FOI reaches the Supreme Court of Canada: the Mandate Letter Decision

A Supreme Court of Canada decision released Friday has been receiving a fair bit of media attention:

CBC News: Supreme Court rules Premier Doug Ford’s mandate letters to be kept secret | CBC News

Globe & Mail: Doug Ford does not need to make 2018 mandate letters public, Supreme Court of Canada rules

TVO Today: The Supreme Court has handed Ford a win on mandate letters — but the fight shouldn’t end here

Global News: Will Supreme Court mandate letters ruling worsen transparency in Ontario?

CP24: Canada’s highest court releases decision on Ontario cabinet letters, sides with Premier Doug Ford

Canadian Civil Liberties Association: CCLA Reacts to Supreme Court Ruling

Jurist: Canada Supreme Court rules disclosure of Premier Doug Ford’s mandate letters are not required

Canadian Lawyer: SCC backs Ontario government’s position that mandate letters need not be disclosed to media

In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, the Supreme Court of Canada unanimously ruled that 23 mandate letters issued by the Premier of Ontario to his ministers shortly after forming government in 2018 are exempt from disclosure under the “cabinet confidentiality” exemption set out in section 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA). This exemption applies records that could reveal the substance of Cabinet or its committees’ deliberations.

Much of the media coverage has taken the predictable position that any refusal to disclose government documents is a sign of dysfunction. The CCLA took the opportunity to declare “Decades ago, Canada was a leader in freedom of information legislation, but that time has long since passed,” while John Michael McGrath at TVO Today called it “a defeat for journalism and for freedom of expression more broadly”.

I’ve reported before on media critiques of Canada’s Freedom of Information (FOI) system. The media’s attention to our FOI system has certainly been on the rise, although sometimes I feel journalists aren’t well positioned to provide a fair analysis. Journalists specialize in obtaining and disseminating information, and viewed through this lens, any denial of access to information can seem like a flaw rather than a crucial feature of the system. But disclosure exemptions serve an important role in our democracy, whether we’re talking about solicitor-client privilege, cabinet confidentiality, protections for personal information, third-party confidential information, or any of the more than two dozen exemptions and exclusions under Ontario’s Freedom of Information laws.

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4

Thankfully, in their unanimous decision to uphold the government’s decision to refuse to disclose the mandate letters, the Supreme Court of Canada took seriously the need to balance the “two essential goals” of freedom of information legislation: access to information, but with “spheres of confidentiality” to allow our branches of government to fulfill their constitutional roles.

As described in the opening of the decision of six of the seven justices, written by Justice Karakatsanis:

[1] Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.

[2] Access to information promotes transparency, accountability, and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to “improve the workings of government” by making it “more effective, responsive and accountable” to both the legislative branch and the public.

[3] However, in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others.” Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions.” Just as legislative privilege protects the ability of elected representatives to act on the will of the people, and deliberative secrecy preserves the independence of the judiciary, Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner. Cabinet secrecy is “essential to good government”, as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations.

[4] All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees. The interpretation of “substance of deliberations” by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 (case citations removed).

The requested documents were not minutes of Cabinet deliberations themselves, but rather letters prepared as a result of Cabinet deliberations. The position of the Cabinet Office was that disclosing such letters to the public would be sufficiently revealing and would therefore impact Cabinet’s deliberative process. The CBC’s arguement, on the other hand, was that the scope of the words “substance of deliberations” in the exemption should be limited to records revealing discussion of the pros and cons of a course of action. The Information and Privacy Commissioner of Ontario (IPCO) took a “middle” view of the s. 12(1) exemption, allowing that topics or subject matters will be exempt where “the context or other additional information would permit the reader to draw accurate inferences” as to Cabinet deliberations, but found that the disclosure of the mandate letters were not protected because nothing suggested they were intended to serve, or served, as the basis for discussions by Cabinet as a whole.

Much ink has already been spilled on whether the IPCO’s decision to allow the disclosure of the letters was correct. In this article, I don’t wish to focus on who made the best decision in terms of whether the mandate letters should be disclosed to the public (although it is interesting to note that both the Divisional Court of Ontario and the Ontario Court of Appeal upheld the IPCO’s decision as reasonable before the Supreme Court of Canada unanimously overturned the decisions of the IPCO and both lower courts). Rather, I think the most important issues from this case are the debate over the standard of review the court applied to the IPCO decision, and the court’s willingness to overrule the IPCO when it arguably encroached on a constitutionally protected “sphere of confidentiality” within our democratic system.

The Standard of Review

When a court is conducting a judicial review of a decision made by a minister, commissioner, or tribunal, generally the court must first determine the appropriate standard of review. A decision can either be reviewed on the basis of “correctness”, that is, whether the court reviewing the decision would actually have reached the same conclusion, or on the “reasonableness” standard, which merely asks if the decision was “reasonable” and therefore gives much more deference to the original decision maker.

In general, arguments supporting the “reasonableness” standard usually tend to emphasize the following points:

• The legislative branch, as a direct representation of the people’s democratic will, is best positioned to choose suitable decision-makers and empower specific tribunals. Courts overruling decisions made by entities appointed through a democratic process can be seen as undermining democracy.
• Often, decision-makers and tribunals possess specialized expertise in their respective fields. For instance, it would be impractical for courts to second-guess the judgment of a panel of engineers concerning the optimal type of steel for bridge construction.
• Decision-making bodies and tribunals usually have the resources and connections necessary to make well-informed decisions within their domain, including the ability to conduct investigations or consult industry experts.
• Considering the high costs and limited availability of court time, adopting a principle that decisions are not to be overturned unless deemed “unreasonable” helps manage expectations regarding the likelihood of a successful judicial review or appeal, thus reserving judicial resources for only the more flagrant cases.

Conversely, arguments for adopting a “correctness” standard of review generally take into account considerations such as:

• The degree to which the entity making the initial decision resembles the court conducting the review or appeal; for instance, legal judgments made by inferior courts are typically subject to a “correctness” standard during appellate review.
• The extent to which the issue in question is predominantly legal, as opposed to being based on factual determinations, politics, or specialized knowledge (e.g., scientific or engineering matters).
• The involvement of constitutional issues, which may transcend the authority of the legislature and its appointees. Given that the legislature is prohibited from enacting laws that violate Canada’s constitution, decision-makers appointed by the legislature are similarly restricted from making decisions which are unconstitutional. Reviewing such potentially unconstitutional decisions under a “correctness” standard acts as a safeguard, reinforcing the judiciary’s crucial function in upholding the principles of our constitutional democracy.

In the case under consideration, the Court noted that both of the lower courts had reviewed the matter on the more deferential “reasonableness” standard rather than “correctness”, and the parties arguing the case both agreed that the Supreme Court should use a “reasonableness” standard as well. However, the Court found it was not bound by the agreement of the parties on this issue, and instead, six of the seven justices declined to take any position on whether a “reasonableness” or a “correctness” review was appropriate in this case. Rather, they simply found the decision of the IPCO to order the release of the mandate letters was itself unreasonable, which avoided the issue of the standard of review and made it somewhat irrelevant whether the appropriate standard was “reasonableness” or “correctness”.

But was the IPCO’s decision here truly “unreasonable”? The letters did not reveal the specific deliberations of Cabinet, but were merely informed by the deliberations. On its face, it does appear to be something of a grey area. Further, both the Divisional Court and the Ontario Court of Appeal upheld the decision of the IPCO, further suggesting the matter was not so cut-and-dry as to be an unreasonable decision. Rather, I detect some hesitation on the part of the court to come to a conclusion that IPCO decisions should be reviewed on the basis of their correctness.

The Hon. Justice Suzanne Côté wrote a separate decision in the case which concurs with the majority but differs in its reasoning and in it focus on the appropriate standard of review. Although she agreed with the other six justices that the IPCO should not have ordered the letters to be disclosed, she did not agree that “the same conclusion follows regardless of whether the standard of review is correctness or reasonableness”. Instead, in her view, the issue raised in the appeal, namely, the scope of Cabinet privilege, is “a general question of law of central importance to the legal system as a whole” and she would therefore “review the Information and Privacy Commissioner’s decision on a standard of correctness”. Further, she did “not agree that the same conclusion follows regardless of whether the standard of review is correctness or reasonableness”. In her assessment, the reasons of Justice Karakatsanis actually comprised an analysis of the IPCO’s decision on the basis of correctness, rather than reasonableness:

[74] With respect, my colleague fails to apply this methodology in practice. She conducts her own interpretation of s. 12(1), and of the importance and nature of Cabinet privilege, and then measures it against that of the Commissioner. The fact that my colleague would have reached a different conclusion than that of the Commissioner does not make the Commissioner’s decision unreasonable.

However, as Justice Côté took the view that the IPCO’s decision should be reviewed on the basis of its correctness, she found herself in concurrence with the other six justices in the final determination of the matter, that is, that the IPCO’s decision should be overturned and therefore the mandate letters should not be ordered out.

Constitutionally Protected Confidentiality

Justice Côté made much of the fact that the case was about Cabinet privilege, which, like solicitor-client privilege and parliamentary privilege, invokes “general questions of law that are of ‘fundamental importance and broad applicability’”. Cabinet privilege, in her view, “implicates constitutional traditions and conventions ‘crucial to the proper functioning of our democracy’”. Therefore, in her view, this was not an appropriate case for deferring to the Privacy Commissioner’s judgement under a “reasonableness” standard.

Although Justice Karakatsanis and the other six justices were not willing to make a determination on the reasonableness vs. correctness issue, in some ways, the result is the same. A united Court has drawn a line in the sand and shown a strong willingness to preserve the scope of exemptions to disclosure under the freedom of information legislation in Ontario and across the rest of Canada, and in both opinions it has emphasized the importance of constitutionally protected spheres of confidentiality, not limited to cabinet privilege, but to other important traditions of non-disclosure as well, such as solicitor-client privilege.

Conclusion

The Supreme Court of Canada’s decision in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 has far-reaching implications for the interpretation and application of Freedom of Information (FOI) laws across Canada. By ruling that mandate letters are exempt from disclosure, the Court has underscored the importance of respecting FOI exemptions and protecting the constitutionally-protected spheres of confidentiality such as Cabinet deliberations. This decision reinforces the principle that some government communications are intended to be shielded from public scrutiny to ensure effective governance.

Moreover, the decision may have implications for transparency and accountability within the government. While the Supreme Court acknowledged the importance of FOI legislation in promoting government transparency and public participation, it also emphasized the necessity of maintaining confidentiality for effective governance. This balance between transparency and confidentiality is a fundamental aspect of democratic governance, but the ruling perhaps presages a greater willingness to take the side of protecting government confidentiality when these two principles conflict.

Future challenges to FOI exemptions and the public’s right to access government-held information will have to navigate the precedent set by this case. Advocates for greater transparency may find it more challenging to argue for the disclosure of government records that are even tangentially related to constitutionally protected confidential information. This may lead to a more conservative approach to granting FOI requests, tilting the balance somewhat and potentially limiting the public’s ability to scrutinize government decisions and hold officials accountable.

Ultimately, the Supreme Court of Canada’s decision in this case reaffirms the importance of Cabinet confidentiality within the framework of Canadian democracy. However, it also underscores the ongoing tension between the ideals of transparency and the practical requirements of governance. As Canada faces an environment of increasing media attention on FOI issues, finding the right equilibrium between these competing interests will remain a critical challenge for policymakers, courts, and civil society alike.

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