Executive Summary: Key Legal and Evidentiary Issues

• Ex parte interim injunction sought to delay the coming into force of subsections 28(1) and 29(2) of Bill 97 and to prevent possible destruction of Premier Ford’s cellphone call log records.
• Central Charter issue was whether s. 2(b) freedom of expression includes a right of access to government records where that access is necessary for meaningful public debate on matters of public importance.
• Access to information principles under the Freedom of Information and Protection of Privacy Act intersected with new legislation designed to overturn an adjudicator’s ruling requiring disclosure of the Premier’s call logs.
• Evidentiary concern over alleged “irreparable harm” if records were destroyed was found speculative, given uncertainty about whether destruction would occur, whether the records held useful content, and the existence of archival and telecommunications safeguards.
• The court applied the RJR-MacDonald test for interlocutory injunctions and held there was no arguable case on the merits, no irreparable harm, and that the balance of convenience favoured allowing the duly enacted legislation to come into force.
• Procedural and public law considerations weighed against granting an injunction to restrain legislation not yet in force, reinforcing judicial reluctance to interfere prematurely with the legislative process.

Background and facts of the dispute
Duff Conacher and Democracy Watch brought an urgent motion in the Ontario Superior Court of Justice seeking an interim injunction on an ex parte basis. They asked the court to temporarily suspend the coming into force of subsections 28(1) and 29(2) in Schedule 7 of Bill 97, the Plan to Protect Ontario Act (Budget Measures), 2026, and to restrain the Lieutenant Governor in Council and the Attorney General of Ontario from taking any steps that would result in the destruction of certain government records. The records at the heart of the dispute were Premier Doug Ford’s cellphone call logs. Previously, on November 29, 2024, an adjudicator had ruled that the Premier’s cellphone call logs were in the “control of the Cabinet Office” and therefore subject to disclosure under Ontario’s Freedom of Information and Protection of Privacy Act (the Act). A judicial review to the Divisional Court was dismissed on December 29, 2025 in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), and an application for leave to appeal to the Ontario Court of Appeal remained outstanding. Against this backdrop, the government introduced Bill 97 on March 26, 2026. The Bill amended the Act in a way that would overturn the adjudicator’s ruling and carve out the Premier’s call log records from disclosure. By the time of the motion, Bill 97 had passed third reading and was awaiting royal assent, expected possibly the same evening, with the relevant provisions to come into force immediately once assented to.

Procedural posture and parties’ positions
The motion came before Justice J.A. Ramsay on extremely short notice. The notice of motion was received that afternoon; the Regional Senior Judge arranged for service on the Attorney General and a videoconference hearing at 5 p.m. Because of the compressed timeline, the Attorney General’s counsel was only able to respond part way through the hearing, and the judge treated the matter, in substance, as an ex parte motion. The moving parties had named the “Governor in Council of Ontario” as a party, which the judge noted was incorrect: the proper description is the Lieutenant Governor in Council, and in any event she is not properly named as a party to the proceeding. The court explained that the Attorney General or His Majesty the King in right of Ontario should be the primary respondent, and that the Premier should be separately represented if the applicants wished to compel production of cell records in his personal possession rather than those held institutionally by government. The moving parties sought an interim injunction of ten days’ duration to freeze the legislative change and to prevent any steps that might lead to the destruction of the call log records pending a constitutional challenge.

Legal framework and policy terms at issue
At the core of the applicants’ legal argument was s. 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. They asserted that s. 2(b) should be interpreted to include a derivative right of access to government documents where such access is necessary to enable meaningful public discussion on matters of public importance, including the conduct of government institutions. The applicants argued that if Bill 97 were allowed to come into force, the government would gain a legal basis to destroy the Premier’s call log records, thereby causing irreparable harm to Charter-protected expression and public debate about executive decision-making. The statutory regime in play included the Freedom of Information and Protection of Privacy Act, which governs access to government records, and Bill 97’s amendments that would effectively render the specific call log records exempt from disclosure. The court also referenced the Archives and Recordkeeping Act, 2006, which establishes protocols for the preservation and disposition of government records, suggesting that these frameworks reduce the risk of records simply vanishing. In considering the scope of any Charter-based access right, the judge applied the Supreme Court of Canada’s guidance from Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, a leading case on whether and when s. 2(b) requires access to information. That decision held that a claimant must show that denial of access effectively prevents meaningful public discussion on matters of public interest and that any prima facie right of access remains subject to countervailing considerations such as privileges or institutional functions incompatible with disclosure.

Application of the test for interim injunctions
Justice Ramsay applied the well-known three-part test for interlocutory injunctions from RJR-MacDonald Inc. v. Canada (Attorney General): the moving party must establish (1) a serious issue to be tried (or, in Ontario practice, an “arguable case”), (2) a risk of irreparable harm if the injunction is not granted, and (3) that the balance of convenience favours the order sought. On the first branch, the judge held that the applicants had not demonstrated an arguable case that the impugned provisions of Bill 97 were unconstitutional. While acknowledging the jurisprudence on Charter-protected access to information, the court emphasized that the Supreme Court in Criminal Lawyers’ Association had ultimately upheld a statutory exemption from disclosure of sensitive police materials in the context of police oversight. Given that precedent and the relatively thin Charter argument advanced at this urgent, preliminary stage, the judge rejected the notion that the court should presume the legislation invalid. He remarked that Canada had “not gone so far along the road to government by unelected judges” that courts would lightly assume legislative invalidity on such a modest showing and concluded there was no arguable case for the moving parties.

Assessment of irreparable harm and evidentiary concerns
On irreparable harm, the court found the applicants’ position speculative on multiple fronts. First, it was uncertain and conjectural to suggest that the relevant records would in fact be destroyed if Bill 97 took effect, particularly in light of established records management protocols under the Archives and Recordkeeping Act, 2006. Second, the court noted that it was equally speculative to assume that the call log records would contain material of such significance that their loss would cause genuine harm to Charter interests or the public. Third, the judge observed that the cellphone service provider might retain copies of the call logs, further undermining the claim that any governmental action would irretrievably erase the information. Together, these evidentiary weaknesses led the court to find that no true irreparable harm had been established, as required to justify the extraordinary remedy of an interim injunction against pending legislation.

Balance of convenience and deference to the legislative process
On the final branch of the RJR-MacDonald test, the balance of convenience, Justice Ramsay held that the scales clearly tipped in favour of the government. The legislature is presumed to act in good faith, and courts are traditionally reluctant to grant interim injunctions restraining the operation of statutes, especially where the impugned provisions have not yet even come into force. The judge stressed that routinely preventing laws from coming into force pending full hearings would impair the sovereign legislature’s ability to govern effectively. In this case, the motion was seen as “ill-conceived, irregular and unnecessary,” and brought without genuine urgency. The court concluded that, rather than seeking a rushed ex parte order, the applicants should have proceeded on reasonable notice so a full and proper response from the Attorney General could be prepared and argued.

Outcome and costs consequences
The court ultimately dismissed the motion for an interim injunction in its entirety. It found no arguable constitutional case, no irreparable harm, and a balance of convenience that favoured allowing Bill 97 to proceed through the ordinary legislative process and, once assented to, to come into force as enacted. In light of the procedural shortcomings and lack of urgency, the judge ordered that the moving parties, Duff Conacher and Democracy Watch, pay fixed costs to the Attorney General of Ontario. The successful party was therefore the Attorney General/government side, and the court set the total monetary award at $1,500 in costs, payable within 31 days, with no additional damages or monetary relief granted.