Alberta CA deals with FOI standing issue, settlement privilege and more

The Court of Appeal of Alberta issued a decision on July 16th that dealt with a significant FOI standing issue among other issues relevant to FOI practitioners.

The Court quashed the Alberta OIPC’s appeal of a lower court decision to quash an order by which the OIPC compelled the Minister of the Environment to disclose a remediation agreement it entered into with Imperial Oil. It also, in obiter, affirmed the lower court’s decision.

The Court quashed the appeal based on a finding that the OIPC had no standing. Alberta case law establishes that a statutory tribunal whose own decision has been quashed on judicial review cannot appeal from that order unless its own jurisdiction is in question. The Court applied this to the OIPC despite the OIPC’s arguments about the unique role of an FOI adjudicator.

In addressing whether the remediation agreement was accessible to the public, the Court held that the agreement was subject to settlement privilege and that the OIPC had erred in finding that settlement privilege does not apply to final agreements. The application of settlement privilege to final agreements gives potentially wide protection to agreements between public institutions and outside parties and is now supported by the the Supreme Court of Canada based on its June 2013 decision in Sable Offshore Energy Inc. v Ameron International Corp.

The Court also interpreted a requirement common to third-party harms exemptions in Canadian FOI statutes that demands information “of the third-party” to qualify. It said:

The exception does not necessarily require ownership in the strict sense; the private party supplying the information would not have to prove that it had a patent or copyright on the information. If the private entity took scientific, financial, or commercial information that was in the public realm, and then applied that information to its specific business, property, and affairs, the resulting data would still be “of the third party”. In other words, it is the information as applied to the business of the third party that would be “of the third party”, not the background scientific or economic principles underlining that information.

The Court held that the OIPC erred in finding that expert reports prepared for Imperial Oil and appended to the agreements did not contain information “of Imperial Oil” because the reports “were developed at the request of the Public Body or in consultation with it.”

Imperial Oil Limited v Alberta (Information and Privacy Commissioner), 2014 ABCA 231 (CanLII).

BC arbitrators embrace openness in face of broad request for grievor annonymity

Two British Columbia arbitrators have held that, despite British Columbia PIPA, shielding a grievor’s identity from the public is an exception to the general rule of openness.

Both cases involved discharge grievances brought by the United Food and Commercial Workers, Local 1518. The Local argued that grievor identities should not be revealed in an arbitration award without individual consent. It based its argument on the consent requirement in British Columbia PIPA and, alternatively, by arguing that anonymity should be the default in a proper exercise of arbitral discretion.

Arbitrator Sanderson issued a brief award on July 22nd. He concluded that the shielding of a greivor’s identity is a matter within an arbitrator’s discretion notwithstanding British Columbia PIPA. Arbitrator Sanderson also held that “the open court principle should prevail in decisions of labour arbitrators” though an anonymity order may be granted as justified based on proof of an “unreasonable impact” on personal privacy.

Arbitrator Lanyon issued an award on October 28th. Like Arbitrator Sanderson, Arbitrator Lanyon held that identification of a grievor is the norm, with a discretion to grant anonymity as otherwise as justified. Arbitrator Lanyon also added:

that there is a particular pubic interest in disclosing the identity of those charged with serious disciplinary offences;
that an aribtrator’s balancing should be principled, recognizing “the importance of privacy and the difficulties that may arise as a result of publication on the awards on the internet”; and
that arbitrators should be open to “lesser protections” in addressing the potential harms associated with publication, at the very least by refraining from publishing sensitive identifying information such as birth dates and social insurance numbers.

Neither arbitrator’s means of resolving the consent requirement in British Columbia PIPA is particularly clear, though both view the issue as governed by arbitral discretion. In applying this discretion, both arbitrators dismissed the Local’s request because it was made as a matter of right and not on any fact-based justification. The Lanyon award indicates that the Local had plans to appeal any award “not in accord with its views of this matter.”

Husband Food Ventures Ltd v United Food and Commercial Workers International Union, Local 1518 (unreported, 22 July 2013, Sanderson).

Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA, Lanyon).

[Note also that most recent Advocate’s Quarterly (vol 42, 2013) has an article entitled The Protection of Privacy Interests in Administrative Adjudication in Ontario by Chris Berzins, who has written often on this topic. Chris’s most recent article calls on the Ontario/IPC to give better guidance to Ontario administrative bodies on how to to address the privacy issues related to the publication of decisions as well as other privacy issues related to their adjudicative proceedings.]

Div Ct affirms decision to give access to government contract

On December 2nd the Divisional Court affirmed an IPC/Ontario decision that granted access to a municipal contract. The decision is an administrative law decision, but the Court does summarize the principles that govern access to government contracts as follows:

absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not “supplied” by the third party under section 10(1) of the Act [and therefore potentially subject to exemption]
the inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure
the immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs

Under these principles government contracts are very accessible, so much so that the IPC has suggested that Ontario access legislation be amended so contract requests give rise to fewer disputes.

On administrative law, the Court applied Newfoundland Nurses and held that the IPC’s “conclusory” reasons were not sufficient grounds for review in light of the record.

Miller Transit Limited v Information and Privacy Commissioner of Ontario, 2013 ONSC 7139 (CanLII).

[Here’s another contract case from November 28th, also written by Justice Himel but too fact specific to warrant a post. Partial access appeal decision affirmed: HKSC Developments LP v Infrastructure Ontario and Information and Privacy Commissioner of Ontario, 2013 ONSC 6776 (CanLII).]

FC confirms ATIA institutions can make only one access decision

On July 11th, the Federal Court held that an Access to Information Act institution’s access decision was null and void because it had made a prior access decision in response to the same request. It confirmed that institutions can only make one decision, though they may make supplementary disclosure based on an Information Commissioner recommendation (pursuant to section 29) and change their position in responding to a section 44 application to Federal Court.

Porter Airlines Inc v Canada (Attorney General), 2013 FC 780 (CanLII).

SCC alcohol testing decision invites peace in the valley by giving a boost to arbitral precedent

The Supreme Court of Canada’s June 14th decision in Irving Oil represents a remarkable elevation of arbitral precedent to near binding law, contributing clarity on an issue that has been heavily litigated by employers and unions for years.

The ratio, at paragraph 31, is that an employer with a safety-sensitive workplace needs proof of “enhanced safety risks” (such as a workplace substance abuse problem) to implement universal random substance testing. Although the judgment was split, both majority and minority agree that this is the evidentiary burden endorsed in “remarkably consistent arbitral jurisprudence.”

The Supreme Court of Canada wanted to deliver “peace in the valley” without causing too much upset in its established deference-favouring principles of judicial review.

Upset is exactly what the Court of Appeal of New Brunswick had created by issuing an unprecedented standard of review decision in its handling of the case. The lower court applied the correctness standard of review because labour arbitrators had not been able to reach a consensus. Justice Robertson said:

In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned.

In response, the Supreme Court of Canada held that the reasonableness standard applies to the interpretation of a collective agreement based on its established jurisprudence. It did not mention Justice Robertson’s novel approach to addressing an inconsistency in arbitral jurisprudence nor did it explain how it reached the opposite conclusion about the existence of arbitral consensus. Did it find the jurisprudence to be consistent as step one in its aim to promote clarity in the law?

Step two involves the Court’s treatment of arbitral precedent in assessing the reasonableness of Arbitrator Veniot’s decision. The Court unanimously held that the reasonableness of a labour arbitrator’s decision will be judged in light of established arbitral consensus.The majority felt that Arbitrator Veniot’s decision was consistent with the consensus, which supported its reasonableness. The minority felt that Arbitrator Veniot’s decision was inconsistent with the consensus, an error given he did not provide a rationale for his departure: “In the absence of a reasonable explanation for its novel test, the board must be taken as having misapplied the existing test, which in the circumstances of this case rendered its decision unreasonable.” This treatment of arbitral precedent as so central is novel and significant, though both the majority and minority specified that precedent was particularly important “in this case,” presumably given the deemed “remarkably consistent arbitral jurisprudence.”

Arbitrators are technically free to reason their way around the ratio of Irving Oil, but why would they? For practical purposes, the Court has delivered near binding precedent.

Of course, the non-unionized employees are much more vulnerable, many protected only by anti-discrimination legislation and a theory for finding discrimination espoused in the Court of Appeal for Ontario’s Entrop decision that is becoming less and less consistent with the SCC-defined meaning of discrimination. In light of the Supreme Court of Canada’s gymnastics in Irving Oil, is there any doubt that the courts will find a path, however tortured, that leaves non-union employees with the same protection?

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 (CanLII).

Sask CA affirms union right to observe job interviews despite privacy claim

On January 31st, the Court of Appeal for Saskatchewan affirmed a union’s right to observe job interviews with external candidates notwithstanding the employer’s claim that the observation right should be “read down” to protect individual privacy.

The case involves a collective agreement provision that gives a union a right to observe job interviews “for which any [bargaining unit member] has applied.” At arbitration, the employer argued that the union’s observation right extinguishes after all bargaining unit members have been eliminated from a competition. It raised the privacy rights of external applicants in making this argument.

The arbitration was a disaster for the employer. The arbitrator held that the union’s right to observe was unlimited. The arbitrator also suggested that the Saskatchewan Local Authority Freedom of Information and Protection of Privacy Act required the employer to notify external candidates of the union’s observation rights and obtain their consent. The employer managed to have the latter finding overturned on judicial review by successfully arguing that the disclosure to the union was for a “consistent purpose.” It did not upset the arbitrator’s interpretation of the collective agreement provision, however, so appealed.

The Court of Appeal affirmed the arbitrator’s interpretation of the collective agreement based on the reasonableness standard of review. It also suggested that the employer’s privacy argument was disingenuous, questioning how the employer could argue that observation by the union was okay so long as bargaining unit members were in the competition but offensive to external candidate privacy interests if they were not.

Saskatchewan Institute of Applied Science and Technology v Saskatchewan Government, 2013 SKCA 8 (CanLII).

Judicial review not the regular means to challenge PIPEDA investigation reports

On January 15th the Federal Court dismissed two judicial review applications brought by a self represented applicant who took issue with two OPC investigation findings made under under PIPEDA. The Court held that an application under section 14 of PIPEDA, which invites a de novo hearing, was an adequate alternative remedy to judicial review:

In conclusion, I find that there is an adequate alternative remedy provided by section 14 of the PIPEDA that would have been the appropriate recourse to deal with all matters raised concerning the complaint, the OPC reports and the investigation that followed. When comparing the recourse provided by section 14 of the PIPEDA with the possibilities offered by judicial review, which is discretionary and extraordinary in nature and limited to the review of the reports and the documentation contained in the certified record, I find that the former is the appropriate recourse as the intent of the legislator to this effect is clear. I will not therefore exercise my discretion to judicially review the reports of the Privacy Commissioner, and I will dismiss both applications for judicial review.

In making this finding the Court suggested that a judicial review application to allege bias or that the OPC committed some other procedural injustice might be amenable to judicial review.

Kniss v Canada (Privacy Commissioner), 2013 FCC 31.

Judicial review petitition moot after requester loses interest in obtaining access to record

On January 8th, the Supreme Court of British Columbia dismissed a British Columbia Lottery Corporation petition for judicial review because the requester was no longer interested in receiving a copy of the policies and procedures manual at issue. It rejected the BCLC’s argument that the petition should be heard because of the prejudice it would face in dealing with future requests for the same record, stating “If, in the future, some other party seeks production of the Manual, the Commissioner will have to decide the matter based on the law and evidence as it then exists.”

British Columbia Lottery Corporation v Dyson, 2013 BCSC 11 (CanLII).

BC access decision quashed for improper consideration of expert evidence

On January 8th, the Supreme Court of British Columbia quashed an access decision because the Commissioner admitted opinion evidence, but did not consider it to be expert evidence.

The Court differed with the Commissioner in finding that the opinion was “necessary” to resolve an issue about whether the disclosure of sales data, by postal code, could reasonably be expected to cause economic harm to the British Columbia Lottery Corporation. The Commissioner held that the opinion was unnecessary because it went to the very question before her. The Court held that the opinion was necessary because it went to constituent facts such as whether the data had monetary value and could provide grey market competitors with a competitive advantage. Given the opinion met the criteria for admissibility, the Court held the Commissioner erred in law by failing to consider it as expert evidence. It said, “Opinion evidence is only admissible as expert evidence.”

British Columbia Lottery Corporation v Skelton, 2013 BCSC 12 (CanLII).

Ministry of Labour breaches FIPPA in administering an OLRB production order

On November 9th the Information and Privacy Commissioner/Ontario held that the Ministry of Labour breached FIPPA’s safeguarding duty after it investigated the administration of a production order made by the Ontario Labour Relations Board.

The directors of a bankrupt employer appealed an order to pay wages and vacation pay to 309 former employees to the OLRB. The directors and the prosecutor agreed to a consent order that required production of relevant financial information about the 309 employees, and the prosecutor agreed to one or more participating employees that all 309 employees (as parties to the proceeding) would receive the production. The OLRB mailed an unencrypted CD-ROM containing the 309 employees’ names, social insurance numbers, total annual remuneration, period of earnings and address information. After complaints were lodged by some recipients the OLRB attempted to recall the mailing, but in the end did not recover 137 of the CD-ROMs.

The production order itself was the real source of difficulty here, but the IPC rightly acknowledged it had no jurisdiction to scrutinize the OLRB’s exercise of procedural powers. Instead, the IPC looked at the adequacy of the OLRB’s and Ministry’s security practices, recommending first that the OLRB take the added precaution of making clear to parties that they can request orders to restrict the manner and scope of disclosure. The IPC also held that the Ministry ought to have used a bonded courier service, ought to have considered encryption and ought to have attempted to confirm addresses.

Is this an adequate resolution? What can be done that respects tribunals’ independence but promotes better protection of privacy?

Ontario (Labour) (Re), 2012 CanLII 71576 (ON IPC).