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

  • 27 février 2024
  • Roland Hung, Torkin Manes

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.