PART III -- APPEAL

APPEAL

Right to appeal

39. (1) A person may appeal any decision of a head under this Act to the Commissioner if,

(a) the person has made a request for access to a record under subsection 17(1) ;

(b) the person has made a request for access to personal information under subsection 37(1) ;

(c) the person has made a request for correction of personal information under subsection 36(2) ; or

(d) the person is given notice of a request under subsection 21(1) .

Time for application

(2) An appeal under subsection (1) shall be made within thirty days after the notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

Notice of application for appeal

(3) Upon receiving a notice of appeal, the Commissioner shall inform the head of the institution concerned and any other affected person of the notice of appeal. [R.S.O. 1990, c.M.56, s.39.]

Mediator to try to effect settlement

40. The Commissioner may authorize a mediator to investigate the circumstances of any appeal and to try to effect a settlement of the matter under appeal. [R.S.O. 1990, c.M.56, s.40.]

Inquiry

41. (1) If a settlement is not effected under section 40 , the Commissioner shall conduct an inquiry to review the head's decision.

Procedure

(2) The Statutory Powers Procedure Act does not apply to an inquiry under subsection (1).

Inquiry in private

(3) The inquiry may be conducted in private.

Powers of Commissioner

(4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts I and II of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.

Record not retained by Commissioner

(5) The Commissioner shall not retain any information obtained from a record under subsection (4).

Examination on site

(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site.

Notice of entry

(7) Before entering any premises under subsection (4), the Commissioner shall notify the head of the institution occupying the premises of his or her purpose.

Examination under oath

(8) The Commissioner may summon and examine on oath any person who, in the Commissioner's opinion, may have information relating to the inquiry and, for that purpose, the Commissioner may administer an oath.

Evidence privileged

(9) Anything said or any information supplied or any document or thing produced by a person in the course of an inquiry by the Commissioner under this Act is privileged in the same manner as if the inquiry were a proceeding in a court.

Protection

(10) Except on the trial of a person for perjury in respect of his or her sworn testimony, no statement made or answer given by that or any other person in the course of an inquiry by the Commissioner is admissible in evidence in any court or any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Commissioner shall be given against any person.

Idem

(11) A person giving a statement or answer in the course of an inquiry before the Commissioner shall be informed by the Commissioner of his or her right to object to answer any question under section 5 of the Canada Evidence Act.

Prosecution

(12) No person is liable to prosecution for an offence against any Act, other than this Act, by reason of his or her compliance with a requirement of the Commissioner under this section.

Representations

(13) The person who requested access to the record, the head of the institution concerned and any affected party shall be given an opportunity to make representations to the Commissioner, but no person is entitled to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

Right to counsel

(14) The person who requested access to the record, the head of the institution concerned and any affected party may be represented by counsel or an agent. [R.S.O. 1990, c.M.56, s.41.]

Burden of proof

42. If a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head. [R.S.O. 1990, c.M.56, s.42.]

Order

43. (1) After all of the evidence for an inquiry has been received, the Commissioner shall make an order disposing of the issues raised by the appeal.

Idem

(2) If the Commissioner upholds a decision of a head that the head may refuse to disclose a record or a part of a record, the Commissioner shall not order the head to disclose the record or part.

Conditions

(3) The Commissioner's order may contain any conditions the Commissioner considers appropriate.

Notice of order

(4) The Commissioner shall give the appellant and the persons who received notice of the appeal under subsection 39(3) written notice of order. [R.S.O. 1990, c.M.56, s.43.]

Delegation

44. The Commissioner shall not delegate to a person other than an Assistant Commissioner his or her power to require a record referred to in section 8 to be produced and examined. [R.S.O. 1990, c. M.56, s. 44.]