In a recent decision, the Ontario Court of Appeal has
permitted Ontario's Minister of Finance to withhold draft
policy option memos from disclosure in response to an access to
information request. The requester sought records relating to the
decision of the Ministry of Finance to proposed amendments to
section 2 of the Corporations Tax Act (Ontario) that were
intended to be retroactive in effect. The result of the retroactive
amendment was to close a perceived tax loophole.
Pursuant to subsection 13(1) of the Freedom of
Information and Protection of Privacy Act(Ontario)
("FIPPA"), the Minister of Finance had discretion to
refuse to disclose documents if (among other things) the disclosure
would reveal advice or recommendations of a public servant.
The records in issue were prepared by civil servants and formed
part of the internal budget briefing process of the Ministry of
Finance at the level of the Assistant Deputy Minister, Deputy
Minister and Minister of Finance. The adjudicator of the
Information and Privacy Commissioner took the position that in
order to qualify as advice or recommendations, a record must reveal
a suggested course of action that will ultimately be accepted or
rejected by the recipient of the record during a deliberative
process. Under this formulation of the test for the application of
subsection 13(1) of FIPPA, the advice must set out a course of
action and be communicated to the person who is entitled to make
the decision in the deliberative process. The Divisional Court
found the adjudicator's analysis was reasonable.
The Ontario Court of Appeal disagreed. The court held that the
adjudicator's approach to subsection 13(1) of FIPPA was too
narrow. In particular, the court held that in order for section
13(1) to apply:
It is not necessary to demonstrate that the documents are final
versions or that the documents were delivered to the final
The discretion to withhold the record is available when the
information would permit the drawing of accurate inferences
regarding the nature of the advice and recommendations and the
documents are part of the deliberative process.
The records need not set out a single course of action that is
to be adopted or rejected by the decision-maker.
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