The Information Commissioner determined that a complaint was inadmissible since it did not meet the requirement of section 31 of the Access to Information Act.
Under section 31, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.
The prescribed time limit to submit complaints is 60 days after one of the following:
- the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
- the day requesters obtain access to part or all of the requested records
- in any other case, the day requesters become aware that grounds for complaint exist.
The Act does not allow the Information Commissioner to investigate complaints submitted after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.
In the present instance, the complainant alleged that the institution had “failed to respond after 30 days and / or an extended period of time.” They also stated that the complaint concerns the institution’s “deemed refusal under s.10(3) of [the Act].”
Subsection 10(3) is intended to enable a requester to submit a complaint, as otherwise a requester would have to wait in vain for a response. Pursuant to section 31, a requester cannot wait indefinitely before complaining once an institution is in deemed refusal.
Since the complainant did not receive a notice of refusal or access to part or all of the records, the statutory time limit within which the complaint about the institution’s alleged failure to meet the 30 days or extended period and alleged deemed refusal under subsection 10(3) of the Act was 60 days from the day after the day the complainant became aware of this ground for complaint (third situation above).
The OIC, after receiving the complaint, asked that the complainant indicate the date they became aware that the institution did not respond to the access request by the 30-day or extended time limit, and explain the facts or events that caused them to become aware on this date that the institution did not respond to the access request on time. The complainant did not directly answer these queries. Instead, they took the position that the complaint is not per se a complaint about the institution’s deemed refusal of access, but is a complaint about its “ongoing deemed refusal as of the date that [they] made the complaint: January 21, 2025.” As the complaint concerns the institution’s “ongoing” refusal “as of the date of [their complaint],” the complainant maintained that they could not have been aware of the grounds for that complaint before that point in time.
Based on the information provided, the OIC was not satisfied that the complaint was submitted within the statutory time frame set out in section 31 of the Act. The OIC does not agree with the complainant’s contention that a complainant becomes aware “anew” of an institution’s deemed refusal of access with each passing day that an institution fails to respond to an access request. Although a complaint may concern an institution’s ongoing failure to respond to an access request, this does not negate the requirement that such a complaint must be made within 60 days after the day on which the person first becomes aware of an institution’s failure to respond within the time limits of the Act.
This interpretation is in keeping with the decision in Chabursky v. Canada (Attorney General), 2024 FC 1595, in which the Federal Court concluded that the complainant must have been aware of grounds to complain about alleged missing records by at least the date on which the complainant first communicated to the institution that they were of the view that such records were missing.
The complainant suggested that the Chabursky decision is distinguishable because it involved alleged missing records, whereas their complaint concerns the institution’s alleged “ongoing” deemed refusal of access. What is relevant about the Chabursky decision is the Court’s determination that the 60-day time limit to complain about the alleged missing records began the day on which there was evidence of the complainant first being aware of the issue. There is no indication that the Court would have concluded otherwise had the complaint been framed as a complaint about “ongoing” missing records. The fact that the Court in Chabursky rejected arguments that the complainant should be taken to have become aware of missing records at a later point in time because of, for instance, ongoing discussions with the institution, undermines the contention that the timing of when someone becomes aware of grounds to complain may be extended over time.
The complainant also argued that the underlying facts of Chabursky indicate that the OIC accepted and investigated a complaint “in relation to a delay of more than three years.” The OIC’s decision to accept and investigate the delay complaint, however, was not before the Court in that case. As a result, the decision does not address the basis upon which the OIC accepted and investigated the delay complaint referred to in the Court’s background facts. In turn, the case has no bearing on whether their complaint can be accepted and investigated by the OIC.
The complainant also made reference to a number of previous decisions rendered by the Office of Ontario’s Information and Privacy Commissioner, as well as the OIC, in which deemed refusals of access were described as “continuing” or “ongoing” (i.e. 2022 OIC 47, 2011 CanLII 43467, 2004 CanLII 56197 and 2013 CanLII 01443; 2020 OIC 1, 2020, OIC 2, 2020 OIC 6, and 2021 OIC 27). In the OIC’s view, the fact that a deemed refusal of access can be ongoing/continued does not alter the date on which a complainant becomes aware that grounds to complain exist. Upon becoming aware of an institution’s deemed refusal of access a complainant must be taken to be aware of grounds to complain about the institution’s ongoing/continued deemed refusal of access.
To the extent that Ontario’s Information and Privacy Commissioner may have previously accepted some appeals concerning institutions’ deemed refusals of access beyond the timeframe set out in its governing statutes, those decisions do not authorize the OIC to accept and investigate complaints under the Act that are outside the time-limits set out in section 31 of the Act.
The complainant also questioned how the OIC in Department of Justice Canada (Re), 2020 OIC 6, received and investigated a new complaint about an ongoing refusal of access after having completed an investigation of that very issue. It is for this reason that the OIC’s acceptance of complaints concerning ongoing deemed refusals of access known to the complainant has evolved over time.
According to the information provided when the complainant submitted their complaint:
- The access request was submitted on May 1, 2024.
- The insitution claimed an extension of time under paragraph 9(1)(c) on May 28, 2024.
- The institution “did not meet the timelines for the s.9(1)(c) extension.”
- The complainant had not heard from the institution since late August 2024, at which point they were told by the institution that “the third party that was consulted did not file a section 44 application for review, and also that additional records were retrieved which would require consultation.”
