Hans v. STU, 2016 NBQB 49

Judge:Morrison, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:October 01, 2015
Jurisdiction:New Brunswick
Citations:2016 NBQB 49;(2016), 447 N.B.R.(2d) 101 (TD)
 
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Hans v. STU (2016), 447 N.B.R.(2d) 101 (TD);

    447 R.N.-B.(2e) 101; 1171 A.P.R. 101

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.026

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.026

Elizabeth Hans (applicant) v. St. Thomas University (respondent)

(F-M-35-2015; 2016 NBQB 49; 2016 NBBR 49)

Indexed As: Hans v. St. Thomas University

Répertorié: Hans v. St. Thomas University

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

February 29, 2016.

Summary:

Résumé:

The applicant requested information from St. Thomas University under the Right to Information and Protection of Privacy Act (RTIPPA). The university ultimately disclosed some of the information, but refused to disclose severance payment information respecting officers and employees. The applicant complained to the Access to Information and Privacy Commissioner. The Commissioner recommended that the university provide the applicant with the severance payment information. The Commissioner opined that, while the severance payment information was personal information protected under s. 21(2) of RTIPPA, it came within one of the exceptions outlined in s. 21(3) and thus its disclosure was deemed not to constitute an unreasonable invasion of privacy. The university did not accept the Commissioner's recommendations and refused to disclose the severance payment information. The applicant appealed the university's decision pursuant to s. 75(1) of the RTIPPA.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - Section 21(3) of the Right to Information and Protection of Privacy Act (RTIPPA) enumerated a number of types of information the disclosure of which would not constitute an unreasonable invasion of privacy - At issue was whether the word "benefits" as used in s. 21(e) covered severance payments to employees of a university - The New Brunswick Court of Queen's Bench, Trial Division, interpreted s. 21(3) and concluded that "... severance payments do not fall within the definition of 'benefits' under section 21(3)(f) nor are they 'a discretionary benefit' within the meaning of subsection (h) of RTIPPA. The disclosure of the severance payment information is therefore deemed to be an unreasonable invasion of a third party's privacy pursuant to section 21(2)(e). As a result, the respondent [in this case the university] is not required to disclose the payment information" - See paragraphs 14 to 32.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - At issue was whether severance payments were to be consider "benefits" for purposes of the disclosure provisions in s. 21(3) of the New Brunswick Right to Information and Protection of Privacy Act (RTIPPA) - The Access to Information and Privacy Commissioner (N.B.), considering what Privacy Commissioners had done in cases in other jurisdictions, interpreted the word "benefits" broadly such as to include severance information for officers and employees of public bodies - The New Brunswick Court of Queen's Bench, Trial Division, stated that "While the statutory language of the statutes considered in these cases appears similar to the wording in RTIPPA it is not identical. I agree with counsel for the respondent when she urges caution in relying upon decisions interpreting legislation from other jurisdictions with different provisions and context" - See paragraph 19.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - At issue was whether severance payments were to be consider "benefits" for purposes of the disclosure provisions in s. 21(3) of the New Brunswick Right to Information and Protection of Privacy Act (RTIPPA) - The Access to Information and Privacy Commissioner interpreted the word "benefits" broadly such as to include severance information for officers and employees of public bodies - The New Brunswick Court of Queen's Bench, Trial Division, stated that the broad interpretation of "benefits" adopted by the Commissioner did not strike the right balance between privacy and transparency which the purposes of the RTIPPA required - Rather, the court favoured a more balanced approach in order to balance the objects of the legislation (i.e., transparency/access and protection of privacy) - See paragraphs 22 to 24.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - Section 21(3) of the Right to Information and Protection of Privacy Act (RTIPPA) enumerated a number of types of information the disclosure of which would not constitute an unreasonable invasion of privacy - At issue was whether the word "benefits" as used in s. 21(e) covered severance payments to employees of a university - The New Brunswick Court of Queen's Bench, Trial Division, interpreted s. 21(3) - The court stated that "The exceptions set out in section 21(3) are, in my view, very specific. For example, they refer to a third party's health information, business name, telephone number, details of supply contracts, licenses and permits. There is no specific reference to severance payments. I believe the omission gives rise to the maxim expressio unius est exclusio alterius now more commonly called 'implied exclusion' ... Since severance payments are not specifically mentioned, is the term 'benefit' as used in subsections (f) and (h) sufficiently broad as to encompass severance payments? In my view it is not" - See paragraphs 25 and 26.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - [See first Crown - Topic 7161 ].

Crown - Topic 7177

Examination of public documents - Freedom of information - Legislation - Disclosure authorized or required by legislation - [See first Crown - Topic 7161 ].

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See fourth Crown - Topic 7161 ].

Words and Phrases

Benefits - The New Brunswick Court of Queen's Bench, Trial Division, interpreted the word "benefits" as it appeared in s. 21(3) of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 - See paragraphs 14 to 32.

Cases Noticed:

Calgary (City), Re, [2001] A.I.P.C.D. (Alta. Privacy Comm.), refd to. [para. 18].

Ontario and Northland Transportation Commission, Re, [2002] O.I.P.C. No. 146, refd to. [para. 19].

Temiskaming Shores (City), Re, [2012] O.I.P.C. No. 54, refd to. [para. 19].

British Columbia (Ministry of Health), Re, [1994] B.C.I.P.C.D. No. 27, refd to. [para. 19].

Ukrainian Greek Catholic Parish of St. Michael's, Re (1957), 22 W.W.R.(N.S.) (Man. Q.B.), refd to. [para. 19].

Winnipeg v. Brian Investments Ltd., [1953] 1 D.L.R. 270 (Man. C.A.), refd to. [para. 19].

R. v. Dyment (1988), 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 20].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 21].

Jean v. Pêcheries Roger L. ltée et al. (2010), 354 N.B.R.(2d) 300; 913 A.P.R. 300; 2010 NBCA 10, refd to. [para. 27].

Statutes Noticed:

Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, sect. 7(1), sect. 21(1), sect. 21(2)(e), sect. 21(3)(f), sect. 21(3)(h) [para. 9]; sect. 75(1) [para. 1].

Counsel:

Avocats:

Brenda Comeau, for the applicant;

Amy R. Gough Farnworth, for the respondent.

This appeal was heard in Fredericton, New Brunswick, on October 1, 2015, before Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on February 29, 2016.

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