Adeleye-Olusae v. Manitoba (Minister of Labour and Immigration), (2011) 266 Man.R.(2d) 164 (QB)

• Judge: Abra, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: Wednesday June 29, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 266 Man.R.(2d) 164 (QB);2011 MBQB 146

Adeleye-Olusae v. Man. (2011), 266 Man.R.(2d) 164 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JL.029

In The Matter Of: An Application Under Subsection 67(1) Of The Freedom Of Information And Protection Of Privacy Act, S.M. 1997, c. 50 (C.C.S.M., c. F-175)

Adelana Adeleye-Olusae (applicant) v. The Minister of Labour and Immigration of Manitoba (respondent)

(CI 08-01-59380; 2011 MBQB 146)

Indexed As: Adeleye-Olusae v. Manitoba (Minister of Labour and Immigration)

Manitoba Court of Queen's Bench

Winnipeg Centre

Abra, J.

June 29, 2011.

Summary:

Pursuant to s. 67(1) of the Freedom of Information and Protection of Privacy Act, Adeleye-Olusae, a member of the Nigerian Association of Manitoba Inc. (NAMI), appealed a decision of the Department of Labour and Immigration of Manitoba, not to provide access to a letter or petition concerning the NAMI's community Stream Program under the Manitoba Provincial Nominee Program.

The Manitoba Court of Queen's Bench ordered that the Department provide access to Adeleye-Olusae to part of the record. Before such disclosure, the names of any third parties in the record, who had no direct interest in the application, were to be edited from the record in order to protect their privacy.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - [See first Crown - Topic 7206].

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The applicant, a member of the Nigerian Association of Manitoba Inc. (NAMI), appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition (the record) - The record contained the names of third parties, formerly affiliated with NAMI, including the names and addresses of the signatories - After the Department's initial refusal, the applicant appealed to the Ombudsman - Both the Department and the Ombudsman relied on exceptions to disclosure in s. 17 of the Freedom of Information and Privacy Protection Act (FIPPA) - The Manitoba Court of Queen's Bench held that none of the exceptions were applicable - Both the Department and the Ombudsman either misinterpreted the definition of "personal information" or ignored that the definition specifically excluded personal views or opinions of the signatories about people such as the applicant - From the court's reading of the record, the contents were the personal views and opinions of the signatories about other people including the applicant - "If a person provides information that is negative, derogatory or defamatory about another person, the person who supplies the information should not be protected by legislation such as FIPPA" - See paragraphs 64 to 69.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The applicant, a member of the Nigerian Association of Manitoba Inc., appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition (the record) - After the Department's initial refusal, the applicant appealed to the Ombudsman - Both the Department and the Ombudsman relied on exceptions to disclosure in s. 17 of the Freedom of Information and Privacy Protection Act (FIPPA) - The Manitoba Court of Queen's Bench held that none of the exceptions were applicable - In any event, the court would have overruled the Department's refusal for access to the entire record - Section 12 of the FIPPA authorized a public body to give access to part of a record - The Department could have edited parts of the record to delete the names of the third parties in order to protect their rights of privacy - The applicant was entitled to know what the record said about him - See paragraphs 71 to 74.

Crown - Topic 7208.1

Examination of public documents - Freedom of information - Bars - Advice, proposals, analyses or policy options developed for government or public body - The applicant, a member of the Nigerian Association of Manitoba Inc. (NAMI), appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition (the record) - In the refusal letter, the Department wrote that the record "provided a point of view" or "advice" related to immigration in the Nigerian community and NAMI operations - A ground for refusing access was based on s. 23(1)(a) of the Freedom of Information and Privacy Protection Act, namely, that a public body might refuse to disclose information if disclosure could reasonably be expected to reveal advice to a public body - The Manitoba Court of Queen's Bench held there was no evidence to support the refusal of access based on s. 23(1)(a) - That section did not authorize or permit a government body to refuse to disclose unsolicited opinions or advice from people outside the government, "especially when the contents of the document provide negative opinions about other people" - The Department's reliance on s. 23(1)(a) implicitly contravened the spirit and legislated purpose of the Act - See paragraphs 40 to 44.

Crown - Topic 7209.1

Examination of public documents - Freedom of information - Bars - Information obtained in lawful investigations (incl. crimes and national security) - The applicant, a member of the Nigerian Association of Manitoba Inc., appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition (the record) - The Department's reasons were based on the Freedom of Information and Protection of Privacy Act (FIPPA) - With respect to s. 25(1)(n), the Department had information that there were several civil and human rights proceedings involving some of the individuals named in the record, and that the usual procedures for disclosure and discovery should govern that information - The Manitoba Court of Queen's Bench rejected that argument - There was no evidence that the civil or human rights proceedings related to the same subject matter as the contents of the record - If there was a connection, the contents of the record could be very relevant to such proceedings - The court concluded that the Department was looking for any excuse, "including far-fetched ones", not to disclose any of the record to the applicant - The Department was not being compliant with the spirit and purpose of the FIPPA - See paragraphs 58 to 63.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - The applicant appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition (the record) - The Department relied on s. 24(a) and/or s. 24(c) of the Freedom of Information and Protection of Privacy Act, namely, disclosure could "reasonably be expected to threaten or harm the mental or physical health or the safety of another person", and disclosure could "reasonably be expected to threaten public safety" - The Manitoba Court of Queen's Bench rejected those arguments - In order to rely on s. 24(a) and/or s. 24(c), "the Department must demonstrate that the reason for resisting disclosure is not a frivolous or exaggerated expectation of endangerment to safety" - On the court's reading of the record, at most there were some unsubstantiated hearsay allegations of threats - Further, the Department did not do any investigation to determine the nature of the potential threat or harm - With appropriate editing, the identity of the recipient of the alleged threats could be protected - The unedited portions would still provide the applicant with information to which he was entitled - See paragraphs 45 to 53.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The applicant appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition in the Department's possession - The Manitoba Court of Queen's Bench stated that the two standards of review, correctness and reasonableness, did not apply to the appeal because of s. 69 of the Freedom of Information and Protection of Privacy Act (FIPPA) - The court interpreted s. 69 to mean that the appeal was a hearing de novo - "Based on s. 69 of FIPPA, I am satisfied that the nature of this appeal is different from many other applications to the court for judicial review of decisions made by administrative bodies, including public bodies" - See paragraphs 27 to 31.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - The applicant appealed a refusal by the Department of Labour and Immigration (Man.) to provide access to a letter or petition in the Department's possession, pursuant to s. 67(1) of the Freedom of Information and Protection of Privacy Act of Manitoba - The record contained the names of numerous third parties, including the names and addresses of the signatories - The Manitoba Court of Queen's Bench was satisfied therefore that, pursuant to s. 70(2), the burden of proof in the appeal was on the applicant - Based on the purposes of the Act, set out in s. 2, the applicant had a right to the record unless any of the statutory exceptions to the right of access applied - See paragraphs 33 to 35.

Crown - Topic 7292

Examination of public documents - Freedom of information - Practice - Appeals (incl. notice) - [See Crown - Topic 7246].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Mount Royal University v. Carter et al. (2011), 507 A.R. 190; 2011 ABQB 28, refd to. [para. 29].

Kattenburg v. Manitoba (Minister of Industry, Trade and Tourism) (1999), 143 Man.R.(2d) 42 (Q.B.), refd to. [para. 35].

Jaslowski v. Manitoba (Minister of Justice) (1999), 140 Man.R.(2d) 112 (Q.B.), refd to. [para. 39].

Ontario (Minister of Labour) et al. v. Big Canoe (1999), 127 O.A.C. 173; 46 O.R.(3d) 395 (C.A.), refd to. [para. 47].

French v. Dalhousie Univ. (2003), 212 N.S.R.(2d) 215; 665 A.P.R. 215; 2003 NSCA 16, refd to. [para. 67].

Branigan v. Yukon Territory, [2004] Yukon Cases 79; 2004 YKSC 79, refd to. [para. 67].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50; C.C.S.M., c. F-175, sect. 2 [para. 34]; sect. 12 [para. 72]; sect. 17(1), sect. 17(2)(c), sect. 17(3) [para. 25]; sect. 23(1)(a), sect. 24, sect. 25(1) [para. 24]; sect. 69 [para. 27]; sect. 70(1), sect. 70(2) [para. 32].

Counsel:

Odaro Omonuwa, for the applicant;

Sean D. Boyd, for the respondent.

This appeal was heard before Abra, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 29, 2011.