Canada: Context Relevant To Risk Of Harm Analysis Under FIPPA, Says Divisional Court

Last Updated: November 2 2016
Article by Avi Sharabi

In Trustees of the Bricklayers and Stonemasons Union Local 2 v Information and Privacy Commissioner of Ontario and Canadian Bricklayers and Allied Craft Unions Members v Information and Privacy Commissioner of Ontario, 2016 ONSC 3821 (CanLII), trustees of multi-employer pension plans of construction unions applied to the Divisional Court for judicial review to set aside an order of the Information and Privacy Commissioner of Ontario (“IPC”), mandating that certain confidential information of the applicants was to be disclosed to a representative of a rival union. In setting aside the IPC’s decision, the Court held that the applicants need not show that harm had actually occurred, but that the context of the disclosure request – a rival union making the request during “raiding season” (see below) – was enough to demonstrate a reasonable risk of harm. The Court’s reasoning implies that government bodies should pay attention to the context in which access to information requests are made when undertaking a risk of harm analysis.

History of the Case

Pursuant to a regulation made under the Pension Benefits Act, the applicant union is required to report to the Financial Services Commission of Ontario (“FSCO”) (operating under the authority of the Minister of Finance (“MOF”)) whenever there is a shortfall in funding of the multi-employer pension plans for which they administer. As part of this reporting requirement, actuarial valuation reports, containing assessments of the pension’s financial viability, lists of the pension’s assets, lists of the pension’s contribution requirements, and other sensitive information must be disclosed. This information is generally only disclosable to members of the pension plans, their spouses, union representatives who are parties to the plans, and employers contributing to the plans.

The Vice President of a rival union sought this sensitive information during “raiding season”. Raiding season occurs when competing unions file displacement applications within a certain timeline before the expiry of a collective agreement. Pursuant to Ontario’s Labour Relations Act, most collective agreements within the construction industry end every three years on April 30. Raiding season occurs within the two months leading up to this date. A great deal of conflict occurs between construction unions during this time.  

The rival union Vice President filed an access to information request with the MOF on February 21, 2013. He asked for documents, including audited financial statements, annual information returns, investment information summaries, actuarial valuations or other actuarial reports and member information booklets, between 2007 and 2013. The MOF identified 140 records and granted him access to 66 documents that did not contain sensitive information. He appealed to the IPC in respect of the records the MOF withheld.

The IPC ruled in the union rival’s favour. Those opposing the release of further documents – the MOF and the applicants – argued that their release could cause harm by assisting unions to displace rival unions. This would result in members transferring their pensions out of the plan, which could cause financial harm to the remaining beneficiaries in the plan, as their benefits would be reduced. Additionally, among other reasons, they argued that this could require the employers remaining in the plans to make relative increases to their contributions.

The IPC rejected this argument, and reasoned that raiding between unions was common place in the construction industry. The IPC downplayed the union rival’s request as a tactic used to bolster membership. Furthermore, the IPC found that the parties objecting to disclosure had not provided enough evidence to convince the IPC that disclosure of the sensitive records “could reasonably be expected to cause the harms they describe in their representations.” The IPC considered it noteworthy that certain individuals were allowed to access this information, which, it reasoned, made it possible for dissemination of these documents between unions. Finally, the IPC noted that there was no evidence before it of even one instance where documents of this kind were used to cause the harms alleged.

Divisional Court Decision

The Divisional Court reviewed the IPC’s order on a standard of reasonableness. A reasonable standard of review means that a court must decide whether the decision of an administrative body was justified, transparent and intelligible, and whether it falls within a range of logical outcomes that are defensible.

At issue was section 17(1) of the Freedom of Information and Protection of Privacy Act (“FIPPA”), which governs access to information held by public institutions in Ontario. This section prevents disclosure of certain sensitive information, provided by a third party to the public body in confidence, which could result in certain enumerated harms to the organization.

The Court followed the Supreme Court of Canada’s decisions in Merck Frosst Canada Ltd. v. Canada (Health) (2012) and Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner) (2014), on the proper test for demonstrating the risk of future harm. The Supreme Court held that it was too high of a burden to prove that harm was more likely than not to occur; the proper test is a reasonable expectation of probable harm.

The Divisional Court held that the IPC had placed too heavy of a burden on the applicants. The Court considered the context in which the access to information request was made. The rival union was actively campaigning against one of the unions who participated in the pensions administered by the applicants. One of the issues in the campaign concerned the viability of one of the pension plans. As such, there was a basis in logic to conclude that the applicants’ fear of future harm was reasonable.

Discussion

From reading this decision one can’t help but get the sense that the Court thought it obvious that the IPC’s decision was unreasonable. For instance, the Court stated that the IPC was “naïve” in failing to consider the context in which the access request was made. Furthermore, the Court found the IPC’s assertion that the information was already available to a “not insignificant” number of people was “overstated”. The Court reasoned that, because the disclosure of this information was restricted to certain individuals, this underscored the confidentiality of the information. By legal standards, this decision was somewhat scathing of the IPC. Perhaps the purpose of this language was to underscore the paramountcy of context in the risk of harm analysis, or perhaps the Court was simply frustrated with the IPC’s decision. Either way, this case is precedent for the proposition that the surrounding circumstances will be an important factor in assessing the reasonableness of the risk of future harm in the context (no pun intended) of an access to information request.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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