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).

Case Report – B.C. Court strikes privacy breach claim brought against raiding union

On November 23rd, the British Columbia Supreme Court issued a judgment striking out a privacy breach claim brought by an incumbent union against another union engaged in a so-called membership raid.

The incumbent (the HEU) argued that the raiding union (the BCNU) breached the British Columbia Privacy Act and the British Columbia Personal Information Protection Act by misusing personal information collected from its members in executing a “high pressure campaign.” The BCNU moved to strike the claim. It argued (1) the HEU had no standing to sue on behalf of its members (whether named or not); and (2) PIPA does not support a civil cause of action.

The Court agreed with both arguments. It concluded that both the Privacy Act and PIPA grant an individual right of privacy that cannot be asserted by a union on behalf of its members: “This is a radical defect; the plaintiffs have no entitlement to bring an action based on a violation of another person’s privacy.” On whether PIPA supports a civil cause of action, it said:

PIPA provides an adequate administrative scheme. I find support for this in the provisions of PIPA generally and specifically in s. 57. Section 57 clearly shows that the Legislature considered the issue of civil claims; it only included a right for an individual to advance a claim against an organization for damages after the commissioner has made an order. This has not occurred here.

The Court also struck claims based on fraudulent misrepresentation and deceit, leaving the HEU action to proceed on the basis of interference with contractual and economic relations.

Facilities Subsector Bargaining Association v. British Columbia Nurses’ Union, 2009 BCSC 1562 (CanLII).