) ) LIFELABS LP Applicant/Moving Party – v. –, 2023 ONSC 585

CITATION: LifeLabs LP v. Information and Privacy Commissioner of Ontario 2023 ONSC 585 DIVISIONAL COURT FILE NO.: 053/21 DATE: 20230123 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, O’Brien and Schabas JJ. BETWEEN: ) ) LIFELABS LP Applicant/Moving Party – and – INFORMATION AND PRIVACYCOMMISSIONER OF ONTARIO Respondent/Responding Party ) ) ) ) ) ) ) ) ) ) ) Alexandra E. Cocks and Amanda D.

Iarusso,for the ApplicantLinda Hsiao-Chia Chen for the Respondent Robin Gage, for the Information and PrivacyCommissioner for British Columbia, Intervener ) ) ) ) HEARD at Toronto by videoconference:January 16, 2023 Schabas J. REASONS FOR DECISION Overview [1] LifeLabs LP (“LifeLabs”) moves to vary the Order of Corbett J. dated October 11, 2022 (2022 ONSC 5751 (Div. Ct.)),dismissing LifeLabs’ motion for production of documents from the Information and Privacy Commissioner of Ontario (“IPC”), whichLifeLabs asserts are necessary for its underlying application for judicial review.

As I explain below, we see no grounds to vary the order.The motion judge made no errors of law, nor in reaching his conclusions did he commit any palpable and overriding error of fact or ofmixed fact and law. Background [2] LifeLabs is a provider of general health diagnostic and medical testing services. In the fall of 2019, LifeLabs was the victimof a cyber-attack on its computer systems. Because of the concern about disclosure of personal health information, LifeLabs reported thematter to the IPC and the British Columbia Office of the Information and Privacy Commissioner (the “OIPC”).

Most of the peoplewhose personal information may have been compromised were located in Ontario and British Columbia. [3] The IPC and OIPC (collectively, the “Commissioners”) then commenced a coordinated investigation into the cyber attackunder their respective legislation: Ontario’s Personal Health Information Protection Act, S.O. 2004, c. 3, Sched. A; and BritishColumbia’s Personal Information Protection Act, S.B.C. 2003, c. 63. [4] The IPC and OIPC conducted the investigation jointly. This included making demands for production of documents andrecords from LifeLabs.

LifeLabs asserted solicitor-client privilege, litigation privilege and confidentiality over some documents, which itlisted for the IPC and OIPC. This claim was rejected by the IPC in PHIPA Decision 114, dated March 30, 2020 (Life Labs LP (Re), (Ont. I.P.C.)). [5] LifeLabs commenced an appeal of PHIPA Decision 114, but subsequently provided the documents to the IPC and OIPC anddid not pursue the appeal. At the time, LifeLabs stated its position that the provision of the documents did not constitute a waiver of any

claim of privilege or confidentiality over them. The IPC and OIPC, in a joint response, disagreed with LifeLabs, but nevertheless undertook to identify any information from the documents that it intended to include in the report of the investigation and give LifeLabs an opportunity to respond. [ 6 ] In May 2020, the IPC and OIPC advised LifeLabs of the information from the documents produced by LifeLabs that they contemplated including in the final report.

LifeLabs submitted evidence and argument to the IPC and OIPC to support its privilege and confidentiality claims over the documents. [ 7 ] On June 25, 2020, the IPC and OIPC issued a joint decision rejecting LifeLabs’ claims of privilege and confidentiality (the “Privilege Decision”). On the same day, the IPC and OIPC provided LifeLabs with the Final Investigation Report, prepared jointly by the two Commissions. The application for judicial review and production motion [ 8 ] LifeLabs commenced applications for judicial review of the Privilege Decision in this Court and in the Supreme Court of British Columbia.

LifeLabs has not sought judicial review of the Final Investigation Report; however, it has not been released to the public pending the challenge to the Privilege Decision, as the Final Investigation Report contains the disputed information. [ 9 ] LifeLabs’ application for judicial review, among other things, submits the Privilege Decision was wrong in law in rejecting the claims of privilege and confidentiality. LifeLabs also argues that the collaboration by the IPC and OIPC in jointly deliberating and adjudicating the privilege claims was unlawful and unfair.

The application also challenges the IPC’s power to compel production of privileged documents and the IPC’s right to disclose their contents to the public. [ 10 ] The IPC filed public and private records of its proceedings with the Court. LifeLabs then brought a motion seeking production of additional documents from the IPC that it submits are necessary to determine the issue of procedural fairness and which should form part of the record of proceedings on the judicial review application. The categories of documents sought are as follows: (

a) any documents, including background policies and internal memoranda, that governed the decision-making process of the IPC resulting in the Privilege Decision; (

b) the documents the IPC considered and generated during the decision-making process of the IPC resulting in the Privilege Decision; (

c) all correspondence, including with the OIPC, about the decision-making process for the Privilege Decision and/or about the drafting and content of the Privilege Decision; and (

d) all correspondence, including with the OIPC, relating to the timing of the Privilege Decision and the timing of the release of the Final Investigation Report. [ 11 ] Lifelabs’ motion was dismissed. The motion judge found that the documents requested were all protected by deliberative privilege and should not form part of the record before this Court. Jurisdiction and standard of review [ 12 ] A motion to vary a decision of a single judge under s. 21(5) of the Courts of Justice Act , R.S.O. 1990, c.

C.43 shall only be granted if the motion judge made an error of law, which is reviewed on a correctness standard, or made a palpable and overriding error of fact or mixed fact and law. Issues [ 13 ] LifeLabs raises two issues on this motion. It submits that the motion judge erred by: (1) misapplying the law on deliberative secrecy; and (2) failing to give weight to evidence that supported disclosure of some of the documents. Discussion No errors of law [ 14 ] The motion judge discussed what should be included in a record of proceedings for judicial review.

He cited the relevant statute and the oft-quoted decision of Lord Denning in R. v. Northumberland Compensation Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-2 ; quoted with approval in Endicott v. Ontario (Director, Office of the Independent Police Review) , 2014 ONCA 363 , at para. 43 .

The motion judge understood that he could, and in appropriate cases should, order production of more documents from a decision-maker where it is necessary to properly adjudicate the issues raised. [ 15 ] The motion judge also quoted an accurate statement of the law relating to deliberative secrecy in Summit Energy Management Inc. v. Ontario Energy Board , 2012 ONSC 2753 (Div. Ct.), paras. 76-82 , which recognized that this principle applies to administrative tribunals, although less strongly than to the courts. The motion judge recognized that adjudicative privilege, as he called it, could be

displaced where it was necessary to establish procedural unfairness or a breach of natural justice.

He observed, correctly, at para. 17, thatthe party seeking to pierce deliberative secrecy bears the onus, and that “this onus is not discharged on the basis of speculation,conjecture or simple allegation alone: there must be a foundation before the court for the allegation that not only raises an issue ofprocedural fairness, but also justifies displacing the privilege in order to adjudicate the procedural fairness issue.” [16] This conclusion is consistent with the law stated by the Supreme Court of Canada in Tremblay v.

Quebec (C.A.S.), (SCC), [1992] 1 S.C.R. 952, at 966, that although “secrecy remains the rule”, “it may nonetheless be lifted when thelitigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.” The Court wenton to suggest that this would be limited to “exceptional cases.” See also: Payne v. Ontario (Human Rights Commission), (Ont. C.A.), at para. 172. [17] In short, the motion judge made no errors of law.

No errors of fact or of mixed fact and law [18] The motion judge’s conclusions regarding the specific requests of LifeLabs are findings of fact or mixed fact and law. Thesefindings are entitled to deference and should not be disturbed in the absence of a palpable and overriding error. [19] As found by the motion judge, the categories of documents sought by LifeLabs are covered by the principle of deliberativesecrecy, or adjudicative privilege.

The motion judge noted that the request for documents in category (c), in particular, “strikes at theheart of adjudicative privilege.” On this motion, these findings have not been challenged, and are, in any event, findings of fact, orfindings of mixed fact and law. [20] The motion judge was also aware of the onus on a litigant seeking to displace deliberative secrecy and concluded it had notbeen met on the record before him in respect of any of the categories.

The motion judge’s conclusion reveals no palpable and overridingerror. [21] LifeLabs’ requests are premised on its central argument that the joint decision-making process was unlawful or unfair becausethe two Commissioners collaborated on the adjudication of the applicant’s privilege and confidentiality claims. However, the proprietyof the Commissioners proceeding jointly is an issue for the panel hearing the application. The motion judge recognized this and found,effectively, that it is at least premature to order production of the Commissioners’ deliberative communications.

As the motion judgestated respecting documents in category (

c) at paras. 25 and 26: Until a court finds that the Commissioners should not have conducted a joint investigation, the impugned decisions are taken to becorrect. If a panel of this court concludes that the impugned decision should not have been made by way of a process of joint investigation anddecision-making, then that panel can consider what the appropriate remedy should be.

Unless and until that happens, adjudicativeprivilege applies to this category of documents, and it is not defeated by an allegation that the process ought not to have been joint.Further, this decision should not be taken to imply that adjudicative privilege is lost if the two Commissioners should not have proceededjointly: that issue, to the extent that it may need to be addressed, is a matter for the panel to decide. [22] There is no basis to interfere with the conclusion of the motion judge. There is no dispute that the two Commissionerscollaborated on the Privilege Decision.

Among other things, they did so by sharing draft decisions and other information. It is notnecessary, therefore, to pierce deliberative secrecy for LifeLabs to advance its argument that the Commissioners should not havecollaborated in the first place. [23] The motion judge’s finding that “no basis is stated to defeat adjudicative privilege” respecting documents in category (

a) alsoreveals no palpable and overriding error that would justify interference on appeal. There was no evidence before the motion judge tosuggest that policies, internal memoranda or other documents “that governed the decision-making process” would support a claim thatthere was procedural unfairness or a breach of natural justice.

As the motion judge stated at para. 21, “[t]hey would be irrelevant to thebases alleged for procedural unfairness.” [24] LifeLabs complains that the motion judge did not refer to its evidence that the IPC and OIPC consulted technical experts andthat the Commissioners refused to provide details of their expertise or how those experts were involved in the deliberations leading to thePrivilege Decision. However, the motion judge is not required to refer to all the evidence.

Further, he was mindful of the applicant’sposition when he referred to “documents ‘generated’ by IPC staff” and “staff analysis and reports” when addressing category (b). [25] The motion judge found that all appropriate internal documents were already included in the record and that the record shouldnot include internal documents such as staff analyses or reports. In Eastside Pharmacy Ltd. v.

British Columbia (Minister of Health),2019 BCCA 60, the British Columbia Court of Appeal stated at para. 49 that the principle of deliberative secrecy “grants protections tointernal consultative processes that involve interactions between adjudicators who hear cases and other members of a tribunal, withinspecified parameters. Absent some evidence that a tribunal failed to follow the proper parameters, a court may not reverse thepresumption of regularity of the administrative process: Ellis-Don Ltd. v.

Ontario (Labour Relations Board), 2001 SCC 4 at paras. 52,53, 55.” The motion judge’s finding regarding category (

b) is consistent with the principle articulated in Eastside. [26] LifeLabs did not advance any specific submissions related to records in category (d), which the motion judge declined to orderbe produced for the same reasons as documents in category (c). There is no basis to interfere with that finding. Conclusion [27] The motion is dismissed. As agreed between the parties, there is no order respecting costs.

Schabas J. I agree________________________________ Stewart J. I agree________________________________ O’Brien J. Released: January 23, 2023 CITATION : LifeLabs LP v. Information and Privacy Commissioner of Ontario, 2023 ONSC 428 DIVISIONAL COURT FILE NO .: 053/21 DATE : 20230123 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, O’Brien and Schabas JJ. LIFELABS LP Applicant – and – INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondent REASONS FOR decision Schabas J. Released: January 23, 2023