The Rules of Civil Procedure versus MFIPPA

by Arthur J. Rozumek and Arjun Raju

The Court recently addressed the contentious issue of whether a litigant, in the course of a civil action, can obtain disclosure of the last known contact information of a municipality's former employees who might reasonably be expected to have knowledge of the occurrences in issue in the action, where access to that information would otherwise be restricted by provincial privacy legislation.

In Xu v. The Corporation of the Town of Oakville et al. ("Xu"), the defendant municipality took the position that the litigant must first make a Freedom of Information request ("FOI request") for the last known contact information of its former employees under the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA"), and if the request was denied, to appeal the denial through the Office of the Information and Privacy Commissioner of Ontario using the appeal procedure set out in MFIPPA.

The Court determined that where the interests and objectives of MFIPPA are not frustrated, the procedure for access to the last known contact information of municipal employees protected by MFIPPA can be avoided where the Rules of Civil Procedure would otherwise require disclosure of the information governed by MFIPPA.

The Court ordered the municipality to produce the last known contact information of the two former municipal employees who might reasonably be expected to have knowledge of the occurrences in issue in the action under Rule 31.06(2) of the Rules of Civil Procedure.

The Facts and Law

The plaintiff sought to obtain the last known addresses of two former municipal employees who would reasonably be expected to have knowledge of the events at issue. She made an FOI Request seeking disclosure of that information, but the FOI Request was denied by the defendant municipality. The denial was not appealed in accordance with the appeal procedure set out in MFIPPA. Instead, the plaintiff brought a motion to compel the municipality to answer the questions refused at the examination for discovery of the municipality's representative in her civil action.

The plaintiff sought to obtain the last known addresses of two former municipal employees...

The Court focused on the following two provisions of MFIPPA in its analysis of whether the request and appeal procedure set out in the municipal privacy legislation supersedes the municipality's disclosure obligations under the Rules of Civil Procedure:

Section 32(e), which permits disclosure of personal information where it is required by law;² and
Section 51, which provides that MFIPPA does not impose limitations on the information otherwise available by law to a party engaged in litigation and that it does not limit the power of a court to compel a witness to testify or to order the production of a document.³

The Court observed that the Rules of Civil Procedure permit a party to obtain disclosure of the names and addresses of individuals who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action during discovery.⁴ The confidentiality of the personal information is protected by the deemed undertaking rule of evidence incorporated into the Rules of Civil Procedure, which states that counsel and the parties to the litigation are deemed to undertake not to use information disclosed in discovery for any purpose other than those of the legal proceeding in which the evidence was obtained.⁵

The Court noted that expediency should not trump an individual's right to privacy. However, it noted that the protection of personal information was at the core of both the deemed undertaking rule in the Rules of Civil Procedure and MFIPPA's disclosure process. In light of the deemed undertaking rule, the Court was satisfied that a litigant's non-compliance with the MFIPPA request and appeal process would not degrade the former municipal employees' right to privacy, as parties to litigation are only to use any information disclosed in the litigation process in the immediate context of that litigation.

In effect, the Court observed that obviating the MFIPPA process for requesting municipal employees' last known contact information would make civil proceedings more efficient while maintaining the vital confidentiality and privacy concerns contemplated by MFIPPA.

Implications

This decision may be interpreted as being favourable to individual and corporate litigants in civil litigation involving municipalities and other institutions that are subject to MFIPPA.⁶ The Court found that where efficient determination of a proceeding on its merits is advanced while simultaneously protecting information that is subject to MFIPPA, it is not necessary for the MFIPPA process for requesting municipal employees' last known contact information to be followed. As such, disclosure of such information during discovery in a civil action under the Rules of Civil Procedure was found to be both reasonable and required of the municipality.

The Court's decision in Xu will allow for more expeditious and just proceedings by avoiding the need for the lengthy and costly process of obtaining information controlled by municipalities through the request and appeal procedure prescribed by MFIPPA. Had the municipality's position been accepted in Xu, individuals and corporations would otherwise have to make a request for the last known contact information of former municipal employees through a Freedom of Information request submitted to the municipality, then potentially to commence an appeal of the municipality's decision, and then to bring the appeal to a hearing before the Information and Privacy Commissioner – all while having to continue to litigate the main civil action and to move it forward to trial.

The Court's decision in Xu also preserves litigants' access to former municipal employees as witnesses in preparing their case for trial. By affirming litigants' rights to the former employees' last known contact information under the Rules of Civil Procedure, litigants can efficiently obtain the information during discovery and then contact the witnesses to prepare their cases for trial, and if necessary, to serve them with summonses to appear at trial.

It remains to be seen whether this decision will be applied to the other privacy legislation in Ontario...

It remains to be seen whether this decision will be applied to the other privacy legislation in Ontario, namely the Personal Health Information Protection Act, 2004 governing personal health information and the Freedom of Information and Protection of Privacy Act, which is the provincial-government counterpart to MFIPPA. These acts, like MFIPPA, also contain similar provisions effectively stating that these acts do not impose any limitation on the information otherwise available by law to a party to litigation.⁷

It stands to reason that the Court's findings and decision in Xu can be applied to similar disputes under the Personal Health Information Protection Act, 2004 and the Freedom of Information and Protection of Privacy Act. If disclosed during discovery, the last known contact information of former employees subject to the Personal Health Information Protection Act, 2004 or the Freedom of Information and Protection of Privacy Act may also be found to be protected by the deemed undertaking rule in the context of a civil action and producible under Rule 31.06(2).

The Court's reasoning in the Xu decision brings much-needed clarity as to litigants' rights to obtain the last known contact information of former employees from government bodies in Ontario under the Rules of Civil Procedure, allowing them to prosecute and defend actions involving those government bodies more efficiently and cost effectively.

Xu v. Town of Oakville, 2024 ONSC 524.
Municipal Freedom of Information and Protection of Privacy Act, s. 32(e) ["MFIPPA"].
MFIPPA, s. 51.
Rules of Civil Procedure, s. 31.06(2).
Rule 30.1.
Per s. 2(1) of MFIPPA, Ontario institutions that are subject to MFIPPA include municipalities, school boards, municipal service boards, city boards, transit commissions, public library boards, boards of health, police services boards, conservation authorities, district social services administration boards, local services boards, planning boards, local roads boards, police village or joint committees of management or joint boards of management established under the Municipal Act, 2001 or the City of Toronto Act, 2006 or a predecessor of those Acts, as well as any agency, board, commission, corporation or other body designated as an institution in the regulations.
Personal Health Information Protection Act, Sch A, s. 9(2)(c); and Freedom of Information and Protection of Privacy Act, s. 64(1).