Ontario tells court of 'unwarranted incursion' into cabinet in mandate letters case

The Ontario government is telling the country's top court the disclosure of ministerial mandate letters would reveal the substance of deliberations of the premier and his cabinet -- breaching a key tenet of Westminster-style government.

In a written brief filed with the Supreme Court of Canada, the Ontario attorney general says cabinet confidentiality, candour and solidarity are fundamental to a system where responsible ministers collectively decide government policy.

The court is set to hear oral arguments today concerning Ontario's attempt to block the release of 23 letters Premier Doug Ford wrote to cabinet ministers shortly after his Progressive Conservative government took office five years ago.

The cabinet office refused the CBC's freedom-of-information request for the letters, citing a cabinet privilege exemption in the Freedom of Information and Protection of Privacy Act.

The CBC appealed to the Ontario information and privacy commissioner, who ordered release of the letters to the public broadcaster.

A divisional court dismissed the attorney general's application for judicial review, and the Ontario Court of Appeal upheld the decision.

That prompted Ontario to take its case to the Supreme Court.

The province's information and privacy commissioner had found no evidence the records in question were tabled at a cabinet meeting, weighed the reasons for a particular course of action, or spelled out the views or ideas of cabinet members.

As a result, the commissioner found the cabinet office had not shown the letters would reveal the substance of cabinet deliberations.

In its submission to the Supreme Court, the Ontario attorney general says the commissioner's narrow and restrictive interpretation of "substance of deliberations" is an "unwarranted incursion" into the functioning of cabinet.

In its own written brief, the commissioner asks the top court to consider whether the decision to order disclosure bears the "hallmarks of reasonableness in terms of justification, transparency and intelligibility, particularly in light of the history of the proceedings, the evidence and submissions presented, and the established case law that went unchallenged."

The CBC is also urging the Supreme Court to dismiss the appeal.

The broadcaster argues that Ontario is inviting the top court to "decide this case afresh -- and to do so largely based on arguments, positions, and authorities that were never even put before the (information and privacy commissioner)."

This report by The Canadian Press was first published April 18, 2023.