OCCPS submits that:

The records remaining at issue were either sent to OCCPS by the [Police] or were sent from OCCPS to the [Police].  The [Police are] an institution subject to the Municipal Freedom of Information and Protection of Privacy Act [the municipal Act] . . . [T]he records remaining at issue would fall within the scope of section 52(3)1, the [municipal Act] equivalent of section 65(6)1 of [the Act], should the appellant’s request have been directed to the [Police].

In my view, it is not possible simply to apply the provisions of the municipal Act to a request made to OCCPS, which is an institution under the Act rather than the municipal Act.  Rather, the question is whether the word, “institution” in section 65(6) can encompass an institution under the municipal Act.

In Order P-1560, Adjudicator Holly Big Canoe faced the same question.  She found that the meaning of the word “institution” in section 65(6) of the Act should be extended to include a municipal institution under the municipal Act.  She considered it necessary to go beyond the plain words of the Act which do not include municipal institutions in order to avoid an “absurd result”.  In reaching this conclusion, Adjudicator Big Canoe stated in part:

In the present case, if the [Ontario Labour Relations Board (OLRB)] had exercised its discretion to transfer the request to the [Hamilton-Wentworth District School Board (HWDSB)], it is clear that the section 52(3) exclusion in the municipal Act would be available, as found by Inquiry Officer Higgins in Order M-962.  The only difference between the facts in Order M-962 and the present case is that the institution receiving the request exercised its discretion not to transfer the request.

These different outcomes may be regarded as an “absurd” result, as that term is understood in law.  Driedger in Driedger on the Construction of Statutes (3rd edition, 1994 (Butterworths) at page 79) says “consequences judged to be unjust or unreasonable are regarded as absurd.”  There are different categories of absurdity, including:

Irrational distinctions.  A proposed interpretation is likely to be labelled absurd [if it] would result in persons or things receiving a different treatment for inadequate reasons, or for no reason at all.  This is one of the most frequently recognized forms of absurdity.

In my view, the Act and the municipal Act are intended to function as a single, coherent, logical legislative scheme, with certain express distinctions based on variations in how local and provincial government operate.  For example, there is an exemption for “closed meetings” in the municipal Act and a “Cabinet records” exemption in the Act.  As well, Part I of the Act, which sets out the administration of the office of the IPC is not repeated in the municipal Act, because they are meant to be read together.

If the Act and the municipal Act are to be read together as a coherent scheme, would the Legislature intend that the section 65(6) exclusion would be available to the OLRB when the employer is a provincial institution, but not available when the employer is a municipal institution?  In my view, the question arises whether a municipal institution can be considered as an institution for the purposes of section 65(6) of this Act.

The word “institution” is defined in section 2(1) of the Act as follows:

“institution” means,

            (a)        a ministry of the Government of Ontario, and

            (b)        any agency, board, commission, corporation or other body designated as an institution in the regulations.

According to Pierre-André Coté, in The Interpretation of Legislation in Canada, definitions can be inclusive or exhaustive:

A first reading is usually sufficient to indicate whether a definition is exhaustive or not: if it is introduced by the word “means” it is deemed to be exhaustive.  But a definition introduced by the word “includes” serves only to extend the ordinary meaning or to illustrate certain applications.

Accordingly, it appears that the definition of the word “institution” in the Act was intended to be exhaustive.  Additionally, when the municipal Act became law, the Legislature amended sections 25, 39, 41, 50 and 58 specifically to refer to the municipal Act.  There is no indication that the Legislature intended that municipal institutions be included in the Act except to the extent that the municipal Act is specifically referenced in the Act.  However, at the time the municipal Act became law, section 65(6) was not included in the Act.  In my view, it is arguable that had section 65(6) been in the Act at the time the municipal Act became law, additional amendments may have been made.

If the institution receiving the request uses section 25 to transfer the request to another institution with a greater interest in the records, the “different treatment for inadequate reasons” can be avoided.  In my view, the situation reviewed by Inquiry Officer Higgins in Orders P-1422 and M-962 is a clear example of how the Act and the municipal Act work in harmony.  However, the use of section 25 is discretionary.  In my view, the Legislature could not have intended that a question of jurisdiction would be determined by the whim of the institution receiving the request, and I disagree with Inquiry Officer Higgins’ finding in Order P-1422 that, where the employer is an institution under the municipal Act, but not an institution for the purposes of section 65(6) of the Act, the fact that the employer may have received (and hence “collected”, “used”, etc.) some of the records is irrelevant for the purpose of deciding whether section 65(6) applies.

If the meaning of “institution” in section 65(6) was extended to include institutions as defined in the municipal Act, both provincial and municipal government employers providing records to the OLRB would enjoy the “protection” of that provision.  Inconsistent treatment between them is avoided.  In my view, this interpretation is more consistent with the Legislature’s approach to exclusions in the rest of section 65, which are not location specific but record specific.  Accordingly, I find that, in the circumstances of this appeal, the meaning of the word “institution” in section 65(6) should be extended to include the HWDSB, an institution under the municipal Act.  As a result, the OLRB records which were sent by or to the HWDSB are excluded from the scope of the Act.  The remaining records, however, do not qualify for exclusion under section 65(6), and the OLRB must make a decision respecting the appellant’s access to them under the Act.

Applying Adjudicator Big Canoe’s analysis to this case results in the conclusion that the Police are an institution for the purposes of section 65(6) of the Act.

I agree and find that the Police qualify as an “institution” under section 65(6) of the Act.

Requirement 1: collected, prepared, maintained or used

With reference to section 65(6)3, the Ministry submits that:

… OCCPS staff collected, prepared, maintained and/or used the information in the records at issue in relation to meetings, consultations, discussions or communications in respect to the complaint under the PSA [Police Services Act] filed by the appellant.

As noted above pages 1, 2, 27, 44, 50 and 51 are OCCPS facsimile transmission pages and pages 3, 5, and 49 are OCCPS correspondence.  The portion of page 8 that remains at issue is found in the Case Summary of the OCCPS Public Complaints Review Panel.  The Ministry submits that this information was “derived” from the Police PSA complaint file.  I find that all of the records were sent by OCCPS to the Police.  On this basis, I am satisfied that the records at issue were collected by the Police.  I therefore find that Requirement 1 has been satisfied.

Requirement 2 - meetings, consultations, discussions or communications

Based on my review of the records, the PSA, the submissions of the Ministry, the statutory scheme governing OCCPS proceedings and the fact that the records were sent to the Police and, in the case of the portion of page 8, contain information provided by the Police to OCCPS, I am satisfied that the collection and/or preparation, maintenance and use of the records by the Police was in relation to communications between OCCPS and the Police.

Accordingly, I find that requirement 2 has been met.

Requirement 3 - labour relations or employment-related matters in which the institution has an interest

In its representations, OCCPS states:

. . . [I]nformation supplied by or sent to the [Police] in its capacity as employer of the involved police officer is excluded.

The question of whether police officers are engaged in “employment” within the meaning of this section was canvassed in considerable detail by Adjudicator Laurel Cropley in Order M-899.  Based on a number of provisions of the Police Services Act, she concluded that, whether or not police officers are “employees” at common law, they are clearly engaged in “employment” in the eyes of the Ontario legislature.

I agree, and accordingly, I have concluded that disciplinary matters involving police officers are “employment-related” matters for the purposes of section 65(6)3 of the Act.  Therefore, I find that the communications referred to under requirement 2 were “about” employment-related matters.

Therefore, what remains to be determined is whether they have the requisite “interest”. 

It is clear from the factual context of this appeal that the officer in question was an officer with the Police.  As noted in Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355, leave to appeal refused [2001] S.C.C.A. No. 509, an interest “must relate to more than a mere curiosity or concern”, and restricts the application of section 65(6)3 to records relating to an institution’s “own workforce”.  I am satisfied that these requirements are met in this case, and I find that the Police have the requisite “interest”.  Requirement 3 is therefore met.

As all three requirements are met, I find that the records are excluded from the scope of the Act under section 65(6)3.

Accordingly, it is not necessary to consider whether section 65(6)1 applies.

ORDER:

I uphold the decision of the Ministry that the Act does not apply to the records at issue and I dismiss the appeal.

Original Signed By:                                                                             December 14, 2006                

Steven Faughnan