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Judicial Review - SoR - Reconsideration

The issue here is whether the fact that a proceeding is a reconsideration - a common administrative repeat hearing - merits an exception to the normal 'reasonableness' standard of review for JRs.

. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court considers what the standard of review is with respect an issue of law in the judicial review of a FIPPA IPC reconsideration:
[34] Neither York nor YUDC made specific submissions about the standard of review applicable to considering the denial of a request for reconsideration, with the exception that YUDC made submissions in relation to the burden of proof applied by the Adjudicator as it related to the assessment whether the records were under the control of York within the meaning of s. 10(1) of FIPPA. YUDC submits that the question of the onus of proof applied by the Adjudicator in the Reconsideration Order is an issue of central importance to the legal system as a whole because in this case the central issue in the reconsideration request related to the IPC’s jurisdiction, and thus the correctness standard of review should apply.

[35] I do not accept this submission. As I explain in more detail below, the issue in relation to the onus of proof relates solely to the onus imposed in the context of an application for reconsideration under the IPC Code of Procedure. This issue is limited to the access to information context, and further limited to the context of a party seeking reconsideration after an order has been made by an adjudicator. This issue involves the IPC interpreting its own Code of Procedure. It raises no issue of central importance to the legal system. The standard of review is reasonableness. I note as well that in a pre-Vavilov decision, the Ontario Court of Appeal recognized that reconsideration under the IPC Code of Procedure is a discretionary decision, and that a decision of the IPC on reconsideration is entitled to deference: Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275, 433 D.L.R. (4th) 514 at paras. 124-127.



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