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Fairness - Duty of Tribunal to Provide Legal Advice?. Canadian Home Healthcare Inc. v. Halton Healthcare Services and Information and Privacy Commissioner of Ontario
In Canadian Home Healthcare Inc. v. Halton Healthcare Services and Information and Privacy Commissioner of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against FIPPA IPC arbitration orders that "collectively, require disclosure of a portion of a Joint Venture Agreement (the “JVA”) and accounting records (the “Payment Records”) between the Applicant and the Respondent Halton Health Services (“HHS”)".
Here the court considers the bold argument that the IPC has a 'procedural fairness' obligation to provide legal advice to a party:The Procedure was Fair
[18] The Applicant argues that the IPC breached the duty of procedural fairness by:. Not informing its counsel of all other possible arguments it could make;
. Providing it with an unclear description of the test to be applied; and,
. Not explaining that other sections of FIPPA (beyond s. 17(1)) could have been applicable. [19] There is no legal authority to support the first claim. If generally accepted, such a “duty” would impose an unreasonable obligation on the IPC. Even where the Baker factors impose heightened procedural fairness requirements, courts have refused to impose similar obligations on administrative decision-makers (Brown v. Information and Privacy Commissioner of Ontario, 2021 ONSC 8081 (CanLII) (Div. Ct) at paras. 26-29; Ibabu v Canada (Citizenship and Immigration), 2015 FC 1068 at para. 36).
[20] In addition, the Applicant was represented by counsel throughout. The IPC is entitled to assume that lawyers know the substantive law and procedure for the areas of law in which the lawyer practises. The IPC cannot be expected to second guess a lawyer’s decisions on behalf of a client.
[21] Regarding the second complaint, the Respondent provided substantial guidance to the Applicant on the interpretation of relevant provisions in FIPPA in its “Notice of Inquiry”, dated December 24, 2021, Public Record, Vol. 1, Tab 12B, pp.126 to 136. This document included the definition of information that is “supplied”, and whether its disclosure could reasonably be expected to cause harms. The IPC also provided its “Inquiry Checklist”, Public Record, Vol. 1 Tab 12D, p. 142 to assist the Applicant in making its submissions.
[22] The Applicant does not identify how, specifically, the information the IPC provided to the Applicant’s counsel is unclear.
[23] With respect to its last complaint, the Respondent maintains that any suggestion that the IPC should have advised the Applicant about other possible exemptions to the right of access (beyond s. 17(1)), results from the Applicant’s misapprehension of its role in the statutory appeal process administered by the IPC.
[24] The Applicant is not an institution under FIPPA. The institution subject to FIPPA is HHS. The Applicant became involved in the IPC’s appeal process specifically because the information responsive to the access request “might contain information referred to in subsection 17(1)”. The Applicant was entitled to commence an appeal with the IPC specifically because it was notified by HHS that information referred to in s. 17(1) might be in issue and HHS decided to disclose this information. The submission that it should have been informed about other sections in FIPPA overlooks the fact that s. 17(1) is the basis for the Applicant’s participation in the IPC’s appeal process. In any event, the IPC disputes that any additional exemptions in FIPPA are relevant.
[25] In that regard, IPC specifically asked the Applicant to raise any additional factors beyond those raised in the Notice of Inquiry. The checklist sent by the IPC to the Applicant further asked whether there are “other issues not set out in the Notice of Inquiry you wish to address?” In emails between them, counsel for the Applicant then asked the IPC whether he was “limited to the grounds of appeal that are listed in the Notice of Inquiry?” The IPC responded that he was invited to “raise any additional factors that you believe to be relevant”. The Applicant’s counsel later suggested he was “very likely” to raise new exemptions in FIPPA beyond s. 17(1), and the IPC provided him with information to assist him should he wish to raise those exemptions.
[26] Despite this, the Applicant did not raise any additional exemptions in its representations to the IPC. Nor did the Applicant raise the procedural fairness objections, that it has raised in this application for judicial review, in its request for reconsideration before the adjudicator.
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