Ontario’s Divisional Court, in a 2-1 decision, upheld the determination of Ontario’s Privacy Commission to order the release of 2018 election records in Mississauga, dismissing an appeal by Mississauga’s City Clerk against a ruling of Ontario’s Information and Privacy Commission (IPC) that determined where the MEA states all election records are public documents.
The Act states they are public documents.
This case has some interesting quirks to this case.
Firstly, the request for a 2018 ward-level voter spreadsheet was made under the Municipal Freedom of Information and Protection of Privacy Act. By dealing with it under MFIPPA, the case went to Ontario’s Privacy Commission.
Secondly, the City of Mississauga did not avail itself of the ability of a Municipal Clerk to seal the list of who voted inside of ballot boxes.
Once sealed inside the ballot box, Section 86(6.1) states that s. 88(5) “does not entitle a person to inspect the contents of a ballot box.
Hamilton’s City Clerk is availing themselves of this provision to permanently block 2022 candidates from verifying voter lists after the City’s elections portal crashed on election day.
[The City of Hamilton had to declare an emergency due to the gross errors at numerous polling stations throughout the day, including the City turning away voters at times.]
Judicial reviews by the Divisional Court presume deference to specialized decision-makers such as the IPC. In dismissing Mississauga’s appeal, the Court noted that Mississauga failed to advance its stronger arguments at the IPC, instead attempting to enter them for the first time in Court. The Court declined to consider new arguments.
The dissenting Justice wrote they would’ve returned the matter to the IPC for reconsideration in light of new evidence, and also for a determination if an electronic version of a record that paper version would be exempt from disclosure within a ballot box should also be exempt.
Ontario’s Ministry of Municipal Affairs conducts a review following each municipal election cycle.
It will be interesting to see if the MEA is changed in light of the 2018 events in Mississauga and the similar situation that unfolded in Hamilton last month.