RECONSIDERATION ORDER MO-4579-R

Appeal MA22-00233

Town of Aurora

Order MO-4512

October 15, 2024

Summary: An individual submitted a request for reconsideration of Order MO-4512, which upheld the town’s decision to disclose some portions of building permit application records relating to their address. The individual claimed that there was a fundamental defect in the adjudication process, a jurisdictional defect in the decision and/or a clerical error, accidental error or omission or other similar error in the decision. In this reconsideration order, the adjudicator finds that none of the grounds under section 15.01 of the IPC’s Code of Procedure for reconsideration has been established and denies the request for reconsideration.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, section 17; IPC Code of Procedure, sections 15.01(a), (b) and (c).

Orders Considered: Orders PO-2358-R, PO-3062-R, MO-4260.

Cases Considered: Chandler v. Alberta Assn. of Architects (1989), 62 D.L.R. (4th) 577 SCC.

OVERVIEW:

[1] This reconsideration order arises from a request to reconsider Order MO-4512.

[2] Order MO-4512 resolved an appeal from an access decision made by the Town of Aurora (the town) under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) in response to a request for access to records related to building permit applications for two specified addresses.

[3] Before deciding to disclose the records, in part, the town notified two affected parties who might have an interest in the disclosure of the records. One of the affected parties objected to the town’s decision to disclose the portions of the records relating to his address specified in the request. This affected party (now the appellant) appealed the town’s decision to the Information and Privacy Commissioner of Ontario (IPC). The requester did not appeal the town’s decision to withhold portions of the records.

[4] In Order MO-4512, I upheld the town’s decision to grant partial access to the records related to the appellant’s address.

[5] After Order MO-4512 was issued, the appellant contacted the IPC to convey that he believed there was a fundamental defect in the adjudication process, a jurisdictional defect in the decision and/or a clerical error, accidental error or omission or other similar error in the decision. The appellant requested that the order be reconsidered.

[6] For the reasons that follow, I find that the appellant has not established that there are grounds under section 15.01 of the Code of Procedure to reconsider Order MO-4512. I deny the reconsideration request.

DISCUSSION:

[7] The sole issue in this appeal is whether there are grounds under section 15.01 of the IPC’s Code of of Procedure (the Code) to reconsider Order MO-4512.

[8] Under the common-law principle of functus officio, once a decision-maker has determined a matter, they do not have jurisdiction to consider it further. However, in Chandler v Alberta Assn. of Architects,[1] the Supreme Court of Canada said that while “there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals,” an administrative decision could be reopened in certain circumstances.[2]

[9] On September 9, 2024, the revised Code came into effect. Section 15.01 of the Code summarizes the common law position, acknowledging that a decision-maker has the ability to re-open a matter to reconsider it in certain circumstances. It says:

15.01 IPC decisions are final. The IPC may only reconsider an order or other decision where it is established that there is:

(a) a fundamental defect in the Adjudication process;

(b) a jurisdictional defect in the decision; or

(c) a clerical error, accidental error or omission or other similar error in the decision.

15.02 The IPC will not reconsider a decision simply on the basis that:

(a) new evidence is provided, whether or not that evidence was available at the time of the decision; or

(b) a Party disagrees or is dissatisfied with the result.

[10] For me to reconsider Order MO-4512, the appellant’s request must fit within one of the three grounds for reconsideration in section 15.01 of the Code.[3]

[11] The appellant claims that there was a fundamental defect in the adjudication process (section 15.01(a)), a jurisdictional defect in the decision (section 15.01(b)) and/or a clerical error, accidental error or omission or other similar error in the decision (section 15.01(c)).

[12] Section 15.01(a) of the Code specifies that the IPC may reconsider an order where it is established that there is a fundamental defect in the adjudication process. Past orders have found that various breaches of the rules of natural justice respecting procedural fairness will qualify as a fundamental defect in the adjudication process for the purpose of section 15.01(a).[4] Examples of such breaches would include a failure to notify an affected party,[5] or to invite sur-reply representations where new issues or evidence are provided in reply.[6] Although the appellant relies on section 15.01(a), he does not state or explain the nature of the fundamental defect in the adjudication of his appeal that he claims occurred. On my review of the adjudication process, I find no evidence of a breach of the rules of natural justice relating to procedural fairness.

[13] Section 15.01(b) relates to whether an adjudicator has the jurisdiction under the Act  to make the order in question. An example of a jurisdictional defect would be if an adjudicator ordered a body that is not an institution under the Act  to disclose records. As with section 15.01(a), the appellant does not state or explain why I do not have jurisdiction under the Act  to make the order made in Order MO-4512. From my review of Order MO-4512, I find no evidence of a jurisdictional defect with respect to the order I made in that decision.

[14] Section 15.01(c) refers to a clerical error, accidental error or other similar error in the decision. A clerical error, accidental error or other similar error would commonly be a typographical error in the decision or a misplaced word, such as “not”, in the decision. It is an error that generally originates with this office rather than with a party and is usually obvious to the reader. The appellant again does not state what is the clerical error, accidental error or other similar error in Order MO-4512. From my review of Order MO- 4512, I find no evidence of a clerical error, accidental error or other similar error.

[15] The reconsideration process in section 15 of the Code is not intended to provide parties who disagree with a decision a forum to re-argue their case[7] – whether or not they made those arguments during the inquiry.[8] In other words, even if a party disagrees with an adjudicator’s interpretation of the facts or the legal conclusions drawn in a decision,[9] the reconsideration process is not meant as a chance to convince the adjudicator to make a different decision.

[16] Accordingly, I find that the appellant has not established that grounds under any of sections 15.01(a), (b) or (c) are present to require reconsideration of Order MO-4512.

[17] In my view, the appellant’s reconsideration request repeats the arguments he made during the adjudication stage of the appeal. Specifically, the appellant is unhappy with my reliance on Order PO-1998.[10] In his reconsideration request, he argues that Order MO-4512 was “not based on any law, statute or stipulation in writing […] but just based on some discretion from a retired Assistant Commissioner’s opinion which is just one person’s opinion.” His reference to a “retired Assistant Commissioner” is reference to former Assistant Commissioner Tom Mitchinson who was the adjudicator in Order PO- 1998. Moreover, the appellant alleges that there is a systemic bias within the IPC due to the IPC’s reliance on Order PO-1998. He does not elaborate on this allegation.

[18] In his representations submitted during the inquiry into the appeal, the appellant alleged that the town is biased because it refuses to disclose the identity of the requester but has decided to disclose some information about the appellant’s property. In Order MO-4512, I adopted the reasoning applied in Order PO-1998 to refute the appellant’s allegation. At paragraph 44 of Order MO-4512, I explained that adopting the approach in Order PO-1998 in not disclosing the identity of the requester the town was following the principle of the Act  that the identity of the requester is their own personal information and cannot be disclosed without their consent. I found that this did not establish evidence of bias.

[19] In any event, the disclosure of the requester’s identity was not an issue before me in Order MO-4512 as the issue in that appeal was whether the mandatory personal privacy exemption in section 14(1)  of the Act  applies to the building permit applications relating to the appellant’s property.[11] In Order MO-4512, I found that the information about the appellant’s property is not personal information of an identifiable individual. The appellant disagrees.

[20] As noted above, section 15.02(b) of the Code stipulates that the IPC will not reconsider a decision simply on the basis that a party disagrees or is dissatisfied with the result. In my view, the appellant’s disagreement with my decision forms the basis of his request for reconsideration of Order MO-4512.

[21] In summary, I find that the appellant has not established that there was a fundamental defect in the adjudication process (section 15.01(a)), a jurisdictional defect in the decision (section 15.01(b)), and/or a clerical error, accidental error or omission or other similar error in the decision (section 15.01(c)). As none of the relevant grounds for reconsideration under section 15.01 of the Code have been established, I therefore deny the appellant’s reconsideration request.

ORDER:

1. I deny the appellant’s reconsideration request.
2. I uphold the town’s decision to disclose copies of the redacted records to the requester, in accordance with its original decision, by November 19, 2024 but not before November 12, 2024.
3. To verify compliance with provision 2, I reserve the right to require the town to provide me with a copy of the records disclosed to the requester upon request.

Original Signed by:		October 15, 2024
Lan An
Adjudicator