) ) LAWRENCE RICHARD WHITNEY Applicant – v. –, 2013 ONSC 7665

CITATION : Whitney v. Ontario Lottery and Gaming Corporation et. al., 2013 ONSC 7665 DIVISIONAL COURT FILE NO.: 37/13 DATE: 20131213 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ.

BETWEEN: ) ) LAWRENCE RICHARD WHITNEY Applicant – and – ONTARIO LOTTERY AND GAMING CORPORATION and INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondents ) ) ) ) ) ) ) ) ) ) ) ) In person Jill Dougherty and Jordan Glick, Amici Curiae Daniel Michaluk, Josh Concessao for the Ontario Lottery and Gaming Corporation William S Challis for the Information and Privacy Commissioner of Ontario ) ) ) HEARD at Toronto: November 18, 2013 Reasons For Decision Marrocco A.C.J.: [ 1 ] Lawrence Whitney applies to judicially review the decision of an adjudicator at the Information and Privacy Commissioner of Ontario (“IPC”), dated November 5, 2012. [ 2 ] Mr.

Whitney had made two requests of the Ontario Lottery and Gaming Corporation (“OLGC”) for access to information. He appealed to the Information and Privacy Commissioner, challenging the redaction of information provided in response to his requests, and challenging the adequacy of the OLGC’s search for documents and information responsive to his requests. [ 3 ] Mr. Whitney represented himself in these proceedings. This court was, however, very ably assisted by pro bono amici curiae who were appointed to that role by a judge of this court prior to the hearing of this application. [ 4 ] Mr.

Whitney filed two application records to which I will refer. [ 5 ] Mr. Whitney did not name the OLGC as a respondent in this application. This was clearly an oversight. Mr. Whitney indicated that he was very anxious to hear from the OLGC in these proceedings. On consent, the OLGC was added as a respondent by order of this court at the time this application was argued. The OLGC participated in this application. [ 6 ] On or about March 14, 2007, Mr. Whitney insists he purchased a Lotto/649 ticket for the draw on March 21, 2007. In his Application Record, Mr.

Whitney included a letter from Anna Pyymaki that indicates that Mr. Whitney told the OLGC that he surrendered his winning ticket at Cox’s General Store in Sundridge, Ontario on March 22, 2007. Mr. Whitney believes that he won the $20 million jackpot. In essence, Mr. Whitney claims that his winning ticket was stolen from him. [ 7 ] Lotterybuddy.com, an unofficial website to which Mr.

Whitney resorted, indicated that the March 21, 2007, $20 million Lotto 6/49 winning ticket had been purchased in Ontario. [ 8 ] In a Freedom of Information and Protection of Privacy Act Request Form addressed to the OLGC and dated September 28, 2011, Mr. Whitney stated that the OLGC had announced on national news across Canada that the winner of the $20 million jackpot was a person named Paul Pyymaki. Mr. Whitney indicated in this Request Form that Paul Pyymaki’s girlfriend worked at Cox’s General Store in Sundridge, Ontario. In the same Request Form, Mr.

Whitney demanded that the OLGC withdraw all information provided to him by its Programme Coordinator for Information Access and Privacy Services, Anna Pyymaki. Mr. Whitney claimed that Paul Pyymaki and Anna Pyymaki were related. Anna Pyymaki had no further contact with Mr. Whitney after he claimed she was related to Paul Pyymaki.

[9] The OLGC gave Mr. Whitney an affidavit from Mr. Jason Thompson, a senior analyst with that Corporation. The affidavitstated that the OLGC had investigated and determined that there was no relation between their employee, Anna Pyymaki, and anyonenamed Paul Pyymaki. The OLGC also asked Lotto Québec if the winner of the $20 million jackpot was named Paul Pyymaki. LottoQuébec responded by saying that the winner of the $20 million jackpot was not named Paul Pyymaki. [10] Mr. Whitney included in his factum portions of a letter from Shelby Austin, whom Mr. Whitney described as counsel for theOLGC.

The letter contained an assertion that Mr. Whitney complained to the Ontario Provincial Police, claiming that on two separateinstances lottery tickets were stolen by two different OLGC retailers. In this same excerpt, Ms. Austin referred to a letter from theOntario Provincial Police dated July 25, 2008, advising that no evidence of criminal activity had been discovered in relation to Mr.Whitney’s allegations. [11] I reference these facts only to indicate that relations between Mr. Whitney and the OLGC are contentious. [12] In Information Requests directed to the OLGC, Mr.

Whitney asked for the following information: • the sell device number of the retailer where the winning ticket was purchased and claimed; • the date the win was announced; • the location and name of the prizewinner; and • the date the prize money was paid out. [13] The OLGC responded to Mr. Whitney by telling him that the winning ticket was purchased in Québec, and that informationrelating to the purchase of the ticket would have to be obtained from Lotto Québec. [14] To demonstrate that this was correct, the OLGC gave Mr.

Whitney a redacted copy of a document called a “Draw Report.”This report was prepared and issued by the Interprovincial Lottery Corporation. The evidence considered by the adjudicator establishedthat, after a Lotto 6/49 draw, each provincial or regional lottery organization was provided with a Draw Report containing informationconcerning tickets sold in that province or region, as well as information identifying provinces where major winning tickets had beensold. [15] The Ontario Draw Report stated that there was one winning ticket for the $20 million draw and that it had been purchased inQuébec. [16] Mr.

Whitney was not satisfied with these responses, and he appealed to the IPC. The appeal was heard by an adjudicator. Mr.Whitney’s appeal was dismissed in a decision dated November 5, 2012. The adjudicator determined that “the OLGC had met itsstatutory obligations in responding to the appellant’s request for information related to this particular Lotto 6/49 draw.” [17] Paragraph 9 of that decision sets out that the appeal had two aspects. The first concerned the information redacted from theDraw Report.

The second concerned the adequacy of the OLGC’s search of information within its custody or control. [18] The adjudicator determined that the redacted information was unrelated to the purchase, validation or payout of the winningticket and that as a result, the OLGC was justified in redacting it.

There was evidence in the form of the unredacted Draw Report beforethe adjudicator which supported her conclusion and accordingly there is no basis for this court quashing that conclusion. [19] In responding to the second aspect of the appeal, the OLGC indicated that it had obtained a list of all Ontario prizewinners of$10,000 or more and that the $20 million jackpot prize was not listed. [20] The adjudicator set out in paragraph 30 that the specific issue to be determined was whether the records sought by Mr.Whitney existed “in the custody or control of the institution.” The adjudicator made the following additional observation in thatparagraph: “my review of the OLGC’s search for responsive records… only encompasses records or information that are demonstrablywithin the OLGC’s custody or control.” [21] The amici curiae pointed out that the adjudicator in paragraph 31 made the statement that she was “satisfied that a reasonableeffort was made to identify and locate information within OLGC’s record holdings that is reasonably related to the purchase, validationand $20 million prize…” The amici curiae submitted that the adjudicator had erroneously failed to consider whether the OLGC hadreasonably searched documents that it controlled.

It was urged that information and documents containing the information sought by Mr.Whitney, despite being within the physical custody of Lotto Québec, were nevertheless within the control of the OLGC. [22] Paragraph 31, taken in isolation, is capable of this construction. However, when paragraph 31 is considered in conjunctionwith paragraph 30, it is clear that the adjudicator was asking herself whether the OLGC had within its custody or control recordsresponsive to Mr.

Whitney’s request. [23] The amici curiae submit that the standard of review for a Privacy Commissioner’s decision that documents were in thecustody or control of the OLGC is correctness: see Walmsley vs. Ontario (Attorney General) (1997), (ON CA), 34O.R. (3d) 611 (C.A.).

The amici curiae also submit that because previous jurisprudence has established the applicable standard ofreview, no such analysis was required on this application. [24] The adjudicator’s reasons indicate that she was satisfied that the OLGC had conducted a reasonable search of its own records.Specifically, the adjudicator was satisfied that an experienced employee of the OLGC, knowledgeable in the subject matter of Mr.Whitney’s request, had made a reasonable effort to locate records related to that request. [25] There is no basis upon which this court can interfere with that conclusion.

There was evidence before the adjudicator that set

out the searches carried out by the OLGC. The adjudicator’s conclusion that those searches were reasonable was open to her on that evidence. [ 26 ] Objection is made to the fact that the OLGC did not request the information sought by Mr. Whitney from Lotto Québec. In my view, the OLGC was not required to do so. The Freedom of Information and Protection of Privacy Act does not compel the OLGC to conduct an investigation on behalf of Mr. Whitney: s.10 only requires the Corporation to provide records in its custody or under its control. [ 27 ] Mr.

Whitney asserted that the winner of the $20 million jackpot was Paul Pyymaki. The OLGC asked Lotto Québec whether this was true and Lotto Québec responded by saying that a person named Paul Pyymaki did not win the jackpot. The OLGC obviously obtained this information to respond to the allegation made by Mr. Whitney that its Programme Coordinator for Information Access and Privacy Services, Anna Pyymaki, was related to the person who had won the $20 million that Mr. Whitney said was his. [ 28 ] Similarly, the OLGC did not need to know the name of the person who presented the winning ticket to respond to Mr.

Whitney’s claim that he was the lawful owner of that ticket. It was entitled to rely upon the Draw Report as proof that the winning ticket was purchased in Québec despite the information on the unofficial Lotterybuddy.com site. [ 29 ] The only question outstanding is whether there are documents, in the possession of a third-party, production of which could be compelled by the OLGC?

Such documents would arguably be under the control of the OLGC. [ 30 ] There are only two such possible third parties in this case: the Interprovincial Lottery Corporation and Lotto Québec. [ 31 ] The Rules and Regulations of the Interprovincial Lottery Corporation respecting Lotteries and Lottery Tickets were produced in this application. Rule 13 provides that the Interprovincial Lottery Corporation or a Regional Marketing Organization has no obligation to pay the holder of a winning ticket unless, in part, that person produces satisfactory evidence of identification.

The OLGC is a Regional Marketing Organization according to those Rules. There is no suggestion that Ontario demanded evidence of identification prior to payment to the holder of the winning ticket [ 32 ] The Rules do not provide that Ontario can demand information from the Interprovincial Lottery Corporation in the circumstances presented in this application.

Similarly, the Rules do not provide for a mechanism whereby one Regional Marketing Organization can compel the production of information or documents from another to satisfy an information request in the circumstances presented here. [ 33 ] The amici curiae relied on a previous decision of the Superior Court to establish that the Interprovincial Lottery Corporation was established in 1976 by regional and provincial lottery organizations, and that it is jointly owned, according to that decision, by provincial governments including Ontario.

The amici curiae also relied on the same Superior Court decision to establish that prizes are calculated by the Interprovincial Lottery Corporation and paid out of a pool of funds divided amongst various categories and winners: see Tal v. Ontario Lottery Corporation/Lotto 6/49 OLG , 2011 ONSC 644 , at para. 7 .

This decision did not suggest that a winning ticket can be redeemed in a province other than the province in which it was purchased, nor did it suggest that information can be demanded by Ontario from Lotto Québec or the Interprovincial Lottery Corporation after a winning ticket has been paid by another Province. [ 34 ] It is not sufficient to establish that various provincial lottery organizations have cooperated together to conduct an interprovincial lottery. Mr.

Whitney had to establish to the satisfaction of the Information and Privacy Commissioner adjudicator hearing his appeal that the OLGC had control over the information or records in the possession of the Interprovincial Lottery Corporation. The same applies to documents or information in the possession of Lotto Québec. Black’s Law Dictionary defines “control” as “to exercise power or influence over”: B. Garner, ed., Black’s Law Dictionary , 9th ed. (St. Paul, MN: Thomson West, 2009), at p. 378. Similarly, The Canadian Oxford Dictionary defines “control” as “the power of directing, command”: K.

Barber, ed., The Canadian Oxford Dictionary , 2nd ed. (Toronto: Oxford University Press, 2004), at p. 330. Neither the Rules and Regulations of the Interprovincial Lottery Corporation respecting Lotteries and Lottery Tickets nor the Draw Report support a conclusion that the OLGC had a right to direct, influence, compel or otherwise demand production of the records or information sought by Mr.

Whitney. [ 35 ] There was no basis upon which the adjudicator could conclude that there was information or documents under the control of the OLGC despite not being in its actual custody. [ 36 ] In the result, the decision of the adjudicator, when reviewed upon a correctness standard, cannot be set aside. [ 37 ] I have accepted that correctness is the appropriate standard of review. I do not wish to leave this question without observing that this review concerned the reasonableness of the search conducted by the OLGC.

A decision by the IPC that a reasonable search for documents or information has been made is a decision frequently made by the Information and Privacy Commissioner in the course of carrying out its mandate. Had it not been for the Court of Appeal’s decision in Walmsley , one would have expected that such decisions were within the Commissioner’s mandate and expertise, and therefore entitled to deference and reviewable on a reasonableness standard. [ 38 ] Mr. Whitney’s application to quash the findings by the adjudicator that the searches conducted by the OLGC for information or records responsive to Mr.

Whitney’s requests were adequate is dismissed with costs. [ 39 ] Similarly, Mr. Whitney’s application to quash the adjudicator’s decision that the OLGC’s decision to redact information from the Draw Report was reasonable is also dismissed with costs. [ 40 ] Brief written submissions concerning costs may be submitted within 10 days of the signing of this decision. A.C.J.S.C. MARROCCO

BALTMAN J. MCEWEN J. Released: CITATION : Whitney v. Ontario Lottery and Gaming Corporation et. al., 2013 ONSC 7665 DIVISIONAL COURT FILE NO.: 37/13 DATE: 20131213 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ. BETWEEN: LAWRENCE RICHARD WHITNEY Appellant -and- ONTARIO LOTTERY AND GAMING CORPORATION and INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondents REASONS FOR JUDGMENT Released: