FOI - Information and Privacy Commissioner (IPC) (Ontario). YUDC v. Information and Privacy Commissioner
In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court, on judicial review under a reasonableness question of law standard, upheld the FIPPA IPC's decision that reversed the onus on a reconsideration onto the party resisting disclosure:
 This brings me to York and YUDC’s submission in relation s. 18.01(b) and the onus on a reconsideration application in relation to the issue of whether the four records at issue were under control of York within the meaning of s. 10(1) of FIPPA. Section 18.01(b) addresses “some other jurisdictional defect in the decision”.
 The fundamental distinct argument made by York and YUDC in relation to s. 18.01(b) is that the s. 10(1) arguments raised by York and YUDC relate to the IPC’s jurisdiction over the records, and as such, they submit, the Adjudicator erred in the Reconsideration Order in placing the onus on York and YUDC to show that the four records were not under control of York.
 I will not quote all of the Adjudicator’s reasons in relation to the onus as they are somewhat lengthy, and intertwined with her analysis of s. 10(1) of FIPPA, which I have addressed above. The key components of her analysis of the onus were as follows:
• York did not decide the initial access request on the basis that the records were not in its custody or control, but rather found that the ss. 17(1) and 18(1) exemptions applied to exempt the records from disclosure (Reconsideration Order at para. 13). I find that the Adjudicator did not err in allocating the onus to York and YUDC to show that the records were not in the custody of or under the control of York, in light of the context of the issue being raised in a request for reconsideration. The Adjudicator’s decision that, in the context of this issue being raised for the first time in the reconsideration request, the onus lay with York and YUDC to show that the records at issue were not in the custody or control of York is reasonable.
• Neither York nor YUDC raised the issue of whether York had custody or control of the records at issue in the original IPC appeal. She found that York and YUDC “had ample opportunity” to raise the custody or control issue in the appeal, and did not do so. She further found that the fact that York in its submissions took the position that the ss. 17(1) and 18(1) exemptions applied to the records at issue was implicitly a position that it had custody or control of the records (since the structure of FIPPA is such that there is no need to claim exemptions for records not in the custody of or under the control of an institution subject to FIPPA because FIPPA does not apply if records are not under the custody or control of an institution) (Reconsideration Order at paras. 14, fn 2, 26).
• She found that the reconsideration process is not intended to be a forum for parties to reargue their cases, relying on previous IPC orders on this issue as persuasive. One of the factors discussed in the previous orders she referred to is the importance of finality of proceedings before administrative tribunals (Reconsideration Order at paras. 27-29).
• She accepted that an error with respect to the issue of the institution’s custody or control of the records at issue could amount to a jurisdictional issue under s. 18.01(b). However, she held that since the custody or control issue was raised for the first time on the reconsideration request, and not during the appeal, York and YUDC bore the onus to show that the records were not in the custody of or under the control of York. She held that allowing the parties to raise the issue for the first time on reconsideration, and treat it as if it had been raised earlier, would undermine the principle of finality of the IPC’s orders (Reconsideration Order at paras. 30-32).
• She then explained why she found that York and YUDC had not established that the records were not in the custody or control of York (Reconsideration Order at paras. 32-71).
 The parties disagree on where the onus in relation to custody or control of the records under s. 10(1) of FIPPA would lie if the issue had been raised in the initial IPC appeal. The IPC position is that previous IPC orders place the onus on an institution to show that records subject to an access request are not in the custody of or under the control of the institution. The IPC submits that the reason for allocating the burden to the institution is that the institution has the information relevant to assessing whether the records are in the custody or control of the institution (i.e., a requester has no way to make this showing, since they have not seen the records and likely know nothing about how they are kept). Counsel for YUDC took the position that since custody or control of records by an institution is a threshold to the right of access existing, it must be established on a balance of probabilities that the records are in the custody or control of an institution subject to FIPPA. However, this issue was not fully argued by the parties, as it arose from questions from a member of the panel during oral argument. It is not necessary in this case for this court to decide the issue of where the onus would lie on the issue of custody or control if it had been raised at first instance in the IPC inquiry.
 The Adjudicator found that s. 18 of the IPC Code of Procedure places the onus on the party seeking reconsideration to show that there are grounds within one or more of s. 18.01(a), (b), or (c) to grant the reconsideration.
 I find that this is a reasonable interpretation of where s. 18 places the onus, based on both the text of s. 18.01, and the nature of a request for reconsideration.
 The opening words of s. 18.01 state: “The IPC may reconsider an order or other decision where it is established that there is [one of the grounds in (a), (b), or (c)]”. The underlined passage is reasonably interpreted to place the onus on the party seeking reconsideration to show that one of the grounds in s. 18.01(a), (b) or (c). Further, the context of a reconsideration also supports that the party seeking the reconsideration bears the onus to show that there are grounds for relief. Our system of justice, both in the courts and administrative tribunals, values efficiency of litigation, and finality. Where a party is seeking reconsideration of a decision, as here, which was made with the benefit of notice, an inquiry, and an opportunity to make submissions, the interests of efficient conduct of litigation and finality support an interpretation of this section as allocating the onus on a reconsideration to the party seeking reconsideration. This is an issue of interpretation by the tribunal of its own rules of procedure, as they apply to an issue under its home statute. The Adjudicator’s decision is owed significant deference in this context.
 Thus, I find that the Adjudicator’s decision that the onus was on York and YUDC to show that s. 18.01(b) (and indeed any of the grounds in s. 18.01) applied was reasonable. And as I have addressed above, her further conclusion that York and YUDC had not met their onus to show that the records were not in control of York was reasonable. The process before the IPC was fair, and the applicants have not shown any error by the Adjudicator.