April 28, 2015
By Eric Andrew-Gee
The head of Ontario’s school bus association says his Toronto members should disclose their collision records, a day after the Star published a story showing that the numbers were being kept secret.
“I can’t see a reason why those numbers wouldn’t be released,” said Les Cross, the organization’s president. “I don’t see there’s any harm in it.”
Data obtained by the Star shows that Toronto school buses have been in more than 1,500 collisions since 2010, but the student transport consortium refuses to say how many crashes each of its five contractors have been involved in.
A chart released by the consortium shows that one of the company’s divisions has considerably more collisions relative to the size of its fleet than any other. The name of that company remains a secret, because Toronto’s public and Catholic school boards say privacy legislation prevents them from disclosing it.
But Ontario’s privacy commissioner and one of Canada’s most prominent privacy lawyers say public interest can override confidentiality in cases like this.
Cross, president of the Ontario School Bus Association, said the crash data should be released publicly.
“If that information is public, it would demonstrate how safe the industry really is,” he said. “I think as an industry we want to be safer; that’s our whole goal, that’s our whole challenge.”
Cross added that he intends to raise the issue of disclosure with his members.
“It warrants a conversation with our membership for sure,” he said.
“To be honest, this is first time anybody’s asked me about collisions statistics.”
On the whole, Toronto school buses have a relatively strong safety record. The city’s student transport fleet travelled about 70 million kilometres in the five years between 2009 and 2014. During that time, the buses were involved in 1,557 collisions. That’s about two-thirds as many collisions per kilometre as TTC buses and streetcars.
Toronto’s public and Catholic school boards have argued that privacy legislation prevents them from disclosing the safety records of school bus carriers. They say the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) — the same law journalists often use to uncover government secrets — bars public bodies from releasing information about third-party contractors.
But David Fraser, one of Canada’s leading access and privacy lawyers, called the boards’ justification “flimsy.”
Fraser said the third-party exemption is generally used when there’s a risk of revealing a trade secret or other proprietary information, and safety records do not normally fall into that category. He added that the law includes a provision that allows public bodies to disclose contractor information if doing so would be in the public interest.
“I find it hard to wrap my head around how these records could be kept secret,” Fraser said. “I can imagine a scenario in which the public wants to know whether the public institution is getting value for money and whether children are being safely conducted to schools.”
John Yan, spokesperson for the Toronto Catholic District School Board, said his board was sticking by its interpretation.
“Lawyers will give you their opinion,” he said. “But my statement is that when it comes to compliance with MFIPPA we always exercise an abundance of caution. And at the end of the day, the only opinion that matters is the final decision of the privacy commissioner.”
The office of the provincial Information and Privacy Commissioner released a statement Tuesday suggesting that the school boards could release the contractor collision records, but withholding judgment on the specifics of the case.
“Ontario’s access and privacy legislation allows institutions to withhold third-party information in limited circumstances. It is not clear if that is the case in this request,” said commission spokesperson Trell Huether in an email. “However, even if the information may be withheld, an institution may determine that the public interest takes precedence and release the information.”