Law Commentary

Court Decision Protects ATIP Rights

Court Decision Protects ATIP Rights
by Mark Bourrie
February 23, 2024
Court Decision Protects ATIP Rights

Ken Rubin is a professional investigator who is one of the country’s most skilled access to information users. Rubin’s clients include media and corporations who want information on the way all levels of government conduct business.

ATIP and its provincial variants are supposed to give structure to the public’s access to public documents while protecting the legitimate privacy rights of Canadians. It’s a saw-off system in which one set of rights — the right to know — is balanced against the right to privacy. But that’s not what happened here.

Rubin was sued by a corporation simply because he asked a question. The corporation claimed that accusations of wrongdoing were embedded in the question. But an Ontario Superior Court master disagreed, saying Rubin had the right to ask for things that might exist. The information would, in the end, show whether potentially embarrassing material did exist.

Here are some of my questions about the decision, which I hope gets published on Canlii.

  1. How did the corporation argue that Rubin’s question was “published”, in the sense that filling out a form and sending it to an agency doesn’t seem like publication to me? The master seems to have seen this the same way.
  2. Was this argued as a Strategic Lawsuit Against Public Participation? The tests in Sec. 137.1 of the Courts of Justice Act, and re-affirmed by the Ontario Court of Appeal in Pointes Protection, both draw on, and buttress, expression rights under Sec. 2(B) of the Charter. (Pointes and another SLAPP case were appealed to the Supreme Court of Canada, which will hear them in November),
  3. What were the costs awarded to Rubin? Sec, 137.1 allows for full indemnity costs and damages awarded to victims of SLAPPs, which is what we (the defendants in a libel suit) got in McKean and Ardiel v Seguin, Wyckes and Riverside Press) earlier this year. There are other types of costs that can be awarded by courts, and most don’t come near paying the winner’s lawyer’s bill. Often the successful party still has to cut a cheque to counsel, or lawyers discount their bill.

This case should be a huge relief to anyone who uses ATIP, especially members of the media who, like Rubin, have neither the time nor resources to be dragged through litigation. It appears Rubin’s case was heard quickly, and that the master made a solid decision that is very much in the public interest.

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