2013 ONSC 996, 2013 ONSC 996

CITATION : Whitney v. Information and Privacy Commissioner of Ontario, 2013 ONSC 996 COURT FILE NO.: 477/12 DATE: 20130214 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: Lawrence Richard Whitney, Applicant AND: Information and Privacy Commissioner of Ontario, Respondent BEFORE: THEN, MOLLOY, and HARVISON YOUNG JJ.

COUNSEL: Lawrence Richard Whitney , in person Lawren Murray , for the Respondent HEARD: February 11, 2013 at Toronto MOLLOY J: ENDORSEMENT [ 1 ] Underlying this proceeding is a dispute between neighbours about fencing in the Town of Erin, one of the neighbour’s being the father of the applicant. That matter was resolved under the Line Fences Act , R.S.O. 1990, c. L.17 with a decision by a Line Fence Committee, which was then reviewed by the Provincial Referee.

Ultimately, the neighbour built the fence, the applicant’s father did not pay his share, with the result that the Town paid half the contractor’s fee and added the amount to the applicant’s father’s tax bill. The applicant filed an information request with the Town relating to the Provincial Referee’s award and then appealed the Town’s decision to the Information and Privacy Commissioner (“the Commissioner”). [ 2 ] The application now before this Court is an application for judicial review from the decision of the Commissioner dated January 12, 2012, and the reconsideration of that Order dated January 31, 2012.

Essentially, the Commissioner held that the Town had conducted a reasonable search for the requested documents and that the Commissioner had no jurisdiction to order production of the records sought by the applicant. [ 3 ] In the course of argument before this Court, it became apparent that Mr.

Whitney has two concerns: (1) he is not satisfied as to the cost of the fence and that the amounts claimed by the neighbor and the Town to have been paid were actually paid; and (2) he feels that the Referee “changed the rules” about how neighbours should share the cost of fences and failed to give adequate reasons explaining why he made the decision he did. [ 4 ] The proceedings under the Line Fences Act began in 2005. It would appear that by August 2006, that process was complete and the fence was built by a contractor hired by the neighbor.

It is now well over six years since the conclusion of those proceedings. At the relevant time, Mr. Whitney did not bring a judicial review application of the decisions made under the Line Fences Act. He advised the Court that he did complain to the Mayor about what he perceived to be the unfairness of the Referee’s decision, but was told that there was nothing the Mayor could do about that. On this point, the Mayor was correct. The Referee is independent of municipal government and cannot be told what to do by the Mayor (or anyone else for that matter).

Instead of focusing on ways to obtain review of the Referee’s decision, Mr. Whitney focused his attention on the Town. When he was not successful in getting what he felt he was entitled to from the Town, he applied to the Commissioner. [ 5 ] One of the orders sought by the applicant before the Commissioner was an order compelling the Royal Bank of Canada to certify cheques that were paid in respect of the fence. The Commissioner was correct in finding that there is no jurisdiction in the Commissioner to grant such relief.

The Royal Bank is a federally regulated undertaking and not an institution subject to the Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 ( MFIPPA ). [ 6 ] Before this Court, Mr. Whitney conceded that it was not necessarily certification of the cheques that he required. Rather, he is not satisfied that the neighbor actually paid $17,866.30 to the contractor or that the Town actually paid $8,933.15 to the neighbor. He wants independent proof that those cheques were actually issued and cashed, which he feels should come from the bank involved. Mr.

Whitney also acknowledged that it now appears to him that the Commissioner has no jurisdiction to order a bank to do something. However, he submitted that a court, such as this one, has jurisdiction to compel a bank to produce documentation and that this Court should therefore make such an Order. [ 7 ] The application before this Court is for judicial review of the decision of the Commissioner. That is the only matter before us, and our jurisdiction is limited to reviewing the decision of the Commissioner.

This Court has no jurisdiction to make any Order or grant any relief beyond the narrow parameters of this application. Once we determine, as we have, that the Commissioner had no jurisdiction to order the banks to produce anything, our role is complete. We cannot substitute our Order for relief that the Commissioner had no jurisdiction to grant. [ 8 ] The second form of relief sought by the applicant from the Commissioner was an Order requiring the Provincial Referee to explain her reasons.

The MFIPPA provides the public with a right to access information in the custody or control of the local government, subject to certain exemptions and exclusions. The Provincial Referee is an independent administrative decision-maker who

is not an employee of the Town. Her records are not under the custody or control of the Town. [ 9 ] Moreover, even if the records of the Provincial Referee were accessible by the Town, the MFIPPA only provides for the disclosure of already existing records. It does not oblige a municipal actor to create a record in response to a request. [ 10 ] Accordingly, the Commissioner held that there was no jurisdiction to compel additional reasons from the Referee. That is correct.

Further, since the Commissioner is without jurisdiction, so too is this Court in respect of this application. [ 11 ] To the extent that the Applicant was not satisfied with the Provincial Referee’s decision, his remedy was to bring a timely application for judicial review of that decision. He failed to do so. Therefore, the Referee’s decision is not before us and we cannot grant any relief in respect of it. Our jurisdiction is limited to reviewing the decision of the Commissioner.

Neither s. 12(5) of the Lines of Fences Act nor s.412 of the Municipal Act have any relevance to this application. [ 12 ] Finally, the Commissioner found that the Town had conducted a reasonable search of its records in relation to the applicant’s request. In coming to that conclusion, the Commissioner applied established and well-reasoned principles to assess the reasonableness of the Town’s search. The Commissioner considered all the relevant evidence in coming to her conclusion, including a letter from the Town clerk outlining the steps she undertook to fulfill the Applicant’s access to information request.

The Applicant provided no reasonable basis for concluding that additional responsive records existed. We find the Commissioner’s decision meets the reasonableness standard of review and we have no basis to intervene. [ 13 ] Accordingly, this application is dismissed. The Respondent did not seek costs and none are ordered. _______________________________ MOLLOY J. THEN J. HARVISON YOUNG J. Date: February 14, 2013