Ford government loses appeal to keep ministers' mandate letters secret at Ontario's top court

The Ontario government's appeal to keep Premier Doug Ford's mandate letters to his cabinet ministers secret was dismissed by the province's top court on Friday. 

Mandate letters traditionally lay out the marching orders a premier has for each of his or her ministers after taking office — and have been routinely made public by governments across the country.

Ford's government has been fighting to keep his mandate letters from the public since shortly after the premier took office three-and-a-half years ago. In July 2018, CBC News first requested a copy of the 23 letters through an access-to- information request, which was denied under an exemption for cabinet records.

Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from disclosure, under what's commonly referred to as the cabinet record exemption.

Despite being ordered to disclose the letters by Ontario's former information and privacy commissioner (IPC) — and losing a judicial review of that decision in Divisional Court — the government continued to argue the roughly 150 pages of records would reveal the substance of cabinet deliberations at the Ontario Court of Appeal in September of last year.

2-1 decision dismisses appeal

But in a 2-1 ruling released Friday, the court found that both the IPC's original decision and the Divisional Court's review were reasonable and dismissed the government's appeal. 

"The letters are the culmination of [the] deliberative process," wrote Justice Lorne Sossin. "While they highlight the decisions the premier ultimately made, they do not shed light on the process used to make those decisions, or the alternatives rejected along the way.

"Accordingly, the letters do not threaten to divulge cabinet's deliberative process or its formulation of policies."

Justice Eileen Gillese agreed with Sossin — but the third member of the panel dissented. Justice Peter Lauwers found both the IPC and Divisional Court decisions unreasonable and argued the mandate letters should not be disclosed because they met the bar for exemption as cabinet records.

"The purpose of the exemption is to establish a robust and well-protected sphere of confidentiality within which cabinet can function effectively, one that is consistent with the established conventions and traditions of cabinet government," wrote Lauwers in his dissent. 

"I conclude that the commissioner's interpretation was unreasonable because the effect of his order, contrary to the legislature's intention, was to breach, erode, or undermine those traditions."

This is the first case in Canada to consider whether a government's mandate letters meet the criteria for exemption as cabinet records. 

Province can try to appeal to Canada's top court

CBC News asked the Ministry of the Attorney General for comment on the Ontario Court of Appeal decision — and whether or not the government plans to seek leave to appeal to the Supreme Court of Canada. In an email, a spokesperson said it would be inappropriate to comment because the matter is before the courts.

The government has 60 days to submit an application for leave to appeal. If it seeks leave and the country's top court refuses to hear the case, the province will have to release the mandate letters.

Ontario's previous government — under Premier Kathleen Wynne — posted its mandate letters publicly on the province's website, a practice that has become the norm across most of the country since Prime Minister Justin Trudeau made his own letters public in 2015.

Ford issued a new set of mandate letters to his cabinet ministers in the fall of last year.

CBC News filed an access-to-information request for the records, which was denied. The decision cited the cabinet record FIPPA exemption, along with three new exemptions for advice to government, solicitor-client privilege and records that "affect the economic or other interests of Ontario." CBC News has appealed the decision to the IPC.

Cost to taxpayers unknown

It's unclear how many tax dollars and government resources have gone toward trying to deny the public access to the mandate letters.

For more than two years CBC News has been trying to obtain information on how much time Crown attorneys have devoted to the mandate letter case. The Ministry of the Attorney General has denied two access-to-information requests, claiming attorney-client privilege.

The latest access request, which was for the total number of hours Crown attorneys have spent on the case from July 2018 to July 2021, is now in the appeals stage at the IPC.

Documents obtained by CBC News concerning its original access-to-information request for the mandate letters make it clear that senior officials inside the Ford government planned to keep the records from public view. 

In an email dated July 31, 2018, the then-executive director of policy to the premier, Greg Harrington, says, "here's the letters. As I said, the intention is to keep them to ourselves as long as possible."