) ) THE CORPORATION OF THE CITY OF WATERLOO Applicant – v. –, 2010 ONSC 6522

CITATION : Corporation of the City of Waterloo v. Cropley and Higgins, 2010 ONSC 6522 DIVISIONAL COURT FILE NO.: 300/10 and 331/10 DATE: 20101125 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND HARVISON YOUNG JJ.

BETWEEN: ) ) THE CORPORATION OF THE CITY OF WATERLOO Applicant – and – LAUREL CROPLEY, Adjudicator in her capacity as a delegate of the Information and Privacy Commissioner, TERRY PENDER and BRIAN CALDWELL Respondents AND BETWEEN The CORPORATION OF THE CITY OF WATERLOO Applicant -and – JOHN HIGGINS, Adjudicator in his capacity as a delegate of the Information and Privacy Commissioner, and BRIAN CALDWELL Respondents )) )) )) )) ))))))))))))))))) David M. Steele and Michael A. van Bodegom , for the Applicant William S.

Challis, for the Respondent, Laurel Cropley, Adjudicator in her capacity as a delegate of the Information and Privacy Commissioner Brian MacLeod Rogers , for the Respondents, Terry Pender and Brian Caldwell David M. Steele and Michael A. van Bodegom, for the Applicant William S.

Challis, for the Respondent, John Higgins, Adjudicator in his capacity as a delegate of the Information and Privacy Commissioner Brian MacLeod Rogers , for the Respondent, Brian Caldwell ) HEARD at Toronto: November 25, 2010 HIMEL J. (orally) [ 1 ] The City of Waterloo applies for judicial review of orders made by two adjudicators acting as delegates of the Information and Privacy Commissioner of Ontario. One application concerns decisions of the respondent, Laurel Cropley and the other concerns a decision made by the respondent, John Higgins.

Both decisions raise similar issues and, as a result, it was agreed by the parties that these cases be heard together. [ 2 ] The applicant, the City, takes the position that the Commissioners exceeded their jurisdiction in ordering the City to disclose records which it alleges are protected by solicitor/client privilege and are exempt from disclosure requirements under s.12 of the Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c.m.56. [ 3 ] The respondent, the Information and Privacy Commission, takes the position that no jurisdictional error was made because the information sought, which was the total dollar amount of the City’s legal bills, is not sheltered by the s.12 exemption.

The respondent journalists support the position of the IPC and ask that the applications for judicial review be dismissed.

[4] In both orders, the adjudicators ordered the City to disclose total dollar figures concerning legal services with no datesrelating to when the services were charged and no details of the nature of the services rendered. Furthermore, the totals did not have tobe disclosed in any particular sequence. [5] All parties agree that the standard of review applicable to these applications is one of correctness. The arguments put beforeus by the applicant on this issue are the same arguments as those raised before the adjudicators.

There is no suggestion in thesearguments that the adjudicators misstated the principles of law applicable to their decisions - in particular, references to the leadingdecisions of the Supreme Court in Miranda v. Richer, 2003 SCC 67 , [2003] 3 S.C.R. 193, the decision of the Ontario Court ofAppeal in Ontario (Attorney General) v. Ontario (Assistant Information Privacy Commission) (ON CA), [2005] O.J.No. 941, and a decision of this Court in Ontario (Ministry of the Attorney General v. Ontario (Information and Privacy Commission) (ON SCDC), [2007] O.J.

No. 2769. [6] The thrust of the applicant’s submissions before us is that the adjudicators erred in failing to adequately consider certainhypothetical circumstances in which the applicant argues there will be a reasonable possibility that an assiduous inquirer, aware of thebackground information available to the public, could use the information to acquire communications protected by the privilege.

Thedifficulty with this submission is that the hypotheticals have no application to the circumstances before the adjudicators in these cases. [7] The adjudicators correctly decided that their role was to review the cases before them on their facts and not on inapplicablehypothetical scenarios which is in keeping with the Miranda decision and the cases that have followed it. [8] For these reasons and for the excellent and thorough reasons set out by both adjudicators in their respective decisions, theapplications for judicial review are dismissed. [9] I have endorsed the Application Record, “The application is dismissed for oral reasons given by me on behalf of the Court.

There is no order as to costs with respect to the IPC. With respect to costs of Pender and Caldwell, it is agreed that costs be fixed at$7,500.00, payable by the City with respect to both applications.” HIMEL J. SACHS J. HARVISON YOUNG J. Date of Reasons for Judgment: November 25, 2010 Date of Release: December 10, 2010 CITATION: Corporation of the City of Waterloo v. Cropley and Higgins, 2010 ONSC 6522 DIVISIONAL COURT FILE NO.: 300/10 and 331/10 DATE: 20101125 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURTHIMEL, SACHS AND HARVISON YOUNG JJ. BETWEEN:

THE CORPORATION OF THE CITY OF WATERLOO Applicant – and – LAUREL CROPLEY, Adjudicator in her capacity as a delegate of the Information and Privacy Commissioner, TERRY PENDER and BRIAN CALDWELL Respondents AND BETWEEN The CORPORATION OF THE CITY OF WATERLOO Applicant -and – JOHN HIGGINS, Adjudicator in his capacity as a delegate of the Information and Privacy Commissioner, and BRIAN CALDWELL Respondents ORAL REASONS FOR JUDGMENT HIMEL J. Date of Reasons for Judgment: November 25, 2010 Date of Release: December 10, 2010