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Review - Fresh Law - Promptness. Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner)
In Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner) (Ont CA, 2024) the Ontario Court of Appeal allowed an IPC appeal from an institution's JR, here where the institution was ordered to disclose the records to the requester despite their exercising several access exemptions.
Here the court considers a fresh law issue in a JR, where statutory amendments were introduced only at the JR stage, despite the applicant having oppourtunities to submit it earlier (at administrative stages):Arguments not raised before the adjudicator
[19] Finally, we agree with the dissenting judge that it is inappropriate to fault the adjudicator for not considering the changes to the statutory liquor licensing scheme and, in particular, s. 77(2) of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (prohibition against disclosure of sales of liquor) (“the LLCA”), on which the LCBO seeks to rely. These statutory changes occurred after the parties’ submissions were made to the adjudicator but before her order was released.
[20] The LCBO does not argue that these statutory changes directly apply but maintains that they are relevant to the overall economic and regulatory context in which the exemptions should be considered. The LCBO argues that this context includes that it does not enjoy an absolute monopoly on the sale of liquor, and that s. 77(2) of the LLCA now provides that information that would reveal the sales of an individual retail store of the LCBO store is confidential.
[21] It is well-established that an adjudicator’s decision will not be found unreasonable for failing to address an issue or argument that was never before it: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 22-26; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 52.
[22] The LCBO’s arguments were not made to the adjudicator. As the dissenting judge noted, the LCBO did not seek to submit them to the adjudicator, although it had almost a year to do so between the enactment of the statutory changes and the release of her order, nor did it seek a reconsideration of her order. In our view, it would therefore not be appropriate to send this matter back for a rehearing of these issues.
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