



COURT OF APPEAL FOR ONTARIO

CITATION: Barker v. Ontario (Information and Privacy Commissioner),2019 ONCA 275

DATE: 20190409

DOCKET: C65372

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Dr. Kim Barker

Applicant
(Respondent)

and

Ontario (Information
    and Privacy Commissioner of Ontario)
and

Algoma Public Health

Respondents
(
Appellant
and
Respondent
)

Linda Hsiao-Chia Chen, for
    the appellant

Alexandra V. Mayeski, for
    the respondent Algoma Public Health

Marvin J. Huberman and
    Anita Fineberg, for the respondent Dr. Kim Barker

Heard: December 11, 2018

On appeal from the judgment
    of the Divisional Court (Justices Frances P. Kiteley, E. Ria Tzimas and Wendy
    M. Matheson), dated December 18, 2017, with reasons reported at 2017 ONSC 7564,
    quashing two decisions of the Information and Privacy Commissioner of Ontario, dated
    March 10, 2016 and June 8, 2016.

Rouleau J.A.:

A.

OVERVIEW

[1]

This appeal arises from a request under the Municipal
    Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56
    (MFIPPA or the Act), for access to a report, dated March 27, 2015, that
    KPMG prepared (the KPMG Report or the Report) at the request of Algoma
    Public Health (APH).

[2]

APH, as record holder, determined that while the personal
    information in the KPMG Report would normally be exempt from disclosure under
    s. 14(1) of MFIPPA, the entire Report should be released based on the public
    interest override under s. 16 of the Act.

[3]

The KPMG Report includes personal information concerning
    Dr. Kim Barker, APHs former Medical Officer of Health and Chief Executive Officer.
    She unsuccessfully appealed APHs decision to release the KPMG Report to the
    Information and Privacy Commissioner of Ontario (the Commissioner). The
    Commissioner found that there existed a compelling public interest in the
    disclosure of the record that clearly outweighed the purpose underlying the
    personal privacy exemption of the Act.

[4]

The Commissioner subsequently dismissed Dr. Barkers
    request for reconsideration.

[5]

The Divisional Court quashed both of the
    Commissioners decisions on the basis that his reasons for decision did not
    permit the court to conclude that his decisions fell within a range of
    reasonable outcomes.

[6]

This court granted the Commissioners motion for
    leave to appeal the Divisional Courts decision. The focus of the appeal is the
    reasonableness of the Commissioners decision ordering disclosure of the KPMG
    Report pursuant to s. 16 of MFIPPA.

[7]

As I will explain, I conclude that the
    Commissioners decisions were reasonable and, accordingly, I would allow the
    appeal.

B.

BACKGROUND

(1)

Statutory Scheme

[8]

Before turning to the facts of the case, it is
    important to understand the statutory context in which they arise.

[9]

Section 1 of MFIPPA sets out its dual purposes:

The purposes of this Act are,

(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,

(ii) necessary exemptions from the right of access should be
    limited and specific, and

(iii) decisions on the disclosure of information should be
    reviewed independently of the institution controlling the information; and

(b) to protect the privacy of
    individuals with respect to personal information about themselves held by
    institutions and to provide individuals with a right of access to that
    information.

[10]

Section 1 highlights the competing interests that the Act addresses and
    that require balancing: the right to access information and the protection of
    the privacy of individuals with respect to personal information.

[11]

[P]ersonal information is defined in s. 2 of the Act. Its definition
    provides a non-exhaustive list of recorded information about an identifiable
    individual that qualifies as personal information. In this case, the
    Commissioner found that the KPMG Report contained personal information of Dr.
    Barker falling within the following categories:

(a) information relating to the race, national or ethnic
    origin, colour, religion, age, sex, sexual orientation or marital or family
    status of the individual,

(b) information relating to the education or the medical,
    psychiatric, psychological, criminal or employment history of the individual or
    information relating to financial transactions in which the individual has been
    involved,



(g) the views or opinions of another individual about the
    individual, and

(h) the individuals name if it
    appears with other personal information relating to the individual or where the
    disclosure of the name would reveal other personal information about the
    individual.

[12]

Section 4(1) of MFIPPA guarantees a right of access to records held by
    an institution but carves out exceptions to that right:

4 (1) Every person has a right of access to a record or a
    part of a record in the custody or under the control of an institution unless,

(a) the record or the part of the record falls within one of
    the exemptions under sections 6 to 15; or

(b) the head is of the opinion
    on reasonable grounds that the request for access is frivolous or vexatious.

[13]

Under s. 4(2), the head (and, on appeal, the Commissioner) is, as a
    general rule, required to disclose as much of a record that includes exempted
    personal information as possible:

(2) If an institution
    receives a request for access to a record that contains information that falls
    within one of the exemptions under sections 6 to 15 and the head of the
    institution is not of the opinion that the request is frivolous or vexatious,
    the head shall disclose as much of the record as can reasonably be severed
    without disclosing the information that falls under one of the exemptions.

[14]

In this case, the parties agreed that personal information contained in
    the KPMG Report was exempt from disclosure under s. 14.

[15]

Section 14, which concerns personal privacy, has four subsections.

[16]

Section 14(1) of the Act prohibits disclosure of personal information unless
    one of the enumerated exceptions applies. In this case, the most relevant exception
    was s. 14(1)(f):

14(1) A head shall refuse to disclose
personal information
to any person
    other than the individual to whom the information relates
except,



(f) if the disclosure does not
    constitute an unjustified invasion of personal privacy.

[17]

Turning to s. 14(2), it provides statutory guidance in determining
    whether disclosure of personal information would constitute an unjustified
    invasion of privacy. Some of the factors under s. 14(2) weigh in favour of
    disclosure, while others weigh against it. Dr. Barker argues that subsections (e),
    (f), (g), (h), and (i) apply and weigh against disclosure in this case:

14(2) A head, in determining whether a disclosure
    of personal information constitutes an unjustified invasion of personal
    privacy, shall consider all the relevant circumstances, including whether,

(a) the disclosure is desirable for the
    purpose of subjecting the activities of the institution to public scrutiny;

(b) access to the personal information may
    promote public health and safety;

(c) access to the personal information will
    promote informed choice in the purchase of goods and services;

(d) the personal information is relevant to a
    fair determination of rights affecting the person who made the request;

(e) the individual to whom the information
    relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly
    sensitive;

(g) the personal information is unlikely to be
    accurate or reliable;

(h) the personal information has been supplied
    by the individual to whom the information relates in confidence; and

(i) the
    disclosure may unfairly damage the reputation of any person referred to in the
    record.

[18]

Under s. 14(3), the disclosure of certain categories of personal
    information is presumed to constitute an unjustified invasion of personal privacy.
    This includes, for example, medical information, information relating to an
    individuals employment history, and information regarding an individuals
    personal finances.

[19]

Subsection 14(4) provides three exceptions to the presumptions against
    disclosure under subsection (3). For instance, s. 14(4)(a) permits the
    disclosure of the classification, salary range and benefits, or employment
    responsibilities of an individual who is or was an officer or employee of an
    institution.

[20]

Once the various subsections of s. 14 have been applied and a
    determination is made as to which personal information is protected from
    disclosure, that information must be redacted from the record before its
    release, unless s. 16 applies.

[21]

Section 16, which is central to this appeal, provides as follows:

An exemption from
    disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if
    a compelling public interest in the disclosure of the record clearly outweighs
    the purpose of the exemption.

[22]

Thus, under s. 16, which establishes a very high threshold for
    disclosure, the Commissioner must balance competing considerations  an
    exercise which engages the Commissioners expertise under the Act.

[23]

With that context in mind, I now turn to the facts of this case.

(2)

Events Giving Rise to Legal Proceedings

[24]

The events in question date back to 2013, when APH hired Shaun
    Rootenberg as its interim Chief Financial Officer (CFO). He held that role from
    November 25, 2013 to May 31, 2014.

[25]

In January 2015, the media reported that Mr. Rootenberg had a criminal
    record for multiple counts of fraud. Questions arose thereafter as to how he
    could have been hired given his criminal record and whether APH had suffered
    any losses as a result. The publics concern about his hiring was heightened
    due to the fact that APHs previous CFO had been charged with breach of trust
    and theft over $5,000.

[26]

These concerns led APH to retain KPMG to conduct a forensic
    investigation into potential conflicts of interest in the hiring of Mr.
    Rootenberg and whether APH had suffered any financial losses as a consequence
    of his tenure with APH. KPMGs report was provided to APH in March 2015.

[27]

On May 8, 2015, a journalist requested disclosure of the KPMG Report
    pursuant to
MFIPPA
. This
    request gave rise to this appeal.

(3)

Legal Proceedings

(a)

Decision by APH

[28]

APH, as record holder, determined that the KPMG Report contained
    personal information concerning several individuals, including Dr. Barker, who
    had been involved in the CFO hiring process.

[29]

Pursuant to the provisions of
MFIPPA
,
    APH provided notice of the access request to the parties whose personal
    information was contained in the KPMG Report and invited them to make
    submissions.

[30]

Dr. Barker opposed the requested disclosure, arguing that her personal
    information in the KPMG Report was exempt from disclosure under s. 14 of MFIPPA.

[31]

APH determined that, despite the inclusion of personal information,
    access to the entire KPMG Report should be granted. It considered that,
    pursuant to s. 16 of the Act, a compelling public interest in disclosure of the
    KPMG Report clearly outweighed the purpose of the s. 14 exemption, as
    disclosure of the Report would shed light on the operations of APH and would
    be in accordance with MFIPPAs purpose.

(b)

Appeal to the Commissioner and Reconsideration Request

(i)

Appeal to the Commissioner

[32]

Dr. Barker appealed to the Commissioner, who upheld APHs decision to
    release the entire KPMG Report.

[33]

In his reasons, the Commissioner explained that large portions of the Report
    contained KPMGs opinions about Dr. Barker and included her name alongside
    other personal information, within the meaning of s. 2(1)(g) and s. 2(1)(h) of
    MFIPPA, as well as other personal information as defined by ss. 2(1)(a) and (b)
    of the Act.

[34]

The Commissioner found that the majority of the personal information [was]
    highly sensitive, as contemplated by section 14(2)(f): at para. 35. He also noted
    that some of the information was supplied with the reasonable expectation that
    the information would be treated confidentially, as required for the factor at
    section 14(2)(h) to apply: at para. 35. The Commissioner therefore concluded
    that the test in s. 14 had been met: disclosure of the personal information would
    constitute an unjustified invasion of privacy.

[35]

He went on, however, to determine that there was a compelling public
    interest in disclosure of the full KPMG Report. In his view, the public had an
    interest in knowing whether there had been a conflict of interest in the
    appointment of the former interim CFO and whether public funds had been lost or
    misappropriated by APH during his tenure. The public interest was heightened given
    the ongoing controversy surrounding financial management at APH.

[36]

Although the s. 14 protection against unjustified invasions of personal
    privacy was important, the individuals whose personal information appeared in
    the KPMG Report held positions requiring them to be accountable to the
    community, the board of APH, and the Ministry of Health and Long-Term Care. As Dr.
    Barkers personal information [was] inextricably linked to whether a conflict
    of interest existed in relation to the appointment of the former interim CFO,
    the Commissioner concluded that the important public policy basis for the
    personal privacy exemption must yield to a stronger and more compelling public
    interest in disclosure of the record which directly speaks to the effectiveness
    and integrity of APH and its former officers: at para. 71.

[37]

The Commissioner also considered whether any portions of the record
    ought to be redacted but concluded that there was a compelling public interest
    in disclosure of the entire KPMG Report. Given his conclusion that the s. 16
    public interest override applied, he determined that it was not necessary to
    identify exactly which portions of the Report constitute[d] personal
    information: at para. 28. He noted that Dr. Barker did not make any submissions
    on the application of s. 14.

(ii)

Reconsideration Request

[38]

Following receipt of the decision, Dr. Barker requested that the Commissioner
    reconsider his decision.

[39]

In her reconsideration request, Dr. Barker argued that the Commissioners
    reasons for decision ought to have identified each portion of the KPMG Report
    that constituted personal information. In her submission, without such an
    explicit identification, the Commissioner was unable to analyze whether the s.
    14 exemption, as it applied to each piece of personal information, was
    overridden by the publics interest in disclosure of each of these pieces of
    protected information. This, in her view, constituted a fundamental defect in
    the adjudication process and a failure of the Commissioner to exercise [his] jurisdiction
    in accordance with
MFIPPA
: at p. 4.

[40]

The Commissioner found that no valid grounds for reconsideration had
    been made out. He stated that he had specifically considered the purpose of
    the personal privacy exemption and whether or not the public interest in
    disclosure clearly outweighed the purpose of that exemption in the specific
    circumstances: at p. 5.

[41]

The Commissioner cautioned that his decision not to describe the
    portions of the record which contain[ed] personal information should not be
    confused for a lack of consideration of such portions: at p. 5. He had
    specifically considered whether any portions ought to be withheld but found a
    compelling interest in disclosure of the entire KPMG Report. As such, the
    failure to specify in his reasons which portions of the record included
    personal information did not constitute a fundamental defect warranting
    reconsideration. He stated that the inclusion of such information in the
    reasons would have been redundant in light of the application of the public
    interest override: at p. 6.

(c)

Judicial Review Application to the Divisional Court

[42]

Dr. Barker sought judicial review of both the Commissioners decisions.
    She alleged that there were a number of reviewable errors, including the Commissioners
    failure to identify the personal information that qualified for exemption from
    disclosure under s.14.

[43]

The Divisional Court allowed the application, quashed the Commissioners
    decisions, and remitted the matter to the Commissioner to undertake the process
    afresh.

[44]

In the Divisional Courts view, the Commissioners reasons did not
    permit the court to conclude that the decisions fell within a range of
    reasonable outcomes. According to the Divisional Court, the Commissioner was
    required to identify each piece of personal information that was exempted from
    disclosure under s. 14, and then balance each piece of exempted information
    under s. 16:

The determination of what portions
    of the Report fall within the s. 14 exemption is not a simple matter. The
    statutory regime under
MFIPPA
requires
    that the decision-maker apply a series of statutory provisions that serve to
    include and exclude information at each step, and then balance the information
    that is exempted against the public interest under s. 16. This must be done for
    each piece of personal information in the Report: at para. 44.

[45]

Only those portions of the exempted information that met the high
    threshold in s. 16  where a compelling public interest clearly outweighs the
    purpose of the exemption  would be disclosed. The portions that did not meet
    this high threshold would be redacted before disclosure of the Report.

[46]

As the Commissioners reasons did not contain this detailed analysis,
    the Divisional Court could not assess whether the outcome was reasonable. The Commissioners
    decisions were therefore found to be unreasonable.

C.

ANALYSIS

(1)

Issues

[47]

The key issue on appeal is the reasonableness of the Commissioners
    decision, on the appeal from the APH decision, ordering the release of the entire
    KPMG Report. A secondary issue is the reasonableness of his reconsideration
    decision, in which he concluded that the necessary grounds for reconsideration
    had not been established.

[48]

In arguing that the Divisional Courts decision should be overturned,
    the Commissioner makes a number of arguments, including that the Divisional
    Court improperly applied the reasonableness standard. The Commissioner also
    argues that his application of s. 16 was reasonable in the circumstances, and that
    it was unnecessary to identify and separately weigh each and every piece of protected
    personal information in the KPMG Report in the assessment of whether the s. 16
    override should apply. APH supports the Commissioners position and relies on his
    arguments on the appeal.

[49]

As I will explain, Dr. Barker takes issue with the Commissioners
    decision to release the Report on a number of grounds. She submits that the
    Commissioner erred in failing to identify and weigh each piece of her protected
    personal information and that he gave insufficient weight to the purpose of s.
    14 in his s. 16 balancing. At the Divisional Court, she had also submitted that
    the Commissioners decision was unreasonable because he failed to refer to and
    apply subsections (e), (g), and (i) of s. 14(2) and to consider that adequate
    information regarding Mr. Rootenbergs employment with APH was already in the
    public domain. She had also argued that the Commissioner could have redacted
    some of the personal information in the KPMG Report instead of ordering the
    release of the entire report.

[50]

Before turning to these issues, I will first discuss the standard of
    review applicable in this case.

(2)

Reasonableness Standard

[51]

The parties agree that the standard of review is reasonableness. This court
    explained, in
Ontario (Ministry of Finance) v. Higgins et al.
(1999),
    118 O.A.C. 108, leave to appeal refused, [1999] S.C.C.A. No. 134, that
    deference was owed to the Commissioners application of an equivalent public
    interest override provision in the
Freedom of Information and Protection of
    Privacy Act
, R.S.O. 1990, c. F.31. The court expressed it this way, at
    para. 2:

The legislature has
    entrusted the application of s. 23 [public interest override] to the issue of
    disclosure of any particular record first to the head, and then to the inquiry
    officer. Both the application of the section and therefore its interpretation
    are within the expertise of the inquiry officer under the Act whose decision
    must be accorded deference by the courts.

[52]

The Supreme Court confirmed that decisions regarding the
    interpretation and application of the
FIPPA
are generally subject to
    review on a standard of reasonableness:
Ontario (Public Safety and
    Security) v. Criminal Lawyers' Association
, 2010 SCC 23, [2010] 1 S.C.R.
    815, at para. 70.

[53]

Central to this appeal is the application of the reasonableness
    standard in the circumstances of this case. It is thus helpful to review how it
    should be applied.

[54]

In
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190,
    the Supreme Court stated that
reasonableness is concerned
    with the existence of justification, transparency and intelligibility within
    the decision-making process, as well as with whether the decision falls
    within a range of possible, acceptable outcomes which are defensible in respect
    of the facts and law: at para. 47.

[55]

In
Newfoundland and Labrador Nurses Union v.
    Newfoundland and Labrador (Treasury Board)
, 2011 SCC
    62, [2011] 3 S.C.R. 708, the court clarified that adequacy of reasons is not a
    stand-alone basis for quashing a decision. Rather, the exercise is more
    organic, as the reasons must be read together with the outcome and serve the
    purpose of showing whether the result falls within a range of possible
    outcomes: at para. 14.

[56]

When they engage in this exercise, courts must show respect for the
    decision-making process of adjudicative bodies with regard to both the facts and
    the law: at para. 15. As Abella J. explained at paras. 16 and 18,
    reasons do not have to be comprehensive or perfect
to satisfy the reasonableness standard. Indeed, [a]

decision-maker is not
    required to make an explicit finding on each constituent element, however
    subordinate, leading to its final conclusion: at para. 16. The reasons only need
    to adequately explain the bases of [the] decision: at para. 18.
Assessing a decision on a reasonableness standard is a contextual
    exercise, which includes the nature of the statutory task, the evidence, the
    parties submissions, and the process.

[57]

Applying the relevant principles in this case, I am satisfied that the
    Commissioners decision to release the KPMG Report, as well as his
    reconsideration decision, were both reasonable.

(3)

APPEAL DECISION

(a)

Adequacy of the Reasons

[58]

As I have explained, the Divisional Court allowed Dr. Barkers
    application for judicial review because it found that the Commissioners
    reasons did not permit the court to conclude that his decisions fell within a
    range of reasonable outcomes.

[59]

The Divisional Court went further. It found that there had been a refusal
    by the Commissioner to disclose the portions of the record protected from
    disclosure under s. 14. It was the absence of that information in the reasons
    that prevented the Divisional Court from assessing the reasonableness of the
    Commissioners application of the s. 16 test.

[60]

The court identified the deficiency in the Commissioners reasons as
    follows:

Given the acknowledged need to disclose only that portion of
    the exempted information that meets the s. 16 clearly outweighs balancing
    test, each piece of personal information that is exempted under s. 14 must form
    part of the analysis that the section requires. In this case, we do not know
    what the Commissioner was weighing as against the public interest. This is not a
    matter of considering what reasons could be offered in support of the decision;
    it is a matter of not knowing what his decision was on that complex issue,
    which is prerequisite to the application of s. 16: at para. 68.

[61]

As I will explain, I respectfully disagree with the Divisional Court
    that the Commissioners reasons do not permit the court to conclude that his decision
    falls within a range of reasonable outcomes.

[62]

In assessing the Commissioners reasons and decision, I begin by considering
    the statutory task before him and the parties submissions.

(i)

Statutory Task

[63]

Reasons must be responsive to the statutory task before the court.

[64]

Where s. 14 is engaged but there is no s. 16 issue, the Commissioner
    will apply s. 14 and identify the personal information that is protected from
    disclosure. In this exercise, the Commissioner will necessarily have to
    identify each piece of personal information protected from disclosure because each
    of these pieces will have to be redacted from the record before it is
    disclosed: MFIPPA, s. 4(2).

[65]

It follows, therefore, that the reasons will set out the Commissioners
    s. 14 analysis as it relates to the various pieces of personal information that
    should be redacted. This analysis may invoke consideration of various parts of
    s. 14(1) to determine whether any of subsections (a) to (f) apply, as well as
    consideration of ss. 14(2) to (4) where relevant. The reasons will typically
    identify the personal information, explain the basis for making the redactions,
    and, if applicable, why other information was not redacted.

[66]

In this case, the key issue before the Commissioner was the application
    of s. 16 in a case where, as detailed below, the parties agreed that the Report
    contained Dr. Barkers personal information, that s. 14(1)(f) did not apply
    because disclosure of the information would be an unjustified invasion of
    personal privacy, and that this personal information was protected from
    disclosure under s. 14.

[67]

When s. 16 comes into play, an additional level of analysis is required.
    As explained by the Divisional Court, the application of s. 16 involves a
    two-step process. First, there must be a compelling public interest in the
    disclosure of the record.  Second, that public interest must clearly outweigh
    the purpose of the exemption: at para. 56.

[68]

When s. 16 must be considered, the two broad purposes of the Act are,
    in essence, in conflict. As explained above, s. 1 of the Act specifies the
    Acts two purposes: (1) to provide access to information under the control of
    institutions, and (2) to protect the privacy of individuals with respect to
    personal information about themselves held by the institution. A determination
    under s.16 involves a balancing of these competing purposes with regard to the
    particular circumstances of the case.

[69]

In my view, there is no set formula that the Commissioner must follow in
    drafting reasons engaging with these issues. The level of specificity that may
    be required will depend on the circumstances, including the nature of the
    personal information and the provisions of the Act that are at play. The reasons
    should, however, be responsive to the issues raised and the positions advanced
    by the affected parties. This is not meant to suggest that if a party fails to
    raise an issue, such failure will absolve the Commissioner of his duty to
    ensure the statute is properly applied.

[70]

I now turn to the positions advanced in this case.

(ii)

Submissions to the Commissioner

[71]

Dr. Barkers submissions to the Commissioner provide important and
    necessary background to understand what is and what is not contained in the
    Commissioners reasons.

[72]

In her submissions, Dr. Barker commented that [a] review of section
    14(2) and (3) assist in understanding the purpose of the exemption, but then added
    in a footnote that section 14(2) and (3) need not be applied in this case as
    APH has acknowledged the mandatory exemption applies: at para. 32, n. 10. Given
    APHs concession, Dr. Barker told the Commissioner that her representations
    would focus only on whether the section 14 exemption should not apply under section
    16 of the Act: at para. 18.

[73]

Dr. Barkers submissions made only minimal reference to the provisions
    of s. 14. She focused her representations on the fact that KPMG prepared its report
    on the clear understanding that it would be confidential and not be made
    public. She further explained that she gave an interview and shared personal
    information with KPMG  which was included in the Report  as a result of that
    specific assurance. She submits that she otherwise would not have participated
    in the process.

[74]

Dr. Barker also explained that a significant amount of information
    regarding the employment of Mr. Rootenberg had already been made public and
    that the availability of this information adequately addressed, or at least
    attenuated, any public interest considerations in the release of the Report.
    Additionally,
Dr. Barker made extensive submissions concerning the
    potential application of s. 8(2)(c) of the Act,
[1]

raising concerns about the possible impact on APHs interests and
    the possibility of exposure to civil liability if the Report was made public.
    These considerations weighed against disclosure. The submissions on s. 8(2)(c)
    were not repeated on appeal.

[75]

Dr. Barker made no submissions as to what parts of the KPMG Report
    contained personal information or which provisions in s. 14 operated to protect
    that information from disclosure. Her submissions simply cited the general
    purpose of s. 14: to ensure that personal information is protected. The
    submissions focused on the s. 16 considerations: what constitutes a compelling
    public interest and how the fact that other information is already in the
    public domain operates to satisfy the public interest, or at least make it less
    compelling.

[76]

Dr. Barker obviously saw no need to identify or list the parts of the Report
    she believed contain personal information, nor to explain or discuss the specific
    provisions within s. 14 that provide protection from disclosure. In that
    regard, she made the important point that the personal information she provided
    and that is contained in the Report was given on the clear understanding and
    undertaking that the Report would remain confidential.

[77]

With that context in mind, I turn now to address whether the failure to
    identify and weigh each individual piece of protected personal information
    undermined the reasonableness of the Commissioners decision.

(iii)

Reasonableness of Commissioners Decision

[78]

As I have explained, the Divisional Court took issue with the
    sufficiency of the Commissioners reasons, given its view of the nature of the statutory
    exercise. For ease of reference, I repeat para. 44, where the court explained
    its view on the matter:

The determination of what portions
    of the Report fall within the s. 14 exemption is not a simple matter. The
    statutory regime under MFIPPA requires that the decision-maker apply a series
    of statutory provisions that serve to include and exclude information at each
    step, and then balance the information that is exempted against the public
    interest under s. 16.
This must be done for each piece of personal
    information in the Report
. [Emphasis added.]

[79]

The
Commissioner takes issue with this piece-by-piece approach. On this
    appeal, the Commissioner submits that, in applying s. 16, there is one
    weighing, one decision: whether a compelling public interest clearly outweighs
    the purpose of the exemption, that is, the protection of personal privacy.
    There is no need, in the Commissioners view, to carry out a separate analysis
    with respect to each piece of personal information, nor is there a need to
    consider the impact or harm that the release of the information may have on the
    person whose personal information it is at the s. 16 stage. Once a
    determination is made that personal information is exempt from disclosure under
    s. 14, there is no need to consider the s. 14 factors any further.

[80]

Dr. Barker takes a very different view of how s. 16 is to be applied.
    She argues that the series of statutory provisions in s. 14 are applied to
    determine whether personal information is protected under the Act. If personal
    information is protected and s. 16 is invoked, then the same s. 14 provisions
    are reviewed a second time and a determination is made whether the s. 16
    override applies to each piece of personal information. It is only through a
    consideration of the various factors in s. 14 applying to each piece of
    personal information that a determination can be made of the importance of the
    personal privacy interest being protected. After that assessment, it is
    possible to determine the appropriate weight to be given to the privacy
    interests and a decision can be made as to whether the public interest in
    disclosure of each piece of personal information clearly outweighs the
    purpose of the exemption.

[81]

In effect, Dr. Barker argues that what is required is a combined s. 14
    and s. 16 analysis of each piece of personal information, with the public
    interest consideration becoming an additional factor in the list of factors set
    out in s. 14 for, or against, disclosure. In Dr. Barkers submission, the
    reasons of the Commissioner must demonstrate that this point-by-point
    assessment has been carried out and allow the reviewing court to assess the
    reasonableness of the decision to disclose or not disclose each piece of
    personal information.

[82]

In my view, the role of this court is not to determine which approach
    is correct, but rather to consider whether the decision of the Commissioner,
    who has expertise in the interpretation and application of MFIPPA, was
    reasonable in the circumstances of this case.

[83]

As I have explained, there was no dispute that the KPMG Report
    contained personal information and that it was exempt from disclosure under s.
    14. The Commissioner nonetheless addressed those issues, albeit not in the
    level of detail that the Divisional Court would have preferred.

[84]

The Commissioner noted that substantial parts of the Report consist of Dr.
    Barkers personal information, as defined in s. 2(1) of the Act. In particular,
    he observed that substantial portions of the Report contained KPMGs opinion of
    Dr. Barker and of another individual, such that the information fell within s.
    2(1)(g) of the Act. He also observed that Dr. Barkers name appeared alongside
    other personal information within the meaning of s. 2(1)(h). Additionally, he
    found that certain portions of the Report contained information relating to Dr.
    Barker that fell within the scope of subsections (a) and (b) of s. 2(1).

[85]

The Commissioner considered whether the disclosure of the personal
    information he had identified would constitute an unjustified invasion of
    personal privacy. After reviewing how the section operates and noting that
    neither APH nor Dr. Barker had made submissions on the applicability of the
    various factors listed in s. 14(2), the Commissioner singled out two of the s.
    14(2) factors as being relevant:

·

Dr. Barkers personal information contained in the
    record was highly sensitive (s. 14(2)(f)); and

·

Dr. Barker supplied the personal information in
    confidence (s. 14(2)(h)).

[86]

The Commissioner concluded, on the s. 14 question, that disclosure of
    the information would constitute an unjustified invasion of privacy:

Having reviewed the Report and the nature of the
    personal information it contains, I find that the majority of the personal
    information is highly sensitive, as contemplated by section 14(2)(f). In
    addition, based on my review of the Report and the circumstances within which
    it was prepared, I am satisfied that some of the information was supplied with
    the reasonable expectation that the information would be treated confidentially,
    as required for the factor at section 14(2)(h) to apply.

Neither APH nor the
    requester have provided representations on any factors which may weigh against
    a finding that disclosure of the personal information in the Report would
    constitute an unjustified invasion of privacy. Given the highly sensitive
    nature of the personal information in the record, and the confidential manner
    in which it was supplied, I find that disclosure of the information would
    constitute an unjustified invasion of privacy of the two individuals named
    therein, pursuant to section 14(1) subject to my review of the public interest
    override below: at paras. 35-36. [footnote omitted.]

[87]

Thus, it is apparent that the Commissioner carefully reviewed the
    record and that he identified the personal information contained in the KPMG
    Report. He focused, in his reasons, on the subsections of s. 2(1) that were
    most relevant in identifying the portions of the Report where Dr. Barkers
    personal information appeared.

[88]

He also identified the critical s. 14 provisions that protected this information
    from release. (Below, I will address Dr. Barkers argument that he erred in
    failing to advert to s. 14(2)(e), (g) and (i).) He understood the nature and
    significance to Dr. Barker of the personal information whose release was being
    sought. He would also have understood the importance of respecting the
    assurance of confidentiality, as Dr. Barker and others would understandably be
    reluctant to cooperate with the type of investigation undertaken by KPMG
    without it. His treatment of s. 14 was responsive to the submissions of the
    parties.

[89]

The Commissioner determined that, although s. 14 applied to protect the
    personal information from disclosure, the s. 16 public interest override
    applied to all of the personal information. Accordingly, he saw no need to set
    out in his reasons exactly which portions of the Report constituted personal
    information. As he noted in his reconsideration decision, his decision not to
    describe the portions of the record which contain personal information should
    not be confused for a lack of consideration of which portions of the record
    contain personal information: at p. 5.

[90]

On my reading of his reasons, the Commissioner did not approach his
    statutory task in the manner advocated by his counsel on appeal. As I have
    noted, counsel for the Commissioner submitted that, in considering whether s.
    16 override should apply, there is no need to consider the impact or harm that
    the release of protected personal information may have on the person whose
    personal information it is. However, the Commissioners reasons demonstrate he
    considered the different privacy interests at play and the s. 14 factors that
    supported his finding that the disclosure of the personal information would
    constitute an unjustified invasion of privacy. In other words, he was alive to
    the impact the release of the protected personal information could have on Dr.
    Barker when he engaged in the s. 16 balancing.

[91]

In my view, the Commissioners approach was reasonable. I do not accept
    that, in the circumstances, the failure to identify each piece of protected
    information or to balance each piece of protected information separately
    undermined the reasonableness of the Commissioners decision. In this regard, I
    disagree with the Divisional Court that without a piece-by-piece analysis, one
    could not know what the Commissioner was weighing as against the public
    interest: at para. 68.

[92]

While a piece-by-piece analysis may well be required in some circumstances,
    in other cases, such as this one, a piece-by-piece analysis in the reasons is
    not required. In this case, it is the story told when the whole of the
    protected information is disclosed that sheds light on the operations of APH
    and, more specifically, whether a conflict of interest existed in the hiring of
    the former interim CFO and whether APH suffered any losses as a result of his
    hiring. Viewed individually, each piece of protected information reveals little
    of the underlying story and, on its own, holds little public interest, let
    alone a compelling public interest in disclosure that would outweigh the s. 14
    protection. The public interest in disclosure is of the information as a whole
    and it is when this interest is weighed against the purpose of the s. 14
    protections at issue that the s. 14 protection must yield.

[93]

This is not to say that each case must be treated in the same way for
    the decision to satisfy the reasonableness standard. There may be more than one
    compelling public interest at play and there may be different parts or aspects
    of a record raising very different, separate, and important personal privacy
    interests. This may require assigning a different weight to different parts of
    a record sought to be disclosed in the balancing.

[94]

There may also be elements of personal information so sensitive or
    whose disclosure is so damaging that they need to be redacted before the public
    interest in disclosure of the record will clearly outweigh the purpose of the s.
    14 privacy interest. Similarly, there may be elements of personal information that
    are unrelated to the public interest at play and whose redaction should
    therefore be made despite the s. 16 override.

[95]

The exercise is therefore a nuanced and contextual one, requiring a
    weighing and balancing of interests. This weighing and balancing under s. 16 is
    a task that the legislature has entrusted to the Commissioner. The application
    and interpretation of s. 16 are at the heart of the Commissioners specialized
    expertise, and he is in the best position to make these determinations:
Ontario
    Hydro v. Mitchinson
, [1996] O.J. No.
    4636 (Div. Ct.),
at para. 1, leave to appeal refused, [1997] O.J.
    No. 694 (C.A.); see also
Higgins
,
    at para. 2
.

[96]

In conclusion, I am not satisfied that the failure to identify and
    separately weigh each piece of personal information protected by s. 14
    undermined the reasonableness of the Commissioners decision. I would also note
    that I do not agree with the Divisional Courts observation that the
    Commissioner refused to disclose the portions of the record protected under s. 14.

[97]

I now turn to Dr. Barkers other reasons for arguing that the
    Commissioners decision to order release of the KPMG Report was unreasonable.

(b)

Weight Assigned to the Purpose of s. 14

[98]

Dr. Barker argues that the Commissioners decision was unreasonable
    because he failed to refer to ss. 14(2)(e), (g), and (i) in his reasons. These provisions
    read as follows:

14(2) A head, in determining whether a disclosure of personal
    information constitutes an unjustified invasion of personal privacy, shall
    consider all the relevant circumstances, including whether,



(e) the individual to whom the information relates will be
    exposed unfairly to pecuniary or other harm;

.

(g) the personal information is unlikely to be accurate or
    reliable;



(i) the disclosure may unfairly
    damage the reputation of any person referred to in the record.

[99]

In Dr. Barkers submission, the absence of any reference to those
    provisions in the Commissioners reasons suggests that he failed to undertake a
    proper analysis of the relevant s. 14(2) factors and gave inadequate weight to
    the purpose of the s. 14 exemption.

[100]

I
    disagree.

[101]

At
    the outset, it is important to recall that Dr. Barker made no reference to these
    subsections in her submissions to the Commissioner.

[102]

Despite
    her failure to specifically rely on those provisions, it is apparent from a
    reading of the Commissioners reasons that he was alive to legitimate concerns
    raised by s. 14(2)(e), the possibility of unfair pecuniary or other harm, and s.
    14(2)(i), the possibility of unfair damage to her reputation.

[103]

With
    respect to pecuniary harm, Dr. Barker made submissions relating to possible
    pecuniary harm to herself and to APH, not on the basis of s. 14(2)(e) but
    rather in support of her submission that disclosure ought to be refused
    pursuant to s. 8(2)(c) of the Act. This section provides that a head may refuse
    to disclose a record that is a law enforcement record if the disclosure could
    reasonably be expected to expose the author of the record or any person who has
    been quoted or paraphrased in the record to civil liability.

[104]

The
    Commissioner responded to this concern, explaining that he did not accept Dr.
    Barkers submission that s. 8(2)(c) applied. He went on, however, to indicate
    that [his] consideration of the application of section 14 will address [Dr.
    Barkers] interests. In other words, the concern that there might be pecuniary
    harm due to potential civil liability was taken into account by the
    Commissioner in his s. 14 analysis. The failure to specifically cite that
    concern or to make specific reference to potential s. 14(2)(e) harm does not,
    in my view, render the Commissioners decision unreasonable.

[105]

As
    for the concern about the damage to Dr. Barkers reputation, this concern was,
    in a very real sense, addressed by the Commissioners acknowledgement that the
    information was highly sensitive. The Commissioner described highly sensitive
    information as information that, if released, would give rise to a reasonable
    expectation of significant personal distress. Having read the unredacted
    version of the KPMG Report, it is clear to me that the Commissioner found much
    of the personal information sensitive because of its potential impact on Dr.
    Barkers reputation. Although reputation is not specifically mentioned, it was,
    in my view, encompassed within the concern identified by the Commissioner.

[106]

Finally,
    I do not fault the Commissioner for not referring to s. 14(2)(g). Although Dr.
    Barker had pointed out that the Report contains a number of errors and
    inaccuracies in her submissions to APH, she added that they would be
    addressed, if considered appropriate, directly with KPMG. In her submissions
    to the Commissioner on her appeal, Dr. Barker did not raise any concern as to
    the accuracy of the information in the KPMG Report. It was only in her
    submissions in support of her reconsideration request that concerns over
    accuracy were raised. In these circumstances, there was no reason for the
    Commissioner to refer to s. 14(2)(g) in his decision on the appeal.

[107]

Further,
    I would note that it was open to Dr. Barker to take steps to address the
    alleged inaccuracies. As she herself noted in her submissions to APH, she had the
    option of addressing the matter with KPMG, although there is no suggestion that
    she has done so. The Act also provides options for addressing alleged
    inaccuracies in personal information. For example, under s. 36(2), it is
    possible to request a correction or
require that a
    statement of disagreement be attached to the record, reflecting any correction
    that was requested but not made.

(c)

Weight Assigned to Public Interest in Disclosure

[108]

In
    her representations to the Commissioner on the compelling public interest in
    disclosure of the KPMG Report, Dr. Barker argued that adequate information
    regarding Mr. Rootenbergs employment with APH was already in the public
    domain, which reduced the public interest in disclosing the Report. In
    particular, she referenced the Scott Report, a report commissioned by the
    Ministry of Health and Long-Term Care that addressed issues that overlap with
    those addressed by the KPMG Report.

[109]

On
    the reconsideration request, Dr. Barker submitted that the Commissioner, in his
    original decision, had given undue weight to APHs assessment of the compelling
    public interest in disclosure.

[110]

I
    do not accept these submissions, as the Commissioner adequately addressed these
    concerns.

[111]

The
    Commissioner took into account the fact that the Scott Report had been made
    public. He found that the KPMG Report contained new information:

[T]here is
    substantial information contained within the record which does not appear in
    the public version of the Scott Report, particularly in relation to whether a
    conflict of interest existed in relation to the interim CFOs appointment. I
    also find that [Dr. Barkers] personal information is essential to the
    determination of whether a conflict of interest existed. Both of these factors
    point to the existence of a compelling public interest in disclosure: at para.
    58.

There is no basis to interfere with the
    Commissioner on this point, as it is not for this court to second-guess the
    Commissioners findings or to reweigh particular factors.

[112]

Nor
    am I convinced that it was unreasonable for the Commissioner to take into
    account APHs assessment of the public interest in disclosure and give it the
    weight he did. As he explained:

[APH] is in a strong position to
    assess whether there is a compelling public interest in disclosure, given its
    familiarity with the issues considered in the Report, its knowledge of the
    local community and the fact that it sought and received the views of the
    affected parties prior to making its decision: at para. 57.

[113]

While
    it was open to the Commissioner to make that assessment, I would add the
    following. In light of the exceptional nature of the s. 16 override, the
    Commissioner should, in my view, be alive to the possible benefit of disclosure
    to the record holder when he relies on the record holders own assessment of
    whether disclosure is warranted under s. 16. In this case, for instance, one
    could imagine that APH, which had commissioned the Report and agreed that it
    remain confidential, may consider it beneficial if the Report were to be
    disclosed, as it could possibly shift some of the public attention away from
    the problems raised in the Scott Report about the functioning of APHs board. This
    point was not expressly raised before the Commissioner, although the
    Commissioner noted in his reasons that APH did say it had been urged to
    disclose the Report to establish public confidence in APH: at para. 41.

[114]

In
    considering the weight to be assigned to the compelling public interest in
    disclosure, the Commissioner noted that he had considered Dr. Barkers
    submissions in support of a public interest in non-disclosure. Dr. Barker
    argued that disclosure of an employees personal information would make
    recruitment of a new CFO more difficult. The Commissioner was not persuaded by this
    submission. He explained that the information concerning a possible conflict of
    interest and possible financial loss or misappropriation was inextricably tied
    to the responsibilities generally carried out by officers of public bodies, and
    for which officers are accountable to their respective board or governing body:
    at para. 59.

(d)

Failure to Redact Portions of the Personal Information

[115]

The
    final point to address is the argument that, even if there was a compelling
    public interest in the release of the Report and the public interest clearly
    outweighed the purpose of the s. 14 exemptions, the Commissioner, after
    reaching this conclusion, ought to have then gone through the Report to
    identify any protected personal information that was not responsive to the
    public interest and that could be redacted. Any elements of personal
    information contained in the Report that the public had little or no need to
    know could be removed before disclosure.

[116]

The
    Commissioner adequately addressed this issue. After concluding that the record
    should be released, he specifically indicated that he had considered whether
    any portions of the record ought to be withheld: at para. 70. In her
    submissions, Dr. Barker has not pointed to any personal information that,
    despite the finding that s. 16 applied, should nonetheless have been redacted.
    The Commissioners conclusion that the whole Report had to be released is
    entitled to deference, and I see no basis to interfere with this assessment.

(e)

Conclusion on the Appeal Decision

[117]

It
    was never seriously disputed that the public had an interest in knowing the
    circumstances surrounding Mr. Rootenbergs hiring and whether APH suffered
    losses as a result. The Commissioner accepted APHs submission that disclosure
    of the report would inform the citizenry about the activities of the
    institution during a time when its integrity was in question: at para. 56.

[118]

As
    I have explained, it is also apparent that the Commissioner fully understood
    the s. 14 privacy interests of Dr. Barker at play, including the fact that the
    personal information was highly sensitive and that much of it had been
    provided only after Dr. Barker had received an assurance of confidentiality. As
    noted by the Commissioner, Dr. Barker was a senior public official who was
    accountable to the community, the APH board and the Ministry of Health and
    Long-Term Care. Disclosing the KPMG report absent Dr. Barkers personal
    information would not be responsive to the public interest he found to be
    compelling. This personal information was essential to the determination of
    whether a conflict of interest existed.

[119]

Ultimately,
    the weight to be assigned to the important competing interests outlined in the
    Act is at the heart of the Commissioners role. The Commissioners conclusion
    that Dr. Barkers privacy interests should yield, as they were clearly
    outweighed by the compelling public interest in disclosure, is reasonable. It
    fell within the range of acceptable outcomes and is thus entitled to deference.

(4)

RECONSIDERATION REQUEST

[120]

Finally,
    I briefly address the reconsideration decision, which the Divisional Court
    quashed for the same reason it quashed the Commissioners initial decision.

[121]

In
    this case, Dr. Barkers reconsideration submissions were much more extensive
    than the submissions she made to the Commissioner prior to his original
    decision. In her reconsideration submissions, Dr. Barker, for the first time,
    argued that:

1. The Commissioner ought to have explicitly
    identified each portion of the KPMG Report that constituted personal
    information. Absent such an explicit identification, it was, in Dr. Barkers
    submission, impossible to determine whether the public interest override
    applied to each of these individual pieces of information.

2. The Commissioner only considered factors in
    subsections 14(2)(f) and (h) and he ought to have also considered factors in
    subsections 14(2)(e), (g), and (i), as well as the presumptions in s. 14(3) in
    his analysis.

3. The Commissioner should have taken into
    account the fact that this was the first appeal in which the institution itself
    claimed that the s. 16 public interest override applied.

4. The Commissioner ought to have appointed a
    mediator rather than go directly to rendering a decision.

[122]

Dr.
    Barker also raised concerns with aspects of the Commissioners reasons. She
    maintained that the Commissions analysis of s. 14(2)(h) was not fulsome, and that
    the Commissioner ought not to have treated APHs decision to disclose the Report
    pursuant to the public interest override as an important consideration.
    Finally, Dr. Barker argued that the Commissioner erred in his approach to the
    issue of public interest. Based on the information that had already been made
    public and the public interest in non-disclosure, the Commissioner should have
    concluded that there was no compelling public interest in the release of Dr. Barkers
    protected personal information and that the release of the information was not
    truly responsive to the information being sought by the requester.

[123]

I
    have already addressed most of these concerns in my reasons for concluding that
    the Commissioners original decision was reasonable and ought not to have been
    set aside. In this portion of my reasons, I consider only the reasonableness of
    the Commissioners decision not to reconsider.

[124]

Under the
    Commissioners Code of Procedure

for appeals under the
Freedom of
    Information and Protection of Privacy
Act
    and the
Municipal Freedom of Information and Protection of
    Privacy Act
(the Code of Procedure),
    the grounds for reconsideration are limited. The Commissioner may reconsider a
    decision if one of three circumstances is made out:

18.01 The IPC may reconsider an order or other decision where
    it is established that there is:

(a) a fundamental defect in the adjudication
    process;

(b) some other jurisdictional defect in the
    decision; or

(c) a clerical
    error, accidental error or omission or other similar error in the decision.

[125]

New
    evidence is not a sufficient basis for reconsideration:

18.02 The IPC will
    not reconsider a decision simply on the basis that new evidence is provided,
    whether or not that evidence was available at the time of the decision.

[126]

In
    this case, the Divisional Court quashed the Commissioners decision not to
    reconsider because it did not correct the defect it had identified in the Commissioners
    original decision, namely the inadequacy of the reasons. As I have determined
    that the Commissioners reasons in support of his original decision were
    adequate, there is not a valid reason to set aside the Commissioners
    reconsideration decision.

[127]

I
    note at the outset that the decision whether or not to grant a reconsideration
    request is discretionary and is thus entitled to deference. In my view, the
    Commissioners reasons show that he exercised his discretion in accordance with
    ss. 18.01 and 18.02 of the Code of Procedure. He noted that the reconsideration
    request contained several new arguments and new supporting documentation, which
    was not a basis for reconsideration.

[128]

On
    the central issue of whether he erred in failing to explicitly identify the
    portion of the KPMG Report containing Dr. Barkers personal information as well
    as the applicable ss. 14(2), (3), and (4) provisions, the Commissioner
    responded that the information he had included in his reasons was aligned with
    the position advanced by [Dr. Barkers] former counsel: at p. 5. In their
    original submissions, neither party had disputed or questioned the fact that
    the Report contained personal information and that disclosure of that personal
    information would constitute an unjustified invasion of privacy pursuant to s.
    14(1). It is for this reason that the Commissioner concluded as follows:

Once this office has
    made a determination that disclosure of the personal information at issue would
    constitute an unjustified invasion of privacy, this office is not required to
    engage in an exhaustive written analysis of every possible factor or
    presumption that may also apply to protect the privacy of personal information.
    As I determined that the factors at sections 14(2)(f) and (h) apply to the
    personal information in the Report, it was not necessary to then discuss every
    other possible factor or presumption that could also apply in favour of the
    same outcome, particularly in the absence of representations on the
    applicability of other factors or presumptions.

[129]

As
    the Commissioners reasons explain, the concerns raised by Dr. Barker on the
    reconsideration do not demonstrate a fundamental defect in the adjudication
    process, or some jurisdictional defect in the decision, in relation to [the]
    analysis of the mandatory exemption at section 14(1): at p. 6. There is
    therefore no reason to interfere with the Commissioners reconsideration decision.

D.

CONCLUSION

[130]

For
    these reasons, I would allow the appeal and set aside the Divisional Courts
    decision quashing the Commissioners decisions. The Commissioner does not seek
    costs. As a result, I would make no order as to costs.

Released: April 9, 2019

PR

Paul Rouleau J.A.

I agree K. van
    Rensburg J.A.

I agree L.B. Roberts
    J.A.





[1]

Section
    8(2)(c) provides that a head may refuse to disclose a record 
that is a law
    enforcement record if the disclosure could reasonably be expected to expose the
    author of the record or any person who has been quoted or paraphrased in the
    record to civil liability.


