Blog: CELA Wins Five-Year FOI Fight on Water Well Safety

By Richard D. Lindgren

An adjudicator with Ontario’s Information and Privacy Commissioner (IPC) has recently ordered the Environment Ministry to provide CELA with key records relating to the adequacy and enforceability of water well standards prescribed by Regulation 903.

CELA first requested these records by filing a freedom-of-information (FOI) request with the Ministry in 2017. The request was made in the context of CELA’s ongoing efforts to strengthen and improve Regulation 903 to protect the health of countless Ontarians who rely upon private wells for drinking water purposes.

For example, pursuant to Part IV of the Environmental Bill of Rights (EBR) CELA filed an Application for Review of Regulation 903 in 2013. This EBR Application was granted in 2014 by the Ministry, which agreed with CELA that it was in the public interest to formally review Regulation 903.

However, upon completion of the Ministry’s internal review in 2016, CELA was informed that the Ministry had decided against making the legislative and regulatory amendments recommended by CELA’s EBR Application. Instead, the Ministry merely proposed to make some minor changes in its non-binding guidance manual for water wells.

CELA advised the Ministry that this outcome was inadequate and non-responsive to the issues raised in the EBR Application, and a meeting was held between CELA and the Ministry in early 2017 to further discuss this matter.

At the meeting, Ministry representatives revealed the existence of certain internal documents – such as a gap analysis, risk assessment, and other materials – that had been generated by Ministry staff during the closed-door review of Regulation 903. The Ministry representatives initially agreed to provide CELA with these documents, but then only delivered a small sub-set of the relevant records.

This maneuver prompted CELA to file its FOI request under the provincial Freedom of Information and Protection of Privacy Act (FIPPA). Nevertheless, the Ministry still refused to disclose the documents on the grounds that they were subject to solicitor-client privilege and contained the advice and/or recommendations of public servants.

CELA then appealed the Ministry’s refusal to the IPC. In essence, CELA’s appeal challenged the applicability of the two above-noted exemptions invoked by the Ministry and submitted that the “public interest override” in section 23 of the FIPPA warranted disclosure of these environmental records.

During the mediation stage of the appeal in 2018, some issues in dispute were scoped or settled by the parties, but the Ministry maintained its refusal to provide the requested records.

The appeal then went to the adjudicative stage in 2019, and the parties exchanged written submissions. In August 2021, the IPC adjudicator found that the public interest override was applicable and ordered the Ministry to provide all the non-privileged records to CELA.

However, it was subsequently determined by the adjudicator that there had been a procedural defect in the process, and he decided to reconsider the disclosure order. After the parties exchanged supplementary submissions, the adjudicator issued a final order (PO-4261-F dated May 10, 2022) that again directed the Ministry to disclose the non-privileged records based on the public interest override:

However, as referenced by the appellant in his initial representations, millions of Ontarians rely on private wells for their drinking water. After considering the ministry’s submission, I do not agree with its distinction that since the records at issue relate to private wells, there is no public interest similar to one connected to a public drinking system, given the number of Ontarians who rely on private wells and their importance to the environment (paragraph 71).

The adjudicator further noted the public importance of full disclosure of water-related records:

In considering the case law set out above, I agree that records that relate to the environment and specifically water safety, by their very nature, raise a public safety concern. Further, when considering the maximum disclosure principle established by the Walkerton Inquiry, the representations of the parties and the substance of the records themselves, I find that there is a compelling public interest in the disclosure of the withheld information to the appellant. Although the ministry submits that the Regulation exists within an array of legislation and regulations that it considered in its EBR review, it does not dispute the appellant’s assertion that private wells in Ontario are not covered by the Source Protection Plans under the Clean Water Act. Therefore, I accept that the Regulation is an important line of defence for Ontarians who are wholly dependent upon private wells for potable water (paragraph 76).

CELA looks forward to receiving these Ministry records by the mid-June deadline specified by the adjudicator. We anticipate that the records will be of considerable assistance as CELA continues its advocacy on the overdue need to substantially upgrade Regulation 903.