Written By: Patrick Brown and Ryan Marinacci, Law Student
YOU DON’T HAVE THE NAME OF THE PERSON WHO DOORED YOU? HERE IS SOME HELP
In the past, the Toronto Police Services Board refused to release the identities of drivers who door cyclists by stating that it is considered an “incident” as opposed to a reportable motor vehicle accident and by relying on the personal information exemption under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990.
WHY THIS MATTERS
When a cyclist is doored, failure to obtain the name and address of the driver can severely interfere with the cyclist’s ability to seek legal redress such as getting insurance benefits, compensation for their damaged bike, or being able to pursue a lawsuit. For more on your cycling rights, visit Bikelaw Ontario and Cycle Toronto.
RECENT DECISION OPENS DOOR TO GET NAME AND ADDRESS
The Ontario Information and Privacy Commissioner recently ordered the Toronto Police Services Board to disclose the name and address of a cyclist who struck a pedestrian in Toronto (Police Services Board) (Re), 2020 CanLII 28073 (ON IPC).
For the purpose of releasing the names and addresses of the individuals involved, there is no principled reason to distinguish between a driver who doors a cyclist and a cyclist who hits a pedestrian. Going forward, this decision should serve as a precedent for requiring the Police to release the identity of a driver who doors a cyclist.
So what to do? If you are doored and you do not have the name of the person who doored you, prepare and send in a Freedom of Information Request (attached here):
- Print, sign and date the letter, and insert the date of the dooring incident and any other identifying information you may have,
- Print and complete the attached Access or Correction Request Form,
- Print and attach the decision,
- Pay the required $5.00 fee,
- Wait for a response.
For those who want to know the basis for the decision please feel free to continue below.
The adjudicator had to determine whether the Police could refuse to disclose the identity of the cyclist under s. 38(2) on the basis that doing so would constitute an unjustified invasion of personal privacy. This determination was made by turning to the criteria under sections 14(2) and (3). Relevant here was s. 14(2)(d), the adjudicator found, which asks whether “the personal information is relevant to a fair determination of rights affecting the person who made the request.”
In order to engage s. 14(d), the appellant had to establish that,
- the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds;
- the right is related to a proceeding which is either existing or contemplated, not one which has already been completed;
- the personal information to which the appellant seeks access has some bearing on or is significant to the determination of the right in question; and
- the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.
On the facts, these criteria were easily met. The adjudicator found that the cyclist’s name and address were relevant to a fair determination of the appellant’s rights, and stated,
[51] …I am satisfied that he has met the four-part test in section 14(2)(d) because:
- his right to sue is drawn from common law;
- the right is related to a contemplated civil claim for damages;
- the personal information to which he seeks access (i.e. the affected party’s name and contact information for service) has a direct bearing on a determination of his right to receive damages because he needs to identify the affected party in order to bring a successful claim; and
- he needs the affected party’s name to prepare for the proceeding by serving him with his claim.
This factor heavily favoured disclosure and outweighed two concerns that militated against disclosure. First, under s. 14(2)(h), the personal information had been supplied in confidence because the cyclist had voluntarily given a police statement. Second, under s. 14(3)(b), the information had been obtained as part of an investigation into a possible violation of the law, and it did not matter that no charges were laid.
However, the appellant countered that the Act should not be used in a way that prevented individuals from exercising their legal rights. Without the ability to obtain the identity of the proposed defendant, non-disclosure would effectively remove the appellant’s right to sue for the injuries sustained in the incident.
The adjudicator agreed, and stated,
[58] I agree that the Act should not be used in a way that prevents individuals from exercising their legal rights, and find that the non-disclosure of the affected party’s name and address unduly impairs the appellant’s ability to pursue his right to seek damages.
In the result, the adjudicator ordered the Toronto Police to disclose the name and address of the cyclist.
