Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of “custody or control” under section 4(1) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)

• Determination of whether records held by the Integrity Commissioner are within the Toronto District School Board’s (TDSB) custody or control

• Assessment of whether the TDSB conducted a reasonable search for the requested records

• Applicability of the reasonableness standard in judicial review of an IPC decision under the Vavilov framework

• Evaluation of procedural fairness in the Information and Privacy Commissioner’s refusal to merge two related access to information appeals

• Court's analysis of the independence and investigatory role of the Integrity Commissioner in relation to the TDSB

Facts and background

Robert Michael Teper, a member of the public, filed a request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) seeking access to records relating to an investigation conducted by the Integrity Commissioner (IC) of the Toronto District School Board (TDSB). The investigation concerned allegations of harassment and discrimination by a TDSB Trustee. The IC had retained an independent investigator to assist with the inquiry.

Teper requested access to several records, including the investigator’s report, the retainer agreement, social media posts made by the investigator, and internal TDSB correspondence regarding the selection of the investigator. The TDSB denied the request, stating that the records were not in its custody or control but rather with the IC, who operates independently. Teper appealed this decision to the Information and Privacy Commissioner of Ontario (IPC), which dismissed his appeal in Order MO-4777, finding that the records were not under the TDSB’s custody or control and that the Board conducted a reasonable search.

Teper sought judicial review of the IPC’s decision, arguing that the IPC had erred in its interpretation of MFIPPA and had denied him procedural fairness by refusing to merge this appeal with a related one.

Court’s reasoning on custody or control

The Divisional Court affirmed that under section 4(1) of MFIPPA, a person has a right of access to records only if they are in the custody or under the control of an institution. The Court emphasized that the TDSB qualifies as an institution but noted that the IC operates independently under the Board’s policy structure. The key question was whether the TDSB could reasonably be expected to obtain a copy of the records, even if they were created by the IC.

Applying the two-part test from Canada (Information Commissioner) v. Canada (Minister of National Defence), the Court found that although the contents of the documents related to a Board matter, the Board could not reasonably be expected to obtain a copy because of the independent nature of the IC’s work. The Court found the IPC’s conclusion to be reasonable, especially given the IC's structurally independent role and the importance of preserving impartiality in trustee misconduct investigations.

Assessment of reasonable search

The Court also upheld the IPC’s finding that the TDSB had conducted a reasonable search for any records within its custody or control, particularly those concerning the investigator’s social media posts and related correspondence. The IPC had considered the relevant legal framework and found the Board’s efforts sufficient.

Procedural fairness and refusal to merge appeals

Teper argued that the IPC’s decision not to consolidate his two appeals was procedurally unfair. The Court rejected this argument, noting that administrative tribunals have broad discretion in managing their procedures. The IPC had a legitimate basis for declining the merger, including differences in the records requested and the involvement of a third party in the second appeal. The Court found no denial of procedural fairness.

Outcome

The Divisional Court dismissed Teper’s application for judicial review. It concluded that the IPC’s decision was reasonable, supported by the record, and met procedural fairness requirements. Costs of $7,500 were awarded to the TDSB, payable by Teper.