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Supreme Court finds Ontario mandate letters are cabinet deliberations

The majority of the Supreme Court found that mandate letters from the Ontario Premier to his cabinet were confidences and exempt from disclosure under subsection 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act. More specifically, the Court held that disclosure of the letters “would reveal the substance of [Cabinet] deliberations”.

The majority found that the reasonableness standard of review applied, but that the result would be the same even if the standard was correctness.

In the Court’s view, the Information and Privacy Commissioner did not adequately grapple with the broader legal and factual context in interpreting subsection 12(1) of FIPPA. The Commissioner failed to consider traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process.

The legal context included that FIPPA’s Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality. In the Court’s view, maintaining Cabinet secrecy “promotes candour, solidarity, and efficiency, all in aid of effective government.”.

Failing to consider this legal context led the Commissioner to (1) ascribe an overly narrow purpose to subsection 12(1); and (2) neglect important arguments made by Cabinet Office that informed the scope of the exemption. For example, the Commissioner did not engage with the Cabinet Office’s submission that 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.  The Commissioner found that the mandate letters were the “outcomes” or “topics” of deliberations that did not reveal “actual Cabinet deliberations at a specific Cabinet meeting.”

The Court acknowledged that the Commissioner did not restrict his interpretation of the deliberative process to a specific meeting, but he still failed to consider the mandate letters as part of a continuing deliberative process (as some decisions are made public and acted on, and some are not).

The factual context included the Premier’s role as head of cabinet, such that mandate letters were communications between the Premier and his Cabinet colleagues.

The dissent (per Côté J) agreed with the majority in the result but disagreed with the standard of review. In her view, the scope of cabinet confidence was an issue of central importance to the legal system, which should be reviewed for correctness. On that standard, the Commissioner incorrectly interpreted subsection 12(1).

If a reasonableness standard applied, the Commissioner’s decision was reasonable. Côté J emphasized that under a reasonableness review, “[r]eviewing judges are not to fashion their own yardstick and then use that yardstick to measure what the decision maker did.” The Commissioner was not required to address a concept adopted by the majority that was only expressed in scholarly authority, namely that “efficiency” is a tenet of Cabinet privilege.

A copy of the decision can be found here.