Third Party Documents and MFIPPA
The Municipal Freedom of Information and Protection of Privacy Act (the “Act”) is an important piece of legislation as the public has the right under this Act to access documents within the possession of a municipality.
Section 4 of the Act gives the public the right to access documents in the custody or control of a municipality unless the records requested fall within one of the exemptions in the Act that protect the record from disclosure or the municipality is of the opinion the request is frivolous or vexatious.
One of the exemptions that is often engaged is the third-party records exemption under Section 10. This section reads:
10 (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;
(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or
(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.
For the third party exemption to apply, three requirements must be met. First, the type of document or information provided must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information. Second, the information must have been supplied to the institution in confidence, either implicitly or explicitly. Third, there must be a reasonable expectation of harm resulting from disclosure of the record.
A common example that engages this exemption is engineering sketches or surveys provided to a Municipality as part of a planning application. This type of document has been found to meet the first requirement because they constitute “technical drawings”. Whether or not these documents can be disclosed largely turns on whether they were supplied in confidence. Often these documents are provided as part of public planning processes and thus there is no expectation of confidentiality. However, it is important to review the documents, as often they contain language indicating they are protected from being disclosed without the permission of the third party, which has been held to meet the confidentiality requirement. Whether the third requirement is met, a reasonable expectation of harm, will depend on the circumstances of a particular application and the nature of the documents.
MFIPPA requests and whether the exemptions apply can quickly become a complex issue and it is important to be mindful that (i) the public has a legislative right of access to documents and (ii) that there are stringent requirements for the exemptions to apply. The provision of documents under MFIPPA can quickly create risk of litigation before the Information and Privacy Commissioner if documents that should have been provided are not provided or if third party documents are provided that should have been exempt. We recommend that if there is any uncertainty with whether a particular record should be disclosed, that the Municipality should obtain legal advice as soon as possible.
Our team is highly experienced with requests of this nature and regularly advises Municipalities on how best to approach MFIPPA requests.
Costs Awards at the Ontario Land Tribunal
Litigation at the Ontario Land Tribunal (the “Tribunal”) can be complex and significant legal expenses are often incurred to take a matter through to hearing. Successful parties often want to recoup these legal expenses in the form of costs awards as is often done in the civil litigation context.
Unlike the court system, however, costs awards at the Tribunal are not the norm. It is the longstanding position of the Tribunal that costs awards are rare and that a successful party should not expect to recover its legal costs in the usual course.
However, there are limited circumstances in which costs will be awarded. Under Rule 23 of the Tribunal’s Rules of Practice and Procedure, the Tribunal can only award costs against a party if the party’s conduct in the proceeding was “unreasonable, frivolous or vexatious or if the party has acted in bad faith.” Rule 23.9 provides a non-exhaustive list of examples of the type of conduct that could warrant a costs award. For example, acting disrespectfully or maligning the character of another party could be held to be unreasonable conduct sufficient to result in a costs award.
If awarded, costs can be ordered on either a partial, substantial or full indemnity scale. These scales represent differing percentages of the full amount of legal expenses actually incurred for a particular matter. The Tribunal has held that partial indemnity costs are appropriate where the impugned conduct of a party is “clearly unreasonable.” If the party’s conduct goes beyond “unreasonable” and can be said to be “reprehensible, scandalous or outrageous”, the Tribunal may award costs on a substantial or full indemnity basis.
However, while rare, there are certain circumstances where costs awards may be appropriate, especially if a party has acted unreasonably. We recommend requesting the advice of your legal counsel as to whether a request for costs is appropriate in the circumstances and, if appropriate, whether the party’s conduct justifies an award on a partial, substantial, or full indemnity scale.
Our team has successfully obtained costs awards in this context and is equipped to provide advice on how best to approach a request for costs at the Tribunal.
Ontario Enacts “Strong Mayors” Amendments
Ontario has amended the Municipal Act, 2001 to implement a “strong mayor” system in certain municipalities. These amendments come into effect November 15, 2022. They will only affect Toronto and Ottawa at first, but the Premier has said he plans to expand the powers to other municipalities.
The changes give extensive new powers to the office of mayor. These include the power to:
- Appoint the CAO and determine the organizational structure of the municipality, including hiring or dismissing department heads except for a few exempted positions (e.g. the clerk, treasurer, chief building official, etc.) The proposed regulations will define a department head as “the highest level of senior management.”
- Direct municipal employees to carry out duties related to the mayor’s new special powers and duties.
- Appoint chairs and vice-chairs of local boards for certain boards to be prescribed by regulation.
- Establish or dissolve council committees formed under the Municipal Act.
We expect the new powers over senior staff will have significant impacts on municipal operations. Some possible unintended consequences at the operations level include potential claims for constructive dismissal by senior staff if their traditional duties (like hiring or directing staff) are assumed by the mayor; difficulties attracting and retaining senior staff for concerns of job security; and a push toward politicization of senior positions.
Strong mayors will also be able to veto any council decision involving the Municipal Act or Planning Act by-laws if they believe it could interfere with an identified “provincial priority”. The Province has not identified any provincial priorities yet, but has hinted these will include housing supply and infrastructure.
There are other limits on the veto power. Council can overrule the mayor’s veto with a two-third majority. Moreover, the veto power does not give the mayor the power to substitute their own decision or pass by-laws, so a veto simply blocks council’s decision and preserves the status quo. It therefore seems to give the mayor limited ability to actively advance provincial priorities.
At the moment, municipalities other than Toronto and Ottawa need not concern themselves with these reforms. But if the reforms are expanded, municipalities will need to make significant changes, including revising procedural by-laws, staff policies, and Codes of Conduct to reflect a strong mayor’s new powers.
Please note that Cunningham Swan updates are for educational purposes only, not to provide specific legal advice. Should you have any questions or require legal advice, please do not hesitate to contact us by phone at 613-544-0211 or by email at [email protected].
