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FOI (Ont) - Adjudication. Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner) [standard of proof]
In Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner) (Ont CA, 2024) the Ontario Court of Appeal allowed an IPC appeal from an institution's JR, here where the institution was ordered to disclose the records to the requester despite their exercising several access exemptions.
Here the court considers the 'standard of proof' at the administrative IPC adjudication stage:Standard of Proof
[10] We start with the adjudicator’s treatment of the standard of proof. As the dissenting judge stated, the adjudicator applied the correct “could reasonably be expected to” standard of proof required under the exemption sections of FIPPA on which the LCBO relies. The adjudicator cited the governing principles articulated by the Supreme Court in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 and Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674, that interpret the FIPPA standard. The Supreme Court in Ontario summarized the governing principles at para. 54, as follows:This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground [Citations omitted.] [Emphasis added.] [11] When the adjudicator’s reasons are read as a whole, it is clear that she applied the correct test. As the dissenting judge noted, the adjudicator did not require the LCBO to prove its alleged harms from the requested disclosure on a balance of probabilities, or to substantiate a causal connection or link beyond the “clear and direct connection between the disclosure of specific information and the injury that is alleged”, as instructed by the Supreme Court in Merck Frosst, at para. 197.
[12] The LCBO argues that the adjudicator failed to measure the LCBO’s evidence against the “middle ground” between “merely possible” and “probable” required under the Supreme Court’s articulated standard of proof. The LCBO submits that the adjudicator erred because she focussed on determining whether the evidence went “well beyond the merely possible or speculative” without articulating how far the evidence had to reach beyond the “merely possible”, and without articulating the upper-end limit of the “probable” end of the standard of proof. The LCBO argues that this error amounted to a misapplication of the legal standard, rendering the adjudicator’s decision unreasonable.
[13] We do not accept these submissions. It was clear that the adjudicator applied the correct standard and dealt with the crux of the LCBO’s evidence relevant to its submissions. ....
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[15] Moreover, it was unnecessary for the adjudicator to articulate a different test than the well-established test cited above for the standard of proof that the LCBO had to meet to claim exemptions from disclosure. As the Supreme Court further instructed in Ontario, at para. 54: “This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and ‘inherent probabilities or improbabilities or the seriousness of the allegations or consequences’” (citations omitted).
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