



COURT OF APPEAL FOR ONTARIO

CITATION:
    Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner),
    2022 ONCA 74

DATE: 20220126

DOCKET:
    C69150

Gillese,
    Lauwers and Sossin JJ.A.

BETWEEN

Attorney
    General for Ontario

Applicant
    (Appellant)

and

Information
    and Privacy Commissioner and Canadian Broadcasting Corporation

Respondents
    (Respondents)

Judie Im and Nadia Laeeque, for the appellant

Justin Safayeni and
    Spencer Bass, for the respondent Canadian Broadcasting Company

William S. Challis,
    for the respondent Information and Privacy Commissioner

Daniel Sheppard, for
    the interveners
Centre for Free Expression, Canadian
    Journalists for Free Expression, The Canadian Association of Journalists,
    Aboriginal Peoples Television Network, and News Media Canada

Heard: August 31, 2021 by video
    conference

On appeal from the
    order of the Divisional Court of Justices Swinton, Penny and Kristjanson, dated
    August 27, 2020, with reasons reported at 2020 ONSC 5085, affirming the
    decision of the Information and Privacy Commissioner, dated on July 15, 2019,
    with reasons reported at PA18-390.

Sossin J.A.:

A.

OVERVIEW

[1]

At issue in this appeal is whether the public is
    entitled to access the mandate letters provided to Cabinet ministers by the
    Premier of Ontario following the formation of the new government after the 2018
    provincial election.

[2]

A journalist with the CBC requested access to
    the 23 letters sent by the newly elected Premier, Doug Ford, to Ontarios
    Cabinet ministers who, together with him, comprise the Executive Committee,
    commonly known as the Cabinet.

[3]

Cabinet Office refused the CBCs request. The
    CBC appealed the refusal to the Information and Privacy Commissioner of Ontario
    (the IPC). Mediation did not resolve the issues and so the parties proceeded
    to the adjudication stage, where they engaged in a lengthy process of written
    submissions.

[4]

The Cabinet Office opposed disclosure of the letters
    on the basis of the Cabinet privilege exemption under s. 12(1) of the
Freedom of Information and Protection of
    Privacy Act
, R.S.O. 1990, c. F.31. By
Order PO3973; Cabinet Office (Re)
, [2019]
    O.I.P.C. No. 155, the Commissioner, Brian Beamish, ordered the letters to be
    disclosed to the requester, the CBC.

[5]

The Divisional Court dismissed the Attorney
    General for Ontarios application for judicial review of the IPC Order, who now
    appeals to this court.

[6]

Aside from the AG Ontario and CBC, this court
    heard submissions from the IPC on issues relating to the standard of review,
    the IPC process and the principles governing the interpretation of the Act. This
    court also heard submissions by a coalition of media and free-expression
    organizations as interveners. They appeared to help illustrate how the IPCs
    approach protects cabinet deliberations and upholds the public right of access.
    The interveners
Centre for Free Expression, Canadian
    Journalists for Free Expression, The Canadian Association of Journalists, and Aboriginal
    Peoples Television Network
presented submissions before the Divisional
    Court and were granted leave to intervene before this Court, with the addition
    of News Media Canada.

[7]

For the reasons that follow, I would dismiss the
    appeal.

(1)

The Legislation

[8]

Section 12(1) of the Act is particularly at
    issue in this appeal. It provides:

12(1) A head shall refuse to
    disclose a record where the disclosure would reveal the substance of
    deliberations of the Executive Council or its committees, including:

a.

an agenda, minute or other record of the
    deliberations or decisions of the Executive Council or its committees;

b.

a record containing policy options or
    recommendations submitted, or prepared for submission, to the Executive Council
    or its committees;

c.

a record that does not contain policy options or
    recommendations referred to in clause (b) and that does contain background
    explanations or analyses of problems submitted, or prepared for submission, to
    the Executive Council or its committees for their consideration in making
    decisions, before those decisions are made and implemented;

d.

a record used for or reflecting consultation
    among ministers of the Crown on matters relating to the making of government
    decisions or the formulation of government policy;

e.

a record prepared to brief a minister of the
    Crown in relation to matters that are before or are proposed to be brought
    before the Executive Council or its committees, or are the subject of
    consultations among ministers relating to government decisions or the formulation
    of government policy; and

f.

draft legislation or regulations.

(2)

The Procedural History

[9]

Cabinet Office provided the IPC with a copy of
    the Cabinet agenda that indicated the Letters were distributed on July 11,
    2018.

[10]

In detailed reasons, the IPC determined that the
    Letters did not fall within the exclusion set out in s. 12(1) of the Act. With respect
    to the content of the Letters, the IPC found:

[79] The mandate letters are directives from
    the Premier to each of his ministers. They contain general statements about the
    governments overall priorities and provide guidance to each minister as to each
    ministrys priorities and his or her own role.

[11]

The IPC stated that the opening words of s.
    12(1) required Cabinet Office to provide sufficient evidence to establish a
    link between Cabinet deliberations and the content of the mandate letters,
    which are the records in issue. That is, if a record does not appear in the
    list from sub-paras. (a) to (f), s. 12(1) applies only if the record permits
    accurate inferences regarding actual Cabinet deliberations. It is not enough
    that the documents reveal the outcome of those deliberations; they must reveal its
    substance.

[12]

The IPC found no evidence that the records were
    tabled at a Cabinet meeting or that their contents were the subject of Cabinet
    deliberations. Even the agenda provided by the Cabinet Office did not indicate
    that the Letters were tabled for discussion. The Letters did not assess the
    reasons for or against a particular course of action, nor did they outline the
    views, opinions, thoughts, or ideas of cabinet members. Consequently, the
    Cabinet Office failed to show that the Letters would reveal the substance of
    any Cabinet deliberations.

[13]

The Divisional Court found the IPCs decision to
    be reasonable. It characterized the case as an application of well-settled
    principles to particular facts. In the courts view, the IPC used the absence
    of deliberation about the letters as evidence that s. 12(1) did not apply, not
    as a means to narrow the scope of the exclusion. Since the Letters did not
    disclose or invite any deliberation from Cabinet, the IPCs conclusion that
    they did not meet the exception in the opening words of s. 12(1) was
    reasonable. Further, the Divisional Court found that the IPC did not apply an
    unreasonably stringent test by requiring Cabinet Office to show that the Letters
    would be placed before specific Cabinet meetings in the future. The IPC simply
    found that the Cabinet Office had not discharged its burden to prove a link
    between the Letters and the substance of future Cabinet deliberations.

B.

Detailed BACKGROUND

(1)

The Media Request

[14]

The CBC made an access request to Cabinet Office
    under the Act for a copy of each of the Letters sent by the premier to Cabinet
    Ministers for all of Ontarios 22 ministries, and two non-portfolio
    responsibilities.

(2)

The Cabinet Office Response

[15]

Cabinet Office denied the CBC access in full to
    the Letters, claiming the application of the mandatory exemption in s. 12(1) of
    the Act (Cabinet records).

[16]

Cabinet Office described the Letters in the
    following terms:

Mandate letters are customarily the first
    communication to ministers through which the Premier translates party values
    and policy priorities into a plan of action for the government. For this
    reason, mandate letters outline the key policy priorities of the Premier that
    each minister is responsible for leading. Policy priorities are assigned to
    each minister based on the operational and/or statutory mandate of their
    ministry.

In addition, mandate letters can include
    advice, instructions and guidance to each minister in carrying out his or her
    ministerial duties and responsibilities. This guidance is often placed in the
    context of the values that are important to the Premier and party.

Each member of the Executive Council who
    receives a mandate letter is accountable to the Premier and his or her Cabinet
    colleagues for assisting the government to achieve the priorities and
    objectives described in that letter.

[17]

Cabinet Office asserted that s. 12(1) applies where
    records reflect the policy-making and priority setting functions of the
    Premier.

[18]

Cabinet Office submitted that the Letters were
    distributed to the Ministers at a July 11, 2018, meeting and took the position
    that disclosure of the Letters would reveal deliberations that took place in
    relation to the Letters at that Cabinet meeting.

[19]

Cabinet Office also submitted that the Letters included
    the substance of deliberations of Cabinet because the deliberations of the
    Premier, when setting policy priorities for Cabinet, are inherently part of Cabinets
    deliberative process. Cabinet Office further submitted that the Letters are
    exempt from disclosure because they would reveal the substance of future
    deliberations of Cabinet.

(3)

The IPC Decision

[20]

The IPC rejected Cabinet Offices argument that
    the Letters were exempt because they reflected the Premiers policymaking and
    priority setting functions.

[21]

The IPC reviewed evidence regarding the
    preparation of previous mandate letters made publicly available in Ontario and
    elsewhere in Canada, and concluded, [t]his evidence contradicts the view that
    disclosure of letters of this nature would impinge on Cabinet deliberations;
    and I find no material difference in the nature of letters in issue before me
    to suggest a different result in this case.

[22]

The IPC found no evidence to support Cabinet
    Offices position that the Letters would reveal prior deliberations by the
    Premier or Cabinet Ministers, that they were discussed at a meeting of Cabinet,
    or that the Letters would be the basis of discussion at future Cabinet
    meetings.

[23]

After reviewing the submissions by the parties
    in detail, the IPC made the following findings of fact:

a.

There is nothing on the face of the Letters or
    in the representations of Cabinet Office to indicate that the Letters
    themselves were intended to serve, or did serve, as Cabinet submissions or as
    the basis for discussions by Cabinet as a whole: at para. 113.

b.

Cabinet Office provided no evidence that the Letters
    were themselves, in fact, discussed at the Cabinet meeting when they were
    provided to each minister or that they were tabled or made generally available
    for discussion: at para. 114.

c.

There is no evidence that the Letters were
    distributed to Cabinet as a whole at that time or that any specific contents of
    the Letters were actually the subject of the deliberations of Cabinet: at para.
    114.

d.

The Letters do not reveal any discussions
    weighing or examining the reasons for or against a course of action with a view
    to making a decision: at para. 115.

e.

The Letters do not reveal any views, opinions,
    thoughts, ideas and concerns expressed by Cabinet members in the course of the
    deliberative process: at para. 115.

f.

The Letters do not provide insight into the
    substance of any specific deliberations that may have occurred among Cabinet
    ministers: at para. 115.

g.

There is no evidence that the Letters themselves
    would be placed before Cabinet in future meetings: at para. 116.

h.

The Letters do not reveal the substance of any material upon which
    Cabinet members will actually deliberate in the future and do not reveal the
    substance of any such future deliberations: at para. 119.

i.

There is no persuasive evidence that disclosure would give rise to a
    chilling effect on Cabinet deliberations: at para. 123.

j.

The Letters do not reveal the substance of the Premiers
    deliberations but, rather, the product of his deliberations: at para. 134.

[24]

Based on these findings of fact, the IPC held
    that s. 12(1) did not apply to the records at issue, and ordered Cabinet Office
    to disclose the letters to the appellant.

(4)

The Divisional Court Decision

[25]

Assessing the IPC decision on a reasonableness
    standard, the Divisional Court dismissed the application for judicial review
    brought by the AG Ontario.

[26]

Writing for the Divisional Court, Penny J.
    explained that the Decision was largely fact-based, and resulted from the
    absence of evidence led by the AG Ontario that the Letters fell within the
    terms of s. 12(1) of the Act:

[24] I cannot agree with the Attorney General
    that there is any fundamental error in the interpretation of the Act. In my
    view this is entirely a case of the application of well-settled principles to
    the particular facts. The burden of proof was undeniably on the government to
    demonstrate that the Letters fell within the s. 12(1) exemption. The government
    chose to enter as evidence only the Letters themselves and a heavily redacted
    copy of the agenda for the meeting at which the Letters were, apparently,
    delivered. The IPC simply held that, on this record, the government had failed
    to satisfy its evidentiary burden. This is a sufficiency of evidence case,
    nothing more.

[27]

Throughout its decision, the Divisional Court
    relied on the IPCs findings on the record to determine that the IPC Decision
    was reasonable. For example, with respect to whether the Letters were discussed
    at a Cabinet meeting, the Divisional Court held:

[37] As is often said, inferences must be
    grounded in evidence from which the suggested inference may reasonably be
    drawn. Inferences unsupported by evidence, or which do not reasonably follow
    from the established facts, are mere speculation.

[38] Regarding the meeting agenda itself, the
    subject of the Letters does not appear in the numbered list of agenda items
    (there are seven, all completely redacted). Rather, reference to the Letters appears
    at the end of the agenda under a heading Chair Notes: Mandate Letters.

[39] Nothing about the content of this Note
    supports an inference that the mandate Letters were discussed at the Cabinet
    meeting. Rather, if anything, the content of the Note suggests the opposite.

[40] As noted earlier, the Letters themselves
    do not suggest they are drafts subject to negotiation or in any way invite
    dialogue about their content. While it may be true that some of the mandates identified
    would likely require a return to Cabinet at some future time, this is nowhere
    specified or contemplated.

[41] In these circumstances, there was a clear
    evidentiary basis to reject the Attorney Generals argument that it was
    reasonable to expect certain unspecified aspects of the Letters would have
    been discussed at the initial Cabinet meeting. The IPCs decision to do so was
    not unreasonable.

[28]

With respect to whether the Letters would reveal
    deliberations of future Cabinet meetings, the Divisional Court held:

[49] Again, the IPC
    based this conclusion on an assessment of the evidence. The IPC simply found
    that the Cabinet Office had not discharged its burden to prove a link between
    the Letters and the substance of future Cabinet decisions. Given the paucity of
    evidence provided by the Cabinet office, this was not an unreasonable
    conclusion.

[29]

Finally, the Divisional Court rejected the AG
    Ontario submission that it was unreasonable for the IPC to require stringent
    evidence from Cabinet Office to support the argument that the Letters fell
    within the scope of s. 12(1) of the Act. On this point, writing for the court, Penny
    J. stated:

[55] There is no merit to the Attorney
    Generals argument on this issue. The IPC clearly recognized, and applied, the
    correct standard of proof  it was the governments onus to demonstrate that it
    met the requirements to come within the s. 12(1) exemption on a balance of
    probabilities. The Attorney Generals submission amounts to no more than an
    invitation for this Court to re-weigh the evidence and overturn the findings of
    the IPC with which the Cabinet Office disagrees. The IPC identified the correct
    legal principles, applied them to the interpretation of the opening words of s.
    12(1), reviewed the record and the submissions before him in light of that
    legal test and explained the basis for his decision in thorough and cogent
    reasons. There was nothing unreasonable about the IPCs approach to or
    conclusions on the standard of proof.

C.

ISSUES ON APPEAL

[30]

The AG Ontario raises
    the following three issues in this appeal:

a.

The IPC erred in exercising the statutory authority to grant a right
    of access that is inconsistent with the purposes of the Act and the Cabinet
    records exemption;

b.

The IPC erred in exercising the statutory authority to grant a right
    of access based on an erroneous interpretation of s. 12(1) of the Act; and

c.

The IPC erred in exercising the statutory authority to grant a right
    of access based on an erroneous injection of a balancing test into s. 12(1) of
    the Act.

[31]

Each issue is addressed below.

D.

Analysis

(1)

The Standard of Review

[32]

On an appeal from an order of the Divisional
    Court concerning an application for judicial review of an administrative
    decision, this court must determine whether the Divisional Court identified the
    appropriate standard of review and applied it properly. In order to make this
    determination, the court steps into the shoes of the Divisional Court: see
    e.g.,
Canadian Federation of
    Students v. Ontario (Colleges and Universities)
,

2021 ONCA 553, at para. 20;

Longueépée
    v. University of Waterloo
, 2020 ONCA 830, 153 O.R.
    (3d) 641, at paras. 47-48, applying
Agraira
    v. Canada (Minister of Public Safety and Emergency Preparedness)
, 2013
    SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46.

[33]

The AG Ontario submits that, in upholding the
    IPCs interpretation of s.12(1) of the Act, the Divisional Court failed to
    conduct a sufficiently robust reasonableness review as required by the
    Supreme Court in
Canada (Minister
    of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R.
    (4th) 1.

[34]

I do not accept this submission.

[35]

The Divisional Court acknowledged
Vavilov
as its point of
    departure for reviewing the reasonableness of the IPC decision. In identifying
    reasonableness as the standard of review, the Divisional Court stated, at para.
    17:

Reasonableness is the appropriate standard of
    review in this case. The reasonableness review finds its starting point in
    judicial restraint and respects the distinct role of administrative
    decision-makers.

[36]

I see no error in the Divisional Courts
    approach to the standard of review.

(2)

The IPCs exercise of statutory authority to
    grant a right of access was consistent with the purposes of the Act and the
    Cabinet records exemption

[37]

The IPC described his approach to the interpretation of s. 12(1) as
    protective of
communications within Cabinets deliberative process that
    would reveal the substance of its formulation of government policies.

[38]

The
    IPC emphasized, however, that without additional evidence or context showing
    how the Letters would reveal the substance of deliberations, the introductory
    words of s. 12(1) did not shield the policy choices themselves.

[39]

The Divisional Court approached the issue as to
    the proper interpretation of s. 12(1) as one on which the parties agreed:

[19] It is also accepted by the parties and
    the IPC that in order for the exemption under s. 12(1) to apply, disclosure of
    the record must reveal the substance of deliberations of Cabinet or permit the
    drawing of accurate inferences about past or future Cabinet deliberations. It
    is also accepted that the use of the term including in the introductory words
    of s. 12(1) means that any record which would reveal the substance of
    deliberations or permit the drawing of accurate inferences qualifies for the
    exemption; the specifically enumerated categories of record in subparagraphs
    (a) to (f) must be interpreted as providing an expanded definition of, or at
    the very least the removal of any ambiguity about, the types of records that
    are exempt from disclosure.

[40]

The AG Ontario takes issue with this
    characterization. It argues that the IPC erred by taking a narrow and
    restrictive view of the opening words of s. 12(1) inconsistent with the
    purposes of the Act and of the Cabinet records exemption.

[41]

The AG Ontario argues that s. 12(1) should be
    read in concert with the specific examples of exclusions set out in the
    subparagraphs (a) through (f), and in particular (a)
an
    agenda, minute or other record of the deliberations or decisions of the

Executive Council or its committees
.

[42]

The AG Ontario submits that the use of the term
    including in the introductory portion of s. 12 makes clear that the records
    set out in the subparagraphs constitute records whose 
disclosure
    would reveal the

substance of
    deliberations of the Executive Council or its committees
. It characterizes this interpretive approach as the illustrative
    approach. Therefore, s. 12(1) exempts the Letters from disclosure by analogy
    to the records described in subparagraphs (a) to (f).

[43]

In contrast, the CBC, in supporting the approach
    taken by the IPC as reasonable, characterized the proper approach to the
    interpretation of s. 12(1) as the expansive approach. Under the expansive
    approach, the use of the term including in s. 12(1) indicates that the
    records specified in the following subparagraphs expand on the general language
    in the introductory portion of s. 12(1) by setting out records which,
    while not necessarily revelatory of the deliberations of Cabinet or its
    committees, may be so in certain circumstances and are, therefore, exempt from
    disclosure. Consequently, CBC argued that the letters fall outside of s.
    12(1)s scope because they do not reveal the substance of Cabinet deliberations
    or meet any of the expanded categories set out in subparagraphs (a) to (f).

[44]

As both the CBC and IPC note in their
    submissions, the expansive approach is in keeping with a long line of decisions
    by the IPC dealing with exemptions under s. 12(1). For example, in
Order P-266
, [1991] O.I.P.C.
    No. 10, at p. 7, the IPC explicitly stated that the use of the word
    including in subsection 12(1) of the
Act

[
sic
] should be interpreted
    as providing an
expanded
definition of the types
    of records which are deemed to qualify as subject of the Cabinet records
    exemption, regardless of whether they meet the definition found in the
    introductory wording of subsection 12(1): citing
Order 22
, [1988] O.I.P.C. No. 22 (emphasis
    added).

[45]

Indeed, the IPC has used the same words to
    describe s.12(1) since
Order P-901
,
    [1995] O.I.P.C. No. 148. In that decision, at p. 4, the IPC stated:

[T]he use of the term "including" in
    the introductory wording of section 12(1) means that the disclosure of any
    record which would reveal the substance of deliberations of the Executive
    Council or its committees (not just the types of records listed in the various
    parts of section 12(1)), qualifies for exemption under section 12(1).

[46]

Other orders have held that a record which has
    never been placed before an Executive Council or its committees may nonetheless
    qualify for exemption under the introductory wording of s. 12(1): see e.g.
Interim Order PO-1742-I
, [2000]
    O.I.P.C., at para. 36;
Order
    PO-2707; Ministry of Education
, [2008] O.I.P.C. No. 166, at para.
    26. This result will occur where a government organization establishes that the
    disclosure of the record would reveal the substance of deliberations of an
    Executive Council or its committees, or that its release would permit the
    drawing of accurate inferences with respect to the substance of deliberations
    of an Executive Council or its committees.

[47]

As the Divisional Court highlighted, the
    subparagraphs of s. 12(1) clarify that the exemption applies to specific types
    of records that might otherwise be thought to fall outside the opening words:
    at para. 27.

[48]

The IPCs
Order
    P-901
further stands for the proposition that s. 12(1) is not
    limited to its subparagraphs. Any record can fall under the Cabinet records
    exemption so long as it would reveal the substance of deliberation of an
    Executive Council or its committees, or permit the drawing of accurate
    inferences.

[49]

While previous IPC decisions do not bind the IPC
    in relation to future interpretations of s.12(1), the IPCs consistency in its
    approach to its governing statute may be taken as an indicator of the
    reasonableness of this decision. As the Supreme Court stated in
Vavilov
:

[
129
] Administrative
    decision makers are not bound by their previous decisions in the same sense
    that courts are bound by
stare
    decisis
. As this Court noted in
Domtar
,
    a lack of unanimity is the price to pay for the decision‑making freedom
    and independence given to administrative decision makers, and the mere fact
    that some conflict exists among an administrative bodys decisions does not
    threaten the rule of law: p. 800. Nevertheless, administrative decision makers
    and reviewing courts alike must be concerned with the general consistency of
    administrative decisions. Those affected by administrative decisions are
    entitled to expect that like cases will generally be treated alike and that
    outcomes will not depend merely on the identity of the individual decision
    maker  expectations that do not evaporate simply because the parties are not
    before a judge. [Citations omitted.]

[50]

Even if this interpretation of s.12(1) were not
    long-standing, in my view, the IPC would be acting reasonably in adopting it.
    The use of the term including prior to setting out the ss. 12(1)(a) to (f) is
    ambiguous.

[51]

In the face of ambiguous wording, the obligation
    on an administrative decision-maker is to provide a reasoned explanation for
    the interpretation adopted that is alive to the text, context and purpose of
    the provision;
Vavilov
,
    at para. 120. The IPC has done this.

[52]

The IPCs approach to s. 12(1) is also
    consistent with the general purpose of the Act, which is to provide a right of
    access to information under the control of institutions in accordance with the
    principles thatnecessary exemptions from the right of access should be limited
    and specific. This is a point underscored by the interveners, who argue that
    provisions of the Act which exempt access should generally be interpreted
    narrowly.

[53]

Before moving to the IPCs exercise of statutory
    authority, I will briefly address two of the AG Ontarios arguments which were
    not put before the IPC.

[54]

First, the AG Ontario points to the French
    translation of the term including in the Act, which is notamment, as
    opposed to en outre. The AG Ontario argues that, in other statutory settings,
    en outre is used to indicate an expansive rather than inclusive set of
    specified subsections.

[55]

As the AG Ontario could have, but did not make
    this argument before the IPC, it should not be determinative of a finding that
    the IPC acted unreasonably in its interpretation: see
Alberta (Information and Privacy Commissioner)
    v. Alberta Teachers' Association
, 2011 SCC 61, [2011] 3 S.C.R. 654,
    at paras. 22-26.

[56]

However, even if it had been argued earlier, the
    French version of the provision is not conclusive of a particular, proper
    interpretation of s. 12(1) of the Act. The French dictionary definitions of
    notamment and en outre both refer to including. Thus, neither rule in nor
    rule out either interpretive approach.

[57]

Second, the AG Ontario raised the legislative
    history of s. 12(1), and the fact that, in the debates surrounding draft
    legislation preceding the Act, the legislature rejected a proposal to use the
    term solely rather than including to limit the exemption to specific
    records. The AG Ontario argues that this aspect of the legislative history
    provides further support for the illustrative approach.

[58]

Again, this legislative history argument was not
    before the IPC. In any event, this argument also fails to establish that the
    IPCs adoption of the expansive approach was unreasonable. While the
    legislative history establishes that the term solely was not adopted, it does
    not lead to the conclusion that the term including is capable of only one
    reasonable interpretation.

[59]

In my view, the AG Ontario has failed to
    establish that the IPCs interpretation of s. 12(1) was unreasonable, and that
    the Divisional Court erred in finding the IPCs interpretation reasonable.

(3)

The IPCs exercise of its statutory authority
    under s. 12(1) of the Act was reasonable

[60]

The AG Ontario argues that the IPCs decision to
    order disclosure of the Letters was unreasonable as the letters represented
    decisions of the Premier which
would reveal the

substance of
the
deliberations
leading up to these decisions.
    In its factum, the AG Ontario describes the Letters in the following terms:

[23] The Letters are a way by which this
    Premier has chosen to discharge his constitutional duties as first minister to
    develop and prioritize the policies and operational agenda of the new government.
    The Letters represent the first communication to the ministers from the Premier
    to establish policy priorities and a plan of action for their development and
    implementation over the term of the current government.



[25] In addition to setting out the policy
    priorities of the new government, the Letters also include opinion, advice,
    instructions and guidance from the Premier to the newly appointed ministers as
    to how to carry out their new ministerial duties and responsibilities. Each
    member of the Executive Council who received a Letter is accountable to the
    Premier and their other Cabinet colleagues for assisting the government in
    achieving the policy objectives described in the Letters.

[61]

The CBC takes the position that the AG Ontario
    has failed to lead any evidence that the disclosure of the Letters would reveal
    the substance of deliberations, either the Premiers or Cabinets.

[62]

Beside the Letters themselves, the AG Ontario
    relies on the agenda for the July 11, 2018 Cabinet meeting, which refers to the
    distribution of the mandate letters as a Chair note.

[63]

As noted above, the AG Ontario argued before the
    IPC that the Letters meet the threshold for excluded records under s. 12(1) of
    the Act on three grounds:

a.

the Letters disclosed the deliberations of the
    Premier in setting Cabinets policy priorities which are inherently part of the
    deliberative process of Cabinet;

b.

the Letters were the subject of deliberations at
    the meeting of Cabinet where the letters were placed on the agenda; and

c.

the deliberations at future Cabinet meetings
    where the policy priorities set out in the letters would be further discussed.

[64]

With respect to AG Ontarios second argument and
    the reference to Letters in a Cabinet agenda, the IPCs interpretation of s. 12(1)
    precluded the argument that
all
matters on a
    Cabinet agenda were presumptively excluded. Such a finding might flow from the
    illustrative approach to the subsection s. 12(1)(a) to (f), and the reference
    specifically in s. 12(1)(a) to
an
agenda
, minute,

or other record of the deliberations or
    decisions of the Executive Council or committees
(emphasis
    added). However, the IPC rejected this approach.

[65]

Similarly, the IPC found no evidence to support AG
    Ontarios first and third arguments. The IPC reiterated that the mere stating
    of a policy priority does not reveal the deliberations leading to that outcome.

[66]

The IPC found that the AG Ontario provided no
    evidence that the Letters were actually discussed at the Cabinet meeting where
    their distribution was referenced in the agenda. Further, the IPC found that
    there was no evidence offered for the assertion that the Letters were tabled for
    future discussion by Cabinet.

[67]

The IPC also found no basis for the argument
    that the Letters themselves revealed the deliberations of the Premier.

[68]

The AG Ontario argued before the IPC that the Premiers
    articulation of policy priorities represented a step in Cabinets deliberative continuum
    and should not be seen as the culmination of the governments policy
    decision-making. According to the AG Ontario, the deliberative process of the
    Executive Council continues once the Premier establishes and communicates his
    policy priorities to ministers through the Letters. The policy priorities will
    involve further deliberation and decision-making by Cabinet in future.

[69]

The IPC accepted that, where a record discloses
    deliberations by the Premier, this record may be exempted under s. 12(1). In
    other words, IPC recognized the distinct role of the Premier in relation to
    Cabinet. But the IPC rejected the AG Ontarios view of the deliberative process
    as unduly broad. In its decision, the IPC stated:

[121] The submission advanced by Cabinet
    Office that the mandate letters open the dialogue and initiate a continuum of
    the deliberative process as a blueprint for future Cabinet discussions
    suffers from the same deficiency. I am asked to accept that deliberations on
    nearly all of the policy initiatives would take place at some point in future
    Cabinet meetings. I am also asked to find that section 12(1) applies to policy
    initiatives that may never return to Cabinet at all or that may be altered or
    amended in significant and unspecified ways. With respect, Cabinet Office has
    it backwards. I must be satisfied on the evidence of the likelihood that that
    disclosure of the letters would reveal or, at a minimum, permit accurate
    inferences to be drawn concerning the substance of future Cabinet
    deliberations.

[122] That is not to say that deliberations
    will not ensue a later date in relation to the subject matter of certain
    priorities. However, any such deliberations would be in relation to proposals
    or other materials yet to be developed by individual ministers and later
    brought before Cabinet. Such materials, when developed, may well reveal the
    substance of future Cabinet deliberations if and when they occur. However, the
    evidence before me does not establish that disclosure of the mandate letters
    themselves will permit accurate inferences to be drawn in that respect. At
    most, Cabinet Offices submissions indicates that the subject matter of future
    deliberations may be revealed by disclosure.

[70]

On the question of the continuum approach to
    disclosure of deliberations, Penny J. stated:

[29] As to the Attorney Generals continuum
    argument, the introductory words of s. 12(1) do not protect all records leading
    up to any particular government decision; they protect the substance of
    deliberations of Cabinet (which includes, as found previously by the IPC, the Premiers
    deliberations in setting Cabinets priorities). The Letters, on their face
    however, do not disclose or invite any deliberative process. The Cabinet
    Offices own submissions describe the Letters as the
culmination
of an extensive
    deliberative process by the Premier [that] reflect his/her
determination
, as first
    minister, of the priorities of the new government. In the absence of any other
    evidence, the IPCs conclusion that the Letters do not disclose deliberative
    processes was a reasonable
one. [Emphasis in
    original.]

[71]

The IPC also considered its own previous
    decisions with respect to the role of the Premiers Office. In Order PO-1725,
    [1999] O.I.P.C. No. 153, the IPC considered a request for a scheduling book
    prepared by a Premier Office senior staff member. After a lengthy review of the
    Premiers role and the importance of his or her staff, the IPC concluded that
    the records fell under s. 12(1).

[72]

In this case, the issue for the IPC was not
    whether records which disclose the deliberations of the Premier are caught by
    the exclusion under s. 12(1), but rather whether the Letters and the agenda
    constitute sufficient evidence that the deliberations of the Premier would be
    revealed by disclosure of the Letters.

[73]

On this point, at para. 132, the IPC found on
    the record before him that the disclosure of the policy initiatives in the mandate
    letters would not provide any insight into the deliberative considerations or
    consultative process by which the Premier arrived at them.

[74]

For the Divisional Court, Penny J. distinguished
    the IPC Order PO-1725 as well, stating, at para. 31:

The decision of the IPC in Order PO  1725
    does not support the Attorney Generals argument. Again, this is on essentially
    factual and evidentiary grounds. In Order PO  1725, the IPC found that the
    Premiers consultations with a view to establishing Cabinet priorities are an
    integral part of Cabinets substantive deliberative process and that the
    records reflecting those consultations constitute the substance of
    deliberations. It was this deliberative or consultative aspect of the
    Premiers priority-setting process which lay at the heart of the IPCs decision
    in that case. There is no evidence of any such consultative or deliberative
    process in establishing the Premiers priorities here. In fact, in Order PO 
    1725, the IPC specifically found that (apart from the formal agenda document
    itself) the subject matter of items considered or to be considered by Cabinet
    will not normally be found to reveal the substance of Cabinet deliberations,
    unless either the context or other additional information would permit the
    reader to draw accurate inferences as to actual deliberations which took place
    at a particular Cabinet meeting. [Emphasis added.]

[75]

I agree with the IPC and the Divisional Court.
    The scheduling book at issue in Order PO-1725 was far closer to the Premiers
    deliberative process than the Letters at issue here. The scheduling book
    contained references to particular Bills or pending legislation, [and] more
    generalized references to possible programs and initiatives: at p. 15. Therefore,
    it is apparent that the IPC applied s. 12(1) in Order PO-1725 because the
    scheduling book revealed the thoughts and opinion of the Premier and, consequently,
    Cabinet.

[76]

Conversely, the Letters are the culmination of
    that deliberative process. While they highlight the decisions the Premier
    ultimately made, they do not shed light on the process used to make those
    decisions, or the alternatives rejected along the way. Accordingly, the Letters
    do not threaten to divulge Cabinets deliberative process or its formulation of
    policies.

[77]

In my view, this application of s. 12(1) by the
    IPC to the Letters was reasonable, and the Divisional Court committed no error
    in so finding.

(4)

The IPC did not introduce a new balancing test
    into the exercise of its statutory authority under s. 12(1) of the Act

[78]

The AG Ontario argued that the IPC injected a
    balancing test into s. 12(1) despite its exclusion from the public interest
    override.

[79]

The AG Ontario refers to s. 23 of the Act which
    permits disclosure of exempt records if there is a compelling public interest
    in disclosure that clearly outweighs the purpose of the exemption. Section 23,
    however, expressly does not apply to Cabinet records that are otherwise caught
    by s. 12.

[80]

The AG Ontario argues that the IPCs reference
    to the public interest as a balancing factor, relying in part on the Nova
    Scotia Court of Appeal in
OConnor
    v. Nova Scotia
, 2001 NSCA 132, 197 N.S.R. (2d) 154, thus
    constitutes a reversible error.

[81]

I disagree.

[82]

In my view, the IPC did not inject a new
    balancing test into the analysis of s. 12(1). Rather, the IPC, relying on
OConnor
, recognized that s.
    12(1) itself strikes a balance between a citizens right to know what
    government
is doing
and a governments right to
    consider what
it might do
behind closed doors: Order
    PO-3973, at para. 97. The Court, at para. 1 in
OConnor
, stated that this context calls for an
    interpretation of the Act that attempts to balance these two public rights.

[83]

While the Divisional Court highlighted the
    factual distinctions between this case and
OConnor
,
    where there was substantial evidence that the records at issue would reveal
    Cabinet deliberations, the reference to the balance reflected in the Act is
    appropriate in the context of this case as well.

[84]

I see no error in the IPCs reference to these
    general observations by the Nova Scotia Court of Appeal in
OConnor
as part of its
    analysis. His reference focuses on the Court of Appeals analysis linking the records
    at issue with the substance of deliberation. That is exactly the thrust of the
    opening words exception in s. 12(1).

[85]

Generally, the AG Ontario submits that the
    Divisional Court erred in failing to conduct a proper
Vavilov
review of the IPCs
    statutory analysis.

[86]

I would not accept this submission.

[87]

The Divisional Court committed no error arising
    from
Vavilov
in
    its finding that the Decision was reasonable.

DISPOSITION

[88]

For the reasons set out above, I would dismiss
    the appeal.

[89]

If the AG Ontario and CBC cannot agree on costs,
    brief written submissions may be provided to the court (not to exceed three
    pages double-spaced) within 15 days of the release date of these reasons.

[90]

Neither the interveners nor the IPC sought costs
    and I would order none.

L.
    Sossin J.A.

I
    agree.
E.E. Gillese J.A.


Lauwers J.A. (dissenting):

A.

Overview

[91]

The Information and Privacy Commissioner ordered
    Cabinet Office to disclose to the CBC the mandate letters Premier Ford gave to
    Cabinet ministers at a Cabinet meeting. The distribution of the letters was on
    the meetings agenda. The Commissioner determined that the exemption from
    disclosure for Cabinet records set out in the
Freedom of Information and Protection of Privacy Act
[1]
did not apply to the mandate
    letters. The issue is whether the Commissioners interpretation of the exemption
    was reasonable.

[92]

Section 12(1) of the Act sets out the relevant
    exemption from public disclosure for Cabinet records: A head shall refuse to
    disclose a record where the disclosure would reveal the substance of
    deliberations of the Executive Council or its committees, including. These opening
    words are followed by subparagraphs (a) to (f), which list specific kinds of
    records that are exempted, such as agendas or minutes of Cabinet deliberations.

[93]

The purpose of the exemption is to establish a
    robust and well-protected sphere of confidentiality within which Cabinet can
    function effectively, one that is consistent with the established conventions
    and traditions of Cabinet government. I conclude that the Commissioners
    interpretation was unreasonable because the effect of his order, contrary to
    the legislatures intention, was to breach, erode, or undermine those
    traditions. I therefore dissent.

[94]

Because the mandate letters are part of the
    Premiers deliberative process, in his role as head of Cabinet, and initiate
    Cabinets mandate going forward, they are, perforce, part of Cabinets
    deliberative process. They are records that would reveal the nature of Cabinet
    deliberations  understood as including the topics, subject matters, things, or
    body of information Cabinet would be discussing, as well as the deliberations
    themselves  within the meaning of the substance of deliberations in the
    opening words of s. 12(1). This is dispositive of the appeal, which I would
    allow on this basis alone.

[95]

I would also allow the appeal on the grounds
    that the Commissioner prescribes a new test that a record must meet to qualify
    for exemption from disclosure under the opening words of s. 12(1): I
f a record does not appear at paragraphs
    (a) to (f), it will
only

qualify for the
    exemption if the context or other information would permit accurate inferences
    to be drawn as to
actual
Cabinet
deliberations
at a
specific
Cabinet meeting.
[2]
This
    new test is fundamentally incompatible with the text, context, and purpose of
    s. 12(1) of the Act.

[96]

Turning to my colleagues reasons, he states
    that [t]he use of the term including prior to setting out the ss. 12(1)(a)
    to (f) is ambiguous.
[3]
He takes the position that this ambiguity opens up a policy choice that the
    Commissioner is entitled to make under the Act between two competing
    approaches, one broad and one narrow, and the Commissioner did not err in
    preferring the narrow approach to limit the exemption.

[97]

I disagree. The ostensible presence of an
    ambiguity in s. 12(1) of the Act does not open up a policy choice for the
    Commissioner to make. The legislature made the policy choice as to the reach of
    the protected sphere of Cabinet confidentiality in enacting s. 12(1). The
    Commissioners task was to identify and apply that legislative choice. This he
    failed to do, as did the Divisional Court.

B.

The Issues

[98]

I frame my analysis around this sequence of
    questions:

1)

What are the relevant principles of statutory interpretation and
    what is the applicable standard of review?

2)

What is the pertinent context within which s.
    12(1) of the Act is to be interpreted
?

3)

What is the purpose of s. 12(1)?

4)

In light of that context and that purpose, what
    interpretation of the text of s. 12(1) should the Commissioner have adopted?

5)

Is the Commissioners new test compatible with s. 12(1)?

6)

Should the disclosure of the mandate letters be remitted to the
    Commissioner for disposition in accordance with these reasons?

C.

The Analysis

[99]

I begin with two observations. First, Cabinet
    mandate letters are a relatively recent form of political document issued by
    prime ministers and premiers. They have been used as a form of public letter to
    frame an area of public policy and often reiterate campaign promises. Of
    course, prime ministers and premiers are free to craft and issue such letters
    for public consumption. But the issue in this case is different. Can the
    Commissioner compel the disclosure of mandate letters, in the face of the exemption
    from disclosure for Cabinet records in s. 12(1) of the Act, when the Premier
    chooses to keep them private? This issue engages constitutional conventions and
    traditions surrounding the Premiers role in matters pertaining to Cabinet
    deliberations, and it has broader implications.

[100]

My second observation is that an ultimate decision forcing
    disclosure of the mandate letters in this case is likely to be a one-off. Why
    do I say that? Because the Premiers response in the future will predictably
    take one of three forms: to draft mandate letters for purely public consumption
    as others have done; to tie mandate letters even more closely to the Cabinet
    decision-making process in order to better substantiate the claim to an
    exemption from public disclosure under s. 12(1) of the Act; or to give up
    drafting mandate letters altogether.

[101]

That said, the Commissioners incursion into the ordinary operations
    of Cabinet is not benign or unimportant, and it should not be trivialized. The
    Commissioner overstepped and the Divisional Court was wrong to uphold his
    decision. It was neither the legislatures intention nor the purpose of s.
    12(1) of the Act to force Cabinet to change its customary way of operating. The
    basis on which the Commissioner overstepped could give rise to future problems
    of a markedly more serious nature than the disclosure of mandate letters might
    suggest.

[102]

I now turn to the questions that frame my analysis.

(1)

What are the relevant principles of statutory
    interpretation and what is the applicable standard of review?

[103]

The interpreters task in statutory interpretation is to discern the
    legislatures intention in order to give effect to it.
[4]
The interpreter must attend to
    text, context, and purpose.
[5]

[104]

Section 1 of the Act stipulates two purposes. The first purpose is:
    (a) to provide a right of access to information under the control of
    institutions in accordance with the principles that, (i) information should be
    available to the public, [and] (ii) necessary exemptions from the right of
    access should be limited and specific. The second purpose  to protect the
    privacy of individuals  is not engaged in this appeal.

[105]

Section 12(1) of the Act sets out the relevant
    exemption from public disclosure
for Cabinet
    records. The interpreter must reconcile the public access to information purpose
    of the Act set out in s. 1(a) with the purpose for the exemption from
    disclosure for Cabinet records set out in s. 12(1).

[106]

The standard of review to be applied to a specialized tribunals
    statutory interpretation is ordinarily reasonableness.
[6]
However, because questions
    regarding the relationship between the legislature and the other branches of
    the state require a final and determinate answer from the courts,
[7]
when the interpretation
    engages a constitutional question, the standard is correctness.

[107]

This case presents a conundrum. Constitutional conventions are
    engaged, which gives a constitutional dimension to the interpretation exercise.
    But constitutional conventions are not law beyond a legislatures reach. Good
    constitutional order requires at least a presumption that the legislature did
    not intend to abrogate any constitutional conventions absent a clear signal to
    the contrary. All the signals in the Acts development and in its text are in
    the direction of respect for those conventions and the associated
traditions and practices.

[108]

I
conclude that the
    Commissioners interpretation of s. 12(1) was unreasonable. I would leave for
    another day the thorny question of whether the constitutional overlay in this
    case  that is, the constitutional conventions and associated traditions and
    practices surrounding the role of the Premier in matters pertaining to Cabinet
    deliberations  requires the Commissioner to be correct in his interpretation.

(2)

What is the pertinent context within which s.
    12(1) of the Act is to be interpreted?

[109]

The word context in the phrase, text, context, and purpose, has
    an external dimension, outside the Acts text, which positions the legislation
    in the larger world. The context also has an internal dimension by which the
    Act as a whole must be given a coherent interpretation that reconciles its
    access to information purpose in s. 1(a) with the purpose for the Cabinet
    records disclosure exemption in s. 12(1). I begin with the external dimension
    and then turn to the internal.

(a)

The external contextual dimension

[110]

In this section of the reasons, I consider the constitutional
    context and then the policies supporting public access to government
    information.

(i)

The constitutional context

[111]

The policy work behind the Act was largely done by
t
he Commission on
    Freedom of Information and Individual Privacy, which was headed by Dr. D.
    Carlton Williams.
[8]
The
    Williams Report noted that
the terms of reference directed us to consider possible changes in
    public information practices which would be compatible with the parliamentary
    traditions of the Government of Ontario.
[9]
These include those constitutional conventions and traditions
    surrounding the role of the Premier in matters pertaining to Cabinet
    deliberations. Such conventions and traditions form the deep contextual
    backdrop, which must not be ignored, forgotten, or paid mere lip service. T
he Report was sensitive to the political
    realities of Cabinet government and to how access to information should
    function, as is the Act, properly interpreted. The Commissioner was not
    similarly sensitive, nor was the Divisional Court.

The Westminster model of responsible government
    in Canada

[112]

The
Constitution
    Act, 1867
established a modified Westminster model of responsible
    government in Canada via the preamble, which mandates a Constitution similar
    in Principle to that of the United Kingdom. As Professor Peter Hogg notes:
    [T]he rules which govern [responsible government in Canada] are almost
    entirely conventional, that is to say, they are not to be found in the
    ordinary legal sources of statute or decided cases.
[10]
The various elements of the
    Westminster model form a tradition. A tradition is like an iceberg. The bulk of
    it is not immediately visible. Understanding a tradition in order to do no harm
    to it requires careful, attentive, and sensitive work.

[113]

I accept Hoggs general description of the Canadian version of the
    Westminster model of responsible government. He observes that the forms of
    monarchical government are retained, but real power is exercised by the elected
    politicians who give advice to the Queen and her representatives.
[11]

By convention, the Governor General
    selects as Prime Minister the person who can form a government that will enjoy
    the confidence of the House of Commons.
[12]

Hogg notes: Responsible government transfers the real
    power to the elected Prime Minister, who is the political head of state
.
[13]

[114]

The Prime Minister has two significant powers. The first is the
    power to select the other ministers, and the power to promote, demote or
    dismiss them at pleasure.
[14]
The Governor General appoints the ministers on the Prime Ministers
    advice.
[15]
The second power is to seek dissolution for an election.
[16]
Hogg observes that these powers, along with the special authority
    that comes from having won an election, ensures that the Prime Ministers
    voice will be the most influential one within the cabinet.
[17]


[115]

The appointed ministers meeting together as a group constitute
    Cabinet, which is in most matters the supreme executive authority.
[18]
Functionally, Cabinet formulates and carries out all executive
    policies, and it is responsible for the administration of all the departments
    of government.
[19]
Hogg adds that full Cabinets role in decision-making may depend
    in large measure upon the discretion of the Prime Minister because the Prime
    Minister calls the meetings of cabinet, settles the agenda, presides over the
    meetings, and defines the consensus
on each topic.
[20]

Accordingly, [t]he Prime Minister (or
    provincial Premier) effectively controls the executive branch of government
    through his control over ministerial appointments and over the cabinet
.
[21]


The separation of powers

[116]

The constitutional doctrine of the separation of powers has applied
    since Confederation. The courts have policed the division of powers and, since
    1982, also compliance with the
Charter
.
[22]

Although the separation of powers in Canada is not
    strict, Canadian constitutional law recognize[s] and sustain[s] some notion of
    the separation of powers.
[23]

[117]

The three branches are the executive, the legislative, and the
    judicial.
[24]
Most of the case law on the separation of powers has considered the line
    between the judicial and the legislative branches, which is necessary to ensure
    impartial justice. The line between the executive and the legislative is less
    distinct and has been addressed less often.

[118]

Karakatsanis J. observed: All three branches have distinct
    institutional capacities and play critical and complementary roles in our
    constitutional democracy.
[25]
She added a relevant caution: However, each branch will be unable to fulfill
    its role if it is unduly interfered with by the others. Karakatsanis J. cited
    the words of McLachlin J.
:
It is fundamental to the working of government as a whole that all these parts
    play their proper role, to which McLachlin J. added her own caution: It is
    equally fundamental that no one of them overstep its bounds, that each show
    proper deference for the legitimate sphere of activity of the other.
[26]

[119]

A functional and purposive approach must be taken to the question of
    what powers and privileges each branch has in relation to the others. The
    analysis must engage what each branch functionally needs in order to perform
    its expected role within the constitutional polity. This flows ineluctably from
    the nature of the Westminster model of responsible government, as the cases
    have recognized.

The executive-legislative separation

[120]

Some commentators, including Hogg, posit that in the Westminster
    model, there is no separation of powers between the executive and legislative
    branches because [t]he head of the executive branch, the cabinet, draws its
    personnel and its power to govern from the legislative branch, the Parliament;
    and the cabinet controls the Parliament.
[27]
However, in my view, this position is insufficiently nuanced because it ignores
    the realities of how responsible government functions in practice and the
    constitutional conventions that hedge that practice about.
[28]

[121]

Professor Dennis Baker disputes Hoggs assertion that the separation
    of powers between the executive and legislative branches would make little
    sense in a system of responsible government.
[29]
To the contrary, Baker states: Far from being antithetical to responsible
    government the executive-legislative separation is logically necessary for
    responsible government to work.
[30]
I agree with Baker.

[122]

Bitter historical experience, Baker notes, made neither legislative
    nor monarchical absolutism particularly appealing. He explains:

While the pre-Civil War experience with
    Charles I confirmed the fears of a king with absolute prerogatives, the
    subsequent experience with the Long Parliament raised serious doubts about
    legislative supremacy. Following Montesquieu, Blackstone understood this
    history as confirming the desirability of
partial
executive and legislative independence since either total union or total
    disjunction would in the long run lead to tyranny.
[31]


[123]

This insight led to the development of the mixed polity of the
    Westminster model. Baker explains: To fulfill its purpose of moderate
    government, the separation of powers might permit significant inter-branch
    interactions, even exertions of influence and control, but must prohibit
    arrangements that place one power entirely in the hands of another.
[32]

[124]

Baker argues that the separation of powers continues to play a
    vital [role] in Canadas constitutional design, albeit one that has been
    obscured by what he calls the exaggerated claim of executive-legislative
    fusion.
[33]
Viewed through this lens, he notes, the fundamental rule of the separation
    of powers (the power of no branch may be wholly exercised by another) can be
    easily discerned.
[34]
Each branch has a sphere of independence, but each is sufficiently hobbled to
    require the support of the others, which leads to a measure of interdependence.
    For example, the legislative branch has no executive capacity and the executive
    branch cannot enact legislation.
[35]

[125]

The concept of fusion implies that executive control of the
    legislative branch is absolute, but this does not bear close scrutiny. It is
    more accurate to say that there is a considerable degree of integration
    between the legislative and executive branches.
[36]

[126]

However, most telling, in my view, is Bakers observation that:
    [T]he subtle interplay of formal and informal power maintains and animates an
    effective institutional separation between the legislature and the executive.
[37]
This is the Anglo-Canadian
    version of constitutional checks and balances. It raises squarely the issue of
    Cabinet functionality; Cabinet serves as a connecting link between the two
    branches.
[38]

Cabinet, in functional terms

[127]

I now look more closely at the role of Cabinet within the
    Westminster system. In functional terms, Cabinet is to be understood as a
    forum, presided over by the Prime Minister, where Ministers meet to propose,
    debate and decide government policy and action.
[39]
It is the place where
    Ministers decide, as a group, how the executive power should be exercised.
[40]

[128]

Several building blocks are essential for Cabinet to be able to
    function effectively as a political body nested in Parliament or in the
    Legislative Assembly. These building blocks are fostered and protected by
    constitutional conventions. I focus on three: candour, solidarity, and
    confidentiality. Necessary and tight links among these conventions make
    possible the proper functioning of our parliamentary system in which the risk
    of a vote of no-confidence is ever-present. This risk is particularly acute in
    minority governments but still exists in a majority, if only as a more remote
    possibility. The Prime Minister and Cabinet must accommodate Cabinets own
    internal tensions, occasionally balky bureaucrats, hear from caucus and secure
    caucus support, marshal sufficient support in the House (challenging in
    minority times), and attune the governments program both to day-to-day
    contingencies and to past and future electoral commitments designed to secure
    re-election.

[129]

Cabinet functionality depends on its members being free to
    communicate with complete candour. As McLachlin C.J. noted: Those charged with
    the heavy responsibility of making government decisions must be free to discuss
    all aspects of the problems that come before them and to express all manner of
    views, without fear that what they read, say or act on will later be subject to
    public scrutiny.
[41]
Cabinet could not carry out its policy-making and policy-vetting
    responsibilities if its members were inhibited in their debate by the prospect
    of public disclosure.

[130]

As for solidarity, all ministers accept responsibility collectively
    for Cabinet decisions and must resign or expect dismissal if they publicly
    dissent.
[42]
Ministers could not credibly offer public support and positive explanations for
    policy decisions they opposed in Cabinet deliberations were that opposition to
    become publicly known.

[131]

Confidentiality links candour and solidarity. The confidentiality of
    Cabinets deliberations enables frank discussion and dissent during its
    meetings while preserving public-facing collective responsibility for its
    decisions.
[43]
These
    three essential constitutional conventions underwrite the protected sphere in
    Cabinet within which government policy can be developed and debated, as the
    cases recognize.
[44]

(ii)

The policy context for access to information

[132]

The Williams Report led to the enactment of the Act
in 1988
. The policy development process
    was sensitive to the political realities of Cabinet government and the
    functional issues because, to repeat, the terms of reference directed the
    Commission to consider changes that were compatible with the parliamentary
    traditions of the Government of Ontario.
[45]

[133]

The Williams Report recognized the tension between a compelling
    public interest in open government, on the one hand, and a compelling public
    interest in effective government, on the other, which recognizes the critical
    needs of government for confidentiality.
[46]
The Report did not set about to substantially depart from Cabinets
    current practices or well-established traditions, which are rooted in
    constitutional conventions, nor did its recommendations do so. The Report, as
    an added example, noted the need to preserve the anonymity of public servants,
[47]
because not doing so would
mark a
    significant departure from this well-established tradition
,
[48]
which was not desired.

[134]

The goal was to provide public accessibility to government documents
    in order to facilitate [i]ncreased access to information about the operations
    of government.
[49]
The
    Williams Report recognized that there was a need to render government more
    accountable to the electorate, and that facilitating informed public
    participation in the formulation of public policy was desirable.
[50]
Achieving these ends would enhance the ability of the public to
    hold elected representatives accountable and the ability of members of the
    legislature to hold the executive accountable. The Report was confident that
    the critical balance between the public interest in access and the government
    need for confidentiality could be achieved by means of statutory exemptions
    from the general rule of public access.
[51]

[135]

Pertinent to the task of interpreting the exemption in s. 12(1) of
    the Act, the Williams Report stated: [I]t is obvious that the confidentiality
    of Cabinet deliberations must be preserved in a freedom of information scheme.
[52]
The question was how an
    exemption relating to this matter should be drafted.
[53]
The Report listed documents considered to be Cabinet documents:

[A]gendas, informal or formal minutes of the
    meetings of Cabinet committees or full Cabinet, records of decision, draft
    legislation, Cabinet submissions and supporting material, memoranda to and from
    ministers relating to matters before Cabinet, memoranda prepared by Cabinet
    officials for the purpose of providing advice to Cabinet, and briefing
    materials prepared for ministers to enable them to participate effectively in
    Cabinet discussions.
[54]

[136]

The Williams Report noted: The disclosure of
many
of these documents would have the effect of disclosing the nature of Cabinet
    discussions and the advice given or received by Cabinet members, and
    accordingly 
all
such material should be considered
    exempt under a freedom of information scheme.
[55]

[137]

I now turn to the internal dimension of the context by which the Act
    as a whole must be given a coherent interpretation that reconciles its purpose
    of promoting access to information with the purpose of its s. 12(1) Cabinet
    records exemption.

(b)

The internal dimension

[138]

Two observations: First, it was open to the legislature to enact
    legislation requiring Cabinet to be much more forthcoming in its disclosure
    than
Cabinets prior practices
    or well-established traditions
would permit or require.
[56]
Instead, the enacted
    legislation contains provisions that are substantially similar to those
    proposed in the relevant sections of the Williams Report. Second, while providing
    a right of access to government information, the Act shares the Reports real
    diffidence around Cabinet records.

[139]

Against the rich background of the external dimension described
    above, I look at s. 12(1) from the perspective of the text and the
    legislative history, which together show the legislatures intent.

[140]

The full text of s. 12(1) provides:

(1) A head shall refuse to disclose
    a record where the disclosure would reveal
the substance
    of deliberations
of the Executive Council or its committees,
including
:


(a)

an agenda, minute or other record of the
    deliberations or decisions of the Executive Council or its committees;


(b)

a record containing policy options or
    recommendations submitted, or prepared for submission, to the Executive Council
    or its committees;


(c)

a record that does not contain policy options or
    recommendations referred to in clause (b) and that does contain background
    explanations or analyses of problems submitted, or prepared for submission, to
    the Executive Council or its committees for their consideration in making
    decisions, before those decisions are made and implemented;


(d)

a record used for or reflecting consultation
    among ministers of the Crown on matters relating to the making of government
    decisions or the formulation of government policy;


(e)

a record prepared to brief a minister of the
    Crown in relation to matters that are before or are proposed to be brought
    before the Executive Council or its committees, or are the subject of
    consultations among ministers relating to government decisions or the
    formulation of government policy; and


(f)

draft legislation or regulations. [Emphasis added.]

The meaning of the underlined words 
    the substance of deliberations and including  is hotly disputed in this
    case.

(i)

The text

[141]

The first perspective relates to the strength of the provisions
    language.
I infer that the
    exemption in s. 12(1) for Cabinet records is intended to be especially strong.
    T
he text in the opening words of s. 12(1) is
    imperative: A head
shall
refuse to disclose a
    record (emphasis added). This mandatory wording leaves the head no
    discretion. Similar language is found in other sections such as s. 21 (personal
    privacy). Contrast this with the permissive and discretionary language about
    records covered in certain other sections, including s. 13(1) (advice to
    government), which the head
may
refuse to
    disclose (emphasis added). This inference about the strength of the s. 12(1)
    exemption is reinforced by contrasting s. 23 of the Act, which builds in
    flexibility and allows exemptions from disclosure to be lifted where there is a
    compelling public interest.
It
    is especially instructive that the s. 23 public interest override does
not
apply to Cabinet records under s. 12(1), even though
    it does to a refusal under s. 13. Nor does the purpose language in s. 1(a)
    of the Act, which provides that necessary exemptions from the right of access
    should be limited and specific, take priority over the s. 12(1) exemption.

(ii)

The legislative history

[142]

The second perspective on the text takes into account the legislative
    history, which can provide guidance in statutory interpretation.
[57]
The Attorney General for Ontario points out that a proposed
    amendment to Bill 34 (the predecessor draft Bill to the Act) would have limited
    the exemption from disclosure in s. 12(1) solely to the records listed in the
    subparagraphs.
[58]
The
    amendment was defeated. This reinforces the view that the expression the substance
    of deliberations was meant to be broad enough to encompass the listed records
    without being limited to only those records.

[143]

I make four additional points.
First, I set out above the Williams Reports explanation for the
    list of particular records it would have included in the subparagraphs.
    However, here I focus on different words
: The disclosure of
many
of
    these documents would have the effect of disclosing
the nature of Cabinet discussions
and the advice given or received by
    Cabinet members.
[59]
In other words, the Reports focus was less on the list of records than on the
    principle: keeping confidential the nature of Cabinet discussions so that
    those discussions could proceed unharried by outside influences.
In other words, even though not
all
the listed documents  only
many

    would or would
always
have the effect of
    disclosing Cabinet discussions, it is noteworthy that the Report recommended
    that 
all such material should be considered exempt
under a freedom of information scheme.
[60]

[144]

My second point is that it is instructive to contrast the wording of
    the Williams Report recommendation on Cabinet records with the opening words of
    s. 12(1)
[61]
:



Freedom of Information and
          Protection of Privacy Act
, R.S.O. 1990, c. F.31, s. 12(1)

Text of the Williams Report



Cabinet records

12(1) A head shall refuse to disclose a
          record where the disclosure would reveal the substance of deliberations of
          the Executive Council or its committees, including,

1. We recommend that the proposed freedom
          of information law contain an exemption for documents whose disclosure would
          reveal the substance of Cabinet deliberations and, in particular, that the
          following kinds of Cabinet documents be the subject of this exemption:



[145]


Note the use of the
    words, the following
kinds
of Cabinet documents
    in the Williams Report. This is another way of expressing and underlining the
    Reports worry about keeping
the
    nature of Cabinet discussions confidential.

[146]

Third, the Williams Report gave two signal cautions that also made
    their way into the Act. Any disclosure regime must not have the effect of
    rushing Cabinet into a decision. Accordingly, there should be no disclosure of
    material forwarded before Cabinets consideration of it.
[62]
Further, the Report accepted that [t]here may be many situations
    in which Cabinet might properly wish to delay public announcements of its
    decisions.
[63]

[147]

My fourth point is that the Act expands the reach of the exemption
    beyond the Reports recommendations in several ways. Notably, s. 12(1) of the
    Act generally uses the formulation of the Executive Council
or its committees
 while the Report only used a similar
    formula once.
[64]
Next,
    the Report would have limited the exemption under subparagraph (b) to records
    containing proposals or recommendations submitted, or prepared for submission,
by a Cabinet Minister to Cabinet
, but the Act provides
    a broader, more generic exemption: policy options or recommendations
    submitted,
or prepared for submission
. Finally,
    the Report would have limited the exemption under subparagraph (c) to the time
    before such decisions are made while the Act states: before those decisions
    are made
and implemented
. The enacted language is
    more protective of Cabinet records than the proposed language in the Williams
    Report.

[148]

I noted above that the Williams Report
    evinced
real diffidence around the confidentiality of Cabinet
    records. The Commission appears to have favoured setting clear rules for
    Cabinet records.
[65]
The practical reason for such a blanket rule is to avoid disputes over specific
    documents of the sort this case exemplifies. I will return to this point below.

(3)

What is the purpose of s. 12(1) of the Act?

[149]

The consideration of the external and the internal contextual
    dimensions set out above leads me to conclude that the purpose for the
    exemption from the disclosure of Cabinet records in s. 12(1) of the Act is to
    establish a robust and well-protected sphere of confidentiality within which
    Cabinet can function effectively, one that is consistent with the established
    conventions and traditions of Cabinet government.
The preservation of the confidentiality of Cabinet
    discussions [is] a necessary feature of a freedom of information scheme
    compatible with the parliamentary traditions of the Government of Ontario,
the Williams Report noted,
warning that giving the public a right of access to documents revealing
    the nature of Cabinet deliberations would be a substantial departure from
    current practice.
[66]

[150]

This purpose


to establish a
    robust and well-protected sphere of confidentiality within which Cabinet can
    function effectively  is reinforced by the mandatory and absolute nature of
    the protection in s. 12(1) and by the exclusion of s. 12(1) from the s. 23
    public interest override. It is also more modestly reinforced by the slight
    adjustments in s. 12(1)s subparagraphs in favour of more confidentiality made
    by the legislature to the language proposed in the Williams Report.

[151]

At bottom, s. 12(1)s purpose resonates profoundly with the values
    and virtues of Ontarios version of Westminster responsible government, and
    facilitates what Baker called, to repeat: the subtle interplay of formal and
    informal power [that] maintains and animates an effective institutional
    separation between the legislature and the executive.
[67]

(4)

In light of the context and purposes, what
interpretation of the text of s. 12(1) should the Commissioner have
    adopted?

[152]

The analysis of this question is divided into three sections: the
    approach to be applied to the interpretation of s. 12(1) of the Act; the role
    of the functional approach; and the Premiers role in Cabinet in the
    interpretation exercise. In my view, the illustrative approach best captures
    the purpose of the exemption, and is supported by the functional approach to
    Cabinet government discussed above, taking into account the particular role
    played therein by the Premier.

(a)

Two approaches
    to the interpretation of s. 12(1) of the Act

[153]

When the word including is used in legislation, the issue often is
    which of two approaches, the expansive approach or the illustrative
    approach, was legislatively intended. Professor Ruth
Sullivan states that: The purpose of a list of
    examples following the word including is normally to emphasize the broad
    range of general language and to ensure that it is not inappropriately read
    down so as to exclude something that is meant to be included.
[68]
Sullivan adds:
It is not always obvious whether a list
    that follows includes is meant to expand the scope of the stipulated
    definition or merely illustrate it.
[69]


[154]

In interpreting s. 12(1), the Commissioner did not take the
    illustrative approach, which is endorsed by the Attorney General for Ontario.
    Instead he took the competing expansive approach, which is endorsed by the
    CBC and the interveners.

[155]

The expansive approach holds that, but for their express inclusion
    in s. 12(1)s subparagraphs, the listed records would not necessarily be caught
    by the opening words and so would otherwise require specific exemption from
    disclosure.
[70]
The subparagraphs are thus said to expand the scope of the general exemption
    of records that would reveal
the substance of
    deliberations
 by going beyond the underlined words to the list in the
    subparagraphs. The expansive approach takes a correlatively narrow view of the
    meaning of that expression.

[156]

Take the word agenda in subparagraph (a) as an example. Because an
    agenda sets out a list of topics for discussion at a meeting, it could not
    reveal any actual deliberations. The expansive approach argues that agenda
    should not be understood to be included in the expression the substance of
    deliberations because that expression refers only to actual deliberations at
    the Cabinet table. Or, as my colleague puts it, the Commissioners approach is
    only protective of communications within Cabinets deliberative process that
    would reveal the substance of its formulation of government policies.
[71]
But for its inclusion in
    subparagraph (a), a Cabinet agenda would be disclosable under s. 1 of the Act.
    On the expansive approach, the same argument would apply to the records in
    subparagraphs (b), (c), (e), and (f), which are all records prepared by someone
    else for Cabinet to discuss and would not thereby describe any actual
    deliberations.

[157]

By contrast, the illustrative approach holds that subparagraphs (a)
    to (f) serve to identify or illustrate the types of records that, if
    disclosed, would reveal the substance of deliberations. The list of protected
    records in the subparagraphs informs the interpretation of the substance of
    deliberations and posits a different meaning: this expression refers to the
    nature of the topics, subject matters, or things Cabinet would be discussing, as
    well as to the deliberations themselves. The illustrative approach takes a
    broader view of the exemption.

[158]

In my opinion, the illustrative approach best achieves and
    instantiates the purpose of s. 12(1), which is to establish a robust and
    well-protected sphere of confidentiality within which Cabinet can function
    effectively. This result flows from the purpose of the legislation and the
    legislative history of s. 12(1) of the Act discussed above, and by the functional
    and purposive approach taken in the cases on the operation of the separated
    powers, and the particular role assigned to the Premier.

[159]

I am
    fortified in my view by the decision of the British Columbia Court of Appeal in
Aquasource.
[72]
That court took the same
    approach to Cabinet records as the Williams Commission, and
adopted a
    broad reading of the substance of deliberations in s. 12(1) of B.C.s
    legislation, which provided:

The head of a public body must refuse to disclose to
    an applicant information that would reveal the substance of deliberations of
    the Executive Council or any of its committees, including any advice,
    recommendations, policy considerations or draft legislation or regulations
    submitted or prepared for submission to the Executive Council or any of its
    committees.
[73]

[160]

Donald
    J.A. held that the phrase the substance of deliberations, when read together
    with the clause, including any advice, recommendations, policy considerations
    or draft legislation or regulations, plainly refers to 
the body of information
which Cabinet considered (or
    would consider in the case of submissions not yet presented) in making a
    decision.
[74]
Accordingly, s. 12(1) must be read as widely protecting the confidence of
    Cabinet communications.
[75]
Donald J.A. concluded that the test for whether something is protected under s.
    12(1) is: Does the information sought to be disclosed form the basis for
    Cabinet deliberations?
[76]
In my view, the
Aquasource
approach is sound.

[161]

The
    Commissioner rejected this approach, preferring the analysis of the Nova Scotia
    Court of Appeal in
OConnor
.
[77]
I disagree with my colleague
    that the Commissioner made appropriate use of
OConnor
. In that case, the court
rejected
Donald J.A.s
focus on the body of information Cabinet
    considered in its deliberations, and instead adopted a narrower test for Nova
    Scotias Cabinet records exemption.
[78]
The Commissioner preferred the statutory interpretation of
OConnor
to that of
Aquasource

on the basis that the general approach articulated by
    the Nova Scotia Court of Appeal in
OConnor
aligns more closely with the language
    of the [Ontario] exemption.
[79]

[162]

In applying the
OConnor
approach to the words of s. 12(1) of the Ontario Act, the Commissioner failed
    to adequately take into account the salient differences between the respective
    statutes. In
OConnor
,
    Saunders J.A. found that his provinces access to information legislation is
    uniquely and
deliberately more generous to its citizens and is intended
    to give the public greater access to information than might otherwise be
    contemplated in the other provinces and territories in Canada, including
    Ontario.
[80]
It is decidedly not the case that the
OConnor

approach 
aligns more closely with the language of the
    [Ontario] exemption. There is simply no basis on which the Commissioner could
    reasonably prefer
OConnor
to
Aquasource
.
    Given the text, context, and purpose of Ontarios Act, the opening words of s.
    12(1) of the Act create a broader sphere of protection surrounding Cabinet
    confidentiality. This includes protection over the body of information
    Cabinet will consider in its deliberations.

(b)

The functional approach in interpretation

[163]

I now go deeper into the constitutional backdrop and draw on the
    cases describing what is necessary for the proper and effective functioning of
    Cabinet government. The functional approach is evident in
Ontario (Public Safety and Security) v.
    Criminal Lawyers' Association
,
where McLachlin C.J. and Abella J. make
    several pertinent observations.
[81]
They note: It may also be that a particular government function is
    incompatible with access to certain documents. The example they give is the
    need to preserve secrecy and privacy in judicial deliberations. Public access
    would impair the proper functioning of the court by preventing full and frank
    deliberation and discussion at the pre-judgment stage. They add: The
    principle of Cabinet confidence for internal government discussions offers
    another example. They urge that attention be paid to the historic function of
    a particular institution [which] may assist in determining the bounds of
    institutional confidentiality because certain government functions and
    activities require privacy.
[82]
They explain: Certain types of documents may remain exempt from disclosure
    because disclosure would impact the proper functioning of affected
    institutions.

[164]

La Forest J. stated in
Carey
    v. Ontario
: I would agree that the business of government is
    sufficiently difficult that those charged with the responsibility for running
    the country should not be put in a position where they might be subject to
    harassment making Cabinet government unmanageable.
[83]
In making this statement, he cited Lord Reids trenchant observation
    in
Conway v. Rimmer
:

[The premature disclosure of Cabinet confidences]
    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.
[84]


McLachlin C.J. added her agreement in
Babcock
and pointed out
    that: [M]inisters undertake by oath as Privy Councillors to maintain the
    secrecy of Cabinet deliberations and the House of Commons and the courts
    respect the confidentiality of Cabinet decision-making.
[85]

[165]

Manageability and reasonable functionality underpin the functional approach
    taken by the courts.

I note that
Babcock
is cited several times in the Commissioners reasons, mostly in reciting
    Cabinet Offices submissions, but he ignores its teaching. Instead, he should
    have paid more respectful attention to the constitutional backdrop, as the
    Assistant Commissioner did in Order PO-1725.
[86]

(c)

The Premiers role in Cabinet

[166]

Neither the premiers nor the Prime Minister are expressly mentioned
    in the
Constitution Act, 1867
.
    Their constitutional roles and functions are conventional, not prescribed,
    which makes it essential to be careful in discerning what is at stake when a
    convention is touched. Neither the reason for, nor the proper reach of, a
    convention is necessarily completely obvious.

[167]

In Order PO-1725, Assistant Commissioner Tom Mitchinson provided an
    insightful articulation of the Premiers role in Cabinet. The requester in that
    case sought access to the electronic and hardcopy appointment books of a named
    senior employee in the Premiers office, whose job title and employment
    responsibilities deal directly and primarily with policy formulation and the
    overall priority-setting and co-ordination of the governments policy agenda.
[87]
Many entries were found to
    qualify for exemption from disclosure under the opening words of s. 12(1), although
    some were not.
[88]

[168]

The Assistant Commissioner considered carefully the constitutional
    conventions and traditions surrounding the role of the Premier in matters
    pertaining to Cabinet deliberations.
[89]
The Assistant Commissioner reviewed the authorities on the conventions
    surrounding the Premier and Cabinet, and accepted the description of the
    integral role the Premier plays in the functioning of Cabinet presented by Dussault
    and Borgeat, who state:

[Cabinet] is responsible for determining the
    ways and means of economic, social and cultural progress and is called upon to
    translate into legislation and into concrete programs the values underlying its
    rise to power or its remaining in power. Above all, therefore, it represents a
    centre for reflection and decision. By its very nature, the Cabinet is an
    institution for compromise, with respect to which its primary role is to
    determine priorities, to plan and to establish political strategy.



[T]he ultimate responsibility for decision-making,
    although ascribable to Cabinet members as a group, is conferred in particular
    upon the Prime Minister who dominates its activities. This results since he or
    she is the head of Cabinet and receives technical briefs and also since he or
    she has the power to determine the agenda for meetings and to exert control
    over the support staff. The Prime Minister has recently been termed the
    guiding force, co-ordinator and arbitrator of the executive decision-making
    process. Possessing,
inter
    alia
, such powers as the authority to appoint his or her
    colleagues, the Prime Minister dominates the administrative machinery.
[90]

Dussault and Borgeat noted that, while
    ministers are generally viewed as equals, the Prime Minister or Premier is
    without doubt a little more equal than the others.
[91]

[169]

Against this background, the Assistant Commissioner framed three
    broad principles that guided his disposition, which warrant reproduction:

Firstly, by virtue of
the Premiers unique role in setting the
    priorities and supervising the policy making, legislative and administrative
    agendas of Cabinet, the deliberations of the Premier
, unlike those of individual ministers of the Crown,
cannot be separated from the deliberations of
    Cabinet as a whole
. The Premiers consultations
    with a view to establishing Cabinet priorities are an integral part of Cabinets
    substantive deliberative processes.
To the extent that records reflect consultations bearing on the
    policy making and priority setting functions within the constitutionally
    recognized sphere of the Premiers authority as first minister, those records,
    by definition, may be seen as reflecting the substance of deliberations of the
    whole Cabinet
.

Secondly, in our modern parliamentary
    democracy, the Premier functions by and large through the instrumentality of
    staff within his Office.



Thirdly, the Premiers policy-making and
    priority setting functions do not occur in a vacuum, but within the political
    framework which brought the ruling party to power. Cabinet, and the Premier in
    his capacity as leader of the winning party, are charged with the task of
    prioritizing and implementing the major policy choices of party members by
    translating political party values into strategies for legislation and other
    programs. By virtue of his dual role as party leader and head of Cabinet, the
    Premier is at the apex of both the political and legislative policy-making
    functions. In the person of the Premier, Cabinet deliberations cannot be
    divorced from the consensus building process that must occur within the
    democratic political environment.
[92]

[170]

These words reveal the radical discontinuity between the approach
    taken in Order PO-1725 and by the Commissioner in this case. The Assistant
    Commissioner unequivocally found that, owing to the constitutional conventions
    and traditions, the deliberations of the Premier, unlike those of individual
    ministers of the Crown, cannot be separated from the deliberations of Cabinet
    as a whole. The Commissioner quotes this statement early in his reasons in
    reciting the submissions of Cabinet Office,
[93]
but he never directly engages with the statements implications for the
    interpretation of s. 12(1).

[171]

The Commissioners chain of reasoning rests on two propositions.
    First, s. 12(1) implicitly distinguishes between the substance of
    deliberations and the outcome of deliberations. Second, s. 12(1) of the Act applies
    only to Cabinet as a whole; because the mandate letters are at best outcomes
    of the Premiers deliberations, they do not fall within the expression
    substance of deliberations. In addition, the Commissioner construed Order
    PO-1725 too narrowly. I address each point in turn.

(i)

The distinction between outcomes and
    deliberations is not material in this case

[172]

The Commissioners view is that the mandate letters are at best outcomes
    of the Premiers deliberations that do not fall within the substance of
    deliberations of Cabinet as a whole.
[94]
I reject the relevance of this distinction in this case.

[173]

I accept that there are circumstances where the distinction between
    the substance and the outcome of deliberations would be meaningful, such as
    when the outcome of Cabinets deliberations on an issue has been publicized but
    the substantive details of the matters deliberated upon by Cabinet to reach
    that outcome have not.
[95]
However, I would qualify the distinction in two ways.

[174]

First, the Act is concerned about premature disclosure. For example,
    subparagraph (c) expressly exempts materials used in reaching a decision
    before those decisions are made and implemented. Further, s. 18(1)(g),
    exempts: information where the disclosure could reasonably be expected to
    result in premature disclosure of a pending policy decision. In construing the
    Act coherently, the concern about premature disclosure counsels caution in
    making an overly sharp distinction between deliberations and outcomes in a
    chain of reasoning in assessing the application of s. 12(1).

[175]

Second, chains of deliberative reasoning are usually comprised of
    alternating outcomes and further deliberations until the end of the chain when
    the ultimate outcome appears. There is no sense in which the Act would require
    the disclosure of any interim outcome in a chain of deliberative reasoning.
    In Cabinet, where that deliberative chain culminates in draft legislation or
    regulations, it is still protected from disclosure.

[176]

The question arises: If the mandate letters are disclosable on the
    basis that they are merely the outcomes of the Premiers deliberations and are
    not therefore part of Cabinet deliberations, what other decisions of the
    Premier sent in documentary form to Cabinet ministers would not also be
    disclosable? The ramifications could force large and ultimately unproductive
    changes in the way the Premier communicates with ministers. Consider, for
    example, the content of a new mandate letter written to a minister just
    appointed to replace an underperforming minister. It is hard to imagine that
    such a new letter would not reflect in its instructions to the new minister the
    Premiers displeasure with the performance of the old minister, quite likely
    the subject of Cabinet discussion, especially when compared to the mandate
    letter to the old minister.

(ii)

The Premier is not separate from Cabinet

[177]

As the above discussion of Order PO-1725 reveals, it is a novel
    proposition  one that I reject in this case  that the Premiers deliberations
    as head of Cabinet can be separated from those of the rest of Cabinet,
    specified by the Commissioner several times as Cabinet as a whole, for the
    purpose of applying the Act.
[96]

[178]

Drawing a hard line between the Premiers deliberative process and
    that of the rest of Cabinet would not respect the way Cabinet functions because
    it would interfere with the subtle interplay of formal and informal power
    [that] maintains and animates an effective institutional separation between the
    legislature and the executive.
[97]
Doing so would be contrary to the instructions given to the Williams Commission,
    and faithfully reflected both in its Report and in the Act, that reforms be
compatible with the parliamentary
    traditions of the Government of Ontario.
[98]

[179]

The Premier sets the agenda of the government and Cabinet in the
    large sense.
[99]

His mandate
    letters reflect the outcome of a deliberative process on the Premiers part,
    assisted no doubt by staff and political advisers. However, as Cabinet Office
    put it before the Commissioner, the letters also initiate a continuing
    deliberative process at Cabinet.
[100]
They signal the tasks  the agenda  that the Premier expects each minister to
    undertake within the ministers portfolio.
In my view, the Premiers deliberations leading to the
    mandate letters, and the letters themselves, are part of Cabinets deliberative
    process.
The entire set of mandate letters should be
    seen as the starting instructions for Cabinet in the new mandate, or as blueprint[s]
    to inform discussion at the Cabinet table.
[101]
While they contain some campaign-style language, to varying degrees they also
    go further and, in some instances, signal the need for further policy work that
    will inevitably return to Cabinet. They are records that would reveal the
    nature of Cabinet deliberations within the meaning of the substance of
    deliberations.

(iii)

The Commissioner overstates the holding in Order
    PO-1725

[180]

The Commissioner overstates the holding in Order PO-1725 in
    asserting that the records at issue in that case were deliberative in nature
    because they provided a roadmap revealing how and why policy choices were made
    by the Premier.
[102]

[181]

The holding in Order PO-1725 does not go that
    far. First, the Assistant Commissioner noted: While many of these references
    consist of abbreviations, acronyms or initials, persons knowledgeable in the
    affairs of government would likely be in a position to identify most of these
    references both as to subject matter
and the persons or entities involved.
[103]
He added:

To the extent that the records reveal the
    issues and options upon which the Premier or the named individual is reflecting
    in formulating and establishing Cabinets agenda  used here in its broadest
    sense  these records would tend to reveal the substance of this deliberative
    process and, therefore, the substance of the deliberations of Cabinet in the
    context of the Premiers unique role within that body.
[104]

[182]

Note that the substance of the deliberative process can only mean
    the subject matter under consideration, not the Premiers actual deliberations.
    The Assistant Commissioner noted: It is only by virtue of the capacity of
    these entries to reflect the Premiers deliberations in establishing Cabinets
    priorities that they fall within the introductory wording of section 12(1) by
    revealing the substance of that exercise.
[105]

[183]

There is, with respect, no way that the scheduling entries could
    reveal the Premiers actual deliberations, only their subject matter. The
    entries would provide a form of roadmap as to the activities of the named
    employee, but they would not reveal how and why policy choices were made by
    the Premier. The Commissioners conclusion is completely speculative.

[184]

To conclude, because the mandate letters are the product of the
    Premiers deliberations, in his role as head of Cabinet, and initiate Cabinets
    mandate going forward, they are, perforce, part of Cabinets deliberations and
    are fully protected from disclosure by the opening words of s. 12(1). As I
    stated at the outset, this determination is dispositive of the appeal.

(d)

The test applied

[185]

The design of the s. 12(1) exemption aims to protect the
    confidentiality of certain kinds of documents whose disclosure would reveal the
    nature of Cabinets deliberations, that is, the topics, subject matters, things
    or the body of information Cabinet would be discussing.

[186]

The pertinent question is whether the particular record resembles or
    is analogous to a record in the list or would otherwise reveal the nature of
    Cabinet deliberations.
The
    mandate letters are analogous to the records listed in ss. 12(1)(d) and
    (e), respectively:
a record used for or reflecting
    consultation among ministers of the Crown on matters relating to the making of
    government decisions or the formulation of government policy, there being no
    doubt that the Premier is a Cabinet minister; and a record prepared to brief a
    minister of the Crown in relation to matters that are before or are proposed to
    be brought before the Executive Council or its committees. It is no stretch to
    apply these words to the mandate letters.

[187]

The design of the s. 12(1) exemption emplaces metaphorical bollards
    in the form of categorical exemptions in order to provide robust protection of
    the sphere of confidentiality within which Cabinet can function effectively. Departing
    from this interpretation would engage the Commissioner and the court in a
    deconstructive exercise in which every questioned record would be parsed and
    pared down to some irreducible core of actual communications at the Cabinet
    table. The Commissioners analysis portends this outcome.

(5)

Is the Commissioners new test compatible with s.
    12(1)?

[188]

At the outset, I stated that I would also allow the appeal on the
    basis that the Commissioners new test for an exemption from disclosure is
    fundamentally incompatible with the text, context, and purpose of s. 12(1) of
    the Act. I address the general approach to establishing an exemption, the
    Commissioners new test, and problems with the new test and why it is
    unreasonable.

(a)

Establishing an exemption from disclosure

[189]

It is axiomatic that the party invoking the s. 12(1) exemption must explain
    why it applies. To some extent, that explanation will lay out the nature of the
    record and how it relates to s. 12(1), both the opening words and any
    applicable subparagraph. The forensic pattern is seen in the old case of
Conway
, which was a civil
    action by a former probationary police constable against his former
    superintendent for damages for malicious prosecution. The Home Secretary
    asserted absolute Crown privilege in certain documents. However, because the
    documents concerned internal police administration, the court concluded that
    they might not be Crown-privileged, properly speaking. Afterwards, Lord Reid
    examined the documents and ordered them to be produced in the civil action.

[190]

Note the tension. There is a certain performative inconsistency. The
    party claiming the exemption is required to disclose the records in some
    measure in order to prove entitlement. In practice, this is done under seal
    with numerous redactions, as in this case. But the tension sets a conundrum for
    the party seeking the exemption and for the decision-maker charged with
    policing the Act. How much disclosure is required to justify the application of
    the Cabinet records exemption? There is a considerable distance from the fairly
    respectful treatment the Premiers Office received in Order PO-1725 to the
    dismissive and intrusive approach taken by the Commissioner in this case.

[191]

The Assistant Commissioners approach in Order PO-1725 was
    altogether more consistent with the broad interpretive approach explained
    earlier than the order under appeal. The Commissioner was unreasonable in
    failing to take the same approach to the mandate letters.

[192]

In my view, the content of the mandate letters on their face
    constitutes sufficient evidence to trigger the exemption from disclosure
    provided for in the opening words of s. 12(1), quite apart from the evidence
    that they were on a Cabinet agenda and distributed on that occasion. Nothing
    more was reasonably required by way of evidence.

(b)

The Commissioners new test

[193]

The test for the opening words exemption expressed in Order PO-1725
    was that the disclosure would permit the drawing of accurate inferences with
    respect to the deliberations of Cabinet or its committees.
[106]
However, the Commissioner
    ratchetted up this test by incorporating language drawn from Order PO-1725s
    discussion of the agenda exemption in subparagraph (a). The Assistant
    Commissioner explained why the appointment book entries in Order PO-1725 did
    not meet the definition of agenda. In this context he said:

Nor would such an entry, standing alone,

normally be found to reveal the substance
    of Cabinet deliberations, unless either the context or other

additional information would
permit the reader to draw accurate inferences
    as to actual deliberations occurring at a specific Cabinet meeting
. Therefore, none of the entries in the records at issue in

these appeals is an agenda, nor could any
    of these records be said to reveal any part of a Cabinet

agenda.
[107]

[194]

The Commissioner adopted the underlined words as the proper test
    under the opening words of s. 12(1). He stated: If a record does not appear at
    paragraphs (a) to (f), it will only qualify for the exemption if the context or
    other information would permit accurate inferences to be drawn as to actual
    Cabinet deliberations at a specific Cabinet meeting.
[108]
But he took the underlined phrase from Order PO-1725 entirely out
    of its context (i.e., a technical discussion of the exemption for a Cabinet
    agenda) and then adopted the words as his new test. The person seeking the
    exemption in the opening words of s. 12(1) must show that disclosure would
    permit accurate inferences to be drawn as to
actual
Cabinet deliberations at a
specific
Cabinet
    meeting, on the balance of probabilities.

[195]

Notably, this new test is not consistent with the Assistant
    Commissioners actual holding in Order PO-1725, where the test was whether the
    disclosure would permit the drawing of accurate inferences with respect to Cabinet
    deliberations. Because the appointment book entries could signal to an astute
    observer what was on the table at a Cabinet meeting  that is, what was
    discussed and not the deliberations themselves  this was itself sufficient to
    trigger the exemption.
[109]
In other words, the accurate inferences were about the subject matter of the
    deliberations, not the actual deliberations as in who said what to whom.

[196]

The Commissioner considerably heightened the test for the exemption
    from disclosure. He went too far. He was right to reject CBCs submission that
    the opening words exemption be limited 
to records which permit accurate inferences to be
    drawn regarding discussion of the pros and cons of a course of action.
[110]
However, I find perplexing his additional comment
that in his view, the words of the exemption
may
extend more generally to include Cabinet members'
    views, opinions, thoughts, ideas and concerns expressed within the course of
    Cabinets deliberative process.
[111]
Is there really any doubt that those items would be covered by the exemption?
    Why use the word may?

[197]

In any event, the Commissioners new test does not fall far short of
    CBCs proposal.

(c)

Problems with the new test

[198]

I noted above that the Commissioners approach would engage the IPC
    and the court in a deconstructive exercise in which every questioned record
    would be parsed and pared down to some irreducible core of actual
    communications at the Cabinet table, with everything else being disclosable.
    The Commissioners forensic approach bears this out.
He stated that
evidence of a
    document actually having been placed before Cabinet provides strong but not
    necessarily determinative evidence that disclosing its content could reveal the
    substance of deliberations.
[112]
He required an institution to provide evidence establishing a linkage between
    the content of a record and the substance of Cabinet deliberations.
[113]

[199]

The Commissioner then assessed the evidence:

Cabinet Office does not claim or provide
    evidence that the mandate letters were themselves, in fact, discussed at the
    Cabinet meeting when they were provided to each minister or that they were
    tabled or made generally available for discussion. There is no evidence that
    the mandate letters were distributed to Cabinet as a whole at that time or that
    any specific contents of the letters were actually the subject of the
    deliberations of Cabinet.
[114]

[200]

The Commissioner took the view that the assumption that the mandate
    letters would have been discussed at the meeting on which they were listed as
    an agenda item falls well short of the standard in section 12(1) that
    disclosure of the mandate letters
would
    reveal
the substance of any Cabinet deliberations at the initial
    Cabinet meeting.
[115]
He added: 
Without additional
    evidence of what transpired in the course of the initial Cabinet meeting, the
    mandate letters at best provide an indication of topics that
may

have arisen during that meeting.
[116]

[201]

The Commissioner, in effect, suggested that only an affidavit by
    someone present at the Cabinet meeting and knowledgeable about what happened at
    it would be sufficient. That stance would presumably permit cross-examination.
    About what, precisely? One can imagine the cross-examination. Which letter was
    discussed, on the theory that any one not discussed would be disclosable? What
    in the letter was discussed, on the theory that anything discussed could be
    redacted and the rest disclosed? Was it just the reiterated campaign promise or
    did the discussion go to the new policy requirements because if it did not then
    that part of the letter would be disclosable?

[202]

The degree of micromanagement implicit in the Commissioners new
    test is palpable and entirely inconsistent with functional Cabinet government.
    One could get no deeper into the bowels of Cabinet government than this, which
    is precisely the mischief that s. 12(1) of the Act was designed to prevent.

[203]

I turn now to the future orientation. The mandate letters reveal
    prospective deliberations by Cabinet, which past IPC decisions have recognized
    may be sufficient to trigger exemption under the opening words of s. 12(1).
[117]
The Commissioner
    acknowledged that the opening words of s. 12 do, in general, contemplate the
    possibility of a prospective application,
[118]
but he rejected Cabinet Offices argument that the letters should be exempt
    from disclosure on the basis that they would reveal the substance of future
    Cabinet deliberations. It is worth attending to his precise words:

[T]here is no evidence that the mandate
    letters themselves would be placed before Cabinet in future meetings. The
    evidence before me establishes only that the subject matter of a number of
    unspecified policy initiatives in the letters would be considered at some point
    in future Cabinet meetings. This, too, is insufficient on its own to establish
    that disclosure of the letters would reveal the substance of any specific
    Cabinet deliberations occurring at a future date.
[119]

[204]

The Commissioner added:

While the mandate letters may be said to
    reveal the subject matter of what
may

come back to Cabinet for deliberation at some point in the future, they do
    not reveal the substance of any minister's actual proposals or plans for
    implementation, or the results of any consultations or program reviews and
    options. Consequently, they do not reveal the substance of any material upon
    which Cabinet members will actually deliberate in the future and, for that
    reason, do not reveal the substance of any such future deliberations.
[120]

[205]

Based on his interpretation of s. 12(1), the Commissioner viewed his
    factual finding that the subject matter of policy initiatives discussed in the
    letters would be considered at future Cabinet meetings as insufficient to
    exempt the mandate letters. However, when considered in view of the reasonable
    interpretation of s. 12(1), the mandate letters plainly fall within the
    meaning of the sections opening words.

[206]

Meeting the new test would require an affiant to provide future details
    that do not exist and would not exist until the policy development process is complete
    and the matter is before Cabinet. The Commissioner misapprehends the fluid
    nature and process of Cabinet government on which the categorical exemption in
    s. 12(1) rests.

[207]

In terms of the mischief, I can do no better than to repeat the
    words of Lord Reid, approved by the Supreme Court: 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.
[121]

[208]

To conclude, the purpose of s. 12(1) is to set a robust and
    well-protected sphere of confidentiality within which Cabinet can function
    effectively. Accordingly, the expression the substance of deliberations in s.
    12(1) is properly understood as including the nature of the topics, the subject
    matters, things or body of information Cabinet would be discussing, as well
    as the deliberations themselves.

[209]

The subjects covered in the mandate letters fall within this
    understanding. Such a reading would avoid the slippery slope to the kind of
    intrusive incursion into Cabinet proceedings that the Commissioner undertook in
    this case in seeking to determine whether there was actual discussion of the
    mandate letters at the relevant Cabinet meeting. The Commissioners new test is
    incompatible with s. 12(1) of the Act and is plainly unreasonable.

[210]

In light of the foregoing, and my earlier dispositive conclusion
    that the mandate letters are part of Cabinets deliberative process and
    therefore exempt from disclosure, I would allow the appeal and set aside the
    Commissioners order directing the release of the mandate letters.

(6)

Should the issue of the disclosure of the
    mandate letters be remitted to the Commissioner for disposition in accordance
    with these reasons?

[211]

The standard remedy in cases where the reviewing court has
    determined that an administrative decision-makers statutory interpretation
    cannot be sustained is for the court to remit the matter back to the
    decision-maker for reconsideration.
[122]
This remedy reflects respect for the legislatures intention that the
    administrative decision-maker should decide the issue. However, remedies are
    discretionary.
[123]
When it is evident that a particular outcome is inevitable and that remitting
    the case would therefore serve no useful purpose, the court may decline to
    remit the matter.
[124]

[212]

In this case, remitting the matter for reconsideration would serve
    no useful purpose, and I would not do so. The conclusion that the mandate
    letters qualify for exemption under the opening words of s. 12(1) flows
    inevitably from a reasonable interpretation of the provision. Although a
    reviewing court should not substitute its own decisions for those of an
    administrative decision-maker lightly, remitting this matter to the
    Commissioner for reconsideration would be pointless.
[125]

Released: January 26, 2022 E.E.G.

P. Lauwers J.A.


Appendix: s. 12(1) and the Williams Report Recommendations



Freedom of
          Information and Protection of Privacy Act
, R.S.O. 1990, c. F.31, s. 12(1)

Text of
          the Williams Report



Cabinet records

12(1) A head shall refuse to disclose a
          record where the disclosure would reveal the substance of deliberations of
          the Executive Council or its committees, including,

1. We recommend that the proposed freedom
          of information law contain an exemption for documents whose disclosure would
          reveal the substance of Cabinet deliberations and, in particular, that the
          following kinds of Cabinet documents be the subject of this exemption:



(a) an agenda, minute or other record of
          the deliberations or decisions of the Executive Council or its committees;

a. agenda, minutes or other records of
          the deliberations or decisions of Cabinet or its committees;



(b) a record containing policy options or
          recommendations submitted, or prepared for submission, to the Executive
          Council or its committees;

b. records containing proposals or
          recommendations submitted, or prepared for submission, by a Cabinet minister
          to Cabinet;



(c) a record that does not contain policy
          options or recommendations referred to in clause (b) and that does contain
          background explanations or analyses of problems submitted, or prepared for
          submission, to the Executive Council or its committees for their
          consideration in making decisions, before those decisions are made and
          implemented;

c. records containing background
          explanations, analyses of problems or policy options submitted or prepared
          for submission by a Cabinet minister to Cabinet for consideration by Cabinet
          in making decisions, before such decisions are made;



(d) a record used for or reflecting
          consultation among ministers of the Crown on matters relating to the making
          of government decisions or the formulation of government policy;

d. records used for or reflecting
          consultation among ministers of the Crown on matters relating to the making
          of government decisions or the formulation of government policy;



(e) a record prepared to brief a minister
          of the Crown in relation to matters that are before or are proposed to be
          brought before the Executive Council or its committees, or are the subject of
          consultations among ministers relating to government decisions or the
          formulation of government policy; and

e. records containing briefings to
          Cabinet ministers in relation to matters that are before or are proposed to
          be brought before Cabinet, or are the subject of consultations among
          ministers relating to government decisions or the formulation of government
          policy;



(f) draft legislation or regulations.

f. draft legislation.







[1]
Freedom of Information and Protection of Privacy Act
, R.S.O. 1990, c. F.31, s. 12(1).



[2]
Order PO-3973; Cabinet Office
    (Re)
, [2019] O.I.P.C. No. 155
, at para.
    101 (emphasis added).



[3]

Reasons of Sossin J.A., at para. 50.



[4]
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019
    SCC 65, 441 D.L.R. (4th) 1, at paras. 117, 121.



[5]
Vavilov
, at paras. 118-24.



[6]

Vavilov
, at paras. 115,
    119.



[7]

Vavilov
, at para. 55.



[8]

Public Government for Private
    People: The Report of the Commission on Freedom of Information and Individual
    Privacy
, vol. 2 (Toronto: Queens Printer of Ontario, 1980) (the Williams
    Report by the Williams Commission).



[9]
Williams Report,
at p. 83.



[10]
Peter W. Hogg
,

Constitutional Law in Canada
,
    loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2007), at para. 9-3.
    The most significant modification is the countrys federal structure. In this section,
I pick out of Professor Hoggs text some pertinent descriptive
    statements that are indisputable, though not, as he points out, absolute or
    without exception. The concepts applicable to the federal government apply with
    necessary modifications to the provinces; the Premiers are the Prime Ministers
    equivalent: Hogg
, at

paras.
9-1,
    9-3.
Ontarios Executive Council, the provincial equivalent of the Privy
    Council, is mandated by the
Executive Council Act
, R.S.O. 1990, c. E.25, although
    a number of other pieces of legislation affect its composition and functions
: see
F.F. Schindeler,
Responsible Government in Ontario

(Toronto: University of
    Toronto Press, 1969), at p. 30.



[11]

Hogg, at
para.
9-1.



[12]
Hogg, at para.
9-4.



[13]

Hogg, at
para.
9-1.



[14]

Hogg, at
para.
9-6.



[15]

Hogg, at
para.
9-4.



[16]

Hogg, at
para.
9-6.



[17]

Hogg, at
para.
9-6.



[18]
Hogg, at para. 9-5.



[19]

Hogg, at
para.
9-5.



[20]

Hogg, at
para.
9-5 (footnote omitted).



[21]

Hogg, at
para.
9-6.



[22]

Ontario v. Criminal Lawyers
    Association of Ontario
, 2013 SCC 43, [2013] 3
    S.C.R. 43, at paras. 27-31
, a decision that concerned
the appointment of
amicus curiae
by judges.



[23]

Cooper v. Canada (Human Rights
    Commission)
, [1996] 3 S.C.R. 854, at paras. 10-11,
per
Lamer C.J. And see Côté J.s
    partially dissenting reasons in
References
    re Greenhouse Gas Pollution Pricing Act
, 2021 SCC 11, 455 D.L.R. (4th)
    1, at para. 279.



[24]

The precise status in the constitutional pantheon of certain
    officials created by statute, such as the Auditor General, the Ombudsman and
    the Information and Privacy Commissioner, is unclear.



[25]

Criminal Lawyers Association
    of Ontario
, at para. 29.



[26]

New Brunswick Broadcasting Co.
    v. Nova Scotia (Speaker of the House of Assembly)
,
[1993] 1 S.C.R. 319, at p. 389,
    cited in
Criminal
    Lawyers Association
of
    Ontario
,
at
    para. 29.



[27]
Hogg, at para. 9-12.



[28]

These practical realities were well known to the Williams
    Commission, which took them into account. See below at paras. 132-37.



[29]
Hogg, at para. 7-15, cited in
Dennis René Baker,
Not Quite Supreme: The Courts
    and Coordinate Constitutional Interpretation
, (Montreal:
    McGill-Queens University Press, 2010), at p. 61.



[30]
Baker, at p. 61.



[31]

Baker, p. 58 (emphasis in original; footnotes omitted).



[32]

Baker, p. 60.
Apart from constitutional
    conventions, Baker notes, at pp. 61-62, that ss. 53 and 54 of the
Constitution Act, 1867
apportion
    responsibilities over public finances between the executive and legislative
    branches, thus explicitly recognizing the separation of powers beyond the
    constitutional conventions, citing
Janet Ajzenstat,
The Once and Future Canadian
    Democracy: An Essay in Political Thought
(Montreal and Kingston:
    McGill-Queens University Press, 2003), at p. 65.



[33]

Baker, at p. 83.



[34]

Baker, at p. 83.



[35]
See
Baker, Chapter 3, especially pp. 61-63.



[36]

Wells v. Newfoundland
,
    [1999] 3 S.C.R. 199, citing
Attorney
    General of Quebec v. Blaikie et al.
, [1981] 1 S.C.R. 312, at p. 320. In
Wells
, the court also stated that even
    though the separation of powers is not a rigid and absolute structure, the
    court should not be blind to the reality of Canadian governance that, except
    in certain rare cases, the executive frequently and
de facto
controls the legislature: at
    para. 54.



[37]
Baker, at p. 83.



[38]
The description of Cabinet as a connecting link is drawn from
    Walter Bagehots
The English Constitution
,
    7th ed. (London: Kegan Paul, Trench, Trübner & Co., 1894), at p. 11.
    However, although I accept this connecting link concept, I reject
    Bagehots overall executive-legislative fusionist view.



[39]
Yan Campagnolo, The Political Legitimacy of Cabinet Secrecy
    (2017) 51:1 R.J.T.U.M. 51, at p. 60. Campagnolo also explains, at pp. 60-61,
    that unlike the Privy Council, Cabinet has no legal existence or power. Rather,
    it is an informal advisory body. Executive power is exercised by the
    Governor in Council or individual Ministers, although from a conventional
    perspective, the Governor in Council or individual Ministers act on the advice
    of the Cabinet.



[40]
Campagnolo, at p. 60.



[41]

Babcock v. Canada (Attorney
    General)
, 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 18.



[42]
Sir W. Ivor Jennings,
Cabinet
    Government
, 2nd ed. (Cambridge: Cambridge University Press, 1951), at pp.
    257-58. See also Hogg, at para. 9-7.



[43]

See Campagnolo, at p. 63, and a publication from the Privy
    Council Office that, among other things, summarizes the principles of Cabinet
    solidarity and confidentiality:
Canada, Privy Council Office,
Open and Accountable Government
(2015),
    online: <http://pm.gc.ca/eng/news/2015/11/27/open-and-accountable-government>.



[44]

In addition to the text above, see below at paras. 163-65.



[45]

Williams Report, at p. 83.



[46]

Williams Report, at p. 235.



[47]

Williams Report, at p. 86.



[48]

Williams Report, at p. 90 (emphasis added).



[49]

Williams Report, at p. 77.



[50]

Williams Report, at p. 77.



[51]

Williams Report, at p. 277.



[52]

Williams Report, at p. 285.



[53]

Williams Report, at p. 285.



[54]

Williams Report, at p. 285 (footnote omitted).



[55]

Williams Report, at p. 285 (emphasis added).



[56]

This is what the Nova Scotia legislature did, as I discuss
    below at para. 162.



[57]
See
1704604 Ontario Ltd. v.
    Pointes Protection Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at
    paras. 12-14, citing
Canada (Canadian
    Human Rights Commission) v. Canada (Attorney General)
, 2011 SCC 53,
    [2011] 3 S.C.R. 471, at para. 43.



[58]
Ontario, Legislative Assembly,
Official Report of Debates (Hansard)
,
    33rd Parl., 1st Sess., No. 113 (10 February 1986), at p. 3955 (Norman
    Sterling).



[59]

Williams Report, at p. 285 (emphasis added).



[60]

Williams Report, at p. 285 (emphasis added).



[61]

The full contrasting text is set out in the Appendix.



[62]

Williams Report, at p. 287.



[63]

Williams Report, at p. 286.



[64]

Emphasis added throughout.



[65]

The Reports recommendations focused on the protection of
    physical Cabinet records. This concern with physical documents may relate to
    the historical formalization of Cabinet meetings. As Campagnolo notes, at pp.
    72-77, prior to the 20th century, Cabinet meetings were informal affairs with
    no organized system of record-keeping. The only official document recording
    Cabinet discussions was a letter from the Prime Minister to the Sovereign. However,
    due to the increasing complexity of state activities, measures were taken to
    improve executive decision-making efficiency, including the introduction of
    Cabinet secretariats. Yet, the establishment of Cabinet secretariats was
    accompanied by a new risk: that the written records of Cabinet meetings could
    be potentially accessible, including by members of an incoming government
    following a change of power. This led to the development of conventions that
    focused on the protection of physical records of Cabinets deliberations.



[66]

Williams Report, at p. 85.



[67]
Baker, at p. 83.



[68]
Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 6th ed. (Toronto.: LexisNexis Canada, 2014),
    at para. 4-38.



[69]

Sullivan,
at paras. 4-41 to 4-42,
citing
Entertainment Software Association v. Society of
    Composers, Authors and Music Publishers of Canada
, 2012 SCC 34, [2012] S.C.R. 231.



[70]

Reasons of Sossin J.A., at para. 43.



[71]

Reasons of Sossin J.A., at para. 37.



[72]

Aquasource Ltd. v. British
    Columbia (Freedom of Information and Protection of Privacy Commissioner)
,
    58 B.C.L.R. (3d) 61.



[73]

Freedom of Information and
    Protection of Privacy Act
, R.S.B.C. 1996, c. 16, s. 12(1).



[74]

Aquasource
, at para. 39
    (emphasis added).



[75]

Aquasource
, at para. 41.



[76]

Aquasource
, at para. 48.



[77]

OConnor v. Nova Scotia
    (Deputy Minister of the Priorities & Planning Secretariat)
,
    2001 NSCA 132, 197 N.S.R. (2d) 154.



[78]

OConnor
, at
    paras. 90-92.



[79]

Order PO-3973
,
    at para. 97.



[80]

OConnor
,
    at para. 57.



[81]

Ontario (Public
    Safety and Security) v. Criminal Lawyers' Association
, 2010 SCC 23,
    [2010] 1 S.C.R. 815, at para. 40.



[82]

Ontario (Public
    Safety and Security)
, at para. 40, citing
Montréal (City) v. 2952
‑
1366 Québec Inc
., 2005 SCC 62, [2005] 3 S.C.R. 141.



[83]
Carey v. Ontario
,
[1986] 2 S.C.R. 637, 1986 CanLII 7, at para. 50.



[84]

Conway
    v. Rimmer
, [1968] A.C. 910 (H.L.), at p. 952,
    cited in
Carey
, at para. 49.



[85]

Babcock
,
    at para. 18.



[86]

Order
    PO-1725
, [1999] O.I.P.C. No. 153.



[87]

Order
    PO-1725
, at para. 57.



[88]

Order
    PO-1725
, at paras. 61-64.



[89]

Order
    PO-1725
, at para. 50.



[90]
René Dussault and Louis Borgeat,
Administrative
    Law, A Treatise
, 2nd ed. (Toronto: Carswell, 1985), at pp. 59-60
    (footnotes omitted), cited in
Order PO-1725
, at para. 52.



[91]
Dussault and Borgeat, at p. 61.
For additional discussion of
    Cabinet, see generally Dussault and Borgeat, at pp. 51-63.



[92]

Order PO-1725
,
    at paras. 54-56 (emphasis added).



[93]

Order
    PO-3973
, at para. 23.



[94]

I also note that the Commissioner followed a line of
    IPC cases that draws a distinction between the substance and the subject
    matter of deliberations: see Information and Privacy Commissioner of Ontario
,

Order PO-3719

(2017), at para. 42;
Order PO-3720; Ontario (Ministry of
    Finance) (Re)
, [2017]
    O.I.P.C. No. 58, at paras. 33, 42, and 44;
Interim
    Order MO-2964-I; Greater Sudbury (City) (Re)
, [2013] O.I.P.C. No. 254, at paras. 37-39, 43, and
Interim Order MO-3684-I; North Bay (City) (Re)
, [2018] O.I.P.C. No. 236, at paras.
    18-21. As I indicated above, I reject this distinction because, understood in
    its proper context, s. 12(1) aims to protect the confidentiality of certain
    kinds of documents whose disclosure would reveal the matters Cabinet would be
    discussing, not just the content of its discussions. I also note that much of
    this IPC case law is rooted in the interpretation of the meaning of the
    substance of deliberations as it appears in s. 6(1)(b) of the
Municipal Freedom of Information and Protection of Privacy Act
. R.S.O. 1990, c. M.56. This section
    permits a head to refuse to disclose a record that reveals
the substance of
    deliberations
of a meeting of a council, board, commission or other body or
    a committee of one of them if a statute authorizes holding that meeting in the
    absence of the public (emphasis added). Although both provisions use the
    phrase the substance of deliberations, the s. 6(1)(b) exemption is unrelated
    to Cabinet records and therefore does not engage the constitutional conventions
    surrounding Cabinet confidentiality. As a result, the case law interpreting the
    scope of s. 6(1)(b) is of limited use in discerning the scope of s. 12(1).



[95]

Order PO-3752; Ontario
    (Ministry of Energy)
, [2017] O.I.P.C. No. 145
, at para. 40.



[96]
The Premier is not generally set apart from Cabinet.
As Hogg notes:
Not only do conventions presuppose the existence of
    law, much law presupposes the existence of conventions. The
Constitution Act, 1867

was
    drafted the way it was because the framers knew that the extensive powers
    vested in the Queen and Governor General would be exercised in accordance with
    the conventions of responsible government, that is to say, under the advice
    (meaning direction) of the cabinet or in some cases the Prime Minister. Modern
    statutes continue this strange practice of ignoring the Prime Minister (or
    provincial Premier) and his cabinet. They always grant powers to the Governor
    General in Council (or the Lieutenant Governor in Council) when they intend to
    grant powers to the cabinet. The numerous statutes that do this are of course
    enacted in the certain knowledge that the conventions of responsible government
    will shift the effective power into the hands of the elected ministry where it
    belongs:
at
para.
1-14
(footnote
    omitted).



[97]

Baker, at p. 83.



[98]
Williams Report,
at p. 83.



[99]

I do not use the word agenda in the technical meaning
    given by the Act: see
Order
    PO-1725
, at para. 60.



[100]

Order PO-3973
,
    at para. 27.



[101]

Order PO-3973
, at para. 27.



[102]

Order PO-3973
, at para. 130.



[103]

Order
    PO-1725
, at para. 58.



[104]

Order
    PO-1725
, at para. 59.



[105]

Order
    PO-1725
, at para. 60.



[106]

Order PO-1725
,
    at para. 48.



[107]

Order PO-1725
,
    at p. 60 (emphasis added).



[108]

Order PO-3973
,
    at para. 101.



[109]

Order PO-1725
,
    at paras. 58-59.



[110]

Order PO-3973
,
    at para. 98.



[111]

Order PO-3973
,
    at para. 98 (emphasis added).



[112]

Order PO-3973
,
    at para. 96, citing
Order
    PO-2320; Ontario (Ministry of Finance)
, [2004] O.I.P.C. No. 201,
    at para. 31.



[113]

Order PO-3973
,
    at para. 96.



[114]

Order PO-3973
,
    at para. 114.



[115]

Order PO-3973
,
    at para. 114 (emphasis in original).



[116]

Order PO-3973
,
    at para. 115 (emphasis in original).



[117]

See, for example,
Order PO-2707; Ministry of Education
, [2008] O.I.P.C.
    No. 166, at para. 64.



[118]

Order PO-3973
,
    at para. 120.



[119]

Order PO-3973
,
    at para. 116.



[120]

Order PO-3973
,
    at para. 119 (emphasis in original).



[121]

Conway
, at p. 952.



[122]

Vavilov
, at para. 141.



[123]

Entertainment Software
    Association v. Society of Composers, Authors and Music Publishers of Canada
,
    2020 FCA 100, [2020] F.C.J. No. 671,
at para. 99, leave to appeal
    granted, [2020] S.C.C.A. No. 392 (
Entertainment Software Association

(
FCA)),
    citing
Mobil Oil Canada
    Ltd. v. Canada-Newfoundland Offshore Petroleum Board
, [1994] 1
    S.C.R. 202 and
MiningWatch
    Canada v. Canada (Fisheries and Oceans)
, 2010 SCC 2, [2010] 1
    S.C.R. 6.



[124]

Vavilov
, at para. 142.



[125]
See
Entertainment Software
    Association

(
FCA), at
    para.
100;
Vavilov
,
    at para. 142; and
Giguère v. Chambre des
    notaires du Québec
, 2004 SCC 1, [2004] 1 S.C.R. 3, at para.
66,
per

Deschamps J.
    (dissenting).


