14 June 2012

Your Law School called… #nlpoli

The more they talk, the worse it gets.

In the House of Assembly on Thursday, justice minister Felix Collins gave some examples of what he would consider "frivolous and vexatious” requests for information.

Now before we go any further, we should explain what those words usually mean to lawyers.  After all, Collins is a lawyer so he should understand the concept.

This definition is taken from a 2010 Ontario Court of Appeal decision in a case called Pickard v. London Police Services Board (canlii.org via Morton’s Musings):

[19]  A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success.  The reasons may vary.  A vexatious appeal is one taken to annoy or embarrass the opposite party, sometimes fuelled by the hope of financial recovery to relieve the respondent’s aggravation.

One of the examples, Collins gave was of a person who asked for copies of e-mails sent and received by seven people over the course of year.  Frivolous and vexatious harrumphed the law school graduate. And now under Bill 29 a cabinet minister can dismiss such a request out of hand and save time and money.

There are a few problems with Felix’s example. 


For starters,  the provincial government already won that one.  They refused to comply with the request because they deemed it would take huge amounts of time and that would interfere with the operations of the department. The 2002 access law includes a section that covers those sorts of requests.

On appeal to the privacy commissioner, the applicant lost. The commish agreed with the government and the whole thing vanished.  Incidentally, the applicant wanted e-mails for people in the premier’s Office for a period that included the start of the breast cancer scandal.

If that wasn’t good enough, there’s already a section of the Act that let’s departments refuse to give answers where the person already has the information. That’s about the only frivolous request you might think of. Other than that, Felix can’t define what a frivolous information request would be.

And ultimately, the old access law prevented genuinely frivolous or vexatious requests by charging people for the information. The Premier’s Office used that when they just didn’t want to hand over copies of public speeches.  They wanted $10,000 up front.  usually they asked for the cash up front before they started work.

But think about it:  public speeches and they were refusing to hand them over.  In other places, government’s hand those things out like candy.  It’s like the CBC request for restaurant inspection reports.  Paul Davis used that as an example of frivolity. In other places, the department posts them to the Internet free of charge. It costs Davis and his gang more to keep things secret than it would to just let people have easy access to a whole pile of information.

Ultimately, Felix just keeps having the same problem over and over again.  When asked to give a simple example of why government wants to change the access laws, Collins cannot provide one or, as in this case, provide one that stands up to scrutiny.

By the by, Felix shouldn’t be surprised if his law school calls and asks for their degree back.