Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 742024 SCC 4 (40078)

“A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018. The letters set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request. It claimed the letters were exempt from disclosure under the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”), which protects, in its opening words, the confidentiality of records that would reveal the “substance of deliberations” of Cabinet or its committees. The CBC appealed to the Information and Privacy Commissioner of Ontario (“IPC or Commissioner”), who found that the letters were not exempt and ordered their disclosure. On judicial review, the Divisional Court found that the IPC’s decision was reasonable and a majority of the Court of Appeal agreed.”

The SCC (7:0) allowed the appeal and set aside the order of the IPC.

Justice Karakatsanis wrote as follows (at paras. 3-4, 7-8, 21, 33-40, 56-58, 63-64):

“…in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is “essential to good government” (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, [1986] 2 S.C.R. 637, at pp. 658-59).

All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees. The interpretation of “substance of deliberations” by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.


 

…I conclude that the IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.

Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the Premier’s deliberative process did not account for the broader context of the Cabinet’s deliberative process. For one, as head of Cabinet, the Premier’s deliberations cannot be artificially segmented from those of Cabinet. And far from being mere “topics” like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.



… I agree with the Attorney General of Ontario that the Commissioner did not adequately grapple with the broader legal and factual context in interpreting s. 12(1). As a result, he unreasonably rejected the arguments of Cabinet Office as to the impact that disclosure of the Letters would have on Cabinet’s deliberative process. The legal and factual constraints operating on s. 12(1) implicate constitutional conventions and traditions governing Cabinet confidentiality and Cabinet’s deliberative process. Given the centrality of such traditions and conventions to the proper functioning of our democracy, it was vital that the IPC’s decision meaningfully consider this context. His failure to do so led him to an unreasonably narrow interpretation of s. 12(1) and caused him to mischaracterize the Letters themselves.


 

Ministerial candour and solidarity are components of effective governance, to be sure, but they are only part of the foundation on which Cabinet confidentiality and effective governance rests — and thus the legal context within which s. 12(1) operates. To reasonably interpret the opening words of s. 12(1), it was therefore critical that the IPC fully consider the function of Cabinet within our system of government, and the bounds of confidentiality necessary for it to discharge that function effectively (see Criminal Lawyers’ Association 2010, at para. 40; C.A. reasons, at para. 163). The IPC’s failure to do so was material. It led him to: (1) ascribe an overly narrow purpose to s. 12(1); and (2) neglect important arguments made by Cabinet Office that informed the scope of the exemption.

First, had the IPC recognized that the fundamental focus of deliberative secrecy is effective government, the Commissioner could not have framed the purpose to focus only on “free and frank discussion among Cabinet members”. Rather, as Lauwers J.A. noted, a contextual interpretation of s. 12(1) instructs that the provision more broadly aims to establish the confidentiality necessary for the executive to function effectively (paras. 187 and 208).

Second, had the IPC framed the purpose of s. 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s. 12(1). Cabinet Office argued that, along with ensuring ministerial candour and solidarity, Cabinet secrecy also helps to ensure the deliberative process runs efficiently by preserving the confidentiality of deliberations until a final decision has been made and announced (IPC reasons, at paras. 30-32; A.R., vol. III, at pp. 90, 101-2, 228 and 232). In this Court, Cabinet Office and the intervener the Canadian Civil Liberties Association submitted that the Cabinet secrecy convention is aimed at the efficiency of the deliberative process (A.F., at paras. 11 and 54; I.F., at paras. 7-8). This argument rests on the third rationale underlying the convention of Cabinet secrecy. Lord Reid famously explained the value of Cabinet confidentiality to government efficiency in Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 952, in words quoted with approval by this Court in Carey, at pp. 658-59:

  • [The premature disclosure of Cabinet secrets] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.

The prerogative to determine when and how to announce Cabinet decisions is grounded in the harmful impact that premature disclosure of policy priorities can have on the deliberative process. As Professor Campagnolo explains, as a matter of convention, the efficiency of the deliberative process justifies “keeping Cabinet proceedings confidential until a final decision is made and announced by ministers” (Behind Closed Doors: The Law and Politics of Cabinet Secrecy (2021), at p. 26). Publicizing Cabinet’s decision-making process before the formulation and announcement of a final decision “would increase the public pressure that stakeholders put on ministers and give rise to partisan criticism from their political opponents”; this scrutiny “would ultimately paralyze the collective decision-making process” (p. 26).

Because the IPC largely did not engage with this important argument, he did not acknowledge Cabinet Office’s submission that determining “when and how” to communicate policy priorities to the public and opposition parties is itself an important part of Cabinet’s deliberative process (A.R., vol. III, at p. 103 (emphasis added); see also White, at pp. 22-23). Materials presented to Cabinet seeking a decision on a policy matter invariably include a communications strategy, which also requires Cabinet deliberation and approval (see, e.g., Privy Council Office, A drafter’s guide to cabinet documents (2013), at pp. 6, 11 and 27). Cabinet may charge individual ministers with public communications related to their respective portfolios. And as a matter of tradition, Cabinet often makes important announcements of policy decisions in the Legislative Assembly (Williams Report, at p. 286).

That is what happened in this case. The day after the Letters were distributed to Cabinet ministers, the Lieutenant Governor delivered the new government’s Speech from the Throne in the Ontario Legislative Assembly, setting out the government’s agenda for the legislative session (Office of the Premier, A Government for the People: Speech from the Throne, July 12, 2018 (online)). Certain policy priorities named in the Letters were announced, while others were kept confidential. And the priorities that were announced were framed at a high level of generality not necessarily reflective of their description in the Letters. Clearly, government’s desire to make information public is not relevant to the question of whether that information is protected. However, it shows how the substance of Cabinet deliberations also encompasses discussion of when and how to communicate government priorities.

The failure to engage meaningfully with Cabinet Office’s arguments about the fundamental underpinnings of Cabinet confidentiality had implications for the IPC’s interpretation of the scope of s. 12(1). The IPC concluded that “outcomes” of the deliberative process are not encompassed by the opening words of s. 12(1), full stop, without acknowledging that an important part of Cabinet confidentiality is government’s prerogative to decide how and when to announce policy priorities (see para. 104). Because the IPC ultimately characterized the Letters as non-exempt outcomes or products of the Premier’s deliberative process, as I explain below, this omission was material.

As Vavilov makes clear, failing to meaningfully grapple with central arguments raised by the parties is a marker of unreasonableness (para. 128); and overlooking a salient part of statutory context is unreasonable where the decision maker may have arrived at a different interpretation had it considered the key element (para. 122).


 

Finally, the IPC concluded that the Letters were not exempt because even the priorities that would return to Cabinet in the future constituted mere “topics” or subject matters of potential future deliberations. This conclusion, too, was tainted by a failure to evaluate the Letters in context. The IPC stated that topics or subject matters of Cabinet deliberations will not be protected under s. 12(1) unless their disclosure would permit accurate inferences to be drawn as to the substance of those deliberations (paras. 99-101). However, the IPC did not consider the broader context in discerning whether the Letters met his test.

As noted, the Letters are communications between the Premier and his Cabinet colleagues relating to policy priorities that are or will be before Cabinet; they cannot be written off as mere “topics” like general items on an agenda. The Letters reveal the Premier’s initial views on priorities for the new government — priorities subject to change as the deliberative process unfolds. The communication of the Premier’s initial views to other members of Cabinet are part of Cabinet’s decision-making process, and will be revealing of the substance of Cabinet deliberations when compared against subsequent government action.This context is crucial. And it mitigates the IPC’s concern that exempting priorities contained in mandate letters would result in the exemption “encompass[ing] any record that was not placed or intended to be placed before Cabinet if it contains information that Cabinet Office claims may become the subject of a future Cabinet meeting” (para. 118). The IPC’s characterization of the Letters as mere topics thus rested on a fundamental misapprehension of the factual and legal context, ran counter to the text of the Letters and was unreasonable (see Vavilov, at para. 126).

In sum, the IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process. The IPC’s lack of appreciation for the contextual constraints bearing upon its decision led him to unreasonable interpretive approaches and conclusions. He characterized the Letters as outcomes of the Premier’s deliberative process; found they were mere topics that did not permit accurate inferences as to Cabinet deliberations; and required evidence from Cabinet Office to show that disclosure of the Letters would permit accurate inferences to be drawn as to “actual Cabinet deliberations at a specific Cabinet meeting” (para. 100; see also paras. 116-17). As a result, the IPC’s narrow interpretation of the “substance of deliberations” was unreasonable. And even on his understanding of the provision, his application of the provision to the Letters was unreasonable. The Letters, along with the representations of Cabinet Office, were clearly sufficient to establish the Letters fell within s. 12(1). The IPC’s decision ordering disclosure must be set aside.


 

As to remedy in this case, where “the interplay of text, context and purpose leaves room for a single reasonable interpretation”, it “would serve no useful purpose” to remit the question to the original decision maker (Vavilov, at para. 124). Here, statutory text, purpose, and context lead inexorably to the conclusion that the Letters are protected from disclosure under s. 12(1)’s opening words. I would not remit the matter to the IPC. I would allow the appeal and set aside the order of the IPC, with costs to the appellant payable by the CBC. The private record of proceedings filed with this Court will remain in the Court file but shall be confidential, sealed, and not form part of the public record.”