Case Report – Case about filing “unofficial transcript” of administrative tribunal hearing to proceed at BCCA

On August 10th, the British Columbia Court of Appeal granted leave to appeal a decision that permitted a judicial review applicant to file a self-produced transcript of a British Columbia Human Rights Tribunal hearing.

The applicant first asked the Tribunal to produce an official transcript and was denied. It then took recordings and produced its own transcript with the Tribunal’s consent pursuant to a provision in the Tribunal rules that specifies that such a recording, “is not part of the official record of the tribunal’s proceedings.”

The applicant lost on the merits and brought an application for judicial review. It alleged that the Tribunal breached procedural fairness by declining to record the hearing itself and also raised bias and “unreasonable findings of fact not supported by the evidence” as grounds for review. The applicant filed its “unofficial transcript” and the respondent was unsuccessful on its motion to strike.

In granting leave to appeal, the Court said:

Whether this development accords with the complex framework of modern administrative law in British Columbia seems to be a question that should be fully argued and canvassed. If leave were to be denied and the judicial review were to proceed, the issue could become lost in the ‘factual matrix’ of the case and the human rights and labour law communities would be left in doubt on this important evidentiary point. As it is, the hearing of the substantive issue before the court below has been adjourned a this appeal could be heard without delay.

SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2010 BCCA 371 (CanLII).

Case Report – Div. Court issues significant decision on Ontario FOI exclusions

On March 26th the Divisional Court issued a significant decision on the Information Privacy Commissioner/Ontario’s jurisdiction to oversee claims that records are excluded from public access.

The requester asked the Ministry of the Attorney-General for access to records concerning the handling and progress of a high-profile prosecution. The MAG claimed the records requested were excluded by section 65(5.2) of FIPPA, which states, “This Act does not apply to records relating to a prosecution if all proceedings in respect of the prosecution have not been completed.”

The IPC routinely asks for the records subject to both exclusion and exemption claims, though this practice may be in some flux with respect records claimed to be subject to solicitor-client privilege since the Supreme Court of Canada’s Blood Tribe decision. In this case, when the MAG did not produce records voluntarily, the IPC ordered it to: (1) produce responsive records except those “clearly” subject to a solicitor-client privilege claim; (2) make exemption claims in the alternative to its exclusion claim; (3) prepare and produce an index of records; and (4) provide an affidavit in support of solicitor-client privilege claims.

Though the order was an interim order, the Court decided to hear the MAG application for judicial review. It held that the IPC erred in interpreting the scope of 65(5.2) and made an unreasonable order.

The section 65(5.2) decision is particularly significant given the Court’s finding that IPC erred in reading the words “relating to” as requiring a “substantial connection.” It said:

The meaning of the statutory words “relating to” is clear when the words are read in their grammatical and ordinary sense. There is no need to incorporate complex requirements for its application, which are inconsistent with the plain unambiguous meaning of the words of the statute.

The Adjudicator’s interpretation of the phrase “relating to” is also discordant with the intention of the Legislature. There are no pragmatic or policy reasons to impute a substantial connection requirement and depart from reading the words in their grammatical and ordinary sense in the context of the Act.

The IPC also applies the substantial connection test in adjudicating the employment records and teaching and research records exclusions. Though the language of these exclusions is slightly different than the language of section 65(5.2), the Court’s reasoning casts doubt on the use of the substantial connection test across-the-board.

The Court did not make a finding on whether IPC has the power to order the production of records that are claimed to be excluded nor did it opine on the scope of any such jurisdiction. It simply held that the IPC’s order was unreasonable because it would interfere with the interests the section 65(5.2) exclusion was intended to protect. Its disposition, however, suggests that looking at records claimed to be excluded is not necessary. Rather than send the matter back to the IPC, the Court simply declared that the request was for excluded records and could be brought back on when the underlying prosecution is complete. It did so on the face of the request.

Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII).