


COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    (Finance) v. Ontario (Information and Privacy
    Commissioner), 2012 ONCA 125

DATE: 20120224

DOCKET: C54157

Rosenberg, Feldman JJ.A. and Swinton J. (
ad
    hoc
)

BETWEEN

Minister of Finance for the Province of Ontario

Applicant (Appellant)

and

Diane
    Smith, Adjudicator, Information and Privacy Commission/Ontario and John Doe, Requester

Respondents (Respondents in Appeal)

Sara Blake and Andrea Cole, for the appellant

William S. Challis, for the respondent Diane Smith,
    Adjudicator, Information and Privacy Commission of Ontario

Alex Cameron and Kevin Yip, for the respondent Requester,
    John Doe

Heard: January 18, 2012

On appeal from the order of the Divisional Court (Aston,
    Linhares de Sousa and Lederer JJ.), dated April 1, 2011.

Rosenberg
    J.A.:

[1]

The Minister of Finance for Ontario appeals from the decision of
    the Divisional Court (Aston, Linhares de Sousa and Lederer JJ.) upholding,
    except in one respect, the decision of an Adjudicator under the
Freedom of
    Information and Protection of Privacy Act,
R.S.O. 1990, c. F.31 [the Act]
    to release the requested records to the respondent Requester. The records
    relate to advice to the Minister leading up to a decision by the Minister about
    the effective date of certain amendments to s. 2 of the
Corporations Tax
    Act
, R.S.O. 1990, c. C.40
.
    While the Ministers privacy decision originally relied upon several sections
    of the Act, the case now turns on s. 13(1) of the Act which gives the Minister,
    as head of the institution, the discretion to refuse to disclose a record
    where the disclosure would reveal advice or recommendations of a public
    servant, any other person employed in the service of an institution or a
    consultant retained by the institution. In holding that the documents must be
    disclosed the Adjudicator relied upon this courts decisions in
Ontario
    (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner)
(2005), 202 O.A.C. 379 (C.A.) [
MOT
] and
Ontario (Ministry of
    Northern Development and Mines) v. Ontario (Assistant Information and Privacy
    Commissioner)
(2005), 203 O.A.C. 30 (C.A.) [
MNDM
].

[2]

In my view, in deciding to release the requested records, the
    Adjudicator misinterpreted and misapplied the decisions of this court with the
    result that she arrived at an unreasonable decision. I would allow the appeal
    and remit the matter to the Information and Privacy Commission.

THE FACTS

[3]

The Ministry of Finance received a request under the Act for all
    records or parts of records in the Ministry that consider the issue of
    retroactivity and the effective date of amendments to s. 2 of the
Corporations
    Tax Act
, which was effective May 11, 2005. Although the Requester is
    referred to in the materials as John Doe, there seems to be no dispute that the
    Requester seeks the records as part of a dispute with the Ministry over tax
    liability. The Ministry believes that certain corporations had entered into a
    tax avoidance scheme and amended the
Corporations Tax Act
to prevent
    tax leakage.

[4]

The Ministry located six records that respond to the request. The
    records are all brief, consisting of one or two pages and may be described as
    follows. Records I to IV are all titled Tax Haven CorporationsTiming of
    Implementation. They are slightly different versions of what the adjudicator
    described as draft option papers. Record I has three sections titled option 1,
    2 or 3. The record contains a note of a possible fourth option which was
    considered. Options 1 and 2 and the possible fourth option set out arguments
    for and against adopting the various options. Option 3 also has arguments for
    and against, but carries an explicit recommendation from the author(s) of the
    document. The possible fourth option also carries an express recommendation.
    Records II and III are similar to Record I, with more or less detail. Record IV
    is similar to Records I to III, except that reference to the possible fourth
    option has been dropped, as has the express recommendation in Option 3.

[5]

Record V is titled Tax Avoidance Strategy. It very briefly
    identifies the possible options that are dealt with in more detail in Records I
    to IV. It also includes a statement from which one could infer what the civil
    servants viewed as the preferred option.

[6]

Record VI is titled Legislating an End to Tax Haven Loophole.  Like
    Record V it identifies the civil servants preferred option, but also includes
    information about what became the fourth option. It includes factual
    information about the federal government criteria for retroactive application
    of tax changes. The Ministry agreed to disclose the factual information but
    sought redaction of the two parts of the document that discuss recommendations.

[7]

Following the original decision of the Adjudicator, the Minister
    applied for reconsideration of the decision. In this application, the Minister
    filed an affidavit from Ann Langleben the Acting Assistant Deputy Minister of
    the Tax Policy Division. At the relevant time Ms. Langleben was Director of the
    Corporate and Commodity Tax Branch, Office of the Budget, Taxation and Pensions.
    She deposed that she was involved in reviewing and advising on the tax policy
    option papers that are Records I to IV. To the best of her recollection, the
    records formed part of the Budget brief process and involved briefings of the
    Assistant Deputy Minister, Office of the Budget and Taxation, the Deputy
    Minister of Finance, and the Minister of Finance. She attached to her affidavit
    an excerpt from an Agenda of a meeting with the Minister on April 11, 2005 with
    the item Corporate Minimum Tax and Tax Haven Corporations (OBT). She deposed
    that this agenda is evidence that the options referred to in the documents went
    to the Minister and were included for explanation and decision by the Minister.
    She states: To the best of my knowledge, all the options were presented as
    advice and recommendations, with relevant considerations.

THE
    DECISIONS OF THE ADJUDICATOR

[8]

The Adjudicator held that to qualify as advice or recommendations
    within the meaning of s. 13 of the Act, the information in the record must
    suggest a course of action that will ultimately be accepted or rejected by the
    person being advised. She held that there was no clear evidence of
    communication of the information in Records I to V from one person to another.
    She characterized the records as draft records and it was not apparent that the
    information in the records was communicated to the person being advised and
    therefore used in the Ministrys deliberative process.

[9]

The Adjudicator also held that even if Records I to V were draft
    versions of the final document and there was evidence that the information was
    communicated to the person being advised, she would have found that only the
    recommendation portion in Option 3 of Records I to III and Record V consisted
    of information which suggests a course of action that will ultimately be
    accepted or rejected by the person being advised. As a preferred option is
    not expressly identified and cannot be inferred in the remainder of the
    information in these records, there is no suggested course of action and
    [therefore] no advice or recommendations.

[10]

As to Record VI, as indicated, the Ministry had agreed to
    disclose most of the document. The remainder was also not exempt since it did
    not suggest a course of action that would ultimately be accepted or rejected by
    the person being advised.

[11]

The Adjudicator refused to reconsider her decision. She held that
    the Ministry had not established a fundamental defect in the adjudication
    process. In any event if she were to reconsider her decision, she would not
    reach a different conclusion. As to Records I to V, she still found there was
    no clear evidence of communication of the information in the records from one
    person to another. As to Record VI, the Ministry had still not provided any
    substantive information to demonstrate that the information suggests a course
    of action that will ultimately be accepted or rejected by the person being
    advised.

THE DECISION OF THE DIVISIONAL COURT

[12]

In a brief endorsement, the Divisional Court held that the
    standard of review is reasonableness. The Court summarized the finding of the
    Adjudicator respecting Records I to V as that there was no recommended course
    of action demonstrated in these documents. This decision fell within the range
    of possible acceptable outcomes, and  thus, is reasonable. Further, her finding
    that it was not demonstrated that the information in those records had been
    communicated to the decision-maker was also within the range of possible
    acceptable outcomes, and thus, reasonable.

[13]

The Court disagreed with the Adjudicator about Record VI. It held
    that, on its face, the document makes a recommendation. The redacted matters
    contain further advice as to how the issue should be dealt with. There was no
    dispute that there was communication of the advice or recommendation found in
    the document, within the deliberative process. Accordingly, the redactions were
    covered by the exemption in s. 13(1) of the Act and were to be withheld.

ANALYSIS

(a)

Standard of Review

[14]

There is no dispute that the standard of review is
    reasonableness. See
MOT
,
at paras. 9-12.

(b)

Interpretation
    of s. 13 of the
Freedom of Information and Protection of Privacy Act.

[15]

The parties to this appeal are the Minister as appellant, and the
    Adjudicator and the Requestor as respondents.  All parties relied upon this
    courts decisions in
MOT
and
MNDM
. However, they have very
    different interpretations of the holdings in those cases. The Minister submits
    that there need not be a preferred option identified in the documents to come
    within s. 13(1). Ms. Blake, counsel for the Minister, submits that
    imposing such a requirement fundamentally misconceives the role of the civil
    service in a Parliamentary democracy. Where, as here, the Minister is the
    decision maker, it is the role of the civil service to present the various
    options. It is not for the civil service to make the decision. Further, there
    is no requirement that the advice or recommendations in the documents be
    communicated to the decision maker. The s. 13(1) exemption envisages a
    deliberative process in which there may be a series of drafts. What is required
    is that the records relate to a decision which will ultimately be made.

[16]

Mr. Challis on behalf of the Adjudicator takes a much different
    view of the holdings in
MOT
and
MNDM
. He submits that this
    courts decisions in those cases must be read with the decisions of the
    Divisional Court and the decisions of the Adjudicators. That package of
    decisions demonstrates that to qualify as advice or recommendations within s.
    13, the information must reveal a suggested course of action that will
    ultimately be accepted or rejected by its recipient during the deliberative
    process. Where a preferred option cannot be identified or inferred and a
    suggested course of action is not otherwise revealed, the exemption does not
    apply. Mr. Challis gives the analogy of a solicitor acting for a client. The
    information conveyed to the client could hardly be considered advice if the
    solicitor did not give an opinion as to the preferred course of action the
    client should take. Further, the Minister must show that the information has
    been communicated to the person being advised in the deliberative process.

[17]

For the following reasons, I agree with the approach of the
    Minister. In my view, that approach is consistent with the holdings in
MOT
and
MNDM
; the approach of the Adjudicator is not. In particular, Mr.
    Challis analogy to a solicitor advising a client fundamentally misconceives
    the role of the civil service in our democratic process.

[18]

In
MOT
, the court considered the meaning of the phrase
    advice and recommendations in s. 13(1), and in particular, the governments
    argument that the two words had to be given different meanings. Thus, the
    government argued that advice did not require a deliberative process and
    would include information or analysis conveyed without a view to influencing a
    decision or the adoption of a course of action. Speaking for the court,
    Juriansz J.A. rejected the governments position. He held that the appropriate
    rule of interpretation was the associated words rule, where the reader looks
    for a common feature among the terms. The term advice also had to be
    interpreted in a manner consistent with the purpose of the Act as outlined in
    s. 1.  Juriansz J.A. was satisfied that the Adjudicator had properly
    interpreted the phrase advice and recommendations. He adopted this part of
    the Adjudicators reasons:

[A]dvice and recommendations, for the purposes of section 13(1)
    must contain more than mere information. To qualify as "advice" or
    "recommendations", the information contained in the records must
    relate to a suggested course of action, which will ultimately be accepted or
    rejected by its recipient during the deliberative process (Orders P-94, P-118,
    P-883 and PO-1894). Information that would permit the drawing of accurate
    inferences as to the nature of the actual advice and recommendation given also
    qualifies for exemption under section 13(1) of the Act (Orders P-1054, P-1619
    and MO-1264).

[19]

He also noted, at para. 29, that the Adjudicators interpretation
    left room for advice and recommendations to have distinct meanings:

A "recommendation" may be understood to "relate
    to a suggested course of action" more explicitly and pointedly than
    "advice". "Advice" may be construed more broadly than
    "recommendation" to encompass material that permits the drawing of
    inferences with respect to a suggested course of action, but which does not
    itself make a specific recommendation.

[20]

In
MNDM
, Juriansz J.A., again writing for the court,
    considered that the interpretation adopted by the Adjudicator in the two orders
    was reasonable and indistinguishable from the interpretation of the Adjudicator
    in
MOT
. At paras. 9 and 10, Juriansz J.A. referred to portions of the
    two orders (PO-2028 and PO-2084) in
MNDM
:

PO-2028

In previous orders, this office has found that the words
    "advice" and "recommendations" have similar meanings, and
    that in order to qualify as "advice or recommendations" in the
    context of section 13(1), the information in question must reveal a suggested
    course of action that will ultimately be accepted or rejected by its recipient
    during the deliberative process of government policy-making and decision-making
    . In addition, adjudicators have found that advice or recommendations may be
    revealed in two ways: (i) the information itself consists of advice or
    recommendations; or (ii) the information, if disclosed, would permit one to
    accurately infer the advice or recommendations given .

PO-2084

A number of previous orders have established that advice or
    recommendations for the purpose of section 13(1) must contain more than mere
    information. To qualify as "advice" or "recommendations",
    the information must relate to a suggested course of action that will
    ultimately be accepted or rejected by its recipient during the deliberative
    process .

[21]

There is a slight distinction in the way the adjudicators in
MOT
and
MNDM
interpreted advice and recommendations. In
MOT
and
    PO-2084, the adjudicators refer to information that must relate to a
    suggested course of action. In PO-2028, the adjudicator suggested that the
    information must reveal a suggested course of action. He went on to describe
    two ways that advice or recommendations may be revealed: (i) the information
    itself consists of advice or recommendations; or (ii) the information, if
    disclosed, would permit one to accurately infer the advice or recommendations
    given. Section 13 itself, speaks of the discretion to refuse to disclose a
    record where the disclosure would reveal advice or recommendations.

[22]

Justice Juriansz went on to hold that the adjudicator in
MNDM
could reasonably hold that the mere fact that a document refers to options or
    pros and cons did not determine that the document revealed advice or
    recommendations. Rather, it depends on the circumstances of each case. He held,
    at para. 16, that the following was a reasonable approach:

The [Adjudicator] proceeded on the basis that whether records
    that set out "options" and "pros and cons" reveal advice or
    recommendations depends on the circumstances of each case. He assessed the
    context in which the records at issue were created and communicated and
    determined they contained no information that could be said to
    "advise" the Board in making its decision on funding, nor did they
    allow one to accurately infer any advice given. He found that the records
    consisted of "mere information" broken down into various
    pre-determined categories.

[23]

Bearing in mind that the standard of review applied by the court
    in
MOT
and
MNDM
was reasonableness, not correctness, the
    following conclusions may be drawn about the meaning of s. 13(1). Advice and
    recommendations, within the meaning of s. 13, must contain more than mere
    information. If it were enough that the record contained information, s. 13(1)
    would, as was observed by Juriansz J.A. in
MOT
,
at para. 28, severely diminish the
    publics right to information. The information contained in the records must
    relate to a suggested course of action that will be ultimately accepted or
    rejected by its recipient. It is implicit in the various meanings of advice
    and recommendations considered in
MOT
and
MNDM
that s.
    13(1) seeks to protect a decision-making process. If the document actually
    suggests the preferred course of action it may be accurately described as a
    recommendation. However, advice is also protected, and advice may be no more
    than material that permits the drawing of inferences with respect to a
    suggested course of action but does not recommend a specific course of action.

[24]

Whether the material in the document expressly makes a
    recommendation or simply presents advice on different courses of action, it
    will be unlikely that the document relates to or reveals only one course of
    action. Especially where the document is to go to the Minister, it will be
    unlikely that there is only one possible course of action that the Minister
    could take in dealing with difficult issues. The civil servants may have a
    preferred option and this may be obvious from the way in which the document is
    drafted, but the Minister, as the decision maker, is entitled to advice on a
    range of possible courses of action. Even where the decision-maker is not a
    Minister but a senior civil servant, those decision makers are also entitled to
    confidential policy advice, which may or may not include explicit
    recommendations as to what the persons reporting to them believe is the
    preferred course of action.

[25]

The reasonableness standard requires courts to give deference to
    the tribunal with regard to both the facts and the law (
Dunsmuir v. New
    Brunswick
, [2008] 1 S.C.R. 190, at para. 48). In my view, the Adjudicator
    made two fundamental errors in her interpretation of s. 13(1) which led to an
    unreasonable decision; a decision that was not within the range of acceptable
    and rational solutions (
Dunsmuir
,

at para. 47). The first error was in holding that there must be evidence
    that the information in the records actually went to the final decision maker.
    The second error was in holding that s. 13 only applies to the suggestion of a single
    course of action ultimately adopted or rejected by the decision maker. I will
    deal with each error in turn.

[26]

There is no requirement under s. 13(1) that the Ministry be able
    to demonstrate that the document went to the ultimate decision maker. What s.
    13 protects is the deliberative process. During that process the position of
    the civil service will undoubtedly evolve and this evolution will be reflected
    in the advice and recommendations in the particular document. I agree with the
    description of that process by Evans J. in
Canadian Council of Christian
    Charities v. Canada (Minister of Finance)
, [1999] 4 F.C. 245 (T.D.), 53
    D.T.C. 5337, at para. 31:

It would be an intolerable burden to force ministers and their
    advisors to disclose to public scrutiny the internal evolution of the policies
    ultimately adopted. Disclosure of such material would often reveal that the
    policy-making process included false starts, blind alleys, wrong turns, changes
    of mind, the solicitation and rejection of advice, and the re-evaluation of
    priorities and the re-weighing of the relative importance of the relevant
    factors as a problem is studied more closely. In the hands of journalists or
    political opponents this is combustible material liable to fuel a fire that
    could quickly destroy governmental credibility and effectiveness.

[27]

Advice and recommendations in drafts of policy papers that are
    part of the deliberative process leading to a decision are protected by s.
    13(1). There need not be direct evidence that any particular paper made its way
    to the ultimate decision maker. The circumstantial evidence in this case is
    overwhelming that all six records were part of the deliberative process that
    led to a decision by the Minister, based on the advice and recommendations in
    these policy papers.

[28]

The unreasonableness of the approach of the Adjudicator is
    demonstrated by a simple example. Assume Record IV could be shown to
    unequivocally have been given to the Minister. Assume that Records I to III are
    earlier drafts of Record IV but, as here, very similar in content. If only Record
    IV were protected, because it could not be shown who received and acted upon Records
    I to III, the protection afforded Record IV would be illusory and meaningless.
    This would be an absurd and unreasonable interpretation and application of s.
    13(1), yet it is the inevitable result of the Adjudicators decision.

[29]

The second fundamental error made by the Adjudicator in this case
    was to interpret
MOT
and
MNDM
,
and hence s. 13(1), as protecting only information that
    identified the single course of action recommended to the decision maker. Such
    an interpretation would all but denude s. 13(1) of any real meaning and is
    unreasonable. It is inconsistent with the context in which the
Freedom of
    Information and Protection of Privacy Act
operates, which is to protect a properly
    functioning democratic process in which the civil service provides advice on a
    range of options, but is not itself always the decision maker.

[30]

Section 13(1) protects advice and recommendations. One of the
    most important functions performed by a civil service in a properly functioning
    Parliamentary democracy is to provide advice to Ministers of the Crown. Advice
    comes in different forms and one form is advice as to the range of possible
    actions. This permits the decision-maker to make the best and most informed
    decision. It would be counter-productive and inconsistent with the policy
    behind s. 13(1) to strip away this form of advice and protect only advice which
    is entirely directory. Yet this is the effect of the decision of the
    Adjudicator and the Divisional Court. To obtain the protection of s. 13(1), the
    advice would have to be presented to the decision-maker without advice as to
    the advantages or disadvantages of a particular option and by presenting the
    advice in a form that supported only one option.

DISPOSITION

[31]

Accordingly, I would allow the appeal, set aside the decision of
    the Divisional Court and the Adjudicator and remit the matter to the
    Information and Privacy Commissioner to reconsider the Requesters application
    in light of these reasons. There will be no order for costs.

Signed:        M. Rosenberg J.A.

I agree K. Feldman J.A.

 I agree K. Swinton J. (ad
    hoc)

RELEASED:  MR FEBRUARY 24, 2012


