2023 MBKB 100, 2023 MBKB 100

Date: 20230612 Docket: CI 21-01-31397 (Winnipeg Centre) Indexed as: Chatoorgoon v. Manitoba Ombudsman Cited as: 2023 MBKB 100 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: meera chatoorgoon, applicant, - and – MANITOBA OMBUDSMAN, respondent. ) ) ) ) ) ) ) ) ) ) ) ) Alexander Krush for the applicant Kathleen McCandless Trevor Yakimchuk for the respondent JUDGMENT DELIVERED: JUNE 12, 2023 GREENBERG J. [ 1 ] The applicant seeks judicial review of the Ombudsman’s decision to refuse to investigate a complaint that the applicant made under The Freedom of Information and Protection of Privacy Act , C.C.S.M. c.

F175 (“ FIPPA ”). The complaint related to the University of Manitoba’s denial of the applicant’s request for the names of interviewers of medical school applicants for the years 2000 to 2015. Because the Ombudsman decided not to investigate, the applicant has no right to appeal to this court the decision of the University to refuse access to those records. [ 2 ] The respondent raises a number of issues with the application related to the applicant’s standing to bring it, the jurisdiction of the court to entertain it, and the reasonableness of the Ombudsman’s decision.

But, odd as this may sound, the initial issue which the respondent raises is whether the court can even look at the decision that the applicant asks it to review. Some background is necessary to set the context for a consideration of the issues. background [ 3 ] The applicant is married to Kyle Goomansingh. They live in Pickering, Ontario. The applicant has never lived in Manitoba. But Mr. Goomansingh is from Winnipeg and went to university here. In 2007, Mr. Goomansingh applied for admission to the University of Manitoba, College of Medicine. His application was not successful. Mr.

Goomansingh sought to challenge his unsuccessful application, first by an appeal to the University Senate, then by a complaint to the Manitoba Human Rights Commission and then by an action against the University in the Ontario courts, which action was dismissed. [1] [ 4 ] Admission to the medical school is based in part on a series of mini-interviews with 12 different interviewers. In March 2020,

Mr. Goomansingh filed a FIPPA request asking the University to provide the names of interviewers for the years 2005 to 2015 inclusive. A week later, he filed another request expanding his initial request to include the years 2002 to 2005. By letter, dated March 23, 2020, the University denied Mr. Goomansingh’s request. Mr. Goomansingh had requested the names of the interviewers to determine whether there was any bias or favouritism in the admissions process. I note that Mr. Goomansingh already had the names of the interviewers for 2007, the year he was refused admission. [ 5 ] On March 26, 2020, Mr.

Goomansingh filed a complaint with the Ombudsman regarding the University’s refusal to provide access to the requested records. The Ombudsman issued a report on December 18, 2020, finding that the University was justified in withholding the records sought. In the report, the Ombudsman advised Mr. Goomansingh that he had a right to appeal the University’s decision to refuse access to the records to this court and that he had 30 days to do so.

He did not pursue that appeal. [ 6 ] In March 2021, the applicant filed a FIPPA request with the University seeking a list of all interviewers that participated in the medical admission process from 2000 to 2015 inclusive. By letter, dated April 14, 2021, the University refused her request for essentially the same reasons that they refused her husband’s earlier request. The applicant then made a complaint to the Ombudsman. While the complaint is made in the applicant’s name, it names Mr. Goomansingh as her personal representative to act and receive information on her behalf.

On May 12, 2021, the Ombudsman sent a letter to Mr. Goomansingh indicating that they would not be conducting an investigation into the applicant’s complaint because they had already investigated the University’s decision regarding access to the same records in response to his complaint.

As I explain below, a person who requests access to records under FIPPA cannot appeal a denial of that request unless the Ombudsman has first investigated the denial. [ 7 ] In June 2021, the applicant filed this application seeking judicial review of the University’s decision of April 14, 2021, denying access to the records, and the Ombudsman’s decision of May 12, 2021, to refuse to investigate that denial of access. [ 8 ] In argument, the applicant’s counsel acknowledged that the reason that the applicant brought the same FIPPA request as her husband was that her husband missed the appeal period for the University’s decision to deny his records request.

So, the new request for the same records was to provide an avenue to appeal to this court. [ 9 ] As I said, the reason that the applicant and her husband want the records is to determine whether there is a risk of bias or favouritism by the interviewers towards the medical school applicants, although it is not clear to me how the names of interviewers would reveal bias without knowing who the interviewees were.

The applicant does not appear to have any personal interest in this issue, nor would her husband since he already has the list of names of interviewers for 2007, the year that he applied for admission to the medical school. However, FIPPA does not require that the request be made by someone who can show a personal interest. Any person can apply for records from a public body.

The legislative scheme [ 10 ] FIPPA is a fairly voluminous piece of legislation, so I refer here only to those provisions that are relevant to this application. [ 11 ] The purposes of the Act, as set out in s. 2, are not only to allow individuals access to records in control of public bodies that contain personal information about themselves and to control the manner in which public bodies collect that personal information, but also to allow any person a right to access records in the custody of a public body. In Merck Frosst Canada Ltd. v.

Canada (Health) , 2012 SCC 3 , Cromwell J. explained that the purpose of access to information legislation is to ensure accountability and strengthen democracy. To that end, the legislation is to be given a broad and purposive

interpretation. However, the right of access to records is subject to exceptions which are meant to protect the privacy interests of third parties and the public interest. Divisions 3 and 4 of FIPPA set out an extensive list of mandatory and discretionary exceptions to disclosure.

Where excepted information can reasonably be severed from the requested record, the person seeking disclosure has a right to access the remainder of the record (s. 7(2)). [ 12 ] The process for accessing records is that the person seeking access makes a request in writing to the public body that has custody or control of the records (s. 8). The head of the public body must inform the applicant whether the access is granted or refused and, if access is refused, provide reasons for the refusal and advise the applicant of the right to make a complaint to the Ombudsman (s. 12).

A complaint to the Ombudsman by the person requesting access to records must be made within 60 days of receiving the decision of the public body (s. 59). The Ombudsman investigates the complaint and prepares a report with her findings and recommendations (s. 66). If the Ombudsman finds that the decision of the public body to refuse access was justified, an appeal of the public body’s refusal to disclose lies to this court. The appeal must be brought within 30 days of receiving the Ombudsman’s report (s. 67). This court considers the appeal as a new hearing (s. 69). The decision of this court is final.

There is no further right of appeal (s. 74). [ 13 ] Of significance to the case at bar is the fact that an applicant cannot appeal the refusal of a public body to provide access to records unless the applicant has first made a complaint to the Ombudsman and the Ombudsman has investigated the matter and provided a report with her findings (s. 67(2)). However, the Ombudsman may decide not to investigate a complaint in certain situations.

Section 63 provides:

Decision to not deal with a complaint 63(1) The Ombudsman may decide not to investigate a complaint if the Ombudsman is of the opinion that, (

a) in the case of a complaint about privacy referred to in subsection 59(3), the length of time that has elapsed since the date the subject matter of the complaint arose makes an investigation no longer practicable or desirable; (

b) the subject matter of the complaint is trivial or the complaint is not made in good faith or is frivolous, vexatious or an abuse of process; or (

c) the circumstances of the complaint do not require investigation . Notifying the complainant 63(2) The Ombudsman shall inform the complainant and the head of the public body in writing if he or she decides not to investigate a complaint, and give reasons for the decision. Refus de donner suite à une plainte 63(1) L'ombudsman peut décider de ne pas enquêter sur une plainte s'il est d'avis :

a) ou bien, dans le cas d'une plainte que vise le paragraphe 59(3), qu'une enquête n'est plus faisable ni souhaitable en raison du délai qui s'est écoulé depuis la date à laquelle a pris naissance l'objet de la plainte;

b) ou bien que l'objet de la plainte est futile ou que la plainte n'est pas déposée de bonne foi ou encore est frivole, vexatoire ou constitue un recours abusif;

c) ou bien que les circonstances entourant la plainte ne commandent pas la tenue d'une enquête .

Avis destiné au plaignant 63(2) L'ombudsman informe le plaignant et le responsable de l'organisme public par écrit de sa décision, le cas échéant, de ne pas enquêter sur une plainte, et il motive sa décision. [emphasis added] [ 14 ] Because the Ombudsman refused to investigate the applicant’s complaint, she is precluded from appealing the University’s denial of access to this court. As a result, the applicant was not able to get around her husband’s missed appeal period by renewing the FIPPA request.

Issues [ 15 ] As I said, the Notice of Application seeks judicial review of both the University’s decision to refuse access to the requested records and the decision of the Ombudsman to refuse to investigate that decision. The applicant asks the court to quash both decisions and order disclosure of the records or direct the Ombudsman to conduct a new investigation. Prior to the hearing of the application, the University successfully brought a motion before the Master to strike that part of the application challenging its decision to refuse access to the records.

The Master agreed with the University’s position that that part of the application was premature and that the applicant must first pursue her challenge to the Ombudsman’s decision not to investigate. The applicant has not appealed the decision of the Master. So the issues before me relate only to the Ombudsman’s decision not to investigate the applicant’s complaint. [ 16 ] The Ombudsman based her decision not to investigate on s. 63(1)(

c) of FIPPA . She found that the circumstances of the applicant’s complaint did not require investigation because she had already investigated the University’s decision not to release the records in response to the complaint by the applicant’s husband. [ 17 ] The following issues are raised on the review of the Ombudsman’s decision: • What information is properly before the court as part of the record for review?

The respondent seeks to expunge from the record both the decision of the Ombudsman of May 12, 2021 (the decision under review), and the Ombudsman’s report of December 18, 2020, arguing that, as a result of s. 53(1) of FIPPA , neither document is admissible on this application. • If s. 53(1) of FIPPA does not preclude a review of the Ombudsman’s 2020 report, does the applicant have standing to challenge it? The applicant says that the Ombudsman’s 2021 decision is informed by her 2020 report and, therefore, a review of the 2021 decision requires a consideration of the merits of the 2020 report.

The respondent says that, as the earlier report was prepared as a result of a complaint by the applicant’s husband, the applicant has no standing to challenge it. • What is the scope of the court’s jurisdiction to review the 2021 decision? The respondent says that review is limited by a privative clause in The Ombudsman Act , C.C.S.M. c. O45 .

• What is the standard of review? • Does the decision withstand review on the applicable standard? Motion to expunge [ 18 ] The respondent has filed a motion to expunge two exhibits to the affidavit that the applicant filed in support of her application. Those exhibits are the decision of the Ombudsman of May 12, 2021 and the report of the Ombudsman of December 18, 2020. The respondent relies on s. 53(1) of FIPPA which prohibits a report of the Ombudsman from being admitted into evidence except in limited situations. The

section provides: Statements and reports not admissible in evidence 53(1) A statement made or an answer given by a person during an investigation or audit by the Ombudsman, and a report or recommendation of the Ombudsman, is inadmissible in evidence in a court or in any other proceeding, except (

a) in a prosecution for perjury in respect of sworn testimony; (

b) in a prosecution for an offence under this Act; (

c) in a review conducted by the adjudicator under this Act when the Ombudsman is a party; or (

d) in an application for judicial review of an adjudicator's order under this Act. Admissibilité en preuve 53(1) Les déclarations que fait et les réponses que donne une personne au cours d'une enquête ou d'une vérification de même que les rapports et les recommandations de l'ombudsman sont inadmissibles en preuve devant un tribunal ou dans le cadre de toute autre instance :

a) qu'une poursuite pour parjure;

b) qu'une poursuite pour infraction à la présente loi;

c) qu'un examen mené par l'arbitre en vertu de la présente loi lorsque l'ombudsman est une des parties concernées;

d) qu'une demande de révision judiciaire d'une ordonnance que l'arbitre a rendue en vertu de la présente loi. [emphasis added] [ 19 ] In my view, the prohibition in s. 53(1) has no application to the decision of the Ombudsman of May 2021 as that decision is not being admitted as “evidence” (“en preuve”) in this application. Rather, it is the very decision under review. The

interpretation of s. 53(1) proffered by the respondent would mean that the Ombudsman’s decision is not subject to judicial review on any grounds. But s. 53(1) is not a privative clause. It is obvious from the other provisions of the Act that come before and after s. 53(1), that the intent of the

section is to protect the confidentiality of the Ombudsman’s investigation (see ss. 52, 53(2), 54, 55), not to protect her report from review. [ 20 ] As for the Ombudsman’s 2020 report, arguably that report is being filed as “evidence” in this case. However, while none of the exceptions in s. 53(1) would apply to the use of that report in this application, this court cannot engage in a review of the Ombudsman’s decision not to investigate without regard to the evidence (“record”) upon which she based that decision.

And the 2020 report was part of that record. [ 21 ] In any event, the Ombudsman’s 2020 report is relevant only to determine whether the issue has been previously considered by the Ombudsman, a matter which does not appear to be contentious. The applicant did not dispute that the Ombudsman had previously investigated the University’s denial of access to the records. Her argument focused on the merits of her decision on that issue. This brings me to the issue of standing.

Standing [ 22 ] The primary issue before me is the reasonableness or correctness of the Ombudsman’s decision not to investigate the complaint made by this applicant, Meera Chatoorgoon. But the applicant’s argument is based entirely on a review of the merits of the Ombudsman’s December 2020 report in which she concluded that the University’s decision not to disclose records to her husband was justified. The Notice of Application does not seek judicial review of the 2020 report, nor could it.

As the 2020 report was made in response to a complaint by the applicant’s husband, the applicant has no standing to ask the court to review it. [ 23 ] The applicant argues that the Ombudsman relied on her 2020 report in her decision not to investigate and, therefore, she is entitled to point to any errors in the earlier report. But the Ombudsman referred to her earlier report only to make the point that she had already considered the substance of the applicant’s complaint. She did not rely on her reasons for finding the denial of access was

justified in deciding not to investigate the issue a second time. In her 2021 decision, she states: Accordingly, my office is advising you that we will not be investigating this current complaint received on April 16, 2021, as our office has already recently investigated and made findings regarding essentially the same access request on your behalf. The outcome of a new investigation would not be different from the findings reached in our December 2020 report, which you received.

Therefore, in accordance with subsection 63(2) of FIPPA, I am informing you and the University of Manitoba that our office will not be investigating the complaint. . . . The basis for our decision not to investigate this complaint is found in clauses 63(1)(

c) of FIPPA. . . . Because our office has already investigated the University of Manitoba’s access decision regarding access requests for essentially the same records for you, our office is of the view that the circumstances of this complaint do not require investigation. [ 24 ] As I said, the applicant does not dispute that the Ombudsman had already investigated the University’s denial of access nor does she challenge the Ombudsman’s reliance on s. 63(1)(c). Rather, her argument focuses on alleged errors in the Ombudsman’s 2020 decision that found the University’s decision not to release records was justified.

As I said, the applicant has no standing to challenge the 2020 report. In any event, the substance of the 2020 report is not relevant because it did not factor into the 2021 decision. Privative Clause [ 25 ] As I explained above, FIPPA provides for an appeal to this court of the decision of a public body not to release records, provided the appellant has first complained to the Ombudsman and the Ombudsman has investigated and reported on the matter. Regardless of the outcome of the Ombudsman’s investigation, the appeal is treated as a new hearing of the request to access records.

However, if the Ombudsman decides not to conduct an investigation, there is no right to appeal the denial of access to records. [ 26 ] While there is no provision in FIPPA that either allows or denies the right to seek review of the Ombudsman’s decision not to investigate, the respondent argues that a provision in The Ombudsman Act limits the right of review.

Section 39 of that Act provides: Review of Ombudsman's decision 39 No proceeding of the Ombudsman is void for want of form and, except on the ground of lack of jurisdiction, no proceedings or decisions of the Ombudsman shall be challenged, reviewed, quashed or called in question in any court.

Appel des décisions de l'ombudsman 39 Aucune procédure de l'ombudsman n'est nulle pour vice de forme et, sauf dans les cas d'absence de compétence, les procédures ou décisions de l'ombudsman ne peuvent être contestées, révisées, annulées ou remises en question devant un tribunal. [ 27 ] In my view, this privative clause in The Ombudsman Act has no application to complaints to the Ombudsman made under FIPPA .

This is not a situation where the respondent is arguing that the provisions of FIPPA should be interpreted by reference to the provisions of a related statute (see Sullivan on the Construction of Statutes , 7 th ed., c. 13). Rather, the respondent is suggesting that the provision of another statute should be read into FIPPA . [ 28 ] The Ombudsman Act authorizes the Ombudsman to investigate any decision or act of a government department or agency or an employee thereof and establishes a process for doing so. The privative clause in that Act applies to investigations under that Act.

The Ombudsman Act does not authorize the Ombudsman to investigate a decision where there is an appeal process for that decision under another Act (see s. 18(d)). As FIPPA provides an appeal process, The Ombudsman Act does not authorize the Ombudsman to investigate a denial of access to records under FIPPA . Complaints to the Ombudsman about denials of access to records under FIPPA are governed by procedures established by FIPPA and FIPPA does not contain a provision that restricts review of the Ombudsman’s decision not to investigate.

Notably, many of the provisions of The Ombudsman Act regarding investigations are also found in FIPPA ; [2] but the privative clause is not one of them. Standard of Review [ 29 ] Having decided that the Ombudsman’s decision not to investigate is reviewable, the next issue is on what standard? There is a presumption that the standard of review is reasonableness ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ). While the applicant argued that the applicable standard of review is correctness, she did not demonstrate that the correctness standard is required by the rule of law.

The decision of the Ombudsman not to investigate did not involve a constitutional question, a

question of law of general importance to the legal system or a question of jurisdictional boundaries between administrative bodies. Ultimately, in oral argument, the applicant’s counsel conceded that the standard of review is reasonableness. Was the OMBUDSMAN’S decision reasonable? [ 30 ] Again, I must emphasize that the only decision under review is the decision of the Ombudsman not to investigate the University’s refusal to disclose records requested by the applicant. The merits of the University’s decision are not before me. The onus is on the applicant to show that the decision under review is unreasonable ( Vavilov , para. 100 ). [ 31 ] The Ombudsman’s decision was based on s. 63(1)(

c) of FIPPA which allows the Ombudsman to decide not to investigate a complaint where the circumstances of the complaint do not “require investigation” (“ne commandent pas las tenue d’une enquête”). The Ombudsman found that the applicant’s complaint about the University’s refusal to disclose records did not require investigation because her office had recently investigated a complaint by the applicant’s husband regarding the same access request.

As I said, in argument, the applicant’s counsel acknowledged that the applicant’s records request was essentially the same as her husband’s request and was being pursued to get around the fact that his appeal period had expired. [ 32 ] The applicant pointed to alleged errors in the Ombudsman’s original (December 2020) report. But, as I said, she has no standing to challenge the merits of that report. The applicant argued that it is necessary to review the original report because the Ombudsman relied upon it in deciding not to investigate.

But the Ombudsman did not rely upon the substance of her original decision, only on the fact that she had already reviewed the same issue. The fact that the applicant does not agree with the reasoning in the Ombudsman’s first report does mean a new investigation is “required” or that the circumstances demand it. [ 33 ] The decision of the Ombudsman not to investigate the applicant’s complaint is justified in light of the relevant law and facts and the decision is intelligible and transparent. It is eminently reasonable. Even if the standard of review was correctness, I would uphold the decision.

I am, therefore, dismissing the application for certiorari to quash the decision and for mandamus to direct the Ombudsman to reconsider her decision. The other heads of relief claimed relate to the merits of the Ombudsman’s earlier report and the findings of the University in its decision not to disclose, neither of which are before me. [ 34 ] The application is dismissed. Costs may be spoken to if not agreed upon. J.