Losing Confidence: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
The Supreme Court of Canada’s most recent entry in its standard of review catalogue is Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4. Here, the Commissioner had ordered 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. The government of the province had resisted disclosure on the basis of s. 12(1) of the Act, which creates an exemption “where the disclosure would reveal the substance of deliberations” of the cabinet for a range of documents “including” (but not limited to) agendas, minutes or lists of policy options presented to cabinet. The basic premise of the Commissioner’s detailed reasons for decision was that mandate letters, which memorialize decisions that have already been taken, would not reveal the substance of deliberations.
Applying reasonableness review, Karakatsanis J concluded that the Commissioner’s decision was unreasonable. The key error was that the Commissioner had failed to have adequate regard to the constitutional context: “Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1)” (at para. 27). This caused a loss of confidence in the outcome (at para. 23).
The Commissioner erred in two ways. First, he gave too narrow a scope to s. 12(1). The Commissioner focused only on two rationales for cabinet confidentiality — promoting ministerial candour and preserving collective solidarity — to the exclusion of a third, efficient government. Failing to take this rationale into account caused him to ascribe too narrow a purpose to s. 12(1) and to fail to respond to one of the government’s submissions:
First, had the IPC recognized that the fundamental focus of deliberative secrecy is effective government, the Commissioner could not have framed the purpose to focus only on “free and frank discussion among Cabinet members”. Rather, as Lauwers J.A. noted, a contextual interpretation of s. 12(1) instructs that the provision more broadly aims to establish the confidentiality necessary for the executive to function effectively (paras. 187 and 208).
Second, had the IPC framed the purpose of s. 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s. 12(1). Cabinet Office argued that, along with ensuring ministerial candour and solidarity, Cabinet secrecy also helps to ensure the deliberative process runs efficiently by preserving the confidentiality of deliberations until a final decision has been made and announced (IPC reasons, at paras. 30-32; A.R., vol. III, at pp. 90, 101-2, 228 and 232) (at paras. 34-35).
As a result, the Commissioner also “did not acknowledge Cabinet Office’s submission that determining “when and how” to communicate policy priorities to the public and opposition parties is itself an important part of Cabinet’s deliberative process” (at para. 37, emphasis original). In particular, the Commissioner “concluded that “outcomes” of the deliberative process are not encompassed by the opening words of s. 12(1), full stop, without acknowledging that an important part of Cabinet confidentiality is government’s prerogative to decide how and when to announce policy priorities (see para. 104)” (at para. 39).
Second, the Commissioner failed to have regard to constitutional conventions and traditions relating to the nature of cabinet decision-making and the premier’s role in the process:
The Letters on their face contain communications between the Premier and Cabinet ministers about policy priorities, many if not most of which would require decisions from Cabinet, both as to their substance and as to how they should be communicated to the public. Cabinet “formulates and carries out all executive policies,” and all major government policy matters are forwarded to Cabinet for decision (Hogg and Wright, at § 9:5; M. Schacter and P. Haid, Cabinet Decision-Making in Canada: Lessons and Practices (1999), at p. 1; see also Brooks, at p. 236). There is no basis in convention or past precedent to separate the Premier’s role in this process from the rest of Cabinet. Disclosure of the Premier’s initial priorities, when compared against later announcements of government policy and what government actually accomplished, would reveal the substance of what happened during Cabinet’s deliberative process. The IPC’s characterization of the Letters as “the end point of the Premier’s formulation of the policies and goals to be achieved by each Ministry”, or “the product of his deliberations” was thus beside the point, and an unreasonable basis upon which to deny protection under s. 12(1) (paras. 132 and 134 (emphasis added); see also para. 79).
Relatedly, to the extent the IPC required evidence linking the Letters to “actual Cabinet deliberations at a specific Cabinet meeting”, that approach was unreasonable. Such a requirement is far too narrow and does not account for the realities of the deliberative process, including the Premier’s priority-setting and supervisory functions, which are not necessarily performed at a specific Cabinet meeting and may occur throughout the continuum of Cabinet’s deliberative process. Accordingly, it would be unreasonable for the Commissioner to establish a heightened test for exemption from disclosure that would require evidence linking the record to “actual Cabinet deliberations at a specific Cabinet meeting”…
[The Commissioner’s] focus on actual deliberations at a specific Cabinet meeting underscored his finding that the fact that some policy priorities “may never return to Cabinet at all or . . . may be altered or amended in significant . . . ways” was a “deficiency” in Cabinet Office’s continuum argument and meant that the Letters could not be exempted in their entirety (para. 121). This determination was unreasonable because it did not account for the fact that disclosure of early policy priorities not acted on, or changed in significant ways before implementation, would be revealing of the substance of Cabinet deliberations — whether the decision to abandon or alter the priority was the decision of Cabinet, its committees, or the Premier (at paras. 53-55).
These considerations led inexorably to the conclusion that the mandate letters were covered by s. 12(1). Karakatsanis J refused to remit the matter to the Commissioner.
The methodology of reasonableness review is worthy of comment. Karakatsanis J refused to grapple with whether the appropriate standard of review was correctness or reasonableness, on the basis that the decision was unreasonable and thus could not survive under either standard (at para. 16). In substance rather than in form, however, the analysis looks very much like correctness review in the guise of reasonableness review.
The first difficulty here is that Karakatsanis J’s analysis of the Commissioner’s reasons focuses on two aspects of context even though the Commissioner conducted a wide-ranging analysis. As Côté J accurately observes:
The Commissioner relied on, among other things, the stated purposes of the legislation (see paras. 106‑8); the principle that “exemptions from the right of access should be limited and specific” (s. 1(a)(ii) of the Act); our Court’s decisions in Babcock and Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC),  2 S.C.R. 403; appellate jurisprudence across the country, notably O’Connor; and a significant body of past administrative decisions. All of these factors lend support to his interpretation (at para. 81).
However, Karakatsanis J does not acknowledge the Commissioner’s reliance on these indicia of reasonableness, nor does she explain why the Commissioner’s decision is unreasonable because it fell short in two areas even though it could be defended on other grounds. This was an extensive decision where a loss in confidence in the outcome in one respect could, in theory at least, be offset by the strengths of the reasons in other respects.
Moreover, second, there is significant force to Côté J’s charge that in order to identify the shortfalls in the Commissioner’s decision, Karakatsanis J “conducts her own interpretation” of s. 12 and “uses her conclusions as a yardstick” against which to measure the Commissioner’s interpretation (at para. 76):
For example, my colleague refers to three rationales for the convention of Cabinet confidentiality: “. . . candour, solidarity, and efficiency . . .” (para. 30). She finds that the Commissioner considered the first two of these rationales but that he “did not engage with a core purpose of Cabinet secrecy to promote the efficiency of the collective decision making” or with the ultimate goal of effective government (para. 32). However, this third rationale of “efficiency”, while an important tenet of Cabinet privilege, has not been articulated by our Court as such. As a result, I do not agree that it was unreasonable for the Commissioner to not address a concept that is fully expressed only in scholarly authority (see Karakatsanis J.’s reasons, at paras. 30 and 36, citing Y. Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017), 51 R.J.T.U.M. 51, at p. 68, and Y. Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (2021), at p. 26) (at para. 76).
It is worth repeating how Karakatsanis J herself framed the issue: “had the IPC framed the purpose of s. 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s. 12(1)” (at para. 35, my emphasis). This gets things backwards: the submission could only have been a “central argument” if the Commission had agreed that the “purpose” of s. 12(1) should have been “framed…more broadly”. I have some difficulty appreciating how this can be described as “reasons-first” reasonableness review as Vavilov requires. There is an important difference between this case and the Supreme Court’s recent decision in Mason (noted here), where the tribunal had simply failed to address a central argument for an unarticulated reason, not because of the purpose it ascribed to the provision.
Furthermore, and fundamentally, the choice of standard of review is of critical importance here. On reasonableness review, the Commissioner is in the interpretive driving seat. If deference is to mean anything it all, it must be up to the Commissioner to determine whether the law should be changed to incorporate an additional rationale as background context for s. 12(1). As it was, the Commissioner gave multiple reasons in support of his interpretation and, ordinarily, on a deferential standard his refusal to change, extend or expand the law would be respected. On correctness review, by contrast, the courts have the last word (and, indeed, Côté J applying correctness review agreed that the law should be updated to incorporate this third rationale). This should have been an example — a pretty good one, I would have thought — of the standard of review making a difference. In my view, reasonableness was the appropriate standard, for reasons I developed here and from which Côté J’s neatly-done argument at para. 55-61 does not dissuade me, and an appropriately deferential approach would have led to the decision being upheld as reasonable.
The discussion of legal and factual constraints is also worthy of comment. Again, there is an important difference from Mason: there, the legally binding constraint of international law identified by the Supreme Court at least had the merit of being set out expressly in statute; but here, the conventions and traditions relied upon by the Supreme Court are entirely unwritten. This is different even from CSFTNO (noted here), where the relevant Charter values had been expressed repeatedly in binding Supreme Court of Canada jurisprudence on the objectives of s. 23 of the Charter.
Here, the conventions and traditions have not and arguably cannot be reduced to precise textual statements (and, of course, by their very nature are not binding law at all). Indeed, as political scientist Professor Emmett Macfarlane points out in a critical comment on the decision, these conventions and traditions shift over time, meaning that any administrative decision-maker required to consider them will be aiming at a moving target:
[T]he problem in this case is that convention is wholly silent on the place or relationship of mandate letters to cabinet deliberations. The Court rests its decision quite heavily on a discussion of convention that is largely irrelevant to the central issue.
In fact, the emergent practice of releasing mandate letters to the public (not only at the federal level but in Ontario under former Premier Kathleen Wynne) is precisely what led to this controversy in the first place! Stunningly, the Court pays no heed to this practice – a practice that was unlikely to emerge if those governments felt it would somehow constrain or impair cabinet confidentiality or effective decision-making. In this fundamental sense, recent political practice directly contradicts some of the Court’s conclusions about the effects releasing mandate letters might have on cabinet confidentiality.
Professor Macfarlane also notes that the Court gets quite far into the “weeds” of the operation of government; traditionally, of course, making findings of fact and drawing inferences based on a detailed record is a matter for the administrative decision-maker.
For these reasons, I am somewhat sceptical that the Court arrived at the correct conclusion in this case. Whereas in Mason and CSFTNO the legal and factual constraints identified by the Court stood on solid ground (and the decisions under review were silent on key aspects of the arguments and evidence), in Information Commissioner there is significant force to Côté J’s charge that the majority engaged in correctness review in substance if not in form. It will be necessary to read the next entries in the standard-of-review catalogue very carefully to see if the Court is sending a signal about the level of intensity of reasonableness review under the Vavilov framework.
This content has been updated on February 5, 2024 at 15:07.