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FOI (Ont) - Freedom of Expression [Charter s.2(b)]. Cardoso v. LECA
In Cardoso v. LECA (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR where the IPC adjudicator failed to adequately consider it's administrative Charter s.2(b) Dore/Loyola jurisdiction, here where - while no Notice of Constitutional Question was served - case law had held that the Charter played a role in the FIPPA s.23 'public interest' exemption, which was raised:[3] Although other issues were raised on this application for judicial review, the applicants’ main focus is the alleged failure of the IPC Adjudicator to engage with the Canadian Charter of Rights and Freedoms, specifically the s. 2(b) guarantee of freedom of expression, including freedom of the press. The failure to address the Charter is the basis upon which I would grant this application, for the reasons set out below.
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[10] Within his [SS: IPC] submissions about s. 23 and the public interest, Mr. Cardoso cited and quoted from Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 37, as follows:[T]here is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. ... [11] The Criminal Lawyers’ Association case also arose from an access request under FIPPA that included an issue about s. 23.
[12] It is apparent from Mr. Cardoso’s submissions that he was not seeking any of the relief that would require the service of a notice of constitutional question either under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, or under the parallel rule at the IPC. He was submitting that the Charter was relevant to the public interest analysis in s. 23 of FIPPA.
[13] Mr. Cardoso, then unrepresented, did not mention what is sometimes referred to as a Doré/Loyola balancing analysis. The Doré/Loyola cases address the required approach to a Charter review of an administrative decision, by asking whether the decision reflects a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.
[14] In summary, the IPC Decision concluded as follows:....
(vi) On the Charter, the [SS: IPC] reasons for decision said as follows, at para. 76:The appellant [Mr. Cardoso] also appears to raise a constitutional argument, albeit in passing (not having taken the steps required to raise constitutional questions), submitting that “the disclosure of documents that would serve the public interest is such an important concept that it was even recognized by the Supreme Court of Canada as a potential Charter right”.
Footnote to paragraph: “The appellant cites Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 SCR 815.”
[Emphasis added.] ....
Charter Issues
[19] The applicants submit that the Adjudicator erred in failing to consider Charter rights and values, focusing on the s. 2(b) guarantee of freedom of expression and freedom of the press. The applicants submit that the Adjudicator should have both considered the Charter under s. 23 of FIPPA and engaged in a Doré/Loyola balancing of the LECA decision. Neither was done.
[20] The applicants rely on York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 91. The Supreme Court held that where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision.
[21] The applicants further rely on the Criminal Lawyers’ Association case, which Mr. Cardoso quoted in his submissions to the IPC as set out above.
[22] LECA acknowledges that the Adjudicator did not expressly reference the Charter (other than to say it was not properly raised). However, LECA submits that the Adjudicator’s discussion of the public interest under s. 23 implicitly considered and balanced freedom of expression. The IPC similarly submits that a Doré/Loyola balancing is embedded into FIPPA because its structure requires considering the public’s right to access as well as privacy interests. In short, the respondents do not dispute the relevance of the Charter but submit that it was implicitly addressed in the IPC Decision.
[23] I am not prepared to imply that the Charter was properly considered in this case. In my view, the single paragraph in the reasons for decision that mentions the Charter is inconsistent with an implication that the Adjudicator considered the Charter at all. The applicants submit that the adjudicator wrongly focused on the lack of a notice of constitutional question. I agree. As a result of that error, the Charter was ignored.
[24] I therefore conclude that the Adjudicator erred in failing to properly consider the Charter. Some of the reasons for decision may well overlap with what may be said in the consideration of freedom of expression and the public interest under s. 23, or a Doré/Loyola analysis, but that is insufficient.
[25] Given the stark nature of this error, even if the standard of review was reasonableness, this error alone would render the IPC Decision unreasonable.
[26] In the circumstances, the appeal to the IPC should be done anew. Given that the issues have developed somewhat since the original submissions to the IPC, the parties should have the opportunity for new or supplementary written submissions to the new adjudicator. In that regard, the issues would benefit from submissions on the Charter under s. 23 in particular, and the role of the Doré/Loyola analysis in this case, as well as any other submissions the parties choose to advance about this or the other issues on the appeal.
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