I recently dealt with an appeal involving the Tribunal and an appellant who sought access to the names of landlords owing money to the Tribunal.  The Tribunal was prepared to disclose the names of corporate landlords, but took the position that the names of non-corporate landlords constituted their “personal information” and qualified for exemption under section 21 of the Act.  I disagreed, and the rationale for my decision is outlined in Order PO-2225:

[T]he first question to ask in a case such as this is: “in what context do the names of the individuals appear”? Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere? In my view, when someone rents premises to a tenant in return for payment of rent, that person is operating in a business arena.  The landlord has made a business arrangement for the purpose of realizing income and/or capital appreciation in real estate that he/she owns.  Income and expenses incurred by a landlord are accounted for under specific provisions of the Income Tax Act and, in my view, the time, effort and resources invested by an individual in this context fall outside the personal sphere and within the scope of profit-motivated business activity.

I recognize that in some cases a landlord’s business is no more sophisticated than, for example, an individual homeowner renting out a basement apartment, and I accept that there are differences between the individual homeowner and a large corporation that owns a number of apartment buildings.  However, fundamentally, both the large corporation and the individual homeowner can be said to be operating in the same “business arena”, albeit on a different scale.  In this regard, I concur with the appellant’s interpretation of Order PO-1562 that the distinction between a personal and a business capacity does not depend on the size of a particular undertaking.  It is also significant to note that the [Tenant Protection Act] requires all landlords, large and small, to follow essentially the same set of rules.  In my view, it is reasonable to characterize even small-scale, individual landlords as people who have made a conscious decision to enter into a business realm.  As such, it necessarily follows that a landlord renting premises to a tenant is operating in a context that is inherently of a business nature and not personal. 

The analysis does not end here.  I must go on to ask: “is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual”?  Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?  

As far as the information at issue in this appeal is concerned, disclosing it would reveal that the individual:

1.                  is a landlord;

2.                  has been required by the Tribunal to pay money to the Tribunal in respect of a fine, fee or costs;

3.                  has not paid the full amount owing to the Tribunal;

4.                  may be precluded from proceeding with an application under the TPA.

In my view, there is nothing present here that would allow the information to “cross over” into the “personal information” realm.  The fact that an individual is a landlord speaks to a business not a personal arrangement.  As far as the second point is concerned, the information at issue does not reveal precisely why the individual owes money to the Tribunal, and the mere fact that the individual may be personally liable for the debt is not, in my view, personal, since the debt arises in a business, non-personal context.  The fact that monies owed have not been fully paid is also, in my view, not sufficient to bring what is essentially a business debt into the personal realm, nor is the fact that a landlord may be prohibited by statute from commencing an application under the TPA. 

The reasoning in Order PO-2225 is equally applicable to the names of the landlords appearing on the eviction forms in this appeal.  I find that this is information “about” the landlords in a business rather than a personal capacity, and does not qualify as “personal information” as that term is defined in section 2(1) of the Act.

Accordingly, the names of the landlords should be provided to the appellant.

Disposition data

The Tribunal describes the disposition data contained in Record 2 as follows:

The disposition data previously given to the appellant … (before the MOU for providing the data was cancelled) included the date the order was issued, the resolution method (for example, default order, hearing order, review order, mediated, etc.). It also included information about findings made in the order that were recorded on Caseload [the Tribunal case management system] (such as the amount of arrears of rent ordered). There are a number of fields in the Caseload file that members can use to record the findings they set out in their order. These findings could be information such as whether the member granted termination of the tenancy, and if so, the eviction date, whether other amounts were ordered, etc. However this type of information was included in the post disposition report provided to the appellant if the member had added it to Caseload.  If the member did not do so, these fields, would have been blank on the report in the line for the application file in question.

With names of tenants and specific address unit numbers removed, in my view, there is nothing inherently personal about the disposition data that would bring it within the scope of the definition of “personal information” in section 2(1) of the Act.  Accordingly, the disposition data should be provided to the appellant.

Other information

The other requested information consists of the application filing date and the type of application.

Clearly, none of this information itself qualifies as “personal information” and, in light of the Tribunal’s policy regarding access to application file documentation, I am satisfied that there is no reasonable expectation that an individual can be identified from the disclosure of the application filing date and the type of application.

Conclusion

I find that the only information requested by the appellant that falls within the scope of the definition of “personal information” in section 2(1) is the unit number component of the address listed on the eviction forms.  Because only “personal information” can qualify for exemption under section 21(1) of the Act, the case/file number, street address, city, postal code, landlord’s name, application filing date, type of application and disposition data contained in the requested records does not qualify for exemption and should be disclosed to the appellant.

PERSONAL PRIVACY

General Principals

The only category of information I will consider under the personal privacy exemption is the unit number component of the address information contained on the eviction application forms.

Section 21 of the Act prohibits the Tribunal from releasing “personal information” unless one of the exceptions in paragraphs (a) through (f) of section 21(1) applies.  The appellant submits that section 21(1)(f) applies in this case.  That section reads:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, if the disclosure does not constitute an unjustified invasion of personal privacy.

Sections 21(2) and (3) of the Act provide guidance in determining whether disclosing personal information would result in an unjustified invasion of privacy under section 21(1)(f).  Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy; section 21(4) lists exceptions to these presumptions; and section 21(2) provides some criteria for an institution to consider in deciding if an unjustified invasion would occur.  The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767).

Sections 21(3) and 21(4) clearly have no application in the circumstances of this appeal.

Section 21(1)(f) and the factors listed under section 21(2)

The appellant identifies all of the factors listed in section 21(2) as relevant considerations in this appeal.  They read as follows:

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a)        the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;

(b)        access to the personal information may promote public health and safety;

(c)        access to the personal information will promote informed choice in the purchase of goods and services;

(d)       the personal information is relevant to a fair determination of rights affecting the person who made the request;

(e)        the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f)                the personal information is highly sensitive;

(g)               the personal information is unlikely to be accurate or reliable;

(h)        the personal information has been supplied by the individual to whom the information relates in confidence; and

(i)         the disclosure may unfairly damage the reputation of any person referred to in the record.

The factors in paragraphs (a), (b), (c), and (d) generally weigh in favour of disclosure, while those in paragraphs (e), (f), (g), (h), and (i) weigh in favour of privacy protection.

Factors weighing in favor of disclosure

Section 21(2)(a):  public scrutiny

The appellant takes the position that disclosing the requested information is desirable for the purpose of subjecting the activities of the government of Ontario and its agencies to public scrutiny.  The appellant submits, in part:

The [Statutory Powers Procedure Act which] ensures the openness of court proceedings applies equally to administrative tribunals. This openness is vital to ensure that tribunals, which are responsible for adjudicating a large number of disputes in a wide range of areas, do not produce secret law.

Applications for eviction, once filed with [the Tribunal], become part of the public record.  The public may attend hearings, listen to the evidence presented, which includes the names and addresses of the individuals residing in the unit for which the application has been brought and have access to the decisions made.  The reasons for ensuring that the proceeding, which includes the applications and all the information contained within them, are public, is to ensure that [the Tribunal] exercises its powers and functions in a manner that is open, transparent and accessible to the public.

It has long been recognized that in democratic societies, bodies exercising a judicial function must be open to public scrutiny to ensure that justice is not only done, but can clearly be seen to be done.  One way of doing this is to ensure that the public has access to the information contained in [the Tribunal’s] files. This openness and transparency is the only real means of assessing the conduct and policies of [the Tribunal] and permitting public scrutiny of its law making.

I agree with the appellant that one reason proceedings before administrative tribunals are generally open is to ensure that the public has an ability to witness the operation of the tribunal and to prevent what the appellant characterizes as “secret law”.  In my view, including most administrative tribunals (including the Tribunal) under the scope of the SPPA is strong evidence of a public expectation that these bodies would operate in a transparent fashion.  However, it does not necessarily follow that the unit numbers of apartment buildings that are involved in eviction proceedings, which is the only information under consideration here, must be made available to an individual who is not a party to those proceedings in order to meet this expectation.

The Tribunal is an “institution” covered by the Act and is bound by its provisions, including the mandatory section 21 privacy exemption.  When a request has been made under the Act for access to Tribunal records, even records that relate directly to files that proceed to a public hearing, the request must be tested under the access provisions in the Act when considered outside the context of the Tribunal’s proceedings.  In the case of information that qualifies as “personal information” under the Act, there is a strong assumption against disclosure, although the balancing process under section 21(2) recognizes that, in certain circumstances, factors favouring disclosure will be sufficient to outweigh those favouring privacy protection.  While the SPPA addresses public scrutiny considerations in the context of hearings, in my view, it does not necessarily follow that personal information must be accessible outside the context of these proceedings in order to ensure that that the Tribunal is operating in an open and transparent manner. 

The accessibility of “personal information” is governed by the Act. I do not accept the appellant’s position that providing access to the unit numbers in apartments subject to eviction applications is either necessary in order to meet public scrutiny concerns or effective in subjecting the Tribunal’s activities to public scrutiny, as required by section 21(2)(a).

Accordingly, I find that section 21(2)(a) is not a relevant factor as it relates to the disclosure of apartment unit numbers contained in the records.

Section 21(2)(b):  public health and safety

The appellant argues that disclosing the requested information may promote public health and safety:

There is a direct correlation between access to the information sought by [the appellant] and the promotion of public health and safety.

The appellant submits that “keeping tenants housed promotes public health and safety as, the alternative of homelessness creates a very real personal risk to health and safety.”  The appellant submits that those risks include:

•         Children who are homeless face a greater risk of being apprehended by the CAS then children who are housed.

•         Children who are homeless suffer serious long-term effects relating to health, ability to perform at school and the ability to socialize and make friends.

•         People who are homeless face serious health concerns.

The appellant also points to the success of its “eviction prevention program” as evidence that eviction rates for tenants are reduced when organizations like the one operated by the appellant, which provide legal assistance to tenants, are in a position to contact tenants prior to eviction hearings.

I do not dispute the appellant’s position that actions taken to prevent homelessness are positive and contribute to a healthier and safer society.  However, I am not persuaded that disclosing unit numbers of apartments whose residents are subject to eviction applications can itself assist any person, including the appellant in this case, to promote public health and safety.  In my view, any connection to the ability to promote public health and safety is simply too remote to bring it within the scope of the section 21(2)(b) factor. 

Accordingly, I find that section 21(2)(b) is not a relevant factor as it relates to the disclosure of apartment unit numbers contained in the records.

Section 21(2)(c):  purchase of goods and services

The appellant argues that disclosing the requested information would promote informed choice in the purchase of goods and services:

[The appellant’s] eviction prevention program is specifically designed to educate individuals about their rights under the [Tenant Protection Act] and to provide them with information to allow them to make informed choices about whether to defend against the eviction applications made against them. 

Although the information provided by [the appellant] does not promote the purchase of goods and services, per se, it allows individuals to become informed consumers of government services and to have their rights adjudicated by [the Tribunal].

Again, I am not persuaded that disclosing unit numbers of residential buildings occupied by tenants who are the subject of an eviction application would “promote informed choice in the purchase of goods and services”.  Clearly, parties to an eviction application have a right to seek advice and/or representation by an individual who is knowledgeable and experienced in the practices of the Tribunal.  However, this is a right that belongs to a tenant, not a provider of services such as the appellant.  Although I accept that disclosing the unit numbers would facilitate the appellant in contacting tenants to promote its services, it does not necessarily follow that all tenants would necessarily want to be contacted by the appellant, nor does it reasonably follow that without solicitation tenants will remain unrepresented or without means to obtain advice on how or whether to defend against the eviction applications made against them.  Tenants subject to Tribunal applications are able to seek representation and advice of their own volition by consulting with lawyers, agents and community legal clinics.  As well, the appellant is in a position to advertise and promote its services without the need to access the tenants’ personal information.

Accordingly, I find that section 21(2)(c) is not a relevant factor as it relates to the disclosure of apartment unit numbers contained in the records.

Section 21(2)(d):  fair determination of rights

The appellant submits that the personal information is relevant to a fair determination of rights:

[The appellant] acts as an intermediary for the individuals to whom the information pertains.  The role that [the appellant] plays is a critical role in the fair and just administration of justice to low-income individuals, many to whom are members of historically disadvantaged groups, who without [the appellant’s] intervention are unlikely to defend eviction applications or receive a fair determination of their rights.

The appellant also submits:

Tenants with low incomes are often intimidated by their landlords, do not understand [the Tribunal] process, and do not know where to get help.  Left on their own, tenants are often unable to navigate their way through the process or get the help they require.  Tenants benefit from [the appellant’s] eviction prevention program which actively seeks them out and offers information to them.  [The appellant] is unable to provide this service in the absence of the information requested and the effects of this gap in service will be an increase in evictions.

As the wording of section 21(2)(d) makes clear, this factor only comes into play when the personal information “is relevant to a fair determination of rights affecting the person who made the request”.  That is not the situation here.  Although the appellant’s organization acts as agent to tenants defending eviction applications before the Tribunal, its request under the Act was not made in the capacity of an agent for any identified client.  The appellant is not involved in any dispute in which its rights are at issue, and any role the appellant may play in representing other unidentified individuals in exercising rights is simply not relevant in the context of section 21(2)(d), which speaks to the rights of requesters or their agents or counsel.

Accordingly, I find that section 21(2)(d) is not a relevant factor as it relates to the disclosure of apartment unit numbers contained in the records.

Summary and conclusions

I have determined that there are no factors under section 21(2) that favour disclosing the unit number of apartments whose residents are subject to eviction applications before the Tribunal.  Because section 21 is a mandatory exemption, in the absence of any factors favouring disclosure I must conclude that the requirements of the exception in section 21(1)(f) are not present, and that disclosing the unit numbers would constitute an unjustified invasion of the privacy of tenants residing in these units.  Therefore, the unit number contained on the eviction application form qualifies for exemption and, subject to my discussion of section 23 below, must not be disclosed.

PUBLIC INTEREST OVERRIDE

General principles

The appellant submits that the "public interest override" in section 23 of the Act applies in this case.  Section 23 reads as follows:

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.

For section 23 to apply, two requirements must be met.  First, there must be a compelling public interest in disclosure of the records.  Second, this interest must clearly outweigh the purpose of the exemption.

In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government [Order P-984].  Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing the citizenry about the activities of their government, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices [Order P-984].

The word “compelling” has been defined in previous orders as “rousing strong interest or attention” [Order P-984].

Is there a compelling public interest in disclosing the unit numbers?

The appellant submits that there is a compelling public interest in preventing the evictions of low-income individuals from their homes:

…  The disclosure of the information requested will serve the public interest by permitting [the appellant] to continue its eviction prevention program and provide information and assistance to low-income families facing eviction applications from their landlords.

The appellant submits that, once the landlord files an application for eviction the Tribunal does not notify the tenant directly that eviction proceedings have been commenced.  Instead, the landlord is responsible for providing notice of the application to the tenants.  According to the appellant, many tenants never receive a copy of the Notice of Hearing from their landlords and therefore are unaware that eviction proceedings have been initiated against them.  The appellant also points out that the Notice of Hearing form may be difficult for some tenants to understand.

The appellant describes why its services help promote a public interest:

The individuals targeted by [the appellant’s] eviction prevention program are low-income families, many of whom are from historically disadvantaged groups in society. [The appellant] targets these individuals because they are members of groups who often have the most difficult time accessing information about their legal right and their rights as tenants.  These individuals are frequently unaware that they have the right to be free from discrimination in accommodation and that these rights are protected under the Ontario  Human Rights Code .  As a result, in the absence of information about their rights and the means available to exercise them, these low-income tenants are vulnerable to abuses of the law by landlords, and are at risk of falling through the cracks in the system.

[The appellant] also provides this service to tenants because of its commitment to promoting the equality rights of those who are disadvantaged in society.  These are important protections, which are guaranteed to all Canadians in our human rights legislation and in sections 7  and 15  of the Canadian Charter of Rights and Freedoms .  Housing is fundamental to our abilities to be safe and secure.  To have any chance of achieving equality in accommodation, tenants must be educated about their rights and given the opportunity to exercise those rights to allow them to remain in their homes.

The appellant goes on to describe in detail what it sees as the societal cost of tenant evictions, including those resulting from default orders frequently tied to the absence of notification by landlords.  It also points to the financial pressure created on tenants who are evicted and forced to find alternative housing in a tight housing market.

The appellant also submits:

A critical part of preventing eviction is through programs such as those run by [the appellant].  In order to run these programs, [the appellant] requires access to the information it requested from [the Tribunal].  If released, [the appellant] will use this information to contact tenants directly to provide them with information and assistance with respect to resources available to them should they wish to contest the applications.  This information is crucial if tenants are to be given an opportunity to be educated about and exercise their legal rights in the eviction process, and in helping them to remain in their homes.

The information sought by [the appellant] is only used for the sole purpose of contacting tenants to prevent unnecessary evictions.  It is not used for the benefit of any other party.  [The appellant’s] use of the information is done to benefit tenants and in the interests of the public by preventing homelessness.  The eviction prevention program helps prevent homelessness and saves government resources, as well as helping tenants to avoid the stresses of eviction and financial costs of finding new housing.

The appellant has provided detailed and comprehensive submissions on the impact of the current regime for dealing with landlord-tenant disputes under the Tenant Protection Act.  It also details what it perceives as the inequities relating to the processes governing the operation of the Tribunal.  Many of these perceived inequities appear to stem from the lack of a statutory obligation on the part of the Tribunal to notify tenants when an eviction application has been filed by their landlord, which results in a high number of default orders that disproportionately impact low income or disadvantaged tenants who do not have the means or the necessary information to ensure that their interests are protected.  The appellant is not alone in expressing these concerns.  It makes reference to a number of other individuals and organizations that have voiced similar concerns, including legal aid clinics and academics.  The appellant also points to submissions made to the Mayor of the City of Toronto and to the provincial Ombudsman calling for action to correct these perceived inequities.

That being said, what is important for me to state and for the appellant to recognize is that my capacity to address any such perceived inequities is restricted to the context of the Act and the powers and duties given to me by the legislative assembly in that regard.  The appellant has made a request under the Act for access to information contained in records held by the Tribunal, and will be provided with the vast majority of this information as a result of my findings in this order.  The only withheld information is the unit number component of the address of residences housing tenants who are the subject of eviction applications.  Having found that this information qualifies under the mandatory section 21 privacy exemption, it is now my responsibility to determine whether there is a compelling public interest in disclosing this specific information in the context of this appeal. 

While I accept that the appellant’s submissions raise compelling matters of public interest, in my view, that is not sufficient to meet the requirements of the first part of section 23.  There must be a compelling public interest in disclosure of the information protected by the exemption claim, which in this case is restricted to the unit numbers contained on the eviction application forms.  I am unable to conclude that there is.  The Tenant Protection Act is the current law governing landlord-tenant relationships.  It was passed by the legislature following public debate.  The appellant may feel that the statutory provisions and the procedures enacted by the Tribunal to adjudicate disputes do not adequately balance the public interest considerations relating to landlord-tenant disputes.  I make no finding and offer no opinion on this because, quite simply, I have no jurisdiction to do so.  My only comment in that regard is that there are other channels available to the appellant and others to advance their positions and to effect change, but the Act is quite limited in that regard.  My only role here is to determine whether there is a compelling public interest in disclosing the unit number contained in the records, and I find that there is not. 

While the appellant’s representations may demonstrate a “rousing strong interest or attention” in the landlord-tenant dispute resolution scheme under the Tenant Protection Act, the appellant has not convinced me that there is a “rousing strong interest or attention” in disclosing the unit numbers of residential apartments housing tenants involved in eviction disputes, as required in order to satisfy the requirements of the first part of the section 23 test.

Accordingly, I find that section 23 has no application in the circumstances of this appeal.

ORDER:

1.         I uphold the Tribunal’s decision to withhold the unit component of the address information contained on the eviction application forms.

2.                  I order the Tribunal to disclose to the appellant the other requested information contained on the eviction application forms, except for the unit component of the address information, by May 19, 2004.

3.                  In order to verify compliance with this order, I reserve the right to require the Tribunal to provide me with a copy of the information disclosed to the appellant pursuant to Provision 2, upon request.

Original signed by:                                                                              April 28, 2004                                              

Tom Mitchinson