Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.), 2013 ABQB 106

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 25, 2013
• Citations: 2013 ABQB 106;(2013), 558 A.R. 14 (QB)

Teachers Assoc. v. Privacy Commr. (2013), 558 A.R. 14 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.089

In The Matter Of The Personal Information Protection Act, S.A. 2003, c. P-6.5

And In The Matter Of Order P2007-014 Issued by the Office of the Information and Privacy Commissioner on March 13, 2008

Alberta Teachers' Association (applicant/respondent on Originating Application) v. Alberta (Information and Privacy Commissioner)

(respondent/applicant on Originating Application)

(0803 05729; 2013 ABQB 106)

Indexed As: Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

February 15, 2013.

Summary:

In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes. The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure. ATA filed an originating application for judicial review in April 2008. The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada with a direction that the matter be remitted for determination of the remaining issues. ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional. The Commissioner sought to set aside the amendments.

The Alberta Court of Queen's Bench allowed the amendments.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See second Administrative Law - Topic 3354 ].

Administrative Law - Topic 3342

Judicial review - Practice - Limitation period - [See fifth Administrative Law - Topic 3354 ].

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada (SCC) with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - The court rejected the Commissioner's argument that the amendments would contravene the SCC's order to consider the issues "not previously dealt with", namely the issues identified in the 2008 application - If the SCC had remitted the matter to the court to hear specified issues, the court would be bound by that order - However, that was not what the SCC had done - The court's discretion to permit other grounds to be heard was not restricted in any way by the SCC order - See paragraphs 14 to 16.

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - The court rejected the Commissioner's argument that the added Charter issues should not form part of the judicial review because they were not raised before the adjudicator - The argument was misplaced - The discretion to define the proper scope of a judicial review application rested with the judge hearing the application, not with a different judge who was considering whether to allow amendments - Further, the issue of the Charter's impact had been raised earlier - See paragraphs 17 to 19.

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - The court rejected the Commissioner's assertion that the amendments should be set aside as they were "not timely" and would lead to additional cost - Amendments were permitted for the purpose of determining the real issue between the parties - This was a fundamental purpose of the Rules of Court - The delay here was not caused by the ATA - The relationship between the Act, the Charter and the adjudicator's order was complex and the law was not yet settled - The goal of the amendments was to ensure that the real issue, which was the impact of the Charter's guarantee of free expression, was determined - See paragraphs 20 to 24.

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - No irreparable prejudice arising from the amendments had been shown - The only prejudice was the cost of dealing with the Charter issues - That was something that could be remedied with costs and it was a prejudice that arose from the claims, as such, not from the delay associated with adding claims by amendment - See paragraphs 25 to 27.

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - The court rejected the Commissioner's argument that the amendments added a new cause of action outside of the limitation period contained in s. 54.1 of the Act - The ATA's amendments amounted to the addition of a new cause of action - However, the limitation period did not apply to claims or causes of action - The limitation period applied to the bringing of the application - That limitation period had been met and did not preclude the addition of grounds or new claims for relief - See paragraphs 29 to 37.

Administrative Law - Topic 3354

Judicial review - General - Practice - Application - General (incl. amendment of) - In March 2008, an adjudicator found that the Alberta Teachers' Association (ATA) had breached s. 7 of the Personal Information Protection Act, which prohibited disclosure without authorization or consent, and s. 19, which permitted disclosure for reasonable purposes - The adjudicator rejected ATA's argument that s. 4(3), which dealt with disclosure for reasonable journalistic purposes, protected its disclosure - ATA filed an originating application for judicial review in April 2008 - The application was allowed solely on the basis that the Information and Privacy Commissioner's inquiry was not held within the time allowed, but that decision was subsequently overturned by the Supreme Court of Canada (SCC) with a direction that the matter be remitted for determination of the remaining issues - ATA filed an amended originating application in which it sought declarations that the Act and its Regulations were unconstitutional or, alternatively, that the adjudicator's order was unconstitutional - The Alberta Court of Queen's Bench allowed the amendments - The court rejected the Commissioner's argument that the amendments were indicative of bad faith - The delay in making the amendments was not ATA's fault - There was no re-litigation nor abuse of process - The merits of the application, including the Charter arguments, had never been litigated - See paragraphs 38 to 40.

Practice - Topic 3

General principles and definitions - Policy of practice rules - [See third Administrative Law - Topic 3354 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2008),  21 Alta. L.R.(5th) 24 (Q.B.), affd. (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. 7].

United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al. (2011), 509 A.R. 150; 53 Alta. L.R.(5th) 235; 2011 ABQB 415, varied (2012), 522 A.R. 197; 544 W.A.C. 197; 57 Alta. L.R.(5th) 249; 2012 ABCA 130, refd to. [para. 10].

Polansky Electronics Ltd. v. AGT Ltd. et al. (2002), 306 A.R. 333; 2002 ABQB 172, refd to. [para. 16].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 14 Alta. L.R.(4th) 221; 2003 ABCA 98, refd to. [para. 21].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (2000), 269 A.R. 49; 82 Alta. L.R.(3d) 382; 2000 ABQB 440, refd to. [para. 24].

Manson Insulation Products Ltd. v. Crossroads C & I Distributors et al., [2011] A.R. Uned. 82; 2011 ABQB 51, refd to. [para. 24].

Laasch et al. v. Turenne et al. (2012), 548 A.R. 79; 2012 ABQB 566, refd to. [para. 25].

Pridgen v. University of Calgary (2010), 497 A.R. 219; 33 Alta. L.R.(5th) 152; 2010 ABQB 644, affd. (2012), 524 A.R. 251; 545 W.A.C. 251; 350 D.L.R.(4th) 1; 2012 ABCA 139, refd to. [para. 30].

Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al. (1994), 153 A.R. 225; 18 Alta. L.R.(3d) 92 (Q.B.), refd to. [para. 33].

Counsel:

Anne L.G. Côté (Field LLP), for the applicant/respondent on Originating Application;

Glenn Solomon, Q.C. (Jensen Shawa Solomon Duguid Hawkes LLP), for the respondent/applicant on Originating Application.

This application was heard on January 25, 2013, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on February 15, 2013.