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FOI (Ont) - Control. Ontario (AG) v. Ontario (Information and Privacy Commissioner)
In Ontario (AG) v. Ontario (Information and Privacy Commissioner) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought by the AG against two IPC orders that "found the Cabinet Office had control over those entries of Premier Ford’s personal cellphone call logs that related to government or departmental matters under s. 10(1) ['Right of access'] of the Freedom of Information and Protection of Privacy Act".
The case was about the respondent requester's concern that the Premier's practice of conducting their political work through their personal phones avoided FIPPA application, and thus kept details of such communications FIPPA-secret by removing them from the control of the cabinet office.
The case relied on leading doctrine from Canada (Information Commissioner) v. Canada (Minister of National Defence) (SCC, 2011) ('National Defence'):Cabinet Office’s Denial of Both Requests
[8] Cabinet Office denied both requests. Upon the Requesters’ appeal of the denials to the IPC (discussed further below), Cabinet Office submitted that previous instances in which the IPC found that personal records to be under an institution’s control should be distinguished for the following reasons, as set out in each of the Decisions, at para. 16:• The affected party’s personal cell phone logs are not in the physical possession of Cabinet Office.
• The appellant’s claims that the contents of the call logs are related to Cabinet Office matters are speculative and do not meet the National Defence test for control [see Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 (“National Defence”)]. Cabinet Office refers to Order MO-3607 in which the IPC held that general or speculative statements are not sufficient evidence that responsive records exist in a personal account. Cabinet Office submits that the call logs are inherently personal in nature and, therefore, have no concrete link to institutional business.
• There is a clear expectation of privacy with respect to the call logs. As such, it would be unreasonable and unwarranted for Cabinet Office to ask the affected party [the Premier] to provide Cabinet Office with his personal cell phone logs. Cabinet Office refers to Order MO-3068, in which the IPC determined that disclosing the City of Vaughan’s call logs between the city and the personal phone numbers of the City’s former mayor and manager would be an unjustified invasion of personal privacy. In that decision, the IPC found that calls from the former mayor and manager were made from their personal phone numbers and therefore, disclosing the information would reveal personal information. ....
The Decisions
[12] The IPC cited s. 10(1) of FIPPA, the “control test” from National Defence, and certain factors in the IPC jurisprudence and held that some of the “entries in the [call logs] related to government business are under the control of Cabinet Office.” The IPC ordered Cabinet Office to obtain those entries from the Premier.
[13] The IPC found that both parts of the control test per National Defence were met and it would be contrary to the purpose of FIPPA to find that entries relating to Cabinet Office matters on the call logs were not in Cabinet Office’s control.
[14] The IPC accepted that the Premier’s personal cellphone was used for personal and constituency matters but found it reasonable to conclude that it was also used for Cabinet Office matters because:(1) there were no calls on his government-issued cellphone for the same time period;
(2) he provided his personal cell number to members of the public; and
(3) it was unlikely that he received no Cabinet Office matter related calls on either phone. [15] The IPC accepted that the Premier’s cellphone was paid for by him and contains his personal information and that of other callers. The AG acknowledged that had the Premier been using his government issued cellphone, the records created in relation to Cabinet Office matters were producible. The IPC concluded that, because it was reasonable for Cabinet Office to obtain records created in relation to Cabinet Office matters conducted on a government-issued cell phone, it would also be reasonable for it to obtain records created in relation to Cabinet Office matters conducted on a personal cellphone.
[16] The IPC found the entries in the call logs relating to government business are under the control of Cabinet Office and that the call logs that relate to any calls pertaining to the Premier’s personal or constituency matters are not under the control of Cabinet Office. The Adjudicator held that Cabinet Office could reasonably expect that the Premier would produce the entries in the call logs that relate to government business on his personal cellphone if requested. It further found that it is reasonable to expect the Premier would produce information relating to government business from his personal call logs upon request.
....
[20] The presumptive right to access information held by public institutions is found at s.10 of FIPPA, which provides that:10. (1) Subject to subsection 69(2), 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,
(a) the record or the part of the record falls within one of the exemptions under sections 12 to 22; or
(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious. [21] While not absolute, the right of access to information held by public institutions has been found by the Supreme Court of Canada to be quasi-constitutional in nature as a derivative right under the freedom of expression guaranteed in s. 2(b) of the Charter:[2] Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 30.
[22] Transparency and access to information about the operations of institutions are critical to enabling the public to participate in the democratic process. The question of whether an institution has custody or control of a requested record is therefore to be interpreted broadly and liberally: National Defence, at para. 48.
[23] Once a record has been found to be in the custody or under the control of the institution, the record may still be protected from disclosure. The record may be subject to one of the exclusions in s. 65 of FIPPA that remove it from the application of FIPPA altogether, or to one of the exemptions from disclosure in ss. 12-22. Exemptions from the right of access in FIPPA include the mandatory exemption in s. 21(1)(f) from disclosure of personal information to third parties where disclosure would constitute an unjustified invasion of personal privacy (the “personal privacy exemption”) and the mandatory exemption in s. 12 for records that would reveal the substance of Cabinet deliberations (the “Cabinet records exemption”).
....
[38] At paragraph 43 of the Decisions, the Adjudicator quoted from para. 48 of National Defence in considering the concept of “control”:[“Control”] should be given its ordinary and popular meaning. Further in order to create a meaningful right of access to government information it should be given a broad and liberal interpretation…In reaching a finding of whether records are “under the control of a government institution”, courts have considered “ultimate” control a well as “immediate” control, “partial” as well as “full” control, “transient” as well as “lasting” control, and “de jure” as well as “de facto” control. While “control” is to be given its broadest possible meaning, it cannot be stretched beyond reason. In this case, “control” means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a “partial” basis, a “transient” basis, or a “de facto” basis. The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act. ....
[51] The AG urges a strict and narrow interpretation of “departmental matter” at the first stage of the National Defence test to determine whether a record is under an institution’s control. This is contrary to para. 43 of National Defence which holds that in order to create a meaningful right of access to government information, “control” should be given a broad and liberal interpretation.
[52] The Adjudicator found that “the entries in the call logs that resulted from the [Premier’s] government-related calls are the very type of information [FIPPA] was created to ensure public access to, subject to limited and specific exemptions such as the personal privacy exemption”: Final Order PO-4576-F, at para. 51. The IPC has had considerable experience in dealing with public officials using private devices for public business. Deference is owed to the “specialized knowledge” and “institutional expertise and experience” of the IPC and its adjudicators in reaching this conclusion: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, 488 D.L.R. (4th) 1, at para 18.
[53] In Vaughan (City) (Re), 2012 CanLII 44412 (ON IPC) (“Vaughan 1”) there was a request for freedom of information related to a personal cellular device of the then still sitting mayor and a former employee, for telephone logs created when both were employees of the city. The adjudicator held that calls made to or from telephone numbers that relate to the city including the mayor, city employees and other city organizations, would not constitute personal information for the purpose of s. 21(1) of FIPPA (para. 33). The adjudicator held that it was possible to review the listed telephone numbers and identify calls made to or from telephone numbers that relate to the city for the purpose of the request for freedom of information for telephone logs (para. 33). It was not unreasonable for the Adjudicator to reach the same conclusion in the Decisions in this case. Contrary to the AG’s submission, we do not agree that Vaughan 1 is distinguishable on its facts, as noted further below.
[54] In light of prior court decisions and IPC jurisprudence, we conclude that it was not unreasonable for the Adjudicator to conclude that call‑log records satisfy the first part of the National Defence test.
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[57] Under the second step of the National Defence “control” test, the decision maker must consider “all relevant factors” to determine whether the government institution could reasonably expect to obtain a copy of the document on request. The Supreme Court identified the main factors as “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”: National Defence, at para. 56. IPC jurisprudence has identified other non-exhaustive factors.
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[63] As noted above, the AG also argues that, pursuant to the Archives and Record Keeping Act, the Premier’s personal phone call logs could not be public records. However, it is not clear that the authority relied on by the AG (a publication by Archives Ontario on “Minister’s Public Records”[6]) supports that conclusion. That report highlights that personal records that contain government business may be a “public record” if they are not maintained separately:Personal, political and constituency records are not subject to the Archives and Recordkeeping Act, 2006 or the Freedom of Information and Protection of Privacy Act (FIPPA) when they are maintained and stored separately from ministers' public records. The Information and Privacy Commissioner has ruled, however, that these records may fall under the jurisdiction of FIPPA if they are integrated with the public records of the minister (Order P-267). Care should therefore be taken to ensure that ministers' and parliamentary assistants' personal, political and constituency records are organized, maintained and stored separately from ministers' public records. (Underline emphasis added. Bold in original.) [64] We conclude that the AG has not established that the Decisions unreasonably failed to consider all the relevant factors at the second part of the National Defence test. . 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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