RECONSIDERATION ORDER PO-4642-R

Appeal PA22-00061

Ministry of Health

Order PO-4591

April 17, 2025

Summary: The appellant submitted a request for reconsideration of Order PO-4591, which upheld the ministry’s decision to deny access to OHIP investigation records about a potential billing concern. Order PO-4591 held that section 49 (a) of the Act , allowing the ministry to refuse the appellant access to his personal information, read with section 14(1)(c), allowing the ministry to refuse to disclose records that could reveal investigative techniques or procedures, applied to the OHIP investigation records.

The appellant argues that there was a fundamental defect in the adjudication process because the ministry did not specify which part of section 14(1) it relied on to withhold the records or provide evidence of an ongoing law enforcement investigation, and because his representations were not considered before Order PO-4591 was issued.

The adjudicator allows the reconsideration of Order PO-4591, which erroneously states that the appellant did not submit representations. As the appellant’s representations were not considered in Order PO-4591, the adjudicator finds that there was a fundamental defect in the adjudication process.

The adjudicator considers the appellant’s representations, which do not address section 14(1) (c) of the Act , and she finds that they do not affect the result in Order PO-4591. The adjudicator confirms her finding in Order PO-4591 that section 49(a), read with section 14(1)(c), applies to the withheld records.

Statutes Considered: Freedom of Information and Protection of Privacy Act , RSO 1990, c F31, sections 14(1) (c) and 49 (a); IPC Code of Procedure, section 15.01(a).

Orders and Investigation Reports Considered: Order PO-4591.

Cases Considered: Chandler v Alberta Association of Architects, 1989 CanLII 41 (SCC).

OVERVIEW:

[1] This appeal arises from a request to reconsider Order PO-4591, issued January 16, 2025, by the Information and Privacy Commissioner of Ontario (IPC).

[2] Order PO-4591 addressed the appellant’s right of access, under the Freedom of Information and Protection of Privacy Act  (the Act ), to records of an investigation into his Ontario Health Insurance Program (OHIP) billing practices. The Ministry of Health (the ministry) denied the appellant access to the OHIP investigation records under section 49(a) (discretion to refuse requester’s own information) read with the discretionary law enforcement exemption in section 14(1)(c) (investigative techniques and procedures) of the Act . Order PO-4591 upheld the ministry’s decision to withhold the records.

[3] After receiving Order PO-4591, the appellant requested a reconsideration of it. He submitted that Order PO-4591 did not address his representations, resulting in a fundamental defect in the adjudication process. The appellant also submitted that a reconsideration was warranted because the ministry had not specified which part of section 14(1) of the Act  it relied on and had not provided evidence of an ongoing law enforcement investigation.

The IPC’s Director of Adjudication conducted an initial review of the reconsideration request. She found that the appellant had made a clear case that there are grounds under section 15.01[1] of the IPC’s Code of Procedure[2] (the Code) to permit the reconsideration request to proceed.[3] The reconsideration was then assigned to me to determine if the grounds for reconsideration are established.[4]

For the reasons that follow, I allow the reconsideration request. In this order, I consider the appellant’s representations, which do not address section 14(1)(c) of the Act and do not affect my finding in Order PO-4591. I confirm my finding in Order PO-4591.

DISCUSSION:

The sole issue in this appeal is whether there are grounds under section 15.01 of the Code to reconsider Order PO-4591. Under the common-law principle of functus officio, once a decision-maker has determined a matter, she does not have jurisdiction to consider it further. However, in Chandler v Alberta Association of Architects,[5] 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.

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 reopen 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.

For me to reconsider Order PO-4591, the appellant’s request must fit within one of the three grounds for reconsideration in section 15.01 of the Code.

[4] Section 15.02 of the Code is also relevant since it addresses situations that do not establish grounds for reconsideration. It states:

15.01 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.

[5] 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. The appellant asserts that there was a fundamental defect in the adjudication process, substantively and procedurally.

[6] The appellant asserts that, substantively, the ministry did not provide evidence that a law enforcement investigation is in progress, and it did not specify which subsection of section 14(1) it relies on, and, therefore, the law enforcement exemption cannot apply. I do not accept that these assertions from the appellant establish a fundamental defect in the adjudication process within the meaning of section 15.01(a) of the Code. While the appellant may disagree with the finding in Order PO-4591, that section 49(a) read with 14(1)(c) of the Act  applies, his disagreement is not a basis for reconsideration, as stipulated in section 15.02 of the Code. The appellant’s representations, which I consider below, include arguments about these allegedly substantive defects. I address the appellant’s arguments, in paragraphs 15 to 18 below, despite my finding here that the appellant’s assertion of substantive defects does not establish any of the grounds for reconsideration under section 15.01 of the Code.

[7] The appellant asserts that, procedurally, Order PO-4591 erroneously states that he did not submit representations during the inquiry, and it does not consider his representations. The appellant explains that he submitted representations to the IPC in response to the Notice of Inquiry, followed by supporting documents that he submitted separately. I have reviewed the appellant’s communications with the IPC, and I confirm that he is correct – he did submit representations. He is also correct that his representations were not considered in Order PO-4591. This procedural error fits within the reconsideration grounds set out in section 15.01(a) of the Code. I accept that the appellant has established that there was a fundamental defect in the adjudication process because his representations were not considered before Order PO-4591 was issued. To remedy that fundamental defect, I consider his representations, below.

The appellant’s representations in Appeal PA22-00061

[8] The appellant’s representations in Appeal PA22-00061, submitted June 28, 2024, do not directly address section 14(1) (c) of the Act ; they address the law enforcement exemption generally, and sections 14(1)(a) and 14(1)(b) more specifically.[6] In his representations, the appellant asserts that the ministry has admitted there is no law enforcement investigation in progress. He submits that the criminal investigation commenced by the ministry was fatally flawed and was withdrawn as the material in support of the search warrant contained information that was false, incorrect or inadmissible. He claims that the Crown Attorney’s office concluded that there was no reasonable prospect of conviction, and the proceedings were terminated.

[9] The appellant argues that the admission by the ministry that the law enforcement proceeding has ended precludes any evidence or argument that the law enforcement exemptions claimed by the ministry are appropriate. The appellant argues that the ministry’s claim of the law enforcement exemption is inconsistent with established and binding jurisprudence of the Supreme Court of Canada. He cites the decision in Ontario (Public Safety and Security) v Criminal Lawyers’ Association[7] to argue that the first determination the ministry must make is whether disclosure could reasonably be expected to interfere with a law enforcement matter; he submits that there is no evidence the ministry followed this required analysis in applying the law enforcement exemption. The appellant asserts that disclosure of the records cannot reasonably be expected to interfere with a law enforcement matter when there is no such matter in progress. He concludes by asserting that there is no law enforcement exemption at issue and no discretion that the ministry may exercise to support the application of a discretionary exemption.

Analysis and findings

[10] I have reviewed the appellant’s representations carefully and there is nothing in them that addresses section 14(1)(c) even indirectly or that is relevant to the analysis and findings in Order PO-4591. The appellant’s representations are focused on sections 14(1)(a) and 14(1)(b), two law enforcement exemptions that were not addressed in Order PO-4591. While sections 14(1)(a) and 14(1)(b) require that a law enforcement proceeding exist for those exemptions to apply, section 14(1)(c) does not. The only requirement for the application of section 14(1)(c), as noted in paragraphs 15 to 17 of Order PO-4591, is a reasonable expectation that disclosure of the record could reveal investigative techniques and procedures currently in use or likely to be used in law enforcement. The appellant’s claim – that the ministry’s first determination must be whether disclosure could reasonably be expected to interfere with a law enforcement matter – reflects the test for the application of section 14(1)(a), which is the exemption that the Supreme Court of Canada refers to in paragraph 48 of its decision in Ontario (Public Safety and Security) v Criminal Lawyers’ Association that the appellant cites in his representations.

[11] The appellant also claims, in his representations, that the ministry “has never stated until recently that it relies on a discretionary exemption” and that that reliance is an afterthought that is “devoid of merit.” To the extent that the appellant’s representations argue that the ministry’s reliance on a discretionary exemption was late, I disagree. The ministry’s access decision of February 8, 2022, cited its reliance on the discretionary exemption in section 14(1) and attached a copy of the entire exemption. During the IPC’s mediation, the ministry confirmed that it relied on section 14(1)(c), in addition to section 14(1)(b); these two exemptions were included in the Mediator’s Report that set out the appeal issues that were sent to adjudication. As explained in Order PO-4591, the Notice of Inquiry sent to the parties included section 49(a) because the records contain the appellant’s personal information. The ministry relied on section 49(a) read with the law enforcement exemptions in sections 14(1) (b) and 14(1) (c) of the Act  in its representations. The appellant received a copy of the ministry’s non-confidential representations and was invited to respond to them and to the issue in the Notice of Inquiry, including Issue D on the application of sections 14(1) (b) and 14(1) (c) of the Act . Considering the section 14(1)(c) exemption was confirmed as an issue during IPC mediation and remained a live issue throughout adjudication, the appellant’s argument that the ministry claimed the exemption late is unfounded.

[12] Since the appellant’s representations are not relevant to section 14(1)(c), they are not relevant to Order PO-4591. I find that the appellant’s representations do not affect the analysis and findings in Order PO-4591.

Accordingly, while I find that the appellant has established the grounds under section 15.01(a) for a reconsideration of Order PO-4591, I find that his representations in Appeal PA22-00061, do not affect the determination in Order PO-4591 that the records are exempt from disclosure under section 49(a) ready with section 14(1) (c) of the Act .

I allow the appellant’s reconsideration request, but I uphold the findings in Order PO-4591.

ORDER:

1. I allow the appellant’s reconsideration request.
2. I uphold Order PO-4591.

Original Signed by:		April 17, 2025
Stella Ball
Adjudicator