Jones v. UNB, 2015 NBQB 207

Judge:Clendening, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:July 28, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 207;(2015), 442 N.B.R.(2d) 337 (TD)
 
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Jones v. UNB (2015), 442 N.B.R.(2d) 337 (TD);

    442 R.N.-B.(2e) 337; 1155 A.P.R. 337

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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: [2015] N.B.R.(2d) TBEd. NO.012

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.012

Miriam Jones (applicant) v. University of New Brunswick (respondent) and New Brunswick Access to Information and Privacy Commissioner (respondent)

(F-M-18-2015; 2015 NBQB 207; 2015 NBBR 207)

Indexed As: Jones v. University of New Brunswick et al.

Répertorié: Jones v. University of New Brunswick et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Clendening, J.

October 23, 2015.

Summary:

Résumé:

The applicant made an access to information request of the respondent under s. 8 of the Right to Information and Protection of Privacy Act (RTIPPA). The applicant sought an order removing the report of the RTIPPA Commissioner into the court and quashing it. The applicant sought a further order requiring the Commissioner to investigate the complaints referred to her by the applicant and to render a report in conformity with the RTIPPA.

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

Administrative Law - Topic 6106

Judicial review - Statutory appeal - Final order or decision - What constitutes - Jones was the President of the Association of University of New Brunswick Teachers - She made an access to information request of the University of New Brunswick (UNB) under s. 8 of the Right to Information and Protection of Privacy Act (RTIPPA) - Jones opposed UNB's request for an extension - On May 30, 2014, the RTIPPA Commissioner granted UNB's extension in part - The Commissioner allowed UNB until June 27, 2014, to provide Jones with a partial response, including the relevant records for the years 2011 to 2012 and 2012 to 2013 - On June 27, 2014, the Commissioner responded to UNB stating that her office had received a request for a further extension and she reminded UNB that the obligation remained to provide the partial response by June 27, 2014 - In the Commissioner's letter to the President and Vice-Chancellor of UNB, she indicated that "in the event that the University does not provide the partial response as described above by today's date, the Applicant will have the right to file a complaint with our Office for that portion of the request" - Jones alleged that this communication was in the form of a final order - The New Brunswick Court of Queen's Bench, Trial Division, found that this recommendation was part of the procedural process followed by the Commissioner in response to complaints - See paragraph 7.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The applicant made an access to information request under s. 8 of the Right to Information and Protection of Privacy Act (RTIPPA) - The applicant argued that while she "... made one single request for access to certain records, the Commissioner created three separate and distinct deadlines for the Respondent to provide certain documents contained in the request. By doing so, the Commissioner created three instances where the Applicant had the right to either file a referral to court, or a complaint with the Commissioner, should the Respondent have refused the request, or had failed to respond with respect to certain records. ... Accordingly, the Applicant was free to choose to file either a referral to court or a complaint with the Commissioner for the passing of each of the deadlines in which the Respondent failed to respond." - The New Brunswick Court of Queen's Bench, Trial Division, agreed that there was one single request to the Commissioner for access to records - However, the court disagreed "... that the Commissioner created three separate and distinct orders. I disagree further with the applicant's position that she was free to choose both a referral to the Court and a complaint to the Commissioner. ... Sections 65 and 67 of RTIPPA both specifically indicate that if a person refers a matter to a judge of the Court of Queen's Bench the person may not file a complaint with the Commissioner and vice versa in section 67. It states that subject to section 75 (which is the right to appeal) a person who has filed a complaint with the Commissioner may not refer the matter to the Court of Queen's Bench. [T]he applicant is attempting to circumvent the two sections by suggesting that when the Commissioner allows an extension to a deadline with respect to a specific year this somehow creates three final recommendations so that the applicant has a right to file a referral with the Court and a complaint with the Commissioner. ... [T]he referral could be made to the Court or a complaint could be made to the Commissioner but not both simultaneously. ... The applicant has statutory rights of review under section 65, 67 and 75, but they do not run simultaneously, and the Legislation does not provide for a piecemeal approach. The legal remedies available to the applicant are gleaned from RTIPPA and are viewed disjunctively." - See paragraphs 15 to 21.

Crown - Topic 7292

Examination of public documents - Freedom of information - Practice - Appeals - [See Crown - Topic 7161 ].

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Crown - Topic 7161 ].

Cases Noticed:

R. v. Fraser Papers (Canada) Inc. (2006), 301 N.B.R.(2d) 95; 783 A.P.R. 95; 2006 CanLII 6749 (C.A.), refd to. [para. 15].

Statutes Noticed:

Right to Information and Protection of Privacy Act, R.S.N.B. 1973, c. R-10.6, sect. 65, sect. 67, sect. 75 [para. 21].

Counsel:

Avocats:

Brenda Comeau, for the applicant;

No appearance for the respondents.

This application was heard on July 28, 2015, by Clendening, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on October 23, 2015.

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