Supreme Court of Canada Rules that Ford Government Mandate Letters are Exempt from Disclosure

On February 2, 2024, the Supreme Court of Canada (“SCC”) ruled that Ontario Premier Doug Ford’s mandate letters issued to his cabinet ministers in 2018 are exempt from public disclosure.[1]

Under Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”), members of the public can receive access to documents under the control of public-sector institutions.[2] Examples of public-sector institutions include Ontario government ministries, colleges and universities. For a fee of $5, anyone can make a Freedom of Information (“FOI”) request. However, FIPPA lists several exemptions for documents that cannot be disclosed. Specifically, Section 12(1) exempts provincial Cabinet records.

The SCC found that Section 12(1) applies to Premier Ford’s mandate letters. This article will provide context surrounding the letters, trace the lengthy legal battle within our court system, and discuss the overall implications of such a decision.

Background

When Premier Ford’s Progressive Conservative government first took office in 2018, 23 mandate letters were issued to each of his various Cabinet ministers. A mandate letter provides information on policy and the ministers’ various responsibilities. Shortly after the election, a CBC journalist made an FOI request for Premier Ford’s letters, which the Ontario government denied under Section 12(1) of FIPPA.[3]

Thus began a six-year legal battle. It all started when the CBC appealed the original denial to the Ontario Information and Privacy Commissioner (“IPC”). The IPC sided with the news outlet and ruled that the mandate letters were not exempt under FIPPA. As the IPC put it, Section 12(1) only exempts Cabinet policy deliberations but not the outcomes of these discussions. For the IPC, the mandate letters fell into the latter category. Soon after the decision, the Attorney General of Ontario (the “AGO”) asked the Divisional Court to review the IPC decision, which later upheld the IPC’s ruling.

The Divisional Court’s decision was appealed to the Ontario Court of Appeal. The Ontario Court of Appeal also decided in favour of disclosure. Eventually, the AGO appealed to the SCC, which held its hearing in April 2023.

The Court’s Decision

In its majority decision, Justice Karakatsanis noted the requirement to balance the goals of the public’s need to know and the confidentiality the Cabinet requires to govern effectively.[4]

In terms of the mandate letters, Justice Karakatsanis wrote that FIPPA’s text, purpose and context side in favour of the Section 12(1) exemption. They also wrote that the letters reveal “the substance of Cabinet deliberations, both on their face and when compared against what government actually does”.[5] Although the mandate letters were not necessarily part of a formal Cabinet meeting, the letters represent the initiation of discourse, agenda-setting, and include policy considerations that requiring further discussion. As such, they are not necessarily the end-product of internal discourse.[6]

Effectively, the SCC’s interpretation differed from that of the IPC and lower courts, which opined that the mandate letters were not indicative of ongoing political deliberation and lacked protection from disclosure. Instead, the SCC found that the IPC “failed to give meaningful weight” to the “fluid, dynamic nature of the Cabinet decision-making process” and deemed its interpretation of FIPPA as “narrow”.[7]

Takeaways

The SCC’s decision provides a stronger reinforcement of Section 12(1) of FIPPA and stresses both its broad coverage and its underlying purposes: protecting the values of efficiency, candour, and solidarity, as well as the Ontario Cabinet’s secrecy. As per the SCC, its secrecy’s “core purpose” is to allow for effective government.[8]

The SCC’s decision may represent a limitation to members of the public seeking to exercise their freedom of information. For those wishing for more transparency and accountability, a broader interpretation of Section 12(1) may appear to overextend its protective reach. Concurrently, individuals may find it encouraging that the Cabinet can retain a degree of privacy in its work, unfettered by the risk of unwanted disclosure. Regardless of opinion, the SCC’s decision on where Cabinet records land on the spectrum between public access and government confidentiality will provide dialogue on its future implications.

For more information, please contact Roland Hung of Torkin Manes’ Technology and Privacy & Data Management Groups.

The author would like to acknowledge Torkin Manes Articling Student Herman Wong for his invaluable contribution in drafting this bulletin.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.