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JR - SOR - Exception - 'Central Importance to the Legal System' (2). 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".
Here the court considers the JR SOR exception for issues of 'central importance' to the legal system as a whole:[26] For an exception of the presumptive reasonableness standard of review to apply, the issue must be a general question of law of central importance to the legal system as a whole. Questions of law of "central importance" usually involve determination of issues necessary for the proper functioning of the justice system, and therefore, there is a need for uniform and consistent answers. These issues have included solicitor-client privilege, res judicata, abuse of process, and parliamentary privilege: Vavilov, at paras. 59-60.
[27] The question raised in this case may be an important legal issue, but the mere fact that there is a question on an important legal issue or of wider public concern is insufficient for a question to be a question of law of central importance. The Applicant has not demonstrated how the decision in this case would impact the administration of justice as a whole. The question in this case is about the right to access information found in the MFIPPA, in a specific, fact-driven context: see YUDC v. Information and Privacy Commissioner, 2022 ONSC 1755.
[28] In his factum, the Applicant relies heavily on the case of Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, leave to appeal refused [2019] S.C.C.A. No. 38285, which held that the correctness standard applied to review a decision regarding the interpretation of the term "custody or control" in freedom of information legislation, in the context of information held in the files of the Children's Lawyer. In that case, the father requested all notes and information from the Children's Lawyer, by making a request to the Ministry of the Attorney General ("MAG"). The adjudicator and this Court found that the documents were in MAG's custody and control. The Court of Appeal ultimately found that, given the context in which the records were created, and the purpose they serve, the records were not in MAG’s care and control and ought not be produced.
[29] The issue in Ontario (Children's Lawyer) was specifically about solicitor-client privilege and the role of the Children's Lawyer. The Court of Appeal found that the unique role of the Children's Lawyer and the issue of solicitor-client privilege are fundamental to the proper functioning of the legal system, and thus, reviewable on a standard of correctness.
[30] Those unique facts do not exist in the case before this Court. Further, Ontario (Children's Lawyer) was decided before the Supreme Court of Canada released Vavilov, which clarified the standard of review.
[31] I find that there is no basis for departing from the presumptive standard of review of reasonableness in this case.
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