Alta. v. AUPE, (2014) 603 A.R. 52 (QB)

JudgeManderscheid, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateSeptember 19, 2014
JurisdictionAlberta
Citations(2014), 603 A.R. 52 (QB);2014 ABQB 737

Alta. v. AUPE (2014), 603 A.R. 52 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.057

Alberta Treasury Branches (applicant) v. Alberta Union of Provincial Employees and Office of the Information and Privacy Commissioner (respondents)

(1203 08936; 2014 ABQB 737)

Indexed As: Alberta (Treasury Branches) v. Alberta Union of Provincial Employees et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

December 3, 2014.

Summary:

The Alberta Treasury Branches (ATB) applied for judicial review of an order, decision and supplementary reasons to order, issued by the Adjudicator in the Office of the Information and Privacy Commissioner (OIPC). In the OIPC order, the Adjudicator considered the interpretation and application of s. 4(1)(r) of the Freedom of Information and Protection of Privacy Act (FOIPP). The Adjudicator held that "Alberta Treasury Branches" was a Crown corporation comprised of a board of directors, and not a "treasury branch" as defined in s. 4(1)(r) of FOIPP. Consequently, the Adjudicator ordered ATB to assist the respondent, Alberta Union of Provincial Employees (AUPE), with the request for certain records held by ATB, as they were not exempt from disclosure. In the supplementary decision, the Adjudicator considered the application of s. 36(3) of the Alberta Treasury Branches Act (1997), a transitional provision omitted, but not repealed, from the current Alberta Treasury Branches Act (2000). The Adjudicator concluded that s. 36(3) was a transitional provision that did not apply respecting AUPE's request.

The Alberta Court of Queen's Bench dismissed the applications.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Crown - Topic 7246 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Crown - Topic 7246 ].

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The Alberta Treasury Branches (ATB) applied for judicial review of an order, decision and supplementary reasons to order, issued by the Adjudicator in the Office of the Information and Privacy Commissioner (OIPC) - In the OIPC order, she considered the interpretation and application of s. 4(1)(r) of the Freedom of Information and Protection of Privacy Act (FOIPP) - She held that "Alberta Treasury Branches" was a Crown corporation comprised of a board of directors, and not a "treasury branch" as defined in s. 4(1)(r) of FOIPP - Consequently, the Adjudicator ordered ATB to assist the respondent, Alberta Union of Provincial Employees (AUPE), with the request for certain records held by ATB, as they were not exempt from disclosure - In the supplementary decision, the Adjudicator considered the application of s. 36(3) of the Alberta Treasury Branches Act (1997), a transitional provision omitted, but not repealed, from the current Alberta Treasury Branches Act (2000) (ATBA) - The Adjudicator concluded that s. 36(3) was a transitional provision that did not apply respecting AUPE's request - The Alberta Court of Queen's Bench held, inter alia, that the Arbitrator did not make an unreasonable decision in holding that s. 36(3) did not apply - Her interpretation aligned with the principle of statutory interpretation which required coherent interpretation of statutes in pari materia - "In other words, while the ATBA 'ought not only to be interpreted with an eye to the internal coherence of its own scheme; it must also not be interpreted in a fashion which is inconsistent' with the Interpretation Act." - See paragraphs 50 to 59.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - Section 1(k) of the Alberta Treasury Branches Act (ATBA) provided that: "'treasury branch' means a treasury branch established under section 10, whether the branch carries on business with the public directly or serves as an administrative or head office;" - Section 2(1) provided that: "There is hereby established a corporation with the name 'Alberta Treasury Branches', consisting of the board of directors appointed under section 3." - Section 10 provided that: "Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta." - Section 28(1) of the Interpretation Act provided that: "In an enactment, ... (ddd) 'treasury branch' means a treasury branch within the meaning of the Alberta Treasury Branches Act." - Section 4(1)(r) of the Freedom of Information and Protection of Privacy Act (FOIPP) provided that: "This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following: ... (r) a record in the custody or control of a treasury branch other than a record that relates to a non-arm's length transaction between the Government of Alberta and another party." - An Adjudicator in the Office of the Information and Privacy Commissioner held that "Alberta Treasury Branches" was a Crown corporation comprised of a board of directors, and not a "treasury branch" as defined in s. 4(1)(r) of the FOIPP Act - Consequently, the Adjudicator ordered ATB to assist the respondent, Alberta Union of Provincial Employees, with the request for certain records held by ATB, as they were not exempt from disclosure - The Alberta Court of Queen's Bench applied a reasonableness standard and upheld the decision on judicial review - See paragraphs 76 to 88.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Alberta Treasury Branches (ATB) applied for judicial review of an order, decision and supplementary reasons to order, issued by the Adjudicator in the Office of the Information and Privacy Commissioner (OIPC) - In the OIPC order, the Adjudicator considered the interpretation and application of s. 4(1)(r) of the Freedom of Information and Protection of Privacy Act (FOIPP) - She held that "Alberta Treasury Branches" was a Crown corporation comprised of a board of directors, and not a "treasury branch" as defined in s. 4(1)(r) - Consequently, she ordered ATB to assist the respondent, Alberta Union of Provincial Employees (AUPE), with the request for certain records held by ATB, as they were not exempt from disclosure - In the supplementary decision, the Adjudicator considered the issue relating to the application of s. 36(3) of the Alberta Treasury Branches Act (1997), a transitional provision omitted, but not repealed, from the current Alberta Treasury Branches Act (2000) (ATBA) - The Adjudicator concluded that s. 36(3) was a transitional provision that did not apply respecting AUPE's request - The Alberta Court of Queen's Bench held that the issues of whether the Adjudicator erred when she: (1) held that s. 36(3) of the ATBA was a transitional provision which had no application to the interpretation of s. 4(1)(r) of the FOIPP Act and; (2) concluded that s. 4(1)(r) did not apply to exclude access to the records requested by AUPE, were both subject to a reasonableness standard of review - See paragraphs 26 to 40.

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Crown - Topic 7246 ].

Statutes - Topic 525.1

Interpretation - General principles - Transitional provisions - The Alberta Court of Queen's Bench stated that "... where there are two periods of time - the former/old legislative regime and the new legislative regime - the proper function of a transitional provision embedded in the new or current legislation would be to bridge any legal gap between these two periods. ... While a transitional provision continues to be in force (post-transition period), i.e. has not been repealed, that transitional provision should not be read or interpreted in a manner that would subvert the clarity of the current/new legislative regime. Where the transitional provision would conflict with the clear provisions of the new statute or befuddle the statutory construction of the new legislative regime, it is both pragmatic and reasonable to limit the transitional provision's scope of operation, especially where the language permits and the legislature has intentionally omitted, but not repealed, the transitional provision from the new or revised statute. This approach inclusively facilitates coherence and resolves the problems that surround temporal application of legislation and the interpretation of transitional provisions which, in the words of Professor Sullivan, are 'notoriously difficult' and 'inherently complex'" - See paragraph 56.

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See first Crown - Topic 7161 ].

Words and Phrases

Treasury branch - The Alberta Court of Queen's Bench interpreted the meaning of "treasury branch" as found in s. 1(k) of the Alberta Treasury Branches Act, R.S.A. 2000, c. A-37, s. 4(1)(r) of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 and s. 28(1)(ddd) of the Interpretation Act, R.S.A. 2000, c. I-8 - See paragraphs 76 to 88.

Cases Noticed:

Imperial Oil Ltd. v. Calgary (City) et al. (2014), 580 A.R. 125; 620 W.A.C. 125; 374 D.L.R.(4th) 489; 2014 ABCA 231, dist. [para. 16].

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, not folld. [para. 17].

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. 19].

University of Alberta v. Information and Privacy Commissioner (Alta.) et al. (2012), 538 A.R. 117; 2012 ABQB 247, refd to. [para. 19].

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, appld. [para. 20].

Calgary Board of Education v. Information and Privacy Commissioner (Alta.) et al. (2014), 583 A.R. 311; 96 Alta. L.R.(5th) 380; 2014 ABQB 189, refd to. [para. 20].

Calgary Police Service v. Information and Privacy Commissioner (Alta.) (2010), 484 A.R. 347; 2010 ABQB 82, refd to. [para. 21].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 23].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, ref to. [para. 24].

Ontario (Minister of Community Safety and Correctional Services) v. Information and Privacy Commissioner (Ont.) et al. (2014), 457 N.R. 2; 320 O.A.C. 1; 2014 SCC 31, refd to. [para. 25].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 26].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 26].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 39].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 39].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 42].

York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al. (2007), 220 O.A.C. 311; 84 O.R.(3d) 414; 2007 ONCA 49, refd to. [para. 47].

Alberta (Treasury Branches) v. Ghermezian et al. (1999), 249 A.R. 240; 1999 ABQB 669, affd. (2000), 266 A.R. 170; 228 W.A.C. 170; 2000 ABCA 228, refd to. [para. 48].

Kraft Canada Inc. v. Euro Excellence Inc., [2007] 3 S.C.R. 20; 365 N.R. 332; 2007 SCC 37, refd to. [para. 57].

Rio Algom Mines Ltd. v. Minister of National Revenue, [1970] S.C.R. 511, refd to. [para. 78].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 83].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 83].

Domtar Inc. v. Commission d'appel en matière de lésions professionnelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104; 55 Q.A.C. 241, refd to. [para. 84].

Big Loop Cattle Co. et al. v. Energy Resources Conservation Board (Alta.) et al. (2010), 490 A.R. 246; 497 W.A.C. 246; 2010 ABCA 328, refd to. [para. 84].

Statutes Noticed:

Alberta Treasury Branches Act, S.A. 1997, c. A-37.9, sect. 36 [para. 12].

Alberta Treasury Branches Act, R.S.A. 2000, c. A-37, sect. 1(k), sect. 2(1), sect. 10 [para. 13].

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 4(1)(r) [para. 15].

Interpretation Act, R.S.A. 2000, c. I-8, sect. 28(1)(ddd) [para. 14].

Authors and Works Noticed:

Alberta, Office of the Information and Privacy Commissioner, Practice Note 4 (March 2, 1997), generally [para. 18].

Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed. 2000), p. 342 ff. [para. 57].

MacAulay, Robert W., and Sprague, James L.H., Practice and Procedure before Administrative Tribunals (2004), vol. 2, pp. 6-7 to 6-11 [para. 84].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 654, fn. 60 [para. 41]; 666 [paras. 51, 56].

Counsel:

Robert P. James and Steven Rohatyn (Parlee McLaws LLP), for the applicant;

Simon Renouf, Q.C. (Simon Renouf Professional Corporation), for the respondent, Alberta Union of Provincial Employees;

Richard B. Drewry, Q.C., and Monica Sabo (Emery Jamieson LLP), for the respondent, Office of the Information and Privacy Commissioner.

This application was heard on September 19, 2014, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 3, 2014.

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1 practice notes
  • Edmonton v. Privacy Commr., (2015) 614 A.R. 343 (QB)
    • Canada
    • Alberta Court of Queen's Bench of Alberta (Canada)
    • March 6, 2015
    ...Doe v Ontario (Finance) , 2014 SCC 36, [2014] 2 S.C.R. 3 at para 17; Alberta Treasury Branches v Alberta Union of Provincial Employees , 2014 ABQB 737 at paras 35 and 40. Nothing in the application displaced the presumptive standard of review: There arose no constitutional question, no ques......
1 cases
  • Edmonton v. Privacy Commr., (2015) 614 A.R. 343 (QB)
    • Canada
    • Alberta Court of Queen's Bench of Alberta (Canada)
    • March 6, 2015
    ...Doe v Ontario (Finance) , 2014 SCC 36, [2014] 2 S.C.R. 3 at para 17; Alberta Treasury Branches v Alberta Union of Provincial Employees , 2014 ABQB 737 at paras 35 and 40. Nothing in the application displaced the presumptive standard of review: There arose no constitutional question, no ques......

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