Qualicare Health Service Corp. v. Information and Privacy Commissioner (Alta.),

• Judge: Topolniski, J.
• Neutral Citation: 2006 ABQB 515
• Citation: 2006 ABQB 515,(2006), 407 A.R. 63 (QB),407 AR 63,60 Alta LR (4th) 335,52 Admin LR (4th) 231,[2006] AJ No 865 (QL),[2006] A.J. No 865 (QL),407 A.R. 63,(2006), 407 AR 63 (QB)
• Date: 28 April 2006
• Court: Court of Queen's Bench of Alberta (Canada)

Qualicare Health v. Privacy Commr. (2006), 407 A.R. 63 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.120

Qualicare Health Service Corporation (applicant) v. Office of the Information and Privacy Commissioner of Alberta (respondent)

(0503 15011; 2006 ABQB 515)

Indexed As: Qualicare Health Service Corp. v. Information and Privacy Commissioner (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

July 10, 2006.

Summary:

The death of a nursing home resident who was burned in a bath prompted a newspaper's request under the Freedom of Information and Protection of Privacy Act (FOIPP) for access to complaints and investigations concerning the facility that she lived in and two other facilities operated by the same entity. The Information and Privacy Commissioner directed Alberta Seniors & Community Support to give the newspaper access to a document bearing on that information (the Record). The Commissioner determined that there was insufficient evidence or argument to establish that the Record was excepted from disclosure by s. 20(1)(a) of FOIPP (reasonable expectation of harm to law enforcement) or s. 25(1)(c) (reasonable expectation of harm to economic and other interests of a public body). The nursing home operator applied for judicial review, arguing that the Commissioner imposed a standard of proof that exceeded the legislation's requirements. It also sought to introduce fresh evidence to provide what it said were necessary corrections to the Record.

The Alberta Court of Queen's Bench denied the application to adduce fresh evidence and dismissed the application for judicial review.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - A newspaper made a request under the Freedom of Information and Protection of Privacy Act (FOIPP) for access to information concerning a particular nursing home and other facilities operated by the same entity (Qualicare Health Service Corp.) - The Information and Privacy Commissioner directed Alberta Seniors & Community Support to give the newspaper access to a document bearing on the information sought (the Record) - Qualicare applied for judicial review - It also sought to introduce fresh evidence to provide what it said were necessary corrections to the Record - The Alberta Court of Queen's Bench denied the application to adduce fresh evidence - The responsibility to provide accurate information to a FOIPP request lay with those processing the request - Further, the fresh evidence test was not met - An assertion that Alberta Seniors was slow to respond to Qualicare's request for access to its files to flesh out alleged inaccuracies in the Record did not establish due diligence - In any event, the Commissioner could not deny access to information because a record might be erroneous, nor was he entitled to adjudicate on its veracity - Consequently, the intended fresh evidence could not bear on the Commissioner's decision - See paragraphs 9 to 17.

Crown - Topic 7209

Examination of public documents - Freedom of information - Bars - Information re investigative techniques or harmful to law enforcement - The death of a nursing home resident who was burned in a bath prompted a newspaper's request under the Freedom of Information and Protection of Privacy Act (FOIPP) for access to complaints and investigations concerning the facility that she lived in and two other facilities operated by the same entity (Qualicare Health Service Corp.) - The Information and Privacy Commissioner directed Alberta Seniors & Community Support to give the newspaper access to a document bearing on that information (the Record) - The Commissioner determined that there was insufficient evidence or argument to establish that the Record was excepted from disclosure by s. 20(1)(a) of FOIPP (reasonable expectation of harm to law enforcement) or s. 25(1)(c) (reasonable expectation of harm to economic and other interests of a public body) - Qualicare applied for judicial review, arguing that the Commissioner imposed a standard of proof that exceeded the legislation's requirements - The Alberta Court of Queen's Bench dismissed the application - The Commissioner's decision was not unreasonable - The Commissioner did not require evidence of actual harm - Rather, the Commissioner required some evidence to support the contention that there was a risk of harm - That evidentiary standard was appropriate - Bare arguments or submissions could not establish a "reasonable expectation of harm" - See paragraphs 48 to 66.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - [See Crown - Topic 7209 ].

Crown - Topic 7220.08

Examination of public documents - Freedom of information - Bars - Prejudice to governmental economic interests - [See Crown - Topic 7209 ].

Crown - Topic 7241

Examination of public documents - Freedom of information - Judicial review and appeals - General - [See Administrative Law - Topic 3345.1 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The death of a nursing home resident who was burned in a bath prompted a newspaper's request under the Freedom of Information and Protection of Privacy Act (FOIPP) for access to complaints and investigations concerning the facility that she lived in and two other facilities operated by the same entity (Qualicare Health Service Corp.) - The Information and Privacy Commissioner directed Alberta Seniors & Community Support to give the newspaper access to a document bearing on that information (the Record) - The Commissioner determined that there was insufficient evidence or argument to establish that the Record was excepted from disclosure by s. 20(1)(a) of FOIPP (reasonable expectation of harm to law enforcement) or s. 25(1)(c) (reasonable expectation of harm to economic and other interests of a public body) - Qualicare applied for judicial review, arguing that the Commissioner imposed a standard of proof that exceeded the legislation's requirements - The Alberta Court of Queen's Bench applied the pragmatic and functional analysis and held that the standard of review to be applied to the Commissioner's decision was reasonableness - See paragraphs 18 to 46.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - [See Crown - Topic 7209 ].

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Administrative Law - Topic 3345.1 ].

Cases Noticed:

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350; 75 O.R.(3d) 309 (C.A.), refd. to. [para. 7, footnote 3].

Children's Lawyer for Ontario v. Information and Privacy Commissioner (Ont.) - see Children's Lawyer for Ontario v. Goodis et al.

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; 62 D.L.R.(4th) 437, refd to. [para. 7, footnote 3].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 8, footnote 4].

Siksika Nation v. Walji Holdings Ltd. et al. (2004), 350 A.R. 324 (Q.B.), refd to. [para. 10].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 11, footnote 5].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 18, footnote 8].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 18, footnote 8].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 19, footnote 9].

University of Alberta v. Pylypiuk et al. (2002), 310 A.R. 300; 2002 ABQB 22, refd to. [para. 20, footnote 10].

Alberta et al. v. Krushell et al. (2003), 340 A.R. 227; 2003 ABQB 252, refd to. [para. 20, footnote 11].

Shields v. Information and Privacy Commissioner (2004), 364 A.R. 55; 2004 ABQB 353, refd to. [para. 20, footnote 12].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 208 D.L.R.(4th) 107, refd to. [para. 21, footnote 14].

British Columbia Teachers' Federation et al. v. Information and Privacy Commissioner (B.C.) et al., [2006] B.C.T.C. 131; 2006 BCSC 131, refd to. [para. 22, footnote 15].

Macdonell v. Québec (Commission d'accès à l'information), [2002] 3 S.C.R. 661; 294 N.R. 238, refd to. [para. 25, footnote 16].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 25, footnote 16].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Dayco (Canada) Ltd. v. National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, refd to. [para. 25, footnote 16].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 29, footnote 19].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 30, footnote 20].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 32, footnote 22].

Architectural Institute (B.C.) v. Information and Privacy Commissioner (B.C.), [2004] B.C.T.C. 217 (S.C.), refd to. [para. 36].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 41, footnote 26].

Conseil de la magistrature du Québec c. Commission d'accès à l'information, [2000] R.J.Q. 638 (C.A.), refd to. [para. 42, footnote 27].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 44, footnote 31].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 45, footnote 33].

Information Commissioner (Can.) v. Prime Minister (Can.) (1992), 57 F.T.R. 180; 12 Admin. L.R.(2d) 81 (T.D.), refd to. [para. 52, footnote 39].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348, refd to. [para. 63, footnote 40].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 64, footnote 41].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282, refd to. [para. 65, footnote 42].

Chesal v. Nova Scotia (Attorney General) et al. (2003), 219 N.S.R.(2d) 139; 692 A.P.R. 139; 2003 NSCA 124, refd to. [para. 66, footnote 43].

Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.) (1998), 112 O.A.C. 121; 164 D.L.R.(4th) 129; 41 O.R.(3d) 464 (C.A.), refd to. [para. 66, footnote 44].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 20(1), sect. 25(1) [para. 50].

Counsel:

Walter Pavlic (Parlee McLaws LLP), for Qualicare Health Service Corporation;

Richard Drewry and Kate Hurlburt, for the Privacy Commissioner;

Matthew Woodley, for The Edmonton Journal, A Division of CanWest Media Works Publications Inc.

This application was heard on April 28, 2006, before Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 10, 2006.