University of Alberta v. Information and Privacy Commissioner (Alta.) et al., 2012 ABQB 247

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 16, 2011
• Citations: 2012 ABQB 247;(2012), 538 A.R. 117 (QB)

Alta. Univ. v. Privacy Commr. (2012), 538 A.R. 117 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AP.077

In The Matter Of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, as amended

And In The Matter Of Order F2009-023 Issued by the Officer of the Information and Privacy Commissioner, Dated February 26, 2010

The Governors of the University of Alberta (applicant) v. Information and Privacy Commissioner and Dr. Anton Oleynick (respondents) and Association of Academic Staff of the University of Alberta (intervenor/proposed)

(1003 05907; 2012 ABQB 247)

Indexed As: University of Alberta v. Information and Privacy Commissioner (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

April 13, 2012.

Summary:

Dr. Oleynick made a request to the University of Alberta (U of A) under the Freedom of Information and Protection of Privacy Act (FOIPPA) for email communications between Dr. Szostak, who was a member of Social Sciences and Humanities Research Council Selection Committee No. 15 (SSHRC) from U of A, and SSHRC officials and other interlocutors, in which Dr. Oleynick was mentioned. After U of A wrote to Dr. Szostak asking whether he had any records responsive to the request, it advised Dr. Oleynick that it had not retrieved any responsive records. Dr. Oleynick complained to the Office of the Information and Privacy Commissioner. An Adjudicator delegated by the Commissioner held that U of A had custody or control of responsive records because any emails would have "passed through its servers" or because U of A had "some right to deal with the records". As a result, the Adjudicator held that U of A had a duty to assist Dr. Oleynick and that it had failed to do so by failing to provide sufficient evidence regarding the searches it performed and why U of A was unable to provide the requested records. However, because U of A provided that information in the course of the Inquiry, the Adjudicator did not order it to provide any further information to Dr. Oleynick. U of A applied for judicial review.

The Alberta Court of Queen's Bench allowed the application. The Adjudicator's decision was unreasonable because it failed to consider the purpose of the FOIPPA, it failed to consider that SSHRC exercised significant control over the records in question, and failed to adequately apply the relevant factors in determining whether the University had custody or control of the records.

Crown - Topic 7110

Examination of public documents - General - Record under control of government or public body - Dr. Oleynick made a request to the University of Alberta (U of A) under the Freedom of Information and Protection of Privacy Act (FOIPPA) for email communications between Dr. Szostak, who was a member of Social Sciences and Humanities Research Council Selection Committee No. 15 (SSHRC) from U of A, and SSHRC officials and other interlocutors, in which Dr. Oleynick was mentioned - After U of A wrote to Dr. Szostak asking whether he had any records responsive to the request, it advised Dr. Oleynick that it had not retrieved any responsive records - Dr. Oleynick complained to the Office of the Information and Privacy Commissioner - An Adjudicator delegated by the Commissioner held that U of A had custody or control of responsive records because any emails would have "passed through its servers" or because U of A had "some right to deal with the records" - As a result, the Adjudicator held that U of A had a duty to assist Dr. Oleynick and that it had failed to do so by failing to provide sufficient evidence regarding the searches it performed and why U of A was unable to provide the requested records - U of A applied for judicial review - The Alberta Court of Queen's Bench allowed the application - The Adjudicator's decision was unreasonable on three inter-related grounds - The Adjudicator: 1. failed to consider the purpose of the legislation in the course of interpreting the meaning of "custody or control"; 2. failed to recognize that SSHRC, a federal body subject to a different legislative privacy regime, exercised significant control over the responsive records; and 3. failed to apply the relevant factors for determining whether a public body had custody or control, and unreasonably applied and relied on two irrelevant factors - See paragraphs 80 to 110.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - [See Crown - Topic 7110 ].

Crown - Topic 7162

Examination of public documents - Freedom of information - Legislation - Purpose of - [See Crown - Topic 7110 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Dr. Oleynick made a request to the University of Alberta (U of A) under the Freedom of Information and Protection of Privacy Act (FOIPPA) for email communications between Dr. Szostak, who was a member of Social Sciences and Humanities Research Council Selection Committee No. 15 (SSHRC) from U of A, and SSHRC officials and other interlocutors, in which Dr. Oleynick was mentioned - After U of A wrote to Dr. Szostak asking whether he had any records responsive to the request, it advised Dr. Oleynick that it had not retrieved any responsive records - Dr. Oleynick complained to the Commissioner - An Adjudicator delegated by the Information and Privacy Commissioner held that U of A had custody or control of responsive records - U of A applied for judicial review - U of A and the intervenor, the Association of Academic Staff University of Alberta, argued that the standard of review was correctness - Both suggested that this issue fell within the category of "true jurisdictional questions" because the Commissioner, in determining whether the records were within a public body's custody or control, was determining whether he had jurisdiction - The Alberta Court of Queen's Bench held that the issue of the interpretation of "custody or control" was not a true question of jurisdiction - The Adjudicator's decision was one that was presumptively owed deference because she was interpreting her home statute - The court applied the standard of reasonableness - See paragraphs 24 to 52.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Crown - Topic 7110 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 7].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 7].

Information and Privacy Commissioner (Alta.) v. Wittmann, A.C.J.Q.B., et al. (2011), 502 A.R. 339; 517 W.A.C. 339; 2011 ABCA 36, refd to. [para. 24].

Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator) - see Information and Privacy Commissioner (Alta.) v. Wittmann, A.C.J.Q.B., et al.

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].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 31].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Ontario (Attorney General) v. Information and Privacy Commissioner (Ont.) et al. (1997), 101 O.A.C. 140; 34 O.R.(3d) 611 (C.A.), refd to. [para. 32].

Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner), 2011 ONSC 172, refd to. [para. 32].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 42].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 43].

Council of Canadians With Disabilities v. VIA Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 44].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 45].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 48].

Ottawa (City) v. Information and Privacy Commissioner (Ont.) et al. (2010), 272 O.A.C. 162; 2010 ONSC 6835 (Div Ct.), refd to. [para. 55].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 83].

Neilson v. Information and Privacy Commissioner (B.C.) et al., [1998] B.C.T.C. Uned. 944 (S.C.), refd to. [para. 85].

Simon Fraser University v. Information and Privacy Commissioner (B.C.) et al., [2009] B.C.T.C. Uned. 1481; 2009 BCSC 1481, refd to. [para. 90].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 2(a), sect. 4(1), sect. 6(1), sect. 10(1) [para. 53].

Counsel:

J. Cameron Prowse, Q.C., and Noël Papadopoulos (Prowse Chowne LLP), for the applicant;

Sandra M. Anderson and Anne L.G. Côté (Field LLP), for the respondent, The Governors of the University of Alberta;

Dr. Anton Oleynick appeared on his own behalf.

This application was heard on November 16, 2011, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 13, 2012.