Alberta (Minister of Employment and Immigration) v. Alberta Federation of Labour et al., (2009) 473 A.R. 49 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 29, 2009
• Citations: (2009), 473 A.R. 49 (QB);2009 ABQB 344

Alta. v. Alta. Labour Federation (2009), 473 A.R. 49 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.047

In The Matter Of the Freedom of Information and Protection of Privacy Act, RSA 2000, c. F-25

And In The Matter Of Decision F2008-D-001 of the Office of the Information and Privacy Commissioner dated September 24, 2008

And In The Matter Of Decision F2008-D-002 of the Office of the Information and Privacy Commissioner dated September 24, 2008

And In The Matter Of an application for judicial review

Her Majesty the Queen in Right of Alberta as represented by the Minister of Employment and Immigration (applicant) v. The Alberta Federation of Labour and the Information and Privacy Commissioner (respondents)

(0803 15708; 2009 ABQB 344)

Indexed As: Alberta (Minister of Employment and Immigration) v. Alberta Federation of Labour et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

June 5, 2009.

Summary:

The Alberta Federation of Labour (AFL) made two requests under the Freedom of Information and Protection of Privacy Act to the Minister of Employment and Immigration to disclose government-held information. The first request was for the names and locations of employers identified for the "targeted inspection" program under Workplace Health and Safety for the years 2005 and 2006. The second request was for the names and locations of employers identified for the "targeted employers - Business Relations Program" under employment standards enforcement for the years 2005 and 2006. The Minister refused both requests. The AFL requested that the Privacy Commissioner review both refusal decisions. An adjudicator determined that the employers on the targeted employers list were affected parties and entitled to a copy of the requests (decision one) and that the time for judicial review of that decision to notify the affected employers was limited to 15 days (decision two). The Minister sought judicial review of both decisions.

The Alberta Court of Queen's Bench allowed the application and quashed the decisions.

Administrative Law - Topic 3220

Judicial review - General - Interim rulings or applications - [See first Crown - Topic 7246 ].

Administrative Law - Topic 3301

Judicial review - General - Bars - General - [See first Crown - Topic 7246 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Alberta Federation of Labour (AFL) made two requests under the Freedom of Information and Protection of Privacy Act to the Minister of Employment and Immigration to disclose government-held information - The requests would have required the Minister to provide the names and locations of certain employers targeted for the purposes of Workplace Health and Safety and employment standards enforcement - The Minister refused both requests - The AFL requested that the Privacy Commissioner review both refusal decisions - An adjudicator determined that the employers were affected parties and entitled to a copy of the requests (decision one) and that the time for judicial review of that decision to notify the affected employers was limited to 15 days (decision two) - The Minister sought judicial review of both decisions - The Privacy Commissioner argued that the application was premature as judicial review of interlocutory decisions was not available except in extraordinary circumstances - The Alberta Court of Queen's Bench rejected the argument - The standard of review was reasonableness - The Privacy Commissioner's adoption of a procedure whereby targeted employers would be informed about the information requests concerning them before the adjudicator even considered whether the information had to be disclosed (i.e., before determining whether certain exceptions to disclosure applied pursuant to s. 18 to 28 of the Act) would defeat the central purpose of the Act and was unreasonable - Rectification of that unreasonable procedure was an "extraordinary circumstance" that warranted intervention by judicial review - See paragraphs 16 to 57.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Alberta Federation of Labour (AFL) made two requests under the Freedom of Information and Protection of Privacy Act to the Minister of Employment and Immigration to disclose government-held information - The requests would have required the Minister to provide the names and locations of certain employers - The Minister refused both requests - The AFL requested that the Privacy Commissioner review both refusal decisions - An adjudicator determined that certain employers were affected parties and entitled to a copy of the requests (decision one) and that the time for judicial review of that decision to notify the affected employers was limited to 15 days (decision two) - The Minister sought judicial review of both decisions - The Minister argued that the adjudicator did not properly exercise his discretion in limiting the time for judicial review to 15 days - The Alberta Court of Queen's Bench agreed - The 15 day period did not appear to be derived from any provision of the Act, but rather seemed to have been selected on an arbitrary basis by the adjudicator - Unless a court ordered otherwise, s. 74(3) of the Act provided that judicial review respecting a Privacy Commissioner's order was to be made no later than 45 days after the person making the application was given a copy of the order - It was a question of jurisdiction whether the adjudicator was bound by s. 74 to allow a 45 day period for judicial review or was free to determine the judicial review period - Therefore, the standard of review was correctness - The impugned decisions were "orders" within s. 74(3) - Therefore, the adjudicator was incorrect in reducing the period within which an application for judicial review could be brought to 15 days - See paragraphs 60 to 67.

Crown - Topic 7249

Examination of public documents - Freedom of information - Judicial review and appeals - Time for application - [See second Crown - Topic 7246 ].

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The Alberta Federation of Labour (AFL) made two requests under the Freedom of Information and Protection of Privacy Act to the Minister of Employment and Immigration to disclose government-held information - The requests would have required the Minister to provide the names and locations of certain employers targeted for the purposes of Workplace Health and Safety and employment standards enforcement - The Minister refused both requests - The AFL requested that the Privacy Commissioner review both refusal decisions - An adjudicator determined that the employers were affected parties and entitled to a copy of the requests - The adjudicator concluded that an affected person had an absolute and unqualified right to know of any inquiry that involved the Act and to answer those in full - It was not relevant whether or not the Minister had a potentially valid and statutorily recognized ground to refuse disclosure of information to a third party - The Minister sought judicial review - The Minister argued that the information sought should not be disclosed to anyone as disclosure would impede government investigations and proper policy decision making processes - The Alberta Court of Queen's Bench held that where the Minister requested that an affected person not be informed of the Act information request, the Privacy Commissioner should first hear submissions and determine the validity of non-disclosure where that non-disclosure was based on ss. 22 to 28 of the Act - If the Privacy Commissioner concluded non-disclosure was appropriate, the matter ended, and the third party would not have any private or economic information disclosed - That third party would not yet have experienced any harm that might result from the disclosure of potentially damaging and confidential information - If all ss. 22 to 28 non-disclosure rationales were rejected, then the affected third party was notified, and invited to make submissions in reference to privacy and business interests (ss. 16 to 17) - Following the procedure advanced by the Privacy Commissioner, affected third party notification could have the effect of disclosing government held information in spite of and without consideration of non-disclosure conditions specifically identified in ss. 18 to 28 - It was unreasonable for the Privacy Commissioner to adopt a procedure that had the effect of defeating the central purpose of the Act where an alternate procedure would avoid that outcome - See paragraphs 35 to 54.

Cases Noticed:

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 ABCA 279, refd to. [para. 16].

Martselos et al. v. Poitras et al., [2008] F.T.R. Uned. A16; 2008 FC 1413, refd to. [para. 16].

Bear Hills Charitable Foundation et al. v. Gaming and Liquor Commission (Alta.) (2008), 463 A.R. 276; 100 Alta. L.R.(4th) 340; 2008 ABQB 766, refd to. [para. 16].

A.D.M. v. Canadian Institute of Actuaries (2008), 467 A.R. 263; 71 C.C.P.B. 252; 2008 ABQB 522, refd to. [para. 16].

Director of Public Prosecution (N.S.), Re, 1997 CanLII 1772 (N.S.F.O.I.P.O.P.), refd to. [para. 43].

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. 65].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 74(3) [para. 62].

Counsel:

Lisa S. Hickman (Alberta Justice), for the applicant;

J.R.W. Blair (Blair Chahley), for Alberta Federation of Labour;

Richard B. Drewry, Q.C. (Emery Jamieson LLP), for the Information and Privacy Commissioner.

This application was heard on April 29, 2009, by Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 5, 2009.