ONTARIO COURT (GENERAL DIVISION)
(DIVISIONAL COURT)

IN THE MATTER OF a decision of the Commissioner
under the Freedom of Information and
Protection of Privacy Act

BETWEEN:

THE MINISTRY OF CONSUMER AND COMMERCIAL RELATIONS

Applicant

- and -

TOM MITCHINSON and JOHN DOE

Respondents

ENDORSEMENT

This is an application by the Ministry of Consumer and Commercial Relations to stay Order P-1114 of Assistant Information and Privacy Commissioner Mitchinson issued Feb. 1/96 pending the final disposition of the within application for judicial review.

The order in question requires the applicant Ministry to provide to the respondent certain microfilmed records which were kept by the Ministry until Feb. 1/96. These records had been provided to the respondent from early in 1993 to March 5, 1995 for a prescribed fee. The Ministry refused to provide the records after March 5, 1995 and the respondent then sought their production under the provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3 1. The Ministry still refused production and hence the appeal to the Commissioner who in reasons released Feb. 1/96 ordered that the Ministry provide the information requested.

The Ministry has sought judicial review of the decision of the Commissioner and pending the outcome thereof seeks to stay the order of the Commissioner.

I must be satisfied that there is a serious issue to be determined, there is a likelihood of harm to the applicant if the stay is not granted and that the balance of convenience favours the applicant.

I am satisfied that there are serious issues to be tried here from the Ministry's perspective - the statutory interpretation of sections 22 and 18 of the Act and whether by virtue of seemingly inconsistent findings in relation to the nature of the product - whether the decision is patently unreasonable. My view of the likely success of the Ministry is irrelevant. If the stay is not granted, I am persuaded that the judicial review application will be rendered moot and the balance of convenience here favours the applicant.

I am not persuaded that any irreparable harm will result to the respondent Datacor; the information they seek has not been available to them since March, 1995 - a year. I am told dates are available when this judicial review application could be heard as early as the middle of this month (March 1996) in April and in May of 1996. In view of the delay already incurred and the fact that the application can be heard by the Court very soon, I am not persuaded that Datacor will be hurt by a further delay which could be as short as two weeks.

There is no evidence to satisfy me that there has been any bad faith on the part of the Ministry in relation to this matter.

Although Ms. O'Donoghue appeared on behalf of the Assistant Commissioner, she took no part in the argument and did not seek costs.

In result an order will issue granting a stay of Order P-1114 as requested. This order is granted on condition that the Ministry co-operate with Datacor in an effort to have the judicial review application heard at the earliest available dated convenient to counsel.

Cost reserved to the panel which hears the judicial review.