2024 SCC 41
Facts:
A reporter with CBC made a request under Ontario’s freedom of information legislation for all mandate letters that Premier Ford provided to his Ministers upon forming government in 2018. Unlike previous governments, Premier Ford did not publicly release his mandate letters. The government refused to disclose the letters to the requestor. It claimed that the letters were exempt from disclosure under s. 12(1) of the Act which protects records that would reveal the “substance of deliberations” of Cabinet.
The Information and Privacy Commissioner of Ontario (“IPC”) found that the exemption did not apply and the letters ought to be disclosed. The IPC considered the claim for exemption in light of the two underlying rationales for preserving Cabinet confidentiality: candour (ensuring that ministers can be frank with each other on contentious policy matters) and solidarity (that all ministers must publicly stand behind decisions of the executive). He found that disclosing the letters would not undermine these purposes. He also noted that there was insufficient evidence that the contents of the letters were the subject of any past deliberations by Cabinet or would return to Cabinet for future deliberations. Further, he found that the letters would not reveal the “substance” of the Premier’s deliberations, but only the “outcomes” of that process, which are not protected from disclosure.
Ontario sought judicial review of the IPC decision. Both the Ontario Divisional Court and a majority of the Court of Appeal determined that reasonableness was the appropriate standard of review and that the IPC’s decision was reasonable.
Decision
(per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.; Côté J. concurring): appeal allowed; the mandate letters are exempt from disclosure under the Cabinet records exemption because they would reveal the substance of Cabinet deliberations.
It is not necessary to determine the appropriate standard of review. The parties agreed that the standard was reasonableness and argued the case on that basis. However, arguments exist as to whether the standard ought to be correctness due to the constitutional conventions engaged by the exemption. The Court does not need to resolve this issue because the IPC’s decision is both incorrect and unreasonable.
The IPC’s reasons were intelligible and transparent. He paid careful attention to the text of the legislation, the purposes of access to information legislation as a whole, and some of the purposes of Cabinet confidentiality underlying the statutory exemption. Nevertheless, his decision was still unreasonable because he “did not engage meaningfully with the legal and factual context”, including the constitutional conventions and traditions surrounding Cabinet confidentiality and the role of the Premier. This led to an overly narrow interpretation of the exemption.
In particular, beyond the candour and solidarity purposes that the IPC identified, he did not address the point that cabinet confidentiality promotes the efficiency of Cabinet’s collective decision-making.
The letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. Further, comparing the contents of the letters against later government policies would reveal what happened during Cabinet’s deliberative process along the way. As such, they reveal the substance of Cabinet deliberations and are exempt from disclosure.
As there is only a single reasonable interpretation in this case—that the mandate letters are exempt under s. 12(1)—there is no purpose to remitting the matter to the IPC for reconsideration.
Justice Côté wrote separate concurring reasons. She rejected the majority’s conclusion that it was unnecessary to select the appropriate standard of review or that the result would be the same regardless of the standard of review. Instead, she concluded that the standard of review was correctness because the issue of Cabinet privilege was a general question of law of central importance to the legal system as a whole (much like solicitor-client privilege or parliamentary privilege).
On the merits of the matter, Côté J. agreed with the majority’s interpretation of s. 12(1) and its application to the mandate letters. She concluded that this was the correct result. However, just because the majority disagrees with the IPC’s conclusion does not make it unreasonable. Indeed, she criticized the majority for engaging in “a de facto correctness review”, reaching its own interpretation of the statute and then using that interpretation as a yardstick with which to measure the IPC’s decision (para. 74). Ultimately, she states: “While I agree with my colleague’s interpretation of s. 12(1), it is exactly that — her interpretation” (para. 83).
Commentary:
Perhaps one of the most interesting aspects of the Supreme Court’s decision is the debate between the majority and Côté J. over the methodology of judicial review, despite their complete agreement over the underlying issue of whether the mandate letters are exempt from disclosure under the relevant legislation.
Justice Côté makes a forceful and compelling argument that the majority is engaged in disguised correctness review. Interestingly, in order to make this point, she provides a detailed defence of the IPC’s decision, despite concluding that it was incorrect. She almost goes as far as expressly stating that it was reasonable. She points out that the decision was consistent with longstanding precedent, relies on the purposes of the legislation, and cites judicial decisions on the issue from across the country—all things that the Court in Vavilov told decision-makers to do. Justice Côté also notes that the “efficiency” rationale, which the majority heavily relies on to call the decision unreasonable, was not raised by the parties before the IPC and had never previously been articulated in those terms by the courts.
As the Court stressed in Vavilov, reasonableness review and correctness review start from different places. They are methodologically distinct. For that reason, Côté J. is right to point out the inconsistency in the majority claiming that selecting the standard of review would make no difference. If reasonableness and correctness review are indeed different forms of judicial review, then the court’s reasons should look substantially different depending on which standard they are applying.
Finally, for those critical that the more “robust” form of reasonableness review mandated by Vavilov would come to resemble correctness review in substance (if not name), the decision in Information and Privacy Commission is an important data point. The majority relies on considerations never raised before the decision-maker and never previously articulated by the courts to label the IPC’s decision unreasonable, despite recognizing that it is intelligible and transparent and engages in a detailed discussion of the text, context, and purpose of the provision. This is similar to another recent application of reasonableness review in Mason v. Canada (Citizenship and Immigration),2 where the majority found the decision-maker’s interpretation unreasonable for failing to consider Canada’s international obligations, even though they were not raised by the parties. In both Information and Privacy Commission and Mason, the Court—while purportedly applying reasonableness review—takes it upon itself to consider these issues for the first time and thereby label the original decision unreasonable.This reasoning would not be out of place in correctness review, but sits uncomfortably with the Court’s prior descriptions of reasonableness review.