The Ontario Court of Appeal then reviewed the decision of the divisional court. Appeal judges applied the “reasonableness” standard to assess the IPC’s decision. Ultimately, they supported the dissenting divisional court judge, who held that the IPC arbitrator’s decision was reasonable and deserved deference. The appeals court found that the IPC properly followed the Supreme Court’s guidance on interpreting the standard of proof for disclosure under FIPPA. The arbitrator used the “reasonable expectation of probable harm” standard, requiring proof beyond speculation but not necessarily to the level of certainty.

The appeals court also rejected the LCBO’s claim that the IPC arbitrator overlooked key evidence. They noted that while the arbitrator did not cite every piece of evidence, her reasoning showed a clear, contextual understanding of FIPPA’s privacy requirements and adequately addressed the LCBO’s claims.

The LCBO also argued that recent changes to the province’s liquor licensing laws, specifically the Liquor Licensing and Control Act of 2019, strengthened their case for withholding the information. However, the Court of Appeal held that these legislative changes were not brought to the judge’s attention and as such it would be inappropriate to fault her for not taking them into account.

The Court of Appeal concluded that the IPC arbitrator’s decision was reasonable and reinstated the original order to release the requested records.