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ACCESS TO INFORMATION AND PRIVACY - Access to information - Legislation - Provincial and territorial - Right to information - Appeals and judicial review - Standard of review - Reasonableness - Privacy and information commissioners

Wednesday, March 29, 2017 @ 9:04 AM  


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Application by the Children’s Lawyer for Ontario for judicial review of the Information and Privacy Commissioner of Ontario’s (IPC) decision ordering the Attorney General for Ontario (MAG) to issue a decision respecting an access request under the Freedom of Information and Protection of Privacy Act (FIPPA). A parent whose children the Children’s Lawyer represented in a custody dispute sought production of records relating to the dispute. Some of the records were privileged. The access to information request was denied based on the Children’s Lawyer’s view that the FIPPA did not apply to private litigation files relating to her representation of a child under s. 89 of the Courts of Justice Act. In this capacity, the Children's Lawyer stated that she represented the private legal interests of the child and did not act on behalf of MAG. The IPC concluded that the records were in “the custody or under the control” of MAG and ordered MAG to issue an access decision to the requesting parent. The Children’s Lawyer sought judicial review of the IPC order and MAG supported the Children’s Lawyer’s position.

HELD: Application dismissed. The IPC’s decision was reasonable. There was no basis to conclude that compliance with the decision would require the Children’s Lawyer to disclose records protected by solicitor-client privilege. The IPC reasonably focused on whether the Children’s Lawyer had custody or control of the records. The Children’s Lawyer was part of MAG and MAG had delegated to the Children’s Lawyer the authority to make access decisions concerning its records. The Children’s Lawyer’s argument that her office was not part of MAG for the purposes of FIPPA with respect to appointments under s. 89(1) of the Court of Justice Act was rejected. The IPC properly considered the purposes of FIPPA in arriving at its decision.

Children's Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), [2017] O.J. No. 480, Ontario Superior Court of Justice - Divisional Court, K.E. Swinton, C.J. Horkins and M.G. Emery JJ., February 2, 2017. Digest No. 3644-010