Supreme Court Of Canada: Limits On Government Disclosure Include Policy Options

by Dentons

On Friday, the Supreme Court of Canada (“SCC”) issued a unanimous decision in John Doe v. Ontario (Finance),2014 SCC 36 that outlines the parameters on the ability of the public to access information under Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”) that is prepared for the purposes of informing the deliberative processes of government bodies.

In sheltering draft policy options from public access by fitting it within an exemption for “advice or recommendations” prepared for a public institution, Canada’s highest court provided helpful discussion on where the presumption for public right of access to government information will butt up against the boundaries of the goal of preserving space for public servants or consultants to produce “full, free and frank advice”.

Access Request for Documents Containing Policy Options

Following amendments to the Ontario Corporations Tax Act R.S.O. 1990, c. C. 40 to eliminate a loophole for tax havens, a request for the disclosure of records related to considerations of the effective date and retroactive application of the amendments was made to the Ministry of Finance and the Ministry of Revenue. Responsive records included draft versions of a paper that formed part of the briefings of the Minister, Deputy Minister, Assistant Deputy Minister of Finance and the Office of Budget and Taxation, and discussed when the amendments should take effect, including express statements regarding which options were not recommended.

Procedural History

In denying access to the records, the Ministry of Finance relied on s. 13(1) of FIPPA, which allows the government to refuse disclosure of a record that would reveal “advice or recommendations” prepared for a public institution.

Access was subsequently ordered by an Adjudicator in the Office of the Information and Privacy Commissioner of Ontario (“IPC”). This was based largely on the consideration that (i) the content of the records did not reveal a suggested course of action that will ultimately be accepted or rejected by the person being advised, and (ii) there was no clear evidence that the documents were communicated to the person being advised; the lack of a final version suggested that the information was not actually used in the decision-making process.

The matter wound its way up through the courts, where the Ontario Court of Appeal found the disclosure order unreasonable, allowed the appeal, and remitted the matter to the IPC.

Supreme Court of Canada: “Advice” is not “Recommendations” and Communication Not Required

The SCC held that:

(i) the IPC Adjudicator’s consideration that the information must reveal a course of action only applies to “recommendations”. “Advice” has a distinct and broader meaning than “recommendation” (inclusion of both words in the exemption would be redundant) and includes discussion of policy options (which would include a list of alternative courses of action relating to a decision to be made). Also,

(ii) a record does not need to be communicated in order to be exempted from disclosure. To only protect the final version of a document, without also including drafts that form part of the deliberative process, would offer only an “illusory” protection from disclosure.

Limitations on Rights of Access

The SCC decision clarifies the extent to which deliberative processes that form part of the government’s policy development will be permitted to be sheltered from public access in Ontario, and limits the extent to which requests by media, public interest groups, and other interested parties seeking to peek into the inner workings of these processes will be allowed. Although this decision relates specifically to Ontario’s FIPPA, the interpretation of similar provisions in other provinces will likely be influenced by the SCC’s considerations.

In arriving at its decision, the SCC embarked on a consideration of the balancing of the right of access to information with the protection of other interest that would be adversely affected by disclosure of the information. FIPPA is centred on a presumption of granting access to government information. Exemptions must be limited and specific. In interpreting the scope of “advice”, the SCC measured the competing interests of a transparent government with the goal of maintaining government confidentiality to preserve an effective public service. The SCC considered the ability for Ontario public servants to be able to be candid in their internal evaluations without concern that their deliberations would be cast under the microscope of public scrutiny. Information that contains a range of policy options and is not required to be communicated to the decision-maker invokes the exemption provision, and strikes the appropriate balance of interests.

It is useful to mention that while the SCC decision will allow the Ontario government to shield greater amounts of information under the s.13(1) exemption, this exemption also has built in exceptions under s. 13(2) that reflect the legislative intent to restrict from disclosure limited information only. Government bodies cannot shield from disclosure “advice or recommendations” when they are contained in information mandated under s.13(2). Section 13(2) includes advice or recommendations in final plans to establish or change a program as well as in reasons supporting a final decision based on an exercise of discretionary power, among other exemptions. And of course, to the extent that there is public interest in the disclosure of the information that overrides the exemption, disclosure would be required.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.