Correctness, Conventions, Cabinet Confidence: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74
I was puzzled by the Supreme Court of Canada’s decision to grant leave to appeal from the Ontario Court of Appeal in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74. Admittedly, this is a high-profile case, as it involved a decision by the Commissioner that mandate letters issued by the Premier of Ontario to his cabinet ministers should be released under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31; and, at the Court of Appeal, Lauwers JA wrote a typically thoughtful set of dissenting reasons about the Westminster tradition, cabinet confidence and constitutional conventions. All things considered, high-profile cases are more likely to end up at the Supreme Court. However, this case seemed to me to be a poor vehicle for the consideration of broader issues of constitutional principles: fundamentally the decisions below turned on the Commissioner’s interpretation of the Act, especially s. 12(1), and five out of six judges at the Divisional Court and Court of Appeal found that the decision was reasonable.
Within a few minutes of the Supreme Court hearing commencing, however, the puzzle was resolved. For one thing, Justice Jamal pressed counsel for the appellant on whether reasonableness was the appropriate standard of review (as all parties and the courts below had accepted, or perhaps assumed). For another thing, several members of the Supreme Court (especially those who served at the upper echelons of the public service) voiced concerns about whether the Commissioner had properly understood the role of Cabinet in the Westminster tradition.
The correctness argument is intriguing. Justice Jamal suggested that the scope of cabinet confidence is a question of central importance to the legal system, because it has a constitutional dimension, and that the rule of law requires uniform answers to be given. In this regard, it is analogous to solicitor-client privilege, where correctness review applies: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53.
I am sceptical that this case fits into a correctness category. It is certainly true that the scope of cabinet confidence has a constitutional dimension. It is less clear that it is required to be given the same scope in all circumstances. It is based, after all, in constitutional convention and may naturally evolve over time. Whereas solicitor-client privilege is an everyday concern for all lawyers, such that any deviation from the norm (by any tribunal, anywhere) is liable to undermine privilege, it is hard to see how the same is true of cabinet confidence. In the most high-profile litigation of which I am aware relating to cabinet confidence, Attorney-General v Jonathan Cape,  QB 752, Lord Widgery CJ treated the Attorney General’s request for an injunction to block the release of a cabinet minister’s memoirs under the general law of breach of confidence. There was no special subset relating to cabinet confidences. Indeed, Lord Widgery CJ cautioned, “there cannot be a single rule governing the publication of such a variety of matters”, acknowledging that it can “be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of joint Cabinet responsibility”. This is not language that evokes uniformity; it is language that evokes fact-sensitivity and careful, contextual, case-by-case analysis.
In addition, Canadian courts have taken a flexible approach to cabinet confidence when determining whether information should be disclosed in litigation in the face of claims of public interest privilege. In Carey v. Ontario,  2 SCR 637, La Forest J was happy to concede that disclosure of information about cabinet-level decision-making could be inappropriate. But, “[w]hat I would quarrel with is the absolute character of the protection accorded [cabinet] deliberations or policy formulation without regard to subject matter, to whether they are contemporary or no longer of public interest, or to the importance of their revelation for the purpose of litigation” (at para. 50). A balancing exercise is necessary in all cases (at paras. 79-85). But if careful weighing of competing interests must invariably be conducted to determine whether a document should be released, it is difficult to maintain that cabinet confidence must be given the same meaning in all circumstances. If so, it cannot fall into one of the correctness categories established in Vavilov, as these categories include only those questions to which courts must give uniform answers to preserve the integrity of the legal system (Vavilov, at para. 53).
It is not clear, in any event, that s. 12(1) of the Act seeks to codify the common law of cabinet confidence. For one thing, the Act creates a general right of access to government documents, from which s. 12(1) is an exemption. There was never any common law right of access to government documents. Notice also that, in keeping with the fluid nature of cabinet confidence as a constitutional convention, the exemption lapses after 20 years: s. 12(2)(a). If anything, the Act seeks to tinker with the common law, not preserve it, by creating a general open government regime subject to some exemptions, all of which is administered by the Commissioner, not the courts. For another thing, the exemption is absolute in character, as there is no balancing exercise to conduct: it is not possible to release a record exempted under s. 12(1) even if there is a “compelling public interest” in its release (s. 23). This is a marked departure from the common law of public interest immunity, where balancing is an integral part of the exercise of determining whether sensitive documents should be released. If so, the argument for correctness review is further undermined, because the Act represents a departure from the common law of cabinet confidence, not a codification.
The better view, therefore, is that the courts below were correct to apply the reasonableness standard. The Act creates a bespoke regime for disclosure, administered by the Commissioner. Section 12 is animated by discrete statutory concepts rather than by the common law of cabinet confidence. As such, the standard presumption of reasonableness review applies and there is no basis on which to rebut the presumption.
Lastly, even if the correctness standard were applied here it is not clear that the outcome would be any different. Cabinet confidence protects “deliberations”, not decisions (Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21,  2 SCR 556, at para. 60). The mandate letters at issue in this case are not “deliberations”. Of course, the “contents” of a decision “may reveal matters that were discussed and considered in Cabinet” (at para. 67). But this is quintessentially a question of drawing inferences from facts, which is exactly the exercise the Commissioner engaged in; it is not one of the “legal questions” (Vavilov, at para. 53) to which correctness review applies (though see my observations here on another fact-sensitive case the Supreme Court heard recently).
Whatever about the outcome of the case, however, at least I am no longer puzzled about why leave was granted. Rather, I am very interested to learn how the Supreme Court will dispose of the standard of review issue.
This content has been updated on April 24, 2023 at 10:49.