



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Community and Social Services) v. John Doe, 2015 ONCA 107

DATE: 20150217

DOCKET: C59060 & C59062

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

C59060

Ministry of Community and Social Services

Appellant

and

John
    Doe, Requester, Affected Party,

Ontario
    Public Service Employees Union, and

Information
    and Privacy Commissioner

Respondents

AND BETWEEN

C59062

Ministry of Community and Social Services

Respondent

and

Ontario Public Service Employees Union

Appellant

and

John
    Doe, Requester, Affected Party, and

Information
    and Privacy Commissioner of Ontario

Respondents

Lise Favreau and Erin Rizok, for the Ministry of
    Community and Social Services

David R. Wright and Jane Letton, for the Ontario Public
    Service Employees Union

Lawren Murray, for the Information and Privacy
    Commissioner of Ontario

Heard: January 20, 2015

On appeal from the judgment of the Divisional Court
    (Justices Harriet E. Sachs, Herman J. Wilton-Siegel and Mary Jo Nolan), dated
    February 24, 2014.

Hoy A.C.J.O.:

[1]

The appellants, the Ministry of Community and Social Services (the
    Ministry) and the Ontario Public Service Employees Union (OPSEU), appeal
    the order of the Divisional Court, dismissing their application for an order
    setting aside Order PO-2917 (the Order) made by Adjudicator Steven Faughnan
    of the Information and Privacy Commissioner of Ontario (the Commissioner)
    under the
Freedom of Information and Protection of Privacy Act,
R.S.O.
    1990, c. F.31 (the Act).

[2]

The Order requires the Ministry to disclose records that include the
    full names of some employees of its Family Responsibility Office (FRO) to an
    individual (the Requester) who had requested personal information about himself
    in FROs files pursuant to s. 47(1)
[1]
of the Act. That section provides an individual with a right of access to his
    or her own personal information held by the government.

[3]

For the reasons below, I would dismiss this appeal.

Overview

[4]

FROs employees are responsible for enforcing court orders providing for
    the payment of child support and spousal support in the context of family law
    proceedings. These employees have direct contact with sometimes volatile
    support payors and payment recipients. The Requester was a support payor. He
    alleged that FRO had mismanaged his file and sought to discover the cause of
    the mismanagement. He did not appear on the application to the Divisional Court
    for judicial review or on this appeal. OPSEU is the bargaining unit that
    represents the FRO employees.

[5]

The documents sought by the Requester are all records in [his] FRO file
    from the beginning, and include court documents, letters between FRO staff and
    the Requester or his lawyer, and internal FRO records. Some FRO employees
    names appear in some of these documents.

[6]

Under the Act, the minister (the Minister) who presides over the
    Ministry was entitled to refuse to disclose the records sought by the Requester
    if the disclosure could reasonably be expected to endanger the life or physical
    safety (s. 14(1)(e)
[2]
)
    or seriously threaten the safety or health (s. 20
[3]
)
    of FRO employees. The Minister relied on this provision in releasing certain
    records with the names of FRO employees redacted. The Commissioner concluded
    that the Minister was not entitled to redact the names of the FRO employees
    under these provisions.

[7]

The appellants argue the Divisional Court incorrectly concluded that the
    Order was reasonable. They renew the arguments they made to the Divisional
    Court. The appellants say the Commissioners conclusion was unreasonable for
    two principal reasons.

[8]

First, the appellants submit the Commissioner acted unreasonably in
    refusing to accept the appellants evidence as sufficient evidence that
    disclosure could reasonably be expected to endanger the life or physical safety
    or seriously threaten the safety or health of the FRO employees.

[9]

The appellants evidence included the order of the Grievance Settlement
    Board (the GSB Order) issued on the consent of The Crown in Right of Ontario
    (Ministry of the Attorney General) (MAG)
[4]
and OPSEU in November of 2000 to reflect their without prejudice and
    precedent settlement of grievances filed by FRO employees. The grieving
    employees alleged that the Ministrys then-existing policy that they identify
    themselves to the public by their full names violated the provisions of the
    collective agreement requiring the employer to take reasonable measures for the
    protection of employee health and safety. As a result of the settlement and the
    GSB Order, FRO employees are permitted, but not required, to identify
    themselves to the public by first name and employee identification number only.
    According to the appellants, the fact that MAG and OPSEU agreed on the need for
    protection of employees from the disclosure of their full names is evidence of
    the existence of a reasonable risk of harm if full names are disclosed.

[10]

The
    appellants evidence also showed that between 2002 and 2006 there were 24
    documented threats made to FRO staff generally or to individual FRO employees. Those
    threats included FRO clients saying: they would bring a fucking bomb down
    there; they would strap a bomb to self and teach court a lesson; are you
    afraid of being shot in the head; and if you dont reinstate my drivers
    licence Columbine in there. Further, OPSEU represented that its members have
    reported that FRO clients who somehow obtained the names of FRO employees have
    used the information to make unsolicited contact with the employees in their
    homes.

[11]

Second,
    the appellants submit the Commissioner failed to consider that the Act does not
    impose any constraints on the use of records following their disclosure and the
    Requester could broadly disseminate the names of the FRO employees after
    obtaining the information. Instead, they argue, the Commissioner only
    considered whether the Requester
himself
could reasonably be expected
    to endanger the life or physical safety or seriously threaten the safety or
    health of the FRO employees. The appellants contend that disclosure to an
    individual under s. 47(1) of the Act should be considered disclosure to the
    world, and as such that the generalized risk to FRO employees as a result of
    disclosure should be considered.

[12]

The
    appellants also argue the Divisional Court erred in concluding that the Order and
    the GSB Order are not in operational conflict. According to the appellants, the
    two orders are in direct operational conflict and the GSB Order, which is about
    the health and safety of FRO employees, should take precedence.

[13]

Below,
    I address the arguments advanced by the appellants.

Was the Order reasonable?

The Order

[14]

The
    Commissioner referred to the evidence that between 2002 and 2006 there had been
    24 documented threats against FRO employees by FRO clients. He also considered
    the GSB Order, which OPSEU argued was proof of acknowledged risk to the health
    and safety of FRO employees associated with the disclosure of employees names.
    He noted OPSEUs evidence that, in relation to threats, it was aware of more
    frequent verbal abuse directed towards FRO staff especially over the course of
    telephone conversations with clients.

[15]

The
    Commissioner noted there was no indication that the Requester had uttered any
    threats to FRO employees and there was nothing in the records to indicate that
    the Requester posed any type of threat of any kind to FRO employees. Indeed, [t]here
    is, in fact, a clear recognition that he does not.

[16]

He
    also noted there was no evidence that FRO employees whose names were in the
    requested records had been subject to any kind of threat or endangerment. The
    Commissioner concluded there was also no evidence that the FRO employees job
    function required anonymity; the situation was different from that in
Duncanson
    v. Toronto (Metropolitan) Police Services Board
(1999), 124 O.A.C. 170
    (Div. Ct.). In that case, disclosure of the names of all police officers employed
    by the police was sought. The Divisional Court held that disclosure of all the
    names should not be provided. Such disclosure would include the names of
    officers working undercover or in plain clothes assignment, where anonymity was
    critical. Here, the FRO employees job assignment did not require that they
    remain anonymous.

[17]

The
    Commissioner considered the evidence in light of
Ontario
(
Information
    and Privacy Commissioner, Inquiry Officer) v. Ontario (Ministry of Labour,
    Office of the Worker Advisor
) (1999), 46 O.R. (3d) 395 (C.A.): the
    institution must demonstrate that the reasons for resisting disclosure are not
    frivolous or exaggerated. However, while the expectation of harm must be
    reasonable, it need not be probable: see
Ontario (Ministry of Labour)
,
    at para. 25.

[18]

The
    Commissioner concluded that the Ministry had not met this evidentiary
    threshold.

The Divisional Courts reasons

[19]

In
    response to the appellants argument that the Commissioner failed to consider
    that, in this digital age, disclosure to the Requester would amount to
    disclosure to the world, the Divisional Court wrote, at para. 52, that the
    scheme of the Act:

requires demonstration that disclosure of the requested
    information to the particular requester would pose a risk to the health or
    safety of the identified individuals by the requester, rather than by the
    public at large, before the exemptions in ss. 14 or 20 can be relied upon. This
    result flows from the fact that disclosure to the requester is not presumed to
    be disclosure to the public.

[20]

While
    the GSB Order amounted to some evidence of health and safety concerns
    associated with disclosing FRO employees names to the public in the past,
    there was no evidence that complying with the Requesters disclosure request
    posed a health and safety threat to the employees whose names were in the
    records requested. The Divisional Court explained, at para. 54:

First of all, as the [Commissioner] noted, there was no
    evidence that this Requester had engaged in threatening or violent behaviour.
    Second, there was no evidence that any of the employees whose names were going
    to be disclosed had ever been the subject of any threats by the Requester or
    anyone else. Third, there was nothing potentially inflammatory in the records
    themselves. Fourth, as mentioned, the evidence that other employees had been
    threatened in the past is not relevant to a request under s. 47(1)(b), which
    requires a consideration of the risk presented by disclosure to the requester.
    Moreover, to the extent that such evidence can be considered, it is
    insufficient to allow someone to do anything more than speculate that
    disclosing the Requesters records would pose a health and safety risk to the
    employees whose full names were in those records.

[21]

At
    para. 55, the Divisional Court noted that
Duncanson
is not authority
    for the proposition that demonstration of a generalized risk is sufficient in
    all cases. The Court in
Duncanson
recognized that whether generalized
    risk is sufficient is dependent on the facts of each case.

[22]

Further,
    the GSB Order, properly interpreted, was not intended to override the
    provisions of the Act. (I summarize the Divisional Courts reasons for so
    concluding below, in considering the appellants argument that the Order
    conflicts with the GSB Order.)

[23]

The
    Divisional Court concluded the Order was reasonable.

Analysis

[24]

I
    agree with the Divisional Court that the Order is reasonable. The Order falls
    within a range of reasonable administrative choices:
New Brunswick (Board
    of Management) v. Dunsmuir
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 153.
    And I agree almost entirely with the Divisional Courts reasoning.

[25]

The
    Commissioner considered all of the evidence, including the GSB Order, in
    concluding that the Ministry had not satisfied its evidentiary burden. Since
    the Commissioner and the Divisional Court rendered their decisions, the Supreme
    Court has clarified what is meant by could reasonably be expected to where
    that phrase appears in the Act, including in ss. 14(1)(e) and 20: see
Ontario
    (Community Safety and Correctional Services) v. Ontario (Information and
    Privacy Commissioner),
2014 SCC 31, [2014] 1 S.C.R. 674, at para. 54. The
    Court held in
Ontario (Community Safety and Correctional Services)
that
    the could reasonably be expected to standard provides a middle ground
    between that which is probable and that which is merely possible: para. 54. It
    went on to write, at para. 54:

An institution must provide evidence well beyond or
    considerably above a mere possibility of harm in order to reach that middle
    ground. [Citations omitted.]

[26]

The
    Commissioners analysis of the evidence accords with this formulation.

[27]

While
    any threat to an employee is of concern, the evidence before the Commissioner
    was that in the period between 2002 and 2006 during which FRO employees
    received 24 documented threats, FRO employees would have handled an estimated
    2.988 million calls. It was accepted that the Requester himself posed no threat
    to FRO employees. As to the risk arising if the Requester disseminated the
    names of FRO employees disclosed in the records, as the Commissioner and
    Divisional Court both noted, there was no evidence that the FRO employees whose
    names were going to be disclosed had ever been the subject of threats by the
    Requester or anyone else. Further, the Requester had the names of at least
    seven employees and had not disseminated that information. And, as the
    Divisional Court noted, there was nothing inflammatory in the records that
    suggested the behaviour of the Requester would change after reviewing the
    records sought.

[28]

The
    appellants cite a number of orders of the Commissioner that they say support
    their argument that disclosure to a requester under s. 47(1) of the Act should
    in all cases be treated as disclosure to the world. In my view, none of the
    orders cited by the appellants presumptively accord this factor the weight the
    appellants argue for. Order PO-3133, [2012] O.I.P.C. No. 232 comes nearest to
    doing so. There, the Commissioner acknowledged the possible consequences of
    disclosure, but concluded that the risk of broader dissemination should not be
    given much weight in the circumstances.
[5]
At para. 81, the Commissioner wrote:

I am not persuaded that disclosure under the Act is disclosure
    to the world is a factor that should be given much weight in the circumstances
    of this appeal. This factor is implicit in any access decision made under the
    Act. In my view, the Legislature tacitly acknowledges the possible consequences
    of disclosure.

[29]

I
    reject the appellants argument that the Commissioner did not consider the risk
    that the Requester might disseminate the names of the FRO employees in the
    records. The Commissioners observation that there was no evidence that FRO
    employees whose names were in the requested records had been subject to any
    kind of threat or endangerment and his consideration of
Duncanson
both
    clearly indicate that he was alive to the appellants submission. Essentially,
    the Commissioner did what the adjudicator in Order PO-3133 did: he considered
    the possible risk of broader dissemination and concluded that it was not a
    significant factor in the circumstances.

[30]

Nor
    in my view do the Divisional Courts reasons, properly read, indicate that the
    risk that an individual who requests information under s. 47(1) of the Act will
    disseminate that information is not a proper factor in assessing whether the
    disclosure to the requester could reasonably be expected to endanger the life
    or physical safety or seriously threaten the safety or health of a person or
    group of persons. To the extent they may be read otherwise, I disagree. In my
    view, the risk that a requester will share the information provided to him or
    her is a relevant factor, to be assessed with all of the other relevant
    factors, in determining whether or not the evidentiary threshold established by
    the Supreme Court in
Ontario (Community Safety and Correctional Services)
has
    been met.

And this, in my view, was what the Commissioner did.

[31]

Finally,
    while the appellants point out that the Requester did not provide an
    undertaking as to confidentiality, the Act does not require that a requester
    provide one and it is not clear to me that it had been suggested that he provide
    one. However, the provision of an undertaking as to confidentiality by an
    individual requesting access to information under s. 47(1) of the Act could be
    relevant in considering the weight to be given to the risk arising from broader
    dissemination in assessing the risk alleged under ss. 14 or 20 of the Act.

Does the Order conflict with the GSB Order?

[32]

Where
    it is impossible to comply with two administrative decisions because they are
    in direct operational conflict, the courts must determine which decision should
    take precedence: see
British Columbia Telephone Co. v. Shaw Cable Systems
    (B.C.) Ltd.,
[1995] 2 S.C.R. 739, at paras. 47, 53. The appellants argue
    that compliance with the Order would necessitate the violation of paragraph 4
    of the GSB Order.

[33]

As
    indicated above, the GSB Order was taken out on the consent of OPSEU and MAG,
    the FRO employees employer, to reflect a without prejudice and precedent
    settlement of grievances filed by FRO employees pertaining to the use of their
    full names in the course of their employment. Paragraph 1 of the GSB Order
    indicates that the Employer agrees to implement the new policy regarding the
    use of names by staff at FRO. The new policy is attached to the GSB Order as
    Appendix A.

[34]

The
    attached policy provides: employees may identify themselves on the telephone or
    on their voicemail by their first name and identification number only;
    documents prepared for use in court, such as affidavits, shall include the
    employees full name; in non-court documents, employees may generally identify
    themselves by their first name and identification number only; and where the
    Minister determines that the use of a full name is required, for non-court
    documents, employees will use their first name and ID number as well as the
    full name of their manager.

[35]

Paragraph
    4 of the GSB Order provides:

The Employer will inform all staff who may give out the names
    of FRO employees in response to inquiries form (
sic
) the public of the
    terms of the new policy provided by this settlement.
Anyone
    disclosing the name of another FRO bargaining unit employee will be required to
    use the persons 1
st
name and I.D. number only.
[Emphasis
    added.]

[36]

The
    appellants say that the word anyone includes the Minister, and paragraph 4
    therefore prohibits the Minister from releasing records containing the full
    names of FRO employees in response to a request for information under s. 47(1)
    of the Act.

[37]

The
    Divisional Court provided thorough and cogent reasons for its conclusion that
    the Order does not conflict with paragraph 4 of the GSB Order:

·

The words without prejudice and precedent signify that the GSB
    Order was meant to be confined to the specific circumstances giving rise to
    that order. (para. 57)

·

The policy provides FRO employees with a choice as to how they
    identify themselves to members of the public when they are dealing with the
    public over the telephone or in written correspondence (other than court
    documents). (para. 58)

·

Taken in context, paragraph 4 of the GSB Order applies to other
    staff who may be faced with inquiries from the public about the names of fellow
    staff members. This is clear from the first sentence, which deals with the need
    to inform all
staff
about the new policy, and the use of the word
    another in the second sentence. By virtue of this word anyone should be
    read as meaning anyone who is also a FRO bargaining unit employee. Accordingly,
    anyone does not extend to the Minister for this purpose. (para. 60)

·

There is no suggestion that when the GSB Order was made, the
    provisions of the Act and its important public policy goals were considered. [N]o
    inference can be drawn that the GSB Order was intended to override the
    provisions of the Act. (para. 64)

·

Under the Act, the request for information is made to the head of
    the institution  in this case, the Minister. Whether or not to apply an
    exemption under the Act requires an exercise of discretion by the Minister that
    cannot be fettered in advance. [T]he Minister cannot consent to an arrangement
    that would have the effect of contracting out of his or her obligations under
    the Act. (para. 65)

[38]

I
    agree with the Divisional Courts reasoning and conclusion. The Order does not
    necessitate violation of the GSB Order.

Disposition

[39]

I
    would accordingly dismiss this appeal. Costs were not sought and none are
    ordered.

Released: February 17, 2015 (A.H.)

Alexandra
    Hoy A.C.J.O.

I
    agree K. van Rensburg J.A.

I
    agree David Brown J.A.





[1]
Section 47(1) of the Act reads:

Right of access to
    personal information

s. 47(1) 
    Every individual has a right of access to,

(a) any
    personal information about the individual contained in a personal information
    bank in the custody or under the control of an institution; and

(b) any other
    personal information about the individual in the custody or under the control
    of an institution with respect to which the individual is able to provide
    sufficiently specific information to render it reasonably retrievable by the
    institution.



[2]
Section 14(1)(e) of the Act reads:

Law
    enforcement

14. (1) A head
    may refuse to disclose a record where the disclosure could reasonably be
    expected to,

[]

(e) endanger
    the life or physical safety of a law enforcement officer or any other person;

It is
    conceded that FRO employees constitute law enforcement officers.



[3]
Section 20 of the Act reads:

Danger to safety or health

20. A head may refuse to disclose
    a record where the disclosure could reasonably be expected to seriously
    threaten the safety or health of an individual.



[4]
While the Ministry is responsible for the operation of FRO, FRO employees are
    employees of MAG, not the Ministry.



[5]
In Order PO-3133, the parents of a young man who died in a boating accident at
    a party sought records disclosing the sons personal information (the details
    of his death) relying on the compassionate reasons limitation in s. 21(4)(d)
    of the Act. The adjudicator declined to disclose information that related
    solely to other individuals at the party or other witnesses that do not
    directly impinge on the circumstances of the deceaseds death: para. 87.


