2011 SCC 53, [2011] 3 S.C.R. 471, at para. 43.

Page: 51

the records listed in the subparagraphs.⁵⁸The amendment was defeated. This

reinforces the view that the expression “the substance of deliberations” was meant

to be broad enough to encompass the listed records without being limited to only

those records.

[143] I make four additional points. First, I set out above the Williams Report’s

explanation for the list of particular records it would have included in the

subparagraphs. However, here I focus on different words: “The disclosure of many

of these documents would have the effect of disclosing the nature of Cabinet

discussions and the advice given or received by Cabinet members.”⁵⁹In other

words, the Report’s focus was less on the list of records than on the principle:

keeping confidential “the nature of Cabinet discussions” so that those discussions

could proceed unharried by outside influences. In other words, even though not all

the listed documents – only many – would or would always have the effect of

disclosing Cabinet discussions, it is noteworthy that the Report recommended that

“all such material should be considered exempt under a freedom of information

scheme.”⁶⁰

⁵⁸Ontario, Legislative Assembly, Official Report of Debates (Hansard), 33rd Parl., 1st Sess., No. 113

(10 February 1986), at p. 3955 (Norman Sterling).

⁵⁹Williams Report, at p. 285 (emphasis added).

⁶⁰Williams Report, at p. 285 (emphasis added).

Page: 52

[144] My second point is that it is instructive to contrast the wording of the Williams

Report recommendation on Cabinet records with the opening words of s. 12(1)⁶¹:

Freedom of Information and

Protection of Privacy Act, R.S.O.

1990, c. F.31, s. 12(1)

Text of the Williams Report

Cabinet records

1. We recommend that the

proposed freedom of information

12(1) A head shall refuse to disclose a law contain an exemption for

record where the disclosure would

reveal the substance of deliberations

of the Executive Council or its

committees, including,

documents whose disclosure would

reveal the substance of Cabinet

deliberations and, in particular, that

the following kinds of Cabinet

documents be the subject of this

exemption:

[145] Note the use of the words, “the following kinds of Cabinet documents” in the

Williams Report. This is another way of expressing and underlining the Report’s

worry about keeping “the nature of Cabinet discussions” confidential.

[146] Third, the Williams Report gave two signal cautions that also made their way

into the Act. Any disclosure regime must not have the effect of rushing Cabinet into

a decision. Accordingly, there should be no disclosure of material forwarded before

Cabinet’s consideration of it.⁶²Further, the Report accepted that “[t]here may be

many situations in which Cabinet might properly wish to delay public

announcements of its decisions.”⁶³

⁶¹The full contrasting text is set out in the Appendix.

⁶²Williams Report, at p. 287.

⁶³Williams Report, at p. 286.

Page: 53

[147] My fourth point is that the Act expands the reach of the exemption beyond

the Report’s recommendations in several ways. Notably, s. 12(1) of the Act

generally uses the formulation “of the Executive Council or its committees” while

the Report only used a similar formula once.⁶⁴Next, the Report would have limited

the exemption under subparagraph (b) to “records containing proposals or

recommendations submitted, or prepared for submission, by a Cabinet Minister to

Cabinet”, but the Act provides a broader, more generic exemption: “policy options

or recommendations submitted, or prepared for submission”. Finally, the Report

would have limited the exemption under subparagraph (c) to the time “before such

decisions are made” while the Act states: “before those decisions are made and

implemented”. The enacted language is more protective of Cabinet records than

the proposed language in the Williams Report.

[148] I noted above that the Williams Report evinced real diffidence around the

confidentiality of Cabinet records. The Commission appears to have favoured

setting clear rules for Cabinet records.⁶⁵The practical reason for such a blanket

⁶⁴Emphasis added throughout.

⁶⁵The Report’s recommendations focused on the protection of physical Cabinet records. This concern

with physical documents may relate to the historical formalization of Cabinet meetings. As Campagnolo

notes, at pp. 72-77, prior to the 20th century, Cabinet meetings were informal affairs with no organized

system of record-keeping. The only official document recording Cabinet discussions was a letter from the

Prime Minister to the Sovereign. However, due to the increasing complexity of state activities, measures

were taken to improve executive decision-making efficiency, including the introduction of Cabinet

secretariats. Yet, the establishment of Cabinet secretariats was accompanied by a new risk: that the

written records of Cabinet meetings could be potentially accessible, including by members of an incoming

government following a change of power. This led to the development of conventions that focused on the

protection of physical records of Cabinet’s deliberations.

Page: 54

rule is to avoid disputes over specific documents of the sort this case exemplifies.

I will return to this point below.

What is the purpose of s. 12(1) of the Act?

[149] The consideration of the external and the internal contextual dimensions set

out above leads me to conclude that the purpose for the exemption from the

disclosure of Cabinet records in s. 12(1) of the Act is to establish a robust and well-

protected sphere of confidentiality within which Cabinet can function effectively,

one that is consistent with the established conventions and traditions of Cabinet

government. “The preservation of the confidentiality of Cabinet discussions… [is]

a necessary feature of a freedom of information scheme ‘compatible with the

parliamentary traditions of the Government of Ontario’”, the Williams Report noted,

warning that giving “the public a right of access to documents revealing the nature

of Cabinet deliberations would be a substantial departure from current practice.”⁶⁶

[150] This purpose – to establish a robust and well-protected sphere of

confidentiality within which Cabinet can function effectively – is reinforced by the

mandatory and absolute nature of the protection in s. 12(1) and by the exclusion

of s. 12(1) from the s. 23 public interest override. It is also more modestly reinforced

by the slight adjustments in s. 12(1)’s subparagraphs in favour of more

⁶⁶Williams Report, at p. 85.

Page: 55

confidentiality made by the legislature to the language proposed in the Williams

Report.

[151] At bottom, s. 12(1)’s purpose resonates profoundly with the values and

virtues of Ontario’s version of Westminster responsible government, and facilitates

what Baker called, to repeat: “the subtle interplay of formal and informal power

[that] maintains and animates an effective institutional separation between the

legislature and the executive.”⁶⁷

In light of the context and purposes, what interpretation of the

text of s. 12(1) should the Commissioner have adopted?

[152] The analysis of this question is divided into three sections: the approach to

be applied to the interpretation of s. 12(1) of the Act; the role of the functional

approach; and the Premier’s role in Cabinet in the interpretation exercise. In my

view, the “illustrative approach” best captures the purpose of the exemption, and

is supported by the functional approach to Cabinet government discussed above,

taking into account the particular role played therein by the Premier.

(a)Two approaches to the interpretation of s. 12(1) of the Act

[153] When the word “including” is used in legislation, the issue often is which of

two approaches, the “expansive approach” or the “illustrative approach”, was

legislatively intended. Professor Ruth Sullivan states that: “The purpose of a list of

⁶⁷Baker, at p. 83.

Page: 56

examples following the word ‘including’ is normally to emphasize the broad range

of general language and to ensure that it is not inappropriately read down so as to

exclude something that is meant to be included.”⁶⁸Sullivan adds: “It is not always

obvious whether a list that follows ‘includes’ is meant to expand the scope of the

stipulated definition or merely illustrate it.”⁶⁹

[154] In interpreting s. 12(1), the Commissioner did not take the “illustrative

approach”, which is endorsed by the Attorney General for Ontario. Instead he took

the competing “expansive approach”, which is endorsed by the CBC and the

interveners.

[155] The expansive approach holds that, but for their express inclusion in s.

12(1)’s subparagraphs, the listed records would not necessarily be caught by the

opening words and so would otherwise require specific exemption from

disclosure.⁷⁰The subparagraphs are thus said to “expand” the scope of the general

exemption of records that “would reveal the substance of deliberations” by going

beyond the underlined words to the list in the subparagraphs. The expansive

approach takes a correlatively narrow view of the meaning of that expression.

⁶⁸Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto.: LexisNexis Canada, 2014),

at para. 4-38.

⁶⁹Sullivan, at paras. 4-41 to 4-42, citing Entertainment Software Association v. Society of Composers,

Authors and Music Publishers of Canada, 2012 SCC 34, [2012] S.C.R. 231.

⁷⁰Reasons of Sossin J.A., at para. 43.

Page: 57

[156] Take the word “agenda” in subparagraph (a) as an example. Because an

agenda sets out a list of topics for discussion at a meeting, it could not reveal any

actual deliberations. The expansive approach argues that “agenda” should not be

understood to be included in the expression “the substance of deliberations”

because that expression refers only to actual deliberations at the Cabinet table.

Or, as my colleague puts it, the Commissioner’s approach is only “protective of

communications within Cabinet’s deliberative process that would reveal the

substance of its formulation of government policies.”⁷¹But for its inclusion in

subparagraph (a), a Cabinet agenda would be disclosable under s. 1 of the Act.

On the expansive approach, the same argument would apply to the records in

subparagraphs (b), (c), (e), and (f), which are all records prepared by someone

else for Cabinet to discuss and would not thereby describe any actual

deliberations.

[157] By contrast, the illustrative approach holds that subparagraphs (a) to (f)

serve to identify or “illustrate” the types of records that, if disclosed, would reveal

the substance of deliberations. The list of protected records in the subparagraphs

informs the interpretation of “the substance of deliberations” and posits a different

meaning: this expression refers to the nature of the topics, subject matters, or

⁷¹Reasons of Sossin J.A., at para. 37.

Page: 58

things Cabinet would be discussing, as well as to the deliberations themselves.

The illustrative approach takes a broader view of the exemption.

[158] In my opinion, the illustrative approach best achieves and instantiates the

purpose of s. 12(1), which is to establish a robust and well-protected sphere of

confidentiality within which Cabinet can function effectively. This result flows from

the purpose of the legislation and the legislative history of s. 12(1) of the Act

discussed above, and by the functional and purposive approach taken in the cases

on the operation of the separated powers, and the particular role assigned to the

Premier.

[159] I am fortified in my view by the decision of the British Columbia Court of

Appeal in Aquasource.⁷²That court took the same approach to Cabinet records as

the Williams Commission, and adopted a broad reading of “the substance of

deliberations” in s. 12(1) of B.C.’s legislation, which provided:

The head of a public body must refuse to disclose to an applicant

information that would reveal the substance of deliberations of the

Executive Council or any of its committees, including any advice,

recommendations, policy considerations or draft legislation or

regulations submitted or prepared for submission to the Executive

Council or any of its committees.⁷³

⁷²Aquasource Ltd. v. British Columbia (Freedom of Information and Protection of Privacy Commissioner),

58 B.C.L.R. (3d) 61.

⁷³Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 16, s. 12(1).

Page: 59

[160] Donald J.A. held that the phrase “the substance of deliberations”, when read

together with the clause, “including any advice, recommendations, policy

considerations or draft legislation or regulations”, plainly refers to “the body of

information which Cabinet considered (or would consider in the case of

submissions not yet presented) in making a decision”.⁷⁴Accordingly, s. 12(1) “must

be read as widely protecting the confidence of Cabinet communications.”⁷⁵Donald

J.A. concluded that the test for whether something is protected under s. 12(1) is:

“Does the information sought to be disclosed form the basis for Cabinet

deliberations?”⁷⁶In my view, the Aquasource approach is sound.

[161] The Commissioner rejected this approach, preferring the analysis of the

Nova Scotia Court of Appeal in O’Connor.⁷⁷I disagree with my colleague that the

Commissioner made appropriate use of O’Connor. In that case, the court rejected

Donald J.A.’s focus on the “body of information” Cabinet considered in its

deliberations, and instead adopted a narrower test for Nova Scotia’s Cabinet

records exemption.⁷⁸The Commissioner preferred the statutory interpretation of

O’Connor to that of Aquasource on the basis that “the general approach articulated

⁷⁴Aquasource, at para. 39 (emphasis added).

⁷⁵Aquasource, at para. 41.

⁷⁶Aquasource, at para. 48.

⁷⁷O’Connor v. Nova Scotia (Deputy Minister of the Priorities & Planning Secretariat), 2001 NSCA 132,

197 N.S.R. (2d) 154.

⁷⁸O’Connor, at paras. 90-92.

Page: 60

by the Nova Scotia Court of Appeal in O’Connor… aligns more closely with the

language of the [Ontario] exemption”.⁷⁹

[162] In applying the O’Connor approach to the words of s. 12(1) of the Ontario

Act, the Commissioner failed to adequately take into account the salient

differences between the respective statutes. In O’Connor, Saunders J.A. found

that his province’s access to information legislation is uniquely and “deliberately

more generous to its citizens and is intended to give the public greater access to

information than might otherwise be contemplated in the other provinces and

territories in Canada”, including Ontario.⁸⁰It is decidedly not the case that the

O’Connor approach “aligns more closely with the language of the [Ontario]

exemption”. There is simply no basis on which the Commissioner could reasonably

prefer O’Connor to Aquasource. Given the text, context, and purpose of Ontario’s

Act, the opening words of s. 12(1) of the Act create a broader sphere of protection

surrounding Cabinet confidentiality. This includes protection over “the body of

information” Cabinet will consider in its deliberations.

(b) The functional approach in interpretation

[163] I now go deeper into the constitutional backdrop and draw on the cases

describing what is necessary for the proper and effective functioning of Cabinet

⁷⁹Order PO-3973, at para. 97.

⁸⁰O’Connor, at para. 57.

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government. The functional approach is evident in Ontario (Public Safety and

Security) v. Criminal Lawyers' Association, where McLachlin C.J. and Abella J.

make several pertinent observations.⁸¹They note: “It may also be that a particular

government function is incompatible with access to certain documents.” The

example they give is the need to preserve secrecy and privacy in judicial

deliberations. Public access “would impair the proper functioning of the court by

preventing full and frank deliberation and discussion at the pre-judgment stage.”

They add: “The principle of Cabinet confidence for internal government

discussions offers another example.” They urge that attention be paid to the

“historic function of a particular institution [which] may assist in determining the

bounds of institutional confidentiality” because “certain government functions and

activities require privacy”.⁸²They explain: “Certain types of documents may remain

exempt from disclosure because disclosure would impact the proper functioning of

affected institutions.”

[164] La Forest J. stated in Carey v. Ontario: “I would agree that the business of

government is sufficiently difficult that those charged with the responsibility for

running the country should not be put in a position where they might be subject to

⁸¹Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010]

1 S.C.R. 815, at para. 40.

⁸²Ontario (Public Safety and Security), at para. 40, citing Montréal (City) v. 2952‑1366 Québec Inc.,

2005 SCC 62, [2005] 3 S.C.R. 141.

Page: 62

harassment making Cabinet government unmanageable.”⁸³In making this

statement, he cited Lord Reid’s trenchant observation in Conway v. Rimmer:

[The premature disclosure of Cabinet confidences] would

create or fan ill-informed or captious public or political

criticism. The business of government is difficult enough

as it is, and no government could contemplate with

equanimity the inner workings of the government

machine being exposed to the gaze of those ready to

criticise without adequate knowledge of the background

and perhaps with some axe to grind.⁸⁴

McLachlin C.J. added her agreement in Babcock and pointed out that: “[M]inisters

undertake by oath as Privy Councillors to maintain the secrecy of Cabinet

deliberations and the House of Commons and the courts respect the confidentiality

of Cabinet decision-making.”⁸⁵

[165] Manageability and reasonable functionality underpin the functional

approach taken by the courts. I note that Babcock is cited several times in the

Commissioner’s reasons, mostly in reciting Cabinet Office’s submissions, but he

ignores its teaching. Instead, he should have paid more respectful attention to the

constitutional backdrop, as the Assistant Commissioner did in Order PO-1725.⁸⁶

(c) The Premier’s role in Cabinet

⁸³Carey v. Ontario, [1986] 2 S.C.R. 637, 1986 7, at para. 50.

⁸⁴Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 952, cited in Carey, at para. 49.

⁸⁵Babcock, at para. 18.

⁸⁶Order PO-1725, [1999] O.I.P.C. No. 153.

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[166] Neither the premiers nor the Prime Minister are expressly mentioned in the

Constitution Act, 1867. Their constitutional roles and functions are conventional,

not prescribed, which makes it essential to be careful in discerning what is at stake

when a convention is touched. Neither the reason for, nor the proper reach of, a

convention is necessarily completely obvious.

[167] In Order PO-1725, Assistant Commissioner Tom Mitchinson provided an

insightful articulation of the Premier’s role in Cabinet. The requester in that case

sought access to the electronic and hardcopy appointment books of a named

senior employee in the Premier’s office, whose “job title and employment

responsibilities deal directly and primarily with policy formulation and the overall

priority-setting and co-ordination of the government’s policy agenda.”⁸⁷Many

entries were found to qualify for exemption from disclosure under the opening

words of s. 12(1), although some were not.⁸⁸

[168] The Assistant Commissioner considered carefully the “constitutional

conventions and traditions surrounding the role of the Premier in matters pertaining

to Cabinet deliberations.”⁸⁹The Assistant Commissioner reviewed the authorities

on the conventions surrounding the Premier and Cabinet, and accepted the

⁸⁷Order PO-1725, at para. 57.

⁸⁸Order PO-1725, at paras. 61-64.

⁸⁹Order PO-1725, at para. 50.

Page: 64

description of the integral role the Premier plays in the functioning of Cabinet

presented by Dussault and Borgeat, who state:

[Cabinet] is responsible for determining the ways and

means of economic, social and cultural progress and is

called upon to translate into legislation and into concrete

programs the values underlying its rise to power or its

remaining in power. Above all, therefore, it represents a

centre for reflection and decision. By its very nature, the

Cabinet is an institution for compromise, with respect to

which its primary role is to determine priorities, to plan

and to establish political strategy.

…

[T]he ultimate responsibility for decision-making,

although ascribable to Cabinet members as a group, is

conferred in particular upon the Prime Minister who

dominates its activities. This results since he or she is the

head of Cabinet and receives technical briefs and also

since he or she has the power to determine the agenda

for meetings and to exert control over the support staff.

The Prime Minister has recently been termed “the guiding

force, co-ordinator and arbitrator of the executive

decision-making process”. Possessing, inter alia, such

powers as the authority to appoint his or her colleagues,

the Prime Minister dominates the administrative

machinery.⁹⁰

Dussault and Borgeat noted that, while ministers are generally viewed as equals,

the Prime Minister or Premier is “without doubt ‘a little more equal’ than the

others”.⁹¹

⁹⁰René Dussault and Louis Borgeat, Administrative Law, A Treatise, 2nd ed. (Toronto: Carswell, 1985),

at pp. 59-60 (footnotes omitted), cited in Order PO-1725, at para. 52.

⁹¹Dussault and Borgeat, at p. 61. For additional discussion of Cabinet, see generally Dussault and

Borgeat, at pp. 51-63.

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[169] Against this background, the Assistant Commissioner framed three broad

principles that guided his disposition, which warrant reproduction:

Firstly, by virtue of the Premier’s unique role in setting the

priorities and supervising the policy making, legislative

and administrative agendas of Cabinet, the deliberations

of the Premier, unlike those of individual ministers of the

Crown, cannot be separated from the deliberations of

Cabinet as a whole. The Premier’s consultations with a

view to establishing Cabinet priorities are an integral part

of Cabinet’s substantive deliberative processes. To the

extent that records reflect consultations bearing on the

policy making and priority setting functions within the

constitutionally recognized sphere of the Premier’s

authority as first minister, those records, by definition,

may be seen as reflecting the substance of deliberations

of the whole Cabinet.

Secondly, in our modern parliamentary democracy, the

Premier functions by and large through the

instrumentality of staff within his Office.

…

Thirdly, the Premier’s policy-making and priority setting

functions do not occur in a vacuum, but within the political

framework which brought the ruling party to power.

Cabinet, and the Premier in his capacity as leader of the

winning party, are charged with the task of prioritizing and

implementing the major policy choices of party members

by translating political party values into strategies for

legislation and other programs. By virtue of his dual role

as party leader and head of Cabinet, the Premier is at the

apex of both the political and legislative policy-making

functions. In the person of the Premier, Cabinet

deliberations cannot be divorced from the consensus

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building process that must occur within the democratic

political environment.⁹²

[170] These words reveal the radical discontinuity between the approach taken in

Order PO-1725 and by the Commissioner in this case. The Assistant

Commissioner unequivocally found that, owing to the constitutional conventions

and traditions, “the deliberations of the Premier, unlike those of individual ministers

of the Crown, cannot be separated from the deliberations of Cabinet as a whole.”

The Commissioner quotes this statement early in his reasons in reciting the

submissions of Cabinet Office,⁹³but he never directly engages with the statement’s

implications for the interpretation of s. 12(1).

[171] The Commissioner’s chain of reasoning rests on two propositions. First,

s. 12(1) implicitly distinguishes between the “substance of deliberations” and the

“outcome of deliberations”. Second, s. 12(1) of the Act applies only to “Cabinet as

a whole”; because the mandate letters are at best outcomes of the Premier’s

deliberations, they do not fall within the expression “substance of deliberations”. In

addition, the Commissioner construed Order PO-1725 too narrowly. I address

each point in turn.

(i) The distinction between outcomes and deliberations is not

material in this case

⁹²Order PO-1725, at paras. 54-56 (emphasis added).

⁹³Order PO-3973, at para. 23.

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[172] The Commissioner’s view is that the mandate letters are at best “outcomes”

of the Premier’s deliberations that do not fall within the “substance of deliberations”

of “Cabinet as a whole”.⁹⁴I reject the relevance of this distinction in this case.

[173] I accept that there are circumstances where the distinction between the

“substance” and the “outcome” of deliberations would be meaningful, such as

when the outcome of Cabinet’s deliberations on an issue has been publicized but

“the substantive details of the matters deliberated upon by Cabinet” to reach that

outcome have not.⁹⁵However, I would qualify the distinction in two ways.

[174] First, the Act is concerned about premature disclosure. For example,

subparagraph (c) expressly exempts materials used in reaching a decision “before

those decisions are made and implemented”. Further, s. 18(1)(g), exempts:

“information… where the disclosure could reasonably be expected to result in

⁹⁴I also note that the Commissioner followed a line of IPC cases that draws a distinction between the

“substance” and the “subject matter” of deliberations: see Information and Privacy Commissioner of

Ontario, Order PO-3719 (2017), at para. 42; Order PO-3720; Ontario (Ministry of Finance) (Re), [2017]

O.I.P.C. No. 58, at paras. 33, 42, and 44; Interim Order MO-2964-I; Greater Sudbury (City) (Re), [2013]

O.I.P.C. No. 254, at paras. 37-39, 43, and Interim Order MO-3684-I; North Bay (City) (Re), [2018] O.I.P.C.

No. 236, at paras. 18-21. As I indicated above, I reject this distinction because, understood in its proper

context, s. 12(1) aims to protect the confidentiality of certain kinds of documents whose disclosure would

reveal the matters Cabinet would be discussing, not just the content of its discussions. I also note that

much of this IPC case law is rooted in the interpretation of the meaning of “the substance of deliberations”

as it appears in s. 6(1)(b) of the Municipal Freedom of Information and Protection of Privacy Act. R.S.O.

1990, c. M.56. This section permits a head to refuse to disclose a record “that reveals the substance of

deliberations of a meeting of a council, board, commission or other body or a committee of one of them if

a statute authorizes holding that meeting in the absence of the public” (emphasis added). Although both

provisions use the phrase “the substance of deliberations”, the s. 6(1)(b) exemption is unrelated to

Cabinet records and therefore does not engage the constitutional conventions surrounding Cabinet

confidentiality. As a result, the case law interpreting the scope of s. 6(1)(b) is of limited use in discerning

the scope of s. 12(1).

⁹⁵Order PO-3752; Ontario (Ministry of Energy), [2017] O.I.P.C. No. 145, at para. 40.

Page: 68

premature disclosure of a pending policy decision”. In construing the Act

coherently, the concern about premature disclosure counsels caution in making an

overly sharp distinction between deliberations and outcomes in a chain of

reasoning in assessing the application of s. 12(1).

[175] Second, chains of deliberative reasoning are usually comprised of

alternating outcomes and further deliberations until the end of the chain when the

ultimate outcome appears. There is no sense in which the Act would require the

disclosure of any “interim” outcome in a chain of deliberative reasoning. In Cabinet,

where that deliberative chain culminates in draft legislation or regulations, it is still

protected from disclosure.

[176] The question arises: If the mandate letters are disclosable on the basis that

they are merely the outcomes of the Premier’s deliberations and are not therefore

part of Cabinet deliberations, what other decisions of the Premier sent in

documentary form to Cabinet ministers would not also be disclosable? The

ramifications could force large and ultimately unproductive changes in the way the

Premier communicates with ministers. Consider, for example, the content of a new

mandate letter written to a minister just appointed to replace an underperforming

minister. It is hard to imagine that such a new letter would not reflect in its

instructions to the new minister the Premier’s displeasure with the performance of

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the old minister, quite likely the subject of Cabinet discussion, especially when

compared to the mandate letter to the old minister.

(ii) The Premier is not separate from Cabinet

[177] As the above discussion of Order PO-1725 reveals, it is a novel proposition

– one that I reject in this case – that the Premier’s deliberations as head of Cabinet

can be separated from those of the rest of Cabinet, specified by the Commissioner

several times as “Cabinet as a whole”, for the purpose of applying the Act.⁹⁶

[178] Drawing a hard line between the Premier’s deliberative process and that of

the rest of Cabinet would not respect the way Cabinet functions because it would

interfere with “the subtle interplay of formal and informal power [that] maintains and

animates an effective institutional separation between the legislature and the

executive.”⁹⁷Doing so would be contrary to the instructions given to the Williams

Commission, and faithfully reflected both in its Report and in the Act, that reforms

be “compatible with the parliamentary traditions of the Government of Ontario.”⁹⁸

⁹⁶The Premier is not generally set apart from Cabinet. As Hogg notes: “Not only do conventions

presuppose the existence of law, much law presupposes the existence of conventions.” The Constitution

Act, 1867 was drafted the way it was because the framers knew that the extensive powers vested in the

Queen and Governor General would be exercised in accordance with the conventions of responsible

government, that is to say, under the advice (meaning direction) of the cabinet or in some cases the

Prime Minister. Modern statutes continue this strange practice of ignoring the Prime Minister (or provincial

Premier) and his cabinet. They always grant powers to the Governor General in Council (or the

Lieutenant Governor in Council) when they intend to grant powers to the cabinet. The numerous statutes

that do this are of course enacted in the certain knowledge that the conventions of responsible

government will shift the effective power into the hands of the elected ministry where it belongs”:

at para. 1-14 (footnote omitted).

⁹⁷Baker, at p. 83.

⁹⁸Williams Report, at p. 83.

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[179] The Premier sets the “agenda” of the government and Cabinet in the large

sense.⁹⁹His mandate letters reflect the outcome of a deliberative process on the

Premier’s part, assisted no doubt by staff and political advisers. However, as

Cabinet Office put it before the Commissioner, the letters also “initiate a continuing

deliberative process at Cabinet”.¹⁰⁰They signal the tasks – the agenda – that the

Premier expects each minister to undertake within the minister’s portfolio. In my

view, the Premier’s deliberations leading to the mandate letters, and the letters

themselves, are part of Cabinet’s deliberative process. The entire set of mandate

letters should be seen as the starting instructions for Cabinet in the new mandate,

or as “blueprint[s] to inform discussion at the Cabinet table”.¹⁰¹While they contain

some campaign-style language, to varying degrees they also go further and, in

some instances, signal the need for further policy work that will inevitably return to

Cabinet. They are records that would reveal the nature of Cabinet deliberations

within the meaning of “the substance of deliberations”.

(iii) The Commissioner overstates the holding in Order PO-1725

[180] The Commissioner overstates the holding in Order PO-1725 in asserting

that the records at issue in that case “were deliberative in nature because they

⁹⁹I do not use the word “agenda” in the technical meaning given by the Act: see Order PO-1725,

at para. 60.

¹⁰⁰Order PO-3973, at para. 27.

¹⁰¹Order PO-3973, at para. 27.

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provided a roadmap revealing how and why policy choices were made by the

Premier.”¹⁰²

[181] The holding in Order PO-1725 does not go that far. First, the Assistant

Commissioner noted: “While many of these references consist of abbreviations,

acronyms or initials, persons knowledgeable in the affairs of government would

likely be in a position to identify most of these references both as to subject matter

and the persons or entities involved.”¹⁰³He added:

To the extent that the records reveal the issues and

options upon which the Premier or the named individual

is reflecting in formulating and establishing Cabinet’s

“agenda” – used here in its broadest sense – these

records would tend to reveal the substance of this

deliberative process and, therefore, the substance of the

deliberations of Cabinet in the context of the Premier’s

unique role within that body.¹⁰⁴

[182] Note that the “substance of the deliberative process” can only mean the

subject matter under consideration, not the Premier’s actual deliberations. The

Assistant Commissioner noted: “It is only by virtue of the capacity of these entries

to reflect the Premier’s deliberations in establishing Cabinet’s priorities that they

fall within the introductory wording of section 12(1) by revealing the substance of

that exercise.”¹⁰⁵

¹⁰²Order PO-3973, at para. 130.

¹⁰³Order PO-1725, at para. 58.

¹⁰⁴Order PO-1725, at para. 59.

¹⁰⁵Order PO-1725, at para. 60.

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[183] There is, with respect, no way that the scheduling entries could reveal the

Premier’s actual deliberations, only their subject matter. The entries would provide

a form of roadmap as to the activities of the named employee, but they would not

reveal “how and why policy choices were made by the Premier.” The

Commissioner’s conclusion is completely speculative.

[184] To conclude, because the mandate letters are the product of the Premier’s

deliberations, in his role as head of Cabinet, and initiate Cabinet’s mandate going

forward, they are, perforce, part of Cabinet’s deliberations and are fully protected

from disclosure by the opening words of s. 12(1). As I stated at the outset, this

determination is dispositive of the appeal.

(d) The test applied

[185] The design of the s. 12(1) exemption aims to protect the confidentiality of

certain kinds of documents whose disclosure would reveal the nature of Cabinet’s

deliberations, that is, the topics, subject matters, things or the body of information

Cabinet would be discussing.

[186] The pertinent question is whether the particular record resembles or is

analogous to a record in the list or would otherwise reveal the nature of Cabinet

deliberations. The mandate letters are analogous to the records listed in

ss. 12(1)(d) and (e), respectively: “a record used for or reflecting consultation

among ministers of the Crown on matters relating to the making of government

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decisions or the formulation of government policy”, there being no doubt that the

Premier is a Cabinet minister; and “a record prepared to brief a minister of the

Crown in relation to matters that are before or are proposed to be brought before

the Executive Council or its committees”. It is no stretch to apply these words to

the mandate letters.

[187] The design of the s. 12(1) exemption emplaces metaphorical bollards in the

form of categorical exemptions in order to provide robust protection of the sphere

of confidentiality within which Cabinet can function effectively. Departing from this

interpretation would engage the Commissioner and the court in a deconstructive

exercise in which every questioned record would be parsed and pared down to

some irreducible core of actual communications at the Cabinet table. The

Commissioner’s analysis portends this outcome.

Is the Commissioner’s new test compatible with s. 12(1)?

[188] At the outset, I stated that I would also allow the appeal on the basis that the

Commissioner’s new test for an exemption from disclosure is fundamentally

incompatible with the text, context, and purpose of s. 12(1) of the Act. I address

the general approach to establishing an exemption, the Commissioner’s new test,

and problems with the new test and why it is unreasonable.

(a) Establishing an exemption from disclosure

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[189] It is axiomatic that the party invoking the s. 12(1) exemption must explain

why it applies. To some extent, that explanation will lay out the nature of the record

and how it relates to s. 12(1), both the opening words and any applicable

subparagraph. The forensic pattern is seen in the old case of Conway, which was

a civil action by a former probationary police constable against his former