Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) et al., (1998) 111 B.C.A.C. 95 (CA)

• Judge: Prowse, Donald and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 18, 1998
• Jurisdiction: British Columbia
• Citations: (1998), 111 B.C.A.C. 95 (CA); 83 CPR (3d) 501; [1999] 6 WWR 1; 58 BCLR (3d) 61; 111 BCAC 95; [1998] BCJ No 1927 (QL);1998 CanLII 6444 (BC CA); 8 Admin LR (3d) 236;[1999] 6 WWR 1;58 BCLR (3d) 61;111 BCAC 95;83 CPR (3d) 501;8 Admin LR (3d) 236;[1998] BCJ No 1927 (QL)

Aquasource Ltd. v. Privacy Commr. (1998), 111 B.C.A.C. 95 (CA);

   181 W.A.C. 95

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. SE.025

Aquasource Ltd. (petitioner/appellant) v. The Freedom of Information and Protection of Privacy Commissioner for the Province of British Columbia (respondent/respondent) and the Attorney General for the Province of British Columbia (intervenor)

(CA022585)

Indexed As: Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) et al.

British Columbia Court of Appeal

Prowse, Donald and Newbury, JJ.A.

August 18, 1998.

Summary:

A B.C. company produced and sold bottled water and exported fresh water in bulk. The provincial government, by order-in-council, imposed a moratorium on the issuance of new water-export licences. The company requested access to copies of all information on record that was considered by the govern­ment in making its decision. In response, the company received severed excerpts from a document. The company applied under s. 52 of the Freedom of Information and Protec­tion of Privacy Act for a review of the Ministry's decision to withhold parts of that document. The Commissioner under the Act ordered the Ministry to reconsider its deci­sion. The company applied for judicial review. The court directed the Commissioner to reconsider the whole matter. See 1 B.C.L.R.(3d) 180. The Commissioner held that the Ministry was required by s. 12 of the Act to refuse access to the severed por­tions of the document. The company again applied for judicial review to set aside the order. A Chambers judge upheld the Com­missioner's order. See 45 Admin. L.R.(2d) 214. The company appealed.

The British Columbia Court of Appeal dismissed the appeal.

Crown - Topic 7211

Examination of public documents - Free­dom of information - Bars - Consultations or deliberations by government officials - The Freedom of Information and Protec­tion of Privacy Act, s. 12(1), directed the head of a public body to refuse to disclose information that would reveal the sub­stance of deliberations of the Executive Council or its committees - The British Columbia Court of Appeal held that s. 12(1) widely protected the confidence of Cabinet communications - The court fur­ther held that the exception in s. 12(2)(c) related to the purpose for which the infor­mation was given: if it was to provide background or analysis and was not inter­woven with any of the items listed in s. 12(1), the information could be disclosed.

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - The British Columbia Court of Appeal held that the Freedom of Information and Protection of Privacy Commissioner was required to be correct in matters of statutory interpretation - Reasonableness was the appropriate review test for the application of the Freedom of Information Act to the particular circum­stances of the Act - See paragraphs 29 to 30.

Words and Phrases

Substance of deliberation - The British Columbia Court of Appeal held that this phrase, as found in s. 12 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, referred to the body of information which Cabinet considered (or would consider in the case of sub­missions not yet presented), in making a decision - See paragraph 39.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration) (1998), 226 N.R. 201 (S.C.C.), refd to. [para. 15].

Doe et al. v. Information and Privacy Commissioner (Ont.) (1993), 64 O.A.C. 248; 106 D.L.R.(4th) 140 (Div. Ct.), refd to. [para. 16].

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. 17].

Walmsley - see Ontario (Attorney General) v. Information and Privacy Commis­sioner (Ont.) et al.

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385, refd to. [para. 18].

Canadian National Railways Co. v. Canada Steamship Lines Ltd., [1945] A.C. 204, consd. [para. 42].

National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assur­ance Co. et autres, [1990] 2 S.C.R. 1029; 115 N.R. 42; 20 Q.A.C. 226, consd. [para. 44].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, sect. 12(1) [para. 4]; sect. 12(2)(c) [para. 5].

Authors and Works Noticed:

Drafting Conventions of the Uniform Law Conference of Canada (1987), generally [para. 47].

Driedger, The Construction of Statutes (3rd Ed. 1994), pp. 208, 209 [para. 46].

Heard, Canadian Constitutional Convention (1991), p. 63 [para. 40].

Counsel:

R.W. Grant, for the appellant;

S.E. Ross, for the respondent;

G.H. Copley, Q.C., and J. Loenen, for the intervenor, Attorney General for British Columbia.

This appeal was heard at Vancouver, British Columbia, on June 15 and 16, 1998, before Prowse, Donald and Newbury, JJ.A., of the British Columbia Court of Appeal.

Donald, J.A., delivered the following judgment for the British Columbia Court of Appeal on August 18, 1998.