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JR - SOR - Cabinet Confidentiality. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (Div Ct, 2026) the Divisional Court dismisses a Crown JR, this brought against an IPC FIPPA appeal decision (and it's reconsideration) which, in part, ordered some Ministry of Transportation records disclosed.
Here the court considers, without reaching any firm conclusion, the JR SOR for issues of cabinet confidentiality - here in this Ontario FIPPA context:[6] The Supreme Court of Canada has repeatedly held that a reasonableness standard of review generally applies to decisions of the IPC in interpreting and applying disclosure exemptions under FIPPA: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 (CanLII), [2010] 1 S.C.R. 815, at para. 70; Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, at paras. 26-27.
[7] The Supreme Court more broadly confirmed in 2019 that there is a presumption that reasonableness is the applicable standard of review on a judicial review application: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 16. The presumption of a reasonableness standard can be rebutted in certain circumstances, such as where the legislature has prescribed a different standard of review or where there is a statutory appeal mechanism that carries with it a correctness standard: Vavilov, at paras. 33-52. A correctness standard also applies where the rule of law requires it, in constitutional questions, general questions of law of central importance to the legal system as a whole, and questions involving jurisdictional boundaries between two or more statutory delegates: Vavilov, at para. 53.
[8] In the case of Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2024] S.C.J. No. 4 (“AG v. IPC”), at para. 3, the majority of the Supreme Court acknowledged that Cabinet confidentiality “grants the executive the necessary latitude to govern in an effective, collectively responsible manner,” and that it is “essential to good government” by promoting “deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet deliberations.” The majority recorded that Lauwers J.A., in dissent in the Ontario Court of Appeal, had suggested that correctness should be the standard of review on issues surrounding Cabinet privilege, given the constitutional dimensions of the issues at play. Nevertheless, the majority in the Supreme Court declined to determine the issue of the appropriate standard of review, as in its view, even the deferential standard of a reasonableness review mandated correction of the IPC’s interpretation of the Cabinet records exemption in FIPPA in the circumstances of that case. The case had been argued throughout on a reasonableness standard, and the majority proceeded on that basis.
[9] A robust review will consider a decision reasonable that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law, including the statutory scheme, that constrain the decision-maker: Vavilov, at paras. 12-13, 85, 108. Irrationality, circular reasoning, unfounded generalizations, and fundamental misapprehensions of evidence or central arguments and inattention to the legal context are hallmarks of unreasonableness: Vavilov, at paras. 102-104, 125-128.
[10] However, in concurring reasons in AG v. IPC in the Supreme Court, Côté J. addressed the issue of standard of review, and considered the dictum from para. 59 of Vavilov that correctness review is necessary “to resolve general questions of law that are of ‘fundamental importance and broad applicability’, with significant consequences for the justice system as a whole or for other institutions of government”. She concluded (at para. 69) that there “is no principled reason why Cabinet privilege should be treated any differently – or is any less important to the legal system as a whole – than solicitor-client privilege or parliamentary privilege: AG. v. IPC, at paras. 67-71.
[11] To this point, majority or plurality decisions in higher courts have declined to decide that a correctness standard should displace the presumptive standard of reasonableness that applies in a review of tribunal decisions generally, and IPC decisions in particular. However, I do not need to decide in this case which standard should apply. It is apparent to me in the circumstances of this case that a correctness review and a reasonableness review will yield the same result. What the applicant asserts to be error is not error. By proceeding as he did, the IPC adjudicator came to a conclusion that was both correct and reasonable. . Canadian National Railway Company v. Halton (Regional Municipality) [cabinet confidentiality]
In Canadian National Railway Company v. Halton (Regional Municipality) (Fed CA, 2024) the Federal Court of Appeal allowed appeals, here brought by the CNR against "the Federal Court granting an application for judicial review and setting aside two decisions made under the CEAA 2012 in respect of the Project". The CEAA 'decisions' opposed CNR "approval to build and operate an intermodal logistics hub in Milton, Ontario (Project)".
Here the court comments on cabinet confidentiality [under Evidence Act (Cda) s.39], and how it may limit the cabinet's ability to fulfil it's JR reasonableness duties:[94] As the Supreme Court held in Vavilov, reasonableness review accounts for context, including the institutional setting and applicable constraints: paras. 88-98. The Governor in Council is limited in what it can provide by way of explanation for its decision, for practical and legal reasons, including Cabinet confidentiality. Cabinet confidentiality extends not only to records of Cabinet deliberations, but also to documents that reflect the content of those deliberations: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 at para. 97; Babcock v. Canada (Attorney General), 2002 SCC 57 at para. 18.
[95] A claim of Cabinet confidentiality was made under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 in respect of the material submitted by the Minister to the Governor in Council. Accordingly, and not atypically, the only "“reasons”" for the GIC Decision are in the Order in Council. I nonetheless agree with the Federal Court’s decision not to draw an adverse inference from the non-disclosure: FC Reasons at paras. 146-150 and 170. I decline to conclude that the GIC Decision was unsupported or based on an incomplete record: see, e.g., Parker v. Canada (Attorney General), 2023 FC 1419 at para. 222; Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42 at para. 218. Indeed, the section 39 certificate reveals that the Minister’s submission to the Governor in Council included a letter from the Minister to the President of the Treasury Board, a signed ministerial recommendation, a draft Order in Council, and accompanying materials from September and December 2020.
[96] I also conclude that the claim of Cabinet confidentiality does not thwart a proper review of the GIC Decision. Where reasons are limited, the reviewing court can nonetheless assess reasonableness by considering the decision, the outcome, and "“surrounding documents and circumstances and whatever bits of reasoning and rationale, if any, it has before it”": Portnov v. Canada (Attorney General), 2021 FCA 171 at para. 54 [Portnov], citing Vavilov at paras. 136-138. A review conducted in this manner can be meaningful and effective: Portnov at para. 54.
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