Code of Procedure

Highlights of Revisions Made to the Code of Procedure for FIPPA and MFIPPA

1. Section 2 clarifies that the Code is to be interpreted broadly to secure the most fair, just, and expeditious determination of the merits of an appeal, and the IPC can vary its own procedures to do so. This section also includes references to the right to accommodation under the Human Rights Code, the ability to have an appeal heard in English or French, and the requirement for parties to adhere to the IPC’s Public Code of Conduct.
2. Section 3 provides for new and updated definitions to commonly used terms. This includes a change separating the “Intake” stage from the “Early Resolution” stage. A definition for “Constitutional Question” was added, together with an “Index of Records”.
3. Section 4 includes new information for submitting an appeal form and paying appeal fees through the IPC’s electronic appeals submission portal, and incorporates information about fees that is contained in the old Practice Direction Number 10. Specifically, subsection 4.05 was further revised to maintain the language in subsection 4.04 of the previous Code regarding the 30-day time period to file an appeal. This follows the language in section 50(2) of FIPPA and section 39(2) of MFIPPA. Institutions can continue to follow their existing statistical reporting processes.
4. Section 5 refers to the Registrar’s intake function regarding the screening and streaming of appeals, to be clearer about the Registrar’s role in determining which stage of the process an appeal will begin. This section also clarifies the Registrar’s existing function of requesting copies of records from an institution, including a detailed index of records. Subsection 5.04 has been clarified to note that the Registrar has the authority to order the production of records to the IPC as may be required, for example where the institution fails to respond to the request. The Registrar’s function has now been separated from the early resolution stage, reflecting existing practice.
5. Section 6 details the powers of the IPC at the early resolution stage to informally resolve an appeal. Early resolution maintains the authority to determine jurisdictional issues for submitted appeals. Files that do not resolve at early resolution can be moved to another stage in the appeal process that can resolve the file most fairly and expeditiously, including expedited appeals, mediation, or adjudication, at the discretion of the early resolution staff member. This reflects current practice.
6. Section 7 outlines the procedures that may be used during mediation. Whereas the previous Code stated that an appeal not fully settled at mediation will move to adjudication, the revised Code allows mediation to move an appeal to adjudication or another part of the appeal process, as appropriate, to resolve any remaining issues. This also reflects current practice.
   
   A change has been made to the previous draft of the new Code under subsection 7.03 to clarify that a Report of Mediator will be prepared for appeals that are not fully resolved. Subsection 7.08 was also revised from the previous draft to note that when an appeal is fully settled, the IPC will close the file and notify all parties.
   
   This section also permits a mediator to schedule a mediation meeting on a fixed date, through telephone or a virtual meeting platform, as determined by the mediator in consultation with the parties. Also, where a mediator advises an appellant that further mediation is not possible but the appellant refuses to have the appeal move to adjudication or another part of the appeal process, the file will be closed.
7. Section 8 sets out in detail the procedures of the IPC when considering an appeal at adjudication. Most of the included procedures are reflective of current practice, which has evolved over time compared to the previous Code. Of note, this section clarifies that an adjudicator may consider the information contained in the Report of Mediator when deciding whether to conduct an inquiry, ensuring the effective use of the IPC’s efforts in processing appeals.
   
   This section also sets out the reasons for which an adjudicator may decline to conduct an inquiry generally. The provisions for the possibility of an oral inquiry have been moved to this section (note that generally oral inquiries are used when records are not at issue, to maintain the confidentiality of records during an appeal).
   
   While this occurs in rare circumstances, subsection 8.14 allows an adjudicator to invite representations from other individuals or organizations who may be able to provide useful information to assist with the appeal.
   
   Finally, this section clarifies that if a party does not submit representations by the specified deadline, the IPC may proceed with the inquiry in the absence of such representations, or it may deem the appeal abandoned and close the file if any party other than the institution fails to submit representations.
8. Section 9 establishes a new general power for the IPC to stream specifically identified appeal types to a new expedited appeals process, which became effective on July 9, 2024. Such expedited appeals may follow different or abbreviated processes or procedures to assist with the timely processing of such appeals. Further information regarding expedited appeal processes have been posted to the IPC’s website, including Practice Direction Number 13. The previous separate sections involving “straightforward appeals”, “reasonable search appeals”, and “fee appeals” have been removed in consideration of the current operation of the IPC’s Tribunal.
9. Section 10 provides for other general powers of the IPC, including the power to compel the production of records in the custody or control of the institution and the power to enter and inspect an institution’s premises in accordance with the existing powers under FIPPA and MFIPPA. This section also permits the IPC to receive affidavit evidence, which follows existing practice. Finally, there is a clarification that the IPC can issue various guidance, practice direction, policies, and other documents to give effect to the requirements of the Code.
10. Section 11 more fully sets out the IPC’s power to request records and an index of records from institutions, as they may be required, to assist with the processing of an appeal. Clarification has been made to reflect the wording in FIPPA and MFIPPA that an institution shall not willfully obstruct or frustrate the IPC’s ability to obtain accurate records. Also included is a reference to offence provisions from FIPPA and MFIPPA should any person: alter, conceal, or destroy a record with the intention of denying an access right; willfully obstruct the Commissioner; willfully make a false statement to mislead the Commissioner; or willfully fail to comply with an order of the Commissioner.
11. Section 12 limits an institution’s ability to make a new discretionary exemption claim more than 35 days after receipt of the notice of appeal, similar to the previous Code. 
    
    Further changes from the previously circulated draft of the Code have been made to reflect the current practice and retain the adjudicator’s discretion, in exceptional circumstances, to consider a new discretionary exemption claim made after the 35-day period. Identical to previous wording, institutions do not have an additional 35-day period to make new discretionary exemptions after an access decision is issued that resolves a deemed refusal appeal.
12. Section 13 contains updated language regarding the submission of a constitutional question, incorporating the provisions of the old Practice Direction Number 9. The time for raising a constitutional question (now 15 days) has been amended to align with the time set out in section 109 of the Courts of Justice Act.
13. Section 14 expands on the IPC’s power to grant stays, clarifying that stays may be granted for a specified time period or until the occurrence of a specific event.
14. Section 15 establishes a new process for the reconsideration of IPC decisions and orders. Whereas currently the individual who made the decision in question will respond to the request, this section sets out the process for an initial screening of a reconsideration request. This gatekeeping function will better allow for the appropriate use of staff’s time to address reconsideration requests that meet the established criteria. If the party requesting reconsideration has not made an arguable case that any of the grounds for reconsideration are established, then the reconsideration request will be denied without further deliberation, and the appeal closed by a letter to the requester.
    
    A new page limit is imposed on reconsideration requests of no more than ten single-sided letter-sized pages in no less than 12-point font. There is also a clarification from the previous draft that the final decision to grant or deny a reconsideration on its merits will be made in writing in the form of an order (not a letter), with a copy sent to the parties.
15. Section 16 expands on the previous Code’s provisions to place an appeal on hold or deem it abandoned and clarifies under what circumstances an appeal may be placed on hold, with notice to the parties. This includes specific time frames for action by an appellant or third-party appellant, and a requirement that such parties respond to the IPC otherwise their appeal may be deemed abandoned and closed without further notice to them.
16. Section 17 builds upon the existing power of the IPC to vary its own processes, or re-stream an appeal to a different stage of the process at any time, in order to secure the most fair, just, and expeditious resolution of the proceedings. Requests to vary the process can also be made to the applicable IPC staff member handling the appeal at any stage.
17. Section 18 sets out the provisions for computing time to complete general acts while an appeal is being processed, including a note that failure to comply within a certain time may result in a file being deemed abandoned or a determination being made without that party’s submission. Note that days are calculated as calendar days, which is consistent with the interpretation of time period calculations in FIPPA and MFIPPA.
18. Section 19 permits the IPC to make orders or give directions in an appeal to prevent an abuse of its processes, including the authority to deem an appellant to be a vexatious litigant and place restrictions on their ability to file appeals, or close their existing appeals. These matters will be addressed on a case-by-case basis, as the IPC may determine.
19. A new section 20, not included in the previous draft of the Code, addresses the possible use of artificial intelligence (AI) by parties to prepare representations. This follows similar directives in other Canadian courts. Parties are now required to disclose if they have used AI to prepare their representations, including the type of AI used and how AI was used. Parties are also required to review any AI generated content to ensure that legal references or analysis are accurate, and confirm that review to the IPC.
20. The previous Practice Directions have been reviewed and updated to provide accurate information consistent with current IPC practices. Information from the previous Practice Direction Numbers 3 and 4 has been turned into separate fact sheets which can now be found elsewhere on the IPC’s website, and those Practice Directions will be repealed. Practice Direction Number 8 will be repealed as reasonable search and fee appeals are now part of the expedited appeals process, which launched on July 9, 2024 and are dealt with in the new Practice Direction Number 13. In some cases, such as Practice Direction Numbers 8, 9, 10, and 11, the content has been updated and included in the new Code (or in the case of the appeal form, is already available on the IPC’s website).
    
    Updated Practice Directions will be published together with the final version of the new Code. The numbering of Practice Directions will not be altered, to allow for references to the Practice Directions in the IPC’s order history to remain consistent and understandable.
    
    For reference, an archived copy of the old Code and Practice Directions will be available on the IPC’s website.

Practice Directions for FIPPA/MFIPPA Appeals: effective September 9, 2024