The Ontario Court of Appeal has restored an order compelling the Liquor Control Board of Ontario (LCBO) to release theft and shoplifting data to the Toronto Star, rejecting the retailer’s arguments that it could compromise worker and customer safety.
The court overturned a previous Divisional Court ruling that had sided with the LCBO’s refusal to disclose the requested records under the Freedom of Information and Protection of Privacy Act (FIPPA). The Information and Privacy Commissioner of Ontario (IPC) had initially ordered the LCBO to provide the data, but the LCBO sought judicial review, arguing that disclosure would harm its economic interests and compromise the safety of its workers and customers.
The case originated in January 2019 when two Toronto Star reporters requested two sets of records from the LCBO:
- The total annual number of recorded incidents of theft or shoplifting province-wide from 2008 to the present.
- The monthly number of recorded theft or shoplifting incidents at each LCBO location in Toronto from January 2018 to the present.
On May 13, 2019, the LCBO denied the request, citing exemptions under sections 14 (law enforcement), 18 (economic interests), and 20 (danger to safety or health) of FIPPA. The LCBO contended that releasing the information could enable thieves to identify and target vulnerable stores, thereby endangering employees and customers. Additionally, the LCBO argued that disclosure could damage its reputation with consumers, adversely affecting its competitive position against other alcohol retailers.
The Toronto Star appealed the LCBO’s decision to the IPC. The IPC adjudicator reviewed the case and, on September 16, 2022, ordered the LCBO to disclose the records. The adjudicator determined that the LCBO had not met the evidentiary burden required to justify the exemptions under FIPPA.
The LCBO then sought judicial review from the Divisional Court. In a majority decision dated August 10, 2023, the Divisional Court set aside the IPC’s order. The majority concluded that the adjudicator’s decision was unreasonable due to a misapplication of the standard of proof, a misapprehension of evidence, and inadequate reasons.
However, Justice Nancy L. Backhouse dissented, asserting that the adjudicator’s decision was reasonable and should be upheld. She noted that the adjudicator had applied the correct legal test and had appropriately considered the evidence within the constraints of FIPPA’s confidentiality provisions.
The IPC appealed the Divisional Court’s decision to the Court of Appeal. On review, the Court of Appeal effectively “steps into the shoes of the Divisional Court and focuses on the adjudicator’s decision,” as outlined in Mason v. Canada (Citizenship and Immigration).
The Court of Appeal agreed with Justice Backhouse’s dissent, stating, “We agree with the dissenting judge that the adjudicator made no reversible error and that her decision was reasonable.” The court emphasized that the adjudicator had correctly applied the “could reasonably be expected to” standard of proof as defined by the Supreme Court of Canada in Merck Frosst Canada Ltd. v. Canada (Health) and Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner).
The LCBO had argued that the adjudicator failed to adequately measure their evidence against the required standard, which occupies a “middle ground between that which is probable and that which is merely possible.” The Court of Appeal rejected this argument, stating, “It was clear that the adjudicator applied the correct standard and dealt with the crux of the LCBO’s evidence relevant to its submissions.”
Regarding the adequacy of the adjudicator’s reasons, the court noted that FIPPA’s confidentiality provisions limited the level of detail that could be disclosed in her rationale. “The adjudicator’s reasons are adequate, particularly in light of the mandatory restraints imposed by the confidential nature of the LCBO’s evidence under FIPPA,” the court stated.
The LCBO also contended that the adjudicator failed to consider changes to the liquor licensing scheme under the Liquor Licence and Control Act, 2019, specifically section 77(2), which prohibits the disclosure of individual store sales data. The Court of Appeal found this argument unpersuasive, noting that these statutory changes were not raised before the adjudicator. “It is inappropriate to fault the adjudicator for not considering the changes… on which the LCBO seeks to rely,” the court held.
For more information, see Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner), 2024 ONCA 803 (CanLII).
