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FOI (Ont) - Control. Teper v. Information and Privacy Commissioner of Ontario
In Teper v. Information and Privacy Commissioner of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed an MFIPPA JR, here against an IPC ruling that "the records requested were not in the TDSB's care or control and that the TDSB [SS: 'Toronto District School Board'] conducted a reasonable search for any responsive records".
The court considers the issue of an institution's 'custody and control' of records (under Ontario MFIPPA [s.4(1)]), here where the records related to the retention by a school board of an Integrity Commissioner to investigate a complaint against a trustee of breach of the Board's Code of Conduct:Was the interpretation and application of s. 4(1) of the Act reasonable?
[34] The Applicant submits that the IPC was wrong in its interpretation and application of the law to the facts in this case. The Board submits that the IPC did not err, and that the records, if they exist, are in the custody or control of the IC, not the Board.
The Law:
[35] The parties agree that the IPC correctly identified the relevant tests in its decision:[10] Section 4(1) establishes the right of access under the Act. That section reads, in part:Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless... [emphasis added]. [11] This section makes it clear that the Act applies only to records that are in the custody or under the control of an institution. A record will be subject to the Act if it is in the custody or under the control of an institution; it need not be both.
[12] A finding that a record is in an institution's custody or control does not necessarily mean that a requester will be provided access to it. Such a record may be excluded from the application of the Act under one of the provisions in section 52, or may be subject to a mandatory or discretionary exemption at sections 6-15.
[13] The courts and the IPC have applied a broad and liberal approach to the custody or control question. The IPC has developed a non-exhaustive list of factors to consider in determining whether or not a record is in the custody or control of an institution.
[36] There is no dispute between the parties that the TDSB is an institution under the Act. The question is whether the documents are in the TDSB's custody or control.
[37] The Supreme Court of Canada set out a two-part test for determining whether records are under the control of an institution: Canada (Information Commissioner) v. Canada (Minister of Nation Defence), 2011 SCC 25, [2011] S.C.R. 306, at paras. 49-60:(a) Do the contents of the documents relate to a department matter; and
(b) Could the institution reasonably expect to obtain a copy of the documents on request. [38] There was no dispute between the parties that the documents relate to a department matter, but the question is whether the Board could reasonably be expected to obtain a copy of the documents on request.
[39] In Ontario (Children's Lawyer), the Court of Appeal set out various factors to consider when determining whether an institution has "control" of the records and could reasonably be expected to obtain a copy of the records on request.
[40] In considering the second part of the test, on whether the Board could reasonably expect to obtain a copy of the records, the IPC weighed the various factors relevant to the "control" and "custody" issues including those set out in Ontario (Children's Lawyer). The IPC concluded that it was not satisfied that the Board had control over or could expect to obtain the records sought by the Applicant.
....
[42] Under the Education Act, R.S.O. 1990, c. E.2, the Board is responsible for investigating an allegation that a trustee has behaved in a way contrary to the Code. The Applicant submits that the IPC erred because the TDSB cannot abdicate their responsibility to investigate the allegation of trustee misconduct and therefore, cannot transfer custody and control of the related records. The Applicant relies on Ontario Criminal Code Review Board v. Hale (1999), 1999 CanLII 3805 (ON CA), 47 O.R. (3d) 201 (C.A.), in which the Court of Appeal held that the Board could not avoid disclosure of back up tapes, by entering into arrangements with third parties to hold the records. There, the Board replaced their own reporters with independent court reporters to do the very same function previously done by their own reporters, and then suggested the contractors could not be compelled to provide the records. The Court found that the Board would have a right to possession of the tapes. The case before this Court is very different and the IPC addressed this issue.
[43] The Applicant also submits that had the Board requested a copy of the investigator's report, they could have reasonably expected a copy of the report, given that the IC quoted and relied on the report.
[44] The IPC agreed with the Applicant that the Board is responsible for investigating an allegation that a trustee has behaved in a way contrary to the Code. In their reasons, the IPC discussed that the Board set up a process for a complaint of this nature to go through the IC's office. The process ensures that the IC conducts their investigations in an impartial and independent manner, to avoid the IC being subjected to "undue influence" in its investigations. A finding that the IC is merely an officer of the board (or an employee, as in Hale) would erode the important values of the IC's independence and impartiality from the Board in the context of the IC's investigatory and reporting functions.
[45] The IPC addressed this issue as follows:[93] The content of the records relates generally to the board's mandate and functions. However, in my view, the content of the records is more accurately described as relating to the mandate and functions of the IC specifically. While it is true that the board itself has the statutory duty to ensure compliance with the Education Act, it has set up the IC and an independent body to carry out the function of the investigating and reporting on allegations of misconduct. Ultimately, the board carried out its own statutory duties by receiving the IC's reports and recommendations and taking whatever actions the board deems appropriate. [94] As a result, this factor can be considered to weigh in favour of a finding that the board controls the records. However, because of the distinction between the board's and the IC's roles, I find that it carries a low weight.
[46] From reviewing the reasons, the IPC was alive to the various issues in determining whether the Board had custody or control of the requested records and addressed each of the issues and factors in its decision. The IPC's interpretation of the MFIPPA was reasonable and justified in light of the facts before it. Absent exceptional circumstances, a reviewing court will not interfere with factual findings.
[47] Based on reviewing the IPC's reasons, and the record before the court, I find the decisions to be reasonable. The IPC correctly set out the law under the MFIPPA and applied the law to the facts. The IPC also assessed the relevant factors to arrive at their decisions. . YUDC v. Information and Privacy Commissioner
In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court judicially reviewed whether records were under the control of the institution:The Relevant law
[38] In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, the Supreme Court set out a two-part test for assessing whether records are under the control of an institution subject to access to information legislation (at paras. 49-60):(i) Do the contents of the document relate to a department matter; and
(ii) Could the government institution reasonably expect to obtain a copy of the document on request? [39] The parties agree that the test from National Defence is the applicable test to assess whether records are “under the control” of an institution subject to access to information legislation. The test from National Defence is the test that the Adjudicator applied in this case.
[40] In National Defence, the Supreme Court recognized the importance of interpreting the “control” provisions of access to information legislation in a manner consistent with the purpose of the legislation. As a result, the Court held that “the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information” (at para. 54). In light of this approach, the Court provided guidance on how each of the two steps of the analysis should be approached (at paras. 55 and 56):Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. [emphasis in original] [41] The factual context at issue in National Defence was different that the context in this case. National Defence involved the assessment of whether records in a ministerial office (which was not subject to federal access to information legislation) were under the control of a government department (which was subject to the legislation). Although the context was different, the problem is the same as in this case – when are records possessed by an entity not subject to access to information legislation in the custody or control of an institution subject to the legislation, such that the right of access applies?[2] The test in National Defence is contextual and requires a decision-maker to consider all of the circumstances in assessing whether records are under the control of an institution subject to the act. Thus, it is flexible enough to apply to a variety of factual contexts.
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