University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 100

Court of Queen ’ s Bench of Alberta Citation: University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 100 Date: 20110222 Docket: 1003 05907;1003 08133 Registry: Edmonton In the Matter of the Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 , as amended And In the Matter of Order F2009-023 Issued by the Officer of the Information and Privacy Commissioner, Dated February 26, 2010 Between: Action No: 1003 05907 The Governors of the University of Alberta Applicant - and - Information and Privacy Commissioner and Dr.

Anton Oleynik Respondents - and - Association of Academic Staff of the University of Alberta Intervenor (proposed) And Between: Action No: 1003 08133 Association of the Academic Staff of the University of Alberta

Applicant - and - Information and Privacy Commissions, The Governors of the University of Alberta and Dr. Anton Oleynik Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This matter concerns two applications for judicial review of a decision (Order F2009-1023) by an adjudicator delegated by the Respondent Information and Privacy Commissioner, The Respondent, Dr. Anton Oleynik, relying on the Freedom of Information and Protection of Privacy Act ( FOIP ), RSA 2000, c.

F-25, sought email records from the University of Alberta that mentioned his name and which were sent between Dr. Richard Szostak, a University of Alberta professor who was also a member of the Social Sciences and Humanities Research Council (SSHRC), and SSHRC officials. The University’s Information and Privacy Office refused to provide the records on the basis that they were not in the University’s custody or control. The Adjudicator concluded that the records were within the University’s custody and control, and that the University breached its obligations to Dr.

Oleynik under FOIP . [ 2 ] The first judicial review application was commenced by the University of Alberta under Action #1003 05907, and the other was commenced by the Association of the Academic Staff University of the Alberta (AASUA) under Action #1003 08133. The AASUA also seeks intervenor status in Action #1003 05907. The University opposes AASUA’s application for judicial review, arguing that it should be dismissed, but has withdrawn its objections to AASUA participating as an intervenor in its judicial review application. Dr. Oleynik opposes AASUA’s intervenor application.

The University’s application was set to be heard before me on February 1 and 2, 2011, but AASUA’s applications had not been set down. [ 3 ] The parties appeared before me to argue what order these applications should be heard, although all agreed that I should be seized with all three matters - the two judicial review applications and the intervenor application. I adjourned the University’s judicial review application to decide in which order the applications should be heard. I note that no one has applied to consolidate these two matters.

Facts [ 4 ] At this point in the proceedings, it is only necessary to set out a short

summary of the relevant facts. The Records Request [ 5 ] Dr. Oleynik applied to the University’s Information and Privacy Office for the following records for the time period October 15, 2007 to April 18, 2008: Email communications between, on the one hand, a member of SSHRC [Social Sciences and Humanities Research Council] Selection Committee No. 15 from U of Alberta, Dr. Richard Szostak (Rick.Szostak.ualberta.ca) and, on the other hand, SSHRC officials and other interlocutors in which my name (Oleynik or Oleinik) is mentioned. [ 6 ] The University wrote Dr.

Szostak asking whether he had any records responsive to this request. He replied that SSHRC had directed that all SSHRC electronic correspondence be deleted, and he did so when he returned from SSHRC meetings, and that the SSHRC committee members were further directed by SSHRC to bring all other records to Committee meetings and leave them with the SSHRC for destruction by SSHRC. The University wrote Dr. Oleynik that it had not retrieved any responsive records. The Inquiry [ 7 ] Dr. Oleynik complained to the Office of the Information and Privacy Commissioner, and eventually an Inquiry was scheduled.

The Inquiry identified the issue in question as: a. Did the Public Body meet its duty to the Applicant as provided by s. 10(1) of the Act (duty to assist)? [ 8 ] The parties to the Inquiry were the University and Dr. Oleynik; no affected parties were named in the Inquiry. The Inquiry was conducted through written submissions, including submissions in response to the Notice of Inquiry and Affidavits from University officials and employees, including Dr. Szostak.

The Adjudicator also directed the University to answer specific questions, including detailed questions about the University’s mandate and about the University’s Faculty Agreement. These questions arose within the context of the Adjudicator’s review of decisions by the Ontario Information and Privacy Commissioner. [ 9 ] The University argued that any responsive records were not in its custody or control, as Dr. Szostak’s participation in the SSHRC grant process was outside of his professional employment with the University.

Further, it argued that even if there were records in its custody and control, it had met its duty to assist and additional electronic records could not be created under s. 10(2) of FOIP . The Adjudicator’s Decision [ 10 ] The Adjudicator held that the University had custody or control of responsive records because any emails would have “passed through its servers” or because the University had “some right to deal with the records”. As a result, the Adjudicator held that the University had a duty to assist Dr.

Oleynik and that it had failed to do so by failing to provide sufficient evidence regarding the searches it performed and why the University was unable to provide the requested records. However, because the University had

provided that information in the course of the Inquiry, the Adjudicator did not order the University to provide any further information to Dr. Oleynik. The Judicial Review Applications [ 11 ] The University sought judicial review of the Adjudicator’s decision that it had custody or control over any records responsive to Dr. Oleynik’s access request. In particular, its Originating Notice sought to quash the Adjudicator’s Order and sought further declarations that: a. The records in question were not in the University’s custody and control within the meaning of ss. 2, 4, 6 and 10 of FOIP ; b.

Neither having “some right to deal with records” or having records “pass through its servers”, brings the records with the University’s custody and control; c. Records that relate to SSHRC and which are under the custody and control of SSHRC, are not within the University’s custody or control; and d.

The University’s mandate does not bring the records within its custody and control. [ 12 ] AASUA’s Originating Notice alleged many of the same issues, seeking an order quashing the Adjudicators decision, and declarations that the records were not in the custody or control of the University of Alberta, that having “some right to deal with records” does not bring the records within the University’s custody and control as set out in ss. 2, 4, 6 and 10 of FOIP, and that the University does not have records in its custody and control of all records “passing through its servers.” ASSUA further relied on a number of grounds in support of its application, including para. 2(a): In so determining, the Adjudicator exceeded her jurisdiction or made, inter alia , the following errors of law, errors of fact, or errors of mixed law and fact: a.

The Adjudicator failed to give notice to the Applicant and failed to give the applicant any opportunity to present evidence or argument before construing the Faculty Agreement to which the Applicant is a party. [ 13 ] The Commissioner and the University applied to strike ASSUA’s Originating Notice; Moreau J. struck all but paragraph 2(

a) of the Originating Notice, and indicated (Transcript, p.11, ll. 16-22): Accordingly I dismiss the application of the Commissioner and the University to strike the amended originating notice filed by the Association. The motion will proceed, as counsel has undertaken to do only on the issue of the impact, if any, of the failure to give notice to the Association of the review. The merits of the adjudicator’s decision based on the record filed will be addressed solely in the judicial review application commenced by the University. Issues [ 14 ] The issue before me is in what order the two judicial review applications and the intervenor application should be heard.

Submissions [ 15 ] The University argues that ASSUA’s judicial review application, as constrained by Justice Moreau’s order, is conceptually distinct from the University’s judicial review. It submits that the primary focus of judicial review should be on the substantive matter – whether or not the University had custody and control of the records. It further argues that ASSUA’s Amended Originating Notice and Intervenor Application demonstrated that this issue was also its main concern. Counsel proposed that I seize myself of the matter and proceed to hear the University’s judicial review immediately.

The University had no objection to AASUA’s Intervenor Application, as long as it did not delay the hearing. It was suggested that ASSUA prepare an Intervenor’s Brief to be filed after argument, rather than granting an adjournment. [ 16 ] ASSUA argued in response that, in the interests of judicial economy, its judicial review application be heard first, noting that if its application were granted, the matter would be sent back to the Adjudicator so that ASSUA could participate and lead more evidence. Thus, neither the Intervenor Application or the University’s judicial review would be necessary.

Further, it noted that although the University had consented to ASSUA’s Intervenor Application in the University’s judicial review, Dr. Oleynik had not, and that the question was still one at the Court’s discretion whether or not there was consent. [ 17 ] Dr.

Oleynik agreed with ASSUA that it was important to determine for the purposes of precedent whether an Academic Staff Association was an affected party under FOIP . [ 18 ] The University replied that while it was important to know whether an Academic Staff Association is an affected party under FOIP when a Faculty Agreement is referenced in an adjudication, that issue distracts from the substantive issue that was before the Adjudicator.

It argued that it would be ‘fundamentally unfair” to hear ASSUA’s judicial review application first, particularly if ASSUA was successful and the University’s judicial review was never heard on what it considers to be a vital issue. Because the outcome might be different on a subsequent adjudication, the question of whether the University had custody and control might not be addressed by a Court.

Moreover, if the matter is sent back and the question of custody and control arises again, the adjudicator will be without the Court’s guidance on the issue, and the parties could be back again in the same position, but much later. Analysis [ 19 ] No one has applied to consolidate these two files, although the Court has discretion to do so under R. 3.72, which provides:

(1) The Court may order one or more of the following: (

a) that 2 or more claims or actions be consolidated; (

b) that 2 or more claims or actions be tried at the same time or one after the other; (

c) that one or more claims or actions be stayed until another claim or action is determined; (

d) that a claim be asserted as a counterclaim in another action.

(2) An order under subrule (1) may be made for any reason the Court considers appropriate, including, without limitation, that 2 or more claims or actions (

a) have a common question of law or fact, or

(

b) arise out of the same transaction or occurrence or series of transactions or occurrences. [ 20 ] I find that both judicial review applications arise out of the same transaction or occurrence, and that while they raise different questions of law, they should be tried one after the other in accordance with R. 3.72(1)(b). [ 21 ] I appreciate ASSUA’s argument that if the Adjudicator has failed to give an affected party notice and the right to present evidence and argument, this constitutes an error requiring that the matter be remitted back to the Adjudicator for a new hearing. [ 22 ] On the other hand, as the University points out, if the matter is remitted for a new hearing without benefit of the Court’s guidance on the important issue of what constitutes control and custody of records under FOIP , the matter may once again come back before the Court in yet another judicial review. [ 23 ] I therefore order that the two judicial review applications be heard concurrently, and that ASSUA’s judicial review in Action #1003 08133 proceed first, immediately followed by ASSUA’s Intervenor’s Application in Action #1003 05907.

A short recess will likely be necessary while I consider whether to grant intervenor status in #1003 05907. [ 24 ] If I grant ASSUA intervenor status, it may then participate in the University’s judicial review in Action ##1003 05907. [ 25 ] Given the complexity of this case, already apparent from the materials filed to date, I will likely reserve and issue reasons for my decisions in both judicial reviews at the same time.

This may mean that if ASSUA’s judicial review application is granted, my reasons in the University’s judicial review will be obiter , but at least then the Adjudicator will have the benefit of the Court’s guidance in this matter. [ 26 ] If Counsel are unable to come to an agreement regarding setting the matters down and filing briefs, they may contact my judicial assistant to arrange a hearing to resolve those matters. Heard on the 1 st day of February, 2011. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2011. Donald Lee J.C.Q.B.A. Appearances:

J. Cameron Prowse, Q.C. and Noël Papadopoulos Prowse Chowne LLP for the Applicant Sandra M. Anderson and Anne L.G. Côté Field LLP for the Respondent, The Governors of the University of Alberta Dr. Anton Oleynik On His Own Behalf