Executive Summary: Key legal and evidentiary issues

• Whether the adjudicator failed to properly consider Charter rights, particularly freedom of expression under section 2(b)

• Adequacy of procedural fairness where a statutory ground (section 21(3)(d)) was relied upon without prior notice

• Reasonableness of the decision under the principles of judicial review

• Proper application of the public interest override under section 23 of the Freedom of Information and Protection of Privacy Act

• The extent to which Doré/Loyola balancing was required and whether it was performed

• Whether the adjudicator’s failure to engage with the Charter rendered the decision unreasonable

Facts of the case

Tom Cardoso, a reporter for The Globe and Mail, submitted an access to information request under the Freedom of Information and Protection of Privacy Act (FIPPA) to the Law Enforcement Complaints Agency (LECA), formerly the Office of the Independent Police Review Director. He requested information on complaints against police officers over a ten-year period, including the names and badge numbers of officers involved. LECA provided a spreadsheet with approximately 40,000 entries but withheld the names and badge numbers, citing privacy exemptions under FIPPA. Cardoso appealed to the Information and Privacy Commissioner (IPC).

During the IPC appeal process, Cardoso raised public interest considerations under section 23 of FIPPA and referenced the Supreme Court of Canada’s decision in Criminal Lawyers’ Association to highlight the relevance of Charter section 2(b) rights to his request. The IPC adjudicator ultimately upheld LECA’s decision to withhold the names and badge numbers, relying in part on section 21(3)(d), which was not cited in the initial notice to Cardoso. The adjudicator also dismissed the Charter argument on procedural grounds, noting the lack of a formal notice of constitutional question.

Outcome

The Divisional Court found that the IPC adjudicator failed to properly consider Charter rights and values, specifically freedom of expression under section 2(b). The court ruled that the adjudicator’s approach, which focused on procedural deficiencies rather than substantive engagement with the Charter, was an error that rendered the decision unreasonable. The court also identified some merit in the argument that Cardoso had not been given proper notice regarding the reliance on section 21(3)(d), though this was not determinative given the primary Charter issue. The court quashed the IPC decision and ordered that the matter be reheard by a new adjudicator, with both parties entitled to make fresh submissions. No order as to costs was made.