IN THE MATTER OF Julian Fantino, Chief of Police of the London Police Service;

AND IN THE MATTER OF William J. McCormack, Chief of Police of the Metropolitan Toronto Police;

AND IN THE MATTER OF James C. Adkin, Chief of Police of the Windsor Police Service;

AND IN THE MATTER OF Murray K. McMaster, Chief of Police of the Sarnia Police Service;

AND IN THE MATTER OF the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Ch.M.56;

AND IN THE MATTER OF the Information and Privacy Commission of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Ch.M.56;

I have made endorsements on both the application and the motion records. I will share those endorsements with you in a few moments. I wish firstly to personally thank the parties for working through to this resolution. I think that this is a very practical approach to take. The matter may now go before the commissioner to have the issues dealt with in that forum. If the need should arise, the stay contemplated can be removed.

In the recitals for the paragraphs that Mr. Caskey read, there is the following: "And whereas Justice Browne has expressed his opinion that the information and the privacy commissioner of Ontario has the jurisdiction to deal with issues of abuse of process under the provisions of the Municipal Freedom of Information and Protection of Privacy Act and, in particular, to consider issues pertaining to the reasonableness of process under the act."

I have expressed that opinion adopting the submissions of counsel addressing that issue before me. I would like to expand upon that recital. The words in the recital make reference to "abuse of process and issues of reasonableness of process". I expand with the following comment that in the consideration of reasonableness, it may become part and parcel of reasonableness consideration to ask whether the subject matter is frivolous and/or vexatious. I want to make it clear that looking at issues of reasonableness, in my opinion, incorporates the looking at issues of frivolous and vexatious upon appropriate evidence.

Certain of the decisions before me by inquiry or hearing officers give me some concern. There appears to be a reluctance to look at these two words, "frivolous" and "vexatious". I am not as timid as that. I am quite prepared to look at those words. I look at them in different ways. I look at them in the concept of considering words of definition. I look at them in terms of consideration of evidence which may be descriptive of fact conclusions in turn resulting in a conclusion that those particular things described are frivolous or vexatious. It would follow that there was unreasonableness.

Certain dictionary words of definition may be a starting point as, for example, "frivolous" might be considered as something lacking in proper seriousness, something empty, something without importance. "Vexatious" might be (using its own self as a definition) something causing vexation, something causing annoyance, something instituted without real grounds and meant to cause trouble or annoyance.

The real thrust of looking at evidence to conclude whether or not there is to be a factual finding that such evidence results in a fact conclusion of frivolous or vexatious is to look beyond the definition type words to the descriptive nature of the evidence. Certain examples of evidence might well be what would be determined to be a nuisance request, something arising from a multiplicity of similar requests, or simply repetitive requests, or perhaps a history of abandonment of requests. It is conceivable that there could be a scenario where the quantity of requests might be so large as to practically and effectively interfere with the operation of the public institution. There might be some purpose other than the apparent purpose of the request. Such as, for example, a collateral purpose or an ulterior purpose. There is a connotation of something not legitimate in abuse of process. All of those descriptive things should be looked at in consideration of evidence to form factual conclusions of what is frivolous or vexatious.

Specifically, I want to go back to the word "history" that I touched upon when I made reference to history of abandoned requests. It would be appropriate to look beyond the four corners of a specific request to look at the history dealing with a requester, or perhaps, history dealing with a similar requests.

It is clear, I think, from the material that is before me that an amendment to the legislation would be desirable. An amendment could spell out that the commissioner has the jurisdiction to deal with frivolous and vexatious applications and appropriate remedies. That would mean that the scheme of the act would still be in place: that there is a right to information, that the commissioner would be the on making decisions, that there would be a burden upon an institution wanting to address exemption issues, to raise that issue with the commissioner.

Ontario has some old legislation, now repealed, but the concepts find their way in the Courts of Justice Act and the new rules. There was at one time a Vexatious Proceedings Act and paraphrasing from the single section of that previous statute are some words which can be of assistance. The section makes reference to a person having habitually and persistently and without any reasonable ground instituted vexatious proceedings. Those paraphrased or quoted words would be of assistance to anybody charged with making a fact conclusion upon appropriate material or evidence.

The endorsement which I have made is similar on both the motion and the application. "Minutes of Settlement filed. Application stayed, subject to further order." There is a similar endorsement on the motion simply substituting "motion" for the word "application."

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