Keeping Confident about Cabinet Confidentiality: Ontario v Ontario

by Daniel Legris · March 27, 2024

In Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4 [Ontario], the Supreme Court of Canada (“SCC” or the “Court”) held that the executive branch of the Ontario government was not required to disclose mandate letters sent to Cabinet Ministers because of society’s overriding interest in preserving Cabinet secrecy. The Court struck a balance between the public’s interest in freedom of information with the need to maintain the confidentiality of Cabinet records whose public disclosure could compromise the effectiveness of government. This decision strengthens the constitutional convention of Cabinet confidentiality and reaffirms its significance for preserving responsible government in our democratic society.

Facts

Ontario’s Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 [FIPPA] grants a right of access to information in the custody or control of government institutions subject to limited and specific exemptions (ss 1, 10). One such exemption pertains to Cabinet records “[whose] disclosure would reveal the substance of…[Cabinet] deliberations” (FIPPA, s 12(1)).

The Canadian Broadcasting Corporation (“CBC”) requested access to 23 mandate letters (the “Letters”) sent by Ontario Premier, Doug Ford, to his Cabinet Ministers in 2018. These Letters outline the Premier’s policy priorities as well as provide instructions and advice to each Minister to operationalize these priorities. The Cabinet Office declined the CBC’s request, claiming the Letters were exempt from disclosure under s 12(1) of the FIPPA (Ontario, para 5).

Procedural History

The CBC appealed the Cabinet Office’s decision to the Information and Privacy Commissioner of Ontario (“IPC” or the “Commissioner”). The IPC found that the Letters were not exempt and therefore ordered their disclosure (Ontario, para 6).

The Commissioner identified the purpose of s 12(1) as protecting “‘free and frank discussion among Cabinet members’” (Ontario, para 11). He held that the “‘substance of deliberations’” protected by s 12(1) included “‘deliberative communications occurring within’ Cabinet’s policy-making process, [but] not the ‘outcomes’ of that process (i.e. the decisions themselves) or mere ‘subjects’ or ‘topics’ of deliberation” (Ontario, para 12).

Applying this understanding, the Commissioner concluded that the Letters did not reveal the substance of Cabinet’s communications. Rather, the Letters more accurately represented an “‘end point’” or “‘the product’” of the Premier’s deliberations with his Cabinet (Ontario, para 13). The IPC held that the Letters were not protected by s 12(1) because, at most, they revealed topics or the subject matter of unspecified policies that may have arisen during Cabinet meetings (Ontario, paras 12-13).

On judicial review, the Ontario Divisional Court found that the IPC’s decision was reasonable, and a majority of the Ontario Court of Appeal agreed. Lauwers J.A., dissenting, would have found that the IPC’s decision was unreasonable because (among other things) it eroded the sphere of Cabinet privilege that s 12(1) seeks to preserve (Ontario, para 6).

The Attorney General of Ontario appealed to the SCC.

The Court’s Correct and/or Reasonable Decision

The sole issue at the SCC was whether the public should have access to the Letters (Ontario, para 15). The Court agreed to allow the appeal and to set aside the disclosure order but split on the applicable standard of review (“SOR”) producing this conclusion.

Writing for the six-judge majority, Karakatsanis J held that the IPC’s narrow interpretation and application of s 12(1) to the Letters was unreasonable (see Ontario, paras 7-8, 58, 64). Like the courts below, she proceeded with the more deferential reasonableness SOR for the IPC’s decision (Ontario, paras 18, 22). Noting Lauwers J.A.’s comments that correctness might be the applicable SOR instead of reasonableness given the constitutional overlay of the interpretive question being asked, Karakatsanis J believed it was unnecessary to resolve the issue because “the same conclusion follows regardless” (Ontario, para 16).

Karakatsanis J then took aim at the “narrow zone of protection for Cabinet deliberations created by the IPC’s interpretation and application of s 12(1)” (Ontario, para 16). She held that the IPC failed to adequately consider the broader legal and factual context of s 12(1), including constitutional conventions and traditions governing Cabinet confidentiality and the secrecy of Cabinet’s deliberative process (Ontario, para 21). This led the IPC “to an unreasonably narrow interpretation of s 12(1) and caused him to mischaracterize the Letters themselves” as being mere topics or outcomes rather than part of Cabinet’s deliberative process (Ontario, para 21).

As such, the majority held that the Letters were protected from disclosure by Cabinet confidentiality under s 12(1) of the FIPPA. They allowed the appeal and set aside the IPC’s order.

Côté J concurred in result but disagreed that the outcome followed regardless of the applicable SOR. She contended that a correctness review applied because the scope of Cabinet privilege was a general question of law of central importance to the legal system as a whole (Ontario, paras 65-71). She also critiqued the majority for not affording the degree of deference that the IPC’s decision would have normally attracted under a reasonableness review (Ontario, paras 75, 81-82). Nevertheless, Côté J concluded that the majority’s interpretation of the scope of Cabinet privilege and its conclusion that the Letters were exempt from disclosure under s 12(1) were agreeable because their analysis “involve[d] a de facto correctness review” (Ontario, paras 73-74, 83).

Analysis

I believe that the majority successfully balanced the “vital importance of public access to government-held information” with “Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity” (Ontario, para 61). Their discussion regarding the overriding interests in responsible and effective government spotlight the centrality of Cabinet confidentiality to the efficient functioning of our democracy (Ontario, paras 59-62).

That said, aspects of its decision are not without debate, as Côté J pointed out.

Correctness is the Appropriate Standard of Review

To begin, I believe Côté J was right to apply a correctness SOR.

In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the SCC held that reasonableness is the presumptive SOR of the merits of an administrative decision unless the legislature prescribes a different standard or where the rule of law requires correctness review (paras 10, 17).

One situation where the rule of law requires correctness review is when courts are asked “general questions of law of central importance to the legal system as a whole” (hereinafter, the “central importance exception”) (Vavilov, para 17). The rationale for this exception is the need to furnish uniform and consistent answers to these questions because of their importance for guiding the justice system and government institutions (Vavilov, para 59; Mason v Canada (Citizenship and Immigration), 2023 SCC 21, para 47 [Mason]).

Matters of statutory interpretation are generally reviewed for reasonableness (Vavilov, paras 115). The majority in Ontario conducted a reasonableness review because it did not wish to resolve the question of what the appropriate SOR was. However, Côté J believed that the answer was clear: the “constitutional overlay” of s 12(1) of the FIPPA—being the scope of Cabinet privilege—transformed this from a normal question of statutory interpretation into one that met the central importance exception and thus required correctness review (Ontario, paras 67, 71).

I agree with Côté J for the reasons that I explain below. I also add some points of clarification about when a constitutional overlay should attract correctness review.

A Constitutional Overlay Should Not Always Attract Correctness Review

It must be remembered that the mere presence of a constitutional overlay to a question of law does not turn it into a question of central importance to the legal system as a whole. The Court has explained that “[i]t is not enough for the question to ‘touc[h] on an important issue’ or to raise an issue of ‘wider public concern’” (Mason, para 47, quoting Vavilov, para 61).

Clearly, not all questions of law with a constitutional overlay will satisfy the central importance exception and necessitate a correctness review. The mere presence of a constitutional dimension is not sufficient by itself. Indeed, the rule of law is an omnipresent constitutional dimension for all questions of law, but Mason reaffirmed that there are only four situations where the rule of law demands correctness review (paras 39-43).

So, how do we know when the constitutional overlay to a question of law is of such significance that the central importance exception is activated and correctness review is required? A nuanced approach is needed to ascertain the strength of the constitutional dimension and its importance to the question being asked.

I submit that a constitutional overlay to a question of law presumptively leans in favour of applying the central importance exception in order to maintain the uniformity and consistency of the legal system as a whole. But this presumption is rebuttable by considerations that supersede or minimise the importance of the constitutional dimension to the question asked.

In measuring the strength of a constitutional dimension, I propose that the relevant considerations should include:

The nature and flexibility of the constitutional dimension. Can the constitutional dimension engaged be separated from the question raised? What role do the constitutional dimension and its animating features play within Canada’s larger constitutional order? Is the constitutional dimension evolutive?
The importance of the constitutional dimension to the integrity of Canada’s constitutional order. Where a constitutional dimension is present, does it require the question being asked to have a uniform and consistent answer? Would the integrity of Canada’s constitutional order, including the justice system and government institutions, be compromised by the non-uniform application of an answer to the question of law? Can the non-uniform application of an answer be reasonably and effectively remedied?
Countervailing considerations. Are there compelling reasons to not require that a question of law be answered uniformly in light of other constitutional considerations or the public interest?

None of these factors should independently outweigh the others. Instead, they must be balanced.

Indicators that the constitutional dimension is less central to the question of law and thus weigh against the central importance exception would thus include: if the constitutional dimension can be separated from the question of law asked; if the constitutional dimension is evolutive and therefore amenable to change; if the ills of refraining from uniformly applying an answer can be cured; or, if other aspects of Canada’s constitutional order demand flexibility in answering the question.

In the instance case, I agree with Côté J that correctness review was required by the nature and strength of the constitutional dimension engaged by the interpretive question surrounding s 12(1) of the FIPPA. The scope of Cabinet privilege was inseparable from the question of s 12(1)’s interpretation. Cabinet privilege is also a fundamental convention of our constitutional order, and its preservation “promotes candour, solidarity, and efficiency, all in aid of effective government” (Ontario, para 30). Moreover, Cabinet privilege is only somewhat evolutive. The confidentiality of Cabinet records has adapted to the right to freedom of information, but public access to government documents is far from absolute and many procedural guardrails exist to maintain secrecy.

Correctness review was also required because of the importance of Cabinet secrecy to the integrity of Canada’s constitutional order, as explained by the majority (for discussion, see Ontario, paras 27-40). Although the Court did not consider whether the Letters could have been disclosed with measures to protect Cabinet confidentiality, such as redacting them, I note that it is hardly an effective remedy if they needed to be redacted to the point of unintelligibility to be disclosed. The majority held that disclosing the Letters could compromise the effectiveness of government and the executive’s ability to formulate and implement its policies (see Ontario, para 53). It is possible that the Letters could have been redacted and then disclosed, but the inverse could also be true.

Finally, the countervailing considerations regarding the freedom of information do not outweigh the public’s interest in effective government.

For the above reasons, as well as her own, I believe Côté J was correct.

Conclusion

Some might feel that reasonableness was the appropriate SOR and that the majority should have given greater deference to the IPC (i.e., Paul Daly’s blog post). Côté J even found the majority’s lack of deference to the IPC’s decision in conducting reasonableness review to be “concern[ing]” (Ontario, para 75; also see paras 74-82). But even if the SOR was reasonableness, the Court ostensibly agreed that there was only one reasonable/correct interpretation of s 12(1) of the FIPPA (Ontario, paras 63, 83). Concerns about deference aside, the outcome was the right one.

Others may disagree that the Court gave sufficient attention to the freedom of information and the public’s interest in government transparency (i.e., the Canadian Civil Liberties Association’s press release). I don’t disagree that greater engagement by the Court on this point would have been preferable. That said, the public’s need to know must be balanced with effective government, and the latter should remain paramount where the disclosure of Cabinet records would threaten it.

Ultimately, Cabinet confidentiality remains one of the last vestiges of executive supremacy and is a keystone of our Westminster system. This decision reaffirms and strengthens that constitutional tradition. It will be interesting to see how this case impacts invocations of Cabinet privilege by the federal, provincial, and territorial executive. Those future instances will provide the Court with another opportunity to clarify any uncertainties.