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Supreme Court of Canada: limits on government disclosure include policy options

By Liane Fong

The Supreme Court of Canada (SCC) has issued a unanimous decision in John Doe v Ontario (Finance) 2014 SCC 36 that outlines the parameters on the ability of the public to access information under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) that is prepared for the purposes of informing the deliberative processes of government bodies.

In sheltering draft policy options from public access by fitting it within an exemption for ‘advice or recommendations’ prepared for a public institution, Canada’s highest court provided helpful discussion on where the presumption for public right of access to government information will butt up against the boundaries of the goal of preserving space for public servants or consultants to produce ‘full, free and frank advice’.

Following amendments to the Ontario Corporations Tax Act RSO 1990 c. C. 40 to eliminate a loophole for tax havens, a request for the disclosure of records related to considerations of the effective date and retroactive application of the amendments was made to the Ministry of Finance and the Ministry of Revenue. Responsive records included draft versions of a paper that formed part of the briefings of the minister, deputy minister, assistant deputy minister of finance and the Office of Budget and Taxation, and discussed when the amendments should take effect, including express statements regarding which options were not recommended…

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