Factum of ARPA Canada in FIPPA Challenge

Court File No.
: 15-64024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA

and PATRICIA MALONEY
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondent
APPLICATION UNDER rules 14.05(2) and 38 of the Rules of Civil Procedure.
FACTUM OF THE APPLICANTS
VINCENT DAGENAIS GIBSON LLP/s.r.l.

260 Dalhousie Street, Suite 400
Ottawa, Ontario K1N 7E4
ALBERTOS POLIZOGOPOULOS
JOHN SIKKEMA
Tel : (613) 241-2701
Fax : (613) 241-2599
Solicitors for the Applicants
TO: Ministry of Attorney General
Constitutional Law Branch
720 Bay Street, 4th Floor
Toronto, Ontario M7A 2S9
Daniel Guttman
Tel: 416-326-4465
Fax: 416-326-4015
Lawyer for the Respondent
Contents
PART I: OVERVIEW ...................................................................................................................2

PART II: FACTS ...........................................................................................................................6
A. The Applicants .......................................................................................................................6
1. Patricia Maloney ................................................................................................................6
2. ARPA Canada .....................................................................................................................6
B. The introduction of the section 65(5.7) exclusion in FIPPA ..................................................7
C. Abortion-related FOI requests after Bill 122 ........................................................................11
1. Ms. Maloney’s post-Bill 122 attempt at obtaining information .......................................11
PART III: ISSUES, LAW, AND ARGUMENT ........................................................................12
A. Issues ....................................................................................................................................12
B. Argument ..............................................................................................................................13
Issue 1: Does section 65(5.7) of FIPPA violate section 2(b) of the Charter? ..................13
1. The Legislative Framework .........................................................................................13
(a) Access to information legislation and democracy .................................................13
(b) The statutory purposes and principles of FIPPA ...................................................14
(c) The principles of FIPPA and the Charter ..............................................................16
(d) Exemptions versus exclusions ...............................................................................17
(i) FIPPA exemptions .............................................................................................18
(ii) FIPPA exclusions .............................................................................................20
2. Section 65(5.7) causes a prima facie violation of section 2(b) of the Charter .............20
(a) substantially impedes .............................................................................................22
(b) meaningful public discussion, criticism or commentary .......................................23
(c) on a matter of public importance ...........................................................................28
3. The prima facies section 2(b) protection is not removed by countervailing
considerations..............................................................................................................31
Issue 2: If there is a breach of section 2(b) of the Charter, can the government
justify this breach under section 1 of the Charter ..................................................37
1. There is no limit “prescribed by law” ..........................................................................38
(a) No law granting discretion ....................................................................................38
(b) No intelligible standard governing the exercise of discretion ...............................39
(c) No legal basis for judicial review of decisions to disclose or not to disclose .......41
2. No pressing and substantial objective ..........................................................................42
3. No rational connection between complete exclusion and statutory objective .............43
4. A complete exclusion is not minimally impairing .......................................................44
5. The negative effects of the section 65(5.6) exclusion outweigh the benefits ..............47
Issue 3: What is the appropriate remedy? .......................................................................48
1. Striking down...............................................................................................................48
Issue 4: Costs .......................................................................................................................49
Public-Interest Litigation .................................................................................................50
PART IV: ORDER REQUESTED ........................................................................................52
Schedule “A” ............................................................................................................................53
Schedule “B” ............................................................................................................................55
2
PART I: OVERVIEW
1. The Applicants, Patricia Maloney and the Association for Reformed Political Action (ARPA)
Canada (“ARPA Canada”), make application for an Order pursuant to the Canadian Charter
of Rights and Freedoms1 (the “Charter”):
a. declaring that section 65(5.7) of the Freedom of Information and Access to

Information Act2(“FIPPA”) violates section 2(b) of the Charter and is not saved
under section 1;
b. declaring that section 65(5.7) of FIPPA is of no force or effect, effective
immediately; and,
c. awarding costs on substantial indemnity basis.
2. In 2010, the Ontario Legislature passed Bill 122 – the Broader Public Sector Accountability
Act, 20103 (“Bill 122”) – which, among other things, amended FIPPA. In amending FIPPA,
Bill 122 expanded FIPPA’s reach to healthcare institutions, but it also added section 65(5.7),
a provision that now excludes any and all information “related to the provision of abortion
services” from FIPPA’s reach. Before the section 65(5.7) exclusion came into force, such
information was accessible through FIPPA.
3. Denying access to information which is neither private nor personal violates the freedom of
expression of both Ms. Maloney and ARPA Canada.
4. Prior to the enactment of Bill 122, Ms. Maloney successfully made multiple requests under
FIPPA for information related to the provision of abortion services. In March 2012, a similar
request Ms. Maloney had made was denied, citing the section 65(5.7) exclusion of FIPPA as
the basis of the refusal.
1
Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, Schedule B to the Canada
Act 1982 (UK), 1982, c 11 [Charter].
2
Freedom of Information and Protection of Privacy Act, RSO 1990, c F31 [FIPPA].
3
Bill 122, An Act to increase the financial accountability of organizations in the broader public sector, 2nd
Sess, 39th Leg, Ontario, 2010 (Royal Assent received December 8, 2010) [Bill 122], Applicants’
Application Record (“AAR”), Tab 3-A.
3
5. Ms. Maloney appealed the refusal through the internal mechanisms provided, eventually
bringing an Application for Judicial Review of the refusal and subsequent decisions affirming
the refusal. One month before the hearing of her Application for Judicial Review, the Ministry
of Health provided her with the information she had requested, “outside of the FIPPA”, and
then took the position that her Application for Judicial Review was moot.
6. The Ministry of Health’s decision to provide Ms. Maloney with the information related to the
provision of abortion services which she had requested—information which was limited to the
number of occurrences and the cost associated with a specific type of abortion within a
specific time period—demonstrates that the section 65(5.7) exclusion of any and all
information related to the provision of abortion services is unnecessary and not a reasonable
limit prescribed by law as can be demonstrably justified in a free and democratic society.
7. According to the Supreme Court of Canada in Ontario (Public Safety and Security) v.
Criminal Lawyers Association4 (“Criminal Lawyers”), if a denial of access to information
effectively precludes meaningful public discussion on a matter of public interest, a prima
facie right of access under section 2(b) of the Charter is established. The claimant must go on
to show that there are no countervailing considerations inconsistent with disclosure that would
negate the prima facie right of access derived from section 2(b) of the Charter.
8. The section 65(5.7) exclusion hides or permits the government of Ontario to hide from the
public any and all information in the government’s control related to abortion, which is a
publicly funded procedure in Ontario. The exclusion erases the right of access to information
and removes independent oversight over disclosure decisions with respect to abortion-related
information in the government’s control.
4
Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [Criminal Lawyers],
Applicants’ Book of Authorities (“Applicants’ Authorities”), Tab 1.
4
9. The Applicants, through their writing, speaking, and campaigning, inform and educate
Canadians about abortion. The allocation of taxpayer funds and their use to fund abortions is
an important political issue in Ontario and Canada and the information excluded by section
65(5.7) makes it impossible for the Applicants to ensure transparency within the government
and to participate meaningfully in the democratic process.
10. The section 65(5.7) exclusion impairs the freedom of the Applicants to carry on their
mission of commenting on abortion with a view to educating Canadians about the issue. The
result is a violation of section 2(b) of the Charter.
11. The prima facie freedom of expression claim is not negated by countervailing factors. No
form of privilege protects information of the kind requested by Ms. Maloney in 2012.
Moreover, information related to the provision of abortion services was previously disclosed
under FIPPA and there is no evidence that any interference with the proper functioning of
government institutions resulted. Nor is there any reasonable expectation that disclosing
information related to the provision of abortion services, particularly information that does not
identify particular facilities or providers, would interfere with the proper functioning of
government in the future.
12. The violation of section 2(b) of the Charter cannot be saved under section 1. The
complete lack of a right of access to information related to the provision of abortion services
is not a limit “prescribed by law” as required by section 1, but the consequence of the non-
application of FIPPA or any other law governing access to information. If the government has
discretion to disclose or not disclose records “outside of the Act”, it amounts to plenary
discretion, since neither FIPPA nor any other law governs its exercise or provides a basis for
judicial review. Such discretion is repugnant to the rule of law and cannot satisfy the
5
“prescribed by law” requirement in section 1 of the Charter.
13. The impugned provision serves no pressing and substantial objective. Before section
65(5.7) was added, FIPPA already protected personal and third party information (sections 21
and 17) and allowed government institutions to withhold information in order to protect the
safety or security of persons or facilities (sections 14 and 20). The Personal Health
Information Protection Act (“PHIPA”) already protects personal health information.5 The
section 65(5.7) exclusion therefore contributes nothing further to public safety, security, or
personal privacy. But it does render government information on an important public policy
issue inaccessible to the public.
14. Nor is the impugned provision minimally impairing. It is broad and sweeping on its face.
The Information and Privacy Commissioner (the “IPC”) has confirmed that it excludes from
FIPPA even general statistical and financial information relating to abortion services not tied
to any identifiable facilities or persons.6
15. The section 65(5.7) exclusion is also disproportionate, as per the last stage of the Oakes
analysis.7 Its ills are illustrated by Ms. Maloney’s former ordeal seeking access to government
data on abortion, the disclosure of which posed absolutely no risk to anybody, and by the fact
that, going forward, it is clear that even non-identifying statistical information related to the
provision of abortion services is inaccessible under FIPPA. The section 65(5.7) exclusion
appears to have no benefits whatsoever that the government of Ontario can demonstrate.
5
Personal Health Information Protection Act, SO 2004, C 3, Sched A, at ss. 1-4, 7, 8 [PHIPA].
6
Ministry of Health and Long Term Care (Re), Order PO-3222, Appeal PO12-243, 2013 CanLII 38913,
[Order PO-3222] Applicants’ Authorities, Tab 2; Ottawa Hospital (Re), Order PO-3442, Appeal PA13-
213, 2014 CanLII 79900, [Order PO-3442], Applicants’ Authorities, Tab 3.
7
R. v. Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes]. Applicants’ Authorities, Tab 4.
6
PART II: FACTS

A. The Applicants
1. Patricia Maloney
16. Patricia Maloney is an individual residing in the City of Ottawa, Ontario. Since March
31, 2010, Ms. Maloney has been writing and administering the blog “Run with Life”, which
serves as a platform for the discussion of abortion and sanctity of life issues. “Run with Life”
offers regular commentary on issues of public and political interest and current events related
to abortion.
17. For some time, Ms. Maloney has focussed part of her writing on the number and cost of
abortions in Ontario. In the past, she has obtained (and continues to try to obtain) information
on the cost of abortions in Ontario as paid for by Ontario taxpayers through the Ontario
Health Insurance Plan.
18. Since beginning “Run with Life”, Ms. Maloney has regularly made Freedom of
Information Requests (“FOI Requests”) to the Ontario Ministry of Health and Long-Term
Care (“MOH”) to obtain information regarding the number of abortions performed in
particular time periods and the amount of taxpayer dollars used to fund abortions during
particular time periods.
19. “Run with Life” has become quite popular, attracting over 2,000 visitors per month.
2. ARPA Canada
20. ARPA Canada is a not-for-profit and non-partisan organization devoted to educating,
equipping, and assisting members of Canada’s Reformed churches and the broader Christian
community as they seek to participate in the public square.
21. Since its incorporation in 2007, ARPA Canada has become the primary means through
7
which many Reformed Christians engage socially and politically in their communities,
province, and nation. ARPA Canada coordinates approximately 12 local ARPA chapters
across Canada.
22. ARPA Canada operates and manages the “WeNeedaLaw” campaign, which seeks to
educate and mobilize Canadians regarding Canada’s complete lack of legislation protecting
pre-born children. WeNeedaLaw campaigns for legal protection for pre-born children.
B. The introduction of the section 65(5.7) exclusion in FIPPA
23. In 2010, the Government of Ontario introduced Bill 122, which added section 65(5.7),
among other provisions, to FIPPA. The subsection reads:
(5.7) This Act does not apply to records relating to the provision of
abortion services.
24. The stated purposes of Bill 122 were to ensure transparency and accountability of
hospitals by making them subject to FIPPA, while continuing to protect personal health
information.
25. The addition of section 65(5.7) to FIPPA was never discussed during debate of Bill 122
in the Legislative Assembly of Ontario. In fact, the word “abortion” was never mentioned
during any of the debates or Legislative Committee meetings.8
26. According to Jawhar Kassam—who was Manager of Policy, Research and Issues
Management in the Information, Privacy and Archives Division of the Ministry of
Government Services from October 2011 to March 2015—the section 65(5.7) exclusion “was
proposed to address the OHA’s [Ontario Hospital Association] concerns that the disclosure of
such records could pose risks to the safety and security of patients, hospitals and their staff.”9
8
Affidavit of Colin Postma, AAR, Volume 2, Tab 5.
9
Affidavit of Jawhar Kassam, at para 6, Respondent’s Application Record (“RAR”), Tab 1.
8
27. However, there is not even a scintilla of evidence to suggest that the safety and security
of patients, hospitals and their staff were ever put at risk during the time prior to the section
65(5.7) exclusion, when “information related to the provision of abortion services” was
accessible under FIPPA and when such information had been disclosed in response to FOI
requests.10
28. In its June 25, 2012 Briefing Note on the subject “Abortion Records FIPPA Exclusion”,
the Information, Privacy and Archives Division of the Ministry of Government Services
(“MGS”) contrasts an exclusion with an exemption:
An exclusion removes a record from the jurisdiction of the Act,

meaning that there is no right to obtain access to it under the FOI
process. Where there is a right to seek access to a record under the Act
an exemption requires or permits the withholding of information in
limited circumstances, where legitimate interests need to be protected.
The decision to exempt a record can be challenged, reviewed and
overturned by the Act’s oversight body (e.g. IPC). Further, when a
record falls under the Act it can also be subject to a public interest
override, in circumstances where the public interest in disclosure is
found to outweigh the purpose of the exemption.11
29. The MGS Briefing Note observes that prior to the introduction of the section 65(5.7)
exclusion, abortion records had been requested and disclosed under FIPPA and decisions
denying access had been appealed to the IPC, which reviewed the government’s reliance on
certain exemptions, sometimes upholding a denial of disclosure and sometimes ordering
disclosure. With section 65(5.7) now in force, however, it is just as the MGS Briefing Note
10
Refusals to disclose records were overturned or partially overturned in the following Ontario IPC orders:
Ontario (Health) (Re), Order 202, Appeal 890310, 1990 CanLII 3881, [Order 202]; Applicants’
Authorities, Tab 5; Ontario (Health) (Re), Order PO-1695, Appeal PA-980277-1, 1999 CanLII 14374,
[Order PO-1695] Applicants’ Authorities, Tab 6; Ontario (Health) (Re), Order PO-1747, Appeal PA-
980336-1, 2000 CanLII 20933, [Order PO-1747] Applicants’ Authorities, Tab 7; Ontario (Health and
Long-Term Care) (Re), Order PO-1880, Appeal PA-000196-1, 2001 CanLII 26053, [Order PO-1880]
Applicants’ Authorities, Tab 8; and Ontario (Health and Long-Term Care) (Re), Order PO-2378, Appeal
PA-040173-1, 2005 CanLII 56495, [Order PO-2378] Applicants’ Authorities, Tab 9.
11
Page 2 of the MGS Briefing Note, appendix to Answers to Undertakings from Kassam examination, RAR,
Tab 3.
9
anticipated: “the new exclusion for abortion records will result in abortion records/statistics
becoming inaccessible under FIPPA.”
30. There is no evidence to suggest that disclosing non-identifying information (that is,
information that does not identify particular providers, facilities, or patients) related to the
provision of abortion services could pose a safety or security threat. Any such concerns are
speculative at best. Indeed, Ontario has been unable to point to actual instances of safety or
security threats related to the disclosure of documents related to the provision of abortion
services, instead, pointing to non-relevant events and speculative theories. In response to a
question about the harm in disclosing non-identifying data, Mr. Kassam said (in full):
There have been many incidents in Ontario where the safety and
security of women who receive abortions or staff who have performed
abortions or where the security of health facilities has been threatened
- e.g. the shooting of a physician providing abortion services in
Ancaster, Ontario - see http://www.cbc.ca/news/canada/charge-
dropped-against-suspect-in-shooting-of-ontario-abortion-doctor-
1.780549. There may have been incidents where the safety and
security of staff who have performed abortions or patients has been
threatened as a result of the disclosure of information by Ontario
about abortion service providers, patients or facilities. It is
impossible for Ontario to know what happens with information once it
has been provided to a requester, who is free to disseminate that
information through any media, to anyone. Finally, it is important to
recognize that the disclosure of records related to abortion service
providers and facilities also raises the risk, which is difficult to
quantify, that access to abortion services will be reduced either
because physicians are afraid to provide these services or because
women are afraid to access them [emphasis added].12
31. The CBC News story cited by counsel for Ontario reports that attempted murder charges
against a man named James Kopp were dropped. James Kopp reportedly shot an abortion
provider in Ancaster, Ontario in 1995. There is no mention of any connection between the
attempted murder and an FOI request. Further, there is no other incident—however remote—
12
Further Answers to Kassam Undertakings, RAR, Tab 3, pp. 151-152.
10
of an abortion provider’s security being threatened since then. Even if the James Kopp
incident could be reasonably relied on as justification for the addition of section 65(5.7) to
FIPPA—and the Applicants deny that it can—how can Ontario explain the 15-year delay in
adding the section?
32. Clearly, Ontario is grasping at straws with this after-the-fact reasoning.
33. Ontario says there “may have been” threats resulting from disclosing information “about
abortion service providers, patients or facilities”. Ontario has no evidence of that. Moreover,
prior to section 65(5.7) being enacted, information about providers, patients, or facilities
could be and was withheld anyway, where relevant exemptions applied.13
34. Prior to the section 65(5.7) exclusion being added to FIPPA, the MOH received fourteen
FIPPA requests for documents related to abortion services.14
35. Two of those requests were made by Ms. Maloney. Both were granted in full. With
respect to the other FIPPA requests received by the MOH, one was granted in full, one was
granted in part, four were abandoned before the Ministry made a decision, and in one, the
MOH had no responsive records.15
36. The other five of the fourteen requests were denied and the denials were appealed to the
IPC. In each case, the IPC reviewed the MOH’s reliance on certain exemptions contained in
FIPPA, namely sections 14(1), 17(1), 20, and 21.16 Prior to section 65(5.7) being added to
13
See Order 202, supra, Applicants’ Authorities, Tab 5; Ontario (Health) (Re), Order P-1499, Appeal
P_9700188, 1997 CanLII 11658, [Order P-1499] Applicants’ Authorities, Tab 10; and Order PO-1695,
supra, Applicants’ Authorities, Tab 6; Order PO-2378, supra, Applicants’ Authorities, Tab 9.
14
15
16
See Further Answers to Kassam Undertakings, RAR, Tab 3, pp. 151-152, where the Respondent has
identified the following five IPC Orders as related to requests for abortion-related information from the
MOH: Order 202, supra, Applicants’ Authorities, Tab 5; Order P-1499, supra, Applicants’ Authorities,
Tab 10; Order PO-1747, supra, Applicants’ Authorities, Tab 7; Order PO-1880, supra, Applicants’
Authorities, Tab 8; and Order PO-2378, supra, Applicants’ Authorities, Tab 9. The Applicants found
one other IPC decision to be relevant: Order PO-1695, supra, Applicants’ Authorities 6.
11
FIPPA, refusals had to be justified by reasonable reliance on exemptions, but now any and all
such material is excluded outright, with no justification required.
C. Abortion-related FOI requests after Bill 122
1. Ms. Maloney’s post-Bill 122 attempt at obtaining information

37. In March 2012, Ms. Maloney made an FOI Request for two, two-page charts titled
“Medical Management of Non-Viable Fetus or Intra-Uterine Fetal Demise between 14 and 20
Weeks Gestation Volume by Diagnostic Code and by Service Location, Fiscal Year 2009”
and “Medical Management of Non-Viable Fetus or Intra-Uterine Fetal Demise between 14
and 20 Weeks Gestation Volume by Diagnostic Code and by Service Location, Fiscal Year
2010” (the “Requested Charts”).
38. The MOH refused Ms. Maloney’s FOI Request, relying on the newly enacted section
65(5.7) exclusion. No other explanation was provided.
39. Ms. Maloney appealed the MOH’s decision to the IPC. Ontario opposed Ms. Maloney’s
appeal and the IPC, in Order PO-3222 on June 24, 2013, upheld the MOH’s decision, finding
that the requested information was excluded from FIPPA by section 65(5.7).
40. On or about July 15, 2013, Ms. Maloney requested a review of the IPC’s decision, which
Ontario again opposed. Her Request for Reconsideration was denied by the IPC on October 3,
2013.
41. On or about July 14, 2013, Ms. Maloney filed an Application for Judicial Review of the
IPC’s decision, which Ontario vigorously opposed.
42. After approximately two and a half years of opposing Ms. Maloney’s request and
denying disclosure, and after receiving Ms. Maloney’s factum for her Application for Judicial
Review of the IPC’s decision, Ontario disclosed the Requested Charts “outside the Act”.
43. In disclosing the Requested Charts, Ontario stated:

12
As confirmed by the adjudicator of the Information and Privacy

Commissioner in Re Ministry of Health and Long-Term Care, IPC
Order PO-3222, the record that your client has requested is excluded
from the Freedom of Information and Protection of Privacy Act (the
“Act”) pursuant to section 65(5.7), as the information in the record
“[relates] to the provision of abortion services.” The Ministry of
Health and Long-term Care (MOHLTC) relies on this exclusion to
deny access under the Act.
However, MOHLTC is prepared to disclose the record to your client

outside the Act and to relieve you of the undertaking of confidentiality
with respect to this record. The record being released to your client
contains dated information of a statistical nature at the provincial level
and is enclosed with this letter.
We believe that this provides the relief that your client is seeking in
the above-noted application for judicial review, but please advise
whether you will be proceeding with the application nonetheless. 17
44. Ontario’s position in the present litigation is that disclosure of the Requested Charts did
not pose any threat to health or safety.18 At the same time however, it maintains that such
information must be excluded from FIPPA to avoid speculative safety and security threats.
PART III: ISSUES, LAW, AND ARGUMENT

A. Issues
45. The Applicants submit that the following issues are raised by this Application:
a. Issue 1: Does section 65(5.7) of FIPPA violate section 2(b) of the Charter?
b. Issue 2: If there is a breach of section 2(b) of the Charter, can Ontario justify this
breach under section 1 of the Charter?
c. Issue 3: What is the appropriate remedy?
d. Issue 4: Costs.
17
Affidavit of Patricia Maloney, Exhibit “H”, AAR, Volume 1, Tab 3-H.
18
Answers to Kassam Undertakings, RAR, Tab 3.
13
B. Argument
Issue 1: Does section 65(5.7) of FIPPA violate section 2(b) of the Charter?
1. The Legislative Framework
(a) Access to information legislation and democracy
46. Accountable democratic government depends in large part on an effective legal
framework governing access to information. As the Supreme Court of Canada recognized in
Dagg v. Canada (Minister of Finance):19
The overarching purpose of access to information legislation, then, is

to facilitate democracy. It does so in two related ways. It helps to
ensure first, that citizens have the information required to participate
meaningfully in the democratic process, and secondly, that politicians
20
and bureaucrats remain accountable to the citizenry.
47. The question at the heart of this case is whether governments can avoid accountability on
a particular matter simply by excluding information related to that matter from the right of
access and independent oversight provided by access to information legislation.
48. If public scrutiny regarding the environmental impact of public infrastructure projects
were causing political headaches, for example, could the government simply amend access to
information legislation to say “this Act does not apply to information related to the
environmental impact of public projects”? Other examples are easy to imagine. Such a move
would clearly be against the spirit of access to information legislation as articulated in Dagg.
But that is precisely what Ontario has done with respect to information related to abortion
services.
49. In Order PO-1747 (2000), the IPC ordered the Ministry of Health to disclose statistical
information about the provision of abortions in Ontario, explaining:
The information at issue in this appeal consists of general statistical

information on a province-wide basis. This information cannot be
19
Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403, [Dagg], Applicants’ Authorities, Tab 11.
20
Dagg, supra, at para 61, Applicants’ Authorities, Tab 11.
14
linked to any individual facility or person involved in the provision of

abortion services. I do not accept that the sequence of events, from
disclosure to the harms outlined in sections 14(1)(e) and (i), could
reasonably be expected to occur. […] The evidence before me does
not establish a reasonable expectation of endangerment to the life or
physical safety of any person, or to the security of a building, vehicle
or system or procedure […]. This finding is in keeping with a
fundamental purpose of the Act, as recognized by the Supreme Court
of Canada [in Dagg].21
(b) The statutory purposes and principles of FIPPA
50. The purposes of FIPPA are spelled out in section 1. They are, first, to provide a right of
access to information under the control of “institutions” as defined in section 2, and, second,
to protect the privacy of individuals with respect to personal information about themselves
held by institutions.
51. The first purpose is further broken down into three principles in section 1(a)(i)-(iii).
Section 1 of FIPPA states:
Purposes
1. The purposes of this Act are,
(a) to provide a right of access to information under the control

of institutions in accordance with the principles that,
(i) information should be available to the public,
(ii) necessary exemptions from the right of access

should be limited and specific, and
(iii) decisions on the disclosure of government

information should be reviewed independently of
government; and
(b) to protect the privacy of individuals with respect to

personal information about themselves held by institutions and
to provide individuals with a right of access to that
information.
21
Order PO-1747, supra, at 11, Applicants’ Authorities, Tab 7.
15
52. The section 65(5.7) exclusion is contrary to all three principles set out in section 1(a).
53. First, the general right of access to information which lies at the heart of FIPPA no longer
applies to abortion-related information. As the MGS Briefing Note states, “An exclusion
removes a record from the jurisdiction of the Act, meaning that there is no right to obtain
access to it under the FOI process.”22
54. Second, rather than “limited and specific” exemptions limiting access to information
about the provision of abortion services, which can only be relied on by a government
institution where reliance is justified using evidence,23 FIPPA’s exemptions, like its general
right of access, no longer apply here. If the information in question has “some connection”
with the provisions of abortion services, it is inaccessible.24
55. Third, with the section 65(5.7) exclusion, there is no longer effective independent oversight
of disclosure decisions with respect to information related to the provision of abortion services.
The IPC derives its existence and powers from FIPPA, but FIPPA no longer applies where
“information related to the provision of abortion services” is the subject of a request. As
previously noted above, the MGS Briefing Note contrasts exclusions and exemptions:
An exclusion removes a record from the jurisdiction of the Act,

meaning that there is no right to obtain access to it under the FOI
process. Where there is a right to seek access to a record under the Act
an exemption requires or permits the withholding information in
limited circumstances, where legitimate interests need to be protected.
The decision to exempt a record can be challenged, reviewed and
overturned by the Act's oversight body (e.g. IPC). Further, when a
record falls under the Act It can also be subject to a public interest
override, in circumstances where the public interest in disclosure is
found to outweigh the purpose of the exemption [emphasis added].25
22
MGS Briefing Note, appendix to Answers to Undertakings from Kassam examination, RAR, Tab 3.
23
Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy
Commissioner), [2014] 1 SCR 674, at paras 52-59, [Ontario v IPC] Applicants’ Authorities, Tab 12.
24
Order PO-3222 and Order PO-3442, supra, Applicants’ Authorities, Tabs 2 and 3.
25
16
56. The IPC is now unable to exercise oversight over government decisions with respect to
the non-disclosure of records related to the provision of abortion services (except on the
question of whether or not the section 65(5.7) exclusion applies to the records in question). A
decision about whether an exclusion applies is really a decision about whether FIPPA applies.
(c) The principles of FIPPA and the Charter

57. So the section 65(5.7) exclusion is contrary to the core principles of FIPPA. Of course, if
a right of access were merely statutory, the legislature could take it away as freely as it can
give it. Where, however, a right is also protected by the Charter, the removal or limitation of
that right can properly be subjected to Charter scrutiny.
58. The Supreme Court of Canada in Dagg (1997) recognized the importance of access to
information legislation in facilitating democracy, as noted earlier (para 46). In other cases, the
Supreme Court of Canada affirmed the important connection between a right of access to
information—the first purpose of FIPPA—and freedom of expression under the Charter.
59. In CBC v. Lessard26 (1991), the Supreme Court observed that “the freedom to
disseminate would be of little value if the freedom under s. 2(b) did not also encompass the
right to gather news and other information without undue government interference.”27
60. In CBC v. New Brunswick28 (1996), the Supreme Court stated: “The full and fair
discussion of public institutions, which is vital to any democracy, is the raison d’être of the s.
2(b) guarantees. Debate in the public domain is predicated on an informed public, which in
turn is reliant upon a free and vigorous press.”29
61. In Toronto Star v. Ontario30 (2005), the Supreme Court declared: “Section 2(b) of the
26
CBC v. Lessard, [1991] 3 SCR 421 [Lessard], Applicants’ Authorities, Tab 13.
27
Lessard, supra, at 429, Applicants’ Authorities, Tab 13.
28
CBC v. New Brunswick, [1996] 3 SCR 480 [New Brunswick] Applicants’ Authorities, Tab 14.
29
New Brunswick, supra, at para 23, Applicants’ Authorities, Tab 14.
30
Toronto Star v. Ontario, [2005] 2 SCR 188 [Toronto Star], Applicants’ Authorities, Tab 15.
17
Charter guarantees, in more comprehensive terms, freedom of communication and freedom of
expression. These fundamental and closely related freedoms both depend for their vitality on
public access to information of public interest.”31
62. And in Criminal Lawyers (2010), the Supreme Court recognized a general derivative
right under section 2(b) of the Charter to access information where access is needed to permit
meaningful public discussion, criticism, or commentary on a matter of public interest.32
63. So the first principle in section 1(a) of FIPPA—that information should be available to
the public—finds constitutional support in section 2(b) of the Charter. The second and third
principles meanwhile, find support in section 1 of the Charter, which requires that limits on
Charter freedoms be set out clearly in law, demonstrably justified, and minimally impairing.
(d) Exemptions versus exclusions

64. The objective of exemptions is to balance the right to access public information with
other interests, such as effective operation of government, safety, and privacy. Exclusions,
however, denote information to which the public has no right of access. The legislature has
determined that the public has no right, for example, to access prosecution records in an
ongoing case.33
65. Daniel Guttman, who was counsel for Ontario in Criminal Lawyers, explains the purpose
of exemptions:
The inclusion of these exemptions [sections 12-22 of FIPPA] reflects a

careful balancing by the legislature of competing interests (i.e. giving
access to government-held information while maintaining the ability to
prevent harm from the disclosure of certain types of information).34
66. With exclusions, however, the government need not identify any harms in order to justify
31
Toronto Star, supra, at para 2, Applicants’ Authorities, Tab 15.
32
Criminal Lawyers, supra, at para 5, Applicants’ Authorities, Tab 1.
33
FIPPA, supra, s. 65(5.2).
34
Daniel Guttman, “Criminal Lawyers’ Assn. v Ontario: A Limited Right to Government Information under
Section 2(b) of the Charter” (2010), 51 SCLR (2d) 199, at para 4, [Guttman] Applicants’ Authorities, Tab 5.
18
not disclosing records relevant to the request. The Ontario Court of Appeal explained the
difference between exclusions and exemptions in this way:
By using the words 'this Act does not apply', the legislature has
distinguished exclusions from exemptions, and has declared that the
‘delicate balance between the need to provide access to government
records and the right to protection of personal privacy’, which
engages the expertise of the Privacy Commissioner, plays no role in
relation to the enumerated [excluded] records.35
(i) FIPPA Exemptions
67. All exemptions in FIPPA use the phrase “a head shall refuse to disclose a record where”
(so-called “mandatory exemptions”) or “a head may refuse to disclose a record…” (so-called
“discretionary exemptions”) or some slight variation thereof.36
68. Some exemptions require a “head” (defined in section 2(1)) to exercise discretion in
deciding whether or not disclosure of a requested record would have a certain effect, such as:
revealing the substance of deliberations of the Executive Council or its committees (section.
12); revealing the advice or recommendations of a public servant or consultant (section 13);
interference with a law enforcement matter, investigation, or fair trial (section 14); prejudice
the conduct of intergovernmental relations by the Government of Ontario (section 15);
prejudice the defence of Canada or allied state (section 16); or reveal a trade secret or other
information supplied to government in confidence (section 17). These and other exemptions
contain their own internal limits or exceptions. For example, the exemption in section 13 does
not apply to a record containing factual material, statistical surveys, valuator reports, and
similar kinds of information.
35
Ontario (Solicitor General) v. Mitchinson (2001), 55 O.R. (3d) 355 (C.A.), at para 30 [Mitchinson],
Applicants’ Authorities, Tab 16.
36
For a helpful summary of how exemptions are categorized, see Vincent Kazmierski, “Lights, Judges,
Access: How Active Judicial Review of Discretionary Decisions Protects Access to Government
Information” (2013) 51:1 Alta L Rev 49, at paras 8-11 [Kazmierski], Applicants Authorities, Tab 26.
19
69. If a head concludes that disclosure will have the effect mentioned in a given exemption,
and that the exemption otherwise applies, some exemptions say a head “may” then refuse to
disclose the requested record (“discretionary exemptions”), whereas others say a head “shall
not” disclose (“mandatory exemptions”).
70. Other exemptions require a head to determine whether information falls within a certain
category. These are sometimes called “class-based exemptions”.37 Section 21 (personal
information) is an example of a class-based mandatory exemption, subject to the public
interest override contained in section 23.
71. The so-called “mandatory exemptions” are found only in sections 12, 17, and 21 of
FIPPA. However, FIPPA’s public interest override applies to sections 17 and 21 (as well as to
the discretionary exemptions in sections 13, 15, 18, 20, and 21.1). That means that the only
absolute mandatory exemption is found in section 12 (executive privilege). A head shall not
disclose a record that would reveal information protected by executive privilege even if, in the
head’s judgement, it would be in the public interest to do so.
72. All exemptions must be interpreted in light of the principles of FIPPA (section 1(a)),
namely that government information should be available to the public and exemptions should
be limited and specific. Exemptions balance the right to access public information with other
legitimate objectives, such as safety, privacy, and the effective functioning of government.38
73. Exemptions apply where a request for a record falls within the scope of FIPPA and its
right of access in section 10, but other considerations (such as privacy, public safety, etc.)
may weigh against disclosure. This explains why FIPPA has a general provision (section 23)
precluding relying on most exemptions “where a compelling public interest in the disclosure
37
Kazmierski, Ibid, at paras 8-11, Applicants’ Authorities, Tab 26.
38
Criminal Lawyers, supra, at para 2, Applicants’ Authorities, Tab 1; Mitchinson, supra,
at para 30, Applicants’ Authorities, Tab 16.
20
of the record clearly outweighs the purpose of the exemption”.
(ii) FIPPA Exclusions
74. Whereas most exemptions require heads of institutions to decide whether or not certain
consequences will occur if information is disclosed (decisions which heads are uniquely
placed to make), exclusions simply limit the scope of the Act.
75. The Kassam Affidavit states:
A decision was made to propose an exclusion instead of an exemption in

order to give institutions with such records the ability to make case by case
decisions about what information to disclose, or not disclose, based on the
many different and specific considerations that apply in each case.39
But that is what exemptions do. Indeed, that is what the entire FIPPA framework does, but
FIPPA does not apply to abortion data. Kassam has wrongly attributed the purpose of
exemptions to the term exclusions.
76. The purpose of exclusions is not to grant statutory discretion to disclose or not disclose
depending on various considerations that may apply. That is the purpose of exemptions. The
non-application of FIPPA is not FIPPA-granted statutory discretion.
77. If the Applicants make a request for information that falls “outside of FIPPA”, they may
get a refusal or they may not, but there is no legal framework, no statutory grant of discretion,
and no legal standard on which a court could review such a decision.
78. The section 65(5.7) exclusion therefore provides no accountability and no oversight.
2. Section 65(5.7) causes a prima facie violation of section 2(b) of the Charter
79. Daniel Guttman has commented on the Supreme Court of Canada’s ruling on the
Criminal Lawyers case in the Supreme Court Law Review:
The recognition of a new Charter right to information will cause all

governments to carefully consider the constitutional validity of the
39
Affidavit of Jawhar Kassam, at para 10, RAR, Tab 1.
21
provisions of their existing access legislation and proceed cautiously

with any amendments that reduce access.40
80. Those words were published before the section 65(5.7) exclusion was enacted.
Unfortunately, the government of Ontario did not heed Mr. Guttman’s good advice.
81. The case at bar involves a particularly egregious, blanket denial of the right to access
information about a publicly funded service—information that is needed to inform meaningful
public discussion, criticism, and accurate commentary on the issue of abortion (which remains
perhaps the most controversial political and social issue in Canada) and related issues of pre-
born human rights, health policy, and public spending.
82. Access to information is necessary for the exercise of freedom of expression under
section 2(b) of the Charter. Indeed, the Supreme Court of Canada has recognized: “In the case
of demands for government documents, the relevant s. 2(b) purpose is usually the furtherance
of discussion on matters of public importance.”41
83. “To show that access would further the purposes of s. 2(b),” the Supreme Court states,
“the claimant must establish that access is necessary for the meaningful exercise of free
expression on matters of public or political interest.”42 Put in negative terms:
In sum, there is a prima facie case that s. 2(b) may require disclosure of
documents in government hands where it is shown that, without the desired
access, meaningful public discussion and criticism on matters of public interest
would be substantially impeded.43
84. The Applicants submit that the complete exclusion of any and all abortion-related
information in government hands from the right of access in FIPPA results in a prima facie
breach of section 2(b) of the Charter, in accordance with the test set out in Criminal Lawyers.
40
Guttman, supra, at para 87, Applicants’ Authorities, Tab 25.
41
42
43
22
That is, the section 65(5.7) exclusion: (a) substantially impedes (b) meaningful public
discussion, criticism, and commentary on (c) a matter of public importance, namely the
provision of abortion services with public funds.
(b) substantially impedes
85. The MGS Briefing Note on the section 65(5.7) exclusion correctly explains the effect of
FIPPA exclusions: “An exclusion removes a record from the jurisdiction of the Act, meaning
that there is no right to obtain access to it under the FOI process.”44
86. Based on the plain language of the section 65(5.7) exclusion, and as demonstrated by Ms.
Maloney’s 2012 FOI request, all information related to the provision of abortion services,
even the most general statistical information, has indeed become “inaccessible under FIPPA”,
as the MGS Briefing Note anticipated it would.
87. The section 65(5.7) exclusion is broad on its face and would exclude from access such
data in the custody of the Ontario government as (1) the number and types of abortions which
occur in any given time period, (2) the amount of taxpayer dollars used to fund abortions
during any given time period, (3) the rate of medical complications, (4) the gestational age of
aborted fetuses, (5) demographics of women who have had abortions, (6) the number of
repeat abortions, among other information. It would also exclude information about a public
body’s policies on the provision of abortion services.
88. The information excluded by section 65(5.7) is not limited to patients’ personal health
information, which would be protected anyway under PHIPA. Nor is the section 65(5.7)
exclusion limited to information that might identify particular facilities or providers, which
could be withheld or redacted in any case under the exemptions in sections 14, 17, 20, or 21
of FIPPA, depending on the circumstances. Orders PO-3222 and PO-3442 and the plain
44
23
language of section 65(5.7) confirm the breadth of this exclusion.45
89. In Ontario, FIPPA (and the Municipal Freedom of Information and Protection of Privacy
Act) provides the only legal mechanism by which members of the public can seek access to
information in the control of public institutions (as defined in section 2 of FIPPA).
90. Daniel Guttman explains, “FIPPA is remedial legislation that provides a right of access
where none would otherwise exist.”46
91. Most provinces’ access to information legislation specifies that the legislation does not
replace other legal procedures for access to information. For example, Alberta's access to
information legislation says, “This Act is in addition to and does not replace existing
procedures for access to information or records”.47 FIPPA contains no such provision and
there are no legal avenues outside of FIPPA for access to the kind of information the
Applicants seek.
92. Section 10 of FIPPA contains the general right of access to a record or part of a record
where an exemption applies and part of the record can be severed. Where an exemption is
relied on, the IPC has authority to review the records that are responsive to the request to
determine whether the records can be withheld, in whole or in part, based on an exemption.48
93. Having no right to access any abortion-related information seriously undermines Ms.
Maloney’s and ARPA Canada’s ability to carry on their educational and advocacy work on a
matter of public importance. FOI requests for “information related to the provision of abortion
services” will be made in vain.
(c) Meaningful public discussion, criticism or commentary

94. As the IPC stated in Order PO-1747 (2000):
45
Order PO-3222 and Order PO-3442, supra, Applicants’ Authorities, Tabs 2 and 3
46
47
Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25, at s. 3(a).
48
Guttman, supra, at paras 3-4, Applicants’ Authorities, Tab 25.
24
In my view, to deny access to generalized, non-identifying statistics

regarding an important public policy issue such as the provision of
abortion services would have the effect of hindering citizens’ ability
to participate meaningfully in the democratic process and undermine
the government’s accountability to the public.49
95. The plain wording of the section 65(5.7) exclusion and IPC Orders PO-3222 and PO-
3442 make clear that the section 65(5.7) exclusion makes even generalized abortion statistics
that do not identify particular abortion providers inaccessible. When the right of access to
information about a certain public policy issue is completely erased, passing the next
component of the Criminal Lawyers test for prima facie breach follows as a matter of course.
96. The term “meaningful” is not defined by the Supreme Court in Criminal Lawyers but
naturally, the term should be given a broad and liberal meaning, in keeping with the broad and
liberal interpretation always afforded section 2(b) of the Charter.
97. Commenting on the Supreme Court of Canada’s use of the term “meaningful” in the
Criminal Lawyers ruling, Ryder Gilliland, counsel for the Criminal Lawyers Association in
that case, writes:
[…] the scope of the right of access will necessarily expand over time.
This is so for two principal reasons. First, the freedom [of] expression
right from which the right of access derives has always been very
broadly construed. A narrow construction of the words “necessary”
and “meaningful” is inconsistent with the approach to section 2(b)
developed since Ford [([1988] SCJ No 88)]. Second, as access to
information and freedom of expression are recognized as fundamental
to democracy, undue constraint of either right is inconsistent with
modern national and international societal values. There is a clear
trend in the case law towards increased openness and transparency.50
98. For discussion, criticism, or commentary to be meaningful, it needs to be informed. Blind
criticism or commentary regarding Ontario’s policy of publicly funded abortion is not
49
50
Ryder L Gilliland, “Supreme Court Recognizes (a Derivative) Right to Access Information” (2010) 51
SCLR (2d) 233-243, at para 3, Applicants’ Authorities, Tab 27.
25
meaningful discussion, criticism, or commentary.
99. Obtaining information “related to the provision of abortion services” is necessary for
meaningful expression on the issue. More specifically, obtaining accurate information about
the number of abortions performed in Ontario and related statistics, which cannot be obtained
through the Canadian Institute for Health Information (“CIHI”) or by other means, is
necessary in order to meaningfully comment and educate readers about abortion trends in the
province, how much the Ontario government spends on abortion year to year, and so on.
100. While ARPA Canada and Ms. Maloney have and continue to write about abortion since
Bill 122 came into force, their ability to meaningfully discuss the issue is severely limited.
Ms. Maloney and ARPA have and continue to write about the lack any legal protection for the
unborn, about sex-selective abortion, about politicians’ and political parties’ positions on
abortion, however, they are limited in their ability to express themselves on this important
political, social, moral, fiscal, medical and public policy issue.
101. Because of the 65(5.7) exclusion, Ms. Maloney and ARPA are forced to express
themselves on issues related abortion without complete or accurate information.
102. It is no answer to the Applicants’ claim to say, “You can keep talking about abortion
generally, so you do not need access to data in the government’s control about how many
abortions are performed, other related statistics, or total costs to taxpayers.”
103. If the government enacted a provision excluding all information in its control about the
environmental impact of new highways or pipelines, for example, and an environmental
group made a derivative freedom of expression claim, it would be no answer to say, “Look,
you are still saying a lot about environmental issues as it is, just look at your website.”
104. The point of the affidavit of Mark Mancini and of Ontario’s cross-examination of Mike
26
Schoutten on his affidavit appears to be attempts to fill the record with articles by pro-life
individuals and organizations—many of which have no relation or connection to Ms. Maloney
or ARPA—in order to suggest that free expression about abortion-related issues carries on
after Bill 122.51 Some of the articles have nothing to do with abortion-related statistics.52
105. Several of the articles attached to the Mancini Affidavit are actually regarding the section
65(5.7) exclusion and the problems it causes, namely the inability to obtain reliable data for
years after 2012. Other Exhibits to that Affidavit contain commentary on the inaccuracy of
data from CIHI and the need to rely on data obtained through ATI requests. Exhibits Z and
AA to the Mancini Affidavit show pro-life groups writing in 2014, but relying on the data
obtained by Ms. Maloney in 2010 by an ATI request. Exhibit FF to the Mancini Affidavit is
another good example—it mentions (in footnote 1) how, while CIHI reported only 28,765
abortions for Ontario in 2010, a “pro-life researcher” (Ms. Maloney) “made a freedom of
information request” which uncovered that there were actually 43,997.
106. Ontario may want to suggest that the section 65(5.7) exclusion has not impeded Ms.
Maloney and ARPA’s ability to comment on abortion. The only way that could plausibly be
true is if we accept that commentary related to the freedom of expression violation (as it
pertains to abortion) is the equivalent of commentary on abortion itself.
107. It is notable, where discussions about numbers arise in the articles attached to the
Mancini Affidavit, that the numbers discussed are from before Bill 122 came into force.53
108. As with other public policy issues, commentators might estimate numbers for the current
or previous year based on statistics available from two or three years back. With each passing
51
Affidavit of Mark Mancini, Exhibit “A”, RAR, Tab 4.
52
Affidavit of Mark Mancini, Exhibits “S”, “T”, “U”, RAR, Tab 4.
53
Affidavit of Mark Mancini, Exhibits “B”, “D”, “I”, “J”, “N”, “P”, “W”, “AA”, “FF”, RAR, Tab 4.
The article in Exhibit W relies on CIHI numbers for Ontario in 2010, thus erring significantly.
27
year that the section 65(5.7) exclusion is in force, however, the less reasonable it becomes to
do so. We cannot estimate 2016’s numbers based on 2010’s. Nor, having made estimates for
previous years, can commentators hope to verify their estimates when actual statistics become
available, since going forward such statistics will be “inaccessible under FIPPA.”
109. In Criminal Lawyers, the Supreme Court of Canada did not dismiss the freedom of
expression claim by saying that criminal defence lawyers can and do talk a lot about police
misconduct without obtaining records through FIPPA. The issue in that case was whether the
Criminal Lawyers Association could meaningfully comment on how a particular
investigation was handled. The Supreme Court found that much information about that
particular investigation was already available to the public,54 that certain records that were
withheld were protected by privilege,55 and that the 318-page internal investigation report
(although the Criminal Lawyers Association failed to establish that it was necessary under the
Charter) should be reconsidered by the IPC.56
110. The Criminal Lawyers case was very fact specific. None of the records that had been
withheld, which were known to the Court, were considered by the Court to be necessary for
meaningful commentary. The Criminal Lawyers Association failed to establish that
meaningful discussion of the handling of the police investigation and prosecution of the
murder could not be achieved under the existing FIPPA framework—which provided them a
right of access subject to legitimate limitations.57 Nor could the Criminal Lawyers Association
show that changing FIPPA so that the section 23 public interest override also applied to ss. 14
54
55
56
57
28
and 19 would actually help them obtain any additional information.58
111. In the case at bar, Ms. Maloney’s previous effort to obtain information related to abortion
is but one illustration of a broader, structural, and perennial problem caused by the section
65(5.7) exclusion. Going forward from the Criminal Lawyers ruling, the Criminal Lawyers
Association can still count on obtaining information in the government’s control related to
police practices, data about arrests, and so on, subject to necessary, limited, and specific
exemptions (FIPPA, s. 1(a)). The Applicants in the case at bar cannot. The Applicants cannot
afford to repeatedly go through what Ms. Maloney went through before, only to record a
longer history of lacking information.
112. Ms. Maloney’s prior attempt at obtaining information, even that of a statistical nature,
illustrates the problem. She wished to inform herself and her readers about the number of
claims and the total dollar amount that Ontario paid for “medical management of non-viable
fetus or intra-uterine fetal demise between 14 and 20 weeks gestation” (service code P001) in
2009 and 2010.59 But she had no right to know and did not find out until over two years later
(and after incurring approximately $30,000 in legal fees), when the government released the
information “outside the Act”, apparently on a whim or perhaps for litigation strategy
purposes in the face of Ms. Maloney’s factum on her Application for Judicial Review.60
(d) On a matter of public importance
113. Abortion is undoubtedly a matter of public importance. Abortion has been the subject of
many Parliamentary bills and motions,61 court rulings, books, newspaper articles, editorials,
58
Criminal Lawyers, supra, at paras 56 and 61, Applicants’ Authorities, Tab 1.
59
Affidavit of Patricia Maloney, at para 4, AAR, Volume 1, Tab 3.
60
Affidavit of Patricia Maloney, at paras 33-34, AAR, Volume 1, Tab 3.
61
To name a few relevant bills in the last twenty years: Bill C-510, An Act to Prevent Coercion of Pregnant
Women to Abort (Roxanne’s Law), 3rd Sess, 40th Parl, 2008; Bill C-338, Act to amend the Criminal Code
(procuring a miscarriage after twenty weeks gestation), 2nd Sess, 39th Parl, 2007; Bill C-452, An Act to
provide for a referendum to determine whether Canadians wish medically unnecessary abortions to be
29
and debates. The IPC, in a decision ordering disclosure of abortion-related data, called it “an
important public policy issue”.62 It is perhaps the most controversial political, social, moral
and public policy issue of our day.
114. Simply knowing that publicly funded abortion occurs in Ontario is not enough. Accurate
numbers are important. Every abortion matters. Statistical information about the age of
patients, the gestational age of aborted fetuses, complications from the procedure, repeat
procedures, and other information the government may have in its control are all matters of
public importance and public policy. Such information was accessible under FIPPA prior to
the section 65(5.7) exclusion coming into force. Such information remains accessible through
access to information legislation in all other Canadian jurisdictions.63
115. Why is this information too sensitive for public access in Ontario but not in Alberta, or
Manitoba, or Nova Scotia?
116. In Grant v. Torstar Corp.64 , which involved a claim in defamation, a local newspaper
article claiming that a businessman may have exercised political influence to obtain municipal
approval for a golf course was considered to be commentary on a matter of public importance.
The defendant newspaper company used commentary on a matter of public importance as a
defence against a defamation claim. The Supreme Court of Canada stated:
It is simply beyond debate that the limited defences available to press-

related defendants may have the effect of inhibiting political discourse
and debate on matters of public importance, and impeding the cut and
insured services under the Canada Health Act and to amend the Referendum Act, 1st Sess, 37th Parl, 2002;
Bill C-246, An act to amend the Criminal Code to prohibit coercion in medical procedures that offend a
person’s religion or belief that human life is inviolable, 1st Sess, 37th Parl; Bill C-208, An Act to amend the
Criminal Code (human being), 2nd Sess, 35th Parl, 1996.
62
63
British Columbia is the only other jurisdiction in Canada whose access to information legislation mentions
“abortion”. In British Columbia, some (but not all) abortion-related information is exempted, but not
general, non-identifying information and data related to abortion. Freedom of Information and Protection
of Privacy Act, RSBC 1996, c 165, s. 22.1.
64
Grant v. Torstar Corp., 2009 SCC 61 [Grant], Applicants’ Authorities, Tab 17.
30
thrust of discussion necessary to discovery of the truth.65
117. The Supreme Court of Canada in Torstar interpreted the statutory defence to defamation
with a view to protecting freedom of expression, especially on political matters and matters of
public importance.
118. As Peter Hogg recognizes, “Perhaps the most powerful rationale for constitutional
protection of freedom of expression is its role as an instrument of democratic government.”66
119. When it comes to matters of public policy and public administration, the Supreme Court
has said that “the right to discuss and debate such matters, whether they be social, economic
or political, are essential to the working of a parliamentary democracy such as ours.”67
120. In Irwin Toy Ltd. v Quebec (AG)68, the Supreme Court summarized the core reasons for
protecting free expression:
(1) seeking and attaining the truth is an inherently good activity; (2)
participation in social and political decision-making is to be fostered and
encouraged; and (3) the diversity in forms of individual self-fulfilment
and human flourishing ought to be cultivated.69
121. The Applicants in this case claim a derivative right under section 2(b) of the Charter to
access information related to the government’s provision of abortion. This is an important and
controversial political, social and public policy issue. As such, informed discussion and
commentary on an issue such as this goes to the core of what constitutionally protected free
expression is all about.
122. Robust Charter protection should apply here, if anywhere.
65
Grant, supra, at para. 57, Applicants’ Authorities, Tab 17.
66
Peter W. Hogg, Constitutional Law of Canada: Fifth Edition Supplemented (Thomson Reuters Canada
Ltd.: Toronto, 2007), at 43-7, Applicants’ Authorities, Tab 28.
67
Switzman v. Elbling, [1957] SCR 285 (SCC) at 326, Applicants’ Authorities, Tab 18.
68
Irwin Toy Ltd. v. Quebec (AG), [1989] 1 S.C.R. 927, [Irwin Toy], Applicants’ Authorities, Tab 19.
69
Irwin Toy, supra, at 976, Applicants’ Authorities, Tab 19.
31
3. The prima facie section 2(b) protection is not removed by countervailing considerations
inconsistent with production of the information sought.
123. The Supreme Court in Criminal Lawyers found that section 2(b) of the Charter “includes
a right to access to documents only where access is necessary to permit meaningful discussion
on a matter of public importance, subject to privileges and functional constraints.”70 FIPPA
exemptions set out privileges and functional constraints.
124. A claimant must show that there are no countervailing considerations negating the prima
facie rights claim.71 In the present case, the absence of countervailing considerations is easily
inferred. Indeed, Ontario has been unable to point to any evidence supporting a pressing and
substantial objective. All Ontario has been able to point to is unfounded and speculative
concerns and to one news article dating back to 15 years before the section 65(5.7) exclusion
was introduced.
125. In Criminal Lawyers, the Supreme Court of Canada cites as examples of appropriate
limits on the derivative right to access information: solicitor-client privilege, judicial pre-
judgement memos and notes, and cabinet confidences.72 None of those apply here.
126. In Criminal Lawyers, the government denied disclosure of requested records, relying on
FIPPA exemptions in sections 14 and 19. The Criminal Lawyers Association wished to use
FIPPA’s “public interest override” (section 23) to effectively trump the government’s reliance
on the section 14 and 19 exemptions, but section 23 does not apply to sections 14 or 19. The
Criminal Lawyers Association argued that the non-application of section 23 to sections 14 and
19 violated section 2(b) of the Charter. (Section 23 does not apply to any exclusions.)
127. On this the second part of the Criminal Lawyers test, however, the Supreme Court of
70
Criminal Lawyers, supra, at para 31 (emphasis added), Applicants’ Authorities, Tab 1.
71
72
Criminal Lawyers, supra, at paras 39-40, Applicants’ Authorities, Tab 1.
32
Canada found that the applicants had not established that “access to ss. 14 and 19 documents,
obtained through the s. 23 override, would not impinge on privileges or impair the functioning
of relevant government institutions.” This conclusion was unavoidable, because, “As
discussed, ss. 14 and 19 are intended to protect documents from disclosure on these very
grounds”;73 that is, the grounds of privilege (section 19) and proper functioning of
government (section 14).
128. However, there are no countervailing considerations that would negate the derivative
right to access non-identifying statistical information about the provision of abortion services.
That is why such information was accessible before Bill 122. That is why Ontario’s position
is that disclosure of the records requested by Ms. Maloney in the previous litigation did not
present any risk. And that is why Ontario is unable to point to any evidence to support the
need for excluding such information from FIPPA.
129. Section 65(5.7) excludes even the most general abortion statistics from the right of
access. Pre-Bill 122 IPC Orders granted access to such information, judging that public safety
and other considerations captured by FIPPA did not outweigh the right of access.
130. There is no reason to believe that a right of access to “information related to the provision
of abortion services” would impair the proper functioning of, for example, the MOH.
131. The government failed in pre-Bill 122 cases to justify denying access to non-identifying
statistical abortion-related information.
132. The Ministry of Health received fourteen FIPPA requests prior to January 1, 2012 for
documents related to abortion services.74
133. Two of those requests were made by Ms. Maloney to the MOH and granted in full. With
73
74
33
respect to the other FIPPA requests received by the MOH, one was granted in full, one was
granted in part, four were abandoned before the Ministry made a decision, and in one the
MOH had no responsive records.
134. The other five of the fourteen requests were denied and the denials were appealed to the
IPC. In each case, the IPC reviewed the MOH’s reliance on certain exemptions contained in
FIPPA. These IPC decisions are briefly reviewed below.
135. In Order 202 (1990)75, the IPC upheld the MOH’s decision not to disclose the date, time,
and place of the abortion performed by the appellant’s wife’s physician, and other information
related to that particular procedure. The IPC found that it was “abundantly clear that [the
appellant] was seeking access to information relating to another person, namely his wife.”76
The IPC concluded that the relevant records should not be disclosed, pursuant to s. 21 of
FIPPA.
136. In Order P-1499 (1997)77, the requester sought access to a record revealing the number of
abortions performed by hospital and clinic. The Assistant Commissioner upheld the MOH’s
decision to deny disclosure of the relevant record, which contained listed information under
the headings “HOSPITAL/CLINIC” and “COUNT”. The Assistant Commissioner found that
this record could serve to identify particular facilities and individuals involved in providing
abortion services and that disclosure could therefore reasonably be expected to lead to the
harms described in sections 14(1)(e):
[…] the Ministry and affected parties have provided sufficient

evidence to establish that disclosure of the record could reasonably be
expected to endanger the life or physical safety of individuals
associated with the abortion facilities. […] Although I acknowledge
that similar information has previously been disclosed, I also accept
75
Order 202, supra, Applicants’ Authorities, Tab 5.
76
Order 202, supra, at 6, Applicants’ Authorities, Tab 5.
77
Order P-1499, supra, Applicants’ Authorities, Tab 10.
34
the Ministry’s position that the more abortion-related information that

is made available, such as the numbers associated with each facility,
the more likely specific individuals will be targeted for harassment
and violence.78
137. In Order PO-1747 (2000)79, the IPC dealt with an appeal involving the MOH where the
information at issue consisted of the number of obstetricians/gynaecologists billing OHIP for
therapeutic abortions, as well as the number of therapeutic abortions which were billed to
OHIP on an annual basis over a period of five years. Senior Adjudicator Goodis reviewed a
number of previous IPC orders, as well as other relevant jurisprudence, in determining
whether the information at issue was properly exempt under sections 14(1) and 20. He found
that it was not and ordered disclosure.
In both the animal experimentation and abortion cases, information

associated with individuals or facilities has been found to meet the
“harm” threshold in section 14, while more generalized information
which cannot be linked to specific individuals or facilities, or which
would not reveal new or additional identifying information, has been
considered accessible under the Act.
[…]
Like the B.C. and Ontario cases, the U.S. authorities suggest that
generalized statistical data regarding abortion services should be
accessible under freedom of information legislation.
[…]
In my view, to deny access to generalized, non-identifying statistics

regarding an important public policy issue such as the provision of
abortion services would have the effect of hindering citizens’ ability
to participate meaningfully in the democratic process and undermine
the government’s accountability to the public.80
Senior Adjudicator Goodis ordered the MOH to disclose the relevant records, namely the bill
fee schedules and fee schedule code analyses.
78
Order P-1499, supra, at 4, Applicants’ Authorities, Tab 10.
79
Order PO-1747, supra, Applicants’ Authorities, Tab 7.
80
Order PO-1747, supra, at 9-11, Applicants’ Authorities, Tab 7.
35
138. In Order PO-1880 (2001)81, the IPC reviewed the MOH’s refusal to disclose “the top 10
items the Toronto GP/FP [General Practitioner/Family Practitioner] top biller in 1998/99
billed for, how many times the doctor individually billed those 10 items, and a brief
explanation of the items as described under the Schedule of Benefits.” The relevant record
included information about abortion-related medical services. The requester was not seeking
the identity of the physician, but the MOH relied on section 21 exemptions (personal privacy)
anyway, arguing that the information contained in the responsive record could be used to
identify a particular individual. However, the MOH did not produce sufficient evidence to
show that any individuals could be identified, so the IPC concluded that the MOH could not
rely on the section 21 exemption.
139. The MOH also sought to rely on the section 20 exemption (serious threat to health or
safety), citing violence in relation to anti-abortion protests in the early 1990s as evidence of a
risk of harm. The IPC ordered disclosure of the relevant record, concluding: “The evidence
before me does not establish a reasonable expectation of endangerment to the life or physical
safety of any person within the meaning of section 20.”82
140. Finally, in Order PO-2378 (2005)83, the IPC reviewed the MOH’s refusal to disclose five
records containing the summary pages of the approved budgets for five publicly funded
clinics, relying on the exemptions in section 17(1) (third party information) and section
14(1)(e) (endangering life or safety) and (i) (endangering security of building). The IPC was
not persuaded that disclosure of the overall funding level in each record could reasonably be
expected to result in any of the harms articulated in section 17(1), but accepted that full
disclosure could reasonably be expected to give rise to the harms contemplated in section
81
82
83
36
14(1)(e) because the financial information in question was linked to particular identifiable
clinics. Such harm could not be reasonably expected, however, “when the financial
information contained in the remaining portions of the records, namely the line item from the
Approved Budget documents for each of the facilities […] is disclosed without any other
identifying information attached to it.”84 Consequently, the IPC ordered the MOH to disclose
line items in the relevant documents showing total costs only.
141. The forms of privilege identified by the Supreme Court in Criminal Lawyers were never
relied on by the MOH in any of the pre-Bill 122 IPC decisions reviewed above.85
142. There are no new concerns today that could be considered countervailing considerations
negating the derivative Charter right to access such information.
143. There is not even a scintilla of evidence that revealing non-identifying information
related to the provision of abortion services, including even statistical data about publicly
funded abortions in Ontario would endanger anybody. Such concerns are speculative at best.
144. A prima facie right to access information may also be negated where disclosure would
impair the proper functioning of affected public institutions.86 Ontario has provided no
evidence that the proper functioning of any public institutions would be impaired were the
section 65(5.7) exclusion not part of FIPPA.
145. Ontario has been unable to point to any research or reports conducted or prepared by any
government body with respect to concerns that disclosing documents related to abortion
services could pose a security or safety threat. These alleged concerns are not supported by
the evidence and are at best, speculative.
84
85
The Supreme Court in Criminal Lawyers, supra, at paras 39 and 43, Applicants’ Authorities, Tab
1, specifically mentions solicitor-client privilege, the privilege relating to confidences of the Queen’s Privy
Council, and law enforcement privilege.
86
37
Issue 2: If there is a breach of section 2(b) of the Charter, can the government justify this
breach under section 1 of the Charter?
146. The onus is on Ontario to demonstrably justify the limit on freedom of expression. To do
so, Ontario must establish that the limit is prescribed by law. It must also, in accordance with
the Supreme Court of Canada’s test set out in the Oakes test, establish that the law advances a
“pressing and substantial objective” in a manner that is rational, minimally impairing, and
proportionate.87 Ontario cannot rely on section 1 if it fails to establish any of the foregoing.
The Applicants submit that Ontario cannot satisfy any section 1 requirements in this case.
147. In Criminal Lawyers, the delicate balance between the right of access and the legitimate
interests protected by exemptions limiting access was at issue.
1 Access to information in the hands of public institutions can

increase transparency in government, contribute to an informed
public, and enhance an open and democratic society. Some
information in the hands of those institutions is, however, entitled to
protection in order to prevent the impairment of those very principles
and promote good governance.
2 Both openness and confidentiality are protected by Ontario's

freedom of information legislation, the Freedom of Information and
Protection of Privacy Act [citations omitted]. The relationship
between them under this scheme is at the heart of this appeal. At issue
is the balance struck by the Ontario legislature in exempting certain
categories of documents from disclosure.88
148. Where the legislature attempts to strike a balance, it is entitled to greater deference from
the courts. Where, however, the legislature takes a more absolute position, it is less entitled to
deference.89
149. Formerly, FIPPA balanced the right of access to government information related to the
provision of abortion services with protections for privacy, safety, security, and so on. Since
87
Oakes, supra 7, at paras 69-70, Applicants’ Authorities, Tab 4.
88
Criminal Lawyers, supra 4, at paras 1-2, Applicants’ Authorities, Tab 1.
89
Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, at paras 97-98, Applicants’
Authorities, Tab 20.
38
the section 65(5.7) exclusion came into force in 2012, however, government information
related to abortion has been wholly inaccessible under FIPPA. The government is therefore
entitled to little deference here.
150. The infringement of section 2(b) of the Charter caused by the section 65(5.7) exclusion
cannot be justified under section 1 of the Charter because:
a. it is not a limit “prescribed by law”;
b. it has no pressing and substantial objective;
c. there is no rational connection between the exclusion and a pressing and
substantial objective;
d. it is not minimally impairing of freedom of expression; and,
e. its ills outweigh its benefits.
1. There is no limit “prescribed by law”

151. The requirement that a limit on a Charter right or freedom must be “prescribed by law”
means that limits on Charter rights or freedoms must flow from a sufficiently clear legal
standard that can inform legal debate.
152. The limit on freedom of expression in this case is not prescribed by law because it results
from the non-application of FIPPA, resulting in there being no intelligible standard governing
the exercise of discretion to disclose or not disclose abortion-related information nor any legal
basis upon which to judicially review disclosure decisions with respect to such information.
(a) No law granting discretion
153. When we speak in law about “discretion”, we necessarily look for a source. Section
65(5.7) is not a statutory grant of discretion, it is the repeal of statutory discretion conferred
by FIPPA with respect to information related to abortion services. Section 65(5.7) denotes the
non-application of FIPPA.
39
154. Jawhar Kassam appears to believe that the section 65(5.7) exclusion was adopted in order
to grant institutions discretion to disclose or not disclose abortion-related information
depending on various considerations, such as public safety,90 but that is exactly the kind of
discretion FIPPA granted before the section 65(5.7) exclusion came into force.
155. Contrary to Mr. Kassam’s apparent understanding, rather than maintaining FIPPA-
granted and FIPPA-guided discretion (derived from sections 10, 17, 19, 21, and 23 and
whatever other exemptions may apply), the section 65(5.7) exclusion removes it entirely.
156. As the Court of Appeal for Ontario has explained:
By using the words 'this Act does not apply', the legislature has
distinguished exclusions from exemptions, and has declared that the
'delicate balance between the need to provide access to government
records and the right to protection of personal privacy', which engages
the expertise of the Privacy Commissioner, plays no role in relation to the
enumerated [excluded] records.91
157. Exemptions, by contrast, confer discretion. As the Supreme Court of Canada said in
Criminal Lawyers of the exemptions in sections 14 and 19 of FIPPA: “Law enforcement
privilege and solicitor-client privilege already take public interest considerations into account
and, moreover, confer a discretion to disclose the information on the Minister.”92
158. The Supreme Court of Canada also reminds us in Criminal Lawyers that “[a] discretion
conferred by statute must be exercised consistently with the purposes underlying its grant”.93
(b) No intelligible standard governing the exercise of discretion

159. As the Supreme Court of Canada stated in Irwin Toy: “[W]here there is no intelligible
standard and where the legislature has given a plenary discretion to do whatever seems best in
90
Affidavit of Jawhar Kassam, at para 9, RAR, Tab 1.
91
Mitchinson, supra, at para 30, Applicants’ Authorities, Tab 16.
92
93
40
a wide set of circumstances, there is no ‘limit prescribed by law’.”94
160. In order to constitute a limit “prescribed by law”, the law in question must place
discernible limits on the discretion to disclose or not disclose information.
161. The section 65(5.7) exclusion does the opposite. Mr. Kassam suggests in his affidavit that
the section 65(5.7) exclusion was designed to grant institutions with discretion to disclose or
not, but institutions already had such discretion before Bill 122. That discretion was guided
and limited by the purposes, right of access, and exemptions of FIPPA and the section 65(5.7)
exclusion strips institutions of that discretion.
162. What guides the exercise of discretion with respect to “information related to the
provision of abortion services”? We do not and cannot know. All we know is that FIPPA no
longer provides limits or guidance for such “discretion”, since it does not apply.
163. Ontario may claim that where FIPPA does not apply, the government has discretion. Mr.
Kassam asserts this in his affidavit. But Ontario cannot point to any law governing the
exercise of that so-called discretion. Mr. Kassam says that “various considerations” might be
relevant to a decision to disclose or not disclose information “outside of FIPPA”. But the
Applicants and the public have no way of knowing what the relevant considerations are.
164. The “prescribed by law” requirement of section 1, like the “rule of law” principle in the
Charter’s preamble, requires intelligibility and accessibility.95 If the person seeking access to
information necessary for meaningful expression on an issue of public importance cannot
know in advance what factors will govern the government’s decision to disclose or not
disclose information, there can be no limit prescribed by law.96
94
Irwin Toy v Quebec, supra, at 983, Applicants’ Authorities, Tab 19.
95
Irwin Toy v Quebec, supra, at 983, Applicants’ Authorities, Tab 19.
96
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, at 632-643 [Pharmaceutical Society]
41
165. As the Supreme Court of Canada stated in R. v Nova Scotia Pharmaceutical Society:
What becomes more problematic is not so much general terms

conferring broad discretion, but terms failing to give direction as to
how to exercise this discretion, so that this exercise may be controlled.
Once more, an unpermissibly vague law will not provide a sufficient
basis for legal debate; it will not give a sufficient indication as to how
decisions must be reached, such as factors to be considered or
determinative elements. In giving unfettered discretion, it will deprive
the judiciary of means of controlling the exercise of this discretion.97
(c) No legal basis for judicial review of decisions to disclose or not disclose
166. With the section 65(5.7) exclusion in force, courts have no basis upon which to review
whether a refusal to disclose a record is correct or incorrect, reasonable or unreasonable.
Courts determine whether administrative discretion is appropriately exercised based on the
statute granting the discretion.
167. Judicial review is a critical component in guaranteeing access to information, as
Professor Kazmierski observes in a case comment on the Criminal Lawyers ruling:
While further renewal of legislative access frameworks is necessary,

and the recognition of constitutional protection of access rights is
commendable, the focus on legislative reform and constitutional
protection ignores perhaps the most important factor in protecting our
rights to access government information: ongoing and effective
supervision of administrative discretion exercised under existing
legislative regimes.98
168. Daniel Guttman also recognizes the important role of judicial review of FIPPA-granted
discretion in protecting the derivative Charter right to access to information:
In my view, the Court's focus on the proper exercise of discretion is a

signal to government that discretionary decisions refusing to disclose
information will be carefully reviewed by information commissioners
and courts on administrative law grounds. Paramount in the exercise
of the discretion is whether the public interest outweighs the purpose
of an exemption, and a government that fails to provide adequate
reasons for non-disclosure can expect to be asked to justify the
97
Pharmaceutical Society, supra, at 642, Applicants’ Authorities, Tab 21.
98
Kazmierski, supra, at para 1, Applicants’ Authorities, Tab 26.
42
exercise of discretion upon judicial review. The Court's direction on

this issue is entirely consistent with Ontario's main purpose in
enacting FIPPA: that government information should be available to
the public except where a countervailing interest justifies a decision to
resist disclosure for the greater public good.99
169. The section 65(5.7) exclusion, however, erases the right of access to government
information even if no countervailing interests justify non-disclosure. No countervailing
interest need be demonstrated, provided the requested record relates to abortion services.
170. Justice McLachlin (as she then was) writes:
The power which the state confers on government appointees must not be
exercised by the arbitrary whim of the state agent. It must be exercised
reasonably, in good faith and on proper grounds. It must not be exercised
for an improper purpose nor on the basis of irrelevant considerations.
These rules constitute, in effect, a practical expression of the rule of law,
one that is supervised by the courts.100
171. The section 65(5.7) exclusion, where it applies, permits arbitrary decision making with
respect to what to do with records containing information related to abortion, as Ms.
Maloney’s previous case illustrates. This undermines the rule of law.
172. Where there is no basis for judicial review of “discretionary” decisions to disclose or not
disclose information, there can be no limit “prescribed by law” as required by section 1 of the
Charter. The kind of discretion Jawhar Kassam speaks of in his affidavit is plenary discretion,
which is repugnant to the rule of law.
2. No pressing and substantial objective
173. In Order PO-3222, the IPC said this of section 65(5.7): “The evident intent of the
Legislature in enacting this provision is to exclude records relating to the provision of
99
100
Justice McLachlin, “Rules and Discretion in the Governance of Canada” (1992), 56 Sask. L. Rev. 167,
43
abortion services from the Act.”101
174. Beyond that, it is not clear what the objective of the section 65(5.7) exclusion is. Since
the section was added along with others relating to hospitals, it might be suggested that the
objective was to protect hospitals from hospital-specific FOI requests for abortion-related
information in order to ensure their proper functioning and to keep their facilities and staff
safe, but that interpretation was rejected by the IPC in Order PO-3222.102 Moreover, such
protections were already available under FIPPA exemptions (ss. 14, 17, and 20) anyway.
175. It is Ontario’s position that the charts Ms. Maloney had requested in 2012 which contain
statistical abortion information, did “not pose a threat to health and safety”.103
176. Ontario could produce no research or report regarding any risk that the section 65(5.7)
exclusion was addressing. Nor does it have any documentation from the Ontario Hospitals
Association to support the concern that disclosure of “information related to the provision of
abortion services” could pose risks to the safety or security of patients, hospitals, or their staff.104
177. Any such concerns are not based on evidence and are at best, speculative.
178. There was no discussion of the section 65(5.7) exclusion during debate of Bill 122 in the
Legislative Assembly.105
179. In short, even if the objective of the section 65(5.7) exclusion is to protect the safety and
security of facilities or persons, such an objective is based on speculative concerns and is not
pressing and substantial.
3. No rational connection between complete exclusion and statutory objective

180. If the objective of the section 65(5.7) exclusion were safety and security, section 65(5.7)
101
Order PO-3222, supra, at para 31, Applicants’ Authorities, Tab 2.
102
103
104
105
Affidavit of Colin Postma, AAR, Volume 2, Tab 5.
44
would add nothing that FIPPA exemptions did not already provide. Information “related to
the provision of abortion services” could be and in fact was withheld in several cases pursuant
to FIPPA exemptions designed for that purpose.106 Reliance on such exemptions requires
evidence and could be subject to independent review by the IPC.107
181. The notion that permitting access to any “information related to the provision of abortion
services”, including even to general statistics and other non-identifying data could cause
violent reactions from pro-life people is baseless. There is no evidence that the section 65(5.7)
exclusion contributes in any way to public safety and security.
4. A complete exclusion is not minimally impairing
182. Making any and all information related to the provision of abortion services inaccessible
under FIPPA is an unnecessary and overly broad means of protecting individual abortion
providers, facilities, and patients from harassment or other harm, if that even is the objective.
183. When relying on FIPPA exemptions (mandatory or discretionary) to withhold
information from a requester, “The head must consider individual parts of the record, and
disclose as much of the information as possible.”108
184. As section 10(2) of FIPPA states:
(2) If an institution receives a request for access to a record that

contains information that falls within one of the exemptions under
sections 12 to 22 and the head of the institution is not of the opinion
that the request is frivolous or vexatious, the head shall disclose as
much of the record as can reasonably be severed without disclosing
the information that falls under one of the exemptions.109
185. The same is not true with respect to exclusions. Where an exclusion applies, FIPPA does
not apply and there is simply no right of access. The head need not disclose a record in whole
106
107
Ontario v. IPC, supra, Applicants’ Authorities, Tab 12.
108
109
FIPPA, supra, at s. 10(2).
45
or in part or offer any explanation beyond citing the exclusion, if it applies. The section
65(5.7) exclusion applies if the requested information has “some connection” to the provision
of abortion services.110
186. In Criminal Lawyers, unlike in the present case, FIPPA actually provided a right of
access to the information the applicants sought. However, the government in that case relied
on several discretionary exemptions in FIPPA to deny access.111
187. One issue in Criminal Lawyers was whether that discretion was exercised reasonably in
light of the purposes of the Act and the specific exemptions relied on. The Supreme Court of
Canada sent the matter back to the IPC for reconsideration, since it seemed to the Court that
denying access to the entire 318-page record requested may not have been justified had
section 14 of FIPPA been properly interpreted and applied by the IPC in the first place.112
188. Another issue in Criminal Lawyers, the Charter issue, was whether or not FIPPA’s
general public interest override in section 23 violated the Charter for being too narrow.
Section 23 could overcome exemptions, including mandatory exemptions, to favour
disclosure where it was in the public interest to disclose, but it did not apply to the exemptions
in sections 14 (law enforcement) and 19 (privilege). The Criminal Lawyers Association
wanted to read ss. 14 and 19 into s. 23.
189. The Supreme Court of Canada contemplated that an access provision (section 23) could
possibly be not broad enough. The Court did not disqualify the claim on the basis that it
cannot broaden the public interest override. The Applicants in the present case ask this Court
to restore the right of access to abortion-related information.
190. The Supreme Court of Canada concluded in Criminal Lawyers that section 23 of FIPPA
110
Order PO-3222, supra, at para 31, Applicants’ Authorities, Tab 2.
111
112
46
did not violate section 2(b) of the Charter because FIPPA may allow access to the records
sought in that case even without section 23:
Law enforcement privilege and solicitor-client privilege already take

public interest considerations into account and, moreover, confer a
discretion to disclose the information on the Minister.113
191. The Supreme Court of Canada concluded in Criminal Lawyers that “the public interest
override contained in section 23 would add little to what is already provided for in sections 14
and 19 of the Act.”114 That is, sections 14 and 19 already favour disclosure when disclosure is
in the public interest, but create a presumption that disclosure is detrimental to the public
interest in certain circumstances. 115
192. The Criminal Lawyers judgment continues:
However, by stipulating that ‘[a] head may refuse to disclose’ a record in this
category, the legislature has also left room for the head to order disclosure of
particular records116 [...] This creates a discretion in the head.117
It is the word “may” in the exemptions that “confers a discretion”.118
193. The Supreme Court of Canada in Criminal Lawyers found that applying section 23 to the
discretionary exemptions in sections 14 and 19 was not necessary to safeguard the right of
access or to ensure that right was appropriately balanced with other considerations.119 In short,
section 23 did not impair the applicant’s ability to obtain documents in that case.120
194. The same cannot be said of the section 65(5.7) exclusion. Unlike the provision of FIPPA
challenged in Criminal Lawyers (section 23), the section 65(5.7) exclusion does not preserve
a legal right of access.
113
114
115
116
117
118
119
120
47
5. The deleterious effects of the section 65(5.7) exclusion outweigh the benefits
195. The final stage of Oakes requires the state to demonstrate that the benefits of the
provision that infringes a Charter right outweigh its negative consequences.121
196. The deleterious effects of the section 65(5.7) exclusion are easy to grasp. Ms. Maloney
made a simple request for easily identifiable records containing general, non-identifying
statistical information about the Ontario government’s provision of abortion services. Ms.
Maloney wished to use the requested records to educate Ontarians about the government’s
funding of abortion and to engage in meaningful commentary on the issue.
197. Ms. Maloney was denied access with no explanation beyond a citation of section 65(5.7).
She appealed the denial of access to the IPC, but the IPC could not help her, since the
requested records clearly had “some connection” with abortion and were therefore excluded
from the right of access under FIPPA. It was only after two and half years from the time of
the initial request, a great deal of effort and after incurring significant legal fees trying to
obtain the records, and in the face of her factum on her Application for Judicial Review, that
the MOH finally disclosed the records. Again, little explanation was given.
198. For those two and half years Ms. Maloney could not educate her readers about, nor
meaningfully comment on how the government of Ontario was spending money on abortions.
The records eventually disclosed to Ms. Maloney contain information that is highly relevant
to an important public policy issue and which is not publicly available.
199. This is not to say that Ms. Maloney was not able to comment on abortion at all – she was
and did – but she was not able to meaningfully comment on several aspects of the abortion
issue in Ontario, such as, the cost to taxpayers of publicly-funded abortion.
200. Ms. Maloney’s ordeal sends a strong message to her and to everyone that requests for
121
Oakes, supra, Applicants’ Authorities, Tab 4.
48
government information related to the provision of abortion services will not be granted and
that if someone is prepared to take the matter before the courts, the government will simply
disclose the requested information “outside of the FIPPA” days before any hearing or trial so
as to avoid the risk of having the section 65(5.7) exclusion reviewed by the courts.
201. What of the benefits of the section 65(5.7) exclusion? It is not hyperbole to say it adds no
benefits that FIPPA did not already provide before the section 65(5.7) exclusion was added.
Ontario’s own position is that the records requested by Ms. Maloney in 2012 posed no risk.
Nevertheless, Ontario opposed her FOI request for more than two years, causing her to incur
approximately $30,000 in legal fees.
202. Even today, Ontario maintains that Ms. Maloney ought not have access to the
information that Ontario disclosed to her “outside of FIPPA” when it was faced with having
to respond to her Application for Judicial Review.
203. While such records contain important data on a public policy issue, they identify no
doctors, hospitals, or clinics. The section 65(5.7) exclusion is not needed to protect hospitals
or clinics, which were and are adequately protected by FIPPA exclusions in sections 14, 17,
and 20 anyway, as the pre-Bill 122 IPC cases illustrate.
204. The section 65(5.7) exclusion is not needed to protect personal health information, which
was and is protected by PHIPA anyway.
Issue 3: What is the appropriate remedy?

1. Striking down
205. The Applicants submit that the section 65(5.7) exclusion infringes section 2(b) of the
Charter, is not saved by section 1, and should be declared of no force or effect in accordance
with section 52 of the Charter. The result of such a declaration is that the FIPPA framework,
which worked perfectly well in the past to govern access to information related to abortion
49
services, will once again apply to such information.
206. Striking down the section 65(5.7) exclusion would remove the infringement of the
derivative Charter right to access information and restore the rule of law in this context. The
plenary discretion which Mr. Kassam suggests section 65(5.7) grants would be removed.
207. No harm would result from such a declaration taking effect immediately.
208. As before, FOI requests for “information related to the provision of abortion services”
would be dealt with in accordance with FIPPA. Any safety concerns can be adequately
addressed within FIPPA framework.
Issue 4: Costs
209. The Applicants claim that they ought to be entitled to costs regardless of the outcome of
this Application.
210. The Applicants here are an individual and a not-for-profit organization, both with limited
resources. Neither of the Applicants have financial interest or potential financial gain from
succeeding in this Application.
211. Although the Applicants seek to strike the section 65(5.7) exclusion of FIPPA because it
violates their 2(b) Charter rights, their efforts through this litigation have been made in the
public interest. The issues raised in this Application have never been considered by the courts
in Ontario or in Canada.
212. The Respondent however, is the Crown with taxpayer funding. The Respondent’s
resources are virtually unlimited and significantly and severely outweigh the Applicants’
resources.
213. That being the case, the Applicants submit that they should be entitled to their costs on a
substantial indemnity basis regardless of the outcome or alternatively, that each party should
bear their own costs.

50
Public-Interest Litigation
214. This litigation is of a public interest. The legal issues raised in this application have never
been considered by the courts in Ontario and will benefit the development of the law in
Ontario and Canada.
215. The Applicants rely on case law relating to costs in public-interest litigation to support
their claim for costs, or alternatively, that each party should bear their own costs.
216. The seminal case on costs in public-interest litigation is British Columbia (Minister of
Forests) v. Okanagan Indian Band.122 In Okanagan, the Supreme Court of Canada pointed to
the importance of cost awards in favour of applicants involved in public-interest litigation. It
stated:
[…] it is desirable that Charter litigation not be beyond the reach of the
citizen of ordinary means” and that “costs can be used as an instrument
of policy and making Charter litigation accessible to ordinary citizens is
recognized as a legitimate and importance policy objective.123
217. In cases of social significance, costs awards against the successful party may be
appropriate. Indeed, Rule 57.01(2) of the Rules of Civil Procedure allows such awards.124
218. As stated by the Supreme Court of Canada, the common purposes of costs awards are
often superseded by other policy objectives which include ensuring that ordinary citizens will
have access to the Court to determine their constitutional rights and other issues of broad
social significance as well as cases which deal with issues of public importance.125
219. It is submitted that this is one of the “special” cases alluded to in Okanagan and that the
issues raised in this litigation are of a public importance. They will affect the relationship
122
British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 SCR 371, [“Okanagan”]
123
Okanagan, supra, at para. 28, Applicants’ Authorities, Tab 22.
124
Okanagan, supra, at paras. 29 and 30, Applicants’ Authorities, Tab 22; Rules of Civil Procedure, R.R.O.
1990, Regulation 194, at Rule 57.01(2).
125
Okanagan, supra, Applicants’ Authorities, Tab 22, at para. 38.
51
between government and those seeking access to government information and the Charter
freedom of expression, including freedom of the press and other media of communication. As
such, costs should be awarded to the Applicants regardless of the outcome of the Application.
220. As cited in Harris v. Canada (TD)126 the criteria to consider when deciding if costs
should not be awarded against applicants in public-interest litigation are whether:
a. The proceeding involves issues the importance of which extends beyond the
immediate interest of the parties involved.
b. The person has no personal, proprietary or pecuniary interest in the outcome of the
proceeding, or, if he or she has an interest, it clearly does not justify the proceedings
economically.
c. The issues have not been previously determined by a court in a proceeding against
the same defendant.
d. The defendant has a clearly superior capacity to bear the costs of the proceeding.
e. The plaintiff has not engaged in vexatious, frivolous or abusive conduct.127
221. The criteria above were again reaffirmed by the Supreme Court in Carter.128 When
applying these criteria, the Applicants and this application clearly satisfy all five components.
a. The proceeding involves issues the importance of which extends beyond the
Applicants’ immediate interests;
b. The Applicants have no personal, proprietary or pecuniary interest in the outcome of
the proceeding;
i. If the Applicants are deemed to have such an interest, it certainly does not justify
these proceedings economically;
c. The issues in this application have never been determined or considered by the
Ontario courts;
d. The Respondent clearly has superior capacity to bear the costs of this Application;
and,
126
Harris v. Canada (TD, [2002] 2 F.C. 484, [Harris], Applicants’ Authorities, Tab 23.
127
Harris, supra, at para. 222, Applicants’ Authorities, Tab 23.
128
Carter, supra, at paras. 134 and 140, Applicants’ Authorities, Tab 20.
52
e. The Applicants have not engaged in frivolous, vexatious or abusive conduct.
222. The Applicants submit that in the alternative, regardless of the disposition of the
application, no costs should be ordered against them because the issues raised were novel,
involve a matter of public interest and were brought in good faith for the genuine purpose of
having a point of law of general public interest resolved.129
PART IV: ORDER REQUESTED
223. The Applicants ask that this Honourable Court:
a. declare that section 65(5.7) of FIPPA infringes section 2(b) of the Charter, is not
saved by section 1, and is of no force or effect in accordance with section 52 of
the Charter;
b. that the declaration take immediate effect; and,
c. that it be awarded costs on a substantial indemnity basis.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 28th DAY OF OCTOBER, 2016.
________________________________________
VINCENT DAGENAIS GIBSON LLP/s.r.l.
260 Dalhousie Street, Suite 400
Ottawa, Ontario K1N 7E4
ALBERTOS POLIZOGOPOULOS
JOHN SIKKEMA
Tel : 613-241-2701
Fax : 613-241-2599
Solicitor for the Applicants
129
Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690, at para. 7, Applicants’ Authorities, Tab 24.
53
Schedule “A”
Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23
Ministry of Health and Long Term Care (Re), Order PO-3222, Appeal PO12-243, 2013 CanLII
38913
Ottawa Hospital (Re), Order PO-3442, Appeal PA13-213, 2014 CanLII 79900
R. v. Oakes, [1986] 1 SCR 103
Ontario (Health) (Re), Order 202, Appeal 890310, 1990 CanLII 3881
Ontario (Health) (Re), Order PO-1695, Appeal PA-980277-1, 1999 CanLII 14374
Ontario (Health) (Re), Order PO-1747, Appeal PA-980336-1, 2000 CanLII 20933
Ontario (Health and Long-Term Care) (Re), Order PO-1880, Appeal PA-000196-1, 2001 CanLII
26053
Ontario (Health and Long-Term Care) (Re), Order PO-2378, Appeal PA-040173-1, 2005 CanLII
56495
Ontario (Health) (Re), Order P-1499, Appeal P_9700188, 1997 CanLII 11658, [Order P-1499]
Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403
Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy
Commissioner), 2014 SCC 31
CBC v. Lessard, [1991] 3 SCR 421
CBC v. New Brunswick, [1996] 3 SCR 480
Toronto Star v. Ontario, [2005] 2 SCR 188
Ontario (Solicitor General) v. Mitchinson (2001), 55 O.R. (3d) 355 (C.A.)
Grant v. Torstar Corp., 2009 SCC 61
Switzman v. Elbling, [1957] SCR 285
Irwin Toy Ltd. v. Quebec (AG), [1989] 1 S.C.R. 927
Carter v. Canada (Attorney General), 2015 SCC 5

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606
54
British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 SCR 371
Harris v. Canada (TD, [2002] 2 F.C. 484
Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690

55
Schedule “B”
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
Fundamental freedoms
2. Everyone has the following fundamental freedoms:

[...]
(b) freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect.
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
(3) Amendments to the Constitution of Canada shall be made only in accordance with the
authority contained in the Constitution of Canada.
Freedom of Information and Privacy Protection Act, R.S.O. 1990, CHAPTER F.31
Purposes
1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in
accordance with the principles that,
56
(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific,
and
(iii) decisions on the disclosure of government information should be reviewed
independently of government; and
(b) to protect the privacy of individuals with respect to personal information about
themselves held by institutions and to provide individuals with a right of access to that
information. R.S.O. 1990, c. F.31, s. 1.
Right of access
10. (1) Subject to subsection 69 (2), every person has a right of access to a record or a part of a
record in the custody or under the control of an institution unless,
(a) the record or the part of the record falls within one of the exemptions under sections 12
to 22; or
(b) the head is of the opinion on reasonable grounds that the request for access is frivolous
or vexatious.
Cabinet records
12. (1) A head shall refuse to disclose a record where the disclosure would reveal the substance
of deliberations of the Executive Council or its committees, including,
[…]
13. (1) A head may refuse to disclose a record where the disclosure would reveal advice or
recommendations of a public servant, any other person employed in the service of an institution
or a consultant retained by an institution.
14. (1) A head may refuse to disclose a record where the disclosure could reasonably be
expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or
from which a law enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in use or likely to be used in law
enforcement;
(d) disclose the identity of a confidential source of information in respect of a law enforcement
57
matter, or disclose information furnished only by the confidential source;
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(f) deprive a person of the right to a fair trial or impartial adjudication;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting
organizations or persons;
(h) reveal a record which has been confiscated from a person by a peace officer in accordance
with an Act or regulation;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system
or procedure established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime.
14.1 A head may refuse to disclose a record and may refuse to confirm or deny the existence of
a record if disclosure of the record could reasonably be expected to interfere with the ability of
the Attorney General to determine whether a proceeding should be commenced under the Civil
Remedies Act, 2001, conduct a proceeding under that Act or enforce an order made under that
Act.
15. A head may refuse to disclose a record where the disclosure could reasonably be expected
to,
(a) prejudice the conduct of intergovernmental relations by the Government of Ontario or an

institution;
(b) reveal information received in confidence from another government or its agencies by an
institution; or
(c) reveal information received in confidence from an international organization of states or a

body thereof by an institution,
and shall not disclose any such record without the prior approval of the Executive Council.
16. A head may refuse to disclose a record where the disclosure could reasonably be expected to
prejudice the defence of Canada or of any foreign state allied or associated with Canada or be
injurious to the detection, prevention or suppression of espionage, sabotage or terrorism and
shall not disclose any such record without the prior approval of the Executive Council.
58
17. (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical,
commercial, financial or labour relations information, supplied in confidence implicitly or
explicitly, where the disclosure could reasonably be expected to, […]
18. (1) A head may refuse to disclose a record that contains,
(a) trade secrets or financial, commercial, scientific or technical information that belongs to the
Government of Ontario or an institution and has monetary value or potential monetary value;
(b) information obtained through research by an employee of an institution where the disclosure
could reasonably be expected to deprive the employee of priority of publication;
(c) information where the disclosure could reasonably be expected to prejudice the economic
interests of an institution or the competitive position of an institution;
(d) information where the disclosure could reasonably be expected to be injurious to the
financial interests of the Government of Ontario or the ability of the Government of Ontario to
manage the economy of Ontario;
(e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried
on or to be carried on by or on behalf of an institution or the Government of Ontario;
(f) plans relating to the management of personnel or the administration of an institution that
have not yet been put into operation or made public;
(g) information including the proposed plans, policies or projects of an institution where the
disclosure could reasonably be expected to result in premature disclosure of a pending policy
decision or undue financial benefit or loss to a person;
(h) information relating to specific tests or testing procedures or techniques that are to be used
for an educational purpose, if disclosure could reasonably be expected to prejudice the use or
results of the tests or testing procedures or techniques;
(i) submissions in respect of a matter under the Municipal Boundary Negotiations Act
commenced before its repeal by the Municipal Act, 2001, by a party municipality or other body
before the matter is resolved;
(j) information provided in confidence to, or records prepared with the expectation of
confidentiality by, a hospital committee to assess or evaluate the quality of health care and
directly related programs and services provided by a hospital, if the assessment or evaluation is
for the purpose of improving that care and the programs and services.
19. A head may refuse to disclose a record,
(a) that is subject to solicitor-client privilege;

59
(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation
of or for use in litigation; or
(c) that was prepared by or for counsel employed or retained by an educational institution or a
hospital for use in giving legal advice or in contemplation of or for use in litigation.
20. A head may refuse to disclose a record where the disclosure could reasonably be expected to
seriously threaten the safety or health of an individual.
21. (1) A head shall refuse to disclose personal information to any person other than the
individual to whom the information relates except,
(a) upon the prior written request or consent of the individual, if the record is one to which the
individual is entitled to have access;
(b) in compelling circumstances affecting the health or safety of an individual, if upon

disclosure notification thereof is mailed to the last known address of the individual to whom the
information relates;
(c) personal information collected and maintained specifically for the purpose of creating a
record available to the general public;
(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;
(e) for a research purpose if,
(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under
which the personal information was provided, collected or obtained,
(ii) the research purpose for which the disclosure is to be made cannot be reasonably
accomplished unless the information is provided in individually identifiable form, and
(iii) the person who is to receive the record has agreed to comply with the conditions relating to
security and confidentiality prescribed by the regulations; or
(f) if the disclosure does not constitute an unjustified invasion of personal privacy.
21.1 A head may refuse to disclose a record where the disclosure could reasonably be expected
to lead to,
(a) killing, harming, harassing, capturing or taking a living member of a species, contrary to
clause 9 (1) (a) of the Endangered Species Act, 2007;
(b) possessing, transporting, collecting, buying, selling, leasing, trading or offering to buy, sell,
lease or trade a living or dead member of a species, any part of a living or dead member of a
species, or anything derived from a living or dead member of a species, contrary to clause 9 (1)
60
(b) of the Endangered Species Act, 2007; or
(c) damaging or destroying the habitat of a species, contrary to clause 10 (1) (a) or (b) of the
Endangered Species Act, 2007.
23. An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1
does not apply where a compelling public interest in the disclosure of the record clearly
outweighs the purpose of the exemption.
Application of Act
65 (5.7) This Act does not apply to records relating to the provision of abortion services. 2010,
c. 25, s. 24 (17).
Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent
the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194,
r. 57.01 (2).

Factum of ARPA Canada in FIPPA Challenge

Uploaded by

Copyright:

Available Formats

Factum of ARPA Canada in FIPPA Challenge

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Factum of ARPA Canada in FIPPA Challenge

Uploaded by

Copyright:

Available Formats

Court File No.

THE ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

APPLICATION UNDER rules 14.05(2) and 38 of the Rules of Civil Procedure.

FACTUM OF THE APPLICANTS

VINCENT DAGENAIS GIBSON LLP/s.r.l.

PART I: OVERVIEW ...................................................................................................................2

of Rights and Freedoms1 (the “Charter”):

a. declaring that section 65(5.7) of the Freedom of Information and Access to

information was accessible through FIPPA.

expression of both Ms. Maloney and ARPA Canada.

the basis of the refusal.

Criminal Lawyers Association4 (“Criminal Lawyers”), if a denial of access to information

effectively precludes meaningful public discussion on a matter of public interest, a prima

information in the government’s control.

and to participate meaningfully in the democratic process.

result is a violation of section 2(b) of the Charter.

government in the future.

“prescribed by law” requirement in section 1 of the Charter.

issue inaccessible to the public.

to any identifiable facilities or persons.6

PART II: FACTS

Health Insurance Plan.

Care (“MOH”) to obtain information regarding the number of abortions performed in

particular time periods.

20. ARPA Canada is a not-for-profit and non-partisan organization devoted to educating,

community as they seek to participate in the public square.

B. The introduction of the section 65(5.7) exclusion in FIPPA

among other provisions, to FIPPA. The subsection reads:

during any of the debates or Legislative Committee meetings.8

Management in the Information, Privacy and Archives Division of the Ministry of

(“MGS”) contrasts an exclusion with an exemption:

An exclusion removes a record from the jurisdiction of the Act,

certain exemptions, sometimes upholding a denial of disclosure and sometimes ordering

becoming inaccessible under FIPPA.”

services, instead, pointing to non-relevant events and speculative theories. In response to a

adding the section?

32. Clearly, Ontario is grasping at straws with this after-the-fact reasoning.

could be and was withheld anyway, where relevant exemptions applied.13

FIPPA requests for documents related to abortion services.14

MOH had no responsive records.15

such material is excluded outright, with no justification required.

C. Abortion-related FOI requests after Bill 122

1. Ms. Maloney’s post-Bill 122 attempt at obtaining information

“Medical Management of Non-Viable Fetus or Intra-Uterine Fetal Demise between 14 and 20

and “Medical Management of Non-Viable Fetus or Intra-Uterine Fetal Demise between 14

2010” (the “Requested Charts”).

65(5.7) exclusion. No other explanation was provided.

IPC’s decision, which Ontario vigorously opposed.

43. In disclosing the Requested Charts, Ontario stated:

As confirmed by the adjudicator of the Information and Privacy

However, MOHLTC is prepared to disclose the record to your client

PART III: ISSUES, LAW, AND ARGUMENT

framework governing access to information. As the Supreme Court of Canada recognized in

Dagg v. Canada (Minister of Finance):19

The overarching purpose of access to information legislation, then, is

access and independent oversight provided by access to information legislation.

information about the provision of abortions in Ontario, explaining: