“In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive not only to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity.” – Justice Karakatsanis writing for the majority

The Supreme Court of Canada considered the issue of whether mandate letters delivered by the Premier of Ontario to his ministers were exempt from disclosure to the public pursuant to the Cabinet privilege exemption in section 12(1) of the Freedom of Information and Protection of Privacy Act. The Supreme Court held that the letters were exempt under section 12(1) as they would reveal the “substance of deliberations” of Cabinet or its committees.

Administrative law – Decisions reviewed – Privacy commissioner; Judicial review – Appeals – Standard of review – Reasonableness; Freedom of information and protection of privacy – Disclosure of records

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2024] S.C.J. No. 4, Supreme Court of Canada, February 2, 2024, R. Wagner C.J. and A. Karakatsanis, S. Côté, M. Rowe, S.L. Martin, M. Jamal and M. O’Bonsawin JJ.

A CBC journalist requested access to 23 mandate letters sent by the Premier of Ontario, Doug Ford, to each of his ministers shortly after forming government in 2018. The letters set out the Premier’s views on policy priorities for his government’s term in office. The Cabinet Office refused the CBC’s request on the basis that the letters were exempt from disclosure pursuant to the Cabinet privilege exemption in section 12(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). Section 12(1) of FIPPA exempts from disclosure a list of Cabinet records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees.

The CBC appealed the refusal to disclose the mandate letters to the Information and Privacy Commissioner of Ontario. The Commissioner decided the mandate letters were not exempt under section 12(1) of FIPPA and ordered that they be disclosed to the CBC. He held the letters were not protected because nothing indicated they were intended to serve, or had served, as the basis for discussions by Cabinet as a whole. Rather, he found that the letters represented “outcomes” of the Premier’s deliberative process. At most, the letters indicated mere subjects or topics of deliberation that may have arisen during a Cabinet meeting or may be considered in future meetings. The Commissioner held that section 12(1) was not designed to protect mere subjects or topics of deliberation, nor was it designed to protect the outcomes or policy decisions arising out of the deliberative process.

The Attorney General of Ontario sought judicial review of the Commissioner’s decision. The Divisional Court dismissed the application for judicial review, finding that the standard of review was reasonableness and the Commissioner’s decision was reasonable. On appeal, a majority of the Court of Appeal agreed with the Divisional Court’s decision and dismissed the appeal. 

The Attorney General of Ontario appealed the judgment of the Ontario Court of Appeal. The Supreme Court of Canada allowed the appeal, finding that the mandate letters were protected from disclosure by section 12(1) of FIPPA. Writing for the majority, Justice Karakatsanis held that the Commissioner’s interpretation of the Cabinet records exemption was too narrow and that he failed to meaningfully engage with the legal and factual context against which section 12(1) operates – in particular, the constitutional convention of Cabinet confidentiality and Cabinet’s decision-making process.

Justice Karakatsanis held that the opening words of section 12(1) demand a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations. The mandate letters contained priorities communicated to ministers by the Premier at the outset of governance and represented the initiation of Cabinet’s deliberative process. Justice Karakatsanis found that the letters will be revealing of the substance of Cabinet deliberations when compared to subsequent government action.

With respect to the issue of standard of review, Justice Karakatsanis held that it was not necessary to decide this issue, as the same conclusion followed regardless of whether the standard of review was correctness or reasonableness. Even on the more deferential standard of reasonableness, the Commissioner’s narrow interpretation of the “substance of deliberations” under section 12(1) was unreasonable, as was his application of the provision to the mandate letters.

Writing in dissent, Justice Côté disagreed with the majority’s finding that it was not necessary to resolve the question of the applicable standard of review. She held that the scope of Cabinet privilege is a question of central importance to the legal system as a whole and must be reviewed for correctness. The Commissioner’s decision that the mandate letters did not reveal the “substance of deliberations” of Cabinet or its committees was incorrect. Justice Côté agreed with the majority’s interpretation of section 12(1) of FIPPA and with its conclusion that the mandate letters were exempt from disclosure pursuant to that provision.

This case was digested by Aynsley Severide of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].