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FOI (Municipal) - Personal Privacy [s.14]. Ellacott v. Waterloo (Police Board)
In Ellacott v. Waterloo (Police Board) (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, this against a summary judgment dismissal of "her lawsuit against the respondent, Waterloo Regional Police Services (the “Waterloo Police”), its chief and two employees, her central allegation was that they unlawfully disclosed to her employer that she was married to a federal parolee, thereby causing her to lose her job as a supervisor at a halfway house for federal parolees".
Here the court considers police disclosure of personal information under MFIPPA and the Police Services Act:[16] We are not persuaded that the motion judge made any error of law or principle, or any palpable and overriding error of fact or mixed fact and law. His conclusions are consistent with the relevant provisions of the Police Services Act, the Municipal Privacy Act [SS: should read 'Municipal Freedom of Information and Protection of Privacy Act'], and the principles governing the duty of care and the right to privacy.
[17] The appellant relies on R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 43, which states that:People provide information to police in order to protect themselves and others. They are entitled to do so with confidence that the police will only disclose it for good reason. The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals. [18] As the motion judge found, however, there was “good reason” for DC Tremblay to disclose the appellant’s employment to Mr. Ellacott’s parole officer. Paragraph 32(e) of the Municipal Privacy Act states that:An institution shall not disclose personal information in its custody or under its control except ...
(e) where permitted or required by law or by a treaty, agreement or arrangement made under an Act or an Act of Canada. [19] Section 41(1.2) of the Police Services Act permits disclosure of personal information about an individual in accordance with the regulations, where disclosure is made for the purpose of law enforcement, for correctional purposes, or for the protection of the public. Per the regulation under the Act (Disclosure of Personal Information, O. Reg. 265/98, s. 5), a police officer may disclose personal information about an individual if the individual is under investigation for an offence under the Criminal Code, R.S.C. 1985, c. C-46.
[20] On the evidence before him, the motion judge found that DC Tremblay’s disclosure was for purposes permitted under the Police Services Act while the appellant was under investigation for the Criminal Code offence of animal cruelty. He noted that, even if DC Tremblay had disclosed personal information, the police chief and Waterloo Police are shielded from liability for such disclosure provided it was made in good faith, pursuant to s. 49(2) of the Municipal Privacy Act, which states that:No action … lies against a head, or against a person acting on behalf or under the direction of the head, for damages resulting from the disclosure or non-disclosure in good faith of a record or any part of a record under this Act. ... [21] We see no error in the motion judge’s analysis, nor in his finding that there was no evidence that DC Tremblay failed to meet the relevant standard of care, based on the principles in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. . Carling (Township) v. Ontario (Information and Privacy Commissioner)
In Carling (Township) v. Ontario (Information and Privacy Commissioner) (Div Court, 2024) the Divisional Court dismisses an FOI JR, with the underlying issue being requests for municipal employment contracts which were assessed under MFIPPA s.14(1) [SS: 'Personal privacy']:[2] The Township withheld disclosure of the information, relying upon the mandatory personal privacy exemption set out at s. 14 (1) of the Act. The Requester appealed the Township’s decision to the Information and Privacy Commissioner of Ontario (the “IPC”).
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[4] By Order MO-4335, dated February 22, 2023 (the “Order”), Adjudicator Lan An determined that some, but not all, of the requested information was “personal information” as defined under s. 14(1) of the Act.
[5] Section 14(1) requires institutions to withhold personal information unless an exception applies. The relevant exemption is s. 14(1)(f), which permits disclosure of personal information if the disclosure does not constitute an “unjustified invasion of personal privacy”.
[6] Section s. 14(4)(a) provides that disclosure does not constitute an unjustified invasion of personal property if it “discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution” (emphasis added).
[7] The Adjudicator concluded that the information relating to termination or severance constituted “benefits” and was subject to the exemption in s. 14(4)(a) of the Act. On that basis, the Adjudicator issued the Order, requiring the Township to disclose the requested information to the Requester.
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Statutory Framework
[16] Section 2(1)(a) to (h) of the Act defines “personal information” to mean “recorded information about an identifiable individual, including,” information relating to the individual’s history.
[17] Section 14(1) of the Act directs that a request for disclosure of “personal information” shall be refused except if the disclosure falls within the exemptions listed at ss. 14(1) (a) to (f). The exemption at s. 14(1)(f) is “if the disclosure does not constitute an unjustified invasion of personal privacy”.
[18] Section 14(2) sets out the criteria to be considered in determining whether a disclosure of personal information constitutes “an unjustified invasion of personal privacy”.
[19] Section 14(3) of the Act reads as follows:Presumed invasion of privacy
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
(d) relates to employment or educational history;
(e) was obtained on a tax return or gathered for the purpose of collecting a tax;
(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or
(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations. [20] Section 14(4) of the Act creates exemptions to s. 14(3). It reads as follows:(4) Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,
(a) discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution;
(b) discloses financial or other details of a contract for personal services between an individual and an institution; or
(c) discloses personal information about a deceased individual to the spouse or a close relative of the deceased individual, and the head is satisfied that, in the circumstances, the disclosure is desirable for compassionate reasons.
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