⚖️ Cabinet confidence

Doug Ford gets to keep mandate letters under wraps, but why did the SCC refuse to pick a standard of review? Plus, incoming Quebec laws to promote French streaming content, extending the foreign home buyer ban, and a 7-year practice suspension for a lawyer's multi-million dollar misappropriation

Howdy. Apple Vision Pro dropped last week and it sure looks nifty. What a time to be alive.

— Dylan Gibbs

TODAY'S DOCKET

5 min read

  • Ontario doesn’t need to disclose mandate letters

  • Why did the SCC refuse to pick a standard of review?

  • Promoting French streaming content

  • Foreign home-buying ban gets extended

  • Lawyer nets lengthy suspension for his multi-million dollar misappropriation

FREEDOM OF INFORMATION

Disclosing Ford’s policy objectives would intrude on Cabinet confidence

Cartoon of a man resembling Doug Ford sitting on a pile of documents. He has an elated and celebratory expression.

AG Ontario v. Ontario (Information and Privacy Commissioner), 2024 SCC 4

The Supreme Court ruled that mandate letters are exempt from freedom of information legislation, securing privacy for the marching orders Doug Ford gave his Cabinet members in 2018. At least, it would have secured their privacy … if someone hadn’t leaked them to the press already.

Prime ministers and premiers use mandate letters to spell out policy objectives, typically after an election or a Cabinet shuffle. Leaders now routinely disclose those letters to the public. Not Ford, though — that’s not how he rolls. Ford kept his mandate letters under wraps.

Following an information request, Ontario’s Information and Privacy Commissioner ordered the province to disclose Ford’s mandate letters to CBC. On Friday, the Supreme Court said that decision was unreasonable.

Cabinet records get special treatment. Every Canadian freedom of information statute protects Cabinet records — most using similar language: governments don’t need to disclose records that would reveal the “substance of [Cabinet] deliberations”.

  • For the Commissioner, mandate letters didn’t fit the bill. He said mandate letters are an end product of the premier’s thought process — they tell us how the premier feels about certain policy objectives, but they don’t reveal anything about confidential discussions between Cabinet members.

  • The Supreme Court said the Commissioner didn’t appreciate the importance of Cabinet confidentiality to effective government, which led to an unreasonably narrow approach.

More revealing than you think: The Court said mandate letters do reveal the substance of Cabinet deliberations — at least when pieced together with other information. Say, for example, Ford gave one of his ministers a list of three priorities. The province announced priority A to the public, announced priority B a few months later, and dropped priority C before the public even heard about it.

  • Without the mandate letter, all the public knows is that the province pursued priorities A and B.

  • With the mandate letter, the public learns the province delayed announcing priority B and dropped priority C. According to the Court, those insights reveal the substance of Cabinet deliberations — even though the public can’t figure out exactly what was said, or who said it.

The public, reverse engineering Cabinet deliberations from mandate letters:

Screenshot of Charlie from It's Always Sunny in Philadelphia. He's in front of a wall of papers connected by red string. He has a frantic/crazed look in his eyes.

It's Always Sunny in Philadelphia/FX

Copping out on standard of review

Depending on who you ask, the Cabinet confidence issue may not have even been the main event in this case. For the second time in recent memory, the majority refused to pick a standard of review, saying the standard of review wouldn’t change the result.

Why the majority’s reluctance? For whatever reason, Ontario conceded the standard of review was reasonableness. The Court technically wasn’t bound by that concession, but the Court tends to avoid deciding issues the parties haven’t fully argued.

Paying lip service: Justice Côté wrote concurring reasons criticizing the majority’s approach — in her view, the Commissioner’s decision was incorrect but not unreasonable. She reached the same result as the majority by reviewing the Commissioner’s decision for correctness. She said the scope of Cabinet privilege is the type of centrally important question that demands a correct answer.

A principled approach to reasonableness review is one which puts the administrative decision maker’s reasons first. “The role of courts . . . is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves”. Reviewing judges are not to fashion their own yardstick and then use that yardstick to measure what the decision maker did.

With respect, my colleague fails to apply this methodology in practice. She conducts her own interpretation of s. 12(1), and of the importance and nature of Cabinet privilege, and then measures it against that of the Commissioner. The fact that my colleague would have reached a different conclusion than that of the Commissioner does not make the Commissioner’s decision unreasonable.

Justice Côté, paras 73-74

HEARSAY ROUNDUP

Canadiana

🎙️ Quebec wants to regulate digital streaming platforms to boost the amount of French content. A government-appointed committee recommended laws that would create a “fundamental right to access and discover original cultural content in French”. That might include quotas for French content and rules forcing algorithms to steer users toward French content.

🏡 The federal government is extending the ban on foreign home buying. The ban would have expired on January 1, 2025, but the two-year extension pushes the expiry to January 1, 2027.

🚨 Courthouse security is making headlines again after a BC prosecutor was assaulted near a provincial courthouse in Vancouver. Police indicated the attack seems to have been random, but it’s still prompting calls to improve safety for justice system participants.

🗞️ Dominique Ollivier, former chair of Montreal’s executive committee, is suing Québecor media for publishing a one-sided story about her handling of expenses. She’s claiming damages of $1.6 million, alleging that errors and omissions turned the publication into a smear campaign.

💰 A BC lawyer agreed to a 7-year suspension after his gambling addiction drove him to misappropriate over $8 million from clients. He shuffled most of the money from one client account to another — like a Ponzi scheme — but $2 million disappeared entirely.

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