Imperial Oil Ltd. v. Calgary (City) et al.,

• Judge: Conrad, Slatter and Rowbotham, JJ.A.
• Neutral Citation: 2014 ABCA 231
• Date: 16 July 2014
• Court: Court of Appeal (Alberta)

Imperial Oil Ltd. v. Calgary (2014), 580 A.R. 125; 620 W.A.C. 125 (CA)

MLB headnote and full text

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

Imperial Oil Limited (respondent/applicant in Chambers) v. City of Calgary, Her Majesty the Queen in Right of the Province of Alberta, as represented by the Minister of Environment, and the Environmental Appeals Board (respondents/respondents in Chambers) and (Alberta) Information and Privacy Commissioner (appellant/respondent in Chambers)

(1301-0250-AC; 2014 ABCA 231)

Indexed As: Imperial Oil Ltd. v. Calgary (City) et al.

Alberta Court of Appeal

Conrad, Slatter and Rowbotham, JJ.A.

July 16, 2014.

Summary:

Lands owned by Imperial Oil were approved by Calgary for residential subdivision, but were contaminated by hydrocarbons, vapours and lead. Regulatory and court proceedings took place respecting remediation. Prior to completion of those proceedings, non-binding mediation was agreed to by Imperial, Alberta Environment, the Environmental Appeals Board, the Calgary Health Region and the residents of the residential subdivision. The City of Calgary declined an invitation to participate in mediation. The remediation agreement was agreed to remain confidential. Mediation was successful. A remediation agreement was reached. The city applied under the Freedom of Information and Protection of Privacy Act for access to the remediation agreement. The Information and Privacy Commissioner ordered that the agreement be disclosed, subject to some personal information being withheld, notwithstanding the confidentiality agreement. Imperial Oil applied for judicial review.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 565 A.R. 91, allowed the application and quashed the Commissioner's order that the agreement be disclosed. Given the confidentiality agreement, the Commissioner's decision was unreasonable. The Commissioner appealed.

The Alberta Court of Appeal quashed the appeal because the Commissioner had no standing to appeal. In any event, the trial judge did not err in setting aside the Commissioner's order as the remediation agreement was exempt from disclosure under both s. 16 (commercial information supplied in confidence by a third party) and s. 27 (privileged information) of the Act.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - [See Crown - Topic 7245 ].

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - [See Crown - Topic 7207 ].

Crown - Topic 7177

Examination of public documents - Freedom of information - Legislation - Disclosure authorized or required by legislation - Imperial Oil and Alberta Environment, along with others, mediated a dispute over responsibility for remediating residential lands in the City of Calgary - The remediation agreement was ordered disclosed by the Information and Privacy Commissioner - The Commissioner found that disclosure was not barred under s. 16(1) of the Freedom of Information and Protection of Privacy Act (FOIP), but that, even if it was, s. 35(3) of the Environmental Protection and Enhancement Act authorized disclosure to the public (FOIP, s. 16(3)) - Section 35(3) stipulated which records were available to the public without the need for a formal request under the Act - The Director determined that the request for confidentiality was reasonable and the information was not disclosable - The Alberta Court of Appeal held that the Commissioner was likely entitled to review the Director's decision not to disclose under s. 65(1) of the FOIP - However, the court stated that "there is no indication on this record that the Director's decision not to disclose was in any respects unreasonable. Both Alberta Environment and the Environmental Appeals Board were firmly of the view that dislcosure would seriously undermine the mediation process commonly used to resolve environmental disputes. That was a reasonable position for them to take, and its is amply supported by the record." - See paragraphs 88 to 93.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege - Lands owned by Imperial Oil were approved by the city of Calgary for residential subdivision, but were contaminated by hydrocarbons, vapours and lead - Regulatory and court proceedings took place respecting remediation - Prior to completion of those proceedings, non-binding mediation was agreed to by Imperial, Alberta Environment, the Environmental Appeals Board, the Calgary Health Region and the residents of the residential subdivision - The city declined to participate in mediation - Mediation was successful and the remediation agreement was agreed by all participants to be confidential - The city applied under the Freedom of Information and Protection of Privacy Act for access to the remediation agreement - Section 27(1) of the Act provided for refusal of disclosure of information "subject to any type of legal privilege including solicitor-client privilege and parliamentary privilege" - The Information and Privacy Commissioner held that the agreement was not privileged - The trial judge held that the Commissioner's decision was incorrect - Applying the Wigmore test, the agreement was privileged - The parties to the agreement provided evidence as to the importance of confidentiality in the mediation process - There were overriding public policy reasons to encourage settlements - Without confidentiality, including confidentiality respecting the agreement itself, the effectiveness of mediation would be undermined - The court held that s. 27(1) applied to preclude disclosure, as the agreement was privileged - The Alberta Court of Appeal affirmed that the remediation agreement was privileged and exempt from disclosure under s. 27(1) - See paragraphs 50 to 64.

Crown - Topic 7207

Examination of public documents - Freedom of information - Bars - Confidentiality - Lands owned by Imperial Oil were approved by the City of Calgary for residential subdivision, but were contaminated by hydrocarbons, vapours and lead - Regulatory and court proceedings took place respecting remediation - Prior to completion of those proceedings, non-binding mediation was agreed to by Imperial, Alberta Environment, the Environmental Appeals Board, the Calgary Health Region and the residents of the residential subdivision - The city declined to participate in mediation - Mediation was successful and the remediation agreement was agreed by all participants to be confidential - The city applied under the Freedom of Information and Protection of Privacy Act for access to the remediation agreement - The Information and Privacy Commissioner ordered that the agreement be disclosed - The Commissioner rejected non-disclosure under s. 16(1) of the Act, being information supplied by Imperial Oil in confidence, which contained commercial and financial, scientific or technical information, the disclosure of which would harm the business interests of a third party - The trial judge quashed the Commissioner's decision as unreasonable, stating that "it flies in the face of logic that this Agreement does not contain 'commercial' information. ... The Commissioner does not elaborate in his decision as to why he found that it did not contain commercial information. There were inadequate reasons on this issue. I would agree with IOL that this is not reasonable as it is not transparent, and it must be transparent to be reasonable." - The Commissioner's finding that the information disclosed to Alberta Environment was not the information "of" Imperial Oil was also unreasonable - The Commissioner's decision that the remediation agreement was not information supplied in "confidence" involved an interpretation of legislation outside of the Commissioner's expertise, which was subject to the correctness standard of review - The Minister's decision on confidentiality was incorrect - The Alberta Court of Appeal affirmed the decision, stating that "the Remediation Agreement satisfied all of the preconditions for non-disclosure found in s. 16. Imperial Oil had supplied protected commercial, financial, scientific or technical information in confidence to Alberta Environment. The disclosure of that information to the City of Calgary was likely to cause harm to the legitimate business interests of Imperial Oil. While there was an enactment that initially authorized disclosure of that information, the decision taken under the terms of that enactment not to disclose was reasonable." - See paragraphs 65 to 94.

Crown - Topic 7214.1

Examination of public documents - Freedom of information - Bars - Commercial, financial, labour relations, scientific or technical information - [See Crown - Topic 7207 ].

Crown - Topic 7245

Examination of public documents - Freedom of information - Judicial review and appeals - Standing of commissioner - The city of Calgary applied under the Freedom of Information and Protection of Privacy Act for access to a remediation agreement entered into between Imperial Oil, Alberta Environment, the Environmental Appeals Board, the Calgary Health Region and the residents of the residential subdivision concerning contaminated soil in a Calgary area subdivision - The Information and Privacy Commissioner ordered that the agreement be disclosed, subject to some personal information being withheld, notwithstanding a confidentiality agreement - The Alberta Court of Appeal held that the Commissioner had no standing to appeal the court's judicial review decision - Given that the Commissioner was required to be fair and neutral between litigants, even though he must decide the dispute in light of the overall public policy of the Act, it was inappropriate for the Commissioner's office to be actively involved in litigation as to the validity of his decision - An appeal was available to the city of Calgary - The city's inability or unwillingness to appeal did not establish a right of appeal in the Commissioner - See paragraphs 23 to 30.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Imperial Oil and Alberta Environment, along with others, reached an agreement through mediation respecting the remediation of certain contaminated lands - The city of Calgary, which had declined to participate in the mediation, made an access to information request under the Freedom of Information and Protection of Privacy Act - The Information and Privacy Commissioner ordered disclosure of the agreement - Imperial Oil sought judicial review - The trial judge quashed the Commissioner's order - The Alberta Court of Appeal held that the Commissioner's interpretation and application of the Act was entitled to deference (reasonableness standard of review) - The court stated that "The standard of correctness only governs: (1) a constitutional issue; (2) a question of general law that is both of central importance to the legal system as a whole and outside the tribunal's specialized area of expertise; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a 'true question of jurisdiction or vires '" - The Commissioner's decision on whether information was "privileged" under s. 27 of the Act was subject to the correctness standard of review - Privilege was a legal concept with constitutional dimensions and its interpretation was of central importance to the legal system as a whole - The Commissioner's interpretation of statutes and procedures over which he had no specialized expertise, particularly the Environmental Protection and Enhancement Act, was also subject to the correctness standard of review - The Commissioner disagreed with the interpretation that Alberta Environment and the Environmental Appeals Board placed on the applicable environmental statutes, regulations and policies - The court stated that "a reviewing court should extend limited deference to the Commissioner's interpretation of legislation over which he has no expertise. Rather, the reviewing court should extend deference to, and should favour the interpretation of that collateral legislation which has been adopted by the specialized tribunals that routinely administer it" - See paragraphs 33 to 43.

Cases Noticed:

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 432 A.R. 188; 424 W.A.C. 188; 90 Alta. L.R.(4th) 201; 2008 ABCA 160, leave to appeal refused [2008] 3 S.C.R. vi; 391 N.R. 396; 469 A.R. 394; 470 W.A.C. 394, refd to. [para. 23].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) (2010), 474 A.R. 169; 479 W.A.C. 169; 21 Alta. L.R.(5th) 30; 2010 ABCA 26, revd. [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. 24].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 24].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 45 Alta. L.R.(5th) 1; 2011 ABCA 94, refd to. [para. 24].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers', Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1, refd to. [para. 28].

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].

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. 32].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 32].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 32].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199 (C.A.), refd to. [para. 32].

Canadian Union of Public Employees, Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 32].

Ontario (Minister of Finance) v. Smith et al. (2014), 457 N.R. 40; 320 O.A.C. 135; 2014 SCC 36, refd to. [para. 33].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 33].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 35].

University of Calgary v. J.R. et al. (2013), 574 A.R. 137; 90 Alta. L.R.(5th) 94; 2013 ABQB 652, refd to. [para. 35].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 35].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 35].

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, refd to. [para. 36].

Alberta (Information and Privacy Commissioner) v. Alberta Federation of Labour (2005), 22 C.P.C.(6th) 141; 2005 ABQB 927, refd to. [para. 37].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer) (1993), 135 A.R. 363; 33 W.A.C. 363; 8 Alta. L.R.(3d) 429 (C.A.), refd to. [para. 37].

Gnitrow Ltd. v. Cape Plc., [2000] 1 W.L.R. 2327 (Eng. C.A.), refd to. [para. 37].

Brown v. Cape Breton (Regional Municipality) (2011), 302 N.S.R.(2d) 84; 955 A.P.R. 84; 331 D.L.R.(4th) 307; 2011 NSCA 32, refd to. [para. 37].

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. 39].

Cojocaru v. British Columbia Women's Hospital and Health Center et al., [2013] 2 S.C.R. 357; 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 48].

University of Alberta et al. v. Chang et al. (2012), 539 A.R. 58; 561 W.A.C. 58; 71 Alta. L.R.(5th) 19; 2012 ABCA 324, refd to. [para. 48].

Union Carbide Canada Inc. et al. v. Bombardier Inc. et al. (2014), 457 N.R. 279; 2014 SCC 35, refd to. [para. 52].

Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd. (2013), 542 A.R. 83; 566 W.A.C. 83; 81 Alta. L.R.(5th) 84; 2013 ABCA 10, refd to. [para. 58].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al., [2013] 2 S.C.R. 623; 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 60].

Liquor Control Board (Ont.) v. Magnotta Winery Corp. et al. (2010), 270 O.A.C. 55; 102 O.R.(3d) 545; 2010 ONCA 681, refd to. [para. 63].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 64].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 16 [para. 66]; sect. 27 [para. 57].

Counsel:

D. Samuelson, for the respondent, Imperial Oil Ltd.;

L.G. Gosselin, for the respondent, City of Calgary;

L. Farion, for the respondent, Her Majesty the Queen in Right of the Province of Alberta as represented by the Minister of Environment;

A.C.L. Sims, Q.C., for the respondent, Alberta Environmental Appeal Board;

G. Solomon, Q.C., for the appellant.

This appeal was heard on May 9, 2014, before Conrad, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal.

The following judgment was delivered by the Court and filed on July 16, 2014.