Lawyers for the Ontario government and Doug Ford say a landmark decision from the province’s transparency watchdog ordering the premier to potentially release calls on his personal cellphone is a “make-work project” that entertained irrelevant and unreliable evidence.
On Wednesday, a panel of three Ontario judges heard a request by the provincial government for a judicial review of an Information and Privacy Commission decision handed down last year.
Teams arguing for the records to be given over to government staff for review and release said that allowing the premier to “shield” his communications from transparency by using his personal phone would “undermine” democracy in the province.
At the tail end of 2024, the IPC issued two rulings siding with freedom of information requests from Global News and an Ontario doctor seeking access to calls made on Premier Ford’s personal cellphone.
The ruling found that some of the contents of the call logs on Ford’s personal phone “relate to a department or government business matter.”
After two years of arguments, an adjudicator with the IPC concluded it was logical to believe Ford was using his personal phone for government business.
“It is not merely speculative that the affected party used his personal cell phone number in relation to his official or professional capacity or in Cabinet Office-related work,” the ruling read.
“It is also unlikely the affected party would have provided his personal cell phone number widely and at public events as the appellant referred to (and neither Cabinet Office nor the affected party refuted) and received no calls relating to government or Cabinet Office-related matters.”
Shortly after the decision was handed down, the government filed a request for a judicial review, looking to have the order thrown out by an Ontario court.
Premier Ford has shared his personal phone number at various events, including at Toronto Pearson International Airport and the Empire Club.
He recently complained he can’t keep up with the number of people reaching out to him and asked groups to streamline communications to him through one individual.
Lawyers representing the Ontario government told the court on Wednesday the IPC’s decision to order a review and a decision on the eventual release of some of Ford’s personal call records was “unprecedented” and would have implications for thousands of civil servants.
They argued the decision was wrong because it had put more emphasis on the transparency elements of access to information legislation than its privacy protections.
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The government’s team suggested the order forced a “fishing expedition” that is both “unreasonable and impossible” to conduct.
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They said the IPC had ignored arguments the premier is not an institution or a list of reasons his personal phone cannot be a government document. Instead, they accused the watchdog of relying on “non-specific, irrelevant, hearsay” evidence to come to its conclusion.
Gavin Tighe, who argued for Ford himself, said the IPC’s ruling was “extraordinarily problematic” and, if it stood, would tie the premier up for weeks trying to sort out who he may have called years ago.
Tighe said there had “never been an order such as this” from the IPC, arguing the data in the call logs would not offer any information in the public interest, but would instead “invite speculation, gossip and innuendo” and be a “springboard for misinformation.”
He gave the hypothetical example of Ford calling someone in the Ministry of the Environment, Conservation and Parks to wish them a happy birthday, arguing the call log would only show the two had spoken and not the fact the call had been personal in nature.
Tighe argued that to go through Ford’s personal phone record looking for government-related calls would not simply be a fishing expedition, but a request to sort all fish that had been caught.
“FIPPA can never be a fishing expedition,” he argued.
The order, which sided with Global News, tells the premier to release government-related calls from his personal phone over a one-week period in 2022. The order in favour of Dr. Brooks Fallis is for a months-long period during the COVID-19 pandemic.
Tighe said it amounted to a “homework assignment” for the premier of the country’s most populous province, which would sideline him while he attempted to work out which calls — if any — were related to government business.
Ford has, for years, made his personal cellphone number part of his political brand. He has recently complained that he receives too many calls and has thousands of texts he still needs to reply to.
Both Tighe and the government lawyers argued that any calls the premier makes to members of the public on his personal phone are to deal with constituency matters, which are excluded from freedom of information laws.
The IPC’s legal team said the burden of proof should fall to the government to have a court throw out or amend the rulings it had made, pointing out that the justices should provide “deference” to the watchdog’s decision.
They said that neither the government nor the premier had offered “an unequivocal rebuttal of the argument” that Ford uses his personal phone for government business.
Paul Champ, who represented Dr. Fallis in the appeal, said the premier had a duty to separate his personal and professional calls. He said allowing him to “shield” government calls by using his personal phone “frustrates the very purpose of freedom of information laws.”
Fallis had requested calls from Ford’s personal phone after alleging the premier had called the hospital where he worked about his criticism of the government.
The doctor, similarly to Global News, filed freedom of information requests which showed Ford had not used his government cellphone for months at a time. A request for the premier’s personal phone, which he often makes public, was denied.
“There were no calls on it whatsoever” over three months, Champ told the court. He said the months of empty call logs showed it was not “a little bit of use” from the premier on his personal phone.
Champ argued the decision in front of the court was not over which calls should be subject to release from the premier’s personal cellphone. Instead, he said the question was just whether or not government officials should be able to verify what official calls, if any, had taken place.
Concerns about releasing certain calls were hypothetical and premature, he suggested.
Regardless of how onerous a task sorting his calls might be, Champ said the premier had brought about the situation by carelessly mixing the two. He suggested the appeal and its questions would have been avoided if the premier had maintained an active government and personal device.
“The premier is not separating out his business,” Champ said, pointing to months of empty government call records. He said it was “not a leap of logic” to argue that, therefore, his personal phone was being used for official business.
Champ said Ford “chose to use his personal phone” for all facets of his communication, either “deliberately or recklessly.”
Ford “needs to learn to separate his records,” the lawyer argued. “It should be incumbent on public officials — even premiers shouldn’t get a pass.”
The three-judge panel reserved its decision.
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